If a judge enters an
1. Removing a Default Judgment
If you missed your eviction trial and a court entered a
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.
If you lose your eviction case and you think the judge or the jury made a legal mistake in deciding your case, you may
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
If a judge
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
3. 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
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.
4. What Happens If a Court Orders You Out
If your landlord wins the eviction case, she will get a piece of paper called an
A landlord can get an execution on the 11th day after the court enters a
5. 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
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.
6. 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
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."
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.
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.
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).