
    Melissa Brown vs. Joseph A. Perkins, and another
    
    Northern District
    October 11, 2001.
    Present Merrick, EJ., Coven & Curtin, JJ.
    Melissa Brown, pro se.
    Alan H. Aaron for the defendant
    
      
       Christopher Perkins.
    
   Merrick, P.J.

This is a Dist/Mun. Cts. R A D. A, Rule 8A, appeal by defendants Joseph A Perkins and Christopher Perkins (collectively, the ‘Tenant’) of a judgment for possession in this summary process action.

Plaintiff Melissa Brown (the “Landlord”) rented a condominium unit she owns to the Tenant originally under a lease for a term of a year and later under a tenancy at will, which commenced on April 1,2000. In October of 2000, the Landlord decided to sell her unit for financial reasons, and placed it for sale with the condominium properly manager, who was also a broker. The Landlord informed the Tenant of her intent to sell by a letter dated November 2,2000. On November 30,2000, the Landlord sent a formal notice to the Tenant through the properly manager, which read as follows:

November 30,2000
[Tenant’s name and address]
Re: Notice of Termination of Tenancy-At-Will Lease
Dear Mr. Perkins:
As the property manager for your apartment, this letter is intended to give you 60 days notice to terminate your Tenancy-At-Will Lease. Your landlord previously informed you of her intention to sell the apartment The unit will still be sold and we assume it will be owner-occupied. Therefore we’d like to give you as much time as is possible to find a new apartment If you fail to vacate the apartment on or before February 1, 2001,1 shall take due course of law to evict you.
[name of property manager].

The notice is dated November 30,2000, and states that it is intended to give 60 days notice and that the 60 day period expires on or before February 1, 2001, 62 days after the date on the notice. It is undisputed that the notice was not actually received by the Tenant until December 6,2000. This summary process action was commenced by service upon the Tenant on February 2,2001. As noted, judgment for possession was entered for the Landlord, and the Tenant has appealed.

1. The Tenant's initial claim of error arises out of his requests for admissions numbers 7 and 8, to which the Landlord did not respond. The Tenant argues that the trial judge erred in refusing to grant his requests for findings of feet which were based on those unanswered requests for admissions. Requests for admissions 7 and 8 stated, respectively: “Plaintiff is relying on a 60 day notice to terminate in this action,” and “The tenancy agreement requires one party to give the other at least a 90 Day Notice to Terminate.”

It was the Tenants responsibility, as appellant, to prepare and submit the Rule 8A expedited appeal record which is before us. Singer v. DeMartino, 1999 Mass. App. Div. 7, 8 n.1: Rossi v. Oceanview Country Club, 1997 Mass. App. Div. 197, 198. There is nothing in that record which indicates that the Tenant’s requests for admissions were ever introduced into evidence during the trial, as would be necessary for them to he given effect S. Kemble Fischer Realty Trust v. Board of Appeals of Concord, 9 Mass. App. Ct. 477, 478-479 (1980) (requests for admissions must be offered into evidence so that inter alia, a party may seek relief from their effect); Meagher v. United States Fidelity & Guar. Co., 1994 Mass. App. Div. 134, 136.

2. The Tenants principal legal claim on this appeal, which was preserved by requests for rulings of law and motions, is that the commencement of this action on February 2, 2001 was premature under the common law rule incorporated in Uniform Summary Process Rule 2 (b), which states: “service shall not be made prior to the expiration of the tenancy by notice of termination.” See Hodgkins v. Price, 137 Mass. 13, 18 (1884). That assertion depends in turn upon the Tenant's argument that the notice to quit was ineffective to terminate the tenancy on February 1,2001.

The requirements of a notice to terminate a tenancy at will without fault are set forth in G.L.c. 186, §12 and related case law.

The notice to quit is technical, and is well understood; it fixes a time at which the tenant is bound to quit, and the landlord has a right to enter, and a time at which the rent terminates. The rights of both parties are fixed by it, and are dependent upon it ... The lease is ‘determined’ by such notice, properly given, by either party. It is manifest, therefore, that when such consequences depend upon the notice to he given, the notice should fix, with reasonable exactness, the time, at which these consequences may begin to take effect [emphasis supplied].

Currier v. Barker, 68 Mass. (2 Gray) 224, 227 (1854). The notice in the present case states “with reasonable exactness” that the premises must he vacated by February 1,2001. The governing statute, G.L.c. 186, §12, provides:

Estates at will may be determined by either party by three months’ notice in writing for that purpose given to the other party; and, if the rent reserved is payable at periods of less than three months, the time of such notice shall be sufficient if it is equal to the interval between the days of payment or thirty days, whichever is longer.

“[T]he time specified in the notice for the termination must he a rent day.” Connors v. Wick, 317 Mass. 628, 630-631 (1945). Where, as in the instant case, the rent is payable monthly, the statute requires that the notice “must be given a full month prior to the next succeeding rent day.” Id. at 631. For purposes of compliance with the statute, the time period is calculated not from the date of the notice or the date it was delivered, but from the date on which the tenant or his agent received it Hodgkins v. Price, supra at 16-17.

The notice in this case was received by the Tenant on December 6, 2000. The next rent day after a full rental period (January) was February 1, 2001, the date specified in the notice. The notice is in compliance with G.L.c. 186, §12. Although the notice to quit states the termination date of February 1,2001 “with reasonable exactness” and the notice complies with the statute, the Tenant argues that the reference to “60 days” in the notice prevents the notice from being effective until 60 days after December 6,2000, the date it was received. Nothing in the statute or relevant case law supports that interpretation. As long as the notice states the termination date with “reasonable exactness,” the date of receipt by the Tenant is used only to measure compliance with the statute.

Judgment affirmed.

So ordered.

DISSENTING OPINION

Coven, J.

The Majority Opinion, in discounting the Tenant’s argument that the February 2,2001 commencement of this summary process action was premature, relies upon Currier v. Barker, 68 Mass. (2 Gray) 224 (1854). The Majority correctly notes that a notice to quit is both “technical” and fixes three rights; i.e., the notice to quit “fixes a time at which the tenant is hound to quit, and the [time] the landlord has a right to enter, and a time at which the rent terminates.” Id. at 227. The Majority also correctly notes the statement in Currier that the fixation of the time at which the three rights are determined must be “with reasonable exactness.” Id. Yet the Majority Opinion then abandons its own recognition that notices to quit are “technical” and that the determination of the estate must be “with reasonable exactness” and summarily concludes, I believe incorrectly, that the “notice in the present case states ‘with reasonable exactness’ that the premises must be vacated by February 1, 2001 [emphasis added].” The fixation of time at which point there is a determination of rights is not done “with reasonable exactness.” Rather, the designated time falls anywhere between November 30,2001 and February 1,2001, a period of time that covers two rental periods.

Moreover, while I recognize that a date need not be stated in a notice to quit, nowhere have I found that a notice to quit is valid where the date of determination of rights is as selective as it is in this case. Notices, while not declaring a staled date, must be capable of being read as enabling a tenant to discern a “fixed” date. U-Dryvit Auto Rental Co. v. Shaw, 319 Mass. 684, 685 (1946); Sanford v. Harvey, 65 Mass. (11 Cush.) 93, 96 (1853). As stated in U-Dryvik “The date for termination need not be stated as a certain day. It is enough if it is designated in general terms and may be reasonably understood by the landlord and tenant as fixing a day certain [emphasis supplied].” U-Dryvit Auto Rental Co. v. Shaw, supra at 685. A date certain is generally expressed formally in a notice to quit by, as the Appeals Court has noted, the use of the following language: Tt being the intention of the [landlord] to terminate your tenancy, you are hereby notified to quit and deliver up at the expiration of that month of your tenancy which shall begin next after this date, the premises now held by you as tenant...” Hodge v. Klug, 33 Mass. App. Ct. 746, 748 n.3 (1992). See also LoRusso v. Talbot, 1999 Mass. App. Div. 301, 302 n.5 (“The notice to quit is proper on its tace as it notified the Tenant that her tenancy was terminated as of ‘the expiration of that month of your tenancy which shall begin next after this date.’”).

The only date that approaches certainty in the notice in this case is a date marked sixty days into the future from the receipt of the notice by the Tenant The notice sent was ineffective to determine the tenancy and, therefore, the commencement of this summary process action by service of process on the Tenant on February 2,2001 was premature. Accordingly, I respectfully dissent 
      
       Defendant Joseph A Perkins is defendant Christopher Perkins’s father, and simply “cosigned” the original tenancy agreement
     
      
       To the extent that the Tenants notice of appeal refers to requests for rulings of law on other issues, those issues were not briefed and are deemed waived. Dist/ Mun. Cts. R A. D. A., Rule 16(a)(4). See DeVito Auto Restoration v. Card, 2000 Mass. App. Div. 245, 246 n.1.
     