Three Critical Procedural Steps for a Successful Eviction in Massachusetts Massachusetts Housing Court often provides an empathetic forum for tenants. The landlord needs to employ a benefit and burdens analysis to determine the cost effectiveness of hiring an attorney as opposed to performing a summary process action herself. If the tenant hires an attorney then the landlord may choose to employ his own lawyer to oppose the flaws the defendant attorney normally exposes. Tenants in Boston Housing Court frequently subscribe to free legal services providing competent attorneys to assist them with their defense 1. The landlord legally serves on the tenant a Summary Process and Complaint. The plaintiff obtains this document at the court. It enumerates the date time and place of the court hearing in addition to the evidence for the lawsuit. The city or town of the property dictates the appropriate court to file in. For example, a Boston residential owner utilizes either the Boston Housing Court or Boston Municipal Court for filing his action. Properties in Burlington, North Reading, Reading, Winchester and Woburn require summary process actions to be filed in Woburn District Court. Landlords seeking in excess of $25,000 in damages must file an action in the Superior Court of their jurisdiction. 2. After completing the Summary Process and Complaint, a constable, the Middlesex County or Suffolk County the Sheriffs Department is required to serve the document to the tenant. Simultaneously, the constable serves the Notice to Quit to the tenant. In a Tenancy at Will a Thirty Day Notice to Quit is normally served upon the tenant. In other instances a Fourteen day Notice to Quit may apply. A valid service of process requires a constable to sign a return document. Any constable failure to forward the return to the court nullifies the service leading to a dismissal of the case. Additionally, the constable must have authorization to serve these documents in the city or town where the rental property lies. Massachusetts law mandates a strict timeline for filing in court after validly serving the tenant these documents. Any flaw in this rigid timeline results in a dismissal of the case. A landlord filing his own documentation often seeks assistance for the court clerk for correct fiing dates. For example, an experienced tenant’s lawyer may successfully move for dismissal if the Summary Process Summons and Complaint had been served on the tenant less than seven or more than thirty days after the landlord filed his case in court. 3. A landlord with special skills and knowledge of rental property law understands the common defenses utilized by the tenant. As stated in section 1 the locus of the residential property must be within the geographic jurisdiction of the court where he entered his case. If a tenant registers a complaint for sanitary code violations making the landlord aware of the flaws the landlord maintains a duty to repair the defects. Any delay in repair allows the tenant to deduct a portion of the rent or the entire rent. The tenant provides constructive notice of the defects with a letter sent to the owner or by reporting the violations to the local code department as used in Boston or the Board of Health. This action triggers an on site inspection followed by a formal report. Additionally, the tenant will file counterclaims for money damages based on the verified defects. The legal theory for these claims involves the breach of the warranty of habitability. The successful landlord maintains excellent dwellings and repairs any defects quickly and permanently. Upon renting the unit or house the tenant should be required, at minimum, to complete the following documents a: legally binding standard lease form tailored to the particular residence, a security deposit form requiring that the landlord deposits the money in a separate interest bearing account, a statement of condition of the premises and a receipt for security deposit and last months rent. A video of the each room of the dwelling while accompanied by the prospective tenant forms a formidable evidentiary foundation for the condition of the premises at commencement of the lease. The landlord pays interest to the tenant for the last months rent and security deposit annually. These positive steps serve to minimize the probable counterclaims of the tenant while accelerating the eviction procedure.
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