Pattie WhitingHarvard Legal Aid Bureau

Hed EhrlichJustice Center of Southeast Massachusetts

Facing Eviction Part I

Tenants’ Rights in Massachusetts During COVID

MCLE Basic Benefits Training Series

April 14, 2021

Key Takeaways

• Only the court can evict a tenant.

• A tenant can win an eviction trial.

• Changes to eviction process during COVID-19state of emergency.

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Resources

• Legal Services: evictionlegalhelp.org• Lawyer for a Day Program• MADE: gbls.org/MADE• MassLegalHelp.org• MassAccess: courtformsonline.org/housing/• Rental Assistance: RAFT/ERMA/ERAP• Tenancy Preservation Program• Other local resources• 211

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Evictions – In Court Only

• A landlord must get an “Execution” from the court inorder to evict a tenant.

• A lease which says that a landlord can evict a tenantwithout going to court is illegal.

• It is illegal for a landlord to try to threat or intimidatea tenant to leave.

– Call 911.

– File a Temporary Restraining Order:https://apps.suffolklitlab.org/run/housing_tro

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CDC Eviction Moratorium

• Does not stop the eviction trial. Tenants must still attend all courthearings and events.

• Currently set to expire June 30, 2021.

• Protects from eviction tenants who:

– Are financially eligible (less than $99K/year income)

– Send their landlord the CDC Declaration:https://www.cdc.gov/coronavirus/2019-ncov/downloads/EvictionDeclare_d508.pdf

– Were financially affected by COVID-19.

– Are making best efforts to pay or applying for rental assistance

• Does not protect tenants where the eviction is requested forcriminal activity or similar lease violations.

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The Eviction Process

• Notice to Quit

• Summons and Complaint

• Answer, Discovery, and Jury Claim

• Tier-1/Mediation

• Motions/Trial

• Judgment

• Execution

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Notice to Quit

• Before filing an eviction in court, a landlord must terminatethe landlord-tenant relationship (the tenancy) by a writtennotice.

• Termination of the tenancy must be both– (1) according to law; and

– (2) according to the lease.

• The notice terminating the tenancy is called a Notice to Quit(NTQ) (sometimes titled Notice to TerminateTenancy/Occupancy).

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Notice to Quit

Common types of notices:

• 14-day NTQ for non-payment of rent• For tenants with or without a lease.• If no Federal subsidy is involved (CARES Act).

• 30-day NTQ for non-payment of rent• For units covered by the CARES Act (subsidy attached anywhere in the property).

• Rental Period NTQ / 30-day NTQ• For tenants without a lease.• Must be at least a 30-day period.

• Other term: for lease violation (not non-payment)• Depends on the lease, can be longer or shorter than 30 days.

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Notice to Quit

• The notice must be clear.

• Special requirements if the notice to quit is for non-payment of rent.

• The tenancy must be terminated according to the lease.

• Tenants-at-Will may be terminated for no reason at all,but the landlord must give notice of one full rentalperiod (but no less than 30 days).

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Notice to Quit

• Notices to quit for non-payment of rent that are servedafter Dec. 31, 2020 must include a special notice abouttenants’ rights: https://www.mass.gov/doc/landlord-ntq-instructions-updated-021621/download

• FORM TO ACCOMPANY RESIDENTIAL NOTICE TO QUIThttps://www.mass.gov/doc/landlord-attestation-and-tenant-notice-form-and-translations/download

• Local jurisdictions may add notice requirements(Cambridge, Somerville).

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Right to Cure

• If the reason for eviction is non-payment of rent, the tenant then has aright to “cure” the non-payment by timely paying what they owe in full.

– Tenant at Will: right to cure within 10 days after the notice. Onceevery 12 months.

– Tenant with a lease: right to cure until the Answer Date (must also paycourt filing costs and service fee, if case was entered in court).

• If the tenant cured the non-payment BEFORE the filing of theeviction case, the landlord should not enter the case.

• If the tenant cured the non-payment AFTER the case was entered,the case should be dismissed.

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Rental Assistance

• During the COVID-19 Emergency, tenants have the right toapply for rental assistance.

• In nonpayment eviction cases, while tenants have a pendingrental assistance application:

– The court must continue (re-schedule) any hearing.

– The tenants should not be evicted.

• Landlord’s refusal to accept rental assistance could be adiscrimination in violation of the law.

• Rental Assistance rules and regulations may require thelandlord to dismiss the eviction case upon payment of theback rent.

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When the NTQ Expires

“Receipt of a notice to quit, however,does not legally require the tenant to move out of

his or her home … Rather, it simply declares thelandlord's intent to go to court to seek an evictionorder if the tenant does not move out voluntarily

before the stated deadline. Nevertheless, a tenantmay reasonably – but incorrectly – believe the

notice to quit to mean that he or she must move outbefore the deadline.”

Adjartey v. Cent. Div. of Hous. Court Dep't, 481 Mass. 830, 850 (2019)

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Summary Process

• Eviction cases in Mass. have special court rules ofprocedure and are called Summary Process actions.

• Generally, the outcome of the case will include:1. Possession2. Time3. Money4. (Court may also order the landlord to make repairs or to

accommodate a disability.)

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Summary Process

Tenants can win eviction cases!

• If the landlord did not follow the proper process, the casemay be dismissed.

• If the landlord was found to be breaking laws protectingtenants, the tenant may win possession and/or money.

• Even if the tenant lost the eviction case, the court maystill allow the tenant to stay in the apartment for up toone year.

• The tenant and the landlord can agree on a resolutionthat is acceptable for both sides.

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Summary Process

• Begins with Summons and Complaint.

– Typically, a document of one double-sided printed paper whichincludes a Complaint detailing the allegations; and a Summons togo to court.

• Must be served by the sheriff or a constable.

– Service in hand not required (can be mailed and nailed).

• During COVID-19 state of emergency, the Summons onlytells the tenant that the case was entered in court; noticeof the exact date of the first court event (remotemediation) will be mailed separately.

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Prepare for Trial

• When assisting a tenant facing eviction make sure toact promptly.

• Apply for rental assistance, if applicable.– And keep a proof of application.

• Complete and serve a CDC Declaration, if applicable.– And keep a copy.

• Contact Legal Services: https://evictionlegalhelp.org/

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Types of Evictions

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No-fault(or No-Cause)

Tenant can raisecounterclaims.

If tenant loses, the court shouldconsider a stay of the Execution togive tenant time to relocate.

Non-paymentof rent

Tenant can raisecounterclaims.

No law saying court shouldconsider stay of execution.

Fault(or Cause)

Generally, nocounterclaims.

No law saying court shouldconsider stayof the Execution.

Answer and Discovery

• Currently, Answer and Discovery are due three days prior to

the first event in the eviction case (Tier-1 mediation).

• Answer: Tenant’s opportunity to tell their side of the story;

Defenses and Counter-Claims.

• Discovery: Tenant’s opportunity to ask the landlord

questions and demand relevant documents.

• Jury Demand

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Answer and Discovery

• Helping a tenant get an Answer and Discovery filed (andserved!) is one of the most important things you can do asan advocate.

• Call Legal Services ASAP. Especially if the case involvescause allegations or criminal activity.

• Fill out your own Answer and Discovery using MADE – anonline service for unrepresented tenants and advocates :https://www.gbls.org/MADE

• Or download Answer and Discovery forms frommasslegalhelp.org.

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Answer and Discovery

• All forms must be printed and copied, filed in the court,AND served on the landlord no later than 3 days before firstmediation.

• Electronic filing is recommended; in-person filing isavailable for self-represented tenants.

• Video instructions for e-filing:https://www.masslegalhelp.org/housing/evictions-efilema

• Late Answer will only be accepted with permission from thecourt.

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Answer

Defenses:

1. Denial of landlord’s claims

2. Procedural Defenses, including failure tocomply with specific requirements duringCOVID state of emergency

3. Retaliation

4. No Significant Lease Violation

5. Avoidance of Forfeiture

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Answer

Counterclaims:(Also serve as Defenses; not always allowed in faultevictions):

1. Bad Housing Conditions2. Breach of Quiet Enjoyment3. Discrimination/Reasonable Accommodation4. Utilities violation5. Security Deposit or Last Month’s Rent violations6. Unfair and Deceptive Business Practices

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Jury Trial

• Jury claim must be filed by the Answer date.No second Chance!

• The parties can later agree to have a trial infront of a judge without jury (bench trial).

• A request for jury may postpone trial date.

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Transferring Case to Housing Court

• The landlord can choose to file a Summary Processaction in either a District Court or the Housing Court.

• The Tenant can transfer the case to Housing Courtanytime before the date of trial.

• Housing Courts often have more expertise on theissues.

• Housing Courts have more resources to serveunrepresented tenants: Housing Specialists, TenancyPreservation Program, Lawyer for the Day.

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