SJC Says Landlords May Recover Possession by Enforcing Voluntary Stipulation Instead of by Separate Summary Process Complaint

Recently, in Dacey v. Burgess, the Supreme Judicial Court held that a landlord may recover possession of a residential unit by enforcing a voluntary agreement to vacate the unit without having to file a separate summary process action. In doing so, the SJC recognized that there may be ways to recover possession of a residential unit other than through summary process, especially when summary process may be unnecessary and wasteful.

The Landlord-Tenant Relationship in Dacey v. Burgess

In Dacey v. Burgess, the tenant rented a two-bedroom apartment from his landlord, Sandy Burgess. The dispute came after the landlord increased the monthly rent and the tenant refused to pay the rent increase. After the tenant failed to pay the rent increase, the landlord gave the tenant a notice to quit and vacate the apartment for nonpayment of rent. The tenant then filed preemptive litigation against the landlord based on an alleged bedbug issue.

Important to the issue in the case, the landlord and tenant entered into mediation and were able to settle. Their settlement was accomplished through a signing of a voluntary stipulation, under which the tenant agreed to vacate the apartment by August 31, 2020.

Despite the tenant’s agreement, the tenant did not leave the apartment on or after August 31, 2020. Instead of filing a summary process action against the tenant, the landlord moved to enforce the voluntary agreement and sought a judgment and execution for possession of the apartment in the original case brought by the tenant. The landlord was successful. Judgment entered against the tenant, and the tenant was required to vacate the apartment. The tenant appealed, and the Supreme Judicial Court took the case from the Massachusetts Appeals Court.

SJC Decides Landlord May Recover Possession by Enforcing Voluntary Stipulation

The issue before the SJC was whether the landlord in this case could recover possession of the apartment by enforcing the voluntary agreement instead of filing a new and separate summary process action. The SJC decided she could.

Landlords and attorneys should understand that summary process proceedings are prerequisites to recovering possession of leased spaces. This requirement comes from Massachusetts General Laws chapter 184, § 18, which says:

No 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.

The plain language of the statute suggests that summary process is not the only way to recover possession. While summary process is most common, the SJC points out that summary process is not the exclusive avenue to recover possession under the statute. In deciding that the landlord could recover possession by enforcing the agreement, the SJC relied on the fact that the parties both agreed to enter mediation, they left mediation having voluntarily settled their claims, and a separate summary process action would have been superfluous because the tenant had voluntarily surrendered the apartment.

Also important to the SJC was the possibility that requiring the landlord to file a summary process action in this case would disincentivize landlords and tenants from entering into mediation to resolve their disputes. If a tenant could renege on and challenge a post-mediation agreement, forcing a landlord to file a summary process action, alternative dispute resolution wouldn’t be an efficient way to resolve landlord-tenant disputes and any settlement agreements entered into thereafter would be worthless.

The Takeaway

The Dacey decision clarifies that a landlord may recover possession of a residential unit by enforcing a voluntary agreement to vacate without having to file a separate summary process action. While summary process remains the most common and streamlined way to resolve landlord-tenant issues, there may be other ways to recover possession when summary process doesn’t make sense. If you’re a landlord and your tenant has either filed preemptive litigation following a notice to quit or you have an agreement in place to resolve past disputes, consider consulting an attorney to discuss whether summary process makes the most sense in your particular circumstance.

If you have any questions about this post or want to consult with Attorney Sammy Nabulsi regarding any of your real estate issues, please feel free to reach out by e-mail at or by phone at (617) 536-0040.