A commercial tenant that keeps ignoring a landlord’s written requests to fix lease violations can lose its space. In an October 2024 decision, the Appeals Court upheld an eviction of a restaurant that stored equipment outside its unit and never moved a storage trailer, after more than a year of requests and a formal default notice it did not cure. The landlord’s patience was not a waiver. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.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 tenant ran a restaurant in a Leominster strip mall. Around 2015 or 2016, the landlord verbally let the tenant keep a storage trailer on the landlord’s nearby lot for free, on the understanding it would be moved when asked. A new five year lease in 2020 barred storing equipment outside the premises without written approval and required the tenant to comply with any other agreement with the landlord about the premises. In November 2020 the landlord leased the nearby lot to another business and told the tenant to move the trailer. The landlord asked repeatedly through 2021, and the tenant said the outside storage would be taken care of, but did not act. In January 2022 the landlord served a written notice of default, and when the tenant did not cure, ended the lease in February 2022. The landlord then allowed a six month tenancy at will so the restaurant could relocate, ended that tenancy, and filed for possession when the tenant stayed.
What the court decided
In Gagne Realty Corp. v. BBG Souza Enterprises, Inc., No. 23-P-1306 (Mass. App. Ct. Oct. 29, 2024) (Rule 23.0 decision), the Appeals Court affirmed the judgment giving the landlord possession and its attorney’s fees and costs.
The rule. A landlord may end a commercial lease for a material breach, meaning a breach of an essential and inducing feature of the deal, or under a default clause. If a breach is insignificant or accidental, courts will not allow termination even with a default clause, and equity may sometimes protect a tenant from forfeiture. DiBella v. Fiumara, 63 Mass. App. Ct. 640 (2005).
Material breaches. The outside storage ban was material. The landlord would not have signed the 2020 lease without it, because every tenant in the plaza shared common areas and had to follow the same rule. Failing to move the trailer also breached a material term, since the lease required compliance with the parties’ other agreements about the premises and the trailer was tied to the restaurant’s operations.
Defaults, and no equitable rescue. The same clause made any failure to perform a default. The violations were neither insignificant nor accidental. The court saw no sign the landlord used an obscure term as a tripwire to end the lease over a trifle. It had worked with the tenant for a long time to get the problems fixed.
No waiver. Waiver in a commercial lease is a question of fact. M.J.G. Props., Inc. v. Hurley, 27 Mass. App. Ct. 250 (1989). In that case, the landlord knew of breaches but never raised them until it sent a termination notice. Here, the landlord raised the outside storage in writing and in person from at least March 2021 on. Accepting rent while patiently asking for compliance did not waive its rights.
Proper notice. The landlord named the breaches in its default notice and notice to quit, as the law requires. Strycharski v. Spillane, 320 Mass. 382 (1946).
What this means for you
This is the trap. Many business tenants assume a landlord who keeps asking politely, and keeps cashing rent checks, will never actually end the lease. That assumption failed here. Repeated written requests followed by a formal default notice built a strong record for the landlord. Rules that protect your neighbors in shared space, like a ban on outside storage, can count as material.
Courts will not end a lease over an insignificant or accidental breach, and equity can sometimes protect a tenant from forfeiture. The difference is often what you do after you get notice.
What to do now
- Treat every written request from your landlord as a warning, and respond in writing with what you will do and when.
- When you get a notice of default, cure each listed item before the deadline, and document it with photos and receipts.
- Get any side deal, like free storage or parking, in writing, including when it ends.
- Get legal advice as soon as a default notice arrives, not after the lease is terminated.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. These cases move on short deadlines.
