Welcome to the seventh installment of my comprehensive 'Rental Handbook' aimed at helping renters (and landlords) in the Boston area understand the rights and obligations of tenants (sometimes referred to as renters or lessees). In this Handbook, I will approach issues that you may face in dealing with a rental in the city, or in the surrounding towns of Newton and Brookline.
Today we will cover Eviction Requirements so that you understand what rights you have if your landlord is trying to evict you from your rental. Please note that this does not constitute legal advice and is meant only to serve as a guide to help you navigate a difficult process. Please consult an attorney if you are facing eviction.
Generally, a landlord cannot simply take possession of the rental property, physically remove the tenant or their personal property, or change the locks without an order from a judge.
Consumer Options and Assistance
If the landlord and the tenant agree, they may utilize mediation services through the Attorney General’s Office to resolve a dispute that might otherwise result in an eviction. In addition, the Massachusetts Communities and Development Housing Services Program or the local housing court can provide help in resolving a dispute between a landlord and a tenant. If you are seeking assistance regarding your situation, please contact the Consumer Advocacy & Response Division (CARD) or contact the Consumer Hotline at (617) 727-8400.
If Eviction is Pursued
There is a formal process for eviction supported by the MA judicial system that must be followed for an eviction to take place. If you are being evicted, Massachusetts law provides you with some protections. You may wish to consult with an attorney. Landlords of tenants with rent subsidies must follow the eviction procedures in their rent subsidy contract and lease agreement.
Tenants at Will: Your landlord must send you a “14-Day Notice to Quit” if terminating your tenancy for non-payment of rent. If it is being terminated for any other reason, you must be given written notice 30 days, or one full rental period in advance, whichever is longer.
Tenants with a Lease: Your landlord may attempt to evict you if you have not been paying your rent, or if you or people under your control have caused excessive damage to your apartment or you have violated the terms of your lease. Your landlord must send you a “Notice to Quit” your tenancy. If the landlord is terminating your tenancy for non-payment of rent, they must send you a “14-Day Notice to Quit”. Your lease will specify the notice requirement for other terminations; it is typically seven days.
The formal eviction process is called Summary Process and starts when the landlord files a Complaint in court and notifies you in a “Summary Process and Complaint” that they are taking legal action against you. It will state the date of the eviction hearing and the date on which the “Answer” is due. The Answer is a written response from you stating why you should not be evicted. The Answer must be received by the court and the landlord the Monday before your court date. Keep a copy for yourself. During the eviction process the tenant will have the right to raise defenses to the eviction itself and present counterclaims for monetary damages. Some common defenses to eviction include:
Failure to properly terminate the tenancy.
The landlord failed to correct known conditions.
The landlord is evicting you in retaliation for activities protected by law.
Discrimination, including that the landlord failed to make a reasonable accommodation to allow a disabled person to remain in the home despite his or her disability.
If you are being evicted for non-payment of rent, you may avoid the eviction if you pay all rent owed, plus interest, and the landlord’s cost of filing an eviction case (as long as this is the first notice you have received within the last 12 months). If there is no statement of your right to revive the tenancy in the Notice, you have until the date your Answer is due.
Judgment and Appeal
If you lose the case, you may appeal the decision and request a new hearing. If you appeal, you must file a “Notice to Appeal” within 10 days after the date the judgment is entered. An appeal bond is usually required, but may be waived if you cannot afford it; and you have a non-frivolous defense. If no defense is accepted by the court, the landlord will obtain a judgment from the court that specifies the date that the tenant must leave the rental property with their belongings.
The execution is the judge’s eviction order; the landlord cannot physically evict you without this paper. If a physical eviction is allowed, the court will give the landlord the execution 10 days after the judgment is entered. You must receive written notice of the date and time the physical eviction will take place at least 48 hours in advance. On the date set in the notice, you must leave apartment.
If the tenant does not voluntarily leave on the date specified by the court, a landlord must arrange for a Sheriff or Constable to serve an executed Judgment on the tenant ordering them to leave, and if necessary, relocate any personal property belonging to the tenant to a licensed public warehouse or storage facility (unless you give them permission to leave belongings on the street). If your belongings are put in storage, the mover should make a descriptive list of all stored items. In this situation, the landlord is obligated to pay moving fees, but is entitled to reimbursement from the tenant. The storage company will have a lien on your belongings, which can be enforced by selling your goods. The storage company, however, cannot sell your belongings without waiting six months. The tenant is allowed a one-time opportunity to claim items of personal or sentimental value from the storage facility, and can claim all personal property from the storage facility upon payment of any fees charged by the storage facility. You are not required to pay back rent to get your furniture out of storage.
The Stay of Execution
If the eviction was not your fault or you cannot in good faith find a place to live, you may be able to convince a judge to grant you a Stay of Execution, allowing you to stay in your apartment for up to six months. Elderly or disabled tenants can request a stay of up to one year. If you are being evicted for non-payment of rent, you do not have any legal basis to request a stay.