A judge erred in finding tenants out of compliance with a use and occupancy order just because they tried to pay by credit card, when the order did not specify a payment method and the landlord had accepted that method before. But that error will not save your appeal if you are later given a fair second chance to pay and still do not pay. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.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 tenants lived in a hotel room, and the landlord sued to evict them for unpaid rent. After a trial in March 2023, the Housing Court entered judgment for the landlord for possession and unpaid rent. The tenants appealed. A single justice of the Appeals Court waived the appeal bond and set daily use and occupancy payments, with set due dates, but did not say how payment had to be made. On the extended due date, the tenants went to the front desk to arrange payment by a relative’s credit card. The landlord had accepted third party credit card payments in the past. The landlord did not send the payment link, and no payment was made. The Housing Court judge dismissed the appeal, ruling that a credit card offer was not “good funds.” A single justice later gave the tenants another chance to pay, by cashier’s check, money order or credit card, but no payment was made by that deadline and the tenants were evicted.
What the court decided
In Chatham Lodging v. Eduardo, No. 24-P-457 (Mass. App. Ct. April 29, 2025) (Rule 23.0 decision), the Appeals Court affirmed the dismissal, but it agreed with the tenants on an important point.
The court explained the rules. A tenant who appeals an eviction judgment and stays in the home may be required to post a bond or make use and occupancy payments while the appeal is pending. G.L. c. 239, § 5(c). If the tenant does not pay as ordered, the appeal may be dismissed. 21st Mtge. Corp. v. DeMustchine, 100 Mass. App. Ct. 792 (2022); Adjartey v. Central Div. of the Hous. Court Dep’t, 481 Mass. 830 (2019).
The court then held the Housing Court judge was wrong. The single justice’s order did not specify a method of payment, and the landlord had accepted credit card payments before. So it was error to find the tenants out of compliance simply because they tried to pay by credit card.
But an error only matters if it could have changed the result. The tenants had to make a plausible showing that the outcome might have been different. DeJesus v. Yogel, 404 Mass. 44 (1989). They could not. A single justice later gave them a new deadline and allowed several methods of payment, including third party credit cards. They did not pay. Even if the judge had accepted their credit card attempt, the appeal would have been dismissed for the later nonpayment.
The court also reviewed the hearing transcript and rejected the claim that the judge was biased. The judge was entitled to redirect the self-represented tenants and did so respectfully.
What this means for you
Use and occupancy orders are strict. If you appeal an eviction and want to stay in your home, paying on time is often what keeps your appeal alive. This decision gives tenants one useful point: when an order does not say how you must pay, a judge should not find you out of compliance just because you tried a method the landlord has accepted before.
The bigger lesson is the trap. Winning the argument about the first payment did not help, because the tenants missed the second chance. When a court gives you a new deadline and lists acceptable ways to pay, use one of them, early, and keep proof.
What to do now
- Read your use and occupancy order closely for the amount, due date, payment method and any time cutoff.
- If the order is unclear, ask the court to clarify how and where to pay before the due date.
- Pay by a method that creates proof, such as a money order or bank check, and keep copies and receipts.
- If the landlord refuses or blocks your payment, put your attempt in writing that same day and tell the court promptly.
- Never let a dispute over the first payment cause you to miss a later deadline.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. Housing Court deadlines are short.
