By Hon. Marylou Muirhead (Ret.)
Hard times breed difficult decisions. The unforeseeable and ever-changing nature of life’s vicissitudes often brings about such decisions. The ramifications from such decisions represent an unavoidable part of litigation, both for the parties privy to the case and the court. Every day, the judiciary wrestles with parties’ changing circumstances through the lens of equity and the weighing of hardships. The Massachusetts Housing Court often relies on settlement as a means to assure an equitable outcome for both parties. More often than not, however, Housing Court litigants do not avail themselves of that means and regret the decisions they made. For example,a young landlord, Cassandra Ferreira, had to make a difficult decision with respect to the single-family home she owned.
The case pits a woman whose life was ravaged by the effects of the pandemic—she had no place to live, her business had foundered, and she was awaiting a surgical procedure while sleeping in the basement of her parents’ home—against a sister and brother, both of whom were disabled and had severely limited income. Albeit in different capacities, each party experienced the unforeseeable and ever-changing circumstances of life, which shaped the case as in many cases for Housing Court litigants.
After experiencing one of life’s unforeseeable circumstances, Ms. Ferreira was forced to move into her parents’ basement. In July 2020, she commenced the process of recovering possession of her house, which she rented to tenants since 2016. As of September 2023, more than three years after serving an initial notice terminating the tenancy, Ms. Ferreira’s tenants remained in possession of her home and the legal process had worked its way to the Massachusetts Appeals Court. This article is an example of the detrimental impact of the failure to take advantage of the Housing Court’s settlement processes during litigation.
The case is Cassandra Ferreira v. Laural Charland, Jason Charland, and James Vasquez,  (No. 20H79SP001676) and was filed in December 2020 (the “2020 Case”). Two of the defendants, Ms. Charland, and Mr. Vasquez, filed answers. At some point, an attorney entered a “limited appearance” on behalf of the Charlands. At least with respect to Ms. Charland, her answer asserted a defense to the eviction and raised a counterclaim—based on a violation of G.L. c. 186 § 22.
The court scheduled a trial on June 22, 2021. Before trial commenced, counsel for Ms. Ferreira stated that he thought counsel for Ms. Charland had agreed that the counterclaims had been satisfied by a payment for damages and the parties were present for the sole purpose of determining whether Ms. Charland was entitled to stay in the property pursuant to G.L. c. 239 § 9.  Counsel for Ms. Charland responded that the counterclaim remained ; but even if it had been resolved, the same claim was still viable as a defense against the Plaintiff’s claim for possession under G.L. c. 239 § 8A . Ms. Charland’s counsel maintained that the defense at issue did not afford a landlord protection based on the damages payment. He further argued that G.L. c. 239 provides for counterclaims and defenses, and claimed that a landlord’s settlement of a counterclaim may not necessarily eviscerate the ability to use the claim as a defense. The court took the issue under advisement and proceeded to take testimony solely on the issue of whether the defendants could be entitled to a stay of execution under G.L. c. 239 §§ 9 and 10.
The Housing Court issued an “order” on June 25, 2021 (“Order”), which stated in relevant part:
. . . Given that the landlord tendered funds for the damages asserted under that claim [M.G.L. c. 186 § 22] and that they were knowingly accepted by the tenants without any reservation of rights, such tender and acceptance satisfied and resolved the tenants’ claim under M.G.L. c. 186, § 22 and it cannot be used to trigger a defense to possession under M.G.L. c. 239 § 8A.
Notably, the court’s order neglected to make any findings of facts. The Order referenced no statements or representations attributable to counsel for either party. Moreover, the Order is devoid of any reference to affidavits submitted by either party relative to a settlement.
As a result of the summary process trial, the Charlands appealed.  The Order on which the appeal was based contains no findings of fact and no rulings of law. At trial, there was a statement that “funds for damages … were knowingly accepted by the tenants” and “resolved the claim under G.L. c. 186 § 22 and it cannot be used to trigger a defense to possession under G.L. c. 239 § 8A.” However, the court did not identify any basis for this statement.
With respect to the Housing Court’s decision regarding the question of whether a settlement of a counterclaim would preclude the assertion of that same claim as a defense, it offered no explanation for its ruling.
After a panel hearing, the justices of the Appeals Court voted to grant an en banc review.  The Appeals Court issued a decision in September 2023 holding that:
[A] landlord’s tender of money damages to the tenant, after the landlord commenced summary process proceedings does not render moot the tenant’s claim to possession, unless the tenant has clearly released the claim, because money damages are but one of two available remedies—the other being the tenant’s ability to remain in the property (possession) upon proof of a valid counterclaim or defense under section 8A.
Ultimately, the Appeals Court remanded the case to the trial court for the judge to make factual findings on the issue of damages and answer the questions of whether the Charlands accepted the tender of payment and, if so, whether that resolved the matter.
Eight justices dissented, however. Three of the eight justices wrote separately voicing their individual dissents and all of the other dissenting justices joined with them. The three dissenting justices who wrote separately wrote passionately.
It has often been said, although perhaps not reduced to writing, that the Massachusetts Legislature has provided tenants with a shield with which to defend against an eviction and a sword to enforce the rights afforded to them by statute. Sometimes circumstance dictates that the best choice is to swing the sword, but not always. The summary process eviction statute (G.L. c. 239) could not account for Ms. Ferreria’s plight.
This is not the case of Snidley Whiplash  tying Nell Fenwick to the railroad track in order to extract the rent. This is a case of an owner who needed to return to her residential property because her other housing had fallen through. Suffering from anxiety and depression, the unheated basement of her parents’ home failed to provide the owner with a living situation adequate for a medical recovery from her conditions.  Regardless, the current occupants of the house owned by Ms. Ferreira also had no place to go and no money to go there. Is this the case where you drag out your sword and rally the troops or concede to the realities of the circumstances and its inevitable result that eventually the owner will regain possession?
But the swords were drawn and, as a result, at least three people, Ms. Ferreira, Ms. Charland and Mr. Charland, spent more than three years worrying about where they were going to live.  We cannot know what was gained in this case, but it is clear what was lost—three years of peace of mind for three people who needed it.
No fact finder can find facts if no facts have been presented. The trial judge stood ready, willing, and able to hear the case. He was met with a statement from plaintiff’s counsel; specifically, “I think that the other side has agreed that the counterclaim has been satisfied ….”  In response to the court’s query about his position, counsel for the defendants stated “[t]here is still a remaining counterclaim of the violation of water statute [sic] and, and an 8A claim based on that ….”  The court later inquired about the exchange of money. Counsel for Ms. Charland stated “… there may have been some checks in reimbursement for water and sewer expenses …”, and “There’s an offer of settlement, but it doesn’t mean it was accepted ….”  The court did not call for testimony from the parties or inquire into the substance of the communication between counsel, whether there was an acceptance of the tender, or whether the checks had been negotiated, as one would have expected given a clear statement of dispute. Neither counsel called for testimony from his client, as they should have.
Without findings of fact and rulings of law, the Appeals Court was without sufficient information to render an informed decision. Did the Defendants acknowledge the receipt of funds? Were the funds accepted in settlement? If yes, what claims were resolved by the settlement? If no, how and when was this communicated to Plaintiff’s counsel, and what happened to the check or checks; where are they? On what basis did the trial judge determine the funds were accepted? On what basis did he conclude that the claim under G.L. c. 239, § 8A was resolved?
The dissenting justices took issue with the idea of a remand given that Ms. Ferreira had been trying to return to her home since 2020. How long was she supposed to wait? But the Appeals Court needs a basis for its decision, and it can’t look beyond what is presented to it by the parties. While deciding a case on an incomplete record results in confusion and frustration, deciding a case with no information in the record should not be done. In this case, there was no information in the record upon which a decision could be based.
However, remanding this case for trial was not the only solution. Because of unforeseeable circumstances, like the ones seen here, summary process in a Housing Court lends itself to settlement. Each Housing Court has several trained mediators in court every day at each location. In these cases, there were four formal opportunities for settlement and many others in between, yet there was no resolution. Did Ms. Ferreira instruct her counsel to go to the mat, no matter how long it took and no matter what is cost? Not likely. Did Ms. Charland tell her lawyer, who never filed a full appearance on her behalf, that she did not care how long it took to resolve the case because she had enough to worry about? Probably not. Why then was the case not resolved? Did everyone miss the forest for the trees?
- Mr. Vasquez did not respond to the complaint and was not represented by the limited appearance counsel who represented Ms. Charland.
- G.L. c. 239 is entitled “Summary Process for Possession of Land” and is referred to colloquially as the “Eviction Law”. Section 9 is entitled “Stay of Proceedings” and allows a stay of the use and / or the issuance of an execution for possession in certain circumstances.
- In fact, counsel Ms. Charland’s attorney took the position that what money had been sent in an attempt to resolve the matter, the checks had not been negotiated and the issue was still open
- M.G.L. c. 239 section 8A, while entitled “Rent withholding: grounds, amount claimed; presumptions and burden of proof; procedures” generally sets out the defenses available to a tenant in a summary process action.
- While the appeal was pending, on December 21, 2021, a second summary process action commenced on December 20, 2021, and asserted the same claims and defenses by both parties.
- In October 2022, the Appeals Court began a pilot program regarding the manner in which cases could be reviewed en banc. See Appeals Court YouTube Channel (https://www.mass.gov/orgs/appeals-court#org-nav-youtube-channel )
- A fictional character who originally appeared as the main antagonist in the Dudley Do-Right of the Mounties segments of the animated television series The Rocky and Bullwinkle Show.” See Wikipedia https://wikipedia.org/wiki/Dudley_Do-Right.
- Ferreira v. Charland, 103 Mass. App. Ct. 194, 215 (2023) (“Mostly, she stays on a couch in the unheated basement of her parents’ home. She suffers from depression and anxiety, both of which have been exacerbated by her living situation. She also is being treated for a medical condition and her doctor opined that ‘[i]t will be medically necessary for [Ferreira] to have a stable living situation in order to have a successful recovery.’”).
- It is worth noting that Ms. Ferreira filed a second summary process action to gain possession of her property on December 20, 2021 and both cases were resolved by agreement on September 7, 2023, two days after the decision came down from the appeals court. See Mass Courts Western Housing Court Dockets 20H79SP001676 & 21H79SP003526 (www.masscourt.org).
- Transcript of “Summary Process Trial Before the Honorable Robert G. Fields” Springfield Massachusetts, Courtroom 1, June 21, 2020, page 4, lines 9 and10. See Appeals Court Docket 2022-P-0300.
- Transcript of “Summary Process Trial Before the Honorable Robert G. Fields” Springfield Massachusetts, Courtroom 1, June 21, 2020, page 4, 23 and 24. Supra.
- Transcript of “Summary Process Trial Before the Honorable Robert G. Fields” Springfield Massachusetts, Courtroom 1, June 21, 2020, page 7, lines 15, 16. Supra.
- Transcript of “Summary Process Trial Before the Honorable Robert G. Fields” Springfield Massachusetts, Courtroom 1, June 21, 2020, page 10, lines 11–13. Supra.
Hon. MaryLou Muirhead (Ret.) is Visiting Professor at New England Law | Boston. Before she retired, Judge Muirhead served as an associate housing court justice for the Boston Division of the Massachusetts Housing Court. Judge Muirhead would like to thank her law student, James Goggins, for his assistance with this article.