What is a Housing Court? Is it just limited to landlord and tenant problems?
No. The Housing Court jurisdiction extends to almost all areas that relate to residential housing. There are many occasions where homeowners can utilize the Housing Court. For example, the Housing Court has zoning jurisdiction. The Housing Court can address general nuisance problems that may afflict homeowners within a neighborhood. The Housing Court Department has jurisdiction over the Consumer Protection statute. The Housing Court has criminal jurisdiction. The Housing Court also has jurisdiction to hear residential Summary Process (evictions) cases. In landlord-tenant matters, the court has jurisdiction over all contracts, torts, and equity matters that involve the residential relationship.
I understand that the Housing Court Department offer mediations to resolve cases before it. What is mediation?
Mediation is an informal, confidential process where a neutral person called a mediator acts to encourage and facilitate the resolution of a case without prescribing what it should be.
In contrast to a judge (or an arbitrator) who decides for the parties how a dispute will be resolved, a mediator (or conciliator) helps the parties reach their own mutually acceptable and voluntary agreement.
The role of the mediator may include: assisting the parties in identifying the issues, assessing and reviewing the relative strengths and weaknesses of their case, determining common interests, fostering joint problem-solving, exploring settlement alternatives, and finalizing a settlement agreement.
Throughout all Housing Court mediation, the decision-making authority remains with the parties to the case: unless and until an agreement is reached and approved by the judge; or, if no agreement is reached, until one or both parties terminate the mediation process and bring the case to court for determination by a judge.
Advantages of Mediation
Time It almost always takes less time to mediate a dispute than it does to try a case, in question-and-answer form, with objections heard and ruled upon in accordance with the law of evidence, and with much additional time necessary if there is prior discovery, an interpreter, a jury trial, or subsequent appeal. In addition, the parties are free to schedule their own mediation at their early convenience, rather than waiting for trial after service of the summons and complaint.
Confidentiality All communications in mediation are confidential, and neither the mediator's work product nor the participants' statements made in mediation relating to its subject matter can be later disclosed or admitted into evidence if a trial is held. Private sessions between a single party and the mediator are particularly confidential, because they are not even shared with the other party without permission. The only record of a mediation is the written agreement reached by the parties.
Control Mediation is an opportunity for parties to resolve their own dispute rather than turning over control of the decisional process to the judge. And, unlike the judge who is bound to make a decision on the legal evidence in accordance with the legal rules applicable to the case, the parties are free to reach settlement terms tailored to satisfy their own individual interests and needs.
Satisfaction Studies have shown that mediation generally results in a high level of participant satisfaction. And, parties often find the process useful even if only a partial rather than a complete resolution of the dispute is achieved, even if the parties are able only to "winnow away" the unimportant and undisputed issues from the narrow issues that must be tried.
Durability Studies have also shown that individuals are more likely to accept and abide by their own decisions rather than decisions imposed on them by others. Therefore, in comparison to adjudicated resolutions, mediated agreements are more durable, and the compliance rate is very high.
Binding effect Once approved and signed by the judge, a mediated agreement may become a judgment or court order with the same legal effect as if the judge decided the case.
Final effect Agreements for judgment, unlike court-ordered judgments, cannot be appealed. And like other judgments, agreements for judgment can be vacated or modified only where there is mutual assent, or changed unforeseen circumstances, or other unusual events.
Voluntary Mediation is a voluntary process, and cases are resolved by mediation only with the mutual assent of the parties. If, after reasonable effort, the parties cannot resolve their dispute through mediation, the right to trial is preserved and the judge will hear and decide the case.
I understand that the Housing Court Department employs Housing Specialist. What do they do?
The Housing Specialist Department gives procedural advice and quotes Massachusetts landlord-tenant law; provides support to presiding Judges; conducts state sanitary code violation inspections for the court; and serves as mediators in Summary Process and Civil housing cases. They also provide referrals to local social service agencies and shelter providers regarding emergency funds to prevent homelessness.
Questions From a Landlord:
How do I evict my tenant?
You first must determine what type of relationship you have with your tenant. The rules of the game change with this determination. There are two main types of tenancies; one at will and one under a lease. Traditionally, tenancies at will were oral. This is no longer the case. In general, if a tenancy is oral or even if it is in writing, with the provision that either the landlord or tenant can terminate the relationship by giving a notice that is equal to the interval between the days of payment or thirty (30) days, whichever is longer, it is a tenancy at will. One can easily obtain this Notice to Quit from a legal stationery store, a constable, or a rental housing association.
Most evictions are brought for non-payment of rent. If a tenancy at will is being terminated for nonpayment of rent, the landlord must give a written fourteen (14) days Notice to Quit to the tenant. Again, one can easily obtain this notice from a legal stationery store, Rental Housing Association, or from a Constable. Do not utilize a fourteen (14) days notice to quit which is designed for a tenant under a lease, as there are distinct differences.
If the tenant is under a lease, you must first examine the lease to determine how much time is required. If the reason is nonpayment of rent, by statute, you must give a written fourteen (14) days Notice to Quit.
After the notice to quit has run its course, the landlord can now proceed to serve a Summary Process Summons and Complaint form upon the tenant. Only an authorized Constable or Sheriff can serve this process. The Summary Process Summons and Complaint form is first obtained from the court. The Constable or Sheriff generally will assist the landlord in helping to fill out the Complaint form.
What is the purpose of the Notice to Quit?
The purpose of the Notice to Quit is to terminate the tenancy. Thus, if a lease by its own terms is terminated, no further notice to quit is needed. But if notice is required, and in most cases it is mandated, then the notice to quit must be given to the tenant. Indeed, the essence of giving the notice to quit is not service, but that the other party shall have notice. Unlike the Summary Process Summons and Complaint form which has to be served by a Constable or Sheriff, there is no one designated way of giving the notice to the tenant. If the tenant gets the notice in any way, then that is sufficient. On the other hand, if the landlord sends the notice by registered or certified mail, and the tenant refuses to pick it up, the tenant does not have notice. If a Constable or Sheriff serves the notice by last and usual, and the tenant denies receiving the notice, if the judge believes that testimony, then the tenant does not have notice. A landlord can give the notice directly to the tenant in hand, but it is always advisable to have a disinterested person witness this event.
Do I need a reason to evict my tenant?
Yes and No. If the reason for eviction is a violation of a lease term or nonpayment of rent, this reason must be spelled out in both the Notice to Quit and on the Summary Process Summons and Complaint. In all other cases, while the substantive law of the Commonwealth may not always require a reason for termination of a tenancy, the rules of Summary Process require a reason for eviction. The reason might be simply that a tenant is holding against the right of the landlord after the tenancy has been terminated.
Can I sue my tenant for money damages if I commence a Summary Process action?
In Summary Process, a landlord can sue the tenant for rent, even where the underlying reason for the eviction is not for nonpayment. Within the Summary Process Complaint form provided by the court is a section entitled Account Annexed. It is in this section that the landlord can specify the months that rent is owed. The landlord, however, cannot attach to the Complaint a demand for money for other types of damages. The landlord must institute a separate case to recover other types of alleged damages.
If I win my Summary Process case, how do I get my tenant out of the dwelling and when?
If the court finds for the landlord and grants no stays of execution, the tenant has ten (10) days to appeal from the date that the Clerk's Office enters judgment. On the eleventh (11th) day, the landlord can ask for an execution. The landlord cannot evict the tenant without the assistance of a Constable or Sheriff. The execution, which is the document which authorizes the eviction, is addressed to a Constable of Sheriff. The Constable or Sheriff then has to give forty-eight (48) hours notice to the tenant before the actual eviction can take place.
Can I move them out on a weekend?
No. The execution cannot be levied on at any time the court is closed.
How long is the execution good for?
For possession of the unit, it must be used within ninety (90) days. The monetary portion of the execution is good for twenty (20) years.
Can I collect my rent without going through Summary Process?
Yes, the landlord can sue the tenant for rent owed as well as any other damages in a Civil Action or through Small Claims. The procedures for Civil Actions are governed by the Massachusetts Rules of Civil Procedure. Normally, it would be advisable to hire an attorney before suing a tenant for money damages in a Civil Action. Small Claims, on the other hand, was designed to assist litigants who wish to proceed without an attorney. There is normally a $2,000.00 ceiling on the amount of money damages that can be sought. Thus, if a tenant owes $4,000.00 in rent, at the time that a Small Claims action is instituted, $2,000.00 of that amount will be waived. On the other hand, there is nothing to prevent a landlord from suing for rent as each month comes due, as long as the contract rent is not above $2,000.00.
Can I stop my tenant from causing damage to the apartment or creating other nuisances, before going through the eviction process?
Yes. The Housing Court Department was designed for the person without an attorney, be it landlord or tenant. The landlord can come into the Housing Court to seek equitable relief to enjoin nuisances.
Can I charge the tenant for water?
Maybe. It is generally the landlord's responsibility to provide and pay for water for the dwelling.
The Governor has signed into law an act authorizing water sub-metering in residential tenancies. This statute overrules an advisory ruling issued previously by the Department of Public Health. The statute amends M.G.L. c. 186 by adding a new section. While paragraph (a) sets out the definitional section, the rest of the section allows the landlord to enter into with a residential tenant a new contract whereby the landlord may charge that tenant for water usage only if the landlord installs water conservation devices for all faucets, showerheads and toilets in the unit.
There was a drug raid in my tenant's apartment. How soon can I get them out?
Under M.G.L. c. 139, §19, if drugs were found in the unit, the landlord may avail himself/herself to a speedy eviction.
I served a Notice to Quit several months ago. Do I have to serve another Notice to Quit or can I use the prior notice and now serve the Summons?
A question such as this one is legal in nature and thus beyond the scope of court personnel to address. While a number of variables impact an answer, such as the language used in the original notice to quit, generally speaking, the older the notice to quit, the greater likelihood a new one may need to be re-served.
The defendant was not in court. What do I (the plaintiff) do now?
The Court has forms which you should fill out before you leave. Nothing further is required at this time. You will be receiving a "default notice" by mail, as will the defendant. If the latter does not move to timely remove said default, the Clerk's Office may be contacted relative to your further post-judgment options.
After I have removed my tenants from my property, how do I go about collecting the rent owed?
Several options are available. They range from supplementary process or collection directly from the tenant in a court ordered context, to levying against assets of the debtor or even attempted recovery against a third party, such as an employer holding wages, through trustee process. The Northeastern Division favors post-trial motions to collect on the judgment.