Landlord's guide to evictions

It is best to try to resolve issues before filing an eviction case in court as the tenant may stop paying rent until a judge tells him or her how much and when they must begin paying again for their continued occupancy of your apartment. This could, and often does, take months to resolve if contested.

In attempting to work with tenants having a hard time financially, or suffering other problems which interfere with their living up to their agreement with you, do not allow the problems to drag out without a fairly quick written resolution. Because Summary Process cases (eviction cases) can take months to resolve, especially if contested, if you allow a nonpayment situation to continue for long without receiving regular payments against the arrearage, you will have lost many months of rent by the time you win an execution (court order for the move out). In the absence of any mandatory rent escrowing requirements, you will likely lose the rent entirely for the intervening months.

Near the end of a lease, you may sometimes begin eviction, if you have substantial ground to believe the tenant is likely to remain in the premises after the termination date in the lease. However, no Execution (court order for move out) can be issued before the termination date in the lease. But, you will have saved time and perhaps the incoming tenancy by having the court's permission before hand to evict a tenant holding over after his or her lease has ended (M.G.L. c. 239, § 1A).

If you want a tenant out of your apartment permanently, the only way to evict the tenant lawfully is by getting an Execution (court order to move out). There are extremely limited circumstances in which you can lock out a tenant. The penalties for unlawfully shutting off the tenant's utilities or for unlawfully barring a tenant access to the apartment without an Execution can be severe, running the gamut from three month's rent, attorney's fees, and injunctions forcing you to put the wronged tenant back in the apartment, and criminal penalties and fines in some instances (M.G.L. c. 186, § 14).

Tenants under lease

If you want to evict a tenant under a lease for a reason other than nonpayment, such as having unauthorized sub-tenants, or property damage, the lease should detail what type of Notice to Quit you must use and when to serve it. If you are evicting the tenant for nonpayment, you must send a 14 day Notice to Quit (M.G.L. c. 186, § 11).

If the tenant pays all monies due, plus costs, interest and your court filing fees by the date their Answer is due in court, the tenant has an absolute right to stop the eviction.

Tenants at will

If you are evicting for a reason other than nonpayment, or for no reason, you must give the tenant a 30 day Notice to Quit. If the eviction is for nonpayment, you must give a 14 day Notice to Quit. If the tenant pays the amount claimed due, plus costs, interest and your court filing fees in 10 days, and if this is only the second Notice to Quit for nonpayment within 12 months, the tenant can stop the eviction. If you do not place notice of this fact in the Notice to Quit, the tenant has a right to stop the eviction by paying the above sums not later than the date his Answer is due in court (M.G.L. c. 186, § 12).

Subsidized tenancies

While eviction of tenants living in subsidized housing is no longer subject to the exclusive authorization of the local housing authority, eviction is still controlled by the specific terms of the lease and by a matrix of Federal and State laws. An attorney should be consulted when evicting a subsidized tenant.

The many types of Notices to Quit vary depending on the type of tenancy sought to be terminated and the rights you wish to reserve to yourself after terminating the tenancy. The rules governing timing and method of service are confusing to the new landlord as well. It is recommended that you should not rely solely on the advice of a constable when sending a Notice to Quit, but rather that you also consult an attorney before you move to evict. Although most constables are knowledgeable as to service, they may not know all of the requirements of terminating tenancies technically required of you in order not to have your case dismissed in court, or to reserve certain rights to you.

When the notice period ends, you or your lawyer must serve a Summary Process Summons and Complaint on the tenant. This officially brings the tenant under the court's power and informs him or her of the trial date, the place of the hearing, the reasons for eviction and how much money, if any, you claim the tenant owes you.

Answer

This is the tenant's written response sent to you in which s/he states why s/he should not be evicted and what, if any, counterclaims for money damages s/he has against you such as violations of the State Sanitary Code, retaliation, or faulty eviction procedures.

Trial

If you cannot reach an agreement with the tenant resolving the reasons for eviction, there will be a trial. At this hearing, the tenant and you or your lawyer present your witnesses and documents and a judge or jury decides if you win or if the tenant wins and how much money, if any, the tenant must pay or how much, if any, you must pay the tenant.

Appeal

Either party may appeal within 10 days of entry of the judgment, if dissatisfied with the outcome of the trial, by filing a Notice of Appeal (M.G.L. c. 239, §§ 3, 5 and M.G.L. c. 231, § 97). But, as a condition of the tenant's appeal, s/he must post an appeal bond in an amount determined by the court. Or, the court may waive the bond if the tenant can show s/he is indigent and has a real defense. If the bond is waived by the court, the tenant must still pay the rent which comes due during the appeal. If the court will not waive the bond, the tenant must pay past due rent and rent accruing as the appeal progresses, if the tenant wants to stay in the apartment during the appeal. The tenant cannot be physically evicted until the appeal has been dismissed or decided. Appeals are fraught with procedural pitfalls and should be undertaken with a knowledgeable attorney.

Execution

The Execution is the court's order requiring the tenant to move from the apartment. After the appeal is decided or dismissed, Execution will be issued, but not before then. The Execution must be used within three months of its issuance or it expires. If you accept the full amount of the rent awarded by the court in a nonpayment case, you effectively waive your right to remove the tenant and you have created a new tenancy.

Physical move out

To physically remove the tenant from your apartment, you must hire a constable and a moving company, if the tenant has refused your request to go. The constable must give the tenant 48 hours notice that s/he is coming with the truck. On the date set, the constable goes to the property, physically removes the tenant and her goods, orders the movers to store them in a storage facility, at your expense initially, and gives the keys to you. That ends the eviction process.

The tenant must now go to the storage company for her property. Because the warehouse has a lien on the property for its unpaid fees, if the tenant does not retrieve the property within six months, the warehouse may sell it. You may sue the tenant for your costs of the eviction (M.G.L. c. 239, § 4).

Stay of execution

If the eviction was a no-fault eviction and if the tenant cannot find a new apartment, s/he may ask the judge for a stay of execution of up to six months, or if s/he is elderly or handicapped, up to one year. If the eviction was for nonpayment, technically, the judge has no power to grant a stay. However, if in a nonpayment case, the tenant's award on his counterclaims was less than the amount of rent awarded to you, the tenant can avoid eviction by paying the difference, with interest and court costs in seven (7) days (M.G.L. c. 239 § 8A).

When the tenant is leaving, you should view the apartment, take pictures and review the Statement of Condition, if any, so as to definitively verify the condition of the apartment on the date of move out. This will establish what was damaged by the tenant during his time in the apartment and should avoid a later problem with security deposit deductions and possible litigation.