Housing Appeals Guide

Appealing a Summary Process Case

Summary Process is a proceeding where a plaintiff (usually a landlord) asserts a right to remove a defendant (usually a tenant) from property. This page lays out how to appeal from a summary process case, with special focus on how the process is different from other types of appeals. Summary Process cases can be heard in Housing Court, Superior Court, District Court, or Boston Municipal Court. Appeals from either the Housing Court or the Superior Court go to the Appeals Court. This guide refers only to appeals that go to the Appeals Court and uses the term "trial court" to refer to either the Superior Court or the Housing Court that the case occurred in.

This guide explains the process of getting an appeal from the trial court into the Appeals Court. Once it is entered in the Appeals Court, it proceeds similarly to all other appeals. If you are looking to stop an imminent eviction, skip down to Staying Execution on a Judgment, below.

Filing the Notice of Appeal

After the clerk’s office enters judgment on the docket in a summary process case, any party who is dissatisfied with the judgment may file a document called the "notice of appeal". The notice of appeal must be filed in the trial court within 10 days of entry of judgment. Neither the trial court nor the Appeals Court may extend this deadline. The "entry of judgment" means the date the judgment was entered on the docket, not the date of the order or the date notice was sent. The notice of appeal must specify the party or parties appealing, and the judgment, order, or part(s) thereof that is being appealed.

The 10-day deadline resets if certain post-judgment motions are filed within the 10-day period after entry of the judgment. If any of these motions are filed and served within 10 days of entry of the judgment, the time to file a notice of appeal restarts when the motion is decided. Second and subsequent post-judgment motions do not result in additional extensions of the time period to file a notice of appeal. The post-judgment motions that, if timely filed, reset the time to file a notice of appeal are:

  1. Rule 50(b) (judgment notwithstanding verdict)
  2. Rule 52(b) (alter or amend findings)
  3. Rule 59 (new trial)
  4. Rule 59(e) (alter or amend judgment)
  5. Rule 60 (relief from judgment)

There is no specific form for a notice of appeal, so long as it is timely and contains the relevant information. Along with the notice of appeal, an appealing party must either deposit the appeal bond or file a motion to waive the appeal bond. Additionally, the appealing party must request audio recordings of the hearing so that they can be transcribed.

Automatic Stay Pending Appeal

No execution of judgment may issue while a timely-filed appeal from the judgment is pending in most instances.  This means that a defendant cannot be evicted during the pendency of the appeal from the judgment in those cases.  However, there are exceptions:

  • If the defendant was defaulted and the appeal was from a 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.

If there is reason to believe that the tenant or a member of the tenant's household has:

(1) unlawfully caused serious physical harm to another tenant or employee of the housing authority, or any other person lawfully on the premises of the housing authority, or

(2) threatened to seriously physically harm another tenant or housing authority employee, or any person lawfully on the premises of the housing authority, or

(3) destroyed, vandalized or stolen property of a tenant or the housing authority or any person lawfully on the premises of the housing authority which thereby creates or maintains a serious threat to the health or safety of a tenant or employee of the housing authority or any person lawfully on the premises of the housing authority, or

(4) on or adjacent to housing property, possessed, carried, or illegally kept a weapon in violation of section ten of chapter two hundred and sixty-nine or possessed or used an explosive or incendiary device or has violated any other provisions of section one hundred and one, or has violated any other provision of sections one hundred and one, one hundred and two, one hundred and two A or one hundred and two B of chapter two hundred and sixty-six, or

(5) on or adjacent to housing authority property, unlawfully possessed, sold, or possessed with intent to distribute a controlled substance as defined in classes A, B, or C of section thirty-one of chapter ninety-four C, or

(6) engaged in other criminal conduct which seriously threatened or endangered the health or safety of another tenant, an employee of the housing authority or any other person lawfully on the premises of the housing authority, or

(7) for any of the reasons set forth in section nineteen of chapter one hundred and thirty-nine, or

(8) a guest of a tenant or of a household member engages in any such behavior listed in clauses (1) to (7), inclusive, where the tenant knew or should have known that there was a reasonable possibility that the guest would engage in misconduct.

  • If the trial court grants a motion to issue execution, which can occur if the defendant fails to timely 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. See Staying Execution on a Judgment, below.

Appeal Bond

In order to appeal a summary process case, an appealing defendant must either pay an appeal bond or file a motion to waive the appeal bond. 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 the defendant if the appeal is successful. A motion to waive the appeal bond will be allowed if the party is indigent and has a non-frivolous defense (a frivolous defense is one which "would not have a prayer of a chance" such as a defense that is unsupported by any evidence). 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. Failure to pay any appeal bond or use and occupancy payments ordered can result in dismissal of the appeal.

A defendant aggrieved by a decision of the trial court on the appeal bond may seek review by a single justice of the Appeals Court. This review is separate from the appeal of the underlying case, and is also started by filing a (separate) request for review. This request for review must be filed either within six days of receiving notice of the decision on the appeal bond, or within ten days of the date the trial court entered the judgment for possession on the docket  (whichever is later). Then, the trial court will make copies of the documents limited to the appeal bond issue, and transmit the package  to the single justice session of the Appeals Court.  This step is known as the trial court sending notice of its assembly of the record for the appeal.  Appeal bond assemblies are entered automatically, with no fee required, and the single justice will schedule a hearing with notice to the parties. After the hearing, the single justice will review the lower court's assembled record and arguments of the parties, and then issue a decision, which is final. Failure of a party to comply with the decision on the appeal bond within five days can result in dismissal of the appeal.  The dismissal of the summary process appeal subjects the tenant to immediate eviction unless a stay of the underlying judgment is entered.

Assembling the Record and Docketing the Appeal

At the same time as filing the notice of appeal, the appealing party must order the audio recording of the trial court proceedings in order to have them transcribed. See our transcript request guide for details.

After the transcripts are complete and filed with the trial court, all parties will receive from the trial court a "notice of assembly of the record." The appealing party has ten days from receipt of the notice to docket the appeal in the Appeals Court. After docketing the appeal, the case proceeds as any other case in the Appeals Court. See our guide to appellate briefs for the next steps.

Staying Execution on a Judgment

In most cases, if the defendant files a timely notice of appeal from the judgement for possession, the trial court will not issue an execution on the judgment.  If, however, the defendant appeals from an order other than the judgment for possession or in other limited circumstances, the trial court may issue an execution, and the plaintiff may levy on that execution unless a court grants a stay. (A levy is the taking or seizing of property pursuant to a writ of execution on a judgment.)

To obtain a court-ordered stay, the defendant must first seek the stay in the trial court unless filing a motion in the trial court is not practicable.  The trial court is almost always the proper location to file the motion first.  If filing the motion first in the trial court is impracticable or if the trial court judge denies the defendant's motion, the defendant may file a motion for a stay from a single justice of the Appeals Court.  The motion to the single justice is governed by Mass. R. App. P. 6 and an Appeals Court Standing Order governing motions to stay pursuant to M.R.A.P. 6.

The motion to stay should include: (1) a statement of the nature of the judgment for which the stay is sought, the name of the judge who entered the judgement, and the date of the judgment; (2) the text of the order and rationale of the trial court judge denying the motion for stay or, if no such motion was filed in the trial court, a showing why filing the motion in the trial court was not practicable; (3) a statement of the issues of law raised by the motion; (4) a statement of the specific relief requested; and (5) an addendum containing copies of the judgment, notice of appeal, and the trial court's order denying the prior motion for a stay.

The motion should be supported by a memorandum of law or legal argument, and a record appendix.  The record appendix should contain any documents from the Housing Court record that are relevant to the motion and have not already been included in the addendum to the motion.

To obtain a stay, the motion to stay, memorandum, and record appendix must demonstrate (1) a likelihood of success on the merits of the appeal; (2) that the moving party will suffer irreparable harm if the stay is not granted; and (3) the harm likely to be suffered by the moving party if the stay is denied is greater than the harm to the non-moving party if the stay is allowed.

The motion to the single justice of the Appeals Court must be accompanied by either a $315 filing fee or a motion to waive filing fee and affidavit of indigency. The documents may be delivered to the Clerk's Office in person or mailed, although mailing may not be suitable for urgent motions. Parties paying the filing fee may also e-file (affidavits of indigency, which are impounded, cannot be accepted online at this time).

The Appeals Court single justice is not required to hold a hearing on a motion to stay.   In fact, the single justice decides most motions to stay on the papers submitted, without a hearing, so it is important to include all relevant information, arguments, and documents within the motion and supporting memorandum.

The filing of a motion to stay does not result in a stay.  A Housing Court judge or Appeals Court single justice must enter an order of a stay.

Feedback

Tell us what you think