Boston Housing Authority

Departments > Operations > Manager's Manual > 1 - Procedures for Non-Payment Eviction

 

I.    Introduction

The non-payment eviction process is used whenever a Manager seeks to evict a Resident for failure to pay rent. The procedures described in this section were created in compliance with state regulations, federal regulations and state statutes concerning termination of tenancies for non-payment of rent. 

Among the forms which are included with this procedure is a "Manager's Non-Payment Eviction Checklist" (Form NP-07). The checklist serves as a guide to the various steps to be followed under this procedure. The checklist should be consulted and used from the very beginning of the procedure in each case. If the Manager has any questions about procedure during any stage of the eviction process, he/she should seek guidance from the Legal Department to ensure that the case will hold up in court. Also, tenants should not be transferred if an eviction is pending. If a Resident has to be transferred during the process (i.e., due to an emergency such as fire), the Legal Department should be consulted before the transfer is completed. 

Proper documentation of every stage of the non-payment eviction process is fundamental to a successful eviction. The forms to be used are designed to satisfy the requirements of state and federal regulations, and the Boston Housing Court. The forms should not be modified by any Manager without authorization from the Legal Department. Unauthorized modifications could cause the BHA to lose its eviction case in court. 

Additionally, all notices directed to the Resident should be addressed to the Resident whose signature is on the lease. If the lease has more than one signature, the notices should be addressed to each person who signed the lease. Notices should be delivered to the Resident(s) in the manner most likely to reach him/her in the quickest time frame, in order to minimize delays in the eviction process. In-hand delivery is always the preferred method for delivering any notice to the resident. However, alternate methods are available should in-hand delivery not be possible. The notice may also be left under the Resident's door and sent by first class mail or certified mail. Experience has shown that certified mail can cause delays in the process as it is often not picked up by the Resident. Whenever a notice is delivered by either method of mail service, the Manager must allow additional time between steps in the process to ensure that the Resident has possession of the document for the prescribed period of time before the Manager proceeds to the next stage of the eviction process. If the Manager knows of either a post office box or a forwarding address for a Resident, notices should be sent to that address rather than the Resident's address at the BHA property. Evidence of delivery must be made on the section of the document entitled "Certificate of Service" on the copy retained in the Resident's file. The Certificate of Service should be signed by a permanent BHA employee.

Prior to initiating the eviction process, the Manager should make a personal inspection of the unit to ensure the unit is in compliance with the state sanitary code, unless there has been a recent Living Unit Inspection that indicates there are no violations of the State Sanitary Code. Such inspection should be made no more than thirty days before sending the notice for private conference (explained below). Any condition observed by the Manager which violates the State Sanitary Code must be corrected prior to sending the case to the Legal Department. Please do not send the case to the Legal Department unless any and all conditions have been corrected.

At times, there is more than one reason to seek eviction of a Resident. In addition to non-payment of rent, there may be a cause case pending.1 For example, a household member is arrested for selling drugs on BHA property after the non-payment eviction has been initiated. There are also times when a Resident ceases to pay rent after receiving a Notice to Quit for cause. At other times, a Resident or household member will commit another cause violation after a cause Notice to Quit has already been served on the Resident. It is possible that at or about the same time, a Resident or household member will commit various lease violations, some of which fall within M.G.L. Ch. 139, § 19, and others of which do not. There are many other possibilities.

The decision of whether and when to initiate a second eviction case must be based on a case by case determination. The Legal Department should be consulted before the Manager serves the second Private Conference Notice. Whenever there are multiple causes for eviction, and the first case has been forwarded to the Legal Department, the Manager must inform the Legal Department of any case before it is initiated while another case is pending.     

II.    Procedures for Preparing Non-Payment Eviction Cases

Step 1: Private Conference for Non-Payment of Rent

The Manager begins the eviction process on the 7th day of the second month of delinquency by the Manager sending a "Notice of Private Conference for Non-Payment of Rent" (Form NP-01) to the Resident. The Resident is invited to attend a private conference at a date and time specified in the notice. The amount of the rent arrearage is also specified. If the time of the conference is inconvenient for the Resident, he or she may call and arrange for an alternate time within a few days from the original scheduled time. If unusual circumstances arise that may justify a different date for the private conference, the Manager should consult with the Regional Counsel. This notice and the private conference itself are required by state regulations. While no particular time period is required by the regulations between the time the Resident receives the notice of private conference and the time the private conference is scheduled, at least seven days is recommended.

At the private conference, the Manager meets with the Resident and the Resident's representative, if any. The Resident may bring a representative or anyone s/he chooses to bring, including witnesses to the Private Conference. The Manager may limit attendance of persons which the Resident requests to be present to a reasonable number of people. However, only the Manager conducting the conference should be present, along with the Regional Counsel if requested by the Manager in a special case. This is an opportunity for the Resident to explain or refute the BHA's information that the Resident has failed to pay the rent. Typical subjects of discussion include: accounting errors, claims by the Resident that made payments were made but were not received by the BHA, rent set at the wrong level, unusual financial hardship, or serious violations of the State Sanitary Code.

From the BHA's standpoint, there are two purposes to be served by the private conference. First, the Manager may seek to settle with the Resident and get a written agreement, if possible, on the amount of rent actually owed. Second, the Manager may seek to obtain an agreement from the Resident that he or she will resume paying full rent and will either pay off the arrears immediately or pay an additional sum of money on a monthly basis to pay off the arrears. Such agreements should be realistic in the light of the Resident's financial ability. Managers should not, however, enter into an agreement for repayment of an arrearage which will take longer than 12 months, unless the arrearage is so large as to require the Resident to pay more than 150% of the monthly rent to repay the arrears in twelve months. Any agreement that exceeds 12 months must be approved by the Manager's supervisor. Managers shall make only one agreement with the Resident for each rent arrearage. Please remember that you will have to initiate an eviction action if the Resident fails to comply with the terms of the agreement for any reason. 

If an agreement is reached, it is important to use the "Agreement as to Amount of Rent Arrearage and Schedule for Repayment" (Form NP-04). An original and two copies should be made of the completed form. The original goes in the Resident file. One copy is given to the Resident. The other copy is sent to the Tenant Accounting Department at 52 Chauncy Street. If an agreement is modified, a new form should be used, and the same procedure followed. The form is sent to Resident Accounting so that the monthly rent bill will reflect the payment agreement. For example, if a Resident has agreed to pay $25.00 per month on his or her arrears, this figure will be stated on the bill. Managers should encourage Residents who receive public assistance, such as Temporary Assistance to Families with Dependent Children (TAFDC), to arrange for direct payment of the amount agreed to be paid. Residents who receive Social Security income may be urged to arrange for a designated payee of their benefits. When the arrearage is paid off, the amount of the direct payment can be reduced to the amount of monthly rent.

If the Resident fails to appear at the private conference or the resident does come to the private conference and no agreement is reached, the Manager must make a determination based upon his or her best information of the amount of rent that is actually owed by the Resident. If the Resident has made no agreement to repay, the Manager should make a determination to proceed with eviction and serve the Resident a "Notice of Termination/Notice To Quit for Non-payment of Rent" (Form NP-03). This Notice is described in Step 2 below.

Regardless of the outcome of the Private Conference, the Manager should document the conference by completing a "Summary of Private Conference" form (Form NP-02). This form should also be completed if the Resident failed to appear at the conference. This document may provide the Legal Department with valuable information when preparing the case for Housing Court. A copy of the summary should be delivered to the Resident, and the Certificate of Service should be completed.

Step 2: Notice of Termination/Notice To Quit For Non-payment of Rent 

The "Notice of Termination/Notice to Quit for Non-Payment of Rent" (Form NP-03) shall be served on the Resident as soon as practicable after the private conference. The Notice of Termination/Notice to Quit states the amount of rent determined to be outstanding. It advises the resident of his or her right to a hearing, under the BHA Grievance Procedures, to contest the amount of the rent and the decision to proceed with eviction. Under the terms of the BHA "Resident Grievance Policies and Procedures," the Resident is given 14 days to request a hearing before the Grievance Panel. The request must be presented in writing to the Manager or to the Grievance Panel Coordinator. The Resident may use Form NP-09. While the use of this form is strongly suggested, the Resident may present a written request in any other form. If the Resident requests a hearing within 14 days, the request should be forwarded to the Grievance Panel Coordinator at 52 Chauncy Street, Boston, MA 02111. The grievance hearing will then be scheduled.

The Notice of Termination/Notice to Quit for Non-Payment of Rent is the statutory notice that serves to terminate the tenancy. It should preferably be served personally on the Resident or an adult member of the Resident's household. If the Resident does not request a hearing, the BHA is free to proceed to court at the end of the 14 day period. However, the BHA will not proceed to court if the Resident has paid the rent or entered into an agreement during the 14 day period. In fact, Residents are entitled by law to "cure" their failure to pay rent until after the eviction case has been entered in Housing Court but only up to the Answer date. If the Resident requests a grievance hearing, the tenancy is not terminated until completion of the grievance process.
    
If all the rent is not paid or an agreement is not reached for installment payments within 14 days after the combined Notice to Termination/Notice to Quit is served, the tenancy is terminated. The Notice also makes clear, for legal purposes, that any payment made after service of this Notice is accepted by the BHA for "use and occupancy" and not "rent."

If the Resident does not request a grievance hearing, managers should go to Step 4.

Step 3: Grievance Procedure

In the case of all written requests for a grievance hearing forwarded by Managers or received directly from a Resident, the Grievance Panel Coordinator shall schedule a hearing within the time period provided in the BHA "Resident Grievance Policies and Procedures" and the BHA lease. The Grievance Panel Coordinator shall notify the Resident and the Manager of the date, time and place of the hearing.

The Grievance Panel, following the BHA "Resident Grievance Policies and Procedures" and its own procedures, if any, shall hear the grievance and make a determination as to whether rent is due. If the Panel determines that resident is in arrears and there is no satisfactory agreement reached as to the repayment of the arrears, then the Panel should vote to permit eviction of the resident for non-payment of rent.

After the hearing, the Grievance Panel will notify the Resident and the Manager of its decision in writing. If it finds that the Resident is in arrears on rent payments, then the decision will ordinarily be to proceed with eviction for non-payment. It is not necessary to serve a new Notice of Termination/Notice to Quit.

Step 4: Inspecting the Apartment 

Before any non-payment case is forwarded to the Legal Department the Manager shall inspect the subject apartment to determine whether there are code violations, unless a recent inspection (no more than thirty days before sending the Notice of Private Conference) was made and there are no code violations. If code violations are present they must be corrected before the case is referred to the Legal Department. The Legal Department will not normally commence an eviction action while there are outstanding code violations. The Manager will then complete the form entitled "Manager's Report to Legal Department on Conditions of Apartment" (Form NP-05) indicating the results of the inspection as well as a summary of any information available (such as past work orders and reports of maintenance defects from staff and residents) as to past code violations for the Resident in the subject apartment.

The inspection step serves two purposes. First, it provides the Legal Department with a good indication of the condition of the apartment during the period when the rent was not being paid. The other purpose is to expedite the correction of code violations so that the apartment meets code standards by the time the case goes to court.

If conditions in an apartment are sufficiently bad, the Resident can file claims based on those conditions against the BHA as part of the court eviction action. Also, claims maybe be made for past periods where conditions existed and were not quickly remedied after notice and can be offset against current rent. In either case, the BHA could end up owing money to the Resident, rather than the Resident owing the BHA.    

Step 5: Preparing Proposed Settlement

Generally, the Legal Department will either enter into court agreements or go to trial in non-payment eviction cases. Once a case has been entered in Housing Court, and a trial date set, the Legal Department may enter - in consultation with the Manager - into an Agreement for Judgment with the Resident who is in arrears. 
    
An efficient way to inform the Legal Department of a Manager's settlement proposal is to complete Form NP-08, the "Proposed Settlement" form. Managers may use this form to indicate realistic settlement parameters. Such parameters must take into consideration the balance due and the Resident's ability to pay use and occupancy arrearages. The Legal Department will use the Proposed Settlement for drafting the Agreement for Judgment.

In the context of non-payment evictions, the Agreement for Judgment in essence has the force and effect of a court-ordered payment plan. It allows for repayment of arrearage and of use and occupancy over a set period of time. Until then, the Resident is not in good standing. If the Resident pays the arrears and the current use and occupancy as indicated in the Agreement his/her tenancy is reinstated when the payment plan is completed.
    
In cases where the Resident fails to keep the Agreement for Judgment, the Manager must complete a Request for Execution (Form NP-10). The Legal Department will process the request and file a Motion for Issuance of Execution with the Housing Court.

Step 6: Transmittal to Legal Department

The file, along with a "Memorandum or Transmittal for Non-Payment Evictions" (Form NP-06), shall then be forwarded to the Legal Department for the commencement of an eviction action. At a minimum, the following must be in the file.

a.    Copy of the lease
b.    Notice of Private Conference (Form NP-01)
c.    Summary of Private Conference (Form NP-02)
d.    Notice of Termination /Notice To Quit For Non-payment of Rent (Form NP-03)
e.    Decision of Grievance Panel (if any)
f.    Copy of any written agreement with Resident (Form NP-04)
g.    Manager's Report of Condition of Apartment (Form NP-05)
h    Memorandum of Transmittal for Non-Payment Eviction (Form NP-06)
i.    Manager's Non-Payment Eviction Checklist (Form NP-07)
j.    Resident Request for Grievance Hearing (Form NP-09)
k.    Military Affidavit (Form NP-10)
l.    Proposed Settlement (Form NP-08)

Files not containing each of the appropriate items will be returned to the development for completion. Failure to send all necessary items will therefore delay the eviction process.

III.    Court

A.    The Legal Department will represent the BHA in the court proceedings. All evictions will be brought in the Housing Court Department, City of Boston Division.

B.    After the Resident either failed to request a Grievance Hearing, or went to a Grievance Hearing and the BHA was allowed to proceed to court, and the Manager has delivered the entire case, the Legal Department will have a constable serve the Resident with a summary process summons and complaint.  The summons and complaint will state the date the Resident must appear in court, and the entry date of the court case.

C.    If the Resident pays the entire balance due on or before the entry date, the BHA must accept the payment and close the case.

D.    If the Resident fails to appear in court, a default will enter and the BHA should win the case. An execution will be sent to the Legal Department within a few weeks. The Legal Department will notify the Manager, and send the execution to a constable, who will evict the Resident.

E.    If the Resident appears in court the BHA attorney will try to negotiate an agreement with the resident to settle the case. In most cases the proposed agreement will give the Resident a reasonable time to make the arrearage and use and occupancy payments in monthly installments. The terms of the agreement to be proposed will be determined by the Manager and the assigned attorney.

F.    If an agreement is reached, it is put into writing and signed by a judge of the Housing Court. The agreement, generally entitled "Agreement for Judgment", is legally binding and settles the case.

G.    If an agreement cannot be reached, a trial will be scheduled. The assigned attorney will have very little control over this scheduling. An attorney representing the Resident will usually delay the trial as long as possible. If discovery is filed, it is important to provide timely responses, as this may delay trial/settlement of the case if the Manager is unresponsive.

H.    After the trial is held, the judge may take weeks or even months to write a decision. Once a decision is rendered, the resident has ten days to appeal if the decision is favorable to the BHA. If the decision is favorable to the Resident, the BHA will likewise have ten days to file a Notice of Appeal. If there is no Notice of Appeal, an execution will be sent to the Legal Department. The Legal Department will send the execution to a constable, who will evict the Resident.

I.    If there is an appeal, the Resident may remain in the premises until the appeal is decided. Tenants have an absolute right to appeal. An appeal can take a year or two to be decided. Sometimes an appeal may take longer. If there are times that, after a Resident loses at trial, the Resident simply wants time to move, usually the BHA will agree to give the Resident a reasonable time to move if the Resident agrees not to appeal the case. 

DETAILED PROCEDURES FOR NON-PAYMENT EVICTION

 

Development Manager

1. Determines the delinquency meets the policy criteria and that there are no violations of the Sanitary Code in the unit.

2. Begins preparation of "Manager's Checklist" Form NP-07

3. Schedules a private conference for non- payment of rent (preferably at least 7 days after notification to Resident).

4. Prepares "Notice of Private Conference for Non-Payment of Rent" (Form NP-01).

5. Personally delivers "notice" to Resident and completes Certificate of Service on the copy retained in the Resident's file.

Resident

6. Receives "notice". (Form NP-01)

7. Determines if time & place are acceptable.

8. If they are acceptable, goes to step 11.

9. If unacceptable, calls Manager to request rescheduling or change of location.

Manager

10. Changes conference time or location.

Manager & Resident

11. Go to private conference.

Manager

12. Tries to negotiate agreement for repayment with Resident

13. If agreement negotiated, establishes a repayment schedule and prepares "Agreement as to Amount of rent Arrearage and Schedule for Repayment" (Form NP-04)

14. If Resident receives public assistance, encourages Resident to arrange direct payment of monthly rent and repayment amount.

15. Presents copy of Agreement to Resident, files original in Resident's file, and forwards copy to Resident Accounting Department at 52 Chauncy Street, Boston.

16. Prepares a summary of the Private Conference for the Resident's file (Form NP-02). This is additional documentation in the event an eviction action is filed with the Housing Court by the Legal Department.

17. If no agreement is reached or if the Resident fails to comply with the agreement, updates Form NP-07 and prepares: "Notice of Termination/Notice to Quit for Non-Payment of Rent," (Form NP-03).

18. Delivers Form NP-03 to Resident or adult member of Resident's household along with a "Resident Request for Grievance Hearing" (Form NP-09), and completes the corresponding Certificates of Service on the file copies.

Resident

19. Receives Form NP-03 and Form NP-09.

20. Decides whether or not to request hearing before BHA Grievance Panel.

21. If decides to request hearing, submits Form NP-09 to Manager or Grievance Panel Coordinator within 14 days.

Manager

22. If Manager receives request, forwards it to Grievance Panel Coordinator.

Grievance Panel Coordinator

23. Schedules hearing.

24. Notifies Resident and Manager of hearing date, time and location.

Grievance Panel

25. Determines if rent is in arrears.

26. Seeks an agreement with Resident regarding amount and repayment schedule

27. Determines if eviction is appropriate.

28. Notifies Manager and Resident of outcome of hearing.

Manager

29. Updates Form NP-07.

30. If decision is not to evict resident, stops proceedings, and consults with legal department about an appeal.

31. If Resident does not request a hearing or if the Grievance Panel's decision is in favor of eviction, inspects unit to determine whether any violations to State Sanitary Code exist.

32. If violations exist, initiates necessary work orders to bring unit back into compliance with code.

33. If no violations exist or the needed repairs are made, 
 (1) completes "Manager's Report on Condition of Apartment" (Form NP-05)
 (2) updates Form NP-07

34. Prepares "Memorandum of Transmittal for Non-Payment Eviction (Form NP-06).

35. Prepares "Proposed Settlement" (Form NP-08)

36. Forwards "memorandum" with all support documentation to Legal Department for commencement of eviction action.

Legal Department

37. Receives case file and reviews to determine if all required documents are included.

38. If not, requests and obtains missing documents.

39. Prepares to file case for eviction.

 



1. Cause evictions are discussed in other sections of this manual. Please review the relevant section when initiating a cause case.