Opinion
19-P-466
01-15-2020
MALDEN REAL ESTATE DEVELOPMENT, LLC v. William M. JORDAN, Third.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff landlord, Malden Real Estate Development, LLC, appeals from a judgment of $918.95 in favor of the defendant tenant, William M. Jordan, Third, after a summary process trial in the Housing Court. Because the judge did not find either that the landlord waived written notice of the termination of the at-will tenancy or facts that would compel that finding, we vacate the judgment and remand for further proceedings.
Under existing law, a tenancy at-will may be terminated "by either party ... in writing for that purpose given to the other party," generally thirty days in advance of termination. G. L. c. 186, § 12. A landlord, however, may waive notice of termination by the tenant. See Gladstone v. Aronson, 277 Mass. 163, 165 (1931). For an at-will tenancy, where the tenant urges termination despite the absence of written notice, "[t]he burden of establishing a waiver of notice is upon the tenant." Leavitt v. Maykel, 210 Mass. 55, 62 (1911).
In determining whether written notice was waived, Massachusetts courts consider whether "the landlord, expressly or by implication, accepted the surrender of the estate." Leavitt, 210 Mass. at 62. Where the tenant vacated the premises and surrendered the keys to the landlord without objection by the landlord, there is sufficient evidence for a finding that the landlord waived notice. See Gladstone, 277 Mass. at 165. In Boynton v. Bodwell, 113 Mass. 531 (1873), the landlord attempted to induce the tenant to remain after the tenant provided defective notice. See id. at 537. Despite the evidence that the landlord did not want the tenancy to end, the trial judge found a waiver of notice when the tenant vacated the premises and returned the keys, because "the plaintiff never objected to the sufficiency of the notice." Id.
Even when the tenant did not surrender the keys, Massachusetts courts have considered other evidence of waiver. In Whitney v. Gordon, 1 Cush. 266 (1848), the tenant's furniture remained on the premises but the evidence was equivocal whether this was because the tenant intended to remain or because the parties contemplated that the furniture would make the premises more attractive for relet. See id. at 269. The Supreme Judicial Court remanded the case, concluding that it was a question of fact whether the furniture was evidence for or against the landlord's waiver of notice. See id. at 270-271.
Here, in "the totality of the circumstances, the [trial judge] [found] that the Tenant ceded possession of the Premises with his final rent payment at the end of January of 2018." The trial judge further found that the tenant's son, who did not live in the premises, "paid rent for the Premises to the Landlord for the months of February of 2018 and March of 2018." The facts that the tenant had vacated the premises and the landlord accepted payments from another is evidence supporting a finding of a waiver of notice, but they do not compel such a finding. See Whitney, 1 Cush. at 269-270. Accordingly, in the absence of further factual findings, we cannot conclude that the judgment was proper.
Conclusion. The judgment is vacated and the case is remanded for further findings on the question whether the landlord explicitly or implicitly waived notice of the termination of the tenancy. Should the judge find such waiver, the judge may reinstate the judgment. Should the judge find that the tenant failed to meet his burden of showing that the landlord so waived notice, the judge should proceed in accordance with this memorandum and order.
So ordered.
vacated and remanded