Peter Mark Heintzelman, Esquire 37 Harvard Street Worcester, MA 01609 June 10, 1999 Re: Senate 541: Rent Escrowing An Open Letter to My State Senators and Representatives State House Boston, MA Dear Senators and Representatives: I'm in my fourteenth year of private practice in Worcester, concentrating in real estate law and landlord-tenant practice, primarily in the Worcester Housing Court. Although I do not address you in these capacities, I do chair the Housing Court Committee for the Worcester County Bar Association, and serve as speaker, author and chairperson for Mass. Continuing Legal Education (MCLE) for lawyers on topics including landlord-tenant practice. I represent landlords and tenants alike, including pro bono representation of indigent tenants. Today I had five eviction cases on in the Housing Court; I live and breath evictions. I have rarely taken the time to communicate to my governing legislators, but feel compelled to get involved, to right a wrong, and seek to your support of Senate 541, the rent escrowing bill, and to urge its enactment. As you have heard, I'm sure; eviction laws are very "pro-tenant" in Massachusetts. Indeed preserving tenancies and housing for all our citizens is extremely important to the entire community. To keep housing affordable, in compliance with the sanitary code and other legal requirements, and to allow tenants and landlords alike to live peaceable, landlords have to be given incentive to invest in residential properties and be relatively secure in this investment. Successful landlording is important for the community. The rents collected by landlords are crucial to keep secure, in order that those funds can pay income and real estate taxes, utilities, maintenance and repair of residential premies. The current status of the law, from my chair, makes being a Massachusetts landlord, a risky investment. I have advised demoralized landlords, who have suffered property damages and lost rents at the hands of tenants, rarely ever recoverable, that the current status of the law provides them one of two remedies: sell their property, or seek the repeal or amendment of General Laws, Chapter 239, Section 8A. Senate 541 seeks to amend that statute, which got me involved to see its impact upon evictions, and landlord's ability to be secure in their investment. Any frank and forthright lawyer, who regularly practices in the Commonwealth's Housing Courts, where most residential evictions occur, either pro-landlord or pro-tenant, and those of us who play both sides, can summarize the impact of Chapter 239, Section 8A as it now stands: A tenant, in the face of eviction for nonpayment of rent, and usually as a knee jerk reaction to the eviction, calls the local sanitary code inspector/board of health inspector, to complain of conditions never complained of before, to use as ammunition in an eviction action. Evictions of this nature boil down to: "who's owed more money wins." A landlord whose tenants stops paying rent, on the pretext of "bad conditions", and who immediately serves the prerequisite 14 day notice to quit, followed by the summary process summons and complaint, and the procedurally-established trial date, which trial date is delayed further by discovery filed by tenants, can't get an eviction hearing date sooner than eight weeks after starting the process. Meanwhile, rents are not being paid. Then, assuming the landlord wins a trial judgment, twelve more days at minimun have to pass before the landlord can obtain an execution for possession, and hire a constable or sheriff to move a resistant tenant out, placing their property in storage, or course at the landlord's expense. Landlords rarely ever recover those lost rents, property damages, legal fees, filing fees, service fees, moving and storage fees. You can see why I'm known to say: "I give lots of landlords advice, but not necessarily to become one!" Its a tough investment; tenants can screw the landlord out of months of rent money, and pull the strings of the current legal system, which isn't good for the community: landlords need to be secure in their investment, knowing that rent monies will be used for their intended purpose, or the Commonwealth's housing stock suffers. Senate 541, unlike many of its annual predecessor bills attempting to repeal or amend General Laws, Chapter 239, section 8A, seems to make a lot of sense. It levels the playing field. While the current status of the law does not encourage tenants to communicate with landlords, Senate 541 encourages and mandates tenants to communicate condition problems to the landlord before "withholding" rents. If a landlord then does not timely address repair concerns, the tenant need not pay the next rent due, but may escrow those rents in a bank. Those escrowed funds are secure, for landlord and tenant alike, until the parties reach an agreement as to the monies' disbursement, or the court, after hearing, determines how the monies should be disbursed. By this mechanism, tenants are secure in knowing the court will award them recovery of those escrowed funds if the circumstances warrant, and landlords are protected in knowing that, if the court so determines, the monies may be disbursed to the landlord, for repairs and operating costs; injecting that money back into properties, to keep our housing stock in better shape, and increase the tax base of our communities. Senate 541, then, gives landlords incentives: to do repairs timely as they become aware of conditions communicated to them by tenants; to settle disputes out of court, and if settlment is impossible, to know the monies are secure, and subject to the court's disposition. Senate 541 does not take away tenants rights. Tenants can still assert counterclaims and be awarded monetary damages. Tenants rights are not abolished, they are actually preserved. The escrowed funds, can be applied to rent arrears, allowing the tenant to remain in possession, if the court warrants such a finding ,based upon the circumstances of each case, and the application of General Laws, Chapter 239, Section 8A, as amended by Senate 541. Its time to amend the current status of eviction laws, to level the playing field, to make being a landlord an attractive investment. Its in the Commonwealth's best interest to make being a landlord an attractive investment. Making rent collection more secure will benefit the Commonwealth as a whole. I urge your support of Senate 541, and thank you for your time. Very truly yours, Peter M. Heintzelman, Esq. |
