Eviction Overview May 2016
Eviction Process Overview: Doug Quattrochi
Doug: The eviction process in Massachusetts is long, and it’s broken up into five pieces, the way we view it here.
From the moment rent is late, you’ve got this grace period where you’re hoping the tenant will pay. Then you issue a notice to quit. That starts the legal notice period where you said, “Hey, you got to pay or you got to leave.” You don’t actually file anything in court until the notice expires, and then in court, you’ve got all these different periods – entry, motion, discovery, trial. I’ll talk about that quickly. Then you get a judgment entered where somebody has decided, the judge or the jury has decided this is who owes what. After that, you still have more periods to go through, appeal, execution, and finally, the physical eviction period. You have repair time at the end of that. This is the whole process, start to finish, from a landlord’s point of view.
Usually when tenant advocates about eviction, they talk about the court stuff because that’s public data. We talk about the housing court study a couple of months ago. We found that the average court period was 38 days. It can last up to 15 months. If you add up all these things from start to finish, you’re going to be in a couple of months’ timeframe. If you start at a bad time of year, holidays and a little bit of neglect with your timing, it can really mess up your schedule. It can take 90 days and we’re going to show that in this example here quickly.
The scenario is, a tenant loses their job in October and they can’t find a new job. They’re short. November rent is unpaid. The landlord is unable to convince the tenant to move out with family or to take roommates that could pay and the tenant doesn’t qualify in this scenario for stabilization assistance. How many people have heard of RAFT? It’s $4,000 get-out-of-jail-free for certain eligible families. We’re assuming in this scenario, they don’t get RAFT. We’re also assuming in this scenario, the landlord has never done this before and doesn’t immediately hire an attorney and that the landlord files in housing court, so there is a mediation thing to discuss, not district court. Okay, so this is not ideal but we want to show you something realistic.
Here’s a book calendar, November 1st, rent is due. Let’s say it’s $800, so the landlord is out $800. They negotiate with the tenant. The tenant says, “Just give me one more week.”
The landlord says, “Okay, that’s probably too long.”
How many people have ever served an eviction notice the day rent was late on the 2nd? Yes? Okay, very good. That’s recommended best practice, but in this scenario, we’re waiting 10 days would be nice. One, two, three, four, five, six, seven, eight, nine, and on the tenth day, the landlord d says, “It’s not working.” They hire the constable to serve a 14-day notice to quit. Fourteen days is what’s used for nonpayment generally.
Okay, that starts the notice period with the landlord saying definitively, “You got to find another place to live.”
Notice day is day 0. It’s a 14-day notice. You have to wait 14 full calendar days, so here’s where the notice is served: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 – you can’t do anything that day. The next day, you can file the summons or you can serve the summons and complaint. The landlord hires a constable again for $140. If you are unclear on the timing, this is online. You can go check it, make sure you understand.
At the end of November, the landlord is out of $1,000, mostly unpaid rent, but they’ve also had two constable actions. This starts the entry period. After the summons has been served, they can be filed. There are all kinds of rules on filing, and then there’s a thing called the entry date, which actually starts it in the court proper. It just kind of sits at the court steps before then.
The entry date can only be on a Monday and it can only be 7 to 30 days after, so in this missed time example, the constable serves a summons and complaint on that day and then we have the half day and the Thanksgiving interfering. They can’t file it in court until Monday because they’re not totally on the ball. The entry date can’t be until the 9th, so in this missed time example, we’ve lost another 2 weeks here. If you are unclear about why this is, again check out the website, but just be aware that 14-day notice is longer actually because of the entry date rules.
After it’s actually filed, the tenant can move to dismiss or to compel Discovery; either way, you want to have your paperwork ready so you can answer quickly. If it is Discovery, you want to get an attorney. We’ll assume for this scenario that the tenant does file Discovery.
Now here was the entry date on Monday, December 9th. The trial would have been a week from Thursday but they did file Discovery, so it automatically gets extended. This is when the landlord decides to hire an attorney, December 23rd – Happy Holidays – and the landlord is now out $2,300 basically because they’ve got November losses, December rent, and they’ve got the attorney.
Okay, the Discovery period, the landlord has to assemble reasonable all their documents together. I think it’s so critical to have the rent roll, proof of what they paid and what they didn’t; proof of security deposit compliance, we just saw an eviction overturned at the Supreme Court level here because this is wrong; the rental agreement and all the relevant records, photo evidence, all that stuff.
January is where we’re at now. Rent is due. The earliest trial after Discovery would be Thursday the 2nd. You can get a judgment on the 3rd and judgment thinks you think you’re all done, hooray! But let me just skip over some of these issues here. You want to go mediation if you possibly can because that can result in a judgment that’s just as binding, and if the tenant doesn’t follow through with it, then you come back to court and things are faster.
I’ve listed some common mess-ups that can derail your case.
Remember that there’s a mandatory 10-day appeal period. You can read about this online, too. That 10-day appeal period ends, so you’re waiting, waiting, waiting more, right, and the tenant files their appeal. You still have to go to court again to get the execution. You have to hire the constable again because only a constable or sheriff can serve an execution. There’s a 48-hour notice period, and then finally you have the physical eviction. Remember you got to move and store and clean up. For this scenario, where the landlord was kind of a newbie, they lost November rent and they didn’t actually get the apartment back until Friday, January 24th.
All right, so that in a nutshell is the eviction process.
The losses for the landlord in this scenario are around $5,000 and for the tenant around zero.
If you have any questions about how this works, definitely check out the website and we’ll be mingling afterwards.