Evicting a Tenant: The Details Matter

Two recent decisions from the Massachusetts Housing Court revisited and clarified the importance of procedural details to landlords seeking to evict tenants. While the procedures reviewed dealt with residential evictions, the message is equally important in commercial settings.

The first step to commencing an eviction is to provide the tenant with notice of his or her default and outline the steps available to cure the default. The landlord must wait a period of time (14-days typically in residential actions) before filing a summary process action. Payment of rents owed generally cure defects, thus placing the parties in the position they were in prior to the tenant’s breach. In LeClerc v. Rivera (Western Housing Court, 19-SP-1378, Dec. 30, 2019), the Housing Court held that a Notice to Quit indicating that “any payment received” would not be used to reinstate the breached tenancy went too far. A landlord cannot misstate the law, even inadvertently. The Notice to Quit that included this language was held as defective, causing the landlord to start the process all over again, losing valuable time and rental income and delaying the eventual eviction of the nonpaying tenant.

A second tenet in landlord-tenant jurisprudence requires the landlord and tenant to be parties to the litigation because of their contractual relationship. Many landlords, however, hire management companies or agents to represent them in the day-to-day management of their properties. A management company that seeks to evict a tenant on behalf of its principal, the landlord, must explicitly state it is doing so as a managing agent for the landlord. While the Massachusetts Supreme Judicial Court held that a landlord cannot hire a company solely for the purpose of evicting a tenant [Rental Property Management v. Hatcher, 479 Mass. 542 (2018)], there is nothing that prohibits a management company from filing suit to evict a tenant when the company has been hired by a landlord to manage its properties. The management company must, however, clearly indicate it is acting on behalf of the landlord in order to have standing before the Court. In Appleton Corp. v. Tewksburry, (Western Housing Court 19-SP-1829 and -2599, Dec. 17, 2019) the Court held that the management company clearly served as the agent for the landlord/owner, had done so for a long duration, and the tenants knew they were dealing with a management company that was acting within its authority on behalf of the landlord.

The lesson learned from these cases is that details matter. Before initiating an eviction proceeding, a landlord must confirm that it has the standing to bring the action. If a lease names the landlord as a Limited Liability Company (“LLC”), it must name the LLC as the plaintiff/landlord on the eviction summary process complaint. If the original tenant on the lease no longer resides at the premises, but eviction is sought against the current occupants, there should be an assignment or new lease in place. In a residential context, the notice to quit must comply with the statutory provisions as outlined in Mass. Gen. L. c. 186. Failure to follow these statutory details can be fatal to an eviction action, requiring the landlord to restart the eviction process, lose valuable time, and forgo the ability to quickly lease the space to a new tenant.


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