Yes. The Supreme Judicial Court held that when a judge waives the appeal bond for an indigent occupant appealing an eviction, the judge can still require monthly use and occupancy payments, and the Commonwealth will not pay them. The amount may even exceed what the occupant can afford, as long as the judge fairly weighs all the relevant factors. This is a published decision of the Supreme Judicial Court and is binding statewide.
What happened
A bank bought a home in Webster at a foreclosure auction and later sold it. The new owners brought a summary process case in the Housing Court against the people still living there and won a judgment for possession in March 2023. One occupant appealed and asked the court to waive the appeal bond because she was indigent. The judge found her indigent and waived the bond, but ordered her to pay $1,275 per month in use and occupancy as a condition of keeping her appeal alive. The evidence showed the home’s fair rental value was about $1,700 per month. The judge refused her request to have the Commonwealth make the payments. A single justice of the Appeals Court reported questions to a panel, and the Supreme Judicial Court took the case on its own motion.
What the court decided
In Frechette v. D’Andrea, 494 Mass. 167 (2024), the court decided three points.
A later buyer can bring the eviction case. The occupant argued that only the buyer at the foreclosure sale could sue for possession. The court disagreed. A later buyer who owns the property is a person entitled to the land under G.L. c. 239, § 1, and has standing to bring summary process.
Use and occupancy is not a court cost the state covers. The indigent court costs law, G.L. c. 261, §§ 27A to 27G, lets a court waive, substitute, or have the Commonwealth pay “extra fees and costs” for an indigent party. Section 27A lists appeal bonds among those costs. Use and occupancy is not on the list. The court held that the more specific eviction appeal statute controls. Under G.L. c. 239, § 5 (e), when the bond is waived, the court must still require the occupant to pay rent in installments as it comes due during the appeal. The court read “rent” in that provision to include use and occupancy. So these payments cannot be waived, substituted, or shifted to the Commonwealth.
Payments above what you can afford are allowed, if the judge weighs everything. The court held that ordering payments that may exceed an occupant’s ability to pay does not violate due process, equal protection, or article 11 of the Declaration of Rights. It applied rational basis review. Indigency remains a relevant factor, the court said, but it is not the sole determinant. The judge must fairly weigh the fair rental value, the strength of the defense, the monthly mortgage, real estate taxes, how long the occupant has gone without paying, how long the appeal may last, and both sides’ finances. The judge here did that. The order was about 25 percent below fair rental value, and no payments had been made. The court sent the case back to the single justice for further proceedings.
The court did not decide whether the occupant’s appeal had merit. It noted that a party who wants to contest the payment amount can seek review under G.L. c. 239, § 5 (f), which, for a Housing Court case, calls for review by a single justice of the Appeals Court as if deciding the matter fresh.
What this means for you
If you are appealing an eviction and cannot afford a bond, you can ask the court to waive it. But a waiver does not mean you can stay without paying while the appeal is pending. Expect an order to pay monthly use and occupancy, and know that the Commonwealth will not pay it for you. The judge may set an amount that strains your budget.
That makes the hearing on the amount important. Your income matters, but so does the strength of your defense, the property’s rental value, and what you have paid so far. A weak appeal and months without payment can push the number up. A strong defense and a clear record of your finances can bring it down.
The decision also confirms that a buyer who purchased from the foreclosing bank can bring the eviction case. That argument alone will not end the case.
What to do now
- File your notice of appeal and your motion to waive the bond on time, with a sworn statement of your income and expenses.
- Bring proof of your full household income and costs to the hearing.
- Be ready to explain why your defense is not frivolous, and gather evidence of the property’s real rental value.
- If you think the payment amount is wrong, ask promptly for review by a single justice under G.L. c. 239, § 5 (f).
- Keep records of every payment you make while the appeal is pending.
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.
