In Davis v. Comerford, 483 Mass. 164 (2019), the Massachusetts Supreme Judicial Court considered whether a judge has authority to issue orders for interim use and occupancy payments during the pendency of a summary process eviction action. The Court held that, at least in the context of a residential eviction proceeding, following a motion by the landlord and a hearing before the court, a court has both statutory and equitable authority to order a tenant at sufferance to make interim use and occupancy payments to a landlord during the pendency of an eviction action, subject to the consideration of various factors.

In 2014, the tenant in Davis v. Comerford began leasing a single-family home in Brockton from the landlord. The lease specified an “at will” tenancy that could be terminated by either party upon 30 days’ notice and the landlord, after deciding to sell the home, provided a notice to quit to tenant in June 2017. No further action was taken at that time. The landlord sent an additional notice to quit on April 14, 2018 and the tenant countered with a demand for security deposit and interests, requested that the Brockton health inspector conduct an inspection of the home, and sent the landlord a G. L. c. 93A demand letter. On June 4, 2018 the landlord served the tenant with a summary process summons and complaint for failure to pay rent. In response, the tenant raised affirmative defenses and counterclaims alleging breach of the warranty of habitability and the covenant of quiet enjoyment, retaliatory eviction, and violation of the consumer protection and security deposit statutes.

Relying on the statutory framework and existing case law, the Court concluded that allowing interim use and occupancy payments that reflect the “fair value of the use and occupation” of the property was consistent with the statutory purpose of protecting the rights of both landlord and tenant during an ongoing summary process eviction proceeding. While the tenant maintained that certain conditions of the home struck at its habitability and questioned certain actions of the landlord, the Court also considered the obligations of the landlord. In the instant case, the Court did not make a judgment on the appropriate amount of use and occupancy payments, but it did include a discussion of the factors that would go into making such a judgment. The Court determined that, at a hearing, a court should consider, from a landlord’s perspective, factors such as: (i) the time delay inherent in summary process proceedings; (ii) the amount of rent due; (iii) the number of months landlord has gone without rent; (iv) the landlord’s monthly obligations for the premises; and (v) whether the landlord is facing a substantial threat of foreclosure. For tenants, the Court determined that a court should consider the tenant’s defenses or counterclaims, including but not limited to (a) breaches of the warranty of habitability or the covenant of quiet enjoyment; (b) breaches of the security deposit or consumer protection statutes; (c) retaliatory eviction; (d) discrimination; (e) whether the tenant engaged in self-help to rectify any habitability issues; and (f) intentional infliction of emotional distress, and the likelihood of success of those defenses and counterclaims. A court should also consider the financial positions of the parties to avoid creating a monetary barrier for tenants with limited means, but without derogating from any financial hardship a landlord may be facing. Should any of the raised defenses and/or counterclaims be compelling to the court, the amount due to the landlord may be reduced or eliminated. Additionally, the Court noted that a court ruling on use and occupancy payments should identify the most relevant factors and explain (orally or in the written decision) how those factors were balanced in making such an order.

If a judge decides to order interim use and occupancy payments, he or she also has discretion to determine whether such payments should be paid into an escrow account or directly to the landlord (or a combination of both). The Court noted that requiring a tenant to pay into an escrow account creates an incentive for the landlord to make repairs, while providing comfort to the landlord that it will receive what it is entitled upon judgment in the summary process action. The Court further noted that direct payments would be appropriate in situations where maintaining the physical condition of the premises is at issue, where the landlord presents evidence that the use and occupancy payments are necessary for mortgage payments or where the landlord otherwise presents evidence of a pressing need.

Davis v. Comerford confirms that a court has the authority to order a tenant to pay use and occupancy payments while an eviction proceeding is ongoing. The amount due shall be based upon the “fair value of the use and occupation” of the premises, but is subject to offsets relative to the habitability of the premises and/or breaches of the landlord’s responsibilities.