JOSEPH A. TORRISI, CARMEN A. TORRISI, ALFRED J. TORRISI and JOSEPH A. MIRAGLIOTTA, Trustees of Union Market Realty Trust vs. COMMONWEALTH OF MASSACHUSETTS REGISTRY OF MOTOR VEHICLES.

Plaintiffs are the lessors of the premises at 207-211 Market Street, Lawrence. Their complaint for a declaratory judgment pursuant to G. L. c. 231A filed August 30, 1979 "demands judgment" that the Court determine 1) whether or not either plaintiffs or defendant may terminate the lease by giving the other ninety days notice in writing thereof; and 2) whether or not plaintiffs may enter and terminate the lease by reason of a 90 day notice to defendant dated May 1, 1979.

On November 8, 1979 the plaintiffs filed a motion to amend their complaint which the Court now allows in which the plaintiffs "demand judgment" that 3) the defendant has breached its lease by failing to pay rent when due for May, June and July, of 1979; that 4) the Court "interpret and construe whether the plaintiff is etitled to possession of the leased premises by commencing summary process and 5) "that the Court interpret and construe whether plaintiff is entitled to possession of the leased premises due to the defendant's failure to pay its rent when due." The Court is at a loss to know just what is meant by the above paragraphs 4 and 5 but assumes that what is sought is an answer to the questions of whether or not the plaintiffs are entitled to proceed with a summary process action in the Lawrence District Court after serving a notice on defendant to quit for non­payment of July 1979 rent.

Defendant answered denying that the plaintiffs can terminate the lease by the ninety day notice sent to defendant. By way of counterclaim it prays for a declaratory judgment "1) that the plaintiffs have the duty and obligation to prepare and send monthly invoices to the Commonwealth for payment of its monthly rent and have failed to do so; and 2) that the District Court does not have jurisdiction to evict or eject the Commonwealth of Massachusetts, the only court with such jurisdiction being the Superior Court pursuant to G. L. c. 212, §3 and G. L. c. 258, §3."

A hearing was held October 24, 1979 at which six witnesses testified. Eleven exhibits were entered into evidence and are incorporated herein for the purpose of any appeal.

Upon all of the evidence the Court finds the facts to be as follows:

1. Plaintiffs as trustees of Union Market Realty Trust are the owners of the premises located at 207-211 Market Street, Lawrence, leased to defendant on November 1, 1976 for a five year term and used as a Registry of Motor Vehicles office. (Exhibit 1)

2. Paragraph two of page two of the said lease provides as follows:

PROVIDED the Lessee buys or builds a building for its own use or provided there is built by private ownership a building for the use of the Lessee and said building is leased to the Commonwealth for a term at least equivalent to the term then remaining in this lease, then in either case the Lessee may terminate this lease by giving the Lessor ninety days notice in writing of its intention to terminate this lease. (Exhibit 1).

3. On May 1, 1979 plaintiffs sent to the defendant a ninety day notice to vacate the premises (Exhibit 5) pursuant to the above mentioned lease provision.

4. On August 1, 1979 the plaintiffs commenced a summary process action in the Lawrence District Court, being Civil Action 1783/79 against the defendant Commonwealth of Massachusetts based on the above mentioned notice to quit. The Commonwealth filed a motion to dismiss which was heard on August 9, 1979 and continued for briefs to be filed on August 30, 1979. Evidently plaintiffs elected not to proceed further with this action, as it was marked "Off the List" on August 30, 1979.

5. Instead of proceeding with the above case, plaintiffs brought this complaint for a declaratory judgment in the Land Court on August 30, 1979.

6. In the meantime on July 24, 1979 plaintiffs sent defendant a second notice to quit this time for failure to pay rent for the months of May, June and July 1979 (Exhibit 6). On July 31, 1979 Registrar Richard E. McLaughlin sent a letter to plaintiffs' attorney (Ex. 9) explaining that Registry records showed the May rent to have been paid "the first week in June," and that no invoice had been received for processing and payment of the June rent and that the July rent was not then due. The May rent was received during the first week in June and the June and July rents were on the August warrant and presumably paid shortly thereafter.

7. On September 12, 1979 plaintiffs brought a second summary process action in the Lawrence District Court (being No. 2123/79) against defendant this time for the non-payment of the July rent.

8. On September 18, 1979 upon defendants "Motion for Protective Order, Restraining Order and Permanent Injunction" the Land Court issued a temporary restraining order prohibiting plaintiffs from prosecuting any further actions against the Commonwealth relating to the leased premises.

9. Thereafter on September 28, 1979 a permanent injunction was issued ordering that the restraining order of September 18, 1979 (paragraph 8) be continued in full force and effect until further order of the Court.

10. The lease provides that rent for the premises is "one thousand six hundred fifty dollars, $1,650.00, each month for the month previous...the first such payment to be made on the first day of the month following date of occupancy.." (Exhibit 1) In other words the rent is payable monthly in arrears on the first of each month.

11. The Registry paid its rent according to procedures promulgated by the Comptroller of the Commonwealth [Note 1] and set forth on a book of instructions (Exhibit 11) distributed to all Commonwealth agencies but not to the plaintiffs herein. This manual, at page forty-seven provides that "standard invoice forms should be supplied to vendors," and "[t]he standard invoice [Note 2] form will be prepared by the vendor...[t]he certification that services were rendered must be signed by the vendor. The vendor will retain the no. 4 copy for his files and forward all other copies to the spending agency." (Ex. 11) These instructions were not made a part of the lease (Exhibit 1) although Union Market Realty Trust adhered to them in submitting an invoice to the Registry each month through the eight years of its tenancy.

12. A substantial amount of time was required for the processing of the invoices submitted to the Registry of Motor Vehicles by the plaintiffs. Though the Registry's rent was not due until the first day of the following month of occupancy, Union Market Realty Trust typically submitted a rent invoice sometime during the month for which rent was claimed. The Registry then certified the invoice and within a few days forwarded it to the Commonwealth's accounting office. That office processed it and forwarded it to the office of the Comptroller. The Comptroller in turn processed it and placed it on a warrant, compiled each Tuesday night, to go before the Governor's Council session the following day, Wednesday. A copy of the warrant was sent to the State Treasurer's office for the preparation of checks. If and when the Governor's Council at its session on a given Wednesday approved the warrant, the State Treasurer sent the checks back to the Comptroller on the Friday following. If by that day the due date for the rent had occurred the check for this rent payment was sent to plaintiffs. If the due date for the rent had not occurred the check was held until it did occur and then mailed. It is fair to say that the rent payment was never made on the first of the month throughout the term of the original lease or the current lease, but was always made thereafter.

13. The evidence showed that usually a period of ten days elapsed from the time the Comptroller placed the invoices on the warrant to the mailing of the rent check. The rent invoices for January, 1979 through August 1979 were placed on the warrant as follows:

January's rent invoice placed on the warrant February 23, 1979 February's rent invoice placed on the warrant February 23, 1979 March's rent invoice placed on the warrant March 28, 1979 April's rent invoice placed on the warrant April 26, 1979 May's rent invoice placed on the warrant May 16, 1979 June's rent invoice placed on the warrant "in August" July's rent invoice placed on the warrant August 15, 1979 August's rent invoice placed on the warrant August 29, 1979

14. As appears above the June 1979 rent voucher was not received at the Registry of Motor Vehicles office until August 1979. On the invoice was a notation that it was a copy of the original and that the first copy was lost in the mail.

15. Inexplicably, the November and December 1978 rent was paid by one check dated January 5, 1979 and the January and February 1979 rent was paid by one check issued March 2, 1979.

16. Joseph Torrisi the father of the other trustees of the Union Market Realty Trust, handled the submission of invoices to the Registry until his son Alfred J. Torrisi, Trustee, assumed this task in the Spring of 1979. By a letter dated September 14, 1979 (Exhibit 7) Alfred J. Torrisi informed the Registry that Union Market Realty would no longer submit monthly invoices but the practice was in fact continued.

I. Does The Right To Terminate The Lease Expressly Granted To Defendant In Paragraph Two Of Page Two Of The Lease Also Extend To Plaintiff?

The plaintiffs claim that if the defendant has the right to terminate the lease under paragraph 2, page 2 (see paragraph 3 herein) they likewise have such a right. There is no reason why the parties may not agree between themselves as to the time and manner in which a tenancy may be terminated. See Carlisle v. Weiscopf 237 Mass. 183 , 184 (1921). Here, the parties agreed that if "the lessee buys or builds a building for its own use, or provided there is built by private ownership a building for the use of the lessee" and it is leased to the Commonwealth upon certain terms, the lessee might terminate the lease. This language of paragraph 2, page 2 is clear and unambiguous. The defendant lessee is granted the right to terminate the lease under certain conditions not found here. The plaintiffs lessors are granted no such right nor need they be. The lease does not call for mutuality between the lessor and lessee. Had the lessor - the plaintiffs here - wanted this they should have incorporated such provisions into the lease.

The Court finds and rules that while, under the provisions of paragraph two page two of the lease, the Lessee may terminate the lease upon certain conditions, this does not give any termination right to the lessor.

II. May The Plaintiffs Terminate The Lease On An Action Based Upon The 90 Day Notice To Quit Sent May 1, 1979?

Inasmuch as the Court has found and rules that the plaintiffs may not terminate the lease under the provisions of the clause found on page two, paragraph two, this question is moot.

III. Have The Defendants Breached The Lease By Failing To Pay Rent On Time For The Months Of May, June, and July, 1979?

Each of the rent payments for May, June and July, 1979 was made after the first of the month following the date of occupancy. Except as will be pointed out hereafter it would thusseem that in each instance, after the due date had passed, plaintiffs would be entitled to tender to defendant a fourteen day written notice to quit, G. L. c. 186, §11. Such a notice was sent when the July rent was not paid and defendant did not pay the July rent within the period allowed by G. L. c. 186, §11. Accordingly, it appears that plaintiffs would be entitled to possession of the premises pursuant to a proper summary process complaint, but not the summary process complaint of September 12, 1979 brought as it was in the district court which lacks jurisdiction. (See IV of this decision)

It should be pointed out that the lease (Exhibit 1) was dated November 1, 1976 for a period to run for five years. This was not the first lease but a second lease for a second five year period. Thus the procedure for the billing and paying of rent had been in effect for nearly eight years in the summer of 1979. This billing procedure is as set forth in paragraph 12 herein.

There is no question but that under the terms of the lease plaintiffs are not bound to prepare and send monthly invoices to the defendant in order to be paid rent due them. There is also no question but that the plaintiffs had submitted invoices as set forth in paragraph 12 for almost eight years. Having acquiesced in this manner of rent payment, it ill behooves the plaintiffs in the summer of 1979 to suddenly refer to the technical terms of its lease and hold the defendant to strict adherence thereto. The least they could have done is to give defendant some notice of their seeking a change of procedure so that the defendant could comply. To hold that the defendant is now to have the lease terminated for non-payment of rent after the plaintiffs and defendant had followed a long continued practice would be wrong. The Court finds and rules that the plaintiffs by their conduct have waived their rights to collect the rent in the technical manner set forth in the lease. See Weinreb v. Clarke, 361 Mass. 846 (1972)

The Court would suggest that it might well be wise for the Commonwealth in its leasing practices to make sure that its leases conform to its method of doing business and if the lessors do not agree to go elsewhere for its rental properties.

IV. May The Plaintiffs Bring A Summary Process Action in the District Court To Terminate This Lease For Non-Payment Of Rent?

Inasmuch as the Court has found and rules that there is no ground for an action for non-payment of rent, this question is also moot. The Court, though, believes that perhaps an answer is called for.

The Registry of Motor Vehicles is an agency of the Commonwealth against whom the action was brought.

G. L. c. 212, §3 provides that "the [superior] court shall have exclusive original jurisdiction of civil actions for the foreclosure of mortgages and of real and mixed actions, except those of which the land court or district courts have jurisdiction, of complaints for flowing land, and of claims against the Commonwealth." (emphasis added)

In addition, G. L. c. 258, §3 reads "...The superior court, except as otherwise expressly provided, shall have jurisdiction of all claims against the Commonwealth."

G. L. c. 239, §2 allows persons entitled to summary process to bring such action in the superior court as well as in the district court. G. L. c. 239, §2 should not be considered in isolation but in relation to the previously cited statutes. Pereira v. New England LNG Co., Inc. 364 Mass. 109 , 115 (1973). From a reading of the statutes together it is plain that G. L. c. 239, §2 confers no jurisdiction of a summary process complaint against the Commonwealth upon the district court and that jurisdiction of such an action remains exclusively in the superior court.

To sum up, the Court finds and rules that 1) under the provisions of paragraph two, page two of the lease between the Trustees of Union Market Realty Trust and the Registry of Motor Vehicles the Trustees have no right to terminate their lease; 2) that the trustees have no right to terminate their lease by reason of their ninety day notice to defendant, dated May 1, 1979; and that 3) the trustees had no right to terminate the lease for non-payment of rent in accordance with their second notice to vacate, and that 4) the District Court does not have jurisdiction to hear a summary process complaint brought against an agency of the Commonwealth of Massachusetts.

Judgment accordingly.