In our last two posts, Considerations for Future Real Estate Investors and Congratulations–You Bought an Investment Property–Now What?, we discussed some of the reasons why it is a great time to invest in real estate and how to properly establish the landlord-tenant relationship. Even the most experienced landlord can find him or herself with a tenant that needs to be removed.
STOP! Do Not Attempt to Perform a Self-Help Eviction:
In Massachusetts, it is illegal to engage in “self-help,” which generally includes: changing locks, removing the tenants personal property, threatening or harassing the tenant, or turning off the tenant’s utilities (e.g., water, heat, gas, or electricity). Engaging in any of these activities will only make your legal problem worse: now your tenant may now have a viable defense (defeat your attempt to evict), a counterclaim (a money claim against the landlord for damages), or you may even be charged with a crime and you could go to jail (this is rare but can happen, especially for egregious behavior). We know, this doesn’t seem fair. Why should a bad tenant have so many rights? Don’t shoot the messenger. Here’s how to evict property.
Step 1: Notice to Quit:
The tenant must receive actual notice that the landlord intends to end the tenancy. There are two types of notice: a 14 day notice to quit and a 30 day notice to quit. A 14 day notice is only applicable if the landlord’s claim is based on the fact that the tenant has failed to pay rent. A 30 day notice is required in all other situations, i.e. termination of a tenancy at will or for the tenant’s breach of a provision in the lease.
Know your Dates:
- Service Date: the date on which the tenant is served with the Summons and Complaint. This date must occur at least one day after the notice period expires.
- Entry Date: the date on which the Summons and Complaint, Notice to Quit, and Return of Service are filed with the court. This date must be on or before the Monday (unless Monday is a holiday–then it’s Tuesday) entry date stated in the summons and complaint–it must be no fewer than 7 days nor more than 13 days after the Service Date.
- Answer Date: the date, which must be on or before the first Monday after the entry date stated on the Summons and Complaint, on which the Defendant’s answer and counterclaims must be filed.
- Trial Date: the date, which is ten days after the entry date stated in the Summons and Complaint, assuming there is no jury or discovery request which can automatically extend this date, on which the landlord and tenant must go to court for trial.
Step 2: Summons and Complaint:
If the tenant has not surrendered the premises by the expiration of the notice period, the landlord (now the Plaintiff) must serve a summons and complaint on the tenant (now the Defendant), usually by sheriff or constable, and then file the summons and complaint, return of service, and notice to quit with the Court (see the discussion of the “Entry Date” above). As is apparent from the discussion of important dates above, the process of service and the timing that it takes is technical. This process must be done properly–any deficiency can result in a dismissal of the Plaintiff’s suit.
Step 3: Trial:
On the day of trial, most cases are resolved through mediation or direct negotiation between the parties. Settlement is more predictable than going before a judge because a judge has broad discretion in granting stays of execution–in some narrow instances, up to one year. An attorney will be instrumental in protecting the landlord’s interests through careful drafting of a Settlement Agreement and by gauging the relative strength of the case. Further, your attorney will help you prove the facts alleged in your complaint at trial–the only way to prevail if negotiation is unsuccessful.
Step 4: Execution:
An execution is the written court order which allows the tenant to be removed. Removal must be done by a constable or sheriff and the tenant must be given 48 hours notice before removal can take place. A landlord who attempts to remove the tenant or the tenant’s property by himself or herself can be subject to the significant self-help penalties noted above.
The Best Way to Save Considerable Time and Money:
- Establish your Landlord-Tenant Relationship Properly: for starters: read our last post Congratulations–You Bought an Investment Property–Now What?, use a well drafted lease, hold the tenant’s money properly, do your due diligence before entering the contract, and document the condition of the premises at the start of the tenancy.
- Send a Notice to Quit as Soon as you Stop Receiving Payment: many landlords will allow many months of non-payment to occur before starting the eviction process. The cost of sending the notice to quit is relatively small in comparison to the saved time (and money) that early service can shave off the process.
- Call your Attorney Before Taking any Action: while it may not rise to the level of self-help, quite frankly, landlords already tend to fight an uphill battle. Even if the tenant has been rude and unpleasant, returning this behavior can result in judicial sympathy for the tenant.
Evicting a tenant can be unpleasant, time consuming, and costly. Problematic tenants are an unfortunate realty for real estate investors of all experience levels. Understanding the process and following these tips can help keep this process relatively quick and efficient.
Stiles Law, with offices located in Boston and Marshfield, Massachusetts, is a firm concentrating in real estate conveyancing and mortgage lending services, representing buyers, sellers, borrowers, banks, mortgage companies, investors, builders and developers in all of their real estate and mortgage transactions. Stiles Law serves all areas of eastern Massachusetts–the North Shore, Boston, and Cape Cod, in addition to the entire South Shore, including: Plymouth, Kingston, Duxbury, Hanover, Pembroke, Marshfield, Scituate, Norwell, Cohasset, Hull, Hingham, Weymouth, Braintree, and Quincy.
Copyright © 2015 Stiles Law, All rights reserved. Stiles Law is a Massachusetts licensed law firm and all content is based on Massachusetts law. The information presented above is meant to be used for general informational purposes and it should not be construed as legal advice or legal opinion on any specific facts. No child labor laws were breached during the creation of this Blog, further Bob Bonkley was compensated for his likenesses and appearances in the same.