RESIDENTIAL LANDLORD-TENANT BENCHBOOK Third Edition Editor Wayne E. Hartwell, Esq. Social Law Library Contributor Hon. David D. Kerman Editorial Committee Hon. Mark S. Coven Massachusetts District Court Hon. Dina E. Fein Hon. David D. Kerman Hon. Jeffrey M. Winik Affiliated with the Social Law Library Major funding by the Massachusetts Bar Foundation
Franklin N. Flaschner Judicial Institute, Inc. John Adams Courthouse One Pemberton Square, Suite 4300 Boston, Massachusetts 02108-1727 Phone: 617-226-1565 Fax: 617-226-1564 www.flaschner.org 2013 by Franklin N. Flaschner Judicial Institute, Inc. All rights reserved. Published 2013
Foreword As the Hon. John G. Martin, (ret.), remarked in the Foreword to the 1998 edition of the Flaschner Judicial Institute s Residential Landlord-Tenant Benchbook, Residential landlord and tenant law presents some of the more factious and procedurally complex issues of law in Massachusetts[,] replete with the potential pitfalls of practice and decision making faced by judges and lawyers. It is for that reason that those who practice and adjudicate in that arena have been fortunate to have had at hand the various earlier editions of this work as a comprehensive reference and resource manual. The idea of the Benchbook, together with a complementary judicial education course, was proposed originally by Attorney Toni Lee Pomeroy in 1991. Attorney Pomeroy and Hon. John G. Martin took leading roles in developing the first edition of the Benchbook and in superintending the 1998 edition. Hon. David D. Kerman and Hon. William H. Abrashkin (ret.) of the Housing Court also devoted much time and made significant contributions to the success of the 1998 and earlier editions. By 2004, however, the 1998 edition was getting a little long in the tooth. The Flaschner Editorial Board concluded that a new edition was in order and called upon Wayne E. Hartwell, Esq., of the Social Law Library to act as editor. Rather than subsume the Benchbook s former content in an entirely new edition, it was decided to call this version the Revised Edition (2005) to recognize the fact that very much of the first contributors work was alive and well in that edition. For this, the Third Edition, an editorial committee composed of Hon. Mark S. Coven, Presiding Justice, Quincy District Court, Hon. Dina E. Fein, First Justice, Western Housing Court, Hon. David D. Kerman, and Hon. Jeffrey M. Winik, First Justice, Boston Housing Court, was appointed to develop suggestions for how the work could be improved. The committee s valuable input is greatly appreciated. In this edition, Chapter One, Overview of Residential Summary Process, by Hon. David D. Kerman, First Justice, Northeast Housing Court, is updated and expanded from the Revised Edition; Chapter Two, Common Legal Issues, is Attorney Pomeroy s Chapter One from the 1998 edition as updated through the Revised Edition to the present. Chapter Three contains Judge Kerman s Pattern Jury Instructions, also as updated and expanded from the 2005 edition. Those contributions, and those of others, continue to be greatly appreciated. The regulations, statutes, and cases chapters have been updated through July 2012 and will serve as accurate references for the judiciary and practitioners. I am pleased to extend words of appreciation to Attorney Hartwell for once again marshaling this work to fruition and to Michael Huppe for his usual meticulous work in copyediting and in designing the Third Edition. The Massachusetts Bar Foundation also deserves thanks for providing the Flaschner Judicial Institute with annual support without which this Benchbook and other judicial education initiatives would not be feasible. Robert J. Brink, Executive Director Flaschner Judicial Institute iii
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Contents Chapter 1: OVERVIEW OF RESIDENTIAL SUMMARY PROCESS...1 Chapter 2: COMMON LEGAL ISSUES...51 Chapter 3: PATTERN JURY INSTRUCTIONS; VERDICT FORMS...93 Chapter 4: HOUSING COURT FORMS...161 Chapter 5: UNIFORM SUMMARY PROCESS RULES...177 Chapter 6: STATUTES...191 Chapter 7: REGULATIONS...261 Chapter 8: CASE LAW...307 Table of Authorities...719 Table of Cases...735 Index...751 v