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Guide Guide for eviction appeals to Appellate Division

Eviction cases decided in the District Court may be appealed to the District Court Appellate Division. Eviction cases decided in the Boston Municipal Court may be appealed to the Boston Municipal Court Appellate Division. This guide refers only to appeals to the Appellate Divisions. For information on how to appeal an eviction case from the Housing Court or Superior Court to the Appeals Court, see the Housing Appeals Guide below.

Table of Contents

Overview

While the District Court and Boston Municipal Court have separate Appellate Divisions, the process for appeals is the same. Therefore, this guide uses the term “Appellate Division” to refer to either the Appellate Division of the District Court or of the Boston Municipal Court. The term “trial court” refers to either the District Court or Boston Municipal Court in which your case was decided. 

The District Court and Boston Municipal Court have adopted joint rules of procedure for appeals to the Appellate Division. The rules are called the District/Municipal Courts Rules for Appellate Division Appeal (“Dist./Mun. Cts. R. A. D. A.”). During the COVID-19 pandemic, the Appellate Divisions have also issued guidelines on operating procedures.

An eviction appeal by the defendant to the Appellate Division commonly involves 3 steps:

Step 1. File notice of appeal and pay (or seek waiver of) appeal fee

Step 2. Pay (or seek waiver of) appeal bond

Step 3. Select method of appeal

A Step 4 will be necessary if the defendant’s appeal from the trial court’s decision does not automatically stay the execution on the judgment pending appeal.

An appeal by the plaintiff to the Appellate Division commonly involves only steps 1 and 3.

Step 1: File notice of appeal and pay (or seek waiver of) appeal fee

You must file the notice of appeal in the trial court within 10 days of the clerk’s entry of judgment on the docket.

Filing a notice of appeal is the first step that starts the appeal process. You must include in the notice of appeal: (1) your name, (2) a short description of the legal point(s) you want the Appellate Division to review, and (3) the judgment or other decision that you are appealing. You must file the notice of appeal in the trial court within 10 days of the clerk’s entry of judgment on the docket. 

Neither the trial court nor the Appellate Division may extend this 10-day deadline.  However, if you timely file in the trial court and timely serve the other side certain motions within 10 days of the entry of judgment, you will have 10 days from the court’s decision on the motion to file your notice of appeal. The motions that, if timely filed and served, reset the time to file a notice of appeal are:

  1. Rule 52(b) (alter or amend findings)
  2. Rule 59 (new trial)
  3. Rule 59(e) (alter or amend judgment)
  4. Rule 60 (relief from judgment)

Along with the notice of appeal, you must pay in the trial court the $180 filing fee. If you cannot afford this $180 fee, you may request that the trial court waive it by submitting the court form “affidavit of indigency.”

Additional Resources for Step 1: File notice of appeal and pay (or seek waiver of) appeal fee

Step 2: Pay (or seek waiver of) appeal bond

To seek waiver of the appeal bond, you must file a motion in the trial court within 10 days from entry of the judgment.

Paying or seeking waiver of the appeal bond is the second step by the defendant in appealing an eviction to the Appellate Division.  If you are still in possession of the property when you bring your appeal, you must pay an appeal bond in the trial court.  The appeal bond is money that is held by the court to be paid to the plaintiff if the plaintiff prevails on appeal, or returned to you if your appeal is successful.  An appeal bond may be ordered by the court where you are appealing a judgment for possession to your landlord, G.L. c. 239, § 5, or where you are appealing a judgment for possession to the plaintiff after foreclosure, G.L. c. 239, § 6.

If you cannot afford to pay the appeal bond, you may file a motion in the trial court to waive the bond.  A motion to waive the appeal bond will be allowed if you are indigent and have a non-frivolous defense.  A non-frivolous defense means you have a chance of being successful on appeal. Even if the appeal bond is waived, in most circumstances, the court will order “use and occupancy” payments, which are similar to rent and paid directly to the plaintiff.  In other words, even if the court waives the appeal bond, the court may order you to make use and occupancy payments each month while your appeal is pending.

To seek waiver of the appeal bond, you must file a motion in the trial court within ten days from entry of the judgment.  If the court denies your motion to waive the appeal bond or, if the court waives the bond but you are dissatisfied with the amount of use and occupancy payments ordered by the court, you may seek review of the decision in the Appellate Division, which will be heard separately from the appeal from the judgment. 

To appeal from the court’s decision on your motion for waiver, you must file a request for review in the trial court within six days after receiving notice of the decision of the court on the motion to waive bond, or within the 10-day deadline for filing your notice of appeal, whichever is later.  There is no separate filing fee.  The trial court will send the papers regarding the appeal bond issue to the Appellate Division.  The Appellate Division will schedule a hearing with notice to the parties.  After the hearing, the justices will issue a decision.  Failure to comply with the decision on the appeal bond within five days can result in dismissal of the appeal.  If your summary process appeal is dismissed, an eviction order (execution) may issue for your move out unless the court grants a stay of execution.

Step 3: Select method of appeal

Three different methods of appeal

In addition to filing the notice of appeal and paying the $180 filing fee (first step) and paying any appeal bond (second step), you must select a method of appeal from the judgment.  There are three options: an expedited appeal under Dist./Mun. Cts. R. A. D. A. 8A, an agreed statement of the case under Dist./Mun. Cts. R. A. D. A. 8B, or an appeal on the record of proceedings under Dist./Mun. Cts. R. A. D. A. 8C.  These three methods of appeal are three different ways of presenting the trial court record to the Appellate Division. This flowchart shows the basic steps and deadlines for each method of appeal.

Expedited Appeal

The Expedited Appeal under Dist./Mun. Cts. R. A. D. A. 8A presents a condensed form of trial court record to the Appellate Division and has shorter filing deadlines for the parties.  An Expedited Appeal cannot be used, however, when a transcript of the trial proceedings is necessary for Appellate Division review.

To start an Expedited Appeal, you must file a document with the title, “Expedited Appeal,” in the trial court within 20 days of filing the notice of appeal. You must include a summary of the undisputed facts and as much of the evidence necessary for the Appellate Division to decide the appeal, along with other items: a copy of the notice of appeal, a description of the stage of the proceedings at which the legal issues arose and how they were decided, the text of any memorandum of decision and findings of fact issued by the trial court, legal citations, proof of service upon the parties and trial court of the Expedited Appeal, and a certification that the Expedited Appeal contains all the evidence, facts and other material necessary for consideration of the appeal by the Appellate Division.  You must serve a copy of this Expedited Appeal package on the appellee and on the trial judge within the same 20-day deadline.

If the appellee objects or the trial judge enters an order of termination within 10 days of your filing the Expedited Appeal, the Expedited Appeal is terminated, and you must then use one of the remaining appeal methods under Dist./Mun. Cts. R. A. D. A. 8B or 8C.  If there is no timely objection or termination, you must file 6 additional copies of the Expedited Appeal package and 6 copies of your brief in the court. This filing must be made within 25 days of filing the Expedited Appeal. You must also serve a copy of your brief on the appellee within the same 25-day deadline. The appellee will then have 15 days to file and serve an appellee’s brief. You will then have 10 days to file and serve any reply brief. For information on filing and service during the COVID-19 pandemic, see the Appellate Division guidelines.

60 days after filing the Expedited Appeal, the trial court clerk sends to the Appellate Division the Expedited Appeal and brief copies. The Appellate Division will send you notice of receipt of the appeal and the date of oral argument.

Appeal on Agreed Statement

An appeal on an agreed statement of the case under Dist./Mun. Cts. R. A. D. A. 8B requires that the parties mutually agree on, and the trial judge approve of, how to frame the issues for appeal. To start this method of appeal, the parties must file an “Agreed Statement of the Case” in the trial court.  The Agreed Statement must include: (1) copy of the notice of appeal; (2) statement of how the legal issues arose and were decided by the trial court; and (3) statement of facts needed for a decision by the Appellate Division.

The parties must file the Agreed Statement in the trial court within 30 days from when the appellant filed the notice of appeal, or, if the appellant’s expedited appeal under Dist./Mun. Cts. R. A. D. A. 8A was terminated, within 30 days from the termination date.

The Agreed Statement must be approved by the trial judge before the appeal may proceed. Unless the trial judge enters an order of disapproval within 15 days from when the Agreed Statement was filed, the statement is considered approved.  If the Agreed Statement is approved by the trial judge, the appellant must file 6 additional copies of the Agreed Statement document and 6 copies of its brief in the trial court within 25 days after receiving the notice of approval from the trial court clerk. You must also serve a copy of your brief on the appellee within the same 25-day deadline. The appellee will then have 15 days to file and serve the appellee’s brief.  You will then have 10 days to file and serve any reply brief. For information on filing and service during the COVID-19 pandemic, see the Appellate Division guidelines.

60 days after approval of the Agreed Statement, the trial court clerk sends the Agreed Statement document and brief copies to the Appellate Division.  The Appellate Division will send you notice of receipt of the appeal and the date of oral argument.

Appeal on Record of Proceedings

An appeal on the record of proceedings under Dist./Mun. Cts. R. A. D. A. 8C is an appeal where you may include a transcript of the trial court proceedings for review by the Appellate Division. 

The District Court and Boston Municipal Court have proposed amendments to Rule 8C to recognize the use of a system called For the Record (“FTR”) to electronically record trial proceedings. To obtain a transcript where a proceeding was recorded on FTR, the proposed amendments direct parties to follow Trial Court Administrative Order 19-1: Transcription Procedures for Appellate Review. The following interim guidance is offered to obtain a transcript under the Rule 8C method of appeal.

To start an appeal on the record of proceedings, you must file a document with the title “Appeal on the Record of Proceedings” in the trial court.  This document must include a statement that you plan to proceed under Dist./Mun. Cts. R. A. D. A. 8C and, if a transcript will be necessary, you must attach a copy of your transcript order form.  The appellant must file and serve the Appeal on the Record of Proceedings document within 30 days after filing the notice of appeal, or, if an appeal has been unsuccessfully made under Dist./Mun. Cts. R. A. D. A. 8A or 8B, within 30 days after the end of those proceedings. 

District Court and Boston Municipal Court proceedings are electronically recorded on FTR.  You may listen to the audio recording of your case online by going to the FTR website, creating an account, and paying a $10 fee.  FTR provides answers to frequently asked questions on this process.  To order the transcript of the hearing, you must follow the steps described in Transcription Procedures for Appellate Review, which include submitting a transcript order form provided to you and submitted through the FTR website, filing a copy of the transcript order form with the trial court (as an attachment to your Appeal on the Record of Proceedings document), and serving a copy on the appellee. 

If you are indigent and cannot afford the costs of listening to the audio recording and obtaining transcripts, you may request that the trial court waive these costs by filing in the trial court the form “affidavit of indigency.”  FTR provides additional guidance on cost waivers in its answers to frequently asked questions.

Within 30 days of notice from the trial court that it has received the original transcript, you must file 6 additional copies of the Appeal on the Record of Proceedings document in the trial court. The trial court will then send those 6 copies and the docket entries to the Appellate Division. For information on filing and service during the COVID-19 pandemic, see the Appellate Division guidelines.

When the Appellate Division receives the appeal from the trial court, it will send you notice of receipt of the appeal and a briefing schedule.  Once briefing is finished, the Appellate Division will send the parties notice of the date for oral argument.

Additional Resources for Step 3: Select method of appeal

Step 4: Stay pending appeal

If the defendant has timely filed an appeal from the judgment, the trial court may not issue an execution on the judgment while the defendant’s appeal is pending.  In other words, you cannot be evicted while your appeal from the judgment is pending in most cases.  However, there are exceptions:

  • If you were defaulted and your appeal is from a Rule 60(b) motion for relief from default judgment;
  • If the case involves eviction from public housing for one of the reasons listed in G.L. c. 121B, § 32, including that you or a member of your household unlawfully caused or threatened to cause serious physical harm to another tenant, housing authority employee, or person lawfully on the property.  See § 32 for a full listing.
  • If the trial court grants a motion to issue execution, which can occur if you fail to comply with the terms of the appeal bond or pursue the appeal.

If one of these exceptions applies, a motion to stay execution of judgment must be filed in order to try to prevent an eviction.  Likewise, if you are appealing from any order other than a judgment for possession, your appeal does not stop your eviction unless the trial court or Appellate Division orders a stay.

To obtain a court-ordered stay pending appeal, you must first seek the stay in the trial court.  If the trial court judge denies your motion, you may file a motion for a stay in the Appellate Division. The motion to stay to the Appellate Division should:

  1. describe the type of judgment you want to stay, the name of the judge who entered the judgment, and the date of the judgment;
  2. Include the text of the trial court’s order on your motion to stay and the judge’s reasons for denying the motion;
  3. State any legal issues raised by the motion to stay;
  4. State the relief you request from the Appellate Division;
  5. Include copies of the judgment, notice of appeal, the trial court’s order denying the prior motion for a stay, and any other documents from the trial court record that are relevant to the motion.

To obtain a stay, you must demonstrate to the Appellate Division (1) a likelihood of success on the merits of the appeal; (2) you will suffer irreparable harm if the stay is not granted; and (3) the harm likely to be suffered by you if the stay is denied is greater than the harm to the plaintiff if the stay is allowed.  Your motion will be decided by two Appellate Division justices, typically on the papers submitted and without a hearing.  The filing of a motion to stay does not result in a stay.  A trial court judge or the Appellate Division must enter an order of a stay.

Finally, apart from a stay pending appeal to the Appellate Division, if the trial court has entered a judgment of possession to the plaintiff and the defendant needs more time to move out, the defendant may apply to the trial court for a stay of execution under G.L. c. 239, §§ 9-10, if your tenancy was terminated without cause and not based on a failure to pay rent.  G.L. c. 239, § 9.  In not-for-cause evictions, the trial judge may grant a stay for up to 6 months or up to a year for people who are elderly, blind, or disabled. Stays in for-cause evictions are discretionary with the judge. A judge may require the defendant to make use and occupancy payments to the landlord as a condition of the stay.

Further resources

 

 

For questions to the Clerk's Office

Contact the Clerk’s Office of the District Court Appellate Division at appellatedc@jud.state.ma.us.

Contact the Clerk’s Office of the Boston Municipal Court Appellate Division at appellatebmc@jud.state.ma.us

Last updated on December 18th, 2020. 

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