Lawyers Journal

Michael J. Moloney practices at the Justice Center of Southeast Massachusetts, a subsidiary of South Coastal Counties Legal Services Inc. in Brockton. A Worcester native, he is the Worcester County director for the MBA 's Young Lawyers Division. Admitted to practice in Massachusetts, Connecticut and U.S. District Court for Massachusetts, he earned his JD from Roger Williams University School of Law and bachelor's from Sacred Heart University.

One of the most frustrating things an attorney can encounter is having a case that you have put so much effort into dismissed on a procedural error. New attorneys, especially those who are unfamiliar with a particular field of law, can sympathize with this sentiment.

While the procedural motions of dismissals are commonplace in every legal category, knowing the procedural tricks in a summary process case can be a useful tool for a young attorney who is representing either a landlord or a tenant. Of all the procedural motions to dismiss that are seen in housing court, improper terminations of tenancies are the most prevalent.

In a residential summary process case in Massachusetts, a landlord must first serve a notice to quit on the tenant. The basic laws governing the notice to quit can be found in M.G.L. c. 186 § 11; 12. The notice must be timely, definite, unequivocal, and stated with particularity, so that it can be reasonably understood.

Additionally, the landlord must prove that the service of process upon the tenant was timely. This can be done by showing that the landlord delivered the tenant the notice to quit and that there was receipt of the notice by the tenant in a timely fashion. If careful attention is not paid to this requirement this can result in a premature dismissal of the case.

There are essentially three types of termination of tenancies in residential premises. The first is a non-payment of rent termination, where the tenant must be served with a 14-day notice, regardless if it is an "at will tenancy," or governed by a lease. The second type is for a cause termination where the tenant has a lease, whereby the rental period notice cannot be less than 30 days.

For example, if a landlord serves upon a tenant a 30-day notice to quit on Jan. 29, and the lease is due to expire on Feb. 15, the tenant is entitled to a full 30-day notice to quit the premises. The third type of termination occurs in the absence of a specific agreement as to rent day; it is deemed to be the last day of the month. When the notice does not direct the tenant to vacate on a rent day, the terms of the notice to quit are not timely and the case can be dismissed.

In some unique situations, the tenants have never paid rent, nor have they paid the landlord for their use and occupancy of the premises. This is especially common when the landlord and the tenant are family members. In these isolated situations their tenancy is governed by M.G.L. c 186 § 12, which provides in pertinent part: "Estates at will may be determined by either party by three months' notice in writing for that purpose given to the other party; and, if the rent reserved is payable at periods less than three months, the time of such notice shall be sufficient if it is equal to the interval between the days of payment or thirty days, whichever is longer…"

Therefore, when the tenants have never paid rent or use and occupancy, and there is no defined tenancy period, the landlord is required to serve tenants with a 90-day notice to quit instead of a 30 or a 14-day notice to quit. Not paying particularly close attention to these situations can bring calamitous consequences for your practice, and your client.

Further, if a tenant is being evicted for non-payment of rent, the tenant is allowed to prevent the eviction if they cure the non-payment. Moreover, a tenant without a lease has the right to cure the non-payment within 10 days after receipt of the notice, provided that they have not received a notice to quit for non-payment within the last twelve months. If the landlord fails to give tenant notice of these curative rights, the tenant can cure the non-payment up to the answer date; however, this does not otherwise affect the validity of the notice. Subsequently, a tenant under a lease has the right to cure the non-payment up to the answer date, and is not limited in the number of times they can cure.

While drafting notices to quit for clients, and as a meticulous attorney, one must look out for whether the notice has the wrong statutory notice period, the tenancy was terminated on the wrong day, a 14-day notice to quit was served (especially when the non-payment is for a failure to pay an unaccepted rent increase), and when the notice to quit fails to state a reason when one is required. Further, Rule 2(d) as stated in the Uniform Summary Process guide requires that the Plaintiff state the reason(s) for eviction on the Summons and Complaint with sufficient particularity and completeness because it enables a defendant to understand the reasons for the requested eviction, and the facts underlying those reasons.

Sometimes the landlord is attempting to evict the tenant for grounds that were not previously stated in the notice to quit. In this case, the landlord is confined to the grounds assigned in his notice to quit. It is extremely important for the landlord to be certain that the reason for the eviction is the same reason expressed in the notice to quit U.S.P.R. 2(d).¹

In Massachusetts, some landlords are going about serving the tenants in the wrong way. It has been common practice for many landlords to serve the tenant with a 14-day notice to quit concurrent with a 30-day notice to quit. This practice is improper. It has long been the law in this Commonwealth that a landlord "may not blow hot and blow cold, and must choose one position and stick with it, whereby tenants are entitled under state law to unequivocal notices from their landlords."²

By sending these two notices to quit simultaneously, or within days apart, a landlord sends a mixed message to the tenant about the status of his or her tenancy, the timing of its termination, and whether there were steps he or she could take to reinstate the tenancy.³ In this instance, the two notices cannot be read consistently with one another, as they deprive the tenant of his or her statutory cure rights to reinstate the tenancy. As the landlord's notice indicates, he will proceed with eviction based on the first notice, even if tenant pays the outstanding rent by the curative deadlines. This practice should be discouraged by landlords, and thus challenged by tenants.

When a tenant or the tenant's attorney effectively argues one of these procedural motions to dismiss, the adjudication will not be on the merits, thereby leaving the landlord to re-commence suite. Thus the tenant's only value is one of a transactional time of delay, given that the landlord must start the summary process anew.

Many times in a summary process case, the tenant's greatest gift and desire is to be given more time in order to find suitable housing accommodations. Therefore, utilizing these procedural defenses as a tenant's attorney is a valuable tool, and is in the best interests of your client. Accordingly, the gift of time is also very important to both the landlord and the landlord's attorney. Mastering these rules will effectively avoid refilling out forms and wasting precious time.

 

¹See Roseman v. Day, 345 Mass. 93, 98  (1962); Strycharski v. Spillane, 320 Mass. 382, 384-85  (1946); Flaschner Judicial Institute, Residential Summary Process Bench Book (1991) citing Tuttle v. Bean, 54 Mass. 275 (1847).  See also Pine Grove Village, Inc. v. Cardullo, 2001 Mass. App. Div. 234, 235(holding that it is incumbent upon owner to establish that tenant committed those violations of the terms of the lease specifically identified and alleged in the notice to quit).

²Maguire v. Haddad,325 Mass. 590, 593 (1950).

³See Thomas v. Pelletier, Hampden Housing Court, SP2006-S87 (Abrash kin, J., May 23, 1987).