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Davis v. Comerford

Appeals Court of Massachusetts, Bristol

September 16, 2019

Allen H. DAVIS
William COMERFORD & another.[1]

         Argued May 9, 2019.

         [133 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.

         An 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.

         Arthur D. Hardy-Doubleday, Cambridge, for the tenants.

         David J. Gormley, Brockton, for the landlord.

          Patricia A. Whiting, for Harvard Legal Aid Bureau, amicus curiae, submitted a brief.

         Peter Vickery, for MassLandlords, Inc., amicus curiae, submitted a brief.

         Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.


         KAFKER, J.

Page 165

          The 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 judge’s order for use and occupancy payments and remand the matter for further proceedings consistent with this opinion.[2]

         1. Background .

         In 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.[3] 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

Page 166

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."[4] The tenants also gave the landlord two $1,700 checks for use as a security deposit and the last month’s rent.

          In 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 month’s rent deposit towards the rent for August 2017.

          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 May rent.

         On May 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.

         On May 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.[5] 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

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requiring a "certificate of fitness" that the premises complied with the State sanitary code and documenting several specific violations of the code’s "minimum standards of fitness for human habitation."[6] The landlord acknowledged receipt of the inspection report.

         On May 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.

          On 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.

         On June 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.[7] The answer identified a number of specific defects

Page 168

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.[8] In their answer, the tenants also included a jury demand on all issues.

         A judge of the Housing Court held a hearing on July 11, 2018.[9] 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 counsel’s [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 attorney’s IOLTA account.

         On August 17, 2018, the tenants filed a motion for partial summary judgment with respect to their allegations of the landlord’s violation of G. L. c. 186, § 15B, and G. L. c. 93A, as well as the landlord’s claim for eviction. At a subsequent hearing, a different Housing Court judge denied ...

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