Overview of Summary Process for Tenants

Information on tenants' appeals from judgments or orders in summary process cases.

NOTE:  Before proceeding to the table of contents below, you may want to click here for a list of resources for renters, homeowners, and landlords, including information about emergency housing assistance.

Appealing a Judgment of Eviction

If a Housing Court judge orders your eviction, you can appeal the order to the Appeals Court by following the steps below.  This information applies only to an appeal from a judgment of the Housing Court.  The judgment is the order by the Court after trial or motion for summary judgment awarding possession of the premises to the plaintiff.  There may be other Housing Court orders from which you can appeal, but those are discussed in a later section.  Also, the process for appealing from a judgment of the District Court is governed by different rules.

A. Notice of Appeal from Judgment

You must file a notice of appeal in the Housing Court within 10 days of the judgment.

No specific format is required for the notice of appeal.  However, it must include the following information:

• The names of the party or parties appealing; and
• the judgment, order, or parts of the judgment/order being appealed.

Note: Unless the person signing the notice of appeal is an attorney, each party that wishes to appeal must sign the notice of appeal.

The 10-day deadline to file a notice of appeal pauses where a party serves certain post-judgment motions within ten days of entry of the judgment, such as:

• Rule 50(b) - judgment notwithstanding the verdict;

Asks the judge to find in favor of the losing party despite the jury's decision.

• Rule 52(b) - motion to alter or amend a finding;

Asks the court to change its findings or make new findings, and reconsider its judgment based on these findings.

• Rule 59 - motion for a new trial;

Asks for a new trial if there were certain mistakes made in the first trial.

• Rule 59(e) - motion to alter or amend the judgment;

If judgment entered within the past 10 days, asks the court to change that judgment.

• Rule 60(b) - motion for relief from the judgment; and

Does not change the judgment itself, but asks the court for help avoiding the effects of the judgment.

• Motion for reconsideration of the judgment

After the Housing Court enters an order denying the last of any of these motions served within ten days of the judgment, you have ten days to appeal.  The notice of appeal must identify both the order(s) denying the post-judgment motion(s) and the underlying judgment for possession in order for the Appeals Court to consider both decisions.  Any notice of appeal filed before the order is entered denying the motion has no effect.  A new notice of appeal must be filed.

B. Appeal Bond

Along with the notice of appeal, you should also request an appeal bond be set or waived by the Housing Court.  The appeal bond is money that is held by the court that may be paid to the landlord if you lose your appeal.

To request waiver of the bond, you must file in the Housing Court a motion to waive the appeal bond and affidavit of indigency.  If your motion is allowed, you may move forward with your appeal without paying the bond.  However, even if the bond is waived, you may still be required to make "use and occupancy" payments to the landlord or plaintiff.  The court will usually order use and occupancy payments if you are still living in the unit.  These are like rent payments, and are paid to the landlord.  It may be the same amount as your rent or mortgage payment, or it could be a different amount as ordered by the judge based on the condition of the unit or other factors.  Failure to pay the appeal bond where one has been ordered, or to make use and occupancy payments as ordered by the judge, can result in your appeal being dismissed. 

A motion to waive the appeal bond and an affidavit of indigency must show both that:

1. You are indigent,

You are "indigent" if you...

1. 1. 1. receive certain public assistance, or
      2. your income is less than 125% the Federal Poverty Line, or
      3. you can't afford court costs without the chance of risking you or your dependents' access to food, shelter, clothing, and other necessities.
2. You have a non-frivolous defense to eviction

Usually, a defense is "non-frivolous" if it is supported by the evidence in the case or by the law.  In other words, your defense must have a chance of being successful.

Review of an Appeal Bond Decision by Single Justice of the Appeals Court:

If you feel that the Housing Court judge made the wrong decision in ordering payment of an appeal bond or in the amount you must pay for use and occupancy during the pendency of your appeal, you may ask the single justice of the Appeals Court to review the trial court's decision.  You must submit this request for review in the Housing Court within the later of the following dates:

1. Within 6 days of receiving notice of the bond decision, or
2. Within 10 days of the trial court's entry of judgment for possession.

After you make this request, the Housing Court will send the record to the Appeals Court and the appeal will be automatically entered on the single justice docket without fee.  The single justice of the Appeals Court will schedule a hearing in the Appeals Court, review the Housing Court's records and the parties' arguments, and make a final decision. 

Once the decision is made, the parties must do what the single justice orders within 5 days, or the case may be dismissed and you may be evicted immediately.

C. Effect of Notice of Appeal from Judgment: Automatic Stay

Filing a notice of appeal from the judgment almost always stops the eviction process while the case is in the Appeals Court. If you file a timely notice of appeal from the judgment, you can't be evicted during the appeal except in a few exceptional circumstances, such as causing damage to the property or threatening another person on the property.

If one of these exceptions applies, or if you did not file your notice of appeal from the judgment on time, the only way to stop the eviction is to file a motion to stay execution of the judgment. This motion will be detailed below.

Appealing an Order Other Than the Judgment of Eviction

A. Appealing an Order Other than a Judgment

You may appeal from some Housing Court orders other than judgments.  For example, you may appeal from an order to issue an execution following an agreement for judgment, an order denying your request to vacate a default judgment, or from a Housing Court judge's order denying your request to stop a pending eviction because you have no place to go.  Please note that no appeal bond is required to file these appeals, but the filing of the notice of appeal, other than a notice of appeal from the judgment, will not stop the eviction unless a judge orders a stay.

B. Filing a Notice of Appeal

You must file a notice of appeal to appeal from an order other than a judgment.  You have up to 30 days to file a notice of appeal from an order other than the judgment for possession, which must be filed within 10 days.

No specific format is required for the notice of appeal.  However, it must include the following information:

• The names of the party or parties appealing; and
• the judgment, order, or parts of the judgment/order being appealed.

Note: Unless the person signing the notice of appeal is an attorney, each party that wishes to appeal must sign the notice of appeal.

C. Effect of Filing a Notice of Appeal, Other than from a Judgment

An appeal from any order other than the judgment for possession does not stop your eviction unless a judge orders a stay.  An Appeals Court justice may only order a stay if you have a pending appeal. 

The Appellate Process

A. Assembling the Record and Entering the Appeal

At the same time you file a notice of appeal, if you desire a transcript, you must order an audio recording of the trial court proceedings to have them made into transcripts. Ask the Housing Court about transcription services.

When the transcripts are ready, the transcriber will send you a copy and file a copy directly with the Housing Court.  The Housing Court will organize your file and deem it ready for appeal.  This is called assembling the record.   The Housing Court will notify you and the Appeals Court when your record has been assembled.  The Housing Court does not transmit your file to the Appeals Court.

After you get the notice of assembly, you have 14 days to pay the Appeals Court entry fee (or file a motion to waive the fee along with an affidavit of indigency).  Payment of this fee will let the Appeals Court "enter" the case onto its docket.

For more information about representing yourself in an appeal before the Appeals Court, please visit https://www.mass.gov/info-details/self-representation-in-the-appeals-court.

B. Your obligations in your appeal

After your appeal has been entered on the Appeals Court docket, you have 14 days to file a docketing statement, which is a form prepared by the Appeals Court requesting certain information about your case.  Further instructions and the form can be found at: https://www.mass.gov/appeals-court-rules/appeals-court-rule-100-docketing-statement-for-all-appeals-civil-and-criminal.

As the "appellant," you must file your brief and record appendix within 40 days of entering your appeal.  Your brief is a document where you explain the facts of your case, what happened in the Housing Court, and make your arguments regarding why the Housing Court judgment or order was wrong.  You must create an appendix which contains copies of the relevant documents from your Housing Court file so that the Appeals Court can review the Housing Court's decision.

You are required to include certain items in your brief and in your appendix.  Additionally, the rules require you to format the brief and appendix in a certain way.  More information on these requirements can be found at: https://www.mass.gov/info-details/appeals-court-briefs.

The plaintiff or landlord (the "appellee") has 30 days after you file your brief and appendix in which to file a brief.  After the plaintiff or landlord files a brief, you have 14 days to file a reply brief.  You are not required to file a reply brief.  No other briefs are allowed.

C. Deciding Your Appeal

After the time for filing briefs has expired, your case will be referred to a panel of three justices who will decide your appeal.  The justices may or may not hold oral argument, which is an opportunity for the parties to make a presentation of their cases in a court hearing and to answer questions that the justices might ask.  Oral argument is not a trial, and no one is allowed to testify or present evidence.  The justices will issue a written decision with an explanation for their decision.

Stopping an Eviction

A. Motion to Stay Execution

If the Housing Court orders eviction, you may be able to temporarily stop the eviction by asking for a stay.

To request a stay, the first step is to file a motion to stay in the Housing Court.  The Housing Court judge may stay your eviction because of a pending appeal or to allow you additional time to find new housing.

If the Housing Court denies your motion to stay, you may file a motion to stay with the single justice of the Appeals Court.  You must have a pending appeal to ask for a stay from the Appeals Court.

B. Motion to Stay Filed in the Housing Court

The procedures for requesting a stay may vary among the various Housing Courts.  You should contact the clerk's office of the Housing Court where your case was heard to determine the appropriate steps for seeking a stay in the Housing Court.

C. Motion to Stay Filed in the Appeals Court

If the Housing Court has denied your motion to stay and you have a pending appeal, you may request a stay of your eviction from the Appeals Court.

For help when preparing and filing a motion to stay an eviction, please visit https://apps.suffolklitlab.org/start/appeal_stay_eviction/.

D. Contents of a Motion to Stay Filed in the Appeals Court

A Motion to Stay should:

1. State what you would like the single justice to do (stay the eviction);
2. Describe the type of judgment you want to stay, name the judge who entered the judgment, and list the date of the judgment;
3. Include the text of the trial court's order on your motion to stay and the judge's reasons for denying the motion;
   1. or, if no motion was filed in the trial court, explain why filing a motion in the trial court was not possible;
4. State any legal issues raised by the motion to stay; and
5. Include copies of the judgment, the notice of appeal, and the trial court's order (if any) denying a prior motion to stay, as well as any relevant Housing Court documents.

To succeed on your motion, you must show:

1. A likelihood of success on the merits of the appeal;

In other words: there must be a chance you could win your appeal and you need to explain why that is.

2. You will suffer irreparable harm if the stay is not granted; and

In other words: you must face a harm that can't be fixed by other means if the court does not grant your motion.

3. The harm likely to be suffered by you if the stay is denied is greater than the harm to the plaintiff or landlord if the stay is allowed.

In other words: you would face more harm from the eviction going forward than the landlord would face if the court stayed the eviction while your appeal is decided.

PLEASE NOTE: The single justice will likely decide the motion based only on the written materials that you submit, without holding a hearing, so it is important to include all of the relevant information that you think the Justice should consider when you file your motion.

E. Costs of a Single Justice Motion

Filing a single justice motion costs $315; however, if you are indigent, this fee can be waived by filing a motion to waive the filing fee, along with an affidavit of indigency.  

F. Further Resources:

Challenging a Court-Ordered Eviction, Mass Legal Help, available at: https://www.masslegalhelp.org/housing/lt1-chapter-12-challenging-court-ordered-eviction

Eviction Time Line, Mass Legal Help, available at: https://www.masslegalhelp.org/housing/lt1-chapter-12-eviction-timeline

Eviction for Tenants, Mass.gov, available at: https://www.mass.gov/eviction-for-tenants

Housing Appeals Guide, Mass.gov, available at: https://www.mass.gov/guides/housing-appeals-guide

 

Civil Appeals Clinic:

Wednesdays, 12:00 p.m. - 4:00 p.m.

For more information, please call the Eastern Region Legal Intake Helpline at [phone].

Last updated:	October 16, 2020