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Eviction

Real Estate
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Evictions require strict statutory compliance on the part of the landlord.  For example, in order for an eviction to be valid there are many steps a landlord must take, and there are specific defenses that a tenant may raise.  These statutes vary per state and can be burdensome to the landlord.

The first step in a valid eviction involves notice.  The kind of notice, will depend on if the landlord has a legal cause for the eviction or not.  In New Hampshire, legal cause includes things like failure to pay rent, violation of the lease or rental agreement, or damages to the property or other people on the property.  Without legal cause, a landlord will usually have to wait until the tenancy has expired before asking the tenant to move.  The two most common eviction grounds require the following notice:

  1. Seven-days’ notice for non-payment of rent: If a landlord wants to evict a tenant for failing to pay rent, the landlord must give the tenant seven days from the time of issuing the notice to either move out or pay. If the tenant does not pay or move out within the seven days, the landlord can then file a Landlord and Tenant Writ.  For manufactured housing, a 30 day notice is required for non-payment of rent (30 day Demand for Rent and Eviction Notice).  This extra time is provided because in manufactured housing parks, the tenants rent the land and they own the manufactured housing unit.
  1. Thirty-day eviction notice: If the tenant violates the lease or rental agreement or for other cause specified in the statute, the landlord may issue a thirty-day eviction notice, which must inform the tenant that he or she has 30 days to vacate the premises. The landlord does not have to give a time to allow the tenant to cure the violation after the eviction notice has been served.  However, prior to filing an eviction notice of a violation of lease or for other cause such as a violation of the rules, the landlord does need to provide prior notice.

If a landlord wishes to evict a tenant without legal cause, notice is still required.  For manufactured housing, a sixty-day eviction notice is required for a rule violation or for other reasons specified in the statute that do not include non-payment of rent.  For example in a month-to-month lease the landlord must provide a 30 day written eviction notice.  The landlord must also have good cause to end the tenancy which New Hampshire defines broadly.  If a tenant wanted to bring a defense, he or she may do so by alleging, for example, that the landlord failed to maintain the rental property or was not given notice.  NH RSA 540 and 540-A is the law that governs evictions in New Hampshire, along with RSA 205-A for manufactured housing parks.

In Massachusetts, a landlord’s ability to evict is much more stringent.  See MGLA c.239.  For example, in Massachusetts, a landlord may only evict a tenant before the lease is up if the tenant is:

  1. Violating the lease, if the lease states that the landlord may evict for such a violation;
  2. Not paying rent; or
  3. Using the apartment for illegal purposes.

Massachusetts also forbids any lease that states the landlord may remove or evict a tenant without going to court.  Similar to New Hampshire, a landlord may only validly evict a tenant by properly terminating the tenancy and getting permission from the court to take possession of the rental unit.  As for notice, landlords in Massachusetts must give a 14 days notice to a tenant for failure to pay rent.

Removal of a tenant is only permitted if a landlord wins an eviction action against the tenant in court.  The landlord cannot be the person who actually, physically, removes the tenant.  Only a law enforcement officer/sheriff may force the tenant to move out by orders of the court, which is known as a Writ of Possession.  If any personal property is left in the rental premises the landlord must store it for at least seven days, and may dispose of it after that period.  In Massachusetts a landlord is expected to inspect the premises three days after the tenant vacates, or should have vacated, for abandoned animals in addition to the condition of the property.  

Having worked with area Landlords for many years, Smith-Weiss Shepard Kanakis & Spony, P.C. offers extensive experience with all types of Landlord and Tenant matters.  Advising Landlords on the intricacies of owner’s rights and responsibilities is of vital importance to Smith-Weiss Shepard Kanakis & Spony, P.C. and we want to ensure our clients are well advised should issues arise.