Allen H. DAVIS
William COMERFORD & another.
May 9, 2019.
N.E.3d 377] Summary Process . Landlord and
Tenant, Eviction, Tenancy at sufferance, Use of
premises, Habitability. Practice, Civil,
Counterclaim and cross-claim, Affirmative defense.
SUMMARY PROCESS. Complaint filed in the Southeast Division of
the Housing Court Department on June 11, 2018. A motion for
use and occupancy payments was heard by Irene H. Bagdoian, J.
application for leave to prosecute an interlocutory appeal
was allowed by Mary T. Sullivan, J., in the Appeals
Court, and the appeal was reported by her to a panel of that
court. The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
D. Hardy-Doubleday, Cambridge, for the tenants.
J. Gormley, Brockton, for the landlord.
Patricia A. Whiting, for Harvard Legal Aid Bureau, amicus
curiae, submitted a brief.
Vickery, for MassLandlords, Inc., amicus curiae, submitted a
Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
question presented in this case is whether a judge has
authority to issue orders for interim use and occupancy
payments during the pendency of a summary process eviction
action, and, if so, the circumstances [133 N.E.3d 378] under
which it is appropriate to exercise that authority. We
conclude that, following motion by a landlord, a court has
statutory and equitable authority under G. L. c. 111, § 127F;
G. L. c. 239, § 8A (§ 8A); G. L. c. 185C, § 3; and G. L. c.
218, § 19C, to order a tenant at sufferance to make interim
use and occupancy payments during the pendency of an eviction
action. To exercise that authority, the judge, on motion by
the landlord, must hold a use and occupancy hearing where the
factors and circumstances described infra are
considered, in particular whether the summary process action
has been prolonged and whether the tenant is entitled to
withhold or abate rent payments due to habitability issues
that reduce the fair value of the rental premises or has
other counterclaims against the landlord that may result in
rent offsets. We further conclude that payment into an escrow
account maintained by the court or counsel for one of the
parties typically will provide sufficient protection to a
landlord, but we clarify that a judge may order payments
directly to a landlord if certain additional factors are
present, such as where the landlord demonstrates that use and
occupancy payments are necessary for the landlord to pay a
mortgage on the premises or meet other pressing financial
obligations. In the instant case, we vacate the judges order
for use and occupancy payments and remand the matter for
further proceedings consistent with this
December 2014, the defendants, William and Gina Comerford
(tenants), signed a lease agreement to rent a single-family
home in Brockton from the plaintiff, Allen H. Davis
(landlord), for $1,700 per month. The lease specified that
the tenancy would be "AT WILL" and "may be
terminated by a written notice given by either party to the
other before the first
day of any rental period and shall be effective on the last
day of the rental period, or thirty days after such notice
has been given, whichever is longer." The tenants
also gave the landlord two $1,700 checks for use as a
security deposit and the last months rent.
June 2017, the landlord decided to sell the house and
provided the tenants with a handwritten notice to quit
stating that he was terminating their tenancy and that they
would have to vacate the premises within thirty days. The
tenants asked the landlord if they could remain in the house
for a few more months and offered to pay a higher rent
amount. The landlord agreed to let the tenants stay for a
rent of $2,125, and the tenants promised to move out within
three months. After discussion with the tenants, the landlord
applied the last months rent deposit towards the rent for
Although the tenants did not move out in August 2017, the
landlord took no further action until April 14, 2018, when he
provided the tenants with a handwritten thirty-day notice to
quit stating that he was terminating the tenancy and that
they should vacate the premises by May 31, 2018. In early May
2018, the landlord applied the tenants $1,700 security
deposit [133 N.E.3d 379] towards the May rent. The landlord
claimed that this left an outstanding balance of $612 for the
12, 2018, the tenants counsel sent the landlord a letter
requesting all records in connection with the tenancy
pursuant to G. L. c. 186, § 15B, and making a "formal
demand for the security deposit and interests." The
landlord did not respond to this request.
17, 2018, the landlord served the tenants with both a
fourteen-day notice to quit for nonpayment of $612 in May
rent and a thirty-day notice to quit terminating the tenancy
at will. That same day, the tenants asked the
board of health of Brockton to conduct an inspection of the
premises. After viewing the premises on June 15, the health
inspector sent the landlord an inspection report stating that
he was in violation of a city ordinance
requiring a "certificate of fitness" that the
premises complied with the State sanitary code and
documenting several specific violations of the codes
"minimum standards of fitness for human
habitation." The landlord acknowledged receipt of
the inspection report.
30, 2018, the tenants counsel sent the landlord a "[G.
L. c.] 93A demand letter." The letter again requested
the records concerning the tenancy and the security deposit
pursuant to G. L. c. 186, § 15B. In addition to violations of
G. L. c. 93A, it also alleged breaches of the warranty of
habitability and covenant of quiet enjoyment, and retaliatory
eviction based on the tenants request of the health
inspection. The letter claimed that "financial
compensation ... in the amount of $6,375.00 (equal
to three months rent) [was] warranted" in light of the
"significant difference in price between the fair market
value of the [p]remises in their defective state and the
current rent therefor." This letter also enclosed a $612
check purporting to cure the fourteen-day notice to quit,
which the landlord deposited.
June 4, 2018, after the tenants declined to vacate the
premises, the landlord served the tenants with a summary
process summons and complaint, alleging "failure to pay
rent" and itemizing unpaid rent of $612 for May and
$2,125 for June. In early June, the tenants sent the landlord
a check for the June rent, but, according to the landlord,
the check twice was returned for insufficient funds when he
attempted to cash it.
15, 2018, the tenants filed an answer in which they raised
affirmative defenses and counterclaims alleging breach of the
warranty of habitability and the covenant of quiet enjoyment;
retaliatory eviction; and violations of the consumer
protection statute, G. L. c. 93A, § 2, and the security
deposit statute, [133 N.E.3d 380] G. L. c. 186, §
15B. The answer identified a number of
in the premises, asserted that the tenants had
"repeatedly apprised the [l]andlord of the unlawful
living conditions," and claimed damages in the amount of
the difference between the fair market value and the
defective value of the premises. In their answer, the
tenants also included a jury demand on all issues.
of the Housing Court held a hearing on July 11,
2018. At the hearing, the tenants confirmed
their request for a jury trial. The judge scheduled a
pretrial conference for August 29, 2018, to set a trial date.
He also ordered that the tenants "pay July use and
occupancy, if not already completed," to the landlord
and, commencing on August 1, "timely pay into their
counsels [Interest on Lawyers Trust Account (IOLTA account)
] monthly use and occupancy pending further order of the
court." Per the order, the tenants paid the landlord the
July use and occupancy and thereafter began depositing
monthly use and occupancy payments of $2,125 (the last
previously agreed-upon rent) into their attorneys IOLTA
August 17, 2018, the tenants filed a motion for partial
summary judgment with respect to their allegations of the
landlords violation of G. L. c. 186, § 15B, and G. L. c.
93A, as well as the landlords claim for eviction. At a
subsequent hearing, a different Housing Court judge denied