HEIDI A. ROSE, Trustee v. TANYA SANTOS & Others.

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

24-P-250

HEIDI A. ROSE, trustee,1

vs.

TANYA SANTOS & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a summary process bench trial in the Housing

Court, judgment entered awarding possession of the premises to

the defendants, Tanya Santos and David Gomes,3 subject to certain

conditions, and damages to the plaintiff trustee, Heidi A. Rose.

Rose filed a motion for reconsideration pursuant to Mass. R.

Civ. P. 59 (e), 365 Mass. 827 (1974), which the judge denied

after a hearing. Rose appeals from the denial of the motion.

We affirm.

1 Of the Testamentary Trust of August L. Santos.

2Shanice Orrico and David Gomes. Orrico was dismissed from
the summary process action by agreement of the parties.

3The defendants declined to file a brief and did not
otherwise participate in this appeal.
Background. Rose's and Santos's father, August L. Santos,

died testate in July 2022, leaving a home in a testamentary

trust to Rose, as trustee, subject to the right of Santos to

live there so long as she pays "all of the taxes, insurance,

bills[,] expenses and utilities" owed on the home and $500 per

month in rent to Rose. The trust further provides that in the

event Santos does not fulfill these obligations, Rose is

authorized to sell the house. The trust does not contain any

further due dates for the monthly rental payments, nor does it

specify when and how the insurance, taxes, and utilities are to

be paid.

On May 26, 2023, Rose served the defendants4 with a no-

cause, ninety-day notice to quit seeking to terminate the at-

will tenancy. When the defendants failed to vacate, Rose filed

a summary process complaint seeking possession. The defendants

did not file an answer or counterclaims but did appear for

trial. At the trial on October 30, 2023, Rose testified that

the defendants owed rent for the month of October 2023. At the

judge's suggestion, Rose made an oral motion to amend the

complaint to claim $500 in rent arrearage, which the judge

allowed. Rose further testified, and the judge credited her

4 Gomes is Santos's boyfriend; he is not a beneficiary of
the trust but resides with Santos in the home.

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testimony, that she had paid delinquent tax and insurance bills

that had become due on the home after her father's death and

while Santos was living there.5 The judge allowed Rose's second

oral motion to amend the complaint to reflect these payments.

Santos then testified, and the judge credited her testimony,

that she did not receive the tax and insurance invoices in a

timely manner because they were sent to a third sister at a

different address and the sisters were not in communication.

The judge entered findings of fact, rulings of law, and an

order for judgment, concluding that Santos had paid the

utilities but owed October 2023 rent, and that Rose had advanced

the taxes and insurance payments owed on the home. The judge

awarded possession to the defendants, on the condition that they

make all rental payments no later than the fifth of each month,

tax payments within thirty days of receiving the invoice,

insurance payments within the time provided by the insurance

contract, and utility payments in a timely manner. He also

5 Rose testified that she received a cancellation notice of
the homeowner's insurance policy for nonpayment dated April 4,
2023. Following the cancellation, she paid $310 on June 28,
2023, to initiate a new policy that covered the premiums due for
July 2023 and August 2023. Rose then paid $121.08 on August 30,
2023, to cover the amounts owed for September 2023, and made two
payments of $144.08 each to cover October 2023 and November
2023. Rose further testified that she contacted the town to
ascertain whether the property taxes had been paid, and on
learning that they had not, she paid $909.73 on May 2, 2023, and
$858.34 on August 14, 2023.

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awarded damages to Rose, as reimbursement for the tax and

insurance payments, to be paid no later than January 30, 2024.

Rose filed a motion for reconsideration, which the judge denied

after a hearing. This appeal followed.

Discussion. Rose appeals from the denial of the motion for

reconsideration, claiming that the judge abused his discretion

because (1) Santos was not entitled to possession where she

failed to meet her obligations under the trust, (2) Gomes was

not entitled to possession as an unauthorized occupant of the

home, (3) the award of damages was improper where possession

entered for the defendants, and (4) attaching conditions to the

judgment was an error of law. We review for abuse of

discretion. See Dacey v. Burgess, 491 Mass. 311, 317 (2023).

1. Possession. To be entitled to possession of the

premises in a summary process action, the plaintiff is required

to show that (1) she is the owner of the subject premises, (2)

she served on the defendants a legally adequate notice to quit,

and (3) the defendants hold possession of the premises without

right. See G. L. c. 239, § 1; Cambridge St. Realty, LLC v.

Stewart, 481 Mass. 121, 130 (2018). Rose primarily contends

that Santos's failure to make timely rent, tax, and insurance

payments violated the terms of the trust and thus entitled Rose

to possession.

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As to the rent payments, the judge found that as of the

time of trial in October 2023, Santos owed rent for that month.

Although the plain language of the trust requires Santos to make

monthly payments of $500, the trust does not specify when those

payments are due. See Ferri v. Powell-Ferri, 476 Mass. 651, 654

(2017) ("The rules of construction of a contract apply similarly

to trusts; where the language of a trust is clear, we look only

to that plain language"). In the absence of a due date, and

where the trial was completed before the last day of October,

the fact that Santos had not paid her October rent does not

establish that she failed to meet her obligations under the

trust. Contrast Scott Realty Group Trust v. Charland, 98 Mass.

App. Ct. 706, 721-722 (2020) (no error in awarding past due rent

on fifth of month where undisputed that rent was due on first of

each month).

Regarding the late tax and insurance payments, as the judge

found, Santos's failure to make such payments was "at least

partially the fault of [Rose] and her sister in not forwarding

invoices for taxes and insurance in a timely manner." Compare

Cabot v. Cabot, 55 Mass. App. Ct. 756, 771-772 (2002) (regular

receipt of notices for payment, and repeated failure to pay,

amounted to violation of obligation to pay share of expenses).

Indeed, the judge credited Santos's testimony that the sisters

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were not in communication, and that she did not receive the

invoices as they came due. As Rose does not contest the judge's

findings of fact following trial and "we give due regard to the

judge's assessment of the witness['s] credibility," Andover

Hous. Auth. v. Shkolnik, 443 Mass. 300, 306 (2005), we discern

no abuse of discretion in the judge's determination that Rose

was not entitled to possession based on Santos's failure to pay

the overdue invoices timely.

Rose additionally argues that Gomes was not entitled to

possession where he was not a beneficiary of the trust and had

not paid rent. To the extent that Rose contests the creation of

a tenancy with Gomes, the parties orally stipulated to several

facts at the outset of trial, including that a tenancy existed

between the parties. See Goddard v. Goucher, 89 Mass. App. Ct.

41, 45 (2016) (factual stipulations are generally binding on

parties and respected by courts). Further, Rose served Gomes

with a ninety-day notice to quit indicating that the tenancy was

one at will. See Newman v. Sussman, 239 Mass. 283, 285 (1921)

(tenancy at will may be created by conduct of parties).

Consequently, the judge did not abuse his discretion in denying

the motion on this basis.

2. Other requested relief. Rose argues that the award of

damages was improper because it constituted relief beyond what

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is available to a landlord in a summary process action. See

G. L. c. 239, § 3; Jinwala v. Bizarro, 24 Mass. App. Ct. 1, 7

n.4 (1987). She also argues that the judge erred in attaching

conditions to the judgment in the form of due dates for rent,

insurance, tax, and utility payments, as being outside the scope

of judgments authorized by G. L. c. 239, § 3. However, because

the defendants did not file a cross appeal, and did not

participate in this appeal, we decline to disturb so much of the

judgment that awarded damages to Rose and provided deadlines for

payment. See Taylor v. Beaudry, 82 Mass. App. Ct. 105, 112

(2012), and cases cited ("[I]n the absence of a cross appeal an

appellee may not obtain a decree more favorable than the one

issued below").

Order denying motion for
reconsideration of judgment
affirmed.

By the Court (Blake, C.J.,
Shin & Hand, JJ.6),

Clerk

Entered: February 18, 2025.

6 The panelists are listed in order of seniority.

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