3 Mistakes to Avoid When Preparing a Notice to Quit

Preparing a notice to quit is a requirement for nearly every Massachusetts eviction. This notice informs the tenant of the reason for the eviction and provides them a time period in which their tenancy is terminated.

A mistake in one of these notices, however, can be fatal to an eviction case, and lead to unnecessary delay.

Here, I’ll discuss three common mistakes made when preparing a notice to quit.

#1: Using the Improper Notice to Quit for The Tenancy

The proper notice to quit depends on the type of tenancy. Generally, a fourteen-day notice to quit is required for evictions based upon non-payment of rent, and a thirty-day notice is required for a no-fault eviction for a tenancy at will (commonly known as a month-to-month tenancy).

Landlords need to be careful that they are using the correct notice to quit for their eviction, as the wrong notice will likely lead to the eviction’s dismissal.

Landlords also need to be careful when using templates for these notices. Often, there are many free notices to quit on the Internet that are not intended for a Massachusetts eviction.

#2: Stating Inconsistent Reasons for the Eviction

A notice to quit must be consistent. Including inconsistent reasons for the eviction can also be grounds for dismissing the eviction case.

#3: Not Using a Sheriff or Constable to Serve the Notice

In an eviction, the landlord bears the burden of proving that the tenant received the notice to quit. Simply taping the notice to quit to the tenant’s apartment or mailing it to the tenant can be problematic, if the tenant denies receipt.

A much better option is to use a constable or sheriff to serve the notice. By law, such service creates a presumption that the tenant received the notice to quit. The tenant can try and argue otherwise, but will have a much harder argument to make if there is proof of service from a constable or sheriff.

Final Thoughts

If you assistance with a landlord-tenant matter, contact me for a consultation.

Serving a Notice to Quit

Massachusetts’s Supreme Judicial Court issued an important decision last week on landlord-tenant law. The full decision, Youghal, LLC v. Entwistle, is included below.

Like many appeals, the decision touches upon many different legal issues, not all of which are relevant for Massachusetts landlords. Here, I want to focus on a topic that is critically important for landlord-tenant law: properly serving a notice to quit. I’ll also discuss the requirements for appealing a landlord-tenant case (this latter topic constituted the bulk of the decision, but is more relevant to lawyers than landlords).

Overview

Youghal was an eviction case brought by a landlord against a tenant for non-payment of rent. This eviction, like nearly every Massachusetts eviction, required the landlord to provide the tenant with a notice to quit prior to filing the eviction case.

A notice to quit provides the tenant with the reason and date that the landlord is terminating the tenancy. Such a notice is a mandatory requirement for evictions, and as demonstrated in this case, can be fatal if not done correctly. For non-payment of rent, a landlord generally has to give a tenant a fourteen (14) day notice to quit.

Serving a Notice to Quit

One of the defenses that the tenants raised in this case is that the landlord filed the eviction case too soon, before the end of the fourteen day notice period. Here, it appears that the landlord posted the notice to quit on the tenant’s door. The tenant was not present when this occurred, and only learned about it the following day.

The landlord argued that the fourteen-day period was based on the day that the landlord posted the notice. The Court disagreed, ruling that this period started when the tenant had actual notice of the notice to quit. Simply posting the notice on the door was not enough to start this fourteen-day period.

Practical Implications

How could this have been avoided? The landlord in this case should have a used a constable or sheriff to serve the notice to quit.

By law, a constable’s return of service is prima facie evidence that the tenant was served. A tenant can still try and argue that they never received the notice to quit, but must overcome a presumption that service was properly made.

While it is not entirely apparent from this decision, it appears that the landlord in this case never used a sheriff or constable to serve the notice to quit, and instead, did it on their own. Such an approach is risky because, as seen in Youghal, if the landlord does not actually hand the notice to the tenant, it can be an open question as to when the tenant received notice.

To be clear, it is possible that the same defense could have occurred even if a sheriff or constable was involved. In my experience, however, serving a notice to quit through a constable or sheriff makes such problems much less likely to occur.

Appealing a Landlord-Tenant Decision

Youghal also concerned the process of appealing a landlord-tenant decision. Such appeals come with an incredibly tight deadline: ten days after final judgment. The issue in Youghal concerned a scenario where this deadline is extended by the filing of a motion for reconsideration.

Attorney Joseph Schneiderman, who prepared a brief for the benefit of the tenants in this case, told me that “[t]hese provisions of the civil and appellate rules often create counterintuitive tangles that confound practitioners and litigants alike, especially in summary process cases. This decision positively detangles this issue by allowing a party to toll the appeal clock by moving for a new trial or to alter or amend.a judgment before judgment formally enters.”

What’s the take home lesson for landlords? Be extremely careful when filing a landlord-tenant appeal.

Conclusion

If you need assistance with a landlord-tenant matter, contact me for a consultation.

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Notice to Quit for Massachusetts Evictions

The Supreme Judicial Court issued an important decision this week clarifying the notice to quit requirement for Massachusetts evictions. The decision, Cambridge Street Realty v. Stewart, is included below.

Cambridge Street Realty concerns several legal issues that are of importance to Massachusetts eviction law. Here, I’ll focus on the decision’s discussion of the notice to quit, which is a requirement for nearly all evictions in Massachusetts.

What is a Notice to Quit?

A notice to quit is a legal document informing a tenant that the landlord is terminating their tenancy. This is required for nearly all evictions in Massachusetts and requires the landlord to prove that it served one of these notices to the tenant, prior to starting an eviction. Failure to provide an adequate notice to quit is often grounds for dismissing an eviction case.

The time required in the notice to quit generally depends upon the type of tenancy and the reason for eviction. In Cambridge Street Realty, the tenant was in Section 8 housing, which is federally subsidized and generally has additional, specific requirements for such a notice. Here, the tenant alleged that the notice to quit was defective, but only raised this argument after the eviction case was over.

What Does a Defective Notice Mean For An Eviction Case?

The Court in Cambridge Street Realty needed to determine what impact a defective notice to quit has on an eviction. Here, the tenant argued that a notice to quit is a jurisdictional requirement, meaning that the failure to provide an adequate notice to quit could be raised at any time . . . even after the eviction is over.

The Court rejected this argument. While a notice to quit is a requirement for most evictions, a tenant must adequately raise a defective notice as part of their eviction defense. Failure to do so means that the tenant waived the right to challenge the eviction on these grounds. As such, a tenant is unable to come back to court later and attempt to reverse an eviction, by arguing that the original notice to quit was in error.

Practical Implications

Cambridge Street Realty is an important win for Massachusetts landlords. Making a notice to quit a jurisdictional requirement for evictions would have had precarious implications for landlords. Such an outcome could have conceivably allowed a tenant to void an eviction well after it occurred, leaving possession of a rental apartment in flux.

It would, however, be shortsighted to interpret Cambridge Street Realty as diminishing the notice to quit requirement for Massachusetts evictions. A tenant who does raise the adequacy of a notice to quit in court will be heard on this issue, and will be successful if the landlord provided the tenant with an improper notice. This is one reason, among many, that Massachusetts landlords should consider speaking with a landlord-tenant attorney for assistance with an eviction.

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