“Use-and-occupancy” is a common request in landlord/tenant cases, where the tenant is residing in the rental property without paying rent to the landlord while the eviction case is ongoing. Use-and-occupancy payments are “rent” that the tenant pays for the duration of the case. If granted, the court will order the tenant to make monetary payments into an escrow account. These funds are set aside and no party is permitted to touch them until the case is resolved.
While landlords often request use-and-occupancy during an eviction case, few obtain this form of relief. A landlord can certainty obtain a monetary judgment against a tenant after the case is over, if the landlord wins. It becomes tougher, however, for a landlord to obtain use-and-occupancy payments before a case is concluded. Massachusetts eviction law does not expressly allow for use-and-occupancy payments before an eviction is over, and many judges are reluctant to grant this relief.
Landlords who are trying to obtain use-and-occupancy during a landlord/tenant case need to make a strong case for a court to permit this form of relief. A court can sometimes be persuaded to allow use-and-occupancy payments through a preliminary injunction if a landlord can show that it will suffer irreparable harm if the tenants pay no rent through the duration of the case. This, however, is a tough argument to make.
If a landlord cannot obtain use-and-occupancy payments, another option for a landlord in this scenario is to request that the court schedule the trial as soon as possible, so as to avoid delaying the case. Sometimes a court can be pursuaded to move up a trial if one party demonstrates a real need for a quick resolution to the matter.
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