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http://www.avvo.com/legal-guides/ugc/how-to-go-about-evicting-a-non-paying-tenant-in-massachusetts

How to go about evicting a non-paying Tenant in Massachusetts.

Written by John Keramaris

Landlord / Tenant Lawyer - Woburn, MA

Contributor Level 11

Posted over 4 years ago. Applies to Massachusetts, 28 helpful votes

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1

Gather All Paperwork Regarding Tenancy

It is critical that, before doing anything, you collect any and all documentation pertaining to your tenant's payment or failure to pay rent. Such documents include checks, rental receipts and returned (bounced checks). Also find the original document creating the landlord-tenant relationship (the written lease or tenancy-at-will agreement). After finding these documents, place everything in one file.

2

Determine the exact amount the tenant is behind.

Though this may sound simple enough, sometimes the tenants have fallen so far behind that extra efforts need to be made to determine the exact amount the tenant is in arrears. Determining the exact amount owed is critical in maintaining an upcoming Court action.

3

Draft a 14-Day Notice to Quit for Non-Payment of Rent (Part 1)

Draft a 14-Day Notice to Quit for Nonpayment of Rent. Here is a form I have created: I have split it over steps 3 and 4: To: Mr. Bad Tenant- 123 Fake Street Anytown MA You are hereby notified to quit and deliver up the premises you now rent as a tenant, namely, 123 Fake Street, Anytown MA and all appurtenant uses thereto. You have 14 days from receipt of this notice to leave or I will go to court and get permission to evict you. By law, a court is the final authority in every eviction and if you believe you are entitled to remain as a tenant, you or your lawyer may present your case in court. The reason your tenancy is being terminated is that you have failed to pay the rent due as follows: January 2010: $1,200.00, February 2010: $1,200.00 Total : $2,400.00 (The remainder of this form is on Section 4)

4

Draft a 14-Day Notice to Quit for Non-Payment of Rent (Part 2)

If you have not received a notice to quit for nonpayment of rent within the last 12 months, you have a right to prevent termination of your tenancy by paying or tendering to your landlord, your landlord's attorney or the person to whom you customarily pay your rent the full amount of rent due within 10 days after your receipt of this notice. If your tender of rent payments does not comply with the requirements noted above or otherwise cure or excuse the breach as provided by law, any funds paid by you after the date of this notice shall be accepted for use and occupancy only and not for rent, shall not waive this notice or any subsequent eviction proceedings, nor shall it create or reinstate any tenancy. You are hereby notified to produce the original of this notice at any trial for possession of the premises. Very Truly Yours, Good Landlord

5

Have a Constable Serve the 14-Day Notice To Quit

After drafting the notice to quit, serve it upon the non-paying tenant by means of a local constable. Though a constable may charge you anywhere from $25-$40 for service, it is money well spent as many tenants will deny that they ever received a Notice To Quit. I have provided the link to a Constable that effectuates service all over the Commonwealth below. Though some Landlords prefer to send the Notice to Quit via certified mail return receipt requested as to save on the expense of a constable, they run the risk of the tenant never signing the return and again claiming that they never received the 14-Day Notice.

6

Wait two weeks, then obtain and fill out summary process summons and complaint.

If the Tenant does not contact you regarding payment or pending move within a week after service, obtain a summary process summons and complaint from your Local District Court or Housing Court Clerk's Office. It may be a good idea to get this form well before the 2-week period expires if you have an idea that the tenant won't pay or move. This form will cost you $5.00 and you will have to fill it out by hand (neatly) or by using a typewriter. Be sure to consult a local attorney on where to file as it may be advisable to file in one Court or the other based on the local jurisdiction of the Housing Court. Take extra-special care to fill out the summons and complaint correctly according to the dating instructions on it. As for reasons for eviction simply state: "The tenant has failed to pay rent as follows...." Also, make sure to ask for your court costs associated with bringing the action which will be your filing fee ($195.00) and Constable Fee.

7

Serve the Summary Process Summons and Complaint Upon Tenant

Serve the Summary Process Summons and Complaint on the Tenant by means of Constable.

8

Obtain Return of Summons and Notice to Quit and file both on the entry date noted on the complaint

After receiving the return from the Constable on the Summary Process Summons and Complaint, file it along with the Returned Notice to Quit with the Clerk's office in the Courthouse you originally obtained the form from. Take special care to file the Complaint on the "entry date" you specified on the complaint when you first filled it out. Filing the complaint will cost you $195.00 payable by cash or check. If at any point in time during this process the Tenant retains an attorney to represent him/her it is highly advisable that you retain counsel.

9

Go to Court on the Hearing Date

Go to the Court on the Date of the Hearing. Bring all documentation described of in Step 1 with you. Explain to the clerk after they call your case that you want to attempt mediation. This gives you an opportunity to work something out with the tenant short of going in front of a Judge. As you may already know, the laws in Massachusetts are very favorable to tenants. It may be preferable to come to an agreement before going in front of the Judge. A mediator may be available on the day you go to Court. Explain to the mediator that you are evicting only for non-payment. Though it is hard to do so, keep your cool during mediation. Possible agreements you may enter into include agreed-upon move out dates, payment plans, or a combination of both. If you go in front of the Judge, explain that you are evicting for non-payment of rent and this reason only. (If other reasons exist for eviction, consult with an attorney prior to beginning this process.)

10

Obtain Execution, Levy by means of Constable

If judgment is granted in your favor you can not do anything to get your apartment back until you received a document from the Court called "Execution for Possession." Courts usually issue the Execution 10-days following entry of Judgment. Some busier District Courts do not issue this automatically and requests need to be made to the clerks for prompt issuance. After receiving the execution, deliver it to a Constable. The Constable will give your tenant a time period to move out. If they fail to do so, they are authorized by law to physically remove your tenant and their belongings. Hopefully, for your wallet's sake, your tenant will have abandoned the premises by this point because you will have to pay the Constable for this process which is very expensive (moving trucks, movers, and storage involved). After they have been moved out, change the locks, repair, and attempt to re-rent your unit.

11

If you lost

Don't despair. Seek out the aid of a local attorney familiar with Landlord-Tenant Law. If there is one thing you should take away from this guide, it is this: Do not attempt to go this alone if the Tenant retains an attorney. Also, do not be afraid to contact an attorney to discuss the matter prior to starting this process. Many are willing to help you over the phone with brief free consultations. Also, do yourself a big favor and join a local chapter of the Massachusetts Rental Housing Association. The dues are minimal ($50 a year) and the wealth of knowledge you'll gain by being a member will become apparent at the first meeting you attend. www.massrha.com

Additional Resources

Massachusetts Rental Housing Association, An integral network of Landlords helping Landlords all over Massachusetts providing support groups, monthly meetings, speakers, and newsletters. (Several local chapters for your own City or Town). http://www.massrha.com/

New IRS regulations impact owners of rental, investment properties - 2012

New IRS regulations impact owners of rental, investment properties

Real Estate Tax Talk By Stephen Fishman
Inman News®

If you own rental property, or any other business or investment property, the Internal Revenue Service has bad news for you.

It has issued a massive new set of regulations (256 pages in all) with complex rules that, starting in 2012, all owners of business and investment property are supposed to follow to determine what constitutes a currently deductible repair versus an improvement that must be depreciated over several years.
Eight years in the making, the new regulations cover all types of tangible business and investment property, whether real or personal property, but they are particularly significant for owners of business and rental buildings.
Among many other things, the regulations will likely make it more difficult to classify fix-ups and other building expenses as currently deductible repairs. Instead, they will have to be treated as "improvements."
This is not good if you're a building owner because, when it comes to taxes, repairs are far more valuable than improvements. There are two big reasons why:

• repairs are currently deductible in a single year, while improvements must be depreciated over many years (39 years for nonresidential buildings, 27.5 years for residential buildings); and
• if you sell a building at a gain, you must pay a recapture tax of up to 25 percent on the depreciation you claimed in prior years.

For example, if you spend $10,000 to replace a roof for an apartment building, the cost will have to be deducted a little at a time over 27.5 years. On the other hand, if it's a repair, you can deduct the entire cost in one year.
As a result, a fix-up you can label as a repair can be up to 271 percent more valuable than an improvement.
So what's the difference between a repair and an improvement? An improvement is a major change or alteration to property. According to the new regulations, there are three types of improvements:

• betterments -- improving property or repairing defects;
• restorations -- making older property like new; and
• adaptations -- adapting property to a new use.

In contrast, a repair doesn't make property better, restore it, or adapt it to a new use. A repair is a much more minor change that just keeps property in good running order.
Until now, due to a lack of clear IRS guidelines, some building owners were able to claim repair deductions for installing new roofs, replacing heating and air conditioning systems, and making major structural changes to building interiors.
When compared to the building and its structural components as a whole, these projects could be plausibly portrayed as relatively minor and therefore treated as deductible repairs.
This is no longer possible. In effect, the new regulations require that buildings be divided up into as many as nine separate properties for tax purposes: the entire structure and up to eight separate building systems.
A significant change to any of these must be treated as an improvement and depreciated over several years. As a result, more costs will have to be classified as improvements rather than repairs.
Under the regulations, an improvement to any one of eight separate building systems constitutes an improvement to the whole building and must be depreciated:

• Heating, ventilation and air conditioning ("HVAC") systems: This includes motors, compressors, boilers, furnace, chillers, pipes, ducts and radiators.
• Plumbing systems: This includes pipes, drains, valves, sinks, bathtubs, toilets, water and sanitary sewer collection equipment, and site utility equipment used to distribute water and waste.
• Electrical systems: This includes wiring, outlets, junction boxes, lighting fixtures and connectors, and site utility equipment used to distribute electricity.
• All escalators.
• All elevators.
• Fire-protection and alarm systems: These includes sensing devices, computer controls, sprinkler heads, sprinkler mains, associated piping or plumbing, pumps, visual and audible alarms, alarm control panels, heat and smoke detectors, fire escapes, fire doors, emergency exit lighting and signage, and firefighting equipment such as extinguishers and hoses.
• Security systems: These include window and door locks, security cameras, recorders, monitors, motion detectors, security lighting, alarm systems, entry and access systems, related junction boxes, associated wiring and conduit.
• Gas distribution system: This includes pipes and equipment used to distribute gas to and from the property line and between buildings.

For example, if a building's HVAC system is upgraded, it must be classified an improvement to the whole building and depreciated. This is so even though the upgrade might not be extensive enough to constitute an improvement to the building as a whole.

Tenant selection HOWTO

[From online forum]

Have seen many posts asking about tenant selection.  Here are my rules to share.

standard rule:
0) this is business, so treat it as business.  Money talks.
1) ok credit history.
2) good rental hisotry
3) stable/verifiable income after debts is 3x of rent.
4) a couple with young kids is preferred.

here are the reasons:

0) do not get emotion involved in business.  Or you will loss money.

1) bad credit indicates applicants are financially irresponsible.  On the other hand, applicants with perfect credit and good income would buy house within few years.

2) rental hostory is more important than credit sometime.  Anyone had bad rental history will do it again.  I have not seen anyone did not repeat it.

3) Income after debts are important.  Check income and also check debt payment.  3x rent indicates no problem to pay rent.

4) good business is stable and predictable.  For rental, a couple with young kids is a very stable family for years comparing to singles, or live with parents/roommates.  with exact 3x rent and young kids, the family has less chance to save and buy house.  And with young kids, the family would intent to stay in same school for many years.  Therefore, this type of tenants has good chance to be good long term tenants.

Of course, there is time to relax the rule.

When the proeprty is on the market for weeks and no other alternatives, I would consider someone with questionable credit/rental history or drop the income to 2.5x of rent.  To do so, we need to reduce the risk and minimize the loss in case bad thing happens.  A common way is to increase the deposit to 2x or 3x rent.  Some states do not allow that.  You might be able to ask for last month rent upfront.  the key is to collect more money upfront so that you have enough reserve to deal with eviction and vacancy.