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Housing Court Judge ANNE KENNEY CHAPLIN, cases from 2013 to mid-2014

Docket No.:CIVIL ACTION NO. 13H84CV000237
Parties:ERIN K. SCHAEFER, Plaintiff VS FRANCINE PILGRIM a/k/a FRANCINE PILGRIM PELLEGRINO, Defendants
Judge:/s/
Date:May 28, 2013
BOSTON DIVISION
MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION TO DISMISS
The plaintiff (the “tenant”) commenced this action against the defendant (the “landlord”) asserting a number of claims for damages arising from a residential tenancy. The tenant filed an answer that included counterclaims against the landlord. This matter came before the court for hearing on the tenant’s Motion to Dismiss the landlord’s counterclaims alleging violation of G.L. c. 258, c. 93, c. 93A , c. 186, s. 14, c. 265 and for defamation. The defendant argues that these counterclaims fail to state claims upon which relief can be granted. For the reasons set forth herein the tenant’s Motion to Dismiss is ALLOWED.
When considering the sufficiency of a complaint on a motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(6), the court must accept as true the factual allegations set forth in the complaint, as well as any inferences favorable to the plaintiff that can be drawn from those facts. Eyal v. Helen Broadcasting Corp., 411 Mass. 426, 429 (1991). The factual allegations, stripped of “labels and conclusions,” are assumed to be true “even if doubtful in fact.” Iannacchino v. Ford Motor Company, 451 Mass. 623, 636, (2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1966, 167 L.Ed.2d 929 (1977)). A complaint is sufficient, however, only if those “factual allegations plausibly suggest[ (not merely consistent with) an entitlement to relief, in order to
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reflect[ ] the threshold requirement of [Mass. R. Civ. P. 8(a)(1)] that the ‘plain statement’ possess enough heft to sho[w] that the pleader is entitled to relief.” Id. (internal quotations omitted); see also Flomenbaum v. Commonwealth, 451 Mass. 740, 751, n. 12, (2008) (“to survive a motion to dismiss, a complaint must contain factual allegations ‘enough to raise a right to relief above the speculative level … on the assumption that all the allegations in the complaint are true.”).
First, a landlord cannot bring a claim against a private person or party (here the claim is that the tenant’s complaint is frivolous or that the tenant is acting in bad faith) under the state tort claims act, G.L. c. 258. That statutory cause of action is reserved for negligence claims brought against a governmental entity. Second, the legislature, in enacting G.L. c. 186, s. 14, imposed duties and obligations on landlords, and provided residential tenants or “occupants” with a cause of action and remedies where a landlord has breached those duties or obligations. However, the statute does not impose any duties or obligations on residential tenants or occupants, and does not provide a landlord with a statutory cause of action or remedy where a tenant may have engaged in conduct that interfered with the landlord’s right to quiet enjoyment . Third, a private residential tenant is not a person engaged in trade or commerce with respect to that tenancy within the meaning of G.L. c. 93 and 93A. Accordingly, a landlord may not assert a claim against a private residential tenant under the consumer protection act. Finally, G.L. c. 265, s. 1, et seq. (crimes against the person) does not afford any person with a civil cause of action. Therefore, the tenant’s statutory counterclaims must be dismissed because they fail to state claims upon which relief can be granted.
With respect to the landlord’s claim of defamation, her complaint fails to allege that any purportedly false or malicious statement made by the tenant was heard or read by anyone other than the landlord. Publication is an essential element of the claim of defamation. Accordingly, the tenant’s defamation counterclaim must be dismissed because it fails to state a claim upon which relief can be granted.
The landlord’s remaining allegations do not set forth with even minimal clarity any other counterclaims she might have against the tenant. I shall afford the landlord thirty (30) days from the date of this order to file an amended counterclaim in which she
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may assert specific claims against the tenant based upon specific facts (that she must set forth in the amended pleading) arising from the tenancy.
SO ORDERED.
/s/
May 28, 2013
cc: John A. Mangones, Esquire
Francine Pilgrim Pellegrino
Docket No.:Docket No. 13-SP-05323
Parties:Donald Moniz, PLAINTIFF v. Maria F. Brandao, DEFENDANT
Judge:/s/ ANNE KENNEY CHAPLIN
Date:December 16, 2013
SOUTHEASTERN DIVISION
FINDINGS OF FACT, RULINGS OF LAW, AND ORDER FOR JUDGMENT
This is a summary process action in which the plaintiff seeks to recover possession of the
premises from the defendant and damages for unpaid rent. The defendant filed a written answer
and counterclaims.
Based upon all the credible testimony and evidence presented at trial, and the reasonable
inferences drawn therefrom, the Court finds as follows:
The defendant, Maria F. Brandao, has resided at 82 Central Avenue, New Bedford, MA
(“the premises”) as a tenant at will for 15 years. The plaintiff, Donald Moniz, is the owner of the
premises and is the defendant’s landlord. The rent for the premises is $500.00 per month and is
due on the first day of each month. The defendant has failed to pay the plaintiff any rent for the
months of September 2013 through December 2013, owes a balance of $200.00 for the month of
August 2013, owes a balance of $100.00 for the month of July 2013, and currently owes the
plaintiff a total of $2,300.00 in unpaid rent.
The Court finds that, on October 21, 2013, the plaintiff served the defendant with a
legally sufficient 14 Day Notice To Quit for Non-Payment of Rent.
The defendant filed a written answer and counterclaims based on breach of the implied
warranty of habitability and violations of G.L. c. 239, §2A and G.L. c. 186, §18.
G.L. c. 239, §8A provides that where a tenancy has been terminated for non-payment of
rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or
counterclaim “any claim against the plaintiff relating to or arising out of such property, rental,
tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental
agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon
the condition of the premises or services provided to the premises by the landlord, the tenant is
entitled to relief under this section only if: (1) the landlord knew or should have known of the
condition before the tenant was in arrears in his rent; (2) the landlord does not show that the
tenant caused the condition; and (3) the landlord does not show that the conditions cannot be
remedied unless the premises are vacated.
The defendant testified that she has lived in the premises for 15 years, and that the
plaintiff has not “fixed anything since I moved in.” She testified that there are defective outlets
in the bathroom, in her son’s bedroom and in the kitchen, and that the ceiling lights have no
cover. She testified that she notified the plaintiff of these conditions “years ago.” She testified
that the toilet leaks and that she notified the plaintiff of this condition “years ago.” She testified
that, more than two (2) months ago, she notified the plaintiff that there are mice in the premises,
and that his response was, “We all have them.” She testified that she called the City of New
Bedford Health Department, Environmental Division (“Health Department”), and that the Health
Department inspected the premises.
The Court finds that, on November 20, 2013, the Health Department inspected the
premises and found the following conditions: “Electric socket cover broken in bedroom. 2
broken electric sockets in kitchen. Leak under sink causing deteriorating wood. No electric
socket provided in bathroom. Light fixture in living room is not operating properly. Ceiling in
dining room is damp and has water damage. Hole in wall in kitchen.”
The plaintiff testified that he has owned the building in which the premises is located for
approximately 20 years. He testified that, in early August 2013, the defendant notified him that
there were mice in the premises. He testified that he put traps and bait in the basement, sealed
the cracks in the foundation of the building and on the walkway and patio that abuts the
foundation wall, and installed a new basement door, in order to seal out any entrance that mice
could use. He testified that the defendant had never previously notified him of any mice in the
premises. He testified that the defendant never notified him of any of the other conditions in the
premises, and that the first notice he had of these conditions was when he received the Health
Department Report on November 22, 2013. He testified that, on November 30, 2013, he went to
the premises with an electrician and a carpenter, and that the defendant allowed the electrician
and the carpenter to enter the premises and inspect the conditions listed in the Health Department
Report. He testified that the carpenter informed the defendant that the bathroom floor needed to
be replaced, and that it was a two (2) day job. He testified that he asked the defendant for a key
to the premises so that he could perform the work, and that she refused to give him a key because
she works during the day and was not comfortable giving him a key.
The Court credits the plaintiff’s testimony on these issues.
The Court finds that the presence of mice in the premises and the conditions listed in the
November 20, 2013 Health Department Report are conditions which constitute material breaches
of the implied warranty of habitability . Boston Housing Authority v. Hemingway, 363 Mass.
184, 200-201 (1973). Accordingly, the Court finds that the defendant is entitled to damages
under G.L. c. 239, §8A based on these conditions.
The Court finds that there was no credible evidence at trial that the plaintiff knew or
should have known of the presence of mice in the premises prior to August 2013, and no credible
evidence that he knew or should have known of the conditions listed in the November 20, 2013
Health Department Report prior to receiving the Report on November 22, 2013. The Court finds
that, since the defendant was already in arrears in her rent at the time the plaintiff learned of these
conditions, the defendant is not entitled to a defense to possession under G.L. c. 239, §8A.
The measure of damages for breach of the implied warranty of habitability is the
difference between the fair rental value of the premises free of defects and the fair rental value of
the premises during the period in which the defective conditions existed. The Court finds that
the fair rental value of the premises during the defendant’s tenancy is $500.00 per month. The
Court finds that the defendant is entitled to the following rent abatements: (1) for the mice in the
premises for the 112 day period between August 1, 2013 and November 20, 2013, (15%), and
(2) for the conditions listed in the November 20, 2013 Health Department Report for the 15 day
period between November 22, 2013 and December 6, 2013 (10%), calculated as follows:
($16.44/day x 15% = $2.47 x 112 = $276.64) + ($16.44/day x 10% = $1.64 x 15 = $24.60) =
$301.24.
In her written answer and counterclaims, the defendant contends that the plaintiff violated
the provisions of G.L. c. 239, §2A and G.L. c. 186, §18.
G.L. c. 239, §2A provides, in pertinent part: “It shall be a defense to an action for
summary process that such action or the preceding action of terminating the tenant’s tenancy,
was taken against the tenant for the tenant’s act of commencing, proceeding with, or obtaining
relief in any judicial or administrative action the purpose of which action was to obtain damages
under or otherwise enforce, any federal, state or local law, regulation, by-law, or ordinance,
which has as its objective the regulation of residential premises, or…reporting a violation or
suspected violation of law as provided in section eighteen of chapter one hundred and eighty-
six….The commencement of such action against a tenant, or the sending of a notice to quit upon
which the summary process action is based…within six months after the tenant has commenced,
proceeded with or obtained relief in such action, (or)..made such report..shall create a rebuttable
presumption that such summary process is a reprisal against the tenant for engaging in such
activities…Such presumption may be rebutted only by clear and convincing evidence that such
action was not a reprisal against the tenant, and that the plaintiff had sufficient independent
justification for taking such action, and would have in fact taken such action, in the same manner
and at the same time the action was taken, even if the tenant had not…engaged in such activity.”
The defendant testified that the plaintiff served her with a Notice To Quit because she
notified him that she was withholding her rent due to the mice in the premises. The plaintiff
testified that the defendant asked him to give her an eviction notice because she was three (3)
months behind in her rent, and needed it to request assistance in paying the arrears. He testified
that, after he had done so, she informed him that the letter was “not good enough,” and told him
to take her “to court.” He testified that he decided to evict the defendant because “I’m tired of
chasing her for the rent.” The Court credits the plaintiff’s testimony on this issue.
The Court finds that the defendant is entitled to the statutory presumption of retaliation
under G.L. c. 239, §2A. The Court finds, on the facts of this case, that the plaintiff has
established with clear and convincing evidence that he did not retaliate against the defendant.
The Court finds that the plaintiff’s sole reason for serving the Notice To Quit on the defendant on
October 21, 2013 was that the defendant was in arrears in her rent. The Court finds that the
plaintiff had sufficient independent justification for serving the October 21, 2013 Notice To Quit,
and would have in fact taken this action, in the same manner and at the same time the action was
taken, even if the defendant had not engaged in statutorily protected activity within six (6)
months of the service of the Notice To Quit which forms the basis of this action. Accordingly,
the Court finds that the defendant is not entitled to a defense to possession under G.L. c. 239,
§2A.
G.L. c. 186, §18 provides, in pertinent part: “Any person or agent thereof who threatens
to or takes reprisals against any tenant of residential premises for the tenant’s act of,
commencing, proceeding with, or obtaining relief in any judicial or administrative action the
purpose of which action is to obtain damages under, or otherwise enforce, any federal, state or
local law, regulation, by-law or ordinance, which has as its objective the regulation of residential
premises; or exercising the tenant’s rights pursuant to section one hundred and twenty-four D of
chapter one hundred and sixty-four; or reporting to the board of health or … shall be liable for
damages which shall not be less than one month’s rent or more than three month’s rent, or the
actual damages sustained by the tenant, whichever is greater, and the costs of the suit, including a
reasonable attorney’s fee.
“The receipt of any notice of termination of tenancy, except for nonpayment of rent, or, of
increase in rent, or, of any substantial alteration in the terms of tenancy within six months after
the tenant has commenced, proceeded with, or obtained relief in such action, exercised such
rights, made such report or complaint, … shall create a rebuttable presumption that such notice or
other action is a reprisal against the tenant for engaging in such activities. Such presumption
shall be rebutted only by clear and convincing evidence that such person’s action was not a
reprisal against the tenant and that such person had sufficient independent justification for taking
such action, and would have in fact taken such action, in the same manner and at the same time
the action was taken, regardless of tenants engaging in, or the belief that tenants had engaged in,
activities protected under this section.”
The Court finds that, since the Notice To Quit which forms the basis for this action was
for non-payment of rent, the defendant is not entitled to the statutory presumption of retaliation
under G.L. c. 186, §18. The Court finds, on the facts of this case, that the defendant has not
shown by a preponderance of the evidence that the plaintiff’s act of serving the defendant with
the Notice To Quit which forms the basis for this action constitutes a reprisal for her action in
engaging in statutorily protected activity. Accordingly, the Court finds that the defendant is not
entitled to damages under G.L. c. 186, §18 based on this claim.
ORDER FOR JUDGMENT
Based upon all the credible testimony and evidence presented at trial in light of the
governing law, it is ORDERED that:
1. Judgment enter for the plaintiff for possession of the premises and damages for unpaid
rent in the amount of $2,300.00, plus costs in the amount of $170.00, a total of $2,470.00.
2. Judgment enter for the defendant on her counterclaim for breach of the implied
warranty of habitability in the amount of $301.24.
3. Judgment enter for the plaintiff on the defendant’s remaining counterclaims.
4. The foregoing order for judgment paragraphs 1 through 3 result in a net judgment for
the plaintiff for damages in the amount of $1,998.76, plus costs in the amount of $170.00, a total of $2,168.76.
5. Execution issue ten (10) days after the date that judgment enters.
/s/ ANNE KENNEY CHAPLIN
FIRST JUSTICE
December 16, 2013

 

Docket No.:Docket No. 12-SP-05193
Parties:711 Realty Co., Inc., PLAINTIFF v. Marissa Frame, DEFENDANT
Judge:/s/ ANNE KENNEY CHAPLIN
Date:May 3, 2013
SOUTHEASTERN DIVISION
ORDER
After hearing on the outstanding post-trial Motions in this action, the Court rules as follows:
1. The defendant’s Motion To Waive Appeal Bond and Other Costs. The Court finds that the defendant is indigent within the meaning of G.L. c. 261, s.27A. At the hearing on this Motion, the issues which the defendant articulated as grounds for her appeal are that her SSI benefits were lowered unexpectedly as the rent went up, and that there are defective conditions in the premises for which she withheld rent. The Court finds that the defendant’s financial hardship does not constitute a non-frivolous defense to this action. The Court finds that there was no evidence at trial on the issue of any breach of the implied warranty of habitability. The Court finds that a new legal theory of defense cannot be raised for the first time on appeal. Accordingly, in all of the circumstances of this case, the Court finds that the defendant does not have a non-frivolous defense to this action within the meaning of G.L. c. 239, s.5.
For these reasons, the defendant’s Motion To Waive Appeal Bond and Other Costs is DENIED. Within seven (7) days of the date of this Order, as a condition for the entry of this action in the Appeals Court, the defendant shall deposit with the Clerk of Court such bond in the amount of $2,085.00, which represents the amount of the judgment in this action, plus costs in the amount of $170.00, a total of $2,255.00, with such surety or sureties approved by the Court, or secured by cash or its equivalent.
As a further condition of the appeal, the defendant shall pay use and occupancy to the plaintiff on the first day of each month during which the appeal is pending in the amount of $695.00 per month, beginning June 1, 2013, which represents the monthly use and occupancy for the premises, and shall pay the plaintiff $695.00 on May 15, 2013 for use and occupancy for the month of May, 2013.
2. The Plaintiff’s Motion To Dismiss Appeal and Issue Execution. The plaintiff contends that the defendant’s appeal should be dismissed because the issues the defendant seeks to raise on appeal are frivolous. In light of the Court’s ruling on the defendant’s Motion To Waive Appeal Bond and Other Costs supra, the Court takes no action on this Motion.
/s/ ANNE KENNEY CHAPLIN
FIRST JUSTICE
May 3, 2013

 

Docket No.:Docket No. 12-SP-05523
Parties:Donnie Souza, PLAINTIFF v. Tanisha Williams, DEFENDANT
Judge:/s/ ANNE KENNEY CHAPLIN
Date:January 23, 2013
SOUTHEASTERN DIVISION
FINDINGS OF FACT, RULINGS OF LAW, AND ORDER FOR JUDGMENT
This is a summary process action in which the plaintiff seeks to recover possession of the premises from the defendant and damages for unpaid rent.
Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds as follows:
The defendant, Tanisha Williams, has resided at 102 Kellogg Street, Apt. 3, Fall River, MA, (“the premises”) as a tenant at all times relevant to this action. The plaintiff, Donnie Souza, is the owner of the premises and is the defendant’s landlord.
The defendant testified that, in June or July, 2012, she executed a lease with the plaintiff. The plaintiff testified that he never entered into a lease with the defendant. The Court credits the plaintiff’s testimony on this issue, and finds that the defendant is a tenant at will.
The plaintiff testified that the rent for the premises had been $500.00 per month and is due during the first week of the month. He testified that, in June 2012 or July 2012, he notified the defendant in writing that the rent would be increased to $700.00 per month at some unspecified time. The Court credits this testimony. However, the Court finds that the written notice of rent increase did not terminate the defendant’s tenancy with an offer to enter into a new tenancy at an increased rent, and finds that there was no evidence at trial that the defendant agreed to the rent increase. Accordingly, the Court finds that the rent for the premises remains at $500.00 per month. Guarino v. Donovan, Boston Housing Court No. 02-SP-03828 (Chaplin, J., September 24, 2012). The Court finds that the rent is due on the first day of each month, no later than the seventh day of each month.
The parties stipulated that the defendant has failed to pay the plaintiff any rent for the months of July 2012 through January 2012. Accordingly, the Court finds that the defendant currently owes the plaintiff a total of $3,500.00 in unpaid rent.
The Court finds that, on September 16, 2012, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Quit for non-payment of rent.
G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.”
At trial, the defendant testified that the plaintiff entered the premises without notice “numerous times,” by using his key. She testified that, on one (1) occasion, she was in bed at the time the plaintiff entered the premises. Robert Pina testified that he is a friend of the defendant and that, on this occasion, he was in another room in the premises, and observed the plaintiff enter the premises without notice and go into the defendant’s bedroom. He testified that he then heard yelling and observed the plaintiff come out of the defendant’s bedroom. The Court credits this testimony.
G.L. c. 186, s.14 provides, in pertinent part: “Any lessor or landlord of any building or part thereof occupied for dwelling purposes… who directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant…shall…be liable for actual and consequential damages, or three month’s rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee, all of which may be applied in setoff to or in recoupment against any claim for rent owed or owing…”
While G.L. c. 186, s.14 does not require that the landlord’s conduct be intentional, Simon v. Solomon, 386 Mass. 91 (1983), it does require that the landlord’s conduct cause a serious interference with the tenant’s quiet enjoyment . Doe v. New Bedford Housing Authority, 417 Mass. 263, 284-285 (1994); Lowery v. Robinson, 13 Mass.App.Ct. 982 (1982). “The covenant of quiet enjoyment protects a tenant’s right to freedom from serious interference with his tenancy-acts or omissions that impair the character and value of the leased premises. (citations omitted).” Doe v. New Bedford Housing Authority, supra at 285.
The Court finds that the plaintiff’s actions in entering the premises without notice is conduct which constitutes a serious interference with the defendant’s quiet enjoyment of the premises. Accordingly, the Court finds that the defendant is entitled to a defense to possession under G.L. c. 239, s.8A and to damages under G.L. c. 186, s.14 based on this claim in the amount of $1,500.00, which represents three (3) months’ rent, plus attorney’s fees.
ORDER FOR JUDGMENT
Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that:
1. Judgment enter for the plaintiff for damages for unpaid rent in the amount of $3,500.00, plus costs in the amount of $230.00, a total of $3,730.00.
2. Judgment enter for the defendant on her counterclaim under G.L. c. 186, s.14 in the amount of $1,500.00, plus attorney’s fees.
3. The foregoing order for judgment paragraphs 1 and 2 result in a net judgment for the plaintiff for damages in the amount of $2,000.00, plus costs in the amount of $230.00, a total of $2,230.00.
4. Judgment enter for the defendant Tanisha Williams for possession pursuant to the fifth paragraph of G.L. c. 239, s.8A, on the condition that within seven (7) days of her receipt of this ORDER, the defendants deposit with the Clerk of this Court, the sum of $2,000.00, plus costs in the amount of $230.00, a total of $2,230.00, in the form of certified check, cashier’s check, or money order, payable to the plaintiff. If this deposit is made, the Clerk shall immediately release all funds held by the Court to the plaintiff. If the deposit is not made, judgment shall automatically enter in favor of the plaintiff for possession and damages in the amount of $2,000.00, plus costs in the amount of $230.00, a total of $2,230.00, on the next business day following the expiration of the tenth (10th) day from the date of this Order.
5. Within ten (10) days of the date that judgment enters, the defendant shall file with this Court a Motion for Counsel Fees, Costs and Expenses in accordance with the procedure prescribed in Yorke Mgmt. v. Castro, 406 Mass. 17, 20 (1989). Counsel shall also submit an affidavit and mark the matter for a hearing. After hearing, the Court shall enter final judgment including an award of reasonable attorney’s fees and costs nunc pro tunc to the date of this decision.
/s/ ANNE KENNEY CHAPLIN
FIRST JUSTICE
January 23, 2013
Docket No.:Docket No. 13-SP-01435
Parties:Benjamin Quinn, PLAINTIFF v. Matthew Ryan Carreiro, DEFENDANT
Judge:/s/ ANNE KENNEY CHAPLIN
Date:May 6, 2013
SOUTHEASTERN DIVISION
FINDINGS OF FACT, RULINGS OF LAW, AND ORDER FOR JUDGMENT
This is a summary process action in which the plaintiff seeks to recover possession of the premises from the defendant and damages for unpaid rent.
Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds as follows:
The defendant, Matthew Ryan Carreiro, has resided at 83 West Grove St., Unit 1, Middleborough, MA (“the premises”) as a tenant at will since September 2006. The plaintiff, Benjamin Quinn, is the owner of the premises and is the defendant’s landlord. The rent for the premises is $1,000.00 per month.
The plaintiff testified that the rent is due on the first day of each month. The defendant testified that, three (3) years ago, he fell behind in his rent and the plaintiff told him that he would allow him to “catch up” on his rent, and that the rent would be due between the 22nd and the 28th day of the month. The Court credits the plaintiff’s testimony on this issue, and finds that the rent is due on the first day of each month.
The plaintiff testified that the defendant owes a balance of $100.00 for the January 2013 rent, has failed to pay him any rent for the months of February 2013 through April 2013, and currently owes him a total of $3,100.00 in unpaid rent. The defendant testified that he owes a balance of $100.00 for the February 2013 rent, and has not paid any rent since February 2013. The Court credits the plaintiff’s testimony on these issues, and finds that the defendant has failed to pay the plaintiff any rent for the months of February 2013 through March 2013, owes a balance of $100.00 for the month of January 2013, and currently owes the plaintiff a total of $3,100.00 in unpaid rent.
The Court finds that, on March 15, 2013, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent.
At trial, the defendant testified that there are defective conditions in the premises.
G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.
The defendant testified that, 13 or 14 months ago, he notified the plaintiff that two (2) of the front porch steps were “out of code,” and that he gave the plaintiff an unspecified list of other necessary repairs. He testified that the plaintiff’s 18 year old brother, who is not an electrician, “wired the house” at an unspecified time, that the wiring is “messed up and, compared to other people’s homes, it is double or triple the cost”. He testified that, between 2008 and the present, there have been “eight (8) months of spikes of gas leaks and hot water leaks” at an unspecified time and that he called a plumber to make the necessary repairs. He testified that, at some unspecified time, he also paid a plumber himself to replace the faucet handles because the hot water is too hot and causes the handles to break. He testified that he believes there is mold in the premises, and that he notified the plaintiff of this three (3) or four (4) years ago. He testified that, at some unspecified time, he removed the rugs in the premises and installed hardwood floors because he believes there was mold in the rugs. He testified that he believes there is mold in the ceiling of the third bedroom and that, at some unspecified time, the plaintiff cut a hole in the ceiling and “bleached it.” He testified that there are no smoke detectors or carbon monoxide detectors in the premises. He testified that, at some unspecified time, he painted the walls. He testified that the Town of Middleborough Board of Health inspected the premises on April 14, 2013 and found defective conditions.
The plaintiff testified that the defendant told him he believed there was mold in the premises approximately one (1) year ago. He testified that he sprayed bleach and patched the walls. He testified that he does not know if there was mold, but he sprayed the bleach because it is a cleaning product. He testified that he is a licensed plasterer and he patched the walls because there had been a leak in the ceiling at some unspecified time. He testified that the defendant did not notify him of any concerns about mold in the premises since that time. He testified that he has not received the April 18, 2013 Board of Health Report and, after reviewing the Board of Health Report which had been admitted into evidence, he testified that the defendant had never notified him of any of the conditions listed in the Board of Health Report. He testified that, nine (9) months ago, the defendant changed the locks to the premises and he has not been able to get access to the premises since then, and that, at unspecified times, the defendant has denied contractors access to the premises to make repairs.
The Court credits the plaintiff’s testimony on these issues.
The Court finds that there was no credible evidence at trial that the plaintiff breached the implied warranty of habitability at any time during the defendant’s tenancy. Accordingly, the Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this claim.
ORDER FOR JUDGMENT
Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that:
1. Judgment enter for the plaintiff for possession of the premises and damages for unpaid rent in the amount of $3,100.00, plus costs.
2. Judgment enter for the plaintiff on the defendant’s counterclaims.
3. Execution issue ten (10) days after the date that judgment enters.
/s/ ANNE KENNEY CHAPLIN
FIRST JUSTICE
May 6, 2013

 

Docket No.:Docket No. 13-SP-00743
Parties:Joseph Napoli and Peter Napoli, PLAINTIFFS v. Jay Michael Zartman and Britt Zartman[1], DEFENDANTS
Judge:/s/ ANNE KENNEY CHAPLIN
Date:April 3, 2013
SOUTHEASTERN DIVISION
FINDINGS OF FACT, RULINGS OF LAW, AND ORDER FOR JUDGMENT
This is a summary process action in which the plaintiffs seek to recover possession of the premises from the defendants and damages for unpaid rent. The defendants filed a written answer and counterclaims.
Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds as follows:
The defendants, Jay Michael Zartman and Britt Zartman, have resided at 470 Delano Road, Marion, MA (“the premises”) as tenants at will since November 2009. The plaintiffs, Joseph Napoli and Peter Napoli, are the owners of the premises and are the defendants’ landlords. The rent for the premises is $1,500.00 per month and is due on the first day of each month. The defendants have failed to pay the plaintiffs any rent for the months of January 2013 through March 2013, and currently owe the plaintiffs a total of $4,500.00 in unpaid rent.
The Court finds that, on December 20, 2012, the plaintiffs served the defendants with a legally sufficient 30 Day Notice To Terminate Tenancy at Will – Landlord Desires Possession.
The defendants filed a written answer and counterclaims based on breach of the implied warranty of habitability , violations of G.L. c. 186, s.14, G.L. c. 239, s.2A, G.L. c. 186, s.18, G.L. c. 186, s.15B (security deposit), G.L. c. 186, s.22, and G.L. c. 93A . G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.
The Court finds that there was no evidence at trial that the plaintiffs breached the implied warranty of habitability at any time during the defendants’ tenancy. Accordingly, the Court finds that the defendants are not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this claim.
In their written answer and counterclaims, the defendants contend that the plaintiffs violated the provisions of G.L. c. 186, s.14 in requiring them to pay for heat, hot water and electricity without a written agreement.
G.L. c. 186, s.14 provides, in pertinent part: “Any lessor or landlord of any building or part thereof occupied for dwelling purposes… who directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant…shall…be liable for actual and consequential damages, or three month’s rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee, all of which may be applied in setoff to or in recoupment against any claim for rent owed or owing…”
While G.L. c. 186, s.14 does not require that the landlord’s conduct be intentional, Simon v. Solomon, 386 Mass. 91 (1983), it does require that the landlord’s conduct cause a serious interference with the tenant’s quiet enjoyment . Doe v. New Bedford Housing Authority, 417 Mass. 263, 284-285 (1994); Lowery v. Robinson, 13 Mass.App.Ct. 982 (1982). “The covenant of quiet enjoyment protects a tenant’s right to freedom from serious interference with his tenancy-acts or omissions that impair the character and value of the leased premises. (citations omitted).” Doe v. New Bedford Housing Authority, supra at 285.
The defendant Jay Michael Zartman testified that, at the inception of the defendants’ tenancy, they agreed to pay for the heat, hot water and electricity at the premises, put these utilities in their name and paid them. The plaintiff Joseph Napoli testified that, at the inception of the defendants’ tenancy, they agreed to pay for the heat, hot water and electricity at the premises, and did so. The Court credits the parties’ testimony on these issues.
The Court finds that there is no evidence that the plaintiffs failed to provide heat, hot water and electricity to the premises, or that the defendants’ payments for these utilities had a negative impact on their use and enjoyment of the premises, or that they objected to paying for these utilities, or that their rent and the cost of these utilities, together, was more than the fair rental value of the premises, or that there was a meter violation with respect to these utilities. Poncz v. Loftin, 34 Mass. App. Ct. 909, 911 (1993). The Court finds that there was no credible evidence at trial that the plaintiffs engaged in any conduct which would constitute a serious interference with the defendants’ quiet enjoyment of the premises. Accordingly, the Court finds that the defendants are not entitled to damages under G.L. c. 186, s.14 based on this claim.
In their written answer and counterclaims, the defendants contend that the plaintiffs violated G.L. c. 186, s.22.
G.L. c. 186, s.22 provides, in pertinent part: “(a) ‘Submetering’, use of a meter by a landlord who receives water from a water company, which meter measures water supplied to a dwelling unit to enable the landlord to charge the tenant of the dwelling unit separately for water usage, or which meter measures water supplied to a common area…(b) A landlord may cause to be installed by a plumber licensed in the commonwealth, at the expense of such landlord, submetering equipment in the landlord’s building to measure the quantity of water provided for the exclusive use of each dwelling unit, provided that such equipment meets the standards of accuracy and testing of the American Water Works Association or a similar accredited association; and provided further, that a submeter is installed for each dwelling unit in the building and for the common areas of the building, so that all water used in a building is measured by both a primary meter and a submeter…(e) A landlord may not charge the tenant of a dwelling unit separately for water usage measured by a submeter, nor allow such tenant to be so charged, unless the submeter measures only water that is supplied for the exclusive use of the particular dwelling unit and only to an area within the exclusive possession and control of the tenant of such dwelling unit and does not measure any water usage for any portion of the common areas or by any other party or dwelling unit; provided further, that a landlord shall not charge such tenant for water supplied through a submeter to the dwelling unit prior to the landlord installing fully functional water conservation devices for all faucets, showerheads and water closets in the dwelling unit; and provided further, that the landlord shall ensure that such water conservation devices are installed and functioning properly at the commencement of each subsequent tenancy in such dwelling unit; (f) A landlord may not charge the tenant separately, nor allow tenant to be charged separately, for submetered water usage unless the tenant has signed a written rental agreement that clearly and conspicuously provides for such separate charge and that fully discloses in plain language the details of the water submetering and billing arrangement between the landlord and the tenant…”
The defendant Jay Michael Zartman testified that, on December 8, 2012, the plaintiff Joseph Napoli gave the defendants a water bill in the amount of $918.73 which was due to be paid on December 13, 2012. He testified that he told the plaintiffs in writing that the defendants would not pay this bill unless the required documents were on file with the Marion Board of Health. The plaintiff Joseph Napoli testified that the premises consists of a single family house, and that it has its own water meter. He testified that, in May 2012, he had received a water bill for the premises in the amount of $952.00, which was a significant increase over the prior water bills, which were approximately $200.00 to $218.00. He testified that he notified the defendants that he is on a fixed income, and that he could not afford to keep paying water bills of this size. He testified that he told the defendants that he would pay that bill, but could not pay any additional bills of that size. The Court credits the parties’ testimony on these issues.
The Court finds that G.L. c. 186, s.22 applies to dwelling units the landlord has installed both a primary meter and submeters to measure the water usage for separate units in a building. The Court finds that G.L. c. 186, s.22 does not apply to single family residences, such as the premises, because, by definition, no submeters are required “to enable the landlord to charge the tenant of the dwelling unit separately for water usage.” G.L. c. 186, s.22(a) (emphasis added). Accordingly, the Court finds that the defendants are not entitled to damages under G.L. c. 186, s.22 based on this claim.
In their written answer and counterclaims, the defendants contend that the plaintiffs violated the provisions of G.L. c. 239, s.2A and G.L. c. 186, s.18.
G.L. c. 239, s.2A provides, in pertinent part: “It shall be a defense to an action for summary process that such action or the preceding action of terminating the tenant’s tenancy, was taken against the tenant for the tenant’s act of commencing, proceeding with, or obtaining relief in any judicial or administrative action the purpose of which action was to obtain damages under or otherwise enforce, any federal, state or local law, regulation, by-law, or ordinance, which has as its objective the regulation of residential premises, or…reporting a violation or suspected violation of law as provided in section eighteen of chapter one hundred and eighty-six….The commencement of such action against a tenant, or the sending of a notice to quit upon which the summary process action is based…within six months after the tenant has commenced, proceeded with or obtained relief in such action, (or)..made such report..shall create a rebuttable presumption that such summary process is a reprisal against the tenant for engaging in such activities…Such presumption may be rebutted only by clear and convincing evidence[2] that such action was not a reprisal against the tenant, and that the plaintiff had sufficient independent justification for taking such action, and would have in fact taken such action, in the same manner and at the same time the action was taken, even if the tenant had not…engaged in such activity.”
G.L. c. 186, s.18 provides, in pertinent part: “Any person or agent thereof who threatens to or takes reprisals against any tenant of residential premises for the tenant’s act of, commencing, proceeding with, or obtaining relief in any judicial or administrative action the purpose of which action is to obtain damages under, or otherwise enforce, any federal, state or local law, regulation, by-law or ordinance, which has as its objective the regulation of residential premises; or exercising the tenant’s rights pursuant to section one hundred and twenty-four D of chapter one hundred and sixty-four; or reporting to the board of health or … shall be liable for damages which shall not be less than one month’s rent or more than three month’s rent, or the actual damages sustained by the tenant, whichever is greater, and the costs of the suit, including a reasonable attorney’s fee.
“The receipt of any notice of termination of tenancy, except for nonpayment of rent, or, of increase in rent, or, of any substantial alteration in the terms of tenancy within six months after the tenant has commenced, proceeded with, or obtained relief in such action, exercised such rights, made such report or complaint, … shall create a rebuttable presumption that such notice or other action is a reprisal against the tenant for engaging in such activities. Such presumption shall be rebutted only by clear and convincing evidence that such person’s action was not a reprisal against the tenant and that such person had sufficient independent justification for taking such action, and would have in fact taken such action, in the same manner and at the same time the action was taken, regardless of tenants engaging in, or the belief that tenants had engaged in, activities protected under this section.”
The defendant Jay Michael Zartman testified that the plaintiffs served the defendants with a 30 Day Notice To Terminate Tenancy at Will – Landlord Desires Possession on December 20, 2012 because the defendants had notified the plaintiffs in writing on December 13, 2012 that they would not pay the outstanding water bill for the premises. The plaintiff Joseph Napoli testified that he is 81 years old, and lives next door to the premises with his wife. He testified that both he and his wife have health issues, and that he has decided to put the house on the market. He testified that he served the defendants with the December 20, 2012 Notice To Quit which forms the basis for this action for this reason, and because he believes it will be easier to sell the premises once it is vacant. The Court credits the plaintiff Joseph Napoli’s testimony on these issues.
The Court finds that the defendants are entitled to the statutory presumption of retaliation under G.L. c. 239, s.2A and G.L. c. 186, s.18. The Court finds, on the facts of this case, that the plaintiffs have established with clear and convincing evidence that they did not retaliate against the defendants. The Court finds that the plaintiffs’ sole reason for serving the 30 Day Notice Terminating Tenancy at Will – Landlord Desires Possession on the defendants on December 20, 2012 was because the plaintiffs intend to put the premises on the market and believe it will be easier to sell the premises once it is vacant. The Court finds that the plaintiffs had sufficient independent justification for serving the December 20, 2012 Notice To Quit, and would have in fact taken this action, in the same manner and at the same time the action was taken, even if the defendants had not engaged in statutorily protected activity within six (6) months of the service of the Notice To Quit which form the basis of this action. Accordingly, the Court finds that the defendants are not entitled to a defense to possession under G.L. c. 239, s.2A or to damages under G.L. c. 186, s.18.
In their written answer and counterclaims, the defendants contend that the plaintiffs violated the provisions of G.L. c. 186, s.15B (security deposit).
The defendant Jay Michael Zartman testified that, at the inception of their tenancy, the defendants agreed to pay the plaintiffs a security deposit in the amount of $1,000.00 in unspecified installments. He testified that, on May 7, 2011, he paid the plaintiffs rent for the month of May 2011, and that the plaintiff Joseph Napoli told him that his prior payment was for the security deposit, and that the payment he was accepting on May 7, 2011 was for rent. He testified that he told the plaintiff Joseph Napoli that he would pay $500.00 extra for the security deposit on May 16, 2011 and that he would pay the balance in June 2011. He testified that he gave the plaintiffs another $500.00 for the security deposit on June 10, 2011. The plaintiff Joseph Napoli testified that the defendants never paid the plaintiffs any security deposit.
The Court credits the testimony of the plaintiff Joseph Napoli, and finds that there was no credible evidence at trial that the plaintiffs violated the provisions of G.L. c. 186, s.15B (security deposit). Accordingly, the Court finds that the defendants are not entitled to a defense to possession or to damages under G.L. c. 186, s.15B based on this claim.
In their written answer and counterclaims, the defendants contend that the plaintiffs violated G.L. c. 93A .
The plaintiff testified that he lives in his own house next door to the premises, and that he does not own any other real property in Massachusetts. He testified that he purchased the premises with the intent that one (1) of his children could move back into it after that child had completed his or her military service. He testified that this does not look like it will happen, and that he now intends to sell the premises. The Court credits this testimony.
The Court finds that there is no evidence that the plaintiffs are engaged in the trade or business of real estate, and finds that they are not subject to the provisions of G.L. c. 93A. Accordingly, the Court finds that the defendants are not entitled to a defense to possession or to damages based on this claim.
ORDER FOR JUDGMENT
Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that:
1. Judgment enter for the plaintiffs for possession of the premises and damages for unpaid rent in the amount of $4,500.00, plus costs.
2. Judgment enter for the plaintiffs on the defendants’ counterclaims.
3. Execution issue ten (10) days after the date that judgment enters.
/s/ ANNE KENNEY CHAPLIN
FIRST JUSTICE
April 3, 2013
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[1] Prior to trial, the Court (Chaplin, F.J.) allowed the defendants’ Motion To Amend Complaint to add Britt Zartman as an additional defendant and to identify the defendant Mike Zartman as Jay Michael Zartman. The Clerk’s Office is directed to make these changes on the docket in this action.
[2] “Clear and convincing” evidence is that which “induces in the mind of the trier a reasonable belief that the facts are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.” Callahan v. Westinghouse Broadcasting Co., Inc., 372 Mass. 588 (1977), quoting Dacey v. Connecticut Bar Assoc., 170 Conn. 520, 537, n. 5 (1976); Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 871 (1975).
Docket No.:Docket No. 12-SP-05835
Parties:Leonel Gomes PLAINTIFF v. Sheila Gomes and Charles Crowder DEFENDANTS
Judge:/s/ ANNE KENNEY CHAPLIN, FIRST JUSTICE
Date:January 23, 2013
SOUTHEASTERN DIVISION
FINDINGS OF FACT, RULINGS OF LAW, AND ORDER FOR JUDGMENT
This is a summary process action in which the plaintiff seeks to recover possession of the premises from the defendants and damages for unpaid rent. The defendant Charles Crowder did not appear for trial and was defaulted. The defendant Sheila Gomes appeared for trial and testified.
Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds as follows:
The defendants, Sheila Gomes and Charles Crowder, have resided at 392 East Main Street, 3rd flr., Fall River, MA (“the premises”) as tenants at will since October 29, 2010. The plaintiff, Leonel Gomes, is the owner of the premises and is the defendant’s landlord. The rent for the premises is $100.00 per week and is due each Saturday for the week just ended.
The plaintiff testified that the defendants have failed to pay him any rent for the weeks ending August 18, 2012 through December 29, 2012, owe a balance of $80.00 for the week ending August 11, 2012, and currently owe him a total of $2,080.00 in unpaid rent. The defendant Sheila Gomes testified that she has not paid the plaintiff any rent since she was served with the 14 Day Notice to Quit which forms the basis of this action on October 13, 2012. The Court credits the plaintiff’s testimony on these issues, and finds that the defendants have failed to pay the plaintiff any rent for the weeks ending August 18, 2012 through December 29, 2012, owe a balance of $80.00 for the week ending August 11, 2012, and currently owe the plaintiff a total of $2,080.00 in unpaid rent.
The Court finds that, on October 13, 2012, the plaintiff served the defendants with a legally sufficient 14 Day Notice to Quit for non-payment of rent.
At trial, the defendant Sheila Gomes testified that there are defective conditions in the premises.
G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.
The defendant Sheila Gomes testified that, at the inception of her tenancy, the electrical sockets throughout the premises were loose, and that the plaintiff told her that he would repair them, but he did not. She testified that, approximately one (1) year ago, she notified the plaintiff that the water from the bathtub goes to the second floor. She testified that, at the beginning of 2011, she notified the plaintiff that there were cockroaches in the premises, and he told her that he would send an exterminator to the premises. She testified that the plaintiff did so, and that the exterminator sprayed the premises. She testified that, on an unspecified date in October 2012, she asked the plaintiff to repair a door in the premises, which is falling because the screws won’t hold it.
The Court finds that, on December 18, 2012, the City of Fall River Department of Inspectional Services Minimum Housing Division (“Minimum Housing”) inspected the premises and found the following conditions: “1. Bathtub not draining. Leaking into 2nd floor basement. 2. Toilet not flushing properly. 3. Electrical outlets loose throughout Apt. 4. Apt. has infestation of roaches. Need extermination. 5. Tenant has no working cooking stove (owner must supply). 6. Stair mates (sic) loose in hallway third level. 7. Tenant claims of electrical problems with fuses going out.”
The plaintiff testified that he has never received the Minimum Housing Report. He testified that, although there was “nothing wrong” with the electrical outlets in the premises, he rewired the premises in April 2012 because the defendant notified him that there were not enough outlets for her electrical appliances. He testified that, in July 2012, he engaged the services of an exterminator, who sprayed the premises three (3) times by July 11, 2012. He testified that, when he went to the premises to repair the bathtub, the defendant denied him access to the premises to make the repairs. He testified that the stove in the premises is not defective, but that the defendant, who signed an agreement to pay all utilities at the inception of her tenancy, has not paid the gas bill.
The Court credits the plaintiff’s testimony on these issues.
The Court finds that, since the defendant denied the plaintiff access to the premises to repair the defective bathtub in the premises, she is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this condition.
The Court finds that there is no credible evidence that the stove in the premises is defective. Accordingly, the Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this condition.
The Court finds that there is no credible evidence that the defendant notified the plaintiff that the toilet in the premises did not flush properly. Accordingly, the Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this condition.
The Court finds that there is no credible evidence that the plaintiff knew or should have known that the stair mats in the third floor hallway were loose prior to the trial of this action. Accordingly, the Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this condition.
The Court finds that there is no credible evidence that the condition of the electrical sockets in the premises was serious, or that this condition endangered the health or safety of the defendant, or that it diminished the fair rental value of the premises. Accordingly, the Court finds that the existence of this condition did not constitute a material breach of the implied warranty of habitability . Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973).
The Court finds that the cockroach infestation in the premises is a condition which constitutes a material breach of the implied warranty of habitability . Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that the defendant is entitled to a defense to possession and to damages under G.L. c. 239, s.8A based on this condition. The Court finds that there is no credible evidence that the defendant notified the plaintiff that the July 2012 extermination did not eliminate the problem.
The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises free of defects and the fair rental value of the premises during the period in which the defective conditions existed. The Court finds that the fair rental value of the premises during the defendant’s tenancy is $100.00 per week. The Court finds that the defendant is entitled to the following rent abatement for the cockroach infestation in the premises for the 558 day period between January 1, 2011[1] through July 11, 2012, (15%), calculated as follows: $14.25/day[2] x 15% = $2.14 x 558 = $1,194.12.
ORDER FOR JUDGMENT
Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that:
1. Judgment enter for the plaintiff against the defendant Sheila Gomes for damages for unpaid rent in the amount of $2,080.00, plus costs in the amount of $240.00, a total of $2,320.00.
2. Judgment enter for the defendant Sheila Gomes on her counterclaim for damages for the breach of the implied warranty of habitability in the amount of $1,194.12.
3. The foregoing Order for Judgment paragraphs 1 and 2 result in a net judgment for the Plaintiff in the amount of $885.88, plus costs in the amount of $240.00, a total of $1,125.88.
4. Judgment enter for the defendant Sheila Gomes for possession pursuant to the fifth paragraph of G.L. c. 239, s.8A, on the condition that within seven (7) days of her receipt of this ORDER, the defendants deposit with the Clerk of this Court, the sum of $885.88, plus costs in the amount of $240.00, a total of $1,125.88, in the form of certified check, cashier’s check, or money order, payable to the plaintiff. If this deposit is made, the Clerk shall immediately release all funds held by the Court to the plaintiff. If the deposit is not made, judgment shall automatically enter in favor of the plaintiff for possession and damages in the amount of $885.88, plus costs in the amount of $240.00, a total of $1,125.88, on the next business day following the expiration of the tenth (10th) day from the date of this Order.
/s/ ANNE KENNEY CHAPLIN, FIRST JUSTICE
January 23, 2013
cc: Leonel Gomes
Sheila Gomes
Charles Crowder
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[1] The Court finds that there was no evidence at trial of the exact date in January 2011 on which the defendant notified the plaintiff of the presence of cockroaches in the premises. Accordingly, the Court will use January 1, 2011 as the date on which the defendant notified the plaintiff of this condition for the purposes of computing damages.
[2] The per diem rental amount is calculated as follows: $100.00 x 52 = $5,200.00 ? 365 = $14.25.
Docket No.:Docket No. 11-CV-00747
Parties:Joseph Ponte, Trustee of the F350 Realty Trust PLAINTIFFS v. Clarissa Payne, Joshua Pimental, and Joshua Pimental (infant)[1] DEFENDANTS
Judge:/s/ ANNE KENNEY CHAPLIN, FIRST JUSTICE
Date:June 20, 2013
SOUTHEASTERN DIVISION
FINDINGS OF FACT, RULINGS OF LAW, AND ORDER FOR JUDGMENT
This is a civil action which was transferred from the Summary Process docket, No. 11-SP-04802, by a written Agreement of the parties on December 1, 2011. In this Agreement, the plaintiff’s complaint for possession and damages for unpaid rent was dismissed with prejudice, and the defendants’ counterclaims were transferred to the civil docket.
Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds as follows:
The plaintiff, Joseph Ponte, Trustee of the F350 Realty Trust, is the owner of 568 Plymouth Ave. #2L, Fall River, Ma (“the premises”) and was the defendants’ landlord. The defendant Clarissa Payne was a tenant under a written lease at the premises at all times relevant to this action. The rent for the premises was $600.00 per month and was due on the fifth day of each month.
The Court finds that, on August 5, 2011, the plaintiff served the defendant Clarissa Payne with a 14 Day Notice to Quit for Non-Payment of Rent.
The defendants filed counterclaims based on breach of the implied warranty of habitability , violations of G.L. c. 186, s.14, G.L. c. 186, s.15B, G.L. c. 186, s.18, G.L. c. 93A , negligent failure to maintain premises, and intentional or reckless infliction of emotional distress. G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.
The Court finds that, on August 16, 2011, the City of Fall River Department of Inspectional Services Minimum Housing Division (“Minimum Housing”) inspected the premises and found the following conditions: “1. Evidence of infestation of bed bugs in apartment. Conditions are unbearable for tenant, making Apt. Uninhabitable at this time. Need professional extermination. 2. Window falling out in bedroom. Eastside, causing hazardous conditions.”
The defendant Clarissa Payne testified that she moved into the premises with her son, Joshua Pimental (infant) in June, 2011. She testified that, at the inception of her tenancy, she did not have a bed, so she slept on the sofa in the living room. She testified that the carpeting throughout the premises did not smell like it had been cleaned, that there was “something wrong” with a window, and that the stove could barely be opened. She testified that, at the inception of her tenancy, she and the defendant Joshua Pimental, her son’s father, were “starting to get back together” as a couple and that he would sometimes stay overnight in the premises. She testified that, at some unspecified time early in her tenancy, she and the defendant Joshua Pimental received a mattress from his mother’s neighbor, and that she placed this mattress on the floor. She testified that, soon after moving into the premises, she noticed red bites on her son and on the defendant Joshua Pimental and that she subsequently noticed red bites on herself. She testified that, at first, she thought the bites were from fleas, and bought flea spray, but it did not solve the problem, and that she learned that the premises was infested with bedbugs. She testified that, at approximately the time she took her son to the doctor[2], she and the defendant Joshua Pimental notified the plaintiff that there were bedbugs in the premises. She testified that the plaintiff told her to get coverings for the mattress and to take the clothes to the laundromat and put them in the dryer. She testified that she informed the plaintiff that she did not have the money to do that, and that he told her he would pay for it, but he did not. She testified that, at some unspecified time, she called Minimum Housing because of the bedbugs, and that Minimum Housing inspected the premises. She testified that she filed an Application for Temporary Restraining Order in this Court in August 2011[3] because of the bedbugs, and that she moved out of the premises “shortly after that”. She testified that the Department of Transitional Assistance told her she could move into a family shelter or a motel, and that she chose the Dartmouth Motor Inn. She testified that she and her son lived in the motel for two (2) months.
The defendant Joshua Pimental testified that the defendant Clarissa Payne moved into the premises on June 11, 2011. He testified that he and the defendant Clarissa Payne received a mattress approximately a week later. He testified that he noticed red bites on his arms, hands, back and side the morning after the first night he spent in the premises. He testified that he went to Morton Hospital on June 13, 2011 and got a cream and Benadryl for the bites. He testified that his son also had bite marks and that, once he was examined by doctors, he learned that these bites were caused by bedbugs.
Joseph Ponte, the plaintiff’s Trustee, testified that he is engaged in real estate sales and investments, and that he is also a licensed constable in Massachusetts. He testified that, on August 8, 2011, he saw the defendant Clarissa Payne and the defendant Joshua Pimental going into the building and had a polite conversation with them. He testified that this was the first notice he had of a bedbug issue. He testified that he thought that the defendants were “making up” the bedbugs in order “to get money” from him. He testified that, on August 16, 2011, he received the Minimum Housing Report. He testified that, on August 17, 2011, the premises were inspected for bedbugs and, on August 19, 2011, the window was repaired.
Roger Dufour testified that he is the Director of Minimum Housing for the City of Fall River Department of Inspectional Services. He testified that, on August 11, 2011, he inspected the premises and saw “dozens of blotches” on the defendant Joshua Pimental’s body. He testified that he did not see evidence of bedbug infestation in the premises, but that the defendants informed him that there were bedbugs and that it was “unbearable.”
Frank Fallon testified that he is employed by Able Pest Control of Brockton, MA as an exterminator. He testified that the plaintiff contacted him in July 2013 with respect to a bedbug infestation in the premises, and that he scheduled an appointment at the premises on August 6, 2011. He testified that the defendant Clarissa Payne called him to cancel this appointment, and that he scheduled a second appointment for August 13, 2011, which also did not occur because of “some mis-scheduling” on the defendants’ part. He testified that he went to the premises on August 17, 2011 and met the defendants Clarissa Payne and the defendant Joshua Pimental. He testified that he inspected the premises, including the corners, the bedding, and the furniture. He testified that his largest concern was the mattress. He testified that he found no evidence of bedbugs, but treated the premises preventatively. He testified that traces of bedbugs would be able to be seen during the day.
The Court credits the testimony of Frank Fallon on the issue of the date on which Joseph Ponte, the plaintiff’s Trustee, contacted him, and credits the testimony of the defendants on the remaining issues.
The Court finds that there was no evidence at trial that the plaintiff knew or should have known of any defects in the stove or the carpeting in the premises. Accordingly, the Court finds that the defendants are not entitled to damages under G.L. c. 239, s.8A based on these conditions.
The Court finds that the defective window in the premises and the bedbug infestation are conditions which constitute material breaches of the implied warranty of habitability . Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that the defendants are entitled to damages under G.L. c. 239, s.8A based on these conditions. The Court finds that there was no evidence at trial that the plaintiff knew or should have known of the defective window in the premises prior to receiving the Minimum Housing Report on August 16, 2011.
The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises free of defects and the fair rental value of the premises during the period in which the defective conditions existed. The Court finds that the fair rental value of the premises during the defendants’ tenancy was $600.00 per month. The Court finds that the defendants are entitled to the following rent abatements: (1) for the defective window in the premises for the 4 day period between August 16, 2011 and August 19, 2011, (15%), and (2) for the bedbug infestation in the premises for the 69 day period between June 27, 2011 and September 3, 2011[4], (50%), calculated as follows: ($19.73/day[5] x 15% = $2.96 x 4 = $11.84) + ($19.73/day x 50% = $9.87 x 69 = $681.03) = $692.87.
In their written counterclaims, the defendants contend that the plaintiff violated the provisions of G.L. c. 186, s.14.
G.L. c. 186, s.14 provides, in pertinent part: “Any lessor or landlord of any building or part thereof occupied for dwelling purposes… who directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant…shall…be liable for actual and consequential damages, or three month’s rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee, all of which may be applied in setoff to or in recoupment against any claim for rent owed or owing…”
While G.L. c. 186, s.14 does not require that the landlord’s conduct be intentional, Simon v. Solomon, 386 Mass. 91 (1983), it does require that the landlord’s conduct cause a serious interference with the tenant’s quiet enjoyment . Doe v. New Bedford Housing Authority, 417 Mass. 263, 284-285 (1994); Lowery v. Robinson, 13 Mass.App.Ct. 982 (1982). “The covenant of quiet enjoyment protects a tenant’s right to freedom from serious interference with his tenancy-acts or omissions that impair the character and value of the leased premises. (citations omitted).” Doe v. New Bedford Housing Authority, supra at 285.
The Court finds that the plaintiff’s failure to exterminate the premises for bedbugs for the 69 day period between June 27, 2011 and September 3, 2011 constitutes a serious interference with the defendants’ quiet enjoyment of the premises. The defendants are not entitled to recover cumulative damages arising from the same facts under every theory of recovery, but they are entitled to recover damages under the theory which results in the largest award of damages. Wolfberg v. Hunter, 385 Mass. 390 (1982). This conduct constitutes a serious interference with the defendants’ quiet enjoyment of the premises. The defendants’ claim for the plaintiff’s breach of the implied warranty of habitability based on this conduct and their interference with quiet enjoyment claim arise from the same set of facts and involve the same damages. An award of damages for breach of the implied warranty of habitability would be duplicative of the damages awarded for violation of G.L. c. 186, s.14. The Court will award damages for this breach of the implied warranty of habitability under G.L. c. 186, s.14 since that provides the larger recovery to the defendants, and will adjust the damages awarded for breach of the implied warranty of habitability by subtracting the sum of $681.03 from the total award of damages on that claim. This results in a net award for breach of the implied warranty of habitability of $11.84. The Court finds that the defendants are entitled to statutory damages under G.L. c. 186, s.14 in the amount of $1,800.00 on their claim under G.L. c. 186, s.14, which represents three (3) months’ rent, plus attorney’s fees.
In their written counterclaims, the defendants contend that the plaintiff violated the provisions of G.L. c. 186, s.18.
The defendant Clarissa Payne testified that the plaintiff served her with a 14 Day Notice To Quit at 11:00 a.m. on August 5, 2011, and that she was not in arrears in her rent at that time. The defendant Joshua Pimental testified that the defendant was served with the Summary Process Summons and Complaint on August 19, 2011, one (1) day after the parties appeared in this Court on the defendant Clarissa Payne’s Application for Temporary Restraining Order, and that the plaintiff served him with a No Trespass Order on the same date. Joseph Ponte, the plaintiff’s Trustee, testified that he was “not happy that the [Minimum Housing] inspection was performed.”
The Court credits the parties’ testimony on these issues.
G.L. c. 186, s.18 provides, in pertinent part: “Any person or agent thereof who threatens to or takes reprisals against any tenant of residential premises for the tenant’s act of, commencing, proceeding with, or obtaining relief in any judicial or administrative action the purpose of which action is to obtain damages under, or otherwise enforce, any federal, state or local law, regulation, by-law or ordinance, which has as its objective the regulation of residential premises; or exercising the tenant’s rights pursuant to section one hundred and twenty-four D of chapter one hundred and sixty-four; or reporting to the board of health or … shall be liable for damages which shall not be less than one month’s rent or more than three month’s rent, or the actual damages sustained by the tenant, whichever is greater, and the costs of the suit, including a reasonable attorney’s fee.
“The receipt of any notice of termination of tenancy, except for nonpayment of rent, or, of increase in rent, or, of any substantial alteration in the terms of tenancy within six months after the tenant has commenced, proceeded with, or obtained relief in such action, exercised such rights, made such report or complaint, … shall create a rebuttable presumption that such notice or other action is a reprisal against the tenant for engaging in such activities. Such presumption shall be rebutted only by clear and convincing evidence[6] that such person’s action was not a reprisal against the tenant and that such person had sufficient independent justification for taking such action, and would have in fact taken such action, in the same manner and at the same time the action was taken, regardless of tenants engaging in, or the belief that tenants had engaged in, activities protected under this section.”
The Court finds that the defendants are entitled to the statutory presumption of retaliation under G.L. c. 186, s.18. The Court finds, on the facts of this case, that the plaintiff has not established with clear and convincing evidence that it did not retaliate against the defendants. The Court finds that the plaintiff served the defendant Clarissa Payne with a Summary Process Summons and Complaint and served the defendant Joshua Pimental with a No Trespass Order one (1) day after the defendant Clarissa Payne appeared in court on an Application for Temporary Restraining Order against him. The Court finds that the plaintiff did not have sufficient independent justification for these actions, and finds that it would not have in fact taken these actions, in the same manner and at the same time the actions were taken if the defendant Clarissa Payne had not filed an Application for Temporary Restraining Order against it within six (6) months. Accordingly, the Court finds that the defendants are entitled to damages under G.L. c. 186, s.18 in the amount of $1,800.00, plus attorney’s fees, based on this claim.
In their written counterclaims, the defendants content that the plaintiff was negligent in maintaining the premises. In order to recover on this claim, the defendants have the burden of proving by a preponderance of the evidence each of the following elements: (1) The plaintiff owed the defendants a duty of care; (2) the plaintiff breached that duty of care; (3) the defendants suffered injury or harm; and (4) the plaintiff’s breach of duty was a substantial cause of the defendants’ injury or harm.
The first element which the defendants must prove is that the plaintiff owed them a duty of care. Carrier v. Riddell, Inc., 721 F.2d 867, 868 (1st Cir. 1983). A “duty” is an obligation to conform to a particular standard of conduct toward another person which is recognized and enforced in the law. Mounsey v. Ellard, 363 Mass. 693, 707 (1973). The Court finds that the plaintiff, as landlord, owed the defendants, as tenants, a duty of care with respect to the premises during their tenancy.
The second element which the defendants must prove is that the plaintiff did not exercise the required amount of care under the circumstances, i.e., that the plaintiff breached its duty of care to the defendants, or, in other words, was negligent. Irwin v. Town of Ware, 392 Mass. 745, 764 (1984); Goldstein v. Gontarz, 364 Mass. 800, 804 (1974). See also Perry v. Medeiros, 369 Mass. 836 (1976). The standard of care is how a person of reasonable prudence would act in similar circumstances. Kane v. Field Corner Grille, 341 Mass. 640, 642 (1961); Gelinas v. New England Power Co., 359 Mass. 119, 124, (1971). The defendants contend that the plaintiff breached its duty of care to the plaintiffs by failing to maintain the premises during their tenancy.
The third element which the defendants must prove is that they suffered harm as the result of the plaintiff’s negligence. The defendants contend that the plaintiff’s negligence resulted in the loss of their possessions due to the bedbug infestation.
The fourth element the defendants must prove is that the plaintiff’s negligent conduct caused the defendants’ harm. Simmons v. Monarch Machine Tool Co., 413 Mass. 205, 212 (1992). To meet their burden, the defendants need only show that there was greater likelihood or probability that the harm complained of was due to causes for which the plaintiff was responsible than from any other cause. Mullins v. Pine Manor College, 389 Mass. 47, 58 (1983). The [plaintiff’s] conduct was the legal cause of the [defendants’] harm if it was a substantial factor in bringing it about, without which the harm would not have occurred. O’Connor v. Raymark Industries, Inc., 401 Mass. 586, 591-92 (1988). “Substantial” means that the plaintiff’s contribution to the harmful result was not an insignificant factor. The plaintiff’s negligence must contribute significantly to the result; it must be a material and important ingredient in causing the harm. If the plaintiff’s negligence was a substantial factor, then it is considered a legal cause of the defendants’ injury, and the defendants are entitled to recover damages. Id.
In order to establish causation, the defendants must show that the harm was reasonably foreseeable to a person in the plaintiff’s position at the time of the plaintiff’s negligence. The defendants do not have to establish that the plaintiff foresaw, or should have foreseen, the exact manner in which the harm occurred, but they must show that this harm was a natural and probable consequence of the plaintiff’s negligence. Hill v. Winsor, 118 Mass. 251, 259 (1975). The defendants are not required to show the exact cause of their injuries or to exclude all possibility that they resulted without the fault of the defendants. McLaughlin v. Bernstein, 356 Mass. 219 (1969); Edwards v. Boland, 41 Mass.App.Ct. 375 (1996); Woronka v. Sewall, 320 Mass. 362, 365 (1946). The defendants must show only that the harm was more likely due to the plaintiff’s negligence than to some other cause. Evangelico v. Metropolitan Bottling Co., 339 Mass. 177, 180 (1959); Roscigno v. Colonial Beacon Oil Co., 294 Mass. 234 (1936).
The Court finds that the plaintiff was negligent in maintaining the premises throughout the defendants’ tenancy, and finds that the defendants’ loss of their possessions due to the bedbug infestation was reasonably foreseeable. Accordingly, the Court finds that the defendants are entitled to damages based on this claim.
The defendant Clarissa Payne testified that the defendants did not take any of their possessions with them when they vacated the premises, because they did not want to take the bedbugs to a new residence. She testified that the defendants lost the following possessions, with the following monetary values: 3 television sets, $125.00 total; a DVD player, $32.00; 12 DVD’s, $150.00; 3 VHS tapes, $9.00; sofa, $100.00; love seat, $100.00; kitchen table, $65.00; crib, $350.00; crib mattress, $350.00; queen pillowtop mattress set, $600.00; 2 dressers, $200.00; 1 nightstand, $35.00; microwave oven, $45.00; electric can opener, $25.00; food, $500.00; bathroom set, $40.00;clothes, $1,500.00; deep fryer, $75.00; pots and pans, $100.00; vacuum cleaner, $50.00; dust pan, $5.00; broom, $10.00; cleaning products, $40.00; books, $60.00; blankets, $100.00; small desk table, $50.00; toaster oven, $40.00; dish drainer, $10.00; 4 blinds, $20.00; air conditioner, $150.00; bed railing, $100.00; pictures and paintings, $200.00; dishes, $150.00; book shelves, $75.00; and trash barrel, $10.00, a total of $5,471.00. The Court credits this testimony.
The Court finds that the plaintiff’s negligent failure to maintain the premises throughout the defendants’ tenancy caused the defendants to lose their possessions. The defendants are not entitled to recover cumulative damages arising from the same facts under every theory of recovery, but they are entitled to recover damages under the theory which results in the largest award of damages. Wolfberg v. Hunter, supra at 390 (1982). The plaintiff’s interference with the defendants’ quiet enjoyment of the premises, and its negligent failure to maintain the premises are claims which arise from the same set of facts and involve the same damages. An award of damages for negligent failure to maintain the premises would be duplicative of the damages awarded for violation of G.L. c. 186, s.14. The Court will award damages for this interference with quiet enjoyment under this claim for negligent failure to maintain the premises, since that provides the larger recovery to the defendants, and will adjust the damages awarded for interference with quiet enjoyment of the premises by subtracting the sum of $1,800.00 from the total award of damages on that claim. This results in a net award for interference with quiet enjoyment of the premises in the amount of attorney’s fees. The Court finds that the defendants are entitled to damages for negligent failure to maintain the premises in the amount of $5,471.00.
In their written counterclaims, the defendants contend that the plaintiff intentionally and/or recklessly inflicted emotional distress on them.
The defendant Clarissa Payne testified that the living situation in the premises due to the bedbug infestation caused her to suffer stress, anxiety and depression. She testified that she had previously been treated for anxiety and depression, and that the living situation in the premises made those conditions worse. She testified that the plaintiff was not aware of her medical conditions. The Court credits this testimony.
The elements of a claim for intentional or reckless infliction of emotional distress are as follows: The claimant must show “(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct;…(2) that the conduct was ‘extreme and outrageous’;…(3) that the actions of the plaintiff were the cause of the defendant’s distress;…and (4) that the emotional distress sustained by the defendant was ‘severe’….” Agis v. Howard Johnson Co., 371 Mass. 140, 144-45 (1976); see also Simon v. Solomon, 385 Mass. 91 (1982). The Court finds that there was no evidence at trial that the plaintiff knew or should have known that emotional distress was the likely result of his intentional or reckless failure to eliminate the bedbug infestation in the premises. The Court finds that there was no evidence at trial that this conduct was “extreme and outrageous,” and finds that there was no evidence at trial that the emotional distress sustained by the defendant Clarissa Payne was severe. Accordingly, the Court finds that the defendant Clarissa Payne is not entitled to damages based on this claim.
The Court finds that there was no evidence at trial that the defendants Joshua Pimental and Joshua Pimental (infant) sustained any emotional distress. Accordingly, the defendants Joshua Pimental and Joshua Pimental (infant) are not entitled to damages based on this claim.
In her written counterclaims, the defendant Clarissa Payne individually contends that the plaintiff violated the provisions of G.L. c. 186, s.15B.
The defendant Clarissa Payne testified that, at the inception of her tenancy, she paid the plaintiff $100.00 and that Catholic Social Services paid the plaintiff $1,100.00, the balance of the first month’s rent of $600.00 and a security deposit in the amount of $600.00. The plaintiff testified that he did not receive the security deposit from Catholic Social Services until September 22, 2011, and that he deposited $600.00 in an escrow account at Rockland Trust Co. on that date. The Court finds that the date on the check Catholic Social Services sent to the plaintiff is June 20, 2011. The Court credits the defendant Clarissa Payne’s testimony on these issues, and finds that the plaintiff received a $600.00 security deposit from Catholic Social Services for the benefit of the defendant Clarissa Payne on June 20, 2011.
G.L. c. 186, s.15B(2)(b) provides: “Any lessor or his agent who receives a security deposit from a tenant or prospective tenant shall give said tenant or prospective tenant at the time of receiving such security deposit a receipt indicating the amount of such security deposit, the name of the person receiving it and, in the case of an agent, the name of the lessor for whom such security deposit is received, the date on which it is received, and a description of the premises leased or rented. Said receipt shall be signed by the person receiving the security deposit.”.
G.L. c. 186, s.15B(2)(c) provides, in pertinent part: “Any lessor of residential real property, or his agent, who accepts a security deposit from a tenant or prospective tenant shall, upon receipt of such security deposit, or within ten days after commencement of the tenancy, whichever is later, furnish to such tenant or prospective tenant a separate written statement of the present condition of the premises to be leased or rented…”
G.L. c. 186, s.15B(3)(a) provides, in pertinent part: “Any security deposit received by such lessor shall be held in a separate, interest-bearing account in a bank, located within the commonwealth under such terms as will place such deposit beyond the claim of creditors of the lessor…A receipt shall be given to the tenant within thirty days after such deposit is received by the lessor which receipt shall indicate the name and location of the bank in which the security deposit has been deposited and the amount and account number of said deposit. Failure to comply with this paragraph shall entitle the tenant to immediate return of the security deposit.”
G.L. c. 186, s.15B(6)(a) provides that the landlord forfeits his right to retain the security deposit for any reason if he “fails to deposit such funds in an account as required by subsection (3).”
G.L. c. 186, s.15B(7) provides: “If the lessor or his agent fails to comply with clauses (a), (d), or (e) of subsection (6), the tenant shall be awarded damages in an amount equal to three times the amount of such security deposit or balance thereof to which the tenant is entitled plus interest at the rate of five per cent from the date when such payment becomes due, together with court costs and reasonable attorney’s fees.”
The Court finds that the plaintiff has violated the provisions of G.L. c. 186, s.s.15B(2)(b) and (2)(c) in the following respects: He did not provide the defendant Clarissa Payne with a receipt for the security deposit, and did not provide her with a Statement of Condition. The Court finds that the answer and counterclaims in this action constitute a demand for the return of the security deposit, and finds that the plaintiff has not returned the security deposit to the defendant.
The Court finds that the plaintiff has violated the provisions of G.L. c. 186, s.s.15B)(3)(a) and (6)(a) in that he did not place the defendant Clarissa Payne’s security deposit into an escrow account in compliance with that statute. The Court finds that the plaintiff’s violation of G.L. c. 186, s.15B(6)(a) constituted a violation of G.L. c. 186, s.15B(7), entitling the defendant Clarissa Payne to treble damages in the amount of $1,800.00[7], plus interest in the amount of $58.56[8], a total of $1,858.56.
In their written counterclaims, the defendants contend that the plaintiff has violated the provisions of G.L. c. 93A , as does the defendant Clarissa Payne individually.
Joseph Ponte, the plaintiff’s Trustee, testified that the plaintiff owns approximately 160 rental units in 34 buildings in Massachusetts. The Court finds that the plaintiff is engaged in the trade or business of residential real estate and is subject to the provisions of G.L. c. 93A .
The Attorney General, acting pursuant to statutory authority, has promulgated regulations, 940 CMR 3.17 et seq., that identify conduct on the part of an owner of residential property that is deemed to be an unfair or deceptive act or practice. 940 CMR 3.17(1) provides, in pertinent part: “(1) Conditions and Maintenance of a Dwelling Unit. It shall be an unfair or deceptive act or practice for an owner to:
“(I) Fail to comply with the State Sanitary Code or any other law applicable to the conditions of a dwelling unit within a reasonable time after notice of a violation of such code or law from the tenant or agency.”
The Court finds that the plaintiff’s breach of the implied warranty of habitability with respect to the defective window in the premises constitutes a violation of G.L. c. 93A . A landlord violates G.L. c. 93A when the Court finds that the breach of the implied warranty of habitability is material and substantial. Cruz Management Co., Inc. v. Thomas, 417 Mass. 782 (1994); Dorgan v. Loukas, 19 Mass.App.Ct. 959 (1985). The Court finds that this violation of G.L. c. 93A was not willful or knowing. Accordingly, the Court finds that the defendants are not entitled to an award of double damages under G.L. c. 93A , s.9. The Court finds that the defendants are entitled to statutory damages in the amount of $25.00 based on this claim, plus attorney’s fees.
940 CMR 3.17(6) provides, in pertinent part: “Miscellaneous. It shall be an unfair and deceptive practice for an owner to: (b) Retaliate or threaten to retaliate in any manner against a tenant for exercising or attempting to exercise any legal rights as set forth in M.G.L. c. 186, s.18…(f) To violate willfully any provisions of M.G.L. c. 186, s.14.”
The Court finds that the plaintiff’s violation of G.L. c. 186, s.18 was willful or knowing and constitutes a violation of 940 CMR 3.17(6)(b). The Court finds that the defendants are entitled to double statutory damages in the amount of $50.00 based on this violation.
The Court finds that the plaintiff’s violation of G.L. c. 186, s.14 in failing to eliminate the bedbug infestation constitutes a violation of 940 CMR 3.17(6)(f). The Court finds that the defendants are entitled to statutory damages in the amount of $25.00 based on this violation.
940 CMR 3.17(4) provides, in pertinent part: “Security Deposits and Rent in Advance. It shall be an unfair or deceptive practice for an owner to:…(d) fail to hold a security deposit in a separate interest-bearing account or provide notice to the tenant of the bank and account number, in accordance with M.G.L. c. 186, s.15B; (e) fail to submit to the tenant upon receiving a security deposit or within ten days after commencement of the tenancy, whichever is later, a separate written statement of the present condition of the premises in accordance with M.G.L. c. 186, s.15B;…(k) otherwise fail to comply with the provisions of M/.G.L. c. 186, s.15B.”
The Court finds that the plaintiff’s failure to place the defendant Clarissa Payne’s security deposit into an account in compliance with G.L. c. 186, s.15B constitutes a violation of 940 CMR 3.17(4)(d). The Court finds that the defendant Clarissa Payne is entitled to statutory damages in the amount of $25.00 based on this violation.
The Court finds that the plaintiff’s failure to submit to the defendant Clarissa Payne a statement of condition in compliance with G.L. c. 186, s.15B constitutes a violation of 940 CMR 3.17(4)(e). The Court finds that the defendant Clarissa Payne is entitled to statutory damages in the amount of $25.00 based on this violation.
The Court finds that the plaintiff’s failure to provide the defendant Clarissa Payne a receipt for the security deposit in compliance with G.L. c. 186, s.15B constitutes a violation of 940 CMR 3.17(4)(k). The Court finds that the defendant Clarissa Payne is entitled to statutory damages in the amount of $25.00 based on this violation.
ORDER FOR JUDGMENT
Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that:
1. Judgment enter for the defendants on their counterclaim for breach of the implied warranty of habitability in the amount of $11.84.
2. Judgment enter for the defendants on their counterclaim for violations of G.L. c. 186, s.14 in the amount of attorney’s fees.
3. Judgment enter for the defendants on their counterclaim for violations of G.L. c. 186, s.18 in the amount of $1,800.00, plus attorney’s fees.
4. Judgment enter for the defendants on their counterclaim for negligent failure to maintain the premises in the amount of $5,471.00.
5. Judgment enter for the defendants on their counterclaim for violations of G.L. c. 93A in the amount of $100.00, plus attorney’s fees.
6. Judgment enter for the defendant Clarissa Payne individually on her counterclaim for violations of G.L. c. 186, s.15B in the amount of $1,858.56, plus attorney’s fees.
7. Judgment enter for the defendant Clarissa Payne individually on her counterclaim for violations of G.L. c. 93A in the amount of $75.00, plus attorney’s fees.
8. Judgment enter for the plaintiff on the defendants’ counterclaim for intentional or reckless infliction of emotional distress.
9. The foregoing order for judgment paragraphs 1 through 5 and 8 result in a net judgment for the defendants for damages in the amount of $7,382.84, plus attorney’s fees.
10. The foregoing orders for judgment paragraphs 6 through 8 result in a net judgment for the defendant Clarissa Payne individually for damages in the amount of $1,933.56, plus attorney’s fees.
11. Execution issue thirty (30) days after the date that judgment enters.
12. Within ten (10) days of the date that judgment enters, the defendants and the defendant Clarissa Payne individually shall file with this Court a Motion for Counsel Fees, Costs and Expenses in accordance with the procedure prescribed in Yorke Mgmt. v. Castro, 406 Mass. 17, 20 (1989). Counsel shall also submit an affidavit and mark the matter for a hearing. After hearing, the Court shall enter final judgment including an award of reasonable attorney’s fees and costs nunc pro tunc to the date of this decision.
/s/ ANNE KENNEY CHAPLIN, FIRST JUSTICE
June 20, 2013
cc: Peter A. Saulino, Esq.
Jason D. Buffington, Esq.
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[1] In No. 11-SP-04802, the sole defendant was Clarissa Payne. On December 1, 2011, the parties agreed to add Joshua Pimental and Joshua Pimental (infant) as additional defendants in this case. The Court finds that, once the defendants Joshua Pimental and Joshua Pimental (infant) were added as parties in this action by agreement, the counterclaims originally filed by the defendant Clarissa Payne apply to them as well as to the defendant Clarissa Payne.
[2] The Court finds that the medical records of the defendant Joshua Pimental (infant) show that he was seen by a doctor on June 27, 2011.
[3] No. 11-CV-00507.
[4] There was no evidence at trial of the exact date on which the defendants vacated the premises. The defendant Clarissa Payne testified that they vacated the premises “shortly after” the August 18, 2011 hearing in No. 11-CV-00507. The Court finds that, in their answer and counterclaims in No. 11-SP-03596 filed on September 2, 2011, they state that they reside in the premises. Accordingly, the Court will use September 3, 2011 as the date on which the defendants vacated the premises for the purpose of computing damages.
[5] The per diem rental amount is calculated as follows: $600.00 x 12 = $7,200.00 ? 365 = $19.73.
[6] “Clear and convincing” evidence is that which “induces in the mind of the trier a reasonable belief that the facts are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.” Callahan v. Westinghouse Broadcasting Co., Inc., 372 Mass. 582 (1977), quoting Dacey v. Connecticut Bar Assoc., 170 Conn. 520, 537, n. 5 (1976); Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 871 (1975).
[7] This amount is calculated as follows: $600.00 x 3 = $1,800.00.
[8] This amount is calculated as follows: $600.00 x 5% = $30.00 ? 365 = $.08/day x 732 (June 20, 2011 through June 20, 2013) = $58.56.