Frequently Asked Questions

What is a Housing Court? Is it just limited to landlord and tenant problems?

No. The Housing Court jurisdiction extends to almost all areas that relate to residential housing. There are many occasions where homeowners can utilize the Housing Court. For example, the Housing Court has zoning jurisdiction. The Housing Court can address general nuisance problems that may afflict homeowners within a neighborhood.  The Housing Court Department has jurisdiction over the Consumer Protection statute. The Housing Court has criminal jurisdiction. The Housing Court also has jurisdiction to hear residential Summary Process (evictions) cases. In landlord-tenant matters, the court has jurisdiction over all contracts, torts, and equity matters that involve the residential relationship.

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I understand that the Housing Court Department offer mediations to resolve cases before it. What is mediation?

Mediation is an informal, confidential process where a neutral person called a mediator acts to encourage and facilitate the resolution of a case without prescribing what it should be.

In contrast to a judge (or an arbitrator) who decides for the parties how a dispute will be resolved, a mediator (or conciliator) helps the parties reach their own mutually acceptable and voluntary agreement.

The role of the mediator may include: assisting the parties in identifying the issues, assessing and reviewing the relative strengths and weaknesses of their case, determining common interests, fostering joint problem-solving, exploring settlement alternatives, and finalizing a settlement agreement.

Throughout all Housing Court mediation, the decision-making authority remains with the parties to the case: unless and until an agreement is reached and approved by the judge; or, if no agreement is reached, until one or both parties terminate the mediation process and bring the case to court for determination by a judge.

• Time It almost always takes less time to mediate a dispute than it does to try a case, in question-and-answer form, with objections heard and ruled upon in accordance with the law of evidence, and with much additional time necessary if there is prior discovery, an interpreter, a jury trial, or subsequent appeal. In addition, the parties are free to schedule their own mediation at their early convenience, rather than waiting for trial after service of the summons and complaint.
  
  
• Confidentiality All communications in mediation are confidential, and neither the mediator's work product nor the participants' statements made in mediation relating to its subject matter can be later disclosed or admitted into evidence if a trial is held. Private sessions between a single party and the mediator are particularly confidential, because they are not even shared with the other party without permission. The only record of a mediation is the written agreement reached by the parties.
  
  
• Control Mediation is an opportunity for parties to resolve their own dispute rather than turning over control of the decisional process to the judge. And, unlike the judge who is bound to make a decision on the legal evidence in accordance with the legal rules applicable to the case, the parties are free to reach settlement terms tailored to satisfy their own individual interests and needs.
  
  
• Satisfaction Studies have shown that mediation generally results in a high level of participant satisfaction. And, parties often find the process useful even if only a partial rather than a complete resolution of the dispute is achieved, even if the parties are able only to "winnow away" the unimportant and undisputed issues from the narrow issues that must be tried.
  
  
• Durability Studies have also shown that individuals are more likely to accept and abide by their own decisions rather than decisions imposed on them by others. Therefore, in comparison to adjudicated resolutions, mediated agreements are more durable, and the compliance rate is very high.
  
  
• Binding effect Once approved and signed by the judge, a mediated agreement may become a judgment or court order with the same legal effect as if the judge decided the case.
  
  
• Final effect Agreements for judgment, unlike court-ordered judgments, cannot be appealed. And like other judgments, agreements for judgment can be vacated or modified only where there is mutual assent, or changed unforeseen circumstances, or other unusual events.
  
  
• Voluntary Mediation is a voluntary process, and cases are resolved by mediation only with the mutual assent of the parties. If, after reasonable effort, the parties cannot resolve their dispute through mediation, the right to trial is preserved and the judge will hear and decide the case.

I understand that the Housing Court Department employs Housing Specialist. What do they do?

The Housing Specialist Department gives procedural advice and quotes Massachusetts landlord-tenant law; provides support to presiding Judges; conducts state sanitary code violation inspections for the court; and serves as mediators in Summary Process and Civil housing cases. They also provide referrals to local social service agencies and shelter providers regarding emergency funds to prevent homelessness.

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How do I evict my tenant?

You first must determine what type of relationship you have with your tenant. The rules of the game change with this determination. There are two main types of tenancies; one at will and one under a lease. Traditionally, tenancies at will were oral. This is no longer the case. In general, if a tenancy is oral or even if it is in writing, with the provision that either the landlord or tenant can terminate the relationship by giving a notice that is equal to the interval between the days of payment or thirty (30) days, whichever is longer, it is a tenancy at will. One can easily obtain this Notice to Quit from a legal stationery store, a constable, or a rental housing association.

Most evictions are brought for non-payment of rent. If a tenancy at will is being terminated for nonpayment of rent, the landlord must give a written fourteen (14) days Notice to Quit to the tenant. Again, one can easily obtain this notice from a legal stationery store, Rental Housing Association, or from a Constable. Do not utilize a fourteen (14) days notice to quit which is designed for a tenant under a lease, as there are distinct differences.

If the tenant is under a lease, you must first examine the lease to determine how much time is required. If the reason is nonpayment of rent, by statute, you must give a written fourteen (14) days Notice to Quit.

After the notice to quit has run its course, the landlord can now proceed to serve a Summary Process Summons and Complaint form upon the tenant. Only an authorized Constable or Sheriff can serve this process. The Summary Process Summons and Complaint form is first obtained from the court. The Constable or Sheriff generally will assist the landlord in helping to fill out the Complaint form.

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What is the purpose of the Notice to Quit?

The purpose of the Notice to Quit is to terminate the tenancy. Thus, if a lease by its own terms is terminated, no further notice to quit is needed. But if notice is required, and in most cases it is mandated, then the notice to quit must be given to the tenant. Indeed, the essence of giving the notice to quit is not service, but that the other party shall have notice. Unlike the Summary Process Summons and Complaint form which has to be served by a Constable or Sheriff, there is no one designated way of giving the notice to the tenant. If the tenant gets the notice in any way, then that is sufficient. On the other hand, if the landlord sends the notice by registered or certified mail, and the tenant refuses to pick it up, the tenant does not have notice. If a Constable or Sheriff serves the notice by last and usual, and the tenant denies receiving the notice, if the judge believes that testimony, then the tenant does not have notice. A landlord can give the notice directly to the tenant in hand, but it is always advisable to have a disinterested person witness this event.

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Do I need a reason to evict my tenant?

Yes and No.  If the reason for eviction is a violation of a lease term or nonpayment of rent, this reason must be spelled out in both the Notice to Quit and on the Summary Process Summons and Complaint. In all other cases, while the substantive law of the Commonwealth may not always require a reason for termination of a tenancy, the rules of Summary Process require a reason for eviction. The reason might be simply that a tenant is holding against the right of the landlord after the tenancy has been terminated.

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Can I sue my tenant for money damages if I commence a Summary Process action?

In Summary Process, a landlord can sue the tenant for rent, even where the underlying reason for the eviction is not for nonpayment.  Within the Summary Process Complaint form provided by the court is a section entitled Account Annexed. It is in this section that the landlord can specify the months that rent is owed. The landlord, however, cannot attach to the Complaint a demand for money for other types of damages. The landlord must institute a separate case to recover other types of alleged damages.

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If I win my Summary Process case, how do I get my tenant out of the dwelling and when?

If the court finds for the landlord and grants no stays of execution, the tenant has ten (10) days to appeal from the date that the Clerk's Office enters judgment. On the eleventh (11^th) day, the landlord can ask for an execution. The landlord cannot evict the tenant without the assistance of a Constable or Sheriff. The execution, which is the document which authorizes the eviction, is addressed to a Constable of Sheriff. The Constable or Sheriff then has to give forty-eight (48) hours notice to the tenant before the actual eviction can take place.

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Can I move them out on a weekend?

No. The execution cannot be levied on at any time the court is closed.

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How long is the execution good for?

For possession of the unit, it must be used within ninety (90) days. The monetary portion of the execution is good for twenty (20) years.

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Can I collect my rent without going through Summary Process?

Yes, the landlord can sue the tenant for rent owed as well as any other damages in a Civil Action or through Small Claims. The procedures for Civil Actions are governed by the Massachusetts Rules of Civil Procedure. Normally, it would be advisable to hire an attorney before suing a tenant for money damages in a Civil Action. Small Claims, on the other hand, was designed to assist litigants who wish to proceed without an attorney. There is normally a $2,000.00 ceiling on the amount of money damages that can be sought. Thus, if a tenant owes $4,000.00 in rent, at the time that a Small Claims action is instituted, $2,000.00 of that amount will be waived. On the other hand, there is nothing to prevent a landlord from suing for rent as each month comes due, as long as the contract rent is not above $2,000.00.

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Can I stop my tenant from causing damage to the apartment or creating other nuisances, before going through the eviction process?

Yes. The Housing Court Department was designed for the person without an attorney, be it landlord or tenant. The landlord can come into the Housing Court to seek equitable relief to enjoin nuisances.

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Can I charge the tenant for water?

Maybe. It is generally the landlord's responsibility to provide and pay for water for the dwelling.

The Governor has signed into law an act authorizing water sub-metering in residential tenancies. This statute overrules an advisory ruling issued previously by the Department of Public Health. The statute amends M.G.L. c. 186 by adding a new section. While paragraph (a) sets out the definitional section, the rest of the section allows the landlord to enter into with a residential tenant a new contract whereby the landlord may charge that tenant for water usage only if the landlord installs water conservation devices for all faucets, showerheads and toilets in the unit.

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There was a drug raid in my tenant's apartment. How soon can I get them out?

Under M.G.L. c. 139, §19, if drugs were found in the unit, the landlord may avail himself/herself to a speedy eviction.

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I served a Notice to Quit several months ago. Do I have to serve another Notice to Quit or can I use the prior notice and now serve the Summons?

A question such as this one is legal in nature and thus beyond the scope of court personnel to address. While a number of variables impact an answer, such as the language used in the original notice to quit, generally speaking, the older the notice to quit, the greater likelihood a new one may need to be re-served.

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The defendant was not in court. What do I (the plaintiff) do now?

The Court has forms which you should fill out before you leave. Nothing further is required at this time. You will be receiving a "default notice" by mail, as will the defendant. If the latter does not move to timely remove said default, the Clerk's Office may be contacted relative to your further post-judgment options.

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After I have removed my tenants from my property, how do I go about collecting the rent owed?

Several options are available. They range from supplementary process or collection directly from the tenant in a court ordered context, to levying against assets of the debtor or even attempted recovery against a third party, such as an employer holding wages, through trustee process. The Northeastern Division favors post-trial motions to collect on the judgment.

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Can the landlord evict me without going through the courts?

No. The landlord cannot use self-help.

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What do I do when I receive a notice to quit?

Read the notice to quit to understand the reason. If the reason is for nonpayment of rent, you may be able to stop the eviction process by paying what is due by a specified time. The rules vary depending upon whether the tenant is one at will or whether one under a lease. If the tenancy is at will, the rule varies depending upon whether this is the first notice to quit received within the last twelve (12) months. After the notice to quit has run its course, you should expect to be served by a Constable or Sheriff with a Summary Process (eviction) Summons and Complaint form. You may well want to consult with an attorney.

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Do I have to leave the premises if I receive a Notice to Quit?

No. The notice to quit was sent to you by a landlord as a prerequisite to beginning the eviction process. The notice to quit is not a court order. Only the court can order an eviction.

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If I am served with a Summary Process Summons and Complaint, what do I do?

Read the Complaint to determine the reason for the eviction, and what court the Complaint has been entered. The Complaint will spell out the deadline for filing an Answer with the court, and the date and place of trial. You should come to court to file the Answer by the deadline indicated on the Complaint. The court has form Answers. Come to court on the date of trial, even if you did not file an Answer. If you do not come to court on the date of trial, you will automatically lose.

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If I am moved out pursuant to a court's execution, do my belongings go out into the street?

No. Constables will store the property in a licensed storage facility. That facility must keep the belongings for at least six (6) months. Whatever licensed storage facility which accepts your property will have an automatic lien on it for reasonable storage fees and expenses of removing it to the place of storage. It has been the custom in Massachusetts for a period of time for the landlord to pay in advance, the moving expenses and three (3) months storage in advance. Where this occurs, there is no lien on the property for that period. The landlord can sue the tenant for the cost of the eviction. If you the tenant, the owner of such personal property are present when the officer removes it, you may claim it to prevent the belongings from being removed to the storage facility. There is another method by which the belongings can be seized by the officer when the eviction is executed, but this method is seldom, if every utilized.

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If my apartment has material defects, can I legally withhold my rent to induce my landlord to correct the violations?

Court employees cannot advise you as to whether you have the right to legally withhold rent. To obtain that advice, you should consult with an attorney. The rent withholding defense is controlled by Massachusetts General Laws, Chapter 239, §8A. The essence of the defense is that there are material code violations present in the apartment, not caused by you or anyone under your control, and that the landlord knows about these material code violations before you start to withhold your rent.

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Can I take other actions to force my landlord to correct code violations?

You should first tell the landlord about the violations. If this does not work, you can contact your local Board of Health, or Inspectional Services, asking them to inspect the property. The Inspector can cite the property, and if the landlord does not comply with the order of the Inspector, the Board or the Department of Inspectional Services can bring your landlord to Housing Court. In addition, the tenant can come to the Housing Court to obtain compliance. The tenant can ask the court in a Civil case to authorize an Order, ordering the landlord to correct. Failure to so correct can result in civil contempt. The tenant can also swear out a Criminal Complaint.

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Can my landlord enter my apartment when I am not at home?

Unless it is an emergency, no landlord can enter an apartment, absent a lease provision or a court order. Pursuant to G.L. c. 186, §15B, a lease for residential property can provide that the landlord may enter to inspect the premises, to make repairs or to show the same to a prospective tenant, purchaser, mortgagee or its agents before the termination date of the lease. The landlord also has the right to inspect the apartment within the last thirty (30) days of the tenancy or after either side has given notice. But Housing Court judges have repeatedly ruled that even where the landlord has the right to enter, reasonable notice must be given to the tenant that an entry will be made at a specific and reasonable time. Thus, the tenant can seek an Order from the Housing Court to insure the right to have that notice. Conversely, if the landlord gives that notice, and has the right to give that notice, the landlord can also come to the Housing Court for an Order permitting entry at a reasonable time and reasonable notice, if the tenant refuses entry.

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Am I entitled to notice if my landlord wants to increase my rent?

The tenancy between the parties is a legal contract. It cannot be changed by one side. The tenant can agree to a rent increase. But if the tenant does not agree to the rent increase, then the landlord must terminate the tenancy. In a tenancy at will, the landlord must then give a notice to quit but such written notice may include an offer to establish a new tenancy for the same premises at the higher rent. If the tenant does not agree to this rent increase, the only option for the landlord is to commence eviction proceedings.

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If the landlord decides to commence an eviction action because I will not pay the rent increase, even if I have no defense to the eviction, can I still ask the court for a stay of execution?

Yes. Where a tenancy has been terminated without fault of the tenant, the tenant may request a stay. As long as the tenant is paying the old contract rent, the landlord is not entitled to bring an eviction for nonpayment of rent.

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Are Interrogatories and documents filed in the Housing Court?

They are filed in summary process (eviction) cases but in civil cases Standing Order 1-96 of the Housing Court states that discovery does not need to be filed with the Housing Court.

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What is the filing fee for Summary Process and Civil cases?

$120.00 plus a $15 surcharge

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What is the filing fee for a Small Claims case?

If the claim is under $500.00, the fee is $20.00 plus a $10 surcharge; and if the claim is $500.00 - $2,000.00, the filing fee is $30.00. plus a $10 surcharge

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Do you sell 14 day notices?

No. They may be purchased from stationery stores, Rental Housing Associations, or a Constable's office.

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Are you open through lunch?

Yes we are.

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How much does it cost to file a motion?

It costs nothing to file a motion in an existing case.

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Why do I need to file the Answer 2 form in a Summary Process case?

An answer form is the official document that explains to the court your side of the case. It is not mandatory that an answer be filed. An answer is a response to the allegations made against you in the plaintiff's Complaint. Depending on the kind of case involved, an Answer may or may not be necessary. However, it is always advisable to deny in writing any part of your opponent's case in the event you disagree with it.

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I received a default notice in the mail, what should I do?

You need to come to the Housing Court and file a Motion to Remove the Default Judgment. This will get you in front of the Judge to explain why you were not in court.

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My landlord has threatened to change the locks to the apartment if I do not pay my rental arrearage. Can he do this?

No. As a tenant, you are entitled to a Notice to Quit and a Summons for a hearing in court for nonpayment of rent. The landlord cannot use self-help to evict a tenant.

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Am I entitled to interest on my last month's rent and security deposit, and how much?

Yes. Yearly on the anniversary of the payment of the last month's rent and security deposit at the rate of 5% or the prevailing bank rates if the last month's rent and security deposit was placed in an escrow account.

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I lost my case in court and the landlord has obtained an execution to move me out. Am I going to get any further notice?

Yes. You will receive a 48 hour notice notifying you of the date and time the Constable or Sheriff will move you.

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My landlord has turned off the heat during the winter and my children are freezing. Is there anything I can do to obtain heat for my children as quickly as possible?

You may come to court and file an application for a Temporary Restraining Order wherein you request that the landlord provide heat as required by law and that request will normally be acted on by the Court on the same day it is filed.

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What are the filing dates for Summary Process cases?

The Uniform Rules of Summary Process Procedure are very technical in said regard. Entry dates for summary process cases are based upon when the tenant is served; generally, there must be at least seven (7) but not more than thirty (30) days between service on the tenant and entry into the court. Also, only Mondays are appropriate entry days, unless they are a holiday. In the latter event, the case may be entered on a Tuesday.

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I agreed to a payment schedule in court that I can't afford to make. What do I do now?

Two basic options are available. First, you may attempt to revise said payment schedule with the creditor directly. Secondly, you may file a motion with the court, and ask the judge to modify the same after hearing. However, if the former option is chosen, you should reduce any agreement to written form and secure the other party's signature . It is extremely difficult for a judge to modify an agreement.

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I'm supposed to be in court for a contempt, but I can't make it. What will happen now?

Unless the other side agrees to continue the case or postpone it to a later date, you will be defaulted and a capias for your civil arrest will issue. Such matters are very serious and should never be ignored.

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I got a notice to show cause in the mail. What does that mean and who can I talk to about these violations?

It means that a City or Town inspector believes your property is in violation of applicable law on the subject. You should immediately contact said inspector relative to any questions you may have, including the securement of additional time if needed, to correct any agreed upon violations.

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I can't make it into court for a hearing on a notice to show cause. What will happen to me?

Unless the Government agrees to postpone the case to a new date, you will be defaulted and criminal process will issue. Further, notice from the court follows instructing you about your required presence on a date specific for arraignment on the alleged violations in question.

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Why can't the court personnel discuss the violations with me? I own the property, why do I have to speak with the inspector?

Court personnel have no personal knowledge of your property or the alleged violations in question. Only the City or Town, through its inspector, are familiar with the same as a result of their direct inspection work. When the matter is marked up by the court, before a Clerk or judge, then you may present your side to the Court.

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Your court issued a warrant for my arrest. How do I remove the warrant?

Upon discovering that a warrant has been issued against you, a party should immediately appear in person at the Office of the Clerk Magistrate to file a Motion to Remove the Default and Recall the Warrant.

Since an outstanding warrant may result in the arrest of the alleged violator, time is of the essence and prompt action should be undertaken.

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The Court found me guilty of the violations. I've been ordered to pay fines. Where do I pay them?

At the time the Court levies a fine or fines against someone, special attention is always given to insure that the amount and terms of payment are made clear for the record. In the event that a defendant is uncertain as to either of these areas, however, the Office of the Clerk Magistrate will have a written record of the same and may be contacted.

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