Facing Eviction Part II - Mass Legal Services
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Tenants’ Rights in Massachusetts During COVID
MCLE Basic Benefits Training Series
April 14, 2021
Facing Eviction Part II
Pattie Whiting
Harvard Legal Aid Bureau
Hed Ehrlich
Justice Center of Southeast Massachusetts
Key Takeaways
• How eviction cases are being heard in the
Housing Court during COVID
• The two ways an eviction case can be
resolved
• How to identify where a tenant is in the
eviction process
• How you can help a tenant facing eviction
2
How Housing Court
Is Operating During COVID
• Most housing courts are now open but access
to the courthouse is still limited.
• Most court events are still happening
remotely rather than in person.
www.mass.gov/info-details/remotevirtual-
court-services
www.mass.gov/orgs/housing-court
3
Housing Court During COVID
Zoom is being used for remote court events
• Video is the default, but litigants can call in by phone
if they don’t have access to the internet.
• If tenants don’t have internet access or can’t figure
out Zoom, some courts have rooms set up in the
clerk’s office for litigants to use for Zoom hearings.
• If a tenant has disability or technology challenges,
you can request an in person hearing. Contact the
clerk’s office.
4Virtual Clerk’s Counter
When to use the Virtual Clerk’s Office:
Ask questions about case status
Request copies of documents not available through
masscourts.org
Discuss/address scheduling issues
Discuss the need for an interpreter or a reasonable
accommodation
Different divisions may be doing things differently, so
contact the Clerk’s office with questions
https://www.mass.gov/info-details/remotevirtual-court-
services
Virtual Housing Specialist Counter
Using Zoom, you can speak to a Housing
Specialist as if you were at the courthouse
When to use the Virtual Housing Specialists
Counter:
To discuss cases appropriate for a
Temporary Restraining Order
To discuss any special concerns
in advance of a scheduled mediation sessionVirtual Court Service Center
Available statewide via phone at
(646) 828-7666 and Zoom. Meeting ID
1615261140
When to use the Virtual Court Service Center:
Refer tenants who need assistance filling out
Answer and Discovery, CDC Declaration,
motions, and other important forms
Court Zoom Stations available in Brockton,
Chelsea, Springfield, and Worcester
Attorney General Zoom Spaces
Attorney General’s Office has set up public computer
stations at the following places:
Brockton: The Family Center at Community Connections,
1367 Main Street, Brockton; contact (508) 857-0272
Lawrence: Center de Apoyo Familiar, 375 Common
Street, Suite 204, Lawrence; contact (978) 332-7108
Lynn: Lynn YMCA – 20 Neptune Blvd, Lynn; contact (781)
581-3105
Everett: Eliot Family Resource Center (Everett) – 548
Broadway, Everett; contact (781) 581-4750Hot Spot Information
List and map of outdoor hotspots at libraries:
https://libraries.state.ma.us/wifi
List of hotspots offered through MassTech program:
https://broadband.masstech.org/wifi
Map of Xfinity hotspots: https://www.xfinity.com/learn/internet-
service/wifi
Map of Spectrum hotspots: https://www.spectrum.com/internet/wifi-
access-points?opredirect=wifi-hotspots?opredirect=wifi-access-
points?opredirect=wifi-hotspots&opredirect=wifi-hotspots
Virtual Lawyer for the Day
• Many of the Housing Courts have a Virtual Lawyer for
the Day program where unrepresented tenants can
get information, advice, and limited assistance.
• You should strongly recommend to your clients that
they ask to speak to someone from the Lawyer for the
Day program as soon as they get on to a virtual court
event.
• To find out whether Lawyer for the Day is available in
your court, call your local legal services office or
contact the court.Court Resources
Tenancy Preservation Program
• The Tenancy Preservation Program (TPP) is a homelessness
prevention program based in the Housing Court.
• TPP works with tenants facing eviction as a result of behavior
related to a disability.
• TPP works with tenants to set up services to address the
underlying causes for the eviction.
• TPP may be available to assist “upstream” before a court
complaint is filed.
• Let your client know of TPP availability at all Housing Courts,
and encourage your clients to reach out to them.
11
First Tier Event
• During COVID, the first court event after a
landlord files an eviction case is called a First
Tier event.
• The First Tier event is typically scheduled with
a housing specialist and intended as a check in
with the parties and as an opportunity to
mediate an agreement to resolve the case.
12First Tier Event
• The Landlord and/or the mediator may pressure the
tenant to sign either a temporary agreement (ex. to
pay rent while the case is pending) or an agreement
resolving the whole eviction case.
• Some cases cannot/should not settle at the time of the
First Tier event (because Discovery is not compete,
because landlord insists on possession and tenant
cannot yet commit to move, and other reasons)
• It is okay not to settle at the first court event!!
13
First Tier Event in Nonpayment Cases
• If a case is brought for nonpayment of rent and the
tenant has a pending application for rental assistance
(RAFT, ERAP or other program), the case should be
continued for another First Tier Event to allow the
application to be processed.
• If the landlord does not agree to continue, the tenant
may need to file a motion to continue.
14What happens after the
First Tier Event?
• If the case is not continued for another First Tier
event or settled, the case will be scheduled for a
Second Tier event with a judge.
• The Second Tier event could be scheduled as soon as
two weeks after the First Tier event.
• If the tenant has not filed an Answer with a jury
demand, the Second Tier event will likely be the trial.
15
Resolving an Eviction Case
• Eviction cases can be resolved in two ways:
either by an agreement between the parties
or by the judge after a trial.
• More than 90% of eviction cases are
resolved by an agreement reached between
the parties.
16Agreements
• The agreement is usually an Agreement for Judgment (AFJ),
where judgment for “possession” and any rent owed enters
for the landlord.
• A “judgment for possession” means that the landlord won
the right to the apartment. Often, however, the AFJ will
allow a tenant to stay in their home if they comply with
certain terms (usually involving payments and/or behavior).
• A tenant should not agree to terms that she will not be able
to follow. The consequences for violating an AFJ is almost
always immediate eviction.
• Agreements cannot be changed unless both sides agree, so
don’t agree to something thinking you can ask for a change
to the terms later.
17
Mediation or Negotiation
• Most summary process cases are resolved by an
agreement between the parties rather than going
to trial.
• Parties at Housing Court are invited to mediate
using a Housing Specialist, or they may negotiate
directly with the opposing party in an effort to
reach a settlement.
18Mediation or Negotiation (continued)
• Mediation is an opportunity to problem-solve about
the case and craft a compromise between the parties.
• While agreements arising from mediation or
negotiation can be good for the tenant, sometimes
unrepresented tenants are taken advantage of since
most landlords have experienced attorneys
representing them.
• Advocates have to be vigilant to make sure that
tenants are not being pressured into settling their
case or agreeing to bad settlements or terms that
they cannot comply with.
19
Tips for Agreements
• Make sure that everything that’s important is in the
agreement (for example, that certain repairs are getting
done, or that the tenant is given an extension on when the
monthly rent is due). Make sure the tenant gets something
out of the agreement too!
• Ask to talk to the Lawyer for the Day for assistance
negotiating an agreement or to review the terms of the
agreement before the tenant signs it, if one is available.
• Above all: do NOT sign anything that is unrealistic for the
tenant to fulfill. If they cannot comply with the agreement,
the landlord can come back to court and ask that they be
allowed to move the tenant out.
20Advocacy Tips:
Booklet 10 Negotiating a Settlement
• Use Worksheet: What Terms Do I Want
See Booklet 10, Legal Tactics page 585.
• Organize the tenant’s goals and demands as well as
their vulnerabilities.
• Read about negotiation strategies and get answers to
common questions.
• Review alternative forms of settlement or resolution
to the case besides an Agreement For Judgment
(stipulations v. judgments).
21
After an Agreement:
Motion to Issue Execution
• If the eviction case was settled by an Agreement for
Judgment and the landlord claims that the tenant
did not comply with the terms, the landlord can file
a Motion to Issue Execution, which asks the court to
give the landlord permission to move the tenant out
of their home.
• If the motion is based on nonpayment of rent, the
tenant should ask for a stay under the CDC
moratorium (through June 30th) or if they have a
pending application for rental assistance.
22Execution
See Legal Tactics
Form 21
page 671
23
Motion to Issue Execution
• The main issue the court will consider in deciding the
motion is whether the tenant complied with the
agreement (“whether there was a substantial breach of
a material term of the agreement”).
• Other issues like conditions of disrepair are usually not
considered by the judge, even if the tenant did not pay
rent because of problems in their home.
• A tenant should NEVER withhold rent if they’ve signed
a court agreement that requires them to pay rent.
24Motion to Issue Execution (cont.)
• If the court allows the landlord’s motion to issue execution,
it issues the next day and the landlord may take the
execution to a constable to serve a notice that if they do
not vacate the premises, the tenant and all property will be
removed on a specific date and time which is at least 48
hours after the notice is served (“a 48 hour notice”).
• A tenant that has signed an agreement and then violates it
can be moved out very quickly. That is why it is very
important to make sure that the tenant can comply with
the terms of the agreement before they sign.
25
Summary Process Trial
• If the parties can’t reach an agreement
resolving the case, it will go before a judge
for a trial.
• Most tenants go to trial without a lawyer.
• Tenants don’t need to use special legal
language, they just have to make sure the
judge understands the issues, facts and
arguments that are important to the
tenant’s case.
26Summary Process Trial (cont.)
• Landlord goes first and presents her evidence (for
example: witness testimony, documents, photos, notices,
etc.).
Tenant has a chance to cross-examine witnesses and
object to evidence.
• Then tenant gets to present her case and evidence
(including testimony, documents, photos etc.).
Landlord has a chance to cross-examine witnesses
and object to evidence.
27
Tips for Virtual Trials
• If the tenant wants to offer documents or photos into
evidence, they must have them scanned and be able to
send it electronically to the court and the landlord so
everyone can see it during the hearing. If a tenant doesn’t
know how to do this, have them contact the court ASAP
for assistance.
• If the tenant or the landlord is going to use documents or
exhibits during trial, ensure that the tenant and any of
her witnesses have a way to view those documents in real
time.
• If the tenant or their witness is on the phone, they will not be
able to see the documents.What Happens After the Trial
• The court will mail the decision to the parties.
– Tenant may win “possession” i.e. the right to the apartment
and/or damages or may need to make a payment in order to
keep possession
– Landlord might win possession and/or money damages
against the tenant
• The parties have 10 days from the date of the court’s
decision to appeal. (Tenant can also seek stay of
execution in appropriate cases.)
• If the landlord wins at trial, she may be entitled to a
judgment for possession of the apartment and/or a
judgment for unpaid rent.
29
What Happens After the Trial (cont.)
• If the landlord wins at trial and the tenant doesn’t
appeal within 10 days, they can get the execution, which
is then given to a sheriff or constable.
• The constable then serves a 48 Hour Notice on the
tenant notifying her that if she does not move out of the
unit, he will levy on the execution – which means he will
move the tenant and her property out of the apartment.
• The 48 Hour Notice must state the date and time the
tenant will be moved out and must be served at least 48
hours notice prior.
3048 Hour Notice to Vacate
31
What to Do If A Client
Receives a 48 hour notice
• Seek a “Stay” or Temporary Restraining Order (TRO) Against
Use of Execution: If the tenant has been served with the 48
hour notice and is not ready or able to move, he may go the
court to ask for more time in his home.
– If the motion is based upon nonpayment of rent, the
tenant should seek a stay under the CDC moratorium (if
still in effect) and/or ch. 257 if they have a pending
application for rental assistance.
• Get Default Removed or Ask for New Hearing: If the tenant
was defaulted in court, or if they missed a hearing on a
motion to issue execution (lack of notice, illness, etc.), the
tenant should file papers to get the default removed or to ask
for another hearing.
32Temporary Restraining Order
Form 15
• Write a complaint explaining what is going on and
what the tenant wants the court to do about it.
• Bring all proof.
• Ask for an Affidavit of Indigency to have fees waived.
• Hearing will be right away or soon after case is filed
(client may need to serve the landlord).
• Tell the judge what is happening and what the tenant
wants the court to do.
• Listen carefully to the court’s decision and get a copy
of her written order granting or denying the request
for relief.
33
Levy on the Execution
• If the tenant does not ask for a TRO/stay or the judge
denies their request, the levy will go forward.
• Advise tenants to get their important belongings together
and bring them with them (clothes, birth certificate and
other important papers, medicines, etc.).
• MA storage law – property must be stored in a licensed and
bonded warehouse; can be sold after 6 months.
• A few Massachusetts communities (including Cambridge,
Somerville, Malden, and Framingham) have local eviction
moratoria currently in place which prohibit landlords from
levying on an execution in certain types of cases.
34Practice Tips for Helping Tenants Facing Eviction
The most important thing to do when attempting to assist a client facing eviction is to
properly assess where she is in the process. Here are some helpful questions to ask to
quickly figure out what stage the case is at:
1. Can you read me the notice you have received?
• Might be an Notice to Quit, Summons, Court Date Notice, Judgment, or 48 hr.
notice—advice and options are different depending on the notice.
2. Have you ever been to court before?
• If yes there could be an underlying agreement in the case and you want to ask
about that.
• Check MassCourts.org to look up the case.
3. Does the notice say that the Sheriff will be coming to your house to move you out?
• Consider filing a TRO, trying to negotiate with the landlord, or preparing for levy
by applying to shelter.
35
Ways to Help Tenants Facing Eviction
• Get them connected to legal services/CELHP/Lawyer for the
Day
• Provide assistance applying for rental assistance (if needed)
• Help them file an Answer, Discovery and Jury demand (using
MADE or forms on masslegalhelp.org)
• Help them access Zoom to enable them to fully participate in
court events
• Connect them with the Tenancy Preservation Project, a
community group or other organization that can provide
additional services and support
36Ways to Help Tenants Facing Eviction
• Scan documents needed for a motion hearing or trial and
help the tenant send them to the court:
– Notices to the landlord about conditions (including emails and texts)
– Rent receipts
– Photographs of poor housing condition
– Inspection reports verifying poor housing conditions
• Help them prepare for the hearing
– Create a list of things to say to the judge
– A list of questions to ask the landlord
37You can also read
