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

22-P-86

CANDACE LANGEVIN

vs.

DAWN THERESA BOOTH-DESMARAIS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On November 10, 2020, Candace Langevin (landlord) filed in 

the Housing Court a summary process complaint against her 

daughter, Dawn Booth-Desmarais (tenant). The complaint alleged 

that the tenant failed to vacate after receiving a thirty-day 

notice to quit. The tenant did not file an answer or raise any 

counterclaims. Following a bench trial on February 4, 2021, the 

court entered judgment for the landlord for possession and 

stayed execution until June 1, 2021. We affirm.

Background. As reflected in the trial transcript and the 

judge's findings of fact, the parties did not dispute most of 

the material facts. According to that evidence, the landlord

owned a three bedroom, one bath ranch in Millbury, where she 

lived alone. She was lonely following the death of her husband 

and asked the tenant and her children to live with her. 
2

Converting a garage, the landlord added an additional bedroom 

and bathroom. The tenant and her minor children moved into the 

subject property in July 2017. Through a verbal agreement, the

tenant paid $625 per month. Due to rising costs associated with 

the property, the parties agreed in 2019 to an increased rent of 

$775 per month. The tenant always remained current on the rent 

payments. The landlord split her time between the subject 

property and another property in Florida. By October 2019, the 

landlord lived in Florida and did not return to the subject 

property. After expenses continued to rise, the landlord could 

no longer "afford to keep the house in Millbury." On April 17, 

2020, the landlord served on the tenant a notice to quit the 

premises by June 1, 2020. The tenant acknowledged receiving the 

written notice.

The parties disputed the nature and duration of the 

tenancy. The tenant claimed to have exclusive possession of the 

premises until 2025 when the tenant's daughter graduated from 

high school. According to the landlord, she expected to return 

to the premises from Florida in 2019 for Christmas, but claimed 

that the tenant told her that she "couldn't return to the 

house." The landlord acknowledged promising her grandchildren 

that they could live in the house until 2025 "if the money 

lasted and it hasn't lasted."
3

The judge prepared written findings of fact and conclusions 

of law, concluding:

"The Court finds the parties entered into an oral tenancy 

at will agreement in July of 2017 for $625.00 in monthly 

rent with both parties being able to use the Premises. A 

new oral tenancy at will was established in Fall of 2019 

for $775.00 in monthly rent. The Plaintiff properly 

terminated this oral tenancy at will and is entitled to 

possession."

The judge stayed execution until June 1, 2021, to enable the 

tenant's children to finish the academic year and to provide the 

tenant sufficient time to secure a new residence.

Discussion. On appeal, the tenant raises the following 

claims supported by numerous materials that were not presented 

at trial: (1) a signed lease allows her to remain on the 

property until 2025; (2) she agreed to the rent increase because 

the landlord agreed to allow her to remain on the property until 

2025; (3) the property has been subject to extensive flooding; 

(4) her children deserve to stay in a secure and healthy home 

until the date agreed upon; (5) the residence contains extensive 

mold, mildew, and other microorganisms; (6) a massive sewer leak 

occurred on the premises in May 2021; (7) the landlord has taken 

no steps to clean up the sewer leak as required by the town; (8) 

the property has a massive rodent and insect problem; (9) the 

landlord has people harass the tenant by driving by and making 

hang up calls; (10) the landlord has sufficient money to 

maintain the property; (11) the tenant and her children have 
4

suffered great medical and respiratory stress due to the 

condition of the property; (12) the tenant cannot afford to live 

anywhere but on the streets; and (13) the landlord was dishonest 

with the realtor about property defects. In addition to these 

claims, the tenant has included a prayer for relief that 

includes allowing the tenant to remain on the property until the 

summer of 2025, ordering the landlord to remedy all sanitary 

code violations, and awarding damages approaching $5 million.

With the exception of the claim about the duration of the 

tenancy, all the claims raised by the tenant are being asserted 

for the first time on appeal. Despite having opportunities to 

do so, the tenant did not file an answer or counterclaim in the 

Housing Court and did not introduce any exhibits at trial. See 

Rule 3 of the Uniform Summary Process Rules (1993) ("defendant 

shall . . . state in the answer any affirmative defenses which 

may be asserted"); Rule 5 of the Uniform Summary Process Rules

(1980) ("right to counterclaim shall be deemed to be waived as 

to the pending action if such a claim is not filed with the 

answer . . . unless the court shall otherwise order on motion 

for cause shown"). By raising the claims for the first time on 

appeal, the tenant deprived the trial judge of the ability to 

review the claims and deprived the landlord of a fair 

opportunity to challenge the claims. "An issue not raised or 

argued below may not be argued for the first time on appeal." 
5

Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol 

County, N.A., 405 Mass. 420, 421 n.2 (1989). See Adjartey v. 

Central Div. of the Hous. Court Dep't, 481 Mass. 830, 855 (2019)

("tenant must generally assert any affirmative defenses and 

counterclaims in the answer"). The tenant's pro se status does 

not excuse the waiver of these claims because pro se litigants 

"are held to the same standards as litigants who are represented 

by counsel." Davis v. Tabachnick, 425 Mass. 1010, 1010, cert. 

denied, 522 U.S. 982 (1997). A pro se defendant is expected "to 

understand and set forth his or her legal rights, or risk 

waiving them." Adjartey, 481 Mass. at 855. Therefore, we do 

not consider these belated and new claims.

As to the claim about the duration of the tenancy, we 

discern no error in the judge's conclusion that the landlord was 

entitled to possession of the premises after properly 

terminating a tenancy at will. "When reviewing the decision of 

a trial judge in a summary process action, 'we accept [the 

judge's] findings of fact as true unless they are clearly 

erroneous,' but 'we scrutinize without deference the legal 

standard which the judge applied to the facts." Cambridge St. 

Realty, LLC v. Stewart, 481 Mass. 121, 123 (2018), quoting 

Andover Hous. Auth. v. Shkolnik, 443 Mass. 300, 306 (2005).

Undisputed testimony at trial showed that the parties agreed to 

rent the premises for $625 per month and later agreed to $775 
6

per month. The parties stipulated that the tenant remained 

current on the agreed rent payments and had lawful possession of 

the premises before receiving the notice to quit. Based upon 

this evidence, the judge could conclude that a tenancy at will 

existed. See Mastrullo v. Ryan, 328 Mass. 621, 624 (1952) ("If 

there is nothing more than payment and acceptance, a tenancy at 

will is created"); Belizaire v. Furr, 88 Mass. App. Ct. 299, 303

(2015) ("There are two essential requirements for the creation 

of . . . a tenancy [at will]: first, a contractual agreement 

between the landlord and the tenant, and second, that the tenant 

exclusively occupy the premises"). Because the tenant 

acknowledged that she received the notice to quit, the judge 

could further conclude that the landlord provided the proper 

notice and was entitled to possession of the premises. See 

Williams v. Seder, 306 Mass. 134, 137 (1940) (tenancy at will 

"could be terminated by a written notice in accordance with 

[G. L. c. 186, § 12]").

Based upon the evidence presented, the judge properly 

declined to accept the tenant's claim that the landlord promised

in 2017 to rent the premises to the tenant until 2025. "Any 

promise involving real property is enforceable only if that 

promise meets the [writing] requirements of the Statue of 

Frauds, G. L. c. 259, § 1." Schwanbeck v. Federal-Mogul Corp., 

412 Mass. 703, 709 (1992). "An estate or interest in land 
7

created without an instrument in writing signed by the grantor 

or by his attorney shall have the force and effect of an estate 

at will only, and no estate or interest in land shall be 

assigned, granted or surrendered unless by such writing or by 

operation of law." G. L. c. 183, § 3. The tenant claimed that 

the night before the trial she found a "standard residential 

lease" form that contained the terms of the parties' rental 

agreement. The judge asked the tenant, "what's the term of it?" 

Reading from the document, the tenant replied that the lease was 

to begin on September 1, 2017, "and shall end on blank." Upon 

questioning from the judge, the tenant acknowledged that the 

document also required a rental payment of $1,400. The tenant 

further acknowledged that the parties never performed according 

to the terms of the document. As the tenant put it, "that's 

what she wanted, and I was like yeah, we can't do that." Thus, 

the record supports the judge's conclusion that the landlord
8

properly terminated the tenancy at will and was entitled to 

possession of the premises.

Judgment affirmed.

By the Court (Neyman, Sacks & 

Hodgens, JJ.1),

Clerk

Entered: May 4, 2023.

1 The panelists are listed in order of seniority.