I. Introduction
The grievable cause eviction process is used whenever a housing manager wants to evict a Resident or an occupant under a Use and Occupancy Agreement, for any reason other than non-payment of rent when there is no basis for the eviction under M.G.L. ch. 139, § 19, or M.G.L. ch. 121B, § 32, ¶ unnumbered paragraph 7. "Cause" encompasses all lease violations other than for non-payment of rent. In order for the Legal Department to successfully file an eviction case, it is imperative that BHA staff follow all applicable procedures. Failure to do so can result in the case being dismissed by the Housing Court.
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 any manager without authorization from the Regional Counsel. Unauthorized modifications could cause the BHA to lose its eviction case in court.
The Grievable Eviction Procedure covers eviction of Residents and Occupants for any lease violation except: 1) non-payment of rent (see Section 1 or Section 5); 2) a violation of M.G.L. ch. 139, § 19 (see Section 2 or 3); a violation of M.G.L. ch. 121B, § 32, ¶ unnumbered paragraph 7, (see Section 3). There are two special exceptions to this Grievable Eviction Procedure: (1) for an occupant under an Agreement for Judgment, the Manager should refer the case to the Legal Department on Form GC-09; and (2) for a Residual Applicant, the Manager should follow the procedure set forth in this section, but should not deliver the Grievance Request Form (Form GC-04).
Once a Manager decides that a Resident is in violation of his/her lease, and the facts indicate it will be a grievable eviction, the Manager should commence processing the eviction. A checklist for the grievable eviction process is included in this Manual after the Procedure for Grievable Cause Evictions. 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.
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 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 informed 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 at 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, 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 Grievable Cause Eviction Procedure, the Resident receives a written Notice of Private Conference, Form GC-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, 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 GC-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 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 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 BHA employee 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, grievance hearing, and court process) to the Resident.
E. Prepare a Summary of the Private Conference (Form GC-02) immediately following the meeting.
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 GC-03. If the resident 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. Management should consult with the Legal Department 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 GC-02) and agreement (Form GC-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 GC-02) and the agreement (Form GC-03) in the resident's file along with the copy of the Notice of Private Conference (Form GC-01).
4. If the Resident violates the Agreement, the Manager should prepare a Notice of Termination/ Notice to Quit (Form GC-06) with Factual Statement (Form GC-06A) 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:
1. The Manager provides the Resident with a completed Summary of Private Conference (Form GC-02), Notice of Termination/Notice to Quit (Form GC-06), a completed Factual Statement of Cause (Form GC-06A), and a Request for Grievance Hearing (Form GC-04); has these forms delivered to the Resident or an adult present in the apartment and retains copies for the Resident's file. Certificates of Service attached to Forms GC-02, GC-06 and GC-06A must be completed on the file copies. In the case of a Residual Tenancy Applicant under a Use and Occupancy Agreement, Form GC-04 should not be served on the occupant.
2. The Resident has 30 days after receiving Form GC-06 to decide whether or not to request a Grievance Hearing. If the notice was not delivered in hand, the Manager should allow 2 extra days to insure that the Resident had the documents for 30 days. Although written requests are preferable, the Manager should accept oral requests and memorialize the oral communication through an appropriately dated and signed note. If there is a close question on the timeliness of the request, the request should be granted.
3. If the Resident requests a Grievance Hearing through the Manager or if the Manager is notified by the Grievance Panel Coordinator that the Resident has requested a grievance, the Manager prepares Form GC-05 and forwards it along with copies of all the required documentation detailed on the memorandum to the Hearing Panel Coordinator. The Manager should send a duplicate package, along with a transmittal memorandum (Form GC-08) and a military affidavit (Form GC-07), to the Legal Department.
4. If the Resident does not request a Grievance Hearing, after the mandated 30 to 32 day waiting period, the Manager submits the case file to the Legal Department by preparing the "Transmittal Memorandum" (Form GC-08) and by attaching copies of all the documents detailed on the form.
IV. The Grievance Hearing Process
1. In accordance with the BHA Grievance Policy, the Resident may contact either the Manager or the BHA Grievance Panel Coordinator to request his or her grievance hearing. A Resident's request for a grievance hearing received by a Manager should be immediately forwarded to the Hearing Panel Coordinator in the Occupancy Department. The Manager should use Form GC-05 as a cover memo and include the documents listed on the form.
2. The Hearing Panel Coordinator will notify the Regional Counsel and the Manager of the grievance hearing date.
3. If the Manager or a material witness cannot be present at the date and time the hearing is scheduled, the Manager should notify the Hearing Panel Coordinator as soon as possible. If a Resident is absent or very late for the hearing without good cause, the Hearing Panel will default the Resident and allow the BHA to proceed to court. If a Manager is absent or very late for the hearing without good cause, the Hearing Panel will dismiss the case.
4. The Manager's responsibility at the Grievance Hearing will be to bring witnesses and all pertinent documents to the hearing to prove that the factual evidence for the eviction is adequate to proceed to court.
5. Grievance hearings are held in the tenth floor conference room at 52 Chauncy Street. At present, five people sit on the grievance panel: three tenants and two BHA employees. The grievance hearing is tape recorded.
6. Evidence for the grievance hearing is presented through witnesses and documents. The BHA will present all of its witnesses first, and the Resident may question each of those witnesses. The Resident will then present any witnesses he/she has, and the BHA may question any of those witnesses. In determining how to prepare for a grievance panel hearing, the Managers should be aware hearsay evidence may be submitted by the parties; however, the Grievance Panel may not weigh such evidence as heavily as direct witness testimony. After the Panel has heard all of the evidence, it will issue a written decision that will be mailed to the Manager and the Resident.
V. Grievance Panel Decision
1. After the grievance hearing, the Panel will issue a written decision which is mailed to the Manager and the Resident. The Resident has a right to appeal the decision of the grievance hearing panel to a hearing officer. If the Resident chooses to appeal, the court eviction process cannot begin until after the grievance appeal has been decided. If the Grievance Panel decides in favor of the Resident, the Manager can appeal to the hearing officer if the Panel's decision is arbitrary, capricious or contrary to law. The Manager should contact his/her Regional Counsel immediately if he/she wants to appeal a Panel decision. In the case of an appeal, the court eviction cannot begin unless the grievance panel hearing officer decides in favor of the BHA.
2. Before the BHA can proceed to court to evict, the Resident's lease must be terminated. That is the purpose of the Notice to Quit. A Resident will have received a combined Notice of Termination/Notice to Quit (Form GC-06) before the grievance hearing. The Notice of Termination/Notice to Quit was not voided when the Resident requested and received a grievance hearing. If the grievance hearing decision has been made before the expiration of the 30-day Notice to Quit, the court eviction procedure cannot be started until the 30 day period has expired.
3. After the expiration of the Notice to Quit and the grievance process, the Regional Counsel will proceed to court.
VI. 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 to Quit (Form GC-06) 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 Legal Department 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 Legal Department within a few weeks. The Legal Department 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 the tenant status review (Form TSR) are also included in the appendix for reference. These form Agreements for Judgment are included in the Appendix for information only. The Manager should not attempt to use these 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 GC-09 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 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). If the case is appealed, the Regional Counsel will handle the matter and inform the Manager of ongoing developments.
VII. 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 Grievable Cause Evictions
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Manager
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1. Receives complaints suggesting lease violations.
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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 GC-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, the Resident's rights related to requesting a grievance hearing 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 GC-03); prepares Summary of Conference (Form GC-02); and delivers Form GC-02 and Form GC-03 to Resident, and executes Certificates of Service on copies for Resident's file.
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11. If the decision is to proceed with the eviction, prepares Summary of Conference (Form GC-02), Notice of Termination/ Notice to Quit (Form GC-06), and the Factual Statement for Cause Eviction (Form GC-06A)
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12. Has Form GC-02, a blank Request for Grievance Hearing (Form GC-04), Form GC-06 and Form GC-06A, delivered to Resident and executes corresponding Certificates of Service on the copies retained for the Resident's file. In the case of a Residual Tenancy Applicant under a Use and Occupancy Agreement only, do not serve the Form GC-04.
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13. Updates Manager's Checklist, included in Manual after this Procedure.
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Resident
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14. Decides within 30 days of receipt of documents whether to request a Grievance hearing.
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Manager
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15. If Resident has not requested a hearing within 32 days, prepares Form GC-08 and forwards along with copies of all documents detailed on the memorandum of transmittal to the Legal Department. Go to Step 24.
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Resident
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16. If Resident requests a grievance hearing, Resident submits Form GC-04 or an oral request to the Manager, or submits Form GC-04 to the Grievance Panel Coordinator.
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Manager
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17. If notified by Resident that Resident is filing a grievance, or when Grievance Panel Coordinator notifies Manager that the Resident has filed a grievance request directly with Grievance Panel Coordinator, the Manager prepares Form GC-05 and forwards to Hearing Panel Coordinator along with copies of documents detailed on the form.
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18. Prepares Form GC-08 and forwards Legal Department a copy of all documents sent to Hearing Panel Coordinator, a copy of the lease, and a Military Affidavit.
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Hearing Panel Coordinator
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19. Notifies Manager, Resident, and Regional Counsel of hearing date.
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Manager and Regional Counsel
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20. Present case including bringing witnesses and all pertinent documents to the hearing.
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Resident
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21. Presents Resident's case.
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Hearing Panel
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22. Hears all testimony and makes a decision in writing.
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Hearing Panel Coordinator
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23. Notifies all parties of decision. If neither party appeals grievance panel's decision, go immediately to Step 24. If either Resident or manager does appeal grievance panel decision, appeal must be heard and decided before going to Step 24.
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Regional Counsel
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24. If decision of the Hearing Panel or grievance appeal hearing officer (if applicable) is to proceed with eviction, or if Resident fails to request a grievance hearing in the required time, waits for Notice of Quit to expire, if it has not already done so.
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25. Reviews case to determine that all documentation is in order.
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26. If the file is incomplete, contacts the Manager to resolve the problem.
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27. Determines court date and prepares summary process summons and complaint.
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28. Has summary process summons and complaint served on Resident by constable.
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Housing Court
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29. 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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30. If Regional Counsel and Resident reach an agreement, the terms of which were determined by the 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 Legal Department, using Form GC-09.
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31. If no agreement is reached, schedules trial.
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Regional Counsel and Manager
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32. Present BHA case for evictio
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Resident and/or Resident's Attorney
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Judge of Housing Court
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Regional Counsel
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35. If the decision is in favor of the Resident, determines in consultation with Manager within 10 days whether to appeal the decision.
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Resident
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36. If the decision is in favor of the BHA, determines within 10 days whether to appeal the decision. If the Resident appeals, the appeal must be dismissed or decided favorably to the BHA before the execution can issue in grievable cases.
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Regional Counsel
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37. If the decision is in favor of the BHA and the Resident does not appeal, or if the appeal is dismissed or resolved favorably to the BHA, receives an execution from the Housing Court.
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38. Sends execution to a constable.
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Constable
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39. Notifies the Resident that he/she must vacate the premises by a specified date.
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Constable and Regional Counsel
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40. Verify with Manager whether Resident has vacated premises.
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Constable
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41. 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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42. Arranges for the locks to be changed.
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43. 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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44. 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.