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SJC-12440
SJC-12563

        CAMBRIDGE STREET REALTY, LLC vs. MELINDA STEWART
                    (and a consolidated case1).



        Suffolk.    September 7, 2018. - December 20, 2018.

   Present:    Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
                           & Kafker, JJ.


Housing. Summary Process, Notice to quit. Jurisdiction,
     Housing Court, Summary process. Housing Court,
     Jurisdiction. Practice, Civil, Summary process, Default,
     Continuance, Bond, Judgment, Execution.



     Summary Process. Complaint filed in the Boston Division of
the Housing Court Department on October 11, 2016.

    The case was heard by Jeffrey M. Winik, J.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.

     Civil action commenced in the Supreme Judicial Court for
the county of Suffolk on June 25, 2018.

    The case was reported by Gaziano, J.


    Joshua J. Bone for the tenant.
    Eleftherios S. Papadopoulos for the landlord.

    1   Melinda Stewart   vs.   Cambridge Street Realty, LLC.
                                                                   2




     KAFKER, J.   Melinda Stewart (tenant), a recipient of a

United States Department of Housing and Urban Development (HUD)

Housing Choice Voucher (Section 8 voucher), fell behind on her

rent, and her landlord, Cambridge Street Realty, LLC (landlord),

served her with a notice of termination of tenancy (notice to

quit) before bringing a summary process eviction action against

her in the Boston Division of the Housing Court Department.2

Following a trial that, without advance notice, occurred on the

same day as a hearing on the tenant's motion to vacate a default

judgment, the landlord received a judgment of execution and

forty-four dollars in back rent.   Although the case was

initially stayed after the tenant posted an appeals bond in the

amount of forty-four dollars, the Housing Court judge

nonetheless allowed the execution to issue on the landlord's

representation that the tenant had violated a nonfinancial

condition of the bond.   Execution was then again stayed after

the tenant filed a G. L. c. 211, § 3, petition with a single

justice of this court.

     This case presents a number of unresolved questions of law:

whether (1) termination of a residential tenancy by a legally




     2 After this case was brought, the Housing Court Department
was reorganized by statute, and the Boston Division became part
of the Eastern Division. St. 2017, c. 47, § 78.
                                                                    3


adequate notice to quit is necessary to confer subject matter

jurisdiction on the Housing Court; (2) the judge erred or

otherwise abused his discretion when he failed to provide

advance notice that he might conduct trial on the same day as a

motion hearing on a default judgment and denied a continuance

requested under Housing Court Standing Order 1-01 (2001) to a

self-represented litigant represented by a limited assistance

volunteer attorney who was willing to enter a full appearance;

and (3) a judge has the authority to impose a nonfinancial

condition on an appeals bond issued under G. L. c. 239, § 5,

with respect to an appeal from a judgment for possession of land

or tenements.

    We hold that a legally effective notice to quit is a

condition precedent to a summary process action and part of the

landlord's prima facie case but is not jurisdictional.   We

further explain that the notice to quit was not defective in the

instant case.   We nonetheless vacate the judgment and remand for

a new trial because we hold that the Housing Court judge abused

his discretion when, without providing advance notice that he

would conduct trial on the same day as the scheduled hearing on

the motion to vacate the default, he denied the volunteer

attorney's request for a continuance provided by Housing Court

Standing Order 1-01.   In addition, we hold that the judge lacked

statutory authority to impose a nonfinancial condition on the
                                                                       4


appeals bond, and we therefore reverse the order of execution

arising from the tenant's alleged noncompliance with the appeals

bond.

     1.     Background.   a.   Standard of review.   When reviewing

the decision of a trial judge in a summary process action, "we

accept [the judge's] findings of fact as true unless they are

clearly erroneous," but "we scrutinize without deference the

legal standard which the judge applied to the facts" (citation

omitted).    Andover Hous. Auth. v. Shkolnik, 443 Mass. 300, 306

(2005).

     b.     Facts and procedural history.    The facts, according to

the undisputed facts in the record, the parties' joint statement

of facts, and the judge's decision below, are as follows.        In

the summer of 2010, the tenant began to lease an apartment from

the landlord.    Due to her low income, the tenant qualified to

receive a Section 8 voucher administered by the Boston Housing

Authority (BHA).3    The tenant and the landlord entered into a


     3 "In the United States Department of Housing and Urban
Development (HUD) Housing Choice Voucher Program (Section 8),
HUD pays rental subsidies so eligible families can afford
decent, safe and sanitary housing. The Section 8 program is
generally administered by State or local governmental entities
called public housing agencies (PHAs). HUD provides housing
assistance funds to the PHA. HUD also provides funds for PHA
administration of the programs. Section 8 housing assistance
may be 'tenant-based' or 'project-based.' With tenant-based
assistance, [f]amilies select and rent units that meet program
housing quality standards. If the PHA approves a family's unit
                                                                    5


BHA-provided lease (model lease) and a HUD-approved addendum

(HUD addendum).   The landlord agreed in the HUD addendum that it

would "only terminate the tenancy in accordance with the lease

and HUD requirements."   These requirements included specific

notice provisions.   In particular, per the HUD addendum, the

landlord had to provide "the tenant a notice that specifies the

grounds for termination of tenancy."   Additionally, the model

lease stated that the landlord "shall" include specific

termination language in its termination notice.4

     The tenant's lease began to run in August 2010, and

provided that, after a year, it would automatically renew in

successive month-to-month terms, unless the landlord terminated

the lease for one of several permissible reasons.   The tenant

initially lived in the apartment with her son until he was

killed in a homicide in 2013.   The son's death reduced the



and tenancy, the PHA contracts with the owner to make rent
subsidy payments on behalf of the family." (Quotations and
citations omitted.) Figgs v. Boston Hous. Auth., 469 Mass. 354,
355 n.2 (2014). Due to limited funds, PHAs typically maintain a
waiting list for Section 8 voucher applicants. 18B D.A. Randall
& D.E. Franklin, Municipal Law and Practice § 25.18 (5th ed.
2006).

     4 "The termination notice shall include the following
language: 'Your tenancy can be terminated only at the end of
the Initial Term or at the end of a Successive Term for other
good cause, or during the Initial Term or Successive Term for
serious or repeated violations of this Lease, violation of
Federal, State or local law. The reason for termination of your
Lease is _____________.[']"
                                                                   6


income available to the tenant.   Despite receiving financial

support from a rental assistance organization, the tenant began

to fall behind on her share of the monthly rent each month

starting in February 2015.5   The landlord sent the tenant

numerous "rent reminders" stating the amount of overdue rent

each month.

     In August 2016, the landlord began the process of evicting

the tenant.   Through its counsel, the landlord had a constable

serve the tenant with a notice to quit on August 31, 2016,

informing the tenant that it was terminating her lease for

serious and repeated lease violations, specifically, paying her

rent after the first of the month, as well as improperly storing

items in the building's common areas.   The notice to quit

demanded that the tenant vacate the premises within thirty days

or face eviction.

     After the tenant declined to move out by September 30,

2016, the landlord served the tenant with a summary process

summons and complaint that set a hearing date of October 20,


     5 The landlord and the Boston Housing Authority (BHA) had
entered into a "Housing Assistance Payments" contract that
required the BHA to pay most of the tenant's rent each month
promptly and directly to the landlord. At the time of lease
signing, the tenant's total monthly rent was $1,324, with the
landlord receiving $1,044 of the rent from the BHA. The
tenant's monthly rent increased to $1,500 in June 2016, with her
share increasing to $332. The tenant's income at the time of
trial was $700 per month.
                                                                    7


2016.    The landlord received a default judgment when the tenant

did not appear for trial on that date.6   The same day, however,

the tenant filed a motion to vacate the default judgment on the

advice of a clerk at the Housing Court.    The court sent the

parties a "Notice of Motion Hearing" informing them that the

tenant's motion to vacate the default judgment would be heard on

November 10, 2016, which it was.   At the motion hearing, the

landlord was represented by counsel, while the tenant engaged a

volunteer attorney participating in the Housing Court's "lawyer

for a day program" (LDP attorney) on a limited assistance basis

to represent her in settlement talks and on the motion.7   The

court granted the motion to vacate the default and announced

that it would conduct a trial on the same day, which it did.

     Shortly after the trial commenced, the LDP attorney who had

been providing limited representation to the tenant in

settlement talks and on the motion to vacate told the judge that

she would be willing to enter a full appearance and requested a




     6 The tenant claimed that she inadvertently went to the
wrong court room on the original trial date, and that by the
time she realized her mistake she had been defaulted.

     7 As discussed infra, while not expressly stated in the
record, we infer that the tenant's attorney was participating in
the "lawyer for a day" program established by Housing Court
Standing Order 1-01 whereby volunteer attorneys provide limited
assistance to self-represented parties in the Housing Court.
                                                                      8


continuance pursuant to Housing Court Standing Order 1-01.8        That

standing order provides that if an LDP attorney assisting a pro

se litigant in mediation does not enter an appearance but

assists the litigant in preparing a motion for a continuance,

the "motion shall be allowed if good cause is shown," while if

the LDP attorney does enter an appearance, "the litigant shall

be entitled to a two (2) week continuance of trial."     Housing

Court Standing Order 1-01(5).   After the LDP attorney's motion,

the judge declared that, absent a settlement, "the trial's going

forward today."   When no settlement was reached, the LDP

attorney withdrew her motion for a continuance and submitted her

withdrawal of limited appearance, and the tenant went through

the trial self-represented.

     Judgment entered for the landlord on November 15, 2016.        In

his written decision, the Housing Court judge held that the

landlord had not proved that the tenant committed a lease

violation by improperly storing her personal property.      With


     8 The form Notice of Limited Appearance used by the Housing
Court instructs attorneys participating in the Housing Court's
"lawyer for a day program" (LDP attorneys) to "identify the
discrete issues within the event covered by the appearance" by
checking one of several boxes. Here, the tenant's attorney
checked the box next to "[m]otion to vacate default judgment,"
but not the box next to "[m]ediation." Nonetheless, the LDP
attorney had been assisting the tenant in settlement talks that,
as she informed the judge, had been proceeding for several hours
prior to the trial. The landlord's settlement demand would have
required the tenant to pay the outstanding rent balance and move
out within a certain amount of time.
                                                                   9


respect to the late payment of rent, the judge found that the

outstanding balances due each month were not large, and that the

total amount of the rent arrearage was modest.   The judge

nonetheless held that the tenant's late payments constituted a

serious and repeated lease violation that entitled the landlord

to recover possession of the premises.   The judge ordered

execution and damages in the amount of the outstanding rent,

forty-four dollars.

    The tenant timely appealed from the judgment and filed a

motion to waive the statutorily required appeals bond.   The

judge subsequently held a hearing on the motion to waive the

bond at which the landlord was represented by counsel and the

tenant was self-represented.   The judge issued an "appeal bond

order" that declined to waive the bond and ordered it set at

$234.51, the judgment amount plus certain costs and fees, which

the tenant was to post or have her appeal dismissed.   The order

also stated that "[a]s a further condition of the bond" the

tenant had to pay $332 in monthly use and occupancy to the

landlord during the pendency of the appeal, provide the landlord

with a key to her apartment, and allow the landlord access to

perform repairs on twenty-four hours' advance written notice.

The appeal bond order stated that failure to comply with these

conditions would entitle the landlord to file a motion to

dismiss the appeal.   The tenant appealed from the denial of her
                                                                    10


motion to waive the bond and the amount of the bond, and a

single justice of the Appeals Court affirmed the order, except

for reducing the amount of the bond to forty-four dollars, which

the tenant posted.

     The appeal entered in the Appeals Court in July 2017, and

we transferred the case to this court on our own motion in

November 2017.    The landlord subsequently filed two motions to

dismiss the appeal for failure to comply with conditions of the

appeals bond.9    The first of these motions, concerning the

tenant's payment of use and occupancy, was denied by the Housing

Court judge.     The second motion, based on the tenant's alleged

refusal to allow the landlord access, was likewise denied by a

different judge.     Despite denying the motion, however, the

judge's order stated that execution would issue if the landlord

submitted affidavits averring that the tenant had not permitted

the landlord entry on June 15, 2018, to adjust the water

pressure.

     On June 18, 2018, the landlord submitted two affidavits

from its counsel and a contractor alleging that the tenant had

interfered with their diagnostic test on the water pressure in




     9 The landlord filed two motions to dismiss the appeal
before the appeal was entered in the Appeals Court based on the
tenant's failure to provide the landlord with keys to her unit
and to order a hearing transcript. These motions were either
rendered moot or denied.
                                                                    11


her bathroom sink.    Execution issued, a notice of levy was set,

and the tenant's application to the Housing Court for a

temporary restraining order was denied.      On June 25, the day

before the levy, the tenant filed her G. L. c. 211, § 3,

petition before a single justice of this court, seeking a stay

of execution.   The single justice stayed the execution and

subsequently issued a reservation and report consolidating the

tenant's petition with her pending appeal.

    2.     Discussion.   a.   Subject matter jurisdiction.   We first

address the tenant's argument that the Housing Court lacked

subject matter jurisdiction over her summary process action

because the landlord's notice to quit failed to comply with the

notice provisions of her lease and thus never terminated her

tenancy.   The tenant argues that a defective notice to quit

deprives the court of subject matter jurisdiction, and thus she

may raise it at any stage of the proceedings, even though she

did not raise it in the Housing Court.      See, e.g., Maxwell v.

AIG Dom. Claims, Inc., 460 Mass. 91, 99 (2011) ("the question of

subject matter jurisdiction may be raised by the parties at any

time").    The landlord argues, to the contrary, that the legal

adequacy of its notice to quit was not jurisdictional, and that

the tenant waived any challenges to that notice by failing to

raise them below.    We conclude that a legally adequate notice to

quit is not jurisdictional but rather a condition precedent to a
                                                                  12


summary process action that is part of the landlord's prima

facie case.   Consequently, the tenant waived the issue when she

failed to object to the adequacy of the notice at trial.

Regardless, the notice to quit here was legally adequate.

    We start our jurisdictional analysis with the text of the

summary process statute, G. L. c. 239.    See Northeast Energy

Partners, LLC v. Mahar Regional Sch. Dist., 462 Mass. 687, 692

(2012) ("The starting point of our analysis is the language of

the statute . . ." [citation omitted]).    There is no question

that summary process eviction actions generally fall within the

Housing Court's jurisdictional grant.    See G. L. c. 185C, § 3

(vesting Housing Court with jurisdiction over "all civil

actions" arising under G. L. c. 239).    See also Federal Nat'l

Mtge. Ass'n v. Rego, 474 Mass. 329, 338 (2016) (observing that

G. L. c. 185C, § 3, grants Housing Court jurisdiction to hear

summary process evictions).   Indeed, hearing eviction actions is

an express and essential Housing Court function.

    The plain text of the summary process statute, G. L.

c. 239, § 1, also defines the role of a notice to quit in the

exercise of that jurisdiction.   That statute provides in

relevant part that "if the lessee of land or tenements or a

person holding under him holds possession without right after

the determination of a lease by its own limitation or by notice

to quit or otherwise . . . the person entitled to the land or
                                                                     13


tenements may recover possession thereof under this chapter."

Termination of a lease, by its own terms or by a notice to quit,

is thus a condition precedent to bringing suit.     See Boston v.

Talbot, 206 Mass. 82, 92 (1910) (proper termination is "[o]ne of

the conditions" that must be fulfilled before "summary process

may be maintained").   See also New Bedford Hous. Auth. v. Olan,

435 Mass. 364, 373 (2001) (analyzing termination notice as

"prerequisite to filing suit" that may be waived).

    There is a split of authority in the case law of other

States regarding whether a defective notice to quit is

jurisdictional or a condition precedent to bringing suit that

does not deprive the court of jurisdiction.     Compare, e.g.,

Waterbury Twin, LLC v. Renal Treatment Ctrs.-N.E., Inc., 292

Conn. 459, 466 (2009) (defective notice to quit concerns subject

matter jurisdiction), with Sovereen v. Meadows, 595 P.2d 852,

854 n.3 (Utah 1979) (defective notice to quit does not concern

subject matter jurisdiction).     There is also not a great deal of

explanation why different State courts reach the result they do

on the jurisdiction question.     Based on our own analysis of the

legal, practical, and institutional considerations involved, we

conclude that the issue whether a notice to quit is legally

adequate is not jurisdictional.

    We begin by recognizing that this is a question properly

within the Housing Court's general subject matter jurisdiction,
                                                                 14


and indeed one that draws on the Housing Court's knowledge and

expertise.   "Subject matter jurisdiction is jurisdiction over

the nature of the case and the type of relief sought" (quotation

and citation omitted).   Middleborough v. Housing Appeals Comm.,

449 Mass. 514, 520 (2007).   As discussed, a summary process

eviction action is clearly a question at the core of the Housing

Court statute and the relief that the court provides.

    Even where the general subject matter is covered by the

statute, however, the party bringing suit must have standing for

the court to have subject matter jurisdiction.   See HSBC Bank

USA, N.A. v. Matt, 464 Mass. 193, 199 (2013) ("standing is a

question of subject matter jurisdiction").   The standing

requirement exists because "[c]ourts are not established to

enable parties to litigate matters in which they have no

interest affecting their liberty, rights or property," but

rather only those matters in which they have a "definite

interest" such that their "rights will be significantly affected

by a resolution of the contested point" (citations omitted).

Id. at 199, 200.   In Rental Prop. Mgt. Servs. v. Hatcher, 479

Mass. 542, 546-547 (2018) (Hatcher), we found that a litigant

who did not have an ownership, leasehold, or other property

interest in the property at issue had no standing to bring a

summary process action, and therefore we held that the court

lacked subject matter jurisdiction.   Here, by contrast, there is
                                                                  15


no dispute that the landlord had such an interest.   An

inadequate notice would not deprive the landlord of that

interest; rather, it would be a failure of the landlord's prima

facie case.   See, e.g., Middleborough, 449 Mass. at 520-521

("fundability" requirement for administrative permit properly

viewed not as "jurisdictional requirement" for appeal from

permit denial but as "substantive aspect of . . . prima facie

case").   See also Doe, Sex Offender Registry Bd. No. 3974 v. Sex

Offender Registry Bd., 457 Mass. 53, 57 (2010) (Doe No. 3974)

(requirement that board establish residency element of "sex

offender" classification "a question of substance, not subject

matter jurisdiction").   The landlord here thus has standing.

    We also consider the practical and institutional

consequences of treating an inadequate notice to quit as

jurisdictional.   If jurisdiction were in fact dependent on the

adequacy of the notice, the issue would not need to be raised in

the first instance in the Housing Court.   See Hatcher, 479 Mass.

at 547, quoting HSBC Bank USA, N.A., 464 Mass. at 199 ("whenever

a problem of subject matter jurisdiction becomes apparent to a

court, the court has 'both the power and the obligation' to

resolve it, 'regardless [of] whether the issue is raised by the

parties'"); Doe No. 3974, 457 Mass. at 458 ("questions of

subject matter jurisdiction may be raised at any time . . . and

are not waived even when not argued below" [quotations and
                                                                   16


citation omitted]).   This would be inconsistent with both the

timely resolution of landlord-tenant disputes and the importance

of litigating the issue in the first instance in the Housing

Court rather than on appeal.    See Bank of N.Y. v. Bailey, 460

Mass. 327, 333, 334 (2011) (noting that Legislature created

Housing Court as "specialized forum" for housing matters,

specifically to further "just, speedy, and inexpensive"

resolution of summary process cases [citations omitted]).

    Accordingly, we make explicit today that a defective notice

to quit "represents merely the failure to comply with a

condition precedent to suit and cannot properly be said to

affect the court's jurisdiction."   170 W. 85th St. Tenants Ass'n

v. Cruz, 173 A.D.2d 338, 339 (N.Y. 1991).   See Residential

Landlord-Tenant Benchbook 32 (W.E. Hartwell ed., 3d ed. 2013)

(notice to quit requirement is not "'jurisdictional' in

nature").   To clarify further, the legal adequacy of the notice

to quit "is more properly characterized as an element of the

landlord's prima facie case, waivable by the tenant, than as a

part of the subject matter jurisdiction of the court" (citation

omitted).   Priel v. Priel, N.Y. L.J., Mar. 5, 1993, at 25, cols.

3-4 (App. Term Jan. 3, 1992).   Cf. Middleborough, 449 Mass. at

520-521.

    Because we conclude that the adequacy of the notice to quit

requirement of G. L. c. 239, § 1, is not jurisdictional, and the
                                                                    17


issue was not raised below, we therefore decide that the tenant

waived the issue of the adequacy of the notice to quit.

    b.   Legal sufficiency of the notice to quit.     Despite

concluding that the tenant waived the argument, we nonetheless

address the issue whether the landlord substantially complied

with the requirements for a legally adequate notice to quit

because the issue has been fully briefed and merits

clarification.   See Olan, 435 Mass. at 372 (despite waiver of

tenant's challenge to notice to quit, "[b]ecause there is some

uncertainty over the question, because it involves a matter of

public interest that is likely to arise in the future, and where

the issue has been fully briefed, we will address the issue").

    As discussed supra, the lease agreements between the

parties contained several provisions concerning termination.

Because a lease is a contract, Boston Hous. Auth. v. Hemingway,

363 Mass. 184, 198 (1973), its proper interpretation is a

"question of law for the court" (citation omitted).    Freelander

v. G. & K. Realty Corp., 357 Mass. 512, 516 (1970).    Here, we

conclude that the landlord substantially complied with the

notice requirements imposed by the lease with respect to lease

termination.

    Our case law on the adequacy of a notice to quit has long

distinguished between minor errors of technicality or form and

material errors of substance.   See Torrey v. Adams, 254 Mass.
                                                                   18


22, 25-26 (1925) ("Technical accuracy in the wording of such a

notice is not required, but it must be so certain that it cannot

reasonably be misunderstood . . .").   To be defective such that

it fails to terminate a lease, a notice to quit must involve a

material error or omission, i.e., a defect that has some

meaningful practical effect.   Compare, e.g., Steward v. Harding,

2 Gray 335, 335 (1854) (notice defective where it failed to

indicate day on which tenant was to quit), with Clark v.

Keliher, 107 Mass. 406, 409 (1871) (in absence of uncertainty,

notice not defective despite mistake in name of tenant).    In

other words, substantial compliance with statutory or

contractual notice to quit requirements is necessary to effect

lease termination, but minor errors or omissions will not render

the notice to quit defective such that a summary process action

cannot be maintained.   Cf. Bank v. Thermo Elemental, Inc., 451

Mass. 638, 670 (2008) ("[m]inor inaccuracies, omissions, and

errors" in notice required prior to commencing suit under

environmental protection statute does not require dismissal of

action).

    Here, as discussed, the landlord agreed in paragraph 13(e)

of the model lease that it "shall" include specific termination

language in its notice to quit.   This required language,

however, did not accurately convey the landlord's termination
                                                                 19


options under the lease.10   While the landlord failed to include

the specific language, it did more accurately state, "Pursuant

to Paragraph 13 of your Lease, you understood and agreed that

the owner could terminate the tenancy for serious or repeated

violations of lease, and/or other good cause."

     This does not conclude our analysis.   Per the HUD addendum,

the landlord had to provide "the tenant a notification that

specifies the grounds for termination of tenancy."11   A notice to

quit may still be defective if it fails to comply with the


     10The verbatim language required the landlord to represent
that the lease may be "terminated only . . . during the . . .
Successive Term for serious or repeated violations" of the lease
or violations of State and Federal law, and may be terminated
only "at the end of a Successive Term for other good cause"
(emphases added). But paragraph 13(a)(8) of the model lease
also entitled the landlord, under certain circumstances, to
terminate the lease "[d]uring . . . any Successive Term . . .
for 'other good cause'" (emphasis added). While that paragraph
restricted the types of "other good cause" terminations
available to the landlord, paragraph 13(c) went on to provide
that the "other good cause" situations explicitly provided in
the lease were "non-exclusive" examples that "shall in no way be
construed as a limitation on the application of 'other good
cause' to situations not included" in the lease. The verbatim
notice to quit language required by the model lease therefore
required the landlord to represent that its termination options
were more limited than actually was permitted under the
contract.

     11This paragraph closely follows 24 C.F.R. § 982.310(e)(1)
(2016), the HUD regulation -- binding on the landlord by virtue
of paragraph 8(a) of the HUD addendum -- whereby a landlord of a
tenant holding a Section 8 voucher "must give the tenant a
written notice that specifies the grounds for termination of
tenancy during the term of the lease. The tenancy does not
terminate before the owner has given this notice, and the notice
must be given at or before commencement of the eviction action."
                                                                    20


lease's requirement that it be specific.   See, e.g., Residential

Landlord-Tenant Benchbook, supra at 8 (collecting cases where

notice was insufficiently specific).    See also Dejan vs. Storms,

Mass. Hous. Ct., No. 12H84SP0001030 (Boston Div. Apr. 13, 2012)

(dismissing summary process action where notice to quit lacked

"sufficient clarity and specificity" required by HUD-mandated

lease).   Here, the three-page notice to quit gave the tenant

thirty days' advance notice and knowledge that her tenancy was

terminating at the end of the month for detailed conduct that

violated certain accurately referenced lease provisions.      The

notice to quit thus complied with the contractual requirement

that it be specific.

    Under these circumstances, we conclude that the landlord

substantially complied with its notice obligations for purposes

of lease termination.   Therefore, even if the issue had not been

waived, we would have agreed with the Housing Court judge that

the notice to quit was legally sufficient for the landlord to

maintain its summary process action.

    c.    Notice and opportunity to be heard.   Although we

conclude that the court properly had subject matter jurisdiction

over the summary process eviction, we nonetheless must consider

whether, as the tenant argues, she was deprived of her right to

a meaningful opportunity to be heard.   We conclude that the lack

of any advance notice of trial to a self-represented party,
                                                                      21


combined with an improper denial of a continuance provided by a

Housing Court standing order that would have allowed the self-

represented party to obtain full representation at a trial to be

held two weeks later, constituted an abuse of discretion.       We

therefore vacate the Housing Court judge's judgment of November

15, 2016, and remand for a new trial.

    The Housing Court Standing Orders require that "each judge

. . . must, consistent with applicable statutes and the rules of

court, exercise sound judgment in a manner that affords the

parties a fair opportunity to develop and present their claims

to the court."    Housing Court Standing Order 1-04(I) (2004).       In

the Housing Court, where self-representation is common, and thus

the potential for confusion is high, this can be particularly

challenging.     See Hatcher, 479 Mass. at 554 n.11 (in 2017,

ninety-three percent of tenants and thirty-three percent of

landlords in summary process housing cases were self-

represented); I.S.H. v. M.D.B., 83 Mass. App. Ct. 553, 561

(2013) ("our courts have recognized that self-represented

litigants must be provided the opportunity to meaningfully

present claims and defenses").     The volunteer "lawyer for a day"

program created by Housing Court Standing Order 1-01 seeks to

address the challenge and promote the fairness of the process by

allowing self-represented parties to obtain limited

representation from volunteer attorneys.
                                                                  22


     In the instant case, the tenant's ability to have a fair

opportunity to present and develop her claims or defenses was

compromised when she did not receive any notice that a trial on

the merits would occur until the very day -- indeed the very

afternoon -- of the trial, November 10, 2016.   Without further

guidance from the judge, notification of the original trial date

of October 20, 2016, did not provide adequate notice that trial

would occur immediately following the vacating of the default

judgment on a different day, weeks later.   Cf. Konstantopoulos

v. Whately, 384 Mass. 123, 135 (1981) ("oral notice given one

and one-half hours prior to the revocation hearing . . . did not

comport with a rudimentary standard of due process"); Adoption

of Zev, 73 Mass. App. Ct. 905, 906 (2009) (court's unannounced

conversion of pretrial conference concerning termination of

parental rights into trial on merits on same day violated

parent's due process rights).12


     12As mentioned, the notice of the hearing on the tenant's
motion to vacate the default judgment did not indicate that, if
the motion were allowed, the tenant should be prepared to go to
trial the same day. Neither the Uniform Summary Process Rules
nor the Housing Court Standing Orders provides for notice of a
new hearing date to a defendant who has removed a default
judgment. The Uniform Summary Process Rules "provide an
automatic hearing date that can be predetermined and
communicated to the defendant with the summons and complaint."
Commentary to Rule 2 of the Uniform Summary Process Rules,
Massachusetts Rules of Court, at 477 (Thomson Reuters 2018).
See Rule 2(c) of the Uniform Summary Process Rules (1993)
(scheduling hearing for second Thursday after entry date of
                                                                    23


    Although not specifically addressed by the parties, the

tenant's ability to present a meaningful defense was further

compromised by the judge's denial of a continuance, requested

pursuant to the court's standing order, which forced the tenant

immediately to proceed to trial pro se.   As discussed, under

certain circumstances, such a continuance is mandatory under the

Housing Court Standing Orders.   Specifically, Housing Court

Standing Order 1-01(5) provides that if a pro bono attorney in

the "lawyer for a day program" who is "assisting or representing

a pro se litigant in mediation does enter an appearance in that

litigant's action, the litigant shall be entitled to a two (2)

week continuance of trial" (emphasis added).    See Housing Court

Standing Order No. 1-04(V) (same).   The standing order also

provides separately that, if the LDP attorney assisting the

litigant does not enter an appearance, a motion for continuance

"shall be allowed if good cause is shown."     Housing Court

Standing Order 1-01(5).




summary process action); Housing Court Standing Order 1-04(V)
(2004) (declining to issue scheduling orders in summary process
cases and instead referring parties to Uniform Summary Process
Rules to determine hearing date). We recognize, however, that
summary process proceedings are intended to be "just, speedy,
and inexpensive." Rule 1 of the Uniform Summary Process Rules
(1980). Therefore, to prevent unnecessary delay and to provide
proper notice, the Housing Court could, for example, state on
its notice of motion hearing that trial may occur on the same
day if the default is vacated.
                                                                    24


     Here, the lawyer, who was apparently acting pursuant to the

lawyer for a day program, had filled out a notice of limited

appearance form on which she checked the box indicating that she

was representing the tenant on the motion to vacate the default.

She had not, however, checked a different box on the form

entitled "Mediation."    She had nonetheless been involved in

settlement talks and had communicated the existence of these

talks to the judge.     She expressly stated to the judge, "[W]e

are requesting a continuance under the standing order, and we're

willing to enter a full appearance."    Although the form and her

request were not perfectly clear, we infer from them that she

was referencing and relying on the provision of standing order

1-01 providing for the mandatory two-week continuance.

     The judge nonetheless rejected the request, stating that he

would not grant any continuance.13    The attorney then withdrew




     13The judge insisted that the tenant either accept the
landlord's settlement offer or face trial, apparently because he
did not want to inconvenience the landlord's counsel and
witnesses:

          "I'll give you [(the tenant's attorney)] two minutes
     to talk to your client. If not, I'm proceeding with the
     trial. I'm not going to have these people wait here till
     four o'clock today, and at four o'clock you come in saying
     someone will enter an appearance when we're on for . . .
     trial. So the trial's going forward today. . . . I will
     give you a chance to communicate with the tenant as to
     whether she wants to resolve it. If not, I'm proceeding
     with the trial."
                                                                   25


both the continuance motion and her limited appearance.14    The

tenant then immediately had to proceed to trial pro se against

the represented landlord.

     We conclude that the continuance should have been granted

in the instant case.     It appears to have been mandatory pursuant

to the standing order.    The purpose of the continuance in the

standing order is to facilitate representation at trial.

Although the "mediation" box was not checked, the attorney was

assisting in settlement talks and the judge was aware of that

assistance.   Even if the continuance were not mandatory, it was

error to reject the request, as there was good cause shown

because the judge's failure to grant the continuance

significantly compromised the tenant's ability to receive "a

fair opportunity to develop and present [her] claims to the

court."   Housing Court Standing Order 1-04(I).15




     14Housing Court Standing Order 1-10 (2010) provides that
"an attorney shall withdraw" after "completion of the
representation within the scope of a limited appearance"
(emphasis added). After vacating the default judgment,
therefore, the tenant's attorney was obliged to withdraw.

     15While the decision "[w]hether a continuance ought to be
granted commonly rests in the discretion of the trial tribunal"
(citation omitted), Soe, Sex Offender Registry Bd. No. 252997 v.
Sex Offender Registry Bd., 466 Mass. 381, 392 (2013), we have
found the denial of a motion for a continuance improper where
"good cause" existed for its granting, see Monahan v. Washburn,
400 Mass. 126, 129 (1987).
                                                                  26


     In sum, the combination of requiring a self-represented

party to proceed immediately to trial without advance notice and

denying an apparently mandatory continuance that would have

provided the party with counsel at such a trial only two weeks

later constituted an abuse of discretion that deprived the self-

represented party of a meaningful opportunity to develop and

present her claims as provided by the Housing Court Standing

Orders.   See Housing Court Standing Order 1-04(I).   We thus

vacate the judgment and remand for a new trial.

     d.   Appeals bond.   Having decided that the Housing Court

judge erred, we must consider the matter reported to us by the

single justice concerning the tenant's petition for relief under

G. L. c. 211, § 3, from the order of execution that the judge

issued after finding that the tenant had violated a condition of

her appeals bond.   Because we conclude that the judge exceeded

his authority when he placed a nonfinancial condition on the

appeals bond, and then ordered an execution of judgment based on

his determination that the tenant had violated the nonfinancial

condition of the bond, we grant the requested relief and reverse

the execution of judgment ordered by the judge on June 18,

2018.16


     16The single justice reported the petition as one seeking
relief from the Housing Court judge's June 25, 2018, order
denying the tenant's application for a stay of levy. The tenant
                                                                   27


     To obtain review under G. L. c. 211, § 3, a petitioner must

face an "irreparable loss of significant rights" that cannot be

remedied in "the normal course of trial and appeal" (citation

omitted).   DuPont v. Superior Court, 401 Mass. 122, 123 (1987).

Given the unusual procedural posture of this case, and the novel

legal issue presented, we conclude that the requirements of

G. L. c. 211, § 3, are met in the instant case, and that the

petitioner is entitled to relief.

     Here, the tenant complied with the normal procedure of the

appeals bond statute, G. L. c. 239, § 5, and posted the required

bond.17   But the judge then ordered an execution of judgment

based on his determination that the tenant had violated a

condition of the bond requiring the tenant to grant access to

the landlord to make repairs.18   This occurred while the appeal



properly moved first for a stay in the Housing Court under Mass.
R. A. P. 6 (a) (1), as appearing in 454 Mass. 1601 (2009). We
consider the tenant's petition to challenge the validity of the
underlying execution issued on June 18 as a result of the June
12 order.

     17The summary process appeals bond statute requires a
defendant who has lost a summary process case to post bond as a
condition of prosecuting an appeal. G. L. c. 239, § 5 (c). An
indigent tenant with a meritorious appeal can move in the
Housing Court for an appeals bond waiver. Id. at § 5 (e). A
tenant can further appeal from a denial of a waiver or the
amount of any periodic payments to a single justice of the
Appeals Court. Id. at § 5 (f).

     18The landlord argues that the tenant waived her challenge
to the appeals bond by failing to raise it when she appealed
                                                                    28


of the summary process case was pending in this court.     Unless

specifically authorized, the judge had an obligation to refrain

from issuing an order that would "render the appeal moot or

otherwise affect the issues before the appellate court."

Springfield Redev. Auth. v. Garcia, 44 Mass. App. Ct. 432, 435

(1998).   See Rule 11(b) of the Uniform Summary Process Rules

(1980) (applying Mass. R. Civ. P. 62 [d], 365 Mass. 829 [1974],

requiring automatic stay of execution of judgment pending

appeal, to summary process actions).   Here, the judge did not

have the authority to order execution of judgment.

    Specifically, we hold that the plain text of the appeals

bond statute does not authorize the inclusion of nonfinancial

conditions on the bond and the execution of judgment based on

the failure to comply with such nonfinancial conditions.     The

statute states that "the defendant shall . . . give bond in a



from the denial of the bond waiver and the amount of the bond to
the single justice of the Appeals Court. But it is not clear
that the tenant could have raised her challenge when the bond
was first set, because G. L. c. 239, § 5 (f), provides that a
tenant may only challenge the amount of the bond or any periodic
payments and expressly limits the power of a single justice
reviewing the terms of the bond to modifying factual findings or
reducing or rescinding a "bond, deposit or periodic payment."
Regardless, as the nonfinancial bond condition exceeds the
statutory authority of the judge, and thus implicates subject
matter jurisdiction, we may consider it now. See Maxwell v. AIG
Dom. Claims, Inc., 460 Mass. 91, 99 (2011) (challenge to subject
matter jurisdiction can be raised at any point in proceedings).
See also Ryan v. Kehoe, 408 Mass. 636, 641 (1990) ("The
statutory grant of jurisdiction to the Housing Court limits the
court's equity powers to enumerated statutory claims . . .").
                                                                    29


sum as the court orders, payable to the plaintiff," in an amount

"conditioned to pay to the plaintiff . . . all rent accrued at

the date of the bond, all intervening rent, and all damage and

loss which the plaintiff may sustain" while the appeal is

pending (emphasis added).   G. L. c. 239, § 5 (c).   By its plain

text, the statute is clear that a judge may only impose

financial obligations on the appeals bond.    See Camargo's Case,

479 Mass. 492, 498 (2018) (legislative intent may be clear from

"plain and unambiguous" language of statute).    The statute also

provides for an expedited process, including review by a single

justice of the Appeals Court, and dismissal of the case when

these financial conditions are not met.19    Adding nonfinancial

conditions to the appeals bond process, and allowing execution

of judgment based on the failure to comply with such conditions,


     19The statute permits dismissal of an appeal by the trial
court only when a tenant fails to post the initial appeals bond
or use and occupancy payment. See G. L. c. 239 § 5 (h) ("the
appeal from the judgment shall be dismissed" within five days
if, after seeking review of amount of bond or periodic payments
from single justice of Appeals Court, tenant fails to file "the
amount of bond, deposit or periodic payment"). See also PGR
Mgt. Co. v. Credle, 427 Mass. 636, 639 (1998) (as provided by
statute, tenant's appeal properly dismissed through her failure
to file appeals bond). Conversely, "if the defendant posted
bond after losing an appeal of the trial court's denial of
waiver of that bond, execution would continue to be unavailable
pending the completion of the appeal of the underlying judgment
under Rule 62(d)." Commentary to Rule 13 of the Uniform Summary
Process Rules, Massachusetts Rules of Court, at 481 (Thomson
Reuters 2018). Here, the tenant does not challenge the
propriety of the financial conditions on the bond.
                                                                  30


transforms the limited nature and purpose of the appeals bond

statute, generating the type of overlapping trial and appellate

court processes and confusion present here.

    The landlord raises the practical concern that, in the

absence of nonfinancial conditions on an appeals bond, the

landlord would have "no ability" to maintain its property during

the pendency of an appeal.   This is not the case.   The proper

procedure for the landlord to seek this variety of relief would

have been an injunction seeking interlocutory relief while the

appeal was pending.20 Such an injunction could have provided the

landlord with access to the apartment without an automatic

execution.   It would have allowed the landlord to protect its

property and the trial court to act appropriately without

disrupting the case on appeal.   Indeed, while the appeal has

been pending in this court, the landlord has followed this very


    20 If properly requested, an injunction, as the landlord
conceded at oral argument, would be available in these
circumstances. See G. L. c. 185C, § 3 (vesting Housing Court
with equitable jurisdiction); G. L. c. 231, § 117 (Housing Court
may make "proper interlocutory orders, pending . . . appeal,"
including injunctions); Rule 9 of the Uniform Summary Process
Rules (1980) (equitable relief available in summary process
actions); New Bedford Hous. Auth. v. Olan, 435 Mass. 364, 375
(2001) (Sosman, J., concurring) (observing that preliminary
injunctions are available under Rule 9 of Uniform Summary
Process Rules "to prevent the ongoing harm of violence or
threatened violence on public housing premises"); C.F. Downing,
Residential and Commercial Landlord-Tenant Practice in
Massachusetts § 9.8.5 (3d ed. 2016) (describing process for
landlords to obtain injunctions).
                                                                   31


course and obtained an injunction requiring the tenant to permit

the landlord access to the apartment to make repairs.

     We therefore hold that the Housing Court judge's order of

execution of judgment for failure to comply with a nonfinancial

condition of the bond was improper.    Accordingly, we reverse the

June 18, 2018, order of execution.21

     3.   Conclusion.   For the reasons discussed, we vacate the

judgment of November 15, 2016, and remand for a new trial.

Additionally, we reverse the June 18, 2018, order of execution.

                                      So ordered.




     21We thus do not reach the tenant's due process argument
that she should have received a prior adversary hearing to
determine noncompliance with the appeals bond condition. We
deny the landlord's request for attorney's fees because the
tenant's case is not frivolous.
