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					                          EVICTIONS IN MASSACHUSETTS

                                 By Denise L. Page, Esq.
                                 Barron & Stadfeld, P.C.
                       50 Staniford St Ste 200, Boston, MA 02114
                                     (617) 723-9800


       Evictions in Massachusetts are governed exclusively by statute. There is no

common law eviction, and there is no self-help eviction in Massachusetts.      Previously, a

landlord could utilize self-help to evict a tenant who was utilizing the premises for illegal

purposes. Now, pursuant to M.G.L. Ch. 179 § 13 even under these circumstances the

landlord must seek court intervention and permission to evict a tenant when premises are

being utilized by a tenant for illegal purposes.

       When the premises are being used for illegal reasons, the landlord does have the

option to either commence an ordinary eviction action or to seek a declaratory judgment

from the appropriate district, superior, or housing court. After notice and hearing, the

court may issue injunctive relief for the landlord to have immediate possession or issue

an execution for possession "to be levied upon forthwith."

       All evictions have two components: termination of the tenancy and, if the tenant

does not vacate voluntarily, judicial action for possession and damages. The court action

for eviction is known as "summary process," a procedure originally intended to be speedy

and designed to short-circuit cumbersome judicial proceedings. However, subsequent

common law and legislative enhancement of tenants' substantive and procedural rights,

which includes the right to a trial by jury for a tenant often means that the eviction

procedure is no longer "summary."


                                              1
   I. NOTICE TO QUIT

       Termination of the tenancy must be completed prior to the service of an eviction

complaint upon a tenant by virtue of a Notice to Quit. M.G.L. Ch. 186 § 12. There are

two types of tenancies: a tenancy held pursuant to a lease and a tenancy at will.

       1.      TENANCY AT WILL

       By definition, a tenant at will is a tenant residing on the landlord's premises

without benefit of a lease. Nevertheless, the tenant has an interest in the rental property

granted by the landlord and his rental estate must be terminated before an eviction can be

commenced in the Court.

       A.      Termination of Tenancy At Will

       a.)     No Fault Termination. To terminate the tenancy at will when the landlord

seeks to end the tenancy for reasons unrelated to fault on the part of the tenant, the

landlord may send the other a full rental period notice (at least 30 days) indicating their

intent to terminate the tenancy at the end of that rental period. M.G.L. Ch. 186, § 12.

(see 30 day Notice to Quit annexed as Exhibit A). The Notice to Quit must encompass a

full rental period. M.G.L. Ch. 186 § 12. The tenant at will may also terminate the

tenancy with a full rental period notice to the landlord of their intent to end the tenancy.

         The notice should state the reason for termination, even if it is only that the

landlord is exercising his right to end a tenancy at will. Unlike the fourteen-day notice,

the termination date of a tenant at will other than for non-payment must be the last day of

a rental period.

       M.G.L. Ch. 186, § 12 also provides for the landlord to raise the tenant's rent or to

                                              2
convert the tenant at will to a tenant under a lease:

       Such written notice may include an offer to establish a new tenancy for the same
       premises on terms different from that of the tenancy being terminated and the
       validity of such written notice shall not be affected by the inclusion of such offer.
       By accepting such an offer the tenant simultaneously terminates the old tenancy
       and establishes a new one under the new terms. If the tenant rejects the offer, the
       original tenancy still terminates, but no new tenancy begins. The landlord has
       established his right to proceed with summary process and may evict the tenant if
       he fails to vacate at the end of the notice period. The tenant is obligated for rent
       during this period pursuant to M.G.L. ch. 186, § 13.

       Pursuant to M.G.L. Ch. 186, § 13, every tenant is obligated to pay for the time

that the tenant occupies the premises after tenancy is terminated by Notice to Quit, until

the tenant vacates. The landlord should seek compensation for “use and occupancy” for

this period at the fair market rental value at the eviction hearing. The landlord should

present a Motion to Amend the Account Annexed on the day of the scheduled eviction,

requesting use and occupancy from the tenant up to the hearing date.

       b.)     Fault based Termination.

       If the tenant at will has not paid rent, then a Notice to Quit for Non-Payment of

Rent should be served. (See 14 day Notice to Quit attached as Exhibit B). This Notice to

Quit is a fourteen day notice, and does not need to encompass a rental period.

       A tenant at will who is being evicted for failure to pay rent has a statutory right to

cure his default and to retain his estate. The statute provides in pertinent part:

       Every notice to determine an estate at will for nonpayment of rent shall contain
       the following notification to the tenant: 'If you have not received a notice to quit
       for nonpayment of rent within the last twelve 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 ten days after your receipt of this notice. M.G.L. Ch
       186, § 12.

       Omitting this quoted notification will not void the Notice to Quit. However, it will

affect the time within which the tenant will have a right to cure by paying his rent late. If

                                               3
the notification is omitted the cure period "shall be extended" from ten days until the day

the answer is due in any court action by the landlord to recover possession of the

premises. If this happens and it takes nearly two months before the Summons and

Complaint is filed, the tenant can wait until the answer date to pay the rent and will still

defeat the landlord's action for possession.

       When the tenant is being evicted for failure to pay rent, the tenant has a right to

cure the default by tendering the overdue rent. The tenant can only exercise this cure-

right once in a twelve-month period, so a subsequent failure to pay before such period

runs will not give rise to any subsequent such right. Also, for both kinds of tenancy, if

non-payment is due to the fault: of the federal government, the commonwealth or any

municipality, or any departments, agencies or authorities thereof, in the mailing or

delivery of any subsistence or rental payment, check or voucher other than a salary

payment to either the tenant or the landlord, the court in any action for possession shall

continue the hearing not less than seven days in order to furnish notice of such action to

the appropriate agency and shall, if all rent due with interest and costs of suit has been

tendered to the landlord within such time, treat the tenancy as not having been

terminated.

       Because the notice period begins to run on the date the tenant receives the notice,

it is the landlord's burden to prove the date of receipt. Ryan v. Sylvester, 358 Mass. 18,21

(1970); U.S.P.R. 2(d)(2). The landlord can accomplish this by delivering the notice in

hand and having the tenant sign a copy indicating the date of receipt, by having a

constable or sheriff serve the notice and make return of service, or by certified mailing of

the notice with a signed return receipt. Because the post office does not always obtain the

signed receipt, certified mail service is the poorest choice. Even more troubling, merely

                                               4
by refusing to accept the certified letter, the tenant can prevent service, and thereby

potentially defeat the entire eviction action. The landlord should not rely upon adequate

service until proof is received by the landlord that the notice was served or received by

the tenant. Rule 2(d)(2) requires that proof of receipt be filed with the summary process

Summons and Complaint. U.S.P.R. 2(d)(2).

       TIP: When the tenant at will is in arrears in rent, but has not received a Notice to

Quit in the last year, and the landlord does not want the tenant to have a right to cure the

non-payment, it might be a better strategy for the landlord to terminate the tenancy with a

simple 30 day Notice to Quit as attached Exhibit A, which does not specify the fault basis

for the eviction, but merely seeks to terminate the tenancy at will.

       Also, when the tenant has engaged in conduct which the landlord considers to

violate the tenancy, the landlord again may decide not to specify the grounds of the

“fault” of the tenant in the Notice to Quit or the Summary Process Complaint since proof

of the tenants’ conduct might be a difficult matter to prove at an eviction hearing, and the

possibility exists that the eviction would not be successful if the landlord does not prove

the “fault” conduct of the tenant.

       The only disadvantage to the landlord in not citing the fault basis for the eviction

proceeding in the Notice to Quit and the Eviction Complaint is that M.G.L. Ch. 239, § 9

provides for a stay of execution for up to six months for those tenants who are evicted

through no fault of their own.

B.     Termination of Lease Tenancies

       a)       No Fault Terminations

       A leasehold tenancy is one in which there is a written rental agreement between

the landlord and the tenant which indicates the terms of the agreement between the

                                              5
landlord and the tenant. When a landlord wishes to terminate the tenancy of a tenant with

a Lease, the terms of the Lease will control. A tenant with a Lease who has not violated

the Lease may not be evicted until the term of the Lease has expired.

       However, when the landlord has advance notice that the tenant will not vacate at

the end of the lease term, the landlord may invoke the provisions of M. G. L. § 239, § lA,

in order to recover possession before the end of the term. Not all residential leasehold

tenancies qualify. The tenancy must be established by written lease providing for a

tenancy of at least six months duration, and the lease must contain a specific termination

date. To comply with this statute, the landlord is required to serve and to file a copy of

the Lease, fully executed by all parties, with the Summary Process Summons and

Complaint. The landlord must follow the statute precisely. The Summons and Complaint

cannot be served before the latest date permitted by the lease for either party to notify the

other of his intention to renew or extend the rental agreement. The landlord cannot serve

process any earlier than thirty days before the end of the lease term. The landlord is

required to notify all defendants by registered (not certified) mail, and the mail

notification must be mailed not later than twenty-four hours after the action is initiated.

At trial, the landlord has the burden of establishing "substantial grounds upon which the

court could reasonably conclude that the defendant is likely to continue in possession of

the premises at issue without right after the designated termination date." These

"substantial grounds" must be specified in the Summary Process Summons and

Complaint. If the landlord prevails, an execution for possession may issue as early as the

day after the end of the lease term. This procedure is especially useful if the landlord has

committed the premises to another tenant immediately following the end of the existing

tenancy or when the premises are being sold to a third party.

                                             6
        b)      Fault Based Terminations.

1. Non-payment of Rent. If the lease tenant is being evicted for non-payment of rent,

then that tenant receives the same fourteen day Notice to Quit that the tenant at will

receives, unless the terms of the Lease specify that the tenant is entitled to a longer notice

period. However, pursuant to the statute, the period of the Notice to Quit cannot be less

than fourteen days. M.G.L. Ch. 186, § 11.

        The tenant with a Lease may cure the non-payment of rent on or before the day

the answer is due, in an action by the landlord to recover possession of the premises, by

offering to, or actually paying to the landlord or to his attorney all rent then due, with

interest and costs of suit.

        Interestingly, unlike the obligation to a tenant at will, the landlord is not required

to communicate to the delinquent tenant under a Lease of their rights under the statute, in

the Notice to Quit. In fact, if the landlord includes the "right to cure" language in a

Notice to Quit that mimics the cure language that is required to be given to tenants at

will, then the Notice to Quit may be held to be "facially defective and cannot support a

summary process action for possession." Collins Investments, LLC, v. Yveline Lovinsky,

Suffolk Housing Court Summary Process No. 99/0/2/4/3/6, Order To Dismiss, dated June

30, 1999, Winik, A.J., quoting Springfield II Investors v. Marchena, Hampden Housing

Court, 89-SP-1342-S (Abrashkin, J., February 1990); Oakes v. Monroe, 62 Mass. 282

(1851). This is because the time to cure for tenants at will does extends only for ten days

after receipt of the Notice to Quit, not up to the date of that the tenant’s Answer is due in

court as it does for a tenant with a Lease. Therefore, it is clearly better not to attempt to

explain the rights of the tenant in the notice to quit for nonpayment served upon a tenant

with a lease.

                                              7
C.     Potential Traps of Reinstatement

1.     Rental Payments After Service of Notice to Quit

       As explained previously, the tenant at will and tenant with a lease both have rights

to cure their non-payment of rent status, by payment in full of all rent due, or in the case

of the tenant with a lease, rent and legal costs, within either ten days of receipt of the

Notice to Quit for a tenant at will, or by the due date of the Summary Process Answer, for

a tenant with a lease. But what should the landlord do if the tenant being evicted offers to

pay some rent, or tenders a rental payment after any right to cure the non-payment has

expired? The landlord should be careful as to how any rental payments are accepted in

this instance, since some decisions have deemed an acceptance of rent after the expiration

of the Notice to Quit, and the termination of the tenancy, to be a reinstatement of the

tenancy. Corcoran Management Co. v. Withers, 24 Mass. App. Ct. 736, 744 (1987) and

cases cited. The Corcoran court stated:

       Although it has long been the general rule that, if, after the effective date of a
       valid notice to terminate a tenancy, the tenant tenders, and the landlord accepts, a
       payment as rent in advance for a period after the termination of the tenancy, such
       payment and acceptance are prima facie evidence of the landlord's waiver of his
       right to recover possession unless he gives a new notice, it has also long been a
       part of the general rule that certain acts or conduct may prevent or negate the
       inference or presumption of such a waiver by the landlord.

        The landlord is entitled to be paid for use and occupation of the premises even

after the tenancy has terminated during the entire time the tenant remains in possession,

but he must take steps to protect himself from establishing a new tenancy by mistake.

       If payment is made by check, at a minimum the landlord should include a

qualified endorsement on the check which indicates that the check is "Accepted for use

and occupancy only, and with a reservation of rights to proceed with summary process."

Additionally, the landlord should consider an oral statement to the tenant at the time of

                                             8
payment that it is being accepted only for use of the premises, not as rent, and should

issue a separate written receipt to the same effect that the money is accepted for use and

occupancy and that the landlord does not waive the right to proceed with eviction. If the

payment is mailed in, the landlord should either serve or send a letter by regular and

certified mail to the tenant stating that the funds are accepted for use and occupancy only

and that the right to proceed with the summary process action is reserved. As set forth in

Corcoran:

        A tenant whose right to possession has been terminated by valid notice of the
landlord cannot unilaterally continue to send the landlord monthly rent payments and by
that alone prevent the landlord from prosecuting his summary process action.

Id. at 744-745. This is so even if the payments are made in advance.

2.     Defects in the Notice to Quit

       A defective Notice to Quit will not terminate the tenancy. Unfortunately, the

landlord may not realize that his notice is defective until after he has paid a filing fee and

incurred other expenses of litigation. There are a number of fatal mistakes that can occur.

As set forth above, the notice must contain an accurate date for terminating the tenancy.

In addition, if there is a reason for terminating the tenancy it must be specified with

sufficient particularity.   M.G.L. Ch. 156, § 11A.        Most importantly, if the notice

undertakes to explain to the tenant his legal rights, the notice must be accurate. Because

summary process is a statutory procedure and not a common law right, if the notice does

not terminate the tenancy, then the court lacks subject matter jurisdiction to hear an

eviction case. Commonwealth v. Chatham Dev. Co., 49 Mass.App.Ct. 525, 528 (2000).

       Technically, a defective notice does not reinstate the tenancy, since the tenancy

was never terminated. However, from the landlord's perspective the effect is the same:

the summary process suit must commence from the beginning with a new Notice to Quit

                                              9
which is not defective.



3.     Service Deficiencies for Notice To Quit

       a.) Failure to Prove Receipt of Notice by Tenant.

       In every case, the landlord is required to prove not only that the tenant received

proper notice but that the tenant received it in a timely manner. As set forth above, the

tenant is entitled to judgment for possession if the landlord fails to meet this burden.

Certified mail service is only effective if the landlord can actually file the certified mail

receipt with the tenant's signature with the Summary Process Complaint. Constable or

sheriff service is prima facie proof of the facts contained in the return of service.

Mass.Gen.L. ch. 41, § 94.

       However, it should be noted that the tenant may be still be able to rebut the

presumption that service occurred via the constable by testifying that he never received

the notice. The landlord may avoid this by causing the notice to be served in hand

directly, by accompanying the process server and witnessing delivery, or by speaking to

the tenant after service of the notice to confirm its receipt. The landlord could then testify

to these facts in the summary process hearing to meet the burden of proof that the tenant

received the Notice to Quit.

       As in the case of a defective notice, failure to prove receipt of notice will not

reestablish the tenancy, but it will prevent the tenancy from terminating, and therefore the

eviction process must be started anew.

b.)    Untimely Service of Summons

       Other than summary process actions commenced pursuant to M.G.L. ch. 239, §

lA, no eviction can go forward unless the tenancy is terminated before the summary

                                             10
process action begins. The summary process action is not commenced on the date of

filing, but on the date the Summary Process Summons and Complaint and associated

papers are served on the tenant (subject to timely and proper filing). U.S.P.R. 2,

Commentary. If service of process is made before the termination date, the case fails and

the tenancy continues.

       A common source of confusion often arises when a landlord seeks to increase the

rent of a tenant at will or when the lease term of tenant under a lease is about to end. If

the landlord does not send the tenant a notice that the current tenancy is being terminated,

and a new tenancy may only be established by sending in the increased rent, then the

rental increase is not binding. Therefore, if the tenant continues to send the old rental

payment, instead of the new increased rent, the landlord may not terminate the tenancy

with a fourteen day notice. The tenant is not required to pay any rent increase until his

old tenancy has been terminated and a new tenancy at the higher rate established. This is

not accomplished by a unilateral notice to the tenant that rent is going up. Accordingly,

when the tenant declines to pay the higher rent, there is no "non-payment." In this

situation, the landlord must terminate the tenancy with a thirty-day or rental payment-

period notice (whichever is longer) and include an offer to establish a new tenancy at the

higher rate. If the tenant does not accept the offer, the landlord may then proceed with

summary process. This action would be without fault of the tenant, so the tenant could

request a stay of execution for up to six months (or, if the tenant were disabled, one year).

M.G.L. ch. 239, § 9. If the tenant does accept the offer, then the landlord may serve a

fourteen-day notice if the tenant thereafter refuses to pay the higher rent.

D.     Holdover Tenants

       A holdover tenant is one who continues in possession of the premises after the

                                             11
lease term has ended as specified in the lease, or a tenant who occupies the premises as a

former owner after foreclosure. If the lease contains a clause providing for automatic

renewal on a month-to-month basis after its term ends, then the tenant is not holding

over, and a Notice to Quit will be required to terminate the rental estate. But unless the

landlord waives his rights and enters into a new tenancy with a true holdover tenant, the

tenant holds the status of a tenant at sufferance. The landlord may regain possession by

summary process directly, i.e., without resort to the notice requirements of M.G.L. ch.

186. M.G.L. ch. 239, § 1. It will still require a summary process action in court to

remove the holdover tenant and regain possession, but no notice of termination applies

per U.S.P.R. 2(d)(2). Nevertheless, it still may be good policy to serve a Notice to Quit as

many judges are reluctant to enter judgments for landlords who have not served the

tenant with a Notice to Quit. The landlord is also required to state in concise, untechnical

form and with sufficient particularity and completeness the reason for the eviction action

in the Summary Process Complaint in order to enable the tenant to understand the reasons

for the requested eviction and the facts underlying those reasons. U.S.P.R 2(d).

E. Avoiding Illegal Evictions

       All self-help evictions are illegal in Massachusetts. M.G.L. ch. 184, § 18. The

landlord who employs this tactic faces both civil and criminal penalties:

       [A]ny lessor or landlord who directly or indirectly interferes with the quiet
       enjoyment of any residential premises by the occupant, or who attempts to regain
       possession of such premises by force without benefit of judicial process, shall be
       punished by a fine of not less than twenty-five dollars nor more than three
       hundred dollars, or by imprisonment for not more than six months. Any person
       who commits any act in violation of this section shall also be liable for actual and
       consequential damages or three month's rent, whichever is greater, and the costs
       of the action, including a reasonable attorney's fee….

M.G.L. ch. 186, § 14. If a tenant has been deprived of possession other than by judicial

process, the tenant has a right either to recover possession of the premises or to terminate
                                            12
the rental agreement. Regardless of the choice the tenant makes, he also recovers three

months' rent or, at his election, three times the damages the tenant sustained, plus the cost

of the lawsuit, including reasonable attorney's fees. M.G.L. ch. 186, § lSF.

       If the landlord engages in a self help eviction and then leases the premises to

another party, or sells the property, there could be multiple causes of action upon which

the prior tenant could recover possession and money damages. Moreover, a landlord who

owns or manages several rental properties, could be found to be in the business of renting

to tenants and might be subjected to double or triple damages and attorney's fees under

the Consumer Protection statute. M.G.L. ch. 93A. A landlord who is not savvy as to the

breadth of the eviction process and laws should hire an experienced landlord/tenant

attorney.

       F. Retaliation.

       While the landlord can terminate an at-will tenancy without cause, he cannot

terminate it for an unlawful reason. Reprisals against tenants for exercising tenant's rights

are such reasons. M.G.L. ch. 186, § 18; ch. 239, § 2A. In addition, evictions because of a

tenant's age, sex, race, color, religion, national origin, ethnicity, sexual preference,

disability, marital status, receipt of government assistance, or parentage of children is

prohibited. M.G.L. ch. 151B. Violation of this statute and its federal counterpart can

result in compensatory and punitive damages, costs, and attorney's fees. If the tenant

might qualify as a member of a protected class, the landlord should proceed carefully to

document and articulate the reasons for the eviction.

G. Conclusion

       In order to successfully complete the eviction process in a residential eviction the

landlord must terminate the tenancy and then file a complaint to regain possession of the

                                             13
premises. Most evictions are for failure to pay rent. Tenants evicted for non-payment

must be given written notice providing for the termination of the tenancy within fourteen

days of receipt. If the landlord includes a reference to the tenant's rights in the notice

letter, then the reference must be accurate or the notice will not terminate the tenancy. If

the landlord is ending the tenancy for a reason other than refusal to pay rent, then the

landlord must still give the tenant written notice except in the case of a holdover tenant.

The notice period is longer, however. The entire process is governed by statute and the

Uniform Summary Rules. Landlords must be aware of when tenancies once terminated

may be reinstated. Particularly troublesome areas are the contents of the notice letter, the

failure to obtain proof of delivery of notice, and service of process before the tenancy has

been properly terminated. It is also important for landlords to avoid illegal evictions and

to avoid the appearance of discrimination or retaliation by documenting the reasons for

the eviction.



                           THE SUMMARY PROCESS TRIAL

          If the tenant remains in possession after the Notice to Quit expires, the landlord

must proceed with court action by serving a Summary Process Complaint upon the

tenant.    The procedure for prosecuting summary process actions is set forth in the

Uniform Summary Process Rules ("U.S.P.R."), which are a subset of the Uniform Trial

Court Rules, Rule I. The U.S.P.R are attached hereto as Exhibit C.

1. Choice of Forum

          The venue for summary process is the geographic area in which the rental

property is located. Summary process actions can be filed in either the District Court

Department, or the Boston Municipal Court Department, the Superior Court Department,

                                              14
or the Housing Court Department. M.G.L. ch. 239, § 2; ch. 185C, § 3.

       In Barnstable, Berkshire, Bristol, Dukes, Essex, Franklin, Hampden, Hampshire,

Middlesex, Nantucket, and Norfolk counties, the District Courts now have exclusive

original jurisdiction for summary process actions. St. 1996, Ch. 358, § 4, as amended by

St. 2000, Ch. 142, §§ 4&5, and St. 2002, Ch. 70, §§ 4&5.

a.     District Court Department with Trial de Novo

       In most District Courts and in the Boston Municipal Court, the Summary Process

Complaint is completed efficiently and in a timely manner, since there is no entitlement

to jury trial. The losing party in the non-juried District Courts and the Boston Municipal

Court, however, can "appeal" for a trial de novo in the Superior Court. As a de novo trial,

law and facts will be determined anew. M.G.L. ch. 239, § 3.

       a) Bond Requirement.

       The tenant must file an appeal bond in the amount of the landlord's judgment plus

estimated intervening rent and court costs, unless the tenant can prove to the court that he

or she is indigent, and has a likelihood of success on the merits of the appeal. If the

landlord appeals, the bond requirement is $100.00. M.G.L. ch. 239, § 5. (Refer to

attached a sample Motion to Set Bond as Exhibit D.) This is a very important step in the

process, since failure by the tenant to pay the bond will cause dismissal of the appeal

within 30 days after the entry of the Judgment. Id. If the tenant pays the bond, the

Superior Court trial de novo can add several months up to a year to the eviction process,

and the tenant may then still appeal directly to the Appeals Court. M.G.L. ch. 211A, §

10.

b.     Housing Court and Superior Court Department

       If the landlord commences the summary process action in the Housing Court

                                             15
Department or in the Superior Court Department in those counties where the District

Court does not have original jurisdiction preclusive of the Superior Court, the facts will

be found by the fact-finder only once. These are jury sessions, and either party may

demand a trial by jury. Further appeal would after jury trial would be to the Appeals

Court. M.G.L. ch. 239, § 5.

c.     District Court Department without Trial de Novo

       Tenants can obtain jury trials in the Worcester District Court (Central Division

only) and in Barnstable, Berkshire, Bristol, Dukes, Essex, Franklin, Hampden,

Hampshire, Middlesex, Nantucket, and Norfolk District Courts. M.G.L. ch. 218, §§ 19A

& 19B; St. 1996, Ch. 358, as amended by St. 1998, Ch. 157,

St. 2000, Ch. 142, and St. 2002, Ch. 70.

       In Barnstable, Berkshire, Bristol, Dukes, Essex, Franklin, Hampden, Hampshire,

Middlesex, Nantucket and Norfolk counties, the District Court Department has original

jurisdiction. If the landlord selects the District Court in one of these counties, either side

may claim a trial by jury. The jury in these cases consists of six persons, since it is a civil

not a criminal proceeding. The jury trial procedure in these counties eliminated de novo

appeal to the Superior Court. Appeal is to the Appellate Division of the District Court,

and "is restricted to issues of law properly raised in the trial court and preserved for

appellate review in the form of the trial court's rulings." Drucker v. Drucker, 1997

Mass.App.Div. 147, 148 (1997).

d.) Differences of Court Forums.

       Today, there is very little, if any, difference between the equity powers of the

District Court and Boston Municipal Court Departments and those of the Superior Court

and Housing Court Departments with respect to summary process cases. Since 1988,

                                              16
District Courts have had the same equitable powers and jurisdiction as is provided for the

division of the housing court department pursuant to section three of chapter one hundred

and eighty-five C. M.G.L. ch. 218, § 19.

        Since 1995, the District Court Department has had full equitable power to assist a

landlord in evicting a tenant for certain illegal or nuisance conduct. M.G.L. ch. 139, § 19.

Those District Courts with jurisdiction preclusive of the Superior Court have equitable

authority fully equal to that of the Superior Court. For many years, district courts have

had power to grant injunctive relief in housing cases. M.G.L. ch. 186, § 14 and ch. 218, §

19C. District courts have the authority to order that funds the tenant has paid into court be

expended for repair of the premises and to appoint a receiver to supervise this procedure.

M.G.L. ch. 239, § 8A. In addition, counterclaims taken pursuant to M.G.L. ch. 186, § 14,

can seek equitable relief which the District Court then has power to grant. M.G.L. ch.

186, § 14. According to the U.S.P.R. 9: "[A]ll courts have the authority to issue

injunctive relief in appropriate cases." If the basis for the eviction is illegal conduct, the

landlord may avoid summary process altogether by seeking declaratory relief in any of

the summary process courts. M.G.L. ch. 139, § 19. While this procedure is not ex parte,

it may still be rapid. The court may issue any appropriate equitable relief including

"granting the lessor or owner possession of the premises" and "issuance of an execution

for possession of any such premises to be levied upon forthwith."

   2.    Damages.

        The landlord must make a decision as to whether to claim damages for back rent

and/or for use and occupancy of the premises after the termination of the tenancy in the

Summary Process Summons and Complaint he files with the court. Failure to do so does

not bar a later action. M.G.L. ch. 239, § 2. Jinwala v. Bizzaro 24 Mass.App.Ct. 1,7, n.4

                                             17
(1987). Generally, retaking possession is the more important issue in a summary process

matter. If there is little chance of executing on a money judgment cost effectively, it may

be wise to forego the money claim.

       The court does not have the authority to hear summary process actions for rent

only, if the tenant has already vacated the premises at the time of the hearing. Woodbury

v. Sparrell, 187 Mass. 426. In addition, there is no authority for the court in an eviction

hearing to consider claims that the tenant caused damage to the unit, except when there is

an issue as to the tenant’s entitlement to return of the security deposit. M.G.L. Ch. 186, §

15B.

   3. Jury Claim

       If the landlord has brought the case in a court where a trial by jury is available, a

decision must be made as to whether to waive the right to trial by jury. In almost every

instance, waiver of trial by jury will expedite resolution of the case. The tenant, of course,

may demand a jury trial, and there is no option on the part of the landlord to prevent a

jury trial if the tenant elects to claim one. However, the tenant must demand the right to a

jury trial in the summary process answer, which must be filed on or before the return day.

4. The Trial

       a. The Summons and Complaint

Unlike other civil actions, summary process requires the plaintiff to purchase a form, the

Summary Process Summons and Complaint, from the court in which the action will be

heard. U.S.P.R. 2(a). The form includes blanks for the plaintiff landlord to insert the

landlord's name, the tenant's name, the premises, any claim for rent, and the reason for

termination of the tenancy "in concise form and with sufficient particularity and

completeness to enable a defendant to understand the reasons for the request eviction and

                                             18
the facts underlying those reasons." U.S.P.R.2(d). (Refer to sample Summary Process

Complaint attached as Exhibit E.)

       On the Complaint form, the landlord must designate an "entry" date, which is the

date that the Summary Process Complaint is entered by the Court. The entry date must

always be a Monday. The tenant must be served with the Complaint at least one week

prior to the entry date. The date that the tenant’s "answer" date is due is the Monday after

the entry date. This is the date by which the tenant must both file with the court and

serve an answer upon the landlord. The hearing or trial is scheduled initially for ten days

after the entry day, and is always on a Thursday. Each court with Summary Process

Summons and Complaint forms also provides a detailed instruction sheet setting out the

relationship of the dates appropriate to it. In choosing the entry date it is important to

note that the defendant cannot be served more than thirty days and less than seven days

before the case is entered. In addition, the summary process action is deemed commenced

on the date the tenant is served rather than the date of entry. So, the tenant cannot be

served until after the Notice to Quit expires. U.S.P.R. 2(b). Early service does not impart

subject matter jurisdiction to the court and will result in automatic dismissal.

Commonwealth v.Chatham Dev. Co., 49 Mass.App.Ct. 525, 528 (2000), quoting

Hodgkins v. Price, 137 Mass. 13, 18 (1884) ("The process [action] cannot be

brought...until fourteen days' notice to quit has been given"). On or before the entry date,

the landlord must file in the court the original summons and complaint with proof of

service, a copy of the notice to quit with proof of delivery, and the entry fee charged by

the court.

b.     Transfer

       If the action is commenced in the District Court, any party may transfer it to the

                                            19
Housing Court (if the premises are in its jurisdiction). M.G.L. ch. 185C, § 20. The party

seeking transfer must complete and file a transfer form in both courts. U.S.P .R. 4. The

forms must be filed no later than the day before the hearing date. However, if a party

does not timely file the transfer forms, he may later transfer on motion and a showing of

cause, subject to the discretion of the District Court. Any demand for jury trial in the

Housing Court must be made with the request for transfer. U.S.P.R. 8.

       Once a request for transfer is received by the District Court, a delay of at least two

weeks usually occurs before the Housing Court hearing is scheduled by that court.

c.     Motions

       1)      Pretrial

       Pretrial motions must be filed and served no later than the first Monday after the

entry day, i.e., the same day the tenant's answer is due. U.S.P.R. 6. Pretrial motions are

heard on the original trial date. Such motions include a Motion for Summary Judgment. If

a party misses the filing date, a motion may be filed for an enlargement of time to file

late. If the tenant files and serves a Motion to Dismiss before the entry date, a hearing

may be requested on the "Thursday (or Friday or Monday or second Tuesday or second

Wednesday) following the entry date." There is no authority for pre-trial attachments in

summary process. Poole v. Burns, 1993 Mass.App.Div. 199 (1993).

       2)      Other Motions

       Any motion that is not filed and served in accordance with the pretrial motion

procedure is discretionary. U.S.P.R. 6. This would include all other written or oral

motions. The court is within its discretion to decide the motion immediately, to refuse to

hear the motion at all, or to set it down for later hearing. As set forth earlier, Motions to

Set Bond after the tenant claims an appeal can be critical in preventing a lengthy appeal

                                             20
process, since if the tenant does not pay the bond within 30 days after the entry of the

Judgment, M.G.L. Ch. 239, § 5, the appeal is dismissed and the landlord is entitled to

possession

d.        Discovery

          Either party may engage in discovery by serving and filing demands no later than

the first Monday after the entry date, which is the date the tenant’s answer is due.

U.S.P.R.7. Discovery can include requests for interrogatories (no more than 30)

admissions, and production of documents (no more than 30) without further permission

of the court. Permission of the court must be obtained to conduct depositions in summary

process matters, which would likely only be helpful and necessary in the event that the

tenant has filed substantial counterclaims or defenses. Cite.

          Additional discovery can be obtained on motion and a showing of good cause.

Good cause is deemed established if the discovery is in response to an answer or

counterclaim. Responses are due ten days after receipt of the requests. U .S.P .R. 7( c).

          Discovery demands made by the tenant will automatically postpone the original

trial date for two weeks. U.S.P.R. 7(b). The party seeking discovery must include

notification in writing to the opposing party of the rescheduled trial date. Form discovery

is made available to tenants by the court, in which the tenant may simply check

applicable requests for documents or interrogatories.

          If timely responses are not forthcoming, the party seeking discovery must file a

motion with the court seeking to compel the responses, and for either continuance or

dismissal based upon the failure to answer. U.S.P.R.7(d).

e. Summary Process Trial

     1.   When Both parties Appear and Tenant has filed a timely Answer.

                                             21
        If the tenant has filed and served an answer and both parties appear at the call of

the list, trial will proceed. Many courts now maintain mediation programs which assign

mediators to confer with the parties to explore whether a voluntary resolution of the

eviction matter is possible.

        If mediation fails or is rejected, the trial will then proceed.



   2.   When No Timely Answer filed by Tenant.

        If the tenant has failed to file or to serve an answer in a timely basis, but appears

on the trial date, there will be no default and, at the landlord's option, either the trial date

will be postponed one week or the trial will go forward on that day.

   3. When Tenant Fails to Appear on Trial Date.

        Whether the tenant has filed an answer or not, if he fails to appear but the landlord

does appear, the landlord will receive a Judgment for possession and for the Account

Annexed by default. However, on many occasions the tenant is simply late for the court

hearing, and upon his or her arrival at court, the tenant is given a Motion to Remove

Default form to fill out at the clerk’s office, which is typically scheduled for the

following week.      In this practitioner’s experience, Motions to Remove Default are

typically granted by the court, so it sometimes makes sense to linger at the courthouse for

a while on the date of the initially scheduled hearing to see if the tenant appears. If the

tenant does appear, it will save a week to simply confer with the clerk as to whether the

Motion to Remove the Default might be heard immediately by the court, and the eviction

hearing may then proceed on that day.

   4. When Neither party Appears.

        If neither party appears, the case will be dismissed seven days later, unless one of

                                               22
the parties requests a new trial date within that time. If the tenant files an answer and

appears, but the landlord does not, the case will be dismissed. If the tenant does not file

an answer, but appears and the landlord fails to appear, the trial will be postponed one

week. U.S.P.R. 10(a)&(b). It behooves the landlord to appear. Dismissal or default can

be removed sua sponte or on motion at any time up to the entry of judgment. U.S.P.R.

10(c).

5.       The Landlord's Case at Trial

         The landlord must demonstrate to the court the following elements:

---the type of tenancy,

---the reason for eviction, i.e. the tenant's breach of the rental agreement

---the tenancy was terminated via a Notice to Quit which was properly served upon the

tenant. If the tenancy is pursuant to a lease, the landlord should introduce the lease. If it is

a tenancy at will, the landlord can testify as to the terms of the oral agreement. The

landlord may also be able to introduce documentary evidence of the tenancy, such as

photocopies of cancelled checks or written correspondence with the tenant. With regard

to the tenant's breach, the landlord's or the tenant’s oral testimony and introduction of any

supporting documents should establish these facts. Finally, the landlord should introduce

the Notice to Quit he served upon the tenant with whatever proof of receipt he has. At

this point, the landlord should reserve his right to present rebuttal evidence and sit down.

The burden now shifts to the tenant to present a defense.

         A.     Tenant Defenses to Landlord’s Complaint

         Pursuant to M.G.L. Ch. 239, sec. 8A, in any eviction the tenant is entitled to raise,

by defense or counterclaim, any claim against the landlord relating to or arising out of the

tenancy, or occupancy by breach of warranty, breach of any material provision of the

                                              23
rental agreement, or a violation of any other law.

     However, if the tenant alleges as a defense or counterclaim any allegation concerning

the condition of the premises or the services provided in connection with the premises,

the tenant is not entitled to relief unless the tenant is able to show that:

     a. the landlord knew about the alleged conditions before the rent was in arrears;

     b. the landlord cannot prove that the tenant caused the conditions complained about;

     c. the premises is not a hotel or rooming house;

     d. the landlord cannot demonstrate that the condition may not be remedied unless the

        premises were vacated.

1.      The Answer

        The Summary Process Summons and Complaint specifies the date that the

tenant's Answer is due. It is calculated as the Monday before the original trial date.

Although the Answer may be filed in hand or by mail, filing is not complete until receipt

by the court. In summary process, service must also be made upon the landlord or the

landlord's attorney by the Answer date. It, too, is not complete until it is received. There

is an official form for the Summary Process Answer, but it need not be used. The tenant

must caption the pleading Summary Process Answer and must insert the original trial

date below the caption. U.S.P.R. 3.         The tenant must admit or deny any disputed

statements of fact which the landlord sets forth in the Complaint. The tenant may then list

any Counterclaims and Affirmative Defenses he may have. If the tenant is being evicted

without fault, then the tenant may be entitled to a stay of execution for up to six months

(and, in the case of a disabled tenant or one who is sixty or older, the court may extend

the stay of execution up to one year). M.G.L. ch. 239, § 9. The tenant should request a

stay of execution in the Answer but this is not required in order for the Judge to grant a

                                               24
stay of execution.

2.     Counterclaims

       Counterclaims in summary process are not compulsory. M.G.L. ch. 239, § 8A;

U.S.P.R. 5. If the tenant wishes to raise them, he must file them with the Answer and

denominate them as Counterclaims. U.S.P.R. 5. In summary process, the landlord is not

required to plead in response to the Counterclaim. The Counterclaims permitted by

Section 8A apply to residential premises only. Because Counterclaims are not

compulsory, courts may sever them or grant continuances to allow them to be added after

the Answer has been filed. Permitted Section 8A Counterclaims may involve allegations

as to breach of warranty of habitability or fitness of purpose, breach of the right to quiet

enjoyment, breach of a material provision of the rental agreement, or violation of a law.

M.G.L. ch. 239, § 8A.

a.     Breach of the Rental Agreement

       As in any contract case, the tenant may raise violations of explicit clauses of the

lease as a defense against the landlord's claims that the lease has been breached. In

addition, in Massachusetts there warranties of quiet enjoyment and habitability are

implied in any residential agreement, even those that are oral.

       The tenant may raise Counterclaims for the breach of quiet enjoyment when the

tenant claims that he or she was subjected to interference by the landlord of their use of

the premises in some way, (such as continuous and/or unreasonable entries into the

tenant’s premises by landlord, or tenant’s being subjected to loud and disruptive noise

from neighbors or equipment) The tenant may even allege a claim for intentional

infliction of emotional distress against the landlord.

       The tenant may Counterclaim for breach of the warranty of habitability when the

                                             25
conditions of the rented premises violates the state Sanitary Code. Mass.Regs.Code title.

105, § 410.000 (attached as Exhibit F). The State Building Code, or any other by law,

rule or regulation. However, in order to succeed with a claim for breach of the warranty

of habitability, the tenant must prove:

        --premises were in violation of a law as set forth above;

        --and that the conditions that violate the law may endanger or materially impair

the health, safety or well-being of the occupant.

        If the tenant is able to prove that a condition of the premises violates the law and

that the conditions materially endanger the health or well being of the tenant, there is a

presumption that the tenant is entitled to a judgment on the counterclaim.

b.      Violation of Law

        In addition to violations of the Sanitary Code, the tenant may be able to

counterclaim for violations of the statutory regulation of leasehold estates [M.G.L. ch.

186, § I5B] including mishandling of security deposits, improper entrance onto the

premises by the landlord, failure to keep records, mishandling of the tenant's funds, etc.

Two statutes provide the tenant with a basis for Retaliation Counterclaims. M.G.L. ch.

186, § 18; ch. 239, § 2A. A tenant may also raise discrimination as a defense, or, if the

tenant has filed with the Department of Housing and Urban Development or the

Commission Against Discrimination, an affirmative Counterclaim. M.G.L. ch. 151B.

Protected classes include: national origin, ancestry, race, color, sexual orientation, marital

status, children, disability, or recipient of subsidy.

c.      Consumer Protection Act.

        In addition, the landlord may be exposed to counterclaims pursuant to the

Consumer Protection Act. M.G.L. ch. 93A. For multiple damages, the landlord's acts

                                               26
must be willful or knowing, but:

       The "willful or knowing" requirement of § 9(3), goes not to actual knowledge of
       the terms of the statute, but rather to knowledge, or reckless disregard, of
       conditions in a rental unit which, whether the defendant knows it or not, amount
       to violations of the law. see Heller v. Silverbranch Constr. Corp., 376 Mass.
       621,627 (1978). Grossman v. Waltham Chemical Co., 14 Mass.App.Ct. 932, 934
       (1982).

Montanex v. Bagg, 24 Mass.App.Ct. 9954, 956 (1987). If the landlord is familiar with the

premises, this is sufficient actual knowledge for liability for multiple damages. If the

premises are part of an owner occupied, two or three-family house and the landlord owns

or manages no other rental property, the landlord should defend on the basis that he is not

in commerce.

       The consumer protection statute, M.G.L. ch. 93A, is applied to “professional

landlords”, those who lease premises in the ordinary course of their business. York v.

Sullivan, 369 Mass. 157, 338 N.E.2d 341 (1975); Commonwealth v. DeCotis, 366 Mass.

234, 316 N.E.2d 748 (1974); Cornell v. Fairhaven Savings Bank, 10 Mass.App.Ct. 887,

409 N.E.2d 788 (1980).

3.     Affirmative Defenses

       a.      Procedural Errors

       The case may be dismissed if the landlord has failed to properly terminate the

tenancy. This would include the landlord's inability to prove actual and timely receipt of

the Notice to Quit, failure to terminate the tenancy on a date certain or on a rent day

(except for nonpayment of rent), omission in the Notice to Quit of any language required

by the lease or by law, or misstatement of the tenant's cure rights in the Notice to Quit.

The tenant has grounds for dismissal if the court lacks jurisdiction, if venue is improper,

if service of process is defective, or if filing took place before the term specified in the

Notice to Quit expired. Moreover, as suggested above, in a nonpayment of rent case the
                                             27
tenant can end the suit and cure his default by making timely payment.



       b.      Nonpayment and No Fault Cases

       M.G.L. ch. 239, § 8A, provides an incentive for landlords to comply with the

requirements of Massachusetts landlord-tenant law. This statute permits the tenant in a

nonpayment or no-fault case to raise any claim against the landlord relating to the

tenancy, property, or occupancy as a Defense or Counterclaim. These include claims for

breach of warranty or material provision of the lease or for violation of any law. A tenant

of a licensed rooming house must have been in occupancy for at least three months. If a

defense is based upon a breach of the warranty of implied habitability, strict liability is

imposed on the landlord without regard to the landlord's fault. Cruz Management Co. v.

Thomas, 417 Mass. 782, 791, n.9.

       c.      Rent Withholding

       If the premises are in violation of the state sanitary code, Mass.Regs.Code tit. 105,

§ 410.000, applicable building codes, or similar ordinances and regulations, and the

condition may impair the health, safety, or well-being of the occupant, the tenant is

entitled to withhold rent regardless of whether the landlord is at fault. M.G.L. ch. 239, §

8A. A tenant's obligation to pay full rent abates immediately upon the tenant's notifying

the landlord of a breach of the warranty of habitability. Boston Housing Auth. v.

Hemingway, 363 Mass. 184 (1973), although there should be proof of a written notice to

the landlord of the tenants intention to withhold rent. Boston Housing Authority v.

Hemingway, 363 Mass. 184, 293 N.E.2d 931 (1973). However, the landlord’s

knowledge of the defects in the premises is also sufficient for the tenant to withhold rent,

even if the landlord learns of the defects independent of the tenant. A tenant has an

                                             28
action in tort against the landlord who does not exercise reasonable care to correct the

unsafe condition. M.G.L. ch. 186, § 19. Unsanitary or unsafe conditions may also support

a claim by the tenant for damages based upon reckless infliction of emotional distress.

Simon v. Solomon, 385 Mass. 91 (1982).

       d.      Damages

       If the tenant meets the statutory requirements under this section, the landlord

cannot recover possession of premises. The court will order the tenant to pay into the

court amounts for use and occupancy of the premises less the amount awarded for

violations of the sanitary code.

       When all necessary repairs have been made, the court will forward the amounts to

the landlord. M.G.L. Ch. 239, § 8A.

       For a tenant who asserts breach of implied warranty of habitability but does not

follow the statutory requirement, the measure of damages is the difference between the

value of the premises as warranted and value as it exists in its defective condition.

Boston Housing Authority v. Hemingway, 363 Mass. 184, 293 N.E.2d 931 (1973).

       e.      Repair and Deductions

       If Inspectional Services Board of Health of a town or city or the local Health

Department has inspected the premises and found they do not meet the minimum

standards of fitness for human habitation and that the condition may endanger the safety

or well being of the tenant, then the landlord must begin repairs or contract (in writing)

for repair of the premises within five days of notification and must substantially complete

the repairs within fourteen days of notification. M.G.L. ch. 111, § 127L. If the landlord

fails to do so, then the tenant may deduct up to four months rent in any twelve month

period and apply the money to the correction of the conditions found.

                                             29
       Alternatively, the tenant may treat the lease or rental agreement as abrogated, pay

only the fair market value for use and occupation, and vacate the premises within a

reasonable period of time. Similarly, tenants may pay utility bills rightfully the

responsibility of the landlord in order to avoid shutoff, and then deduct the payments

from their rent. M.G.L. ch. 164, § 124D.

       f.        Defense of Landlord Reprisal

       If the landlord serves a Notice to Quit, begins summary process proceedings, or

materially alters the terms of the tenancy within six months of certain acts by the tenant

(including reporting house code violations or joining a tenants union), the notice or

proceeding shall create a rebuttable presumption that the landlord’s actions were in

reprisal against the tenant and is a defense to an action for summary process.

       A landlord must demonstrate by clear and convincing evidence that such action

was not a reprisal, the landlord had sufficient independent justification for taking such

action, and that he would have acted in the same manner and at the same time had the

tenant not engaged in the activity. M.G.L. ch. 239, § 2A; M.G.L. ch. 186, § 18.

       The word “reprisal” is to be construed broadly. Scofield v. Berman & Sons, Inc.,

393 Mass. 95, 469 N.E.2d 805, appeal dismissed 105 S. Ct. 1157, 84 L.Ed. 2d 311 (1884)

(where landlord’s refusal to allow tenant at will to stay on and pay new rent after her

lease expired until she could find cheaper housing amounted to a “reprisal”).

       Landlord will be liable for damages of one to three months rent or actual

damages, whichever is great, and the costs of the suit including attorney’s fees. M.G.L.

Ch. 186, § 18.

6.      The Tenant's Case at Trial

       The well-prepared tenant (and landlord) may have an Exhibit list with Exhibits,

                                            30
proposed Stipulations as to agreed upon facts, proposed Findings of Fact, a rent

abatement chart setting forth calculations for each code violation. Affidavits supporting

requests for attorney's fees, and even proposed Trial Memorandum. The landlord should,

but does not always, know in advance if the tenant will file any of these documents. At

trial, the tenant must introduce evidence in the form of documents or testimony to support

their Defenses and Counterclaims. To prove code violations, tenants may use photos,

videos, inspection reports, and notice letters. The tenant may address each violation

individually or go room by room through the apartment cataloguing everything that he

claims is wrong. The tenant will try to show harm stemming from each violation and

notice or constructive notice to the landlord for each condition claimed.

        Defending fault claims is more difficult. The tenant may bring witnesses to rebut

the landlord's allegations, to show that the tenant was not responsible, or that the alleged

activities were not foreseeable by the tenant. The landlord must then rebut this evidence.

The landlord may introduce the following facts by documentary or other evidence, if

appropriate: the tenant or someone for whom the tenant is responsible caused the

problem, the tenant denied access to the landlord for making repairs, or that no one ever

notified the landlord of the allegedly defective condition. In for-cause cases, the landlord

should have his own witnesses prepared to rebut the tenant's position.

        a.     Subsidized Housing

        Subsidized housing carries additional landlord obligations.         The obligations

include the use of only certain types of pre-approved leases, permitting tenants to have a

conference about their eviction with the landlord (and sometimes also with a

governmental official), and including certain language mandated by law in the Notice to

Quit.

                                            31
       b.      Government Subsidies

       If the failure to pay rent is because of the failure of a government agency to pay

rent subsidy or any substance payment (other than a salary check), an action will be

continued for at least seven days in order to notify the proper agency. If the agency pays

the amount due, the action will be terminated. M.G.L. Ch. 186, § 12.

7.     Appeals

       An appeal must be filed within ten days of entry of judgment. M.G.L. ch. 239, §

5. Any judgment in a summary process action may be appealed, including a default

judgment. U.S.P.R. 10 & 12. In appeals from the Housing Court, the Superior Court, or

the special District Courts a copy of the cassette must be ordered and the appeal is not de

novo. If the tenant files a Notice of Appeal, issuance of the Execution will be stayed

pending appeal. The tenant must file an appeal bond, although on appropriate motion the

bond can be waived. M.G.L. ch. 239, § 5. As a condition of the bond, the tenant should

be required to pay rent accruing during the Appeal, but the tenant can petition the court to

lower the rent if the premises are not habitable. The landlord should seek to have the

tenant pay rental sums due to the clerk’s office if there is any concern regarding the

tenant’s payment of rent on an ongoing basis.

       a.       Preserving Appellate Rights

       A recent Appellate Division decision spells out succinctly what is required to

preserve appellate rights in the District Court:

       The tenant failed to preserve for appellate review any question of law as to the
       validity of the landlord's notice to quit. See LoRusso v. Talbot, 1999
       Mass.App.Div. 301, 301-302 (1999). The tenant neglected to file either a
       Mass.R.Civ.P, Rule 64A(b), request for a required finding or a Mass.R.Civ.P.,
       Rule 41 (b) (2), motion for involuntary dismissal to challenge the legal
       sufficiency of the evidence to permit a judgment in the landlord's favor. See
       Cambridge Chamb. of Commerce v. Central Sq. Ins. Agency, 1999
       Mass.App.Div. 27, 29; Ducker v. Ducker, 1997 Mass. App.Div. 147, 148. The
                                             32
        tenant did not submit a Rule 64A(a) substantive request for ruling of law that a
        fourteen day notice to quit for nonpayment of a rental increase to which a tenant
        at will has not agreed is ineffective to terminate the tenancy. See generally
        Cambridge Hous. Auth. v. Wedge, 2000 Mass.App.Div. 235,237; Cummings
        Prop. Management. Inc. v. C.T. Whittier & Associates. Inc., 1997 Mass.App.Div.
        153, 154. In the absence of an appropriate request or motion and the judge's ruling
        thereon, there is no issue of law properly before us for appellate consideration.

11 Everett Street Realty Trust vs. Joseph Hynes. Jr., 2002 Mass.App.Div. 10, 11 (2002).

For an appeal from the District or Boston Municipal Court Departments, either party

must preserve its appellate rights. In Superior Court or the Housing Court, Appeal is

taken by filing a timely notice and then proceeding according to the Massachusetts Rules

of Appellate Procedure. If the Appeal is from a District Court to a Trial De Novo in the

Superior Court or Housing Court pursuant to M.G.L. ch. 231, § 9, several months may

elapse during the interim. In such cases, the District Court judgment is not prima facie

evidence in the subsequent trial. Tenants may file new Defenses and new Counterclaims

and may engage in new discovery. They may also litigate conditions with the premises

that have arisen since the date of the earlier trial.

8.      Enforcement of the Judgment

        Execution issues ten days after the entry of Judgment if no appeal is noticed. The

landlord's attorney should request an Execution. In many courts, the clerk's office is

backed up and the Execution will not issue for several additional days. When the landlord

has the Execution, he must send it to a constable or sheriff for service. The server must

give the tenant forty-eight hours notice of intent to levy on the Execution. M.G.L. ch.

239, § 3. Executions are valid for three months, so the landlord must complete the levy

before the time expires. If the Execution results from a nonpayment action and the

landlord accepts all rent due plus costs, then the Execution is invalidated and must be

returned to the court. It is expensive to move a tenant. The sheriff or constable must store

                                               33
the tenant's property in a bonded warehouse and pay three months' storage charges. To

avoid these expenses, the sheriff or constable can give the tenant more time to move or

can move the tenant's possessions to the tenant's new residence. Of course, the landlord

ultimately pays these expenses.

       In no circumstance may a landlord act to repossess a property without first

obtaining a judgment or order for possession from a court of competent jurisdiction.

M.G.L. Ch. 186 § 14 and Ch. 184 § 18 which make it clear that self- help evictions are

unlawful, do not distinguish between commercial and residential tenants.

       M.G.L. Ch. 186 § 14 provides in part...”any lessee or landlord who directly or

indirectly...attempts to regain possession of such premises by force without benefit of

judicial process...shall be punished by a fine of not less than twenty five dollars nor more

than three hundred dollars, or by imprisonment for not more than six months.” This

statute also provides that a waiver of rights pursuant to this statute contained in any lease

will be void and unenforceable. Id.

       In addition, the Attorney General has declared a landlord’s violation of M.G.L.

Ch. 186 § 14 by evicting a tenant by force without benefit of judicial process to constitute

an unfair and deceptive practice, which would subject a landlord who violates this

provision to treble damages and attorney’s fees, pursuant to M.G.L. Ch. 93A. 940

C.M.R. sec. 3.17(5)(a). See also Squeri v. McCarrick 32 Mass.App.Ct. 203, 588 N.E.2d

22 (1992).

       M.G.L. Ch. 186 sec. 18 states that “No person shall make entry into land or

tenements except in cases where his entry is allowed by law, and in such cases he shall

not enter by force, but in a peaceable manner. No person shall attempt to recover

possession of land or tenements in any manner other than through an action brought

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pursuant to Ch. 239 or other such proceedings authorized by law. The Superior and

District Courts shall have jurisdiction in equity to enforce the provisions of this section.”

The case of Gidwani v. Wasserman, 58 Mass.App.Dec. 162 (1976) specifically held that

M.G.L. Ch. 184 sec. 18 applies to commercial as well as residential properties.

       M.G.L. Ch. 186 sec. 15F provides that violations by the landlord who engages in

a self-help eviction include imposition of sanctions of three months rent, attorney’s fees,

and the option of the tenant to terminate the lease or remain in possession.

9.     Abandonment and Surrender

       a.      Termination of Tenancy by Surrender.

       Although self-help evictions are unlawful, it is certainly permissible for a landlord

to take possession of premises which a tenant have surrendered. When the tenant gives

up possession of the premises, and the landlord accepts the surrender of the tenancy by

exercising control over the property, a surrender of the tenancy has occurred. Talbot v.

Whipple 96 Mass. 177 (14 Allen) (1867); Guaranty Bank & Trust Co. v. Mid State Ins.

Agency 383 Mass. 319, 418 N.E.2d 1249 (1981).

       Whether there has been a consensual surrender of leased premises upon an

implied agreement between a landlord and tenant, or whether there has instead been a

simple abandonment of the premises by the tenant, are customarily questions of fact for

the trial court. Stavert v. Alden, 2000 Mass.App.Div. 181 (2000).      The focus of the

determination is when the landlord exercised control over the property, and would turn

on such issues as whether the locks were changed by the landlord, whether a new tenant

was substituted prior to the tenant’s vacating the premises, etc. The intent of the landlord

to accept the surrender must clearly be shown. Bandera v. Donohue, 326 Mass. 563, 95

N.E.2d 654 (1950).

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       The critical issue in determination as to whether a surrender occurred hinges

upon whether the landlord has acted to waive the right to seek to hold the tenant

responsible for rent which remains due under the lease. When the landlord has taken

steps to re-rent the premises prior to the tenants’ vacating, or accepted keys from the

tenant without clearly specifying that such acts are undertaken without waiver of the right

to seek unpaid rent from the tenant under the lease, a court may later find that the acts of

the landlord constituted a waiver of the right to proceed under the Lease. In the case of

Cantor v. Van Nordeen, 4 Mass.App.Ct. 819, 349 N.E.2d 375, (1976) the court held that

a landlord’s receipt of the keys, without more, did not show an agreement, express or

implied, which amounted to a surrender. In another case, when a landlord declined to

accept the tenant’s surrender, but notified the tenant that is would seek to re-rent the

premises, an acceptance of surrender was not inferred by the court, and the obligation of

the tenant to pay rent did not end, but was only reduced by such rental income as the

landlord may take in from the new tenant. Atkinson v. Rosenthal 33 Mass.App.Ct. 219,

598 N.E.2d 666 (1992). In an action by a landlord to recover lost rent, the tenant has the

burden of sustaining the affirmative defense of abandonment and surrender. Bandera v.

Donohue, 326 Mass. 563, 95 N.E.2d 654 (1950).

       b.      Abandonment of Premises

       Abandonment of the premises by the tenant does not relieve the tenant from

liability for further rental sums due under the lease unless the landlord agrees to it and

takes possession, and if that occurs the abandonment becomes a surrender. Guaranty

Bank & Trust at 319.




                                             36
         “In order to constitute an abandonment of the premises and acceptance thereof by

the landlord there must be a meeting of the minds.” Cassidy v. Welsh 319 Mass. 615, 67

N.E.2d 226 (1946).

         The landlord can establish that the premises were abandoned by the tenant by

showing that the tenant vacated the premises with a clear intent not to be bound by the

lease.

         Often, the landlord may not be certain whether or not the tenant has definitely

abandoned the premises, and even if the landlord is fairly certain abandonment has

occurred, the landlord may be reluctant to enter the premises to take possession without

some protection that such action is warranted under the circumstances.

         If the tenant has abandoned the premises, the landlord is not required to go

through the entire Summary Process action to obtain an execution prior to making entry

on the premises. However, that would be the best practice if there is really a legitimate

question as to whether abandonment of the property has occurred or not. Abandonment

is a question of fact which examines whether the tenant intended to vacate the premises

permanently. Butterfield v. Reed 160 Mass. 361 (1984); Willets v. Langhaar, 212 Mass.

573 (1912). The court has held that “mere nonuse...of property does not, by itself,

constitute an abandonment.” Derby Ref. Co. v. Chelsea, 407 Mass. 703 (1990).

         When there is a question of abandonment, the landlord should undertake the

following analysis:

    1. Did the tenant remove substantially all of the personal property, including

    furniture and clothing? If there are items remaining, what is the nature of the

    property left behind? Is it clearly trash, or did the tenant leave their bed and clothing,




                                              37
    television set, etc.—items which would indicate that a person might still easily live

    there.

    2. Did the tenant communicate to any of the landlord’s employees or other tenants

    that they were moving out and giving up possession?

        The court has held that an unexplained absence of the tenant may give the

landlord the implied authority to place the tenant’s personal property in storage.

Finnegan v. Hadley, 286 Mass 345, 190 N.E. 528 (1934). In Lash v. Ames 171 Mass.

487, 50 N.E. 996 (1898) when the tenant left property at the premises, the landlord

offered to move the personal property to any location designated by the tenant, and the

tenant failed to give any direction to the landlord as to what to do with the items. The

tenant later sued the landlord for conversion, and the court found that there had been no

conversion based upon the landlord’s having given the tenant an opportunity to remove

the items, or direct their storage. Id.

        A wrong decision by the landlord as to whether or not the tenant abandoned

possessions left behind may subject the landlord to liability for conversion and loss by the

tenant. Scollard v. Brooks 170 Mass. 445, 49 N.E. 741 (1898). If the landlord concludes

that there was an abandonment, some protection may be provided as to items of personal

property left behind, if a Notice of Abandonment and Surrender should be posted and

mailed to the tenant prior to taking possession of the premises. In this way best efforts

possible are made to afford the tenant the opportunity to take possession of any items left

behind, and it may be infinitely more difficult for that tenant to later claim the landlord

converted these items. Also, care should be taken to photograph the condition of the

premises prior to removal of any items. If possible, an objective witness such as a




                                             38
property manager, realtor, constable, etc., should accompany the landlord into the

premises to view the condition upon a suspected abandonment.

        If the tenant contacts the landlord to obtain his property back prior to its

disposition, the landlord cannot exclude the tenant from access to it and will be liable for

conversion and consequential damages in so doing. Potier v. Perry 286 Mass. 602, 190

N.E. 822 (1934).

c.      When Personal Property is Abandoned

        1.      Summary Process Execution.

        If it is clear that the premises have been abandoned by the tenant, and there is

personal property that has been left behind, what should the landlord do? The safest

route to take is to proceed with a Summary Process Complaint to obtain a judgment for

possession. Once the execution issues, the landlord may then forward the original

execution to the constable or sheriff, and direct the constable or sheriff to hire a bonded

moving company, who will place the items into storage.

        The obvious downside to pursuit of this option is the expense. Before moving the

property and placing it into storage, the mover will require payment in advance, and an

up front payment for three months of storage. Packing property into boxes, moving it

and paying for a bonded storage facility can be quite expensive, depending obviously on

the volume of property left behind. Pursuant to M.G.L. Ch. 239, sec. 4 a lien is granted

for “reasonable storage fees and for reasonable expenses of removing it to the place of

storage”. But this lien is granted to the storage company, not to the mover or the

landlord. And the storage facility is not very motivated to collect on this lien if the

tenant comes to collect their property, when the storage company has been prepaid.

Therefore, this lien often has little practical significance.

                                               39
          When the storage company retains the property after the three month period, they

often auction the items after attempting to give notice to the tenant of their intent to do so.

In the 2002 case of Evans v. Rosengard Moving Systems, Inc. 54 Mass.App.Ct. 208, a

tenant sued a storage facility more than two years after she was evicted and her property

placed in storage pursuant to an execution for possession. The tenant sued the storage

company for violation of the Consumer Protection statute, M.G.L. Ch. 93A and for

conversion. The court held that notice to the tenant which had been provided pursuant to

the U.C.C. ch. 106 sec. 7-210 was adequate where the tenant was served by publication,

and via a certified letter addressed to the tenant’s last known residence, the premises from

where she had been evicted, since the tenant failed to leave a forwarding address with the

post office. Id.

          A landlord may not withhold the tenant’s possessions to satisfy unpaid rent,

unless the lease provides a lien on the personal property of the tenant which may be left

behind. Flesher v. Handler 303 Mass. 482 (1939); see also Edinburg v. Allen Squire

Company 299 Mass. 206, 12 N.E.2d 718 (1938) where the court found an express

agreement between the parties which allowed the landlord to deny the tenant immediate

access to the personal property. Absent a contractual agreement to the contrary, the

landlord is required to give the tenant any goods left behind upon the demand by the

tenant. Id. The landlord is, however entitled to payment for the storage of goods which

a tenant may leave at the property. However, the landlord has no lien on the tenant’s

personal property for rent, or for storage charges connected with the tenant’s abandoned

property, and the landlord cannot withhold access to the possessions until monies which

may be due the landlord are paid. Clabburn v. Phillips 245 Mass. 47, 139 N.E. 498

(1923).

                                              40
       If the landlord is in communication with the tenant when the tenant is moving out,

and the tenant expresses a preference or direction as to how their personal property left

behind should be handled, it is highly advisable to attempt to memorialize these

directions in writing, so that the tenant may not later make a claim for conversion, or

deny that there was an agreement to exchange unpaid rent for property at the premises.

       2.       Non-judicial removal of property.

       One problem which may be encountered in following the safest route is that

many district and housing courts take the position that, when the tenant has already

vacated the premises prior to the filing of the Summary Process Complaint, that no action

lies for possession, and therefore they will not accept the Summary Process Complaint

for filing, to establish rental sums due, for example. When this happens, the landlord

cannot obtain an execution for possession through the normal process.

       Another alternative is to send a “Notice of Abandonment”, a sample of which I

have attached. I generally have the constable serve this Notice by posting a copy at the

subject premises where the personal property is located, and then by simultaneous

mailing to the tenant. However, pursuant to the case of Evans v. Rosengard Moving

Systems, Inc. 54 Mass.App.Ct. 208 (2002), it may be the best practice to check with the

post office to determine whether a forwarding address has been provided by the tenant.

       This provides the landlord with some level of assurance that the tenant cannot

later claim that he or she did not know that the landlord intended to remove or dispose of

the property. Obviously, however, there is still the possibility that a tenant may later

claim that they did not receive this Notice, etc. This is why it is critical to have

photographic and eyewitness evidence which is objective as possible to establish what

exactly the tenant left behind.

                                              41
       When the tenant does not respond to the Notice of Abandonment, then the

landlord may elect to store the personal property items in a bonded storage facility, store

them in a location which is not bonded storage which may be owned and controlled by

the landlord, or as the Notice sets forth, the landlord may decide to dispose of the

abandoned items permanently. Once the landlord decides to store the goods of the tenant,

from the moment the goods are out of the landlord’s possession, the right of the landlord

to exercise control over this personal property is terminated. The landlord has no right to

exercise any further control of the property without the express or implied agreement of

the tenant. McGonigle v. Victor H.J. Belleisle Co. 186 Mass. 310, 71 N.E.569 (1904).

       3.      Fixtures

       When a tenant installs an item, such as a light, cabinetry, etc., which is moveable,

but is attached to the wall, ceiling or floor of the premises, this is a fixture which

becomes a permanent improvement to the premises. If the fixture can be removed

without causing any material damage to the premises, it may be removed, unless the

tenant can be demonstrated to have intended that the fixture become a permanent part of

the premises. Southern Massachusetts Broadcasters, Inc. v. Duchaine 26 Mass.App.Ct.

497, 529 N.E.2d 887 (1988). The general rule, as set forth in this case, is that property

affixed to the real estate must be removed when the tenancy terminates. Id.

       If removal of the fixture by the tenant would not cause any material injury to the

premises, the Court next examines what the intent of the parties was when the personal

property was affixed. There is a bias in favor of the tenant’s right to remove the personal

property, absent some action, speech or writing which demonstrates that the parties

agreed or the tenant promises that the fixture would remain at the premises.




                                              42
Worcester Redevelopment Authority v. Massachusetts Department of Housing and

Community Development 47 Mass.App.Ct. 525 (1999).



Conclusion: The trial for possession and unpaid rent and use and occupancy charges is

not uncomplicated. In cases where the tenant files counterclaims and/or files a request

for a jury trial, the litigation process can be technical and failure to follow the rules and

procedures may result in dismissal of the summary process complaint. Even victory can

be costly and result in the tenant's remaining for additional months, and may result in

additional claims by the tenant if there is an improper move out after the judgment for

possession is obtained.

[281007]




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