February 2008

One serious problem with our state’s rent withholding law is that it causes fierce, vicious fights between landlords and their tenants. On top of that, since the law stops the eviction process, it often forces these fighting landlords and tenants to live in close proximity to each other. That can escalate the fighting further. That is a recipe for disaster, as we shall see.

Landlord Arthur Wallace, 79 years old, lives in Natick, but decided this past January that he had to sleep at his Marlborough rental property. He was afraid that one tenant he was evicting might cause damage or even set the house afire. Wallace used the spare bedroom off the kitchen.

It was 10 o’clock in the evening on January 27. In the darkened bedroom, Wallace was attacked by Ed Ablazey, none other than the tenant Wallace worried about. Ablazey wielded a frying pan and hit Wallace on the head and shoulders numerous times. Wallace fell to the floor. Ablazey demanded to have the keys to Wallace’s brand-new camper-van. Ablazey wanted to steal Wallace’s van in order to fetch illegal drugs.

Wallace said the keys were on the floor. But when Ablazey could not find them in the dark, he proceeded to beat Wallace’s face with both fists and choke Wallace around the neck.

Wallace felt at the time that he was going to die then and there.

Another tenant in the building heard the noise from the struggle and ran into the kitchen. Ablazey then turned and attacked the entering tenant, who fled and called the police. When the police arrived, they found Wallace breathing heavily and wearing blood-stained clothing. He was taken to a Worcester hospital and received stitches for numerous lacerations around his head and shoulders.

Ablazey was arrested and pleaded not guilty to various charges in Marlborough District Court. He was being held under a dangerousness finding.

Runs two ‘sober houses’

For 20 years or longer, Wallace has operated the five-unit Marlborough property as a “sober house” for recovering alcoholics and substance abusers. His Natick home is a six-unit property that he also operates as a sober house. Wallace has a bachelor’s degree in psychology and was the school psychologist in Newton Public Schools for 17 years. Never before had the police come to either of his properties.

Wallace says most of his units have their own kitchen and bathroom and are ordinary studio apartments. This occupancy pattern means there should be no issue of his properties being unlicensed rooming houses. There might be technical zoning problems with them.

A year ago, the attacking tenant, Ablazey, had moved into one of two studio apartments on the third floor of the Marlborough property. For Ablazey’s studio, the rent was $125 a month, and from day one, there was no rent, not even a deposit from the tenant. In the spirit of running a sober house, however, Wallace overlooked Ablazey’s nonpayment, a big mistake given the difficulty of eviction.

Ablazey soon had a new neighbor in the adjacent third-floor studio when Fred Abelli, who was just out of prison, moved in. The two began to do illegal drugs together, as was later admitted in court. Neither one had a job. Both had criminal records. Abelli also soon stopped paying rent.

A fake fall

Lacking an escrow requirement, our state’s rent withholding law allows tenants to withhold rent they never intend to pay back. The law is flat-out wrong, and tenants know it. In their heart of hearts, they know it is wrong to steal rent from their landlords.

And the way they act shows it. To counteract their guilt, they must vilify their landlord, turn their landlord into “the bad guy,” which then gives them permission to abuse the landlord further in illegal ways. Wallace’s story shows how far it can go.

Last fall, Abelli (not the tenant who attacked Wallace) decided to counteract his nonpayment of rent. Hoping to sue Wallace for money, he faked a fall down the cellar stairs. He called 911 and the Marlborough fire department came to the property. Abelli was unharmed, according to the fire department. Abelli took himself to the hospital where again no injury was found.

A day or two later, Ablazey told Wallace that Abelli had asked him to testify that he saw Abelli fall down the stairs. Ablazey admitted that he saw nothing of the sort and did “not want any part of that.” The relationship between Ablazey and Abelli was falling apart.

No second egress

The fire department, however, discovered that the third-floor studios did not have a second means of egress and called in the Marlborough building department, which agreed that a second means of egress was required, an exterior staircase down the back of the house.

Wallace was surprised and confused. In 2005, when he converted the attic space into the two studios, he remembers that his licensed carpenter discussed with a building inspector exactly where an interior staircase was to be built. According to Wallace, the building department approved the staircase and, as far as he understood, the studio conversions. According to the building department, however, no building permit had been pulled, and the two studios also probably required a zoning variance.

Lacking a second means of egress, the two studios were officially uninhabitable. The building department condemned the studios and ordered Wallace to evict the tenants within 30 days, by November 26. The building department, however, also advised Wallace that he should “not kick the tenants out into the snow” and should find alternate living accommodations for them. Having rented them “uninhabitable space,” they implied that he was responsible for his tenants’ current plight.

The building department had overstepped its authority. All they could do was order the premises vacated. Instead, just like our state’s rent withholding law, they were effectively blocking eviction while at the same time putting burdens on the landlord to provide for nonpaying tenants.

A year ago, the attacking tenant, Ablazey, had moved into one of two studio apartments on the third floor of the Marlborough property. For Ablazey’s studio, the rent was $125 a month, and from day one, there was no rent, not even a deposit from the tenant. In the spirit of running a sober house, however, Wallace overlooked Ablazey’s nonpayment, a big mistake given the difficulty of eviction.

Ablazey soon had a new neighbor in the adjacent third-floor studio when Fred Abelli, who was just out of prison, moved in. The two began to do illegal drugs together, as was later admitted in court. Neither one had a job. Both had criminal records. Abelli also soon stopped paying rent.

A fake fall

Lacking an escrow requirement, our state’s rent withholding law allows tenants to withhold rent they never intend to pay back. The law is flat-out wrong, and tenants know it. In their heart of hearts, they know it is wrong to steal rent from their landlords.

And the way they act shows it. To counteract their guilt, they must vilify their landlord, turn their landlord into “the bad guy,” which then gives them permission to abuse the landlord further in illegal ways. Wallace’s story shows how far it can go.

Last fall, Abelli (not the tenant who attacked Wallace) decided to counteract his nonpayment of rent. Hoping to sue Wallace for money, he faked a fall down the cellar stairs. He called 911 and the Marlborough fire department came to the property. Abelli was unharmed, according to the fire department. Abelli took himself to the hospital where again no injury was found.

A day or two later, Ablazey told Wallace that Abelli had asked him to testify that he saw Abelli fall down the stairs. Ablazey admitted that he saw nothing of the sort and did “not want any part of that.” The relationship between Ablazey and Abelli was falling apart.

No second egress

The fire department, however, discovered that the third-floor studios did not have a second means of egress and called in the Marlborough building department, which agreed that a second means of egress was required, an exterior staircase down the back of the house.

Wallace was surprised and confused. In 2005, when he converted the attic space into the two studios, he remembers that his licensed carpenter discussed with a building inspector exactly where an interior staircase was to be built. According to Wallace, the building department approved the staircase and, as far as he understood, the studio conversions. According to the building department, however, no building permit had been pulled, and the two studios also probably required a zoning variance.

Lacking a second means of egress, the two studios were officially uninhabitable. The building department condemned the studios and ordered Wallace to evict the tenants within 30 days, by November 26. The building department, however, also advised Wallace that he should “not kick the tenants out into the snow” and should find alternate living accommodations for them. Having rented them “uninhabitable space,” they implied that he was responsible for his tenants’ current plight.

The building department had overstepped its authority. All they could do was order the premises vacated. Instead, just like our state’s rent withholding law, they were effectively blocking eviction while at the same time putting burdens on the landlord to provide for nonpaying tenants.

Dangers from the law

Ablazey’s eviction, held up by the building department’s pressure and the free rent trick, was resolved by his subsequent arrest after his attack on Wallace.

But Wallace’s trouble with his tenants is not over. Abelli, the tenant who faked a fall down the stairs and called the health inspector, is still a tenant in Wallace’s property and still pursuing his lawsuit against Wallace.

Once again, what is wrong here is forcing tenant and landlord to live in close proximity while they fight. As soon as relations go bad, a landlord should be able to evict a tenant promptly. If eviction had been prompt, the attack on Wallace would not have occurred.

In 1972, the U.S. Supreme Court ruled that rent escrowing was constitutional and a proper way to defuse the high tension that can occur between landlords and tenants. The Court said:

“Holding over by the tenant beyond the term of his agreement or holding without payment of rent has proven a virulent source of friction and dispute. We think [the State] was well within its constitutional powers in providing for rapid and peaceful settlement of these disputes.”

What if the tenant has no rent money to escrow, is evicted and has legitimate gripes against the landlord? The Supreme Court answered this question:

“The tenant is not foreclosed from instituting his own action against the landlord and litigating his right to damages…”

Wallace is not recovering well from his physical attack. Three weeks later, at the time of this writing, he was rehospitalized with pneumonia and an infected wound.