Mass. Unif. Summary Process R. 13

Rule 13

Execution shall issue upon application, but not prior to the termination of the time limits imposed by applicable law and by the relevant provisions of Rules 60 and 62 of the Massachusetts Rules of Civil Procedure.

Commentary

Section 5 of Chapter 239 of the General Laws prohibits the issuance of execution in a summary process action prior to the expiration of ten days after the entry of judgment. If appeal is claimed, Mass. R. Civ. P. 62(d) stays execution pending appeal.

When the defendant moves for a waiver of appeal bond, Section 5 of Chapter 239 also prohibits the issuance of execution prior to the expiration of six days from the court's decision on the motion, or prior to the expiration of the time specified for the taking of appeal, whichever is later.

The statute also provides that where a defendant seeks review of the court's ruling on the motion for waiver of appeal bond, no execution may issue until the expiration of five days from the date defendant receives notice of the decision of the reviewing court. Of course, if the defendant posted bond after losing an appeal of the trial court's denial of waiver of that bond, execution would continue to be unavailable pending the completion of the appeal of the underlying judgment under Rule 62(d), cited above.

Note should also be made of the special provision regarding execution in G.L. c. 239, § 1A (recovery of possession before termination of a lease), and the provisions of G.L. c. 239, §§ 9 and 10 regarding application for stay for judgment and execution.