Robert Nislick Default Judgments in Massachusetts Summary Process Actions
By Robert Nislick
You are a Massachusetts residential landlord or commercial landlord. You have properly terminated the defendant’s tenancy for nonpayment of rent or for cause. You have properly served the tenant with a Summary Process (Eviction) Summons and Complaint. You have properly entered your residential eviction action in the Housing Court or District Court. If your case is a commercial eviction, you have properly entered the case in the District Court.
Most likely, your case will be scheduled for trial on the second Thursday following the entry date. You show up to court promptly. If you are in Worcester Housing Court, you have checked in at the clerk’s office. If you are in Boston Housing Court, you have checked in with the clerk in the courtroom. If you are in Northeast Housing Court, you are sitting in your seat.
The tenant is nowhere in sight. The clerk runs through the call of the list. Your name is called and you answer. The defendant’s name is called. No response.
“If a defendant fails to answer and also fails to appear for trial, said defendant shall be defaulted at the call of the trial list on the day set for hearing, provided that the plaintiff appears at the call of the list.” Uniform Summary Process Rule 10(a).
Can you leave yet? No. At this point, the landlord has to fill out a rule 10 affidavit. On this document, the landlord states that the tenant is not an infant or incompetent person, and is not in the military service, but instead resides at the place that he or she is renting from you. The landlord will also write down the monthly rent, any amount that the tenant has paid after the filing of the complaint, and the amount of rent or use and occupancy owed. The landlord has to fill this form out completely and accurately.
Then you hand it in to the clerk. At this point, the clerk will probably tell you that you can leave. There may be a reason why the clerk wants you to appear before the judge, in which case you need to stay until the judge hears you. Finally, you are done for the day.
Now what? If your paperwork is in order, then you will receive a Judgment of Summary Process By Default. You will still have to wait at least ten days. Then, some courts will send you an execution for possession. You may need to file an Application for Issuance of Execution.
Soon you should receive an Execution On Judgment For Summary Process. This is the document you need to move the tenant out.
Hopefully, at this point, the tenant will have voluntarily vacated the premises.
If not, can you do it yourself? No. You will want to send the Execution to the sheriff or to a constable. He will serve a 48-hour notice on the tenant, and schedule a move out.[1] If that officer removes the defendant’s personal property from the premises, he must store it. The plaintiff must also pay the moving costs, which are in theory, reimbursable from the defendant.[2]
Robert Nislick is a Massachusetts landlord-tenant lawyer who has practiced in Boston Housing Court, Worcester Housing Court, Northeast Housing Court, Southeast Housing Court, and the summary process session of the District Court.
[1] See G. L. c. 239, § 3.
[2] See G. L. c. 239, § 4.