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.15 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. This can be a very intimidating document, but you do not have to move out by the date listed on the notice. 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 if the landlord is terminating your tenancy for reasons related to non-payment, some other lease violation or violation of the law, or for no reason at all (no fault). 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.16 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).17
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. See Postponing the Eviction.
If your landlord is evicting you for non-payment of rent
Your landlord must send you a special form with the Notice to Quit if your landlord is evicting you for non-payment of rent. This form tells you what help you can get to stop an eviction.
If your landlord does not give you this form, it is against the law for them to file a non-payment eviction case in court. You may be able to stop the eviction.
Endnotes
15 . 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.
16 . Moylan v. Williams, Boston Housing Ct., No. 09-SP-5006 (Muirhead, J., Jan. 12, 2010) (action dismissed despite failure to pay rent because notice to quit did not state such failure was grounds for notice); Brown-Carriere v. Moore, Boston Housing Ct., No. 14-SP-1267 (Muirhead, J, May 20, 2014) (where grounds in notice to quit and complaint were inconsistent, action must be dismissed).
17 .
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 Media v. Diaz, Boston Housing Ct., No. 14-SP-4345, (Muirhead, J., Nov. 20, 2014); Jones v. Leach, Boston Housing Court No. 10-SP-4586 (Muirhead, J., Dec. 29, 2010); Dixon v. Myers and Young, Boston Housing Court, No. 10-SP-1656 (Muirhead, J., June 4, 2010); Coriano v. Espino, Boston Housing Court, No. 07-SP-2157 (Muirhead, J., June 28, 2007).
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 (Muirhead, J., June 20, 2007); Santana v. Brooks, Boston Housing Court, No. 05-SP-00541 (Pierce, J., Apr. 14, 2005); Smith v. MacDonald, Boston Housing Court, No. 02-SP-05448 (Edwards, J., Mar. 11, 2003). 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.
18 . 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.
19 . 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. Mroue, Boston Housing Court, 07-SP-1679 (Muirhead, J., May 23, 2007); Beacon v. Doe, Boston Housing Court, 03-2551 (Winik, J., July 15, 2003).
20 . G.L. c. 186, §§11 and 12.
22 . 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.
24 . 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).
25 . Williams v. Seder, 306 Mass. 134, 137 (1940).
26 . 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 6 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 Postponing the Eviction.
27 . 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 McGuire v. Haddad, 325 Mass. 590 (1950). 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).
28 . See Sukhorukova v. Farmer, Western Division Housing Court, No. 10-SP-2501 (Fields, J., July 19, 2010).
29 . 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 (Fein, J., Nov. 17, 2008); see also Hackett v. Smith, Boston Housing Ct., No. 14-SP-1109 (Muirhead, J., Apr. 11, 2014) (finding that water usage and mailbox replacement fees could not serve as grounds for terminating a tenancy when served as a notice to quit for nonpayment of rent). 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) (plaintiff not entitled to late fees because there was no written agreement). 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-3931 (Muirhead, J., Oct. 19, 2009).
32 . 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 (Muirhead, J., Jan. 20, 2009) (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).
34 . 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).
35 . Connors v. Wick, 317 Mass. 628, 631 (1945).
36 . U-Dryvit Auto Rental Co. v. Shaw, 319 Mass. 684, 685 (1946);
37 . 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).
40 . 1985 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.
41 . In Bennett 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.
42 . 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."
43 . 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.
44 .
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 drug-dealing husband, but not his wife); 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, but allowing father to retain tenancy).
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).
45 . 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 finds no basis for the no-knock warrant. Caribe Management Corp v. Serrano, Hampden Housing Court, 90-SP-2872 (Abrashkin, J., Jan. 4, 1991).
46 . 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 husband’s drug activity, she was not responsible for his illegal activity and was in fear of him).
47 . 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."