SJC offers roadmap for use and occupancy orders.

Byline: Kris Olson

A recent Supreme Judicial Court decision offers Housing Court and other judges a much-needed roadmap to assess requests by landlords for use and occupancy payments during eviction proceedings, attorneys say.

The SJC clarified that a judge weighing such a request should convene a hearing, at which the tenant should be afforded the opportunity to raise any defenses he might have.

The landlord, meanwhile, would be permitted not only to argue that use and occupancy payments are warranted but that those payments should be made directly to him, rather than be placed in escrow.

Writing for the court in Davis v. Comerford, et al., Justice Scott L. Kafker noted part of the reason that awards of use and occupancy payments have been so haphazard is that G.L.c. 239, 8A, "is less than a model of clarity."

In addition to clarifying the process that should be used a landlord should file a motion, and a hearing should be convened the court also laid out the most relevant factors a judge should consider when deciding whether to order use and occupancy payments.

The SJC said that the process should culminate with judges not only specifying whether payments are due, and if so to whom, but also identifying the factors they considered most relevant in reaching their decision.

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Davis v. Comerford, et al.(37 pages)

THE ISSUE: Can a Housing Court judge enter a pre-judgment order for use and occupancy payments in a summary process action, and can that order require payments to be made directly to the landlord?

DECISION: Yes, in both instances (Supreme Judicial Court)

LAWYERS: David J. Gormley of Brockton (plaintiff)

Arthur Hardy-Doubleday of Boston (defense)[/box]

'Fair and balanced'

The landlord's attorney in Davis, David J. Gormley of Brockton, was among those lauding the decision.

"It's been a long time coming," he said.

Jury trial demands have come to be deployed as a tactic to stretch out for a year or longer what are supposed to be speedy summary process proceedings, according to Gormley.

He said he thought it was fair for the landlord's use and occupancy payments to be offset by the decrease in the value of the premises caused by health code violations.

But the tenants' attorney in Davis, Arthur Hardy-Doubleday of Boston, said he feared that, in practice, tenants will have a difficult time making the necessary showing to get a judge to take habitability issues seriously.

"We may see a...