Residential and Commercial Landlord-Tenant Practice in Massachusetts

Table of Contents

Chapter 01 - Creating the Residential Tenancy
Catherine F. Downing, Esq.,
Downing Van Dyke LLC
Exhibit 1A - Rental Application
Exhibit 1B - Request for Prior Landlord Reference
Exhibit 1C - Licensee Agreement
Exhibit 1D - Tenancy-at-Will
Exhibit 1E - Standard Form Apartment Lease
Exhibit 1F - Rent and Security Deposit Receipt
Exhibit 1G - Apartment Condition Statement
Exhibit 1H - Security Deposit Return Form

Chapter 02 - Creating the Commercial Tenancy
Michael J. Moran, Esq.,
Exhibit 2A - Exclusive Leasing Agreement
Exhibit 2B - Lease
Exhibit 2C - Definition of Percentage Rent
Exhibit 2D - Definition of Breakpoint and Gross Sales; Payment of Percentage Rent and Landlord’s Audit Provisions
Exhibit 2E - Office Definition of Operating Costs
Exhibit 2F - Retail Definition of Operating Costs
Exhibit 2G - Operating Costs Exclusions
Exhibit 2H - Tax Definition
Exhibit 2I - Audit Provision
Exhibit 2J - Subordination, Nondisturbance, and Attornment Agreement

Chapter 03 - Reasonable Accommodation Issues in Housing
Deena Zakim, Esq.,
Greater Boston Legal Services
Exhibit 3A - Nonexhaustive List of Impermissible Questions for Prospective Tenants
Exhibit 3B - Sample Certification of Need for Reasonable Accommodation
Exhibit 3C - Notice of Right to Request a Reasonable Accommodation
Exhibit 3D - Sample Request for Accommodation

Chapter 04 - Discrimination Issues in Housing
Catherine F. Downing, Esq.,
Downing Van Dyke LLC
James H. Van Dyke, Esq.,
Downing Van Dyke LLC
Exhibit 4A - Resources
Exhibit 4B - Table of Antidiscrimination Statutes and Statutes of Limitations
Exhibit 4C - MCAD Complaint Form
Exhibit 4D - Sample Response by Respondent to MCAD Complaint
Exhibit 4E - HUD Complaint Form

Chapter 05 - Enforcement of the State Sanitary and Building Codes
Thomas J. Broom, Esq.,
Boston, City of/Law Department
Edward Coburn, Esq.,
Boston, City of/Inspectional Services Department
Neil R. Janulewicz, Jr., Esq.,
City of Boston Fire Department
Kevin P. O'Connor, Jr., Esq.,
Checklist 5.1 - Checklist for Housing Inspection Reports (G.L. c. 111, § 127B)
Checklist 5.2 - Housing Complaint Screening Checklist
Exhibit 5A - Attorney General v. Gilardi, Western Housing Court Docket No. 17-CV-0088
Exhibit 5B - City of Boston Code Provision CBC 9-1.3 (Inspection and Re-Inspection of Rental Units)
Exhibit 5C - City of Boston Ordinance Regulating the Maintenance of Vacant, Foreclosing Residential Properties
Exhibit 5D - City of Boston Code Provision CBC 9-14 (Short-Term Residential Rentals)

Chapter 06 - Lead Paint: Complying with Massachusetts Law
Mark F. Itzkowitz, Esq.,
Exhibit 6A - Tenant Lead Law Notification
Exhibit 6B - Low-Risk Deleading Work by Homeowners and Their Agents: A Step-by-Step Guide
Exhibit 6C - Sample Complaint in Lead Paint Liability Action
Exhibit 6D - Sample Request for Production of Documents in Lead Paint Liability Action
Exhibit 6E - Sample Set of Interrogatories in Lead Paint Liability Action
Exhibit 6F - Sample Jury Instructions in Lead Paint Liability Action

Chapter 07 - Tort Actions Based on the Warranty of Habitability
Jeffrey C. Melick, Esq.,
Kajko, Weisman & Colasanti LLP
Exhibit 7A - Plaintiff’s Interrogatories to the Defendant
Exhibit 7B - Defendant’s Interrogatories to the Plaintiff
Exhibit 7C - Plaintiff’s Requests for Production of Documents and Other Items
Exhibit 7D - Defendant’s Requests for Production of Documents and Other Items
Exhibit 7E - Jury Instructions

Chapter 08 - Tort Issues in Residential and Commercial Tenancies
Mark F. Itzkowitz, Esq.,
Exhibit 8A - Complaint and Jury Trial Demand (Negligent Maintenance)
Exhibit 8AA - Sample Jury Instructions on Damages (Plaintiff’s Perspective)
Exhibit 8B - Complaint and Jury Trial Demand with Chapter 93A Claim (Negligent Maintenance)
Exhibit 8BB - Sample Jury Instructions on Compensatory Damages (Plaintiff’s Perspective)
Exhibit 8C - Complaint and Jury Trial Demand (Negligent Security)
Exhibit 8CC - Sample Jury Instructions on Comparative Negligence (Plaintiff’s Perspective)
Exhibit 8D - Plaintiff’s First Set of Interrogatories to Defendant (Trip and Fall)
Exhibit 8DD - Sample Jury Instructions on Evidence Properly Considered (Plaintiff’s Perspective)
Exhibit 8E - Plaintiff’s First Set of Interrogatories to Defendant (Negligent Security)
Exhibit 8EE - Sample Jury Instructions on Workers’ Compensation Lien (Plaintiff’s Perspective)
Exhibit 8F - Plaintiff’s First Request for Production of Documents to Defendant (Trip and Fall)
Exhibit 8G - Plaintiff’s First Request for Production of Documents to Defendant (Negligent Security)
Exhibit 8H - Plaintiff’s Request for Jury Instructions
Exhibit 8I - Sample Jury Instructions on the Nature of a Civil Action (Plaintiff’s Perspective)
Exhibit 8J - Sample Jury Instructions on Burden of Proof (Plaintiff’s Perspective)
Exhibit 8K - Sample Jury Instructions on Preponderance of the Evidence (Plaintiff’s Perspective)
Exhibit 8L - Sample Jury Instructions on Negligence (Plaintiff’s Perspective)
Exhibit 8M - Sample Jury Instructions on Duty of a Property Owner (Plaintiff’s Perspective)
Exhibit 8N - Sample Jury Instructions on Duty (Plaintiff’s Perspective)
Exhibit 8O - Sample Jury Instructions on Owner’s Duty of Care (Plaintiff’s Perspective)
Exhibit 8P - Sample Jury Instructions on Owner’s Non-Delegateable Duty of Care (Plaintiff’s Perspective)
Exhibit 8Q - Sample Jury Instructions on Duty of Care (Plaintiff’s Perspective)
Exhibit 8R - Sample Jury Instructions on Duty: Foreseeability (Plaintiff’s Perspective)
Exhibit 8S - Sample Jury Instructions on Evidence of Control (Plaintiff’s Perspective)
Exhibit 8T - Sample Jury Instructions on Evidence of Negligence (Plaintiff’s Perspective)
Exhibit 8U - Sample Jury Instructions on Evidence: Handrail Regulations (Plaintiff’s Perspective)
Exhibit 8V - Sample Jury Instructions on Standard of Care (Plaintiff’s Perspective)
Exhibit 8W - Sample Jury Instructions on Causation Without Use of Substantial Contributing Factor Language (Plaintiff’s Perspective)
Exhibit 8X - Sample Jury Instructions on Exact Cause of Injury (Plaintiff’s Perspective)
Exhibit 8Y - Sample Jury Instructions on Superseding Intervening Cause (Plaintiff’s Perspective)
Exhibit 8Z - Sample Jury Instructions on Causation (Plaintiff’s Perspective)

Chapter 09 - Landlord Applications for Injunctive Relief
Catherine F. Downing, Esq.,
Downing Van Dyke LLC
Exhibit 9A - Sample Verified Complaint (Criminal Activity)
Exhibit 9B - Sample Order (Criminal Activity)
Exhibit 9C - Sample Verified Complaint (Property Damage)
Exhibit 9D - Sample Order (Property Damage)
Exhibit 9E - Sample Verified Complaint (Trespassing)
Exhibit 9F - Sample Verified Complaint (Trespassing - Alternative)
Exhibit 9G - Sample Order (Trespassing)
Exhibit 9H - Sample Notice of Trespass
Exhibit 9I - Sample Verified Complaint (Refusal to Allow Access)

Chapter 10 - Probate and Family Law Issues in Housing
Hon. Alexander Mitchell-Munevar,
Central Division, Housing Court, Commonwealth of Massachusetts

Chapter 11 - Termination of Residential Tenancies
Catherine F. Downing, Esq.,
Downing Van Dyke LLC
James M. McCreight, Esq.,
Greater Boston Legal Services
Checklist 11.1 - Checklist for Notice Required from Storage Facility Holding Evicted Defendant’s Possessions
Exhibit 11A - Housing Court Standing Orders Nos. 1-23 and 6-20
Exhibit 11B - Notice to Quit Terminating Tenancy-at-Will
Exhibit 11C - Notice to Quit Tenancy-at-Will with Offer of New Tenancy
Exhibit 11D - Notice to Quit for Lease Violation
Exhibit 11E - Rental Period Notice to Quit
Exhibit 11F - Use and Occupancy Letter
Exhibit 11G - Notice to Quit for Nonpayment of Rent
Exhibit 11H - Housing Court Standing Order No. 1-20
Exhibit 11I - Summary Process Summons and Complaint
Exhibit 11J - Housing Court Standing Order No. 1-01
Exhibit 11K - Plaintiff’s Sample Motion for Payment of Use and Occupancy and Supporting Affidavit
Exhibit 11L - MLRI Discovery Booklet
Exhibit 11M - Plaintiff’s Sample Responses to Discovery Requests and Memorandum in Opposition to Defendant’s Motion to Compel

Chapter 12 - Termination of Commercial Tenancies
Randolph C. English, Esq.,
Frank A. Flynn, Esq.,
Flynn Law Group
Exhibit 12A - Notice of Default for Nonpayment of Rent
Exhibit 12B - Notice to Quit/Notice of Termination of Commercial Lease
Exhibit 12C - Summary Process Summons and Complaint
Exhibit 12D - Plaintiff’s Motion to Strike
Exhibit 12E - Defendant’s Motion to Dismiss

Chapter 13 - Appeals and Bonds
Michael J. Louis, Esq.,
Downing Van Dyke LLC
Angela Marcolina, Esq.,
Boston Housing Authority

Chapter 14 - Special Types of Tenancies
Harvey J. Chopp, Esq.,
Randolph C. English, Esq.,
Frank A. Flynn, Esq.,
Flynn Law Group
James M. McCreight, Esq.,
Greater Boston Legal Services
Stephen A. Wasserman, Esq.,
Checklist 14.1 - Checklist of Permissible Reasons for Terminating a Manufactured Housing Tenancy
Exhibit 14A - Notice to Terminate a Manufactured Housing Tenancy

Chapter 15 - Postforeclosure Evictions
Hon. Benjamin O. Adeyinka,
Northeast Housing Court, Commonwealth of Massachusetts
James F. Creed, Jr., Esq.,
CREEDLAW LLC
Charles Joseph Sweeney, Esq.,
Northeast Housing Court, Commonwealth of Massachusetts
Exhibit 15A - Opinion Letter Concerning Referendum on 2015 Mass. Acts c. 141
Exhibit 15B - Letter to Petitioners Regarding Referendum on 2015 Mass. Acts c. 141
Exhibit 15C - Attorney General’s Letter Dated December 13, 2010
Exhibit 15D - Attestation Form to Accompany Residential Notice to Quit
Exhibit 15E - Sample Motion for the Posting of Use and Occupancy Payments
Exhibit 15F - Sample Form to File Impounded Materials
Exhibit 15G - Motion to Amend Complaint and Judgment to Include Additional Names of the Defendant Occupants
Exhibit 15H - Request for Information
Exhibit 15I - Occupant Notice to Vacate
Exhibit 15J - Tenant Notice to Vacate
Exhibit 15K - Mortgagor Notice
Exhibit 15L - Summary Process Summons and Complaint
Exhibit 15M - Summary Process Answer and Counterclaims
Exhibit 15N - Defendant’s Interrogatories, Request for Admissions, and Request for Production of Documents
Exhibit 15O - Agreement for Judgment
Exhibit 15P - Foreclosure Deed and Affidavit
Exhibit 15Q - Complaint for Writ of Entry

Chapter 16 - Residential and Nonresidential Real Property Leases in Bankruptcy
Victor G. Milione, Esq.,
Nixon Peabody LLP

Chapter 17 - Collection Practice in Residential and Commercial Tenancies
Scott D. Carman, Esq.,
Krems, Jackowitz & Carman, LLP
Kenneth A. Krems, Esq.,
Krems, Jackowitz & Carman, LLP
Exhibit 17A - Sample Statement of Small Claim and Notice of Trial Form
Exhibit 17B - Verification of Defendant’s Address
Exhibit 17C - Sample Letter to Debtor Postsuit
Exhibit 17D - Agreement for Judgment and for Payment Order
Exhibit 17E - Sample Complaint to Reach and Apply Rents in Satisfaction of Judgment Against Landlord
Exhibit 17F - Application for Supplementary Process
Exhibit 17G - Sample Order Referring Case for Mediation

Chapter 18 - Tenant Civil Actions for Damages and Other Relief
Eric T. Thulin, Esq.,
Davagian, Grillo & Semple LLP
Checklist 18.1 - Checklist of Requirements Relating to Tenants’ Water Service
Checklist 18.2 - Checklist of Actions Requiring Return of the Security Deposit
Exhibit 18A - Housing Code Checklist
Exhibit 18B - Rent Withholding Letter
Exhibit 18C - Repair and Deduct Letter
Appendixes - Appendixes
Hon. Sergio E. Carvajal,
Housing Court, Central Division
Hon. Robert G. Fields,
Western Housing Court, Commonwealth of Massachusetts
Hon. David D. Kerman,
Hon. Timothy F. Sullivan,
Housing Court, Commonwealth of Massachusetts
Charles Joseph Sweeney, Esq.,
Northeast Housing Court, Commonwealth of Massachusetts
Appendix A - Practice in the Housing Court
Appendix B - Bench Memorandum for Residential Summary Process Cases
Appendix C - Pattern Jury Instructions in Landlord-Tenant Cases

Authors

Editor(s)

Catherine F. Downing, Esq.,
Downing Van Dyke LLC, Natick
Judicial Commentator(s)

Hon. Timothy F. Sullivan,

Housing Court, Commonwealth of Massachusetts,
Ethical Commentator(s)

Jeffrey D. Woolf, Esq.,
Office of the General Counsel, Massachusetts Board of Bar Overseers, Boston

Author(s)

Hon. Benjamin O. Adeyinka,
Northeast Housing Court, Commonwealth of Massachusetts, Lawrence

Thomas J. Broom, Esq.,
Boston, City of/Law Department, Boston

Scott D. Carman, Esq.,
Krems, Jackowitz & Carman, LLP, Boston

Hon. Sergio E. Carvajal,
Central Division, Housing Court, Commonwealth of Massachusetts, Worcester

Harvey J. Chopp, Esq.,

Edward Coburn, Esq.,
Boston, City of/Inspectional Services Department, Boston

James F. Creed, Jr., Esq.,
CREEDLAW LLC, Marshfield

Catherine F. Downing, Esq.,
Downing Van Dyke LLC, Natick

Randolph C. English, Esq.,
Cambridge

Hon. Robert G. Fields,
Western Housing Court, Commonwealth of Massachusetts, Salem

Frank A. Flynn, Esq.,
Flynn Law Group, Boston

Mark F. Itzkowitz, Esq.,
Boston

Neil R. Janulewicz, Jr., Esq.,
City of Boston Fire Department, Boston

Hon. David D. Kerman,

Kenneth A. Krems, Esq.,
Krems, Jackowitz & Carman, LLP, Boston

Michael J. Louis, Esq.,
Downing Van Dyke LLC, Natick

Angela Marcolina, Esq.,
Boston Housing Authority, Boston

James M. McCreight, Esq.,
Greater Boston Legal Services, Boston

Jeffrey C. Melick, Esq.,
Kajko, Weisman & Colasanti LLP, Lexington

Victor G. Milione, Esq.,
Nixon Peabody LLP, Boston

Hon. Alexander Mitchell-Munevar,
Central Division, Housing Court, Commonwealth of Massachusetts, Boston

Michael J. Moran, Esq.,

Kevin P. O'Connor, Jr., Esq.,

Charles Joseph Sweeney, Esq.,
Northeast Housing Court, Commonwealth of Massachusetts, Salem

Eric T. Thulin, Esq.,
Davagian, Grillo & Semple LLP, Sudbury

James H. Van Dyke, Esq.,
Downing Van Dyke LLC, Natick

Stephen A. Wasserman, Esq.,
Salem

Deena Zakim, Esq.,
Greater Boston Legal Services, Boston