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Housing Court Cases – Judge Diana Horan, Worcester Division

HOUSING COURT

TOWN OF SOUTHBRIDGE v. EDWARD, GLORIA, JENNIFER and NICOLE WRIGHT

Worcester Division

 

 

Docket # No. 07-CV-00022

 

Parties: TOWN OF SOUTHBRIDGE v. EDWARD, GLORIA, JENNIFER and NICOLE WRIGHT

 

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

 

Date: January 18, 2007

 

RULING ON PLAINTIFF’S REQUEST FOR INJUNCTIVE RELIEF

 

This matter came before the Court on a Request for Injunctive Relief filed by the Town of Southbridge. Southbridge is seeking an order that the defendants (four adult family members) cease and desist from living in their passenger vehicle (van) within the town limits. Pursuant to Mass. R. Civ P. 65(b)(2) this matter was consolidated with a trial on the merits allowing the Court to consider the issuance of a permanent injunction in this matter.

 

Procedural History

 

On December 15, 2006 the Southbridge Board of Health conducted an inspection of the defendants’ (“The Wrights”) passenger vehicle after receiving complaints of illegal housing within the vehicle. An inspection that day found that the Wrights (mom, dad and adult daughters) were living inside the vehicle. There were mattresses,

food, clothing and even a portable toilet. In addition to the 4 adults, there is a german shepard and two cats living in the vehicle. As a result of this inspection an enforcement order issued on December 18, 2006 citing violations of several provisions of the State Sanitary Code. This

 

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order was upheld by the Board of Health on appeal.

 

The defendants have since moved their vehicle into another town, but challenge the authority of the Board of Health or the Town of Southbridge to regulate their living space in any fashion.

 

Relevant Regulations

 

The State Sanitary Code (105 CMR 410.00) provides for the Minimum Standards for Fitness for Human Habitation. In relevant part it states:

 

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 to facilitate the use of legal remedies available to occupants of substandard housing, to assist boards of health in their enforcement of this code and to provide a method of notifying interested parties of violations of conditions which require immediate attention.

 

410.002: Authority

 

105 CMR 410.000 is adopted under authority of M.G.L. c. 111, ss. 3 and 127A.

 

410.003: Citation

 

105 CMR 410.000 shall be known, and may be cited, as “105 CMR 410.000 State Sanitary Code Chapter II: Minimum Standards of Fitness for Human Habitation.” The short form of citation is “105 CMR 410.000 State Sanitary Code Chapter II.”

 

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410.010: Scope

 

(A) No person shall occupy as owner-occupant or let to another for occupancy and dwelling, dwelling unit, mobile dwelling unit, or rooming unit for the purpose of living, sleeping, cooking or eating therein, which does riot comply with the requirements of 105 CMR 410.000.

 

(B) The provisions of 105 CMR 410.000 shall not apply to any dwelling which:

(1) is located on a campground that is being operated in compliance with 105 CMR 420.000, 105 CMR 430.000, or 310

CMR 14.00; or

(2) is otherwise required to conform with standards of fitness for human habitation elsewhere existing in this code; or

(3) is used exclusively as a civil defense shelter.

 

(C) Nothing contained herein shall be construed to limit or

otherwise restrict any person from seeking judicial relief in

a court of competent jurisdiction not withstanding any hearing, proceeding or other administrative remedy set forth in these regulations.

 

410.430: Temporary Housing Allowed Only with the Board of Health Permission

 

No temporary housing may be used except with the written permission of the board of health

 

410.152: Privies and Chemical Toilets Prohibited: Exceptions

 

No privy or chemical toilet shall be constructed or continued in use; Provided, that the board of health may approve in writing the construction Or continued use of any privy or chemical toilet which it determines will not (a) endanger the health of any person; or (b) cause objectionable odors or other undue annoyance. When so approved, a privy or chemical toilet may, subject to written authorization of the board of health in accordance with 310 CMR 15.00, qualify as a toilet withing the requirements of 105 CMR 410.150(a) (see 105 CMR 410.840).

 

In no event may a privy be located within 30 feet of any building used for sleeping or eating, or of any lot line or street.

 

410.400: Minimum Square Footage

 

(A) Every dwelling unit shall contain at least 150 square feet of floor space for its first occupant, and at least 100 square feet of floor space for each additional occupant, the floor space to be calculated on the basis of total habitable room area.

 

(B) In a dwelling unit, every room occupied for sleeping

purposes by one occupant shall contain at least 70 square feet of floor space; every room occupied for sleeping purposes by more than one occupant shall contain at least 50 square feet of floor space for each occupant.

 

(C) In a rooming unit, every room occupied for sleeping purposes by one occupant shall contain at least 80 square feet of floor space; every room occupied for sleeping purposes by more than one occupant shall contain at least 60 square feet for each occupant.

 

410.043: Defines Temporary Housing as

 

 

means any tent, mobile dwelling unit, or other structure used for humans shelter, which is designed to be transportable and which is not attached to the ground, to another structure, or to any utility system on the same premises for more than thirty days.

 

Findings

 

The Wrights offered several arguments as to why the provisions of the State Sanitary Code should not apply to their living situation. They have been living in this vehicle for approximately two years. They are Native Americans rendered homeless when their “pow wow” bus was vandalized and set on fire. They have been dealing with the loss of the “pow wow” bus and their business and have been in constant battle with Southbridge officials (namely the Chief of Police) over what they deem to be harassment. They are quite vocal about their feelings and have posted placards on their vehicle

 

 

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denouncing the town and its officials. As Native Americans, they are a mobile people, and while they do not choose to be homeless, they choose to live in the vehicle. The Wrights argue that their vehicle does not fall under the jurisdiction of the State Sanitary Code as it is not a mobile home, only a passenger vehicle. At most, they argue that they are subject only to emission testing and the like. The Wrights have refused all assistance to find them alternative housing, including programs offered by this Court. They argue that this would contradict their need to remain mobile. Finally, they argue that it would be blatantly discriminatory against the homeless to allow the State Sanitary Code to be used in this fashion. The Wrights opine that all homeless are entitled to be left free of government restrictions to reside in their vehicle, tents, etc.

 

Southbridge argues that this passenger vehicle violates the State Sanitary Code on several levels. The Wrights have not obtained written permission from the Board of Health pursuant to 410.430. They have not received permission for their toilet from the Board of Health nor could they as it is used and stored inside the vehicle. 410.152 The vehicle fails to meet the minimum square footage requirements. 410.400 Finally the vehicle clearly falls under the definition of temporary housing 410.043

 

The Court is compelled to find in favor of Southbridge. Specifically where individuals by choice live in their vehicle (here for two years) and refuse assistance for alternative housing. Southbridge and this Court have the authority to impose the Minimum Standards for Fitness for Human Habitation. As such the Wrights are permanently enjoined from living in their vehicle within the Town of Southbridge.

 

 

 

 

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End Of Decision

 

HOUSING COURT

NELSON WONG v. CINDY FRANCIS and GARY RUSSELL

 

Worcester Division

 

Docket # 07-SP 00185

Parties: NELSON WONG v. CINDY FRANCIS and GARY RUSSELL

Judge: /s/DIANA H. HORAN, First Justice

Date: February 5, 2007

FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

 

The plaintiff put forth a prima facie case for possession and rent of $2,800 through February 2007. Rent of $700 has not been paid since before September 2006.

 

The defendant states that there is a leak in his apartment that has not been repaired satisfactorily. It has existed since September 2006. This is a breach of the implied warranty of habitability entitling the defendant to a 10% reduction in the monthly rent since September or $420 total (6 months X $70).

 

Pursuant to M.G.L.c. 239 s. 8A the defendants shall have 7 days from receipt of this decision to pay $2,380 into Court by bank check, money order or cash. If such is done, judgment for possession shall enter for the defendants. If such is not done, judgment shall issue for the plaintiff for possession and $2,380 plus costs through February 2007.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

MICHAEL JOUBERT v. JESSICA MADISON

 

Worcester Division

 

Docket # 07-SP-00268

Parties: MICHAEL JOUBERT v. JESSICA MADISON

Judge: /s/DIANA H. HORAN, First Justice

Date: February 23, 2007

FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

 

The plaintiff put forth a prima facie case for possession and rent of $5,840 through February 2007. A valid Notice to Quit was served. The monthly rent is $800.

 

The defendant testified to several code violations, all of which were confirmed in an inspection by the Chief Housing Specialist. These conditions (see attached report) in the totality result in an inference with the defendant’s quiet enjoyment pursuant to M.G.L.c. 186 s. 14 for which statutory damages of three times the monthly rent ($2400) is appropriate.

 

Pursuant to M.G.L.c. 239 s.8A the defendant shall have 7 days from receipt of this decision to pay $3,440 into Court by bank check, money order or cash. If such is done judgment shall enter for the defendant for possession. If such is not done judgment shall enter for the plaintiff for possession and re of $3,440 plus costs.

 

 

 

[Attachment]

 

Memo

 

Date: February 21, 2007

 

To: Judge Diana H. Horan

Fr: Michael O’Mara

Re: 07-SP-268, 269, 270 12 Claremont Street, Worcester

 

An inspection of the above captioned premise was conducted on February 20, 2007 to determine if there were any violations of 105 CMR 410:000 Minimum Standards of Fitness for Human Habitation.

 

This inspection revealed the following:

 

Exterior and Common Areas

 

(1) 410:500 Front entry door to dwelling not secured to building, frame pulling away from building opening and there are no handles or locksets.

 

(2) 410:500 Plaster in front hall cracked and broken in areas.

 

(3) 410:351 Smoke detectors in front hall not connected to base.

 

(4) 410:500 Rear entrance stairway has cracked and broken treads.

 

(5) 410:500 Rear entry door has broken glass panes.

 

(6) 410:500 Rear hall plaster is broken and missing in sections.

 

 

(7) 410:351 Light fixture missing in rear hall 1st floor level exposing electrical wiring.

 

(8) 410:600 Garbage and rubbish is strewn about rear hall 2″ and 3rd floor level.

 

(9) 410:500 Rear hall 3″ floor level has exposed insulation and batts are hanging from ceiling.

 

First floor apartment vacant and unsecured. Apartment is strewn with rubbish and debris.

 

Second floor apartment

 

(10) 410:501 Windows throughout apartment are not weathertite, glass broken and missing in areas, sashes do not stay in locked position, new replacement windows are not trimmed out with moulding.

 

(11) 410:351 Electrical plugs and switches throughout apartment do not have plates exposing wiring.

 

(12) 410:500 Door to front room missing panel.

 

(13) 410:500 Middle room right side has holes in plaster walls

 

(14) 410:500 Kitchen ceiling is water stained and has several missing panels.

 

(15) 410:351 Stove in kitchen has defective burners, will not light.

 

(16) 410:351 Light fixture missing from pantry ceiling exposing wiring.

 

(17) 410:351 Toilet in bathroom does not flush properly.

 

(18) 410:351 Bathroom sink drain partially stopped water does not drain properly.

 

(19) 410:351 No hot water in bathtub.

 

(20) 410:351 Bathtub rusted and caulking between tub and surrounding surfaces must be replaced.

 

(21) 410:351 Sink base in bathroom not secured to wall.

 

(22) 410:482 Smoke detector has been removed from base and there is no carbon monoxide detector.

 

(23) 410:500 Front entry door to apartment is off hinges, door is broken and cracked and hardware and locks are not secured properly.

 

No entry to third floor dwelling unit.

 

 

 

 

End Of Decision

 

HOUSING COURT

ROBINAH NANTALE v. BARBARA REIS

 

Worcester Division

 

Docket # 07-SP-01522

Parties: ROBINAH NANTALE v. BARBARA REIS

Judge: /s/DIANA H. HORAN, First Justice

Date: June 20, 2007

FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

 

The plaintiff put forth a prima facie case for possession and rent of $2,700 through June 2007. The monthly rent is $900. The defendant owes rent for April, May and June 2007.

 

The defendant testified about numerous code violations within the unit and common areas. These were confirmed in an inspection done by the Housing Specialist Department on May 25, 2007 and listed in the attached report.[1]

 

These conditions result in an interference with quiet enjoyment entitling the defendant to three times the monthly rent or $2,700. M.G.L.c. 186 s.14.

 

Judgement for the defendant for possession and $2,700. Any money being held in escrow shall be released to the defendant.

 

 

 

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[1] The trial commenced on May 24, 2007, and then suspended for the Housing Specialist Department to conduct an inspection. The parties subsequently waived further hearing.

 

[Attachment]

 

Memo

 

 

Date: June 1, 2007

 

To: Judge Diana H. Horan

Fr: Michael O’Mara

Re: 07-SP-1522 66 Waverly Street, Worcester

 

An inspection of the above captioned premise was conducted by the Housing Specialist Department on May 25, 2007 to determine if there were any violations of 105 CMR 410:000 Minimum Standards of Fitness for Human Habitation.

 

This inspection revealed the following: Exterior and Common Areas

(1) 410:351 Main plumbing stack for building broken in cellar. Evidence of raw sewage throughout cellar area.

 

(2) 410:602 Rubbish and debris in rear hallway second floor level.

 

(3) 410:501 Casement window in front hallway second floor level will not close. Hardware defective.

 

(4) 410:351 Light fixture in front hall second floor level missing bulb. Tenant reports fixture is defective.

 

(5) 410:500 Hardwood flooring at base of stairway on first floor level broken and lifting creating a trip hazard.

 

(6) 410:351 Electrical outlet in front hallway first floor level missing cover.

 

(7) 410:351 Light on front entry stairs defective, switch missing.

 

(8) 410:500 Asphalt siding on left rear corner of building broken and missing.

 

(9) 410:602 Rubbish debris and branches piled throughout rear yard.

 

(10) 410:351 Cable and phone wire at left rear of building pulled away from house and lying on ground.

 

(11) 410:351 Vent on left side of house second floor level missing cover.

 

(12) 410:501 Hallway window at left side of house has broken loose and cracked glass that is in danger of falling.

 

Second floor level interior

 

(13) 410:351 Vent on kitchen gas and gas stove not connected properly to chimney.

 

(14) 410:500 Tile broken and missing in sections on pantry floor.

 

(15) 410:500 Drawer front on base cabinet in pantry missing and

several drawers off track.

 

(16) 410:351 Cover missing on electrical switch box in bathroom.

 

(17) 410:351 Drain under bathroom washbasin leaking.

 

(18) 410:351 Covers missing on electrical wall outlets in living room.

 

(19) 410:500 Sheet rock wall in front bedroom left side displays holes.

 

(20) 410:351 Cover panel missing on recessed light fixture in front bedroom left side.

 

(21) 410:351 Switch for recessed lighting in front bedroom left side defective.

 

 

 

End Of Decision

 

HOUSING COURT

WOODS GROVE REALTY v. NANCY SAVASTA and DOROTHY BOLER

 

Worcester Division

 

Docket # 07-SP-02044

Parties: WOODS GROVE REALTY v. NANCY SAVASTA and DOROTHY BOLER

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

Date: June 26, 2007

FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

 

The plaintiff put forth a prima facie case for possession. A valid 30 day Notice to Quit was served. No rent is due.

 

The defendant presented evidence that the plaintiff served the Notice to Quit in retaliation for the plaintiff enforcing her right to additional child support in the Probate Court. While this allegation appears to ring true, it is not a protected act under M.G.L. c. 186 s. 18 as her action did not relate to her housing.

 

Judgment for the plaintiff for possession.

 

Pursuant to M.G.L. c. 239 s. 9 issuance of the execution is stayed until December 31, 2007.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

BENICIO ROSADO v. AMY BONILLA

 

Worcester Division

 

Docket # No. 07-SP-01711

Parties: BENICIO ROSADO v. AMY BONILLA

Judge: DIANA H. HORAN, first Justice

Date: June 4, 2007

FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

 

The plaintiff has put forth a prima facie case for possession and rent of $3,000 through May 31, 2007. A valid Notice to Quit was served. The monthly rent is $750.

 

The defendant stated that she is not paying rent due to conditions in the unit. Board of Health reports dated November 13 2006, January 31, 2007 and May 11, 2007 support the testimony. The plaintiff testified that all of the repairs contained in the May 11, 2007 order have been repaired. The Board of Health inspector reported that none of the violations have been repaired as of the day of trial.

 

These conditions are a violation of the implied warranty of habitability resulting in a 25% reduction in the value of the unit or $750.

 

 

Pursuant to M.G.L.c. 239 s. 8A the defendant shall have 7 days from receipt of this decision to pay $2,250 into Court by cash or bank check or money order made out to the plaintiff. If such is done, judgment for possession shall enter for the defendant. If such is not done, judgment shall enter for the plaintiff for possession and 2,250.00 plus costs.

 

 

 

 

 

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End Of Decision

 

HOUSING COURT

JOSEPH S. BUSCONE as President and Trustee of Sherwood Park Apartments Realty Trust v. MARK L. MILLER and CAROL MILLER,

 

 

Worcester Division

 

Docket # No. 07-SP-01714

Parties: JOSEPH S. BUSCONE as President and Trustee of Sherwood Park Apartments Realty Trust v. MARK L. MILLER and CAROL MILLER,

Judge: /s/DIANA H. HORAN, First Justice

Date: May 25, 2007

FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

 

The plaintiff put forth a prima facie case for possession. No rent is currently due. There were several contradictory Notice to Quit letter sent within the last 12 months. The controlling letter seems to be dated October 30, 2006 in which the plaintiff states that the lease will not be renewed and that the defendants must move out by January 31, 2007.

 

The defendants have lived at this property since February 2000 pursuant to a Section 8 Housing Choice Voucher under a self renewing lease. The lease provides that it will automatically extend unless some affirmative action is taken by either party.

 

While the October 30 Notice to Quit did not provide a reason for the plaintiff not wanting to renew the lease, much time during trial was spent discussing these reasons. They include late payment of rent, and disruptive behavior at the pool area.[1] Their right to use the pool was terminated by letter on July 13, 2006.

 

 

 

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[1] This included allegations of the son taking pictures of girls at the pool, using foul language and dad touching the lifeguards on their arms and legs.

 

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The defendant argues that there was an agreement that rent could be 10 days late. While this is questionable, the defendants were more than 10 days late with rent on at least one occasion.

 

More important the defendants argue that the plaintiff has discriminated against them pursuant to 42 U.S.C. s. 3604(f)(3)(B), 29U.S.C. s. 793 and M.G.L.c. 151B s.4, (4),(5),(7),(7A), and (7B). The defendants contend that two members of their family (dad and son) are disabled and that the plaintiff has failed to afford them a reasonable accommodation when they requested one on October 11, 2006.[2]

 

The plaintiff argues that it has an obligation as an employer to take action when it receives complaints in anyway related to sexual harassment M.G.L.c. 151B s. 1. While the complaints of the lifeguards were not documented in writing, it is clear that the complex was responding to verbal complaints from the lifeguards.

 

 

The defendants’ son, is currently in a residential facility in order to address his particular needs. The remaining family members wish to remain in this unit. They have asserted additional counterclaims including interference with quiet enjoyment and M.G.L.c. 93A. These counterclaims revolve around the contention that since they were deprived of use of the pool, without a court order, they were inconvenienced for the remainder of the summer of 2006. The Court finds that the plaintiff did not interfere with the defendants quiet enjoyment or M.G.L.c. 93A because there is no legal requirement to obtain a Court Order. While the correspondence from the plaintiff was severely backing in detail about the reasons for its decision, it is clear that they have the right to deny access to the pool for good cause. (Pool Rules and Regulations)

 

It is clear that the plaintiff was reacting (perhaps rashly) to a situation occurring at the pool area. This Court can not however overlook the requirements found in M.G.L.c. 151B s. 4(7A) to provide reasonable accommodation in its rules, policies and practices.

 

The Court therefore is taking the extraordinary step of defining its own reasonable accommodation measures that the parties will need to abide by for the next six months. These include:

 

1. The plaintiff shall allow the defendants to use the pool in accordance with its Rules and Regulations provided that Mark Miller have no contact with any of the lifeguards, or other visitors at the pooL All of the defendants, their children/and visitors, shall refrain from any foul language and picture taking around the pool area and the other common areas in the complex

 

 

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[2] The defendant did not specify what accommodation he sought.

 

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2. The defendants shall pay their rent within 5 days of its due date. No exceptions.

 

3. The defendants shall cooperate with this Court through its Tenancy Preservation Project representative. They shall meet with her and provide any information this court deems necessary to monitor this probationary period.

 

 

If the parties comply with the above conditions judgment shall enter for the defendants on November 30, 2007. If there is any violation of the above conditions the parties (or TPP) may bring this matter before the Court by motion, for entry of judgment sooner.

 

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

ARLENIS SANTOS v. KATHLEEN BALL and RICHARD BUNKER

 

Worcester Division

 

Docket # No. 07-SP-01247

Parties: ARLENIS SANTOS v. KATHLEEN BALL and RICHARD BUNKER

Judge: /s/DIANA H. HORAN

Date: May 1, 2007

FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

 

The plaintiff put forth a prima facie case for possession and rent of $1,425 through April 2007. The monthly rent is $475.

 

The defendants state that they did not pay rent due to conditions in the unit. The plaintiff states that she became aware of the conditions when she was notified by the Board of Health on March 28, 2007. Most of the repairs have been completed.

 

The conditions are a breach of the implied warranty of habitability entitling the defendants to have a 20% reduction in rent for the month of April or $95.00.

 

Pursuant to M.G.L.c239 s. 8A the defendants shall have 7 days from receipt of this decision to pay $1,330 into Court by bank check cash or money order. If such is done the judgment for possession shall enter for the defendants. If such is not done then judgment shall enter for the plaintiff for possession and rent of $1,330 through April 2007 plus costs.

 

 

 

 

End Of Decision

 

HOUSING COURT

PHILIP SALERNO v. JOSEPH BELANGER and LINDA LAFLOWER

 

 

Worcester Division

 

Docket # No. 07-SP-01122

Parties: PHILIP SALERNO v. JOSEPH BELANGER and LINDA LAFLOWER

Judge: /s/DIANA H. HORAN

Date: May 10, 2007

FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

 

The plaintiff put forth a prima facie case for possession and rent of $1,700 through May 2007. The rent is due on the 3`d and is $625.

 

The defendant, LaFlower, testified that she had a car accident and therefore has not had the money to pay the rent. She also alleged claims of retaliation, discrimination, and code violations. None of the allegations were supported by the evidence.

 

Judgment for the plaintiff for possession and rent of $1,700 through May 2007 plus costs.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

ESTHER COLON and ELIS REYES v. CRYSTALYNE SAVASTA

 

Worcester Division

 

Docket # No. 07-SP-01507

Parties: ESTHER COLON and ELIS REYES v. CRYSTALYNE SAVASTA

Judge: /s/DIANA H. HORAN, First Justice

Date: May 18, 2007

FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

 

The plaintiff put forth a prima facie case for possession and rent of $6,300 through May 17, 2007. The monthly rent is $1,050 due in biweekly payments.

 

The defendants testified that there are numerous code violations in the unit. The Court has taken judicial notice of case # 07-CV-0066 in which the plaintiff was ordered to make repairs. The plaintiff admits that most of these repairs have not been done. These conditions are a breach of the implied warranty of habitability and reduce the value of this unit by 50% or $3,150.

 

Pursuant to M.G.L.c. 239 s. 8A the defendants shall have 7 days from receipt of this decision to pay $3,150 into Court by bank check, money order or cash payable to the plaintiff. If such is done judgment shall enter for the defendants for possession. If such is not done judgment shall enter for the plaintiff for possession and rent of $3,150 plus costs.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

BRUCE GALLANT, Plaintiff v. ANGELICA MELENDEZ and PETER FLORES, Defendants

 

Worcester Division

 

Docket # 07-SP-02583

Parties: BRUCE GALLANT, Plaintiff v. ANGELICA MELENDEZ and PETER FLORES, Defendants

Judge: /s/ DIANA H. HORAN, First Justice

Date: August 6, 2007

FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

 

The plaintiff put forth a prima facie case for possession and rent of $3,000 through August 2007. A valid Notice to Quit was served.

The defendants state that they are refusing to pay rent because of damages in the apartment. Board of Health reports support the facts that there were and are damages to the apartment as the result of a roof leak. In addition, the apartment has been cited for lead paint violations and the defendant’s child has an elevated blood lead level. These conditions are a breach of the implied warranty of habitability entitling the defendants to an abatement of the rent by one third for the affected time period.

Pursuant to M.G.L. c 239 s. 8A the defendants shall have 7 days from receipt of this decision to pay $2,000 into Court by bank check or money order (made out to the plaintiff) or by cash. If such is done, judgment shall enter for the defendants for possession. If such is not done, judgment shall enter for the plaintiff for possession and rent of $2,000 plus

costs.

 

 

 

 

DATE MAILED: 08-08-2007

DATE PRESUMED RECEIPT: 08-11-2007

DATE DUE: 08-20-2007

 

 

 

End Of Decision

 

HOUSING COURT

FRANK SUPRICE v. ROBERT PERHAM

 

Worcester Division

 

Docket # 07-SP-03059

Parties: FRANK SUPRICE v. ROBERT PERHAM

Judge: /s/DIANA H. HORAN, First Justice

Date: September 12, 2007

FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

 

The plaintiff put forth a prima facie case for possession and rent of $4,500 through August 2007. The monthly rent is $900.

 

The defendant presented evidence to show that the amount of rent at issue is actually $4,100 as the defendant had paid $400 which was not credited. As this matter is now being decided in September $900 will be added as rent due for a total of $5,000.

 

The defendant stated that he has not been paying rent due to conditions in the unit. An inspection by the Housing Specialist Department found several violations of the State Sanitary Code. These conditions result in an interference with quiet enjoyment entitling the defendant to statutory damages of three times the monthly rent or $2,700 M.G.L.c. 186 s. 14.

 

Pursuant to M.G.L.c 239 s.8A judgment for possession shall enter for the defendant. Any money held in escrow ($2,300) shall be released to the plaintiff.[1]

 

 

 

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[1] The defendant deposited $2,300 with the Court prior to Housing Specialist Departments inspection. Amount of rent due through September 2007 is $5,000 – $2,700 credit to defendant = $2,300.

 

 

 

End Of Decision

 

HOUSING COURT

FRUIT SEVER ASSOCIATES, v. HELEN E. BAGLEY, Defendant

 

 

Worcester, ss.

 

Docket # No. 08-SP-2568

Parties: FRUIT SEVER ASSOCIATES, v. HELEN E. BAGLEY, Defendant

Judge: /s/DIANA H. HORAN

FIRST JUSTICE

Date: August 4, 2008

FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

The plaintiff put forth a prima facie case for possession. A 30 day Notice to Quit for cause was properly served.

The defendant resides at the property pursuant to a lease. She has lived there for several years. The defendant has an 8 year old son who has autism. During the last several months there has been many disturbances involving both the defendant and her son. Testimony at trial presented by residents and management illustrated a situation whereby the child is consistently disturbing the quiet enjoyment of the other tenants through his constant screaming and yelling. If this were the only issue, the defendant would be entitled to argue for a reasonable accommodation of some kind.

It is not the only issue however. It is clear from the testimony presented at trial, that the defendants’ own behavior is inappropriate. There is screaming and yelling (frequently swearing) at other tenants and, most concerning, their children. The defendant loses her temper and her actions have caused other occupants to fear for their well being. The situation can no longer be tolerated.

Judgment for the plaintiff for possession.

 

 

 

 

End Of Decision

 

HOUSING COURT

PONCE AND TERRY HOUATCHANTHARA v. SCOTT ERRINGTON and LEAH DIVER

 

 

Worcester, ss.

 

Docket # No. 08-SP-2171

Parties: PONCE AND TERRY HOUATCHANTHARA v. SCOTT ERRINGTON and LEAH DIVER

Judge: /s/DIANA H. HORAN

First Justice

Date: August 1, 2008

FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

The plaintiff has put forth a prima facie case for possession and rent of $2,100 through August 19, 2008. The monthly rent of $700 is due on the 20th of the month and the defendants have not paid May, June or July. A valid Notice to Quit was served on May 21, 2008.

The defendants have asserted defenses and counterclaims which need to be considered by the Court. This is a two family home with one unit occupied by the defendants and one unit currently vacant. There are several code violations present at the property confirmed both by a Board of Health report dated June 4, 2008 and by a Court appointed inspection on July 29, 2008. While there are eleven recorded violations noted in the July 29 report the ones of most concern to the Court are, cross metering, improper ceiling height and an improper egress. These same violations were noted in the Board of Health report of June 4 and the defendants answer and counterclaim filed on June 20, 2008. To date, the plaintiffs have made no repairs. In fact the plaintiffs testified that they rarely visit the property and they have not even had the lawn cut since some time in May. The plaintiffs testified that they did not want to visit the property

because of harassment from the defendants. While this may ring true it does not relieve the plaintiffs of their obligations as landlords to maintain and repair the property.

Furthermore, the three most serious violations noted above have existed since before the defendants moved in (March 08). Therefore the plaintiffs are charged with presumed knowledge of these defects.

 

– 1-

 

These conditions in combination are a violation of M.G.L.c. 186 s.14 entitling the defendants to statutory damages of three times the monthly rent plus an attorney’s fee. In addition this is a violation of M.G.L.c. 93A entitling the defendants to statutory damages of $25 plus an attorney’s fee.

Pursuant to M.G.L.c. 239 s. 8A judgment shall enter for the defendants for possession and $25 plus a reasonable attorneys fee upon the filing of a motion.

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

ALLEN STREET HOLDING, LLC v. DENNIS LAPIERRE

 

Worcester, ss.

 

Docket # No. 08-SP – 1771

Parties: ALLEN STREET HOLDING, LLC v. DENNIS LAPIERRE

Judge: /s/DIANA H. HORAN

FIRST JUSTICE

Date: July 30, 2008

FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

The plaintiff put forth a prima facie case for $1800 in rent. The defendant vacated the unit during the first week of June 2008. The monthly rent is $600 and the defendant did not pay rent for April, May or June.

The defendant filed an answer and counterclaim asserting several defenses. The defendant alleges that the Notice To Quit served by the plaintiff on February 29, 2008 was in violation of M.G.L.c. 186 s. 18 as the defendant had called the Board of Health in January. The Court finds that the plaintiff offered a valid reason for the issuance of the Notice to Quit that was independent of the Board of Health action.

The defendant further alleged that he was caused to suffer from inadequate heat in his unit. The testimony showed that there is electric baseboard heat in the unit and that there are no baseboards in the kitchen or the bathroom. While there is some debate at the Board of Health as to whether this is a code violation, it is clear that this situation caused an interference with the defendant’s quiet enjoyment of his unit. This violation of M.G.L.c. 186 s. 14 entitling the defendant to statutory damages of three times the monthly rent or $1,800 plus an attorney’s fee.

Pursuant to M.G.L.c. 239 s.8A judgment shall enter for the defendant for a reasonable attorneys fee up ‘I filing of a motion and affidavit.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

MEREDITH MANAGEMENT CORPORATION v. LYNN HOWARD

 

Worcester, ss.

 

Docket # No. 08-SP – 02133

Parties: MEREDITH MANAGEMENT CORPORATION v. LYNN HOWARD

Judge: /s/DIANA H. HORAN

FIRST JUSTICE

Date: July 15, 2008

FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

The plaintiff put forth a prima facie case for possession and rent. A valid Notice to Quit was served. The defendants monthly rent is $435 and she currently owes $905 through July 2008. The defendant and her family have lived at this property for 14 years.

The defendant testified that her stove has been off and on for several months and her oven was recently not working. Documents support the fact that the defendant has complained about problems with her stove since last April 2008. The plaintiff has inspected the stove and found no problem, however it appears to have been an intermittent problem in that it would not remain on for long periods. This condition is a breach of the implied warranty of habitability entitling the defendant to a reduction in the monthly rent of 25% since April 1, 2008 through July 2008 or $435 ($108.75 X 4).

Pursuant to M.G.L.c. 239 s. 8A the defendant shall have 7 days from receipt of this decision to pay $470 into Court by bank check or money order made out to the plaintiff. If such is done, judgment for

possession shall enter for the defendant. If such is not done judgment shall enter for the Plaintiff for 470 .Ius costs and possession.

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

MAUREEN F. SAPPETT v. CHARLENE NIMTZ, RICHARD AUDETTE

 

Worcester, ss.

 

Docket # No. 08-SP – 02176

Parties: MAUREEN F. SAPPETT v. CHARLENE NIMTZ, RICHARD AUDETTE

Judge: /s/DIANA H. HORAN

FIRST JUSTICE

Date: July 7, 2008

FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

The plaintiff has put forth a prima facie case for possession and rent of $3,100 through July 2008. A valid Notice to Quit was served.

The defendant testified that two outlets in her apartment were malfunctioning and that her bathroom sink was leaking. The plaintiff testified that she knew of these issues but could not gain access to the unit. If this was the case, the plaintiff could have sought judicial assistance. However, these conditions do not rise to the level of a breach of the implied warranty of habitability.

Judgment for the plaintiff for possession and rent of $3,100 through July 2008 plus costs.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

MATTHEW BIUSO v. ROBYN ROSENSON

 

Worcester, ss.

 

Docket # No. 08-SP – 02262 No. 08-CV-00252

Parties: MATTHEW BIUSO v. ROBYN ROSENSON

Judge: /s/DIANA H. HORAN

First Justice

Date: July 7, 2008

FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

The plaintiff has put forth a prima facie case for possession. A valid 60 day Notice to Quit was served.

The plaintiff initiated this summary process action due to the defendant’s constant interference with his quiet enjoyment and that of the other tenants in the building. The defendant’s tenancy has been mired in persistent (and lengthy) phone calls, text messages and knocking on the plaintiffs door. Many of these communications are threatening, harassing or menacing. Despite a preliminary injunction issued by this Court on April 7, 2007, the defendant’s behavior has continued.

 

Judgment for the plaintiff for possession.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

EMPIRE MANAGEMENT, INC. v. KEVIN NALLY and MEGAN TRAINOR

 

Worcester, ss.

 

Docket # No. 08-SP – 01536

Parties: EMPIRE MANAGEMENT, INC. v. KEVIN NALLY and MEGAN TRAINOR

Judge: /s/DIANA H. HORAN

FIRST JUSTICE

Date: June 12, 2008

FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

The plaintiff put forth a prima facie case for possession and rent of $2,400 through May 2008. The monthly rent is $800. Kevin Nally should be added as a defendant.

The defendants testified to numerous conditions within the unit and common areas. The inspection by the Housing Specialist Department on May 27, 2008 found the following:

 

1. One of the front entry doors to the apartment building does not lock.

2. Carpets throughout the common areas of this building need cleaning.

 

Unit 54

3. Hot water faucet in bathroom does not work.

4. Cabinet door in kitchen is broken.

5. Several windows in apartment do not open and close properly.

6. One window pane is cracked and needs repair.

7. One window is not tight fitting.

8. Entry door to apartment is loose and not tight fitting.

9. Thermostat in hallway is broken.

10. Baseboard heating pipe in living room is leaking.

 

These conditions are a breach of the implied warranty of habitability entitling the defendants to a 25% reduction in the monthly rent since March 1, 2008 or $600 total.

 

– 1-

 

Pursuant to M.G.L.c. 239 s.8A the defendants shall have 7 days from receipt of this decision to pay $1,800 into Court by cash or bank check/money order made out to the plaintiff. If such is done judgment for possession shall enter for the defendants. If such is not done judgment shall issue for the plaintiff for possession and rent of $1,800 plus costs.

If judgment enters for the defendants the monthly rent shall be set at $600 until the month after the month in which the repairs are completed.

 

 

 

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End Of Decision

 

HOUSING COURT

BENICIO ROSADO v. VANESSA ROBERTO and RAVIN JANOUSEK

 

 

Worcester, ss.

 

Docket # No. 08-SP – 01307

Parties: BENICIO ROSADO v. VANESSA ROBERTO and RAVIN JANOUSEK

Judge: /s/DIANA H. HORAN

First Justice

Date: April 29, 2008

FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

The plaintiff put forth a prima facie case for possession and rent of $3,500 through May 17, 2008. The monthly rent is $650 and is due on the 17th. Ravin Janousek is added as a defendant.

The defendants produced a Board of Health report listing several violations predating their non payment of rent. These conditions are a breach of the implied warranty of habitability, entitling the defendants to a reduction in the rent of 20% since December 17, 2007 or $650 total. (20% of $650 = $130 X 5 months = $650.00)

Pursuant to M.G.L.c. 239 s. 8A the defendants shall have 7 days from receipt of this decision to pay $2,880 into Court by cash or bank check/money order made out to the plaintiff. If such is done judgment shall enter for the defendants for possession. If such is not done, judgment shall enter for the plaintiff for possession and rent of $2,850 plus costs..

 

 

 

 

 

End Of Decision

 

HOUSING COURT

WASHINGTON HEIGHTS APARTMENT v. ERIC SARPONG

 

Worcester, ss.

 

 

Docket # No. 08-SP – 0901

Parties: WASHINGTON HEIGHTS APARTMENT v. ERIC SARPONG

Judge: /s/DIANA H. HORAN

First Justice

Date: April 7, 2008

FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

The plaintiff put forth a prima facie case for possession and rent of $2,551 through April 2008. The monthly rent is $858. The defendant rents this unit pursuant to a federally subsidized program. A valid Notice to Quit was served.

The defendant filed an answer and counterclaim in which he asserted defective conditions within the unit as a defense to his nonpayment of rent. These conditions include a defective stove and a substantial ceiling leak which has caused considerable damage to his unit. The defendant states that this leak has been present for 5 years and the management has known.

The defendant further stated that the plaintiff knew about the problem back in July 2007 during the annual inspection .

The plaintiff states that they have not received any complaints about the ceiling until recently and the stove was replaced in a timely fashion. They offered no evidence regarding the annual inspection.

The ceiling leak is a breach of the implied warranty of habitability. This breach entitled the defendant to a reduction of 10% in the monthly rent since July 1, 2007, or $85.80 X 10 months = $858.

 

– 1-

 

Pursuant to M.G.L.c. 239 s. 8A the defendant shall have 7 days from receipt of this decision to pay $1,693 ($2,551 – $858) into Court by cash or money order or bank check made out to the plaintiff. If such is done judgment shall enter for the defendant for possession. If such is not done judgment shall issue for the plaintiff for possession and rent of $2,551 through April 2008 plus costs.

 

 

 

– 2-

 

 

End Of Decision

 

HOUSING COURT

GLADYS CALDERON v. JOSEPHINE WAITHAKA

 

 

Worcester, ss.

 

 

Docket # No. 08-SP-0885

Parties: GLADYS CALDERON v. JOSEPHINE WAITHAKA

Judge: /s/DIANA H. HORAN

First Justice

Date: April 1, 2008

FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

The plaintiff put forth a prima facie case for possession and rent of $1,650 through March 2008.

The defendant testified that she had no heat in the unit from

when she moved in (August 2007) until January 22, 2008. She further testified that she had informed the plaintiff of the items listed in the Board of Health report dated February 21, 2008 prior to calling the Board of Health. This evidence was not contradicted by the plaintiff.

These conditions in total result in an interference with quiet enjoyment in violation of M.G.L. c. 186 s. 14. The defendant is entitled to statutory damages of three times the monthly rent or $1,650.00.

Pursuant to M.G.L.c. 239 s. 8A judgment shall enter for the defendant for possession.

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

GAYLE DIDONATO v. DERRICK LORANGER

 

Worcester, ss.

 

Docket # No. 08-SP-0984

Parties: GAYLE DIDONATO v. DERRICK LORANGER

Judge: /s/DIANA H. HORAN

First Justice

Date: March 26, 2008

FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

The plaintiff put forth a prima facie case for cause due to the defendant’s interference with the quiet enjoyment of the other tenants (electric guitar and loud radio). The defendant owes rent for March of $550.

The defendant admitted to the guitar but felt he had the right to play his radio. He testified that he was a victim of sodomy in his prior tenancy and once he declared this in writing to another tenant he is now being harassed. He also testified that he suffers from schizophrenic paranoia.

Judgment for the plaintiff for possession and rent of $550 plus costs.

 

 

 

 

 

-1-

 

 

End Of Decision

 

HOUSING COURT

V & B INVESTMENTS, LTD. v. DAVID KING AND RACHAEL PITNEY

 

 

Worcester, ss.

 

Docket # No. 07-SP-004678

Parties: V & B INVESTMENTS, LTD. v. DAVID KING AND RACHAEL PITNEY

Judge: /s/DIANA H. HORAN

First Justice

Date: January 9, 2008

FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

The plaintiff put forth a prima facie case for possession and rent of $2,850 through January 2008. A valid Notice to Quit was served. The monthly rent is $950. The lease term is October 1, 2007 – September 30, 2008.

The defendants have filed an answer and counterclaim outlying in a very detailed chronology their dissatisfaction with the condition of the rented unit. This included both the cleanliness of the unit and some code violations. In addition no signed lease was provided. Lease terms were changed by the landlord regarding charging for parking or not and classify the tenancy as a tenancy at will. After voluminous correspondence back and forth, the defendants called the Board of Health and a report issued on December 12, 2007 which listed six violations. These violations concerned, for the most part, ill fitting windows and weather tight conditions. These items were repaired by January 2, 2008. The defendants feel that they should be compensated for their time, expenses and frustration spent getting the unit cleaned. The Court agrees in part. The conditions in the unit in total, violated M.G.L.c. 186 s. 14 (interference with quiet enjoyment).

 

This entitles the defendant to statutory damages of $2,850. See Darmetko v. BHA 378 Mass 758 (1979). The Court finds no violation of M.G.L.c. 186 s. 18. Pursuant to M.G.L.c. 239 s. 8A judgment shall enter for the defendant for possession.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

PAULO MONTENAGRO v. ANGEL RIVERA AND MARITZA RIVERA

 

WORCESTER, SS.

 

Docket # NO. 07-SP-004684

 

Parties: PAULO MONTENAGRO v. ANGEL RIVERA AND MARITZA RIVERA

Judge: /s/DIANA H. HORAN

FIRST JUSTICE

Date: January 3, 2008

FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

The Plaintiff put forth a prima facie case for possession and rent of $1,200 through December 2007. The lease agreement expired and the Plaintiff chose not to renew the lease. The monthly rent is $600.

The Defendants assert that there are numerous code violations in the unit. A Board of Health report confirms this. However, a December 2006 work order request does not list these problems. Therefore, the Court must find that these conditions occurred within the last year. These conditions are an interference with quiet enjoyment entitling the Defendants to three times the monthly rent of $1800.00.

The Defendants are not entitled to possession as the lease agreement has expired.

Pursuant to M.G.L. Chapter 239 Section8A, judgment for possession only shall enter for the Plaintiff and Judgment for $600.00 shall enter for the Defendants.

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

CHRISTOPHER BEJUNE VS. SHAYNE BEARDSLEY

 

 

WORCESTER, SS.

 

Docket # NO. 07H85SP004664

Parties: CHRISTOPHER BEJUNE VS. SHAYNE BEARDSLEY

Judge: /s/DIANA H. HORAN

FIRST JUSTICE

Date: December 20, 2007

FINDINGS OF FACT AND ORDER FOR JUDGMENT

The Plaintiff put forth a prima facie case for possession and rent of $2400 through December 2007. The monthly rent is $650.

The Defendant presented a Board of Health Report dated November 29, 2007 which includes several code violations. These conditions are a breach of the implied warranty of habitability entitling the Defendant to a 10% abatement in the rent for the months of October, November and December or $195.00 ($65.00 x 3 =195).

Pursuant to M.G.L. Chapter 239 Section 8A the Defendant shall have seven (7) days from receipt of this decision to pay $2,205 into Court by cash, money order or bank check made out to the Plaintiff. If such is done, Judgment shall enter for the Defendant. If such is not done, judgment shall enter for the Plaintiff for possession and rent of $2,025 plus costs.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

AARON KENNEDY, Plaintiff v. OTHELLO BRUCE

 

Worcester, ss.

 

Docket # No. 07-SP-003625

Parties: AARON KENNEDY, Plaintiff v. OTHELLO BRUCE

Judge: /s/DIANA H. HORAN

First Justice

 

Date: October 22, 2007

FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

The plaintiff put forth a prima facie case for possession and rent of $950 for the month of October 2007. A valid Notice to Quit was served. The monthly rent is $950 and the defendant did not pay August, but did pay $950 in September and also October.

The defendant testified that he did not pay August rent due to conditions in the unit. He further testified that he gave written notice that he would withhold August rent, in a letter dated April 2007. The plaintiff stated he did not receive this letter and based upon the credible evidence presented the Court finds this to be the case. However, the Court finds that the plaintiff should have known of some of these conditions as they are visible from the exterior. In addition, there were also numerous conversations between the parties during this period. On October 2, 2007 a Board of Health report was sent outlining the issues which included defective windows and screens, a broken stove and door bell and rodents.

These conditions are a breach of the implied warranty of habitability entitling the defendant to a 10% reduction in rent since March 2007 or $760 total ($95 x 8 = $760).

Pursuant to M.G.L.c. 239 s. 8A the defendant shall have 7 days from receipt of this decision to pay $190 into Court by bank check or money order made out to the plaintiff or cash. If such is paid the judgment for possession shall enter for the defendant. If such is not done judgment shall enter for the plaintiff for possession and $190 plus costs and attorney fees.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

JAMES C. ROBERTSON v. JAMES WHALEN and DONNA EDWARDS WHALEN

 

Worcester, ss.

 

Docket # No. 07-SP-003036

Parties: JAMES C. ROBERTSON v. JAMES WHALEN and DONNA EDWARDS WHALEN

Judge: /s/DIANA H. HORAN

First Justice

Date: October 30, 2007

FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

The plaintiff put forth a prima facie case for possession and rent of $3,550 through September 2007. Possession is not at issue. The monthly rent is $710 and a valid Notice to Quit was served.

The defendants put forth several defenses and counterclaims. These include, retaliation, breach of implied warranty of habitability, interference with quiet enjoyment and C. 93A.

The Court finds that the defendants have met their burden under M.G.L. c. 186 s.18 (retaliation) as the plaintiff offered no testimony to rebut the presumption that the Notice to Quit was served because of the defendant’s complaints regarding code violations. Pursuant to M.G.l.c. 186 s. 18 the defendants are entitled to statutory damages of three times the rent or $2,130 plus a reasonable attorney’s fee.

The defendants testified to numerous code violations or defective conditions including lack of smoke detectors, lack of heat, mold, and cross metering. Absent contrary testimony the Court must accept the defendants’ testimony that the plaintiff knew of these violations and failed to fix them. These conditions in totality are a violation of G.l.c. 186 s.

 

-1-

 

14 entitling the defendants’ to statutory damages of three times the monthly rent or $2,130 plus a reasonable attorney’s fee. In addition the cross metering is a violation of G.L.c. 93A entitling the defendants to $25 plus a reasonable attorney fee.

Finally the defendants conducted work at the property to address issues in other units including purchasing a water heater. The defendants were never reimbursed the $625.00.

Pursuant to M.G.L.c. 239 s. 8A judgment shall enter for the defendants for $1,360 plus attorney’s fees upon the filing of a motion.

 

 

 

– 2-

 

 

End Of Decision

 

HOUSING COURT

CAROL KURLAND v. BRIAN KENNEDY DAVID BRYANT and PAULA BRYANT

 

 

Worcester Division

 

 

Docket # 09-SP-000696

 

Parties: CAROL KURLAND v. BRIAN KENNEDY DAVID BRYANT and PAULA BRYANT

 

Judge: /s/DIANA H. HORAN

First Justice

 

Date: April 8, 2009

 

FINDINGS RULINGS AND ORDER FOR JUDGMENT

 

The plaintiff put forth a prima facie case for possession. As will be explained in further detail below, the defendants either occupied the property as tenants at sufferance or as licensees. This is not a traditional summary process case.

The Court finds the following based upon the credible evidence presented. In September 2007 the defendants entered into an arrangement with the plaintiff whereby they would move onto the property at 76 East Charlton Road, Spencer, MA and operate a horse and canine training business under the name of Goliath Services LLC. The arrangement (never memorialized into a written document) resulted in the three defendants moving into the single family home located on the property. The defendants testified that the oral agreement provided that they could live in the home, rent free, in exchange for their care of 17 named horses already boarding at the property. They could also bring additional horses to board at the property. The defendant’s further testified that they agreed to pay for the utilities and in fact placed the utilities in their names.

 

– 1-

 

The defendants testified that all of their time was spent caring for the horses, cleaning the stalls and maintaining the property. Some repairs required materials to be purchased and sometimes the defendants were not reimbursed for their purchases.

Many attempts were made by the parties to create a written lease agreement. There was never a meeting of the minds with respect to the payment of rent, nor for the distribution of boarding fees received for the horses.

Throughout the defendants’ occupancy of the property the

plaintiff received numerous complaints as to the defendants’ care of the horses. Several witnesses testified as to the poor care given to the horses by the defendants. These witnesses testified as to poor feeding practices, including examples of malnutrition, and poor relations with the horses causing them to become timid. The plaintiff spoke to the defendants (as did some horse owners) several times but the situation did not improve.

By December 2008 the relationship between the parties had greatly deteriorated. On Christmas Day the plaintiff had a heated discussion by phone with Mrs. Bryant ( a co-defendant) about their arrangement regarding the horses and the plaintiff instructed Mrs. Bryant that she wanted the defendants to vacate the property. On December 26, 2008 the plaintiff’s wishes were then repeated to the defendants’ by the plaintiffs son in-law, who again told the defendants’ they had to move.

On December 29, 2008, the defendants sent an e-mail to the plaintiff regarding mold in the dwelling. This is the first time the defendants informed the plaintiff of the issue. On that date, the Board of Health was called, but no evidence of an inspection or any order issued was introduced into evidence. On January 3, 2009 the defendants provided the plaintiff with a list of five items that required repair: smoke detectors, mice holes, weather tight house, mold and ceiling. No further explanation was provided.

 

– 2-

 

On January 5, 2009 the plaintiff terminated the defendants’ services with respect to the horse farm. The defendants collected boarding fees for January 2009, but have paid no money to the plaintiff and have not provided any services since that date. Also on January 5, 2009 the Notice to Quit was served.[1]

The defendants assert several defenses and counterclaims which the Court will now consider. First, the defendants allege that their tenancy was not terminated properly. The fact is that there is a serious question as to whether a tenancy ever existed or whether the defendants were simply licensees. There are several factors to consider in assessing whether there is a licensor/licensee relationship. These include whether rent is paid, whether the agreement is written or oral, the extent of control over the premises and the parties intentions when they began the arrangement. If the defendants are licensees, the plaintiff need not follow the requirements of M.G.L.c. 239 or M.G.L.c. 186 with respect to summary process and the termination of the tenancy. See Beacon Park Assocs. V. Corbett, 96-J-693. However because the plaintiff served the 30 day Notice to Quit, the defendants were provided with additional due process protections, and given ample notice of the plaintiff’s intention to reclaim her property. The defendants’ claim as to defective notice therefore fails.

The defendants assert violations of M.G.L. c. 239 s. 2A and M.G.L. c. 186 s. 18 (retaliation) because the plaintiff sent the Notice to Quit on January 5, 2009. Pursuant to M.G.L. c. 239 s. 2A, a tenant has a defense to the landlord’s claim for possession. Additionally, a tenant has claim for damages under M.G.L. c. 186, s. 18, if the landlord’s commencement of a summary process action or his service upon the tenant of a notice of termination upon which the action is based, was in retaliation for, among other things, the

tenant’s reporting a violation or suspected violation of law to a health or building department, or reporting a violation or suspected violation of law in writing to the landlord as provided in M.G.L. c. 186, s. 18. The commencement of a summary process action or the service of a notice of termination within six (6) months of a

 

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[1] A second 14 day Notice to Quit was served on January 28, 2009 alleging non payment of rent. The Court finds the first notice, to the extent it is even required, to be valid.

 

– 3-

 

tenant’s action of reporting to a health or building department, or complaining of such violation or suspected violation in writing to the landlord, creates a rebuttable presumption of retaliation.

According to the defendants the Notice to Quit was given after the plaintiff was notified of defective conditions on December 29, 2008 and again on January 3, 2009. This argument fails however because the credible evidence presented at trial shows that the defendants were asked to vacate on December 25, 2008 and December 26, 2008 and that they then informed the plaintiff of defective conditions three days later. To the extent that there was even an iota of a presumption of retaliation, the plaintiff overcame that presumption both by the timing of her communications with the defendants and her independent reasons for wanting to end the relationship (poor care of the horses). Therefore there was no violation of either statutory provisions.

The defendants also asserted claims pursuant to M..G.L.c.239 s.8A and M.G.L.c 186 s.14 because of defective conditions within the living unit and because there was no written agreement governing the payment of utilities. Under the implied warranty of habitability, the landlord assures that the premises meet certain standards under the State Sanitary Code. 105 CMR 410, 780 CMR 1 et seq. The landlord is liable for code violations and breach of warranties. If, however, the landlord contends that the breach was caused through the fault of the tenant, and not the landlord, the landlord bears the burden to prove that the tenant did indeed cause that breach. A tenant is entitled to damages equivalent to the value of the premises if up to Code minus their value in their actual, defective condition. Haddad v. Gonzales, 410 Mass. 855, 576 N.E.2d 658 (1991). It is usually impossible to fix warranty damages with mathematical certainty; the case law permits the courts to use an approximate dollar figure so long as that figures is reasonably grounded in the evidence presented at trial. Young v. Patukonis, 24 Mass. App. Ct. 907, 506 N.E.2d 1164 (1987). A tenant is entitled to the enjoyment of his or her property for the life of the tenancy, without interference. Simon v. Solomon, 385 Mass. 91, 431 N.E.2d 556, 569 (1982). In order for the said breach to meet the high standard required for a breach of quiet enjoyment, the parties must show that the breach was sufficiently serious and/or

 

– 4-

prolonged to meet the statutory threshold. Leardi v. Brown, 394 Mass. 151, 474 N.E.2d 1094 (1985). A finding of at least negligent conduct is a prerequisite for a finding of a statutory violation. McAllister

v. Boston Housing Authority, 429 Mass. 300, 708 N.E.2d 95 (1999). In a summary process action brought pursuant to a notice to quit for non-payment of rent, or where the tenancy has been terminated without fault of the tenant or occupant, the tenant or occupant shall be entitled to raise, by defense or counterclaim, any claim relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law. The counterclaims are available to offset rent owed. In order for the setoff provision to be available, the following requirements are necessary: (1) the landlord knew of the conditions prior to the tenant falling into rental arrears; (2) plaintiff does not show that the tenant’s, or someone in their control, caused the condition; (3) the premises are not in a hotel, motel or lodging house where the tenant has resided for less than three consecutive months; and (4) the plaintiff does not show that the conditions cannot be corrected without vacating the premises.

There is no question that there were defective conditions within the dwelling unit. However, there was no credible evidence presented at trial that the plaintiff knew or should have known about these conditions prior to December 29, 2008. Once notified by the defendants she has effectuated repairs. The pictures presented by the defendants do show a recurring mold problem, however attempts have been made to rectify it and actual elimination of all mold will most certainly require the unit to be vacant to assure complete removal. What is clear to the Court is that the defendants knew of the mold problem throughout their time in the dwelling and did little or nothing to address it, thereby resulting in a more serious problem at present. The defendants testimony that they did not know of or appreciate the significant health concerns of the presence of mold lacks complete credibility. This is especially true where Mrs. Bryant has a house cleaning business and has been cleaning houses for several years.

Additionally the defendants agreed at the inception of their arrangement with the plaintiff to place the utilities in their name and to be responsible for paying them. Pursuant to the State

 

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Sanitary Code, if this is a tenancy then that agreement should have been in writing. However when it is not in writing, the defendants are entitled to recover only if there is actual damages or if the action is deemed to be unfair practice in violation of M.G.L.c. 93A see Ponz v. Loftin, 34 Mass. App. Ct. 909, 607 N.E. 2d 76S (1993). In the present action the defendants can not show actual damages because the utility bill was the only cost the defendants committed to pay. There was no use and occupancy required to be paid. Furthermore, the Court cannot find that the plaintiff committed an “unfair practice” under M.G.L.c. 93A. A landlord is liable to the tenant for damages if the landlord is in the trade or business of renting residential property and has engaged in unfair and deceptive acts or practices. If the above violations were knowing and/ or willful, the court must, without discretion, award multiple actual damages as well as attorney’s fees. Montanez v. Bagg, 24 Mass. App. Ct. 954, 510 N.E.2d 298 (1987).

Here the Court must find that no evidence was presented to show

the plaintiff engaged in “the trade or commerce” of renting residential units as the statute requires. In fact, the evidence presented showed that the plaintiff is in the trade or commerce of operating a horse farm. The use and occupancy of the dwelling unit is clearly incidental. Therefore, the defendants claims under M.G.L.c. 186 s. 14 and 93A must also fail.

In their written answer and counterclaim the defendants also alleged that the plaintiff discriminated against them due to a disability. While some testimony was presented as to Mr. Bryant’s( a co-defendant) poor health, no evidence was presented as to a disability or as to the alleged discriminatory actions of the plaintiff and as such the defendants’ claims under M.G.L.c. 151B must also fail.

For the foregoing reasons judgment shall enter for the plaintiff for possession.

 

 

 

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End Of Decision

 

HOUSING COURT

DARLENE BOOTH v. JAROSLAN PIANKA

 

Worcester Division

 

 

Docket # 09-SP-000297

 

Parties: DARLENE BOOTH v. JAROSLAN PIANKA

 

Judge: /s/DIANA H. HORAN, First Justice

 

Date: March 6, 2009

 

FINDINGS RULINGS AND ORDER FOR ENTRY OF JUDGMENT

 

The plaintiff put forth a prima facie case for possession and rent of $3,300 through March 14, 2009. The monthly rent is $1,100 and is due on the 15th of the month, The defendant did not pay rent for December, January or February.

The defendant asserts several defenses and counterclaims. The Court will address each in turn. A Notice to Quit was dated and delivered on December 22, 2008, the same day that the defendant called the Board of Health. It is not necessary to determine which came first pursuant to M.G.L.c. 186 s. 18 (retaliation) because the Court finds that the plaintiff had legal cause to serve the notice i.e. non-payment of rent.

The defendant testified that they there were defective conditions within her unit. As to the lack of electricity and heat on

December 12 and 13 the Court finds that there was a historical ice event which was not caused in anyway by the plaintiff. Further the plaintiff took steps to address the failed sump pump rather quickly and with this particular set of facts the Court finds that this was an Act of God beyond the control of the parties.

As to the defective conditions the Court finds that the lack of smoke detectors, carbon monoxide detectors and the defective stove were remedied in a timely fashion. The heat problems appeared to be tenant related (no oil) except for the order dated February 24, 2009 which relates to air flow. This violation and the plaintiff’s failure to repair the handrails in a timely fashion are a breach of the implied warranty of habitability entitling the defendant to an abatement of the rent since February 15 of 20% or $220. This shall be

 

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doubled pursuant to M.G.L.c. 93A as the Court finds the actions of the plaintiff to be willful and the defendant shall receive a reasonable attorney’s fee. Further pursuant to M.G.L.c. 93A the defendant is entitled to statutory damages of $25 for the presence of lead paint plus a reasonable attorney’s fee.

Pursuant to M.G.L.c. 239 s.8A the defendant shall have 7 days from receipt of this decision to pay $2,835 into Court by bank check, or money order made out to the plaintiff. If such is done then judgment for possession shall enter for the defendant. If such is not done, then judgment shall enter for the plaintiff for possession and $2,835 through March 14, 2009 plus costs.

 

 

 

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End Of Decision

 

HOUSING COURT

ANN JENNE v. VIRGEN RIVERA

 

Worcester Division

 

 

Docket # 08-SP-3913

 

Parties: ANN JENNE v. VIRGEN RIVERA

 

Judge: /s/DIANA H. HORAN, First Justice

 

Date: February 19, 2009

 

AMENDED FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

 

The plaintiff put forth a prima facie case for possession and rent of $3,600 through December 2008. A valid Notice to Quit was served. The monthly rent is $900. This tenancy began on February 1, 2008.

The defendant presented evidence that since the beginning of her tenancy she has had some problems in the unit. These include lack of screens, rodents, inadequate lighting and inadequate trash receptacles. These complaints were confirmed in a Board of Health report dated November 5, 2008. To date they have not been repaired.

These conditions are a breach of the implied warranty of habitability entitling the defendant to a 20% abatement in the rent since February 1, 2008 or $1,980 (20% of $900 = $180 X 11 months). As the plaintiff falls under the provisions of M.G.L.c. 93A this amount shall be doubled as the violations were willful in nature.

Judgment for the defendant for possession and $360 and for an attorney fee of $1,012.50 pursuant to M.G.L.c. 93A.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

CMJ MANAGEMENT COMPANY v. KATHLEEN HUTCHINSON

 

Worcester Division

 

 

Docket # 09-SP-0299

 

Parties: CMJ MANAGEMENT COMPANY v. KATHLEEN HUTCHINSON

 

Judge: /s/DIANA H. HORAN, First Justice

 

Date: February 18, 2009

 

FINDINGS RULINGS AND ORDER

 

The plaintiff put forth a prima facie case for possession based upon lease violations which include disturbing the quiet enjoyment of the other occupants.

The defendant testified that it is her daughter’s boyfriend who is loud at times. He is not an authorized occupant. The defendant further testified that she suffers from depression.

This case is being referred to the Tenancy Preservation Program (TPP). The defendant must cooperate and comply with any recommendations made by TPP. A No Trespassing Order shall be issued by the plaintiff to the defendants daughter’s boyfriend. The defendant, and her daughter must cooperate with the plaintiff to report any violation of the No Trespassing Order.

The defendant is to be placed in a probationary period of 18 months during which time the defendant is ordered not to interfere with the quiet enjoyment of any occupants or witnesses in this trial.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

MARY ROSMAN and DAN ROSMAN v. ANDREW FARNSWORT

 

Worcester Division

 

 

Docket # 09-SP-00065

 

Parties: MARY ROSMAN and DAN ROSMAN v. ANDREW FARNSWORT

 

Judge: /s/DIANA H. HORAN, First Justice

 

Date: January 27, 2009

 

FINDINGS RULINGS AND ORDER FOR ENTRY OF JUDGMENT

 

The plaintiff put forth a prima facie case for possession and rent of $1,950 through January 2009. A valid Notice to Quit was served. The monthly rent is $550.

The defendant testified that there are code violations in this unit. These violations were confirmed by a Board of Health report dated November 26, 2008 and by an order dated December 3, 2008 by the Gardner Wiring Inspector. A very serious electrical deficiency was present at this property. This is a breach of the implied warranty of habitability entitling the defendant to a 50% abatement of the rent from November 1, 2008 through January 31, 2009 or $825 total ($550 X 3 months = $1,650 _ 2 = $825).

Pursuant to M.G.L.c. 239 s. 8A the defendant shall have 7 days from receipt of this decision to pay $1,125 into Court by bank check or money order made out to the plaintiff. If such is done judgment for possession shall enter for the defendant. If such is not done judgment shall enter for the plaintiff for possession and $1,125 plus costs.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

ANN JENNE, Plaintiff v. VIRGEN RIVERA, Defendant

 

 

Worcester, ss.

 

 

Docket # No. 08-SP 3913

 

Parties: ANN JENNE, Plaintiff v. VIRGEN RIVERA, Defendant

 

Judge: /s/DIANA H. HORAN

First Justice

 

Date: December 17, 2008

 

FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

The plaintiff put forth a prima facie case for possession and rent of $3,600 through December 2008. A valid Notice to Quit was served. The monthly rent is $900. This tenancy began on February 1, 2008.

The defendant presented evidence that since the beginning of her tenancy she has had some problems in the unit. These include lack of screens, rodents, inadequate lighting and inadequate trash receptacles. These complaints were confirmed in a Board of Health report dated November 5, 2008. To date they have not been repaired.

These conditions are a breach of the implied warranty of habitability entitling the defendant to a 20% abatement in the rent since February 1, 2008 or $1,800 (20% of $900 = $180 X 10 months). As the plaintiff falls under the provisions of M.G.L.c. 93A this amount shall be doubled as the violations were willful in nature.

Judgment for the defendant for possession and for a reasonable attorney fee pursuant to M.G.L.c. 93A.

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

MBSG NOMINEE TRUST BARBARA MAY & MELISSA PERSON, Plaintiffs v. COLLEEN GAMBLE and WILL GAMBLE, Defendants

 

 

 

 

Worcester, ss.

 

 

Docket # No. 08-SP – 03710

 

Parties: MBSG NOMINEE TRUST BARBARA MAY & MELISSA PERSON, Plaintiffs v. COLLEEN GAMBLE and WILL GAMBLE, Defendants

 

Judge: /s/DIANA H. HORAN

First Justice

 

Date: November 7, 2008

 

FINDINGS RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The plaintiff put forth a prima facie case for possession and rent of $5,350 through November 2008. A valid Notice to Quit for non payment of rent was served on September 9, 2008. The monthly rent is $1,250.00.

The defendants put forth several defenses and counterclaims. The court finds no violation of M.G.L.c. 186 s. 15B (security deposit law) as the plaintiffs returned the security deposit within a reasonable time of the demand letter sent on May 14, 2008. See. Castenholz v. Caira, 21 Mass. App. Ct. 758, 490 N.E. 2d. 494 (1986).

The Court finds no violation of the M.G.L.c. 186 s. 18 (retaliation) as the plaintiffs were within their rights to pursue sale of the property and to bring this non-payment of rent action

once the defendants stopped payment. Therefore, they have satisfied their burden under this provision. See Jablonski v. Clemons, 60 Mass. App. Ct. 473, 803 N.E. 2d 730 (2004).

The remaining claims relate to conditions at the property and whether or not these rise to the level of a breach of the implied warranty of habitability. The evidence showed that at the end of April the plaintiffs were made aware of several items that needed repair. A written list was presented by the defendants and receipt of such was confirmed by the plaintiffs. Most repairs were made timely. Orders by the Board of Health note the only

 

– 1-

 

remaining violations as of June 2008 and August 2008 were the lead paint and a loose door to the attic and a doorknob on the back door. As of August 22, 2008, the lead paint was abated.

These conditions in total (inclusive of the list, dated April 30, 2008) result in a breach of the implied warranty of habitability of which the plaintiffs had legally sufficient notice on that date. Therefore the defendants are entitled to an abatement of the rent of 20% for the months of May – August or $1,000 total. (20% of $1,250 = $250 X 4 months equal $1,000).

Pursuant to M.G.L.c. 239 s. 8A judgment for possession shall enter for the defendants if within 7 days of receipt of this decision they tender a bank check or money order to the court, made out to the plaintiff for $4,350. If such is not done, judgment shall enter for the plaintiffs for possession and rent of $4350 plus costs.

 

 

 

 

 

– 2-

 

 

End Of Decision

 

HOUSING COURT

DONNA SANTELLA, Plaintiff v. JOSEPH BERGER and CHRISTINA MONTIERO, Defendants

 

 

Worcester, ss.

 

 

Docket # No. 08-SP – 03684

 

Parties: DONNA SANTELLA, Plaintiff v. JOSEPH BERGER and CHRISTINA MONTIERO, Defendants

 

Judge: /s/DIANA H. HORAN

First Justice

 

Date: October 28, 2008

 

FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

The plaintiff put forth a prima facie case for possession and rent of $1350 through October 30, 2008. The rent is paid weekly at $150.

 

The defendants testified that there are code violations at the property, that they have notified the plaintiff and the Board of Health and that the repairs have not been done. These conditions relate mainly to a water problem caused by poor drainage from the roof. These conditions are a breach of the implied warranty of habitability dating back to September 5, 2008. This breach entitles the defendants to a reduction in the rent of 10% or $15 X8 weeks = $120.

Pursuant to M.G.L.c. 239 s. 8 a judgment for possession shall enter for the defendants if within 7 days of receipt of this decision they pay $1,230 into Court by bank check or money order made out to the plaintiff. If such is not done judgment shall enter for the plaintiff for possession and $1,230 plus costs.

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

KATRINA PARAFINOWICZ, Plaintiff v. SIDNEY SANTIAGO, Defendant

 

 

Worcester, ss.

 

 

Docket # No. 08-SP – 03701

 

Parties: KATRINA PARAFINOWICZ, Plaintiff v. SIDNEY SANTIAGO, Defendant

 

Judge: /s/DIANA H. HORAN

First Justice

 

Date: October 16, 2008

 

FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

The plaintiff put forth a prima facie case for possession and rent of $1,950 through October 2008. The monthly rent is $650.

The defendant stated that there are several code violations in the apartment and she had pictures to support this. These are a breach of the implied warranty of habitability entitling the defendants to an abatement of the rent of 20% for the months of September and October ($260.00).

Pursuant to M.G.L.c. 239 s. 8A the defendants shall have 7 days from receipt of this decision to pay $1,690 into court by bank check or money order made out to the plaintiff. If such is done judgment for possession shall enter for the defendant. If such is not done judgment shall enter for the plaintiff for possession and $1,690 plus costs.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

ANDREA INGERSOLL, Plaintiff v. BECKY GEIRS and JOHN GEIRS, Defendants

 

Worcester, ss.

 

 

Docket # No. 08-SP – 03608, 08-CV-0750

 

Parties: ANDREA INGERSOLL, Plaintiff v. BECKY GEIRS and JOHN GEIRS, Defendants

 

Judge: /s/DIANA H. HORAN

First Justice

 

Date: October 16, 2008

 

FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

 

The plaintiff put forth a prima facie case for possession and rent of $1,800 through October 2008. The monthly rent is $700.

The defendant states that they have been without hot water on several occasions during the month of September.

The plaintiff denies this, and there is not a Board of Health report to substantiate the claim. The court finds that on occasion the hot water may be insufficient but that it doesn’t rise to the level of a breach of the implied warranty of habitability.

Judgment for the plaintiff for possession and rent of $1,800 through October 2008 plus costs.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

DARLENE GRAY, Plaintiff v. EDWARD BROWN, Defendant

 

 

Worcester, ss.

 

 

Docket # No. 08-SP – 03440

 

Parties: DARLENE GRAY, Plaintiff v. EDWARD BROWN, Defendant

 

Judge: /s/DIANA H. HORAN

First Justice

 

Date: October 16, 2008

 

FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

 

The plaintiff put forth a prima facie case for possession. A valid Notice to Quit was served alleging criminal activity and interference with the quiet enjoyment of the other tenants.

The plaintiff provided evidence, and the defendant admitted, that there were verbal threats to murder and cause physical and property damage. Further, the defendant admitted stealing electricity from the plaintiff. Finally there was evidence of a consistent pattern of verbal abuse by the defendant.

Judgment for the plaintiff for possession plus costs.

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

MARIO BALDUCCI, Plaintiff v. GEORGE JUD and VICTORIA LAUBER, Defendants

 

 

Worcester, ss.

 

 

Docket # No. 08-SP – 03187

 

Parties: MARIO BALDUCCI, Plaintiff v. GEORGE JUD and VICTORIA LAUBER, Defendants

 

 

Judge: /s/DIANA H. HORAN

First Justice

 

Date: October 9, 2008

 

FURTHER AMENDED FINDINGS OF FACT AND RULING OF LAW

Based upon the evidence presented by the defendant at her motion to reconsider the Court’s decision is amended as follows:

These conditions are a breach of the implied warranty of habitability. They have existed since February 1, 2008 and despite the plaintiff’s representation at trial that they were abated a September 22, 2008 Board of Health order states otherwise. The defendants are entitled to a 50% abatement or a return of $1,275 from the plaintiff.

$850 (monthly rent)

$425 (50% abatement)

X 9 months = $3,825 – $2,550 (rent owed) = $1,275.

 

Pursuant to M.G.L.c. 239 s. 8A judgment shall enter for the defendant for possession and $1,275.

In addition, the plaintiff is ordered to repair all items listed in the September 22, 2008 Board of Health report forthwith.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

ROBIN ST. FRANCIS and RONALD ST. FRANICS, Plaintiffs v. FLORENCE HAMM and KEVIN HAMM, Defendants

 

 

Worcester, ss.

 

 

Docket # No. 08-SP – 03236, No. 08-SC- 00249

 

Parties: ROBIN ST. FRANCIS and RONALD ST. FRANICS, Plaintiffs v. FLORENCE HAMM and KEVIN HAMM, Defendants

 

Judge: /s/DIANA H. HORAN, First Justice

 

Date: October 1, 2008

 

FINDINGS RULING AND ORDER FOR ENTRY OF JUDGMENT

 

The plaintiffs brought this summary process action pursuant to a 30 day Notice to Terminate the Tenancy dated June 21, 2008. No rent is owing at this time and the defendants have vacated the property. The monthly rent was $800.

The defendants have filed a counterclaim and a small claims action all of which was tried before this Court as one action. The defendants claim a security deposit violation (M.G.L.c. 186 s. 15B) and a constructive eviction (M.G.L.c. 186 s. 14.)

The evidence presented at trial confirms that the plaintiffs violated the security deposit law when they did not place it in a separate interest-bearing account, did not provide a statement of conditions and did not return it upon demand (June 13, 2008). See Castenholz v. Caira, 21 Mass. App. 758, 490 N.E. 2d 494 (1986). Therefore, the defendants are entitled to statutory damages pursuant to M.G.L.c. 93A of $25.00 and a reasonable attorney’s fee. Further the defendants are entitled to statutory damages of three times the security deposit plus a reasonable attorney’s fee. The Court finds the security deposit to be $408.33 based upon the findings that the defendants agreed to this figure at the inception of the tenancy.

The Court finds no violation of M.G.L.c. 186 s.14 as the evidence (utilities off) supported the finding that the defendants had vacated the property.

Judgment for the defendants for,$1,249.99 plus a reasonable attorney’s fee.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

WILLIAM NICKOLS, JR., Plaintiff v. MATTHEW R. INGRAM, Defendant

 

Worcester Division

 

 

Docket # No. 09-SP – 2175

 

Parties: WILLIAM NICKOLS, JR., Plaintiff v. MATTHEW R. INGRAM, Defendant

 

Judge: /s/DIANA H. HORAN, First Justice

 

Date: August 4, 2009

 

AMENDED FINDINGS RULINGS AND ORDER FOR JUDGMENT

 

The Plaintiff put forth a prima facie case for possession and rent of $1,110 through July 2009. A valid Notice to Quit was served. The monthly rent is $370.

The defendant testified that there are defective conditions within his unit. A Board of Health report dated July 14 supports the fact that the defendant’s unit has no heat, no second means of egress, and no smoke detectors or carbon monoxide detectors. The violations rise to the level of an interference with the quiet enjoyment. Pursuant to M.G.L. c. 186 s. 14 the defendant shall be credited with statutory damages of three times the monthly rent of $1,110.00.

Judgment for the defendant.

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

STEVEN PUVIRAJA, Plaintiff v. ANTHONY DEJESUS and RIANA FREEMAN, Defendants

 

Worcester, ss

 

 

Docket # No. 09-SP – 2179

 

Parties: STEVEN PUVIRAJA, Plaintiff v. ANTHONY DEJESUS and RIANA FREEMAN, Defendants

 

Judge: /s/DIANA H. HORAN, First Justice

 

Date: July 20, 2009

 

FINDINGS RULINGS AND ORDER FOR JUDGMENT

 

 

The plaintiff put forth a prima facie case for possession and rent of $1,650 through July 2009. A valid Notice to Quit was delivered. Brianna Freeman appeared for trial. The monthly rent is $800.

The defendant testified that she has a defective tub which does not drain. She further testified that this is an ongoing problem and that she informed the plaintiff of this problem on numerous occasions since February 2009. This is a breach of the implied warranty of habitability entitling the defendant to a 5% abatement in the rent since February or $240. (5% of $800 x 6 months).

Pursuant to M.G.L.c. 239 s. 8A the defendant shall have 7 days from receipt of this decision to pay $1,410 into court by bank check or money order made out to the plaintiff. If such is done, judgment for possession shall enter for the defendant. If such is not done, judgment shall enter for the plaintiff for possession and rent of $1,410 through July 2009 plus costs.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

MICHAEL JOUBERT, Plaintiff v. BOBBY BROWN, CHRIS KATENAS and ELSA THOMAS, Defendants

 

 

Worcester Division

 

 

Docket # No. 09-SP – 2015

 

 

Parties: MICHAEL JOUBERT, Plaintiff v. BOBBY BROWN, CHRIS KATENAS and ELSA THOMAS, Defendants

 

Judge: /s/DIANA H. HORAN, First Justice

 

Date: July 20, 2009

 

FINDINGS RULINGS AND ORDER FOR JUDGMENT

 

The plaintiff put forth a prima facie case for possession and rent of $3,230 through July 2009. A valid Notice to Quit was issued. The monthly rent is $800.

The defendants testified to numerous code violations and provided Board of Health reports to confirm these. Most of these conditions the plaintiff knew or should have known about. These conditions in their entirety result in an interference with quiet enjoyment entitling the defendants to statutory damages of three times the monthly rent or $2,400. See M.G.L.c. 186 s. 14.

Pursuant to M.G.L.c. 239 s. 8A the defendants shall have 7 days from receipt of this decision to pay $830 into Court by bank check or money order made out to the plaintiff. if such is done, judgment for possession shall enter for the defendants. If such is not done, judgment shall enter for the plaintiff possession and rent of $830 plus costs.

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

PAUL GAUCHER, Plaintiff v. TIMOTHY LEAHY, Defendant

 

 

Worcester Division

 

 

Docket # No. 09-SP-1887

 

Parties: PAUL GAUCHER, Plaintiff v. TIMOTHY LEAHY, Defendant

 

Judge: /s/DIANA H. HORAN, First justice

 

Date: July 22, 2009

 

RULING ON MOTION FOR SUMMARY JUDGMENT

 

At the close of the plaintiffs case the defendant moved for summary judgment. Based upon the evidence presented, judgment must enter for the defendant for possession, and pursuant to M.G.L.c. 93A, a $25 statutory award and a reasonable attorney’s fee. This is the case because the plaintiff admitted that there was no written agreement as to the payment of utilities by the defendant in violation of the State Sanitary Code.

Judgment for the defendant for possession and $25 plus a reasonable attorney’s fee.

 

 

 

 

End Of Decision

 

HOUSING COURT

WILLIAM NICKOLS, JR., Plaintiff v. MATTHEW R. INGRAM, Defendant

 

Worcester Division

 

 

Docket # No. 09-SP – 2175

 

Parties: WILLIAM NICKOLS, JR., Plaintiff v. MATTHEW R. INGRAM, Defendant

 

Judge: /s/DIANA H. HORAN, First Justice

 

Date: July 24, 2009

 

FINDINGS RULINGS AND ORDER FOR JUDGMENT

 

The Plaintiff put forth a prima facie case for possession and rent of $1,480 through July 2009. A valid Notice to Quit was served. The monthly rent is $370.

The defendant testified that there are defective conditions within his unit. A Board of Health report dated July 14 supports the fact that the defendant’s unit has no heat, no second means of egress, and no smoke detectors or carbon monoxide detectors. The violations rise to the level of an interference with the quiet enjoyment. Pursuant to M.G.L. c. 186 s. 14 the defendant shall be credited with statutory damages of three times the monthly rent of $1,110.00.

Pursuant to M.G.L.c. 239 s. 8A the defendant shall have 7 days from receipt of this decision to pay $370 ($1,480 – $1,110) into Court by bank check or money order made out to the plaintiff. If such is done, judgment shall enter for the defendant for possession. If such is not done, judgment shall enter for the plaintiff for possession and $370 in rent plus costs.

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

ALEXIS BENANDER and DALE BENANDER, Plaintiffs v. JOE BARONE and KIM BARONE, Defendants

 

 

Worcester Division

 

 

Docket # No. 09-SP – 2297

 

Parties: ALEXIS BENANDER and DALE BENANDER, Plaintiffs v. JOE BARONE and KIM BARONE, Defendants

 

Judge: /s/DIANA H. HORAN, First Justice

 

Date: July 24, 2009

 

FINDINGS RULINGS AND ORDER FOR JUDGMENT

 

The Plaintiff put forth a prima facie case for possession and rent of $2,750 through July 2009 plus costs. A valid Notice to Quit was served. The monthly rent is $1,375.

The defendant testified that there were defective conditions in the unit. She further testified that she told the plaintiff about them on May 12, but at that time she owed May rent. She has since paid May rent, but not June and July. All of the violations were corrected by June 30.

The conditions were a breach of the implied warranty of habitability entitling the defendant to 10% ($137.50) for the rent for June.

Pursuant to M.G.L.c. 239, s.8A the defendant shall have 7 days from receipt of this decision to pay $2,612.50 into Court by bank check or money order made out to the plaintiff. If such is done, judgment shall enter for the defendant for possession. If such is not done, judgment shall enter for the plaintiff for possession and rent of $2,612.50 plus costs.

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

WILLIAM ZENON, Plaintiff v. TIFFANY ALICANDRO and RICHARD KINNEY, Defendants

 

 

Worcester Division

 

 

Docket # No. 09-SP – 1356

 

Parties: WILLIAM ZENON, Plaintiff v. TIFFANY ALICANDRO and RICHARD KINNEY, Defendants

 

Judge: /s/DIANA H. HORAN, First Justice

 

Date: June 4, 2009

 

FINDINGS RULINGS AND ORDER FOR JUDGMENT

 

The plaintiff put forth a prima facie case for possession and rent of $4,508 through June 1, 2009. A valid Notice to Quit was delivered. The rent for this single family home is $400 a week.

The defendants said they are not paying rent because their kitchen sink is clogged. This is the second summary process action involving these parties since the tenancy began ten months ago. The Court finds that the defective kitchen sink, to the extent it exists, is diminimus in nature and does not rise to the level of a breach of the implied warranty of habitability.

Judgment for the plaintiff for possession and $4,508 through June 1, 2009 plus costs.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

NORTHEAST PROPERTIES, Plaintiff v. WILLIAM HANNON Defendant

 

 

Worcester Division

 

 

Docket # No. 09-SP -01396

 

Parties: NORTHEAST PROPERTIES, Plaintiff v. WILLIAM HANNON Defendant

 

Judge: /s/DIANA H. HORAN, First Justice

 

Date: May 26, 2009

 

FINDINGS RULINGS AND ORDER FOR JUDGMENT

 

The plaintiff put forth a prima facie case for possession and rent of $1,864 ($1,978 – $114.00 as an average for electric) through May 2009. A valid Notice to Quit was delivered. The monthly rent is $750.

The defendant asserted several defenses and counterclaims. A Board of Health report dated March 31, 2009 and an inspection done by a Housing Specialist of this Court, confirms several defective conditions within the dwelling. These conditions are a breach of the implied warranty of habitability entitling the defendant to a 20% ($150) abatement in the monthly rent since April 2009 or $300 total.

Pursuant to M.G.L.c. 239 s. 8A the defendant shall have 7 days from receipt of this order to pay $1,564 into Court by money order or bank check made out to the plaintiff. If such is done, judgment shall enter for the defendant for possession. If such is not done, judgment shall enter for the plaintiff for possession and $1,564 in rent through May 2009 plus costs.

 

 

 

 

 

 

End Of Decision