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.

Rent Escrow During the Massachusetts Eviction Process

By Robert Nislick

Many Massachusetts landlords have encountered a tenant who has exploited the free rent trick. The tenant has fallen behind on the rent. The landlord needs to get paid. The landlord serves a 14-Day Notice to Quit for Nonpayment of Rent. Almost immediately, the tenant calls Boston Inspectional Services Department (ISD), or the local board of health, and complains about defective conditions in the apartment. Perhaps there are certain minor problems at the premises. Maybe the tenant has decided to break things on purpose. Whatever it is, the problems can be fixed and should be fixed by the landlord quickly.

Unfortunately, the tenant still is not paying. The landlord serves a Summary Process (Eviction) Summons and Complaint. The tenant asserts a defense or counterclaim concerning the condition of the premises under G. L. c. 239, § 8A. The tenant is buying time, but not paying rent. The eviction drags on even though the landlord has corrected the conditions to the satisfaction of the health department.

Fortunately, the landlord has a remedy. The Housing Court may issue a rent escrow order pursuant to its inherent equitable authority. The court can order the tenant to set up a new bank account and deposit the rent into that account every month until the case is decided. This gives the landlord some security he may not have had otherwise. At the end of the case, the court can order that some or all of the rent be paid to the landlord. A landlord can try to obtain such an order in a case where it appears the tenant is claiming that he or she is withholding rent with no good reason, and in particular, where the landlord has already remedied any bad conditions at the property. The tenant may lose credibility if she has claimed that she withheld rent due to bad conditions, when in fact she is spending the money on other things. Moreover, the court can enforce such a rent escrow order by holding the tenant in contempt, where there is a clear command and an equally clear and undoubted disobedience of the order.


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.

Can the Landlord Enter the Tenant’s Apartment

By Robert Nislick

Massachusetts landlords frequently ask whether they can enter their tenant’s rental unit during the term of the lease. The landlord may have many valid reasons for wanting to enter the apartment. Oftentimes, a tenant’s lease will be up soon, the landlord has decided not to renew the lease, and the landlord wants to show the unit to prospective renters. Similarly, a landlord might want to sell his rental property, and wants access so that he can take photographs, and schedule showings.

As a landlord, you may have always had a cordial relationship with your tenant. Then you tell him or her that you need to get in so that you can show the apartment. Almost instantly, your relationship changes. Now the tenant has become uncooperative and says that he or she cannot or will not move. Nor will the tenant allow you to show the property. This conduct may torpedo your ability to sell the property, especially if you are under a purchase and sale agreement, and must deliver full possession of the premises free of all tenants and occupants at the time of the delivery of the deed. (See Greater Boston Real Estate Board Standard Form Purchase & Sale Agreement ¶ 9).

A professional tenant may unfairly try to exert power over the landlord in a situation like this. What rights does the landlord have to enter the apartment? What should the landlord know so that he can avoid falling into a trap?

G. L. c. 186, § 15B (1) (a), states:

No lease relating to residential real property shall contain a provision that a lessor may, except to inspect the premises, to make repairs thereto or to show the same to a prospective tenant, purchaser, mortgagee or its agents, enter the premises before the termination date of such lease. A lessor may, however, enter such premises:

(i) in accordance with a court order;

(ii) if the premises appear to have been abandoned by the lessee; or

(iii) to inspect, within the last thirty days of the tenancy or after either party has given notice to the other of intention to terminate the tenancy, the premises for the purpose of determining the amount of damage, if any, to the premises which would be cause for deduction from any security deposit held by the lessor pursuant to this section.

G. L. c. 186, § 15B (1) (a).

“It shall be an unfair and deceptive practice for an owner to: . . . (e) Enter a dwelling unit other than (i) to inspect the premises, or (ii) to make repairs thereto, or (iii) to show the same to a prospective tenant, purchaser, mortgagee or its agents, or (iv) pursuant to a court order, or (v) if the premises appear to have been abandoned by the tenant, or (vi) to inspect, during the last 30 days of the tenancy or after either party has given notice to the other of intention to terminate the tenancy, for the purpose of determining the amount of damage, if any, to the premises which would be cause of reduction from any security deposit held by the owner.”  940 Code Mass. Regs. § 3.17(6)(e).

“When a landlord rents an apartment to a tenant, he gives up his right to enter.  Ordinarily, absent a contractual agreement or the tenant’s permission, the landlord can neither inspect for defects nor make repairs on the rented premises.  See G. L. c. 186, Section 15B (1) (a).”  Young v. Garwacki, 380 Mass. 162, 170 (1980).  “No person shall make an entry into land or tenements except in cases where his entry is allowed by law . . . .”  G. L. c. 184, § 18.

Essentially, it appears that where the lease is silent or where there is no agreement between landlord and tenant, the statute allows entry only in accordance with a court order, if the premises appear to have been abandoned by the lessee, or to inspect, within the last thirty days of the tenancy or after either party has given notice of their intention to terminate the tenancy, for the purpose of determining damage which would be cause to deduct from a security deposit.

Alternatively, the lease may contain a provision such as:  “The Lessor may enter upon the leased premises to make repairs thereto, to inspect the premises, or to show the premises to prospective tenants, purchasers, or mortgagees. The Lessor may also enter upon the said premises if same appear to have been abandoned by the Lessee or as otherwise permitted by law.” (See Greater Boston Real Estate Board Standard Form Apartment Lease (Fixed Term) ¶ 23).

Without a valid lease provision or the tenant’s permission, the statute standing alone does not appear to authorize landlord entry for the sole purpose of showing the premises to prospective tenants, purchasers, or mortgagees. Moreover, it appears that a valid lease provision, the tenant’s permission, or a court order is required in order for the landlord to inspect for defects or to make repairs.

This sounds excessively harsh to the landlord, who may be operating in good faith, but has unexpectedly found himself in a tough spot with his tenant, and especially where the landlord needs to sell the premises or show it to a new renter. The tenant should not act unfairly toward the landlord, and vice versa. Unfortunately, where the tenant has dug in his heels, the landlord may ultimately find that he has no choice but to evict the tenant through summary process, provided he has a basis to do so.


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.

Evicting the Holdover Tenant Who Does Not Leave After Lease Ends

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.

Getting the Rent When Evicting a Tenant for Nonpayment of Rent in Massachusetts

By Robert Nislick

You are a Massachusetts landlord. Your tenant has fallen behind on his or her rent. This puts you in a terrible position. Your profit margin as a landlord is very slim. A nonpaying tenant can lead to financial ruin for a small landlord. How can you get your tenant to pay what he or she owes you?

Don’t waste any more time. Conctact Robert Nislick, a Framingham, Massachusetts eviction attorney, today. It is understandable if you do not want to hire a lawyer. Lawyers are expensive. But keep in mind, your tenant will most likely feel a much greater urgency to pay his rent when he is in the process of being taken to court, than if you do nothing.

Getting sued stinks. Assuming your tenant has a job, he or she may have to take time off from work to show up at court. It is not fun sitting and waiting for hours for your case to be called. Among other things, the mere inconvenience to the tenant may convince him of the need to start paying you the past, present, and future rent that he owes.

Quite often, after you have commenced a summary process action against your tenant, it is appropriate to enter into an agreement for judgment with him or her. This agreement will essentially say that the tenant owes you whatever amount he owes, that he agrees to pay the arrearage according to a certain repayment schedule, that he agrees to pay the rent going forward, and that if he fails to abide by the terms of the agreement, you have the right to ask the court to issue you an execution on four days notice. Moreover, this agreement becomes an order of the court.

Hopefully, your tenant will start paying you again. But if not, you can likely go back to court relatively easily to get the judge to allow you to have the tenant actually removed, without having to start the whole eviction process over again.

Framingham lawyer Robert Nislick has been admitted to practice in Massachusetts since 2005, and handles many types of cases including landlord tenant matters.  For more information, contact Robert Nislick today.