2020 Mass. App. Div. 104

December 20, 2019 - June 25, 2020

Appellate Division Southern District

Court Below: District Court, Edgartown Division

Present: Finnerty, P.J., Finigan & Cunis, JJ.

Order entered in Edgartown Division by Pino, J. [Note 1]

Theodore A. Saulnier for the plaintiff.

Kathryn Sullivan for the defendant.

FINNERTY, P.J. Cynthia Seymour ("Tenant") contends that the trial court judge abused his discretion in failing to stay the judgment or execution against her in this summary process case.

Tenant occupied a camping trailer located on the property of Brandon Fisher ("Landlord") for a period beginning in May, 2018. Tenant and Landlord were friends, and Landlord allowed Tenant to occupy rent-free the trailer, to which electricity was provided at Landlord's expense by means of an extension cord from the Landlord's dwelling. The camping trailer was heated by a small space heater and does not have water, septic services, or any cooking utilities. The arrangement was intended to be temporary, but one year later Tenant still occupied the premises. Availability of funds for the cleanup of his property, including removal of the trailer, spurred Landlord to commence summary process.

After a hearing on May 24, 2019, the court entered judgment for possession in favor of Landlord. On June 7, the court heard arguments on Tenant's request for a stay pursuant to G.L. c. 239, §§ 9 and 10. Section 9 of G.L. c. 239 authorizes a judge to grant a stay of execution for up to a year, in an action for an eviction without fault, where the occupant is handicapped or over the age of sixty. Pursuant to § 9, a person is handicapped if he or she: "(a) has a physical or mental impairment which substantially limits such person's ability to care for himself, perform manual tasks, walk, see, hear, speak, breathe, learn or work; or (b) has a physical or mental impairment which significantly limits the housing appropriate for such person or which significantly limits such person's ability to seek new housing; or (c) would be eligible for housing for handicapped persons under the provisions of chapter one hundred and twenty-one B." Under § 10 of c. 239, the court may grant a stay if the tenant "has used due and reasonable effort to secure such other premises." See Adjartey v. Central Div. of the Housing Court Dep't, 481 Mass. 830, 836 & n.10 (2019).

At the May 24, 2019 hearing, the court did not consider any discretionary relief available to him to enter such a stay. That deficiency was cured, however, by his full consideration of the issue at the June 7 hearing, after which the requested stay was denied.

At that hearing, Tenant, age sixty-one, claimed that she suffered from a knee injury as a result of a fall some nine months earlier, although it was now better. She

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also claimed that she was looking for work, but had not generated any income and could not afford to find alternative housing. She claimed to have made diligent and reasonable efforts to do so, although she also represented that she had not sought alternative housing during the preceding winter. The trial judge had the benefit of seeing Tenant in person at both hearings. The evidence fell short of establishing a handicap within the meaning of the statute. Cf. Poutahidis v. Clingan, 2001 Mass. App. Div. 217, 219 (uncontroverted evidence that tenant, who occupied apartment with son, daughter, and foster child, and who suffered from aggressive breast cancer, was undergoing extensive chemotherapy with debilitating side effects supported by medical evidence should have been granted stay). Though Tenant was over the age of sixty, the trial judge also had before him testimony that the electrical connection to the camper frequently tripped the circuit in Landlord's home and created a potential hazard, and he was able to consider the condition of the trailer as a suitable dwelling.

"[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made 'a clear error of judgment in weighing' the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008). On the record before us, we do not find an abuse of discretion.

The trial court's order denying the motion for a stay of execution is affirmed. The appeal is dismissed.

So ordered.


[Note 1] The Honorable Paul G. Pino recused himself from this appeal, and did not participate in its hearing, review, or decision.