Home » LAW » Housing Court Judge DIANA HORAN, cases from 2013 to mid-2014

Housing Court Judge DIANA HORAN, cases from 2013 to mid-2014

Docket No.:No.12-SP-004774

Parties:Robert R. Benjamin Plaintiff V. Lydie-Flore Z. Jones Defendant

Judge:/s/ Diana H. Horan

Date:January 11, 2013
Worcester Division

FINDINGS, RULINGS AND ORDER

FINDINGS OF FACT

1.The plaintiff, Robert R. Benjamin, is the property manager for Quarry Development, LLC, the owner of 48 Grove Street, Millville, MA.

2.The defendant, Lydie-Flore Z. Jones, rents this single family house pursuant to a Lease Agreement first entered into on January 19, 2011. The monthly rent is $1,600.00.

3.The Lease Agreement provides that a portion of the defendant’s rent is paid by RCAP Solutions, Inc. The defendant’s portion is $610.00 and she has not paid this for the months of October, November and December, 2012.

4.The defendant is a minority and receives rental, assistance.

5.The defendant is disabled.

6.The plaintiff manages more than one rental property.

7.The defendant received a valid 14 day Notice to Quit on October 15, 2012.

8.The defendant alleged several defenses and counterclaims; retaliation, discrimination, security deposit violations , interference with quiet enjoyment and breach of the implied warranty of habitability.

 

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9.No credible evidence was presented to support a finding of retaliation.

10.This summary process action was brought to address the non-payment of rent.

11.No credible evidence was presented to support a finding of discrimination, either racial or handicap.

12.No credible evidence was presented to support a finding that a security deposit or last month rent was received by the plaintiff.

13.On January 19, 2011, the defendant signed a Residential Lease Inspection Checklist in which she stated the all conditions were satisfactory.

14.In August 2011, Hurricane Irene caused significant damage to the roof and required the defendant to remain in the first floor living space until it was repaired in December 2011. This was an Act of God that required many property owners to process their claims with their insurance companies , all at the same time. A blue tarp was placed over the roof and no leaking occurred after the initial storm.

15.The Board of Health were contacted by the defendant after she was in rental arrears.

16.On October 22,2012 the Board of Health found that there was a defective refrigerator, oil tank seepage, door not weathertight sealed by plastic, missing smoke detectors , and several extension cords used for space heaters as the defendant had failed to have the oil tank filled.

17.The Board of Health referred the matter to the Fire Department.

18.The Court finds that this was the first the plaintiff was notified of any defective conditions.

19.The Fire Department, and the plaintiff, treated the matter as an emergency and entered the defendant’s home for the sole purpose of inspecting the oil tank, the extension cords and the smoke detectors.

20.The Fire Department issued a letter dated November 13, 2012 which stated that all smoke and carbon monoxide detectors were in place and that the oil tank is in proper working order.

21.The defendant filed a Request for Injunctive Relief (12-CV- 1032) concerning the entry to her home and the oil tank. On November 29, 2012 ,the Request was denied after a hearing attended by all parties.

 

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22.The remaining violations cited in the October 22, 2012 order were repaired before trial.

RULINGS OF LAW

Implied Warranty of Habitability

Under the implied warranty of habitability, the landlord assures that the premises meet certain standards under State Sanitary Codes. 105 CMR 410, 780 CMR 1 et seq. The landlord is liable for code violations and breach of warranties. If, however, the landlord contends that the breach was caused through the fault of the tenant, and not the landlord, the landlord bears the burden to prove that the tenant did indeed cause that breach. A tenant is entitled to damages equivalent to the value of the premises if up to Code minus their value in their actual, defective condition.

Haddad v. Gonzales, 410 Mass. 855, 576 N.E.2d 658 (1991). It is usually impossible to fix warranty damages with mathematical certainty; the case law permits the courts to use approximate dollar figure so long as those figures are reasonably grounded in the evidence presented at trial. Young v. Patukonis, 24 Mass. App. Ct. 907, 506 N.E.2d 1164 (1987).

Implied Warranty of Habitability (subsidized)

By way of damages for breach of the implied warranty of habitability, it is settled law that in Section 8 tenancies, damages are to be calculated on the basis of the contract rent, rather than the tenant’s share. Cruz Management Company v. Thomas, 417 Mass. 782, 633 N.E.2d 390 (1994); Cruz Managment Company v. Wideman, 417 Mass. 771, 633 N.E.2d 384 (1994). A tenant is

entitled to damages equivalent to the value of the premises if up to Code minus their value in their actual, defective condition. Haddad v. Gonzales, 410 Mass. 855, 576 N.E.2d 658 (1991). It

is usually impossible to fix warranty damages with mathematical certainty; the case law permits the courts to use approximate dollar figure so long as those figures are reasonably grounded in

the evidence presented at trial. Young v. Patukonis, 24 Mass. App. Ct. 907, 506 N.E.2d 1164 (1987).

Quiet Enjoyment

A tenant is entitled to the enjoyment of his or her property for the life of the tenancy, without interference. Simon v. Solomon, 385 Mass. 91, 431 N.E.2d 556, 569 (1982). In order for the said breach to meet the high standard required for a breach of quiet enjoyment, the parties must show that the breach was sufficiently serious and/or prolonged to meet the statutory threshold. Leardi v. Brown, 394 Mass. 151, 474 N.E.2d 1094 (1985). A finding of at least negligent conduct is a prerequisite for a finding of a statutory violation. McAllister v. Boston Housing Authority, 429 Mass. 300, 708 N.E.2d 95 (1999).

 

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Setoff and M.G. L. 239 sec. 8A

A summary process action brought pursuant to a notice to quit for non-payment of rent, or where the tenancy has been terminated without fault of the tenant or occupant, the tenant or occupant

shall be entitled to raise, by defense or counterclaim, any claim relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material

provision of the rental agreement, or for a violation of any other law. The counterclaims are available to offset rent owed, except for counterclaims relating to conditions of the premises. In

order for the setoff provision to be available, the following requirements are necessary: (1) the landlord knew of the conditions prior to the tenant falling into rental arrears; (2) plaintiff does not show that the tenant’s, or someone in their control, caused the condition; (3) the premises are not in a hotel, motel or lodging house where the tenant has resided for less than three consecutive

months; and (4) the plaintiff does not show that the conditions cannot be corrected without vacating the premises.

93A

A landlord is liable to the tenant for damages if the landlord is in the trade or business of renting residential property and has engaged in unfair and deceptive acts or practices. If the above violations were knowing and/ or willful, the court must, without discretion, award multiple actual damages as well as attorney’s fees. Montanez v. Bagg, 24 Mass. App. Ct. 954, 510 N.E.2d 298, (1987)

CONCLUSION

The conditions found by the Board of Health are a breach of the implied warranty of habitability. These violations entitle the defendant to an abatement of the rent of 20% for the months of October, November and December 2012. ( $960.00=20% of 1600=320X 3 months). She is not entitled to judgment for possession however , as the plaintiff did not know of the violations until after the arrearage of rent. The Court specifically finds no violation of c. 93A as the violations were not wilful or knowing

Judgment for the plaintiff for possession and rent of $870.00 (1830-960) through December 2012, plus costs.

/s/ Diana H. Horan

First Justice

January 11, 2013

 

 
Docket No.:No. 06-SP-2650

Parties:Lorie Spaulding, Plaintiff V. Brandy Lajoie, Defendant

Judge:/s/ Diana H. Horan

Date:March 1, 2013

WORCESTER DIVISION

RULING ON DEFENDANT’S MOTION TO RECALL THE CAPIAS, REMOVE THE DEFAULT AND AMEND THE JUDGMENT AND FIND THAT LORIE SPAULDING IS ATTEMPTING TO COLLECT A DEBT IN VIOLATION OF M.G.L.c. 93 and 93A AND IN VIOLATION OF A PRELIMINARY INJUNCTION ISSUED BY THIS COURT ON FEBRUARY 2, 2007

 

FOR THE REASONS STATED BELOW THE DEFENDANT’S MOTIONS ARE ALLOWED.

 

FACTUAL HISTORY SPECIFIC TO THIS CASE

1. On August 29, 2006, a Summary Process case was initiated by Nasir Khan, as landlord/property owner against Brandy Lajoie, a tenant at 71 Tremont Street Athol MA, for rent owed. See Ex. 1 Docket Sheet

 

2. On September 19, 2006, Ms. Lajoie failed to appear and a default judgment was entered in favor of Mr. Khan for possession and rent/costs owed of $3,387.22 in accordance with M.G.L. c. 239 and Uniform Summary Process Rule 10.

 

3. On October 2, 2006, an Execution issued to Mr. Khan for possession and $3,387.22.

 

4. On January 6, 2010, Mr. Khan requested that the Court schedule a Payment Hearing to collect on the money portion of the judgment. In addition he filed a Motion to Substitute Parties, requesting that Lorie Spaulding be substituted in his place as she had purchased the debt from

 

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him for a substantially discounted rate. ($846.80)

 

5. On January 11, 2010, the Clerk’s Office scheduled the Payment Hearing and the Motion to Substitute for February 16, 2010. Notice of the date was mailed to both parties.

 

6. These events were continued at least once due to returned mail or insufficient service of the notices on Ms. Lajoie.

 

7. On May 18, 2010, the Motion to Substitute was allowed but no action was taken on the Payment Hearing, due again to insufficient notice to Ms. Lajoie.

 

8. On September 21, 2010 a CAPIAS issued for Ms. Lajoie as she failed to appear for the Payment Hearing.

 

9. On September 28, 2011, a renewed CAPIAS issued for Ms. Lajoie.

 

10. On October 1, 2012, Ms Spaulding requested another Payment Hearing, which was then scheduled for November 20, 2012.

 

11. Ms. Lajoie failed to appear and a CAPIAS issued once again.

 

12. On January 28, 2013 , Ms. Lajoie filed the first of several motions to address her claims. The outstanding CAPIAS was recalled by the Court.

 

13. On February 12, 2013, a hearing was held on the present motions, both parties present and Ms. Lajoie having benefit of legal counsel.

 

14. At the conclusion of the hearing the Court granted Ms. Spaulding 30 days to seek legal advise and provide a written opposition to the motions if she wished . This response was received on February 26, 2013.

 

FACTUAL HISTORY SPECIFIC TO LORIE SPAULDING

 

1. Lorie Spaulding, dba LAS Management or LAS Collection Management, conducts a substantial amount of business (estimated well over 100 cases with this Court), in multiple capacities. i.e. landlord, property manager, constable, debtor. She routinely purchases debts from landlords and then proceeds to attempt to collect these debts.

 

2. Prior to December 11, 2006, when the SJC issued its Ruling in LAS COLLECTION MANAGEMENT v. PAGAN, 447 Mass. 847, unauthorized practice of law, (hereinafter “PAGAN”), Ms. Spaulding acted as a Property Manager for many landlords in the Fitchburg/ Gardner area and initiated legal actions on their behalf in her capacity as agent for the landlords.

 

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3. After December 11, 2006, Ms. Spaulding has continued to act as Property Manager, but has changed her practices to avoid conflicts with the Ruling in Pagan, by either filing the cases in her own name ( not as agent for) or, as in this case, by purchasing the debt at a discounted amount and then attempting to collect the debt in her own name.

 

4. On January 12, 2007, LAS Collection Management sent a letter to Katrina Villot, a disabled individual, in an attempt to collect a debt owed to Mark Rivers, Ms. Villot’s former landlord. The letter said in part that Ms. Villot was in contempt of court, per John G. Martin, First Justice, Worcester County Division, Housing Court and that the next step would be arrest and possible incarceration. These statements were neither factually correct nor supported by the Court’s docket. See Ex #2 January 12, 2007 Letter

 

5. On January 22, 2007, this Court granted Ms. Villot’s request for injunctive relief, specifically that Lorie Spaulding and LAS Collection Management, cease and desist from attempting to collect the debt of this disabled person and cease and desist from harassing or intimidating Ms. Villot. See Ex. #3 January 22, 2007 Injunction

 

6. On February 2, 2007 a further hearing was held at which time Ms. Spaulding acted in such a manner that a Court Officer was assaulted. Criminal charges were filed in the District Court against Ms. Spaulding for disrupting a court proceeding.

 

7. Further on February 2, 2007, this Court issued a second Preliminary Injunction. The relevant portion of that Injunction reads:” Defendants Spaulding, LAS Collections and Rivers to cease and desist all collection activity of every kind and against every debtor until fully licensed pursuant to all applicable laws and regulations.”See Ex. #4 February 2, 2007 Injunction

 

8. That provision of the Preliminary Injunction has never been complied with and Ms. Spaulding has continued to attempt to collect debts through this Court.

 

9. At all times relevant to this matter, Ms. Spaulding has held herself out as Doing Business As LAS Collection Management, LAS Property Management, or Lorie Spaulding individually.

 

10 Both the Yellow Pages Online Directory( updated in 2012) and a google search conducted by Ms. Lajoie’s counsel, show that Ms. Spaulding continues to hold herself out as LAS Collection Management. Furthermore the Chamber of Commerce website for Fitchburg, lists LAS Collection Management as a collection agency. The entry was last updated on December 12, 2012.See Ex#5 Yellow Pages and Chamber of Commerce Documents

 

11. Lorie Spaulding shares the same business address as LAS Collection Management, 100 Jackson Avenue, Fitchburg, MA.

 

 

12. Lorie Spaulding , and/or LAS Collection Management, does not have a license to conduct business as a Debt Collector.

 

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13. This Court has been made aware on a regular basis of intimidating and harassing techniques used by Ms. Spaulding when conducting her business. These include complaints of abusive language, contact with employers, attempts to intimidate recipients of public assistance and threats of future legal action where no authority for such exists.

 

14. This is the first time however, since February 2007, the Court has been asked by a litigant to formally rule on the legality of Ms. Spaulding’s practices.

 

RULINGS

 

1. Lorie Spaulding, and/or LAS Collection Management, continues to buy and collect and/or attempt to collect debts in violation of the Preliminary Injunction issued by this Court on February 2, 2007. That Injunction remains in full force and effect.

 

2. Lorie Spaulding, and/or LAS Collection Management, is in violation of M.G.L.c. 93 and 93A, as well as 940 CMR 7.00 et seq. by conducting debt collecting activities without a license and contrary to the rules set out thereunder. See further Pilalas v. The Cadle Company et.al . 695 F.3d 12 ( 2012) and Office of the Commissioner of Banks Opinion Letter dated October 13, 2006 in which it opines that ” debt buyers must be licensed as debt collectors.” See Ex. #6

 

3. Ms Lajoie is entitled to Relief from Judgment ,Dismissal of the Case, and a reasonable Attorney’s Fee pursuant to M.G.L.c. 93A, upon the submission of an affidavit by counsel and a hearing on the reasonableness of the fee.

 

4. The Clerks Office is hereby ordered to cease from accepting or processing any requests from Ms. Spaulding, LAS Management or LAS Collection Management, for any payment hearings, contempt hearings, supplementary process, or any other attempt to collect a debt, including any existing or future payment hearings until such time as the Preliminary Injunction is lifted and Ms. Spaulding presents as a lawfully licensed debt collector.

 

EXTRAORDINARY ACTION

 

During the course of the hearing, while under oath, Ms. Spaulding gave contradictory testimony about whether or not she is conducting business as a constable within Massachusetts. At first she stated she would not answer because it may incriminate her, she then answered yes she was a constable and then no she was not a constable. Further, she testified under oath, that she was not aware of the 2007 Injunction. She then subsequently contradicted that testimony. The Court is seriously concerned as to whether Ms. Spaulding committed perjury in this proceeding.

 

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Therefore, the Clerk’s Office is instructed to forward a copy of this decision to District Attorney Joseph Early for consideration of this issue as well as any criminal violations regarding Ms. Spaulding’s debt collection practices.

 

SO ORDERED

 

/s/ Diana H. Horan

First Justice

March 1, 2013

 

 

 

 

 

Docket No.:No. 06-SP-2650

Parties:Lorie Spaulding, Plaintiff V. Brandy Lajoie, Defendant

Judge:/s/ Diana H. Horan

Date:March 1, 2013

WORCESTER DIVISION

RULING ON DEFENDANT’S MOTION TO RECALL THE CAPIAS, REMOVE THE DEFAULT AND AMEND THE JUDGMENT AND FIND THAT LORIE SPAULDING IS ATTEMPTING TO COLLECT A DEBT IN VIOLATION OF M.G.L.c. 93 and 93A AND IN VIOLATION OF A PRELIMINARY INJUNCTION ISSUED BY THIS COURT ON FEBRUARY 2, 2007

 

FOR THE REASONS STATED BELOW THE DEFENDANT’S MOTIONS ARE ALLOWED.

 

FACTUAL HISTORY SPECIFIC TO THIS CASE

 

1. On August 29, 2006, a Summary Process case was initiated by Nasir Khan, as landlord/property owner against Brandy Lajoie, a tenant at 71 Tremont Street Athol MA, for rent owed. See Ex. 1 Docket Sheet

 

2. On September 19, 2006, Ms. Lajoie failed to appear and a default judgment was entered in favor of Mr. Khan for possession and rent/costs owed of $3,387.22 in accordance with M.G.L. c. 239 and Uniform Summary Process Rule 10.

 

3. On October 2, 2006, an Execution issued to Mr. Khan for possession and $3,387.22.

 

4. On January 6, 2010, Mr. Khan requested that the Court schedule a Payment Hearing to collect on the money portion of the judgment. In addition he filed a Motion to Substitute Parties, requesting that Lorie Spaulding be substituted in his place as she had purchased the debt from

 

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him for a substantially discounted rate. ($846.80)

 

5. On January 11, 2010, the Clerk’s Office scheduled the Payment Hearing and the Motion to Substitute for February 16, 2010. Notice of the date was mailed to both parties.

 

6. These events were continued at least once due to returned mail or insufficient service of the notices on Ms. Lajoie.

 

7. On May 18, 2010, the Motion to Substitute was allowed but no action was taken on the Payment Hearing, due again to insufficient notice to Ms. Lajoie.

 

8. On September 21, 2010 a CAPIAS issued for Ms. Lajoie as she failed to appear for the Payment Hearing.

 

9. On September 28, 2011, a renewed CAPIAS issued for Ms. Lajoie.

 

10. On October 1, 2012, Ms Spaulding requested another Payment Hearing, which was then scheduled for November 20, 2012.

 

11. Ms. Lajoie failed to appear and a CAPIAS issued once again.

 

12. On January 28, 2013 , Ms. Lajoie filed the first of several motions to address her claims. The outstanding CAPIAS was recalled by the Court.

 

13. On February 12, 2013, a hearing was held on the present motions, both parties present and Ms. Lajoie having benefit of legal counsel.

 

14. At the conclusion of the hearing the Court granted Ms. Spaulding 30 days to seek legal advise and provide a written opposition to the motions if she wished . This response was received on February 26, 2013.

 

FACTUAL HISTORY SPECIFIC TO LORIE SPAULDING

 

1. Lorie Spaulding, dba LAS Management or LAS Collection Management, conducts a substantial amount of business (estimated well over 100 cases with this Court), in multiple capacities. i.e. landlord, property manager, constable, debtor. She routinely purchases debts from landlords and then proceeds to attempt to collect these debts.

 

2. Prior to December 11, 2006, when the SJC issued its Ruling in LAS COLLECTION MANAGEMENT v. PAGAN, 447 Mass. 847, unauthorized practice of law, (hereinafter “PAGAN”), Ms. Spaulding acted as a Property Manager for many landlords in the Fitchburg/ Gardner area and initiated legal actions on their behalf in her capacity as agent for the landlords.

 

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3. After December 11, 2006, Ms. Spaulding has continued to act as Property Manager, but has changed her practices to avoid conflicts with the Ruling in Pagan, by either filing the cases in her own name ( not as agent for) or, as in this case, by purchasing the debt at a discounted amount and then attempting to collect the debt in her own name.

 

4. On January 12, 2007, LAS Collection Management sent a letter to Katrina Villot, a disabled individual, in an attempt to collect a debt owed to Mark Rivers, Ms. Villot’s former landlord. The letter said in part that Ms. Villot was in contempt of court, per John G. Martin, First Justice, Worcester County Division, Housing Court and that the next step would be arrest and possible incarceration. These statements were neither factually correct nor supported by the Court’s docket. See Ex #2 January 12, 2007 Letter

 

5. On January 22, 2007, this Court granted Ms. Villot’s request for injunctive relief, specifically that Lorie Spaulding and LAS Collection Management, cease and desist from attempting to collect the debt of this disabled person and cease and desist from harassing or intimidating Ms. Villot. See Ex. #3 January 22, 2007 Injunction

 

6. On February 2, 2007 a further hearing was held at which time Ms. Spaulding acted in such a manner that a Court Officer was assaulted. Criminal charges were filed in the District Court against Ms. Spaulding for disrupting a court proceeding.

 

7. Further on February 2, 2007, this Court issued a second Preliminary Injunction. The relevant portion of that Injunction reads:” Defendants Spaulding, LAS Collections and Rivers to cease and desist all collection activity of every kind and against every debtor until fully licensed pursuant to all applicable laws and regulations.”See Ex. #4 February 2, 2007 Injunction

 

8. That provision of the Preliminary Injunction has never been complied with and Ms. Spaulding has continued to attempt to collect debts through this Court.

9. At all times relevant to this matter, Ms. Spaulding has held herself out as Doing Business As LAS Collection Management, LAS Property Management, or Lorie Spaulding individually.

 

10 Both the Yellow Pages Online Directory( updated in 2012) and a google search conducted by Ms. Lajoie’s counsel, show that Ms. Spaulding continues to hold herself out as LAS Collection Management. Furthermore the Chamber of Commerce website for Fitchburg, lists LAS Collection Management as a collection agency. The entry was last updated on December 12, 2012.See Ex#5 Yellow Pages and Chamber of Commerce Documents

 

11. Lorie Spaulding shares the same business address as LAS Collection Management, 100 Jackson Avenue, Fitchburg, MA.

 

12. Lorie Spaulding , and/or LAS Collection Management, does not have a license to conduct business as a Debt Collector.

 

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13. This Court has been made aware on a regular basis of intimidating and harassing techniques used by Ms. Spaulding when conducting her business. These include complaints of abusive language, contact with employers, attempts to intimidate recipients of public assistance and threats of future legal action where no authority for such exists.

 

14. This is the first time however, since February 2007, the Court has been asked by a litigant to formally rule on the legality of Ms. Spaulding’s practices.

 

RULINGS

 

1. Lorie Spaulding, and/or LAS Collection Management, continues to buy and collect and/or attempt to collect debts in violation of the Preliminary Injunction issued by this Court on February 2, 2007. That Injunction remains in full force and effect.

 

2. Lorie Spaulding, and/or LAS Collection Management, is in violation of M.G.L.c. 93 and 93A, as well as 940 CMR 7.00 et seq. by conducting debt collecting activities without a license and contrary to the rules set out thereunder. See further Pilalas v. The Cadle Company et.al . 695 F.3d 12 ( 2012) and Office of the Commissioner of Banks Opinion Letter dated October 13, 2006 in which it opines that ” debt buyers must be licensed as debt collectors.” See Ex. #6

 

3. Ms Lajoie is entitled to Relief from Judgment ,Dismissal of the Case, and a reasonable Attorney’s Fee pursuant to M.G.L.c. 93A, upon the submission of an affidavit by counsel and a hearing on the reasonableness of the fee.

 

4. The Clerks Office is hereby ordered to cease from accepting or processing any requests from Ms. Spaulding, LAS Management or LAS Collection Management, for any payment hearings, contempt hearings, supplementary process, or any other attempt to collect a debt, including any existing or future payment hearings until such time as the Preliminary Injunction is lifted and Ms. Spaulding presents as a lawfully licensed debt collector.

 

EXTRAORDINARY ACTION

 

During the course of the hearing, while under oath, Ms. Spaulding gave contradictory testimony about whether or not she is conducting business as a constable within Massachusetts. At first she stated she would not answer because it may incriminate her, she then answered yes she was a constable and then no she was not a constable. Further, she testified under oath, that she was not aware of the 2007 Injunction. She then subsequently contradicted that testimony. The Court is seriously concerned as to whether Ms. Spaulding committed perjury in this proceeding.

 

 

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Therefore, the Clerk’s Office is instructed to forward a copy of this decision to District Attorney Joseph Early for consideration of this issue as well as any criminal violations regarding Ms. Spaulding’s debt collection practices.

 

/s/ Diana H. Horan

First Justice

March 1, 2013

 

 

 

 
Docket No.:No.11-SP-04814

Parties:NGOC PHAM Plaintiff v. MARTHA TRINIDAD Defendant /Plaintiff in counterclaim V. NGOC PHAM, NGOC TRAN AND XE TRAN, Defendants in counterclaim

Judge:/s/ Diana H. Horan, First Justice

Date:May 20, 2013

Worcester Division

FINDINGS, RULINGS AND ORDER PROCEDURAL HISTORY

 

1. On or about November 8, 2011, the Plaintiff served the Defendant with a 14 Day Notice to Quit for Nonpayment of Rent

 

2. On December 5, 2011, the Plaintiff served the Defendant with a Summons and Complaint for eviction. The Plaintiff claims non-payment of rent for the months of September 2011 through February 2012 for a total of $ 5,700.00.

 

3. On December 19, 2011, Defendant filed an Answer with defenses and counterclaims including:

a. Lawful withholding of rent

b. Breach of implied warranty of habitability

 

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c. Breach of quiet enjoyment

d. Retaliation

e. Violation of consumer protection law

f. Violation of security deposit law

 

4. On January 23, 2013, Ngoc Pham and Xe Tran were added as parties to the action, specifically as defendants to Ms. Trinidad’s counterclaims.

 

5. In mid January 2012, Defendant Martha Trinidad moved out of the subject premises.

 

6. At the time of trial, the issue of legal possession of the apartment unit was not at issue. The sole issues for the court were the Plaintiffs claim for rent and the Defendant’s counterclaims.

 

PROPOSED FINDINGS OF FACT

 

7. On or about January 2009, Ngoc Pham and Xe Tran purchased the subject premises at 11 Preston Street #1, Worcester, MA 01610 (hereinafter “subject premises”).

 

8.The property is an apartment building consisting of three (3) separate living units, commonly referred to as a triple decker.

 

9.Ngoc “Johnny” Tran (hereinafter “Property Manager”) is the property manager of the subject premises, and at all times relevant was operating as an agent of the owners. Ngoc Pham, Xe Tran and Ngoc Tran will be collectively referred to as the “Landlords”.

10. On or about March 15, 2009, Defendant, Martha Trinidad (hereinafter “Tenant”) and her five (5) children moved into the first floor apartment at 11 Preston Street.

 

11.Soon after moving in, Tenant’s eldest son joined the military and moved out of the subject premises.

 

12.Tenant’s children who remained with her at the subject premises at that time were ages three

 

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(3), six (6), twelve (12) and fourteen (14).

 

13. When she moved in, the Tenant paid a $1,000 security deposit in cash to the Landlord. (Defense Exhibit A)

 

14. The Landlords did not give Tenant a receipt indicating the bank account where the deposit was being held, nor did they give her a statement of condition.

 

15. The Landlords did not place the security deposit in a separate bank account inaccessible to their creditors within thirty days of receiving the security deposit on March 15, 2009.

 

16. The Landlords did not pay the Tenant any portion of the interest earned by the security deposit.

 

17. The Landlords never returned the security deposit after the Tenant vacated the subject premises, nor did Tenant receive any written communication as to why the deposit was not returned.

 

18. At the beginning of the tenancy, the Tenant’s rent was $1,000 a month, due on the first of the month.

 

19. In February 2010, the Tenant’s rent went down to $900. (Defense Exhibit B)

 

20. In May 2010, the Tenant’s rent went up to $950, and remained at $950 for the remainder of the tenancy. (Defense Exhibit B)

 

21. The Tenant always paid her rent in cash.

 

22. Every month the Property Manager, Ngoc “Johnny” Tran, came to the Tenant’s apartment to collect her rent.

 

23. Tenant paid rent for every month from March 2009 through September 2011.

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Defective Conditions at the Apartment

 

Infestation of Cockroaches and Rodents

 

24. When Ms. Trinidad moved into the property, there was a smell of urine that was believed to come from an insect or rodent infestation.

 

25. Soon after moving into the subject premises the Tenant began noticing mice running in the kitchen. She also started to notice cockroaches in the kitchen cabinets about six weeks after she moved in.

 

26. Shortly thereafter, she began to notify the Property Manager.

 

27. The Tenant would tell the Property Manager about the infestation and the other poor conditions every month when he would come to the subject premises to collect rent.

 

28. The mice and cockroaches infested the entire apartment.

 

29. The mice and cockroaches were present throughout the tenancy; the infestation became worse over time. The mice and cockroach infestation was at its worst during the months of August 2011 through October 2011.

 

30. In the bedrooms, the mice and cockroaches would get into the dresser drawers and closets in every bedroom, leaving behind cockroach eggs and mice feces.

 

31. The infestation of mice and cockroaches in the kitchen was severe. The mice and cockroaches infiltrated the Tenant’s cabinets. The mice and cockroaches destroyed the boxes and contents of cereal, crackers, croutons and soup packets. They also ate and infiltrated food that had been cooked by the Tenant. The cockroaches managed to get inside the Tenant’s refrigerator and her freezer. (Defense Exhibit D)

 

32. The Tenant could not store food in her home. Instead she kept food in her car. Much of this food spoiled and had to be thrown away.

 

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33. The cockroaches crawled inside the appliances, including the coffee maker, TV and microwave. Mice ate the wires in the TV and microwave-making them inoperable.

 

34. Seven videos that had been taken of her children’s birthday parties were ruined by mice and cockroach excrement.

 

35. The Tenant found cockroaches buried in the wooden frame of a print that was hung on the wall. (See photographs of the cockroach and mice infestation Defense Exhibit D).

 

36. The Tenant notified the Property Manager a couple of times a month of the cockroach and mice infestation problem. She did this by calling him and complaining of the problems. She also did this every month when the Property Manager came to the subject premises to collect the rent. At this time, the Tenant would show the Property Manager the cockroach and mice infestation.

 

37. The Property Manager’s testimony that none of his tenants ever complained to him about the problems with cockroaches and mice infestation is not credible because on August 1, 2012 the Department of Inspectional Services Housing/Health Inspections of the City of Worcester (hereinafter “Department of Inspectional Services”) issued an inspection report for 11 Preston Street Unit 2 citing an active infestation of bedbugs, an active infestation of rodents and a heavy infestation of cockroaches. (Defense Exhibit G)

 

38. The Landlords failed to make any effort to exterminate the subject premises, despite having knowledge of the conditions and infestation.

39. The Tenant cleaned her apartment daily with various cleaning products including bleach, ammonia, Mr. Clean and laundry detergent but this did little to remedy the infestation.

 

40. The Tenant also purchased “blue things” at Family Dollar hoping that this would kill some of the cockroaches and mice, but it did not resolve the infestation problem.

 

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41. Ms. Trinidad has suffered as a result of living with the cockroach and mice infestation for over two and a half (2 1/2) years (the length of her tenancy). The cockroach and mice infestation was severe during the months of August 2011 through October 2011. The severe infestation of mice and cockroaches which made living in her home unbearable caused her to experience depression, stress, frustration and embarrassment.

 

42. Ms. Trinidad has suffered financial loss because she had to throw away large amounts of food, clothing and furniture which had been infested with mice and cockroaches.

 

43. After he made no effort to take care of the cockroach and mice problem, the Tenant started to withhold her rent in October.

 

44. In October of 2011, Ms. Trinidad called the Department of Inspectional Services to conduct an inspection of her apartment. On October 19, 2011, the Department of Inspectional Services conducted an inspection of 11 Preston Street, Worcester, MA 01610 and found numerous sanitary code violations.

 

45. On October 26, 2011, the Department of Inspectional Services issued three (3) separate reports in which they cited several violations of the state sanitary code that were the responsibility of the Landlords and ordered the Landlords to correct the violations. (Defense Exhibit C)

 

46. The Department of Inspectional Services did not find the Tenant to be responsible for any of the conditions. (Defense Exhibit C)

47. The Constable delivered all three (3) of the inspection reports at the home of the owners, Ngoc Pham and Xe Tran on October 28, 2011 and sent a copy by regular mail on the next day. (Defense Exhibit C)

 

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48. In one of its three reports issued on October 26, 2011, the Department of Inspectional Services ordered the Landlords to make the following corrections within 72 hours:

 

There is a severe infestation of cockroaches. The entire structure must be professionally exterminated and all points of entry sealed. A copy of the extermination report must be provided to the inspector. (105 C.M.R. 410.550) There is a severe infestation of rodents. The entire structure must be professionally exterminated and all points of entry sealed. In addition to extermination the copy of the exterminator’s report must be provided to the inspector. (105 C.M.R. 410.550)

 

49. The Landlords did not have the premises exterminated within 72 hours as ordered in the Board of Health Inspection Report. Thus, the Landlords did not have the premises exterminated in a timely manner.

50. The Property Manager testified during the trial that he remedied all the conditions and infestation in the subject premises in a timely manner. However, his testimony is not credible because on January 9, 2012, the City of Worcester through its Department of Inspectional Services filed a Complaint and a Request for Injunctive Relief against the Landlords based on the three (3) inspection reports issued on October 26, 2011 and the Landlords failure to comply with the orders to correct the violations cited in the reports. (Civil Action 12H85CV035; Defense Exhibit E)

 

51. On or about December 21, 2011, the Landlords had the subject premises exterminated for mice and cockroaches.

 

52. The Tenant moved out of the property in January 2012, and moved into an apartment in the subsidized housing complex at Great Brook Valley.

 

53. When she moved to her new apartment, Martha Trinidad had to throw most of her personal belongings away including clothing and furniture because most of these items were infested with mice and cockroaches.

 

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Broken Windows

 

54. Since the inception of the tenancy, one of the windows of Ms. Trinidad’s bedroom was cracked, and over time the window completely broke leaving a large whole with jagged sharp broken pieces of glass.

55. This broken window was a safety concern for Tenant as she occupied the first floor apartment, and she was concerned someone could easily break into her apartment.

 

56. In addition, the broken bedroom window was a concern because cold air from the outside caused the Tenant’s apartment to be cold.

 

57. Additionally, a basement window next to a door was broken. There were also broken shattered pieces of glass on the ground near this window.

 

58. Ms. Trinidad was also concerned that the broken glass on the ground was a safety hazard for her young children, and she would not let her children play outside.

 

59. Neither the Tenant nor her children caused the window to break.

 

60. She notified the Property Manager about the broken windows by phone and every month when he would come to the apartment to collect the rent.

 

61. The Landlords never removed the glass or fixed the broken windows.

 

62. In one of its three reports issued on October 26, 2011, the Department of Inspectional Services Housing/Health Inspections of the City of Worcester ordered the Landlord to make the following corrections within 24 hours:

 

Front main entry to the building contains a window with broken glass. Window must be repaired or replaced. 105 C.M.R. s. 410.500.

 

63. The Landlords failed to address this problem.

 

64. On January 9, 2012, the City of Worcester through its Department of Inspectional Services filed a Complaint and a Request for Injunctive Relief against the Landlords based on the three (3)

 

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inspection reports issued on October 26, 2011. (Civil Action 12H85CV035; Defense Exhibit E)

 

Water Leakage

 

65. The kitchen ceiling was damp and discolored since the inception of the tenancy.

 

66. The Tenant notified the Property Manager of the leaks in the ceiling by showing him when he came to her apartment to collect rent.

 

67. He said he would fix the problem but he did not.

 

68. In the fall of 2011, water began leaking from the kitchen ceiling.

 

69. Yellowish filthy water from the second floor apartment dripped into Tenant’s apartment discoloring the ceilings.

 

70. The dripping water smelled of sewage.

 

71. The Tenant put a bowl near the ceiling to catch the water that was falling.

 

72. The Tenant notified the Landlords of this problem.

 

73. In the fall of 2011, the ceiling tile in the kitchen fell down along with dirty smelling water. The kitchen ceiling fell on top of the cabinets and on top of Tenant’s dishes.

 

74. As a result, Tenant had to throw away many of her dishes.

 

75. At this time, the Property Manager came and fixed the kitchen ceiling after it had fallen down.

 

76. The paint and plaster from the ceilings in the other rooms was also loose and falling down. (Defense Exhibit C)

 

77. In one of its three reports issued on October 26, 2011, the Department of Inspectional Services Housing/Health Inspections of the City of Worcester ordered the Landlord to make the following corrections within 30 days:

 

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Pantry ceiling displays signs of chronic dampness. The source of the dampness must be identified, eliminated, and repaired in a proper workmanlike manner. 105 s. C.M.R. 410.500.

 

Bathroom ceiling displays signs of chronic dampness. The source of the dampness must be identified, eliminated, and repaired in a proper workmanlike manner. 105 C.M.R. s. 410.500.

 

78. On January 9, 2012, the City of Worcester through its Department of Inspectional Services filed a Complaint and a Request for Injunctive Relief against the Landlords based on the three (3) inspection reports issued on October 26, 2011. (Civil Action 12H85CV035, Defense Exhibit E)

 

Oven

79. Since the inception of the tenancy the oven in Tenant’s apartment has not worked.

 

80. About a month after moving into the apartment, Tenant notified Property Manager that the oven did not work.

 

81. At that time, the Property Manager came to look at the oven. He claimed it was just dirty and he cleaned it, but it still did not work after this.

 

82. Tenant’s oven never worked until it was replaced in November, 2011. Therefore, during most of her tenancy, the Tenant could never bake or roast anything in her apartment.

 

83. If she ever wanted to bake something she would have to ask her sister to let her use her oven.

 

84. In one of its three reports issued on October 26, 2011, the Department of Inspectional Services Housing/Health Inspections of the City of Worcester ordered the Landlord to make the following corrections within 24 hours:

 

Oven does not function as intended. The oven does not turn on. In addition the door to the oven is loose and has been taped up by the owner. Oven must be made to function as intended or replaced. 105 C.M.R. s.410.351.

 

85. On or about November 14, 2011, the Landlord replaced the old stove with a new stove.

 

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Bathroom

 

86. The bathroom was in very poor condition at the inception of the tenancy. The bathroom sink handle did not work.

 

87. The toilet moved when one sat on the toilet.

 

88. The wood cabinets were all rotted.

 

89. The bathroom was dirty even though Tenant cleaned the bathroom with a cleanser and brush and various cleaning products including bleach and Mr. Clean.

 

90. Tenant notified the Property Manager several times of the poor conditions in the bathroom.

 

91. Tenant notified Property Manager when he came to the apartment to fix the kitchen ceiling after the kitchen ceiling fell down.

 

92. However, the Landlords failed to repair the poor conditions in the bathroom.

 

93. In one of its three reports issued on October 26, 2011, the Department of Inspectional Services Housing/Health Inspections of the City of Worcester ordered the Landlord to make the following corrections within 30 days:

 

Bathroom vanity and cabinet is in severe disrepair. The left side of the cabinet is water damaged and the particle board is separating the vanity must be repaired or replaced. 105 C.M.R. s. 410.500.

 

Bathtub shower surround is in severe disrepair. Surround is lifting and creating a moisture hazard on the shower walls. Shower liner must be replaced so that the shower walls create an impervious surface which is easy to keep clean. 105 C.M.R. s. 410.504. (Defense Exhibit C)

 

94. On January 9, 2012, the City of Worcester through its Department of Inspectional Services filed a Complaint and a Request for Injunctive Relief against the Landlords based on the three (3) inspection reports issued on October 26, 2011. (Civil Action 12H85CV035; Defense Exhibit E)

 

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Trash Outside

 

95. There was a substantial amount of garbage and debris in the backyard of the property.

96. Landlord did not provide trash receptacles throughout most of Tenant’s tenancy.

 

97. Tenant did not throw away trash and debris in the backyard.

 

98. Tenant threw her garbage out in garbage bags, and kept it in an area outside the kitchen, and brought it to the curb on the days the city retrieved trash.

 

99. Landlord had notice of the trash in the backyard and in the common areas because he would visit the subject premises a few times a month to collect the rent from his tenants and he would often walk around the property to check the conditions. Thus, he would pass by the garbage and trash in the backyard of the property.

 

100.During the trial, the Property Manager testified that he would come to the building on a daily basis at 6 am and would walk around the property and pick up the trash. If this testimony is credited then one must assume that the Property Manager was on notice of all of the trash and disrepair and poor conditions on the outside of the property including all the broken windows, trash and disrepair to the front and back deck.

 

101.In a May 2, 2011 inspection report by the Department of Inspectional Services Housing/Health Inspections of the City of Worcester the City of Worcester ordered the Landlords to comply with the Worcester Nuisance Ordinance by making the following corrections within ten (10) days:

 

There is an accumulation of rubbish and debris, including discarded household items, garbage bags, mattresses, and general litter. All items must be removed and the property kept in a clean and sanitary manner at all times. (Civil Action 11H85CV475, Exhibit E)

 

102.However, the Landlords failed to comply with this order and the City of Worcester through its Department of Inspectional Services filed a Complaint for a Preliminary Injunction

 

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against the Landlords which was granted on July 12, 2011. (Civil Action 11H85CV475; Exhibit E)

 

103.It was very difficult for Tenant and her children to live in an apartment that was surrounded by garbage and filth.

 

104.The Tenant would not allow her children to play outside.

 

Deck and Stairs

105.The deck was in disrepair from the inception of the tenancy. There was no railing on the stairs, and there were wires running on top of the stairs. The Landlord would not remove snow and ice from the stairs. One of the railings on the deck was loose.

 

106.The Property Manager had notice of the disrepair because he used the steps to the deck when he came to collect the rent every month

 

107.In addition, every month when the Landlord came to collect the rents he would pass by the front and back deck and stairs and he could see the disrepair.

 

108.The conditions of the deck created difficulty for the Tenant because it created a hazard as the railings were loose and would move when one grabbed the railings for support. Tenant was concerned of falling and hurting herself.

 

109. In one of its three reports issued on October 26, 2011, the Department of Inspectional Services Housing/Health Inspections of the City of Worcester ordered the Landlord to make the following corrections within 30 days:

 

Front porch decking in disrepair. Decking must be repaired in a proper workmanlike manner. 105 C.M.R. s. 410.500. (Defense Exhibit C)

 

110. On January 9, 2012, the City of Worcester through its Department of Inspectional Services

filed a Complaint and a Request for Injunctive Relief against the Landlords based on the three

 

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(3) inspection reports issued on October 26, 2011. (Civil Action 12H85CV035; Defense Exhibit E)

 

Rent Withholding and Retaliation

 

111.The Property Manager and Tenant arranged to meet at the Tenant’s apartment late one night in mid September 2011 so that the Property Manager could collect the September 2011 rent from the Tenant.

 

112.Martha Trinidad had repeatedly told the Property Manager of the severe cockroach and mice infestation, as well as the deplorable living conditions prior to the late night meeting with the Property Manager in mid September 2011.

113.A few minutes before the Property Manager came to Tenant’s home to collect her rent for September 2011; Tenant had been on the phone with her friend Jacqueline Pi±a.

 

114.During their telephone conversation, Tenant told Jacqueline Pi±a that the Property Manager was on his way to collect the rent. Tenant also expressed her concern about the infestation and the poor conditions of her apartment.

 

115.When the Property Manager arrived, Tenant did not hang up the phone. Instead, she placed the phone on the table close to where she was speaking with the Property Manager. Thus, Jacqueline Pi±a could hear the entire conversation between Tenant and the Property Manager.

 

116.When the Property Manager arrived at the Tenant’s apartment very late at night in mid September 2011 to collect the September 2011 rent, Tenant notified the Property Manager that if the severe mice and cockroach infestation and the other conditions in the subject premises were not remedied she would withhold rent.

 

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117.Upon hearing that the Tenant intended to withhold rent, the Property Manager began yelling and screaming at the Tenant. He threatened to evict her and intimidated her by stating that the eviction would ruin her credit for 20 years and that she would never be able to find another apartment.

 

118.Tenant felt very frightened and intimidated.

 

119.It should be noted that the Property Manager did not dispute at trial that he threatened and intimidated the Tenant, nor did he dispute yelling and screaming at her during their late night meeting in mid September 2011.

 

120.Tenant paid the September 2011 rent to the Property Manager during their late night meeting in mid September 2011.

 

121.At that time, the Property Manager did not give Tenant a rent receipt for the month of September 2011. Instead he told her that he would give her a rent receipt later, but he never did.

 

122.The Landlords took no action to remedy the severe infestation of mice and cockroaches or the other conditions, thus the Tenant began withholding rent in October 2011.

 

123.Tenant also withheld rents for the months of November 2011, December 2011 and January 2012.

 

124.In mid October 2011, the Tenant contacted the Department of Inspectional Services.

 

125.On October 19, 2011, the Department of Inspectional Services conducted an examination of 11 Preston Street, Worcester, MA 01610, and they issued three (3) separate reports on October 26, 2011 in which they cited several violations of the State Sanitary

 

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Code that were the responsibility of the Landlords and ordered the Landlords to correct the violations.

126.The Constable served all three (3) of the Department of Inspectional Service at the home of the owners, Ngoc Pham and Xe Tran on October 28, 2011 and he sent them a copy in the mail the next day.

 

127.On November 8, 2011, within two weeks of receiving the inspection reports, the Landlords served the Tenant with a 14 Day Notice to Quit for Nonpayment of Rent. As of that date, the Landlords had not made any of the ordered repairs.

 

128.On December 5, 2011, the Landlords served the Tenant with a Summons and Complaint for eviction.

129.On January 9, 2012, the City of Worcester through its Department of Inspectional Services filed a Complaint and Request for Injunctive Relief due to Ngoc Pham and Xe Tran’s failure to comply with the orders issued by the Inspectional Services Department. (Defense Exhibit E)

 

130.On or about mid January 2012, Tenant moved out of the subject premises.

 

131.On or about mid January 2012, Tenant notified the Landlords that she was moving out of the subject premises.

 

CONCLUSIONS OF LAW

 

Agency

 

The Property Manager is an agent of the Owners/Landlords. Therefore, all of the Property Manager’s actions should be attributed to the Owner/Landlords and the Owners/Landlords are liable for the actions of the Property Manager, their agent. Patterson v. Barnes, 317 Mass. 721 (1945).

 

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Breach of Implied Warranty of Habitability

 

In renting the apartment to the Tenant, the Landlords gave an implied warranty that the apartment was fit for human occupation. This means that when the tenancy commenced, as a matter of law the Landlords promised the Tenant that there were no material defects in the apartment that violated the State Sanitary Code. The Landlords also promised that the apartment would be maintained throughout the tenancy without material defects. Montanez v. Bagg, 24 Mass. App. Ct. 954, 956 (1987); Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). This implied warranty cannot, under the law, be waived by either the landlord or tenant. Boston Housing Authority at 199.

The method for calculating damages of the warranty of habitability is to award the tenant a percentage of the agreed upon rent as an abatement for months in which the breach of warranty existed. The percentage must reflect the diminution in value of the use and enjoyment of the premises because of the existence of the defects which gave rise to the breach of warranty. The purpose would be to put the tenant in the same position as he would have been in if the apartment had been in its proper condition as nearly as this can be done by an award of money damages. McKenna v. Begin, 3 Mass. App. 168 (1975).

Damages for breach of the warranty of habitability should take account of the nature, duration and seriousness of the defects and whether they may endanger or impair the health, safety or well-being of the occupants. Damages may be found for minor violations, or which occur in conjunction with major violations, or which occur in such numbers that they have a cumulative effect on habitability. While not every defect gives rise to a diminution in rental value, it is possible, in a given instance, for substantial defects to reduce the fair rental value of the premises to zero. McKenna at 171.

 

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“The breach continues until the defect or violation is remedied.” 21 Appleton Realty Trust v. Bock and Crockett, Boston Housing Court, 01-SP-05802 (Winik, J., 2002), citing to Berman and Sons. Inc. v. Jefferson, 379 Mass. 196 (1979).

If conditions in violation of the state Sanitary Code exist at the inception of the tenancy, then the landlord is charged with notice of the conditions. McKenna v. Begin, (I) 3 Mass. App. Court, 168 (1975) and Montanez v. Bagg, 24 Mass. App. Ct. 954 (1987).

Landlords are also charged with actual or constructive notice of conditions in the common area. McKenna v. Begin (I), 3 Mass. App. Ct., 168,172 (1975) and McKenna v. Begin (II) 5 Mass. App. Ct.304, 312 (1977).

Given the defective living conditions including the horrific infestation of cockroaches, mice, substantial water leaks in the ceiling, cracked walls, broken oven, severe disrepair in bathroom, flimsy kitchen cabinets, broken locks, trash and debris outside, damaged front and back decks the value of the apartment with all its defects was worth considerably less than its fair market rental value without the defective conditions. At times the conditions were less severe, and justify a lesser abatement, and at times the conditions were so severe as to warrant a higher abatement. Therefore, the Tenant is entitled to an abatement of 25% of the rent during the entirety of the tenancy.

 

Breach of Covenant of Quiet Enjoyment

A landlord who directly or indirectly interferes with the quiet enjoyment of residential premises by the tenant is liable for the actual and consequential damages resulting from the interference. M.G.L. c. 186, s.14.

The covenant of quiet enjoyment means that the tenant will be able to enjoy his or her apartment without disturbance. The landlord promises that he or she will not do some act which deprives

 

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the tenant of the beneficial enjoyment of the premises or which materially impairs the character and value of the premises. M.G.L. c. 186 s.14; Simon v. Solomon, 385 Mass. 91, 102 (1982). Deliberate or malicious intent is not required in order for a landlord to be liable for breach of the covenant of quiet enjoyment. If the natural and probable consequences of what the landlord did, or what he failed to do, was an interference with the full use and enjoyment of the apartment, then the landlord is liable for the damage resulting from the interference. Blackett v. Olanoff, 371 Mass. 714, 716 (1977); Simon v. Solomon, 385 Mass. 91, 102 (1982).

A landlord’s failure to maintain an apartment in good condition can constitute a violation of this covenant of quiet enjoyment if the existence of the conditions deprived the tenant of the beneficial use and enjoyment of the premises. Simon at 566.

The Landlord is liable for actual and consequential damages or three month’s rent whichever is greater, and the costs of the action including reasonable attorney’s fees. M.G.L. c. 186 s. 14. Actual damages can include property damage and costs incurred by the tenant as a result of the breach.

Consequential damages can include compensation for emotional distress. Tenants are entitled to emotional distress damages for the foreseeable emotional distress caused by the interference with the tenant’s quiet enjoyment. Homesavers Council of Greenfield Gardens, Inc. v. Sanchez, 70 Mass. App. Ct. 453, 458 (2007).

A willful violation of G.L. 186, s.14 constitutes a violation of M.G.L. c. 93A. Homesavers Council of Greenfield at 459.

“The ‘willful or knowing’ requirement of G.L. c. 93A, 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

 

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which, whether the defendant knows it or not, amount to violations of the law.” Montanez v. Rug, 24 Mass. App. Ct. 954, 956 (1987)

The Landlord breached the covenant of quiet enjoyment by allowing the severe mice and cockroach infestation, as well as the defective conditions including the broken stove, broken toilet, broken sink, flimsy kitchen cabinets, broken locks, substantial leaks in the ceilings and walls to exist in the subject premises in violation of M.G.L. c. 186 s.14.

Negligent conduct as opposed to intentional conduct is all that is required for a violation of the quiet enjoyment statute. Cruz Management Co. v. Thomas, 416 Mass. App. 782, 789 (1994); and Homesavers Council of Greenfield Gardens, Inc. v. Sanchez, 70 Mass. App. Ct. 453, 458 (2007). The Defendant has claims for actual damages for the value of items which she had to throw out as a result of the infestation, the cost of food she had to throw out because the mice and or cockroaches got into the food, the cost of dining out because she could no longer cook or store food in her own home, and the cost of food which spoiled and had to be thrown away because the food had been stored in her car because she could not bring the food into her home. Much of the furniture and personal belongings could not be brought to Tenant’s new apartment, as her new landlord was concerned about the spread of the infestation.

 

Retaliation

 

A landlord violates G.L. c. 186, s.18 by taking action against a tenant for her assertion of certain protected rights. The Tenant, asserted two protected rights-rent withholding and reporting serious housing conditions to the Worcester Department of Inspectional Services. G.L. c. 239, s. 8A established procedures for tenants to withhold rent to induce landlords to remedy conditions rendering the premises uninhabitable. Hemingway v. Boston Housing

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Authority, 363 Mass. 184, 201 (1973). The last sentence of G.L. c. 239, s. 8A explicitly protects tenants who withhold rent. “The provisions of section two A and of section eighteen of chapter one hundred and eighty-six shall apply to any tenant or occupant who invokes the provisions of this section.”.

In October 2011, the Tenant began to withhold her rent.

In mid October 2011, the Tenant reported the bad conditions in her home to the Worcester Department of Inspectional Services. The Constable delivered three inspection reports to the home of the owners on October 28, 2011.

The Property Manager, Ngoc “Johnny” Tran testified that his father gave him the inspection reports in October 2011.

The Department of Inspectional Services ordered the owners to replace the broken stove within 24 hours and to exterminate the apartment for severe mice and cockroach infestation within 72 hours. The Property Manager took no immediate steps to address either of these serious housing conditions. Instead on November 8, 2011 he had Tenant served with a Notice to Quit for nonpayment of rent.

The tenant has the burden of proving by a preponderance of the evidence that her landlord retaliated against her for engaging in protected activities.

The Tenant and Jacqueline Pi±a testified about the Property Manager’s threat to evict Martha Trinidad if she withheld her rent. During the two day trial, the Property Manager never denied making this threat.

The Landlords’ swift action in issuing the eviction notice coupled with the need for Inspectional Services to seek injunctive relief on January 9, 2012, create a very strong inference that the Property Manager sought to evict the Tenant for contacting Inspectional Services.

 

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Based on this violation of G.L. c. 186, s.18 the Tenant is entitled to an award under G.L. c. 186, s.18. Damages should be assessed at the rate of $950 for three months of rent. plus reasonable attorney’s fees and costs. M.G.L. c. 186 s.18.

 

Violation of Consumer Protection Law 93A

 

A landlord is liable to a tenant for damages if the landlord is in the trade or business of renting residential property and has engaged in unfair acts. As the owners of a triple decker building, which is not owner-occupied, the Landlords are engaged in trade or commerce.

The Consumer Protection Act ( G.L. 93A) prohibits unfair acts and practices in a trade or business, including the rental housing business. A landlord is thus prohibited from engaging in any unfair practices in its rental housing business. York v. Sullivan, 369 Mass. 157 (1975); Commonwealth v. DeCotis, 366 Mass. 234 (1974)

Under the Consumer Protection Law, it is unlawful for a landlord:

 

a.To rent a dwelling unit which at the inception of the tenancy contains a condition which amounts to a violation of the law which may endanger or materially impair the health, safety or well-being of the occupant; 940 C.M.R. s.3.17(1) (a).

 

b.To fail to comply with the State Sanitary Code or any other law applicable to the conditions of a dwelling unit within a reasonable time after notice of a violation of such code or law from the tenant or agency. 940 C.M.R. s.3.17(1) (i).

 

A willful violation of G.L. 186, s.14 constitutes a violation of M.G.L. c. 93A. Homesavers Council of Greenfield at 459; 940 CMR s.3.17.

The Landlords are charged with notice of bad conditions in the Tenant’s apartment at the inception of the tenancy McKenna v. Begin, (1)3 Mass. App. Court, 168 (1975). The Landlord had actual

 

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notice of the conditions in the common area because the Property Manager would come to the building three or four times a month to collect rent and would walk around the building to check on the conditions. The conditions in the common area included: the broken windows; the trash and debris; and the front and back deck which were in serious disrepair. In addition, the Property Manager had notice of the conditions in the Tenant’s apartment because when he came to her apartment to collect her rent, the Tenant would notify him of the bad conditions.

The Landlords intentionally failed to remedy the serious conditions that were repeatedly reported by the Tenant and later on by the Inspectional Services Department. In addition, the City of Worcester through the Department of Inspectional Services filed several Complaints and Requests for Injunctive Relief based on the Landlords failure to comply with its orders to remedy serious violations of the State Sanitary code. (Exhibit E) This conduct certainly constitutes a willful violation of G.L. c. 186, s.14.

If a landlord knowingly or willfully violates the Consumer Protection Act, the tenant is entitled to double or triple his actual damages, as well as attorney’s fees. Montanez v. Bagg, 24 Mass. App. Ct. 954 (1987).

The ‘willful or knowing’ requirement of G.L. c. 93A, 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. Bagg, 24 Mass. App. Ct. 954, 956 (1987)

The Landlords’ reckless disregard for the bad conditions that existed at the inception of the tenancy and that existed in the common areas is evidence of a willful or knowing violation of G.L. c.93A. .In addition the Landlord intentionally failed to correct bad conditions that were repeatedly reported by the Tenant and later on by the Board of Health. Therefore, the

 

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Tenant has met her burden of proving a willful or knowing violation of G.L. c. 93A, s.9(3).

 

Violation of Security Deposit Law

 

If a landlord receives a security deposit from a tenant, the landlord must deposit the money in a separate, interest-bearing escrow account under such terms as will place such deposit beyond the claim of creditors. G.L. c. 186, s.15B (3) (a).

In this case the Tenant gave the Landlord $1,000 for a security deposit on March 15, 2009, and the Landlords did not deposit it in an appropriate bank account until February, 2012. If the landlord fails to comply with this the tenant is entitled to the immediate return of her money. G.L. c. 186, s.15B.

Filing a counterclaim alleging violations of the security deposit law amounts to a demand by the tenant for the return of her security deposit. Caira v. Castenholtz, 21 Mass. App. 758 (1986).

If a landlord fails to return a tenant’s security deposit after demand and is found to have violated G.L. c. 186, s.15B (3) (a), the landlord is liable to the tenant for three times the security deposit plus attorney’s fees. G.L c. 186, s.15B, Caira v. Castenholtz, 21 Mass. App. 758 (1986).

 

JUDGMENT

 

a. The total rent at issue in this case is $33,650.00 through January 2012. The Plaintiff is entitled to credit for rent owed of $3,800.00 ( October 2011-January 2012).

b. The Defendant does not owe any rental arrearage because the value of her counterclaims offsets or exceeds any rent she may have owed. M.G.L. 239, s.8A.

 

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c. For damages under the implied warranty of habitability , Defendant is entitled to $8,412.50 calculated as a 25% abatement of the rent for the 35 months rental period from March 2009 through January 2012. This award shall be doubled under G.L. 93 A as the Court finds that the defendants actions were willful and reckless, for a total of $16,825.00.

d. Under the breach of quiet enjoyment, the Defendant entitled to $5,000.00 for actual damages including the personal belongings that she had to throw away, as well as the cost of dining out during the worst period of the infestation plus a reasonable attorney’s fee. The Court awards no damages for emotional distress.

e. For damages under Tenant’s retaliation claim $2,850.00 plus a reasonable attorney’s fees. f. Under Tenant’s security deposit claim $3,000.00 plus a reasonable attorney’s fees.

 

JUDGMENT FOR THE DEFENDANT FOR $23,875.00 plus a reasonable attorney’s fee to be determined after a hearing on such.

 

/s/ Diana H. Horan, First Justice

May 20, 2013