Guideline 4:02
The court’s decision to issue an ex parte order to the defendant to vacate the household residence should be based solely upon the plaintiff’s need for such an order as a means of protection from abuse. The defendant’s property interest in the household residence is irrelevant to the question of whether an order to vacate the residence is necessary to protect the plaintiff from abuse.
The court may also order the defendant not only to vacate an apartment, but also to stay away from the entire apartment building or complex, or to stay away from a workplace. Implicit in an order to vacate is that the defendant remains away from the location while the abuse prevention order is in effect.
Commentary
A vacate order requires a defendant “to leave and remain away from a premises.” G.L. c. 209A, § 1. For an ex parte order to vacate, the only relevant issues are (1) whether the plaintiff shows, by a preponderance of the evidence, that there is “a substantial likelihood of immediate danger of abuse,” and (2) whether an order to vacate is needed to protect the plaintiff from that abuse.
The defendant’s property interest in the residence is not relevant to this inquiry. Thus, if the plaintiff and the defendant reside in the same household and there is a substantial likelihood of abuse to the plaintiff, then a vacate order is appropriate, irrespective of whether the defendant is the owner or lessee of the household premises. A defendant who is the owner or lessee of the premises might argue that the plaintiff’s right to occupy the premises as an invitee has terminated and that the plaintiff is a trespasser. This is a separate issue. The defendant may seek relief in other forums, including summary process proceedings, but until the plaintiff voluntarily leaves or leaves by court order, the defendant’s property interest in the household premises is subordinate to the protection afforded by the order to vacate. The defendant remains the owner or lessee, but this does not affect the court’s authority to issue an order to vacate, especially for the brief duration of an ex parte order. This interpretation is consistent with G.L. c. 209A, § 3, which states that “[n]o order shall in any manner affect title to real property.”
Given the impact of a vacate order on the defendant, there is a particular need, when such an order is issued ex parte, to limit its duration to the minimum time consistent with notice to the defendant. Ten court business days is the maximum duration of such orders under the statute and should not be the presumptive or automatic term for scheduling the hearing after notice.
Under G.L. c. 209A, § 3(c), the court may order the defendant to vacate a multiple family dwelling and to stay away from a workplace or school. Both orders require specific notation on the Order.
Unless the parties meet the statutory requirements to be eligible for an abuse prevention order, c. 209A does not apply to landlord-tenant situations. See Guideline 1:00A Subject Matter Jurisdiction; Eligibility for Relief. Chapter 209A should not be used as a substitute for the procedural requirements of summary process. Cf. C.E.R. v. P.C., 91 Mass. App. Ct. 124, 132 (2017) (a judge must carefully evaluate the evidence to ensure that a protection order is not being used “as a short-cut for evicting tenants without following summary process procedures, or for preventing purely economic harm”).
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| Last updated: | October 20, 2025 |
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