Boston MA - Tenant Accusation and Restraining Order on Landlord

49 Replies

Hi Landlord,

I want to brainstorm the following scenario:

I have a newly occupied tenant who has cleans record. She moved into my 1-Bed unit 3-4 months ago, and in her mid-30. Since the beginning, she struggled and paid rent late all the time. She only pays rent when I text/call to remind her. 

Recently, I got a message from her through email accusing me that I threat her and put a lot of emotional distress toward her. She also accuses me of being sexist and ageist. She gave me 1-2 week notice to vacant, and that I return her deposit. If I don't, she will take legal action against me. Finally, in her email, she told me not text/call or talk to her in person or she will put a restraint order on me. 

Can she really do that? I only call her to ask for my rent. I know she is a bit paranoid though. I usually collect my rent weekly and due on Sun. One time she did not pay until Wednesday. I called and left a message saying that if she does not pay by Friday, I would start an eviction process. I thought it was reasonable ....

FYI: she is leasing the unit for 12 months and 30 days notification to leave contract.

Let's discuss this topic ...

First of all - I would totally let her leave, as far as the deposit goes, follow your lease. If she does leave the place in good shape etc then just return it like you would otherwise give her written notices after she moves out on what her return deposit is and why. 

As far as if she can do that, I don't think so unless she has proof. Still I won't want to waste my time by trying to keep her as a tenant cause she will just cause more issues then it would take to get a new one. 

you are being reasonable, she is crazy.  I would send certified letter stating what she owes you and let her go.....she will be nothing but problems

I agree. I don't think she can win any case against you just for trying to collect rent. And even if she doesn't win, just going to court is stressful, expensive and time consuming. However you should b happy she is going. She sounds like trouble. 

Medium crab1 copyNed Carey, Crab Properties LLC | http://baltimorerealestateinvestingblog.com/

Thanks @Dilpreet Singh @Mike R. @Ned Carey

I have been renting for almost 2-year now, but this is the first and crazy. I am pretty responsive with issue when tenants call. She put a wall paper on my wall without my written permission. When she is completed, she called/texted me a photo. I was like what is going on, but I did not give her any problem. 

My question is, should I return her 2-week deposit and cleaning deposit on October 1? Also, should I evict her or send the Constable over if she stops paying this Sat. 9/26 (due day for weekly payment) as she also sent me an email that she is leaving by the end of the month?

Hi Chan,

I agree with the previous posts.  Thank her for her suggestion to vacate, let her leave, and be happy when she actually is gone.

As far as the restraining order is concerned, she cannot take this course under Massachusetts Law, unless you fall into the any of the following with this person.  

A restraining order is covered under Mass General Law Chapter 209a and it is an order that protects someone from being abused by a current or former member of the household or family, and/or that the parties have been in a dating relationship. 

If you feel as though you and she are part of this type of relationship you can check further at https://malegislature.gov/Laws/GeneralLaws/PartII/...

You can also find additional information concerning Landlord/Tenant laws at https://malegislature.gov/Laws/GeneralLaws/PartII/...

Best of luck,

Victoria

Victoria Avery, Fun-Properties | [email protected] | 9782238911

@Ned Carey If I hire a lawyer to represent me at the court to defense me from the accusation, property damage, lease broken, .... and that I won the case, would the court order her to pay for all my legal fee?

@Chan K.

as others have said here... let her go and "take this loss"  as a huge WIN !

I do have one question, if she is on a year lease and perhaps I am reading it wrong, did you say you collect her rent weekly ?  I ask this because if you signed a standard 1 year lease that usually states that rent is due monthly and your picking it up weekly, she might have a point.

I would not recommend going to court, but if you are not an LLC or business entity, then why waste the money on a lawyer...just do the eviction yourself (the right legal way).

Did you do all the proper things with the security deposit from her?  This is important!

Say nothing until after she leave in this week or two, then if you did the proper thing with the sec dep, then if you want to take on a challenge, deduct the cost of removing the wallpaper or her terminating out of the lease from the sec dep.  But you better be right.

Be done with her @Chan K. Serve the 14 day notice. You have to go through the process to protect yourself. If she moves out and cleans the place give her back her deposit and you don't have to go to court. Let me know if I can help out in any way.  

@Chan K. This is a "course" (fairly inexpensive) in Screening Tenants and Tenant/Landlord Law. If you put 1/100 as much effort into this "business" as you did Engineering you might not have these basic questions.

I think you are lucky so far and I agree with @Victoria Avery (by the way Vic, how do you know so much about restraining orders;-)

@Rich N. I have this property under an LLC, but it is a single member entity. I think it is disregard and I can represent myself in court. The reason I consider the lawyer earlier, because the tediousness between attending court/work as Ned mentioned earlier.

On my 1-year lease, I did mention as collecting rent on the 1st of the month on paper, but I told her I would collect weekly as optional for her (cheaper to get into the unit). She was fine initially, and I told her that she can convert to monthly anytime. I think she just struggles financially (problem managing her money). She is a young professional with a bachelor, and make decent money ... Her lifestyle is too expensive. 

For the deposit, I collected 2-week and cleaning deposit, in which I put in a saving business account (untouched). I don't know if the cleaning deposit is considered "security deposit). I don't think I stated "security deposit" like that that. I just stated "cleaning deposit".

@Rob Beland Rob, depending on how it goes down, I might need your help. I think I might pursue this option:

" Say nothing until after she leave in this week or two, then if you did the proper thing with the sec dep, then if you want to take on a challenge, deduct the cost of removing the wallpaper or her terminating out of the lease from the sec dep. But you better be right. ". 

You can run all the paperwork, and I just show up in court with you. It would be a good experience for me - maybe. I think she might be smart enough to keep paying until she moved out - will see after Mon. 

@Mike Hurney Mike, I did try to screen well, but you can never be 100% sure. I think the Mass Tenant/Landlord Law document seems generic, and too high level. You are correct that I did not spend as much as I did in my profession/degree. The shift will begin at some point when my cash flow is comparable. At the moment, I am only sustaining my real estate. You also correct that I have been so lucky so far in the past two years as I don't have much issue with the tenants (knock on wood) :). This allows me to gain confident and experience slowly as a landlord. The drawback is I don't learn much when there is no issue (I don't want to seek them though). I try to lean my process from time to time, but not as much as I want to. I also don't streamline a lot of the work - by choice.

@Victoria Avery Yea, the restraint order comment is great. Why do you know so much about it ;) ?

Originally posted by @Chan K. :

@Rich N. I have this property under an LLC, but it is a single member entity. I think it is disregard and I can represent myself in court.

A single member LLC is a disregarded entity for tax purposes but not of legal purposes. Although sometimes exceptions are made for tenant landlord issues like rent court so that an entity can represent itself.

Medium crab1 copyNed Carey, Crab Properties LLC | http://baltimorerealestateinvestingblog.com/

@Chan K.

with your statement that you wrote this down....

For the deposit, I collected 2-week and cleaning deposit, in which I put in a saving business account (untouched). I don't know if the cleaning deposit is considered "security deposit). I don't think I stated "security deposit" like that that. I just stated "cleaning deposit".

wow, um, I really think you should let her go, return all funds and walk away from this with huge lessons learned.  Next time, try to follow the lease, guidelines and laws.

1. collect first, last and sec dep (if you wish a lock/key fee too).
2. if lease states monthly, collect monthly. Serve 14 days on 2nd day if they don't pay.
3. if your lease states the lessor is the LLC and you file the 14 or 30 day notice and the court paper with the LLC name, the judge may toss it out and require you to resubmit it with a lawyer. I hope the day comes that courts finally accept it as just us and nor a company full blown.

Note: I hope your business savings account that is untouched is only for her and not co-mingled with any other funds.

Originally posted by @Ned Carey :
Originally posted by @Chan K.:

@Rich Ng I have this property under an LLC, but it is a single member entity. I think it is disregard and I can represent myself in court.

A single member LLC is a disregarded entity for tax purposes but not of legal purposes. Although sometimes exceptions are made for tenant landlord issues like rent court so that an entity can represent itself.

maybe in Maryland and maybe here in MA, but the one time I did see it in court, the judge basically said two either mediate it between the two or if it came back to him, he would toss it out without the lawyer.  The tenant didn't understand it and went off to mediation with the LL....lucky LL

A little off topic but in MA there is no law that states an "owner" of an LLC can't represent themself in housing court. What exists is prior case law (precedent) where housing court judges are actively throwing out eviction cases when an attorney is not representing the LLC in court. The reason is that the landlord/manager of LLC wants to separate himself personally from the LLC with respect to liability but wants to be personally involved in the eviction. You cant have it both ways. The courts are requiring professional representation to ensure the landlord is truly separated from the entity. @Chan K. @Rich N.

@Rob Beland @Ned Carey @Rich N. Thank you for the information and court clarification.

The prior landlord that evicted one of his tenants told me that it sort of depending on the judge. He has his properties under an LLC. In one situation, he tried to evict a tenant without a lawyer, and his paperwork was discard. In the other time, he brought in a lawyer, but the judge told him it was not necessary with the lawyer.

@Rich Ng It is a bit funny, but this is not on purpose. I have the same business name/account under two different banks. One bank mingles the deposit, and the other bank only show deposit for 1-tenant. 

I am getting smarter now and took Rob's advice. For my newly tenants, I don't collect security deposit, but only collect first/last month. 

According to the letter that this tenant sent me, it sounds like she has experience or knowledgeable about the deposit issue. I think she might have done something like this in the past. 

@Rich Ng I have 16 units so far. If I was to collect security deposit, would you assume that I have 16 saving accounts for them (one for each)? How do you structure your security deposit account? I think the bank will start to charge additional fee when the number of accounts exceed certain level. 

  

I second that you should send a certified letter that offers to let her out by a certain date (you need to put a date, and not long...maybe a week) and that you both agree to end the lease early and that you will refund the deposit MINUS any due funds (missing rent).

In the meantime, continue with the eviction process. This way, if she doesn't move out and doesn't pay, you get her out by the sheriff or whoever.

She's probably all talk regarding taking you to court. If she does, she'd have to make the court suit against your LLC since I assume the lease is between your LLC and her. If she brings YOU to court by name, it would make no sense and should be thrown out. I don't think something this simple would require hiring a lawyer, but don't quote me. It just seems petty. If by chance you go to court, you simply bring all your proof...letters, proof of payments received vs. not...phone records showing how often you DON'T call/text her. This is of course assuming your state allows a LLC member to represent themselves vs hiring a lawyer.

Anyway, just get rid of her. And you will have to communicate, so if she wants to file a restraining order over that, then tell her to have at it. Don't let this woman get you stressed out.

Nicole A., New Page LLC | [email protected] | 305‑537‑6252

And I have just one savings account for all security deposits. One account per unit seems unnecessary. 

Nicole A., New Page LLC | [email protected] | 305‑537‑6252

Originally posted by @Chan K. :

@Ned Carey If I hire a lawyer to represent me at the court to defense me from the accusation, property damage, lease broken, .... and that I won the case, would the court order her to pay for all my legal fee?

 While the court may find in your favor....good luck actually collecting from her.

Also I do suggest that if you end up in court....or in front of any sort of disciplinary body like the Boston Fair Housing Commission....you absolutely must get a lawyer. The tenant friendly policies in Massachusetts (I am originally from there, have been a Realtor there and still invest there) are quite absurd.  Merely asking the question of "Where are you from?" is a Fair Housing violation in Massachusetts. The bar is set very very low for you to get in a lot of trouble there. A couple years ago a Realtor was fined almost $75,000 for as asking that simple question in the course of casual conversation with a client.

Medium logo lf re cire box white bboxRussell Brazil, Associate Broker w/ Long & Foster | [email protected] | (301) 893‑4635 | http://www.RussellBrazil.com | MD Agent # 648402, DC Agent # SP98375353, VA Agent # 0225219736, MA Agent # 9052346 | Podcast Guest on Show #192

Originally posted by @Nicole W.:

And I have just one savings account for all security deposits. One account per unit seems unnecessary. 

How do you account for the return of the correct interest to each tenant?

I'll agree with the other MA landlords that pretty much think you should return the deposit no matter what condition the place is in or how much rent she actually stiffs you.

You did NOT handle the deposit even close to right so she would probably win and get treble damages from you.

First issue is that you must have a separate account for each deposit.  An escrow account titled in the tenants name and you have to provide the account number and bank info to them.  If you bring it to a bank in MA (Which is also a requirement, even if you regularly use a branch in say NH open the account in an MA branch, it's the law...) they know the deal and usually have these specific accounts and if you are doing your business banking with them you should not run into fee issues.  If you do tell them you will be closing your accounts there and going to another place.

Next can't collect a "cleaning deposit" in MA.  IF you had done everything else right you might roll the dice on this one since you only did the rest of the deposit as 2 weeks.  You are allowed up to 1 month so as long as the cleaning deposit didn't exceed that additional amount you could try to argue it was all just security deposit but you were just trying to make it more explicit to her things that it would be used for.  Still could get nailed but since you should be under the deposit limit it could have been worth the chance.  Believe it or not there ARE actually some MA judges that are reasonable...

For longer term tenants you also need to send them any accrued interest annually or you can be on the hook for treble damages again.  Oh and that usually means for the entirety of the deposit, not just the $1.36 you didn't send them...

Good times! 

Medium rre logo web rgb w motoShaun Reilly MBA, Reilly Real Estate, LLC | [email protected] | 1‑800‑774‑0737 | http://www.MassHomeSale.com | Podcast Guest on Show #43

@Chan K. @Rich N. you can have one account for all of your security deposits as long as it is separate from your operating account. It needs to be set up properly so that its not considered an asset of yours. Having multiple security deposits in one account is fine but you need to do some math to figure out the interest you pay each time somebody moves out and you have to refund the deposit with interest. The easy thing is to put the money in a non-interest bearing account. Either way as Chan said I skip the security deposit altogether and make sure I screen my tenants. 

@Chan K.

@Rich Ng It is a bit funny, but this is not on purpose. I have the same business name/account under two different banks. One bank mingles the deposit, and the other bank only show deposit for 1-tenant.

Chan --> you should figure this out and not have it co-mingled. You know about Treble damages potential?

I am getting smarter now and took Rob's advice. For my newly tenants, I don't collect security deposit, but only collect first/last month.

Chan --> I do not see any advice in this thread, so I assume it was a private chat.  Please elaborate if you can?

@Rich Ng I have 16 units so far. If I was to collect security deposit, would you assume that I have 16 saving accounts for them (one for each)? How do you structure your security deposit account? I think the bank will start to charge additional fee when the number of accounts exceed certain level.

Chan --> for my peace of mind, I do keep them separate. Its a pain, but I do it.   Wish my bank had the subaccounts that a handful of banks supposedly do have in Mass.

Originally posted by @Rob Beland :

@Chan K. @Rich N. you can have one account for all of your security deposits as long as it is separate from your operating account. It needs to be set up properly so that its not considered an asset of yours. Having multiple security deposits in one account is fine but you need to do some math to figure out the interest you pay each time somebody moves out and you have to refund the deposit with interest. The easy thing is to put the money in a non-interest bearing account. Either way as Chan said I skip the security deposit altogether and make sure I screen my tenants. 

Hmm....

Rob I usually agree with everything you say about tenant landlord law in MA, but that just doesn't sound right to me.

I have heard that it must be a separate account in the tenants name.  I also believe it has to be in an interest bearing account, or you just owe a default 5% on the money.  That would cut down on the math issues but cost you a decent amount of money since you are getting nothing on the money.

It really isn't a big deal to have a separate account for each of them.  You just get a lot of statements...

Medium rre logo web rgb w motoShaun Reilly MBA, Reilly Real Estate, LLC | [email protected] | 1‑800‑774‑0737 | http://www.MassHomeSale.com | Podcast Guest on Show #43