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hi everyone my name is ben cody and i'm an attorney at styles law and this week i wanted to put together a video that explains how to terminate a tenancy in massachusetts this is the beginning of the eviction process goes over some of the most important details identify some pitfalls as well as some of the changes in the law due to covet 19 and some of the laws that have been passed so let's get started we have some common sense items we have to go over first so this is for informational purposes only this isn't legal advice i'm not your lawyer unless we sign a fee agreement and i have the facts of your case to give you legal advice the presentation relates to massachusetts law only so if you're in a different state your laws are going to differ and you'll have to take a different approach and this law area of law is changing rapidly there are laws passed at both the state level and at the federal level that affect how to terminate a tenancy and how an eviction will proceed so do your own research and make sure that this information is still accurate if you're watching this some time after i've uploaded it so what is a notice to quit uh it's basically a notice from a landlord that it shows the intent of the landlord to terminate the tenancy and gives instructions to the tenant to vacate a notice to quit in massachusetts doesn't require any sort of special magical language it doesn't have to have any sort of buzzwords it doesn't have to be identical to every other notice equipped but it does have to be accurate in the sense that it can't be reasonably misunderstood so for example in a notice to quit we don't have to name a specific date so if we're trying to terminate a tenancy in march march 31st we can say the end of your next rental term which is the same thing as march 31st and that's usually a good idea because it prevents a situation where you might have a typo or a mistake in your date calculation so for a 30-day notice often times we'll just put in at the end of the next rental period the notice must be unequivocal so this is pretty simple it basically means you can't send a letter that says you must leave the premises but let's negotiate or but if you do this then you don't have to leave it has to be unequivocal in its statement that the tendency is terminated on a date certain um and the tenant has to move out so one of the most important things with a notice to quit is an idea of timeliness so it means two different things one it must comply with massachusetts law for the amount of time that the tenant is given we've already talked about that a little bit but then also the notice must be delivered in a timely manner so let's talk about a non-payment case so you must give tenants 14 days or whatever is in the lease but usually it's 14 days under the statute is the minimum that you have to give in terms of notice i always add a day or two at the end just to make sure that there's no argument that i've cut off time and actually given them less than a full 14 days and you'll see why when we talk about this case in a second most other reasons that you'd give a notice to quit so that'd be things for a fault-based eviction so for instance if the tenant is violating the terms of the lease or breaching a quiet enjoyment of other tenants or has damaged the property something along those lines that's a 30-day notice uh and really it's an entire rental period uh there's exceptions to that but the bare minimum under the statute is uh 30 days or a full rental period the case that i want to talk about on this point is conor's v wick and basically what happened was is the landlord and this is an old case but landlord tenant law has been around forever and sometimes the old cases uh are still uh something that we look at so the landlord gave notice on the first day of the month and told them to leave on the last day of the month and the court found that that wasn't actually 30 days notice they have to give them a full 30 days not first day of the month to the last day of the month it would have to be the last day of the previous month to the last day of the next month and so that's how technical this timeliness gets if you're off by a day you're going to have to start over and essentially give a new notice so i have clients or prospective clients that'll call me on the last day of the month or the last friday of the month in the afternoon and they say all right i want to send a notice to quit and a lot of times i have to break it to them that it's even if we could get a constable to serve the notice to quit um they might not get it by the the the last day of the preceding month and we might have to wait an entire month if we're relying on a 30-day notice so thinking about timeliness is really about organization making sure that you have your documents prepared and ready to be served so that they can get to the tenant when they need to be delivery date is really important as well so that must be that's what we're talking about so it's the plaintiff's burden to actually prove when the notice was given so i've had some clients that are surprised to find out that mailing the notice to quit ordinary first-class mail isn't sufficient um you actually need to have proof that they received it i suppose the defendant in a later eviction proceeding might agree that they received it and the honest ones hopefully would but it's easy for them to say oh yeah i never got it and in that case you're stuck because one of the elements of an eviction case you have to prove is that the tenant actually received the notice to quit so there's really two ways you can do it the first one is certified mail with the return receipt so if they sign the return receipt and you bring it to court with your notice to quit that's that's sufficient proof that they receive the notice um the best practice and what i always do is i serve by constable or sheriff when that happens there's a presumption of service that's irrebuttable so if the constable says that they handed the the tenant the the document or they left it at their last unusual place of abode which is the technical term for they left it at their front door as long as we have that return signed by the constable it prevents the tenant from actually coming back and saying oh well i never actually got it so that's that's how i usually do it it's cheap money to get that part of our eviction out of the way and really beyond reach for saying that they never got it there are some other issues we should talk about one of the the best situations is if the let's say the lease is for a year and you're coming up on the year anniversary and the tenant doesn't move out you actually don't need a notice to quit the the end of the lease was the tenant's notice to leave uh so long as you don't accept another rent payment or take some other act which would create either a new tenancy or it would convert their existing tenancy to a month to month i usually give what's called a 72-hour notice to quit just to be sure it's not required but having that notice is helpful especially for the court process it's it's unusual not to have a notice quit and i think it's just good for him to have it it's not required but it is good for him to have it and then occasionally this will come up if there's the death of a party uh there's actually no statutory duration of the notice that's required so as long as you're giving notice that the tendency is terminated as long as you give simple notice that's enough you don't have to give 72 hours you basically just give a notice that says this person's died tenancy's over that's it so 2020 and 2021 have changed things considerably i'm not going to go over the massachusetts eviction moratorium that has since expired in the end of 2020 but there are some changes at the state level that are still affecting evictions right now the first one is bill 5181 it was signed on december 31st of 2020 and has a lot of requirements for non-payment notices to quit so you have to include a copy of the cdc attestation um which is titled the temporary halt and residential evictions so a lot of people will call this the cdc affidavit and we've probably all seen it it's been all over the news basically the centers for disease control put out a regulation or a new rule that stopped evictions uh for non-payment of rent if certain conditions are met so for instance if it's an individual and they make less than a hundred thousand dollars if they swear that they've made best efforts to get public accommodations if uh they say that they would be made homeless or they would have to live with somebody else this is all designed to spread stop the spread of the virus but what it does is it stops evictions from happening if that affidavit is served to the landlord this only applies in non-payment of rent cases which we'll get to in a second but massachusetts actually requires that the landlord tell the tenant about that protection so they're gonna get a copy of the attestation they're gonna get an attestation from the landlord which says whether it's a covered dwelling under the cares act which is relevant for something we're going to talk about in a minute uh documentation about agreements between the landlord and the tenant to repay the landlord so if there's any sort of settlement agreement or if there's something in writing where the tenant says yeah i'm going to repay x amount per week they have to also include a copy of that additionally they have to include information about rental assistance including programs including raft so raft is basically a massachusetts program that helps tenants that are unable to pay their rent come current and in exchange to the landlord agrees not to evict the tenant for a certain amount of time they also have to provide information about court rules and standing orders relevant restrictions on residential evictions at the state and federal level so if there's a new federal law that says you can't evict people for non-payment of rent if there's a new statute you have to tell the tenant about it and you have to give them a very bold all-caps notice that says that it's not an eviction you do not need to immediately move uh you have rights a court order can force you to leave and that's it um so basically you're telling the tenant all the way all the best ways for the tenant to avoid being evicted which is good protection and so i'm not going to take a position whether this is a good idea or a bad idea i think this is an unprecedented time and we're just trying to do the best we can but as a landlord this is a difficult notice to send because you're essentially telling the tenant how to defeat uh your eviction and how to to prevent you from actually regaining possession of the property through court process additionally on top of all that you have to send notice that you filed or that you served a notice to quit for non-payment of rent to the executive office of housing and economic development so my understanding is that this is to help the state understand how many notices to quit are being served and it also gives information so that the state can reach out to tenants in appropriate cases beyond that we have the cares act so this is at the federal level so the cares act only deals with covered properties so that's a property that meets uh that gets certain federal assist or is part of certain federal assistance programs or is subject to a federally backed mortgage loan or a multi-family mortgage loan so the landlord has to be sure to look and see whether their loan is federally backed i would say it's extremely unlikely that you don't have a federally backed mortgage if you got what's called a residential loan or you didn't go through a commercial bank commercial banks usually hold their properties portfolio they don't have federal backing but i would say the vast majority of investment properties in massachusetts are going to be considered covered dwellings so uh the cares act requires that the person be given uh 30 days notice and it also prevents any sort of penalties or late charges uh during the moratorium period so the upshot of all this is the 14-day notice to quit is extremely rare right now the only time you'd really see that is if it was not a federally backed mortgage that was securing the property so if the landlord owns the property without a mortgage or they got a loan from a commercial bank they would be able to give a 14 day notice but even then you would still have to give all the the notices that would tell the tenant how to defeat your eviction proceeding so these days the tips that i've been giving my clients really start with don't get creative so i have no problem sharing my forms with my clients i like to share my leases i like to share my notices to quit because ideally when they get to a point where they need my help it's the documents i would have drafted anyway it makes my life a lot easier so if i know the lease is valid if i know that it complies with whatever law applies at the time it makes everything easier to go forward with an eviction so i i would strongly suggest you don't just find something off the internet it might not be tailored to massachusetts it might not have what you need so at the end i'll talk about how you can get in touch with me to get a copy of that form include the required notices and attachments under mass law and federal law so this is really important if you don't include all the required notices the notice to quit may be deemed invalid and you'd have to start over so you give them 30 days notice you've waited anywhere from 60 to 30 days depending on when you serve it you then serve them with the summons and complaint you wait a week you file it with court the earliest it could happen is about a week after that usually it's more like three to six weeks you get to court and the judge says uh you actually don't even see a judge on your first hearing if you get to a first hearing now because it is a 14-day notice to quit you could be several months down the line before you're you're told you have to start over and then that that's a really tough situation for a landlord to be in especially if they're in a position where their tenants aren't paying and they need to pay the mortgage themselves so that really can be the difference between having a property that performs and one that you might not be able to keep the last point and i think this is one of the most important things i'm going to talk about today is consider terminating the tenancy for another reason other than non-payment of rent so what does that mean if the tenancy is terminated or if the tenancy ends so suppose i'm filming this in the end of february of 2021 if the tenancy ends on february 28th that's great let's just wait until march first we'll serve a 72-hour notice to quit if you're not lucky if you're six months into a 12-month term i would strongly consider trying to find a violation uh to hang your hat on and it's not always possible but if your tenant is doing things that they shouldn't under the lease so if the lease says no smoking and you have evidence of them smoking you have a video of it or you see cigarette burns in the carpet that weren't there or their cigarette butts all over the apartment when you're in there that could be enough to actually go forward with a what's called a fault-based eviction you still have a 30-day notice to quit but you can actually terminate the tenancy and since it's not for non-payment of rent the cdc moratorium doesn't apply the karazak doesn't apply none of the notices that we talked about apply and it really just makes things a lot easier the one thing i would caution is there's a little bit of uncertainty the the way that i uh interpret the statute and i think the way that i've heard some judges talk about this uh your notice of quit could be let's say you gave them a 72-hour notice to quit because the term of their tenancy has expired just because that's what you write in the notice to quit that doesn't mean what that's what the law will consider your reason for eviction so if you say i'm terminating because your lease expired but then you turn around and ask for ten thousand dollars in unpaid rent the court is going to treat it as though you're proceeding fora non-payment of rent case and all those rules will apply and basically you're not going to be able to proceed if they give you that cdc affidavit so what a lot of people are have decided to do is either write off that loss and say i understand i'm not going to get paid the tenant probably doesn't have the money otherwise they would be paying it and then if at some point in the future i want to actually proceed through small claims court or the district court we can do that at a later point but let's just get possession back and rent this property to the next tenant so i just wanted to talk briefly about how i meet with my clients i'm a little bit different than a lot of attorneys so rather than just calling me and getting an appointment right away or meeting with me in person i ask all my prospective clients to take a 10 minute questionnaire it's really simple it's questions like you see on the right hand side so name address city state it asks you about your tenant why you want to evict them if you have a copy of the lease you can upload it if you have a copy of a notice to quit if you've already served one you can upload that we meet electronically and you schedule it automatically after you take the questionnaire so i mean over zoom or telephone we talk about your goals what your pain points are we talk about a strategy and then i quote you for what i think the it's actually going to take to to do this eviction so it's almost impossible to do evictions on a flat fee in a way that's fair to either party i'm either going to have to pick a huge number uh to make sure that if this gets dragged out for six months it's worth my time and on the flip side you probably don't want to take that risk so what i've done with all my clients is i bill by the hour um and usually we can come to some range where it's what it's likely to cost but that's unfortunately how i think most practitioners in this area are proceeding right now my first consultation is always complimentary so you're not going to receive a bill until you sign a fee agreement and we don't i try to keep as much paper in the printer as possible i don't like to print things so everything is signed electronically and it can be a pretty quick process so within a day we can start working on documents uh which can be really helpful for for ten landlords that might need to have documents served quickly so in the description of this video you'll see a couple links one is for that questionnaire and then the other is to actually schedule a consultation so if you do need help you're more than welcome to contact me um i've given you my email address and my telephone number so feel free to reach out to me if you just need the forms so if you said uh ben i just need the notice to quit for a 30 day um i'm i'm fine with that i'm here to help and i think at some point if you do need help you're likely to call me back so it's all good so if you have any questions please reach out otherwise it's been a pleasure if you like the video if you could give me an upvote that would be that would be really helpful consider subscribing to our channel and i hope to talk to you in the future you
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