I. Introduction
The non-grievable M.G.L. ch. 121B, § 32, ¶ unnumbered paragraph 7, cause eviction process is used whenever a Manager wants to evict a Resident or an occupant under a Use and Occupancy Agreement, for reasons stated in M.G.L. ch. 121B, § 32, ¶ unnumbered paragraph 7, which are not also covered by Mass. G.L. ch. 139, § 19. If the facts fall under both ch. 139, § 19, and ch. 121B, § 32, ¶ unnumbered paragraph 7, the Manager should use the ch. 139, § 19, procedure.
Proper documentation of every stage of the cause eviction process is fundamental 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 the Manager without authorization from the Regional Counsel. Unauthorized modifications could cause the BHA to lose its eviction case in court.
In cases where conduct by the Resident, his/her household members, or his/her guests is serious, but does not qualify for treatment as a statutory nuisance under M.G.L. ch. 139, § 19, a speedy court hearing may be available under M.G.L. ch. 121B, § 32, ¶ unnumbered paragraph 7. The Manager should first review the case to determine if M.G.L. ch. 139, § 19, applies. If it does not, then the Manager should review the criteria to determine if M.G.L. ch. 121B, § 32, ¶ unnumbered paragraph 7, applies. If any of the following conduct occurs, then the cause eviction process under M.G.L. ch. 121B, § 32, ¶ unnumbered paragraph 7, should be commenced:
1. If the Resident or a member of the Resident's household has:
(a) on BHA property:
(i) unlawfully caused serious physical harm to another Resident or an employee of the BHA, or any other person lawfully on the premises of the BHA;
(ii) threatened to seriously physically harm another Resident or a BHA employee, or any person lawfully on the premises of the BHA;
(iii) destroyed, vandalized or stolen property of a Resident or the BHA or any person lawfully on the premises of the BHA, thereby creating or maintaining a serious threat to the health or safety of a Resident or an employee of the BHA or any person lawfully on the premises of the housing authority;
(iv) engaged in other criminal conduct which seriously threatened or endangered the health or safety of another Resident, an employee of the BHA, or any other person lawfully on the premises of the BHA.
(b) on or adjacent (next to, very close to) to BHA property:
(i) possessed, carried or illegally kept a weapon in violation of section ten of M.G.L. ch. 269 or possessed or used an explosive or incendiary device or violated any other provisions of M.G.L. ch. 266, §§ 101-02B (which involve illegal weapons and bombs);
(ii) possessed, sold or possessed with intent to distribute a controlled substance as defined in classes A, B, or C of M.G.L. ch. 94C, § 31 (serious drugs such as heroin, cocaine, or amphetamines);
2. If a guest of a Resident or of a household member of a Resident engages in any of the behavior listed in (a) or (b) above, where the Resident knew or should have known that there was a reasonable possibility that the guest would engage in misconduct.
An act takes place adjacent to BHA property if the location abuts, is contiguous with, or proximate or close to BHA property.
Once a Manager decides that a Resident is in violation of his/her lease in a manner that meets the speedy eviction requirements of M.G.L. ch. 121B, § 32, ¶ unnumbered paragraph 7, the Manager should commence processing the eviction. A checklist for the non-grievable M.G.L. ch. 121B, § 32, ¶ unnumbered paragraph 7, eviction process is included in this Manual after the Procedures for Non-grievable Cause Evictions under M.G.L. ch. 121B, § 32, ¶ unnumbered paragraph 7 to insure that all documents are processed in proper sequence and within the designated timeframes. If the Manager has any questions about policy or procedure during any stage of the eviction process, he/she should seek guidance from the Regional Counsel to ensure the case will hold up in court. Furthermore, Residents should not be transferred if a cause eviction is pending. If a Resident has to be transferred during the process (i.e., due to an emergency such as fire), the Regional Counsel should be consulted before the transfer is completed. Any eviction action for an occupant under an Agreement for Judgment, whether or not there is a direct violation of the Agreement, should be referred to the Regional Counsel on Form 121B-07 before any other action is taken by the Manager.
At times, there is more than one reason to seek eviction of a Resident. In addition to non-payment of rent, there may be a cause case pending1. For example, a household member is arrested for selling drugs on BHA property after a non-payment eviction has been initiated. There are also times when a Resident ceases to pay rent after receiving a Notice to Quit for cause. At other times, a Resident or household member will commit another cause lease violation after a cause Notice to Quit has already been served on the Resident. It is possible that at or about the same time, a Resident or household member will commit various lease violations, some of which fall within M.G.L. ch. 139, § 19, and others of which do not. There are many other possibilities.
The decision of whether and when to initiate a second eviction case must be based on a case by case determination. Whenever there are multiple causes for eviction and the first case has been forwarded to the Legal Department, the Manager must inform the Regional Counsel of any case that is initiated while another case is pending. The Regional Counsel should be consulted before the Manager serves the second Private Conference Notice.
Additionally, all notices directed to the Resident should be addressed to the Resident(s) whose signature(s) is (are) on the lease. If the lease has more than one signature, the notices should be addressed to each person who signed the lease. In the case of an occupant under an Emergency Transfer Use and Occupancy Agreement, all Notices should be addressed to both the prior address from which the occupant transferred and the current address where he/she now resides. Notices should be delivered to the Resident(s) in the manner most likely to reach him/her/them in the quickest time frame, in order 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. In-hand delivery can be to the Resident or any adult present in the apartment. The notice may be left under the Resident's door and sent by first class mail or sent by certified and first class 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 insure 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, mailed notices should be sent to that address rather than 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.
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. 121B, § 32, ¶ unnumbered paragraph 7, non-grievable procedure, the Resident receives a written Notice of Private Conference, Form 121B-01. Notes should be made regarding what was said at such a meeting and kept 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 Regional Counsel 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 generally conduct the private conference without the Regional Counsel being present. However, another Manager may be asked to hold the conference under unusual circumstances (such as assault on a Manager, or if the Resident has been rehoused after a fire).
The Notice of Private Conference (Form 121B-01) 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 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 should 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 Regional Counsel.
The Resident may bring a representative to the Private Conference; however, only the Manager conducting the conference should be present, along with the Regional Counsel if requested by the Manager in a special case. No witnesses should be present. 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 explanation.
D. Describe the eviction procedure (including the private conference and court process) to the Resident.
E. Prepare a Summary of the Private Conference (Form 121B-02) immediately following the meeting.
If after the private conference a Manager feels additional investigation is necessary to go forward, the Manager should contact the Regional Counsel.
Remember: The Manager is not required to "prove" the case at this stage. The Manager should forward the case to the Legal Department for processing for eviction if, after the private conference, there is probable cause to believe a lease violation has occurred. If, after the private conference, a Manager feels additional investigation is necessary to go forward, the Manager should contact the Regional Counsel. 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 121B-03. If the tenant later breaks any of the terms detailed in the written agreement, the BHA may proceed to the grievance panel or directly to court, depending on the circumstances, without need for an additional private conference. The Manager should consult with the Regional Counsel to verify that the violation of the agreement warrants immediate service of a Notice to Quit or whether another private conference should be held. In general, if there is no special reason for expediting the process, a new private conference should be held.
2. The Manager should have a conference summary (Form 121B-02) and agreement (Form 121B-03) delivered to Resident, and corresponding Certificates of Service executed on file copies.
3. The Manager should maintain a copy of the conference summary (Form 121B-02) and the agreement (Form 121B-03) in the Resident's file along with the copy of the Notice of Private Conference (Form 121B-01).
4. If the Resident violates the Agreement, the Manager should prepare a Notice of Termination/Notice to Quit (Form 121B-04) with Factual Statement (Form 121B-04A) stating as the nature of the incident: "Violation of Management Agreement dated: ____________ and of the lease as follows: _______________________________ " and making sure to include the basis of the initial private conference in the section for prior similar incidents. The Manager may send a new private conference notice to the Resident for a violation of a management agreement if the Manager feels the meeting will be useful but the Manager need not do so.
B. If the Manager decides to proceed with the eviction
If the eviction does not fall under Section 19 of Chapter 139 of the Massachusetts General Laws, but does fall under unnumbered paragraph 7 of Section32 of Chapter 121B of the Massachusetts General Laws:
1. The Manager should prepare a Notice of Termination/Notice to Quit for Cause (Form 121B-04) and the Factual Statement for Cause Eviction (Form 121B-04A), and have them delivered to the Resident while retaining copies with executed Certificates of Service for the Resident's file. In certain situations of particular urgency, non-grievable cases under M.G.L. ch. 121B, § 32, ¶ unnumbered paragraph 7, may use a shorter Notice to Quit period than the thirty-day period used in the standard forms. If a Manager believes that a particular case is such an urgent matter, the Manager should contact the Regional Counsel regarding the appropriate notice period.
2. The Manager completes the Manager's Checklist located after the Procedures for Non-Grievable Cause Evictions under M.G.L. ch. 121B, § 32, ¶unnumbered paragraph 7, and the Legal Transmittal memorandum (Form 121B-06).
3. The Manager sends the case to Legal Department including copies of all documents listed on the Transmittal Memorandum.
IV. Court
A. The Regional Counsel will represent the BHA in all court proceedings for cause evictions. All cause evictions will be brought in the Housing Court Department, City of Boston Division.
B. After the Notice of Termination/Notice to Quit (Form 121B-04) expires, the Regional Counsel will 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. The Regional Counsel will notify the Manager of the date of the trial. If the Resident files a discovery request, the trial date is automatically postponed for two weeks. The Manager should check with the Regional Counsel before appearing in court to verify that the case will be heard that day. It is the Manager's responsibility to appear in court on the day assigned for trial.
C. If the Resident fails to appear, a default will enter and the BHA wins the case. If the Resident does not move to vacate the default, an execution will be sent to the Regional Counsel within a few weeks. The Regional Counsel will send the execution to a constable, who will evict the Resident.
D. If the Resident appears in court, the Regional Counsel will try to negotiate an agreement with the Resident to settle the case based upon the instructions of the Manager. In many cases the proposed agreement will give the Resident a reasonable time to vacate the premises voluntarily. In a few special cases the Resident will be allowed to remain in his/her unit on the condition that a household member not be allowed to reside or visit at the premises or on the condition that the Resident and his/her household members behave in the future. The terms of the agreement to be proposed will be determined by the Manager and the Regional Counsel. Form Agreements for Judgment for voluntarily vacation and good behavior cases -- Vacate and "Be Good" Agreements -- are similar and are included in the appendix to this manual for reference (Form BG/VAC). Form Agreements for Judgment to prohibit a household member from remaining on the premises -- "Stay Away" Agreements (Form STAY) -- and to require a Resident to recertify household composition and income and perform tenant status review (Form TSR) are also included for reference. These form Agreements for Judgment are included in the appendix for information only. The Manager should not attempt to use these form Agreements at the management level, or at any time without Legal Department participation.
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. If the Resident violates the Agreement, the Manager should submit a Form 121B-07 to the Regional Counsel describing the violations of the Agreement. The Regional Counsel will file a Motion for Issuance of Execution based on the violations.
F. If an agreement cannot be reached, a trial will be scheduled. The Regional Counsel may 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 renders a decision in writing. Generally, the judge's decision is rendered within two weeks of the trial; however, it may take weeks or even months for a judge to write a decision. Once a decision is rendered, the Resident has ten days to appeal if the decision is favorable to the BHA; otherwise, the BHA will have ten days to appeal. If the BHA prevails and the Resident does not appeal, an execution will be sent to the Regional Counsel. The Regional Counsel will send the execution to a constable, who will evict the Resident.
H. If the Resident or the BHA appeals, the Resident may remain in the unit until the appeal is decided. Residents have an absolute right to appeal. An appeal can take a year or more to be decided. Sometimes 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. In certain circumstances the appeal may be dismissed quickly (e.g., the Court decides the appeal is frivolous and the Resident does not timely post the bond determined by the Court; the Resident fails to pay use and occupancy pending appeal; the Resident fails to take procedural steps to prosecute the appeal). In cases without grievance rights pursuant to M.G.L. ch. 121B, § 32, ¶ unnumbered paragraph 7, when the Resident appeals from a trial decision allowing eviction and fails to make (or loses) a special motion to stay in the unit, the BHA may proceed with the eviction before the appeal is decided. In such cases, if the Resident prevails on appeal, the BHA will then have to reinstate the Resident. If the case is appealed, the Regional Counsel will handle the matter and inform the Manager of ongoing developments.
V. Executions
When the Regional Counsel receives an execution, the Regional Counsel will notify the Manager and send the execution to the constable. The execution is a court document allowing the constable to evict the Resident. Technically, the constable is levying upon the execution of judgment for possession by evicting the Resident. The constable will notify the Resident and give him/her a few days to vacate. By statute, M.G.L. ch. 239, § 3, the constable must give the Resident at least 48 hours notice, Saturdays and Sundays excluded, of the date and time of physical eviction. The constable will provide the Manager with a copy of the notice of levy served on the Resident. The constable will then check with the Manager to find out whether the Resident has vacated the unit voluntarily. 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 at the physical eviction.
Procedure for Non-Grievable Cause Evictions under Unnumbered Paragraph 7 of Section 32 of Chapter 121B of the Massachusetts General Laws
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Manager
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1. Receives complaints suggesting activities covered under this section of the law.
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2. Schedules a Private Conference, and begins documentation on Manager's Checklist.
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3. Prepares "Notice of Private Conference" Form 121B-01 and has it delivered to Resident shortly after incident.
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4. Completes Certificate of Service on copy of notice, and files the document in the Resident's file.
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Resident
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5. Receives notice of private conference.
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6. Determines if time and location are acceptable.
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7. If not, calls Manager to reschedule.
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Manager and Resident
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8. Attend Private Conference and discuss all aspects of the allegations, and the eviction procedures.
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Manager
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9. Determines whether or not to proceed with eviction action.
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10. If the decision is not to evict, attempts to get Resident to sign a written agreement Form 121B-03; prepares summary of conference Form 121B-02; and delivers Form 121B-02 and Form 121B-03 to Resident and executes Certificates of Service on copies for Resident's file.
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11. If decision is to proceed with eviction, prepares Summary of Conference (Form 121B-02) (even if Resident fails to attend the meeting), Notice to Quit for Cause (Form 121B-04), and Factual Statement for Cause Eviction (Form 121B-04A)
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12. Has Form 121B-02, Form 121B-04 and Form 121B-04A delivered to Resident, and executes corresponding Certificates of Service on the copies retained for the Resident's file.
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13. Updates Manager's Checklist included in Manual after this Procedure.
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14. Prepares Memorandum of Transmittal for Cause Eviction Under M.G.L. ch. 121B, § 31, ¶ unnumbered paragraph 7, (Form 121B-06) and attaches copies of all documents detailed on the memo.
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15. Forwards the case file to the Legal Department.
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Regional Counsel
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16. Waits for Notice to Quit (Form 121B-04) to expire and reviews case to determine that all documentation is in order.
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17. If the file is incomplete, contacts the Manager to resolve the problem.
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18. Determines court date and prepares summary process summons and complaint.
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19. Has summary process summons and complaint served on Resident by constable.
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Housing Court
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20. If Resident fails to appear in court, BHA wins the case by default and the court sends the Regional Counsel an execution within a few weeks, if the Resident does not make a timely request to vacate the default.
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21. If Regional Counsel and Resident reach an agreement, the terms of which were determined by Regional Counsel and the Manager, a judge of the Housing Court signs the written agreement making it legally binding. If the Resident later fails to abide by the agreement, the Manager notifies the Regional Counsel, using Form 121B-07.
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22. If no agreement is reached, schedules trial.
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Regional Counsel and Manager
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23. Present BHA case for eviction
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Resident and/or Resident's Attorney
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24. Presents defense.
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Judge of Housing Court
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25. Renders decision.
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Regional Counsel
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26. If the decision is in favor of the Resident, determines in consultation with the Manager within 10 days whether to appeal the decision.
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Resident
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27. If the decision is in favor of the BHA, determines within 10 days whether to appeal the decision. If the Resident appeals, Resident must make a special motion to court in order to stay in unit pending appeal.
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Regional Counsel
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28. If the decision is in favor of the BHA and the Resident does not appeal, or if Resident does not make or win a special motion to stay in unit pending appeal, or if the appeal is dismissed or resolved favorably to the BHA, receives an execution from the Housing Court.
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29. Sends execution to a constable.
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Constable
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30. Notifies the Resident that he/she must vacate the unit by a specified date
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Constable and Regional Counsel
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31. Verify with Manager whether Resident has vacated premises.
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Constable
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32. If the Resident has not vacated the premises, evicts the Resident and moves Resident's possessions to storage.
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Manager
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33. Arranges for the locks to be changed.
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34. If Resident has vacated the unit voluntarily, but has not removed all property from the unit, arranges for property to be moved into storage.
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35. Responds to any inquiries regarding stored property of the evicted Resident.
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1Various other types of cause evictions are discussed in other sections of this manual. Please review the relevant section when initiating a cause case.