Yes. The Appeals Court affirmed an eviction where the lease said the second floor of a barn was not to be used as a dwelling, and one tenant was sleeping and showering there. That was enough even if the space lacked permanent cooking facilities and so did not meet the building code definition of a dwelling unit. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.
What happened
Three tenants rented a property that included a barn. The lease said the barn’s second floor was not to be used as a dwelling. The landlord saw sleeping quarters, a bed and personal clothing up there, and one tenant admitted she had slept and showered in the barn. The landlord asked her to move into the main house, but afterward he saw no bedroom set up for her there, and another tenant texted him that her moving in was not an option because two of the tenants were not speaking. After a trial, a Housing Court judge awarded the landlord possession and costs and dismissed the tenants’ counterclaims without prejudice.
What the court decided
The Appeals Court affirmed in Shaker v. Vickery, No. 24-P-1158 (Mass. App. Ct. December 5, 2025) (Rule 23.0 decision).
Lease meaning versus building code meaning. The tenant who wrote the brief argued that the barn’s second floor had no permanent cooking equipment, so it could not be a “dwelling unit” as the state building code defines that term. The court said this mixed up two different questions. One is the space’s legal status under the code. The other is how the space was actually used under the lease. The lease did not say the barn counted as used as a dwelling only if someone did every activity in the code definition, including cooking. On the facts the judge found, she could reasonably conclude a tenant was living there, and that was a lease violation.
The text messages. The tenant also complained that the landlord used a text exchange at trial that he had not handed over before trial. The court rejected this because nothing in the record showed the tenant had served discovery requests, that the landlord failed to answer them, or that the tenant raised the problem with the judge in time.
Credibility. The tenant argued the landlord’s testimony was not believable. Appeals courts give the utmost deference to the credibility findings of the judge who heard and saw the witnesses. Ginsberg v. Blacker, 67 Mass. App. Ct. 139 (2006). The tenant gave no good reason to second guess the judge.
Procedural problems. The tenants did not file a record appendix, the collection of trial court papers the appeals court needs to review a case. Only one tenant signed the brief, and because he was not a lawyer he could not speak for the others. The court still addressed his main arguments.
Counterclaims. The trial judge had ruled that because this was a fault eviction, G.L. c. 239, § 8A kept the tenants from bringing counterclaims. The Appeals Court noted that it recently held § 8A does not have that broad effect. Campbell v. Abdulla, 105 Mass. App. Ct. 790 (2025). But the tenants did not ask to undo the dismissal, and they appeared to be pursuing similar claims in Superior Court, so the court left the dismissal alone.
What this means for you
A lease use restriction can turn on how a space is actually used, not on its status under the building code. If your lease says a garage, barn, basement or attic is not to be used as living space, this decision suggests a landlord may not have to prove the space meets a building code definition. Sleeping there, keeping a bed and clothes there, or showering there can be enough to show it was used as a dwelling.
The case also shows how appeals are lost on procedure. If you want to argue that the other side hid evidence, you need a record that you asked for it in discovery and raised the issue with the trial judge. And you need to file the required appendix.
There is one point in tenants’ favor. The court flagged that a fault eviction does not automatically shut the door on a tenant’s counterclaims.
What to do now
- Read every use restriction in your lease, especially for outbuildings, basements and attics.
- If the landlord says you are breaking a use rule, answer in writing and stop the use while you get advice.
- If you are sued, serve written discovery requests early so you see the landlord’s evidence before trial.
- Raise any discovery failure with the judge before or at trial, and make sure it is on the record.
- If you have claims against the landlord, raise them in the eviction case and do not assume a fault eviction bars them.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. Housing Court deadlines are short.
