Exhausting All Your Remedies

So your landlord won’t return your security deposit, or fix the plumbing, or do something about all the rodents in your attic. Should you take them to court? 

A lawsuit shouldn’t be the first course of action for Massachusetts tenants angry at or frustrated with their landlords, says Boston attorney Jordana Greenman. But too often, that’s what she sees.

“I get three to five calls or emails per day from tenants, and in nine out of 10 instances the person has not even talked to their landlord about what their problem is,” says Greenman, who runs a solo practice. “Why are you filing lawsuits before you try to have a conversation with another human being?”

Approaching your landlord before taking legal action is also the course of action recommended by Adam Sherwin of The Sherwin Law Firm in Boston.

“You should always speak with the landlord first,” he says. “A lot of these matters can be worked out on their own. The court process is not real quick, and it can be expensive, emotional and draining for both sides.”

It’s also important to consider the strength of your case. Does the situation violate the lease terms or what’s acceptable under law or municipal code? Have you repeatedly put complaints or requests in writing? 

“There are situations where the landlord’s not maintaining the property, and they’ve been put on clear notice that there’s an issue and aren’t addressing it,” Sherwin says. “Or maybe they’re not returning your security deposit, and for some tenants, that’s big money. I’ve seen cases where the landlord is just playing games with the deposit.”

And if speaking with the landlord doesn’t get results? If the problem violates housing or health code, Greenman says, tenants should next take their complaints to local inspectors.

“Inspectors have the right to take landlords to court if they don’t maintain their property,” Greenman says. 

Tenants might fear retaliation for doing so—for example, that a landlord might evict them or raise their rent—but Massachusetts law prohibits such retaliation. 

“If you complain about an issue and the next week the landlord raises the rent, then the matter gets involved in a legal proceeding, the landlord would have to explain why they’re doing that,” Sherwin says. “Is there a reason other than that the tenant made the complaint?”

The most common types of cases Sherwin sees involve unhealthy apartment conditions or attempts to reclaim security deposits. Sometimes, he says, a lawyer can help if you and your landlord have reached a stalemate, in the same way a therapist or financial planner might mediate an impasse between dissenting couples.

“If you’re in a situation where you just need someone with an objective voice, that’s when an attorney can be very useful,” he says. “Maybe it’s not a complicated legal matter, but the parties haven’t been able to reach mutual agreement, so they need to hear it from someone else.” 

Once a tenant has exhausted these initial measures without success, it might be time to consider filing a lawsuit. “The law does provide penalties for a landlord that isn’t doing what they’re supposed to, and many have built-in attorney fees, where the courts can order the landlord to pay the fees for the other side,” Sherwin says.

Going to court, though, can be expensive and time-consuming. It also leaves a public footprint that could affect your reputation with future landlords.

“All court records are public records, so if someone searches for you, they will see that you’ve sued,” Sherwin says. “Landlords may look at that. I don’t think that should deter someone from suing, but they should be aware.”

Greenman cites as an example a local tenant she’s dealt with who’s been in housing court five times.

“Say you’re a landlord doing a background check,” she says. “How much would you care who won or lost any of those five cases? Or do you just say to yourself, ‘This guy’s been to housing court five times; I don’t want him as a tenant.’” 

For tenants who do opt to sue, Sherwin and Greenman say you might be able to handle the case yourself—especially if the dispute involves damages of $7,000 or less, which can be resolved in small claims court.

“The rules of evidence and procedure there are not as extensive and are meant to be much more expeditious,” Sherwin says, “and the court may treble the damages.”

In general, Massachusetts law favors tenants. That also means, Greenman says, that small-scale landlords—such as those who purchase a property and live onsite while renting out rooms to tenants—are subject to the same penalties as owners of multiple giant complexes with millions of dollars of investments behind them.

For that reason, she says, tenants should remember that the person on the other side of the table is also human.

“Don’t sue until you’ve exhausted all of your remedies, until you’ve actually tried to have a conversation,” she says. “Especially if you have a small landlord. My biggest fear is that we’re going to wake up one day and look outside and see nothing besides huge buildings with concierges. … Pushing for that is not helpful.”