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Housing Court Judge WILBUR P. EDWARDS, JR., cases from 2013 to mid-2014

Docket No.:Docket No. 13-SP-03661

Parties:Lilia Silva, PLAINTIFF v. Isaura Tavares, DEFENDANT

Judge:/s/ WILBUR P. EDWARDS, JR.

Date:December 3, 2013

SOUTHEASTERN DIVISION

FINDINGS OF FACT, RULINGS OF LAW, AND ORDER FOR JUDGMENT

 

This summary process action was filed by the Plaintiff, Lilia Silva (“Silva” or the

“Plaintiff”), seeking possession and rental arrearages. The Defendant, Isaura Tavares

(“Tavares”or the “Defendant”) filed an Answer with Counterclaims, alleging breach of the

implied warranty of habitability and the covenant of quiet enjoyment. Both parties were self-

represented at trial.

Based upon all the credible testimony and evidence presented at trial, and the reasonable

inferences drawn therefrom, the Court finds as follows:

 

The Plaintiff’s Case

 

The parties stipulated and the Court finds the following:

 

1. The Plaintiff is the owner of the apartment unit at 348 N. Montello Street, Apt. #2, in

Brockton, MA. (the “Premises”).

 

2. The Defendant is a tenant at will whose tenancy began in August 2012.

 

3. The monthly rent is $1,000.00 and is due on the first of the month.

 

4. The Plaintiff served the Defendant with a 14 Day Notice to Quit and a Summons and

Complaint.

 

The Court further finds that the Plaintiff served the Notice to Quit on the Defendant on

June 25, 2013 with a demand for payment of $4,020.00. The Court finds that the Defendant was

served with a Summons and Complaint on August 16, 2013 with an Account Annexed in the

amount of $6,020.00 for the periods January through March 2013, and June through August 2013

at the rate of $1,000.00 a month plus an outstanding balance of $20.00 for the month of April

2013. The Plaintiff also testified that she had not received rent for the month of September 2013

for a grand total of rent due of $7,020.00. Accordingly, the Court finds that the rent arrearage

due the Plaintiff for the Premises is $7,020.00.

The Court finds that the Plaintiff has proven her prima facie case for possession and

damages against the Defendant for unpaid rent in the amount of $7,020.00, plus costs, calculated

at the rate of $1,000.00 per month for the periods January through March 2013 and June through

September 2013 plus $20.00 for the month of April 2013. The Defendant presented her

counterclaims.

 

The Defendant’s Defenses and Counterclaims

 

M.G.L. c. 239, §8A ¶1 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.” Pursuant to M.G.L. c. 239, §8A ¶2, 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 a defense to possession 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; (3) the premises is not located

within a hotel/motel or rooming house or lodging house where the tenant has maintained

occupancy for less than three consecutive months; and (4) the landlord does not show that the

conditions cannot be remedied unless the premises are vacated.

 

The Implied Warranty of Habitability and The Covenant of Quiet Enjoyment

 

The Defendant alleges that the conditions at the Premises at the commencement of the

tenancy breached the implied warranty of habitability. The Defendant also alleges that the

Plaintiff’s actions in failing to repair or correct conditions in the Premises including the presence

of mice, broken screens, water leaks/ ceiling tile damage throughout the premises and broken

front door dead locks also breached the covenant of quiet enjoyment pursuant to M.G.L. c. 186,

§14.

The implied warranty of habitability is the landlord’s promise that the premises will meet

certain standards set out in the State Sanitary Code, State Building Code, or other regulations

concerning residential premises. A landlord has breached the implied warranty of habitability

when any part of the premises occupied or used by the tenant is in material violation of the

minimum standards expressed in the State Sanitary Code. Boston Housing Authority v.

Hemingway, 363 Mass. 184 (1973). A landlord must have actual or constructive notice of the

condition creating the violation. McKenna v. Begin, 3 Mass.App.Ct. 168 (1975). Damages are

assessed from the date the landlord had notice of the condition of disrepair. Berman & Sons v.

Jefferson, 379 Mass. 196 (1979). The measure of damages for breach of the implied warranty

of habitability is the difference between the fair rental value of the premises as warranted and the

fair rental value of the premises with the defects. McKenna v. Begin, supra at 172.

M.G.L. c. 186, §14 provides, in pertinent part: “Any lessor or any 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 months’ rent, whichever is greater, and the costs of the action,

including a reasonable attorney’s fee…” A landlord violates M.G.L. c. 186, §14 where he had

notice, or reason to know of the serious condition in the tenant’s apartment, and failed to take

appropriate corrective measures. Al Ziab v. Mourgis, 424 Mass. 847, 850-851 (1997); Cruz

Management Co., Inc. v. Thomas, 417 Mass. 782 (1994).

Not every breach of the implied warranty of habitability constitutes a violation of M.G.L.

c. 186, §14. While the statute does not require that the landlord’s conduct be intentional, Simon

v. Solomon, 385 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. 273, 284-285 (1994); Lowery v. Robinson, 13 Mass.App.Ct. 982 (1982).

As the Defendant’s claims for breach of the implied warranty of habitability and breach

of the covenant of quiet enjoyment arise from the same set of facts, the Court will review these

issues together.

The Defendant testified that at the time she moved into the Premises in August of 2012

there were bedbugs and roaches in the unit. She confirmed that the Plaintiff had the Premises

treated but that the roaches and bedbugs returned in December of 2012. The Defendant also

testified that there was a hole in the ceiling in the Premises and as a result water leaked into

various parts of the Premises. She testified that she left messages for the Plaintiff in January,

June and July of 2013 concerning this condition. The Court found this testimony credible.

The Defendant introduced into evidence a Violation Report #920980 from the City of

Brockton Board of Health (“Board of Health”) dated July 2, 2013 and signed by Mary Jane

Butler, Sanitary Inspector, under the pains and penalties of perjury. Defendant’s Exhibit A

According to the report, Ms. Butler conducted an inspection of the Premises on July 1, 2013 in

which she indicated the following violations of the State Sanitary Code codified at 105 CMR

410 and required that same be repaired by July 23, 2013:

“General:

410.550(B) Professionally exterminate for mice, roaches, and bedbugs and forward a copy of invoice to this office

.551 Repair/replace all missing and Broken screens

.351 Repair leak above kitchen, bathroom, hallway, bedroom

.500 Repair ceiling in back hallway

.500 Repair both dead locks on front doors ”

 

Defendant’s Exhibit A

The Plaintiff confirmed that when the Defendant moved into the Premises, there were

roaches and bedbugs and the stove was not working. She indicated that a company called

Terminex treated the Premises for the vermin infestation on September 1, 2012. This company

was then paid and retained to treat the Premises every three months for mice, roaches and

bedbugs according to the Plaintiff. She confirmed that she received notice in May 2013 from the

Defendant as to the presence of roaches and bedbugs. The Plaintiff stated that she started repairs

to the Premises on or about September 15, 2013 including making repairs to the screens and

ceiling tiles and that one dead lock had been repaired. The Court found this testimony credible.

The Court finds that the Defendant has sustained her burden to show that the conditions

at the Premises during her tenancy breached the implied warranty of habitability and that the

Plaintiff knew or should have known of these conditions pursuant to M.G.L. c. 239, §8A ¶2 .

There was testimony and documentation presented by the Defendant that the following

conditions existed in the Premises and that the Plaintiff was aware of or was timely notified of

these conditions by the Defendant: 1) presence of mice, roaches and bedbugs; 2) missing and

broken screens; 3) water leak; 4) damaged ceiling tiles throughout the Premises; 5) damage to

broken front door locks. Defendant’s Exhibit A While the Court heard testimony from the

Plaintiff that certain repairs were commenced on or about September 15, 2013, there was no

further testimony or documentation to indicate treatment for the vermin, repair of the leak and

repair of the remaining deadlock on the door. There was no testimony presented by either party

to indicate that the repairs were completed prior to the trial.

The Court determines that the Defendant is entitled to a rent abatement due to the

Plaintiff’ breach of the implied warranty of habitability. The Court calculates the amount of rent

abatement due as $4,149.38 based on the following: for the period of December 1, 2012 through

January 1, 2013 due to the presence of bedbugs and roaches – twenty per cent (20%); for the

period January 2, 2013 through July 2, 2013 due to the continued presence of bedbugs, roaches

and water leakage -forty per cent (40%) ; for the period July 3, 2012 through the date of trial on

September 18, 2013 for the continued presence of bedbugs, roaches, mice and additional broken

screens, damage to ceiling and broken front door deadlock – sixty per cent (60%) . The

computation for these period is: ($32.88/day x 20% = $6.58 x 33 days = $217.14) +

($32.88/day x 40% = $13.15 x 182 days = $2,393.30) + ($32.88/day x 60% = 19.73 x 78 days

= $1,538.94) = $4,149.38.

The Court finds that the Defendant is further entitled to a finding in her favor on the

breach of quiet enjoyment counterclaim. The Defendant testified credibly that she had requested

repairs to the Premises in January, June and July 2013 and treatment for the vermin consisting of

the roaches and the bedbugs. Further, she submitted documentation from the Board of Health

indicating that as of July 1, 2013, there were the various conditions in the Premises, only a few of

which the Plaintiff acknowledged repairing on or about September 15, 2013. Accordingly, the

Court pursuant to M.G.L. c. 186, §14 will award damages to the Defendant in the amount of

$3,000.00 representing three (3) times the monthly rent of $1,000.00.

A litigant is not entitled to duplicate recoveries on separate legal theories for the same

factual wrongs and injuries. A party who prevails on more than one cause of action is entitled to

recover upon whichever legal theory yields the greater award. Darmetko v. Boston Housing

Authority, 378 Mass. 758, 762 (1979); Leardi v. Brown, 394 Mass. 151, 157 (1985). The

Plaintiff’s violations of M.G.L. c. 186, §14 and for the breach of the implied warranty of

habitability arise from the same facts and involve the same damages. The Court will award

damages to the Defendant under the breach of the implied warranty of habitability as those

damages provide the greater recovery to the Defendant.

 

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

$7,020.00, plus costs in the amount of $177.70, for a total of $7,197.70.

 

2. Judgment enter for the Defendant on her counterclaim for breach of the implied

warranty of habitability in the amount of $4,149.38.

 

3. Judgment enter for the Defendant on her counterclaim for breach of the covenant of

quiet enjoyment pursuant to M.G.L. c. 186, §14 but no duplicative damages are awarded.

 

4. The foregoing order for judgment paragraphs 1 through 3 result in a net monetary

judgment for the Plaintiff in the amount of $3,048.32.

 

5. Judgment for the Defendant for possession pursuant to the fifth paragraph of

M.G.L.c.239,§ 8A on the condition that within seven (7) days of her receipt of this

 

ORDER the Defendant deposits with the Clerk of this Court, the sum of $2,870.62, plus costs in the amount of $177.70, a total of $3,048.32 in the form of certified check, cashier’s check, or money order, payable 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 $2,870.62 plus costs in the amount of $177.70, a total of $3,048.32, on the next business day following the expiration of the tenth (10th) day from the date of this Order.

 

/s/ WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

December 3, 2013

 

 

 

 

Docket No.:Docket No. 13-CV-00004

Parties:Marie J. Seide, PLAINTIFF v. Andre Paul and Irlande Paul, DEFENDANTS

Judge:/s/ WILBUR P. EDWARDS, JR.

Date:April 26, 2013

SOUTHEASTERN DIVISION

FINDINGS OF FACT, RULINGS OF LAW, AND ORDER FOR JUDGMENT

 

The Plaintiff, Marie J. Seide (“Plaintiff” or “Seide”), initiated a summary process action against the Defendants, Andre Paul and Irlande Paul (“Defendants” or “Andre Paul” or “Irlande Paul”), for possession for non-payment of rent in #12-SP-05274 as to Premises at 13 Pleasant View #1, Brockton, MA (the “Premises”). The Defendants filed a timely Answer and Counterclaims seeking damages related to alleged breach of the implied warranty of habitability and the covenant of quiet enjoyment due to the failure of the Plaintiff to make repairs.

On December 12, 2012, the date initially scheduled for trial, the parties moved to have the case transferred to the civil docket as possession was moot. The Court granted the motion and the case was transferred to the civil docket and scheduled for trial on January 9, 2013. On the date of trial, only the Defendants appeared. The Plaintiff was non-suited on her rent claim and defaulted as to the Defendants’ counterclaims. The Defendants were self-represented at the trial as to their damages.

Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds as follows:

 

DEFENDANTS’ COUNTERCLAIMS

 

Breach of the Implied Warranty of Habitability and Breach of the Covenant of Quiet Enjoyment

 

The Defendants allege that the Plaintiff breached the implied warranty of habitability during the tenancy by failing: a) to provide heat and hot water to the premises; b) to repair damaged window; and, c) to re-grout around tub. As the facts related to the Defendants’ allegations also incorporate their quiet enjoyment claim, the Court will treat the two issues together.

The implied warranty of habitability is the landlord’s promise that the premises will meet certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the tenant is in material violation of the minimum standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). A landlord must have actual or constructive notice of the condition creating the violation. McKenna v. Begin, 3 Mass.App.Ct. 168 (1975). Damages are assessed from the date the landlord had notice of the condition of disrepair. Berman & Sons v. Jefferson, 379 Mass. 196 (1979). The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises as warranted and the fair rental value of the premises with the defects. McKenna v. Begin, supra at 172.

In pertinent part, M.G.L. c. 186, s.14 provides: “Any lessor or any 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 months’ rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee…”. A landlord violates M.G.L. c. 186, s.14 where he had notice, or reason to know of the serious condition in the tenant’s apartment, and failed to take appropriate corrective measures. Al Ziab v. Mourgis, 424 Mass. 847, 850-851 (1997); Cruz Management Co., Inc. v. Thomas, 417 Mass. 782 (1994).

Not every breach of the implied warranty of habitability constitutes a violation of M.G.L. c. 186, s.14. While the statute does not require that the landlord’s conduct be intentional, Simon v. Solomon, 385 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. 273, 284-285 (1994); Lowery v. Robinson, 13 Mass.App.Ct. 982 (1982).

Defendant Andre Paul testified that the initial rent for the Premises when the tenancy began in 1999 was $850.00 and was $1,000.00 at the time he vacated the Premises. Defendant’s Exhibit #4. The rent, according to his testimony, also included utilities. He testified that the thermostat that controlled the heat for the Premises was located in the second floor apartment occupied by the Plaintiff. He also testified that the Plaintiff turned off the heat to the Premises on or about October 10, 2012, the date on which the Plaintiff served a Notice to Quit. The Court credits this testimony.

The Defendant also testified that he contacted the City of Brockton Board of Health (“Board of Health”) on or about November 23, 2012. As a result, Mary Jane Butler, Sanitary Inspector for the Board of Health, inspected the Premises and issued Violation #920715 on November 26, 2012 (the “November 26th Violation Notice). The November 26th Violation Notice was signed and certified under the pains and penalties of perjury. Defendants’ Exhibit B.

The Sanitary Inspector identified the following as violations in the November 26th Violation Notice:

 

“General:

 

410.200Insufficient heat 60-61? at 2 p.m. – adjust thermostat to increase heat to 68? from 7 a.m. to 11p.m. and 64? from 11:01 p.m. to 6:59 a.m. do not shut off heat when not at home. .200 Install thermostat in first floor apartment

Bathroom: 410.501(A) Repair bathroom window .351 Re grout around tub”

 

The Plaintiff was ordered to correct these conditions on or before December 14, 2012. Defendants’ Exhibit B.

 

The Court finds that the fair rental value of the premises was $1,000.00 per month for the Premises through December 1, 2012, the date the Defendants vacated the Premises. As the Defendant testified credibly that the Plaintiff turned off the heat in the Premises on October 10, 2012 (and the heat was controlled by the Plaintiff via a thermostat in her unit as identified in Defendants’ Exhibit B), the Court will calculate the damages due the Defendants for the Plaintiff’s breach of the implied warranty of habitability from that date. McKenna v. Begin, supra. The Court finds that the Defendants are entitled to one hundred per cent (100%) rent abatement for the 53 days between October 10, 2012 through December 1 2012, during which time the Premises lacked heat, calculated as follows: ($32.88/day[1] x 100% = $32.88 x 53 days = $1,742.64.[2]

The Defendants allege that the adverse conditions at the Premises also breached the covenant of quiet enjoyment pursuant to M.G.L. c. 186, s.14. The Court finds that the Plaintiff breached the covenant of quiet enjoyment in that, following service of a Notice to Quit on October 10, 2012, the Plaintiff turned off the heat to the Premises. There was no evidence that the Plaintiff ever turned the heat back on in the Premises or installed a thermostat prior to the Defendants vacating the Premises on December 1, 2012. In calculating the damages due the Defendants for Plaintiff’s breach of the covenant of quiet enjoyment, the Court must under M.G.L. c. 186, s.14 compare the Defendants’ actual damages versus the statutory damages permitted under the statute.[3] The Defendants presented no evidence of actual damages. Accordingly, the Court finds that the Defendants have met their burden and awards damages of three months rent in the amount of $3,000.00 ($1,000.00 a month trebled) due to the Plaintiff’s failure to timely restore heat to the Premises.

A litigant is not entitled to duplicate recoveries on separate legal theories for the same factual wrongs and injuries. A party who prevails on more than one cause of action is entitled to recover upon whichever legal theory yields the greater award. Darmetko v. Boston Housing Authority, 378 Mass. 758, 762 (1979); Leardi v. Brown, 394 Mass. 151, 157 (1985). The Plaintiff’s violations of M.G.L. c. 186, s.14 and for the breach of the warranty of habitability essentially arise from the same facts and involve the same damages. The Court will award damages to the Defendants under the quiet enjoyment claim as those damages provide the greater recovery to the Defendants.

 

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 but no duplicative damages are awarded.

 

2. Judgment enter for the Defendants on their counterclaim for breach of the covenant of quiet enjoyment in the amount of $3,000.00.

 

3. Execution to issue thirty (30) days from the date that judgment enters.

 

/s/ WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

April 26, 2013

 

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[1]The per diem rental amount is calculated as follows: $1,000.00 x 12 = $12,000.00 ? 365 = $32.88.

 

[2]The Court found no breach by the Plaintiff of the implied warranty of habitability as to the conditions involving repair of a bathroom window and re-grouting of the bathtub.

 

[3]M.G.L. c. 186, s.14 in relevant part: “Any person who commits any act in violation of this section shall also 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.”

 

 

 

 
Docket No.:Docket No. 13-SP-01134

Parties:Lisa Willett and James Willett, PLAINTIFFSv. Michelle Patry and Luis Icaza, DEFENDANTS

Judge:/s/ WILBUR P. EDWARDS, JR.

Date:April 25, 2013

SOUTHEASTERN DIVISION

FINDINGS OF FACT, RULINGS OF LAW, AND ORDER FOR JUDGMENT

This summary process action was brought by the Plaintiffs, Lisa Willett and James Willett (“Plaintiffs” or ” Lisa Willett” or “James Willett” respectively) against the Defendants, Michelle Patry and Luis Icaza (“Defendants” or “Michelle Patry” or “Luis Icaza” respectively) for possession and damages for unpaid rent in the amount of $13,650.00. Both parties were self-represented; James Willett did not attend the trial[1]. The Defendants did not file an Answer but presented a defense and counterclaim at trial based on an allegation of breach of the implied warranty of habitability[2]. The Court conducted the trial over a two day period, March 27, 2013 and April 3, 2013.

Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds as follows:

The parties stipulated and the Court finds that the Plaintiffs are the owners of a multi-family building located at 17-19 East Main Street in Brockton, MA (the “Building”) and the Defendants reside in the second floor rear apartment in the Building (the “Premises”). The Defendants are tenants at will and commenced occupancy in May of 2010 as indicated in the Stipulation. The monthly contract rent is $975.00, due on or before the first of each month. The parties also stipulated and the Court finds that the rent due through March 31, 2013 is $14,625.00 calculated at the rate of $975.00 per month for the period January 1, 2012 through March 31, 2013.

The Plaintiffs served the Defendants with a 14-Day Notice to Quit on February 13, 2013 with a demand for rent in the amount of $13,650.00. Plaintiff’s Exhibit 1. The Plaintiffs served the Defendants with a Summons and Complaint on March 1, 2013 with an Account Annexed in the amount of $13,650.00 for rent from January through December 2012 and January 1, 2013 through February 28, 2013.

The Defendants failed to present testimony regarding non-payment of rent for the period of January 2012 through December 2012 and January 1, 2013 through March 31, 2013. The Court finds that the Plaintiffs have proven their prima facie case for possession and damages against the Defendants for unpaid rent in the amount of $14,625.00, plus costs, calculated at the rate of $975.00 per month for the period January 2012 through December 2012 and January 1, 2013 through March 31, 2013.

The Defendants presented their counterclaim.

 

THE DEFENDANT’S COUNTERCLAIMS

 

M.G.L. c. 239, s.8A p.1 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.” Pursuant to M.G.L. c. 239, s.8A p.2, 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 a defense to possession 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; (3) the premises is not located within a hotel/motel or rooming house or lodging house where the tenant has maintained occupancy for less than three consecutive months; and (4) the landlord does not show that the conditions cannot be remedied unless the premises are vacated. The Defendants have alleged in their counterclaim that the Plaintiffs breached the implied warranty of habitability by failing to supply heat to the Premises and repair certain conditions.

Defendant Patry on the first day of trial testified that there were adverse conditions at the Premises during her tenancy including lack of heat from January 2012 through the date of trial on March 27, 2013. She testified that she contacted the City of Brockton Board of Health (“Board of Health”) concerning conditions in the Premises sometime in January of 2013. As a result of that contact, Sanitary Inspector for the Board of Health, Mary Jane Butler, conducted an inspection of the Premises on January 10, 2013. Following the inspection, Inspector Butler issued Violation #920784 to the Plaintiffs (signed under the pains and penalties of perjury) on January 10, 2013 (hereafter the “January 10, 2013 Violation Notice”). Defendant’s Exhibit B. In her January 10, 2013 Violation Notice, Sanitary Inspector Butler identified the following violations and required completion of repairs by January 30, 2013:

 

[^Bathroom:

 

410.351 Secure toilet to floor

.500Replace water damaged tiles

 

 

Kitchen:
410.501(A)Make windows weather tight

.500Secure drop ceiling

.500Repair or replace stove

 

Bedroom:
410.501(A)Make windows weather tight

.500Replace water damaged ceiling tiles

 

General

 

410.482Replace all smoke and carbon monoxide detectors^]

 

Plaintiff’s Exhibit 2

 

Plaintiff Lisa Willett responded that the Plaintiffs had never received any complaints from either the Defendants or any other tenants in the Building regarding heat for the period January 1, 2012 through the date of trial other than the notice from the Board of Health. The Court notes that the January 10, 2013 Violation Notice indicates that the Inspector found no violation regarding lack of heat in the Premises. The Court therefore credits Plaintiff Lisa Willett on this heating issue and does not credit Defendant Patry as to the alleged lack of heat in the Premises from January of 2012.

Plaintiff Lisa Willett’s testimony on the first day of trial challenged Defendant Patry’s testimony and indicated that the conditions identified in the January 10, 2013 Violation Notice had all been repaired. At the next trial date on April 4, 2013, Lisa Willett submitted into evidence a document purported to be signed by Mary Jane Butler indicating that the conditions shown on the January 10, 2013 Violation Notice had been resolved including installation of smoke and carbon monoxide detectors sometime in February 2013. The Court credits this testimony.

There was no testimony as to the actual date any of the conditions identified in the January 10, 2013 Violation Notice were actually repaired.

Breach of the Implied Warranty of Habitability

 

The Defendants allege that the conditions in the Premises breached the implied warranty of habitability. The implied warranty of habitability is the landlord’s promise that the premises will meet certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the tenant is in material violation of the minimum standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). A landlord must have actual or constructive notice of the condition creating the violation. McKenna v. Begin, 3 Mass.App.Ct. 168 (1975). Damages are assessed from the date the landlord had notice of the condition of disrepair. Berman & Sons v. Jefferson, 379 Mass. 196 (1979). The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises as warranted and the fair rental value of the premises with the defects. McKenna v. Begin, supra at 172.

The Court finds that Defendant Patry failed to testify credibly concerning the alleged lack of heat in the Premises since January of 2012. There was no evidence that the Defendants ever contacted either a municipal department or the Plaintiffs concerning lack of heat in the Premises. The Court finds, though, that the Defendants have sustained their burden of proof on the remaining portions of their counterclaim for breach of the implied warranty of habitability, as they presented credible documentation from the Board of Health in support of the other conditions in the Premises. These conditions included the unsecured toilet, water damaged tiles, missing smoke and carbon monoxide detectors, insufficiently weather tight windows and a non-functioning stove as of the January 10, 2013 Violation Notice. The Court finds that the first notification to the Plaintiffs of these conditions was by the City of Brockton Board of Health on January 10, 2013. There was no testimony as to the date some of the repairs were completed by the Plaintiffs.

As the Plaintiffs have breached the implied warranty of habitability, the Court finds that the Defendants are entitled to a total rent abatement in the amount of $740.74, calculated as follows: thirty per cent (30%), for the period January 10, 2013 to March 27, 2013, calculated as follows: $32.05/day[3] x 30% = $9.62/day x 77 days[4] = $ 740.74.

It is clear to the Court that the Defendants were clearly in arrears of their rent prior to the service of the Notice to Quit on February 13, 2013 and as also stipulated to by the parties. The Court finds that the Defendants are not entitled to a defense to possession under M.G.L. c. 239, s.8A[5].

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 and damages for unpaid rent in the amount of $14,625.00, plus costs in the amount of $179.95, a total of $14,804.95.

 

2. Judgment enter for the Defendants on their counterclaim for breach of the implied warranty of habitability in the amount of $740.74.

 

3. The foregoing order for judgment paragraphs 1 and 2 result in a net award of damages to the Plaintiffs in the amount of $13,884.26, plus costs in the amount of $179.95, a total of $14,064.21.

 

4. Execution issue ten (10) days after the date that judgment enters.

 

/s/ WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

April 25, 2013

 

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[1]The parties had previously appeared before the Court in #13-SP-00258 Lisa Willett and James Willett v. Michelle Patry and Luis Icaza. That case was dismissed without prejudice pursuant to Uniform Summary Process Rule 2(b). The Court takes judicial notice of #13-SP-00258.

 

[2]”When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” M.R.C.P. 15(b). Both parties proceeded at trial as to the alleged conditions in the Premises.

 

[3]The per diem rental rate is calculated as follows: $975.00/month x 12 = $11,700.00 ? 365 = $32.05/day.

 

[4]The period January 10, 2013 through March 27, 2013 consists of 77 days.

 

[5]The Court takes note that in the first action between the parties, #13-SP-00258, the Plaintiffs had served the Defendants with a 14-Day Notice to Quite on December 14, 2012, a date prior to the inspection by the Board of Health on January 10, 2013.

 

 

 

 
Docket No.:Docket No. 11-CV-00064

Parties:Celia Vasquez, PLAINTIFF v. Sinatra Montgomery, DEFENDANT

Judge:/s/ WILBUR P. EDWARDS, JR.

Date:January 17, 2013

SOUTHEASTERN DIVISION

 

This civil action was brought initially as a Small Claims matter by the Plaintiff, Celia Vasquez, (“Plaintiff” or “Vasquez”) against her former landlord, Defendant Sinatra Montgomery (“Defendant” or “Montgomery”). The matter was subsequently converted on motion into a civil complaint against the Defendant containing four counts. The Plaintiff seeks damages against Mr. Montgomery as to alleged rental overpayments and late charges paid to him by her during her tenancy at Premises at 15 East Main Street, First Floor, Brockton, MA. She also alleges fraud and seeks damages related to a $1,225.00 security deposit paid during her tenancy. She has further made a claim under M.G.L. c. 93A.

Mr. Montgomery filed a timely counterclaim in the Small Claims action seeking unpaid rent, return of a key and alleged property damage caused by the Plaintiff to either the Premises or the exterior of the apartment building. He has further alleged violations of the lease between the parties as to unauthorized persons in the Premises. As set out in detail below, the Court has Dismissed without prejudice Mr. Montgomery’s property damage claim pursuant to M.G.L. c. 186, s.15B(6).

The Plaintiff was represented by counsel; the Defendant was self-represented. The trial took place over three days: January 12, 2012, January 31, 2012 and March 2, 2012.

Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds as follows:

Testimony and Evidence as to Plaintiff’s Counts I, II, and IV
The first witness to testify as to the Plaintiff’s case was the Defendant Sinatra Montgomery. He testified that he has owned the three family structure at 15 East Main Street in Brockton, MA (the “Building”) since July of 2001. He resides on the third floor of the Building. He confirmed that the Plaintiff was a tenant on the first floor from December 1, 2007 through October 7, 2009 as a recipient of a voucher under the Massachusetts Rental Voucher Program (MRVP) which was administered through the Brockton Housing Authority[1]. He has been a participant as a landlord in the program and he understands that the rent he received is based upon rent at surrounding properties.

He testified that it was his practice to give rent receipts to his tenants and that he keeps a rent receipt book. Either he or his wife signed the receipts given to tenants[2]. He also testified that he charged a $30.00 late fee for payments made more than 30 days after the due date as shown on Receipt 730067.

He stated he received $14,700.00 from the Brockton Housing Authority for the period December 2007 through November 2008 at the rate of $1,225.00 a month and $13,000.00 for the period December 2008 through September 2009 at the rate of $1,300.00 a month. He identified the various separate receipts given to the Plaintiff along with his actual rent receipt book, both of which were entered into evidence. Plaintiff’s Exhibit 2. The Plaintiff’s monthly portion of the rent was $196.00. Montgomery testified that he requested an increase of the monthly rent to $1,300.00 as of December 2008. The Court will infer that this request was to the Brockton Housing Authority, that the increase was granted, and the Plaintiff’s portion of rent at $196.00 remained the same. This inference is derived from a review of the receipts.

Montgomery reviewed the top of page 2 of the document marked as Defendant’s Exhibit C (the “Lease”) as to provisions related to late fees. He indicated that the Lease did not contain any set late fee amount. The Court found this testimony credible.

The Court has reviewed the Lease and finds that the Contract rent for the period December 2007 through November 2008 was $1,225.00. The Court further finds based upon the testimony of Montgomery and review of the documentation that the Contract rent for the period December 1, 2008 through September 2009 was $1,300.00, of which $196.00 was the Plaintiff’s portion. The Lease, the Court finds, did not have any specific amount due for a late charge if the rent was not paid timely. Further, the Lease required the Plaintiff’s payments to be “due and payable on the 14th or before Day (sic) of the month beginning on December 14, 2007.” Plaintiff’s Exhibit 5, Contract Rent Provision.

The Court has reviewed the rent receipts for the period of the Plaintiff’s tenancy, December 2007 through October 2009. Plaintiff’s Exhibit 2 including rent receipt book. The receipts were all in the Plaintiff’s name. These receipts indicated amounts received from the Brockton Housing Authority, from the Plaintiff, and, in some instances, combined payments from both of the above, all as indicated below. These receipts also included amounts the Defendant charged the Plaintiff for late fees. From a review of the receipts combined with the Defendant’s testimony, the Court will infer and find the following as to the payments made to the Defendant by either the Brockton Housing Authority or the Plaintiff:

 
Payments by the Brockton Housing Authority

 

12/7/07 through 11/1/08 (12 months) at $1,029.00 month = $12,348.00[3]

 

12/1/08 through 9/2/09 (10 months) at $1,104.00 month = $11,040.00[4]

 

Total$23,388.00
[^Payments Made by the Plaintiff[5]

 

1/2/08$196.00December 2007

2/2/08$196.00January 2008

2/29/08$196.00February 2008

5/2/08$196.00March 2008

 

(Late charge also of $30.00)

 

5/2/08$196.00April 2008

 

(Late charge also of $30.00)

 

5/2/08$100.00
Late fee payment for March and April

 

5/31/08$40.00Credit

5/31/08$196.00May 2008

7/1/08$196.00June 2008

8/1/08$196.00July 2008

8/6/08$44.00Credit

9/2/08$196.00August 2008

10/1/08$196.00September 2008

11/1/08$18.00Credit

11/1/08$226.00
October 2008 and payment of late charge of $30.00

 

12/1/08$196.00November 2008

1/2/09$200.00December 2008

 

(Late charge of $30.00 for November)

 

1/30/09$208.00January 2009 and $12.00 late charge payment

1/30/09$196.00February 2009

3/1/09$196.00March 2009

4/1/09$196.00April 2009

5/2/09$196.00May 2009

6/2/09$196.00June 2009

7/2/09$196.00July 2009

8/2/09$150.00August 2009

9/2/09$ 76.00$76.00 late charge

 

Total: $4,394.00^]

 

(inclusive of late fee payments by the Plaintiff of $222.00)

Celia Vasquez testified that she currently lives in Rockland and confirmed that she resided in the Defendant’s first floor apartment at 15 East Main Street, Brockton with her three children. She is still receiving an MRVP voucher administered through the Rockland Housing Authority and she has had a voucher since 2005. She identified the lease (the “Lease”) between the parties dated December 8, 2007. Plaintiff’s Exhibit #5 and Defendant’s Exhibit C with additional documentation. She also identified the individual receipts described above.

She indicated that she does not read English and could not read the Lease. She also receives AFDC (Aid to Families with Dependent Children) of $245.00 every two weeks. She testified that she vacated the apartment on or around October 1, 2009. The Court found this testimony credible.

She went on to testify that Montgomery demanded more than the $196.00 monthly payment a number of times from her and that she gave him whatever he demanded, particularly during the summer of 2009. When she paid these additional amounts, she did not always receive a receipt from Montgomery. She also desired to move and sent Montgomery letters written with the assistance of her daughter-in-law on April 3, 2009 and May 13, 2009 advising Montgomery of her desire to terminate her tenancy.[6] Plaintiff’s Exhibit #7 and #8 and Defendant’s Exhibit A. Montgomery responded to the initial letter, she stated, by indicating that the Lease required that she give him 60 days notice to terminate the lease. Accordingly, she wrote the second letter to satisfy Montgomery’s request.

While at the Premises, she did some repairs including fixing her son’s closet door which was off the hinges, putting a lock on a bedroom door and replacing a door at Montgomery’s request. She also painted the Premises and was told by Montgomery that he was happy with the job but not happy with the use of a “flat” paint. She also stated that she returned the keys to Montgomery at the end of the tenancy on a Friday but didn’t know the specific date. At the time that she vacated, she also requested the return of her security deposit which she did not receive despite her efforts over an initial two day period after she vacated the apartment. She denied that she had caused any damages on her part to the apartment.

After she vacated, she received an Exit Inspection document from Montgomery on or about November 7, 2009 which included a claim from Montgomery for seven (7) days rent in October 2009, back rent and other charges for September 2009, coupled with late fee charges. Plaintiff’s Exhibit #10.

On December 17, 2007, she paid a gas bill submitted to her by Montgomery in the amount of $52.40, but it was her understanding that under the Lease she only had to pay gas for the stove. She paid Montgomery the $52.40 but did not get a receipt. Plaintiff’s Exhibit #11.

On cross-examination by Montgomery, she identified her rental application, Defendant’s Exhibit B, along with Defendant’s Exhibit C which is a duplicate copy of the Lease with an attachment including the Plaintiff’s driver’s license along with information on a passbook security deposit. Defendant’s Exhibit C . The Court credits this testimony.

The next witness to testify was a Rosario Marino. She indicated that she was familiar with the Premises and the Building. She met Montgomery when Vasquez vacated the Premises and saw Vasquez deliver the keys while she was helping Vasquez move. She confirmed that one of Vasquez’ friends fixed the door and that Vasquez cleaned the apartment at the end of the tenancy. She also stated that Montgomery inspected the apartment Premises at that time. She also confirmed that Vasquez attempted to have Montgomery return the security deposit that day. The Court credits this testimony.

Rafael Ortiz is Vasquez’ boyfriend. He visited her daily and would visit for a few hours. He would see Montgomery 3 or 4 times a week. Ortiz testified that he has his own residence and did not live with Vasquez at the Premises. He also said that Vasquez requested that he assist in paying the rent and that he paid $500.00. He also indicated that he helped Vasquez to move out along with fixing a closet door, exchanged another door and painted the apartment. The Court credits this testimony.

Tami Quinones is Vasquez’s daughter. She testified that she visited her mother daily and stated that Montgomery was very strict as to having visitors leave her mother’s apartment at 6:00 p.m. She never “met” Montgomery but saw him. Her mother asked for assistance with the rent. As a result, she gave her $100.00 to $300.00. The Court credits this testimony.

Vonda Montgomery testified as the wife of the Defendant. She confirmed that the rent from Vasquez was paid by either money order or cash and that she collected the rents from Vasquez for the period December 2007 through October 2008. She subsequently testified later in the trial that Vasquez was a good tenant but occasionally late with the rent. She also testified that Defendant Sinatra Montgomery had been incarcerated two or three weeks after Vasquez commenced her tenancy. This testimony was credible.

Defendant Sinatra Montgomery on rebuttal testified that he was the owner of the Premises but had no direct contact with Vasquez between December 2007 and October 2008. He confirmed that he restricted some visitation to Vasquez’s apartment as he was concerned with activity occurring in the apartment but he did not elaborate in his testimony. He also indicated that Vasquez sometimes made late rent payments and he would charge her a late fee from time to time. The Court found his testimony credible.[7]

Testimony and Evidence as to Plaintiff’s Count III (Security Deposit) and Defendant’s Property Damage Counterclaim

Mr. Montgomery testified that he received a security deposit from Ms. Vasquez in the total amount of $1, 225.00 consisting of receipt #730054 dated December 3, 2007 for $1,100.00 and receipt #730057 dated February 2, 2008 for $125.00. Plaintiff’s Exhibit #3. He indicated that $1,100.00 of the security deposit was deposited with the Crescent Credit Union on December 5, 2007 in an escrow account as shown in a passbook. Plaintiff’s Exhibit #4. According to Mr. Montgomery, the remaining security deposit of $125.00 was never deposited as the passbook had been misplaced. He stated that Vasquez vacated the Premises on October 7, 2009. He further testified that on October 4, 2009, he deducted $449.51 from the security deposit for rent. He subsequently deducted the remaining $775.49 from the security deposit on November 7, 2009 for damages to the Premises which he has described below and as indicated on Plaintiff’s Exhibit #10. He said he did not pay Vasquez any interest on the $1,225.00 security deposit but he did indicate that the interest amount was shown in the passbook.

The Court finds the Defendant’s testimony credible on a portion of his testimony. The Court also finds him credible as to: a) the date and receipt of the two security deposit amounts; b) the date that the Plaintiff vacated the Premises; c) his failure to pay interest on the security deposit; and, d) the amounts he deducted from the security deposit for alleged rental arrearages, other charges and damages.

The Court notes and finds that, according to the Crescent Credit Union passbook, there was a deposit of $125.00 on October 6, 2008[8]. The Court further notes and finds that interest accrued in the passbook on the initial security deposit amount of $1,100.00 for the period December 5, 2007 through September 30, 2008 in the total amount of $4.07. For the period October 1, 2008 through October 8, 2009 on the full amount of $1,225.00, the Court finds that interest accrued in the amount of $3.78. Finally, the Court notes and finds that on December 8, 2009, the amount of $1,233.26 was withdrawn from the Crescent Credit Union account. Plaintiff’s Exhibit #4.

Vonda Montgomery, the Defendant’s wife, testified that she advised Vasquez that she would deposit the $125.00 security deposit amount in the bank. However, she testified, the passbook had been mis-placed and the $125.00 was never deposited. The Court found Vonda Montgomery’s testimony credible as to her conversation with Vasquez. The Court also finds that the $125.00 representing the remaining portion of the security deposit had, in fact, been deposited in the Crescent Credit Union passbook on October 6, 2008.

Celia Vasquez testified that she received a copy from Montgomery of the Crescent Credit Union passbook with the initial $1,100.00 deposit but was not sure when she received it. At the time she vacated the Premises, she also requested the return of her security deposit which she never received from the Defendant. After she vacated, she received an Exit Inspection dated November 7, 2009 from the Defendant. Plaintiff’s #10.

The Court finds that this document sent by the Defendant contained a claim for seven (7) days rent in October 2009 in the amount of $293.51 along with additional fees of $156.00 for a total of $449.51. Page one of Plaintiff’s Exhibit #10 indicates that the Defendant also charged an unexplained fee of $76.00, a late fee of $30.00 and an undefined $50.00 amount owed to Montgomery. Further the Court finds that the Defendant incorporated an additional damage claim of $1,959.18 and demanded payment from Plaintiff Vasquez in the amount of $1,183.69 after deduction of the remaining security deposit of $775.69.

Defendant Montgomery continued his testimony by stating that on October 9, 2009, he inspected the Plaintiff’s apartment for damages.[9] He testified that the ceiling fans had been removed, leaving a hole. He indicated that a wall plate had been removed and that a replacement door had a hole. He also indicated that a steel door had to be replaced and he did not have an estimate of the cost at that time. He indicated that there were cigarette burns on the carpet and the carpet had to be replaced though he attempted to remove the stains. One smoke detector was damaged and one was missing. He indicated that four (4) doors had to be replaced along with seven (7) window shades.

He also indicated in his testimony that the exterior front bannister had knife damage along with other damage to the outside stair. There was also graffiti on the rear and the front of the house. He described the amounts required to repair these alleged damages as more fully described in his Exit Inspection dated 11/7/09. Defendant’s Exhibit E. He also testified that he took photos of the damage but they did not “come out”and were not presented to the Court.

He testified that he saw the Plaintiff’s son hit the bannister with a machete and that he saw the Plaintiff’s boyfriend hit the porch with a hammer. He also stated that other witnesses were lying regarding work that he had approved in the Premises done by the Plaintiff or her friends or children. The Court did not find this testimony credible.

Plaintiff Vasquez testified on direct following Defendant Montgomery that the cigarette burns on the rugs were there when she commenced her tenancy and that the rug was not new. On cross-examination, she said that there were stains on the rug when she moved in and that the Premises was dirty. She testified that she had requested that Montgomery replace the carpet a number of times but he did not do so. She also denied that anyone smoked in the apartment as her son had asthma. She stated that the laundry area was in the same condition as when she moved in and that there was no damage. She also denied seeing anyone spray painting the exterior of the Building. She also said that Montgomery was satisfied with the work that she and/or her family and friends had completed and that Montgomery said that he would give her back her security deposit. The Court found her testimony credible.

 

Plaintiff’s Count I – Breach of Leasing Agreement

 

The Court finds that the parties entered into a document entitled “Tenant Lease” which was marked as Plaintiff’s Exhibit #5 and a duplicate copy as Defendant’s Exhibit C. The Court has found that the initial Contract Rent due the Defendant was $1,225.00 a month of which the Plaintiff was to pay $196.00 with the remaining amount of $1,029.00 paid by the Brockton Housing Authority. The Court has also found that the Contract Rent under the Lease increased to $1,300.00 a month with a corresponding increase paid by the Brockton Housing Authority to the Defendant of $1,104.00. The Plaintiff’s portion of $196.00 remained the same. From a review of Defendant’s accounting through his receipts, the Court will infer that the Defendant assumed that the Plaintiff’s rent was due on the first of the month rather than on or before the 14th day of the month as indicated in the Lease.

The Court finds that the Defendant received all payments due him from the Brockton Housing Authority in the total amount of $23,388.00 for the period December 2007 through September 1, 2009 and that there was no overpayment from the Brockton Housing Authority. The Court further finds that for the period December 2007 through the termination of the tenancy on October 7, 2009, the Plaintiff was obligated under the terms of the Lease to pay the Defendant rent for a total of 22 months and 7 days for a total amount of $4,611.18. calculated as follows: $196.00/month x 22 (December 2007 through September 2009) = $4,312.00 + $42.74/day[10] x 7 (October 1, 2009 through October 7, 2009) = $299.18, for a total of $4,611.18.

The Court has found that the Plaintiff paid her portion of the rent to the Defendant in the amount of $4,172.00 for the period December 1, 2007 through August 2, 2009. The Court finds that the Plaintiff paid an additional $222.00 to the Defendant for late charges. The Plaintiff did not introduce any supporting documentation to support her claim that she paid more than these two amounts. The testimony of Rafael Ortiz and Tami Quinones did not support any additional payments directly to the Defendant that they may have given the Plaintiff.

The Court, therefore, finds for the Defendant as to the Plaintiff’s claim of overpayment of rent as a breach of the Lease[11].

Count II – Fraud

 

The Plaintiff alleges that the Defendant misrepresented the amounts of rents due from her because of her limited understanding of English and demanded amounts in excess of the agreed upon amount of her portion of the rent coupled with demanding a late fee not incorporated into the Lease. An action for fraudulent misrepresentation (or deceit) lies when the defendant makes a false representation of a material fact with knowledge of its falsity for the purpose of inducing the plaintiff to act thereon, and the plaintiff, relying upon the representation as true, acts upon it to his detriment. Danca v. Taunton Savings Bank, 385 Mass. at 8 (1982). The deception need not be direct; it is enough that the defendant made a statement from which the plaintiff could reasonably infer some action was taken, if the defendant was aware that the action had not, in fact, been taken. See id. The burden is on the plaintiff to prove each element of the claim. See id.

Damages for fraudulent misrepresentation are governed by the benefit of the bargain rule. See id. A plaintiff who successfully proves fraudulent misrepresentation is entitled to the difference between the value of the item as represented and the actual value of the item at the time of the misrepresentation. See id.

The Court finds no fraud on the part of the Defendant as to the alleged overpayment of rent.[12]

The Court has found that the Defendant imposed an oral late fee in the amount of $30.00 which was not specified within the Lease. The Defendant required and charged the Plaintiff this late fee and the Court finds that such action by the Defendant constituted fraud upon the Plaintiff. The Plaintiff’s portion of the rent, according to the Lease, was due on or before the 14th of each month. The Court finds that the Defendant collected late fees of $222.00 over the course of the Plaintiff’s tenancy notwithstanding that the Lease has no provision for the amount of any late charge. Accordingly, the Plaintiff is due $222.00 in damages from the Defendant for the late fee overcharge.

The Court finds for the Plaintiff in her claim against the Defendant for fraud and awards damages in the amount of $222.00.

Plaintiff’s Count III – Violation of M.G.L. c. 186, s.15B and

Defendant’s Counterclaim for Property Damages

As the Plaintiff’s claim related to the handling of her security deposit by the Defendant and the Defendant’s counterclaim as to property damage to the Premises involve the same set of facts and issues, the Court will treat these two matters together.

The Plaintiff alleges that the Defendant violated M.G.L. c. 186, s.15B for failing to: a) advise her of the location of her security deposit; b) provide a statement of present condition at the commencement of the tenancy; c) pay annual interest; d) hold the security deposit in an interest-bearing account in a Massachusetts bank; and e) return the security deposit within thirty days of the date the Plaintiff vacated the Premises.

M.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.”.

M.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…”

M.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.”

M.G.L. c. 186, s.15B(3)(b) provides, in pertinent part: “A lessor of residential real property who holds a security deposit pursuant to this section for a period of one year or longer from the commencement of the term of the tenancy shall, beginning with the first day of the tenancy, pay interest at the rate of five per cent per year, or other such lesser amount of interest as has been received from the bank where the deposit has been held, payable to the tenant at the end of each year of the tenancy…At the end of each year of a tenancy, such lessor shall give or send to the tenant from whom a security deposit has been received a statement which shall indicate the name and address of the bank in which the security deposit has been placed, the amount of the deposit, the account number, and the amount of interest payable by such lessor to the tenant. The lessor shall at the same time give or send to each such tenant the interest which is due or shall include with the statement required by this clause a notification that the tenant may deduct the interest from the tenant’s next rental payment. If, after thirty days from the end of each year of the tenancy, the tenant has not received such notice or payment, the tenant may deduct from his next rent payment the interest due.”

M.G.L. c. 186 s.15B(4) provides in pertinent part that the lessor “shall, within thirty days after the termination of occupancy under a tenancy at will or the end of the tenancy as specified in a validly written lease agreement, return to the tenant the security deposit or any balance thereof; provided, however, that the lessor may deduct from such security deposit for the following: (i) any unpaid rent which has not been validly withheld or deducted…and (iii) a reasonable amount necessary to repair any damage caused to the dwelling unit by the tenant or any person under the tenant’s control or on the premises with the tenant’s consent, reasonable wear and tear excepted. In the case of such damage, the lessor shall provide to the tenant within such thirty days an itemized list of damages, sworn to by the lessor or his agent under pains and penalties of perjury, itemizing in precise detail the nature of the damage and of the repairs necessary to correct such damage, and written evidence, such as estimates, bills, invoices or receipts, indicating the actual or estimated costs thereof. “.

M.G.L. c. 186, s.15B(6) provides that the landlord forfeits his right to retain the security deposit for any reason or, in any action by a tenant to recover a security deposit, to counterclaim for any damage to the premises if he “(a) fails to deposit such funds in an account as required by subsection (3); (b) fails to furnish to the tenant within thirty days after the termination of the occupancy the itemized list of damages, if any, in compliance with the provisions of this section; …(e) fails to return to the tenant the security deposit or balance thereof to which the tenant is entitled after deducting therefrom any sums in in accordance with the provisions of this section, together with any interest thereon, within thirty days after the termination of the tenancy.” emphasis added

Finally, as set forth in M.G.L. c. 186, s.15B(7), the statute 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 became due, together with court costs and reasonable attorney’s fees.”

The Court finds from a review of the documentation and the Defendant’s testimony, the Defendant provided the Plaintiff with a receipt for $1,100.00 of the security deposit at the commencement of the tenancy and a receipt for $125.00 at the time the Plaintiff paid the remaining security deposit, and that these actions were in compliance with M.G.L. c. 186, s.15B(2)(b). Plaintiff’s Exhibit #3.

However, the Court finds that the Defendant failed to submit evidence that he provided the Plaintiff with a Statement of Conditions as required by M.G.L. c. 186, s.15B(2)(c).[13] The Court finds from the documentation in the passbook that the Defendant failed to deposit the second security deposit in the amount of $125.00 received on February 2, 2008 until October 6, 2008, thereby failing to comply with M.G.L. c. 186, s.15B(3)(a) which requires that such deposit be made within thirty (30) days of receipt by the lessor. The Court finds that the Defendant failed to pay any interest to the Defendant on the security deposit annually or at all. Specifically, the annual interest payment was due from the Defendant to the Plaintiff at the end of the first year of tenancy (December 2, 2008) as required by M.G.L. c. 186, s.15B(3)(b). The passbook interest accrued from December 12, 2007 through October 8, 2009. Plaintiff’s Exhibit #4.

The Court finds that the Defendant failed to return the security deposit within thirty (30) days after the termination of the tenancy on October 7, 2009 and, with respect to the alleged property damage, that he failed to send appropriate documentation to the Plaintiff signed under the pains and penalties of perjury as to his reasons for retaining the security deposit. The violation by the Defendant of M.G.L. c. 186, s.15B(4), however, is moot as the Defendant must return the security deposit as described below.

Pursuant to M.G.L. c. 186, s.15B(7), the Court finds that the Plaintiff is entitled to treble damages due to the Defendant’s violation of M.G.L. c. 186, s.15B(6)(a) and (e), by failing to correctly and timely place the security in a bank account, and return the same upon demand. She is further entitled to interest on the security deposit, attorney’s fees and costs. Taylor v. Burke, 69 Mass.App.Ct. 77 (2007); Castenholz v. Caira , 21 Mass.App.Ct. 758 (1986). The amount of damages due the Plaintiff are calculated as follows: $3,675.00 ($1,225.00 trebled) plus interest calculated at five (5%) per cent for the period December 3, 2007 through January 17, 2013 calculated in two separate amounts. For the period December 3, 2007 through February 1, 2008, the amount of interest is $9.15 calculated based upon the initial security deposit of $1,100.00[14]. For the period February 2, 2008, when the Defendant received the second security deposit amount of $125.00, to January 17, 2013, the amount of interest is $308.04[15]. The total due the Plaintiff from the Defendant inclusive of the trebled security deposit of $3,675.00 and interest of $317.19 is $3,992.19.

The Court finds that the Plaintiff is further entitled to reasonable attorney’s fees and costs, pursuant to M.G.L. c. 186, s.15B(7). Within ten (10) days after the date that judgment enters, the Plaintiffs shall file with this Court and mark for hearing a Motion for Counsel Fees, Costs and Expenses in accordance with the procedure prescribed in Yorke Mgmt. v. Castro, 406 Mass. 17, 20 (1989). After hearing, the Court shall award reasonable attorney’s fees and costs, nunc pro tunc, to the date of this decision.

The Defendant has counterclaimed against the Plaintiff for property damage to the Premises. M.G.L. c. 186, s.15B(6) specifically states “The lessor shall forfeit his right to retain any portion of the security deposit for any reason, or, in any action by a tenant to recover a security deposit, to counterclaim for any damages to the Premises”, as further provided in said s.15B(6). The Court has found that the Defendant failed to timely deposit the Plaintiff’s security deposit or return the security deposit upon demand by the Plaintiff as required by M.G.L. c. 186,s.15B(3). The Defendant is accordingly barred in this action from bringing a counterclaim for any alleged damages to the Premises. The Court therefore Dismisses without prejudice the Defendant’s counterclaim as to alleged property damage caused by the Plaintiff in either the apartment or the exterior of the building.

 

Plaintiff’s Count IV – M.G.L. c. 93A

 

The Plaintiff has alleged that the Defendant’s actions or failure to act violated M.G.L. c. 93A. by: a) demanding rent in excess of the amount stipulated within the Lease as same may have been increased by the Brockton Housing Authority; and, b) violation of the Massachusetts Security Deposit statute.

The Plaintiff has alleged that the Defendants have violated certain provisions of M.G.L. c. 93A and the regulations of the Attorney General’s Office related thereto. M.G.L. c. 93A(2)(a) states that “Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” Subsection (2)(c) states that “The attorney general may make rules and regulations interpreting the provisions of subsection 2(a) of this chapter…” M.G.L. c. 93A “is not available where the transaction is strictly private in nature, and is in no way undertaken in the ordinary course of trade or business.” Lantner v. Carson, 374 Mass. 606, 612 (1978); Billings v. Wilson, 397 Mass. 614. (1986).

Defendant Montgomery testified that he owns and has resided in the three-unit Building at 15 East Main Street since July of 2001. There was no testimony that he owns any additional residential properties that are used for investment or otherwise. The Court finds that for the purposes of this Decision the Defendant is not engaged in trade or commerce with respect to the rental of the Premises to the Plaintiff and is therefore not subject to M.G.L. c. 93A.

 

Defendant’s Remaining Counterclaims

 

The Defendant’s remaining counterclaims involve unpaid rent, failure to return keys and lease violations due to unauthorized persons.

The Court has already found in favor of the Defendant in Count I of this Decision that the Defendant did not overpay rental amounts. The Court does find that the Plaintiff owes the Defendant for unpaid rent for a portion of her tenancy. The Court now awards the Defendant the amount of $439.18[16] on his counterclaim for rental amounts due from the Plaintiff for the period August 2, 2009 through October 7, 2009.

The Court finds, based upon the testimony of the Plaintiff and Rosario Marino that the keys to the Premises were, in fact, returned to the Defendant. There was no credible testimony presented by the Defendant as to the presence of unauthorized persons in the Plaintiff’s apartment in violation of the Lease nor did the Defendant present any damages related to this counterclaim.

The Court finds for the Plaintiff on the Defendant’s remaining counterclaims.

 

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 Defendant on the Plaintiff’s claim of overpayment of rent.

 

2. Judgment enter for the Plaintiff against the Defendant in the amount of $222.00 for fraud for charging and accepting payment of late charges not specified in the Lease.

 

3. Judgment enter for the Plaintiff against the Defendant pursuant to M.G.L. c. 186, s.15B(7) in the amount of $ $3,992.19 plus attorney’s fees and costs, nunc pro tunc to the date of Judgment. Within ten (10) days after the date that judgment enters, the Plaintiffs shall file with this Court and mark for hearing a Motion for Counsel Fees, Costs and Expenses in accordance with the procedure prescribed in Yorke Mgmt. v. Castro, 406 Mass. 17, 20 (1989). After hearing, the Court shall award reasonable attorney’s fees and costs, nunc pro tunc, to the date of this decision.

 

4. Judgment enter for the Defendant on Plaintiff’s M.G.L. c. 93A claim.

 

5. Defendant’s counterclaim for property damage is Dismissed without prejudice pursuant to M.G.L. c. 186, s.15B(6).

 

6. Judgment enter for the Defendant on his counterclaim for unpaid rent in the amount of $439.18.

 

7. Judgment enter for the Plaintiff on the Defendant’s remaining counterclaims.

 

8. The foregoing Order for Judgment paragraphs 1 through 7 result in a net judgment for the Plaintiff in the amount of $3,775.01, plus costs and prospective attorney’s fees pursuant to paragraph 3 of the Court’s Order for Judgment.

 

9. Execution to issue thirty (30) days from the date that judgment enters.

 

/s/ WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

January 17, 2013

 

————————-

[1]The Court notes that the lease instrument between the parties required the Plaintiff to pay her portion of the rent on the 14th day of each month. Plaintiff’s Exhibit #5, Contract Rent Provision.

 

[2]The Court has marked all the receipt exhibits collectively as Plaintiff’s Exhibit #2 and has referred to the specific date of payments by either the Brockton Housing Authority or the Plaintiff through the receipt numbers and dates. Also included in Plaintiff’s Exhibit #2 is the Defendant’s actual receipt book.

 

[3]Represented by receipts # 730055, 730056, 730059, 730061, 730062, 730069, 730071, 730073, 730075, 730078, 730080, and 730081. Note that receipt #730055 for December 2007appears to be a joint receipt for the full contract rent amount of $1,225.00.

 

[4]Represented by receipts #730084, 730086, 730089, 730090, 730091,730092,730094,730095 and 930098. .Also note that receipts for Contract Rent for the period March 1, 2009 through September 2009 were joint receipts.

 

[5]Payments attributed directly to the Plaintiff were indicated by #730058, 730060, 730065 730066, 730067 730068, 730070, 730072, 730074, 730076, 730077, 730079, 730081, 730082,730083,730085, 730087, 730088. The Defendant combined receipts for payments from the Plaintiff and the Brockton Housing Authority for receipts 730055, 730090 through 730098 – except for 730096.

 

[6]The Court will infer that Vasquez does not write in English.

 

[7]Montgomery also testified as to alleged damages caused by the Plaintiff which the Court has incorporated into a later section of this decision related to the Plaintiff’s security deposit claims.

 

[8]This amount as noted was deposited approximately 8 months after the Plaintiff delivered the $125.00 to the Defendant. Plaintiff’s Exhibits #3 and #4.

 

[9]The following testimony is included as to the reason the Defendant gave to justify his failure to return the Plaintiff’s security deposit.

 

[10]The per diem rental amount is calculated as follows: $1,300.00 x 12 = $15,600.00 ? 365 = $42..74.

 

[11]See also Defendant’s counterclaim for non-payment of rent discussed in this Decision.

 

[12]The Court acknowledges that the Defendant’s accounting practice for crediting payments from the Brockton Housing Authority and the Plaintiff left much to be desired in depicting a clear payment and accounting of monies.

 

[13]The Defendant offered into evidence a blank and unsigned Apartment Condition Statement which was marked for identification only as Defendant’s Exhibit D.

 

[14]$1,100.00 x 5% = $55.00 ? 365 days = $.15/day x 61 days = $9.15.

 

[15]$1,225.00 x 5% = $61.25 ? 365 days = $.17/day x 1,812 days = $308.04.

 

[16]This amount is calculated as follows: $4,611.18 (rent due) – $4,172.00 (rent paid) = $439.18.

 

 

 

 

 
Docket No.:Docket No. 13-SP-00057

Parties:Clifton Verdieu and Soimise Verdieu PLAINTIFFS v. Angel Smith Defendant

Judge:/s/ WILBUR P. EDWARDS, JR., ASSOCIATE JUSTICE

Date:August 22, 2013

SOUTHEASTERN DIVISION

FINDINGS OF FACT, RULINGS OF LAW, AND ORDER FOR JUDGMENT

 

This summary process action was brought by the Plaintiffs, Clifton Verdieu and Soimise Verdieu[1] (“Plaintiffs” or “ Clifton Verdieu” or “Soimise Verdieu” respectively) against the Defendant, Angel Smith (“Defendant” or “Angel Smith” ) for possession and damages for unpaid rent in the amount o $4,600.00. The Plaintiff was represented by counsel. The Defendant filed an Answer and counterclaims seeking damages of $5,400.00 based on allegations that the Plaintiffs breached the implied warranty of habitability, the warranty of quiet enjoyment and inflicted emotional distress. The Court conducted the trial on March 12, 2013. At the end of the trial, the paries entered into an Agreement that the Defendant would vacate the Premises on March 18, 2013. Possession is therefore moot.

Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds as follows:

The parties stipulated and the Court finds that the Plaintiffs are the owners of a single-family house located at 101 Southfield Drive in Brockton, MA (the “Premises”) and the Defendant has resided there pursuant to a Lease which commenced on September 1, 2012 and expired on August 1, 2013 (the “Lease”). Plaintiff’s Exhibit 1 The monthly contract rent under the Lease is $1,700.00, due on or before the first of each month.

The Plaintiffs served the Defendant with a 14-Day Notice to Quit on December 5, 2012 with a demand for rent in the amount of $4,600.00. Plaintiff’s Exhibit 2. The Plaintiffs served the Defendant with a Summons and Complaint on December 26, 2012, with an Account Annexed in the amount of $4,600.00 as follows: October 2012-$1200.00; November 2012 – $1700.00; December 2012-$1700.00. At trial, the Plaintiff moved and the Court allowed a Motion to Amend Account Annexed to add rent for the three months of January, February and March, 2013 at the rate of $1700.00 a month for a total of $9,700.00 less a credit of $1,700.00 for payment by the Defendant of the last month’s rent pursuant to the terms of the Lease.

Plaintiff Soimise Verdieu testified that no rent had been received from the Defendant through and including March 2013. She further testified that the parties had agreed to a one month rent reduction of $500.00 for Otober 2012. This testimony was credible

The Defendant failed to present testimony challenging non-payment of rent for the period of October 2012 through the date of trial on March 12, 2013. She confirmed the October 2012 rent reduction granted by the Plaintiffs and noted that she had lost her employment that month. The Court found the testimony credible.

The Court finds that the Plaintiffs have proven their prima facie case for damages against the Defendant for unpaid rent in the amount of $9,006.02 less the last month’s rent of $1,700.00 for a net amount of $7,306.02, plus costs, calculated as follows: October 2012-$1,200.00; November 2012 -$1,700.00; December 2012 -$1,700; January 2013 – $1,700.00; February 2013 – $1,700.00; March 2013 – $1,006.02[2] less $1,700.00 (last month’s rent).

The Defendant presented her counterclaims.

 

THE DEFENDANT’S COUNTERCLAIMS

 

M.G.L. c. 239, §8A ¶1 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.”

 

Testimony and Evidence as to All Counterclaims

 

Defendant Smith testified that she made an initial contact with the Plaintiffs on October 5, 2012 by telephone conversation regarding a broken door that had fallen on her son and caused injury to his hands and feet. She went on to testify that sometime in mid-October 2012 the front screen door fell on her and she suffered injury to her hands and feet. She also testified that on January 8, 2013, the bathroom shower door fell on her. As a result of the January 8, 2013 incident, she went to the hospital. Exhibit G

She contacted the City of Brockton Board of Health (“Board of Health”) concerning conditions in the Premises. As a result of that contact, Sanitary Inspector for the Board of Health, Marc Zeoli, conducted an inspection of the Premises on October 19, 2012. Following the inspection, Inspector Zeoli issued Violation #920649 to the Plaintiffs (signed under the pains and penalties of perjury) on October 22, 2012 (hereafter the “October 22, 2012 Violation Notice”). Defendant’s Exhibit B. In his October 22, 2012 Violation Notice, Sanitary Inspector Zeoli identified the following violations and required completion of repairs by November 9, 2012:

 

“Front door:

410.551Repair/replace screen door

.500Repair properly/replace damaged front door

 

Living room:

.501(A)Repair/replace front windows not weather tight/open/close properly

.351Repair/replace all loose poorly fitting/damaged electrical outlets and switch plates

.500Repair/replace damaged carpet

.351Repair/replace all recessed lighting

 

Hallway:

410.500Repair/replace loose grill cover in ceiling

.351Repair/replace damaged light switch plate/fixture

 

Rear bedroom 1:

410.501(A)Repair/replace windows not weather tight/open/close properly

 

Rear bedroom 2:

410.501(A)Repair/replace windows not weather tight/open/close properly

 

Hallway bedroom:

410.351Repair/replace loose/damage light switch

.351Repair/replace loose/ damaged wall sockets

.500Repair/replace closet and entry door to close/open properly

.501(A)Repair/replace windows not weather tight/open/close properly

.500Repair/replace unfinished entry door area

.500Repair/replace all damaged floor tiles

.500Remove all staples from tile floor

 

Kitchen:

410.500Repair/replace all cabinet doors not properly installed

.500Repair/replace sink countertop not properly attached or caulked to wall

.500Repair/replace all missing kick plate/cove base under all cabinets

.500Repair all damaged walls

.351Repair leaking pipe near washing machine

.351Repair/replace electrical issue in kitchen microwave and dishwasher causes outages when on proper electrician must inspect and repair the issue

.500Repair or replace stove

 

Dining room:

410.501(A)Repair/replace windows not weather tight/open/close properly

 

Master bedroom

410.500Repair /replace any issue with loose or improperly installed floor

.482Room needs carbon monoxide alarm within 10 ft

.482Room needs smoke detector

 

Rear deck

410.500Repair/replace loose railing

 

Heat/hot water room

410.500Repair/replace damaged door

.500Clean room

.550(B)Exterminator to inspect and treat evidence of animals

 

*Professional exterminator and electrician must be used for these issues all Paperwork must be forwarded to this office.” Defendant’s Exhibit C (emphasis in original)

 

Defendant Smith stated that she withheld rent due to these conditions. Further, she stated that she and her family members were not currently residing at the Premises on a day to day basis but were living at other places. The Court found this testimony credible.

She continued her testimony stating that she had been hospitalized on January 11, 2013 and upon her return home that day, she was locked out of her house at the main exterior door. She was able to reenter the house around 10:00 P.M. She did not see the Plaintiffs either trying to enter the Premises or changing the lock. The Court found this testimony credible.

There was no evidence presented by either party as to specific dates any of the conditions identified in the October 22, 2012 Violation Notice were actually repaired by the Plaintiffs. Plaintiff Soimise Verdieu testified that she and her husband inspected the Premises on November 2, 2012 after contacting Smith by phone and confirming the date by e-mail. Smith allowed them access for inspection. Soimise Verdieu then attempted to return to complete repairs on a date that was confirmed with Smith by phone and e-mail but Smith denied access to the Premises on the date requested. Subsequently, Smith allowed the Plaintiffs and their electrician access to the Premise on November 11, 2012. The electrician repaired or replaced the following: fire alarm, carbon monoxide alarm, thermostat, and light switches[3]. The next visit for repairs according to the Plaintiffs was on December 29, 2012 for installation of windows. According to the testimony of Soimise Verdieu, the appointment was originally scheduled for December 27, 2012 and then rescheduled at Smith’s request for December 29, 2012. Smith was not initially present when the Plaintiffs and their workmen arrived and Smith subsequently asked the Plaintiffs to depart when she did arrive. It was not clear from the testimony whether all the windows throughout the Premises were repaired on or about December 29, 2012. The Court found this testimony by Soimise Verdieu credible.

Soimise Verdieu also entered into evidence “before” and “after” photos of some of the conditions in the Premises. However, there was no independent confirmation of compliance with the October 12, 2012 Violation Notice.

Soimise Verdieu acknowledge that on January 11, 2013, she received a note from the Belmont Police Department (where she and her husband live) advising the Plaintiffs that Smith had been locked out of the Premises. She stated that she had not received the note or any other communication from the Defendant until late in the evening of the 11th. Upon receipt, she and her husband drove to Brockton and repaired the lock. The Court found this testimony credible.

 

Breach of the Implied Warranty of Habitability and the Warranty of Quiet Enjoyment

 

The Defendant alleges that the conditions in the Premises breached the implied warranty of habitability and the warranty of quiet enjoyment. The implied warranty of habitability is the landlord’s promise that the premises will meet certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the tenant is in material violation of the minimum standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). A landlord must have actual or constructive notice of the condition creating the violation. McKenna v. Begin, 3 Mass.App.Ct. 168 (1975). Damages are assessed from the date the landlord had notice of the condition of disrepair. Berman & Sons v. Jefferson, 379 Mass. 196 (1979). The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises as warranted and the fair rental value of the premises with the defects. McKenna v. Begin, supra at 172.

M.G.L. c. 186, §14 provides, in pertinent part: “Any lessor or any 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 months’ rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee…” A landlord violates M.G.L. c. 186, §14 where he had notice, or reason to know of the serious condition in the tenant’s apartment, and failed to take appropriate corrective measures. Al Ziab v. Mourgis, 424 Mass. 847, 850-851 (1997); Cruz Management Co., Inc. v. Thomas, 417 Mass. 782 (1994).

Not every breach of the implied warranty of habitability constitutes a violation of M.G.L. c. 186, §14. While the statute does not require that the landlord’s conduct be intentional, Simon v. Solomon, 385 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. 273, 284-285 (1994); Lowery v. Robinson, 13 Mass.App.Ct. 982 (1982).

As the Defendant’s claims for breach of the implied warranty of habitability and breach of the covenant of quiet enjoyment arise from the same set of facts, the Court will review these issues together.

The Court finds that the Defendant has sustained her burden of proof as to her counterclaim of breach of the implied warranty of habitability, as she presented credible evidence including documentation from the City of Brockton Board of Health in support of the conditions in the Premises from early October 2012 through March 2013. These conditions included items as described in Defendant’s Exhibit C which were either limited to one room or included the entire Premises including: damaged doors throughout the house; loose and non weather-tight windows throughout the house; damage to light switches, outlets and other major electrical conditions throughout the house; damaged carpeting; missing smoke and carbon monoxide detectors; damage to floors, plumbing and a loose railing; and, possible animal pests requiring the services of an exterminator[4]. The Court finds that the first notification to the Plaintiffs of these conditions was by the Defendant on October 5, 2012 followed by a violation notice generated by the City of Brockton Board of Health on October 22, 2012. As noted herein, there were no specific dates, other than November 11, 2013 for the electric repair, of any repairs of the conditions in the Premises. There was no testimony as to the date the remainder of repairs were completed by the Plaintiffs.

As the Plaintiffs have breached the implied warranty of habitability, the Court finds that the Defendant is entitled to a total rent abatement in the amount of $4,656.09. This amount is computed as follows: sixty per cent (60%), for the period October 5, 2012 to November 11, 2012 – $55.89/day[5] x 60% = $33.53day x 38 days[6] = $1,274.14; plus fifty per cent (50%) for the period November 12, 2012 to March 12, 2012 – $55.89/day x 50% =$27.95 x 121 days[7] = $3,381.95.

The Court further finds that the Plaintiff is entitled to a finding in her favor on her breach of the covenant of quiet enjoyment claim. While the Plaintiffs timely corrected the electrical conditions in the Premises, the testimony presented indicated to the Court that the remaining conditions remained unrepaired through the date of trial on March 12, 2013. Accordingly, the Court finds that the Defendant has sustained her burden that the Plaintiffs’ conduct in failing to timely repair the damaged doors throughout the house, the loose and non weather-tight windows, the damaged carpeting, missing smoke and carbon monoxide detectors, damage to floors, plumbing and a loose railing, and exterminating for animal pests was a breach of the covenant of quiet enjoyment. Accordingly, the Court pursuant to M.G.L. c. 186, §14 must award damages in the amount of $5,100.00 representing three (3) times the monthly rent of $1,700.00.

The Court finds no breach of quiet enjoyment by the Plaintiffs related to the January 11, 2013 “lock-out” situation based upon the testimony at trial.

A litigant is not entitled to duplicate recoveries on separate legal theories for the same factual wrongs and injuries. A party who prevails on more than one cause of action is entitled to recover upon whichever legal theory yields the greater award. Darmetko v. Boston Housing Authority, 378 Mass. 758, 762 (1979); Leardi v. Brown, 394 Mass. 151, 157 (1985). The Plaintiffs’ violations of M.G.L. c. 186, §14 and for the breach of the implied warranty of habitability arise from the same facts and involve the same damages. The Court will award damages to the Defendant under the breach of the covenant of quiet enjoyment as those damages provide the greater recovery to the Defendant.

Intentional and/or Negligent Infliction of Emotional Distress

The Defendant has alleged that the Plaintiffs intentionally or negligently inflicted emotional distress upon her by committing acts that were intended to intimidate and cause them emotional harm. A party alleging intentional or reckless infliction of emotional distress 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, 371 Mass. 140, 145 (1976).

The elements of a claim for negligent infliction of emotional distress are as follows: “(1) negligence; (2) emotional distress; (3) causation; (4) physical harm manifested by objective symptomatology; and (5) that a reasonable person would have suffered emotional distress under the circumstances of the case.” Payton v Abbott Labs, 386 Mass.540, 557 (1982).

The Court finds that the Defendant failed to present any testimony, affidavits, pleadings, or documentation supporting her counterclaim(s) that the Plaintiffs either intentionally or negligently caused emotional distress to her pursuant to the tests as set forth in Agis and Payton, Id. Accordingly, the Court finds that the Defendant has not met her burden of proof as to a claim of intentional or negligent infliction of emotional distress against the Plaintiffs. The Court shall therefore find in favor of the Plaintiffs on the Defendant’ intentional and negligent infliction of emotional distress counterclaim.

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 damages for unpaid rent in the amount of $7,306.02, plus costs in the amount of $177.70, a total of $7,483.72.

2.Judgment enter for the Defendant on her counterclaim for breach of the implied warranty of habitability but no duplicative damages are awarded.

3.Judgment enter for the Defendant against for the Plaintiff for breach of the covenant of quiet enjoyment in the amount of $5,100.00 representing the monthly rent of $1,700.00 trebled.

4.Judgment enter for the Plaintiffs on the Defendant’s counterclaim for intentional or negligent infliction of emotional distress.

5.The foregoing order for judgment paragraphs 1-4result in a net award of damages to the Plaintiffs in the amount of $2,383.72.

6.Execution to issue ten (10) days after the date that judgment enters.

 

/s/ WILBUR P. EDWARDS, JR., ASSOCIATE JUSTICE

August 22, 2013

 

cc:Alicia A. McNeil, Esq.

Angel Smith

 

—————————

 

[1]The Court notes a scrivener’s error in the spelling of the Plaintiffs’ last name. The correct spelling is “Verdieu”. The Clerk’s Office is requested to make the appropriate change in the docketing.

 

[2]The Defendant vacated the Premises on March 18, 2013 by Agreement of the parties. $1,700.00 x 12 months ? 365 day = $55.89/day x 18 days = $1,006.02

[3]The Court will infer that these repairs were completed on November 11, 2012.

 

[4]The Court was unclear as to the definition of the unclean heat/hot water room identified in Defendant’s Exhibit C . Accordingly, no damages are awarded as to this condition.

 

[5]The per diem rental rate is calculated as follows: $1,700.00/month x 12 = $20,400.00 ? 365 = $55.89/day.

 

[6]The period October 5, 2012 through November 11, 2012 is 38 days.

 

[7]The period November 12, 2012 through March 12, 2012 is 121 days.

 

 

 

 
Docket No.:Docket No. 10-CV-00659 : CONSOLIDATED CASE Docket No. 11-SP-01187

Parties:Erica Jones PLAINTIFF v. Hanover Woods by and through its managing agent, Harbor Management Company DEFENDANT : Hanover Woods by and through its managing agent, Harbor Management Company PLAINTIFF v. Erica Jones DEFENDANT

Judge:/s/ WILBUR P. EDWARDS, JR., ASSOCIATE JUSTICE

Date:January 11, 2013

SOUTHEASTERN DIVISION

FINDINGS OF FACT, RULINGS OF LAW, AND ORDER FOR JUDGMENT

These consolidated actions involve the occupancy of an apartment unit located in a residential development known as Hanover Woods in Hanover, Massachusetts.[1] Erica Jones {“Jones” or “Plaintiff”) is a tenant at Unit #4-404, 65 Frank’s Lane in the Hanover Woods development (the “Premises”). The gravamen of these consolidated cases revolves around conditions in the Premises related to water infiltration from an adjacent apartment unit, allegations of mold and rodent infestation, water infiltration, failure to promptly make repairs and a M.G.L. c. 93A claim (consumer protection). The Plaintiff further has alleged a breach of contract claim regarding rent abatement. Hanover Woods seeks rent that Jones has withheld based upon her allegations.

 

Brief Procedural History

 

Hanover Woods, on November 19, 2010, sought injunctive relief in the form of a temporary injunction before Chaplin, F.J., against Jones in #10-CV-00614, Hanover Woods v. Erica Jones. Hanover Woods’ request sought permission from the Court to enter the Premises to inspect and take photos. Chaplin, F.J. on November 22, 2010 granted Hanover Woods’ request to enter the Premises for purposes of inspection and to only take photos. No further action has occurred in #10-CV-00614. The Court takes judicial notice of this action.

Ms. Jones filed #10-CV-00659 on December 14, 2010 against Hanover Woods alleging breach of the implied warranty of habitability, quiet enjoyment and violation of M.G.L. c. 93A. She also sought injunctive relief from the Court related to claims of water infiltration, rodent infestation and failure by Hanover Woods to promptly make repairs. Hearings on Jones’ prayers for injunctive relief against Hanover Woods were heard and decided by Chaplin, F.J. on December 22, 2010. As a result of Chaplin F.J.’s findings and orders of December 22, 2010, Hanover Woods commenced repairs to a wall in Plaintiff Jones’ master bedroom along with related surroundings in the Premises and completed same in early January 2011, as more fully described in this Decision.

Hanover Woods brought the summary process action #11-SP-01187 on March 28, 2011 against Jones after completion of repairs to the Premises on or about January 4, 2011. Hanover Woods sought possession alleging that Jones failed to pay rent. Jones filed a timely Answer and Counterclaims, alleging the same claims as in her civil suit and further adding counts for retaliation and breach of contract against Hanover Woods. The parties conducted extensive discovery and pre-trial proceedings on these consolidated matters.

The Court on motion consolidated #10-CV-00659 and #11-SP-01187. Hanover Woods’ request for possession was dismissed without prejudice due to its failure to serve the Boston Housing Authority as the entity providing rental subsidy payments for Jones’ apartment. Its rental claim was treated as a counterclaim under the civil action. The parties tried the case before Edwards, J. on December 20, 2011 and January 9-10, 2012. Both parties were represented by counsel, waived their respective jury trial requests, and filed Requested Rulings of Law and Findings of Fact following trial.

Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds as follows:

 

EVIDENTIARY FINDINGS FOR ALL CLAIMS[2]

 

Erica Jones testified that she moved into the Premises sometime in April of 2008. Joint Exhibit #1 (HAP Contract – Section 8 Tenant-Based Assistance). She further confirmed that she receives a rental subsidy through the Boston Housing Authority’s Section 8 program and that her current portion of the monthly rent is $756.00.[3] At the time she moved into the Premises, she stated she saw black, wet and smelly stains on window sills in the living room, kitchen and bathroom. She testified she reported this to Hanover Woods’ employee Lisa Daly at the time her tenancy commenced. As a result of the report, a maintenance person treated the stain but the stain persisted and returned to the same location. According to her testimony, this reporting and repair cycle occurred in excess of six times and remained an issue as of the date of trial.

She went on to describe problems with the closet doors in the master bedroom that came loose and a sliding door that came off its track. She testified that these also continued as an issue through the date of trial. She also testified to problems with the dishwasher, a refrigerator and ceiling stains. There was a specific problem with the dishwasher on Thanksgiving of 2008 which she reported to the Plaintiff. Hanover Woods repaired the dishwasher with the assistance of a plumber and electrician. She confirmed that on most of the repairs, the Plaintiff’s maintenance personnel responded almost immediately and made the necessary repairs. However, she testified that the dishwasher was not currently working.

Jones testified that sometime in June 2008 the refrigerator was not working and leaked water onto the floor. She testified that she promptly reported the problem and the maintenance personnel repaired it. Jones testified that the refrigerator continues to be a problem with a cycle of complaints and repairs by management but no long term repair. She identified Work Orders for certain repairs completed by the Defendant but she was unsure and could not confirm the dates indicated on those Orders. Joint Exhibits #27, 29, 32, 34. The Court found this testimony credible.

She continued her testimony by describing a stain on the living room ceiling at the end of the summer of 2009 that was cold to the touch. Joint Exhibit #38. A Hanover Woods maintenance person came to the Premises but only painted over the stain. The stain returned approximately a month later at which time she called the Hanover Wood’s office and the ceiling was again repainted. She testified that this cycle occurred another six or more times.

She went on to identify the Occupancy Agreement (the “Occupancy Agreement”) dated October 23, 2009. Joint Exhibit #3. She stated that on page 18 she had notified Hanover Woods that there was a problem with a kitchen dishwasher, kitchen floor coming up and mold in the living room and master bedroom. She further indicated that she returned the signed Occupancy Agreement including page 18 to Lisa Daly, Hanover’s employee, and that she told Ms. Daly of odors in the Premises. The Court found this testimony credible.

In January of 2010, the Boston Housing Authority (“BHA”) inspected the Premises. At that time, she says she pointed out the problems with the Premises to that inspector including the stain on the ceiling in the living room, the odors, the closet door problems and stains or substances on the windowsills in the living room and master bedroom. She also testified that the BHA Inspector moved the bed in the master bedroom approximately two feet from the wall and found a stain behind the bed area. She took photos of the master bedroom area, the living room ceiling and one of the bathrooms on January 20, 2010, which she identified for the Court. Exhibits #82-90.

Sometime after January 20, 2010, Lisa Daly came to the Premises to view the conditions shown in Joint Exhibits #82-90. A Hanover Woods maintenance person did some work at that time including bleaching the wall behind the bed in the master bedroom along with work on the living room ceiling but she wasn’t sure whether he also painted the wall behind the bed. She further testified that she never denied access to the Premises at that time and that only Lisa Daly and a maintenance person named Alan came to the Premises regarding the issues she described. The Court found this testimony credible.

On or about October 11, 2010, she notified the Town of Hanover Building Inspector and Health Department Agent of the conditions described above regarding the bedroom wall and living room ceiling. As a result of her request, the Hanover Board of Health Agent inspected the Premises. She said that he noted the stain on the living room ceiling. She said the Health Agent returned and reinspected in December 2010. She identified photos she took in November and December 2010 of walls in the master bedroom including a hole cut in the wall showing sheet rock, mouse droppings and evidence of water leaks. Joint Exhibits #91-99. The Court found this testimony credible.

Jones identified Joint Exhibit #3, the Occupancy Agreement, and described Section G(2) of the exhibit.[4] She indicated that sometime in January 2010 and again sometime in October or November 2010 she requested a rent abatement from Hanover Woods due to the conditions in the Premises. She spoke with Lisa Daly concerning the stains on the wall in the master bedroom. She offered to split the cost of a replacement bedroom set 50/50 with Hanover Woods but she testified she never received a response to her request. The Court found this testimony credible except for the portion related to a lack of response from a representative of Hanover Woods.

Jones testified that she first saw a letter dated November 17, 2010 from Plaintiff’s counsel on December 16, 2010 as to a request to inspect the Premises for mold. Exhibit #73. She indicated that she did not receive a copy of any inspection reports from a company called Able Inspection. She confirmed that after December 2010 the Plaintiff repaired the wall in the master bedroom including removing rodent nesting materials, vacuuming the area within the wall, and replacing carpeting. She identified photos of the master bedroom wall after completion of the repair work and photos of the exterior of the Premises. Exhibits #100, 101, 103 and 104 .[5]

On cross-examination, Jones testified that on March 28, 2008 she had signed a Mold and Mildew Addendum as Attachment “A” to the Occupancy Agreement. She acknowledged that the Addendum required that the tenant report any mold and mildew issues to Hanover Woods. She went on to view various Work Orders for the period June 2008 through November 2008. Exhibits #24, 26, 27, 29, 30, 31, 33, 36, 37, 38, 40 and 42.

She identified a photo of the wall behind the master bedroom’s bed frame. Exhibit #86. She related that she was not aware of the stain on the wall behind the bed until the BHA inspector moved the bed on January 29, 2010. Exhibit #120. She also stated that the BHA inspector identified a problem with a toilet seat in a January 2010 inspection. As a result of the BHA inspection, Jones confirmed that Hanover Woods inspected and bleached the master bedroom wall and then put “KILZ” paint along with a second coating of paint on the wall. The BHA returned later in March 2010 and the Premises passed inspection. Exhibit #68. The Court found this testimony credible.

She does not remember receiving Exhibits #13-15 ( Notices to Quit) related to non-payment of her rent but she did receive Exhibit #16.[6] The Court did not find this testimony credible as to lack of receipt of Exhibits #13-15.

In October 2010, she received a request from Hanover Woods to open the wall in the master bedroom wall but she refused access to the Premises.[7] As set forth in an Affidavit of Lisa Daly dated November 16, 2010 in #10-CV-00614, Hanover Woods v. Erica Jones, a written request was made of Jones on that date to allow access to the Premises for inspection. Jones testified that on or about November 18, 2010, she didn’t know whether Hanover Woods was attempting to gain access to the Premises but she did know that her counsel would not allow Hanover Woods to repair the conditions. She also said that following Hanover Wood’s entry and repair work in December 2010 and January 2011, she did not have an opportunity to obtain or test any of the materials removed from either the wall or behind the wall. She also stated that she did not request that any portion of the removed wall materials be retained by Hanover Woods.

On December 22, 2010, Hanover Woods’ maintenance person put plastic sheeting on her bed and on the carpet near the bedroom wall and then cut open the wall. She said she requested an additional hole be cut and that was the first time that she saw a water-stained board within the interior of the wall. She confirmed seeing mouse droppings. Exhibits #96, #98 and #99. She said that Hanover Woods through its maintenance person commenced repair, vacuumed the interior wall space and also removed and replaced the damaged lumber. The Board of Health’s Agent, she testified, gave approval on December 22, 2010 to commence the repair. On January 4, 2011, the wall area had been completely boarded up and repainted. She stated that an exterminator did not come to the Premises. The Court found Ms. Jones’ testimony credible except as related to an inspection or treatment by an exterminator after December 22, 2010.

On December 14, 2010, Jones testified that there was a problem with a bi-fold door and the dishwasher. She indicated that she did not receive a note from the Plaintiff regarding scheduling of the repair but that the maintenance person named Alan came out and repaired the items in a few days. She reconfirms in her testimony that there was a stinky smell in the bathrooms and there continued to be stains on the window sills and on the living room ceiling.

She testified that the BHA conducted another inspection of the Premises on June 8, 2011 and issued a report on June 11, 2011. Exhibit #124. On June 14, 2011, Hanover Woods contacted her to begin repairs identified by this BHA report which included problems with the kitchen floor and a closet door. She did not recognize a letter regarding these issues sent to her by Hanover Woods and did not remember when Hanover Woods completed the repairs.

On August 12, 2011, the BHA Inspector returned and approved the repair of the kitchen floor and closet doors. She also stated that the BHA Inspector noted a problem with the ceiling near the bathroom shower in one of the bathrooms. She did not receive a note from Hanover Woods regarding its efforts to make a repair though she knows the Plaintiff completed the repair on or about August 15, 2011. She indicated in her testimony that on September 16, 2011 the BHA passed the unit.

She testified that she never sent Hanover Woods a notice that she was withholding the rent due to conditions in the Premises but that her counsel sent a letter on her behalf. Exhibit #70, 93A Demand Letter dated December 2, 2010. She testified that her bed is still located in the master bedroom but the bedding was thrown out in January of 2011 and not replaced. The Court found the testimony credible.

Thorny Paul Ferdinand testified that he is an Inspector for the Boston Housing Authority. He has worked for the BHA for 13 years and as an inspector for 9 or 10 years. He identified Exhibits #118 through #126 as records from the Boston Housing Authority. He testified that he was in the Premises a number of times though he had some difficulty at times gaining access from Jones. On or about December 28, 2010, he was in the Premises and described a 4 foot by 8 foot opening in the master bedroom wall that he indicated was a work in progress. Exhibit #123. No one from Hanover Woods was with him for this inspection but the work related to the hole in the wall was completed at his next inspection. The December 28, 2010 visit was not an annual inspection and he has had no requests from Jones except for copies of records produced for the trial. He saw no stains on the ceiling, walls or windowsills nor was there any odor in the unit.

He remembers speaking to Jones on June 8, 2011 and that he also spoke with a Hanover Woods maintenance person though he doesn’t remember much about the conversation. He confirms that on June 8, 2011 the kitchen flooring was a tripping hazard but that it, along with a closet door, was repaired on June 9, 2011. He also stated that Jones did not point out any other items to him during the June 8, 2011 inspection. He found no stains in the living room ceiling nor any problems in the bathroom. Exhibit #124. He found no other violations at that time. Exhibit #125.

On August 12, 2011 during an inspection, he noted that the ceiling and walls in the bathroom had a black substance that required cleaning and repainting and that he indicated same on the inspection for that date. Exhibit #126. He did not speak to anyone at Hanover Woods following that inspection and the report was otherwise processed through Boston Housing Authority. On September 16, 2011, he again inspected the bathroom and found that all items had been corrected. He testified that he did not know if there had been any other violations for the period September 16, 2011 through the date of trial. He says that Jones never pointed out any other violations to him. He was credible in his testimony.

Anthony Marino testified as the Director of Community Service, Building Commissioner and Health Agent for the Town of Hanover. He has been the Building Commissioner since June of 2008 and the Board of Health Agent since September of 2008. He has been a licensed builder for 15 years and obtained a Bachelor’s Degree from Bridgewater University.

As Health Agent, he is responsible for the enforcement of the State Sanitary Code. He has been inside the Premises. He identified Exhibit #128 dated November 18, 2010 as to an inspection he conducted on November 17, 2010. He was present with Jones at the Premises on that date and saw some evidence of dampness behind a wall in the master bedroom but it was not wet or mushy. He saw the black stain on the cove base at the bottom of the wall. He did not remember any odor in the Premises at that time. As a result of his inspection, he sent a letter dated November 18, 2010 to Hanover Woods concerning the dampness and suggesting that Hanover Woods open a small section of the wall to determine the possible cause of the dampness. Exhibit #128. He received a response dated December 7, 2010 from Hanover Woods’ counsel on December 10, 2010 as to Hanover Woods’ efforts to open the wall for an inspection. Exhibit #129.

Marino conducted another inspection on December 21, 2010 and remembered being in the Premises’ master bedroom with other people. Exhibit #130. One of the Hanover Woods’ maintenance personnel opened one of the walls and Marino identified chronic dampness and evidence of rodent nesting. He did not require any special precautions related to the repair work and he did not note any discoloration prior to the opening of the wall. He viewed photos and confirms that they represent the interior of the wall along with a view of the bathtub of the adjacent apartment unit. Exhibits #93-99. He states that there was evidence of chronic water damage inside the wall along with leaves, dust and rodent nesting material. The floor between the walls was dry. There was evidence of an old leak. As a result of this inspection, he sent a follow- up letter to Hanover Woods dated December 22, 2010 regarding the December 21, 2010 inspection and required correction of the rodent problem within 24 hours. Exhibit #131. At no time did he test any of the substances nor did he do a moisture reading of any materials. He also stated that he is not a mold expert. He also had not received any complaints of mice in the Premises.

He conducted another inspection of the work in the master bedroom on January 4, 2011 and confirmed that some repair work had been completed by Hanover Woods but that additional work was required. He also received a report from a plumber dated December 21, 2010 concerning inspection for a water leak in Unit #407, the adjacent apartment’s bathroom. Exhibit #80. Later on January 4, 2011 he advised Hanover Woods that it could close up the wall opening, apply the cove base on the wall and repair the carpeting and drywall. Exhibit #132. His final inspection report of January 28, 2011 indicated that all repair work was completed. Exhibit #133. He has not done any additional inspection nor has he received any other calls from Jones concerning Sanitary Code violations. The Court found this testimony credible.

The next witness to testify was Alan Ferrera, a maintenance person for Hanover Woods. Mr. Ferrera testified that he started work at the Hanover Woods development in June of 2008. His responsibilities include maintaining the grounds, fixing things and unlocking doors for outside contractors. He identified various Work Order exhibits and confirmed to the best of his memory that he did the repair work indicated. Exhibits #25, 26, 28, 31, 32, 35, 38-41, 43 and 45-47, 51-64. He also reviewed the Work Log at Exhibit #21 and indicated that Hanover Woods’ tenants would request repairs through the Work Log and that he put his initials in the Work Log when the work was completed.

He further testified that he has no memory of Jones telling him about any problems other than those indicated on the various Work Orders. He remembers touching the area of ceiling in the living room but he did not remember any wetness. As to the ceiling discoloration in the bathroom, he testified that it could be attributed to the Plaintiff not using a fan in the room. He reviewed the photos of the master bedroom that incorporated the opening of the wall at Exhibits #135 (A-J). He confirmed that the areas inside of the wall were not wet but did have dust and debris. He said that after the inspection by all the parties present he began his repair work to clean up the debris and such and to reinstall the opening in the wall. Exhibits #136 (A-K).

 

The Court found Mr. Ferrera’s testimony credible.

 

Lisa Daly testified that she is the Property Manager and Compliance Manger for Hanover Woods and has been at the development for a period for 6 years. She identified Exhibit #1 and stated that Jones’ rent as of this document was $379.00 a month including heat and hot water and that Jones had paid a security deposit of $379.00 at the commencement of the tenancy.

She testified as to items related to the conditions in the Premises. She has been to the Premises a few times since December 2010. She states that she does not remember any requests from Jones regarding the alleged dampness on the living room ceiling She said that Alan Ferrera reported that the ceiling had mis-matched paint and she instructed Mr. Ferrera to repaint the ceiling in the living room.

On cross-examination, she stated that the Hanover Woods development was built in 1989 and consisted of 6 buildings with 12 apartments in each Building. She indicated that Work Orders were created for a repair record and that a Log Book for tenants was implemented in January of 2010. Joint Exhibit #21 and #21A. She testified that the October 2009 Occupancy Agreement was required by HUD (Department of Housing and Urban Development) and was hand-delivered to all of the tenants in Hanover Woods. She acknowledged that Jones had noted on pages 17 and 18 of the Occupancy Agreement that the master bedroom and living room had mold. She also noted that management had not signed the form, though she had signed the Mold/Mildew Addendum along with the Lead Paint and Violence Against Women addendums.

She reviewed and identified the Work Orders related to the repairs at the adjacent apartment (Unit #407 occupied by one Burke) and that the tub liner in the Burke apartment was installed in response to a reasonable accommodation request by Mr. Burke. A plumber also installed a new shower valve in Burke’s apartment. There was no report of a leak from Burke’s bathtub and the wall behind Burke’s shower was not checked for leaks.[8]

She said that prior to the BHA inspection on January 28, 2010, Jones had not advised her of either the date of that inspection or the alleged condition. When she observed the master bedroom she noted discoloration of the legs on the bed. She says that Jones did not request a rental abatement but asked for full payment for a new bedroom set, then offered to split the cost with Hanover Woods for a new bed at 50/50. She indicated that the maintenance staff also cleaned the bed frame. See Joint Exhibits #43,# 45 and # 46 for repair work January 29, 2010 through February 8, 2010.

In September 2010 there was no evidence of mold according to Daly’s testimony. After the wall in the master bedroom was opened in December 2010, Hanover Woods immediately commenced repairs. She noted that discoloration of the living room ceiling was due to paint and not from a plumbing leak. She was aware of rodents behind Jones’ wall following the December wall opening and put in place monthly extermination as needed. There was no direct request by Jones for extermination. She also identified Exhibit #137 as the Extermination Report by Waltham Chemical as to treatment at the Premises on December 23, 2010. Following the extermination, there were no further reports of mice in the Premises according to her testimony.

After all the repair work to the Premises was completed in January 2011, Hanover Woods through their counsel sent Jones a letter requesting commencement of rent payments. Joint Exhibit #138. Jones made her last rental payment according to Daly’s testimony on September 7, 2010. Exhibit #81. Daly testified that the total amount of rent Jones owed as of the date of trial is $11,140.00. The Court found the testimony credible.

Kevin Joseph Cyr testified as Keeper of the Records of Able Plumbing Company. He identified various bills submitted to Hanover Woods for the period September 30, 2008 through October 2009 related to Apartment #407 located adjacent to the Premises. Exhibits #113-#117.

Keith Triaudfilos testified that he is a bathtub liner installer and has worked for Maztec Bath Systems Corp. for a period of six (6) years. He is familiar with the records of the company. He stated that on July 20, 2009 he measured and on August 19, 2009 he installed a new bathtub liner in the apartment unit adjacent to the Premises, Unit #407. This installation was at the request of Hanover Woods. On October 20, 2009, he responded to a service call but he did not remember specifically what he did that day. In total, he was in Apartment #407 three times. Exhibits #114 and #115. The Court found his testimony credible.

 

PLAINTIFF ERICA JONES’ CLAIMS

 

Breach of the Implied Warranty of Habitability and Breach of Quiet Enjoyment

 

Plaintiff Jones alleges that the Defendant Hanover Woods breached the implied warranty of habitability during the tenancy by failing to maintain the Premises in a habitable condition due to the presence of mold, water infiltration and disrepair of various items. She further maintains that Hanover Woods breached the warranty of quiet enjoyment by failing to promptly make repairs to conditions in the Premise following notice. As the evidence presented by the parties incorporate both claims, the Court will treat the two issues together.

The implied warranty of habitability is the landlord’s promise that the premises will meet certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the tenant is in material violation of the minimum standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). A landlord must have actual or constructive notice of the condition creating the violation. McKenna v. Begin, 3 Mass.App.Ct. 168 (1975). Damages are assessed from the date the landlord had notice of the condition of disrepair. Berman & Sons v. Jefferson, 379 Mass. 196 (1979). The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises as warranted and the fair rental value of the premises with the defects. McKenna v. Begin, supra at 172.

In pertinent part, M.G.L. c. 186, s.14 provides: “Any lessor or any 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 months’ rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee…”. A landlord violates M.G.L. c. 186, s.14 where he had notice, or reason to know of the serious condition in the tenant’s apartment, and failed to take appropriate corrective measures. Al Ziab v. Mourgis, 424 Mass. 847, 850-851 (1997); Cruz Management Co., Inc. v. Thomas, 417 Mass. 782 (1994).

Not every breach of the implied warranty of habitability constitutes a violation of M.G.L. c. 186, s.14. While the statute does not require that the landlord’s conduct be intentional, Simon v. Solomon, 385 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. 273, 284-285 (1994); Lowery v. Robinson, 13 Mass.App.Ct. 982 (1982).

The evidence presented by the parties was highly disputed as to the nature and time frame of matters related to mold and water intrusion, repair of fixtures and other items. Additionally, there was conflicting testimony as to notice to Hanover Woods of conditions from either Plaintiff Jones, the Boston Housing Authority or the Town of Hanover Board of Health. The Court, after extensive review of the testimony and the exhibits presented into evidence by the parties, determines that Hanover Woods has breached the implied warranty of habitability but has not breached the warranty of quiet enjoyment, all as noted below.

For the period January 29, 2010 through February 11, 2010, there were problems identified by Hanover Woods and the Boston Housing Authority involving a broken closet door along with stain or substances on the windowsills in the living room and master bedroom. Joint Exhibit #121. These matters were remedied by Hanover Woods on or before February 11, 2010. Joint Exhibit #43. The Court finds that the Plaintiff is entitled to the following rent abatement: for the 14 day period between January 29, 2010 and February 11, 2010, twenty (20%) per cent, calculated as follows: $24.85/day[9] x 20% = $4.97 x 14 = $69.58.

For the period November 17, 2010 through January 28, 2011, representing the period of time between the Town of Hanover Board of Health identification and notification of the area in the master bedroom as a possible location of water intrusion and dampness and the date when repairs were completed to the wall, the Court finds that the Plaintiff is entitled to the following rent abatement: for the 73 day period between November 17, 2010 and January 28, 2011, ninety (90%) per cent, calculated as follows: $24.85/day x 90% = $22.37 x 73 = $1,633.01.

The Court finds that Plaintiff Erica Jones did not sustain her burden as to her claim that Hanover Woods breached the warranty of quiet enjoyment. For the majority of the conditions to which she requested repairs from Hanover Woods from the commencement of her tenancy through the date of trial, the repairs were timely made as testified to credibly by both Erica Jones and the Hanover Woods maintenance personnel. This finding is also supported by the lengthy documentary trail evidenced by the numerous Work Orders for her Premises.

The Court also considered the lapse of time for the repair to the bedroom wall in its analysis of the quiet enjoyment claim. As noted previously in this decision, Hanover Woods was delayed by Jones’ request for certain precautions prior to commencement of repairs between November 17, 2010 and December 22, 2010. The Court granted permission for the inspection in #10-CV-00614, Hanover Woods v. Erica Jones and the repairs were allowed by the Court on December 22, 2010. The Board of Health did not require any special precautions for the bedroom wall repair as testified by Anthony Marino, the Board of Health Agent. Hanover Woods opened the wall, commenced repairs, vacuumed and repaired the wall, all in a timely manner.

 

Breach of Contract Claim

 

Ms. Jones has alleged that Hanover Woods breached the Occupancy Agreement, Section G(2) by failing to grant her “a rent abatement in proportion to the amount of harm or inconvenience…” she suffered until the repairs were completed.[10] Joint Exhibit #3.

There was testimony that the parties (Erica Jones and Lisa Daly, Hanover Woods’ agent) discussed a possible rent abatement or damage claim settlement at various times in the early and latter parts of 2010 as to damage to Jones’ personal property. There was no evidence presented at trial that Jones presented a written request to Hanover Woods for a rent abatement to which Hanover Woods would have been obliged to respond under the Agreement.[11] Assuming for argument purposes that Jones’ discussions with Lisa Daly as to replacement of her bedroom set was a request for a rent abatement under Section G(2) of the Occupancy Agreement, Jones failed to sustain her burden of proof at trial as to the actual damages to her personal property, including the bedroom set and any other items. The Court will therefore find for the Defendant Hanover Woods as to Erica Jones’ Breach of Contract claim.

Retaliation Claim

 

Erica Jones alleges that Hanover Woods terminated her tenancy due to exercise of rights in violation of M.G.L. c. 239, s.2A. M.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 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.” “Clear and convincing”evidence means evidence 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).

Hanover Woods’ claim for possession in these consolidated actions was dismissed on procedural grounds prior to trial. As Hanover Woods only seeks unpaid rent by its counterclaim, Jones’ retaliation claim pursuant to M.G.L. c. 239, s.2A is DISMISSED as moot.

 

M.G.L. c. 93A Claim

 

The Plaintiff Erica Jones has claimed that Defendant Hanover Woods actions in failing to promptly repair conditions in her Premises constituted unfair and deceptive practices.

The Defendant has alleged that the Plaintiff has violated certain provisions of M.G.L. c. 93A and the regulations of the Attorney General’s Office related thereto. M.G.L. c. 93A(2)(a) states that “Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” Subsection (2)(c) states that “The attorney general may make rules and regulations interpreting the provisions of subsection 2(a) of this chapter…”

Pursuant to the Attorney General’s Consumer Protection Regulations codified at 940 CMR 3.17(1): “It shall be an unfair or deceptive practice for an owner to:…(b) fail, during the terms of the tenancy, after notice is provided in accordance with M.G.L. c. 111, s.127L, to…(1) remedy a violation of law in a dwelling unit which may endanger or materially impair the health, safety, or well-being of the occupant, or…(2) maintain the dwelling unit in a condition fit for human habitation…[or] (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.”

In any action commenced under M.G.L. c. 93A, if the Court finds for the petitioner, “recovery shall be in the amount of actual damages or twenty-five dollars, whichever is greater, or up to three but not less than two times such amount if the court finds that the use or employment of the act or practice was a willful or knowing violation of said section two or that the refusal to grant relief upon demand was made in bad faith with knowledge or reason to know that the act or practice complained of violated said section two.” M.G.L. c. 93A s.9(3). Further, “[I]f the Court finds in any action commenced hereunder that there has been a violation of section two, the petitioner shall, in addition to other relief provided for by this section and irrespective of the amount in controversy, be awarded reasonable attorney’s fees and costs incurred in connection with said action.” M.G.L. c. 93A s.9(4).

The Court finds that the Plaintiff Hanover Woods is in the business of owning and/or managing a residential apartment complex in Hanover, Massachusetts consisting of 72 apartment units and is therefore subject to M.G.L. c. 93A. See testimony of Lisa Daly.

On December 8, 2010 by letter dated December 2, 2010, Hanover Woods received a letter from Erica Jones’ counsel Marjorie A. Adams entitled “DEMAND LETTER PURSUANT TO G.L. c. 93A THE CONSUMER PROTECTION ACT”. Exhibit #70. In the letter, Ms. Adams sets forth allegations of various conditions allegedly reported by Jones to Hanover Woods summarized as follows:

 

1.October 23, 2009: Conditions with kitchen including dishwasher and floor coming up; Master bedroom: mold; Living room: mold.

 

2.January 29, 2010: Mold growth on sheetrock hidden by Jones’ bed in master bedroom. (Note: allegations of additional notice by Jones to Hanover Woods regarding mold issues also contained in letter).[12]

The letter continues as to allegations that Hanover Woods refused to test the Premises for lead or to conduct any additional testing for water, mildew, chronic moisture.

 

3.November 17, 2010 – Inspection by Hanover Board of Health Agent

 

4.On November 18, 2010, notice from Hanover Board of Health Agent to correct signs of chronic dampness pursuant to 105 CMR 410.500.

 

5.Discussion that Jones’ initially refused to permit removal of section of wall without taking precautions to protect Jones’ health

 

6.Allegation that black wet growing substance was in fact mold.

 

7.Letter sought demand and relief for:

a)reimbursement to Jones for cost of preliminary mold testing;

b)determination of the source of any moisture or water and appropriate repair;

c)removal of all porous materials including carpeting and sheetrock

d)reimbursement for replacement of contaminated personal property including nightstand, mattress, pillows, sheet and other bedding at an estimated cost of $3,200.00. Joint Exhibit #70, Letter from Marjorie A Adams, Esq. to Defendant.

 

The letter concludes with notice of rent withholding pursuant to M.G.L. c. 239, s.8A.

Hanover Woods responded to Jones’ counsel’s letter by letter of January 7, 2011 denying the allegations in Jones’ counsel’s letter and making no offer of settlement. See Joint Exhibit #71, Letter from Jeffrey C. Turk, Esq. To Marjorie Adams, Esq.

Plaintiff Jones and Defendant Hanover Woods’ maintenance person Alan Ferrera testified at length that upon notification by Jones of necessary repairs to the Premises, even when informally made directly to him, Mr. Ferrera would undertake repairs. Exhibits #25, 26, 31, 32, 35,38-41, 45-47, 51-64. While there was testimony from Jones concerning the presence of a black, wet substance in the Premises during her tenancy (and this substance was also identified by the Boston Housing Authority inspector and the Town of Hanover Health Agent), there was no testimony that this was, in fact, a harmful mold. In each instance where mold was alleged by Jones, Ferrera indicated that he cleaned the area with bleach.

Hanover Woods timely completed repair work consisting of cleaning, painting and using KILZ, all conducted on January 29, 2010 following an inspection conducted by the Boston Housing Authority regarding a stain on Jones’s master bedroom wall, Exhibit #43, 44 and 45, Hanover Woods conducted an inspection of the master bedroom wall in late December 2010 following notification through the Town of Hanover Board of Health (which was concurrent with Hanover’s request for Court intervention in #10-CV-00614, Hanover Woods v. Erica Jones, and injunctive relief sought by Ms. Jones in this action). Exhibits #52, 54, 56-61. Hanover Woods then conducted remedial work in Jones’ master bedroom to remedy what appears to have been some manner of water intrusion from an adjacent apartment unit coupled with the presence of rodents within the wall.

There were substantial allegations and demands made on Hanover Woods by correspondence from counsel and contained within the Complaint related to the alleged presence of mold in the Premises. The Plaintiff failed to provide reliable and/or sufficient evidence as to the presence of harmful mold (which, if proven, would possibly have generated additional liability upon Hanover Woods pursuant to M.G.L. c. 93A). Hanover Woods, in the Court’s determination, responded promptly to the Plaintiff’s request for repairs related to the presence of a black, sticky substance in her bedroom and other portions in a timely matter. There was no evidence of mold or water intrusion in the living room ceiling. Hanover Woods also promptly inspected the interior of the master bedroom wall and commenced repairs upon determination by the Hanover Board of Health that there was a water intrusion issue behind the wall. The Court finds that Hanover Woods did not breach M.G.L. c. 93A(2)(a), or the Attorney General’s Consumer Protection Regulations codified at 940 CMR 3.17(1)(b). Accordingly, the Court will rule in favor of Hanover Woods as to Erica Jones’ M.G.L. c. 93A claim.

 

DEFENDANT/PLAINTIFF IN COUNTERCLAIM HANOVER WOODS RENT CLAIM

 

Hanover Woods has made a counterclaim against Erica Jones for non-payment of rent in the amount of $11,140.00. M.G.L. c. 186, s.5 states as follows: ” Such rent may be recovered in contract, and the deed of demise or other written instrument, if any, showing the provision of the lease, may be used in evidence by either party to prove the amount of rent due from the defendant.”

Hanover Woods claims that Jones has failed to pay rent for the period September 2010 through the final date of trial, January 10, 2012, in the amount of $11,388.50 at the rate of $756.00 a month. Exhibit #81. As indicated in this exhibit and the testimony of both Daly and Jones, Jones failed to make rent payments to Hanover Woods for the period September 1, 2010 through January 10, 2012, except for a payment of $956.00 on March 2, 2011. Jones testified that she personally did not notify Hanover Woods that she was withholding rent until her counsel did so in a December 2, 2010 letter to Hanover Woods. Joint Exhibit #70. There was no testimony that Jones has made any payment of rent since the completion of repairs to her bedroom wall in January 2011. The Court finds that Hanover Woods has sustained its burden of proof to show that Jones failed to pay rent in the amount of $11,388.50 [13] for the period September 2010 through January 10, 2012. The Court grants judgment in the amount of $11,388.50 to Hanover Woods.

 

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 Erica Jones on her claim for breach of the implied warranty of habitability in the amount of $1,702.59.

 

2.Judgment enter for the Defendant Hanover Woods on Plaintiff Erica Jones’ claim for breach of quiet enjoyment.

 

3.Judgment enter for the Defendant Hanover Woods on Plaintiff Erica Jones’ breach of contract claim.

 

4.Judgment enter for the Defendant Hanover Woods on Plaintiff Erica Jones’ M.G.L. c. 93A claim.

 

5.Plaintiff Erica Jones’ retaliation claim pursuant to M.G.L. c. 239, s.2A is DISMISSED as moot.

 

6.Judgment enter for the Defendant Hanover Woods on its claim for unpaid rent in the amount of $11,388.50.

 

7.The foregoing order for judgment paragraphs 1 through 6 result in a net judgment for the Defendant Hanover Woods in the amount of $9,685.91.

 

8.Execution to issue thirty (30) days after the date judgment enters.

 

/s/ WILBUR P. EDWARDS, JR., ASSOCIATE JUSTICE

January 11, 2013

 

cc:Marjorie A. Adams, Esq.

Jeffrey C. Turk, Esq.

 

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[1] Hereafter, the Court will refer to Hanover Woods, by and through its managing agent, Harbor Management Company as the “Defendant” or “Hanover Woods” unless otherwise indicated in the context.

 

[2] As the Court heard some of the testimony of the witnesses out of turn at the request of the parties, the Court has arranged those witnesses’ testimony in an order approximating the claims and defenses of the parties to the action.

 

[3] There was no testimony from either party as to the current contract rent for the Premises.

 

[4] G. MANAGEMENT AGREES …(2) Without limiting the foregoing, Management agrees to repair all defects, as promptly as reasonably possible after receipt of notice from Resident. If Resident believes that he has incurred any material harm or inconvenience as a result of any defect, then Resident shall have a right to petition Management for a rent abatement in proportion to the amount of harm or inconvenience suffered by Resident until the repair is made. Joint Exhibit #3 Section G, Emphasis in original.

 

[5] She also testified that Exhibit #103 is a later view of the area shown in Exhibit #86.

 

[6] Exhibits #13, #14, and #15 are dated 6/9/10, 7/12/10 and 8/13/10 and appear to be (14) day Notices to Quit. Each one seeks rent in the amount of $756.00. Exhibit #16 dated 9/10/10 seeks rent in the amount of $377.00. See also Exhibit #81.

 

[7] The Court will infer that this was an oral request.

 

[8] From the testimony of the various witnesses, the bathroom and shower/tub enclosure for Unit #407 abuts Jones’ master bedroom in Unit #404.

 

[9] The per diem rental amount is calculated as follows: $756.00/month x 12 = $9,072.00 ? 365 = $24.85.

 

[10] This breach of contract claim was made separately by Jones from her breach of the implied warranty of habitability claim. The Court will, accordingly, rule as to this claim as it appeared from the testimony that it entailed reimbursement for damaged personal property.

 

[11] As part of the 93A demand letter, Exhibit #70, Jones, through counsel, made a demand of $3,200.00 for damaged personal property. There was no evidence presented at trial (testimony, documents, receipts, cleaning bills) in support of Jones’ damage allegation.

 

[12] The Court will note that attached to the 93A Demand letter was a so-called Certificate of Mold Analysis from an entity entitled “Pro-Lab” of Weston, Florida. The Certificate of Mold Analysis was NOT permitted into evidence pursuant to decision by Chaplin, F.J. on December 20, 2010.

 

[13] Rent is calculated as follows: (September 2010 through December 2011 – 16 months at $756.00 per month = $12,096.00) + (January 1, 2012 through January 10, 2012 – 10 days at $24.85/day = $248.50) – ($956.00 payment/March 2, 2011) = $11,388.50.