Summary Process Action – Basic Overview
1. Termination of tenancy. In most cases, a landlord is required to give a tenant a “Notice to Quit” prior to instituting eviction proceedings in court. Failure to do so, when required, can result in a dismissal of the eviction case. The required or permissible type of notice to quit depends on the particulars of the tenancy. The landlord’s motivation for evicting a tenant, and whether there is a lease, an involved housing authority, or a history of complaints regarding apartment conditions, all can affect what type of notice to quit is permissible or appropriate. It is important that a landlord use the permissible and appropriate type of notice to quit, as failing to do so can give rise to a claim by the tenant and against the landlord.
2. Filing the Summary Process Complaint in Court. In direct contrast to a standard civil action, summary process complaints are served on the tenant prior to filing the case in court. The complaint itself is a standard form known as the Summary Process Summons and Complaint. It can be obtained from the appropriate court, and completed by the landlord or their attorney. It is important that it be completed, served, and filed properly, as defects can be fatal to the landlord’s case. Very important, is that if the landlord is not a natural person, the landlord must obtain counsel to file suit under existing Massachusetts law, or the case can be dismissed.
3. Discovery. Discovery is the process of gathering information about your opponent’s case. During eviction proceedings, discovery rights are not automatic as they are in traditional civil litigation. However, either side may perfect their discovery rights, and without having to obtain judicial approval, simply by demanding discovery in the manner and timeframe set forth by the rules for summary process cases. When a tenant does demand discovery, they postpone the initial trial date. In cases where a landlord decides they want discovery in response to a counterclaim, they must file a motion, however the rules provide that a motion for that reason has established good cause.
4. Trial. In many courts, clerk magistrates call cases set for trial to ascertain if the case can settle or if the parties are willing to mediate their dispute. If a case does not settle, it is brought before a judge for trial. By default, the trials are bench trials, which means a judge decides the case without a jury. Jury trials can be requested, and if done properly will typically result in the first trial date being converted to a status or pretrial conference. The jury trial will take place at a later date to be decided at the pretrial conference, which may be the first trial date or a later date depending on the judge’s preference.
5. Appeals and Stays of Execution. Either party may file a notice of appeal within ten days of a judgment they are not satisfied with. Unless excused, a tenant will have to pay an appeal bond. Even if the bond is waived, the tenant must continue paying rent that becomes due to stay in the apartment during the appeal. Tenants can also request a stay of execution (should be done before the trial concludes), allowing them to stay in their apartment for six months, or in some cases, up to a year, provided they keep paying rent. This option is not available however, if the eviction action was based on non-payment of rent, unless the tenant prevailed on a counterclaim and pays the difference they owe plus costs and interest within 7 days.
6. Removing the Tenant. A tenant cannot be removed until an execution has issued to the Landlord (following the time to appeal or the disposition of an appeal filed). Landlords may never lockout or physically remove a residential tenant themselves (or by an agent other than those specially allowed to do so by law). Self-help, as it is sometimes called, can result in both civil and criminal charges against the landlord. Rather, a constable and moving company must be hired (the constable can often recommend a moving company for these purposes), and the constable given the original execution. The constable then must give the tenant 48 hours notice before they remove a tenant and their belongings, and subsequently place the belongings in storage. Unfortunately, the landlord must initially pay the costs of such, though the tenant can be required to reimburse them. Finally, if the tenant does not timely retrieve their possessions, the storage facility may auction them off.