Agreements for Judgment in Massachusetts Residential Evictions by Peter M. Heintzelman, Esq. (Copyrighted 1999, all rights reserved) A substantial majority of residential evictions never go to trial. All Massachusetts Housing Courts report that most parties settle; normally by entering into an Agreement for Judgment. The Agreement for Judgment is a form available at the Clerk's Office of the Housing Court. It is the form used by the Housing Court mediators to set forth the parties' agreement. Most settlements occur on the day of trial. Normally, an agreement gets signed by all parties and the Housing Court Judge. Since such a substantial number of evicitons "settle", if you want to be a successful landlord, learn to settle, successfully. You always have a settlement position, namely, "to get better than I would get going to trial!" In otherwords, if the case does not settle, and goes to trial, and even if the landlord prevails, in Massachusetts there is a ten day appeal period (M.G.L. Ch. 239, sec. 5) after entry of judgment. Assuming the tenant does not appeal, the landlord may file with the Court an Application for Execution, and a few days thereafter, if not sooner, the landlord will receive the Execution for Possession; that legal document you need to then deliver to a Constable or Sheriff. The Constable or Sheriff then is required by law to provide the tenant a minimum forty-eight hour notice (pursuant to M.G.L. Ch. 239, sec.3) of their intent to show up and eject the tenant from the premises. By the way, guess who pays for the Constable fees, moving expenses, storage expenses? That's right; you do, landlord. I've seen these costs range between $300 and $2,000, depending upon the amount of tenant property needs to be stored. (Note: I would point out, however, that the constable I use to due forcible ejections reports that 3 out of 4 tenants vacate by the midnight hour after a 48 hour notice was served) In a number of other states, the landlord is not required to incur these move and store expenses. (Note: This would be a great law for property owner associations statewide to try to amend; namely to remove the onerous and expensive burden of forcing the landlords to pay to move and store the tenant's property - See the current legal requirement set forth in Massachusetts General Laws, Chapter 239, Sections 3 and 4) . After a landlord recovers possession of the premises, they can attempt to turn their attention to collecting the rent arrears judgment they may have also received from the Court. Oftentimes, collections proceed in "Supplementary Process", where the debtor, your former tenant, is brought by you back into the Court for the Court to order the tenant to make some form of court-ordered repayment plan. The general rule of the Court is not to order the tenant to make payments unless that person is found to have "an ability to pay." The ability to pay formula is: Subtract from the tenant's income their "reasonable life necessity expenses", including their new rent, food, gas, diapers, get the picture, and what is left over is their "ability to pay." Because of the application of this formula, many tenants are found to lack an ability to currently pay, and no payment order may issue. You just spent more court filing fee money, time to appear in court, and often find your tenant is "judgment proof." While economics and recovery of monies due is indeed important, keep touch with reality; don't get caught up in "principles"; better to find the least expensive way out, because a trial win can be expensive to act upon. So, keeping in mind, then, that a landlord's trial win, may be expensive to enforce, and you may never collect the rental arrearages, maybe these factors being considered when you look to enter into an Agreement for Judgment, may show you that conceding some things, like rent arrears you may never re-collect anyway, and giving the tenant a little more time to move (I know, they've been given too much time already by you!), may actually reduce your losses and further financial expenses of pushing the tenant out the door. Finally, here are some ideas to express in your Agreements for Judgment, if they are relevant to the fact pattern of your eviction, and if you can get the parties, and the mediator, and the judge to agree! These suggestions are not meant to be a substitute for legal advice, and are far from all inclusive. Some judges may not even be willing to allow some of the below to be in agreements they sign, although acceptable to other judges! Be sure to consult legal counsel before entering into any Agreement for Judgment, including ones which have the following proposed terms negotiated: PROPOSED AGREEMENT FOR JUDGMENT TERMS: 1. All parties agree not to interfere with each others', or other occupants' quiet enjoyment of the premises during the remainder of tenants' occupancy at the premises; {This can be an effective paragraph to keep conduct in line during the remainder of a troubled tenancy, otherwise the landlord can typically file a motion for issuance of execution based upon bad conduct, and if proven, the court may allow the landlord to evict the tenant forthwith. By having the paragraph read "All parties agree" instead of "The tenant agrees" , the language appears less hostile and accusatory toward tenants, increasing the likelihood it can be successfully negotiated into the Agreement, if circumstances warrant the same. The language also reminds landlords too, to maintain a low profile during the remainder of the tenancy} 2. Except as reserved by the terms of this Agreement, all parties waive and release each other of and from any and all claims for damages of any nature, arising out of this tenancy or otherwise, from the beginning of time, to the date hereof, reserving only to the landlords any property damage claims, if any; {Understanding that tenant counterclaims are not compulsory, and therefore need not be asserted in the eviction case, a landlord who really wants to wind up all claims between the parties, should keenly seek such a broad release of all claims. It is probably wise to waive something, like rent, court costs, attorney fees, to get a release, as the release is then supported by the legal doctrine of consideration, and therefore more likely to stand a future legal challenge to the release. By "reserving only to the landlords any property damage claims, if any;" the landlord retains the right to hold the tenants liable for damages caused before their departure from the premises; assuming the landlord can track the tenant down and the tenant is not judgment proof. Even so, the inclusion of this language in an agreement keeps that sword of damacles over the tenant, to leave the premises in decent condition for fear of further legal liability.} Be careful not to use this proposed paragraph 2 in the event you have other claims for damages against your tenant! 3. Tenants agree, upon min. 24 hour advanced notice, to allow and not to interfere with, the landlords' or their agents', access to the premises to show to prospective tenants, purchasers, mortgagee or its agents, or to inspect and/or repair the apartment. 4. Tenant agree to vacate by ________, 1999, leaving the premises broom clean, in good condition, reasonable wear and tear only excepted, removing all persons holding under them, removing all their belongings, trash and debris, and deliverying all keys in their possession to the landlord or landlord's agent by that date. Landlord shall be entitled to apply for an execution for possession the next business day thereafter. 5. The landlord shall account for the $____ security deposit and accrued interest in writing and in accordance with law, within thirty days after the termination of tenancy. Tenant agrees to provide forwarding address to landlord before they vacate. {Note: Be careful landlords to comply with the requirements of the security deposit law, M.G.L. Ch. 186, Sec. 15B}, 6. During the remainder of their tenancy, the tenants shall pay use and occupancy monthly, in the amount of the last agreed upon rate of rent of $______, in montly payments of $(same amount), due on or before the first of each month, commencing _____, 1999, until the last month of vacancy. 7. The tenant agrees to pay the total rent arrears of $_____, representing rents due through ______, 1999, in equal monthly payments of $____, due on the 15th of each month, commencing ___15th, 1999, until paid in full (or alternatively: "until 3/4 of the amount due is paid, and if the same payments are timely made, the landlord waives the balance due.") {Note: Waiving some or all the rent arrears (which you may never collect anyhow) may increase the likelihood of payments: "a bird in hand is worth two in the bush." Note also, that making the payment on the arrears due on the 15th of each month, allow current rents to be paid, and may well increase the likelihood these payments are actually made}. 8. Landlord agrees to waive the judgment amount/rent arrears in the amount of $________, representing rent arrears through ______, 1999, subject to the tenants vacating the premises on or before ______, 1999, in the condition and manner described in paragraph 4, above. {Note: Because so many judgments remain uncollectable, to agree to waive the money (which you'll never collect anyway), not only gives the tenant a sense of vindication, but more readily brings them to the table to sign an agreement for judgment -- which may be particularly important to a landlord, depending upon the risks of trial and exposure to tenant defenses and counterclaims would could end up with an unexpected trial decision unfavorable to the landlord. 9. Subject to the tenants' compliance with all the terms of this agreement, and further suject to the tenant making timely payment of current rents as they become due and timely payments of the rental arrears, pursuant to paragraphs 6 and 7, above, a new tenancy shall be created between the parties. {Note: This is a paragraph only to be included if the parties agree to restore the tenancy if the tenant makes good on the arrears.} 10. In the event that the tenant fails to comply with the terms of this Agreement, the landlord may file a motion for issuance of execution with the Court, and shall be entitled to a hearing on said motion, after providing the tenant a minimum four day prior written notice to the tenant of the hearing and providing the tenant a copy of said motion, on the form provided by the Court, and in the event the landlord prevails on said motion, the landlord shall be entitled to an execution for possession, together with damages owed and costs. {Note: This paragraph, or its relative equivalent, is often found as part of the "boilerplate" court form of an Agreement for Judgment.} The inclusion of the paragraphs above, which are relevant to your particular eviction case and fact pattern, may help you reduce your risks and losses. Be careful again, to consult proper legal counsel before entering into any agreement for judgment, as this article is not intended to act as a substitute for legal advice. Some courts already incorporate some of the terms and language I have proposed above, in their Agreement for Judgment boilerplate forms. Judges statewide have somewhat different preferences and perogatives they may assert in response to your proposed Agreement for Judgment; not all judges agree with all terms. After the landlords and tenants have signed the Agreement for Judgment, typically in the Housing Court mediator's offices, the Agreement is then presented to the judge for review, approval and signature. Some judges actually require the parties to appear before the judge before the agreement is signed by the judge, so that the judge can inquire of the parties about the terms of the agreement, and the consequences of noncompliance. This all usually occurs on the same day, and all parties should walk out with a fully signed copy of the final agreement. Make sure your tenant gets a copy too. Although parties typically can execute Agreement for Judgments without utilizing the services of the Housing Court mediators, it remains best practice to still bring the tenant to the mediator for drafting and signing of the agreement; it will make it more likely that you will have less trouble enforcing the Agreement for Judgment, if it was negotiated with the services of the Court. A landlord and tenant who want to sign an Agreement for Judgment before trial date, may well be able to contact the Housing Court's mediation department before trial date, and obtain a special appointment to settle beforehand, and avoid the rush and crowds on eviction day. A majority of evictions settle; if you want to be a good landlord - learn how to settle, successfully. |
