By Eric Weld, MassLandlords, Inc.
When the state’s moratorium on evictions ends – and it will eventually! – rather than getting before a judge to resolve tenant disputes, you might consider other, less arduous, alternatives to eviction. Whether your goal is to get your tenant to move out or to agree to preserve the tenancy, you have several options that could save time and money, and maybe avoid court altogether.
We recognize that for many landlords, there will be no choice but to file for eviction. But the reality is, in the aftermath of the eviction moratorium now in place, district, municipal and housing courts will likely be overwhelmed with a backlog of eviction and other housing cases.
Even a normal number of evictions, having been deferred since March, would be enough to back up the court system. Add untold numbers of additional evictions due to COVID-19-related circumstances and it is very likely your summary process case will be delayed beyond the usual. That means more expensive evictions, in time and money, as landlords await their litigation with units possibly occupied by unpaying tenants, as well as ongoing utility costs, taxes and upkeep.
The following alternatives to eviction might save you substantial money, time and stress. If possible, check with an attorney before moving forward with these suggestions, to determine the most suitable course for your circumstances.
First: A Conversation
Whatever plan of action you intend to take to resolve nonpayment or other tenancy issues once the eviction moratorium is lifted, it’s essential that you attempt to have a conversation with your tenants first.
You need information in order to decide the best solution, for both you and your tenant. At least, you need to know why they have stopped paying rent. Is the rent stoppage temporary? Is it due to COVID-19 and/or the response? Are there public resources, such as RAFT or ERMA, available to restore rent payment? What are your tenant’s intentions? Their options?
Once you have a clearer picture, you can make informed decisions about what to do next, possibly in collaboration with your tenant. If your tenant has made it clear that they have no intention or means to pay rent, that may require a different solution than you’d use for a tenant who temporarily lost income but has applied for emergency rental assistance and plans to make good on rent owed.
When you’re satisfied that you’ve got a clear idea of your tenant’s circumstances, you can decide how to move forward. That might mean pursuing resolution outside of court, or proceeding with court action. If court is the way forward, there will still remain the possibility, on trial day, of reaching a court-enforceable agreement, or continuing on to trial.
Let’s look at some further eviction alternatives that you, as a landlord, might consider.
Alternative to Eviction #1: Altered Rent Payment Plan
Good tenants are worth keeping. If you have or had a good tenant – one who paid rent on time and complied with lease parameters before COVID-19 hit, but who has since delayed or stopped paying rent – you may want to make concessions to work with them and their situation.
Especially if your tenant is, say, temporarily furloughed from their job and has been doing their best to pay partial rent, you could work out a payment arrangement that spreads out their back rent owed over several months once their previous level of employment is restored. By doing so, you can minimize the economic impact on their finances while still receiving full rent.
Of course, there’s a limit to how long you can extend your tenant’s rent arrears. Three months? Six months? Nine? You might discuss a few scenarios with your tenant to come to an agreement. It likely depends on their income and how much is owed, among other details.
But as long as you both can agree on a payback arrangement and a plan for the tenancy to be restored in good standing within a satisfactory timeframe, an altered payment plan is a far better alternative to eviction.
Alternative to Eviction #2: Exchange of services
This is related to alternative #1 and applies to circumstances in which you have a historically good tenant that you’d like to keep. If your tenant is able-bodied and capable of or skilled in certain tasks, consider suggesting an exchange of services in lieu of rent. If they are out of a job due to the pandemic and response, this might be a viable way to realize some value to offset owed rent.
Lawn-mowing and landscaping, snow removal, painting, cleaning and light maintenance are all ongoing jobs that every property requires. Rather than hiring outside contractors for these jobs, you might have the means for a win-win situation by putting your tenant to work to offset rent.
This alternative allows for creativity, especially if you and your tenant are on friendly terms. Is your tenant a talented musician? Maybe they could teach you or your children to play an instrument in partial exchange for rent. Do they speak a language you’d like to learn? Set up weekly tutoring (this could be accomplished via Zoom or other online meeting platforms). If you are both comfortable meeting in person, perhaps they could even babysit.
Whatever services you agree your tenant will provide in exchange for rent, be sure to set up a structure for payment, with precise and agreed-upon values (measured in time worked and dollars earned per hour). Of course, this must be an arrangement entered into voluntarily by both you and your tenant. Write the agreement up in detail on paper that you will both sign, as a contract or addendum to a lease, to avoid disagreements later.
If you decide to work with this alternative, it’s very important that you comply with all payroll tax and worker’s compensation laws.
Alternative to Eviction #3: Partial rent deferral or forgiveness
Again, if you have a good tenant who has stopped paying or reduced their rent payments because of COVID-19 and the response, and if your financial position can sustain it, you could consider deferring payment of rent in arrears, or even accepting a percentage of what is owed.
Deferring payment for a period of a few months could allow your tenant to regain their financial footing, or catch up on bills after finding new employment or resuming their job after a furlough. In this scenario, you receive the owed rent in full, albeit on a delayed schedule (interest should not be applied to back rent owed during deferment). You also will retain a good tenant and avoid the headaches and fees that can accompany eviction.
Forgiving a portion of rent owed is never an easy decision. But sometimes it’s the smarter business calculation. Ideally, the amount you forgive is considerably less than what you would pay for a possibly prolonged eviction process. Which is wiser, you might ask: spending potential thousands of dollars and who knows how many hours on the process of evicting a tenant that you would like to keep? Or giving up a lesser amount, avoiding hours in court, fixing your losses now rather than leaving the issues unresolved indefinitely, and keeping a good tenant who is now back on their feet?
Alternative to Eviction #4: Cash for keys
Cash for keys can be a straightforward process in which a landlord pays a tenant cash, or provides something of similar value, to a tenant in exchange for the tenant voluntarily handing over the keys and moving out of the rental by an agreed-upon date and time.
Within that simple plan, however, there are several caveats and important details to consider. MassLandlords recently wrote in depth about cash for keys.
Alternative to Eviction #5: Use a mediator
In the event you and your tenant agree on the need to part ways, or if you both want to reach an agreement that preserves the tenancy but can’t agree on the terms, you might consider using a mediator.
A trained and qualified mediator is an unbiased professional who will take into account all the parameters of the situation and help the landlord and tenant arrive at a mutually agreeable and satisfactory solution that both expect will be carried out. The mediator’s objective is also to make sure both parties understand their rights, and are making a legally informed decision when entering into a mediation agreement.
A sound move-out agreement should include the following: a time frame for the tenant to move out, a settlement on any rent owed to the landlord, detailed agreement on the condition the rental will be in upon move-out, and any other details that will bring the landlord-tenant relationship to a successful end.
An agreement to preserve the tenancy would include details such as a payment plan, a timeline for the landlord to make certain repairs, perhaps a plan for the landlord to gain access to the unit, resolution over the security deposit, and more.
Once you’re within a court process, court-referred mediators – provided for free in some districts – can be made available. Mediators may also be hired independently through the various referral sources listed at the end of this section.
MassLandlords’ recommendation: Always try mediation as a first step. Participation in mediation is voluntary on the part of the landlord and tenant. You will still have further options to pursue if your attempt at mediation doesn’t work.
Mediators have no power to impose a binding decision. However, if you are using mediation within the court process – whether in housing, district or municipal courts – you can reach a court-enforceable agreement that would have the same effect as if a judge decided the case.
Although mediators are often licensed attorneys, there are non-lawyer mediators and counselors who can also provide excellent mediation services if you want to find one independently. MassLandlords also has a professional Helpline that offers landlord counseling and has a certified mediator available.
Opting for mediation instead of pursuing eviction can save significant time and money while strengthening tenancy relationships. Mediation can also yield results now, in a time-dependent way, that you can rely on. Mediation often works well and is highly encouraged.
Here are a few online resources for mediation services:
Alternative to Eviction #6: Binding arbitration
The arbitration process is related to the mediation process in that in most cases, both parties voluntarily consent to participate. Then, at least initially, the parties present their cases in turn, offering evidence and documentation.
The rules of arbitration are more formalized than for mediation. With arbitration, whether it takes place in or out of court, the decision is handed down by the arbitrator, in contrast with mediation, in which the parties reach a decision. An arbitrator’s decision is legally binding and is usually unable to be appealed. Additionally, the parties sign documentation stating that they will abide by the arbitrated decision.
Alternative to Eviction #7: Termination or nonrenewal of lease
This is potentially an uncomplicated and legally sound way to get a tenant to move out of your rental – provided the tenant complies with your request.
As the timing may align with your need to have the rental unit empty, simply inform your tenant – ideally with at least a rental period or 30 days notice – that you do not plan to renew their lease and thus the tenant should plan to move out. In most instances, your tenant will respect your request and move out on or before the lease expiration date.
If, instead of having a fixed term tenancy, you have a tenant-at-will rental agreement, you would need to give your tenant a rental period/30 days notice that the tenancy will end, which will pressure them to move out by the end date of that termination period in order to avoid legal action.
If you are trying to get your tenant to vacate the rental for no-fault reasons such as renovations on the property or listing it for sale, you could consider giving an extended moveout notice to allow your tenant ample time to find alternative living arrangements. You could inform them of your planned lease termination or nonrenewal with two, three or as many months’ notice as may accomplish the task.
The challenge with this alternative is what happens if a tenant does not move out after your tenancy termination notice expires. Because tenants cannot be forcibly removed until a judge issues a writ of execution followed by a constable-assisted eviction, your tenant, unfortunately, is allowed to stay in the rental as an illegal holdover, requiring you to go to court.
Alternative to Eviction #8: File a breach of contract action
This alternative doesn’t avoid court, but it is an alternative to eviction. It is unclear, however, whether this is a true alternative during the eviction moratorium. Some breach of contract cases are not being heard in state courts.
Instead of filing for eviction, you have the legal right to file a breach of contract lawsuit for money damages. This is a civil action in which you must prove that you have suffered damage as a result of monies contractually owed to you that have not been paid.
To initiate a breach of contract action, you first need to file a complaint with the clerk of the court to which you will bring the lawsuit. Read an outline of preliminary and subsequent steps for filing a breach of contract.
Things NOT to do instead of eviction
The above suggestions are legal and alternative ways that you can persuade your tenant to vacate your rental, or, in some cases, to reach tenancy preservation agreements without needing to go to trial.
There are a few illegal methods that some landlords have resorted to over the years, usually with disastrous and backfiring results. No matter how much you want and need your tenant to move out, and no matter how tempted you might be to employ extreme measures, do not allow yourself to be tempted into resorting to these illegal and potentially dangerous means:
- Never physically bar your tenant’s access to their rental (by changing locks, or, even worse, confronting them in person). It will almost always lead to a bad ending, potentially in the form of treble damages charges against you, possible criminal charges, or bodily harm.
- Never enter your tenant’s unit and toss their belongings outside. It’s illegal, disrespectful and dangerous.
- Never stop electric, water or other utility services. You are not allowed to render your tenant’s unit uninhabitable while they are living there.
- Never threaten your tenant in any way.
The best solution depends on something that is lawful and agreeable to your tenant whenever possible
Eviction in Massachusetts can be a costly, time-consuming procedure. For owner-occupied and mom-and-pop housing providers, an eviction can take a significant bite out of annual rental revenue. Before embarking on an eviction process, it’s important to know there are alternatives available.
Depending on the reasons you need your tenant to vacate their unit, or when you need to address issues that could lead to eviction, an alternative to eviction might better suit your needs while saving money, time and aggravation.