Get Out! A Landlord’s Guide to Massachusetts Evictions

by Rich Vetstein on October 7, 2011 · 14 comments

in Landlord Tenant Law, Massachusetts Real Estate Law, Real Estate Litigation

Massachusetts Summary Process Evictions: An Unlevel Playing Field For Landlords

How do you evict a tenant in Massachusetts? In Massachusetts, evictions are called “summary process.” According to the rules governing eviction cases, summary process is supposed to be “just, speedy, and inexpensive.” In practice, however, summary process can be anything but that. In fact, as I always inform my landlord clients, Massachusetts is one of the most tenant friendly states in the country, and an eviction can be costly, frustrating and unfair to landlords. In some cases, it can take many months to evict a tenant.

Further, Massachusetts eviction practice is loaded with traps for the unwary and procedural complexities for landlords. Landlords who represent themselves do so at their own peril and will often arrive at court with their cases dismissed for not following these requirements. It’s not a do-it-yourself situation.

Grounds For Eviction

A.      Non-payment

There are several common grounds for evicting a tenant. The most common is for non-payment of rent. In these cases, the landlord must send the tenant a statutory 14 day “notice to quit” before starting the eviction process. The 14 day notice to quit must be drafted carefully, and the best practice is to have it served by a constable or sheriff to ensure proof of delivery. The landlord must prove in court that the tenant received the notice, and service by constable or sheriff will automatically qualify as “good service.” Certified mail is not good enough as tenants can avoid pickup. Having an experienced eviction attorney draft the notice to quit can prevent have your case being “dead on arrival.”

B.      No-Fault

Another common ground for eviction is for termination of a 30 day tenancy at will, otherwise known as a no-fault eviction. Again, a 30 day notice to quit must be served on the tenant before commencing an eviction. Landlords often trip up on this type of notice with short months. In practice, judges will often give tenants in no-fault evictions a bit more leeway in terms of vacating the premises.

C.      For cause

“For cause” evictions encompass the range of bad behavior by tenants in violation of lease provisions. It could be illegal activity, drug use, excessive noise, uncleanliness, harassment of other residents, non-approved “roommates” and the like. Like all other evictions, the landlord must issue a notice to quit to the tenant stating the specifics of the offenses. “For cause” evictions are the most involved of all evictions as the landlord must offer proof by way of live testimony of the tenant’s violations of the lease. Getting police officers to show up for an eviction hearing can be challenging. For drugs and other illegal activity, Massachusetts also has a special expedited eviction process.

Read our post on the Massachusetts Notice To Quit: Don’t Be Dead On Arrival At Eviction Court

Going to Court

Starting an eviction requires the preparation and service of a Summary Process Summons and Complaint. You can choose to file your case in the local District Court or the Housing Court which is specialized to hear evictions. The Housing Court fees are less expensive, but can be busier. Some Housing Court judges have the reputation of being tenant or landlord friendly as well. Some would probably be happier retired and playing golf. It’s a tough job these days.

The summary process summons and complaint form is complicated to the layperson. It must be first served by a constable or sheriff on the tenant. Then, no less than 7 days after, it must be filed with the court by the “entry date,” which is always a Monday. The hearings are almost always on Thursday morning. Again, it’s best to have an experienced Massachusetts eviction attorney handle the legal paperwork.

Tenant Defenses and Counterclaims

Through the use of discovery requests, defenses and counterclaims, tenants in Massachusetts have ample legal means to delay and beat evictions. All tenants have a right to file “discovery” – formal requests for information and documents – from the landlord, which will automatically delay the hearing for two weeks. The tenant also may assert defenses and counterclaims against the landlord. These can range from improper notice or service, state Sanitary Code violations, no heat/hot water, failure to make repairs, retaliation, discrimination, and violations of the security deposit law—which carries triple damages and attorneys’ fees. (See my prior post on security deposits). Regardless of the merits of such claims, these defenses and counterclaims make the eviction process more complicated, time-consuming, and expensive.

Read my post on the Massachusetts State Sanitary Code — Everything A Landlord Wanted To Know But Was Afraid To Ask

Agreements for Judgment and Mediation

Eviction sessions are very busy. In some courts, there are over 100 cases stacked up on any one day and only one judge to hear them all. Accordingly, the courts will encourage parties to work out their differences on their own through mediation which is an informal sit-down between the parties to discuss ways to resolve the case. Some courts have housing specialists who can preside over the mediation session. Mediation is always non-binding so if no agreement can be reached you can proceed to a trial.

In the Housing Court, there are trained housing specialists who facilitate the mediation process. There are many advantages for landlords to mediation, and I almost always recommend giving it a try. The end result of a mediation is for the parties to sign an agreement for judgment. In a non-payment case, you can structure a payment plan and/or voluntary move-out. For a “cause” eviction, you can provide for a “last chance” agreement or move-out. The major benefit for landlords is that an agreement for judgment becomes a binding court order and the judge is supposed to enforce it upon proof of a violation. It also shows the judge that the landlord has been reasonable and accommodating. Experienced Massachusetts eviction attorneys will also make the tenants waive their rights to appeal and right to delay the case any further so as to avoid last minute requests for more time to vacate.

On the other hand, sometimes the situation is untenable and you have to go before the judge. Some judges hold a basic hearing, giving both sides the opportunity to speak. Some judges, particularly in the Housing Court, are more formal and require an actual trial with live witnesses and exhibits. I’ve had hearings last one minute and jury trials in eviction cases go on for days. But I’m always prepared to put on a case on for trial, as I always have my client present in court or on standby.

Appeals

Tenants in eviction cases do have a fairly robust right of appeal which can greatly delay resolution of the case. (A good reason in and of itself to do an agreement for judgment waiving appeal rights). However, in certain cases, the landlord can ask the court to impose an appeal bond so the tenant must pay rent into court to proceed with the appeal. Most tenants do not have the financial ability to do that, so that will terminate the appeal.

If you have any questions or need assistance with a Massachusetts summary process eviction, please contact me via email at rvetstein@vetsteinlawgroup.com or by phone at 508-620-5352.

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Richard D. Vetstein, Esq. is an experienced Massachusetts summary process & eviction attorney who has handled over 2,000 eviction cases all across Massachusetts. For help with a landlord tenant matter, please email him at rvetstein@vetsteinlawgroup.com or call him at 508-620-5352.

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  • Pewie

    In order to avoid legal fees, a long process, and the court system to evict my tenant – can I sell my house instead?  Would he still have the same rights if there was a new owner or would he be forced to move out?

    • http://www.massrealestatelawblog.com Richard Vetstein

       He would still have same rights as if you were the owner.

    • Tara p71

      Ive had the same thought- and have a plan if court doesnt rule in my favor to get them out but Im not gonna say it here. Never know whos watching!

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  • landladyinrecovery

    I have an at will tennant who regularly has drug deals on the property. Will a judge require proof in the form of a conviction? Or will witness testimony suffice?

  • sirernestbarker

    Hello,
    We recently accepted a check as security dep. for a tenancy-at-will to commence Sept 1, with the balance to be paid then. We gave the gentleman and his “roommate” a set of keys. They asked if they could move some of their belongings in early and we agreed. Then, we found that the roommate had moved in with a 3rd (unknown) fellow. Now the check-writer had a falling out with his roommate and wants his check back. Apparently the (unemployed) roommate stole his furniture and CHANGED THE LOCKS ON OUR APARTMENT DOOR! Also the fire and ambulance showed up Friday (this is in Dorchester) on what appears to me to be a drug-related 911 call by the roommate. We are going over today to try to throw these squatters out. Are we within our rights or do we have to go through the eviction process yet again (just took six months for same unit!)?

  • Dave Galusi

    Greetings Attorney Vetstein, Fantastic blog! Head and shoulders above all online offerings!

    I am a friend of Mike Mooney, and a semi-new attorney practicing in Massachusetts. I had a question that I can’t find an answer to and was hoping you knew and would be goodly enough to provide some wisdom. I have a client who a month ago bought a 2 family home which came with a month-to-month tenant-at-will in one of the units. Said tenant had not paid rent rent for almost a year (likely professional tenant) and the previous owner/landlord sent a 14 Day NTQ 2 months ago. Tenant did not cure. My client (before being my client) sent a 30 day NTQ on July 5th, which I just learned of minutes ago. I told my client that there is a likelihood that the new NTQ will supersede the first one, and if that’s the case, the tenant may be entitled to the remainder of this rental period, and all of the next, such that we couldn’t serve a SPSC on her until Sept.1. I have searched the web but can only find situations where a LL tries to serve a 14 day after serving a 30 day. So, can we act on the initially served 14 day notice or are we now stuck with the 30? If not, does the tenant get the rest of July and August or can we serve her after August 5?

    An added wrinkle is that the tenant is 5 months pregnant, and the longer this gets extended, the higher the likelihood, I suspect, that she will be in the unit rent free until 2014 as I can’t see her being able to move or a judge ordering her out too quickly. Many many thanks.

    • Tara p71

      If the tenant didnt pay the rent- then the 14 day notice should have surficed to get you a court date. I know someone who had a child- but was playing the professional tenant crap- and when they got to court- she had 24 hours to get out. Its ridiculous how the laws protect the tenants and not one protects the landlord.

  • MonkeyWelder

    I have an 18 year old daughter. who last night during a snow storm was evicted by her mothers husband with less than 10 minutes notice. This was from the house she has been residing for at least 4 years. My daughters mother and husband made her homeless in ten minutes. She literally had no where to go during a snow storm.( I got her somewhere) My daughter has not been allowed back to collect her personal effects. I am out of state and will have her with me in 24 hours. But my daughter will have to deal with a serious financial hit to replace just her basic items and for me to get her here and set up with a place to live here. This is not a standard landlord-tenant case but after looking at cases where a nonpaying roommate/boyfriend/girlfriend is involved. A lease or payment of rent is not the only determination of tenancy(which a lot of lawyers tend to accept as fact) And such the same rules apply to remove an adult child just as it does a non paying tenant, boyfriend, girlfriend or even a squatter. I have been told by other attorneys that this is a “family matter”. I feel my daughter has right to restitution for expenses to find housing and re-provisioning her life. plus treble damages. And to put it out there my daughter was an excellent student, doesn’t drink or do drugs and has never been in any kind of trouble other than a speeding ticket. Which she owned up to and took care of it on her own. Im looking for an attorney that has some kind of experience in this and wont blow her off.

    • Tara p71

      Seriously- this a parent/ child issue. not a landlord/tenant issue.

  • Don

    In a siuation where the tenant had a lease it expired and tenant became a TAW. Now additional people over 18 have moved in. I want to create a month to montb lease. I fiynd out I have to terminate the existing tenancy. What do I do with respect to property condition statement and security deposit that is already in place?

    • Tara p71

      Do a walk through and reup it- I was also advised by my lawyer not to do a security deposit because they can make you jump through hoops if they break anything to use it. I gave my tenants back theres, with the 1% interest as indicated by my bank so that will HOPEFULLy not be an issue. I wouldnt give them the bank account number because I didnt trust they wouldnt try to use it. I know I can pay bills online using my various accounts so I didnt want them to have that opportunity. I will NEVER rent again. Being a landlord in mass is not worth the aggrevation- I would rather get a second job- less stress!

  • Mandiola

    Is he aggressive? If so, file a restraining order against him. He will have to leave the place. If he is not aggressive then: Pick any one of these beautiful nights. Take everything he owns out and change the locks ten minutes later. Then leave the house for a week. He may take you to court. But see…….roles have reversed now. I don’t think he will have the energy to take you to court. He will have to find a place to live first.

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