Any landlord that has ever been involved in an eviction case knows that the ultimate goal of the case is to have the court issue the coveted “Execution for Possession”. This simple piece of paper has the magical power of authorizing a sheriff or constable to forcibly enter the apartment and remove the tenant and his/her personal property. Landlords are also aware that, to add insult to injury, the cost to move the personal property is required by law to be paid up front by the Landlord. In other words, after spending the time and money to evict the tenant, the Landlord is also required to pay for the movers and storage fee. If only we lived in Florida or Texas where the constable need only place the tenant’s property oh so gently…on the street!
For years, Landlords have begrudgingly assumed these costs with the hope that someday the legislature would recognize these inequities. For many of our clients, this is a difficult law to accept, especially where the tenant may already owe many month’s rent. Unfortunately, a recent amendment to the eviction statute has only added to the tenant’s potential rights and has also added to the confusion surrounding the eviction process.
General Laws c.239 §4 establishes the manner in which a constable may perform the physical removal of the tenant’s property, otherwise known as a “levy”. The law has always provided for the property to be removed to a licensed public warehouse and stored therein for a set period at which time it may be auctioned. The statute has also provided that the landlord is required to pay the cost of removing the property. However, the legislature recently added a provision to the statute which permitted the tenant, at or before the time of the move, to direct the movers in writing to store the property with a “warehouser or other storage facility” of the tenant’s choosing. This new provision has been interpreted by tenants and their attorneys to mean that the tenant can demand that their property be moved, at the landlord’s expense, not only to a storage facility but also to their new apartment. In other words, they argue that the tenant can sit back, wait for the constable and movers to arrive, and then demand that their items be moved to their new apartment, wherever that may be. By taking this step, they then save the cost or “hassle” of having to move their belongings and force the landlord to incur this added expense. They arrive at this position by arguing that their “storage facility” is actually their new apartment and what is the difference between a landlord being required to pay to move it to their storage unit or their apartment.
Obviously, this is an overly broad and illogical reading of this statute. Unfortunately, the legislature’s failure to define the term “storage facility” makes this statute problematic. However, the clear purpose of this statute is not to assist the tenant in having their personal items moved for them, but rather to ensure that in those cases where personal property is removed by the constable, there is a system in place to ensure that the property is safeguarded in a bonded warehouse. In other words, the purpose of this statute is to make sure that when this third party moves the personal property out, there is some oversight in the process to ensure that the items actually are placed in a safe storage facility from which they can later be recovered. Moving the tenant’s property to their new apartment obviously has no relationship to safeguarding their personal property. It has no relationship to ensuring that their property is not lost or misplaced. All it does is allow the tenant to avoid the consequence of their decision not to comply with the Court’s order that they vacate the property. In speaking with members of the Commonwealth of Massachusetts Department of Public Safety, the department charged with enforcement of this statute, they agreed with this position and with this reading of the statute. As such, we would suggest that, while the tenant can, unfortunately elect which licensed storage facility to have the property delivered to, they cannot demand that the items be moved to their new apartment. Also, we would suggest that such a request must be made in writing and must be provided before the time scheduled to commence the levy.
It should also be recognized that the decision to relocate a tenant’s personal property to their new apartment has serious practical implications for the landlord, and for the residential apartment industry in general. There is obviously an emotional effect on the landlord who, after having spent significant time and money evicting the tenant, then has to watch as the tenant receives a benefit from being evicted in the form of avoiding the cost of paying a mover or physically moving the property themselves. On a public policy basis, it would appear that the legislature would prefer to encourage tenants to take responsibility for their personal property themselves, rather than encouraging them to sit back and force the landlord to take this action. It is obviously also preferable for a tenant to remove their own personal property rather than having same seized by the constable. Again, a reading of this statute to allow relocation to the tenant’s new apartment would seem to actually encourage tenants to force a landlord to levy on an execution rather than moving their own property. Finally, basic concepts of fairness would appear to support a reading of this statute which encourages tenants to remove their own property, and which does not impose further costs and stress on the landlord.
Finally, I would note that we are actively seeking a further amendment to this statute to clarify this issue, and if possible, to reapportion the burdens imposed on landlords. In the meantime, we strongly recommend that you confirm with your constable or sheriff that when the tenant asks to have her property taken to her new apartment, we fall back on the famous words of Ronald Reagan and “Just say no “.