February 13, 2020

Housing Court, Southeast Division

Donna Salvidio, Associate Justice


This matter was before the court on February 7, 2020 with respect to a prejudgment Motion for Payment of Use and Occupancy (the "Motion") filed by the plaintiff, Nicholas Melo Jorge ("Plaintiff" or "Landlord"). In his Motion, Plaintiff requests that defendant Rick Clements ("Defendant" or "Tenant"), be ordered to pay monthly use and occupancy into escrow until final judgment is entered in this case. A use and occupancy hearing was held and argued by counsel, who appeared for each of the parties.

Whether an order for interim use and occupancy payments during the pendency of a summary process action is appropriate and the amount of any such payments is left to the discretion of the trial judge to determine on a case-by-case basis after balancing the equities. Davis v. Comerford, 483 Mass. 164 , 179 (2019). Use and occupancy payments may not exceed the fair value of the rental premises, and certain defenses and counterclaims asserted by a tenant may offset or eliminate a tenant's liability for ongoing use and occupancy payments. Id. at 181. When considering a prejudgment order for use and occupancy payments, the Court must consider the following factors, to the extent relevant to the particular case:

1. The time delay expected before final resolution;

2. The amount of rent alleged to be due;

3. The number of months the landlord has not received even a partial rental payment;

4. The amount of the landlord's monthly obligations for the premises;

5. Whether the landlord faces a substantial threat of foreclosure or other pressing financial obligations;

6. A tenant's likelihood of success on claims or defenses that may justify rent withholding or rent abatement;

7. Whether the tenant had to pay out of pocket for repairs or maintenance to address habitability issues at the premises;

8. The requirements set out in G.L. c. 239, §8A, such as the landlord's knowledge of the conditions prior to the withholding of rent and whether the tenant caused the complained of conditions;

9. Whether the housing code or other violations alleged are minor or substantial;

10. Whether documentation such as inspection reports or photographs support a preliminary determination regarding such conditions; and

11. The financial positions of the parties, including whether the tenant has been allowed to proceed in forma pauperis.

Davis v. Comerford, 483 Mass. at 180-182.

Here, it is undisputed that Tenant occupies the subject premises pursuant to a Section 8 lease. The contract rent is $1,150.00 per month of which Tenant's share is currently $377.00. [Note 1] Tenant has not paid anything in five (5) months, resulting in an arrearage of $1,885.00 through the month of February 2020. Tenant timely filed a jury demand, which will delay the final resolution of this matter and, absent an order requiring Tenant to pay interim use and occupancy, will expose Landlord to a prolonged period of litigation with reduced rental income and no reasonable likelihood of collecting on any judgment obtained against Tenant. As this is a cause eviction, Tenant is precluded from raising conditions-related defenses or counterclaims pursuant to G.L. c. 239. §8A.

After balancing the above factors applicable to the instant case, the Court finds in the absence of an interim order requiring Tenant pay use and occupancy, Landlord will be exposed to a prolonged period of litigation without rental income, and the likelihood of Landlord recovering the fair rental value of the premises after trial is unlikely given Tenant's limited financial resources. In addition, Tenant has no G.L. c. 239, §8A claims or defenses that could result in a defense to possession or an offset from an award of damages in favor of Landlord. Finally, Landlord is requesting that use and occupancy be ordered prospectively only; meaning that even if Tenant's claim concerning the improper calculation of his rent share has merit, he will not be required to pay the disputed amount for past months during the pendency of the trial. For these reasons, the Plaintiff's Motion is ALLOWED.

It is ORDERED that Defendant pay use and occupancy at the rate of $377.00 per month, which the court preliminarily finds to be the Tenant's share of the contract rent. Use and occupancy shall be paid into escrow in order to maintain the status quo pending final adjudication. Use and occupancy for the month of February shall be paid on or before February 28, 2020 at 3:00 p.m. Use and occupancy for the month of March shall be paid on or before March 15, 2020, and continuing on the fifteenth (15th) day of each month thereafter until final judgment is entered. If the fifteenth (15th) day of the month falls on Saturday, Sunday or holiday, payment shall be due on the next business day.

It is further ORDERED that each such use and occupancy payment shall be made to Plaintiff's attorney, John A. Walsh, at 156 Eighth Street in New Bedford, Massachusetts 02740 in the form of a certified or bank check or money order made payable to Attorney Walsh as attorney for Plaintiff. Attorney Walsh shall hold all such use and occupancy payments in escrow, shall not release such funds to Plaintiff without leave of this Court, and shall account to the Court upon request. If Defendant fails to make any one (1) of the required payments for the use and occupancy of the premises as set forth in this Order, then upon motion with written notice to Defendant the Plaintiff may move for sanctions, which sanctions may include the striking of Defendant's jury demand.



[Note 1] Tenant disputes the calculation of his share of the contract rent. There was evidence presented at the hearing that Neighborworks determined Tenant's rent share as $377.00 on July 12, 2019. The evidence showed Tenant is the only occupant of the premises, which consists of a three (3) bedroom unit.