KATHERINE F. SIMMONS, Plaintiff v. DONALD FISHER and JESSICA FISHER, Defendants

This matter was before the court on January 7, 2020 with respect to a Motion for Summary Judgment (the "SJ Motion") filed by the defendants, Donald Fisher and Jessica Fisher (the "Defendants"). As grounds for their SJ Motion, Defendants contend that the notice to quit relied upon by plaintiff Katherine F. Simmons ("Plaintiff") in terminating their tenancy is defective, and that they are entitled to summary judgment on Plaintiff's claim for possession as a matter of law. Plaintiff opposes the entry of summary judgment in Defendants' favor, arguing that her notice to quit is legally sufficient. The parties each submitted legal memoranda and supporting documents.

This is a no-fault summary process (eviction) action in which the Plaintiff is seeking possession of the premises located at 259 West Street, 1st floor, in North Attleboro, Massachusetts (the "Premises") following the expiration of a notice to terminate tenancy at will. The Defendants allege that the Plaintiff's notice to quit is legally insufficient because it did not terminate their tenancy on a rent day as required by G.L. c. 186, §12.

STANDARD FOR SUMMARY JUDGMENT

The standard of review on summary judgment "is whether, viewing the evidence in the light most favorable to the non-moving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991). See Mass.R.Civ.P. 56(c). The moving party must demonstrate with admissible documents, based upon the pleadings, depositions, answers to interrogatories, admissions, documents, and affidavits, that there are no genuine issues as to any material facts, and that the moving party is entitled to a judgment as a matter of law. Community National Bank v. Dawes, 369 Mass. 550 , 553-56 (1976). When the court considers the materials accompanying a motion for summary judgment, the inferences to be drawn from the underlying facts in such materials must be viewed in the light most favorable to the party opposing the motion. Attorney General v. Bailey, 386 Mass. 367 , 371 (1982); see Simplex Techs, Inc. v. Liberty Mut. Ins. Co., 429 Mass. 196 , 197 (1999). Once the moving party meets its initial burden of proof, the burden shifts to the non-moving party "to show with admissible evidence the existence of a dispute as to material facts." Godbout v. Cousens, 396 Mass. 254 , 261 (1985).

UNDISPUTED MATERIAL FACTS

The undisputed facts set forth in the summary judgment record establish that Defendants are tenants at will pursuant to a written agreement and that their rent is due on the first day of each month. On September 4, 2019, Defendants received a "Notice to Quit Terminating Tenancy at Will" (the "NTQ"). (Exhibit 5 attached to Defendants' Memorandum of Law in Support of their SJ Motion). The NTQ states in relevant part as follows:

"You are hereby notified to quit and deliver up the premises at the end of the rental period which begins next after the receipt of this notice. If you should fail to vacate the premises by the expiration of October 31, 2019, we may seek to enforce termination only by bringing a judicial eviction, at which time you may present a defense."

DISCUSSION AND RULING

A legally sufficient notice to quit is a condition precedent to a summary process action. Cambridge St. Realty, LLC v. Stewart, 481 Mass. 121 , 122 (2018). It is settled law that to be legally effective a notice to quit must be "timely, definite and unequivocal." Maguire v. Haddad, 325 Mass. 590 , 594 (1950). To be timely, a notice to terminate tenancy at will must give the tenant at least 30 days or one (1) full rental period to vacate, whichever is longer. G.L. c. 186, §12. A notice to terminate a tenancy at will must also terminate the tenancy on a rent day. Connors v. Wick, 317 Mass. 628 (1945). Finally, a notice to quit must fix a "definite" date of termination. The notice may accomplish this by specifying an exact date on which the tenancy is to expire, that being a rent day, or it may generally state that the tenant must vacate the premises at the end of the month of the tenancy beginning after receipt of the notice. See U-Dryvit Auto Rental Co. v. Shaw, 319 Mass. 684 (1946). As stated in U–Dryvit, "[t]he date for termination need not be stated as a certain day. It is enough if it is designated in general terms and may be reasonably understood by the landlord and tenant as fixing a day certain." U-Dryvit Auto Rental Co. v. Shaw, 319 Mass. at 685. A notice to quit fixing a day certain "at the end of the next month of your tenancy beginning after this notice" is legally sufficient. Id.

Here, Defendants argue that the NTQ failed to terminate their tenancy on a rent day, and absent a legally sufficient notice to quit the Plaintiff cannot satisfy an element of its prima facie case for possession. It is undisputed that the NTQ was received by Defendants on September 3, 2019, that the rent was payable in monthly intervals due on the first day of each month, and that the first rent day after the next full rental period was November 1, 2019. To be effective in this case, the NTQ must terminate Defendants' tenancy as of November 1, 2019.

There is no question that had the NTQ stopped after the first sentence stating "[y]ou are hereby notified to quit and deliver up the premises at the end of the rental period which begins next after the receipt of this notice" (the "1st Sentence") the NTQ would have been legally sufficient. See U-Dryvit Auto Rental Co. v. Shaw, 319 Mass. at 685. At issue is whether the next sentence in the notice to quit requiring that Defendants vacate the Premises "at the expiration of October 31, 2019" (the "2nd Sentence") rendered the NTQ invalid by fixing the date for termination as October 31, 2019, that not being a rent day. The Court rules that the addition of the 2nd Sentence does not invalidate the NTQ or otherwise fix the termination date as October 31, 2019.

Here, the 1st and 2nd Sentences of the NTQ, when read together, could be reasonably understood by the landlord and tenant as fixing November 1, 2019 as the termination date. The 1st Sentence is legally sufficient to terminate the tenancy as of November 1, 2019. The 2nd Sentence is entirely consistent with the 1st Sentence in that it states that should the tenants "fail to vacate the premises by the expiration of October 31, 2019" (emphasis added) the landlord will enforce the termination of the tenancy (as of the date certain fixed in the 1st Sentence) by bringing a judicial eviction. Had the 2nd Sentence stated that the tenancy terminated on or before October 31, 2019, that would have created a fatal inconsistency as to the termination date; however, the 2nd Sentence fixed the termination date as the expiration of October 31, 2019. The word "expiration" means upon the end or cessation of October 31, which necessarily is November 1, the rent day.

CONCLUSION

After reviewing the evidence set forth in the summary judgment record, the Court finds there are no genuine issues as to any material facts and concludes as a matter of law that the NTQ is legally sufficient. For this reason, Defendant's SJ Motion is DENIED as to Plaintiff's claim for possession of the Premises.

The Clerk is directed to schedule this case for a jury trial on April 22, 2020 and April 23, 2020 at 9:00 a.m. in Taunton and to send written notice to the parties of a Rule 16 pretrial conference to be held on April 7, 2020 at 2:00 p.m. At least five (5) days prior to the pretrial conference, the parties shall file and serve their pretrial memoranda conforming to the requirements of Paragraph 2 of the notice of pretrial conference; and unless the parties have filed a written waiver of the jury prior to such pretrial conference, their pretrial memoranda shall be filed together with their proposed jury instructions and special verdict form, an agreed statement of the case for the jury and any motions in limine or other pretrial motions, which motions shall be heard at the time of the pretrial conference. In addition any special voir dire inquires, updated witness lists and all agreed upon pre-marked exhibits shall also be filed with the Court at said time. A failure to comply with this order and/or the written notice of pretrial conference order may result in sanctions including, but not limited to, the entry of default or dismissal and/or the striking of the jury demand.

SO ORDERED.