Tyrone Walker v. Juliane Pierre.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-172

TYRONE WALKER

vs.

JULIANE PIERRE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In Adjartey v. Central Div. of the Hous. Court Dep't, 481

Mass. 830 (2019), the Supreme Judicial Court stated that "[a]

tenant is entitled to actual receipt of the notice to quit

within the time prescribed and before an eviction action is

brought" (quotation omitted). Id. at 850. Here, invoking this

principle, the tenant, Juliane Pierre, appeals from a Housing

Court summary process judgment obtained by the landlord and

property owner, Tyrone Walker. Because at trial the tenant

contested receipt of the notice to quit, yet the judge made no

finding regarding whether she actually received it, the tenant

argues that the judge erred in nevertheless concluding that the

landlord had proved his case and was entitled to judgment for

possession. We vacate the judgment and remand the case for

further proceedings.
 Background. We recite the procedural background along with

those facts found by the judge that are essential to

understanding the issues on appeal.1 The tenant resides at an

apartment in a multiunit dwelling owned by the landlord in the

Mattapan section of Boston. The landlord and the tenant had

previously been in an "ongoing relationship" and have two

teenaged children together, but it appears that their

relationship had ended sometime before trial. There was

undisputed evidence that the landlord had previously lived with

the tenant but that he had moved out and that the tenant had

obtained a restraining order and an order for child support

against him. The parties had no agreement with respect to rent,

nor did the tenant owe any rent. The landlord paid the

mortgage, and the tenant paid for electricity, gas, cable,

internet, and -- until March 2019 -- water.

The landlord entered this summary process action on March

9, 2020, by filing a summons and complaint. Accompanying the

1 Most of the judge's written findings are phrased as statements
of how a particular witness had testified, followed by a
statement that the judge found that witness's testimony on
particular topics credible. Compare Commonwealth v. Garner, 490
Mass. 90, 94 (2022) ("A statement generally crediting witness
testimony is not the same as making factual deductions based on
the evidence presented"). For convenience, we refer to these
simply as findings, except where the distinction between
credited evidence and findings is significant to the issues on
appeal.

2
summons and complaint was a copy of a notice to quit, addressed

to the tenant and dated January 8, 2020, purporting to terminate

her tenancy on February 29, 2020. The notice bore a constable's

return of service, also dated January 8, 2020. The return

stated that the constable had made service by leaving the

original notice at the apartment address in Mattapan and by

sending a copy of the notice by first class mail, postage

prepaid, to the same address. The tenant did not file an

answer.

At trial, on December 4, 2020, both parties were self-

represented. The judge began by noting that the trial had

commenced a few days earlier but had been continued to allow the

landlord to introduce the testimony of the constable. The

constable then testified that on the day in question, he had

gone to the premises and knocked on the door. There being no

answer, he had left the notice to quit under the door and then

mailed a copy to the tenant at the same address by first class

mail, postage prepaid, but not by certified mail.

During the tenant's questioning of the constable, the

tenant stated that she had not received the notice to quit,

whereupon the judge stated, "I'm striking that testimony. I'm

happy to hear your testimony when it is your turn to testify."

The tenant did not return to the issue during her own testimony.

The judge's findings nevertheless state that the tenant

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"testified that she did not receive a [n]otice [t]o [q]uit."

The findings further state that the judge credited the

constable's testimony with respect to the notice to quit and

credited the parties' testimony with respect to the remaining

issues.2 The judge then "f[ound] that, on January 8, 2020, the

[landlord] served the [tenant] with a legally sufficient 30

[d]ay [n]otice [t]o [t]erminate [t]enancy, and . . . that the

[landlord] has established his prima facie case for possession

of the premises, plus costs."

The judge, however, having identified an additional issue,

did not immediately decide the merits of the case.

Specifically, the tenant had testified that, while the landlord

was in jail in 2009, "we purchased the house." "[I]t was always

ours; for us and the kids. . . . I trusted him. . . . I took

care of everything. I worked. Whatever needs to be done for

the house was done without any issues. Our issues started after

the house was completed," including being renovated and

deleaded. The tenant's testimony also suggested that her mother

had played some role in the purchase of the premises, but the

mother "ended up signing off the house to [the landlord]" and

was "force[d] . . . to move out." The tenant asked the judge to

2 These credibility findings did not resolve the matter of actual
receipt, because the constable did not and could not testify to
actual receipt, and because the judge did not state that she did
not credit the tenant's statement of nonreceipt.

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order the landlord to refinance the premises and to pay half of

its value to her.

Based on this testimony, the judge "f[ound] that the

[tenant] has raised an issue at trial with respect to the

division of the value of the premises, and finds that this issue

is one that must be resolved by the Probate and Family Court

Department." The judge therefore stayed the action, pending a

further hearing to be held sixty days later, "to allow the

[tenant] to file the appropriate action" in the Probate and

Family Court. The judge stated that if the tenant "does not

file said action timely," the judge would "make a decision on

the merits of this case following the expiration of the stay."

The further hearing was continued several times and was

ultimately held about ninety days later. At that hearing, the

tenant testified that she had spoken to various persons at the

Probate and Family Court, who had given her various forms to

fill out, as well the telephone number of a legal services

office and other information, but who ultimately were unsure of

how to help her. She further testified that a Housing Court

supervisor had told her that if she was not getting enough child

support, she could file a form in Probate and Family Court, but

the supervisor (understandably) could not advise her what to do.

The tenant had told the supervisor that what she "mostly care[d]

to file is the action for equity -- you told me equity property

5
form. And that's not it. They said they'd never heard [of]

that form before . . . from any judge at all." The tenant

further testified that she could not afford a lawyer.

The judge then stated that although she had postponed a

final decision "several times in order to give [the tenant] an

opportunity to raise the issues that [she] had raised at trial

. . . [n]othing more has happened. All I can do at this point

is to take the summary process case that is before me back under

advisement." The judge then reissued the original findings and

conclusions (discussed supra) along with a finding that the

tenant "has failed to take any action to litigate her claims

with respect to the division of the value of the premises in the

Probate and Family Court Department. Accordingly . . . the

[landlord] has established his case for possession of the

premises, plus costs." The judge ordered judgment for the

landlord. The tenant's motion for reconsideration was denied,

and this appeal followed.

Discussion. On appeal, the tenant makes two main

arguments, the first related to whether she received the notice

to quit, and the second concerning what she characterizes as her

equitable defense to awarding possession to the landlord. We

address these in order.

1. Notice to quit. As stated at the outset, "[a] tenant

is entitled to actual receipt of the notice to quit within the

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time prescribed and before an eviction action is brought"

(quotation omitted). Adjartey, 481 Mass. at 850. "It is the

landlord's burden to 'show that [it] gave a notice which

complied with the statute. The statute does not proscribe how

notice is to be given.' . . . It is nonetheless evident that a

notice taped to a door is not 'given to the tenant,' until the

tenant receives actual or constructive notice of it." Youghal,

LLC v. Entwistle, 484 Mass. 1019, 1022 (2020), quoting Ryan v.

Sylvester, 358 Mass. 18, 19 (1970).3 "[A] legally adequate

notice to quit is not jurisdictional but rather [is] a condition

precedent to a summary process action that is part of the

landlord's prima facie case." Cambridge St. Realty, LLC v.

Stewart, 481 Mass. 121, 127 (2018). Where a tenant does not

actually or constructively receive (or timely receive) the

notice to quit, "the summary process complaint must be

dismissed." Youghal, supra at 1022.

3 The statute at issue in Youghal was G. L. c. 186, § 11
(providing that fourteen-day notice to quit be "given in writing
[by the landlord] to the tenant" to "determine" the lease).
Youghal, 484 Mass. at 1022. The statute at issue in Ryan was
G. L. c. 186, § 12 ("Estates at will may be determined by either
party by three months' notice in writing for that purpose given
to the other party; and, if the rent reserved is payable at
periods of less than three months, the time of such notice shall
be sufficient if it is equal to the interval between the days of
payment or thirty days, whichever is longer"). See Ryan, 358
Mass. at 19. See also G. L. c. 186, § 12.

7
 Here, there was no evidence or finding that the tenant had

received constructive notice of the notice to quit, as that term

has been construed in landlord-tenant cases,4 and so we focus on

the question of actual receipt. The constable's return stated

that he had left the notice to quit at the premises and had

mailed a copy of it to the tenant at the premises, first class,

postage prepaid. But that return was merely "prima facie

evidence of the facts stated in it." Ryan, 358 Mass. at 20,

citing Coghlan v. White, 236 Mass. 165, 169 (1920). It said

nothing about whether the tenant had actually received the

notice.5 The constable's trial testimony added only that he had

not sent the copy of the notice by certified mail.

The tenant, for her part, stated that she had not received

the notice. Although the judge struck this testimony, the judge

4 Ryan reviewed prior decisions concluding that constructive
notice included leaving notice on the premises with "some
coresident with the tenant," including the tenant's spouse, a
partner in charge, or a tenant in common. Ryan, 358 Mass. at
20. Ryan also reviewed decisions in which claims of
constructive notice were rejected. See id. at 20-21. Nothing
in our decision should be understood as identifying the outer
bounds of what constitutes constructive notice.

5 This manner of providing the notice to quit would, if used to
serve a summary process summons and complaint, comply with Rule
2 (b) of the Uniform Summary Process Rules (1993). But that
rule on its face does not govern provision of the notice to
quit, nor do the relevant statutes give much guidance. See note
3 supra. Under a separate statute, any lease or agreement by
which a residential tenant purports to waive provision of a
statutorily required notice to quit is "deemed to be against
public policy and void." G. L. c. 186, § 15A.

8
later found the tenant to have "testified that she did not

receive" the notice. Accordingly, although the judge made a

"find[ing] that . . . the [landlord] served the [tenant] with a

legally sufficient" notice to quit, and a further finding that

the landlord had "established his case for possession," we do

not understand the judge to have made a finding on actual

receipt of the notice to quit.

To be sure, the judge could have made such a finding on

this record. "Proper mailing of a letter is prima facie

evidence of receipt by the addressee." Commonwealth v. Koney,

421 Mass. 295, 303–304 (1995), citing Commonwealth v. Crosscup,

369 Mass. 228, 239 (1975). If this evidence were unrebutted, a

finding of receipt would be permissible, although not required.

See Crosscup, supra at 240. But as "soon as evidence is

introduced that warrants a finding that the letter failed to

reach its destination, the artificial compelling force of the

prima facie evidence disappears, and the evidence of non-

delivery has to be weighed against the likelihood that the mail

service was efficient in the particular instance, with no

artificial weight on either side of the balance." Hobart-

Farrell Plumbing & Heating Co. v. Klayman, 302 Mass. 508, 510

(1939). This is "a pure question of fact." Id.

In sum, because the evidentiary status of the tenant's

statement of nonreceipt is unclear, and because there was no

9
express finding regarding actual receipt, the case must be

remanded for further findings.

The tenant contends that even if she were found to have

received the notice to quit, it was insufficient. Her argument

is that because she was a tenant at will, yet with no obligation

to pay rent (let alone to do so "at periods of less than three

months"), she was entitled by G. L. c. 186, § 12, to a three-

month notice to quit, which the notice at issue here did not

purport to be. We decline to address this argument, because, as

we are about to discuss, the exact nature of her tenancy has not

been resolved. On remand, the judge may, if necessary, make

further findings on this issue.6

We decline the landlord's suggestion that we affirm the

judgment on the alternative ground that the tenant was a mere

tenant at sufferance and therefore was not entitled to any

notice to quit. See Gabbidon v. King, 414 Mass. 685, 686 (1993)

(appellate court may affirm on "any ground apparent on the

record"). "At common law a tenant at sufferance is entitled to

6 The tenant gains nothing, however, from her additional argument
that the landlord, having relied on a notice to quit purporting
to terminate her tenancy, cannot now assert that there was no
tenancy. See Adjartey, 481 Mass. at 852, citing Strycharski v.
Spillane, 320 Mass. 382, 384-385 (1946) ("The basis for the
landlord's eviction action is limited to the reasons for
eviction provided in the notice to quit"). We do not understand
the landlord to assert that there was no tenancy, nor did the
notice to quit specify any particular type of tenancy.

10
no notice of the termination of that status before the landlord

moves against him to obtain possession."7 Rubin v. Prescott, 362

Mass. 281, 284 (1972). More recently, however, we have

recognized that "[a] tenant at sufferance . . . is entitled to

some form of notice of the intent to secure possession of the

premises prior to the commencement of a summary process action

to allow [the tenant] enough time to vacate" (quotation

omitted). Bank of N.Y. Mellon v. Morin, 96 Mass. App. Ct. 503,

514 (2019). Moreover, the question whether a tenancy is at

sufferance or at will is commonly one of fact. See Staples v.

Collins, 321 Mass. 449, 451 (1947); Moskow v. Robinson, 276

Mass. 16, 18-19 (1931). The judge was not asked to and did not

make findings on this issue, nor may we resolve the question

ourselves in the first instance.8 Thus, because it is not

7 If the tenancy at sufferance resulted from the termination by
operation of law of a prior tenancy at will, then, under G. L.
c. 186, § 13, the landlord may not bring an action to recover
possession without first giving notice of the termination of the
tenancy at will, the notice period being determined in
accordance with the statute. See Rubin v. Prescott, 362 Mass.
281, 284 (1972).

8 In particular, "[t]he relation of landlord and tenant arises
out of an agreement, express or implied, by which one enters
upon and continues in the occupancy of the premises of another
for a consideration." Story v. Lyon Realty Corp., 308 Mass. 66,
69–70 (1941). Such consideration is "usually in the form of
rental payable in money, yet any consideration sufficient to
support a contract is all that is required." Id. at 70. See
Belizaire v. Furr, 88 Mass. App. Ct. 299, 303 (2015) (similar,
regarding tenancy at will). And "a tenancy at sufferance is
readily changed into a tenancy at will by express or implied

11
"apparent on the record" that the tenant was a tenant at

sufferance, we decline to affirm on the basis that she was not

entitled to any notice to quit.9 Gabbidon, 414 Mass. at 686.

2. Tenant's claimed equitable defense. The tenant argues

that the judge -- once she recognized that the tenant had

"raised an issue at trial with respect to the division of the

value of the premises" -- should not have directed the tenant to

raise that issue in the Probate and Family Court but instead

should have resolved it within the summary process action. The

tenant invokes the principle that "[w]here the affirmative

defenses or counterclaims challenge the right to possession, the

agreement of the parties." Staples, 321 Mass. at 451. See
Moskow, 276 Mass. at 18. There was evidence here from which the
judge could have found at least an implied agreement for the
tenant to occupy the premises, supported by consideration such
as the tenant's payment of bills for water, electricity, and
gas, which are ordinarily a landlord's responsibility absent
written agreement otherwise. See G. L. c. 186, § 22; 105 Code
Mass. Regs. § 410.354 (2007).

9 The landlord also suggests that because the parties never
reached any agreement as to consideration, the tenancy was
merely a "gratuitous tenancy." Even if this argument did not
present unresolved questions of fact, see note 8, supra, we note
that in the case the landlord relies upon, West v. First Agric.
Bank, 382 Mass. 534 (1981), the court concluded that "a
fourteen-day notice under G. L. c. 186, § 12, to vacate for
nonpayment of rent" was "adequate to terminate immediately a
gratuitous tenancy." Id. at 538, 542. West thus does not stand
for the proposition the landlord wishes it to, that no notice is
necessary to terminate a gratuitous tenancy (however that term
may be defined).

12
judge must resolve those claims as part of the summary process

action." Federal Nat'l Mtge. Ass'n v. Rego, 474 Mass. 329, 339

(2016), citing Bank of Am., N.A. v. Rosa, 466 Mass. 613, 624-625

(2013).

Here, it is quite unclear that the tenant raised any

defense or counterclaim to challenge the landlord's right to

possession. The nature of the defense or counterclaim the

tenant sought to assert, and whether it is one within the

jurisdiction of the Housing Court, was also, and remains,

unclear.10 Nevertheless, the judge, by staying her decision to

allow the tenant to seek relief in Probate and Family Court,

recognized that the tenant had raised an issue worthy of

10The tenant did not file an answer, where any defenses and
counterclaims should have been asserted. To be sure, in summary
process cases "the right to assert affirmative defenses is not
waived when an answer is not filed." Morse v. Ortiz-Vazquez, 99
Mass. App. Ct. 474, 481 (2021). But here, even at trial,
although the tenant testified that she "took care of
everything," she did not, for example, expressly claim to own
any part of the premises, to have contributed to the purchase
price, to have made mortgage payments, or to have paid for
improvements. Nor did she assert that the landlord is anything
other than the sole legal owner of the apartment and the
building in which it is situated. On appeal, the tenant argues
that she asserted a claim for a constructive trust. See Cavadi
v. DeYeso, 458 Mass. 615, 627 (2011); Sullivan v. Rooney, 404
Mass. 160, 163 (1989). But her unfocused testimony at trial
gave little hint of such a claim. The judge's reference to a
possible "division of the value of the premises" may have been a
reference to a claim for partition, which, under G. L. c. 241,
§ 2, would be within the concurrent jurisdiction of the Probate
and Family Court and the Land Court. We imply no view on
whether it might also be within the jurisdiction of the Housing
Court under G. L. c. 185C, § 3.

13
consideration. Moreover, a remand on the notice to quit issue

is necessary in any event.

Although we recognize the difficulty the judge faced here,

we think the appropriate resolution is to order further

consideration on remand of the tenant's request that the value

of the property be divided. The judge should address whether

the tenant made out a claim or defense that affects the

landlord's right to possession or otherwise warrants relief

within the Housing Court's jurisdiction. As the tenant already

had the opportunity to present evidence in support of her

request, it may be sufficient for the judge to make further

findings or rulings, but the judge in her discretion may take

further evidence on the issue.

Conclusion. The judgment and the order on the motion for

reconsideration are vacated and the case is remanded for further

proceedings consistent with this memorandum and order.

So ordered.

By the Court (Sacks, Singh &
Brennan, JJ.11),

Clerk.

Entered: March 10, 2023.

11 The panelists are listed in order of seniority.

14