Fourteen Days Notice to Quit For Nonpayment of Rent in Massachusetts

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By Robert Nislick

You are a Massachusetts landlord. Your tenant is not paying rent. You want to evict him. What can you do to get the eviction process started?

Most landlords know that before you can evict a tenant for nonpayment of rent, the landlord must serve, and the tenant must receive, a fourteen-day notice to quit for nonpayment of rent.

If all you are looking for is a form, then here is a link to a form that is available on the Massachusetts Court System web site:

http://www.mass.gov/courts/docs/lawlib/docs/notice-quit-14.pdf

Here is a link to another form that is available on the Plymouth County Sheriff’s Department web site:

http://www.pcsdma.org/Forms/14%20Day%20Notice%20to%20Quit.pdf

Here is a link to another form that is available on the Suffolk County Sheriff’s Department web site:

http://www.suffolksheriffma.com/14_Day_Notice_To_Quit.pdf

Even though these forms are available to use for free, there is no substitute for having an experienced Massachusetts landlord-tenant lawyer handle the eviction from start to finish. This includes drafting the notice to quit. Some landlords think they can do an eviction on their own, or maybe do the notice to quit themselves, and then hire an attorney to show up at court on the day of trial. I would not recommend that approach.

Even if one of these forms might work, it might be completely inappropriate to use one of them. Although I am providing links to these forms, I am certainly not advising that everyone or anyone use them. Something slightly different or completely different might be necessary based on the specific facts. It may be that your case is a simple nonpayment of rent case, and the service of a 14-day notice to quit would be best. It might not be, however. It is common for landlords to have misconceptions about how to terminate a tenancy and how best to move the ball down the field.

An experienced landlord-tenant attorney may see your case differently. There are various situations in which I may advise proceeding with a 7-day notice to quit, or a 30-day notice to quit, or a 90-day notice to quit, or an immediate termination, or a notice that provides a holdover tenant less than seven days to vacate.

The circumstances might be such that serving any notice to quit would be less than prudent, and an alternative course of action would be better. Additionally, issues of timing in the eviction process are important, and are too numerous to discuss in this article.

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.

Stays of Execution in Massachusetts Landlord and Tenant Cases

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.

You tried your case and the court found that you are entitled to a judgment and execution for possession, or perhaps you entered into a Summary Process Agreement for Judgment with your tenants, which requires them to vacate by a certain date.

A couple of weeks pass and the tenants still have not moved out. They have no intention of leaving. In fact, the tenants want to stay even longer. The tenants file a Motion to Stay Execution. Essentially, the tenants are asking the court to give them even more time to move.

Do the tenants have any grounds for seeking more time, even though they have already lost their case?

If the eviction was a no-fault eviction, rather than an eviction for nonpayment of rent, then the court can grant the tenant a six-month stay, or if the tenant is handicapped or at least 60 years old, then the court can grant the tenant a twelve-month stay. See G. L. c. 239, § 9.

The tenant must demonstrate that he, “cannot secure suitable premises for himself and his family elsewhere within the city or town in a neighborhood similar to that in which the premises occupied by him are situated; that he has used due and reasonable effort to secure such other premises; that his application is made in good faith and that he will abide by and comply with such terms and provisions as the court may prescribe; or that by reason of other facts such action will be warranted”. See G. L. c. 239, § 10.

How can the landlord oppose the tenant’s efforts?

Let me first digress to say that, in my opinion, a landlord should always hire an attorney to handle the eviction from start to finish. I have heard way too many stories from landlords who thought they could save a few bucks by doing it themselves, only to find that they have made mistakes that cost them time and money. The experienced lawyer can anticipate obstacles that may arise, and also avoid traps for the unwary.

Primarily, the landlord will want to point out that if the eviction was brought for nonpayment of rent, the tenant is not entitled to a stay, as a matter of law. If the eviction was a no-fault eviction, however, the landlord will need to counter the tenant’s arguments that he meets the criteria for a stay.

In any event, if the court grants a stay, G. L. c. 239, § 11, requires essentially that a stay shall be conditioned upon the tenant’s depositing into court for occupation of the premises during the stay the amount he was paying for rent previously, any additional amount the court deems reasonable, and all unpaid rent prior to the stay. The statute also provides that the court to shall pay to the landlord the amounts deposited into court.

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.

Commercial Tenants’ Rights and Remedies in Massachusetts

By Robert Nislick

You are a Massachusetts commercial tenant. Your company leases space and pays a handsome rent to your Massachusetts commercial landlord. Unfortunately, the landlord utterly fails to maintain the leased premises. The condition of the space is so poor that it affects your ability to operate your business. What can you do?

One question a commercial tenant might ask is whether there is a right to withhold rent. The answer is no. In sharp contrast with the law governing residential tenancies, Massachusetts law recognizes no right of a commercial tenant to withhold rent.

Suppose that a commercial tenant stops paying rent because the conditions of the leased premises are defective. The landlord terminates the tenancy and commences a summary process action. In addition to attempting to assert a rent withholding defense, the commercial tenant also files counterclaims based on the bad conditions.

In this situation, a court is highly likely to dismiss the tenant’s counterclaims. “[T]he summary process statute precludes counterclaims in commercial actions”. Fafard v. Lincoln Pharmacy of Milford, Inc., 439 Mass. 512, 515 (2003). Moreover, a tenant’s argument that the landlord breached the lease “does not justify withholding rent”. See Fafard, 439 Mass. at 516.

What if the commercial tenant simply stops paying rent? Unless “the breach of contract has an extortionate quality”, “a failure to perform obligations under a written lease, even though deliberate and for reasons of self-interest, does not present an occasion for invocation of c. 93A remedies. Conventional damages achieve the goal of compensation, particularly because written leases often, as here, provide that the landlord may recover the legal expenses of pursuit, plus interest at the rate of twelve percent.” Atkinson v. Rosenthal, 33 Mass. App. Ct. 219, 226 (1992). This case generally stands for the idea, even if the tenant’s breach is intentional, the tenant will probably not be liable to the landlord under G. L. c. 93A, but still may have to pay the landlord’s attorney’s fees if the lease provides for it, in addition to the rent owed, and interest. Note that it is not recommended that any party, landlord or tenant, breach its contractual obligations.

If the landlord terminates the tenancy, will the tenant still have to pay rent? “It is well settled in the Commonwealth that when a landlord terminates a lease following the default of a tenant, the tenant is obligated to pay the rent due prior to the termination but has no obligation to pay any rent that accrues after the termination unless the lease otherwise provides.” 275 Washington Street Corp. v. Hudson River Int’l, LLC, 465 Mass. 16, 21 (2013).

The tenant will still most likely have financial obligations to the landlord even after the lease is terminated, such as “payments in an amount equal to the rent he had been paying”, or liquidated damages, rent acceleration, or indemnification. See 275 Washington Street Corp., 465 Mass. at 21-22.

Do any viable remedies exist for the commercial tenant? A commercial tenant may be able to terminate the lease based on the landlord’s failure to keep the building in proper repair.

In Wesson v. Leone Enters., Inc., 437 Mass. 708 (2002), the Court adopted the rule of mutually dependent covenants as contained in the Restatement (Second) of Property (Landlord and Tenant) § 7.1 (1977), such that:

“Except to the extent the parties to a lease validly agree otherwise, if the landlord fails to perform a valid promise contained in the lease to do, or to refrain from doing, something . . . and as a consequence thereof, the tenant is deprived of a significant inducement to the making of the lease, and if the landlord does not perform his promise within a reasonable period of time after being requested to do so, the tenant may (1) terminate the lease . . . .” Wesson, 437 Mass. at 720.

Another potential theory the tenant may pursue is based on constructive eviction. It is difficult, however, to prove constructive eviction in the commercial context. The tenant would need to prove that the defects made “the premises untenantable for the purposes for which they were used. See Wesson, 437 Mass. at 715.

A commercial landlord does have a statutory duty to correct unsafe conditions. “[T]he statutory duty of a landlord under G. L. c. 186, § 19, to exercise reasonable care to correct an unsafe condition described in a written notice from a tenant applies to commercial leases.” Bishop v. TES Realty Trust, 459 Mass. 9, 11 (2011).

G. L. c. 186, § 19, states in pertinent part:

“A landlord or lessor of any real estate . . . shall, within a reasonable time following receipt of a written notice from a tenant forwarded by registered or certified mail of an unsafe condition, not caused by the tenant . . . exercise reasonable care to correct the unsafe condition described in said notice . . . . The tenant . . . injured as a result of the failure to correct said unsafe condition within a reasonable time shall have a right of action in tort against the landlord or lessor for damages.”

G. L. c. 186, § 19.

Nevertheless, in Humphrey v. Byron, 447 Mass. 322 (2006), the Court rejected a request to impose a duty on commercial landlords “to exercise reasonable care to assure that others legitimately on the leased premises were not subject to an unreasonable risk of harm.” Humphrey v. Byron, 447 Mass. 322, 323 (2006).

About the author: Robert Nislick is a Massachusetts real estate lawyer. He can be reached at (508) 405-1238, or by e-mail at rob@nislick.com.

What Happens if the Tenant Doesn’t Show Up to Court

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.

Commercial Evictions in Massachusetts

By Robert Nislick

Commercial landlords must be vigilant to make sure that their tenants pay on time and in full.  If a commercial tenant misses a payment or pays late, that is often a sign of bad things to come.  The tenant’s business may be failing.  He has no money coming in, and now he is not paying his rent and other amounts he may owe you.

As a landlord, you need to act fast.  You need to recognize that your tenant’s last payment, may actually be his last payment.  Assume the worst.  Don’t give him too much rope.  Start the eviction process now, so you can return your property to an income generator in the shortest time possible.

Call Robert Nislick, a Massachusetts evictions attorney, to get the ball rolling immediately and to handle all of these steps for you.

I will review your lease terms carefully.  You will need to follow any notice provisions contained in your lease.  Your lease may require you to serve a notice of default prior to sending a notice of termination of tenancy.  Have a constable serve these notices so you can prove that you have properly served any notices on your tenant.

If the lease contains provisions for terminating the lease for nonpayment of rent and any right to cure, then those provisions control.  See G. L. c. 186, § 11A(i).

If not, then a commercial landlord can terminate the lease by at least 14 days notice to quit, and the tenant has the right to cure on or before the day the answer is due.  See G. L. c. 186, § 11A(ii).

After the tenancy terminates, we can serve a summary process summons and complaint.  About two weeks after that, the case gets entered in the district court or superior court.  A trial date is scheduled for about 1.5 weeks after that, but if the tenant serves discovery, the trial would be 3.5 weeks after the entry date.  The appeal deadline is 10 days later.  Then you get an execution, which is the sheet of paper you need to actually have the sheriff move the tenant out.  If the tenant hasn’t already vacated, you can ideally have the sheriff move the tenant out about a week later.

Since the whole process can easily take about three months, you cannot afford to waste any more time.

Contact Robert Nislick, a Massachusetts commercial eviction attorney, today.