Could a tenant (theoretically) pay all rent due then use Chap. 239 Sec. 8A to stay in my house forever?
Does this mean even if they aren't awarded a judgement or abatement in a counterclaim that they can use 239/8A to stay in the house forever? How long is the "no possession recovery" good for before I can bring another summary process against them?
3 attorney answers
This part of the law deals with a specific situation. In that situation 1) you are trying to evict a tenant for non-payment, 2) the tenant claims that they withheld rent due to the condition of the house, AND 3) the tenant wins a judgment against you that offsets some of the rent due.
If the amount the Tenant owed in rent is more than the amount you owe them for conditions, then they have 7 days to pay it. This is to prevent landlords from evicting tenants for exercising their right to withhold rent due to poor or illegal conditions.
Nothing in this section creates a new tenancy or lease of any kind. However, Chap. 186, section 18 does say that any attempt to terminate a lease at will, or evict a tenant within 6 months will be assumed to be in retribution for the tenant exercising their right to withhold rent, unless you can show an independent reason.
Again, this only applies if the tenant said they were withholding rent due to conditions or failure on your part as landlord. You are also no required to renew a lease for a term because of this section. If a one year lease expires then the tenants become tenants at will, meaning you still only have to wait six months after the tenant pays what they owe you.
I am a Massachusetts attorney and answer questions based on Massachusetts law. The above answer is for educational purposes only and does not create an attorney client relationship or constitute legal advice.
I look upon c. 239, s.8A just like the 14-day notice for non-payment of rent provision within c. 186. In c. 186, if a tenant gets current under a 14-day notice to quit, all is square once again with the tenancy. That's why is you have a tenant at will and want him gone, even for non-payment, I'd always advise using a 30-day notice. Under c. 239, s. 8A, it seems to say similarly that once the trial and all claims are done, who owes who what is determined, what is owed is paid up AND assuming the tenant still wants to live there, yes, you are back to square one. I do not think you are then prohibited for pursuing eviction in the future - no law allows a tenant to essentially steal property that way, not should 239, 8A be interpreted that way - but as Atty. Whittingham points out, you may have to wait awhile before acting again to avoid the retaliation claim under c. 186. Consider that delay a "penalty", for having gotten into a litigation situation with the tenant to the degree that tenant wins on a counterclaim, but it is not a permanent loss of possession for you.
To questioners from West Virginia & New York: Although I am licensed to practice in your state (in WV, on inactive status as of 9/13), I practice on a day-to-day basis in Massachusetts. I answer questions in your state in areas of the law in which I practice, and in which I feel comfortable trying to offer you assistance based on my knowledge of specific statutes in your state and/or general principles applicable in all states. It is always best, however, to work with attorneys and court personnel in your own area to deal with specific problems and factual situations.
No. If the tenant fails to pay rent, you can serve the tenant with a fourteen day notice to quit and then file a summary process action. If this is a tenant at will, then you may serve the tenant with a thirty-day notice to quit (a full rental period), and thereafter file a summary process action. If the tenant in this present case used one of the rights listed in Chapter 239 section 2A, you may want to wait six months before serving the thirty day notice to quit, otherwise the tenant may claim retaliation under that statute. If so, then the landlord has the burden of proving the tenancy was terminated for reasons other than one of those listed in that statute. Here is the statute. https://malegislature.gov/Laws/GeneralLaws/PartIII/TitleIII/Chapter239/Section2A
But no, the tenant cannot remain forever. I would hire an experienced landlord tenant lawyer to help with this case. There are many such in Boston. Good luck with this frustrating problem.
This is merely general information and does not establish an attorney client relationship and is not directed to a specific case.