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15-P-441                                             Appeals Court

   FEDERAL NATIONAL MORTGAGE ASSOCIATION     vs.   HEATHER GORDON
                           & another.1


                            No. 15-P-441.

            Suffolk.      March 8, 2016. - May 17, 2017.

            Present:    Hanlon, Sullivan, & Massing, JJ.


Trespass. Real Property, Trespass, Mortgage, Lease. Mortgage,
     Foreclosure. Landlord and Tenant, Control of premises.
     Housing Court, Jurisdiction. Jurisdiction, Housing Court.
     Summary Process. Practice, Civil, Summary judgment,
     Summary process.



     Civil action commenced in the City of Boston Division of
the Housing Court Department on June 24, 2013.

     The case was heard by MaryLou Muirhead, J., on a motion for
summary judgment.


     Thomas B. Vawter for the defendants.
     Danielle C. Gaudreau (Thomas J. Santolucito also present)
for the plaintiff.


    HANLON, J.    The defendants in this trespass action, Heather

Gordon and her granddaughter, Kaire Holman, challenge the


    1
        Kaire Holman.
                                                                     2


validity of a judgment for possession entered by the Housing

Court in favor of the plaintiff, the Federal National Mortgage

Association (Fannie Mae), on its motion for summary judgment.

Fannie Mae claims ownership, through foreclosure, of the

residential condominium at issue, known as Unit 2 at 7 Valentine

Street, in the Roxbury section of Boston (the property).    Gordon

claims that she and Holman occupy the property pursuant to a

lease from Carolyn Grant, who held record title to the

condominium as a joint tenant with Gilbert R. Emery prior to the

foreclosure.   The lease on which Gordon and Holman rely,

however, is dated after both (i) the date of the foreclosure,

and (ii) the date on which Fannie Mae began a summary process

action against Emery, Grant, and another occupant2 to obtain

possession of the property.

     When Fannie Mae learned that Gordon and others had moved

into the property as ostensible lessees, Fannie Mae brought a

new action (separate from the summary process case) for common

law trespass, which is the case now before us.3

     After review, we reverse the final judgment, holding as

follows:   (i) the Housing Court has jurisdiction pursuant to


     2
       Jeffrey Grant. Hereinafter, we refer to Caroline Grant as
"Grant," and Caroline and Jeffrey Grant collectively as "the
Grants."
     3
       Hereinafter, we refer to the purported tenants,
individually and collectively, as "Gordon."
                                                                        3


G. L. c. 185C, § 3, to hear trespass claims; (ii) the teaching

of Attorney Gen. v. Dime Sav. Bank of N.Y., FSB, 413 Mass. 284,

288 (1992) (Dime Savings), with respect to whether G. L. c. 184,

§ 18, bars trespass actions by postforeclosure owners against

tenants with actual possession, applies with equal force in the

circumstances of this case; and (iii) the summary judgment

record does not establish Fannie Mae's actual or constructive

possession of the subject property, a prerequisite for a

trespass claim.

     Background.    The following facts are taken from the record

and, essentially, are undisputed.    In 2007, Emery granted a

mortgage on the property to Wells Fargo Bank, N.A. (Wells Fargo)

to secure a loan.    On or about August 15, 2007, Emery deeded his

interest in the property to himself and Grant as joint tenants

with the right of survivorship.

     By July, 2010, Emery was in arrears on his loan payments.

Acting pursuant to the statutory power of sale contained in its

mortgage, Wells Fargo4 conducted a foreclosure auction on August

27, 2010, at which it submitted the high bid.       Thereafter, Wells

Fargo executed an assignment of its bid to Fannie Mae, and

executed and recorded a foreclosure deed of the property to

Fannie Mae.    Shortly thereafter, Fannie Mae filed a summary



     4
         Wells Fargo is not a party to this case.
                                                                    4


process action in Boston Housing Court against Emery and the

Grants.

     Almost two years later, on July 27, 2012, Grant and Gordon

executed a document entitled "Residential Lease."   The purported

lease names Gordon as "Tenant" and Grant as "Landlord" and

provides for a three-year rental term beginning on August 1,

2012, and concluding on August 1, 2015, at a rental rate of

$1,300 per month.5   It appears from the record that Gordon began

paying rent to Grant in July, 2012.6   Gordon's affidavit states

that the March and April, 2013, rent payments were discounted

because Grant was "behind thousands of dollars in her utility

bills," which had to be paid before the utilities could be

placed in Gordon's name.7   Gordon's affidavit further states that

she was to move into the unit in August of 2012, but that there

was a delay in Grant's moving out, and Gordon did not actually



     5
       The lease also lists three children, including Holman, as
having Grant's express permission to occupy the unit as part of
the tenancy.
     6
       Specifically, Gordon's uncontroverted affidavit states
that she paid a total of $3,900 to Grant from July through
September, 2012, for first and last month's rent and a security
deposit; $1,300 on October 5, 2012, for rent for an unspecified
month; $1,300 in rent for January and February, 2013; and $600
"in rent in March and April 2013."
     7
       The record is silent as to whether Grant accepted rent
after April, 2013; however, it is undisputed that she accepted
rent from Gordon for several months after Grant moved out of the
property in December, 2012 (see note 6, supra).
                                                                     5


move in until December 16, 2012, the same day Grant moved to

Florida.

     The Housing Court docket indicates that, on or about

October 1, 2012 -- after execution of the lease on which Gordon

relies, but before Grant left the property -- one or more

parties to Fannie Mae's summary process action reported that

matter settled, and the Housing Court issued a sixty-day nisi

order.   The record includes an unsigned "Agreement for Judgment"

for possession stating that Emery and the Grants would move out

of the property by December 15, 2012, and that no other

occupants would reside therein.     However, after the report of a

settlement to the Housing Court, a disagreement apparently arose

between Fannie Mae and the defendants in the summary process

action about whether they had actually perfected a deal.

Consequently, a stipulation of dismissal was never filed in that

matter, and the summary process action retained "active" status

on the Housing Court's docket throughout the course of the

proceedings in the present case.8




     8
       Although the nisi order in the summary process action
stated that all the claims and counterclaims in the action would
be dismissed sixty days from the date of the order "in the event
the parties fail to file a stipulation of dismissal," the docket
of that case, reproduced in the record appendix, does not show
that judgment for possession for Fannie Mae was ever entered.
Rather, the docket shows active litigation in the matter at
least into May of 2013.
                                                                      6


     Meanwhile, on December 16, 2012, Grant moved out of the

property and, on that same date, Gordon moved in.9   At some time

thereafter, Fannie Mae learned that Gordon had moved in to the

property, and, on or about June 24, 2013, Fannie Mae began the

instant action in the Boston Housing Court, filing a complaint

against Gordon in two counts, for trespass and injunctive

relief, respectively.    After amending the complaint to name

other occupants as defendants, Fannie Mae then brought a motion

for summary judgment on June 27, 2014.

     The motion judge allowed the motion on or about October 21,

2014.    In so doing, the judge focused on the question whether

Fannie Mae had obtained possession of the property, a

prerequisite for maintaining a common-law trespass action.      See

Dime Savings, 413 Mass. at 288 ("An action of trespass, being a

possessory action, cannot be maintained, unless the plaintiff

had the actual or constructive possession of the property

trespassed upon at the time of the trespass").   The judge

determined that Fannie Mae's constructive possession of the

property was established during the period of time, however

short, between when Grant moved out of the property and Gordon

moved in.

     9
       There appears to be some dispute about this timing
reflected in the record, but, for purposes of this appeal, we
view the facts in the light most favorable to the nonmoving
party, Gordon.
                                                                    7


     The judge ordered that "judgment . . . enter for the

Plaintiff as prayed for in the complaint."    In a further order

dated December 31, 2014, she dismissed Fannie Mae's claim for

money damages and ordered that "final judgment for possession

shall enter and the execution shall issue in the usual course."10

     Gordon appeals, arguing that the Housing Court's judgment

should be vacated on the following grounds:    (i) the Housing

Court lacks subject matter jurisdiction pursuant to G. L.

c. 185C, § 3, over a common-law trespass claim; (ii) a trespass

claim is unavailable to Fannie Mae here because it is barred by

G. L. c. 184, § 18; and (iii) Fannie Mae failed substantively to

demonstrate its entitlement to judgment because it did not show

that it ever obtained the requisite actual or constructive

possession of the property necessary to prevail on a trespass

claim.

     Discussion.    1.   Jurisdiction of the Housing Court over

trespass actions.    We first consider the defendants' claim that

the Housing Court is without subject matter jurisdiction to hear

Fannie Mae's trespass claim.    Although, as Fannie Mae correctly

observes, the subject matter jurisdiction of the Housing Court

     10
       The Housing Court's final judgment entered on January 7,
2015. Notwithstanding that this case was not commenced or
treated as a summary process action, the judgment issued by the
court is entitled "Judgment of Summary Process for Plaintiff."
The docket reflects that execution issued as of January 20,
2015, but no copy of the execution appears in the record.
                                                                      8


to hear its trespass claim was not raised by the defendants in

the proceedings below, a lack of subject matter jurisdiction

cannot be waived and must be considered by the court at any time

-- even on appeal, and even sua sponte.11   See Cohen v. Cohen,

470 Mass. 708, 713 (2015); Abate v. Fremont Inv. & Loan, 470

Mass. 821, 828 (2015).   See also Chestnut-Adams Ltd. Partnership

v. Bricklayers & Masons Trust Funds of Boston, 415 Mass. 87, 90

(1993); Worcester Heritage Soc., Inc. v. Trussell, 31 Mass. App.

Ct. 343, 347 n.3 (1991) ("Although neither party raises any

question concerning the jurisdiction of the Housing Court, we

have considered the question, as we must").

     The Housing Court's general subject matter jurisdiction is

described in G. L. c. 185C, § 3, which has been called

"imprecise and more than a little ungainly."   Murphy v. Miller,

75 Mass. App. Ct. 210, 214 (2009).   The statute was inserted

into the General Laws by St. 1978, c. 478, § 92, and the Housing

Court's jurisdictional reach was greatly expanded through a

series of amendments, beginning with St. 1979, c. 72, § 3.      See

Tedford v. Massachusetts Hous. Fin. Agency, 390 Mass. 688, 693

n.7 (1984); Patry v. Liberty Mobilhome Sales, Inc., 15 Mass.

App. Ct. 701, 704-705 (1983).   Nonetheless, the Housing Court


     11
        Fannie Mae acknowledges that the claim of a lack of
subject matter jurisdiction may be raised for the first time on
appeal.
                                                                    9


"remains a court of limited jurisdiction with its [primary]

expertise in the area of housing."    LeBlanc v. Sherwin Williams

Co., 406 Mass. 888, 897 (1990).

    In its current form, the Housing Court's jurisdiction

includes matters brought "under the provisions of common law and

of equity and any other general or special law, ordinance, by-

law, rule or regulation as is concerned directly or indirectly

with the health, safety, or welfare, of any occupant of any

place used, or intended for use, as a place of human habitation

and the possession, condition, or use of any particular housing

accommodations or household goods or services situated therein

or furnished in connection there with."   G. L. c. 185C, § 3, as

appearing in St. 1987, c. 755, § 3.

    The Housing Court also has jurisdiction over "all housing

problems, including all contract and tort actions which affect

the health, safety and welfare of the occupants or owners

thereof, arising within and affecting residents in the city of

Boston, in the case of that division, . . . and shall also have

jurisdiction in equity, concurrent with the divisions of the

district court department, the divisions of the probate and

family court department, the superior court department, the

appeals court, and the supreme judicial court, of all cases and

matters so arising."   Ibid.
                                                                   10


       The defendants argue that Fannie Mae's case is not

concerned with housing, but rather with the question whether

they are trespassers on the property, and, thus, the case falls

outside the jurisdiction of the Housing Court.    We disagree.

The Housing Court's jurisdiction broadly encompasses "all

contract and tort actions which affect the health, safety and

welfare of the occupants or owners thereof."    G. L. c. 185C,

§ 3.    Although there appears to be no appellate authority for

the specific proposition that this language includes trespass

claims concerning residential real estate (and the parties have

cited none), we have no doubt that a trespass on residential

land would typically affect the "health, safety and welfare of

the occupants or owners thereof."    G. L. c. 185C, § 3.    The fact

that the Housing Court is particularly concerned with claims

regarding the physical condition of housing, see Ryan v. Kehoe,

408 Mass. 636, 640 (1990); Murphy, 75 Mass. App. Ct. at 215,

does not limit the scope of matters that could affect the

health, safety, and welfare of owners and occupants to only

those concerning the habitability or safety of the physical

premises.    The presence of trespassers in residential housing

will, in many cases, affect the health, safety, and welfare of

an owner or occupant.    As we are satisfied that the Housing

Court has jurisdiction, we turn to the question whether an
                                                                  11


action for trespass is available in the circumstances of this

case.

     2.   Whether an action against Gordon for trespass was

available to Fannie Mae.     Relying on Dime Savings, supra, Gordon

argues that G. L. c. 184, § 18, bars Fannie Mae's common-law

trespass claim, and requires that the Housing Court's judgment

for possession be vacated.    In her view, Fannie Mae's only

remedy to evict her is through summary process.12

     In Dime Savings, the Attorney General brought an action for

declaratory and injunctive relief against the Dime Savings Bank

of New York, asking the court to enjoin the bank from bringing

"actions in trespass against foreclosed mortgagors and tenants

holding over after notice to quit" and from seeking "to eject

holdover mortgagors and tenants from the mortgaged properties."

413 Mass. at 284-285.   The court concluded that "the procedure

employed by Dime in [those] cases violate[d] G. L. c. 184, § 18,

     12
       The defendants did not raise in the Housing Court their
argument that Fannie Mae's trespass action is foreclosed
pursuant to G. L. c. 184, § 18. In Dime Savings, the parties
both treated this question as one of "subject matter
jurisdiction," and the Supreme Judicial Court had no reason to
second-guess that assumption. See Dime Savings, 413 Mass. at
287. See also Commonwealth v. DeJesus, 440 Mass. 147, 151
(2003) (questions of subject matter jurisdiction can be raised
at any time and are not waived even when not argued below). In
the exercise of our discretion, we shall reach Gordon's
argument, as a question of important public interest, even
though it may have otherwise been waived. See Pryor v. Holiday
Inns, Inc., 401 Mass. 506, 509-510 (1988); Slawsby v. Slawsby,
33 Mass. App. Ct. 465, 469-470 (1992).
                                                                    12


[and] therefore remand[ed] the matter to the county court for

entry of a declaration that a mortgagee who forecloses on real

property by sale may not bring a trespass action against a

holdover tenant or mortgagor in actual possession of the

foreclosed premises."   Id. at 285.

    General Laws c. 184, § 18, as amended by St. 1973, c. 778,

§ 1, provides that "[n]o 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."     In Dime

Savings the Supreme Judicial Court determined that a trespass

action is not available under the statute's provision for "such

other proceedings authorized by law," to a purchaser at a

foreclosure sale seeking to gain possession from a mortgagor or

its tenants in actual possession of the premises and holding

over from before the foreclosure.     See Dime Savings, 413 Mass.

at 285.   See also Deutsche Bank Natl. Trust Co. v. Gabriel, 81

Mass. App. Ct. 564, 565-566 (2012) ("Deutsche Bank, having

acquired the property after a foreclosure sale, was both

required and entitled to use summary process, G. L. c. 239, § 1,

to recover possession from the defendants, who continued to

occupy the premises after the foreclosure. . . .     Dime

Sav[ings], 413 Mass. [at] 291").
                                                                   13


     Fannie Mae argues, however, that neither G. L. c. 184,

§ 18, nor the summary process statute, G. L. c. 239, bars its

trespass claim.    The Supreme Judicial Court addressed this issue

in Dime Savings.    In holding that the bank's trespass actions

should be enjoined pursuant to G. L. c. 184, § 18, the court

specifically noted that, "[i]n each of the cases in question,

the property was occupied at the time of the foreclosure either

by the mortgagor or a tenant of the mortgagor."    Dime Savings,

413 Mass. at 286.    Moreover, "[a]ll such occupants initially

entered the respective properties lawfully."    Ibid.

     There is no dispute here that Grant, as a joint tenant with

Emery, the mortgagor, occupied the property at the time of the

foreclosure.   Thus, the initial question presented here is

whether Dime Savings can be distinguished from the instant case

on the ground that Gordon (unlike the tenants in Dime Savings)

did not initially enter the subject property "lawfully."    See

Dilbert v. Hanover Ins. Co., 63 Mass. App. Ct. 327, 333 (2005)

("trespass equates to wrongful entry").    We are persuaded that

the holding of Dime Savings also applies on the facts of this

case.

     In Dime Savings, the court determined that "[t]here is

. . . no basis, on this record, for distinguishing holdover

tenants of mortgagors from holdover mortgagors."    Id. at 285
                                                                   14


n.4.13    That reasoning is equally applicable here.   We see no

principled basis for distinguishing Gordon from the tenants in

Dime Savings.    Moreover, to treat Gordon's status in relation to

the property as somehow lesser than or different from that held

by the holdover tenants in Dime Savings could only be justified

by ascribing to Gordon some actual or constructive knowledge

about the legal status of Grant's title.    In other words, to

treat a purported tenant such as Gordon differently from the

bona fide tenants in Dime Savings14 could only be justified by

applying some expectation that residential renters will take

steps to determine the validity of their landlord's title prior

to entering a lease.    We know of no basis for any such

expectation.

     Accordingly, we decline to adopt a rule that would

distinguish this case from Dime Savings based solely on the


     13
       In addition, in Dime Savings, the Supreme Judicial Court
cited approvingly the Attorney General's argument that "unlike
the situation of the holdover mortgagors, there is nothing in
the stipulation of facts to suggest that the holdover tenants
were responsible for the defaults." 413 Mass. at 285 n.4. This
point is also applicable here. Like the defendants in Dime
Savings, Gordon was not responsible for the defaults on loan
obligations that led to the foreclosure.
     14
       We use the term "purported" because the question whether
Fannie Mae obtained good title as a result of the foreclosure
sale and assignment has never been reduced to a judgment against
Grant. See note 8, supra. In contrast, in Dime Savings there
was no question presented as to the validity of the occupants'
tenancies. 413 Mass. at 286.
                                                                  15


state of the purported landlord's title, or would deem a

purported lessee's possession of premises to be "unlawful" in

all circumstances where the purported landlord's title is later

adjudicated to be lacking.   Here, Grant was lawfully occupying

the subject property while defending against Fannie Mae's

summary process action at the time she entered the purported

lease with Gordon.   Like the tenants in Dime Savings, Gordon was

never a true stranger to the property.   Instead, at a minimum,

she entered at the invitation of a person with actual

possession, who was defending an active eviction case that had

yet to conclude with the entry of a judgment for possession for

any other party.   We note that this situation is easily

distinguishable from a case in which a person makes a forced

entry into a vacant property and, without permission from any

purported owner, takes up residence therein.

    We conclude that the Supreme Judicial Court's declaration

in Dime Savings that a postforeclosure owner may not bring a

trespass action against a holdover tenant who is in actual

possession of the premises applies with equal force here, where

the purported tenants claim to have leasehold rights arising

after a foreclosure, but before a final judgment for possession

has entered against the landlord.   That, however, does not end

our inquiry, as, under Dime Savings, supra, and its construction

of G. L. c. 184, § 18, it was open to Fannie Mae to maintain the
                                                                  16


trespass action if it could demonstrate that it had obtained at

least constructive possession of the premises before Gordon

entered.

     3.    Whether Fannie Mae obtained constructive possession.

The motion judge reasoned that, because the foreclosure was

effective, Fannie Mae and not Grant held title to the property

on the date Grant moved out.   As a result, the judge concluded

that Fannie Mae obtained constructive possession at the moment

Grant vacated the property, making Gordon a trespasser.    We

disagree.15   In our view, Fannie Mae did not establish its

constructive possession on the summary judgment record before

us, and Dime Savings governs this point as well.

     Some older cases concerning the tort of trespass assert

that a plaintiff's "actual" possession of the subject land prior

to the trespass is an elemental requirement.   See New England

Box Co. v. C & R Constr. Co., 313 Mass. 696, 707 (1943), quoting

from Perry v. Weeks, 137 Mass. 584, 587 (1884) ("To support an

action of trespass . . . , it is necessary to prove the actual

possession of the plaintiff, and an illegal entry by the

     15
       Assuming a lawful foreclosure (a question we do not
decide, see note 14, supra), Grant's ownership interest in the
property was terminated and she became a tenant at sufferance,
with no legal interest in the property. See Margosian v.
Markarian, 288 Mass. 197, 199 (1934). If she held no legal
interest in the property, she could not validly convey an
interest, by lease or otherwise, to anyone else. However, that
alone does not extinguish Grant's possessory interest, a
necessary element in Fannie Mae's trespass claim.
                                                                    17


defendant").   It is now established, however, that, for the

purposes of a trespass claim, "possession does not require that

the plaintiff physically occupy the property at the time of the

alleged trespass," and a plaintiff with "constructive

possession" may maintain a trespass claim "against other parties

without [actual] possession at the time of [their] entry."

Dilbert v. Hanover Ins. Co., 63 Mass. App. Ct. at 334.     See Dime

Savings, 413 Mass. at 288, quoting from Emerson v. Thompson, 2

Pick. 473, 484 (1824).

       In Dime Savings, as here, neither party contended that the

bank had actual possession of the subject property.     413 Mass.

at 288.   The court considered (and ultimately adopted) the view

from several other jurisdictions that "for the purposes of a

trespass action, there can be no constructive possession by an

owner of property actually possessed by another."     Id. at 288-

289.    Accordingly, here, Fannie Mae's claim required proof that

there was a period of time, however brief, when no other person

was in actual possession.

       For summary judgment purposes in this case, viewing the

facts in the light most favorable to the nonmoving party, Grant

moved out and Gordon moved into the premises on the same day.

See note 9, supra.    The motion judge held, as a matter of law,

that this constituted a brief period of vacancy, which was

sufficient to establish Fannie Mae's constructive possession.
                                                                  18


    We disagree.    Because we are satisfied that, on the summary

judgment record presented, Grant's "actual" possession did not

necessarily end at the moment she moved out, we reverse.     It is

undisputed that Grant executed a lease on or about July 27,

2012, which, on its face, entitled Gordon to occupy the premises

for a term of three years, beginning on August 1, 2012.     Grant's

execution of the lease and her surrender of the purportedly

leased premises to Gordon pursuant to that lease do not indicate

Grant's surrender of possession in relation to others who might

claim title.   On the contrary, these facts suggest the opposite.

Cf. Shoer v. Daffe, 337 Mass. 420, 424 (1958) (letting of

premises by adverse possessor, and subsequent possession by

succession of tenants under purported leases, did not interrupt

adverse possessor's claim as against the record title holder for

purposes of the twenty-year prescriptive period).   Nor does a

gap in time between when Grant vacated and Gordon entered the

premises signify that Grant surrendered her actual possession.

Cf. ibid., quoting from Wishart v. McKnight, 184 Mass. 283, 285-

286 (1903) ("To warrant a finding that there was a continuity of

possession, we do not deem it necessary to show by express

testimony that the new occupant was personally present upon the

premises before the former occupant departed, and that there was

a formal manual transfer of possession. . . .   There is a fair

inference that . . . the[] possession [of the tenant and the
                                                                     19


owner] is continuous, or rather, that the possession of the

owner is continuous, although the two do not meet personally

upon the premises at the end of the term").

    The question whether Grant surrendered possession of the

property "is to be determined by the intent as expressed by

words and acts of all the parties in the light of the

circumstances."   Net Realty Holding Trust v. Giannini, 13 Mass.

App. Ct. 273, 278 (1982), quoting from Tudor Press, Inc. v.

University Distrib. Co., 292 Mass. 339, 341 (1935).     Indicative

of Grant's continuing possession is Gordon's uncontroverted

affidavit, which states that, although Grant moved out on

December 16, 2012, Grant's name remained on certain utilities

for an unspecified period of time after that date, and Gordon

paid rent to Grant for several months after that date.     Contrast

Caruso v. Shelit, 282 Mass. 196, 199 (1933) (surrender by

operation of law).     The record is silent as to whether Grant

acted in any other way that would suggest that she intended to

maintain possession of the property (as against anyone but her

tenant) after she moved out, such as by making repairs, paying

taxes, or paying utility bills.     It is undisputed, however, that

the summary process case against Grant remained pending with no

adjudication of the title as of the date Grant left the property

and Gordon moved in.     Furthermore, as we have noted, the docket
                                                                 20


in that case continues to reflect active litigation as late as

May, 2013.

    We are satisfied that, on this record, and taking the facts

in the light most favorable to the nonmoving party, Fannie Mae

has not demonstrated a gap in Grant's possession such that

Fannie Mae gained constructive possession of the premises.

Thus, under Dime Savings, the summary judgment in favor of

Fannie Mae cannot stand.

                                   Judgment reversed.
