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