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Receiving Proper Notice

 

Before a landlord can evict you, she must properly notify you that she is ending or terminating your tenancy. To do this, a landlord must give you a written notice called a notice to quit.13 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. You do not have to move out by this date. The purpose of a notice to quit is to give you warning of the landlord's desire to terminate your tenancy, which is only the first step in the eviction process. If you do not move out, the landlord can begin an eviction action against you in court.

The notice should tell you why the landlord is terminating your tenancy. Save the notice to make sure that if your landlord does bring you to court, she states the same reason for the eviction on the court notice, which is called a summons and complaint. Furthermore, the notice to quit must have your correct address on it and should name all tenants (anyone who signed the lease or all adults in a tenancy at will situation).14

A notice to quit does not determine who is allowed to have legal possession of your apartment. If your landlord decides to take you to court, only a judge can decide whether you or your landlord should have possession of your apartment. Again, you do not have to move out by the date on the notice to quit.

If you receive a paper that says execution on the top of it, you must act immediately. An execution is a court order that says the landlord can move you out. If you get an execution, you may be able to stop or postpone an eviction, but you need to act immediately. For more information, read the section at the end of this chapter on Postponing the Eviction.

Receiving a Notice to Quit

A landlord can use a variety of methods to deliver 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.15
  • A landlord may send it to you through regular first-class mail.
  • A sheriff or constable may personally deliver it to you, although this is not necessary.

A landlord must always prove to a judge that you actually received the notice in order to proceed with an eviction.16 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 you received the notice to quit.

Non-Payment of Rent

If your landlord wants to evict you for non-payment of rent, you must receive a 14-day notice to quit.17 A 14-day notice to quit does not mean you have to move in 14 days. A 14-day notice to quit means your tenancy is terminated 14 days after you get the notice.
This is the first step in an eviction.

If you have a lease, any clause in the lease saying that the landlord can end your tenancy for non-payment of rent without giving you a 14-day notice is illegal.18

Whether or not you have a lease, you can prevent an eviction if you "cure" the non-payment (pay the rent owed). If you do not have a lease, a notice to quit must tell you that you have a right to cure the non-payment. If you have a lease, a notice to quit does not need to state that you have a right to cure.19

For more information about how to cure non-payment of rent in a way that protects your tenancy, read the section in this chapter called Paying the Rent Owed.

Rent Increases

At the same time that a landlord gives a tenant at will a notice to quit terminating the tenancy, she can also offer a new tenancy at a higher rent.20 You may accept the increase by paying the higher rent or you can reject the increase and just pay the old rent.

If you continue to pay your old rent and refuse to pay the increase, your landlord must accept your old rent, although she can start an eviction case in court. The only way you can be evicted, however, is if the notice you receive is a 30-day (or rental period ) notice to quit.21 The landlord cannot send you a 14-day notice to quit for non-payment of rent because you are paying the rent.22 You just never agreed to pay the new rent. If your landlord attempts to use a 14-day notice to evict you based on your non-payment of an increase in rent, bring the rent increase letter, rent receipts or canceled rent checks, and the notice to quit to court and ask a judge to dismiss the case.

If your landlord accepts the old rent amount after the expiration date on the notice to quit and  the notice to quit does not state clearly that any future payment will be for “use and occupancy only” and not for rent, your landlord has given up the right to evict you using this notice.

If your landlord refuses to accept the rent, send your payment to her (or better still to her lawyer if the notice to quit came from a lawyer) with a letter explaining that you are paying the old rent and refusing the offer to enter into a new tenancy at the higher rent. You should send it to your landlord by certified mail and keep a copy for yourself. If your landlord returns the money to you, put it aside in a safe place so that if you are ordered to pay it sometime in the future, it will be available to you.

Tenants with Leases

If you have a lease, it will specify the reasons that your landlord can terminate your tenancy and the steps she must take to do this (which must happen before the date the lease is scheduled to end).

If your landlord tries to evict you before your lease has ended, most leases require landlords to terminate your tenancy by first giving you a written notice to quit before proceeding to court. Although many leases require seven days' notice, the amount of time is not set by law and may vary from lease to lease. Check your lease to see how many days' notice is required before a landlord can take the next step in the eviction process, which is to go to court.

If your lease has an option to renew and you fail to renew it, your landlord does not need to send you a notice to quit if she wants you out at the end of your lease. In this case, the day after your lease ends, your landlord can immediately file papers in court and begin an eviction case without giving you a notice to quit.

Check your lease to figure out whether it automatically renews itself or whether you must renew it to prevent it from automatically ending. For more about how to figure this out, see the section in Chapter 4: What Kind of Tenancy Do You Have called How Long Is Your Lease Valid.

If your landlord accepts your rent after your lease ends, you automatically become a tenant at will and you are entitled to get a 30-day (or rental period) notice to quit before a landlord files an eviction case in court.23

Tenants without Leases

If you do not have a lease, you need to first figure out whether you are a tenant at will or a tenant at sufferance (for more information see Chapter 4: What Kind of Tenancy Do You Have).

If you are a tenant at will, your landlord must send you a notice to quit. There are basically two types of notices your landlord can send you if you are a tenant at will:

  • 14-day notice for non-payment of rent; or
  • 30-day (or rental period) notice for any other reason or for no reason.

Some landlords try to cover all bases by sending both a 14-day and a 30-day notice to quit. The reason is that if you stop the non-payment eviction by paying the rent you owe, they want to still go ahead with the eviction based on a 30-day notice. This violates the legal requirement that the notice state an absolute termination date.24 If you get both a 14-day and a 30-day notice, you should pay the rent within the “cure” period, if you can, and file a motion to dismiss because the date that the tenancy is supposed to terminate is not clear.25 For more about how to cure non-payment of rent, read the section in this chapter called Paying the Rent Owed.

If your lease has expired or you are otherwise a tenant at sufferance, your landlord can begin an eviction case in court without giving you a notice to quit.

14-Day Notice

A landlord can send you a 14-day notice to quit for non-payment of rent on any day of the month. A notice to quit for non-payment of rent cannot demand late fees or constable fees, only unpaid rent.26 If your landlord sends you a 14-day notice to quit, it must tell you that you have a right to "cure" the non-payment.27 This means that if you pay the amount of rent you owe within 10 days of receiving the notice, you can prevent an eviction, as long as this is your first 14-day notice within the past 12 months.28 If the notice to quit does not tell you about this right, you actually have until the answer date to pay all rent.29 If you do not pay the amount of rent you owe within this 10-day cure period, you still do not have to move out in 14 days. For more information about "curing" a non-payment of rent, see the section in this chapter called Paying the Rent Owed.

30-Day (or Rental Period) Notice

If your landlord tries to evict you for any reason other than non-payment of rent, or for no reason at all, she must give you a 30-day (or rental period) notice to quit. You must receive the notice at least 30 days or one full rental period in advance, whichever is longer.30 (A rental period is the time between the dates when rent payments are due.)

The date on the 30-day notice must terminate your tenancy on a day on which your rent is due.31 If you pay weekly, the notice must terminate on the 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 day of the month.32

Example

If your rent is due monthly on the first of the month, and your landlord states in the notice that she wants to terminate your tenancy by September 1, you must receive the notice to quit in writing on or before August 1. If you do not receive the notice until August 2, it is invalid and you cannot be evicted based on it.

No Specific Time Stated on the Notice to Quit

You may receive a notice that says that your tenancy terminates "at the end of the rental period which begins after receipt of the notice."33 For example, if you receive this notice before August 1, it will terminate your tenancy on September 1. If you receive it on August 1 or any time between August 1 and August 31, it will terminate your tenancy on October 1.34

Note

Any agreement between you and your landlord to terminate your tenancy without giving you a notice to quit is illegal and will not be enforced by the court.35

When Can a Landlord Go to Court

A landlord cannot begin an eviction case in court until after you receive a proper notice to quit and the time period on the notice has completely passed. If a landlord files an eviction case before the time period on your notice has passed, a judge must dismiss the case upon your request.

Evictions for Drug-Related or Other Unlawful Activity

The problem of illegal drug dealing has become a growing concern of both tenants and landlords. While tenants fight for the right to live in a safe environment, free from the violence that often accompanies illegal drug dealing, and while landlords may be obligated to evict tenants whose illegal activity may endanger other tenants, the mere mention of the word "drugs" by a landlord or her lawyer immediately brands tenants. As a result, tenants and their families who may not be guilty of any crime are being illegally evicted without notice or a chance to defend themselves.

In Massachusetts, a law enacted over 150 years ago, commonly referred to as a nuisance law, gave landlords the right to terminate a tenancy with no notice to the tenant if an apartment was used for prostitution, illegal gambling, or the illegal keeping or sale of alcoholic beverages.36 This meant that a landlord could skip the notice to quit step in the eviction process and could proceed straight to court to get permission to take possession of an apartment. In 1985, the legislature amended the law to include the possession, sale, or manufacturing of illegal drugs.37

Tenant advocates take the position that under this nuisance law, a landlord must still file an eviction case, known as a summary process case, and that the only difference between an eviction under the nuisance law and a regular eviction case is that the landlord does not have to terminate a tenancy or give a tenant a notice to quit.38 This nuisance law, however, can cause great confusion on the part of landlords.39 As a tenant, you may be faced with any one of the following situations:

You Are Illegally Locked Out

Some landlords think this nuisance law means they do not need to go to court to evict a tenant. This is absolutely wrong. If a landlord tries to evict you by changing the locks or moving you out without an order from the court, this is an illegal lockout and you can use all the strategies described in this chapter in the section called Lockouts and Utility Shut-offs.

You Receive a Court Summons and Complaint

If the first notice you get that a landlord wants to evict you is a court summons and complaint for a summary process case, you may have only a week or so to respond to the court. If a landlord sends you a summons and a complaint, there are a number of steps you can take to protect your rights:

  1. Read the section in this chapter called Fighting an Eviction in Court and try to contact an attorney as soon as possible. For information about where to find a lawyer use FindLegalAid.
  2. If the complaint says that the landlord wants to evict you because of illegal drug activity or other illegal activity, and if a criminal case has been filed against you or someone in your household, you should immediately go to court and ask a judge to postpone the eviction case until after the criminal case has been heard.
  3. It is also very important that you consult with the lawyer handling the criminal case to avoid problems concerning self-incrimination. Anything you say during your eviction case may be used against you in a criminal case.
  4. If you want to stay in your apartment, get more time to move, or challenge the landlord's accusations, as in any eviction case, you have a right to get information from the landlord by filing what is called discovery . See the section in this chapter called Getting Information Through Discovery for more about the discovery process.40

    If you file discovery, you should find out exactly what type of proof your landlord has about the allegations involving illegal activity in your apartment.

You Receive a Notice of a Temporary Restraining Order or Injunction

If you get a civil summons and complaint (not a summary process summons and complaint) telling you that your landlord is seeking an emergency order to have you removed from your apartment, you must act immediately. This order is called an injunction or temporary restraining order (TRO) . What this means is that your landlord is using the nuisance law to avoid going through the regular eviction process.41 It also means that your landlord is trying to evict you without having to prove in a full trial that someone in your household was involved in an illegal activity and without allowing you the opportunity to dispute her accusations in a full trial. If a landlord uses the injunction process to try to evict you, there are a number of steps that you can take to protect your rights:

  1. Immediately contact a lawyer for advice on how to proceed. For information about where to find a lawyer use FindLegalAid.
  2. If you have been charged or think you may be charged with violating a criminal law and may have to go to court on those criminal charges, anything you say in the eviction case may be used against you in the criminal case. You should talk with a criminal lawyer about how to handle this situation before you go to court.
  3. If you want to stay in your apartment, whether or not you get a lawyer, you should go to court on the date listed on the summons and complaint. It is very important to try and stop this TRO from going forward. When your case is called, tell the judge that:
    • You are entitled to a proper eviction hearing (including a jury trial if you wish) and to get discovery;
    • The landlord will not be unduly harmed by proceeding through the normal eviction process (summary process); and
    • You will be harmed because you will not be able to defend yourself or find out what the landlord is claiming.
  4. If there are neighbors who will verify that you do not pose a threat to the neighborhood, try to get them to testify on your behalf at the injunction hearing.

    Remember

    Be very careful about saying anything that may later be used against you.
  5. You should ask the judge to exclude any evidence, such as an arrest warrant, a police report, a criminal complaint, or affidavits. These documents, unless verified by the person who wrote them, are considered hearsay . Hearsay is not good evidence because there is no one in court to verify that it is true. In addition, you should ask the judge to exclude any evidence that was obtained without a valid search warrant.42
  6. If the court agrees with your landlord that there is reason to order an injunction or TRO to have you removed from your apartment, you can argue that the injunction should be limited to preventing the particular problem the landlord wants stopped. For example, the court can order that all illegal activity stop; or, if only one person in the household may be or has proved to be involved in illegal drug activity, you can ask the court to prohibit only that person from being on the property.43 Although this may not be a good solution, if you have no other place to move to, it may be your only option.

You Receive an Execution

If you receive a court document called an execution, it may mean that your landlord has used the nuisance law to get the court's permission to evict you without giving you an opportunity to defend yourself. See Form 21 for a Sample Execution.44

If a sheriff or constable serves you with an execution, you must take immediate action to stop or delay the eviction. For more information see the section at the end of this chapter called Delaying the Eviction.

Endnotes

13 . G.L. c. 239, § 1 provides that the landlord "may recover possession" through court procedures if, among other things, her tenant "holds possession without right after the determination of a lease by its own limitation or by notice to quit or otherwise." The landlord does not have to give you a notice to quit if your lease has expired and she has not accepted any rent from you since the expiration of the lease, and she may not have to give you a notice to quit if she is trying to evict you under G.L. c. 139, § 19, for using your home for illegal activities.

14 . The court can dismiss the eviction if the notice to quit gives the wrong address or does not clearly identify the portion of the property involved, particularly if there is no proof that it was served at the correct address. See Jones v. Leach, Boston Housing Court No. 10-SP-4586 (Dec. 29, 2010) (Muirhead, J.); Dixon v. Myers & Young, Boston Housing Court No. 10-SP-1656 (June 4, 2010) (Muirhead, J.); Coriano v. Espino, Boston Housing Court No. 07-SP-2157 (June 28, 2007) (Muirhead, J.).

And: If the landlord’s notice to quit has not terminated the tenancy of every individual who may have a tenancy interest, the action may be dismissed. See, e.g., Hobbs v. Dixon, Boston Housing Court No. 07-SP-2071 (June 20, 2007) (Muirhead, J.); Santana v. Brooks, Boston Housing Court No. 05-SP-00541 (Apr. 14, 2005) (Pierce, J.); Smith v. MacDonald, Boston Housing Court No. 02-SP-05448 (Mar. 11, 2003) (Edwards, J.); Loconto v. Lizotte, Worcester Housing Court No. 89-SP-01271 (Nov. 1, 1989) (Martin, J.). Similarly, every individual with a tenancy interest should be named in the proceeding. Otherwise, there may be a motion to dismiss for failure to join a necessary party. See sample Motion to Dismiss, Form 20.

15 . Ashkenazy v. O'Neill, 267 Mass. 143, 145 (1929) held that a notice left with the tenant's spouse "would furnish presumptive evidence that the defendant received the notice." It may be possible to rebut the presumption that the notice was actually received.

16 . If you claim you did not get the notice, your landlord cannot rely merely on the fact that a constable left it at your last and usual place of abode. Ryan v. Sylvester, 358 Mass. 18 (1970). See also Bakis v. Mrove , Boston Housing Court, 07-SP-1679 (Muirhead, J., May 23, 2007); Beacon v. Doe , Boston Housing Court, 03-2551 (Winik, J., July 15, 2003).

17 . G.L. c. 186, §§ 11 and 12.

18 . G.L. c. 186, §15A.

19 . If you have a lease, although a notice to quit does not have to inform you of your right to cure, a judge may dismiss an eviction case if a landlord sends a notice that misstates your right to cure. Springfield II Investors v. Anita Marchena, Hampden Housing Court, 89-SP-1342-S (Abrashkin, J., Jan. 4, 1999). In Springfield, the court dismissed a summary process action brought against a tenant under a lease for non-payment of rent where the landlord served the tenant with a notice to quit that contained right to cure language appropriate to a tenancy at will (i.e., one cure as of right in a 12-month period and tender of cure required within 10 days of receipt of the notice). The tenant did not claim that she was misled or prejudiced by the failure to provide the cure rights under G.L. c. 186, § 11 for lease tenancies. Citing Oakes v. Munroe, 62 Mass. 282 (1851) and Maguire v. Haddad, 325 Mass. 590 (1950), the court noted that "the standard applied . . . is not whether the tenant was misled to his prejudice but whether the notice conforms with the statute and is sufficiently clear, accurate, and certain so that it cannot reasonably be misunderstood." Based on this standard, the court held that the notice was facially defective and could not form the basis for a summary process action.
See also Everett Housing Auth. v. Passarello, Malden Dist. Ct., 1302-91 (Sullivan, J., 1991) (notice to quit on a tenant containing 10-day cure language applicable to tenancy at will held facially defective and therefore invalid on summary judgment).

20 . G.L. c. 186, § 12.

21 . A claim for rent at the higher amount may also be an unfair or deceptive practice in violation of the Consumer Protection Act, G.L. c. 93A. See Small d/b/a The Apartment Co. v. Gonzales, et al., Hampden Housing Court, SP-6412-S-85 (Peck, Jr., J., July 29, 1985).

22 . Williams v. Seder, 306 Mass. 134, 137 (1940).

23 . Your landlord is allowed to file an eviction in court up to 30 days before the end of your lease if your lease covers a period of at least six months. G.L. c. 239, § 1A. (This provision was passed at the insistence of landlords with seasonal rentals who feared that the other provisions of the law that outlawed self-help evictions would make it harder for them to get rid of low-income tenants before the beginning of the high-rent season. But there is nothing explicit in G.L. c. 239, §1A that limits its use to those situations.) A landlord must also show a court that there is a likelihood you will stay in the apartment beyond the end of your lease. If a court gives the landlord permission to evict you, the landlord cannot evict you until the day after your lease ends. Before that date, you have a right to ask a judge to delay the eviction. G.L. c. 239, §1A. See the section in this chapter called Delaying the Eviction.

24 . English v. Moore, Boston Housing Court, SP-43972 (Daher, C.J., July 10, 1987); Thomas v. Pelletier, Hampden Housing Court, SP2006-S87 (Abrashkin, J., May 23, 1987), citing MaGuire v. Haddad, 325 Mass. 590 (1950); English v. Moore, Boston Housing Court, SP-43972 (Daher, C.J., July 10, 1987). Similarly, a landlord should not be permitted to send both a rental period notice alleging tenant fault and a 14-day notice for non-payment of rent in the hope that she can preclude the tenant from raising conditions defenses under G.L. c. 239, § 8A. See Nichiniello v. Akerly, Somerville Dist. Ct., CV-910 (Coven, J., Oct. 30, 1990) (by sending 14-day notice, landlord must forgo right to proceed on 30-day notice and may proceed solely on landlord's non-payment claims, thereby allowing tenant to raise G.L. c. 239, § 8A defenses).

25 . See Sukhorukova v. Farmer, Western Division Housing Court No. 10-SP-2501 (July 19, 2010) (Fields, J.).

26 . A notice to quit for nonpayment of rent that includes both rent due and late payment charges may be defective, since the late payment charges are not rent and cannot be pursued in a summary process action. See G.L. c. 239, § 2 (owner’s claims limited to those for possession and rent or use and occupancy); Deep v. Tatro, Western Housing Court No. 08-SP-2658 (Nov. 17, 2008) (Fein, J.) Moreover, late payment charges can be recovered only if there is a written agreement providing for them and the rent is more than 30 days overdue. See G.L. c. 186, § 15B(1)(c); Harris v. Wilson, Boston Housing Ct. 09-SP-0177 (Muirhead, J., Jan. 28, 2009). The unlawful assessment of late payment charges may lead to liability under G.L. c. 93A. See Halabi v. Suriel, Boston Housing Court No. 09-SP-3831 (Oct. 19, 2009) (Muirhead, J.).

27 . G.L. c. 186, § 12.

28 . G.L. c. 186, § 12.

29 . If the owner fails to state the statutory cure rights within the 14 day notice to quit received by a tenant-at-will, the statute provides that the tenant’s opportunity to cure is extended to the answer date (without any requirement for tendering interest or costs of suit). See, e.g., Olivier v. McFarlane, Boston Housing Court No. 09-SP-0032 (Jan. 20, 2009) (Muirhead, J.) (lack of language in notice about cure rights affects not notice’s validity, but time for tenant to cure; since tenant did cure prior to entry of action, eviction must be dismissed).

30 . G.L. c. 186, § 12.

31 . U-Dryvit Auto Rental Co. v. Shaw, 319 Mass. 684, 685 (1946); Connors v. Wick, 317 Mass. 628, 630-631 (1945); Prescott v. Elm, 61 Mass. 346, 347 (1851). Although, typically, rent is due on the first of each month, you and your landlord may have agreed on a different "rent day." If there was no agreement on a specific rent day, the rent day is considered to be the last day of the month. Connors v. Wick, 317 Mass. 628, 631 (1945). If a landlord files an eviction action in court, it will be her burden to prove that the notice terminated your tenancy on a rent day. Connors v. Wick, 317 Mass. 628, 631 (1945).

32 . Connors v. Wick, 317 Mass. 628, 631 (1945).

33 . U-Dryvit Auto Rental Co. v. Shaw, 319 Mass. 684, 685 (1946).

34 . February is a special case because it has only 28 days. You must receive a notice to quit on or before Jan. 30 to terminate your tenancy on March 1st. There is some support for counting the day of service. See Callahan v. John Hancock Mutual Life Ins. Co., 331 Mass. 552, 554 (1954); Lawrence v. Commissioners, 318 Mass. 520, 525 (1945) ("a thing done at any time in a day is taken the same as though it had been done in the first minute of the day"); "Fundamentals of Residential Real Estate," MCLE, vol. 85-47 (1985), pp. 463-464. See also Hodgkins v. Price, 137 Mass. 13, 17 (1884) (day of receipt counted as first day of 14-day period for non-payment notice).

35 . G.L. c. 186, § 15A.

36G.L. c. 139, § 19.

371985 Mass. Acts 421, § 3. The law covers certain behaviors by certain people. The behavior of guests is not always covered by the law, and the court should dismiss cases brought under G.L. c. 139, § 19 if they address guest, rather than household member behavior.

38 . In Benett v. Dean , Boston Housing Court, 27618 (Daher, C.J., Sept. 20, 1989), Chief Judge Daher held that the statute would be unconstitutional if it authorized evictions without any process of law, stating: "This Court has to interpret G.L. c. 139, § 19 in light of the present day constitutional requirement of due process. It was the Legislature's determination that anyone violating G.L. c. 139, § 19, be deemed a trespasser. But an occupant has a right to be heard before being deemed a trespasser. 'The fundamental requisite of due process is the opportunity to be heard.'" The general prohibition against self-help eviction found in G.L. c. 184, § 18 provides further evidence that the landlord's right of entry under G.L. c. 139, § 19 does not include the right to forcibly eject the tenant without court process. G.L. c. 184, § 18 itself distinguishes "entry" from ejection. It prohibits a landlord's entry "except in cases where his entry is allowed by law[,]" but goes on to prohibit any "attempt to recover possession of land or tenements in any manner other than through an action brought pursuant to chapter two hundred and thirty-nine [summary process] or such other proceedings authorized by law." Although it could be argued that G.L. c. 139, § 19 provides a case in which "entry" is allowed by law, the actual ejectment of a tenant cannot take place without court process.

39 . The statute, G.L. c. 139, § 19, provides, in relevant part, that "such use [of the apartment for illegal activity] shall, at the election of the lessor or owner, annul and make void the lease or other title under which such tenant or occupant holds possession and, without any act of the lessor or owner shall cause the right of possession to revert and vest in him, and the lessor or owner may seek an order requiring the tenant to vacate the premises or may avail himself of the remedy provided in chapter two hundred and thirty-nine."

Evidence may also be challenged based on an interruption of the chain of custody.

40 . In New Bedford Housing Authority v. Olan, 435 Mass. 364 (2001), the Supreme Judicial Court held that a public housing tenant being evicted under G.L. c. 139, § 19 has a right to a jury trial and to discovery.

41. Cases in which injunctions have been issued include: Morris v. Davis, Boston Housing Court, 05-00192 (Winik, J., Apr. 6, 2005); Boston Housing Authority v. Coleman, Boston Housing Court, 99-CV-01130 (Daher, C.J., Nov. 22, 1999); Wingate Management Co., Inc. v. Pikovsky, Boston Housing Court, 29705 (Daher, C.J., Dec. 28, 1990) (issuing injunction against husband, but not his wife); Bennett v. Dean, Boston Housing Court, 27618 (Daher, C.J., Sept. 20, 1989); Boston Housing Authority v. McDonald, Boston Housing Court, 24666 (Daher, C.J., Aug. 9, 1989); Reserve Realty Corp. v. Cooper, Boston Housing Court, 27243 (Daher, C.J., Aug. 3, 1989) (enjoining tenant's son from entering or residing at his father's residence).
While it may be difficult to challenge the use of injunctions against specific individuals and for specific acts where the summary process laws are not sufficient to eliminate a danger to the community, many questions can be raised about the appropriate remedy in any specific case. Although in McDonald drugs were found in the tenant's apartment, it was not clear from the record that the tenant was charged with a criminal offense. Her apartment was apparently being used by others. Advocates need to ask, if the tenant was not, in fact, dealing drugs, why was it necessary to obtain an emergency injunction against her and why wouldn't the summary process procedure have provided the landlord with an adequate remedy? Injunctions can be granted only if certain requirements are met. Most importantly, the landlord must be able to show that there is no other adequate legal remedy available to her. See, e.g., Conlon v. Teamsters, 409 F. Supp. 1165, 1167 (D. Mass. 1976). Since the landlord can always use the ordinary eviction process, she should not be able to get an injunction unless she can show that the ordinary eviction process is inadequate. In addition, the landlord must meet the other requirements for getting an injunction. In order to get an injunction, the landlord must show:

  • Threat to the landlord of irreparable harm if the injunction is denied;
  • Landlord's likelihood of success on the merits of the case;
  • That risk of harm to the landlord outweighs threatened harm to the defendant; and
  • That the public interest will be better served by issuing the injunction than by denying it.

See Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 615-17 (1980).

42 . The Hampden County Housing Court has held that evidence seized without a warrant may be suppressed in a civil action. Hollywood Park Assoc. v. Elsa Morales, Hampden Housing Court, 89-SP-1176-S (Abrashkin, J., Mar. 21, 1990). See also Boston Housing Authority v. Andrews, Boston Housing Court, 05-SP-01781 (Pierce, C.J., Feb. 28, 2006). However, it may be necessary to bring a pretrial motion in limine to suppress such evidence. Hollywood Park Assoc. v. Anne Marie Diaz, Hampden Housing Court, 90-SP-0078-S (Abrashkin, J., Mar. 1, 1990). Evidence obtained pursuant to a no-knock warrant may also be suppressed where a court found no basis for the no-knock warrant. Caribe Management Corp v. Serrano, Hampden Housing Court, 90-SP-2872 (Abrashkin, J., Jan. 4, 1991). See also Boston Housing Authority v. Andrews, Boston Housing Court, 05-SP-01781 (Pierce, C.J., Mar. 2006).

43 . Reserve Realty Corp. v. Cooper, Boston Housing Court, 27243 (Daher, C.J., Aug. 3, 1989). In Reserve Realty, an owner sought to have a tenant family declared trespassers under G.L. c. 139, § 19, alleging that police seized 58 grams of cocaine and $4,400 in cash from the son. The tenant-father argued that he had no knowledge of his son's activities and that the family should not be penalized. The court allowed the family to stay but entered an injunction barring the son from the premises. See also Wingate Management Co., Inc. v. Pikovsky, Boston Housing Court, 29705 (Daher, C.J., Dec. 28, 1990) (court issued permanent injunction against husband based on his drug activity but denied injunction against wife, finding that although she knew about her husband's drug activity, she was not responsible for his illegal activity and was in fear of him).

44 . See New Bedford Housing Authority v. Olan, 435 Mass. 364 (2001), in which the Supreme Judicial Court noted in footnote 8 that there is an "apparent conflict in the provision of [G.L. c. 139,] § 19 stating that an execution for possession may issue with a preliminary injunction. An execution issues after a final judgment, whereas a preliminary injunction is an interlocutory order".

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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