Motion to Issue Execution

By Robert Nislick

You are a Massachusetts landlord and you are trying to evict your tenants. You have already terminated their tenancy, served them with a summons and complaint, entered the case in the Housing Court or District Court, and appeared on the day of trial.

On the day of trial, you mediated your case with a housing specialist. You entered into a Summary Process Agreement for Judgment. The tenants agreed in writing to catch up on past due rent and to pay the rent on time going forward. The judge approved the agreement and it became an order of the court. You left the courthouse feeling pretty good.

Then the first of the month comes. You haven’t received any money from the tenants. They haven’t paid the rental arrearage either. How can this be? After all, they said they would pay, and you believed them.

The tenants have breached the agreement. Now you are losing even more money. And the tenants are still living in the apartment.

Your agreement for judgment probably includes a provision like this:

“If either party alleges that the other party has failed to comply with the terms and conditions of this Agreement, she/he may mark a hearing for enforcement of the Agreement or for issuance of execution upon three (3) business days, written notice to the other party and filed with the court. The three (3) day period begins when the other side receives notice. Unless otherwise agreed, notice is to be delivered rather than mailed.”

What can you do now? At this point, the landlord will want to file a Motion to Issue Execution. A motion to issue execution asks the Court to give you the document that can be used to physically remove the tenants and their belongings from the premises. In the motion, the landlord explains that the parties entered into an agreement for judgment, states that the tenants have substantially violated the agreement, explains why, and asks the Court to issue the execution.

The landlord then files the motion with the Court, marks it to be heard at an appropriate time and date, and notifies the tenants. On the day of the motion hearing, the Court will likely ask the parties to mediate the case again. This may present a good opportunity to collect some money from the tenants. If the tenants have breached the agreement for judgment and you cannot work out some arrangement with them, or if the tenants have not shown up, then you will appear before the judge and argue your motion. The motion will probably be allowed.

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. 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.

Robert Nislick is a Massachusetts landlord-tenant lawyer who practices in Boston Housing Court, Worcester Housing Court, Northeast Housing Court, Southeast Housing Court, Western Housing Court, and the summary process session of the District Court.

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