Post-judgment issues in Massachusetts landlord-tenant matters

Issue April 2014 April 2014 By Michael J. Moloney

Young lawyer practice in the later stages of a summary process case

Summary process proceedings, though designed to move quickly through the judicial process, can sometimes consist of substantial post-judgment litigation by attorneys practicing in landlord-tenant actions. New attorneys, especially those unfamiliar with housing law, can benefit from an understanding of these matters, as the efficient use of time is crucial to both sides in a residential summary process case. While these post-trial issues are commonplace in other civil categories, knowing the housing law challenges can be a useful tool for any young attorney who is representing either a landlord or a tenant.

M.G.L. c. 239, § 10 provides that when the parties enter into an agreement for judgment, no execution shall issue unless the plaintiff first brings a motion for the issuance of the execution and the court, after a hearing, determines that the tenant is in "substantial violation" of a material term or condition of the agreement for judgment. Thus the question is: Was there a substantial violation of the agreement for judgment? Whether a breach is substantial is determined by the circumstances of each case. The tenant's attorney can argue the breach does not warrant the serious consequences of the loss of a housing unit, or they can show a degree of mitigating circumstances regarding the violation. If the alleged breach was due to mental disabilities, the requisite intent may fail to exist. If, after a hearing, the court determines that the tenant is in substantial violation of a material term of the agreement for judgment, it must issue an execution. M.G.L. c. 239, § 9 provides that a stay of execution can be granted to a tenant whose tenancy has been terminated without fault. This stay period can be up to six months, or additionally can be 12 months if the tenant or a household member is 60 years of age or disabled. When asking to stay the issuance of an execution, a tenant's advocate should argue that the tenant has made diligent efforts to secure alternative housing, that he or she needs more time to secure alternative housing, and without this time, the tenant faces a high risk of homelessness.

Once the execution for possession has been issued by the court, it remains valid for 90 days. If the court does not issue the execution for possession within this 90 day timeframe, or the landlord does not levy on the execution within 90 days of it being issued, the execution is stale. See M.G.L. c. 235, § 23. An advocate for the landlord would then need to file a motion to get the execution reissued. An execution for money damages, on the other hand, remains valid for 20 years. In a nonpayment post judgment eviction, in which the landlord subsequently accepts the entire judgment amount, M.G.L. c. 239, § 3 provides that the judgment is satisfied, and a new tenancy is created. Finally under M.G.L. c. 239, § 3, the landlord must give the tenant a 48 hour written notice before levying on the execution. Tenant advocates should set aside defective notices through a motion to suspend use of the execution for possession.

These various post-judgment tools allow attorneys in summary process proceedings to ensure that cases are fully litigated and equitably resolved. Additionally, being proactive in knowing and understanding these key provisions can be a valuable asset to the advocates on either side. Knowledge of these legal skills ultimately benefits the young attorney, without seriously undermining the expedited process which is so central to the disposition of landlord- tenant matters.