The Massachusetts tenant has a right to an eviction case per case law and M.G.L. c.186 and c.239, except for rare circumstances like a police raid – covered instead by M.G.L. c.139 s.19.┬áMerely changing the locks or using other “self-help” means for eviction will likely result in the tenant winning money from the landlord and an order restoring the tenant to the property.

That means a tenant does not have to leave an apartment unless a court orders her/him/them out after notice and a fair hearing. The Legislature created the Summary Process (eviction) case to balance the competing needs for the tenant’s right to trial and the landlord’s need to have rental income satisfying mortgage and property tax payments, among others. The landlord must file an eviction case to get the tenant out of an apartment.

There can be no eviction case unless the tenant first receives a Notice to Quit. That notice must both 1) content and 2) timing requirements. There are a few different types of notices to quit: 1) 14 day for non payment, 2) 30 day or period’s notice for no cause, and 3) for-cause. The notice must start on the first day of the rental period and ends on the last day of the rental period or 30 days after the first day of the rental period -whichever is longer. This does not apply to the 14-day notice, which expires 14 days from its being given to the tenant, although there are certain other rules that apply to the content requirement of that notice.

The landlord can purchase a Summons and Complaint and file an eviction case once the Notice to Quit expires in either Housing Court, District Court, or Superior Court. The tenant has a right to remove any such case to Housing Court, to file an Answer (with or without counterclaims) and Discovery Requests, and to a jury trial. In most cases it makes sense for the tenant to waive the jury trial and go before a judge, but not always. The tenant can file pre-trial Motions with the Answer and Discovery, due to the court the Monday before the listed trial date. In some cases, if the landlord fills out the Notice to Quit and/or Summons and Complaint incorrectly the case must be dismissed and the landlord must start the case over.

The Summons and Complaint will state the “Answer date” at the very bottom of the page. This is where the tenant can raise any claims for bad conditions, security deposit, retaliation, discrimination, cross-metering, breach of quiet enjoyment, illegal lockout, c.93A, and any other counterclaim recognized at law. A few rare cases limit the types of claims the tenant can raise in a specific case, but s/he will be able to file a separate case to recover any damages sought in those claims.

There are essentially two basic things for the court to determine in an eviction case: 1) who gets possession of the apartment and when and 2) who owes who what money and when. The court’s finding of current state sanitary code violations and/or retaliation may prevent recovery of the apartment by the landlord. The landlord may also be liable to the tenant in counterclaim per M.G.L. c.239 s.8, however one recent analysis showed landlords winning upward of 90% of eviction judgments in Massachusetts.

The tenant may voluntarily vacate the property, or a constable can be arranged to physically move tenants out if the landlord wins possession through trial or mediation and the tenant refuses to leave after fully exercising their legal rights. It can be costly for a landlord to physically move the tenant out of the property and put the tenants property in storage as required by law. The tenant who loses at trial or stays past the agreed move out date may also seek a stay of eviction if certain criteria are met. Most importantly, the tenant must be able to pay for the time s/he occupy the property, either themselves or by third party, in order to obtain a stay of eviction.

The tenant in Massachusetts who wins at trial would have her/his tenancy reinstated and may be due money compensation from the landlord. In some cases, the tenant wins less money than they owe and are permitted 7 days to pay the balance into the court. The tenancy is reinstated once the balance is paid in those instances and the landlord must start again from the Notice to Quit stage if s/he wants to attempt to regain possession of the property. A party can appeal from an eviction case judgment with 10 days and usually requires the appealing party to pay in to the court the amount of the judgment against them.

It almost seems absurd to people that apartment rentals can end up in housing court, but there are centuries of common law, as well as contemporary appellate law on the state and federal level in the realm of landlord-tenant law.

Email me today if you have questions about the eviction process.

MJS

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