ALLEN H. DAVIS vs. WILLIAM COMERFORD & another. [Note 1]

KAFKER, J. The question presented in this case is whether a judge has authority to issue orders for interim use and occupancy payments during the pendency of a summary process eviction action, and, if so, the circumstances under which it is appropriate to exercise that authority. We conclude that, following motion by a landlord, a court has statutory and equitable authority under G. L. c. 111, § 127F; G. L. c. 239, § 8A (§ 8A); G. L. c. 185C, § 3; and G. L. c. 218, § 19C, to order a tenant at sufferance to make interim use and occupancy payments during the pendency of an eviction action. To exercise that authority, the judge, on motion by the landlord, must hold a use and occupancy hearing where the factors and circumstances described infra are considered, in particular whether the summary process action has been prolonged and whether the tenant is entitled to withhold or abate rent payments due to habitability issues that reduce the fair value of the rental premises or has other counterclaims against the landlord that may result in rent offsets. We further conclude that payment into an escrow account maintained by the court or counsel for one of the parties typically will provide sufficient protection to a landlord, but we clarify that a judge may order payments directly to a landlord if certain additional factors are present, such as where the landlord demonstrates that use and occupancy payments are necessary for the landlord to pay a mortgage on the premises or meet other pressing financial obligations. In the instant case, we vacate the judge's order for use and occupancy payments and remand the matter for further proceedings consistent with this opinion. [Note 2]

1. Background. In December 2014, the defendants, William and Gina Comerford (tenants), signed a lease agreement to rent a single-family home in Brockton from the plaintiff, Allen H. Davis (landlord), for $1,700 per month. [Note 3] The lease specified that the tenancy would be "AT WILL" and "may be terminated by a written notice given by either party to the other before the first

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day of any rental period and shall be effective on the last day of the rental period, or thirty days after such notice has been given, whichever is longer." [Note 4] The tenants also gave the landlord two $1,700 checks for use as a security deposit and the last month's rent.

In June 2017, the landlord decided to sell the house and provided the tenants with a handwritten notice to quit stating that he was terminating their tenancy and that they would have to vacate the premises within thirty days. The tenants asked the landlord if they could remain in the house for a few more months and offered to pay a higher rent amount. The landlord agreed to let the tenants stay for a rent of $2,125, and the tenants promised to move out within three months. After discussion with the tenants, the landlord applied the last month's rent deposit towards the rent for August 2017.

Although the tenants did not move out in August 2017, the landlord took no further action until April 14, 2018, when he provided the tenants with a handwritten thirty-day notice to quit stating that he was terminating the tenancy and that they should vacate the premises by May 31, 2018. In early May 2018, the landlord applied the tenants' $1,700 security deposit towards the May rent. The landlord claimed that this left an outstanding balance of $612 for the May rent.

On May 12, 2018, the tenants' counsel sent the landlord a letter requesting all records in connection with the tenancy pursuant to G. L. c. 186, § 15B, and making a "formal demand for the security deposit and interests." The landlord did not respond to this request.

On May 17, 2018, the landlord served the tenants with both a fourteen-day notice to quit for nonpayment of $612 in May rent and a thirty-day notice to quit terminating the tenancy at will. [Note 5] That same day, the tenants asked the board of health of Brockton to conduct an inspection of the premises. After viewing the premises on June 15, the health inspector sent the landlord an inspection report stating that he was in violation of a city ordinance

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requiring a "certificate of fitness" that the premises complied with the State sanitary code and documenting several specific violations of the code's "minimum standards of fitness for human habitation." [Note 6] The landlord acknowledged receipt of the inspection report.

On May 30, 2018, the tenants' counsel sent the landlord a "[G. L. c.] 93A demand letter." The letter again requested the records concerning the tenancy and the security deposit pursuant to G. L. c. 186, § 15B. In addition to violations of G. L. c. 93A, it also alleged breaches of the warranty of habitability and covenant of quiet enjoyment, and retaliatory eviction based on the tenants' request of the health inspection. The letter claimed that "financial compensation . . . in the amount of $6,375.00 (equal to three months' rent) [was] warranted" in light of the "significant difference in price between the fair market value of the [p]remises in their defective state and the current rent therefor." This letter also enclosed a $612 check purporting to cure the fourteen-day notice to quit, which the landlord deposited.

On June 4, 2018, after the tenants declined to vacate the premises, the landlord served the tenants with a summary process summons and complaint, alleging "failure to pay rent" and itemizing unpaid rent of $612 for May and $2,125 for June. In early June, the tenants sent the landlord a check for the June rent, but, according to the landlord, the check twice was returned for insufficient funds when he attempted to cash it.

On June 15, 2018, the tenants filed an answer in which they raised affirmative defenses and counterclaims alleging breach of the warranty of habitability and the covenant of quiet enjoyment; retaliatory eviction; and violations of the consumer protection statute, G. L. c. 93A, § 2, and the security deposit statute, G. L. c. 186, § 15B. [Note 7] The answer identified a number of specific defects

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in the premises, asserted that the tenants had "repeatedly apprised the [l]andlord of the unlawful living conditions," and claimed damages in the amount of the difference between the fair market value and the defective value of the premises. [Note 8] In their answer, the tenants also included a jury demand on all issues.

A judge of the Housing Court held a hearing on July 11, 2018. [Note 9] At the hearing, the tenants confirmed their request for a jury trial. The judge scheduled a pretrial conference for August 29, 2018, to set a trial date. He also ordered that the tenants "pay July use and occupancy, if not already completed," to the landlord and, commencing on August 1, "timely pay into their counsel's [Interest on Lawyers' Trust Account (IOLTA account)] monthly use and occupancy pending further order of the court." Per the order, the tenants paid the landlord the July use and occupancy and thereafter began depositing monthly use and occupancy payments of $2,125 (the last previously agreed-upon rent) into their attorney's IOLTA account.

On August 17, 2018, the tenants filed a motion for partial summary judgment with respect to their allegations of the landlord's violation of G. L. c. 186, § 15B, and G. L. c. 93A, as well as the landlord's claim for eviction. At a subsequent hearing, a different Housing Court judge denied the tenants' motion on the ground that there were material issues of disputed facts.

On October 24, 2018, because a trial date had not yet been scheduled, the landlord filed a one-page motion requesting that the court "tender to the [landlord] the rental payments now in [the tenants'] attorney's IOLTA account and [order the tenants] to pay reasonable use and occupancy each month while this case awaits trial." The motion recited the procedural history of the case and asserted that the landlord "has not been paid any rent for the months of June, August, September or October 2018, and continues to pay his monthly mortgage from his savings." The tenants filed an opposition to the motion for use and occupancy payments asserting, as is relevant here, that the landlord did not

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meet the standards for injunctive relief. [Note 10]

On October 31, 2018, a third judge of the Housing Court held a hearing on the landlord's motion. The judge ordered, "Commencing November 1, 2018, the [tenants] shall pay use and occupancy of $2,150.00 per month by the [first] -- no later than the [fifth] -- day of each month through the [landlord's] counsel." [Note 11] The judge further ordered, "This matter shall be scheduled for a pretrial conference on the next available date and jury trial." The order did not address the landlord's request that the judge order payment to the landlord of the use and occupancy amounts for August, September, and October that were being held in the tenants' attorney's IOLTA account.

On November 30, 2018, the tenants filed a petition for interlocutory appeal from the judge's order pursuant to G. L. c. 231, § 118. We transferred the appeal to this court on our own motion.

2. Discussion. a. Statutory framework. i. Liability of tenant at sufferance for use and occupancy. We begin by setting out the statutory authority for the liability of a tenant at sufferance for use and occupancy. [Note 12] General Laws c. 186, § 3, provides that "[t]enants at sufferance in possession of land or tenements shall be liable to pay rent therefor for such time as they may occupy or detain the same." Rubin v. Prescott, 362 Mass. 281, 285 (1972), quoting G. L. c. 186, § 3. See Ghoti Estates, Inc. v. Freda's Capri Restaurant, Inc., 332 Mass. 17, 26 (1954), citing G. L. (Ter. Ed.) c. 186, § 3 ("tenant at sufferance was liable to pay for use and occupation for such time as it occupied the premises"). [Note 13] The

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payment for use and occupancy imposed by this statute was intended to "prevent any tenant from occupying premises without making compensation to his landlord." Lowell Hous. Auth. v. Save-Mor Furniture Stores, Inc., 346 Mass. 426, 430 (1963), quoting Merrill v. Bullock, 105 Mass. 486, 491 (1870). [Note 14] The tenant owes the landlord the "fair rental value of the premises." Lowell Hous. Auth., supra at 431. Accord Kobayashi v. Orion Ventures, Inc., 42 Mass. App. Ct. 492, 502 (1997) ("correct measure for a use and occupancy charge" owed by tenant at sufferance following lease termination "was the then current fair rental value of the premises"). However, the "liability of a tenant at sufferance is not to be determined arbitrarily by the rent fixed in a lease with the former owner, but rather is the sum which the trier of fact finds the use and occupation were reasonably worth." Lowell Hous. Auth., supra. [Note 15] In particular, conditions-related issues such as breaches of the warranty of habitability or covenant of quiet enjoyment may reduce the fair value of the premises, as discussed infra.

A landlord may recover both rent arrearage and unpaid use and occupancy in a summary process action. General Laws c. 239, § 2, states that a landlord "may bring the action by a writ in the form of an original summons to the defendant to answer to the claim of the plaintiff that the defendant is in possession of the land or tenements in question, describing them, which he holds unlawfully against the right of the plaintiff, and, if rent and use and occupation is claimed, that the defendant owed rent and use and occupation in the amount stated" (emphasis added). In turn, G. L. c. 239, § 3, provides that "if the court finds that the plaintiff is entitled to possession, he shall have judgment and execution for possession and costs, and, if rent is claimed as provided in [§ 2] and found due, the judgment and execution shall include the

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amount of the award" (emphasis added). A landlord also may amend his or her complaint to claim use and occupancy damages that accrue during the pendency of a summary process action. 33A E.G. Daher & H. Chopp, Landlord and Tenant Law § 17:2, at 469 (3d ed. 2000), citing Mass. R. Civ. P. 15 (d), 365 Mass. 761 (1974) ("The action may be amended from time to time up to the trial date"). Furthermore, a "court should include all rent that has become due up to the time of the hearing if the tenant is still in possession." Residential Landlord-Tenant Benchbook 71 (W.E. Hartwell ed., 3d ed. 2013).

ii. Tenant's defenses and counterclaims relevant to liability for use and occupancy. We review various statutory or common-law defenses and counterclaims that may reduce or eliminate a tenant's liability for ongoing use and occupancy. In particular, we address provisions in the statutes under discussion specifically directed at use and occupancy payments.

Section 8A provides a "tenant or occupant" with a defense against a landlord's suit for possession based on nonpayment of rent or no-fault termination where the tenant has damages from counterclaims that equal or exceed the landlord's damages. G. L. c. 239, § 8A, first par. Furthermore, even where the landlord's damages exceed the tenant's, the tenant has a mandatory seven-day cure period in which to pay the landlord's damages and retain possession. G. L. c. 239, § 8A, fifth par. Section 8A is the so-called rent withholding statute. It was originally enacted to provide a defense against eviction to a tenant who was not paying all or part of the rent due to uninhabitable premises. See Boston Hous. Auth. v. Hemingway, 363 Mass. 184, 193 (1973) (original purpose of § 8A to "grant[] the tenant the right to withhold rent in order to aid effective enforcement of State Sanitary Code regulations"). The Legislature has amended the statute, however, to "increase the availability of counterclaims to tenants." Meikle v. Nurse, 474 Mass. 207, 213 (2016). See id. at 213-214 (tenant had defense to possession based on counterclaim that landlord failed to comply with provisions of security deposit statute, G. L. c. 186, § 15B). Section 8A now permits a tenant to raise "[a]ny and all counterclaims . . . to offset the rent" so long as they relate to the rental or tenancy. Residential Landlord-Tenant Benchbook, supra at 75. See Meikle, supra ("steady progression in the availability of tenant defenses, culminating in the elimination of conditions-based restrictions, confirms the Legislature's intent to provide tenants with a broad set of defenses and counterclaims in

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the summary process action"). [Note 16] The tenant must meet certain preconditions to benefit from § 8A. See Rubin, 362 Mass. at 287-288. [Note 17] The tenant need not place the rent in an escrow account, unless he or she voluntarily chooses to do so or is so ordered by the court in the manner discussed infra. See Daher & Chopp, supra at § 16:44, at 373.

With respect to interim use and occupancy payments, § 8A is less than a model of clarity. The statute provides: "The court after hearing the case may require the tenant or occupant claiming under this section to pay to the clerk of the court the fair value of the use and occupation of the premises less the amount awarded the tenant or occupant for any claim under this section, or to make a deposit with the clerk of such amount or such installments thereof from time to time as the court may direct, for the occupation

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of the premises." G. L. c. 239, § 8A, fourth par. The application of these provisions before trial is discussed infra.

A particularly important counterclaim is one based on breach of the warranty of habitability. [Note 18] The warranty of habitability typically requires that the physical conditions of the premises conform to the requirements of the State sanitary code. See Boston Hous. Auth., 363 Mass. at 200-201 & n.16. The "tenant's obligation [to pay full rent] abates as soon as the landlord has notice that premises failed to comply with the requirements of the warranty of habitability." Berman & Sons, Inc. v. Jefferson, 379 Mass. 196, 198 (1979). However, the "tenant remains 'liable for the reasonable value, if any, of his use of the premises for the time he remains in possession.'" South Boston Elderly Residences, Inc. v. Moynahan, 91 Mass. App. Ct. 455, 462 (2017), quoting Boston Hous. Auth., supra at 202. Thus, the tenant "may raise the landlord's breach of his warranty of habitability as a partial or complete defence to the landlord's claim for rent owed for the period when the dwelling was in uninhabitable condition and the landlord or his agent had written or oral notice of the defects." Boston Hous. Auth., supra at 202-203. "Damages for breach of the implied warranty of habitability are measured by 'the difference between the value of the dwelling as warranted (the rent agreed on may be evidence of this value) and the value of the dwelling as it exists in its defective condition.'" Cruz Mgt. Co. v. Wideman, 417 Mass. 771, 775 (1994), quoting Boston Hous.

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Auth., supra at 203. [Note 19]

Certain statutes also entitle a tenant to pay a reduced rent because the tenant took affirmative action to correct conditions affecting the habitability of the premises. The so-called "repair and deduct" statute, G. L. c. 111, § 127L, first and second pars., allows a tenant, after written notice to the landlord of violations of the State sanitary code or other conditions-related defects, to deduct "an amount necessary to pay for such repairs . . . from rent due to the owner." [Note 20] Additionally, pursuant to G. L. c. 111, § 127C, a tenant may file a petition to enforce the provisions of the State sanitary code. [Note 21] As under § 8A, G. L. c. 111, § 127F, first par., provides that "[i]f the court finds after hearing that the facts are as alleged in said petition, it may by written order authorize the petitioner . . . to pay to the clerk of the court the fair value of

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use and occupation of the premises, or such installments thereof from time to time as the court may direct." The statute also provides: "The court may direct the clerk by written order to disburse all or any portion of the rental payments received by him to the [landlord] for the purpose of effectuating the removal of the violation. The court may also direct the clerk to make such other disbursements of the rental payments to the [landlord] . . . as in the judgment of the court will permit the owner to maintain the property." G. L. c. 111, § 127F, first and second pars.

b. Authority and procedure for interim use and occupancy payment. We conclude that, in situations where they apply, § 8A and G. L. c. 111, § 127F, authorize a court to order use and occupancy payments that become due pending trial to be paid into the court. We further conclude that, under its equitable authority, a judge may order use and occupancy payments into private escrow accounts, and, in certain limited circumstances, directly to the landlord. Such interim use and occupancy payments cannot be ordered unless a motion for such payments is made by the landlord, a hearing is held, and the judge provides reasons for such an award based on the factors discussed infra. [Note 22]

i. Court's authority to order ongoing use and occupancy payments. We conclude that § 8A, the rent withholding statute, grants a court discretionary authority to order interim use and occupancy payments into the court that reflect the "fair value of the use and occupation" of the premises. G. L. c. 239, § 8A, fourth par. The statute is not as clear as it could be: the relevant provision states that the "court after hearing the case may require the tenant or occupant claiming under this section to pay to the clerk of the court the fair value of the use and occupation of the premises . . . or such installments thereof from time to time as the court may direct, for the occupation of the premises" (emphasis added). Id. This language could be read as limited to posttrial awards, see, e.g., G. L. c. 239, § 11, but we conclude that a reading that allows

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for interim payments as well is more consistent with the statutory purposes of protecting both landlord and tenant rights during ongoing summary process proceedings. The reference to installment payments "from time to time as the court may direct" appears to encompass ongoing proceedings and interim payments and not just a final, posttrial resolution. See Anderson v. National Union Fire Ins. Co. of Pittsburgh PA, 476 Mass. 377, 381-382 (2017) ("All the words of a statute are to be given their ordinary and usual meaning, and each clause or phrase is to be construed with reference to every other clause or phrase without giving undue emphasis to any one group of words, so that, if reasonably possible, all parts shall be construed as consistent with each other so as to form a harmonious enactment effectual to accomplish its manifest purpose" [citation omitted]). [Note 23]

Moreover, the legislative history of § 8A supports the interpretation that these "installments" refer to use and occupancy payments that become due while the case is pending. In 1967, § 8A was amended to provide that the "court may require the person claiming a defense under this section to pay all or any portion of the rent due or to become due into court or make a deposit in court of the entire amount, or such instalments thereof from time to time, as the court may direct, for the occupation of the premises" (emphases added). St. 1967, c. 420, § 1. In 1975, the passage substantially acquired its current form when it was amended to provide that the "court after hearing the case may require the person claiming a defense under this section to pay to the clerk of the court the fair value of the use and occupation of the premises less the amount awarded a tenant for any counterclaim or make a deposit of such amount or such installments thereof from time to time as the court may direct, for the occupation of the premises" (emphases added). St. 1975, c. 467, § 3.

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The evolution of the statute supports the interpretation that "instalments" originally referred to "rent due or to become due," i.e., to use and occupancy payments that accrued while the case was ongoing. We thus conclude that § 8A authorizes a judge, following a hearing, to order interim use and occupancy payments to be paid into the court.

The statute authorizing a tenant to bring a petition alleging sanitary code violations, G. L. c. 111, § 127F, first par., is worded similarly to § 8A. It provides: "If the court finds after hearing that the facts are as alleged in said petition, it may by written order authorize the petitioner . . . to pay to the clerk of the court the fair value of the use and occupation of the premises, or such installments thereof from time to time as the court may direct" (emphasis added). [Note 24] This statute further provides that the court may order the clerk of the court to "disburse all or any portion of the rental payments received by him to the respondent for the purpose of effectuating the removal of the violation" or to "make such other disbursements of the rental payments to the respondent or to any other person as in the judgment of the court will permit the owner to maintain the property." G. L. c. 111, § 127F, second par. Similar to § 8A, the statute also provides that "[w]hen the violation is removed, the court shall direct that the balance of funds, if any, remaining with the clerk be paid to the [landlord]." G. L. c. 111, § 127F, third par. As with § 8A, we conclude that G. L. c. 111, § 127F, encompasses interim use and occupancy awards.

We further conclude that, even in situations not covered by § 8A and G. L. c. 111, § 127F, a court's equitable powers support its discretionary authority to order interim use and occupancy payments. The Housing Court and District Court both have the same equity jurisdiction as the Superior Court with respect to matters within their subject matter jurisdiction such as summary process actions. Compare G. L. c. 185C, § 3 ("[i]n all matters within their jurisdiction, the divisions of the housing court department shall have all the powers of the superior court

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department"), and G. L. c. 218 § 19C (District Court has "same equitable powers and jurisdiction as is provided for the superior court"), with G. L. c. 214, § 1 (superior court has "general equity jurisdiction"). In particular, the Housing Court has the "power to grant temporary restraining orders and preliminary injunctions as justice and equity may require" and the "power and authority for enforcing orders, sentences and judgments made or pronounced in the exercise of any jurisdiction vested in them, and for punishing contempts of such orders, sentences and judgments and other contempts of their authority." G. L. c. 185C, § 3. Moreover, Rule 9 of the Uniform Summary Process Rules (1980) provides that, although the "issuance of restraining orders and injunctions shall be governed by applicable statutes and by Rule 65 and 66, respectively, of the Massachusetts Rules of Civil Procedure . . . , the court may modify the time periods and notice requirements of those rules and otherwise fashion the relief as it deems appropriate" (emphasis added). [Note 25]

Courts from other jurisdictions have concluded that a court's equitable powers include the discretionary authority to issue interim orders for use and occupancy payments: the leading authority is Bell v. Tsintolas Realty Co., 430 F.2d 474, 479 (D.C. Cir. 1970), in which the United States Court of Appeals for the District of Columbia Circuit articulated many of the different

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factors that we discuss infra. [Note 26]

ii. The requirement of a motion and a use and occupancy hearing. Regardless of whether a judge is acting pursuant to specific statutory authorization or under the court's general equitable power, a judge should issue an order for interim use and occupancy payments "only on motion of the landlord, and only after notice and opportunity for a hearing on such a motion." Bell, 430 F.2d at 479. The hearing must provide both parties an "adequate opportunity to argue the equities of their case," including presenting evidence. Dameron v. Capitol House Assocs. Ltd. Partnership, 431 A.2d 580, 584 (D.C. 1981), overruled on other grounds by McQueen v. Lustine Realty Co., 547 A.2d 172, 174 (D.C. 1988). See, e.g., G. L. c. 239, § 8A, fourth par. ("In determining said fair value [of the use and occupation of the premises], the court shall consider any evidence relative to the effect of any conditions claimed upon the use and occupation of residential premises"). At the hearing the judge should consider and balance the relevant factors discussed infra in order to determine whether an order for use and occupancy payments is appropriate, and, if so, what the amount should be and where the payments should be directed. The over-all balancing of equities must be left on a "case-by-case basis to the discretion of the trial judge." Bell, supra at 483. We will review such balancing only for an abuse of discretion.

For the purpose of guiding that exercise of discretion, we set out the most relevant factors, albeit recognizing that not all the factors may be applicable in a particular case, and that a full consideration of the applicable factors, individually and collectively, cannot be made without a trial on the merits. One important

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set of factors relates to the landlord's statutory entitlement to use and occupancy payments from a tenant at sufferance and the increasing likelihood of harm to the landlord from the prolongation of a summary process. Accordingly, the first factor to be considered from the landlord's perspective is that defined by G. L. c. 186, § 3: "[t]enants at sufferance in possession of land or tenements shall be liable to pay rent therefor for such time as they may occupy or detain the same." The Legislature has recognized that "time lost in regaining [real property] from a party in illegal possession can represent an irreplaceable loss to the owner." Commentary to Rule 1 of the Uniform Rules of Summary Process (1980). The judge should thus consider the time delay expected before final resolution as a factor. "Because summary process is designed 'to secure the just, speedy, and inexpensive determination' of eviction actions, it progresses rapidly through a series of complex steps and deadlines." Adjartey v. Central Div. of the Hous. Court Dep't, 481 Mass. 830, 850 (2019) (Appendix), quoting Rule 1 of the Uniform Summary Process Rules. Jury trials will extend the typical timeframe substantially. See Bell, 430 F.2d at 482 (taking into consideration that "landlord has lost the advantage of the summary proceeding and is instead exposed to a prolonged period of litigation without rental income" in determining whether interim use and occupancy payments are appropriate). [Note 27]

Other factors to be considered from the landlord's perspective include the "amount of rent alleged to be due, the number of months the landlord has not received even a partial rental payment, . . . the amount of the landlord's monthly obligations for the premises, . . . and whether the landlord faces a substantial threat of foreclosure." Bell, 430 F.2d at 484.

From the tenant's perspective, the most important factors include his or her defenses or counterclaims, including but not limited to those asserting a breach of the warranty of habitability, and the likelihood of success on those defenses or counterclaims. As discussed supra, any and all counterclaims related to the rental premises may justify the withholding of rent under § 8A. Counterclaims

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asserting a breach of the warranty of habitability also may provide a rent abatement in whole or in part. See Haddad v. Gonzalez, 410 Mass. 855, 872-873 (1991) (discussing warranty of habitability and tenant's right to benefit of bargain); Boston Hous. Auth., 363 Mass. at 198 ("tenant's obligation to pay rent is predicated on the landlord's obligation to deliver and maintain the premises in habitable condition"). [Note 28] The judge also should consider whether a tenant had to pay out of pocket for repairs or maintenance to address habitability issues at the premises. See Super, The Rise and Fall of the Implied Warranty of Habitability, 99 Calif. L. Rev. 389, 433 (2011) (tenant living in uninhabitable unit may have to spend money on repairs that otherwise would go to rent). The judge should also consider the requirements set out in § 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. As mentioned, the amount of any use and occupancy ordered must not exceed the fair value of the rental premises. Lowell Hous. Auth., 346 Mass. at 431.

Further relevant considerations regarding defenses or counterclaims would be "whether the housing code [or other] violations alleged are de minimis or substantial" and whether documentation such as inspection reports or photographs support a preliminary determination regarding such conditions. Bell, 430 F.2d at 484. See Boston Hous. Auth., 363 Mass. at 200 n.15 ("A housing inspection report which certifies that Code violations exist which 'may endanger or materially impair the health or safety, and the well-being of any tenant therein or persons occupying said property' would constitute evidence of a material breach and the landlord's notice of that breach"); Dameron, 431 A.2d at 582 (photographs relevant to determination of interim use and occupancy payments); Pugh v. Holmes, 486 Pa. 272, 293 (1979) (in setting amount of use and occupancy payment, court should consider "seriousness and duration of the alleged defects, and the likelihood that the tenant will be able to successfully demonstrate the breach of warranty"). See also C.F. Downing & J.M.

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McCreight, Termination of Residential Tenancies, in Residential and Commercial Landlord-Tenant Practice in Massachusetts § 11.1, at 11-38 (Mass. Cont. Legal. Educ. 3d ed. 2016 & Supp. 2018). ("Not every breach of the State Sanitary Code . . . will be deemed sufficient for the court to determine that the value of the apartment has been diminished").

To avoid creating a "monetary barrier" to an impecunious tenant with a potentially meritorious defense who has requested a jury, while also keeping in mind financial hardship to a landlord, the judge has discretion to consider factors bearing on the financial positions of the parties when deciding on the award of interim use and occupancy payments. Bell, 430 F.2d at 480. A relevant factor is whether the "tenant has been allowed to proceed in forma pauperis." Id. at 482. See CMJ Mgt. Co. v. Wilkerson, 91 Mass. App. Ct. 276, 284 (2017) ("Striking a jury demand [for failure to comply with pretrial conference order in summary process proceeding] . . . must be approached with caution").

If a judge decides to order interim use and occupancy payments, he or she also must determine whether such payments should be made into an escrow account or directly to the landlord (or some combination of the two). [Note 29] In making this determination the judge should weigh the advantages and disadvantages to both parties of escrow versus direct payment, recognizing that escrow creates an incentive for a landlord to make repairs but still requires a tenant to make ongoing payments that ensure that a landlord temporarily deprived of rent will receive any funds to which he or she is entitled upon judgment in the summary process

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action, or even sooner if required repairs are made. See Boston Hous. Auth., 363 Mass. at 193 n.8 (escrowed rent "does not permanently deprive a landlord of the rent but only permits the tenant to withhold it until the stated violations are corrected" [citation omitted]); id. at 201 ("If the landlord remedies the defects, he will recover the withheld rent. . . . The landlord's incentive to repair comes from the knowledge that such action taken before trial will guarantee his full recovery of the withheld rent"). See also Kohner Props., Inc. v. Johnson, 553 S.W.3d 280, 284 (Mo. 2018), quoting Javins v. First Nat'l Realty Corp., 428 F.2d 1071, 1083 n.67 (D.C. Cir.), cert, denied, 400 U.S. 925 (1970) (describing escrow as "excellent protective procedure"); Phillips & Miller, The Implied Warranty of Habitability: Is Rent Escrow the Solution or the Obstacle to Tenant's Enforcement?, 25 Cardozo J. Equal Rts. & Soc. Just. 1, 36 (2018) ("The rent escrow forces a tenant to remain current with her rent payments, protects the landlord's property rights, and provides an incentive for the landlord to expeditiously make repairs"); id. at 39-41 (listing more than twenty States that authorize rent escrow). [Note 30]

In considering whether direct payments should be ordered, the judge should recognize that it may be appropriate to order them so as to maintain the physical condition of the premises, as the judge is already specifically authorized to do by G. L. c. 111, § 127F, second par. See id. (authorizing court to order direct payments to "permit the owner to maintain the property"). Direct payments also may be appropriate when the landlord presents evidence that they are necessary to make mortgage payments on the property or otherwise presents evidence demonstrating a sufficiently pressing need for immediate receipt of the payments. See Fritz v. Warthen, 298 Minn. 54, 61 (1973) ("The court under its inherent powers may order payment of amounts out of [the escrow account] to enable the landlord to meet his obligations on the property or for other appropriate purposes"). Another factor to consider is whether some of the payments are indisputably due. See Dameron, 431 A.2d. at 584-585 (within court's discretion to "maintain[] only the amount in dispute in the registry and pass[] through to the landlord the undisputed rent"). Cf. Kargman v. Dustin, 5 Mass. App. Ct. 101, 113-114 (1977) (pending appeal,

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tenant required to pay into escrow, but not directly to landlord, rent due under lease; payment into escrow of disputed rental increase, "the ultimate legality of which [was] the subject of pending litigation," remanded for possible waiver). This is consistent with § 8A, fourth par., which expressly permits a tenant to "voluntarily deposit with the clerk any amount for rent or for use and occupation which may be in dispute" (emphasis added), and with the court's general equitable duty "to maintain the status quo" pending adjudication, French v. Vandkjaer, 14 Mass. App. Ct. 980, 980 (1982).

Finally, on all these questions we recognize that our courts adjudicating summary process cases are confronted with a crushing number of decisions every day and thus must make determinations regarding interim use and occupancy payments expeditiously based on the limited information presented to them by the parties, who are often appearing pro se. In issuing his or her ruling, the judge should identify the factors considered most relevant and explain the over-all balancing of those factors orally on the record or in a written order. The judge should issue a written order specifying what payments of interim use and occupancy, if any, are due and to whom. Orders requiring direct payment to landlords also should expressly provide the reasons why such direct payment has been ordered, particularly why escrow of such payments does not adequately protect the landlord's interests.

Based on the foregoing, we conclude that the October 31, 2018, order for use and occupancy payments issued by the Housing Court judge was deficient in at least two respects. The tenants raised a number of counterclaims that required the judge to make a preliminary assessment of their validity, in particular whether the tenants might be entitled to withhold or offset rent under § 8A. Here, the judge set the use and occupancy payment in an amount twenty-five dollars higher than the previously agreed-upon rent of $2,125; however, she does not appear to have considered, or at least addressed, the impact of any defective conditions, in particular the sanitary code violations found by the health inspector, on the fair value of the premises. Indeed, neither order providing for interim use and occupancy payments contained any explanations why the payments had been ordered. Although such explanation need not be detailed, it must identify the most important factors considered and provide an over-all balancing of the different interests at stake.

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3. Conclusion. For the foregoing reasons, the order for use and occupancy payments is vacated and the case is remanded for further proceedings consistent with this opinion.

So ordered.