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
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
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
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
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
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
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
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).