Yes. If a court orders you to pay use and occupancy while you appeal an eviction and you do not pay, you can lose your appeal on possession. In this case the tenants lost that appeal, but they still won two smaller points: the landlord had to credit a RAFT payment against the judgment, and an unsupported $500 moving fee was thrown out. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.
What happened
On the day of trial, the tenants and the landlord signed an agreement for judgment in the Housing Court. The tenants had a lawyer. They agreed to pay $540 a month in use and occupancy for July and August, to move out by August 31, and to apply for RAFT funds toward a $10,532 judgment. If RAFT issued an award letter and July and August were paid, the landlord would waive the rest of the judgment. The tenants paid July and August and were approved for RAFT, but they did not move out. The judge entered judgment and later stayed the move to September 30, on the condition that the tenants keep paying use and occupancy and pay a $500 moving cancellation fee. A single justice of the Appeals Court waived the appeal bond, found the use and occupancy order reasonable, and paused the eviction until November 1. The tenants did not pay use and occupancy for September or October.
What the court decided
In Resnick v. Silva, No. 23-P-214 (Mass. App. Ct. August 13, 2025) (Rule 23.0 decision), the Appeals Court dismissed the appeal on possession, but corrected two parts of the orders below.
Unpaid use and occupancy ended the possession appeal. The eviction statute allows a court to require periodic payments while a tenant appeals, and allows the appeal to be dismissed if they are not made. G.L. c. 239, § 5 (h). The court relied on 21st Mortgage Corp. v. DeMustchine, 100 Mass. App. Ct. 792 (2022), and Adjartey v. Central Division of the Housing Court Department, 481 Mass. 830 (2019), which both say a tenant who does not pay ordered use and occupancy may have the appeal dismissed. Because the tenants stopped paying, they lost their right to have a panel review the possession judgment. The Housing Court judge did not abuse her discretion in refusing to revive those claims through a later motion to vacate the judgment.
No ineffective lawyer claim in a civil case. The tenants argued their lawyer did a poor job with the agreement. The court explained that this kind of claim belongs to criminal defendants and is not a ground for appeal in a civil case.
The RAFT payment had to be credited. The landlord received $3,240 in RAFT funds, but the judgment was never reduced. The court ordered that correction on remand. The rest of the balance was not waived, though. By staying past August 31, the tenants broke the agreement, so the landlord no longer had to forgive the balance.
The $500 moving fee was reversed. The only support was an unsigned storage contract with a same day cancellation fee. Nothing showed the landlord signed it or actually paid the fee, so the court reversed that charge.
Lost property. The tenants said they lost belongings after the eviction. The court did not reach that claim because it was never raised in the Housing Court. A tenant with that kind of claim must first petition the court that heard the eviction. G.L. c. 239, § 4 (h).
What this means for you
An appeal does not freeze your obligations. If a judge or a single justice orders use and occupancy while your appeal is pending, paying it on time is what keeps the appeal alive. Here, two missed months ended the tenants’ right to have the possession judgment reviewed, and several of their other arguments were never decided.
Agreements for judgment are also binding court orders. If you agree to move by a date, staying past it can cost you more than possession. Here it meant losing a promised waiver of the rest of a $10,532 judgment.
There is good news too. A landlord must credit rental assistance it receives, and you should not be ordered to pay a landlord expense without proof the landlord had it.
What to do now
- Read every line of any agreement before you sign it, especially move out dates, payment terms and any waiver of appeal rights.
- If a court orders use and occupancy during an appeal, pay the full amount on time and keep proof of every payment.
- Track every RAFT or other assistance payment sent to your landlord, and make sure it shows up as a credit on the judgment.
- If a landlord asks the court to charge you for moving, storage or other costs, ask for proof that the cost was actually incurred.
- If your belongings were lost or mishandled after an eviction, raise that claim in the Housing Court that heard the case.
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.
