The following is a brief overview of many of the steps involved in a typical Summary Process Eviction, including some of the procedures at the housing courts. Please note that this description primarily describes the Boston Housing Court, however the other state housing courts follow similar procedures. Procedures at the District Courts are roughly similar in many respects, however many such courts do not have formal mediation programs and do not have the resources available at housing court.
Please note that this description is for informational purposes only, is not meant to be comprehensive, and is not intended to be legal advice. If you would like legal advice regarding your specific case, please feel free to contact us for more information.
Starting the Eviction Process
In order for an eviction to begin, the existing lease must have expired or the tenancy must be terminated by the landlord. In the latter instance, this is typically accomplished with a Notice to Quit of 14 or 30 days, which informs the tenant of a particular day upon which the tenancy will be terminated. The type of Notice to Quit a landlord must use depends on a variety of factors, such as applicable law, any agreements between the landlord and tenant, and the type of tenancy. A failure by the landlord to adhere to the applicable statutory and other requirements for a Notice to Quit can result in a successful Motion to Dismiss by the tenant. While the Notice to Quit technically gives notice of the termination of the tenancy, the tenant does not need to vacate the premises unless and until they voluntarily agree to do so or are required to by court order.
Following a properly served Notice to Quit, the landlord must then obtain a Summary Process Summons and Complaint from the applicable housing or district court, serve it upon the tenant, and properly file it at the court. Again, there are specific statutes that govern the form and content of the complaint and the timing of when it must be filed. It is very important for landlords to properly follow these rules as even a small departure from the time requirements, for example, can lead to dismissal of the entire case.
After the Complaint is filed, the court case is commenced. As a tenant, it is important to read the Summary Process Summons and Complaint very carefully, as it contains important deadlines including when to appear in court and, very importantly, the date by which requests for discovery and an answer to the landlord’s complaint must be filed. A tenant’s answer includes the tenant’s response to the landlord’s allegations, explaining why the tenant believes he or she should not be evicted as well as presenting any related counterclaims that the tenant may be able to bring against the landlord. A failure to file a timely answer can result in a waiver of a tenant’s ability to request a jury trial so it is important to pay attention to any stated deadlines.
The First Day in Court
It is very important to show up on the day of your court hearing. While this seems obvious, a large percentage of litigants miss their date. If you are a landlord, this can result in the court dismissing your case, which will require that you start again from the beginning of the process. If you are a tenant, this can result in a default judgment against you, meaning that the landlord automatically wins the eviction case and will be awarded possession of the premises and often some amount of damages based, for example, on unpaid rent.
Assuming both parties show up in court, the Clerk will call the list of cases scheduled for that day and assign them either to try mediation or to go directly to a judge. A large majority of cases settle through informal negotiation or more formal mediation at the Housing Court (and at the district courts as well). It is typically a good idea to try mediation first as litigants always have the option of rejecting a settlement offer and going in front of a judge if they wish. Note that every case is different and in some cases, mediation may not be appropriate.
If both sides agree to try mediation, they will then have some period of time to try to reach a resolution of the case. This can be done between the parties themselves, between the parties’ attorneys, or with the help of Housing Court (or District Court, if available) mediators. If an agreement is reached, both parties sign it and it becomes an order of the court, which binds the parties in the same way as a ruling from a judge.
If the parties are unsuccessful at mediation or decide to forgo mediation at the outset, they will then be assigned a Housing Court (or District Court) judge, who will likely hear the eviction case (unless a jury trial has been requested, in which case the parties will have to come back on a future date when a jury can be assembled). It is important to note that almost all of the eviction cases scheduled in a particular day will be heard that day, so it is important for both landlords and tenants to come to their initial court date prepared to present any necessary evidence to the court. For landlords, this might include rent payment records, documentation showing repairs were done, and witnesses such as property managers or repairmen who might testify. For tenants, typical evidence includes receipts for rent paid, inspection reports showing problems with the apartment, photos of the apartment, etc. If your case is called for trial and you don’t have the necessary evidence, it is very unlikely that you will have another chance to present it to the court. Many otherwise strong cases have been lost simply because a great piece of evidence was left at home, so be particularly careful when planning what to bring to court. Also note that most judges will not accept digital cameras or camera phones as evidence – litigants should print out any pictures they wish to show to the judge.
Following the hearing, the judge may give the parties an immediate answer such as granting or denying a particular motion, or, more commonly, the judge may take the matter under advisement and issue the parties an opinion in the mail.
If you are a landlord or tenant involved in an eviction and would like to benefit from the experience of a Housing Attorney, please contact us to see if we may be able to help.