Tenant fighting eviction after 34 years in same unit

BOSTON — George H.W. Bush was President. The Berlin Wall fell. And Juan Diaz moved into an apartment on Oak Street in Hyde Park. It all happened in 1989.

Diaz is still there — but won’t be for much longer if his landlord persists in her efforts to evict him. Efforts that started off rather clumsily — with a note last fall indicating Diaz had 30 days to get out.

“I don’t sleep, I don’t eat,” Diaz said through an interpreter. “You have to be in this position to know what it feels like. Which is why I speak to everyone else who is going through this, too, because I understand what they’re going through.”

What Diaz is going through, in legal terms, is a no-fault eviction.

“Which means that the tenant is paying the rent and has been a good tenant, but nevertheless is facing eviction,” said Zafiro Patino, a community organizer for the tenant’s rights group City Life/Vida Urbana. “Sometimes they want to raise the rent quite a lot. Other times they need the unit for a member of the family.”

The latter is the purported reason why Diaz was asked to vacate his apartment, which sits above a trio of small businesses — a pizza joint, a tax preparation shop, and a wireless store.

There was just one problem with the property owner’s eviction notice: it isn’t legal.

“The landlord has to start the process in court,” Patino said. “We advised him not to leave because the landlord has no real authority to take him out of his home. The only person who can evict you from a home is a judge.”

Diaz took City Life’s advice and stayed put — each month sending in his rent, $1,350 for his one-bedroom unit. The landlord accepted those checks — and that was a mistake.

“When you begin an eviction process, if you’d like to assure that you’re able to evict the tenant, you have to reserve your rights,” said Carly Margolis, an attorney with Greater Boston Legal Services. “Meaning that you have to state that if you, the tenant, pay me anything — it’s not rent. It’s just interim payments for you using the apartment.  You actually have to clarify that in the eviction notice. However, this landlord failed to do that and my client continued to pay rent diligently every month.”

Margolis said that those payments, in a legal sense, essentially reset the tenancy clock.

“He now has a new lease,” she said. “Basically, a de facto lease agreement and they no longer can evict him. They’d have to start from scratch.”

It’s unknown whether the property owner will want to do that. She was expected to appear at a pretrial hearing on Diaz’s eviction Tuesday in Boston Housing Court and did not show up with her attorney.

During that court appearance Margolis filed a motion to dismiss the case — based on the premise that the property owner, inadvertently, began a new lease by accepting those monthly checks.

“It could create a phenomenon where the landlord continues and continues to evict,” said Margolis — a process which can take anywhere from two months to a year. “Hopefully not. Hopefully they come to the table and negotiate with us because we’re just trying to work out an agreement  to stabilize Mr. Diaz’s tenancy.”

The judge will hear arguments over the Motion to Dismiss next week.

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