In Massachusetts steps that can be taken by a Landlord to evict a tenant for non-payment.
Massachusetts Law states that it is commonly known that an eviction is the process taken by a landlord to obtain a court order to remove a tenant and other occupants from a rental property. What is not commonly known is how to properly execute an eviction.
Legal term for eviction is called Summary Process and landlord must adhere to statutory requirementsFirst, the landlord must serve the tenant with a Notice To Quit. An effective notice to quit is in writing, with clear and unambiguous language, stating that the tenancy has been terminated and demanding that the tenant vacate the premises within A stated amount days for failing to pay rent. The notice to quit should include the past amount due, be dated and signed and most importantly served upon the tenant.
If after 14 days the tenant has not vacated the premises, the landlord has the constable serve the tenant with a Summons and Complaint.
After 7 days but not longer than 30 days and always on a Monday, the landlord then files the Summons and Complaint with the appropriate court. This is referred to as Entry Day. The filing must include the summons and complaint along with a copy of the notice to quit and return of service notification from the constable as proof that the tenant properly received the notice to quit and the summon and complaint.
The tenant has until the following Monday to answer the summons and complaint. This is called Answer Day. The tenant*s answer is filed with the court and served upon the landlord. The tenant may file a motion for a late answer, which would result in a one week continuance.
Next is Trial Day, which is always the next Thursday after Answer Day unless the tenant requests disThe landlord then has 10 days to respond to discovery resulting in an automatic two week postponement of the trial.
At trial the landlord will have the burden to prove by a fair preponderance of evidence that:
1. the landlord has a superior right of possession by showing ownership of the premises;
2. evidence of a tenancy such as a lease and what type of tenancy i.e. term of years, tenancy at will;
3. termination of the tenancy by presenting the notice to quit, summons and complaint, and proof of service;
4. reason for the termination such as how much is owed in back rent and when it was due.
The tenant has several defenses available, including jurisdictional, procedural, equitable, and statutory defenses.
Next, the court will issue its judgment. Should the landlord prevail, the judge writes the decision and files it with the court. The court sends the decision out to the landlord and the tenant. From the time of judgment, the tenant has a right to appeal the decision within 10 days. After the appeal period has expired, if there is no notice of appeal, the landlord may request, in writing, the Execution for Judgment.
The execution order is mailed out by the court. Massachusetts General Law Chapter 239 section 3 requires strict compliance with the execution or levy will be subject to cancelation. For example, if the tenant offers to pay in full and the landlord takes the money, the levy is canceled. Only the sheriff may carry out the execution if the tenant still refuses to vacate. The sheriff must hire movers and acquire a storage unit for three months, move the tenant*s belongings and change the locks, all at the landlord*s expense. The sheriff must give the tenant 48 hours notice of the levy and must be scheduled while the court is open. Furthermore, the levy must occur within 90 days of judgment.