How to go about evicting a non-paying Tenant in Massachusetts.
Gather All Paperwork Regarding TenancyIt is critical that, before doing anything, you collect any and all documentation pertaining to your tenant's payment or failure to pay rent. Such documents include checks, rental receipts and returned (bounced checks). Also find the original document creating the landlord-tenant relationship (the written lease or tenancy-at-will agreement). After finding these documents, place everything in one file.
Determine the exact amount the tenant is behind.Though this may sound simple enough, sometimes the tenants have fallen so far behind that extra efforts need to be made to determine the exact amount the tenant is in arrears. Determining the exact amount owed is critical in maintaining an upcoming Court action.
Draft a 14-Day Notice to Quit for Non-Payment of Rent (Part 1)Draft a 14-Day Notice to Quit for Nonpayment of Rent. Here is a form I have created: I have split it over steps 3 and 4:
To: Mr. Bad Tenant- 123 Fake Street Anytown MA
You are hereby notified to quit and deliver up the premises you now rent as a tenant, namely, 123 Fake Street, Anytown MA and all appurtenant uses thereto. You have 14 days from receipt of this notice to leave or I will go to court and get permission to evict you. By law, a court is the final authority in every eviction and if you believe you are entitled to remain as a tenant, you or your lawyer may present your case in court. The reason your tenancy is being terminated is that you have failed to pay the rent due as follows:
January 2010: $1,200.00, February 2010: $1,200.00 Total : $2,400.00
(The remainder of this form is on Section 4)
Draft a 14-Day Notice to Quit for Non-Payment of Rent (Part 2)If you have not received a notice to quit for nonpayment of rent within the last 12 months, you have a right to prevent termination of your tenancy by paying or tendering to your landlord, your landlord's attorney or the person to whom you customarily pay your rent the full amount of rent due within 10 days after your receipt of this notice.
If your tender of rent payments does not comply with the requirements noted above or otherwise cure or excuse the breach as provided by law, any funds paid by you after the date of this notice shall be accepted for use and occupancy only and not for rent, shall not waive this notice or any subsequent eviction proceedings, nor shall it create or reinstate any tenancy.
You are hereby notified to produce the original of this notice at any trial for possession of the premises.
Very Truly Yours,
Have a Constable Serve the 14-Day Notice To QuitAfter drafting the notice to quit, serve it upon the non-paying tenant by means of a local constable. Though a constable may charge you anywhere from $25-$40 for service, it is money well spent as many tenants will deny that they ever received a Notice To Quit. I have provided the link to a Constable that effectuates service all over the Commonwealth below.
Though some Landlords prefer to send the Notice to Quit via certified mail return receipt requested as to save on the expense of a constable, they run the risk of the tenant never signing the return and again claiming that they never received the 14-Day Notice.
Wait two weeks, then obtain and fill out summary process summons and complaint.If the Tenant does not contact you regarding payment or pending move within a week after service, obtain a summary process summons and complaint from your Local District Court or Housing Court Clerk's Office. It may be a good idea to get this form well before the 2-week period expires if you have an idea that the tenant won't pay or move. This form will cost you $5.00 and you will have to fill it out by hand (neatly) or by using a typewriter.
Be sure to consult a local attorney on where to file as it may be advisable to file in one Court or the other based on the local jurisdiction of the Housing Court.
Take extra-special care to fill out the summons and complaint correctly according to the dating instructions on it. As for reasons for eviction simply state: "The tenant has failed to pay rent as follows...." Also, make sure to ask for your court costs associated with bringing the action which will be your filing fee ($195.00) and Constable Fee.
Serve the Summary Process Summons and Complaint Upon TenantServe the Summary Process Summons and Complaint on the Tenant by means of Constable.
Obtain Return of Summons and Notice to Quit and file both on the entry date noted on the complaintAfter receiving the return from the Constable on the Summary Process Summons and Complaint, file it along with the Returned Notice to Quit with the Clerk's office in the Courthouse you originally obtained the form from. Take special care to file the Complaint on the "entry date" you specified on the complaint when you first filled it out. Filing the complaint will cost you $195.00 payable by cash or check.
If at any point in time during this process the Tenant retains an attorney to represent him/her it is highly advisable that you retain counsel.
Go to Court on the Hearing DateGo to the Court on the Date of the Hearing. Bring all documentation described of in Step 1 with you. Explain to the clerk after they call your case that you want to attempt mediation. This gives you an opportunity to work something out with the tenant short of going in front of a Judge. As you may already know, the laws in Massachusetts are very favorable to tenants. It may be preferable to come to an agreement before going in front of the Judge. A mediator may be available on the day you go to Court. Explain to the mediator that you are evicting only for non-payment. Though it is hard to do so, keep your cool during mediation. Possible agreements you may enter into include agreed-upon move out dates, payment plans, or a combination of both.
If you go in front of the Judge, explain that you are evicting for non-payment of rent and this reason only. (If other reasons exist for eviction, consult with an attorney prior to beginning this process.)
Obtain Execution, Levy by means of ConstableIf judgment is granted in your favor you can not do anything to get your apartment back until you received a document from the Court called "Execution for Possession." Courts usually issue the Execution 10-days following entry of Judgment. Some busier District Courts do not issue this automatically and requests need to be made to the clerks for prompt issuance.
After receiving the execution, deliver it to a Constable. The Constable will give your tenant a time period to move out. If they fail to do so, they are authorized by law to physically remove your tenant and their belongings. Hopefully, for your wallet's sake, your tenant will have abandoned the premises by this point because you will have to pay the Constable for this process which is very expensive (moving trucks, movers, and storage involved).
After they have been moved out, change the locks, repair, and attempt to re-rent your unit.
If you lostDon't despair. Seek out the aid of a local attorney familiar with Landlord-Tenant Law.
If there is one thing you should take away from this guide, it is this: Do not attempt to go this alone if the Tenant retains an attorney. Also, do not be afraid to contact an attorney to discuss the matter prior to starting this process. Many are willing to help you over the phone with brief free consultations.
Also, do yourself a big favor and join a local chapter of the Massachusetts Rental Housing Association. The dues are minimal ($50 a year) and the wealth of knowledge you'll gain by being a member will become apparent at the first meeting you attend.