NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-172

STEVEN COSMOS

vs.

ANTHONY SAVARESE.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Defendant Anthony Savarese, the tenant in this summary 

process action, appeals from a judgment in favor of his 

landlord, plaintiff Steven Cosmos. Savarese argues that the 

summary process complaint erroneously described him as a tenant 

at will and, therefore, was fatally defective. Savarese also 

argues error in the judge's factual findings and in the amount 

of use and occupancy damages awarded. We affirm.

Cosmos is the owner of a three-unit building in Worcester. 

On December 15, 2018, Cosmos entered into an agreement renting 

one of the apartments to Savarese. The agreement stated that it 

was for a term of months ending on June 30, 2020. The agreement 

also included the following renewal provision: "Lessee agrees 

that his/her occupancy of said premises beyond the term of this 

lease shall not be deemed as a renewal of this lease for the 
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whole term but that acceptance by the Lessor of rent accruing 

after the expiration of this lease shall be considered as a 

renewal of this lease for one month only and for successive 

periods of one month only." Savarese remained in the apartment 

after June 30, 2020. On April 9, 2022, at a time when it 

appears that Savarese was current on rent, Cosmos served a nocause, thirty-day notice to quit on Savarese.

On June 10, 2022, Cosmos filed this summary process action 

seeking to recover possession of the premises. The complaint 

stated that Savarese was a tenant at will who had been served 

with notice to quit. A summary process trial was held on August 

11, 2022. At trial, Cosmos testified that he had not received 

rent from Savarese for June, July, or August, effectively since 

serving the no-cause, thirty-day notice to quit on Savarese. 

Savarese acknowledged that he had been "spotty" on paying rent

throughout his tenancy. After trial, the judge issued findings 

and rulings awarding Cosmos possession of the apartment and 

$4,050 in use and occupancy damages for June, July, and August. 

The judge also concluded that Savarese was not entitled to a 

stay of execution under G. L. c. 239, §§ 9, 10, and ordered that 

execution "shall issue no later than ten . . . days after the 

entry of judgment." After the resulting judgment entered, 

Savarese appealed.
3

On appeal, Savarese's primary argument is that he was a 

lessee, not a tenant at will, and that the summary process 

complaint, which described Savarese as a tenant at will, was 

fatally defective. However, at the time Cosmos filed the 

summary process complaint, the original term stated in the lease 

had expired. While the lease also stated that "acceptance by 

the Lessor of rent accruing after the expiration of this lease 

shall be considered as a renewal of this lease for one month 

only and for successive periods of one month only," that 

language did not establish a new lease term. Consequently, a 

tenancy at will resulted when Savarese continued to rent the 

unit. See Farris v. Hershfield, 325 Mass. 176, 177 (1950) ("It 

is an essential element in a lease for a term that there be a 

demise for a period definitely fixed or at least capable of 

definite ascertainment. Otherwise only a tenancy at will 

results").1

Savarese also argues error in the judge's findings that 

Savarese (1) did not file an answer and (2) did not provide any 

testimony regarding how he would pay future rent if a stay of 

execution were to be granted. Even if we assume that these 

findings were erroneous, Savarese has shown no harm requiring 

1 Savarese also argues that he should have received a notice to 

cure any back rent due. This argument is unavailing where the 

thirty-day notice to quit was not based on the nonpayment of 

rent but was a no-cause notice to quit. See G. L. c. 186, § 12.
4

reversal. The judge decided the case on the merits, not due to 

Savarese's purported failure to file an answer. Likewise, 

regardless of whether the judge should have granted a stay of 

execution pursuant to G. L. c. 239, §§ 9, 10, no execution has 

issued during the pendency of this appeal pursuant to Mass. R. 

Civ. P. 62 (d), 365 Mass. 829 (1974), and Savarese has not shown 

that he would have been entitled to any greater relief under 

G. L. c. 239, §§ 9, 10.2

Lastly, Savarese argues error in the amount of use and 

occupancy damages awarded. Savarese acknowledges that he did 

not pay his rent of $1,350 in June, July, and August of 2022,

but argues that (1) he prepaid $1,300 toward last month's rent 

when he signed the lease and (2) the use and occupancy damages 

should have been reduced by that amount. However, nothing in 

the record shows that Savarese raised this argument below, and 

it is therefore waived. See Carey v. New England Organ Bank, 

446 Mass. 270, 285 (2006) ("issue not raised or argued below may 

not be argued for the first time on appeal" [citation omitted]). 

Moreover, it appears that Savarese has remained in the apartment 

2 General Laws c. 239, § 9, authorizes a judge to grant a stay of 

execution "for a period not exceeding six months or for periods 

not exceeding six months in the aggregate, or, for a period not 

exceeding twelve months or for periods not exceeding twelve 

months in the aggregate in the case of premises occupied by a 

handicapped person or an individual sixty years of age or 

older." Here, the appeal has already been pending, and the 

judgment has been stayed, for over one year.
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during the pendency of this appeal. In light of that fact, 

Savarese has not explained why his prepayment of $1,300 toward 

last month's rent should apply toward rent owed for June, July, 

and August of 2022.

Judgment affirmed.

By the Court (Rubin, Neyman & 

Walsh, JJ.3),

Clerk

Entered: December 6, 2023.

3 The panelists are listed in order of seniority.