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Challenging a court-ordered eviction

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Legal Tactics

By

Maureen E. McDonagh and Julia E. Devanthéry

Reviewed

May 2017

Text

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.

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default

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 2 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 (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 you missed.

If you do not file your Motion to Remove Default within 10 days of the default judgment, you should fill out both the Motion to Remove Default Judgment form (Booklet 6) form and the form in Stay (Booklet 8), the Motion to Stay Execution, which will ask the judge to stop the eviction until you are heard on these motions.

appealing

Appealing

If you lose your eviction case and you think the judge or the jury made a legal mistake in deciding your case, 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 quickly within 10 days of the court's decision in your eviction case.¹⁶³

a. 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.

b. 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 the court to cover back rent and other costs. This is called an appeal bond .¹⁶⁴ If you cannot afford an appeal bond, you should fill out the Affidavit of Indigency (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 the Federal Poverty Guidelines Chart). You must also be able to show that your appeal is not frivolous.¹⁶⁵

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 to waive the bond, or if you believe the monthly payments ordered are too high, you have 6 days to appeal this decision.

If the apartment is in bad condition, you should ask that the amount of the appeal bond or rent payments be reduced to reflect the "decreased value" of the apartment and bring witnesses or evidence to the hearing to help you convince the judge of the reduced value of the apartment

Failure to make the ordered payments on time will end your appeal rights. The first payment is due 6 days after the court's decision.¹⁶⁶ 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.¹⁶⁷

If the higher court orders you to pay the bond, you have 5 days to pay it or else your appeal is dismissed.¹⁶⁸

postponing

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 (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 and give you permission to stay in your apartment for up to 6 months.¹⁶⁹ If you or someone living with you is disabled or 60 years of age or older, and you are being evicted for a reason that is not your fault (no fault eviction) the court can grant you a stay for up to 12 months.¹⁷⁰ 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.

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.¹⁷¹

Also, Massachusetts has an eviction storage law that provides important rights to tenants who are facing an eviction or who have been evicted. It is important to understand this law so that you can make sure your property is protected. For more information read the booklet: Eviction Storage Law: Protecting the Belongings of Tenants Facing Evictions.

court-orders-you-out

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. See sample Execution (Form 21). This form may vary from court to court.

A landlord can get an execution on the 11th day after the court enters a judgment .¹⁷² When the landlord gets the execution, she must then give it to a constable or sheriff and pay that person to move you out.¹⁷³ Only a constable or sheriff can deliver the execution to you and move you out¹⁷⁴ . A constable must give you at least 48 hours written notice that you are going to be evicted. This paper is sometimes referred to as a “48 hour notice”. Usually, a constable does this by tacking a notice to your door or giving it to you.¹⁷⁵ 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 weekend¹⁷⁶

tro

You can request an order to try to stop the move-out

Even if you have lost your case and received a 48 hour notice from the constable or sheriff there is one last legal avenue you can use to try to get more time. A Temporary Restraining Order (TRO) is a civil action you can file in court requesting emergency postponement of the constable’s move out. When granted, a typical TRO is for only 10 days. It may be extended at the court’s option (but this is unusual).

To request a TRO:

Go to the court in which your eviction case was heard and bring the constable’s 48 hour notice with you.
Find the housing court clerk or the civil clerk’s office. Request an immediate hearing to stop the constable’s move-out.
Fill out any forms the clerk says are necessary.
If you cannot afford the fee for the TRO, ask the clerk for an Affidavit of Indigency form and fill it out completely.
The court will usually call your landlord to come into court that same day for an immediate hearing.
During the hearing tell the judge why you need more time to move out and if there is someone who is elderly or disabled in your household. If you have a place to go, but need more time to voluntarily move out, the court is more likely to grant you some additional time. Bring any evidence about your new living arrangement to show that you will be able to move if given more time. If you do not have a place to move to, explain to the judge why becoming homeless will be dangerous for you or your family.

Keep in mind, since you have lost your case, the court is not required by law to give you any more time. A TRO is completely within the judge’s discretion.

more-time

Getting more time from your landlord

You can ask the landlord for more time, although he 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 3 months of the date the judgment was entered by a judge,¹⁷⁷ and the landlord must use it within 3 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.¹⁷⁸

If the constable physically evicts you from the premises, she must see to it that your possessions are placed in storage.¹⁷⁹ Be sure to remove your vital documents, medications, and valuables before the constable physically evicts you. It’s a good idea to remove anything you can before the constable places your possessions in storage since you may have difficulty accessing your possessions later. 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 6 months without payment.¹⁸⁰ You can postpone the sale for 3 months by paying half of the accrued fees plus reasonable costs.¹⁸¹ If your goods are damaged by the mover or storage company, they are probably responsible for the damage, and you may have legal claim against them.¹⁸² For more information about storage, see: Eviction Storage Law: Protecting the Belongings of Tenants Facing Eviction.

Expand All

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 2 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 (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 you missed.

If you do not file your Motion to Remove Default within 10 days of the default judgment, you should fill out both the Motion to Remove Default Judgment form (Booklet 6) form and the form in Stay (Booklet 8), the Motion to Stay Execution, which will ask the judge to stop the eviction until you are heard on these motions.

Appealing

If you lose your eviction case and you think the judge or the jury made a legal mistake in deciding your case, 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 quickly within 10 days of the court's decision in your eviction case.¹⁶³

a. 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.

b. 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 the court to cover back rent and other costs. This is called an appeal bond .¹⁶⁴ If you cannot afford an appeal bond, you should fill out the Affidavit of Indigency (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 the Federal Poverty Guidelines Chart). You must also be able to show that your appeal is not frivolous.¹⁶⁵

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 to waive the bond, or if you believe the monthly payments ordered are too high, you have 6 days to appeal this decision.

If the apartment is in bad condition, you should ask that the amount of the appeal bond or rent payments be reduced to reflect the "decreased value" of the apartment and bring witnesses or evidence to the hearing to help you convince the judge of the reduced value of the apartment

Failure to make the ordered payments on time will end your appeal rights. The first payment is due 6 days after the court's decision.¹⁶⁶ 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.¹⁶⁷

If the higher court orders you to pay the bond, you have 5 days to pay it or else your appeal is dismissed.¹⁶⁸

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 (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 and give you permission to stay in your apartment for up to 6 months.¹⁶⁹ If you or someone living with you is disabled or 60 years of age or older, and you are being evicted for a reason that is not your fault (no fault eviction) the court can grant you a stay for up to 12 months.¹⁷⁰ 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.

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.¹⁷¹

Also, Massachusetts has an eviction storage law that provides important rights to tenants who are facing an eviction or who have been evicted. It is important to understand this law so that you can make sure your property is protected. For more information read the booklet: Eviction Storage Law: Protecting the Belongings of Tenants Facing Evictions.

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. See sample Execution (Form 21). This form may vary from court to court.

A landlord can get an execution on the 11th day after the court enters a judgment .¹⁷² When the landlord gets the execution, she must then give it to a constable or sheriff and pay that person to move you out.¹⁷³ Only a constable or sheriff can deliver the execution to you and move you out¹⁷⁴ . A constable must give you at least 48 hours written notice that you are going to be evicted. This paper is sometimes referred to as a “48 hour notice”. Usually, a constable does this by tacking a notice to your door or giving it to you.¹⁷⁵ 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 weekend¹⁷⁶

You can request an order to try to stop the move-out

Even if you have lost your case and received a 48 hour notice from the constable or sheriff there is one last legal avenue you can use to try to get more time. A Temporary Restraining Order (TRO) is a civil action you can file in court requesting emergency postponement of the constable’s move out. When granted, a typical TRO is for only 10 days. It may be extended at the court’s option (but this is unusual).

To request a TRO:

Go to the court in which your eviction case was heard and bring the constable’s 48 hour notice with you.
Find the housing court clerk or the civil clerk’s office. Request an immediate hearing to stop the constable’s move-out.
Fill out any forms the clerk says are necessary.
If you cannot afford the fee for the TRO, ask the clerk for an Affidavit of Indigency form and fill it out completely.
The court will usually call your landlord to come into court that same day for an immediate hearing.
During the hearing tell the judge why you need more time to move out and if there is someone who is elderly or disabled in your household. If you have a place to go, but need more time to voluntarily move out, the court is more likely to grant you some additional time. Bring any evidence about your new living arrangement to show that you will be able to move if given more time. If you do not have a place to move to, explain to the judge why becoming homeless will be dangerous for you or your family.

Keep in mind, since you have lost your case, the court is not required by law to give you any more time. A TRO is completely within the judge’s discretion.

Getting more time from your landlord

You can ask the landlord for more time, although he 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 3 months of the date the judgment was entered by a judge,¹⁷⁷ and the landlord must use it within 3 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.¹⁷⁸

If the constable physically evicts you from the premises, she must see to it that your possessions are placed in storage.¹⁷⁹ Be sure to remove your vital documents, medications, and valuables before the constable physically evicts you. It’s a good idea to remove anything you can before the constable places your possessions in storage since you may have difficulty accessing your possessions later. 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 6 months without payment.¹⁸⁰ You can postpone the sale for 3 months by paying half of the accrued fees plus reasonable costs.¹⁸¹ If your goods are damaged by the mover or storage company, they are probably responsible for the damage, and you may have legal claim against them.¹⁸² For more information about storage, see: Eviction Storage Law: Protecting the Belongings of Tenants Facing Eviction.

Endnotes

1:

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.

¹⁶⁸ . G.L. c. 239, §5.

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.

¹⁷⁰ . G.L. c. 239, §9.

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.

¹⁷⁶ . G.L. c. 239, §3.

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).

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Eviction

Housing, Apartments & Shelter

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Eviction

Housing, Apartments & Shelter