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Housing Court Cases – Judge David Kerman, Northeast Division

HOUSING COURT

CHRISTOPHER JENKINS Plaintiff v. PATRICIA WARRINGER Defendant

 

ALL 53 INCLUDED

 

 

Docket # No. 07-SP-02244

 

Parties: CHRISTOPHER JENKINS Plaintiff v. PATRICIA WARRINGER Defendant

 

Judge: /s/David D. Kerman

Associate Justice

 

Date: October 11, 2007

 

DECISION AND ORDER

This tenancy, more accurately an occupancy, which began on September 12, 2006, is extensively documented by fifty-two pages of email correspondence between the parties [Ex.2], fifty-six pages of the Town of North Andover Health Department records [Ex.8], fourteen other written exhibits, and almost two days of oral testimony received at trial.

 

From the landlord’s standpoint the early signs were not good. The tenant stated in her rental application on September 7, 2006 [Ex3]: that her current address was 30 Harbor View Drive in Hingham; but that she was staying at the Marriott Towne Place Suites in Tewksbury; that her previous address was 59 Willow Ridge Road in North Andover; that she had never been evicted from a rental residence; and that she had not had two or more late rental payments in the past year.

 

These representations were false. In fact, the tenant had moved from her previously owned marital premises at 59 Willow Ridge Road sometime in 2002. At the time she signed her rental application she had no current residence of her own, and was staying with relatives, having been evicted on December 1, 2005, by judgment of this Court in case no. 04-SP-00765 due to nonpayment of several months’ rent. (The records of this Court also show two other eviction cases lodged against the tenant: case no. 03-SP-00290 for nonpayment of $4,315 rent and related charges was dismissed on February 13, 2003; case no. 03-SP-01869 for nonpayment of $2,675 rent and related charges was disposed by agreement for judgment on August 28, 2003.)

 

The tenant’s credit report dated September 11, 2006 [Ex15] showed two other unsatisfied judgment debts, Lawrence District Court no. 0218-CV-0364 for $4,507 to RA Jaworski, and Lynn District Court no. 0213-SC-1329 for $84 to the Honey Baked Ham Co.; four (or five) other unsatisfied collections, including unpaid utility bills of $2,051 to the Massachusetts Electric Co., and $384 to Comcast; and a “Fraud Search … Address mismatch alert.”

 

Nevertheless, on September 12, 2006, the landlord let the tenant and her family of three teenage and adult children move into the four bedroom apartment premises at 75 Davis Street, North Andover, after the tenant represented: that her previous financial difficulties had been caused by a difficult divorce; that her finances were now stabilized by her former husband’s $1,120 weekly support payments; that she would sign and return a standard form dwelling lease with $1,895 monthly rents; and that she would pay the $1,200 pro-rated first month’s rent and $1,895 security deposit on September 12, 2006, the $1,895 second month’s rent and $1,895 last month’s rent deposit on October 1, 2006, and the $1,895 third month’s rent and $500 pet deposit on November 1, 2006. [Ex.2, 9/11/06 email].

 

 

The tenant paid the $1,200 pro-rated first month’s rent and the $1,895 security deposit [Ex.2, 9/18/06 email]. She also paid the $1,895 second month’s rent, but she did not pay the last month’s rent deposit [Ex.2, 10/2/06 email]. And she paid the $1,895 third month’s rent, but she did not pay the pet deposit. To date, the tenant has not paid either the last month’s rent deposit or the pet deposit. And throughout, she was habitually and chronically late with her rent payments, providing instead various lame and feeble excuses:

 

Ex.2, 10/2/06 email: “an unexpected additional college tuition bill”

 

Ex.2, 12/4/06 email: “ooops! … DROPPED IT OFF TO THE WRONG BANK … the money had in fact been deducted from my account … as soon as the money hits my account, I’ll run over and deposit it into your account”

 

Ex.2, 1/6/07 email: “I deposited the rent check … Sorry for the delay”

 

Ex.2, 2/7/07 email: “I deposited the rent … the bank wasn’t open … Again, I apologize for the delay … I had college tuition payments … [former husband] in South America … unable to transfer funds to me … no Bank of America down there … My last paycheck from Friday just cleared yesterday”

 

Ex.2, 3/5/07 email: “I have to apologize for this delay with the rent … [former husband] in South America … rest assured that the second I receive any income, I’ll deposit it into your account … just paid off a very large chunk of college tuition … I apologize again, and I’ll keep you posted”

 

Ex.2, 3/5/07 landlord’s email: “Regarding the rent for this month, as much as we would like to say deposit it when you can, we cannot. Our mortgage is due on the 1st of the month. Per our agreement the rent is due on the 1st of the month. Please make arrangements to have the rents paid by the first of each month”

 

Ex.2, 3/10/07 email: “The rent will be in your account by noon time today”

 

Ex.2, 4/3/07 email: “I dropped the rent into the bank drop off box, since the bank was closed when I got over there”

 

Ex.2, 5/4/07 email: “I deposited the May rent tonight in the bank drop-off box”

 

Ex.2, 5/5/07 landlord’s email: “there is no record of your deposit”

 

Ex.2, 5/5/07 email: “I gave the envelope to my son … he

was supposed to drop it in the box for me … he forgot”

 

 

The tenant never returned a signed lease. At the tenant’s direction that the lease be sent to the 75 Davis Street, rental premises [Ex.2, 9/10/06 email], the landlord mailed the first copy of the lease [Ex.5, 16] on September 13, 2006 [Ex.2, 9/13/06 email]. After the tenant claimed that she did not receive it [Ex.2, 9/18/06, 9/20/06 emails], the landlord furnished another copy [Ex.6, Ex.2, 9/21/06 email]. The tenant received the lease [Ex.2, 9/24/06]; in fact she acknowledged receiving both copies [9/26/06 email]. Still, she did not sign and return the lease, supposedly: because it was only of 8½, not 12 months’ duration [Ex.2, 9/24/06, 9/26/06 emails]; because some parts of both copies were illegible [Ex.2, 9/26/06 email]; and because the lease did not explicitly state that the $500 pet deposit would be refunded at the end of her occupancy [Ex.2, 10/16/06 email].

 

The landlord gave assurances: that upon the lease’s expiration and renewal on May 31, 2007, there would be no rent increase [Ex.2, 9/26/06 email], that there would be no rent increase until the summer of 2008 [Ex.2, 10/2/06 email]; and that assuming there was no damage the pet deposit would be returned [Ex.2, 10/16/06 email]. Still, the tenant did not sign and return a lease, providing again various lame and feeble excuses:

 

Ex.2, 10/16/06 1:04 PM email: “I will get back to you … regarding the lease”

 

Ex.2, 10/16/06 8:48 PM email: “I felt some reservations about finalizing my decision to go through with the lease … the housing and rental market is the slowest it’s been in years … I could have my pick [of] many other homes in North Andover that have come on the market …. My husband … has agreed to move us to the other place if we can’t reach an agreement on any parts of the lease”

 

Ex.2, 10/25/06 email: “I finished reading the Lease Contract, but have a few questions that I need clarification on, before I can officially sign off on it”

 

Ex.2, 11/7/06 email: “in answer to the lease question, I can get that out to you by next week the latest … I’ll get it out asap”

 

Ex.2, 12/5/06 email: “I’m going to put a priority on getting the lease out to you ASAP”

 

 

On September 18, 2006, the tenant informed the landlord that she had “accumulated a list of things that need to be fixed, repaired or replaced, mostly the result of normal wear and tear.” There were nine items: (1) the tub did not drain properly, (2) the bathroom sink pipe dripped, (3) the clothes washer was broken, (4) the clothes dryer needed to be replaced, (5) the microwave was

unusable, (6) the kitchen sink faucet handle was loose, (7) the kitchen sink spray hose leaked, (8) the carpets needed cleaning, and (9) the walls needed repainting. [Ex.2, 9/18/06 9:01 AM email].

 

The landlord responded immediately and promptly began repairs: I will look at the bathroom and kitchen items; please call A&M for the dryer, washer and microwave; have the carpets cleaned and I will pay you or you can take it off the rent; already had a painter look at it [Ex.2, 9/18/06 10:28 AM, , 9/19/06, 9/20/06 emails]. The tenant acknowledged the landlord’s efforts, “Thanks for the quick email response you sent” [Ex.2, 9/18/06 2:29 PM email]. As to the tub she quickly reported, “it drains like there was never any problem at all … the drain was working as good as new” [Ex.2, 9/20/06 email]. The landlord asked the tenant to “keep a list of things and I will work through them either myself or through someone else” [Ex.2, 9/26/06 email].

 

In this case it was the landlord, not the tenant, who first contacted the health department inspection authorities. On March 5, 2007, the tenant informed the landlord:

 

“I’ve been on my back out of work for the past 2 weeks with a lower back injury (coccyx bone), after slipping on the outside steps on my way out one morning, landing on my tailbone and hitting my head … don’t worry I’m recovering and of course would never file any claim …” [Ex.2, 3/5/07 email]

 

After nearly six months’ of frustration, and now alarmed, the landlord, on March 12, 2007, contacted the North Andover Health Department and asked that the health department make a full inspection of the premises [Ex.8]. But the health department officials informed the landlord that, unlike some of the larger cities and towns or communities with poor housing stock, the Town of North Andover had no certificate of fitness or other preventative inspection program.

 

On April 24, 2007, the tenant began making demands that the landlord furnish her with space in his nearby garage that was used to store antique cars. One of the car owners had sold his car and didn’t need his space any more; the tenant wanted to rent it out [Ex.2, 4/24/07 2:01 PM email]. The landlord responded that he was sorry but that the garage would be rented to someone who had been waiting quite some time for a space to open up [Ex.2, 4/24/07 21:25 PM email]. The tenant complained that she “would think that the primary tenant on the property would have the priority over any one else” [Ex.2, 4/25/07 11:56 AM email], and that she was “shocked, and disappointed” about the garage [Ex.2, 4/25/07 1:51 PM email]. Later, she stated, “bottom line is that the property and garages are yours, to do with what you want … in my search have found an ample supply of homes (single and multifamily) available for rent, with garages, for even less money … if I can get something as nice as the places I’ve seen, with a garage on the property that I can use, that would justify a move for me, because I do need a garage” [Ex.2, 5/4/07 email]. The landlord replied, “If you intend to move because you can find a better deal with space and garage

storage that better accommodates your needs please keep us informed and have your final decision to us by May 31st” [Ex.10, 5/6/07 8:12 AM email]; “There is no space for you to rent. It is nothing against you, but there is not a space available. Please advise of your intentions to stay or move before the end of the month” [Ex.2, 5/6/07 15:35 PM email]. The tenant responded, “Your refusal to rent it to me is unfair and discriminatory” [Ex.2, 5/6/07 5:09 PM email]; “Your continued refusal to allow me to rent a garage, or any one that I know, is blatant discrimination, which is also illegal” [Ex.2, 5/11/07 email].

 

On April 25, 2007, the tenant began making complaints about her neighbors, specifically “the people who rent those garages, and also the 1st floor tenant on the other side of the house.” The tenant complained about “trash … littered all around those garages especially in the driveway area next to the garages (where the other tenant in the house is supposed to park with their two cars)” [Ex.2, 4/25/07 email]. The tenant persisted: “the boyfriend of the tenant next door always parks his car out in front of the house every night … and the tenant continues to park her car …. she seems to love to just act bratty, immature and irresponsible … By the way they also broke the gate, and the gate latch. The two of them are just riff raff, and enjoy behaving maliciously.” [Ex.2, 5/18/07 email].

 

The issue of cross-connected lines for utility services emerged on May 10, 2007. The tenant inquired, “Where does the warm/hot water for the washer machine in the basement come from?” [Ex.2, 5/10/07 email]. The landlord answered, “the hot water for the washer in the basement comes from your furnace. Everything else is separate” [Ex.2, 5/11/07 7:36 AM email]. The tenant replied, “I was never informed that I would be paying for the hot water for the other tenants to use their washer, and for the heat to dry all their clothes … it is illegal” [Ex.2, 5/11/07 4:21 PM email]. The landlord responded, “The electricity to run the washer and dryer are wired into the common service of the house which we pay for, not you. It is an electric dryer. Your furnace maintains a hot water tank for your unit only. There is no separate hot water tank for the tenant washer that you are paying to heat. However, when hot water is needed for the tenant washer it is drawn from your tank. The cost of this is negligible and yes it has been accounted for in your rent price” [Ex.2, 5/11/07 20:31 PM email].

 

By May 31, 2007, it appeared, from the tenant’s stated viewpoint, that both the issue of utility cross-connections and the issue of repairs had been resolved. The tenant stated, “Despite any problems and issues (most recently, this month, the gas/hot water pipes that connect the other tenants washer, dryer, etc., to my furnace/ hot water tank instead of theirs), I don’t see it as a deterrent to continuing my lease, and especially considering the negligible difference in cost, as you say … I know your letter a couple of weeks ago stated that you wanted to come up to do ‘Spring Repairs,’ etc., on the house, for all tenants. I don’t think that we actually have anything that needs repairing, since you did everything when you [were] up last …. Actually, the only thing that I can think of is (not a repair) but the two spot lights at

the top corner of the deck have been out for a while, and seems impossible for me to get to, since it’s up at the corner of the roof, but it’s certainly not urgent” [Ex.2, 5/31/07 email].

 

The tenant stated, in the same email message, “As requested by you, I am responding by today (May 31st) to confirm our decision to continue to lease. Although I haven’t yet received a copy of the new lease that you were having drafted and mailed to me to sign, in accordance with previous communications and agreed upon terms, I assume that it will be much the same as originally agreed. In response to your next statement, I find it somewhat frustrating that you would falsely accuse me of never returning the corrected lease to you, that I received from you back in mid-October of last year. (As you recall, the first lease that I received from you in late September, 2006 was illegible, since the terms of the lease were truncated about an inch from the end of each line, except for the signature page and the lead paint pages.) I later received a legible copy of the lease, and you addressed my concerns, in conversations and email, and committed to the resolutions you came up with. As you are aware, I absolutely mailed it back to you, at the same address you listed on the lease, with the attachments (copies of the changes and/or clarifications you made via email correspondence with me) and my signature, as required. I will be more than happy to mail you another copy if you can’t find it, or even fax it to you when I get back home today (around 6:00 – 6:30 pm. Or, if you provide me a fax number, I’ll fax it right over). Otherwise, I’ll mail you out another copy, not a problem.” [Ex.2, 5/31/07 email].

 

There was no truth to these statements. In fact, the tenant never returned a signed lease, nor did she send the landlord any “attachments … changes and/or clarifications.”

 

Significantly, there was no lease signed by the tenant, and no copy of a lease signed by the tenant, offered into evidence at trial.

 

The tenant did offer at trial a five-paged “Addendum to Lease” document [Ex.7] which she claimed was an overriding part of the lease contract. The Addendum bears her signature (twice) on the last page and also her initials on each of the preceding first four pages. The document, however, is not signed by the landlord. The tenant testified at trial that she sent the Addendum document to the landlord. This testimony was false. The landlord, whose testimony I credit, testified that he had not seen the Addendum document until it was produced by the tenant during the discovery phase of the case.

The very contents of the supposed Addendum belie the tenant’s testimony that the landlord agreed to it, or even that she provided it to the landlord. The first page of the Addendum document: extends the term of the lease until June 2009 and “for as long as you (we) need a home”; prevents a rent increase through at least June 30, 2008; designates an exclusive parking space; eliminates the no-pet clause, stating that the tenant’s dog is a trained medical dog and is needed for both medical and safety reasons; eliminates the pet fee, stating “you know it’s illegal to charge a

pet fee in MA”; and describes the supposedly defective condition of the bathtub, that there is “continuous mold/mildew buildup” and “the wall next to the tub leaks, leaving the wall, soft with moisture, bubbling and peeling.” Pages two and three list extensive repairs to be completed “AS A CONDITION OF TENANT PAYING MONTHLY RENT.” Page four postpones payment of the tenant’s last month’s rent deposit until all work is completed; claims deception in the lack of a garage space; claims loss of $4,000 worth of furniture that was left on the deck due to no garage; and claims that there are too many tenants on the property. Pages four and five claim a right to reimbursement, due to landlord deception, (1) for monthly storage fees, (2) for rent reduction for lack of garage, (3) for rent reduction for loss of privacy, (4) for rent reduction for loss of use of deck for entertaining, due to its use for storage, due to lack of garage; (5) for $4,000 of damaged/destroyed furniture; (6) for frustration; and (7) for loss of use of largest room in the unit.

 

At trial, the tenant supported her claim of loss of use of the largest room in the unit with a photograph [Ex.4], which shows a bed, three chairs, and blankets all neatly arranged in a room with bare studs and no sheet rock ceiling or walls. The room depicted is in fact storage space, and it is not one of the four bedrooms, or other habitable space, of the rented apartment.

 

It is impossible to believe that the landlord agreed to the onerous “terms and conditions” contained in the Addendum. It is also impossible to believe that the landlord ever saw the Addendum document prior to this litigation, as many of its contents (“you know it’s illegal to charge a pet fee in MA”; “continuous mold/mildew buildup”; repairs to be completed “AS A CONDITION OF TENANT PAYING MONTHLY RENT”; payment of tenant’s last month’s rent deposit postponed until all work is completed; loss of $4,000 worth of furniture; right to reimbursement; loss of use of deck; loss of use of largest room) are nowhere to be found in the parties’ email correspondence.

 

The landlord replied to the tenant’s May 31, 2007, email, “Received the note regarding your stay at our house. Please note that we are being represented by counsel now and would appreciate that you or your attorney be in touch with Dudley Goar if you have any questions regarding the termination of our relationship.” [Ex.2, 6/5/07 13:34 PM email]. The tenant responded, “Yes, Chris, received your fed ex letter when I got home later that day. Attorney information noted.” [Ex.2, 6/5/07 2:25 PM email].

 

The health department records [Ex.8] and testimony at trial show the following: As mentioned, the landlord had communicated with the health department on March 12, 2007. The landlord also spoke with the health inspector on May 15, 2007, stating that he was serving the tenant with eviction papers by the end of the week via an attorney.

 

The first communication from the tenant to the health department was on June 26, 2007. She called the department and stated to the health inspector: that her lease was up on the 30th

of June; that she was served in May with an eviction notice; and “that the pipes from her unit for the water heater and furnace are going through to another apartment, and she is getting charged for the heat/water usage.”

 

By letter dated July 1, 2007 [Ex.11], the tenant informed the landlord that she was “legally withholding rent, due to the Board of Health violations, and refusal to honor your agreement to renew my lease for the next 3 years and beyond, ‘for as long as you (I) need a home.'”

 

On July 2, 2007, a health official inspected the premises, and on July 3, 2007, issued an “Order Letter” that the owner hire a licensed electrician and licensed plumber to evaluate any cross-connections of electricity and plumbing. The owner’s plumber’s letter dated July 6, 2007, reported that cross-connected plumbing had been corrected, and the owner’s electrician’s letter dated July 9, 2007, reported that all electrical wiring was separate and correctly metered. The health department issued a “Letter of Compliance” dated July 13, 2007, stating that all violations noted on the Order Letter were either corrected or did not exist.

 

By letter dated July 23, 2007, the tenant communicated her dissatisfaction to the health department, stating that there was an additional code violation for cross-wiring for the outside lighting that had not been included; that her request “has been treated and handled with bias and outside of the legal requirements to which the Board of Health is obligated to adhere to”; and that the “unprofessional manner with which this is being handled … forced me to seek out and hire an attorney to handle this case, which I may very well be passing the costs of, on to your department.”

 

At some point (the record does not show exactly when; item #17 of the document includes the date July 28, 2007), the tenant provided the health department with her own nine-paged “Housing Code Checklist” specifying fifty-five supposed code violations. The inspectors expressly noted in writing their disagreement with some items on the Checklist: items #1, #2 no heat, and no electricity for the second floor large uninsulated unfinished bedroom (because it was storage space, not a habitable bedroom); item #4 toilet doesn’t flush (it flushes); #5 inadequate locks (found adequate); item 5 accumulation of garbage (no trash, tenant stated); #7, #55 lead paint (no one under six); #14 unsafe handrails (fine); #15 defect in electrical, plumbing or heating system (none); #16 cockroach, insect or rodent infestation (none found); #54 common areas front staircase (minimal wear), accumulated trash (none seen).

 

On August 14, 2007, a health official conducted another inspection, and on August 15, 2007, issued an “Order Letter” as to eighteen minor violations. The Order Letter noted that the tenant had presented an “extensive list of 55 items” as “possible concerns.” The first three items cited in the Order Letter were: “Observed Doorbell wire hanging out in excess of 18 inches – Push unused doorbell wire back into hole and cover so people cannot pull it out again”; “Observed storm door – spring has screws missing –

top only -Replace screws in storm door spring or remove extra spring”; “Screen doors were lacking on front storm door and mudroom – Show tenant location of front door screen and Install screen door in mudroom.” The most significant item cited was “Second Floor Bathroom – tub not draining; broken lever; caulking deteriorating – Repair drain problem and re-do caulking.”

 

The landlord immediately responded, as evidenced by the email correspondence [8/16/07 8:14 AM, 8/16/07 2:20 PM, 8/20/07 7:49 AM, 8/20/07 11:28 AM, 8/20/07 11:30 AM] contained in the health department file. But despite an agreed appointment for August 21, 2007, the tenant refused to allow the landlord’s maintenance company access to the premises to make the ordered repairs.

 

By “Order Letter” issued August 21, 2007, the public health director ordered the tenant to comply with the State Code regarding providing access to the owner by August 24, 2007. The letter stated, “Failure to do so will result in a complaint filed against you in the Housing Court.”

 

By email dated August 21, 2007, actually sent on August 31, 2007, the tenant asserted her right to a hearing before the Board of Health and also the Board of Selectman. In that letter, the tenant communicated her dissatisfaction with the health department’s “Order Letter,” which, according to the tenant, was “filled with contrived information and blatant lies.” The tenant complained, in two pages, about “intolerable lack of professionalism, ethical behavior, honesty, neutrality and integrity” on the part of health department officials, about “fraudulent and slanderous” behavior, that the officials had “worked hard to ignore and avoid many other code violations in that list that was provided to you,” and of “collusion, biased actions and false reporting coming out of your office.”

 

The health director sent the tenant a “Letter of Compliance” dated August 31, 2007, acknowledging that prior to the deadline the tenant had provided access to the owner to effect repairs as needed. The letter thanked the tenant for her cooperation.

 

On September 6, 2007, health officials, from the Town of Andover, accompanied this time by officials from the state Department of Health, reinspected the premises, and issued another “Order Letter” dated September 10, 2007; two of the previously cited violations were noted as incomplete; six additional violations observed by the state officials were newly cited.

 

Following the inspection, the tenant withdrew by letter dated September 6, 2007, her request for a hearing before the Board of Health put forth in her email letter dated August 21, 2007. She also asked (unsuccessfully) that her letter in which the request for hearing was made be expunged from the health department’s file.

 

Within a few days after the inspection (the health department record received in evidence in the case does not include a final “Letter of Compliance”), the landlord corrected all of the cited violations.

 

 

1. Rent

 

The tenant has now withheld four months’ rent totalling $7,580 at the agreed rate of $1,895 per month through October 31, 2007. The landlord voluntarily credits the tenant’s rental debt with double the amount of her excess electricity utility charges, in the sum of $48 at $4 per month from the beginning of her occupancy on September 12, 2006, through September 12, 2007, by which time the plumbing and electrical cross-connections were corrected.

 

Accordingly, the landlord is entitled to recover unpaid rent of $7,532.

 

2. Habitability

 

The leading case of Boston Housing Authority v. Hemingway, 363 Mass. 184, 293 N.E.2d 831 (1973), teaches:

 

“The existence of a material breach will be a question of fact to be determined in the circumstances of each case. Factors (not necessarily all inclusive) aiding the court’s determination of the materiality of an alleged breach of the implied warranty of habitability include: (a) the seriousness of the claimed defects and their effect on the dwelling’s habitability; (b) the length of time the defects persist; (c) whether the landlord or his agent received written or oral notice of the defects; (d) the possibility that the residence could be made habitable within a reasonable time; and (e) whether the defects resulted from abnormal conduct or use by the tenant.” Id. at 200-201; 843-844.

 

“A housing inspection report which certifies that Code violations exist which ‘may endanger or materally impair the health or safety, and the well-being of any tenant therein or persons occupying said property’ would constitute evidence of a material breach and the landlord’s notice of that breach.” Id. at 200; 843 fn.15.

 

“The State Sanitary Code’s minimum standards of fitness for human habitation and any relevant local health regulations provide the trial court with the threshold requirements that all housing must meet. Proof of any violation of these regulations would usually constitute compelling evidence that the apartment was not in habitable condition, regardless of whether the evidence was sufficient proof of a constructive eviction under our old case law. However, the protection afforded by the implied warranty or habitability does not necessarily coincide with the Code’s requirements. There may be instances where conditions not covered by the Code regulations render the apartment uninhabitable. Although we have eliminated the defence of constructive eviction in favor of a warranty of habitability defence, a fact

situation, which could have demonstrated a constructive eviction, would now be sufficient proof of a material breach of the warranty of habitability, regardless of whether a sanitary code violation existed or not. On the other hand, there may be instances of isolated Code violations which may not warrant a decision that the premises are uninhabitable. The trial court must have the same broad discretion to determine whether there is a material breach given the special circumstances of each case as that accorded the board of health under Reg. 39 of the Code which allows the board to vary the application of any provision with respect to a particular case.” Id. at 200-201; 844 fn.16.

 

 

In this case, the “seriousness of the claimed defects and their effect on the dwelling’s habitability” was minimal. Also, the “length of time the defects persist” was minimal, mainly due to the landlord’s willingness to immediately respond and effectuate repairs.

 

This landlord was pro-active, as demonstrated by the fact that on March 12, 2007, months before the tenant made any complaint to the health department, he asked the department to make a full inspection of the premises.

 

The earliest health department “Order Letter” to the landlord is that dated July 3, 2007, which cited no housing defects and no actual code violations, but required only an evaluation by the owner’s electrician and plumber of possible utility cross-connections. After the owner’s plumber and electrician reported that all cross-connected plumbing had been corrected and that there existed no cross-connected electrical wiring, the department issued its “Letter of Compliance” dated July 13, 2007, stating that all violations noted on the Order Letter were either corrected or did not exist. The August 15, 2007, Order Letter listed eighteen minor violations which were said to “require minimal work and do not need licensed personnel for correction.” After the department issued its August 21, 2007, Order Letter against the tenant for denying the landlord’s workmen access, the landlord’s workmen immediately repaired the cited violations. The September 10, 2007, Order Letter noted that two of the previously cited violations were incomplete and cited six more minor violations. Within a few days the landlord corrected all of the cited violations.

 

It is significant that in none of the Order Letters did the inspectors certify (or even suggest) that violations exist which “may endanger or materally impair the health or safety, and the well-being of any tenant therein or persons occupying said property” as would constitute evidence of a material breach. Id. at 200; 843 fn.15.

Here, the claimed housing defects were mere “instances of isolated Code violations” which do not warrant a decision that the premises were uninhabitable. Id. at 200-201; 844 fn.16.

 

 

The most serious housing defect in this case was the cross-connection of the tenant’s electrically heated hot water for the commonly used clothes washer, which violated the State Sanitary Code, 105 C.M.R. §410.190 (hot water), §410.354(A) (electricity and gas). Also, according to the state inspector (the town inspector disagreed) there was a cross-connection of the tenant’s electricity, to her side of the basement, which, according to the state inspector, was a common area because it was not walled off to prevent access by the other two tenants in the building.

 

As to the cross-connection, there is nothing of merit to the landlord’s argument that the tenant herself could have suffered no actual damage because she had placed her electricity (and gas) bills in one of her children’s names [Ex.12, 13].

 

But where the landlord voluntarily credits the tenant with double the amount of her $24 estimated loss, against an unpaid rent balance of $7,580, the tenant is not entitled to habitability damages.

 

On the facts and on the law, the landlord in this case did not materially breach the common law implied warranty of habitability.

 

3. Quiet Enjoyment

 

The Quiet Enjoyment Law, Gen.L. c.186 §14, imposes both criminal liability (from $25 to $300 fines and imprisonment up to six months) and civil liability (actual and consequential damages or three month’s rent, whichever is greater, plus court costs and a reasonable attorney’s fee) upon a lessor or landlord (1) “who willfully or intentionally fails to furnish” [certain specified utilities or services]” or (2) “who directly or indirectly interferes with the furnishing by another of such utilities or services” or (3) “who transfers the responsibility for payment for any utility services to the occupant without his knowledge or consent” or (4) “who directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant” or (5) “who attempts to regain possession of such premises by force without benefit of judicial process.”

 

The tenant does not contend, nor could she, that defective housing conditions, which did not cause a material breach of the warranty of habitability, were “serious and substantial” enough to violate quiet enjoyment. See, Doe v. New Bedford Housing Authority, 417 Mass. 273, 284-288, 630 N.E.2d 248, 254-256 (1994).

 

The tenant does contend, however, that by renting an apartment with electrical utility cross-connections the landlord “transfer[ed] the responsibility for payment” for utility services to the occupant without her knowledge or consent, in violation of the statute, thus entitling her to three month’s rent and a reasonable attorney’s fee.

There is no merit to this claim. First, the condition of cross-connections existed at the onset of the tenancy. There was no “transfer” or change in payment responsibility from the landlord

to the tenant. The only “transfer” that occurred was from the tenant’s utility service to the landlord’s service when the cross-connection conditions were identified and corrected. Moreover, where the landlord voluntarily credits the tenant with double the amount of her excess electrical utility charges, in the sum of $48, there was no ultimate “transfer” of the landlord’s “responsibility for payment.”

 

The tenant relies on two District Court decisions, Brinn v. Mello, 1998 Mass.App.Div. 70, 1998 WL 166635 (1998), and GML Corp. v. Massey, 2007 Mass.App.Div. ___, 2007 WL 2728340 (2007), which hold otherwise. I acknowledge the opinions in the District Court cases, but I respectfully disagree.

 

These District Court decisions (although it appears that there were disruptions in service in the Massey case) seem inconsistent with similar utility cases decided by our Appeals Court, where there is no suggestion of liability under Gen.L. c.186 §14 for utility cross-metering code violations that do not result in interruptions in service. See, Young v. Patukonis, 24 Mass.App. 907, 908-909, 506 N.E.2d 1164, 1166 (1987) (rescript); Lezberg v. Rogers, 27 Mass.App. 1158, 539 N.E.2d 89 (1989) (rescript); Poncz v. Loftin, 34 Mass.App. 909, 911-912, fn.2, 607 N.E.2d 765, 767, fn.2 (1993) (rescript); Knott v. Laythe, 42 Mass.App. 908, 910, 674 N.E.2d 660, 662 (1997) (rescript).

 

Mindful, that the Quiet Enjoyment Law, Gen.L. c.186 §14, imposes both civil and criminal liability, and that criminal statutes are to be strictly construed, Commonwealth v. Advantage Bank, 406 Mass. 885, 887, 550 N.E.2d 1388, 1389-1390 (1990), neither the text of the statute nor the appellate court decisional law gives a lessor or landlord fair notice and warning that a criminal conviction with fines and imprisonment could result from a de minimus cross-metering code violation.

 

I find and rule that the landlord in this case did not violate the statutory covenant of quiet enjoyment, Gen.L. c.186 §14, by reason of utility service cross-connections or otherwise.

 

 

4. Security Deposit

 

The landlord mishandled the security deposit which the tenant paid at the beginning of the occupancy by not complying with any of the requirements of the Security Deposit Law, Gen.L. c.186 §15B. However, the tenant is not entitled to recover treble damages and attorney’s fees under the Security Deposit Law, Gen.L. c.186 §15B, for two reasons:

 

First, the landlord returned the security deposit on August 8, 2007, promptly after the tenant first lodged a demand for its return in her counterclaim which her attorney served by mail on July 19, 2007, and filed in this Court on July 23, 2007. Although there is not any definitive appellate court ruling on the issue, I believe that our appellate courts would rule that such a return, made within the twenty day period allowed for a reply to a

counterclaim by MRCvP Rule 12(a)(1), see also Rule 6(a) (excluding weekends and holidays), Rule 6(d) (adding three days to respond to papers served by mail), and Rule 7(a) Reporter’s Notes–1973 ¶5 (the twenty-day period specified by Rule 12(a)(1) applies to a reply to a counterclaim denominated as such), satisfies the “immediate return” requirement of the statute, Gen.L. c.186 §15B(3)(a). See and contrast, Castenholtz v. Caira, 21 Mass.App. 758, 764, 490 N.E.2d 494, 498 (1986), where the tenant brought suit for his deposit and there was “no finding of a tender promptly thereafter.”

 

Second, on the facts of this case, where the tenant, who was chronically late with her rent, and then withheld without justification four months’ rent beginning July 1, 2007, the landlord was fully entitled to apply the tenant’s security deposit to unpaid rent. See and contrast, McGrath v. Mishara, 386 Mass. 74, 79-80, 434 N.E.2d 1215, 1219-1220 (1982), where the landlord’s bad faith deduction of rent that was not in fact due resulted in treble damage liability, citing Goes v. Feldman, 8 Mass.App. 84, 91-92, 391 N.E.2d 943, 948 (1979), where the landlord’s conditional return of a portion of the deposit resulted in liability for treble the entire amount.

 

The tenant is entitled to no relief under the Security Deposit Law, Gen.L. c.186 §15B.

 

 

5. Pet Deposit

 

The parties agreed, and the lease form furnished by the landlord provided, that, in addition to a security deposit of $1,895 equal to the first month’s rent, the tenant would pay a $500 pet deposit. The $500 pet deposit requirement was unlawful, not because, as the tenant stated in her “Addendum,” that “it’s illegal to charge a pet fee in MA”; only because the pet fee constituted an additional security deposit which exceeded the first month’s rent limitation of the Security Deposit Law, Gen.L. c.186 §15B(1)(b).

 

The tenant contends, correctly so, that imposition of the pet deposit, in excess of the limitation imposed by the Security Deposit Law, Gen.L. c.186 §15B(1)(b), constitutes an unfair or deceptive act or practice under the Consumer Protection Law, Gen.L. c.93A. See, Attorney General’s “Chapter 93A Landlord-Tenant” regulation, 940 C.M.R. §3.17(4)(a).

 

The tenant correctly contends that the landlord in this case, who lives in New York state and owns two other rental properties in Phoenix, Arizona, is “engaged in trade or commerce” within the meaning of Gen.L. c.93A §1(b), §2(a). (I note, however, that in this case, it is the tenant, (“having owned 4 of our own rental properties (back in the 80’s)” [Ex.2, 10/25/06 email]), who is the relative sophisticate between the parties. In comparison, the landlord, who was unsophisticated enough to not apply the tenant’s deposit money, first to a last month’s rent deposit, then to a security deposit, thus to avoid running afoul of the requirements of the Security Deposit Law, Gen.L. c.186 §15B(1)(b), and

§15B(2)(b)-(c), §15B(3)(a), where half the deposit money was not paid, is the relative innocent.)

 

The tenant relies on the case of Leardi v. Brown, 394 Mass. 151, 474 N.E.2d 1094 (1985), where the landlord adamantly refused, after written demand, to cease using a lease with six unlawful provisions. Id. at 157; 1100 fn.7. But this is not a case like Leardi. As explained by the Court in Hershenow v. Enterprise Rent-A-Car Company of Boston, Inc., 445 Mass. 790, 799-800, 840 N.E.2d 526, 534 (2006):

 

“In that case, a residential landlord had included statutorily noncompliant provisions in standard apartment leases with his residential tenants. The terms of the lease misled the tenants as to the landlord’s statutory obligation to maintain the premises in habitable condition. *** 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 with the requirements of Massachusetts law.”

 

 

Instead, this is a case like Roberts v. Enterprise Rent-A-Car Company of Boston, Inc., 445 Mass. 811, 813-814, 840 N.E.2d 541, 543 (2006), where the plaintiff, who did not purchase a collision damage waiver in his rental car contract, could not have suffered any injury with respect to a product he did not even purchase. Similarly, the tenant in this case, who neither paid any pet fee, nor signed any lease providing for it, could not have suffered any loss or injury for a fee she never paid or from a lease she never signed.

 

Furthermore, the landlord could not have returned deposit monies that were never paid, and he could not have deleted an offending provision from a lease that the tenant never signed or returned; thus the landlord was unable to exercise his cure rights under the statute. See, Kohl v. Silver Lake Motors, Inc., 369 Mass. 795, 343 N.E.2d 375 (1976) (establishing that a reasonable offer of settlement operates as a complete defense to a claim under the Consumer Protection Law, Gen.L. c.93A).

 

The tenant is entitled to no relief under the Consumer Protection Law, Gen.L. c.93A.

 

6. Retaliation

 

 

The tenant claims a right to damages and a defense to the landlord’s claim for possession under the Retaliatory Eviction Laws, Gen.L. c.186 §18 and c.239 §2A.

 

The tenant appears to concede, as she must, that no statutory presumption of retaliation can arise from the tenant’s complaints to the health department which she made no earlier than June 26, 2007, after acknowledging by email on June 5, 2007, receipt of the landlord’s notice to quit given on May 30, 2007, all following the landlord’s request for assistance that he made to the health department as early as March 12, 2007.

 

The tenant contends, however, that she is entitled to the benefit of the statutory presumption because the landlord’s notice to quit was given, and this ensuing summary process action lodged against her, within six months after she complained in writing to the landlord about utility cross-connections by her email on May 10, 2006.

 

I assume without deciding that the email satisfies the “writing” requirements of the statutes; I note that an email is more like a writing than a telephone call, but less like a writing than a letter, and perhaps less than a facsimile transmission.

 

I also assume that the tenant’s email on May 31, 2007, did not waive her May 10, 2006, email complaint, although the May 31, 2007, email rather clearly indicated that both the issue of utility cross-connections and all issues of repairs were satisfactorily resolved.

 

The tenant focuses upon the partial, selective chronology: (1) that on May 6, 2007, the landlord was willing to renew the tenancy, (2) that on May 10, 2007, the tenant complained about utility cross-connections, and (3) that on May 15, 2007, the landlord told the health department that he was having his attorney serve the tenant with eviction papers. Further, the tenant argues that the landlord’s testimony at trial, that the tenant’s email on May 18, 2007 (complaining that neighboring tenants were “bratty, immature and irresponsible” and that “The two of them are just riff raff, and enjoy behaving maliciously”) simply put him “over-the-edge,” is false, untruthful “pre-text”; that the landlord’s true reason and motivation for terminating the tenant’s occupancy and seeking her eviction, which he stated to the health department on May 15, 2007, that he intended to do, is to retaliate against the tenant in reprisal for her May 10, 2007, email complaint about plumbing and electric utility cross-connections.

 

There is clear and convincing evidence, even overwhelming evidence, to the contrary. First, this landlord is not a landlord who was angered, offended, or afraid of code enforcement. It will be recalled that it was the landlord, not the tenant, who first contacted the health department, as early as March 12, 2007, in an effort to comply with housing code requirements. Second, this landlord is not a landlord who tried to avoid, or shy away from, housing maintenance obligations. It will be recalled that in response to the tenant’s “accumulated … list” of “things that

need to be fixed, repaired or replaced” the landlord responded to all of the tenant’s listed nine items — the same day. Third, this landlord is not a landlord who was vengeful, vindictive, or even callous and unsympathetic to the tenant’s personal troubles (there is of course no legal obligation to be humane or compassionate). It will be recalled that, even after the tenant lied about her prior eviction, about her prior late payments of rent, and about her address, and even after the tenant paid no last month’s rent deposit, was chronically late in her rent payments, and refused to sign and return a lease, the landlord was still willing to “work with her” and was willing to continue the rental relationship, which he stated to the tenant as late as May 6, 2007.

 

I find entirely truthful the landlord’s testimony that the tenant’s May 18, 2007, email, which threatened to drive out neighboring good rent-paying tenants, simply put him “over-the-edge,” that is, beyond the point-of-no-return. I find as the ultimate fact that the tenant’s May 10, 2007, email about utility cross-metering played no part in the landlord’s decision to evict.

 

The tenant is entitled to no relief under the Retaliatory Eviction Laws, Gen.L. c.186 §18 and c.239 §2A.

 

7. Possession

 

The landlord’s summary process action is supported by a timely, definite and unequivocal notice to quit. The tenant is not entitled to defend or counterclaim under Gen.L. c.239 §2A or §8A or otherwise.

 

Accordingly, the landlord is entitled to recover possession of the rental premises.

 

 

ORDER

 

Enter judgment for the plaintiff for $7,532 rental debt, for possession of the premises, and for dismissal on the merits of the defendant’s counterclaims, with $324 statutory costs.

 

 

 

 

 

End Of Decision

 

 

 

HOUSING COURT

PINE GROVE MOBILE PARK Plaintiff v. JEFFERY BROOKS Defendant

 

 

 

Docket # No. 07-SP-03036 No. 07-CV-00179

 

Parties: PINE GROVE MOBILE PARK Plaintiff v. JEFFERY BROOKS Defendant

 

Judge: /s/David D. Kerman

Associate Justice

 

Date: October 26, 2007

 

RULINGS AND ORDER

 

1. Notice to quit. The parties agree that Pine Grove Mobile Park’s summary process complaint was not preceded by a statutory notice to quit, only by the application for a certificate of eviction that was presented to and allowed by the City of Peabody Rent Control Board, a copy of which the owner-operator landlord furnished to the tenant.

 

That the tenancy is regulated by the Manufactured Housing Communities Law [formerly the Mobile Home Parks Law], Gen.L. c.140 §32A-§32S, does not excuse the landlord’s failure to comply with the laws governing termination of tenancies, Gen.L. c.186 §11-§12.

 

Indeed, the Law, Gen.L. c.140 §32J, Summary process to recover possession; termination of tenancy or lease, expressly provides:

 

If the manufactured home owner or person holding under him holds possession of a manufactured home site in a manufactured housing community without right, after the determination of a tenancy or other estate at will or lease as provided in this section, the licensee entitled to the manufactured home site may recover possession thereof by summary process. *** No action shall be maintained under this section unless: (1) the manufactured housing community licensee has given at least thirty days’ written notice, delivered by certified or registered mail, stating the reasons for termination and notifying the manufactured housing community resident that he has fifteen days from the date of the mailing of the notice in which to pay the overdue rent, or cure the substantial violation of the community rules or of the law or ordinance, in order to avoid eviction; *** (emphasis supplied).

 

 

Under Gen.L. c.140 §32J, and under Gen.L. c.186 §11-§12, the landlord cannot recover possession in summary process without determination of the tenancy by giving the tenant a legally sufficient thirty days’ written notice. Because the landlord has not done so, the summary process complaint must be dismissed. See, Liberty Mobilehome Sales, Inc. v. Bernard, 6 Mass.App. 914, 379 N.E.2d 1115 (1978) (rescript) (summary process case against mobile home tenant dismissed for lack of thirty days’ written notice under Gen.L. c.140 §32J).

 

 

2. Certificate of eviction. The parties agree that the certificate of eviction in this case issued on the sole ground that the tenant violated the prohibition against subleasing and renting contained at Page 2 Section 4 of the Park Rules and Regulations contract, which provides:

 

The occupancy of a mobile home is limited to the persons listed on the registration form to be filled out below, other than children born subsequent to the completion of the form. Accordingly, subleasing, loaning or renting is not permitted.

 

But the Attorney General’s Manufactured Housing Community

Regulations, 940 C.M.R. §10.03(7), Terms and Conditions of Occupancy *** (7) Sublease and Assignment, provides:

 

An operator shall not unreasonably restrict leasing of a tenant’s manufactured home or subleasing or assignment of a tenant’s interest in a manufactured home site. In addition, all restrictions imposed by the operator on tenant subleasing or assignment shall also apply to any direct leasing of homes by the operator. Moreover, an operator shall not restrict a tenant’s ability to lease his or her manufactured home and sublease the underlying manufactured home site after a discontinuance notice has been issued.

 

 

The Park Rule’s outright ban of all subleasing and renting arrangements by manufactured home owner tenants necessarily conflicts with the Attorney General’s regulation which prohibits unreasonable restriction of tenants’ manufactured home leasing and subleasing arrangements. See, Carriage Town Park Trust v. Marsters, N.E.Hsg.Ct. No. 06-SP-02620 (November 20, 2006), where the owner-operator’s outright ban of all outdoor pets violated the Attorney General’s Manufactured Housing Community Regulations, 940 C.M.R. §10.04(10), Manufactured Housing Community Rules *** Pets.

 

The Attorney General’s Manufactured Housing Community Regulations, 940 C.M.R. §10.00 et seq., are promulgated pursuant to Gen.L. c.140 §32S, and have the force of law. By operation of the Attorney General’s Manufactured Housing Community Regulations, 940 C.M.R. §10.02(2), Unfair or Deceptive Acts or Practices: General, the conflicting Park Rule is “void and unenforceable.” To the same effect is Gen.L. c.140 §32L(6), Requirements and restrictions applicable to manufactured housing communities.

 

Because the certificate of eviction in this case is not based on “substantial violation of any enforceable rule of the manufactured housing community” as required by Gen.L. c.140 §32J(2), Summary process to recover possession; termination of tenancy or lease, the certificate of eviction which issued August 31, 2007, on the sole ground that the home owner tenant violated the Park’s rule against subletting and renting must be annulled and set aside.

 

 

ORDER

 

1. In case no. 07-SP-03036, the summary process complaint is dismissed.

 

2. In case no. 07-CV-00179, the certificate of eviction issued August 31, 2007 by the City of Peabody Rent Control Board is annulled and set aside.

 

 

 

 

End Of Decision

 

HOUSING COURT

DEVON GARCIA Plaintiff v. STEVE HARTIGAN Defendant

 

 

 

 

 

Docket # No. 94-CV-00221

 

Parties: DEVON GARCIA Plaintiff v. STEVE HARTIGAN Defendant

 

Judge: /s/David D. Kerman

Associate Justice

 

Date: October 31, 2007

 

DECISION AND ORDER

 

Before the court in this action for childhood lead paint poisoning is the motion by the defendant to compel the plaintiff to pay the defendant’s expert witness Martha A. Collette, Ph.D. for time spent in attending and in preparing for her depositions.

 

The plaintiff opposes the motion on several grounds: (1) that substantial payments have already been made; (2) that the witness’ bill shows an unexplained, unauthorized, and unreasonable jump from $275 to $350 in her hourly rate; (3) that the bill shows an unexplained and unreasonable leap from her previous preparation time of 3 hours for a deposition lasting 3 hours, to more than 38 hours preparation time for a deposition lasting 2 hours; (4) that substantial portions of the time billed are not properly allocable to preparation for the depositions taken by the plaintiff but are instead allocable to her preparation of the defendant’s case; and (5) that the witness’ bill dated November 2, 2006, upon which the instant motion is based, is not supported by accurate or reliable time records.

 

I agree with each of the plaintiff’s contentions.

 

First, the defendant’s motion and the defendant’s witness’ bill do not appear to take into account the $825 and $550 payments that the plaintiff made on March 5, 2004, and September 11, 2006. [Pltf.Exh.3].

 

Second, the defendant cannot compel the plaintiff to pay fees at a rate greater than $275 per hour. The order issued in this case on May 19, 2005, required that the deposition of this witness be resumed with compensation by the plaintiff at the agreed upon rate of $275 per hour. [Pltf.Exh.4]. The plaintiff did not agree to pay another rate. The court did not order another rate. From all that appears the $350 rate is the rate that the witness would like to charge for litigation services instead of the $275 rate that she normally receives for treating patients. See, Anthony v. Abbott Labs, 106 F.R.D. 461, 464-465 (D.R.I.1985), where the court reduced an expert’s fee from $420 per hour to $250 per hour, stating in rather strong language: “[An expert] cannot be left free … to saddle his adversary with whatever price tag strikes his fancy. *** [The witness’] all-that-the-traffic-will-bear approach falls well outside the outer limits of the universe of rationally-supportable awards. *** Unless the courts patrol the battlefield to insure fairness, the circumstances invite extortionate fee-setting *** In the final analysis, the mandate of Rule 26(b)(4)(C) is not that an adverse expert will be paid his heart’s desire, but that he will be paid a ‘reasonable fee.’ *** An inquiring [party]

will not be unfairly burdened by excessive ransoms which produce windfalls for … experts. *** An extravagant rate offends the conscience of this court. *** The courts … cannot sit idly by in the face of attempts to loot the system.”

 

Third, the claimed increase in preparation time from 3 hours for a 3 hour deposition to 38.4 hours for a 2 hour deposition is fanciful. (The deposition transcript pages provided do not support the defendant’s contention that “Dr. Collette’s increased preparation time was invited by [plaintiff counsel’s] own burdensome questioning.”)

 

Fourth, the defendant’s motion and the witness’ bill clearly include time that is properly allocable to the defendant and not to the plaintiff. The witness’ bill is for $16,330, from which the defendant deducted $1,650 for a neuropsychological examination and $1,630 for time the witness spent conferring with the defendant’s attorney. After correcting arithmetic errors in the defendant’s motion (the correction was made only at the hearing of the motion, not beforehand; and then only orally, not in writing), the amount now sought from the plaintiff is $13,050. Still, it is obvious that many of the items billed (most obviously, items for services rendered in 2003, well in advance of any deposition) could not possibly be for time the witness spent preparing for her deposition.

 

Fifth, there is the troubling fact that the witness’ bill, which is stated with precision to the 10th of an hour, is not supported by any usable contemporaneous time record. The witness testified at deposition that her time record consisted only of “my appointment book and my knowledge of what I was doing on those days. It’s not formulated in terms of a record that would make sense to anybody else. *** Oh, no. There’s not a list like that. *** There is my estimation of the amount of time that I spent on it.” [Pltf.Exh.5, pp.106-107]. The result of the witness’ failure to methodically document her time is a mathematically precise, but wildly inaccurate and unreliable bill. An adverse party cannot be required to pay such a bill. See, Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 949 fn.3, 950, 951, 952 (1st Cir. 1984) (Coffin, J.), in the context of determining reasonable attorney’s fees.

 

In the circumstances, the only time of this witness that can be allocated with any degree of confidence to the plaintiff is her actual deposition time of 2 hours plus her previously estimated 3 hours time for preparation. For this time the plaintiff is obligated to provide compensation, at the previously agreed and previously ordered rate of $275 per hour. If such compensation has not already been paid, the plaintiff shall make payment forthwith. Otherwise, the motion by the defendant to compel the plaintiff to pay the defendant’s witness’ fees cannot be allowed.

 

There is another troubling issue which emerges from the instant motion. The letter dated August 30, 2007, by the defendant’s attorney to the plaintiff’s attorney states “her new policy is to not even schedule any depositions until she has received payment for the estimated time of the deposition and

estimated preparation. *** [Dr. Collette] won’t even schedule a resumption until the past-due balance of $16,300 is paid and payment is made in advance for any resumed deposition and preparation time for the resumed deposition.” [Pltf.Exh.1].

 

It is not acceptable for counsel to refuse to attend a scheduled deposition, or to acquiesce in the witness’ refusal to attend her deposition, on the basis of any such “new policy” as may have been promulgated either by the witness or by counsel. See, Anthony v. Abbott Labs, 106 F.R.D. 461, 463 (D.R.I.1985), where the magistrate judge ordered the deposition to go forward without prejudice to the defendant’s right to petition the court following the deposition for a determination as to the reasonableness of the expert witness’ fee.

 

The fact that the defendant late-listed this particular witness, out-of-time, over the plaintiff’s objection, and by leave of court, is not a mitigating circumstance but an aggravating one. If this witness now refuses to attend a court-ordered deposition, or if counsel refuses to produce her for deposition, the court will look favorably upon a motion by the plaintiff to strike the witness from the defendant’s list and to preclude her from testifying at trial.

 

 

ORDER

 

The motion by the defendant to compel the plaintiff to pay the defendant’s expert witness Martha A. Collette, Ph.D. fees for time spent in attending and in preparing for her depositions is allowed in part and denied in part in accordance with the foregoing.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

LAWRENCE YMCA Plaintiff v. ROMANUS ELGBE Defendant

 

 

 

 

Docket # No. 07-SP-03230

 

Parties: LAWRENCE YMCA Plaintiff v. ROMANUS ELGBE Defendant

 

Judge: /s/David D. Kerman

Associate Justice

 

Date: November 5, 2007

 

DECISION AND ORDER

 

1. Notice to quit. Although the tenant denies receipt of a notice to quit, and although the landlord has the burden of proof on the issue, Ryan v. Sylvester, 358 Mass. 18, 260 N.E.2d 148 (1970); Connors v. Wick, 317 Mass. 628, 59 N.E.2d 277 (1945), I find more likely than not that the notice delivered to his apartment premises on August 2, 2007, was received by him well in advance and fourteen days at least before service in hand to him of the summons and complaint on October 1, 2007. The landlord’s case is supported by an adequate and timely notice to quit.

2. Entry date. There is no merit to the tenant’s argument that because the October 8, 2007, entry date specified in the

summons and complaint was Columbus Day, which is a legal holiday under Gen.L. c.4 §7 cl.(18th), the entry date was “not a lawful entry date.” USPR Rule 2(c) provides “Entry dates for summary process actions shall be each Monday” and there is no legal prohibition against specifying a legal holiday as an entry date. The only effect of doing so is that the landlord would be allowed until the end of the next day which is not a Saturday, Sunday, or legal holiday to file and enter the papers in court. In this case, the landlord filed and entered the original summons and complaint with the sheriff’s return of service on Friday October 5, 2007, before the specified Monday October 8, 2007, entry date. The landlord’s case was properly entered.

 

3. Unpaid rent. Although the tenant denies that he owes rent, and although the landlord has the burden of proof on the issue, I find more likely than not that the tenant owes six months’ of his $91 per month share of the subsidized rent in the sum of $546 through October 31, 2007.

 

4. Other claims. The tenant complains that the records of the Secretary of the Commonwealth, Corporations Division, show that the Merrimack Valley YMCA SRO, Inc. is a “Domestic Profit Corporation”; that The Merrimack Valley Young Men’s Christian Association, Inc. is a “Nonprofit Corporation”; that one or both entities illegally receive federal money under the McKinney-Vento Homeless Assistance Act, 42 U.S.C. §11431 et seq.; that the landlord is engaged in fraud, racketeering enterprise, violation of civil rights, unfair and deceptive acts and practices, infliction of emotional distress, defamation, and wrongful eviction process; and is liable for $150,000 counterclaim money damages, sanctions, and costs.

 

The short answer to these contentions (characterized by the tenant that the landlord is a “non-existent and illegal entity”) is that they do not constitute a claim or defense that is cognizable under summary process law. See, Connors v. Wick, 317 Mass. 628, 629-630, 59 N.E.2d 277, 278 (1945) (under evidence establishing that relationship of landlord and tenant existed between the parties, defense that plaintiff held title in name of a straw was immaterial; one who enters and occupies land of another as the tenant of the latter is estopped to dispute the title of his landlord); P.F.Hall, Massachusetts Law of Landlord and Tenant (Adams & Wadsworth 4th ed. 1949), §§266-269 pp.296-301, §274 p.310 (a summary process action tries a right to possession, not a right to title of real property).

 

 

ORDER

 

Enter judgment for the plaintiff for $546 unpaid rent and possession of the subject premises and dismissal of the defendant’s counterclaims with statutory interest and costs.

 

 

 

 

End Of Decision

 

HOUSING COURT

CARRIAGE TOWN PARK TRUST Plaintiff v. DAVID MARSTERS Defendant

 

 

 

 

Docket # No. 06-SP-02620

 

Parties: CARRIAGE TOWN PARK TRUST Plaintiff v. DAVID MARSTERS Defendant

 

Judge: /s/David D. Kerman

Associate Justice

 

Date: November 19, 2007

 

DECISION AND ORDER

 

By rulings and order issued November 20, 2006, I determined: that the rent control board’s certificate of eviction has no res adjudicata effect; that the landlord’s summary process action must be dismissed under Gen.L. c.140 §32J(1) and Gen.L. c.186 §11-§12 because the action is not preceded by a legally sufficient notice to quit; that the summary process action also must be dismissed under Gen.L. c.140 §32J(2) because the action is based on a no-pet rule that the Attorney General disapproved under Gen.L. c.140 §32L(5),(6) and 940 C.M.R. §10.04(3)(b); and that the landlord’s use or employment of the disapproved rule is an unfair or deceptive act or practice under Gen.L. c.93A §2 by operation of Gen.L. c.140 §32L(7) and 940 C.M.R. §10.02(4) and §10.04(1)(a)(2).

 

The tenants’ counterclaims, for retaliatory eviction under Gen.L. c.186 §18, for violation of quiet enjoyment under Gen.L. c.186 §14, and for unfair or deceptive acts or practices under Gen.L. c.93A §2 and §9, were tried on November 2, 2007. Now, after submission of post-trial memoranda and requests for findings and rulings, I find, rule and order as follows:

 

1. Gen.L. c.233 §79G. As a threshold matter, I do not disturb my ruling at trial that the hearsay opinion letter by the tenant’s social worker dated August 10, 2007 [Pltf.Ex.23], which was prepared for purposes of this litigation, is inadmissible. Although the document conforms to the procedural requirements of Gen.L. c.233 §79G, the statute includes licensed “physicians” and “dentists” and also licensed “chiropodists, chiropractors, optometrists, osteopaths, physical therapists, podiatrists, psychologists and other medical personnel.” But it does not include licensed social workers. Accordingly, the document is not admissible under Gen.L. c.233 §79G.

 

2. Retaliation. The tenants signed a “Credit Application” dated January 15, 2004 [Pltf.Ex.9] which clearly stated, directly above their signatures, “NO DOGS ALLOWED!!” and asked “Any Pets?” to which the tenants answered “No.” The tenants gave their two dogs to friends before they moved into their mobile home at the Carriage Town Park on March 1, 2004. Some three months later the tenants’ friends could no longer care for the dogs and they were returned to the tenants at the mobile home park. Shortly afterward the dog named “Gina” died. The dog named “Champ” remains at the premises. The landlord learned about the dog in August or September 2004.

 

Later in the fall of 2004, the mobile home park tenants formed the Carriage Town Park Tenants Association and the tenants in this case were elected president and vice-president. In writing on

February 1, 2005, and at a public meeting on March 30, 2005 [Pltf.Ex.10, 11-11E], the Tenants Association requested that the landlord make repairs and improvements to the property. The landlord attended the Tenants Association meeting on March 30, 2005. The tenants claim that at the meeting the landlord reacted angrily to the existence of the Association and to the demands for repairs, and that, in retaliation, he threatened the tenants with eviction because of their dog. On all the evidence I find this not to be the case.

 

However, by letter dated April 18, 2005 [Pltf.Ex.12], the landlord’s attorney informed the tenants that, despite their representation on the “Credit Application” dated January 15, 2004 [Pltf.Ex.9] that they had no pets, it had come to the park’s attention that they had a doberman pinscher (the dog is actually a rottweiler “mixed”), that the dog is generally allowed outside, that the dog relieves himself in the area, that the tenants make no effort to pick up after the dog, that the dog is a large intimidating dog which disturbs the peace and the neighbors, and that the keeping of the dog is in violation of park rules. The letter demanded that the tenants permanently remove the dog within 15 days. A second copy of the letter advised that if the tenants did not remove the dog a certificate of eviction would be sought from the rent control board.

 

Under Gen.L. c.186 §18, the tenants are entitled to a presumption of retaliation because the April 18, 2005 [Pltf.Ex.12] letter threatening eviction on account of the dog followed within six months of the tenants’ complaints in writing on February 1, 2005 [Pltf.Ex.10, 11-11E] about repairs. The presumption is not rebutted because there is not clear and convincing evidence that the landlord would have acted in the same manner and at the same time regardless of the tenant’s complaints. Thus liability under the statute is established and the tenants are entitled to damages on their retaliation counterclaim, which under the statute shall not be less than one month’s rent or more than three months’ rent, or the actual damages sustained, whichever is greater, and costs of suit including a reasonable attorney’s fee. See, Wolfberg v. Hunter, 385 Mass. 390, 432 N.E.2d 467 (1982).

 

Relative to damages there are some aggravating facts. The tenant’s physician’s letter dated July 7, 2005 [Pltf.Ex.13] requested that the tenant be allowed to keep her pet dog, which the physician said had a tremendous therapeutic benefit from both physical and emotional standpoints in regards to her health. The tenant’s licensed social worker’s letter dated March 1, 2006 [Pltf.Ex.17] stated that the tenant’s dog Champ represents a very big part of her therapy, and that to lose Champ at this point would represent a major setback in her recovery. The tenant’s physician’s letter dated March 28, 2006 [Pltf.Ex.18] stated that the tenant is lucky to have had the benefit of a service dog for the past several years, and that continued companionship with her service dog would aid her in stress management and in maintaining her good health.

At some point, the tenants filed complaint with the

Massachusetts Commission Against Discrimination about the landlord’s refusal to allow them to keep their dog. However, the MCAD complaint was dismissed, and no claim is now made by the tenants of handicap discrimination on the basis of the dog. See, Whittier Terrace Associates v. Hampshire, 26 Mass.App. 1020, 532 N.E.2d 712 (1989) (rescript) (one cat); Majors v. Housing Authority of DeKalb, 652 F.2d 454 (5th Cir.1981) (“Sparky,” a small poodle).

 

The tenants also submitted a petition dated October 21, 2005 [Pltf.Ex.15] signed by eleven of their neighbors attesting that the dog Champ is not a health hazard to anyone, is not vicious or threatening, and does not create a nuisance or disturb the peace by barking.

 

The landlord received copies of the physicians’ and social worker’s letters and the neighbors’ supportive petition at least by the time of the rent control board hearings preceding the issuance of the certificate of eviction on April 19, 2006.

 

At trial, one of the tenants’ neighbors (who herself owns a dog, a terrier) testified that there are two other dogs in the Park (a chiwawa and a husky), and that the rottweiler Champ is not a danger but a “lovable dog.”

 

But three other neighbors testified that they disagree with this assessment, and that they object to the rottweiler dog. Two of the neighbors had complained to the landlord, one by telephone on December 6, 2005, and both by letters dated January 24, 2006 [Deft.Ex.23] and February 25, 2006 [Deft.Ex.24], that the tenants’ keeping of their dog violates park rules, that the dog is very large, that it makes a mess of the property, that on more than one occasion it was loose without a leash, that on one of those occasions it nipped at the complainant’s hand, and that the complainant regrets signing the tenants’ petition dated October 21, 2005 [Pltf.Ex.15].

 

Also, there are the further mitigating facts that the landlord’s “Credit Application” form [Pltf.Ex.9] clearly stated “NO DOGS ALLOWED!!” and that on January 15, 2004, when asked “Any Pets?” the tenants unequivocally answered “No.”

 

As an academic matter, I accept that emotional distress damages are recoverable on a statutory claim for retaliation under Gen.L. c.186 §18, as on a statutory claim for quiet enjoyment under Gen.L. c.186 §14, without the need to prove the elements of the common law prima facie tort for reckless or intentional infliction of emotional distress under Agis v. Howard Johnson Co., 371 Mass. 140, 355 N.E.2d 315 (1976). See, Homesavers Council of Greenfield Gardens, Inc. v. Sanchez, 70 Mass.App. 453, 874 N.E.2d 497 (2007).

 

But the evidence in this case does not show the sort of emotional distress damages as occurred in Homesavers Council of Greenfield Gardens, Inc. v. Sanchez, 70 Mass.App. 453, 874 N.E.2d 497 (2007). Specifically, I am not persuaded that the tenant’s need for year-long therapy resulted from the landlord’s actions as opposed to other independent causes. Further, I am mindful that

litigation-induced stress is not ordinarily recoverable as an element of damages. See, Zimmerman v. Direct Federal Credit Union, 262 F.3d 70, 79 (1st Cir. 2001) and cases cited. On all the evidence, considering the trial testimony, and the above mentioned aggravating and mitigating facts and circumstances, I find that the tenants should recover statutory damages under Gen.L. c.186 §18 equal to one month’s rent.

 

3. Quiet enjoyment. The tenant’s photographs [Pltf.Ex.21, 22, 26] show the landlord with his camera outside the tenant’s window, taking pictures of dog feces. The tenants complain that the landlord’s actions near their home were harassing and intimidating in nature and interfered with their quiet enjoyment. On all the evidence, however, I find that there was no serious and substantial interference by the landlord with the tenants’ use and enjoyment of the premises violative of quiet enjoyment. See, Doe v. New Bedford Housing Authority, 417 Mass. 273, 284-288, 630 N.E.2d 248, 254-256 (1994). See also, Rahman v. Federal Management Co., Inc., 23 Mass.App. 701, 706-707, 505 N.E.2d 548, 551 (1987).

 

4. Chapter 93A. The tenants claim multiple damages for unfair or deceptive acts or practices under the Consumer Protection Act, Gen.L. c.93A §2 and §9. To be sure, the landlord’s attempt to enforce the unenforceable rule that was disapproved by the Attorney General amounts to an unfair or deceptive act or practice within the meaning of Gen.L. c.93A §2. Still, the violation is a technical violation, arising only by force of law, Gen.L. c.140 §32L(7) and 940 C.M.R. §10.02(4) and §10.04(1)(a)(2). There is nothing inherently “deceptive” in the landlord’s no-pet rule; notice of it is conspicuously given to prospective tenants on the landlord’s preprinted “Credit Application” form [Pltf.Ex.9] which clearly stated “NO DOGS ALLOWED!!” Also, there is nothing inherently “unfair” about a rule prohibiting pets in the relatively tight quarters of the Carriage Town Park; otherwise, all of the no-pet rules used in many apartment and condominium developments would be unlawful. Moreover, although the tenants rightly point out that the landlord knew that the Attorney General on October 6, 1999, had disapproved the Carriage Town Park’s no-pet rule, the landlord attempted to enforce the rule, on advice of counsel, and with the concurrence of the rent control board, in the good faith belief that it was valid. On all the evidence, the tenants are not entitled to recover damages under Gen.L. c.93A. See, Quinn v. Rent Control Bd. of Peabody, 45 Mass.App. 357, 381-383, 384, 698 N.E.2d 911, 928, 929-930 (1998).

 

 

ORDER

 

The tenant’s requests for findings nos. 7, 12, 15-17, 19-21 are denied as incorrect; the remaining requests for findings are allowed as substantially correct. The tenant’s requests for rulings nos. 2-3, 5-6, 8, 10 are denied as incorrect; the remaining requests for rulings are allowed as substantially correct.

 

The landlord’s request for findings and rulings no. 28 [last clause] is denied as incorrect; requests nos. 6 [subsequently

amended but not materially amended], 7 [“numerous”], 20 [last clause], 21 [not generally actionable], 22 [sic “stress induced by litigation”; not generally actionable], 23 [Homesavers Council v. Sanchez, 70 Mass.App. 453, 874 N.E.2d 497 (2007)], 26 [“not support”; warrant but do not require] are denied as incomplete or misleading; requests nos. 13-14, 19 are denied as irrelevant; the remaining requests are allowed as substantially correct.

 

Counsel shall settle the form of order or judgment on 14 days notice.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

CMJ MANAGEMENT COMPANY Plaintiff v. EBERECHI OMOREGI Defendant

 

 

 

 

Docket # No. 07-SP-03562

 

Parties: CMJ MANAGEMENT COMPANY Plaintiff v. EBERECHI OMOREGI Defendant

 

Judge: /s/David D. Kerman

Associate Justice

 

Date: December 12, 2007

 

DECISION AND ORDER

 

The tenant Eberechi Omoregie and her five children live at the King’s Lynne Apartments under a regulatory “Occupancy Agreement” prescribed by the Massachusetts Housing Finance Agency and under a project-based subsidy provided by the Massachusetts Rental Voucher Program.

 

Sometime in the late afternoon of July 30, 2007, the tenant’s teenage daughter Ebiere Stacey Omoregie and her teenage friend broke and entered a neighbor’s apartment and stole several items of personal property.

 

The “Management” agent of King’s Lynne (which is the lessor of the “Resident” for the “Owner” King’s Lynne Apartments Company) brings this summary process action against the tenant due to her daughter’s criminal act which violated Paragraph F.13 (and other) provisions of the Occupancy Agreement.

 

The parties agree that the doctrine of Hodess v. Bonefont, 401 Mass. 693, 519 N.E.2d 258 (1988) applies in this case, and that the sole issue is whether the tenant could have foreseen and averted her daughter’s misconduct, such that under Paragraph G.10.b of the Occupancy Agreement the failure of the tenant to prevent her daughter’s misconduct constitutes “material noncompliance” with the Occupancy Agreement.

 

I find and conclude that it does not, for the following reasons:

 

1. The tenant, who is a Certified Nursing Assistant, is gainfully employed, and she earns $13.00 per hour for her work at a local nursing home. She works full time (or more than full time), from 6:00 a.m. until 2:45 p.m., and sometimes from 7:00 p.m. until 3:00 a.m.

 

 

2. The tenant is a single working mother, but she does not leave her children unattended. The children’s maternal grandmother cares for the children during the tenant’s working hours, when the children are not at school or at organized educational and recreational programs and events.

 

3. In the months preceding the incident, Ebiere suffered an “attitude” problem, in that she “talked back” to her mother, was disobedient, and began to perform poorly in school. However, there was little indication of serious difficulty, and there was no warning that an incident as serious as that which did occur on July 30, 2007, might occur.

 

4. At 3:00 p.m. on July 30, 2007, the tenant believed (and had every reason to believe) that her daughter was attending the “Raw-Art” youth education program classes in which she was enrolled. Instead, however, the tenant’s daughter and her friend “skipped” the Raw-Art program class, and later that afternoon committed the unlawful act here at issue.

 

5. Since the time of the July 30, 2007, incident, the tenant has enlisted the assistance of her brother Ogwura and of her sister Ann to help in supervising and caring for the children. Ebiere’s uncle Ogwura works for the Division of Youth Services and has told Ebiere and her mother that he will “turn her in himself” if Ebiere misbehaves.

 

6. Since the time of the incident, the tenant has petitioned the Lynn Juvenile Court for “Stubborn Child” or “Child in Need of Services” assistance under Gen.L. c.119 §21. In that proceeding, the court determined that the matter should be handled “by informal assistance without a trial on the merits” so long as the daughter obeys a six o’clock p.m. curfew every night, behaves at home, obeys all reasonable rules at home, and cooperates with her supervision by the court’s probation officer.

 

7. Ebiere, who will be fifteen years of age next month, and who is “doing better” in her ninth grade academic school work, participates in her school’s chorus program on Monday afternoons, and in her school’s African-American studies program on Thursday afternoons. She is considering participating in her school’s winter track athletic program five days a week.

 

8. The July 30, 2007, incident was an isolated incident, as there has been no other criminal act or misbehavior by any member of the tenant’s household, and there has been no other eviction case or “Notice to Quit” lodged against the tenant during the two and one-half years of her occupancy.

 

9. The same or similar misconduct as occurred on July 30, 2007, will not likely be repeated.

 

ORDER

 

Enter judgment for the defendant dismissing the complaint.

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

DERRICK GRIFFITH Plaintiff v. MARK MESSINA Defendant

 

 

 

 

Docket # No. 07-CV-00065

 

Parties: DERRICK GRIFFITH Plaintiff v. MARK MESSINA Defendant

 

Judge: /s/David D. Kerman

Associate Justice

 

Date: December 20, 2007

 

RULING AND ORDER

 

The complaint in this case alleges that the plaintiff, who was a guest of the tenant of residential premises owned by the defendants, fell and was injured as the result of a defective step which the defendants negligently failed to repair. The plaintiff seeks to amend the complaint to restate a count for negligence and to add a count for breach of warranty of habitability. The defendants oppose the amendment on grounds that the amendment would be futile in that it fails to state a claim upon which relief can be granted, MRCvP Rule 12(b)(6), because the common law implied warranty of habitability, which is contractual in nature, extends only to a tenant and does not extend to a tenant’s visitor, invitee, or guest.

 

The defendants rely on the ruling in Sullivan v. H.H. Gilbert Management Corp., Middlesex Superior Ct. No. MI-CV-93-04818 (Borenstein, J., May 16, 1997), that the lessor’s contract-based obligation to provide the lessee with a habitable premise creates no liability for bodily injuries caused to the tenant’s guest. The defendants also point out that there is no warranty of habitability with respect to a homeowner and a social guest. Egenlauf v. Brown, Worcester Superior Ct. No. WO-CV-94-01040, 1996 WL 1186833 (Sosman, J., January 5, 1996). The plaintiff relies on the ruling in Mitchell-Gionet v. Markowski, Worcester Superior Ct. No. WO-CV-93-00903, 3 Mass.L.Rptr. 45, 1994 WL 878955 (Toomey, J., November 9, 1994), that a lessor’s liability for bodily injuries under the warranty of habitability extends not only to a tenant but also to the tenant’s guest. The Massachusetts appellate courts have not ruled directly upon the issue.

 

After considering the oral and written arguments by counsel, I overrule the defendants’ objection and allow the plaintiff’s amendment, consistent with my decision in Rivera v. Lawrence Housing Authority, N.E.Hsg.Ct. No. 95-CV-00057 (January 29, 1999), at fn.1. My reasons are two-fold.

 

First, from the standpoint of legal theory, the duties imposed by the habitability doctrine are codes-based, not contract-based, and are imposed upon, not derived from, the residential leasing contract. See, Boston Housing Authority v. Hemingway, 363 Mass. 184, 199, 213-214, 293 N.E.2d 831, 843, 851 (1973); Crowell v. McCaffrey, 377 Mass. 443, 451, 386 N.E.2d 1256, 1261-1262 (1979); Berman & Sons, Inc. v. Jefferson, 379 Mass. 196, 199-200 fn.6, 202-203 fn.11, 396 N.E.2d 981, 984 fn.6, 986 fn.11 (1979); Young v. Garwicki, 380 Mass. 162, 168, 402 N.E.2d 1045, 1049 (1980). Indeed, the duties imposed by the common law implied warranty of

habitability are imposed by force of law –– even if the lease contract itself purports to repudiate obligations required by the housing codes. See, Berman & Sons, Inc. v. Jefferson, 379 Mass. 196, 199-200 fn.6, 202-203 fn.11, 396 N.E.2d 981, 984 fn.6, 986 fn.11 (1979); Leardi v. Brown, 394 Mass. 151, 156-157, 474 N.E.2d 1094, 1099-1100 (1985). Thus, the nature and scope of the landlord’s duties under the residential housing lease with respect to defective conditions upon the leased premises are determined with reference to the residential housing codes.

 

With reference to the housing lease, the purpose of a residential leasing arrangement is to provide a home, and it cannot be disputed that a home is intended to be a place where the lessee can safely invite social guests. Thus, it cannot be reasonably disputed that a reasonable landlord should reasonably foresee that a tenant might invite a guest into the home. See, Lindsey v. Massios, 372 Mass. 79, 360 N.E.2d 631 (1977) (upholding liability for injuries to a tenant’s guest who fell on a negligently maintained common stairway); Young v. Garwicki, 380 Mass. 162, 402 N.E.2d 1045 (1980) (upholding liability for injuries to a tenant’s guest who fell from a negligently maintained porch). With reference to the housing codes, a tenant’s guest is among the persons intended to be protected. See, Department of Public Health, State Sanitary Code, Chapter II, “Minimum Standards of Fitness for Human Habitation,” 105 C.M.R. §410.001 “Purpose” (“The purposes of 105 CMR 410.000 are to protect the health, safety and well-being of the occupants of housing and of the general public ….”); 105 C.M.R. §410.700 “Inspectors Duty to Classify Violations” (“conditions which may endanger or materially impair the health or safety, and well-being of an occupant or the public”); 105 CMR §410.750 “Conditions Deemed to Endanger or Impair Health or Safety” (“conditions which may endanger or impair the health, or safety and well-being of a person or persons occupying the premises *** items which are deemed to always have the potential to endanger or materially impair the health or safety, and well-being of the occupants or the public”). And it is well established that “while the violation of a safety statute, ordinance or regulation is not conclusive on the issue of civil liability, it is evidence of negligence on the part of a violator as to all consequences that the statute, ordinance or regulation was intended to prevent.” See, Perry v. Medeiros, 369 Mass. 836, 841, 343 N.E.2d 859, 862 (1976). Thus, the nature and scope of the lessor’s duties with respect to defective housing conditions upon the leased premises, as defined both by the residential housing lease and by the residential housing codes, extend naturally and logically not only for the protection of the lessee but also for the protection of the lessee’s guest.

 

Second, from the standpoint of legal precedent, it seems unlikely that the Supreme Judicial Court would, in the law of habitability, revive the doctrine of privity of contract and reconstruct the same plaintiff-status distinctions which the Court abolished in the law of negligence. See, Mounsey v. Ellard, 363 Mass. 693, 297 N.E.2d 43 1973) (holding that a landowner as an occupier of land owes a common duty of reasonable care to all lawful visitors, including business invitees and social licensees

or guests). See, King v. G & M Realty Corp., 373 Mass. 658, 660-661, 370 N.E.2d 413, 414-415 (1977) (upholding liability for injuries to a tenant who fell on a negligently maintained common stairway), where the Court stated that the ruling in Lindsey v. Massios, 372 Mass. 79, 360 N.E.2d 631 (1977) (upholding liability for injuries to a tenant’s guest who fell on a negligently maintained common stairway) was “as a corollary of a series of decisions since Hemingway.”

 

Thus, I conclude that the law permits a tenant’s guest to maintain an action for personal injuries under the implied warranty of habitability and that the plaintiff’s motion to so amend the complaint should be allowed.

 

***

 

Unlike other courts, e.g., Sargent v. Ross, 113 N.H. 388, 308 A.2d 528 (1973), the Massachusetts Supreme Judicial Court has effected changes in the law of premises liability “by successive steps” and not by reformulating large, general changes. King v. G & M Realty Corp., 373 Mass. 658, 661 fn.5, 370 N.E.2d 413, 415 fn.5 (1977); Crowell v. McCaffrey, 377 Mass. 443, 446-448, 386 N.E.2d 1256, 1259-1260 (1979). In Crowell the Court upheld a cause of action for personal injuries caused by breach of warranty of habitability in the ordinary residential tenancy at will. In Berman & Sons, Inc. v. Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979) the Court upheld liability for rent abatement for breach of warranty of habitability despite the landlord’s lack of fault and reasonable efforts to repair. It is clear that for rent abatement under the warranty of habitability the landlord’s liability is strict liability and that “Considerations of fault do not belong in an analysis of warranty.” Berman & Sons, Inc. v. Jefferson, 379 Mass. 196, 200, 396 N.E.2d 981, 984 (1979). However, it remains an open question whether premises liability for personal injury under the warranty of habitability is strict liability or whether such liability is subject to a negligence standard. See, Crowell v. McCaffrey, 377 Mass. 443, 452, 386 N.E.2d 1256, 1262 (1979); Berman & Sons, Inc. v. Jefferson, 379 Mass. 196, 200 fn.7, 201 fn.9, 396 N.E.2d 981, 984 fn.7, 985 fn.9, (1979); Young v. Garwicki, 380 Mass. 162, 170 fn.9, 402 N.E.2d 1045, 1050 fn.9 (1980). In this respect, the law of premises liability is still in a state of flux, and the relationship between the law of warranty and the law of negligence is not finally settled. See, Jeffrey C. Melick, The Standard of Care in Warranty of Habitability Cases, 82 Mass.L.Rev. 187 (1997); John M. Greaney, Developing Duties of a Landlord with Regard to Tenant Safety, 63 Mass.L.Rev. 61 (1978).

 

There are indications that a negligence standard applies. See, Ayala v. Boston Housing Authority, 404 Mass. 689, 703-704, 536 N.E.2d 1082, 1091 (1989), stating “There is essentially little difference between the elements of proof in a tort action for personal injury and a contract action for the same. The duty of the defendant is the same whether the action is in tort or in contract.”; Young v. Garwicki, 380 Mass. 162, 169, 402 N.E.2d 1045, 1049 (1980), quoting with approval Sargent v. Ross, 113 N.H. 388, 397-398, 308 A.2d 528, 534 (1973), which established a “reasonable

care” standard; Crowell v. McCaffrey, 377 Mass. 443, 452, 386 N.E.2d 1256, 1262 (1979), suggesting “a negligence standard” and a duty of “reasonable care” in the context of implied warranty premises liability, but stating “We do not pass on the question whether such a finding is essential to liability.” And see, Sargent v. Ross, 113 N.H. 388, 396-399, 308 A.2d 528, 533-535 (1973), stating that the general duty of reasonable care henceforth to be shared by landowners “springs naturally and inexorably” from the case of Kline v. Burns, 111 N.H. 87, 276 A.2d 248 (1971) which held that there is an implied warranty of habitability in an apartment lease transaction.

 

I note that in other states there is an almost universal rejection of strict premises liability. See, e.g, Peterson v. Superior Court, 10 Cal.4th 1185, 43 Cal.Rptr.2d 836, 899 P.2d 905 (1995), overruling Becker v. IRM Corp., 38 Cal.3d 454, 213 Cal.Rptr. 213, 698 P.2d 116, 48 ALR4 601 (1985); Dwyer v. Skyline Apartments, Inc., 123 N.J.Super. 48, 301 A.2d 463 (1973), aff’d 63 N.J. 577, 311 A.2d 1 (1973) (per curiam). See generally, Mark S. Dennison, “Cause of Action for Breach of Implied Warranty of Habitability in Residential Lease,” 25 Causes of Action 493 (2007), §28. Personal injury damages; Francis M. Dougherty, Annotation, “Strict Liability of Landlord for Injury or Death of Tenant or Third Person Caused by Defect in Premises Leased for Residential Use,” 48 ALR4 638 (1986); Annotation, “Recovery, under Strict Liability in Tort, for Injury or Damage Caused by Defects in Building or Land,” 25 ALR4 351 (1983).

 

In any event, because the relationship between the law of warranty and the law of negligence is not entirely settled, counsel may wish to consider a special verdict or special questions. See, Young v. Garwicki, 380 Mass. 162, 163 fn.1, 402 N.E.2d 1045, 1046 fn.1 (1980).

 

 

ORDER

 

The plaintiff’s motion to amend the complaint is allowed.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

CHRISTOPHER TODISCO Plaintiff – v.- PEABODY HOUSING AUTHORITY Defendant

 

 

 

Docket # No. 07-CV-00233

Parties: CHRISTOPHER TODISCO Plaintiff – v.- PEABODY HOUSING AUTHORITY Defendant

 

Judge: /s/David D. Kerman

 

Associate Justice

Date: February 19, 2008

ORDER

 

As there exists, after amendment of the Massachusetts Tort Claims Act, Gen.L. c.258 §3, by St.1987 Ch.343 Sec.1, a substantial question as to application of the doctrine of Harker v. City of Holyoke, 390 Mass. 555, 457 N.E.2d 1115 (1983), and thus as to subject matter jurisdiction of the Housing Court, over the complaint, which claims damages for personal injuries due to negligence and breach of warranty of habitability on the part of the public housing authority, this matter is referred to the Chief Justice of the Housing Court and to the Chief Justice of the Trial Court, for inter-departmental assignment or transfer under Gen.L. c.211B §9, and the doctrine of Konstantopolous v. Whateley, 384 Mass. 123, 424 N.E.2d 210 (1981), or for other disposition in accordance with law.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

KRISTI L. DEVINE Plaintiff – v.- BARBARA FOSTER Defendant

 

 

 

Docket # No. 07-CV-00254 No. 07-CV-00262 No. 08-SP-00014

Parties: KRISTI L. DEVINE Plaintiff – v.- BARBARA FOSTER Defendant

 

Judge: /s/David D. Kerman

Associate Justice

Date: February 22, 2008

DECISION AND ORDER

 

In April 2007 the tenants in this case responded to the landlord’s CraigsList internet posting for rental of a single family home in West Newbury. Thereafter, on May 3, 2007, and May 12, 2007, the parties signed a residential lease for a one year term beginning June 1, 2007, at $1,895 per month rent.

 

The leased premises consist of a single family dwelling which the landlord calls the “carriage house.” The “carriage house” adjoins another single family dwelling which the landlord calls the “unfinished house” (or her “dream house”), which is situated on the same parcel of land as the “carriage house.”

 

Although the form of the Massachusetts Association of Realtors lease which the landlord provided is captioned “STANDARD RESIDENTIAL LEASE (Fixed Term)” there appears in Paragraph 22 “Additional Provisions” of the document the typewritten term “Landlord reserves the right to sell the premises if during the term of this lease the premises is sold this lease shall terminate as of the 30th day following date that closing occurs and it is expressly agreed that tenants possession of the premises is released at the time of the closing of said sale.” There also appears the handwritten term “This annual lease is self renewing under the same terms and provisions unless either party provides written notice to terminate tenancy 90 days prior to lease expiration.” There is no indication by the parties that the property is to be sold, and there is no indication that either party has given notice of termination under Paragraph 22.

 

The CraigsList posting advertised the rental at $1,795 per month, and stated “[x] cats OK purr purr” and “[x] dogs OK woof woof.” Paragraph 14 “Animals/ Pets” of the lease prohibits pets without written permission of the landlord. The lease provides for rent at $1,895 per month, $100 more than the landlord had advertised at the CraigsList internet site. The tenants agreed to the increased rent in exchange for the landlord’s agreement to regrade the surface of the driveway and to provide snow-plowing services.

 

Early relations between the parties were cordial, even congenial. The landlord frequently visited the premises, beginning on June 2, 2007, after the tenants moved in on June 1, 2007, to attend to her unfinished house, to garden at the leased premises, and to visit with the tenants and their teenaged daughter who owns a pet bird, a pet cat, and two pet dogs. However, friction soon developed because the landlord visited the premises without notice, for hours at a time, and as often as two or three times a week. As

the summer and autumn months progressed, the tenants increasingly found the landlord’s unannounced, lengthy, and frequent visits to be burdensome and intrusive to their privacy. Also, the tenants came home from time to time to find mud in the bathroom and towels on the floor, which they attributed to the landlord.

 

Before moving in on June 1, 2007, the tenants paid $1,895 on May 3, 2007, for a security deposit, and on May 16, 2007, they paid a last month’s rent deposit and first month’s rent, each in the amount of $1,895. Thereafter, the tenants timely (on June 29th) paid rent for July by their check no. 2205 for $1,895, and (on July 30th) paid rent for August (minus $226.11 expenses) by their check no. 2226 for $1,668.89. The landlord objected to the tenants’ deductions, although $201.31 portion was for the landlord’s electric bill [1] and $24.80 portion was for a lawn mower charger appliance that the landlord had authorized. However, the landlord deposited the tenants’ check no. 2205 on July 5, 2007, and she deposited check no. 2226 on August 13, 2007, both without restriction.

 

The tenants timely (on August 31st) paid rent for September by their check no. 2258 for $1,895. The landlord, however, falsely claimed that she did not receive it. The tenants timely (on September 28th) paid rent for October by their check no. 2288 for $1,895, and they also paid a replacement check for rent for September by their check no. 2289 for $1,895. The landlord deposited both checks on October 2, 2007. The tenants timely (on November 1st) paid rent for November by their check no. 2317 for $1,895, which the landlord deposited on November 15, 2007.

 

__________________

 

[1] On July 30, 2007, representatives of the National Grid company appeared unexpectedly at the premises to terminate the landlord’s electric services at the “unfinished house.” The tenants paid the landlord’s outstanding bill of $201.31 in order to prevent termination of the landlord’s electrical services.

 

 

On November 10, 2007, the tenants’ cooking stove and oven failed to work, and the parties clashed. The stove failed to work because the stove’s wall outlet receptacle was defective and failed. When the tenants reported the problem, the landlord and her agent responded by moving the stove and adjusting the wall plug which they said was halfway out of the wall outlet. However, later that day the stove failed again, and the wall outlet then sparked and burned. The West Newbury Fire Department “red-tagged” the stove, an appliance repairman was unable to fix the problem, and an electrician finally repaired and replaced the wall outlet receptacle on November 14, 2007. The tenants were without cooking stove and oven facilities for four days from November 10, 2007, until November 14, 2007.

 

The landlord claimed, both in November 2007 and at trial, that the receptacle failed, sparked, and burned because of the tenants’

misuse, by leaving the plug halfway out of the receptacle and then spilling food or other substances onto it. I find as fact that this was not the case, and that nothing the tenants did or neglected to do caused the stove to fail. With an undated letter sent in late November the tenants paid rent for December by their check no. 2333 for $1,638, deducting from the $1,895 contract rent $252 at $63 per day for the four days period when they were without cooking facilities. I find as fact and conclude as a matter of law that the tenants’ deduction of $252 portion of their rent was appropriate and lawful.

 

The tenants’ letter also complained: (1) that snow plowing services had not been provided as represented and agreed; (2) that service and maintenance of the well water filtration system was the landlord’s sole responsibility; and (3) that their security deposit had not been placed in escrow as required. The letter stated that the tenants would reserve the right to use the security deposit as payment of rent during the lease period.

 

By letter dated December 4, 2007, the landlord demanded: (1) that the tenants remove their pets from the premises because “your animals are in excess of the provisions of the lease”; (2) that the tenants pay $330 for repair of the stove; (3) that the tenants provide a W-9 form (which she claimed was required by the bank for the security deposit) and an insurance binder; (4) that maintenance of the water treatment system was the tenants’ responsibility; and stated: (5) that the tenants’ December rent payment [check no. 2333] had not been received and “to avoid eviction proceedings” she had deposited the tenants’ check no. 2172 [sic, check no. 2258] which they had provided earlier in the fall; and (6) that the landlords needed to have returned certain items of personal property which remained at the leased premises.

 

On the same day, December 4, 2007, the landlord altered and deposited the tenants’ August 31, 2007 check no. 2258 for $1,895 rent for September (which the landlord had falsely claimed that she did not receive, and which the tenants had replaced on September 28, 2007, by their check no. 2289 for $1,895), by changing the date of the check “8-31-07” to “12-1-07” and by adding the annotation “December rent” to the face side of the check.

 

On December 10, 2007, for a fee of $20, the tenants placed a “Stop Payment Notice” on the December rent check no. 2333 for $1,638 which the landlord now claimed that she did not receive. I find as fact that the landlord did receive and is now in possession of the tenants’ check no. 2333 for $1,638, and that the landlord’s testimony at trial denying those facts was untruthful.

 

At 12:00 noon on December 10, 2007, the landlord telephoned the tenants to inform them that she would come to inspect their home at 5:00 p.m. that day. The tenants refused, and the conversation became contentious. The landlord ended the conversation by stating “It’s my house and I’ll do what I want” and by hanging up the phone.

 

In the early afternoon of December 10, 2007, a woman

telephoned the Pentucket High School where the tenants’ seventeen-year old daughter was enrolled as a junior, and asked the school officials to provide “needed information” about the student which “she had forgotten to fill in on a form for a photography contest that she had entered.” The call was a ruse, as the tenants’ daughter had not entered any such photography contest. The school officials refused to furnish information about the student, and instead summoned the student to the school guidance office to answer the telephone. However, the caller refused to speak with the student, and the caller also refused to give her own name or telephone number or to otherwise identify herself. I find as fact that the landlord was the caller, and that her testimony at trial denying that fact was untruthful.

 

Later in the afternoon of December 10, 2007, the tenant complained to the West Newbury Police Department about the landlord’s telephone call to the school and also about the landlord’s continuous letters and telephone calls and attempts to enter the tenants’ home. The police officer on duty advised the tenant to seek the assistance of the housing court.

 

On December 11, 2007, the landlord filed a verified complaint with this Court (case no. 07-CV-00254) seeking the removal of the tenants’ pets.

 

On December 12, 2007, the tenant filed a verified complaint for quiet enjoyment under Gen.L. c.186 §14 with the Newburyport District Court. That day, a judge of that Court issued a temporary restraining order “to include plaintiff’s daughter and school” and scheduled a hearing in the matter for December 20, 2007.

 

On the afternoon of December 15, 2007, the landlord and three other persons appeared unannounced at the tenants’ home and demanded to enter, which the tenants refused. At that time, the landlord served the tenants with the verified complaint she had filed in this Court, and also with a Seven Day Notice to Terminate Lease and a letter demanding to enter the premises to perform an inspection, each dated December 14, 2007. Over the tenants’ objections the landlord attempted to record the parties’ verbal exchanges with a tape recorder. The tenants then called the police, and the landlord and her companions left the premises.

 

On December 17, 2007, the tenant filed a complaint for contempt with the Newburyport District Court, and a judge of that Court scheduled the matter for hearing on December 20, 2007. Informed that the landlord’s case no. 07-CV-00254 was scheduled for hearing in this Court on the same day, the district judge ordered that the tenant’s case be transferred to this Court. On December 18, 2007, the tenant’s case was so transferred to this Court as case no. 07-CV-00262.

 

On December 20, 2007, the parties appeared before this Court but attempts to mediate their differences were unsuccessful. On the next day December 21, 2007, the parties returned to court for hearing on their pending cross-motions.

 

 

In open court on December 21, 2007, the tenant filled out and delivered to the landlord a W-9 form, identifying herself and listing her social security number. That afternoon, on December 21, 2007, the landlord opened an escrow account at the Sovereign Bank, listing the tenant as beneficiary, into which she says she placed the tenants’ security deposit. However, the social security number listed on the bank account form is not the tenant’s social security number listed on the W-9 form. There is no indication to date that the landlord has complied with the receipt and notification requirements of the Security Deposit Law, Gen.L. c.186 §15B(2)(b), (3)(a).

 

After hearing on December 21, 2007, the parties entered into a Stipulation filed with this Court, which: (1) required the tenants to not enter the unfinished house; (2) allowed the landlord to use or visit the unfinished house as reasonably needed; (3) required the landlord and her agents to remove her personal belongings from the carriage house and from the garage on Saturday December 22, 2007, between the hours of 12:00 noon and 4:00 o’clock p.m.; and (4) required the landlord and her agents to not approach the tenants or their family, but to identify themselves, and to avoid and not enter the tenants’ residence.

 

On Saturday December 22, 2007, at 12:09 p.m. a police officer from the West Newbury Police Department arrived at the tenants’ residence to prevent any breach of the peace. The landlord, however, arrived at the scene only at 3:41 p.m. While the landlord was present the tenants stayed inside their house. According to the police officer (whose testimony I credit) the landlord was “aggressive” and “irate,” refused to show any identification, and asked the officer to help her carry her belongings from the garage to her car (which the officer refused). The police officer informed the landlord that she was “allowed nowhere in the house” and prevented her from entering it. The landlord retrieved a few belongings from the garage and left the scene at around 4:00 p.m.

 

By letter to the landlord dated December 30, 2007, the tenants enclosed their check no. 2368 for $1,418 for January’s rent (again deducting $252 for lack of cooking facilities on November 10-14, 2007, and also deducting $225 for the cost of snow plowing for three storms at $75 per storm). The letter also requested that the landlord return their check no. 2333 for $1,638 for December’s rent which the landlord was holding without deposit. The landlord did not return the tenants’ check no. 2333. She deposited check no. 2368 on January 11, 2008, after annotating both sides of the check “Accepted as Partial Payment for January rent only.”

 

On New Year’s Eve, December 31, 2007, the landlord had the tenants served with a Summary Process Summons and Complaint (case no. 08-SP-00014). On that day, the landlord personally accompanied the constable to the tenants’ home. The tenant called the police. When the police officer arrived, the landlord falsely claimed that the tenant had entered her unfinished house, and asked the officer to handcuff and arrest the tenant (which the officer refused). The police prevented the landlord from entering the tenants’ home or from coming within twenty feet of it. The landlord took various

photographs, attempted to mark off portions of the yard with yellow caution tape, and attempted to tape record her verbal exchanges with the police officer. The police officer then instructed the landlord to leave, which she did at about 4:30 p.m. The tenant reported the incident to the police in writing the next day, January 1, 2008.

 

On January 4, 2008, the landlord filed and entered her Summary Process Summons and Complaint with this Court (case no. 08-SP-00014).

By letter dated January 8, 2008, the landlord informed the tenants: (1) that they were in default of payment for January’s rent; (2) that the $252 and $225 deductions from rent were not authorized and inappropriate; (3) that snow plowing the driveway was the tenants’ responsibility; (4) that their snow plow operator had damaged the gardens, lawns, and septic system; and (5) that their December’s rent check [no. 2333 for $1,638] was never received. There was no truth to any of these statements.

 

These cases were tried, jury waived, on a consolidated basis, and testimony was taken on five separate days: January 17, 2008, January 24, 2008, January 25, 2008, January 28, 2008, January 30, 2008. On all the credible evidence, I make findings of fact, conclusions of law, and order for judgment as follows.

 

1. Breach of lease. The landlord makes various claims that the tenants breached the lease. These claims are utterly false and without merit. As described above, the tenants’ rents are all fully paid (indeed, they are overpaid), their deductions from rent were entirely proper, and there have been no late rent payments. (By way of illustration, the landlord supported her claim that the tenants were chronically late in their payments of rent by her letter dated January 8, 2008, which states “As has been the on going pattern, I did not receive your rent on the first of the month when due” and by her testimony that she received the tenants’ rent for January 2008 only on January 2, 2008.)

 

As to the landlord’s claim that the tenants’ keeping of pets is in breach of the lease, the CraigsList posting described above (“[x] cats OK purr purr” and “[x] dogs OK woof woof”) satisfies the “written permission” requirement of Paragraph 14 “Animals/ Pets” of the Lease. See, Basis Technology Corp. v. Amazon.com, Inc., 71 Mass.App. 29, 878 N.E.2d 952 (2008) (email communications formed binding agreement). Furthermore, the landlord, who herself owns a pet dog and two cats, often played with the tenants’ daughter’s pets in an approving manner, as early as June 2, 2007, the day after the tenants moved in, and also on several specific occasions during the month of October 2007. By words and conduct beginning on June 2, 2007, and then by total silence until her letter dated December 4, 2007, when she first raised an objection, the landlord waived the written permission condition of the lease, and she also waived any term or condition of the lease prohibiting pets.

 

There is no credible evidence that the tenants committed waste damages to the premises or that they breached Paragraph 9 “Cleanliness/ Alterations/ Repairs” or Paragraph 10 “Parking” of

the lease. Specifically, there is no truth to the landlord’s claims that the tenants misused the cooking stove and oven, that their pets damaged the floors and carpets, that the tenants “left the lawn to go to seed,” or that their snow plow operator damaged the gardens, lawns, and septic system.

 

Finally, there is no obligation on the part of the tenants under Paragraph 13 “Insurance” of the lease to provide insurance coverage for the benefit of the landlord. The insurance clause provides “The tenant shall have the obligation to procure and maintain any insurance covering personal property of tenant from fire or other casualty.” The clause merely places the tenants on notice that insuring the tenants’ own personal property is the tenants’ responsibility, not the responsibility of the landlord. That the tenants obtained a renter’s insurance policy effective on October 2, 2007, after they moved in on June 1, 2007, did not breach any obligation owed to the landlord.

 

The tenants are entitled to judgment dismissing on the merits the landlord’s complaints, in equity no. 07-CV-00254 for removal of the tenants’ pets, in counterclaim no. 07-CV-00262 for waste damages, and in summary process no. 08-SP-00014 for eviction of the tenants.

 

2. Retaliatory eviction. There is no doubt in this case that the landlord engaged in unlawful reprisal and retaliation, and that her eviction suit was an unlawful retaliatory eviction.

 

Well within six months after the tenants commenced their action no. 07-CV-00262 and obtained injunctive relief protecting their quiet enjoyment on December 12, 2007, the landlord prepared her Seven Day Notice to Terminate Lease dated December 14, 2007, delivered it to the tenants on December 15, 2007, and commenced her eviction suit no. 08-SP-00014 by service of her Summary Process Summons and Complaint to the tenants on December 31, 2007.

 

The tenants are therefore entitled under the Retaliatory Eviction Law, Gen.L. c.186 §18, to the benefit of a rebuttable presumption that the landlord’s notice of termination of tenancy and summary process complaint were an unlawful reprisal, which presumption can be rebutted only by clear and convincing evidence that the landlord’s action was not a reprisal, that the landlord had sufficient independent justification for taking such action, and that the landlord would have in fact taken such action, in the same manner and at the same time the action was taken, regardless of the tenants engaging in, or the landlord’s belief that the tenants had engaged in, their protected activities.

 

There is in this case no such clear and convincing evidence as might be sufficient to rebut the presumption. Indeed, there is overwhelming evidence to the contrary. It is significant that nothing at all occurred in the two days time from December 12, 2007, when the tenants obtained their temporary restraining order, until December 14, 2007, when the landlord prepared her notice purporting to terminate the tenancy, or in the three days time until December 15, 2007, when the landlord delivered her

termination notice to the tenants. It is significant also that the landlord’s eviction suit was utterly false and groundless, and that her conduct throughout this litigation was spiteful, vexatious, malicious, and in bad faith.

 

Under the Retaliatory Eviction Law, Gen.L. c.186 §18, the landlord is liable for damages in an amount not less than one month’s rent and not more than three months’ rent (or the actual damages sustained by the tenant, whichever is greater). The evidence in this case shows that the landlord’s retaliatory conduct caused the tenants damage and injury, but does not show the extent of the tenants’ actual damages. The landlord’s retaliatory conduct in this case was especially egregious. Accordingly, I find that the tenants are entitled to recover $5,685 in retaliation damages, an amount equal to three months’ rent, which is the maximum amount allowed by the statute.

 

3. Quiet enjoyment. There is no doubt that the landlord violated the tenants’ rights to quiet enjoyment.

 

I attach no significance to the landlord’s unannounced, lengthy, and frequent visits during the summer and autumn months of the tenancy. Although burdensome, those intrusions did not rise to the level of a violation of quiet enjoyment.

 

Also, the lack of cooking facilities during the four day period from November 10, 2007, until November 14, 2007, did not give rise to a cause of action in quiet enjoyment. Although the failure of the cooking stove and oven substantially impaired the value of the leased premises, the tenants compensated themselves in habitability damages for the diminished value of the premises by deducting $252 from the contract rent. Moreover, there is no showing that negligence on the part of the landlord caused the stove and oven to fail. See, Al-Ziab v. Mourgis, 424 Mass. 847, 679 N.E.2d 528 (1997).

 

Nor did a cause of action for quiet enjoyment arise from the landlord’s letter dated December 4, 2007, wherein the landlord demanded: (1) that the tenants remove their pets from the premises because “your animals are in excess of the provisions of the lease”; (2) that the tenants pay $330 for repair of the stove; (3) that the tenants provide a W-9 form and an insurance binder; (4) that maintenance of the water treatment system was the tenants’ responsibility; and wherein the landlord falsely stated: (5) that the tenants’ December rent payment [check no. 2333] had not been received and “to avoid eviction proceedings” she had deposited the tenants’ check no. 2172 [sic, check no. 2258] which they had provided earlier in the fall. Nor also did a violation of quiet enjoyment arise from the landlord’s groundless equity suit which she filed in this Court on December 11, 2007, seeking the removal of the tenants’ pets; nor from the landlord’s groundless eviction suit which she filed in this Court on January 4, 2008. See, Rahman v. Federal Management Co., Inc., 23 Mass.App. 701, 705-707, 505 N.E.2d 548, 550-551 (1987) (institution of meritless summary process suit did not breach quiet enjoyment). But see, Homesavers Council of Greenfield Gardens, Inc. v. Sanchez, 70 Mass.App. 453,

874 N.E.2d 497 (2007) (wrongful termination of rent subsidy followed by wrongful suit for eviction violated quiet enjoyment).

 

Also, I note that an award of quiet enjoyment damages for the landlord’s groundless claims and lawsuits would be partially duplicative of damages awarded for the landlord’s retaliation. See, Ianello v. Court Management Corp., 400 Mass. 321, 324-325, 509 N.E.2d 1, 3 (1987) (limiting statutory multiple damages where the same act simultaneously violates both the quiet enjoyment and the retaliation laws).

 

However, a cause of action for violation of quiet enjoyment did arise when the landlord began in earnest her purposeful, intentional acts which seriously interfered with the tenancy and substantially impaired the character and value of the leased premises on December 10, 2007: at noon by her contentious telephone call to the tenants’ home, demanding entry; followed in the early afternoon by her anonymous telephone call to the tenants’ daughter’s school, demanding “needed information”; which two days later on December 12, 2007, persuaded a judge of the Newburyport District Court to issue a temporary restraining order on the tenant’s complaint for quiet enjoyment.

 

Despite the temporary restraining order, the landlord’s intrusions continued three days later on the afternoon of December 15, 2007, when she and three other persons appeared unannounced at the tenants’ home and demanded to enter, the landlord attempting to record verbal exchanges with a tape recorder, she and her companions leaving the leased premises only when the tenants called the police. These actions violated quiet enjoyment.

 

Two days later on December 17, 2007, the tenant filed a complaint for contempt with the Newburyport District Court. The parties then appeared in this Court on December 20, 2007, and reached a Stipulation on December 21, 2007. But even then, on Saturday December 22, 2007, in the presence of a police officer assigned to the tenants’ home to prevent a breach of the peace, the landlord behaved in a manner that was “aggressive” and “irate,” refused to show the officer any identification, and was prevented from entering the tenants’ home only by the police officer. These actions violated quiet enjoyment.

 

Yet again, on New Year’s Eve, December 31, 2007, the landlord appeared unannounced at the tenants’ home, this time to personally accompany her constable to have the tenants served with a Summary Process Summons and Complaint. The tenant called the police, whereupon the landlord falsely complained to the police officer that the tenant had entered her unfinished house and asked the officer to handcuff and arrest the tenant. Again, it was necessary for the police to prevent the landlord from entering the tenants’ home or from coming within twenty feet of it. The landlord took various photographs, attempted to mark off portions of the yard with yellow caution tape, attempted to tape record her verbal exchanges with the police officer, and left the premises only when instructed to do so by the police. These actions violated quiet

enjoyment.

 

In quick succession, by four separate but continuing episodes on December 10, 2007, December 15, 2007, December 22, 2007, and December 31, 2007, the landlord breached the tenants’ rights to quiet enjoyment.

 

The landlord’s interferences with quiet enjoyment caused the tenants damage and injury, but the evidence does not show the extent of actual damages. Accordingly, I find that the tenants are entitled to recover $5,685 in statutory damages, an amount equal to three months’ rent, under the Quiet Enjoyment Law, Gen.L. c.186 §14.

 

 

4. Contempt. There is no doubt that the landlord’s conduct on December 15, 2007, December 22, 2007, and December 31, 2007, constituted acts of willful disobedience and contempt of the quiet enjoyment restraining order issued on December 12, 2007, by the judge of the Newburyport District Court.

 

However, as the tenants conceded at trial, damages which might be awarded for contempt would be duplicative of damages awarded for quiet enjoyment. Accordingly, the tenants are entitled to no further relief under their complaint for civil contempt filed on December 17, 2007, at the Newburyport District Court.

 

 

5. Security deposit. There is no doubt in this case that the landlord violated the Security Deposit Law, Gen.L. c.186 §15B, and that she did so repeatedly:

 

On May 3, 2007, before they moved in on June 1, 2007, the tenants paid the landlord $1,895 for a security deposit. The landlord did not comply in any way with the receipt and notification requirements of the Security Deposit Law, Gen.L. c.186 §15B(2)(b), (3)(a).

 

 

The tenants paid rent for September by their check no. 2258 for $1,895. After the landlord falsely claimed that she did not receive it, the tenants paid a replacement check for September’s rent by their check no. 2289 for $1,895. The landlord deposited that check on October 2, 2007. Through her false representations, the landlord demanded and received “rent in advance in excess of the current month’s rent or a security deposit in excess of the amount allowed by this section” in violation of the “payment in advance for occupancy” provisions of the Security Deposit Law, Gen.L. c.186 §15B(1)(b), (d).

 

The tenants paid rent for December by their check no. 2333 for $1,638, deducting from the $1,895 contract rent $252 at $63 per day for the four days period November 10-14, 2007, when they were without cooking facilities. The tenants’ undated letter sent in late November with their check no. 2333 explained the deduction, and also stated that because their security deposit had not been

placed in escrow as required they would reserve the right to use the security deposit as payment of rent during the lease period.

 

The landlord responded by her letter dated December 4, 2007, which falsely stated that the tenants needed to provide a W-9 form (which she claimed was required by the bank for the security deposit); that the tenants’ December rent check no. 2333 now had not been received; and that “to avoid eviction proceedings” she had deposited the tenants’ check no. 2172 [sic, check no. 2258] which they had provided earlier in the fall. On December 4, 2007, the landlord altered and deposited the tenants’ check no. 2258 for $1,895 rent for September (which the landlord earlier had falsely claimed that she did not receive, and which the tenants had replaced by their check no. 2289 for $1,895), by changing the date of the check “8-31-07” to “12-1-07” and by adding the annotation “December rent” to the face side of the check. Again, through her false representations, the landlord demanded and received “rent in advance in excess of the current month’s rent or a security deposit in excess of the amount allowed by this section” in violation of the “payment in advance for occupancy” provisions of the Security Deposit Law, Gen.L. c.186 §15B(1)(b), (d).

 

In court on December 21, 2007, the tenant delivered to the landlord a W-9 form, identifying herself and listing her social security number. That afternoon, the landlord opened an escrow account at the Sovereign Bank, listing the tenant as beneficiary, into which she says she placed the tenants’ security deposit. However, the social security number listed on the bank account form is not the tenant’s social security number listed on the W-9 form. To date, the landlord has not complied with the receipt and notification requirements of the Security Deposit Law, Gen.L. c.186 §15B(2)(b), (3)(a).

By letter to the landlord dated December 30, 2007, the tenants enclosed their check no. 2368 for $1,418 for January’s rent (again deducting $252 for lack of cooking facilities on November 10-14, 2007, and also deducting $225 for the cost of snow plowing for three storms). The letter requested that the landlord return their check no. 2333 for $1,638 for December’s rent which the landlord was holding without deposit.

 

By letter dated January 8, 2008, the landlord falsely stated to the tenants that they were in default of payment for January’s rent, and that their December’s rent check no. 2333 for $1,638 was never received. There was no truth to these statements. The landlord deposited check no. 2368 on January 11, 2008, after annotating both sides of the check “Accepted as Partial Payment for January rent only.” To date, the landlord has not returned the tenants’ check no. 2333.

 

I find as fact that the landlord did receive and is now in possession of the tenants’ check no. 2333 for $1,638, and that the landlord’s testimony at trial denying those facts was untruthful. The landlord continues to hold “rent in advance in excess of the current month’s rent or a security deposit in excess of the amount

allowed by this section” in violation of the “payment in advance for occupancy” provisions of the Security Deposit Law, Gen.L. c.186 §15B(1)(b), (d).

 

The landlord has no right to retain the tenants’ security deposit of $1,895 because the Security Deposit Law, Gen.L. c.186 §15B(6)(a) provides “The lessor shall forfeit his right to retain any portion of the security deposit for any reason, or, in any action by a tenant to recover a security deposit, to counterclaim for any damage to the premises if he: *** fails to deposit such funds in an account as required by subsection (3).”

 

The landlord also has no right to retain the tenants’ check no. 2333 for $1,638 because the Security Deposit Law, Gen.L. c.186 §§15B(1)(d) provides “No lessor or successor in interest shall at any time subsequent to the commencement of a tenancy demand rent in advance in excess of the current month’s rent or a security deposit in excess of the amount allowed by this section.”

 

Under the doctrine of Castenholtz v. Caira, 21 Mass.App. 758, 490 N.E.2d 494 (1986), treble damages liability does not accrue under the Security Deposit Law, Gen.L. c.186 §15B(7), unless and until the landlord fails to return the deposit immediately upon the tenant’s demand.

 

The tenants’ undated letter sent in late November with their check no. 2333 stated that because their security deposit had not been placed in escrow as required they would reserve the right to use the security deposit as payment of rent during the lease period. However, the tenants’ letter did not demand that the landlord return the security deposit.

 

The tenants’ motion filed by their counsel with this Court on December 20, 2007, requested an order that the landlord be required to return the $1,895 security deposit plus interest, and requested a finding that the landlord violated the Security Deposit Law, Gen.L. c.186 §15B(3)(a) and (6)(a). However, the motion also requested a month’s continuance of the cases pending in this Court because tenants’ counsel had a scheduling conflict due to court appearances in other courts.

 

At trial, the tenants did not press their request to have their security deposit returned, nor did the tenants seek an award of treble damages under the Security Deposit Law, Gen.L. c.186 §15B(7).

 

Accordingly, I do not award the tenants damages at this time under the Security Deposit Law, Gen.L. c.186 §15B(7), but I do find and rule that the landlord is required by law to return to the tenants both their security deposit of $1,895 with interest accrued since May 3, 2007, and the tenants’ December rent check no. 2333 for $1,638.

 

6. Attorney’s fees. The tenants are entitled to recover reasonable attorney’s fees both under the Retaliatory Eviction Law, Gen.L. c.186 §18, and under the Quiet Enjoyment Law, Gen.L. c.186

§14. The tenants are also entitled to recover attorney’s fees under Paragraph 18 (“Breach/ Abandonment”) and Paragraph 19 (“Attorneys’ fees”) of the parties’ lease, by operation of the Residential Lease Attorneys Fees Law, Gen.L. c.186 §20, which provides that whenever a residential lease entitles the landlord to recover attorneys’ fees incurred as the result of breach by the tenant, the landlord is required to pay attorneys’ fees incurred by the tenant as the result of breach on the part of the landlord.

 

The tenants have incurred $6,000 in attorney’s fees, for more than 30 hours work spent at the rate of $200 per hour. I find that the $200 hourly rate, the 30 hours time spent, and the $6,000 amount of the fee, are entirely reasonable. Accordingly, I find, rule and order that the tenants are entitled to recover $6,000 attorney’s fees.

 

 

ORDER

 

Judgment shall enter for the tenants: (1) dismissing the landlord’s claims; (2) for triple rent damages of $5,685 under Gen.L. c.186 §18; (3) for triple rent damages of $5,685 under Gen.L. c.186 §14; and (4) for reasonable attorney’s fees of $6,000 under Gen.L. c.186 §18, under Gen.L. c.186 §14, and under Gen.L. c.186 §20 and Paragraph 18 (“Breach/ Abandonment”) and Paragraph 19 (“Attorneys’ fees”) of the parties’ lease. The tenants’ contempt complaint is dismissed as duplicative.

 

The temporary restraining order which issued from the Newburyport District Court on December 12, 2007, is continued in full force and effect. The landlord is permanently enjoined from further interfering with the tenants’ quiet enjoyment so long as the tenants occupy the leased premises.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

BANK OF NEW YORK Plaintiff – v.- MR. AND MS.VAC Defendant No. 08-SP-00455 BANK OF NEW YORK Plaintiff – v.- CHAN DY SAN Defendant

 

 

 

 

Docket # No. 08-SP-00453

Parties: BANK OF NEW YORK Plaintiff – v.- MR. AND MS.VAC Defendant No. 08-SP-00455 BANK OF NEW YORK Plaintiff – v.- CHAN DY SAN Defendant

 

Judge: /s/David D. Kerman

Associate Justice

Date: March 3, 2008

DECISION AND ORDER

 

These are two summary process cases brought under Gen.L. c.239 §1 et seq. after foreclosure of a property which appears to be abandoned. Suit is brought against supposed former tenants about whom the plaintiff has little identifying information, and whom the plaintiff mortgagee describes as including “all occupants.” Service of process was by the “nail and mail” mode of leaving copies of the summons and complaint at the defendants’ supposed “last and usual place of abode” followed by first class mailing. It is clear that none of the defendants have actual notice of the suits filed against them. It is also clear that none of them now hold possession of the subject property. It is not known whether any of the individual defendants are in the military service.

 

The plaintiff foreclosing bank seeks the entry of default judgments against the named and anonymously unnamed individuals, and the plaintiff seeks the issuance of summary process executions which it believes to be necessary so that it can enter and take possession of the property. For the reasons which follow, I conclude that the plaintiff is not entitled to judgments and executions. However, I also conclude, upon the facts presented,[1] that the plaintiff foreclosing bank has shown due diligence, and that the property is abandoned, such that the plaintiff may enter and take possession.

 

__________________

 

[1] Case no. 08-SP-00453 is a summary process action brought after a foreclosure against two individuals who are named in the summons and complaint as “Mr. and Ms. Vac and all occupants.” The constable’s return of service states that service was made by leaving a copy of the Summary Process Summons and Complaint “at Mr. And Mrs. Vac’s last known and usual place of abode” and also by leaving a copy “at all other occupants last known and usual place of abode. To wit: 107A Gates St., in said Lowell, MA” followed by first class mailing. The plaintiff’s attorney’s notice of “intention to terminate your occupancy … due to the foreclosure” to “Mr. and Ms. Vac and all Occupants” bears a similar “Return of Service” at “last known and usual place of abode.” The only information plaintiff has about occupants and occupancy is that (without first names) the (presumed) last name “Vac” is on the mailbox, and that a neighbor told the plaintiff’s real estate agent that a family once lived there, at some unspecified time.

 

Case no. 08-SP-00455 is a summary process action brought after a foreclosure against eight individuals who are named in the summons and complaint as “Chan Dy San, Sophorn San, Savann Chan, Vina Chan, Coloma Chan, Sokhan Chan, Duong Chan, Men Chan and all occupants.” The constable’s return of service states that service was made by leaving a copy of the Summary Process Summons and Complaint “at [each named individual’s] last known and usual place of abode” and also by leaving a copy “at all other occupants last known and usual place of abode. To wit: 107C Gates St., in said Lowell, MA” followed by first class mailing. The plaintiff’s attorney’s notice of “intention to terminate your occupancy … due to the foreclosure” to “[the named individuals] and all Occupants” bears a similar “Return of Service” at “last known and usual place of abode.” The only information plaintiff has about occupants and occupancy is that all or some of the names “Chan” or “San” are on the mailbox, and that a neighbor told the plaintiff’s real estate agent that a family once lived there, at some unspecified time.

 

In both cases, all of the envelopes containing the court’s own

“Notice of Summary Process Trial” for February 25, 2008, which the court sent by first class mail to the named defendants were marked by the United States Postal Service “RETURN TO SENDER – ATTEMPTED – NOT KNOWN – UNABLE TO FORWARD” and returned to the clerk’s office.

 

According to the plaintiff, the whereabouts of the former owner mortgagor (in both cases) are of parts unknown.

 

1. All occupants. At the outset I note that this court looks with disfavor upon “John or Jane Doe or All Occupants” summonses (“the Publishers Clearing House mode of service”). A summary process action is an in personam, not an in rem remedy, P.F. Hall, Massachusetts Law of Landlord and Tenant (Adams & Wadsworth 4th ed. 1949), §266-§269 pp.296-301, §274 p.310, and the action tries possession, not title to real property. Connors v. Wick, 317 Mass. 628, 629-630, 59 N.E.2d 277, 277-278 (1945). Also, a summary process suit could never meet the requirements for a “class action” under MRCvP Rule 23, although a class suit is implied by an “All Occupants” summons.

 

More importantly, court process which does not “contain … the names of the parties” and which is not “directed to the defendant” as required by MRCvP Rule 4(b) is defective, and a default judgment rendered on process that does not properly name the defendant, or that is served in a manner not reasonably calculated to give actual notice of the lawsuit, is void. F.H. Hill Co., Inc. v. Doe, 286 Mass. 187, 189 N.E. 583 (1934); Fitzgerald v. Salentine, 51 Mass. (10 Metc.) 436 (1845). Note that the statute, Gen.L. c.223 §19, which authorizes the use of a fictitious name in a suit against a defendant whose name is not known to the plaintiff, requires that “sufficient service” be made, and contemplates that amendments will be made after the defendant is properly identified. See also, Doe v. City of Chicago, 360 F.3d 667, 669-670, 58 F.R.S. 103, ___ (7th Cir. 2004) and cases cited (“the use of fictitious names is disfavored”; judge’s failure to make an independent determination of the appropriateness of the plaintiff’s concealing her name was error).

 

Sloppy or callous practice can be expensive. In one case in this court, a foreclosing bank levied upon the former owner’s tenant by virtue of a summary process execution issued only in the name of the former owner. In the civil suit that followed, the tenant received in settlement the bank’s deed to the property, free and clear of unpaid taxes and other encumbrances, plus $89,000 cash. Vargas v. Bankers Trust, N.E.Hsg.Ct. No. 95-CV-00049 (January 31, 1997). See also, U.S. Bank National Association v. Sullivan-Moore, 406 F.3d 465, 61 F.R.S.3d 712 (7th Cir. 2005) (affirming Rule 11 sanctions, including requiring all attorneys in firm to attend a 16-hour civil procedure course, on law firm representing mortgagee in high volume foreclosure and eviction proceedings, for pursuing a foreclosure and eviction case without properly serving the elderly homeowner).

 

 

2. Pre-suit notices. I have no difficulty with the inclusion

of the words “and all Occupants” in the plaintiff’s pre-suit termination notices. My criticism is limited to the inclusion of these words in the summons and complaint court process and pleadings.

 

I also have no difficulty with the constable’s “Return of Service” on the plaintiff’s pre-suit notice of “intention to terminate your occupancy” because, where the property is abandoned, there is no occupancy (and no tenancy) to terminate.

 

I note that, although proof that a notice was left at “last and usual place of abode” is not sufficient proof of delivery of a statutory notice to quit under Gen.L. c.186 §11-§13A, Ryan v. Sylvester, 358 Mass. 18, 260 N.E.2d 148 (1970), a statutory or “regular” notice to quit traditionally was not required in a foreclosure case. Instead, the occupant (if there was one) was entitled only to a reasonable or “simple” notice — that his right to remain in possession has ended, and that he must timely remove his belongings, quit the premises, and deliver up possession in a reasonable time, in order to avoid liability to suit and liability for costs. See, Mescall v. Somerset Sav. Bank, 305 Mass. 575, 577, 26 N.E.2d 609, 610 (1940). P.F. Hall, Massachusetts Law of Landlord and Tenant (Adams & Wadsworth 4th ed. 1949), §172 p.177 fn.1, §173 p.179 fn.2, §193 pp.200-202, and cases collected. G. Warshaw, Massachusetts Landlord Tenant Law, §3.9 pp.127-128, fn.55,56, §3.11 pp.134-135 (Lexis-Nexis 11 M.L.P.L. 2d ed. 2001, suppl. 2004), citing Rising v. Stannard, 17 Mass. 282, 287 (1821) and Mizner v. Munroe, 76 Mass. (10 Gray) 290, 293 (1858).

 

This, it appears, has changed. See, Gen.L. c.186 §13, amended by St.2007 Ch.206 Sec.8, effective November 29, 2007 (“A tenancy at will of property occupied for dwelling purposes shall not be terminated by operation of law by the conveyance, transfer or leasing of the premises by the owner or landlord thereof or by foreclosure.”) and Gen.L. c.186 §13A, added by St.2007 Ch.206 Sec.9, effective November 29, 2007 (“Upon a foreclosure of residential real property pursuant to chapter 244, a tenant, occupying a dwelling unit under an unexpired term for years or a lease for a definite term in effect at the time of the foreclosure by sale, shall be deemed a tenant at will. Foreclosure shall not affect the tenancy agreement of a tenant whose rental payment is subsidized under state or federal law.”)

 

 

3. Summary process. As to service of the Summary Process Summons and Complaint, however, there is no evidence and indeed no information that, at the time suit was brought,[2] any of the named (and unnamed, or anonymously named) occupants “unlawfully held” and “refuse[d] to surrender possession.” Such evidence is required as proof of unlawful possession and refusal to vacate is necessary to

 

————————-

 

[2] See, USPR Rule 2(b) (“The date of service pursuant to this paragraph shall be deemed the date of commencement of the action

….”)

 

 

show the essential elements of the summary process cause of action. See, Gen.L. c.239 §1 (“Persons entitled to summary process”) (“If … possession is unlawfully held by force … holds possession without right … refuses to surrender possession …. the person entitled to the land or tenements may recover possession thereof under this chapter”); §2 (“Jurisdiction”) (“to answer to the claim of the plaintiff that the defendant is in possession of the land or tenements in question, describing them, which he holds unlawfully against the right of the plaintiff”).

 

Indeed, assuming that the named defendants actually lived in the subject apartment premises at some time, evidence that they moved prior to suit (perhaps in response to receipt of the plaintiff’s pre-suit termination notices) is at least as strong as evidence that they still live there (or that they lived there at the time when suit against them was commenced).

 

Thus on the information available, the plaintiff cannot establish a prima facie case, cannot maintain an action in summary process, and is not entitled to judgment under Gen.L. c.239 §1 et seq.

 

 

4. Military rights. Moreover, where the plaintiff is not in possession of knowledge or even of information sufficient to form a belief whether the former occupants are in the military service, the court cannot enter a judgment by default.

 

See, USPR Rule 10(d)(i) (“The plaintiff shall file an affidavit made by a competent person, on the affiant’s own knowledge, setting forth facts showing that the defendant is not a person in military service as defined in Article I of the ‘Soldiers’ and Sailors’ Civil Relief Act’ of 1940, as amended, except upon order of the court in accordance with the Act.”[3]; Rule 10(d)(iii) (“The clerk shall review the documents filed with the court. No judgment by default shall enter against any defendant where it appears from such review that the summons was not properly completed, served or returned, that the complaint was not properly completed or served, or that the other documents required to be filed with the court pursuant to Rule 2(d) have not been filed.”)

 

5. Due process. Furthermore, where it is clear beyond question that none of the named (and unnamed, or anonymously named) occupants have any actual notice of any lawsuit against them, the rendering of a default judgment would be a “nullity.” See, F.H. Hill Co., Inc. v.

 

__________________

 

[3] The Soldiers’ and Sailors’ Civil Relief Act is now the Service Members Civil Relief Act, 50 U.S.C. §501 et seq.

 

 

 

Doe, 286 Mass. 187, 189 N.E. 583 (1934) (default judgment was a nullity where writ spelled defendant’s name incorrectly and service was made by leaving summons of writ at place which was not defendant’s last and usual place of abode); Fitzgerald v. Salentine, 51 Mass. (10 Metc.) 436 (1845) (action on a default judgment taken against defendant who was sued by a wrong name and not validly served could not be maintained).

 

Notice that is not reasonably calculated, under all of the circumstances, to give actual notice to the interested parties offends due process. See, Town of Andover v. State Financial Services, Inc., 432 Mass. 571, 736 N.E.2d 837 (2000), rev’g 48 Mass.App. 536, 723 N.E.2d 531 (2000) (notice by certified mail to owner’s listed address in tax foreclosure case satisfied due process). See and contrast, Greene v. Lindsey, 456 U.S. 444 (1982) (service of process in eviction cases by mere posting without mail did not satisfy due process). The imposition of default judgments in these post-foreclosure eviction cases would violate due process.

 

 

6. Collateral consequences. For courts to render default judgments against individuals who are inaccurately named, improperly served, not notified, and not liable in summary process for unlawfully holding and refusing to surrender possession, would cause “grave injustice.” See, Fitzgerald v. Salentine, 51 Mass. (10 Metc.) 436 , 438-439 (1845) (“Great injustice may be done to parties, when sued by wrong names, if … judgments be recovered against them without the slightest notice.”) This is especially so, given the “collateral consequences” of civil judgments in consumer cases, in this day and age of advanced information technology when data from court records are routinely culled and collected by credit reporting agencies.

 

And for plaintiff foreclosing banks to obtain such judgments would expose the plaintiffs and their attorneys to liability for unfair debt collection and unfair or deceptive acts or practices consumer claims. See, Fair Debt Collection Practices Act, 15 U.S.C. §1692 et seq. Heintz v. Jenkins, 514 U.S. 291 (1995); Travieso v. Gutman, Mintz, Baker & Sonnenfeldt, P.C., 1995 WL 704778 (E.D.N.Y. 1995); Romea v. Heiberger & Associates, 988 F.Supp. 712 (S.D.N.Y. 1997), 988 F.Supp. 715 (S.D.N.Y. 1998), aff’d 163 F.3d 111 (2nd Cir. 1998); Pettway v. Harmon Law Offices, P.C., 2005 WL 2365331 (D.Mass. 2005); Hodges v. Feinstein, Raiss, Kelin & Booker, LLC, 383 N.J. Super. 596, 893 A.2d 21 (App.Div. 2006). Debt Collection Act, Gen.L. c.93 §49. Consumer Protection Act, Gen.L. c.93A.

 

 

7. Abandonment. It is not the case that the plaintiff is without remedy. On the facts presented, the plaintiff has attempted to give notice to those who might still hold or claim possession, but simply cannot — because no one appears to still hold possession — that is, the premises are abandoned. In these circumstances, where the plaintiff has shown due diligence, the plaintiff’s constable or real estate agent (or both) may simply post its notice (perhaps including a copy of this order), and after

a reasonable time enter the premises.

 

Of course the plaintiff mortgagee is obliged to exercise reasonable care with respect to any personal property that it may find at the premises. But the mortgagee is entitled to act on appearances, and its duty depends upon the value of the property to the eyes of a reasonable person in its position. The duty does not extend beyond reasonable conduct. See, Row v. Home Sav. Bank, 306 Mass. 522, 526-527, 29 N.E.2d 552, 554 (1940).

 

In these cases, I suggest that the mortgagee’s reasonable conduct should follow the statutory procedures for notice and levy on summary process executions, Gen.L. c.239 §3 ¶2-5 (forty-eight hours written notice), §4 (written description, removal and storage of property; reasonable care). In an abundance of caution, the mortgagee may wish to obtain more exact information about recent occupancies, possession, and dominion of the subject properties from the postal service, utility companies, and neighbors, and the mortgagee may wish also to take photographs of the exterior and interior areas of the premises at the time of its entry.

 

Should unforeseen or unusual circumstances come to the plaintiff’s attention, counsel is of course free to petition the court for instructions or for other appropriate relief.

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

LAURA ALLEN Plaintiff – v.- ARLENE ALVES Defendant

 

 

Docket # No. 08-CV-00019

Parties: LAURA ALLEN Plaintiff – v.- ARLENE ALVES Defendant

Judge: /s/David D. Kerman

Associate Justice

Date: March 5, 2008

ORDER

 

As it appears that the Housing Court lacks subject matter jurisdiction over the complaint, which seeks to recover for monies had and received, for a resulting trust, and for breach of contract as to a conveyance of residential property, on the theory of Robitaille v. Robitaille, 34 Mass.App. 947, 613 N.E.2d 933 (1993), this case is referred to the Chief Justice of the Housing Court and the Chief Administrative Justice of the Trial Court, for inter-departmental assignment or transfer under Gen.L. c.211B §9 and the doctrine of Konstantopolous v. Whateley, 384 Mass. 123, 424 N.E.2d 210 (1981) and Nixon v. Levinson, 20 Mass.App. 904, 477 N.E.2d 1046 (1985) (rescript), or other disposition in accordance with law.

 

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

JOSEPH ANDERSON Plaintiff – v.- RACK REALTY, LLC Defendant

 

 

 

Docket # No. 05-CV-00038

Parties: JOSEPH ANDERSON Plaintiff – v.- RACK REALTY, LLC Defendant

 

Judge: /s/David D. Kerman

Associate Justice

Date: March 10, 2008

DECISION AND ORDER

 

On theories of negligence and breach of covenant of quiet enjoyment, the plaintiff tenants Joseph and Jacqueline Anderson allege that the defendant landlords Russell Hertrich and Rack Realty, LLC hired the defendants Albert Fournier dba Family Roofers and Painters, Inc. to install or repair a rubberized roof at the leased premises where the plaintiffs resided and operated a storefront jewelry business, and that Fournier or one of his employees, using an open flame torch, started a fire which caused property damage.

 

The landlords seek summary judgment dismissing the complaint on grounds that they are not vicariously liable for the negligence of their independent contractor. Herrick v. City of Springfield, 288 Mass. 212, 192 N.E. 626 (1934); Whalen v. Shivek, 326 Mass. 142, 93 N.E.2d 393 (1950). Restatement (Second) of Torts, §409.

 

In support of their motion, the landlords allege that they had hired Fournier many times before the incident to perform various roofing and painting work, that they were satisfied with the quality of his work, and that they had no reason to believe that he was not qualified or that he would not exercise due care; that the landlords, who were engaged in the real estate investment and property management business, had no special expertise in roofing work; that the contractor independently supplied his own tools, materials and workmen; and that Fournier was an independent contractor whose work was not subject to the landlords’ supervision, direction or control.

 

The tenants acknowledge the general rule of non-liability for the negligence of an independent contractor, but rely on O’Brien v. Christensen, 422 Mass. 281, 662 N.E.2d 205 (1996) for their argument that the landlords in this case are liable for the negligence of their contractor because maintenance of a roof is a non-delegable duty that is imposed upon landlords by operation of the housing codes.

 

However, as the landlords properly point out, the O’Brien case is distinguishable because the repair in that case was of a pre-existing porch railing defect in violation of the housing codes, id. at 283; 207, and the repair here was of preventative maintenance where no code violation was involved.

 

Another important distinction is that in O’Brien the plaintiffs were not injured while repairs were being performed, instead after repairs had been completed and the landowner had resumed possession and control. Id. at 285; 208, fn.9, quoting Restatement (Second) of Torts, §422(b).

 

 

Also, unlike O’Brien, there was not in this case any express written obligation created by contract that might provide a basis for an action in tort. Id. at 286-289; 208-210.

 

The tenants, citing O’Brien at 286, 288-289; 208, 210, point to the unhappy fact that the contractor was not insured for his own negligence. But that fact, although it is causally related to the tenants’ inability or difficulty to obtain compensation for their losses, is not causally related to the fire or to the fire losses themselves. Also, that fact, standing alone, is not sufficient to show independent negligence on the part of the landlords by failing to exercise due care in the selection of their contractor.

 

Unlike O’Brien, where the construction of the porch railing had not complied with the requirements of the State Building Code, or with standard design practice in the industry, Id. at 284; 207, the tenants here do not show that the use of an open flame torch in connection with the installation or repair of a rubberized roof was not in accordance with the applicable building, safety or fire codes, or with roofing industry standards. Significantly, the tenants cannot show that the installation or repair of a rubberized roof, or even the use of an open flame torch in connection with such work, is an inherently dangerous activity rather than a common and routine process, as would take their case outside the general rule of non-liability for the negligence of an independent contractor. Whalen v. Shivek, 326 Mass. 142, 149-152, 93 N.E.2d 393, 398-400 (1950); Doyle v. La Croix, 336 Mass. 484, 487-488, 146 N.E.2d 506, 509 (1957); Vertentes v. Barletta Co., Inc., 392 Mass. 165, 168-169, 175, 466 N.E.2d 500, 502, 506 (1984). Restatement (Second) of Torts, §427.

Applying familiar principles of summary judgment law under MRCvP Rule 56, Community National Bank v. Dawes, 369 Mass. 550, 340 N.E.2d 877 (1976); Kourouvacilis v. General Motors Corporation, 410 Mass. 706, 575 N.E.2d 734 (1991); Flesner v. Technical Communications Corp., 410 Mass. 805, 575 N.E.2d 1107 (1991), the tenants have the ultimate burden of proving the landlords’ liability at trial, and on the landlords’ motion for summary judgment the tenants have the burden of coming forward with some evidence of liability sufficient to show a genuinely triable issue of fact. Where the tenants make no such showing on the summary judgment record the landlords are entitled to summary judgment.

 

ORDER

 

The motion by the defendant landlords Russell Hertrich and Rack Realty, LLC for summary judgment dismissing the complaint against them is allowed.

 

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

AMANDO TAVAREs v. JOSEPH NEVES

 

 

 

Docket # No. 08-CV-00044

Parties: AMANDO TAVAREs v. JOSEPH NEVES

Judge: /s/David D. Kerman

Associate Justice

Date: April 3, 2008

ORDER

 

Although both parties in this case currently reside in the City of Lawrence, there exists a substantial question of subject matter jurisdiction of the Housing Court over the complaint which seeks money damages for unpaid rent and for waste damage to residential property that is located in the State of New Hampshire. Accordingly, this case is referred to the Chief Justices of the Trial Court and of the Housing Court for interdepartmental assignment or transfer under Gen.L. c.211B §9 and the doctrine of Konstantopolous v. Whateley, 384 Mass. 123, 424 N.E.2d 210 (1981) and Nixon v. Levinson, 20 Mass.App. 904, 477 N.E.2d 1046 (1985) (rescript), or other disposition in accordance with law.

 

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

SEAN SCOTT v. ROBERT AUCH et al

 

 

 

 

Docket # No.07-SP-03943

Parties: SEAN SCOTT v. ROBERT AUCH et al

Judge: /s/David D. Kerman

Associate Justice

Date: April 17, 2008

RULINGS AND ORDER

 

After a two day trial the jury returned a verdict for the landlord for $709.68 unpaid rent for the period from October 4, 2007, through October 14, 2007, with the landlord required to return the tenants’ $500 check dated October 12, 2007, and for no recovery on the tenants’ habitability, quiet enjoyment, retaliation, and Chapter 93A counterclaims. Reserved to the court were disposition of the tenants’ claim for damages and attorney’s fees under the Security Deposit Law, Gen.L. c.186 §15B(7), and under so much of the Consumer Protection Law, Gen.L. c.93A §9, as relates thereto, and of the question of possession under the Rent Withholding Law, Gen.L. c.239 §8A. For the reasons which follow I conclude that the tenants are entitled to no relief under the Security Deposit Law and Consumer Protection Law, but that they are entitled (and required under their rent escrow stipulation) to timely pay the balance due the landlord and keep possession of the premises under the Rent Withholding Law.

 

1. Security Deposit

 

The landlord mishandled the $2,000 security deposit which the tenants paid before the beginning of the occupancy by not complying

with any of the notice and receipt requirements of the Security Deposit Law, Gen.L. c.186 §15B(2)(a),(b),(c), (d), (3)(a).

Also, the landlord deposited an additional $1,000 portion of the tenants’ $5,000 payment which they made prior to the inception of the tenancy ($2,000 for a security deposit, $2,000 for a last month’s rent deposit, and $1,000 for half the month’s rent for the period from October 15, 2007, through October 31, 2007) into the security deposit bank account. This violated the Law’s prohibition against requiring or demanding a security deposit in excess of the amount of the first month’s rent, Gen.L. c.186 §15B(1)(b)(iii), (d).

However, the tenants are not entitled to recover treble damages and attorney’s fees under the Security Deposit Law, Gen.L. c.186 §15B(7), for two reasons:

First, the landlord promptly credited the tenants with the return of their security deposit in accordance with the parties’ stipulation on December 20, 2007, after the tenants first lodged a demand for its return in their counterclaim which their attorney served and filed on December 3, 2007. Although there is not any definitive appellate court ruling on the issue, I believe that our appellate courts would rule that such a return, made within the twenty day period allowed for a reply to a counterclaim by MRCvP Rule 12(a)(1) (see also, Rule 7(a) Reporter’s Notes–1973 ¶4, the twenty-day period specified by Rule 12(a)(1) applies to a reply to a counterclaim denominated as such), satisfies the “immediate return” requirement of the statute, Gen.L. c.186 §15B(3)(a). See and contrast, Castenholtz v. Caira, 21 Mass.App. 758, 764, 490 N.E.2d 494, 498 (1986), where the tenant brought suit for his deposit and there was “no finding of a tender promptly thereafter.”

Second, on the facts of this case, where the tenants withheld six months’ rent beginning November 1, 2007, the landlord was entitled to apply the tenants’ security deposit to unpaid rent. See and contrast, McGrath v. Mishara, 386 Mass. 74, 79-80, 434 N.E.2d 1215, 1219-1220 (1982), where the landlord’s bad faith deduction of rent that was not in fact due resulted in treble damage liability, citing Goes v. Feldman, 8 Mass.App. 84, 91-92, 391 N.E.2d 943, 948 (1979), where the landlord’s conditional return of a portion of the deposit resulted in liability for treble the entire amount.

Thus, the tenants are not entitled to recover treble damages and attorney’s fees under the Security Deposit Law, Gen.L. c.186 §15B(7). See, Jenkins v. Warringer, N.E.Hsg.Ct. No. 07-SP-02244 (October 11, 2007).

 

 

2. Chapter 93A

 

Violation of the Security Deposit Law, Gen.L. c.186 §15B(1)(b), constitutes an unfair or deceptive act or practice under the Consumer Protection Law, Gen.L. c.93A §2. See, Attorney General’s “Chapter 93A Landlord-Tenant” regulation, 940 C.M.R. §3.17(4).

However, where the landlord promptly after demand credited the tenants with the return of the security deposit, and where the security deposit was properly applicable to unpaid rent, the

landlord’s violations of the Security Deposit Law , Gen.L. c.186 §15B, and of the Consumer Protection Law, Gen.L. c.93A §2, did not cause the tenants any loss, injury, or damage. See, Hershenow v. Enterprise Rent-A-Car Company of Boston, Inc., 445 Mass. 790, 840 N.E.2d 526 (2006); Roberts v. Enterprise Rent-A-Car Company of Boston, Inc., 445 Mass. 811, 840 N.E.2d 541 (2006). See and contrast, Leardi v. Brown, 394 Mass. 151, 474 N.E.2d 1094 (1985) (where the landlord adamantly refused, after written demand, to cease using a lease with six unlawful provisions).

Thus, the tenants are not entitled to relief under the Consumer Protection Law, Gen.L. c.93A §9. See, Jenkins v. Warringer, N.E.Hsg.Ct. No. 07-SP-02244 (October 11, 2007).

 

 

3. Section 8A

 

In this case the tenants presented colorable claims on their defense that they owed no contract rent, on their retaliation defense, and on their counterclaims for breach of warranty of habitability, violation of covenant of quiet enjoyment, retaliatory eviction, and violation of the security deposit and consumer protection statutes. Although unsuccessful, it cannot be said, after a two day jury trial, that the claims and defenses were sham or frivolous, or that they were advanced without good faith and colorable merit. Therefore, the tenants, who to their credit have placed into escrow all of their withheld rent, are entitled to their cure rights under the Rent Withholding Law, Gen.L. c.239 §8A.

In so ruling, I apply the plain language of the second sentence of the fifth paragraph of the statute which provides:

 

If the amount found to be due the landlord exceeds the amount found to be due the tenant or occupant, there shall be no recovery of possession if the tenant or occupant, within one week after having received written notice from the court of the balance due, pays to the clerk the balance due the landlord, together with interest and costs of suit, less any credit due the tenant or occupant for funds already paid by him to the clerk under this section.

 

See, Lawrence v. Osuagwu, 57 Mass.App. 60, 62-64, 781 N.E.2d 50, 52-53 (2003) (reversing award of possession to landlord under G.L. c.239 §8A). See also, Wood Ridge Home Cooperative v. DeRosa, N.E.Hsg.Ct. No. 93-SP-01775 (May 12, 1994). Accord, Saboco Trust v. Constantineau, N.E.Hsg.Ct. No. 92-SP-00550 (October 6, 1992); Palmer v. Williams, N.E.Hsg.Ct. No. 93-SP-00395 and No. 93-CV-00009 (July 21, 1993); Peabody Properties, Inc. v. Scondras, N.E.Hsg.Ct. No. 96-SP-01998 (September 24, 1996); Elkareh v. Connor, N.E.Hsg.Ct. No. 96-SP-02119 (November 18, 1996); Castricone v. Keene, N.E.Hsg.Ct. No. 97-SP-00972 (April 24, 1997); Gary v. Duchesne, N.E.Hsg.Ct. No. 99-SP-03935 (March 3, 2000); Village Realty Trust v. Girard, N.E.Hsg.Ct. No. 04-SP-02074 (September 16, 2004). But see, Palermo v. Tenerini, Bos.Hsg.Ct. No. 90-SP-55630 (September 19, 1991 and March 6, 1992).

To accept the argument, based on G.Warshaw, Massachusetts Landlord Tenant Law, (M.P.L. 1987, suppl. 1993), §7.2, p.215,

(M.P.L. 2d ed. 2001, suppl. 2007), §9:16 – §9:17, that a balancing of public policy concerns, or of the individual equities, should foreclose the tenants’ cure rights, would violate the plain meaning and clear intent of the statutory law. Application of the statute neither requires nor invites a judicial weighing of public policy issues or a balancing of equities.

 

 

ORDER

 

The tenants shall forthwith file proof of payment of $11,302.03, which consists of $709.68 unpaid rent for the period from October 4, 2007, through October 14, 2007, and six months’ rent at $2,000 per month from November 1, 2007, through April 30, 2008, less $2,000 for credit the return of the tenants’ security deposit, $382.35 statutory interest thereon in accordance with the attached spreadsheet, and $210 statutory costs. The landlord shall forthwith file proof that the tenants’ $500 check dated October 12, 2007, has been returned to the tenants. Upon such filings the Clerk shall enter upon the docket a judgment of dismissal of all claims and counterclaims.

 

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

NEPTUNE TOWERS v. MIKHAIL GENKIN

 

 

Docket # No. 07-SP-01681

Parties: NEPTUNE TOWERS v. MIKHAIL GENKIN

Judge: /s/David D. Kerman

Associate Justice

Date: May 15, 2008

DECISION AND ORDER

 

The plaintiff in this summary process action is Neptune Towers, which is a 334 unit housing development located at 130-160 Neptune Boulevard in Lynn. The tenant is Mikhail Genkin, who holds a Section 8 program subsidized lease for Unit 110E. The tenant, who is 59 years of age, and emigrated from Russia in 1998, suffers from late onset chronic paranoid schizophrenia which causes hallucinations and delusions. Episodes of hallucination or delusion are correlated with, and in the past have been triggered by, times of high stress.

On or about May 15, 2002, the tenant’s mental condition deteriorated. As a result, the tenant suffered hallucinations or delusions, in the course of which he held a neighbor’s home care attendant at knife point, forced her into his apartment, and ordered her to clean the carpet. Criminal charges for kidnaping and for assault and battery with a dangerous weapon resulted in a finding that the tenant was incompetent to stand trial by reason of mental illness, and then in a finding of not guilty by reason of insanity. The tenant was institutionalized at Tewksbury State Hospital from May 15, 2002, until April 12, 2004. Neptune Towers brought an eviction action no. 02-SP-01679 in this Court which was resolved by an Agreement for Judgment on March 4, 2004. Pursuant to the Agreement for Judgment, the tenant resumed occupancy of his apartment on May 1, 2004, and eventually the case was dismissed on March 31, 2005.

 

On or about December 5, 2005, the tenant’s mental condition again deteriorated. As a result, the tenant suffered hallucinations or delusions that radio waves were attacking him, and he fled from his Neptune Towers apartment to Long Island, New York. The tenant was found in an agitated state in a drugstore in Long Island, and he was institutionalized at the Nassau University Psychiatric Center on

 

December 15, 2005. He was then transferred to the Pilgrim Psychiatric Center and treated there on an “involuntary” basis from February 28, 2006, until July 24, 2006, when he was transferred to the Tewksbury State Hospital in Massachusetts. He continues to receive treatment there on an inpatient basis. The tenant’s institutional status at Tewksbury State Hospital is “conditional voluntary” – that is, he can leave the institution either with the Hospital’s consent or with three days notice (so that the Hospital can seek an involuntary commitment).

By notice dated March 28, 2007, Neptune Towers terminated the tenancy because the tenant had not lived in his unit for over a year. This action was commenced by service of Summary Process Summons and Complaint on June 4, 2007. Neptune Towers now moves for entry of final judgment on grounds that the tenant has failed to reside in his apartment now for more than two years, and that he will be unable to reside there on an independent living basis for the foreseeable future. Both the residents and the staff of Neptune Towers have expressed fear for their physical safety if the tenant is permitted to return.

The tenant opposes the landlord’s motion for judgment and instead seeks gradual (one hour, then two and three hours) supervised visits to his apartment, with a clinician from the Program for Assertive Community Treatment [PACT] to assess his response to the Neptune Towers environment. The visits would be followed by release from the Hospital and return to the apartment on a permanent basis, with ongoing follow-up care from PACT provided indefinitely.

The parties agree that the landlord has established a prima facie case to recover possession in summary process, and that the tenant is “handicapped” within the meaning of the fair housing laws, Gen.L. c.151B §1 et seq. and 42 U.S.C §3601 et seq., such that he is entitled to the landlord’s “reasonable accommodation.” The parties stipulate that the sole issue to be decided is whether the tenant is “otherwise qualified” to resume occupancy despite his handicap, such that his resumed occupancy as a tenant would not present a “direct threat” to staff or other residents at the premises or an “undue burden” to Neptune Towers.

The underlying facts in the matter are virtually undisputed and are shown by the parties’ stipulation and by documentary exhibits which consist largely of portions of the tenant’s medical record which counsel have selected and submitted. After trial, and also after several hearings, I deny the tenant’s motion for further accommodation, and allow the landlord’s motion for entry of final judgment. In so doing, I am persuaded by the following:

 

 

 

 

1. Medical records

 

The earliest Tewksbury State Hospital [TSH] medical record submitted by the parties is the “Nursing Weekly Summary Note” dated February 19, 2007. That record identifies the patient’s problem as “inability to care for self’ and states that the patient is making “minimal progress towards short term goals” and “minimal progress towards long term goals.” All of the subsequent TSH records submitted consistently identify the patient’s problem as “inability to care for self’ (or as “inability to care for self and psychosis”); records on and after October 1, 2007, also list “community transition” as a second problem. All of the records consistently state that the patient is making “minimal progress towards short term goals” and “minimal progress towards long term goals.”

Other, specific entries in the “Nursing Weekly Summary Notes” and “Interdisciplinary Progress Notes” are similar, e.g.: “progress toward discharge continues to be minimal” [05/07/07]; “slow progress” [06/19/07]; “slow improvement” [09/25/07]; “grossly limited but improving” [10/12/07]; “chronically limited” [11/09/07]; “slightly better as evidenced by his energy in playing ping-pong with another resident” [11/20/07]; “mental status is reported as slightly improved” [11/20/07]; “chronically limited” [12/11/07].

After the patient’s Kohlman Evaluation of Living Skills [KELS] test [Exh.85; Exh.47] on October 11, 2007, some of the specific entries in the medical record are somewhat more optimistic, e.g.: “he can live independently with assistance from PACT team” [10/11/07]; “Pt. able to take reality based & realistic approach to discharge planning. His perfect score on the KELS is reassuring reflection of a continuing capacity to live independently” [10/12/07]; “stable, discharge ready” [10/15/07]; “he can return to his apartment in Lynn after discharge” [staff psychiatrist letter 10/15/07]; “Pt. more engaged & oriented. *** Pt. is clinically stable for disch” [10/25/07]; “clinically stable” [11/06/07]; “Stable & remains discharge-ready” [11/06/07]; “Pt. is stable for discharge” [11/26/07]; “stable for disch” [01/02/08].

However, the medical record shows that the patient’s hallucinations or delusions persist unabated, e.g.: “he could get money from the people who beat him with radio weapons” [4/02/07]; “delusional about radio waves” [4/13/07]; “continues to hear voices” [07/05/07]; “Pt. continues to experience auditory hallucinations & have delusions about radio wave weapons & his ability to perform banking telepathically *** This week Mr. Genkin offered to deposit $10,000 into my own bank account to show me he can really do this. When I declined the offer he then offer to deposit $10,000,000! (to which I also declined)” [07/20/07]; “grandiose & paranoid delusions- believes he was chosen as an intellectual to be studied and compared with ‘simple people'” [07/25/07]; “The patient opened up considerably

 

today about his AH, and various grandiose delusions. He described how his ‘colleagues speak with me’ about his delivering ‘about $20 million for my suffering’ Pt dismissed notion that he could need to sue another party, since ‘I am the judge myself'” [07/25/07]; “ongoing AH *** ‘radio wave weapon’ no longer ‘beats’ him” [09/25/07]; “‘the radio wave weapon no longer beats my heart’ though still hears background voices *** an image completely unrelated to his radio wave weapon concerns (Jimmy Connors & a tennis racket!)” [10/05/07]; “preoccupations continue” [10/16/07]; “hears voice of Linus Pauling” [10/25/07]; “[AH] not beating my heart” [11/17/07]; “experiences auditory hallucinations; they appear to be more in the background than foreground” [11/20/07]; “ongoing AH, as before, occasionally ‘beating my heart'” [12/11/07]; “remains concerned that the voice will beat me again *** they (U.S. & Russian Govts) owe him hundreds of millions of dollars for their victimization of him with the Radio Wave Weapon” [12/26/07]; “delusional thought content persists” [12/31/07]; “continues in his delusions of being owed hundreds of millions of dollars by U.S. & Russian Govt for experimenting on him & the Radio Wave Weapon. Reports pain of RWW ‘beating on heart’ *** Pt less preoccupied with radiowaves. Continues to think he either has a lot of money in the bank or that he is owed money by the Russian and/or America government” [01/02/08].

The records show that the patient does not readily interact with others, e.g.: “remains isolative & delusional” [4/13/07]; “Pt. isolates in his room” [05/01/07]; “He continues to lie in bed all day” [08/29/07]; “Isolates in bed” [10/16/07]; “Continues to isolate” [10/22/07]; “pt continues to be isolative” [12/31/07]. The patient’s isolative behavior sometimes threatens his health, e.g.: “Refuses an occasional meal” [02/19/07]; “needs verbal prompts to get OOB to get his medication *** Pt. frequently refuses shower *** Intermittently refuses meals” [05/01/07]; “pt. needs verbal cues to shower & wash clothes” [10/22/07]; “Isolative most of day lying in bed *** needs staff encouragement & verbal cues to shower and wash clothes *** stays in bed most of the day” [11/06/07]; “Refuses some meals” [12/02/07]. The laboratory “Specimen Reports” show that the patient often refused (or cancelled) efforts to perform routine monitoring blood tests [Exh.83, 11/06/06 – 07/03/07].

The patient consistently refuses group and rehabilitation activities at the Hospital, e.g.: “Refuses almost all groups” [2/19/07]; “pt refuses groups & rehab” [04/10/07]; “pt refuses groups & rehab” [04/16/07]; “pt refuses groups” [05/01/07]; “Pt. continues to refuse to attend Rehab and/or most groups despite encouragement” [05/01/07]; *** “Client attended one on unit group” [08/06/07]; “Refuses groups” [08/20/07]; “He refuses to go to program *** remains uninterested in rehab center” [08/29/07]; “pt. refuses group and rehab” [10/01/07]; “Pt refuses Rehab” [10/09/07]; “refuses most groups” [10/22/07]; “refusing most groups” [11/06/07]; “Refuses most groups & Rehab” [11/06/07]; *** “Attends/ refuses some groups” [12/02/07]; “attends some on unit groups” [12/17/07]; “attends some on unit groups” [12/31/07]; “currently minimally engaged in the programs here” [01/02/08]; “Pt continues to refuse to participate in

 

rehab activities” [01/04/08]. The “Patient Group Participation” report shows sporadic attendance in four or five groups within a two week period. [Exh.85A, 04/23/07 – 11/19/07].

The patient himself is ambivalent about returning to his apartment at Neptune Towers, e.g.: “he still does not feel ready for discharge (‘I need to feel safe from radio waves to leave'” [04/25/07]; “assist pt to fight to keep his housing” [07/20/07]; “Pt very ambivalent about returning to the Russian community in Lynn, preferring to consider Boston or ‘a different place where I was not beaten'” [07/25/07]; “He does not think that he is ready for discharge. *** He feels safe in the hospital & is not eager to discuss disch” [08/29/07]; “Seems content w/ his current routine though concerned that he may lose his apartment. Vague & evasive when I ask about his wishes for his future, settling merely on ‘living in my apartment'” [08/30/07]; “Pt. tentatively says that he is ready for discharge” [09/28/07].

Unfortunately, the patient unrealistically rejects a group home placement, e.g.: “Possible eviction requires groundwork, negotiation for possible group home placement” [07/25/07]; “Understands that since he is DMH eligible, he will have the option of a Group Home placement” [07/25/07]; “he has chosen to advocate for his housing, despite our discussions about a Group Home, as another option *** placement remains problematic *** encourage Group Home placement” [09/25/07]; “Pt also speaking in a more guarded way about feeling ready to return to his apartment. he is requesting that I write an affidavit to support him” [10/05/07]; “it may be reasonable to try again his apartment as per pt’s strong preference (connected to JCC & community)” [10/09/07]; “his old apartment, his preferred preference” [10/14/07]; “He has no interest in going to Senior Jewish Senior Center until permanent Housing in place” [10/23/07]; “refused to participate [in JCC] until he knew where he was going to live” [10/25/07]; “He is still intent on returning to his apartment, despite legal obstacles & evidence that apartment management will not welcome him back” [01/02/08]; “Focus of our discussion generally is on the eviction proceedings and how it would make sense for pt to begin looking for a new place to live. Mikhail usually ends the meeting by saying he will wait to see what happens in court. *** Encouraging pt to consider looking for a new apartment. *** Pt needs a place to live. Insisting on awaiting results of eviction proceedings” [01/04/08].

It is extremely significant that the patient has no insight into his medical condition, and that he consistently believes that he does not suffer schizophrenia or paranoia, e.g.: “insight poor jdmt poor” [4/13/07]; “poor insight *** Consider utility of an outright Guardianship if insight does not improve” [04/25/07]; “The pt believes he does not have schizophrenia, paranoia” [07/25/07]; “his insight into his illness remains so poor as to be nonexistent” [07/25/07]; “Patient’s insight and judgment remain limited” [11/20/07].

Because of the patient’s total lack of insight about his condition, the overall controlling fact is that the patient’s prognosis for a recovery workable to the extent that he might successfully resume an independent living arrangement at his Neptune Towers apartment is extremely poor, e.g.: “Pt. potentially dangerous in unsupported settings [if not treated with medication]” [05/08/07]; “prognosis will be guarded at best even in the most supportive group

home if his insight into his illness remains so poor as to be nonexistent” [07/25/07].

To be sure, the patient’s medical record contains a few hopeful entries, e.g.: “Pt is more than 5 yrs past any significant dangerous behaviors, so I would be inclined to support pt’s efforts to return to his apt” [10/05/07]; “Pt has enough distance on psychotic rxs to be able to transition back to community” [10/09/07]; “his dangerous behaviors are more than 5 years old *** excellent self control in structured environment” [10/09/07]; “Safety plan in place” [10/22/07]. However, these assessments are unrealistic.

 

 

2. Trial testimony

 

At trial on January 25, 2008, the tenant’s treating psychiatrist Anthony H. Vagnucci, Jr., M.D., testified in accordance with his recommendation [Exh.52] dated October 15, 2007, that he supports the patient’s return to his Neptune Towers apartment. Dr. Vagnucci testified that the patient has had no violent episodes during his stay at Tewksbury State Hospital, and that he gets along well with others, although he has a tendency to withdraw. Dr. Vagnucci testified that “at this time” the patient is not dangerous to himself or to others, and that he is able to care for himself. When asked specifically whether the patient poses a threat, Dr. Vagnucci was only able to state “not at this time.” Dr. Vagnucci also stated that he does not know whether Neptune Towers is a “good fit.”

Susan Shwom, Lic.SW, of the Tewksbury State Hospital also testified that she supports the tenant’s return to his Neptune Towers apartment. However, the social worker testified that one week before trial the patient told her that he was afraid of radio weapons at the Neptune Towers apartment.

Dr. Erich Goetzel, M.D., of the Program for Assertive Community Treatment [PACT] also testified in accordance with his recommendation [Exh.63] dated November 15, 2007, that he supports the patient’s return to his apartment. Dr. Goetzel stated that the patient has had five “episodes” since 2004 but his “current hospitalization has not been complicated by any type of aggressive behaviors” and that “efforts preventing him to return to his home at this time appear without justification.”

Keith Wales, Lic.SW, of PACT testified in support of the tenant’s motion for gradual supervised visits to the Neptune Towers apartment to be followed by release from the Hospital and return to the apartment on a permanent basis, in accordance with the “Transitional Plan for Mikhail Genkin” dated September 14, 2007, [Exh.84] which the social worker authored. Mr. Wales, who is PACT’s primary contact with the patient, has met biweekly with the patient since July 2007, and meets with him now on a weekly basis. The witness stated that the patient is adamantly opposed to a group home or other alternative housing arrangement.

The tenant himself testified at trial that he wishes to return to his Neptune Towers apartment, that he does not prefer a group home. The tenant also testified that four months ago he was attacked by radio waves.

I respect the tenant’s preference for his apartment. I also very much respect the sincere testimony and dedicated efforts of the tenant’s health care professionals, and I share their belief that the

patient’s preference to return to his Neptune Towers apartment is an important consideration. However, I disagree with their assessment that the patient is now or will in the foreseeable future be able to resume an independent living arrangement at the Neptune Towers apartment. The overwhelming weight of the evidence is that the patient’s welfare would best be served by his return to the community at a group home. Furthermore, the patient’s welfare is not the only consideration in the case. The welfare of the other residents and the staff of Neptune Towers also must be considered. Where the patient has twice required hospitalization and removal from his independent living apartment environment due to hallucinations or delusions which caused him to be unable to care for himself and also dangerous to himself or others, and where those hallucinations or delusions continue unabated, the patient cannot be viewed as “otherwise qualified” to resume occupancy despite his handicap, and it cannot be said that the patient’s resumed occupancy as a tenant would not present a “direct threat” to staff or other residents at the Neptune Towers premises. See, Andover Housing Authority v. Shkolnik, 443 Mass. 300, 820 N.E.2d 815 (2005) (where the tenants’ repeated denials of the nature of the disability and of disability-related behavior prevented the landlord’s efforts to provide a reasonable accommodation).

 

 

ORDER

 

Enter judgment for the plaintiff in summary process for possession of the subject premises with statutory costs.

 

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

STEVEN GOODRIDGE v. JOEL FOSTER

 

 

Docket # No. 06-CV-00066

Parties: STEVEN GOODRIDGE v. JOEL FOSTER

Judge: /s/David D. Kerman

Associate Justice

Date: June 9, 2008

DECISION AND ORDER

 

This action is brought against the owner-landlord of residential rental property by former tenants, husband and wife, who allege that their twin children, Adam and Zachary, born on September 24, 2003, suffered elevated blood lead levels due to dangerous levels of lead-based paint or other accessible materials at the premises after the family moved there under a lease which began on November 1, 2003.

The plaintiffs’ medical evidence is that their children’s highest blood lead levels were 16 and 14 µg/dL Pb, by finger-stick (capillary), not by venous measurements: On June 28, 2004, Adam and Zachary’s blood lead levels were measured on capillary blood samples as 5.00 and 7.00 µg/dL Pb. On September 29, 2005, capillary measurements were 16.00 and 14.00 µg/dL Pb; venous measurements on October 7, 2005, were 9.00 and 11.00 µg/dL Pb. On November 17, 2006, capillary measurements were 12.00 and 12.00 µg/dL Pb; venous measurements on November 30, 2006, were 8.00 and 6.00 µg/dL Pb.

 

According to the U.S. Department of Health and Human Services, Centers for Disease Control, Preventing Lead Poisoning in Young Children (4th revised statement October 1991), pp.1-2: “Some adverse health effects have been documented at blood lead levels at least as low as 10 micrograms per deciliter of whole blood (10 µg/dL). *** Interventions for individual children should begin at blood lead levels of 15 µg/dL. *** Community prevention activities should be triggered by blood lead levels >10 µg/dL. Medical evaluation and environmental investigation and remediation should be done for all children with blood lead levels >20 µg/dL. All children with blood lead levels >15 µg/dL should receive individual case management, including nutritional and educational interventions and more frequent screening.”

 

 

 

The Massachusetts Department of Public Health Lead Poisoning Prevention and Control regulation, 105 C.M.R. §460.020, promulgated pursuant to Gen.L. c.111 §191, provides:

 

Blood Lead Level in Excess of the Level Considered Dangerous to a Child’s Immediate Health means a concentration of lead in whole venous blood of 15 to 24 micrograms per deciliter, regardless of erythrocyte protoporphyrin level, in a child under six years of age. This definition shall be used for surveillance of children at immediate risk of lead poisoning.

 

Lead Poisoning is a disease present in a child when the child has a concentration of lead in whole venous blood of 25 micrograms per deciliter or greater.

 

 

Capillary blood lead measurements are considered to be not as reliable as venous measurements. See, HHS CDC Preventing Lead Poisoning in Young Children (4th revised statement October 1991), p.41: “Unless contamination of capillary blood samples can be prevented, lead levels should be measured on venous samples. *** Elevated blood lead results obtained on capillary specimens should be considered presumptive and must be confirmed using venous blood.” See, DPH regulation, 105 CMR 460.050(B): “A venous blood sample is recommended for screening. If a capillary sample is used, screening shall conform to the capillary blood sample protocol approved by the Director.”

The children have not brought suit. Only their parents are the plaintiffs in this action. The parents claim that “they lived in fear of the effect the lead environment would have on the health of their children.” They seek money damages compensation for “mental anguish.” [Doc.29 p.5].

 

***

 

Before the court are the defendant’s motion for summary judgment under MRCvP Rule 56 and motion for assessment of attorneys fees and costs under Gen.L. c.231 §6F. I allow the motion for summary judgment because the record shows that the plaintiffs cannot prove liability on the part of the owner-landlord. However, I deny the motion for counsel fees and costs because it is not shown that the plaintiffs’ claims are “wholly insubstantial, frivolous, and not advanced in good faith” as required by the statute.

The background facts in this matter are undisputed: After purchasing the six dwelling unit premises on June 1, 1993, the defendant engaged the services of A & A Services Deleading Co., Inc. to de-lead the apartment building, and the work took place over the course of many months. Various “letters of compliance” issued on October 12, 1993, November 18, 1993, April 29, 1994, August 24, 1994, January 10, 1995, and April 5, 1995.

By letter dated October 6, 2005, the Childhood Lead Poisoning Prevention Program notified the tenants of the September 29, 2005, capillary sample 16.0 µg/dL Pb elevated blood lead test result. At the tenant’s request on December 5, 2005, the Board of Health of the City of Salem inspected the premises and made its “lead determination

report” on December 5, 2005; the Board issued an “order to correct violation” on December 7, 2005. Thereafter, a “post-compliance assessment report” issued on January 20, 2006; A & A Services Deleading Co., Inc. started work on February 20, 2006, and finished work on March 3, 2006; and a “certification of restored compliance” issued on April 11, 2006.[1]

At the hearing of this matter on May 28, 2008, the plaintiffs conceded, as they must, that they have no actionable strict liability claim under the Lead Poisoning Prevention and Control Law, Gen.L. c.111 §189A-§199B, because “letters of compliance” issued before their occupancy.

The plaintiffs contend, however, that because the board of health determined (during the plaintiffs’ occupancy) that the property was not in compliance (due to exterior flaking paint and a lead-contaminated exterior rear door jamb), their contract and fault-based claims for breach of warranty of habitability, violation of covenant of quiet enjoyment, Gen.L. c.186 §14, negligence, infliction of emotional distress, and violation of consumer protection rights, Gen.L. c.93A §2, §9, are viable.

At the hearing of this matter the plaintiffs conceded, as they must, that all such claims depend on a finding of negligence on the part of the owner-landlord. See, with respect to quiet enjoyment, infliction of emotional distress, and chapter 93A, Al-Ziab v. Mourgis, 424 Mass. 847, 679 N.E.2d 528 (1997); Homesavers Council of Greenfield Gardens, Inc. v. Sanchez, 70 Mass.App. 453, 874 N.E.2d 497 (2007). See, with respect to personal injury claims under the warranty of habitability, Griffith v. Messina, N.E. Hsg.Ct. No. 07-CV-00065 (December 20, 2007), and authorities cited.

The plaintiffs posit their claim of negligence on a supposed failure of the owner-landlord to inspect for lead hazards. [Doc.29 pp.9-10]. But the defendant testified at deposition that he regularly inspected and repainted the rental premises. [Doc.24 pp.1-2, Dep. pp.49-50, 60, 77, 79].

 

__________________

 

[1] Before any of this occurred, the tenants fell behind in their rent, and the landlord issued a fourteen-day notice to quit on September 6, 2005. The ensuing eviction case no. 05-SP-02739 was disposed by an agreement for judgment with a work-out arrangement on November 9, 2005. The work-out arrangement failed, however, and on the landlord’s motion, an amended judgment entered and execution for possession and unpaid rent and costs of $2,860 issued on December 14, 2005.

 

 

 

The plaintiffs do not point to anything that contradicts the defendant’s testimony, but instead attempt to rebut it by pointing to the fact that the board of health determined on December 5, 2005, that the property had fallen out of compliance and two days later ordered that the defendant correct the violation. [Doc.29 pp.9-10].

However, as a matter of law, the bare fact of a violation, standing alone, does not suffice to show negligence on the part of a defendant owner-landlord. See, Al-Ziab v. Mourgis, 424 Mass. 847, 679 N.E.2d 528 (1997).

Furthermore, on the undisputed facts of this particular case, the absence of negligence is particularly clear where the owner-landlord de-leaded the entire apartment building and obtained “letters of compliance” shortly after he purchased the premises in 1993, well before the tenants began their occupancy in 2003.

Applying familiar principles of summary judgment law under MRCvP Rule 56, Community National Bank v. Dawes, 369 Mass. 550, 340 N.E.2d 877 (1976); Kourouvacilis v. General Motors Corporation, 410 Mass. 706, 575 N.E.2d 734 (1991); Flesner v. Technical Communications Corp., 410 Mass. 805, 575 N.E.2d 1107 (1991); Manning v. Nobile, 411 Mass. 382, 582 N.E.2d 942 (1991), the affidavits and exhibits in the summary judgment record [Doc.1, 23, 24, 25, 29, 32] show that there is no genuinely triable issue as to the owner-landlord’s liability.

 

 

ORDER

 

The motion by the defendant for summary judgment is allowed.

 

The motion by the defendant for assessment of attorneys fees and costs under Gen.L. c.231 §6F is denied.

 

Enter judgment dismissing the complaint.

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

LOWELL HOUSING AUTHORITY v. VERNON BUCHANNAN

 

 

Docket # No. 08-SP-01641

Parties: LOWELL HOUSING AUTHORITY v. VERNON BUCHANNAN

Judge: /s/David D. Kerman

Associate Justice

Date: June 24, 2008

ORDER

 

The defendant-tenant, whose public housing rent arrearage is now $1,551 through June 30, 2008, is ordered to pay 125% of his $229 current monthly rents, in total monthly amounts of $286.25, to the plaintiff Lowell Housing Authority, until the rent arrearage is entirely eliminated, or until further order of the Court.

The Lowell Housing Authority informs the Court that the tenant is in fact, is regarded, and is recorded as a disabled person within the meanings of the handicap protection laws and the social security laws; that in past years the tenant’s rents were paid by his mother acting as Social Security Administration representative payee; but that beginning on December 1, 2007, the tenant fell in arrears of

rent after the representative payee function was discontinued in January 2007, when the tenant’s mother became unable due to health reasons to continue serving in that capacity.

Accordingly, judgment will not enter at this time and proceedings will be stayed for a reasonable period to allow the tenant and the Social Security Administration, in consultation with the Lowell Housing Authority and the Tenancy Preservation Program clinician of this Court, to appoint the Life-Links agency as institutional representative payee, or to appoint another successor representative payee, in accordance with 42 U.S.C. §405(j), 20 C.F.R. §404.2001 et seq (Title II OASDI); 42 U.S.C. §1383(a)(2), 20 C.F.R. §416.601 et seq. (Title XVI SSI), so that the tenant and his successor payee can cure the rent arrearage and avoid the tenant’s needless homelessness by eviction from the public housing premises.

The hearing of this matter is continued until 9:00 o’clock a.m. on Monday, July 28, 2008, at the Lowell session of this Court, at which time a representative of the Lowell District Office of the Social Security Administration is requested to attend and report about the defendant-tenant’s representative payee status.

The Clerk and Tenancy Preservation Project clinician shall communicate the Court’s request to the Social Security Administration, both by telephone and by forwarding a copy of this order.

 

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

AURELIO RIVERA v. GLOUCESTER MILL CONDOMINIUM

 

 

Docket # No. 08-CV-00106

Parties: AURELIO RIVERA v. GLOUCESTER MILL CONDOMINIUM

Judge: /s/David D. Kerman

Associate Justice

Date: June 24, 2008

ORDER

 

The stipulation filed on June 18, 2008, is approved. It is further ordered that the documents to be submitted to the Court at least two weeks prior to any further hearing in the case, pursuant to the stipulation, shall include written argument, with citations to pertinent authorities, addressing the following two questions:

 

(1) whether the Gloucester Mill Condominium, Amendment to the Master Deed dated January 21, 2000, which states:

 

all draperies, blinds or other window treatments shall have an off-white color or a color approved by the Trustees; all windows shall be equipped with venetian blinds of a type approved by the Trustees; and no signs or advertising may be displayed in the window of any Unit. This subparagraph shall not restrict the right of Unit Owners to decorate the interiors of their Units as they may desire, or to repair or replace doors or windows provided that no such repair or replacement shall result in any change in the color or physical or aesthetic appearance of the Building.

 

(or any other condominium deed provision, or by-law, or rule) actually prohibits vertical blinds (or drapes) of the type owned by the plaintiff unit owner.

 

(2) whether, under so much of the Amendment to the Master Deed which states:

 

all windows shall be equipped with venetian blinds of a type approved by the Trustees;

 

the Trustees (apparently the predecessor Board of Trustees) did in fact approve the plaintiff unit owner’s vertical venetian blinds (or drapes).

 

 

See, the letter dated November 2, 2000, by the Regional Property Manager Ronda A. Ziner, CPM, which states:

 

I would like to personally apologize on behalf of myself and the Board of Trustees of Gloucester Mill Condominium. When I was at Gloucester Mill Condominium last week I inspected your blinds from the outside and indeed you did install the proper blinds. It appears that the drapes you have on the parking lot side gave an appearance of horizontal blinds which is not what you have.

 

We apologize for this mistake and the fine that was in error assessed.

 

 

See also, the letter dated May 14, 2008, by the Property Manager Toni M. Curcuru referring to a letter dated April 22, 2008, which:

 

informed you that the current Board of Trustees had voted that you were no longer “grandfathered” and are not allowed to display your vertical blinds.

 

 

See also, the affidavit dated June 17, 2008, by Toni Curcuru paragraph 8, which states:

 

Initially, the Board accommodated Mr. Rivera and permitted him to keep the nonconforming blinds until he either sold the unit or chose to replace the current blinds ….

 

 

The case will be scheduled for review at 9:00 o’clock a.m. on Wednesday, December 17, 2008, at the Salem session of this Court. If by that time the matter has not been brought forward by either party, the Court will assume that the parties have resolved their differences and the case will be dismissed without prejudice and without costs to either party.

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

MALONEY PROPERTIES, INC. v. HECTOR DELAFUENTES

 

 

Docket # No. 07-SP-00363

Parties: MALONEY PROPERTIES, INC. v. HECTOR DELAFUENTES

Judge: /s/David D. Kerman

Associate Justice

Date: June 27, 2008

DECISION AND ORDER

 

This summary process action which was served on January 11, 2007, and filed on February 9, 2007, began as a case for nonpayment of two months’ Section 8 program project-based subsidized rent at the Presidential Gardens development in Haverhill. A judge of this court approved a Summary Process Agreement for Judgment dated March 22, 2007, which required the tenants to pay their $340 rent arrearage, and their $685 per month current rents in two equal semi-monthly installments. The tenants further agreed that “compliance with all terms of their occupancy agreement (lease) shall be a continuing obligation under this Agreement for Judgment (without creating a new tenancy) until the arrearage is fully paid or until (the dismissal date).”

A year later, by motion filed on March 31, 2008, marked for hearing on May 1, 2008, the landlord sought execution, grounded on nonpayment and also on misbehaviors by the tenants’ son Hayden DeLaFuentes (said to have occurred on May 20, 2007, and December 29, 2007) and by the tenant wife Lynn DeLaFuentes (said to have occurred on January 13, 2008, and March 15, 2008). On May 1, 2008, a judge of this court approved an amended Summary Process Agreement for Judgment, which had been negotiated with the assistance of a housing specialist, and which requires the tenants to vacate the premises by June 30, 2008.

Before the court is a motion by the tenants, who are now represented by counsel, to vacate the amended Agreement for Judgment under MRCvP Rule 60(b)(6) on grounds of unconscionability. The tenants allege both procedural and substantative unconscionability in the amended Agreement for Judgment. After hearing and consideration of the moving and opposition papers, I deny the tenants’ motion.

 

 

 

 

1. Procedural unconscionability

 

It is true of course that in negotiating the May 1, 2008, amended Agreement for Judgment, the tenants were not represented by counsel. However, as the tenants’ moving papers [Doc.#13. #16] point out, legal advisory services, and lawyer-assisted negotiation services at mediation, if not full legal representation at trial, were available to the tenants through the Lawyer for the Day program at this court. The tenants, however, did not avail themselves of these services.

It is also true that the “head-of-household” tenant Hector DeLaFuentes is a native Spanish-speaker and speaks English only as a second language. However, as the tenants’ moving papers point out, the tenant wife Lynn DeLaFuentes is a native English-speaker — who in fact speaks no Spanish. Further, it appears that Hector DeLaFuentes is fluent in English — indeed, his fluency is such that, according to the landlord’s representations which the tenants do not dispute, he often translates to and from English and Spanish for the benefit of his neighboring Spanish-speaking tenants. In the circumstances, it is clear that the May 1, 2008, negotiation of the amended Agreement for Judgment did not suffer because of language difficulties.

I accept that the tenants, in comparison to their landlord, were disadvantaged at the May 1, 2008, negotiation of the amended Agreement for Judgment, both by lack of English as a first language on the part of the “head-of-household” tenant and by lack of counsel. I am also aware that all litigants, and especially self-represented non-English speaking tenants, are subject to considerable pressures in the negotiation, mediation, and litigation processes, perhaps especially so in eviction cases. In this particular case, however, the pressures that the tenants were subjected to derived mainly from the strength of their landlord’s case, and from the fact that four of their tenant-neighbors had taken time off from work and other endeavors to come to court to testify about the abuse and misconduct committed by members of the defendant tenant family.

The tenants do not show that the May 1, 2008, amended Agreement for Judgment should be set aside on grounds of procedural unfairness or unconscionability.

 

 

2. Substantative unconscionability

 

In their motion the tenants do not deny that abusive conduct occurred, and that it occurred for a considerable period of time, both on the part of their son Hayden DeLaFuentes, and on the part of the tenant wife Lynn DeLaFuentes.

They state, however, that the son Hayden DeLaFuentes, whose disabilities include Tourette’s Syndrome, was removed from the lease on December 12, 2007, and that he now lives with his grandparents in Groveland. The tenants state that the wife Lynn DeLaFuentes is also disabled, due to fibromyalgia, arthritis, carpal tunnel syndrome, knee replacement, chronic pain, anxiety, and depression. The wife’s therapist, Sally Pelletier, LCSW, of the Health and Education Services, Inc. agency in Haverhill, submitted a three-page letter dated June 10, 2008, detailing her weekly efforts and those of her patient, over the past five months, in support of the tenants’

“Reasonable Accommodation Request for Lynn DeLaFuentes.” The social worker states that her patient is medication-compliant and open to trying new medications when current medications are not effective; that the patient is “committed to her own health” and is expected to continue to make progress. Unfortunately, however, the social worker is not able to predict any significant improvement in the near or immediate future in the patient’s impulse control, coping skills, verbal responses, and outbursts; instead, she says that the patient has only “moderate insight” into her illnesses and that she can identify, only after the fact, reactions which are inappropriate.

The tenants’ formal written “Reasonable Accommodation Request for Lynn DeLaFuentes” dated June 2, 2008, lists five items: (1) bi-weekly (actually semi-monthly) payments of rent through automatic deposits; (2) transfer of the family to another Presidential Gardens apartment, away from their current next-door neighbor (which the social worker says should be to an end unit with only one immediately adjoining next-door neighbor); (3) providing Lynn DeLaFuentes with her own private, fenced-off garden; (4) providing management and administrative notices in Spanish; and (5) providing copies of notices of management and administrative meetings to the tenant’s counselor (the wife’s social worker).

But as the landlord’s lawyer’s letter dated June 17, 2008 [Doc.#17] correctly points out, the tenants’ “Reasonable Accommodation Request for Lynn DeLaFuentes” is not reasonably related to preserving their tenancy because there is no link shown between the tenant’s disabilities and the most serious lease offenses; it is not shown that the future behavior of Lynn DeLaFuentes will improve so as to comply with lease requirements; and it is not shown that any further accommodation on the part of the landlord might eliminate or sufficiently reduce the risk of lease-violating behaviors.

The tenants’ post-hearing submission [Doc.#18] filed on June 25, 2008, states that Lynn DeLaFuentes is now or soon will be newly enrolled in a “structured” social behavior day treatment program that includes group therapy, individual counseling, and on-site medication monitoring, through the Cornerstone agency in Haverhill, which will also provide psychological testing. The tenants ask that eviction proceedings be delayed so that it can be determined whether the new program has an effect.

That Lynn DeLaFuentes is starting a new program is entirely reasonable, where past efforts have not been successful. However, it is not reasonable to further delay this case, at the risk of repeated lease-violating behavior, to the detriment of the landlord and other tenants. See, Andover Housing Authority v. Shkolnik, 443 Mass. 300, 311-312, 820 N.E.2d 815, 824-825 (2005) (rejecting the idea that “indefinite requests for ‘more time’” to address a disabling condition are reasonable).

I am not unmindful that considerable hardship is visited upon this tenant family by reason of their dislocation from the Section 8 program project-based subsidized apartment at the Presidential Gardens development in Haverhill. However, it is the responsibility of the landlord to manage the development in such a way as to protect the quiet enjoyment of all tenants, not only those who are handicapped, and not only those whose rents are subsidized. The record in this case shows that the landlord has attempted to accommodate the handicap-related needs of the defendant tenant family, but despite the landlord’s reasonable accommodations, the

tenants are either unwilling or unable to conform their conduct to the requirements of continued occupancy.

The tenants do not show that the May 1, 2008, amended Agreement for Judgment should be set aside on grounds of substantative unfairness or unconscionability.

 

 

ORDER

 

The motion by the defendant-tenants to vacate the May 1, 2008, amended Agreement for Judgment is denied. The issuance of execution will be further stayed through July 31, 2008, on the express condition that there be no further misconduct during the stay.

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

PENELOPE 120, INC. v. EVA ALEXIS

 

 

 

 

Docket # No. 08-SP-00276, No. 08-CV-00076

 

Parties: PENELOPE 120, INC. v. EVA ALEXIS

 

Judge: /s/David D. Kerman

Associate Justice

 

Date: July 7, 2008

 

MEMORANDUM AND ORDER

 

In accordance with Supreme Judicial Court Rule 3:09, Canon 3(7)(a)(ii), the parties are notified that on July 1, 2008, the undersigned judge received an ex parte telephone communication from Lillian C. Andruszkiewicz, First Assistant Clerk of the Supreme Judicial Court for Suffolk County, who inquired about scheduling and administrative matters in the above numbered cases, relative to Supreme Judicial Court case no. 2008-0249. The ex parte communication did not deal with substantive matters. There was communicated no factual information concerning the cases that is not part of the case record. The substance of the ex parte communication concerned the scheduling and administrative, and recusal, consolidation, severance, and discovery issues that were heard and ruled upon at the hearing of the cases at the Lynn session of this court on June 17, 2008.

 

The clerk of this court will forthwith arrange for the preparation and filing of verbatim transcripts of the proceedings held in this court on February 5, 2008, March 25, 2008, May 6, 2008, May 20, 2008, and June 17, 2008, and of all future hearings in the matter pending further order, and when so filed the clerk will send copies of the transcripts to the Clerk of the Supreme Judicial Court for Suffolk County.

 

Counsel for the parties will report in writing within thirty days of this order the status of their discovery and of their readiness for trial.

 

The clerk will send a copy of this order to counsel for the parties and also to the Clerk of the Supreme Judicial Court for Suffolk County.

 

 

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

THIM KHAN v. GEORGE CHAMBERAS

 

 

 

 

Docket # No. 05-CV-00068

 

Parties: THIM KHAN v. GEORGE CHAMBERAS

 

Judge: /s/David D. Kerman

Associate Justice

 

Date: July 10, 2008

 

DECISION AND ORDER

 

Before the court in this case for childhood lead paint poisoning is the plaintiff’s motion for partial summary judgment as to liability. Over the individual defendants’ opposition, I allow the motion.

 

1. The defendants George Chamberas and Cynthia Chamberas say that their rent ledgers show that the property in question was not rented to the plaintiff’s family, and that they did not know, and could not have known, that a child under the age of six years was living there. See, Underwood v. Risman, 414 Mass. 96, 605 N.E.2d 832 (1993). However, the defendants do not support their claim by affidavit, nor do they provide the court with copies of any rent ledger.

 

That the plaintiff child lived with his family at the rental premises located at 20 North Franklin Court in the City of Lowell in 1987 and 1988 is shown: by the affidavit dated November 9, 2007, by the plaintiff child’s mother Chheang Chin; by the plaintiff child Thim Khan’s blood lead test and medical records made and kept by the Childhood Lead Poisoning Prevention Program (CLPPP), the Lowell Community Health Center (LCHC), and the Lowell General Hospital (LGH); and by the premises inspection report by CLPPP.

 

2. That the child was born on September 20, 1984, is shown by the CLPPP, LCHC, and LGH records.

 

3. The individual defendants George Chamberas and Cynthia Chamberas say that, because Universal Property Associates, Inc. was the record owner of the property, the individual defendants were not

 

the owners or landlords. Exhibited to the defendants’ opposition is a copy of a deed dated September 26, 1985, by George A. Chamberas and Cynthia C. Chamberas to Universal Property Associates, Inc. for consideration of one dollar. Also exhibited is the transcript of deposition testimony given on December 7, 2006, by George A. Chamberas. However, these exhibits do not aid the defendants’ opposition, but instead help to demonstrate that the plaintiff is entitled to summary judgment.

 

That the premises were rented from and owned and controlled by the defendants is shown: by the affidavit dated November 9, 2007, by the plaintiff child’s mother; by the Collateral Mortgage signed not only by “UNIVERSAL PROPERTY ASSOCIATES, INC. TRUSTEE OF 20 N. FRANKLIN COURT TRUST, BY G.A. Chamberas, Treasurer” but also by “GEORGE A. CHAMBERAS, Individually” and by “CYNTHIA C. CHAMBERAS, Individually” on January 29, 1988; by the defendant George A. Chamberas’ answers to written interrogatories nos. 2 and 3 (stating that he worked for, managed, exercised control of, or had a legal or equitable interest in the subject property during the time relevant); and by the defendant George A. Chamberas’ deposition testimony (p.36 “My direct involvement was to take care of any responsibilities that came with the properties ….”; pp.36-38 (performing maintenance); p.37 (showing apartments); p.38 (collecting rents); pp.55-56 (keeping leases); pp.58-59 (keeping rent books and records); pp.63-67 (filing evictions); p.76-77 (attending court in response to code violation complaints).

 

The facts of this case do not resemble the case that the defendants rely on, Bellemare v. Clermont, 69 Mass.App. 566, 870 N.E.2d 624 (2007), affg N.E.Hsg.Ct. No.04-CV-00017 (August 10, 2005), nor do they resemble the facts of Commonwealth v. Advantage Bank, 406 Mass. 885, 550 N.E.2d 1388 (1990).

 

4. That the child suffered elevated blood lead levels as high as 83 µg/dL Pb and 842 µg/dL EP on May 5, 1987, is shown by the CLPPP and LCHC blood test records.

 

5. That he was admitted to the Lowell General Hospital for plumbism and pica and received five-days of calcium EDTA therapy there, from May 5, 1987, until May 11, 1987, and again from June 1, 1987, until June 6, 1987, is shown by the LGH hospital records.

 

6. That the premises were contaminated with dangerous levels of lead is shown by the premises inspection report dated May 6, 1987, made and kept by CLPPP.

 

7. Absent any indication of an “alternative source” of the child’s ingestion or inhalation of lead, the summary judgment record establishes that the likely source of the child’s lead poisoning was lead-contaminated materials at his home.

 

 

 

 

ORDER

 

The plaintiff’s motion for partial summary judgment as to liability is allowed on all counts of the complaint (negligence, habitability, and the Lead Poisoning Prevention and Control Law, Gen.L. c.111 §189A-§199B).

 

The parties or their counsel may arrange with the Clerk for the case to be scheduled for assessment of damages. The assessment will be by a jury, as trial by jury has been demanded by the defendants and also by the plaintiff.

 

 

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

JOHN FOSTER v. MICHELLE BEDARD

 

 

 

 

Docket # No. 08-SP-02093

 

Parties: JOHN FOSTER v. MICHELLE BEDARD

 

Judge: /s/David D. Kerman

Associate Justice

 

Date: July 10, 2008

 

DECISION AND ORDER

 

The parties have a one year written lease that will expire on July 31, 2008. Rent under the lease is due at the rate of $1,300 per month, but the parties agreed during the term of the lease to a rent reduction to the rate of $1,100 per month. There is presently unpaid rent in the amount of $2,600 through the end of the lease term on July 31, 2008.

 

The landlord’s constable’s “RETURN OF SERVICE” on the fourteen days NOTICE TO QUIT FOR NON-PAYMENT OF RENT states that he “served” the Notice to Quit on May 29, 2008.

 

The constable’s “RETURN OF SERVICE” on the SUMMARY PROCESS SUMMONS AND COMPLAINT states that he “served” the Summary Process on June 12, 2008.

 

Thus, the Summary Process Summons and Complaint was “served” on the fourteenth day of the Notice to Quit.

 

The Summary Process Complaint was prematurely brought, before expiration of the time fixed in the notice to quit. See, Decker v. McManus, 101 Mass. 63 (1869); Johnson v. Stewart, 77 Mass. (11 Gray) 181 (1858).

 

It is fundamental that a notice to quit must give the tenant a full 14 days if for nonpayment, or else a full 30 days (and at least a full rental period), to vacate. See, Connors v. Wick, 317 Mass. 628, 59 N.E.2d 277 (1945) (notice given on the first day of the month and ending on the last day of that month was less than a full rental period); Oakes v. Munroe, 62 Mass. (8 Cush.) 282 (1851) (notice to quit “forthwith” for nonpayment was invalid, although timely given 14

days before suit).

 

 

 

It is also fundamental that a summary process action is “commenced” upon service under USPR Rule 2(b), unlike other civil actions which are “commenced” upon filing under MRCvP Rule 3.

 

The landlord’s complaint must be dismissed. But of course, the dismissal is without prejudice to the institution of a new, timely suit.

 

In this case there exists significant hardship on the part of both parties.

 

The landlord, who voluntarily reduced the lease contract rent, has not been paid more than two months’ rent at the reduced rental rate. He states that he has agreed to re-rent the premises to another tenant beginning August 1, 2008.

 

The tenant’s household consists of herself and her two disabled children, a two year old daughter and a two month old son. The tenant herself suffered a stroke on April 30, 2008, while giving birth to her son. She has only recently returned to work.

 

In the circumstances, justice would be best served if the tenant is able to relocate before the end of this month. It would seem that this particular tenant should be particularly eligible for subsidized housing in view of her and her family’s physical disabilities.

 

 

ORDER

 

The summary process summons and complaint is dismissed.

 

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

LANDFALL APARTMENTS v. AARON HOWELL

 

 

 

 

 

Docket # No. 08-SP-02095

 

Parties: LANDFALL APARTMENTS v. AARON HOWELL

 

Judge: /s/David D. Kerman

Associate Justice

 

Date: July 15, 2008

 

DECISION AND ORDER

 

After hearing the parties and considering their evidence, I find, rule, and order as follows:

 

The plaintiff-landlord is entitled to recover judgment for unpaid rent of $2,100 at $1,000 per month through July 31, 2008, plus $185 statutory costs, and dismissal on the merits of the tenants’ counterclaims. The balance due the plaintiff-landlord totals $2,285, inclusive of costs.

 

Although the tenants do not prevail on their counterclaims, the claims are colorable and appear to be made and presented in good faith. Accordingly, the judgment of summary process for possession is subject to the defendant-tenant’s cure rights under Gen.L. c.239 §8A ¶5. If the defendant timely files proof of payment within 10 days of this order (7 days by statute, and 3 days by MRCvP Rule 6(d) for mail), judgment shall enter dismissing the complaint. Otherwise, judgment for possession shall enter for the plaintiff, together with money damage judgment for the balance found due.

 

 

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

GMAC MORTGAGE, LLC v. KAREN ALLIETTE et al

 

 

 

 

Docket # No. 08-SP-00379

 

Parties: GMAC MORTGAGE, LLC v. KAREN ALLIETTE et al

 

Judge: /s/David D. Kerman

Associate Justice

 

Date: July 24, 2008

 

DECISION AND ORDER

 

On June 4, 2004, the defendants in this summary process action took title by deed from one Jose A. Cotto, gave a note for $227,000 to the EquiFirst Corporation, and gave a mortgage to the Mortgage Electronic Registration Systems, Inc. [MERS].

 

On December 6, 2007, MERS assigned the mortgage to JP Morgan Chase Bank, NA.

 

On January 21, 2008, GMAC Mortgage, LLC had delivered to the defendants’ abode a so-called “72 Hour Notice to Quit and Vacate Premises.” The “72 Hour Notice” stated “GMAC Mortgage, LLC is the owner.”

 

On January 28, 2008, GMAC Mortgage, LLC brought this action in its own name as “OWNER” by serving the defendants with a Summary Process Summons and Complaint.

 

 

On January 31, 2008, GMAC Mortgage, LLC gave a “Massachusetts Foreclosure Deed by Corporation” to itself. The deed stated that GMAC Mortgage, LLC was “the current holder by assignment of a mortgage [from MERS]” for consideration of $189,000.

 

On February 4, 2008, GMAC Mortgage, LLC filed its summary process summons and complaint and return of service with this court.

 

On February 11, 2008, the defendants filed their motion for summary judgment of dismissal, on the ground that they themselves were the record owners, that GMAC Mortgage, LLC was not the owner, and that GMAC Mortgage, LLC had no standing to bring a summary process action.

 

On February 12, 2008, JP Morgan Chase Bank, NA assigned the mortgage to GMAC Mortgage, LLC.

 

 

 

On these undisputed facts, it is clear that GMAC Mortgage, LLC’s summary process action was prematurely brought, before it took title. See, Decker v. McManus, 101 Mass. 63 (1869); Johnson v. Stewart, 77 Mass. (11 Gray) 181 (1858).

 

Although it does not matter in this case, it should be noted that a summary process action is “commenced” upon service under USPR Rule 2(b), unlike other civil actions which are “commenced” upon filing under MRCvP Rule 3.

 

The plaintiff says that it has title now, citing REBA Title Standard No. 58 (“Out of Order Recording of Mortgage Discharges and Assignments”), and that it is now entitled to recover judgment for possession in summary process under the equitable doctrines of after-acquired title and estoppel by deed.

 

Although it does not matter in this case, it should be noted that the equitable doctrines do not apply here. See, Ecclesiastes 3:1, Inc. v. Cambridge Savings Bank, 10 Mass.App. 377, 383, 407 N.E.2d 1318, 1322 (1980) (“There can be no estoppel by deed, where there is no deed”); Robert v. O’Connell, 269 Mass. 532, 536, 169 N.E. 487, 488 (1930) (estoppel by deed arises only between parties or privies to the deed).

 

The plaintiff says that if there are grounds to set aside the foreclosure the summary process defendants cannot defend this suit on that ground, and must instead seek affirmative relief in equity, citing Wayne Inv. Corp. v. Abbott, 350 Mass. 775, 215 N.E.2d 795 (1966) (rescript).

 

This may be so, but as the defendants point out, the plaintiff foreclosing mortgagee or its assignee must show a right to possession based on title that existed at the time when its summary process action was brought. See, Wayne Inv. Corp. v. Abbott, 350 Mass. 775, 215 N.E.2d 795 (1966) (rescript).

 

The defendants insist upon their motion for dismissal, and it is clear that their motion must be allowed. Of course it is also clear that the dismissal of this case will be without prejudice to the institution of a new, timely suit.

 

 

ORDER

 

Enter judgment dismissing the summary process complaint.

 

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

CAPE ANN CAMP SITE, INC. v. DONALD KANGAS

 

 

 

 

Docket # No. 03-SP-00994

 

Parties: CAPE ANN CAMP SITE, INC. v. DONALD KANGAS

 

Judge: /s/David D. Kerman

Associate Justice

 

Date: July 28, 2008

 

RULINGS AND ORDER

 

1. Parties and pleadings

 

The litigating tenant parties in this case include Diane M. Curran and her late husband Guy P. Parker whose intervenors’ complaint [Doc.#20] against the corporate landlord CACS was filed on June 1, 2004. Parker died on October 28, 2005, while living in the state of New Hampshire. The parties assume, as do I, that Parker’s death did not extinguish his claims. See, Gasior v. Massachusetts General Hospital, 446 Mass. 645, 651 fn. 9, 846 N.E.2d 1133, 1138 fn.9 (2006) (discrimination claim under Gen.L. c.151B for both compensatory and punitive damages survived employee’s death as a contract claim among those that survive “by the common law”; whether claim survived under the “enumeration statute,” Gen.L. c.228 §1(2)(a),(d), as a tort action for damage to person or damage to real or personal property not considered); Lattuca v. Robsham, 442 Mass. 205, 217, 812 N.E.2d 877, 887 (2004) (survival of claim under Gen.L. c.93A p. 11 not considered).

 

The tenants’ attorney seasonably filed a suggestion of death [Doc.#36] on February 22, 2006. Curran’s out-of-state attorney, who is not involved in this litigation, filed a petition for administration of probate of Parker’s estate in the New Hampshire Probate Court on July 25, 2006. The petition states “The only asset is a potential recovery in a civil lawsuit that is on-going in Massachusetts.” Curran’s fiduciary bond as representative of the deceased party’s estate was approved on October 18, 2006. [Doc.#90, Exh.A]. Curran’s supplemental third party complaint [Doc.66A] against the individual landlords which she filed on March 26, 2008, properly names herself both individually and as representative of her late husband’s estate. As to the original intervenors’ complaint [Doc.#20] against the corporate landlord, however, there has not yet been ordered a formal substitution of the proper parties under MRCvP Rule 25(a)(1). I do so now on the tenants’ motion to amend [Doc.#92, 93] filed on July 23, 2008, over the landlords’ objections [Doc.#90] filed on July 16, 2008.

 

 

 

MRCvP Rule 25(a)(1) provides: “Substitution of Parties. Death. If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the representative of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons. Unless the motion for substitution is made within one year after the date of approval of the bond of the representative of the deceased party, the action shall, upon notice and hearing, be dismissed unless the failure of the surviving party to move for substitution was the result of excusable neglect. If the court finds that the representative of the deceased party has failed within a reasonable period of time after the date of the approval of his bond to notify in writing the surviving party of the decedent’s death and to file a suggestion of death upon the record it shall find excusable neglect for purposes of this rule and Rule 6(b).”

 

To be sure, the tenants’ motion is not “made within one year after the date of approval of the bond of the representative of the deceased party” as provided by Rule 25(a)(1). And to be sure, neglect of any kind by a party or an attorney is not to be condoned. However, in this case there was no neglect to inform the opposing parties and the court of Parker’s death. Indeed, the tenants’ attorney filed the suggestion of death four months after Parker died, eight months before Curran’s fiduciary bond was approved, and twenty months before the one year time provided by Rule 25(a)(1) expired. Nor was there neglect to properly name the parties in the supplemental third party complaint against the individual landlords. All that is involved here is an attorney’s oversight and neglect to formally move the court for an order substituting the parties in the original intervenors’ complaint. The neglect is slight. The formal substitution of parties in the original intervenors’ complaint can cause no prejudice. I find that the neglect is “excusable neglect” within the meaning of Rule 25(a)(1), and as an exercise of discretion I allow the late amendment.

 

See, MRCvP Rule 15(a): “Amended and Supplemental Pleadings. Amendments. *** leave [to amend pleadings] shall be freely given when justice so requires.”; Rule 15(c): “Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment (including an amendment changing a party) relates back to the original pleading.”; Rule 15(d): “Supplemental Pleadings. *** Permission [to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented] may be granted even though the original pleading is defective in its statement of a claim for relief or defense.”

 

 

 

 

See, Goulet v. Whitin Machine Works, Inc., 399 Mass. 547, 549-554, 506 N.E.2d 95, 97-100 (1987) (denial of motion to amend complaint to add new breach of warranty claim constituted an abuse of discretion in the absence of a showing of prejudice); Manfrates v. Lawrence Plaza Ltd. Partnership, 41 Mass.App. 409, 413-415, 671 N.E.2d 506, 509-510 (1996) (amendment was properly allowed, where the added defendant had already been brought into the case as a third party defendant, had actively participated in discovery, was on notice of the plaintiffs’ claims, the amendment alleged no new theories, and a trial was not imminent, but there had been a delay of over seven years).

 

 

2. Chapter 93A demand letters

 

The landlords contend [Doc.#90] that the tenants’ demand letters are insufficient and fatally defective, such that their claims under Chapter 93A fail. There is no merit to this contention.

 

As to the Kangas tenants, at least as to the corporate landlord, no demand letter was necessary because their Chapter 93A claims were contained in their answer and counterclaims [Doc.#2] which their attorney filed on May 5, 2003. See, Gen.L. c.93A §9(3) (“The demand requirements of this paragraph shall not apply if the claim is asserted by way of counterclaim or cross-claim”).

 

But by their undated letter sent on October 14, 1999, the Kangas tenants, then acting pro se, sent a Chapter 93A demand to Robert Matz, Cape Ann Campsite, in response to the landlords’ July 26, 1999, and September 29, 1999, notices to quit. The Kangas letter specifically cited Gen.L. c.93A and Gen.L. c.140 §32L(7A), (8). The letter specifically complained of “unfair and deceptive trade practices.” The letter specifically demanded that the landlords comply with the relevant law requirements for “discontinuance” of a mobile home park, including the park owner’s obligations to assist tenants in relocating, and to pay the appraised values of the tenants’ mobile homes.

 

One week later, Parker’s attorney sent an almost identical letter dated October 21, 1999, to Robert Matz, Cape Ann Campsites. The Parker letter also stated that it was in response to the landlords’ July 26, 1999, and September 29, 1999, notices to quit; it also cited Gen.L. c.93A and Gen.L. c.140 §32L(7A), (8); it also complained of unfair and deceptive trade practices; and it also demanded that the landlords comply with the relevant law requirements for discontinuance of a mobile home park, including the park owner’s obligations to assist tenants in relocating, and to pay the appraised values of tenants’ mobile homes.

 

 

 

One day later, the Office of the Attorney General delivered a letter dated October 22, 1999, to Robert E. Matz, President of Cape Ann Campsite, Inc., in connection with the investigation of consumer complaints against Mr. Matz as an individual and as trustee of the Matz Family Nominee Trust and Cape Ann Campsite, Inc. The Attorney General’s letter claimed, generally, that the landlords “have engaged in a pattern of verbal threats to discontinue the community”; and the letter contained, in almost five single-spaced typewritten pages, an extensive, detailed description of various violations of the Manufactured Housing Communities Law, Gen.L c.140 §32A et seq., the Attorney General’s Regulations thereunder, 940 C.M.R. §10.00 et seq., the Consumer Protection Law, Gen.L. c.93A §2(a), and the Attorney General’s Regulations thereunder, 940 C.M.R. §3.00 et seq. The letter constituted formal notice under Gen.L. c.93A §4 ¶2 of the Attorney General’s intention to file suit and of the opportunity for the landlords to meet before suit is filed.

 

The landlords responded to the tenants’ demands by their attorney’s almost identical letters, to Parker’s attorney dated November 22, 1999, and to the Kangases dated December 2, 1999. Both response letters were untimely, not made within thirty days of the tenants’ written demands, and the tenants contend that the contents of the responses, which contained no monetary offer, constitute “refusal[s] to grant relief … in bad faith with knowledge or reason to know that the act or practice complained of violated [Gen.L. c.93A p. 2(a)]” as entitle the tenants to multiple damages under Gen.L. c.93A p. 9(3).

 

The landlords did not respond in writing to the Attorney General’s October 22, 1999, demand letter. Thereafter, the Attorney General sent a letter dated September 17, 2001, to the landlords’ attorney asking for written assurances that the landlords would not discontinue the CACS manufactured housing community without following the requirements of law; the landlords refused to sign the Attorney General’s proposed assurance agreement. Thereafter, by letter dated February 21, 2003, the landlords’ attorney sought clarification whether CACS was still designated as a “mobile home park” in that it had less than three mobile homes thereon; the Attorney General responded by letter dated February 26, 2003, that “this Office is not permitted to offer legal opinions, except to certain Massachusetts officials, acting in their official capacity.” Thereafter, by letter dated June 27, 2003, the Attorney General informed the landlords “that simply because there are now only two year-round homes at Cape Ann does not imply that Cape Ann need not comply with the provisions of G.L. c.140, specifically with the provisions of G.L. c.140 §32L, should the Matz family or any successors in interest desire to discontinue the community”; by letter dated July 21, 2003, the landlords’ attorney stated that “discontinuing the community is not an issue at present, as there is no intent to do so, therefore, whether my client has to abide by General Laws, c.140 or any other statutes is premature at this time.”

 

 

 

As to the Parker-Curran tenants, at least, there must have been sent prior to suit a written demand for relief: “[1] identifying the claimant and [2] reasonably describing the unfair or deceptive act or practice relied upon and [3] the injury suffered.” See, Gen.L. c.93A §9(3) (“At least thirty days prior to the filing of any such action, a written demand for relief, identifying the claimant and reasonably describing the unfair or deceptive act or practice relied upon and the injury suffered, shall be mailed or delivered to any prospective respondent.”)

 

The landlords point out that the October 21, 1999, demand letter was sent by the tenants’ attorney on behalf of Guy P. Parker and did not specifically mention his wife Diane M. Curran. At the time when the letter was sent, however, Parker and Curran were married and both lived in their mobile home as year-round tenants of the CACS manufactured housing community. The question is not entirely free of doubt, but I find and rule that the attorney’s letter, in context, reasonably and sufficiently identified Curran as a Chapter 93A claimant.

 

Equally so, where at the time when the Attorney General’s October 22, 1999, demand letter was sent, only three, or possibly four, year-round tenants (Parker-Curran, Kangas, Williams, and Freeman who left in October 1999) remained at the CACS manufactured housing community, I find and rule that the Attorney General’s letter, in context, reasonably and sufficiently identified Parker-Curran and Kangas as Chapter 93A claimants.

 

It should be noticed that the statute (which uses the passive voice “shall be mailed or delivered”) neither prevents a claimant from personally mailing or delivering his or her demand letter, nor prevents a claimant’s attorney from mailing or delivering a demand letter on his client’s behalf. Nor does the statute prevent the Attorney General from mailing or delivering a demand letter on behalf of individual consumer claimants. Where the Attorney General’s letter satisfies the written demand for relief requirements of Gen.L. c.93A §9(3), the Parker-Curran and Kangas claimants are entitled to rely on the Attorney General’s letter as satisfying their written demand for relief prerequisite to suit obligations under Chapter 93A. See, Gen.L. c.93A §4 ¶1 (“Said court may issue temporary restraining orders or preliminary or permanent injunctions and make such other orders or judgments as may be necessary to restore to any person who has suffered any ascertainable loss by reason of the use or employment of such unlawful method, act or practice any moneys or property, real or personal, which may have been acquired by means of such method, act, or practice.”)

 

I find and rule that the contents of the October 14, 1999, Kangas pro se letter, of the almost identical Parker’s attorney letter dated October 21, 1999, and of the Attorney General’s letter dated October 22, 1999, each are sufficient to meet the written demand for relief requirements of the Consumer Protection Law, Gen.L. c.93A §9(3).

 

 

 

The landlords point out that none of the three Chapter 93A demand letters were specifically addressed to the individual landlord Eileen M. Matz in her individual capacity. But Robert E. Matz is the president and his wife Eileen M. Matz is the treasurer of the closely held, family owned Cape Ann Camp Site, Inc. corporate entity. In addition, both the husband and the wife are trustees of the Matz Family Nominee Trust. The Trust, which is referred to in the Attorney General’s letter, owns and leases the land upon which CACS is located and operates.

 

CACS, like any corporation, can act only through its officers and agents. Notice that is given to a corporate officer or agent constitutes notice to the corporation. In the particular circumstances, where the corporation is a closely-held, family-owned business, the three notices given to the corporation and to the person who is the corporate president and the husband of the corporate treasurer, adequately notified the person who is the corporate treasurer as well. See generally, Sunrise Properties, Inc. v. Bacon, Wilson, Ratner, Cohen, Salvage, Fialky & Fitzgerald, P.C., 425 Mass. 63, 66-67, 679 N.E.2d 540, 543 (1997) (a corporation can only act through its agents; notice to a corporation’s agent is notice to the corporation); Townsends, Inc. v. Beaupre, 47 Mass.App. 747, 751-752, 716 N.E.2d 160, 164 (1999) (corporate veil need not be pierced for a corporate officer to be personally liable for a tort committed by the corporation if he personally participated in the tort, as for example, by directing, controlling, approving, or ratifying the act that injured the aggrieved party).

 

It should be remembered that the rules governing service of process, MRCvP Rule 4(d), (e), and of misjoinder and misnomer of parties, MRCvP Rule 12(b)(7), (8), have no application and are not here involved. All that is involved here is the giving of notice. See generally, Ryan v. Sylvester, 358 Mass. 18, 260 N.E.2d 148 (1970), and the authorized agent, partner, tenant in common, servant, spouse, co-resident, family member, household member, mail box, and open window cases there collected.

 

See also, the snow or ice personal injury notice cases: Baldassari v. Produce Terminal Realty Corp., 361 Mass. 738, 282 N.E.2d 649, 652 (1972) (snow or ice personal injury notice under Gen.L. c.84 §21, addressed to one corporation, constituted notice to another corporation, as a matter of law, where the notice was delivered to a person who was the treasurer of both corporations); Blanchard v. Stone’s, Inc., 304 Mass. 634, 638-639, 24 N.E.2d 688, 690 (1939) (“A notice need not give the name of the person who is charged with responsibility for the accident if enough appears from the notice to show that it was intended to be given to a particular person and that it was received by him.”); Stefani v. Freshman, 232 Mass. 354, 122 N.E. 293 (1919) (snow or ice personal injury notice “To the Person, Persons or Corporation in Control of the Premises Situated on …” held properly addressed).

 

 

 

Although the question is very close, I find and rule that each of the three Chapter 93A demand letters adequately notified the individual landlord Eileen M. Matz of the litigating tenant parties’ demands for relief.

 

***

 

The Chapter 93A demand letters at issue in this case were all sent, in quick succession, during the month of October 1999. The principal relief demanded in those letters was rescission of the landlords’ July 26, 1999, and September 29, 1999, notices to quit, and the giving of assurances that the landlords would not discontinue the CACS manufactured housing community except in compliance with the Manufactured Housing Communities Law, Gen.L. c.140 §32A-§32S, and Manufactured Housing Community Regulations, 940 C.M.R. §10:00.

 

Since that time, the landlords have in fact discontinued the CACS facility as a year-round manufactured housing community, and CACS now operates only as an overnight or seasonal campsite. The litigating tenants in this case, who were the last remaining year-round tenants, moved from the CACS manufactured housing community in May and June 2004, and disposed of their mobile homes in July and September of that year.

 

Also since that time, by order issued on November 21, 2005, I allowed the landlords’ motion for summary judgment on so much of the tenants’ claims as alleged (1) breach of habitability, negligence, and violation of quiet enjoyment, based on the owners’ obligations to provide water, outdoor lighting, removal of rubbish and snow and ice – apart from physical conditions claims based on defective and negligently maintained septic and sewer systems, (2) reprisal under the Manufactured Housing Communities Law, Gen.L c.140 §32N, §32P ¶4, and the Retaliatory Eviction Law, Gen.L. c.186 §18, and (3) intentional or reckless infliction of emotional distress under the common law tort, George v. Jordan Marsh Co., 359 Mass. 244, 268 N.E.2d 915(1971); Agis v. Howard Johnson Co., 371 Mass. 140, 355 N.E.2d 315 (1976) – apart from emotional distress claims as items of damage resulting from breach of warranty of habitability, Crowell v. McCaffrey, 377 Mass. 443, 450-451, 386 N.E.2d 1256, 1261 (1979); Simon v. Solomon, 385 Mass. 91, 112-113, 431 N.E.2d 556, 570 (1982), violation of the Quiet Enjoyment Law, Gen.L. c.186 §14, Simon v. Solomon, 385 Mass. 91, 112-113, 431 N.E.2d 556, 570-571 (1982); Homesavers Council of Greenfield Gardens, Inc. v. Sanchez, 70 Mass.App. 453, 874 N.E.2d 497 (2007), and violation of Chapter 93A, Haddad v. Gonzalez, 410 Mass. 855, 864-872, 576 N.E.2d 658, 664-668 (1991).

 

At the present time, the tenants’ remaining claims are for actual and multiple damages for (1) breach of warranty of habitability, (2) negligence, (3) violation of covenant of quiet enjoyment, and (4) unfair and deceptive acts and practices, based on

 

 

the habitability and quiet enjoyment claims, based on claims that the landlords engaged in a pattern of threats and intimidation to discontinue the CACS manufactured housing community, and based on claims that the landlords committed fifteen separate violations of the Manufactured Housing Communities Law, Gen.L. c.140 §32A- §32S, and Manufactured Housing Community Regulations, 940 C.M.R. §10:00, by: [1] failing to post, disclose, and furnish the CACS Rules and Attorney General’s Regulations, [2] promulgating unfair, unreasonable, and unconscionable rules, [3] failing to offer five year leases, [4] failing to offer two year leases on discontinuance, [5] threatening to shut off water and electric service, [6] interfering with access to cable television service, [7] charging unfair rents and rent increases, [8] lodging evictions without cause, [9] failing to give fifteen days notice of request of permit for discontinuance, [10] failing to give two years notice of discontinuance, [11] failing to disclose reasons for discontinuance, [12] failing to conduct and post one hundred mile mobile home site availability surveys, [13] discontinuing the CACS manufactured housing community without good faith, [14] failing to pay relocation costs or appraised values of mobile homes, and [15] frustrating tenants’ efforts to sell their mobile homes on their CACS lots.

 

The landlords point out that the October 1999 demand letters are stale, preceding the discontinuance of the CACS mobile home park by almost five years, and the current state of this litigation by almost nine years. More to the point, the landlords correctly point out that none of the three October 1999 Chapter 93A demand letters contain a demand for monetary relief.

 

This contention is partly specious because the subsequent, post-discontinuance pleadings clearly show that the tenants claim money damages for the appraised values of their homes, Kangas for $61,400 and Parker-Curran for $85,700 ($93,200 less the $7,500 sale price). Still, it is true that neither the October 1999 demand letters nor the pleadings in this case state, in terms of dollars and cents, the value of the tenants’ other claims.

 

Thus, the landlords argue, they have no fair opportunity to tender a settlement that would limit (or extinguish) their liability under Chapter 93A. And, the landlords argue, they should not be required to shoulder the “impossible burden” of tendering a settlement on the basis of incomplete information, that, if later found to be unreasonable or made in bad faith, would expose them to multiple damages, attorney’s fees, court costs and litigation expenses. See, Parker v. D’Avolio, 40 Mass.App. 394, 401-402, 664 N.E.2d 858, 863-864 (1996) (where the plaintiff’s demand letter did not indicate long-term or permanent injuries, and at trial the plaintiff “pegged his case” on subsequent and more conclusive evaluations made one year after the demand letter).

 

 

 

The reasonableness of a tender of settlement must be judged in light of whether the demand letter reasonably sets forth the acts relied on, and must focus on the attendant facts and circumstances as they existed at the time of the demand. See, Parker v. D’Avolio, 40 Mass.App. 394, 402, 664 N.E.2d 858, 863-864 (1996). The standard for “knowledge or reason to know” that the act or practice complained of violated c.93A is that which exists after receipt of the demand letter, not at the time of the alleged violation. The standard is “objective and requires the defendant to investigate the facts and consider the legal precedents.” See, Heller v. Silverbranch Constr. Co., 376 Mass. 621, 627-628, 382 N.E.2d 1065, 1070 (1978). Whether a settlement proposal was reasonable and made in good faith are questions of fact upon which the offerer bears the burden of proof. See, Kohl v. Silver Lake Motors, Inc., 369 Mass. 795, 799, 343 N.E.2d 375, 378 (1976). This determination requires proof that the offerer did not act deliberately to derail the settlement process. Otherwise stated, a wrongdoer “ought not wear out the claimant by unduly delaying settlement” when liability, including causation and damages, is clear or highly likely. “Objective bad faith may be found where a potential defendant offers much less than a case is worth in a situation where liability is either clear or highly likely.” See, Parker v. D’Avolio, 40 Mass.App. 394, 395-396, 401-402, 664 N.E.2d 858, 860, 863-864 (1996).

 

The October 1999 demand letters are legally sufficient, because the statute, Gen.L. c.93A §9(3), does not require that a written demand for relief contain a precise itemization of damages. All that is required is that the demand “reasonably describ[e] the injury suffered.”

 

Still, it is open for the tenants, even at this late date, to mail or deliver, to all three landlords, fresh or supplemental demands for relief, identifying each of the four claimants, reasonably describing each of the unfair or deceptive acts or practices relied upon, and the injury or injuries suffered, and also, perhaps with as much detail as might support an application for prejudgment attachment under MRCvP Rule 4.1(h), specifically itemizing in dollars and cents the extent of their actual damages claims.

 

Thereafter, if the landlords do not within thirty days make a reasonable, good faith written tender of relief, it would be open for the tenants to move to amend or supplement the pleadings under MRCvP Rules 15(a) (“Amendments”), 15(c) (“Relation Back of Amendments”), and 15(d) (“Supplemental Pleadings”); see also, York v. Sullivan, 369 Mass. 157, 338 N.E.2d 341 (1975), to state that fact, and to claim “up to three but not less than two times [the amount of actual damages]” under Gen.L. c.93A §9(3), plus “reasonable attorney’s fees and costs incurred in connection with said action” under Gen.L. c.93A §9(4), on the ground “that the refusal to grant relief upon demand was made in bad faith with knowledge or reason to know that the act or practice complained of violated [Gen.L. c.93A §2(a)].”

 

 

 

Similarly, it is open for the landlords, even at this late date, and either with or arguably without the tenants’ supplemental demands for relief, to make a good faith tender of reasonable settlement. Such a tender would foreclose the possibility of any multiple damages and of any post-tender prevailing-party attorney’s fees and costs. Indeed, such a tender would operate as a complete defense – it would bar the tenants’ recovery beyond the tendered amount and would effectively terminate the lawsuit. See, Slaney v. Westwood Auto, Inc., 366 Mass. 688, 704-705, 322 N.E.2d 768, 779 (1975) (the demand letter serves a dual function, first to encourage negotiation and settlement, second to operate as a control on the amount of damages which the claimant can ultimately recover); Kohl v. Silver Lake Motors, Inc., 369 Mass. 795, 803, fn.7, 343 N.E.2d 375, 380, fn.7 (1976) (“even a wilful or knowing violator” of c.93A may avoid multiple damages and limit the maximum potential damages by making a reasonable offer of settlement; the provision for multiple damages creates a strong incentive for a wilful or knowing violator to make a particularly generous settlement offer); Parker v. D’Avolio, 40 Mass.App. 394, 395 fn.3, 664 N.E.2d 858, 860 fn.3 (1996) (“A reasonable settlement offer limits a landlord’s liability. An offer found to be unreasonable or made in bad faith would not only fail to limit liability but would also expose the landlord to multiple damages.”) Indeed, the “strong incentive” to make a reasonable, even a “particularly generous” offer of settlement is enormous because the multiple damages to be imposed for a “willful or knowing” violation or a “refusal to grant relief upon demand … in bad faith” are cumulatively imposed upon each person “severally,” not on a “joint and several” basis. See, International Fidelity Ins. Co. v. Wilson, 387 Mass. 841, 853-858, 443 N.E.2d 1308, 1315-1319 (1983). And see, Parker v. D’Avolio, 40 Mass.App. 394, 394-395, 664 N.E.2d 858, 859 (1996), where, upon a jury verdict of $1,250,000, multiple damages totaling $5,000,000 plus interest, costs, and attorneys’ fees were awarded (but reversed where the evidence did not support a finding of bad faith).

 

The attention of the parties is directed to the statutory provisions, Gen.L. c.93A §9(3): “Any person receiving such a demand for relief who, within thirty days of the mailing or delivery of the demand for relief, makes a written tender of settlement which is rejected by the claimant may, in any subsequent action, file the written tender and an affidavit concerning its rejection and thereby limit any recovery to the relief tendered if the court finds that the relief tendered was reasonable in relation to the injury actually suffered by the petitioner. In all other cases, if the court finds for the petitioner, recovery shall be in the amount of actual damages or twenty-five dollars, whichever is greater; or up to three but not less than two times such amount if the court finds that the use or employment of the act or practice was a willful or knowing violation of said section two or that the refusal to grant relief upon demand

 

was made in bad faith with knowledge or reason to know that the act or practice complained of violated said section two. For the purposes of this chapter, the amount of actual damages to be multiplied by the court shall be the amount of the judgment on all claims arising out of the same and underlying transaction or occurrence, regardless of the existence or nonexistence of insurance coverage available in payment of the claim. In addition, the court shall award such other equitable relief, including an injunction, as it deems to be necessary and proper. The demand requirements of this paragraph shall not apply if the claim is asserted by way of counterclaim or cross-claim, or if the prospective respondent does not maintain a place of business or does not keep assets within the commonwealth, but such respondent may otherwise employ the provisions of this section by making a written offer of relief and paying the rejected tender into court as soon as practicable after receiving notice of an action commenced under this section. ***”; and Gen.L. c.93A §9(4): “If the court finds in any action commenced hereunder that there has been a violation of section two, the petitioner shall, in addition to other relief provided for by this section and irrespective of the amount in controversy, be awarded reasonable attorney’s fees and costs incurred in connection with said action; provided, however, the court shall deny recovery of attorney’s fees and costs which are incurred after the rejection of a reasonable written offer of settlement made within thirty days of the mailing or delivery of the written demand for relief required by this section.”

 

 

3. Landlords’ appraiser

 

The tenants contend in their motion [Doc.#80] filed on May 16, 2008, that the testimony of the landlord’s appraiser should be excluded because the witness lacks qualifications as an appraiser and because the witness’ expected expert opinion will not be based on the applicable statutory factors. The motion must be denied as the tenants do not provide adequate support for their contentions. The tenants’ remedy, if there is one, is cross-examination by tenants’ counsel, not a premature or unfounded disqualification of the landlords’ expert by the court.

 

Of course, the witness will not be permitted to offer an opinion that is not based on the standards prescribed by Gen.L. c.140 §32L(7A): “[1] fair market value [2] based on the price which a willing and able buyer [3] intending to reside in the home [4] would pay for the home [5] and any existing appurtenances, [6] but excluding the value of the underlying land [7] and shall assume that the home is and will continue to be located on a lot which is leased in a duly licensed manufactured housing community, [8] with all hook-ups and existing appurtenances [9] in place for use and occupancy by the resident.”

 

 

 

It appears that neither party has sought the appointment of an independent appraiser as provided by Gen.L. c.140 §32L(7A) (“The appraised value of the manufactured home shall be *** determined by an independent appraiser agreed to by the community owner and the tenant. If the parties are unable to agree on an independent appraiser within thirty days, either may have recourse to the director of housing and community development or the director’s designee, who shall appoint such appraiser within thirty days. The parties shall share the cost of the appraisal equally.”) Even at this late date, it is open for the parties to do so.

 

The attention of the parties is directed to the statutory provision, Gen.L. c.140 §32L(7A): “The manufactured housing community owner shall pay to any tenant *** the appraised value of the tenant’s manufactured home. *** The appraised value of the manufactured home shall be the fair market value of the home and any existing appurtenances but excluding the value of the underlying land, determined by an independent appraiser agreed to by the community owner and the tenant. If the parties are unable to agree on an independent appraiser within thirty days, either may have recourse to the director of housing and community development or the director’s designee, who shall appoint such appraiser within thirty days. The parties shall share the cost of the appraisal equally. In making such determination, the appraiser shall assess fair market value based on the price which a willing and able buyer intending to reside in the home would pay for the home and any existing appurtenances, but excluding the value of the underlying land and shall assume that the home is and will continue to be located on a lot which is leased in a duly licensed manufactured housing community, with all hook-ups and existing appurtenances in place for use and occupancy by the resident. In addition, if the home is then actually located on a lot rented to the home owner by the same person or a predecessor or affiliate of such person or predecessor who sold the home in question within the past ten years to the home owner or a predecessor of such owner, then the appraisal also shall take into account the value to the tenant, if any, which is attributable to a below-market contract rental for the balance of the ten years from the date of sale at the rate at which the lot is leased before delivery of the relocation notice, as increased in accordance with the lease and after its expiration by an annual factor not to exceed the increase in the consumer price index set forth in this paragraph for the twelve-month period immediately preceding delivery of the relocation notice. Otherwise no value shall be attributed to actual existing below-market or above-market rental rates.”

 

 

ORDER

 

1. Parties and pleadings. The motion [Doc.#92, 93] filed on July 23, 2008, by the tenants to amend the intervenors’ complaint [Doc.#20] under MRCvP Rule 15 and to substitute the proper parties under Rule 25(a)(1) is allowed.

 

 

 

2. Chapter 93A demand letters. The Consumer Protection Law demand letters, dated October 14, 1999 (Kangas), October 21, 1999 (Parker), and October 22, 1999 (Attorney General), are each ruled sufficient under Gen.L. c.93A §9(3). The objections [Doc.#90] filed on July 16, 2008, by the landlords to admissibility of the demand letters on grounds of legal insufficiency are overruled.

 

3. Landlords’ appraiser. The motion [Doc.#80] filed on May 16, 2008, by the tenants to exclude the testimony of the landlord’s appraiser is denied.

 

4. Trial Exhibits. The attached exhibit list is deemed the complete exhibit list for trial. Except as to exhibits the need for which cannot reasonably be anticipated prior to trial, the parties shall be precluded from offering other exhibits at trial.

 

The landlords’ “Objections to Admissibility of Exhibits” [Doc.#90], as well as the previously made (or assumed to have been made) objections to Trial Exhibits nos. 22, 41, 90, have been considered. The thirty-one objections, shown by attached exhibit list, are overruled. There is “limited admissibility” as to twenty-one of the exhibits, shown by the attached exhibit list, and the parties will be entitled to limiting instructions at trial.

 

Counsel shall, within 14 days of this order, serve and file corrections, if any, to the attached exhibit list.

 

5. R.56(d) determinations. Facts that exist without substantial controversy and issues of material fact that are actually and in good faith controverted are established and specified for the trial of this action by the attached document entitled “Facts Established and Issues Specified under R.56(d).”

 

Counsel shall, within 14 days of this order, serve and file corrections and objections, if any, to the attached “Facts Established and Issues Specified under R.56(d)” document. Counsel shall also serve and file within such time a proposed concise description of the case to be read to the jury at the time of impanelment.

 

6. Jury Instructions. Counsel shall, within 30 days of this order, serve and file proposed jury instructions, including substantive law element charges for each claim and defense, with citations to pertinent authorities. Pin-point page citations, and cross-citations to the official and Northeast reporter systems, are required in this court.

 

7. Pretrial Conference. The case will be called for final pretrial conference at the Lawrence session of this court at 9:00 o’clock a.m. on Friday, October 31, 2008. All parties and their trial counsel shall attend the pretrial conference.

 

 

 

All pretrial motions shall be served and filed at least 10 days before the pretrial conference. The court intends to hear and determine all pretrial motions at the pretrial conference.

 

All objections to deposition testimony shall be served and filed at least 10 days before the pretrial conference. The court intends to hear and determine all such objections at the pretrial conference.

 

Any deposition testimony that will be offered at trial in lieu of live testimony (for substantive purposes, other than for impeachment) shall be served and filed at least 10 days before the pretrial conference.

 

8. Trial. The case will be called for a one-week trial before a jury of twelve, at the Lawrence session of this court at 9:00 o’clock a.m. on Monday, November 3, 2008.

 

The court anticipates that the case will be tried Mondays through Fridays, 9:00 o’clock a.m. through 4:00 o’clock p.m, except that on Tuesdays and Fridays testimony will not be taken after 1:00 o’clock p.m.

 

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

FEDERAL NATIONAL MORTGAGE ASSN v. ROBIN MCDUFFIE

 

 

 

 

Docket # No. 08-SP-02674, No. 08-CV-00158

 

Parties: FEDERAL NATIONAL MORTGAGE ASSN v. ROBIN MCDUFFIE

 

Judge: /s/David D. Kerman

Associate Justice

 

Date: September 9, 2008

 

ORDER

 

As there exists a substantial question of subject matter jurisdiction over portions of the answer in case no. 08-SP-02674 and over the claims in related case no. 08-CV-00158 which seek to retain possession of residential premises and recover damages for wrongful foreclosure, this case is referred to the Chief Justice of the Housing Court and to the Chief Administrative Justice of the Trial Court, for interdepartmental assignment or transfer under Gen.L. c.211B §9 and the doctrine of Konstantopolous v. Whateley, 384 Mass. 123, 424 N.E.2d 210 (1981), or for other disposition in accordance with law.

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

CITY OF LAWRENCE ISD v. ANA M. MARTINEZ et al

 

 

 

Docket # No. 07-CR-00045, No. 07-CR-00085, No. 07-CR-00122, No. 07-CR-00195, No. 07-CR-00197

 

Parties: CITY OF LAWRENCE ISD v. ANA M. MARTINEZ et al

 

Judge: /s/David D. Kerman

Associate Justice

 

Date: September 22, 2008

 

RULINGS AND ORDER

 

These are five criminal cases brought by the City of Lawrence Inspectional Services Department against the owner of a two-family dwelling and four adjoining condominium unit owners to compel the repair of a retaining wall to comply with the State Building Code.

 

The wall is part of a series of co-linear retaining walls separating several properties along Greenwood Street, between Bodwell and Essex Streets. The wall is constructed of eight inch concrete blocks. It has multiple steel pipe weep holes, but it is not reinforced. Along the base of the wall, near or on the condominium property, there is another wall, made of poured concrete, three to four feet high. The wall in question has substantial cracks, some up to two inches wide. The wall is approximately nine feet tall at its highest point, and the top of the wall is more than three inches out of plumb, leaning downhill away from the two-family dwelling towards the four dwelling unit condominium property.

 

After considerable negotiation in the ten months following the commencement of this litigation on March 21, 2007, the parties resolved the matter by stipulation dated January 24, 2008, whereby they agreed (1) to engage a construction company to remediate and stabilize the retaining wall common to their properties as soon as weather permits; (2) to share the cost of work in five equal parts; and (3) to use their best efforts to have the funds available by the court review date of April 24, 2008. To date, the stipulation has not been performed.

 

Now, some six months after the stipulation, by their motion to dismiss which they filed on July 16, 2008, the condominium owners say: (1) that the wall, which was built in 1986, is not located on condominium property, (2) that the wall is not a “party wall” because it is not common to two adjoining structures, (3) that the wall does not provide “vertical support” to the condominium property, and (4) that the wall does not provide any structural or aesthetic benefit to the condominium owners.

 

 

 

 

Also, by their motion to vacate the stipulation which they filed on September 2, 2008, the condominium owners say that, at the time of the stipulation: (1) they did not have the advice of counsel, (2) they had no knowledge of the relevant laws and how those laws applied to their case, and (3) they were under the impression that if they did not sign the stipulation they would lose their homes or go to prison.

 

In their opposition filed on September 10, 2008, counsel for the City of Lawrence and counsel for the owner of the adjoining two-family dwelling correctly point out that in the many months and many hearings of this matter since the case was begun on March 21, 2007: (1) the court, the court’s housing specialist, and opposing counsel all encouraged the condominium owners to obtain legal advice and representation, (2) neither the court nor court staff nor opposing counsel ever stated or led the owners to believe that they might lose their homes or go to prison if they did not sign the stipulation, (3) the owners never at any time expressed any concern that they might lose their homes or go to prison if they did not sign the stipulation, and (4) all parties voluntarily signed and entered into the stipulation on January 24, 2008, as a binding agreement and order of the court.

 

I reject outright the condominium owners’ contentions that they should be relieved of their stipulation because they lacked counsel, lacked legal knowledge, or entered into the stipulation under conditions of fear, undue influence, or duress. There is no specific and no credible evidentiary support for the allegation that the owners were put in fear of incarceration or of loss of their homes. At one or more of the many hearings held during the ten months preceding the stipulation, one or more of the owners stated that they had in fact consulted with counsel. Immediately above the parties’ signatures on the stipulation there appears the pre-printed upper-case bold-faced statement “I UNDERSTAND THAT I HAVE THE RIGHT TO A HEARING ON MY CASE BEFORE A JUDGE, BUT INSTEAD I CHOOSE TO SIGN THIS AGREEMENT.” The procedures and circumstances surrounding the negotiation and acceptance of the stipulation, are known to me personally, and were in all respects fair and voluntary. Accordingly, I approved the stipulation as an order of the court.

 

I am also not convinced that the stipulation is substantively unfair or unconscionable as to the condominium owners.

 

The owners do not show that the wall is not located on condominium property. The surveyor Frank S. Giles says in his report dated October 13, 2006, that the base of the wall is constructed on the property line. If so, the wall may qualify as a “party wall” that is common to the adjoining properties. See, Chicago Title Ins. Co. v. City of Cambridge, 24 Mass.App. 285, 287-288, fn.6, 509 N.E.2d 8, 10, fn.6 (1987). Compare, Pave v. Mills, 1999 WL 791952, *3-*4 (Super.Ct., Giles, J., 1999).

 

 

 

The condominium owners surmise (but have no evidence) that a predecessor of the two-family dwelling owner (who bought her property in 2001) may have back-filled the lot with additional soil and built the wall to provide lateral support. The surveyor says, and the parties agree, that there is no mention of the wall in any of the deeds, or in the condominium documents or subdivision plan. The City says, and the parties agree, that the wall was constructed without benefit of the required municipal building permits. The parties seem to agree that the two-family dwelling structures pre-existed the four-dwelling-unit condominium structures. The surveyor says that the wall was built sometime after the condominium was constructed in 1986, and the condominium owners similarly say that the wall was built in 1986. If so, it seems at least as likely as not that the condominium developer built the wall to shore up the soil when excavation was made for the condominium buildings in order to provide lateral support.

 

It may be true that the wall does not provide any aesthetic benefit to the condominium owners (the wall in its present condition cannot provide aesthetic benefit to anyone). But it cannot be said that the wall (in a safe repaired condition) is of no structural benefit to the condominium owners. It is fundamental that each owner of land which is fixed in its place has the right to have that land remain in its natural condition unaffected by excavation or improvement on adjoining land. See and compare, Gorton v. Schofield, 311 Mass. 352, 356-358, 41 N.E.2d 12, 14-15 (1942) (owner of land at higher elevation entitled to downhill neighbor’s lateral support); Rubin v. Walpate Const. Mgmt., Inc., 1999 WL 706710 (Super.Ct., Sosman, J., 1999) (owner of land at lower elevation entitled to uphill neighbor’s lateral support). The wall is of mutual structural benefit to all adjoining landowners, to prevent land from the uphill two-family dwelling property from collapsing onto the downhill condominium property.

 

At the hearing of this matter on September 11, 2008, the parties agreed that the cost of repairs to the wall approximates $12,500. As to the City, each party who is liable is liable to the whole, on a joint and several basis, for the full cost of repairs. And if the appointment of a receiver is necessary to effectuate repairs, each party would be liable for the additional costs of a receivership as well. By their stipulation on January 24, 2008, the owners agreed to share the $12,500 repair cost in five equal parts of $2,500. This was then, and is still now, a fair, just and equitable settlement, considering the mutual benefits to all parties of the needed repairs, and considering the meager and sometimes inconsistent evidence, and the uncertainties and costs of further litigation and trial.

 

ORDER

 

The motion to dismiss filed on July 16, 2008, and the motion to vacate the stipulation filed on September 2, 2008, by the condominium owners are denied.

 

 

 

The cross-motion filed on September 10, 2008, by the City and by the two-family dwelling owner to enforce the stipulation is allowed.

The motion filed April 19, 2007, to treat the cases as civil cases instead of criminal cases is allowed.

 

The parties shall, within 10 days of this order, serve and file copies of a binding contract to repair or replace the wall with work to be completed within 30 days, or else shall provide proof of escrow or deposit with the City or the Clerk of Court the $12,500 estimated cost of repairs.

 

As previously ordered, the matters will be further heard at the Lawrence session of this Court on October 9, 2008.

 

 

 

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

ANDOVER HOUSING AUTHORITY v. ROBIN COTLER

 

 

 

Docket # No. 07-SP-03671

 

Parties: ANDOVER HOUSING AUTHORITY v. ROBIN COTLER

 

Judge: /s/David D. Kerman

Associate Justice

 

Date: September 22, 2008

 

MEMORANDUM AND ORDER

 

After evidentiary hearings on September 11, 2008, and September 19, 2008, I credit the testimony of the Andover Housing Authority’s five public housing tenant witnesses and I also credit the testimony of the defendant-tenant Robin Cotler. The testimony, which is not in serious dispute, shows that the behavior of Robin Cotler, who began her public housing occupancy in 1999, sharply deteriorated some two to three years ago when she began screaming and swearing inside her apartment, for fifteen to twenty minutes at a time, two to three times a day, three to four times a week; that this behavior greatly disturbs her neighbors; and that, as characterized by the defendant, this behavior is “outrageous” and if continued she should be “kicked out.”

 

I further find that the Housing Authority (and the defendant’s neighbors) have used their best efforts to accommodate the defendant’s disabilities. However, on all the evidence, I also find that the defendant, who is now undergoing cancer treatments at Dana-Farber and Brigham and Women’s hospitals in Boston, and who is beginning counseling with her psychologist Pamela Devaney, is entitled to a further accommodation such that the summary process judgment which entered by default on August 29, 2008, should be vacated, with the right of either party, consistent with the practice in summary process cases, to bring the case forward on three days’ actual written notice to the other. See and contrast, Andover Housing Authority v. Shkolnik, N.E.Hsg.Ct. No. 03-SP-00524 (August 7, 2003), aff’d 443 Mass. 300, 820 N.E.2d 815 (2005) (where the tenants’ repeated denials of the nature of the disability and of disability-related behavior prevented the landlord’s efforts to provide a reasonable accommodation); Neptune Towers v. Genkin, N.E.Hsg.Ct. No. 07-SP-01681 (May 15, 2008) (same).

 

 

 

If the matter is brought forward by the Housing Authority, on motion for entry of judgment and issuance of execution, the parties will be entitled to a full evidentiary hearing except that the evidence already taken will be considered as trial testimony without the need to offer repetitious or cumulative evidence from witnesses who have already testified.

 

The Clerk shall send a copy of this order to the defendant’s standby counsel, Pascale Desir, Esq. at Neighborhood Legal Services, Inc.

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

WASHINGTON MUTUAL BANK v. CLAUDIA INOA

 

 

 

 

Docket # No. 08-SP-00937

 

Parties: WASHINGTON MUTUAL BANK v. CLAUDIA INOA

 

Judge: /s/David D. Kerman

Associate Justice

 

Date: September 22, 2008

 

MEMORANDUM AND ORDER

 

The plaintiff in this post-foreclosure summary process action is the Washington Mutual Bank, formerly known as the Washington Mutual Bank, FA, which acquired title of the subject two family dwelling premises by way of an assignment through a power of sale contained in a mortgage. The bank and the occupants disposed of the action by an agreement for judgment entered with the court on April 8, 2008, which required the occupants to vacate the premises by May 25, 2008.

 

Thereafter, the parties entered into negotiations for the occupants Larry and Claudia Inoa, husband and wife, and their friend Jose Espinosa Garcia to buy the premises. First by agreement of the parties, then by court order on motion of the occupants, the issuance and then the use of execution were stayed pending the parties’ negotiations.

 

The occupants and prospective purchasers obtained approval of a $250,000 real estate loan with a 6.50% fixed interest rate and 30 year term from Bank of America on July 7, 2008. With assistance provided by Attorney Lisa J. McGloin of Lynn, and V.Laws of the All Star Real Estate agency, the occupants submitted an offer to purchase the property for $190,000, first on July 16, 2008, addressed to Sara Packard, again on August 27, 2008, addressed to Joe Petrocelli, and still again on September 9, 2008, addressed to Joe Petrocelli, both of the Northeast Property Solutions agency, which represents the Washington Mutual Bank with respect to disposition of the property. At Petrocelli’s request, the occupants also submitted written appraisal reports for the property.

 

Nearly two months passed with no response from Northeast Property Solutions to the occupants’ offer and submission. Then, Audra NgPack of Nationwide REO Brokers, Inc., sent the occupants a

letter dated September 9, 2008, which states only:

 

 

 

“The offer to purchase the subject property made by Jose Espinosa Garcia in the amount of $190,000 was presented to the Asset Manager by the broker however the property is not listed or available for sale at this time.”

 

At the hearing of this matter on September 16, 2008, Attorney McGloin stated that she was only recently told that the bank would not consider the occupants’ offer without first obtaining its own appraisal (this despite the fact that the bank’s representative had earlier asked the occupants to obtain and submit appraisals). At the hearing, counsel for the bank stated that it is the bank’s practice to not obtain appraisals and to not consider offers to purchase until a foreclosed upon property is vacant. The bank’s counsel does not articulate (and I am unable to imagine) any logical reason for the bank’s practice and its position in this case.

 

The bank, which is now holding an execution issued by the court on September 2, 2008, asks that it be allowed to levy. The occupants move that the execution be further stayed and that the bank be required to consider their offer without requiring that the occupants first vacate the premises. Mindful of the parties’ course of dealing and of the representations made by the bank’s representatives, and mindful also that unfair and unreasonable practices in debt collection proceedings (which include summary process actions) are prohibited by law [1] I deny the bank’s request for permission to levy, and I allow the occupants’ motion to stay the execution.

 

Levy on execution is prohibited pending further order of the court. Consistent with the practice in summary process cases, either party may have a further hearing in this matter on three days’ actual written notice to the other party.

 

 

 

 

 

 

 

 

 

__________________

 

[1] See, the federal Fair Debt Collection Practices Act [FDCPA], 15 U.S.C. §1692 et seq.; Heintz v. Jenkins, 514 U.S. 291 (1995); Romea v. Heiberger & Associates, 163 F.3d 111 (2nd Cir. 1998); Pettway v. Harmon Law Offices, P.C., 2005 WL 2365331 (D.Mass. 2005); and the Massachusetts Debt Collection Act, Gen.L. c.93 §49; McGrath v. Mishara, 386 Mass. 74, 434 N.E.2d 1215 (1982).

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

107 CORPORATION v LINDA JANVRIN

 

 

 

Docket # 08-CV-00184

Parties: 107 CORPORATION v LINDA JANVRIN

Judge: /s/David D. Kerman

Associate Justice

Date: October 2, 2008

ORDER

 

As there exists a substantial question of subject matter jurisdiction over portions of the complaint and counterclaim which seek recovery of damages under Gen.L. c.21E, c.140 s.32A et seq., c.186 s.14, and c.93A, and under the common law, for cleanup costs and other losses resulting from spillage of home heating or cooking oil at a mobile home park, this case is referred to the Chief Justice of the Housing Court and to the Chief Administrative Justice of the Trial Court, for interdepartmental assignment or transfer under Gen.L. c.211B s.9 and the doctrine of Konstantopolous v. Whateley, 384 Mass. 123, 424 N.E.2d 210 (1981), or for other disposition in accordance with law.

 

 

 

 

 

End Of Decision

HOUSING COURT

HTG REALTY v. MARIA FABAL

 

 

Docket # 08-SP-02917

Parties: HTG REALTY v. MARIA FABAL

Judge: /s/David D. Kerman

Associate Justice

Date: October 30, 2008

ORDER

 

After hearing, I find, rule and order that the Section 8 total monthly rent amount is $1,350; that the unpaid balance due the landlord through November 30, 2008, totals $2,680; that the Gloucester Housing Authority’s unpaid share totals $2,191; and that the tenant’s unpaid share totals $489, all as shown by the attached spreadsheet. Under federal law, the Housing Authority and not the tenant is liable for its shares of the Section 8 rents until the tenant vacates. See, HUD Regulation 24 C.F.R. s.982.311(b) (“if the owner has commenced the process to evict the tenant, and if the family continues to reside in the unit, the PHA must continue to make housing assistance payments to the owner in accordance with the HAP contract until the owner has obtained a court judgment or other process allowing the owner to evict the tenant. The HA may continue such payments until the family moves from or is evicted from the unit.”); 24 C.F.R. s.982.311(d) (“The owner may keep the housing assistance payment for the month when the family moves out of the unit.”); Curtis v. Surrette, 49 Mass.App. 99, 726 N.E.2d 967 (2000).

An amended judgment shall enter for $489 unpaid rental debt through November 30, 2008, with $205 statutory costs. The Clerk shall issue execution at the plaintiff’s written request filed after November 10, 2008, if the defendant’s proof of payment of $694 is not then on file.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

NHPMN MANAGEMENT LLC v. OSARENWINDA OKONEDO

 

 

Docket # 08-SP-03124

Parties: NHPMN MANAGEMENT LLC v. OSARENWINDA OKONEDO

Judge: /s/David D. Kerman

Associate Justice

Date: October 30, 2008

DECISION AND ORDER

 

After trial, I find, rule and order that the plaintiff landlord is entitled to judgment for unpaid rents totaling $5,448 through October 31, 2008 (consisting of twelve months unpaid amounts of $454 per month, after rents were increased from $598 to $1,052 per month effective November 1, 2007, as approved by the Massachusetts Housing Finance Agency), and to judgment for possession of the subject Loring Towers apartment premises, with statutory costs.

Although the tenant sought subsidized rental assistance from the Section 8 Housing Choice Voucher Program administered by the Salem Housing Authority, the Housing Authority’s Federal Programs Administrator determined by notices dated September 21, 2007, and December 17, 2007, that the tenant was not eligible for the subsidy. Thereafter, at the tenant’s request an agency hearing was held on January 28, 2008; by decision dated February 13, 2008, the Housing Authority’s hearing officer upheld the denial of subsidy assistance.

The tenant did not seek judicial review of the agency decisions, but now attempts to collaterally attack those decisions in this court, contending that a former employee of the landlord management company gave information that was adverse to him to the Housing Authority’s Federal Programs Administrator which wrongly influenced her decisions.

Assuming without deciding that this occurred, however, there is no suggestion, and certainly no adequate evidentiary showing, that anyone on behalf of the plaintiff management company improperly influenced the decision of the Housing Authority’s hearing officer. See, and contrast Homesavers Council of Greenfield Gardens, Inc. v. Sanchez, 70 Mass.App. 453, 874 N.E.2d 497 (2007), where the landlord, without notice to the tenant, terminated the tenant’s Section 8 subsidy, and transferred that subsidy to another apartment.

Enter judgment for the plaintiff for possession of the premises and for $5,448 rental debt with statutory costs.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

GMAC MORTGAGE LLC v. PHYLLIS ROBERTS

 

 

Docket # 08-SP-02154

Parties: GMAC MORTGAGE LLC v. PHYLLIS ROBERTS

Judge: /s/David D. Kerman

Associate Justice

Date: November 3, 2008

ORDER

 

The plaintiff in this post-foreclosure summary process action is GMAC Mortgage LLC which brought suit against the former mortgagors Phyllis Roberts and Frank Roberts and against “all other occupants”[1] by service of a Summary Process Summons and Complaint left “at last and usual abode” on June 16, 2008. GMAC supported its suit with a “72 hour notice to quit and vacate premises” addressed to the mortgagors and to “all other occupants”[2] left “at last and usual abode” on June 6, 2008.

At the time of suit the mortgagors were not in possession of the single family home which is the subject of this action. Living there instead, since September 20, 2007, under a lease agreement terminable

by either party on thirty days’ written notice, were the mortgagors’ daughter and her husband Cynthia and Edward Wisniewski and their five children. The Wisniewskis stated these facts in their Summary Process Answer which they filed on June 30, 2008.[3]

The parties filed a Summary Process Agreement for Judgment with the court on July 9, 2008. By the agreement, Edward and Cynthia Wisniewski intervened as co-defendants, waiving all necessary service and process, and the case against Phyllis and Frank Roberts was dismissed; it was acknowledged that there was no landlord tenant relationship between the parties and that the occupants would continue to pay their utilities; GMAC was given possession and the execution was stayed until September 10, 2008.

Shortly thereafter, the Wisniewskis (Cynthia Wisniewski is a real estate agent) and representatives of GMAC entered into negotiations for the purchase and sale of the property. The negotiations were for a “short sale” as the Roberts mortgage amount was $313,000 and the Wisniewskis would offer $260,000.

On July 30, 2008, the occupants spoke by telephone with a person in GMAC’s “REO” office in Texas who identified himself as “Peter” who said that he would accept and deliver to the appropriate decision makers at GMAC a fax transmission of the occupants’ offer to purchase the property; the occupants faxed their offer the same day. A month later on August 25, 2008, the occupants telephoned the GMAC REO office and spoke with a person who identified himself as “Jamal” who said that the offer had been received and was under consideration. A month later on September 21, 2008, the occupants telephoned the GMAC REO office and spoke with a person who identified herself as “Courtney” who said that someone named Ken Olson who worked for GMAC’s real estate broker New England Goods and Services in Massachusetts was handling the offer. The occupants spoke with Ken Olson the same day. On or about October 5, 2008, the occupants spoke with someone named Stephanie Turner at New England Goods and Services who said that their offer was under consideration and that GMAC would arrange for an appraisal. A few days later someone who identified herself as “Diane” appeared at the property and said that she was performing an appraisal for GMAC. On October 29, 2008, the occupants spoke with someone named Mike Abbott at New England Goods and Services who confirmed that GMAC was performing an appraisal and that GMAC would consider the occupants’ offer.

Meanwhile, the parties stipulated that execution would be further stayed until October 24, 2008. Now before the court is the motion by the occupants to further stay the execution pending consideration by GMAC of their offer to purchase the property. Counsel for GMAC opposes the motion and argues that GMAC is under no legal obligation to consider the occupants’ offer and that any further delay would be inequitable.

I disagree. In view of the procedural history of this case, and in view of the representations made by GMAC’s representatives, a further stay to allow GMAC time to consider the occupants’ offer is not inequitable. It is fair and reasonable.

It should be remembered that unfair and unreasonable practices in debt collection proceedings (which include foreclosure and summary process actions) are unlawful. See, Washington Mutual Bank v. Inoa, N.E. Hsg.Ct. No. 08-SP-00937 (September 22, 2008), and authorities cited: federal Fair Debt Collection Practices Act [FDCPA], 15 U.S.C.

s.1692 et seq.; Heintz v. Jenkins, 514 U.S. 291 (1995); Romea v. Heiberger & Associates, 163 F.3d 111 (2nd Cir. 1998); Pettway v. Harmon Law Offices, P.C., 2005 WL 2365331 (D.Mass. 2005); Massachusetts Debt Collection Act, Gen.L. c.93 s.49; McGrath v. Mishara, 386 Mass. 74, 434 N.E.2d 1215 (1982).

The motion by the occupants to further stay the execution is allowed. Levy on execution is prohibited pending further order of the court. Consistent with the practice in summary process cases, either party may have a further hearing in this matter on three days’ actual written notice to the other party.

 

 

 

__________________

 

[1] Suit against “all other occupants” and the use of fictitious names is disfavored. See, Bank of New York v. Vac, N.E. Hsg.Ct. No. 08-SP-00453 (March 3, 2008), and authorities cited.

 

[2] A pre-suit notice addressed to “all other occupants” is appropriate. Id. However, under Gen.L. c.186 s.12-s.13A, as amended by St.2007 Ch.206 Sec.8 and 9, effective November 29, 2007, a pre-suit “72 hour” notice is not adequate notice to “occupants” who are tenants.

 

[3] I note that under Gen.L. c.244 s.18, a tenant has a right to redeem a mortgage made by his lessor. There is no indication that the Wisniewskis exercised their right to do so.

 

 

 

End Of Decision

 

 

HOUSING COURT

DOLBEN COMPANY v. JACQUELINE FRESA

 

 

Docket # 08-SP-03738

Parties: DOLBEN COMPANY v. JACQUELINE FRESA

Judge: /s/David D. Kerman

Associate Justice

Date: November 4, 2008

RULING AND ORDER

 

The defendant tenant in this summary process action was involved in a physical altercation with a neighbor at her apartment building on September 22, 2008. She pleaded guilty to a charge of assault and battery and is now serving a ninety day sentence of incarceration imposed by the Haverhill District Court.

The landlord, who seeks judgment for possession of the premises, contends that by her conduct on September 22, 2008, the tenant breached the “16. community policies or rules,” the “17. limitations on conduct,” and the “18. prohibited conduct” provisions of the dwelling lease. The tenant answers that she was not at fault in the incident of September 22, 2008, and that her neighbor instead was the wrongdoer in the altercation.

The defendant’s guilty plea is admissible in evidence against her, but a conviction upon a plea without trial does not conclusively determine the issue. See, Aetna Cas. & Sur. Co. v. Niziolek, 395 Mass. 737, 481 N.E.2d 1356 (1985) (insured’s criminal conviction for burning his property in order to collect insurance proceeds collaterally estopped him from relitigating issues decided in the criminal trial and entitled the insurer to judgment, but conviction

of second defendant for arson and conspiracy to commit arson, entered upon a guilty plea, did not collaterally estop that defendant from litigating issues involved in the criminal proceeding, although the conviction was admissible as evidence).

The Clerk shall schedule the case and arrange for the defendant’s attendance at trial.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

SCOTT O. STANSFIELD v. DAVID ERNESTO PORTILLO

 

 

Docket # 08-SP-03608

Parties: SCOTT O. STANSFIELD v. DAVID ERNESTO PORTILLO

Judge: /s/David D. Kerman

Associate Justice

Date: November 4, 2008

DECISION AND ORDER

 

The dwelling premises in this summary process action have long suffered serious and substantial housing defects, which include rodent infestation, rotted floor, and severe plumbing leaks, all as shown by the health department report dated July 16, 2008, the video recording taken by the tenant, and the oral testimony received at trial.

The tenant, an upstairs neighbor, and the landlord all agree that upstairs bathtub leaks were fixed some months ago by fiberglass repair. But the uncontroverted evidence shows that leaks and flooding still persist.

The tenancy in this case began on December 15, 2004, and rents were fully paid through June 30, 2008. However, the tenant withholds all rents since July 1, 2008. The tenant’s wife and children moved from the apartment more than a month ago, and the tenant himself plans to leave by November 25, 2008.

At issue is the tenant’s lack of formal written notice of termination of the tenancy and the five months’ withheld rent.

On all the evidence, I find, rule and order that the tenant is constructively evicted, such that he may quit the premises without formal written notice by November 25, 2008, and without paying any further rent.

Enter judgment dismissing the complaint.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

NANCY THERIAULT v. MIDDLESEX GARDENS CORPORATION

 

 

Docket # 08-CV-00218

Parties: NANCY THERIAULT v. MIDDLESEX GARDENS CORPORATION

Judge: /s/David D. Kerman

Associate Justice

Date: November 24, 2008

ORDER

 

As there exists a substantial question of subject matter jurisdiction over the complaint which seeks to recover for personal injuries sustained by the tenant’s business invitee under theories of negligence and breach of warranty of habitability in violation of the State Sanitary and Building Codes, this case is referred to the Chief Justices of the Trial Court and the Housing Court for interdepartmental assignment or transfer under Gen.L. c.211B s.9 and the doctrine of Konstantopolous v. Whateley, 384 Mass. 123, 424 N.E.2d 210 (1981) and Nixon v. Levinson, 20 Mass.App. 904, 477 N.E.2d 1046 (1985) (rescript), or other disposition in accordance with law.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

DEANNA DEMPSEY v. THOMAS KINSELLA

 

 

Docket # 05-CV-00006

Parties: DEANNA DEMPSEY v. THOMAS KINSELLA

Judge: /s/David D. Kerman

Associate Justice

Date: December 26, 2008

ORDER

 

As there exists a substantial question of subject matter jurisdiction over the amended complaint which seeks to recover for childhood lead paint poisoning personal injuries and also for fraudulent conveyance, Ryan v. Kehoe, 408 Mass. 636, 562 N.E.2d 831 (1990), this case is referred to the Chief Justices of the Trial Court and the Housing Court for interdepartmental assignment or transfer under Gen.L. c.211B s.9 and the doctrine of Konstantopolous v. Whateley, 384 Mass. 123, 424 N.E.2d 210 (1981) and Nixon v. Levinson, 20 Mass.App. 904, 477 N.E.2d 1046 (1985) (rescript), or other disposition in accordance with law.

 

 

 

End Of Decision

 

HOUSING COURT

LAUREN CREAMER, Plaintiff v. SUSAN ALBIERO GADBOIS, Defendant

 

NORTHEAST HOUSING COURT

 

 

Docket # No. 08-SC-00153

 

Parties: LAUREN CREAMER, Plaintiff v. SUSAN ALBIERO GADBOIS, Defendant

 

Judge: /s/David D. Kerman

Associate Justice

 

Date: January 9, 2009

 

DECISION AND ORDER

 

The plaintiff former tenant filed this small claim action for treble damages, court costs, and attorney’s fees under the Security Deposit Law, Gen.L. c.186 §15B. The landlord answered that the tenant had “engineered” her failure to open a proper security deposit bank account before and during the tenancy by withholding her social security number, and that she had returned $400 portion of the $725 security deposit following the end of the tenancy. The landlord also counterclaimed for unpaid rent and for waste damages to the premises.

 

Thereafter, the case was transferred from the Salem District Court to the Housing Court pursuant to Gen.L. c.185C §20 and then was transferred to the regular civil docket pursuant to Gen.L. c.218 §24.

 

I credit the landlord’s testimony, which is uncontroverted, that the tenant refused to disclose her social security number, and that her bank refused to open a security deposit bank account without it. In these circumstances, the landlord did not mishandle the security deposit, and she is not liable for failing to return it in response to the tenant’s demand letters dated May 6, 2008, and May 22, 2008.

 

The tenant moved out on July 5, 2008, without delivering the keys. The landlord regained possession on July 11, 2008. She is entitled to ten days’ unpaid rent in the amount of $476.39.

 

The landlord returned $400 portion of the security deposit on July 31, 2008. The tenant is entitled to $21.14 for the statutory five-percent interest accrued during the seven month period from December 31, 2007, when the deposit was paid until July 31, 2008, when $400 portion of the deposit was returned.

 

The credible evidence does not show actionable waste. On the contrary, the tenant’s photographs show that she thoroughly emptied and cleaned the apartment before leaving. Although the landlord complained in her email dated January 28, 2008, about “pretty bad” floor scratches, there are no photographs or other documentary evidence, and there is nothing in the pleadings, supporting the landlord’s claim of “deep gouges” which she first mentioned at trial.

 

The credible evidence does not show unlawful retaliation under Gen.L. c.186 §18, which claim I determine without benefit of formal

written pleadings pursuant to MRCvP Rule 15(b). On the contrary, the landlord’s email notice to quit sent May 22, 2008, and her “formal” notice to quit dated May 23, 2008, followed antagonistic relations which arose between the parties from the very beginning of the tenancy, and with a neighboring tenant as evidenced by the neighbor’s email complaint to the landlord dated April 2, 2008. Also, the parties’ email correspondence dated May 20, 2008, and May 21, 2008, shows that the landlord reasonably feared that the tenant was planning to move out without notice and without paying rent,

 

The net balance due the defendant landlord totals $130.25. Enter judgment accordingly.

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

VANITA ELLERBEE, Plaintiff v. NORTH ANDOVER HOUSING AUTHORITY, Defendant

 

NORTHEAST

 

 

Docket # No. 09-CV-00026

 

Parties: VANITA ELLERBEE, Plaintiff v. NORTH ANDOVER HOUSING AUTHORITY, Defendant

 

Judge: /s/David D. Kerman

Associate Justice

 

Date: March 19, 2009

 

ORDER

 

As there exists a substantial question of geographic and therefore of subject matter jurisdiction over the complaint, which seeks declaratory and injunctive relief for wrongful termination of residential rental assistance under the HUD Section 8 [mobile] Housing Choice Voucher Program, for dwelling premises located in Randolph in Norfolk County, but administered by the North Andover Housing Authority in Essex County, this case is referred to the Chief Justices of the Trial Court and the Housing Court for interdepartmental assignment or transfer under Gen.L. c.211B §9 and the doctrine of Konstantopolous v. Whateley, 384 Mass. 123, 424 N.E.2d 210 (1981) and Nixon v. Levinson, 20 Mass.App. 904, 477 N.E.2d 1046 (1985) (rescript), or other disposition in accordance with law.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

CAROLYN WEBSTER, Plaintiff v. LAWRENCE HOUSING AUTHORITY, Defendant

 

NORTHEAST

 

 

Docket # No. 01-CV-00021

 

Parties: CAROLYN WEBSTER, Plaintiff v. LAWRENCE HOUSING AUTHORITY, Defendant

 

Judge: /s/David D. Kerman

Associate Justice

 

Date: March 31, 2009

 

DECISION AND ORDER

 

This is a tenant’s claim for money damages under the Fair Housing Act, 42 U.S.C. §3601 et seq., for handicap discrimination in the administration of her Section 8 housing-choice program certificate and voucher. The defendant is the Lawrence Housing Authority [LHA], which is the public housing agency [PHA] responsible for administering the tenant’s Section 8 certificate.

 

The case has a lengthy history. Details of the applicable handicap protection and Section 8 regulatory laws are set forth in my three prior decisions and orders. On November 6, 2002, I remanded the case to the LHA for issuance of a formal written decision as to the tenant’s claim that approval of an owner-occupied unit should be required as a reasonable accommodation. On January 28, 2005, I concluded that HUD’s “live-in aide” regulation superseded HUD’s “ineligible housing” regulation, and ordered that the LHA administer the tenant’s Section 8 certificate without regard to the usual prohibition against payments for an owner-occupied unit. On September 27, 2007, I determined that the summary judgment record did not show that the tenant was entitled to compensatory or punitive damages, but that she was entitled to $123.15 costs and $13,995.25 reasonable attorney’s fees in connection with her lawsuit. Now, after trial on the merits on March 20, 2009, I find and rule that the tenant is not entitled to recover damages and that she is not entitled to any further relief on her complaint.

 

1. Facts

 

The tenant Carolyn Webster became disabled in 1992 and has been assisted by her live-in aide Kenneth E. Arsenault since that time. [Exh.1, 2, 6]. The tenant moved to a two-bedroom dwelling in Groton in the summer of 1996, and her tenancy was subsidized under the Section 8 housing-choice program administered by the Acton Housing Authority.

 

On September 30, 1998, the tenant’s live-in aide bought a single family three-bedroom house in Lawrence. [Doc.9 Exh.F]. On November 2, 1998, the Acton Housing Authority issued to the tenant a portable tenant-based housing-choice Section 8 program certificate and voucher. [Exh.3]. On December 23, 1998, the tenant and her live-in aide submitted to the defendant Lawrence Housing Authority [LHA], in its capacity as the public housing agency [PHA] of the Section 8 rental assistance program, a request for Section 8 program lease approval of the premises. [Exh.6]. On January 1, 1999, without the LHA’s approval, and without a Section 8 program property inspection by the LHA, the tenant moved into the premises which were owned, occupied, and rented to her by the live-in aide.

 

After the tenant moved in, the LHA inspected the premises on January 11, 1999. [Exh.4]. However, the LHA had various concerns about the suitability of the property for Section 8 program assistance: The single family house seemed oversized with three bedrooms and two bathrooms. The tenant’s live-in aide not only lived there but also maintained his constable service business office on the first floor. [Exh.5]. There were significant mobility barriers, as the property had stairs, narrow doorways, a threshold, and no wheelchair ramps. [Exh.73]. The LHA’s chief concern was its belief that the lease could not be approved under HUD’s Section 8 program regulation, 24 C.F.R. §982.352(a)(6) (“Ineligible housing”), because

the premises were owner-occupied. [Exh.5, 12, 15, 17, 19, 20, 73].

 

The LHA was able to inspect the property on January 11, 1999. Thereafter, the tenant refused to allow the LHA access to the premises [Exh.73] because she considered the LHA’s requests for inspections to be “harassment.”

 

In an attempt to overcome the LHA’s concern that the premises were owner-occupied, the tenant’s live-in aide conveyed the premises to the Emerald Realty Trust on March 31, 1999. The principal of the Emerald Realty Trust was Randall J. Page, a business associate of the live-in aide, and the transaction was for nominal consideration. [Doc.9 Exh.J; Exh.13]. On June 9, 1999, the tenant withdrew her December 23, 1998, request and submitted a new request for lease approval. [Doc.9 Exh.M, N].

 

After repeated consultations with HUD officials [Exh.7, 8, 9, 19, 20], by letters dated December 6, 9, 1999, May 23, 2000, and October 30, 2000 [Exh.15, 17, 20], the LHA denied the new request for lease approval on grounds that the live-in aide’s ownership interest had not actually changed and that the Section 8 “Ineligible housing” regulation, 24 C.F.R. §982.352(a)(6), prohibited rental assistance payments for “A unit occupied by its owner or by a person with any interest in the unit.”

 

On February 5, 2001, the tenant filed her complaint in this court, asking that the decision of the LHA be vacated and that the LHA be ordered to approve housing assistance for the tenant at the subject premises. [Doc.1].

 

After denial of the LHA’s motion to dismiss, and after completion of discovery, the tenant filed motion for summary judgment on September 27, 2002. [Doc.9]. By order issued on November 6, 2002, I remanded the case to the LHA for issuance of a formal written decision as to the tenant’s claim that approval of an owner-occupied unit should be required as a reasonable accommodation. [Doc.12].

 

After more than a year’s delay, and several hearings on the court’s February 24, 2004, notice of intention to determine whether the case should be dismissed for lack of prosecution [Doc.13], the LHA held an informal hearing on May 18, 2004, and again denied relief by letter dated June 24, 2004. [Exh.73].

 

On September 17, 2004, the tenant renewed her motion for summary judgment. [Doc.15].

 

Meanwhile, on June 18, 2004, Randall J. Page and the Emerald Realty Trust conveyed the premises back to Kenneth E. Arsenault for nominal consideration. [Doc.22 Exh.E]. On September 10, 2004, Kenneth E. Arsenault sold the property for valuable consideration. [Doc.22 Exh.F].

 

On or about September 30, 2004, the tenant and her live-in aide vacated the subject premises, and moved to Marathon, Florida, where they live today. The tenant and her live-in aide were married on

November 7, 2004. The tenant testified at trial that since she moved from Massachusetts she has not received and has no need now for Section 8 rental assistance.

 

By decision and order issued on January 28, 2005, I ruled that HUD’s “Live-in aide” regulation, 24 C.F.R. §982.316, and other federal fair housing laws, superseded HUD’s “Ineligible housing” regulation, 24 C.F.R. §982.352(a)(6), and ordered that the LHA administer the tenant’s Section 8 certificate without regard to the usual prohibition against payments for “A unit occupied by its owner or by a person with any interest in the unit.” [Doc.19].

 

Thereafter, there was no activity on the docket of this case for more than two years.

 

On July 9, 2007, and September 10, 2007, the tenant renewed her motion for summary judgment. [Doc.20, 21, 24]. At this point, the tenant no longer sought declaratory and injunctive prospective relief; instead, she sought $40,490.80 compensatory damages, $50,000 punitive damages, costs, and reasonable attorney’s fees. By decision and order issued on September 27, 2007, I ruled that the summary judgment record did not show that the tenant was entitled to damages, but that she was entitled to $123.15 costs and $13,995.25 reasonable attorney’s fees. [Doc.25].

 

Almost a year later, the parties scheduled a pre-trial conference for August 21, 2008 [Doc.27], which they continued for December 18, 2008 [Doc.28], at which time trial was scheduled for March 20, 2009. [Doc.29, 30].

 

Since the time of the parties’ informal hearing on May 18, 2004, and the LHA’s denial of relief by its letter dated June 24, 2004 [Exh.73], there have been no direct communications between the parties.

 

At trial the tenant stated that she had been waiting for the LHA to finish processing her Section 8 application. The LHA contends that it considered the tenant’s application to be abandoned after she moved from Massachusetts to Florida on or about September 30, 2004.

 

 

2. Punitive damages

 

After trial, I adhere to the ruling in my September 27, 2007, decision and order on summary judgment that this is not an appropriate case for punitive damages. The evidence received at trial does not alter the state of the evidence at the summary judgment stage of the proceedings, that there is no showing of egregious or outrageous conduct, or evil motive or intent, or reckless or callous indifference to the protected rights of others. Rather, the evidence shows that the LHA repeatedly encouraged the tenant to do what it believed was necessary in order for her to use her Section 8 certificate. [Exh.12, 15, 17, 19, 20, 73].

 

I note in this regard that the administration of the Section 8 program is not an easy task. The Section 8 housing-choice program is

the most significant form of federal housing assistance, with approximately two million household vouchers issued nationwide. However, the program is not an entitlement benefit, and only twenty-five percent of eligible households receive assistance. There are long waiting lists and administering agencies in many communities, including the LHA [Exh.73], sometimes even stop accepting new applications. See, Center on Budget and Policy Priorities, Policy Basics: Introduction to the Housing Voucher Program (July 6, 2007), http://www.centeronbudget.org/cms/index.cfm?fa=view&id=279#_edn2.

 

 

3. Compensatory damages

 

The tenant claims compensatory damages in the sum of $40,490.80, which she calculates as 70% of the $57,844.00 rents that she paid from January 1, 1999, through September 30, 2004.

 

As I pointed out in my September 27, 2007, decision and order, this calculation is incorrect because a tenant’s share of Section 8 program rent is not calculated on the basis of 30% of rents paid, instead on the basis of 30% of the tenant’s monthly adjusted income. See, 42 U.S.C. §1437a(a)(1)(A) and 24 C.F.R. §5.628(a)(1) (“Determining total tenant payment (TTP)”).

 

The tenant says that the LHA rather than herself is responsible for calculating the correct amount of her damages because she timely furnished the LHA with information about her personal finances as would enable the LHA to calculate the appropriate level of Section 8 program rental assistance payments. See, 24 C.F.R. §982.516 (“Family income and composition: Regular and interim examinations”); 24 C.F.R. §982.551(b)(2),(4) (“Obligations of participant. Supplying required information”).

 

The tenant argues that because the LHA fails to furnish a correct calculation, she is entitled to recover damages according to her own concededly incorrect calculation at 70% of the rents paid.

 

I reject the argument because, in a lawsuit for money damages, it is the plaintiff, not the defendant, who seeks damages, and it is the plaintiff, not the defendant, who has the burden of proving her claim. The cited HUD regulations do not relieve the plaintiff of her burden of proving the correct amount of her damages, and where she fails to do so, by expert testimony or otherwise, Truong v. Wong, 55 Mass.App. 868, 872, 874-875, 775 N.E.2d 405, 409, 411 (2002), she leaves her case for damages up to “conjecture, surmise or hypothesis.” MacDonald v. Hawker, 11 Mass.App. 869, 876-878, 420 N.E.2d 923, 927-928 (1981). It is fundamental that “damages cannot be recovered when they are remote, speculative, hypothetical, and not within the realm of reasonable certainty”; that “damages may not be determined by speculation or guess”; and that “the plaintiff should not be made more than whole.” Connolly v. Suffolk County Sheriff’s Dept., 62 Mass.App. 187, 197-199, 815 N.E.2d 596, 605-606 (2004). Compare and contrast, Wiedmann v. The Bradford Group, Inc., 444 Mass. 698, 704-708, 831 N.E.2d 304, 309-312 (2005), where, after a spoliation sanction, the defendants, without documentary support, could not challenge the plaintiff’s calculations or assert that the

plaintiff was overpaid.

 

 

4. Premises inspection

 

After submitting her request for Section 8 program lease approval on December 23, 1998 [Exh.6], and after moving into the premises on January 1, 1999, without the LHA’s approval, the tenant allowed the LHA to inspect the proposed Section 8 assisted property on January 11, 1999. [Exh.4, 5]. Thereafter, she refused to allow the LHA to inspect the premises. [Exh.73].

 

PHAs are required to inspect all proposed Section 8 program assisted property prior to Section 8 lease approval. See, 24 C.F.R. §982.305(a)(2), §982.305(b)(1)(i), §982.305(b)(2)(i) (“PHA approval of assisted tenancy”); 24 C.F.R. §982.401 (“Housing quality standards (HQS)”); 24 C.F.R. §982.405 (“PHA initial and periodic unit inspection”).

 

The inspection must occur within 60 days of the beginning of the lease term and of the Housing Assistance Payments [HAP] contract with the owner. See, 24 C.F.R. §982.305(c)(1),(3) (“PHA approval of assisted tenancy. When HAP contract is executed”).

 

Thereafter, PHAs are required to re-inspect Section 8 program assisted properties on at least an annual basis. See, 24 C.F.R. §982.405(a) (“PHA initial and periodic unit inspection”).

 

Section 8 tenant families are required to allow the PHA to inspect the unit at reasonable times after reasonable notice. See, 24 C.F.R. §982.551(d) (“Obligations of participant. Allowing PHA inspection”).

 

Section 8 program inspections are important to ensure Housing Quality Standards, 24 C.F.R. §982.401 (“Housing quality standards (HQS)”), and also because: a PHA is required to determine “Rent Reasonableness (RR)” in accordance with 24 C.F.R. §982.305(a)(4) (“PHA approval of assisted tenancy”); 24 C.F.R.§982.507 (“Rent to owner: Reasonable rent”); 24 C.F.R. §982.507(b) (“Comparability”), considering the location, quality, size, unit type, and age of the contract unit, and any amenities to be provided by the owner in accordance with the lease; a PHA is required to determine the applicable “Subsidy Standard” and “Family Unit Size,” counting the live-in aide, in accordance with 24 C.F.R. §982.402(b)(6) (“Subsidy standards. Determining family unit size”); and a PHA is required to determine the applicable “Shared Housing” “Payment Standard,” with housing assistance not paid on behalf of the owner, 24 C.F.R. §982.615(b)(3) (“Shared housing: Occupancy”), and with pro-rata payment of the otherwise applicable payment standard amount for the size of the shared housing unit according to the ratio of the number of bedrooms available for occupancy by the tenant family divided by the total number of bedrooms in the unit, 24 C.F.R. §982.617 (“Shared housing: Rent and voucher housing assistance payment”).

 

In this case, the inspections were especially important because the LHA had expressed concerns from the outset about the suitability

of the property for Section 8 program assistance: The single family house seemed oversized with three bedrooms and two bathrooms. The tenant’s live-in aide not only lived there but also maintained his constable service business office on the first floor. [Exh.5]. And, there were significant mobility barriers, as the property had stairs, narrow doorways, a threshold, and no wheelchair ramps. [Exh.73].

 

The LHA could not, and could not reasonably be expected to complete the processing of the tenant’s request for Section 8 program lease approval without access to the proposed Section 8 program assisted property.

 

The tenant testified that she refused to allow the LHA access because she viewed the LHA’s requests for inspections to be “harassment.” Her attorney argued that the tenant’s denial of access should be overlooked because the LHA would not have approved the property for Section 8 program assistance anyway, and allowing re-inspections would have been “futile.”

 

I reject these arguments, and conclude that the tenant’s failure to allow inspections of the proposed Section 8 program assisted property was a material breach of her obligations as a Section 8 program participant, and that her failure justifies or excuses any failure of performance on the part of the LHA.

 

 

ORDER

 

After trial, I find, rule, and order that the plaintiff tenant is not entitled to recover compensatory or punitive damages, and that, except for the $123.15 court costs and $13,995.25 reasonable attorney’s fees determined in my September 27, 2007, decision and order, she is not entitled to any further relief on her complaint.

 

Counsel shall settle the form of order or judgment on 14 days notice.

 

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

HELEN HERMAN Plaintiff v. KEVIN SULLIVAN Defendant

 

 

 

 

NORTHEAST HOUSING COURT

 

 

Docket # No. 05-CV-00047

 

Parties: HELEN HERMAN Plaintiff v. KEVIN SULLIVAN Defendant

 

Judge: /s/David D. Kerman

Associate Justice

 

Date: April 16, 2009

 

FINDINGS, RULINGS AND ORDER

On their advisory verdict the jury found that the landlords’ use or employment of an unfair or deceptive act or practice was a willful or knowing violation (but they could not agree upon the amount of damages appropriate, up to three but not less than two times the amount of actual damages found). I agree with the jury’s determination that there was a willful or knowing violation by John Sullivan and by Kevin Sullivan, but not by Margaret Sullivan, for the following reasons.

John Sullivan has been engaged in the family real estate business on a full-time basis for 28 years since he graduated from high school. He manages 120 units of property, commercial and residential, including his own properties (10 properties containing 40 units), those owned by his parents Kevin Sullivan and Margaret Sullivan (9 or 10 properties containing 31 units), as well as properties owned by others. Kevin Sullivan also has been engaged in the family real estate business all of his professional life. Moreover he is an experienced, actively practicing member of the bar. Insofar as appears from the evidence, his wife Margaret Sullivan is only an inactive partner in the family real estate business.

Kevin Sullivan and Margaret Sullivan took title of the subject property from their now deceased son Paul Sullivan on January 30, 1990. Thereafter (the evidence does not show exactly when, but well before the plaintiffs Helen Herman and Christian Langlois took occupancy on or about July 15, 2003), the defendants caused the property to be renovated.

The renovations were extensive, and consisted of more than ordinary repairs. Included were installation of a new roof, change of use of the pre-existing carriage house to a dwelling unit, the cutting away of walls and partitions, and rearrangement of structures affecting egress, if not the removal or cutting of structural beams, columns, or other load bearing support. See, State Building Code, 780 C.M.R. s. 110.3.4 (Exemptions … Ordinary repairs).

 

 

 

The renovations were performed without benefit of building permits or certificate of occupancy, although both are required by the State Building Code, either for a change of use or occupancy, or for construction consisting of more than ordinary repairs, See, 780 C.M.R. s. 110.1. (Permit Application); s.120.0 (Certificate of Occupancy). As a result, the renovations were performed without the preliminary, interval, and final inspections by building officials that are required by the State Building Code. See, 780 C.M.R. s. 115.1. (Preliminary Inspection); s. 115.2. (Required Inspections); s. 115.5. (Final Inspection).

As a result, the premises became afflicted with serious and substantial housing defects, including leaking roof, ceilings, and windows, and painted-over and missing soffit vents, which, in turn and over time, caused water damage to the roof, fascia boards, ceilings, and walls, and caused chronic dampness and accumulated water, moisture, mold and fungi to exist throughout the house, in violation of the State Sanitary Code. See, 105 C.M.R. s. 410.020. (Definitions … Chronic Dampness); s. 410.351. (Owner’s Installation and Maintenance Responsibilities); s. 410.500. (Owner’s Responsibility to Maintain Structural Elements); s. 410.501. (Weathertight Elements). See, the tenants’ letter of complaint dated November 29, 2004 [Exh.8]; the Town of Tewksbury Board of Health reports issued in February and March 2005 [Exh.13, 15, 16, 19, 21, 23, 25, 26, 34, 105]; the premises inspection reports by EFI Global Inc. [Exh.27] and Gordon Air Quality Consultants, Inc. [Exh.100]; and photographs received in evidence [Exh.28-33, 55, 77-79, 97].

Pertinent to the issue of a “willful or knowing” violation, Board of Health reports in March 2005 note that the defendant had “shown disregard for orders pertaining to this property” [Exh.25], and that building permits had not been obtained. [Exh.26]. The uncontroverted evidence is that neither in 2003 nor in 2005 nor at any other time, did the defendants seek or obtain any building permit or certificate of occupancy for the property.

These conditions caused the tenant Helen Herman to become ill in the fall of 2004 and winter of 2005, with asthma, mold allergy, and gastroesophageal reflux disease, which her medical doctors, Joseph E. Kelleher, Ronald Paul Sen, Philip H. Thielhelm, and Karen Huyck, related to mold. [Exh.17, 18, 20, 35, 36, 45]. Also, both Helen Herman and Christian Langlois lost significant items of personal property which were contaminated with fungi and mold. The tenants moved from the subject premises in early March 2005.

As found by the jury, the housing defects and the defendant landlords’ common law negligence, breach of warranty of habitability, violation of quiet enjoyment, and unfair or deceptive acts or practices, caused the plaintiff tenants Helen Herman and Christian Langlois actual property damages and personal injuries in the sum of $726,000.

 

 

Also as found by the jury in their advisory verdict, the use or employment of an unfair or deceptive act or practice by John Sullivan and Kevin Sullivan, who actively performed and authorized the renovations without benefit of building permit or certificate of occupancy and without the preliminary, interval, and final inspections by building officials as required by the State Building Code, was a willful and knowing violation of Chapter 93A. However, there was not a willful or knowing violation on the part of Margaret Sullivan, who insofar as appears from the evidence was not similarly involved with the renovations or actively involved with the family real estate business.

See, Whelihan v. Markowski, 37 Mass.App. 209, 212-213, 638 N.E.2d 927, 929 (1994) (landlords violated c.93A when their manager installed non-safety window glass instead of reinforced glass as required by the State Building Code; property manager, without familiarizing himself with Code, intentionally put window-pane glass in a door; by choosing to remain uninformed about code requirements the manager consciously chose to disregard risk to tenant’s physical safety, which not only constituted a “willful or knowing” violation of c.93A, but also was conduct sufficiently egregious to justify treble damages).

See, Montanez v. Bagg, 24 Mass.App. 954, 956-957, 510 N.E.2d 298, 300 (1987) (rescript) (finding of a “willful or knowing” violation compelled as a matter of law, and case remanded for multiplication of tenants’ actual damages under Gen.L. c.93A §9(3), where landlord made no effort to obtain code enforcement department’s approval for re-rental, but contended that he had a “misunderstanding” of the requirements of the State Sanitary Code; judge’s finding that landlord’s conduct was not a “willful or knowing” violation and decision not to multiply damages based on conclusion that landlord had a “misunderstanding” of the requirements of the applicable law not warranted; award of multiple damages required as a matter of law).

See, Grossman v. Waltham Chemical Co., 14 Mass.App. 932, 934, 436 N.E.2d 1243, 1245-1246 (1982) (rescript) (company’s knowledge of deficiencies in its inspection and report sufficed to constitute a “knowing” violation of c.93A and thus an award of multiple damages was proper).

Kevin Sullivan testified that during his tenure as selectman of the Town of Tewksbury building permits were not required for the sort of renovations here involved. However, it is fundamental that duties under the Codes cannot be qualified by customary practice. The Codes, not prior course of dealing, course of performance, or usage of trade, provide the proper yardstick for measuring the landlords’ conduct. Berman & Sons, Inc. v. Jefferson, 379 Mass. 196, 202 fn.11, 396 N.E.2d 981, 986 fn.11 (1979); Boston Housing Authority v. Hemingway, 363 Mass. 184, 199, 293 N.E.2d 831, 843 (1973).

It is also fundamental that the “willful or knowing” requirement of 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, which, whether the defendant knows it or not, amount to violations of the law; that neither the failure of the defendant to apprise himself fully of the law, nor his misapprehension of what he did know about his obligations, is sufficient to negate the conclusion that his conduct runs afoul of the penalty provisions of Gen.L. c.93A §9(3). See, Whelihan v. Markowski, 37 Mass.App. 209,

211-213, 638 N.E.2d 927, 929 (1994), quoting Montanez v. Bagg, 24 Mass.App. 954, 956, 510 N.E.2d 298, 300 (1987) (rescript), citing Shaw v. Rodman Ford Truck Center, Inc., 19 Mass.App. 709, 712, 477 N.E.2d 413, 415 (1985), quoting Computer Systems Engineering Inc. v. Qantel, 571 F.Supp. 1365, 1375 (D.Mass. 1983), aff’d 740 F.2d 59, 68 (1st Cir. 1984).

Where there is a “willful or knowing” violation of c.93A, an award of multiple damages is required by Gen.L. c.93A §9(3). See, Montanez v. Bagg, 24 Mass.App. 954, 956-957, 510 N.E.2d 298, 300 (1987) (rescript); Stark v. Patalano Ford Sales, Inc., 30 Mass.App. 194, 204 fn.9, 567 N.E.2d 1237, 1243 fn.9 (1991). By the terms of the statute, Gen.L. c.93A §9(3), the award of multiple damages is to be up to three but not less than two times the amount of actual damages.

It is settled that the multiplication of Chapter 93A damages for a “willful or knowing” violation imposes a penalty that is to vary with the “culpability” of the defendant, and is based upon the “egregiousness” of the particular conduct. See, Kattar v. Demoulas, 433 Mass. 1, 15-16, 739 N.E.2d 246, 258-259 (2000), citing International Fidelity Insurance Co. v. Wilson, 387 Mass. 841, 853, 443 N.E.2d 1308, 1315 (1983); Montanez v. Bagg, 24 Mass.App. 954, 957, 510 N.E.2d 298, 300-301 (1987) (rescript), at fn.7, citing Brown v. LeClair, 20 Mass.App. 976, 980, 482 N.E.2d 870, 874 (1985) (rescript), citing International Fidelity Insurance Co. v. Wilson, 387 Mass. 841, 853-858, 443 N.E.2d 1308, 1315-1319 (1983).

Beyond that, the appellate courts have acknowledged that “neither c.93A nor our cases construing that statute provide a trial judge with clear guidance in deciding how damages should be multiplied.” Rita v. Carella, 394 Mass. 822, 829, 477 N.E.2d 1016, 1020 (1985); Brown v. LeClair, 20 Mass.App. 976, 980, 482 N.E.2d 870, 874 (1985) (rescript).

Here, the plaintiff tenants seek an award of multiple damages three times the amount of their award of actual damages. But because the amount of actual damages to be multiplied in this case is substantial, and because there should not be an unseemly “piling on” of sanctions once an illegality is found, I believe that the better exercise of discretion is to impose an award of double, rather than triple damages under Gen.L. c.93A d. 9(3).

See, Leardi v. Brown, 394 Mass. 151, 164, 474 N.E.2d 1094, 1104 (1985) (trial judge allowed only one award of statutory damages per tenant household, although there were asserted separate claims for statutory damages for each of eight allegedly illegal acts). See also, Ianello v. Court Management Corp., 509 N.E.2d 1, 3, 400 Mass. 321, 324-325 (1987) (limiting multiple damages under quiet enjoyment law, Gen.L. c.186 §14, and retaliation law, Gen.L. c.186 s. 18, where landlord’s one wrongful act violated both laws and resulted in two separate legal injuries).

In International Fidelity Ins. Co. v. Wilson, 387 Mass. 841, 853-858, 443 N.E.2d 1308, 1315-1319 (1983), the Court held, upon the question whether there be independent or joint and several liability for multiple damages awards under Chapter 93A, that the statutory language was inconclusive, that analogy to the federal Clayton Antitrust Act was unpersuasive, that a more apt analogy was to be found in the former Massachusetts wrongful death statutes, that the imposition of independent rather than joint and several liability would better deter the proscribed conduct, encourage vindictive

lawsuits, promote reasonable settlements, tie the actual recovery from each defendant to the degree of each defendant’s culpability, ensuring that the distinction between a defendant subject to double damages and one subject to treble damages not be lost, furthering the purpose and objective of the statute. The Court, therefore, on the defendants’ appeal, affirmed judgments awarding joint and several liability for actual damages but imposing independent and several liability for punitive damages.

See also, Kattar v. Demoulas, 433 Mass. 1, 15-16, 739 N.E.2d 246, 258-259 (2000), where, on the plaintiffs’ appeal, the Court rejected the argument that because multiple (double) damages were ordered against one defendant, other defendants also were required to be found subject to multiple damages. Holding that, where c.93A ultimately ties liability for multiple damages to the degree of the defendant’s culpability, and multiple damages are to be assessed based on the egregiousness of each defendant’s conduct, the judge’s findings that the difference between the conduct of one defendant, who was the mastermind, and the others, was a matter of degree, were within the judge’s discretion and not clearly erroneous.

The International Fidelity and Kattar cases notwithstanding, however, it appears that the appellate courts have approved multiple damage awards that were imposed on a joint and several, rather than on an independent and several basis:

See, Scofield v. Berman & Sons, Inc., 393 Mass. 95, 106-107, 469 N.E.2d 805, 813-814 (1984) (treble damages awarded under rent control law against four defendants, apparently on a joint and several basis; precluding “duplicate recovery” under c.93A); but see, Scofield v. Berman & Sons, Inc., 393 Mass. 95, 115 fn.25, 469 N.E.2d 805, 818 fn.25 (1984) (where the Court distinguished between joint and several liability under Gen.L. c.186 s. 18, and independent and several liability under Gen.L. c.93A s. 9(3) and §11).

See, Dorgan v. Loukas, 19 Mass.App. 959, 960, 473 N.E.2d 1151, 1153 (1985) (rescript) (treble damages awarded under c.93A against two defendants, apparently on a joint and several basis).

See, Rita v. Carella, 394 Mass. 822, 828-829, 477 N.E.2d 1016, 1019-1020 (1985) (treble damages awarded under rent control law and c.93A against two defendants, apparently on a joint and several basis, the Court stating that there was no indication either in the Scofield case or in the Rita case that plaintiffs would have received a larger damage award under c.93A than they received under the rent control ordinance).

See, Whelihan v. Markowski, 37 Mass.App. 209, 211-213, 638 N.E.2d 927, 929 (1994) (treble damages awarded under c.93A against two owner-landlords, apparently on a joint and several basis, where owners’ building manager willfully and knowingly violated c.93A by failing to consult State Building Code requirements before installing non-safety grade window-pane glass in an apartment door); but see, Whelihan v. Markowski, 37 Mass.App. 209, 210 fn.4, 638 N.E.2d 927, 928 fn.4 (1994) (where the court noted that the parties stipulated that all actions of the property manager were to be considered binding upon the property owner defendants for purposes of the action, and that the defendants did not dispute the judge’s statement that “[e]ven absent such a stipulation, standard principles of agency law would yield the same result.”)

To be sure, the approval of multiple damage awards on a joint and several basis in the Scofield, Dorgan, Rita, and Whelihan cases

has been without comment by the appellate courts. However, I believe that these cases indicate that our appellate courts would approve an exception to the general rule of the International Fidelity and Kattar cases that multiple damage liability under c.93A be on an independent rather than on a joint and several basis.

In this case, (1) where the underlying “willful and knowing” violation by the defendant property manager and by the defendant property owner is exactly the same – renovating rental property without a building permit, without a certificate of occupancy, and without the preliminary, interval, and final inspections by building officials that the law requires, (2) where the amount of multiple damages to be imposed, even on a double damages basis, is substantial, (3) where, insofar as legally permissible, there should not be an unseemly “piling on” of sanctions once an illegality is found, and (4) where there does not appear to be anything either in the terms of the statute or in appellate court rulings that prevents it, I believe that the imposition of multiple damages liability on a joint and several basis rather than on an independent and several basis is appropriate.

 

 

 

ORDER

 

Judgment shall enter on the verdict in favor of the plaintiffs HELEN HERMAN and CHRISTIAN LANGLOIS jointly and severally against the defendants JOHN SULLIVAN and KEVIN SULLIVAN and MARGARET SULLIVAN for actual damages in the sum of $726,000, together with prejudgment interest as provided by law.

Judgment shall enter under Gen.L. c.93A s. 9(3) in favor of the plaintiffs HELEN HERMAN and CHRISTIAN LANGLOIS jointly and severally against the defendants JOHN SULLIVAN and KEVIN SULLIVAN for double damages in the sum of $726,000.

The plaintiffs shall have a general real estate attachment in the amount of $2,000,000.

Hearing on the plaintiffs application for reasonable attorneys fees and costs under Gen.L. c.93A s. 9(4) shall be held at the Lawrence session of this Court at nine o’clock a.m. on Friday April 24, 2009.

 

 

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

KRISTI L. DEVINE Plaintiff v. BARBARA FOSTER Defendant

 

 

NORTHEAST HOUSING COURT

 

 

Docket # No. 07-CV-00262, No. 08-SP-00014

 

Parties: KRISTI L. DEVINE Plaintiff v. BARBARA FOSTER Defendant

 

Judge: /s/David D. Kerman

Associate Justice

 

Date: April 27, 2009

 

RULINGS AND ORDER

 

1. Subject matter jurisdiction

There was no lack of subject matter jurisdiction in this matter. The disputes arose out of the relationship of landlord and tenant and the claims and counterclaims of the parties involved classic issues of housing law that are clearly within the specialized subject matter jurisdiction of the housing court. See, Gen.L. c.185C s. 2, s. 3.

The landlord’s argument that the tenants’ counterclaims were not justiciable under the summary process law, Gen.L. c.239 s. 8A ¶1, is without merit for the simple reason that the landlord brought her summary process action to recover possession on grounds of nonpayment of rent as well as for other supposed breaches of the lease (although her claims were not supported by the evidence, and also were not properly supported under USPR Rule 2(d)(2) by the filing of any notice to quit for nonpayment of rent or other notice purporting to terminate the lease). The counterclaims were properly interposed under the statute.

Moreover, the landlord’s subject matter jurisdiction argument based on the Barkan and Fafard cases is without merit. It is true of course that lack of subject matter jurisdiction cannot be waived. See, Goes v. Feldman, 8 Mass.App. 84, 85, 391 N.E.2d 943, 944 (1979). But see, Harker v. City of Holyoke, 390 Mass. 555, 558-561, 457 N.E.2d 1115, 1117-1119 (1983) (re-litigation of plaintiffs’ claims in the superior court was precluded regardless of whether the housing court had subject matter jurisdiction). It is also true that a failure to bring separate suit rather than counterclaim may be “jurisdictional” in the sense that a motion to dismiss the counterclaim, if timely made, must be allowed. See, Barkan Management Co. v. Sheehan, 60 Mass.App. 1120, 804 N.E.2d 962 (2004) (R.1:28 decision) (“Because the trial court lacked jurisdiction to hear the counterclaims asserted in this action, the counterclaims should have been dismissed”).

But such a defect is only a defect in pleading and procedure that does not affect subject matter jurisdiction. See, Fafard v. Lincoln Pharmacy of Milford, Inc., 439 Mass. 512, 516-517, 789 N.E.2d 147, 150 (2003) (“The proper procedure for a defendant in such a situation is to file a separate claim, and move to consolidate the actions”). That subject matter jurisdiction is not implicated is demonstrated by noting that if the tenants’ counterclaims in this case were dismissed on Barkan and Fafard grounds, those claims could be re-instituted by separate suit where, as here, the subject matter of the claims is within the specialized subject matter jurisdiction of the housing court.

The landlord’s subject matter jurisdiction argument also overlooks the fact that the landlord’s summary process action no. 08-SP-00014 was preceded by her civil action no. 07-CV-00254 in which the tenants raised the issues of retaliation and quiet enjoyment as counterclaims [Doc.#15], and also was preceded by the tenants’ civil

action no. 07-CV-00262 in which the tenants made the same claims. The three cases were tried on a consolidated basis, and thus there was full compliance with the doctrine of Fafard v. Lincoln Pharmacy of Milford, Inc., 439 Mass. 512, 516-517, 789 N.E.2d 147, 150 (2003).

Furthermore, although the landlord did file (on the first day of trial) a motion to dismiss the summary process counterclaims [Doc#6], the grounds stated in the motion were that the counterclaims were “baseless and untimely.” There was no suggestion that the tenants’ counterclaims could not be brought under Gen.L. c.239 §8A ¶1 or that there was a lack of jurisdiction. The landlord then tried her case to conclusion, without raising any issue as to defective procedure. Any supposed defect was waived. See, MRCvP Rule 8(c), 12(b)(1), 12(b)(6), 12(h), 15(b).

2. Personal jurisdiction

There was no lack of personal jurisdiction in this matter. The landlord, who is not an attorney, appeared personally and pro se in all three cases, all in her individual capacity and not as the representative of any supposed trust. The suggestion that somehow she is not subject to the court’s personal jurisdiction is particularly disingenuous, inasmuch as she had a clear right to represent herself pro se, but equally clearly she had no right to represent anyone else, including a corporate entity or trust. See, LAS Collection Management v. Pagan, 447 Mass. 847, 858 N.E.2d 273 (2006) and authorities cited.

In her own cases nos. 07-CV-00254 and 08-SP-00014 the landlord signed her initial complaints as “Kristi L. Devine TTee” (without spelling out the word “trustee” and without stating the name of any trust). In her other pleadings, she used the caption “KRISTI L. DEVINE, Plaintiff” and signed her name either as “Kristi L. Devine” without any suffix [Doc.#8, 11, 12] or as “Kristi Devine, Pro Se” [Doc.#24, 47]. The tenants’ suit no. 07-CV-00262 was brought against “Kristi L. Devine” (personally), and the landlord signed her pleadings in that case as “Kristi L. Devine” (personally).

At no time (even in connection with the instant motion) did the landlord offer evidence of any trust entity or file with the court any trust document. From all that appears from the court records the “Bali Newbury Trust” (if it exists) may be a real estate nominee trust (a mere agency relationship), not a “true trust.”

After trial of all three cases on a consolidated basis (the cases including the tenants’ suit no. 07-CV-00262 having been brought against “Kristi L. Devine” in her personal individual capacity), liability was properly adjudicated against the landlord personally, for wrongs committed by her personally (violation of quiet enjoyment under Gen.L. c.186 §14 and reprisal and retaliation under Gen.L. c.186 s. 18), not against any corporate entity or trust.

Furthermore, the landlord did not file any motion to dismiss for misjoinder or nonjoinder, and without raising any issue as to defective personal jurisdiction, she tried her case to conclusion, appearing personally and pro se. Any supposed defect was waived. See, MRCvP Rule 8(c), 12(b)(2), 12(b)(7), 12(b)(8), 12(h), 15(b).

 

 

ORDER

 

The landlord’s motion styled “Motion of Bali Newbury Trust,

Pursuant to Mass.R.Civ.P. 60(b)(4), to Vacate February 22, 2008 Judgment for Lack of Jurisdiction” [Doc.#52] is denied.

 

 

 

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

VANITA ELLERBEE Plaintiff v. NORTH ANDOVER HOUSING AUTHORITY Defendant

 

 

NORTHEAST HOUSING COURT

 

 

Docket # No. 09-CV-00026

 

Parties: VANITA ELLERBEE Plaintiff v. NORTH ANDOVER HOUSING AUTHORITY Defendant

 

Judge: /s/David D. Kerman

Associate Justice

 

Date: April 27, 2009

 

DECISION AND ORDER

 

The plaintiff Section 8 tenant’s substantive law argument that the criminal activities of theft, fraud, larceny, and receiving stolen property cannot constitute a permissive ground for termination under HUD regulations, 24 C.F.R. s. 982.551(k),(l) (“Obligations of participant; Fraud and other program violation, Crime by household members”), §982.552(c)(1)(i),(iv),(xi) (“PHA denial or termination of assistance for family; Authority to deny admission or terminate assistance; Grounds for denial or termination of assistance; [family obligations, fraud, criminal activity]”), and s. 982.553(b)(2) (“Denial of admission and termination of assistance for criminals and alcohol abusers; Terminating assistance; Terminating assistance for other criminals”), was made and rejected in Costa v. Fall River Housing Authority, 71 Mass.App. 269, 275-278, 881 N.E.2d 800, 805-808 (2008), aff’d 453 Mass. 614, 620, 903 N.E.2d 1098, ___ (2009). The substantive law argument is foreclosed by the appellate courts’ rulings in the Costa case.

However, the tenant’s procedural arguments are sound. Both the public housing agency’s [PHA] notice of termination of assistance dated November 14, 2008, which terminated the tenant’s participation in the Section 8 Housing Choice Voucher Program effective December 14, 2008, and the PHA’s letter of decision dated December 12, 2008, which upheld the termination after an informal hearing, are inadequate and ineffective.

 

The November 14, 2008, notice (which inappropriately addresses the tenant by first name) merely states: “The reason for this action is Crime by family members. The source of this information is the Randolph Police Departments. See attached police report (sent certified).” It is not clear whether the seven-page police report was in fact attached to the PHA’s termination notice. The copy of the report produced by the PHA at the court hearing of this matter bears the date of January 8, 2009, among others. Regardless, the police report which is captioned “*PRELIM[INARY] DO NOT GIVE OUT*”

 

and “*NARRATIVE*” does not adequately amplify the clearly inadequate allegation “Crime by family members” as would furnish the tenant with “timely and informative” and legally sufficient notice. Compare, Costa v. Fall River Housing Authority, 71 Mass.App. 269, 280-281, 881 N.E.2d 800, 809 (2008), aff’d 453 Mass. 614, 903 N.E.2d 1098 (2009). See, Olan v. New Bedford Housing Authority, 435 Mass. 364, 372-373, 758 N.E.2d 1039, 1046-1047 (2001), mod. 50 Mass.App. 188, 204-206, 736 N.E.2d 410, 423-424 (2000). See also, Piano Craft Guild v. Glasgow, Bos.Hsg.Ct. No. 91-SP-01043 (June 4, 1991); Lowell Housing Authority v. Sullivan, N.E.Hsg.Ct. No. 92-SP-00063 (July 30, 1992); Person v. Macintire, N.E.Hsg.Ct. No. 00-CV-00099, No. 00-SP-02901 (January 26, 2001), and cases cited: In Re Gault, 387 U.S. 1, 7, 31-34 (1966); Goldberg v. Kelly, 397 U.S. 254, 267-268 (1970); Escalera v. New York City Housing Authority, 425 F.2d 853, 858 fn.2, 862-863 (2d Cir. 1970); Caulder v. Durham Housing Authority, 433 F.2d 998, 1003-1004 (4th Cir.1970); Housing Authority v. Saylors, 19 Wash.App. 871, 874, 578 P.2d 76, 78-79 (1978); DeKalb County Housing Authority v. Pyrtle, 167 Ga.App. 181, 182, 306 S.E.2d 9, 10-11 (1983); Edgecomb v. Housing Authority, 824 F.Supp. 312, 313-315 (D.Conn. 1993).

 

The December 12, 2008, letter of decision also is not sufficient. The decision correctly states the evidentiary standard of a preponderance of the evidence and cites the applicable HUD regulation, 24 C.F.R. §982.553(c) (“Evidence of criminal activity”), but the mere conclusory statement, “I find that the police reports presented show by a preponderance of the evidence that you engaged in criminal activity including identity theft, fraud, larceny and receiving stolen property” does not constitute a legally adequate written decision setting out factual findings and reasoning as required by HUD regulation, 24 C.F.R. s. 982.555(e)(6) (“Informal hearing for participant; Hearing procedures; Issuance of decision”). See, Costa v. Fall River Housing Authority, 453 Mass. 614, 629-632, 903 N.E.2d 1098, ___ (2009), aff’g 71 Mass.App. 269, 280, 282, 881 N.E.2d 800, 809, 810 (2008). See also, Boston Housing Authority v. Bryant, 44 Mass.App. 776, 779-780, 693 N.E.2d 1060, 1062 (1998) (a legal conclusion cannot rest on “conjecture about hypothetical facts”). See also, Lowell Housing Authority v. Sullivan, N.E.Hsg.Ct. No. 92-SP-00063 (July 30, 1992); 124 Green Street, LLC v. Rogers, N.E.Hsg.Ct. No. 04-SP-00040 (February 24, 2004); Rodriguez v. Salem Housing Authority, N.E.Hsg.Ct. No. 02-CV-00099 (February 24, 2004), and cases cited: Goldberg v. Kelly, 397 U.S. 254, 267, 271 (1970); Escalera v. New York City Housing Authority, 425 F.2d 853, 858 fn.2, 862 (2d Cir. 1970); Caulder v. Durham Housing Authority, 433 F.2d 998, 1003-1004 (4th Cir. 1970); Housing Authority v. Saylors, 19 Wash.App. 871, 872-875, 578 P.2d 76, 78-79 (1978); Edgecomb v. Housing Authority, 824 F.Supp. 312, 316 (D.Conn. 1993).

Accordingly, the PHA’s notice of termination of assistance dated November 14, 2008, which terminated the tenant’s participation in the Section 8 Housing Choice Voucher Program effective December 14, 2008, and the PHA’s letter of decision dated December 12, 2008, which upheld the termination after an informal hearing, must be annulled and set aside.

Two other issues, likely to arise again if the PHA chooses to proceed with termination of the tenant’s Section 8 subsidy, should be considered.

 

 

First, the PHA seems to have relied only on the second-hand information contained in the police report, not on any first-hand testimony. I have ruled that such hearsay evidence, if reliable, is sufficient, and that if a tenant wants witnesses to appear it is her responsibility to call witnesses and arrange for them to testify. See, Person v. Macintire, N.E.Hsg.Ct. No. 00-CV-00099, No. 00-SP-02901 (January 26, 2001); Rodriguez v. Salem Housing Authority, N.E.Hsg. Ct. No. 02-CV-00099 (July 29, 2003, February 24, 2004); 124 Green Street, LLC v. Rogers, N.E.Hsg.Ct. No. 04-SP-00040 (February 24, 2004); McDonald v. Schultz, N.E.Hsg.Ct. No. 04-SP-02699 (January 4, 2005); Heritage Common Associates v. Rosa, N.E.Hsg.Ct. No. 05-SP-03127 (October 4, 2006), and cases cited: Richardson v. Perales, 402 U.S. 389, 402 (1971); Murphy v. Superintendent, 396 Mass. 830, 489 N.E.2d 661 (1986); Embers of Salisbury, Inc. v. Alcoholic Beverages Control Commission, 401 Mass. 526, 517 N.E.2d 830 (1988); Merisme v. Board of Appeals, 27 Mass.App. 470, 539 N.E.2d 1052 (1989); Edward E. v. Department of Social Services, 42 Mass.App. 478, 678 N.E.2d 163 (1997). However, in Costa v. Fall River Housing Authority, 71 Mass.App. 269, 281, 881 N.E.2d 800, 809-810 (2008), aff’d 453 Mass. 614, 623-629, 903 N.E.2d 1098, ___ (2009), the appellate courts held, in part because HUD regulations do not provide the participant with the right to subpoena witnesses, that the PHA’s reliance on a police report and a “blatantly untrustworthy” newspaper article was misguided. At any future agency hearing in this matter, the PHA should ensure that any person whom the tenant wants to call as a witness appears and is present to testify.

Second, the PHA’s notice of termination of assistance dated November 14, 2008, terminating the tenant’s participation in the Section 8 Housing Choice Voucher Program effective December 14, 2008, states, “If you remain in the unit after this date, you will be responsible for the full amount of the rent.” At the court hearing of this matter, the PHA stated that it had not paid the tenant’s landlord the PHA’s share of the Section 8 rents after December 14, 2008. This, the PHA cannot do.

Of course, the PHA may terminate the Section 8 subsidy for a tenant who is in breach of Section 8 program requirements, and the PHA may compel the landlord to terminate the Section 8 program subsidized landlord-tenant relationship and evict the tenant without unnecessary delay. But where the landlord is in compliance with his obligations under the HAP contract and the lease, the PHA may not treat him as though he is in breach, due to fault solely on the part of the tenant.

 

As a matter of contract law, the PHA is no more free to unilaterally alter the terms of the HAP contract with the landlord than is the landlord (or the tenant) free to unilaterally alter the terms of the lease. See, Williams v. Seder, 306 Mass. 134, 136-137, 27 N.E.2d 708, 710 (1940); Maguire v. Haddad, 325 Mass. 590, 91 N.E.2d 769 (1950).

As a matter of federal regulatory law, the PHA (but not the tenant) is liable for the PHA’s share of the Section 8 rents until the tenant vacates. See, HTG Realty v. Fabal, N.E.Hsg.Ct. No. 08-SP-02917 (October 30, 2008), and authorities cited: HUD Regulation 24 C.F.R. §982.311(b) (“When assistance is paid; Termination of payment: When owner terminates the lease”) (“if the owner has commenced the process to evict the tenant, and if the family continues to reside in the unit, the PHA must continue to make housing assistance payments to the owner in accordance with the HAP contract until the owner has obtained a court judgment or other process allowing the owner to evict the tenant. The HA may continue such payments until the family moves from or is evicted from the unit.”); §982.311(d) (“Family move-out”) (“the PHA may not make any housing assistance payment to the owner for any month after the month when the family moves out. The owner may keep the housing assistance payment for the month when the family moves out of the unit.”); Curtis v. Surrette, 49 Mass.App. 99, 726 N.E.2d 967 (2000). See also, HUD Regulation 24 C.F.R. §982.451(b)(5)(i) (“Housing assistance payments contract”) (“The PHA must pay the housing assistance payment promptly when due to the owner in accordance with the HAP contract”).

I am aware that the above-quoted language of subsection §982.311(b) (“Termination of payment: When owner terminates the lease”) does not appear in subsection §982.311(c) (“Termination of payment: Other reasons for termination”) (“Housing assistance payments terminate if: (1) The lease terminates; (2) The HAP contract terminates; or (3) The PHA terminates assistance for the family.”). The above-quoted language of subsection §982.311(b) also does not appear in subsection §982.311(d). And the quoted language of subsection §982.311(d) (“Family move-out”) does not appear either in subsection §982.311(c) or in subsection §982.311(b).

The structural placement of the language of subsections §982.311(b) and §982.311(d) cannot be regarded as determinative because subsection s. 982.311(c), which uses the word “if” and does not use the word “until” or the word “after” or the word “when,” does not speak to the issue of the effective date of cessation of housing assistance payments. Compare, §982.311(b) (“until the family moves”) and §982.311(d) (“after the month when the family moves out”). And logically, there is no reason to suppose that the HUD rule-makers intended a different outcome for the continuation and effective date of cessation of housing assistance payments depending on whether the owner, the tenant, or the PHA terminates the Section 8 program subsidized landlord-tenant relationship. In all three cases, the result is the same – the landlord cannot re-rent the Section 8 program assisted dwelling unit to another tenant until the Section 8 program assisted tenant family vacates.

 

 

Indeed, a contrary result would leave the landlord wholly without remedy because, the unlikelihood of collection aside, the landlord cannot legally recover the PHA’s share of the Section 8 program rent from the tenant. See, Curtis v. Surrette, 49 Mass.App. 99, 726 N.E.2d 967 (2000); HUD Regulations, 24 C.F.R. §982.310(b) (“Owner termination of tenancy; Nonpayment by PHA: Not grounds for termination of tenancy. (1) The family is not responsible for payment of the portion of the rent to owner covered by the housing assistance payment under the HAP contract between the owner and the PHA. (2) The PHA failure to pay the housing assistance payment to the owner is not a violation of the lease between the tenant and the owner. During the term of the lease the owner may not terminate the tenancy of the family for nonpayment of the PHA housing assistance payment.”);§982.451(b)(4)(iii) (“Housing assistance payments contract”) (“The family is not responsible for payment of the portion of rent to owner covered by the housing assistance payment under the HAP contract between the owner and the PHA. See §982.310(b)”).

In this particular case a contrary result would be particularly perverse, inasmuch as the PHA alleges that the landlord was the victim of the tenant’s crimes.

 

ORDER

 

The November 14, 2008, notice of termination and the December 12, 2008, decision are annulled and set aside. The PHA is free to terminate the tenant’s Section 8 program assistance in accordance with law. Meanwhile, the PHA shall reinstate assistance and shall forthwith pay the landlord the PHA’s share of rents due, unless and until the tenant voluntarily vacates the Section 8 program assisted unit, or until the tenant is evicted pursuant to court order.

 

 

 

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

HELEN HERMAN Plaintiff v. KEVIN SULLIVAN Defendant

 

 

NORTHEAST HOUSING COURT

 

 

Docket # No. 05-CV-00047

 

Parties: HELEN HERMAN Plaintiff v. KEVIN SULLIVAN Defendant

 

Judge: /s/David D. Kerman

Associate Justice

 

Date: May 4, 2009

 

DECISION AND ORDER ON MOTION FOR ATTORNEY FEES AND COSTS

 

In connection with their successful recovery of $726,000 for unfair or deceptive acts or practices under Gen.L. c.93A §9(3) (and $12,600 for quiet enjoyment under Gen.L. c.186 s. 14, which the jury found duplicative of the 93A recovery), and additional $726,000 multiple damages under 93A, the “prevailing party” plaintiffs seek an award of attorney fees and costs under Gen.L. c.93A s. 9(4).

The total amount requested is $245,120.48, which consists of $98,310 for Attorney Doyle (for 327.7 hours work at $300 per hour), $103,950 for Attorney Steinberg (for 346.5 hours work at $300 per hour), and $42,860.48 for litigation costs.

 

1. Attorney fees

 

I allow the full amounts of the attorney fees requested. I have examined the attorneys’ itemized time records, and I find that the time spent is reasonable, both in relation to the particular itemized tasks, and in relation to the overall complexity and difficulty of the particular case. There were four overlapping legal theories of common law negligence, breach of warranty of habitability, violation of covenant of quiet enjoyment, and unfair or deceptive acts or practices, which involved the same items of damage. There was an eight day trial, which included more than two days of jury deliberations. The plaintiffs’ case for permanent personal injuries due to toxic mold exposure was scientifically complex, and from the plaintiffs’ standpoint the issues of causation and extent of damages were especially difficult to advocate in an understandable and commonsense way. The case for the defendants was difficult too, and the lawyers for both sides presented an exceptionally well tried case.

 

In their opposition the defendants contend that the plaintiffs exaggerate and over-state their billable hours spent for depositions. However, the difference between the time spent at depositions by Attorneys Doyle and Steinberg was adequately explained at the hearing of this matter on April 24, 2009. (The deposition time requested for Attorney Doyle includes time for travel, waiting, and negotiation at the depositions. The time requested for Attorney Steinberg does not.) I find that the time billed for depositions is not exaggerated or over-stated, and that it is reasonable.

At the hearing of this matter on April 24, 2009, the defendants suggested that the trial time of only one of the plaintiffs’ lawyers should be compensated because the participation of two lawyers at trial was duplicative and unessential. I find, however, that the plaintiffs were not “over-represented” by having two lawyers at trial, and that the participation of two lawyers in this particularly complicated and difficult case was reasonable, even prudent. (I note also that the defendants had two lawyers at trial.)

The requested $300 hourly rate is a reasonable rate for each of the plaintiffs’ attorneys, considering their experiences and qualifications, and considering the nature of the particular case. The defendants submitted with their opposition counter-affidavits by three attorneys from the Greater Lowell area, suggesting that their own rates of $200 and $150 per hour are appropriate in the locale for the handling of landlord-tenant, criminal, and personal injury cases in the district, superior, and housing courts. (I note that the defendants do not offer their own attorneys’ billing rates, or their own attorneys’ invoices and time records, in opposition to the plaintiffs’ attorney fee application.) I am not persuaded by the defendants’ counter-affidavits, not because I doubt their accuracy, but because this is not a comparable landlord-tenant or comparable personal injury case. More pertinent is the affidavit by Attorney Doyle (supported by the affidavit by Attorney Hiller) which states that he has served as a toxic mold litigation seminar presenter for MCLE, that to date only two residential landlord-tenant toxic mold personal injury cases have been successfully tried in Massachusetts, and that he tried them both. The plaintiffs seek an attorney fee award that is based only on a $300 per hour “lodestar” rate. They do not seek an enhancement of the “lodestar” amount, either on the basis of the difficulty of the case, or on the basis of the results achieved, or because of the contingent risks of losing the litigation. I have no difficulty approving the $300 requested hourly rate in this particular case.

Based upon the moving and opposition papers, the hearing held on April 24, 2009, and my observations at trial (and before trial), I find and rule that a “prevailing party” attorney fee award in this case in the full amount requested of $202,260 is fair and reasonable.

 

2. Litigation costs

 

I allow $18,319.65 of the $42,860.48 litigation costs requested, as follows:

 

item requested allowed

filing and recording fees 325.00 325.00

service of process fees 288.62 288.62

depositions 2,295.85 2,295.85

records 225.65 225.65

printing 184.53 184.53

experts 39,186.28 15,000.00

bactes 95.20 0.00

mail 61.35 0.00

travel 90.00 0.00

parking 108.00 0.00

totals $42,860.48 $18,319.65

 

 

I allow $2,000.00 of the $4,250.00 amount requested for the plaintiffs’ economic expert Neville S. Lee, Ph.D. (I note that Dr. Lee’s itemized invoice is for $3,250, not for $4,250.)

I allow $4,000.00 of the $6,602.95 amount requested for the plaintiffs’ environmental expert David Gordon, C.I.H., P.E., of Gordon Air Quality Consultants, Inc. (I do not have an itemized invoice for Gordon Air Quality Consultants, Inc.)

Of the $28,333.33 amount requested for the plaintiffs’ medical expert Karen L. Huyuk, M.D., Ph.D., I allow $9,000.00 (for 18 hours work at $500 per hour).

I find that 18 hours work by Dr. Huyuk is reasonable. I have no doubt that Dr. Huyuk spent 3 hours preparing for deposition in August 2008, and that she also spent 25 hours preparing for trial in February and March 2009. But some significant portion of the time Dr. Huyuk spent for research and review of the relevant leading-edge medical issues, which I take into account in her billing rate, should be allocated not to her preparation for the trial of this particular case, but to Dr. Huyuk’s continuing education and professional and academic development, and perhaps also to the continued treatment of her patient and to the management of her patient’s medical care. However, the defendants must assume the responsibility for Dr. Huyuk’s court attendance on two separate days, because Dr. Huyuk’s testimony was postponed for a day in order to take the defendants’ medical witness out of order for his and the defendants’ convenience.

I find that Dr. Huyuk’s hourly rate of $500 per hour is reasonable, but that her higher daily rate of $5,000 per day or any portion of a day for court appearances is not. Instead, I find that a daily rate of $3,500, based on a 7 hour day and her $500 hourly rate, is appropriate.

 

 

I disallow $95.20 for “bactes” (which is unexplained), and I disallow $61.35 for mail, $90.00 for travel, and $108.00 for parking, which are not properly “costs” but are instead overhead that is properly absorbed in the attorneys (or experts) fees.

Upon the papers filed, the hearing held, and my first-hand observations, I find and rule that an award of costs in the amount of $18,319.65 is fair and reasonable.

 

 

ORDER

 

The plaintiffs’ motion for attorney fees and costs is allowed in the sum of $220,579.65.

 

 

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

MARC R. TARDIFF, Plaintiff v. ROBERT B. BALDINI, Defendant

 

 

 

NORTHEAST

 

 

Docket # No. 09-CV-00117

 

Parties: MARC R. TARDIFF, Plaintiff v. ROBERT B. BALDINI, Defendant

 

Judge: /s/David D. Kerman

Associate Justice

 

Date: July 23, 2009

 

ORDER

As there exists a substantial question of subject matter jurisdiction over the complaint which seeks money damages for personal injuries and property damages due to a fire in residential housing premises caused by negligence and violation of fire, building and safety codes, Isakson v. Vincequere, 33 Mass.App. 281, 598 N.E.2d 1140 (1992); Worcester Heritage Society, Inc. v. Trussell, 31 Mass.App. 343, 577 N.E.2d 1009 (1991); Graveline v. Baybank Valley Trust Co., 19 Mass.App. 253, 473 N.E.2d 700 (1985), this case is referred to the Chief Justices of the Trial Court and of the Housing Court for interdepartmental assignment or transfer under Gen.L. c.211B §9 and the doctrine of Konstantopolous v. Whateley, 384 Mass. 123, 424 N.E.2d 210 (1981) and Nixon v. Levinson, 20 Mass.App. 904, 477 N.E.2d 1046 (1985) (rescript), or other disposition in accordance with law.

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

JANICE M. CHEEVER, Plaintiff v. STANLEY J. SLEPOY, Defendant. STANLEY J. SLEPOY, Plaintiff v. MELISSA J. BICKFORD, Defendant

 

NORTHEAST

 

 

Docket # No. 09-CV-00110, No. 09-SP-01679

 

Parties: JANICE M. CHEEVER, Plaintiff v. STANLEY J. SLEPOY, Defendant. STANLEY J. SLEPOY, Plaintiff v. MELISSA J. BICKFORD, Defendant

 

Judge: /s/David D. Kerman

Associate Justice

 

Date: July 23, 2009

 

ORDER

 

As agreed and as ordered in open court on July 23, 2009, the landlord Stanley J. Slepoy shall stay away, 100 yards at least, from the tenant Janice M. Cheever, and from the tenants Craig A. Bickford and Melissa J. Bickford, and from the tenants’ children, Andrea Bickford, John Bickford, Emily Bickford, and Hannah Bickford, and from the tenants’ guests, and from the 27 Dodge Road, Rowley, premises, all pending further order. The Clerk shall communicate this order to the Town of Rowley Police Department.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

STANLEY J. SLEPOY, Plaintiff v. MELISSA J. BICKFORD, Defendant

 

NORTHEAST

 

 

Docket # No. 09-SP-01679

 

Parties: STANLEY J. SLEPOY, Plaintiff v. MELISSA J. BICKFORD, Defendant

 

Judge: /s/David D. Kerman

Associate Justice

 

Date: July 27, 2009

 

DECISION AND ORDER

This troubled landlord tenant relationship began on August 16, 2008, under a “Massachusetts Residential Use and Occupancy Agreement” for shared occupancy of a single family house in Rowley. The Agreement, which the landlord prepared, ran through June 30, 2009 [¶2], with rents at $1,700 per month [¶3], plus 50% of shared heating oil and electric utilities and “basic” cable TV and internet costs “estimated (on a budgeted basis) at $300.00 per month” [¶11].

 

At the beginning of the relationship the landlord represented that the respective living quarters would be separated by walled-off doors and partitions and by the construction of a separate kitchen. He also promised amenities including a deck, a swimming or wading pool, and conversion of a storage shed to a playhouse for the tenants’ children. The landlord did wall off one door, but segregated living quarters, separate kitchen, and the other amenities were never provided. When the landlord rented basement space to a new tenant on April 24, 2009, he prevented her from putting her lawn chairs outdoors; instead, the landlord put the chairs in the storage shed in an effort to hide from the municipal authorities the number of people who were living there.

 

Disagreements arose, between the landlord Stanley J. Slepoy and the tenants Craig A. Bickford and Melissa J. Bickford, between the landlord and the new tenant Janice M. Cheever, whose case against the

landlord was adjudicated by agreement for judgment in Cheever v. Slepoy, N.E.Hsg.Ct. No. 09-CV-00110, on July 2, 2009, and between the landlord and a previous tenant Justin Washington, who lived at the premises from December 14, 2007, until February 14, 2009, whose case against the landlord was adjudicated by judgment in Washington v. Slepoy, Newburyport District Court No. 2009-22-SC-000416, on July 16, 2009.

 

The disagreements resulted in the tenant’s complaints about housing defects and conditions and about the landlord’s behaviors to the Town of Rowley’s building, health, police, and fire departments and enforcement officials. Justin Washington requested a property inspection by the building department on April 16, 2009. The current tenants complained to various municipal officials on May 18, 2009.

 

1. Illegalities

 

Town officials inspected the premises on May 21, 2009. By letter dated May 28, 2009, the Inspector of Buildings gave the landlord formal written notice that the living arrangement was in violation of the town’s zoning law, “Specifically, the existence of two or perhaps as many as three potential dwelling units contained within a permitted single family dwelling.” The Inspector ordered the landlord to “cease and desist from this unapproved use and file plans with this office for corrective construction by June 12, 2009.”

 

The living arrangement also amounted to an illicit, unlicensed lodging house in violation of Gen.L. c.140 §§22-32.

 

The landlord’s “Massachusetts Residential Use and Occupancy Agreement” is unlawful also in several other respects:

 

Paragraph 3.A “Delinquent Rent” imposes a $15 per day “late charge” for “delinquent rent” that is “not paid on the 1st” day of the month; but “If Landlord receives the monthly rent by the 3rd day of the month, Landlord will waive the late charges for that month.” Paragraph 23 “Late Charge” imposes an additional $90 “late fee” for rents that are not paid within 30 days of when due. The landlord charged and the tenants paid a $15 late fee under Paragraph 3.A on October 10, 2008. The landlord now seeks an award of cumulative late fees under both Paragraph 3.A and Paragraph 23. Paragraph 3.A is unlawful because Gen.L. c.186 §15B(1)(c) provides: “No lease or other rental agreement shall impose any interest or penalty for failure to pay rent until thirty days after such rent shall have been due.” The landlord is not entitled to keep the $15 late fee that the landlord imposed and the tenants paid on October 10, 2008. Moreover, the tenants cannot be charged late fees under either Paragraph 3.A or Paragraph 23 because, as explained below, they are entitled to withhold their rent.

 

Paragraph 4 “Last Month’s Rent” allows the Landlord at his discretion to “convert Last Month’s Rent to a Security Deposit for any damage caused to the Premises during the term.” Paragraph 4.B “Deductions” allows the Landlord to deduct for “Late charges” ¶4.B(2); “Costs of re-letting if Tenant is in default” ¶4.B(11); “Attorney fees and costs of court” ¶4.B(12); and “Other items Tenant

is responsible to pay” ¶4.B(14). These provisions violate the Security Deposit Law, Gen.L. c.186 §15B(1)(b),(d), (2)(b), (3)(a), and (4). However, it does not appear that the Landlord attempted to enforce these provisions as might trigger either single or treble damage liability under §15B(6)(c),(e), (7).

 

Paragraph 12 “Maintenance, Repair and Rules” shifts normal maintenance and repair obligations from the landlord to the tenant, in violation of law. See, Boston Housing Authority v. Hemingway, 363 Mass. 184, 199, 293 N.E.2d 831, 843 (1973) (implied warranty of habitability, at least insofar as it is based on the State Sanitary Code or other regulations, cannot be waived); Leardi v. Brown, 394 Mass. 151, 156-157, 474 N.E.2d 1094, 1099-1100 (1985) (lease provisions purporting to disclaim, waive, and limit rights under habitability doctrine and state sanitary code were impermissible, deceptive, and unconscionable).

 

Paragraph 14 “Access by Landlord” allows the Landlord to enter the Premises “without notice” and to “Seize nonexempt property after default” ¶14.F. In Massachusetts a landlord has no right of distraint in a tenant’s chattel property. See, Prescott F. Hall, Massachusetts Law of Landlord and Tenant (Adams & Wadsworth 4th ed. 1949), §238, p.268, citing Ex Parte Wait, 24 Mass. (7 Pick.) 100, 105 (1828); Potter v. Hall, 20 Mass. (3 Pick.) 368, 373 (1825). The “without notice” and “Seize nonexempt property after default” provisions violate the statutory covenant of quiet enjoyment, Gen.L. c.186 §14. See, Al-Ziab v. Mourgis, 424 Mass. 847, 679 N.E.2d 528 (1997).

 

Paragraph 20 “Quiet Enjoyment” conditions rights to quiet enjoyment “upon payment of all of the sums referred to herein as being payable by Tenant and Tenant’s performance of all Tenant’s agreements contained herein and Tenant’s observance of all rules and regulations.” The implied covenant of quiet enjoyment is statutory, Gen.L. c.186 §14, and cannot be so waived, altered, or conditioned. See, Al-Ziab v. Mourgis, 424 Mass. 847, 679 N.E.2d 528 (1997); Boston Housing Authority v. Hemingway, 363 Mass. 184, 199, 293 N.E.2d 831, 843 (1973); Leardi v. Brown, 394 Mass. 151, 156-157, 474 N.E.2d 1094, 1099-1100 (1985).

 

Paragraph 21 “Indemnification” denies the Landlord’s liability “for any damage or injury of or to the Tenant, Tenant’s family, guests, invitees, agents or employees or to any person entering the Premises” and requires the Tenant “to indemnify, defend and hold Landlord harmless from any and all claims or assertions of every kind and nature.” The provision is unlawful. See, Gen.L. c.186 §§15, 15E, 15F, 19. See, Leardi v. Brown, 394 Mass. 151, 474 N.E.2d 1094 (1985).

 

Paragraph 35 “Lead-Based Paint Disclosure” provides “The premises were constructed in 1991. Therefore, no forms are required.” The provision violates the Lead Poisoning Prevention and Control Law, Gen.L. c.111 §197A(d).

 

2. Rent

 

 

The landlord claims increased rent in the amount of $2,500 for the month of July 2009 under Paragraph 16 of the Agreement. He is not so entitled.

 

Paragraph 16 “Tenant’s Hold Over” provides that if the tenant holds over “in possession of the Premises with the consent of Landlord” after expiration the 11.5 month term “a new tenancy from month-to-month shall be created” with rent increased to $2,500 per month.

 

I assume without deciding that the provision in Paragraph 16 for a rent increase of 47% by $800 from $1,700 to $2,500 per month constitutes a provision for liquidated damages rather than a penalty. See, Cummings Properties, LLC v. National Communications Corp., 449 Mass. 490, 869 N.E.2d 617 (2007) (at least in the case of a commercial agreement between sophisticated parties, a contract provision reasonably establishing liquidated damages will be enforced so long as, at the time the contract was made, it is not so disproportionate to anticipated damages as to constitute a penalty); NPS, LLC v. Minihane, 451 Mass. 417, 886 N.E.2d 670 (2008) (same; in the case of an enforceable liquidated damages provision, mitigation of damages is irrelevant).

 

However, the landlord is not entitled to increased rent for the month of July 2009, for two reasons. First, it is clear that the landlord, who issued a notice to quit on May 7, 2009, and who continues to seek possession by this summary action, does not consent to the tenants’ continued occupancy. The landlord says that he meant to say “without the consent of Landlord” and not “with the consent of Landlord” when he wrote his “Massachusetts Residential Use and Occupancy Agreement.” But the landlord is bound by the term “with the consent” as contained in Paragraph 16.

 

Second, the landlord is bound by the written notice requirement in Paragraph ¶3.E “Rent Increases” which provides, “If this Use and Occupancy is renewed automatically on a month to month basis, Landlord may increase the rent during the renewal period by providing written notice to Tenant that becomes effective the month following the 30th day after the notice is provided.” At trial, the landlord reluctantly conceded that he provided no such written notice.

***

 

On May 2, 2009, the tenants paid the landlord $400. According to his spreadsheet exhibit the landlord apportioned $300 to utility costs and $100 to rent that was due on May 1, 2009. On May 7, 2009, the landlord had his constable serve a “14 Day Notice to Quit for Nonpayment of Rent” that was dated May 6, 2009. The landlord’s notice to quit claimed $1,300 rent plus $300 for shared utilities, which is not consistent with his spreadsheet apportionment.

 

Since May 2, 2009, the tenants have withheld all payments to the landlord.

 

Under Paragraph 11 of the Agreement the tenants were to pay the landlord $300 per month their estimated 50% share of heating oil,

electric, and cable utilities, which the landlord was to provide and pay for. Notwithstanding the Agreement the tenants paid the costs of cable service, but the $300 per month “estimate” was never formally changed to take this into account. For the 8.5 month period ending April 30, 2009, fifty percent of the landlord’s heating oil costs totaled $1,091.14; fifty percent of his electric utility costs totaled $529.59; fifty percent of the tenants’ cable costs totaled $86.25. The average fifty percent monthly costs were $128.37 for oil, $62.30 for electric, and $34.50 for cable; the net average monthly cost to the landlord was $156.17, a little more than half the $300.00 per month “estimate” stated in Paragraph 11 of the Agreement.

 

As of April 30, 2009, the landlord was due monies in the total amount of $17,770.72 ($1,700.00 for last month’s rent deposit, $14,450.00 for rent, $1,091.14 for shared heating oil, and $529.59 for shared electric utility costs). The tenants were entitled to credit for payments totaling $18,721.25 ($18,565.00 to the landlord, $86.25 for shared cable costs, and $70.00 for shared heating oil). The tenants had overpaid the landlord by $950.53 as of April 30, 2009. Another month’s rent became due on May 1, 2009, but when the landlord issued his “14 Day Notice to Quit for Nonpayment of Rent” on May 7, 2009, the amount withheld by the tenants was $749.47, not $1,600.00.

 

3. Heat

 

Problems with the heat arose as early as January 29, 2009. Under Paragraph 11 “Utilities” of the “Residential Use and Occupancy Agreement” the landlord was to provide and pay for heating oil that was furnished by Emerson’s Oil Service, Inc. and the tenants were to pay the landlord half those costs. However, the landlord did not perform his obligations, the heating furnace ran out of oil, and on January 29, 2009, it became necessary for the tenants to buy $140 worth of fuel oil from another supplier, Eaton Oil.

 

At trial on July 2, 2009, the landlord claimed (and offered a spreadsheet exhibit showing) that it was he who paid Eaton $165 for the oil delivery on January 29, 2009. But the landlord has no receipt or invoice; and the $165 amount which the landlord claimed he paid is more than the $140 amount shown by the tenants’ Eaton Oil “Pd CASH” invoice. Then at trial on July 9, 2009, the landlord claimed instead (and offered a changed spreadsheet exhibit showing) that he had reimbursed the tenants $140 for the oil delivered by Eaton. But the $140 amount would have been twice the amount of the landlord’s share. I find that neither of the landlord’s claims is true. I find instead that the tenants paid $140 to Eaton Oil on January 29, 2009; that the landlord paid nothing; and that the tenants are now entitled to reimbursement for half their $140 out-of-pocket heating oil expense.

 

***

 

On May 2, 2009, the landlord shut off the heat. The lack of heat adversely affected the tenants, but did not affect the landlord, who by that time had begun living at his friend’s house in Swampscott.

 

 

The tenants called the landlord on May 16, 2009, to complain that there was no heat (and also no hot water). The tenants complained to the municipal authorities on May 18, 2009.

 

The landlord claims that the tenant herself shut off the heat on May 16, 2009. He also claims that the tenant repeatedly turned the burner switch off and on, causing damage to the furnace and boiler. He seeks $125.00 reimbursement for “extra cleaning” and “extra service call” by Emerson Oil Service, Inc. on May 18, 2009. He also seeks $189.96 for “routine cleaning/service” on October 24, 2008.

 

The landlord’s denials that he turned off the heat (and his claim that the tenant did so) are flatly contradicted by his admissions that he made to the Rowley police. Police officer Matthew Ziev testified in court on July 23, 2009, credibly so, that he was called to the house at 9:30 p.m. on the evening of July 2, 2009; that the temperature inside the house was 60 degrees Fahrenheit; that he spoke with the tenant, who has four children ages 1, 7, 8 and 13, living with her, who stated that she had not had any heat in her residence since May 2, 2009, and that the landlord had shut off the heat in her residence. The officer then spoke with the landlord who stated that he had shut the heat off on May 2, 2009. The officer advised the landlord that he was risking a criminal charge under the “Wrongful Acts of a Landlord” law, especially given the weather over the recent month, and that he was in contempt of the court order, which states that utilities are not to be tampered with. The landlord’s testimony to the contrary is not credible.

 

The landlord’s shutting off the heat on May 2, 2009, was unlawful, as the State Sanitary Code, 105 C.M.R. §410.201, “Temperature Requirements” requires: “The owner shall provide heat in every habitable room and every room containing a toilet, shower, or bathtub to at least 68°F (20° C) between 7:00 A.M. and 11:00 P.M. and at least 64°F (17° C) between 11:01 P.M. and 6:59 A.M. every day other than during the period from June 15th to September 15th ….”

 

The Quiet Enjoyment Law, Gen.L. c.186 §14, “Wrongful acts of landlord; premises used for dwelling or residential purposes; utilities, services, quiet enjoyment; penalties; remedies; waiver” provides:

 

Any lessor or landlord of any building or part thereof occupied for dwelling purposes, other than a room or rooms in a hotel, but including a manufactured home or land therefor, who is required by law or by the express or implied terms of any contract or lease or tenancy at will to furnish water, hot water, heat, light, power, gas, elevator service, telephone service, janitor service or

refrigeration service to any occupant of such building or part

thereof, who willfully or intentionally fails to furnish such water, hot water, heat, light, power, gas, elevator service, telephone service, janitor service or refrigeration service at any time when the same is necessary to the proper or customary use of such building or part thereof, or any lessor or landlord who directly or indirectly interferes with the furnishing by another of such utilities or services, or who transfers the responsibility for payment for any utility services to the occupant without his knowledge or consent, or

any lessor or landlord who directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant, or who attempts to regain possession of such premises by force without benefit of judicial process, shall be punished by a fine of not less than twenty-five dollars nor more than three hundred dollars, or by imprisonment for not more than six months. Any person who commits any act in violation of this section shall also be liable for actual and consequential damages or three month’s rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee, all of which may be applied in setoff to or in recoupment against any claim for rent owed or owing. The superior and district courts shall have jurisdiction in equity to restrain violations of this section. The provisions of section eighteen of chapter one hundred and eighty-six and section two A of chapter two hundred and thirty-nine shall apply to any act taken as a reprisal against any person for reporting or proceeding against violations of this section. Any waiver of this provision in any lease or other rental agreement, except with respect to any restriction on the provision of a service specified in this section imposed by the United States or any agency thereof or the commonwealth or any agency or political subdivision thereof and not resulting from the acts or omissions of the landlord or lessor, and except for interruptions of any specified service during the time required to perform necessary repairs to apparatus necessary for the delivery of said service or interruptions resulting from natural causes beyond the control of the lessor or landlord, shall be void and unenforceable.

 

The tenants are entitled to triple rent damages of $5,100 under the Quiet Enjoyment Law, Gen.L. c.186 §14, for the landlord’s shutting off the heat on May 2, 2009.

 

Because the landlord shut off the heat in reprisal and retaliation against the tenants for the report and request for a property inspection that was made on their behalf by Justin Washington on April 16, 2009, the tenants are additionally entitled to single rent damages of $1,700 under the Retaliation Law, Gen.L. c.186 §18. See, Ianello v. Court Management Corp., 400 Mass. 321, 509 N.E.2d 1 (1987).

 

The landlord’s wrongful act also breached the implied warranty of habitability, but the habitability and quiet enjoyment damages are duplicative, and the evidence shows no amount of actual damages sustained by the tenants greater than three months’ rent.

 

The landlord is not entitled to $125.00 for “extra cleaning” and “extra service call” on May 18, 2009, or to $189.96 for “routine cleaning/service” on October 24, 2008.

 

4. Behaviors

 

After shutting off the heat on May 2, 2009, the landlord embarked on an almost continuous, months long campaign of intrusions, intimidation, and bullying behavior that he directed towards the tenants, towards the tenants’ children, and towards the tenants’ babysitter and guest, in an effort to force them out of the house.

 

 

As mentioned above, the tenants complained to the landlord on May 16, 2009, that there was no heat and no hot water, and they complained to municipal enforcement officials on May 18, 2009, about housing defects and conditions and about the landlord’s behaviors.

 

Town officials inspected the property on May 21, 2009, and by letter dated May 28, 2009, the Inspector of Buildings formally notified the landlord that the shared living arrangement was in violation of the zoning law, ordering that the landlord “cease and desist from this unapproved use and file plans with this office for corrective construction by June 12, 2009.”

 

On May 25, 2009, the tenant complained to the police about the landlord’s intrusions, and about his aggressive demeanor and intimidating behavior. On the next day, May 26, 2009, the tenant complained to the police about the landlord’s bullying behavior towards her 9 year old son, by facial glares, and by taking pictures of the child through the windows. On May 30, 2009, the tenants again complained to the landlord and then to the fire department about no heat and about defective heating equipment.

 

On June 11, 2009, I heard the landlord’s motion that he had filed on June 10, 2009, and issued an order requiring that the tenants allow the landlord access to the premises. The hearing was held and the order was issued in the tenant’s absence upon the landlord’s representation that he had given the tenants notice of the motion and of the hearing on June 6, 2009. However, the tenants had no such prior notice; the landlord’s representation that he had given notice was false.

 

On June 17, 2009, the tenant complained to the police about the landlord’s intrusions and that he put her and her 18 month old child in fear. When the police inquired that day, the landlord stated that because of the June 11, 2009, order “he is now a co-occupant of the home” and he adamantly stated that “he has every right to enter the dwelling when he wanted to because of the new order.”

 

On June 20, 2009, the tenant complained to the police about the landlord’s repeated bullying behavior towards the tenants’ 9 year old son, this time by whispering in the child’s ear while he was on the computer, despite the tenants’ prior demand (and the landlord’s agreement) that the landlord have “no contact” with the tenants’ children.

 

On June 25, 2009, on the tenants’ motion filed on June 17, 2009, for clarification of the June 11, 2009, order allowing the landlord access to the premises, a detailed stipulation was negotiated with the help of a housing specialist, which after a hearing I approved as a court order. Among other things, the stipulated order required the landlord to give advance notice of his arrivals; limited his arrivals and departures to between the hours of 6:00 a.m. and 12:00 midnight; limited his access once in the house to areas not occupied by the tenants; prohibited the parties from having unnecessary contact with each other; prohibited all contact with family members or guests; and provided that “No party shall disturb any utilities.”

 

 

On the afternoon of same day, June 25, 2009, the landlord violated the stipulated court order. He arrived at the house, without prior notice, and engaged in bullying behavior directed towards the tenants’ children. Because of the landlord’s conduct and continued presence, and because their parents were not then at home, the children, Andrea Bickford (13 years old), John Bickford (9 years old), Emily Bickford (7 years old), and Hannah Bickford (18 months old), found it necessary to lock themselves in a bedroom inside the house, for a period of from three to four hours until their parents returned home.

 

On the following day, June 26, 2009, the former tenant Justin Washington, who was a friend, babysitter and guest, visited the current tenants. The landlord ordered the tenants’ guest off the property and then sent him a certified letter threatening “criminal trespassing” charges if he returned.

 

On the evening of the first day of trial, July 2, 2009, the police responded to the tenants’ complaints that the landlord had intruded into the tenants’ living quarters and refused to leave, in violation of the court order of June 25, 2009. The landlord took the position that the stipulated order was no longer in effect because it stated “This agreement shall remain in force until the day of trial.” (As mentioned above, when the police arrived, the tenants complained about no heat, the temperature was then 60 degrees Fahrenheit, and the landlord admitted to the police officer that he had shut the heat off on May 2, 2009.)

 

At trial on July 2, 2009, and again on July 9, 2009, I informed the landlord that he had no right to interfere with the tenants’ rights to have guests. Nevertheless, on July 16, 2009, the landlord complained to the police, seeking to have charges pressed, that Justin Washington was visiting the tenants in violation of his “no trespass letter”; two days later on July 18, 2009, the landlord delivered to the police a copy of the “no trespass” letter.

 

On July 17, 2009, Janice Cheever’s adult son John Avagianos reported to the police that he was concerned about his mother’s safety because the landlord had called him and threatened “that if [he] was seen at #17 Dodge Rd. that he has the right to smash his head with a baseball bat if he so desired.” (Earlier, on June 24, 2009, or June 25, 2009, the landlord had accused John Avagianos of driving across the lawn with a truck and had forbidden him from coming onto the property.) The police spoke to the landlord who denied making any call. At trial the landlord submitted his mobile telephone record to show that he made no outgoing call on July 17, 2009, to the complainant’s telephone number identified in the police report. But the landlord’s telephone number identified in the police report is a number different from the landlord’s mobile telephone number. I make no finding whether the landlord in fact made the threat, as the accusation is serious, sharply disputed, supported only by hearsay evidence, and such a finding is not necessary to a decision in this case (which involves only the Bickfords).

 

On the afternoon of the same day, July 17, 2009, Janice Cheever and Melissa Bickford both filed motions returnable July 23, 2009,

seeking stay-away orders and other relief against the landlord.

 

On the following day, July 18, 2009, the landlord engaged the tenants in a confrontation at the post office. The police who investigated noted that according to the post office employees the landlord started the conflict.

 

On July 23, 2009, the tenants’ motions were heard, on a consolidated basis. Further, the trial of the instant case was re-opened, as the landlord had submitted on July 14, 2009, ex parte without notice to the tenants, a memorandum and additional exhibits. On July 23, 2009, police officer Matthew Ziev and the parties testified and submitted additional documentary evidence.

 

At the conclusion of the hearing on July 23, 2009, I ordered, with the landlord’s assent, that he stay away from the tenants, their children, and their guests, and from the subject premises at 27 Dodge Road, Rowley, pending further order.

 

***

 

The evidence in this case overwhelmingly shows that the landlord violated the tenants’ rights to quiet enjoyment. I credit the factual accuracy of the statements contained in the police reports, which, although factually disputed by the landlord, were received in evidence without hearsay or other objection as to admissibility. I also credit the truth of the tenants’ testimony, which in all material respects is consistent with the police records. The testimony of the landlord, on the other hand, which is in important respects contradictory, and in other respects evasive, is entitled to little credit and belief.

 

By his repeated intrusions, aggressive demeanor, intimidating behavior, and bullying conduct in May, June, and July 2009, towards the tenants, towards their children, and towards their guest, the landlord violated the tenants’ rights to quiet enjoyment in violation of the Quiet Enjoyment Law, Gen.L. c.186 §14.

 

Especially egregious was the landlord’s stalking behavior that he maliciously directed towards the tenants’ children. There can be no doubt in this case that, by his intrusions, intimidations, and bullying conduct, which lasted for months on an almost continual basis, the landlord caused the tenants serious and substantial injury in the peaceful enjoyment of their home.

 

I note that even apart from this most egregious conduct, the landlord’s expulsion of the tenants’ guest violated the tenants’ rights to quiet enjoyment. See, Aponte v. Brancic, Hampden Hsg.Ct. No. 02-CV-00087 (Fein, J., October 26, 2004). See also, State v. DeCoster, 653 A.2d 891, 893-894 (Me. 1995); Branish v. NHP Property Management, 694 A.2d 1106, 1107 (Pa..Super. 1997); Ashley Court Enterprises v. Whittaker, 249 N.J. Super. 552, 558, 592 A.2d 1228, 1231 (App.Div. 1991); Folgueras v. Hassle, 331 F. Supp. 615, 625 (W.D.Mich. 1971).

 

The landlord had no right to exclude the tenants’ guest from the

premises, and he certainly had no right to threaten charges of criminal trespass. See, Commonwealth v. Nelson, 74 Mass.App. 629, 909 N.E.2d 42 (2009) (tenants’ guest could not be could not be convicted of criminal trespass); Commonwealth v. Richardson, 313 Mass. 632, 48 N.E.2d 678, 146 ALR 648 (1943) (tenants’ invitees could not be excluded by landlord; Jehovah’s Witnesses who had been afforded the opportunity to enter by tenants over the landlord’s objection could not be convicted of criminal trespass). See also, Commonwealth v. Hood, 389 Mass. 581, 589, 452 N.E.2d 188, 194 (1983) (“A tenant has a right to admit any visitor”); Nyer v. Munoz-Mendoza, 385 Mass. 184, 430 N.E.2d 1214 (1982) (landlord’s prohibition of posting of signs by tenant intruded on tenant’s property rights). Accord, State v. Dixon, 169 Vt. 15, 18, 725 A.2d 920, 922-923 (1999) (an invited guest of tenant is a licensee, not a trespasser, and cannot be convicted of trespass; landlord may not prevent invitees or licensees of a tenant from entering the tenant’s premises through the common areas); Brown v. Kisner, 192 Miss. 746, 6 So.2d 611 (1942) (in banc) (tenant’s guest could not be convicted of criminal trespass; suit against manager for malicious prosecution of criminal trespass action upheld).

 

The tenants are entitled to triple rent damages of $5,100 under the Quiet Enjoyment Law, Gen.L. c.186 §14, for the landlord’s bullying behavior directed to the tenants, to the tenants’ children, and to the tenants’ guest. See, Simon v. Solomon, 385 Mass. 91, 99-104, 431 N.E.2d 556, 563-566 (1982); Cruz Management Co., Inc. v. Thomas, 417 Mass. 782, 788-790, 633 N.E.2d 390, 394-395 (1994); Al-Ziab v. Mourgis, 424 Mass. 847, 679 N.E.2d 528 (1997).

 

Because the landlord’s bullying conduct was in reprisal and retaliation against the tenants for their complaints about violations of law which they made to the municipal police, fire, health, and building departments and enforcement officials, the tenants are additionally entitled to single rent damages of $1,700 under the Retaliation Law, Gen.L. c.186 §18. See, Ianello v. Court Management Corp., 400 Mass. 321, 509 N.E.2d 1 (1987).

 

The landlord’s wrongful acts also constituted a contempt of the stipulated order issued on June 25, 2009. However, the contempt and quiet enjoyment damages are also duplicative, and the evidence shows no amount of actual damages sustained by the tenants greater than three months’ rent.

 

5. Conclusions

 

1. The landlord is entitled to $19,550 rents at $1,700 per month for 11.5 months from the beginning of the tenants’ occupancy on August 16, 2008, through July 31, 2009.

 

2. The landlord is not entitled to increased rent for July 2009.

 

3. The landlord is not entitled to the $15 “late fee” which the landlord imposed and the tenants paid on October 10, 2008.

 

4. The tenants are entitled to credit for $18,965 their total aggregate payments made to the landlord (which includes the tenants’

$1,700 last month’s rent deposit).

 

5. The landlord is entitled to $1,201.14 half the heating oil costs paid to Emerson’s Oil Service, Inc., as shown by his invoices in evidence.

 

6. The landlord is not entitled to $165 as claimed at trial on July 2, 2009, or to $140 as claimed at trial on July 9, 2009, for the heating oil that was provided by Eaton Oil at the tenants’ request on an emergency basis on January 29, 2009, for which the landlord did not pay.

 

7. The landlord is not entitled to $125 for “extra service call” on May 18, 2009, or to $189.96 for “routine cleaning/service” on October 24, 2008.

 

8. The tenants are entitled to $70 half the cost of heating fuel oil which they paid to Eaton Oil on an emergency basis on January 29, 2009.

 

9. The landlord is entitled to $647.28 half the electric utility costs paid to the Rowley Light Department as shown by the “payment summary” showing charges from September 3, 2008, to June 8, 2009. There is no support in the “payment summary” for charges of $129.32 for July 8, 2009, or of $84.69 for July 31, 2009, and the landlord does not provide other evidence substantiating his claim for those items.

 

10. The tenants are entitled to $189.75 half the “basic” TV and internet cable costs which they paid to Comcast at $69 per month for the 5.5 month period from February 17, 2009, through July 31, 2009.

 

11. I make no finding as to liability of the landlord (or of the tenants) for cable costs incurred earlier than February 17, 2009, which according to the parties were paid by the previous occupant Justin Washington.

 

12. The tenants are entitled to triple rent damages of $5,100 under the Quiet Enjoyment Law, Gen.L. c.186 §14, for the landlord’s shutting off heat on May 2, 2009.

 

13. The tenants are entitled to single rent damages of $1,700 under the Retaliation Law, Gen.L. c.186 §18, for the landlord’s reprisal and retaliation against the tenants because of the complaint and request for property inspection made to the building department on the tenants’ behalf by Justin Washington on April 16, 2009.

 

14. The tenants are entitled to triple rent damages of $5,100 under the Quiet Enjoyment Law, Gen.L. c.186 §14, for the landlord’s bullying behavior to the tenants, to their children, and to their guest, in May, June, and July 2009.

 

15. The tenants are entitled to single rent damages of $1,700 under the Retaliation Law, Gen.L. c.186 §18, for the landlord’s reprisal and retaliation against the tenants because of their complaints to municipal police, fire, health and building departments

and enforcement officials.

 

16. The landlord is not entitled to possession of the premises under Gen.L. c.239 §2A and §8A.

 

 

ORDER

 

1. Judgment shall enter on behalf of the tenants dismissing the landlord’s complaint and for money damages in the sum of $9,726.33.

 

2. Consistent with the Town of Rowley’s “cease and desist” zoning law enforcement order issued on May 28, 2009, the landlord may not resume occupancy at the 27 Dodge Road, Rowley, premises, for the duration of the tenants’ occupancy.

 

3. The order issued on July 23, 2009, shall remain in full force and effect. The landlord shall stay away, 100 yards at least, from the tenants, from the tenants’ children, and from their guests, and from the 27 Dodge Road, Rowley, premises, for the duration of the tenants’ occupancy.

 

4. The Clerk shall communicate this order to the Town of Rowley Police Department.

 

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

STANLEY J. SLEPOY, Plaintiff v. MELISSA J. BICKFORD, Defendant

 

NORTHEAST

 

 

Docket # No. 09-SP-01679

 

Parties: STANLEY J. SLEPOY, Plaintiff v. MELISSA J. BICKFORD, Defendant

 

Judge: /s/David D. Kerman

Associate Justice

 

Date: July 30, 2009

 

ORDER

The Clerk shall make the following pen and ink corrections to the Decision and Order issued on July 27, 2009:

 

Page 4 ¶2: the 11.5 [10.5] month term

 

Page 4 ¶4: this summary [process] action,

 

Page 5 ¶2: Another month’s rent became due on May 1, 2009, [the tenants paid $400 on May 2, 2009,] but when the landlord issued his “14 Day Notice to Quit for Nonpayment of Rent” on May 7, 2009, the amount withheld by the tenants was $749.47 [$349.47], not $1,600.00.

 

Page 8 ¶7: in the tenant’s [tenants’] absence

 

Page 9 ¶3: On the afternoon of [the] same day,

 

Page 11 ¶4: (tenants’ guest could not be could not be convicted

 

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

STANLEY J. SLEPOY, Plaintiff v. MELISSA J. BICKFORD, Defendant

 

NORTHEAST

 

 

Docket # No. 09-SP-01679

 

Parties: STANLEY J. SLEPOY, Plaintiff v. MELISSA J. BICKFORD, Defendant

 

Judge: /s/David D. Kerman

Associate Justice

 

Date: August 11, 2009

 

DECISION AND ORDER ON MOTION FOR NEW TRIAL AND NOTICE OF APPEAL

 

The plaintiff landlord in this matter timely moves for a new trial on grounds (1) that he was inadequately able to prosecute his case properly, (2) that he was unaware that the court had re-opened the trial and there was inadequate access to the additional evidence presented, (3) that the court allowed hearsay evidence to be introduced, (4) that his witness Donna Dion was not allowed to present testimony, (5) that he has new and significant evidence and testimony, (6) that the award of damages is excessive, and (7) that he was not afforded a jury trial. There is no merit to the motion.

 

1. Both parties in this matter were unrepresented by counsel. The plaintiff’s case did not suffer from inadequate presentation or inability on the part of the pro se plaintiff to prosecute his case properly. The plaintiff’s case did suffer from lack of merit.

 

2. The plaintiff was fully aware that the trial was re-opened on July 23, 2009. There was more than adequate access to the evidence presented, and the plaintiff did not request additional time to prepare. Re-opening the case for further evidence was required because the landlord had submitted on July 14, 2009, a post-trial memorandum with police report and photograph exhibits, all without leave of court or request for leave to do so, and all ex parte and without any notice at all to the defendants.

3. There was no objection to the hearsay evidence contained in the various police reports. Moreover, there was ample first-hand evidence by the defendant tenants and by a police officer who testified consistently with the police reports.

 

4. The plaintiff’s witness Donna Dion was not prevented from testifying. The plaintiff, after announcing that she was in court to give testimony, either neglected to call her as a witness, or elected not to do so.

 

5. The plaintiff’s motion identifies no “new and significant evidence and testimony” that might affect the result.

 

6. The statutory damages awarded under Gen.L. c.186 §14 and §18 are not excessive.

 

7. The plaintiff was not denied a trial by jury. The plaintiff,

who did not file a written jury demand, was not required to do so after the defendants filed their answer, counterclaim, and jury demand on June 3, 2009. However, the plaintiff’s motion filed on June 10, 2009, stated “The plaintiff requests an advanced trial for Thursday, June 18, 2009”; the plaintiff’s motion filed on June 17, 2009, requested a continuance until July 9, 2009; and the parties’ stipulation filed on June 25, 2009, stated that the trial would be held on July 2, 2009 -– all without any mention of a jury trial. Thereafter, the plaintiff and the defendants proceeded to and participated in a bench trial on July 2, 2009, on July 9, 2009, and on July 23, 2009 -– again without any objection or mention of a jury trial. The plaintiff is not entitled to a new trial before a jury now merely because he wishes to have one after an adverse result.

 

See, Keville v. McKeever, 42 Mass.App. 140, 147-148, 675 N.E.2d 417, 424 (1997)(transferees waived trial by jury by inaction until the morning of the first day of trial); Henderson v. D’Annolfo, 15 Mass.App. 413, 425 fn.16, 446 N.E.2d 103, 111 fn.16 (1983) (all parties waived claim of trial by jury contained in plaintiff’s complaint by not making any objection and by not calling the claim to the attention of the judge); Styrnbrough v. Cambridge Sav. Bank, 299 Mass. 22, 24, 11 N.E.2d 807, 808 (1937) (party waived right to trial by jury by going to trial before a judge without objection); Young v. Duncan, 218 Mass. 346, 348, 106 N.E. 1, 2 (1914) (plaintiff, who had a right to trial by jury, waived that right by proceeding to trial before a judge without objection and without insisting upon a trial by jury); Stevens v. McDonald, 173 Mass. 382, 53 N.E. 885 (1899) (defendant’s conduct in allowing case to be actually reached for trial without asking for a jury treated as a waiver of trial by jury); Walcott v. O’Connor, 163 Mass. 21, 39 N.E. 345 (1895) (defendant who duly claimed trial by jury waived that right by proceeding without objection to trial of the case by the court without a jury).

 

 

ORDER

 

The plaintiff’s motion filed on August 6, 2009, for a new trial and for other relief is in all respects denied.

 

The plaintiff’s appeal which he timely filed on August 6, 2009, is allowed, on condition in accordance with Gen.L. c.239 §5(b),(c), that he pay to the Clerk of this Court one hundred dollars cash as security pending the appeal, and on the condition that he docket, perfect and prosecute his appeal in the Appeals Court diligently and without delay.

 

 

 

 

 

 

End Of Decision