A Housing Court judge let a landlord inspect a tenant’s apartment, but only through a contractor, with the landlord’s principal and real estate agent kept out. The landlord appealed, but the Appeals Court never reached the merits: a later settlement barring the landlord from entering except in emergencies made the appeal moot, and the court sent the case back to be dismissed. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.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 brought an eviction case against the tenant in the Housing Court in March 2022. During that case, the judge allowed the landlord’s request for access to inspect, with conditions. A jury found for the tenant in December 2022. The landlord then filed a new case asking for an order to inspect. In August 2023 the same judge issued an order with essentially the same conditions as before: a contractor could inspect on ten days’ notice, with the landlord’s lawyer present, but neither the landlord’s principal nor the real estate agent could be there. While the landlord’s appeal was pending, the parties settled a later eviction case, and the agreement entered as a judgment said the landlord and its agents would not enter the apartment except in an emergency.
What the court decided
In Zbylut Realty, LLC v. Cooper, No. 23-P-1431 (Mass. App. Ct. January 8, 2025) (Rule 23.0 decision), the Appeals Court held the appeal was moot.
The landlord argued the inspection order worked like a preliminary injunction, which a party may appeal right away under G.L. c. 231, § 118, second paragraph. The court assumed, without deciding, that the appeal was properly before it.
A case is moot when the party who claims harm no longer has a personal stake in the outcome. Bronstein v. Board of Registration in Optometry, 403 Mass. 621 (1988). Here, the settlement replaced the inspection order. The landlord was asking for relief from an order that no longer governed anything between the parties, and both sides agreed no live dispute remained.
The parties asked the court to decide anyway, as an issue that keeps coming up. The court declined, and explained it would not have reached the merits even if it had tried. The landlord’s main argument was that the judge improperly relied on evidence from the earlier hearing. But the landlord never objected to that at the August 2023 hearing. Issues not raised in the trial court are generally not considered on appeal. Vassallo v. Baxter Healthcare Corp., 428 Mass. 1 (1998). Worse for the landlord, its own lawyer was the one who first pointed the judge to what the judge had done in the earlier case. A party cannot complain on appeal about a judge considering material that the party itself asked the judge to consider. Rabinowitz v. Schenkman, 103 Mass. App. Ct. 538 (2023).
The Appeals Court sent the case back to the Housing Court to vacate the order and dismiss the complaint, not on the merits but because it was moot.
What this means for you
This decision does not set a rule about who may inspect your home. It does show three practical points.
First, a Housing Court judge may be asked to set conditions on a landlord’s access. In this case, the judge allowed an inspection but controlled who could come in, how much notice the tenant got, and who had to be present. The Appeals Court did not review whether those conditions were proper.
Second, a settlement agreement can matter more than a court order. Once an agreement for judgment says when the landlord may enter, it can replace earlier orders on the same subject. Read access terms closely before you sign. They will govern your home going forward.
Third, what happens at the hearing counts. If you, or the landlord, do not object to something at the time, it is usually too late to raise it on appeal. That rule cuts both ways, and it protects tenants who make their record in the trial court.
What to do now
- If your landlord asks for access, ask for the request in writing, with the date, time, purpose and who will come.
- If you have had conflict with the landlord or an agent, tell the judge and ask for conditions, such as a neutral contractor or notice in advance.
- Before you sign any agreement, check the access terms: who may enter, how much notice, and what counts as an emergency.
- Keep copies of every order and agreement, and follow them exactly.
- At any hearing, raise your objections out loud and on the record.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. Housing Court deadlines are short.
