Help! My lawyer says I can't evict them ! A true nightmare !

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Help! My lawyer says I can't evict them ! A true nightmare !

Ewan Tong
Real Estate Investor · Cambridge, MA · Member since 2015 · 26 posts · 5 votes

Let me take a deep breath before telling my story...

I bought a bank-owned two-family on auction for 460K, 100K-120K below the market price. Before the auction, I knew the property was occupied but I didn't know the identities of the occupants. My original plan was to talk to the occupants after the closing, asking them either to sign a Tenant At Will lease or leave the property.

The next day after closing, I went to talk to the occupants, but they refused to talk to me but referred me to their lawyer. Here is what their lawyer told me:

Then, I talked to my closing lawyer, who immediately investigated into this issue. Here is what my lawyer told me:

I was shocked when I realized that I was in such a predicament. While I feel sorry to hear the crazy story, I feel sorry for my investment too. But I do have the following questions:

  1. What if the couple intend to stay there for ever? I will be definitely willing to let the old couple stay for free for a few months before they eventually find a senior home that suits their needs. I try not to be cynical, but to my knowledge, there are at least three generations of their family members living in the two units. I suspect how motivated they are in "looking for a senior home." The two-family has 2 living rooms, 6 bedroom, and 2 bedrooms in total. I suspect how "actively" the children could be looking to place the old couple in senior home when the entire family could live there for free. What if they maliciously take advantage of me and stay for ever?
  2. Are we landlord-tenant relationship? Will I be held liable for landlord obligations? We have no lease, no rent payment. In this particular case, are the old couple and I in a landlord-tenant relationship? Will I be held liable for landlord obligations, such as repair, safety, heating and etc. 
  3. Should I buy homeowner insurance for this property? If the old couple fall due to uneven floor and sue me for negligence, would my homeowner insurance pay for that?
  4. What should I do next? What is the best course of action you would recommend in this particular situation?

Thank you so much for reading my case and any feedback is greatly appreciated!

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Nathan GesnerBusiness Member
Moderator
Real Estate Broker · Cody, WY · Member since 2010 · 28k+ posts · 41k+ votes
10y

I always recommend against buying an occupied property unless you communicate with the Tenants first AND they have a written agreement prior to closing the sale. That simple step would have saved you a lot of heartache.

You may also have grounds for a lawsuit against the listing agent. Why? Because they should have known the situation with the current occupants and they are required to disclose that by law. If what you say here is true, they violated their legal responsibility and their code of ethics. As a fellow REALTOR, I would file a complaint against them in a heart beat.

My recommendation is for you to contact an attorney that specializes in evictions and start that process. Their situation is sad (if it is true) but it is their fault, not yours. They've had plenty of time to arrange a new living situation but refuse, so giving them more time won't fix anything.

For those reading this: do you research before buying!!!

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  • Jymme Butcher
    Residential Real Estate Broker · Fernandina Beach, FL · Member since 2012 · 7 posts · 1 vote
    10y

    My sympathies.  I predict that you will have many, many, months before you can do what you planned with your units.  Massachusetts, particularly in the Boston area, is extremely pro-tenant, particularly when the tenant is sympathetic, or part of a protected class.  

    However, it does sound like getting rid of the non-elderly tenants, whether by eviction or negotiation, is more likely to be successful.  Be careful with the lead paint issue if there are children though.

    I agree with everyone who said to find yourself an expert attorney, but you should educate yourself as well:

    https://masslandlords.net/laws/eviction-process-in...

    http://www.nolo.com/legal-encyclopedia/tenant-defe...

    1Reply
  • Matthew Anderson
    Nashville, TN · Member since 2015 · 83 posts · 38 votes
    10y

    Ewan.  As usual, if someone on BP is giving you legal advice and it does not say Attorney at Law at the bottom of their post (and even then maybe) DON'T LISTEN.  None of these posts have mentioned the fact that there are multiple issues involved: what are your rights as a bonafide purchaser for value, did you have constructive notice of the fraud or defective title because of the presence of the previous owners in the property, what effect does a potential fraud have on the title, and many other questions involved in this situation.

    Talk to an attorney in your area who has handled these kinds of situations before; there are many contract, fraud, and real estate litigation issues here.  Do not do anything before doing so.  You do not want to be the named defendant in a lawsuit featuring a poor old defrauded couple as the plaintiffs.  

    1Reply
  • Matthew Kreitzer
    Attorney · Winchester, VA · Member since 2015 · 726 posts · 387 votes
    10y

    It isn't impossible to evict an elderly couple. I've seen it happen in my state. The problem with elderly evictions is that they have what are called "equitable defenses" to the eviction proceedings. You may also run the risk of a sympathetic judge. You may want to do a secondary consultation with a Landlord/Tenant lawyer as opposed to your Real Estate Attorney. 

    The landlord/tenant lawyer will probably advise you of similar, but not quite as restrictive courses of action. Whether or not you are able to evict them, do you really, really want to? There are alternatives here. So long as they stay in the property, they may be liable for the reasonable rent based on a theory of implied contract. Subject to local rules.

    Discuss all these issues with a landlord/tenant lawyer before making a decision. This lawyer should be licensed in your state. Do not act on any of the above information. It is basic educational information. I am not licensed in your state, and do not know your state's common law.

    2Reply
  • Douglas Snook
    Attorney · Attleboro, MA · Member since 2015 · 414 posts · 165 votes
    10y

    I would get a second opinion from an attorney that does EVICTIONS not closings. He is right, the title is clear, but that is not the issue.

    I would start eviction as there are two units and you need to know who is there and regain possession of at least one of the units to start renovations and get some money coming in. The court may give the elderly couple some extra time but the others need to get out. Also with the eviction they may be in a better place to get elderly housing as it is now an emergency. Worse case you can keep the pressure on even if the court gives them 6 months for a review. You can eventually get them out. They would have to pay some kind of use and occupancy even if it is below market rate.

    0Reply
  • Ryan Dossey
    Real Estate Broker · Indianapolis, IN · Member since 2014 · 3k+ posts · 2k+ votes
    10y

    Don't give them 100 days. Start the process. 

    1Reply
  • Ewan Tong
    OP
    Real Estate Investor · Cambridge, MA · Member since 2015 · 26 posts · 5 votes
    10y

    Thank you all for support! 

    I called 4 landlord-tenant lawyers today. But none of them wanted to touch the case, saying that they have no experience in such complicated case, longtime former owner, handicapped, senior, victim of mortgage scam. 

    Eventually, one laywer referred me to arguably the best landlord lawyer in Boston. I am trying to get in touch with him. But I am sure he is going to be very expensive. I researched online and got to know that it took 3 years to evict a similar case in Boston. I am not sure if it is true. ><

    0Reply
  • Alexander Merritt
    Investor · Baltimore, MD · Member since 2014 · 163 posts · 51 votes
    10y

    @Ewan Tong

    I'm still new at this but I disagree with @Account Closed. I don't think there is a landlord tenant relationship in place. If you were buying this home as your personal residence, would that automatically mean they are now your tenants until they vacate? Personally I don't think so. Also, you have no verbal or written agreement. In fact, you have written contestation from a lawyer to the opposite! You can't prove to a judge they are your tenants let alone that they owe you money for rent. I would talk with a RE attorney that specializes in evictions to see if you can even file for eviction.

    Having said that... it may not be a bad idea to file anyways. This then starts a legal paper work trail that shows that you are not willing to let them live rent free in the house, unless you can work out some sort of written agreement agreed upon by both parties. I would send them an official notice through certified mail that they either need to sign a lease, or they have 45 days to vacate the property from the time the notice is received. Also, I would possibly contact the police and see what their view is. If necessary you might consider filing a trespassing/squatting charge. Again, I'm not sure if that will work, but it will give you legal paperwork form the police saying there was an issue.

    I'm not a lawyer and this is not legal advice. This is my own personal view. Good Luck.

    0Reply
  • Account Closed
    San Jose, CA · Member since 2015 · 4k+ posts · 3k+ votes
    10y

    @Alexander Merritt I have no problem with people disagreeing with me :-)

    The thing is, I think people are making this more complicated than it has to be.  The issue is no longer about an owner living in a house that's in the middle of foreclosure.  So, they no longer have any rights associated with that.  And that's where they had rights.  And tenants have rights when a house is in foreclosure.  But, the house is no longer in foreclosure.  So, that's no longer relevant.  They don't have any right to live in the house anymore.

    And being old and disabled doesn't give you the right to live somewhere rent-free against the owner's will.  These guys have had lots and lots of time to find other housing.

    And yes, they are tenants.  Just the fact they have been living in the house, makes them tenants.  So, they have tenant rights and must be evicted using landlord-tenant law.  They're holdover tenants, or tenants at sufferance, I think it's called.  

    But, tenants don't get to live rent-free.

    I just think the easiest and cheapest thing to do, would be to file for eviction.  Then, worst case scenario, you get some nearly-free advice from the judge (just your filing costs).  And maybe the judge will just order them to get out.  And you'll see if they show up with a lawyer, or legal services, and learn what their arguments would be - for just the cost of your court filing.

    At any rate, that's my opinion and that's what I would do.  

    6Reply
  • Merry Briotta
    Investor · Lebanon, OH · Member since 2015 · 80 posts · 26 votes
    10y
    Sue Kelly Very well said! That's exactly what I would do. I would call their bluff and file, immediately.
    0Reply
  • Nathan GesnerBusiness Member
    Moderator
    Real Estate Broker · Cody, WY · Member since 2010 · 28k+ posts · 41k+ votes
    10y

    I believe auctioneers have to be licensed to sell real estatestate and are required to provide certain disclosures. Most auctions have a period of time for viewing the property. I'm surprised to hear otherwise.

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  • Ewan Tong
    OP
    Real Estate Investor · Cambridge, MA · Member since 2015 · 26 posts · 5 votes
    10y

    @Nathan Gesner, all the auction sales I attended in Massachusetts are sold "AS IS". No viewing was allowed prior to the closing. 

    Lesson well learned. No more auction in the future !

    0Reply
  • Matthew Paul
    Severna Park, MD · Member since 2013 · 7k+ posts · 7k+ votes
    10y

    Judges arent supposed to use sympothy , they need to follow the law .  Listen to the above advice

    0Reply
  • Aramis Jordan
    Fitchburg, MA · Member since 2014 · 10 posts · 2 votes
    10y

    get a housing attorney

    0Reply
  • Sebastian Osorio
    Real Estate Agent · Weston, FL · Member since 2016 · 6 posts · 4 votes
    10y

    First of all I am not aware of the process in MA, I have done several eviction in south florida. I would look for option of retirement homes for someone with a handicap. The reason for this is if your case goes to court you have proof that you are not just throwing them to the street but actually have tried to find them a place to live. If they know that you won't evict them and they won't pay anything, then why would they look to a retirement home with the little income they have.  Good luck!!

    0Reply
  • Jonathan David
    Attorney · Portage, MI · Member since 2016 · 38 posts · 16 votes
    10y
    Is the title clear? Shouldn't the tenants have raised a fraud defense to the foreclosure proceedings, and if they failed to do so, or if they lost those arguments, did they waive those positions or are they settled? There is a statute of limitations on fraud that varies by state. You may have to file a fraud claim of your own against the bank for selling you a house they did not really own. There are numerous layers of complexity here
    1Reply
  • Marty V.
    Contractor · Cambridge, MA · Member since 2015 · 5 posts · 2 votes
    10y

    I would definitely get an attorney. I have a couple of name I can give you. One is in Cambridge

    0Reply
  • Taylor JohnsonPro Member
    Real Estate Agent · Cambridge, MA · Member since 2016 · 58 posts · 6 votes
    10y
    No matter what get the property insurance... if you own it, insure it. If the former owners have been there forever and don't seem motivated and you go through eviction process they might destroy your investment. Make sure you cover your asset!
    0Reply
  • Phil Z.
    Real Estate Broker · Orange, CT · Member since 2013 · 951 posts · 218 votes
    10y

    JD is right.  You need to get the eviction going as soon as possible.  Let the judge give them a 6 month stay which may even require some form of rent.  Eventually the court should allow the eviction when/if they show no cooperation..

    1Reply
  • Ewan Tong
    OP
    Real Estate Investor · Cambridge, MA · Member since 2015 · 26 posts · 5 votes
    10y

    @Jonathan David My closing lawyer told me that the title is clear and I got title insurance. The couple is still suing the bank for money, but they have so far not challenged the title. Their lawyer told me the litigation has been going on for five years. I am not sure if they have settled on this. 

    If the title is clear, am I entitled to filing a fraud claim against the bank? 

    0Reply
  • Nick Sabat
    Investor / Borrower / Contractor · Pittsburgh, PA · Member since 2016 · 60 posts · 29 votes
    10y

    There are a lot of things that were not said here - how long were these tenants in there? At any point were they granted a life estate? Was the auction a Bank/Sheriff's Auction? Who got the Auction proceeds? How much money did this couple put down? Who and how much were they paying?

    Again, just too much more to ask! Being that it is a two family you at least have the one half to rent out while dealing with the elderly couple. Next, did anyone say you could not charge them rent? I think it may be best, to offer them a lease via registered mail with option to stay and pay or get out. After they refuse, which they probably will, however many days your state law requires prior to eviction you have to give them a Notice to Vacate.

    Once that time expires, you can go to court and evict. These two seem to be playing the I'm old and disabled so I do not have to - routine. Not saying that a squire/magistrate will allow you to evict them, but this is probably your best route. When and if you send a Notice To Vacate - it will probably have to be sent registered mail also. My guess is, they will refuse to take either document from the mailman.

    On the Notice to Vacate - sent via mail - make copies - place them on both doors where they can be easily found. Take pictures of them, one up close and one from further back so you can clearly see that it was posted on the dwelling.

    Now, if you noticed, they have a lawsuit pending with the bank - I would certainly talk to an attorney, to see where you can be added as a party to that lawsuit, to recover damages yourself to compensate you for the elderly couples stay in your property and now your own legal problems, with it. In other words, you have a vested interest in the outcome of that lawsuit - you may be able to recover the arrears.

    Now about your other stuff - do not be willing to let anyone stay for free - they will take advantage of that and it may kick in a life-estate! Again, do not let anyone stay for free!

    Yes you are in a landlord tenant agreement by proxy.

    If you do seek homeowners you need to tell them of your situation and find out from them what they want done or what they will cover in this case.

    The best course of action in my opinion was outlined for you above.

    So here it is - this is not legal advice. This is merely stated here to give ideas through suggestion. Nothing here is considered fact, nor correct. You may take these ideas and use them at your own risk. Nothing is offered to cause harm to anyone, but may be useful in your situation. Good Luck!

    1Reply
  • Ayodeji Kuponiyi
    Investor · King of Prussia, PA · Member since 2014 · 1k+ posts · 339 votes
    10y

    @Ewan Tong I think the lessons we can all take from your situation is to research tenant occupied properties prior to closing. You could start the eviction process and/or you can get a second opinion from another real estate lawyer about your predicament. Since the property is yours, insurance is necessary to reduce possible future risks. Your best move may be to talk to a lawyer or 2, maybe 3 for free consultation and put what you do with regards to the couple in writing, Best of luck and keep us updated.

    1Reply
  • Nick Sabat
    Investor / Borrower / Contractor · Pittsburgh, PA · Member since 2016 · 60 posts · 29 votes
    10y

    My employee just showed up and I started talking about this thread - then I remember an old dear friend of mine, who was in a similar situation here.

    Ron - used to build custom bikes, he was one of the first in this country to do so. People from all over the world would come and get a bike from him. He owned an apartment house and in the basement was his shop. As he aged, he became unable to deal with his businesses. Building bikes and renting out apartments. I believe six in all.

    So his brother stepped in and forced Ron to sell. Somehow, they got caught up in a mortgage scam - via a guy named Leon. Factored in as part of the sale price was a life estate for Ron - no one expected this man to live much longer.

    He's still with us, but he is not in that apartment house no more. They managed to evict him, somehow. He is one of the sweetest and polite guys you could ever meet. While not fully there mentally anymore - he is still savvy.  The way they evicted him was I believe is due to the scam he was caught up in with the mortgage. Once auctioned, I believe the life estate ended. So there went Ron.

    But, his story is still cool - this is one man I can tell you can make garbage smell clean. He rents about a third of this building in an industrial area for $250/month. I can not get a clean picture of the building itself but I can show a picture of the floor plan.

    I tell this story for a couple reasons, one, there is hope of getting these tenants out and don't feel sorry for them - they probably know more than you ever could. Now again, note this man rents this entire floor out for $250/month. Go figure! 

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  • Michael Noto
    Real Estate Agent · Southington, CT · Member since 2008 · 5k+ posts · 3k+ votes
    10y

    Start the eviction process and see how the couple reacts.  Hopefully you can negotiate a cash for keys type deal and it never gets to where you have to actually go to court. 

    0Reply
  • Nick Sabat
    Investor / Borrower / Contractor · Pittsburgh, PA · Member since 2016 · 60 posts · 29 votes
    10y

    @Nathan Gesner I agree with you wholeheartedly - I would also question Real Estate Disclosure Laws - what should have been disclosed?

    I can not understand, as I read, that no attorney would touch this - seems to me that there is a whole lot of money to be made here.

    I mean this is just my opinion - that someone somewhere knew about those two old folk and their current position. The question is - who knew or should have known? Who should of been informed?

    Those are my questions I would be asking! Based upon the Reasonable Man Theory - what a reasonable man would do under the circumstances?

    0Reply
  • Tarek Soliman
    Investor · Austin , TX · Member since 2015 · 37 posts · 5 votes
    10y

    Sorry to hear this story for you and them, this what i wold do in my humble knowledge.

    1- First and for most find a good attorney for the real legal way into the situation.

    2- I know very well that there are some kind elderly house belong to the government or even private who accept low income. My wife used to work with them. It could be anywhere in the state as far as you think, it doesn’t matter as long as you found available place reserved for them. Very important and supportive where you can use it when you go the court.

    2- Than as the other suggested instead of spend the money on attorney and court go buy them first (no threaten them but win win situation) negotiation art

    3- if they are not working with you, let your new good attorney talk to their attorney and still go back and talk to them for win win situation and let them it’s better for them to take the money and go.

    4- final chose is the long battle in the court.  

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