Here are the Frequently asked Questions I see:
Q. I want to evict my tenant, can I do it myself?
A. Evictions are termed “summary process" actions here in Massachusetts and have an entire set of procedural rules that go along with them. These rules are very complicated and have many points that may trigger a tenant's counter-claim. The statute that covers evictions is G.L. 239 all sections. However, tenants have rights for civil claims which are found in other statutes, so simply reading G.L. 239 is not going to protect you from making a huge and costly mistake.
It is important for landlords to understand that Massachusetts is a very tenant friendly state. The eviction process can be frustrating, feel unfairly weighted in favor of the tenant, and can be costly, in lost revenue and litigation costs. Eviction cases can move as quickly as 60 days or take 18 months or longer.
Landlords who represent themselves, are frequently surprised to find themselves on the receiving end of costly claims for retaliation or discrimination (often three times the rent, plus $200-400 in court costs, and attorney's fees of $1,000-5,000 for a relatively short case. If you choose to represent yourself, you do so at your own peril. These FAQs are not a substitute for having an attorney with you to handle these cases.
Q. What are the reasons I can evict a tenant?
A. There are many ways to get into court, but each has it's own risks and benefits. The most reasons are: “non-payment of rent”, “no fault”, and “for cause.”
Q. What is involved in the eviction process, how hard is it really?
A. A lot! It is no more complex than taking out an appendix.
First, the most common grounds for eviction is non-payment of rent. The landlord is required to terminate the tenant's tenancy before proceeding to court. This is done by sending a notice to quit. The law requires a landlord to give a tenant a “14 day notice to quit” prior to the commencement of an eviction action. There are very specific rules relating to the notice to quit (too many to list). The most common problem for landlords is proving that the tenant RECEIVED the notice, not that the landlord sent it, but that it was actually received and on the date the landlord says it was! I have these served by a Sheriff or Constable, which is accepted by the court as service on the date it says it was served and no further proof is needed. Certified mail is not proof it was received until it is signed for. The least effective service is leaving it under the tenant's door.
After the notice is served properly and if it complies with all the procedural requirements, the tenant may have the right to cure the rent lateness by paying it and that ends the eviction process. I have had many landlords who wait until the 3rd, 5th, 20th time the rent is late before starting the process, have it dismissed, then come to me and ask why. They are surprised when I explain to them that they cannot continue to evict the tenant now, even though they really just want the tenant out because the tenant is late on the rent all the time. They now have to start at the beginning with a new notice to quit under a different reason.
The second most common reason is for what is called “No-Fault”or a termination of a “tenancy at will” or “month to month” (written or oral). a notice to quit is again required to terminate the tenancy, however; here it is a 30 day notice. Landlords often find themselves on the receiving end of a motion to dismiss and counter-claims because they failed to follow the rules. A 30 day notice to quit is very different from a 14 day notice, not in the length of time, but in the rules associated with it. A 14 day notice, only requires 15 days notice (that would be one of the tricky rules). A 30 day notice can take anywhere from 31 days to almost 90 days to become effective depending on when it is served.
Lastly, is the “For cause” evictions for tenants with a lease longer than 30 days. This can be for any breach of the lease by tenants. It could be for illegal drug use or sale, prostitution, unauthorized pets or roommates, noisiness, pretty much any violation of a lawful lease provision. Again the landlord must provide a notice to quit to the tenant stating the reasons for the eviction. A “For cause" eviction is the most difficult, because the landlord must prove the alleged lease violations.
Finally, there are special rules that apply to foreclosures and evictions, which I will not get into here.
Those were the problems just getting to the point where you are ready to file a complaint for eviction. Next, you file a complaint with the court, the complaint and the notice to quit must match reasons, if they do not you will find your case dismissed.
Picking the right court, as the landlord you may have a choice of where to bring the action; District, housing or superior court. Each has its pluses and minuses, the additional worry for landlords is that if they chose the District or Superior court, the tenant has the right to remove it if there is a housing court with jurisdiction and comes with a 2-week postponement of the trial.
There are complex time calculations, but suffice it to say evictions are generally held on Thursdays.
The tenant has a right to file discovery requests (these are demands for papers, pictures, other documents, answers to the tenant's questions, and what are called “admissions” these are the trickiest of all the discovery, because if they are not answered they are automatically considered admitted under the law) The discovery postpones the eviction hearing for an additional 2 weeks.
The tenant has defenses/counterclaims they can now bring in at no cost to them. These defenses/counterclaims act as both a shield and a sword for the tenant. Evictions are for “possession” of the rental, but often include claims for unpaid rent or damages to the landlord. The tenant's defense to possession can also be a request for money damages against the landlord. So the landlord can lose twice, the tenant stays in the rental and the landlord has to pay money damages. These claims can be for: bad conditions (no heat/hot water, failure to make repairs, lead paint, or infestations); retaliation, discrimination; violations of the security deposit law; and violations of the consumer protection act.
Being a landlord in Massachusetts can be incredibly difficult. The law is structured to protect tenants. The most important thing a landlord can have is an attorney they work with. One bad relationship with a tenant can create a financial disaster for a landlord.
When you find yourself with a tenant complaint, STOP and ACT!
S-Security Deposit violations (three times damages plus attorney's fees)!
T-Tenants are favored in Massachusetts!
O-Operating costs (Attorney's fees)!
P-Punitive Damages (court ordered triple damages and attorney's fees)!
A-Already have an Attorney to work with!
C-Careful not to do or say anything that will make you liable!
T- Together we can settle things before they cost you all your profits!