Unauthorized subletting, nonpayment of rent and failure to meet tax or insurance obligations are the most common reasons commercial landlords in Massachusetts seek to evict. Commercial evictions can be costly and the legal process is exacting. “I would never recommend going it alone,” says G. Emil Ward, a real estate attorney in Brighton, Massachusetts. Expect to invest several hours in research and preparation if you decide to act as your own council in an action to evict a commercial tenant in Massachusetts.
Read the lease carefully for the delineated terms under which the lease can be terminated. Pay particular attention to any “notice to cure” clause; standard in Massachusetts leases, the cure period allows tenants a specific period in which to correct the breech. Generally the cure period ranges from 14 to 30 days and a tenant must be served with the “notice to cure,” and the notice period must expire before any action to evict can be undertaken.
Serve the tenant with a "notice to pay or quit” if she fails to cure the breech within the specified time. Refer back to the lease to determine how long the tenant will have to respond; commercial leases usually dictate 14 to 30 days, but the period dictated by individual leases may vary considerably.
Go to the clerk of the district court where the property is located and obtain a “summons and complaint.” According to Ward, “This is where you need to get real friendly with your calendar.” Massachusetts is exacting about the proper completion of this form particularly the dates you are required to enter. The law requires the “entry date” be a Monday not less than seven or more than 30 days following the service date. If you serve the summons on Monday the sixth, the first possible “entry date” would be the following Monday, the 13th. The original trial date is automatically set on the second Thursday after the “entry date,” which for this example would be the 23rd.
Expect the tenant to file an answer to your complaint. Massachusetts law mandates that counterclaims and discovery be filed with the answer. By virtue of a commercial tenant filing an answer, the court date is automatically reset 14 days in the future, making it the 14th day of the next month.
Take all documentation supporting your complaint of breach to court; ensure you have proof of correct service for the “notice to cure,” "notice to pay or quit” and the “summons and complaint.” If you have witnesses who can substantiate your claim, arrange for them to be in the court at the prescribed day and time. The judge will hear the evidence and enter a ruling on your petition to evict a commercial tenant in Massachusetts.
Ward advises landlords to count the cost of evicting a commercial tenant on their own. “There is a lot of money involved in commercial tenancies," he says. "Rents are often $1,500 a month or more; the loss of just a couple months rent more than covers the cost of experienced representation.”
Pay attention to time frames and dates; minor errors here can result in your case being thrown out. Serving a "notice to pay or quit” even one day before the “notice to cure” expires or inadvertently setting the “entry date” 35 days out or on a Tuesday will force you to start the entire process over. This is crucial. “If (landlords) mess this up,” warns Ward, “the case can be lost on procedure alone.”