A Massachusetts landlord can only evict a tenant upon expiration of the lease term, for violation of a specific provision in the rental agreement or for nonpayment of rent. All landlords must follow the Massachusetts eviction process to expel a tenant.
Following the Massachusetts eviction process means the landlord must first give the tenant proper notice in most cases and then by obtaining a court order. Occasionally, a landlord will circumvent these steps and take illegal measures, such as the following:
- Shutting off the utilities
- Changing the locks or denying use of the premises
- Entering and removing the tenant’s personal belongings
- Interfering with the tenant’s use of the property
If a landlord attempts any of these actions, he or she may be subject to criminal and civil liability. If this occurs, a tenant should send a registered or certified letter to the landlord warning him or her that these actions are illegal. If the landlord does commit an illegal act, the tenant could obtain a Temporary Restraining Order (TRO) ordering the landlord to restore the premises, property and other services to the tenant. The court could also order the landlord to pay damages to the tenant of at least 3 months rent, court costs and attorney’s fees.
The tenant can also call the police and file a criminal complaint but this could take weeks or months before a court hearing is scheduled.
Massachusetts Notice to Quit
In nonpayment of rent evictions, the landlord is required to serve a Massachusetts eviction notice giving the tenant 14-days to pay or to vacate or the lease will be terminated. Any rental agreement that waives this requirement is illegal. Some leases may give the tenant a longer time to comply.
For eviction reasons other than nonpayment of rent, the Massachusetts eviction notice is not statutorily specified, though many leases give a 7-day notice, which is legal. In these cases, the notice must refer to the lease provision in violation and that the tenant may remedy the breach within the notice period, vacate the premises, or the lease will terminate and legal action will be brought.
If there is no written lease, the Massachusetts eviction notice is 14 days for nonpayment of rent. For any other reason, the notice is 30 days, or at the end of the rental period, whichever is longer.
A landlord need not give notice if the lease expires and there is an option to renew that the tenant fails to exercise. The landlord may proceed directly to the next step in the Massachusetts eviction process.
Service of Notice
An eviction notice can be served by anyone including the landlord. It must either be served personally on the tenant, given to the tenant’s spouse, or sent by regular mail. A landlord does have to provide proof of service. If mailed, registered or certified mail should be used. If served personally, the person serving it should complete an affidavit of service.
Summons and Complaint
Once the lease has terminated without compliance by the tenant, the landlord must file and serve a summons and complaint. At the court, the landlord chooses an entry date, which is the date the landlord must file the complaint along with proof of service by the sheriff. It must be entered or filed on a Monday at least 7-days, but no more than 30-days, after the sheriff serves it on the tenant. A copy of the notice to quit that was previously served may have be served along with the summons and complaint.
The tenant is required to file an Answer to the summons and complaint within 7-days after the entry date, which is the Monday after the entry date indicated. If the tenant does not file a discovery or transfer form to another court within 7-days, the eviction trial will be held 3-9 days after the Answer date. If a discovery form is filed, the trial is held 17-23 days after the Answer date.
The discovery form is a request to the landlord to answer certain questions propounded to him or her and a demand to give the tenant specified documents. The landlord will have 2 weeks to respond.
Some jurisdictions have a housing court. A tenant may transfer his or her case to the housing court so long as the Answer and discovery forms are filed and served as well.
The Answer must contain any affirmative defenses the tenant is alleging. If the tenant fails to file an Answer, he or she may still appear on the court date and ask the court if an Answer can be filed that day. Otherwise, a default judgment will be entered for the landlord.
If the tenant fails to appear on the trial date, the court will enter a default judgment. Should the tenant have filed an Answer but fails to appear, the court will wait 7-days to give the tenant an opportunity to request a new trial date. This applies equally to a landlord who fails to appear. If the landlord does not appear, the tenant can ask that any damages requested in the counterclaims be awarded.
In housing court, the tenant may have the option of meeting with a mediator to work out a suitable agreement with the landlord that is signed by both parties. If the tenant fails to abide by the agreement, the landlord can proceed with the eviction.
A tenant has a number of defenses to assert against the eviction, including the following:
- Invalid notice to quit.
- Invalid rent increase.
- The rent was tendered to the landlord within the compliance period who refused to accept it.
- Improper service of the summons and complaint.
- No reason was stated on the notice to quit if the lease had not expired.
- “Bad conditions,” or conditions created by, or not remedied by, the landlord that violate the state sanitary code. A tenant should notify the landlord in writing of the conditions.
- The landlord accepted the rent without first specifying it is for “use and occupancy only.”
- Retaliation. Within the past 6-months, the tenant had complained to the landlord or health inspectors about bad conditions, the tenant had withheld rent for bad conditions, or had organized or joined a tenants’ union.
- Discrimination. A tenant may not be evicted based upon race, religion, creed, age, sex, sexual orientation, marital status, military status or disability.
Judgment and Execution
A judgment favoring the landlord may be given the same day as the hearing or some time afterwards, Once issued, it becomes effective the day after but the tenant has 10-days to appeal. After 10-days, the court clerk will send the landlord an Execution to be given to the sheriff or constable who will have the authority to physically remove the tenant and all of his or her belongings.
The Landlord Guidance
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