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When a tenant installs an item in an apartment, such as track lighting, a chandelier, cabinetry, etc., which item is removable, but is attached to the wall, ceiling or floor of the premises, the installed item is known as a “fixture.” The standard rule in real estate law is that a fixture becomes a permanent improvement to the premises and may not be removed without the consent of the owner of the premises. However, in the area of landlord tenant law the courts generally have a bias in favor of allowing a tenant to remove a fixture when the tenant vacates an apartment; although that bias is conditioned upon there being no material damage caused to the premises by the removal of the fixture. If the landlord wants the fixture to remain then the landlord must show that the tenant intended or agreed that the fixture would remain at the premises. Additionally, or alternatively, if the landlord can show that the removal of the fixture would cause material damage to the premises then the court will likely not allow the removal of the fixture unless the tenant pays for the necessary restoration of the unit after the removal of the fixture. So, in the area of landlord tenant law the general rule is if a fixture can be removed without causing any material damage to the premises then the fixture may be removed, unless the landlord can show it was intended by the tenant that the fixture become a permanent part of the premises or that the removal will cause material damage to the premises.

I advise all tenants to first check with their landlords before installing a fixture. Indeed, most written tenancy agreements require the landlord’s advance approval to install a fixture. The landlord and the tenant should then enter into a written agreement to establish whether the fixture will stay or go when the tenant moves out.

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

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.

Tag Archives: summary process

Evictions – If a tenant installs a fixture does it become the property of the landlord?

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