By Adam D. Schmaelzle, Esq.
This article serves as a brief guide for landlords/property managers in Massachusetts who wish to evict a tenant.
Unfortunately for you, Massachusetts is a very pro tenant state. This means that although you are afforded many opportunities to give your tenants the boot, the state will not make it easy for you. Back in the day a landlord would prevent an unruly or non-paying tenant from enjoying his or her property by changing the locks, removing the tenants belongings or shutting off the utilities. Today, if a landlord takes this type of personal approach toward evicting, he or she might end up with a serious civil or even criminal penalty. To avoid this, a landlord should first determine what type of tenancy the agreement is under. There are two major types of tenancy in this state:
1. Tenancy under a lease: which means that the landlord and the tenant have come to a written agreement which will govern the terms of the tenancy; and
2. Tenancy at will: Which means that the landlord and tenant have some agreement, whether oral or written that expresses the terms of the leasing agreement.
If the tenant is under a lease, figure out when that lease is set to expire. If it has not yet expired, you will need a reason to end the lease. You should review the terms within the lease to determine whether or not your tenant has violated any of those provisions contained, which could allow the landlord to terminate the agreement. If it has already expired, the type of tenancy has likely transformed to a tenancy at will.
If no lease exists, the lease type is a tenancy at will. The terms of this lease are presumed to be month-to-month. A landlord can terminate a tenant at will for failure to pay rent or for no reason at all. To properly terminate this type of tenancy a thirty-day “Notice to Quit” should be sent to the tenant.
*EITHER TYPE OF LEASE CAN BE TERMINATED IF THE TENANT FAILS TO PAY* To evict a tenant under either a tenancy at will or a tenancy under a lease, a landlord must first effectively terminate the tenancy by sending a fourteen-day “Notice to Quit” to the tenant.
Although it isn’t required, I would suggest that any landlord have a constable or sheriff serve either the fourteen or thirty-day notice to quit directly to the tenant in hand. That is because a tenant must have “actual notice” of a tenancy being terminated. Often times a piece of registered mail will become “accidentally misplaced” or a tenant will refuse to accept a piece of certified mail, since it usually means bad news. Nevertheless, a $35 constable fee is better than missing another months rent payment.
There are sample notice to quit forms on the Trial Court Libraries website. Link posted below.
Once the notice period has ended, a landlord can move forward with the eviction if the tenant hasn’t moved out. This is known as “Summary Process”. First, a landlord should determine whether the rental property is in an area where Housing Court is available. Although the action does not need to be filed in Housing Court, this is the more economical option. The filing fees and charges will cost the landlord about $140.00. If the rental property is not in an area where a housing court is available, the action can be filed in either District Court, or the Boston Municipal Court, and will cost the Landlord about $200.00
The process is fairly straightforward:
- Purchase and fill out a Summons and Complaint form
- Serve the tenant (use a sheriff or constable)
- After it is served, file it with the court
- Pay attention to your deadlines and make sure you show up to court.
Always remember to document everything. Keep track of receipts, dates when papers were served, copies of all your paperwork and anything else you think might be helpful to the court. Keep in mind that this process can take several months to resolve, especially since Massachusetts has provided a laundry list of defenses to tenants in these types of cases. If you miss a deadline or file something improperly, it could be even longer.
If you have any questions, or feel as though a mistake was made, please feel free to contact Attorney Adam D. Schmaelzle at 774-314-9124
1. Eviction Forms