Eviction actions are legal proceedings. A tenant cannot be evicted without a court order. To evict a tenant the landlord must first properly terminate the tenancy and then obtain the court’s permission to take possession of the unit. If a landlord or tenant files a housing-related case in District Court, the landlord or tenant can have it transferred to Boston Housing Court by filing a form called “Notice of Transfer” in the District Court.
A landlord who is in the process of evicting a tenant should familiarize himself with the summary process rules before proceeding, as a procedural error may result in the dismissal of the case. Although it is not required, a landlord should consider retaining an attorney to assist in an eviction proceeding.
A tenant has the right to defend himself in court and to try to prevent or delay an eviction. If possible, tenants should contact a legal aid service or their own attorney for assistance.
A tenant cannot be evicted in retaliation for performing certain legal activities such as:
Informing the landlord (preferably in writing) of violations of the state sanitary code
Contacting the Inspectional Services Department, health inspectors or other authorities about violations of the law
Joining or organizing a tenants’ group
Instituting an action to pursue legal rights
Legally withholding rent
Deducting money from rent payments to prevent shutoff of landlord-paid utilities
Deducting from rent payments the cost of repairs the landlord has failed to make
If a landlord tries to evict a tenant within six months of such an activity, there is a legal presumption that the eviction is retaliatory.42
A tenant under a standard written lease may only be evicted for one of three reasons:
Non-payment of rent
Violation of a term of the lease (if the lease states the landlord may evict for such violation)
Illegal activity in the apartment
A tenant without a written lease can be evicted without cause. However, he still must be served with a “notice to quit."
A “notice to quit” is a written notice from the landlord, which orders the tenant to “vacate” or “deliver up” the unit by a certain date. Receipt of this notice does not mean that the tenant has to leave by that date; it simply puts the tenant on notice that the landlord desires to terminate the tenancy. Delivery of a notice to quit is the first step in the eviction process.
A landlord has several options available for the delivery of a notice to quit. They are:
Personal delivery to the tenant
Leaving it with the tenant’s spouse
Sending it by first class mail
Having a deputy sheriff or constable serve the notice to the tenant
If a tenant denies receipt of the “notice to quit”, it will be the landlord’s legal burden to prove such service. Therefore it is advisable for landlords to have the notice served by constable or deputy sheriff and by first class mail. Failure to prove service of the “notice to quit” will likely result in dismissal of the eviction action.
In the event that the unit is being used for illegal purposes, the law allows the landlord to proceed directly to court without first terminating the tenancy in writing or serving a notice to quit.43
If a landlord wishes to evict a tenant for non-payment of rent, he must serve the tenant with a 14-day notice to quit. This applies whether or not the tenants are covered by a written tenancy agreement. The first time a tenant-at-will receives a 14-day notice to quit he has the right to “revive” the tenancy by paying the rent owed in full. After service of a subsequent 14-day notice to quit within 12 months, the landlord does not have to allow the revival. If there is no lease in effect, the notice to quit for non-payment of rent must inform the tenant of the right to revive the tenancy by paying the rent.44 If there is a lease in effect, no notice to revive is necessary, and a tenant can prevent eviction by paying the rent owed by the date the court answer is due.45
In leased units, termination of tenancy for reasons other than non-payment may vary in required notice periods. For example, in many standard leases a seven-day notice to quit may terminate a tenancy. Always check the lease to determine the required notice.
Tenants-at-will must receive at least a 30-day notice to quit for other than non-payment evictions.
A 14-day notice to quit may be sent on any day of the month.
A 30-day notice to quit must be received at least 30 days (or one full rental period if it is longer than 30 days) before the date of termination. For example, assuming that the rent is due on the first of each month, and that the termination is to take effect on November 1st, the notice must be received no later than September 30th (the month of October would serve as the full month’s notice period.) Should the termination take effect on March 1st, the notice must be received no later than January 29th (January 30th in a leap year), because the month of February has fewer than 30 days.
To prevent any possible confusion over the termination date it is advisable to use the following language in the notice: “The tenancy is terminated at the end of the rental period that begins next after receipt of the notice."
If the tenant has not vacated by the termination date, the landlord must file a summary process complaint at court. If the property is located in Boston, the case may be filed either in the district court where the property is located or in Boston Housing Court. A tenant has the right to transfer any eviction action filed in a district court to the Boston Housing Court, which is located near Government Center. This can be done by requesting and filling out a “notice of transfer” form from the district court where the action has been entered and filing it with that district court.
Once the court has scheduled a hearing, the landlord must serve the tenant with a summons informing him of the date, time and location of the hearing. At the hearing both parties are allowed to present their case to the judge. Although there is no guarantee as to the length of time the court will allow before ordering an eviction, it is clear that some time will be granted in a case where the tenant is not “at fault”. Such extensions, called “stays of execution”, can be granted for up to six months, or for up to one year for tenants who are elderly or disabled.
If a landlord in Massachusetts obtains an execution, which is a court order of eviction against a tenant, and if the tenant does not then move out and remove his or her belongings, the landlord must give the court order to a constable, who is the only person who may legally move the tenant out. The landlord in the eviction case must pay the cost of moving the tenant’s property to the storage place. However, the landlord is then entitled to be reimbursed by the tenant for this cost. The constable is required to give the tenant a written notice at least 48 hours (which may not include weekends or holidays) before s/he returns to physically remove the tenant’s property and put it into storage.
Such written notice from the constable includes:
The date and time that the constable will arrive to remove the tenant’s property
The constable’s contact information
The name of the court which issued the judgment and the case docket number
Notice that the property will be stored in a public warehouse by a storage company licensed by the Department of Public Safety
The name, address or telephone number of the storage company
Contact information for the Department of Public Safety
A statement that the storage company may sell the property if the tenant does not claim it after 6 months and that funds from the sale can be used to pay any unpaid storage fees
A statement that the tenant must notify the storage company in writing of any change of mailing address
The warehouse must be within a reasonable distance from the tenant’s former dwelling, and the tenant has a right to choose the place for storage, but must notify the constable of the chosen location in writing at or before the time of removal of the property. A tenant may choose to have the property stored in a friend’s place, for example, or in a self-storage facility (with any storage fees to be paid by the tenant), but the place must be within a reasonable distance from the former dwelling.
The constable must give the tenant a signed written receipt with a description of all of the property removed, and must file it with the court. Within 7 days after removal of the property, the storage company must give the tenant a written receipt with a description of the property, and must also give the tenant a detailed written receipt which includes a listing of its storage rates and information regarding how to get the property back.
The fees charged by a licensed public warehouse company must be filed with and not rejected by the Department of Public Safety.
The term “warehouse or other storage facility” shall mean a public warehouse licensed and bonded pursuant to chapter 4, sec. 105, located in the Commonwealth of Massachusetts and within a 20-mile radius of the land or tenements from which the personal property is removed.49
The tenant is entitled to one-time access, free-of-charge, to inspect stored property or to remove personal or sentimental items. To get all belongings back, the tenant must pay all monthly storage fees owed.
41. G.L. c. 186, §12, 13
42. G.L. c. 239, §2A
43. G.L. c. 139, §19
44. G.L. c. 186, §12
45. G.L. c. 186, §11
49. G.L.c.239, §§ 3, 4 and G.L.c.4 § 105