On March 30, 2022, The Massachusetts Appeals Court held in 21st Mortgage Corporation v. Bruce Clark DeMustchine, MA. App. Ct. 21-P-489 (March 22, 2022) that the Housing Court and a single justice of the Appeals Court could impose a bond requirement or a use and occupancy payment requirement against a holdover occupant, where the occupant was not in sole possession of the premises, but shared it with his girlfriend. The Appeal Court determined that the obligation to post an appeal bond or to make use and occupancy payments arose when judgment for possession was entered against the individual occupant and the fact that another occupant, was identified preventing the owner from obtaining exclusive possession, did not prevent the owner from obtaining use and occupancy against the defendant-occupant.
The Plaintiff had taken title to the property through a mortgage foreclosure. The Defendant was the former owner of the property. The Plaintiff had failed to name the defendant’s girlfriend as an additional occupant in the summary process case. The Housing Court entered judgment against the defendant, but refused to extend the judgment to all other occupants, which would have included the girlfriend. An appeal was taken and plaintiff sought an appeal bond and use and occupancy payments, which the defendant opposed. Under certain circumstances, the appeal bond can be waived, but use and occupancy payments can be required while the appeal is pending. Such a requirement may be appealed to a single justice.
The Appeals Court upheld the single justices conclusion that post judgment use and occupancy payments were properly imposed and there was not requirements that the plaintiff be entitled to exclusive possession of the property. If the defendant wanted to maintain his appeal, he was required to make the use and occupancy payments.