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SJC Confirms Landlords May Obtain Occupancy Payments During Eviction Proceedings and Outlines the Critical Factors

By Bernkopf Goodman on 09.16.2019
Posted In: Client Alerts

The Massachusetts Supreme Judicial Court (SJC) handed down a decision Sept. 16 confirming that judges hearing summary process eviction cases have the legal and equitable authority to require tenants to make interim use and occupancy payments to landlords while the cases are pending. The SJC’s decision in Davis v. Comerford also gives clear guidance to landlords, lawyers, and, most importantly, the courts, on the process surrounding filing a motion to obtain such use and occupancy payments, what factors should be considered when determining whether such payments should be required and in what amount, and where such proceeds should be held.

Upon filing such a motion, a tenant must have notice and an opportunity to be heard. In determining the amount of the use and occupancy payments, judges look to the fair market rental value of the premises and must evaluate any counterclaims and defenses from the tenant, such as a breach of the warranty of habitability. However, the court should evaluate whether such counterclaims, such as alleged housing code violations, are de minimis or substantial. In the decision, the SJC also cautions judges to keep in mind financial hardships of both parties.  For example, landlords have the opportunity to present “minimum findings” demonstrating that the payments are necessary due to a mortgage or other “pressing financial obligations,” the SJC says in its ruling. Landlords can also bring forth other factors, including the length of the eviction case, how much rent has been paid to date, and the amount of debt owed for the premises.

The decision also gives judges’ options on where and when to disperse approved use and occupancy payments, whether in a court-managed escrow account, an attorney’s IOLTA account, or, in some cases, given directly to the landlord.

For more on the factors and the impact of this decision, contact Jason Manekas at jmanekas@bg-llp.com or 617-790-3308.