ALLEN H. DAVIS
WILLIAM COMERFORD & another.
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 for the tenants.
J. Gormley for the landlord.
Patricia A. Whiting, for Harvard Legal Aid Bureau, amicus
curiae, submitted a brief.
Vickery, for MassLandlords, Inc., amicus curiae, submitted a
Present: 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 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
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
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.
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 towards the May rent. The landlord claimed that this
left an outstanding balance of $612 for the May rent.
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
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 code's "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.
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, G. L. c. 186, § 15B. The answer
identified a number of specific defects at 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
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
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 the tenants' motion on the ground that there were
material issues of disputed facts.
October 24, 2018, because a trial date had not yet been
scheduled, the landlord filed a one-page motion requesting
that the court "tender to the [landlord] the rental
payments now in [the tenants'] attorney's IOLTA
account and [order the tenants] to pay reasonable use and
occupancy each month while this case awaits trial." The
motion recited the procedural history of the case and
asserted that the landlord "has not been paid any rent
for the months of June, August, September or October 2018,
and continues to pay his monthly mortgage from his
savings." The tenants filed an opposition to the motion
for use and occupancy payments asserting, as is relevant
here, that the landlord did not meet the standards for
October 31, 2018, a third judge of the Housing Court held a
hearing on the landlord's motion. The judge ordered,
"Commencing November 1, 2018, the [tenants] shall pay
use and occupancy of $2, 150.00 per month by the [first] --
no later than the [fifth] -- day of each month through the
[landlord's] counsel." The judge further
ordered, "This matter shall be scheduled for a pretrial
conference on the next available date and jury trial."
The order did not address the landlord's request that the
judge order payment to the landlord of the use and occupancy
amounts for August, September, and October that were being
held in the tenants' attorney's IOLTA account.
November 30, 2018, the tenants filed a petition for
interlocutory appeal from the judge's order pursuant to
G. L. c. 231, § 118. We transferred the appeal to this
court on our own motion.