Gratuitous Tenancies: A Conundrum Of Massachusetts Property Law

Issue May/June 2022 June 2022 By Ryan P. Avery
Real Estate Law Section Review
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Ryan P. Avery

The nightmare scenario of a friend, relative or ex-partner overstaying their rent-free welcome is dramatized in countless movies and many of our favorite childhood sitcoms. In real life, these uncomfortable situations are resolved without the need for legal process through a combination of common courtesy and common sense, if not infinite patience. Exceptions remain, however, as patience, resources and time wear thin. A property owner may be faced with a short deadline for selling, or making their premises suitable for occupancy. A tenant may need to remove their guest in order to avoid financial penalties (if not eviction) under their lease. 

If legal process is eventually required to eject a holdover guest, what form should that process take — summary process, as many may assume, or some other civil (or even criminal) proceeding?

These cases involve what our courts have referred to as “gratuitous tenancies,” and they live within a gray area of Massachusetts property law. Indeed, gratuitous tenants are typically no more than license holders to residential property, and the nomenclature designating them as some type of tenant sub-class only serves to complicate our understanding of their status. Additionally, the lawful process for ejecting gratuitous tenants from residential premises is far from clear, and requires confirmation by our Appeals Court or the Supreme Judicial Court (SJC). 

To understand the status of a gratuitous tenant, it is first important to reacquaint ourselves with the defining features of the landlord-tenant relationship. The relationship between landlord and tenant is a contractual one in which the owner of real estate agrees to grant to the tenant, for a definite or indefinite period of time, the right to exclusive possession of real estate in exchange for the tenant’s payment of an agreed-upon consideration, usually in the form of periodic rent. In contrast, a license merely excuses acts done by one on land in possession of another that without the license would constitute a trespass.2 A license conveys no interest in the land and need not be entered into by contract or supported by consideration.3  

As suggested above, gratuitous tenancies are not grounded in contract. They involve guest-occupants who initially enter the premises peaceably with permission of one with a right to possession, in order to reside at the premises for a typically unspecified period of time, without the payment of rent or any other consideration. The lack of consideration and the occupant’s lack of any right to exclusive possession are the hallmark features of a gratuitous tenancy.4 Not surprisingly, these relationships are most commonly developed between close friends, relatives and unmarried co-habitants.5  

The term “gratuitous tenant” is therefore a misnomer — “expired license holder,” “unlawful occupant” or “holdover guest” would all constitute a more accurate description. The point here is that once a license to occupy has been revoked — and it may be revoked at any time — the status of a gratuitous tenant becomes indistinguishable from a trespasser under common law.  

Understandably, the Massachusetts Legislature has determined that the ejection of any person from residential premises, irrespective of their status, should be accomplished through considered legal proceedings, without haste or resort to force. Critically, the commonwealth’s criminal trespass statute (M.G.L. c. 266 § 120) permitting arrest and removal of trespassers by sheriff, deputy sheriff, constable or police officer does not apply to “tenants or occupants of residential premises who, having rightfully entered said premises at the commencement of the tenancy or occupancy, remain therein after such tenancy or occupancy has been or is alleged to have been terminated … The owner or landlord of said premises may recover possession thereof only through appropriate civil proceedings.” 

The starting point for what “appropriate civil proceedings” may involve is found at Section 18 of Massachusetts General Laws Chapter 184, stating that “no person shall attempt to recover possession of land or tenements in any manner other than through an action brought pursuant to chapter two hundred and thirty-nine or such other proceedings authorized by law.” Notably, this language does not restrict itself to recovery of land or tenements from tenants. Likewise, Section 1 of Chapter 239 sets forth that summary process may be used to recover possession against both a tenant (“lessee of land or tenements”) and any “person holding [possession] under him … without right after the determination of a lease by its own limitation or by notice to quit or otherwise…” Similar language in Section 1 applies to sellers of real estate (including sellers in foreclosure) and persons holding under them who refuse to surrender the real estate to a buyer. Summary process may also be commenced against any occupant who has made a “forcible entry” as well as any occupant who makes a “peaceable entry,” but whose actual possession is “unlawfully held by force” thereafter. 

Although the scope of Section 1 is undeniably broad, “summary process is a purely statutory procedure and can be maintained only in the instances specifically provided for in the statute.” Indeed, the SJC has recognized that “not every entitlement to possession against an occupant may be the subject of summary process.”6 Suits to eject tenants by the entirety and tenants-in-common are two examples of suits for possession to which our appellate courts have ruled that summary process does not apply. 

Does the ejection of a truly gratuitous “tenant” require the commencement of summary process proceedings? Parties to the reported decisions involving gratuitous tenancies in Massachusetts appear to have believed so, as nearly all of these decisions arise out of summary process proceedings in the Trial Court.8 Unfortunately, the applicable holdings from these cases do not create a cohesive logic for requiring (or even permitting) summary process in the case of gratuitous tenants. 

As discussed above, the statutory language of c. 239 § 1 contemplates several scenarios in which a non-lessee may be subject to summary process. The first is when the non-lessee is a “person holding under a lessee without right after the determination of a lease by its own limitation or by notice to quit or otherwise.” A plain reading of this clause does not readily indicate whether the term “person holding under a lessee” is limited to a sub-lessee, or whether this clause also applies to long-term guests and licensees. However, our Appeals Court appeared to answer this question definitively in United Co. v. Meehan, 47 Mass. App. Ct. 315 (1999), where the court held that “a landlord need not bring a summary process action against a person whose status is only as a guest or visitor of a tenant,” and affirmed the Housing Court’s dismissal of a landlord’s direct action for possession against the unauthorized occupant of its tenant (the court in Meehan also affirmed the Housing Court’s award of possession to the landlord against the tenant through whom the gratuitous tenant came into possession of the premises, with the court reasoning that an order to vacate against the tenant necessarily included the removal of any of the tenant’s guests).9  

Section 1 of c. 239 also requires that summary process be utilized in cases involving forcible initial entry as well as cases in which the possession is “unlawfully held by force.” However, case law as to the definition of “force” in this context is clear (albeit sparse) that actual force or threat of force is necessary to invoke summary process; a “mere refusal to leave does not constitute forcible detainer.”10 

When read in conjunction, the precedent summarized above suggests that the only proper civil remedy for ejecting a truly gratuitous tenant who does not use or threaten force is to seek equitable relief under a common-law theory of trespass. Although it is clear that property owners pursued the ejection of gratuitous tenants via summary process in at least a handful of cases after Meehan,11 it is difficult to see how any of these actions could have survived a dispositive motion for failure to state a claim under Chapter 239. Moreover, the mere fact that these cases were litigated through summary process without objection did not serve as legal authority for the use of summary process in such matters, as the Appellate Division of our District Court Department expressly noted in Nealon v. Johnson, 2013 Mass. App. Div. 38, before vacating the lower court’s judgment awarding possession on summary process:

No party litigated the question of statutory jurisdiction under M.G.L. c. 239, § 1. That implicit ruling was nothing more than the “law of the case … [w]here a legal ruling is merely assumed or implied but not litigated in one case, that ruling is not authority in another case.” Metivier v. Liberty Mut. Ins. Co., 1999 Mass. App. Div. 88, 89 n. 3, citing Nash v. Lang, 268 Mass. 407, 411 (1929), and Vigeant v. Postal Tel. Cable Co., 260 Mass. 335, 343–344 (1927).

The seeming consensus (at least among our appellate courts) as to the inapplicability of summary process to suits involving gratuitous tenants was thrown for a loop by the unpublished Appeals Court decision of Thorup v. Hodges, 94 Mass. App. Ct. 1103 (2018). The plaintiff in Thorup allowed the defendant — an aspiring female screenwriter whom the plaintiff “quickly befriended” — to reside in his single-family home while he completed a teaching assignment overseas. The defendant paid no rent or utilities, and in fact received a small stipend from the plaintiff to take care of the residence. Although the appellate panel in Thorup did not disturb the Housing Court’s finding as to the defendant’s status as a “guest” or “licensee,” it nevertheless rejected the defendant’s argument that the plaintiff lacked standing12 to bring a summary process action under Chapter 239 § 1, characterizing the difference between tenants and licensees as a matter of “semantics.” 

To add to the confusion, the panel in Thorup explicitly acknowledged the SJC’s pronouncement that “not every entitlement to possession against an occupant may be the subject of summary process” but subsequently held, just sentences later, that summary process was proper in the case at bar because the complaint alleged “possession of premises wrongfully [though apparently not forcibly] withheld.” At the very least, this holding appears to be impermissibly broad given the Appeals Court’s previous rejection of summary process as an appropriate method for removing the guest of a tenant in Meehan, as well as the SJC’s prior ruling against the use of summary process to effectuate repossession by one tenant by the entirety against the other.13 

Unquestionably, both Meehan and the SJC cases cited throughout this article control over Thorup to the extent any conflict exists between them (as appears to be the case).14 Nevertheless, Thorup’s persuasive appeal may exceed and eventually overshadow its limited authority, particularly in light of the panel’s stated concern that disavowing summary process in the cases of gratuitous tenancies “would tend to frustrate the significant public policy considerations undergirding statutes prohibiting or limiting the use of self-help measures to secure possession of real property.” On its face, this argument is a compelling one, especially as eviction moratoriums and COVID-19 housing assistance programs expire across the state. At the same time, there is no authority in Massachusetts to support the proposition that self-help is permitted in any residential context, as such action is almost assuredly prohibited by c. 184 s. 18; nor did the defendant in Thorup appear to argue in support of her own eviction through self-help.

Whether or not summary process should be the exclusive remedy for ejection of all wrongful possessors, however, is largely irrelevant for purposes of this article. The point here is that clarifying the correct process for ejecting truly gratuitous tenants — summary process or injunctive relief pursued through the regular civil docket — is important and necessary. Nor is this discussion an academic one: as the SJC recognized over 20 years ago, summary process is the exclusive means of recovering possession from those particular occupants identified in Chapter 239, barring any other form of equitable relief.15 

Parties who file suit against truly gratuitous tenants are typically seeking to extricate themselves, as speedily as possible, from unfair if not abusive relationships that are non-commercial in nature. Presently, however, our case law is muddled as to the proper course for such litigation, with reasonable arguments available to support the dismissal of both a summary process action and a common-law action seeking equitable relief (that is, ejection). No plaintiff wants to be in the same position as the landlord in Nealon, supra — successfully recovering a judgment of possession only to learn that the procedure utilized to obtain that judgment was invalid. Unfortunately, each case involving “guests in tenants’ clothing” may be the next Nealon until the status (if any) of gratuitous tenants under Chapter 239 is clarified by our appellate courts. 

Ryan P. Avery is a partner at Mirageas & Avery in Milford and presently serves as co-chair of the Massachusetts Bar Association’s Real Estate Law Section Council. He has successfully tried jury and jury-waived cases involving residential and commercial lease disputes, construction contracts, contested boundary lines, and claims for trespass, nuisance, adverse possession, and prescriptive easement rights.

1. Belizaire v. Furr, 88 Mass. App. Ct. 299, 303 (2015) (“There are two essential requirements for the creation of such a tenancy: first, a contractual agreement between the landlord and the tenant, and second, that the tenant exclusively occupy the premises.”).

2. See Baseball Publishing Co. v. Bruton, 302 Mass. 54, 55 (1938).

3. See id.

4. See Belizaire, 88 Mass. App. Ct. at 303; see also Lavelle v. Lavelle, 2012 Mass. App. Div. 150 (any tenancy was of a “gratuitous nature” given the lack of any consideration or right to exclusive possession).

5. See generally Belizaire, 88 Mass. App. Ct. 299 (close family friend determined to be gratuitous tenant); Lavelle, 2012 Mass. App. Div. 150 (action between mother and son who was initially permitted to reside at premises); Aloisi v. Kelly, 2009 Mass. App. Div. 207 (daughter who continued to live on property after father’s death).

6. See Fafard v. Lincoln Pharmacy of Milford, Inc., 439 Mass. 512, 514–515 (2003) (counterclaims may not be brought in commercial summary process action, as statute does not authorize them) (citing Cummings v. Wajda, 325 Mass. 242, 243 (1950)).

7. See id. (statute does not authorize summary process by lessee of one joint tenant by the entirety against the other); Nealon v. Johnson, 2013 Mass. App. Div. 38 (Land Court commissioner’s summary process action against tenant-in-common not permitted under 239 § 1). Presumably, the proper remedy in both Cummings and Nealon was a civil action for ouster and/or partition filed in a court of competent jurisdiction.

8. See generally United Co. v. Meehan, 47 Mass. App. Ct. 315 (1999); Thorup v. Hodges, 94 Mass. App. Ct. 1103 (2018) (unpublished Rule 23.0 decision); Aloisi, supra note 5; Lavelle, supra note 2; but see Rinaldo v. Haynes, 2006 WL 1330861, Worcester Superior Court No. 2006-0286 (March 24, 2006) (plaintiffs pursued repossession via injunction pursuant to M.G.L. c. 184 § 18).

9. 47 Mass. App. Ct. at 320. Given the nearly identical language in c. 239 § 1 applicable to “persons holding under” sellers of real estate, the above holding from Meehan could easily be extended to the removal of a seller’s guest who refuses to vacate following sale.

10. Nealon, 2013 Mass. App. Div. 38 at note 7 (citing Kiernan v. Linnehan, 151 Mass. 543, 547 (1890)).

11. See supra note 8.

12. Although the plaintiff’s standing under Chapter 239 may certainly be challenged, it is the defendant’s status as a non-lessee that appears to be problematic in both Meehan and Thorup. Whether the issue is viewed as a lack of standing or the plaintiff’s failure to state some other element of the statutory claim under Chapter 239 does not appear to be a meaningful distinction in such cases.

13. See Cummings, 325 Mass. at 243. Thorup similarly calls into question the Appellate Division’s ruling in Nealon, 2013 Mass. App. Div. 38 (prohibiting the use of summary process to eject a tenant-in-common).

14. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008) (a summary decision pursuant to rule 23.0 or rule 1:28 issued after Feb. 25, 2008, may be cited for its persuasive value, not as binding precedent).

15. Atty Gen. v. Dime Sav. Bank of New York, FSB, 413 Mass. 284, note 10 (1992) citing Weiss v. Levy, 166 Mass. 290, 293 (1896) (no equitable relief available at common law in cases to which summary process applies, as summary process offers “a plain, adequate, and complete remedy at law”).