Chapter 7: Forced Removal

Eviction and Rent Increase

Stay Put!

If you answered yes to the question above you may have made a very dangerous and expensive mistake!

Since Massachusetts tenants lost Rent Control and other eviction protections in the mid-1990s, many landlords, who are driven only by profit (whose actions were kept in-check by the protection laws), are now acting as though they are free to intimidate, manipulate and exploit tenants – whatever it takes to make maximum profit. Some people have no shame about throwing families (who have been good tenants) out of their homes or forcing children to live in unsanitary and substandard conditions by threatening a rent increase if they complain – just so that they can make as much money as possible. In fact, this is wide-spread practice.

But don’t be fooled and don’t be taken advantage of. We believe that having a safe, affordable and secure place to live is your right! If you have played by the rules as a tenant, why should you fear being displaced from your own home? And there are still some laws that exist that protect your rights! But many tenants don’t know that, and that is why recently so many people have ended up paying a ridiculously high percentage of their income to rent, and why others have had their lives uprooted by “evictions for profit.”

But we have seen too many of our friends, our neighbors and even ourselves taken advantage of by the ruthless profit-making of others, and we believe it must stop!

Just like with any other civil right, we had to fight for tenant protection laws, they weren’t just given to us. Over the past 30 years, residents and activists in Massachusetts (and especially in Boston) have organized, fought for, and won considerable protections. With the loss of Rent Control in 1994, we lost some critical protections, which helped push Boston and other Massachusetts cities and towns into a severe housing crisis. But, we must continue to fight to win back laws that protect us from unfair evictions and high rent increases. We also need to work to bring back the 80 thousand units of affordable housing that we have lost since 1994, and to preserve their affordability into the future.

When you make the choice to exercise the rights you have, you are supporting the call to make it law that you shouldn’t have to fight so hard to have your rights enforced. You are also sending out a message to landlords that tenants will no longer tolerate being exploited for profit, and you are acting as an example to other tenants to fight for their rights.

This chapter will help you become better acquainted with the rights you have as a tenant in situations of eviction or rent-increase, and with tactics you can do to get your landlord to respect your rights. You have more rights that you think! You can fight an eviction or an arbitrary rent-increase, and you can win!

And remember that it helps enormously to work together with other tenants in your building or neighborhood who are in the same situation; there is power in numbers. Your best chance for success in fighting for your housing rights lies in coming together to support each other and to improve conditions for everyone. Your landlord stands a good chance if you’re isolated. Don’t take it on alone! Organize!

Learn your rights, organize, exercise your rights, and teach them to others!

Eviction

The following section is in the order of the actual eviction process.

1. Don’t Be Intimidated!

Above all, it is important to know that nobody but a judge can legally tell you to move out of your apartment! Don’t be intimidated by your landlord or even his lawyer. There is a long, strict process that needs to be followed before you will need to move, if at all. Follow the advice below, and you will make the process much easier on yourself, and may even avoid eviction all together.

2. ACT NOW: Make Contacts, Organize and Negotiate

When your landlord gives you notice that he plans to evict you or simply wants you to leave, this should prompt you to get in touch with a community organization, like City Life, that works to support tenants in difficult situations. They can advise and support you at each step of the eviction process and take some of the burden off of you. They can help to get you in contact with a lawyer who can take your case at no or very little cost to you, and may even be able to work in a way that would prevent the eviction from happening at all. But don’t wait! Make contacts and get help at the first sign of trouble. If you wait too long, there might not be anything anyone can do to help you.

Your next step should be to talk with the other tenants in your building, to see if they are also in a bad situation with the landlord. A community organization may be able to help you with this. You may be able to support each other, or even fight the case together. The landlord and the court will take you more seriously if they know that you have organized with other tenants and a neighborhood group.

There is power in numbers.

Once you have started to organize with other tenants or advocates, a tactic that we often advise is to write a letter in response to your landlord’s notice. Let him know that you do not plan on moving, and that you encourage him to negotiate with you. You may be advised to include some other specific things in the letter as a bargaining chip, especially if there are bad conditions in your apartment that should have been dealt with by your landlord. (Refer to chapter 5, Bad or Unhealthy Conditions in your Apartment.) If your landlord agrees to negotiate with you, great! Remember to remain in contact with, and even be accompanied by an advocate from the neighborhood group or a lawyer during the negotiations. Do not sign any papers or contracts without consulting your advocate or a lawyer first. If the landlord refuses to negotiate, he will have to follow the process below in order to begin to try to legally evict you. If he does not follow this process properly, you will be able to use that as a good defense against the eviction.

*** Keep Records Now, Avoid Problems Later *** Keep a log or journal of everything that happens during this process, and keep it in a very safe place. Include all conversation between you and your landlord, jot down when repairs are made, and other significant events. Be sure to include the dates of when things happen. Also, make copies of ALL documents that pass between you and your landlord, as well as all inspection reports, repair receipts, and letters that may have anything to do with the situation. If your landlord makes any promises, make sure to get them in writing; tell him to give you a letter that states the promise. If you should have to go to court, having copies of documents and a dated journal of events will help your case enormously!

3. “Notice to Quit” and “Summary Process and Complaint”

The very first step your landlord must take in order to legally try to evict you is to send you a document called a Notice to Quit. This may be scary at first, but really it is no more than a formal notice to let you know that he has begun the process. Some landlords may depend on the official-ness of this form to scare tenants into moving out immediately. But don’t be scared, there is much more that a landlord will have to do to try to evict a tenant who chooses to resist the eviction. The law gives you the right to fight, in the meantime, giving yourself time to find an other appropriate apartment for you and/or your family.

There are two main types of Notices to Quit: a general “30 day Notice to Quit”; and a “14 day Notice to Quit”, which can only be used if the landlord claims you owe him rent payment/s. (There is also a 7-day Notice to Quit that can be able to be used for tenants in rooming houses, and in other very rare situations.)

If your landlord raises your rent and you refuse to pay the increase but continue to pay the original rent, only the 30 Notice to Quit can legally be used. This document has to be written in a very specific way, otherwise it is useless and dismissable. (Your advocate or lawyer can determine this for you.) The numbers given mean that you have 30 or 14 days to voluntarily move out, and that no sooner than the days specified can the landlord proceed in the eviction process. When the amount of days have passed (and no sooner), he can send you a Summary Process and Complaint, which does nothing more than tell you what day to appear in court to fight your case. Your court date will be at least 2 weeks (and usually more) from the day you were sent the Summary Process and Complaint.

4. Get Legal Representation – this can be easier and less expensive than you think…

We encourage people to fight their eviction case in court whether they are represented by a lawyer or are just being advised by a tenants’ advocate. Even if you don’t win the case, you will almost certainly be granted time to remain in your apartment long enough to find another appropriate apartment (sometimes up to 6 months; or up to 1 year if you are elderly or disabled). Plus, simply by going through the legal process, you give yourself at least 2-3 months (or more) — the usual span of the process — to stay in your apartment. And you increase your chances of winning or getting more time if you are represented by a lawyer.

There are many different ways of getting a lawyer who specializes in housing justice to represent you, no matter what your income or immigration status is. There are legal service centers in many parts of Massachusetts that have housing departments. If you are income-eligible, a “pro-bono” lawyer from a legal service center will take your case, without charging you anything, even if you win the case. If you are not income-eligible for a pro-bono lawyer, there are also some private “community-based” lawyers (who are dedicated to working with low-income tenants) who will only charge you if you win the case. And what they charge is much less than most other private lawyers. This usually means that if you win money from your landlord, they will take a percentage of what you win. If you win the case, but don’t win any money, they might charge you a low-fee. You and the lawyer will decide on this when s/he first takes your case. If you are unable to pay your lawyer bill, you may be able to get assistance from funds that exist to help low-income tenants fight unjust evictions.

If you want legal representation, you must find a lawyer well in advance! Do Not Wait! Some legal service centers need up to three weeks to schedule your first appointment. If you wait too long into the eviction process before you get a lawyer, there may be nothing that s/he can do to help you.

But if you aren’t able to find or afford a lawyer that can take your case, stay in touch with a tenant advocate. While advocates cannot formally represent you in court, they can direct and advise you, and help you to organize with other tenants and even negotiate with your landlord.

A week before your actual case, you should call the courthouse to make sure that the case has been formally filed by your landlord and is still on.

It is advised to have your case in Housing Court, where the judges are more familiar with eviction cases. There is only one Housing Court in the Boston area which will hear cases from the following towns: Allston, Boston, Brighton, Charlestown, Dorchester, East Boston, Hyde Park, Jamaica Plain, Mattapan, Quincy, Roslindale, Roxbury, South Boston, and West Roxbury. If your summons is to District Court, it is easy to transfer to Housing Court. Simply go to the courthouse where your case is scheduled to be held, at least 2 days before your trial. There you can get a Transfer Form, fill it out and turn it in. Your hearing will then be postpones until you receive a notice of when to appear in housing court.

5. “Discovery”

Tenants can choose to serve their landlord with Discovery to get more information from their landlord in order to help their own case. Discovery must be filed on the Monday before your court date. This means that it must be brought to the courthouse, and a copy must be delivered, by hand or Federal Express/UPS/etc, to your landlord. This automatically postpones your court date for 2 extra weeks. Discovery is a formal request to your landlord for documents, reports, receipts, and to answer questions that pertain to your case. If you choose to do this, it is very helpful to allow a lawyer or advocate to do it with you, because if anything is left out, you will not have a second chance to do it! The landlord must answer your Discovery within 10 days of receiving it. If he doesn’t, or it is left incomplete, the case may be put on hold and further postponed until it is complete. If this happens, you will need to follow further steps on which your lawyer can advise you.

6. Your Defense, Counterclaim, and “Answer”

Your lawyer or advocate can help you prepare your case for your trial and help you work out on what yourdefense will be. In some cases, tenants also raisecounterclaims against their landlord. This means that not only is your landlord “taking you to court” to evict you, but you are “taking him to court” for something/s illegal that he has done, during the same trial. Your lawyer or advocate can help you evaluate whether your defense should also be a counterclaim. You are not limited to having only one defense or counterclaim, you can have various claims, if they apply.

When you determine your defense or counterclaim, you must fill out an Answer form, with the assistance of your advocate or lawyer. The Answer is a written response from you stating why you should not be evicted. You will complete a section on what your defenses and/or counterclaims are, as well as a section on what you want the court to do, whether it be to have the landlord pay you for the months you lived in substandard conditions, or give you 6 months to remain in the apartment, etc. This also must be brought to the courthouse on the Monday before your (original) trial date, along with your Discovery; and a copy must be brought or FedEx-ed to your landlord. Keep a copy for yourself.

Some Common Defenses and/or Counterclaims

The following are some common defenses and counterclaims, but there are many more.

• Bad Conditions in the Apartment

  Because so many tenants live in apartments that are in substandard condition, this seems to be the most common and effective defense. In some cases, your landlord may even owe you money because of the bad conditions you (and/or your small children) have had to live in.

  If there are bad conditions in your home that violate any of the laws that protect tenants from living in substandard conditions, then your landlord will have to make all of the necessary repairs before he can try to evict you again. You should be able to prove that there are bad conditions with either an inspector’s report, pictures, testimony from you and/or a neighbor, etc. That would be your defense.

  But, in some cases you can also bring a counterclaim against your landlord during your eviction trial. If there are conditions in your home that break the laws, and your landlord has refused to make the repairs even though he has had knowledge of the conditions, then you can raise a claim against him and even win. Not only will the eviction be postponed until your landlord completes the repairs, but the judge is also likely to order your landlord to pay you back for some or all of the rent you paid while living in bad, law-breaking conditions.

  Raising a counterclaim is also a good “bargaining chip.” When your landlord gets knowledge that you will be raising a claim against him and that he may owe you money, he may just decide to try to negotiate with you (or your lawyer) outside of court. But remember that if you are unsatisfied in any way with what your landlord offers you in the negotiation and feel that you could get a better deal in court (or your lawyer or advocate believes you will get a better settlement before a judge), GO TO COURT rather than sign anything!

  If you are considering using Bad Conditions as a defense or counterclaim against eviction, be sure to read chapter 5, Bad or Unhealthy Conditions in Your Apartment.

• Retaliation

  If you feel that your landlord is evicting you in retaliation for something you did that you feel you had the right to do, you can fight it! It is illegal for your landlord to evict you because you withheld rent due to bad conditions*, or because you had an inspection, or because you reported bad conditions to a public agency. It is also illegal for him to evict you because you took part in a tenants meeting, union or organization, or because you brought a case against him.

  (*In order to legally withhold rent, there are certain conditions that must be met – refer to chapter 5, Bad or Unhealthy Conditions in your Apartment)

• Discrimination

  If your landlord is trying to evict you because of your race, gender, sexual orientation, religion, age, national origin, immigration status, marital status, your source of income, because you are a veteran, because you have children, or because you are disabled, it is illegal. Nor can you be discriminated against if you are unemployed, receive welfare benefits or any other form of public or rental assistance. Also, your landlord cannot all of a sudden decide that he no longer wants to rent to Section 8 recipients; that is considered discrimination and is illegal!

  If you have children, you cannot be legally evicted because there are lead (paint) hazards in the apartment. It is your landlord’s responsibility to delead, or be liable for the consequences of refusing to delead.

  If you feel that you are being discriminated against, call the Massachusetts Commission Against Discrimination (MCAD), at (617) 727-3990. By doing this, you allow the MCAD to investigate the situation and file an independent claim against your landlord. While it is separate from your eviction case, it may help your defense/counterclaim by stressing the seriousness of the discrimination claim.

• Harassment

  If your landlord has harassed you by threatening to move you or your belongings out by force; by locking you out of your apartment; by shutting off the water, lights, heat, gas, or telephone; by purposely not making necessary repairs; by hitting or threatening you; by sexually harassing you; or by harassing you in any other way (like repeatedly calling to harass you about your case), you have a very important defense!

  Remember, if you have been harassed on a personal or physical level by your landlord, you also have the option to file criminal charges, in addition to filing a counterclaim in your (civil) eviction case. Harassment is criminal behavior and is punishable through a criminal lawsuit!

• Security Deposit or Last Month’s Rent

  If your landlord has violated the laws surrounding Security Deposits and Last Month’s Rent, you can claim that in your eviction trial. You may even be owed 3 times the amount of your security deposit. Refer to chapter 4, Security Deposit and Last Month’s Rent, for specific information.

• Your Landlord Did Not Terminate Your Tenancy Properly

  If your landlord didn’t follow the above eviction process correctly, you can use that as a defense. If the proper timeline wasn’t followed or the proper documents weren’t used (or were incomplete or inconsistent), then the trial cannot proceed. Your landlord will have to start again from the very beginning with a new Notice to Quit.

• Your Landlord is Evicting you to sell your Apartment as a Condominiums

  In 1999, tenant activists fought and won to have an ordinance passed in Boston that would strengthen the protections of tenants facing eviction due to condo-conversion in their buildings. If you are being evicted because your landlord wants to sell your apartment as a condo, you may have up to 5 years to stay in your apartment before you must leave.
  Using this ordinance gives you more bargaining power with your landlord. Once your landlord knows that you may be protected by this new ordinance, he may just decide to drop the case and negotiate with you.

7. In Court

Don’t go to court alone. It is often intimidating and hard to understand what is going on. Make sure that your advocate or at least a friend can go along if you don’t have a lawyer.

Request (and wait for) Translation, if you need it. If you don’t speak English very well, you can request that the court provide you with a translator. And your case should not start until that translator arrives. Don’t let anyone rush you or harass you into starting the case before the translator arrives. If you don’t understand what is going on or are unable to tell your side of the story because you don’t have translation, then there is no way to have a fair trial! Your landlord and his lawyer can WAIT, so that you can have a fair trial.

Bring all documents that relate in any way to the case, including all legal documents, letters, receipts, inspection reports, testimony from neighbors, etc. Also, if there are bad conditions or code-violations in the housebring pictures to show the judge.

Don’t be afraid to speak up! The fact is that almost everyone is nervous in court. Don’t let your nerves prevent you from telling your side of the story, even if you need to do this through a translator. Too many times tenants give up things because they don’t speak up at trial or in mediation. Don’t let this happen to you. Don’t be rushed or hushed by anyone. Make sure the judge or mediator knows your side of the story!

If your trial is at Boston Housing Court and somehow you end up going to court without legal representation or an advocate, you can go over your case with a tenants’ lawyer before your trial. On Thursday mornings, when housing cases are heard, there are often tenant and landlord lawyers on duty for free advice. But, in order to take advantage of this you must get to court early in the morning, like at 8am or so.

What will happen when you go to Housing Court:

The atmosphere in Housing Court can be quite overwhelming as there are usually a lot of people there, and it may be hard to understand what is going on at all times. All cases in Housing Court are about housing issues, usually between landlords and tenants. You won’t see any handcuffs or a jury, usually. This brief section is to prepare you so that you know what to expect on your court date.

When you first get to the courthouse at 9am (or earlier), you and a whole bunch of other people will be told to go to a room, in which a clerk will read off the names of all the cases. When you hear your name, you must respond loudly. If no one answers, the case will be “defaulted”, meaning that it will be thrown out. If the “defendant” (usually the tenant) doesn’t show up, then the “plaintiff” (usually the landlord) automatically wins the case; and if the plaintiff doesn’t show up, then the case is dismissed.

Once both parties answer, the clerk will ask you out loud if you want your case to be heard by a judge, or if you want to go to mediation. (Keep in mind that tenants’ advocates usually advise against court-mediations, especially if you go to court alone, without a lawyer or advocate.) For mediation to be used, both parties have to agree to it, otherwise if one party still wants to see a judge, then a judge will hear the case! If mediation is chosen, then you will be told to go to a certain room where a clerk (not an advocate) will act as mediator.

If your case is to be heard by a judge, then you will either stay in that courtroom or be directed to another courtroom, along with a whole bunch of other people, to wait for the judge to come in. When the judge arrives, each case will be brought up to the judge one after the other. Sometimes the judge will actually hear the whole case, and sometimes s/he will just hear “motions.” These are proposals that one side or the other makes to the judge; like, for example “motions” to dismiss or postpone the case. Based on the reasons for the motions, they are granted or rejected.

8. Court Mediation and Agreements to Judgment – we advise against these!

When you go to Housing Court, you will be asked if you want to try to make an agreement with you landlord in a process called mediation, as opposed to fighting your case formally in court, before a judge. This is yourchoice. Tenants’ advocates generally advise against court mediations (for tenants who are not represented by a lawyer) because you give up many of the rights that you would have in a trial. Sometimes tenants become intimidated or scared by the idea of court, but in most cases you have more on your side than you think; and you give up the opportunity to fully fight your case when you choose to go to mediation. You also often give up your right to challenge (appeal) the decision, as well as your right to ask to be granted more time to remain in the apartment before you must move, when you chose mediation over a trial. Mediators are not tenants’ advocates; in fact they seem to side most often with landlords.

Even if you go to court alone, without any representation, we would advise you to have your case heard by a judge over going to mediation. At least after a judge’s hearing, you can appeal the decision if you so choose.

Read any agreement very carefully, and review it with your advocate or a lawyer before you decide to sign it! This is very important, because you give up many rights (including the right to a trial) once your sign an Agreement to Judgment, which is the agreement that you sign in court mediation. Even with Agreements to Judgment, don’t assume that it says what you agreed to verbally during the mediation. If you are alone in mediation and you feel pressured at any time to sign a bad agreement, ask to see a judge!

DON’T SIGN ANY AGREEMENT WITHOUT THE ADVICE OF A TENANTS’ ADVOCATE OR A LAWYER WHO SPECIALIZES IN TENANTS RIGHTS!

9. After Your Trial – Judgment, “Appeal”, and “Execution”

The judgment is entered with the clerk of the court on the Friday after the trial. If you lose the case you may appealthe case and request a new trial. To appeal, you must file a Notice to Appeal within 10 days of the date the judgment is entered. An appeal fee is usually required, but can be waived if you cannot afford it.

After your appeal, if the judge decides again that your landlord has the right to evict, s/he will order anexecution. This is the paper your landlord needs to present to you in order to legally evict you. The execution will be ready for the landlord to pick up 10 days after the judgment is entered, and the landlord may use the execution anytime within 3 months. After the 3 months, it is void. You must receive written notice of the date and time the execution will be served at least 48 hours in advance. When the execution is served (either by a constable or registered mail), then you must leave your apartment.

If the judge decides to give you some time to remain in the apartment before your landlord can evict you (for example, 4 months) then the court will make the execution available to your landlord in 4 months, and the rest of the above procedure will then apply.

But… if you are evicted for non-payment of rent, and your landlord accepts the payments from you that bring you up-to-date (without reservation*), then your landlord cannot use the execution and must return it to the court. (*By reservation, we mean that if he accepts your payment and writes on the check “for use in occupancy only”, then he can still use the execution. By writing “for use in occupancy only” on the back of the check, he acknowledges that the check is for back-pay, but the eviction still stands. If he doesn’t write it on the check and it is not specified anywhere else, you then become a tenant at will. He would have to start the eviction process over if he still wanted to evict you.)

10. “Stay of Execution” – request more time to remain in the apartment

If the court judgment was to evict you (whether with time to remain in the apartment or not) and you still need additional time before you must move out (either because you cannot find a new apartment or because of other difficult circumstances), you may be able to convince a judge to grant you even more time to remain in your apartment. This is called a Stay of Execution, and it is usually granted only if the eviction is at “no fault of your own”, that is that the judge agrees that you didn’t provoke the eviction. When your time to remain in the apartment comes close to running out (or if you weren’t given any time at all) getting a Stay of Execution can give you up to an additional 6 months to stay in the apartment. If you are elderly or disabled you can request an additional stay of up to 1 year.

Rent Increase

Don’t Panic! Don’t Move!

If your landlord requests a rent increase that you cannot afford, don’t get scared! In any case, you won’t have to pay it immediately, and depending on your particular situation you may have quite a bit of time to remain in your home at the original rent if you ACT immediately. If you don’t pay the increase, the only action your landlord can take is to try to evict you, and as you’ve read above, this is not a quick process. In fact, if there are bad conditions or code-violations in your apartment, you may find out through an eviction trial that your landlord may oweyou money!

Because Massachusetts’s tenants lost Rent Control in 1994, no longer are there strict restrictions on how much landlords can request to increase rents in any given period. But, tenants still have the right to refuse to pay a rent increase, and fight for what they believe is just. Stay put and organize other tenants in your building who may also have gotten an arbitrary rent increase that they can’t afford! If you need help doing this, call a tenants’ advocacy or community organization to help you and your neighbors get organized.

…And if there were other people in your building or neighborhood who were also getting rent-increases that they also couldn’t afford, coming together and forming a “tenant association” would help enormously in many different ways. Just imagine if the landlord in the scenario above had to double or triple his lawyer fees to also take his other tenants to court, while losing even more money because of the withheld rent from the other tenants. Your bargaining power with the landlord would increase hugely! It really pays off to form a “tenant association” and for tenants to support each other!

If you have a lease, your rent cannot be increased until your lease expires, and then only with proper notice. If you do not have a lease, in order to attempt to raise your rent, your landlord must notify you in writing at least 30 days in advance. When your landlord increases your rent to an amount that you cannot afford, this should prompt you to talk with your neighbors and possibly form a tenant association, and get in touch with a tenants’ advocate for advice and assistance. And if your situation turns out similar to the above scenario, you should be accompanied or advised by an advocate or lawyer during the negotiations, and refer to the section above on Eviction.