Chapter 12 Evictions - MassLegalHelp

Using the apartment for illegal purposes.2If your lease says that your landlord can evictwithout going to court, this part of your lease isillegal and your landlord will still need to go tocourt to evict you in spite of what your leasesays. Also, if you have a lease, a landlord cannotincrease your rent during the lease period andthen evict you for not paying the amount of theincrease. Your rent is locked in for the entireterm of your lease (unless the lease has a valid"tax escalator" clause, which allows yourlandlord to increase your rent in certain limitedsituations). For more about tax escalatorclauses, see Chapter 5: Rent.and hope that tenants do not know their rights.This section will tell you some of the mostcommon ways that landlords illegally try to evicttenants.1. Lockouts andUtility Shut-offsIt is illegal for a landlord to take away yourapartment through "self-help" tactics. Yourlandlord has used self-help tactics and violatedthe law if she does any of the following thingswithout a court's permission: Moves your belongings out of yourapartment; Changes your locks (which is called a"lockout"); Shuts off your utilities (which is called a"utility shut-off"); or Interferes in any other way with your useof the apartment.2. Tenants without LeasesIf you do not have a lease and are a tenant at will,a landlord does not have to state any reason forwanting to evict you. Until individual cities orthe state changes the law, no fault evictions, wherea landlord is evicting a tenant who has donenothing wrong, are lawful in Massachusetts.A landlord may also evict tenants without leasesfor non-payment of rent and for using theapartment for illegal purposes.3But a landlord cannot bring a discriminatory orretaliatory eviction against a tenant. For moreinformation see the sections in this chaptercalled Retaliatory Evictions andDiscrimination.If your landlord attempts to take away yourapartment in any of these ways, she may beviolating both civil and criminal laws.5a.What You Can DoWhen Is Eviction IllegalWrite a Demand LetterIf your landlord threatens to lock you outor shut off any of your utilities, you may beable to prevent the landlord from takingthis illegal action by sending her a demandletter. This letter informs her that she will becommitting an illegal act and that you willtake legal action to enforce your rights ifshe breaks the law. See the sample demandletter (Form 18). Save a copy of this letterso that if your landlord does not actproperly, you have proof that the landlordknew she was violating the law.In order to save money or get tenants outquickly, some landlords try to intimidate tenantsor force them out of their apartments withoutgoing to court first. Others try to take shortcutsGo to CourtIf a landlord locks you out of yourapartment or shuts off your utilities, youshould immediately go to court to get whatIf you do not have a lease, a landlord must sendyou a proper notice to quit to terminate yourtenancy.4 For more information about thenotice, see the section in this chapter calledReceiving Proper Notice. To figure outwhether you are a tenant at will, see Chapter 4:What Kind of Tenancy Do You Have.254 Chapter 12: Evictions

is called a temporary restraining order, or“TRO.” A TRO tells your landlord to stopdoing something illegal and orders her toput you and your belongings back into yourapartment and restore any utilities she mayhave shut off. A TRO is usually thequickest way to get your apartment back.You may also be entitled to money damagesof at least 3 months' rent, plus any courtcosts and attorney's fees.6 For more aboutlawsuits for money damages see Chapter13: When to Take Your Landlord toCourt - Breach of Quiet Enjoyment. Seea sample Temporary Restraining Order(Form 15).Call the Police and Filea Criminal ComplaintIf your landlord locks you out of yourapartment or shuts off your utilities andyou cannot resolve the problem by dealingdirectly with the landlord, you can call thepolice and report the incident. Lockoutsand utility shut-offs are crimes. As apractical matter, a few words from a policeofficer may be enough to convince thelandlord to stop the illegal activity.Sometimes, however, the police do notknow the law or they are reluctant to getinvolved in disputes between landlords andtenants. A police officer may tell you thatsuch disputes are "civil," not criminal,matters. This is not true. Lockouts andutility shut-offs are crimes and arepunishable by a fine of 25 to 300 orimprisonment of up to 6 months.7Unfortunately, filing a criminal complaintdoes not usually lead to a quick solutionbecause it may take a court several weeks toschedule a criminal case for a hearing. Formore about how to file a criminalcomplaint, see Chapter 8: GettingRepairs Made - Criminal Complaint.2. Retaliatory EvictionsIt is illegal for a landlord to retaliate against youbecause you have engaged in certain activitiesprotected by the law.8 You cannot be evictedfor: Notifying your landlord in writing ofviolations of the state Sanitary Code;9 Reporting your landlord to healthinspectors or other officials for violationsof law; Withholding rent because of badconditions;10 Taking legal action against your landlord toenforce your rights; Organizing or joining a tenantsorganization; or Taking action under laws that protectindividuals from domestic abuse orharassment by: seeking a restraining order against anabuser, someone who has harassedyou, or someone who has sexuallyassaulted you; asking your landlord to change yourlocks for safety reasons; reporting to a police officer or lawenforcement an incident of domesticviolence, rape, sexual assault, orstalking; or reporting a violation of an abuseprevention or anti-harassment order.11If a landlord tries to evict you or sends you aneviction notice, a rent increase notice, or anotice of any substantial changes in the terms ofyour lease or tenancy within 6 months of yourhaving engaged in any of the activities listedabove, a court must "presume" that the landlordis retaliating against you.12 If a court decides thatChapter 12: Evictions 255

the landlord was retaliating, you cannot beevicted.If you have to fight an eviction in court, see thesection in this chapter called Defenses MayPrevent Eviction for information about howto raise the issue of retaliation.3. DiscriminationIt is illegal for your landlord to evict you on thebasis of your race, color, religion, nationalorigin, sex, gender identity, sexual orientation,age, genetic information, ancestry, maritalstatus, disability, or status as a veteran. It is alsoillegal for a landlord to evict you because youget a rent subsidy or receive public assistance.13Your landlord is also discriminating against youif she subjects you to unwanted sexual attentionor harassment.14If you feel that your landlord is evicting youbased on any of these factors, read Chapter 7:Discrimination for more information aboutwhat constitutes illegal discrimination.Receiving ProperNoticeBefore a landlord can evict you, she mustproperly notify you that she is ending orterminating your tenancy. To do this, a landlordmust give you a written notice called a notice toquit.15 Do not ignore a notice to quit.A notice to quit says that you must "deliver up"or "vacate" your apartment by a certain date.This can be a very intimidating document, butyou do not have to move out by the datelisted on the notice. The purpose of a noticeto quit is to give you warning of the landlord'sdesire to terminate your tenancy, which is only thefirst step in the eviction process. If you do notmove out, the landlord can begin an evictionaction against you in court.The notice should tell you if the landlord isterminating your tenancy for reasons related to256 Chapter 12: Evictionsnon-payment, some other lease violation orviolation of the law, or for no reason at all (nofault). Save the notice to make sure that if yourlandlord does bring you to court, she states thesame reason for the eviction on the courtnotice, which is called a summons and complaint.16Furthermore, the notice to quit must have yourcorrect address on it and should name alltenants (anyone who signed the lease or alladults in a tenancy at will situation).17A notice to quit does not determine who isallowed to have legal possession of yourapartment. If your landlord decides to take youto court, only a judge can decide whether you oryour landlord should have possession of yourapartment. Again, you do not have to moveout by the date on the notice to quit.If you receive a paper that says execution onthe top of it, you must act IMMEDIATELY.An execution is a court order that says the landlordcan move you out. If you get an execution,you may be able to stop or postpone aneviction, but you need to act immediately.For more information read the section at theend of this chapter on Postponing theEviction.1. Receiving a Noticeto QuitA landlord can use a variety of methods todeliver a notice to quit, including the following: Anyone can personally deliver it to you,including the landlord. A landlord may leave it with your spouse.18 A landlord may send it to you throughregular first-class mail. A sheriff or constable may personallydeliver it to you, although this is notnecessary.A landlord must always prove to a judge thatyou actually received the notice in order toproceed with an eviction.19 One way that a

landlord may do that is if your case goes to trial,she can put you on the stand to ask if youreceived the notice to quit.2. Non-Payment of RentIf your landlord wants to evict you for nonpayment of rent, you must receive a 14-daynotice to quit.20 A 14-day notice to quit doesnot mean you have to move in 14 days. A14-day notice to quit means your tenancy isterminated 14 days after you get the notice. Thisis the first step in an eviction.If you have a lease, any clause in the lease sayingthat the landlord can end your tenancy for nonpayment of rent without giving you a 14-daynotice is illegal.21Whether or not you have a lease, you canprevent an eviction if you "cure" the nonpayment (pay the rent owed). If you do nothave a lease, a notice to quit must tell you thatyou have a right to cure the non-payment. Ifyou have a lease, a notice to quit does not needto state that you have a right to cure, but youhave that right to cure up to the date that youranswer is due in court.22For more information about how to cure nonpayment of rent in a way that protects yourtenancy, read the section in this chapter calledPaying the Rent Owed.3. Rent IncreasesAt the same time that a landlord gives a tenantat will a notice to quit terminating the tenancy,she can also offer a new tenancy at a higherrent.23 You may accept the increase by payingthe higher rent or you can reject the increaseand just pay the old rent.If you continue to pay your old rent and refuseto pay the increase, your landlord must acceptyour old rent, although she can start an evictioncase in court. The only way you can be evicted,however, is if the notice you receive is a 30-day(or rental period) no fault notice to quit.24 Thelandlord cannot send you a 14-day notice to quitfor non-payment of rent because you are payingthe rent.25 You just never agreed to pay the newrent. If your landlord attempts to use a 14-daynotice to evict you based on your non-paymentof an increase in rent, bring the rent increaseletter, rent receipts or canceled rent checks, andthe notice to quit to court and ask a judge todismiss the case.If your landlord accepts the old rent amountafter the expiration date on the notice to quitand the notice to quit does not state clearly thatany future payment will be for “use andoccupancy only” and not for rent, yourlandlord has given up the right to evict youusing this notice.If your landlord refuses to accept the rent, sendyour payment to her (or better still to her lawyerif the notice to quit came from a lawyer) with aletter explaining that you are paying the old rentand refusing the offer to enter into a newtenancy at the higher rent. You should send it toyour landlord by certified mail and keep a copyfor yourself. If your landlord returns the moneyto you, put it aside in a safe place so that if youare ordered to pay it sometime in the future, itwill be available to you.4. Tenants with LeasesIf you have a lease, it will specify the reasonsthat your landlord can terminate your tenancyand the steps she must take to do this (whichmust happen before the date the lease isscheduled to end).If your landlord tries to evict you before yourlease has ended, most leases require landlords toterminate your tenancy by first giving you awritten notice to quit before proceeding to court.Although many leases require 7 days' notice, theamount of time is not set by law and may varyfrom lease to lease. Check your lease to see howmany days' notice is required before a landlordcan take the next step in the eviction process,which is to go to court.Chapter 12: Evictions 257

If your lease has an option to renew and you failto renew it, your landlord does not need to sendyou a notice to quit if she wants you out at theend of your lease. In this case, the day after yourlease ends, your landlord can immediately filepapers in court and begin an eviction casewithout giving you a notice to quit.Check your lease to figure out whether itautomatically renews itself or whether you mustrenew it to prevent it from automatically ending.For more about how to figure this out, seeChapter 4: What Kind of Tenancy Do YouHave - How Long Is Your Lease Valid.If your landlord accepts your rent after yourlease ends, you automatically become a tenant atwill and you are entitled to get a 30-day (or rentalperiod) notice to quit before a landlord files aneviction case in court.265. Tenants without LeasesIf you do not have a lease, you need to firstfigure out whether you are a tenant at will or atenant at sufferance (for more information seeChapter 4: What Kind of Tenancy Do YouHave).If you are a tenant at will, your landlord mustsend you a notice to quit. There are basically 2types of notices your landlord can send you ifyou are a tenant at will: 14-day notice for non-payment of rent; or 30-day (or rental period) notice for any otherreason or for no reason.Some landlords try to cover all bases by sendingboth a 14-day and a 30-day notice to quit. Thereason is that if you stop the non-paymenteviction by paying the rent you owe, they wantto still go ahead with the eviction based on a 30day notice. This violates the legal requirementthat the notice state an absolute terminationdate.27 If you get both a 14-day and a 30-daynotice, you should pay the rent within the“cure” period, if you can, and file a motion todismiss because the date that the tenancy is258 Chapter 12: Evictionssupposed to terminate is not clear.28 For moreabout how to cure non-payment of rent, readthe section in this chapter called Paying theRent Owed.If your lease has expired or you are otherwise atenant at sufferance, your landlord can begin aneviction case in court without giving you anotice to quit.a.14-Day NoticeA landlord can send you a 14-day notice to quitfor non-payment of rent on any day of themonth. A notice to quit for non-payment ofrent cannot demand any fees (such as late fees,attorney’s fees, or constable fees), only unpaidrent.29 If your landlord sends you a 14-daynotice to quit, it must tell you that you have aright to "cure" the non-payment.30 This meansthat if you pay the amount of rent you owewithin 10 days of receiving the notice, you canprevent an eviction, as long as this is your first14-day notice within the past 12 months.31 If thenotice to quit does not tell you about this right,you actually have until the answer date to pay allrent.32 If you do not pay the amount of rentyou owe within this 10-day cure period, youstill do not have to move out in 14 days. Formore information about "curing" a nonpayment of rent, see the section in this chaptercalled Paying the Rent Owed.b.30-Day (or Rental Period) NoticeIf your landlord tries to evict you for any reasonother than non-payment of rent, or for noreason at all, she must give you a 30-day (orrental period) notice to quit. You must receive thenotice at least 30 days or 1 full rental period inadvance, whichever is longer.33 (A rental periodis the time between the dates when rentpayments are due.)The date on the 30-day notice must terminate yourtenancy on a day on which your rent is due.34 Ifyou pay weekly, the notice must terminate onthe day of the week on which your rent is due.If there is no agreement on the specific rent

day, the rent day is considered to be the last dayof the month.35 For example:If your rent is due monthly on the first ofthe month, and your landlord states in thenotice that she wants to terminate yourtenancy by September 1, you must receivethe notice to quit in writing on or beforeAugust 1. If you do not receive the noticeuntil August 2, it is invalid and you cannotbe evicted based on it.c.No Specific Time Statedon the Notice to QuitYou may receive a notice that says that yourtenancy terminates "at the end of the rentalperiod which begins after receipt of thenotice."36 For example, if you receive this noticebefore August 1, it will terminate your tenancyon September 1. If you receive it on August 1or any time between August 1 and August 31, itwill terminate your tenancy on October 1.37Note: Any agreement between you andyour landlord to terminate your tenancywithout giving you a notice to quit is illegaland will not be enforced by the court.386. When Can a LandlordGo to CourtA landlord cannot begin an eviction case incourt until after you receive a proper notice toquit and the time period on the notice hascompletely passed. If a landlord files an evictioncase before the time period on your notice haspassed, a judge must dismiss the case upon yourrequest.7. Evictions for DrugRelated or Other UnlawfulActivityThe problem of illegal drug dealing has becomea growing concern of both tenants andlandlords. While tenants fight for the right tolive in a safe environment, free from theviolence that often accompanies illegal drugdealing, and while landlords may be obligated toevict tenants whose illegal activity may endangerother tenants, the mere mention of the word"drugs" by a landlord or her lawyer immediatelybrands tenants. As a result, tenants and theirfamilies who may not be guilty of any crime arebeing illegally evicted without notice or a chanceto defend themselves.In Massachusetts, a law enacted over 150 yearsago, commonly referred to as a nuisance law,gave landlords the right to terminate a tenancy withno notice to the tenant if an apartment was usedfor prostitution, illegal gambling, or the illegalkeeping or sale of alcoholic beverages.39 Thismeant that a landlord could skip the notice toquit step in the eviction process and couldproceed straight to court to get permission totake possession of an apartment. Over the years,the legislature amended the law to include thepossession, sale, or manufacturing of illegaldrugs and certain weapons and explosivedevices. This law also allows a subsidizedhousing provider to end or void a lease where atenant or household member used or threateneduse of force or violence against an employee ofthe housing provider or against any otherperson who is legally present on the premises.40Tenant advocates take the position that underthis nuisance law, a landlord must still file aneviction case, known as a summary process case,and that the only difference between an evictionunder the nuisance law and a regular evictioncase is that the landlord does not have toterminate a tenancy or give a tenant a notice toquit before going to court.41 This nuisance law,however, can cause great confusion on the partof landlords.42 As a tenant, you may be facedwith any one of the following situations:a.You Are Illegally Locked OutSome landlords think this nuisance law meansthey do not need to go to court to evict atenant. This is absolutely wrong. If a landlordtries to evict you by changing the locks ormoving you out without an order from theChapter 12: Evictions 259

court, this is an illegal lockout and you can useall the strategies described in this chapter in thesection called Lockouts and Utility Shut-offs.b.You Receive a Court Summonsand ComplaintIf the first notice you get that a landlord wantsto

Chapter 12: Evictions 253 Chapter 12 Evictions by Maureen E. McDonagh and Julia E. Devanthéry Italicized words are in the Glossary The first and most important thing to know about eviction law in Massachusetts is that a landlord cannot make a tenant move out of her home without going to court first. No matter