Houseman - Tenant Handbook

Eviction Process

Before your landlord can evict you, she must properly notify you that she is ending or terminating your tenancy. This notice must be in writing and the time period begins from the date you receive the notice. Exception: If you are a tenant under a written lease, and your landlord is evicting you because your lease has expired, no notice is required. Instead, the owner could file an eviction action claiming that you held over after the lease ended. If the owner, however, continued to accept rent from you after the lease expired, the landlord may have created a tenancy at will with you, and have to send a notice terminating your tenancy.

14-day notice to quit - This type of notice is used if the landlord claims that you owe back rent. It can be given to you any day of the month. The landlord must wait 14 days from the date you receive the notice before she can go to court to start eviction.

30-day notice to quit - If you are a tenant at will and your landlord tries to evict you for any reason other than nonpayment of rent -- or for no reason at all -- she must give you a 30-day notice to quit. You must receive the notice at least 30 days or one full "rental period" in advance, which ever is longer. MGL ch. 186 sec.12 See Types of Tenancy for more information.

7-day notice to quit - Some leases state that you can get a 7-day notice to quit if it is claimed that you have violated the terms of the lease. In addition if you are a tenant in a licensed rooming house and it is claimed that you have disturbed other tenants or caused a nuisance, a 7-day notice to quit may be issued.

Annulment under M.G.L. ch. 139 sec. 19 - A landlord may claim that you or an occupant of your apartment has used the premises for illegal purposes (such as drug dealing). In these circumstances, M.G.L. ch. 139, sec. 19 permits the landlord to skip giving the usual notice period, and to end the lease or tenancy immediately. The landlord may file a summary process action, or may seek a court injunction. The landlord has the burden of showing that eviction is permitted under this law.

Summons and complaint
After the date on the notice to quit expires, the landlord can now begin an eviction proceeding called a "summary process action." The landlord will file a complaint with the court; a copy of the complaint will be served to you. A summons must be served to you by a sheriff or a constable who is authorized by law to serve court papers. The complaint will state the reason for the eviction and how much, if any, rent your landlord claims you owe. It will also list the date, time and location of the court house where you must appear. This document will also give you the date by which your answer must be filed at the courthouse.

Answer
The answer is your chance to tell your side of the story. It is very important that you file your answer at the court and send a copy to your landlord or her attorney by the date listed on the summons. If you don't do this, the judge may default you and give the landlord permission to move you out. It is possible to get that default removed, but it is better to get your answer in on time. The forms that you need can be picked up at local district courts, your local legal services office or at www.masslegalhelp.org. As always, make sure you keep a copy of your answer for your records

In your answer, you have the right to decide if you want to have your case tried by a judge or a jury. If you don't request a trial by jury by the time your answer is due, it is too late to request this later. If you request a jury trial but later decide that you don't want a jury, you can withdraw the request as long as the landlord is also willing to do so.

This is also the time for you to make any counterclaims that you have against the landlord. Counterclaims are permitted if the eviction is for nonpayment of rent or if the tenancy is being terminated for “no fault” grounds. You should cite things such as health code violations, retaliatory actions, security deposit violations and any other circumstances that apply. If you are being evicted on “fault” grounds, however, the court will usually limit the case to the “fault” issues, and you would have to sue the landlord separately for anything that the landlord did wrong.

Defenses
There are a variety of defenses to eviction. If the landlord has not sent the right kind of notice, or has signed a new lease or continued to accept rent without reserving his rights, the case may be subject to dismissal on technical grounds.

If you are being evicted for nonpayment of rent or for a reason which is not your fault, you have the right to a defense based on the owner's failure to remedy substandard conditions, or other legal violations by the owner. MGL ch. 239, sec. 8A

To raise a conditions defense, you must show that the landlord knew or had reason to know of the substandard condition before you were in arrears on the rent, the substandard conditions are serious and had an impact on you, and they were not caused by you. Even if you have no conditions defense (for example, you were already behind on rent when the furnace broke), the landlord may have other money claims (such as for failure to properly handle the security deposit) which give you a right to an “offset” against the rent owed. If the amount you are owed (for conditions or non-conditions claims) equals or exceeds the amount owed to the landlord, you win the eviction outright, and would also get any balance left over. If your claim, on the other hand, is less than what's owed to the landlord, you should get the opportunity to pay the balance within seven days and avoid eviction.

If you are being evicted for “fault” grounds, the court's focus is on whether the alleged misconduct happened. You may still have defenses, however. The owner may not have taken the proper steps required by the lease. You may be a person with a disability, and have proposed a “reasonable accommodation” that should prevent any future problems. The lease violation may be relatively minor, and fixed by a remedy short of eviction (such as getting rid of a dog, or turning down a stereo).

Discovery
As a tenant facing eviction, you have the right to request information and documents from your landlord in order to prepare your case. If you request discovery, the court will postpone your court date for two weeks to give the landlord time to gather requested documents and send you the information. You must file your discovery papers with the court and deliver a copy to your landlord or her attorney on or before the answer date. If you do not file a discovery, then you must appear in court on the date stated on the summons.

Preparing for the hearing
Before you go to court, you need to make sure that you are prepared to give your side of the story in detail. Some things that you can do to prepare:

  • Take pictures of any damages or code violations in the apartment, making sure you mark the date that the photos were taken
  • Collect any documents that you need to prove your case and try to bring the originals
  • Get copies of any inspection reports, making sure that they are stamped and signed by the person who performed the inspection
  • If you have any witnesses, make arrangements for them to come with you
  • Prepare a brief written statement that summarizes for the court how the landlord violated the law and why you should not be evicted
  • Write out a list of any questions you may have for the landlord

Transfers
If your hearing is scheduled in a District Court and you live in the City of Boston , you can have it transferred to Housing Court. The same legal proceedings apply to Housing Court, but the judges and staff are generally more familiar with housing laws than judges in district or superior courts. Housing Courts also have the staff and knowledge to assist tenants who do not have a lawyer to complete the legal process. Even if you decide to transfer your case, you must file your answer and discovery forms by the date given on the original summons.

Hearing
Make sure that you are on time and in the room when the clerk calls your name. If you do not answer, you will be defaulted and you will lose the case. If your landlord does not appear, the case should be dismissed. Make sure to ask the clerk for a copy of the order of dismissal if this happens.

Mediation, Attorney of the Day Program, Tenancy Preservation Program
The court will give you the option to go into mediation. (At the Boston Housing Court, this is done through the Housing Specialist Department.) Mediators are trained court staff that will try to help you and the landlord to make an agreement before you go to the judge. If you go into mediation, make sure that you do not agree to any conditions that you will not be able to keep. For example, if you are going in for nonpayment of rent, and you are working out a repayment plan, make sure that it is an amount that you can afford. If you and the landlord cannot come to an agreement in mediation, then you will still be able to have a hearing before the judge. Everything that is said during mediation is confidential and should not be discussed in court if there is a hearing later.

At the Boston Housing Court , there is also an Attorney of the Day program on Thursday mornings where unrepresented landlords and tenants can seek advice and limited assistance from volunteer attorneys. The attorneys can assist landlords and tenants in filing appropriate papers with the Court (such as a late answer), in reviewing proposed agreements, and may participate in mediation.

The Housing Court Department also has a Tenancy Preservation Program (TPP) which assists tenants with disabilities who live in assisted housing. TPP can assist in stabilizing tenancies and in securing services or other assistance which may permit a tenancy to be preserved. Tenants can ask about the TPP program through the Housing Specialist Department.

Judgment
 The judgment is the final decision of the court. A judge will either rule on a case while you are in the courtroom or they will "take it under advisement," which means that the judge will send you a written decision in the mail. If the Judge rules in your favor, you will be able to stay in your apartment. If the judgment is against you, you will have to move or appeal the decision. If you appeal, you must file a "Notice of Appeal" and a "Motion to Waive Appeal Bond" within ten days of the date that the judgment entered in the court. MGL ch 239 sec. 3

Execution
If your landlord wins the eviction case and there has been no appeal after the ten-day period and no stay of execution, the landlord gets a piece of paper called an execution. This gives the landlord permission to have a sheriff or constable remove you and your possessions from the apartment. A landlord must use this execution within three months of its being issued. Only a constable or sheriff can deliver the execution and move you out. A constable must give you 48 hours written notice that you are going to be evicted. This notice will give you the date and time a constable will move you out. A sheriff or constable can only move you out Monday - Friday, 9am - 5pm, and not on legal holidays or weekends.

The constable is responsible for seeing that your belongings get put in storage and for notifying you where they will be stored. If you do not want them there you must tell the constable where else you want your belongings delivered. The landlord is responsible for the costs of moving your belongings but can recover these costs from you. You are responsible for the costs of storage, and can be billed by the storage company, but only for the period of time that your belongings remain in storage. If your belongings remain in storage for six months without storage costs being paid, your belongings can be sold to cover the cost of storage.

Stay of execution
If you lose a no-fault eviction and need more time to relocate, you can ask the judge for a stay of execution. To do this you should ask the judge for a stay at the time of the judgment, and you must complete the form that you can request at the courthouse. The judge has the power to freeze an execution for up to six months, and up to twelve months if you or someone in your household is handicapped or 60 years or older A stay cannot be granted if you are being evicted for nonpayment of rent, or for some other reason that was your fault. You should also bring with you a list of apartments that you have looked at and good reason why you need more time. If you are granted a stay of execution, you are still responsible for paying rent on the apartment while you are there. MGL ch. 239 secs. 9-11

In deciding whether to grant a stay of execution, a court looks at the hardship of both you and your landlord. Often the judge will not grant the maximum stay period initially because he or she wants to make sure that you are trying as hard as possible to find other housing. You can request an extension on the initial stay period, but will need to show that you have been diligent in your housing search efforts and have not turned down reasonable alternatives.

Sometimes landlords may offer court agreements that give you a short stay of execution but bar you from seeking an extension. A court may sometimes reject a request for an extension in this case. You should be sure that you understand what your alternatives are before entering into such agreements.

Tenants with subsidies
If you are being evicted from subsidized housing or if you hold a subsidy certificate, your case will be more complicated. If you are evicted for nonpayment of rent or for “fault” grounds, for example, the subsidy agency will usually also move to terminate your subsidy. An eviction for “other good cause” (no fault), on the other hand, should not affect your subsidy. Make sure that you contact ABCD at 617.348.6000 X 347, or any Legal Services in your area for assistance.