If you live in a residential housing program licensed, funded, or operated by the Massachusetts Department of Mental Health (DMH), there are certain procedures that your program must follow to legally evict you from your apartment.46 These procedures provide you with some legal protections. In addition, the program must post in each residence a clearly visible notice that explains, in plain and simple language, your rights under the law.47
You are entitled to all of the eviction notice protections for rooming house occupants described in this chapter based on your length of occupancy and regular eviction protections for tenants described in Chapter 13: Evictions, if your residency in the DMH program meets the following three requirements:48
- You have paid the program for residential services or care (this can include fees, charges for rent, or payments for other services provided by the program);49
- The program provides you with care and services in a housing unit that has its own kitchen and bathroom;50 and
- You occupy the unit either by yourself or with your family.51
If these three conditions are not met—for example, you share kitchen or bathroom facilities with other residents, or you do not pay for the program—then the program has a choice: it must either evict you through the regular court eviction process (known as summary process see Chapter 13: Evictions) or through an out-of-court hearing process with DMH that follows certain regulations.52 In either case, you cannot just simply be told to leave.
If you are not sure if your program is licensed, funded, or operated by DMH, you should either ask a staff person at the program or contact DMH's central office at 617-626-8000. DMH is required to keep records of any programs that it licenses, funds, or operates.
Eviction Protections for DMH Hearing
To evict you using the out-of-court hearing process, the residential program must provide you and DMH with a written notice stating the reasons (grounds) for the eviction.
This notice must also include all the relevant facts relating to the eviction and the sources of those facts.53 For example, the notice might describe certain incidents that happened with you on certain days and list the persons who witnessed those incidents. The notice you receive from the provider must also refer to your rights under the law, and tell you that:
- You have a right to a hearing;
- You have a right to be represented by a lawyer or any person of your choice at the hearing; and
- At your request, you or your lawyer or representative will be given reasonable access to review and copy your file, including any document which the program intends to use against you, prior to the hearing.54
You do not have to request a hearing at DMH in order to get one—under the law, this occurs automatically. Once DMH has received the written notice from the program, it must immediately assign an impartial hearing officer to conduct a hearing. The purpose of the hearing is to determine if sufficient (grounds) exist for your eviction.55
The hearing officer must hold the hearing between 4 and 14 business days after DMH receives the notice, unless you and the provider jointly request another date. This request must be in writing. The hearing officer also selects the place for the hearing, and it must be convenient to both you and the program.56
You and the program each have a right to have a lawyer or other person represent you at the hearing. You must also be given the opportunity to present evidence, question the program's evidence, have witnesses, and question the program's witnesses.57
Under the law, the program has the burden of proving that the reason for the eviction is valid and justified.58 The program must also prove that you substantially violated an essential term of any written occupancy agreement. That means that you cannot be evicted for a minor reason.
In many cases, as a person with a disability, you may be entitled to a reasonable accommodation that might allow you to resolve past problems and continue as a resident with the program. The reasonable accommodation should ordinarily be considered as a solution, unless the program can show that, even if you are provided with the accommodation, it is likely that your continued occupancy would impair the emotional or physical well-being of other occupants, program staff, or neighbors.59 For more information about reasonable accommodation, see the Discrimination section in Chapter 13: Evictions.
It is very important at the hearing to speak about all of the reasons that you should not be evicted even if you do not think they are important. This is because the hearing record needs to show that you raised these concerns. Otherwise, you will usually not be permitted to raise any new issues if you need to appeal your case. 60
In court, if you have trouble understanding the proceedings or expressing yourself due to disability, you can ask the judge to have a guardian ad litem (usually an attorney) be appointed for you in the case. 62 The decision must be in writing and must state the hearing officer's findings of fact and conclusions of law, and must notify you of your appeal rights.63 Both sides have the right to appeal the hearing officer's decision to the superior court.64 If the hearing officer determines you should be evicted, DMH must take steps to assure that you will not become homeless and help you secure alternative housing in the least restrictive setting that is appropriate and available.65 For example, if DMH has another residential program which provides services not available in the current program that would help you become stabilized, DMH should consider placing you there.
Within 10 days after the hearing, the hearing officer must make a decision and give you and the provider a copy of the decision.
If DMH does not immediately have alternative housing that is appropriate for your needs and has an opening right away, then at a minimum DMH must help refer you to a homeless shelter, to one of its shelter programs (called DMH transitional housing programs), or to help you make other temporary housing arrangements.
46 . G.L. c. 186, §17A(d)(2), as amended by St. 2002, c. 237, §1, effective as of July 1, 2002. This law, called the Community Residency Tenancy Protections Act, does not: (1) apply to any facility for the care and treatment of people who are mentally ill or mentally retarded; (2) restrict the temporary removal of an occupant under the involuntary commitment provisions of G.L. c 123, §12; (3) apply to a continuing care facility as defined by G.L. c. 40D, §1(u) or a facility licensed under G.L. c. 111, §71 (such as an infirmary, a convalescent or nursing home, a rest home, a charitable home for the aged, or an intermediate care facility for the mentally retarded); (4) diminish the rights of a lawful occupant of an assisted living facility; or (5) diminish or alter any other occupant rights or privileges not specifically set forth in this section.
47 . G.L. c. 186, §17A(c)(1).
48 . G.L. c. 186, §17A(a). The statute states that these requirements are as defined in DMH's regulations, but as of the writing of these materials, no regulations have been adopted. The specific statutory requirements that apply are G.L. c. 184, §18 (no eviction except through judicial process), G.L. c. 186, §17 (notice requirements for rooming house tenants), and G.L. c. §239 (use of
49 . G.L. c. 186, §17A(a)(1).
50 . G.L. c. 186, §17A(a)(2).
51 . G.L. c. 186, §17A(a)(3).
52 . G.L. c. 186, §17A(b). This is an adjudicatory hearing under G.L. c. 30A, §11, and is governed by the informal hearing regulations found at 801 C.M.R. §1.02.
53 . G.L. c. 186, §17A(c)(2).
54 . G.L. c. 186, §17A(c)(2).
55 . G.L. c. 186, §17A(c)(3).
56 . G.L. c. 186, §17A(c)(3).
57 . G.L. c. 186, §17A(c)(3).
58 . G.L. c. 186, §17A(c)(4). This is by a preponderance of the evidence. All such evidence must be limited to the reasons stated in the notice.
59 . G.L. c. 186, §17A(c)(4).
60 . G.L. c. 30A, §14 (scope of review of an adjudicatory decision by a state agency).
61 . G.L. c. 201 §34; see also Mass. R. Prof'l Conduct R. 1.14(b).
62 . G.L. c. 186, §17A(c)(5).
63 . G.L. c. 186, §17A(c)(5).
64 . G.L. c. 186, §17A(c)(5); G.L. c. 30A, §14.
65 . G.L. c. 186, §17A(c)(7).
Produced by Stefanie Balandis Created July 2008