- No comments
If you received a notice from a city or municipality in Massachusetts stating you must evict your tenant for violation of Massachusetts law such as criminal activity – you may be scared or confused or both or neither – but you still need to take action to avoid liability of your own accord. The municipality maybe threatening action against you personally for failure to get your tenants out. So what do you do? The lawyerly answer is – it depends.
In many cases you will simply be able to elect to terminate the tenancy, whether written or oral, periodic or lease, and commence an action pursuant to M.G.L. c.139 s.19 – the Nuisance statute. It is best practice to terminate the tenancy by notice – even though it is not required – simply stating you have elected to terminate the tenancy because of the notice you received and cite the statute. The next step is to file a CIVIL case for injunctive relief pursuant to M.G.L. c.139 s.19 in Housing Court. You can file in District Court but the tenant will probably just remove it to Housing Court anyway so it makes you look more thorough and direct if you just start the case in Housing Court.
You will need to buy a Summons and Complaint and have it served by constable to the tenant(s). All tenants must be accurately named as it is an ‘in personam” action not an “in rem” action like a foreclosure. You will need to set a trial date and ask the clerk what date(s) the court is hearing those types of cases, if not represented by counsel. Once served and filed, you must subpoena the relevant police officer(s) and report(s) to be present at trial because the tenant has a right to cross examine the evidence against her/him in this type of case.
Many times the tenant will fail to appear anyway and the court may enter a default judgment on that day. If that happens, the court may issue an order for execution on possession, permitting a constable to retake the apartment on levy. You will still need to place the tenants property in storage per the tenancy storage laws. In some cases, the tenant may return and try to have the case undone but will still have to go through the hearing and beat the case against them. Things that can give rise to problems in these types of cases are lack of ability to prove the case and – in fact – a criminal Motion to Suppress can be heard in Housing Court in these types of cases – where the tenant believes the evidence obtained to support the eviction case was illegal and must be suppressed to ensure a fair trial. These are incredibly rare instances but not unheard of.
If the tenant does appear for trial and mediation is unsuccessful, the case will be heard by a judge. Th landlord will need to prove a violation of the Nuisance law supporting the injunction, by putting the relevant police officer or other witness(es) on to testify about the evidence. If the evidence supports the case, the court may issue the order for an injunction forcing the tenant(s) off the property. Again the tenancy storage laws apply and the landlord will have to pay a constable serve the execution for possession and supervise the move of the tenant’s property to a storage area within 10 miles of the premises with 3 month’s storage paid in advance by the landlord.
The best way to avoid this type of situation is to spend the money up front to screen your tenants with a relevant background check. Many landlords try to charge the tenant a fee for this check but are prevented from doing so by M.G.L. c.186 s.15B from taking anything more at the inception of the tenancy than first, last, security, and a one time lock and key charge. Pay the money and screen your tenants and avoid having to pay for a Nuisance law case in Housing Court – because you pay one way or the other. There is no fool-proof screening plan and facts do change so – if you aren’t sure what to do send me an email today.