Site Search:

 

 

Challenging a Court-Ordered Eviction

 

If a judge enters an order in an eviction in favor of your landlord, depending on what kind of order it is, there may be a way that you can prevent or delay the eviction. You must, however, act quickly.

What Happens If a Court Orders You Out

If your landlord wins the eviction case, she will get a piece of paper called an execution , which gives the landlord permission to have a sheriff or constable move you out and put your things in storage. Form 21 is a sample Execution form. This form may vary from court to court.

A landlord can get an execution 10 days after the court enters a judgment .137 When the landlord gets the execution, she must then give it to a constable or sheriff and pay that person to move you out.138 Only a constable or sheriff can deliver the execution to you and move you out.139 A constable must give you 48 hours' written notice that you are going to be evicted. Usually, a constable does this by tacking a notice to your door or giving it to you.140 This notice must state the date and time a constable will move you out. A sheriff or constable can only move you out Monday through Friday between 9:00 a.m. and 5:00 p.m. You cannot be moved out on a legal holiday or a weekend.141

You can ask a constable for more time, although the constable does not have to give it to you. Because the removal and storage of your possessions can cost the landlord as much as $2,000 or more, you can try to work out an agreement with the landlord where, if she gives you more time to move out, you will leave voluntarily. The court must issue the execution within three months of the date the judgment was entered by a judge,142 and the landlord must use it within three months after it is issued.

If your eviction case was based on non-payment of rent and you have paid all of the rent due before your landlord uses the execution, your landlord will not be able to have you moved out and must return the execution to the court. In other words, if you pay all of the rent owed and your landlord accepts it, she will give up her right to use the execution and will not be able to have you moved out. However, your landlord does not have to accept the rent at this point.143

Note

If the constable physically evicts you from the premises, she must see to it that your possessions are placed in storage.144 The warehouse that stores the goods secures storage fees by taking what is called a warehouser's lien on the goods, which can be enforced by sale of your property after it has been held for six months without payment.145 You can postpone the sale for three months by paying half of the accrued fees plus reasonable costs.146 If your goods are damaged by the mover or storage company, they are probably responsible for the damage.147 See the Evictions section under Housing on MassLegalHelp for more information about the Eviction Storage Law.

Removing a Default Judgment

If you missed your eviction trial and a court entered a default judgment against you, this means your landlord wins the case and can evict you approximately two weeks from the trial date. If you had a good reason for missing the trial and you have a defense to the landlord's case, you can ask a judge to remove the default judgment. To do this, fill out the Motion to Remove Default Judgment form (in Booklet 6). Bring this form to the court as soon as possible. Ask the clerk to schedule a hearing so you can tell the judge why she should remove the default. Ask the clerk to schedule the hearing within 10 days of the trial date that is on your summons and complaint .

If the clerk cannot schedule a hearing before this date, you should fill out the form in Booklet 8: Stay and ask that the judge stop the eviction until a judge decides whether to remove the default judgment. This is called a stay of execution and is described below.

Postponing the Eviction

If, after a hearing, you lost your eviction case and you need more time to move, you can ask a judge to postpone your eviction. You can also ask for a postponement if you agreed to move out and have not been able to move yet. To do this, you must fill out the Stay of Execution form (see Booklet 8).

If a judge grants you a stay of execution , this order prevents the landlord from evicting you until the stay order is over. A judge has the power to freeze the eviction order for up to six months.148 If you or someone living with you is handicapped or 60 years of age or older, the court can grant you a stay for up to 12 months.149 A judge is less likely to grant a stay if you are being evicted for non-payment of rent or for some other reason which was your fault, or if you live in a hotel, lodging house, or rooming house for less than three consecutive months.150

If you are willing to leave, but need more time to find an apartment, ask the judge to grant you a stay. Bring a list of apartments you've called about or have seen to show the judge that you are making a sincere effort to find another apartment. As a practical matter, your chances of getting more time are greatly improved if you are sick, elderly, or have children. But remember that the judge is not required to give you more time.151

Appealing

If you lose your eviction case and still think you have valid legal claims that should prevent your eviction, you may appeal the court's decision. This means that you may have your case heard or reviewed again by a higher court. To appeal, you must act within 10 days of the court's decision.152

Where Do You Appeal

Where and how you appeal depends on what court your original eviction case was in.

If your eviction trial was originally in a housing court or a superior court, you appeal to the Appeals Court, which reviews the original decision to see if the judge made any legal mistakes. There is no second trial.

If your eviction trial was in a district court, you may appeal to the Appellate Division of the district court, which reviews the original decision to see if the judge made any legal mistakes. Again, there is no second trial.

How Do You Appeal

At the end of this book are three different appeals forms (Booklet 7, Booklet 7A, Booklet 7B). Make sure you use the right one. These forms will only get you started with an appeal. Appeals are complicated; you should try to get an attorney to represent you.

Before you can appeal your case, you may have to pay money into court to cover back rent and other costs. This is called an appeal bond .153 If you cannot afford an appeal bond, you should fill out the Affidavit of Indigency papers in Booklet 9 and ask the court to waive the bond (not require you to pay it). You must convince a judge that you either receive certain welfare or public benefits, have an income below 125% of the federal poverty level, or cannot pay the bond without depriving yourself or your family of the necessities of life (see Poverty Guidelines Chart). You must also be able to show that your appeal is not frivolous.154

If the apartment is in bad condition, you should ask that the amount of such appeal bond or rent payments be reduced to reflect the "decreased value" of the apartment.

Failure to make the ordered payments on time will end your appeal rights. The first payment is due six days after the court's decision.155 If, due to some substantial hardship, you cannot afford to keep paying the full rent while waiting for your appeal to come up, it may be possible to ask the court to reduce the payments. The court should balance the landlord's need to meet her expenses against your right to continue your appeal and the particular hardship you are facing.156 If a judge waives the bond, she can still require you to pay all or part of your current rent each month until your appeal is heard. If a judge denies your request, or if you believe the payments ordered are too high, you have six days to appeal this decision. If you are in superior court or housing court, you appeal to a single justice of the Appeals Court. If you are in district court, you appeal to the Appellate Division of the District Court. If the higher court orders you to pay the bond, you have five days to pay it or else your appeal is dismissed.157

Endnotes

137. G.L. c. 239, §5. Note that this time period differs from the standard 30-day period applicable to civil actions in the housing court and superior court.

138. The landlord's expenses for forcibly moving you out are considerable. If the landlord has to have your property moved and stored, it could cost her several thousand dollars. Only $2 is unconditionally allowed by statute, so the landlord may have trouble getting back any more from the tenant. G.L. c. 262, §17 provides: "In the service of an execution of ejectment the fees shall be: for demand, one dollar; for delivery, one dollar; for all necessary expenses, including packing, teaming and labor; and the officer may be allowed additional compensation by an order of the court from which the execution issued."
The courts have held that G.L. c. 262, §17 does not allow a landlord to recover from the evicted tenant the actual constable's fees or moving costs. In Strang v. Marifiote , 12 Mass. App. Ct. Dec. 91, 94 (1956), the landlord sued the tenant for $4.80 in court costs, a $25 constable's fee, and $50 moving costs. The court allowed him to collect only the $4.80, saying, "The plaintiff can only recover from the defendant the officer's fees allowed by [G.L. c. 262, §17]. Since there is no provision in it for a fee of $25.00 charged by the constable, that item was therefore properly disallowed." The court also upheld the disallowance of the $50 moving fee, holding that such a fee did not come under the provision for "necessary expenses, including packing, teaming and labor."

139. See Bing v. Roach , Hampden Housing Court, LE 1553-S-80 (Nov. 2, 1983) (tenant awarded double damages and attorney's fees for breach of quiet enjoyment where the landlord himself used lawful execution without assistance of sheriff or constable and did not present writ to tenants). See also McGonigle v. Victor H. J. Belleisle Co. , 186 Mass. 310, 313 (1904) (landlord has no authority to remove tenant's goods to a warehouse over tenant's objections); but see Finnigan v. Hadley , 286 Mass. 345, 347 (1934) (landlord has implicit authority to store the tenant's goods where tenant is absent for two months prior to the eviction). See also G.L. c. 239, §4, and PAB v. Cooper/Cooper v. PAB , Hampden Housing Court, 98-SP-3796/98-TR-0158 (Abrashkin, J., 1998), holding that a landlord who levies on a summary process execution and removes personal property from the premises cannot sell the property and must place it in storage.

140. G.L. c. 239, §3. Judge Abrashkin of the Hampden County Housing Court issued a memo (February 27, 1989) directing sheriffs and constables that the 48-hour notice period required prior to levying on an execution pursuant to G.L. c. 239, §3 does not include Saturdays, Sundays, and legal holidays. This is consistent with Mass. R. Civ. P. 6, which provides that in computing any period of time of less than seven days under any statute or rule, intermediate Saturdays, Sundays, and legal holidays are excluded in the computation.

141. G.L. c. 239, §3.

142. G.L. c. 235, §23 (added at 1987-1 Mass. Acts 728, §1). Any period during which the execution was stayed by the court or by agreement is excluded from the three-month period.

143. G.L. c. 239, §3. This protection applies where the tenant has paid the underlying money judgment and any use and occupancy that has accrued since the judgment entered.

144. G.L. c. 239, §4. See endnote 139 .

145. A "lien" is the right to take and sell someone's property to recover money owed, unless that money is paid back. G.L. c. 239, §4 gives the storer a lien for charges for storage that are imposed in accordance with the law.

146. Often, landlords pay from one to three months' storage in advance. If you remove your property within the pre-paid period, you would not have any storage charges and should not have to pay the warehouse to get your property out.

147. Cases have held that a constable is liable for damage that he negligently causes, and have said that he has a duty to use reasonable care when removing a tenant's goods. Gaertner v. Bues , 109 Wis. 165, 85 N.W. 388, 390 (1901) dictum ; Carroll v. Devitt , 107 Mo. 573, 17 S.W. 900 (1891).

148. G.L. c. 239, §9. The standard for granting a stay of execution is quite broad but is often overlooked. G.L. c. 239, §10 provides that a stay may be granted if, after making a reasonable effort, "the applicant cannot secure suitable premises for himself and his family elsewhere within the city or town in a neighborhood similar to that in which the premises occupied by him are situated. . . ." It should not be necessary for the tenant to prove that she has not been able to find any apartment anywhere in order to get a stay. However, the law says only that the judge "may" grant a stay. Since the judge has discretion, the more compelling your situation is, the greater your chances of getting a stay.

149. G.L. c. 239, §9.

150. G.L. c. 239, §9 as amended by St. 1986, c. 452.

151. If the judge grants a stay for less than the maximum length of time allowed by law, you can file a motion for an additional stay sometime before the end of the initial stay period. You should allow sufficient time to give the landlord at least one week's notice before the hearing on your motion and have the hearing scheduled before expiration of the initial stay.

152. G.L. c. 239, §5; U.S.P.R. 12.

153. G.L. c. 239, §5. "Such bond shall also be conditioned to pay to the plaintiff, if final judgment is in plaintiff's favor, all rent accrued at the date of the bond, all intervening rent, and all damage and loss which the plaintiff may sustain by the withholding of possession of the land or tenements demanded and by any injury done thereto during such withholding, with all costs, until delivery of possession thereof to such plaintiff."

154. The statute, G.L. c. 239, §5, has been amended several times. One somewhat recent amendment, St. 1985, c. 754, made waiver of the appeal bond mandatory where the tenant is indigent and has a non-frivolous defense. A defense is not frivolous merely because it lacks merit, and the court should not find a defense to be frivolous unless it does not have a "prayer of a chance." See Pires v. Commonwealth , 373 Mass. 829, 838 (1977).
The indigency requirement is automatically met if the tenant: (a) receives TAFDC, EAEDC, SSI, MassHealth (formerly Medicaid), or Massachusetts Veterans' Benefits; or (b) has after-tax income of 125% or less of the federal poverty level. G.L. c. 261, §27A. If the tenant does not automatically meet this standard, she must prove that she cannot pay the bond without depriving herself or her family of the necessities of life by filing a Motion and Affidavit of Income and Expenses.

155. Kargman v. Dustin , 5 Mass. App. Ct. 101, 359 (1977), discussed application of a previous version of the waiver statute. If you are indigent and have a non-frivolous appeal, the entire bond (but not current payments) must be waived. The current statute, G.L. c. 239, §5, as amended by St. 1985, c. 754, requires the tenant for whom the bond has been waived to pay rent in installments as it comes due and further requiring that "no court shall require any such person to make any other payments or deposits." If the judge misapplies this law and sets bond in the amount of back rent owed, the tenant should appeal the bond decision, as discussed below.

156. Kargman v. Dustin , 5 Mass. App. Ct. 101 (1977). In Warner v. DeCosta and Eaton , Essex Superior Court, 86-1994 (Flannery, J., August 28, 1986), the court reduced periodic payments from the contract rent of $600 to $300 based upon hardship to tenant who had lost income due to an auto accident.

157. G.L. c. 239, §5.


Produced by Faye B. Rachlin
Created July 2008


Find Legal Aid

You may qualify for free legal assistance from your local legal aid program.

If you are seeking a free attorney,  Find Legal Aid

Download the Chapter or the eBook

Ask a Law Librarian

If it's
Monday-Friday
between
9am and 4pm