Evicting a Problem Tenant

By: Howard S. Goldman and Eric T. Thulin

Most residential landlord/tenant relationships begin and end without any problems or concerns. However, when landlords find themselves dealing with a tenant who continuously violates the terms and conditions of the tenancy, the landlord often feels like they are without recourse. Massachusetts is an extremely tenant-friendly state with a long history of statutes and case precedent which has enhanced the rights of tenants and made it very difficult for landlords to sustain and succeed on eviction actions. To evict a tenant, the landlord must proceed cautiously and carefully to avoid traps for the unwary.

Landlords have numerous reasons why they seek to evict a tenant. Most commonly, it is for unpaid rent. Other evictions are referred to as “cause-based evictions” and they usually are brought for noise violations, unauthorized smoking, or allowing unauthorized occupants. Advances in society and technology have also introduced new issues and complications for landlords such as the legalization of marijuana, invention of electronic cigarettes, and online subletting through websites such as Airbnb. All of these have increased the difficulties that landlords have to deal with and have posed legitimate questions as to what the rights of the landlords are.

For a landlord who seeks to evict a tenant, there are very specific procedures which must be followed. Failure to comply with all procedural requirements can result in the dismissal of an action on procedural grounds even if the merits of the landlord’s action are valid. Before an eviction action can be brought, the landlord must first terminate the tenant’s tenancy in writing. Each type of eviction, whether it be for nonpayment of rent, cause-based reasons, or termination of a tenancy-at-will, requires a specific, written notice of termination. The lease will control the notice period required for nonpayment of rent and cause-based terminations and most will require a 14 day and 30 day period, respectively. It is essential that the notice of termination complies with Massachusetts law, regardless of the underlying reason of termination. Failure by a landlord to give proper written notice is one of the most common grounds for dismissal. Drafting a notice of termination without defect is a harrowing task and should be done by an experienced attorney.

Once the requisite notice has been drafted and properly served, and if the tenant has not voluntarily vacated after the allotted time period has expired, then, and only then, is the tenancy properly “terminated.” It is at this point where the landlord has the right to commence a Summary Process action. The landlord must take caution when preparing and filing an eviction action. An original Summary Process Summons and Complaint must be obtained from the Court where the eviction action will be filed. An eviction action can be filed in the Housing Court or the District Court. The Housing Court has jurisdiction over all eviction cases and, although it has recently expanded, is still not available for all towns located within the Commonwealth. The District Court can hear all eviction actions and has complete jurisdiction; however, often times the judges in District Courts are not as familiar with summary process law as those in the Housing Court.

Once the eviction action has been filed with the court, tenants have the ability to file counterclaims against the landlord opposing or challenging the reasons for eviction. This can include retaliation, discrimination, lead paint violation, security deposit violation, and many others. The tenant can also seek discovery including document requests which can prove to be a time-consuming task. In addition, the tenant can propound requests for admissions or interrogatories which need to be answered under the pains and penalties of perjury. All of these are typically done by checking boxes on a form and need to be responded to by the landlord within 10 days of receipt. Answering any counterclaims and responding to discovery requests is a difficult and burdensome task for a landlord. A landlord should consult with an attorney when dealing with these to avoid costly mistakes.

The owner of the property in question is the only person who has standing to bring an eviction action. Last year, the state’s highest court issued a bright line rule in Rental Property Management Services & another v. Loretta Hatcher that only the owner of record has the ability to commence and proceed in an eviction action against a tenant. This is significant for landlords who employ the services of a professional management company to oversee and manage all aspects of the building. This means that a representative from a property management company, whether it be the Property Manager or Assistant Property Manager, cannot stand in the shoes of the record owner and litigate the Summary Process action.

Since the Hatcher case was handed down, all landlords seeking to evict a tenant through a Summary Process action must do so by commencing the action by and through the owner of the property. The Court went so far as to hold that failure to clearly establish and demonstrate the plaintiff is the owner of the property requires the judge presiding over the matter to make an inquiry into the identity of the owner of the property and dismiss the case if the Judge finds the Plaintiff lacks the requisite standing (i.e., that the plaintiff is not the owner of the property).

If you are a landlord and are seeking to evict a tenant, contact our office to speak with an attorney. Our firm has experienced litigators familiar with Summary Process evictions and can assist you in avoiding pitfalls to save money and help get the result you desire.

About the Authors

Attorney Howard S. Goldman is the founding partner of the law firm of Goldman & Pease LLC, 160 Gould Street, Needham, Massachusetts 02494, (781) 292-1080. Mr. Goldman concentrates his practice in the areas of real estate, finance, and civil litigation, where he has zealously represented owners of property, property managers, lending institutions, developers, and contractors for more than thirty-five years. He has extensive experience in Summary Process and in the Housing Courts and District Courts throughout the Commonwealth. Attorney Goldman is also an active member of the Massachusetts, Norfolk, and Rhode Island Bar Associations in his field and is also an active member of CAI and IREM, where he frequently lectures and writes columns affecting the real estate and finance industries. Mr. Goldman serves as a member of the Zoning Board of Appeals for the Town of Needham and as a court appointed mediator at the Boston Municipal Court and as a pro bono advocate at Federal District Court mediations.

Associate Eric T. Thulin assisted in drafting this article and focuses his practice in the areas of real estate litigation, including landlord/tenant matters, and business litigation involving complex business disputes.

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