1. Paying the Rent Owed
a. Tenants with Leases
If you have a lease and you receive a notice to quit for non-payment of rent, you can "cure" the non-payment and prevent the eviction by paying your landlord all the past and present rent owed. Your landlord cannot evict you for non-payment of rent if she is claiming that you failed to pay something other than rent (like portions of a security deposit, late fees, or repair costs).48 Therefore, you do not need to pay those charges in order to cure.
If you cure the non-payment after you receive a summons and complaint, you must pay all the rent owed, interest on the amount owed, and your landlord's costs of filing an eviction case, on or before the answer date.49
The answer date is typically the Monday after the day the landlord has filed the case. It is sometimes shown on the summons and complaint. If the answer date is not clear from the summons and complaint, contact the clerk and ask her when your answer is due.
The costs of filing an eviction case include the purchase of a summons and complaint form, the cost of serving these papers on you, and the cost of actually filing them in court ($135 in housing court, $195 in district court). These costs cannot include fees for the landlord's lawyer or any of the costs of serving a notice to quit on you (like constable fees).
If you cure a non-payment of rent after your landlord has filed an eviction case in court (that is, after you receive a summons and complaint), make sure you get a written, dated receipt for the amount that you paid and a written agreement from the landlord that she will dismiss the case. Get a copy of this agreement immediately after you and your landlord sign it. On the date your eviction case is scheduled for trial, you should go to court with your rent receipt and copy of the written agreement and be sure that the landlord also gives the court the agreement and that the judge actually dismisses the case. Landlords have been known to sign written agreements to dismiss cases and not show them to a judge. If the landlord does not show up in court, you should show the court the agreement.
b. Tenants without Leases
If you are a tenant at will and are being evicted for non-payment of rent, you can "cure" the non-payment and stop the eviction by paying all the back and current rent you owe within 10 days after receiving a notice to quit. However, if you have received another 14-day notice to quit for non-payment of rent from your landlord within the previous 12 months, you do not have a right to cure the non-payment.50
If the 14-day notice to quit does not contain a statement that tells you that you can cure the non-payment within 10 days, you can stop the eviction by paying all rent owed by the answer date.51 The answer date is sometimes shown on the summons and complaint. If the answer date is not clear from the summons and complaint, contact the clerk and ask her when your answer is due.
c. Your Landlord Refuses Payment
If you attempt to "cure" the non-payment of rent by offering to pay the full amount owed but your landlord refuses to accept it, you should either have a witness watch you try to pay the rent or send the rent again by certified mail and request a return receipt. If the landlord refuses to accept the certified mail, save the return receipt that proves she refused delivery. If your landlord brings an eviction case against you in court, this return receipt will be important proof that you tried to cure the non-payment within the time period allowed by law, and your witness can testify about your attempt to pay the rent.
d. Your Landlord Accepts Rent After Sending Notice
If your landlord accepts rent after sending you a notice to quit, the acceptance of rent may result in the creation of a new tenancy at will.52 Your landlord can prevent creating a new tenancy and reserve her rights to evict you by notifying you that she will accept your money "for use and occupancy only." This is called a "reservation of rights," and a landlord must notify you of this before or at the time you make the rent payments; writing "for use and occupancy" on the back of the rent check is not sufficient because you do not receive it until you receive your next monthly bank statement.53 Although acceptance of even 1 rent payment may be sufficient to cure the non-payment,54 whether or not the tenancy has been reinstated is a question of fact that must be decided by the court under the particular circumstances of each case.55
2. Late Government Assistance Check
If non-payment of rent is caused by a late rental subsidy check or late check from the Department of Social Security or Transitional Assistance and you receive a notice to quit and a court summons and complaint, you should immediately ask the court to continue (postpone) the hearing date for at least 7 days so that the check can arrive. Once you receive the check, if you pay the landlord the rent owed, interest on this amount, and the landlord's costs of filing an eviction through this continuance period, the court must treat the tenancy as not having been terminated and must dismiss the case.56
The costs of filing an eviction case include the purchase of a summons and complaint form, the cost of serving these papers on you, and the cost of actually filing them in court ($135 in housing court, $195 in district court). These costs cannot include fees for the landlord's lawyer or the cost of serving a notice to quit on you.
If part of the rent owed should have been paid by a housing agency, you may want to consider bringing the housing agency in to the case as a party in the lawsuit through a legal process called “impleading.”57 This is complicated, you may want to seek legal help.
3. Motion to Dismiss
If a landlord fails to follow the proper steps to terminate your tenancy or file an eviction case in court, you may be able to get your case dismissed before the trial.58 For example, if your landlord does not send you a proper notice to quit, you have paid all the rent you owe, or you were not properly served with a summons and complaint, you should file what is called a motion to dismiss as soon as possible.
To do this, fill out the Motion to Dismiss form (Form 20). Bring it to court and deliver a copy to the landlord or her attorney. If you do this on or before the entry date listed on the summons and complaint and a judge rules in your favor, your case will be dismissed and you do not need to do any further preparation for trial.59 If a judge rules against you, or if the judge does not decide the motion that day, you must file your answer and discovery (as described in this chapter), prepare to go to court, and appear in court on the trial date.60 Your answer should include the reasons for dismissal that you wrote in your motion to dismiss.
If you do not file the motion to dismiss by the entry date, you have until the answer date listed on the summons to file it.61 You should then go to court on the original trial date and ask a judge to dismiss the eviction.62 See the section in this chapter called Important Dates for a description of different dates to keep in mind.
If you have sent the landlord a request for information using the Discovery forms in Discovery Forms(Booklet 4), you do not have to be prepared to present your case on the original trial date. A clerk will automatically postpone your hearing for 2 weeks. However, a judge will hear your motion to dismiss on your original trial date.
If you have not sent your landlord discovery forms, when you go to court on your original trial date to ask the judge to dismiss the eviction, you should be prepared to present your case in the event that the judge does not dismiss it. To prepare, read Fighting an Eviction in Court. If a judge denies your request to dismiss the case, you should raise at trial the same reasons that you checked off in the motion and in your answer.
When landlords go to court to evict tenants, they sometimes make legal claims against tenants for money damages other than rent. For example, a landlord may claim that you have damaged the apartment and that she should be compensated. The law does not allow a landlord to ask for such money damages in an eviction case, and you should ask a judge to dismiss any claims for money other than rent.63
4. Negotiating a Settlement
Before you get to court, you may want to try to negotiate a resolution to the case, called a settlement, with the landlord. A landlord may agree to what you want in exchange for some promise on your part. Keep in mind that, even if you lose the case, it will cost your landlord both time and money to go to court. Saving of time and money are two incentives for a landlord to settle. Depending on what you want, it may also be more advantageous for you to settle out of court than to go through a trial.
Before attempting to reach a settlement, you should carefully consider what you want and what you can reasonably expect to get from the court, based on the strength of your case.
- Use The Answer (Booklet 3) to help you identify and evaluate potential defenses and counterclaims.
- Do not agree to a payment plan for back rent that is more than you can afford.
- If you do not have another place to live, do not agree to move.
Before you accept any agreement, read it very carefully. If you reach an agreement, you should file it with the court. Do not trust your landlord or her attorney to do this without your being there. Too many tenants have found out the hard way that their landlord could not be relied upon to file the settlement agreement, but instead decided to proceed with the eviction case—without the tenant being there.
You may settle your case at any time during an eviction before a judge or jury makes a final decision after the hearing. For more on how to negotiate a good settlement, see Chapter 14: Using the Court System - Negotiating a Good Settlement.
5. Tenancy Preservation Program
The Housing Court has a special program called the Tenancy Preservation Program (TPP). TPP seeks to prevent homelessness. It works with individuals and families facing eviction because of a reason related to a physical or mental health disability. Disabilities may include developmental health issues, substance abuse, and aging related impairments.
TPP is voluntary. TPP staff work with landlords and tenants to develop a reasonable accommodation for the disability. TPP staff identify the reasons for the eviction and needed services, then develop a treatment plan to keep the tenancy going. TPP makes regular reports to all parties involved in the case including the court, the landlord, and the tenant. And TPP monitors the case for as long as is necessary.
To be eligible for TPP a household member must have a disability and the disability must relate to the lease violation. If you are in housing court and feel that TPP can help you ask the Clerk to direct you to TPP staff.
48 . See Patti v. White, Boston Housing Court, No. 11-SP-2116 (Pierce, C.J., Dec. 27, 2011) (costs of missing trash containers and removal of personal property stricken); Deep v. Tremblay, Western Housing Court, No. 10-SP-4716 (Fields, J., Apr. 15, 2011) upheld without addressing specific issue, 81 Mass. App. Ct. 1131 (2012, Rule 1:28) (late fees); Alzamora v. Voguenel, Boston Housing Court No. 06-SP-3517 (Edwards, J., Nov. 15, 2006); Miguel v. Veenstra, Southeast Housing Court, No. 05 SP-3364 (Edwards, J., Dec. 9, 2005); Hackett v. Smith, Boston Housing Court, No. 14-SP-1109 (Muirhead, J., Apr. 11, 2014) (mailbox replacement and additional water usage).
55 . Slater v. Krinsky, 11 Mass. App. Ct. 941, 942 (1981) (rescript).
58 . Mass. R. Civ. P. 12(b). The most common ground is that the court lacks jurisdiction or power to decide the case. Mass. R. Civ. P. 12(b)(1). Jurisdiction in summary process is limited by statute to cases in which the defendant is in possession of the premises "unlawfully against the right of the plaintiff." G.L. c. 239, §2. If the tenancy has not been "terminated" properly, the tenant is not in unlawful possession and the courts lack jurisdiction.
59 . The rules for eviction cases in court are the Uniform Summary Process Rules (U.S.P.R.), which are reprinted at the end of this book.
62 . If the tenant files a demand for discovery, the trial date will automatically be postponed for two weeks. The motion to dismiss, however, will be heard on the original trial date.
63 . G.L. c. 239, §2 defines the court's jurisdiction in summary process and allows the landlord only to recover possession of the premises, rent, and/or use and occupation. "Summary process is a purely statutory procedure and can be maintained only in the instances specifically provided for in the statute." Cummings v. Wajda, 325 Mass. 242, 243 (1950).
64 . The rules for eviction cases in court are the Uniform Summary Process Rules (U.S.P.R.), which are reprinted at the end of this book.