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).
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.
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.
If you need assistance with a landlord-tenant matter, contact me for a consultation.Youghal-LLC-v.-Entwistle