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Fighting an Eviction in Court

 

Overview of the Eviction Process

Eviction cases are technically called summary process actions. This is because the procedures for eviction cases are designed to "process" cases in a "summary" or swift fashion.59 The purpose of a summary process case is for a judge to determine who should have possession of your apartment—you or your landlord. Only a court can force you to leave your home before you are ready. At the end of this chapter is a timeline that will give you a general overview of the eviction process. The timeline will give you important time frames to keep track of.60 As you can see, there are many steps that a landlord must take before she can have a sheriff or constable move you out; remember, you do not need to move out when you get a notice to quit.

Volunteer attorneys come to some courts on eviction days and offer advice and limited assistance to unrepresented people. Individuals do not have a right to a court appointed attorney in an eviction case (as people usually do in criminal cases) and these volunteers are not there to become your lawyer in the case, but rather to offer trial day brief advice and assistance. If you see that there are volunteer attorneys in court on your hearing date be sure to approach them and ask for help.

Getting a Summons and Complaint

To start an eviction case in court, a landlord must serve you with a summary process summons and complaint. This document must tell you why the landlord is evicting you and why your landlord terminated your tenancy.61 The summons and complaint cannot be served on you until after your tenancy has been properly terminated.62 See a sample copy of a Summary Process Summons and Complaint, Form 19. This sample will show you the information you need to pay attention to on your summons.

The summons and complaint must be served by a sheriff or a constable who is authorized by law to serve court papers.63 A sheriff or constable must personally hand you a summons and complaint or leave it at your apartment.64 You may find it under your door, in the entrance hallway, or in your mailbox. If a summons and complaint is left at your apartment instead of handed to you personally, the landlord must also send you a copy by first-class mail.65 If a summons and complaint is not served by someone legally authorized to serve court papers, you may ask a court to dismiss the case.66

Important Information

When you receive a summons and complaint, read it carefully. It will tell you the reason your landlord is trying to evict you. The summons and complaint should state the same reason for eviction listed on your notice to quit. If it does not, the court may decide to dismiss the case.67

The summons may say that you are behind on your rent. If it does it should list the months and amounts owed at the time the case was filed, but cannot include late fees, any unpaid portions of a security deposit, or other property maintenance or constable fees.68 It may say that you have violated your lease or rental agreement in some other way or that you are a tenant at will and that your landlord is evicting you for “no fault,” which means that she is not claiming that you did something wrong, but she wants her apartment back nevertheless.

Important Dates

As soon as you get a summons and complaint, you will need to pay attention to four important dates:

  • Entry Date
  • Answer Date
  • Original Trial Date
  • Rescheduled Trial Date (this is not listed on the summons and complaint, it is two weeks after your original trial date)

The Summons and Complaint (see Form 19) will show you where you will find these dates. Form 19 is a sample; this form may vary from court to court.

  • Entry Date
    Before a landlord gives a summons and complaint to a sheriff to serve, the landlord must choose an entry date . An entry date is the deadline by which your landlord must actually enter or file the complaint with the court, pay the entry fee, and prove that she has actually served it on you.69 An entry date can be any Monday at least seven days, but not more than 30 days, after the date that you were served the summons. If the entry date is a legal holiday, the complaint is entered on the next day the court is open.70

    When the landlord files a summons and complaint, she must attach a notice to quit , if it is legally required, and other necessary papers.71 If the landlord fails to file the necessary papers by the entry date, you should ask a judge to dismiss the case.

  • Answer Date
    The answer date is the date by which you must deliver to the court and your landlord (or the landlord's lawyer, if she has one) a document called an answer.72 The answer is the written document you use to tell the court your side of the story. The answer date is sometimes shown on the summons and complaint. If it is not clear from the summons and complaint, contact the clerk and ask her when your answer is due. You can use the form Booklet 3: Answer. Before filling it out, read the section in this chapter called Filing Your Answer.
  • Original Trial Date
    The summons tells you the day that your case is scheduled for a trial ( original trial date ). It will usually be the second Thursday after the entry date , although it may be different in some courts.73 If you file discovery with the court and your landlord or landlord's lawyer (if she has one) by the answer date , the court will automatically reschedule the original trial date and postpone it for two weeks. For more information see the section in this chapter called Getting Information Through Discovery.
  • Rescheduled Trial Date
    If you request discovery from your landlord, your original trial date will automatically be postponed for two weeks to a rescheduled trial date.74 You have to calculate this date yourself; it is not listed on the summons and complaint. Most courts do not send out notice of this new date and it is your responsibility to be sure that you are in court on time on the Rescheduled Trial Date.

    Note on Postponing Your Case:

    If you know that you will not be able to appear in court on your trial date, you should ask your landlord to postpone ( continue ) the case to another date. If the landlord agrees, ask the court to make sure that the date has been changed. If your landlord refuses to continue the case and you have a good reason for a postponement—for example, you will be in the hospital on the trial date—explain your situation to the court clerk and ask for a continuance .75

Transferring to Housing Court

If you live in an area with a housing court and your landlord files an eviction case in a district court, you have a right to transfer your case to a housing court.76 The advantage of transferring an eviction case to housing court is that judges in housing court are more familiar with housing laws than district or superior court judges, who handle many different types of cases. Housing courts also have the staff and expertise to better help people who do not have a lawer to complete the process.

There are five housing courts in Massachusetts.77 To figure out whether there is one in your area, see Chapter 15: Using the Court System. To transfer your case, you only have to do two things:

  1. Fill out a Transfer form (Booklet 5).
  2. Deliver the form to the district court, the housing court, and your landlord (or her lawyer) before your case is heard in the district court. Keep a copy for yourself. You can deliver this form up until the day before the original trial date.78

If you transfer your case to housing court, your case may be postponed and the housing court will contact you about the rescheduled trial date.79 Even if you transfer your eviction case to housing court, however, you must still file your answer and discovery on the answer date listed on the summons. If the case has not been transferred by the answer date, you must file your answer and discovery with the district court.

Filing Your Answer

After you receive a summons and complaint, you must fill out a document called an answer.80 The answer tells your side of the story and outlines what laws protect you. An answer includes:

  • Defenses: The legal reasons why you should not be evicted. Defenses are very important because they can help you win your case.
  • Counterclaims: Your legal claims for money against your landlord. Counterclaims are important because you can use them to reduce the amount of rent you owe your landlord. If your landlord owes you more money than you owe her, you cannot be evicted in a non-payment or no-fault eviction case.

You can obtain an Answer form from the court, write your own answer, or use the form at Booklet 3.81 This answer form lists the most common defenses and counterclaims tenants can use to prevent an eviction. When you fill out the answer form, do not be afraid to list all defenses supported by the facts. If you want to add more defenses after you file your answer in court, you will have to ask permission from a judge, and she might not grant it. For more information see the section in this chapter called Important Legal Defenses and Counterclaims.

The answer date is also your deadline to ask for a jury trial. A trial by a jury of your peers is a constitutional right, but you must make your request (called a “demand”) by the answer date deadline to be entitled to one. A trial by a jury of your peers may lead to a better outcome, though this is not a guarantee. Be sure to tell the judge on your hearing day that you have requested a jury trial because if the judge holds a trial (called a “bench trial”) without being informed of your jury request, you could lose your right to a jury trial.82

Note

Since jury trials are sometimes difficult for the court to accommodate, they can take some time to schedule. During the time between your demand and the trial, your landlord has a right to ask the court to order you to pay rent pending the trial.83 This is called a motion for use and occupancy. If your landlord files this motion, be sure to explain to the court what you believe the apartment is worth given its current condition (meaning, list any problems in the apartment and how they impact your ability to use your home).84 The court will set an amount that you need to pay, and if you fail to do so, you may lose your jury demand.

You must file your answer with the court and then give a copy to your landlord or, if she has a lawyer, to the lawyer by the answer date. If the answer date falls on a legal holiday, you may file your answer on the next day court is open.85

Showing Up in Court

Even if you have not filed an answer, you should still show up for trial. When you go to court, bring your answer and ask the judge to allow you to file it. Be prepared to tell the judge why you have not yet filed it. If the judge lets you file your answer on your trial date, the landlord will then have the option to proceed with the case that day or have the trial postponed for one week.86

If you do not show up in court on your trial date, you will be defaulted. An entry of a default judgment in the court records means that you automatically lose your case, unless you can get the court to "remove" the default.87

If you have defaulted, the court should send you a notice that a default judgment has been entered against you.88 You should go to court as soon as possible to ask the judge to remove the default. In most cases, a judge will remove the default if you go to court immediately, have a good reason for not having come to court on your trial day, and have valid defenses or counterclaims. Examples of good reasons for not appearing in court include not receiving notice of the hearing, serious and documented illness, or your landlord's having told you the case was worked out and that you did not have to go to court. Lack of transportation, not having child care, or not wanting to miss work may not be considered good reasons. For information about how to remove a default, see the section in this chapter called Removing a Default Judgment.

If you appear in court on the trial date but the landlord does not appear, the court should dismiss the case.89 If you file an answer and neither you nor your landlord show up for trial, the case will be dismissed seven days after the trial date, unless either party requests a new trial date within the seven-day period.90 If no one requests a new trial date, you win and you get to stay in the apartment. If you have made counterclaims and the landlord fails to appear in court, she should be found in default and you should be awarded damages for your counterclaims.

Getting Information Through Discovery

As a tenant facing eviction, you have a right to get information and documents from the landlord to help you prepare and prove your case. This is called discovery . Discovery is an important legal process. If you request discovery, a court will postpone your eviction hearing for two weeks in order to give the landlord time to answer your questions and send you documents. If you do not request discovery, you must go to court on the original trial date listed on the summons.

There are three kinds of discovery you can get:

  1. Interrogatories: A written list of up to 30 questions that a landlord must answer in writing and under oath.
  2. Request for Production of Documents: A written request for copies of documents that are in the landlord's possession.
  3. Request for Admissions: A written request asking the landlord to admit or deny certain statements.91

There is a sample form for Discovery at the end of this book (see Booklet 4). You must file your discovery papers with the court and deliver a copy to your landlord or her attorney on or by the answer date. Your papers must also include a notice to the landlord that the trial has been postponed for two weeks.92

Getting the Information

Your landlord must respond to your discovery within 10 days of receiving it.93 If your landlord does not respond within 10 days or does not completely answer questions or give you the documents you requested, you have five days to ask the court to order the landlord to give you this information. To do this, you must file what is called a Motion to Compel Discovery (find at the end of Booklet 4). If a judge grants your motion and the landlord does not comply with the judge's order, the court can impose a variety of legal punishments on your landlord, including prohibiting the landlord from opposing certain defenses or counterclaims, dismissing the case entirely,94 or postponing it until the landlord complies with your request.95

Reviewing the Information

When you receive the discovery you have requested from your landlord, read through all of the documents carefully. As you read through everything, try to:

  • Identify statements or information that back up your case. For example, if you ask the landlord whether you offered to pay all the rent you owed, she may admit that you did try to cure the non-payment.
  • Watch for contradictions in your landlord's story. For example, your landlord may deny knowing about bad conditions, but give you receipts during discovery that show that she hired people to make certain repairs.
  • Look for information that backs up your landlord's case and think about ways to counter this information. For example, if your landlord claims that you violated your lease by keeping a pet, you may be able to prove that your landlord knew about your dog when you first moved in and, in fact, gave you permission to keep your pet.

Preparing for the Hearing

Before your eviction case goes to court, you should prepare your case. The more prepared you are, the better you will be able to present your side of the story to a judge. Here are some things you can do to prepare:

  • Take pictures of any serious defects or code violations in your apartment. Mark on the back of each photo the date when the picture was taken.
  • Collect any documents that you need to prove your case and bring them to court with you. Bring the originals if you can and keep copies for yourself.
  • Get copies of any Board of Health inspection reports. Be sure that the reports state that they are signed "under the penalties of perjury" by the person who inspected the premises.96
  • Prepare a list of the questions you want to ask your landlord.97
  • If you have any witnesses, notify them of the time and place they should be in court.98
  • Prepare a brief statement that summarizes for the court how the landlord violated the law and why you should not be evicted. Use your answer form to help you.

If you have time, it may be helpful to observe some eviction cases the week before your trial date. For more tips about getting ready for court, read the section in Chapter 15: Using the Court System called Preparing for Trial.

Going to Court

Going to court is not something that most of us look forward to. For those who are not familiar with court, it can be an intimidating place. When you go into a courtroom, you will see lawyers in business suits sitting up front near the judge, separated from the defendants and plaintiffs. Even though it can be intimidating, remember that courts are there to serve the public and you have a right to have your side of the story heard. Speak up for yourself and be sure to tell the judge what is important to you about your case.

If you are representing yourself ( pro se ), you will need to pay very close attention to what is happening. Read Chapter 15: Using the Court System for some practical tips that will help you in court. Here are a few more things to keep in mind that relate to eviction cases.

Preparing Your Case

Preparing to go to court is 90% of the battle. The other 10% is what happens the day you go to court. The more prepared you are, the better off you will be. Use the What to Bring to Court Checklist, which you will find in Booklet 1, and read Preparing for Trial in Chapter 15: Using the Court System for more information about preparing for trial.

  • Answer When Your Name Is Called
    The first thing that will happen in court is that the clerk calls the names of all the cases. When she calls your name, say you are there. If you do not answer, you will be defaulted and you will lose your case.
  • If Your Landlord Does Not Appear
    If your landlord does not appear, the case should be dismissed. Ask the clerk if you can file your appearance (a piece of paper that tells the court that you appeared on the correct day). Then ask the clerk to give you a copy of the order of dismissal.
  • Patience Is the Name of the Game
    After the clerk calls the entire list of cases scheduled for the day, the trials start. One of the most discouraging things about being in court is the waiting. You may have to wait for hours before your case is called. You may wind up going to court as many as three or four times, perhaps losing pay each time you go.

Settling Your Case

Very often, while you are in court waiting for the judge, your landlord or her attorney will approach you in the hall and want to talk about settling your case. This is called negotiation. Negotiation is when parties and/or their attorneys talk through the issues with the goal of compromising and reaching an agreement that settles the matter. Be clear about telling the other side what you want, and don’t make any agreement you are not positive you can comply with. If you start to negotiate with the landlord or her attorney remember that you must be your own advocate because they will be protecting the landlord’s interests.

In some courts, while you are waiting for your case to be called, court staff may ask you if you are interested in meeting with a mediator (also called a "housing specialist"). A mediator is a person who works or volunteers for the court. A mediator will try to help you and your landlord identify and discuss issues with the goal of arriving at a settlement that is acceptable to both of you. A mediator can ask questions and provide information, but must be impartial and not take either party's side. Everything said in mediation is confidential and should not be discussed in court if there is a hearing later.99 If either you or your landlord does not want mediation, the case will go to trial with the judge (or a jury, if you requested a jury trial before the deadline).

The difference between mediation and negotiation in a housing case is that mediation is done by a person connected to the court, and negotiation happens directly between the parties without an impartial third-party. What is important in mediation or negotiation is to be clear about telling the other side what you want and being sure not to make any agreement you are not certain you can comply with.

Pros and Cons of Mediation

The advantages to using mediation or negotiation are that you can craft an agreement that is tailored to the exact needs of the parties. Issues that might be difficult for a judge can be decided by give-and-take. For example, you can simply agree with your landlord that the value of the clothing you lost when the roof leaked was equal to what it cost your landlord to make repairs after your child flushed several small wooden toys down the toilet, without calling witnesses and proving the exact cost of these items. Mediation or negotiation usually provide a swifter and cheaper resolution to problems. It can also provide an opportunity to repair the often very personal relationships between landlords and tenants by opening channels of communication and fostering greater cooperation in the future.

The disadvantages of using mediation or negotiation must also be recognized. Often, you are not on an equal footing with your landlord, so you are unable to negotiate from a position of strength. If you are fearful of retaliation or feel intimidated by your landlord or her attorney, mediation or negotiation may result in an unfavorable outcome for you. In addition, many mediators are not trained in landlord-tenant law, and, unlike a judge, a mediator is not required to know the law. While it may be acceptable to ignore the legal issues in your search for an amicable agreement, you should do so only after you thoroughly understand what these issues are. You do not want to find yourself in the position of giving up too much because you are unaware of what may be due to you based on the law.100

A successful mediation or negotiation will result in a written agreement between the parties.

If you are not able to resolve your dispute through mediation or negotiation, you will still be able to have a hearing before the judge (or jury).

Tips When Settling Your Case

In mediation or negotiation:

  • Before you sign an agreement, read it very carefully.
  • Be sure you understand its terms and can carry them out.
  • If you do not understand what something means, ask the mediator or the other side to rewrite the agreement using clearer terms that you understand.
  • Be careful not to sign any agreement that you know you will not be able to keep.
  • Do not agree to move in a short time if you have no other housing available to you.
  • If you have agreed to a payment plan for back rent, make sure you can afford it and that it is realistic because, if you do not keep to the agreement, a landlord may be able to evict you.

Settlement Agreements

If you reach a settlement, you must put it in writing and file it with the court as an Agreeement. Once you have signed the agreement, it will be very difficult to make any changes. In addition, at the request of a party, the agreement can be enforced by the court.

Many landlords insist that any settlement be an Agreeement for Judgment where you agree that the landlord has won her case, but both sides agree that you won’t have to move out right away (or that you won’t have to move out at all if you pay all of the back rent according to a schedule and pay all current rent on time).

It is important to know that an Agreement for Judgement will likely hurt your credit rating. You should try to negotiatiate with your landlord or her attorney for an Agreement (as opposed to an Agreement for Judgment) that the case will be dismissed if you do everything you have agreed to do.

Putting On Your Case

When your case is called for trial, you, your witnesses, and your landlord will be sworn in. Your landlord will put on her case first.101 She can put on her case by testifying herself or by calling you or someone else as a witness. You have the right to question (cross-examine) your landlord or any other witness she calls to testify.

After the landlord has finished her case, it is your turn to put on your case. You should tell your story to the judge and give her all the documents that back up what you are saying. The more documents you have proving what you say, the stronger your case will be. (Make sure you save copies of everything for yourself.) The section in this chapter called Important Legal Defenses and Counterclaims will give you specific information about how to prove your claims. Be prepared to be cross-examined and answer questions by the landlord, her lawyer, or the judge.

If you do not have a lawyer, the judge may push you in an effort to speed the case along, and you may find it difficult to tell your full story. Some judges only want to know how much the rent is and whether you always paid it on time. If you are well organized and you stick to the point, it will be easier to get the judge's attention and tell your story. Although you do have the right to be heard, do not expect the court to be your advocate. In fact, it may be helpful to take some friends to court for support.

The Court's Decision

After you and your landlord each tell your side of the story, the judge will make a decision. This decision is called a judgment . The judge may announce a decision immediately after the trial, or will say that the case will be "taken under advisement" and send you a written decision in the mail. If you do not get a judgment within several days of the trial, call the court clerk. Tell her the case number and the day you were in court and ask her if a judgment has been made. The official judgment will be entered, or take effect, at 10:00 a.m. on the day after the court makes its decision.102

Read the decision carefully. If you lose the case and want to challenge the decision, you have a right to appeal it within 10 days of the date the judgment was entered.103 For example, if judgement entered on May 8, you must have your appeal papers filed with the court and delivered to the landlord or her attorney by May 18th. If the tenth day falls on a weekend or holiday, you have until the end of the next court day to file your appeal. For more information see the section in this chapter called Appealing.

If you lose the case and do not appeal the court's decision, a clerk will send the landlord an execution on or about the 11th day after the judgment has entered. An execution is the court's eviction order.

If your landlord wins the case, the execution gives her permission to have a sheriff or constable physically move you out. If you win your counterclaims in the case, you may get an execution that says that you are entitled to money damages from your landlord. For information about how to collect money from your landlord, see the section called Enforcing Court Judgments in Chapter 15: Using the Court System.

Endnotes

59 . The rules for eviction cases in court are the Uniform Summary Process Rules (U.S.P.R.), which are reprinted at the end of this book.

60 . U.S.P.R. 2(c) specifies Thursdays as the day for summary process cases, but some courts also schedule summary process cases for other days of the week. Other days may also be used for eviction cases. Check with your court.

61 . U.S.P.R. 2(d). The reason should be stated in the complaint form following the words "unlawfully and against the right of said landlord/owner because." Mass. R. Civ. P. 12(b)(6). See also the commentary to U.S.P.R. 2(d).

62 . G.L. c. 239, § 1.

63 . Mass. R. Civ. P. 4(c); U.S.P.R. 2(b). See also G.L. c. 220, § 7.

64 . See G.L. c. 223, § 31; U.S.P.R. 2(b).

65 . U.S.P.R. 2(b).

66 . Mass. R. Civ. P. 12(b)(5); Inhabitants of Brewer v. Inhabitants of New Gloucester, 14 Mass. 216 (1817); Hart v. Huckins, 6 Mass. 399 (1810). In fact, it is a crime to impersonate a constable, sheriff, or other authority. G.L. c. 268, § 33. It might be worthwhile to check whether the constable's license has expired.

67 . Whether a lease or a tenancy-at-will is involved, the grounds for eviction must be supported by the prior notice to quit. See, e.g., Pine Grove Vill., Inc. v. Cardullo, 2001 Mass. App. Div. 234 (incumbent on owner to establish that tenant committed the violations that were specifically identified and alleged in the notice to quit); Charles v. Senatus, Boston Housing Court No. 11-SP-838 (Mar. 21, 2011) (Muirhead, J.) (inconsistent grounds in notice to quit and complaint); Glover v. Blendman, Boston Housing Court No. 99-SP-02315 (June 1, 1999) (Winik, J.) (where landlord originally served 14-day notice for nonpayment but summons referenced only late payment and illegal conduct and did not provide rental period notice, action could not proceed); Kahaly v. Sinke, Roxbury Dist. Court Summary Process No. 12164 (Nov. 25, 1987) (Martin, J.) (where landlord sent 14-day notice to quit for nonpayment but alleged both tenant fault and nonpayment in complaint, claims of fault barred because no rental period notice to quit sent).

68 . The complaint may include a claim for unpaid rent/use and occupancy. See G.L. c. 239, §§ 23. Other items that are not rent (such as the unpaid portion of a security deposit, late fees, or costs for removal or replacement of property) cannot be included. See Patti v. White, Boston Housing Court No. 11-SP-2116 (Dec. 27, 2011) (Pierce, C.J.) (costs of missing trash containers and removal of personal property stricken); Deep v. Tremblay, Western Housing Court No. 10-SP-4716 (Apr. 19, 2011) (Fields, J.), upheld without addressing specific issue, 81 Mass. App. Ct. 1131 (2012, Rule 1:28) (late fees); Alzamora v. Voguenel, Boston Housing Court No. 06-SP-3517 (Nov. 5, 2006) (Edwards, J.); Miguel v. Veenstra, Southeast Housing Court No. 05-SP-3364 (Dec. 9, 2005) (Edwards, J.). A court may bar a later claim for attorney’s fees even where authorized under the lease where G.L. c. 239, §§ 23 doesn’t provide for recovery, the fees were not listed in the complaint, and there was no motion to amend the complaint to include fees. See Avalon Bay Comm. Inc. v. Thomas, Boston Housing Court No. 09-SP-2755 (Feb. 15, 2012) (Muirhead, J.).

69 . Late filing is not permitted without the written assent of the defendant or the defendant's attorney. U.S.P.R. 2(e). See also District Court Bulletin, 2-89 (May 12, 1989). Note that Mass. R. Civ. P. 77(c), which requires clerks to file any papers offered, is inconsistent with U.S.P.R. 2 and therefore does not apply to summary process actions. U.S.P.R. 1.

70 . Mass. R. Civ. P. 6(a).

71 . U.S.P.R. 2(d).

72 . U.S.P.R. 3 requires that the answer date be the Monday after the entry date. Note that filing by mail is not complete until it is received. Courts also have the discretion to allow the late filing of answers, as allowed in U.S.P.R. 10(a) and otherwise. Under U.S.P.R. 3, answer forms must be made available from the court.

73 . As described in U.S.P.R. 2(c), the trial is scheduled for the second Thursday after the entry date (although courts are permitted to schedule trials for other days as well).

74 . U.S.P.R. 7(b).

75 . Mass. R. Civ. P. 40. You may also file with the court a written motion for a continuance requesting that the trial be postponed. You should include an affidavit (sworn statement) stating the reasons for the postponement. If you are unable to obtain a continuance and you are "defaulted," you should file a motion to remove the default.

76 . G.L. c. 185C, § 20. Housing courts have full equitable powers and the same powers as a superior court. Although district courts generally do not have equitable powers, they are given full equitable powers in summary process cases. G.L. c. 218, § 19; G.L. c. 185C, § 3. In housing court, you have a right to a jury trial. U.S.P.R. 8. A jury trial must be requested when the transfer form is filed.

77 . See generally G.L. c. 185C.

78 . U.S.P.R. 4. If the case has been postponed for two weeks in the district court because discovery was filed, the case can still be transferred the day before the rescheduled trial date.

79 . U.S.P.R. 4 requires that the case be scheduled "forthwith." In practice, the transfer may add two weeks or more of delay. Check with your local housing court to see whether your case will be rescheduled.

80 . U.S.P.R. 3.

81 . The answer form included at the end of this book is generally more useful than the form supplied by the court because it includes all of the most commonly used defenses and counterclaims and has complete instructions for its use.

82 . If the court fails to notice the jury demand and neither party brings it to the court’s attention until after the trial is completed or significantly underway, it may be deemed waived. See, e.g., Sicard v. Haley, Boston Housing Court No. 09-SP-1393 (May 19, 2009) (Muirhead, J.).

83 . Where ongoing rent is not being paid or there is a significant arrearage, a landlord may request that the court enter an order that rent in arrears be escrowed or paid into court and that the tenant be required to pay for current use and occupancy pending the jury trial. If such an order is entered and the tenant does not comply, the court may order that the right to jury trial is waived. See Chandler v. Johnson, 78 Mass. App. Ct. 1120 (2011) (Rule 1:28 opinion; text available at 2011 WL 103596); Wingate Mgmt. v. Taranov, Boston Housing Court No. 08-SP-4466 (Feb. 20, 2009) (Muirhead, J.); Cushing Constr. Mgmt. v. Weiner, Boston Housing Court No. 06-SP-4201 (Dec. 21, 2006) (Edwards, J.).

84 . Conditions of disrepair in the property may be considered in establishing the fair rental value. See The 1810 Realty Group, Inc. v. Batista, Boston Housing Court No. 10-SP-4394 (Feb. 25, 2011) (Pierce, C.J.).

85 . Mass. R. Civ. P. 6(a).

86 . U.S.P.R. 10(a).

87 . U.S.P.R. 10(c).

88 . U.S.P.R. 10(e).

89 . U.S.P.R. 10(b).

90 . U.S.P.R. 10(a) and (b).

91 . U.S.P.R. 7.

92 . U.S.P.R. 7(b).

93 . U.S.P.R. 7(c). Note that if discovery is being objected to, the motion for a protective order must be filed within five days of the discovery request.

94 . U.S.P.R. 7(d).

95 . U.S.P.R. 7(e).

96 . A report so signed is admissible in evidence without the need to have the inspector present, and is prima facie evidence that the conditions stated in the report exist. G.L. c. 239, § 8A. The Board of Health is required to provide this certification on every inspection report. 105 C.M.R. § 410.821(A)(8). Note that where a landlord fails to appeal an order of the Board of Health under the administrative appeal process set forth by the state Sanitary Code, the Board's decision becomes final and the landlord is barred from collaterally attacking the decision in a subsequent court action. Lezberg v. Rogers, 27 Mass. App. Ct. 1158 (1989).

97 . Try to state these questions in a way that would require your landlord to answer in short (preferably "yes" or "no") answers that are helpful to your case. For example, if you are claiming that your landlord is evicting you because you called the Board of Health, you might want to ask (among other things): "You didn't start this eviction until after I called the Board of Health, did you?" rather than "Why are you evicting me?"

98 . You may require people to appear, testify, and bring evidence to court by using a subpoena. Mass. R. Civ. P. 45. Anyone can serve a subpoena, but you must serve it according to state law. You can also have a constable serve a subpoena and seek court payment of the cost if you think you may qualify for low-income assistance by filing an Affidavit of Indigency (Booklet 9).

99 . G.L. c. 233, § 23C. Also see Supreme Judicial Court Rules, Rule 1:18 Uniform Rules on Dispute Resolution, adopted May 1, 1998, Rule 9, about confidentiality.

100 . Supreme Judicial Court Rules, Rule 1:18 Uniform Rules on Dispute Resolution, adopted May 1, 1998, Rule 6(i), provides that "[i]n dispute intervention, in cases in which one or more of the parties is not represented by counsel, a neutral [mediator, housing specialist, clerk magistrate] has a responsibility, while maintaining impartiality, to raise questions for the parties to consider as to whether they have the information needed to reach a fair and fully informed settlement of the case."

101 . If you have filed a motion to dismiss that is to be heard on the trial date, you should remind the judge of this. Since this is a "pre-trial" motion, it would be heard before the landlord begins her case. Also, since you would be the "moving party," you would speak first.

102 . U.S.P.R. 10(d).

103 . Mass. R. Civ. P. 6.

Many thanks to Zach Howe for his work on the endnotes for this chapter.


Produced by Maureen E. McDonagh and Julia E. Devanthéry
Last updated May 2014


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