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Landlord Rights and Responsibilities
As Reported on the Massachusetts State Website
www.mass.gov Last updated (07/07/2007) This
publication provides general information about Massachusetts consumer issues
and procedures. It is not designed to address all questions in detail and
consumers are encouraged to seek further guidance by contacting the agency
directly. This content is not intended to provide legal advice, but
rather a brief overview of the rights and responsibilities of landlords
according to the Commonwealth of Massachusetts. Anyone seeking legal advice
is strongly encouraged to use the services of an attorney. The below
content of this site belongs to the Commonwealth and not Dakota Management
Services.
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Finding a good tenant
Finder’s fees
When renting an apartment, you are not permitted to charge a finder’s fee to
a prospective tenant if you are also the landlord of the unit (M.G.L. c.
112, § 87DDD and 254 C.M.R. § 2.01 et seq.). Only a licensed broker or
salesperson can lawfully collect a fee for bringing together a landlord and
a tenant.
Duty Not to Discriminate Unlawfully
A matrix of Federal, State and local laws combine to prohibit discrimination
on the basis of race, color, national origin, ancestry, sex (gender), sexual
orientation, age, marital status, religion, military/veteran status,
blindness, hearing impairment, receipt of public assistance or housing
subsidy, and children, with minor exceptions. Discrimination is prohibited
against children because the apartment contains lead paint and you do not
want to incur the expense of deleading the apartment. Be certain your rental
agents understand that you will not tolerate rental discrimination.
Screening Prospective Tenants
Because paying your mortgage is directly dependant upon your tenants paying
you, you should always run a credit check and a check of the tenant’s prior
rental history through companies making this information available for a
nominal fee. You should always confirm current employment, salary level,
prospects for remaining with the employer, and landlord references from not
just the current landlord, but the tenant’s landlord just prior to the
prospective tenant’s current landlord. Also, you may want to meet your
tenants prior to giving final approval, especially in an owner-occupied
multi-unit rental. The rule of thumb that tenants should pay no more than ¼
of their income for rent has been stretched beyond that recommendation by
increases in market rents. However, if the tenants offer a co-signature of a
parent or friend on their lease to guarantee their rental obligation to you,
consider carefully that a guarantee by an out of state signer is very
difficult to enforce.
Pre-Rental Preparation of the Apartment
Before renting an apartment, you should inspect it completely after the
current tenant vacates or near the end of the current tenant’s occupancy to
assess any damage, to assure that it is in good repair when attempting to
re-rent the apartment, and for the incoming tenant once it has been rented.
You are obligated under certain circumstances to have the local Board of
Health inspect and verify that the apartment meets State Sanitary Code and
safety standards prior to re-renting.
It makes good business sense to do this on all occasions whether required to
or not, because anticipating and resolving problems before they become major
issues is essential to the smooth, cost-effective and profitable operation
of residential property.
Inspector’s Sign-Off Once All Violations Cited Have Been Repaired
Obtain the Inspector’s sign-off once all violations have been corrected.
This sign-off also acts as violation-free base line if the tenant should
claim there are problems with the apartment after taking occupancy.
Obligation to Delead The Apartment
Whenever a child under the age of six (6) resides in residential premises
containing unlawful levels of lead, you are obligated to properly remove the
offending substances (M.G.L. c. 111, § 199(a)).
You or your agent are required to give the Massachusetts Lead Law
Notification form to tenants regarding the dangers of lead paint, and the
requirement to remove lead paint where children under six (6) intend to
reside.
Maximum Pre-payments
While a tenant may have a pet, or some interest such as portrait painting,
which may potentially harm the apartment, you are prohibited from the
collecting as advance payments more than the first and last month’s rent,
one month’s security deposit, and the cost of installing a new lock (M.G.L.
c. 186 § 15B).
It is an unfair or deceptive practice for you to demand that a tenant prepay
rent when a tenant is not obligated to and did not, in fact, occupy the
dwelling, unless otherwise agreed to in writing by both parties (940 CMR §
3.17 (6)(d)).
A violation of the Consumer Protection Statute c.93A, for committing an
unfair or deceptive act against a tenant exposes you to up to treble
damages, costs and payment of the tenant’s attorney’s fees.
Types of tenancies
Your legal rights will vary depending on the type of tenancy.
A Tenant Under Lease
A lease generally means a signed agreement to rent an apartment for a finite
time, for a specific amount of money usually paid per month. You may not
evict the tenant before the end of the term, unless the tenant violates some
provision of the lease. You may not increase the rent until the end of the
term, unless the lease states otherwise. Most leases provide that if the
tenant violates the lease you may evict the tenant. A fourteen (14) day
notice to quit is required for nonpayment of rent (M.G.L. c. 186, § 11).
Although your tenant has agreed to pay you for every month of the tenancy
the lease exists, if the tenant leaves the apartment without your consent,
the tenant, except as stated below, owes rent for the entire remaining
balance of the lease. However, you must make reasonable efforts to find a
new tenant to take over the balance of the former tenant’s lease. This is
known as the landlord’s duty to mitigate damages.
Tenancy At Will
You have a Tenancy at Will when, with your permission, a person occupies
your apartment, paying rent regularly, usually monthly. A Tenancy at Will
may be written or oral. Either you or your tenant may terminate this
agreement at any time for a specific reason or for no reason by giving 30
days written notice or notice which covers a full rental period, whichever
is longer. Termination of a Tenancy at Will for nonpayment requires only a
14 day notice to quit (M.G.L. c.186, § 12).
While a valid Tenancy at Will may be either oral or written, reducing the
agreement to writing provides added protections for both you and the tenant,
and this should be done at all times. It is also recommended that the
tenancy agreement be written because in the absence of a written document
placing the burden of paying utilities on the tenant, the law places the
burden of paying those utilities on the landlord, even in the face of an
oral agreement stating the tenant will pay them. A handshake is nice, but a
written agreement is far better (105 C.M.R. § 410.190, § 410.201, §
410.354).
Subsidized Tenancy
Most aspects of a subsidized tenancy are controlled by the lease and
applicable State and Federal law, much of which differs from the summaries
given here for the market rate tenants.
Security deposit and last month’s rent
Last Month’s Rent
A last month’s rent is a prepayment made at the beginning of the tenancy to
the landlord to be applied to the last month of the tenancy. There is no
requirement for you to escrow the money in a separate interest-bearing
account. A receipt must be given at the time the last month’s rent is taken
indicating the amount, date of receipt, a notation identifying the money as
the last month’s rent, the name of the person receiving the money or for
whom the money is being received, the description of the premises for which
the last month’s rent is taken, a statement indicating the tenant’s
entitlement to yearly interest at the rate of 5 % or such lesser amount as
the landlord actually receives if the landlord chooses to escrow the money,
and a statement telling the tenant to provide a forwarding address by the
end of tenancy to which the interest may be sent. Upon increase of the rent,
you may require the tenant to increase his or her last month’s rent to the
current rent level (M.G.L. c. 186, § 15B).
Payment of Interest On Last Month’s Rent
Interest must be paid to the tenant either on the anniversary date of the
tenancy or on a pro-rata basis, if the tenancy ends before one year, for all
months except the last month of the tenancy. On the anniversary date of the
tenancy, the landlord must send a statement as to the amount of interest due
with payment of that interest or a statement indicating that the tenant may
deduct the appropriate amount from the next rental payment. If you have not
sent either of the above to the tenant by the anniversary date of the
tenancy, the tenant may lawfully deduct the prescribed amount of interest
from the next rental payment. This deduction is not a breach of the tenancy
agreement allowing eviction. If you do not pay the interest within 30 days
after the end of the tenancy, or the removal of the tenant from the
premises, you will be exposed to liability of three times the interest due,
plus court costs and attorney’s fees (M.G.L. c. 186, § 15B (2)(a)).
Transfer of Last Month’s Rent to New Landlord
Upon the sale, foreclosure or other transfer of the building, the landlord
must transfer the last month’s rent to the new landlord with accrued
interest. The new landlord must give the tenant written notice of the
transfer within 45 days of receipt. If the former owner fails to make the
proper transfer, s/he is still liable to the tenant, but so is the new
landlord in the amount of the last month’s rent. The new landlord can
discharge their duty to the tenant, by allowing the tenant to live free for
a period covered by the last month’s rent.
Security Deposit
A security deposit is money, paid by the tenant to you, and held in a
separate interest-bearing escrow account to indemnify you against losses due
to the tenant’s failure to pay rent, failure to pay appropriate tax
escalators, or if the tenant damages the premises. Because this deposit
belongs to the tenant until properly applied by you, you must:
Hold the deposit in an interest-bearing Massachusetts bank separate from
your own money;
Give a receipt to the tenant within 30 days of taking the deposit,
identifying the bank, address, account number, and the amount of the deposit
held; and
Pay 5 % interest or any lesser amount of interest actually received from the
bank where the deposit is held, if the tenant resides on the premises for at
least one year. Said payment is to be made on the anniversary date of the
tenancy.
Payment of Interest on Security Deposit
On the anniversary date of the tenancy, you must send the tenant a statement
of the interest owed with a check for the interest, or you must notify the
tenant that s/he may deduct it from the next rental payment. If within 30
days of the anniversary date of the tenancy you have failed to pay the
interest, the tenant may lawfully deduct it from the next rent payment. Upon
termination of the tenancy, you must forward the interest due to the tenant
within 30 days.
Statement of Condition
Either upon receipt of the deposit or within ten (10) days thereafter, you
must provide the tenant with a Statement of Condition, which contains a
comprehensive list of all then-existing damage to the unit, which list is
signed by you or your agent. The notice must inform the tenant that s/he
must sign the list within fifteen (15) days of receipt or move-in, if it is
correct. You must further inform the tenant that failure to re-submit the
list may allow a court to view the tenant’s failure to sign as agreement to
the completeness of the landlord’s proposed Statement of Condition. You then
have fifteen (15) days to sign off on the tenant’s list of damages or send a
clear statement of disagreement to the tenant. Although there are forms
available for these purposes, it is recommended that an attorney or other
real estate professional be consulted when taking a security deposit.
Deductions From the Security Deposit
Upon termination of the tenancy, you must return the security deposit or
balance thereof within thirty (30) days of the tenant’s vacating the
apartment. You may only deduct for the following items:
Unpaid rent not lawfully withheld;
Unpaid increases in real estate taxes the tenant is bound to pay pursuant to
a valid tax escalator clause in the lease; and
Any reasonable amount necessary to repair damage caused by the tenant or
their pets or guests.
The normal wear and tear in an apartment is not a deductible item of damage.
If you deduct for damages, you must provide the tenant with a statement
sworn to under the pains and penalties of perjury listing the damages for
which you are deducting along with documentation showing the actual or
estimated costs of these repairs such as bills, receipts, or invoices. You
may not deduct for damages set out in the respective Statement of Condition
unless you made repairs to them subsequent to the start of tenancy and they
were again damaged by the tenant or persons within the tenant’s control.
If damages exceed the security deposit, you are free to sue for those as
well.
Transfer of Security Deposit to New Landlord
Notice from New Owner
Within forty five (45) days of the transfer, the new owner must notify the
tenant that the security deposit has been transferred and that s/he is
holding it for the benefit of the tenant. The notice must be written and
must contain the new owner’s name, business address, business telephone
number, and the same information for any agent.
Penalties For Failure to Properly Handle Security Deposit
If you do the following, the tenant is entitled to the immediate
return of the security deposit:
Fail to make the security deposit records available to the tenant during
business hours;
Fail within thirty (30) days of taking a security deposit to give the tenant
a receipt with the name, address of the bank where the money is held, and
account number of the bank in the amount of the deposit;
Make deductions for damages without submitting proper documentation
described above; or
Use a lease with provisions that conflict with the Security Deposit Law and
you attempt to enforce this lease or attempt to make the tenant waive his or
her rights.
If you do the following, the tenant is entitled to the immediate return of
the security deposit and treble damages, court costs and attorney’s fees:
Fail to place the security deposit into a Massachusetts interest-bearing
bank account separate from your own;
Fail to return the security deposit or balance thereof within thirty (30)
days after termination of the tenancy; or.
Fail to transfer the security deposit to the new landlord (M.G.L. c. 186 §
15B).
A new landlord has the same transfer responsibilities as stated above for
last month’s rent.
Continuing Liability of Former Owner
The former owner and agent remain liable under the treble damages provision
of the Statute for retention and accounting, until either:
The security deposit has been transferred and the tenant has been given the
above-written notice or
The security deposit has been returned to the tenant.
The new owner has full liability for the treble damages, even if the former
owner fails to transfer the security deposit and fails to give the proper
notice described immediately above.
It is recommended that if you choose to take a security deposit, you consult
an attorney or other real estate professional before doing so, because the
penalties for failing to properly handle the tenant’s money are severe.
Other common landlords’ rights, duties & remedies
The Right to Prompt Payment
You have the right to receive the rent on the first of each month unless the
parties otherwise agree. There is no grace period in Massachusetts and
therefore if the tenant does not pay on the first of the month, you may
begin an eviction by sending a notice to quit.
The Right to Have Compliance With Tenancy Agreement
You have the right to have the tenant abide by the terms of the tenancy,
whether it is oral or written. If the tenant breaches terms of the tenancy,
for example by having unauthorized sub-tenants, pets, smokers, or other
prohibited uses such as raising pigeons in the apartment, you have the right
to terminate the tenancy and to move to evict. See Eviction below.
Increasing Rent
You may increase the rent in any amount you believe the market will bear for
a non-subsidized unit or for a unit that does not fall under the few
remaining restrictions of rent control pertaining to mobile homes, under the
following circumstances:
Under a tenancy at will, you must end the tenancy and notify the tenant of
the rent increase at least a full rental period in advance, but not less
than 30 days in advance of the effective date of the increase.
You may only increase the rent of a tenant under a lease after the lease
terms expires, unless the lease states otherwise. Typically, the lease will
state notice deadlines for renewal which should be observed when seeking a
rent increase of a tenant under lease. Rent increases can be complicated.
The advice of an attorney should be sought before attempting it. Increasing
rent incorrectly could lead to costly, time-consuming and needless problems
or litigation with your tenant (M.G.L. c. 186, §§ 11, 12).
Late Payment Penalty
You may not charge a late fee or penalty for rent paid past the due date
unless it is paid 30 days or more past the due date. A reverse penalty to
encourage early payment is also illegal. For instance, where you promised to
reduce the rent by 10 % if the rent is paid within the first five days of
the month, this is an illegal provision (940 CMR § 3.17 (6)(a). However,
because there is no “grace period,” you may begin eviction if the rent is
only one day late.
Utilities
You may require tenants to pay their own electricity and gas bills. But, if
you do not put this obligation in a written tenancy agreement, you may later
be charged with paying past utility bills, if the tenant refuses to pay,
despite having verbally agreed to pay them.
The Right to Enter The Apartment
A landlord may generally enter the apartment at reasonable times and upon
reasonable notice for these reasons:
To show the apartment to prospective tenants, purchasers, lenders or their
agents;
To inspect the premises;
To make repairs;
To inspect within 30 days of the end of the tenancy to determine damages to
be deducted from the security deposit;
If the premises appear to be abandoned; or
Pursuant to Court order.
Duty to Provide Habitable Premises
You must provide habitable apartments and common areas for the entire
tenancy in accordance with the minimum standards of the State Sanitary Code
which seeks to protect the health, safety, and well-being of your tenants
and the general public.
Heat: Landlords must provide a heating system for each apartment or one
system that services all apartments in good working order. The landlord must
pay for the fuel to provide heat and hot water and electricity unless the
written rental agreement states that the tenant must pay for these. The
heating season runs from September 16 through June 14th, during which every
room must be heated to between 68˚F and not more than 78˚F between 7:00 a.m.
to 11:00 p.m., and at least 64˚F at all other hours.
Kitchens: In each kitchen landlords must provide a sink sufficient for
washing dishes and kitchen utensils, stove and oven in good working order,
unless the written rental agreement states the tenant must provide this, and
electrical hook-ups for installation of a refrigerator. The landlord is not
required to provide a refrigerator, but if s/he does, it must be maintained
by the landlord in good working order.
Water: If the landlord meets certain legal requirements then they may charge
a new tenant for water consumption by installing a water meter for the unit.
Landlords should be reminded that they are still responsible for payment of
the water and sewer bills and must bill their tenants separately. Before
installing separate water meters, landlords must contact the Massachusetts
Department of Public Health for required forms. Landlords must still provide
the facilities for heating water to a temperature between 110˚F and 130˚F
and must pay for this fuel unless the written tenancy agreement states that
the tenant must pay for it.
Infestation: Landlords must maintain the common areas and apartments free
from rodent, insect and other infestation if there are two or more
apartments in the building.
Structural Elements: Landlords must maintain the foundation, floors, walls,
doors, windows, ceilings, roof, stairwells, porches, chimneys and all
structural elements so as to exclude wind, rain, and snow; so as to be
rodent-proof, weather tight, watertight, and free of chronic dampness, in
good repair and fit for human habitation at all times.
Maintenance of Exits: Each exit used or intended for use by the building’s
occupants must be maintained by you and kept free of all snow, trash and
other obstructions.
Tenants’ rights
Rent Withholding
If you fail to maintain the premises during the entire tenancy, in habitable
condition, your tenants may rightfully withhold part of the rent from the
date you have notice of breach of the Warranty of Habitability, if:
They complained to you of defects or problems or the Board of Health cited
the apartment or building for Code violations;
The tenant was not in arrears in rent before you knew of the conditions
complained of;
You do not show that the complained of conditions were caused by the tenant
or occupant;
The premises are not in a hotel or motel or in a lodging house in which the
tenant had resided for less than three (3) consecutive months; and
You fail to show that the needed repairs are so extensive that the apartment
must be vacated to complete them.
Repair and Deduct
Your tenant may validly make repairs him/herself and deduct from future rent
if:
The Board of Health certifies that there are violations present which may
endanger health, safety, or well-being of the residents;
You are notified in writing of the violation;
You have failed to contract with someone to do the repairs within five (5)
days of receiving written notice or you fail to substantially complete the
repairs within fourteen (14) days of receiving notice;
The tenant did not cause the violations;
The tenant must deduct only reasonable amounts of rent in light of the
violations and alternative corrective measures; and
The tenant did not unreasonably deny you access to make repairs.
The tenant is limited to a maximum deduction of four (4) months in a twelve
(12) month period. If your tenant does not wish to make repairs, and the
problems have been certified by the local Board of Health to exist as
described above, the tenant may declare the tenancy void and may leave
within a reasonable time so long as, the tenant pays the fair rental value
for the time s/he occupies the apartment (M.G.L. c. 111, § 127L).
Retaliation
You cannot retaliate against your tenants for exercising their legal rights
such as complaining to you or the Board of Health about problems with the
apartment, joining a tenant’s union or lawfully withholding rent or
repairing and deducting. It will be presumed that you are retaliating
against your tenant if within six (6) months of the tenant’s exercising any
protected rights as briefly stated above, you terminate the tenancy,
increase the rent, or otherwise attempt to change the terms of the tenancy.
In order to then avoid penalties of up to three (3) month’s rent, attorney’s
fees and costs of the action, you will then have to prove in court
non-retaliatory reasons for doing these acts.
Keeping good records
Like any business, the efficient operation of residential property requires
good record keeping. It is strongly urged that you keep detailed records of
all aspects of the tenancy. In addition to the extensive records required of
you if you take a security deposit, you should keep records of all contacts
and complaints by tenants, with dates, and notes regarding conversations;
contacts with repairmen, health department inspections, invoices, paid
repair bills, and similar information. Massachusetts tenants have many
rights and remedies. Frequently, good records mean the difference between
winning and losing your case in court or avoiding court altogether.
Evictions
Resolving Disputes Without Court
When complaints or disputes with tenants arise, investigate them and address
them quickly. Ignoring tenant complaints or flatly refusing to address them
can lead to costly, acrimonious, eviction cases, and a prolonged stoppage of
rent payments while the matter is litigated. Therefore, it is prudent to try
to resolve all issues before filing an eviction case in court, after which
time, the tenant may well cease paying rent until a judge tells him or her
how much and when they must begin paying again for their continued occupancy
of your apartment. This could and often does take many months to resolve if
contested.
In attempting to work with tenants having a hard time financially, or
suffering other problems which interfere with their living up to their
agreement with you, do not allow the problems to drag on for long without
fairly quick written resolution. Because Summary Process cases (eviction
cases) can take months to resolve, especially if contested, if you allow a
nonpayment situation to continue for long without receiving regular payments
against the arrearage, you will have lost many months of rent by the time
you win an execution (court order for the move out). In the absence of any
mandatory rent escrowing requirements, you will likely lose the rent
entirely for the intervening months.
Early termination
Near the end of a lease, you may sometimes begin eviction, if you have
substantial grounds to believe the tenant is likely to continue in
possession of the premises after the termination date in the lease. However,
no Execution (court order for move out) can be issued before the termination
date in the lease. But, you will have saved time and perhaps the incoming
tenancy by having the court’s permission before hand to evict a tenant
holding over after his or her lease has ended (M.G.L. c. 239, § 1A).
No lock-outs
If you want a tenant out of your apartment permanently, the only way to
evict the tenant lawfully is by getting an Execution (court order to move
out). You cannot lock out a tenant under any but a few narrowly interpreted
and exceptional circumstances. The penalties for unlawfully shutting off the
tenant’s utilities or for unlawfully barring a tenant access to the
apartment without an Execution can be severe, running the gamut from three
month’s rent, attorney’s fees, and injunctions forcing you to put the
wronged tenant back in the apartment, and criminal penalties and fines in
some instances (M.G.L. c. 186, § 14).
Termination of tenancy: Notice to Quit
Tenants under lease: If you want to evict a tenant under a lease for a
reason other than nonpayment, such as having unauthorized sub-tenants, or
property damage, the lease will generally tell you what type of Notice to
Quit you must use and when to serve it. If you are evicting the tenant for
nonpayment, you must send a 14 day Notice to Quit (M.G.L. c. 186, § 11).
But, if the tenant pays all monies due, plus costs, interest and your court
filing fees by the date her Answer is due in court, the tenant has an
absolute right to stop the eviction.
Tenants at Will: If you are evicting for a reason other than nonpayment, or
for no reason, you must give the tenant a 30 day Notice to Quit. If the
eviction is for nonpayment, you must give a 14 day Notice to Quit. But, if
the tenant pays the amount claimed due, plus costs, interest and your court
filing fees in 10 days, and if this is only the second Notice to Quit for
nonpayment within 12 months, the tenant has an absolute right to stop the
eviction. If you do not place notice of this fact in the Notice to Quit, the
tenant has a right to stop the eviction by paying the above sums not later
than the date his Answer is due in court (M.G.L. c. 186, § 12).
Subsidized Tenancies: While eviction of these tenants is no longer subject
to the exclusive authorization of the local housing authority, eviction is
still controlled by the specific terms of the lease and by a matrix of
Federal and State law. An attorney should be consulted when evicting a
subsidized tenant.
The many types of Notices to Quit vary depending on the type of tenancy
sought to be terminated and the rights you wish to reserve to yourself after
terminating the tenancy. The rules governing timing and method of service
are confusing to the new landlord as well. It is recommended that you should
not rely solely on the advice of a constable when sending a Notice to Quit,
but rather that you also consult an attorney before you move to evict.
Although most constables are knowledgeable as to service, they may not know
all of the requirements of terminating tenancies technically required of you
in order not to have your case dismissed in court, or to reserve certain
rights to you.
Summons and complaint
When the notice period ends, you or your lawyer must serve a Summary Process
Summons and Complaint on the tenant. This officially brings the tenant under
the court’s power and informs him or her of the trial date, the place of the
hearing, the reasons for eviction and how much money, if any, you claim the
tenant owes you.
Answer
This is the tenant’s written response sent to you in which s/he states why
s/he should not be evicted and what, if any, counterclaims for money damages
s/he has against you such as violations of the State Sanitary Code,
retaliation, or faulty eviction procedures.
Trial
If you cannot reach an agreement with the tenant resolving the reasons for
eviction, there will be a trial. At this hearing, the tenant and you or your
lawyer present your witnesses and documents and a judge or jury decides if
you win or if the tenant wins and how much money, if any, the tenant must
pay or how much, if any, you must pay the tenant.
Appeal
Either party may appeal within 10 days of entry of the judgment, if
dissatisfied with the outcome of the trial, by filing a Notice of Appeal (M.G.L.
c. 239, §§ 3, 5 and M.G.L. c. 231, § 97). But, as a condition of the
tenant’s appeal, s/he must post an appeal bond in an amount determined by
the court. Or, the court may waive the bond if the tenant can show s/he is
indigent and has a real defense. If the bond is waived by the court, the
tenant must still pay the rent which comes due during the appeal. If the
court will not waive the bond, the tenant must pay past due rent and rent
accruing as the appeal progresses, if the tenant wants to stay in the
apartment during the appeal. The tenant cannot be physically evicted until
the appeal has been dismissed or decided. Appeals are fraught with
procedural pitfalls and should be undertaken with a knowledgeable attorney.
Execution
The Execution is the court’s order requiring the tenant to move from the
apartment. After the appeal is decided or dismissed, Execution will be
issued, but not before then. The Execution must be used within three months
of its issuance or it expires. If you accept the full amount of the rent
awarded by the court in a nonpayment case, you effectively waive your right
to remove the tenant and you have created a new tenancy.
Physical move out
To physically remove the tenant from your apartment, you must hire a
constable and a moving company, if the tenant has refused your request to
go. The constable must give the tenant 48 hours notice that s/he is coming
with the truck. On the date set, the constable goes to the property,
physically removes the tenant and her goods, orders the movers to store them
in a storage facility, at your expense initially, and gives the keys to you.
That ends the eviction process.
The tenant must now go to the storage company for her property. Because the
warehouse has a lien on the property for its unpaid fees, if the tenant does
not retrieve the property within six months, the warehouse may sell it. You
may sue the tenant for your costs of the eviction (M.G.L. c. 239, § 4).
Stay of execution
If the eviction was a no-fault eviction and if the tenant cannot find a new
apartment, s/he may ask the judge for a stay of execution of up to six
months, or if s/he is elderly or handicapped, up to one year. If the
eviction was for nonpayment, technically, the judge has no power to grant a
stay. However, if in a nonpayment case, the tenant’s award on his
counterclaims was less than the amount of rent awarded to you, the tenant
can avoid eviction by paying the difference, with interest and court costs
in seven (7) days (M.G.L. c. 239 § 8A).
Documentation
When the tenant is leaving, you should view the apartment, take pictures and
review the Statement of Condition, if any, so as to definitively verify the
condition of the apartment on the date of move out. This will establish what
was damaged by the tenant during his time in the apartment and should avoid
a later problem with security deposit deductions and possible litigation.
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