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  1. #1
    Join Date
    Jan 2009
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    Default Roommate Eviction and Rent Recovery

    My question involves an eviction in the state of: Massachusetts

    I am leasing a 2BR apartment in MA (only my name is on the lease and utilities). I moved in with a roommate, who is now four months behind on rent, and I need to evict them. I offered the roommate a month-to-month written sublease with my landlord's consent, but they never signed it. I believe this makes them a subtenant at will under MA law. I requested a security deposit, but never received one (as the check bounced). On December 8, I served a 14-day notice to quit by personal delivery, since my roommate is never home during the day and I do not know their work address.

    I believe I am now in a position to file an eviction case, but want to make sure I'm doing it correctly. I have a few questions on the details.

    1. The roommate is broke due to long-term illness (had been on state long-term disability, but those payments dried up for a reason which has never been made fully clear to me). I agreed to allow them to live with me only on the condition that their disability payments and other support would allow them to actually pay the rent. If I file to evict, will they be able to argue in housing court that I am discriminating against them?

    2. Since I delivered the 14-day notice to quit by hand, is there anything other than perjury which prevents them from claiming they never received the notice?

    3. What standard of evidence is applied in housing court to prove the non-payment of rent? I have a spreadsheet which I've created detailing charges and payments, and can get copies of checks which have cleared and bounced. However, for the payments which were simply never tendered, I have no specific evidence beyond my bank statements which don't happen to indicate a deposit. Will that be enough?

    4. I have been attempting to negotiate with them to get them to voluntarily leave before 1/31 so that I can bring in a new roommate on 2/1. To what stage can I "pre-emptively" take a legal eviction proceeding such that I can have them removed quickly if they do not vacate voluntarily, and do I have enough time to do so?

    5. Given that they apparently have little to no income, is there any real point to filing in small claims court to recover the rent (I am owed nearly $2800)? I would desperately like that money, but if they are judgement-proof due to indigency, will filing accomplish anything beyond incurring court costs? In addition, what standard would I need to follow in small claims court for documenting a paper trail to prove the debt, given that the roommate did not sign the sublease I offered? Alternatively, can I make a monetary claim directly in conjunction with the eviction case in housing court?

    6. If I have to have them evicted by a sheriff and their belongings stored, is there any way for me to recover those costs?

  2. #2
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    Default Re: Roommate Eviction and Rent Recovery

    By "personal delivery" do you mean you hired a process server? Because a party to litigation is often precluded from personally serving the other party.

    If they agreed to pay rent, and aren't paying their rent, you can evict them for nonpayment. Being disabled doesn't mean you get free rent. Once you have a court order granting you permission to remove them from the premises, you (and your court officer) can act on that order.

    Your roommate is a disabled deadbeat. You should expect that you won't get any money for the rent owed, and won't get any money to cover the costs of eviction. If you do get any money, consider it a pleasant surprise.

    Don't be surprised if this person turns up with a legal aid lawyer, and exploits any defect or deficiency in the way you've served notice or are handling your case.

  3. #3
    Join Date
    Jan 2009
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    2

    Default Re: Roommate Eviction and Rent Recovery

    Quote Quoting Mr. Knowitall
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    By "personal delivery" do you mean you hired a process server? Because a party to litigation is often precluded from personally serving the other party.
    Sorry, I think I misspoke when I wrote "served"; I'm not used to the relevant subtleties. I handed them the Notice To Quit in person; I don't believe that document is a legal paper which must be Served, and there's no litigation yet as I haven't taken the next step of filing a Summary Process action.

    In fact, the MA housing court FAQ appears to answer my own question:
    Unlike the Summary Process Summons and Complaint form which has to be served by a Constable or Sheriff, there is no one designated way of giving the notice to the tenant. If the tenant gets the notice in any way, then that is sufficient. On the other hand, if the landlord sends the notice by registered or certified mail, and the tenant refuses to pick it up, the tenant does not have notice. If a Constable or Sheriff serves the notice by last and usual, and the tenant denies receiving the notice, if the judge believes that testimony, then the tenant does not have notice. A landlord can give the notice directly to the tenant in hand, but it is always advisable to have a disinterested person witness this event.
    So it looks like it would be my word against theirs, since I wasn't able to get a witness on short enough notice (I had to surprise them with the paper, since they've been very evasive). I do have an email note from them acknowledging the Notice To Quit, but I don't know how useful that would be. Unfortunately, while the most airtight way of proceeding might be to deliver another Notice To Quit with an impartial witness, the roommate has been staying with a friend for the last month or so, and I don't have the address - so I really have no idea how I might prove delivery of the Notice beyond a shadow of doubt.

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