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Tenants Rights

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The Action for Boston Community Development Handbook of Landlord/Tenant Rights and Responsibilities

 

Eviction process

Notice. Before your landlord can evict you, she must properly notify you that she is ending or terminating your tenancy. This notice must be in writing and the time period begins from the date you receive the notice.

14-day notice to quit This type of notice is used if the landlord claims that you owe back rent. It can be given to you any day of the month. The landlord must wait 14 days from the date you receive the notice before she can go to court to start eviction.

30-day notice to quit If you are a tenant at will and your landlord tries to evict you for any reason other than nonpayment of rent, or for no reason at all, she must give you a 30-day notice to quit. You must receive the notice at least 30 days or one full "rental period" in advance, which ever is longer. MGL ch. 186 sec.12. (See Types of Tenancy for full explanation)

7-day notice to quit. Some leases state that you can get a 7-day notice to quit if it is claimed that you have violated the terms of the lease. In addition if you are a tenant in a licensed rooming house and it is claimed that you have disturbed other tenants or caused a nuisance, a 7-day notice to quit may be issued. Except for these circumstances, a 30-day notice to quit is more common.

Summons and complaint After the date on the notice to quit expires, the landlord can now begin an eviction proceeding called a "summary process action." The landlord will file a complaint with the court and a copy of the complaint will be served to you. A summons must be served to you by a sheriff or a constable who is authorized by law to serve court papers. The complaint will state the reason for the eviction and how much, if any, rent your landlord claims you owe. It will also list the date, time and location of the court house where you must appear at. This document will also give you the date by which your answer must be filed at the courthouse.

Answer The answer is your chance to tell your side of the story. It is very important that you file your answer at the court and send a copy to your landlord or her attorney by the date listed on the summons. If you don't do this, the judge may default you and give the landlord permission to move you out. It is possible to get that default removed, but it is better to get your answer in on time. This is also the time for the tenant to make any counterclaims that she has against the landlord. You should cite things such as health code violations, retaliatory actions, security deposit violations, and any other circumstances that apply. The forms that you need can be picked up at local district courts. As always, make sure you keep a copy of your answer for your records.

Discovery As a tenant facing eviction, you have the right to request information and documents from your landlord in order to prepare your case. If you request discovery, the court will postpone your court date for two weeks to give the landlord time to gather requested documents and send you the information. You must file your discovery papers with the court and deliver a copy to your landlord or her attorney on or before the answer date. If you do not file a discovery, then you must appear in court on the date stated on the summons.

Preparing for the hearing. Before you go to court, you need to make sure that you are prepared to give your side of the story in detail. Some things that you can do to prepare:

  • Take pictures of any damages or code violations in the apartment, making sure you mark the date that the photos were taken.
  • Collect any documents that you need to prove your case. Try to bring the originals.
  • Get copies of any inspection reports, making sure that they are stamped and signed by the person who performed the inspection.
  • If you have any witnesses, make arrangements for them to come with you.
  • Prepare a brief written statement that summarizes for the court how the landlord violated the law and why you should not be evicted.
  • Write out a list of any questions you may have for the landlord.

Transfers. If your hearing is scheduled in District Court, you can have it transferred to Housing Court. The same legal proceedings apply to Housing Court, but the judges and staff are generally more familiar with housing laws than judges in district or superior courts. Housing Courts also have the staff and knowledge to assist tenants who do not have a lawyer to complete the legal process. If you transfer your case to Housing Court you lose your right to appeal the case in Superior court. You may still appeal the case to Appellate Court but this is more difficult to do. Even if you decide to transfer your case, you must file your answer and discovery forms by the date given on the original summons.

Hearing. Make sure that you are on time and in the room when the clerk calls your name. If you do not answer, you will be defaulted and you will lose the case. If your landlord does not appear, the case should be dismissed. Make sure to ask the clerk for a copy of the order of dismissal if this happens.

Mediation. The court will give you the option to go into mediation. Mediators are trained court staff that will try to assist you and the landlord to make an agreement before you go to the judge. If you go into mediation, make sure that you do not agree to any conditions that you will not be able to keep. For example, if you are going in for nonpayment of rent, and the landlord and mediator are deciding on a payback plan, make sure that it is an amount that you can afford. If you and the landlord cannot come to an agreement in mediation, then you will still be able to have a hearing before the judge. Everything that is said during mediation is confidential and should not be discussed in court if there is a hearing later.

Judgment. The judgment is the final decision of the court. A judge will either rule on a case while you are in the courtroom or they will "take it under advisement," which means that the judge will send you a written decision in the mail. If the Judge rules in your favor, you will be able to stay in your apartment. If the judgment is against you, you will have to move or appeal the decision. If you appeal, you must file a "Notice of Appeal" and a "Motion to Waive Appeal Bond" within ten days of the hearing. MGL ch 239 sec. 3

Execution. If your landlord wins the eviction case, she then gets a piece of paper called an execution. This gives the landlord permission to have a sheriff or constable remove you and your possessions from the apartment. A landlord must use this execution within three months of its being issued. Only a constable or sheriff can deliver the execution and move you out. A constable must give you 48 hours written notice that you are going to be evicted. This notice will give you the date and time a constable will move you out. A sheriff or constable can only move you out Monday - Friday, 9am-5pm, and not on legal holidays or weekends. The constable is responsible for seeing that your belongings get put in storage. If you do not want them there you must tell the constable, and they will move your belongings out to the street. The landlord is responsible for the costs of moving and storing your belongings for up to three months. Recently, storage companies have also been charging a docking fee when you remove your belongings from storage. The landlord is not responsible for payment of this fee.

Stay of execution. If you lose the eviction and need more time in the apartment, you can ask the judge for a "stay of execution." To do this you should ask the judge for a stay at the time of the judgment and you must complete the form that you can request at the courthouse. The judge has the power to freeze an execution for up to six months, and up to twelve months if you are handicapped or 60 years or older (A stay cannot be granted if you are being evicted for nonpayment of rent, or for some other reason that was your fault.). You should also bring with you a list of apartments that you have looked at and good reason why you need more time. If you are granted a stay of execution, you are still responsible for paying rent on the apartment while you are there. MGL ch. 239 secs. 9-11.

Tenants with subsidies. If you are being evicted from subsidized housing or if you hold a subsidy certificate, your case will be more complicated. Make sure that you contact ABCD at (617) 357-6000 X 347 or the Legal Services in your area for assistance.

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