1. Foreclosing Owner Must Have Just Cause to Evict
If you are a
- You do something wrong that gives the owner
just causeto evict you,40 or
- The foreclosing owner sells the property to a bona fide third party purchaser.
The foreclosing owner has
- Refused to give the foreclosing owner reasonable access to the unit to inspect, make repairs, or show the property to potential buyers,
- Created a nuisance or problem at the property,41
- Allowed the property to be used for an illegal purpose,
- Refused to renew your lease,42
- Did not pay rent.
- Did not follow your lease or a rule or responsibility. The owner must send you a notice that says what you did wrong. She must give you 30 days to correct the problem. If you correct the problem by the deadline she cannot evict you.43
- Even if you do nothing wrong to give the owner just cause to evict you, the foreclosing owner can evict you if they enter into a binding sales contract to sell the house.
2. What Steps Must the Owner Take
If a new owner purchases the property after foreclosure, the new owner cannot force you out, lock you out, or shut off your utilities.44 The new owner can ask the court for an eviction order, but that takes time. You will have a chance to tell the judge why you should not be evicted. You can ask the court or a mediator for more time.
If the new owner wants to evict you, she must follow these steps:
- Send you a
Notice to Quit. This notice says your tenancyis over. It will tell you the number of days before the owner can go to court to evict you.
- Send you a Summary Process Summons and Complaint. The Complaint tells you that the owner is asking the court to evict you. The Summons tells you when to come to court and when to file an Answer.
- File the Summons and Complaint with the court prior to the Entry date.
- Show up at the court hearing on the date in the Summons and prove that she has the right to evict you at trial.
a. Notice to Quit
The first step in the eviction process is a
|Reason for eviction||Days before owner takes you to court|
|If the foreclosure occurred in 2014 or earlier.45||90 days notice.|
|If you did not pay your rent46||14 days notice|
|Most other reasons47||1 month notice (if you pay monthly; otherwise the number of days in your regular rental period.)|
|If you do not pay regular rent48||3 months notice, or, the rental pay period if it is between 30 days and 3 months.|
Learn more about eviction notices in Chapter 12: Evictions – Receiving Proper Notice.
b. Summons and Complaint
If you do not leave by the deadline in the
If you receive a
Read it carefully so you will know:
- Where to go to court,
- When to go to court, and
- When the deadline for filing your Answer is.
Learn more about summons and complaints in Chapter 12: Evictions - Receiving Proper Notice.
The Answer is your first chance to tell the Judge your side of the story. If you want to fight the eviction or just get more time it is very important to file an
Discovery is how you get information from the owner about her case against you in court and information to help your case. To learn how to make the new owner give you copies of her proof, see Discovery for Tenants in Foreclosed Properties (Booklet 4A) and Chapter 12: Evictions - Fighting an Eviction in Court.
e. Legal Help
Foreclosure cases are complicated. It is important to try to get legal help when you fill out the Answer and Discovery forms. For information about where to find a lawyer go to: See Find Legal Aid.
Some courts have volunteer lawyers who help tenants on “eviction day.” These lawyers offer limited help. Not all courts have volunteer lawyers. Call the court where your case is to see if there are volunteer lawyers available.
f. Court Hearing
If your landlord wants to evict you, she must go to court and give evidence to the judge. The new owner will not automatically win the case. You have a right to a court hearing to fight the eviction.50
g. Defense to Eviction
At the hearing, you will be able to present your
- Foreclosure was not done correctly. If you show it was not done correctly, the new owner does not have the right to evict you.51
- Notice was not given correctly. If you show that the owner did not record the foreclosure deed in the Registry of Deeds,52 before she gave you the Notice to Quit, you cannot be evicted. It does not matter if the deed was already signed.53
- The new owner violated your lease or broke a law related to your apartment.
- There are problems with your security deposit like your landlord did not keep it in a separate bank account.54
- There are bad conditions in your rental unit. If this is your defense, notify the landlord about the bad conditions as soon as possible and offer to pay rent.
To learn more about how to defend your case, see Chapter 12: Evictions - Fighting an Eviction in Court.
40 . G.L. c. 186A, §1, the definition of “Just cause.”
43 . G.L. c. 186A, §4(a)(ii) requiring a foreclosing owner to give a tenant 30 days written notice to cure a material violation of an obligation or covenant of the tenancy or occupancy. See G.L. c. 186A, §4(b) outlining when the notice is necessary.
44 . G.L. c. 186, §14; 105 C.M.R. §§410.180, 410.190, 410.200, 410.201, 410.355.
45 . The argument is that the Protecting Tenants at Foreclosure Act (which expired December 31, 2014) applies where title to the property changed in 2014 or earlier. Title VII of Public Law 111–22 section 702. The law protected tenants of properties where the tenancy was initiated before the “notice of foreclosure,” and said that the successor took title to the property subject to the rights of the bona fide tenant. Notice of foreclosure is defined in section 702(c) as “the date on which complete title to a property is transferred to a successor entity or person as a result of an order of a court or pursuant to provisions in a mortgage, deed of trust, or security deed.” As long as title passed in or before 2014, the successor takes title subject to the tenant’s rights – the tenant got the rights at the time title transferred.
46 . G.L. c. 186, §§11 and 12.
48 . G.L. c. 186. §12 provides that for termination of a tenancy at will an owner is required to give a lawful occupant a three month notice to vacate the premises unless the owner establishes that rent was payable at periods of less than three months, in which case the greater of a “30 day” or rental pay period notice is sufficient. Ducker v. Ducker, 1997 Mass. App Div. 147 (Northern District, September 22, 1997)(Court finds that payment of taxes, water, and sewer and utility bills is sufficient consideration to support creation of tenancy at will and 90 days notice was required prior to eviction.)
49 . G.L. c. 223, §31; U.S.P.R. 2(b).
51 . See, e.g., Bank of New York, trustee v KC Bailey, 460 Mass. 327 (2011).
52 . To determine whether a property is registered land, contact your local Registry of Deeds or go to //www.masslandrecords.com. Land that is not registered is called "recorded land.”
53 . Bank of New York, trustee v KC Bailey, 460 Mass. 327 (2011).