This blog post was written by Andrew Bardetti a third year student at Northeastern University School of Law and a Program on Human Rights and the Global Economy (PHRGE) Fellow with the Elder Abuse Prevention Project
Four years ago, Ms. Smith, now seventy-eight, came in from the cold and requested a room at the hotel. Without signing any papers, the hotel offered her an extended stay at a discounted rate. Now the hotel is threatening to remove her without notice because the original below market offer is costing them profits. Meanwhile, Mr. Crane, age seventy-two, and his partner had a room at an extended stay hotel for the last seven months. When his partner inexplicably left, he could not afford the daily rate. Unlike Ms. Smith, the extended stay hotel sought to remove Mr. Crane by sending him a notice to quit.
In the past few months, the Elder Abuse Prevention Project has worked on a few cases similar to Ms. Smith and Mr. Crane. Currently, for those displaced from their homes and looking for a replacement that same day, there are few options beyond shelters like the Pine Street Inn. However, the transition from the home you were living in for the last few decades to a shelter which requires you to leave every day is far from conducive for persons vulnerable due to aging. In the midst of this dire need for affordable housing, Ms. Smith and Mr. Crane turn to extended stay hotels which drain limited resources and do not provide a typical tenancy arrangement. Yet would they ever qualify for the protections typically afforded tenants?
Historically, a tenant is different from a guest (or lodger) because “only the tenant has an interest in the land.” A guest is more transient in nature, with “but a passing interest in the use of the premises and has relatively free access to other temporary quarters.” Generally, “hotel guests are traditionally considered licensees and not tenants.” The relevant landlord-tenant statutes reinforce this distinction as hotel guests are specifically excluded from statutory notice requirements, protections against invasion of quiet enjoyment, and defenses and counterclaims in summary process actions.
In jury instructions distinguishing a tenant relationship from a licensor-licensee relationship, retired Judge E. George Daher notes “the law provides that several different factors can be considered” when determining the existence of a tenancy. These include “(1) whether consideration – ‘usually the payment of rent’ – was given for the tenancy; (2) the intent of the parties; (3) the language of any agreement; and (4) the extent of the parties’ control over the premises.” Consideration and the extent of the parties’ control, referred to as exclusive possession, are two pivotal factors in determining whether a hotel guest could become a tenant at will.
A tenancy at will “arises out of an agreement, express or implied, by which one uses and occupies the premises of another for a consideration – usually the payment of rent.” Further, “any consideration is sufficient to support a contract is all that is required to constitute an agreement from which a tenancy may result.” What constitutes sufficient consideration and possession? In one case, an oral agreement with payment of residential taxes, homeowners’ insurance, and utility bills was sufficient consideration. However, two payments for utility bills and use of a “playroom area” were inadequate consideration. Likewise, no payments were inadequate consideration and, because the defendant resided with his mother, no exclusive possession existed either. So long as a hotel guest pays for the room, consideration should be satisfied but typically a hotel guest does not have exclusive possession because “[t]he immediate control and the supervision of all parts of the premises are retained by the” hotel. The consequence of finding no tenancy at will is that a notice to quit is sufficient judicial process to remove a hotel guest from their room.
Even with a broad interpretation of the housing statutes, hotel guests are unlikely to be afforded additional judicial process absent consideration and exclusive possession. In Serreze v. YWCA of Western Massachusetts, Inc., plaintiffs were in a transitional living program for battered women and their children. Defendants attempted to remove them by issuing a thirty day notice and subsequently changing the locks. Plaintiffs claimed they were unlawfully evicted without judicial process and, unlike Ms. Smith and Mr. Crane, had written agreements for an apartment which granted them exclusive right of possession and control. The Massachusetts Appeals Court held that a tenancy did exist yet recognized that the existence of one was not dispositive for the protections and remedies of § 14 to apply. The court based its reasoning on broad terms in the statute such as “any residential premises” and “occupant” to remark that a self-help eviction in these circumstances would constitute breach of quiet enjoyment. While these terms could encompass a hotel guest, the situation in Serreze is distinguishable from hotel guests like Ms. Smith and Mr. Crane because they are not granted exclusive possession of the room.
Massachusetts simply does not have enough resources and protections in place to assist vulnerable persons when they are displaced from their homes. Further, courts may be wary of finding extended stays in hotels are tenancies because it would obviate the difference between tenants and licensees. Despite the lack of a tenancy, persons vulnerable due to aging are spending what limited resources they have on extended stay hotels because the shelter either cannot house them or it is a traumatic place for them to stay. Extended stay hotels are merely a band aid for a larger systemic issue – a lack of affordable housing options. Massachusetts must do more to transition vulnerable older persons to affordable housing options.
 Tenant, Lodger, and Guest: Questionable Categories for Modern Rental Occupants, 64 Yale L.J. 391, 396 (January, 1955).
 Id. at 402.
 Hon. David D. Kerman, Bench Memorandum for Residential Summary Process Cases I (15), (2016).
 M.G.L. c. 186, § 13, 14, and c. 239 § 8A. But see Serreze v. YWCA of Western Massachusetts, Inc., 30 Mass. App. Ct. 639, 643 (1991) (those outside of a classic tenancy may avail themselves of § 14 protections).
 33 Mass. Prac., Landlord and Tenant Law § 1:6 (3d ed.) (September 2017).
 Williams v. Seder, 306 Mass. 134, 136 (1940).
 Story v. Lyon Realty Corp., 308 Mass. 66, 70 (1941).
 Ducker v. Ducker, 1997 Mass. App. Div. 147, 149 (1997) (oral agreement and payment of residential taxes, homeowners’ insurance, and utility bills sufficient consideration for creation of tenancy)
 Griffin v. Cogliano, 2002 Mass. App. Div. 55, *4-5 (2002) (two payments for utility bills and use of a “playroom area” was inadequate consideration)
 Lavelle v. Lavelle, 2012 Mass. App. Div. 150, *2 (2012) (no consideration because no payments and no exclusive possession because defendant resided with mother)
 Assessors of Everett v. Albert N. Parlin House, Inc., 331 Mass. 359, 362 (1954) (charitable corporation considered in possession of rooming house).
 See Lavelle at *2 citing West v. First Agr. Bank, 382 Mass. 534 (1981) (superseded by statute on different grounds).
 Serreze, 30 Mass. App. Ct at 644.
 Id. at 643.