2017 Mass. App. Div. 1

November 18, 2016 - January 5, 2017

Appellate Division Northern District

Court Below: District Court, Cambridge Division

Present: Coven, P.J., Crane & Nestor, JJ.

Caitlin P. Milone and Jeffrey C. Turk for the plaintiff.

Susan Hegel for the defendant.

NESTOR, J. This is a residential summary process action brought by Acorn Holdings, LLC ("Acorn") against its tenant Alphonzo Stein ("Stein") for an alleged violation of the lease between the parties. Acorn initially claimed that Stein was in breach of the lease for noise and for various cleanliness issues. Stein filed an answer, counterclaim, and a jury trial demand.

On March 9, 2016, the parties settled the summary process action with an agreement for judgment ("agreement"). The parties agreed that judgment would enter for Acorn for possession of Stein's apartment, but that execution would not issue as long as the tenant complied with the conduct set out in paragraph 3 of the agreement for the time period between March 9, 2016 and December 1, 2016. If Stein complied, then Acorn's judgment for possession would be vacated, the action dismissed, and Stein's tenancy under the lease would be reinstated as of December 1, 2016. If Stein did not comply, however, then Acorn would be entitled to present a motion for issuance of execution.

The conduct in paragraph 3 essentially required that Stein had to maintain the apartment in reasonably clean and sanitary conditions, and allow Acorn to inspect the apartment at reasonable times. Stein was also not to engage in unreasonable disturbances and was forbidden from smoking in the apartment. It provides:

"3. From the date of filing this Agreement with the Court through December 1, 2016:

"a. The Defendant shall maintain the premises in a reasonably clean and sanitary condition, free from excessive clutter that renders the premises unsafe.

"b. The Defendant shall permit the Plaintiff to inspect the premises once every two weeks in March and April 2016 and once per month in May November 2016. The Plaintiff shall provide at least 48 hours' written notice of the date and time of all such inspections to both the Defendant and his case manager Maria Melo. ... All inspections shall be between 9:00 AM and 5:00 PM during weekdays. If the Defendant notifies the Plaintiff that he is unable to be present at the inspection (e.g. due to an emergency situation, scheduling conflict, visiting family out of state) the parties shall promptly re-schedule the inspection for a mutually convenient time. Defendant shall not interfere with or prevent these inspections. In the event of a violation of

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the terms of this Agreement, Plaintiff may schedule a re-inspection upon 48 hours' notice, as provided below. The Plaintiff may take a reasonable number of pictures at each inspection.

"c. The Defendant and his guests shall not smoke in the premises, the building known as 7 Cameron Avenue ("the Building"), or the Plaintiff's grounds surrounding the Building, but the Plaintiff acknowledges that the Defendant and his guests are permitted to smoke on the public sidewalks outside the Building and the park area on the corner of Mass. Avenue and Cameron Avenue that is near the Building, that the Defendant may have unlit cigarettes in the premises, and that the Defendant's clothes and other belongings in the premises and on his person may have an odor of smoke, all without violating this Agreement.

"d. The Defendant shall not engage in, or permit any of his guests to engage in, any unreasonable disturbances in the Building or interferences with any other resident's right to quiet enjoyment of their homes in the Building."

On April 7, 2016, Acorn filed a motion to issue execution alleging as the only violation that Stein had failed to comply with the no-smoking provision of the agreement. At the April 21, 2016 hearing, Acorn's property manager, David DeLisle ("DeLisle"), testified that he inspected Stein's unit on March 21, 2016. During that inspection, he noted that smoke detectors had been removed from the ceiling. DeLisle arranged to return to the apartment on March 24 to reattach the smoke detectors. During that return visit to the apartment, DeLisle observed cigarette burns on the carpet that he testified were not there during the initial inspection. DeLisle concluded that Stein had smoked in the apartment sometime between March 21 and March 24, 2016. Stein testified that he had not smoked in the apartment after the agreement was reached on March 9. Two individuals who were employees of Stanley Steemer carpet cleaning testified that they observed the burn marks while cleaning the carpet on March 3, 2016. An additional witness testified that he moved furniture in the unit on November 19, 2015, and that he observed a large area of burn marks on the carpet. Thus, there was significant conflicting testimony about when the burn marks in the carpet had occurred. The timing of those burn marks was important to DeLisle in drawing a conclusion that Stein had smoked in the unit subsequent to the agreement being in effect.

Stein testified that in response to a 2014 e-mail about battery replacement, he unlatched the smoke detectors. The parties agreed that the smoke detectors were not attached during the inspection by DeLisle on March 21, 2016.

At the close of the hearing, the judge made oral findings that the smoke detectors were in place prior to the agreement of March 9, 2016. He further found that the tenant disabled the smoke detectors at some point after the agreement was in place. He found that removal of the smoke detectors was a violation of a "substantial condition" of the agreement. The judge then stated that he would take the matter under advisement to determine what relief should be granted.

The judge subsequently issued a written decision finding that Stein "removed the detectors from the ceiling and disabled the smoke detectors," which was a "material term of the Agreement" Indicating that this was "a substantial violation of a material

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term of the Agreement," the judge ordered that execution for possession issue forthwith. Stein filed a motion for reconsideration on the basis that the agreement was silent on the issue of smoke detectors and, therefore, any disabling of the detectors was not, in fact, a violation of the agreement. That motion was heard and denied.

General Laws c. 239, ยง10, par. 2 sets forth the procedure the court must follow in deciding whether to issue execution for breach of an agreement for judgment in a residential summary process action. The statute reads, in part:

"In any action to recover possession of premises occupied for dwelling purposes brought pursuant to this chapter ... where there is an agreement for judgment that grants the tenant a right to reinstate the tenancy, no execution shall issue prior to ... such reinstatement period unless the plaintiff shall first bring a motion for the issuance of the execution and the court after a hearing shall determine that the tenant or occupant is in substantial violation of a material term ... of the agreement for judgment."

The landlord is required to file a motion to issue an execution for possession, and the court must decide whether there has been a substantial violation of the material terms of the agreement for judgment. Boston Hous. Auth. v. Cassia, 428 Mass. 112, 113 (1998).

The written decision by the judge makes clear that the violation he found was for the disabling of the smoke detectors. Neither his oral findings at the close of the hearing nor his written decision makes any findings on the issue of whether Stein smoked in the apartment subsequent to the signing of the agreement. In fact, his written decision explicitly states that the violation he found was for disabling the smoke detectors.

In the instant case, there is simply nothing in the agreement that addresses smoke detectors. Therefore, any disabling of the smoke detectors by Stein cannot be a violation of the agreement resulting in an execution issuing.

The order allowing the motion to issue execution is vacated.