You may. The Supreme Judicial Court held that, where the requirements for issue preclusion are met, a Housing Court judge can order former owners to pay use and occupancy during an eviction case based on a Land Court judgment that someone else owns the property, even while that judgment is on appeal. This is a published decision of the Supreme Judicial Court and is binding statewide.
What happened
After a foreclosure sale of a home in Duxbury, the company that claimed to be the record owner sued the former owners in the Land Court. The Land Court ruled that the company held title and the former owners had no ownership interest, and the former owners appealed. The company then filed an eviction case in the Housing Court and asked that the former owners pay use and occupancy, money for the fair rental value of the home, while the case was pending. The Housing Court judge ordered the payments and, at the former owners’ request, paused the eviction case until the Land Court appeal was decided. A single justice of the Appeals Court twice set aside the payment orders, reasoning that ownership was not settled while the appeal was pending. The Supreme Judicial Court took the case on its own motion.
What the court decided
In TJR Services LLC v. Hutchinson, 495 Mass. 142 (2024), the court reversed the single justice and left the Housing Court’s payment order in place.
How the case got there. The former owners went to the single justice under G.L. c. 231, § 118, which lets a party ask an appellate court for relief from certain orders entered before a case ends.
The power to order payments. A judge hearing an eviction case may use the court’s equitable power to order an occupant to pay interim use and occupancy at the fair rental value while the case is pending. That power is subject to statutory and common law defenses and to procedural protections. Its purpose is to keep an occupant from living in a property without paying for it. The court noted that a former owner who stays after foreclosure is treated as a tenant at sufferance.
An appealed judgment still counts. Issue preclusion stops a party from relitigating an issue already decided against it in a final judgment between the same parties. The former owners argued the Land Court judgment was not final because they had appealed it. The court disagreed. It relied on O’Brien v. Hanover Ins. Co., 427 Mass. 194 (1998), which held that a trial court judgment is final and has preclusive effect even while it is on appeal. The court rejected the argument that O’Brien applied only to arbitration cases.
So the former owners could not reargue ownership in the Housing Court. The judge could rely on the Land Court judgment to order payments, including while the eviction case was paused at the former owners’ own request. The court also rejected the argument that the Land Court could not decide possession, because its judgment decided ownership, not possession.
The court noted that the Housing Court order required the company’s lawyer to hold the payments until the case ended, except for amounts used for property taxes and insurance.
Later history. In a later unpublished decision, the Appeals Court affirmed the Land Court judgment that the company owns the property. TJR Services, LLC v. Hutchinson, No. 23-P-456 (Mass. App. Ct. Feb. 28, 2025) (Rule 23.0 decision).
What this means for you
If you lost a case about who owns your home and you appealed, the appeal does not by itself stop the other side from relying on that judgment. Expect a request for use and occupancy payments if you stay in the home while the eviction case is pending. Asking the court to pause the eviction case while your appeal goes forward does not stop the judge from ordering payments.
You still have protections. The judge must set the amount, and the order here came only after a hearing at which both sides had lawyers. Defenses and procedural protections still apply. A judge can also decide whether payments go straight to the other side or are held until the case ends, as happened here.
What to do now
- If you appealed a judgment about ownership, assume it still counts against you while the appeal is pending.
- Plan for use and occupancy at the fair rental value of the home.
- Go to the hearing on the amount and bring evidence of rental value and the condition of the home.
- Ask the judge to have payments held until the case ends, rather than paid directly to the other side.
- Talk to a lawyer before you ask to pause the eviction case.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. Housing Court deadlines are short.
