No. The Appeals Court held that the Housing Court should not have dismissed occupants’ eviction appeal while their request for review of the appeal bond order was still pending before a single justice, because the dismissal cut off their statutory right to that review. The court also held that missed interim use and occupancy payments under a pretrial order were not a proper reason to dismiss the appeal. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.
What happened
The landlord bought a single family home in Rehoboth at a 2019 foreclosure sale and brought a summary process case against the occupants. In March 2021 the judge ordered interim use and occupancy, later reduced to $2,500 per month. Summary judgment for possession entered on September 20, 2021. The occupants moved for relief from the judgment within ten days, the judge denied that motion on November 3, and they filed a notice of appeal on November 15. They asked the court to waive the appeal bond as indigent. On December 31, 2021, the judge instead ordered a $12,000 bond and $2,500 monthly use and occupancy, finding they were not collectively indigent and had no nonfrivolous issue. The occupants appealed that order and asked a single justice of the Appeals Court to review it. While that request was pending, on February 8, 2022, the Housing Court struck their appeal from the judgment as untimely and dismissed it because they had not posted the bond or paid use and occupancy. The single justice then stayed the eviction.
What the court decided
In L&S Realty LLC v. Merritt, No. 22-P-355 (Mass. App. Ct. Apr. 8, 2024) (Rule 23.0 decision), 104 Mass. App. Ct. 1102, the court vacated the dismissal and affirmed the single justice’s orders.
The right to bond review comes first. Under G.L. c. 239, § 5 (f), a party can ask a single justice of the Appeals Court to review an appeal bond order, including the amount of periodic payments. The single justice decides the matter as if deciding it for the first time and can reduce or rescind the amounts. Once the Housing Court dismissed the appeal from the judgment, the single justice no longer had authority to review the bond order. That premature dismissal effectively took away the occupants’ rights under § 5 (f), so it had to be vacated. On review, the occupants must still show they are indigent and have a defense that is not frivolous, as G.L. c. 239, § 5 (e) requires. The court took no position on how that review should come out.
The appeal was on time. The occupants’ motion for relief from judgment, filed within ten days, paused the appeal clock, and their notice of appeal came within the period that restarted when the motion was denied. The later correction of a clerical error in the judgment amount did not make the notice premature.
Missed pretrial payments did not justify dismissal. The pretrial order warned only that failing to pay could cost the occupants their jury trial. It never said they could lose the right to appeal. Once judgment entered, the unpaid amounts were folded into the judgment and the bond order. Conditioning the appeal on the pretrial order, the court said, would render G.L. c. 239, § 5 a nullity. That differs from failing to pay use and occupancy ordered in a final judgment or an appeal bond order, which can justify dismissal.
Later history. In a later decision, the Appeals Court described how, after the remand, the occupants were ordered to comply with the appeal bond, and the Housing Court struck their appeal when they failed to pay use and occupancy, and no timely appeal followed. The execution was carried out in October 2024. The Appeals Court affirmed a single justice’s denial of a stay in L&S Realty, LLC v. Merritt, No. 24-P-1202 (Mass. App. Ct. Oct. 14, 2025) (Rule 23.0 decision), holding the stay request moot because the occupant no longer lived in the home. The 2024 ruling protected the right to bond review. It did not decide whether the occupants would ultimately have to pay.
What this means for you
If you appeal an eviction and the judge sets a bond or monthly payments you cannot afford, you have a right to fast review by a single justice of the Appeals Court. The Housing Court should not dismiss your appeal while that review is pending. But the protection is temporary. Once the bond order becomes final, failing to pay what is ordered can still end your appeal.
What to do now
- File your notice of appeal within the deadline, and file any motion for relief from judgment promptly.
- If the court sets a bond or payments you cannot afford, appeal that order and ask a single justice for review right away.
- If the Housing Court dismisses your appeal while review is pending, appeal that dismissal on time and ask for a stay.
- Once a final payment order is in place, pay on time and keep proof of every payment.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. Housing Court deadlines are short.
Prior results do not guarantee a similar outcome.
