The Notice To Quit: Terminating Massachusetts Residential Tenancies, Traps For The Unwary

by Rich Vetstein on June 23, 2014 · 13 comments

in Housing Court, Landlord Tenant Law, Leasing, Massachusetts Real Estate Law, Rental Housing

eviction-notAvoid Being Dead On Arrival In Eviction Court

The first step in evicting any Massachusetts tenant is issuing a notice to quit which is a legal document formally notifying the tenant that his tenancy is being terminated for a particular reason and giving him the date upon which he must move out. There are very specific rules as to how the notice must be drafted, what it must say, and how it must be delivered. Any mistakes in providing a proper notice to quit can torpedo your eviction case before you even see a judge. Needless, to say I recommend hiring an experienced Massachusetts eviction attorney to handle drafting and serving the notice to quit. Here are all the various rules and considerations for sending out a notice to quit.

A.      Non-payment of Rent

One of the most common reasons for starting an eviction is for non-payment of rent. Whether the tenant has a written lease or is a tenant at will the landlord must send the tenant a 14 day “notice to quit” before starting the eviction process. The notice to quit will typically provide as follows:

Dear Mr. Tenant: This office represents your landlord, Mr. Landlord. You are hereby notified that your tenancy is terminated and to quit and deliver up and move out of the premises you now rent namely: 123 Main Street, Anytown, MA and all appurtenant uses thereto 14 days after your receipt of this notice. The reason for this notice is that you have failed to pay the rent due as follows: Total Owed: $7,200.00.

1. Service of the Notice

Many landlords believe that a notice to quit should be served by certified/registered mail. This is a very bad practice because the tenant can always avoid the mailman. In court, the landlord has the burden of proving that the tenant received the notice. The best practice is to have the notice to quit served by a constable or sheriff to ensure proof of delivery. Under the court rules, service by a constable or sheriff is “good service” whether the tenant is served in hand or the notice is left at the premises.

2.  Tenants At Will

If a landlord is sending a 14 day notice to quit for nonpayment to a tenant at will (as opposed to a tenant with a written lease for a set term), the notice must also include the following language:

 “If you have not received a notice to quit for nonpayment of rent within the last twelve months, you have a right to prevent termination of your tenancy by paying or tendering to your landlord, your landlord’s attorney or the person to whom you customarily pay your rent the full amount of rent due within ten days after your receipt of this notice.”

3. Calculating Notice Date

The next trap for the unwary is calculating the notice date. You cannot start the eviction until 14 days have elapsed since the tenant is served with the 14 day notice to quit. So you need to know exactly when the tenant was served so you can properly calculate the date upon which you can start summary process. If you start the eviction too early, the case will get dismissed.

4. Cure Rights

Landlords should also be aware that under tenant-friendly Massachusetts law, a tenant at will can cure and reinstate his tenancy by paying the outstanding rent (plus court costs if claimed) up to the Monday answer date in the eviction case — and most judges won’t evict any tenant who shows up to court fully paid up.

Sometimes, landlords make the mistake of accepting rent from a delinquent tenant without endorsing the check the proper way in order to avoid reinstating the tenants. If you receive a rental payment after a notice to quit is issued, you must endorse the check as follows:

“Accepted for use and occupancy only and not for rent”

Your notice to quit should also have the following non-waiver language:

If your tender of rent or payments does not comply with the requirements noted above or otherwise cure or excuse the breach as provided by law, any funds paid by you after the date of this notice shall be accepted for use and occupancy only and not for rent, shall not waive this notice or any subsequent eviction proceedings, nor shall it create or reinstate any tenancy.

B.      Termination of Tenancy At Will

Sometimes landlords just want to move on from a problematic tenant at will, raise their rent or change the lease terms. In these situations, landlords must serve a notice terminating tenancy at will. This is sometimes called a 30 day notice, but this is actually inaccurate because almost always more than 30 days notice is required to be given. It’s really a rental period notice.

Generally, at least a full rental period of notice must be given to a tenant at will, but the termination date must be at the end of the following rental period, or 30 days whichever is longer. For example, if you are terminating a tenancy at will on June 10, the notice must provide that the tenant must vacate by the following July 31. Terminating a tenancy at will in February will also be problematic.

In practice, judges will often give tenants in no-fault evictions a bit more leeway in terms of vacating the premises.

C.  Non-Renewal of Lease/Offer of New Tenancy

Most landlords get tripped up in the situation where a written lease self-extends but the landlords wants to raise the rent, change the lease terms or move on from the tenant. In this situation, a notice terminating tenancy must be issued to formally terminate the tenancy, coupled with an offer of a new lease/tenancy. If the tenant does not accept the offer of a new lease/tenancy, the tenancy will end on the date provided in the notice. If the landlord wants the tenant to move out, he doesn’t need an offer of a new tenancy obviously.

D.      For Cause Situations

“For cause” evictions encompass a wide range of bad behavior by tenants in violation of lease provisions or the law. 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. If the tenant has a standard form lease, the notice to quit will typically be a 7 day notice. For tenants without a written lease, it’s a gray area, but I would use a 30 day notice. For drugs and other illegal activity, Massachusetts also has a special expedited eviction process where you can go to court right away without any prior notice to quit, but the tenant is entitled to notice of the court proceeding and an opportunity to contest it and cross-examine witnesses.

Sending a proper notice to quit is merely the first step in the eviction process, but a very important one as it can get your case dismissed before a judge hears the merits of the case. There are so many other procedural traps for the unwary which follow during an eviction case. Again, if you are considering evicting a tenant, do not attempt to do it yourself.

____________________________________

100316_photo_vetstein-2.pngIf you need assistance drafting and serving a notice to quit and evicting a tenant, please contact Attorney Richard Vetstein via email at rvetstein@vetsteinlawgroup.com or telephone at 508-620-5352.

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  • Angel Homecare

    I was just served a notice to quit. Given 14 days to vacate the premises of our commercial lease. What is the next step after these 14 days are over? Is it then that they can go to the court and start or request eviction proceedings? Also how much time to I have to vacate before I get slapped with an eviction notice and get locked out of our business. Previous owners made a deal with me and this new company that bought the building is not sticking to it. Dont have anything signed just emails with the proposal that the old owners agreed to.
    Thanks in advance

  • FEDUP

    Have a tenant in Ma , had a lease for 1 year bounced 3 checks and only paid rent once on time (always a tall tale)
    Lease was up in Jan they begged to stay until june so kids could finish school and would NEVER be late again there financial worries were behind them, Hubby makes 14,000 per month paid jan and that was it!!!! But have money for new cars and trips out of country for nice vacations!!! I was battling cancer at the time so foolish me agreed had more than them to be concerned with, Do you think the court will let them stay? I still have to pay the mortgage on the home and lost my job due to having cancer twice in 1 year man when it rains it pours!!!

    • GiGi S

      My Dear.. so terribly sad to hear your battle with cancer but stay strong and hopefully everything will come out well.. And never forget the Royal Variety of different levels of tenants one may acquire. I had one like yours at one time Cadillac Escalades in the driveway Mercedes-Benz . sushi Sushi take out every night.. Dolce & Gabbana with Manolo Blahnik shoes cha cha shoes… That and so much more but always an excuse and no money when it came to rent.. Tennis like that will be an albatross around your neck get rid of them ASAP and focus mostly on your help the rest will come in good time

  • joseph takasugi

    Hi. You say: “Generally, at least a full rental period of notice must be given to a tenant at will, but the termination date must be at the end of the following rental period, or 30 days whichever is longer. For example, if you are terminating a tenancy at will on June 10, the notice must provide that the tenant must vacate by the following July 31.” Is the termination date of the tenancy the date you provide the notice, or the end of the notice period? In your example, is the termination June 10, as you indicate/ or July 31? thanks.

  • Vera

    Are they allowed to issue a fee with the 14 day notice to quit?

    • http://massrealestatelawblog.com Rich Vetstein

      Only if you are more than 30 days late with your rent.

  • confused1987

    I’m living in a rooming house and I had broken a rule about overnight guests. I was given a warning Notice stating I may get a notice to quit. My lease is up this month and i was already Offered an opportunity to recertify My lease. What rights do I have to fight this?

  • Christen Cone

    Hi….i live in a 4 family house. Landlord had to sell house. New landlord offered me to move to the second floor and pay almost 500 more a month…and my own utilities. Or he has ti hand me a notice to quit. He handed me my notice to quit on thanksgiving and i have 30 days. So now i cant buy anyone a Christmas present. I have been so sad because financially i cant come up with the ridiculous amt of money it takes to move. …..anyone know if i have any rights?

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  • Ilese

    This is a very helpful blog. My cousin who is a landlord is currently in quite the predicament with a tenant-at-will. She has violated the terms of their rental agreement by having numerous loud parties. He confronted her about this and asked her to move out. She refused. In the heat of the moment, my cousin’s girlfriend lightly struck (but did not hurt!) the tenant. My cousin is a very emotional man and said some things that the tenant interpreted as threatening. The tenant has restraining orders against both my cousin and his girlfriend. He has tried to evict her since but is not allowed to be in contact with the tenant. The tenant is still living there and paying rent though the other roommates have all left. The tenant is taking my cousin to court over the “assault” and eviction.

    Does my cousin have any legal grounds? We are very worried as this unruly tenant is turning his retirement into a nightmare!

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

      This is a very complex situation. Your cousin needs a good lawyer. Feel free to have him email me at rvetstein@vetsteinlawgroup.com

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