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Rights to Continuance

In a residential summary process case, a landlord sought possession because they accused the tenant of continuing to stay in their home after their lease term had ended. The tenant was in compliance with all other terms set forth by their tenancy. In this case, the trial judge ruled in favor of the landlord but erred in denying the request the tenant made for a continuance so that they could obtain legal counsel.

An appeal was filed, presenting the issue that the trial judge allegedly abused his discretion when he moved to deny the tenant’s request. The trial judge had denied the request the tenant made for continuance yet when doing so, the judge made no reference to the factors he was basing his decision on. Rather, he claimed that the tenant had no defense. The trial judge even made this statement before hearing any evidence that the tenant may have presented.

Prior to reviewing evidence, the trial judge explained that the case was a no-fault eviction and the tenant had no defenses. The tenant only had the representation of the landlord’s counsel when the judge stated this.

Following this statement, an undisputed point was raised that the tenant held a Section 8 voucher granted by the local housing authorities. However, presenting information that could work in either party’s favor, it was found that there was no proof any lease had ever existed–or that its term had expired, as the landlord argued.

If the lease had expired, the landlord likely would not be required to show a “good cause” for the eviction or prove that it was for a “non­discriminatory business reason” since the lease had come to an end. However, there was no such evidence.

In general, a tenant occupying public and subsidizing housing is given more procedural protection than a tenant of private housing who is facing an eviction. The tenant of a state or federally funded public housing location cannot be evicted under the law without good cause.

After denying the tenant’s request for a continuance so they could engage counsel, the court chose to accept the landlord’s assertion that it was a no-fault eviction, although no lease could be examined proving such.

Prior to the proceedings, the judge claimed that the tenant had waived his right to be represented by counsel when he failed to obtain representation from the attorney who was present the morning of the trial. However, this was not the case. Moreover, the court initially felt inclined to continue the trial for a week but ended up not doing so because the landlord’s counsel would not be available for three weeks following the trial.

During this bench trial, it was found that the tenant was current with his rent, other than an increase of $400.00 that the landlord had requested he paid each month. There were no witnesses and the outcome likely would turn had a lease been presenting showing whether or not the term had expired.

Pursuant to G.L.c. 239, §9, the tenant would be entitled to seek a stay as long as twelve months since he was over sixty years old, was a tenant for more than ten years at the location, and was otherwise current on his rent. This would be true even if the trial had been continued and the landlord prevailed.

Clearly, the trial judge had an error in judgment and abused his discretion by denying the tenant’s request for continuance under the circumstances. As such, the judgment has been vacated and the case will return for a new trial.


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Adrian Brown

Author Adrian Brown

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