Federal National Mortgage Association v. Gordon ( 2017 )


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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.