I.    Introduction

An eviction under Section 19 of Chapter 139 of the Massachusetts General Laws is the fastest eviction process available. This expedited procedure applies only in the following circumstances:
 
1.   If a Resident, and/or an authorized or unauthorized household member¹ has committed, in the Resident's building where the Resident lives any unlawful activity described in "a-j" below:
 
            a.    Prostitution,
            b.    Assignation (meetings for the purposes of illegal sexual activities),
            c.    Lewdness (illegal sexual activity, including exposure),
            d.    Illegal gambling,
            e.    Illegal keeping or sale of alcoholic beverages
            f.    Habitually serving alcoholic beverages to persons already intoxicated,
            g.    Serving alcoholic beverages to persons whom the Resident or occupant knows or has reason to know will operate a motor vehicle under the influence of intoxicating liquor,
            h.    Illegal keeping, sale or manufacture of controlled substances, as defined in Section 31 of Chapter 94C of the Massachusetts General Laws,
            i.    Illegal keeping of a weapon in violation of Section 10 of Chapter 269 of the Massachusetts General Laws, or
            j.    Possession or use of an explosive or incendiary device or other violations of Sections 101, 102, 102A or 102B of Chapter 266 of the Massachusetts General Laws.

2.      If a Resident, or an authorized or unauthorized household member, commits an act or acts which would constitute a crime involving the use or threatened use of force or violence against the person of an employee of the housing authority or against any person while such person is legally present on the property of the housing authority.

Proper documentation of every stage of the cause eviction process is crucial to a successful eviction. The forms to be used for each type of eviction case are designed to satisfy the requirements of state and federal regulations and the Boston Housing Court and should not be altered. The forms should not be modified by any Manager without authorization from the Legal Department. Unauthorized modifications could cause the BHA to lose its eviction case in court.
 
Please remember that all notices directed to the Resident should be addressed to the Resident whose signature is on the lease. If the lease has more than one signature, the notices should be addressed to each person who signed the lease, regardless of whether the Manager believes that such person no longer resides in the unit. Notices should be delivered to the Resident(s) in the manner most likely to reach him/her as fast as possible to minimize delays in the eviction process. In-hand delivery is always the preferred method for delivering any notice to the Resident. However, alternate methods are available should in-hand delivery not be possible. The notice may also be left under the Resident's door and sent by first class mail or certified mail. Experience has shown that certified mail can cause delays in the process as it is often not picked up by the Resident. Whenever a notice is delivered by either method of mail service, the Manager must allow additional time between steps in the process to ensure that the Resident has possession of the document for the prescribed period of time before the Manager proceeds to the next stage of the eviction process. If the Manager knows of either a post office box or a forwarding address for a Resident, notices should be sent to that address as well as the Resident's address at the BHA property. Evidence of delivery must be made on the section of the document entitled "Certificate of Service" on the copy retained in the Resident's file. The Certificate of Service must be signed by a permanent BHA employee. 

II.   The Private Conference

In all cause eviction cases, the first phase of the process after receiving complaints of lease violations is to hold a private conference with the Resident. After the Manager has determined to use the M.G.L. Ch. 139, § 19 eviction procedure, the Resident receives a written Notice of Private Conference. The Manager should make notes regarding what was said at the private conference and keep them in the Resident's file. If the Manager does not intend to begin eviction proceedings, a written summary of private conference is not necessary, but may be helpful in a future case.
 
If the cause eviction is based on allegations connected with a criminal proceeding, the Manager should start the eviction process immediately and not wait for the outcome of the criminal proceeding.
 
Although the Legal Department may assume responsibility for a complicated eviction case from the onset if the Manager seeks legal assistance, generally the Manager of the development where the Resident resides will conduct the private conference. However, another Manager may be asked to hold the conference under unusual circumstances (such as an assault on a Manager).
 
The Notice of Private Conference details the facts and/or incidents upon which any eviction action will be based. Therefore, it must be filled in accurately and completely. Witnesses should not be identified by name, but rather by type; i.e., Resident, BHA employee, Boston Police, etc. The Notice of Private Conference should be sent within a short period of time prior to the conference. Such period may be shorter than twenty-four hours, depending on the urgency of the circumstances of each case. In cases where the Resident indicates that the scheduled time is not convenient, the Manager shall reschedule the private conference to another time on the same date. If unusual circumstances arise that may justify a different date for the private conference, the Manager should consult with the Legal Department.
 
The Resident may bring a representative to the Private Conference. Generally, only the BHA employee conducting the conference will represent the BHA. If you believe that the presence of any other person is necessary, please consult the Legal Department. At the conference, although the Resident may elect to remain silent, the Manager should encourage participation in order to obtain as much pertinent information as possible. In conducting the Private Conference the Manager should:
 
      A.    Briefly describe the allegations and complaints to the Resident.
 
      B     Ask the Resident if the allegations and complaints are true, and if the Resident has any explanation.
 
      C.    Encourage the Resident to ask questions and make statements in defense or provide an explanation.
     
      D.    Describe the eviction procedure (including the private conference and the court process) to the Resident.
 
      E.    Prepare a Summary of the Private Conference (Form 139-02) immediately following the meeting.
 
Remember: The Manager is not required to "prove" the case at this stage. The Manager is not required to inform the Resident that he/she may remain silent (this information is contained in the Notice of Private Conference), and the Manager is not required to reveal the names of witnesses or informants. 

III. Decision Resulting from Private Conference

Based upon the information provided at the private conference, the Manager will determine whether or not to proceed with an eviction.
 
A.    If the Manager decides not to proceed with eviction
 
       1.    The Manager should attempt to reach an agreement with the Resident using Form 139-03. If the Resident later breaks any of the terms detailed in the written agreement, the BHA may have an easier time proving its case in court.
 
       2.    The Manager should have Summary of Private Conference (Form 139-02) and agreement (if any) delivered to Resident, and sign the corresponding Certificates of Service on file copies.
 
       3.    Maintain a copy of the Summary of Private Conference (Form 139-02) and the agreement (Form 139-03) if one was executed in the resident's file along with the copy of the Notice of Private Conference (Form 139-01).
 
B.    If the Manager decides to proceed with the eviction
 
       1.    The Manager should prepare a Notice of Termination for Cause (Form 139-04) and the Factual Statement for Cause Eviction (Form 139-05), and have them delivered to the resident while retaining copies with executed Certificates of Service for the Resident's file.
 
       2.    The Manager completes the Manager's Checklist and the Legal Transmittal Memorandum (Form 139-06).
 
       3.    The Manager sends the case to the Legal Department including copies of all the documents listed on the Transmittal Memorandum. 

IV    Court

A.    The Legal Department will represent the BHA in the court proceedings. All evictions will be brought in the Housing Court Department, City of Boston Division.
 
B.    After the Legal Department receives the Notice of Termination for Cause (Form 139-04), and the Manager has delivered the entire case, the Legal Department will file the appropriate action in Court. The Legal Department will inform the Manager of the court action taken. In some cases, the action will be to have a constable serve the Resident with a summary process summons and complaint. The summons and complaint will state the date the Resident must appear in court.
 
C.    If the Resident fails to appear in court, a default will enter and the BHA should win the case. An execution will be sent to the Legal Department within a few weeks. The Legal Department will notify the Manager, and send the execution to a constable, who will evict the Resident.
 
D.    If the Resident appears in court the BHA attorney will try to negotiate an agreement with the resident to settle the case. In most cases the proposed agreement will give the Resident a reasonable time to voluntarily vacate the premises. In very few cases the Resident will be allowed to remain on the condition that a household member not be allowed to reside or visit at the premises. The terms of the agreement to be proposed will be determined by the Manager and the assigned attorney.
 
E.    If an agreement is reached, it is put into writing and signed by a judge of the Housing Court. The agreement is legally binding and settles the case.
 
F.    If an agreement cannot be reached, a trial will be scheduled. The assigned attorney will have very little control over this scheduling. An attorney representing the Resident will usually delay the trial as long as possible.
 
G.    After the trial is held, the judge may take weeks or even months to write a decision. Once a decision is rendered, the resident has ten days to appeal if the decision is favorable to the BHA. If the decision is favorable to the Resident, the BHA will likewise have ten days to file a Notice of Appeal. If there is no Notice of Appeal, an execution will be sent to the Legal Department. The Legal Department will send the execution to a constable, who will evict the Resident.
 
H.    If there is an appeal, the Resident may in certain cases remain in the premises until the appeal is decided. If the Resident appeals, the BHA may proceed with the eviction before the appeal is decided. Tenants have an absolute right to appeal. An appeal can take a year or two to be decided. Sometimes an appeal may take longer. If there are times that, after a Resident loses at trial, the Resident simply wants time to move, usually the BHA will agree to give the Resident a reasonable time to move if the Resident agrees not to appeal the case. 

V.    Executions

When the Legal Department receives an execution the Manager will be notified and the execution will be sent to the constable. The constable will serve the Resident with a forty-eight hour notice that the constable will levy on the execution. The Constable will provide the Manager with a copy of the notice served on the Resident. The constable will subsequently check with the Manager to find out whether the Resident has vacated the premises. If the Resident has not vacated, the constable will evict the Resident. The Manager should arrange to have the lock changed and, if necessary, to have Public Safety personnel present.
 

Detailed Procedures for Cause Evictions under Section 19 of Chapter 139 of the Massachusetts General Laws

 

Manager	1. Receives and investigates complaints suggesting illegal activities covered under this section of the law.    2. Schedules a Private Conference, and begins documentation on Manager's Checklist.    3. Prepares "Notice of Private Conference" (Form 139-01) and has it delivered to Resident.    4. Completes Certificate of Service on copy of notice, and files the document in the tenant's file.
Tenant	5. Receives notice of private conference. 6. Determines if time and location are acceptable. 7. If not, calls Manager to reschedule.
Manager and Tenant	8. Attend Private Conference and discuss all aspects of the allegations, and the eviction procedures.
Manager	9. Determines whether or not to proceed with eviction action. 10. If the decision is not to evict, attempts to get tenant to sign a written agreement (Form 139-03). 11. Prepares Summary of Conference (Form 139-02) even if tenant fails to attend the meeting. 12. Delivers Form 139-02 to tenant, and executes Certificates of Service on copies for tenant's file. 13. Updates Manager's Checklist. 14. If the decision is to proceed with the eviction, prepares "Notice of Termination for Cause" (Form 139-04), and "Factual Statement for Cause Eviction" (Form 139-05). 15. Has Forms 139-04 and Form 139-05 delivered to tenant, and executes corresponding Certificates of Service on the copies retained for the tenant's file. 16. Updates Manager's Checklist. 17. Prepares "Memorandum of Transmittal for Cause Eviction Under M.G.L. c. 139 section 19 (Form 139-06), and attaches copies of all documents detailed on the memo. 18. Forwards the case file to the Legal Department.
Legal Department	19. Reviews case to determine that all documentation is in order. 20. If the file is incomplete, contacts the Manager to resolve the problem. 21. Determines court date and prepares summary process summons and complaint. 22. Has summary process summons and complaint delivered to tenant by constable.
Housing Court	23. If tenant fails to appear in court, BHA wins the case and the court sends the Legal Department an execution within a few weeks. 24. If BHA attorney and tenant reach an agreement, the terms of which were determined by the assigned BHA attorney and the Manager, a judge of the Housing Court signs the written agreement making it legally binding. 25. If no agreement is reached, schedules trial.
Legal Department	26. Presents BHA case for eviction
Tenant and/or Tenant's Attorney	27. Presents defense.
Judge of Housing Court	28. Renders decision.
Legal Department	29. If the decision is in favor of the tenant, determines within 10 days whether to appeal the decision.
Tenant	30. If the decision is in favor of the BHA, determines within 10 days whether to appeal the decision.
Legal Department	31. If the decision is in favor of the BHA and the tenant does not appeal, receives an execution from the Housing Court.    32. Notifies Manager and sends execution to a constable.
Constable	33. Notifies the tenant that he/she must vacate the premises by a specified date.
Constable or Assigned Attorney	34. Verifies with Manager that tenant has vacated premises.
Constable	35. If the tenant has not vacated the premises, evicts.
Manager	36. Arranges for the locks to be changed.    37. If tenant has not removed property from the unit, arranges for property to be moved into storage.    38. Responds to any inquiries regarding stored properties of the evicted tenant.

 

Further Forms for Manager Use

Manager's Checklist For Cause Eviction
Non-Military Affidavit


 ¹What about guests? Recent Housing Court decisions have said that a landlord cannot bring an eviction action under M.G.L. c. 139, sec. 19 for a guest's conduct. Contact your regional attorney if you have questions about whether a person is a guest or an unauthorized occupant before starting an action under M.G.L. c. 139, sec. 19. Please note that the BHA can seek a tenant's eviction for the conduct of his/her guest under another statute, M.G.L. c. 121B, sec. 32, par. 6 (8). Please refer to Section 3 of the Manager's Manual for an explanation of that statute.