Robert Nislick By Robert Nislick
You are a Massachusetts landlord. You leased an apartment to a tenant. The lease ended. The tenant did not leave. How do you get rid of the holdover tenant and get your property back?
Some landlords believe that you can file the summary process action as soon as the lease is over, without serving any kind of notice on the tenant first. That would be a mistake.
In a recent case, the Court ruled that a landlord may not proceed with an eviction action against a tenant at sufferance, without any constraints. The Court noted that a tenant at sufferance is entitled to a reasonable period to remove himself or herself from the premises, and that the tenant must be afforded a fair opportunity to remove personal property and to avoid being the subject of an eviction action, with liability for resulting costs. Moreover, the court stated that what constitutes an reasonable period will depend upon consideration of all the circumstances of the case.
In that case, after a lease expired, the landlord served by constable a letter confirming that the tenancy had ended, and advised the tenant, that if she did not vacate with premises within forty-eight hours, the landlord would proceed with an eviction action. The Court did not specifically rule on the adequacy of the forty-eight hour notice standing alone. Rather, the Court found that taken as a whole, including all of the communications between the parties, the tenant was provided reasonable notice and that she had an adequate opportunity to vacate the premises.
In light of this case, a landlord should have a constable serve the tenant at sufferance with a notice that the lease has expired with a demand that the tenant vacate. It would be most prudent to give the tenant at least three days notice that unless the tenant vacates an eviction action will be commenced against him or her.
If the tenant still does not vacate after receiving this notice, then the landlord should commence a summary process action against the tenant, and can also seek any back rent or use and occupancy that may be owed.
Attorney Robert Nislick, a Framingham, Massachusetts eviction lawyer can handle cases like this and other real estate matters. Contact him today for more information.
I was told that in order to deliver a notice to quit in order to regain possession of the property, it has to be 30 days, even for a tenant at sufferance. Is that accurate?
Hi Eric,
The number of days of notice differs based on several different factors. Depending on the situation, a landlord might give a 7, 14, 30, or 90 day notice to quit. In the context of a holdover tenant, or tenant at sufferance, the courts in Massachusetts say that the landlord has to give reasonable notice, and a period of 3-7 days would probably pass muster as reasonable, in my opinion, and in my experience.
Thanks for commenting.
Robert Nislick
if tenant at sufferance continues to pay monthly rent amount after lease ends , doesn’t he become a tenant at will rather than a tenant at suffereance and then doesn’t the 30 day notice become necessary?
In a situation where a lease term ends, the tenant does not vacate, but instead pays rent, which the landlord accepts, the tenant becomes a tenant at will. A landlord should be careful about accepting the rent. The tenant would no longer be a tenant at sufferance. Rather, he would be a tenant at will, who would be entitled to a 30-day notice for a no-cause eviction. However, the landlord could still terminate with a 14-day notice, for nonpayment of rent.