Monthly Archives: March 2010

Evictions – An error in filing the complaint can result in dismissal of the case.

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In handling evictions for landlords and tenants I often see some confusion regarding the process for filing the eviciton complaint.   If the landlord properly follows the procedure then the the complaint is not subject to dismissal.   But if there is an error in the process then the tenant will naturally move to dismiss the complaint based upon that error.   What follows is brief overview of the process involved in the filing of  an eviction  complaint.

Unlike other civil actions, in an eviction proceeding the landlord must purchase a standard form from the court to file the eviction.   The form is called the “Summary Process Summons and Complaint.”  The form has blank sections that the landlord fills in, including such information as the landlord’s name, the tenant’s name, the address of the premises, the amount of past due rent, and the reason for the termination of the tenancy. 

 On the form, the landlord must designate an “entry” date, which is the date that the Complaint is entered (i.e. filed) with the Court.  The entry date is always on a Monday.  The tenant must be served with the Complaint at least one week prior to the designated entry date.  In setting the entry date the landlord should remember that the tenant cannot be served more than thirty days after the entry date; nor can the tenant be served any earlier than seven days after the entry date.  The tenant’s “answer” date is always the Monday after the entry date.  The tenant must file the answer with the Court and also serve a copy of the answer upon the landlord no later than the answer date.   Although, a tenant is not required to file answer in an eviction proceeding so the failure to file an answer does not necessarily have a negative effect for the tenant. 

The trial is scheduled to be held ten days after the entry date; so the trial is always scheduled for a Thursday.   Under the law, eviction proceedings are deemed to commence on the date that the tenant is served and not on the later designated entry date.  So a landlord should be sure that the notice to quit has expired before the tenant is served with the complaint; since if the tenant is served before the expiration of the notice to quit the Court will dismiss the landlord’s action as being premature.  On or before the entry date, the landlord must file in the Court the original summons and complaint with proof of service, a copy of the notice to quit with proof of delivery, and the entry fee charged by the Court.

If the action is commenced in the District Court, either party may transfer the action to the Housing Court (so long as the premises are in the jurisdiction of one of the Housing Courts).  The party seeking to  transfer the case must complete and file a transfer form in both the District Court and the Housing Court.   The transfer form is available in the District Court and the Housing Court.   The transfer forms must be filed in the Courts no later than the day before the trial date.   But if a party does not timely file the transfer forms the Court may still allow a transfer thereafter to the Housing Court upon a motion and a showing of cause for the transfer.  Once a request for transfer is received by the District Court the trial date is  canceled and is later rescheduled by the Housing Court.   A delay of at least two weeks usually occurs before the Housing Court schedules a new trial dated.

At Topkins & Bevans we have years of experience in handling commercial and residential evictions on behalf of landlords as well as tenants.   If you have need of an eviction attorney please contact Topkins & Bevans so that a skilled attorney may assess your case and guide you through the process

When is an Offer to Purchase a P&S? The answer, Almost Always!

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Many people that deal with real estate on a daily basis do not realize the ramifications of a signed Offer to Purchase Real Estate (the “Offer”). If the Offer meets the requirements of the Statute of Frauds, the parties intend to be bound and the other essential contract terms are present, presto, you have a Purchase and Sale Agreement or an enforceable contract to purchase real estate (“P&S”).

1 The Requirements of the Statute of Frauds:

A contract for the sale of land must be in writing and signed by the parties or an authorized agent of the parties. The parties would be the buyer and seller. Make sure the record owner of the property is signing the Offer. The property must be described so that it can be identified.

Compliance with the Statute of Frauds does not necessarily require a purchase price, a time to complete the transfer or the quality of title that has to be conveyed Inflatable Arches.

2. Intention to be Bound:

It is not sufficient to make the offer contingent upon the execution of a P&S. If the parties do not want to have the Offer become a P&S, they must include language that is similar to “this offer is intended only as a memorandum of the anticipated agreement and the parties do not intend to be bound but its terms.” The inclusion of this language may not be enough for a court to find that the Offer was a P&S but it gives you a much stronger argument.

3. Essential Contract Terms

The parties are indentified, purchase price, title condition and a closing date. In certain cases even these terms have been determined to be non-essential. Most of the Standard Offers used contain all of the essential terms and a binding agreement will be found. So if you are completing an Offer to Purchase assume it can be determined to be a P&S. If you assume this you must make sure that all of the anticipated terms of the transaction are included.

Your continued conduct and actions will also determine your ability to enforce the contract. If you do not comply with all of the terms of the offer your ability to enforce the Offer as a P&S will be significantly negatively impacted.

So before you execute that Offer make sure you have met with and discussed it with an attorney that will be representing your interests as a buyer or seller, we recommend that you contact us Topkins and Bevans.

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