Every year, about this time, I find myself daydreaming about living in condominium.  Maybe it’s the cold, crisp air or the fewer hours of daylight.  More likely it is the hours spent raking leaves, cleaning gutters and shoveling snow!  Ah yes the modern conveniences of condominium living as provided by the on-site maintenance staff.  The guy (or gal) available to every unit owner day or night, 24 hours a day, seven day s a week.  Have a leak, broken key, broken window or other problem?  Call downstairs and Hank the Handyman is on his way.  No question that the resident maintenance person is a modern convenience which makes condominium living advantageous.

But what about when Hank isn’t so handy any more?  What happens when the residents decide that Hank is not to be trusted with the keys to their units?  What happens on the day that management hands Hank his pink slip?  In a perfect world, Hank packs his bags, returns his keys and moves along.  In the real world (the one which we are all forced to deal with), Hank may not have someplace else to go and may not be cooperative.

The difference between whether Hank will be removed in an efficient and economical manner or will be living with you rent-free comes down to the type of legal relationship which you have established with Hank.  Specifically, whether or not Hank is considered a tenant or a mere licensee, a very important distinction.

            A tenant is a term which applies to every person who is provided with a right of possession to a premises for a period of time.  In Massachusetts, a landlord can only regain possession through the use of a Summary Process action. In contrast to a tenant, a license does not convey the right of possession to the resident.  Rather, it conveys a limited right to the use of real estate for a limited time and for a limited purpose.

            Upon the termination of the license, the occupant is rendered a mere trespasser on the premises.  As a trespasser, the occupant is not entitled to Summary Process and can be removed by filing and obtaining a  Preliminary Injunction.  The process of obtaining this injunction will often save substantial time and money since the occupant can not file counterclaims or discovery.  After a short hearing, an order will be issued requiring the person to vacate and remove all property.

            While this differentiation has been recognized as the common law in Massachusetts, there was no appellate Court decision on this issue until the recent case of Beacon Park Associates v. Corbett.  In that case, an onsite maintenance worker has terminated.  At the commencement of his employment, this person has executed a Licensee Agreement which specifically provided that he was a licensee and would be required to vacate upon the termination of his employment.

            Of course, he refused to vacate this apartment when he lost his job.  Thus, we filed an action in the Superior Court requesting an order that he be required to vacate and to remove all personal property.  After the Superior Court entered this order, the Defendant filed an appeal with the Massachusetts Appeals Court.  Specifically, the Defendant argued, among other issues, that the owner should be required to file a Summary Process action in which he could then file discovery and counterclaims (this is despite the fact that he was unable to identify any defenses when asked by the Court).

            The Court, while recognizing that there was no prior case law on this issue, affirmed the owner’s right to remove a licensee from possession through the use of an injunction.  It also recognized that there were no valid defenses to this action so long as the Defendant was, in fact, a licensee and not a trespasser.  As a result, the Defendant was removed from the property in a matter of weeks rather than after months of delays in a Summary Process case.  In fact, even with the case being brought to the Appeals Court, the entire process lasted less than two months.

Understanding the importance of this differentiation, you should be asking yourself how you make sure that your resident staff will be considered a licensee rather than a tenant.  With some initial planning, this new case law and a well-drawn agreement, it should not be a problem.  There are some of the factors which a Court will consider in making this determination:

Is There a Written Agreement?

A written agreement which clearly provides that the resident is a licensee and must vacate at the termination of employment will be a significant factor in determining the status of an occupant.  This document should make clear that the relationship of the parties is that of employer/employee rather than landlord/tenant.  It is useful to provide that living on–site is primarily for the convenience of the employer (the association).  Once you have this agreement, be careful not to enter into later agreements which may create a tenancy.  Telling the staff member that she can stay another two weeks if she pays a set sum is likely to create problems.

Did the Resident Pay Rent for the Apartment?

Be wary of accepting payments from resident staff members, regardless of whether it is before or after their termination.  Payment of rent is a classic indication of tenancy.  If you accept a payment from the staff member after they are terminated, you may have created a tenancy where none existed previously.

Is This a Unit Which is Specifically Held for Maintenance Staff?

In most associations, a specific unit is designated as the “superintendent’s unit.”  If you start to use other space for these people, it may appear to be more along the lines of a tenancy.

Is There Other Documentation Which Suggests That the Parties’ Intention Was to Create a Tenancy?

Be careful how you label this person on letters, notices, etc. Don’t refer to their “tenancy” or talk about their payments of rent.  Since the basic issue is whether the parties intended to create a tenancy, these inaccuracies may be more damaging than one might think.

            Once again, on-site staff is a major convenience to residents and management.  Not only does it provide residents with the feeling of quality management, but it also helps managers avoid those late-night phone calls and pages. Likewise, with proper planning and consideration, management can insure that they are able to remove a resident staff member at the conclusion of their employment.