KNOW YOUR RIGHTS: EVICTION FOR NONPAYMENT OF RENT
Are you being evicted for nonpayment of rent? Did you receive a 14-day Notice to Quit from your landlord? If so, read below to learn about what this means and potential defenses that you may have.
First of all, the date on your notice to quit is not the date you must move out by, it is that date your tenancy ends and your landlord can bring a summary process action.
Second, whether you have a lease or not, your landlord must send you a 14-day notice to quit for nonpayment of rent. (In an eviction that is for something other than nonpayment of rent, the landlord follows a different process, which we’ll cover in next week’s post.)
Third, you may have valid defenses against the termination of your tenancy and you also may be able to “cure” the nonpayment deficiency.
Potential defenses:
Were you validly withholding rent? You may recall from some of our previous posts that poor conditions in your apartment may cause a reduction in the fair market value of your rent. It may be the case that you told your landlord that you were going to withhold rent if the landlord did not fix the leak in your roof/remedy the mouse infestation/fix the broken heating system/etc. If so, and the landlord failed to remedy the situation, you may have validly withheld rent.
Did your landlord increase your rent without your consent? Your landlord cannot unilaterally increase your rent. However, your landlord can send you a notice to quit (we’ll cover notices to quit for reasons other than nonpayment in next week’s blog post) and then offer to reinstate your tenancy at a higher rent.
Is the notice to quit procedurally valid? Does it accurately include the names of the tenants in the apartment and your landlord's name, state your address validly, clearly state your tenancy is being terminated, include cure rights, state the date you need to vacate, and did you actually receive the notice?
The notice to quit should include the names of the tenants in your apartment. If you have kids or you have other people living in your apartment that the landlord may be unaware of, the notice to quit does not necessarily have to state those names but it should identify adult tenants.
The notice to quit must correctly state your address.
If you are a tenant at will, the notice to quit provides you with “cure rights.” If your notice to quit expressly contains cure rights, you have the right to “cure” the nonpayment within 10 days of receiving the notice. To do so, you must pay all back rent and current rent and this will serve to cure the nonpayment. If the notice to quit does not list cure rights, you then have until the answer date to cure the nonpayment. (The answer date should be included in the summons and complaint.) If you have a lease, the notice to quit does not necessarily need to contain cure rights, and if it does not, you have until the answer date to cure the nonpayment. The cure rights are only applicable if this is your first notice to quit for nonpayment of rent within the past twelve months. After the 10 days or answer date have passed, whichever is applicable to your situation, your landlord may still accept your rent and this may create a new tenancy at will, or your landlord may accept your payment “for use and occupancy only,” which would not create a new tenancy.
You must also actually receive the notice to quit for it to be valid and the notice period begins when you receive the notice, not including the actual day you receive it. The burden is on the landlord to deliver the notice to quit to you so that you actually receive it. The landlord can use various techniques to serve you with the notice, such as hand delivery, certified mail, etc., but the time period does not begin to run until you actually receive it.
Your landlord’s failure to comply with any of the above may result in your notice to quit not being valid, which gives you an avenue to challenge it.
Once your tenancy is properly terminated through the notice to quit, your landlord then initiates the summary process action. You must receive a summary process summons and complaint and it cannot be served until your tenancy is actually terminated.
Notice to quit & summary process action timeline example:
Jane pays rent on the first of each month. Jane did not pay rent for the months of January, February, and March. On March 5, 2018, Jane received a 14-day notice to quit from her landlord, Lou.
Termination date: March 19, 2018 at midnight. This is because Jane received the notice on the 5th, so the notice period began to run on the following day, the 6th. Jane’s tenancy terminates with the expiration of the 14-day period, which is March 19 at midnight.
Earliest date Lou can serve Jane with summons and complaint: March 20, 2018. This is the first day after Jane's tenancy was terminated by the notice to quit.
Like the notice to quit, the summary process summons and complaint must also comply with procedural requirements. These requirements include stating the accurate answer date, entry date, and court date; commencing the action after terminating the tenancy; stating the basis for the eviction; including the signature of the landlord/attorney; serving the complaint within the proper time frame (at least seven days, but no more than thirty days before the entry date); and actually serving the tenant with the complaint.
When you receive a notice to quit and then a summary process and complaint, the first step is not to ignore these items. Even if you believe you are 100% in the right, you still need to respond to the complaint. That’s where we can help.
How can the Law Office of Thomas R. Davis help you?
If you have a housing issue, the Law Office of Thomas R. Davis is here to help.
Call us any time at (617) 431-3887 for a free, no obligation attorney consultation. You can also schedule a free 60 minute consultation online at www.thomasdavislaw.com. We are here to provide you with the quality representation you deserve.