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How to evict a tenant in Massachusetts

Depending on your perspective (landlord or tenant), Massachusetts either does a great job protecting the rights of tenants OR makes it very difficult to evict tenants. For purposes of this article, which is designed to help landlords evict tenants, we will acknowledge that evictions in MA can be difficult, and landlords need to pay special attention to the details to avoid adding time to the eviction process or, worse, losing their case at court.

First, in Massachusetts, evictions are known as “summary process.” Anyone who intends to evict a tenant without the aid of an attorney should read up on the subject (there are many books available), or watch an informational video on evictions, and familiarize themselves with the rules that govern summary process.  Even if you follow all the rules, it can take months to evict a tenant, so you do not want to prolong the process by making mistakes along the way.

 

Why are you Evicting?

This question refers to the "grounds for eviction." There are three broad grounds for evictions, and all have their own requirements and procedural rules.   

Non-payment of rent. This is the big one, the most common ground for eviction. Before you can evict a tenant for non-payment, you must serve a 14 day Notice to Quit and wait for the time to expire. In other posts on this Forum, I have argued that the best way for landlord's to serve a notice to quit (and all other documents that require service) is by using a sheriff or constable. If you read that linked to post, you will see there are other options, but nothing impresses a court quite as much a Return of Service from a constable. Do it yourself service can result in mistakes or failure of service.  And as I mentioned above, mistakes by the landlord will result in a longer wait for the eviction.

No-Fault. If your tenant does not have a lease and is a tenant at will, you might evict her without any reason.  This process starts with the service of a thirty-day notice to quit. Make sure you understand how the 30 days is calculated and that you provide notice equal to one full rental payment period, or 30 days, whichever is greater.  Watch out for February!

For cause eviction. In this case, the tenant is typically being evicted for some breach of the lease agreement.  Because this is the most complicated form of eviction, and often will require the landlord to provide proof of the bad behavior that justifies the eviction, it is usually easier for landlords with tenants at will to use the 30 day notice to quit and evict without claiming a cause. In other cases, leases will usually specify that a seven day notice to quit may be used. The notice must refer to the lease provision that has been violated and state that the tenant may remedy the breach within the 7 day notice period, move out of the unit, or face termination of the lease and eviction.

 

Going to Court

Once the time noted in the notice to quit has expired, the landlord must prepare and serve a Summary Process, Summons and Complaint. Again, use a sheriff or constable for the service. No less than 7 days after the service, you must file the paperwork at the court (by the “entry date,” which is always a Monday). You can use the local Housing Court or District Court. Housing Courts are more friendly to those who represent themselves. The Housing Court fess are less and they have Housing Specialist who offer mediation prior to trial. The scheduling of eviction cases follows a set pattern that can be a bit confusing to non-lawyers. If you read this prior post regarding how long evictions take, you will find an explanation of the schedule.

Also, the timing of the process can be altered (delayed) by tenant defenses, counterclaims and discovery requests.  Any discovery request by the tenant, such as a request for documents from the landlord, will delay the hearing for two weeks. If the tenant raises defenses or counterclaims against the landlord (for such things as improper service, violations of the state Sanitary Code, retaliatory eviction, security deposit law violations, etc., then the eviction will become more complicated and time consuming. All of these issues are discussed in other posts on this Forum.

At the Housing Court, litigants meet with Housing Specialist before having a trial, with the goal of avoiding the trial altogether. You should try to take advantage of this mediation process. The Specialist know what they are doing, have heard it all before, and are often able to communicate more effectively than the landlord can with the tenant. hopefully, the mediation will result in an Agreement for Judgment. If it was a non-payment case, the  Agreement may include structured payments and a specified move out date. You should try to get the tenant to waive her right to appeals and to stays of execution as part of the Agreement. For other, for-cause, evictions the parties can agree to a solution to the problem or to a move out date. This Agreement becomes a binding court order and the law requires the judge to enforce it if the landlord shows proof of a violation. In short, this type of agreement is quicker and easier for both the landlord and the tenant. I recommend that landlords use this process to their advantage.

If mediation does not work out, you will have to go in front of the judge. The procedure may vary from judge to judge. Some will hold an informal hearing in which both sides will be given the opportunity to speak and present evidence, but others will require a more formal hearing and insist on live witnesses and exhibits. This uncertainty makes it very important for landlords who are not represented by counsel to use the mediation sessions to full advantage.

 

Judgments and Appeals

 When there is no mediated agreement, within ten days of the court's entry of a judgment in favor of the landlord, the tenant can appeal the decision. If that happens, you should ask the court to impose an appeal bond. This requires the tenant to pay rent into court before proceeding with the appeal. Because many tenants do not have the money to pay for the bond, this request may end the appeal.

If there is no appeal within that ten day period, you will be given an "execution," a document that allows you to proceed with the eviction. If your tenant does not leave voluntarily, you must give the execution to a constable or sheriff and pay them to physically remove the tenant and her belongings from your building. Do not try to do this yourself, as self help eviction is illegal in Massachusetts. Typically the constable will give the tenant 48 hours' written notice that she is being evicted. The written notice may be handed to the tenant or posted on her door and will state a time and date on which the eviction will take place.

If the eviction goes forward because the tenant refuses to leave, the constable will deal with her possessions in accordance with the law in MA. This may cost you some money for storage, etc. To avoid those costs, it is not uncommon for the constable, with the landlord's permission, to give the tenant a bit more time to move. However, you must use the execution within three months after it is issued, or will no longer be valid.

Please understand that this is intended as an overview of the eviction process. It is not complete, and there are some details not discussed that could alter your experience or prolong the process. That is why, as I said before, if you are trying to evict on your own, you should educate yourself before you start the process. Good luck.

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Thanks very much for the information on eviction of tenants. I found it helpful. I was wondering if you or any other attorneys have an opinion about whether it makes more sense for a landlord to use a 14 day notice to quit or a 30 day notice to quit when trying to evict a tenant who fails to pay rent on time.? I know you usually would use the 14 day notice but was wondering if there are any reasons why it would make sense to just use the other kind of notice or if it is even allowed. Other landlords have told me I should but either they did not understand why or I didn't get what they were saying. Thanks.



I'm not sure what your friends were thinking of, but generally you will use a 14 day notice to quit for non-payment of rent.  With a lease, of course, the 30 day notice is not relevant.  With a lease, you would either use the 14 day notice for non-payment or a 7 day (or some other number specified in the lease) notice to quit for a breach of a specific lease provision by the tenant.

Your friends may have been worried about the tenant's ability to reinstate the tenancy.  As discussed in that other post, a tenant at will is allowed by law to cure a breach of lease for non-payment and reinstate the tenancy by paying all rent due within ten days of receiving a 14 day notice to quit.  However, she can only do that if she has not received a prior notice to quit for non-payment of rent within the last 12 months.  So, given all that, the only way I can see a possible advantage in using the 30 day notice to evict a tenant for non-payment is if a landlord definitely wants to evict a tenant who has failed to pay rent AND has not received a 14 day notice in the last 12 months.  In that case, in order to avoid an attempt at reinstatement by the tenant, the landlord might use the 30 day notice, give no reason for the eviction, and remove the tenant from the unit.  Frankly, it doesn't seem like a great strategy to me.


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