Executions for Possession: What to Know
The legal process of obtaining possession of rental property always requires a landlord to bring a formal court case against a tenant, known as an eviction (formally referred to as “summary process” in Massachusetts). However, filing an eviction alone does not entitle a landlord to possession. A landlord must obtain a legal document, known as an execution for possession, to physically remove a tenant from rental property.
An execution for possession is a simple, one-page legal document that permits a constable or sheriff to remove a tenant from rental property. The process for obtaining and acting upon an execution for possession, however, can be anything but simple.
A Landlord May Obtain an Execution for Possession by Agreement or After Trial
After a landlord starts an eviction, there are generally two outcomes for such a case. First, and most commonly, the landlord and tenant can agree for the tenant to leave the rental property on their own. If the tenant fails to leave by the designated date, the court agreement can allow the landlord to request the execution from the court.
If the parties cannot resolve the matter, the eviction goes to trial. If the landlord wins, they are entitled to an execution.
Landlords and tenants sometimes confuse an execution for possession with a court judgment. A court judgment simply states who is entitled to possession of the rental property after the eviction case. The execution, however, is the formal document that allows this to happen.
Most courts will not automatically issue an execution for possession. Rather, the landlord must formally request that the court issue the execution.
Landlords Must Use a Constable or Sheriff to Levy an Execution
Once a landlord gets an execution, they need a constable or sheriff to levy the execution, which is the formal process of obtaining possession of the rental property. Landlords, importantly, cannot move a tenant out on their own or change locks to the property.
Massachusetts has strict rules about levying executions. Landlords, through a sheriff or constable, must provide advance notice about the move out and store the tenant’s possessions in a designated storage facility.
Deadline for Levying an Execution for Possession
Landlords have ninety days after the court issues an execution for possession to levy it. If a landlord fails to do so, they will most likely need to start a new eviction case against the tenant.
Most landlords are chomping at the bit to get a tenant out, and will move on an execution right away. There are, however, good reasons why a landlord may wait on an execution, such as giving a tenant a little extra time to leave the apartment on their own. In many cases, it can be advantageous to hold off on levying an execution, but landlords need to be mindful of this deadline.
If you need assistance with a landlord-tenant matter, contact me for a consultation.