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Summary Process Appeals: Frequently Asked Questions (FAQs) by Tenants

For clarity, these frequently asked questions and answers refer to the parties as landlords and tenants; however, the information herein also applies to purchasers, foreclosing institutions, and holdover owners.

Table of Contents

Tenants' Summary Process FAQs

Q.  I lost my eviction trial, what do I do now?

You can file a notice of appeal if you believe that the Housing Court judge or jury made an error in deciding that your landlord is entitled to possession.  The notice of appeal must be filed in the Housing Court within 10 days after the judgment for possession enters on the Housing Court docket.  At the same time, you should begin the process of obtaining transcripts of your trial, which will be needed for your appeal.  You should also move to set or waive the required appeal bond.

Q.  The Housing Court judge ordered summary judgment for my landlord, what do I do now?

You can file a notice of appeal if you believe that the Housing Court judge made an error in ordering summary judgment for the landlord.  The notice of appeal must be filed in the Housing Court within 10 days of entry of the summary judgment.  At the same time, you should begin the process of obtaining transcripts of your summary judgment hearing, which may be needed for your appeal.  You should also move to set or waive the required appeal bond.

Q.  The Housing Court has entered a judgment for the landlord.  If I file a motion for reconsideration of the judgment or a motion for a new trial, how does that affect my right to appeal?

The time for filing a notice of appeal from a judgment awarding possession to the landlord may be extended if, within 10 days of the judgment entering on the Housing Court Docket, you serve on the landlord (1) a motion for reconsideration of the judgment, or (2) a motion for new trial.   If you serve either of these motions on the landlord within 10 days of the judgment, the time for filing a notice of appeal is extended to 10 days after entry of the order on your motion.  If you file a notice of appeal before your motion is ruled upon, you must file another notice of appeal after your motion is denied.

Q.  Can I be evicted while my appeal is pending?

In most cases, you cannot be evicted after you have filed a timely notice of appeal and while your appeal from the judgment is pending.  There is an automatic stay of the eviction.  There are exceptions in certain public housing cases.  Also, it is important to note that your eviction is not automatically stopped for any type of appeal other than one from a judgment awarding possession to the landlord.  In all other appeals, you must seek an order from a judge to stop (or "stay") your eviction.

Q.  What is the process for ordering transcripts of my trial?

The process for ordering transcripts is set forth in Rule 8 of the Massachusetts Rules of Appellate Procedure and Trial Court Administrative Order 19-1.  You may ask in the Housing Court to waive the court fee for accessing the audio recording of the proceedings, and for the state to pay the cost of turning the audio recording into a written transcript.  For specific information about the transcript process or about waiving the costs in your case, please contact the Housing Court where your case was heard.

Q.  What is an appeal bond?

You may be required to pay money to the Housing Court in order to appeal from the judgment awarding possession to the landlord.  The Housing Court holds that money to pay your landlord if you lose your appeal.  The appeal bond is usually for the full amount due to the landlord according to the judgment, including any assessed court costs.  In addition, you may be required to make periodic payments to the landlord or to the Housing Court while your appeal is pending.  These periodic payments are called "use and occupancy" payments, and could be equal to, greater than, or less than the amount of monthly rent you would have paid under the prior lease.  You may ask the Housing Court to waive this requirement.  Your appeal from the judgment of possession cannot proceed until the appeal bond is resolved.

Q.  How do I get my appeal bond waived?

You must file a motion in the Housing Court to waive the appeal bond at the same time that you file your notice of appeal in order to get your appeal bond waived.  Your motion should be accompanied by an affidavit of indigency.  The Housing Court judge will waive your appeal bond if you are indigent AND you have a non-frivolous defense.  A person is indigent if they receive certain need-based government benefits, earn less than a specific amount of money each year, or if they would be unable to pay the appeal bond without depriving themselves or their dependents of the necessities of life.  A defense is non-frivolous if there is a chance that the tenant will win their appeal.  Even if the judge waives the appeal bond, you may still be required to pay use and occupancy fees to your landlord or to the Housing Court.  In most cases, you must make those payments monthly in the amount ordered by the Housing Court judge.  The use and occupancy payments may be the same amount as your rent, or the judge may order a different amount.

Q.  The Housing Court judge denied my motion to waive the bond or ordered periodic payments that are too high, what do I do now?

You must pay the appeal bond if the Housing Court judge denies your motion to waive and you are able to pay.  If you believe that the appeal bond should have been waived or that the amount of use and occupancy payments is too high, you may request review of these decisions by a single justice of the Appeals Court.  If you do not pay the appeal bond or file a request in the Housing Court for review by a single justice of the Appeals Court within 6 days of receiving notice of the Housing Court judge's appeal bond order, the Housing Court may issue an execution, which is a document authorizing the sheriff or a constable to remove you and your belongings from your home.

Q.  How do I request review of the appeal bond order by a single justice of the Appeals Court?

The request for review of the appeal bond order by a single justice of the Appeals Court must be in writing.  The written request for review must be filed in the Housing Court within 6 days of receiving notice of the Housing Court judge's appeal bond order. 

Q.  I filed a request for single justice review of my appeal bond, what happens now?

After you file your timely request for single justice review of the bond order, the Housing Court will send the relevant documents from the case to the Appeals Court.  When the Appeals Court receives the package from the Housing Court, the Appeals Court will schedule a hearing.

Q.  Do I need to file anything at the Appeals Court before my hearing on my appeal bond?

You are not required to submit in the Appeals Court a brief or any other filing before your hearing before the single justice.   

Q.  I cannot come to the John Adams Courthouse in Boston at the date and time scheduled for my appeal bond hearing, what should I do?

If you cannot make it to your hearing, you may file a written motion in the Appeals Court clerk's office, to reschedule your hearing to a different date or time.

Q.  What happens at my single justice hearing on my appeal bond?

The hearing will take place in one of the two courtrooms located on the third floor of the John Adams Courthouse in Boston, or the court may order that the hearing be held by telephone or video conference.   If the hearing is at the courthouse, you will sit at the appellant's table, while the landlord or his or her attorney will sit at the appellee's table.  The session will begin when the court officer calls the court to order.  The single justice will then take the bench.  The single justice will announce the name of the case and may provide some further instructions about what he or she expects during the hearing.  In most cases, you will go to the podium first.  The single justice may direct the clerk to run a clock that sets the amount of time you have to present your case.  The clock on the podium will show how much time you have left.  You do not need to use all of your allotted time, but you may not continue after your time expires unless the justice allows you to do so.  The justice will give you a chance to present your case and may also ask you questions.  After you have presented your side, the justice will hear the landlord's arguments.

Q.  What does the single justice consider when he or she reviews the appeal bond order?

The single justice will consider the same factors as the Housing Court judge did.   If you are arguing that your appeal bond should have been waived, the single justice will consider whether you are indigent AND whether you have a non-frivolous defense.  The single justice will also consider your argument that the use and occupancy payments are too high.

Q.  The single justice affirmed the appeal bond order.  What do I do now?

To proceed on your appeal from the judgment, and to continue to benefit from the automatic stay on your eviction, you must pay the appeal bond in the Housing Court within 5 days after receiving notice of the single justice's order.  If you do not comply with the single justice's order within 5 days, your appeal may be dismissed, and you may be evicted.  You cannot appeal the single justice's appeal bond order.  However, if your appeal is dismissed for failure to pay the bond, you may appeal that dismissal and a panel of three Appeals Court justices will consider the appeal bond.  It is important to note that the automatic stay will not prevent you from being evicted during an appeal from the dismissal for failure to pay the appeal bond. 

Q.  The single justice waived the bond.  What happens now?

If the single justice waives the bond and you make your required use and occupancy payments, your appeal from the underlying judgment for the landlord will proceed to a panel of three Appeals Court justices.  After receiving the notice of the single justice's order, you should contact the clerk's office at the Housing Court that heard your case to determine what steps you need to take to prepare your case for assembly of the record for your appeal.

Q.  I received notice from the Housing Court that my appeal has been assembled, what do I do now?

Within 14 days of receiving the notice of assembly of the record, you must enter your appeal on the Appeals Court docket by (1) paying the $300 filing fee, or (2) filing a motion to waive that fee if you are indigent.  You must file a motion to waive the filing fee and an affidavit of indigency in the Appeals Court clerk's office, even if you have already filed one in the Housing Court and were found indigent.

Q.  I have entered my appeal on the Appeals Court docket.  What do I do next?

Within 14 days of entering your appeal on the Appeals Court docket, you must file a civil docketing statement.  The civil docketing statement is a form where you provide basic information about your appeal.  The form and instructions are available online here.

Q.  I have filed my docketing statement.  What do I do next?

You must file your brief and record appendix within 40 days of the date that you entered your appeal.  Additional information about what to include in your brief and appendix, and proper formatting, is available online here.

Q.  I need additional time to prepare my brief and record appendix.  What should I do?

You may file a written motion in the Appeals Court clerk's office seeking additional time to file your brief and record appendix.  Your motion should include the specific date you propose to file your brief and appendix.  Your motion must also explain why you need additional time.

Q.  I have filed my brief and record appendix.  What happens now?

The landlord has 30 days to file a brief.  After the landlord's brief is filed, the case is placed in ready status, which means that it will be assigned to a panel of three justices who will decide your appeal in the next few months. 

Q.  I have read the landlord's brief and want to reply to something that the landlord wrote.  How do I do this?

You are allowed to file a reply brief, which is formatted similarly to your primary brief.   However, the reply brief must be shorter and may only respond to the landlord's brief.  You may not submit any additional record appendix materials without permission from the court.  Additional information about writing and filing your reply brief can be found here.  You are not required to file a reply brief.  No other briefs are allowed.

Q.  I have received notice seeking my unavailability for oral argument on certain dates.  What happens now?

This means that your case will likely be scheduled for oral argument.  Please follow the instructions in the notice for responding to the court.  The court will attempt to schedule your case for oral argument based on your available dates and the landlord's available dates.  If the court is unable to schedule your oral argument on any of the dates for that month, you may receive a second notice of unavailability for dates in the following month.

Q.  I have been given a date for oral argument.  What should I expect at oral argument?

Oral argument will likely take place on the third floor of the John Adams Courthouse in Boston, in one of the Appeals Court's two courtrooms, or the court may order it to be held by telephone or video conference.  The Appeals Court sometimes hears cases in other locations, however, so be sure to check your notice to confirm the location.  If the argument is held at the courthouse, you must check in with the court officer when you arrive in the courtroom.  The court officer will give you a form to complete.  When your case is called, you will be directed to the appellant's table.  You will go first in presenting your case.  You should stand at the podium and speak clearly into the microphone.  Additional information regarding oral argument is available here.

Q.  I have received a notice that my case is under consideration by a panel.  What does that mean?

A notice that your case is under consideration by a panel means that your case is likely to be decided without oral argument.  No party has a right to an oral argument.  The three names in parenthesis on the notice are the three justices who will decide your appeal.  After reviewing the file, they will begin to work on a decision on your appeal.

Q.  The panel of justices has issued a decision in the landlord's favor.  What happens now?

The decision is sent to the parties immediately, but is not sent to the Housing Court for 28 days.  The judgment or order is not considered final until the decision is sent to the Housing Court.  Within 14 days of the decision, you may file a motion for reconsideration or modification of the decision.  Additional information about a motion for reconsideration or modification can be found here.  Within 21 days of the decision, you may also ask the Supreme Judicial Court to review the Appeals Court's decision by filing a document called an application for further appellate review.  Additional information about filing an application for further appellate review can be found here.  If your motion for reconsideration and/or application for further appellate review are denied, the Appeals Court will send the decision to the Housing Court and the decision will become final.  If your appeal is from a judgment awarding possession to the landlord, the Housing Court may then issue an execution, which is a document that authorizes the sheriff or constable to evict you.

Q.  The Housing Court entered a default judgment against me.  How do I challenge that default judgment?

You may not directly appeal from a default judgment and must challenge a default judgment in the Housing Court, by filing a motion to vacate the default judgement.  If the Housing Court judge denies your motion, you may appeal the order denying your motion to the Appeals Court by filing a notice of appeal within thirty days of the judge's order.  Because this is not a direct appeal from the judgment, your eviction is not automatically stayed pending this type of appeal.  You may seek an order staying your eviction.  The motion to stay should be filed in the Housing Court.  You should not be required to post an appeal bond in order to appeal from the denial of a motion to vacate a default judgment, but the Housing Court judge may require you to pay the landlord an amount of money as a condition if you are granted a stay of your eviction.

Q.  I entered into an agreement for judgment, and the landlord claims that I violated the agreement.  The Housing Court judge allowed the landlord's motion to issue an execution (eviction order).  How do I challenge that order?

You may seek review in the Appeals Court of an order allowing the landlord's motion to issue the execution by filing a notice of appeal in the Housing Court within 30 days of the entry of the order.  Because this is not a direct appeal from the judgment, however, your eviction is not automatically stayed pending this type of appeal.  You may seek an order staying your eviction by filing a motion to stay in the Housing Court.  You should not be required to post an appeal bond in order to appeal from an execution, but the Housing Court judge may require you to pay the landlord an amount of money as a condition if you are granted a stay of your eviction.

Q.  The time for appealing from the judgment has passed, and I have not been able to find new housing.  Can I ask for additional time to find housing?

You may ask the Housing Court judge to temporarily stop your eviction if you have been unable to find new housing.  The Housing Court judge is not required to give you additional time, and if he or she does, the additional time may come with conditions, including that you pay money to the landlord.  The procedures for asking the Housing Court judge may vary from Housing Court to Housing Court.  You should contact the Housing Court where your case was heard to determine the appropriate procedures.  A single justice of the Appeals Court does not have the authority to grant you additional time without a pending appeal.  However, if the Housing Court judge denies your motion for additional time, you may appeal that decision.  If you appeal that decision, you may seek a stay pending your appeal from a single justice of the Appeals Court.

Q.  I agreed to be out of my home by a certain date, but I have not been able to find new housing.  Can I ask for additional time to find housing?

You may ask the Housing Court judge to temporarily stop your eviction if you have been unable to find new housing.  The Housing Court judge is not required to give you additional time, and if he or she does, the additional time may come with conditions, including that you pay money to the landlord.  The procedures for asking the Housing Court judge may vary from Housing Court to Housing Court.  You should contact the Housing Court where your case was heard to determine the appropriate procedures.  A single justice of the Appeals Court does not have the authority to grant you additional time without a pending appeal.  However, if the Housing Court judge denies your motion for additional time, you may appeal that decision.  If you appeal that decision, you may seek a stay pending your appeal from a single justice of the Appeals Court.

Q.  I have filed a notice of appeal from the denial of my motion to vacate the default judgment against me.  How do I obtain a stay of my eviction while my appeal is being decided?

There is no automatic stay pending this type of appeal.  The first step is to file a motion in the Housing Court for a stay pending appeal.  In that motion, you must demonstrate that you are likely to succeed in your appeal, that you will suffer "irreparable harm" if the judge does not grant a stay (damage that cannot be undone), that the harm to the landlord if the stay is granted is not greater than the harm to you if the stay is not granted, and, in some circumstances, that the stay does not harm the public interest.  If the Housing Court judge allows your motion, he or she may impose conditions on the stay, including making payments to your landlord while your appeal is pending.  If the Housing Court judge denies your motion, you may file a motion in the Appeals Court seeking a stay of the eviction from a single justice.  Your motion to the single justice must demonstrate the same three or four factors as your motion in the Housing Court: (1) that you are likely to succeed in your appeal; (2) that you will suffer irreparable harm if the judge does not grant a stay; (3) that the harm to the landlord if the stay is granted is not greater than the harm to you if the stay is not granted; and, in some circumstances, (4) that the stay does not harm the public interest.

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

Q.  I have filed a notice of appeal from the allowance of the landlord's motion to issue the execution (eviction order).  How do I obtain a stay of my eviction while my appeal is being decided?

There is no automatic stay pending this type of appeal.  The first step is to file a motion in the Housing Court for a stay pending appeal.  In that motion, you must demonstrate that (1) you are likely to succeed in your appeal, (2) you will suffer irreparable harm if the judge does not grant a stay, (3) the harm to the landlord if the stay is granted is not greater than the harm to you if the stay is not granted, and, in some circumstances, (4) the stay does not harm the public interest.  If the Housing Court judge allows your motion, the judge may impose conditions on the stay, including making payments to your landlord while your appeal is pending.   If the Housing Court judge denies your motion, you may file a motion in the Appeals Court seeking a stay from a single justice.  Your motion to the single justice must demonstrate the same three or four factors as your motion in the Housing Court: (1) that you are likely to succeed in your appeal; (2) that you will suffer irreparable harm if the judge does not grant a stay; (3) that the harm to the landlord if the stay is granted is not greater than the harm to you if the stay is not granted; and, in some circumstances, (4) that the stay does not harm the public interest.

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

Q.  The Housing Court judge denied my motion for additional time to find new housing, and I filed a notice of appeal from that denial.  How do I obtain a stay of my eviction while my appeal is being decided?

If you have filed a notice of appeal from the Housing Court judge's order denying your motion for additional time to find new housing, you may seek a stay pending that appeal from a single justice of the Appeals Court.  Your motion to the single justice must demonstrate the following factors: (1) that you are likely to succeed in your appeal; (2) that you will suffer irreparable harm if the judge does not grant a stay; (3) that the harm to the landlord if the stay is granted is not greater than the harm to you if the stay is not granted; and, in some circumstances, (4) that the stay does not harm the public interest.

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

Q.  I am a tenant in public housing.  Because of the nature of my eviction, I am not entitled to an automatic stay, but I have appealed from the eviction judgment.  How do I obtain a stay of my eviction while my appeal is being decided?

If your eviction falls within this category, you may seek a stay pending appeal by filing a motion in the Housing Court for a stay pending appeal.  In that motion, you must demonstrate that (1) you are likely to succeed in your appeal, (2) that you will suffer irreparable harm if the judge does not grant a stay, (3) that the harm to the landlord if the stay is granted is not greater than the harm to you if the stay is not granted, and (4) that the stay does not harm the public interest.  If the Housing Court judge allows your motion, he or she may impose conditions on the stay, including making payments to your landlord while your appeal is pending.   If the Housing Court judge denies your motion, you may file a motion seeking a stay from a single justice of the Appeals Court.  Your motion to the single justice must be filed in the Appeals Court clerk's office and must demonstrate the same four factors as your motion in the Housing Court: (1) that you are likely to succeed in your appeal; (2) that you will suffer irreparable harm if the judge does not grant a stay; (3) that the harm to the landlord if the stay is granted is not greater than the harm to you if the stay is not granted; and (4) that the stay does not harm the public interest.

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

Q.  The Housing Court judge has denied my motion for a stay of eviction pending appeal.  How do I ask a single justice of the Appeals Court for a stay pending appeal?

You must prepare a motion for the single justice which contains the information required by Appeals Court Rule 6.0, which can be found here.  In addition to the motion and supporting materials described in Appeals Court Rule 6.0, you must pay the $315 filing fee or, if you are indigent, file a motion to waive the fee and an affidavit of indigency.  You must file the motion and affidavit in the Appeals Court even if you were already found to be indigent in the Housing Court.  You may file the motion for a stay by electronic filing at efilema.com, by mail, or in person.

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

Q.  What information and documents must I include in my motion for a stay pending appeal?

Your motion to the Appeals Court should include: (1) a request for a stay, which shall identify the order that you want to have stayed by date and by the name of the Housing Court judge who issued it; (2) the text of the Housing Court order denying your motion to stay; (3) a statement of the issue(s) of law raised by your motion; (4) a statement of what you want the single justice to order; and (5) an addendum containing copies of the judgment in your case, your notice of appeal, and the Housing Court order denying your motion to stay.

You should also file a memorandum of law in support of your motion.  In the memorandum, you should explain why you are likely to succeed on the merits of your appeal.  In other words, describe why the Housing Court judge should have made the decision in you favor.  You should also explain the "irreparable harm" that you will suffer if the stay is not granted, which means damage that cannot be undone, and any harm to the landlord if the stay is granted.  In some instances, you should also discuss the lack of harm to the public interest if the stay is granted, such as if your landlord is a public housing authority.

Finally, you should include a record appendix which consist of copies of the relevant documents from your Housing Court proceedings. 

If your case is an emergency, the single justice may consider your motion even if you are unable to provide all of the information and documents described above.  However, it is important to note that motions to stay evictions are often decided without a court hearing, so everything that you want the single justice to consider must be included in your written motion.

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

Q.  The single justice denied my motion for a stay.  May I appeal the decision?

You may file a notice of appeal from the single justice's order.  The appeal will proceed to a panel of the Appeals Court, which consists of three justices.  An appeal from the single justice's order does not stop your eviction, however, and such an appeal can take several month to be decided under normal circumstances.  You may ask that your appeal be considered more quickly by filing a motion to expedite your appeal.  The motion should be filed in the Appeals Court clerk's office.  No relief is immediately available in the Appeals Court if your motion to expedite your appeal is denied.  Contact the office of the clerk of the Supreme Judicial Court for Suffolk County to determine if that court has additional procedures for requesting a stay of your eviction.  Additional information and contact information for that office may be found here.

Last updated: October 16, 2020
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