Challenging a court-ordered eviction
Notas finales
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 postpone the eviction. You must, however, act quickly.
Endnotes
163 . G.L. c. 239, §5; U.S.P.R. 12.
164 . 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."
165 .
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 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.
166 . Kargman v. Dustin, 5 Mass. App. Ct. 101, 359 (1977) discussed the 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 requires 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.
167 . Kargman v. Dustin, 5 Mass. App. Ct. 101 (1977). In Warner v. DeCosta and Eaton, Essex Superior Court, 86-1994 (Flannery, J., Aug. 28, 1986), the court reduced periodic payments from the contract rent of $600 to $300 based upon hardship to the tenant, who had lost income due to an auto accident.
169 . 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.
171 . 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.
172 . 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.
173 .
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 in moving costs. The court allowed him to collect only the $4.80, saying, "[t]he 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."
174 . See Bing v. Roach, Hampden Housing Court, LE 1553-S-80 (Peck, J., 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 G.L. c. 239, §4; 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); PAB v. Cooper/Cooper v. PAB, Hampden Housing Court, 98-SP-3796/98-TR-0158 (Abrashkin, J., 1998) (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). 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 2 months prior to the eviction).
175 . G.L. c. 239, §3. Judge Abrashkin of the Hampden County Housing Court issued a memo (Feb. 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 7 days under any statute or rule, intermediate Saturdays, Sundays, and legal holidays are excluded in the computation.
177 . 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 3-month period.
178 . 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.
179 . G.L. c. 239, §4. See endnote 175.
180 . 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.
181 . Often, landlords pay from one to 3 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.
182 . 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 (1901) (dictum); State ex rel. Carroll v. Devitt, 107 Mo. 573 (1891).