Information for Owners of Rental Property:
The following information is furnished as a courtesy of the Norwood Police Department to assist landlords with the eviction of tenants who are creating a common nuisance. It is the intention of the Norwood Police Department to resolve common nuisance problems within the community by first seeking the assistance of the property owner and attempting to work with them to remove the disruption from the community. In furtherance of that goal we have put together the following information for property owners. This document will outline the elements of a common nuisance as defined in Chapter 130 and provide an outline of the steps that you, as the property owner, must take to remove the tenant who is creating the common nuisance.
In addition, this document will provide some information regarding the potential liability if a property owner fails to take action. Chapter 130 contains monetary and criminal punishments for those that aid or permit a common nuisance on their property. It is the mission of the Norwood Police to keep peace within the community and we sincerely hope that property owners will work with us to accomplish that mission.
This information is intended as courtesy only, and in no way should be considered legal advice. The Norwood Police Department encourages landlords to seek the assistance of an attorney when attempting to remove problematic tenants. For a referral to a qualified attorney who handles this type of law, you can contact the Massachusetts Bar Association, Lawyer Referral Service at 617-654-0400, or go to www.masslawhelp.com.
Process for Voiding a Lease or Tenancy of a Tenant Using Premises for Common Nuisance
Mass. General Law Ch. 139 s. 19
- 1. ELEMENTS REQUIRED:
- If a tenant or occupant of a building
- Uses the premises or any part thereof
- illegal keeping or sale of alcohol in violation of MGL 138
- illegal keeping, sale or manufacture of drugs in violation of MGL 94C
- illegal keeping of a weapon in violation of MGL 269 s.10
- Such use or conduct shall, at the election of the owner, annul and make void the lease.
- And the owner may seek an order requiring the tenant to vacate the premises.
In most eviction cases there is a requirement to terminate the tenancy with a notice to quit. Under normal circumstances the notice to quit term would normally be 14 to 30 days. When the case falls under G.L. c. 139 §19 for any of the reasons listed above the notice to quit term is shortened to 48 hours. This allows the landlord to provide notice and then file the summary process complaint with the court within 48 hours after a common nuisance incident has occurred.
- 2. SUMMARY PROCESS PROCEDURAL STEPS FOR LANDLORD TO TAKE
- Send notice to Quit.
- i. It is not necessary to have a constable serve a notice to quit. A landlord can serve it. The rules only require that a landlord file a copy of the notice to quit on which s/he relies to terminate the tenancy and proof of its delivery. However, it is a wise practice to have a constable serve the notice to quit in the same manner as s/he would serve the summons and complaint to avoid later disputes about receipt of the notice to quit. A constable’s return of service is prima facie evidence of the facts stated in the return. It is the landlord’s burden to prove that the tenant received the notice to quit as part of his/her prima facie case at trial. (See attachment A for the sample notice to quit)
- ii. It is not a good practice to send a notice to quit by certified mail only. It may not be accepted by the tenant. Remember that the time period of the notice to quit starts to run only when it is received by the tenant.
- iii. Only after the notice to quit has expired and the tenancy is terminated, can the landlord start a summary process case by serving a summons and complaint. The required summons and complaint form is available from the District Court or Housing Court clerk’s office where the case will be filed. There is a fee of $5.00 for the summons form at the court. (See attachment B for the complaint)
- Fill out Summary Process Complaint and Summons Form.
- i. After the tenancy has been terminated, the summons and complaint can be filled out and then served. There must be at least seven days, but not more than thirty days, between the service of the completed summons and complaint and the entry date. The entry date is always a Monday (unless Monday is a holiday when the entry date shifts to Tuesday). It is sufficient if the summons and complaint is served on the Monday immediately preceding the Monday entry date.
- ii. Once the entry date is determined, the two remaining dates fall into place. The tenant’s answer with counter claims and discovery, if filed, must be filed with the court and with the landlord or his/her attorney by the Monday after the entry date. (Again if Monday is a holiday, the answer date shifts to Tuesday).
- iii. The trial date is set for the second Thursday, at 10 AM after the entry date. Usually this means that the trial date is the Thursday after the answer date.
- iv. Once these dates are determined, they must be noted on the original of the summons and complaint. The reason for the eviction must be consistent with the reason given in the notice to quit.
- v. The summons and complaint must be served by a constable or sheriff, either in hand, or left at the last and usual address and mailed to the tenant by first class mail. After service is completed, the constable will complete the return of service and return the original of the summons and complaint to the landlord for filing with the court.
- vi. On or before the entry date, the landlord must file or enter the case with the court where it will be heard. It is at this time that a docket number is assigned to the case. To complete the entry, the landlord is required by Rule 2(d) of the Uniform Summary Process Rules to file:
- the original of the summons and complaint which was served on the tenant, along with the return of service
- a copy of the notice (s) to quit which were used to terminate the tenancy, if one was required, along with proof of delivery of the notice(s)
- filing fee $195
- if the eviction is governed by local condominium conversion laws, any applicable affidavit of compliance with those laws.
- Entry can be done in hand or by mail. However, it is complete only when it is received by the court. It is not complete upon mailing. Late entry is not allowed unless the tenant or the tenant’s attorney assents to the late entry in writing.
- i. A landlord’s case should include testimony and/or documentary evidence of the following:
- the landlord’s ownership and superior title to the rental unit.
- the nature and terms of the tenancy, including the identity of the tenant, identification of the rental unit,, the date the tenancy began, the fact that the tenant is still in possession of the unit, the rental amount and the date it is due. This can include any lease or rental agreement.
- the notice to quit, with proof of service.
- the reason for the termination of the tenancy, if any, i.e. common nuisance. The following items will be very helpful when proving a common nuisance.
- Police Department Arrest Log - Easiest to access if you have the date of the arrest. Contains name and address of defendant as well as the list of charges.
- Copy of the Complaint - On file at the District Court in the office of the Clerk Magistrate. Contains name, address, date of birth and offenses charged. The court docket will also contain the text of the police report or a statement of probable cause.
- Search Warrant - In Massachusetts, police must return a search warrant to the court within seven days. Once the warrant is returned, it becomes a public record. Warrants contain a description of the place that was searched, a description of what the police were searching for, and usually the names of the suspects. On the back of the warrant, the police list the items they seized during their search. A warrant is kept on file in the Clerk's office at the court that issued it.
- Search Warrant Affidavit - In order to obtain a search warrant, the police must file an affidavit describing their probable cause. Once they return the warrant, the affidavit becomes a public record. Affidavits contain allegations made by informants, the results of police surveillance and often details about the suspect's criminal record. The affidavit is also on file in the Clerk's office at the issuing court.
- Newspaper Articles - Many drug raids are covered by local newspapers. Articles may contain the name and address of the defendants, the crimes they were arrested for, as well as comments made by investigating officers.