Robert S. Kutner, ESQ. | Jul 01, 2014
Whether renting a property or selling a rental property, it is important for every real estate agent to be familiar with the procedure for evicting tenants. It is often a condition of closing a sale that the property be vacant. If a licensee participates in a wrongful eviction, the licensee and a broker with whom the agent is affiliated may be subject to liability. Even providing legal advice to a property owner concerning the process for evicting a tenant could lead to liability. Refer a client who needs legal advice to a qualified attorney.
The procedure for terminating a tenancy depends upon the reason for termination and
whether the tenant has a lease (agreement to occupy for a fixed time period) or
is a “tenant at will” (month to month tenancy). Even when the tenant has paid all rent, the lease may be terminated if the tenant has violated the terms of the tenancy agreement, such as making unauthorized changes to the premises, painting, or changing the locks. If the lease prohibits changes without landlord approval, termination is a remedy. The form of notice of termination and the time to vacate is established by the lease and by statute.
Some leases may be automatically renewing or be “self-extending.” The lease may set the time frame for giving notice in order to prevent automatic renewal. Without an agreed time period in a lease, the law provides that, notice of termination is required to be given a minimum of 30 days before the next anniversary date. If a lease is not self-extending, but the tenant continues to occupy the property after expiration, the tenancy converts to a monthly “tenancy at will.” Timing of Notice to Tenants at Will
Under a tenancy at will, the time to give notice is governed by Massachusetts statute. The law provides that written notice must be given at least one “rental payment period” in advance or 30 days, whichever is longer. For example, if termination by the end of August is desired, written notice must be received by the tenant by July 31st. A notice given on August 2nd will not be effective on September 2nd, but will become effective the last day of September. Non-Payment of Rent
To evict a tenant for non-payment of rent, the landlord must first deliver or mail a “14-day notice to quit.” The 14-day period is set by statute and begins to run from the date the tenant receives the notice. Notice can be given as early as one day after the rent payment is overdue. The law provides that a tenant who has a lease can cure the non-payment by paying all back rent with interest, and if a summary process action (eviction suit) has been filed, reimbursing the landlord for the cost of filing suit. The payment must be made no later than the day an answer to the eviction is due.
Where there is no lease, but only a tenancy at will, the tenant has a right to cure by making payment within 10 days after the notice to quit is received, except if another notice to quit had been received within the prior 12 months. In addition, if the notice to quit does not explain the right of the tenant at will to correct the non-payment, the time to correct the problem is extended until an answer is due.
If a delinquent tenant tenders payment for less than the full amount or is late in trying to cure, the landlord must be careful, because there may be unintended consequences when the landlord accepts the payment. Depositing a check may be considered to be a waiver of the landlord’s right to evict. To avoid a waiver, the landlord should endorse the check by noting that it is being accepted “for use and occupancy of the premises, without waiving the notice to quit.” Eviction Notice
To prove the date that a notice of eviction was given, it is recommended that the notice be served in hand by a constable.The constable will provide written certification of the service on the back of a copy, returning it to the landlord for use in any eviction proceedings . This “return of service” will be sufficient proof without the need for the constable to testify. Service by hand can be to the named tenant or to any adult occupant of the rented premises. An alternative that may be used is to send certified or registered mail, return receipt requested, but issues may arise if the mail is not accepted or delayed. If the notice is merely slipped under the door, the tenant may claim that it was never received.
A tenant can be lawfully evicted only by a landlord going to court and filing a “summary process” action. A landlord may not use self-help tactics to force a tenant to leave. Prohibited tactics include: turning off the heat, electricity or water; changing the locks; or removing the tenant’s possessions. These tactics violate the law.
By statute, a tenant who is a victim of a “self-help” eviction can recover damages. Those damages may include moving costs, the difference in rent if a higher rent is paid to rent another residence; and the value of possessions damaged or lost upon removal by the landlord. If the tenant cannot prove the amount of actual damage or if those damages are minimal, Massachusetts law provides for a minimum recovery of 3 month’s rent and attorneys’ fees. In addition to financial damages, self-help evictions can lead to criminal convictions with financial penalties or imprisonment for up to six months.
Where a tenant has failed to pay rent, the landlord may file suit to recover unpaid rent or the amount due for use and occupancy in the same way that any other claim could be pursued. The alternative is to file an eviction proceeding, also called a “summary process” action seeking possession of the property as well as money.
Merely filing suit to recover unpaid rent is generally preferred if the tenant is employed; has assets that may be used to satisfy the judgment; and the landlord does not want a vacant unit. Claims for up to $7500 can be filed in small claims court without an attorney. Each district court clerk’s office has forms to use and can explain the procedure.
If eviction is necessary, it is recommended that an attorney be retained. If the landlord proceeds without an attorney, the form for a summary process complaint and summons must be obtained from the appropriate court. While most eviction actions are brought in the district court in the judicial district in which the land lies, for residential tenancies, a housing court has concurrent jurisdiction for eviction actions. Thought should be given as to where to file the original eviction action as, if the case is initially brought in district court, a tenant can cause significant delay by transferring the case to the appropriate housing court up until the day before trial. Under the Uniform Summary Process Rules, every Monday is considered an “entry day” when a summary process lawsuit may be entered on the court docket. Trial will be automatically scheduled for the second Thursday following the entry day. The entry day selected by the landlord should be several weeks away, since a constable must serve the tenant at least seven days in advance, but no more than 30 days before the entry day. After service, the complaint is filed in court.
The tenant’s answer is due Monday following the entry day. A tenant who files a request for discovery from a landlord, namely seeking answers to interrogatories or production of documents is entitled to an automatic 14 day delay in the trial date. If a judgment is entered for the landlord, the tenant will have 10 days to appeal. If the tenant fails to appear for trial, a default will be entered.
Once judgment is entered and the appeal period has passed, an “execution” to enforce the judgment can be obtained from the court clerk. If the tenant has not left voluntarily, the execution should be given to the deputy sheriff for the county. The deputy sheriff will try to convince the tenant to leave within a few days. Unless the tenant leaves, the deputy sheriff will have the tenant’s possessions moved to a bonded storage warehouse with the landlord advancing costs.
If the landlord does not wish to retain an attorney and commence a summary process action, one alternative is to negotiate a payment to the tenant as an incentive to leave voluntarily. Such agreements are often referred to as “cash for keys."