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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/

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.

Does Home Warranty worth the money?

Home buyer faces the question of home warranty all the time. Does Home Warranty worth the money?

Some people have some good experiences but most don't. The three most famous home warranty company are:  American Home Shield, Old Republic, and First American Home.

Here are some real life experiences (from online forum):

Person S: "Bought all three before but none of them is good. Won't buy any more."

Person I: "Old Repulic is waste of money. Paid the co-pay for a problem and then told me that it won't cover it."

Person B: "Old Repubic is a scam:
The plumber went there, check, and then say insurance denied coverage because it is a missing washer or something on the faucet that is hard to find. Then the plumber charged $150 for replacing the kitchen faucet, and I still have to pay copay.

I suspect the previous plumber did that a few months ago for the same leak..."

Person S1: "First American = Waste of money"

9 Rental Property Tax Deductions For Landlords

http://www.candofinance.com/taxes/landlord-tax-deductions/

9 Rental Property Tax Deductions For Landlords

By Michael Diaz


Landlords must take on a significant amount of responsibility if they hope to make a profitable return on their real estate investment. In addition to finding and keeping a sufficient number of tenants, landlords are also responsible for making sure rent is paid and for the continual upkeep of their rental property.

As a result, many landlords do not take the time to learn about the numerous tax benefits associated with rental income. This is a mistake. According to the IRS, a landlord can deduct almost all of the expenses associated with renting her property. However, without a thorough understanding of the tax deductions available to landlords, you could end up missing some of these deductions and overpaying on your taxes. Therefore, if you are landlord, there are several important tax deductions that can save you a lot of money when tax time rolls around.

   
Here are nine important tax deductions that landlords can take advantage of during tax season.

Repairs

You can deduct the cost of all repairs made to your rental property. Common repairs that are eligible for the deduction include repainting, fixing the floors or gutters, fixing leaks, fixing broken windows, fixing the roof and plastering.
Keep in mind that the costs of improvements or repairs that increase the value of your rental property are not tax deductible. Repairs maintain the current value and condition of your property while improvements increase the value. See the IRS website for examples of improvements that do not qualify.

Depreciation

The depreciation deduction is a way for landlords to get a tax break on the actual cost of the rental property. The IRS has a depreciation formula which reduces the tax value of your rental property each year. The annual depreciation amount is fully deductible.
For example, if you paid $900,000 for an apartment complex, the IRS would make an annual calculation to determine the tax value of the property. If they determined that the tax value was $895,000, then you would be able to deduct $5,000 from your taxable income as a depreciation expense. Keep in mind that the depreciation expense will change each year.

Interest

You can deduct the mortgage interest on your rental property. Keep in mind that you are often able to deduct the costs of securing a mortgage as well (i.e. the closing costs). You can also deduct the interest on a loan used to fund renovations and improvements. You may also be able to deduct interest from credit cards that you used to fund rental property expenses.

Cleaning And Maintenance

Your regular maintenance and repair fees are tax deductible. These fees can include landscaping, plumbing, cleaning, pest control, trash removal and equipment rental. The cost of your monthly utilities is also tax deductible.

Employee Wages

If you hire employees to work at your rental property, you can deduct the cost of their wages. The same deduction also applies to independent contractors who work for you.

Insurance

You can deduct the insurance premiums you pay for insurance pertaining to your rental property. This includes fire, flood, hurricane, landlord liability and theft insurance. If you have employees that work at your rental property, you can also deduct the cost of their health and workers’ compensation insurance.

Legal And Professional Fees

If you pay a tax professional to do tax work related to your rental property, the costs of that work is tax deductible. Legal fees pertaining to your rental property are also deductible. Finally, expenses used for advertising your rental property are tax deductible.

Travel

If you travel for purposes related to your rental activity, you can deduct your travel expenses. For example, if you drive to your property to speak with a tenant about a complaint, you can deduct your gas expense. Long distance travel expenses including airfare and lodging are also deductible. Make sure to hold onto all of your receipts.

Damage

If your building is damaged by a natural disaster or a fire, you might be able to deduct a portion of the damage costs. The exact amount will depend on the amount of damage and the amount of insurance you have for the property.

Keep In Mind

Almost all of the expenses associated with your rental property may be tax deductible. Consult a tax adviser if you are not sure if a particular expense is eligible.
The tax deductions discussed in this article are only applicable to landlords who have no personal use of their rental properties. There are different tax rules that apply to rental income from property that is used partially for personal use.
Generally, your deductions for rental expenses must be made in the same year in which you pay them.
Keep track of your receipts, checks, and bank statements that show your deductible transactions. The IRS might want to see them at tax time.
Being a landlord is a difficult job. Don’t make it harder on yourself by missing out on important tax breaks. Getting educated on landlord tax deductions could save you thousands of dollars at tax time.

Tax Season again! Tax for Rental Income and Expenses

Tax Season again! Tax for

Rental Income and Expenses - 2013

Improvement vs. Repair

http://www.irs.gov/publications/p527/ch01.html#en_US_2013_publink1000218983

Roof numbers

[from online forum]
22 SQs, $2000 ~ $2500 material, $3000 Labor (another two quotes: $11000 and $9000!)

5SQ: $390 Materials, $160 Labor
(at menards, 3in1 shingles, 15$ a bundle, architectural shingles, $26 a bundle. today I used architectural, 5 sqs, $390)

Landlord Lawsuit Prevention - How To Avoid Litigation

Landlord Lawsuit Prevention - How To Avoid Litigation
By: Kevin Kiene

Why can't we all just get along? Because greed is part of human nature, and where there is greed, there will be someone who would rather make a quick buck through an easy lawsuit than actually create something of value.

Enter: landlord lawsuits, bane of our existence, and serial in nature since everyone just loves to hate landlords, under the false assumption that all landlords are miserly and rich. There are ways to minimize the incidence of these lawsuits, however, without offshore accounts or complex legal ownership structures.

Landlord Lawsuit Prevention Strategy 1: Lead-Based Paint

You can't win a lead-based paint lawsuit. Say it with me: "I can't win a lead-based paint lawsuit." The tenants kid has a friend over, and it happens the friend has lead poisoning, they can sue you and win. The tenants shove lead-based paint chips in their own kid's mouth (don't laugh it happens), they sue you and win. With me here? It is impossible for a landlord to win a lead paint lawsuit.

That's the bad news. The good news is that there are ways to minimize the likelihood of one occurring in the first place. First of all, you MUST comply with all lead-based paint laws in your state. This probably means a lead paint inspection in between every tenant, and providing a series of lead-based paint disclosures to the tenants when they sign the lease agreement. I can tell you right now that families who like to sue prefer the easiest targets: landlords who don't follow lead-based paint laws to the letter. By showing fastidious attention to detail, you can send a strong message.

A final note: health problems from lead-based paint occur when very young children ingest the paint chips. This means that, if you have an applicant with children under six years old, you should take extra precautions to check their legal history and see if they've ever been involved in a lawsuit (particularly a lead-based paint lawsuit). Beware of serial litigators; they'll take you for all you're worth, and then some.

Landlord Lawsuit Prevention Strategy 2: Mold

I'm sorry, but toxic mold as a national health hazard is a myth. Yeah, yeah, yeah, I know toxic mold can make people sick, but genuine cases of toxic mold sickness are EXTREMELY rare.

Now for the bad news: it doesn't matter that it's not a common risk, because the public believes the fear-mongering campaigns that the media has used to score ratings. This means that you can be sued for toxic mold poisoning, and you'll probably lose.

So what can you do? Prevention, prevention, prevention, starting with choosing rental properties to purchase. Look for any evidence of water infiltration, or leaky pipes or ducts. Be aware of any water problems in the property before buying it, and make sure you correct them before signing a lease agreement. You should also consider having a mold inspection performed prior to signing the lease agreement, by a licensed toxic mold remediation firm. When you do sign the lease agreement, make sure to add a clause into it that tenants are responsible for informing the landlord or property management company immediately if they notice any signs of mold growth, to put some of the responsibility back on the tenants.

Landlord Lawsuit Prevention Strategy 3: Make It Personal

If you take nothing else away from this article, take this away: tenants are far less likely to sue landlords that they know personally. You ever hear people say "Hell, they don't have to like you" WRONG! They do have to like you, because who wants to sue someone that helps them fix their resume, or sends them Christmas cards every year? Time spent getting to know your tenants on a personal basis is time well invested, and is both the easiest and most effective method of preventing landlord lawsuits.

Being an absentee landlord is a guaranteed way to find yourself in the middle of a lawsuit. Instead, be proactive, show some initiative, because with a little effort you can prevent lawsuits before they even occur to your tenants.

Read more: http://www.articlesnatch.com/Article/Landlord-Lawsuit-Prevention---How-To-Avoid-Litigation/492822#ixzz1gU3UwYCX
Under Creative Commons License: Attribution No Derivatives

Rent increase? Howto

[From online forum]

we sending letters out this week... @ 2011-12-07

current lease holders no increase.
month to months, 3-5%
new leases, 5-10%

ZT: LEASE CANCELLATION AND TERMINATION AGREEMENT

LEASE CANCELLATION AND TERMINATION AGREEMENT

            This LEASE CANCELLATION AND TERMINATION AGREEMENT (this “Agreement”) is made by and among _________________ (the “Landlord”), on their own behalf and on behalf of all other persons or entities having an interest as landlord under that certain Lease dated __________________ ___, ________ (the “Lease”) demising certain leased premises described therein (the “Premises”), on property located at __________________, City of __________________ County of __________________, State of __________________ (the “Building”), and by _____________________ (the “Tenant”), for its own behalf and on behalf of all of its predecessors-in-interest in the Lease and all other persons or entities having an interest as tenant under the Lease.

            Landlord and Tenant have agreed that the Lease shall be cancelled and terminated in consideration of the mutual covenants set forth below and in accordance with the terms and conditions set forth herein.

            1.         Recitals Incorporated.  The foregoing recitals are incorporated herein by reference into this Agreement as though set forth at length.

            2.         Security Deposit.  The parties acknowledge that Tenant has deposited with Landlord the amount of $__________.

            3.         Lease Modification.  The term of the Lease shall expire and shall be deemed terminated and cancelled effective on __________________ ___, _____ (the “Expiration Date”).  Except as modified herein, the Lease is unmodified and in full force and effect.

            4.         Lease Termination and Termination Payment.  Notwithstanding the foregoing, if, on or before the Expiration Date, Tenant vacates the Premises and leaves such Premises in reasonably good condition and repair and otherwise in such condition as is required under Paragraph 6, below and under the Lease with respect to surrender of the Premises at the end of the term of such Lease, then, in such event, as of the date that Tenant so vacates the Premises (such date being the “Termination Date”), (i) the Lease shall be deemed terminated and cancelled with the same effect as if such date were the normal expiration date of the Lease; (ii) Landlord shall pay or cause to be paid to Tenant, a cash termination payment of __________________ Dollars ($__________________.00); (iii) neither party shall have any claim against the other, and each party releases the other from any and all claims, liabilities, damages or actions of any kind whatsoever arising out of or pursuant to the Lease or Tenant’s use or occupancy of the Premises; and (iv) Landlord shall return the security deposit to Tenant.  Notwithstanding any provision in the Lease or in this Agreement, if for any reason Tenant fails to perform any obligation hereunder or under the Lease, including, without limitation, Tenant’s obligation to vacates the Premises and leaves such Premises in reasonably good condition and repair and otherwise in such condition as is required under Paragraph 6, below on or before the Expiration Date, then, in such event, the Prepayment shall be due and payable by Tenant to Landlord immediately.

            5.         Compliance with Obligations.  Tenant shall be responsible for all obligations of Tenant under the Lease through and including the Termination Date, including, without limitation, Tenant’s obligation to pay monthly rent, additional rent, utility charges and all other amounts and charges owing under the Lease.

            6.         Condition of Premises.  On or before the Termination Date, Tenant shall remove all of its trade fixtures and personal property; repair all damage to the Premises caused by such removal; vacate the Premises and leave such Premises in reasonably good, broom swept clean condition and repair and otherwise in such condition as is required under the Lease with respect to surrender of the Premises at the end of the term of such Lease; and deliver the keys to the Premises to Landlord.

            7.         Mutual Release.  By this Agreement, effective on the Termination Date and so long as neither party shall be in default under its obligations hereunder, each party hereto releases the other party hereto from all claims, demands, damages, rights, liabilities, and causes of action of any nature whatsoever, whether at law or equity, known or unknown, suspected or unsuspected, which are related or in any manner incidental to the Lease or the Premises and which first arise out of transactions and occurrences from and after the Termination Date.  Each party waives and relinquishes any right or benefit which it has or may have under applicable law regarding waiver of unknown claims to the full extent that it may lawfully waive such rights and benefits.  In connection with such waiver and relinquishment, each party acknowledges that it is aware that it or its attorneys or accountants may hereafter discover facts in addition to or different from those which it now knows or believes to exist with respect to the subject matter of this Agreement or the other party hereto, but that is such parties intention hereby fully, finally, and forever to settle and release all of the claims, disputes, and differences, known or unknown, suspected or unsuspected, which now exist or may exist hereafter between each party with regard to the Lease or the Premises.  This Agreement shall be and remain in effect as a full and complete release notwithstanding the discovery or existence of any such additional or different facts.  Notwithstanding the foregoing to the contrary, this Mutual Release is not intended to release or offset actions by either party for claims arising as a result of (i) a breach of the Lease and occurring on or before the Termination Date, (ii) a breach of this Agreement, or (iii) transactions and occurrences on or before the Termination Date.

            8.         Knowing Release.  In executing this Agreement, each party hereto acknowledges that they have consulted with and received the advice of counsel and that the parties have executed this Agreement after independent investigation and without fraud, duress, or undue influence.

            9.         Authority of Tenant.  Tenant represents and warrants that (i) it is the owner and holder of the tenant’s interest in the Lease and that it has the power, right and authority to execute this Agreement and to carry out the intent hereof, (ii) the execution and delivery of this Agreement shall not violate or contravene any agreement, contract, security agreement, lease or indenture to which Tenant is a party or by which it is bound or requires the consent of any party to any of the foregoing and (iii) the Premises, including all improvements and betterments thereto, are unencumbered, free of any security interests, liens, chattel mortgages, leases, lease purchase agreements or any other security or financing devices and, all such installations have been fully paid for.

            10.       Attorney Fees.  If any party initiates legal proceedings to enforce its rights under this Agreement, the substantially prevailing party shall be entitled to reimbursement of its reasonable attorney fees, costs, expenses and disbursements from the other parties.

            11.       Final and Complete Expression.  This Agreement is the final and complete expression of the parties.  This Agreement may not be modified, interpreted, amended, waived or revoked orally, but only by a writing signed by all of the parties hereto.

            12.       Severability.  If any provision in this Agreement is deemed invalid, then the remaining provisions thereof will continue in full force and effect and will be construed as if the invalid provision had not been a part of this Agreement.

            13.       Counterparts.  This Agreement may be executed in counterparts, each of which shall constitute an original and all of which together shall constitute one and the same document.

            Dated this        day of              , 20____.

TENANT:                                                      

                                                                        __________________________________

                                                                       

LANDLORD:                                               

                                                                        __________________________________