If you’re headed to housing court over an eviction, you’ll want to read the advice in this article. We recently sat in on a discussion between housing court professionals and some landlords. For privacy reasons, we have only paraphrased the discussion here (no direct quotes).
MassLandlords: What are some do’s and dont’s about housing court?
Housing Specialist: I can’t stress enough the importance of writing your agreement down before you start with a tenant. It can be one page. Are they allowed to have a dog? Can they park on the premises? Verbal agreements are legal but you can end up in a lot of trouble with them.
Also, remember that the burden of proof is on you, the landlord, when it comes to giving a notice to quit. The best thing is to hand deliver it yourself. That means, give it to the tenant directly, don’t leave it at the door. Don’t mail it certified because the tenant can refuse to sign for it.
MassLandlords: How many people need to be on the notice?
Judge: All adults over the age of 18. The phrase, “and all other occupants” is of no legal consequence when it comes to getting an execution to move someone out of an apartment.
Please don’t list children.
MassLandlords: But what if you don’t know their name because they moved in without your permission?
Judge: The law requires a reasonable basis to force vacation. Provide a complete physical description if you do not know an individual’s name.
MassLandlords: Can landlords file under a “doing business as”?
Housing Specialist: The landlord or the owner must be the one evicting. The landlord can be the owner or an agent. The owner is the person or entity on the deed. The legal name of the owner or landlord will be required to evict. Note also that if the law requires your entity to be represented in court by an attorney, you must have one. If you’re acting as landlord for an owner who won’t pay for an attorney, force the issue by seeking an indemnification before appearing in court. Otherwise you’ll be in court as you, personally, and you will lose.
MassLandlords: Tell us about the housing court system.
Judge: There are five housing courts in Massachusetts. Not everywhere in the state has access to a housing court. The five courts are:
- Western Massachusetts, including Springfield
- Worcester, including Marlborough, Leominster, Dudley, and Uxbridge
- Northeast, including Lawrence
- Southeast, including Fall River
- Boston (city limits only)
If you’re in Middlesex County or the Cape or the islands, you will file in local district court. Legislation has been filed to expand the housing courts. Currently they are concurrent with district courts, so you can file in either even if you have access to a dedicated housing court.
The courts may travel, for instance, Monday is one city within the region, Thursday is another.
MassLandlords: Suppose a landlord grants an exception to a tenant for breaking part of the rental agreement, and then he or she changes his or her mind and wants to enforce that part of the agreement. Is it too late?
Judge: Maybe. Your conduct can waive provisions of a tenancy agreement. If it’s a tenancy at will, send a 30 day notice to quit and offer to create a new tenancy without the waiver. If they disagree, then you can proceed cleanly to summary process. If you have a lease, you’re probably stuck.
MassLandlords: What’s the one thing you would change to improve the courts?
Housing Specialist: Staggered sessions. Why should everyone have their trial in the same slot? It creates long delays.
MassLandlords: What issues do you see over and over again?
Judge: Check your references. If you come to court trying to evict a “career tenant,” you’ll get my sympathy but nothing else if you haven’t done your job.
Please don’t issue two notices to quit. You do not help your case by muddying the waters, and you risk having your case dismissed. Issue one and stand behind it.
Pay for the constable to deliver a notice. If you send the notice certified and they don’t pick it up, you haven’t delivered it.
Do not be over-anxious to file. A 14 day notice means 14 full days. You can’t file until day 15. Make sure the constable you hired knows if they need to file for you as part of their duties.
MassLandlords: Is mediation worth it?
Judge: Do not refuse mediation. It’s well worth it because you get to hear in advance what’s going to come out in court. Plus sometimes you get an agreement and can avoid court.
MassLandlords: How much does tenant history play into a decision?
Judge: When I ask you to explain “why,” I cannot hear about all the other things that you’re unhappy about and consider them. I can only consider what’s on the written complaint. And remember that you cannot present hearsay. You must bring witnesses.
MassLandlords: Are security deposits commonly messed up?
Judge: Yes. You cannot comingle funds. You must pay interest, even if it’s a small amount.
Housing Specialist: Tell them the interest will come off the rent and tell them what their reduced rent will be for that month. Then take a check for that reduced amount. This beats you writing a check or issuing cash for small amounts.
MassLandlords: What’s the difference between “tenant at will” and “tenant at sufferance”?
Judge: A tenant at will is a continuing, lawful arrangement. A tenant at sufferance is someone who had permission originally but now the relationship has ended. For instance, if you rented to someone who overstayed the agreement without any kind of renewal, or if someone was invited in by the tenant.
If a tenant is “at sufferance,” you can give shorter notices. Get legal advice.
And on that good advice, we’ll end.
If you’re having issues with a tenant, ask another landlord for a second opinion, and get legal advice!