No. In Massachusetts, an execution for possession of a home must issue within three months after the eviction judgment, unless a court order or an agreement filed with the court paused that clock. Once the landlord lets that period run out, the judge has no power under that statute to issue a new one. This is a published decision of the Appeals Court and is binding statewide.
What happened
A landlord sued two tenants of a Cambridge apartment for nonpayment of rent in March 2021. The tenants did not appear for trial, and a default judgment entered on August 30, 2021. An execution, the court paper that lets a sheriff or constable carry out the eviction, issued on September 22, 2021. The landlord never used it. It later found that the execution was missing the apartment’s address, but it did not ask the court to correct it, and the execution expired. In March 2022 the landlord asked the court to reissue the execution, and a second execution issued in June 2022. The tenants then moved to vacate the default judgment and asked the court to recall the new execution.
What the court decided
In Fort Point Investments, LLC v. Kirunge-Smith, 103 Mass. App. Ct. 758 (2024), the court ruled on two issues.
The default judgment stood. Under Mass. R. Civ. P. 60(b)(1), a judge may set aside a judgment for excusable neglect if the motion is filed within a reasonable time. The court applied the factors from Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426 (1979), including how promptly the party acted and whether its defense had merit. The tenants filed nearly ten months after judgment, months after they learned of the execution, and after the judge had invited them to file sooner. They filed no affidavits. Their argument that the landlord’s acceptance of RAFT rental assistance barred the eviction was not strong enough on this record, because the RAFT payments did not cover all of the unpaid rent. The court did not decide what accepting RAFT funds requires of landlords in general.
The second execution had to be recalled. G.L. c. 235, § 23 sets two clocks for an execution for possession of a home. The execution must issue within three months after judgment, and it must be levied within three months after it issues. The first clock stops only while issuance is stayed by court order or by an agreement of the parties filed with the court. Here the first execution issued on time, but the landlord never levied on it. By the time it asked for a new one, the three months after judgment had long passed, and nothing had paused the clock. The judge therefore had no authority to issue the execution again.
The trial judge had excused the delay because the first execution was defective and because the parties were negotiating over RAFT assistance. The Appeals Court held that the statute has no exception for either reason. The landlord could have asked to have the execution corrected, or filed an agreement or a motion to stay issuance while talks went on. It did none of those things.
The court reversed the order refusing to recall the execution and sent the case back to the Housing Court to recall it. It left open whether other statutes might give a landlord another way to obtain a new execution.
What this means for you
An eviction judgment does not give a landlord unlimited time. If the execution was not issued within three months after judgment, and no court order or filed agreement paused that clock, a late execution can be challenged. The same is true when a landlord holds an execution until it expires and then asks for a new one.
The decision also carries a warning for tenants. A default judgment is hard to undo if you wait. The tenants here lost their motion to vacate largely because they filed it many months late and without sworn statements.
Notice what the landlord could have done. A written agreement filed with the court, or a stay order, would have stopped the clock. If you negotiate with your landlord after judgment, a filed agreement may keep the landlord’s right to an execution alive. Read any agreement carefully before you sign it.
What to do now
- Find the date of the judgment and the date the execution issued. Both appear on the court docket, and the execution states its issue date.
- Count three months from the judgment and three months from issuance. Check whether any stay order or filed agreement paused the clock.
- If a late execution issues, ask the Housing Court right away to recall it under G.L. c. 235, § 23.
- If you missed your trial, move to vacate the default promptly and attach a sworn affidavit explaining why.
- Get legal advice before you sign any agreement after judgment.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. Housing Court deadlines are short.
