Can Landlords Still Collect Security Deposits in Massachusetts After Taylor V Beaudry?
Can Landlords Still Collect Security Deposits in Massachusetts after Taylor v Beaudry?
There were a couple of disturbing things that happened during July 2012
First, the Legislature ignored again for another year our pleas to pass mandatory rent escrow to make retaliation against landlords (otherwise known as €the free rent trick€) illegal in MA. Their session came to an end on 7-31-12. They also ignored ALL of our other requests like shortening the Notice to Quit for Non-Payment of Rent from 14 to 3 days like it is even in CA and the Late Fee from 30 to 10 days like it is in most normal states. In short, another year down the drain! Where are the activists landlords to raise some hell?
Second, The Appellate Court in Taylor v Beaudry (Taylor II) hinted that €cleaning€ may not be deducted from a Security Deposit. (here is the actual quote: €the deductions for cleaning costs incurred as a result of a breach of the lease may not be permitted by the statute which, as relevant here, provides that €no deduction may be made from the security deposit for any purpose other than€ €a reasonable amount necessary to repair any damage caused to the dwelling unit by the tenant or any person under the tenant's control or on the premises with the tenant's consent, reasonable wear and tear excluded). They should not be making off-hand comments like that! €Cleaning€ is something that should be evaluated by the fact-finder to see whether it rises to the level of €damages€ deductible from the Security Deposit or just wear and tear not deductible from the Security Deposit. It seems to me these two out of three judges (one of them sharply dissented with the majority opinion) have never cleaned someone else's toilet or a bathtub not cleaned by the tenant in 3 years or a fridge infested with maggots because the tenant left the apartment with food in the fridge and with no electricity. In many cases cleaning at least in part can and should be deducted from the Security Deposit and the fact we deduct plus minus $10 should not be a reason to triple the WHOLE security deposit. Refrigerator Infested with Maggots. Sometimes damages cannot be estimated 100% accurately and different people can disagree honestly about the amounts. Small differences like that should not be used to triple the whole security deposit like Taylor v Beaudry is encouraging housing court judges to do.
In 2009 this same case in a slightly different incarnation was in front of the Appellate Court again and I thought then that they made an error of law by declaring that ANY violation of G.L. c. 186, § 15B(4)(iii) will result in the tripling of the whole security deposit. I published a letter which can be read at MassachusettsLandlords.com that I had written to the Appellate Court asking them to correct that error because G.L. c. 186, § 15B(4)(iii) should only result in tripling the whole security deposit when the landlord does not return whatever portion he has to return within 30 days. It only applies to the 30-day rule. Duh! The Legislature did not intend the Security Deposit to be tripled for not having it signed under the pains and penalties of perjury, for example.
This year the case was brought to them again by this vindictive (according to the dissenting judge) tenant who represented himself and apparently swept these judges off their feet with his fluency of the Security Deposit Law in this case and in a prior case where he had sued another landlord over €security deposit violations.€
Instead of reaching a more moderate interpretation of the G.L. c. 186, § 15B(4)(iii) more consistent with the intent of the Legislature they fell for the most anti-landlord interpretation of it and refused to acknowledge it as a error of law as I was urging them to do 3 years ago. This time the dissenting judge (Judge J. Brown) confirmed my fear that I was right back then. Here are some quotes from what he or she had to say:
€It is hardly credible that the Legislature intended, by passage of the Security Deposit Act (Act), to foster a cottage industry for tenants to churn a per se but nonetheless harmless infraction into a treble damages windfall; such a result advances no remedial or deterrent policy€¦
On the record before us, the damages award for the tenant constitutes an error of law. I believe that to allow the damages judgment to stand, despite the absence of a cross appeal, would amount to a miscarriage of justice. I am not prepared to ignore our role as an appellate tribunal to correct, where necessary, an entirely erroneous judgment that so unfairly punishes a party as to cause justice to miscarry€¦.
The tenant failed to move out and surrender possession of the leased premises on August 31, 2007, as he was obliged to do. As of September 1, the tenant had not removed his belongings from the premises. His vehicle remained parked in close vicinity to the building. The tenant did not return the keys to the landlord. The judge found there was €no evidence of the tenant ever having requested the return of his security deposit in August 2007 or September 2007 as he might have done simultaneously with the removal of all of his belongings and the return of his house keys.€ Nor did he leave the premises in good condition, exclusive of ordinary wear and tear€¦.
Tenants may bring an action to enforce the Act's provisions, but recovery nonetheless hinges on the customary showing that a violation caused the tenant to suffer an injury or loss of money. The instant facts foreclose a claim by the tenant to recover damages under the Act€¦
The tenant argues he vacated the premises by August 31, 2007, when his tenancy terminated pursuant to the lease. His evidentiary showing left the judge unconvinced, and he found that the tenant had held over and ended his occupancy no sooner than September 1. The tenant claims this was error. He had the burden of proving when in fact he surrendered possession€¦He has not shown that the judge's finding was clearly erroneous€¦
The record before us does not contain a transcript of the evidentiary hearing. €Without a record of the testimony or representations at the hearing, we have no basis for concluding that the evidence did not support the judge's finding as to when the tenant had relinquished possession of the premises€¦ and, thus, no reasonable basis exists for us to review, much less disturb, the judge's findings€¦
A residential landlord's failure to comply with the specific documentary and accounting requirements, mandated by § 15B(4)(iii) and (6)(b ), does not, in and of itself, constitute an act on which treble damages may be based under § 15B(7)€¦ Admittedly, the landlord violated the Act by providing the tenant with an unsworn-to list of the damage to the premises, rather than one that was attested-to and signed under the penalties of perjury€¦.
The defective list did not render the tenant any worse off than if the landlord had satisfied the Act's documentary requirements for disclosure of waste at the end of the occupancy€¦ The tenant was made whole; he was not forced to resort to legal process to correct wrongdoing nor was he denied his legal rights. Nonetheless, he chose to pursue an action, not only for relief in the form of treble damages, but also court costs and other fees. This was folly, for it has never been shown he suffered an €injury€ or €loss of money€ consistent with any accepted understanding of those terms as defined by the Supreme Judicial Court and this court€¦ The judgment should be vacated, and the case remanded for entry of a judgment dismissing the complaint. I would not award costs to either of the parties.€
And here are some comments from the Dissenting Judge Notes: € The tenant's conversant knowledge of the Act was evident in his successful pro se prosecution of a prior appeal in Taylor v. Burke, 69 Mass.App.Ct. 77 (2007), involving the intricacies of the Act's custodial requirements for a security deposit. Th
There were a couple of disturbing things that happened during July 2012
First, the Legislature ignored again for another year our pleas to pass mandatory rent escrow to make retaliation against landlords (otherwise known as €the free rent trick€) illegal in MA. Their session came to an end on 7-31-12. They also ignored ALL of our other requests like shortening the Notice to Quit for Non-Payment of Rent from 14 to 3 days like it is even in CA and the Late Fee from 30 to 10 days like it is in most normal states. In short, another year down the drain! Where are the activists landlords to raise some hell?
Second, The Appellate Court in Taylor v Beaudry (Taylor II) hinted that €cleaning€ may not be deducted from a Security Deposit. (here is the actual quote: €the deductions for cleaning costs incurred as a result of a breach of the lease may not be permitted by the statute which, as relevant here, provides that €no deduction may be made from the security deposit for any purpose other than€ €a reasonable amount necessary to repair any damage caused to the dwelling unit by the tenant or any person under the tenant's control or on the premises with the tenant's consent, reasonable wear and tear excluded). They should not be making off-hand comments like that! €Cleaning€ is something that should be evaluated by the fact-finder to see whether it rises to the level of €damages€ deductible from the Security Deposit or just wear and tear not deductible from the Security Deposit. It seems to me these two out of three judges (one of them sharply dissented with the majority opinion) have never cleaned someone else's toilet or a bathtub not cleaned by the tenant in 3 years or a fridge infested with maggots because the tenant left the apartment with food in the fridge and with no electricity. In many cases cleaning at least in part can and should be deducted from the Security Deposit and the fact we deduct plus minus $10 should not be a reason to triple the WHOLE security deposit. Refrigerator Infested with Maggots. Sometimes damages cannot be estimated 100% accurately and different people can disagree honestly about the amounts. Small differences like that should not be used to triple the whole security deposit like Taylor v Beaudry is encouraging housing court judges to do.
In 2009 this same case in a slightly different incarnation was in front of the Appellate Court again and I thought then that they made an error of law by declaring that ANY violation of G.L. c. 186, § 15B(4)(iii) will result in the tripling of the whole security deposit. I published a letter which can be read at MassachusettsLandlords.com that I had written to the Appellate Court asking them to correct that error because G.L. c. 186, § 15B(4)(iii) should only result in tripling the whole security deposit when the landlord does not return whatever portion he has to return within 30 days. It only applies to the 30-day rule. Duh! The Legislature did not intend the Security Deposit to be tripled for not having it signed under the pains and penalties of perjury, for example.
This year the case was brought to them again by this vindictive (according to the dissenting judge) tenant who represented himself and apparently swept these judges off their feet with his fluency of the Security Deposit Law in this case and in a prior case where he had sued another landlord over €security deposit violations.€
Instead of reaching a more moderate interpretation of the G.L. c. 186, § 15B(4)(iii) more consistent with the intent of the Legislature they fell for the most anti-landlord interpretation of it and refused to acknowledge it as a error of law as I was urging them to do 3 years ago. This time the dissenting judge (Judge J. Brown) confirmed my fear that I was right back then. Here are some quotes from what he or she had to say:
€It is hardly credible that the Legislature intended, by passage of the Security Deposit Act (Act), to foster a cottage industry for tenants to churn a per se but nonetheless harmless infraction into a treble damages windfall; such a result advances no remedial or deterrent policy€¦
On the record before us, the damages award for the tenant constitutes an error of law. I believe that to allow the damages judgment to stand, despite the absence of a cross appeal, would amount to a miscarriage of justice. I am not prepared to ignore our role as an appellate tribunal to correct, where necessary, an entirely erroneous judgment that so unfairly punishes a party as to cause justice to miscarry€¦.
The tenant failed to move out and surrender possession of the leased premises on August 31, 2007, as he was obliged to do. As of September 1, the tenant had not removed his belongings from the premises. His vehicle remained parked in close vicinity to the building. The tenant did not return the keys to the landlord. The judge found there was €no evidence of the tenant ever having requested the return of his security deposit in August 2007 or September 2007 as he might have done simultaneously with the removal of all of his belongings and the return of his house keys.€ Nor did he leave the premises in good condition, exclusive of ordinary wear and tear€¦.
Tenants may bring an action to enforce the Act's provisions, but recovery nonetheless hinges on the customary showing that a violation caused the tenant to suffer an injury or loss of money. The instant facts foreclose a claim by the tenant to recover damages under the Act€¦
The tenant argues he vacated the premises by August 31, 2007, when his tenancy terminated pursuant to the lease. His evidentiary showing left the judge unconvinced, and he found that the tenant had held over and ended his occupancy no sooner than September 1. The tenant claims this was error. He had the burden of proving when in fact he surrendered possession€¦He has not shown that the judge's finding was clearly erroneous€¦
The record before us does not contain a transcript of the evidentiary hearing. €Without a record of the testimony or representations at the hearing, we have no basis for concluding that the evidence did not support the judge's finding as to when the tenant had relinquished possession of the premises€¦ and, thus, no reasonable basis exists for us to review, much less disturb, the judge's findings€¦
A residential landlord's failure to comply with the specific documentary and accounting requirements, mandated by § 15B(4)(iii) and (6)(b ), does not, in and of itself, constitute an act on which treble damages may be based under § 15B(7)€¦ Admittedly, the landlord violated the Act by providing the tenant with an unsworn-to list of the damage to the premises, rather than one that was attested-to and signed under the penalties of perjury€¦.
The defective list did not render the tenant any worse off than if the landlord had satisfied the Act's documentary requirements for disclosure of waste at the end of the occupancy€¦ The tenant was made whole; he was not forced to resort to legal process to correct wrongdoing nor was he denied his legal rights. Nonetheless, he chose to pursue an action, not only for relief in the form of treble damages, but also court costs and other fees. This was folly, for it has never been shown he suffered an €injury€ or €loss of money€ consistent with any accepted understanding of those terms as defined by the Supreme Judicial Court and this court€¦ The judgment should be vacated, and the case remanded for entry of a judgment dismissing the complaint. I would not award costs to either of the parties.€
And here are some comments from the Dissenting Judge Notes: € The tenant's conversant knowledge of the Act was evident in his successful pro se prosecution of a prior appeal in Taylor v. Burke, 69 Mass.App.Ct. 77 (2007), involving the intricacies of the Act's custodial requirements for a security deposit. Th
