- Serving/Filing a Defective Notice to Quit or /Serving/Filing the Wrong Type of Notice
There are many different types and forms of notices that can be served to terminate a tenant’s tenancy depending on the facts of the case, the type of tenancy, whether or not the tenant receives a subsidy, the requirements under the Lease (if any), and state and federal laws. If the notice to quit is missing certain statutory language, does not contain the proper forms/notices/enclosures, or provides an incorrect notice period, there is a high probability that the landlord will lose the case at trial if not before.
- Serving/Entering the Summary Process Action Before Expiration of the Notice to Quit
If the summary process summons and complaint is served or filed before the expiration of the notice to quit, then the tenant has a strong chance of getting the case dismissed if the issue is raised at or before trial. Even if the tenant does not raise the issue, the court may not issue a judgment in the landlord’s favor if the error is caught by the judge at trial or by court staff when reviewing the pleadings. It is always unfortunate from a landlord’s perspective to have wasted time and money on a summary process action that is doomed from the beginning.
- Incorrect Named Parties on Summary Process Summons and Complaint
All individuals over the age of 18 who occupy the premises must be named on the summary process summons and complaint and return of service (whether or not they are named in the lease), and no parties under 18 can be named. In addition, the name of the landlord as plaintiff is important. It generally must match the name of the record owner of the property. Furthermore, if the owner of the leased premises is business entity such as an LLC or corporation, an attorney must represent them. Any attempt by a nonlawyer to legally represent a business entity at a summary process in Massachusetts action will fail.
- Filing an Action When the Landlord is in Violation of the Security Deposit Laws or When There are Existing Bad Conditions at the Leased Premises
In a no-fault or nonpayment action, the tenant will win and retain possession at trial if they can show the judge that the landlord owes the tenant more money than the tenant owes the landlord. Security deposit violations can lead to damages of up to triple the original amount of the security deposit, resulting in a loss for the landlord regarding possession where the damages of violating the security deposit laws are greater than the amount of rent owed to the landlord. Similarly, violations of the state sanitary code can diminish the value of the leased premises in the eyes of the court, as well as lead to damages, making it more challenging for the landlord to secure a victory at trial.
- Serving and Filing a No-Fault Action When There are Other Grounds for Eviction
As stated above, if at trial, a judge determines that the landlord owes more money to the tenant than the tenant owes to the landlord, the landlord loses. Some landlords believe that filing a no-fault summary process action will be easier because they only must prove the tenant received the notice to quit in order to establish the prima facie case. However, bringing a no-fault action is not without its disadvantages. If the tenant files defenses and/or counterclaims and the judge determines money is owed to tenant by landlord, the landlord’s prospects of winning are greatly reduced. A landlord is limited to the allegations contained within the notice to quit. A no-fault notice to quit contains no allegations of lease violations or wrongdoing. Where the tenant is not making payments or is violating other terms of the lease, an appropriate notice containing the specific allegations should be served and filed.
- Not Hiring an Experienced Massachusetts Landlord/Tenant Law Attorney
Summary process actions are surprisingly complex and technical. Even some attorneys struggle with conforming to the specific technical requirements at all phases of the summary process action, from the serving of the original notice, all the way up through trial and appeals. Having an attorney on the landlord’s side who specializes in Landlord/Tenant law and keeps abreast of the frequent rule changes and standing orders of the Housing Court goes a long way toward saving the landlord time and money when being faced with the prospect of litigation.
This blog is for informational purposes only. It should not be considered legal advice. All those who read this blog should seek the advice of a professional before taking action based upon any information provided herein.
If you have questions or would like to discuss these matters, please contact Drayton Law at 508-618-7309.
