Massachusetts Commercial Eviction Procedure
The moratorium on evictions in Massachusetts has been extended to October 17, 2020 and could be extended further. It applies to small businesses so long as the business has fewer than 150 employees and does not operate in multiple states or countries.
The moratorium on small business or commercial evictions precludes a landlord from evicting a tenant during the moratorium when there is no lease between landlord and tenant. If there is a lease, the moratorium may not afford a tenant protection against eviction if the lease allows the landlord to engage in “self-help”, meaning taking possession of the premises by changing the locks or otherwise excluding the tenant.
Where there is no lease or a lease does not permit self-help, a landlord cannot engage in self-help but must instead pursue a summary process [eviction] action against the tenant in the District or Superior Court. The Court(s) will not, however, entertain any such action during the moratorium.
In a summary process action the Court can grant a landlord a judgment for possession and unpaid rent(s) against a tenant, meaning the tenant has no further right to occupy the premises and owes rent that tenant had not paid while it did occupy the premises. The tenant has a right to be heard and raise whatever defenses it has in a summary process action which is heard and decided by a judge without a jury. The judge has discretion as to when the tenant must vacate the premises, if at all, and when any unpaid rent due the landlord must be paid.
A summary process action begins with a notice of termination of tenancy from landlord to tenant if there is no lease or a notice of default or breach where there is a lease. In either case, the tenant will have a right to promptly cure a default or breach. If tenant does not cure a default or breach following a notice landlord may initiate a summary process action but not before October 17, 2020. After filing its summary process action, landlord must arrange for service or delivery of the court papers to tenant. The papers will include the date of the hearing before the Court.
When the moratorium ends, courts will have an unusually large backlog of cases and will likely prioritize the types of cases to be heard first. It is unlikely that summary processes actions will be heard in a prompt or timely manner. Given the delays and uncertainty in any court proceeding it may be in the interest of both landlord and tenant to communicate and negotiate a resolution of their issues rather than have the court impose terms after protracted proceedings.
