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Housing Court Judge Robert Fields, cases from 2013 to mid-2014

Docket No.:No: 13-CV-893

Parties:LAVAUGHN SMITH, Plaintiff V. ISABELLE HOSTEN, Defendant.

Judge:/s/ Robert Fields

Date:November 18, 2013

WESTERN DIVISION

ORDER

 

This matter came before the court on November 24, 2013 for trial. After consideration of the evidence admitted at trial, at which the plaintiff appeared with counsel and the defendant appeared self-represented, the following findings, rulings, and order for entry of judgment issued on the record and are memorialized herein[1]:

1. Background: The plaintiff, Lavaughn Smith (“tenant”) rents a single family property located at 292 Quincy Street in Springfield, Massachusetts (“premises”). The defendant, Isabelle Hosten (“landlord”), owns the premises. This tenancy began in May, 2009 and the rent is $900 per month. The landlord commenced a summary process eviction (13-SP-4319) which was dismissed on November 7, 2013 due to the insufficiency of the Notice to Quit. The tenant’s

 

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[1] The plaintiff was represented by Student Attorney Kristyn Gebur, 3:03 Certified, under the supervision of Attorney Gordon Shaw, Mass. Justice Project.

 

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counterclaims were severed and transferred to the Civil Docket and scheduled for trial on November 14, 2013.

2. Breach of Quiet Enjoyment: There was not hot water at the premises due to a nonfunctioning hot water tank for approximately 4.5 months. There was also no working heating system for approximately 3.5 months. Both of these conditions have recently been repaired. The tenant and his wife testified credibly about how serious this has effected them. In addition to having to suffer such a protracted period of time without these essential utilities in their home, they explained that they are very active and social in their church and they have not been able to entertain company in their home because of the lack of these services.

3. Landlords are liable for breach of the covenant of quiet enjoyment if the natural and probable consequence of their acts or omissions causes a serious interference with the tenancy or substantially impairs the character and value of the premises. G.L. c. 186, s. 14; Simon v. Solomon, 385 Mass. 91, 102, 431 N.E.2d 556, 565 (1982). Although a showing of malicious intent in not required, “there must be a showing of at least negligent conduct by a landlord.” Al-Ziab v. Mourgis, 424 Mass. 847, 851, 679 N.E.2d 528, 530 (1997). The lack of swift repair to the hot water and heating systems—and the protracted period of time that they lasted without repair—after the landlord was aware, was a clear breach of the tenant’s covenant of quiet enjoyment. For the foregoing reasons, the tenant is awarded damages equaling three months’ rent for his claim of breach of quiet enjoyment, totaling ($900 X 3) $2,700.

4. Warranty of Habitability: Conditions of Disrepair: The subject premises had conditions of disrepair which existed for the entire tenancy and included seventeen items listed on a document entered into evidence. The tenant also had several photographs admitted into

 

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evidence which depicts several of these conditions. The worst of these conditions included a leak from the roof into one of the bedroom and infestation of rodents. These conditions violate the minimum standards of fitness for human habitation as established by Article II of the State Sanitary Code, 105 CMR 410.00 et seq. Although it is well settled law that a landlord is strictly liable for breach of the implied warranty of habitability irrespective of the landlord’s good faith efforts to repair the defective condition [Berman & Sons, Inc., v Jefferson, 379 Mass. 196 (1979)]

5. It is usually impossible to fix damages for breach of the implied warranty with mathematical certainty, and the law does not require absolute certainty, but rather permits the courts to use approximate dollar figures so long as those figures are reasonably grounded in the evidence admitted at trial. Young v. Patukonis, 24 Mass.App.Ct. 907, (1987). The measure of damages for breach of the implied warranty of habitability is the difference between the value of the premises as warranted, and the value in their actual condition. Haddad v Gonzalez, 410 Mass. 855 (1991). I find that the average rent abatement of 5% fairly and adequately compensates the tenant for the diminished rental value of the premises resulting from these conditions. The tenant’s actual damages for the landlord’s breach of the warranty of habitability are $2,385. This represents the contract rent of $900 X 5% for 53 months.

6. The Landlord’s Claim for Rent: By agreement of the parties, the landlord’s claim for rent was adjudicated. I find that the outstanding rent through November, 2013, totals $4,500 and the landlord shall be awarded same.

7. Conclusion and Order: Based on the foregoing, judgment shall enter for the defendant tenant for $585. [This represents the award of $5,085 to the tenant MINUS the award to the landlord for rent, use and occupancy of $4,500]. Thus, to be very clear, the tenant does not

 

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owe the landlord any money for rent, use and occupancy through November, 2013 and the

landlord owes the tenant $585.

 

So entered this 18th day of November, 2013.

 

/s/ Robert Fields

Associate Justice

November 18, 2013

 

 
Docket No.:No: 13-SP-5399

Parties:WILLIAM SALTMAN, Plaintiff V. PAUL KLUIKO and KIM SYPIT, Defendants.

Judge:/s/ Robert Fields

Date:January 30, 2014

WESTERN DIVISION

ORDER
This matter came before the court on January 23, 2014 for trial. After consideration of the evidence admitted at trial, at which both parties appeared with counsel, the following findings, rulings, and judgment shall enter:

1. Background: The plaintiff William Saltman (“landlord”) owns a single family property located at 1410 Main Street in Agawam, Massachusetts (“premises”). The defendants, Paul Kluiko and Kim Sypit (“tenants”), have been residing at the premises since June 1, 2003. The parties stipulate that the monthly rent is $750.

2. Landlord’s Claim for Possession and Rent: The parties stipulate to the elements of the landlord’s case including the notice to quit for nonpayment of rent and the service of the summons. Additionally, the parties stipulate that $1,735 is outstanding for use and occupancy through January 31, 2014. What remains for the court’s adjudication are the tenants’ defenses and counterclaims.

 

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3. Tenant’s Claim for Breach of Quiet Enjoyment: Adjacent to the single family home is a barn. The electricity for said barn is on the same electrical service as is the house and for which the tenants pay the bill. The obligation to pay for the electric service for the barn has not been transferred in any written agreement between the parties.

4. Landlords are liable for breach of covenant of quiet enjoyment if the natural and probable consequences of their actions or omissions causes a serious interference with the tenancy or substantially impairs the character and value of the premises. G.L.c. 186, s. 14; Simon v. Solomon, 385 Mass. 91, 102, 431 N.E.2d 556,564 (1982). Although a showing of malicious intent is not required, “there must be a showing of at least negligent conduct by the landlord.”Al-Ziab v. Mourgis, 424 Mass. 847, 851, 679 N.E.2d 528, 530 (1997). I find and so rule that the landlord’s transfer of the obligation of the electric service to the barn without a written agreement to establish such transfer of utility costs is a per se violation of the tenants’ covenant of quiet enjoyment and hereby award the tenants damages equaling three months’ rent, totaling ($750 X 3) $2,250[1].

5. Warranty of Habitability; conditions of disrepair: The tenants testified about conditions of disrepair, some of which have existed since the beginning of the tenancy. Such conditions include the broken kitchen sink faucet, broken light fixture in the front hall, large hole in the laundry room floor, leaking shower, unsafe basement stairs, improperly sealed chimneys, basement leaks, missing screens, broken or missing stair railings, and peeling paint on ceilings.

 

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[1] The landlord testified that until his January 6, 2014 letter which curtailed summarily the tenants’ use of the barn, both he and the tenants had stored items in the barn. The shared nature of the barn itself would violate G.L. c.186, §14 without a written agreement to make it clear that the tenants were responsible for the electric utility in the barn which housed the landlord’s personal property. Alternatively, the action taken by the landlord in his January 6, 2014 letter also violates G.L. c.186, §14 by summarily and unilaterally removing the tenants’ rights to use of the barn.

 

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6. I find and rule that all of these conditions existed from the inception of the tenancy, so that the tenant does not have the burden of proving notice to the landlord. McKenna v. Begin, 3 Mass.App.Ct. 168, 325 N.E.2d 587 (1975). Those conditions had a predictable and negative effect on the tenant’s use and enjoyment of the premises. These conditions of disrepair constitute violations of the minimum standards of fitness for human habitation as set forth in Article II of the State Sanitary Code, 105 C.M.R. 410.00 et seq. These conditions at the premises constitute a claim based upon breach of the implied warranty of habitability, for which the landlord is strictly liable. Berman & Sons v. Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979). It is usually impossible to fix damages for breach of the implied warranty with mathematical certainty, and the law does not require absolute certainty, but rather permits the courts to use approximate dollar figures so long as those figures are reasonably grounded in the evidence admitted at trial. Young v. Patukonis, 24 Mass.App.Ct. 907, 506 N.E.2d 1164 (1987). The measure of damages for breach of the implied warranty of habitability is the difference between the value of the premises as warranted (up to Code), and the value in their actual condition. Haddad v. Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991).

7. I find that the fair rental value of the premises was reduced by 5%, on average, as a result of these conditions which I find existed from the first day of the tenancy and continued to exist until the date of trial. Because of the statute of limitations, damages may only be awarded for the past six years. Damages, therefore, for breach of the warranty of habitability in the amount of $2,700 will be awarded the tenants, representing 5% of the rent ($37.50) for six years.[2]

 

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[2] The court appreciates that there is a long history between the parties of both a business and personal nature. It is clear to the court that for the past decade, with the tenants employed by the landlord to maintain the apartment building owned by the landlord located directly across the street from the subject premises, the landlords have become somewhat surrogate parents to the tenants; loaning them money and communicating regularly if not daily. One outcome from that

 

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8. Conclusion and Order: For the above reasons, and pursuant to the requirements of G.L.c. 239, s. 8A, judgment shall enter for the tenants for possession and for $3,215. This represents the difference between the award of $4,950 (the tenants’ damages) MINUS $1,735 (landlord’s rent claim through January, 2014).

So entered this 30th day of January, 2014.

 

/s/ Robert Fields

Associate Justice

January 30, 2014

 

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relationship, however, is that the landlord did not properly view the tenancy between the parties for what it was: a tenancy, in which he continued at all times to warranty the condition of the premises.

 

 

 

 

 

 

Docket No.:No: 13-SP-4985

Parties:NHUAN NGUYEN, Plaintiff V. NIURKA N. QUINONES, Defendant

Judge:/s/ Robert Fields

Date:February 13, 2014

WESTERN DIVISION

ORDER

 

This matter came before the court on December 12, 2013 for trial. Both parties appeared self-represented. After consideration of the evidence admitted at trial, the following findings, rulings, and order for entry of judgment shall issue:

1. Background: The plaintiff, Nhuan Nguyen (hereinafter, “landlord”), purchased the two family property located at 173 Commonwealth Avenue in Springfield, Massachusetts in July, 2013 from a family member (his sister). The defendant, Niurka Quinones (hereinafter, “tenant”), was already a tenant residing in Apt. #1 (hereinafter, “the premises”) at the time that the landlord purchased the building under a Section 8 lease. The tenant had moved onto the premises in October, 2012 and the monthly rent at the time that the landlord purchased the property (in July, 2013) was $770; the entire amount being paid by the administrator of the Section 8 program,

 

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HAP.

2. Landlord’s Claim for Possession: The landlord had the tenant served with a “Notice to Terminate Tenancy” dated September 4, 2013. It informed the tenant that the tenancy was being terminated as of October 1, 2013 for no fault of her own but because he needed the premises for his own family. At the time that the landlord purchased the property, the Section 8 lease between the tenant and the former landlord was in full force and effect and the landlord purchased the property subject to that lease—which expired on September 30, 2013. Under the terms of the Section 8 lease, the landlord could not terminate the tenancy within the initial twelve months of the tenancy (through September 30, 2013), other than for cause. No such cause was alleged in the September 4, 2013 notice.

3. To make matters worse, HAP acted upon this insufficient notice and informed the parties that the tenancy was terminated as of September 30, 2013. The landlord provided the court, without objection from the tenant, with the letter from HAP dated September 11, 2013 informing him that based on his service of the September 4, 2013 termination notice, the HAP-administered Section 8 subsidy would be terminated as of September 30, 2013. This was incorrect as a matter of law and the tenancy, nor the accompanying HAP portion (100% of the rent) should have terminated[1].

4. The landlord then served a “14-day notice to quit for non-payment of rent” on November 4, 2013. This notice is for the non-payment of October and November, 2013 rent of

 

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[1] It should be noted here that even if HAP treated the notice as if it was sent to the tenant after the initial term of the lease and based its decision to accept the termination of the tenancy because the landlord asserted that he needed the premises for his family’s use, the notice was less than a rental period or even 30 days (dated September 4, 2013 and effective October 1, 2013) and would be ineffective on that basis, too.

 

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$1,600, presuming $800 per month. This notice seeks a rental amount higher than the contract lease amount ($770) and appears to be based on a “Monthly Rental Agreement” that the landlord drafted and wanted the tenant to sign but she never did. As such, the notice to quit is insufficient to terminate the tenancy, seeking an amount of rent greater than what was arguably outstanding at the time it was delivered to the tenant and the landlord’s claim for possession is DISMISSED.

5. Landlord’s Claim for Use and Occupancy: The landlord’s claim for use and occupancy for October and November, 2013 must fail as well for much of the same reasons as stated above. Because the Section 8 portion of the rent is 100%, and because HAP incorrectly did not pay the landlord for October and November, 2013, the tenant is not responsible for that rent, use and occupancy and the landlord’s claim for use and occupancy is DISMISSED.

6. The Tenant’s Claim for Breach of Quiet Enjoyment; Harassment: Almost every action the landlord has taken since becoming the owner of the property has breached the tenant’s right to quiet enjoyment. I credit the testimony of the tenant and her witness that the first day the landlord introduced himself to the tenant, in July, 2013, he was rude and demanding. Moreover, what he was demanding was a new lease with an increase in rent even though the tenant’s then current Section 8 lease was in full force and effect. When she informed the landlord that she needed to consult with HAP, he gave her three illegal termination notices.

7. Landlords are liable for breach of the covenant of quiet enjoyment if the natural and probable consequence of their acts or omissions causes a serious interference with the tenancy or substantially impairs the character and value of the premises. G.L. c. 186, s. 14; Simon v. Solomon, 385 Mass. 91, 102, 431 N.E.2d 556, 565 (1982). Although a showing of malicious intent in not required, “there must be a showing of at least negligent conduct by a landlord.” Al-

 

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Ziab v. Mourgis, 424 Mass. 847, 851, 679 N.E.2d 528, 530 (1997). I find that the landlord’s actions described above violated the tenant’s covenant of quiet enjoyment and G.L. c.186, §14. For the foregoing reasons, the tenant is awarded damages equaling three months’ rent for this claim of breach of quiet enjoyment, totaling ($770 X 3) $2,310.

8. The tenant’s Additional Claim for Breach of Quiet Enjoyment; Cross-Metering: There are three common area lights at the premises that are connected to the tenant’s electric meter for which she pays the bill. These include an outside light with a sensor, a hallway light with a sensor, and a front porch light that has a switch upstairs under the control of the neighbors and a switch downstairs. Without any written agreement transferring the obligation for these lights to the tenant, this arrangement is in violation of the State Sanitary Code, 105 CMR 410.254 and also violates G.L. c.186, §14. The case law raises the issue of whether more than one recovery may be had under this statute in a single action. Simon v. Solomon, 385 Mass. 91 (1982). Solomon stands for the proposition that statutory damages for the same category of violations may not be awarded even if the violations continue to recur through the tenancy. Where, however, different prongs of the statute are violated by discreet and separate acts of the landlord, it makes no sense to deny recovery for each wrong. To do otherwise would be to encourage multiplicity of litigation, or else excuse clear violations of the law that are subsequent to an original violation. See, Thompson v. Thomas, Hampden Housing Court Case No. 88-SP8133 (Abrashkin, J. 1988). In this case, the violations of G.L. c.186, s.14 fall into two separate and distinct categories—the harassing behaviors described above with repeated illegal termination notices and cross-metering described here. As such, the tenant is entitled to a separate award of $2,310 in accordance with G.L. c.186, §14 on account of the landlord’s failure

 

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to address the cross-metering.

9. Warranty of Habitability: Conditions of Disrepair: The subject premises had conditions of disrepair that were subject of four HAP inspections (July 11 and 25, August 28, and October 2, 2013) and a City of Springfield Department of Code Enforcement, Housing Division inspection dated November 21, 2013. The most serious of these conditions include rodent infestation and sewage backing up through the tub drain. Though the lanndlord was made aware of these conditions from the moment he owned the premises, he did not begin to tend to them until December, 2013. Additionally, the tenant testified and provided up-to-date photographs showing that the plumbing problem persists. These conditions violate the minimum standards of fitness for human habitation as established by Article II of the State Sanitary Code, 105 CMR 410.00 et seq. Although it is well settled law that a landlord is strictly liable for breach of the implied warranty of habitability irrespective of the landlord’s good faith efforts to repair the defective condition [Berman & Sons, Inc., v Jefferson, 379 Mass. 196 (1979)], these conditions all existed when the landlord purchased the property and knowledge of them starting July, 2013 is imputed. Additionally, the landlord received five different inspection reports from HAP and the City.

10. It is usually impossible to fix damages for breach of the implied warranty with mathematical certainty, and the law does not require absolute certainty, but rather permits the courts to use approximate dollar figures so long as those figures are reasonably grounded in the evidence admitted at trial. Young v. Patukonis, 24 Mass.App.Ct. 907, (1987). The measure of damages for breach of the implied warranty of habitability is the difference between the value of the premises as warranted, and the value in their actual condition. Haddad v Gonzalez, 410 Mass.

 

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855 (1991). I find that the average rent abatement of 30% fairly and adequately compensates the tenant for the diminished rental value of the premises resulting from these conditions. The tenant’s actual damages for the landlord’s breach of the warranty of habitability are $1,155. This represents the contract rent of $770 X 30%($231) for 5 months.

11. Security Deposit: The tenant paid the former owner of the property $600 for a security deposit. When the landlord purchased the property, he received the funds (as evidenced in a text exchange (Exhibit 10), and thereafter failed to comply with the security deposit laws at G.L. c.186, §15B. In accordance with G.L. c.186, §15B(5)( c), the landlord was obligated “without regard to the nature of the transfer”, to “assume liability for payment of the security deposit to the tenant in accordance with the provision of this section” or credit the amount to the tenant towards rent. Having failed to comply with this statute, the landlord is liable for the return of the deposit. As such, the tenant shall be awarded $600 plus $30 interest (5%), totaling $630. This amount is not trebled because there was not demand for its return until the Answer was filed on the day of trail. See, Castenholz v Caira, 21 Mass.App.Ct. 758 (1986).

12. Conclusion and Order: Based on the foregoing, judgment shall enter for the defendant tenant for possession and for $6,405.

 

So entered this 13th day of February, 2014.

 

/s/ Robert Fields

Associate Justice

February 13, 2014

 

 

 

 

Docket No.:No: 13-SP-4968

Parties:JOHN T CAMPBELL, Plaintiff V. DAMARIS SANTIAGO, Defendant.

Judge:/s/ Robert Fields

Date:January 23, 2014

WESTERN DIVISION

ORDER
This matter came before the court on January 9, 2014 for trial. After consideration of the evidence admitted at trial, at which the plaintiff appeared with counsel and the defendant appeared self-represented, the following findings, rulings, and judgment shall enter:

1. Background: The plaintiff, John T Campbell (“landlord”) owns a multi-family property located at 3 Center St in Holyoke, Massachusetts. The defendant, Damaris Santiago (“tenant”), rents the second floor unit at the premises (“premises”). This tenancy began in September, 2006 and the contract rent is $775 per month, of which the tenant’s share is $175. The landlord commenced a for cause summary process eviction action, alleging various lease violations. The tenant denies the claims and asserts a counterclaim of breach of the covenant of quiet enjoyment.

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2. Landlord’s Claims: The lease violations asserted by the landlord included: disconnecting of safety device/fire alarms, talking out of the windows/other noise, water damage, destruction of light fixtures, and leaving personal items in the cellar unauthorized.

3. The landlord failed to meet his burden of proof on any of his allegations. It is clear that the real reason the landlord commenced these eviction proceedings is that the noise of the tenant’s granddaughter is disturbing him and he wants to terminate the tenancy because of these disturbances and not for the pretextual reasons stated in the notice to quit. Accordingly, judgment shall enter for the tenant on the landlord’s claim for possession.

4. Tenant’s Claim for Breach of Quiet Enjoyment: The tenant asserted a claim that the landlord has harassed her and breached her covenant of quiet enjoyment. I credit the tenant’s testimony that there has been on-going harassment for many years of this tenancy that include belligerent phone calls, yelling, use of profanity, and unwelcome visits from the landlord on many occasions since the tenancy began in 2006. The landlord’s courtroom demeanor itself provided some indication of how he might communicate with the tenant in the manner described by her testimony. The tenant testified credibly that the landlord’s aggressive and rude manner in which he addresses the tenant has seriously affected her, exacerbating her tendency to become depressed when overwhelmed. In addition to having to suffer such a protracted period of time of harassment, the tenant explained that she has not been able to entertain company in her house because of the harassment.

5. Landlords are liable for breach of the covenant of quiet enjoyment if the natural and probable consequences of their actions or omissions causes a serious interference with the tenancy or substantially impairs the character and value of the premises. G.L.c. 186, s. 14; Simon

 

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v. Solomon, 385 Mass. 91, 102, 431 N.E.2d 556, 564 (1982). Although a showing of malicious intent is not required, “there must be a showing of at least negligent conduct by the landlord.”Al-

Ziab v. Mourgis, 424 Mass. 847, 851, 679 N.E.2d 528, 530 (1997). Having heard the quiet enjoyment claim and viewing the evidence of lease violations as pretext, there was a clear breach of quiet enjoyment. For the foregoing reasons, the tenant is awarded damages equaling three months’ rent for her claim of breach of quiet enjoyment, totaling ($775 X 3) $2,325.

6. Conclusion and Order: For the above reasons, judgment shall enter for the tenant on the landlord’s claim of breach of the lease and for her claim of breach of the covenant of quiet enjoyment. Therefore, judgment for possession and an award of $2,325 shall enter for the tenant.

 

So entered this 23rd of January, 2014.

 

/s/ Robert Fields

Associate Justice

January 23, 2014

 

 

 
Docket No.:No: 13-SP-4846

Parties:KOCH HOLDING CO INC., Plaintiff V. NICOLE LAURO, Defendant.

Judge:/s/ Robert Fields

Date:February 6, 2014

WESTERN DIVISION

ORDER

This matter came before the court on January 13, 2014 for trial. After hearing, at which the landlord appeared with counsel and the tenant appeared self-represented, and after consideration of the evidence admitted at trial, the following findings of fact, rulings of law and order for judgment shall be entered:

1. Background: The plaintiff, Koch Holding Company, Inc. (hereinafter, “landlord”), owns a two family house located at 9-11 Kingsley Avenue in Northampton, Massachusetts. The defendant, Nicole Lauro (hereinafter, “tenant”), has resided in unit 9 (“premises”) since June, 2003 and the current monthly rent is $925.

2. Landlord’s claim for possession and for rent: The parties stipulate to the tenant’s receipt of the October 28, 2013 Notice to Quit For Non-Payment of Rent. What is also not in dispute is that when said notice to quit was delivered and received, the rent for August, 2013 had already been paid by the tenant and processed by the landlord. Thus, when the notice to quit states in the October, 2013 notice, it incorrectly sought rent of $2,775 when in fact the amount of

 

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rent outstanding was $1,850. The notice also includes language that informs the tenant that if she pays “the full amount of rent due within ten days after receipt of this Notice” she prevent the termination. This is “cure right” is statutorily provided to tenants in the Commonwealth. By demanding more money for rent that was outstanding, the landlord—whether inadvertently or not—denied the tenant her cure right stated in the notice. As such, the notice to quit is deficient and the landlord’s claim for possession is dismissed.

3. Though there was some suggestion made by the landlord that the tenant owes rent from prior to September, 2013, there is no evidence that this is accurate. In fact, it is contrary to the evidence provide by the landlord. In his rent ledger, admitted as Exhibit 4, which represents any and all rent outstanding from January 1, 2013 through October 25, 2013, there is no rent owed prior to August, 2013. As such, I find that the amount of rent, use, and occupancy outstanding from the beginning of this tenancy through the month of the trial is $4,625.

4. Breach of the Covenant of Quiet Enjoyment: When the tenant first moved onto the premises, in June, 2003, she had a dog. The landlord had a “no pet” rule but the tenant explained to the landlord that it was a service dog and that she was disabled. The landlord agreed to waive the “no pet” provision of the lease. Thereafter for ten years the landlord was aware that the tenant had a service dog and that the “no pet” clause of the lease was waived. Ten years later, with the tenant continuously having a pet dog, there was an incident reported on or about May 1, 2013, to the landlord by a neighbor of the rental property. That neighbor reported that his dog had been attacked by a dog residing at 9-11 Kingsley Avenue. The landlord’s response was swift and very intense. He immediately sent a letter dated May 2, 2013 to the tenant requiring her to remove the dog, that it was non-negotiable, and ignored the fact that he had allowed the dog to live at the residence from day one and for ten years as an accommodation to disabled

 

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tenant.

5. Landlords are liable for breach of covenant of quiet enjoyment if the natural and probable consequences of their actions or omissions causes a serious interference with the tenancy or substantially impairs the character and value of the premises. G.L.c. 186, s. 14; Simon v. Solomon, 385 Mass. 91, 102, 431 N.E.2d 556,564 (1982). Although a showing of malicious intent is not required, “there must be a showing of at least negligent conduct by the landlord.”AlZiab v. Mourgis, 424 Mass. 847, 851, 679 N.E.2d 528, 530 (1997). I find that the landlord’s May 2, 2013 letter to the tenant threatening to evict her due to having the dog and his disregard of the tenant’s special need to have her service dog—whether purposefully forgetful of the tenant’s disability or simply callously so—violated the tenant’s covenant of quiet enjoyment and I award the tenant damages equaling three months’ rent, totaling $2,775.

6. Retaliation: On August 14, 2013, the tenant sent a letter to the landlord which, among other things, reported conditions of disrepair at the premises and that she is being told that unless they are repaired she will be justified in withholding her rent. The letter indicated that she would like to discuss same when she returned from her holidays in September, 2013. The landlord then sent the October 28, 2013 eviction notice.

7. Reprisal constitutes a defense, G.L. c.239, s.2A and counterclaim, G.L. c.186, s.18, to the landlord’s eviction case. The sequence and timing of events which occurred between the parties gives rise to a presumption that the landlord’s action was reprisal against the tenant for her protected activities of complaining to the landlord about conditions of disrepair under G.L. c.239, s.2A, which provides in pertinent part as follows:

The commencement of such [summary process] action against a tenant, or the sending of a notice to quit upon which the summary process action is based.. .within six months after

 

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the tenant has.. .exercised such rights.. .shall create a rebuttable presumption that such summary process is a reprisal…

 

8. The presumption of reprisal may be rebutted only by “clear and convincing” evidence that the landlord 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,” G.L. c.239, s.2A and G.L. c.186, s.18, irrespective of the tenant’s protected activities. The landlord has not rebutted the presumption of reprisal. In fact, he testified that the tenant has never really been current in her rent over the entirety of the tenancy but all of a sudden he nonetheless sends an eviction notice for rent shortly after receiving the tenant’s August 14, 2013 letter reporting problems. The landlord is liable for between one and three months rent. The tenant is awarded, therefore, three months’ rent for her claim of retaliation totaling $2,775 as I find the retaliatory action particularly egregious.

9. The Tenant’s Remaining Claims: I find and so rule that the tenant failed to meet her burden of proof on her remaining claims asserted in her Answer.

10. Conclusion and Order: Based on the foregoing, and in accordance with G.L. c.239, §8A, judgment shall enter for possession and for $925 for the tenant. This represents the award of damages of $5,550 for the tenant MINUS $4,625 awarded the landlord for unpaid use and occupancy through January, 2014.

 

So entered this 6th day of February, 2014.

 

/s/ Robert Fields

Associate Justice

February 6, 2014

 

 

 

 

Docket No.:No: 12-SP-3465

Parties:BOWDITCH LLC, Plaintiff, V. MITCHELL J. FONDAKOWSKI, Defendant.

Judge:/s/ Robert Fields, Associate Justice

Date:March 14, 2013

Hampshire, ss

Western Division

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

This matter came before the court for summary process trial on March 11, 2013, at which both parties were represented by counsel. After consideration of all of the evidence admitted at trial, the following findings of fact, rulings of law, and order for judgment shall enter:

1. Background: The plaintiff, Bowditch, LLC (landlord) is a company that owns a 58-room SRO style housing complex located at 129 Pleasant Street in Northampton, Massachusetts. The defendant, Mitchell J. Fondakowski (tenant), has resided at the premises for many years and currently resides in Unit #11 (subject premises) at a monthly rental rate of $380.

2. Landlord’s Claim for Possession: The parties stipulate to the landlord’s prima facie case regarding termination of the tenancy and commencement of these eviction proceedings. Specifically, the landlord terminated the tenancy with a no-fault notice to quit dated June 24, 2012. The notice, consistent with G.L. c.186, s.12, terminated the tenancy and offered a new

 

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tenancy at a higher monthly rental rate. After the requisite rental period, with the tenant not paying the higher rent, the landlord then had the tenant served with a summary process summons and complaint on August 9, 2012. The parties further stipulated that no rent is currently outstanding.

3. Tenant’s Defenses and Counterclaims: What remains for adjudication are the tenant’s defenses and counterclaims which include claims of breach of the warranty of habitability, violations of G.L. c.93A, and retaliation in violation of G.L. c.239, s.2A and G.L. c.186, s.18.

4. Warranty of Habitability: The tenant described the condition of the common bathrooms as consistently being filthy with dried feces, vomit, and dirt. Additionally, the tenant described the common kitchen facility as consistently in a state of filth. The tenant described the hallways and hallway carpets in a similar light, with possibly incontinent residents causing urine and feces to be present and without prompt and thorough cleaning. The tenant described these conditions as pretty much existing since he was fired from his job in November, 2010, when his duties included cleaning these areas. The tenant’s testimony is not that the landlord takes no steps to clean these areas, but that it does not clean them sufficiently in accordance with the minimum standards of human habitation.

5. The tenant’s testimony, and its accuracy, is bolstered by the various sanitary code reports issued by the city’s Board of Health and emails to the landlord from one of the Board’s Director, Ben Wood, and inspector, Ed Smith, during this same time period (since November, 2010). Said citations and follow up emails relate to unsanitary conditions in the common bathrooms, kitchen facilities, and hallways and describe the exact conditions detailed by the

 

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tenant with comments that these areas appeared to their inspectors as having not been washed sufficiently for days or longer.

6. The tenant’s allegations of these conditions at the premises constitute a defense and counterclaim based upon breach of the implied warranty of habitability. The landlord’s response to the tenant’s allegations is essentially that it does its best to keep the common areas clean and that it is a particularly difficult task given the SRO population. Additionally, the landlord testified that the conditions for which it was cited by the Board of Health have been corrected. I credit the tenant’s testimony that though the landlord makes the extra effort to clean the common areas when it is cited by the city, such efforts are not made on a continuance basis and the unsanitary conditions promptly return and persist and worsen with time. Though I can appreciate, as the landlord argues, that the tenant population being served at the premises may pose greater sanitary challenges in the common bathrooms, kitchens, and hallways, than the average non-SRO tenant population, it must nonetheless comply with the State Sanitary Code; even if it means increasing resources directed towards the upkeep of sanitary conditions. In fact and law, the landlord is strictly liable for breach of the warranty of habitability, Berman & Sons v. Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979), rendering his argument about the purported great challenges of this tenant populations irrelevant to this claim as a matter of law.[1]

7. The measure of damages for breach of the implied warranty of habitability is the difference between the value of the premises as warranted, and the value in their actual condition. Haddad v. Gonzalez, 410 Mass. 855, 855, 576 N.E.2d 658 (1991). It is usually impossible to fix

 

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[1] Note: This notion that the SRO tenant population poses significant sanitary challenges was not supported by evidence admitted at trial but was proffered by the landlord’s counsel in his closing remarks.

 

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damages for breach of the implied warranty with mathematical certainty, and the law does not require absolute certainty, but rather permits the courts to use approximate dollar figures so long as those figures are reasonably grounded in the evidence admitted at trial. Young v. Patukonis, 24 Mass.App.Ct. 907, 506 N.E.2d 1164 (1987).

8. I find that the fair rental value of the premises has been reduced by 20%, on average, since November, 2010. This average takes into consideration that the landlord occasionally addressed the unsanitary conditions in the bathrooms, kitchens, and hallways more thoroughly and in a sanitary manner when complying with the Board of Health citations. In their totality, however, the substandard conditions are ongoing, pervasive, and seriously degrade the habitability of the premises. The defendant’s damages for the landlord’s breach of the warranty of habitability are therefore $380 (monthly rental value from November, 2010 through July, 2012) x 20% = $1,520 (20 months) PLUS $460 (monthly rental value from August, 2012 through February, 2013) x 20%= $644 (7 months); totaling: 2,164.[2]

9. Chapter 93A; Consumer Protection Act: In renting an apartment with State Sanitary Code violations, and in failing to remedy those violations after notice thereof, the landlord committed unfair and deceptive trade practices in violation of G.L. c. 93A, and the Attorney General’s regulations thereunder, 940 CMR 3.17. Pursuant to c. 93A, s.9(3), the landlord is liable for multiple damages, not less than double nor more than treble, if his violation was “willful or knowing.” “The ‘willful or knowing’ requirement of s.9(3), goes not to actual

 

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[2] Though the parties never entered into a new tenancy with a higher rent set at $460, the measure of damages under a breach of warranty of habitability is based on the value of the premises, which has been established by the landlord at $460. The parties also stipulated to the admissibility of the Federal Register, which appears to support the $460 figure.

 

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knowledge of the terms of the statute, but rather to knowledge, or reckless disregard, of conditions in a rental unit which, whether the defendant knows it or not, amount to violations of the law. Montanez v. Bagg, 24 Mass. App. Ct. 954, 510 N.E. 2d 298, 300 (1987). The landlord herein knew of and recklessly disregarded serious substandard conditions at the premises as described above. The landlord is an experienced landlord, owning 58 units in this complex alone. Although the facts of this case would arguably justify an award of treble damages, I am exercising my discretion to award double damages under c. 93A, or $4,328, and award reasonable attorneys fees as a prevailing party under the statute.

10. Retaliation: I find and rule that the tenant failed to meet his burden on his claim of retaliation.

11. Conclusion and Order: Based on the foregoing, and pursuant to G.L. c.239, s.8A, an order shall enter for the defendant tenant for possession (as this is a no-fault eviction in which the tenant prevailed on his defenses and counterclaims and is owed damages above what is owed to the landlord) and award the defendant damages in the amount of $4,328 plus reasonable attorneys fees and costs. The tenant shall file with the court a petition for said fees and costs by no later than ten days after the date of this order noted below. The landlord shall have ten days after receipt of said petition to file any opposition thereto. After review of the pleadings, I shall make a determination on the fees and enter a judgment consistent with this order.

 

So entered this 14th day of March, 2013.

 

/s/ Robert Fields, Associate Justice

March 14, 2013

 

 

 

Docket No.:No: 12-SP-3935

Parties:LORI FISHER (JBN PROPERTIES, LLC), Plaintiff, V. VIRGINIA BAILEY, Defendant.

Judge:/s/ Robert Fields,Associate Justice

Date:May 23, 2013

Hampden, ss

Western Division

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

 

This matter came before the court for summary process trial on May 1, 2013, at which both parties appeared through counsel. After consideration of the evidence admitted at trial, the following findings, rulings and order for judgment shall enter:

1. Background: As of May 25, 2012, the plaintiff, Lori Fisher and JBN Properties (Receiver) was appointed receiver of the subject premises located at 33 Littleton Street, 2nd and 3rd floors, Springfield, Massachusetts (premises). The defendant, Virginia Bailey (tenant), is the tenant of said premises, having commenced her tenancy with the owners of the property Charles and Monica Dyer (owners) on or about October 1, 2011. Thus, the tenant was already residing at the premises with her six children when the Receiver was appointed. The parties stipulate that the rent is $600 per month and further stipulate to the receipt of the August 28, 2012 14-day

 

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notice to quit for non-payment and that the outstanding rent through May, 2013 is $6,600.

2. Having stipulated to the Receiver’s prima facie case, the matters to be adjudicated by the court are the tenant’s counterclaims and defenses in accordance with G.L. c.239, s.8A. Such claims and defenses are: Breach of the Warranty of Habitability, Breach of the Covenant of Quiet Enjoyment, Violation of G.L. c.93A, and Violation of G.L. c.151B.[1]

3. Breach of the Covenant of Quiet Enjoyment[2]: Though the most pressing issue present at the premises that formed the basis for the City of Springfield to petition the court for the appointment of a receiver was the presence of lead-based paint, the Receiver accepted the appointment of this receivership fully aware that she was responsible to address any and all code violations present at the premises as well as the abatement of lead-based paint present. This is not only evident in the express language in the order appointing the Receiver in this matter but also by her own admissions during the trial. Nevertheless, the Receiver did very little to fulfill her obligations in regards to this receivership.

4. Furnace and Water Service: The furnace at the premises does not have an automatic refill system. Thus, the water level must be checked routinely and water must manually be

 

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[1] The Receiver was heard on three pre-trial motions. The motions, brought pursuant to G.L. c.111, s.127I, to dismiss the tenant’s claims of breach of the covenant of quiet enjoyment and violations of G.L. c.93A are denied. The Receiver’s motion to dismiss the tenant’s claim of violation of the security deposit law was assented to by the tenant as long as it does not bar her from bringing such a claim against the owners of the property (the Dyers).

 

[2] The court views the counterclaims in this matter against a Receiver with an added level of scrutiny because it is not the owner of the property and all of the conditions of disrepair present preexist her appointment as Receiver. I note here that after hundreds of receiverships being established in the Western Division Housing Court, this is the first case where I have had to rule on a tenant’s counterclaims against a receiver. Thus it is with an added layer of gravity that the court considers the evidence.

 

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refilled (by the turning of a valve) each time the water level falls below a certain point. This obligation fell virtually completely upon the tenant and I credit her testimony that during the coldest weather, she would have to adjust the water level daily and sometimes more than once per day. Failure to do so would result in a lack of heat and hot water.

5. Though the absence of an automatic water refill system does not in of itself necessarily violate the covenant of quiet enjoyment, saddling the obligation to refill the water level upon a tenant is a per se violation of the covenant, as I find that it has such a serious impact on the tenancy as to constitute a breach of quiet enjoyment in violation of G.L. c. 186, s. 14. Simon v. Solomon, 385 Mass. 91 (1982). Although a showing of malicious intent in not required, “there must be a showing of at least negligent conduct by a landlord.” Al-Ziab v. Mourgis, 424 Mass. 847, 851, 679 N.E.2d 528, 530 (1997) and I so hold here. The first order of business upon appointment as receiver is to inspect the premises in their entirety, including heating, electrical and plumbing systems as well as basement, roof, commons areas, and the outside of the premises. Such an inspection would have identified the water refill system. Additionally, the Receiver had the furnace serviced and should have (again) been made aware of the manual refill system. The tenant is entitled to the greater of actual damages or three times the monthly rent. Having not put into evidence any actual damages, the tenant shall be awarded three months’ rent ($1,800) plus reasonable attorneys fees and costs.

6. Lead Paint : At the May 25, 2012 code enforcement hearing at the court, at which the Receiver was appointed, the importance of abating the presence of lead paint could not have been stressed more. Over and over during the thirty minute hearing, the owners asked for further extension of time to obtain needed funding for said abatement at an anticipated cost of $28,000

 

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and the city arduously petitioned for appointment of the receiver due to the massive delay in deleading that had already occurred. When the court inquired of the Receiver’s attorney if given the gravity and cost of the deleading his client was prepared to step in and immediately delead, counsel asked for a recess in the proceedings so he could consult with his client. After a recess, counsel reported that the Receiver was ready, willing and able to have the premises deleaded immediately. Based on that commitment, the court appointed the Receiver. At the time of this trial, that appointment was one year ago and no deleading has been accomplished.

7. The Receiver testified at trial that at the time she was appointed in May, 2012, she was under the false impression that she was certified to conduct some deleading. She then had to be “recertified” and was so approximately in September or October, 2012. Additionally, the Receiver testified that she was not able to obtain the financing she expected to pay for the deleading. The testimony, nor any other admitted evidence, is informative as to why the Receiver needed to be certified if she was also going to need financing to pay for the deleading. One would think it would be one or the other. The Receiver did not provide sufficient evidence to clarify what she has been doing to fulfill her obligation to have the premises deleaded over the past twelve months. She neither explained what financing she sought and from whom and when, exactly, nor why she needed to be certified. All the while, the tenant and her family-which includes a child under the age of six-continue to reside at the premises with lead based paint present. Additionally, it is very foreseeable that the Receiver’s appointment and ongoing commitment and obligation to delead might likely cause the owners of the property to cease their own efforts to obtain financing to accomplish the deleading. This is by no means a basis to absolve the owners of their legal obligation to delead the premises, but to simply and logically

 

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attribute this obvious dynamic to the effects of the Receiver’s failures to delead.

8. I find that the Receiver’s failure to delead the premises has seriously interfered with the quiet enjoyment and use of the premises and forms an independent violation of the G.L. c.186, s. 14 separate and distinct from the violation discussed above which resulted from the Receiver’s failure to address the water refill system for the furnace. Thus, by separate and discreet actions the Receiver violated a separate and distinct prong of G.L. c.186, s.14 by failing to delead the premises and thus “directly or indirectly interfer[ing] with the quiet enjoyment of any residential premises by the occupant”. See, Rosa v. Rodriguez et al., Hampden Housing Court, Docket No. LE-3006-S-87 (Abrashkin, J.); see also Berndt v Lee, Western Division Housing Court, Docket No. 11-SP-3637 (Fields, J). As such, I award the tenant with additional damages of three months’ rent ($1800) plus reasonable attorneys fees in accordance with G.L. c. 186, s.14.

9. Water and Sewer Service : The tenant also testified about two occasions when the , water service was either shut off or on the brink of being shut off. I find that the tenant did not meet her burden of proof that the Receiver was willful or knowing in each of these instances. On the occasion that the water was actually shut off, it is unclear that the Receiver had any advance notice and once notified that it had in fact been curtailed, the Receiver had it restored that same day. In regards to the second incident, once the Receiver was notified from the tenant of the imminent service curtailment, the Receiver took the steps to avoid the service being shut off As such, no damages are awarded to the tenant on her claims for breach of the covenant of quiet enjoyment for said allegations.

 

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10. Breach of the Warranty of Habitability: The tenant testified credibly that the Receiver never installed smoke and carbon monoxide detectors at the premises. Though the Receiver initially purchased said detectors, they were left on a shelf at the premises and remained undiscovered until the tenant found them and contacted the Receiver. The Receiver informed the tenant that she did not know what happened to them but then failed to have the installed. At trial, the Receiver testified that she believed that her nephew had in fact installed them.

11. This vignette regarding the smoke detectors is illustrative of how the Receiver treated her obligations in this tenancy. By her own testimony, the Receiver has scarcely been present at the premises. She has not been inside or on the grounds of the premises since August or September, 2012 and has only conducted “drive by” views from her car on a monthly basis since her initial visits at the beginning of the receivership. I find that there were insufficient smoke nor carbon monoxide detectors installed at the premises throughout the receivership period. This condition violates the minimum standards of fitness for human habitation as established by Article II of the State Sanitary Code, 105 CMR 410.00 et seq. Although it is well settled law that a landlord is strictly liable for breach of the implied warranty of habitability irrespective of the landlord’s good faith efforts to repair the defective condition [Berman & Sons, Inc., v Jefferson, 379 Mass. 196 (1979)], here the Receiver was fully aware and/or should reasonably have been fully aware, that the smoke detectors she purchased for the premises were not installed[3].

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[3] The tenant also testified that during her entire tenancy (predating and throughout the receivership) the third floor space connected to her apartment was never made available for her use. The walls remained unfinished and access to it was locked off at all times. The parties agreed that the rent was reduced to $600 because of that condition but differ as to whether or the

 

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12. It is usually impossible to fix damages for breach of the implied warranty with mathematical certainty, and the law does not require absolute certainty, but rather permits the courts to use approximate dollar figures so long as those figures are reasonably grounded in the evidence admitted at trial. Young v. Patukonis, 24 Mass.App.Ct. 907, (1987). The measure of damages for breach of the implied warranty of habitability is the difference between the value of the premises as warranted, and the value in their actual condition. Haddad v Gonzalez, 410 Mass. 855 (1991). I find that the average rent abatement of 15% fairly and adequately compensates the tenant for the diminished rental value of the premises resulting from the lack of sufficient smoke and carbon monoxide detectors for the year that the Receiver was in place. The tenant’s actual damages for the landlord’s breach of the warranty of habitability are $1,080. This represents the contract rent of $600 X 15% for twelve months.

13. Chapter 93A; Consumer Protection Act: By accepting the appointment of this receivership and then by failing to install the smoke and carbon monoxide detectors, the Receiver committed unfair and deceptive trade practices in violation of G.L. c. 93A, and the Attorney General’s regulations thereunder, 940 CMR 3.17. Pursuant to c. 93A, s.9(3), the Receiver is liable for multiple damages, not less than double nor more than treble, if his violation was “willful or knowing.” “The ‘willful or knowing’ requirement of s.9(3), goes not to actual knowledge of the terms of the statute, but rather to knowledge, or reckless disregard, of conditions in a rental unit which, whether the defendant knows it or not, amount to violations of the law. Montanez v.

 

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Receiver had agreed to complete the work on the third floor and integrate it into the subject premises. I find that the tenant failed to meet her burden of proof on this issue and do not abate the rent due to the in accessability of the third floor.

 

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Bagg, 24 Mass. App. Ct. 954, 510 N.E. 2d 298, 300 (1987). The Receiver herein knew of and recklessly disregarded the lack of smoke and carbon monoxide detectors. The Receiver has been appointed in several receiverships and has managed between 300 and 400 units over the past three years. Although the facts of this case would arguably justify an award of treble damages, I am exercising my discretion to award double damages under c. 93A, or $2,160, and award reasonable attorneys fees as a prevailing party under the statute.

14. Conclusion and Order: For the above reasons, and pursuant to the requirements of G.L. c. 239, s.8A, the tenant may, within ten days of the date of this order, deposit with the Clerk of this court the sum of $840 plus costs. This represents the difference between the award of $6,600 (Receiver’s rent claim through May, 2013) MINUS $5,760 (tenants’ damages) plus court costs. If the tenant does so, the sum deposited with the court is forthwith to be released to the Receiver, and judgment for possession is to enter for the tenant. If the tenant fails to make the deposit required by this order, judgment is to enter for the plaintiff Receiver for possession and $840 plus costs at the expiration of the statutory ten day period[4].

15. Attorneys Fees: Additionally, the tenant shall file with the court a petition for reasonable attorneys fees and costs by no later than ten days after the date of this order noted below. The Receiver shall have ten days after receipt of said petition to file any opposition thereto. After review of the pleadings, I shall make a determination on the fees and enter a judgment consistent with this order.

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[4] The tenant also claimed violation of G.L. c.151B and I find that the tenant did not meet her burden of proof on said claim.

 

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So entered this 23rd day of May, 2013.

 

/s/ Robert Fields,Associate Justice

May 23, 2013

 

 
Docket No.:No: 12-SP-5204

Parties:RICHARD AND GEORGIA LAVALLEE, Plaintiffs, V. RONALD CERTER and LISA WOLFE, Defendants.

Judge:/s/ Robert G. Fields, Associate Justice

Date:January 4, 2013

Hampden, ss

Western Division

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned matter came before the court for trial on January 3, 2013, after which the following findings of facts and rulings of law are to enter:

1. Background: The plaintiffs, Richard and Georgia Lavallee (landlords), own a two-family home located at 1213-1215 Grattan Street in Chicopee, Massachusetts, and rent “1215” (premises) to the defendants, Ronald Certer and Lisa Wolf (tenants). The tenancy began in February, 2000 and the current monthly rent is $600.

2. The Landlord’s Claim for Possession: The landlords have established the prima facie elements of their case. Specifically, the parties stipulated to the “no-fault” notice to quit, proper service of said notice and that $1,200 is outstanding in use and occupancy through January 31, 2013.[1] The outcome of the case turns, therefore, on the tenants’ defenses and

 

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[1] This represents use and occupancy for December, 2012 and January, 2013. The parties stipulated that the tenants tendered rent for December, 2012 but it was returned to them by the landlords.

 

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counterclaims which allege violation of the security deposit laws and breach of the covenant of quiet enjoyment stemming from the landlords’ failures to properly address the tenants’ complaints about conditions at the premises and their neighbors, and violations stemming from an “open house” conducted at the premises by the landlords.

3. Security Deposit: At the commencement of the tenancy in February, 2000, the tenants paid the landlord a $500 security deposit. From that time on, the landlords have never provided the tenants with the annual interest as is required by the statute. G.L. c.186, s.15B. Though the landlord testified that after the first year of the tenancy she asked the tenants if they wanted the interest and that the tenants informed her that she could simply leave it in the bank, the statute is very clear in its requirement for an annual letter to be issued to the tenants. The statute reads in pertinent part that:

 

[a]t 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 sent to each such tenant the interest which is due or shall include the statement required by this clause a notification that he tenant may be deduct the interest from the tenant’s next rental payment. G.L. c.186, s.15B (3)(b).

 

4. Based on the landlords’ failure to comply with the statute, I rule that they have forfeited their right to the security deposit and award the tenants its return ($500) plus accrued interest.

5. Breach of Quiet Enjoyment: The tenants described how they used to take care of the outside of the premises, including mowing and lawn care. They did so for a number of years and the rent was reduced to compensate them for such care. This came to end when they were unable

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to carry out such activities due to the behavior of their neighbors who moved into 1213 Grattan Street. Though the rent went back up because the tenants couldn’t continue to take care of the outside of the property, the landlords thereafter failed to be diligent in such maintenance. For example, after a major storm at the premises the landlords failed to sufficiently address the debris and broken branches. The landlords also failed to properly respond to the tenants’ complaints about their neighbors until they reported problems to the Board of Health. Specifically, the tenants complaint to the landlords about the smell penetrating their apartment due to the placement of the garbage by the neighboring tenants. Though the landlords spoke to the other tenants, the landlords’ response was insufficient until until the Board of Health involvement. Additionally, the tenants repeatedly complained about the other tenants’ use of the lawn and driveway-including ongoing automotive gas spills-and the landlords were very slow to respond to these complaints.

6. On the occasion that the landlords conducted an “open house” at the premises in furtherance of their efforts to sell the premises, the landlords informed the tenants that they were required to leave the premises entirely. The tenants complied, even though they could see that the neighboring tenants did not so vacate the property. Additionally, in searching for their own alternate accommodations the tenants saw a picture on the internet of the inside of their living room as part of the landlords’ listing of the premises for sale. This was done without asking the tenants for permission.

7. A landlord is liable for breach of the covenant of quiet enjoyment if the natural and probable consequence of his acts causes a serious interference with the tenancy or substantially impairs the character and value of the premises. G.L. c. 186, s. 14; Simon v. Solomon, 385 Mass. 91, 102, 431 N.E.2d 556, 565 (1982). Although a showing of malicious intent in not required,

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“there must be a showing of at least negligent conduct by a landlord.” Al-Ziab v. Mourgis, 424 Mass. 847, 851, 679 N.E.2d 528, 530 (1997) . I find and rule that the landlord’s failure to properly and promptly address the ongoing problems with the neighboring tenants, the requirement that the tenants not be present at the premises at the “open house” and the use of a photograph of the tenants’ livingroom on the internet without their permission breached, in the aggregate, the tenants’ covenant of quiet enjoyment I hereby award the tenants a statutory claim equal to three months’ rent totaling $1,800 ($600 X 3).

8. Order for Entry of Judgment: For the above reasons, and pursuant to the requirements of G.L. c. 239, section 8A, a judgment shall enter awarding the tenant possession plus $1,100 (plus interest on the security deposit). This sum represents the award of damages to the tenant in the amount of $2,300 ($500 plus interest on the security deposit claim and $1,800 for breach of the quiet enjoyment) MINUS $1,200 awarded to the landlords for use and occupancy through January, 2013.

 

So entered this 4th day of January, 2013

 

/s/ Robert G. Fields, Associate Justice

January 4, 2013

 

 
Docket No.:DOCKET NO. 10-CV-0112

Parties:LINDA CARRERA, Plaintiff V. SUHER PROPERTIES, LLC, et al, Defendants.

Judge:/s/ Robert G. Fields, Associate Justice

Date:May 3, 2013

HAMPDEN, SS

WESTERN DIVISION

RULINGS AND ORDER ON CROSS MOTION FOR SUMMARY JUDGMENT

 

Following hearing, the following Rulings and Order are to enter:[1]

1.UNDISPUTED FACTS: The plaintiff Linda Carrera (plaintiff) and the class members she represents are or were tenants (as of April 22, 2007) of defendants Eric Suher, Suher Properties, and LLC, Biapita, LLC, and any other entity for which Eric Suher manages or controls that had the lease provision discussed below.

2.Paragraph 2 of the relevant lease provides, in relevant part:

 

If rent is not paid before the 5th of the month and no other arrangement is made in writing with the Lessor, a 14-day notice to quit will be delivered, and the sheriffs fee will be charged to the resident.

 

3.Each of the class members have signed a lease which contained the above lease provision. On or about July 29, 2009, the plaintiff served the defendants with a demand letter.

4.STANDARD: Summary judgment is appropriate when no material facts are in dispute and the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 569(c); Highlands Ins. Co. v. Aerovox, 424 Mass. 226, 232 (1997). The moving party bears the burden

 

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[1] At the hearing, I also denied the defendants’ motion for recusal. The defendants withdrew their motion to certify a question.

 

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of affirmatively demonstrating the absence of a triable issue and the fact that she is entitled to a judgment in her favor. Pederson v. Time Inc., 404 Mass. 14, 16-17 (1989). “If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact. . .” Pederson, 404 Mass. at 17. When reviewing a summary judgment record, the court credits facts in the light most favorable to the nonmoving party. Bisson v. Eck, 430 Mass. 406, 407 (1990); Gray v. Giroux, 49 Mass.App.Ct. 436, 437 (2000).

5.DISCUSSION: There can be no doubt that the above lease provision violates Massachusetts law, as it is unlawful for a landlord to exact a fee for service of a notice to quit prior to the entry of judgment in an eviction action. Commonwealth v. Chatham Development Co., Inc., 49 Mass.App.Ct. 525 (2000) (lease provision imposing fee for service of notice to quit for late payments violates G.L c. 186, s. 15B and 940 CMR s. 3.17(6)). There is no allegation, however, that the defendants at any time attempted to enforce the provision against any of the class members.[2] The sole question before the court, therefore, is whether the lease provision violation is also a violation of G.L. c. 93A where the landlord never enforced the illegal provision.

6.In Leardi v. Brown, 394 Mass. 151 (1985), the landlord included a provision in the lease which purported to waive the landlord’s obligation to maintain the rental unit in habitable condition under the State Sanitary Code. The Court determined that the mere inclusion of this unlawful provision in lease caused the tenant to suffer an injury, regardless of whether that

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[2] There is an allegation that the defendants requested the fee from the plaintiff, but there is no dispute that it was never enforced. There is no allegation that the fee was ever requested from any of the class members.

 

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provision had been enforced. Id. Specifically, the Court found that there was an invasion of the legally protected interest in being free from unlawful provisions in a tenancy agreement. Id.

7.This case is no different than Leardi. In Leardi, the lease misled the tenants regarding the landlord’s statutory obligation to maintain the premises in habitable conditions, likewise the lease here is misleading as to the defendants’ ability to impose what is essentially a late penalty for failing to time pay rent. Faced with serious condition violations and the imposition of the sheriff’s fee and the threat of service of an eviction notice, a tenant would be deterred from withholding rent.

8.The defendants argue that the more recent case of Hershenow v. Enterprise Rent-a-Car Co. Of Boston, Inc., 445 Mass. 790 (2006) either implicitly overruled Leardi, or that it narrowed the holding of Leardi such that the violation in this case does not fit within the outlined exception. I disagree.

9.In Hershenow, the court found that there was no “injury” under G.L. c. 93A, s. 9, where an unlawful contractual term had never been enforced. Hershenow v. Enterprise Rent-a-Car Co. Of Boston, Inc., 445 Mass. 790 (2006). The Court differentiated Hershenow from Leardi, however, finding that in Leardi, the tenants had proved a causal connection between the unlawful provision and a loss. Id. The Court went on to explain:

 

What Leardi did not do was to eliminate the required causal connection between the deceptive act and an adverse consequence or loss. In Leardi, the requisite causal connection was established: confronted by unhabitable conditions, the illegal lease terms would deter tenants from exercising their legal rights on pain of loss of their tenancy. Stated differently, the illegal lease terms acted as a powerful obstacle to a tenant’s exercise of his legal rights. If a tenant challenged unhabitable conditions by withholding rent, for example, he faced immediate eviction. The mere existence of statutorily prohibited lease provisions placed all tenants in a worse and untenable position than they would have been had the leases complied

 

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with the requirements of Massachusetts law. . . In marked contrast, the statutorily noncompliant terms in Enterprise’s automobile rental contracts did not and could not deter the plaintiffs from asserting any legal rights.

 

Id. at 799-800 (citations omitted).

 

10.This case clearly fits within the Leardi exception, as the imposition of the late penalty could surely act as a powerful obstacle. For example, as I stated from the bench, suppose a subsidized tenant paying only $25 per month in rental income is faced with horrible conditions; she may easily be deterred from withholding her rent because she would be faced with a roughly $50 penalty for sheriff service of an eviction notice. See also Pumiglia v. Northland Cliffside, Wester Division Housing Court, Docket No. 09-CV-1955 (Fein, J. 2012) (unlawful lease provisions violated G.L. c. 93A, regardless of whether they had been enforced).

11.ORDER. For the foregoing reasons, the plaintiff’s motion for summary judgment on the claim for violation of G.L. c. 93A is allowed, and the defendants’ motion for summary judgment is denied.

 

So entered this 3rd day of May, 2013.

 

/s/ Robert G. Fields, Associate Justice

May 3, 2013
Docket No.:No: 13-SP-2828
Parties:MARZENA PETERS, Plaintiff, V. CHARLIE TOLEDO and JESSICA SERRANO, Defendants
Judge:/s/Robert Fields, Associate Justice
Date:August 9, 2013Next Hit
Western Division
ORDER
This matter came before the court on August 8, 2012 for summary process trial, at which the parties appeared self-represented. After hearing and consideration of the evidence introduced at trial, the following findings of fact, rulings of law, and order for judgment shall enter:
1. Background: The plaintiff, Merzena Peters (landlord), manages a 4-unit building located at 10 Prospect Terrace in Springfield, Massachusetts. The defendants, Charlie Toledo n Jessica Serrano (tenants), rent Apartment #1L in that building (premises) for a monthly rent of $800. The tenants moved into the premises in May, 2008.
2. Landlord’s Claim Use and Occupancy and for Possession: The parties stipulated to the elements of the landlord’s prima facie case for possession. It is agreed that on or about June 29, 2013, the tenants received a 14-day notice-to-quit for non-payment of rent. Thereafter, the
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tenants were served with a summons and complaint. The parties further agree that $3,200 is outstanding in rent, use and occupancy through August 31, 2013.
3. The Tenants’ Claims and Defenses: What remains for adjudication, therefore, are the tenants’ defenses and counterclaims asserted by them in their Answer which include Breach of the Previous HitWarranty of HabitabilityNext Hit, Breach of the Covenant of Previous HitQuiet EnjoymentNext Hit, and Previous HitRetaliationNext Hit.
4. Previous HitWarranty of HabitabilityNext Hit; conditions of disrepair: The tenants testified about conditions of disrepair which include those listed by the city’s Inspectional Services in its van us reports and were the subject of a code enforcement litigation brought by the city (13-CV-352). Such conditions include rodent and cockroach infestation, mold, damaged walls, rotted or loose door jambs, ripped or missing screens, leaking kitchen sink, smoke or water damage, nonfunctioning ceiling fan in the bathroom, and electrical problems.
5. All of these conditions of disrepair constitute violations of the minimum standards o fitness for human habitation as set forth in Article II of the State Sanitary Code, 105 C.M.R. 410.00 et seq. These conditions at the premises constitute a defense based upon breach of the implied Previous Hitwarranty of habitabilityNext Hit, for which the landlord is strictly liable. Berman & Sons v. Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979). It is usually impossible to fix damages for breach of the implied warranty with mathematical certainty, and the law does not require absolute certainty, but rather permits the courts to use approximate dollar figures so long as those figures are reasonably grounded in the evidence admitted at trial. Young v. Patukonis, 24 Mass.App.0 907, 506 N.E.2d 1164 (1987). The measure of damages for breach of the implied Previous Hitwarranty of habitabilityNext Hit is the difference between the value of the premises as warranted (up to Code), and the value in their actual condition. Haddad v. Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991
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6. I find that the fair rental value of the premises was reduced by 20%, on average, as result of these conditions which I find existed from the first day of the tenancy (May, 2008) un il most of the conditions were repaired on or about July 8, 2013. Damages, therefore, for breach of the Previous Hitwarranty of habitabilityNext Hit in the amount of $9,600 will be awarded the tenants, representing 20% of the rent ($160) for 60 months.
7. Previous HitRetaliationNext Hit: After complaining to the landlord about conditions of disrepair to no avail, the tenants contacted the city’s Inspectional Services in April, 2013. The Inspectional Services inspected and issued a report on or about April 24, 2013. In May, 2013, the City commenced a code enforcement action against the landlord (13-CV-352). On June, 2013 the landlord had the tenants served with a notice to quit for non-payment of rent. The sequence an timing of events which occurred between the parties gives rise to a presumption that the landlord’s action was reprisal against the tenants for her protected activities of complaining to Inspectional Services and having them inspect the premises and issue a written citation regarding conditions of disrepair under G.L. c.239, s.2A. Reprisal constitutes a defense, G.L. c.239, s.2 and counterclaim, G.L. c.186, s.18, to the landlord’s eviction case.
8. The presumption of reprisal may be rebutted only by “clear and convincing” evidence that the landlord 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,” G.L. c.239, s.2A and G.L. c. 186, s. 18, irrespective of the tenants’ protected activities. The landlord has not rebutted the presumption of reprisal, and is therefor liable for between one and three months rent. The manner in which the landlord has conducted herself in this tenancy and during the hearing lead . me to believe that her Previous HitretaliationNext Hit was willing and purposeful and intended to retaliate and bully
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the tenants into vacating the unit. The tenants are awarded, therefore, three months rent for their claim of Previous HitretaliationNext Hit totaling $2,400.
9. Breach of the Covenant of Previous HitQuiet EnjoymentNext Hit: In April or May, 2013, the tenants approached the landlord and her agent with a form from the Department of Transitional Assistance. By completing the landlord portion of the form, the tenants would be eligible for rental arrearage and/or other housing related benefits. The landlord gave the form back without filling it out and informed the tenants that she would not fill it out unless they paid her the rent they owe.
10. By acting in this fashion, and denying the tenants their right to apply for and receive state and/or local housing benefits is a violation of the tenants’ rights under the state’s antidiscrimination laws at G.L. c.151B, s.4 (10). I also find that it is a violation of the tenants’ covenant of Previous Hitquiet enjoymentNext Hit in accordance with G.L. c.186, s.14. Landlords are liable for breach of the covenant of Previous Hitquiet enjoymentNext Hit if the natural and probable consequence of their acts or omissions causes a serious interference with the tenancy or substantially impairs the character and value of the premises. G.L. c. 186, s. 14; Simon v. Solomon, 385 Mass. 91, 102, 431 N.E.2 556, 565 (1982). Although a showing of malicious intent in not required, “there must be a showing of at least negligent conduct by a landlord.” Al-Ziab v. Mourgis, 424 Mass. 847, 851, 679 N.E.2d 528, 530 (1997).
11. I find the tenants’ testimony credible in their description of this event. The landlord proved herself to be not credible during the trial. When asked if she, or her father who owns t subject premises, ever received a form to fill out from the Department of Transitional Assistance she said that no such form was ever mailed to her or him. Later in the trial, however, she had
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admit that such a form was handed to her by the tenants and when the court inquired as to why she had testified earlier that no such form had been given her, she explained that she had said earlier that no such form had been “mailed” to her—-as opposed to it being handed to her. I find and rule that the denial of the tenants’ request to complete the form as a prerequisite to being eligible for public benefits impairs the enjoyment of the premises and award the tenants three months’, totaling $2,400.
12. Conclusion and Order: Based on the foregoing, and in accordance with G.L. c.2 9, 8A, judgment shall enter for the defendant tenants for possession and for $11,200. [This represents an award to the tenants of $9,600 (Previous HitWarranty of HabitabilityNext Hit) plus $2,400 (Previous HitRetaliationNext Hit plus $2,400 (Previous HitQuiet Enjoyment) MINUS $3,200].
/s/Robert Fields, Associate Justice
August 9, 2013

 

 

Docket No.:No: 13-SP-2464
Parties:JOHN and GLEN DIKE, Plaintiffs, V. ERIC DOWDDefendant
Judge:/s/Robert Fields, Associate Justice
Date:August 23, 2013Next Hit
Western Division
ORDER
This matter came before the court on August 19, 2013 for summary process trial, at which the plaintiffs appeared self-represented and the defendant appeared with counsel. After hearing and consideration of the evidence introduced at trial, the following findings of fact, rulings of law, and order for judgment shall enter:
1. Background: The plaintiffs, John and Glen Dike (landlords), own and manage a 3 unit building located at 103 Maple Street in Ware, Massachusetts. The defendant, Eric Dowd (tenant), rents one of the units (premises) for a monthly rent of $850. The tenant moved into the premises in November, 2012.
2. Landlord’s Claim for Use and Occupancy and for Possession: The parties stipulated to the tenant’s receipt of a proper “no fault” notice which terminated the tenancy as
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July 1, 2013. Assessing the amount of the outstanding use and occupancy through August, 2013, is a little less clear but nonetheless calculable given the testimony of the parties. Specifically, the commencement of the tenancy, the tenant asked the landlords if he could pay a lump sum u front that would cover first and last months’ rent plus security deposit and $2,000 additional funds to be used to reduce the rent from $850 to $650 per month. The landlords not only agree but also to agreed to make a concession of one month ($200) so that the tenant’s rent-other than the first month’s rent which the parties agreed was paid at the full $850 rate-would be $650 ft the following eleven months.[1]
3. Though the landlord could have done a much better job of accounting for these fund, with receipts and a more detailed rent ledger, there is no dispute between the parties that this was the arrangement and the parties acted in a manner consistent with that arrangement at all times.[2] Accordingly, the amount of outstanding use and occupancy through the month of trial is $2,250 This represents the unpaid contract rent of $850 per month for December, 2012, and January, May, July, and August, 2013 ($4,250) MINUS $2,000 paid in advance[3].
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[1]Though the landlords testified that they gave two months’ concession of rent, it is really only one months concession as the tenant paid the full rate of $850 for November, 2012 plus $2,000 towards ten months of “reduced” rent, leaving one more month of a twelve-month peril to be “waived” by the landlords. The landlords’ accounting, admitted as Exhibit 16, did not he clarify matters as it fails reflect the full payment of $4,550 paid at the commencement of the tenancy.
[2]Because the landlords did not require this advance payment of rent, but were merely obliging the tenant’s request, there appears to be no violation of G.L. c.186, s.15B which prohibits landlords from “requiring” payments in excess of first and last month’s rent, security deposit and cost of a new lock and key.
[3]This accounting leaves the security deposit and last month’s rent paid at the commencement of the tenancy intact.
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3. The Tenants’ Claims and Defenses: What remains for adjudication, therefore, are the tenant’s defenses and counterclaims asserted in her Answer which includes a Breach of the Previous HitWarranty of HabitabilityNext Hit, Breach of the Covenant of Previous HitQuiet EnjoymentNext Hit, violation of the Security Deposit laws, and violation of the Consumer Protection Act at G.L. c.Previous Hit93ANext Hit.
4. Breach of the Covenant of Previous HitQuiet EnjoymentNext Hit: The tenant was prepared to move into the subject premises for November 1, 2013 which should have been the first day of his tenancy. Instead, he found that the subject premises did not have a working heating system. The system was repaired on November 8, 2013 and shortly thereafter the tenant moved into the premises. Additionally, the cost of disrepair totaling $174.72 was paid for by the tenant.
5. Landlords are liable for breach of the covenant of Previous Hitquiet enjoymentNext Hit if the natural and probable consequence of their acts or omissions causes a serious interference with the tenancy or substantially impairs the character and value of the premises. G.L. c. 186, s. 14; Simon v. Solomon, 385 Mass. 91, 102, 431 N.E.2d 556, 565 (1982). Although a showing of malicious intent in not required, “there must be a showing of at least negligent conduct by a landlord.” AlZiab v. Mourgis, 424 Mass. 847, 851, 679 N.E.2d 528, 530 (1997).
6. I find and rule that the landlords failure to provide the premises with a functioning heating system on the first day of the tenancy, not having it repaired until the eighth day, and thereafter failing to pay for said repairs, impairs the enjoyment of the premises and I award the tenant three months’ rent in accordance with G.L. c.186, s.14, totaling $2,550 plus reasonable costs and attorneys fees.
7. Previous HitWarranty of HabitabilityNext Hit; conditions of disrepair: The tenant testified about conditions of disrepair and provided photographs for each such condition which included debris
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and old furniture piled in the backyard, a broken basement window, molded and rotting bathroom vanity, two broken windows, and unsafe floor boards and egress off the back porch. The tenant also submitted a Housing Code Inspection Report from the Quabbin Health District (Quabbin) which listed several additional conditions of disrepair totaling some 15 different conditions. That list of violations dated July 12, 2013 was followed by another Quabbin inspection report dated August 15, 2013. Quabbin found, on its follow up inspection one month after citing the landlords, that none of the items had been addressed. None.
8. I find and rule that all of these conditions existed from the inception of the tenancy, that the tenant does not have the burden of proving notice to the landlord. McKenna v. Begin, Mass.App.Ct. 168, 325 N.E.2d 587 (1975). Those conditions had a predictable and negative effect on the tenant’s use and enjoyment of the premises. These conditions of disrepair constitute violations of the minimum standards of fitness for human habitation as set forth in Article II of the State Sanitary Code, 105 C.M.R. 410.00 et seq. These conditions at the premises constitute a defense based upon breach of the implied Previous Hitwarranty of habitabilityNext Hit, for which the landlord is strictly liable. Berman & Sons v. Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979) It is usually impossible to fix damages for breach of the implied warranty with mathematical certainty, and the law does not require absolute certainty, but rather permits the courts to use approximate dollar figures so long as those figures are reasonably grounded in the evidence admitted at trial. Young v. Patukonis, 24 Mass.App.Ct. 907, 506 N.E.2d 1164 (1987). The measure of damages for breach of the implied Previous Hitwarranty of habitabilityNext Hit is the difference between the value of the premises as warranted (up to Code), and the value in their actual condition. Haddad v. Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991).
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9. I find that the fair rental value of the premises was reduced by 15%, on average, as result of these conditions which I find existed from the first day of the tenancy and continue to exist (other than the removal of debris which occurred some time between Quabbin’s follow u 0 inspection on August 15, 2013 and the August 19, 2013 trial date. Damages, therefore, for breach of the Previous Hitwarranty of habitabilityNext Hit in the amount of $1,275 will be awarded the tenant, representing 15% of the rent ($127.50) for ten months.
10. Security Deposit Laws: As discussed above, the tenant provided the landlords $80 for a security deposit at the commencement of the tenancy. Thereafter, there is not evidence t at the landlords handled said funds in accordance with the strict requirements of G.L. c.186, 15B. The landlords did not provide the tenant with a proper receipt nor deposit said funds in a proper account. Accordingly, the tenant is awarded $2,550 plus reasonable costs and attorneys fees.
11. Consumer Protection Act (G.L. c.Previous Hit93ANext Hit): At the inception of the tenancy the landlord was required in accordance with G.L. c.197A to provide information (at a minimum a information sheet promulgated by the state) to the tenant about the hazards of dangerous levels of lead. The landlords failure to do so is a violation of G.L. c.Previous Hit93ANext Hit and I award the tenant $25. Additionally, the landlords failed to reduce to writing the transfer of the obligation of snow removal and grass mowing to the tenant. Such failure is also a violation of G.L. c.Previous Hit93ANext Hit and I award the tenant $25.
12. The tenant alleges that the conditions giving rise to the rent abatements referred to above were willful or knowing violations of the statute, mandating the award of multiple damages. Montanez v. Bagg, 24 Mass.App.Ct. 954, 956 (1987). I rule that double rather than treble damages are appropriate on all of the facts and circumstances present in this case. As
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such, I award the tenant $2,600 (Previous HitWarranty of Habitability damages of $1,250 DOUBLED plus $50 for the two nominal awards noted above plus reasonable costs and attorneys fees.
13. Conclusion and Order: For the above reasons, and pursuant to the requirements of G.L. c. 239, s.8A, an Order shall enter awarding possession to the tenant plus $5,450. [This represents that award of damages awarded the tenant ($7,700) MINUS the award of outstanding rent to the landlords ($2,250)]. The tenant has ten days from the date of this order (below) to file and serve a petition for reasonable attorneys fees and costs. The landlords have ten days after receipt of sad petition to file and serve any opposition thereto. If I am unable to rule on the award of attorneys fees from the papers filed, I’ll schedule a hearing on same. Thereafter, I’ll issue an ruling for entry of judgment.
/s/Robert Fields, Associate Justice
August 23, 2013

 

 

 

Docket No.:No: 13-SP-2340
Parties:DIANNA RANDALL, Plaintiff, V. DEBORAH DELANY and TIMOTHY HALL, Defendants
Judge:/s/Robert Fields, Associate Justice
Date:November 7, 2013Next Hit
Western Division
ORDER
This matter came before the court on August 19, 2013 for trial. The plaintiff (landlord) was represented by counsel and the defendants (tenants) were self-represented. After consideration of the evidence admitted at trial, the following findings, rulings, and order for entry of judgment shall issue:
1. Background: The landlord, Diana Randall, purchased the six-unit property located at 40 State Street in Northampton, Massachusetts in November, 2012. The tenants, Deborah Delaney and Timothy Hall, were already tenants residing in Apt. 1L at remises) at the time that the landlord purchased the building. The monthly rent is $950.
2. The Landlord’s Claim for Rent and Possession: The parties stipulate to the landlord’s prima facie case for possession and for rent and agree to the receipt of the notice to
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quit and that $7,600 is outstanding rent through August, 2013.
3. Breach of Previous HitQuiet EnjoymentNext Hit: Hot Water : On November 6, 2013, the tenants wrote a letter to the landlord and informed her of various conditions of disrepair at the premises
including the following passage: “Additionally, the constantly changing water temperature means Tim and I take showers that cannot maintain the same water temperature for more than 30 seconds. We go from ice cold to scalding hot several times in the course of a shower.”
(emphasis in original) The tenant also explained credibly at trial that she informed the landlord several other times about this problem and that the landlord informed her that she was not going to fix this and other things until the tenants moved out. Such communications, which also described scalding water while washing dishes, also included text messages that were admitted into evidence. The landlord did not repair this problem until February 20, 2013 and only after being cited for same by the Northampton Public Health Department.
4. Landlords are liable for breach of the covenant of Previous Hitquiet enjoymentNext Hit if the natural and probable consequence of their acts or omissions causes a serious interference with the tenancy or substantially impairs the character and value of the premises. G.L. c. 186, s. 14; Simon v. Solomon, 385 Mass. 91, 102, 431 N.E.2d 556, 565 (1982). Although a showing of malicious intent in not required, “there must be a showing of at least negligent conduct by a landlord.”AlZiab v. Mourgis, 424 Mass. 847, 851, 679 N.E.2d 528, 530 (1997). There is no question in this instance that the condition of the fluctuating water temperature, with spiking temperatures that caused scalding to the tenants, and the landlord’s knowing failure to address it for more than three months seriously interfered with the enjoyment of the premises. For the foregoing reasons, the tenants are awarded damages equaling three months’ rent for this claim of breach of quiet
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enjoyment, totaling ($950 X 3) $2,850.
5. Breach of Previous HitQuiet EnjoymentNext Hit: Harassment : The landlord engaged in somewhat of a campaign of harassment in her determination to evict the tenants. Such acts included harassing the tenants about pets even thought the tenants were permitted to do so under their lease arrangement with the former owners and had owned pets for the two years before the landlord purchased the premises. I credit the tenants’ testimony that the landlord wanted to increase their rent an additional $200 because the tenants had pets. Additional acts of harassment included the landlord’s communications about a car parked in the tenants’ parking space. The landlord took the position that the a parking space was not part of the tenancy, even though the original lease the landlord had in her possession made it clear that one was in fact part of the tenancy. On several occasions, the landlord banged on the tenants’ door to harass them. Once, on New Years Eve the landlord yelled that the tenants had to move out that night. On three other occasions, the landlord banged on the tenants’ door to say that they were not allowed to have guests living with them.
6. The case law raises the issue of whether more than one recovery may be had under this statute in a single action. Simon v. Solomon, 385 Mass. 91 (1982). Solomon stands for the proposition that statutory damages for the same category of violations may not be awarded even if the violations continue to recur through the tenancy. Where, however, different prongs of the statute are violated by discreet and separate acts of the landlord, it makes no sense to deny recovery for each wrong. To do otherwise would be to encourage multiplicity of litigation, or else excuse clear violations of the law that are subsequent to an original violation. See, Thompson v. Thomas, Hampden Housing Court Case No. 88-SP-8133 (Abrashkin, J. 1988). In this case, the
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violations of G.L. c.186, s.14 fall into two separate categories-failure to provide a properly functioning plumbing system that didn’t fluctuate water temperature in the manner described above, and the harassing behavior described above. As such, the tenants are entitled to a separate award of $2,850 in accordance with G.L. c.186, §14 on account of the landlord’s acts of harassment that were engaged in to put undue and inappropriate pressure on the tenants to vacate their home.
7. Previous HitRetaliationNext Hit: The tenants complained in writing to the landlord on several occasions about conditions at the premises (including text messages). Within 10 days of receiving a letter from the tenants regarding conditions of disrepair (November 6, 2012 letter), the landlord responded with a Notice to Terminate Tenancy At Will dated November 16, 2013. Reprisal constitutes a defense, G.L. c. 239, s.2A, and counterclaim, G.L. c. 186, s.18, to the landlord’s eviction case. The sequence and timing of events which occurred between the parties gives rise to a presumption that the landlord’s action was in reprisal against the tenants for her protected activities of complaining to her in writing, under G.L. c. 239, s. 2A, which provides in pertinent part as follows: “The commencement of such [summary process] action against a tenant, or the sending of a notice to quit upon which the summary process action based.. .within six months after the tenant has …exercised such rights.. .shall create a rebuttable presumption that such summary process is a reprisal…”
8. The presumption of reprisal may be rebutted only by “clear and convincing” evidence that the landlord 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,” G.L. c. 239, s.2A and G.L. c. 186, s.18, irrespective of the tenants’ protected activities. Here, having sent a letter at the
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commencement of her ownership of the property stating that she was “hopeful that all of the existing tenants will remain with the building”, the landlord sends a termination notice only several weeks later and directly following the tenants’ letter regarding conditions. The landlord has not rebutted the presumption of reprisal, and is therefore liable for between one and three months rent. I am exercising my discretion to award two months rent, or $1,900.
9. Previous HitWarranty of HabitabilityNext Hit: Conditions of Disrepair: The subject premises had conditions of disrepair that were subject of the January 7, 2013 citation form the Health Department. These included the entry hood over the tenant’s outside doorway in need of repair, living room ceiling tiles loose, in danger of failing down, and water stained, and a hole in the plaster in a bedroom. The landlord made repairs to these conditions by February 7, 2013. These conditions violate the minimum standards of fitness for human habitation as established by Article II of the State Sanitary Code, 105 CMR 410.00 et seq. Although it is well settled law that a landlord is strictly liable for breach of the implied Previous Hitwarranty of habitabilityNext Hit irrespective of the landlord’s good faith efforts to repair the defective condition [Berman & Sons, Inc., v Jefferson, 379 Mass. 196 (1979)], these conditions all existed when the landlord purchased the property and knowledge of them starting on November 1, 2012 is imputed.
10. It is usually impossible to fix damages for breach of the implied warranty with mathematical certainty, and the law does not require absolute certainty, but rather permits the courts to use approximate dollar figures so long as those figures are reasonably grounded in the evidence admitted at trial. Young v. Patukonis, 24 Mass.App.Ct. 907, (1987). The measure of damages for breach of the implied Previous Hitwarranty of habitabilityNext Hit is the difference between the value of the premises as warranted, and the value in their actual condition. Haddad v Gonzalez, 410 Mass.
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855 (1991). I find that the average rent abatement of 5% fairly and adequately compensates the tenant for the diminished rental value of the premises resulting from these conditions. The tenants’ actual damages for the landlord’s breach of the Previous Hitwarranty of habitabilityNext Hit are $997.50. This represents the contract rent of $950 X 5% for 21 months.
11. Security Deposit: The tenants paid the former owner of the property $75 towards their security deposit which was established at $900. When the landlord purchased the property, she received the funds and then sent a letter on November 3, 2012 to the tenants regarding the need to pay the remaining $825 for the security deposit. The letter refers to a tax form being attached. The tenants testified that they never received the attached tax form. The landlord put the $75 in a savings account that deducts $5 per month as a fee. The landlord never followed up with the tenants regarding the funds. She didn’t send any more letters asking about the remaining $825 nor inform the tenants of the location of the $75 she was holding. I credit the tenants’ testimony that they never received the tax form from the landlord.
12. Thus, the landlord received the deposit from the former owners and thereafter failed to comply with the law. In accordance with G.L. c.186, §15B(5)( c ), the landlord was obligated “without regard to the nature of the transfer”, to “assume liability for payment of the security deposit to the tenant in accordance with the provision of this section” or credit the amount to the tenant towards rent. What she did was to put it in an account that is reduced each month by $5 without so informing the tenants.
13. The tenants asserted a claim for violation of the security deposit laws in their Answer dated July 1, 2013. The court treats this as a “demand” for the return of the deposit. See, Castenholz v Caira, 21 Mass.App.Ct. 758 (1986). The landlord did not tender payment of $75
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plus any accrued interest at the time of trial. As such, the tenant is hereby awarded three times the security deposit plus interest at a rate of 5%. G.L. c.186, §15B(7). Thus, damages in the amount of $233.73 (this represents three times the deposit ($225) plus interest from the date it was given until the date of trial ($8.73).
14. Remaining Claims: I find in favor of the landlord on the tenants’ claims for cross-metering and for alleged violations of G.L. c.Previous Hit93A.
15. Conclusion and Order: Based on the foregoing, judgment shall enter for the defendant tenants for possession and for $1,231.23 This represents the award of $8,831.23 to the tenants MINUS the award to the landlord for rent, use and occupancy of $7,600.
So entered this 7th day of November, 2013.
/s/Robert Fields, Associate Justice
November 7, 2013

 

 
Docket No.:No: 12-SP-3935
Parties:LORI FISHER (JBN PROPERTIES, LLC), Plaintiff, V. VIRGINIA BAILEY, Defendant
Judge:/s/Robert Fields, Associate Justice
Date:July 19, 2013Next Hit
Western Division
RULINGS ON PETITION FOR ATTORNEY’S FEED AND ORDER FOR ENTRY OF JUDGMENT
The above-captioned matter is before the court on the defendant’s (tenant’s) petition for attorney’s fees. Upon consideration of the parties’ written submissions, I rule as follows:
1. The tenant pursued five counterclaims at trial: breach of the Previous Hitwarranty of habitabilityNext Hit , interference with Previous Hitquiet enjoymentNext Hit in violation of G.L. c. 186, s.14, violation of Chapter Previous Hit93ANext Hit, violation of G.L. c.151B. I ruled in favor of the plaintiff (landlord) on the G.L. c.151B claims and in favor of the tenant on the remaining claims.
2. The tenant now petitions for attorney’s fees, to which she is entitled as the prevailing party under G.L. c. 186, s.14, and G.L. c. Previous Hit93ANext Hit. The landlord opposes the petition on several bases: that it seeks $200 for Law Clerk James Brown’s hourly fee even though he is either in or recently out of law school, because its seeks fees for all of the work performed in regards to this
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matter, including work the claim as to which the tenant did not prevail, and that it seeks fees fir unnecessary work.
3. In ruling on a petition for statutory attorney’s fees, a court “should consider the nature of the case and the issues presented, the time and labor required, the amount of damages involved, the result obtained, the experience, reputation and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases.” Linthicum c. Archambault, 379 Mass. 381, 388 (1979). Time spent on unnecessary work, duplicative work, or claims on which the party did not prevail, should be excluded. Simon v. Solomon, 385 Mass. 91, 113 (1982).
4. Though there isn’t a mandated blueprint for how to petition a court for fees, nor is there one right way to do so, I would suggest a better practice than Attorney Moriarty’s submission would be to include an affidavit attesting to the number of years of practice of law for himself and the two other attorneys who performed work on the case, the rate at which these attorneys routinely charge clients or petitions the courts, and if applicable, mention of prior attorney fee awards at that hourly rate. I would also suggest affidavits from other (disinterest d) attorneys who could attest to the hourly rate and/or knowledge of the petitioning counsel’s practice of law. Though not intended as an exhaustive list of what a solid petition contains, I would suggest that a petition which includes these attributes is far better than simply attaching an itemization of time and work.
5. The petitioner seeks $250 for the work of Attorney Moriarty and Attorney Richard Greenberg and an hourly rate of $200 for his Law Clerk, James Brown. Other than attaching
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copy of the retainer with the defendant, which states this amount for work performed by a “Clerk”, the petition lacks any other supportive documents such as affidavits (as suggested in 11 preceding paragraph). By Clerk, I assume that the petitioner is referring to James Brown, for whom billing records are attached. Mr. Brown is either a current law student or has complete law school and is sitting for-or awaiting results from-the bar exam. An hourly fee of $200 or the “law clerk” is excessive. I have utilized in various attorney fee orders in other matters before the court attorney fee scales promulgated by the Massachusetts Law Reform Institute. In accordance with that scale, $100 is an appropriate fee for a “paralegal” and I find it reasonable for the petitioner to seek $100 per hour for Mr. Brown in this matter.
6. The plaintiff does not oppose the hourly rate of the two attorneys, Moriarty and Greenberg, and the court shall award them at an hourly rate of $250.
7. There is a discrepancy in the attorney fee petition. The invoices add up to $15,719. 8, which is consistent with the “Total Balance” portion of the invoices. The amount being sough in the petition, however, is for $300 more totaling $16, 019.18. By reviewing the invoices I w s able to determine that there was a mistake in adding the invoices and $300 was erroneously added to the April 1, 2013 Invoice #1313 (seeks $500 instead of $200).
8. With the reduction of the Law Clerk’s hourly rate to $100, the fees are reduced by $3,780.42. Additionally, I am reducing the fees by 25% based on the fact that the petitioner prevailed on three of its four claims.
9. Conclusion and Order: Based on the foregoing, and and G.L. c.Previous Hit93A, the petitioners (defendant’s counsel) are hereby consistent with G.L. c.186, s.14
awarded $8,954.09.
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/s/Robert Fields, Associate Justice
July 19, 2013