Can I change the locks on a tenant who is in violation of the lease and has recieved notice?
01/23/2009 - Landlord Tenant - State: MA #15045
Can you legally change the locks on a tenants apartment for non payment of rent after you have given them the 14 day notice of lease termination or do I have to go through the Summary Process Summons form and court? She owes past due amount of $900.00 and owes current rent of $700. She will not answer any of my calls or my attempts to contact her. I sent her the 14 day form but if she doesn't go, I'm not sure what to do.
A landlord must typically serve a written notice on the tenant, specifying the amount of rent owed and demanding payment in a period of time or face termination of the lease. If the tenant pays before the deadline, then the lease is not terminated. Some state statutes remove the protection of the notice period if tenant is late with payment more than a certain number of times per year. In a large majority of states, self-help recovery of possession of premises (locking out tenant or forcibly removing tenant) has been abolished. Landlords must follow the legal processes under state law to accomplish eviction of tenants. A landlord cannot forcibly evict a tenant without proper notice. The landlord must provide written notice to the tenant of the default. If the tenant does not fix the default within a reasonable amount of time, the landlord must file for a formal court eviction proceeding.
In Massachusetts, if a landlord wants a tenant out of his or her apartment permanently, the only way to evict the tenant lawfully is by getting an execution (court order to move out). A landlord cannot lock out a tenant under any but a few narrowly interpreted and exceptional circumstances. The penalties for unlawfully shutting off the tenant’s utilities or for unlawfully barring a tenant access to the apartment without an execution can be severe, running the gamut from three month’s rent, attorney’s fees, and injunctions forcing you to put the wronged tenant back in the apartment, and criminal penalties and fines in some instances.
If a landlord is evicting a tenant for nonpayment, he or she must send a 14 day notice to quit . But, if the tenant pays all monies due, plus costs, interest and the court filing fees by the date his or her answer is due in court, the tenant has an absolute right to stop the eviction. For tenants at will, if the eviction is for nonpayment, the landlord must give a 14 day notice to quit. But, if the tenant pays the amount claimed due, plus costs, interest and the court filing fees in 10 days, and if this is only the second notice to quit for nonpayment within 12 months, the tenant has an absolute right to stop the eviction. If the landlord does not place notice of this fact in the notice to quit, the tenant has a right to stop the eviction by paying the above sums not later than the date his or her answer is due in court. When the notice period ends, the landlord must serve a summary process summons and complaint on the tenant. This officially brings the tenant under the court’s power and informs him or her of the trial date, the place of the hearing, the reasons for eviction and how much money, if any, the landlord claims the tenant owes him or her.
The following are Massachusetts statutes:
G.L.c. 186, § 5. Action to recover rent; evidence.
Section 5. Such rent may be recovered in contract, and the deed of demise or other written instrument, if any, showing the provisions of the lease, may be used in evidence by either party to prove the amount of rent due from the defendant.
G.L.c. 186, § 11. Determination of lease for nonpayment of rent.
Section 11. Upon the neglect or refusal to pay the rent due under a written lease, fourteen days' notice to quit, given in writing by the landlord to the tenant, shall be sufficient to determine the lease, unless the tenant, on or before the day the answer is due, in an action by the landlord to recover possession of the premises, pays or tenders to the landlord or to his attorney all rent then due, with interest and costs of suit. If the neglect or refusal to pay the rent due was caused by a failure or delay of the federal government, the commonwealth or any municipality, or any departments, agencies or authorities thereof, in the mailing or delivery of any subsistence or rental payment, check or voucher other than a salary payment to either the tenant or the landlord, the court in any such action shall continue the hearing not less than seven days in order to furnish notice of such action to the appropriate agency and shall, if all rent due with interest and costs of suit has been tendered to the landlord within such time, treat the tenancy as not having been terminated.
G.L.c. 186, § 11A. Termination of lease for nonpayment of rent.
Section 11A. Upon the neglect or refusal by the tenant to pay the rent due under a written lease of premises for other than dwelling purposes, the landlord shall be entitled to terminate the lease either (i) in accordance with the provisions of the lease or (ii) in the absence of such lease provisions, by at least fourteen days notice to quit, given in writing to the tenant. If a landlord terminates the lease by at least fourteen days notice pursuant to clause (ii) of the preceding sentence, the tenant shall be entitled to cure on or before the day the answer is due in any action by the landlord to recover possession of the premises, by paying or tendering to the landlord or to his attorney all rent then due, with interest and costs of such action. The rights to cure provided herein, shall apply only to termination pursuant to clause (ii) and shall not apply to termination in accordance with the provisions of the lease.
G.L.c. 186, § 13. Recovery of possession after termination of tenancy at will
Section 13. Whenever a tenancy at will of premises occupied for dwelling purposes, other than a room or rooms in a hotel, is terminated, without fault of the tenant, either by operation of law or by act of the landlord, except as provided in section twelve, no action to recover possession of the premises shall be brought, nor shall the tenant be dispossessed, until after the expiration of a period, equal to the interval between the days on which the rent reserved is payable or thirty days, whichever is longer, from the time when the tenant receives notice in writing of such termination; but such tenant shall be liable to pay rent for such time during the said period as he occupies or retains the premises, at the same rate as theretofore payable by him while a tenant at will; provided, that in the case of a rooming house, an action to recover possession of premises occupied for dwelling purposes may be brought seven days after written notice if the rent is payable on either a weekly or daily basis. A tenancy at will of property occupied for dwelling purposes shall not be terminated by operation of law by the conveyance, transfer or leasing of the premises by the owner or landlord thereof or by foreclosure.
G.L.c. 186, § 14. Wrongful acts of lessor or landlord of buildings or premises occupied for dwelling or residential purposes; criminal penalties; civil remedies; jurisdiction; sections applicable to acts of reprisal, waiver in leases or rental agreements prohibited.
Section 14. Any lessor or landlord of any building or part thereof occupied for dwelling purposes, other than a room or rooms in a hotel, but including a manufactured home or land therefor, who is required by law or by the express or implied terms of any contract or lease or tenancy at will to furnish water, hot water, heat, light, power, gas, elevator service, telephone service, janitor service or refrigeration service to any occupant of such building or part thereof, who willfully or intentionally fails to furnish such water, hot water, heat, light, power, gas, elevator service, telephone service, janitor service or refrigeration service at any time when the same is necessary to the proper or customary use of such building or part thereof, or any lessor or landlord who directly or indirectly interferes with the furnishing by another of such utilities or services, or who transfers the responsibility for payment for any utility services to the occupant without his knowledge or consent, or any lessor or landlord who directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant, or who attempts to regain possession of such premises by force without benefit of judicial process, shall be punished by a fine of not less than twenty-five dollars nor more than three hundred dollars, or by imprisonment for not more than six months. Any person who commits any act in violation of this section shall also be liable for actual and consequential damages or three month's rent, whichever is greater, and the costs of the action, including a reasonable attorney's fee, all of which may be applied in setoff to or in recoupment against any claim for rent owed or owing. The superior and district courts shall have jurisdiction in equity to restrain violations of this section. The provisions of section eighteen of chapter one hundred and eighty-six and section two A of chapter two hundred and thirty-nine shall apply to any act taken as a reprisal against any person for reporting or proceeding against violations of this section. Any waiver of this provision in any lease or other rental agreement, except with respect to any restriction on the provision of a service specified in this section imposed by the United States or any agency thereof or the commonwealth or any agency or political subdivision thereof and not resulting from the acts or omissions of the landlord or lessor, and except for interruptions of any specified service during the time required to perform necessary repairs to apparatus necessary for the delivery of said service or interruptions resulting from natural causes beyond the control of the lessor or landlord, shall be void and unenforceable.
G.L.c. 239, § 1. Persons entitled to summary process.
Section 1. If a forcible entry into land or tenements has been made, if a peaceable entry has been made and the possession is unlawfully held by force, if the lessee of land or tenements or a person holding under him holds possession without right after the determination of a lease by its own limitation or by notice to quit or otherwise, or if a mortgage of land has been foreclosed by a sale under a power therein contained or otherwise, or if a person has acquired title to land or tenements by purchase, and the seller or any person holding under him refuses to surrender possession thereof to the buyer, or if a tax title has been foreclosed by decree of the land court, or if a purchaser, under a written agreement to purchase, is in possession of land or tenements beyond the date of the agreement without taking title to said land as called for by said agreement, the person entitled to the land or tenements may recover possession thereof under this chapter. A person in whose favor the land court has entered a decree for confirmation and registration of his title to land may in like manner recover possession thereof, except where the person in possession or any person under whom he claims has erected buildings or improvements on the land, and the land has been actually held and possessed by him or those under whom he claims for six years next before the date of said decree or was held at the date of said decree under a title which he had reason to believe good.
G.L.c. 239, § 1A. Land or tenements used for residential purposes; action by lessor under this chapter to recover possession; conditions and restrictions.
Section 1A. A lessor of land or tenements used for residential purposes may bring an action under this chapter to recover possession thereof before the determination of the lease by its own limitation, subject to the following conditions and restrictions. The tenancy of the premises at issue shall have been created for at least six months duration by a written lease in which a specific termination date is designated, a copy of which, signed by all parties, shall be annexed to the summons. No such action may be initiated before the latest date permitted by the lease for either party to notify the other of his intention to renew or extend the rental agreement or in any case before thirty days before the designated termination date of the tenancy. The person bringing the action shall notify all defendants by registered mail that he has done so, which notification shall be mailed not later than twenty-four hours after the action is initiated. The person bringing the action shall demonstrate substantial grounds upon which the court could reasonably conclude that the defendant is likely to continue in possession of the premises at issue without right after the designated termination date, which grounds shall be set forth in the writ. No execution for possession may issue in any such action before the day next following the designated termination date of the tenancy. Any action brought pursuant to this section shall conform to and be governed by the provisions of this chapter in all other respects and no remedy or procedure otherwise available to any party, including any stay of execution which the court has discretion to allow, shall be denied solely because the action was brought pursuant to this section.
G.L.c. 239, § 2. Jurisdiction; venue; form of writ. [EDITORS' NOTE: TEXT OF SECTION IS APPLICABLE AS PROVIDED BY 2004, 252, SECTION 23.]
Section 2. Such person may bring an action in the superior court in the county in which the land lies if the plaintiff seeks money damages and there is no reasonable likelihood that recovery by the plaintiff will be less than or equal to $25,000, or such other amount as is ordered from time to time by the supreme judicial court. Where multiple damages are allowed by law, the amount of single damages claimed shall control. Such person may bring an action in the district court in the judicial district in which the land lies.
Such person may bring the action by a writ in the form of an original summons to the defendant to answer to the claim of the plaintiff that the defendant is in possession of the land or tenements in question, describing them, which he holds unlawfully against the right of the plaintiff, and, if rent and use and occupation is claimed, that the defendant owed rent and use and occupation in the amount stated; but, subject to the approval of the supreme judicial court, the judge of the housing court of the city of Boston shall determine the form of the writ in the actions brought in his court. Failure to claim rent and use and occupation in the action shall not bar a subsequent action therefor.
G.L.c. 239, § 3. Judgment and execution; costs; appeal.
Section 3. Except as hereinafter provided, if the court finds that the plaintiff is entitled to possession, he shall have judgment and execution for possession and costs, and, if rent is claimed as provided in section two and found due, the judgment and execution shall include the amount of the award. If the plaintiff becomes nonsuit or fails to prove his right to possession, the defendant shall have judgment and execution for costs.
At least forty-eight hours prior to serving or levying upon an execution issued on a judgment for the plaintiff for possession of land or tenements rented or leased for dwelling purposes, the officer serving or levying upon the execution shall give the defendant written notice that at a specified date and time he will serve or levy upon the execution and that at that time he will physically remove the defendant and his personal possessions from the premises if the defendant has not prior to that time vacated the premises voluntarily.
The notice shall contain (1) the signature, full name, full business address and business telephone number of the officer; (2) the name of the court and the docket number of the action; (3) a statement that the officer will place any personal property remaining on the premises at the time the execution is levied in storage at a licensed public warehouse, and the full name, full business address, and business telephone number of the warehouse to be used; (4) a statement that the warehouser's storage rates may be ascertained by contacting the commissioner of public safety and the address and telephone number of such agency; (5) a statement that the warehouser may sell at auction any property that is unclaimed after 6 months and may retain that portion of the proceeds necessary to compensate him for any unpaid storage fees accrued as of the date of the auction, except as provided in section 4; and (6) a statement that the defendant should notify the warehouser in writing at the business address listed in the notice of any change in the defendant's mailing address. The notice referred to in this section shall be served in the same manner as the summary process summons and complaint and shall be filed in the court that issued the execution.
The officer shall select the public warehouser identified in the notice described in the preceding paragraph in a manner calculated to ensure that the defendant's personal property will be stored within a reasonable distance of the premises at issue in the summary process action. The officer shall not select pursuant to this section a warehouser whom the officer knows or reasonably believes to be in violation of any provision of section 4.
No execution for possession of premises rented or leased for dwelling purposes shall be served or levied upon after five o'clock p.m. or before nine o'clock a.m., nor on a Saturday, Sunday, or legal holiday.
If the underlying money judgment in any summary process action for non-payment of rent in premises rented or leased for dwelling purposes has been fully satisfied, together with any use and occupancy accruing since the date of judgment, the plaintiff shall be barred from levying on any execution for possession that has issued and shall return the execution to the court fully satisfied. If no execution has issued, the plaintiff shall notify the court of the satisfaction of judgment and no execution shall issue thereafter. If the underlying money judgment has been fully satisfied and use and occupancy fully paid, the defendant shall be considered a lawful tenant and may enforce this right through judicial process, including injunctions barring the issuance of or levying upon the execution and motions to supersede or recall the execution. Notwithstanding this paragraph, the plaintiff shall not be required to accept full satisfaction of the money judgment. Any refusal by the plaintiff to accept full satisfaction of the money judgment under this paragraph shall not be a bar to the enforcement of said judgment in any lawful manner.
G.L.c. 239, § 4. Storage of property removed; liens and enforcement; penalties.
(a) If an officer, serving an execution issued on a judgment for the plaintiff for possession of land or tenements, removes personal property, belonging to a person other than the plaintiff, from the land or tenements, he shall forthwith cause it to be stored for the benefit of the owners thereof. Such property shall be stored with the licensed public warehouser identified in the notice provided to the defendant pursuant to section 3, except that the officer shall store the property with a warehouser or other storage facility of the defendant's choosing if the defendant notifies the officer of his choice in writing at or before the time of removal of the property. The officer shall file with the court that issued the summary process judgment and provide to the defendant in hand, or if the defendant is not present at the time of execution by receipted mail to the defendant's last and best known address, a receipt containing a description of the goods removed or of the packages containing them, as well as name and signature of the officer.
(b) Any public warehouser who accepts property for storage pursuant to this section:
(1) shall be licensed and bonded pursuant to section 1 of chapter 105;
(2) shall file its current storage rates with the commissioner of public safety and shall not change such rates more than once annually, unless the commissioner of public safety or his designee gives prior written approval upon a showing of extraordinary circumstances;
(3) shall not impose charges for storage under this section in excess of the rates filed with and not rejected by the commissioner of public safety at the time of service of the notice provided for in section 3;
(4) shall not impose charges for storage under this section in excess of the fair market rates for storage facilities of similar quality in the warehouse's general locale;
(5) shall not impose charges other than those for the actual storage of goods pursuant to this section, including, but not limited to, docking fees, warehouse labor fees, administrative fees, or other similar fees imposed in addition to the storage rates listed with the commissioner of public safety;
(6) shall not impose minimum fees or otherwise charge storage fees for any period other than the period of actual storage;
(7) shall credit toward the defendant's costs of storage any amount paid by the plaintiff or other third party in connection with the storage of the property in question;
(8) shall send by first class mail to the defendant's last and best known address monthly statements of the amount of advances made and of liabilities incurred for which the warehouseman claims a lien or security interest pursuant to this section; and
(9) shall insure the defendant's property against fire and theft in the amount of no less than $10,000. A warehouser who accepts goods under this section is liable for any loss or injury to the goods caused by his or her failure to exercise such care in regard to them as a reasonably careful person would exercise under like circumstances but unless otherwise agreed or provided in this section, the warehouser is not liable for damages which could not have been avoided by the exercise of such care. No person shall be required to release a warehouser from liability as a condition of release of any stored property.
(c) The plaintiff in the summary process action shall pay the costs of removing the property to the place of storage. The plaintiff shall be entitled to reimbursement by the defendant for any costs and fees so advanced.
(d) Upon receipt of personal property under this section, a public warehouser shall forthwith, but no later than 7 days after the removal of the property from the land or tenements at issue in the summary process action, issue a warehouse receipt that complies with the requirements of section 7-202 of chapter 106. Such receipt shall contain as additional terms:
(1) a statement that the warehouser may sell any property unclaimed after six months and retain that portion of the proceeds necessary to compensate the warehouser for lawful storage fees actually accrued as of the date of the auction, except as provided in this section;
(2) a list of the warehouser's storage rates and a statement that such rates may be verified by contacting the commissioner of public safety, as well as the address and telephone number of such agency;
(3) a conspicuous statement that the defendant should notify the warehouser in writing at the business address listed in the notice of any change in the defendant's mailing address;
(4) a description of the applicable procedures for reclaiming the stored property, including, but not limited to, a statement that the defendant is entitled to reclaim items of personal or sentimental value but limited auction value once during the period of storage without payment of any fee and that the defendant shall be entitled to purchase individual items at any auction held to enforce the warehouser's lien created under this section and an identification of the publication in which any such auction will be advertised pursuant to subsection (f) of section 7-210 of said chapter 106. A duplicate copy of the warehouse receipt shall be kept on file at the place of storage and the original shall be served by receipted mail or hand delivery to the defendant at his last and best known address. The warehouser shall keep separate the goods covered by each receipt so as to permit at all times identification and delivery of those goods. A warehouser who fails to comply with the requirements of this subsection shall be liable for damages caused by the omission to a person injured thereby.
(e) Any warehouser who accepts personal property pursuant to this section shall have a lien thereon for charges for storage, insofar as such charges are imposed in accordance with this section. The lien shall not be enforced by sale or disposal of the property until it has been kept in storage for at least 6 months. Thereafter, the warehouser may enforce the lien in the manner provided for in subsection (2) of section 7-210 of chapter 106, except as otherwise provided in this section. The defendant shall be entitled to postpone the sale or disposal of his property for 3 months upon payment of one half of all storage fees incurred plus costs reasonably incurred in preparation for their sale pursuant to law. The warehouser may satisfy his lien from the proceeds of any sale or disposition under this section but must hold the balance for delivery on the demand of any person to whom he would have been bound to deliver the goods. A warehouser's failure to comply with any of the requirements of this section shall result in the forfeiture of his lien.
(f) The defendant may access his stored property once, without charge or payment of storage fees, either to inspect the property or to remove items having primarily personal or sentimental value, or both. Items having primarily personal or sentimental value, shall include but not be limited to photographs, passports, documents, funeral urns, and the like. All personal property stored under this section may be reclaimed at any time upon payment of all storage fees lawfully owed by the defendant. If the property is sold at auction, the defendant shall be entitled to purchase the property in bloc or in parcels, regardless of the terms of the public sale. The failure of any third party to pay monies owed by him to the warehouser shall not affect the rights of the property owner to reclaim property under this subsection.
(g) A warehouser who violates this section shall pay a civil penalty of not more than $5,000, in an amount to be determined by the commissioner of public safety after notice and an opportunity for an adjudicatory hearing under chapter 30A. The commissioner or his or her designee may at any time conduct an inspection of a public warehouse storing goods under this section for the purpose of assessing compliance with applicable health and safety codes and the requirements of this section. The commissioner may reject the rates filed by a warehouser for storage pursuant to this section if the commissioner determines that such rates are not commercially reasonable or otherwise violate this section. The failure of the commissioner to reject a warehouser's rates shall not create a presumption that such rates are commercially reasonable for purposes of liability under chapter 93A or this section.
(h) Notwithstanding any civil penalty imposed pursuant to subsection (g), the defendant may petition the court in which the summary process action was heard for damages or injunctive relief in connection with any violation of this section. A violation of this section shall also be a violation of section 2 of chapter 93A.
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01/23/2009 - Category: Landlord Tenant - State: MA #15045
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