Adjartey v. Cent. Div. of the Hous. Court Departmentand, 120 N.E.3d 297 (2019)

Citation: Adjartey v. Cent. Div. of the Hous. Court Departmentand, 120 N.E.3d 297 (2019)
Parent Document: Adjartey v. Cent. Div. of the Hous. Court Departmentand, 120 N.E.3d 297 (2019)
Jurisdiction: Massachusetts (state)
Effective Date: 2019-04-10
Original Source: https://www.courtlistener.com/opinion/7178223/adjartey-v-cent-div-of-the-hous... ↗

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Before a tenant's appeal is allowed to proceed, the tenant may be ordered to furnish the court with an appeal bond "in a sum as the court orders," payable to the landlord. G. L. c. 239, § 5 (c ). That bond must be "conditioned to pay to the plaintiff, if final judgment is in plaintiff's favor, all rent accrued at the date of the bond, all intervening rent, and all damage and loss which the plaintiff may sustain by the withholding of possession of the land or tenements demanded and by any injury done thereto during the withholding, with all costs, until delivery of possession thereof to the plaintiff." Id. In actions for possession after a foreclosure, the appeal bond must be conditioned to pay "all costs and ... a reasonable amount as rent of the land from the day when the mortgage was foreclosed until possession of the land is obtained by the plaintiff." G. L. c. 239, § 6. In actions for possession after the land is purchased, the appeal bond must be conditioned to pay "all costs and ... a reasonable amount as rent of the land from the day that the purchaser obtained title to the premises until the delivery of possession thereof to him, together with all damage *324and loss which he may sustain by withholding of possession of the land or tenement demanded, and by any injury done thereto during such withholding with all costs." Id. **859An indigent party may move to waive the appeal bond by filing a motion within the ten-day period for appeal. G. L. c. 239, § 5 (e ). The court must grant this motion if it finds (1) that the appellant is indigent and (2) that the appellant has a nonfrivolous defense to the eviction action. Id. A judge's "determination that a defense is frivolous requires more than the judge's conclusion that the defense is not a winner and that the party claiming it is wrong as a matter of law. Frivolousness imports futility -- not a 'prayer of a chance.' " Home Sav. Bank of Am., FSB v. Camillo, 45 Mass. App. Ct. 910, 911, 697 N.E.2d 134 (1998), quoting Pires v. Commonwealth, 373 Mass. 829, 838, 370 N.E.2d 1365 (1977). Even if the appeal bond is waived, a court may order the tenant to make "use and occupancy" payments -- similar to rent -- while an appeal is pending. See G. L. c. 239, § 5 (e ) ; Kargman v. Dustin, 5 Mass. App. Ct. 101, 110, 359 N.E.2d 971 (1977) ("Legislature, after providing for the waiver of bond in hardship cases, decided to redress an imbalance in summary process appeals to permit a judge, in the exercise of his sound discretion, to order payment of an appropriate portion of the rent as security"). If a tenant fails to pay the appeal bond or use and occupancy as ordered, his or her appeal may be dismissed. See G. L. c. 239, § 5 (h ) ; Cambridge St. Realty, LLC, 481 Mass. at 137 n.19, 113 N.E.3d 303 ( G. L. c. 239, § 5 (h ), "permits dismissal of an appeal by the trial court ... when a tenant fails to post the initial appeals bond or use and occupancy payment").

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