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Housing Court Cases – Judge Dina Fein, Western Division

HOUSING COURT

WILLIAM APONTE, Vs. ALEKSANDAR B. BRANCIC

 

WESTERN DIVISION

 

Docket # 02-CV-00087

Parties: WILLIAM APONTE, Vs. ALEKSANDAR B. BRANCIC

Judge: /s/Dina E. Fein

Associate Justice

Date: October 26, 2004

FINDINGS, RULINGS, AND ORDER

 

The above-captioned matter came before the court for trial on September 21 and 28,2004, after which the following findings of fact and rulings of law are to enter, as provided for under Mass. R. Civ. P. 52(a):

 

FINDINGS OF FACT

 

1 . The events which gave rise to this litigation occurred in March, 2002, at which time the plaintiff William Aponte (Mr. Aponte) resided in an apartment building owned by the defendant Aleksandar Brancic (Mr. Brancic). At specific issue is a “no trespass” notice which Mr. Brancic issued as to Mr. Aponte’s girlfriend on March 3, 2002, and revoked 9 days later. Mr. Aponte claims that issuance of the “no trespass” order interfered with his quiet enjoyment, was in reprisal against him for various protected activities, and constituted an unfair and deceptive trade practice. Mr. Brancic argues that the “no trespass” order was justified and, in any event, revoked in such short order as to deprive Mr. Aponte of any claim for damages. As the background interactions between the parties inform the ruling herein, they will be addressed, as follows:

2. Mr. Aponte moved into the Mr. Brancic’s building on July 5, 2001. The parties agreed to

 

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rent in the amount of $395 per month. Several months into this tenancy, Mr. Aponte began seeing a woman named Luz Soto. Ms. Soto and her two daughters visited with Mr. Aponte at his apartment 2 or 3 times per week, including overnight on alternate weekends, when the girls would stay with friends who lived in the same building.

 

3. In December, 2001, Mr. Aponte began withholding rent, allegedly due to substandard conditions at the premises.[1] Sometime thereafter, the Holyoke Board of Health inspected the

premises, and cited the landlord for State Sanitary Code (“Code) violations, some of which were deemed emergencies. Following reinspections, the Board of Health initiated criminal

proceedings against the landlord in this court. By notice dated February 28, 2002 the Clerk’s office scheduled the criminal case for a show case hearing on March 12, 2002.

4. On or around January 13, 2002, Mr. Brancic served and Mr.

Aponte received a 14 day notice to quit for nonpayment of rent. A summary process action followed, which was tried on February 28, 2002, the same day on which the court issued notice of the show cause hearing. Both Mr. Aponte and Ms. Soto testified at the summary process trial, Ms. Soto’s testimony focusing on various photographs which depicted conditions at the premises, and were entered into evidence.

 

5. It is against this backdrop that the events of Saturday, March 2 and Sunday, March 3, 2002 occurred. Ms. Soto spent Saturday night at Mr. Aponte’s apartment, and her daughters stayed elsewhere in the building. Although the parties dispute precisely how the events unfolded

 

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[1] Mr. Aponte’s claims concerning conditions at the premises were adjudicated in previous litigation between the parties, Alexander (sic) Brancic v. William Aponte, Western Division Housing Court, #02-SP-0466, Abrashkin, J. Mr. Aponte’s rent withholding is therefore mentioned only by way of background to the events which gave rise to this litigation.

 

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the next morning, I find, based upon my assessment of the witnesses’ credibility and demeanor ~evidence, that the following occurred:

6. On Sunday morning, Mr. Aponte and Ms. Soto were watching television. Mr. Brancic came to the apartment and gave Mr. Aponte a written “notice of violation,” setting forth various alleged violations by Mr. Aponte of his lease. Mr. Brancic was familiar with Ms. Soto, having previously observed her at the premises in Mr. Aponte’s company, and as a witness at the summary process trial several days earlier. Nevertheless, Mr. Brancic questioned Ms. Soto, who was still wearing her pajamas at the time, asking her who she was, and informing her, in effect, that she did not have the right to be there.

7. Mr. Aponte and Ms. Soto argued with Mr. Brancic, who informed them that he was delivering notices of lease violations to other tenants as well. In preparing and delivering these notices, Mr. Brancic was motivated in large part by his concern over the Code violations for which he had been cited by the Holyoke Board of Health, the upcoming show cause hearing, and the need to make repairs and remedy the substandard conditions, some of which were attributable to the tenants. Ms. Soto indicated that she wanted to see whether he was giving notices to other tenants, and followed him to Vanessa Bernard’s unit, where a group of individuals, including other tenants of the building, were gathered. Mr. Brancic delivered a “notice of violation” to Ms. Bernard. As he was doing so, Ms. Soto indicated that she and Mr. Aponte were going to call Juana Massa, the Board of Health agent who had inspected the building. Mr. Brancic interpreted Ms. Soto’s remarks as encouraging Ms. Bernard not to cooperate with his efforts to have the tenants

correct violations for which they were responsible, objected to Ms. Soto’s involvement, and asked for her name. Mr. Aponte and Ms. Soto declined to provide her name, which was eventually provided to Mr. Brancic by another tenant in the building, Elsa Beardly.

 

 

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8. After his confrontation with Ms. Soto and Mr. Aponte, Mr. Brancic was “all shook up.” After consulting with other landlords, and based upon his assessment that Ms. Soto was not a tenant and therefore did not have any right to be at the premises, he went to the police station and obtained a “no trespass” notice. Mr. Brancic then returned to Mr. Aponte’s building, delivered the “no trespass” notice to Ms. Soto, and told her that she must leave within 2 hours. Ms. Soto did not leave the premises. Mr. Brancic returned to the building again, saw Ms. Soto’s car there, and called the police.

9. Police officers came to the building, informed Ms. Soto that she was required to leave the premises, and escorted her out. Ms. Soto was upset, embarrassed, and crying. Although the “no trespass” order was revoked nine days later, Ms. Soto never returned to the building. This had an adverse effect on the relationship between Ms. Soto and Mr. Aponte. Pursuant to the decision in the summary process case between the parties, which entered on March 15, 2002, Mr. Aponte recovered a judgment in his favor for possession of the premises. He nevertheless vacated the premises on June 4, 2002, in part because Ms. Soto did not feel comfortable returning to the building following receipt of the “no trespass” notice in March. 10. When Mr. Aponte vacated the premises on June 4, 2002, the parties agreed that rent totaling $592 was unpaid through May, and that Mr. Aponte would pay the arrearage at the rate of $ 100 per month. Mr. Aponte failed to make any such monthly payments. Mr. Brancic was required to do minor cleaning of the premises after Mr. Aponte vacated, including removing plastic stars which were stuck onto one ceiling. Mr. Brancic was also required to remove a desk, bedframe, and end table which Mr. Aponte left behind, as well as arrange for restoration of gas service to the premises. Mr. Brancic incurred expenses totaling $310 for repairs and cleaning, beyond ordinary wear and tear, when Mr. Aponte vacated.

 

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RULINGS OF LAW

 

11. Interference With Quiet enjoyment: Mr. Aponte alleges that Mr. Brancic’s conduct in obtaining and enforcing a “no trespass” order against Ms. Soto constituted interference with quiet

enjoyment in violation of G.L. c. 186, s. 14, which prohibits a landlord from “directly or indirectly interfer[ing] with the quiet enjoyment of any residential premises by the occupant.”

The covenant of quiet enjoyment protects a tenant’s right to

freedom from serious interferences with his tenancy, from acts or omissions that “impair the character and value of the leased

premises.” Simon v. Solomon, 385 Mass. 91,102,431 N.E.2d 556,565 (1982), quoting Winchester v. O’Brien, 266 Mass. 33, 36,164 N.E. 807 (1929). “[T]o support the imposition of liability under the quiet enjoyment statute, there must be a showing of at least negligent conduct by a landlord” Al-Ziab v. Mourgis, 424 Mass. 847, 851, 679 N.E.2d 528, 530 (1997).

12. As measured against the proper legal standard, it is clear that Mr. Brancic’s conduct breached the covenant of quiet enjoyment. Visiting with family and friends is among the defining activities which make a place “home,” and Mr. Brancic, at least temporarily, interfered with Mr. Aponte’s right to that experience. Having Ms. Soto as his guest at the premises was central to the character and value of Mr. Aponte’s tenancy, and barring this guest from the premises, as was the consequence of Mr. Brancic’s “no trespass” order, severely degraded the value of that tenancy.

13. The court must also conclude that Mr. Brancic was “at least negligent” with respect to the “no trespass” order, and did not act as a reasonable landlord in his situation. Mr. Brancic is a professional landlord, and had been in the residential rental business for a number of years before the events complained of herein. He had pending in court a summary process case with Mr.

Aponte, in which Ms. Soto was a witness, as well as a Code Enforcement proceeding with the

 

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Board of Health. Even crediting, as I do, Mr. Brancic’s testimony that, in seeking to bar Ms. Soto from the premises, he was motivated by his perception that she was interfering with his efforts to correct Code violations, Mr. Brancic knew or should have known that there were alternative methods for stopping the alleged interference, including by petitioning the court in one of his two pending cases. Rather than using a tool reasonably calculated to protect his legitimate interest in making repairs, Mr. Brancic invoked an overly broad and intrusive remedy, the effect of which was not merely to insure against interference by Ms. Soto, but was also to ban Ms. Soto from Mr. Aponte’s unit, over which Mr. Aponte had exclusive possession, and where she was welcome. If Mr. Brancic did not know better than to do this, he should have. 14. Mr. Brancic’s conduct did not, however, rise to the level of being “outrageous.” Mr. Brancic was very agitated, worried about his building and exposure in the Code Enforcement proceeding, and frustrated by his inability to deal with Mr. Aponte. His response to these various stressors was not motivated, in my view, by a gratuitous desire to harm Mr. Aponte, although it was seriously misguided. In addition, Mr. Brancic did revoke the “no trespass” after nine days. While his doing so did not have the effect of restoring Mr. Aponte’s tenancy to its original character, this was due in significant part to Ms. Soto’s personal and unforeseeable response to the experience, namely to avoid the premises thereafter. Mr. Aponte not having proved consequential damages in excess thereof, he is therefore entitled under G.L. c. 186, s.14 to

an award of three months’ rent, or $1,185, plus attorney’s fees and costs.

15. Reprisal: Within six months prior to Mr. Brancic’s service of the “no trespass” order against Ms. Soto, Mr. Aponte had engaged in at least four protected activities: complaining in writing about substandard conditions at the premises; withholding rent; contacting the Board of Health; and pursuing defenses and counterclaims in his summary process case. As indicated

 

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above, service of the “no trespass” order constituted a substantial, if temporary, alteration in the

terms of Ms. Aponte’s tenancy. This sequence of events gives rise to a rebuttable presumption, under G.L. c. 186, s. 18, that Mr. Brancic’s action was in reprisal (retaliation) against Mr. Aponte

for his protected activity. The presumption is rebutted only upon clear and convincing evidence that Mr. Brancic’s action was not in reprisal, that he had sufficient independent justification for

taking this action, and that he would in fact have taken the action, in the same manner and at the same time, notwithstanding the protected activity.

16. Mr. Brancic’s explanation with respect to the “no trespass” order does not suffice to rebut the presumption of reprisal. I credit Mr. Brancic’s testimony that the events which occurred at the premises on March 3, 2002, in the context of his then pending legal actions, left him “all shook up.” I believe that he was worried about his building and his business, and that he

subjectively believed Ms. Soto was interfering with his rights and responsibilities as a landlord.Mr. Brancic’s testimony itself makes it clear, however, that he has not rebutted the presumption

of reprisal; he would not have obtained the “no trespass” order but for the pending Code Enforcement action, the trigger for which was Mr. Aponte’s protected activity in contacting the Board of Health. No other justification for a “no trespass” order against Ms. Soto, such as alleged illegal activity on her part at the premises, was offered. It is clear that Mr. Brancic wanted Ms. Soto away from the property precisely because of his perception that she was playing

a role in the Code Enforcement process which, even if true, was protected, and not an independent justification for a “no trespass” order.

17. As a result of Mr. Brancic’s reprisal, Mr. Aponte is entitled to an award of between one and three months’ rent. I am exercising my discretion to award the minimum amount, or one month’s rent. Although he exercised poor judgment, I do not believe that the action Mr. Brancic

 

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took was motivated by an intention to retaliate per se. I am also mindful that the Holyoke Police Department assisted Mr. Brancic in utilizing the “no trespass” order the way he did, thereby lending support to an ill-advised approach. Pursuant to G.L. c. 186, s. 18, Mr. Aponte is therefore awarded $395, plus attorney’s fees and

costs. 18. Unfair and Deceptive Trade Practice: The record does not establish that Mr. Brancic committed a “willful” violation of G.L. c. 186, s. 14 (interference with quiet enjoyment), but rather only that Mr. Brancic’s action was “at least negligent.” Under the Attorney General’s regulations, however, it is an unfair and deceptive trade practice, in violation of G.L. c. 93a, for a landlord to “[r]etaliate or threaten to retaliate in any manner against a tenant for exercising or attempting to exercise any legal rights as set forth in M.G.L. c. 186, s. 18.” 940 CMR 3.17(6)(b). In serving Ms. Soto with a “no trespass” order, Mr. Brancic violated G.L. c. 186, s. 18, the Attorney General’s regulation quoted herein, and G.L. c. 93a. Mr. Aponte served Mr. Brancic with a proper demand latter under G.L. c. 93a, s.9, thereby satisfying the statutory prerequisites to suit. Mr. Brancic responded timely to the demand letter, and offered settlement in the amount of $700, less unpaid rent of $592. 19. Mr. Aponte’s actual damages under Chapter 93a are coextensive with his damages in the underlying claim giving rise to the unfair and deceptive trade practice, here G.L. c. 186, s. 18. G.L. c. 93a further provides that the court will award “up to three but not less than two times” the actual damages, upon a finding “that the use or employment of the act or practice was a willful or knowing violation of [the statute] or that the refusal to grant relief upon demand was made in bad faith…” G.L. c. 93a, s.9(3). Mr. Brancic’s response to Mr. Aponte’s demand letter was not made in bad faith. The question of whether Mr. Aponte’s 93a damages are subject to a multiplier turns, therefore, on whether Mr. Brancic’s violation of the statute was willful or

 

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knowing, a conclusion determined by his knowledge, or disregard, of the facts, not the law.

20. In this case, Mr. Brancic knew that Ms. Soto was a welcome guest of Mr. Aponte, that Mr. Aponte had engaged the Board of Health in a Code Enforcement process, and that both Mr. Aponte and Ms. Soto had testified at the summary process trial just days earlier. In obtaining the “no trespass” order, Mr. Brancic clearly knew that he was acting against the wishes of Mr. Aponte and Ms. Soto, and willfully persisted in so doing. Mr. Brancic’s deliberate decision to invoke the “no trespass” order under these circumstances requires an award of multiple damages, irrespective of whether he specifically knew that in so doing he was violating G.L. c 186, s. 18. “Neither the failure of the defendant to apprise himself fully of the law, nor his misapprehension of what he did know about his obligations, is sufficient in the circumstances to negate the conclusion that his conduct runs afoul of the penalty provisions of G. L. c. 93a…” Montanez v. Bagg, 24 Mass. App. Ct. 954 (1987). The court awards double damages, or $790, plus costs and attorney’s fees, subject to one recovery with claims under G.L. c. 186, s. 18.

21. June’s Rent. A final dispute between the parties concerns whether Mr. Aponte is liable for rent for June, 2002, having vacated the premises on June 4, 2002. The parties agreed on June 4,

2002 that Mr. Aponte owed $5 92 for March, April and May rent, which he would repay in monthly installments of $ 100. Mr. Aponte failed to make any such payments. As such, the parties had an accord, but no satisfaction, and are not bound by their agreement of June 2. Mr. Aponte is therefore liable to pay use and occupancy through June 4, the day on which he actually vacated the premises. [2] The total unpaid rent/use and occupancy is $592 through May, 2002 plus

 

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[2] Mr. Brancic does not argue that Mr. Aponte failed to give proper notice terminating the tenancy, but rather that Mr. Aponte did not follow through with the repayment agreement.

 

 

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$13.47 (daily rate) x 4 = $53.88 = $645.88 [3]

 

21. Conclusion: Based upon the foregoing, the plaintiff Mr. Aponte is awarded $1185 + 790= $1975 (Mr. Aponte’s damages) – $645.88 (unpaid rent) + $3 10 (move out repairs) = $95 5.88 (Mr. Brancic’s damages) = $1019.12, plus costs and attorney’s fees. Counsel for the plaintiff shall have ten days from the entry date of this order in which to file and serve his petition for

costs and attorney’s fees. Mr. Brancic shall have ten days thereafter in which to file his opposition, if any. The court will then rule on the papers, after which final judgment will enter.

 

So entered this 26th day of October, 2004.

 

 

 

cc: Michael Gove

Law Clerk

 

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[3] The record appears to indicate that the fair rental value of the premises returned to the contract rate of $395 effective with May’s rent, up from the reduced rate established at the summary process trial for March and April.

 

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End Of Decision

 

HOUSING COURT

WARE HOUSING AUTHORITY v. PATRICIA O’CONNELL

 

WESTERN DIVISION

 

Docket # DOCKET NO. 03-SP-04455

Parties: WARE HOUSING AUTHORITY v. PATRICIA O’CONNELL

Judge: /s/Dina E. Fein

Associate Justice

Date: February, 2005

RULING AND ORDER FOR ENTRY OF JUDGMENT

 

1. The question before the court is whether the amount paid for use and occupancy by an income ineligible occupant of family public housing may exceed the fair value of the premises? For the reasons set forth below, the court rules that it may not, and enters judgment for the plaintiff for possession and $11,481.98.

 

2. The case came before the court on stipulated facts, in pertinent part as follows: The plaintiff, Ware Housing Authority (“WHA”) is a public body politic and corporate organized and existing under the provisions of G.L. c. 121B, s.3, which operates a public housing project regulated by state law. On September 15, 2000, the defendant (“Ms. O’Connell”) moved into a family unit owned by WHA, pursuant to a written lease which provided, inter alia, that Ms. O’Connell was to report all increases in income within 7 days. The lease also provided that Ms. O’Connell was to provide accurate information as to household income annually, on the basis of which WHA would determine, among other things, whether her income was “still within the limits for continued occupancy.”

 

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3. When Ms. O’Connell moved into the WHA unit, she was unemployed, and the only income she received and reported was child support. Thereafter, Ms. O’Connell recertified her income on an annual basis, through 2004, at all times reporting only child support. In fact, however, Ms. O’Connell became employed in October, 2001, and remained employed until October, 2003. Ms. O’Connell had earned income for the years 2001, 2002, and 2003, which she failed to report to WHA. She also received retirement account distributions in 2002, and unemployment benefits in 2003 and 2004, which she also failed to report to WHA.

 

4. At or around the end of 2003, WHA discovered that Ms. O’Connell had unreported income, and terminated her tenancy for nonpayment of rent. The total amount of unreported income, however, was only determined in the course of this summary process case. Ms. O’Connell having vacated the subject premises, the parties’ dispute now comes down to this: WHA argues that Ms. O’Connell is liable for rent, or use and occupancy, in the amount of 27% of her monthly net household income for each month of her occupancy, irrespective of whether that formula results in rent which exceeds the fair market rent (“FMR”) for the unit as determined by the Department of Housing and Urban Development (“HUD”); Ms. O’Connell argues that her monthly obligation is capped by the FMR, irrespective of her income.

 

 

5. Two provisions of the operative regulations inform the court’s analysis. The first provides that “rent shall be 27% of monthly net household income.” 760 CMR s.6.04(1)(b)(3).[1] The second provides that “[f]ollowing termination of the lease, if tenant fails to vacate, tenant shall pay monthly, in advance, the fair value of

use and occupancy of the unit as determined by the LHA…” 760 CMR s.6.04(2)(b). Principles of statutory construction require that these

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[1] This percentage applies to tenants of family housing who pay for all utilities. The parties agree that Ms. O’Connell was in this category.

 

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provisions “be read together to create `an harmonious whole consistent with the legislative purpose…’ Butts v. Zoning Bd. of Appeals of Falmouth 18 Mass.App.Ct. 249, 252, 464 N.E.2d 108, 111(1984) quoting Registrar of Motor Vehicles v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 382 Mass. 580, 585, 416 N.E.2d 1373 (1981).[2] The effect of these regulations, read harmoniously, is that had Ms. O’Connell timely reported her increased income in October, 2001, and her tenancy been terminated based upon income ineligibility, she would thereafter have been liable for the fair value of use and occupancy until such time as she vacated. Similarly, had WHA discovered earlier that Ms. O’Connell had unreported income, and terminated her tenancy for lease violations, she would thereafter have been liable for the fair value of use and occupancy until such time as she vacated. The circumstances of this case do not mitigate for a different result under the regulations.

 

6. WHA argues that Ms. O’Connell should not receive the “benefit” of any cap on her rent obligation, beyond the 27% formula, as to do so would create an incentive for public housing tenants to withhold income information. On this point, WHA argues compellingly that public housing is intended for income eligible tenants, whose access to a limited pool of units is impeded by income ineligible tenants who remain in occupancy. This unjust result is encouraged, WHA argues, if no sanction is imposed on ineligible tenants, particularly those who withhold the facts surrounding their ineligibility. While these arguments are indisputably sound as far as they go, WHA’s position falters on the further assertion that an ineligible occupant should therefore be liable for more than the fair value of the unit. In this way WHA would have the court read a sanction into the regulations. Whether and in what way to sanction a recipient of

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[2] General principles of statutory interpretation apply to a regulation adopted by an administrative agency.

 

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publicly funded benefits, including public housing, for withholding information which she is required to disclose and/or other failures to comply with program requirements, is a determination properly left

to the Legislature. WHA’s position herein would have the court preempt that legislative function, which the court is unwilling to do. It is not for the court to create a sanction not intended by the Legislature, nor for the court to determine that rent in excess of the fair value should be the measure of that sanction. To the extent that any statutes or regulations currently exist which create such sanctions, this ruling is without prejudice to WHA’s right to pursue remedies thereunder. To the extent that no such statutory or regulatory sanctions exist, it is not for the court to create them.

 

7. Finally, the court is mindful that s.6.04(2)(b) refers to the fair value of use and occupancy “as determined by the LHA [local housing authority].” While there may exist more than one way for the LHA to determine “fair value,” the only measure which has been put before the court is the HUD FMR. In the absence of any other evidence, the court will therefor adopt the figures provided by the parties at Exhibit H to their Agreed Statement of Facts.

 

8. Order for Entry of Judgment: Based upon the foregoing, the court hereby enters judgment in favor of the plaintiff for $11,481.98.

 

So entered this ______ day of February, 2005.

 

 

 

 

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End Of Decision

 

HOUSING COURT

MALONEY PROPERTIES, INC. v. MARIAN ELLIS,

 

BOSTON DIVISION

 

Docket # 05-SP-3575

Parties: MALONEY PROPERTIES, INC. v. MARIAN ELLIS,

Judge: /s/ Dina E. Fein,

Associate Justice

Date: February 23, 2006

ORDER

 

The above-captioned matter came before the court on February 23, 2006, at which time both parties appeared for hearing on the defendant’s (tenant’s) motion for reconsideration, after which the following order shall enter:

 

The tenant’s motion to “reduce payments on agreement” is allowed, to the limited extent set forth herein. The payments due on February 15 and March 15 (totaling $150) are deferred, pending further hearing on March 16, 2006 at 9:30 a.m. The tenant shall have until that date to secure unemployment benefits or another source of income with which to make the payments then due. Notwithstanding this ruling, the landlord may move for issuance of the execution based upon the tenant’s failure to comply with the parties’ agreement for judgment, which motion shall be joined for hearing on March 16.

 

So entered this 23rd day of February, 2006.

 

 

 

End Of Decision

 

HOUSING COURT

MIGUEL RIBEIRO, v. LUCINDO and ALL JOHN DOES

 

BOSTON DIVISION

 

Docket # DOCKET NO. 06-CV-00102

Parties: MIGUEL RIBEIRO, v. LUCINDO and ALL JOHN DOES

Judge: /s/ Dina E. Fein

Associate Justice

Date: February 22, 2006

ORDER TO VACATE

 

After hearing on February 22, 2006, at which the plaintiff appeared and the defendants failed to appear, the following order is to enter:

I find that the occupants of the basement unit at 123 Brook Avenue, Dorchester are there without right, never having established a tenancy with the plaintiff or his brother, or anyone acting thereunder. The defendant Lucindo, last name unknown, and all other occupants of the basement unit at 123 Brook Avenue, Dorchester are therefore ordered forthwith to vacate the premises. If the defendants have not vacated by March 1, 2006, a duly authorized officer may levy upon this order as if it were an execution issued pursuant to a summary process case under G.L. c. 239.

So entered this 22nd day of February, 2006.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

ANA RODRIGUEZ, Plaintiff v. KATERINA MASA and COTTAGE BROOK APTS./ GENE ZHITOMIRSKY, Defendants

 

BOSTON DIVISION

 

Docket # DOCKET NO. 06-CV-00087

Parties: ANA RODRIGUEZ, Plaintiff v. KATERINA MASA and COTTAGE BROOK APTS./ GENE ZHITOMIRSKY, Defendants

Judge: /s/ Dina E. Fein

Associate Justice

Date: February 22, 2006

ORDER

 

After hearing on February 22, 2006 at which the plaintiff and defendant Masa appeared, but the co-defendants failed to appear, the plaintiffs request for injunctive relief is allowed, as follows:

The pleadings are hereby amended so as to identify properly the defendant property manager as GENE ZHITOMIRSKY.

The tenants Ana Rodriguez and Katerina Masa, their guests and the members of their households are ordered not to have any contact with each other, whatsoever and by whatever means, except in the event of a bona fide emergency. All non-emergency issues and

complaints shall be communicated to the landlord.

The tenants are further ordered not to cause disturbances at the premises or otherwise disturb each other’s right to quiet enjoyment.

The defendant property manager, Gene Zhitomirsky, is ordered to respond promptly and effectively to any complaints from the tenants, and is ordered to enforce the provisions of their leases and their respective rights to quiet enjoyment.

The tenants are referred to the Tenancy Preservation Program (TPP), which is requested to assess whether services might be available to assist either or both of them, which would minimize their conflict and help in insuring compliance with this order. The tenants are instructed to cooperate with TPP.

The Clerk’s office is requested to schedule this matter for review in sixty days.

 

So entered this 22nd, day of February, 2006.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

HAZEL BURTHWRIGHT v. JOHNNIE HAWKINS

 

BOSTON DIVISION

 

Docket # DOCKET NO. 05-SP-01546

Parties: HAZEL BURTHWRIGHT v. JOHNNIE HAWKINS

Judge: /s/DINA E. FEIN

ASSOCIATE JUSTICE

Date: March 9, 2006

RULING AND ORDER ON PLAINTIFF’S MOTION TO DISMISS COMPLAINT WITHOUT PREJUDICE

 

After hearing on the plaintiff’s Motion to Dismiss Complaint Without Prejudice, and for the reasons set forth herein, the motion is DENIED.

 

1. In February, 2005, the plaintiff (landlord) brought a summary process case against the defendant (tenant), alleging as grounds for the sought eviction repeated violation of the lease, destruction of property, and disturbance of neighbors. That case was dismissed by joint stipulation of the parties. The pending summary process case was filed on April 22, 2005, alleging the same grounds as those raised in the previous case. The tenant filed an answer, raising a number of affirmative defenses to the case. The parties have engaged in written discovery, the tenant has been deposed twice, and the landlord’s deposition has been noticed. The case is scheduled for a pre-trial conference on March 15, 2006 and a three day jury trial beginning on April 10, 2006.

2. The landlord now moves for leave to dismiss without prejudice, seeking to preserve her right

 

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to bring a third summary process case on the same grounds as those alleged herein and previously, and based upon the same facts. The tenant opposes the landlord’s motion, seeking

dismissal with prejudice.

3. Mass. R. Civ. P. 41(a) provides for dismissal by the plaintiff, by stipulation, or by order of the court. Voluntary dismissal by the plaintiff or by stipulation “is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of this or any other state an action based on or including the same claim.” The court may dismiss “upon such terms and conditions as [it] deems proper.”

4. The Court understands that the landlord is elderly, has medical issues, and is disinclined at this point to shoulder the additional burdens, financial and otherwise, of proceeding with the balance of this litigation. Hers is no doubt a difficult situation, which the Court does not take lightly. The litigation burdens both parties, however, obviously including the tenant who has lived at the subject premises for 30 years and has been under threat of eviction twice in the past 14 months. Litigation always involves a cost-benefit analysis. While it is perfectly reasonable for the landlord to decide that the case is simply not “worth” pursuing at this point, it is not reasonable for her to expect a third bite at precisely the same apple.

5. In addition, and as was acknowledged at oral argument by the tenant (through counsel), dismissal with prejudice would not preclude a subsequent summary process case, nor even a subsequent summary process case on the same general grounds. Rather, dismissal with prejudice would operate as a determination on the merits of this case, on the facts as they existed up to the filing of the pending complaint. Lease violations which occurred thereafter,

 

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if any, or other grounds for eviction which arose thereafter, if any, would serve as fair game for a subsequent summary process case, even following dismissal of this one with prejudice.

6. Finally, counsel for the landlord argued that dismissal with prejudice would preclude the admission into evidence of the events which gave rise to this case, unfairly prejudicing the landlord’s right to show a pattern of behavior by the tenant. Whether evidence is admissible, however, is a different question than whether events are actionable. Potential evidentiary issues which might or might not arise in a case which might or might not be brought, are not properly before this Court, but are rather left for determination by the trial judge in any subsequent proceeding.

 

For these reasons, the plaintiff’s Motion to Dismiss Complaint Without Prejudice is DENIED. The plaintiff is free to proceed to trial. If she elects to dismiss, the dismissal must be with prejudice.

 

 

 

 

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End Of Decision

 

HOUSING COURT

JOHN CLAESSENS and MEGHAN BOBERTZ, Plaintiffs v. VIRGIL J. AIELLO, TRUSTEE OF VIRGIL AIELLO AND ROBERT AIELLO, et al, Defendants

 

BOSTON DIVISION

 

 

Docket # DOCKET NO. 03-CV-00540

 

Parties: JOHN CLAESSENS and MEGHAN BOBERTZ, Plaintiffs v. VIRGIL J. AIELLO, TRUSTEE OF VIRGIL AIELLO AND ROBERT AIELLO, et al, Defendants

 

Judge: /s/ DINA E. FEIN

ASSOCIATE JUSTICE

 

Date: April 11, 2006

 

RULINGS AND ORDER ON PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

 

The above-captioned matter came before the court on February 21, 2006, for hearing on the plaintiffs’ Motion for Summary Judgment. Upon consideration of the parties’ submissions and arguments, and for the reasons set forth herein, the plaintiffs’ motion is allowed in part and denied in part.

 

1. Undisputed Facts: The following facts are undisputed on the record before the court: In June, 2001, the plaintiffs (“tenants”) entered into a lease for the rental of an apartment located at 9 Charles Street, Apartment No. 2, Boston (“the property,” “the premises”). The lease was for an initial term of 14’/2 months, and continued thereafter from year to year unless terminated by either party thereto. The lease provided that the landlord would “furnish reasonably hot and cold water and reasonable heat…in accordance with applicable laws…” The contract rent for the premises was

 

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$1,650.00 per month. The tenants paid a last month’s rent of $1,650 at the inception of the tenancy.

 

2. On or around October 4, 2002, the defendant (“landlord”) purchased the property, subject to the tenants’ lease, at which time the original owners informed the tenants that their last month’s rent on deposit had been transferred to the landlord.

 

3. On or around November 17, 2002, the tenants contacted the City of Boston’s Inspectional Services Department (“ISD”), and complained of inadequate heat at the premises. On or around November 24, 2002, the ISD inspected the premises and noted several violations of the State Sanitary Code, including a defective smoke detector, insufficient electrical outlets, and windows which were not weather-tight. On or around November 24, 2002, the ISD also issued citations to the landlord, requiring repair of the smoke detector within 24 hours, and repair of the other substandard conditions within 30 days.

 

4. On or around January 15, 2003, the tenants complained in writing to the landlord about inadequate heat at the premises. On January 19, 2003, the ISD again inspected the premises, and issued an emergency violation to the landlord for insufficient heat, which required repair within 24 hours. On January 20, 2003, the ISD issued another emergency citation to the landlord, noting inadequate heat, and missing and defective smoke detectors at the premises, again requiring repair within 24 hours. On January 24 and 25, 2003, the ISD issued a vacate order, requiring that the tenants forthwith vacate the premises, and a notice of possible condemnation, which was scheduled for public hearing on January 28, 2003. On January 27, 2003, ISD again inspected the premises upon complaint by the tenants, and identified inadequate heat and no cold water in the kitchen sink. On January 27, 2003 the tenants also informed the landlord in writing of these conditions. The tenants relocated to alternative housing on or around January 27, 2003.

 

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5. On or around January 31, 2003, the tenants (through

counsel) sent and the landlord received, notice that the lease had been terminated by breach thereof and constructive eviction, and that the tenants would be vacating by midnight on February 4, 2003, which they did.

6. On or around March 3, 2003, the tenants (through counsel) sent, and the landlord received, a demand letter pursuant to G.L. c. 93a. The tenants paid rent through January, 2003.[1]

 

7. Summary Judgment Standard: Summary judgment is appropriate when no material facts are in dispute and the moving party is entitled to a judgment as a matter of law. Mass.R.Civ.P. 56(c); Highlands Ins. Co. v. Aerovox, 424 Mass. 226, 232, 676 N.E.2d 801 (1997). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue and the fact that it is entitled to a judgment in its favor. Pederson v. Time Inc., 404 Mass. 14, 16-17, 532 N.E.2d 1211(1989). The opposing party cannot rest on the pleadings or on mere assertions of disputed facts to defeat the summary judgment motion. “If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact …” Pederson, 404 Mass. at 17, 532 N.E.2d 1211. When reviewing a summary judgment record, the court credits facts in the light most favorable to the nonmoving party. Bisson v. Eck, 430 Mass. 406, 407, 720 N.E.2d 784 (1990); Gray v. Giroux, 49 Mass.App.Ct. 436, 437, 730 N.E.2d 338 (2000).

 

8. Breach of Contract: The lease between the parties required the landlord to furnish heat “in accordance with applicable laws.” The State Sanitary Code constitutes an “applicable law,” and required that ambient temperatures at the premises be maintained at not less than 68 degrees during the day, and not less than 64 degrees at night, during the heating season. The record before the Court

 

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[1] This is inferred from the amount of unpaid rent claimed in the landlord’s counterclaim.

 

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includes undisputed evidence, in admissible form, that the temperature in the tenants’ apartment did not meet the minimum requirements of the State Sanitary Code on occasions in November, 2002 and January, 2003, both of which months are within the heating season. The landlord’s bare denials or assertions to the contrary do not suffice under governing legal principles to create a legitimate dispute. Nor does the language in the lease purporting to preclude a claim for damages operate to defeat the tenants’ breach of contract claim; enforcing the language as advocated by the landlord would violate G.L. c. 186, s.15, and is deemed void as against public policy. The landlord is therefore liable, as a matter of law, for breach of contract.

 

9. Implied Warranty of Habitability: There is implied in every rental of residential premises a warranty that the premises are fit for human habitation. Boston Housing Authority v. Hemingway, 363 Mass. 184,196-97 (1973). A landlord is strictly liable for conditions

which breach the implied warranty of habitability; proof of fault is not required. Berman & Sons v. Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979).

 

10. Article II of the State Sanitary Code sets forth the minimum standards of fitness for human habitation. As indicated above, the tenants have offered undisputed evidence that there were conditions at the premises which violated the State Sanitary Code, and materially impaired the health or safety of the occupants (insufficient heat, defective smoke detectors, no water in the kitchen sink) at least during the period November, 2002 through January, 2003.[2] The landlord has offered no

 

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[2] At € 2 of his Objection to Plaintiff’s (sic) Motion for Summary Judgment,” the landlord states: “Even the claims of inadequate heat as noted in the City of Boston Inspector’s Reports are unproved…” This is not an accurate characterization of the record. The ISD reports have been offered in such form as would be admissible at trial (by operation of G.L. c. 111, s. 127E), and the evidence of inadequate heat has, therefore, been “proved.” Under Mass. R. Civ. P. 56, it was incumbent upon the landlord to offer countervailing evidence in an admissible form, and he has not done so.

 

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evidence to the contrary. The landlord is therefore liable as a matter of law for breach of the implied warranty of habitability.

 

11. Chapter 93a: A landlord is liable under G.L. c. 93a for a substantial and material breach of the implied warranty of habitability. Cruz Management Co., Inc. v. Thomas, 417 Mass. 782, 790, 633 N.E.2d 390, 395 (1994). The tenants (through counsel) sent and the landlord received a demand letter as required under Chapter 93a, thereby satisfying the procedural prerequisites to suit under the statute. Whether the landlord’s violation of Chapter 93a was “willful or knowing,” however, is for the finder of fact to determine. Id. In addition, whether the landlord failed to respond to the demand letter and/or failed to make a reasonable settlement offer, thereby giving rise to an independent violation of Chapter 93a, is disputed on the summary judgment record. (Defendant’s Response to Plaintiff’s (sic) Request for Admissions, €40.) The tenants are therefore entitled to a ruling that the landlord is liable under Chapter 93a as a matter of law, for breach of the implied warranty of habitability. The assessment of damages, the question of whether the damages should be multiplied, and the question of whether the defendant responded properly to the plaintiffs’ demand letter, shall remain for trial.

 

12. Interference with Quiet enjoyment: A landlord is liable for breach of the covenant of quiet enjoyment if his acts or omissions cause a serious interference with the tenancy, or substantially impair the character and value of the premises. G.L. c. 186, s. 14; Simon v. Solomon, 385 Mass. 91, 102, 431 N.E.2d 556, 565 (1982). “In analyzing whether there is a breach of the covenant, [the

court] examine[s] the landlord’s conduct, and not his intentions.” , 417 Mass. 273, 285, 630 N.E. 2d 248, 255(1994). A landlord may not intend to violate a tenant’s right to quiet enjoyment, but may nevertheless do so when the interference is a “natural and probable consequence of what the landlord

 

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did, what he failed to do, or what he permitted to be done.” Blackett v. Olanoff, 371 Mass. 714, 716 (1977). Although a showing of malicious intent in not required, “there must be a showing of at least negligent conduct by a landlord.” Al-Ziab v. Mourgis, 424 Mass. 847, 851, 679 N.E.2d 528, 530 (1997).

 

13. Construing all facts and inferences therefrom in favor of the landlord, as is required at the summary judgment stage, it cannot be said as a matter of law that the landlord was “at least negligent” with respect to the substandard conditions at the premises. The landlord’s affidavit avers, for example, that he “had the boiler checked by Alliance Services after Plaintiff complained of inadequate heat,” and “hired Mike Straccula from Beacon Services maintenance company to make repairs in Plaintiff’s apartment.” While these statements alone do not establish that the landlord acted reasonably, they do create sufficient dispute as to warrant deference to the well established principle that “reasonableness” is most properly decided by the finder of fact. The tenants are therefore not entitled to summary judgment on their claim for interference with quiet enjoyment.

 

14. Constructive Eviction: Constructive eviction requires “the intention and effect of depriving the tenant of the enjoyment of the premises demised…” Wesson v. Leone Enterprises, Inc., 437 Mass. 708, ,774 N.E.2d 611, 616 (2002). “The landlord’s acts must be of a character which `deprive the tenant permanently or for a substantial time of the enjoyment of the property.’ Northern Associates, Inc. v. Kiley, 57 Mass.App.Ct. 874,, 787 N.E.2d 1078, 1087 (2003), quoting Westland Hous. Corp. v. Scott, 312 Mass. 375, 382, 44 N.E.2d 959 (1942).

 

15. Unlike breach of the implied warranty of habitability, as to which the landlord is strictly liable, constructive eviction requires a showing of intent. In addition, the tenants are required to prove the extent of the deprivation flowing from the landlord’s conduct. While the undisputed facts

 

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(e.g. an order to vacate by ISD as a result of conditions for which the landlord had been cited on more than one occasion), would undoubtedly permit a jury to find the predicate elements of constructive eviction, they do not compel such a ruling in light of the, albeit minimal, evidence offered by the defendant regarding his response to the conditions. The Motion for Summary Judgment is therefore DENIED as to the constructive eviction claim.

 

16. Last Month ‘s Rent: The tenants allege that the landlord

has violated the last month’s rent provisions of G.L. c. 186, s.15B (“s.15B”) in two ways: by failing to inform the tenants in writing that he had received the last month’s rent as the successor in interest to the original owner; and by failing to refund the last month’s rent and interest thereon when the tenants vacated. The landlord, however, denies that he failed to notify the tenants as required under s.15B. (Response to Request for Admissions, € 42.) Although the landlord’s denial would not suffice to create a genuine dispute in and of itself, it arises in combination with the undisputed evidence that the tenants were notified of the transfer by the original owner. In addition, the landlord has raised a claim for unpaid rent under the lease, which would, if proved, justify withholding the last month’s rent. There being genuine disputes as to these issues, the tenants’ motion for summary judgment is denied as to their last month’s rent claim.

 

17. Intentional Infliction of Emotional Distress: A plaintiff seeking to recover for intentional infliction of emotional distress must establish the following:

 

(1) that the defendant intended to inflict emotional distress, or knew or should have known that emotional distress was the likely result of his conduct, … (2) that the defendant’s conduct was extreme and outrageous, beyond all possible bounds of decency and utterly intolerable in a civilized community, (3) the actions of the defendant were the cause of the plaintiffs distress, and (4) the emotional distress suffered by the plaintiff was severe and of such a nature that no reasonable person could be expected to endure it. Tetrault v. Mahoney, Hawkes & Goldings, 425

 

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Mass. 456, 466 (1997), quoting Payton v. Abbott Labs, 386 Mass. 540, 555 (1982).

 

18. In this case, neither the defendant’s intention nor the character of his conduct is established as a matter of law. While the record clearly and indisputably establishes the existence of substandard conditions at the premises during the relevant period, the extent of those conditions, the defendant’s intention with respect to their repair, and the actions he took to effectuate repairs, are all sufficiently disputed so as to require fact finding and credibility determination by the jury. The plaintiffs’ motion for summary judgment with respect to their claim for intentional infliction of emotion distress is, therefore, denied.

 

Ruling and Order: Based upon the foregoing, the following ORDER shall enter:

 

A. Partial judgment shall enter establishing the defendant’s liability for breach of contract, breach of the implied warranty of habitability, and violation of Chapter 93a. Damages shall be assessed by the fact finder at trial, or at such other hearing as ordered by the court.

 

B. The plaintiffs’ Motion for Summary Judgment is DENIED as to their claims for interference with quiet enjoyment, constructive eviction, violation of G.L. c. 186, s.15B, and intentional infliction of emotional distress.

 

SO ORDERED.

 

 

 

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End Of Decision

 

HOUSING COURT

WINGATE MANAGEMENT CO., INC., Plaintiff v. LUISA CASTILLO, Defendant

 

BOSTON DIVISION

 

 

Docket # SP DOCKET NO. 06-2231

 

Parties: WINGATE MANAGEMENT CO., INC., Plaintiff v. LUISA CASTILLO, Defendant

 

Judge: /s/ DINA E. FEIN,

ASSOCIATE JUSTICE

(Signed in her absence to avoid delay)

 

Date: August 29, 2006

INTERIM ORDER

The above-captioned matter came before the court on August 24, 2006, for hearing on the defendant’s (tenant’s) motion to dismiss, at which time the parties stipulated that: the plaintiff (landlord) did not provide a copy of the Notice to Quit to Mass Housing; the occupancy agreement between the parties requires notices of termination to include a statement that the resident has a “right to a reasonable accommodation;” and the termination notice sent to the tenant did not include notice of a right to reasonable accommodation.

The aforementioned facts having been stipulated, the motion to dismiss is scheduled for further hearing on September 14, 2006 at 9:00 a.m. The landlord’s opposition, if any, shall be filed and served on or before September 7, 2006, and the tenant’s reply, if any, shall be filed and served on or before September 10, 2006.

 

SO ORDERED.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

1810 REALTY GROUP, Plaintiff v. WINSOM WRIGHT, Defendant

 

BOSTON DIVISION

 

 

Docket # DOCKET NO. 06-SP- 00294

 

Parties: 1810 REALTY GROUP, Plaintiff v. WINSOM WRIGHT, Defendant

 

Judge: /s/ DINA E. FEIN,

ASSOCIATE JUSTICE

(Signed in her absence to avoid delay)

 

Date: August 29, 2006

ORDER ON DEFENDANT’S MOTION TO COMPEL

 

The above-captioned matter came before the court on August 24, 2006, for hearing on the defendant’s (tenant’s) motion to compel, after which the following order is to enter:

 

1. Within ten days of hearing, the plaintiff (landlord) shall supplement its response to interrogatory number 23, by providing the account number in question, and responding to subpart

2. Within twenty days of hearing, the landlord shall serve its supplemental response to interrogatory number 14, if any.

 

SO ORDERED.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

CUSHING CONSTRUCTION MANAGEMENT, INC., Plaintiff v. CYNTHIA SALTALAMACCHIA, Defendant

 

BOSTON DIVISION

 

 

Docket # DOCKET NO. 06-SP- 01510

 

Parties: CUSHING CONSTRUCTION MANAGEMENT, INC., Plaintiff v. CYNTHIA SALTALAMACCHIA, Defendant

 

Judge: /s/ DINA E. FEIN,

ASSOCIATE JUSTICE

(Signed in her absence to avoid delay)

 

Date: August 29, 2006

ORDER ON PLAINTIFF’S MOTION FOR EXECUTION

 

The above captioned matter came before the court on August 24, 2006, for hearing on the plaintiff’s (landlord’s) motion for execution, after which the following order is to enter:

 

1. The landlord’s motion is allowed. The execution shall issue for possession, unpaid rent in the amount of $968.00, and costs in the amount of $176.00.

2. There shall be a stay on the use of the execution, conditioned upon the following:

3. The defendant (tenant) shall pay future rent when due (by the 5th of the month), and shall make arrears payments of $30.00 per month on September 22, 2006, October 20, 2006, and November 24, 2006, per the parties’ agreement dated May 25, 2006.

4. The tenant shall make up her July and August rent and arrears payments ($66 + $66 + $30 + 30 = $192) upon receipt of her retroactive SSDI payment, or by November 24, 2006, whichever comes first.

5. The tenant is referred to the Tenancy Preservation Program (TPP) with the request that TPP

 

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assist in obtaining a Representative Payee for the tenant’s anticipated SSDI benefits, and providing such other services as are deemed necessary. The tenant is ordered to cooperate with TPP.

SO ORDERED.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

BOSTON HOUSING AUTHORITY, Plaintiff v. BETTY SMITH

 

BOSTON DIVISION

 

Docket # DOCKET NO. 06-SP-01978

Parties: BOSTON HOUSING AUTHORITY, Plaintiff v. BETTY SMITH

Judge: /s/DINA E. FEIN, ASSOCIATE JUSTICE (Signed in her absence to avoid delay)

Date: August 31, 2006

RULING AND ORDER ON DEFENDANT’S MOTION TO WAIVE APPEAL BOND AND OTHER COSTS

 

The above-captioned summary process (eviction) case came before the court on August 24, 2006, for hearing on the defendant’s motion to waive appeal bond and other costs. After hearing, the motion is allowed in part and denied in part, as follows:

The tenant’s motion to waive the costs of her appeal is allowed. The motion to waive the appeal bond is denied. The tenant is required to pay current use and occupancy (rent) when due, pending her appeal. In addition, bond is set at the rate of one month’s rent, payable in addition to current rent, for each month that the appeal is pending. The second monthly payment shall be due on or before the 25th of each month.

SO ORDERED.

 

 

 

 

cc: Wilbur E. Commodore, Esq.

Boston Housing Authority

52 Chauncy Street

Boston, MA 02111

 

Ms. Betty Smith

92 Monument Street, Apt 180

Charlestown, MA 02129

 

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End Of Decision

 

HOUSING COURT

RADAR REALTY ENTERPRISES, INC., Plaintiff v. HENRY JOHNSON AND MARILYN JOHNSON, Defendants / MARILYN JOHNSON, Plaintiff v. MARGARITA FLECHA, Defendant

 

WESTERN DIVISION

 

Docket # 06-SP-01332 and 06-CV-00060

Parties: RADAR REALTY ENTERPRISES, INC., Plaintiff v. HENRY JOHNSON AND MARILYN JOHNSON, Defendants / MARILYN JOHNSON, Plaintiff v. MARGARITA FLECHA, Defendant

Judge: /s/ Dina E. Fein

Associate Justice

Date: May 19, 2006

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned consolidated cases came before the court for trial on May 19, 2006, after which the following findings of fact and rulings of law shall enter.

1. The plaintiff Radar Realty Enterprises, Inc. (the landlord) owns the property located at 108 Avenue A, Turners Falls. Effective November 1, 2005, the landlord rented Apartment 7 at the premises to the defendants (tenants), pursuant to a written tenancy at will agreement. The agreed upon rent for the premises is $575 per month. On February 8, 2006 the landlord served and the tenant received a rental period notice terminating the tenancy. Rent totaling $2,300 is

 

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unpaid through May, 2006.

2. On February 8, 2006, the tenant Marilyn Johnson applied for a temporary restraining order against Margarita Flecha, the landlord’s property manager who also resides at the subject property. That case is consolidated with the landlord’s eviction case for purposes of trial.

3. At or around the inception of the tenancy, the tenants paid and the landlord (through the property manager) received, a security deposit in the amount of $575. Although the landlord notified the tenants that the security deposit would be placed in a Bank of America account, the account number was not identified, nor did the landlord have a statement of conditions completed. The landlord has therefore forfeited the right to retain the security deposit, as provided for under G.L. c. 186, s. 15B, and the amount of the deposit shall be credited against unpaid rent, as indicated below.

4. The only other claim as to which the tenants put on any evidence is their retaliation defense and counterclaim. The tenants allege that the notice to quit was served in reprisal for the tenants’ protected activity in applying for a temporary restraining order. I find and rule that the tenants have not established reprisal. The decision to serve the notice to quit and the steps necessary to effectuate service were made prior to Ms. Johnson applying for a restraining order. In addition, even were the timing such as to raise a presumption of retaliation, the landlord has rebutted that presumption by clear and convincing evidence that the eviction was motivated by the numerous tenant-caused disturbances at the premises.

5. ORDER: Based upon the foregoing, and as provided for under G.L. c. 239, s.8A, the tenants shall have 10 days from the entry date of this order (below) to deposit with the Clerk’s office the sum of $2,300 (unpaid rent) – $575 (forfeited security deposit) = $1,725. If they do so, that sum shall be released to the landlord forthwith upon request, and judgment’ for possession

 

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shall enter in favor of the tenants. If the tenants fail to make the required deposit, judgment shall enter in favor of the plaintiff for possession and $1,725, at the expiration of the 10 day period. 6. This ruling is without prejudice to the landlord’s right to seek injunctive relief in the event of any disturbances by the tenants at the premises and/or to initiate a for-cause eviction. Ms. Flecha and the Johnsons are ordered not to have any contact with one another, except in the event of a bona fide emergency. All non-emergency contact is to be through Attorney Mason. In addition, the Johnsons are ordered not to have any contact with any of the witnesses who testified at trial, specifically including Diana Nunez.

So entered this 19th day of May, 2006.

 

 

 

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End Of Decision

HOUSING COURT

Stephan R. Robert, Plaintiff v. Jamie Default; Defendant

 

Western Division

 

Docket # 06CV00070

Parties: Stephan R. Robert, Plaintiff v. Jamie Default; Defendant

Judge: /s/ Dina E. Fein,

Associate Justice

Date: March 16, 2006

ORDER

 

After hearing on March 14, 2006, for which the plaintiff was present, but for which the defendant did not appear, the following order is to enter

 

1. The defendant (tenant) is ordered to vacate the premises forthwith. Legal possession is hereby restored to the plaintiff (landlord).

 

2. A sheriff or constable is hereby authorized to levy upon this order as if it were an execution issued pursuant to G.L.C. 239, following service of a forty-eight hour notification.

 

So entered this 16th of March, 2006.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

MOHAMMED MOULINE, et at, Plaintiffs v. EMMANUEL GREENSPAN, et al, Defendants

 

WESTERN DIVISION

 

Docket # 06-CV-0259

Parties: MOHAMMED MOULINE, et at, Plaintiffs v. EMMANUEL GREENSPAN, et al, Defendants

Judge: /s/ Dina E. Fein

Associate Justice

Date: January, 2007

RULINGS AND ORDER ON DEFENDANT’S MOTION TO DISQUALIFY PLAINTIFFS’ COUNSEL

The above-captioned matter is before the court on the defendant Emmanuel Greenspan’s (“Mr. Greenspan’s”) motion to disqualify plaintiffs’ counsel. For the reasons set forth herein, the motion is denied.

 

1. Findings of Fact: The facts, while characterized differently by the parties, are largely undisputed.[1] In April, 2004, Mr. Greenspan, on behalf of Greenspan Realty as the agent for Mohammed and Fouzia Mouline, retained Archer Battista, a partner with the law firm of Lyon and Fitzpatrick (“the firm”) to handle miscellaneous landlord/tenant matters. During the period April through June, 2004, the firm performed 3.10 hours of work for Greenspan Realty as agent

 

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[1] At hearing on the defendant’s motion to disqualify, Mr. Greenspan, who is self-represented at present, was permitted to present thoroughly his version of the relevant background. In reaching these findings of fact, I have also considered the affidavit of plaintiffs’ counsel, the documents attached thereto (most of which have been relied upon by both parties), and the court file, of which I take judicial notice.

 

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for the Moulines. The work consisted of dealing with a tenant known as Manny’s Auto Sales, and researching the requirements of the State Sanitary Code as regards appliances. The firm was paid in part for its services. In October, 2004, the firm inquired of Mr. Greenspan regarding an outstanding balance, and the need for further representation. Having no response to that inquiry, the firm closed its relevant files in February, 2005, and wrote off the outstanding balance. No work was performed by the firm on behalf of Mr. Greenspan in his individual capacity; all of the work was in Mr. Greenspan’ capacity d/b/a Greenspan Realty, as agent for the Moulines.

2. In November, 2005, the Moulines retained Robert Sacco, a partner with the firm, to represent them with regard to properties which they owned and Greenspan Realty managed, their attempts to sell the properties and, eventually, a dispute which arose with Mr. Greenspan concerning those sales and his alleged financial mismanagement of their real estate affairs. On or around May 12, 2006, Attorney Sacco served Mr. Greenspan with a demand letter under Chapter 93a. The complaint in this case was filed on May 12, 2006. On behalf of the Moulines, Attorney Sacco sought a preliminary injunction on or around July 7, 2006, at which time Mr. Greenspan was represented by counsel. By order entered on July 24, 2006, the injunction was allowed in part, and the parties pursued their litigation thereafter, through counsel.

3. On November 9, 2006, the court allowed the motion of counsel for Mr. Greenspan for leave to withdraw. Thereafter, Mr. Greenspan appeared pro se at a number of hearings, as both the moving and the opposing party.[2] On or around January 3, 2007, Mr. Greenspan filed his motion to disqualify Attorney Sacco from representing the Moulines herein, arguing that the

 

 

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[2] The court has recently ordered the parties to brief the applicability to this case of the recent decision in LAS v. Pagan, 447 Mass. 847 (2006).

 

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representation is barred by Rule 1.9(a) of the Massachusetts Rules of Professional Conduct.

 

4. Discussion: Rule 1.9(a) of the Massachusetts Rules of Professional Conduct provides as follows:

 

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation.

 

5. The courts utilize two criteria to determine whether an attorney should be disqualified based on a conflict with a former client. “First, the current representation must be `adverse’ to the interests of the former client. Second, the matters of the two representations must be `substantially related.” Adoption of Erica, 426 Mass. 55, 61 (1997), citing Bays v. Theran, 418 Mass. 685, 691 (1994).

6. Several considerations persuade the court that disqualification of Attorney Sacco is unnecessary. First, Attorney Sacco’s representation of the Moulines herein is not “substantially related” to the firm’s former representation of Greenspan Realty as agent for the Moulines. The former representation was brief and involved routine landlord/tenant matters; it did not, as far as the record reflects, touch upon the particulars of the relationship between the parties, including financial transactions between them which are at the heart of this litigation. Second, Mr. Greenspan has not alleged, nor does the record reflect, nor is there any basis for concluding that Mr. Greenspan revealed confidences during the brief former representation which could be relevant to the pending dispute. Finally, the motion to disqualify comes only after this case has been pending for many months, and after Mr. Greenspan (through counsel as well as pro se) has engaged the litigation actively and affirmatively, raising a reasonable inference that the motion is

 

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being advanced strategically, to obtain an advantage in the litigation.

7. “[D]isqualification, as a prophylactic device for protecting the attorney-client relationship, is a drastic measure which courts should hesitate to impose except when absolutely necessary.” Adoption of Erica, 426 Mass. at 58, quoting Freeman v. Chicago Musical Instrument Co., 689 F.2d 715, 721 (7th Cir. 1982).

For the reasons set forth herein, I conclude that disqualification of Attorney Sacco is neither necessary, nor in the best interests of judicial economy and the administration of justice.

8. Order: The defendant’s motion to disqualify counsel for the plaintiffs is denied.

 

So entered this both day of January, 2007.

 

 

 

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End Of Decision

 

HOUSING COURT

MOHAMMED MOULINE, ET AL, Plaintiffs v. EMMANUEL GREENSPAN, ET AL, Defendant

 

WESTERN DIVISION

 

Docket # 06-CV-00259

Parties: MOHAMMED MOULINE, ET AL, Plaintiffs v. EMMANUEL GREENSPAN, ET AL, Defendant

Judge: /s/ Dina E. Fein

Associate Justice

Date: July 24, 2006

RULING AND ORDER ON PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

 

The above-captioned matter came before the court for hearing on the plaintiffs’ motion for preliminary injunction, after which the following order shall enter:

1. The plaintiffs seek an order of the court requiring that the defendants discharge a mortgage they hold on certain properties, owned by the plaintiffs, which are the subject of purchase and sale agreements. The plaintiffs argue, and the court finds, that they have established a substantial likelihood of prevailing on their claim for discharge of the mortgage, and a risk of irreparable harm in the absence of injunctive relief. Specifically, absent the sought discharge, the plaintiffs will not be able to close on the anticipated sale of the subject properties. This order is crafted so as to provide alternative security to the defendants, thereby eliminating any harm to them which might otherwise flow from issuing injunctive relief.

2. While the parties dispute much of their history with one another, and have widely divergent views of who owes what to whom, the issues before the court on the pending motion

 

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are fairly narrow. The defendants purport to hold a duly executed mortgage on both of the subject properties, the bona fides of which will be assumed for purposes of this ruling. Those mortgages by their terms are intended to secure the defendants’ right to compensation under two management agreements between the parties. One of the management agreements provides for compensation in three categories: 10% of gross collected rents; %2 month’s rent for new leases; and a 5% commission upon sale of the property. The second management agreement provides for those three categories, and a

fourth category representing payment for repair and maintenance.

3. Having carefully reviewed the parties’ written submissions and associated materials, and reading the record generously in favor of the non-moving party, the court concludes that the defendants have not incurred expenses for repairs and maintenance (beyond those covered by the management account). The defendants may, however, be entitled to 10% of rents on both properties, $4,917.04 (Federal Street) and $8,171.61(Pearl Street). The defendants may also have the right to recover %z of new leases totaling $2,570.00 (Federal Street) and $1,802.50 (Pearl Street).

4. The management agreements require the owner (plaintiffs) to provide the agent (defendants) with a 30 day notice of intent to sell the properties. The purchase and sale agreement for Federal Street is dated February 3, 2006, which signifies that the owners should have given the agent notice of an intent to sell no later than January 3, 2006, at which time the management agreements were in effect. The defendants may therefore establish the right to collect a commission representing 5% of the sales price for Federal Street, or $775,000 x 5% = $38,750. The purchase and sale on Pearl Street having been executed months after the

 

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termination of the agreement, the defendants have no basis for arguing that they are entitled to a commission for that sale.

5. ORDER: Based upon the foregoing, the defendants are ORDERED AND ENJOINED forthwith to discharge their mortgage on the subject properties, conditioned upon the plaintiffs placing in escrow the sum of $46,237.04 upon the sale of Federal Street; and $9,974.11 upon the sale of Pearl Street.

 

So entered this 24th day of July, 2006.

 

 

 

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End Of Decision

 

HOUSING COURT

PATRICK J. MOORE, BUILDING COMMISSIONER, Plaintiff v. ZONING BOARD OF APPEALS OF WEST SPRINGFIELD, ET AL, Defendants

 

Western Division

 

Docket # 06-CV-279

Parties: PATRICK J. MOORE, BUILDING COMMISSIONER, Plaintiff v. ZONING BOARD OF APPEALS OF WEST SPRINGFIELD, ET AL, Defendants

Judge: /s/ Dina E. Fein,

Associate Justice

Date: September 13, 2006

RULING AND ORDER ON DEFENDANT’S MOTION TO DISQUALIFY COUNSEL

1. The above-captioned matter is before the court on the motion of Balise Automotive Realty Limited Partnership and Balise Motor Sales Company (“Balise”) to disqualify counsel for the plaintiff. The issue presented is whether counsel’s representation of the plaintiff presents a conflict of interest which is not susceptible of waiver by the clients involved. For the reasons set forth herein, the court concludes that it does not, and Balise’s motion is therefore denied.

2. Attorney James T. Donahue serves on a part-time basis as Town Counsel for the Town of West Springfield (“the Town”). In that capacity, he is called upon on occasion to represent respectively the two Town entities which are adverse to each other herein: the Building Commissioner; and the Zoning Board of Appeals (“the ZBA”). Balise argues that this circumstance triggers Rule 1.7 of the Rules of Professional Conduct, and precludes Attorney Donahue’s representation of either party.

3. Rule 1.7 of the Rules of Professional Conduct provides in pertinent part as follows:

 

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:

(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and

(2) each client consents after consultation.

4. There is no dispute that the Building Commissioner and the members of the ZBA have consented to Attorney Donahue’s representation of the plaintiff herein. The only remaining

question, therefore, is whether Attorney Donahue reasonably believes that his representation of the Building Commissioner in this case will not adversely affect his relationship with the ZBA, or whether, as highlighted in the commentary to Rule 1.7, “a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances.”

5. The court sees no reason to second-guess Attorney Donahue’s conclusion, nor the informed consent of the parties. These are sophisticated clients. In addition, while the Building Commissioner does seek to overturn the ZBA’s decision, Balise is the party who most squarely stands to benefit from the ultimate disposition of this case. Finally the Town has retained independent counsel on behalf of the ZBA, such that its interest in upholding the administrative decision below will be fully advocated. While there may be situations in which a potential conflict of interest so offends the administration of justice as to justify the court’s over-ruling the informed judgment of sophisticated clients, this is not one of those situations.

6. ORDER: For the foregoing reasons, Balise’s motion to disqualify counsel if denied.

So entered this 13th day of September, 2006.

 

 

 

 

 

End Of Decision

 

 

HOUSING COURT

Patrick Crippa, Plaintiff vs. Richard Packard, Defendant

 

WESTERN DIVISION

 

Docket # 06CV00300310

Parties: Patrick Crippa, Plaintiff vs. Richard Packard, Defendant

Judge: /s/ DINA E. FEIN,

Associate Justice

Date: June 5, 2006

Order

 

After hearing on June 2, 2006, for which both parties were present, the following order is to enter:

1. Mr. Crippa’s request for the court to order Mr. Packard to vacate the subject premises is denied, conditioned upon his compliance with this court order.

2. Mr. Packard is referred to Crisis Services for an emergency evaluation and is ordered to

comply with all of their recommendations which result from the evaluation.

3. Mr. Packard is ordered to cooperate with Mark Arsenault and/or other clinicians at Service Net in the development of a service plan and is ordered to follow through in all

respects with the plan.

4. Mr. Packard is further ordered not to drink alcohol beverages and is not to be intoxicated at the subject premises.

5. Mr. Packard is ordered not to cause any disturbances at the subject premises.

6. This order is without prejudice to the parties’ right to pursue further court proceedings that they may deem necessary.

7. This matter is continued for review in Greenfield on June

16, 2006 at 9:30 A.M.

 

So entered this 5th day of June, 2006

 

 

 

 

 

End Of Decision

 

HOUSING COURT

BOBBIJO PERRAS, Plaintiff v. NORTH ADAMS HOUSING AUTHORITY and MARLENE WALSH, Defendants

 

WESTERN DIVISION

 

Docket # 06-CV-0311

Parties: BOBBIJO PERRAS, Plaintiff v. NORTH ADAMS HOUSING AUTHORITY and MARLENE WALSH, Defendants

Judge: /s/ Dina E. Fein

Associate Justice

Date: July 24, 2006

RULINGS AND ORDER ON PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER AND FURTHER INJUNCTIVE RELIEF

 

The above-captioned matter is before the court on the plaintiff’s motion for temporary restraining order and further injunctive relief.[1] For the reasons and upon the terms set forth herein, the plaintiff’s motion is allowed.

1. Facts: For approximately ten years, Ms. Perras has resided in a public housing unit owned and managed by the defendant North Adams Housing Authority (“the Housing Authority”). Ms. Perras’ rent for the subject unit is $154 per month.

2. In or around late 2005 or early 2006, Ms. Perras was determined to be disabled by the Social Security Administration, at which time she began receiving Supplemental Security Income (“SSI”). Prior to becoming eligible for SSI, Ms. Perras received disability benefits from the Massachusetts Department of Transitional Assistance (“DTA”). When Ms. Perras was receiving

 

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[1] The defendants having had notice of these proceedings, and having appeared with the assistance of able counsel, the court will treat the pending motion as a motion for preliminary injunction.

 

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DTA benefits, her rent was deducted from her monthly benefit, and paid directly to the Housing Authority by way of “vendor payments.” When Ms. Perras became eligible for SSI, her DTA benefits and related vendor payments ended.

3. On or around March 9, 2006, the Housing Authority sent Ms. Perras a 14 day notice terminating her tenancy for nonpayment of rent. The notice stated that Ms. Perras then owed $462 in past due rent. On or around March 31, 2006, Ms. Perras paid the Housing Authority $300. On or around April 24, 2006, the Housing Authority entered a summary process complaint against Ms. Perras in the North Adams District Court. An “affidavit of rent due” was filed with the Complaint, and indicated that Ms. Perras owed $316 in past due rent as of April 24, 2006. The complaint itself claimed unpaid rent totaling $616 through April, 2006. On or around May 1, 2006, Ms.

Perras paid the Housing Authority $300.

4. Ms. Perras appeared pro se for the trial of her summary process case in District Court on May 8, 2006. Ms. Perras did not file an answer or counterclaim in the District Court proceeding. The summary process case resulted in a judgment in favor of the Housing Authority, for unpaid rent in the amount of $170, and costs. The execution was to issue on June 10, 2006.[2] On or around June 6, 2006, the plaintiff filed and served a verified complaint in the instant action, alleging, among other causes of action, discrimination based upon handicap in violation of G.L. c. 151B, s.4, and requesting a reasonable accommodation.

5. The plaintiff’s motion for temporary restraining order came before the court for hearing on June 28, 2006 and July 19, 2006, at which time Ms. Perras agreed to pay all past due rent to the Housing Authority.

 

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[2] The parties dispute whether they agreed to issuance of the execution.

 

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6. Standard for Preliminary Injunction: The well established standard for issuance of a preliminary injunction requires that the plaintiff show a likelihood of success on the merits, and a substantial risk of irreparable harm in the absence of injunctive relief. The court must then balance the risk of harm to the moving party against any similar risk of harm to the opposing party associated with granting the injunction. “Only where the balance between these risks cuts in favor of the moving party may a preliminary injunction properly issue.” Packaging Industries Group, Inc. v. Cheney, 380 Mass. 609, 617, 405 N.E.2d 106, 112 (1980).

7. Analysis: The plaintiff’s verified complaint alleges that she suffers from a disability, and is entitled to a reasonable accommodation. Specifically, she requests injunctive relief restraining the Housing Authority from using the execution issued by the District Court to recover possession of her unit, so as to avoid forfeiture of her subsidized tenancy. The Housing Authority opposes the plaintiff’s request, arguing that it amounts to a belated appeal of the District Court judgment against her, and is barred for not having been raised in that proceeding.

8. The plaintiff’s request does not represent an attempt to appeal the District Court judgment against her. She does not challenge the judgment, nor seek to have it overturned. Ms. Perras acknowledges that she owes a small amount of rent, and seeks as a reasonable accommodation of her alleged mental disability the right to pay that rent and retain possession of her public housing apartment.

9. In addition, the District Court proceeding does not bar Ms. Perras’ request in this case for a reasonable accommodation, for several reasons. First, under Rule 5 of the Uniform Summary Process Rules, counterclaims in summary process cases are not compulsory. ( “Counterclaims shall not be considered compulsory; that is, they shall not be considered waived for the purpose

 

 

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of a separate civil action or actions if not asserted in a summary process action.”) As applied to this case, Unif. Summ. Pro. R. 5 signifies that Ms. Perras has not waived her discrimination claim and related request for a reasonable accommodation by her failure to raise it in District Court.

10. Secondly, the District Court does not have jurisdiction over claims alleging housing discrimination, G.L. c. 151B s. 9, and Ms. Perras could not have raised her claim in the previous proceeding even had she known and chosen to. To preclude Ms. Perrras from pursuing her request for a reasonable accommodation in this case would therefore deprive her entirely of the right to make that claim.

11. Finally, the risk of harms tip indisputably in favor of Ms. Perras. Ms. Perras is on a small fixed income, and has been determined to be disabled by the Social Security Administration. If her request for injunctive relief is denied and the Housing Authority is allowed to levy on the execution, Ms. Perras will lose the subsidized unit where she have lived for 10 years, and the very low rent associated with that unit. The prospect of a damages award down the litigation road simply does not suffice to compensate for the loss of a subsidy intended to insure decent, safe and sanitary housing for those whose incomes do not allow them to afford the private market.

12. The harm to the Housing Authority associated with allowing the requested relief is, on the other hand, effectively non-existent, given the order crafted herein. The Housing Authority sought to evict Ms. Perras for nonpayment of rent, and she has offered to pay all of the past due rent as a condition of obtaining injunctive relief. In addition, the record before the court suggests that Ms. Perras’ difficulty paying rent commenced when DTA stopped making vendor payments

 

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on her behalf, and this order is intended in part to replicate for the Housing Authority the security of the previous arrangement.

 

13. Order: For the foregoing reasons, a preliminary injunction shall issue, restraining the defendant Housing Authority from recovering possession of the subject premises, conditioned upon the following:

 

A. Ms. Perras is ordered to pay all past due rent, forthwith;

 

B. Ms. Perras it ordered to make a reasonable proposal to the Housing Authority for payment of costs in the District Court proceeding; and

 

C. Ms. Perras is order to obtain a Representative Payee for her Supplemental Security Income, whose responsibilities shall include the timely payment

of future rent.

 

14. The Clerk’s office is requested to schedule this matter for pretrial conference.

 

So entered this 24th day of July, 2006.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

North Adams Health Department, v. Edward & Lynne Burdick

 

 

Docket # No. 06-CV-0321

Parties: North Adams Health Department, v. Edward & Lynne Burdick

Judge: /s/DINA E. FEIN,

Associate Justice

Date: July 11, 2006

ORDER

 

After hearing on July 7, 2006, for which all parties were present, the following order is to enter:

 

1. An application for a building permit is to be submitted by a licensed contractor to the building department by Friday, July 14, 2006, to complete the necessary repairs at the subject premises located at 129 North Street, North Adams.

 

2. The court will entertain the plaintiff’s request for an order to vacate if the above application for a building permit has not been filed.

 

3. This case is continued for further review on Wednesday, July 19, 2006 at 9:30 A.M. at the Western Division Housing Court session in Pittsfield Superior Court, 76 East Street, Pittsfield, MA.

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

TERI WILES v. SUSAN HANSSON and ADAM ESTEN SUSAN HANSSON v. TERI and KEITH WILES

 

 

Docket # 06-CV-332 / 06-CV-340

Parties: TERI WILES v. SUSAN HANSSON and ADAM ESTEN SUSAN HANSSON v. TERI and KEITH WILES

Judge: /s/Dina E. Fein

Associate Justice

Date: June 19, 2006

ORDER

 

After hearing on June 19, 2006, at which all parties were present, the following order is to enter:

 

1. The applications for restraining orders filed by the all the parties are hereby denied, conditioned upon the following.

 

2. Susan Hansson and Adam Esten (“landlords”) are ordered to comply with the terms of the agreement in the related, 06-TR-520 (Greenfield Board of Health v. Deerfield/Greenfield

 

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LLC, et al.). Specifically, the electrical service on the premises is to be restored and made safe for the tenants to reoccupy by no later than June 22, 2006.

 

3. Teri and Keith Wiles (“tenants”) are prohibited from residing at the premises until June 23, 2006, unless they are informed by the City of Greenfield prior to that time that the premises are safe for their return. If the electrical system is not restored by June 22, 2006, the court will entertain a motion brought by the tenants for alternate housing accommodations at that time.

 

4. The tenants are further ordered to not interfere with anyone’s electrical service at the premises and are specifically ordered to not connect any appliances in their apartment with the electricity of any other apartment at the premises.

 

5. The Housing Specialist Department of the Housing Court shall schedule an inspection of the premises.

 

6. The parties shall communicate with one another only through writing other than in the event of a bona fide emergency.

 

So entered this 19th day of June, 2006.

 

 

 

cc: Greenfield Board of Health, Lisa Hebert

 

 

 

End Of Decision

 

HOUSING COURT

Patricia Savio & David Whitlock vs. American Home Mortgage,

 

 

Docket # 06-CV-0339

Parties: Patricia Savio & David Whitlock vs. American Home Mortgage,

Judge: /s/DINA E. FEIN

Associate Justice

Date: June 21, 2006

ORDER

 

After hearing on June 20, 2006, for which all parties were present, the following order is to enter:

 

1. The plaintiffs’ motion to stop the foreclosure is denied conditioned upon the defendant postponing the foreclosure for fourteen days in order to allow the plaintiffs to pursue relief through the Bankruptcy Court.

 

2. At the expiration of fourteen days this case will be dismissed.

 

So entered this 21st day of June, 2006.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

HOLYOKE FARMS, LLC v. YVONNE BROWER and THE ESTATE OF YVONNE BROWER

 

 

Docket # No: 06-CV-0395

Parties: HOLYOKE FARMS, LLC v. YVONNE BROWER and THE ESTATE OF YVONNE BROWER

Judge: /s/Dina E. Fein, J.

Date: July 24, 2006

ORDER

 

 

The Court, after hearing on July 21, 2006, at which the Plaintiff was present and represented by counsel and persons with an apparent interest in the matter, Charles Brower, Sr. and Charles Brower, Jr., were present and had an opportunity to be heard, and other persons who may have an interest in the matter were not present, the Court makes the following orders:

 

1. The Court finds and determines that the death of YVONNE BROWER, the only authorized occupant of the residential apartment owned by the Plaintiff, HOLYOKE FARMS, located at

127 Tokeneke Road, Holyoke, Massachusetts, terminates the BROWER tenancy as a matter of law;

 

2. A judgment awarding possession of the BROWER apartment shall enter in favor of the Plaintiff, HOLYOKE FARMS, forthwith;

 

3. An Execution awarding possession of the BROWER apartment to the Plaintiff is to issue after the expiration of ten (10) days from the date of this Order;

 

4. The Court finds and determines that the Plaintiff acted properly in securing the premises and changing the locks to the BROWER apartment after BROWER’s death and after the assertion by other persons of apparently conflicting claims of entitlement to the decedent’s personal property. The Plaintiff shall keep the BROWER apartment secured from entry by any person except as permitted by this Order;

 

5. The Court finds and determines that persons in addition to the decedent had

 

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access to her apartment before her death, and that after the decedent’s death others had access to the apartment. Such access was without the assistance or other participation of the Plaintiff, except for instances when Charles Brower, Jr., was permitted to enter in order to remove household pets belonging to the decedent. The Court further finds and determines that any removal of the personal property of the decedent other than the decedent’s animals was not authorized by the Plaintiff and the Plaintiff shall be held harmless from the claims of any person asserting an interest in any personal property of the decedent which may have been so removed from the premises prior to the entry of this Order;

 

6. The Plaintiff is entitled to levy upon the Execution as soon as the Plaintiff receives it;

 

7. The Plaintiff , the Hampden County Sheriff’s office, and the moving and storage company engaged to assist in the levy upon the Execution shall comply with all statutory requirements applicable to recovery of possession by the landlord of a residential apartment and removal of any personal property remaining on the premises after possession is recovered, excepting only that the Plaintiff is permitted to remove personal property with its own employees and to store it in a secure storage location on the premises at HOLYOKE FARMS. Removal and storage of personal property shall not be accomplished until after the Plaintiff, with the assistance of the Sheriff and employee or employees of the moving and storage company, shall have made a basic inventory of all personal property to be removed and stored pursuant to this Order;

 

 

8. Any items determined by the Sheriff and moving and storage company employees not to be placed into storage, either because of negligible apparent value, perishable or other dangerous qualities, or for any other reason customarily relied upon by the Sheriff and moving company in the course of a physical eviction from a residential apartment, shall be discarded by the Plaintiff, and the Plaintiff is authorized to rely upon the determinations provided to it by the Sheriff and the moving company concerning what property is to be removed and stored and what property is to be discarded. The Plaintiff shall be held harmless from the claims of any person asserting an interest in any personal property discarded in compliance with this Order;

 

9. The Plaintiff shall retain, in a safe and secure location at HOLYOKE FARMS, all of the decedent’s property which has been removed from the decedent’s apartment for a period of six (6) months, or such other time as may be determined after further hearing and order of this Court or any other Court of competent jurisdiction which may hear and rule upon the question of distribution of the decedent’s personal property;

 

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10. At the expiration of the six (6) month period, and unless a superceding order has been issued by this Court of by another Court of competent jurisdiction, the Plaintiff is authorized to discard all personal property which it has placed into storage in compliance with this Order, and the Plaintiff shall be held harmless from the claims of any person asserting an interest in any personal property so discarded;

 

11. The Court is mindful of the existence of potentially conflicting claims of entitlement to the decedent’s personal property, and that some but apparently not all of the potential claimants have been provided with notice that this action has been brought by HOLYOKE FARMS. It is also clear to the Court, both from the verified allegations made in the Plaintiff’s Complaint and from the sworn testimony of Charles Brower, Sr., on July 21, 2006, that the Plaintiff is without knowledge of the residential addresses of some potential claimants and without knowledge of the identity of other possible potential claimants. In order to assist the Court and the Plaintiff in providing notice of this action to as many potential claimants as possible, Charles Brower, Sr., is ordered to provide the Plaintiff with the mailing or residential address of all such persons known to him, including without limitation Tamara Billado, believed to be the granddaughter of the decedent and believed to reside in Burlington, Vermont, and Vickie Shepard, believed to be the daughter of the decedent and believed to reside in Texas, but only to the extent that such addresses are known to him;

 

12. The Plaintiff is ordered to provide notice by first class mail

of the entry of this Order, and of all further proceedings in this matter, to all persons whose mailing or residential addresses are known to the Plaintiff and who have asserted a claim to the personal property of the decedent and to all persons whose mailing or residential addresses are provided by Charles Brower, Sr., pursuant to this Order;

 

13. The Puff may mark this matter for further hearing, if required, and shall provide notice of having done so in accordance with the foregoing paragraph.

 

ALL UNTIL THE FURTHER ORDER OF THE COURT.

 

 

 

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End Of Decision

 

HOUSING COURT

ALBERTA CHATEAUNEUF v. STEVEN YATES

 

 

Docket # 06-CV-432

Parties: ALBERTA CHATEAUNEUF v. STEVEN YATES

Judge: /s/Dina E. Fein,

Associate Justice

Date: September 25, 2006

ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned matter originated as a summary process (eviction) case. The defendant (“tenant”) filed an answer and counterclaim against the plaintiff (“landlord”). By orders entered on July 16, 2006, the landlord’s claims for possession and rent were dismissed, for her failure to attend a mediation which had been agreed upon by the parties and scheduled by the court for June 13, 2006. The tenant’s counterclaims were transferred to the civil docket, and the case was scheduled for a status conference on August 8, 2006. The landlord failed to appear for the status conference. The case was then scheduled for trial on September 8, 2006, with notice to the landlord. The landlord did not appear for trial. Upon consideration of the evidence (offered in the form of verified requests for findings of fact and rulings of law), the

following findings of fact, rulings of law, and judgment by default shall enter:

1. Findings of Fact: At all times material hereto, through on or around June 10, 2006, the

 

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plaintiff (“landlord”) owned the subject premises located at 36 Ludlow Road, Chicopee, which she rented to the defendant (“tenant”), effective December 15, 1997, pursuant to a written lease. The contract rent for the premises was initially $575 per month, and was increased to $600 per month effective January 1, 1999.

 

2. At the inception and throughout the tenancy, there were numerous conditions at the premises which violated the minimum standards of fitness for human habitation, as set forth in Article II of the State Sanitary Code, 105 C.M.R. 410.00 et seq. The conditions included inoperative smoke detectors, insect and rodent infestation, water leaks, walls, floors and doorways in disrepair, and mold.

 

3. In or around October, 2002, the tenant notified the landlord of inadequate heat at the premises. The furnace was inspected by Berkshire Service Experts of West Springfield, which reported the furnace “condemned for reason of a cracked heat exchanger.” The furnace was never repaired.

 

4. At all times material hereto, the landlord has been in the trade or business of renting residential housing.

 

5. Rulings of Law: The substandard conditions at the premises breach the implied warranty of habitability, and reduce the fair rental values of the property. I award the tenant damages for the landlord’s breach of the warranty of habitability, as follows:

 

– 30% rent abatement for all conditions except inadequate heat from December, 1997 through December, 1998 = 30% x $575 per month = $172.50 per month x 13 months = $2,242.50;

– 30% rent abatement for all conditions except inadequate heat from

 

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January, 1999 through June, 2006 = 30% x $600 per month = $180 per month x 90 months = $16,200.00;

– 30% abatement for inadequate heat over heating seasons beginning October 12, 2002 = 30% x $600 = $180 x 35 months through June, 2006 = $6,300.00;

 

6. Chapter 93a: In renting a dwelling unit with State Sanitary

Code violations and failing to repair those violation after notice from the tenant, the landlord committed an unfair and deceptive trade practice in violation of the Consumer Protection Statute, G.L. c. 93a, s.2, and the Attorney General’s regulations thereunder, 940 C.M.R. 3.17. The landlord’s violation of Chapter 93a was willful or knowing, entitling the tenant to an award of multiple damages (not less than double nor more than treble). “The `willful or knowing’ requirement of s. 9(3), goes not to actual knowledge of the terms of the statute, but rather to knowledge, or reckless disregard, of conditions in a rental unit which, whether the [landlord] knows it or not, amount to violations of the law.” Montanez v. Bagg, 24 Mass.App.Ct. 954, , 510 N.E.2d 298, 300 (1987). The court may consider the “egregiousness” of the landlord’s conduct in determining whether to double or treble damages. Brown v. LeClair, 20 Mass.App.Ct. 976, 980, 482 N.E.2d 870, 874 (1985).

 

7. I award the tenant double damages under Chapter 93a, as follows: $2,242.50 + $16,200.00 + $6,300.00 = $24,742.50 x 2 = $49,485.00.

 

8. As provided for under G.L. c. 93a, s.9, based upon the affidavit of Attorney Jeffrey M. Guiel, I award the tenant reasonable attorney’s fees in the amount of $12,290.

 

9. Order for Entry of Judgment: Judgment shall enter in favor of the defendant tenant

 

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Steven Yates for possession, damages in the amount of $49,485.00, and attorney’s fees in the amount of $12, 290.

 

So entered this 25th day of September, 2006.

 

 

 

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End Of Decision

 

HOUSING COURT

Town of Greenfield vs. Gary Padeck

 

 

 

Docket # 06cv00452

Parties: Town of Greenfield vs. Gary Padeck

Judge: /s/Dina E. Fein,

Associate Justice

Date: October 24, 2006

ORDER

 

After hearing on October 20, 2006, at which time both parties were present, the following order is to enter:

 

1. The court hereby amends the complaint, sua sponte pursuant to Mass. R. Civ. P. 19, so as to add the occupant Arlene Rockwell as a party indispensable to relief.

 

2. Mr. Padeck’s motion to dismiss is denied. The plaintiff’s petition to enforce the State Sanitary Code is not defective.

3. Mr. Padeck’s motion for an extension is allowed in part and denied in part. Mr. Padeck is ordered to complete the emergency electrical repairs at the premises, forthwith. Ms. Rockwell and the members of her household are ordered to vacate the subject premises until such time as the emergency electrical repairs have been completed, as determined by the Greenfield Wiring Inspector or by order of the court. Mr. Padeck is ordered to provide Ms. Rockwell and the members of her household with alternative housing until the emergency electrical repairs have been completed. Ms. Rockwell and the members of her household are permitted access to the subject premises during daytime hours, only.

 

4. Mr. Padeck is ordered to change the locks at the subject premises and is to provide a new key to Ms. Rockwell.

 

5. Mr. Padeck is ordered to provide alternative housing at a hotel or motel within a ten mile radius of the subject premises. Mr. Padeck is to pre-pay for alternative housing from day

 

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to day until such time as Ms. Rockwell is permitted to re-occupy the premises.

 

6. This matter is scheduled for review in the Northampton Session on October 30, 2006 at 9:00 A.M.

 

 

 

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End Of Decision

 

HOUSING COURT

Chris Montgomery v. Henry Kiddu

 

 

Docket # NO. 06CV00519

Parties: Chris Montgomery v. Henry Kiddu

Judge: /s/DINA E. FEIN, Associate Justice

cc: Bay State Gas Co.

Michael Doherty, Assistant Chief Housing Specialist

Date: August 25, 2006

ORDER

 

After hearing on August 25, 2006, at which time the plaintiff, and a representative from Bay State Gas appeared, but for which the defendant Henry Kiddu failed to appeared, the following order is to enter:

 

 

1. A capias (arrest warrant) shall issue forthwith against Henry Kiddu for his failure to appear for the hearing on August 25, 2006.

 

2. Bay State Gas’ motion to intervene is allowed.

 

3. Bay State Gas is prohibited from terminating the gas service at the subject premises, conditioned upon the plaintiffs compliance with this order.

 

4. The tenants are ordered to pay for prospective gas service at the subject premises pending further order of the court.

 

 

5. This matter is scheduled for further review on September 15, 2006 at 9:00 A.M.

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

SUSAN FERRON, v. TOM MORROW and LESLIE FIELD

 

 

Docket # NO. 06-CV-0623

Parties: SUSAN FERRON, v. TOM MORROW and LESLIE FIELD

Judge: /s/Dina E. Fein Associate Justice

Date: December 27, 2006

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned matter came before the court on December 18, 2006, for hearing on the plaintiffs (“landlord’s”) complaint for civil contempt, at which time the landlord (through counsel) and the defendants (tenants) appeared. Upon consideration of the evidence, the following findings of fact and rulings of law shall enter:

 

1. Findings of Fact: On October 12, 2006, October 18, 2006, and December 8, 2006, the court entered orders prohibiting the tenants from using water at the subject rental property unreasonably, and ordering that the tenants cease and desist any unreasonable and unnecessary use of water. On various occasions after entry of one or more of these orders, the tenants used water at the premises unreasonably. On November 20, 2006, after hearing on a related summary process case between the parties (06-SP-4177), the tenants ran the water at the property continuously for several hours, utilizing 228 cubic feet of water between approximately 2:00 p.m. and approximately 7:00 p.m. As a result of the tenants’ unreasonable use of water, the landlord’s

 

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water bill for this cycle (which is not yet over) is substantially higher than in the past. The bill to date for this cycle to $771.47. The highest bill in the recent past for an entire cycle was $363.58.

 

2. Ruling of Law: On these facts as found above, I conclude and rule that the tenants have disobeyed a clear and unequivocal order of this court, without justification. I therefore find the defendants in contempt of court. In order to compensate the landlord for the tenants’ violation of the court’s orders, I am imposing a fine in the amount of $407.89 ($771.47 – $363.58), plus a reasonable attorney’s fee of $200 related to this contempt action, for a total payable to the plaintiff of $607.89, for which the defendants are jointly and severally liable.

 

3. Order for Entry of Judgment: Judgment shall enter in favor of the plaintiff on the complaint for contempt, in the amount of $607.89.

 

So entered this 27th day of December, 2006.

 

 

 

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End Of Decision

 

HOUSING COURT

ANNE and PAUL LIZAK v. REBECCA DURANT

 

 

Docket # NO. 03-SP-2433

Parties: ANNE and PAUL LIZAK v. REBECCA DURANT

Judge: /s/Dina E. Fein Associate Justice

Date: June 7, 2005

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned matter came before the court for trial over several days, after which the following findings of fact and rulings of law shall enter, as provided for under Mass. R. Civ. P. 52(a):

 

1. Background: This case was commenced as a summary process case. It is undisputed that the defendant has vacated the subject premises, such that possession is not an issue. Rent totaling $2,775 was unpaid when the plaintiff vacated the premises. In defense and counterclaim to the plaintiffs’ rent claim, the defendant alleges retaliation, discrimination, breach of the warranty of habitability, breach of the covenant of quiet enjoyment, failure to comply with the rules and regulations for the Section 8 program; intentional infliction of emotional distress, and violation of Chapter 93a. The court will address these claims in turn.

 

2. Effect of Previous Settlements: There was previous litigation between the parties, arising out of disputes concerning their landlord-tenant relationship. Two agreements were executed in the course of that litigation (Docket Number 01-SP-4016), which operate to bar certain claims

 

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herein. By virtue of the parties’ agreement dated November 20, 2001 (Exhibit LL), pursuant to which a judgment for possession and $8,255 entered in favor of the defendant, all claims between the

parties arising out of their landlord tenant relationship through that date were released, and are therefore barred herein. By virtue of the parties’ agreement dated January 24, 2003 (Exhibit MM), all claims arising out of the alleged presence of lead paint at the subject premises were released, and are therefore barred herein.

 

3. Retaliation: The defendant alleges that the plaintiff retaliated against her in two ways: by attempting to alter the terms of her tenancy pursuant to a notice dated July 8, 2002 (Exhibit JJ); and by serving the notice to quit which preceded this action (Exhibit HH), on or around March 25, 2003. Although not clearly articulated by the defendant, it would appear that she alleges these acts were taken in reprisal for protected activity in contacting various code enforcement agencies, and asserting her rights in the previous litigation between the parties. For the reasons set forth below, the defendant’s claim of retaliation fails.

 

4. The plaintiffs argue that the defendant’s various contacts with code enforcement agencies were not made in good faith, but were rather orchestrated for the tactical purpose of preempting any action against her. The court need not reach this issue, however, nor the question of whether the timing of various events entitles the defendant to presumptions of retaliation under G.L. c. 286, s. 18 and G.L. c. 239, s.2A. This is the case because I am persuaded by clear and convincing evidence that the plaintiffs had an independent basis for both of the acts which are alleged to have been retaliatory, and would have done what they did, when they did, in the manner they did, notwithstanding the defendant’s allegedly protected activity.

 

5. The notice dated July 8, 2002 is identical in all significant respects to the Addendum to the Section 8 Model Dwelling Lease (Exhibit KK), which the defendant signed at the inception

 

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of the tenancy in 1990. The plaintiffs did not attempt to change the terms of the tenancy in 2002, but rather attempted to reiterate the existing terms, motivated in part by disturbances caused by the defendant. In addition, the additional terms established in 1990 and reiterated in July, 2002 were reviewed and approved by HAP, the agency which provided the defendant’s Section 8 subsidy. Furthermore, I do not credit the defendant’s testimony that there was a significant change in the de facto terms of the tenancy, irrespective of the written terms. The plaintiffs’ conduct in reiterating additional terms of the tenancy, where the terms were agreed to by the defendant originally and approved by HAP, did not represent illegal retaliation.

 

6. The plaintiffs offered two reasons for their decision in March, 2003 to terminate the defendant’s tenancy: they intended to

rent the entire property to Ms. Lizak’s sister and the members of her household, with an option to buy; and the tenant failed to pay her full share of rent for the period August, 2002 through January, 2003, creating a shortfall totaling $2,775. I credit both explanations.

 

7. In August, 2000, the plaintiffs vacated the subject premises where they had previously lived, and moved to Ludlow, some 20 minutes away, to live with family members, including disabled family members. The plaintiffs were increasingly unable to manage the responsibilities of caring for the subject rental property and another duplex they owned in Springfield, at that distance and given their other commitments. Their difficulties were compounded by the defendant’s failure to pay her total share of rent. In addition, the strain of maintaining the subject property would have been significantly relieved by renting it to a single household (Ms. Lizak’s sister), which arrangement would have permitted the plaintiffs to transfer the obligation to pay for heat and hot water (subject to a single meter which prevented the plaintiffs from passing along those expenses to two separate household). The plaintiffs’ understandable desire to divest

 

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themselves of the responsibilities of rental property is confirmed by the fact that they also sent notices to quit to the tenants at their other duplex, one in February, 2003 and one in June, 2003. The fact that Ms. Lizak’s sister has not yet occupied the first floor previously occupied by the defendant, nor purchased the premises, is credibly explained by the need to complete certain work at the property and the prospective buyers’ changed financial circumstances. The plaintiffs had perfectly good reasons for terminating the defendant’s tenancy, and in doing so they did not retaliate against the tenant, even assuming the questionable assertion that she engaged in protected activity in good faith. The plaintiffs are therefore entitled to a ruling in their favor on this claim.

 

8. Discrimination: The defendant has not clearly articulated the basis for her claim of discrimination. To the extent that this claim is intended to allege sexual harassment of her daughter, I do not credit the defendant’s testimony concerning Mr. Bull’s behavior. The plaintiffs are therefore entitled to a ruling in their favor on this claim.

 

9. Breach of the Warranty of Habitability: The defendant testified to numerous substandard conditions which adversely affected her use of the premises. Much of the defendant’s testimony is simply not credible. For example, the defendant testified that shortly after Ms. Lizak’s sister and her family moved into the upstairs unit, there developed a pervasive smell of cat urine and chemicals at the premises. The defendant also testified that there was insufficient heat at the premises. Neither of these conditions, however, are reported in any of the multiple inspection reports by

the Town of East Longmeadow Health Inspector, or HAP. To the contrary: a letter from the East Longmeadow Health Agent dated November 1, 2002 (Exhibit H) specifically referred to the complaint of inadequate heat, and concluded that there was no such violation. The defendant’s demeanor at trial, in the absence of any corroborating documentation,

 

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leads me to conclude that many of her complaints about conditions at the premises were fabricated or overstated.

 

10. I am mindful that there were a number of conditions documented by a series of inspections during the period from late October, 2001 through December, 2002. For a variety of reasons, however, these documented conditions do not entitle the defendant to damages. Any claims arising out of conditions which existed through November 20, 2001 are barred, as indicated above. A number of the conditions which existed thereafter were relatively minor, such as a kitchen radiator cover in need of repair (Exhibit C), and had no adverse affect on the defendant’s use of the premises. Others were either created by the defendant herself, such a clutter in one bedroom (Exhibit L), or were protracted by the defendant’s refusal to allow access for inspection and repairs, such as repair to the bathroom ceiling (Exhibit I). Still others were significantly exaggerated by the defendant, such as the allegedly chronic leak from the oil tank which was much more likely than not a single incident of overfilling with absolutely no adverse sequella. In summary, the defendant did not prove by credible evidence the elements of a claim for breach of the warranty of habitability with respect to any conditions at the premises.

 

11. Breach of the Covenant of Quiet enjoyment: The defendant alleges that the plaintiffs interfered with her right to quiet enjoyment in several ways: through the behavior of Arthur Bull, their “property manager;” by depriving her of access to common areas; by failing to provide adequate heat and hot water; by maintaining substandard conditions; and by causing excessive noise at the premises. The plaintiffs are entitled to a ruling in their favor with respect to each of these allegations.

 

12. The defendant testified that Mr. Bull behaved rudely towards her, and engaged in behavior towards her adult daughter which amounted to sexual harassment. I do not credit the

 

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defendant’s testimony in this regard. The defendant’s demeanor at trial was evasive and disingenuous. The defendant’s daughter, the direct object of the alleged sexual harassment, did not testify. Mr. Bull credibly denied the allegations.

 

13. I also do not credit the defendant’s testimony that there was inadequate heat and hot water, offensive odors, substandard

conditions, or limited access to common areas which substantially impaired the tenancy. Although there were a number of relatively minor repairs which were necessary at the premises at various times pertinent hereto, the plaintiffs were not at least negligent with respect to any of the conditions, and consistently endeavored reasonably to make repairs. In addition, none of the conditions substantially impaired the tenancy, and some were caused or protracted by the defendant herself, including the defendant’s repeated refusal to allow access or otherwise cooperate with the plaintiffs.

 

14. Finally, the defendant’s argument that the plaintiffs or their agents caused excessive noise at the premises also fails. For a period of time, the plaintiffs, either themselves or through their agents, were engaged in renovation activity which caused noise at the premises, including into the evening on several occasions. Although not required as a matter of law, this conduct could very well, under other circumstances, amount to interference with quiet enjoyment, notwithstanding the plaintiffs’ reliance on a local ordinance which regulated noise only after 10:00 p.m. Under these circumstances, however, the defendant is not entitled to a ruling in her favor. The defendant complained unjustifiably about any number of things. The defendant herself also created multiple disturbances at the premise, over such issues as parking. It is impossible to isolate the defendant’s complaints about the noise-generating renovation activity from the swirl of otherwise unfounded and overstated grievances she regularly leveled at the plaintiffs. The defendant has therefore not established to the court’s satisfaction that this activity

 

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(separate from the others about which she complained) substantially impaired her tenancy, precluding recovery for interference with quiet enjoyment.

 

15. Housing Subsidy Regulations: The plaintiffs testified credibly that they forwarded the relevant notice to quit to HAP. The HAP representative testified credibly that the defendant’s file included a copy of the notice to quit. The plaintiffs complied with the Section 8 rules and regulations.

 

16. Emotional Distress and Chapter 93a: For the reasons set forth above, the plaintiffs are entitled a rulings in their favor on the defendant’s claims for intentional infliction of emotional distress, and violation of Chapter 93a.

 

17. Order for Entry of Judgment: Judgment shall enter for the plaintiffs in the amount of $2775.

 

So entered this 7th day of June, 2005.

 

 

 

 

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End Of Decision

HOUSING COURT

CAROLINE B. SCHAIBLE, DONALD TONGE and DECORTI RODGERSTONGE v. ZONING BOARD OF APPEALS OF THE CITY OF SPRINGFIELD, et al

 

 

Docket # NO. 05-CV-342

Parties: CAROLINE B. SCHAIBLE, DONALD TONGE and DECORTI RODGERSTONGE v. ZONING BOARD OF APPEALS OF THE CITY OF SPRINGFIELD, et al

Judge: /s/Dina E. Fein, Associate Justice

Date: December 29, 2005

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned matter came before the court for trial on November 15, 2005, after which the following findings of fact and rulings of law are to enter, as provided for under Mass. R. Civ. P. 52(a).

 

1. Facts: This is an appeal from a decision by the City of Springfield Zoning Board of Appeals (“ZBA”), denying the plaintiffs’ petition for enforcement of the Springfield Zoning Ordinance (“the Ordinance”). The relevant facts, stipulated to by the parties,[1] are as follows: The defendant Roosevelt Hill, LLC (“Roosevelt”) obtained a building permit from the City of Springfield to construct, and did construct, a single family home at 502 Dwight Road, Springfield. The plaintiff Caroline Schaible owns and occupies a single family home at 492

 

 

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[1] The court wishes to commend counsel for their professional and efficient approach to this case, as exemplified by their having stipulated to facts and thereby significantly streamlined the trial.

 

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Dwight Road, directly abutting the Roosevelt property to the north. The plaintiffs Donald Tonge and Decorti Rodgers-Tonge own and occupy a single family home located at 512 Dwight Road, directly abutting the Roosevelt property to the south.

 

2. The plaintiffs contend that the placement of the Roosevelt building violates Section 503(4) of the Ordinance ( “Section 503(4)”), which provides in pertinent part as follows: “…the front wall of any building shall be set back no farther that (sic) the rear wall of the nearest building on either side thereof facing the same street.” The Tonge home (512 Dwight Road) is closer to the Roosevelt building than the Schaible home (492 Dwight Road). The front wall of the Roosevelt building is not set back farther than the rear wall of the Tonge home, but is set back farther than the rear wall of the Schaible home. All three buildings face Dwight Road.

 

 

3. Standard of Review: This is an enforcement action, as to which the parties seeking enforcement of the Ordinance bear the burden of proof. Moreis v. Oak Bluffs Bd. of Appeals, 62 Mass.App.Ct. 53, 57, 814 N.E.2d 1132, 1136 (2004). Although the meaning of a term or phrase in a zoning ordinance is a question of law, for determination by the court, “deference must be given to the interpretation reached by the local board which enjoys the advantage of greater knowledge of local conditions and the history and purpose of zoning laws in that community.” Kenyon Oil Co., Inc. v. Adams 2003 WL 22870940 *2 (Mass.Super. 2003) citing Manning v. Boston Redevelopment Authority, 400 Mass. 444, 452-53, 509 N.E.2d 1173 (1987); Building Commissioner of Franklin v. Disp. Comm., N.E., 48 Mass.App.Ct. 709, 713, 725 N.E.2d 1059 (2000); Murray v. Board of Appeals of Barnstable, 22 Mass.App.Ct. 473, 479, 494 N.E.2d 1364 (1986) .

 

4. Discussion: The outcome of this case turns on whether the plaintiffs are correct in arguing that the Ordinance prohibits the Roosevelt building from being located behind either of

 

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their homes. That determination, in turn, depends on the meaning of the phrase “the nearest building on either side thereof.” The plaintiffs argue that this phrase requires consideration of the closest buildings on both sides of a structure placed between the two. The defendants argue that the phrase requires consideration only of the closest building of those on either side.

 

5. “Either” is defined as follows: “being the one and the other of two;” “being the one or the other of two.” Merriam-Webster Online (emphasis added). As the alternative definitions of “either” support precisely the parties’ respective and conflicting positions, the plain language of the Ordinance fails to resolve their dispute, and the court looks to several principles of statutory construction for assistance. Substantial deference is given to an interpretation of a statute by the administrative agency charged with its administration, when not contrary to the plain language of the statute and its underlying purpose. Protective Life Insurance Co. v. Sullivan, 425 Mass. 615, 618, 682 N.E.2d 624, 628 (1997). The Ordinance “should be interpreted as a whole to constitute a consistent and harmonious provision.” Kargman v. Commissioner of Revenue, 389 Mass. 784, 788, 452 N.E.2d 492 (1983). A court must not interpret a regulation “in such a way as to make a nullity of its provisions if a sensible construction is available.” Commonwealth v. Wallace, 431 Mass. 705, 708, 730 N.E.2d 275 (2000).

 

6. The role of the Ordinance is not, of course, only to serve as a standard by which to evaluate construction, such as this, which has already been completed; its primary purpose is to set the standards for construction which has yet to be undertaken. Steven Desilets is the Code Enforcement Commissioner for the City of Springfield, and thereby charged with enforcement of the

Ordinance. According to Mr. Desilets, whose department issues an average of 180 building permits per month and who has interpreted Section 503(4) “quite often,” almost “day-to-day,”

 

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the purpose of Section 503(4) is to create “symmetry,” “even flow,” and “front line averaging” as to a series of abutting properties. In pursuit of this goal, Mr. Desilets has consistently interpreted and enforced Section 503(4) as referring “to the nearest building [the new construction] encroaches;” he has never required new construction to be set back in relation to the structures on both sides. Among other benefits, this interpretation facilitates construction on empty lots between two existing offset structures.

 

7. On the other hand, the plaintiffs’ interpretation of Section 503(4) would operate to preclude construction as a matter of right on otherwise buildable vacant lots, where preexisting neighboring buildings are offset to such extent that the front wall of a new structure could not be in line with or in front of the rear walls of both. There is no indication that the Ordinance intended such a ban, and the plaintiffs’ interpretation does not, therefore, promote its “consistent and harmonious” enforcement.

 

8. Finally, if intended to refer to the buildings on both sides of a proposed structure, there would be no need for the word “nearest” in Section 503(4); the interpretation advanced by the plaintiffs would be served equally by the phrase “the building on either side thereof.” The court will not interpret a regulation so as to render any of its terms superfluous. Commonwealth v. Welch, 444 Mass. 80, 64 Mass. App. Ct. 37 (2005).

 

9. Given the plaintiffs’ burden of proof, the deference accorded the enforcement agency as a matter of law, the consistency between the defendants’ position and the goals of the Ordinance, and the unintended (by the Ordinance) consequences of the plaintiffs’ position, the plaintiffs are not entitled to enforcement of Section 503(4) in the manner they seek.

 

10. Ruling and Order for Entry of Judgment: Based upon the foregoing, judgment shall

 

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enter in favor of the defendants, upholding the decision of the City of Springfield Zoning Board of Appeals.

 

So entered this 29th day of December 2005.

 

 

 

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End Of Decision

 

HOUSING COURT

SONIA MARTINEZ v. ROBERT KELLY

 

 

Docket # NO. 05-CV-00424

Parties: SONIA MARTINEZ v. ROBERT KELLY

Judge: /s/Dina E. Fein Associate Justice

Date: December 11, 2006

RULINGS AND ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

 

1. The above-captioned civil matter came before the court on November 21, 2006 for hearing on the defendant’s motion for summary judgment, at which time the court extended an additional period of time for the plaintiff to file materials in opposition to the motion. Upon consideration of the parties’ written submissions and oral arguments, and for the reasons set forth below, the defendant’s motion is allowed.

 

2. Undisputed Facts: For purposes of the pending motion, the material facts are few and undisputed. At times relevant hereto, the plaintiff was a tenant at rental property owned by the defendant. On September 9, 2002, the plaintiff slipped and fell while in the bathtub at the rental unit, sustaining a fracture to the right ankle. At the time of the fall, the tub enclosure wall was loose and separated from the wall. As the plaintiff fell, she tried to grab onto the top of the tub enclosure, which pulled further away from the wall and did not break her fall.

 

3. Summary Judgment Standard: Summary judgment is appropriate “if the pleadings,

 

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depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Mass.R.Civ.P. 56(c). See also,

Cassesso v. Commissioner of Correction, 390 Mass. 419, 422, 456 N.E.2d 1123 (1983); Community Nat’l Bank v. Dawes, 369 Mass. 550, 553, 340 N.E.2d 877 (1976). The moving party bears the burden of establishing the absence of a triable issue, and entitlement to judgment as a matter of law, based on the summary judgment record. Pederson v. Time, Inc., 404 Mass. 14, 16-17, 532 N.E.2d 1211 (1989). A moving party which does not bear the burden of proof at trial is entitled to summary judgment if it submits affirmative evidence, unmet by countervailing materials, that either negates an essential element of the nonmoving party’s case or demonstrates that the nonmoving party has no reasonable expectation of proving an essential element of its case. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991). “If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact …” Pederson, 404 Mass. at 17, 532 N.E.2d 1211. In ruling on a motion for summary judgment, the court views all facts and inferences reasonably drawn therefrom in the light most favorable to the nonmoving party. Bisson v. Eck, 430 Mass. 406, 407, 720 N.E.2d 784 (1990); Gray v. Giroux, 49 Mass.App.Ct. 436, 437, 730 N.E.2d 338 (2000).

 

4. Discussion: The defendant moves for summary judgment on two bases: first, that the plaintiffs claims are barred for her failure to raise them in a previous summary process case; and second, that the plaintiff is unable to establish that the defendant’s negligence, if any, was the proximate cause of her injury. The defendant is not entitled to summary judgment based on his

 

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first argument, as counterclaims are not compulsory in summary process. Uniform Summary Process Rule 5.

 

5. The defendant is entitled to judgment as a matter of law, however, based on the fact that the plaintiff cannot show proximate cause between the defendant’s alleged negligence and her injury. Assuming, as the court must at this state in the proceedings, that the tub enclosure was loose from the wall and that the defendant was on notice of this condition, there is nevertheless no connection between this defect and the plaintiff’s injury. The plaintiff does not argue that the defective tub enclosure caused her to fall. Rather, the plaintiff’s theory of the case is that the defective tub enclosure pulled further away from the wall when she grabbed onto it, and thereby failed to break her fall. The attempt to use the tub enclosure in this way is not, however, a foreseeable consequence of the defendant’s failure to repair it. Nor is there evidence before the court as to how a tub enclosure in good condition would have broken the plaintiff’s fall. The record is devoid, therefore, of any evidence which, if believed, would suffice to meet the plaintiffs burden of proving a necessary element of her claim, namely, causation.

 

 

6. In light of the court’s ruling herein, I need not reach the further argument raised by the defendant, namely that the plaintiffs affidavit in opposition to summary judgment contradicts her sworn statements at deposition.

 

7. Ruling and Order: Based upon the foregoing, the defendant’s motion for summary judgment is allowed, and judgment shall enter in favor of the defendant.

 

So entered this 11th day of December, 2006.

 

 

 

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End Of Decision

 

HOUSING COURT

TOWN OF LEE v. THOMAS TOUPONCE

 

 

Docket # NO. 05-CV-00428

Parties: TOWN OF LEE v. THOMAS TOUPONCE

Judge: /s/Dina E. Fein

Date: November 4, 2005

RULING AND ORDER ON PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

 

After hearing on October 12, 2005, the following rulings and orders are to enter:

 

1. Factual Background: The basic facts underlying the plaintiff’s (Lee’s) motion for preliminary injunction are not in dispute, and are as follows: The Defendant Thomas Touponce (Touponce) owns property on Meadow Street, Lee, Massachusetts (the property). Pursuant to the Lee Zoning By-law (the By-law), the property is zoned “Conservation Residential” (CR). Commercial uses are prohibited in CR districts.

 

2. Touponce has brought various heavy equipment onto the property, including a tree stump grinder, an excavator, and a dump truck. Touponce is allowing others to deliver loads of trees and shrubs to his property, for which he charges a fee, and is amassing large piles of brush and debris on the property. Touponce is grinding this material into compost, which he intends to sell eventually, although he is not yet actively doing so. Touponce has circulated a flyer, advertising the property as a “compost facility.”

 

3. Legal Standard: In considering the plaintiff’s request for a preliminary injunction, the court considers the following factors: the plaintiff’s likelihood of success on the underlying

 

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merits of its claim; whether the requested order promotes the public interest; and the balance of hardship to each party. Comm. v. Mass. CRINC, 392 Mass. 79, 89, 466 N.E.2d 792, 798 (1984).

 

 

4. Plaintiff’s Likelihood of Success on the Merits. Lee alleges that Touponce has violated the By-law by conducting commercial activity on the property. Touponce argues that the activity in question is specifically permitted under the By-law which allows for “farm, forestry or nursery” activity in a CR district, as of right. For the reasons set forth herein, I find and rule that Lee has a high probability of succeeding on the merits of its claim.

 

5. At hearing, Touponce argued that the court’s analysis should be guided by G.L. c. 61A, which addresses the assessment and taxation of agricultural and horticultural land. G.L. c. 61A, s. 1 defines land to be in agricultural use when the property is “primarily or directly used in raising animals . . . or when primarily and directly used in a related manner which is incidental thereto and represents a customary and necessary use in raising such animals and preparing them or the products derived therefrom for market.” G.L. c. 61A, s.2 defines land to be in horticultural use when the property is “primarily or directly used in raising fruits [etc.]…or when primarily and directly used in a related manner which is incidental thereto and represents a customary and necessary use in raising such products and preparing them for market.

 

6. Assuming without deciding that Chapter 61A bears on Touponce’s argument, it nevertheless does not support his position. Touponce’s argument under Chapter 61A depends upon a determination that the composting activities on his property are incidental to raising animals or plants there. “`Incidental,’ when used to define an accessory use, must … incorporate the concept of reasonable relationship with the primary use [of the subject property]. It is not enough that the use be subordinate; it must also be attendant or concomitant.” Henry v. Bd. of

 

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Appeals of Dunstable, 418 Mass. 841, 845, 641 N.E.2d 1334, 1336 (1994). Here, there is no evidence that Touponce is raising either animals or plants on his property; there is no primary use of the property to which Touponce’s composting activity can be attached as incidental.

 

7. Nor is Touponce assisted by G.L. c. 40A, s. 3 (section 3), which provides that local zoning by-laws may not “prohibit, unreasonably regulate or require a special permit for the use of land for the primary purpose of agriculture, horticulture, floriculture, or viticulture,” on any lot at least five acres in size. The section 3 “agricultural exemption” requires a connection between the primary use of the property and the allegedly exempt agricultural use. Thus, for example, the sale of trees grown on another property was not exempt from local zoning restrictions and was properly prohibited by the building inspector, Building Inspector of Peabody v. Northeast Nursery, Inc., 418 Mass. 401, 636 N.E.2d 1334 (1994); and it was permissible to use a large

dehydration machine only to prepare fodder or manure which was either raised on the property or intended for use there, Jackson v. Building Inspector of Brockton, 351 Mass. 472, 478, 221 N.E.2d 736 (1966)(“We would not view as `farming’ use of the machine to dry farm products apart from any farming operation. We think that it is only when dehydration has reasonably direct relation to farming operations of its owner that it can be regarded as in any sense `farming’.”)

 

8. There is no factual basis in the record before the court for concluding that the composting activity in question is incidental to any agricultural or horticultural primary use, without which the activity is neither permitted as of right under the By-law nor exempt under section 3 from regulation. To rule otherwise would permit property owners to engage in otherwise prohibited commercial activity simply by connecting that commerce to agricultural or horticultural activity elsewhere. Such an interpretation would effectively nullify the ability of municipalities to

 

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regulate commercial activity in residential districts, obviously contrary to the legislative intent in allowing for local zoning regulation.

 

9. Public Interest and Balancing of Harm: “When the government acts to enforce a statute or make effective a declared policy of [the Legislature), the standard of public interest and not the requirements of private litigation measure the propriety and need for injunctive relief.” Comm. v. Mass. CRINC, 392 Mass. 79, 89, 466 N.E.2d 792, 798 (1984), citing United States v. D ‘Annolfo, 474 F.Supp. 220 (D.Mass.1979). By their very nature, violations of duly adopted local ordinances degrade the public’s confidence in the municipality and negatively affect the public interest. Lee has a responsibility to all of its citizens to enforce the By-law. The risk of injury to the public interest associated with denying the requested relief outweighs the harm to the defendant which will flow from an order prohibiting him from engaging in commercial activity in violation of the By-law. This is particularly so given that Touponce is not yet selling the compost, and therefore not yet reaping the financial benefit associated with the commercial activity, other than by way of the fees charged to those who deliver trees, brush, etc., to the property. The balance of harms favors the injunctive relief requested.

 

10. This ruling should not be read as prohibiting Touponce in general from conducting composting activities actually associated with and incidental to agricultural or horticultural activities on his property. Based upon the record before the court, however, it would appear at a minimum that Touponce has put the cart before the horse; while he may intend to put his property to agricultural or horticultural use, there is no evidence that he has yet done so, and at this stage the composting activity therefore stands alone as

impermissible commercial activity.

 

10. Order: Based upon the foregoing, a preliminary injunction shall issue, enjoining Touponce from accepting onto his property for a fee brush, trees, logs, or any other organic

 

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material not raised on his property; from processing organic material on his property; and from selling organic material on his property. Touponce is also order to store properly any heavy equipment located on his property. Finally, Touponce is ordered forthwith to cease and desist any activity enjoined herein.

 

11. The Clerk’s office is requested to schedule this matter for pretrial conference.

 

So entered this 4th day of November, 2005.

 

 

 

cc: Robert G. Fields, Esq.

Clerk Magistrate

Michael Gove, Esq.

Law Clerk

 

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End Of Decision

 

HOUSING COURT

JUAN PAGAN, ET AL, Plaintiffs v. CHATEAU ASSOCIATES OF SPRINGFIELD, LP, ET AL, Defendants

 

WESTERN DIVISION

 

Docket # DOCKET NOS. 05-CV-493 THROUGH 05-CV-500

Parties: JUAN PAGAN, ET AL, Plaintiffs v. CHATEAU ASSOCIATES OF SPRINGFIELD, LP, ET AL, Defendants

Judge: /s/Dina E. Fein

Associate Justice

Date: October 28, 2005

RULINGS AND ORDER ON PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER

 

 

The above captioned matter came before the court on September 25, 2005 for hearing on the plaintiffs’ motion for temporary restraining order,[1] after which the following rulings and order shall enter:

 

 

FACTUAL BACKGROUND

 

1. Based upon the record before the court, the plaintiffs have demonstrated a probability of establishing the following facts at trial. The plaintiffs are tenants under leases of residential units located at 15 Temple Street, Springfield (the property). The property is owned by the defendant Chateau Associates of Springfield, L.P. (Chateau) and managed by the defendant Garden Park Management Co. (Garden Park). The plaintiffs’ rent at the property is subsidized by the U.S. Department of Housing and Urban Development (HUD). The rental subsidies are attached to the

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[1]Although the plaintiffs moved for a temporary restraining order, it was heard with notice to the defendants, who submitted a lengthy opposition. Pursuant to Mass. R. Civ. P. 65, the court will therefore treat the motion as being for a preliminary injunction.

 

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units, not to the respective tenants. The plaintiffs comprise approximately 13 households, all very low income, most of which include children, disabled, or elderly individuals.

2. The property consists of 65 units on 6 floors, and has a flat, rubber roof covered with ballast rock. There is a storm drain system built into the roof, consisting of four drains. Professional inspection of the roof in July, 2002 revealed that the roof was in “fairly good condition,” with some areas in need of “immediate attention.” Repairs to the roof were undertaken at that time, including removing water from between layers of the rubber near a drain, installing a drain basket, and distributing ballast. No repairs to the roof have been undertaken since July, 2002.

3. During the period October 2 to October 9, 2005, the Springfield area experienced very heavy rainfall. Throughout the day on October 8, 2005, one of the sixth (top) floor tenants, the plaintiff Ruth Centano, heard “creaking” noises from the ceiling of her apartment. On October 9, 2005, the roof at the property collapsed, allowing an enormous infusion of water into the building. The record as developed to date indicates that one of the four storm drains on the roof was clogged and therefore failed; that as a result of the storm drain failure, water collected on the roof rather than draining through the system; that the clogged drain would, if operating correctly, have been adequate to handle drainage in the area of the roof where it was located; and that one of the four roof drains was determined to be missing a screen after the roof collapsed.

4. In response to the roof collapse and resulting property damage, the City of Springfield Department of Code Enforcement condemned the plaintiffs’ units and ordered the plaintiffs to vacate forthwith. Since October 9, 2005, the plaintiffs have been housed temporarily by agreement of the parties. That agreement expires as of October 27, 2005, after which date the plaintiffs will be without housing until such time as their units are repaired, which is estimated to

 

 

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take five months.[2]

 

LEGAL STANDARD

4. To obtain injunctive relief, the plaintiffs must show the following: a reasonable likelihood of success on the merits of their underlying claim; a risk of irreparable harm in the absence of injunctive relief; that the balance of hardship favors them; and that the public interest is served by the sought injunctive relief. “Where the balance of relative hardships ‘tips decidedly toward the plaintiff,’ the plaintiff need not show as robust a likelihood of success on the merits.” Republic of Philippines v. Marcos, 818 F.2d 1473, 1477-78 (9th Cir.1987), cert. den. 490 U.S. 1035 (citations omitted). Rather, in such a case the plaintiff “must raise questions going to the merits so serious and substantial as to make them a fair ground for litigation and more deliberate investigation.” Franklin v. War Tax Resistors ,1993 WL 818588 *3 (Mass.Super. 1993), citing Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1205-06 (2″d Cir. 1970).

 

DISCUSSION

5. Probability of Success on the Merits: The plaintiffs’ underlying legal claims are brought pursuant to G.L. c. 186, s.14 (Section 14), which provides in pertinent part that a landlord who “directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant” shall be liable for damages and injunctive. As is well known to counsel for the parties, liability under Section 14 does not require a showing that the landlord intended the harm in question, but rather requires only that the landlord was “at least negligent.” Al-Ziab v. Mourgis, 424 Mass. 847, 850 (1997). Given the balance of hardships herein, see

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[2] Colloquy with counsel at hearing disclosed that alternative housing arrangements may have been arranged or pending for several of the plaintiff households. The majority, however, do not have alternative arrangements.

 

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infra., the plaintiffs are therefore required to raise serious and substantial questions as to whether the landlord was at least negligent with respect to the events which led to the condemnation of their units.

6. Upon close consideration of the record to date, I am persuaded that the plaintiffs have met this standard. The roof in question was last repaired in July, 2002, including drain system repairs. The plaintiffs have offered support for the position that a roof such as the one at issue here should be subject to regular inspections by trained personnel. Although counsel for the defendants indicated at hearing that the defendants’ maintenance staff undertook regular inspections of the roof, there are no records to that effect, and therefore no indication in the record

as to the frequency of those inspections, nor whether the staff were appropriately trained to undertake them. Nor does the record reflect that the defendants, knowing as they did or should have in early October of impending rains they themselves characterize as “unprecedented,” took any particular steps to secure the drainage system or otherwise prepare the roof.

7. In addition, the sworn statement by Ms. Centano that she heard creaking throughout the day on October 8 would tend to suggest that water was already accumulating the day before the roof collapsed. This possibility is significant as it bears both on whether the defendants knew or should have known of the developing problem, and suggests that the defendants may well have had the opportunity to take action to avoid the ultimate collapse. To be clear, the record before the court does not include such evidence of negligence as would be required at trial. It does, however, raise questions which are “fair ground for litigation and more deliberate investigation.”

8. Risk of Irreparable Harm: The defendants do not dispute that the plaintiffs are all very low income individuals, many of whom are also disabled or elderly. These characteristics make

 

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it much more difficult for them to secure alternative housing in the private market, and they are therefore vulnerable to becoming homeless in the absence of the injunctive relief requested. A period of homelessness, with its attendant risks and enormous burdens, cannot be adequately compensated by damages. The plaintiffs are at undeniable risk of irreparable harm if they are not housed pending return to their units.

9. Balance of Hardship: The hardship which would flow to the plaintiffs in the absence of injunctive relief far outweighs that which will befall the defendants by virtue of this order. This is not to minimize the burden on the defendants, nor to overlook the defendants’ concern that HUD will not authorize payment for alternative housing. Nevertheless, the respective hardships fall into two qualitatively different categories: health and safety consequences for the plaintiffs, and financial consequences for the defendants. In addition, the requested relief is temporary in nature, intended only to cover the period until the plaintiffs return to their units. As among the parties, the defendants are in a much better position to influence that duration, and thereby limit the relief ordered. The balance of hardships tips decidedly towards the plaintiffs.

10. Public Interest: The public has an interest in insuring that the plaintiffs are temporarily housed until such time as they may return to their subsidized units. As indicated above, many of the plaintiffs are among society’s most vulnerable members, and the public has already invested considerably, by way of rental subsidies, in insuring that these individual have decent, safe, and stable housing. The public has an interest in securing the return on that investment, which would be significantly jeopardized by denying the requested relief.

11. The court is mindful that Debra Katz and Blanche Pacheco,

respectively the president and property manager of Garden Management, have worked tirelessly to assist the plaintiffs over the past several weeks, and they are to be commended for their efforts. It is also apparent to the

 

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court that the parties and their attorneys share the goal of repairing the property and returning the plaintiffs to their units as soon as possible, and the cooperative approach to this litigation bodes well for realizing that goal.

12. Conclusion and Order: Based upon the foregoing, a preliminary injunction shall enter, as follows:

A. The defendants are ordered to contribute towards the cost of alternative housing for the plaintiffs. The defendants’ contribution shall not exceed the monthly contract rent for the plaintiffs’ respective units, less the tenant share paid by each household. The defendants’ obligation hereunder shall cease as to a given plaintiff at such time as the condemnation order is lifted as to his or her unit. Counsel for the parties are instructed to confer for the purpose of establishing a mechanism for payment under this order.

 

B. The plaintiffs are ordered to take all reasonable steps to secure temporary alternative housing. The plaintiffs are further ordered to take all reasonable steps to facilitate the defendants’ access to their units to make repairs, including organizing and/or removing and/or storing any personal belongings therein. Counsel for the parties are instructed to confer for the purpose of developing an approach to dealing with the plaintiffs’ personal belongings.

 

C. The Clerk’s office is requested to schedule this matter for pretrial conference.

 

D. The Housing Specialist Department is requested to confer with counsel for the parties to determine whether mediation would be of assistance.

 

 

So entered this 28th day of October, 2005.

 

 

 

 

 

cc: Robert G. Fields, Clerk Magistrate

Kevin R. Byrne, Sr., Chief Housing Specialist

 

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End Of Decision

 

 

HOUSING COURT

ALFRED ROY III, Plaintiff v. ANDREW HOCHBERG and BARBARA HOCHBERG, Defendants

 

WESTERN DIVISION

 

Docket # DOCKET NO. 05-CV-00582

Parties: ALFRED ROY III, Plaintiff v. ANDREW HOCHBERG and BARBARA HOCHBERG, Defendants

Judge: /s/Dina E. Fein

Associate Justice

Date: December 30, 2005

RULING AND ORDER ON DEFENDANTS’ MOTION FOR PRELIMINARY INJUNCTION

 

The above-captioned matter came before the court on December 28, 2005 for hearing on the defendants’ motion for preliminary injunction, after which the following rulings and order shall enter:

 

1. It is unlawful for a landlord to “transfer[] the responsibility for payment for any utility services to the occupant without his knowledge or consent.” G.L. c. 186, s. 14. The question presented by the defendants’ motion, therefore, is whether they have established a reasonable likelihood of prevailing on their claim that they are entitled, by virtue of their lease with the

plaintiff, to use electrical service in the basement, for which the plaintiff pays, to effectuate repairs to common areas at the premises (the roof). This question arises in the context of conduct in which it is alleged, and not disputed, that the defendants have used electrical service in the basement in the past to complete common area repairs, and that the plaintiff recently damaged an

 

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electrical cord connecting power tools being used by the defendants’ agents to a power source in the basement.

 

1. The lease between the parties provides in pertinent part as follows at paragraph 9:

 

Tenant shall be responsible for paying for electrical service for the premises. The tenant specifically acknowledges that electric service in the basement controlling lights and furnace will be paid for by Tenant. Tenant further acknowledges that consideration of lease reduction from a former tenant who was paying $625.00 per month to Tenant’s rent of $550.00 per month is in consideration of Tenant taking responsibility for electric service for the Premises.

3. When read together, G.L. c. 186, s.14 and 105 CMR 410.254 allow for a situation in which a tenant assumes responsibility to pay for electricity serving common areas at a rental property. Unfortunately, the lease language in question is not the pinnacle of clarity, leaving open the question of whether the tenant agreed to pay for all electricity in the basement, or

rather only the electricity needed for lights and the furnace. In this way, the parties’ dispute goes beyond that which the law itself is well suited to resolve; the court must look at the situation practically. As a practical matter, the plaintiff has acquiesced in the past to use of the basement electricity for common area repairs, and there is no way to segregate the electricity for the lights and furnace in the basement, from that which is available through outlets in the basement. This reality, in combination with the $75 rent credit extended to the tenant in consideration of his assuming responsibility for electricity at the premises, leads to the following result:

4. ORDER: The defendants may use electrical service in the basement at the premises as reasonably necessary to effectuate repairs to common areas, conditioned upon their reimbursing the plaintiff in the amount of any electrical bills which exceed $75 per month, beginning for the month of November, 2005, and continuing for each month thereafter until such time as the

 

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common area repairs are completed. The plaintiff is enjoined from interfering with the defendants’ use of electricity in the basement for the purpose of completing common area

repairs. Any disputes which arise concerning implementation of this order shall be brought at the first instance to the court’s Housing Specialist Department, the determination of which shall be binding upon the parties unless superceded by order of a judge.

 

 

So entered this 30th day of December, 2005.

 

 

 

 

cc: Kevin R. Byrne, Sr. Chief Housing Specialist

 

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End Of Decision

 

HOUSING COURT

THOMAS SHARP, Plaintiff v.TOWN OF WESTFIELD, et al, Defendants

 

 

WESTERN DIVISION

 

Docket # DOCKET NO. 05-CV-652

Parties: THOMAS SHARP, Plaintiff v.TOWN OF WESTFIELD, et al, Defendants

Judge: /s/Dina E. Fein

Associate Justice

Date: March 16, 2006

RULING AND ORDER ON DEFENDANT’S MOTION TO DISMISS

The above-captioned matter came before the court on February 17, 2006, for hearing on the defendant Craig Chervat’s motion to dismiss, after which the following ruling and order shall enter:

 

1. This is an appeal by the plaintiff Thomas Sharp (“Sharp”) under G.L. c. 40A, s.17 (“Section 17”), from a decision by the Westfield Zoning Board of Appeals (“ZBA”) granting the defendant Craig Chervat (“Chervat”) a variance to construct a single family home at 72 Simmons Brook Drive, in Westfield. Chervat has moved to dismiss the complaint, arguing that Sharp failed to comply with various procedures and time frames prerequisite to his appeal. The undisputed facts, however, are to the contrary, and Chervat’s motion to dismiss is therefore denied.

2. Sharp was required to take four steps under Section 17: appeal the ZBA decision within 20 days; provide notice of the appeal within 20 days to the city clerk; send written notice of the complaint with a copy thereof to all defendants within 14days after filing the complaint; and,

 

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within twenty-one days after the entry of the complaint, file with the court an affidavit confirming such notice to the defendants.

 

3. The ZBA decision in this case was entered with the Westfield City Clerk on December 8, 2005. Sharp filed his appeal to this court on December 22, 2005 and notified the city clerk of the appeal on December 23, 2005. Both of these events occurred within 20 days of the ZBA decision, and are therefore timely.

4. Sharp sent notice of his complaint to all defendants on January 5, 2006, 14 days after filing the complaint in court. As the statute requires that notice be sent within 14 days, not received within 14 days, notice was timely.

5. Finally, on January 19, 2006, 23 days after the complaint was entered in court (and 2 days beyond the period provided for by statute), Sharp filed his affidavit with the court, verifying timely notice to the defendants of the complaint. Filing of the affidavit is akin to filing an affidavit of service in a civil case, the purpose of which is to apprize the court that the defendants are on notice of the case, and that pretrial litigation should commence. Here, the defendants were timely informed of the appeal, and the court was not delayed in scheduling the case. There is no prejudice associated with Sharp’s minimally late filing of the affidavit, and therefore no reason for dismissing the case based thereon.

4. Order: Based upon the foregoing, the defendant’s motion to dismiss is denied.

 

 

So entered this 16th day of March, 2006.

 

 

 

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End Of Decision

 

HOUSING COURT

THOMAS E. SHARP, Plaintiff, v. CITY OF WESTFIELD, WILLIAM A. MURRAY, III, CHRISTOPHER KEEFE, and JOHN O’BRIEN, as Members of the WESTFIELD ZONING BOARD OF APPEALS, and CRAIG CHARVAT, applicant, Defendants

 

 

WESTERN DIVISION

 

Docket # DOCKET NO. 05-CV-00652

 

Parties: THOMAS E. SHARP, Plaintiff, v. CITY OF WESTFIELD, WILLIAM A. MURRAY, III, CHRISTOPHER KEEFE, and JOHN O’BRIEN, as Members of the WESTFIELD ZONING BOARD OF APPEALS, and CRAIG CHARVAT, applicant, Defendants

Judge: /s/Dina E. Fein

Associate Justice

Date: July 13, 2006

RULINGS ON DEFENDANTS’ MOTIONS TO STRIKE AND ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

 

The above-captioned matter came before the court on June 6, 2006 for hearing on various motions, after which the following rulings and orders are to enter:

1. Plaintiff Thomas E. Sharp (Sharp) has brought this action seeking to overturn the decision of the Westfield Zoning Board of Appeals (ZBA) granting Defendant Craig Charvat (Charvat) a frontage variance for approximately 3.8 acres of land located on Simmons Brook Drive in Westfield (the locus). Before the court are two motions to strike filed by the defendants, a motion for summary judgment filed by the defendants, and a motion for summary judgment filed by the plaintiff. The motions will be addressed in turn, as follows:

 

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DEFENDANTS’ MOTION TO STRIKE EXHIBIT E AND PORTIONS OF EXHIBIT D OF PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

 

2. The defendants move to strike the affidavit of Donald Mailloux, a realtor for Caldwell Banker-Upton Massamont Realtors. Mr. Mailloux’s affidavit has been offered by the plaintiff to show that granting the variance will reduce the plaintiff’s property values. The defendants contend, first, that Mr. Mailloux is not qualified to offer an opinion on the value of the real estate in general and, second, that Mr. Mailloux is not sufficiently familiar with the subject property to offer an opinion on the value of the specific land in question.

 

3. It is well settled that an individual who wishes to opine on the value of real estate in a judicial process must possess “sufficient experience and knowledge of values of other similar real estate in the particular locality.” Lee Lime Corp. v. Massachusetts Turnpike Authority, 337 Mass. 433, 436, 149 N.E.2d 905, 907 (1952). It is not the case, however, that only a real estate appraiser, as opposed to a realtor or real estate broker such as Mr. Mailloux, may hold such experience. Nor does the fact that Mr. Mailloux works in Hampshire and Franklin Counties, as

opposed to Hampden County where the subject property is located, per se render him disqualified to offer an opinion in this case. At this stage in the proceedings, the plaintiff has provided sufficient evidence of Mr. Mailloux’ relevant experience so as to reasonably infer that he is qualified to offer an opinion at trial. The defendants’ motion to strike the affidavit of Donald Mailloux is therefore DENIED.

4. The defendants also move to strike portions of the affidavit of the Plaintiff Thomas E. Sharp and his wife, Joanne B. Sharp, including the following statements: “We believe that construction of house [sic] on Parcel 72 (Lot “A”) will reduce the fair market value of our property,” Of 2); and “[w]e also feel that the value of our property will be reduced because of the

 

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increased flow of water onto our land that will occur if a house and driveway are constructed next door,” (p. 3). Assuming without deciding that these statements are relevant, there is no evidence before this Court that the Sharps are qualified to make them. As to these two statements, the defendants’ motion to strike is therefore ALLOWED.

 

5. The defendants also move to strike the following statements from the Sharps’ affidavit:

 

The minutes of the Planning Board in 1978 indicate that they, too, worried about drainage prior to granting frontage waivers to Lots 10 and 11.

 

In the 1978 minutes, Mr. Charvat’s engineer gave concerned Planning Board members the impression that Lot “A” would remain open space.

 

We are convinced that the Planning Board believed that this frontage would always be available for such use [snow removal] when they approved the subdivision.

 

6. The Sharps are not competent to interpret the Planning Board minutes. Nor do the minutes themselves support the conclusions reached by the Sharps. There is no indication that the Planning Board as a whole was worried about drainage. Furthermore, there is no discussion at all regarding snow removal within the subdivision. See also the court’s discussion at p. 10, below. The defendants’ motion to strike these three statements is therefore ALLOWED.

DEFENDANTS’ MOTION TO STRIKE PORTIONS OF PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND PORTIONS OF PLAINTIFF’S MEMORANDUM IN SUPPORT OF MOTION FOR

SUMMARY JUDGMENT

 

7. The defendants also move to strike one paragraph from the Plaintiff’s Motion for Summary Judgment and one paragraph from the

Plaintiff’s Memorandum in Support of Plaintiff’s Motion for Summary Judgment, as not being supported by the record. The first paragraph reads:

 

The locus has been owned by the Charvat family and was a

 

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portion of a large tract of land. The land was subdivided, lots sold off and this is the remaining piece.

 

8. The plaintiff responds that this paragraph is reasonably inferred from the subdivision plan and the minutes from the City of Westfield Planning Board meeting of May 7, 1996, both offered as attachments to the plaintiff’s Memorandum in Support of Motion in Opposition to Defendant’s (sic) Motion for Summary Judgment. While the better practice would have been for the plaintiff to submit this evidence by affidavit, the facts which form the basis for the statement above are nevertheless found in the subdivision plan and the referenced minutes and are sufficiently established in the record. This portion of the defendants’ motion to strike is therefore DENIED.

 

9. The second paragraph the defendants seek to strike reads:

 

The locus is a parcel in a subdivision that was created by Daniel Charvat, Craig Charvat’s father. Daniel not only owned the land within the subdivision, but also owned property abutting the locus. The locus was not listed as a lot on the subdivision plan but rather was called parcel A, and never intended to be developed. Daniel then sold the lots in the subdivision and the land abutting the locus. Now that the lot is isolated, Craig Charvat has come before the Zoning Board to request a variance. The need for a variance was caused by the previous owners of the land and well known by Craig Charvat. This was a self-created need for a variance.

 

10. Within this paragraph are two statements that are not supported by the record. First, the plaintiff asserts that parcel A was “never intended to be developed” and argue this is supported by the minutes of the Planning Board meeting from April 4, 1978, when Daniel Charvat originally sought permission to create the subdivision. A close reading of the minutes, however, shows only that David Bean, an employee of Conlon Associates, the engineering firm which designed the subdivision plan, stated that he [Bean] “believes that it is the intention of Mr. Charvat to deed Parcel A to the City at the end of the three year period.” The minutes are a

 

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summary of statements noted at the time, as opposed to verbatim testimony, and are too removed and incomplete to support the

proposition advanced by the plaintiff. In addition, Mr. Beans’s belief as to the ultimate use (or non-use) of the locus is not probative of Daniel Charvat’s actual intent, and there is no indication that the Planning Board relied on Mr. Bean’s statement. Finally, there is no basis in the record for concluding that Mr. Bean’s representation would be binding on Daniel Charvat or his successors in interest. As to this portion of the paragraph above, the defendants’ motion to strike is therefore ALLOWED.

11. The second statement in the above paragraph which is not supported by the record is that “Daniel Charvat then sold the lots in the subdivision and the land abutting the locus.” While the subdivision plan does show the eighteen lots created by Daniel Charvat in 1978 and two lots to the east of parcel A, there is no indication, either on the plan, in the various Planning Board meeting minutes, or in any affidavit before the court, as to which of the lots were sold, by whom, and when. As to this portion of the paragraph above, the defendants’ motion to strike is therefore ALLOWED.[1]

 

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

 

12. The defendants have moved for summary judgment, arguing that the plaintiff is not a person aggrieved by the grant of the variance and, therefore, does not have standing to bring this action.

13. Summary Judgment Standard: Summary judgment is appropriate when no material

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[1]The court recognizes some inconsistency between denying the defendant’s motion to strike the statement in the motion itself, and allowing the motion to strike the expanded statements in the memorandum. This is due in part to the difficulty in parsing out precisely which statements find support in the record, and which do not, a difficulty which is somewhat exacerbated by the form in which they are offered. Given the court’s ultimate ruling herein, however, any minor inconsistency is of little consequence. Should the case return to the court following remand, it is assumed that the record will be clarified.

 

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facts are in dispute and the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c); Highlands Ins. Co. v. Aerovox, 424 Mass. 226, 232, 676 N.E.2d 801 (1997). The moving party bears the burden of demonstrating affirmatively the absence of a triable issue of fact. Pederson v. Time Inc., 404 Mass. 14, 16-17, 532 N.E.2d 1211 (1989). A moving party which does not bear the burden of proof at trial is entitled to summary judgment if it submits affirmative evidence, unmet by countervailing materials, that either negate an essential element of the nonmoving party’s case or demonstrate that the nonmoving party has no reasonable expectation of proving an essential element of its case. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575

N.E.2d 734 (1991). The opposing party cannot rest on the pleadings or on mere assertions of disputed facts to defeat the summary judgment motion. “If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact ….” Pederson, supra, 404 Mass. at 17, 532 N.E.2d 1211. When reviewing a summary judgment record, the court credits facts in the light most favorable to the nonmoving party. Bisson v. Eck, 430 Mass. 406, 407, 720 N.E.2d 784 (1990); Gray v. Giroux, 49 Mass.App.Ct. 436, 437, 730 N.E.2d 338 (2000).

 

14. Standing: Only a “person aggrieved” may challenge the decision of a “board of appeals or any special permit granting authority.” G.L. c. 40A, s. 17. The plaintiff, as an abutter entitled to notice of a zoning board of appeals hearing under G.L. c. 40A, s. 11, enjoys a rebuttable presumption of standing. Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 721, 660 N.E.2d 369, 372 (1996). The defendants, by the affidavit of James Pettengill, the Westfield City Assessor, have rebutted the plaintiff’s presumption of standing by producing credible evidence that the fair market value of the plaintiff’s property will not be harmed by the

 

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grant of the variance. Watros v. Greater Lynn Mental Health & Retardation Ass ‘n., 421 Mass. 106, 111, 653 N.E.2d 589, 592 (1996). The issue of standing, therefore, is to be “decided on all the evidence with no benefit to the plaintiffs from the presumption.” Marashlian, 421 Mass. at 721, 660 N.E.2d at 372.

15. The plaintiff has submitted an affidavit of Donald Mailloux, a realtor for Caldwell Banker-Upton Massamont Realtors, which opines that the variance will reduce the fair market value of the plaintiff’s property. Drawing all inferences in the light most favorable to the non-moving party, as is required at this stage in the proceedings, the Mailloux affidavit, at the very least, raises a question of fact as to the effect the variance will have on the value of the plaintiff’s property. The defendants’ motion for summary judgment is therefore DENIED.

 

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

16. The plaintiff has moved for summary judgment on two grounds. First, that the ZBA did not make findings which satisfy the requirements of G.L. c. 40A, s. 10 (s. 10)[2]; and, second, that the second prong of s. 10 (regarding substantial hardship) cannot be met, because the applicant or his predecessor created the very hardship which the variance seeks to redress.

17. Required Findings Under s. 10: Pursuant G.L. c. 40A, s. 15, the ZBA was to make “a detailed record of its proceedings . . and set[] forth clearly the reason for its decision” in regards to the findings required by s. 10. These findings are conjunctive and the failure to establish any

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[2] Section 10 reads, in part: The permit granting authority may grant “a variance from the terms of the applicable zoning ordinance or by-law where such permit granting authority specifically finds that owing to circumstances relating to the soil conditions, shape, or topography of such land or structures and especially affecting such land or structures but not affecting generally the zoning district in which it is located, a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner or appellant, and that desirable relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of such ordinance or by-law.”

 

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one of them is fatal. Kirkwood v. Board of Appeals of Rockport, 17 Mass.App.Ct. 423 (1984). The first finding of the ZBA is sufficient. The ZBA stated that the locus was “oversized and substantially larger than any other lot in the sub-division and neighborhood.” “The special circumstances [of the lot] are sufficient in our view to support the board’s required finding of special circumstances relating to the land but not affecting generally the zoning district in which it is located.” Paulding v. Bruins, 18 Mass.App.Ct. 707, 470 N.E.2d 398 (1984).

18. The third finding of the ZBA is also adequate. The location of the locus in a Rural Residential zone (in which single detached dwellings are allowed as of right) and the oversized nature of the lot (when compared to it neighbors), sufficiently support the ZBA’s determination that the development of one residential home would not lead to “any harm resulting to the neighborhood.”

19. The second required finding, however, is lacking. As to whether “a literal enforcement of the provisions of the ordinance or by-law would involve substantial hardship, financial or otherwise, to the petitioner,” the ZBA stated, “a literal enforcement of the frontage requirement would cause substantial hardship to the petitioner.” The “requirement for specific findings and a detailed record of the board’s proceedings and the reason or reasons for its decision `is not satisfied by a mere repetition of the statutory words.’ Warren v. Board of Appeals of Amherst, 383 Mass. 1, 10, 416 N.E.2d 1382, 1388 (1981), quoting Brackett v. Board of Appeals of the Building Dept. of Boston, 311 Mass. 52, 54, 39 N.E.2d 956 (1942).

20. The defendants point out that the ZBA also found the highest and best use of the parcel to be as a single family home, and argue that “[i]f a lot is unbuildable without the grant of a variance and the only economic use of the lot is as a residential home site, the substantial hardship prerequisite is met.” This argument overlooks the totality of the ZBA’s finding,

 

 

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however, namely that “[t]he highest and best use of the parcel would be a single family home rather than a sub-division with two and possibly three homes.” This aspect of the ZBA’s finding is not adequately explained; the ZBA’s recognition that the applicant may be able to build on the lot without a variance undercuts the defendants’ argument that there exists a substantial hardship to the petitioner. As the decision lacks findings on this issue beyond the repetition of language found in s. 10, the decision is inadequate as a matter of law. The plaintiff’s motion for summary judgment is therefore ALLOWED and the decision is remanded to the ZBA for further proceedings consistent with this opinion.

21. Self-Imposed Hardship: “A landowner will not be permitted to create a dimensional nonconformity if he could have used his adjoining land to avoid or diminish the nonconformity.” Planning Board of Norwell v. Serena, 27 Mass.App.Ct. 689, 690, 542 N.E.2d 314, 315 (1989), aff’d, 406 Mass. 1008, 550 N.E.2d 1390 (1990), and cases cited. This restriction applies to subsequent purchasers of a nonconforming property. See Smigliani v. Board of Appeals of Saugus, 348 Mass. 794, 205 N.E.2d 227 (1965). The record currently before the court does not establish that Mr. Charvat created the hardship which he seeks to redress by obtaining a variance. The record does not establish what the frontage requirements were when Parcel A was created, when if at all Mr. Charvat acquired Parcel A, and whether he acquired the parcel before or after he applied unsuccessfully for a waiver of the minimum frontage requirements. The plaintiff’s motion for summary judgment on this issue is therefore DENIED.

22. ORDER: This case is remanded to the Westfield Zoning Board of Appeals for further proceedings consistent with the rulings herein. The court will retain jurisdiction of this case. The defendant ZBA is ordered to file its further decision with the court. Any party aggrieved by the decision of the ZBA on remand may, within 20 days of the decision, request further hearing

 

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before the court. The failure of a party to request further hearing within 20 days of the ZBA’s decision on remand will constitute a waiver by that party of the right to judicial review.

 

 

So entered this 13th day of July, 2006.

 

 

 

 

cc: Peter Montori, Esq. Assistant Clerk Magistrate

 

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End Of Decision

HOUSING COURT

THOMAS SHARP, Plaintiff v. TOWN OF WESTFIELD, et al, Defendants

 

WESTERN DIVISION

 

Docket # DOCKET NO. 05-CV-652

Parties: THOMAS SHARP, Plaintiff v. TOWN OF WESTFIELD, et al, Defendants

Judge: /s/Dina E. Fein

Associate Justice

Date: February 22, 2006

RULING AND ORDER ON WESTFIELD’S MOTION TO ALTER THE COURT’S RULING

 

The above-captioned matter came before the court for hearing on the Town of Westfield’s (“Westfield’s”) motion to amend the court’s ruling of July 13, 2006. For the reasons set forth herein, the motion is allowed.

1. The case came before the court originally on the parties’ cross-motions for summary judgment. The court denied the defendants’ motion for summary judgment alleging that the plaintiff did not have standing, as the record reflected a genuine dispute on the material question of whether the subject variance would reduce the fair market value of the plaintiffs property. The court allowed in part the plaintiffs motion for summary judgment, ruling that the Zoning Board of Appeals’ (“ZBA’s”) decision lacked specificity with respect to its finding that “a literal enforcement of the frontage requirement would cause substantial hardship to the petitioner.” The court remanded the case for further proceedings consistent with the ruling.

2. Westfield comes before the court now, seeking an amended order permitting the ZBA to

 

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convene a full hearing on Mr. Charvat’s request for a variance, based on the fact that 2 of the 3 ZBA members who heard Mr. Charvat’s original request have since left the ZBA. Mr. Charvat responds that requiring him to re-apply for a variance and submit to another full hearing is time-consuming, costly, and unfair. There is merit to both arguments. On balance, however, and with the conditions set forth herein, the court concludes that the better course is to allow the ZBA to convene a full hearing on Mr. Charvat’s application for a variance.

3. Mr. Charvat argues that “the court in its de novo review…has essentially found for Mr. Charvat on all but one point…” Memorandum in Opposition, p. 3. This statement does not accurately reflect the court’s position, nor the posture of the case. The court has not yet conducted a de novo review of the decision below, as the parties filed cross-motions for summary judgment, each claiming the right to judgment as a matter of law on the undisputed facts. The court has simply ruled that the original findings on one issue – substantial hardship – were inadequate. In permitting Westfield to conduct further proceedings consistent with that ruling, the court intended that the municipality have wide latitude as to the nature of those proceedings; it could have elected to supplement its findings based on the existing evidentiary record, or re-convened to take further evidence. Now, given the new composition of the ZBA, the question presented is whether that evidence should be limited to the substantial hardship

issue, or rather should cover all factors associated with a request for variance.

4. I conclude that limiting the evidence to a single issue would likely prove unworkable, and contrary to the interests of judicial economy and deference towards the municipality. I do not see any basis, however, for requiring Mr. Charvat to reapply for a variance, with the expense and

 

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delay attendant thereto. Rather, the ZBA shall, at its own expense[1] and as soon as practicable, provide notice to abutters of further hearing on Mr. Charvat’s pending application. The procedures set forth in the court’s order dated July 13, 2006, p. 22, shall apply thereafter.

 

 

So entered this 22nd day of February, 2006.

 

 

 

 

cc: Peter Montori, Esq. Assistant Clerk Magistrate

 

 

 

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[1]Mr. Charvat should not bear an expense which results from a change in the composition of the ZBA. In addition, the case was remanded for further hearing because the original decision was inadequate. It is appropriate under these circumstances to require the ZBA to bear the expense of notifying abutters.

 

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End Of Decision

 

 

HOUSING COURT

PETER BOWMAN, Plaintiff v. JONATHAN HERBERT, Defendant

 

WESTERN DIVISION

 

Docket # DOCKET NO. 05-SP-01275

Parties: PETER BOWMAN, Plaintiff v. JONATHAN HERBERT, Defendant

Judge: /s/Dina E. Fein

Associate Justice

Date: May 16, 2005

FINDINGS, RULINGS, AND ORDER

The above-captioned summary process (eviction) case came before the court for trial on May 2, 2005, after which the following findings of fact and rulings of law are to enter, as provided for under Mass. R. Civ. P. 52(a):

1. The plaintiff (landlord) owns the property located at 468 South Street, Holyoke (the premises), which he rented to the defendant (tenant) effective December 31, 2004, pursuant to a tenancy at will agreement. The agreed upon rent is $750 per month. On or around February 13, 2005 the landlord sent and the tenant received a notice which sufficed as a rental period notice to quit without fault. Rent totaling $2,250 is unpaid through May, 2005.

2. In defense and counterclaim to the landlord’s case, the tenant

makes two arguments: that there are substandard conditions at the premises; and that this eviction case is in reprisal against the tenant for engaging in protected activity, specifically reporting the substandard

 

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conditions to Code Enforcement.[1] The court will address these claims in turn.

3. Conditions: I find that there were several substandard conditions in existence at the premises at the inception of the tenancy. These conditions included a missing stove and refrigerator, walls and ceilings in disrepair, a defective radiator in one bedroom, a defective light in the bathroom, variable water temperature, and insufficient smoke detectors. The stove and refrigerator were provided within 4 days of the inception. The radiator was repaired, and the bathroom fixture was replaced by January 14, 2005. The tenant contacted the Holyoke Board of Health (Code Enforcement) on February 4, 2005. Code Enforcement conducted an inspection on February 17, 2005, pursuant to which a Notice of Violation issued to the landlord on February 24, 2005, and was received by the landlord on February 26, 2005. On February 27, 2005, the landlord notified the tenant that he wanted access to the premises to make repairs. Access was initially provided by the tenant, but subsequently denied, in or around mid-March, 2005. The landlord initiated a civil case in this court on April 6, 2005, seeking access to make repairs. That case resulted in an order for access.

4. The substandard conditions at the premises give rise to a defense and counterclaim for breach of the implied warranty of habitability, for which the landlord is strictly liable. The tenant’s damages for the landlord’s breach of the warranty of habitability are the difference between the fair rental value as warranted (up to Code), and in their actual

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[1]The tenant also testified at trial as to alleged cross-metering at the premises. This claim was not raised on the Answer, however, and the tenant indicated at trial that he intended to pursue that claim in “small claims.” The court, therefore, will not address the alleged cross-metering herein.

 

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condition. The agreed upon rent is presumed to reflect the fair rental value as warranted, and there is no basis for the landlord’s assertion herein that the premises were actually worth between $895 and $950 per month. Rather, I adopt the tenant’s assertion, and find that the fair rental value of the premises was reduced by 20% (to $500 per month), on average, as a result of the substandard conditions. The tenant is entitled to a rent abatement for the period from December 31, 2004 until mid-March, 2005, at which time most repairs had

been completed, and the tenant denied access for the remaining repairs. The tenant’s damages for the landlord’s breach of the warranty of habitability are therefore $150 x 2.5 months = $375.

5. Retaliation: There is no credible evidence before the court that the landlord was aware of the tenant’s protected activity (contacting Code Enforcement) at the time he served the notice to quit. The tenant is therefore not entitled to the benefit of any legal presumption under G.L. c. 239, s.2A or G.L. c. 186, s.18. Even were the presumption available to the tenant, the landlord has demonstrated by clear and convincing evidence that he had an independent basis for terminating the tenancy, and would have done so when he did, in the manner he did, notwithstanding any protected activity. That independent basis arises out of disturbances emanating from the tenant’s apartment, about which the police were contacted before the tenant contacted Code Enforcement, and before service of the notice to quit. The landlord is therefore entitled to a ruling in his favor on the tenant’s claim of reprisal.

6. Ruling and Order: Based upon the foregoing, and as provided for under G.L. c. 239, s.8A, the tenant shall have 10 days from the entry date of this order, below, to deposit

 

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with the Clerk’s office the sum of $2250 (landlord’s rent claim) – $375 (tenant’s damages) = $1875. If the tenant makes the required deposit, it shall forthwith upon request be released to the landlord, and judgment for possession shall enter for the defendant tenant. If the tenant fails to make the required deposit, judgment for possession and $1875 shall enter in favor of the landlord at the expiration of the ten day period.

 

 

So entered this 16th day of May, 2005.

 

 

 

 

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End Of Decision

 

HOUSING COURT

UMA, INC. D/B/A SUPER 8 MOTEL, Plaintiff v. GREENFIELD HOTEL INC., ET AL, Defendants

 

 

WESTERN DIVISION

 

Docket # DOCKET NO. 04-CV-0098

Parties: UMA, INC. D/B/A SUPER 8 MOTEL, Plaintiff v. GREENFIELD HOTEL INC., ET AL, Defendants

Judge: /s/Dina E.

Fein Associate Justice

Date: December 16, 2004

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

After trial and upon consideration of the evidence, oral arguments, and written submissions, the following findings of fact and rulings of law are to enter, as provided for under Mass. R. Civ. P. 52(a):

 

FINDINGS OF FACT

1. Procedural Background: In July, 2003 the defendant Greenfield Hotel, Inc. (the defendant, GHI), applied for a special permit under the Town of Greenfield (Greenfield) zoning bylaws (the bylaws)[1], to construct a Hampton Inn and Suites on property it owns at 184 Shelburne Road, in Greenfield (the site). The plaintiff UMA, Inc. d/b/a/ Super 8 Motel (the plaintiff, UMA), operates a Super 8 motel on property abutting the site. After proper notice to all parties, the Planning Board convened a public hearing to consider GHI’s application. By

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[1]Although Greenfield recently converted to a city form of government, the record herein refers to its former status as a town, and the zoning regulations accordingly as bylaws. The court will therefore use these terms throughout this decision.

 

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decision filed with the Greenfield Town Clerk on January 9, 2004, GHI’s application for a special permit was allowed. UMA’s appeal to this court timely followed.

2. The Bylaws: As authorized under G.L. c. 40A, Greenfield has adopted zoning bylaws. Under the bylaws, proposed projects involving at least 500 vehicle trips per day and/or nonresidential uses outside the Planned Industry District of 20,000 or more square feet, are subject to major development review. The purpose of major development review is “…to provide for detailed review and approval of certain uses which have the potential for significant impact to the environment, abutting properties, Town services, traffic patterns, the economy of the Town, the character of the Town, or the public health, safety, and welfare of Town residents.” Applicants for permits subject to major development review must submit impact statements, “to provide the [Planning Board] with sufficient information to conduct a detailed review of uses which have the potential for significant impact on the Town.”

3. The Planning Board may issue a special permit for a major development “only after finding that the proposed project will not adversely impact adjacent properties, the neighborhood, the Town, or the environment,” following consideration of the special permit criteria in the bylaws, the site plan approval guidelines in the bylaws, and the standards set forth in the Major Development Review Rules and Regulations for Impact Statements (the MDR). This case boils down to a dispute between the parties as to whether GHI satisfied the MDR standards for the traffic and fiscal impact of the proposed project.

4. The special permit criteria in the bylaws provide generally for consideration of traffic impact, as follows: “Provisions shall be made for convenient and safe vehicular and

pedestrian circulation within the site and in relation to adjacent streets and property. The service level of adjacent streets shall not be significantly reduced due to added traffic volume or type of traffic in

 

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accordance with the most recent edition of the Highway Capacity Manual.” The MDR provisions regarding traffic impact are more specific and, given their centrality to this dispute, are set forth in their entirety as follows:

 

s. 842-3(B) Impact assessment. The Impact Statement shall assess the following areas of potential impact.

1. Traffic impact.

(a) Existing traffic conditions: Average daily and peak hour volumes, sight distances, street capacity, level of service, physical characteristics of the streets, number and location of driveways and intersections, average and peak speeds, accident data, pedestrian movement, and public transportation and traffic controls for streets and intersections adjacent to the project and for streets and intersections which will experience a ten percent (10%) increase in peak hour traffic as a result of the project or which will experience a reduction in the level of service as a result of the project, and for failing streets and intersections which will experience an increase in traffic as a result of the project as required by the Board.

(b) Projected traffic conditions: Average daily and peak hour traffic projections and directional distribution of site generated traffic, site distances at proposed driveway intersections with streets, on-site traffic circulation and parking layout, pedestrian movement and background traffic conditions for the design year including any planned roadway/traffic improvements and other proposed projects in the vicinity of the site.

(c) Projected traffic impact: Evaluate how the proposed project will affect traffic conditions on streets and intersections adjacent to and those likely to be affected by the proposed project including level of service, traffic flow, turning movements, sight distances, traffic controls, pedestrian movement, and public transportation.

5. In reviewing an applicant’s impact statement with respect to traffic, the Planning Board is instructed by the MDR to consider in pertinent part the following standards:

 

(1) The Level of Service (LOS) of all streets and intersections evaluated under s.842-3B(1) shall not be reduced…

(2) The design goal for all streets, intersections, and turning movements at unsignalized intersections shall be

LOS C or better. For streets and intersections currently functioning at LOS C or better, mitigation measures shall be provided to maintain or improve the existing LOS. Where the existing LOS is D, mitigation measures shall at a minimum, maintain the existing conditions or upgrade the LOS to C or better.

(3) For all streets and intersections which are currently failing (LOS E or worse), the goal of mitigation measures it to provide a LOS D or better. At a minimum, existing conditions at failing streets and intersections shall not be further degraded as a result of the project.

 

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(4) Driveways shall be located to limit conflict points with existing driveways and intersections and shall meet intersection design standards for secondary roads required in the Greenfield Subdivision Regulations.

 

6. The MDR also requires that the applicant address the fiscal impact of the proposed project in several respects, the following of which are relevant to this case:

 

s.842-3(B)(5) Fiscal impact.

(a) Evaluate the projected costs and benefits to the community resulting from the project including:..

[3] Projected tax revenues to be generated by the project.

[4] Projected impact of the project on surrounding land values and any potential loss or increase in tax revenues to the Town.

[5] Short-term and long-term projection of increased Town revenues and costs resulting from the proposed project.

(b) Evaluate the market and financial feasibility of the project. Include any market studies for the project and any plans for phased construction.

7. In reviewing an applicant’s statement with respect to fiscal impact, the Planning Board is instructed by the MDR to consider the following standards:

 

s.842-4(E) Fiscal impact standards.

1. The proposed project shall not have a significant adverse impact on the Town in terms of balancing as near as possible the cost of public services and public revenue provided through taxes and other income. The reviewing authority may require phasing of the project to minimize negative fiscal impacts to the Town over the short term.

2. The project shall be designed to minimize negative impacts to adjoining property values.

3. The applicant shall demonstrate the financial ability to complete the project and to achieve

long-term financial stability.

 

8. The Project: Denish Patel, a principal in GHI, has owned and operated hotels and motels throughout the Northeast since the year 2000, and has been involved in the construction of hotels and motels since 2002. Mr. Patel currently owns and/or operates 11 such hotels and motels, one or more of which he co-owns with his brother-in-law, a principal in the plaintiff UMA, Inc. Sometime prior to July, 2003, GHI purchased the subject property, which is located

 

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just off Route 91, at the Greenfield rotary (Exit 24), with access from Colrain Road approximately 250 feet north of the signalized intersection with Route 2. The Super 8 Motel operated by the plaintiff is located adjacent to the site.

9. The area in question is significantly developed with commercial activity. Across Colrain Road from the site is a shopping center which currently houses various commercial enterprises including a movie theater, a Staples, and a Big Y grocery store. To the north of the site on Colrain Road are a BJ’s Wholesale Warehouse, Greenfield Community College, and Charlene Manor Extended Care Facility. Directly across Route 2 from the site is another shopping area, with retail and fast food outlets. To the west of the site on Route 2 is a Home Depot. To the southeast of the site is a rotary which absorbs traffic from Route 91 north and south, and from Route 2, east and west. To the east of the site and the rotary are Main Street, and downtown Greenfield.

10. Currently there is a vacant building on the site, which is located in the General Commercial Zoning District, where a hotel is permitted as a matter of right under the bylaws. When GHI purchased the property, the building housed an operating Brickers Restaurant. The restaurant no longer operates in that building, and has relocated to another property just across Route 2. GHI seeks to demolish the existing structure, and construct a Hampton Inn and Suites in that location. The proposed hotel would employ 14 individuals, and would consist of 68 guest rooms, including suites and studios, 5 meeting and function rooms, and a fitness area including an indoor pool.

11. There are three hotel/motels comprising 220 guest rooms in Greenfield: the Super 8, which is considered an economy property; a mid-scale Howard Johnsons; and the Candle Light,

 

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which is a distressed property.[2] Before purchasing the subject property, Mr. Patel examined the existing lodging options in the Greenfield area, and assessed the market for a mid to up-scale property such as a Hampton Inn and Suites. The Hampton Inn and Suites offer a different product than those motels and hotels which currently exist in Greenfield. They are a division of the Hilton Family of Hotels, and offer a “100% satisfaction” guarantee to guests. Eighty nine percent of the Hampton Inn and Suites guests

are repeat customers. Sixty five percent of the guests represent business travel, and thirty five percent represent leisure travel. As a Hilton franchise, a Hampton Inn and Suites has access to the national Hilton reservation system, and is supported by the Hilton management system.

12. As Ann Hamilton, President of the Franklin County Chamber of Commerce, testified, there is a need, in Greenfield and throughout Franklin County, for the higher level of hospitality service which the proposed Hampton Inn and Suites would offer. Greenfield is the geographical and commercial center of Franklin County. The potential market for a Hampton Inn and Suites in the Greenfield area includes visitors to several local colleges and preparatory schools, individuals engaged in business in the Greenfield area, and tourists drawn to the area by such local attractions as Yankee Candle, which hosts 2 million visitors per year, and its proximity to the Mohawk Trail and other natural recreation opportunities.

13. The Hampton Inn and Suites in the Northeast region experience average occupancy rates of 73%, and average daily (room) rates of $121. For purposes of analyzing and projecting the feasibility of its proposed project, GHI used more conservative figures than these average rates, assuming for the first year of operation 64% average occupancy and average daily rates of $98.

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[2]These figures do not include Bed and Breakfast accommodations.

 

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GHI has procured financing for the project in the amount of $3.9 million from Country Bank and Savings. Based on an assessment by David J. McCaughin, a certified public accountant relying on generally accepted accounting principles, GHI is projecting adequate cash flow to meet it operating needs and debt service ratio. As Mr. McCaughin testified, the project is “very economically feasible.”

14. Fiscal Impact: The property is currently assessed for tax purposes at $925,900, and generates property taxes in the amount of $19,638.34 per year. With improvements associated with the proposed hotel, the estimated assessed value of the property is projected to be $4,454,300, generating estimated property taxes of $94,475.70 per year, an increase of $74,837.36 per year in property tax revenue to Greenfield. [3] The proposed project will also generate occupancy “room” tax revenue, Greenfield’s share of which is estimated to be $40,000 per year. In total, the project is projected to generate additional tax revenue to Greenfield in the amount of $114,837.36 per year.

15. The public water and sewer service currently provided to the site is adequate to support the proposed project. The plans for the project provide good access for fire apparatus, and the proposed use as a hotel will not involve increased demand for fire and police service beyond that associated with the former use of the site as a restaurant.

 

16. Traffic Impact: As quantified by the Institute of Transportation Engineers (ITE), Trip Generation Manual, the source generally relied upon in the industry and referenced in the MDR,

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[3] The site consists of two parcels. The project is planned for one of the parcels, Map 45, Lot 22, and the increased value associated with the project is attributed only to that parcel, with the value of the second parcel (Map 44 Lot 1) projected to remain constant. Should improvements be made to that parcel, the value and commensurate property tax projections would likely increase further.

 

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a restaurant comparable in size to the Brickers which previously operated at the site generates the following traffic: an average of 715 vehicle trips per weekday; 703 vehicle trips per Saturday; and 538 vehicle trips per Sunday. By contrast, a 73 room hotel such as that proposed by GHI, when fully occupied, generates 647 vehicle trips per weekday; 621 vehicle trips per Saturday; and 411 vehicle trips per Sunday.[4] The traffic generated by the proposed project is expected at all times, therefore, to be less than that generated by the former use of the site.[5]

17. In addition, studies by SVE Associates, an engineering firm retained by GHI to assist in the development of its MDR impact statement, quantified the effect of the proposed project on the signalized intersection of Colrain Road and Route 2, and the unsignalized intersection between Colrain Road and the driveway entrance to the site. The studies evaluated the “level of service” at those intersections, with an without the proposed project. “Level of service” is a term commonly used in the industry to describe various factors related to traffic, including congestion, flow, and safety. Based on these factors, a location is assigned a “level of service” letter grade ranging from “A” to “F.” The standard in the industry is to design an intersection to an average level of service, a “C” or “D.”

18. SVE undertook three traffic studies with respect to the site, the first two of which were submitted to the Planning Board. The first study used traffic counts which were several years old; the second study was undertaken in October, 2003, in response to a request from the

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[4]These data are based on a hotel with 73 guest rooms. Although the hotel proposed herein would have 73 rooms, only 68 would be guest rooms, and the others would be meeting or function rooms. In addition, these data assume full occupancy, which is not projected initially for the proposed hotel.

[5]The recently constructed Home Depot complex, by way of comparison, is projected to generate between 399 and 675 vehicle trips per peak hour, at times more than the proposed hotel project is likely to generate in a day.

 

 

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Planning Board for additional study of the Route 2/Colrain Road intersection, and used then current traffic counts; and the third study added the traffic counts associated with the Home Depot which was recently developed on Route 2, just west of the proposed project. In keeping with accepted standards in the industry, the studies projected traffic for the “design hour” (the 30th busiest hour) in the “design year” (2008), based on signal optimization, i.e. assuming the signal at the intersection were programed to operate optimally for the traffic flow. While there was variation among the studies due to the increased traffic counts associated with each successive study, they nevertheless made clear that the level of service at the Colrain Road/Route 2 intersection will not be affected by the proposed project; the studies established that the level of service at that intersection will be the same whether or not the proposed project goes forward. The studies also established that the driveway entrance to the site, with the project completed, will provide above average levels of service A and B in the year 2008.

19. SVE Associates also assessed the impact of the proposed project on the intersection of Colrain and Shelburne Roads, and the Exit 24 rotary. None of the streets or intersections adjacent to the Project site are currently failing, which is defined as a level of service of “E” or worse. The level of service at the Colrain/Shelburne intersection is so high that it will not be impacted by the proposed project and, as indicated by Peter Boemig on behalf of SVE, “would never approach a level of service of concern.” Similarly, the potential impact of the proposed traffic on the Exit 24 rotary is de minimus – 1 or 2% at most. SVE observed that the intersection of Route 2 and Colrain Road does not have “any apparent major geometric deficiencies,” and concluded that the area is not a “high accident location.” Based on its assessment of these various criteria, SVE concluded, as summed up by Mr. Boemig, that “the project just has too low a trip count to be a factor,” and does not pose traffic safety concerns.

 

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20. Finally, over the course of developing its application before the Planning Board, GHI redesigned access to the project from Colrain Road, increasing the distance from the intersection of Colrain Road and Route 2 to the driveway, and providing additional queue length for traffic on Colrain Road. The redesign, including driveways, parking areas, lighting, pedestrian walkways, and appropriate ramps, maximizes the convenience and safety of pedestrian and vehicular movement within the site and in relation to adjacent ways.

 

RULINGS OF LAW

 

21. Standing: As a threshold matter, the court must determine whether UMA has standing to bring this appeal.

 

 

Only a “person aggrieved” may challenge a decision of a zoning board of appeals. A plaintiff is a “person aggrieved” if he suffers some infringement of his legal rights. The injury must be more than speculative, but the term “person aggrieved” should not be read narrowly. Abutters entitled to notice of zoning board of appeals hearings enjoy a rebuttable presumption they are “persons aggrieved.” If standing is challenged, the jurisdictional question is decided on “all the evidence with no benefit to the plaintiffs from the presumption.” A review of standing based on “all the evidence” does not require that the fact finder ultimately find a plaintiffs allegations meritorious. To do so would be to deny standing, after the fact, to any unsuccessful plaintiff. Rather, the plaintiff must put forth credible evidence to substantiate his allegations. In this context, standing becomes, then, essentially a question of fact for the trial judge.

Marashlian v. Zoning Board of Appeals of Newburyport, 412 Mass. 719, 721 (1996)(citations omitted).

 

22. The plaintiff’s standing having been challenged, it is incumbent on UMA to “put forth credible evidence to substantiate claims of injury to [its] legal rights. Id., 412 Mass. at 723. No principal of the plaintiff UMA testified at trial. Rather, the plaintiff’s claim of injury was supported by expert testimony on the issues of traffic and fiscal impact.

23. Shaun P. Kelly, a traffic engineer associated with Vanesse & Associates, Inc. (VAI), reviewed the traffic studies undertaken for GHI by SVE, and summarized UMA’s claim of injury

 

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related to traffic as follows: “VAT has concern that the [SVE] study was not conducted in accordance with industry standards, and is deficient in a number of areas…” (Exhibit 13A); and “VAI maintains that a number of technical issues remain unresolved regarding the potential traffic impacts of the project…” (Exhibit 13B). Mr. Kelly testified that he would have studied the Colrain Road/Shelburne Road intersection, and the Exit 24 rotary. There is no indication in the record, however, that Mr. Kelly or anyone else on behalf of UMA did study those locations for traffic impact from the proposed project. Nor is there any indication that those locations are likely to experience any impact beyond the de minimus impact projected by Mr. Boemig.

24. In addition, there is no indication anywhere in the record that traffic associated with the proposed project will have any impact on the plaintiffs location. While Mr. Kelly expressed numerous concerns about the SVE studies, and argued impressively for more extensive studies and analysis, at no time did he indicate that UMA stands in any specific way to suffer injury as a result of the traffic projected to result from the proposed project. Perhaps the absence of any such testimony results from the basic fact that

the traffic associated with the proposed project is projected to be less than that with which UMA coexisted when Brickers operated at the site. The court need not speculate on this issue, however. While UMA, very ably assisted by counsel, made an eloquent argument for more thorough traffic studies, nowhere in the record is there any indication that the proposed project will have any measurable traffic impact, including any traffic impact on the Super 8 next door. In arguing against the efficacy of GHI’s traffic studies, UMA is in the same position as any other concerned member of the public, which is not sufficient to afford standing.

25. Nor does UMA acquire standing based on its arguments with respect to the projected fiscal impact of the project. UMA made two basic arguments concerning fiscal impact. The first

 

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argument was that GHI has not accurately projected the fiscal impact of the project on Greenfield, by failing adequately to analyze the burden of the project on town services, and by failing to deduct from the equation the loss of meals tax revenue from Brickers. Neither of these arguments alleges an injury to UMA directly, the factual prerequisite to standing.

26. The second argument was that the proposed project will have negative impact on UMA’s property value, contrary to the MDR provision requiring that projects “be designed to minimize negative impacts to adjoining property values.” UMA’s argument that its property value will decrease was advanced by Rachel Roginsky, of Pinnacle Advisory Group. Ms. Roginsky, an experienced consultant to the hospitality industry, assessed the hotel/motel market in the greater Greenfield area, and concluded, contrary to the opinion of Ann Hamilton that the proposed hotel will serve new business, that another hotel will compete for existing business. The net effect of this dynamic, according to Ms. Roginsky, will be that UMA’s Super 8 will experience a loss of business, causing the value of its real estate to decrease. This argument is not supported by the record, and inadequate to afford standing as a matter of law.

27. Specifically, UMA offered no support for its assertion that decreased revenue to the Super 8 would necessarily result in any diminished value to its real estate. Nor is such an assertion otherwise self-evident. Equally plausible is that the value of UMA’s real estate would be enhanced by its proximity to a new upscale hotel such as the proposed Hampton Inn and Suites. Stripped of a nexus to the value of its real estate, the plaintiff is left with the argument that its motel business will suffer if the proposed project goes forward. This is insufficient to afford standing, as “[i]t was no part of the purpose of the zoning regulations to protect business from competition.” Circle Lounge & Grille v. Board of Appeal of Boston, 324 Mass. 427, 430 (1949); the prevention of injury from business competition is not within the purposes of the

 

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Zoning Act. [6]

 

28. For these reasons, the court finds that UMA has not offered credible evidence of injury to its legal rights, and therefore rules that UMA lacks standing to bring this appeal under Chapter 40A.

29. The Special Permit: Notwithstanding the above ruling on standing, in the interest of judicial economy and in light of the fully developed record, the court will take this opportunity to rule on the merits of the appeal. The decision of the Planning Board, granting a special permit to GHI, was proper.

30. The burden of proof is on the applicant for a special permit, here the defendant GHI. Dion v. Board of Appeals of Waltham, 344 Mass. 547 (1962). The trial judge’s function is to determine whether the reasons given by the Planning Board “had a substantial basis in fact or were, on the contrary, mere pretext for arbitrary action or veils for reasons not related to the purposes of the zoning law.” DiGiovanni v. Board of Appeals of Rockport, 19 Mass. App. Ct. 339, 349 (1985). The decision of the local board cannot be disturbed unless, upon facts found de novo, the court concludes that the decision to grant a special permit was “based on a legally untenable ground, or [was] unreasonable, whimsical, capricious or arbitrary.” Roberts v. Southwestern Bell Mobile Systems, Inc., 429 Mass. 478, 486 (1999). See also Davis v. Zoning Board of Chatham, 52 Mass. App. Ct. 349 (2001); Garvey v. Board of Appeals of Amherst, 9 Mass. App. Ct. 856 (1980).

31. In this case, a preponderance of the evidence established that the proposed hotel satisfies the standards of the bylaws, and “will not adversely impact adjacent properties, the

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[6]There was also credible evidence offered to the court that the development of a Hampton Inn and Suites may in fact enhance the adjacent Super 8’s business.

 

 

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neighborhood, the Town, or the environment.” As to the two specific criteria in dispute, namely the traffic and fiscal impact of the project, there is ample evidence to support the Planning Board’s decision, and no basis for concluding that it was arbitrary or otherwise improper.

32. UMA argues that the traffic studies undertaken by GHI were inadequate under the MDR. The court disagrees. The MDR requires the applicant to “assess” various traffic conditions. UMA would have the court conclude that the only proper “assessment” would be one which measured and quantified every aspect of traffic referenced in the MDR. Such a conclusion is not dictated by the dictionary definition of the term “assess,” which means “to evaluate; appraise.” The American Heritage Dictionary of the English Language (3d ed. 1973). Nor is it the role of the court to second-guess a reasonable interpretation by the Planning Board of its own bylaws. “The interpretation an administrative body gives to its own rule is entitled to deference by a court.” Zoning Board of Appeals of Greenfield v. Housing Appeals Committee, 15 Mass. App. Ct. 553, 560

(1983).

33. The only evidence which was before the court supports the Planning Board’s conclusion that the project will not have an adverse impact on traffic. There is extensive and increasing development in the area around the site, the net effect of which is an overall increase in traffic. The Planning Board was perfectly justified in concluding, however, that the incremental addition of traffic associated with this project will not degrade the level of service on adjacent roadways or at adjacent intersections. This is particularly commonsensical given that the traffic projected for this project is statistically likely to be less than that associated with the former use of the site.

34. Similarly, the Planning Board’s conclusion that the project is economically feasible is well supported by the record before the court. Ann Hamilton made a persuasive case that the Greenfield area needs an upscale hotel such as that proposed by GHI. The project has been fully

 

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vetted by the Hilton Family of Hotels which, as testified by Karen Whitman, Director of Development for the Northeast Region, has every reason to evaluate the feasibility of a prospective franchise carefully, and does not “approve every project that comes [its] way.” There is nothing in the greater Greenfield hospitality market similar to the Hampton Inn and Suites which the defendant proposes to develop. The proposed project will have the benefit of a nationwide Hilton reservation system, which provides an established customer base, and the Hilton management system, which provides a consistent product. The site offers the three most important factors in insuring success: accessibility, visibility, and proximity to demand sources. The defendant’s projections of occupancy and average daily rates are based on sound analysis of the market, and realistic goals.

35. The Greenfield Tap and Die Redevelopment Master Plan (the GDT), relied upon by UMA, does not compel a contrary conclusion. That plan concluded that the “highest and best” use of the former GTD site was not for a hotel or motel, based on market considerations, as well as the location of the site which, being away from Route 91, was “considered a liability towards attracting business and transient travelers.” GHI’s site, on the other hand, is located just off Route 91, and its projected financial feasibility depends heavily on that location. This is not to say that the defendant’s project will necessarily, automatically, inevitably succeed; it may not. But guaranteed success is not the equivalent of feasibility. Feasibility implies that the project, considering the initial investment, carrying costs, and income potential, is more likely to succeed than fail. By this standard, the defendant’s proposed project is economically feasible.

36. Greenfield, like many municipalities across the Commonwealth, is grappling with the host of issues which attend development. These issues inevitably require municipalities to balance competing interests, including those of existing community members versus those whom

 

 

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they hope to attract. The way in which a given municipality strikes this balance expresses the collective values of that community. And, inherent in the need to strike a balance is the risk that some members of the community will disagree. It is the responsibility of the municipality, however, to keep the “big picture” in mind, and the court concludes that the Planning Board has done so in this case rationally, and fairly.

37. Order for Entry of Judgment: For the foregoing reasons, the court rules that the decision of the Planning Board granting a special permit to the defendant Greenfield Hotel Inc. was proper. Judgment shall enter in favor of the defendants, affirming the decision of the Planning Board.

 

 

So entered this 16th day of December, 2004.

 

 

 

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End Of Decision

 

HOUSING COURT

JUAN VARGAS and YAHAIRA HADDOCK On behalf of themselves and others similarly situated, Plaintiffs, v. U.S. BANK NATIONAL ASSOCIATION, U.S. BANK NATIONAL ASSOCIATION TRUST U/A 12/01/98 (EQCC HOME EQUITY LOAN TRUST 1998-4, FAIRBANKS CAPITAL CORP., PRESTIGE PROPERTIES and WAYNE ARUTE Defendants.

 

HAMPDEN DIVISION

 

Docket # 04-cv-0099

 

Parties: JUAN VARGAS and YAHAIRA HADDOCK On behalf of themselves and others similarly situated, Plaintiffs, v. U.S. BANK NATIONAL ASSOCIATION, U.S. BANK NATIONAL ASSOCIATION TRUST U/A 12/01/98 (EQCC HOME EQUITY LOAN TRUST 1998-4, FAIRBANKS CAPITAL CORP., PRESTIGE PROPERTIES and WAYNE ARUTE Defendants.

Judge: /s/Dina E. Fein

Associate Justice of the Housing Court, Western Division

Date: December 20, 2006

PLAINTIFF’S UNOPPOSED MOTION FOR ATTORNEY’S FEES

 

Plaintiffs Juan Vargas and Yahaira Haddock on their own behalf and on behalf of others similarly situated (“Plaintiffs”), hereby move this Court for an award of attorney’s fees based upon the amount of fees separately negotiated and that in no way decrease the amount to class members inclusive of costs as set forth in the Amended Settlement Agreement preliminarily approved by the Court in its Order dated October 13, 2006. In support of this motion, the plaintiffs state as follows:

1. On or about May 17, 2004, Plaintiffs initiated Vargas v. U S. Bank National Association, et al., Civil Action No. 04-cv-0099, in the Housing Court Department of the Trial Court, Western Division in the Commonwealth of Massachusetts (“Action”) by

filing a First Supplemental Class Action Complaint (“Complaint”) in the Court, in which the Plaintiffs asserted that in sending a notice with alleged illegal

 

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provisions the defendants violated Massachusetts Laws Chapter 93a, the state consumer protection statute.

 

2. Through counsel, Plaintiffs engaged in extensive arm’s-length negotiations with the defendants over many months concerning the terms and conditions of the Settlement provided for herein.

 

3. Although they deny any allegations wrongdoing, liability or damages and without conceding any infirmity in the defenses asserted or which could have been asserted, the defendants have agreed to pay a sum of $75 per unidentified class member and $750 per identified class member.

 

4. Plaintiffs and their counsel have concluded that it is in the best interests of the Class to settle the Action on the terms set forth herein. In evaluating the Settlement, the Plaintiffs have considered the substantial financial benefits provided for the Class; the expense and length of time necessary to prosecute the Action through trial and any possible appeals; the defenses asserted by and available to the defendants; the uncertainties of the Action; and the fact that resolution, whenever and however determined, of Plaintiffs’ claims, could be submitted for appellate review, as a consequence of which it may be many years until there would be a final adjudication of the claims and defenses asserted.

 

5. According to the Supreme Judicial Court, when awarding fees pursuant to M.G.L. c. 93a a trial Court should consider the nature of the case, issues involved, the attorney’s time and labor, the size of the case, the result including damages awarded, the experience, reputation and ability of the attorneys and fees charges by other attorneys for comparable cases. Linthicum v. Archambault, 379 Mass. 381 (1979). The amount received in damages by class members under c. 93a is not the fundamental factor in determining an award of attorney’s fees,

 

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particularly when the fee award in no way detracts from the amount paid to each member of the class. See e.g. Homsi v. C. H. Babb Co., 10 Mass. App. Ct. 474 (1980). See also McGrath v. Mishara, 386 Mass. 74 (1982). Moreover, the size of a damage award should not limit the size of a fee award because to do so would frustrate the legislative intent of providing consumers with a private right of action under the statute. See e.g. Linkage Corp. v. Trustees of Boston Univ. 425 Mass. 1 (1997).

 

 

6. Here, in Section 2.16 of the Amended Settlement Agreement filed with the Court on October 4, 2006, and incorporating changes made after hearing before the Court and approved by the Court in its Order dated October 13, 2006, the parties agreed that class counsel may seek an award of attorneys’ fees no greater that $25,000, inclusive of costs.

 

7. The amount of the award is appropriate as this is a relatively complicated matter that requires knowledge of both consumer protection and landlord tenant law. Class counsel has significant expertise and a favorable reputation in both areas of practice. The difficulty in finding unnamed class members who moved from the address of record made the case more complicated and required significantly more attorney time on the part of class counsel. Class counsel did their own independent search of various utility company records to attempt to locate more class members and conducted an independent first class mail tracing search. Class counsel secured injunctive relief for the class and letters with the alleged illegal provisions such as the one at issue in this matter are no longer being used by the defendants. Compensation for each identified tenant household in the amount of $750 and $75 for each unidentified tenant household is an excellent result in this matter for class members.

 

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WHEREFORE, plaintiffs pray that after hearing held on December 29, 2006, their Motion is granted and that the Court approve the award of attorney’s fees inclusive of costs in the amount of $25,000.

 

 

Respectfully submitted,

 

 

Plaintiffs,

By their attorney,

 

Suzai Garrow, BB #636548

Heisler, Feldman, McCormick & Garrow, PC

1145 Main Street, Suite 508

Springfield, MA 01103

(413) 788-7988

 

So ordered

 

 

 

 

NOTICE OF MOTION

 

I hereby give notice to the parties and counsel of record that this motion will be heard before the Housing Court, Western

Division at 37 Elm Street, Springfield on Friday ember 29, 2006 at 2 p.m. or as soon thereafter as counsel can be heard.

 

/s/Suzanne Grow

 

CERTIFICATE OF SERVICE

 

I certify that I sent the foregoing to Joseph Yenouskas, Esq. at Goodwin Procter, LLP, 901 New York Avenue, NW, Washington, DC 20001 on this date.

 

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End Of Decision

 

HOUSING COURT

VALLEY MANAGEMENT, INC v. TINA BIGOS and JOHN TARANTINO

 

WESTERN DIVISION

 

Docket # NO. 04-CV-0138

Parties: VALLEY MANAGEMENT, INC v. TINA BIGOS and JOHN TARANTINO

Judge: /s/Dina E. Fein

Associate Justice

Date: July 9, 2004

FINDINGS, RULINGS, AND ORDER ON PLAINTIFF’S COMPLAINT FOR CONTEMPT

 

The above-captioned case came before the court on July 9, 2004, for hearing on the plaintiff’s complaint for contempt. All parties were present. Based upon the evidence admitted at hearing, the court finds and rules as follows:

 

1. The court finds that the defendant Tina Bigos has not violated an order of the court, and is therefore not liable for contempt.

2. The court finds that the defendant John Tarantino has repeatedly violated this court’s orders prohibiting him from entering upon or remaining at the premises known as the Boston Road Mobile Home Park. Mr. Tarantino has appeared personally before the court on several occasions beginning on March 26, 2004, and has been under order to remain away from the Boston Road Mobile Home Park since that date. The court’s orders have been clear and straightforward, and have been explained to Mr. Tarantino personally by the court. Notwithstanding the court’s order, and in knowing and blatant disregard of the court’s order, Mr. Tarantino has been at the Boston Road Mobile Home Park on almost a

 

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daily basis, until today. Mr. Tarantino is not an authorized occupant at the Boston Mobile Home Park, he has caused repeated disturbances there, and his presence has been disturbing and intimidating to lawful residents of the Boston Road Mobile Home Park.

 

3. Ruling and Order: I find that Mr. Tarantino is in contempt of the court’s orders dated March 26 and March 29, 2004. Based

upon Mr. Tarantino’s repeated violation of the court’s orders, as well as his demeanor before the court on several occasions, and my assessment that he did not testify credibly while under oath, and in order to secure onto the plaintiff herein the benefit of the court’s orders, I hereby order as follows:

 

1. Mr. Tarantino shall be incarcerated until such time as he demonstrates an intention to comply with the court’s orders, and purge himself of contempt.

 

2. Mr. Tarantino shall be fined in the amount of the plaintiff’s costs and attorney’s fees associated with bringing this action, $4,307.24.

 

3. This case is scheduled for further hearing on July 21, 2004 at 9:00 a.m. Mr. Tarantino may petition to come before the court prior to that date by submitting a request in writing to the court’s Housing Specialist Department, 37 Elm Street, Springfield, MA 01003.

 

So entered this 9th day of July, 2004.

 

 

 

cc: Kevin R. Byrne Sr.

Chief Housing Specialist

 

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End Of Decision

 

HOUSING COURT

ROBERT MILLER v. NAOMI DESLONGCHAMPS, ET AL

 

 

WESTERN DIVISION

 

Docket # 04-CV-0219

Parties: ROBERT MILLER v. NAOMI DESLONGCHAMPS, ET AL

Judge: /s/Dina E. Fein

Associate Justice

Date: June 3, 2004

FINDINGS AND RULINGS ON PLAINTIFF’S REQUEST FOR PRELIMINARY INJUNCTION

 

After hearing on June 2, 2004, the court finds and rules as follows with respect to the plaintiff’s request for a preliminary injunction. These findings and rulings re-state and supplement those made from the bench at the time of the hearing.

 

1. The plaintiff (landlord) owns the property located at 93a Pleasant Street, Ware (the premises), which he rented to the defendant Naomi Deslongchamps (tenant), pursuant to a written rental agreement, effective August 3, 2003. The rental agreement identifies the tenant and her minor children as the occupants of the premises, and provides, among other things, that no pets are permitted without the landlord’s permission. The landlord’s property manager is named Peter Ulfves. Mr.

Ulfves is frequently at the premises, and has been at all times relevant hereto.

 

2. As of shortly after the inception of the tenancy, the landlord became aware that Reynaldo

 

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Maldonado was also living at the premises. The landlord’s agent, Jackie Miller, authorized Mr. Maldonado to occupy the premises, although she indicated that Mr. Maldonado would have to complete an application. No application was forthcoming from the landlord, however, until very recently. The landlord never complained about Mr. Maldonado’s presence at the premises.

 

3. At the inception of the tenancy, the tenant inquired whether she might have a pet at the premises, and was informed that she could. Another tenant in the building had a pit bull at the property, which was known to the landlord. The dog had a litter, and the tenant acquired one of the puppies from the litter. The landlord has known since October or November, 2003, that the tenant had a dog at the premises. The dog is now 8 months old. Previous to the events which gave rise to this litigation, the landlord had objected to the presence of the dog on only one occasion, and then with respect to dog feces which the tenant did not remove from the common yard.

 

4. At times relevant hereto, the tenant has had a clothes dryer located in a closet at the premises, and connected to an extension cord, stapled to the wall. Also at times relevant hereto, the tenant’s sister, Danielle, and Danielle’s husband, Aaron, and their children, have stayed at the subject 2 bedroom premises.

5. On or around March 24, 2004, the tenant contacted the Quabbin District Health Department concerning conditions at the premises. The Health District did an inspection, and, by notice dated March 24, 2004, cited the landlord for a number of State Sanitary Code violations at the premises.

 

6. The tenant paid rent through March, and has withheld rent for the months of April, May and June.

 

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7. On March 31, 2004, the landlord sent the tenant a letter, “revoking” her dog “privileges.” On or around May 11, 2004, the landlord filed and served the Verified Complaint herein, seeking, among other relief, an order requiring the tenant to remove her dog from the premises, and prohibiting the tenant from having unauthorized occupants, including Mr. Maldonado. After the complaint herein was filed and served, the landlord provided the tenant with an application for Mr. Maldonado, and

determined thereafter that his credit was poor.

 

8. Rulings: The landlord acquiesced to a modification of the rental agreement in two respects: he permitted Mr. Maldonado to reside at the premises; and he permitted the tenant to have a dog at the premises. It was only after the tenant engaged in the protected activities of contacting the Health District and withholding rent, that the landlord sought to revoke the modifications to which he had theretofore assented. As to these issues, the landlord has not demonstrated by clear and convincing evidence that he had an independent justification for taking the action that he did, and would have done so when he did and in the manner that he did, irrespective of the tenant’s protected activity.

 

9. The landlord did not assent to the presence at the premises of the tenant’s sister and brother-in-law, nor did he assent to the alterations at the premises associated with the clothes dryer. Both of these represent violations of the rental agreement, and create a risk of irreparable harm in the form of overcrowding, and unsafe conditions.

 

10. Order: The plaintiff’s request for a preliminary injunction is allowed in part, and denied in part. The tenant is enjoined from having any unauthorized occupants residing at the premises. This does not include Mr. Maldonado. The tenant is also enjoined from operating a clothes dryer at the premises, until and unless a dryer is properly installed

 

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consistent with all applicable safety codes. The plaintiff’s request for a preliminary injunction requiring Mr. Maldonado to vacate is denied. The plaintiff’s request for a preliminary injunction requiring the removal of the dog is denied, conditioned upon the dog being restrained at all times, and always accompanied by an adult when in the common areas, including the yard. This ruling is without prejudice to the plaintiff renewing the request to remove the dog, in the event that he can demonstrate a substantial risk that his liability insurance is subject to imminent cancellation because of the dog.

 

11. The plaintiff’s motion to amend the complaint so as properly to name the tenant’s sister Danielle and brother-in-law Aaron is allowed, conditioned upon those individuals being served as required by law.

 

So entered this 3rd day of June, 2004, nunc pro tunc.

 

 

 

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End Of Decision

 

HOUSING COURT

JESSICA MELROY v. DOUGLAS STEWART

 

WESTERN DIVISION

 

 

Docket # NO. 05-CV-00067

Parties: JESSICA MELROY v. DOUGLAS STEWART

Judge: /s/Dina E. Fein

Associate Justice

Date: February 18, 2005

ORDER

 

After hearing on February 18, 2005 at which both parties were present, the following rulings and orders are to enter:

 

 

1. Defendant (landlord) is ordered to restore the Plaintiffs’ (tenants’) access to their room at the subject premises and to restore their belongings to that room and to provide keys to the new locks for that room.

2. The landlord is ordered to instruct the other occupants of the premises that they are to have no contact with the plaintiffs.

3. Plaintiffs are ordered to have no contact with any of the other occupants of the premises.

4. This case is referred to the City of Springfield, Zoning Office to investigate whether the premises constitute an illegal rooming house in violation of the local zoning ordinance and/or other relevant statutes and codes.

 

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5. This case will be brought for review on Wednesday, February 23, 2005 at 9:00 A.M. at which point all parties are ordered to appear.

 

 

 

cc: City of Springfield

Zoning Office

 

 

 

End Of Decision

 

HOUSING COURT

DIANA D’INDIA v. BRET SILVERBERG

 

WESTERN DIVISION

 

Docket # NO. 05-CV-00185

Parties: DIANA D’INDIA v. BRET SILVERBERG

Judge: /s/Dina E. Fein

Associate Justice

Date: January 24, 2006

RULINGS AND ORDER ON DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT

 

 

The above-captioned matter came before the court for hearing on the defendant’s motion for partial summary judgment. For the reasons set forth herein, the defendant’s motion is allowed.

 

1. Undisputed Facts: On or around July 31, 2003, the parties entered into a written lease for the rental of a single family home locate at 10 Hawley Road, Hadley (“the premises”), effective August 22, 2003 and terminating May 31, 2004. The contract rent for the premises was $1300 per month. The lease required payment of $3,900 at the inception of the tenancy, representing first and last month’s rent, and a security deposit. The parties agreed that the defendant (“former tenant”) would be living at the premises with two roommates, although he was the only signatory to the lease. On

the day the lease was signed, the former tenant paid, and the plaintiff (“former landlord”) received $1,408, which represented $108 towards pro rata rent for August, and his 1/3 share ($1300) towards the first and last month’s rent, and security deposit. The record does not establish when the balance of the security deposit was paid. The plaintiff never provided the

 

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defendant with a receipt confirming that the security deposit had been deposited in a Massachusetts bank. The former landlord did not provide the former tenant with a proper statement of conditions within 10 days of the inception of the tenancy.

 

2. On October 3, 2003, the defendant and his roommates had a party at the premises. The next morning, the defendant observed that a tree on the premises was damaged. The former tenant did not cause the damage himself, and does not know how the tree was damaged, or who damaged it. Later in the morning, a neighbor, who served as the landlord’s “handyman,” came to the premises and cut down the tree with a chain saw.

 

3. The plaintiff did not return the security deposit after the defendant vacated the premises. The former landlord sent the former tenant a letter dated June 29, 2004, in which she itemized various damage to the premises, and expenses associated therewith. The letter, which was not signed under the pains and penalties of perjury, purported to include estimates and bills documenting the expenses. The itemized expenses totaled $14,927.74, and included $13,530 to replace the tree which was damaged during the term of the lease, and cut down by the handyman.

 

4. The complaint in this case was filed on September 7, 2004. The defendant’s answer, which was filed on October 20, 2004, counterclaimed for violation of G.L. c. 186, s. 15B, and sought treble damages thereunder.

 

5. Summary Judgment Standard: Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Mass.R.Civ.P. 56(c). See also, Cassesso v. Commissioner of Correction, 390 Mass. 419, 422, 456 N.E.2d 1123 (1983); Community Nat’l Bank v. Dawes, 369 Mass. 550, 553, 340 N.E.2d 877 (1976). The moving party bears the burden

 

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of establishing the absence of a triable issue, and entitlement to judgment as a matter of law, based on the summary judgment record. Pederson v. Time, Inc., 404 Mass. 14, 16-17, 532 N.E.2d 1211 (1989). A moving party which does not bear the burden of proof at trial is entitled to summary judgment if it submits affirmative

evidence, unmet by countervailing materials, that either negates an essential element of the nonmoving party’s case or demonstrates that the nonmoving party has no reasonable expectation of proving an essential element of its case. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991). “If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact …” Pederson, 404 Mass. at 17, 532 N.E.2d 1211. In ruling on a motion for summary judgment, the court views all facts and inferences reasonably drawn therefrom in the light most favorable to the nonmoving party. Bisson v. Eck, 430 Mass. 406, 407, 720 N.E.2d 784 (1990); Gray v. Giroux, 49 Mass.App.Ct. 436, 437, 730 N.E.2d 338 (2000).

 

6. Discussion – The Tree: The complaint alleges two causes of action arising out of damage to the tree: waste, and violation of G.L. c. 242, s.7. Waste is an “unreasonable or improper use, abuse, mismanagement, or omission of duty touching real estate by one rightfully in possession which results in its substantial injury.” Gade v. National Creamery Co. 324 Mass. 515,_, 87 N.E.2d 180,181 (1949), quoting Delano v. Smith, 206 Mass. 365, 370, 92 N.E. 500, 501. G.L. c. 242, s.7 provides in pertinent part that “[a] person who without license willfully cuts down, carries away, girdles or otherwise destroys trees, timber, wood or underwood on the land of another shall be liable to the owner in tort…”

 

7. The landlord is unable to prevail under either theory, as the record is entirely devoid of any facts which establish that the tenant caused the damage himself, negligently permitted others

 

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to cause the damage, or is otherwise legally responsible for the damage. While the fact of a party the night before might cause suspicion, it is not enough, in and of itself, to connect the defendant, directly or indirectly, to the damage. The single remaining fact which does connect the tenant to the damaged tree, namely that the damage occurred during the lease term, is insufficient as a matter of law to establish the tenant’s liability therefore.

 

8. Nor does the e-mail attached to the landlord’s opposition suffice to create a question of material fact. The e-mail is not offered in an admissible form as required under Mass. R. Civ. P. 56. In addition, it does not tend to prove any fact which would bear on the tenant’s liability for waste. At most, the e-mail might be construed as an offer to settle a looming legal dispute, but the basis of that dispute, the factual context in which it arose, the events which prompted the e-mail, and the landlord’s response to the e-mail, are all entirely unknown and were not addressed in countervailing affidavits, preventing the court from drawing any reasonable inferences which benefit the plaintiff.

 

 

9. As the plaintiff is unable to establish the defendant’s legal liability for the damage to the tree, the court need not reach the additional argument that the tree had no value, precluding recovery for its loss.

 

10. Security Deposit: The former tenant alleges that the former landlord violated the security deposit statute in the following ways: by failing to deposit the security deposit in a bank within thirty days of receipt; by failing to notify the former tenant of the bank and account number in which the funds were deposited; by failing to provide the former tenant with a proper statement of conditions; by failing to refund the security deposit after the tenant vacated; and by making improper and undocumented deductions from the security deposit. The former landlord does not dispute these allegations directly, asserting only that no interest was due on the security deposit,

 

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as the tenancy lasted less than one year.

 

11. G.L. c. 186, s.15B(3)(a) provides as follows:

 

A receipt shall be given to the tenant within thirty days after such deposit is received by the lessor which receipt shall indicate the name and location of the bank in which the security deposit has been deposited and the amount and account number of said deposit. Failure to comply with this paragraph shall entitle the tenant to immediate return of the security deposit.

 

12. The former landlord does not dispute the defendant’s statement that he never received a receipt showing the location of his security deposit funds. By operation of statute, therefore, the tenant was entitled to immediate return of the security deposit. The plaintiff failed to return the security deposit at any time, including upon receipt of the counterclaim herein, raising alleged violations of the security deposit statute.

 

13. In addition, G.L. c. 186, s.15B(4)(iii) provides as follows:

 

The lessor shall, within thirty days after the termination of occupancy under a tenancy-at-will or the end of the tenancy as specified in a valid written lease agreement, return to the tenant the security deposit or any balance thereof; provided, however, that the lessor may deduct from such security deposit for the following…

a reasonable amount necessary to repair any damage caused to the dwelling unit by the tenant or any person under the tenant’s control or on the premises with the tenant’s consent, reasonable wear and tear excluded.

 

 

14. At the termination of the tenancy, the former landlord deducted sums from the security deposit for tree work, and the cost of replacing the damaged tree, among others. There is no evidence before the court that these sums are attributable to damage caused by the tenant or someone under his control. In addition, the statement purporting to document these and other deductions was not signed under the pains and penalties of perjury.

 

15. Having failed to provide the defendant with a receipt showing where the security deposit was located, having made unauthorized deductions from the security deposit, and having failed

 

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properly to document the deductions, the plaintiff forfeited the right the retain the security deposit. The defendant’s counterclaim raising violations of the security deposit statute constitutes a demand for its return. As the plaintiff has not returned the security deposit, including in response to the pending litigation, she is liable under G.L. c. 186, s. 15B(7) for treble damages, costs and attorney’s fees. Castenholz v. Caira, 21 Mass. App. Ct. 758, 764, 490 N.E. 2d 494, 498 (1986).

 

16. Conclusion and Order: Based upon the foregoing, an order awarding partial summary in favor of the defendant shall enter. Counts III and IV of the complaint are dismissed, and the defendant is awarded treble damages ($3,900), costs, and attorney’s fees under G.L. c. 186, s.15B. Counsel for the defendant shall have ten days from the entry date of this order to file her petition for attorney’s fees and costs. Counsel for the plaintiff shall have ten days thereafter in which to file opposition, if any. The court will then rule on the papers.

 

17. The Clerk’s office is requested to schedule the matter for pre-trial conference.

 

 

 

 

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End Of Decision

HOUSING COURT

ELIZABETH PAGAN v. THAO BICH NGUYEN AND THAO B. NGUYEN, v. ELIZABETH PAGAN,

 

WESTERN DIVISION

 

Docket # DOCKET NO. 05-CV-00295 and 06-SP-00762

Parties: ELIZABETH PAGAN v. THAO BICH NGUYEN AND THAO B. NGUYEN, v. ELIZABETH PAGAN,

Judge: /s/Dina E. Fein

Associate Justice

Date: March 22, 2006

 

1. Motion to Amend: The landlord’s motion to amend the complaint, so as to add a ground alleging failure to vacate at the expiration of the lease term, is allowed. No legitimate interest is served by requiring the landlord to incur the expense and delay associated with filing a new complaint alleging this ground. Obviously, it will be incumbent on the landlord to prove the elements of this newly plead claim. The tenant shall have seven days from the entry date of this order to file an amended answer.

 

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2. Tenant’s Motion to Dismiss: The tenant’s motion to dismiss based on an invalid notice to quit for nonpayment of rent, is allowed. The notice did not accurately express the tenant’s cure rights, irrespective of whether the tenancy was at will, or under a lease. If the tenancy was at will, the tenant had cure rights under G.L. c. 186, s.12. If the tenancy was under a lease, the tenant had cure rights under G.L. c. 186, s.11. In either event, she had the statutory right to pay and retain possession. In neither event, therefore, was it accurate to state, as did the notice herein, that any monies paid by the tenant would be accepted

“for use and occupancy only and shall not waive this Notice to Quit or create a new tenancy.” The clear import of the notice was that payment of past due rent would not operate to preclude eviction, and this message is diametrically contrary to the tenant’s right to cure, reinstate her tenancy, and retain possession. The notice was therefore ineffective to terminate the tenancy for nonpayment of rent, and the claims based thereon must be dismissed. See Springfield II Investors v. Marchena, Hampden Division, Housing Court Department, 89-SP-1342 (Abrashkin, J., 1/4/89); Gray v. Irving, Boston Division, Housing Court Department, 96-05445 (Winik, J., 11/7/96); Munoz v. Rooks, Boston Division, Housing Court Department, 03-1282 (Pierce, J., 5/13/03); Sklodowski v. Neal, Southeaster Division, Housing Court Department, 02-4391 (Kyriakakis, J., 10/31/02).

 

3. Landlord’s Motion to Dismiss Complaint for Contempt: The landlord’s motion to dismiss the tenant’s complaint for damages is denied. The tenant’s claim for compensatory damages survives compliance with the court agreement to restore heat. The landlord’s argument that the claim for contempt raises issues which would otherwise not arise in the trial, is not persuasive upon close examination. The agreement to restore heat is potentially relevant, for example, to the tenant’s claim under G.L. c. 186, s.14. The question of whether the landlord authorized the agreement or was informed of its existence, and any issues of attorney client

 

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privilege raised thereby, are involved in the cases with or without the complaint for contempt, and therefore to not persuade the court to sever that claim in the interest of sound case management. It will remain for the tenant to prove the elements of contempt, and compensatory damages thereunder may not be duplicative of those awarded, if any, for other claims.

 

4. Motion to Consolidate: The landlord’s motion to consolidate is allowed.

 

5. Ruling and Order: Based upon the foregoing, the court rules and orders as follows: The summary process complaint is amended so as to add as a ground therefore the expiration of the tenant’s lease. The landlord’s claims for possession and rent arising out of the 14 day notice to quit dated January 30, 2006, are dismissed. The landlord’s motion to dismiss the complaint for contempt, is denied. The consolidated cases shall proceed to trial on the remaining claims on April 5 and 7, 2006.

 

So entered this 22nd day of March, 2006.

 

 

 

cc: Peter Montori, Esq.

Assistant Clerk Magistrate

 

 

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End Of Decision

 

HOUSING COURT

M&TBANK v. LISA GRANT and LISA GRANT v. M & T MORTGAGE CORP.

 

WESTERN DIVISION

 

Docket # DOCKET NO. 05-SP-03932 and DOCKET NO. 05-CV-00314

Parties: M&TBANK v. LISA GRANT and LISA GRANT v. M & T MORTGAGE CORP.

Judge: /s/Dina E. Fein

Associate Justice

Date: March 27, 2006

RULING ON PETITION FOR ATTORNEY’S FEES AND

ORDER FOR ENTRY OF JUDGMENT

 

This matter is before the court on the petition of Lisa Grant for an award of attorney’s fees and costs, and opposition thereto. Upon consideration of the parties’ submissions, and the record as a whole, the court finds, rules, and orders as follows:

 

1. Background: These consolidated cases have a long history, summarized herein as relevant to the pending petition. M & T Mortgage Corporation (“M & T”) purchased the subject two family property at foreclosure sale on November 12, 2004. At all times relevant hereto, Ms.

 

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Grant (“tenant”) and her family occupied one unit of the property, initially as a tenant of the former owner, Dorothy Sanderson. On December 7, 2004, M & T sent a “notice to quit and vacate,” addressed to Ms. Sanderson “and all other occupants.” On January 27, 2005, M & T served a summary process complaint on “Dorothy Sanderson, Lisa Grant, and any and all occupants.” That complaint was entered in this court as docket 05-SP-01067, and Ms. Grant filed an answer and counterclaim thereto. The summary process complaint was ultimately dismissed upon the tenant’s motion, for M & T’s failure to satisfy the procedural prerequisite of serving Ms. Grant with a notice to quit. Her counterclaims were then transferred to civil docket number 05-CV-00314, one of the cases consolidated herein, and pretrial litigation followed, including discovery, discovery disputes, and various motions.

 

2. Upon dismissal of the original summary process complaint against Ms. Grant, and while the civil litigation described above was ongoing, she was served with a notice to quit (on behalf of M & T Mortgage Corporation), after which a second summary process complaint was served and entered, identifying M& T Bank as the owner plaintiff. This summary process case was

assigned docket number 05-SP-03932, the other of the cases consolidated herein. Litigation ensued in the second summary process case, including a motion for summary judgment by the tenant, based in part on the argument that a notice to quit served on behalf of M & T Mortgage Corporation did not suffice to terminate a tenancy with M & T Bank. The court denied the motion, reasoning that a fact question existed as to the relationship between M & T Mortgage Corporation and M & T Bank. In denying the motion for summary judgment, however, the court indicated as follows: “To be perfectly clear, the question of whether the tenancy has been properly terminated remains one for trial, as to which the plaintiff bears the burden of proof. This ruling should not be read as relieving the plaintiff of that burden, nor relaxing the standard

 

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of proof which will be required at trial.” Order on Defendant’s Motions for Summary Judgment, To Strike, and To Consolidate, 05-SP-03932, 12/2/05 (Fein, J.).

 

 

3. Against this procedural background, the consolidated cases came to trial before the undersigned. M & T Bank and M & T Mortgage Corporation appeared at trial through counsel, without witnesses, and no competent evidence was offered to establish the prima facie elements of the summary process case: M & T Bank’s relationship to the property, and service of a proper notice to quit. Upon Ms. Grant’s motion at the close of M & T Bank’s case, the summary process claims were dismissed, and trial proceeded on the tenant’s claims and M & T Mortgage Corporation’s claim for use and occupancy in docket number 05-CV-00314. Findings of fact and rulings of law entered, pursuant to which Ms. Grant was awarded damages in the amount of $6,632, and M & T Mortgage Corporation was awarded $5,200 for use and occupancy. The pending petition for attorney’s fees, and opposition thereto, followed.

 

4. Standard: The determination of reasonable attorney’s fees is within the discretion of the judge. Fontaine v. Ebtec Corp., 415 Mass. 309, 324, 613 N.E.2d 881, 890 (1993). Among the factors to consider are: “the nature of the case and the issues presented, the time and labor required, the amount of damages involved, the result obtained, the experience, reputation and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases.” Id., 613 N.E. 2d at 891, quoting Linthicum v. Archambault, 379 Mass. 381, 388-389, 398 N.E.2d 482, 488 (1979).

 

5. Analysis: Counsel for Ms. Grant, Joel Feldman, has petitioned for an award of fees in the amount of $21,240, representing 94.4 hours at the rate of $225 per hour. M & T focuses on the tenant’s net damages recovery of $1,432, presumably to make the point that the fees requested herein are disproportionate to that award. The dollar amount of the tenant’s recovery, however,

 

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does not take into consideration that she also retained possession of the subject property. In addition, the amount of her recovery is only one of several factors to be considered by the court.

 

6. Certain other of the arguments made in M & T’s opposition are perplexing, such as the suggestion that “Attorney Feldman’s office bills itself at a legal service office.” Factually, and to the contrary, Attorney Feldman’s affidavit makes clear that he is a shareholder in a private law firm. Legally, the question of whether a prevailing party is represented by a private attorney or a legal services program, is irrelevant. Darmetko v. Boston Housing Authority, 378 Mass. 758, 763, 393 N.E.2d 395, 399 (1979).

 

7. Finally, M & T argues that depositions were taken over its objection (presumably adding to the time and expense of the case), and that the fees proposed are inflated and not merited by the nature of the case. Regrettably, however, a review of the record will show that much of the time invested by Ms. Grant’s attorney was in response to procedural missteps by M & T. The

record also reflects that the court made every effort to articulate the legal standards which applied to the underlying dispute, including the applicability of fee shifting statutes, and to offer the court’s mediation services to assist in a resolution short of trial. The plaintiff having exercised its right to go forward with litigation and trial, it may not now complain that counsel for the tenant prepared her case in response.

 

8. Attorney Feldman has been practicing in Massachusetts for 18 years, initially with legal services programs, and for the past eight years in private practice. Attorney Feldman has extensive litigation experience in the areas of housing and consumer law, including multiple class action cases, and appellate experience. The hourly rate requested by Attorney Feldman, $225, is supported by affidavits of experienced counsel, is consistent with the prevailing rate charged by attorneys with comparable experience, and is reasonable.

 

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9. With only the exceptions identified below, the number of hours claimed is also reasonable. Attorney Feldman’s affidavit documents a lean and efficient approach to litigating these cases; on the whole it is clear to the court that Attorney Feldman spent only such time as was necessary to prepare the case adequately, and no more.

 

10. There are, however, two categories of time which the court concludes are not reasonable. The first is for that work performed by Attorney Feldman between December 15, 2004 and January 21, 2005, before service of the first summary process case on January 27, 2005. While obviously related to his representation of Ms. Grant, this time (3.7 hours) was not undertaken in cases as to which she was the prevailing party, and will therefore not be awarded.

 

11. The second category of time is for activities which appear entirely ministerial. It is not reasonable to claim $225 per hour for work which is well within the capability of a (presumably lower-paid) clerical person to perform. For this reason, the court will disallow an award for the following activities:

 

3/15/05 Notice of Appearance 0.1

3/15/05 Transfer notice 0.2

3/15/05 Cover letter with eviction documents 0.1

3/24/05 Request for trial assignment, etc. 0.2

3/30/05 Letter to Karen Huntoon 0.2

7/26/05 Courthouse to receive decision on motions 0.4

10/25/05 Deposition notice and subpeona 0.2

Total 1.4

 

 

12. Based upon the foregoing, the court will disallow 3.7 + 1.4 = 5.1 hours, and award attorney’s fees in the amount of

$20,092.50, representing 89.3 hours at the rate of $225 per hour. The court also awards costs for depositions and subpoenas, in the amount of $914.81.

 

13. Order for Entry of Judgment:

 

A. In docket number 05-SP-03932, judgment for possession shall enter in

 

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favor of Lisa Grant.

 

B. In docket number 05-CV-00314, judgment shall enter in favor of M & T Mortgage Corporation for use and occupancy in the amount of $5,200.

 

C. In docket number 05-CV-00314, judgment shall enter in favor of Lisa Grant for damages in the amount of $6,632, attorney’s fees in the amount of $20,092.50, and costs in the amount of $914.81.

 

So entered this 27th day of March, 2006.

 

 

 

 

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End Of Decision

 

HOUSING COURT

M&TBANK v. LISA GRANT and LISA GRANT v. M & T MORTGAGE CORP.

 

 

HOUSING COURT

LISA GRANT v. M & T MORTGAGE CORPORATION

 

WESTERN DIVISION

 

Docket # DOCKET NO. 05-CV-0314

Parties: LISA GRANT v. M & T MORTGAGE CORPORATION

Judge: /s/Dina E. Fein

Associate Justice

Date: October 28, 2005

RULINGS AND ORDERS ON DEFENDANT’S MOTION TO ALLOW THIRD PARTY COMPLAINT

 

The above-captioned matter came before the court for hearing on the defendant’s motion to allow third party complaint. Upon consideration of the parties’ submissions and arguments, the court rules as follows:

 

1. The defendant in this case moves to allow a third party complaint against Dorothy Sanderson, the former owner of the subject property where the plaintiff has resided at all times relevant hereto. The defendant argues in support of its motion that “Sanderson is liable to M & T for any and all claims asserted by Grant, and is a necessary and indispensable party…” (Defendant’s Motion to Allow third Party Complaint, p. 8).[1]

 

2. The plaintiff’s claims, originally raised in counterclaim to the defendant’s summary process case and transferred to the civil docket upon dismissal of that case as to Ms. Grant, are as follows: breach of the implied warranty of habitability; interference with quiet enjoyment of the premises; failure to furnish gas and heat; and unfair and deceptive practices. As to

these claims,

 

 

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[1] The defendant also seems to base its motion on the impression, hopefully since corrected, that Ms. Sanderson is no longer party to a summary process action, 05-SP-1067. She is.

 

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the defendant has not articulated a basis for asserting Ms. Sanderson’s potential liability, and no such basis presents itself to the court. Liability for breach of the warranty of habitability, if any, is strict. Berman & Sons v. Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979). The plaintiff’s claim for interference with quiet enjoyment arising out of conditions at the premises and related Chapter 93a claims accrued, if at all, only at such time as the defendant acquired a duty to maintain the property, by which time the former owner and prospective third party defendant, by definition no longer had such a duty. There is, therefore, no basis for the defendant’s assertion that Ms. Sanderson is liable for the plaintiff’s claims raised herein.

 

3. This ruling does not address the question of whether the defendant has potential claims against Ms. Sanderson arising out of their former relationship as mortgagor and mortgagee. The court expresses no opinion on that question other than to say that any such claims would necessarily involve facts and causes of action not raised in this case, and the interests of judicial economy therefore do not mitigate in favor of joining them herein.

 

4. Order: Based upon the foregoing, the defendant’s motion to allow third party complaint is denied.

 

So entered this 28th day of October, 2005.

 

 

 

cc: Michael Gove, Esq.

Law Clerk

 

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End Of Decision

 

HOUSING COURT

HERBERT G. BEREZIN, Partner of LORD JEFFREY APARTMENTS Plaintiff v. RYAN GAMBLE

 

WESTERN DIVISION

 

Docket # CIVIL ACTION NO. 06 CV 00676

Parties: HERBERT G. BEREZIN, Partner of LORD JEFFREY APARTMENTS Plaintiff v. RYAN GAMBLE

Judge: /s/Dina E. Fein,

Associate Justice

Date: November 8, 2006

ORDER

 

WHEREAS this Court on October 27, 2006 issued an Ex Parte Order prohibiting Ryan Gamble from entering onto, remaining in or in any way interfering with the Plaintiff or Tenants’ right of possession in the premises located at 121 North Main Street, Belchertown, Massachusetts and/or from entering into and/or remaining in the buildings located at 121 North Main Street, Belchertown, Massachusetts; and

 

WHEREAS this matter was scheduled for further hearing on October 30 at 2:00 p.m. in Northampton at which time the Defendant was ordered to appear; and

 

WHEREAS said Defendant appeared at said date and time by Order dated November 3, 2006 the Court ordered that the previous Order dated October 27, 2006 shall remain in full force and effect and that by agreement of the parties the matter was scheduled for an evidentiary hearing in the Springfield session on November 8, 2006 at 9:00 a.m.; and

 

WHEREAS the Plaintiff was present for said hearing but was unaware of the fact that the Defendant was incarcerated in the Hampshire County House of Correction at the time of the scheduled hearing date; and

 

WHEREAS there were numerous witnesses subpoenaed to Court by the Plaintiff which would corroborate the allegations contained in the Verified Complaint and the Affidavits filed therewith;

 

NOW THEREFORE it is hereby ordered by this Court (1) the Defendant Ryan Gamble is hereby prohibited from entering onto, remaining in or in any way interfering with the Plaintiff or Tenants’ right of possession in the premises located at 121 North Main Street, Belchertown,

 

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Massachusetts and/or from entering into and/or remaining in the buildings located at 121 North Main Street, Belchertown, Massachusetts for a term of one year from the date of this Order, (2) the Court may extend this Order upon showing of good cause and (3) Defendant shall pay Plaintiff the court costs of $408.40.

 

 

VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE AND THAT ANY VIOLATION OF SUCH ORDER IN ITS EFFECTIVE TERM SHALL BE PUNISHABLE BY A FINE OF NOT MORE THAN $3,500.00 OR BY IMPRISONMENT FOR NOT MORE THAN TWO YEARS IN THE HOUSE OF CORRECTION, OR BOTH.

 

 

Service of this Order on the Defendant may be made upon him in the Hampshire County House of Correction if he still is a resident therein.

 

 

 

So entered this 8th day of November, 2006.

 

 

 

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End Of Decision

HOUSING COURT

MICHAEL GERMAIN, M.D., et al v. THE TOWN OF MONTEREY ZONING BOARD OF APPEALS, et al,

 

WESTERN DIVISION

 

Docket # DOCKET NO. 04-CV-0090 and DOCKET NO.05-CV-284

Parties: MICHAEL GERMAIN, M.D., et al v. THE TOWN OF MONTEREY ZONING BOARD OF APPEALS, et al,

Judge: /s/Dina E. Fein

Associate Justice

Date: May 4, 2006

RULINGS AND ORDERS ON CROSS MOTIONS FOR SUMMARY JUDGMENT IN CONSOLIDATED CASES

 

The above-captioned consolidated cases are before the court on cross motions for summary judgment. Upon consideration of the parties’ arguments and submissions, the following rulings and orders shall enter:

 

1. Undisputed Facts: The defendant Town of Monterey has enacted Zoning Bylaws (“the Bylaws”). The Bylaws define the term “lot” as “[a]n area of land in one ownership with definite boundaries, used or available for use as the site of one or more buildings.” The Bylaws divide Monterey into districts, one of which is the Lake Shore District, which is defined as consisting “of all land within 260 feet of the mean high water level line of Lake Buel or Lake Garfield.” The Bylaws set minimum lot dimensions for the Lake Shore District. In addition, effective May 5, 1990, the Bylaws have prohibited the installation of any “on-lot subsurface sewage effluent leaching system such as a cesspool, dry well, leaching field or a drainage system for the waste

 

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water from showers, sinks, etc….within 150 feet of the mean high water line of the bodies of water indicated on a map entitled “Monterey Streams and Ponds…” The Bylaws provide an exception from this set back requirement, “in the case of a lot duly recorded prior to October 19, 1990,” as to which the Board of Health “may authorize construction or installation of such disposal system at a reduced distance.”

 

2. The plaintiff, Michael Germain (” Dr. Germain”) owns an unimproved lot at 3A Buckingham Lane, Assessors Map 15, Lot 179, in

Monterey. Dr. Germain’s property, which is located in the Lake Shore District, is also known as Lot # 6 (hereinafter “Lot # 6), on a survey plan entitled “Lake Shore Gardens, Section 1, Subdivision A” dated June, 1961, recorded in the Southern Berkshire Registry of Deeds in Map Book 3 at Page 3.

3. By deed dated November 20, 1965, the plaintiff Jean Germain (“Ms. Germain”) acquired a lot at 3 Buckingham Lane, also in the Lake Shore District, immediately abutting Dr. Germain’s lot to the north, and known on the subdivision survey plan as Lot # 5 (hereafter “Lot 5”). On or around June 17, 1992, Ms. Germain acquired an additional parcel of land (“Parcel # 2) which comprised roughly half of the lot immediately to the north of Lot # 5 in the Lake Shore Gardens subdivision. When Ms. Germain acquired Parcel # 2, neither it nor Lot # 5 met the minimum area or frontage requirements of the Bylaws.

 

4. On or around October 9, 1999, the Town of Monterey Zoning Board of Appeals granted Ms. Germain a special permit to construct an addition to a pre-existing, nonconforming dwelling on Lot # 5, conditioned upon Ms. Germain documenting the merger of Lot # 5 and Parcel # 2, “by Deed describing the land as one lot around its perimeter with an affirmation (sic) statement of the intention to combine the parcels into one lot.” On or around November 4, 1999, Ms. Germain conveyed in a single deed the property comprised of Lot # 5 and Parcel # 2 to James

 

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M. Lamme, III. The deed was recorded, and stated as follows: “The purpose of this deed is to combine the two parcels into one parcel to comply with the provisions of a special permit…” Also on or around November 4, 1999, Mr. Lamme conveyed the property back to Ms. Germain, by deed using identical language.

 

5. On or around January 16, 2002, Dr. Germain applied to the Town of Monterey Board of Health (“the Board of Health”) for a Disposal System Construction Permit. The application was rejected as noncompliant with Title V.

 

6. On or about February 15, 2003, another plan was submitted to the Board of Health on behalf of Dr. Germain for a Zero Discharge System plan with a Title V backup system (“the proposed septic system”). The proposed septic system was associated with a two bedroom house to be constructed on Lot # 6, and included a singulair tank located approximately 36 feet from the mean high water line of Lake Garfield, a force main crossing Ms. Germain’s property to the north, and a leaching field located between 81 and 115 feet from the mean high water line of Lake Garfield on that portion of Ms. Germain’s property which was originally Parcel #2. By letter dated December 3, 2003, the Board of Health denied Dr. Germain’s application, “due to the environmentally sensitive nature of the site, projected impacts from stormwater, and noncompliance with…” the minimum setback requirements of the Bylaws.

 

 

7. On or around January 10, 2005, Dr. Germain filed an application for a building permit, to construct a three bedroom house on Lot # 6. The application was rejected for several reasons, including that “a building permit cannot be issued until a Sewage Disposal Permit is issued by the Board of Health.” Dr. Germain appealed the denial to the Zoning Board of Appeals, which

 

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denied the appeal. Dr. Germain then requested judicial review by the court.[1]

 

8. Summary Judgment Standard: Summary judgment is appropriate when no material facts are in dispute and the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c); Highlands Ins. Co. v. Aerovox, 424 Mass. 226, 232, 676 N.E.2d 801 (1997). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue and the fact that it is entitled to judgment in its favor. Pederson v. Time Inc., 404 Mass. 14, 16-17, 532 N.E.2d 1211 (1989). A moving party which does not bear the burden of proof at trial is entitled to summary judgment if it submits affirmative evidence, unmet by countervailing materials, that either negates an essential element of the nonmoving party’s case or demonstrates that the nonmoving party has no reasonable expectation of proving an essential element of its case. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991). The opposing party cannot rest on the pleadings or on mere assertions of disputed facts to defeat the summary judgment motion. “If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact …” Pederson, 404 Mass. at 17, 532 N.E.2d 1211. When reviewing a summary judgment record, the court credits facts in the light most favorable to the nonmoving party. Bisson v. Eck, 430 Mass. 406, 407, 720 N.E.2d 784 (1990); Gray v. Giroux, 49 Mass.App.Ct. 436, 437, 730 N.E.2d 338 (2000).

 

9. Analysis: There is no dispute that the proposed septic system would be located within

 

 

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[1] The plaintiffs have included a number of factual allegations in their submissions pertaining to the administrative procedures below, and seeming to suggest that these procedures were unfairly misleading. While this ruling should not be read as condoning such an approach, assuming it did transpire in the way suggested by the plaintiffs, these allegations are ultimately irrelevant to the ruling herein; “[T]he doctrine of estoppel cannot stay the hand of a municipality in enforcing its zoning laws.” Ferrante v. Board of Appeals of Northampton, 345 Mass. 158, 162,186 N.E.2d 471, 474-475 (1962).

 

 

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150 feet of the mean water line of Lake Garfield, contrary to the setback provisions of the Bylaws. The parties’ cross motions frame the question of whether Ms. Germain’s lot is “grandfathered” and thereby exempt from the Bylaws. The plaintiffs argue, in effect, that the combination of Lot # 5 and Parcel # 2 into a single parcel by deed dated November 4, 1999 did not strip the resulting property of the grandfathered status enjoyed by its constituent predecessors. The defendants argue, in the alternative, that Lot #5 and Parcel #2 merged as a matter of law when Ms. Germain acquired the second parcel in June, 1992; or by operation of the deed conveying both as a single parcel in November, 1999. For the reasons set forth herein, the court rules that the defendants are entitled to summary judgment in their favor.

 

10. Ms. Germain holds title to her property pursuant to a chain of title which most recently included transfer to her of a single parcel comprising all of the land which previously constituted Lot # 5 and Parcel #2. This deed did not evidence an intent to preserve the separate lots which existed previously. See, Collins v. Wieworka, Land Court, Middlesex Case no. 216654, November 13, 1995 (Lombardi, J.). To the contrary, the November 4, 1999 deed from Mr. Lamme to Ms. Germain, the deed pursuant to which she now holds title to her property, established definite boundaries for a single piece of property in her sole ownership, thereby satisfying the definition of a “lot” under the Bylaws. In this way the deed was clearly intended to merge the two lots, as required by the terms of the special permit which triggered the transfer.

 

Inasmuch as the plaintiffs acquired one lot and not two, it is not open for them, in effect, to revive the old lots … which no longer exist as far as the zoning by-law is concerned. The only sensible construction of the minimum area and frontage requirement is that the exception relative to undersized lots applies to lots which not only were in existence in [1990] but also have retained a separate identity. Lindsay v. Board of Appeals of Milton, 362 Mass. 126, 131(1972).

 

11. Nor, as argued by the plaintiffs, does the single lot conveyed to Ms. Germain on

 

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November 4, 1999 enjoy grandfathered status simply because it consists of property which previously constituted two separate, grandfathered, lots. This conclusion is compelled in part by the plain language of the special permit which required that the deed include “an affirmation (sic) statement of the intention to combine the parcels into one lot.” The only reasonable interpretation of the special permit is that it allowed Ms. Germain’s request to build an addition to the existing nonconforming structure

conditioned upon her forfeiting the grandfathered status of her parcels thereafter, specifically by combining them into a single lot and thereby bringing the resulting lot under the dimensional and set back requirements of the Bylaws. [2]

 

12. The special permit expressly required Ms. Germain to document the “merger” of her two parcels, which she did by virtue of the transfers by deed in November, 1999. As the two lots were merged in fact, the court need not and does not reach the additional question of whether they merged by operation of law when the second parcel was acquired in 1992.

 

13. For these reasons, the conclusion is unavoidable that Ms. Germain’s lot did not exist “prior to October 19, 1990,” and is therefore not eligible for the exception to the setback requirements of the Bylaws. Even assuming, arguendo, that the exception did apply, however, it permits the ZBA to dispense with the setback provisions; it does not require the ZBA to do so. In light of the historical steps taken by the ZBA to insure that Ms. Germain’s property be treated as a single lot, the ZBA would not have abused its discretion, even assuming it had such discretion, in declining to apply the exception to this situation.

 

14. The Building Permit: The State Building Code provides in relevant part that “[e]very

 

 

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[2] G.L. c. 40A, s. 6 provides in pertinent part as follows: “The record owner of the land shall have the right, at any time, by an instrument duly recorded in the registry of deeds for the district in which the land lies, to waive the provisions of this section, in which case the ordinance or by-law then or thereafter in effect shall apply.”

 

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dwelling unit shall be provided with plumbing and sanitary facilities…” 780 CMR 3603.24.1 The Board of Health having properly denied Dr. Germain’s application for the proposed septic system, it follows irrefutably that the Building Inspector and ZBA also acted properly in denying his application for a building permit.

 

15. Order for Entry of Judgment: For the foregoing reasons, the defendants are entitled to summary judgment in their favor. Judgment shall enter in favor of the defendants in 04-CV-0090. Judgment shall enter in favor of the defendants in 05-CV-284

 

So entered this 4th day of May, 2006.

 

 

 

 

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End Of Decision

 

HOUSING COURT

SANDRA OVERLOOK and JESSE MARTINEZ, on behalf of themselves and all persons similarly situated v. MORGAN MHP MASS, LLC., ET AL

 

 

Docket # NO. 05-CV-0066

Parties: SANDRA OVERLOOK and JESSE MARTINEZ, on behalf of themselves and all persons similarly situated v. MORGAN MHP MASS, LLC., ET AL

Judge: /s/Dina E. Fein, Associate Justice

Date: November 14, 2005

RULINGS AND ORDERS ON PLAINTIFFS’ MOTION FOR PROTECTIVE ORDER AND MOTION TO COMPEL

The above-captioned matter came before the court for hearing on October 12, 2005, on the plaintiffs’ motion for protective order and motion to compel. Upon consideration of the parties arguments and submissions, the following rulings and orders shall enter:

 

1. Motion for Protective Order: The plaintiffs move for a protective order preventing the defendants from obtaining records concerning the Wheel Estates Tenant Association (the Tenant Association). The Tenant Association is not a party to this case. The defendants argue, however, that the sought records are discoverable, because the plaintiffs have alleged as an element of damages their inability to convene Tenant Association meetings due to the unavailability of the community room. The requested records do not bear on this question, however. Organizing and/or joining a tenants’ association is protected activity under G.L. c. 186, s.18 and G.L. c. 239, s.2A. In general, and particularly given the protected nature of the activity in question, it is incumbent upon the defendants to show that information concerning the Tenant Association is

 

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reasonably likely to lead to the discovery of admissible evidence. Mass. R. Civ. P. 26. No such showing has been made, and the motion is therefore allowed.

 

2. Motion to Compel: The plaintiffs seek to compel further discovery responses to several interrogatories and requests for production of documents directed at identifying prospective class members, and establishing the bases for class certification. In their original responses, the defendants “declined” to respond to the discovery requests. The plaintiffs now move to compel further responses, arguing that the sought information is discoverable, and that the defendants have waived their right to object.

 

3. While the plaintiffs are technically correct that the defendants have waived their right to object to the discovery requests, the circumstances of this case require further analysis. The plaintiffs seek information about individuals (tenants at the manufactured home park) who are not yet parties to the case, including private information such as rent rates. The court takes at face value the defendants’ representation that their failure to respond to the sought discovery was motivated, at least in part, by concern for the privacy interests of those individuals. I share that concern. Until and unless the putative class is certified and represented herein, the court has an independent obligation to consider the interests of the putative class members. The plaintiffs argue correctly that class members do not have the right

to “opt out” under Massachusetts law. This does not mean, however, that the court has no reason to consider the interests of absent class members, and insure that those interests are protected in the context of a class action.

 

4. The plaintiffs also point justifiably to the inherent inefficiency in obtaining such discovery responses as bear on class certification separately from discovery responses which bear on the putative class members’ damages. Management of a class action is vested to the sound discretion of the trial judge. From the court’s perspective, the privacy interests of absent class

 

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members trump the marginal inefficiency associated with phased discovery, and notice to absent class members should precede disclosure of private information not essential to establishing the bases for class certification.

 

5. Finally, interrogatory 18 and request 17 appear to request information which is inherently duplicative of that requested in interrogatory 11 and request 10, respectively.

 

6. Order: Based upon the foregoing, the plaintiffs’ motion to compel is allowed as to interrogatory 11 and request for production of documents 10, and denied as to interrogatories 12 and 18, and requests 11 and 17. The plaintiffs’ request for attorney’s fees is denied.

 

7. The Clerk’s office is requested to convene a pretrial conference, for the purpose of scheduling the remaining litigation. Dispositive motions, if any, shall not be heard in advance of a ruling on class certification, except with leave of court.

 

So entered this 14th day of November, 2005.

 

 

 

 

cc: Robert G. Fields, Esq.

Clerk Magistrate

 

Peter Montori, Esq.

Assistant Clerk Magistrate

 

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End Of Decision

 

HOUSING COURT

SANDRA OVERLOOK and JESSE MARTINEZ, on behalf of themselves and all persons similarly situated v. MORGAN MHP MASS, LLC, et al

 

 

Docket # NO. 05-CV-0066

Parties: SANDRA OVERLOOK and JESSE MARTINEZ, on behalf of themselves and all persons similarly situated v. MORGAN MHP MASS, LLC, et al

Judge: /s/Dina E. Fein, Associate Justice

Date: July 3, 2006

RULINGS AND ORDERS ON PLAINTIFFS’ MOTION TO STRIKE AND MOTION FOR CLASS CERTIFICATION

 

1. Motion to Strike: The plaintiffs move to strike affidavits of other residents at the subject mobile home park, on two grounds. First, this being a putative class action, the plaintiffs contend that their attorney constructively represents all tenants at the park, and that the affidavits were therefore procured in contravention of the ethical rules which prohibit an attorney or someone acting under the attorney from contacting a represented party. Second, the plaintiffs argue that the affidavits are irrelevant to the issues before the court.

 

 

2. The mere filing of a class action does not in and of itself establish a constructive attorney client relationship, shutting down all communication between counsel for the defendants and prospective class members. This is all the more so in the case of an ongoing business relationship between the defendants and the prospective class members, such as the ongoing landlord/tenant relationships at issue herein. One can imagine any number of legitimate reasons

 

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why counsel for the defendants would have reason to communicate with tenants at the subject mobile home park, including in circumstances which implicate the issues raised in this case: pending eviction cases; neighbor-to-neighbor disputes; complaints by tenants; etc. To foreclose all such communication upon the mere filing of a class action, in the absence of a restriction to that effect imposed by the court, and prior to the court determining that the case should in fact proceed as a class action, intrudes too far and unnecessarily into the established business relationship between the defendants and their tenants.

 

3. The court recognizes that the very business relationship which might necessitate communication also creates the risk of overreaching and intimidation by the defendants. In retrospect, the better practice, for the court as well as for counsel, might have been to anticipate this issue and address it early on under Mass. R. Civ. P. 23(d). Not having done so, however, and in the absence of any persuasive evidence that the affidavits were procured in bad faith or using intimidating tactics, they need not be stricken.

 

4. In support of their position, the plaintiffs rely in part on Gulf Oil Co. v. Bernard, 432 U.S. 89 (1981), in which the Court found that an order restricting contact with class members by the named parties and their counsel was an abuse of discretion. I do not read that decision as standing for the proposition that putative class counsel are always and exclusively permitted to contact prospective class members. Rather, the question of who may

contact prospective class members prior to class certification is case-specific, and depends on a number of circumstances including the relationship among the parties and the prospective class members, whether the prospective class members have received formal notice of the proceedings, and the purpose of the communication.

 

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5. Finally, the affidavits are not wholly irrelevant. Although they address in part the tenants’ association, which is neither a party to the case nor otherwise relevant to these proceedings apart from the plaintiffs’ right to meet as such, they also address road repairs at the park and the affiants’ use of the community center, and therefore bear on the question of class certification, as discussed further below. For these reasons, the plaintiffs’ motion to strike the affidavits is denied.

 

6. Motion for Class Certification: The plaintiffs’ motion for class certification is denied, based on the court’s conclusion that the similarities among the prospective class members no longer predominate over their differences. This case originally requested injunctive relief and damages. In terms of injunctive relief, the plaintiffs requested an order requiring that the defendants take all steps necessary to reopen the community center and repair the park roadways. An order to that effect was issued by the court on March 3, 2005, and the court understands that there has been effective compliance with that order, although the parties dispute the timing of compliance. The injunctive order having already issued, class certification is not necessary to insure that all residents at the mobile home park enjoy the benefit of that relief, as to which they have a common potential interest.

 

7. What remains of the case, then, is the plaintiffs’ claim for damages. The court’s ruling on class certification turns on whether all park tenants have a similar claim for damages, such that class treatment is appropriate and more efficient than the alternatives. On these questions, the plaintiffs argue that every tenant at the park has a claim for interference with quiet enjoyment based upon the unavailability of the community center and the condition of the roadways, and that statutory damages would be appropriate for every tenant. The court is not persuaded on

 

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either point.

 

8. The plaintiffs argue correctly that interference with quiet enjoyment occurs when a tenant is deprived of the use of rental premises, including common areas. They submit, as to the circumstances presented in this case, that the court “should consider only whether the action of the defendants was an action that affected the residents of the park in the same manner.” Supplemental Memorandum in Support of Plaintiffs’ Motion for Class

Certification, p. 2. While this statement is accurate as far as it goes, it does not support the ultimate conclusion advanced by the plaintiffs. In order to have a cause of action for interference with quiet enjoyment, the tenant must have been impacted by the deprivation. The question of whether a given landlord’s conduct rises to the level of interference with quiet enjoyment is, therefore, inherently individualized: was the landlord “at least negligent” as to a given tenant; and was a given tenancy seriously impaired, or not. The record suggests that there are approximately 200 tenants at the park. One can imagine any number of scenarios in which the differences among those tenants would bear on whether the landlord interfered with their quiet enjoyment: was the community center open or closed when the tenant entered into the lease; if closed, did the landlord disclose that fact to the prospective tenant; did a given tenant ever use the community center; if not, was her tenancy significantly impaired by its unavailability; does the tenant have or use a car; what were the conditions of the park roadways during the period of a specific tenancy; etc.

 

9. In addition, and contrary to the plaintiffs’ working assumption, the court does not conclude that statutory damages would invariably be appropriate as to every tenant for whom a claim of interference with quiet enjoyment does lie. Rather, there may be tenants for whom an award of actual damages would be appropriate such as, for example, the hypothetical individual

 

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who can prove damage to his vehicle as a result of the condition of the roadways, or who had gone to great lengths in planning an important family event to take place at the community center. Such scenarios might well warrant an award of actual damages in excess of statutory damages, as would be appropriate under G.L. c. 186, s. 14.

 

10. The plaintiffs bear the burden of establishing that class action treatment is superior to the alternatives. Mass. R. Civ. P. 23(b). For the reasons set forth above, the record before the court does not reflect the degree of commonality among the tenants of the park necessary for the plaintiffs to meet this burden, and the motion for class certification is therefore denied.

 

11. Order: The plaintiffs’ motions to strike and for class certification are denied. The Clerk’s office is requested to schedule this matter for pretrial conference.

 

So entered this 3rd day of July, 2006.

 

 

 

cc: Peter Montori, Esq.

Assistant Clerk Magistrate

 

 

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End Of Decision

 

HOUSING COURT

STACY and TOM MASON, Plaintiffs v. EVELYN SANCHEZ, Defendant

 

Western Division

 

Docket # 04-SP-0530

Parties: STACY and TOM MASON, Plaintiffs v. EVELYN SANCHEZ, Defendant

Judge: /s/ Dina E. Fein

Associate Justice

Date: March 31, 2004

FINDINGS, RULINGS AND ORDER FOR JUDGMENT

 

After hearing on March 24, 2004, the court finds and rules as follows:

1. It is undisputed that the landlord received a security deposit in the amount of $750 from the tenant, at or around the inception of the tenancy, and failed properly to deposit the security in a bank account as specified at G.L. c. 186, s. 15B. It is also undisputed that the tenant filed a counterclaim against the landlord which alleged, inter alia, that the landlord was “obligated to immediately return the deposit,” in response to which the landlord did not return the security deposit, but did deposit it in a separate interest bearing account.

2. By virtue of mishandling the security deposit at the inception of the tenancy, however unintentionally, the landlord herein forfeited the right to retain the deposit, and was obligated to return it upon request. G.L. c. 186, s.15B(6)(a). “Any one of the violations of duty listed in subsection (6) will entitle the tenant to immediate return of his entire

 

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deposit on request, regardless of whether the violation was innocent or wilful.” Castenholz v. Mary Caira, 21 Mass. App. Ct. 758, 762, 490 N.E.2d 494, 497 (1986).”…[T]he commencement of the [legal] action itself would, in accordance with contract law, operate as a demand.” Id., 21 Mass. App. Ct. at 764. In this case, the tenant’s counterclaim operated as a demand for return of the security deposit. In failing to return the security deposit upon demand by the tenant, the landlord triggered the application of G.L. c. 186, s.15B(7), and is liable for treble damages, or three times the security deposit.

3. Order for Entry of Judgment: Judgment shall enter in favor of the defendant tenant for three times the security deposit, or $2,250.

So entered this 31st day of March, 2004.

 

 

 

 

 

End Of Decision

 

 

HOUSING COURT

COLONIAL ESTATES, Plaintiff v. CHRISTOPHER ISSA Defendant.

 

WESTERN DIVISION

 

Docket # 04-SP-414

Parties: COLONIAL ESTATES, Plaintiff v. CHRISTOPHER ISSA Defendant.

Judge: /s/ DINA E. FEIN,

Associate Justice

Date: January 9, 2006

REVISED ORDER

 

This order revises the previous order entered July 18, 2005 in the above-captioned case.

The parties shall adhere to the following terms and conditions once the defendant is released from respite care:

 

1. The prohibition against the defendant living at 93 Beacon Circle is lifted.

 

2. Plaintiff agrees that the defendant will be transferred to another unit at 27 Beacon Terrace as soon as the unit is ready for occupancy. A new tenancy will be established once the transfer has taken place. However, this case shall remain open for review for a period of six months from the date of this order.

 

3. Defendant’s application for Social Security has been approved. Once the monthly payments have been determined, plaintiff agrees to recalculate defendant’s monthly rent.

 

4. The DMH case manager will arrange for the selection of a representative payee for the defendant.

 

5. Defendant will continue to cooperate with his DMH case manager and comply with the following plan:

 

 

a) defendant will maintain regular visits to his psychiatrist and therapist;

b) defendant will cooperate with the visiting nurse, who will visit the defendant and administer defendant’s medications or ensure that defendant’s medications are being taken; and

c) defendant will attend selected day treatment program;

d) defendant will conform his behavior to the requirements of the lease and agrees not to disturb the quiet enjoyment of the other tenants.

 

6. Defendant is on a waiting list for an outreach provider and will cooperate with the provider, once he or she becomes available.

7. This case shall return for review on June 27, 2006 at 2:00 p.m. If on that date no allegations have been made of any violations of this order, the case shall be dismissed.

 

So entered this 9th of January, 2006

 

 

 

 

 

End Of Decision

 

HOUSING COURT

JOSE SANTOS, Plaintiff v. ELIZABETH LOPEZ, Defendant

 

Western Division

 

Docket # 04SP0613

Parties: JOSE SANTOS, Plaintiff v. ELIZABETH LOPEZ, Defendant

Judge: /s/ Dina E. Fein

Associate Justice

Date: February 26, 2004

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned summary process (eviction) case came before the court for trial on

February 26, 2004, at which time the following findings of fact and rulings of law entered:

 

1. The plaintiff (landlord) owns and the defendant (tenant) rents the property located at 20 Collins Street, Springfield (the premises). Rent totaling $1,260 is unpaid through February, 2004. The tenancy was properly terminated before this case was filed in court.

2. There existed various substandard conditions at the premises at the inception of the tenancy (August 25, 2003). The substandard conditions have reduced the fair rental value of the premises by 25% on average, for a total reduction of $900 ($600 contract rent x 25% = $150 x 6 months [September 2003 through February, 2004]). In addition, the premises were without hot water for approximately 3 weeks, which further reduced the fair rental value by $150, for a total rent abatement of $1050.

3. Order:

 

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A. As provided for under G.L. c. 239, s. 8A, the tenant shall have ten days from the entry date of this order to pay the sum of $1,260 (unpaid rent) – $1,050 (rent abatement) = $210, to the Clerk’s office. If the tenant pays this sum within the required period, judgment for possession shall enter in favor of the defendant. If the tenant fails to make payment, judgment for possession and $210 shall enter in favor of the plaintiff at the expiration of the ten day period.

B. The fair rental value at the premises shall continue to be reduced by 25%,

to $450, until such time as the landlord repairs the substandard conditions.

C. The tenant is ordered forthwith to remove accumulated belongings and debris at the subject premises.

D. The tenant is ordered to move the car in the driveway, so as to permit another tenant to park there.

E. At the expiration of the ten day cure period, the court’s Housing Specialist Department is requested to inspect the subject premises, to insure that the tenant has removed accumulated belongings and debris, and to make a list of repairs which the landlord is to undertake, and a schedule for their completion.

F. The landlord is ordered to provide the tenant with 24 hours written notice of an intention to enter the premises to inspect, show the unit to a prospective tenant, or make repairs. The tenant shall not unreasonably deny access.

 

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So entered this 26th day of February, 2004.

 

 

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End Of Decision

 

 

HOUSING COURT

ANH BUI, Plaintiff v. ROSA LUCIA and LORI BEATTY, Defendants

 

Western Division

 

Docket # 04-SP-00909

Parties: ANH BUI, Plaintiff v. ROSA LUCIA and LORI BEATTY, Defendants

Judge: /s/ Dina E. Fein

Associate Justice

Date: April 12, 2004

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned summary process (eviction) case came before the court for trial on April 1, 2004, after which the following findings of fact and rulings of law are to enter, as provided for under Mass. R. Civ. P. 52(a):

1. The plaintiff (landlord) owns the property located at 32-34 Russell Street, West Springfield (the premises). The landlord lives on the 1′ floor at the premises, and rented the second floor unit to the defendants (tenants), effective April 1, 2003. The contract rent for the premises is $750 per month. On or around December 1, 2003 the landlord served and the tenants received a notice terminating the tenancy effective sixty days thereafter. Rent totaling $2,650 is unpaid through April, 2004.

2. The tenants have raised three defenses and/or counterclaims to the landlord’s case. First, they allege that they were locked out of the basement. Second, they allege that there have been substandard conditions at the premises since the inception. Third, they allege that the landlord’s sought eviction is retaliatory.

 

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3. The landlord padlocked the basement on February 19, 2004, thereby depriving the tenants of access to their washer and dryer. The landlord removed the padlock on March 18, 2004, after hearing before the court, during which she was instructed to do so. In depriving the tenants of access to their washer dryer, and an area which was originally available to them under the terms of their rental agreement, the landlord seriously interfered with the tenancy and breached the covenant of quiet enjoyment. lanello v. Court Management Corp., 400 Mass. 321, 509 N.E.2d 1 (1987). As provided for under the provisions of G.L. c. 186, s. 14, the tenants are entitled to the greater of their consequential damages or three months’ rent. There being no evidence of consequential damages, the tenants are awarded three months’ rent, or $2,250.

4. I find that there have been substandard conditions at the premises since the inception of the tenancy, including an infestation of rodents (mice), a leaking sink, and defective kitchen flooring. The tenants’ allegations regarding conditions at the premises constitute a defense based upon breach of the implied warranty of habitability, for which the landlord is strictly liable. Berman & Sons v. Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979). It is usually impossible to fix damages for breach of the implied warranty with mathematical certainty, and the law does not require absolute certainty, but rather permits the courts to use approximate dollar figures so long as those figures are reasonably grounded in the evidence admitted at trial. Young v. Patukonis, 24 Mass.App.Ct. 907, 506 N.E.2d 1164 (1987). The measure of damages

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

 

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5. I find that the fair rental value of the premises has ben reduced by 10%, on average, since the inception of the tenancy, as a result of substandard conditions. The tenants’ damages for the landlord’s breach of the warranty of habitability are therefore $750 (contract rent) x 10% _ $75 x 13 months (April, 2003 through April, 2004) = $975.

6. On or around August 13, 2003, the landlord received notice from the West Springfield Board of Health, ordering that she correct State Sanitary Code violations at the premises. Within 6 months of receiving the Board of Health citation, the landlord sent the tenants a notice terminating their tenancy, not for nonpayment of rent, thereby creating a presumption under G.L. c. 239, s.2A, and G.L. c. 186, s.18, that the termination was in reprisal against the tenants for contacting the Board of Health. The landlord offered no evidence to rebut this presumption, despite an invitation on the record to do so. The landlord is therefore liable for reprisal, entitling the tenants to an award of between one and three months’ rent. I award one month’s rent, or $750.

7. Order for Entry of Judgment: Based upon the foregoing, and as provided for under G.L. c. 239, s.8A, judgment shall enter in favor of the tenants for possession and $3,975 (tenants’ damages) – $2,650 (landlord’s rent claim) = $1,325. At the election of the tenants, this sum may be applied against future rent obligations.

So entered this 12th day of April, 2004.

 

 

 

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End Of Decision

 

HOUSING COURT

JEFFREY A. NEECE, Plaintiff v. DONNA DAWSON, Defendant

 

Hampden Division

 

Docket # 04-SP-0942

Parties: JEFFREY A. NEECE, Plaintiff v. DONNA DAWSON, Defendant

Judge: /s/ Dina E. Fein

Associate Justice

Date: March 23, 2004

FINDINGS, RULINGS AND ORDER

 

This summary process action came before the court for trial on March 18, 2004. Both parties were present. The following findings of facts and rulings of law are to enter, as provided for under Mass. R. Civ. P. 52(a):

1. The plaintiff (landlord) is the owner of 249 Hampden Street (“the premises”), which he rented to defendant (tenant) for $630 per month beginning on October 30, 2002.

2. The tenant owed $230 from October 2003 rent, and the parties reached a verbal agreement that the tenant would make monthly payments towards the arrearage, in an unspecified amount.

3. The tenant paid current rent for the months of November, December, 2004 and January, 2004, but no additional monies were paid toward the arrears.

4. On February 2, 2004, the tenant phoned the landlord to inform him of the tenant’s

 

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intention to withhold rent due to a leaking bathroom sink, and inadequate hot water. During this conversation, the tenant informed the landlord that she would be reporting these conditions to the Board of Health.

5. A notice to quit was served on the tenant sometime between February 7, 2004, and February 14, 2004. The exact date on which the notice was received is irrelevant, given the rulings herein.

6. The premises was inspected by the Board of Health on February 12, 2004.

7. As of the time of trial, the tenant had vacated the subject premises, and represented that she would return the keys to the landlord by March 19, 2004. The issue of possession is therefore moot. Rent totaling $860 remain unpaid.

8. Retaliation: In defense to the landlord’s case, the tenant raises illegal reprisal (retaliation). In informing the landlord of her intention to report conditions at the premises to the Board of Health, the tenant engages in protected activities under G.L. c. 186, s. 18, which provides in pertinent part as follows:

 

Any person…who threatens to or takes reprisal against any tenant of residential premises for the tenant’s act of, commencing, proceeding with, or obtaining relief in any judicial or administrative action the purpose of which action is to obtain damages under, or otherwise enforce, any federal, state or local law, regulation, by-law or ordinance, which has as its objective the regulation of residential premises…shall be liable for damages.

 

9. The landlord’s act in serving the notice to quit within 6 months of the tenant contacting the Board of Health triggered a legal presumption that the landlord terminated the tenancy in reprisal against the tenant for protected activities. This presumption may be rebutted only by clear and convincing evidence that the landlord had a sufficient independent reason for terminating the tenancy, and would have acted when he did, in the way he did, notwithstanding the tenant’s protected activity. Id.

 

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10. I find that the landlord did not meet his burden of rebutting the presumption of reprisal. Although a notice to quit

for nonpayment of rent does not trigger the statutory presumption of reprisal, the February rent was not unpaid, but rather withheld; withholding rent is not the legal equivalent of nonpayment. As to the small amount of claimed rent from October ($230) which was, in fact, unpaid as opposed to withheld, the landlord had 3 months prior to the tenant contacting the Board of Health in which to serve a notice to quit, and failed to do so. On the evidence presented, I am satisfied that the precipitating factor which led to the landlord’s serving the notice to quit was not the unpaid rent, but rather the combination of withheld rent and contact with the Board of Health. As such, I rule both that the presumption of retaliation was triggered by the notice to quit, and that the landlord has not offered clear and convincing evidence to rebut that presumption.

11. As a result of the landlord’s retaliation, the tenant is entitled to an award of between one and three months’ rent. I award one month’s rent, or $630.

12. Order for Entry of Judgment: The tenant’s damages ($630) shall be offset against the landlord’s unpaid rent claim ($860). Judgment shall enter in favor of the plaintiff landlord for $230.

So entered this 23rd day of March, 2004.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

CHARLES FOX, Plaintiff v. ROBERT DEEMER and DONNA LAROQUE, Defendants

 

WESTERN DIVISION

 

Docket # 04-SP-01026

Parties: CHARLES FOX, Plaintiff v. ROBERT DEEMER and DONNA LAROQUE, Defendants

Judge: /s/ Dina E. Fein

Associate Justice

Date: June 23, 2004

RULINGS AND ORDER ON DEFENDANTS’ MOTIONS TO DISMISS

The above-captioned summary process (eviction) case came before the court on June 16, 2004, for hearing on the defendants’ (tenants’) motions to dismiss. Upon consideration of the parties’ arguments and written submissions, the motions to dismiss are denied, for the reasons set forth below:

1. Legal Standard: In considering a motion to dismiss, all inferences are to be drawn in favor of the party opposing dismissal. Nader v. Citron, 372 Mass. 96, 360 N.E. 2d 870 (1977). Where matters outside the pleadings are presented to the court, the motion will be treated as one for summary judgment. Mass. R. Civ. P. 12(b).

1. Notice To Quit: The tenants move to dismiss on the grounds that one or both of them did not receive a notice to quit at least 14 days prior to service of the complaint in this case. Whether and when the tenants received notices to quit are questions of fact, for determination at trial. The tenants’ motion to dismiss on this ground is therefore denied.

 

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2. Waiver: The tenants argue that the landlord received and accepted rent payments after having terminated the tenancy, and without reserving his right to proceed with eviction, thereby waiving the termination. The tenants do not purport to have cured the entire amount of unpaid rent at any time, and argue that the acceptance of any payment without a reservation of rights gives rise to waiver.

3. Waiver is a question of intent. Gordon v. Sales, 337 Mass. 35 (1958).

 

While payment and acceptance of rent for a period in advance of occupancy, standing alone, are prima facie proof of the creation of a tenancy at will, and the fact of payment and acceptance is controlling if nothing else appears, other facts may permit or require a finding that the landlord did not intend to waive his right to possession .

 

Id. (Citations omitted).

 

4. The tenancy at issue in this case was under a written lease. Upon the tenants’ failure to make rental payments due under the lease, and the landlord’s service of notices to quit, the tenancy was transformed into one at sufferance, and the tenants became liable for the fair value of their use and occupation. G.L. c. 186, s. 3. A waiver by the landlord of his right to evict would attach only if a tenancy at will were implied by the parties’ conduct following termination of the lease. The undisputed facts, construed in favor of the landlord as they must be at this stage, do not compel the conclusion that the parties entered into a tenancy at will. There is no indication that rent was fully paid in advance at any time following service of the notices to quit. In addition, there is a suggestion in the record that the notices to quit were accompanied by a letter from the landlord which stated “…if you would like to cut out the nonsense and get on with life in a normal way, pay the rent due and let’s move on,” giving rise to an inference that a tenancy at will would have been created only if the tenants fully paid the rent then due. These aspects of

 

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the record suffice to create a question of fact as to whether the landlord waived his termination of the tenancy, and require denial of the tenants’ motion to dismiss.

5. Order: For the reasons set forth above, the defendants’ motions to dismiss are denied.

The Clerk’s office is requested to schedule this matter for trial.

 

So entered this 23rd day of June, 2004.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

JUSTIN DION, Plaintiff v. MIRIAM VAZQUEZ, Defendant

 

WESTERN DIVISION

 

Docket # 04-SP-01000

Parties: JUSTIN DION, Plaintiff v. MIRIAM VAZQUEZ, Defendant

Judge: /s/ Dina E. Fein

Associate Justice

Date: April 7, 2004

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned summary process (eviction) case came before the court for trial on March 25, 2004, after which the following findings of fact and rulings of law are to enter:

 

1. By notice dated December 14, 2004, the defendant (tenant) informed the plaintiff (landlord) that she intended to vacate the premises at 100 Exchange Street, 21’1 floor,

Chicopee. The notice included the following statement:

 

This letter is to inform you that we have we have (sic) found an apartment in which we will be moving in next month by the 15th of January or around there…So now I don’t have a reason to call the city right now, but you know that the apartment needs work do (sic) to these conditions on which the floor and the walls are not good and the electric system doesn’t work right (sic) I’m leaving this apartment

 

Thanks for your patience this is my 30 day notice

 

2. On or around February 18, 2004, the landlord sent the tenant a notice terminating her tenancy for nonpayment of rent. By the time the tenant received the notice, she had already vacated the premises, having commenced the process of moving on January 22,

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2004. Although the landlord did not receive the keys to the premises until February 24, 2004, this was due to the fact that he was out of town for several weeks, and inaccessible to the tenant, although she had been trying to reach him. Rent totaling $905, for the months of November and December, 2003 and January, 2004 was unpaid when the tenant vacated at the end of January. The issue of possession is moot.

3. Breach of Warranty of Habitability: In defense to the landlord’s rent claim, the tenant raises substandard conditions at the premises. I find that there were substandard conditions at the premises at the inception of the tenancy, when the landlord purchased the property, including floors and walls in disrepair, a leak in the bathroom, and electrical problems in the kitchen.

4. The tenant’s allegations regarding conditions at the premises constitute a defense based upon breach of the implied warranty of habitability, for which the landlord is strictly liable. Berman & Sons v. Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979). It is usually impossible to fix damages for breach of the

implied warranty with mathematical certainty, and the law does not require absolute certainty, but rather permits the courts to use approximate dollar figures so long as those figures are reasonably grounded in the evidence admitted at trial. Young v. Patukonis, 24 Mass.App.Ct. 907, 506 N.E.2d 1164 (1987). The measure of damages for breach of the implied warranty of habitability is the difference between the value of the premises as warranted, and the value in their actual condition. Haddad v. Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991).

5. I find that the fair value of the premises was reduced by 20%, as a result of substandard conditions there. The tenant’s damages for the landlord’s breach of the warranty of habitability are therefore $400 (contract rent) x 20% = $80 x 4 months (October through

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January) = $320.

6. Order for Entry of Judgment: Based upon the foregoing, judgment shall enter for the landlord, for damages only, in the amount of $905 (unpaid rent) – $320 (tenant’s damages) = $585.

 

So entered this 7th day of April, 2004.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

HOLYOKE HOUSING AUTHORITY Plaintiff v. GARY NELSON, Defendant

 

WESTERN DIVISION

 

Docket # 04SP1059

 

Parties: HOLYOKE HOUSING AUTHORITY Plaintiff v. GARY NELSON, Defendant

Judge: /s/ Dina E. Fein, Judge

Date: August 25, 2004

ORDER RESTORING TENANT TO UNIT

After hearing on July 13, 2004 for which both parties were present, the following order to restore tenant to unit is to enter:

1. It has been determined that the defendant shall be allowed,to resume occupancy of the premises located at 475 Maple Street, Unit #608, Holyoke, Massachusetts.

2. The effective date of the order to resume occupancy is stayed until July 15, 2004 at 12:00 noon.

3. Tenant is being allowed to resume occupancy of said unit conditioned upon the following:

 

a. Defendant shall cooperate fully with the Tenancy Preservation Program and their recommendations.

 

b. Defendant shall meet with Tenancy Preservation Program two times a week on Tuesdays and Thursdays. Parties expect that Tenancy Preservation Program shall meet with Mr. Nelson on those dates.

 

c. Defendant shall continue to cooperate and comply with Service Net and their recommendations including, but not limited to, outpatient therapy

and taking medications as ordered.

 

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d. Tenant is prohibited from causing any further disturbances in/on/near the subject premises or interfering with the right to peaceful quiet enjoyment of the subject premises, in particular directed towards any other residents.

 

e. Tenant is prohibited from contact with the following tenants of said premises:

 

i. Paulina Lopez, Unit #508;

ii. Fernando Diaz, Unit #708

iii. Margarita Rodriguez, Unit #609

iv. E rnesto Colon, Unit #307

v. Holyoke Housing Authority shall notify these tenants that they should refrain from having any contact with Mr. Nelson.

f. Parties to appear in court for weekly reviews to determine compliance with order and to monitor matter.

 

So entered this 25th day of August, 2004.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

ROBERT KUSHNER, Plaintiff v. ALICE HOOD, Defendant

 

WESTERN DIVISION

 

Docket # 04-SP-02849

Parties: ROBERT KUSHNER, Plaintiff v. ALICE HOOD, Defendant

Judge: /s/ Dina E. Fein

Associate Justice

Date: August 13, 2004

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned summary process (eviction) case came before the court for trial on August 5, 2004, after which the following findings of fact and rulings of law are to enter, as provided for under Mass. R. Civ. P. 52(a):

 

1. The plaintiff (landlord) manages and the defendant (tenant) rents the premises located at 120G Lamplighter Lane, Springfield. On or around July 2, 2004, the landlord served and the tenant received a 14 day notice to quit, purporting to terminate the tenancy for nonpayment of rent. The notice to quit represented that the tenant then owed $740. This figure included unpaid rent in the amount of $695, and fees totaling $45 for service of a notice to quit dated December 3, 2003, a notice to quit dated January 22, 2004, and a summary process complaint and summons served on December 29, 2003. Prior to expiration of the notice to quit served on July 2, 2004, and prior to entry of the complaint in this case, the tenant paid the rent claimed in the notice, $695.

2. The landlord’s case is defective for at least two reasons. First, the landlord served a

 

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notice to quit for nonpayment of rent, but claimed sums in the notice which were not rent. The law requires that a notice to quit inform the tenant as to the reason that the tenancy is being terminated. A 14 day notice to quit applies only when the tenancy is being terminated for nonpayment of rent, not for other reasons, such as a failure to pay other expenses.

3. Second, by the time the complaint in this case was served and entered, the tenant was current with her rent. The landlord seeks recovery of expenses, a claim for which no jurisdiction lies in a summary process case. G.L. c. 239, s.2.

4. Having ruled that the case is defective for the reasons set forth above, the court need not reach, and does not rule, on the question of whether the landlord herein has the right, under the terms of the rental agreement or by statute, to recover from the tenant the costs of serving a notice to quit.

5. Order for Entry of Judgment: Judgment shall enter for the defendant tenant.

 

 

So entered this 13th day of August, 2004.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

BOARD OF TRUSTEES, SOUTH CONGREGATIONAL CHURCH, Plaintiff v. GLEN and DONNA BROOKS, Defendants

 

WESTERN DIVISION

 

Docket # 04-SP-02851

Parties: BOARD OF TRUSTEES, SOUTH CONGREGATIONAL CHURCH, Plaintiff v. GLEN and DONNA BROOKS, Defendants

Judge: /s/ Dina E. Fein

Associate Justice

Date: September 28, 2004

RULING AND ORDER ON DEFENDANTS’ MOTION TO DISMISS

 

The above-captioned matter came before the court on September 13, 2004, for hearing on the defendants’ (tenants’) motion to dismiss. Upon consideration of the parties’ arguments and submissions, the court rules and orders as follows:

1. On or around April 1, 2003, the parties entered into a written lease for rental of the subject premises. The defendants (tenants) are participants in the Housing Choice Voucher Program, commonly referred to as the Section 8 program. As such, upon entering into a lease with the tenants, the plaintiff (landlord) was required to and did enter into a Housing Assistance Payments (HAP) Contract with a Public Housing Agency, and a Section 8 Tenancy Addendum (the Addendum) with the tenants. The HAP contract incorporated the Addendum, established the initial lease term as beginning on April 4, 2003, and ending on April 30, 2004, and provided that the language of the Addendum would control in the event of any conflict between it and any other provisions of the lease. The Addendum provided that the landlord could only terminate the tenancy, during the initial lease term or any extension term, for specified grounds.

 

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2. On or around February 19, 2004, the landlord sent the tenants a letter which indicated that it did not intend to renew the lease, and expected the tenants to vacate “on or before” March 31, 2004. This letter did not set forth any grounds for terminating the tenancy. The tenants then wrote to the landlord, requesting a renewal of their lease. The landlord responded on April 5, denying the tenants’ request for lease renewal, and requesting that the tenants vacate on April 30, 2004. The tenants have not vacated, and move to dismiss the landlord’s complaint, arguing that their tenancy was not properly terminated. I agree.

3. The letters upon which the landlord relies do not comport with the requirements of the Addendum. The first letter attempted to terminate the tenancy before the expiration of the initial lease term, but did not allege grounds. The second letter also did not allege grounds. In addition, it did not clearly indicate a termination of the tenancy and, to the extent it sought to do so, failed to provide a full rental period notice. The letters did not

comply with the requirements of the Addendum, and the tenants are therefore correct that their tenancy has not been terminated properly.

1. Ruling and Order: For the foregoing reasons, the tenants’ motion to dismiss is allowed.

 

So entered this 28th day of September, 2004.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

ROBERT DRUCKER, Plaintiff v. HEATHER AUSTIN, Defendant

 

WESTERN DIVISION

 

Docket # 04-SP-02899F

/

SOUTHERN BERKSHIRE DIVISION[1]

04-SU-019

Parties: ROBERT DRUCKER, Plaintiff v. HEATHER AUSTIN, Defendant

Judge: /s/ Dina E. Fein

Associate Justice

Date: October 7, 2004

MEMORANDUM OF RULINGS AND DECISION ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

 

The above-captioned matter came before the court for hearing on September 15, 2004, on the plaintiff’s (landlord’s) motion for summary judgment. Upon consideration of the parties’ arguments and submissions, the court rules and orders as follows:

1. Material Facts: Effective June 15, 1998, the parties entered into a written lease for rental of the commercial space located at 287/289 Main Street, Great Barrington (the premises). The initial lease term was for six years, and provided in pertinent part as follows with respect to additional terms:

 

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[1] This case was originally filed in the District Court Department, and was transferred to the Housing Court Department by the defendant, pursuant to G.L. c. 185C, s.20. The Housing Court Department does not have subject matter jurisdiction to hear the case, however, which involves a commercial lease and eviction. As such, the court offered, and the parties agreed, that the undersigned will preside over the case as a District Court judge, pursuant to this court’s cross-designation with the District Court, for cases in Berkshire County. Hence, the two captions and docket numbers.

 

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Tenant shall have the option to extend this Lease for a period of six Lease Years after the expiration of the Initial Term (the “First Additional Term”). The First Additional Term shall take effect upon notice from Tenant to Landlord no less than six months prior to the

expiration of the Initial Term…

 

2. The lease between the parties also provided as follows with respect to “notice:” “Any notice, approval, consent, or other communication under this Lease shall be in writing…”

 

3. From the inception of the tenancy until approximately January, 2004, the defendant (tenant) operated a restaurant at the subject premises. The defendant (tenant) did not provide the landlord with written notice, at least six months prior to the expiration of the initial lease term, that she was exercising her right to extend the lease. The parties dispute, however, whether the tenant provided the landlord with oral notice of her intention to extend the lease. The tenant avers the following facts which are material to the pending motion: that she did provide oral notice of her intention to extend the lease; that she provided oral notice to the landlord’s sons, who operated a retail business in the space adjacent to her restaurant, and with whom she routinely transacted on behalf of the landlord; that the landlord’s sons informed her that written notice of her intention to extend the lease was not necessary; that, after receiving oral notice of her intention to extend the lease, the landlords’ sons indicated to the tenant that they would be willing to “break the lease” with her; and that, after providing the landlord’s sons with notice of her intention to extend the lease, the tenant changed the cuisine of her restaurant, from sushi to southwestern, and marketed her restaurant business for sale.

 

4. The tenant also asserts, and the record before the court does not dispute, that the tenant made her monthly rental payments to the landlord’s sons, payable to their business, and routinely dealt with them on issues which arose in the tenancy, including utility services and repairs.

 

5. In or around April, 2004, the landlord’s sons informed the tenant that her lease was not

 

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extended. Thereafter, the tenant withheld rent for the duration of the initial lease term.[2] On June 18, 2004, the landlord served upon the tenant a summary process complaint, alleging “you have no right to occupy the premises; expiration of lease.” The landlord now moves for summary judgment, arguing that because the initial lease term has expired and the tenant did not request an extension of the lease term in writing, he is entitled to judgment as a matter of law.

6. Summary Judgment Standard. Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Mass.R.Civ.P. 56(c). See also, Cassesso v. Commissioner of Correction, 390 Mass. 419, 422, 456 N.E.2d 1123

(1983); Community Nat’l Bank v. Dawes, 369 Mass. 550, 553, 340 N.E.2d 877 (1976). The moving party bears the burden of establishing the absence of a triable issue, and entitlement to judgment as a matter of law, based on the summary judgment record. Pederson v. Time, Inc., 404 Mass. 14, 16-17, 532 N.E.2d 1211 (1989). “If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact …” Id, 404 Mass. at 17. In ruling on a motion for summary judgment, the court views all facts and inferences reasonably drawn therefrom in the light most favorable to the nonmoving party. Bisson v. Eck, 430 Mass. 406, 407, 720 N.E.2d 784 (1990); Gray v. Giroux, 49 Mass.App.Ct. 436, 437, 730 N.E.2d 338 (2000).

7. Waiver: A party to a written contract may waive a right he is entitled to under the contract. Martinello v. Bamel. 255 Mass. 25 (1926). Drawing all inferences in favor of the

 

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[2] Counsel for the tenant indicated at hearing, and it is not contested, that the rent for the balance of the initial lease term is held in his client escrow account.

 

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tenant, as the court must at this stage in the proceedings, the record establishes a genuine dispute as to whether the landlord waived the contractual provision requiring written notice of the tenant’s intention to extend the lease term. Specifically, the tenant’s affidavit indicates that she

– informed Peter and/or Richard Drucker, the landlord’s sons, on several occasions during the fall of 2003 that she intended to extend the lease; and that she had a specific conversation with Richard Drucker, more than six months before the expiration of the initial lease term, in which Mr. Drucker said that she did not have to provide written notice of the lease extension “as long as

– they and his father knew my plans.” These allegations, assuming the sons were authorized to act on behalf of their father (see below), are sufficient to create a genuine dispute as to whether the landlord waived his right to written notice under the lease.

8. Agency: The assertions of the tenant’s affidavit suffice to create at least a question of

– whether the landlord’s sons had apparent, if not express, authority to act on behalf of their father, as his agents. A genuine dispute therefore exists as to whether the lease requirement of written notice was waived by someone with authority to do so.

9. Ruling and Order: For the foregoing reasons, the plaintiff s motion for summary judgment is denied. The Clerk’s Office is requested to schedule this matter for pretrial conference.

So entered this 7th day of October, 2004.

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

ROBERT S. DRUCKER, Plaintiff v. HEATHER AUSTIN, Defendant

 

WESTERN DIVISION

 

Docket # 04-SP-02899

Parties: ROBERT S. DRUCKER, Plaintiff v. HEATHER AUSTIN, Defendant

Judge: /s/ Dina E. Fein

Associate Justice

Date: November 18, 2005

RULING AND ORDER ON PARTIES’ CROSS MOTIONS FOR RELEASE OF FUNDS

 

The above-captioned matter came before the court on November 16, 2005, for hearing on the parties’ cross motions for enforcement of their agreement for judgment. Upon consideration of the parties’ arguments and submissions, the following order shall enter:

1. This matter is before the court for resolution of a second dispute concerning compliance with the parties’ agreement for judgment (“agreement”). By order dated October 5, 2005, the court (Abrashkin, J.) ruled that the defendant (“tenant”) had not removed permanent fixtures in violation of the agreement, and was therefore entitled to funds held in escrow. The parties’ dispute now centers on whether the tenant left the premises “broom clean,” thereby triggering the plaintiff’s (“landlord’s”) obligation to return the $800 security deposit.

2. At the outset, it should be noted that the facts upon which the landlord relied in opposing the tenant’s request for release of the funds were all known at the time of the hearing leading to the court’s October 5 order. The order itself referenced the paragraph of the agreement which required the tenant to leave the premises in broom clean condition. As the dispute now before

 

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the court – whether the premises were left in “broom clean” condition – was generally at issue and could have been litigated in the earlier hearing, principles of issue preclusion may well estop the landlord from denying the tenant’s right to return of the security deposit. Given my ruling on the merits of the dispute, however, I need not and therefore do not reach the question of whether the landlord’s argument has been waived.

3. The landlord argues that he is not liable to return the security deposit for two reasons: because the tenant left the premises in bad condition; and because he incurred expenses which were the tenant’s obligation to pay under the lease. As to the latter, the obligations which arose under the parties’ lease have been superceded and expressly waived by terms of their agreement for judgment, and these is no suggestion that the tenant failed to make payments due under the agreement. As to the former argument, the only evidence offered by the landlord, the photographs, does not establish that the premises were not “broom clean” when the tenant vacated.

4. Order: Based upon the foregoing, the defendant’s motion to enforce the judgment is allowed, and the landlord’s cross-motion is denied. The landlord is ordered to pay the $800 security deposit

to the tenant within 14 days of the date of this order.

 

So entered this 18th day of November, 2005.

 

 

 

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End Of Decision

 

HOUSING COURT

MARY HUNTLEY, Plaintiff/Defendant-In-Counterclaim vs. FRANCES DIPASQUALE, Defendant/Plaintiff-In-Counterclaim

 

WESTERN DIVISION

 

Docket # 04-SP-03022

Parties: MARY HUNTLEY, Plaintiff/Defendant-In-Counterclaim vs. FRANCES DIPASQUALE, Defendant/Plaintiff-In-Counterclaim

Judge: /s/ Dina E. Fein

Justice of the Housing Court

Date: October 26, 2004

ORDER OF THE COURT ON DEFENDANT-IN-COUNTERCLAIM’S MOTION IN LIMINE TO PRECLUDE EVIDENCE AND TESTIMONY REGARDING LEAD PAINT

 

On October 19, 2004, this Court heard arguments on the motion of defendant-in-counterclaim to preclude the plaintiff-in-counterclaim from introducing evidence and testimony regarding lead paint at trial on the above-referenced case. Having considered the arguments of counsel, this Court rules as follows:

1. Plaintiff-in-counterclaim is barred from introducing any evidence relating to personal injuries, including emotional distress, arising out of the alleged presence of lead at 54-56 Kensington Street in Springfield.

2. The Court reserves until trial the issue of whether the plaintiff-incounterclaim may introduce evidence of the alleged presence of lead at 54-56 Kensignton Street in the context of non-personal injury related claims, including breach of warranty, of habitability and related claims.

 

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3. The plaintiff-in-counterclaim’s right to present evidence of personal injuries arising out of alleged lead contamination at 54-56 Kensington Street in a separate action is preserved.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

TCB AT LEYDEN WOODS, Plaintiff v. JANA SCANLON, Defendant

 

WESTERN DIVISION

 

Docket # 04-SP-02298

Parties: TCB AT LEYDEN WOODS, Plaintiff v. JANA SCANLON, Defendant

Judge: /s/ Dina E. Fein

Associate Justice

Date: June 25, 2004

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned summary process (eviction) case came before the court for trial on June 25, 2004, after which the following findings of fact and rulings of law are to enter, as provided for under Mass. R. Civ. P. 52(a):

 

1. The plaintiff (landlord) owns and/or manages the residential unit located a 10 Lilac Court, Greenfield (the premises), which it rented to the defendant (tenant) pursuant to a written lease agreement. This tenancy includes a project-based s.8 subsidy, and the tenant is required periodically to recertify her rent. Pursuant to a series of notices beginning in January, 2004, the tenant was informed of her obligation to recertify her rent, and was further informed that she would lose her subsidy and be in violation of her lease if she failed to recertify. The tenant in fact failed to recertify and, on or around May 7, 2004, the

landlord served her with a notice terminating her tenancy. Upon the loss of her subsidy, the tenant became obligated to pay the fair market rent for the premises, or $687 per month. Rent totaling $1,374 is unpaid through June, 2004.

 

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2. The tenant has committed at least one of the lease violations alleged in the notice terminating her tenancy, namely that arising out of her failure to recertify her income. The landlord is therefore entitled to a judgment in its favor, for possession and $1,374. I find, however, that there is at least one individual in the tenant’s household (the tenant’s son) who is disabled. I am therefore extending a reasonable accommodation to the tenant, in the form of a stay on the issuance of the execution, conditioned upon the tenant’s compliance with the terms of this order.

3. The tenant is ordered forthwith to take all steps necessary to recertify her rent. In addition, the tenant shall pay the sum of $1,374, representing rent due through June, on or before July 1, 2004. The tenant is also ordered to meet with the landlord’s tenant services coordinator, Diane Sargeant, for the purpose of assessing whether services might be available to assist the tenant’s household in complying with the lease. Finally, both parties are ordered to appear for further hearing on 1 at which time the court will assess compliance with this order, and determine whether different or additional conditions should be put in place in order to further extend the issuance and use of an execution.

So entered this 25th day of June, 2004.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

TCB AT LEYDEN WOODS, Plaintiff v. LORI BOURBEAU, Defendant

 

WESTERN DIVISION

 

Docket # 04-SP-02299

Parties: TCB AT LEYDEN WOODS, Plaintiff v. LORI BOURBEAU, Defendant

Judge: /s/ Dina E. Fein

Associate Justice

Date: June 25, 2004

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned summary process (eviction) case came before the court for trial on June 25, 2004, after which the following findings of fact and rulings of law are to enter, as provided for under Mass. R. Civ. P. 52(a):

 

1. The plaintiff (landlord) owns and/or manages the residential unit located a 58 Bayberry Court, Greenfield (the premises), which it rented to the defendant (tenant) pursuant to a written lease agreement. The contract rent for the premises was $759 for April, 2004, and $789 per month for May and June, 2004. Rent totaling $2337 is unpaid through June, 2004. On or around May

12, 2004 the landlord served and the tenant received a 14 day notice, terminating the tenancy for nonpayment of rent.

2. In defense and counterclaim to the landlord’s case, the tenant argues that her rent should be abated due to a problem with one of the windows in one of the bedrooms. Specifically, one of the windows in the subject 3 bedroom, 2 bath unit developed a bad leak in March, 2004, which the tenant reported to the landlord on or around April 1, 2004. The landlord’s maintenance staff made several trips to the premises, prior to completing an effective repair of the defect on or around May 24, 2004. Until the condition was repaired, molding was removed from the window, and the tenant used a large plastic basin to catch leaking water.

3. The tenant’s allegations regarding conditions at the premises constitute a claim for breach of the implied warranty of habitability, for which the landlord is strictly liable. Berman & Sons v. Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979). It is usually impossible to fix damages for breach of the implied warranty with mathematical certainty, and the law does not require absolute certainty, but rather permits the courts to use approximate dollar figures so long as those figures are reasonably grounded in the evidence admitted at trial. Young v. Patukonis, 24 Mass.App.Ct. 907, 506 N.E.2d 1164 (1987). The measure of damages for breach of the implied warranty of habitability is the difference between the value of the premises as warranted, and the value in their actual condition. Haddad v. Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991).

4. I find that the fair rental value of the premises was reduced by 25% for the months of April and May, 2004, as a result of the leaking window. The tenant’s damages for the landlord’s breach of the warranty of habitability are therefore $759 x 25% + $789 x 25% = $387.

5. Order: Based upon the foregoing, and as provided for under G.L. c. 239, s.8A, the tenant shall have 10 days from the entry date of this order to deposit with the Clerk’s office of this court (in Springfield) the sum of $2337 (landlord’s rent claim)- $387 (tenant’s damages) = $1,950. If she does so, judgment for possession shall enter in favor of the tenant, and the sum shall be released immediately upon request to the landlord. If the

tenant fails to make the deposit, judgment for possession of $1,950 shall enter in favor of the landlord at the expiration of the 10 day period.

So entered this 25th day of June, 2004.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

OLDE HOLYOKE DEVELOPMENT. CORP., v. EMILY BADGER and=CARL OS SANCHEZ

 

WESTERN DIVISION

 

Docket # DOCKET NO. 04SP2328F

Parties: OLDE HOLYOKE DEVELOPMENT. CORP., v. EMILY BADGER and=CARL OS SANCHEZ

Judge: /s/DINA E. FEIN, Associate Justice

Date: July 2, 2004

ORDER

 

After hearing on July 1, 2004, at which both parties were present, the following order is to enter:

 

1. Judgment is to enter for the plaintiff (landlord) for possession plus court costs.

 

2. There is to be a stay on the issuance of the execution (eviction order) for 30 days conditioned upon the defendants (tenants) restraining their dogs at all times by keeping them inside their apartment or muzzled and leashed when in common areas. If, at the expiration of the stay period, the tenants have removed their dogs, they will be permitted to remain at the premises. If not, the execution will issue at the review hearing.

 

3. All parties are to appear in court July 29, 2004 at 9:00 A.M. for further review.

 

So entered this 2nd day of July, 2004.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

Liberty Crossing v. Steven Perron,

 

 

Western Division

 

Docket # No. 04SP02393

Parties: Liberty Crossing v. Steven Perron,

Judge: /s/Dina E. Fein Associate Justice

Date: April 26, 2005

ORDER

 

The above-captioned matter came before the court for hearing on April 21, 2005 and April 26, 2005, at which time both parties appeared and after which the following order shall enter:

 

1. I find that Mr. Perron has violated previous orders of the court which were issued as reasonable accommodations of his disability. Specifically, Mr. Perron has failed to participate in a drug counseling program, and has had interactions with staff at the YMCA after being instructed not to.

 

2. Mr. Perron is ordered to vacate the premises at Liberty Crossing forthwith. The landlord is permitted to change the locks to Mr. Perron’s room. The landlord is ordered to allow Mr. Perron access to the premises in order to retrieve personal belongings, as long as he is accompanied by Janet Mock of the Tenancy Preservation Program, or someone designated by Ms. Mock. Mr. Perron is ordered to remain away from Liberty Crossing

 

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and the YMCA except in the company of Ms. Mock or her designee, pending further order of the court.

 

3. Mr. Perron is referred to Western Massachusetts Legal Services, which program is requested to evaluate whether he is eligible for its legal assistance.

 

4. The Tenancy Preservation Program is requested to evaluate whether Mr. Perron is eligible for services which he is not currently receiving, and which might be of assistance in restoring his right to reside at Liberty Crossing, or transitioning to more appropriate housing. These services may include, but are not limited to, those available through CHIP, the VA, and the Department of Mental Health.

 

5. This matter is scheduled for further hearing on Tuesday, May 3, 2005 at 9:00 a.m.

 

So entered this 26th day of April, 2005.

 

 

 

cc: Michael Doherty, Assistant Chief Housing Specialist

Tenancy Preservation Program

Western Massachusetts Legal Services.

 

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End Of Decision

 

HOUSING COURT

WHEEL ESTATES MHC, LLC v. LAURIE MILLE and LAWRENCE MILLE

 

WESTERN DIVISION

 

Docket # DOCKET NO. 04-SP-03330

Parties: WHEEL ESTATES MHC, LLC v. LAURIE MILLE and LAWRENCE MILLE

Judge: /s/Dina E. Fein Associate Justice

Date: September 16, 2004

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned summary process (eviction) case came before the court for trial on September 15, 2004, after which the following findings of fact and rulings of law are to enter, as provided for under Mass. R. Civ. P. 52(a):

 

1. The plaintiff (landlord) mobile home park rents a lot to the defendants (tenants). On or around July 3, 2004 the landlord served and the tenants received a notice terminating the tenancy based on enumerated grounds. At times relevant hereto, the tenants have maintained their mobile home in a manner which violates the State Sanitary Code, specifically by having too many occupants giving rise to an overcrowding situation, and by failing properly to dispose of trash.

 

2. Judgment for possession shall enter in favor of the landlord. There shall be a stay on the issuance of the execution (eviction order), conditioned upon the tenants complying with the terms of this order, as follows:

 

3. The tenants are prohibited from having individuals beyond themselves and Ms. Mille’s

 

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grandmother residing at the premises. Mr. Mille’s friend is ordered to vacate by the end of the business day on Friday, September 17, 2004.

 

4. By Monday, September 20, 2004, the tenants shall have in place sufficient trash barrels in good repair so as to contain all of their household trash at all times. The trash barrels must have lids that seal.

 

5. The tenants and the property managers, Mr. and Ms. Puricelli, are ordered not to have any direct contact with one another, except in the event of a bona fide emergency. All non emergency contact is to be in writing.

 

6. The case shall remain open for six months. In the absence of a request by either party for additional relief, the case shall be dismissed and the tenancy reinstated at the expiration of the six month period.

 

So entered this 16th day of September, 2004.

 

 

 

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End Of Decision

 

HOUSING COURT

WHEEL ESTATES MHC, LLC v. MARK and MARCIA BROWN

 

WESTERN DIVISION

 

Docket # DOCKET NO. 04-SP-03342

Parties: WHEEL ESTATES MHC, LLC v. MARK and MARCIA BROWN

Judge: /s/Dina E. Fein Associate Justice

Date: November 5, 2004

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned summary process (eviction) case came before the court for trial on October 13 and 27, 2004, after which the following findings of facts and rulings of law are to enter, as provided for under Mass. R. Civ. P. 52(a):

 

1. Findings of Fact: The plaintiff (“landlord,”) operates a mobile home park (“Wheel Estates,” “the park”) in North Adams. The defendants (“tenants”) own a 5 bedroom mobile home, which is located on a lot they rent at 4 Cherokee Drive , Wheel Estates, and where they live with four of their five children, ranging from 13 to 20 years of age. The tenants’ home does not have wheels, and is not “mobile” in a practical sense.

 

2. There are a set of rules which purport to “govern the homeowners/residents’ occupancy and use of the homesite and common areas in the community.” The rules provide in pertinent part as follows at p. 24 (b): “Privacy, Use and Quiet enjoyment: Residents and their guests shall

 

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not interfere with the other residents’ privacy, use, and quiet enjoyment of their homes or home sites at any time.” The rules also address use of the pool and clubhouse facilities.

 

4. On numerous occasions throughout the spring and summer of 2004, the tenants’ daughters Erica and Melissa caused substantial disturbances at the park. These disturbances included disruptive behavior at the park pool and in other common areas, trespassing in the yards of other park residents, damaging the property of other park residents, and directing profane and vulgar language towards other residents and park employees.

 

5. On several occasions during the spring of 2004, the former property manager at the park, Cecilia Marshall, or the current property manager, Kim Puricelli, contacted the tenants to discuss concerns about their daughters’ behavior. These contacts included a meeting on June 30, 2004 among the tenants, their daughters, Ms. Puricelli, and Ms. Marshall. There is a history of tension between the Puricelli and Brown families, dating back to a time before Ms. Puricelli became the property manager at the park.

 

6. On or around July 3, 2004, the landlord sent the tenants a notice to quit, alleging violations of the community rules. Specifically, the notice to quit alleged the following:

 

Tenant disturbances with your daughters Melissa and Erica Brown. We have received numerous written and verbal complaints about Erica and Melissa; shoveling driveways and demanding money for their unrequested services, constant swearing at residents, life guard and management, removed from pool area for not complying with the pool rules, trespassing through the yards of tenants, removing and/or breaking items in tenants (sic) yard, littering in the tenants (sic) yard and on common

grounds, destruction of community property, etc. These complaints date back to 1998 to current date.

 

The notice also informed the tenants that they had the right to prevent termination of their tenancy by correcting all of the alleged lease violations within 15 days.

 

7. Following receipt by the tenants of the notice to quit, the girls’ behavior improved

 

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briefly. By mid-August, however, the disturbances and disruptions started up again, including more incidents at the pool, and extremely offensive language and behavior directed at others in the park.

 

8. On August 20, 2004, the landlord served the summons and complaint in this action, which was timely entered thereafter.

 

9. Rulings of Law: The landlord has established substantial violations of the park rules by members of the tenants’ household. The landlord provided the tenants with notice of the violations, and an opportunity to cure the violations, as required under G.L. c. 140, s.32J and 940 CMR 10.08. Judgment for possession shall therefore enter in favor of the plaintiff.

 

10. There shall, however, be a stay on the issuance of the execution, based on the oft cited principle that Massachusetts “does not favor a forfeiture” of a lease. Howard D. Johnson Co. v. Madigan, 361 Mass. 454, 456-59 (1972); Eno Systems, Inc. v. Eno, 311 Mass. 334, 338 (1942); Lundin v. Schoeffel, 167 Mass. 465, 469-70 (1897). This is particularly true where, as here, the lease violation is attributable not to the tenants themselves, but rather to member of their household; where the lease violation is ultimately susceptible of cure, which the court concludes is likely here; where the history of tension between the Brown and Puricelli families has likely intensified the consequences of the tenants’ violations; and the forfeiture would necessarily include not just the leasehold interest (the mobile home lot), but also personal property (the mobile home itself).[1]

 

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[1] There is also an indication in the record that one or both of the tenants’ daughters suffers from learning and/or behavior difficulties, which may very well rise to the level of disabilities requiring reasonable accommodation. The court need not address this question at present, although it may be necessary to do so in determining further conditions, if any, to stay issuance or use of an execution.

 

 

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11. The stay on the issuance of the execution is conditioned upon the tenants and the members of their household not violating the park rules, or disturbing the quiet enjoyment of other park residents. The Clerk’s office is requested to schedule this matter for further hearing, at which time the court will hear argument from the parties as to whether to impose more specific conditions of a stay.

 

So entered this 5th day of November, 2004.

 

 

 

cc: Karen Ann Huntoon, Esq.

Assistant Clerk Magistrate

 

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End Of Decision

 

HOUSING COURT

Wheel Estates MCH, LLC v. Mark Brown, et al.

 

Western Division

 

Docket #

Parties: Wheel Estates MCH, LLC v. Mark Brown, et al.

Judge: /s/Dina E. Fein

Date: February 1, 2005

ORDER FOR STAY OF EXECUTION

 

Judgment for the Plaintiff for possession was entered on November 10, 2004. Issuance of~4 an Execution is stayed upon the following terms and conditions:

 

1. Tenants shall pay the monthly lot rent on or before the first of each month in advance.

 

2. Tenants, all family members and their visitors, while in the Park shall abide by all Park Rules at all times.

 

3. Melissa and Erica Brown are to remain on their parents’ lot, except for going to and coming home from school.

 

4. Melissa and Erica Brown are to remain in their parents’ mobile home if neither parent is home.

 

5. No member of the tenants’ family shall cause any disturbance to other tenants, their guests, management or employees, including, but not limited to:

 

a. Damaging or throwing things at or upon mobile homes, other structures, or personal property (including plantings);

 

b. Swearing or otherwise using offensive or abusive language or gestures, or

 

 

Page 1 of 2

 

 

c. Trespassing upon the lots of other tenants;

 

d. Inviting or accepting as a guest the following persons: Amanda Bosley,Jessica Marino, Kirsten , Josh Blake;

 

e. Soliciting work or contributions from other persons within the Park;

 

f. Communicating with the Park managers other than in writing, except in the case of a bona fide emergency;

 

g. Engaging in any other activity or conduct disruptive of other tenants’ quiet enjoyment.

 

6. The Court shall retain jurisdiction until a date to be determined.

 

7. Management shall communicate with the Defendants by either calling parents at work (Marcia Brown 413-664-5160, Mark Brown 413-663-3701 ext. 5300) and/or by written letter with a courtesy copy to Attorney Stephen N. Pagnotta, Donovan & O’Connor, LLP, 1330 Mass MOCA Way, North Adams, MA 01247.

 

8. There shall be no contact between the Defendants (and their family members) and the trial witnesses, except for bona fide emergency communication with the Park

 

9. The tenants shall pay to the Plaintiff the sum of $228.94 in court costs.

 

So entered this 1st day of February, 2005.

 

 

 

 

Page 2 of 2

 

 

 

End Of Decision

 

HOUSING COURT

BART and JENNIFER CIOCCIA v. CARLA RACINE,

 

WESTERN DIVISION

 

Docket # DOCKET NO. 04-SP-03390

Parties: BART and JENNIFER CIOCCIA v. CARLA RACINE,

Judge: /s/Dina E. Fein

Associate Justice

Date: September 24, 2004

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned summary process (eviction) case came before the court for trial on September 13, 2004, at which time all parties appeared. The following findings of fact and rulings of law are to enter, as provided for under Mass. R. Civ. P. 52(a):

 

1. Findings of Fact: The plaintiffs (landlords) own the property located and 1 High Street, Haydenville, which they purchased on June 30, 2004. The property is comprised of a single family home, and an adjoining 2 bedroom apartment (1A High Street). Effective January, 2004, prior to the landlords having acquired the property, the tenant rented the apartment, which she has occupied since with her young daughter.

 

2. In early May, 2004, the landlords began communicating with the tenant (with whom they were previously acquainted) about their intention to purchase the property. The tenant cooperated with the Cioccias when they sought to inspect the premises, and during their negotiations with the previous owner. In mid-May, the Cioccias indicated to the tenant that they intended for her to vacate one of the two bedrooms in the apartment, when they became the owners. On or around May 26, 2004, prior to finalizing their purchase of the

 

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subject property, the landlords wrote to the tenant, informing her that they would be lowering her rent, and reiterating that she would be required to vacate one of the two bedrooms. Attached to the landlords’ May 26 letter was a set of written “rental guidelines,” which purported to effectuate these changes to the tenancy, and indicated, among other terms, that the tenant was not to enter the main house “unannounced.” The guidelines also restricted the tenant’s parking rights. The guidelines were subsequently appended to a proposed “residential rental agreement,” which was forwarded to the tenant before the landlords closed on the property.

 

3. The tenant did not agree to the new tenancy terms. In particular, the tenant was unwilling to surrender one of the bedrooms. On June 30, 2004, just after closing on their purchase, the landlords served and the tenant received a rental period notice terminating the tenancy without cause.

 

4. On July 1, 2004 the tenant spoke with Bart Cioccia and indicated that she would be available on July 2nd or Yd to discuss issues related to the tenancy. The landlords did not contact the tenant on either of these days. On July 4, 2004, Ms. Cioccia came to the tenant’s apartment without prearrangement. The tenant was at home with her daughter, preparing to leave for a holiday outing. Ms. Cioccia entered the tenant’s apartment, and inquired, in front of the tenant’s daughter, about rent for July. The tenant asked Ms. Cioccia several times to leave the apartment. Ms. Cioccia did not leave. The tenant called the police, twice, in front of Ms. Cioccia. When Ms. Cioccia failed to leave the apartment after

repeated requests, and two phone calls to the police, the tenant told her “to go fuck herself.”

 

5. Prior to the events at issue herein, the tenant’s young daughter has attended a Montessori

 

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school, where Ms. Cioccia was her teacher. The tenant perceived that the events of July 4 were very distressing to her daughter, before whom they had unfolded. The tenant therefore relocated her daughter to the homes of family and friends for several weeks after July 4.

 

6. On or around July 9, 2004, the tenant delivered a letter to the landlords, in which she indicated that she would be withholding July’s rent until such time as screens were installed on 9 windows. On or around July 15, the landlords purchased 5 screens, which they left for the tenant at the bottom of her stairs. The landlords did not install the screens, nor did they provide screens for the remaining 4 windows.

 

7. On August 2, the tenant’s daughter returned to the apartment after her extended stay away, and the tenant hosted a pot luck supper for a group of approximately 5 children, and their parents. The children played outside until dark, while the adults talked and played cribbage inside and on the second floor porch. While the children were playing in the shared yard, the tenant’s daughter tripped over a stake in the ground which secured the landlord’s badminton net. Ms. Cioccia chastised the tenant’s daughter, and said “this is my house – the whole house.” The landlords contacted the police and complained about noise from the gathering. The police arrived at approximately 10:35 p.m.

 

8. Since August 2, 2004, the tenant and her daughter have stayed at the apartment only infrequently. On September 10, 2004, the tenant arrived home to the apartment, and discovered that a piece of the ceiling had fallen down, scattering plaster throughout the premises. The tenant called a friend, Michael Ruffino, for assistance in dealing with the mess. Mr. Ruffino came to the apartment, observed that a light fixture was detached from the ceiling and that there was moisture in the area, and suggested that the tenant contact

 

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the Fire Department, on a non-emergency basis, which she did. In response to the tenant’s call, several emergency vehicles and related personnel came to the property. The landlords were aware that the tenant had previously resided in a building which had been destroyed by fire some time after she vacated. Upon seeing the emergency vehicles at their property on

September 10, the landlords became very distressed, fearing damage to their property. Mr. Cioccia spoke with various of the emergency personnel at the scene, making comments which included the term “arson,” and implying that the tenant was responsible for the fire at her former residence. As of September 13, 2004, the ceiling in the tenant’s apartment had not been repaired.

 

9. Rent totaling $2,250, at the rate of $750 per month[1], is unpaid through September, 2004.

 

10. Rulings of Law: The landlords have established the prima facie elements of their case. The outcome of the case turns, therefore, on the tenant’s defenses and counterclaims which, in essence, allege breach of the warranty of habitability and interference with quiet enjoyment. The court will address each of these claims in turn.

 

11. Warranty of Habitability: “A tenancy at will of property occupied for dwelling purposes shall not be terminated by operation of law by the conveyance, transfer or leasing of the premises by the owner or landlord thereof.” G.L. c. 186, s.13. The significance of the cited statute to this case is that the landlords herein inherited the preexisting tenancy, and all the terms thereof, when they acquired ownership of the premises. Although the landlords testified, in effect, that they never intended to be landlords, this testimony was belied by correspondence to the tenant and, more importantly, their intention is irrelevant;

 

 

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[1] Although Mr. Cioccia indicated that the rent was going to be reduced, the parties never reached terms for a new tenancy. The terms of the original tenancy, including the previously agreed-upon rental rate, therefore survived the transfer of ownership to the Cioccias.

 

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when the landlords acquired a residential property which housed a tenant, they became landlords, as a matter of law, and impliedly warranted that the premises were free of defect. Boston Housing Authority v. Hemingway, 363 Mass. 184, 293 N.E. 2d 831 (1973).

 

12. In fact, the premises were not free of defect at the inception of the tenancy. Rather, there were nine windows without screens in the tenant’s unit. Window screens are required under the State Sanitary Code, and the absence of screens constituted a breach of the landlords’ implied warranty of habitability, for which the landlords are strictly liable. Berman & Sons v. Jefferson, 379 Mass. 196, 396 N.E.2d 981

(1979).

 

13. It is usually impossible to fix damages for breach of the implied warranty with mathematical certainty, and the law does not require absolute certainty, but rather permits the courts to use approximate dollar figures so long as those figures are reasonably grounded in the evidence admitted at trial. Young v. Patukonis, 24 Mass.App.Ct. 907, 506 N.E.2d 1164 (1987). The measure of damages for breach of the implied warranty of habitability is the difference between the value of the premises as warranted, and the value in their actual condition. Haddad v. Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991).

 

14. When the landlords did address the missing screens, they did not do so completely or properly. They only provided five screens, and did not install the screens, as was their responsibility. Given the incomplete response by the landlords, and the fact that these events occurred during the height of the summer, I find that the fair rental value of the premises was reduced by 10% for the months of July, August, and September. The tenant’s damages for the landlords’ breach of the warranty of habitability are therefore

 

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$750 (contract rent) x 10% = $75 x three months = $225.

 

15. Interference With Quiet enjoyment: A landlord is liable for breach of the covenant of quiet enjoyment if his acts or omissions cause a serious interference with the tenancy, or substantially impair the character and value of the premises. G.L. c. 186, s. 14; Simon v. Solomon, 385 Mass. 91, 102, 431 N.E.2d 556, 565 (1982). “In analyzing whether there is a breach of the covenant, [the court] examine[s] the landlord’s conduct, and not his intentions.” Doe v. New Bedford Housing Authority, 417 Mass. 273, 285, 630 N.E. 2d 248, (1994). A landlord may not intend to violate a tenant’s right to quiet enjoyment, but may nevertheless do so when the interference is a “natural and probable consequence of what the landlord did, what he failed to do, or what he permitted to be done.” Blackett v. Olanoff, 371 Mass. 714, 716 (1977).

 

16. When measured against the legal standard articulated above, it is clear to me that the landlords’ conduct herein did interfere with the tenant’s right to quiet enjoyment. Even before the landlords acquired the property, they approached the tenant in a manner which was entirely disrespectful of her vested rights. Notwithstanding that the tenant had rented, paid for, and was living in a two bedroom apartment, the landlords informed her by letter dated May 26 that they would “require” that she remove her possessions from one of the bedrooms by July 1. This directive involved more than requiring the tenant to surrender storage space; it purported

to divest her of one of only two bedrooms in the premises, significantly impairing the value to her of the premises. Although not giving rise directly to liability for interference with quiet enjoyment, as this communication occurred before the plaintiffs owned the property and was not implemented when they did assume ownership, it nevertheless informs that which followed.

 

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17. After the landlords assumed ownership, and immediately terminated the tenancy, a series of incidents took place which, collectively and against the back drop of the May 26 communication, did in fact significantly impair the value of the premises to the tenant. These included Ms. Cioccia’s coming to the tenant’s apartment on July 4 without an appointment and refusing to leave when asked to do so; the failure of the Cioccias to discharge fully their responsibility to install window screens; the Cioccias interactions with the tenant’s daughter and her friends on the evening of August 2 and, in my view based upon my assessment of the testimony and the demeanor of the witnesses, unjustified complaint to the police about noise from that gathering; and Dr. Cioccia’s comments to emergency personnel implying that the tenant had caused damage to his or other property. These incidents caused significant distress in the tenant, to the point that both she and her daughter have spent considerable time away from the premises since early July. While I do not conclude that the landlords intended this specific response by the tenant, nor necessarily the level of distress she experienced, there is no question that the landlords’ behavior naturally, probably, and predictably rendered the premises significantly less comfortable and habitable to the tenant, and thereby interfered with her quiet enjoyment.

 

18. The landlords have attempted to portray the tenant as uncooperative and contentious in her dealings with them. They seek to support this characterization with an audiotape of a phone message the tenant left for them after receiving a letter from their lawyer dated July 9, 2004, which offered payment of $1,250 in exchange for the tenant vacating by July 31. I do not draw the inference from the tape which the landlords have advanced. The tape includes a comment by the tenant, taking issue with the characterization that she

 

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told Ms. Cioccia to “go fuck herself’ without provocation, corroborating her testimony, which I credit, that she was in fact provoked by Ms. Cioccia’s refusal to leave her apartment. In addition, the tape has been obviously manipulated, so as to delete portions of the phone message, and emphasize by repetition other portions of the message. While the tenant is

obviously distraught on the message, and insistent of her rights, neither the tone nor the content of the message militates for a different conclusion than that reflected in this decision.

 

19. As a result of the landlords’ interference with her quiet enjoyment, the tenant is entitled to the greater of her consequential damages, or three months rent. G.L. c. 186, s.14. The tenant not having proved consequential damages, she is awarded three months rent, or $2,250.

 

20. I hesitate to conclude this decision without a word intended to moderate its impact. The parties hereto knew each other before finding themselves in a landlord-tenant relationship, and were originally hopeful that theirs would be an amicable relationship. Unfortunately, however, the parties’ respective self-interests quickly diverged. An owner-occupied rental property presents a unique set of challenges, combining as it does a business relationship with a relationship between neighbors, and intensifying any conflicts in either. The need to feel safe and secure in one’s home is universal, irrespective of whether the home in question is temporary or permanent, owned or leased. I am certain that this human need, at some level, has motivated the parties to behave as they have. In advancing their own needs, however, the landlords disregarded the legitimate rights of the tenant. Given the ruling herein, the parties are urged to make every effort to work towards an amicable coexistence in the future.

 

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21. Conclusion and Order for Entry of Judgment: For the foregoing reasons, and as required by G.L. c. 239, s.8A, judgment shall enter for the tenant, for possession and $225 + $2250 = $2,475 (tenant’s damages) – $2,250 (unpaid rent) = $225. At the election of the tenant, this sum may be applied against future rent.

 

So entered this 24th day of September, 2004.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

SCARAFONI ASSOCIATES v. GARRETT CHESTNUT

 

WESTERN DIVISION

 

Docket # DOCKET NO. 04-SP-03496

Parties: SCARAFONI ASSOCIATES v. GARRETT CHESTNUT

Judge: /s/Dina E. Fein Associate Justice

Date: September 30, 2004

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned matter came before the court for trial on September 29, 2004.[1] At the close of the plaintiff’s (landlord’s) case, the court allowed the defendant’s (tenant’s) motion for entry of judgment in his favor. The following findings and rulings shall memorialize and supplement those made from the bench:

 

1. In or around May, 2000, the parties entered into a written lease for the rental of an apartment located at 28 First Street, #2, Pittsfield, where the tenant currently resides. The tenancy is subsidized, with the tenant’s current share of rent being $127 per month.

 

2. On or around June 1, 2004, the landlord served and the tenant received a rental period notice to quit, which stated the following as grounds for terminating the tenancy:

 

 

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[1] The court acknowledges logistical problems that unfortunately have occurred in this case. At the last minute, the case was continued for a week due to the defendant’s hospitalization. The court recognizes and appreciates that the landlord and its attorney accommodated to that continuance without objection at trial. On the day of trial, a miscommunication regarding scheduling delayed my arrival at the court, and the start of trial, by approximately 30 minutes. I apologize to the parties for any inconvenience caused by these occurrences.

 

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The reason we wish to end your tenancy is because you are in violation of your lease Section 13, General Restrictions: Part b; The tenant shall not use the unit for unlawful purposes; engage or permit unlawful activities in the unit, in the common areas, or on the project grounds. Section 23, Termination of tenancy Part b; Criminal Activity; Any drug related criminal activity on or near such premises engaged by a tenant, any member of the tenant’s household, or any guest or other person under the tenant’s control.

 

On June 1, 2004, I received a copy of a police report stating that you sold illegal drugs out of your unit to an undercover Police Officer on April 9, 2004.

 

 

3. The tenant did not vacate the premises, and the landlord initiated this summary process action, which alleged: “[L]ease violations Selling illegal drugs out of unit.” At trial, the sole evidence offered to support the grounds asserted in the notice to quit, and the allegations of the complaint, were certified records of the Superior Court, indicating that the tenant had been indicted by a grand jury on various drug-related charges.[2]

 

4. It is axiomatic that a landlord in a summary process case has the burden of proving the elements of its case, by a preponderance of the evidence. The evidence offered by the landlord in this case does not suffice to carry its burden, as a matter of law. While the legal standard of proof in a civil case is lower than the standard of proof in a criminal case, both are substantially higher than the finding of probable cause sufficient to support an indictment. In the absence of any evidence beyond the bare indictments, the

 

 

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[2] Counsel for the landlord referred to these records as evidence of arraignments, and colloquy between the court and counsel was based on this understanding. It is clear from the face of the documents, however, that they reflect indictments. The difference is not material to the case. An arraignment “consist[s] of the reading of the charges to the defendant and the entry of the defendant’s plea to those charges.” Mass. R. Crim. P.7. An indictment is a written accusation of a crime, presented upon oath by a grand jury. Com. v. Smyth 65 Mass. 473, 11 Cush. 473 (1853). Neither approaches a legal determination sufficient to carry the landlord’s burden of proof.

 

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landlord’s burden has not been met.[3]

 

5. The landlord argued, in the alternative, that the evidence established rent arrears, thereby requiring a judgment for possession in favor of the landlord based upon unpaid rent. Unpaid rent was not among the grounds alleged in the notice to quit, however, precluding a judgment in favor of the landlord under G.L. c. 186, s.11A, as well as under the lease between the parties which provides at paragraph 23(d) as follows: “If an eviction case is initiated, the Landlord agrees to rely only upon those grounds cited in the termination notice required by paragraph (c).”

 

6. It goes without saying that the residents of the subject apartment complex have every right to live in a safe environment, free of drug-related and other criminal activity. The ruling herein should not be interpreted as disrespecting that right. Nor is this ruling intended to cast doubt on the

landlord’s good faith intention to discharge its responsibility to those other tenants. The judgment entered herein is simply required, as a matter of law, by the insufficiency of the evidence offered at trial.

7. Order for Entry of Judgment: The landlord having failed to meet its burden of proof, judgment for possession shall enter for the tenant.

 

So entered this 30th day of September, 2004.

 

 

 

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[3] Had the tenant been convicted of drug-related offenses, he would be barred, by principles of collateral estoppel, from re-litigating in a subsequent civil proceeding issues decided in the criminal prosecution. Aetna Cos. & Sur. Co. v. Niziolek, 395 Mass. 737, 481 N.E.2d 1356 (1985).

 

– 3-

 

 

End Of Decision

 

HOUSING COURT

BARBARA BATES v. AIDA MARRERO

 

WESTERN DIVISION

 

Docket # DOCKET NO.04SP3517-F

Parties: BARBARA BATES v. AIDA MARRERO

Judge: /s/DINA E. FEIN, Associate Justice

Date: September 24, 2004

ORDER

 

After hearing on September 23, 2004, at which both parties were present, the following order is to enter:

 

1. The contract rent for the premises is $475.00. The court finds that rent in the amount of $1,425.00 remains unpaid through September, 2004.

 

2. The court finds that conditions which violate the minimum standards of fitness for human habitation have existed at the premises since the inception of the tenancy in mid-May 2004. These conditions are listed in the view report file in a companion case between the parties, 04CV0374. These conditions have existed since the inception of the tenancy, for 3 months, until mid-August 2004 when the defendant (tenant) unreasonably denied the plaintiff (landlord) access to the premises thus extinguishing her continued right to an abatement. These conditions have reduced the fair rental value of the premises on average by 30%. The total rental abatement is $427.50.

 

3. Under MGL Ch 239, Sec 8A the total rent owed (1,425.99) is to be reduced by the total abatement (427.50) leaving a balance owed of $997.50.

 

– 1-

 

4. The tenant has 10 days, from the entry of this order (below), to deposit $997.50, with the clerk of this court. If the deposit is made, judgment for possession is to enter for the defendant and the money is to be released to the landlord forthwith upon request. If the deposit is not made, judgment is to enter for the landlord for possession, $997.50 and court costs, at the expiration of the 10 day period.

 

5. The court further orders that the landlord is to arrange for the exterminator to be at the premises on September 24, 2004. The tenant is ordered to allow the exterminator access to the unit. All other repairs are to be held pending the tenant payment of the judgment into court. If the payment is made the landlord is to immediately schedule all remaining repairs.

 

So entered this 24th day of September, 2004.

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

R. GHALAINI and M. STARRAGE v. KENNETH KEN and SKYLETT JARRETT

 

WESTERN DIVISION

 

Docket # DOCKET NO. 04-SP-3143

Parties: R. GHALAINI and M. STARRAGE v. KENNETH KEN and SKYLETT JARRETT

Judge: /s/Dina E. Fein Associate Justice

Date: September 13, 2004

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned summary process (eviction) case came before the court for trial on September 9, 2004, after which the following findings of fact and rulings of law are to enter, as provided for under Mass. R. Civ. P. 52(a):

 

1. The plaintiffs (landlords) own the property located at 79 Baldwin Street, Apartment 3R, Springfield (the premises), which they rented to the defendants (tenants), effective September, 2003. The contract rent for the premises was $400 through May, and $600 per month effective June, 2004. Rent totaling $1,800 is unpaid through September, 2004. On July 19, 2004, the tenants received a notice to quit dated July 16, 2004, terminating their tenancy for nonpayment of rent.

 

2. In defense to the landlords’ case, the tenants argue that there are substandard conditions

 

– 1-

 

at the premises, constituting a breach of the warranty of habitability. A number of conditions which violate the State Sanitary Code have existed at the premises since the inception of the tenancy, including defective heaters, a back door which does not seal properly, and a bathroom door in disrepair. The substandard conditions were the subject of two agreements between the parties in an earlier eviction case, docket number 04-SP-00311; one in or around February, 2004, and the other dated June 1, 2004. The February agreement included an abatement of rent then unpaid, on account of the tenants’ claims regarding conditions. The tenants have therefore been awarded damages for the landlords’ breach of warranty, through February.

 

3. I find, however, that the conditions have persisted since February. The landlord was on notice of the substandard conditions, and failed effectively to repair them. As an example, the landlord boarded over the defective bathroom door, rather than properly repairing or replacing it. The ongoing bad conditions give rise to an additional claim for breach of the warranty of habitability, for which the tenants have not yet been compensated.

 

4. I find that the fair rental value of the premises has been reduced by 15% for the period March through June 15, 2004 (the end of the heating season), and by 10% for the period June 16, 2004 through September. The tenants’ damages for the landlord’s ongoing breach of the warranty of habitability are therefore $400 (contract rent) x 15% = $60 x 3 months (March through May) = $180 + $600 (contract rent) x 15% = $90 x %2 month (through June 15) = $45 + $600 (contract rent) x 10% = $60 x 3.5 months (June 16 through September) = $210 = $435. This sum shall be deducted from the unpaid rent

 

 

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through September, resulting in a net amount due to the landlords of $1,800 – $435= $1,365.

 

5. Ordinarily, pursuant to G.L. c. 239, s.8A, the tenants would have ten days from the entry date of this order to pay the amount due, upon which judgment would be awarded in their favor. The tenants have waived their right to cure, however, and have requested an opportunity to make payments towards the amount owed. Therefore, the following order shall enter.

 

6. Order for Entry of Judgment: Judgment shall enter in favor of the plaintiffs for possession and $1,365. Issuance of the execution shall be stayed, conditioned upon the tenants paying $300 per week, beginning on September 23, 2004, until such time as the arrears have been paid and the rent is current.

 

7. The rent shall continue to be reduced by 15%,[1] to $510 per month, until such time as the repairs have been completed satisfactorily, specifically including repairing all of the heaters in order to provide adequate heat, making the back door weathertight, and properly repairing the bathroom door. In the event of any dispute concerning repairs, the parties are ordered to contact the court’s Housing Specialist Department (HSD). Any determinations by the HSD shall be binding upon the parties, unless superceded by order of a judge.

 

8. If the tenants fail to make a payment, the landlords may file a written motion for issuance of the execution. At such time as all payments have been made, and the tenants are

 

 

————————-

 

[1] The heating season begins again effective September 15, 2004, giving rise to the increased abatement.

 

– 3-

 

current with their rent, the case shall be dismissed.

 

So entered this 13th day of September, 2004.

 

 

 

cc: Kevin R. Byrne, Sr.,

Chief Housing Specialist

 

Michael Gove,

Law Clerk

 

– 4-

 

 

 

End Of Decision

 

HOUSING COURT

MARK ESTRELLA v. TRACEY PHILLIPS

 

 

WESTERN DIVISION

 

Docket # Docket No. 04-SP-03147

Parties: MARK ESTRELLA v. TRACEY PHILLIPS

Judge: /s/Dina E. Fein Associate Justice

Date: August 27, 2004

FINDINGS, RULINGS, AND

ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned matter came before the court for hearing on August 26, 2004, after which the following findings of fact and rulings of law are to enter, as provided for under Mass. R. Civ. P. 52(a):

 

1. Effective April 1, 2004, the plaintiff (landlord) rented an apartment located at 55 Forest Park Avenue, Springfield (the premises) to the defendant (tenant), pursuant to a written lease. The contract rent for the premises is $750 per month, and rent totaling $3,000 is unpaid through August, 2004. On or around June 21, 2004, the landlord served and the tenant received a 14 day notice terminating the tenancy for nonpayment of rent. In defense and counterclaim to the landlord’s case, the tenant raises substandard conditions, cross-metering, and retaliation.

 

2. Conditions: Since the inception of the tenancy, there have been conditions at the premises which violate the minimum standards of fitness for human habitation as set

 

– 1-

 

forth in Article II of the State Sanitary Code, 105 CMR 410.00 et seq. Those conditions include lead paint on the kitchen window parting bead, walls and floors in disrepair, and various other conditions which resulted from the landlord having started, and not completed, renovations at the premises. In addition, heat to the premises was inadequate during the month of April, 2004.

 

3. The tenant’s allegations regarding conditions at the premises constitute a defense based upon breach of the implied warranty of habitability, for which the landlord is strictly liable. Berman & Sons v. Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979). It is usually impossible to fix damages for breach of the implied warranty with mathematical certainty, and the law does not require absolute certainty, but rather permits the courts to use approximate dollar figures so long as those figures are reasonably grounded in the evidence admitted at trial. Young v. Patukonis, 24 Mass.App.Ct. 907, 506 N.E.2d 1164 (1987). The measure of damages for breach of the implied warranty of habitability is the difference between the value of the premises as warranted, and the value in their actual

condition. Haddad v. Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991).

 

4. I do not find support in the evidence for the tenant’s position that the premises have been entirely uninhabitable since the inception of the tenancy. Rather, I find that the fair rental value of the premises has been reduce by 20%, on average, since the inception. The tenant’s damages for the landlord’s breach of the warranty of habitability are therefore $750 (contract rent) x 20% = $150 x 5 months (April through August, 2004) = $750.

 

5. Cross Metering: Several electrical outlets or appliances at the premises are cross-metered with the tenant’s unit. Cross-metering without the knowledge or consent of the tenant constitutes a violation of G.L. c. 186, s. 14, entitling the tenant to the greater of her actual

 

– 2-

 

damages, or three months rent. The tenant not having established actual damages, she is awarded three months rent, or $2,250.

 

6. Retaliation: On June 21, 2004, the landlord served the tenant with a notice terminating for tenancy for nonpayment of rent. Although the Code Enforcement Department inspected the premises on June 15, 2004, the notice of violation to the landlord which followed the inspection was not served until July 2, 2004. The tenant, who bears the burden of proving the elements of her retaliation claim, has not established that the landlord was aware of the Code Enforcement inspection at the time he served the notice to quit. The landlord was aware, however, of the Code Enforcement citation when he served and entered the complaint in this case, and he was also aware that the conditions for which he had been cited had not been repaired. I conclude that this sequence of events gives rise to a presumption under G.L. c. 186, s. 18 that the landlord is acting in reprisal against the tenant for her protected activity of contacting Code Enforcement.

 

7. The tenant is entitled to an award of between one and three months rent, as a result of the landlord’s reprisal. I am awarding the minimum, one months rent, or $750. I do so based on my finding that the owner-occupant landlord is relatively unsophisticated with respect to rental property, has been attempting to renovate the property, and was not subjectively motivated to retaliate against the tenant, notwithstanding that he was derelict in his duties as a landlord.

 

8. Conclusion and Order: Based upon the foregoing, judgment shall enter for the defendant tenant for possession and $750 + $2,250 + $750 = $3,750 (tenant’s damages) – $3,000 (landlord’s rent claim) = $750. At the election of the tenant, this sum

may be applied against future rent. The fair rental value of the premises shall continue to be reduced by

 

– 3-

 

20%, to $600, beginning in September, until the repairs are completed. The landlord is also ordered forthwith to take steps to insure that the meter for the tenant’s unit is not connected to areas or appliances outside of her apartment.

 

So entered this 27th day of August, 2004.

 

 

 

cc: Kevin R. Byrne, Sr.

Chief Housing Specialist

 

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End Of Decision

 

HOUSING COURT

Louise Lawrence V. Sharie Torlaschi & Louis Torlaschi, Defendants

 

WESTERN DIVISION

 

Docket # NO. 06CV00081

Parties: Louise Lawrence V. Sharie Torlaschi & Louis Torlaschi, Defendants

Judge: /s/DINA E. FEIN, Associate Justice

Date: March 9, 2006

ORDER

 

After hearing on March 7, 2006, at which both parties were present, the following order is to enter:

 

1. The parties are permitted to visit the properties they co-own, for legitimate purposes associated with their rights and responsibilities as the owners. The parties may not enter each other’s living units without invitation and permission to do so. When at the properties, the parties are not to behave in such a way as to interfere with each others’ right to the quiet enjoyment of their respective homes.

 

2. The parties are ordered to notify one another when they are leaving town, so that each might take steps to monitor their jointly owned property in the absence of the other. The parties may not enter each other’s unit, while the other party is out of town, except in the event of a bona fide emergency and only as necessary to protect the property.

 

So entered this 9th day of March, 2006.

 

 

 

 

 

End Of Decision

HOUSING COURT

DECIO F.F. LEONAI2DO v. MANUJEL JIMINEZ

 

 

WESTERN DIVISION

 

 

Docket # DOCKET NO. 06-CV-00093

Parties: DECIO F.F. LEONAI2DO v. MANUJEL JIMINEZ

Judge: /s/Dina E. Fein Associate Justice

Date: February 24, 2006

ORDER ON PLAINTIFF’S

MOTION FOR TEMPORARY

RESTRAINING ORDER

 

After hearing on February 24, 2006, the following order is to enter:

 

1. The Defendant (landlord) is to restore heat and hot water to the premises forthwith.

 

2. Until the landlord complies with p. 1 of this order, he is to provide alternative housing for the Plaintiff (tenant) and his family.

 

3. The tenant is prohibited from using the stove or any unauthorized heating units, as determined by the Housing Specialist Department.

4. The landlord is not to take any action that may interfere with the tenant’s quiet enjoyment of the premises.

 

5. This case is continued for further review on Tuesday, February 28, 2006 at 9:00 A.M. All parties are ordered to appear at the above hearing. Failure to appear may result in the issuance of a capias (arrest warrant).

 

 

So entered this 24th day of February, 2006

 

 

 

 

-1-

 

 

End Of Decision

 

 

HOUSING COURT

Jose M. Gracia V. JUNIOR FALCON

 

 

WESTERN DIVISION

 

Docket # NO. 06CV00099

Parties: Jose M. Gracia V. JUNIOR FALCON

Judge: /s/DINA E. FEIN, Associate Justice

Date: March 1, 2006

ORDER

 

After hearing on March 1, 2006, at which both parties were present, the following order is to enter:

 

1. Mr. Gracia is ordered to vacate the subject premises located at 593 Chestnut Street Yd Fl., Springfield, MA forthwith.

 

2. Mr. Gracia is ordered to surrender his knife to a representative from the Springfield _ Police Department, forthwith.

 

3. Mr. Gracia is prohibited from having any contact with Mr. Falcon and the members of his household.

 

4. A sheriff or constable is hereby authorized to levy upon this order as if it were an execution issued pursuant to G.L.C. 239, following service of a forth-eight hour notice.

 

So entered this 1st day of March, 2006.

 

 

 

cc: Springfield Police Department

 

 

 

End Of Decision

 

HOUSING COURT

City of Springfield vs. Sudie Williams & Berrita Ledo, Defendants

 

WESTERN DIVISION

 

Docket # NO.06TR00120

Parties: City of Springfield vs. Sudie Williams & Berrita Ledo, Defendants

Judge: /s/Dina E. Fein, Associate Justice

Date: February 21, 2006

ORDER

 

After hearing on February 17, 2006, at which time both parties were present, the following order is to enter:

1. The plaintiff’s motion to add Ms. Narvis Hanford as a defendant to this case is allowed.

 

2. Ms. Williams and Ms. Hanford are jointly ordered to restore the heat at the subject premises, forthwith.

 

3. Ms. Ledo and Mr. Dancy are ordered to provide Ms. Williams, or her agent, with access to the subject premises for the purpose of installing smoke detectors and completing all necessary repairs.

4. Ms. Ledo and Mr. Dancy are ordered to discontinue their use of space heaters and ovens to heat the subject premises, forthwith.

5. Ms. Williams and Ms. Hanford are ordered to provide Ms. Ledo, Mr. Dancy and the members of their household with alternative housing. If the City of Springfield funds alternative housing, temporarily, it may place a lien on the subject property to

secure reimbursement therefore.

6. This matter is scheduled for review on Wednesday, February 22, 2006 at 2:00 P.M., at which time all parties are ordered to appear.

 

So entered this 21st day of February, 2006.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

VALLEY MANAGEMENT, INC., doing business as VALLEY REAL ESTATE v. ANNE M. MAJKA

 

WESTERN DIVISION

 

Docket # NO. 06-CV-

Parties: VALLEY MANAGEMENT, INC., doing business as VALLEY REAL ESTATE v. ANNE M. MAJKA

Judge: Dina E. Fein, Associate Justice

 

Date: February 3, 2006

ORDER

 

The Court, after hearing, enters the following orders:

 

1. The Defendant, ANNE M. MAJKA, is prohibited from entering into or remaining upon the premises known as the BOSTON ROAD MOBILE HOME PARK, including all residences thereat, and all interior and exterior common areas, streets, driveways, sidewalks, and all other areas encompassed by the following public ways: Boston Road, on the Park’s northern boundary; Slater Avenue, to the west of the Park’s boundary; and Grayson Drive, to the south of the Park’s boundary, and Pasco Road, to the east of the Park’s boundary;

 

2. The Defendant’s mother, Susan Costa, is permitted to secure the mobile home of the Defendant located at 55 Rest Way, Springfield, by padlock or similar device and to retain a key to the home. Ms. Costa shall have access to the said mobile home at her convenience, in order to remove the Defendant’s personal property and otherwise to prepare the home for sale;

 

3. The Plaintiff, VALLEY MANAGEMENT, INC., will be provided with the key to the Defendant’s mobile home. The key shall be kept in a secure location and the Plaintiffs employees shall be entitled to enter the home in the event of emergency;

 

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4. THIS ORDER SHALL CONSTITUTE A CONTINUING “NO TRESPASS” NOTICE, PROHIBITING ANNE M. MAJKA FROM ENTERING UPON THE PREMISES AT THE BOSTON ROAD MOBILE HOME PARK.

 

5. ANY ENTRY BY ANNE M. MAJKA UPON THE PREMISES AT THE BOSTON ROAD MOBILE HOME PARK SHALL ALSO CONSTITUTE A VIOLATION OF THE TRESPASS STATUTE, GENERAL LAWS CHAPTER 266, SECTION 120, AND SHALL SUBJECT THE VIOLATOR TO ARREST AND PROSECUTION UNDER THAT STATUTE.

 

All until the further order of the Court.

 

 

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End Of Decision

 

HOUSING COURT

VALLEY MANAGEMENT, INC., doing business as VALLEY REAL ESTATE, v. FELIX AMARO

 

 

 

Docket # NO. 06-CV-0046

Parties: VALLEY MANAGEMENT, INC., doing business as VALLEY REAL ESTATE, v. FELIX AMARO

Judge: /s/Dina E. Fein, Associate Justice

 

Date: February 7, 2006

ORDER

 

After hearing on February 3, 2006, at which both parties were present and had an opportunity to be heard, the Court enters the following orders:

 

1. The Defendant, FELIX AMARO, is prohibited from entering into or remaining upon the premises known as the Vander Heyden Apartments, 774 State Street, Springfield, Massachusetts, including all residential apartments thereat, and all interior

and exterior common areas, and all adjacent streets, driveways, parking lots and sidewalks;

 

2. The Plaintiff, VALLEY MANAGEMENT, INC., is permitted to change the entrance locks to the Amaro apartment, 774 State Street, Apartment 203, immediately;

 

3. The Plaintiff is directed to cooperate with members of the Defendant’s family, for the purpose of removing the Defendant’s personal property and the Plaintiff’s employees will grant access to such persons at reasonable times and with such reasonable advance notice as may be required;

 

4. This order shall remain in effect either until the Defendant has voluntarily surrendered possession of the premises to the Plaintiff or the conclusion of the Summary Process case which the Plaintiff intends to file against the Defendant at the expiration of the 30 day notice period set forth in the Notice to Quit dated January 27, 2006, and served upon the Defendant on or about that date.

 

– 1-

 

 

5. THIS ORDER SHALL CONSTITUTE A CONTINUING “NO TRESPASS” NOTICE, PROHIBITING FELIX AMARO FROM ENTERING UPON THE PREMISES AT THE VAN DER HEYDEN APARTMENTS.

 

6. ANY ENTRY BY FELIX AMARO UPON THE PREMISES AT THE VAN DER HEYDEN APARTMENTS SHALL ALSO CONSTITUTE A VIOLATION OF THE TRESPASS STATUTE, GENERAL LAWS CHAPTER 266, SECTION 120, AND SHALL SUBJECT THE VIOLATOR TO ARREST AND PROSECUTION UNDER THAT STATUTE.

 

All until the further order of the Court.

 

 

 

 

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End Of Decision

 

HOUSING COURT

Scarafoni Realty v. Duc Van Hugnh

 

WESTERN DIVISION

 

Docket # NO. 06CV 59

Parties: Scarafoni Realty v. Duc Van Hugnh

Judge: /s/DINA E. FEIN Associate Justice

Date: March 9, 2006

ORDER

 

After hearing on March 9, 2006 conducted by telephone, at which a representative of the plaintiff, and Christine Greene from the Tenancy Preservation Program were present, the

following order is to enter:

 

1. The defendant, Duc Van Hugnh, is ordered to vacate the premises at 161 Bradford Street,

#5, FORTHWITH.

 

2. If Mr. Van Hugnh returns to the premises or is otherwise found to be on the premises, he shall be deemed a trespasser and subject to arrest by the Pittsfield Police Department.

 

3. This order shall authorize the Berkshire County Sheriff’s Department to levy for the purposes of physically evicting the defendant FORTHWITH and without further process and shall be construed to have the same effect as the issuance of an execution for possession under M.G.L. c. 239, the Massachusetts summary process.

 

So entered this 9th day of March, 2006.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

RADAR REALTY ENTERPRISES, INC. v. HENRY JOHNSON AND MARILYN JOHNSON and MARILYN JOHNSON v. MARGARITA FLECHA

WESTERN DIVISION

 

Docket # DOCKET NO. 06-SP-01332 and 06-CV-00060

Parties: RADAR REALTY ENTERPRISES, INC. v. HENRY JOHNSON AND MARILYN JOHNSON and MARILYN JOHNSON v. MARGARITA FLECHA

Judge: /s/Dina E. Fein

Associate Justice

Date: May 19, 2006

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned consolidated cases came before the court for trial on May 19, 2006, after which the following findings of fact and rulings of law shall enter.

 

1. The plaintiff Radar Realty Enterprises, Inc. (the landlord) owns the property located at 108 Avenue A, Turners Falls, Effective November 1, 2005, the landlord rented Apartment 7 at the premises to the defendants (tenants), pursuant to a written tenancy at will agreement. The agreed upon rent for the premises is $575 per month, On February 8, 2006 the landlord served and the tenant received a rental period notice terminating the tenancy. Rent totaling $2,300 is

 

– 1-

 

unpaid through May, 2006.

 

2. On February 8, 2006, the tenant Marilyn Johnson applied for a

temporary restraining order against Margarita Flecha, the landlord’s property manager who also resides at the subject property. That case is consolidated with the landlord’s eviction case for purposes of trial.

 

3. At or around the inception of the tenancy, the tenants paid and the landlord (through the property manager) received, a security deposit in the amount of $575. Although the landlord notified the tenants that the security deposit would be placed in a Bank of America account, the account number was not identified, nor did the landlord have a statement of conditions completed. The landlord has therefore forfeited the right to retain the security deposit, as provided for under G.L. c. 186, s.15B, and the amount of the deposit shall be credited against unpaid rent, as indicated below,

 

4. The only other claim as to which the tenants put on any evidence is their retaliation defense and counterclaim. The tenants allege that the notice to quit was served in reprisal for the tenants’ protected activity in applying for a temporary restraining order. I find and rule that the tenants have not established reprisal. The decision to serve the notice to quit and the steps necessary to effectuate service were made prior to Ms. Johnson applying for a restraining order. In addition, even were the timing such as to raise a presumption of retaliation, the landlord has rebutted that presumption by clear and convincing evidence that the eviction was motivated by the numerous tenant-caused disturbances at the premises.

 

5. ORDER: Based upon the foregoing, and as provided for under G.L. c. 239, s.8A, the tenants shall have 10 days from the entry date of this order (below) to deposit with the Clerk’s office the sum of $2,300 (unpaid rent) – $575 (forfeited security deposit) = $1,725. If they do so, that sum shall be released to the landlord forthwith upon request, and judgment for possession

 

– 2-

 

shall enter in favor of the tenants. If the tenants fail to make the required deposit, judgment shall enter in favor of the plaintiff for possession and $1,725, at the expiration of the 10 day period.

 

6. This ruling is without prejudice to the landlord’s right to seek injunctive relief in the event of any disturbances by the tenants at the premises and/or to initiate a for-cause eviction. Ms. Flecha and the Johnson are ordered not to have any contact with one another, except in the event of a bona fide emergency. All non-emergency contact is to be through Attorney Mason. In addition, the Johnsons are ordered not to have any contact with any of the witnesses who testified at trial, specifically including Diana Nunez.

 

So entered this 19th day of May, 2006.

 

 

 

 

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End Of Decision

 

HOUSING COURT

ZEUS REALTY TRUST v. SCOTT DESCHAINE

 

Western Division

 

Docket # 04-SP-01256

Parties: ZEUS REALTY TRUST v. SCOTT DESCHAINE

Judge: /s/Dina E. Fein

Associate Justice

Date: May 28, 2004

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned summary process (eviction) case came before the court for trial on May 6, 2004, and a view was conducted on May 11, 2004. Based upon the evidence admitted at trial, including the view report, the following findings of fact and rulings of law are to enter, as provided for under Mass. R. Civ. P. 52(a):

 

1. The plaintiff (landlord) owns the property located at 861 Main Street, 1st Floor, Holyoke (the premises) which was rented to the defendant (tenant) pursuant to a written lease, effective February 15, 2004. The contract rent for the premises is $575 per month. The lease called for a first months rent (prorated), last months rent, and security deposit in the amount of $575 to be paid at the inception of the tenancy. The tenant made two payments at or before the inception: one in the amount of $175, and one in the amount of $575, labeled as being for security [deposit] or last month rent. Rent totaling $1,725 is unpaid through May, 2004. On or around March 2, 2004 the landlord served and the tenant

 

– 1-

 

received a notice terminating the tenancy for nonpayment of rent.

2. In defense and counterclaim to the landlord’s case, the tenant alleged numerous claims. Evidence and/or argument were only offered as to the claims for retaliation, substandard conditions, violation of the security deposit statute, and interference with quiet enjoyment. The court will address each of these claims in turn, and any other claims raised in the tenant’s pleadings are deemed waived.

3. Retaliation: On or around February 28, 2004, the tenant wrote the landlord a letter enumerating a number of conditions which, in the tenant’s view, were in need of repair. This constituted protected activity under G.L. c. 186, s.18, and G.L. c. 239, s.2A. The landlord served a notice terminating the tenancy within several days of receiving the tenant’s written request for repairs. A notice to quit for nonpayment of rent does not trigger any statutory presumption of reprisal, however, and I do not find that the landlord’s conduct in terminating the tenancy was in fact retaliatory. The landlord is therefore entitled to a ruling in his favor on this claim.

 

4. Conditions: The tenants’ allegations regarding conditions at the premises constitute a claim for breach of the implied warranty of habitability, for which the landlord is strictly liable. Berman & Sons v. Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979). It is usually, impossible to fix damages for breach of the implied warranty with mathematical certainty, and the law does not require absolute certainty, but rather permits the courts to use approximate dollar figures so long as those figures are reasonably grounded in the evidence admitted at trial. Young v. Patukonis, 24 Mass.App.Ct. 907, 506 N.E.2d 1164 (1987). The measure of damages for breach of the implied warranty of habitability is the

 

– 2-

 

difference between the value of the premises as warranted, and the value in their actual condition. Haddad v. Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991).

5. A number of conditions existed at the inception of the tenancy which violated the minimum standards of fitness for human habitation, as set forth in Article II of the State Sanitary Code, 105 CMR 410.00 et seq. The conditions included a defective stove, missing window screens, exposed hot water pipes, a defective interior door, a defective security door, inadequate facilities in the bathroom, and a defective refrigerator. A number of these conditions were repaired early on in the tenancy, before the tenant’s letter dated February 28. Other conditions were not repaired until the end of April, while still others were not repaired until mid-May. The delay in making repairs was due in part, although not entirely, to the tenant’s failure to provide access to the premises. The conditions had an adverse effect on the tenant’s use of the premises, including requiring that he vacate the premises briefly as a result of the defective stove.

6. Taking all of these factors into consideration, I find that the fair rental value of the premises has been reduced as follows: by 50% for the period February 15 – February 28, 2004; and by 35% for the period March 1 – May 15, 2004. The tenant’s damages for the landlord’s breach of the warranty are therefore $575 (contract rent) x 50% = $287.50 x 1/2 month = $143.75 + $575 x 35% = $201.25 x 2.5 months = $503.13 = $646.88.

7. Security Deposit Statute: In raising a claim for violation of the security deposit statute, the tenant bears the burden of proving that he paid a security deposit. The lease called for payment of a last months rent and a security deposit, both in the amount of $575. The tenant made only one such payment, noting on the payment check that it was for the

 

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security deposit or the last months rent. Under these circumstances, the landlord was entitled to treat the payment as one or the other; the landlord was not under any obligation

to treated it as a security deposit, and handle it accordingly. As such, the landlord is entitled to a ruling in its favor on the tenant’s security deposit claim, but is also obligated to treat the payment in question as last months rent.

8. Interference With Quiet enjoyment: The tenant’s claim for interference with quiet enjoyment alleges that the landlord did not provide adequate heat, allowed bad conditions to exist in the apartment, and appeared at the premises without notice. Based on the tenant’s repeated failure to permit access, and the related absence of any evidence showing at least negligence by the landlord, see Al-Ziab v. Mourgis, 424 Mass. 847 (1997), the landlord is entitled to a ruling in his favor on this claim.

9. Ruling and Order: Based upon the foregoing, and as provided for under G.L. c. 239, s.8A, the tenant shall have 10 days from the entry date of this order to deposit with the Clerk’s office the sum of $1,725 (landlord’s rent claim) – $646.88 (tenant’s damages) = $1,078.12. If he does so, the funds shall be released forthwith upon request to the landlord, and judgment shall enter in favor of the tenant for possession. If the tenant fails to deposit the required payment, judgment for possession and $1,078.12 shall enter in favor of the landlord at the expiration of the ten day period.

 

So entered this 28th day of May, 2004.

 

 

 

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End Of Decision

 

HOUSING COURT

NORMAN GREEN v. NICHOLE DETATA and JOSEPH SABADOSA

 

WESTERN DIVISION

 

Docket # 04-SP-01394

Parties: NORMAN GREEN v. NICHOLE DETATA and JOSEPH SABADOSA

Judge: /s/Dina E. Fein

Associate Justice

Date: June 8, 2004

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

 

After trial on June 3, 2004, the following findings of fact and rulings of law are to enter, as provided for under Mass. R. Civ. P. 52(a):

 

1. The plaintiff (landlord) owns the property located at 44-46 Gordon Street, Springfield, having purchased same in December, 2003. When the landlord acquired the property, the defendants (tenants) occupied 44 Gordon Street (the premises), pursuant to a written month-to-month rental agreement entered into with the previous owner, effective November 1, 2003. The agreed upon rent for the premises is $700 per month. On or around February 9, 2004, the landlord served and the tenants received a rental period notice terminating the tenancy effective March

31, 2004. Rent and/or use and occupancy totaling $2,800 is unpaid for the months of March through June, 2004.

2. In defense and counterclaim to the landlord’s case, the tenants raise the following claims: bad conditions constituting breach of the warranty of habitability; retaliation; and interference with quiet enjoyment by virtue of “harassment,” interference with utilities

 

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(water), and unauthorized entry.[1] The court will treat these claims in turn.

3. Conditions: When the landlord acquired the property, a number of conditions existed at the premises which violated the minimum standards of fitness for human habitation as set forth at Article II of the State Sanitary Code.. These conditions included an infestation of mice, inadequate snow and ice removal, defective plumbing fixtures, malfunctioning electrical outlets and light fixtures, a hole in one bedroom ceiling, a broken window (missing pane) in the kitchen, defective window screens, a missing porch light, a porch floor in disrepair, and a defective stove. Essentially all of the substandard conditions were repaired as of June 2, 2004. Only minor repairs remain to be completed, and the remaining conditions do not have an adverse impact on the tenants’ use of the premises.

4. The tenants’ allegations regarding conditions at the premises constitute a claim for breach of the implied warranty of habitability, for which the landlord is strictly liable. Berman & Sons v. Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979). The landlord is deemed on notice of conditions which exist at the inception of the tenancy. In this case, by operation of G.L. c. 186, s. 13, which provides in pertinent part that “[a] tenancy at will of property occupied for dwelling purposes shall not be terminated by operation of law by the conveyance…of the premises..,” the landlord is strictly liable for conditions which existed at the premises when he acquired the property.

5. It is usually impossible to fix damages for breach of the implied warranty with mathematical certainty, and the law does not require absolute certainty, but rather permits

 

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[1] Although the tenants raised other claims in their Answer and Counterclaim, no evidence or arguments were offered in their support, and they are therefore deemed waived, with one exception. The Answer refers to an injury which Ms. Detata suffered when she slipped and fell on the “back stairs.” Any claims related to this alleged incident are reserved to the tenants, and any defenses to such claims are reserved to the landlord.

 

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presumption that the landlord has acted in reprisal against the tenants, which presumption may be rebutted only upon clear and convincing evidence that the landlord had an independent justification for taking the action that he did, and would in fact have taken such action, in the same manner and at the same time, irrespective of the tenants’ protected activities. No evidence was offered to rebut the presumption.

8. The landlord’s reprisal entitles the tenants to an award of between one and three months rent. I am exercising my discretion to award the minimum amount, one month rent. I am doing so based on my assessment that the tension between the parties emanates from both directions, and given that the landlord has otherwise acted responsibly in, albeit belatedly, completing necessary repairs. The tenants are awarded $700.

9. Interference With Quiet enjoyment: The tenants have not established that the landlord breached the covenant of quiet enjoyment. Although the landlord did enter the premises when the tenants were not present, he did so for a legitimate purpose, pursuant to written notice, and the tenants did not notify him that he was not authorized to do so. While he did disrupt their belongings to some extent, the relatively minimal disruption does not rise to the level of interference with quiet enjoyment. Similarly, the landlord’s having turned off the water on two occasions, one of which was corrected forthwith by the tenant, did not so impair the character of the tenancy as to constitute interference with quiet enjoyment. The landlord is therefore entitled to a ruling in his favor on this claim.

10. Conclusion and Order: Based upon the foregoing, and as provided for under G.L. c. 239, s.8A, the tenants shall have ten days from the entry date of this order to deposit with the Clerk’s office the sum of $2,800 (landlord’s rent claim) – $1,750 (tenants’ damages) = $1,050. (As the tenants have already deposited in excess of this amount with the

 

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Clerk’s office, this order may be satisfied by authorizing the Clerk’s office in writing to release this amount [$1,050] to the landlord within ten days. In the event that such authorization is forthcoming, the balance held on deposit shall be returned to the tenants forthwith.) If payment to the landlord is authorized as herein provided, judgment for possession shall enter for the tenants. If payment is not authorized, judgment for possession and $1,050 shall enter in favor of the landlord at the expiration of the ten day period.

 

So entered this 8th day of June, 2004.

 

 

 

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End Of Decision

 

HOUSING COURT

LINDEN TOWERS vs. SAMUEL McLAURIN

 

WESTERN DIVISION

 

Docket # CIVIL ACTION NO. 04 CV 0093 and 04 SP 1444

Parties: LINDEN TOWERS vs. SAMUEL McLAURIN

Judge: /s/Dina E. Fein, Associate Justice

Western Division Housing Court

Date: August 4, 2004

ORDER

This matter was before the Court for Review on August 3, 2004, and also for Hearing on the Plaintiff’s Emergency Motion To Remove Defendant From Subject Premises. The Plaintiff was present, represented by counsel, and the tenant was present. Also present was Michael Stein, the Tenant’s Case Manager from the Department Of Mental Health. After Hearing, the following Order is to enter:

 

1. The Court specifically finds that the tenant has breached the prior Order of the Court dated July 15, 2004, in that he has failed to comply with the terms and conditions of his Individual Service Plan with the Department Of Mental Health, as amended on July 16, 2004;

 

2. The Landlord is authorized to immediately take over physical possession of the tenant’s apartment, and to change the locks to that apartment.

 

3. The tenant is ordered immediately removed from the subject premises, and he is not allowed on the premises of the Linden Towers Apartment Complex for any reason, except as set forth herein;

 

4. By pre-arrangement with the Plaintiff’s Property Manager and Security Personnel, the tenant shall be permitted limited access to his apartment for the sole purpose of removing personal property items. The tenant shall otherwise not be allowed back into his apartment for any reason;

 

5. The Plaintiff, through its Social Service personnel, is to immediately take whatever steps are necessary to provide services for the Tenant’s mother who also resides at the Plaintiff’s apartment complex;

 

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6. This matter shall be continued for further “Review” on August 17, 2004 at 2:00 p.m. In the event that the Tenant elects to take advantage of available services and admit himself to a respite facility, then the Court will entertain the Tenant’s request to return to his apartment, and the Court shall consider the Tenant’s progress and mental health status at that time. If the Tenant has elected not to take advantage of any such services, including admission to a respite facility, then the tenant will not be allowed to return to the subject

premises under any circumstances;

7. Should the tenant return to the subject premises in violation of this Order, the tenant shall be subject to arrest and removal from the premises by representatives of the Springfield Police Department, at the Plaintiff’s request.

8. The Execution for possession shall issue forthwith to the Plaintiff, and the Plaintiff will otherwise take no action to recover full possession (i.e. removing the tenant’s property if not otherwise already removed by the tenant) pending Review of this matter on August 17th.

 

So entered this 4th day of August 2004.

 

 

 

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End Of Decision

 

HOUSING COURT

THOMAS FIL v. FRANK WDOWIAK and MARY BOURRET

WESTERN DIVISION

 

Docket # 04-SP-01588

Parties: THOMAS FIL v. FRANK WDOWIAK and MARY BOURRET

Judge: /s/Dina E. Fein

Associate Justice

Date: May 26, 2004

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned summary process (eviction) case came before the court for trial on May 24, 2004, after which the following findings of fact and rulings of law are to enter:

1. The plaintiff (landlord) owns a single family home at 38 Newton Lane, Hadley, and rented a room therein to the defendants (tenants), effective September, 1999 as to Mr. Wdowiak, and sometime in 2000 as to Ms. Bourret. On or around February 24, 2004, the landlord served and the tenants received a rental period notice terminating the tenancy for grounds including “consistent disruptive behavior,” the tenants’ “inability to get along with either [the landlord] or the other tenant on the premises,” and “frivolous complaint[s].” Rent is current through May, 2004.

2. I find that the landlord has established the grounds alleged in the notice to quit. The tenants’ disruptive behavior includes making noise late at night, leaving accumulated personal belongings in common areas, and videotaping the landlord. The tenants have

 

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also complained unjustifiably and repeatedly about another tenant at the premises, and have called the police on repeated occasions, also without justification. The tenants’ behavior has significantly interfered with the ability of the other occupants, including the landlord who owns the single family home in question, to feel safe and comfortable at the premises.

3. In defense and counterclaim to the landlord’s case, the tenants allege substandard conditions at the premises, and illegal retaliation.[1] I find that the conditions at the premises do not violate the minimum standards of fitness for human habitation as set forth in the State Sanitary Code, or otherwise reduce the fair rental value of the premises. To the contrary, the evidence, including photographs and a report from the Town of Hadley Board of Health, establishes that the premises are in good repair.

4. I also find that the landlord is entitled to a ruling in his favor on the tenants’ claim of retaliation. The tenants did complain to the landlord in writing about conditions at the premises. These complaints were unjustified, however, and were more likely than not made for the strategic purpose of

“bootstrapping” a retaliation defense in the event that the landlord sought to evict the tenants. As to other protected rights that the tenants exercised in the context of previous litigation between the parties, the landlord has established by clear and convincing evidence that he had an independent justification for terminating the tenancy, namely the tenants’ disruptive behavior, inability to get along with the other occupants of the premises, and frivolous complaints; and that he would

 

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[1] To the extent that the tenants’ answer raised any other claims, they are deemed waived, as no evidence as to other claims was offered at trial, nor were any others argued.

 

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have done so when he did, in the manner that he did, notwithstanding the tenants’ alleged protected activity.

5. Conclusion and Order for Entry of Judgment: Based upon the foregoing, judgment shall enter in favor of the plaintiff landlord, for possession. The execution shall issue in due course. The parties are not to have any contact with one another, except in the event of a bona fide emergency.

 

So entered this 26th day of May, 2004.

 

 

 

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End Of Decision

 

HOUSING COURT

KAMINS REAL ESTATE v. JOSEPH MUSOBO and CHUKUEMEKA ONU

 

WESTERN DIVISION

 

Docket # 04-SP-02189

Parties: KAMINS REAL ESTATE v. JOSEPH MUSOBO and CHUKUEMEKA ONU

Judge: /s/Dina E. Fein

Associate Justice

Date: June 30, 2004

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned summary process (eviction) case came before the court for trial on June 25, 2004, at which time the plaintiff (landlord) and the defendant (tenant) Chukuemeka Onu appeared, but the tenant Joseph Musoba failed to appear. Based upon the evidence admitted at trial, the following findings of fact and rulings of law are to enter, as provided for under Mass. R. Civ. P. 52(a):

 

1. Effective September 1, 2003, the parties entered into a written lease agreement for rental of the premises known as Apartment 5A, Lantern Court, Sunderland. The tenants were both signatories to the lease, which obligated them jointly and severally to pay a total of $8,400 over 12 months, at monthly installments of $700. On or around May 10, 2004, the landlord served a 14 day notice to quit for nonpayment of rent. The complaint in this case was timely entered, claiming unpaid rent through May of $2,695.

2. The tenant Joseph Musoba failed to appear at trial. The landlord is therefore entitled to a

 

 

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default judgment as to Mr. Musoba. The tenant Mr. Onu did appear, however, and argued that all of the rent due since the inception of this tenancy, September 1, 2003, has in fact been paid, and that this case seeks to collect rent, and evict the tenants, for rent unpaid and due pursuant to an earlier tenancy to which Mr. Onu was not party.

3. In an eviction case, the landlord bears the legal burden of proving both the right to recover possession, and the right to recover money. The landlord in this case has failed to meet his burden of proving the amount of rent claimed. A preponderance of the evidence established only that a total of $7,000 was due through June, 2004, under the lease agreement between and among the parties to this case, and that payments totaling $6,360 were received from one or the other tenant during that same period, resulting in a deficiency of $640. The larger figure claimed in the complaint apparently results from the fact that the landlord applied payments in some amount, made by Mr. Musoba during the relevant period, to a debt which preexisted the lease among these parties and arose out of a lease to which Mr. Onu was not a party. The landlord has not carried its burden of proving that the method by which it accounted for Mr. Musoba’s payments was pursuant to an enforceable agreement. Nor did the landlord establish the amount of the payments which were applied to Mr. Musoba’s preexisting debt, as opposed to the debt he shared jointly with Mr. Onu. This question was not clarified by the landlord’s record keeping, which seemed to merge the accounting for the two tenancies to which Mr. Musoba was party, and was, in no way, self-explanatory.

4. In light of the foregoing, the landlord is entitled to recover $640 from Mr. Onu, as that is the total amount unpaid by either tenant since the inception of this tenancy. This figure is significantly less than the amount alleged to be due in the notice to quit served on Mr.

 

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One. A notice to quit for nonpayment of rent due under a lease is required to extend to the tenant an opportunity to pay the amount due, and reinstate the tenancy. As the notice to quit which was served in this case significantly overstated the amount due, Mr. Onu was deprived of his rightful opportunity to reinstate the tenancy. Therefore, and consistent with the principle that the law abhors the forfeiture of a lease, Mr. Onu shall have 14 days from the entry date of this order to pay the amount actually due through June, $640. If payment is made, the tenancy will be deemed reinstated, and this case will be dismissed.

5. Order: The defendant tenant shall have 14 days from the entry date of this order to pay the sum of $640 directly to the landlord. If the sum is timely paid, judgment for possession will enter for the tenant, and this case will be dismissed. If

that sum is not timely paid, the landlord may move for entry of judgment at the expiration of the 14 day period, and schedule that motion for hearing before the court.

 

So entered this 30th day of June, 2004.

 

 

 

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End Of Decision

 

HOUSING COURT

VALLEY MANAGEMENT, INC., doing business as VALLEY REAL ESTATE v. TINA BIGOS and JOHN TARANTINO

 

WESTERN DIVISION

 

Docket # CIVIL ACTION NO. 04-CV-0138

Parties: VALLEY MANAGEMENT, INC., doing business as VALLEY REAL ESTATE v. TINA BIGOS and JOHN TARANTINO

Judge: /s/Dina E. Fein

Associate Justice

Date: March 28, 2004

ORDER

 

The Court, after further hearing on March 29, 2004, at which all parties were present and had an opportunity to be heard, amends its Order of March 26, 2004, and incorporates the ex pane temporary restraining order into the following Orders for preliminary injunction, as follows:

 

1. The Defendant, John Tarantino, is prohibited from entering upon or remaining at the premises known as the Boston Road Mobile Home Park, including all residences thereat, and all interior and exterior common areas, streets, driveways, sidewalks, and all other areas;

 

2. The Defendant, John Tarantino, is further enjoined to have no contact with and to remain at least 100 feet away from all employees of the Plaintiff, Valley Management, Inc., and all officials and employees of the Boston Road Mobile Home Park Tenants Association;

 

3. The Defendant, John Tarantino, is permitted to return to the premises at 20 Mobile Home Way for the limited purpose of retrieving personal property but only on condition that he first coordinate his intended date and time of return to

 

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the premises with the Housing Specialist Department of this Court (748-7838), and that the Housing Specialist obtains the assent of the Plaintiff, or its counsel, for such visit, to include the date, time and duration of time needed for the said Defendant to collect personal property and depart from the Boston Road Mobile Home Park. SUCH PRIOR NOTICE TO AND APPROVAL BY THE COURT AND THE PLAINTIFF IS REQUIRED FOR EVERY RETURN TO THE PREMISES; and

4. If the Defendant, John Tarantino, is observed to be on the premises of the Boston Road Mobile Home Park in violation of this Order, HE SHALL BE SUBJECT TO IMMEDIATE ARREST FOR CRIMINAL TRESPASS.

 

So entered, this 28th day of March, 2004.

 

 

 

 

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End Of Decision

 

HOUSING COURT

GLOBAL STRATEGIC INVESTMENT CORP. v. JENNIFER and DANIEL CORTIS

 

WESTERN DIVISION

 

Docket # 04-SP-02184

Parties: GLOBAL STRATEGIC INVESTMENT CORP. v. JENNIFER and DANIEL CORTIS

Judge: /s/Dna E. Fein

Associate Justice

Date: June 24, 2004

FINDINGS, RULINGS, AND ORDER OF DISMISSAL

 

The above-captioned summary process (eviction) case came before the court for trial on June 24, 2004, at which time all parties appeared. Based upon the evidence offered at trial, the case is dismissed, for the reasons set forth below.

1. On April 28, 2004, the plaintiff (landlord) served the defendants (tenants) with 4 notices. Those notices were accepted into evidence, and are marked as Exhibits 1- 4. Two of the notices (Exhibits 1 and 2) are 14 day notices to quit, alleging unpaid rent in the amount of $1,250. The third notice (Exhibit 3) is entitled “Final Notice Before Legal Action,” demands payment of $1,250, and includes the following language: “Failure to remit payment within ten (10) days of date of this notice will result in immediate legal action…” The fourth notice is entitled “Notice to Terminate Tenancy,” and purports to terminate the tenancy for specified grounds, effective May 27, 2004.

2. The landlord was required to terminate the subject tenancy properly, before entering this eviction case in court. The landlord did not properly terminate the tenancy. To the

 

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contrary, he sent inconsistent notices. The notices to quit for nonpayment by their terms extended a period of time within which the tenants were permitted to pay and retain possession, while the notice terminating the tenancy for grounds purported to require the tenants to surrender possession unconditionally. In addition, the Notice to Terminate Tenancy was defective, as it did not provide the tenants with an entire rental period’s notice, in violation of G.L. c. 186, s. 12.

3. The landlord is not permitted to “blow hot and blow cold.” Maguire v. Haddad, 325 Mass. 590 (1950). The notices he sent to the tenants did not communicate a consistent position with respect to the tenancy. The tenancy was therefore not properly terminated, a jurisdictional prerequisite to this court case was therefore not satisfied, and the case must be dismissed.

 

So entered this 24th day of June, 2004.

 

 

 

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End Of Decision

 

HOUSING COURT

JNJ REALTY TRUST vs. GEORGE MERRILL

 

WESTERN DIVISION

 

Docket # 04SP0126-F

Parties: JNJ REALTY TRUST vs. GEORGE MERRILL

Judge: /s/DINA E. FEIN, Associate Justice

Date: January 30, 2004

ORDER

 

After hearing on January 29, 2004, at which both parties were present, the following order is to enter:

 

1. The court finds that rent in the amount of $1,650.52 remains unpaid through January 2004.

 

2. The court finds that conditions have existed at the premises for five (5) months that have reduced the fair rental value of the property by 10% since September, 2003. The total rental abatement is $275.00.

 

3. Under MGL Ch 239 Sec 8A the total rent owed (1,650.52) is to be reduced by the total abatement (275.00) leaving a balance owed of $1,375.52.

 

4. The tenant is unable to cure under MGL Ch 239 Sec 8A, therefore judgment is to enter for the plaintiff for possession, $1,375.52 plus court costs. The execution (eviction order) is stayed conditioned upon the defendant paying current rent plus an additional $100.00 per month until paid in full.

 

5. All repairs are to begin on February 3, 2004 at 9:00 A.M.

 

So entered this 30th day of January, 2004.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

SOURIRE LLC, Plaintiff v. MIGUEL COLON, Defendant

 

WESTERN DIVISION

 

Docket # DOCKET NO. 05SP03137

Parties: SOURIRE LLC, Plaintiff v. MIGUEL COLON, Defendant

Judge: /s/ Dina E. Fein

Associate Justice

Date: September 27, 2005

FINDINGS, RULINGS, AND ORDER

 

The above-captioned matter came before the court for trial on September 22, 2005, after which the following findings of fact and rulings of law are to enter, as provided for under Mass. R. Civ. P. 52(a):

1. The plaintiff (landlord) owns the property located at 370 High Street, Holyoke, having purchased same in late June, 2005. The defendant (tenant) was residing in Apartment 2D when the landlord purchased the property, and has been living there since. In early August, 2005, the landlord served and the tenant received a 14 day notice terminating the tenancy for nonpayment of rent.

2. The tenant makes two basic arguments in defense to the landlord’s case. First, he argues that he does not owe rent and cannot be evicted for nonpayment of rent. Second, he argues that there are defective conditions at the premises. Because I find and rule that the tenant is correct as to his first argument, I need not reach the issue of conditions, except to the extent of the injunctive order issued below.

 

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3. The tenant had an arrangement with the former owner, whereby he was relieved of any obligation to pay rent in exchange for his services as a “super” (maintenance person) at the premises. When this landlord assumed ownership of the property, he sought to modify the preexisting arrangement with the tenant. Specifically, he proposed that the tenant continue to perform the “super” services, in exchange for a %2 reduction of the monthly rent obligation which would otherwise be $475 per month, rather than a total reduction. The tenant rejected this proposal, and “refused to pay rent,” as the landlord put it. The notice to quit for nonpayment of rent followed.

4. “A tenancy at will of property occupied for dwelling purposes shall not be terminated by operation of law by the conveyance, transfer or leasing of the premises by the owner or landlord thereof.” G.L. c. 186, s.13 (section 13). By operation of section 13, the tenant’s preexisting tenancy, and the terms thereof, survived the transfer of the property from the previous owner to the landlord herein. The landlord attempted understandably and reasonably to renegotiate the terms of that tenancy, so as to require the tenant to pay partial rent in addition to providing “super” services. That attempt at renegotiation being unsuccessful, however, there was never a meeting of the minds as to new terms for the tenancy, and the old terms remained in effect. Those old terms

did not include an obligation to pay rent, and the landlord’s attempt to terminate the tenancy for nonpayment of rent was therefore misplaced. The landlord’s remedy was to serve a rental period notice terminating the tenancy (with an offer of new terms if he so desired, as provided for under G.L. c. 186, s.12 [1]).

 

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[1] Such written notice may include an offer to establish a new tenancy for the same premises on terms different from that of the tenancy being terminated and the validity of such written notice shall not be affected by the inclusion of such offer.” G.L. c. 186, s.12.

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5. Receipt by the tenant of a proper termination notice is a procedural prerequisite to bringing a summary process case. Connors v. Wick, 317 Mass. 628, 631, 59 N.E.2d 277 (1945); Ryan v. Sylvester, 358 Mass. 18, 260 N.E.2d 148 (1970). No proper termination notice having been served in this case, the court is required by law to dismiss the case.

6. Injunctive Relief Evidence, including photographic evidence, was offered at trial indicating that there are a number of substandard conditions at the premises. The court’s Housing Specialist Department (HSD) is requested to inspect the subject premises, and report to the court on the existence of any conditions which pose an immediate threat to the health or safety of the occupants. The parties have agreed to an inspection for this purpose, and are ordered to cooperate with the HSD in scheduling and effectuating same. Upon receipt of the HSD’s inspection report, the court will issue appropriate orders, if any.

6. Order: Based upon the foregoing, the landlord’s claims are dismissed. The case shall remain open for purposes of the injunctive relief ordered above. After issuance of any orders which follow upon receipt of the HSD’s report, final judgment shall enter.

 

So entered this 27th day of September, 2005.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

GUY LABATE, Plaintiff v. SUE NOPPER, Defendant

 

WESTERN DIVISION

 

Docket # 05-SP-03603

Parties: GUY LABATE, Plaintiff v. SUE NOPPER, Defendant

Judge: /s/ Dina E. Fein

Associate Justice

Date: October 27, 2005

FINDINGS, RULINGS, AND ORDER

 

The above-captioned summary process (eviction) case came before the court for trial on October 20 and 24, 2005, after which the following findings of fact and rulings of law are to enter, as provided for under Mass. R. Civ. P. 52(a):

1. The plaintiff (landlord) owns the rental property located at 70 Franklin Street, Westfield. Effective September 1, 2004, the landlord rented Apartment 1R (the premises) at the property to the defendant (tenant), Sue Nopper. The agreed upon rent is $825 per month, and George Skea is a lawful occupant at the premises. On or around July 27, 2005 the landlord served and the tenant received a 14 day notice terminating the tenancy for nonpayment of rent. Rent totaling $3,190 is unpaid through October, 2005.

2. In defense and counterclaim to the landlord’s case, the tenant raises three claims: substandard conditions at the premises; destruction of the tenant’s property; and cross-metering. The court will address these claims in turn.

 

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3. Conditions: As documented in the photographic evidence as well as the Housing Specialist’s view report, there are presently a number of substandard conditions in existence at the premises. Based upon the credible evidence, including demeanor evidence, I find that several of these conditions existed at the inception of the tenancy, including missing smoke detectors,[1] inadequate heat

in the bathroom, a loose floor in the bathroom, inadequate caulking around the tub, and missing window and door screens. Other conditions, such as the cabinets in disrepair and the appliances stored on the exterior of the premises, are more likely than not attributable to the tenant.

4. The tenant’s allegations regarding conditions at the premises constitute a defense based upon breach of the implied warranty of habitability, for which the landlord is strictly liable. Berman & Sons v. Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979). It is usually impossible to fix damages for breach of the implied warranty with mathematical certainty, and the law does not require absolute certainty, but rather permits the courts to use approximate dollar figures so long as those figures are reasonably grounded in the evidence admitted at trial. Young v. Patukonis, 24 Mass.App.Ct. 907, 506 N.E.2d 1164 (1987). The measure of damages for breach of the implied warranty of habitability is the difference between the value of the premises as warranted, and the value in their actual condition. Haddad v. Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991).

5. I find that the fair rental value of the premises has been reduced by 10%, since the inception of the tenancy, as a result of substandard conditions. This average takes into account the seasonal nature of some of the conditions, such as inadequate heat and missing screens, as

 

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[1] It is not sufficient, as testified credibly by the landlord, to provide smoke detectors. The landlord is responsible for installing the smoke detectors, and insuring that they are in good working order.

 

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well as the fact that some conditions have been remedied, such as the missing smoke detectors. The tenant’s damages for the landlord’s breach of the warranty of habitability are therefore $825 (contract rent) x 10% = $82.50 x 14 months through October, 2005, = $1,155.

6. The tenant has failed to meet her burden of proof with respect to the claims of cross-metering, and destruction of property (tires). The landlord is therefore entitled to a ruling in his favor on these claims. Nor did the tenant establish that the landlord breached the covenant of quiet enjoyment or otherwise interfered with her rights in the way he responded to the incident concerning the neighbors and the note left for Ms. Nopper’s daughter.

7. Ruling and Order: Based upon the foregoing, and as provided for under G.L. c. 239, s.8A, the tenant shall have 10 days from the entry date of this order (below) to deposit with the Clerk’s office the sum of $3,190 (landlord’s rent claim) – $1,155 (tenants’ damages) = $2,035. If she does so, that sum shall forthwith upon request be released to the landlord, and judgment for possession shall enter in favor of the tenant. If the tenant fails to make the required deposit, judgment for possession and

$2,035 shall enter in favor of the landlord at the expiration of the 10 day period.

 

So entered this 27th day of October, 2005.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

DAVID J. SHUFELT, Plaintiff v. GENE WILSON, Defendant

 

WESTERN DIVISION

 

 

Docket # 05-SP-03955

Parties: DAVID J. SHUFELT, Plaintiff v. GENE WILSON, Defendant

Judge: /s/ Dina E. Fein

Associate Justice

Date: November 3, 2005

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned summary process (eviction) case came before the court for trial on November 2, 2005, after which the following findings of fact and rulings of law are to enter, as provided for under Mass. R. Civ. P. 52(a):

1. The plaintiff (landlord) owns the property located at 216 Robbin Avenue, Pittsfield, and rented the second floor apartment there to the defendant (tenant). The agreed upon rent for the premises is $400 per month. Rent totaling $1200 is unpaid through November, 2005. On or around September 15, 2005 the landlord served and the tenant received a 14 day notice terminating the tenancy for nonpayment of rent.

2. In defense to the landlord’s claim, the tenant raises interference with quiet enjoyment. A landlord is liable for breach of the covenant of quiet enjoyment if his acts or omissions cause a serious interference with the tenancy, or substantially impair the character and value of the premises. G.L. c. 186, s. 14; Simon v. Solomon, 385 Mass. 91, 102, 431 N.E.2d 556, 565 (1982). “In

analyzing whether there is a breach of the covenant, [the court] examine[s] the landlord’s

 

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conduct, and not his intentions.” Doe v. New Bedford Housing Authority, 417 Mass. 273, 285, 630 N.E. 2d 248, (1994). A landlord may not intend to violate a tenant’s right to quiet enjoyment, but may nevertheless do so when the interference is a “natural and probable consequence of what the landlord did, what he failed to do, or what he permitted to be done.” Blackett v. Olanoff, 371 Mass. 714, 716 (1977). Although a showing of malicious intent is not required, “there must be a showing of at least negligent conduct by a landlord.” Al-Ziab v. Mourgis, 424 Mass. 847, 851, 679 N.E.2d 528, 530 (1997) .

3. I find that the landlord has been aware for approximately one year of extremely disruptive behavior associated with the household of the tenant’s neighbor, the occupants of the second unit at the property. This behavior, which has included loud disturbances, frequent police visits, and threats made to the tenant, has significantly impaired the character of the tenancy. While the landlord has attempted to address this situation, including by filing a summary process action against the neighbor which was dismissed on procedural grounds, he has not been successful to date. A landlord, faced with circumstances such as those involved here, must take reasonable steps to remedy the problem. Reasonable steps include availing himself of all reasonable legal options, such as requesting injunctive relief. While the court recognizes that the landlord is not an attorney and is self-represented, a reasonable response to the circumstances at this property, which both parties describe as seriously out of control, necessarily includes insuring that all possible avenues have been pursued. In not so insuring, the landlord was “at least negligent,” and thereby breached the covenant of quiet enjoyment.

4. As a result of the landlord’s interference with quiet enjoyment, the tenant is entitled to an award of the greater of his consequential damages, or three months’ rent. Not having established consequential damages, the tenant is therefore awarded three months’ rent, or $1200.

 

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5. Conclusion and Order for Entry of Judgment: For the foregoing reasons, judgment for possession and $1200 (landlord’s rent claim) – $1200 (tenant’s damages) = $0, shall enter in favor of the defendant tenant.

 

So entered this 3rd day of November, 2005.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

DAVID POWERS, Plaintiff v. DARLENE MERCADANTE, Defendant

 

WESTERN DIVISION

 

Docket # 05SP03795

Parties: DAVID POWERS, Plaintiff v. DARLENE MERCADANTE, Defendant

Judge: /s/ Dina E. Fein

Associate Justice

Date: October 26, 2005

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned summary process (eviction) case came before the court for trial on October 20, 2005, after which the following findings of fact and rulings of law are to enter, as provided for under Mass. R. Civ. P. 52(a):

1. The plaintiff (landlord) owns a six-unit property located at 18 Forest Park Avenue, Springfield, where he occupies Apartment 1-L. In March, 2005, the landlord agreed to rent another unit at the subject property, Apartment 2-R (the premises) to the defendant (tenant), with whom he was then in a dating relationship. The rental rate is disputed, the tenant stating that it is $650 per month, and the landlord stating that it is $700 per month. The parties also dispute whether rent was waived for the month of April, 2005.

2. Based upon a preponderance of the credible evidence, including demeanor evidence, I find that the parties agreed to the rate of $650 per month, effective May, 2005, with April’s rent having been waived in exchange for the tenant giving the landlord several appliances. Although the landlord attempted to adjust the rent rate to $700 per month upon discovering early in the tenancy that cross-metering precluded the tenant from paying for her own electricity, the parties

 

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never reached agreement as to the higher figure and, by law, the landlord may not increase the rent unilaterally. The tenant pre-paid rent in the amount of $4000, representing payment for just over 6 months.

 

3. The Landlord’s Claim for Possession: On or around August 31, 2005, the landlord served and the tenant received a notice which stated, in part: “You have until September 30, 2005 to leave or I will go to court and seek permission to evict you.”[1] This notice was ineffective to terminate the tenancy under G.L. c. 186, s.12 (s.12), which provides in pertinent part as follows:

 

Estates at will may be determined by either party by three months’ notice in writing for that purpose given to the other party; and, if the rent reserved is payable at periods of less than three months, the time of such notice shall be sufficient if it is equal to the interval between the days of payment or thirty days, whichever is longer.

 

4. In this case, the original rent payment covered a period of over six months. While the parties would have been free at the end of the initial six month period to revise their agreement, and

bring it into conformity with the more typical practice of rent paid monthly, the original agreement had not expired at the time the notice was served. Under the only rent agreement ever reached between the parties, therefore, rent was not “payable at periods of less than three months.” As such, the landlord was required under s.12 to serve a three month notice in order to terminate the tenancy at will. Not having done so, the tenancy was not properly terminated, and the landlord’s claim for possession must be dismissed.

 

5. The Landlord’s Rent Claim: The landlord alleges that $200 is unpaid for September,

 

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[1] Although not offered into evidence, the notice is attached to the Summary Process Summons and Complaint, and there is no dispute that this is the notice which was served and received. There is dispute as to the precise timing of service, namely whether it was accomplished close to midnight on August 31 as testified by the landlord, or at 12:44 A.M. on September 1, 2005, as testified by the tenant. This dispute is immaterial, however, in light of the court’s ruling herein.

 

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2005, and $700 for October, 2005. As indicated above, however, the agreed upon rent rate was $650 per month. At that rate, rent totaling $3,900 has accrued since May, 2005, the first month for which rent was due. Therefore, and based upon the initial payment of $4,000, no rent is unpaid trough October, 2005.

6. The Tenant’s Counterclaims: The tenant raises four counterclaims: breach of the warranty of habitability as a result of substandard conditions at the premises; interference with quiet enjoyment arising out of substandard conditions (inadequate hot water) and “harassment;” retaliation; and unfair and deceptive trade practices in violation of Chapter 93a. The court will address these claims in turn.

7. Conditions: I credit the tenant’s testimony that there has been inadequate hot water at the premises since the inception of the tenancy, which constitutes a violation of the minimum standards of fitness for human habitation as set forth in Article II of the State Sanitary Code, 105 C.M.R. 410.00 et seq. The problem with hot water came to a head in August, when the tenant complained to the Department of Code Enforcement, and was remedied in or around mid-August, 2005. The tenant has not met her burden of proving the elements of a breach of warranty claim with respect to other conditions at the premises.

6. The tenants’ allegations regarding conditions at the premises constitute a defense based upon breach of the implied warranty of habitability, for which the landlord is strictly liable. Berman & Sons v. Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979). It is usually impossible to fix damages for breach of the implied warranty with mathematical certainty, and the law does not require absolute certainty, but rather permits the courts to use

approximate dollar figures so long as those figures are reasonably grounded in the evidence admitted at trial. Young v. Patukonis, 24 Mass.App.Ct. 907, 506 N.E.2d 1164 (1987). The measure of damages for breach

 

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of the implied warranty of habitability is the difference between the value of the premises as warranted (up to Code), and the value in their actual condition. Haddad v. Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991).

7. I find that the fair rental value of the premises was reduced by 10%, on average, as a result of inadequate hot water for the period April, 2005 through August, 2005. The tenant’s damages for the landlord’s breach of the warranty of habitability are therefore $650 (contract rent) x 10% = $65 x 5 months (through August, 2005) = $325.

8. Interference With Quiet enjoyment: The landlord was “at least negligent,” Al-Ziab v. Mourgis, 424 Mass. 847, 679 N.E.2d 528 (1997), addressing the insufficient hot water at the premises. The tenant testified credibly that she brought the problem with hot water to the attention of the landlord before she moved into the premises. The landlord delayed addressing the problem for a number of months, by his own testimony first replacing a valve on the water tank in July, 2005. The landlord’s response to the problem of insufficient hot water was not reasonable.

9. In addition, the landlord has telephoned the tenant late at night, delivered a notice to quit to her door in the middle of the night, and otherwise disturbed her peaceful use of the premises. This conduct, in combination with the landlord’s failure to respond reasonably to the hot water problem, amounts to interference with quiet enjoyment, as a result of which the tenant is entitled to the greater of three months’ rent or actual damages. G.L. c. 186, s. 14. Not having proved actual damages, the tenant is awarded three months’ rent, or $1950.

10. Retaliation: In contacting Code Enforcement for a legitimate purpose associated with insufficient hot water at the premises, the tenant engaged in activity protected under the law. G.L. c. 186, s.18. Within six months thereafter, the landlord sought to terminate her tenancy and

 

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evict her. This sequence of events gives rise to a legal presumption that the landlord’s conduct was in reprisal for the protected activity, a presumption which can be rebutted only upon clear and convincing evidence by the landlord that he had an independent basis for his action and would have done what he did, when he did, in the manner that he did notwithstanding the tenant’s protected activity. The landlord has not offered any substantive explanation as to why he sought to terminate the tenancy when he did, has not met his burden of rebutting the presumption of reprisal, and is therefore liable for between one and three months’ rent. I award the tenant one month’s rent, or $650.

 

11. Chapter 93a: The landlord’s breach of the warranty of habitability, interference with quiet enjoyment, and reprisal all constitute unfair and deceptive trade practices in violation of G.L. c.93a (Chapter 93a). The tenant is not entitled to duplicative damages, however. As the tenant’s breach of warranty claim arises out of insufficient hot water, for which she has already been awarded multiple damages under G.L. c. 186, s.14, and as the anti-reprisal statute allows for multiple damages by its own terms, no additional award is appropriate under Chapter 93a.

12. Order for Entry of Judgment: Based upon the foregoing, judgment shall enter in favor of the defendant tenant for possession and damages in the amount of $325 + $1950 + $650 = $2,625. At the election of the tenant, this sum may be applied towards future rent, at the rate of $650 per month.

 

So entered this 26th day of October, 2005.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

RIVERVIEW APARTMENTS, LLC, Plaintiff, v. HEATHER EDWARDS, Defendant

 

WESTERN DIVISION

 

 

Docket # 05-SP-01987

Parties: RIVERVIEW APARTMENTS, LLC, Plaintiff, v. HEATHER EDWARDS, Defendant

Judge: /s/ Dina E. Fein

Associate Justice

Date: July 13, 2005

FINDINGS, RULINGS AND ORDER

 

The above-captioned matter came before the court for trial on July 7, 2005, after which the following rulings and orders are to enter as provided for under Mass. R. Civ. P. 52(a):

1. The tenancy between the Plaintiff (landlord) and the Defendant (tenant) began on April 14, 2005 when the landlord purchased the property located 266 Locust St, Springfield, Massachusetts. The tenant resides at Apartment 36 of the building (the premises). The tenant’s rent is $550 per month and it is undisputed that rent totaling $1,650 is unpaid for the months of May, June and July are unpaid. On or around May 12, 2005, the landlord served and the tenant received a fourteen-day notice terminating the tenancy for nonpayment of rent.

2. In defense to the landlord’s case, the tenant raises substandard conditions at the premises. I find that a number of conditions have existed at the premises since the inception of the tenancy which violate the minimum standards of fitness for human habitation as set forth in the State Sanitary Code. The substandard

conditions include smoke and water damage from a fire at the premises, damaged wall plaster, a defective kitchen light, defective windows in the bedroom, kitchen, and living room, and various common area defects. Various of these conditions have been the subject of inspections and notices of violations by the City of

 

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Springfield Department of Code Enforcement (Code Enforcement), dating from February, 2004 and including a recent notice dated June 10, 2005. Although Code Enforcement has issued two compliance notices during the interim, it is clear from the notices in their totality, as well as the credible testimonial evidence at trial, that some conditions have persisted throughout and, by

definition therefore, since the inception of this tenancy. Both parties agree that, however, that as of the date of trial most of the conditions have been corrected.

3. Warranty of Habitability. The tenant’s allegations regarding conditions at the premises constitute a defense and counterclaim based upon breach of the implied warranty of habitability, for which the landlord is strictly liable. Berman & Sons v. Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979). It is usually impossible to fix damages for breach of the implied warranty with mathematical certainty, and the law does not require absolute certainty, but rather permits the courts to use approximate dollar figures so long as those figures are reasonably grounded in the evidence admitted at trial. Young v. Patukonis, 24 Mass.App.Ct. 907, 506 N.E.2d 1164 (1987). The measure of damages for breach of the implied warranty of habitability is the difference between the value of the premises as warranted, and the value in their actual condition. Haddad v. Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991).

4. I find that the fair rental value of the premises has been reduced by 20%, on average, for the period April 15, 2005 through July 15, 2005, due to the above listed conditions and violations of the State Sanitary Code. The tenant’s damages for the landlord’s breach of the warranty of habitability are therefore $550 (monthly rent) x 20% _ $110 x three months =$330.

5. Chapter 93a. The tenant is entitled to an award of multiple damages (not less than double nor more than treble) if the court finds that the landlord’s breach of the warranty of habitability was knowing and willful. “The `willful or knowing’ requirement of [G.L. c. 93a,] s.

 

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9(3), goes not to actual knowledge of the terms of the statute, but rather to knowledge, or reckless disregard, of conditions in a rental unit which, whether the [landlord] knows it or not, amount to violations of the law.” Montanez v. Bagg, 24 Mass.App.Ct. 954, 956, 510 N.E.2d 298, 300 (1987). The court may consider the “egregiousness” of the landlord’s conduct in determining whether to double or treble damages. Brown v. LeClair, 20 Mass.App.Ct. 976,

980, 482 N.E.2d 870, 874 (1985).

6. In failing to repair obviously substandard conditions (smoke and water damage, for example) until after the June 10, 2005 inspection report, the landlord has crossed the statutory threshold delimited by Chapter 93a and some multiplication of the tenant’s damages is appropriate. Under the circumstances of this case, the lesser statutory penalty of double damages is appropriate. As such, pursuant to G.L. c. 93a, I award the tenant double damages, or $660.00.

7. Interference With Quiet enjoyment. I do not find that the landlord has interfered with the tenant’s quiet enjoyment of the premises. Given the compliance letters from Code Enforcement, the tenant has failed to establish that the landlord was at least negligent in its conduct. Al-Ziab v. Mourgis, 424 Mass. 847, 679 N.E.2d 528 (1997). The landlord is therefore entitled to a ruling in it favor on this claim.

8. ORDER. For the above reasons, and pursuant to the requirements of G.L. c. 239, s. 8A, the tenant may, within ten days of the date of this order, deposit with the Clerk of this court the sum of $1,650 – $660 = $990.00. If she does so, the sum deposited is forthwith to be released to the landlord, and judgment for possession is to enter for the tenant. It the tenant fails to make the deposit required by this order, judgment is to enter for the plaintiff/landlord for possession and $990.00, at the expiration of the statutory ten day period.

9. Further, I order the landlord forthwith to complete the few outstanding repairs which

 

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remain to be done at the premises, including repair of the kitchen and bedroom light fixtures, and repair of the windows in the kitchen, living room, and bathroom.

 

So entered this 13th day of July, 2005.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

CHERYL ANN BEATTIE, Plaintiff v. ROBERT HOLLAND, Defendant

 

 

Docket # 05-SP-01999

Parties: CHERYL ANN BEATTIE, Plaintiff v. ROBERT HOLLAND, Defendant

Judge: /s/ Dina E. Fein

Associate Justice

Date: June 30, 2005

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned matter came before the court for trial on June 20, 2005, after which the following findings of fact and rulings of law are to enter, as provided for under Mass. R. Civ. P. 52(a):

1. The plaintiff (landlord) manages a rental cabin owned by her partner, Craig McAuslan, located at 365 Kinne Brook Road, Worthington (the premises).[1] Effective on or around April 1, 2005, the landlord rented the premises to Robert Holland (the tenant), pursuant to a written tenancy at will agreement. The agreed upon rent for the premises is $450 per month. On or around May 2, 2005 the landlord served and the tenant received a 14 day notice terminating the tenancy for non-payment of rent. Rent totaling $900 is unpaid through June, 2005. In defense and counterclaim to the landlord’s case, the tenant raises

 

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[1] Towards the conclusion of the trial, the tenant moved to dismiss for lack of the named plaintiff’s standing to bring the case. The court ruled at the time that the objection had been waived due to the tenant’s failure to raise it earlier.

 

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substandard conditions, and interference with quiet enjoyment.

2. Conditions: As testified credibly by the tenant, and reflected on the cabin inspection form completed and executed in April, two conditions existed at the inception of the tenancy which violated the standards set forth in the State Sanitary Code, 105 CMR 410.00 et seq, namely a defective stove, and a screen door in disrepair. A new stove was provided in early May. The screen door was repaired at some point by the tenant, and any ongoing disrepair is more likely than not attributable in significant part to the tenant’s dog.

3. The tenant’s allegations regarding conditions at the premises constitute a defense and counterclaim based upon breach of the implied warranty of habitability, for which the landlord is strictly liable. Berman & Sons v. Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979). It is usually impossible to fix damages for breach of the implied warranty with mathematical certainty, and the law does not require absolute certainty, but rather permits the courts to use approximate dollar figures so long as those figures are reasonably grounded in the evidence admitted at trial. Young v. Patukonis, 24 Mass.App.Ct. 907, 506 N.E.2d 1164 (1987). The measure of damages for breach of the implied warranty of habitability is the difference between the value of the premises as warranted (up to Code), and the value in their actual condition. Haddad v. Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991). I find that the fair rental value of the premises was reduced by 20% for the month of April. The tenant’s damages for the landlord’s breach of the warranty of habitability are therefore $450 (contract rent) x 20% = $90.

4. Interference With Quiet enjoyment: The tenant argues that the landlord has harassed him and his guests, specifically his girlfriend Alicia Eaton, to an extent which constitutes

 

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interference with quiet enjoyment. While the exchanges between

landlord and tenant have clearly been heated, they have been mutually so, and I do not find that the landlord’s behavior to the tenant was so out of bounds or so inconsistent with his behavior towards her as to amount to interference with quiet enjoyment.

5. In particular, the tenant argues that the landlord’s having served and/or threatened to serve (the record is not clear whether service was actually effectuated) a “no trespass” notice on Ms. Eaton constitutes interference with quiet enjoyment. There is no indication that a “no trespass” order was ever enforced as to Ms. Eaton. Nor does the record persuade the court that the landlord knew, or should have known, that an invited guest of the tenant is not a “trespasser” such that service of a no trespass notice is inappropriate. The court declines to rule that service of a “no trespass” notice constitutes per se interference with the covenant of quiet enjoyment, and I do not find that these facts establish that the landlord was “at least negligent.” Al-Ziab v. Mourgis, 424 Mass. 847, 851, 679 N.E.2d 528, 530 (1997).

6. Violation of the Consumer Protection Statute: In order to recover under G.L. c. 93a (the Consumer Protection Statute), the tenant must establish as a threshold matter that the landlord is in the business of renting residential housing. The evidence in this case, although not extensive, suffices to carry the tenant’s burden of proof on this matter. The cabin in question is not owner occupied and this is not the first tenant to whom it has been rented. The landlord’s written rental agreement uses legal terminology (“The time of each and every payment of rent is the essence of this Agreement;”) charges a security deposit; has a written inspection form akin to a statement of conditions; and provides in writing for apportionment of the propane level.

 

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7. The landlord’s conduct in renting residential premises with substandard conditions at the inception of the tenancy constituted a violation of G.L. c. 93a and the Attorney General’s regulation thereunder. The tenant is entitled to an award of multiple damages (not less than double nor more than treble) if the court finds that the landlord’s violation of Chapter 93a was willful or knowing. “The `willful or knowing’ requirement of s. 9(3), goes not to actual knowledge of the terms of the statute, but rather to knowledge, or reckless disregard, of conditions in a rental unit which, whether the [landlord] knows it or not, amount to violations of the law.” Montanez v. Bagg, 24 Mass.App.Ct. 954,, 510 N.E.2d 298, 300 (1987). The court may consider the “egregiousness” of the landlord’s conduct in determining whether to double or treble damages. Brown v. LeClair, 20 Mass.App.Ct. 976, 980, 482 N.E.2d 870, 874 (1985).

8. Here the landlord’s conduct with respect to conditions was in no way egregious. She did, however, have knowledge of the

defective stove and ripped screen at the inception of the tenancy, and rented premises with defective conditions knowingly. The tenant is therefore entitled to an award of double damages ($180, subject to a single recovery for breach of the warranty of habitability) plus attorney’s fees.[2]

9. Order: Pursuant to G.L. c. 239, s.8A, the tenant shall have ten days from the entry date of this order (below) to deposit with the Clerk’s office the sum of $900 (landlord’s rent

 

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[2] The written rental agreement includes provision for a “late charge” in the amount of $5 per day if the rent is paid after the 2nd of the month. This provision of the rental agreement violates G.L. c. 186, s.15B(1)(c), which allows for late charges only when rent is at least thirty days overdue, and amounts to a violation of Chapter 93a. As the tenant did not raise this claim at trial, it will not be considered herein. The landlord is cautioned, however, that her rental agreement does not comport with applicable law regarding late charges.

 

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claim) – $180 (tenant’s damages) = $720. If the deposit is made, the funds forthwith upon request shall be released to the landlord, and an order (but not a judgment) shall enter awarding possession to the tenant. If the deposit is not made, an order (but not a judgment) shall enter awarding possession and $720 to the landlord at the expiration of the ten day period.

10. Counsel for the tenant shall have ten days from the entry date of this order to file and serve her petition for attorney’s fees. The landlord shall have ten days thereafter in which to file and serve her opposition, if any. The court will rule on the papers, and final judgment shall enter thereafter.

11. The tenant is further ordered to maintain propane levels as required under the rental agreement, and not to hook up any propane tank other than that which was provided by the landlord.

 

So entered this 30th day of June, 2005.

 

 

 

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End Of Decision

 

HOUSING COURT

JOY C. IHEDIGBO, Plaintiff, v. JACQUELINE CARTER, Defendant

 

WESTERN DIVISION

 

 

Docket # 05-SP-02120

Parties: JOY C. IHEDIGBO, Plaintiff, v. JACQUELINE CARTER, Defendant

Judge: /s/ Dina E. Fein,

Associate Justice

Date: July 5, 2005

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

 

After hearing on June 23, 2005, the following findings, rulings and orders are to enter:

 

1. Jacqueline Carter (tenant) resides at 119 Elmore Avenue, Springfield, Massachusetts (the premises). Joy Ihedigbo (landlord) purchased the premises on April 11, 2005. The agreed upon rent is $750 per month.[1]

2. Claim for Possession. On April 11, 2005 the landlord mailed the tenant a letter stating the tenant had 30 days to vacate the premises. On May 1, 2005 the landlord mailed the tenant a letter stating that the tenant was to vacate the premises by May 31 “. Neither of these notices is adequate to terminate the tenancy.

3. G.L. c. 186, s. 12 states that, if the rental period is less than three months (as it was here), notice to terminate a tenancy at will is sufficient “if it is equal to the interval between the days of payment or thirty days, whichever is longer.” Additionally, the notice must terminate the tenancy on a day on which the rent becomes payable: “a notice to quit which breaks into the month and expires on

 

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[1] The landlord informed the tenant that the rent would increase to $850 upon her April 116 purchase. A landlord’s unilateral attempt to increase the tenant’s rent, however, does not

constitute an effective rental increase. As stated to the landlord at hearing, if an increase to the rental amount is not agreed upon by the tenant, the landlord must properly terminate the tenant’s tenancy and offer the tenant a new tenancy at the desired rent; until then, the terms of the prior tenancy control. Maguire v. Haddad, 325 Mass. 590, 91 N.E.2d 769 (1950).

 

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an intermediate day is invalid and insufficient.” Sanford v. Harvey, 65 Mass. (11 Cush.) 93, 95-96 (1853); see also Connors v. Wick, 317 Mass. 628, 59 N.E.2d 277 (1945).

4. The first notice sent by the landlord is insufficient to terminate the tenancy because it contains a termination date that is not a day on which the rent becomes payable. The second notice sent by the landlord is insufficient to terminate the tenancy because it contains a termination date that is less than one rental period from the date of the letter.[2] The landlord’s failure to terminate the tenancy properly requires that this Court dismiss the landlord’s claim for possession of the premises.

5. Claim for Rent. In the complaint, the landlord claims there is $2,238 in unpaid rent. This figure, however, assumes a rental figure of $850 per month and a pro rated amount of $538 for the period of April 11, 2005 and April 30, 2005. As stated at hearing and earlier in this order, the landlord’s attempt to increase the tenant’s rent to $850 per month was ineffective and the tenant’s rent has remained at $750 per month. I find that the tenant did make payment of April rent to the prior landlord and dismiss the landlord’s claim for the pro rated rent for the period of April 11, 2005 through April 30, 2005. The tenant concedes that she has not paid rent for May, 2005 or June, 2005, a total of $1,500, and this amount is properly due to the landlord.

6. Order. Pursuant to the above discussion, judgment is to issue in favor of the tenant/defendant for possession, and in favor of the landlord/plaintiff for $1,500.

So entered this 5th day of July, 2005.

 

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[2] Because the second termination notice is dated May 1, 2005 and the May rental period had already begun, a termination date of May 31, 2005 did not extend a full rental period, nor did it terminate the tenancy effective on a rent day.

 

 

 

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End Of Decision

 

HOUSING COURT

ATLAS PROPERTY MANAGEMENT, Plaintiff, v. ELISABETH MORALES, Defendant,

 

WESTERN DIVISION

 

Docket # 04-SP-05043

Parties: ATLAS PROPERTY MANAGEMENT, Plaintiff, v. ELISABETH MORALES, Defendant,

Judge: /s/ Dina E. Fein

Associate Justice

Date: January 25, 2005

Findings, Rulings and Orders For Entry of Judgment

 

The above captioned summary process (eviction) case came before the court on January 13, 2005, after which the following findings of fact and rulings of law shall enter:

1. The tenancy between Defendant (tenant)and Plaintiff (landlord) commenced as of May 16, 2003 when the landlord purchased the premises. The agreed upon rent was $450 per month through November of 2004 and $500 per month for December of 2004 and January of 2005. Rent totaling $3,450 is unpaid through January, 2005. On or around November 12, 2004 the landlord served and the tenant received a 14-day notice terminating the tenancy for non-payment of rent.

2. In defense to the landlord’s case, the tenant raises the issue of substandard conditions at the premises, and retaliation. The court will treat these claims in turn.

3. I find that numerous substandard conditions have existed since the landlord purchased the premises in May of 2003, including rotted floors, defective sink drains, a boarded window, numerous holes in the wall, infestations of both rodents and cockroaches, and a heating system that, at times, fails to provide sufficient heat. These conditions violate the minimum standards of fitness for human habitation as set forth in the State Sanitary Code.

4. I do not credit the landlord’s representation that the tenant refused access to the premises for

 

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the maintenance staff to make repairs. In addition, there is no basis for the landlord’s position that a request for repairs automatically constitutes permission by the tenant for the landlord to enter her apartment between the hours of 8:30 and 4:30. In the future, the landlord should provide 24 hours written notice of the need to enter the apartment to make repairs, and the tenant may not unreasonably withhold access.

5. The tenant’s allegations regarding conditions at the premises constitute a defense and counterclaim based upon breach of the implied warranty of habitability, for which the landlord is strictly liable. Berman & Sons v. Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979). “Where… the premises are uninhabitable from the inception of the tenancy, damages should run from that time without the necessity of a showing that the landlord knew or had notice of defects affecting their habitability.” McKenna v. Begin, 3 Mass. App. Ct. 168 (1975). It is usually impossible to fix damages for breach of the implied warranty with mathematical certainty, and the law does not require absolute certainty, but rather permits the courts to use approximate dollar figures so long as those figures are reasonably grounded in the evidence admitted at trial. Young v. Patukonis, 24 Mass.App.Ct. 907, 506 N.E.2d 1164 (1987). The measure of damages for breach of the implied warranty of habitability is the difference between the value of the premises as warranted, and the value in their actual condition. Haddad v.

Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991).

6. I find that the fair rental value of the premises was reduced by 25% for all months during the heating season ($112.50 per month for the months of May 16, 2003 through June 15, 2003, September 15, 2003 through June 15, 2004, and September 15, 2004 through November 30, 2004, and $125 per month for the months of December, 2004 and January, 2005) and 20% for all months not during the heating season ($90 per month for the months of June 15, 2003 through September 15, 2003, and June 15, 2004 through September 15, 2004). The tenant’s damages for the landlord’s breach of the warranty of habitability are [$450 (original contract rent) x 25% = $112.50 x 12.5 months = $1,406.25] + [$450 (original contract rent) x 20% = $90 x 6 months

 

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= $540] + [$500 (new contract rent) x 25% = $125 x 2 months = $250] = $1,406.25 + $540 + $250 = $2,196.25

7. At trial, counsel for the tenant requested an award under G.L. c. 186, s.14 for inadequate heat. The landlord is entitled to a ruling in its favor on this claim, as the tenant has failed to establish that the landlord was at least negligent with respect to the heat. See Al-Ziab v. Mourgis, 424 Mass. 847, 850, 679 N.E.2d 528, 530 (1997).

8. At trial the tenant also requested an award of multiple damages under Chapter 93a. Her answer and counterclaim, however, fail to refer to any claim under Chapter 93a. Even given the minimal requirements under Massachusetts law of notice pleading, it is simply unfair to subject the landlord to multiple damages when there was no indication in the record of such a claim. The tenant’s request for attorney’s fees is denied for the same reason.

9. Finally, the tenant alleges that the landlord is retaliating against her for calling “code enforcement.” The tenant testified credibly that she started withholding rent in May, 2004. Thereafter, she contacted the Holyoke Board of Health, which inspected the premises on October 27, 2004, and cited the landlord for numerous State Sanitary Code violations. Approximately two weeks later, the landlord served the tenant with a notice to quit, purporting to be for failure to pay rent dating back to June, 2004.

10. In withholding rent and contacting the Board of Health, the tenant engaged in protected activity under G.L. c. 239, s.2A and c. 186, s.18.[1] Within 6 months of that activity, the landlord sent them a notice purporting to terminate the tenancy for nonpayment of rent. Thereafter, the landlord initiated summary process, and sought eviction. These events give rise to a rebuttable presumption that the landlord’s acts were in reprisal against the tenant for her protected activity. Although the presumption does not apply, by the terms of the statute, to a notice to quit for

 

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[1] I am treating the tenant’s allegations of retaliation as both a defense under Chapter 239, s.2A, and a counterclaim under Chapter 186, s.18. The “Answer” section of the tenant’s pleading

alleges that “the landlord is trying to evict [her] for exercising [her] rights.” The “Counterclaim” section seeks damages for the “living conditions in the apartment” and “no repairs.” These allegations suffice to put the landlord on notice of both a defense and counterclaim for reprisal.

 

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nonpayment of rent, here the tenant was withholding rent, which is not the legal equivalent of nonpayment. In addition, the landlord did more than serve a notice terminating the tenancy; the landlord also pursued eviction without repairing the conditions of which it had been notified. This presumption can be rebutted “only by clear and convincing evidence that such action was not a reprisal against the tenant.” The landlord has not presented such evidence. On the contrary, the tenant had been withholding rent from the landlord since May or June of 2004.

That the notice to quit was delivered less than two weeks after the Board of Health inspection is a strong indication that it was, in fact, “taken against the tenant for the tenant’s act of commencing, proceeding with, or obtaining relief in any judicial or administrative action.”

11. As a result of the landlord’s reprisal, the tenant is entitled to an award of between one and three months rent. I am awarding two months rent, or $1,000. Attorney’s fees will not be awarded, however, as there is no indication in the pleading that the tenant is seeking to recover fees.

12. ORDER For the above reasons, and pursuant to the requirements of G.L. c. 239, section 8A, the tenant may, within ten days of the date of this order, deposit with the Clerk of this court the sum of $3,450 (landlord’s rent claim) – $3,196.25 (tenant’s damages for breach of the warranty of habitability[$2,196.25] + tenant’s damages for landlord’s retaliatory action [$1,000]) = $253.75. If she does so, the sum deposited is forthwith upon request to be released to the landlord, and judgment for possession is to enter for the tenant. It the tenant fails to make the deposit required by this order, judgment is to enter for the plaintiff/landlord for possession and $253.75 at the expiration of the statutory ten day period.

8. The fair market value of the rental unit will be reduced by 25% to $375 until all repairs are completed. The landlord is hereby ordered to make any repairs necessary to bring the premises into compliance with the Massachusetts State Sanitary Code. The rent shall revert to the contract rate of $500 per month on the first rental date following completion of repairs. Any dispute concerning repairs shall be brought to the attention of the Court’s Housing Specialist

 

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Department, the determination of which shall be binding upon the parties unless superceded by the Court.

 

So entered this 25th day of January, 2005.

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

BRENDA VELLA, TRUSTEE OF TWO SONS NOMINEE TRUST, Plaintiff v. CHRISTINE WILLIAMS, Defendant

 

WESTERN DIVISION

 

Docket # 05SP02506

Parties: BRENDA VELLA, TRUSTEE OF TWO SONS NOMINEE TRUST, Plaintiff v. CHRISTINE WILLIAMS, Defendant

Judge: /s/ Dina E. Fein

Associate Justice

Date: October 18, 2005

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned summary process (eviction) case came before the court for trial on October 12, 2005, after which the following findings of fact and rulings of law are to enter, as provided for under Mass. R. Civ. P. 52(a):

 

1. The plaintiff (landlord) owns the multi-family property located at 236 Main Street, Lee, having purchased same in August, 2004. When the landlord purchased the property, the defendant (tenant) was residing in Apartment #2 (the premises), pursuant to a Section 8 lease with the previous owner. The lease includes two provisions specifically relevant to this case. The first, at paragraph 12, provides that the landlord shall not terminate the tenancy except for “serious or repeated violations” of the lease; violation of federal, state, or local law; or “other good cause.” The second lease provision pertinent hereto, at paragraph 19, provides that “any and all” additional provisions to the lease must first be approved by the public housing authority,

 

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and that the lease and attachments (so approved) “represent the entire agreement between Owner and Tenant.”

2. On or around July 29, 2005 the tenant received a rental period notice terminating her tenancy (Exhibit 2). The notice identified three bases for the termination: “1. [s]erious or repeated violation of the terms and conditions of the lease; 2. [v]iolation of applicable state and local building codes; [and] 3. [o]ther good cause.” More specifically, the notice indicated that the tenant had a pet in violation of the written rules and regulations of the landlord; had unauthorized occupants at the premises; and did not maintain the premises in a neat and orderly condition which created a fire hazard. Finally, the notice indicted as follows: “the landlord is renovating the entire building in which you reside and the landlord intends to renovate your apartment which requires you to vacate same.”

3. Based upon the admissible evidence, I find and rule that the landlord has not established good cause to terminate the tenancy. The “rule” prohibiting pets at the premises was not adopted in conformity with the lease, and is therefore not binding. The landlord’s credible testimony that she has seen an individual leaving the premises in the morning and returning in the afternoon

on six to eight occasions over the past six months does not establish nor support a reasonable inference that there is an unauthorized occupant at the premises. Nor was the landlord able to testify based upon first hand observations as to the condition of the tenant’s apartment, but rather indicated candidly that her information was based upon hearsay statements by her husband.

3. The final ground alleged for the termination was that the landlord intends to renovate the apartment. While the need to renovate rental premises may indeed constitute good to terminate a Section 8 tenancy, in this case the landlord has not offered sufficient details to support such a

 

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conclusion. The landlord testified that it was her “choice” to renovate the apartment at this time, and that the apartment needed to be “updated.” As to the specific improvements she intended to undertake, however, the landlord testified only that the kitchen cabinet doors were falling, and that the toilet and bathroom fixtures needed repair. These conditions and the improvements associated therewith do not rise to the level of “renovation,” nor do they reasonable require that the tenant vacate.

4. The landlord should not misinterpret the ruling herein as indicating that the grounds alleged in the notice to quit are per se insufficient to establish good cause to evict. To the contrary, any one of the grounds, if proved by a preponderance of the evidence, would constitute good cause. The court is required, however, to make decisions based on admissible evidence, and it is in this regard that the landlord’s case foundered. The admissible evidence at this trial did not establish the grounds alleged in the notice to quit, and the court must rule accordingly. Perhaps additional evidence, offered through witnesses with first hand knowledge thereof, would mitigate for a different outcome.

5. Order for Entry of Judgment: For the reasons set forth above, judgment for possession shall enter in favor of the defendant tenant. Nevertheless, given the allegation of unsafe conditions as set forth in the notice to quit, the court’s Housing Specialist Department is requested to inspect the subject premises, and report to the court concerning any injunctive orders which may be warranted. Colloquy at trial suggested that the tenant may be in the process of vacating the premises. Counsel are requested to inform the Chief Housing Specialist of the court in the event that the tenant has vacated, obviating the need for the inspection ordered herein.

 

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So entered this 18th day of October, 2005.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

M & T BANK, v. LISA GRANT

 

 

WESTERN DIVISION

 

Docket # 05-SP-03932

Parties: M & T BANK, v. LISA GRANT

Judge: /s/Dina E. Fein

Associate Justice

Date: December 2, 2005

ORDER ON DEFENDANT’S MOTIONS FOR SUMMARY JUDGMENT, TO STRIKE, AND

TO CONSOLIDATE

 

The above-captioned matter came before the court for hearing on November 16, 2005, on the defendant’s motion for summary judgment. Upon consideration of the parties’ arguments and submissions, the following rulings and orders are to enter:

 

1. The Defendant (Grant) has moved for summary judgment under

two theories. First, that Plaintiff (M & T Bank) has not served Grant with a proper summons and complaint. Second, that the notice to quit served on Ms. Grant was not adequate to terminate the tenancy. For the reasons set forth below, Grant’s Motion for Summary Judgment is denied.

2. Material Undisputed Facts: On or around July 19, 2005, a “notice to quit and vacate premises” was served on and received by Ms. Grant. The notice was served on behalf of M & T Mortgage Corporation by its attorneys, Ablitt and Caruolo, P.C., and stated as follows: “This office represents the Owner of the [subject] property…” The notice purported to terminate Ms. Grant’s tenancy effective September 1, 2005.

 

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3. Beginning in early October, 2005, Ms. Grant was served with three different summary process summonses and complaints, indicating different trial dates and making inconsistent claims for rent arrears. All three of the complaints identified the Landlord/Owner as the plaintiff herein, M & T Bank. The complaint which was entered in this case summonsed Ms. Grant to trial on October 27, 2005, and sought $4,400 in unpaid rent. The Officer’s Return on that summons and complaint, of which the court takes judicial notice, certifies service “last and usual” and by first class mail, both on October 5, 2005. Ms. Grant acknowledges that the summons and complaint was “brought to [her] house,” but denies receiving a second copy of the complaint by mail. The complaint was entered on October 17, 2005.

4. Standard for Summary Judgment. Summary judgment is appropriate when no material facts are in dispute and the moving party is entitled to a judgment as a matter of law. Mass.R.Civ.P. 56(c); Highlands Ins. Co. v. Aerovox, 424 Mass. 226, 232, 676 N.E.2d 801 (1997). The moving party bears the burden of demonstrating affirmatively the absence of a triable issue of fact, and that it is entitled to a judgment in its favor as a matter of law. Pederson v. Time Inc., 404 Mass. 14, 16-17, 532 N.E.2d 1211 (1989). A moving party which does not bear the burden of proof at trial is entitled to summary judgment if it submits affirmative evidence, unmet by countervailing materials that either negate an essential element of the nonmoving party’s case or demonstrate that the nonmoving party has no reasonable expectation of proving an essential element of its case. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991). The opposing party cannot rest on the pleadings or on mere assertions of disputed facts to defeat the summary judgment motion. “If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact . . . .” Pederson, supra,

 

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404 Mass. at 17, 532 N.E.2d 1211. When reviewing a summary judgment record, the court credits facts in the light most favorable to the

nonmoving party. Bisson v. Eck, 430 Mass. 406, 407, 720 N.E.2d 784 (1990); Gray v. Giroux, 49 Mass.App.Ct. 436, 437, 730 N.E.2d 338 (2000).

5. Summonses and Complaints: Ms. Grant avers in her affidavit that she was not served with the operative complaint both by last and usual delivery and first class mail, as required under Uniform Summary Process Rule 2(b). The Officer’s Return certifying both forms of service is to the contrary, however, thereby creating a question of fact and precluding summary judgment.

6. Notice to Quit: In a summary process action, whether or not a tenancy has been properly terminated, is a threshold question for the Court. See Conners v. Wick, 317 Mass. 628, 59 N.E.2d 277 (1945); Ratner v. Hogan, 251 Mass. 163, 146 N.E. 249 (1925). Ms. Grant argues that the notice to quit and vacate the premises, served on behalf of M & T Mortgage Corporation, did not properly terminate her tenancy with M & T Bank, the owner of the property. M & T Bank’s argument in response is twofold, as follows: first, that M & T Mortgage Corporation is its subsidiary and authorized to act on its behalf; and, second, that Ms. Grant has taken inconsistent positions by maintaining that M & T Mortgage Corporation is the owner of the property in another case (Docket Number 05-CV-0314), and denying that M & T Mortgage Company is the owner in this case.

7. Summary process cases are governed by the Massachusetts Rules of Civil Procedure, except to the extent that those rules are inconsistent with the Uniform Summary Process Rules, applicable statutory law, or the jurisdiction of the court in which the summary process case is pending. Unif. Summ. Pro. R. 1. Motions for summary judgment are not addressed specifically by the Uniform Summary Process Rules, and must therefore conform to the requirements of

 

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Mass. R. Civ. P. 56, which provides in pertinent part as follows:

 

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein..When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Mass. R. Civ. P. 56(e).

 

8. By order entered on November 3, 2005, the court established a briefing and hearing schedule for dispositive motions. The pending motion for summary judgment came before the court for hearing on November 16, 2005, at which time the defendant filed a motion to strike the exhibits to the plaintiff’s objection to the

defendant’s motion for summary judgment, as not supported by affidavit, contrary to Mass. R. Civ. P. 56(e). Although the defendant’s motion to strike was in substance more akin to a reply memorandum, the court, in an abundance of consideration for the plaintiff’s procedural rights, extended an additional period of time for the plaintiff to file opposition thereto, and continued the matter for additional hearing on December 1, 2005. No written opposition to the defendant’s motion to strike was filed, and the plaintiff declined the additional hearing in writing.

9. The defendant’s motion to strike the exhibits to the plaintiff’s objection is allowed. The exhibits are not supported by an affidavit establishing their authenticity, and they are not in a form as would be admissible at trial. Particularly given the additional time which was extended for the plaintiff to bring its material in conformity with the Rules of Civil Procedure, there is simply no excuse for the failure to do so.

10. The court is left to determine whether, as a matter of law, the notice to quit served on behalf of M & T Mortgage Corporation was inadequate to terminate Ms. Grant’s tenancy with M

 

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& T Bank. Having stricken the plaintiff’s exhibits, there is no competent evidence before the court, in this case, establishing the relationship between M & T Mortgage Corporation and M & T Bank. This case does not exist in a vacuum, however. To the contrary, there have been several cases between these parties and/or arising out of the subject property. The court takes judicial notice of Department of Public Health v. M & T Mortgage Corp., Docket Number 04-CV-0604, in which the Director of Public Health, acting following contact by Ms. Grant, brought before the court an emergency request for alternative housing pending restoration of heat to the subject property. That case resulted in an order by the court, requiring M & T Mortgage Corporation to provide the requested relief, an order with which M & T Mortgage Corporation complied. This suffices to create a fact question on M & T Mortgage Corporation’s authority to act on behalf of M & T Bank, and Ms. Grant’s knowledge of that authority.

11. In making this ruling, the court is guided by the following two principles: First, that in ruling on a motion for summary judgment, all inferences are to be drawn in favor of the opposing party; and second, that the Uniform Summary Process Rules “shall be construed and applied to secure the just, speedy, and inexpensive determination of every summary process action.” Unif. Summ. Pro. R. 1. To be perfectly clear, the question of whether the tenancy has been properly terminated remains one for trial, as to which the plaintiff bears the burden of proof. This ruling should not be read as relieving the plaintiff of that burden, nor relaxing the standard of proof which will be required at trial.

12. Based upon the ruling herein, the court need not reach the plaintiffs second argument, regarding allegedly inconsistent positions taken by Ms. Grant.

13. Rulings and Orders: The defendant’s motion to strike is allowed. The defendant’s motion for summary judgment is denied. The

defendant’s motion to consolidate this matter with

 

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Grant v. M & T Mortgage Corp., 05-CV-314, is allowed. The consolidated case shall proceed to trial as scheduled on December 6, 2005.

 

So entered this 2nd day of December, 2005.

 

 

 

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End Of Decision

 

HOUSING COURT

RIVERBOAT VILLAGE ASSOCIATES v. JOHN PEETZ and JACQUELINE HART

 

WESTERN DIVISION

 

Docket # 06-SP-925

Parties: RIVERBOAT VILLAGE ASSOCIATES v. JOHN PEETZ and JACQUELINE HART

Judge: /s/Dina E. Fein

Associate Justice

Date: May 23, 2006

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned summary process (eviction) case came before the court for trial on May 15 and 17, 2006, after which the following findings of fact and rulings of law are to enter:

1. The plaintiff (landlord) owns and operates an apartment complex located on Riverboat Village Road, in South Hadley. Effective June 1, 2003, the landlord rented unit number 33 to the defendants (tenants), pursuant to a written lease. The contract rent for the premises was originally $780 per month, and increased to $790 per month effective July, 2005. On or around February 14, 2006 the landlord served and the tenants received a 14 day notice terminating the tenancy for non-payment of rent. Rent totaling $2,616 is unpaid through May, 2006.

2. In defense and counterclaim to the landlord’s case, the tenants raise breach of warranty of habitability and interference with quiet enjoyment, associated with a persistent mold problem in their apartment. The tenants also allege retaliation associated with the landlord’s conduct in

 

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having their car towed.[1] Based upon the evidence introduced at trial, including my assessment of the witnesses’ credibility, I find and rule as follows.

3. Shortly after the tenants moved into the apartment, they observed what appeared to be mold developing around a living room window. The tenants complained in writing to the landlord about that problem on November 25, 2003 at which time they were advised and agreed to “clean” the mold. The problem around the living room window recurred, and the tenants complained again in writing on January 13, 2004. After the second complaint, the landlord’s representative sprayed the affected area, which solved the problem temporarily, although it recurred in the spring.

 

4. In the fall of 2004 (approximately September or October), the tenants experienced a leak in their master bathroom from the apartment above. In November or December, 2004, a substance that appeared to be mold began to develop on the bathroom ceiling. The tenants called the management office several times over the course of that winter to complain about the problem. In response to one of the calls, the tenants were informed that there were a lot of work orders backed up, and that management would get to their situation eventually.

5. As of early April, 2005, the bathroom ceiling problem had not been addressed by the landlord. On April 7, 2005, the landlord’s maintenance staff conducted an annual inspection of the tenants’ apartment, and noted that the master bathroom ceiling needed “patch/paint.” No work order was processed in response to the notation at the annual inspection. On April 13, 2005, the tenants contacted to South Hadley Board of Health and reported the problem with their

 

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[1] The tenants did not plead a claim under Chapter 93a. As the landlord is entitled to notice of the nature and extent of the claims raised by the tenants, the court declines to amend the pleadings to allow the 93a claim to be advanced.

 

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bathroom ceiling, and the Board of Health contacted the landlord. On April 19, 2005, the landlord’s maintenance staff scraped, primed, and painted the bathroom ceiling. On April 21, 2005 the Board of Health inspected the bathroom, and observed “looks like mold was painted over and not taken care of first.” The landlord’s maintenance staff returned on April 22, 2005, and performed additional work to the ceiling. Although the landlord reported to the Board of Health that the repairs undertaken in April included treating the area with bleach, the work order form does not reflect that treatment, nor did the tenants smell bleach or other chemical treatments at the time.

6. The steps undertaken by the landlord in April, 2005 resolved the bathroom ceiling problem temporarily. In May, 2005, the tenants experienced a leak in their bathroom ceiling. This was more likely than not associated with a plumbing problem which saturated the walls in the bathroom of the apartment above the tenants. By June or July, the tenants’ bathroom ceiling began to “bubble,” and the mold reappeared. On July 7, 2005 the Amherst Housing Authority (AHA) inspected the apartment for purposes of the tenants’ Section 8 subsidy, and observed “small spot on bathroom ceiling is peeling.” On July, 26, 2005 the tenant John Peetz completed a statement of conditions for the apartment and noted as to the bathroom “ceiling needs to be painted again.” No work order was prepared nor were any repairs undertaken by the landlord in response to the AHA inspection or the tenant’s notation on the statement of conditions.

 

7. Between the summer of 2005 and January, 2006, the tenants contacted the landlord on several occasions and reported the recurring mold problem in their bathroom. On January 13, 2006, the tenant Jacqueline Hart informed the landlord that the tenants would be withholding rent until the mold problem was addressed. A work order was completed, and the landlord’s maintenance staff undertook repairs on February 8, 2006. Specifically, the area in question was

 

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treated with bleach, which the tenants could smell for several days. The mold problem has not recurred at the tenants’ apartment since the repairs in February.

8. The presence of mold in the tenants’ master bathroom had an adverse affect on their use of the premises. It was “ugly,” “smelled,” and “was disgusting.” The tenants used the second bathroom , and directed their guests to do so as well.

9. By memo dated April 7, 2005, the landlord notified the tenants and other residents at the complex that the parking lots would be swept on April 12 and 13, 2005, that they should remove their cars from the areas in question, and that cars which were not removed would be towed. The tenants owned two cars at the time, one of which was parked in the lot scheduled to be swept on April 13. The landlord’s staff attempted to contact the tenants to have the car moved. Failing in those efforts, the car was towed.

10. Breach of Warranty: I credit the tenants’ testimony that they complained about mold on their bathroom ceiling beginning in or around December, 2004. Even crediting the testimony by Ms. Becker and Ms. Mitchell that they don’t recall receiving those complaints from the tenants, that testimony does not rebut the tenants’ credible testimony that they made such complaints, testimony which is corroborated by the tenants’ understanding that the landlord’s work orders were “backed up” during this period.

11. In addition, Mr. Benitez’ testimony that he observed the thermostat in the bathroom to be off on one occasion does not suffice to support the inference that the tenants caused the mold problem themselves, even were there competent evidence before the court (which there is not) of a connection between the temperature in the bathroom and the development of mold. This conclusion is all the more reasonable given the tenants’ credible testimony that they limited their use of the affected bathroom.

 

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12. Finally, the AHA inspection report and statement of conditions in July, 2005 put the landlord on notice of a recurrence of the mold problem. Further notice was provided by the several phone calls to management which the tenants made between the summer of 2005 and January, 2006.

13. The tenants’ allegations regarding conditions at the premises constitute a defense and counterclaim based upon breach of the implied warranty of habitability, for which the landlord is strictly liable. Berman & Sons v. Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979). It is usually impossible to fix damages for

breach of the implied warranty with mathematical certainty, and the law does not require absolute certainty, but rather permits the courts to use approximate dollar figures so long as those figures are reasonably grounded in the evidence admitted at trial. Young v. Patukonis, 24 Mass.App.Ct. 907, 506 N.E.2d 1164 (1987). The measure of damages for breach of the implied warranty of habitability is the difference between the value of the premises as warranted, and the value in their actual condition. Haddad v. Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991).

14. I find that the fair rental value of the premises was reduced by 15%, on average, for the periods December, 2004 through April, 2005 and July, 2005 through mid February, 2006, as the result of mold at the premises. This average takes into consideration that the problem became worse over the course of the two periods in question. The tenants’ damages for the landlord’s breach of the warranty of habitability are therefore $780 (contract rent) x 15% = $117 x 5 months = $585 + $790 (contract rent) x 15% = $188.50 x 7.5 months = $888.75 = $1,473.75.

15. Interference with Quiet enjoyment: A landlord is liable for breach of the covenant of quiet enjoyment if his acts or omissions cause a serious interference with the tenancy, or substantially impair the character and value of the premises. G.L. c. 186, s. 14; Simon v.

 

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Solomon, 385 Mass. 91, 102, 431 N.E.2d 556, 565 (1982). “In analyzing whether there is a breach of the covenant, [the court] examine[s] the landlord’s conduct, and not his intentions.” Doe v. New Bedford Housing Authority, 417 Mass. 273, 285, 630 N.E. 2d 248, (1994). A landlord may not intend to violate a tenant’s right to quiet enjoyment, but may nevertheless do so when the interference is a “natural and probable consequence of what the landlord did, what he failed to do, or what he permitted to be done.” Blackett v. Olanoff, 371 Mass. 714, 716 (1977). Although a showing of malicious intent in not required, “there must be a showing of at least negligent conduct by a landlord.” Al-Ziab v. Mourgis, 424 Mass. 847, 851, 679 N.E.2d 528, 530 (1997) .

16. The tenants argue that the landlord’s failure to respond to the mold problem in their apartment amounts to interference with their right to quiet enjoyment. The landlord’s response is twofold: that it responded reasonably to the mold problem, and that the problem did not substantially impair the character and value of the premises.

17. There is no basis for concluding, and I do not conclude, that the landlord or any of its employees intended to harm the tenants or impair their tenancy. It is clear based upon the credible evidence offered at trial, however, that the landlord failed to respond to the tenants’ complaints reasonably promptly and reasonably effectively. The tenants complained on several occasions in the fall and winter of 2004-2005, and the landlord responded only after the tenants contacted the Board of Health. The tenants then complained again on several occasions beginning in July, 2005, and the landlord responded only when the tenants engaged in rent

withholding. The fact that work orders may have been “backed up” during one or both of these periods, while perhaps explaining the delays, does not excuse them. The landlord’s failure to respond reasonably promptly to the tenants’ complaints, coupled with the failure to respond

 

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appropriately to the annual inspection in April, 2005 (the master bathroom ceiling needed “patch/paint”), the AHA inspection in July, 2005 ( “small spot on bathroom ceiling is peeling”), and the statement of conditions on July, 26, 2005 (“ceiling needs to be painted again”) leads regrettably to the conclusion that the landlord was “at least negligent,” and thereby interfered with the tenants’ right to quiet enjoyment.

18. In addition, the mold interfered significantly with the tenants’ use of their master bathroom, which in turn significantly impaired the character and value of their tenancy. The landlord’s reliance on boilerplate language in the July, 2005 statement of conditions, is inapposite, as it did not reliably or accurately express the opinion of the tenants at the time

19. As a result of the landlord’s interference with their right to quiet enjoyment, the tenants are entitled to the greater of their actual damages or three times the contract rent, plus costs and attorney’s fees. G.L. c. 186, s.14. The tenants’ actual breach of warranty damages ($1,473.75) being less than their statutory damages, they are hereby awarded three months’ rent, or $2,370, plus costs and attorney’s fees.

20. Retaliation: I find and rule that the landlord did not have the tenants’ car towed in reprisal for any protected activity, but rather in order to have the parking lot swept, consistent with the memo of April 7, 2005. The landlord is therefore entitled to a ruling in its favor on this claim.[2]

21. Order: The tenants are not entitled to an award of duplicative damages, and are therefore awarded their damages under G.L. c. 186, s.14, or $2,370. Pursuant to G.L. c. 239, s.8A, the

 

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[2] The tenants did not argue that service of the notice to quit constituted reprisal. The court, therefore, need not and does not reach the question of whether service of a notice to quit for nonpayment of rent, following within 6 months of actual notice of rent withholding, gives rise to a statutory presumption of reprisal.

 

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So entered this 23rd day of May, 2006.

 

 

 

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End Of Decision

 

HOUSING COURT

MICHAEL A. DEEP v. JOHN BUCIER

 

Western Division

 

Docket # 07-SP-00993

Parties: MICHAEL A. DEEP v. JOHN BUCIER

Judge: /s/Dina E. Fein

Associate Justice

Date: 2007

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned matter came before the court for trial on May 16, 2007, after which the parties were extended time within which to submit memoranda of law. Upon consideration of the evidence admitted at trial and the parties’ written submissions, the following findings of fact and rulings of law are to enter:

1. Findings of Fact: The plaintiff (landlord) owns the manufactured housing community known as Berkshire Mobile Home Park. The plaintiff has been a professional landlord for thirty years, and owns 300 mobile home lots and 50 apartment units.

2. Effective November 1, 1993, the landlord rented Lot B4 to

the defendant (tenant). On December 2, 2002, the parties executed a written lease.[1] The lease provided that a late fee of $25 per month would be charged for any monthly rent or portion thereof that was more than 30 days past due. The lease also provided that “if this agreement constitutes a tenancy at will, rent may be increased by the park upon written notice to the resident at least 60 days in advance of the next monthly rent payment.”

 

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[1] See ruling below.

 

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3. The lease executed on December 2, 2002 established a contract rent of $252 per month. No subsequent lease has been executed by the parties. Since then, the landlord has attempted to increase the tenant’s rent three times. The first increase was to $257 per month, to which the tenant agreed. In or around June, 2004, the landlord attempted to increase the rent to $267 per month, to which the tenant did not agree. In or around December, 2004, the landlord attempted to increase the rent to $277 per month, to which the tenant did not agree. There is no written agreement between the parties increasing the rent beyond $252 per month.

4. The tenant has paid $257 per month for every month since July, 2004, except for the months of February and March, 2005, for each of which he paid $252. On 29 occasions since August, 2004, the landlord has imposed $25 late fees on the tenant as a result of the tenant’s failure to pay the increased monthly rents to which he had not agreed. The payments made by the tenant since August, 2004 have been applied at the first instance to unpaid rent at the increased rates of $267 and $277 per month, and accrued late fees. As a result, the tenant has had an unpaid balance since June, 2004, despite the fact that he has paid the full monthly rent to which he agreed for every month through March, 2007, with the exception of underpaying in the amount of $5 each for February and March, 2005, and further despite the fact that he made additional payments in January and October, 2006.

5. As of May 31, 2004, the tenant had a credit balance of $1.58. Since June 1, 2004, total rent in the amount of $8,993.42 has come due, at the last monthly rate to which the tenant agreed, $257 per month. Since June 1, 2004, the tenant has paid a total of $8,771.

6. Statutory and Regulatory Framework: Manufactured housing communities are

 

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governed by statute and the Attorney General’s regulations. G.L. c.140, section 32 P provides in pertinent part as follows:

 

All terms and conditions of occupancy must be fully disclosed in writing by the manufactured housing community owner to any prospective manufactured housing community resident at a

reasonable time prior to the rental or occupancy of a manufactured home lot. Said disclosure shall include, but shall not be limited to, the amount of rent, an itemized list of any charges or fees, the names and addresses of all the owners of the manufactured housing community, and the rules and regulations governing the use of the manufactured home lot and community. Said writing shall contain a bona fide, good faith offer to each new tenant and to each person renewing or extending any existing arrangement or agreement for occupancy of premises in a manufactured housing community for a rental agreement with a term of five years…

 

7. Under the Attorney General’s regulations, it is an unfair and deceptive practice for a manufactured housing community owner “to impose any interest or other monetary penalty for late rent, except pursuant to an occupancy agreement and in an amount reasonably intended to compensate the operator for the delay in payment, and provided that no such interest or penalty may be charged until payment is 30 days overdue.” 940 CMR 10.03(2)(I). It is also unlawful for the owner “to seek to recover a fee or charge that is not separately listed in the occupancy agreement.” 940 CMR 10.03(2)(k).

8. Rulings of Law: The landlord’s conduct violated the applicable statute and regulations in several ways. The lease executed by the parties in 2002 is internally inconsistent and inherently deceptive: it is entitled “Lease and Occupancy Agreement,” purports at paragraph 3 to create a tenancy at will, referred to itself in the body of the document as a lease, and was for the term December 1, 2002 to December 1, 2003. The terms created a one-year lease, which could not be transformed into a tenancy at will as attempted.

 

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9. In addition, the “Lease and Occupancy Agreement” purports to authorize the landlord to increase rent unilaterally in the case of a tenancy at will, upon 60 days notice[2]. This conflicts with the requirements of G.L. c. 186, s. 12 (which applies to manufactured housing communities pursuant to 940 CMR 10.03), and is void as such under G.L. c. 186, s.15A

10. Finally, the landlord seeks to recover rent in amounts greater than that disclosed on the last rental agreement, and assess late fees for the tenant’s failure to pay them. This is improper, irrespective of whether the December, 2002 document is a lease or a written tenancy at will agreement: as a lease, its terms would survive the expiration thereof until and unless new terms were mutually agreed upon; as a written tenancy at will, its terms would survive unless modified by operation of G.L. c. 186, s.12. The last rent mutually agreed upon was $257 per month, and rent beyond that was never established by executing a new lease, or terminating the existing tenancy and establishing a new one under G.L. c. 186, s.12.[3]

11. Unpaid Rent: The tenant owes $222.42 in rent. At the agreed upon rate of $257 per month, rent totaling $8,993.42 has accrued since June, 2004, and two $25 late fees were properly assessed in

February and March, 2005, for a total due since June, 2004 (when the tenant had a

 

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[2] The document actually reads “rent may be increased by the park management upon written notice to the resident at least 60 days in advance of the next monthly rent payment.” As rent is paid monthly, this notice standard is nonsensical.

 

[3] The tenant acknowledges an obligation to pay $257 per month, and I am therefore not reaching the question of whether this amount can properly be charged despite the fact that it is not established by a written agreement.

 

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credit balance of $1.58), of $9,043.42.[4] The tenant has paid $8,771 since June, 2004, and the landlord is therefore entitled to $272.42 in unpaid rent.

12. Chapter 93a: Charging rent beyond that last amount agreed to, and assessing late fees for failing to pay it constitute separate and distinct violations of law, each of which are actionable under Chapter 93a. The tenant’s damages for the landlord’s unfair and deceptive trade practice are the 29 late fees he has been wrongfully charged ($725); nominal statutory damages for the increased rent which was improperly charged ($25); and nominal statutory damages for the unfair and deceptive “Lease and Occupancy Agreement” ($25). The tenant’s total damages are $775.

13. In addition, the tenant is entitled to multiple damages (double or treble), if the landlord’s conduct was “willful or knowing.” G.L. c.93a, s.9(3). In this regard, the question for the court is not whether the landlord knew that his practices violated applicable statutes and regulations, but rather whether he knowingly or willfully engaged in the practices. See Montanez v. Bagg, 24 Mass. App. Ct. 954, 956, 520 N.E.2d 298 (1987). The court may consider the “egregiousness” of the landlord’s conduct in determining whether to double or treble damages. Brown v. LeClair, 20 Mass.App.Ct. 976, 980, 482 N.E.2d 870, 874 (1985).

14. The landlord’s conduct here clearly meets that “willful or knowing” standard, as he pursued rent and late charges to which he was not entitled up to and through a summary process action. In addition, I consider the landlord’s conduct to be “egregious.” Mr. Deep is a professional landlord. He has been in the rental property and mobile home park businesses for

 

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[4] The records submitted by the landlord suggest that on several occasions the tenant may have failed to pay the last agreed upon rate of $257 per month within 30 days of its due date. Due to the landlord’s practice of including unjustified late fees, unauthorized rental increases, and

other miscellaneous charges in the tenant’s account balance, however, the court would be required to subtract out each improperly assessed charge and then recalculate the correct rental charge for each month in order to determine whether any of these late payments justified imposition of late charges. It is not the court’s responsibility to do the math; that responsibility lies with the party who bears the burden of proof – here, the landlord.

 

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many years, and it is incumbent upon a landlord of his scale to know and follow the governing regulations. Mr. Deep seriously shirked his legal responsibilities in this regard, and I am therefore awarding treble damages, totaling $2,325, plus attorney’s fees and costs as provided by statute.

15. ORDER: Pursuant to G.L. c. 239, s.8A, an order, but not a judgment, shall enter, awarding the tenant possession and $2,325 (tenant’s damages) – $272.42 (unpaid rent) = $2,052.58. At the election of the tenant, this sum may be applied to future rent at the agreed upon rate of $257 per month. Counsel for the tenant has already filed his request for attorney’s fees. The landlord shall have 14 days from the entry date of this order to file his opposition, if any, to the tenant’s request for attorney’s fees, after which the court will rule on the papers, and final judgment will enter.

 

So entered this______day of_____2007.

 

 

 

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End Of Decision

 

HOUSING COURT

LAKEWOOD VILLAGE, LLC v. WAYNE CONNORS and ANY OTHER OCCUPANTS

 

WESTERN DIVISION

 

 

Docket # NO. 06-SP-00355

Parties: LAKEWOOD VILLAGE, LLC v. WAYNE CONNORS and ANY OTHER OCCUPANTS

Judge: /s/Dina E. Fein

Associate Justice

Date: March 23, 2005

ORDER ON PLAINTIFF’S MOTION TO SEVER AND/OR DISMISS COUNTERCLAIMS

 

After hearing on March 14, 2006, the following rulings and orders are to enter:

1. Lakewood Village, LLC (landlord) has brought this for-fault eviction against Wayne Connors (tenant), alleging the following violations of the lease: 1) failure to pay rent in a timely fashion; 2) cutting wires attached to the hot water tank; 3) reconnecting wires to the hot water tank; 4) failing to pay the costs of professionally reconnecting the hot water tank; 5) engaging in noisy or offensive conduct on four separate occasions;

6) exceeding the speed limit in the parking lot on two separate occasions; 7) refusing to allow the landlord access to make repairs on twelve separate occasions; and, 8) providing false or misleading information on the Rental Application. Additionally, the landlord alleges the tenant has acted in an unpleasant and rude fashion to representatives of the landlord.

2. In response to these allegations, the tenant seeks to raise the following counterclaims: 1) intentional or willful interference with the provision of utilities or other services to the premises; 2) direct or indirect interference with the tenant’s quiet enjoyment of the premises; 3) retaliation against the tenant for the exercise of the tenant’s rights; 4) breach of the warranty of habitability; 5) intentional or reckless infliction of emotional distress; 6) failure to provide

 

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adequate heat and/or hot water; and, 7) violation of G.L. c. 93a.

3. The landlord has moved to dismiss or sever the tenant’s counterclaims, arguing that G.L. c. 239, s. 8A precludes counterclaims in a summary process case which alleges fault by the tenant. The landlord’s motion frames two questions for the court’s consideration: may a tenant facing eviction in a for-fault summary process case retain possession based on counterclaims raised therein; and may counterclaims be raised in a for-fault summary process case, irrespective of whether the tenant is capable of retaining possession on the basis thereof.

4. G.L. c. 239, s. 8A (s. 8A) provides in pertinent part as follows:

 

In any action under this chapter to recover possession of any premises rented or leased for dwelling purposes, brought pursuant to a notice to quit for nonpayment 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 against the plaintiff relating to or arising out of such property, rental, tenancy, or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.

 

5. This court has previously construed s. 8A “as requiring a court to hear counterclaims in nonpayment and non-fault evictions and permitting it to hear counterclaims in other situations.” Ednson Realty Trust v. Constance Robinson & Alvin Robinson, Memorandum of Ruling on Motion to Dismiss Defendants’ Counterclaims, 88-SP-02752-C, pg. 3-4, Housing Court-Western Division, (11/21/88) (Abrashkin, J.). Put differently, there may be sound reasons to hear counterclaims in a for-fault eviction, notwithstanding that the specific counterclaims alleged may not operate to bar recovery of possession by the landlord. In deciding whether to allow or prohibit counterclaims in a case such as this, the court considers factors including the landlord’s right to expeditious determination of the summary process case, judicial

economy, and the avoidance of inconsistent adjudications.

5. It would appear from the record that a significant issue raised by the landlord’s case

 

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in chief as well as the tenant’s counterclaims, will be whether the tenant tampered with the hot water heater and, if so, whether that conduct was related to an inadequate supply of hot water and the parties’ plan for remediating that problem. The evidence offered in defense to the landlord’s case, at least as relates to the alleged tampering with the hot water, is likely to overlap significantly with that offered on the tenant’s claims for interference with utilities and inadequate hot water – whether those claims be adjudicated in this trial or a subsequent proceeding. The interests of judicial economy and avoiding inconsistent adjudications cut in favor of litigating all claims arising out of these events in a single trial.

6. While the court will adjudicate these claims in the upcoming trial, however, pursuant to s.8A they will not operate to defeat the landlord’s claim for possession, except to the extent indicated below.

7. The tenant’s defense and counterclaim for reprisal are brought pursuant to G.L. c. 239, s.2A and c. 186, s.18, respectively, and are not constrained by the limitations of s.8A. See Lawrence v. Osugwa and Ebhojiaye, Findings of Fact, Rulings of Law and Order of Judgment, 99-SP-00506, pg. 9, Housing Court-Boston Division, (7/21/99) (Winik, J.). The tenant’s allegation of illegal reprisal, in addition to being adjudicated in this case, may operate to defeat the landlord’s claim for possession assuming, of course, findings of fact and rulings of law consistent therewith.

8. Ruling and Order: The landlord’s motion to sever or dismiss the tenant’s counterclaims, is denied. The court will hear all claims in a single proceeding. The tenant’s defenses and counterclaims under s.8A will be adjudicated for purposes of damages, if any, only. The tenant’s defense and counterclaim for reprisal will be adjudicated for purposes of damages, if any, and may also operate, if proved, to defeat the landlord’s claim for possession.

 

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9. The Clerk’s office is requested to confer with counsel for the parties in order to determine whether adequate time has been set aside for trial, in light of the ruling herein.

 

So entered this 23rd day of March, 2005.

 

 

 

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End Of Decision

 

HOUSING COURT

JOHN TARKA v. ELIZABETH NICHOLLS

 

WESTERN DIVISION

 

Docket # 06-SP-00167

Parties: JOHN TARKA v. ELIZABETH NICHOLLS

Judge: /s/Dina E. Fein

Associate Justice

Date: January 31, 2006

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned summary process (eviction) case came before the court for trial on January 26, 2006, after which the following findings of fact and rulings of law are to enter:

1. The plaintiff (landlord) owns the duplex located at 317/321 Montcalm Street, Chicopee, one unit of which is rented to the defendant (tenant), pursuant to an oral tenancy at will agreement. The agreed upon rent for the unit is $550. Rent in the amount of $175 is unpaid through January, 2006. On or around December 22, 2005 the landlord served and the tenant received a 14 day notice

terminating the tenancy for nonpayment of rent.

2. The landlord purchased this property approximately four years ago, at which time the tenant was already living there, and had been for several years. The tenant testified credibly that her original rental agreement included the use of a one-car garage. Although the landlord has been trying for some time to formalize new tenancy terms with the tenant, no new agreement has been reached, and the terms of the previous agreement therefore continue to bind these parties,

 

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including the tenant’s right to exclusive use of the garage space.

3. At some point during the summer of 2005, the tenant brought a boat and trailer to the premises, which she stored in a parking space behind the building, not in the garage. The landlord, through her son, requested that she remove the boat, which she did. She soon brought another boat to the premises, however, this one being small enough to store inside the garage, which she did. The landlord notified the tenant by letter of his request that she remove the boat and intention to have it towed if she failed to do so. The tenant did not remove the second boat, the landlord had it towed, and the tenant was required to pay $175 to the towing company in order to retrieve the boat. Feeling justified in so doing, the tenant then withheld $175 from her monthly rent, and hence the arrearage at the time of trial.

4. The tenant’s right to withhold the $175 turns on the question of whether the landlord was authorized to have the boat towed. On the specific facts presented in this case, I conclude that he was not. I am satisfied that the landlord was acting in good faith, and believed himself authorized, as the property owner, to have the boat removed. The deciding factor in this case, however, is that the boat in question was stored inside the garage. The tenant had the exclusive right to use of the garage, and the landlord had no more right to have a boat towed from within its confines than he would to remove bicycles, baby strollers, or other items stored therein. The landlord’s sense of the situation may well have been informed by his earlier interactions with the tenant concerning the first boat, stored outside the garage. While this history may explain the landlord’s frustration, it does not justify his entering the garage and having a boat removed from therein.

5. Order for Entry of Judgment: Based upon the foregoing, I rule that the tenant was justified in withholding $175. Judgment for possession shall therefore enter in favor of the

 

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defendant.

 

So entered this 31st day of January, 2006.

 

 

 

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End Of Decision

 

HOUSING COURT

JULIO ROSADO v. PEDRO RIVERA

 

WESTERN DIVISION

 

Docket # 06-SP-1090

Parties: JULIO ROSADO v. PEDRO RIVERA

Judge: /s/Dina E. Fein

Associate Justice

Date: August 16, 2006

ASSESSMENT OF DAMAGES

 

After hearing on July 31, 2006, at which the plaintiff (landlord) failed to appear, the defendant’s (tenant’s) second motion to compel was allowed, the landlord’s rent claim was dismissed, and a default was entered on the tenant’s counterclaims. With notice to the landlord, the tenant’s counterclaims came before the court on August 11, 2006, for hearing on damages, at which time the landlord did not appear. Based upon the evidence admitted at hearing, damages are assessed as follows:

1. Breach of Warranty: The fair rental value of the subject premises was reduced by 50% for the period October, 2005 through April, 2006. Damages are awarded in the amount of $400 (contract rent) x 50% = $200 x 7 months = $1,400.

2. Violation of G.L. c. 186, 04 – Insufficient Heat: The tenant’s actual damages, including emotional distress, exceed three months’ rent. The tenant is therefore awarded actual damages for insufficient heat, in the amount of $2,000, plus attorney’s fees and costs.

 

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3. Violation of G.L. c. 186, s.14 – Illegal Lock-Out: The landlord changed the locks at the premises without authorization from the court to do so, as a result of which the tenant and his grandson were homeless for 87 days, and slept in their car. The tenant is awarded actual damages including emotional distress in the amount of $15,000, plus attorney’s fees and costs.

4. Retaliation: The tenant is awarded three months’ rent, or $1,200, plus attorney’s fees and costs, as damages for the landlord’s retaliation.

5. Chapter 93a: The landlord’s violations of Chapter 93a were knowing, willful, and egregious. The tenant’s damages are therefore trebled under Chapter 93a, and the tenant is awarded $1,400 + $2,000 + $15,000 + $1,200 = $19,600 x 3 = $58,800, plus attorney’s fees and costs.

6. Intentional and Negligent Infliction of Emotional Distress: As the tenant has been awarded emotional distress damages, he is not entitled to a separate award of damages pursuant to these causes of action.

7. Order: An order, but not a judgment, shall enter, awarding the defendant tenant damages in the amount of $58,000, plus attorney’s fees and costs. Counsel for the tenant shall have ten days within which to file and serve her petition for attorney’s fees and costs, after which the court will rule on the papers, and final judgment

shall enter.

 

So entered this 16th day of August, 2006.

 

 

 

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End Of Decision

HOUSING COURT

DAVENPORT MANOR V. BRIAN McNEIL

 

WESTERN DIVISION

 

Docket # 06-SP-01975

Parties: DAVENPORT MANOR V. BRIAN McNEIL

Judge: /s/Dina E. Fein

Associate Justice

Date: August 9, 2006

RULING AND ORDER ON DEFENDANT’S MOTION TO DISMISS OR FOR SUMMARY JUDGMENT

 

1. The above-captioned summary process (eviction) case is before the court on the defendant’s (“tenant’s”) motion to dismiss or for summary judgment. For the reasons set forth herein, the tenant’s motion is allowed.

2. The material facts are not in dispute, and may be summarized briefly as follows. The tenant rents an apartment in a six-unit building now owned by the plaintiff (“landlord”). On or around November 5, 2005 the landlord served and the tenant received a “notice to vacate” directed to all tenants at the subject property, which stated that the residential units would be converted to condominiums; that the existing tenants would have a “first right to refusal;” that the sales prices for the units would range from $100,000 to $145,000; and asking that the tenants vacate by January 1, 2006. On or around January 12, 2006, the landlord served and the tenant received a notice which purported to terminate the tenancy effective February 28, 2006.

3. The landlord acknowledges that it has not complied with the Massachusetts

 

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Condominium Conversion Law, St. 1983, c. 527 (“Chapter 527”). In opposition to the tenant’s motion to dismiss or for summary judgment, however, the landlord argues that Chapter 527 is no longer in effect, having been nullified when the Legislature repealed rent control.

4. Chapter 527 was enacted by the Legislature in 1983, and “provides certain protections to tenants occupying apartments in buildings which are either undergoing condominium conversion or are converted but as yet unsold as condominiums.” Greater Boston Real Estate Board v. City of Boston, 428 Mass. 797, 798, 705 N.E.2d 256, 257 (1999). Section 4 of Chapter 527 imposes minimum statewide requirements on the owner of a residential building intended for conversion to condominiums, including notice to tenants of their right to purchase the unit, their right to relocation benefits, and their right to an extension of their rental agreements. Section 2

of Chapter 527 permits cities and towns to impose different requirements than those specified in Section 4, upon vote by their governing bodies.

5. In 1994, the Legislature adopted St. 1994, c. 368. Ultimately codified at G.L. c. 40P,[1] the statute provides in pertinent part that “[n]o city or town may enact, maintain or enforce rent control of any kind,” and defines “rent control” as “any regulation that in any way requires below-market rents for residential properties,” including condominium conversion. The landlord relies on this language in arguing that Chapter 40P nullifies Chapter 527. Affording the language its plain meaning, however, as the court is required to do, Boylston v. Commissioner of Revenue, 434 Mass. 398, 405, 749 N.E.2d 684, 689 (2001), it is clear that the landlord’s interpretation is misplaced. Chapter 40P prohibits activity by cities and towns, whereas the tenant is invoking

 

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[1] The statute repealing rent control was initially codified as G.L. c. 400, and re-designated as Chapter 40P by St. 1997, c. 19, s. 10.

 

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Section 4 of Chapter 527, the statewide provisions. In addition, Chapter 40P does not expressly nullify Chapter 527, and the court is ” `loath to find that a prior statute has been superseded in whole or in part in the absence of express words to that effect or of clear implication.’ ” Corn. v. Katsirubis, 45 Mass.App.Ct. 132,135, 696 N.E.2d 147, 149 (1998), quoting Dedham Water Co. v. Dedham, 395 Mass. 510, 518, 480 N.E.2d 1016 (1985).

6. Finally, it should be noted that the SJC’s reasoning in Greater Boston Real Estate Board v. City of Boston, 428 Mass. at 257, assumed the ongoing viability of Chapter 527.

7. ORDER: Based upon the foregoing, and in light of the landlord’s acknowledged failure to comply with Chapter 527, the tenant’s motion to dismiss or for summary judgment is allowed. Judgment for possession shall enter in favor of the defendant tenant.

 

So entered this 9th day of August, 2006.

 

 

 

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End Of Decision

 

HOUSING COURT

MOUNTAIN VIEW v. JUDY KRYNICKI and MARGOT GATES

 

WESTERN DIVISION

 

Docket # 06-SP-01718

Parties: MOUNTAIN VIEW v. JUDY KRYNICKI and MARGOT GATES

Judge: /s/Dina E. Fein

Associate Justice

Date: August 10, 2006

ORDER ON PLAINTIFF’S MOTION FOR ISSUANCE OF EXECUTION

 

The above-captioned matter came before the court for hearing on the plaintiff’s (landlord’s) motion for issuance of the execution, after which the following order shall enter. 1. This is a for cause summary process (eviction) case, in which the plaintiff (landlord) seeks to evict the defendants (tenants) from the mobile home park for violation of park rules, particularly as regards pets. After trial, I entered judgment for possession in favor of the landlord, but stayed issuance of the execution conditioned upon compliance with various terms by the tenants. Based upon the evidence offered at hearing, including my assessment of the witnesses’ credibility, I find that the tenants have violated the terms of the stay. Specifically, the tenants have not restrained their dogs at all times, Ms. Krynicki has had unnecessary and confrontative contact with Mr. Cherrette, and Ms. Krynicki has caused disturbances at the premises by driving erratically and

being in common areas with open containers of beer. The

 

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landlord’s motion for issuance of the execution (eviction order) is therefore allowed.

2. There shall be a stay on the use of the execution, conditioned upon the tenants complying with the terms of this order. The dogs are to be restrained at all times. When being walked in commons areas, the dogs are to be on short leashes. Otherwise, the dogs are to be inside the tenants’ home, or within their fenced-in yard.

3. The tenants are prohibited from being in common areas at the park with open containers of alcohol, and are prohibited from driving in the park if they have been consuming alcohol.

4. The tenants are not to have any contact with Mr. Cherrette except in the event of a bona fide emergency. All non-emergency communication with the landlord shall be directed to its management office.

5. This matter is scheduled for further hearing on September 6, 2006 at 9:00 a.m. If the court determines at that hearing that there has been a violation by the tenants of any of the conditions set forth in this order, the landlord will be permitted to use the execution.

 

So entered this 10th day of August, 2006.

 

 

 

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End Of Decision

 

HOUSING COURT

Mountain View MHC LLC v. Judy Krynicki & Margo Gates

 

WESTERN DIVISION

 

Docket # 06SP01718

Parties: Mountain View MHC LLC v. Judy Krynicki & Margo Gates

Judge: /s/DINA E. FEIN

Associate Justice

Date: June 21, 2006

ORDER

 

After hearing on June 15, 2006, at which both parties were present, the following order is to enter:

 

1. Judgment is to enter for the plaintiff (landlord) for possession and court costs.

2. A stay on the issuance of the execution (eviction order) is granted, conditioned upon the tenants’ compliance with all of the terms set forth in this court order.

3. The defendants are ordered to fill out all paperwork necessary for registration of their dogs with Mountain View MHC, LLC forthwith.

4. The tenants are ordered not to permit their dogs to roam freely around the subject premises.

5. The dogs are to be restrained or leashed while on the subject premises at all times.

6. The tenants are ordered not to cause any disturbances at the subject premises.

7. The dogs’ licenses and immunization records are to be kept current at all times.

8. A ruling shall enter in favor of the landlord on the tenants’ counterclaims.

 

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9. Mr. Charette and the tenants are prohibited from having any contact with each other, except in the event of a bona fide emergency. Mr. Charette and the tenants may have contact only in order to fulfill their landlord/tenant obligations.

10. This court order is without prejudice to the landlord’s right to pursue other court action as may be necessary.

11. This matter is scheduled for review on June 29, 2006 at 2:00 P.M..

12. The tenants are ordered to produce all documentation of rent payments from January 1, 2005 to the current date at the scheduled review on June 29th.

 

So entered this 21st day of June, 2006.

 

 

 

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End Of Decision

 

HOUSING COURT

MAURA KRUSE-NOONAN and JEROME NOONAN v. YAAKOV SHEMESH, ANDREA SHEMESH, DANIEL PLOTKIN, NORMAN MICHAELS, DAPHNE OTTANI, ELLEN FREYMAN, and KATE BEAN,

 

WESTERN DIVISION

 

Docket # 04-CV-00302

Parties: MAURA KRUSE-NOONAN and JEROME NOONAN v. YAAKOV SHEMESH, ANDREA SHEMESH, DANIEL PLOTKIN, NORMAN MICHAELS, DAPHNE OTTANI, ELLEN FREYMAN, and KATE BEAN,

Judge: /s/Dina E. Fein

Associate Justice

Date: June 21, 2005

RULINGS AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

 

The above-captioned case came before the court for hearing on the parties’ cross-motions for summary judgment. Upon consideration of the parties’ submissions and arguments, the court rules and orders as follows:

1. Introduction: Pursuant to G.L. c. 40A, s. 17, the plaintiffs Maura Kruse-Noonan and Jerome Noonan (the Noonans) appeal from a decision of the Longmeadow Zoning Board of Appeals (ZBA) granting a special permit to the defendants Yaakov Shemesh and Andrea Shemesh (the Shemeshes). Defendants Daniel Plotkin, Norman Michaels, Daphne Ottani, Ellen Freyman, and Kate Bean are members of the ZBA. The parties have filed cross-motions for summary judgment.

2. Undisputed Material Facts: The Town of Longmeadow (Longmeadow) has adopted a zoning by-law (the by-law). The by-law provides for a minimum 15 foot set-back from side lot lines in residential zones. The Shemeshes and the Noonans are immediate neighbors in

 

 

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Longmeadow, residing respectively at 112 and 116 Benedict Terrace. The Shemeshes’ home is located four feet from the side lot line dividing their parcel from the Noonans, and is therefore considered a pre-existing “non-conforming building” under the by-law.[1]

3. On or around May 2, 2004, the Shemeshes applied for a special permit to construct an addition to the rear of their home. The proposed two story addition would continue into the Shemeshes back yard at four feet from the side lot line shared by the Noonans, and would measure 14 feet deep, 28.5 feet wide, and 24 feet high.

4. On June 22, 2004, the ZBA convened a public hearing to consider the Shameshes’ special permit application. Jerome Noonan appeared and objected to the proposed special permit. By decision entered on June 23, 2004, the ZBA approved the Shemeshes’ special permit application. The decision included the following two statements, characterized as “findings:”

 

…pursuant to M.G.L. 40A, Section 6, that the proposed 14 foot by 28 foot-8 inch, 2-story addition, to be constructed on the rear, northerly side of the dwelling known and designated as 112 Benedict Terrace…would be more intensive than the existing nonconforming structure…

 

And

 

…that the extension of the nonconformity…would not be substantially more detrimental to the neighborhood than the existing nonconformity.

 

5. The Statute: G.L. c. 40, s.6 (Section 6) provides in pertinent part as follows:

 

Except as hereinafter provided, a zoning ordinance or by-law shall not apply to structures or uses lawfully in existence or lawfully begun, or to a building or special permit issued before the first publication of notice of the public hearing on such ordinance or by-law required by section five, but shall apply to any change or substantial extension of such use, to a building or special permit issued after the first notice of said public hearing, to any reconstruction, extension or structural change of such structure and to any alteration of a structure begun after the first notice of

 

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[1] Although the plaintiffs take issue with the ZBA’s failure to describe the way in which the Semeshes’ house is nonconforming, they do not seriously contest that it is in fact non-conforming.

And

 

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said public hearing to provide for its use for a substantially different purpose or for the same purpose in a substantially different manner or to a substantially greater extent except where alteration, reconstruction, extension or structural change to a single or two-family residential structure does not increase the nonconforming nature of said structure. Pre-existing nonconforming structures or uses may be extended or altered, provided, that no such extension or alteration shall be permitted unless there is a finding by the permit granting authority or by the special permit granting authority designated by ordinance or by-law that such change, extension or alteration shall not be substantially more detrimental than the existing nonconforming use to the neighborhood. (Emphasis added).

 

6. It involves no special insight of this court to observe that the language of Section 6 could well be less convoluted. Nevertheless, and fortunately for this writer, the appellate courts have ably parsed that language and formulated a definitive construction precisely on point to this case, as follows:

 

When applications for expansion of residential structures are at issue, the statute requires a two-step analysis. Step one focuses on whether the proposed addition or expansion will increase the structure’s nonconforming nature. If the answer is no, the applicant is entitled to build. If the answer is yes, the applicant may build only if he or she obtains a special permit issued by the permit granting authority upon a finding that the proposed addition will not be substantially more detrimental to the neighborhood than the existing nonconforming structure. Britton v. Zoning Bd. of Appeals of Gloucester, 59 Mass. App. Ct. 68, 71-72, 794 N.E.2d 1198, 1201-1202 (2003), citing Fitzsimonds v. Board of Appeals of Chatham, 21 Mass. App. Ct. 53, 55, 484 N.E.2d 113, 115 (1985).

 

7. In other words, by statute an extension to a pre-existing nonconforming structure which does not increase the nonconformity is exempt from the by-law. An extension which does increase the nonconformity is allowed only by special permit, and then only upon a determination by the ZBA that the extension would not be substantially more detrimental to the neighborhood than the existing nonconformity.

8. The Bylaw: At Article IV, section El, the by-law provides in pertinent part as follows

 

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with respect to nonconforming structures:

 

…A pre-existing non-conforming use or structure may not be extended, altered or changed except by a special permit from

the [ZBA]. The proposed extension, alteration or change of a non-conforming use or structure must meet the following criteria:

1. The proposed extension, alteration or change must not increase the non-conformity.

2. If the proposed extension, alteration or change complies with Section(l), the ZBA must determine whether or not the proposed extension, alteration or change would be substantially more detrimental to the neighborhood than the existing use or structure.

 

9. The Problem: All parties seems to agree that the Longmeadow by-law sets forth a different standard for dealing with extensions to nonconforming structures than that required by statute. The by-law (which necessitates a special permit for any extensions), would require the property owner to establish both that the extension does not increase the nonconformity, and that the extension would not be substantially more detrimental to the neighborhood. As indicated above, in the event of the former – i.e. when the extension does not increase the nonconformity – the statute provides that a by-law “shall not” apply. There are a number of deficiencies in the record before the court, however, which preclude a determination as to whether the inconsistency between the statute and the by-law bears on this case and/or whether the decision was otherwise proper.

10. As a threshold matter, the ZBA did not make a specific finding as to whether the Shameshes’ proposed extension would, or would not, increase the nonconformity of their structure. If the latter, the by-law should not apply (at least according to statute), and the Shameshes would not need a special permit. The ZBA’s “finding” that the proposed addition “would be more intensive than the existing nonconforming structure” may have been intended as a statement that the addition would increase the nonconformity, but the use of the term

 

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“intensive” further muddies the analytic waters in an area already more than sufficiently murky by virtue of the statute and by-law alone.[2]

11. To the extent that the ZBA did intend its statement that the addition would be more “intensive” to signify that it would increase the nonconformity, the decision violates the by-law provision which allows for an extension only if does not increase the nonconformity. At oral argument, the ZBA seemed in fact to embrace this position, recognizing the inconsistency and preferring, apparently, to violate its own legislative work product rather than that of the Great and General Court. This lead, however, to a decision in direct conflict with the governing by-law, a result which exemplifies regrettably well the meaning of “arbitrary.”

12. Further complicating matters, the ZBA’s “findings” are wholly devoid of any predicate facts. The ZBA was required to make specific findings of fact as a foundation for its decision, see

Josephs v. Board of Appeals of Brookline, 362 Mass. 290, 285 N.E.2d. 436 (1972); Werner v. Board of Appeals of Harwich, 2 Mass.App.Ct. 647, 318 N.E.2d 483 (1974); Pierce v. Board of Appeals of Carver, 2 Mass.App.Ct. 5, 307 N.E.2d 587 (1974), and failed to do so. There is, for example, no basis set forth for the conclusion that the proposed extension would not increase the nonconformity, assuming without deciding that the ZBA intended so to conclude. With respect to the second Britton prong, namely that the proposed extension would not be more detrimental to the neighborhood, the ZBA decision failed to define the “neighborhood” in

 

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[2] The court is mindful of the following language in Willard v. Board of Appeals of Orleans 25 Mass.App.Ct.15, 21-22, 514 N.E.2d 369, 373 (1987): “[The statute] should be read as requiring a board of appeals to identify the particular respect or respects in which the existing structure does not conform to the requirements of the present by-law and then determine whether the proposed alteration or addition would intensify the existing nonconformities or result in additional ones.” The use of the term “intensify” in Willard should not be read, however, as dispensing with the need to make specific findings as to the nature of the nonconformity, and whether the proposed extension would or would not increase that nonconformity.

 

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question.[3] “It is a not inconsiderable weakness of the board’s decision that it contains no analysis of that key phrase in the by-law.” Duteau v. Zoning Board of Appeals of Webster, 715 N.E.2d 470, 474, 47 Mass.App.Ct. 664, 669 (1999). Nor did the decision indicate any basis for its conclusion that the proposed addition would not be more detrimental to the “neighborhood” than the existing nonconformity. These gaps in the decision makes it impossible for this Court to determine whether the ZBA’s conclusion met the relevant legal standard.

13. For the above stated reasons, the ZBA’s decision is ANNULLED. The Clerk’s office is requested to schedule this matter for further hearing. The purpose of the hearing will be to allow counsel for the parties the opportunity to address whether the court should make “such other decree as justice and equity may require,” G.L. c. 40A, s. 17, concerning the inconsistency between the statute and the by-law.

 

So entered this 21st day of June, 2005.

 

 

 

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[3] The by-law also fails to define the term “neighborhood.”

 

 

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End Of Decision

 

HOUSING COURT

EASTGATE APARTMENTS v. MARY J. GUY

 

WESTERN DIVISION

 

Docket # 05 SP 315, 04 CV 283

 

Parties: EASTGATE APARTMENTS v. MARY J. GUY

Judge: /s/Dina E. Fein, Judge

Date: February 23, 2005

ORDER RESTORING TENANT TO UNIT

 

After hearing on February 18, 2005, for which both parties were present, and over Plaintiffs objection, the following Order shall enter:

1. The Court is satisfied that the Defendant has demonstrated

that she is entitled to a reasonable accommodation of her disability, as she has demonstrated:

a. that she has a disability;

b. that this disability was, until recently, undiagnosed;

c. that there is a causal connection between the disability and the tenant’s previous lease-violative behavior;

d. that current treatment of the disability has been effective at managing and controlling the Defendant’s behavior;

e. that the Defendant is cooperative with her treatment and intends to continue with her treatment; and that

f. the Defendant’s continued compliance with treatment is expected to ensure her future compliance with the terms of her lease.

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2. The Defendant may return to her apartment, and the Plaintiff shall allow Defendant to access her apartment as of Tuesday, February 22, 2005 at noon, subject to the requirements of this Order.

3. Defendant shall have no contact whatsoever with the Camacho family.

4. Defendant shall continue to cooperate with the Tenancy Preservation Project and comply with her treatment regimen.

5. Plaintiff shall offer Defendant another unit in the same complex as of April 1, 2005, or as soon thereafter as another unit becomes available, and Defendant shall cooperate with a move to a replacement unit.

6. This case shall be set for review March 1, 2005, at 9:00 a.m.

 

So entered this 23rd day of February, 2005.

 

 

 

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End Of Decision

 

HOUSING COURT

EASTGATE APARTMENT ASSOCIATES v. MARY J. GUY

 

Western Division

 

Docket # Civil Action No. 04-CV-0283

Parties: EASTGATE APARTMENT ASSOCIATES v. MARY J. GUY

Judge: /s/Dina E. Fein, Associate Justice

Date: June 30, 2004

ORDER

 

The Court, after hearing on June 29, 2004, at which both parties were present and participated, enters the following orders:

 

I. The Defendant, MARY J. GUY, is prohibited from engaging in or permitting any conduct on the premises or in or around the common areas of the BAY MEADOW APARTMENTS, Springfield, which violates the criminal laws of this Commonwealth, poses a threat to the peace and safety of any person residing in the BAY MEADOW APARTMENTS, or of any employee of the Plaintiff, or any other person, violates any provision of her Occupancy Agreement, or poses a threat to the property situated thereat;

 

II. The Defendant, MARY J. GUY, is prohibited from having any contact whatsoever with her downstairs neighbors, Providencia Camacho and Braulio Camacho, and the personal care attendant of Providencia Camacho, Lillian Lopez, and the adult daughter of the said Providencia Camacho, Bertila Camacho, at any time and for any reason, pending a full hearing upon the merits of this case;

 

III. Except as otherwise provided in this Order, the Defendant, MARY J. GUY, is prohibited from having any contact whatsoever with any member of the staff of BAY MEADOW APARTMENTS, at any time and for any reason, except in the circumstance of a genuine and legitimate emergency

 

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requiring the immediate response of maintenance workers to the GUY apartment;

 

IV. The Defendant, MARY J. GUY, is directed to meet with the Plaintiff’s resident services coordinator, Jessica Taylor, and the Plaintiff’s property manager, Steven Donato, for the purpose of permitting the Plaintiff to evaluate the relationship between the Defendant and the Camacho family from the Defendant’s perspective. The meeting will be held on Thursday, July 1, 2004, at 3 p.m., at the Western Division of the Housing Court, in Springfield. The meeting will be directed by Michael Doherty, the Assistant Housing Specialist of the Court;

 

V. The Plaintiff, EASTGATE APARTMENT ASSOCIATES, is ordered to instruct Providencia Camacho and Braulio Camacho, and the personal care attendant of Providencia Camacho, Lillian Lopez, and the adult daughter of the said Providencia Camacho, Bertila Camacho, that they are prohibited from having any

contact with the Defendant, MARY J. GUY, at any time and for any reason, pending a full hearing upon the merits of this case;

 

VI. The Plaintiff, EASTGATE APARTMENT ASSOCIATES, is ordered to instruct Providencia Camacho and Braulio Camacho, and the personal care attendant of Providencia Camacho, Lillian Lopez, and the adult daughter of the said Providencia Camacho, Bertila Camacho, that they are prohibited from engaging in or permitting any conduct on the premises or in or around the common areas of the BAY MEADOW APARTMENTS, Springfield, which violates the criminal laws of this Commonwealth, poses a threat to the peace and safety of any person residing in the BAY MEADOW APARTMENTS, or of any employee of the Plaintiff, or any other person, violates any provision of the Camacho Occupancy Agreement, or poses a threat to the property situated thereat;

 

ALL UNTIL THE FURTHER ORDER OF THE COURT.

 

 

 

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End Of Decision

 

HOUSING COURT

KEVIN Q. GARVEY and LYDIA GARVEY, Plaintiffs v. YI CORPORATION, Defendant

 

 

Docket # CIVIL ACTION NO. 04-CV-0564

Parties: KEVIN Q. GARVEY and LYDIA GARVEY, Plaintiffs v. YI CORPORATION, Defendant

Judge: /s/Dina E. Fein

Associate Justice

Date: January 18, 2005

RULINGS AND ORDERS ON PLAINTIFFS’ MOTIONS FOR PARTIAL SUMMARY JUDGMENT AND PRELIMINARY INJUNCTION

 

The above-captioned matter came before the court on January 14, 2005, for hearing on the plaintiffs[1] motions for summary judgment and preliminary injunction. For the reasons set forth below, the plaintiffs’ motions are allowed.

1. Undisputed Material Facts: On or about July 21, 2004, the parties entered into a purchase and sale agreement, pursuant to which the defendant agreed to sell, and the plaintiffs agreed to buy, a single family home located at 4 Drumlin Circles, Wilbraham (the property). At the time they executed the purchase and sale agreement, the plaintiffs were living in California. After entering into the agreement, the plaintiffs sold their home in California, and relocated to Massachusetts. The plaintiff Kevin Garvey obtained employment in Springfield, Massachusetts. The plaintiffs have four year old twins. The

 

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[1] Lee Powell and Associates has been allowed to intervene as a plaintiff herein. The pending motions, however, are brought on behalf of the original plaintiffs only, Kevin and Lydia Garvey.

 

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plaintiff Lydia Garvey is confined to a wheelchair. The property is newly constructed, and is architecturally accessible.

 

2. Under the purchase and sale agreement, the plaintiffs had the right to inspect the property “until conveyance of title.” The agreement also provided in pertinent part as follows with respect to the plaintiffs’ right to terminate the agreement following inspection:

 

If the BUYER is not satisfied with the results of such inspection(s)…this Agreement may be terminated by the BUYER, at the BUYER’S election, without legal or equitable recourse to either party…provided however, that the BUYER shall have notified the Broker, in writing, together with a copy of the written report(s) or the inspection(s) on or before the inspection expiration date hereinabove specified, of the BUYER’S intention to so terminate. If such notice and written report(s) are not received on or before the inspection expiration date hereinabove specified, the BUYER shall be bound to perform BUYER’S obligations under this Agreement.

 

3. The purchase and sale agreement provided that the property was to be conveyed “on or before October 15, 2004.” The agreement did not indicate that time was “of the essence.” On October 14, 2004, the plaintiffs forwarded the defendant a document entitled “Final Walk Through and Mechanical/Structural Inspection Report.” The document identified several items “to be addressed prior to closing.” The closing did not take place on October 15, 2004. On October 18, 2004, the defendant was provided with a copy of a memorandum which purported to be from the plaintiff Kevin Garvey (although it was signed by someone named Peter Jeffries), to the plaintiffs’ real estate attorney, which identified “deficiencies” at the property, including those identified on the October 14 document, and others. The October 18 document indicated that “items 1 – 5 should be taken care of prior to occupancy,” and that “items 6 – 9 can be placed on the `punch list’ of items to be taken care of after occupancy.”

 

4. On October 29, 2004, the plaintiffs (through counsel) contacted the defendant (through

 

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counsel), and indicated that they were “ready, willing and able to consummate this transaction on the terms set forth” in the purchase and sale agreement. They also indicated that they would appear at the Registry of Deeds on November 10, 2004 “with the ability and intent to close this transaction…time is of the essence.” On November 1, 2004, the defendant responded (through counsel), and indicated that it was “not willing to close… [but was] ready, willing and able to act in accordance with the terms of the Agreement to finalize a release between the parties.”

 

5. Summary Judgment Standard: Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Mass.R.Civ.P. 56(c). See also, Cassesso v. Commissioner of Correction, 390 Mass. 419, 422, 456 N.E.2d 1123 (1983); Community Nat’l Bank v. Dawes, 369 Mass. 550, 553, 340 N.E.2d 877 (1976). The moving party bears the burden of establishing the absence of a triable issue, and that it is entitled to judgment as a matter of law, based on the summary judgment record. Pederson v. Time, Inc., 404 Mass. 14, 16-17, 532 N.E.2d 1211 (1989). “If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact …”Id, 404 Mass. at 17, 532 N.E.2d 1211. In ruling on a motion for summary judgment, the court views all facts and inferences reasonably drawn therefrom in the light most favorable to the nonmoving party. Bisson v. Eck, 430 Mass. 406, 407, 720 N.E.2d 784 (1990); Gray v. Giroux, 49 Mass.App.Ct. 436, 437, 730 N.E.2d 338 (2000).

 

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6. Preliminary Injunction Standard: In order to obtain a preliminary injunction, the plaintiffs must establish the following: (1) a likelihood of success on the merits; (2) a risk of irreparable harm in the absence of injunctive relief; and (3) “that the risk of irreparable harm to a plaintiff, in light of his chances of success on his claim, outweighs the defendant’s probable harm and likelihood of prevailing on the merits of the case.” Com. v. Mass. CRINC, 392 Mass. 79, 87, 466 N.E.2d 792, 797 (1984).

 

7. Discussion: The purchase and sale agreement sets forth a specific process which the plaintiffs were required to follow in order to terminate the contract and be relieved of the obligation to perform thereunder. It is clear on the record before the court that the plaintiffs did not follow or invoke this process. The plaintiffs did not provide written notice of their intention to terminate the purchase and sale agreement. The documents dated October 14 and October 18, 2004 fail, in

several respects, to satisfy the contractual requirements for written notice of termination. Neither is addressed to the Broker, as required under the agreement. More significantly, however, and ultimately dispositively, neither indicates an intention to terminate the contract. To the contrary, the October 14 document closes with the assertion that the issues raised therein “need to be addressed prior to closing;” and the October 18 documents distinguishes between the “deficiencies” to be taken care of “prior to occupancy” and “after occupancy.”

 

8. The defendant’s argument that the plaintiffs repudiated the contract by their “words or actions,” is unavailing. The purchase and sale agreement, having specified the procedures for termination, was not terminable in any other way. There is no dispute that those procedures were not followed. In addition, the record simply does not support the defendant’s factual assertions. For example, the defendant argues that the plaintiffs

 

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insisted that the defendant install an elevator instead of the existing lift, or credit the plaintiff with $25,000 at closing. The record does not include any written communication from the plaintiffs demanding a credit, and the only reference in the defendant’s affidavit to a $25,000 credit is in the form of inadmissible hearsay, incompetent to defeat the plaintiffs’ motion. Mass. R. Civ. P.56(e). Even had the plaintiffs demanded this credit, however, the defendant was not under any obligation to extend it. While the parties may have engaged in some negotiations about new terms, their rights and obligations were established by the existing contract, until and unless amended, or terminated. As the contract was terminable only by the plaintiffs, and was not terminated by them, there is no dispute that the defendant remains obligated to convey the property as required under the purchase and sale agreement.

 

9. Balance of Harms: Since relocating from California shortly before the anticipated closing in October, 2004, the plaintiffs have been residing in Hyde Park, Massachusetts, with Ms. Garvey’s mother. The house in Hyde Park is not architecturally accessible, and Ms. Garvey is therefore confined to the first floor of those premises. Mr. Garvey has been commuting daily from Hyde Park to his job in Springfield.[2] By virtue, therefore, of architecture as well as geography, the plaintiffs’ current living situation is ill suited to their needs, and imposes significant hardship.

 

10. Ordering specific performance of the purchase and sale agreement, on the other hand, would not harm the defendant. The parties negotiated an arms length, enforceable

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[2] Although these facts are not set out in affidavit form, they were represented at hearing on the plaintiffs’ motions, and do not appear to be disputed by the defendant.

 

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contract. By definition, an order requiring the defendant to do only that which it originally agreed to do, cannot be characterized as causing undue hardship.

 

11. Ruling and Order: There being no material facts in dispute, partial summary judgment shall enter in favor of the plaintiffs on their claim for specific performance. In addition, the plaintiffs having established a significant likelihood of prevailing on the merits of their claim, and a risk of irreparable harm in the absence of injunctive relief, the defendant is hereby enjoined and ordered forthwith to take all steps necessary to transfer title of the subject property to the plaintiffs, on the terms set forth in the purchase and sale agreement.

 

So entered this 18th day of January, 2005.

 

 

 

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End Of Decision

 

HOUSING COURT

MICHAEL GERMAIN, M.D., et al, Plaintiffs v. THE TOWN OF MONTEREY ZONING BOARD OF APPEALS, et al, Defendants

 

 

Docket # DOCKET NO. 04-CV-0090 and DOCKET NO. 05-CV-284

Parties: MICHAEL GERMAIN, M.D., et al, Plaintiffs v. THE TOWN OF MONTEREY ZONING BOARD OF APPEALS, et al, Defendants

Judge: /s/Dina E. Fein

Associate Justice

Date: May 4, 2006

RULINGS AND ORDERS ON CROSS MOTIONS FOR SUMMARY JUDGMENT IN CONSOLIDATED CASES

 

The above-captioned consolidated cases are before the court on cross motions for summary judgment. Upon consideration of the parties’ arguments and submissions, the following rulings and orders shall enter:

1. Undisputed Facts: The defendant Town of Monterey has enacted Zoning Bylaws (“the Bylaws”). The Bylaws define the term “lot” as “[a]n area of land in one ownership with definite boundaries, used or available for use as the site of one or more buildings.” The Bylaws divide Monterey into districts, one of which is the Lake Shore District, which is defined as consisting “of all land within 260 feet of the mean high water level line of Lake Buel or Lake Garfield.” The Bylaws set minimum lot dimensions for the Lake Shore District. In addition, effective May 5, 1990, the Bylaws have prohibited the installation of any “on-lot subsurface sewage effluent leaching system such as a cesspool, dry well, leaching field or a drainage system for the waste

 

 

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water from showers, sinks, etc….within 150 feet of the mean high water line of the bodies of water indicated on a map entitled “Monterey Streams and Ponds…” The Bylaws provide an exception from this set back requirement, “in the case of a lot duly recorded prior to October 19, 1990,” as to which the Board of Health “may authorize construction or installation of such disposal system at a reduced distance.”

2. The plaintiff, Michael Germain (” Dr. Germain”) owns an unimproved lot at 3A Buckingham Lane, Assessors Map 15, Lot 179, in Monterey. Dr. Germain’s property, which is located in the Lake Shore District, is also known as Lot # 6 (hereinafter “Lot # 6), on a survey plan entitled “Lake Shore Gardens, Section 1, Subdivision A” dated June, 1961, recorded in the Southern Berkshire Registry of Deeds in Map Book 3 at Page 3.

3. By deed dated November 20, 1965, the plaintiff Jean Germain (“Ms. Germain”) acquired a lot at 3 Buckingham Lane, also in the Lake Shore District, immediately abutting Dr. Germain’s lot to the north, and known on the subdivision survey plan as Lot # 5 (hereafter “Lot 5”). On or around June 17, 1992, Ms. Germain acquired an additional parcel of land (“Parcel # 2) which comprised roughly half of the lot immediately to the north of Lot # 5 in the Lake Shore Gardens subdivision. When Ms. Germain acquired Parcel # 2, neither it nor Lot # 5 met the minimum area or frontage requirements of the Bylaws.

4. On or around October 9, 1999, the Town of Monterey Zoning Board of Appeals granted Ms. Germain a special permit to construct an addition to a pre-existing, nonconforming dwelling on Lot # 5, conditioned upon Ms. Germain documenting the merger of Lot # 5 and Parcel # 2, “by Deed describing the land as one lot around its perimeter with an affirmation (sic) statement of the intention to combine the parcels into one lot.” On or around November 4, 1999, Ms. Germain conveyed in a single deed the property comprised of Lot # 5 and Parcel # 2 to James

 

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M. Lamme, III. The deed was recorded, and stated as follows: “The purpose of this deed is to combine the two parcels into one parcel to comply with the provisions of a special permit…” Also on or around November 4, 1999, Mr. Lamme conveyed the property back to Ms. Germain, by deed using identical language.

5. On or around January 16, 2002, Dr. Germain applied to the Town of Monterey Board of Health (“the Board of Health”) for a Disposal System Construction Permit. The application was rejected as noncompliant with Title V.

6. On or about February 15, 2003, another plan was submitted to the Board of Health on behalf of Dr. Germain for a Zero Discharge System plan with a Title V backup system (“the proposed septic system”). The proposed septic system was associated with a two bedroom house to be constructed on Lot # 6, and included a singulair tank located approximately 36 feet from the mean high water line of Lake Garfield, a force main crossing Ms. Germain’s

property to the north, and a leaching field located between 81 and 115 feet from the mean high water line of Lake Garfield on that portion of Ms. Germain’s property which was originally Parcel #2. By letter dated December 3, 2003, the Board of Health denied Dr. Germain’s application, “due to the environmentally sensitive nature of the site, projected impacts from stormwater, and noncompliance with…” the minimum setback requirements of the Bylaws.

7. On or around January 10, 2005, Dr. Germain filed an application for a building permit, to construct a three bedroom house on Lot #6. The application was rejected for several reasons, including that “a building permit cannot be issued until a Sewage Disposal Permit is issued by the Board of Health.” Dr. Germain appealed the denial to the Zoning Board of Appeals, which

 

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denied the appeal. Dr. Germain then requested judicial review by the court.[1]

8. Summary Judgment Standard: Summary judgment is appropriate when no material facts are in dispute and the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c); Highlands Ins. Co. v. Aerovox, 424 Mass. 226, 232, 676 N.E.2d 801 (1997). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue and the fact that it is entitled to judgment in its favor. Pederson v. Time Inc., 404 Mass. 14, 16-17, 532 N.E.2d 1211 (1989). A moving party which does not bear the burden of proof at trial is entitled to summary judgment if it submits affirmative evidence, unmet by countervailing materials, that either negates an essential element of the nonmoving party’s case or demonstrates that the nonmoving party has no reasonable expectation of proving an essential element of its case. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991). The opposing party cannot rest on the pleadings or on mere assertions of disputed facts to defeat the summary judgment motion. “If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact …” Pederson, 404 Mass. at 17, 532 N.E.2d 1211. When reviewing a summary judgment record, the court credits facts in the light most favorable to the nonmoving party. Bisson v. Eck, 430 Mass. 406, 407, 720 N.E.2d 784 (1990); Gray v. Giroux, 49 Mass.App.Ct. 436, 437, 730 N.E.2d 338 (2000).

9. Analysis: There is no dispute that the proposed septic system would be located within

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[1] The plaintiffs have included a number of factual allegations in their submissions pertaining to the administrative procedures below, and seeming to suggest that these procedures were unfairly misleading. While this ruling should not be read as condoning such an approach, assuming it did transpire in the way suggested by the plaintiffs, these allegations are ultimately

irrelevant to the ruling herein; “[T]he doctrine of estoppel cannot stay the hand of a municipality in enforcing its zoning laws.” Ferrante v. Board of Appeals of Northampton, 345 Mass. 158, 162,186 N.E.2d 471, 474-475 (1962).

 

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150 feet of the mean water line of Lake Garfield, contrary to the setback provisions of the Bylaws. The parties’ cross motions frame the question of whether Ms. Germain’s lot is “grandfathered” and thereby exempt from the Bylaws. The plaintiffs argue, in effect, that the combination of Lot # 5 and Parcel # 2 into a single parcel by deed dated November 4, 1999 did not strip the resulting property of the grandfathered status enjoyed by its constituent predecessors. The defendants argue, in the alternative, that Lot #5 and Parcel #2 merged as a matter of law when Ms. Germain acquired the second parcel in June, 1992; or by operation of the deed conveying both as a single parcel in November, 1999. For the reasons set forth herein, the court rules that the defendants are entitled to summary judgment in their favor.

10. Ms. Germain holds title to her property pursuant to a chain of title which most recently included transfer to her of a single parcel comprising all of the land which previously constituted Lot # 5 and Parcel #2. This deed did not evidence an intent to preserve the separate lots which existed previously. See, Collins v. Wieworka, Land Court, Middlesex Case no. 216654, November 13, 1995 (Lombardi, J.). To the contrary, the November 4, 1999 deed from Mr. Lamme to Ms. Germain, the deed pursuant to which she now holds title to her property, established definite boundaries for a single piece of property in her sole ownership, thereby satisfying the definition of a “lot” under the Bylaws. In this way the deed was clearly intended to merge the two lots, as required by the terms of the special permit which triggered the transfer.

 

Inasmuch as the plaintiffs acquired one lot and not two, it is not open for them, in effect, to revive the old lots … which no longer exist as far as the zoning by-law is concerned. The only sensible construction of the minimum area and frontage requirement is that the exception relative to undersized lots applies to lots which not only were in existence in [1990] but also have retained a separate identity. Lindsay v. Board of Appeals of Milton, 362 Mass. 126, 131 (1972).

 

11. Nor, as argued by the plaintiffs, does the single lot conveyed to Ms. Germain on

 

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November 4, 1999 enjoy grandfathered status simply because it consists of property which previously constituted two separate, grandfathered, lots. This conclusion is compelled in part by the plain language of the special permit which required that the deed include “an affirmation (sic) statement of the intention to combine

the parcels into one lot.” The only reasonable interpretation of the special permit is that it allowed Ms. Germain’s request to build an addition to the existing nonconforming structure conditioned upon her forfeiting the grandfathered status of her parcels thereafter, specifically by combining them into a single lot and thereby bringing the resulting lot under the dimensional and set back requirements of the Bylaws. [2]

12. The special permit expressly required Ms. Germain to document the “merger” of her two parcels, which she did by virtue of the transfers by deed in November, 1999. As the two lots were merged in fact, the court need not and does not reach the additional question of whether they merged by operation of law when the second parcel was acquired in 1992.

13. For these reasons, the conclusion is unavoidable that Ms. Germain’s lot did not exist “prior to October 19, 1990,” and is therefore not eligible for the exception to the setback requirements of the Bylaws. Even assuming, arguendo, that the exception did apply, however, it permits the ZBA to dispense with the setback provisions; it does not require the ZBA to do so. In light of the historical steps taken by the ZBA to insure that Ms. Germain’s property be treated as a single lot, the ZBA would not have abused its discretion, even assuming it had such discretion, in declining to apply the exception to this situation.

14. The Building Permit: The State Building Code provides in relevant part that “[e]very

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[2] G.L. c. 40A, s. 6 provides in pertinent part as follows: “The record owner of the land shall have the right, at any time, by an instrument duly recorded in the registry of deeds for the district in which the land lies, to waive the provisions of this section, in which case the ordinance or by-law then or thereafter in effect shall apply.”

 

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dwelling unit shall be provided with plumbing and sanitary facilities…” 780 CMR 3603.24.1 The Board of Health having properly denied Dr. Germain’s application for the proposed septic system, it follows irrefutably that the Building Inspector and ZBA also acted properly in denying his application for a building permit.

15. Order for Entry of Judgment: For the foregoing reasons, the defendants are entitled to summary judgment in their favor. Judgment shall enter in favor of the defendants in 04-CV-0090. Judgment shall enter in favor of the defendants in 05-CV-284

 

So entered this 4th, day of May, 2006.

 

 

 

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End Of Decision

 

HOUSING COURT

RUBY JONES, Plaintiff v. LAURETTA KYNARD, Defendant

 

 

 

 

Docket # DOCKET NO. 06-SP-04357

Parties: RUBY JONES, Plaintiff v. LAURETTA KYNARD, Defendant

Judge: /s/Dina E. Fein

Associate Justice

Date: December 5, 2006

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned summary process (eviction) case came before the court for trial on November 30, 2006, after which the following findings of fact and rulings of law are to enter, as provided for under Mass. R. Civ. P. 52(a):

 

1. The plaintiff (landlord) owns the property located at 71/69 Harvard Street, Springfield. The landlord occupies one unit, and rented 69 Harvard”Street (the premises) to the defendant (tenant) effective December 1, 2005, pursuant to a written lease. The contract rent for the premises is $650 per month. Rent totaling $1,300 is unpaid through November, 2006. On or around October 5, 2006 the landlord served and the tenant received a 14 day notice terminating the tenancy for nonpayment of rent. In defense and counterclaim to the landlord’s case, the tenant raises bad conditions including insufficient heat, violation of the security deposit statute, and retaliation. I will address these in turn.

2. Conditions: There have been a number of substandard conditions at the premises since

 

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the inception of the tenancy, which violate the minimum standards of fitness for human habitation as set forth in Article II of the State Sanitary Code, 105 C.M.R. 410.00 et seq. These conditions include ceiling leaks, floors in disrepair, door and windows which are not weathertight, and insufficient heat. These conditions have been worse at some times than others. The tenant’s unit was without heat entirely from December, 2005 through mid-March, 2006. In August and September, 2006, the ceiling leaks resulted in two ceilings (the pantry and the children’s room) collapsing. New windows were installed throughout most of the premises in September, 2006, although the new windows do not yet have locks. The landlord has begun the process of repairing the roof, but the repairs have not been completed.

3. The tenant’s allegations regarding conditions at the premises constitute a defense and counterclaim based upon breach of the implied warranty of habitability, for which the landlord is strictly liable. Berman & Sons v. Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979). It is usually impossible to fix damages for breach of the implied warranty with mathematical certainty, and the law does not require absolute certainty, but rather permits the courts to use approximate dollar figures so long as those figures are reasonably grounded in the evidence admitted at trial. Young v.

Patukonis, 24 Mass.App.Ct. 907, 506 N.E.2d 1164 (1987). The measure of damages for breach of the implied warranty of habitability is the difference between the value of the premises as warranted, and the value in their actual condition. Haddad v. Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991).

4. I find that the fair rental value was reduced by 35% for the months of December, 2005 through March, 2006 and August through September, 2006, as a result of the bad conditions in general, no heat, and active ceiling leaks and collapsed ceilings. At all other times since the

 

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inception, I find that the fair rental value of the premises was reduced by 20%. The tenant’s damages for the landlord’s breach of the implied warranty of habitability are therefore $650 (contract rent) x 35% =$227.50 x 6 months = $1,365 + $650 (contract rent) x 20% = $130 x 6 months = $780 = $2,145. The landlord has previously waived February’s rent, which waiver shall be credited against the tenant’s damages, resulting in a net award to the tenant of $2,145 – $650 = $1,495.

5. Security Deposit: The tenant did not meet her burden of proving that she paid a security deposit (as contrasted with a last month’s rent) at the inception of the tenancy. The landlord is therefore entitled to a ruling in her favor on this claim.

6. Retaliation: On or around February 1, 2006, the tenant sought an emergency order in this court to address the absence of heat at her apartment. On or around October 3, 2006, the tenant informed the landlord that she was withholding rent until the collapsed ceilings were repaired. On October 5, 2006, the landlord served the tenant with a notice to quit for nonpayment of rent. The notice to quit was served more than six months after the tenant sought relief in this court concerning heat, but within 6 months of the tenant’s exercising her right to withhold rent. Irrespective of whether the presumptions of retaliation under G.L. c. 186, s. 18 and G.L. c. 239, s.2A apply, however, I find that the landlord’s conduct in terminating the tenancy and seeking eviction is in fact retaliatory. Withholding rent is not the legal equivalent of failing to pay rent. In addition, the landlord has been on notice for many months of seriously substandard conditions at the premises, and has failed adequately to repair those conditions, seeking instead to evict the tenant when she forced the issue of repairs. Even assuming as I do that the landlord’s financial circumstances may make it difficult for her to complete the necessary repairs, she has undertaken

 

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the responsibilities as well as the benefits of being a landlord, and is not permitted under the law simply to evict a tenant when the responsibilities appear to outweigh those benefits.

7. As a result of the landlord’s retaliation, the tenant is entitled to an award of between one and three months’ rent. I award the minimum permitted, or $650, as I believe this sum suffices to

accomplish the purposes of the anti-reprisal statutes.

8. Order for Entry of Judgment: Based upon the foregoing, judgment shall enter in favor of the defendant tenant for possession and $1,495 + 650 = $2,145 (tenant’s damages) – $1,300 (landlord’s rent claim) = $845. At the election of the tenant, this sum may be applied against rent, beginning in December, 2006.

9. The rent shall continue to be reduced by 20%, to $520, until such time as repairs at the premises have been completed. The parties may contact the court’s Housing Specialist Department in the event of any dispute concerning repairs and/or whether and when the rent should be restored to the full contract rate of $650.

So entered this 5th day of December, 2006.

 

 

 

 

cc: Kevin R. Byrne, Sr.

Chief Housing Specialist

 

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End Of Decision

 

HOUSING COURT

GINA LONGO, Plaintiff v. RICHARD HOVER, Defendant

 

 

 

Docket # DOCKET NO. 06-SP-04615

Parties: GINA LONGO, Plaintiff v. RICHARD HOVER, Defendant

Judge: /s/Dina E. Fein

Associate Justice

Date: December 15, 2006

FINDINGS, RULINGS, AND ORDER

 

The above-captioned summary process (eviction) case came before the court for trial on December 13, 2006, after which the following findings of fact and rulings of law shall enter, as provided for under Mass. R. Civ. P. 52(a):

1. The plaintiff (landlord) owns a rooming house located at 215 Dalton Division, Dalton, and rented Room # 15 (the premises) to the defendant (tenant) effective September 24, 2006. The agreed upon rent for the premises is $95 per week. Rent totaling $900 is unpaid at present. Based upon a preponderance of the credible evidence, I conclude that the landlord served and the tenant received a 14 day notice dated October 23, 2006, terminating the tenancy for nonpayment of rent.

2. In defense and counterclaim to the landlord’s case, the tenant advances two arguments: that the landlord entered his room without permission, thereby breaching the covenant of quiet enjoyment; and that there are substandard conditions at the premises, namely inadequate heat and

 

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hot water.

3. The landlord did enter the tenant’s room without permission on one occasion, and left a note (Exhibit 4) on his bed. While the single unauthorized entry was not proper, I do not find that it rises to the level of breaching the covenant of quiet enjoyment, which requires conduct that “seriously interferes” with the tenancy. Ianello v. Court Management Corporation, 400 Mass. 321 (1987). The landlord is therefore entitled to a ruling in his favor on this claim.

4. The heat in the tenant’s room is inadequate (permanently setting the thermostat at 62degrees falls below the standards of the State Sanitary Code), and the sink in the tenant’s room does not have hot water. Both of these conditions have existed since the inception of the tenancy, by virtue of which the landlord has breached the implied warranty of habitability. The tenant’s damages are the difference between the value of the premises as warranted (up to Code), and the value in their actual condition. The tenant works from 6:00 a.m. to 11:00 p.m., and does not spend much time at the premises, mitigating the adverse effect of the substandard conditions. I am therefore awarding a rent abatement of 10%, or $9.50 per week. The tenant’s damages for breach of the implied warranty of habitability are therefore $9.50 x 11.5 weeks (from the inception through the day of trial) = $109.25.

5. Ruling and Order: Based upon the foregoing, and as provided for under G.L. c. 239, s.8A, the tenant shall have 10 days

from the entry date of this order (below) to deposit with the Clerk’s office of this court the sum of $900 (landlord’s rent claim) – $109.25 (tenant’s damages) = $790.75. If the tenant makes this deposit, the funds will forthwith upon request be released to the landlord, and judgment for possession will enter in favor of the tenant. If the tenant fails to make the deposit, judgment for possession and $790.75 shall enter in favor of the landlord at the

 

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expiration of the 10 day period.

So entered this 15th day of December, 2006.

 

 

 

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End Of Decision

 

 

HOUSING COURT

SAMUEL WATKINS, Plaintiff v. MICHAEL THERIAQUE and MEAGHAN THERIAQUE, Defendant

 

 

Docket # DOCKET NO. 06-SP-04279

Parties: SAMUEL WATKINS, Plaintiff v. MICHAEL THERIAQUE and MEAGHAN THERIAQUE, Defendant

Judge: /s/Dina E. Fein

Associate Justice

Date: December 4, 2006

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned summary process (eviction) case came before the court for trial on November 30, 2006, after which the following findings of facts and rulings of law shall enter, as provided for under Mass. R. Civ. P. 52(a):

1. The plaintiff (landlord) owns the property located at 427 Bay Street, Springfield. Effective August 1, 2006, the landlord rented the first floor unit at the property (the premises) to the defendants (tenants) pursuant to a written lease. The contract rent for the premises is $500 per month. On September 27, 2006 the landlord served and the tenant received a rental period notice terminating the tenancy not-for-cause. Rent totaling $1,000 is unpaid through November, 2006. In defense and counterclaim to the landlord’s case, the tenant raises substandard

 

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conditions, failure to provide gas and hot water, and retaliation.[1]

2. Conditions: At the inception of the tenancy there existed a number of conditions which violated the minimum standards of fitness for human habitation, as set forth in Article II of the State Sanitary Code. These conditions included an infestation of cockroaches, no hot water, no gas for cooking, and assorted other defects as listed on the Department of Code Enforcement notice dated September 25, 2006 and depicted in photographs entered into evidence as Exhibit 8. To date, the landlord has failed to take effective measures to remedy the cockroach infestation, or any of

the other conditions cited by Code Enforcement been remedied. Gas service was restored in mid-August, and hot water was restored towards the end of August.

3. The substandard conditions have adversely affected the tenants’ use of the premises, and constitute a breach of the implied warranty of habitability, for which the landlord is strictly liable (liable without a showing of fault on the part of the landlord). The tenants’ damages for the landlord’s breach of the implied warranty of habitability are the difference between the fair rental value of the premises as warranted (up to Code), and in their actual condition.

4. I find that the fair rental value of the premises was reduced by 50% for the month of August, and has been reduced by 25% since September 1, 2006. The tenants’ damages for the landlord’s breach of the implied warranty of habitability is therefore $500 (contract rent) x 50% = $250 x 1 month = $250 + $500 (contract rent) x 25% = $125 x 3 months (September through November, 2006) = $375 = $625.

5. Utilities: When the tenants attempted to hook up their gas stove at the beginning of the

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[1] No evidence was offered on any other claims raised in the Answer, which are therefore deemed waived.

 

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tenancy, they was unable to do so, because of inadequate or defective piping at the premises. In addition, their gas service, which was activated on August 8, was discontinued on August 11 (with prompt notice to the landlord) because of a defective water heater at the premises. The water heater was not replaced, and the gas service was therefore not restored, until August 24,

2006.

6. A landlord who is responsible under a tenancy agreement to furnish gas and hot water, and fails to do so, is liable under G.L. c. 186, s.14 (s.14). A landlord who interferes with the furnishing by another of such utilities or services, is also liable under s.14. Based upon the facts outline above, I find that the landlord was “at least negligent” with respect to the gas service and hot water and is therefore liable under s.14, irrespective of which party was required under the lease to pay for gas service.[2]

7. As a result of the landlord’s violation of s.14, the tenants are entitled to the greater of their actual damages, or three months’ rent. There being no evidence of actual damages, the tenants are awarded three months’ rent, or $1,500.

8. Retaliation: In August, 2006, the tenants contacted Code Enforcement about conditions at the premises. By letter dated September 24, 2006 and received on September 26, 2006, the tenants complained to the landlord about the cockroach infestation, and stated that they would be withholding rent. Contacting Code Enforcement, complaining in writing to the landlord, and withholding rent, are all protected activities, within 6 months of which the landlord terminated the tenancy not-for-cause, and sought

eviction. This sequence of events creates a rebuttable

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[2] The lease not having been entered into evidence, I am unable to make a fording on this point which, as indicated above, does not affect the outcome of this claim.

 

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presumption under G.L. c. 239, s.2A and G.L. c. 186, s.18, that the landlord has acted in retaliation against the tenants.

9. The landlord has not rebutted this presumption with clear and convincing evidence that he would have taken the action when his did, in the manner he did, notwithstanding the protected activity, nor that he had an independent basis for doing so. To the contrary. The landlord’s testimony that he intended to occupy the premises himself is belied by his having entered into a one year lease on August 1, and the timing and language of the notice to quit (“I believe you are dissatisfied with the apartment.”), served on the very day that the landlord received the tenants’ rent withholding letter, make it regrettably clear that the landlord’s action was retaliatory.

10. As a result of the landlord’s reprisal, the tenants are entitled to an award of between one and three months’ rent. G.L. c. 186, s.18. Based upon the landlord’s credible testimony concerning his financial difficulties, as well as the other awards made herein, I conclude that an award of one month’s rent is sufficient to accomplish the purposes of the anti-reprisal statutes, and therefore award $500.

11. Order for Entry of Judgment: Based upon the foregoing and as provided for under G.L. c. 239, s.8A, a judgment shall enter in favor of the tenants for possession and $2,625 (tenants’ damages) – $1,000 (landlord’s rent claim) = $1,625. At the election of the tenants, this sum may be applied against rent, beginning for the month of December, 2006.

12. The landlord is ordered forthwith to complete all repairs required by Code Enforcement. The rent shall continue to be reduced by 25%, to $375, until such time as the landlord has completed the repairs. Any dispute concerning repairs shall be brought at the first instance to the court’s Housing Specialist Department, whose instructions shall be binding upon the parties

 

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unless superceded by order of a judge. This case shall remain open for 90 days for compliance with this paragraph. If no party seeks further hearing within this 90 day period, the case will be dismissed.

So entered this 4th day of Dec., 2006.

 

 

cc: Kevin R. Byrne, Sr.

Chief Housing Specialist

 

 

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End Of Decision

 

HOUSING COURT

ELIZABETH SUPRANOVICH and JAMES BARUFALDI, Plaintiffs v. ERIN K. GLUCKMAN, Defendants

 

 

 

Docket # DOCKET NO. 04-SP-03674

Parties: ELIZABETH SUPRANOVICH and JAMES BARUFALDI, Plaintiffs v. ERIN K. GLUCKMAN, Defendants

Judge: /s/Dina E. Fein

Associate Justice

Date: October 15, 2004

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGEMENT

 

The above-captioned matter came before the court for trial on September 27, 2004, after which the following findings of fact and rulings of law are to enter, as provided for under Mass. R. Civ. P. 52(a):

1. The plaintiffs (landlords) own the property located at 31 Holyoke Street, Apartment A, Northampton (the premises), which they rented to the defendant (tenant) Erin Gluckman, and a co-tenant, Rachael Klobertanz, effective September 1, 2003, pursuant to a written lease agreement. The lease was for 10 months, and the contract rent was $1,000 per month.

 

 

2. The lease between the parties provided in pertinent part as follows:

 

21. LESSEE’S COVENANTS IN EVENT OF TERMINATION:

The lessee covenants that in case of any termination of this lease, by reason of the default of the Lessee, then at the option, of Lessor

(A) The Lessee will forthwith pay to the Lessor as damages hereunder a sum equal to the amount by which the rent and other payments called for hereunder for the remainder of the term or any extension or renewal thereof exceed the fair rental

 

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value of said premises for the remainder of the term or any extension or renewal thereof and

 

(B) The lessee covenants that he will furthermore indemnify the Lessor from and against any loss and damages sustained by reason of any termination caused by the default of, or the breach by, the Lessee. Lessor’s damages hereunder shall include, but shall not be limited to any loss of rents; reasonable broker’s commissions for the re-letting of the leased premises; advertising costs; the reasonable cost incurred in cleaning and repainting the premises in order to re-let the same; and moving and storage charges incurred by Lessor in moving Lessee’s belongings pursuant to eviction proceedings…

 

3. At the inception of the tenancy and throughout the tenant’s occupancy, there were several conditions at the premises which violated the minimum standards of fitness as set forth in the State Sanitary Code, including accumulated trash from previous tenants, abandoned cars in the driveway, and a stove which was not in working order.

 

4. On or around November 31, 2003, the tenant wrote to the landlords, and informed them that she would be vacating the premises, indicating that she and her co-tenant were “completely incompatible roommates” and that she could “no longer live in the apartment.” The tenant testified credibly that she vacated the premises because the living situation with Ms. Klobertanz was “a nightmare,” due to Ms. Klobertanz’ behavior, and that of her guests.

 

5. Although the tenant wrote several checks to the landlord during the period from late August, 2003 through November, 2003, all of the checks were dishonored for insufficient funds, and the tenant paid no rent during the period of her occupancy, nor throughout the lease term.

 

 

6. After the tenant vacated, approximately seven other people moved in and out of the premises with Ms. Klobertanz over the duration of the lease term, most with the

 

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knowledge of the landlords. Only two of these individuals completed applications, of whom one was qualified as a tenant, but never entered into a lease with the landlords. A few small payments were received from various individuals, but rent totaling $7,590 was nevertheless unpaid at the expiration of the lease when Ms. Klobertanz vacated.

 

7. Ms. Klobertanz committed numerous lease violations prior to vacating the premises, including failing to pay rent, having pets at the premises, permitting unauthorized occupants to reside at the premises, causing disturbances, and causing damage to the premises. At no time did the landlords take steps to evict Ms. Klobertanz, nor did they undertake to secure additional tenants for the premises until after the expiration of the lease. When Ms. Klobertanz vacated, the premises were left in a condition of significant disrepair.

 

8. Rulings of Law: The tenant and Ms. Klobertanz were tenants in common, jointly and severally liable for rent under the lease. The tenant defaulted on her contractual obligation to pay rent.[1] Although the landlords took some steps to secure other co-tenants for the premises, neither tenant alone was authorized to surrender the lease, and the tenancy persisted for the duration of the lease term, notwithstanding that Ms. Gluckman vacated the premises. The tenant therefore remains liable under the lease for unpaid rent.

 

9. The tenant is only liable, however, for the fair rental value of the premises, and any lease provision which purports to entitle the landlord to payments in excess of the fair rental value is void as a matter of law. G.L. c. 239, s.8A. As indicated above, the fair rental

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[1] While the tenant may have a claim against Ms. Klobertanz for events which lead her to vacate the premises, and/or for contribution under the lease, those potential claims do not diminish the landlords’ right to recover against the defendant herein.

 

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value was reduced by substandard conditions at the premises which existed at the inception of the tenancy, and which were not repaired until after the lease term expired. Those conditions reduced the fair rental value by 20% throughout the lease term, for a total abatement of $1000 (contract rent) x 20% = $200 x 10 months (lease term) = $2,000. The landlord’s

rent claim shall be reduced by the rent abatement, and judgment shall enter accordingly.

 

10. Order for Entry of Judgment: Judgment shall enter in favor of the plaintiff landlords for $7590 (landlords’ rent claim) – $2000 (rent abatement) = $5,590.

 

So entered this 15th day of October, 2004.

 

 

 

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End Of Decision

 

HOUSING COURT

The Greek and German Trust, Plaintiff v. Marta Alvarado Defendant

 

 

 

 

Docket # DOCKET NO. 04-SP-03755

Parties: The Greek and German Trust, Plaintiff v. Marta Alvarado Defendant

Judge: /s/Dina E. Fein

Associate Justice

Date: October 14, 2004

Findings, Rulings and Orders of the Court

 

The above captioned summary process (eviction) case came before the court on October 14, 2004, after which the following findings of fact and rulings of law are to enter:

1. The tenancy between Defendant (tenant)and Plaintiff (landlord) commenced as of June 1, 2004, when the landlord purchased the subject premises. The agreed upon rent is $450 per month. Rent totaling $2,250 is unpaid through October, 2004. On or around September 1, 2004, the landlord served and the tenant received a 14 day notice terminating the tenancy for nonpayment of rent.

2. In defense to the landlord’s case, the tenant raises substandard conditions at the premises. I find that numerous conditions have existed at the premises since the inception of the tenancy which violate the minimum standards of fitness for human habitation as set forth in the State Sanitary Code, including those conditions enumerated on the Code Enforcement notice entered. _ into evidence and incorporated herein. The substandard conditions include inadequate heat, an infestations of roaches and rodents, a ceiling in significant disrepair, and various leaks in the bathroom.

3. The tenants’ allegations regarding conditions at the premises constitute a defense based upon breach of the implied warranty of habitability, for which the landlord is strictly liable.

 

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Berman & Sons v. Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979). It is usually impossible to fix damages for breach of the implied warranty with mathematical certainty, and the law does not require absolute certainty, but rather permits the courts to use approximate dollar figures so long as those figures are reasonably grounded in the evidence admitted at trial. Young v. Patukonis, 24 Mass.App.Ct. 907, 506 N.E.2d 1164 (1987). The measure of damages for breach of the implied warranty of habitability is the difference between the value of the premises as warranted, and the value in their actual condition. Haddad v. Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991).

4. I find that the fair rental value of the premises was reduced by 50% ($225 per month) from June 15, 2004, through September 15, 2004. Insufficient hear further reduced the fair rental value by an additional 10% during the heating season, for the period June 1 – June 15, and September 15 – October 15. The tenant’s damages for the landlord’s breach of the warranty of habitability are $450

(contract rent) x 50% = $225 x 5 months = $1,125 + $450 x 10% _ $45 x 1.5 month = $67.50 = $1,192.50.

5. ORDER For the above reasons, and pursuant to the requirements of G.L. c. 239, section 8A, the tenant may, within ten days of the date of this order, deposit with the Clerk of this court the sum of $2,250 (landlord’s rent claim) – $1,192.50 (tenant’s damages) = $1,057.50. If she does so, the sum deposited is forthwith to be released to the landlord, and judgment for possession is to enter for the tenant. It the tenant fails to make the deposit required by this order, judgment is to enter for the plaintiff/landlord for possession and $1,057.50, at the expiration of the statutory ten day period.

6. The fair market value of the rental unit will be reduced by 50% until all repairs are completed. If the landlord believes that substantial, but not all, repairs have been completed, this case may be brought forward and the rental abatement adjusted accordingly. The landlord is forthwith to purchase and provide and electric radiator to the tenant. The tenant is hereby ordered to not use the open space heater previously purchased.

 

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7. The landlord is to arrange for effective and immediate extermination of rodents and insects from the premises.

So entered this 14th day of October, 2004.

 

 

 

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End Of Decision

 

HOUSING COURT

MAYA and MIRON ROHT, Plaintiffs v. KIZZIE VAUGHAN, Defendant

 

 

 

Docket # DOCKET NO. 04-SP-04093

Parties: MAYA and MIRON ROHT, Plaintiffs v. KIZZIE VAUGHAN, Defendant

Judge: /s/Dina E. Fein

Associate Justice

Date: November 19, 2004

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned matter came before the court for trial on November 18, 2004, after which the following findings of fact and rulings of law are to enter, as provided for under Mass. R. Civ. P. 52(a):

1. The plaintiffs (landlords) own the property located at 25 Putnam Circle, Springfield (the premises), which they rented to the defendant (tenant) pursuant to a written lease effective July 15, 2004. The contract rent for the premises is $650 per month. On or around September 21, 2004, the landlords served and the tenant received a 14 day notice terminating the tenancy for nonpayment of rent. Rent totaling $2,100 is unpaid through the rental period ending on December 14, 2004.

2. In defense and counterclaim to the landlords’ case, the tenant makes the following three

 

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basic arguments: that there are substandard conditions at the premises; that the eviction is retaliatory; and that the landlord has engaged in unfair trade practices including entering her apartment without permission, and sending her a “threatening” notice. The court will address these arguments in turn.

3. Conditions: It is more likely than not that two substandard conditions existed at the inception of the tenancy. These conditions are water seepage under the front door, with resulting carpet saturation and staining (as documented on the statement of conditions associated with the security deposit), and water seepage through a kitchen cabinet. As to all other conditions about which the tenant testified, I find that they did not exist at the inception, and that there was no notice to the landlord prior to the tenant being behind in her rent.

4. The tenant’s allegations regarding conditions at the premises constitute a defense based upon breach of the implied warranty of habitability, for which the landlord is strictly liable. Berman & Sons v. Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979). It is usually impossible to fix damages for breach of the implied warranty with mathematical certainty, and the law does not require absolute certainty, but rather permits the courts to use approximate dollar figures so long as those figures are reasonably grounded in the evidence admitted at trial. Young v. Patukonis, 24 Mass.App.Ct. 907, 506 N.E.2d 1164 (1987). The measure of damages for breach of the implied warranty of habitability is the difference between the value of the premises as warranted, and the value in their actual condition. Haddad v. Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991).

5. I find that the fair rental value of the premises has been reduce, on average, by 10% since the inception of the tenancy. The tenant’s damages for the landlord’s breach of the

 

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warranty of habitability are therefore $650 (contract rent) x 10% = $65 x 5 months (thru December 14, 2004) _ $325.

 

6. Retaliation: I do not find that the tenant engaged in any protected activity prior to receipt of the notice terminating her tenancy, and eviction complaint. The landlord is therefore entitled to a ruling in his favor on the tenant’s retaliation claim.

7. Unfair Trade Practices: The landlord entered the tenant’s apartment without notice and without her permission. This is an unfair and deceptive trade practice in violation G.L. c. 93a, and the Attorney General’s regulations thereunder.

8. In addition, the landlord sent the tenant a notice dated September 21, 2004, which purported to give her “two options to avoid eviction process:” full payment of past due rent within three days; or vacate by September 30, 2004 (nine days later). Neither of these “options” is consistent with the 14 day notice served on the same day. Service of the second notice therefore also constituted an unfair and deceptive trade practice, in violation of G.L. c. 93a, and the Attorney General’s regulations thereunder.

9. The tenant did not prove any actual damages as a result of the landlords’ unfair trade practices, and is therefore entitled under G.L. c. 93a, s.9 to an award of nominal damages, in the amount of $25 per each violation. The tenant is therefore awarded $50.

10. Order: Based upon the foregoing, and as provided for under G.L. c. 239, s.8A, the tenant shall have 10 days from the entry date of this order to deposit with the Clerk’s office the sum of $2,100 (landlords’ rent claim) – $325 + $50 = $375 (tenant’s damages) = $1,725. If the tenant deposits this sum, it shall forthwith upon request be released to the landlord and judgment for possession shall enter for the tenant, at which time the Clerk’s office is requested to schedule the case for further hearing on the issues of repairs. If the tenant

 

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fails to make the deposit, judgment for possession and $1,725 shall enter in favor of the landlord at the expiration of the 10 day period.

 

So entered this 19th day of November 2004.

 

 

 

cc: Robert G. Fields, Esq.

Clerk Magistrate Pro Tern

 

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End Of Decision

 

HOUSING COURT

PHILLIP YOCOM, Plaintiff v. JOHN REED, Defendant

 

 

 

Docket # DOCKET NO. 04-SP-04409

Parties: PHILLIP YOCOM, Plaintiff v. JOHN REED, Defendant

Judge: /s/Dina E. Fein

Associate Justice

Date: December 17, 2004

Findings, Rulings and Orders For Entry of Judgment

 

The above captioned summary process (eviction) case came before the court on December 2, 2004, after which the following findings of fact, rulings of law and judgment shall enter:

 

1. The tenancy between Defendant (tenant) and Plaintiff (landlord) commenced as of August 1, 2003, when the parties entered into a written lease. The contract rent is $1,500 per month. Rent totaling $7,500 is unpaid through December, 2004. On or around August 21, 2004, and September 14, 2004, the landlord served and the tenant received two notices terminating the tenancy for non-payment of rent.

 

2. In defense to the landlord’s case, the tenant raises substandard conditions at the premises. I find that numerous conditions existed at the premises at the inception of the tenancy, which violated the minimum standards of fitness for human habitation as set forth in the State Sanitary Code. The substandard conditions include: trash and debris left on the property and within the house; a rotted back deck; water damage to the dining room floor; water leakage in the back windows and ceilings; in the upstairs bathroom, a running toilet, a leaking tub drain gasket, a missing sink, and broken tiles; in the 2nd floor bathroom, a leaking sink; in the 1st floor bathroom,

 

 

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a leaking toilet with rot on the surrounding floor, and rotted out sink plumbing; a black ant infestation; defective railings on the rd and 3,d floors; and stained carpeting throughout the house.

 

3. In response to the tenant’s claims regarding substandard conditions of the premises, the landlord alleges that, prior to the start of the tenancy, the parties agreed that the tenant would accept the premises “as-is” and would undertake the responsibility to make necessary repairs. The landlord gave $1000 to the tenant for the building supplies, to which he later added a credit of $750 against the security deposit. I do not credit the landlord’s testimony that the tenant agreed to work for free. To the contrary, by letter dated February 20, 2004, the landlord offered to credit $750 against the security deposit in consideration for building supplies and “[the tenant’s] labor in making the necessary repairs to our property.” The statement that the landlord would credit the tenant for his labor is evidence of an agreement that did not include free labor on the part of the tenant. In addition, the landlord is prohibited by law from transferring to the tenant the responsibility of providing housing which satisfies the minimum standards of the State Sanitary Code.

 

4. The landlord further claims that the $1,000 given to the tenant, and the $750 credited to the security deposit, were misused by the tenant. Specifically, the landlord alleges that the tenant overspent for repairs to the deck, ignored major structural problems, and instead opted to replace tile in the front foyer. However, in improperly delegating his responsibility to provide proper housing to the tenant and in giving the tenant $1,000 for repairs without clear instructions on what to fix and how to fix it, the landlord assumed the risk that the tenant would undertake repairs the landlord thought to be secondary. There was clearly no meeting of the minds between the parties as to who would do what. The consequence of that confusion falls to the party with the legal duty at issue. Here the landlord had the legal duty to provide habitable premises. He

 

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was remiss is failing to discharge that duty clearly and fully. The consequence of any confusion,therefore, burdens the landlord.

 

5. The tenant’s allegations regarding conditions at the premises constitute a defense and counterclaim based upon breach of the implied warranty of habitability, for which the landlord is strictly liable. Berman & Sons v. Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979). “Where… the premises are uninhabitable from the inception of the tenancy, damages should run from that time without the necessity of a showing that the landlord knew or had notice of defects affecting their habitability.” McKenna v. Begin, 3 Mass. App. Ct. 168 (1975). The landlord is deemed to have had constructive notice of the defects that existed at the inception of

the tenancy.

 

6. It is usually impossible to fix damages for breach of the implied warranty with mathematical certainty, and the law does not require absolute certainty, but rather permits the courts to use approximate dollar figures so long as those figures are reasonably grounded in the evidence admitted at trial. Young v. Patukonis, 24 Mass.App.Ct. 907, 506 N.E.2d 1164 (1987). The measure of damages for breach of the implied warranty of habitability is the difference between the value of the premises as warranted, and the value in their actual condition. Haddad v. Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991).

7. I find that the fair rental value of the premises has been reduced by 25% on average ($375 per month), from August, 2003 through the present date, for a total of seventeen (17) months. This average takes into account that some minimal repairs have been made, and that various of the conditions are worse at some times than others. The tenant’s damages for the landlord’s breach of the warranty of habitability are therefor $1,500 (contract rent) x 25% = $375 x 17 months = $6,375.

 

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8. Finally, the money paid or credited to the tenant represents an accord and satisfaction between the parties as to any claim associated with labor expended by the tenant or materials purchased by the tenant.

 

9. ORDER. For the above reasons, and pursuant to the requirements of G.L. c. 239, section 8A, the tenant may, within ten days of the date of this order, deposit with the Clerk of this court the sum of $7,500 (landlord’s rent claim) – $6,375 (tenant’s damages) = $1,125. If he does so, the sum deposited is forthwith upon request to be released to the landlord, and judgment for possession shall enter for the tenant. It the tenant fails to make the deposit required by this order, judgment is to enter for the plaintiff/landlord for possession and $1,125 at the expiration of the statutory ten day period.

 

10. The fair market value of the rental unit will be reduced by 25% to $1125 per month until all repairs are completed. The landlord is hereby ordered to make any repairs necessary to bring the premises into compliance with the Massachusetts State Sanitary Code. The rent shall revert to the contract rate of $1,500 per month on the first rental date following completion of repairs. Any dispute concerning repairs shall be brought to the attention of the Court’s Housing Specialist Department, the determination of which shall be binding upon the parties unless superceded by the Court.

 

 

So entered this 17th day of December, 2004.

 

 

 

 

cc: Michael Gove, Esq.; Law Clerk

Kevin Byrne; Chief Housing Specialist

 

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End Of Decision

 

HOUSING COURT

LINDA QUATTLEBAUM, Plaintiff v. PAULETTE FISHER, Defendant

 

 

 

 

Docket # DOCKET NO. 04-SP-04427

Parties: LINDA QUATTLEBAUM, Plaintiff v. PAULETTE FISHER, Defendant

Judge: /s/Dina E. Fein

Associate Justice

Date: December 28, 2004

Findings, Rulings and Orders For Entry of Judgment

 

The above captioned summary process (eviction) case came before the court on December 2, 2004, after which the following findings of fact, rulings of law and judgment shall enter:

1. The plaintiff (landlord) resides in Albany, New York, and owns the property at 166 Kimberly Avenue, Springfield, comprised of two rental units (the premises). On September 3, 2004, the parties entered into a verbal rental agreement for one of the units. The agreed upon rent was $1000 per month, and the parties agreed verbally that the tenant would pay for utilities, which included electricity and gas for heat and hot water. The landlord also asked the tenant to “keep up the grounds,” and attempt to procure another tenant for the second rental unit. The tenant gave the landlord $1000 as a security deposit, the landlord gave the tenant a key, and the tenant began moving herself and her family into the unit.

2. It was understood by the parties at the inception of the tenancy that the tenant receives a “Section 8” subsidy, and that her rent would be paid by HAP, Inc., assuming the premises passed

 

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inspection. When the tenant took possession of the premises, they were unclean and in disrepair. The tenant and her family undertook significant cleaning, including dealing with accumulated debris that was left at the premises by former tenants. On September 10, 2004, the premises failed an inspection by HAP. The HAP inspection report (Exhibit 7) cited numerous substandard conditions. Although the substandard conditions were extensive, and included structural, electrical, and plumbing defects within the tenant’s unit and in common areas, the conditions were amenable to repair.

3. On September 20, 21, and 22, 2004, an agent of the landlord, Mr. Howlette Williams, began repairs at the premises. Mr. Williams was supposed to return to the premises on September 24, 2004, to continue making repairs. On September 23, 2004, the tenant received a telephone call from a realtor, informing her that the property was being sold to an “investor.” Mr. Williams did not return on September 24. Rather, the tenant received a letter dated September 24 from the landlord, informing her that the property had been sold, and that the tenant “and the family in the attached

apartment” would have to vacate the premises by November 1, 2004.

4. On October 6, 2004, the tenant awoke to discover that the water service to the premises had been discontinued by the Springfield Water and Sewer Commission (the Commission), due to nonpayment of the water bill. The tenant applied in this court for a temporary restraining order against the landlord and the Commission, seeking restoration of the water service. The court takes judicial notice of that case, Docket Number 04-CV-0491, in which the Commission agreed on October 6, 2004 to restore water to the premises.

5. On October 28, 2004, water to the premises was shut off in the basement by an agent of the landlord . The tenant contacted the Department of Code Enforcement (Code Enforcement).

 

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Code Enforcement inspected the premises, and sited the landlord for a defective faucet and shut off in the kitchen, which caused water to flow at a heavy rate from the faucet. Code Enforcement also cited the landlord for a sink in the second floor bathroom which was not connected to the drainage system, and therefore not usable. The tenant again petitioned this court for relief as to the landlord and her realtor (Docket Number 04-CV-00531). Sometime on or before November 3, 2004, when all parties to that case appeared on the tenant’s petition, Mr. Williams fixed the kitchen and bathroom sinks.

6. The tenant has incurred approximately $500 in expenses which she attributes to the defective conditions at the premises. These expenses include the cost of parts which the tenant purchased in order to have the stove repaired; and a gas bill which was excessive, in the tenant’s view, because hot water was being lost due to the plumbing defects.

7. Rent totaling $4,000 is unpaid through December of 2004. On or around September 29, 2004 the landlord served and the tenant received a rental period notice terminating the tenancy without cause.

8. I find that numerous conditions have existed at the premises since the inception of the tenancy which violate the minimum standards of fitness for human habitation as set forth in the State Sanitary Code. The substandard conditions include those listed on the HAP inspection notice dated September 10, 2004. The tenant’s allegations regarding conditions at the premises constitute a defense and counterclaim based upon breach of the implied warranty of habitability, for which the landlord is strictly liable. Berman & Sons v. Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979). Where substandard conditions exist at the inception of the tenancy, “damages should run from that time without the necessity of a showing that the landlord knew or had notice of defects affecting their habitability.” McKenna v. Begin, 3 Mass. App. Ct. 168 (1975).

 

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9. It is usually impossible to fix damages for breach of the

implied warranty with mathematical certainty, and the law does not require absolute certainty, but rather permits the courts to use approximate dollar figures so long as those figures are reasonably grounded in the evidence admitted at trial. Young v. Patukonis, 24 Mass.App.Ct. 907, 506 N.E.2d 1164 (1987). The measure of damages for breach of the implied warranty of habitability is the difference between the value of the premises as warranted, and the value in their actual condition. Haddad v. Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991).

10. I find that the fair rental value of the premises was reduced by 25%, on average, as a result of substandard conditions from September, through December 2004. This average takes into account that some repairs were effectuated in September, and others in October, but that various serious conditions remain to be repaired. The tenant’s damages for the landlord’s breach of the warranty of habitability are therefore $1000 (contract rent) x 25% = $250 x 4 months = $1000.

11. That court also rules that the landlord’s failure to provide water to the premises constitutes a violation of G.L. c. 186, s. 14 (s.14). While the landlord may not have intended specifically that the tenant be without water, she nevertheless wholly disregarded her obligations to pay the water bill and maintain the plumbing facilities. This constitutes a willful or intentional violation of s. 14. Compare Montanez v. Bagg, 24 Mass.App.Ct. 954, 956, 510 N.E.2d 298, 300 (1987) (“The `willful or knowing’ requirement of s. 9(3), goes not to actual knowledge of the terms of the statute, but rather to knowledge, or reckless disregard, of conditions in a rental unit which, whether the [landlord] knows it or not, amount to violations of the law.”). The tenant’s alleged actual damages resulting from this violation ($500) being less that the statutory damages, the tenant is awarded three months rent per violation. The tenant is therefore awarded $1000

 

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(contract rent) x 3 = $3000 x 2 violations = $6,000.[1]

12. This being an eviction not-for-cause,[2] the tenant is free to bring counterclaims, as she did. The landlord testified at trial to concern that she will not be able to go forward with the anticipated sale of the premises if she does not recover possession. While the court recognizes that this as a real consideration for the landlord, it does not control the disposition of the case. The tenant has brought valid counterclaims, and established damages in excess of those claimed by the landlord, which precludes the landlord from recovering possession. Both the landlord and the tenant have legitimate and legally cognized interests in the property, and the adjudication of those competing interests must be in accord with the governing statutes. When the landlord rented to the tenant in September, as I find she did, she undertook certain legal obligations. Simply put, the law does not permit the landlord to discharge her legal obligations by selling the property, and being done with it.

13. ORDER. For the above reasons, and pursuant to the requirements of G.L. c. 239, section 8A, judgment for possession

and $1000 + $6000 = $7000 (tenant’s damages) – $4000 (landlord’s rent claim) = $3000, is to enter for the defendant tenant. At the election of the tenant, this sum may be applied against future rent.

14. The fair market value of the rental unit will be reduced by 25%, to $750, until all repairs are completed. The landlord is hereby ordered to make any repairs necessary to bring the premises into compliance with the Massachusetts State Sanitary Code. The rent shall revert to

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[1] Requiring the tenant to pay for heat and hot water, without a written agreement to that effect, also constitutes a violation of Chapter 93a and the Attorney General’s regulations thereunder. As the tenant did not raise this claim, however, no damages will be awarded.

 

[2] Although the complaint nominally alleged grounds, none were alleged in the notice to quit, which governs.

 

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the contract rate of $1000 per month on the first rental date following completion of repairs. Any dispute concerning repairs shall be brought to the attention of the Court’s Housing Specialist Department, the determination of which shall be binding upon the parties unless superceded upon motion to the Court.

 

So entered this 28th day of December, 2004.

 

 

 

 

cc: Kevin R. Byrne,

Chief Housing Specialist

 

Michael Gove, Esq.

Law Clerk

 

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End Of Decision

 

HOUSING COURT

CHICOPEE HOUSING AUTHORITY, Plaintiff v. DACASTY FONTANEZ, Defendant

 

 

 

Docket # DOCKET NO. 04-SP-4736

Parties: CHICOPEE HOUSING AUTHORITY, Plaintiff v. DACASTY FONTANEZ, Defendant

Judge: /s/Dina E. Fein

Associate Justice

Date: July 14, 2005

RULING AND ORDER ON DEFENDANT’S MOTION TO DISMISS

 

The above-captioned matter came before the court on the defendant’s (tenant’s) motion to dismiss for failure to state a claim. As provided for under Mass: R. Civ. P. 12(b), because the parties have offered, and the court will consider, matters outside of the pleadings, the motion will be treated as one for summary judgment under Mass. R. Civ. P. 56. Upon consideration of the parties’ submissions and arguments, and for the reasons set forth below, the tenant’s motion is allowed.

1. On November 22, 2004, the plaintiff (landlord, CHA) sent the defendant (tenant) a notice which provided in pertinent part as follows:

 

On October 6, 2004 the Chicopee Police Department executed a Search warrant for Controlled Substances at 70 Plante Circle, Chicopee, MA and Mr. Alex Fontanez was charged at your unit (70 Plante Circle, Chicopee, MA) with: Drug, Cultivate-Manufacture Class D and Drug Possession Class D.

 

You are hereby notified pursuant to MGL Chapter 139, Section 19 (cope attached) that the Chicopee Housing Authority considers your lease void, and possession of 70 Plante Circle, Chicopee, MA reverts

 

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back to the Authority…

 

2. On or around November 29, 2004, the landlord served a summary process summons and complaint on the tenant, setting forth essentially the same allegations as those contained in the letter dated November 22, 2004. On December 6, 2004, that complaint was entered in court, and the tenant responded with the pending motion to dismiss, in support of which she advances three arguments: that the complaint fails to state a claim under G.L. c. 139, s.19; that the landlord failed to provide a grievance hearing; and that the landlord failed properly to terminate the tenant’s lease under governing federal law.

3. For purposes of the first two arguments advanced by the tenant, this case is analogous to Chicopee Housing Authority v. Badillo (Western Div. Housing Court, Docket No. 05-SP-00415, Ruling and Order on Defendant’s Motion to Dismiss, May 19, 2005). As in Badillo, here the letter dated November 22, 2004 sufficed to inform the tenant that her tenancy was being terminated, and the reasons therefore. G.L. c. 121B s. 32; New Bedford Housing Authority v. Olan, 435 Mass. 364, 373,758 N.E.2d 1039, 1047 (2001).[1] In addition, for the reasons set forth in Badillo and incorporated by reference herein, this termination falls within the statutory and contractual exceptions to the requirement of a grievance hearing, and the tenant is not entitled to dismissal for CHA’s failure to afford one.

4. One important factor distinguishes this case from Badillo, however, and is ultimately diapositive: this is a federally-subsidized public housing unit. This tenancy, and the

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[1] The tenant does not argue that Alex Fontanez is unrelated to her household. As such, and given their shared last name, I am drawing a reasonable inference in favor of the landlord that Alex Fontanez is a member of the tenant’s household.

 

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procedure for terminating it, are governed by federal statute and regulations. The tenant argues that CHA violated the governing statute and regulations by sending a notice (the letter dated November 22, 2004) which failed to afford a reasonable period of time for termination of the tenancy, and failed to include necessary language. I agree.

5. The controlling federal statute requires CHA to give “adequate written notice of termination of the lease which shall not be less than…a reasonable period of time, but not to exceed 30 days…in the event of any drug-related…criminal activity…” 42 U.S.C. s. 1437d(l)(4)(A)(ii). The federal regulations use essentially the same language, modified only so as to provide for “[a] reasonable period of time considering the seriousness of the situation…” 24 C.F.R. s.966.4(1)(3)(i)(B). CHA’s lease with the tenant herein mirrors the statutory and regulatory language, and

specifically references the statutory basis for this sought eviction. The lease provides as follows: “The CHA may terminate this lease by written notice of:…[a] reasonable time considering the seriousness of the situation (but not in excess of 30 days)…for a violation of the Common Nuisance Statute (M.G.L. Ch. 139 s. 19 and 20)(sic).” (Exhibit 3 to Plaintiff’s Opposition to Defendant’s Motion to Dismiss.)

6. The notice dated November 22, 2004 purported to void the lease between the parties, and further provided that possession of the subject premises “reverts back to the Authority.” The only reasonable interpretation of this notice is that it terminated the tenant’s lease immediately, no other period being specified. The question presented, therefore, is whether, under the circumstances of this case, immediate termination comports with the statutory, regulatory, and contractual requirements for a reasonable period of time. The court concludes that it does not.

 

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7. The court need not reach the question of whether circumstances might exist in theory under which immediate termination would constitute a reasonable period of time, as the record makes clear that no such circumstances exist herein. In this case, the precipitating event for the termination occurred on October 6, 2004, when Alex Fontanez was arrested at the premises for drug-related activity. The notice purporting to terminate the tenancy based on that activity was not sent until November 22, nearly six weeks later, and the record does not suggest any intervening events which might have added to the urgency of the situation. Drawing all reasonable inferences in favor of the CHA as is required at the summary judgment stage, it is clear that immediate termination of a tenancy based only on events which had occurred many weeks previously, and in the absence of any ongoing lease violations, does not constitute a reasonable period of time, as a matter of law. The notice is therefore defective.

8. In addition to failing to extend a reasonable period of time, the notice dated November 22 also failed to include language required by federal statute, 42 U.S.C. s. 1437d(l)(7), and regulations, 24 C.F.R. s.966.4(l)(3)(ii). Specifically, the notice failed to inform the tenant of her right to examine documents and reply to the allegations against her; and failed to include language required when a grievance hearing is not available. As the notice was fatally defective for its failure to extend a reasonable period of time before terminating the tenancy, the court need not reach the question of whether these more technical omissions would, alone, have rendered the notice defective.

9. Order for Entry of Judgment: For the reasons set forth herein, the defendant’s motion for summary judgment is allowed. Judgment for possession shall enter in favor of the defendant. This order is without prejudice to the plaintiff’s right to request injunctive

 

 

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relief concerning the defendant’s use of the subject premises, should such a request be – warranted.

 

So entered this 14th day of July, 2005.

 

 

 

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End Of Decision

 

HOUSING COURT

GORAN’S INVESTORS, INC., Plaintiff, LUIS ORTIZ and ROSA MERCADO, Defendants

 

 

Docket # DOCKET NO. 04-CV-0318

Parties: GORAN’S INVESTORS, INC., Plaintiff, LUIS ORTIZ and ROSA MERCADO, Defendants

Judge: /s/Dina E. Fein Associate Justice

Date: September 1, 2005

RULINGS AND ORDERS ON CROSS-MOTIONS FOR SUMMARY JUDGMENT, AND DEFENDANT’S – MOTION FOR SANCTIONS UNDER RULE 11

 

This matter came before the court for hearing on the parties’ cross-motions for summary judgment, and the defendants’ motion for Rule 11 sanctions. Upon consideration of the parties’ arguments and written submissions, the court rules and orders as follows:

1. This case originated as a summary process case, in which the plaintiff /defendant-in-counterclaim (hereinafter “Goran’s”) sought to evict the defendants/plaintiffs-in-counterclaim (hereinafter “tenants”). The issue of possession was resolved, and the tenants’ counterclaims were transferred to the civil docket. The parties have stipulated to the certification of two classes as to which the tenants are representative, defined as follows:

 

– All persons who paid a fee as part of the application process for a Massachusetts apartment from the defendants, from four years prior to the commencement of the defendants’ counterclaims in this case until the termination of the use of the application fee by the plaintiff.

 

– All Massachusetts tenants of the plaintiff, Goran’s Investors, Inc. (“Gorans’s), who executed any document -which allowed a late charge by Goran’s for rent owed prior to the expiration of thirty days from the rent due date, or who paid a late charge without executing such document, from four years prior to the commencement of the defendants’

 

 

 

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counterclaims in this case until the termination of the use of such document by the plaintiff

 

UNDISPUTED FACTS

 

2. Application Fees: In or around April, 2001, the tenants applied to rent an apartment from Goran’s and completed a written “rental application.” The following language was included in small print at the bottom of the rental application form:

 

If applicant withdraws application within two (2) days, the apartment owner will retain a cancellation fee of $30.00. If applicant cancels after two (2) days, all monies deposited shall be forfeited to the apartment owner. In any case, the owner may retain a processing charge of $30.00. Acceptance of application is not binding on apartment owner or agent. If approved, all monies deposited with this application will be applied towards security deposit and/or processing fee at owners (sic) discretion. Management shall not be liable for any delay in the date when apartment unit is ready for occupancy. First month’s rent and security deposit must be paid prior to move in, by cashier’s check or money order only.

 

3. The tenants paid a $30 fee when they submitted their application, and the rental application was approved. During the time period relevant hereto, approximately 300 people executed rental applications substantially similar to that executed by the tenants, and Goran’s collected approximately $2,175 in application fees. [1] [2] Credit checks were done for some, but not all, applicants. Goran’s did not charge an application fee to all applicants; no application fee was charged to applicants Goran’s knew it would reject. The application fees were not applied to first month’s rents, last month’s rents, security deposits, or key/lock installation fees.

 

4. Late Fees: The tenant and others similarly situated executed documents entitled “Tenant Agreement Prior To Moving In Apartment,” on which they were identified as “tenant(s),” and

 

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[1] Although the tenants paid a $30 application fee, the record indicates that some applicants were charged a $25 application fee.

[2] Although the facts are recited in the past tense, the record does not indicate whether Goran’s practice of charging an application fee continues, or not.

 

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indicated as their residences the apartments they rented from Goran’s. The document included the following provisions relevant hereto:

 

 

I also understand that if my rent is not paid before the 10th of the month, I will have to pay a $25 late fee.

 

I understand that the management requires the following:

 

I cannot terminate my month to month agreement minimal of one year, unless the management is not satisfied with me, based on, that I do not pay my rent on time or I have violated any part of the agreement…

 

5. The tenants were charged late fees at least three times during the course of their tenancy with Goran’s. During the time period relevant hereto, Goran’s collected at least $1,725 in late fees assessed before the expiration of thirty days from the rental due date, from the tenants and others similarly situated. An additional $4,860 was collected in late fees from tenants with prior monthly balances.

 

SUMMARY JUDGMENT STANDARD

 

6. Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Mass.R.Civ.P. 56(c). See also, Cassesso v. Commissioner of Correction, 390 Mass. 419, 422, 456 N.E.2d 1123 (1983); Community Nat’l Bank v. Dawes, 369 Mass. 550, 553, 340 N.E.2d 877 (1976). The moving party bears the burden of establishing the absence of a triable issue, and entitlement to judgment as a matter of law, based on the summary judgment record. Pederson v. Time, Inc., 404 Mass. 14, 16-17, 532 N.E.2d 1211 (1989).

7. A moving party which does not bear the burden of proof at trial is entitled to summary judgment if it submits affirmative evidence, unmet by countervailing materials, that either

 

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negates an essential element of the nonmoving party’s case or demonstrates that the nonmoving party has no reasonable expectation of proving an essential element of its case. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991). “If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact …” Pederson, 404 Mass. at 17, 532 N.E.2d 1211. In ruling on a motion for summary judgment, the court views all facts and inferences reasonably drawn therefrom in the light most favorable to the nonmoving party. Bisson v. Eck, 430 Mass. 406, 407, 720 N.E.2d 784 (1990); Gray v. Giroux, 49 Mass.App.Ct. 436, 437, 730 N.E.2d-338 (2000).

 

DISCUSSION

 

 

8. Application Fees: G.L. c. 186, s.15B (“Section 15B(1)(b)”) provides in pertinent part as follows:

 

(1)…(b) At or prior to the commencement of any tenancy, no lessor may require a tenant or prospective tenant to pay any amount in excess of the following:

(i) rent for the first full month of occupancy; and,

(ii) rent for the last full month of occupancy calculated at the same rate as the first month; and,

(iii) a security deposit equal to the first month’s rent provided that such security deposit is deposited as required by subsection (3) and that the tenant is given the statement of condition as required by subsection (2); and,

(iv) the purchase and installation cost for a key and lock.

 

8. The question framed by the parties’ cross-motions for summary judgment is whether or not Goran’s practice of charging non-refundable application “processing charge[s]” which were not credited to first or last month’s rent, security deposit, or key and lock costs, violates Section 15B(l)(b). The tenants argue that it does. Goran’s submits that it does not, arguing that applicants are neither tenants nor prospective tenants.

 

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9. Goran’s argues that the restrictions set forth in Section 15B(l)(b) attach only at such time as the parties “have negotiated and/or agreed on specific terms of tenancy and the lessor has at least negotiated andlor agreed to lease his or her premises to the lessee on a periodic basis;” that is, when the parties are “set to begin the tenancy.” (Memorandum of Law in Support of the Plaintiff’s Motion for Summary Judgment on the Class Counterclaims, p.11.) The soft and variable standard proposed by Goran’s (“negotiated and/or agreed on,” “at least negotiated”) is itself evidence of the argument’s flaws. Taken to its unsupportable but logical extreme, the argument would permit lessors to assess all sorts of charges to those seeking apartments, right up to the exact moment of signing a written lease or, adopting Goran’s position with respect to tenancies at will, taking actual possession. Such a result is precisely contrary to the policy goals intended by the Legislature, as manifest by the legislative history and plain language of the statute.

10. As originally drafted, Section 15(B)(1) read in pertinent part: “At the commencement of any tenancy, no lessor may require a tenant to pay any amount in excess of the following…” By St.1978, c. 553, s. 2, an emergency act, approved July 22, 1978, the Legislature amended the statute, as a result of which it now reads: “At or prior to the commencement of any tenancy, no lessor may require a tenant or prospective tenant to pay any amount in excess of the following…” (Emphasis added). In making these specific changes, the Legislature extended the reach of Section 15B(l)(b) in two ways which are relevant and contrary to Goran’s position herein: the statute now applies to individuals who are not yet tenants; and it prohibits other than the enumerated charges by

lessors before a tenancy commences as well as at its commencement. The court is required by fundamental principles of statutory construction to afford the language of Section 15B(1)(b) its plain meaning. Boylston v. Commissioner of Revenue, 434 Mass. 398,

 

 

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405, 749 N.E.2d 684, 689 (2001). ” `The interpretation of well-defined words and phrases in the common law carries over to statutes’ as long as such interpretation `appear[s] fitting and in the absence of evidence to indicate contrary intent.’ ” Leardi v. Brown, 394 Mass. 151,159, 474 N.E.2d 1094, 1101 (1985) quoting, Sutherland Statutory Construction s. 50.03 (Sands 4th ed. 1983).

11. Goran’s attempts to chart a course around the plain language of the statute by suggesting that is applies only at such time as a tenancy has been established – “is set to being.” This interpretation imputes to the language of the statute a meaning which is not in any way “plain,” and is. unfortunately tortured as a result. At the time Goran’s assessed charges to process their applications, the tenants herein and others similarly situated were “prospective” tenants as that

term is commonly defined and understood, meaning “relating to or effective in the future…likely to be or become…” Merriam-Webster Online Dictionary. Nor is Goran’s assisted by advancing, in effect, the immaterial question of precisely where these individuals fall on the continuum of “likely to become” tenants. As a factual matter, Goran’s does not charge an application fee at all to those individuals who are not likely to be accepted, necessarily signifying that those who are charged are relatively more likely to become tenants. In addition, Section 15B(1)(b) deals with lessors and lessees in relation to one another; as to this landlord, anyone who applies is a prospective tenant. The interpretation of Section 15B(1)(b) advanced by Goran’s would improperly “negate [its] legislative intent [and] defeat its intended utility.” Milton Commons Associates v. Board of Appeals of Milton,14 Mass.App.Ct. 111,117, 436 N.E.2d 1236, 1240 (1982).

13. Finally, Goran’s argument that these fees are “reasonably related to the Landlord’s clerical and administrative functions” (Memorandum of Law in Support of the Plaintiff’s Motion

 

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for Summary Judgment on the Class Counterclaims, p. 13), such as credit checks, also fails on the undisputed factual record and as a matter of law. The record indicates that Goran’s did not do credit checks for all applicants to whom it charged the application fee, nor is there any indication that the application fee bears a relationship to the cost of doing a credit check, or any other “function.” In addition, the determination about whether to exempt charges for “clerical and administrative functions” from Sectionl5B(l)(b) is properly vested with the Legislature; it is not for the court to impose a limitation on the statute which the Legislature could have, but did not, include.

 

14. Late Fees: Goran’s argues that its practice of imposing $25 late fees before such time as rent is thirty days overdue does not violate G.L. c. 186, s.15B(1)(c) (“Section 15B(1)(c)”), which provides as follows: “No lease or other rental agreement shall impose any interest or penalty for failure to pay rent until thirty days after such rent shall have been due.” Goran’s argument regarding late fees is entirely without merit. _

15. Goran’s required tenants to sign a “Tenant Agreement Prior to Moving Into Apartment” form which obligated the tenant to pay a $25 fee if rent is not paid by the 10th of the month. In attempting to avoid the irrefutable conclusion that the document itself and the resulting practice of collecting late fees before rent is thirty days overdue both violate Section 15B(l)(c), Goran’s argues as follows: that the document is not a lease, and therefore does not violate Section 15B(l)(c); that the documents is not a rental agreement, and therefore does not come under the purview of Section 15B(1)(c); that “the Landlord concedes that liability may exist for those occasions where late fees were charged or collected in contravention of the pertinent section of M.G.L. c. 186, s.15B that prohibits such acts.” (Memorandum of Law in Support of the Plaintiff’s Motion for Summary Judgment on the Class Counterclaims, p.7); that Goran’s was

 

– 7-

 

“otherwise entitled to collect late fees pursuant to the parties’ verbal lease agreement.” (Memorandum of Law in Support of the Plaintiff’s Motion for Summary Judgment on the Class Counterclaims, p.7); and that “[i]n Massachusetts, landlords are entitled to impose a late fee for overdue payments, so long as the fees are reasonably related to administrative carrying costs.” (Memorandum of Law in Support of the Plaintiff’s Motion for Summary Judgment on the Class Counterclaims, p.8). [3]

16. Goran’s argument regarding late fees fails at many levels. The argument is internally inconsistent, denying liability under the statute on the one hand (and moving for summary judgment based thereon), while simultaneously conceding the possibility of liability on the other.-In addition, the argument overlooks entirely the language of Section 15B(l)(c), which specifically applies to leases or other rental agreements; blurs improperly and erroneously the distinction between leases and other rental agreements; mischaracterizes the meaning of “rental agreement;” and misstates the law. (See, footnote 3). The plain language of Sectionl5B(1)(c) prohibits Goran’s practices of utilizing a “tenant agreement” form which authorizes the imposition of late fees on rent less than thirty days overdue, and collecting late fees thereunder.

17. Rule 11 Sanctions: The tenants have moved for sanctions pursuant to Mass. R. Civ. P. 11(“Rule 11”), with respect to Goran’s motion for summary judgment on the issue of late fees. Rule 11 provides in pertinent part as follows: “The signature of an attorney to a pleading

 

————————-

 

[3] In support of this statement, Goran’s cites to 14A Mass. Practice Series, Alperin & Shubow, Summaiy of Basic Law, 3rd Ed. (West Pub. Co., 1996) s.s. 10.61, 10.62. These sections of the Mass. Practice series concern liquidated damages, do not in any sense support the proposition for which they are cited, do not address late fees in the landlord/tenant context, and cannot reasonably be read as bearing at all on the issue before the court. The source was inappropriately cited as standing for a principle of law for which no other authority was offered. There is, in short, no authority for this proposition, very much contrary to the impression created by Goran’s memorandum.

 

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constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is a good ground to support it; and that it is not interposed for delay.”

 

[R]ule 11(a) authorizes a judge to impose attorney’s fees and costs where an attorney has failed to show a subjective good faith belief that the pleading was supported in both fact and law. Good faith includes, among other things, an absence of design to defraud or to seek an unconscionable advantage. Although this standard is less demanding than the objective standard embodied in the amended Federal rule (which obliges attorneys to engage in some prefiling inquiry), the Massachusetts] rule does not excuse an attorney’s “wilful ignorance” of facts and law which would have been known had the attorney simply not consciously disregarded them.

Van Christo Advertising, Inc. v. M/A-COM/LCS, 426 Mass. 410, 416, 688 N.E.2d 985, 990 (1998)(citations omitted).

 

18. The imposition of sanctions is and should be a tool of last resort to insure against frivolous litigation. In requiring only subjective good faith, Rule 11 is intended to allow for zealous advocacy, creative arguments, and bona fide differences of opinion. Essentially all that Rule 11 demands is some basis in law and fact for the position advanced. Unfortunately, I must conclude that there was simply no basis whatsoever for Goran’s position with respect to late fees. The statute is clear, and the case law on point is apposite to Goran’s position. The arguments around these impediments were inconsistent at best, disingenuous at worst. The tenants’ motion for sanctions is allowed, and the tenants are awarded attorney’s fees and costs incurred in opposing Goran’s motion as to Class Claims One and Two. [4]

16. Order for Entry of Partial Judgment: Based upon the foregoing, the plaintiff’s Motion for Summary Judgment on the Class Counterclaims filed by the Class Defendants/Tenants is

 

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[4] The tenants having prevailed on their cross-motion for summary judgment, they are in any event entitled to an award of fees and costs under G.L. c. 186, Section 15B. This ruling should

not be read as allowing for duplicative recovery of fees and costs.

 

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denied. The Defendants’ Motion for Partial Summary Judgment is allowed. Judgment shall be entered in favor of the defendants/plaintiffs in counterclaim on Class Claims One, Two, Three and Four. The Defendants’ Request for the Imposition of Sanctions is allowed. The Clerk’s office is requested to schedule this matter for further pre-trial conference, for the purpose of scheduling the balance of the litigation.

 

So entered this 1st day of September, 2005.

 

 

 

cc:

Karen-Ann Huntoon, Esq.

Assistant Clerk-Magistrate

 

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End Of Decision

 

HOUSING COURT

MOHAMMED MOULINE, et al v. EMMANUEL GREENSPAN, et al

 

WESTERN DIVISION

HAMPDEN, SS

 

 

Docket # DOCKET NO. 06-CV-0259

 

Parties: MOHAMMED MOULINE, et al v. EMMANUEL GREENSPAN, et al

 

Judge: /s/ Dina E. Fein

Associate Justice

 

Date: January 30, 2007

 

RULINGS AND ORDER ON DEFENDANT’S MOTION TO DISQUALIFY PLAINTIFFS’ COUNSEL

The above-captioned matter is before the court on the defendant Emmanuel Greenspan’s (“Mr. Greenspan’s”) motion to disqualify plaintiffs’ counsel. For the reasons set forth herein, the motion is denied.

1. Findings of Fact: The facts, while characterized differently by the parties, are largely undisputed.[1] In April, 2004, Mr. Greenspan, on behalf of Greenspan Realty as the agent for Mohammed and Fouzia Mouline, retained Archer Battista, a partner with the law firm of Lyon and Fitzpatrick (“the firm”) to handle miscellaneous landlord/tenant matters. During the period April through June, 2004, the firm performed 3.10 hours of work for Greenspan Realty as agent

 

———————-

 

[1] At hearing on the defendant’s motion to disqualify, Mr. Greenspan, who is self-represented at present, was permi

tted to prese

nt thoro

ughly his versi

on of the relev

ant backg

 

GR:”1

4324″

>roun

d. In reach

ing these findi

ngs of fact, I have also considered the affid

avit of plain

tiffs

‘ couns

el, the docum

ents attac

hed there

to (most of which have been relie

d upon by both parti

es), and the court file, of which I take judic

ial notic

e.

 

 

-1-

 

 

for the Moulines. The work consisted of dealing with a tenant known as Manny’s Auto Sales, and researching the requirements of the State Sanitary Code as regards appliances. The firm was paid in part for its services. In October, 2004, the firm inquired of Mr. Greenspan regarding an outstanding balance, and the need for further representation. Having no response to that inquiry, the firm closed its relevant files in February, 2005, and wrote off the outstanding balance. No work was performed by the firm on behalf of Mr. Greenspan in his individual capacity; all of the work was in Mr. Greenspan capacity d/b/a Greenspan Realty, as agent for the Moulines.

2. In November, 2005, the Moulines retained Robert Sacco, a partner with the firm, to represent them with regard to properties which they owned and Greenspan Realty managed, their attempts to sell the properties and, eventually, a dispute which arose with Mr. Greenspan concerning those sales and his alleged financial mismanagement of their real estate affairs. On or around May 12, 2006, Attorney Sacco served Mr. Greenspan with a demand letter under Chapter 93A. The complaint in this case was filed on May 12, 2006. On behalf of the Moulines, Attorney Sacco sought a preliminary injunction on or around July 7, 2006, at which time Mr. Greenspan was represented by counsel. By order entered on July 24, 2006, the injunction was allowed in part, and the parties pursued their litigation thereafter, through counsel.

3. On November 9, 2006, the court allowed the motion of counsel for Mr. Greenspan for leave to withdraw. Thereafter, Mr. Greenspan appeared pro se at a number of hearings, as both the moving and the opposing party.[2] On or around January 3, 2007, Mr. Greenspan filed his motion to disqualify Attorney Sacco from representing the Moulines herein, arguing that the

 

———————-

 

[2] The court has recently ordered the parties to brief the applicability to this case of the recent decision in LAS

v. Pagan, 447 Mass. 847 (2006).

 

-2-

 

representation is barred by Rule 1.9(a) of the Massachusetts Rules of Professional Conduct.

4. Discussion: Rule 1.9(a) of the Massachusetts Rules of Professional Conduct provides as follows:

 

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation.

 

5. The courts utilize two criteria to determine whether an attorney should be disqualified based on a conflict with a former

client. “First, the current representation must be `adverse’ to the interests of the former client. Second, the matters of the two representations must be `substantially related.” Adoption of Erica, 426 Mass. 55, 61 (1997), citing Bays v. Theran, 418 Mass. 685, 691 (1994).

6. Several considerations persuade the court that disqualification of Attorney Sacco is unnecessary. First, Attorney Sacco’s representation of the Moulines herein is not “substantially related” to the firm’s former representation of Greenspan Realty as agent for the Moulines. The former representation was brief and involved routine landlord/tenant matters; it did not, as far as the record reflects, touch upon the particulars of the relationship between the parties, including financial transactions between them which are at the heart of this litigation. Second, Mr. Greenspan has not alleged, nor does the record reflect, nor is there any basis for concluding that Mr. Greenspan revealed confidences during the brief former representation which could be relevant to the pending dispute. Finally, the motion to disqualify comes only after this case has been pending for many months, and after Mr. Greenspan (through counsel as well as pro se) has engaged the litigation actively and affirmatively, raising a reasonable inference that the motion is

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being advanced strategically, to obtain an advantage in the litigation.

7. “[D]isqualification, as a prophylactic device for protecting the attorney-client relationship, is a drastic measure which courts should hesitate to impose except when absolutely necessary.” Adoption of Erica, 426 Mass. at 58, quoting Freeman v. Chicago Musical Instrument Co., 689 F.2d 715, 721 (7th Cir. 1982). For the reasons set forth herein, I conclude that disqualification of Attorney Sacco is neither necessary, nor in the best interests of judicial economy and the administration of justice.

8. Order: The defendant’s motion to disqualify counsel for the plaintiffs is denied.

So entered this 30 day of January, 2007.

 

 

 

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End Of Decision

 

HOUSING COURT

DIANE PROKOP v. KIM GILMAN

 

WESTERN DIVISION

HAMPDEN, SS

 

 

Docket # DOCKET NO. 07-SP-187

 

Parties: DIANE PROKOP v. KIM GILMAN

 

Judge: /s/ Dina E. Fein

Associate Justice

 

Date: January 30, 2007

 

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned summary process (eviction) case came before the court for trial on January 25, 2007, after which the following findings of fact and rulings of law are to enter, as provided for under Mass. R. Civ. P. 52(a):

1. The plaintiff (landlord) owns the two family property located at 76 Maple Terrace, West Springfield. In May, 2006 (the inception), the landlord rented the upstairs unit at the property (the premises) to the defendant (tenant). The tenant was then living in a motel with her young children, and was anxious to move into the premises. The parties agreed that various improvements would be made over time, with the landlord agreeing to pay for materials, and the tenant agreeing to do some of the work. The agreed upon rent was $600 per month.

2. In or around November, 2006, difficulties developed between the tenant and a roommate who had moved in sometime after the inception. As a result of those difficulties, the tenant and her children vacated the premises, although she continues to have belongings there. Rent totaling $940 is unpaid through January, 2007. On or around December 4, 2006 the landlord served and the tenant received a 14 day notice terminating the tenancy for nonpayment of rent. The notice

 

-1-

 

was addressed to the tenant and her roommate, Jason Cigal. The Complaint herein names the tenant “and all other occupants.”

3. In defense and counterclaim to the landlord’s case, the tenant argues that there were substandard conditions at the premises, and that she incurred expenses associated with repairing those conditions. The landlord argues that the only repairs which were necessary at the premises were “cosmetic.” Based upon the credible evidence presented at trial, including demeanor evidence, I find that there were several conditions at the premises at the inception of the tenancy which violated the minimum standards of habitability as set forth in the State Sanitary Code. These conditions were holes in walls, defective plumbing fixtures in the bathroom, and bug and squirrel infestation. I want to state clearly, in response to the landlord’s testimony, that this does not mean the premises were a “slum,” nor that she is a “slumlord.” It would be much more accurate to say that the landlord did not take the opportunity to make improvements to the property as she should have before allowing the tenant to move in. While the landlord may have been motivated at the time by benevolence toward the tenant, that motivation does not insulate her from strict liability for breach of the implied warranty of habitability. Berman & Sons v. Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979).

4. It is usually impossible to fix damages for breach of the implied warranty with mathematical certainty, and the law does not require absolute certainty, but rather permits the courts to use approximate dollar figures so long as those figures are reasonably grounded in the evidence admitted at trial. Young v. Patukonis, 24 Mass.App.Ct. 907, 506 N.E.2d 1164 (1987). The measure of damages for breach of the implied warranty of habitability is the difference between the value of the premises as warranted, and the value in their actual condition. Haddad

 

-2-

 

v. Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991).

5. I find that the fair rental value of the premises was reduce by 15%, on average, for the period of time that the tenant actually

occupied the premises, as a result of substandard conditions. This average takes into account that some repairs were made, and that some conditions were intermittent. The tenant is not entitled to damages for the two months during which she has not actually occupied the premises; she vacated for personal reasons unrelated to the conditions, which cannot be said thereafter to have affected her use of the premises. The tenant’s damages for breach of the warranty of habitability are therefore $600 (contract rent) x 15% = $90 x 6 months (June through November, 2006) = $540.[1]

Order: Judgment shall enter in favor of the plaintiff landlord for $940 (rent claim) – $540 (tenant’s damages) = $400. The tenant has vacated the premises, except for retrieving some of her belongings, which she indicated she will do prior to January 31, 2007. The court will therefore not enter a judgment for possession. If the tenant has not removed all of her belongings by January 31, 2007, the landlord may file a motion to amend the judgment, to include a judgment for possession.

 

So entered this 30 day of January, 2007.

 

 

 

———————-

 

[1] This ruling does not adjudicate any claims which the

tenant or her children may have arising out of the presence of lead paint at the premises, if any. Any such claims are specifically reserved.

 

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End Of Decision

 

HOUSING COURT

CITY OF SPRINGFIELD, CODE ENFORCEMENT DEPARTMENT, HOUSING DIVISION v. SOURIRE, LLC., ET AL

 

WESTERN DIVISION

HAMPDEN, SS

 

 

Docket # DOCKET NO. 06-TR-038

 

Parties: CITY OF SPRINGFIELD, CODE ENFORCEMENT DEPARTMENT, HOUSING DIVISION v. SOURIRE, LLC., ET AL

 

Judge: /s/ Dina E. Fein

Associate Justice

 

Date: January 18, 2007

 

RULINGS AND ORDERS ON BAYVIEW’S MOTION IN SUPPORT OF APPROVAL OF SALE OF PROPERTY AND CITY’S MOTION FOR ISSUANCE OF A PERMANENT ORDER

The above-captioned matter is before the court on the motion of the defendant Bayview Loan Servicing, LLC as Servicer for Wachovia Bank, N.A., as Indenture Trustee (“Bayview”), to approve the sale of the subject property, and the City of Springfield’s (“City’s”) motion for issuance of a permanent order authorizing demolition of the subject property. For the reasons set forth herein, Bayview’s motion is denied, and the City’s motion is allowed.

1. Procedural Background: On January 12, 2006, the Deputy Director of the Department of Code Enforcement, Housing Division, City of Springfield (“Code Enforcement”) condemned the subject

property located at 268-284 Dwight Street Extension and 40 Oswego Street, Springfield (“the subject property;” “the property;” “the building”), and ordered the occupants to vacate. The City initiated this case on January 13, 2006, by way of a Petition to Enforce the State Sanitary Code And/Or Revised Ordinances of the City of Springfield (“the Petition”). The Petition named

 

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Sourire, LLC as the owner of the property, Bayview as the “mortgage company,”[1] Atlas Property Management as the property manager,[2] and various individuals as tenants. The Petition sought emergency injunctive relief, including an order requiring the tenants to vacate the premises.

2. On January 18, 2006, the City and Bayview agreed that Atlas Property Management would undertake certain emergency maintenance at the premises and that Bayview would pay for those services, without assuming any “liability,” nor making any representations concerning “ownership.” Over the next several months, many of the tenants agreed to vacate the premises in exchange for payments by Bayview, and conditioned upon releases of Bayview. Several tenants obtained representation of counsel, and joined claims against Sourire and Bayview. Thereafter, Bayview and Sourire both filed motions to dismiss the claims and cross claims for injunctive relief, and the City moved for appointment of a Receiver. On March 11, 2006, following evidentiary hearing over several days and a view of the property, the court allowed the City’s motion for appointment of a Receiver, and ordered the remaining occupants to vacate the property. By request of the parties, the motions to dismiss were continued generally, and have not been noticed for further hearing nor otherwise brought before the court.

3. On April 26, 2006, the City brought an emergency request before the court, seeking to restrain Bayview from conducting a scheduled foreclosure auction at the property. After hearing on April 28, 2006, the court allowed the foreclosure auction to proceed to the extent of allowing Bayview to accept bids for the property, but prohibited Bayview from transferring title to the

 

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[1] Bayview was originally identified as Bayview Financial, LP. The court subsequently allowed a motion to amend so as to name Bayview properly as Bayview Loan Servicing, LLC as Servicer for Wachovia Bank, N.A., as Indenture Trustee

 

[2] Atlas Property Management was subsequently dismissed by the City.

 

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property without approval of the court following hearing. By orders of the court dated April 28, 2006 and May 19, 2006, the court stated that Bayview, in seeking approval to transfer title, would be required to demonstrate the intention and ability of the proposed transferee to bring the subject property into compliance with “all applicable laws, codes and regulations intended for the

health, safety, and welfare of occupants of residential premises and any other individuals who may be affected by the condition of the premises.” Order dated April 28, 2006, Abrashkin, J.

4. On June 15, 2006, the court approved the Receiver’s lien pursuant to G.L. c. 111, s 127I. On October 11, 2006, the City moved for issuance of a permanent order. On November 14, 2006, Bayview moved for leave to transfer the property. Sourire has not opposed either of the pending motions, nor has it appeared for court proceedings since appointment of the Receiver.

5. Findings of Fact: The factual findings in this court’s order entered on March 2, 2006 are specifically incorporated herein. It is sufficient for purposes of this ruling to reiterate that the subject property, a 45 unit apartment block located in the “Hollywood” section of Springfield, became uninhabitable due to disrepair and inadequate management. The most recent owner of record, Sourire LLC, acquired the property in June, 2005, subject to a mortgage held by Bayview. On December 6, 2005, Bayview conducted a foreclosure auction at the premises, accepted a bid, and entered into a memorandum of sale. The prospective buyer did not, however, go forward with the purchase. After conducting the foreclosure sale, Bayview took no steps to manage the then occupied building, with the limited exception of retaining Atlas Property Management to effectuate certain emergency repairs after having been sued in this case, and without assuming liability.

6. Valley Real Estate (Valley) was appointed as Receiver of the property in March, 2006.

 

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Since its appointment, a representative of Valley has been at the property almost daily. Valley boarded and secured the property at the inception of the receivership. The security was regularly breached, however, in that boards were pulled away allowing unauthorized entry to the building. Valley was eventually required to remove the first floor rear porches and stairways, as a way of limiting access to trespassers. Valley also hired off-duty police officers to patrol the property. One of the off-duty police cars was vandalized on the first night of patrol. Valley has expended over $40,000 in maintaining the building since its appointment in March. Paul Oldenburg, the principal of Valley, does not wish to continue in the role of Receiver beyond the short term.

7. The building has never been properly rehabilitated. No permits are on record with the Building Department for any work performed there. The building is in a significantly deteriorated condition. Ninety percent of the ceilings as well as walls throughout the property are compromised with holes, broken plaster, and exposed lathe. Any smoke or fire detection system at the building is outdated, if operational at all. The condition of the building presents a significant fire hazard: the compromised ceilings and walls allow for fire to spread quickly horizontally and vertically, and the fact that the building is boarded prevents venting on the upper floors. The condition of the building also presents an increased risk of harm to firefighters, were a fire to occur. Because security at the building is frequently breached, firefighters could not assume the building to be empty in the event

of a fire, and would be required to search for people. The fact that the windows are boarded from the outside would make it difficult for firefighters to escape the building, particularly from the upper floors. And there is no power at the building to aid in firefighting.

8. Steve Desillets is presently the Code Enforcement Commissioner for the City of

 

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Springfield. He has worked for the City for 11 years, is certified in the national and Massachusetts building codes, and is charged with enforcing the Springfield building code. John Cossaboom is the Fire Marshall for the City. He has worked for the Fire Department for 30 years, and is charged with enforcing the Massachusetts fire code and pertinent city ordinances. Mr. Desillets and Mr. Cossaboom have inspected the property, and both believe that bringing the subject property into conformity with the State Sanitary Code, the Building Code, and other applicable codes would require a “substantial” rehabilitation. The court credits these opinions.

9. More specifically, the rehabilitation of this building would require a structural analysis for occupant loads; complete updating of the electrical and plumbing systems; a new heating system or systems; new walls, ceilings, floors, and windows; new kitchens and baths; and a new fire detection system with smoke and heat detectors, horns and strobes, and sprinklers.

10. A licensed architect would be required to oversee the property’s rehabilitation. The architect would be required to undertake a “existing building review,” prepare a full scale, detailed set of plans, and monitor the work. In addition, a professional fire protection engineer would be required to design the sprinkler and related fire detection system. In order to have a realistic sense of the project, it is common for prospective developers to undertake a detailed existing building review before purchasing the property.

11. Joan Lupa is an owner of NL Construction, and is licensed in Massachusetts as a construction supervisor. Ms. Lupa has been involved with rehabilitation projects since 1989, and has overseen a number of substantial rehabilitation projects including 36 unit, 48 unit, and 33 unit buildings in Springfield. Ms. Lupa testified credibly that the cost of rehabilitating a property such as the subject property, while varying based upon the materials used, would range up from

 

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$95,000 per unit; that the cost of replacing windows at the property would be in excess of $100,000; that the cost of replacing appliances at the property would be close to $90,000; and that the cost of a fire suppression and sprinkler system would be over $300,000.

12. Elizabeth Krupp is an Associate Project Director with Wynn Companies, where she works on underwriting for substantial rehabilitation projects, and monitors construction of low income housing and tax credit projects. Ms. Krupp, having viewed only the exterior of the building, testified credibly that the cost of

rehabilitating the subject property, assuming that the interiors of the units were in good condition and there was no need to replace appliances and windows (which assumptions are not consistent with the court’s observations of the property), would be a minimum of $60,000 per unit before “soft” costs such as architect, engineer, and attorney fees.

13. Paul Oldenburg, who owns Valley and serves as the Receiver of the subject property, has been working in the field of property development and management since 1965. Valley currently owns and manages between 600 and 650 units, and manages an additional 650 units which it does not own. Valley owns over 200 units in the Hollywood section itself, including one building directly abutting the subject property, and others surrounding it. Mr. Oldenburg has observed this building closely for over 25 years, and has a well informed opinion as to what would be required to rehabilitate it.[3]

 

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[3] Bayview urges the court not to credit Mr. Oldenburg’s opinion, arguing in its written submissions that he bid on the property at the foreclosure auction and, therefore, has a conflict of interest. Specifically, Bayview states in its opposition at p.7:

The foreclosure sale produced five (5) qualified bidders for the Property. The first qualified bidder was Jeffrey Oldenburg [Paul Oldenburg’s son], the Receiver for the Property. See Exhibit A. Thus, the Receiver sought to purchase the Property, and now retains seemingly limitless authority to call for the Property’s demolition. This is a clear conflict of interest by the

 

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14. In addition, Mr. Oldenburg, on behalf of Valley, has rehabilitated a number of buildings comparable to the subject property. He has rehabilitated 14 buildings in the Hollywood section alone. At present, Valley is rehabilitating a 32 unit building, similar to this building, at a cost of $124,000 per unit for “raw construction,” not including “soft costs.” Between two and three years ago Valley completed a rehabilitation project involving 104 units, at a cost of $100,000 per unit.

15. Bayview seeks leave to transfer title to the subject property to PBA Construction, LLC. (“PBA”). PBA is a New York limited liability corporation with a principal place of business at 1063 East 39th Street, Brooklyn, NY. PBA is the assignee of the $139,999 bid which was accepted at the most recent foreclosure auction on April 28, 2006.[4] PBA proposes to pay the sum of $10,001 for assignment of the bid, thereby paying $150,000 in total for the property.

16. The sole member of PBA is Paul Evans. Mr. Evans is a resident of Brooklyn, New York. His mother, sisters, brothers and cousins live in Springfield. Mr. Evans owns three residential properties, two of which are located in Springfield, one on Andrews Street, and one on Northampton Avenue. Mr. Evans’ sister lives in the Andrews

Street property. Mr. Evans intends to rehabilitate the Northampton Avenue property, but has not started yet. There have been

 

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Receiver, and an abuse of the Receiver’s powers with respect to the Property.

Mr. Oldenburg testified credibly that he did not bid

at the auction. In addition, and contrary to Bayview’s representations, Exhibit A to its opposition does not identify Mr. Oldenburg as a qualified bidder; it identifies him as having attended the sale, which is perfectly appropriate given the Receiver’s responsibilities. The second page of Exhibit A identifies the individuals (by number) who actually bid, and neither of the Oldenburgs nor Valley is among them. At a minimum, this represents a significant misunderstanding of its own materials by Bayview.

 

[4] The record does not identify clearly who made the

successful bid at auction. The assignor of the bid to PBA is an entity identified as IBMA Property Holdings, LLC, but it is not clear whether IBMA was the original bidder.

 

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“issues” regarding code violations at the Andrews Street property, for which Mr. Evans was fined by the City.

17. Mr. Evans assists his father, Ancel Evans, with property rehabilitation and management. Ancel Evans has been a general contractor for 35 years, owns seven buildings in Brooklyn, and 2 in Jamaica. Mr. Evans is assisting Ancel Evans with the development of the Jamaica properties, and is in Jamaica three or four days per month. Mr. Evans has worked on rehabilitating approximately ten properties since 1982, ranging in size from 4 unit buildings to a single 8 unit building.

18. Mr. Evans was introduced to the subject property by “an investor,” whom he did not identify. He proposes to pay $150,000 in cash for the building, and finance the rehabilitation of the property by securing a loan from Eastern Savings Bank, which is “supposed to be about $1.5” million. The loan application has been prepared by a loan consultant named Rickford Fraser. Mr. Fraser has been affiliated for seven months with The Mortgage Super Center, in East Longmeadow, although Mr. Evans identified Mr. Fraser as affiliated with a business known as “We Do Money.” Mr. Fraser closed his first commercial loan approximately six weeks ago, on an 8 unit building. Mr. Evans does not have a mortgage commitment from Eastern Savings Bank or any other financial institution. In order to pursue his loan application further, he must pay a non-refundable $10,000 deposit, have the building appraised, and secure approval through the bank’s underwriting department. He has not taken these steps to date.

19. Mr. Evan’s ability to secure a loan in the amount he is seeking depends on the performance of the building. Eastern Savings Bank requires that the building perform at 120%, income to

expenses. Ancel Evans, who has seen the subject property once, thinks it is “a pot of

 

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gold.” The property is listed for sale on the internet by United Multi Family and/or Nationwide Multi Family Brokerage. In evaluating the property for investment, Mr. Evans, Ancel Evans, and Mr. Fraser considered the income and expense information included in the listing. That information significantly overstates the income experience and potential of the building, and fails to include substantial expenses associated with the property.[5]

20. Mr. Evans has not done the level of analysis which is necessary to develop a realistic plan for rehabilitating the property. Mr. Evans has not done a “pro forma” for the property, and is not familiar with that term. His financial analysis to date is limited to a two page “cost estimate” prepared by Erskine Chaffin. Mr. Chaffin is a self-employed registered architect, but is not currently licensed in Massachusetts. Mr. Chaffin’s estimate significantly understates costs in various categories, such as windows, appliances, and fire suppression; and overlooks entirely other categories, including hard costs such as lead abatement and security, and soft costs such as survey and legal fees.

21. Mr. Evans’ demeanor while testifying, as well as that of his father and advisor, Ancel Evans, lead the court to conclude that Mr. Evans does not appreciate the scope of the project he proposes to undertake. Mr. Evans’ responses to questions were vague and incomplete. He testified, for example, both that he does not know whether there is asbestos in the building and that, “to the best of [his] knowledge” there is no asbestos, leaving the impression that he had not investigated the issue and did not view it as significant. Ancel Evans, while acknowledging that

 

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[5] In response to inquiry from the court, counsel for

Bayview was unable to say whether Bayview retained UMF to list the property. The record before the court does not establish the connection, if any, between Bayview and UMF, nor whether Bayview knew or should have known that the listing includes information which is inaccurate.

 

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he was not an expert regarding asbestos, testified cavalierly that he “could remove the asbestos [in the building] in the time [he] was sitting there being questioned.”

22. In addition, Mr. Evans is either not well informed concerning the financial aspects of the project, or not forthcoming. His responses to questions about his own finances, about the properties he owns locally, and about his previous experience with property rehabilitation, were evasive. His plan, which is to “start on one section at a time,” is not a plan at all.

23. Furthermore, Mr. Evans’ assumptions about what it will cost to rehabilitate the property are significantly off the mark by any reasonable measure. Per the loan proposal to Eastern Savings Bank,

Mr. Evans proposes to get a construction loan in the amount of $1,450,000 (which he characterized as “about $1.5 million”). Mr. Chaffin’s “cost estimate” projected a total construction cost of $1,684,000, including an architect’s fee. This represents a cost of approximately $37,500 per unit, which is far too low and entirely unrealistic. The credible opinions offered by Ms. Lupa and Mr. Oldenburg establish a realistic range of $95,000 – $124,000 per unit, for a total construction cost of $4,275,000 – $5,580,000, not including “soft costs.” Were Mr. Evans to proceed as planned, the project would be woefully undercapitalized, with no realistic possibility of bringing the property into code compliance.

24. Bayview’s Motion In Support of Approval Of Sale of Property: As indicated above, Bayview conducted a foreclosure auction at the property on December 5, 2005, accepted a bid, and entered into a memorandum of sale. By notice dated January 12, 2006, the building was condemned by the City’s Board of Health.[6] Bayview has consistently denied that it has legal

 

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[6] Bayview’s opposition to the City’s motion for issuance of a permanent order repeatedly characterizes the City as currently requesting leave to condemn the subject property. That characterization is inaccurate. The city condemned the property a year ago, with notice to

 

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responsibility to make repairs at the subject property, and has functionally abandoned the building, notably excepting its efforts to locate a buyer. It was therefore necessary for the court to appoint a Receiver on March 1, 2006, so as to insure the safety of the people then occupying the premises and, upon their vacating, to maintain security. The Receiver has worked responsibly and effectively to mitigate the conditions which existed at the property previously, including systemic disrepair, unauthorized occupants, and rampant illegal activity which terrorized the neighborhood.

25. Bayview’s motion does not arise in a vacuum, but rather against the factual background described above. For the past year, significant public resources have been expended on this property, in the form of the City’s efforts to enforce the State Sanitary Code, the disproportionate demands on public safety personnel, and the court’s involvement in overseeing the receivership. The court has an obligation to evaluate Bayview’s proposed transfer of the property with this significant expenditure of public resources in mind, and specifically so as to minimize the likelihood of significant additional public expenditures. It is not the taxpayers’ responsibility to maintain private property.

26. Regrettably, Bayview has not demonstrated that its prospective buyer has the intention or the ability to bring this property into code compliance. Mr. Evans lacks a basic understanding of the scope of this project, has not taken sufficient responsible steps to apprize himself of its scope, and therefore underestimates what is needed and what it will cost. I am mindful of the argument made on

behalf of PBA, namely that it is reluctant to invest significant money in the project until

 

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Bayview. The notice of condemnation included language explaining the recipients’ right to a hearing. No hearing was requested.

 

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such time as the court approves the transfer. There is a minimum amount which a prudent developer must do, however, in order to evaluate the viability of an investment. PBA has fallen short of that minimum. The fact that PBA is unable or unwilling to undertake a responsible investigation reinforces the court’s conclusion that it does not have the capacity to complete the project successfully. Bayview’s motion to approve the sale to PBA is therefore denied.

27. The City’s Motion for a Permanent Order: The City seeks leave to demolish the building under G.L. c. 111, s 127B (“s 127B”) which provides in pertinent part as follows:

 

If compliance with the regulations contained in said code has not been effected within one year from the date the premises have been so closed up the board of health may cause such structure to be demolished or removed…

 

28. Bayview, the only party who opposes the City’s motion, bases its opposition solely on its attempt to sell the property to PBA which, for the reasons set forth above, the court will not approve. Nor does the court discern any other basis for denying the City its statutory authority to demolish the property as requested. More than one year has transpired since the building was condemned, and code compliance has not been achieved. In point of fact, no effort whatsoever has been made over the past year to make this property habitable, and there is no party before the court indicating an intention to make repairs, or acknowledging a responsibility to do so. Nor has the City sought to compel any party to make repairs since condemning the property.

29. In the absence of any party assuming responsibility voluntarily or in response to an order sought by the code enforcement agency, the court is left with no choice but to allow the demolition to proceed. This is not a decision the court takes lightly, but no viable alternative has been advanced by the parties. The building in its current condition represents a serious threat to the health and safety of members of the public, including public safety personnel, which threat

 

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has been mitigated to date only through the responsible efforts of the Receiver. Bayview having failed to identify an appropriate transferee, and having declined, as far as the record reflects, to bid on the property itself and rehabilitate the building, the court is faced with the possibility of leaving the receivership in place indefinitely. This is not acceptable. Valley has expended over

$40,000 without reimbursement to date, and is unwilling to continue as Receiver on a long term basis. In addition, the time necessarily spent by City officials and the court in managing and monitoring a receivership of indefinite duration would unreasonably drain public resources. Finally, the building is presently uninhabitable and will remain so until and unless someone undertakes the very substantial investment necessary to accomplish code compliance. Bayview has had over a year to identify such a buyer, with no success. A receivership is not intended for the purpose of maintaining a vacant and uninhabitable building indefinitely following foreclosure, while the mortgagee tries to sell it. Consistent with s 127B, a year is long enough.

30. ORDER: For the foregoing reasons, Bayview’s Motion In Support of Approval Of Sale of Property is denied, and the City’s Motion for a Permanent Order is allowed. Within 10 days of the entry date of this order, the Receiver is requested to file an updated report, with copies to all parties.

So entered this 18th day of January, 2007.

 

 

 

cc: Dennis Powers, Esq.

Kevin R. Byrne, Chief Housing Specialist

 

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End Of Decision

 

Docket # DOCKET NO. 07-CV-00055

 

Parties: JOHN SWISTAK and DIANE SWISTAK, Plaintiffs v. TOWN OF PALMER, Defendant

 

Judge: /s/ Dina E. Fein

Associate Justice

 

Date: March 8, 2007

 

RULINGS AND ORDERS ON DEFENDANT’S MOTION TO DISMISS AND PLAINTIFFS’ MOTION TO AMEND

 

After hearing on the defendant’s motion to dismiss and the plaintiffs’ motion for leave to amend complaint, the court rules and orders as follows:

 

1. The defendant moved to dismiss the case, arguing that the Housing Court lacks subject matter jurisdiction over the claims alleged. In response, the plaintiffs moved to amend their complaint. In ruling on a motion to dismiss brought pursuant to Mass. R. Civ. P. 12(b)(1), the allegations of the complaint, as well as any favorable inferences reasonably drawn from them, are accepted as true. Ginther v. Commissioner of Ins.,427 Mass. 319, 322 (1998), citing Nader v. Cintron, 372 Mass. 96, 98 (1977). Leave to amend is within the discretion of the trial judge, and “shall be freely given when justice so requires.” Mass. R. Civ. P. 15(a). See Goulet v. Whitin Mach. Works, Inc., 399 Mass. 547, 549, 506 N.E.2d 95 (1987); Castellucci v. United States Fidelity & Guar. Co., 372 Mass. 288, 289-290, 361 N.E.2d 1264 (1977).

2. The plaintiffs’ motion to amend their complaint is allowed, and the defendant’s motion to dismiss is considered in light of the amended complaint. The defendants do not argue, nor do I conclude, that the Housing Court lacks subject matter jurisdiction to hear claims under the Massachusetts Tort Claim Act, per se. The amended complaint alleges on ongoing condition which affects the health, safety and welfare of the plaintiffs, and the

current use of their residential premises. The plaintiffs claim that the defendant is legally responsible for the condition, by maintaining an ongoing nuisance, and by its negligence. The allegations of the amended complaint and all reasonable inferences drawn therefrom suffice to establish that the case is within the subject matter jurisdiction of the Housing Court.

3. ORDER: The plaintiffs’ motion to amend the complaint is allowed, and the first amended complaint is hereby deemed filed with the court. The defendant’s motion to dismiss for lack of subject matter jurisdiction is denied. The case management conference shall proceed as scheduled on March 13, 2007 at 10:30 a.m.

 

So entered this 8th day of March, 2007.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

Scarafoni Realty, Plaintiff V. Duc Van Hugnh, Defendant

 

WESTERN DIVISION

 

Docket # 06CV 59

Parties: Scarafoni Realty, Plaintiff V. Duc Van Hugnh, Defendant

Judge: /s/ DINA E. FEIN,

Associate Justice

Date: March 9, 2007

ORDER

 

After hearing on March 9, 2006 conducted by telephone, at which a representative of the plaintiff, and Christine Greene from the Tenancy Preservation Program were present, the

following order is to enter:

 

1. The defendant, Duc Van Hugnh, is ordered to vacate the premises at 161 Bradford Street, #5, FORTHWITH.

2. If Mr. Van Hugnh returns to the premises or is otherwise found to be on the premises, he shall be deemed a trespasser and subject to arrest by the Pittsfield Police Department.

3. This order shall authorize the Berkshire County Sheriff’s Department to levy for the purposes of physically evicting the defendant FORTHWITH and without further process and shall be construed to have the same effect as the issuance of an execution for possession under M.G.L. c. 239, the Massachusetts summary process.

 

So entered this 9th day of March, 2006.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

SLAWOMIR and DOROTA SZYDLOWSKI v. DAVID CUMMINGS and JAIME JOAQUIN

 

 

 

 

Docket # NO. 07-SP-01468

Parties: SLAWOMIR and DOROTA SZYDLOWSKI v. DAVID CUMMINGS and JAIME JOAQUIN

Judge: /s/Dina E. Fein Associate Justice

Date: May 14, 2007

FINDINGS, RULINGS, AND ORDER

 

The above-captioned summary process (eviction) case came before the court for trial on May 14, 2007, after which the court finds and rules as follows:

 

1. The tenancy began on April 9, 2005. The agreed upon rent is $790 per month. Rent totaling $2,370 is unpaid through May, 2007. The landlords served and the tenants received a 14 day notice terminating the tenancy for nonpayment of rent.

 

2. The landlord have not interfered with the tenants’ right to quiet enjoyment. The landlords have not paid interest on the tenants’ security deposit of $790. The tenant are therefore entitled to interest at the rate of 5% per year, for two years, for a total due of $79.

 

 

3. Order: Pursuant to G.L. c. 239, s.8A, the tenants shall have 10 days from the entry date of this order to deposit with the Clerk’s office the sum of $2,370 (unpaid rent) – $79 (tenants’ damages for unpaid interest) = $2,291. If they do so, judgment for possession shall enter in favor

 

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of the tenants, and the funds will forthwith upon request be released to the landlords. If the tenants fail to make the deposit, judgment for possession and $2,291 shall enter in favor of the landlords at the expiration of the 10 day period.

 

So entered this 14th day of May, 2007.

 

 

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End Of Decision

 

HOUSING COURT

COMMONWEALTH OF MASSACHUSETTS and SHEILA FLYNN v. WAHCONAH GROVE STREET REALTY and DOUGLAS MALINS

 

 

Docket # NO. 05-CV-0375

Parties: COMMONWEALTH OF MASSACHUSETTS and SHEILA FLYNN v. WAHCONAH GROVE STREET REALTY and DOUGLAS MALINS

Judge: /s/Dina E. Fein, Associate Justice

Date: February 13, 2007

MEMORANDUM AND ORDER ON

PLAINTIFF-INTERVENOR’S MOTION

FOR PARTIAL SUMMARY JUDGMENT

 

The above captioned case came before the court on December 13, 2006, for hearing on the intervening plaintiff’s motion for partial summary judgment. Upon consideration of the parties’ arguments and written submissions, and for the reasons set forth herein, the plaintiffs motion for partial summary judgement is allowed in part and denied in part.

 

UNDISPUTED FACTS

 

1. The defendant, Douglas Malins (“landlord”), is the Trustee of co-defendant Wahconah Grove Realty Trust (“Wahconah”), and serves as the rental agent for its six unit property located at 21-27 Grove Street, Pittsfield, Massachusetts (“the subject property;” “the premises”). He is a resident of the Grove Street building.

2. The plaintiff-intervenor, Sheila Flynn (“tenant”), is a single mother and grandmother. On December 30, 2002, she entered into a one-year Section 8 lease agreement with the defendants for a two-bedroom apartment at the subject property. The apartment is located

 

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directly above the landlord’s residence.

3. The lease identified the tenant and her eleven year-old son as the occupants of the premises. The landlord was aware that the tenant’s three year-old grandson would be an “occasional visitor.” At the inception of the tenancy, the landlord informed the tenant that children under the age of five were not allowed in the apartment for “extended visits” as the apartment was one of three apartments at the premises that did not have lead certificates. At all times relevant hereto, it was the landlord’s policy not to allow children under the age of five to live in apartments which did not have a lead certificate.

4. The tenant and her son moved into the apartment on or about January 10, 2003. The tenant’s three year-old grandson often visited the apartment, including at least one week-long visit. (Defendant’s Response to the Massachusetts Commission Against Discrimination dated February 8, 2004, attached as Exhibit 1 to Intervening Plaintiff’s Memorandum in Support of Summary Judgment.) The tenant’s boyfriend was also a frequent visitor to the apartment. In early March, 2003, the landlord instructed the tenant not to allow her grandson “extended visits” at the premises.

5. On or about March 15, 2003, the tenant hosted a party at her apartment with a number of guests. One resident complained

directly to the tenant about noise at the party. Although in Florida at the time, the landlord became aware of the party, and called the tenant to express his displeasure. Upon his return, the landlord served the tenant with a notice to vacate dated March 28, 2003. The notice cited several lease violations, including interference with the quiet enjoyment of other tenants through “multiple occasions of loud parties and other nocturnal activities,” and by allowing her guests to disturb other tenants. Additionally, the notice to vacate stated that the tenant:

 

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repeatedly allowed a child under the age of 5 “extended visits” in the apartment for which, at the time of signing the Lease Agreement, tenant was expressly informed that said apartment did not have a lead certificate, whereas, additionally, the activity of the child has repeatedly caused disturbance to adjacent tenants particularly during evenings.

 

6. The landlord and the tenant entered into mediation through the Berkshire County Regional Housing Authority, and agreed that the lease would be mutually rescinded and terminated. The tenant vacated her apartment on or about July 13, 2003.

 

7. The tenant filed a housing discrimination complaint against the defendants with the Massachusetts Commission Against Discrimination (“MCAD”) on December 5, 2003, alleging unlawful discrimination on the basis of race and familial status. On May 6, 2004, MCAD issued a finding of probable cause. The landlord elected a judicial determination on the tenant’s complaint, which led to the commencement of this action by the Commonwealth, and intervention by the tenant.

 

SUMMARY JUDGMENT STANDARD

 

8. Summary judgment is appropriate when no material facts are in dispute and the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56; Highlands Ins. Co. v. Aerovox, 424 Mass. 226, 232, 676 N.E.2d 801 (1997). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue and the fact that she is entitled to a judgment in her favor. Pederson v. Time Inc., 404 Mass. 14, 16-17, 532 N.E.2d 1211 (1989). The opposing party cannot rest on the pleadings or on mere assertions of disputed facts to defeat the summary judgment motion. “If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact …” Pederson, 404 Mass. at 17. When reviewing a summary judgment record, the court credits

 

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facts in the light most favorable to the nonmoving party. Bisson v. Eck, 430 Mass. 406, 407, 720 N.E.2d 784 (1990); Gray v. Giroux, 49

Mass.App.Ct. 436, 437, 730 N.E.2d 338 (2000).

 

DISCUSSION

 

9. The tenant moves for partial summary judgment establishing the defendants’ liability under the following six counts of her complaint: Counts VII and III, alleging discriminatory statements in violation of federal and state law; Counts VI and II, alleging discrimination based on familial status in violation of federal and state law; and Counts VIII and IX, alleging interference, coercion, and intimidation in violation of federal and state law. The court will address the claims in turn.

10. Discriminatory Statements (Counts VII and III): It is unlawful under federal law, 42 U.S.C. s. 3604(c), “[t]o make, print, or publish, or cause to be made, printed or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on …familial status… or an intention to make any such preference, limitation, or discrimination.” It is unlawful under state law, G.L. c. 151B, s. 4(7B), “for any person to make, print or publish . .. any notice [or] statement, with respect to the sale or rental of. . . covered housing accommodations that indicates any preference, limitation, or discrimination based on .. . children.” To prove that a landlord has indicated a discriminatory preference or limitation against a tenant based on familial status, the tenant must either show that the defendant’s statements suggest an apparent discriminatory preference, or that an “ordinary reasonable reader [or listener] infers the particular discriminatory preference.” Blomgren v. Ogle, 850 F. Supp. 1427, 1440 (E.D. Wash. 1993).

 

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11. Here, the undisputed facts establish that the landlord made three statements indicating a preference for tenants without young children, and limiting access to the premises by young children. First, the landlord informed the tenant at the time of signing the lease that children under five were not allowed in her apartment for “extended visits” as it did not have a lead certificate. Second, the landlord instructed the tenant during the course of her tenancy not to allow her grandson “extended visits.” Finally, the landlord issued a notice to vacate in which he alleged that the tenant violated her lease by allowing her grandson “extended visits” in the apartment notwithstanding “that said apartment did not have a lead certificate…”

12. An ordinary listener and reader could only interpret the defendants’ undisputed statements as expressing a preference against young children and their families. No alternative interpretation has been provided by the defendants, nor is one reasonably inferred by the court. The communications were intended to exclude families with young children from the tenant’s apartment, and are therefore discriminatory statements. Summary judgment shall enter in favor of the tenant, establishing the defendants’ liability under Counts VII and III.

 

13. Discrimination Based on Familial Status (Counts VI and II ): It is unlawful under the federal Fair Housing Act, (“the FHA”) for a landlord or owner “[t]o discriminate against any person in the terms, conditions, or privileges of a sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of …familial status…” 42 U.S.C. s. 3604(b).

14. The FHA extends standing under its provisions to “any person … who claims to have been injured by a discriminatory housing practice.” 42 U.S.C. s. 3602(i)(1). The

 

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FHA is construed broadly, and a tenant need only show that “as a result of the defendant’s [discriminatory] actions, she suffered `a distinct and palpable injury’.” Conservation Law Foundation v. Reilly, 950 F.2d 38, 40 (1st Cir. 1991) (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 372, 102 S. Ct. 1114, 1121 (1982)).

 

15. Discrimination against “any person” under this section includes discrimination against tenants themselves, as well as their visitors. See Woods-Drake v. Lundy, 667 F.2d 1198, 1201 (5th Cir. 1982) (it is a violation of section 3604(b) to prevent white tenants from receiving black guests). This principle applies to discrimination against tenants based on the familial status of their guests. See HUD on Behalf of Belfy v. Ocean Parks Condominium Assoc., Inc., PH, Inc.: Fair Housing-Fair Lending Rptr. p.25, 054 (HUD A.L.J. 1993)(grandparents have claims under section 3604(b) where a discriminatory policy deprived them of the right to have grandchildren permanently in their home, should that need arise in the future). 24 C.F.R 100.65, which “is entitled to deference because it is based on a reasonable interpretation of the statute and is not contrary to the clear intent of Congress,” Richards v. Bono, 2005 U.S. Dist. LEXIS 43585 (D. Fla. 2005), makes it unlawful to limit “the use of …facilities associated with a dwelling because of … familial status…of an owner, tenant or a person associated with him or her.” (Emphasis added)

 

16. In relevant part, it is unlawful under state law, G.L. c.151 B, s.4(11) (“the state statute”):

 

For the owner . . . to deny to or withhold from any person such accommodations because such person has a child or children who shall occupy the premises with such person or to discriminate against the person in the terms, conditions, or privileges of such accommodations or the acquisition therefore . . . because such person has a child or children who occupy or shall occupy the premises with such person[.]

 

17. A threshold question presented by the pending motion is whether a

 

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grandmother and visiting grandchild are within the class of individuals protected by the state statute. The court rules as a matter of law that they are. This conclusion is consistent with the principle of statutory construction which instructs that a statute “must be

interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection

with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished.” Lowery v. Klemm, 446 Mass 572, 577, 845 N.E.2d 1124,1128 (2006).[1] G.L. c. 151B, s.9 provides that “[a]ny person claiming to be aggrieved” by an

unlawful discriminatory practice may file an action under the statute. The statute must be interpreted liberally by the courts “for the accomplishment of [its] purposes . . .” G.L. c.

151B, s.9; College Town, Div of Interco, Inc. v. Massachusetts Comm ‘n Against Discrimination, 400 Mass. 156, 161, 508 N.E.2d 587, 590 (1987).

18. In addition, this ruling conforms interpretation of the state statute to the cognate federal law, which is the practice of Massachusetts courts, unless there is a reason to depart from the federal counterpart. New Bedford v. Massachusetts Comm ‘n Against Discrimination, 440 Mass. 450, 463, n. 26, 799 N.E.2d 578, 588 (2003). Here, there is no reason to depart from the courts’ interpretation of the FHA. To the contrary, our courts have long accepted the notion that “remedial statutes…are to be liberally construed to

 

 

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[1] The state statute does not define the term “occupy.” However, the State Sanitary Code, the purpose of which is “to protect the health, safety and well-being of the occupants of housing…” 105 C.M.R. 410.001, defines “occupant” as “every person living or sleeping in a dwelling.” 105 C.M.R. 410.020. Under the lead paint statute, G.L. c. 111, s. 198, “all local boards of health or other code enforcement agencies…shall enforce sections one hundred and ninety-four A, one hundred and ninety-six and section one hundred and ninety-seven in the same manner and with the same authority as they may enforce the sanitary code.”

 

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effectuate the apparent legislative purpose…[and that] [a]ny ambiguities are to be resolved toward the same end.” Serreze v. YWCA of Western Massachusetts, Inc., 30 Mass. App. Ct. 639, 643, n.9, 572 N.E.2d 581, 584 (1991)(citations omitted).

 

18. Construing the state statute more narrowly would also bring it into conflict with the Childhood Lead Poisoning Prevention Act, G.L. c. 111, s. 197 et seq. (“the lead paint statute”), which provides in pertinent part as follows:

 

 

It shall be an unlawful practice for purposes of chapter one hundred and fifty-one B for the owner, lessee, sublessee, real estate broker, assignee, or managing agent of any premises to refuse to sell, rent, lease or otherwise deny to or withhold from any person or to discriminate against any person in the terms, conditions or privileges of the sale, rental or lease of such premises, because such premises do or may contain paint, plaster or accessible structural materials containing dangerous levels of lead… (Emphasis added)

 

19. Finally, a narrower construction of the state statute would be incompatible with the way that families actually live. Many children divide their time between parents, or parents and grandparents, to identify two common family configurations. It would make no sense to require the courts to examine the details of family living arrangements, which are often fluid in any event, in order to determine whether a child “occupied” a particular premises and was thereby entitled to protection under the state statute. A prohibition on “extended visits” by definition prohibits the child from occupying the premises, whether on a temporary or permanent basis, and thereby suffices to bring those impacted by the policy under the protective umbrella of the state statute.

 

20. The Standard of Proof. The plaintiff alleges that the defendant discriminated against her based on her familial status in two ways: by having a policy which prohibited extended visits by her grandson and thereby restricting her use of the premises; and by attempting to evict her based on the alleged violation of that policy. The defendant

 

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responds, respectively, that the policy was intended to protect the tenant’s grandson from the risk of exposure to lead paint, and that he had other reasons for wanting to evict the tenant.

 

21. As the undisputed facts establish direct evidence of discrimination, the burden shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1823 (1973), does not apply. Rather, just as in employment discrimination cases, this case must be analyzed under the “mixed motive” formulation, as follows:

 

…[T]he appropriate question is whether the [landlord’s] proffered legitimate reason also motivated the [housing] decision and, if so, to what extent: – “[I]f a plaintiff in an unlawful discrimination case shows that an impermissible motive played a part in [a housing] decision, [a landlord] may not prevail by showing, as in McDonnell-Burdine, a legitimate reason for its decision; the [landlord] `instead must show that its legitimate reason, standing alone, would have induced it to make the same decision.'”

Wynn & Wynn, P. C. v. Massachusetts Commission Against Discrimination, 431 Mass. 655, 666, 729 N.E.2d 1068, 1078 (2000),

quoting Johansen v. NCR Comten, Inc., 30 Mass. App. Ct. 294, 301, 568 N.E.2d 611, 614 (1991), and Price Waterhouse v. Hopkins, 490 U.S. 228, 252, 109 S.Ct. 1775, 1991-92 (1989).

 

22. The Policy: That the landlord’s policy against extended visits by the tenant’s grandson constituted a limitation on her use of the premises is beyond debate. The landlord’s argument in support of the policy – that he was concerned about the well being of the child – reflects a misunderstanding of the lead paint statute. A landlord may not refuse to rent to families, or otherwise discriminate against prospective or existing tenants, based upon the presence of lead paint at the rental premises. Rather, the lead paint statute includes a provision which allows a landlord to delay the commencement of a tenancy for up to thirty days, in order to delead a rental unit.[2] “Refusing to rent to families with

 

 

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[2] Any owner undertaking to abate or contain dangerous levels of lead in any dwelling unit may, at the owner’s option, reasonably delay the commencement of the tenancy until a letter of compliance or interim control certificate has been issued; provided, that no duly executed lease exists between owner and tenant; and provided, further, that no such delay shall exceed thirty

 

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children in violation of paragraph eleven of section four of chapter one hundred and fifty-one B shall not constitute compliance with the lead law and regulations.” G.L. c.111, s. 199A(b).

23. There being no legitimate justification for the policy against young children at the premises, as a matter of law the landlord is unable to meet his legal burden under the “mixed motive” analysis, and the tenant is entitled to a ruling that the policy constituted unlawful discrimination. Summary judgment shall therefore enter in favor of the tenant, establishing that the landlord’s policy against extended visits by young children violated federal and state law.

24. The Eviction: Under the “mixed-motive” analysis, however, a genuine dispute does exist as to whether the landlord would have sought to evict the tenant irrespective of her violation of the discriminatory policy. Specifically, there is ample evidence before the court that the landlord’s decision to begin the eviction process was the result of disturbances caused by the tenant. “…[O]nce the plaintiff has met her initial burden of persuasion on the presence of an illegitimate motive, the decision whether the [landlord] has met its burden of proving that another legitimate, nondiscriminatory reason actually lead it to make the decision is normally for the jury or other finder of fact to decide.” Wynn & Wynn, P. C. v. Massachusetts Commission Against Discrimination, 431 Mass. at 670. The tenant’s motion for summary judgment establishing

the defendants’ liability for attempting to evict her, is denied.

25. Interference, Coercion, and Intimidation: It is unlawful under federal law, 42 U.S.C. 3617, “to coerce, intimidate, threaten, or interfere with any person in the exercise or

 

 

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days. G.L. c. 111, s.197(h).

 

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enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by” the Fair Housing Act. It is unlawful under state law, G.L. c. 151B, s. 4(4A), to “coerce, intimidate, threaten, or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter,” or to “coerce, intimidate, threaten or interfere with such other person for having aided or encouraged any other person in the exercise or enjoyment of any such right granted or protected by [the state statute].”

26. In order to establish a prima facie case of interference, coercion or intimidation in violation of federal and state law, the tenant must establish that “(1) she engaged in a protected activity; (2) the defendant subjected [her] to an adverse action; and (3) a causal link exists between the protected activity and the adverse action.” Sedivy v. City of Boise, 2006 U.S. Dist. LEXIS 44611, 14-15 (D. Idaho 2006), quoting Walker v. City of Lakewood, 272 F.3d 1114, 1128 (9th Cir. 2001).

27. The tenant alleges that the landlord threatened her with eviction for violating his policy against extended visits by her grandson, and that those threats “interfered (sic) and intimidated Ms. Flynn in the enjoyment of rights granted and protected by [the FHA and the state statute].” Amended Complaint, p.p. 52 and 56. Two fact issues exist which preclude summary judgment for the tenant on these claims. The first, as discussed above, is a genuine dispute as to whether the landlord’s threat to evict was motivated primarily by the protected activity (an illegitimate purpose), or by a legitimate consideration. The second fact question is whether the threat “interfered (sic) and intimidated” the tenant. The mere allegations to this effect in the Amended Complaint are insufficient, and the record before

 

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the court, including the tenant’s affidavit, does not establish the causal connection as a matter of law. The tenant’s motion for summary judgment as to Counts VIII and IX is therefore denied.

28. Conclusion: This ruling should not be read as requiring a landlord to tolerate disruptive children at a rental property, whether as guests or members of resident households. A landlord’s remedy, however, lies is prohibiting the offensive behavior, not in

excluding categorically the children or families themselves, who enjoy protected status under the law. The defendants herein prohibited extended visits by children qua children, and expressed this prohibition in policies and statements. In these ways, the defendants violated state and federal fair housing laws.

 

ORDER FOR ENTRY OF PARTIAL SUMMARY JUDGMENT

 

29. Based upon the foregoing, the following order shall enter:

 

A. The plaintiff-intervenor’s motion for partial summary judgment is allowed as to Counts III and VII;

 

B. The plaintiff-intervenor’s motion for partial summary judgment is allowed in part and denied in part as to Counts II and VI;

 

C. The plaintiff-intervenor’s motion for partial summary judgment is denied as to Counts VIII and IX;

 

D. The Clerk’s office is requested to schedule this matter for further proceedings consistent with this order.

 

 

So entered this 13th day of February, 2007.

 

 

 

cc: Peter Montori, Esq. Assistant Clerk Magistrate

 

 

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End Of Decision

 

HOUSING COURT

ZORANA GLUSCEVIC, Plaintiff v. ESTATE OF ALICE RUSSELL, CHARLES W. HUGHES, EXECUTOR, Defendant

 

WESTERN DIVISION

 

Docket # DOCKET NO. 06-CV-00275

Parties: ZORANA GLUSCEVIC, Plaintiff v. ESTATE OF ALICE RUSSELL, CHARLES W. HUGHES, EXECUTOR, Defendant

Judge: /s/Dina E. Fein

Associate Justice

Date: May 2007

FINDINGS, RULINGS, AND ORDER

 

1. Findings of Fact: The plaintiff Zorana Gluscevic (“Ms. Gluscevic”) is a doctoral candidate and part-time teaching assistant at the University of Massachusetts, Amherst campus, where she has been doing graduate studies since 1992. In December, 1996, Ms. Gluscevic entered into a home sharing arrangement with Alice Russell. The arrangement was under the auspices of a program administered by the University of Massachusetts Off-Campus Housing Services. Under the program, students are matched with homeowners, typically elderly individuals or young families in need of child care, who provide housing in exchange for services at the home, and companionship. At the time that Ms. Gluscevic entered into her home sharing arrangement with Ms. Russell, the program did not utilize written agreements. Under the terms of her agreement with Ms. Russell, Ms. Gluscevic was required to provide services and pay rent in the amount of $1.00 per month, plus ‘/2 of utility expenses.

2. Beginning in December, 1996 when Ms. Gluscevic moved into the property, she and Ms.

 

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Russell occupied the premises alone. Under the terms of their home sharing arrangement, Ms. Gluscevic had the exclusive use of one bedroom, and shared use of the remainder of the home, including the kitchen, bathroom, family room, dining room, laundry room, and garage. It was Ms. Russell’s custom to spend the months of January through April in Hawaii. During that period, Ms. Gluscevic took care of Ms. Russell’s house, dog, mail, and bills. When Ms. Russell was at home in Hadley, Ms. Gluscevic ran errands for her, did shopping, and shared in caring for the dog. They typically shared meals.

3. During the summer of 2004, while Ms. Russell was away from the home, a leak developed in the upstairs bathroom, and the ceiling of Ms. Gluscevic’s bedroom eventually collapsed, damaging various of Ms. Gluscevic’s belongings and disrupting her use of the bedroom. Ms. Gluscevic arranged for repairs approximately four weeks later, after contacting a family member of Ms. Russell, Mr. Charles Hughes. Mr. Hughes obtained Ms. Russell’s power of attorney in 2005.

4. In 2004, Ms. Russell became ill while in Hawaii. She was hospitalized, and admitted to a rehabilitation facility. When Ms. Russell eventually returned to the home, she was considerably debilitated, and Ms. Gluscevic’s services for her expanded to include helping with her personal care, driving to doctor’s appointments, preparing meals, and caring for the property. Ms. Russell left the home on July 25, 2005 for additional treatment, and did not return. She died on December 12, 2005. During the periods when Ms. Russell was away in Hawaii, or away from the home for treatment, Ms. Gluscevic was the sole occupant of the property.

5. Ms. Russell left a will, appointing Charles Hughes as the Executor of her estate, and bequeathing her real property to Charles Hughes’ mother, Mary V. Hughes. On the day of Ms.

 

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Russell’s death, Mr. Hughes and his sister Margaret Labrecque came to the property and informed Ms. Gluscevic that Ms. Russell had died. They also discussed in general terms that “they were not going to do anything about the house until spring.” No agreement was reached as to a specific date when Ms. Gluscevic would vacate.

They also indicated that they did not want Ms. Russell’s dog, Andy, and the dog remained with Ms. Gluscevic.

6. Beginning in January, 2006, Ms. Labrecque came to the house on weekends, every week or two, from her home in New Hampshire, for the purpose of organizing and disposing of Ms. Russell’s personal belongings. Ms. Labrecque also cleaned the house during the visits (as it was not being maintained to her standards by Ms. Gluscevic), in order to get it ready for a planned memorial service which was to take place there on April 29, 2006. Ms. Labrecque’s practice was to let Ms. Gluscevic know on the occasion of each visit when her next visit would be. She communicated this information verbally, or by leaving a note.

7. Upon arriving at the house, Ms. Labrecque announced herself by knocking. On occasion, Ms. Gluscevic was not at home, in which case Ms. Labrecque used a key to let herself in. Ms. Labrecque told Ms. Gluscevic in advance what area of the house she would be cleaning, and instructed her to remove her belongings from that area. In addition, at some point Ms. Gluscevic had taken over two of the bedrooms upstairs for her own use. Ms. Labrecque asked her which of the two she wanted to use, and transferred Ms. Russell’s belongings to that room. On at least one occasion, Ms. Labrecque removed items (shoes) that belonged to Ms. Gluscevic from the house, and returned them upon request. On another occasion, Ms. Labrecque moved Ms. Gluscevic’s bicycles from the shed to the garage,

8. On or around March 16, 2006, the defendant caused to be served and the plaintiff

 

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received a rental period notice to quit effective April 30, 2006. Beginning in early April 2006, the presence at the house by the defendant or others acting on behalf of the estate, intensified. Mr. Hughes was there daily from April 15 – 18, 2006. As the date for Ms. Russell’s memorial service at the house approached, Ms. Labrecque asked Ms. Gluscevic to clean the bathrooms and, when she failed to do so, Ms. Labrecque removed all of her belongings from the bathrooms, placed them in boxes in Ms. Gluscevic’s room, and cleaned them herself. She also cleaned the kitchen, including disposing of some of Ms. Gluscevic’s foodstuffs in the cupboards, which were moth infested. Ms. Labrecque also informed Ms. Gluscevic that the phone and cable service would be terminated as of May 1, in anticipation of the plaintiff’s departure as requested by April 30. At all times, Ms. Labrecque was acting with the permission and at the request of Mr. Hughes.

9. By letters dated February 8, 2006 and April 27, 2006, the plaintiff complained to counsel for the defendant about the conduct of those acting on behalf of the estate. She asserted her right to quiet enjoyment of the premises, and offered to pay rent and a portion of utilities. In the April 27 letter, Ms. Gluscevic also stated that she had never agreed to vacate the premises by the termination date indicated in the notice to quit. Counsel for the defendant responded to these letters in part by stating that the defendant and his family “have the same right to be on the premises

as Alice herself would have had.” The defendant maintained this position throughout his dealings with the plaintiff

10. Ms. Labrecque and her husband arrived at the house on May 2, 2006, assuming that Ms. Gluscevic would have vacated pursuant to the notice to quit, and intending to clean. Ms. Gluscevic had not vacated. A heated discussion took place between the Labrecques and Ms.

 

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Gluscevic, who called the police. The police came to the house, but declined to intervene. On that occasion Ms. Gluscevic said words to the effect that she would not vacate “until she had to.” Ms. Gluscevic gathered some of her belongings and went to stay with friends.

11. On May 15, 2006, Ms. Labrecque arrived at the house and observed that the conditions there were the same as she had left them two week earlier. There was no accumulated trash, no sign that cooking had taken place, and no computer, although many of Ms. Gluscevic’s belongings remained at the premises. Ms. Labrecque telephoned Mr. Hughes, who instructed her to change the locks, which she did. Ms. Labrecque then took the belongings that were in Ms. Gluscevic’s room, packed them in boxes, and placed the boxes on the porch.

12. On Friday, May 19, 2006, the court allowed Ms. Gluscevic’s application for a temporary restraining order restoring possession of the premises to her, and prohibiting the defendant from entering the premises except upon 24 hours notice, or such other notice as was practicable in circumstances requiring less than 24 hours notice. Mr. Hughes made a key for the new locks available to Ms. Gluscevic as of Monday, May 22, 2006. Thereafter, one of the rooms at the house remained locked and unavailable for Ms. Gluscevic’s use until she vacated on or around November 3, 2006.

13. During the months of April and May, 2006, Ms. Gluscevic often stayed with friends, in an effort to avoid Mr. Hughes and Ms. Labrecque. Ms. Gluscevic experienced her interactions with them as very stressful and humiliating; she was not sleeping or eating regularly, and started smoking heavily. Ms. Gluscevic was also having trouble concentrating, which adversely affected her work.

14. In early May, 2006, Ms. Gluscevic began seeing a therapist. The dominant theme of her

 

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therapy was the stress and anxiety related to her living situation. Ms. Gluscevic was diagnosed with adjustment disorder with mixed anxiety and depression. She treated into the summer, 2006, took a break, returned in September, 2006, took another break, and returned in January, 2007, at which time she showed improvement.

15. During her life, Ms. Russell owned two condominiums in Hawaii. Both were sold before her death.

16. Rulings of Law: Ms. Gluscevic claims breach of the warranty of habitability, interference with quiet enjoyment,

illegal eviction, violation of civil rights, intentional infliction of emotional distress, and violation of chapter 93A. The defendant counterclaims for use and occupancy of the premises, and return of the dog. Ms. Gluscevic argues that the defendant’s claim for use and occupancy has been waived. The defendant argues that Ms. Gluscevic was not a tenant, and that her claim under chapter 93A is procedurally defective. The court will address these issues in turn.

17. Tenancy: The law of this case, as expressed in the court’s partial summary judgment ruling and the parties’ pretrial memorandum, is that the home-sharing arrangement between Ms. Russell and Ms. Gluscevic constituted an oral tenancy at will.

18. In addition, the evidence, including the testimony of Joanne Levinson who served as the Director of Off-Campus Housing Services at the University of Massachusetts, established that the arrangement was one in which the exclusive right of Ms. Gluscevic to occupy a portion of the premises was exchanged for something of value, namely services. This exchange sufficed to create a tenancy at will. Ms. Russell’s death terminated the tenancy at will by operation of law, Flood v. Flood, 83 Mass. 217, 218 (Mass. 1861), after which Ms. Gluscevic was a tenant at

 

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sufferance.

19. Breach of the Warranty of Habitability: Ms. Gluscevic’s claim for breach of the warranty of habitability arises out of a condition which developed long after the inception of the tenancy, and while Ms. Russell was away from the premises. There is no evidence that Ms. Russell, then the landlord, was notified of this condition. Ms. Gluscevic testified credibly to having notified Mr. Hughes of the ceiling leak, but this occurred before he obtained Ms. Russell’s power of attorney, and there is no evidence establishing either that he was otherwise acting as Ms. Russell’s agent, nor that Ms. Russell herself was informed of the problem. Ms. Gluscevic has therefore not established an essential element of her claim for breach of the warranty, entitling the defendant to a ruling in its favor.

20. Interference With Quiet Enjoyment and Illegal Eviction: In order to establish her claim for interference with quiet enjoyment, Ms. Gluscevic must show that the defendant and/or his agents engaged in conduct which was “at least negligent,” and which substantially impaired the nature and character of her tenancy. The determination of whether the defendant was “at least negligent” turns on an evaluation of whether the estate’s agents acted reasonably under the circumstances. I conclude that they did not.

21. While the defendant did succeed Ms. Russell as the landlord, the defendant’s agents did not enjoy precisely the same rights with respect to the premises as those of Ms. Russell. Under the terms of the home-sharing arrangement, Ms. Russell was both the landlord and the co-occupant with Ms. Gluscevic of the premises. The latter role was unique to Ms. Russell, for whom another individual could not be substituted under the arrangement any more than Ms. Gluscevic was free to substitute another co-occupant for

herself. As was explained by Ms.

 

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Levinson, compatibility was a key element of the home-sharing arrangements administered by her office, and an essential term, therefore, of the tenancy.

22. This is not to say that the defendant had no rights with respect to the premises, but rather that those rights were not co-extensive with those of Ms. Russell. The defendant had the rights of any landlord, including reasonable access to the premises for legitimate purposes. Mr. Hughes, as the Executor, and Ms. Labrecque, as the beneficiary’s agent, certainly had the right to access the premises reasonably in order to inventory and maintain the estate’s assets therein. They were required to do so, however, in a manner consistent with the right of Ms. Gluscevic to quiet enjoyment of the premises. The property constituted an asset of the estate. Only Ms. Russell and Ms. Gluscevic, however, had the right under the home-sharing arrangement to use the premises as a home.

23. In their understandable zeal to manage the estate and prepare the house for a memorial service, those acting on behalf of the defendant crossed the line and acted unreasonably under the circumstances. They moved and disposed of Ms. Gluscevic’s belongings without her permission, entered her bedroom without permission, terminated phone and cable service (which had been provided by Ms. Russell), briefly attempted to move another individual into the premises, changed the locks, and precluded access entirely to one room. Their intentions, while perhaps understandable and in honor of Ms. Russell, disregarded Ms. Gluscevic’s right to occupy the premises, in their entirety, until and unless ordered to vacate by a court. Even assuming, arguendo, that the defendant had the right to make use of the premises apart from Ms. Gluscevic’s room, those acting on behalf of the estate exercised that right in a manner which was not compatible with Ms. Gluscevic’s right to occupy the premises as well.

 

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24. Nor was the defendant’s decision to change the locks justified by Ms. Gluscevic’s “abandonment” of the premises. Many of Ms. Gluscevic’s belongings were at the premises, and she had put the estate on notice, through counsel, that she did not agree to vacate by the end of April. Even assuming that Ms. Gluscevic had not occupied the premises during the period May 2 to May 15, she had clearly not abandoned them, and depriving her of access to the premises by changing the locks constituted interference with quiet enjoyment and unlawful entry in violation of G.L. c. 186, s.14 and G.L. c. 186, s.15F.

25. The defendant’s conduct substantially impaired the character and value of the premises for Ms. Gluscevic. Ms. Gluscevic spent considerable time away from the premises in order to avoid Mr. Hughes and Ms. Labrecque. She was humiliated, distracted, and anxious about her housing status to the point that she sought mental health treatment.

 

26. Under G.L. c. 186, s.14, the defendant’s interference with Ms. Gluscevic’s right to quiet enjoyment entitles her to the greater of three months’ rent, or actual damages. Actual damages include emotional distress damages. I find and rule that Ms. Gluscevic’s emotional distress damages exceed three months’ rent, and award her damages under G.L. c. 186, s.14 in the amount of $15,000 for the defendant’s conduct, excluding changing the locks. I award damages in the amount of $1,500 for the defendant’s conduct in changing the locks, which shall be trebled to $4,500 under G.L. c. 186, s. 15F. The total damages awarded to Ms. Gluscevic are therefore $19,500[1] Ms. Gluscevic is also statutorily entitled to an award of costs and attorney’s fees.

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[1]Ms. Gluscevic’s actual damages exceed statutory damages irrespective of whether the statutory damages are calculated as a function of the monthly rent before Ms. Russell died ($1), or fair use and occupancy after her death ($1,200).

 

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27. Chapter 93A: The defendant is not subject to a claim under Chapter 93A. There is no evidence that the estate owned real property beyond the subject premises, Ms. Russell having sold two condominiums in Hawaii before she died. In addition, the estate is indisputably not in the business or trade of rental housing. Therefore, even given that the claim was originally brought as a counterclaim in the summary process case without need to serve a demand letter, and properly reserved by the parties’ agreement upon resolution of the summary process case, the defendant is not liable under Chapter 93A.

28. Violation of Civil Rights: The conduct of those acting on behalf of the estate did not rise to the level of “threats, intimidation or coercion” required under the Massachusetts Civil Rights Act. The defendant is therefore entitled to a ruling in its favor on this count.

29. Intentional Infliction of Emotional Distress: Those who acted on behalf of the estate “jumped the gun” and acted at times in a manner which was misguided. Their conduct was not outrageous, however, nor did it exceed the bounds of human decency. The defendant is not liable for intentional infliction of emotional distress.

30. Use and Occupancy: The defendant’s claim for use and occupancy was raised in the answer and counterclaim, and has not been waived as a matter of law. As indicated above, the tenancy at will between Ms. Russell and Ms. Gluscevic terminated at the time of Ms. Russell’s death. As a tenant at sufferance thereafter, Ms. Gluscevic is liable for the reasonable use and occupancy of the premises. G.L. c. 186, s.3. During the period that Ms. Gluscevic remained at the premises as a tenant at sufferance, she had the exclusive right to use and occupy the entire premises. Although that right was interfered with by the defendant in the ways enumerated above, the interference entitles Ms. Gluscevic to damages; it does not reduce the baseline

 

 

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reasonable use and occupancy value of the premises. As testified credibly by Ms. Levinson, the reasonable use and occupancy value of a single family home such as the subject premises is between $1,200 and $1,500 per month. I determine that reasonable use and occupancy of the premises was $1,200 per month, and award the defendant a total of $12,000, for the period January through October, 2006, to be offset against Ms. Gluscevic’s damages.

31. The Dog: The defendant left the dog with Ms. Gluscevic, and made no attempt to retrieve him between the time of Ms. Russell’s death and the trial. The defendant effectively abandoned the dog to Ms. Gluscevic, who is therefore not liable for his conversion nor required to transfer the dog to the estate.

32. Order: Based upon the foregoing, an order by not a judgment shall enter, awarding the plaintiff Zorana Gluscevic damages in the amount of $19,500 – $12,000 = $7,500, plus costs and attorney’s fees. Counsel for the plaintiff shall have 14 days from the entry date of this order to file and serve his petition for costs and attorney’s fees. Opposition, if any, shall be filed and served within 14 days thereafter, after which the court will rule on the papers and final judgment will enter.

 

 

So entered this day of May, 2007.

 

 

 

cc: Kelly Jones, Law Clerk

 

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End Of Decision

 

HOUSING COURT

THERESA BECHARD, Plaintiff v. DEBORAH LYON, Defendant

 

 

WESTERN DIVISION

 

Docket # DOCKET NO. 07-SP-774

Parties: THERESA BECHARD, Plaintiff v. DEBORAH LYON, Defendant

Judge: /s/Dina E. Fein

Associate Justice

Date: May 2007

RULING ON DEFENDANT’S PETITION FOR ATTORNEY’S FEES AND ORDER FOR ENTRY OF JUDGMENT

 

1. The above-captioned matter is before the court on the defendant’s (tenant’s) petition for statutory attorney’s fees. The plaintiff (landlord) opposes the petition, arguing that the requested fees are excessive, were not claimed in the answer and counterclaim, and should not be awarded to counsel who assumed representation pursuant to a pro bono “Lawyer for a Day” program. Upon consideration of the parties’ submissions, and for the reasons set forth herein, the petition is allowed.

2. The fees claimed are not excessive. The tenant

substantially prevailed at trial, retaining possession and recovering damages. While the tenant originally plead (pro se) a number of claims as to which she did not recover, most of those claims were waived or withdrawn at trial, and did not involve the expenditure of significant time by counsel for the tenant. Counsel for the tenant has appropriately deducted those hours which were expended pursuing the security deposit claim, as to which the tenant did not prevail. The number of hours and the hourly rate claimed by counsel for the tenant are both well within the range of reasonable, given the nature and complexity of the case, and the result obtained.

 

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3. The tenant’s answer and counterclaim, while not expressly stating that she was claiming attorney’s fees, plead those statutes which include provisions for attorney’s fees. The tenant’s pleading sufficed to put the landlord on notice of her potential claim for attorney’s fees. Practitioners in this area of the law, such as counsel in this case, are well aware of these statutory fee shifting provisions.

4. The fact the Attorney Garrow was retained through a pro bono program does not preclude the tenant’s claim for attorney’s fees. The right to attorney’s fee belongs to the tenant, by statute. In addition, legal services programs and others providing legal services to low income individuals at no cost to the client, are not barred from recovering statutory attorneys’ fees. Darmetko v. Boston Housing Authority, 378 Mass. 758, 393 N.E.2d 395 (1979). Finally, comment 5 to Rule 6.1 of the Massachusetts Rule of Professional Conduct provides in pertinent part as follows with respect to pro bono publico service: “The award of statutory attorneys’ fees in a case accepted as a pro bono case…would not disqualify such services from inclusion under this section.”

6. Order for Entry of Judgment: Based upon the foregoing, judgment shall enter in favor of the defendant tenant for possession plus damages in the amount of $694.84, and attorney’s fees in the amount of $2,584.

 

 

So entered this day of May, 2007.

 

 

 

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End Of Decision

 

HOUSING COURT

FRANK AND JUANA HOWARD, Plaintiffs v. ALICIA BAUSCH, Defendant

 

WESTERN DIVISION

 

Docket # DOCKET NO. 07-SP-01267

Parties: FRANK AND JUANA HOWARD, Plaintiffs v. ALICIA BAUSCH, Defendant

Judge: /s/Dina E. Fein

Associate Justice

Date: May 2007

FINDINGS, RULINGS, AND ORDER

 

The above-captioned summary process (eviction) case came before the court for trial on April 26, 2007, after which the following findings of fact and rulings of law shall enter:

1. The plaintiff (landlord) owns the two-family property located at 54 Price Street, Springfield. Effective September 1, 2001, the landlord rented Apartment A (the premises) to the defendant (tenant), pursuant to oral month-to-month tenancy agreement. The agreed upon rent for the premises is $650 per month. Rent totaling $3,250 is unpaid through April, 2007. On or around March 15, 2007 the landlord served and the tenant received a legally sufficient 14 day notice terminating the tenancy for non-payment of rent. It was not the first notice to quit for nonpayment of rent received by the tenant in twelve months.

2. The tenant raises many claims in defense and counterclaims to the landlord’s case. The evidence at trial failed to make out most of the tenant’s defenses and counterclaims. The one exception is the tenant’s defense and counterclaim alleging breach of the implied warranty of

 

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habitability, arising out of substandard conditions at the premises. In order to establish her claim for breach of warranty, the tenant must show that there were substandard conditions at the premises about which the landlord had notice before such time as the tenant was in arrears on her rent. I find that the tenant has met her burden of proving one such condition, namely a problem with the bathroom ceiling which developed approximately two years ago, more likely than not related to moisture and inadequate venting. Although the landlord treated the problem with stain killer when first notified, he knew or should have known that this did not remedy the problem.

3. It is usually impossible to fix damages for breach of the implied warranty with mathematical certainty, and the law does not require absolute certainty, but rather permits the courts to use approximate dollar figures so long as those figures are reasonably grounded in the evidence admitted at trial. Young v. Patukonis, 24 Mass.App.Ct. 907, 506 N.E.2d 1164 (1987). The measure of damages for breach of the implied warranty of habitability is the difference between the value of the premises as warranted, and the value in their actual condition. Haddad v. Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991). I find that the fair rental value of the premise has been reduced by 5%, on average, as a result of the bathroom ceiling condition. The tenant’s damages for the landlord breach of the implied warranty of habitability are $650 (contract rent) x 5% = $32.50 x 24 months = $780.

4. ORDER: As provided for under G.L. c. 239, s.8A, the tenant shall have 10 days from the entry date of this order to deposit with the Clerk’s office the sum of $3,250 (landlord’s rent claim

through April) – $780 (tenant’s damages) = $2,470. If she does so, this sum shall forthwith upon request be released to the landlord, and judgment for possession shall enter in favor of the tenant. If the tenant fails to deposit the required amount, judgment for possession and $2,470 shall enter

 

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in favor of the landlord at the expiration of the 10 day period.

5. The rent shall continue to be reduced by 5%, to $617.50 per month, until such time as the bathroom ceiling is repaired. In addition, the landlord shall forthwith insure that there are working smoke detectors at the premises, and shall forthwith replace the kitchen light fixture. The tenant must provide access to the landlord in order to make these repairs. Any dispute concerning repairs shall be brought to the attention of the court’s Housing Specialist Department, the determinations of which shall be binding on the parties unless superceded upon motion by order of a judge.

 

 

So entered this day of May, 2007.

 

 

 

 

cc: Kevin R. Byrne, Sr. Chief Housing Specialist

 

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End Of Decision

 

HOUSING COURT

RICHARD J. PELLETIER AND DARLENE T. PELLETIER f/k/a DARLENE T. CORNELIUS vs. WINDPATH CONDOMINIUM ASSOCIATION AND APPLETON CORPORATION

 

 

Docket # #06-CV-50

Parties: RICHARD J. PELLETIER AND DARLENE T. PELLETIER f/k/a DARLENE T. CORNELIUS vs. WINDPATH CONDOMINIUM ASSOCIATION AND APPLETON CORPORATION

Judge: /s/Fein, J

Date: January 18, 2007

ORDER TO COMPEL PLAINTIFF’S SIGNED AUTHORIZATION FOR INSPECTION

AND COPYING OF MEDICAL, CHIROPRACTIC, PSYCHOLOGICAL,

PSYCHIATRIC AND/OR COUNSELING RECORDS

 

Upon defendant, Windpath Condominium Association’s motion to compel the plaintiff, Darlene Pelletier f/k/a Darlene Cornelius to sign an authorization for the release of her medical, chiropractic, psychological, psychiatric and/or counseling records of Darlene Pelletier f/k/a Darlene Cornelius, now or formerly of 8 Shady Brook Lane, West Springfield, Massachusetts 01089; Date of Birth: November 23, 1946, it is hereby ORDERED that, Darlene Pelletier f/k/a Darlene Cornelius sign an authorization for the release of her records as aforementioned, from Dr. James Hession, Chestnut Medical Associates, 300 Birnie Avenue, Suite 102, Springfield, Massachusetts. Upon payment of a reasonable fee, Dr. Hession shall furnish the defendant or it’s attorney a complete copy of the medical, chiropractic, psychological, psychiatric and/or counseling records of the plaintiff, Darlene Pelletier Okla Darlene Cornelius.

 

By the Court

 

 

 

 

 

End Of Decision

 

HOUSING COURT

BERKSHIRE, FRI, LLC. v. DAVID CAROLAN

 

WESTERN DIVISION

 

Docket # DOCKET NO. 07-SP-01222

Parties: BERKSHIRE, FRI, LLC. v. DAVID CAROLAN

Judge: /s/Dina E. Fein, Associate Justice

Date: May 24, 2007

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned summary process case came before the court for trial on May 23, 2007, after which the following findings of fact and rulings of law shall enter, as provided for under Mass. R. Civ. P. 52(a):

 

1. Findings of Fact: On March 6, 2006, the plaintiff (landlord) purchased a piece of property on which are located 4 single family homes and one duplex. The landlord, a developer, plans to raze the buildings on the property, and construct single family homes on the existing foundations, which he will then sell as condominiums. He plans to begin with the two buildings closest to the road, those being the duplex (unit 65B) and one of the single family homes (unit 69A), for display and marketing purposes. The defendant (tenant) occupies one unit of the duplex (the premises). The other unit in the duplex is vacant, as is unit 69A.

 

2. The tenant has occupied the premises since 2001, under a Section 8 lease. The contract rent for the premises is $675 per month. On or around February 20, 2007, the landlord served and the tenant received a rental period notice terminating the tenancy effective March 31, 2007. The tenant is current with his rent.

 

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3. Rulings of Law: In defense and counterclaim to the landlord’s case, the tenant raises substandard conditions and discrimination based on receipt of a rental subsidy. These will be discussed below. Two additional claims raised by the tenant at trial, namely illegal reprisal and violation of the condominium conversion law, will not be considered as not plead. In addition, the tenant has not established that the condominium conversion law applies to a development such as that contemplated by the landlord, in which rental units are not being converted into condominiums but rather razed in order to erect condominiums. Nor does a violation of the condominium conversion law, if applicable, render the notice to quit defective, as argued by the tenant.

 

4. Conditions: When the landlord purchased the premises, there was a condition there which violated the minimum standards of fitness for human habitation, as set forth in Article II of the State Sanitary Code. Specifically, there was not a second means of

egress from the property, in violation of 105 C.M.R. 410.450 which provides in pertinent part as follows:

 

Every dwelling unit, and rooming unit shall have as many means of exit as will allow for the safe passage of all people in accordance with 780 CMR 104.0, 105.1, and 805.0 of the Massachusetts State Building Code.

 

 

5. On or around June 13, 2006, the landlord was cited by the Town of Egremont Building Inspector for the above-referenced violation. The condition was not corrected until April, 2007. Although the landlord testified to occasions on which the tenant cancelled appointments to make the repair, no evidence was offered of written requests for access, nor do I find based upon the credible testimony that the tenant obstructed repairs.

 

6. The absence of a second means of egress reduced the fair rental value of the premises.

 

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Although no emergency occurred, the requirement of a second means of egress is necessary to insure the safety of the premises, and the absence of a second egress makes them less safe, and therefore less valuable. I am therefore awarding the tenant a 5% rent abatement for the 14 month period of March, 2006 through April, 2007. The tenant’s damages are $675 (contract rent) x 5% = $33.75 x 14 months = $472.50.

 

7. Discrimination: The tenant receives a rental subsidy, and established that he was treated differently than other occupants at the property, in that he was served with a notice to quit and summary process complaint. The landlord has established a non-discriminatory, non-pretextual reason for seeking to evict the tenant, however. Specifically, the landlord wishes to raze the tenant’s building and a neighboring building first (as to which the tenant is the only remaining occupant), in order to construct units there which will be useful for display and marketing purposes, being near the road. The landlord is therefore entitled to a ruling in his favor on the tenant’s claim of discrimination based on rental subsidy.

 

8. ORDER FOR ENTRY OF JUDGMENT: G.L. c. 239, s.8A provides in pertinent part that “[t]here shall be no recovery of possession under this chapter if the amount found by the court to be due the landlord equals or is less than the amount found to be due the tenant or occupant by reason of any counterclaim or defense under this section.” Judgment for possession and $472.50 shall therefore enter in favor of the defendant tenant.

 

So entered this 24th day of May, 2007.

 

 

 

 

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End Of Decision

 

HOUSING COURT

M & T BANK v. LISA GRANT / LISA GRANT v. M & T MORTGAGE CORP.

 

WESTERN DIVISION

 

Docket # 05-SP-03932 and 05-CV-00314

Parties: M & T BANK v. LISA GRANT / LISA GRANT v. M & T MORTGAGE CORP.

Judge: /s/Dina E. Fein

Associate Justice

Date: March 27, 2007

RULING ON PETITION FOR ATTORNEY’S FEES AND ORDER FOR ENTRY OF JUDGMENT

 

This matter is before the court on the petition of Lisa Grant for an award of attorney’s fees and costs, and opposition thereto. Upon consideration of the parties’ submissions, and the record as a whole, the court finds, rules, and orders as follows:

1. Background: These consolidated cases have a long history, summarized herein as relevant to the pending petition. M & T Mortgage Corporation (“M & T”) purchased the subject two family property at foreclosure sale on November 12, 2004. At all times relevant hereto, Ms.

 

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Grant (“tenant”) and her family occupied one unit of the property, initially as a tenant of the former owner, Dorothy Sanderson. On December 7, 2004, M & T sent a “notice to quit and vacate,” addressed to Ms. Sanderson “and all other occupants.” On January 27, 2005, M & T served a summary process complaint on “Dorothy Sanderson, Lisa Grant, and any and all occupants.” That complaint was entered in this court as docket 05-SP-01067, and Ms. Grant filed an answer and counterclaim thereto. The summary process complaint was ultimately dismissed upon the tenant’s motion, for M & T’s failure to satisfy the procedural prerequisite of serving Ms. Grant with a notice to quit. Her counterclaims were then transferred to civil docket number 05-CV-00314, one of the cases consolidated herein, and pretrial litigation followed, including discovery, discovery disputes, and various motions.

2. Upon dismissal of the original summary process complaint against Ms. Grant, and while the civil litigation described above was ongoing, she was served with a notice to quit (on behalf of M & T

Mortgage Corporation), after which a second summary process complaint was served and entered, identifying M& T Bank as the owner plaintiff. This summary process case was

assigned docket number 05-SP-03932, the other of the cases consolidated herein. Litigation ensued in the second summary process case, including a motion for summary judgment by the tenant, based in part on the argument that a notice to quit served on behalf of M & T Mortgage Corporation did not suffice to terminate a tenancy with M & T Bank. The court denied the motion, reasoning that a fact question existed as to the relationship between M & T Mortgage Corporation and M & T Bank. In denying the motion for summary judgment, however, the court indicated as follows: “To be perfectly clear, the question of whether the tenancy has been properly terminated remains one for trial, as to which the plaintiff bears the burden of proof. This ruling should not be read as relieving the plaintiff of that burden, nor relaxing the standard

 

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of proof which will be required at trial.” Order on Defendant’s Motions for Summary Judgment, To Strike, and To Consolidate, 05-SP-03932, 12/2/05 (Fein, J.).

3. Against this procedural background, the consolidated cases came to trial before the undersigned. M & T Bank and M & T Mortgage Corporation appeared at trial through counsel, without witnesses, and no competent evidence was offered to establish the prima facie elements of the summary process case: M & T Bank’s relationship to the property, and service of a proper notice to quit. Upon Ms. Grant’s motion at the close of M & T Bank’s case, the summary process claims were dismissed, and trial proceeded on the tenant’s claims and M & T Mortgage Corporation’s claim for use and occupancy in docket number 05-CV-00314. Findings of fact and rulings of law entered, pursuant to which Ms. Grant was awarded damages in the amount of $6,632, and M & T Mortgage Corporation was awarded $5,200 for use and occupancy. The pending petition for attorney’s fees, and opposition thereto, followed.

4. Standard: The determination of reasonable attorney’s fees is within the discretion of the judge. Fontaine v. Ebtec Corp., 415 Mass. 309, 324, 613 N.E.2d 881, 890 (1993). Among the factors to consider are: “the nature of the case and the issues presented, the time and labor required, the amount of damages involved, the result obtained, the experience, reputation and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases.” Id., 613 N.E. 2d at 891, quoting Linthicum v. Archambault, 379 Mass. 381, 388-389, 398 N.E.2d 482, 488 (1979).

5. Analysis: Counsel for Ms. Grant, Joel Feldman, has petitioned for an award of fees in the amount of $21,240, representing 94.4 hours at the rate of $225 per hour. M & T focuses on the tenant’s net damages recovery of $1,432, presumably to make the point that the fees requested herein are disproportionate to that award. The dollar amount of the tenant’s recovery, however,

 

 

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does not take into consideration that she also retained possession of the subject property. In addition, the amount of her recovery is only one of several factors to be considered by the court.

6. Certain other of the arguments made in M & T’s opposition are perplexing, such as the suggestion that “Attorney Feldman’s office bills itself at a legal service office.” Factually, and to the contrary, Attorney Feldman’s affidavit makes clear that he is a shareholder in a private law firm. Legally, the question of whether a prevailing party is represented by a private attorney or a legal services program, is irrelevant. Darmetko v. Boston Housing Authority, 378 Mass. 758, 763, 393 N.E.2d 395, 399 (1979).

7. Finally, M & T argues that depositions were taken over its objection (presumably adding to the time and expense of the case), and that the fees proposed are inflated and not merited by the nature of the case. Regrettably, however, a review of the record will show that much of the time invested by Ms. Grant’s attorney was in response to procedural missteps by M & T. The record also reflects that the court made every effort to articulate the legal standards which applied to the underlying dispute, including the applicability of fee shifting statutes, and to offer the court’s mediation services to assist in a resolution short of trial. The plaintiff having exercised its right to go forward with litigation and trial, it may not now complain that counsel for the tenant prepared her case in response.

8. Attorney Feldman has been practicing in Massachusetts for 18 years, initially with legal services programs, and for the past eight years in private practice. Attorney Feldman has extensive litigation experience in the areas of housing and consumer law, including multiple class action cases, and appellate experience. The hourly rate requested by Attorney Feldman, $225, is supported by affidavits of experienced counsel, is consistent with the prevailing rate charged by attorneys with comparable experience, and is reasonable.

 

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9. With only the exceptions identified below, the number of hours claimed is also reasonable. Attorney Feldman’s affidavit documents a lean and efficient approach to litigating these cases; on the whole it is clear to the court that Attorney Feldman spent only such time as was necessary to prepare the case adequately, and no more.

10. There are, however, two categories of time which the court concludes are not reasonable. The first is for that work performed by Attorney Feldman between December 15, 2004 and January 21, 2005, before service of the first summary process case on January 27, 2005. While obviously related to his representation of Ms. Grant, this time (3.7 hours) was not undertaken in cases as to which she was the prevailing party, and will therefore not be awarded.

11. The second category of time is for activities which appear entirely ministerial. It is not reasonable to claim $225 per hour for work which is well within the capability of a (presumably

lower-paid) clerical person to perform. For this reason, the court will disallow an award for the following activities:

 

3/15/05 Notice of Appearance 0.1

3/15/05 Transfer notice 0.2

3/15/05 Cover letter with eviction documents 0.1

3/24/05 Request for trial assignment, etc. 0.2

3/30/05 Letter to Karen Huntoon 0.2

7/26/05 Courthouse to receive decision on motions 0.4

10/25/05 Deposition notice and subpeona 0.2

Total 1.4

 

12. Based upon the foregoing, the court will disallow 3.7 + 1.4 = 5.1 hours, and award attorney’s fees in the amount of $20,092.50, representing 89.3 hours at the rate of $225 per hour. The court also awards costs for depositions and subpoenas, in the amount of $914.81.

13. Order for Entry of Judgment:

 

A. In docket number 05-SP-03932, judgment for possession shall enter in

 

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favor of Lisa Grant.

 

B. In docket number 05-CV-00314, judgment shall enter in favor of M & T Mortgage Corporation for use and occupancy in the amount of $5,200.

 

C. In docket number 05-CV-00314, judgment shall enter in favor of Lisa Grant for damages in the amount of $6,632, attorney’s fees in the amount of $20,092.50, and costs in the amount of $914.81.

 

So entered this 27 day of March, 2006.

 

 

 

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End Of Decision

 

HOUSING COURT

WILLIAM and KATHERINE HOTALING v. DEAN TODD

 

WESTERN DIVISION

 

Docket # 07-SP-00895

Parties: WILLIAM and KATHERINE HOTALING v. DEAN TODD

Judge: /s/Dina E. Fein

Associate Justice

Date: June, 2007

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

This matter came before the court for trial, after which counsel for the parties requested and were granted additional time within which to file memoranda of law on legal issues which arose during trial. Upon consideration of the evidence and the parties’ written submissions, the following findings of fact and rulings of law are to enter, as provided for under Mass. R. Civ. P. 52(a):

1. Findings of Fact: The plaintiffs (landlords) own the 7 unit residential building located at 26 Hamlin Street, Pittsfield (the property). The defendant (tenant) rents Unit 3 at the property, under a written lease. The lease was last renewed on October 1, 2006, and ends by its terms on September 30, 2007. Under the lease, rent in the amount of $400 is due and payable on the P of each month. No rent is unpaid.

2. The lease provides in pertinent part as follows:

 

5. DEFAULT If the TENANT fails to pay rent or breaches any other

 

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provisions of this agreement, the LANDLORDS may either sue TENANT for rent or use any legal remedies to evict TENANT from the premises. Further, TENANTS may be evicted

for failing to observe the following rules of the residence:.. (2) other TENANTS residing at the property, and their rights, must be respected…

 

16. TENANT understands, and agrees, that the tenant will respect all other tenants and Iandlords by observing reasonable noise levels, and not disturbing other tenants. The TENANT will NOT give keys to this apartment, the building, or the basement (as access to the laundry room), to ANYONE. Violations to the privacy, security, and comfort of other tenants or landlord, will be considered a violation of this lease, and will result in immediate eviction…

 

3. The tenant conducted furniture refurbishing activities in the basement at the subject property, and referenced those activities in signs posted at the premises and on business cards listing the property’s address. The tenant turned the heat up in the basement when he worked there, without permission of the landlords. The landlords permitted certain of the furniture repair activity initially, until such time as it increased in scope and appeared consistent with business activity, for which the property is not zoned. The landlords instructed the tenant to discontinue the activity, which he eventually did.

4. On October 31, 2006, the tenant greeted children “trick or treating” at his door, dressed only in underwear.

5. When the landlords went on vacation, they gave the tenant keys for the other units and authorized him to let other tenants into their units should they misplace keys, and to undertake minor repairs. The tenant used the keys to let himself into his neighbors’ apartments, without their permission.

6. On or around November 21, 2006, the landlords sent and the tenant received a document entitled “notice to quit” which required the tenant to vacate the property by December 5, 2006,

 

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and specified the tenant’s behavior which was alleged to violate the lease. I infer receipt by the tenant based on two factors: the landlord’s credible testimony identifying the tenant’s handwriting on exhibit 4 and my observation that his signature on that exhibit appears similar to that on the certified mail receipt associated with the notice to quit; and the tenant’s admission in conversation with the landlord, acknowledging the allegations of the November 21 notice.

7. On or around December 6, 2006, the landlords served and the tenant received a rental period notice terminating the tenancy. The notice to quit stated that the landlord “desires possession of the premises based upon your breach of the terms and conditions of your lease.” The notice did not specify which behaviors constituted the lease violations, nor which provisions of the lease were violated.

8. Between December 6 and December 10, 2006, the landlord and the tenant met in person. They discussed the specific allegations of the November 21 notice, and the tenant acknowledged many of the

activities mentioned therein.

9. On or around December 10, 2006, the tenant delivered a letter to the landlords which stated as follows: “I don’t know if I can find a new home by Feb.1, 2007 – but I’ll try.”

10. On or around February 12, 2007, the complaint in this case was entered, which alleged as grounds for the sought eviction that “the defendant has failed and refused to pay monies due for rent and failed and refused to vacate the premises after service of a 30-day notice to quit attached hereto and incorporated herein.”

11. Rulings of Law: In defense to the landlord’s case, the tenant argues in the alternative that the tenancy was not properly terminated, and that the evidence did not establish a violation of the lease. For the reasons set forth below, the landlords are entitled to a ruling in their favor on both

 

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points.

12. Termination of Lease: The tenant argues that the lease between the parties included no mechanism for its termination, and is therefore not terminable, except by statute (G.L. c. 186, s. 11), for nonpayment of rent. I disagree. The lease created a tenancy subject to a condition subsequent. It did not provide that the lease would automatically terminate upon breach, but rather provided that upon breach the landlords “may” sue for rent or initiate eviction proceedings. This language afforded the landlords three options upon breach: do nothing; sue for rent; or initiate eviction proceedings. As it was necessary for the landlords to make an affirmative choice about how to proceed, it was also necessary for the landlords to inform the tenant of their choice, i.e. give notice. In the absence of an election to terminate and notice thereof, the lease would have remained in effect. See generally, Markey v. Smith, 301 Mass. 64, 71 (1938)(“The distinction between an estate upon condition and the limitation by which an estate is determined upon the happening of some event is…(i)n the latter case the estate reverts to the grantor…upon the mere happening of the event upon which it is limited, without entry or other act; while in the former, an entry upon breach of condition is requisite to revest the estate.”)

13. The legislature has established notice requirements in three circumstances: as to a tenancies under lease (G.L. c. 186, s. 11) and at will (G.L. c. 186, s. 12), a 14 day notice to quit is required in the case of nonpayment; and a rental period notice is required to terminate a tenancy at will for no reason, or for reasons other than nonpayment. G.L. c. 186, s. 12. The legislature could have, but has not, established a notice period for terminating a tenancy under lease for reasons other than nonpayment. As such, the parties are free to contract for a specific notice period, in the absence of which, as here, the landlords’ need to elect termination of the lease upon

 

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the occurrence of a condition subsequent implies some reasonable

notice thereof to the tenant. The notice afforded the tenant in this case was more than reasonable: he received a 14 day notice enumerating the alleged lease violations with particularity; a rental period (more than 30 days) notice specifying the fact of lease violations and termination of the tenancy; and had at least one conversation reiterating both. The tenant received far more than was required to inform him of the landlords’ election, upon the occurrence of the condition subsequent (the breach[es]), to terminate the lease.[1]

14. Nor is the case fatally defective, as argued by the tenant, for the landlord’s failure to specify the lease violations in the notice to quit attached to the complaint. The purpose of a notice to quit in cases of a lease subject to a condition subsequent is to inform the tenant of the landlord’s election to terminate the lease. The rental period notice attached to the complaint satisfied this standard. And while the complaint merely alleged in general terms the basis for the sought eviction, it comports with notice pleading, and the tenant’s due process rights were amply protected by the right to discovery (and exercise of that right), particularly against the backdrop of the fully informative November 21 notice to quit, and pre-litigation conversation thereafter.

15. Finally, I conclude that the evidence did establish lease violations. The tenant used keys to enter other residents’ units, conducted business activity in the basement, and made unauthorized use of heat in the basement to the detriment of the landlord in the form of an

 

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[1] Although it could be argued that p. 16 of the lease creates a tenancy with a conditional limitation, and automatically terminates the lease upon the occurrence of the condition (violating the privacy, security and comfort of other tenants or the landlord), I am not reaching this issue as it is unnecessary to do so in light of my ruling herein. In addition, to the extent that the consequences of IN 5 and 16 create an ambiguity about how the lease is terminated, that ambiguity is construed against the drafters (the landlords), in favor of requiring notice to the tenant of termination.

 

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increased gas bill.

16. Counterclaims: The tenant’s counterclaims are not properly raised in this case, as this is not a case “where the tenancy has been terminated without fault of the tenant…” G.L. c. 239, s.8A. The tenants’ counterclaims are therefore dismissed without prejudice.

17. Order for Entry of Judgment: Based upon the foregoing, judgment for possession shall enter in favor of the plaintiffs.

 

So entered this _____ day of June, 2007.

 

 

 

 

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End Of Decision

 

HOUSING COURT

WALTER BOURQUE v. LISA LAVALLEY

 

WESTERN DIVISION

 

Docket # NO. 04-CV-00297

Parties: WALTER BOURQUE v. LISA LAVALLEY

Judge: /s/Dina E. Fein

Associate Justice

Date: July, 2007

FINDINGS, RULINGS, AND ORDER

 

The above-captioned matter came before the court for trial on May 4, 2007, after which the following findings of fact and rulings of law are to enter, as provided for under Mass. R. Civ. P 52(a):

1. Findings of Fact: The parties own lots and reside in a residential subdivision in Easthampton, Massachusetts, known as Pine Hill Meadows (“the subdivision”). The subdivision was created by a declaration of restrictions, conditions, and covenants (the covenants), dated June 21, 1991. The object of the covenants “is to secure the health, beauty, ornamentation and value of the premises.” The covenants attach to and run with the land, and are enforceable by any lot owner. In pertinent part, the covenants provide as follows:

 

7. The discharge of any harmful substances, hazardous materials and wastes, such as, but not limited to, petroleum products are prohibited within the development…

11. No trailers, trucks, boats, recreational vehicles, or unregistered vehicles shall be placed, parked, or stored upon any lot except within the enclosed

 

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garage, or behind the front line of the house, nor shall any repair be performed upon any boat or motor vehicle upon any lot, except within the enclosed garage or where not visible from the street.

 

2. On January 18, 1995, the Town of Easthampton adopted a zoning by-law (the by-law). The by-law established 14 zoning districts. The subdivision is located in the Residential-Rural C (R-35) district. Under the by-law, single family detached dwellings are permitted as of right as a principal use in the R-35 district. Permissible accessory uses in the R-35 district include storage of a trailer, unregistered automobile or boat, as long as they are stored within a principal or accessory building, or not less than 25 feet from any lot line nor within the side yards. Specified home occupations are also permitted in the R-35 district. (By-law, s. 10.4). “[Title use or storage of heavy vehicles or heavy equipment” and “trucking…activities” are prohibited home occupation uses. (By-law, s. 10.43).

3. The plaintiffs, Mr. and Ms. Bourque, reside in the subdivision at 10 Pine Hill Road, having purchased their lot in 1992, and

constructed their home in 1993. Since 1996, the defendants, Mr. and Ms. LeValley, have resided diagonally across the street at 15 Pine Hill Road. Prior to the spring of 2003, Mr. Levalley performed construction work at the subdivision, and regularly kept construction vehicles there overnight. After the construction work was completed, in or around the spring of 2004 and following, Mr. LeValley continued to store construction vehicles overnight on his property, or in the street adjacent to his property. These vehicles, a back-hoe, and dump truck, and a “10-wheeler,” caused noise, mostly in the daytime.

4. Mr. LeValley has been a truck driver for thirty years. For approximately the past five years, Mr. LeValley has driven for “We Care Transportation.” He currently owns a 2006 deisel, dual catalytic motor, 10-wheeler tractor (the 10-wheeler), which he

purchased for $130,000, uses

 

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in the course of his profession as a truck driver, and stores at his home in the subdivision when it is not in use. The 10-wheeler does not fit in the LeValleys’ garage.

5. Mr. LeValley’s schedule requires that he leave his house, in the 10-wheeler, between 5:00 and 7:00 p.m., and he returns at approximately 7:00 a.m. Since this court issued an injunction on August 11, 2004, Mr. LeValley has parked his 10-wheeler in the side-yard of his property, behind the front line of the house, and immediately adjacent to the side line boundary between his property and that of his neighbors, Roselyn Brezinski and her family.

6. The defendants and the plaintiffs both have pick-up trucks which they use as their personal vehicles, and store at their homes. The plaintiffs primarily store their pick-up truck in their garage; the defendants primarily store their pick-up truck in their driveway.

7. Mr. LeValley’s 10-wheeler has a back-up alarm which sounds when it is in reverse gear. The 10-wheeler is audible to the plaintiffs and the defendants’ neighbors when idling, and when traveling down their street. In addition, Mr. LeValley occasionally has difficulty getting the 10-wheeler out of his yard and driveway, such as when it slips on ice or gravel, or gets stuck in mud. Mr. LeValley parks the 10-wheeler next to a fence which defines the side yard boundary between his house, and that of his neighbors, the Brezinskis. That fence is located 20 feet from the side wall of the Brezinskis’ home, on the side of the house where three of their bedrooms are located. When the defendant backs the 10-wheeler into his side yard, the vibrations rattle the Brezinskis’ home, and a plume of exhaust fumes emanates into their yard. Mr. LeValley’s use of the truck wakes the plaintiffs and the Brezinskis from their sleep, despite the fact that he tries to be as considerate as possible.

8. Rulings of Law: The question before the court is whether the defendants are permitted to

 

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store Mr. LeValley’s commercial 10-wheeler on his property in the subdivision. For the reasons set forth below, I conclude that they are not.

9. A threshold question presented is what, if any, role the by-law plays in this analysis. As to this question, I agree with the plaintiffs, who argued correctly that the by-law sets minimum standards which necessarily inform the covenants, and may not be transgressed by the covenants.[1][2]

10. Several provisions of the by-law make clear that storage of a commercial 10-wheeler in the R-35 district is not permitted as of right. The by-law permits storage of a trailer, unregistered automobile, or boat, as an accessory use, but then only within a principal or accessory building, not within 25 feet from any lot-line, and not within the side yards. (By-law, Table 5-1(5)) The defendants’ vehicle is not among those specified, and is stored both in a side yard, and within 25 feet of a lot line.

11. In addition, Mr. LeValley uses the 10-wheeler in his work as a commercial truck driver. Home occupations are permitted under the by-law, but only by special permit granted by the Zoning Board of Appeals. Uses which are not considered to be home occupations under the by-law include “the use and storage of heavy vehicles or heavy equipment,” (by-law s. 10.43(k)); and “trucking or warehousing activities.” (By-law s. 10.43 (1)).

 

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[1] The defendants sought to introduce testimony by William Chicoine, one of the developers of the subdivision, as to the meaning of the term “truck” in p. 11 of the covenants. I sustained the plaintiffs’ objection to that line of questioning, based on the fact that the covenants constitute a contract, the meaning of which must be determined by the four corners of the document, under the parol evidence rule. In addition, even had the intention of the developers been to permit the storage of a commercial 10-wheeler at the subdivision, that intention would conflict with the by-law, and be impermissible as such.

 

[2] Although the covenants predate the by-law, the defendants purchased their home after its effective date, and their use of the property is therefore not exempt as a preexisting nonconforming use.

 

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12. Nor do the covenants themselves support the defendants’ right to store the 10-wheeler on their property. “…[T]he object of the covenants is to secure the health, beauty, ornamentation and value of the premises.” (Exhibit 3, p. 2.) Under the covenants, building or other business materials must be stored in an enclosed garage, or inside the dwelling. (Exhibit 3, p.9.) Those ancillary vehicles which are permitted under the covenants, namely trailers, trucks, boats, recreational vehicles, or unregistered vehicles (Exhibit 3,

p.11), are for personal or recreational use, not commercial or business use; must be stored in a garage or behind the front line of the house; and may not be repaired where visible from the street, all minimizing their impact on the aesthetics of the subdivision.

13. It is not possible to store a commercial 10-wheeler on the defendants’ property in a manner consistent with the aesthetic safeguards which underlie the covenants. The 10-wheeler is too tall and too long to fit into the defendants’ garage. The defendants are currently storing the 10-wheeler in their side yard, which is not paved, not accessed by the driveway, and visible from the street.

14. In addition, by their terms, the restrictions and conditions of the covenants do not apply to contractors during the construction and sale period of the subdivision. (Exhibit 3, p.18.) This signifies an understanding that commercial activity, and the equipment incidental thereto, would be present during the construction and sale period, and not contemplated thereafter.

15. Furthermore, the question whether the covenants permit the storage of a commercial 10-wheeler is most readily answered by imagining the consequences were each homeowner at the subdivision to do so. I credit Mr. LeValley’s testimony that he tries to be as considerate as possible with respect to the operation of his 10-wheeler in the subdivision. Notwithstanding his

 

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efforts, however, the 10-wheeler causes noise and emits fumes which disturb others in the neighborhood. This is so in part because the vehicle must idle briefly before starting, especially in the winter, and occasionally gets stuck on ice or gravel, further evidence that the subdivision was not designed for this use. Were the defendants herein to prevail in their interpretation of the covenants, the possibility would exist for every homeowner to store a 10-wheeler in his or her side yard, transforming the subdivision into a rumbling and spewing staging area for commercial trucking. Obviously, this scenario was not intended for the subdivision, and if all homeowners may not store commercial vehicles there, no homeowners may.

16. Finally, this case is not about personal use pick-up trucks, which are ubiquitous in our society at large, substitute in many households for traditional family vehicles, and fit easily within standard size garages, including those in the subdivision.

17. The court is mindful that the dispute between the parties has been longstanding, and rancorous. We all want to feel that our home is our refuge, and it is clear that the parties’ conflict has interfered with their ability to feel at ease in their own homes. This ruling, while obviously not the outcome advocated by the defendants, nevertheless creates an opportunity for closure. The parties are urged to keep in mind that they comprise elements of a community, that they are deserving of each others’ respect, and that they would all be well-served by behaving accordingly in relation to one another.

18. ORDER: Based upon the foregoing, the defendants are hereby permanently enjoined from storing the commercial 10-wheeler or any

like kind commercial vehicles at the subdivision. The defendants shall have 30 days from the entry date of this order to make alternative arrangements for storage of the vehicle.

 

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19. Counsel for the plaintiff shall have 14 days from the entry date of this order to file his petition for attorney’s fees under p.19 of the covenants. Counsel for the defendants shall have 14 days thereafter in which to file opposition, if any. The parties are free to reach agreement on this issue, in the absence of which the court will rule on the papers, and final judgment will enter thereafter.

 

So entered this_________day of July, 2007.

 

 

 

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End Of Decision

 

HOUSING COURT

MICHAEL PRICE v. CHARLENA HARRIS

 

WESTERN DIVISION

 

Docket # 07-SP-02287

Parties: MICHAEL PRICE v. CHARLENA HARRIS

Judge: /s/Dina E. Fein

Associate Justice

Date: July, 2007

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned summary process (eviction) case came before the court for trial on July 12, 2007, after which the following findings of fact and rulings of law shall enter, as provided for under Mass. R. Civ. P. 52(a):

1. The plaintiff (landlord) owns the premises located at 83 Bridge Street, 3`d Floor, West Springfield, which he rented to the defendant (tenant) under a written lease effective February 1, 2007. The contract rent for the premises is $650 per month. Rent totaling $1,300 is unpaid through July, 2007. On or around June 4, 2007 the landlord served and the tenant received a notice purporting to terminate the tenancy 14 days thereafter for nonpayment of rent, and indicating in pertinent part as follows: “In accordance with your lease, you will have 2 days to cure this arrearage after you receive this notice by tendering $650 to your landlord.” On June 22, 2007, the landlord served the summons and complaint in this case, alleging nonpayment of rent for June and damage to a rear door, and annexing an account which claimed rent for June and July.

 

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2. In defense to the landlord’s case, the tenant argues that she offered to pay June’s rent by the end of the month, when she receives certain governmental benefits, but the landlord refused her offer. She also argues that the landlord did not permit her to

cure as provided under state law, that she did not owe July rent when the summons was served, and that the landlord may not claim damage to the unit in a summary process case.

3. As an initial matter, it must be noted that various terms of the parties’ lease violate governing statutes and are therefore void as a matter of law. Several of the improper provisions do not bear on issues expressly raised herein. These include paragraph 4, which conditions return of the security deposit on the tenant “fully comply[ing]” with the lease, contrary to G.L. c. 186, s.15B; paragraph 6 which conditions the landlord’s obligation to repair common area damage caused by vandals on the tenant filing a police report within 24 hours; and paragraph 11 which makes the tenant responsible for common area electricity use, contrary to the State Sanitary Code and the Attorney General’s regulations. Any claims that the tenant may have arising out of these improper lease provisions, however, were not raised in counterclaim to the landlord’s case (and are not waived, counterclaims being permissive, not compulsory, in summary process cases), and the court will not sua sponte (on its own) impose liability on the landlord.

4. There is, however, one paragraph of the lease which is contrary to law and does bear on the issues raised herein, that being paragraph 18, which provides in pertinent part as follows:

 

If tenant defaults in the payment of rent or any other term or condition of this Lease, Landlord may give tenant written notice to cure such default. If the Tenant fails to cure such default within 2 days of receiving notice, Landlord may elect to terminate the Lease, re-enter the Leased Premises and remove the Tenant, all other occupants and their possessions.

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5. This provision of the lease misstates the parties’ statutory rights and obligations, is unfair, deceptive, and void as a matter of law. The lease provision purports to authorize the landlord to give the tenant a 2 day “notice to cure” nonpayment of rent, following the expiration of which the lease may be terminated. As it does not specify an alternative notice period for terminating the lease itself, the 14 day requirement of G.L. c. 186, s.11A (s.11A) applies. G.L. c. 186, s.11 (s. 11) also affords a tenant under lease, in default for nonpayment of rent, the right to cure and thereby reinstate the tenancy by paying the rent arrears and costs of suit on or before the day the answer is due in a resulting summary process case. The subject lease provision, to the extent it attempts to waive or vary the notice and cure provisions of s.s. 11 and 11A, is void under G.L. c. 186, s.15A.

6. And in no event may a landlord “re-enter the leased premises and remove the tenant, all other occupants and their possessions” without pursuing a summary process case and obtaining a judgment for possession. The subject lease unfairly and deceptively suggests that the landlord may engage in a “self-help” eviction, that is, recover possession without a court order, contrary to G.L. c. 186, s.s.15B(I)(a) and 15F.

 

7. In addition, the landlord’s notice to quit was not unequivocal, in that it offered the tenant an opportunity to pay June’s rent within two days, but also purported to terminate the tenancy. “The landlord[] could not blow hot and blow cold. [He] had to choose one position and stick to it.” Maguire v. Haddad, 325 Mass. 590, 593 (1950). The requirement of an unequivocal notice to quit is consistent with the long established principle that equity abhors the forefeiture of a lease. E.g Johnson v. Madigan, 361 Mass. 454 (1972); Judkins v. Charette, 255 Mass. 76 (1926);

Atkins v. Chilson, 11 Met. 112. The tenant here had a right under the law to pay the rent arrears and thereby preserve her tenancy. The notice to quit sent mixed messages about the tenant’s

 

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options, and is defective as such.

8. The tenant testified credibly that she offered, in early June, to pay June’s rent by the end of that month, which offer was refused by the landlord. Given that the notice to quit expired on June 18, 2007, and taking judicial notice of the calendar and the Uniform Rules of Summary Process, I find that a summary process case could not have been served prior to June 19, 2007 nor entered prior to June 25, 2007. Payment of June’s rent by the end of June would therefore have been on or before the answer was due (July 2, 2007), and would (assuming payment of costs as well) have operated under G.L. c. 186, s. 11 to reinstate the tenancy. The landlord’s refusal to accept payment by the end of June, forecast by the misleading language in the notice to quit, deprived the tenant of her statutory right to cure.

9. The landlord’s statutory violation was compounded by his including on the summons a claim for July’s rent, not yet due, whereas payment of June’s rent by the end of June, as offered and refused, would have sufficed to reinstate the tenancy by operation of law.

10. In light of the foregoing, I conclude and rule that the default provision in the lease is void as a matter of law. In addition, the notice to quit was deceptive, operated to deprive the tenant of her statutory right to cure, and was defective as such. These defenses having been properly raised by the tenant, she is entitled to dismissal of the landlord’s claim for possession. There being no dispute that rent totaling $1,300 is unpaid, and no monetary counterclaims advanced by the tenant, the landlord is entitled to a judgment in that amount.

11. Finally, in the course of trial, the tenant acknowledged that she has been without gas service, and therefore without hot water and proper cooking facilities, for several weeks. The

 

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tenant is ordered to restore gas service forthwith, in the absence of which the tenant will be ordered to vacate the subject premises until such time as gas service is restored. An order to vacate, if issued, would not vest legal possession in the landlord; legal possession may only be recovered pursuant to a proper summary

process case. Any dispute regarding restoration of the gas service may be brought to the attention of Housing Specialist Department.

12. ORDER FOR ENTRY OF JUDGMENT: The landlord’s claim for possession is hereby dismissed. Judgment for damages, only, in the amount of $1,300, shall enter in favor of the plaintiff.

 

So entered this______day of July, 2007.

 

 

 

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End Of Decision

 

HOUSING COURT

EDDIE ALVAREZ, Plaintiff v. MARILUZ RODRIGUEZ, Defendant

 

 

 

Docket # DOCKET NO. 06-SP-04212

Parties: EDDIE ALVAREZ, Plaintiff v. MARILUZ RODRIGUEZ, Defendant

Judge: /s/Dina E. Fein

Associate Justice

Date: May 10, 2007

FINDINGS, RULINGS, AND ORDER

 

1. The above-captioned matter came before the court for trial on April 6, 2007, at which time the plaintiff (landlord) failed to appear, and the defendant (tenant) appeared. The tenant having vacated the subject premises, the issue of possession is moot. As the landlord failed to appear for trial, his claim against the tenant for unpaid rent is hereby dismissed. Judgment by default shall enter in favor of the tenant on her counterclaims, as per the findings of fact and rulings of law set forth below.

2. In April, 2006, the tenant rented the first floor apartment at 75 Commonwealth Avenue, Springfield (the premises) from the landlord. The contract rent for the premises was $860 per month. The landlord was responsible for gas service, and the tenant was responsible for electricity. The tenant vacated the premises in December, 2006.

3. There were a number of serious and substandard conditions at the premises over the course of the tenancy. Gas service was terminated for nonpayment by the landlord, and the tenant was without hot water for an extended period. There was not adequate heat at the

 

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premises for approximately four months. There was no lock on the basement hatchway. There were ceiling leaks at the premises, including in the kitchen which eventually caused the ceiling to collapse. And there were various defective conditions on the exterior of the premises, as well as an infestation of bugs on the interior. The defective conditions had an adverse affect on the tenant’s use of the premises. She was required to boil water for bathing, used electric space heaters, moved her belongings out of the kitchen, and felt very unsafe due to the unsecured cellar entry.

4. On one occasion, the landlord entered the basement without the tenant’s permission.

5. On August 18, 2006, the tenant brought a complaint against the landlord in this court, requested restoration of hot water. She also reported conditions at the premises to her Section 8 provider, HAP, as well as the City of Springfield Code Enforcement Department. Both agencies cited the landlord for various violations, issuing notices in August and October, 2006. Code Enforcement also summonsed the landlord to appear in this court, in September, 2006. The complaint in this summary process

case was entered in November, 2006.

6. Breach of Warranty of Habitability: The conditions at the premises constituted a breach by the landlord of the implied warranty of habitability. The landlord is liable to the tenant for the reduced fair rental value of the premises, that is the difference between their value as warranted (up to code) and in their actual condition. I find that the fair rental value of the premises was reduced on average by 40% as a result of the substandard conditions. The tenant’s damages for the landlord’s breach of the implied warranty of habitability are therefore $860 (contract rent) x 40% = $344 x 9 months (April through December, 2006) = $,3096.

7. Interference with Quiet Enjoyment: The landlord’s failure to maintain the premises up

 

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to code, failure to provide heat and hot water, and unauthorized entry to the premises interfered with the tenant’s right to quiet enjoyment. The tenant is entitled under G.L. c. 186, s.14 to an award of the greater of her actual damages, or three months’ rent. I award the tenant actual damages in the amount of $3,096 (substandard conditions) + $500 (unlawful entry) = $3,596, subject to a single recovery for breach of the implied warranty of habitability. The tenant is also entitled to costs and attorney’s fees.

8. Retaliation: The events which transpired herein give rise to a presumption of retaliation under G.L. c. 186, s.18, which has not been rebutted by the landlord. By default, the tenant is entitled to an award of tenant three months’ rent, or $2,580, plus costs and attorney’s fees.

9. Chapter 93A: The landlord’s breach of the implied warranty of habitability, interference with quiet enjoyment, and retaliation all constitute violations of G.L. c. 93A, s.2. By default, the tenant is entitled to an award of treble damages or ($3,596 x 3 = $10,788) + ($2,580 x 3 = $7,740) = $18,528 plus costs and attorney’s fees.

10. ORDER: An order, but not a judgment, shall enter, dismissing the plaintiff landlord’s claims and awarding the defendant tenant damages in the amount of $18,528. Counsel for the tenant shall have ten days within which to file her petition for attorney’s fees and costs, after which the court will rule on the papers and final judgment will enter.

 

So entered this 10th day of May, 2007.

 

 

 

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End Of Decision

 

HOUSING COURT

CITY OF SPRINGFIELD, CODE ENFORCEMENT DEPARTMENT, HOUSING DIVISION, Plaintiff v. SOURIRE, LLC., ET AL, Defendants

 

 

Docket # DOCKET NO. 06-TR-038

Parties: CITY OF SPRINGFIELD, CODE ENFORCEMENT DEPARTMENT, HOUSING DIVISION, Plaintiff v. SOURIRE, LLC., ET AL, Defendants

Judge: /s/Dina E. Fein,

Associate Justice

Date: January 18, 2007

RULINGS AND ORDERS ON BAYVIEW’S MOTION IN SUPPORT OF APPROVAL OF SALE OF PROPERTY AND CITY’S MOTION FOR ISSUANCE OF A PERMANENT ORDER

 

The above-captioned matter is before the court on the motion of the defendant Bayview Loan Servicing, LLC as Servicer for Wachovia Bank, N.A., as Indenture Trustee (“Bayview”), to approve the sale of the subject property, and the City of Springfield’s (“City’s”) motion for issuance of a permanent order authorizing demolition of the subject property. For the reasons set forth herein, Bayview’s motion is denied, and the City’s motion is allowed.

1. Procedural Background: On January 12, 2006, the Deputy Director of the Department of Code Enforcement, Housing Division, City of Springfield (“Code Enforcement”) condemned the subject property located at 268-284 Dwight Street Extension and 40 Oswego Street, Springfield (“the subject property;” “the property;” “the building”), and ordered the occupants to vacate. The City initiated this case on January 13, 2006, by way of a Petition to Enforce the State Sanitary Code And/Or Revised Ordinances of the City of Springfield (“the Petition”). The Petition named

 

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Sourire, LLC as the owner of the property, Bayview as the “mortgage company,[1] Atlas Property Management as the property manager,[2] and various individuals as tenants. The Petition sought emergency injunctive relief, including an order requiring the tenants to vacate the premises.

2. On January 18, 2006, the City and Bayview agreed that Atlas Property Management would undertake certain emergency maintenance at the premises and that Bayview would pay for those

services, without assuming any “liability,” nor making any representations concerning “ownership.” Over the next several months, many of the tenants agreed to vacate the premises in exchange for payments by Bayview, and conditioned upon releases of Bayview. Several tenants obtained representation of counsel, and joined claims against Sourire and Bayview. Thereafter, Bayview and Sourire both filed motions to dismiss the claims and cross claims for injunctive relief, and the City moved for appointment of a Receiver. On March 11, 2006, following evidentiary hearing over several days and a view of the property, the court allowed the City’s motion for appointment of a Receiver, and ordered the remaining occupants to vacate the property. By request of the parties, the motions to dismiss were continued generally, and have not been noticed for further hearing nor otherwise brought before the court.

3. On April 26, 2006, the City brought an emergency request before the court, seeking to restrain Bayview from conducting a scheduled foreclosure auction at the property. After hearing on April 28, 2006, the court allowed the foreclosure auction to proceed to the extent of allowing Bayview to accept bids for the property, but prohibited Bayview from transferring title to the

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[1] Bayview was originally identified as Bayview Financial, LP. The court subsequently allowed a motion to amend so as to name Bayview properly as Bayview Loan Servicing, LLC as Servicer for Wachovia Bank, N.A., as Indenture Trustee

 

[2] Atlas Property Management was subsequently dismissed by the City.

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property without approval of the court following hearing. By orders of the court dated April 28, 2006 and May 19, 2006, the court stated that Bayview, in seeking approval to transfer title, would be required to demonstrate the intention and ability of the proposed transferee to bring the subject property into compliance with “all applicable laws, codes and regulations intended for the health, safety, and welfare of occupants of residential premises and any other individuals who may be affected by the condition of the premises.” Order dated April 28, 2006, Abrashkin, J.

4. On June 15, 2006, the court approved the Receiver’s lien pursuant to G.L. c. 111, s. 127I. On October 11, 2006, the City moved for issuance of a permanent order. On November 14, 2006, Bayview moved for leave to transfer the property. Sourire has not opposed either of the pending motions, nor has it appeared for court proceedings since appointment of the Receiver.

5. Findings of Fact: The factual findings in this court’s order entered on March 2, 2006 are specifically incorporated herein. It is sufficient for purposes of this ruling to reiterate that the subject property, a 45 unit apartment block located in the “Hollywood” section of Springfield, became uninhabitable due to disrepair and inadequate management. The most recent owner of

record, Sourire LLC, acquired the property in June, 2005, subject to a mortgage held by Bayview. On December 6, 2005, Bayview conducted a foreclosure auction at the premises, accepted a bid, and entered into a memorandum of sale. The prospective buyer did not, however, go forward with the purchase. After conducting the foreclosure sale, Bayview took no steps to manage the then occupied building, with the limited exception of retaining Atlas Property Management to effectuate certain emergency repairs after having been sued in this case, and without assuming liability.

6. Valley Real Estate (Valley) was appointed as Receiver of the property in March, 2006.

 

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Since its appointment, a representative of Valley has been at the property almost daily. Valley boarded and secured the property at the inception of the receivership. The security was regularly breached, however, in that boards were pulled away allowing unauthorized entry to the building. Valley was eventually required to remove the first floor rear porches and stairways, as a way of limiting access to trespassers. Valley also hired off-duty police officers to patrol the property. One of the off-duty police cars was vandalized on the first night of patrol. Valley has expended over $40,000 in maintaining the building since its appointment in March. Paul Oldenburg, the principal of Valley, does not wish to continue in the role of Receiver beyond the short term.

7. The building has never been properly rehabilitated. No permits are on record with the Building Department for any work performed there. The building is in a significantly deteriorated condition. Ninety percent of the ceilings as well as walls throughout the property are compromised with holes, broken plaster, and exposed lathe. Any smoke or fire detection system at the building is outdated, if operational at all. The condition of the building presents a significant fire hazard: the compromised ceilings and walls allow for fire to spread quickly horizontally and vertically, and the fact that the building is boarded prevents venting on the upper floors. The condition of the building also presents an increased risk of harm to firefighters, were a fire to occur. Because security at the building is frequently breached, firefighters could not assume the building to be empty in the event of a fire, and would be required to search for people. The fact that the windows are boarded from the outside would make it difficult for firefighters to escape the building, particularly from the upper floors. And there is no power at the building to aid in firefighting.

8. Steve Desillets is presently the Code Enforcement Commissioner for the City of

 

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Springfield. He has worked for the City for 11 years, is certified in the national and Massachusetts building codes, and is charged with enforcing the Springfield building code. John Cossaboom is the Fire Marshall for the City. He has worked for the Fire Department

for 30 years, and is charged with enforcing the Massachusetts fire code and pertinent city ordinances. Mr. Desillets and Mr. Cossaboom have inspected the property, and both believe that bringing the subject property into conformity with the State Sanitary Code, the Building Code, and other applicable codes would require a “substantial” rehabilitation. The court credits these opinions.

9. More specifically, the rehabilitation of this building would require a structural analysis for occupant loads; complete updating of the electrical and plumbing systems; a new heating system or systems; new walls, ceilings, floors, and windows; new kitchens and baths; and a new fire detection system with smoke and heat detectors, horns and strobes, and sprinklers.

10. A licensed architect would be required to oversee the property’s rehabilitation. The architect would be required to undertake a “existing building review,” prepare a full scale, detailed set of plans, and monitor the work. In addition, a professional fire protection engineer would be required to design the sprinkler and related fire detection system. In order to have a realistic sense of the project, it is common for prospective developers to undertake a detailed existing building review before purchasing the property.

11. Joan Lupa is an owner of NL Construction, and is licensed in Massachusetts as a construction supervisor. Ms. Lupa has been involved with rehabilitation projects since 1989, and has overseen a number of substantial rehabilitation projects including 36 unit, 48 unit, and 33 unit buildings in Springfield. Ms. Lupa testified credibly that the cost of rehabilitating a property such as the subject property, while varying based upon the materials used, would range up from

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$95,000 per unit; that the cost of replacing windows at the property would be in excess of $100,000; that the cost of replacing appliances at the property would be close to $90,000; and that the cost of a fire suppression and sprinkler system would be over $300,000.

12. Elizabeth Krupp is an Associate Project Director with Wynn Companies, where she works on underwriting for substantial rehabilitation projects, and monitors construction of low income housing and tax credit projects. Ms. Krupp, having viewed only the exterior of the building, testified credibly that the cost of rehabilitating the subject property, assuming that the interiors of the units were in good condition and there was no need to replace appliances and windows (which assumptions are not consistent with the court’s observations of the property), would be a minimum of $60,000 per unit before “soft” costs such as architect, engineer, and attorney fees.

13. Paul Oldenburg, who owns Valley and serves as the Receiver of the subject property, has been working in the field of property development and management since 1965. Valley currently owns and manages between 600 and 650 units, and manages an additional 650 units which it does not own. Valley owns over 200

units in the Hollywood section itself, including one building directly abutting the subject property, and others surrounding it. Mr. Oldenburg has observed this building closely for over 25 years, and has a well informed opinion as to what would be required to rehabilitate it.[3]

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[3] Bayview urges the court not to credit Mr. Oldenburg’s opinion, arguing in its written submissions that he bid on the property at the foreclosure auction and, therefore, has a conflict of interest. Specifically, Bayview states in its opposition at p.7:

 

The foreclosure sale produced five (5) qualified bidders for the Property. The first qualified bidder was Jeffrey Oldenburg [Paul Oldenburg’s son], the Receiver for the Property. See Exhibit A. Thus, the Receiver sought to purchase the Property, and now retains seemingly limitless authority to call for the Property’s demolition. This is a clear conflict of interest by the

 

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14. In addition, Mr. Oldenburg, on behalf of Valley, has rehabilitated a number of buildings comparable to the subject property. He has rehabilitated 14 buildings in the Hollywood section alone. At present, Valley is rehabilitating a 32 unit building, similar to this building, at a cost of $124,000 per unit for “raw construction,” not including “soft costs.” Between two and three years ago Valley completed a rehabilitation project involving 104 units, at a cost of $100,000 per unit.

15. Bayview seeks leave to transfer title to the subject property to PBA Construction, LLC. (“PBA”). PBA is a New York limited liability corporation with a principal place of business at 1063 East 39th Street, Brooklyn, NY. PBA is the assignee of the $139,999 bid which was accepted at the most recent foreclosure auction on April 28, 2006.[4] PBA proposes to pay the sum of $10,001 for assignment of the bid, thereby paying $150,000 in total for the property.

16. The sole member of PBA is Paul Evans. Mr. Evans is a resident of Brooklyn, New York. His mother, sisters, brothers and cousins live in Springfield. Mr. Evans owns three residential properties, two of which are located in Springfield, one on Andrews Street, and one on Northampton Avenue. Mr. Evans’ sister lives in the Andrews Street property. Mr. Evans intends to rehabilitate the Northampton Avenue property, but has not started yet. There have been

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Receiver, and an abuse of the Receiver’s powers with respect to the Property.

Mr. Oldenburg testified credibly that he did not bid at the auction. In addition, and contrary to Bayview’s representations, Exhibit A to its opposition does not identify Mr. Oldenburg as a qualified bidder; it identifies him as having attended the sale,

which is perfectly appropriate given the Receiver’s responsibilities. The second page of Exhibit A identifies the individuals (by number) who actually bid, and neither of the Oldenburgs nor Valley is among them. At a minimum, this represents a significant misunderstanding of its own materials by Bayview.

 

[4] The record does not identify clearly who made the successful bid at auction. The assignor of the bid to PBA is an entity identified as IBMA Property Holdings, LLC, but it is not clear whether IBMA was the original bidder.

 

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“issues” regarding code violations at the Andrews Street property, for which Mr. Evans was fined by the City.

17. Mr. Evans assists his father, Ancel Evans, with property rehabilitation and management. Ancel Evans has been a general contractor for 35 years, owns seven buildings in Brooklyn, and 2 in Jamaica. Mr. Evans is assisting Ancel Evans with the development of the Jamaica properties, and is in Jamaica three or four days per month. Mr. Evans has worked on rehabilitating approximately ten properties since 1982, ranging in size from 4 unit buildings to a single 8 unit building.

18. Mr. Evans was introduced to the subject property by “an investor,” whom he did not identify. He proposes to pay $150,000 in cash for the building, and finance the rehabilitation of the property by securing a loan from Eastern Savings Bank, which is “supposed to be about $1.5” million. The loan application has been prepared by a loan consultant named Rickford Fraser. Mr. Fraser has been affiliated for seven months with The Mortgage Super Center, in East Longmeadow, although Mr. Evans identified Mr. Fraser as affiliated with a business known as “We Do Money.” Mr. Fraser closed his first commercial loan approximately six weeks ago, on an 8 unit building. Mr. Evans does not have a mortgage commitment from Eastern Savings Bank or any other financial institution. In order to pursue his loan application further, he must pay a non-refundable $10,000 deposit, have the building appraised, and secure approval through the bank’s underwriting department. He has not taken these steps to date.

19. Mr. Evan’s ability to secure a loan in the amount he is seeking depends on the performance of the building. Eastern Savings Bank requires that the building perform at 120%, income to expenses. Ancel Evans, who has seen the subject property once, thinks it is “a pot of

 

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gold.” The property is listed for sale on the internet by United Multi Family and/or Nationwide Multi Family Brokerage. In evaluating the property for investment, Mr. Evans, Ancel Evans, and Mr. Fraser considered the income and expense information included in the listing. That information significantly overstates the income experience and potential of the building, and fails to include substantial expenses associated with the property.[5]

 

20. Mr. Evans has not done the level of analysis which is necessary to develop a realistic plan for rehabilitating the property. Mr. Evans has not done a “pro forma” for the property, and is not familiar with that term. His financial analysis to date is limited to a two page “cost estimate” prepared by Erskine Chaffin. Mr. Chaffin is a self-employed registered architect, but is not currently licensed in Massachusetts. Mr. Chaffin’s estimate significantly understates costs in various categories, such as windows, appliances, and fire suppression; and overlooks entirely other categories, including hard costs such as lead abatement and security, and soft costs such as survey and legal fees.

21. Mr. Evans’ demeanor while testifying, as well as that of his father and advisor, Ancel Evans, lead the court to conclude that Mr. Evans does not appreciate the scope of the project he proposes to undertake. Mr. Evans’ responses to questions were vague and incomplete. He testified, for example, both that he does not know whether there is asbestos in the building and that, “to the best of [his] knowledge” there is no asbestos, leaving the impression that he had not investigated the issue and did not view it as significant. Ancel Evans, while acknowledging that

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[5] In response to inquiry from the court, counsel for Bayview was unable to say whether Bayview retained UMF to list the property. The record before the court does not establish the connection, if any, between Bayview and UMF, nor whether Bayview knew or should have known that the listing includes information which is inaccurate.

 

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he was not an expert regarding asbestos, testified cavalierly that he “could remove the asbestos [in the building] in the time [he] was sitting there being questioned.”

22. In addition, Mr. Evans is either not well informed concerning the financial aspects of the project, or not forthcoming. His responses to questions about his own finances, about the properties he owns locally, and about his previous experience with property rehabilitation, were evasive. His plan, which is to “start on one section at a time,” is not a plan at all.

23. Furthermore, Mr. Evans’ assumptions about what it will cost to rehabilitate the property are significantly off the mark by any reasonable measure. Per the loan proposal to Eastern Savings Bank, Mr. Evans proposes to get a construction loan in the amount of $1,450,000 (which he characterized as “about $1.5 million”). Mr. Chaffin’s “cost estimate” projected a total construction cost of $1,684,000, including an architect’s fee. This represents a cost of approximately $37,500 per unit, which is far too low and entirely unrealistic. The credible opinions offered by Ms. Lupa and Mr. Oldenburg establish a realistic range of $95,000 – $124,000 per unit, for a total construction cost of $4,275,000 – $5,580,000, not including “soft costs.” Were Mr. Evans to proceed as planned, the project would be woefully undercapitalized, with no realistic possibility of bringing the property into code compliance.

 

24. Bayview ‘s Motion In Support of Approval Of Sale of Property: As indicated above, Bayview conducted a foreclosure auction at the property on December 5, 2005, accepted a bid, and entered into a memorandum of sale. By notice dated January 12, 2006, the building was condemned by the City’s Board of Health.[6] Bayview has consistently denied that it has legal

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[6] Bayview’s opposition to the City’s motion for issuance of a permanent order repeatedly characterizes the City as currently requesting leave to condemn the subject property. That characterization is inaccurate. The city condemned the property a year ago, with notice to

 

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responsibility to make repairs at the subject property, and has functionally abandoned the building, notably excepting its efforts to locate a buyer. It was therefore necessary for the court to appoint a Receiver on March 1, 2006, so as to insure the safety of the people then occupying the premises and, upon their vacating, to maintain security. The Receiver has worked responsibly and effectively to mitigate the conditions which existed at the property previously, including systemic disrepair, unauthorized occupants, and rampant illegal activity which terrorized the neighborhood.

25. Bayview’s motion does not arise in a vacuum, but rather against the factual background described above. For the past year, significant public resources have been expended on this property, in the form of the City’s efforts to enforce the State Sanitary Code, the disproportionate demands on public safety personnel, and the court’s involvement in overseeing the receivership. The court has an obligation to evaluate Bayview’s proposed transfer of the property with this significant expenditure of public resources in mind, and specifically so as to minimize the likelihood of significant additional public expenditures. It is not the taxpayers’ responsibility to maintain private property.

26. Regrettably, Bayview has not demonstrated that its prospective buyer has the intention or the ability to bring this property into code compliance. Mr. Evans lacks a basic understanding of the scope of this project, has not taken sufficient responsible steps to apprize himself of its scope, and therefore underestimates what is needed and what it will cost. I am mindful of the argument made on behalf of PBA, namely that it is reluctant to invest significant money in the project until

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Bayview. The notice of condemnation included language explaining the recipients’ right to a hearing. No hearing was requested.

 

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such time as the court approves the transfer. There is a minimum amount which a prudent developer must do, however, in order to

evaluate the viability of an investment. PBA has fallen short of that minimum. The fact that PBA is unable or unwilling to undertake a responsible investigation reinforces the court’s conclusion that it does not have the capacity to complete the project successfully. Bayview’s motion to approve the sale to PBA is therefore denied.

27. The City’s Motion for a Permanent Order: The City seeks leave to demolish the building under G.L. c. 111, s. 127B (“s.127B”) which provides in pertinent part as follows:

 

 

If compliance with the regulations contained in said code has not been effected within one year from the date the premises have been so closed up the board of health may cause such structure to be demolished or removed…

 

28. Bayview, the only party who opposes the City’s motion, bases its opposition solely on its attempt to sell the property to PBA which, for the reasons set forth above, the court will not approve. Nor does the court discern any other basis for denying the City its statutory authority to demolish the property as requested. More than one year has transpired since the building was condemned, and code compliance has not been achieved. In point of fact, no effort whatsoever has been made over the past year to make this property habitable, and there is no party before the court indicating an intention to make repairs, or acknowledging a responsibility to do so. Nor has the City sought to compel any party to make repairs since condemning the property.

29. In the absence of any party assuming responsibility voluntarily or in response to an order sought by the code enforcement agency, the court is left with no choice but to allow the demolition to proceed. This is not a decision the court takes lightly, but no viable alternative has been advanced by the parties. The building in its current condition represents a serious threat to the health and safety of members of the public, including public safety personnel, which threat

 

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has been mitigated to date only through the responsible efforts of the Receiver. Bayview having failed to identify an appropriate transferee, and having declined, as far as the record reflects, to bid on the property itself and rehabilitate the building, the court is faced with the possibility of leaving the receivership in place indefinitely. This is not acceptable. Valley has expended over $40,000 without reimbursement to date, and is unwilling to continue as Receiver on a long term basis. In addition, the time necessarily spent by City officials and the court in managing and monitoring a receivership of indefinite duration would unreasonably drain public resources. Finally, the building is presently uninhabitable and will remain so until and unless someone undertakes the very substantial investment necessary to accomplish code compliance. Bayview has had over a year to identify such a buyer, with no success. A receivership is not intended for the purpose of maintaining a vacant and uninhabitable building indefinitely

following foreclosure, while the mortgagee tries to sell it. Consistent with s. 127B, a year is long enough. 30. ORDER: For the foregoing reasons, Bayview’s Motion In Support of Approval Of Sale of Property is denied, and the City’s Motion for a Permanent Order is allowed. Within 10 days of the entry date of this order, the Receiver is requested to file an updated report, with copies to all parties.

 

So entered this 18th day of January, 2007.

 

 

 

 

cc: Dennis Powers, Esq.

Kevin R. Byrne, Chief Housing Specialist

 

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End Of Decision

 

HOUSING COURT

JUSTIN DIONNE, Plaintiff v. MARIA RIOS and ELIAS FIGUEROA, Defendants

 

 

 

Docket # DOCKET NO. 07-SP-04131

Parties: JUSTIN DIONNE, Plaintiff v. MARIA RIOS and ELIAS FIGUEROA, Defendants

Judge: /s/Dina E. Fein

Associate Justice

Date: December 2007

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned matter came before the court for trial on December 6, 2007, after which the following findings of fact and rulings of law shall enter, as provided for under Mass. R. Civ. P. 52(a):

1. Findings of Fact: The plaintiff (landlord) manages the property located at 350 Liberty, Street, Springfield. In August, 2006, the defendants (tenants) moved into a third floor unit at the building. In October, 2006, the tenants moved to a first floor unit at the building (the premises), with permission of the landlord, and pursuant to an oral tenancy at will. The agreed upon rent for the premises is $650 per month.

2. Miguel Velez performs certain property management functions for the landlord, including collecting rent and making repairs. The tenants have three dogs, at least two of which (American bulldogs) have been living with them throughout the tenancy. Based upon the credible evidence

 

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offered at trial, I find it more likely than not that Mr. Velez was aware of the tenants’ dogs when they moved into the premises.

3. On or around August 29, 2007 the landlord served and the tenant received a rental period notice to quit asserting the following as grounds for the termination: “violation of [the] tenancy by keeping dangerous animals (two pitbulls), ignoring no dog policy after previous warnings, and for nonpayment of rent.”

4. Rent totaling $9,750 has been due since the tenants moved into the premises fifteen months ago. The landlord alleges unpaid rent in the amount of $6,600 though December, 2007. According to his own records (Exhibit 4), however, the tenants have paid $4,250 since October, 2006, leaving an unpaid balance of $5,500. Ms. Rios testified that she made some rental payments for which she did not receive a receipt from Mr. Velez, and Ms. Davis testified to observing such transactions. Even crediting this testimony, it does not prove that the tenants were not credited for the payments, nor suffice to rebut the landlord’s evidence that rent totaling $5,500 is unpaid through December, 2007.

5. Rulings of Law: The landlord has proved one of the alleged grounds for this eviction, namely nonpayment of rent. There being no written rental agreement, in order for the landlord to prevail on his argument that the tenants are also in violation of their tenancy terms by having dogs at the premises, he would have to prove that the parties all understood and agreed that dogs were not permitted at the premises. I find and conclude that the preponderance of the evidence does not establish such an agreement. To the contrary, I conclude that Mr. Velez was more likely than not

aware that the tenants were moving in with dogs, and permitted them to do so, either expressly or tacitly by not instructing them otherwise at the inception of the tenancy. As Mr.

 

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Velez has acted with express and/or apparent authority of the landlord, the tenants were justified in concluding that they had the right to have dogs at the apartment.

6. This is not to say that the tenants would be permitted to have dogs at the premises under all circumstances. Were the dogs to cause damage to the premises, or interfere with other tenants’ right to quiet enjoyment, those facts might establish grounds for eviction. The landlord argued, however, that the very fact of there being dogs in the apartment violated the terms of the tenancy, an assertion which I conclude he has not met his burden of proving.

7. Counterclaims: In defense and counterclaim to the landlord’s case, the tenants allege that there are substandard conditions at the premises. As I indicated at trial, the tenants are not permitted as of right under G.L. c. 239, s.8A to interpose their counterclaims in this case, as this is a “for cause” eviction brought pursuant to a rental period notice to quit.[1] As such, I ruled that the counterclaims were not permitted to be raised in defense to the landlord’s claim of possession. In the interest of judicial economy, however, and with the agreement of the parties, I took evidence on the counterclaims, subject to the limitation that the outcome would not bear on possession.

8. The tenants allege that there are a number of substandard conditions at the premises. Based upon the credible evidence, I conclude that there has been an infestation of roaches and mice at the premises since the inception of the tenancy (October, 2006). Although the landlord offered evidence of extermination in August and November, 2007, the documentation establishes

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[1] Counterclaims under G.L. c. 239, s.8A are permitted as of right in response to a notice to quit for nonpayment of rent. I interpret the statute as permitting counterclaims in response to a 14 day notice to quit. This case, however, is brought pursuant to a rental period notice in which two “fault” bases are alleged: nonpayment of rent and keeping dogs in violation of the agreement.

 

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the existence of roaches and mice as recently as November 14, 2007, and Mr. Velez’ frequent presence at the premises makes it highly unlikely that he was unaware of the ongoing problem.[2]

9. The tenants’ allegations regarding conditions at the premises constitute a claim based upon breach of the implied warranty of habitability, for which the landlord is strictly liable. Berman & Sons v. Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979). It is usually impossible to fix damages for breach of the implied warranty with mathematical certainty, and the law does not require absolute certainty, but rather permits the courts to use

approximate dollar figures so long as those figures are reasonably grounded in the evidence admitted at trial. Young v. Patukonis, 24 Mass.App.Ct. 907, 506 N.E.2d 1164 (1987). The measure of damages for breach of the implied warranty of habitability is the difference between the value of the premises as warranted (up to “Code), and the value in their actual condition. Haddad v. Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991).

10. Based upon the tenants’ credible testimony, inter alia, that there are roaches in their oven and refrigerator and dead mice at the premises, I find that the fair rental value has been reduced by 25% since the inception of the tenancy. The tenants’ damages for the landlord’s breach of the implied warranty of habitability are therefore $650 (contract rent) x 25% = $162.50 x 15 months = $2,437.50.

11. Conclusion and Order for Entry of Judgments:

 

A. Judgment for possession shall enter in favor of the plaintiff landlord.

 

B. Judgment shall enter in favor of the plaintiff landlord for $3,062.50 (unpaid rent

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[2] Mr. Velez’ testimony that “every building has cockroaches and mice” is factually inaccurate and legally irrelevant; insect and rodent infestation violates the minimum standards of fitness for human habitation as set forth in the State Sanitary Code.

 

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of $5,500 less tenants’ damages of $2,437.50). So entered this day of December, 2007.

 

 

 

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End Of Decision

 

HOUSING COURT

CARL MICHELS C/O VIRGILIO PROPERTY MANAGEMENT, Plaintiff v. MIGUEL BODON, Defendant

 

 

 

Docket # No. 07-SP-2421

Parties: CARL MICHELS C/O VIRGILIO PROPERTY MANAGEMENT, Plaintiff v. MIGUEL BODON, Defendant

Judge: /s/Dina E. Fein Associate Justice

Date: November 2007

RULING AND ORDER ON DEFENDANT’S MOTION TO DISMISS

 

The above-captioned summary process case came before the court on October 23, 2007, for hearing on the defendant’s motion to dismiss. For the reasons and upon the conditions set forth herein, the motion is denied.

1. Facts:[1] Miguel Bodon (the tenant) resides at 60 Locust Street, Holyoke. Carl Michels (landlord) is the owner of the subject property, and Virgilio Property Management, Inc. (Virgilio) is the landlord’s property manager. Cecile Rivera is an employee of Virgilio; she is not an attorney.

2. On July 2, 2007, the tenant, Miguel Bodon, was served with a summary process complaint, alleging nonpayment of rent (by reference to a 14 day notice to quit). The complaint identified the plaintiff as “Carl Michels c/o Virgilio Property Management,” and was signed by Ms. Rivera.

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[1] Both parties asserts facts which are not self-evident on the face of the pleadings. For example, the tenant’s motion and memorandum assert that “the plaintiff…coerced the defendant into signing a court agreement,” that the tenant “speaks little if any English,” and that the landlord’s actions were taken “to avoid the tenant’s filing an answer and engaging in other defensive actions.” The landlord offered an affidavit of Ms. Rivera which averred that the tenant came to her office when served with the complaint “and stated he did not want to go to Court – he wanted to make an agreement.” As both parties rely on facts outside the pleadings, I will analyze the pending motion under the familiar summary judgment standard, in which disputed facts and reasonable inferences therefrom will be construed against the moving party.

 

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3. On the day he was served with the complaint, the tenant entered into an agreement with Ms. Rivera. The agreement was reflected on a “summary process agreement for judgment” form utilized and distributed by the court. In addition to various boilerplate provisions, the agreement provided that no judgment was to enter; that the “landlord” would make specified repairs; that the tenant would make specified payments towards rent and arrears; and that the case would be dismissed when the tenant’s rent balance was zero. On July 9, 2007, the summary process complaint and the agreement were together filed with the court.

4. On August 6, 2007, a motion for issuance of the execution was filed with the court. The next day, Ms. Rivera and the tenant executed a second agreement, which was filed with the court on August 10, 2007. The terms of the second agreement provided that judgment for possession, $1,109, and costs would enter in favor of the landlord; that the execution would issue “forthwith;” and that use of the execution would be stayed conditioned upon the tenant making certain payments.

5. On September 19, 2007, a second motion for issuance of the execution was filed by Ms. Rivera and marked for hearing on September 27, 2007, at which time counsel appeared for the tenant and moved orally to dismiss the case. The court issued an order continuing the case, ordering the plaintiff to appear at the next hearing through counsel, and providing a deadline for the tenant, through counsel, to file a written motion to dismiss. That issue was properly joined for hearing on October 23, 2007, at which time counsel appeared for the landlord.

6. Discussion: The tenant seeks dismissal of the case on two grounds: that Virgilio engaged for purposes of this case in the

unauthorized practice of law; and that Virgilio’s use of the court agreement form was unfair and deceptive. I will address these arguments in turn.

 

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7. The tenant is correct that the case, as initially styled and brought, was improper. Virgilio, being a corporation, is not permitted to appear “pro se” through an officer or employee. Varney Enters., Inc. v. WMF, Inc., 402 Mass. 79, 81 (1988). In addition, the landlord, Carl Michels, was free to represent himself, or appear through counsel. He could not be represented, however, by a lay (non-lawyer) property manager. LAS Collection Management v. Pagan, 447 Mass. 847 (2006).

8. The history and posture of this case, however, are distinguishable from LAS in significant ways, militating in favor of remedies short of dismissal. In LAS, for example, a hearing took place in the trial court during which LAS’s owner testified and cross-examined other witnesses. Id. at 848. No such activities have taken place in this case. In addition, no attorney appeared for the property owner or the property manager in LAS throughout the trial court and appellate court proceedings. In short, the facts in LAS framed only two stark alternatives: permit a non-attorney property manager to represent a landlord; or dismiss the case. Here, counsel has now appeared on behalf of the landlord, presenting a third alternative which was not present in LAS.

9. In addition, the pending case has not been finally adjudicated, and the tenant has not been prejudiced in any final or irreversible way by the procedures to date. The court, in the exercise of its case management discretion, can fashion a remedy which serves the interests of judicial economy by obviating serial litigation, and also insures that the tenant receives all of the process to which he was entitled on July 2, 2007 when served with the original complaint. Under these circumstances, dismissal of the case is not required.[2]

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[2] The complaint in this case was arguably defective as signed by a non-lawyer employee of the corporate property manager. Mr. Michels, the plaintiff and real party in interest, is now represented by counsel, however, and I see no need to require that he file an amended complaint signed by his attorney, in light of my order that he appear henceforth through counsel.

 

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10. The tenant also argues that the case should be dismissed as a sanction because Virgilio engaged in unfair and deceptive practices by utilizing a court agreement to resolve a dispute which was not yet a court matter. As to this point, many of the relevant facts are disputed or not established on the record, including whose idea it was to enter into an agreement and what the tenant understood the agreement to signify.

11. It is clear from the record, however, that the agreement was

executed before the case was entered. The tenant argues that this sequence renders the agreement inherently deceptive, as it refers to a court case which was not pending when it was signed. I disagree that the use of the court’s agreement form to settle a dispute in which the complaint had been served but not yet entered, is per se unfair or deceptive.

12. Rule 2(b) of the Uniform Summary Process Rules provides in pertinent part as follows: “The date of service pursuant to this paragraph shall be deemed the date of commencement of the action subject to proper entry in accordance with the provisions of Rule 2(d).” There being no question that this case was properly entered, it was “commenced” as of July 2, 2007 when the tenant was served with the summons and complaint. The timing of “commencement” under the summary process rules signifies that the initial agreement between the parties was not, as argued by the tenant, “signed one week before any case existed.”

13. Nor was the original agreement facially unfair or unbalanced: it did not enter judgment in favor of either party; imposed obligations on the “landlord” as well as the tenant; and anticipated dismissal of the case when the tenant became current with rent, as required by statute. Assuming, for purposes of the pending motion only, that the parties made an informed decision to resolve their nascent dispute when and in the manner they did, the agreement did not per se transgress the tenant’s rights.

 

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14. There are, of course, circumstances in which a landlord’s use of the court agreement form before entry of a case might represent an unfair or deceptive practice. Failing to enter the case might well transform the practice into a deceptive one, as might misrepresenting the content or import of an agreement to an otherwise uninformed or unsophisticated tenant. On the record before the court in this case, however, it cannot be said that the tenant was deceived by the practice, nor that it requires dismissal, assuming compliance with the terms set forth below.

15. ORDER: Based upon the foregoing, the tenant’s motion to dismiss is denied. The plaintiff Carl Michels is ordered to appear henceforth through counsel. The parties’ agreements dated July 2, 2007 and August 7, 2007 are hereby vacated. Unless the parties, through counsel, reach an alternative resolution of the case, the tenant shall file his answer, with or without counterclaims, within 10 days of the entry date of this order, after which the Clerk’s office is requested to convene a pretrial conference and schedule the balance of the litigation.

So entered this day of November, 2007.

 

 

cc: Peter Montori, Esq.

Assistant Clerk-Magistrate

Kelly Jones, Esq.

Law Clerk

 

 

 

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End Of Decision

 

HOUSING COURT

FRANK SWART, Plaintiff v.SHAMARA JONES, Defendant

 

 

 

Docket # DOCKET NO. 08-SP-00076

 

Parties: FRANK SWART, Plaintiff v.SHAMARA JONES, Defendant

 

Judge: /s/Dina E. Fein

Associate Justice

 

Date: January 2008

 

FINDINGS OF FACT, RULINGS OF LAW, AND ORDER

 

The above-captioned summary process (eviction) case came before the court for trial on January 24, 2008, after which the following findings of fact and rulings of law shall enter as provided for under Mass. R. Civ. P. 52(a):

1. Landlord’s Case: The plaintiff (landlord) owns the 12 unit building located at 40 Warriner Avenue, Springfield, and rented Apartment 4RF to the defendant (tenant), effective August, 2005, pursuant to a written tenancy at will agreement. The contract rent for the premises is $600 per month. Although disputed by the tenant, I find it more likely than not that on or around December 20, 2007 the landlord served and the tenant received a 14 day notice terminating the tenancy for nonpayment of rent. Rent totaling $1,840 is unpaid through January, 2008.

2. Defenses and Counterclaims: In defense and counterclaim to the landlord’s case, the tenant raises substandard conditions at the premises, and complains that the landlord interfered

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with her privacy. The tenant has not met her burden of proving substandard conditions which rise to the level of breaching the implied warranty of habitability. Although there was a roof leak, the record does not disclose when it developed and, by the time it caused a ceiling panel to fall down, the tenant was already in arrears, eliminating her claim under G.L. c. 239, s.8A.

3. The tenant alleges that the landlord interfered with her privacy in two ways: by allowing several of her belongings to be stolen; and by entering her apartment without permission. As to the former, the landlord is entitled to a ruling in his favor; there is no basis for inferring that the landlord or anyone acting under his control is responsible for the missing belongings.

4. I do find, however, that the landlord entered the apartment on three occasions, without notice or permission. In March, 2006, the landlord “could hear water running and running through the pipes,” so he went in and fixed the toilet. He wrote to the tenant after the fact, and indicated that he hoped she was not upset about him going in. On January 16, 2007, the landlord attempted to enter the apartment, but was stopped by the chain on the door, which frightened the tenant’s son. On the same day, the tenant wrote to the landlord complaining about his attempted entry, and stating: “You are not suppose (sic) to enter into my home unless there is an emergency, or give me 24 hr notice…” Thereafter the landlord told the tenant he would “make every attempt” to give her notice before entering the apartment. Since then, the evidence establishes only one additional entry by the landlord, that being just prior to trial. Again the landlord heard water running in the pipes. The utility company had contacted him earlier in the week for access to disconnect service, such that he had reason to believe the tenant had moved or was in the process of moving. He thereafter entered the apartment to check on the water, again without notice or permission.

 

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5. The question of whether the landlord interfered with the tenant’s quiet enjoyment by virtue of his unauthorized entries is a close one. His purpose in entering the apartment was legitimate;

he was concerned about a malfunctioning toilet and resulting water usage. Although the better practice would absolutely have been to notify the tenant in advance, a practice which the landlord would be well advised to follow in the future, under the specific circumstances of this case I cannot say that he was unreasonable or “at least negligent” as is required to show interference with quiet enjoyment. Al-Ziab v. Mourgis, 424 Mass. 847, 851, 679 N.E.2d 528, 530 (1997).

6. The landlord’s unauthorized entry did violate the security of the tenant’s premises, however, representing a breach of the warranty of habitability, for which the landlord is strictly liable. Berman & Sons v. Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979). The measure of damages for breach of the implied warranty of habitability is the difference between the value of the premises as warranted, and the value in their actual condition. Haddad v. Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991). I find that the fair rental value of the premises was reduced by $200 for each of the three occasions on which the landlord entered without notice. The tenant’s damages for the landlord’s breach of the implied warranty of habitability are therefore $600.

8. ORDER: As provided for under G.L. c. 239, s.8A, the tenant shall have ten days from the entry date of this order to deposit with the Clerk’s office the sum of $1,240 (landlord’s rent claim of $1,840 minus tenant’s damages of $600). If she does so, a judgment for possession shall enter in favor of the tenant, and the funds shall forthwith upon request be released to the landlord. If

the tenant fails to deposit the funds, a judgment for possession and $1,240 shall enter in favor of

 

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the landlord at the expiration of the 10 day period.

So entered this day of January, 2008.

 

 

 

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End Of Decision

 

HOUSING COURT

THONG D. NGUYEN, Plaintiff v. SONIA FERNANDEZ, Defendant

 

 

 

 

Docket # DOCKET NO. 08-SP-00028

 

Parties: THONG D. NGUYEN, Plaintiff v. SONIA FERNANDEZ, Defendant

 

Judge: /s/Dina E. Fein

Associate Justice

 

Date: January 2008

 

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned summary process (eviction) case came before the court for trial on January 17, 2008, after which the following findings of fact and rulings of law shall enter, as provided for under Mass. R. Civ. P 52(a):

1. The plaintiff (landlord) owns the multifamily building located at 177 Dickinson Street, Springfield, and rented Apartment 1 (the premises) to the tenant effective July 16, 2007, pursuant to a written tenancy at will agreement.[1] The contract rent for the

premises is $860 per month. The tenant has a Section .8 voucher; HAP pays a portion of her rent, and her share is $324 per month. Rent totaling $648, representing the tenant’s share for December, 2007 and January, 2008, is unpaid. On or around December 10, 2007 the landlord served and the tenant received a 14 day notice terminating her tenancy for nonpayment of rent.

2. In defense and counterclaim to the landlord’s case, the tenant raises the following

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[1] The parties characterized their agreement as a lease. In fact, it is a written month-to-month (tenancy at will) agreement. This distinction has no bearing on the outcome of the case.

 

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substandard conditions at the premises: an infestation of roaches; a kitchen sink leak which causes the sink cabinet to deteriorate; a dead and decomposing animal in the fireplace; and a defective lock on the kitchen door. In response, the landlord asserts that the premises passed HAP inspection before the tenant moved in; that the tenant caused some of the conditions; and that he has not been notified of the substandard conditions.

3. I find that there has been an infestation of roaches since the inception of the tenancy. Although the landlord attempted to deal with the problem by exterminating in October and November, 2007, I conclude based upon the credible evidence that those attempts have not eradicated the problem, which is ongoing. In addition, the landlord has not shown that the problem was caused by the tenant; I credit the tenant’s testimony concerning her housekeeping habits, and the record does not support the landlord’s argument that her single cat, of which he had notice, caused the roach problem or interfered with its treatment.

4. At the inception of the tenancy, there was a leak under the kitchen sink. The landlord fixed the leak, but did not repair the kitchen cabinet which was damp, deteriorated and emitted a foul odor. I credit the tenant’s testimony that she complained about the condition to the landlord beginning in mid-August, 2007, and that eventually she removed the drawers and doors, and sealed the remaining cabinet

5. In mid-November, 2007, the tenant detected another foul odor emanating from the fireplace, which she determined was caused by a dead and decomposing animal. She complained to the landlord, and asked that he deal with the animal. Even crediting the landlord’s testimony that the tenant swore at him in the course of that telephone conversation, the tenant’s behavior did not relieve the landlord of his responsibility to address the problem. The odor persisted for

 

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approximately a month, during which the tenant sealed the fireplace and limited use of that room.

6. The tenant paid for supplies to make improvements at the premises. In large parts, those supplies were for cosmetic improvements, such as painting. The tenant also paid $28.47 for an

indoor fogger (extermination), and $11.97 for materials used to seal the kitchen sink cabinet.

7. In mid-November, 2007, the tenant complained to the Office of Housing about the conditions at the premises, including the defective kitchen door. The record does not establish, however, that the landlord was informed of the tenant’s complaint to the Office of Housing, nor that he was otherwise notified about the problem with the kitchen door lock.

8. The tenant’s allegations regarding conditions at the premises constitute a defense based upon breach of the implied warranty of habitability, for which the landlord is strictly liable. Berman & Sons v. Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979). It is usually impossible to fix damages for breach of the implied warranty with mathematical certainty, and the law does not require absolute certainty, but rather permits the courts to use approximate dollar figures so long as those figures are reasonably grounded in the evidence admitted at trial. Young v. Patukonis, 24 Mass.App.Ct. 907, 506 N.E.2d 1164 (1987). The measure of damages for breach of the implied warranty of habitability is the difference between the value of the premises as warranted, and the value in their actual condition. Haddad v. Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991).

9. I find that the fair rental value of the premises has been reduced by 25% on average, since the inception of the tenancy, as a result of substandard conditions. This average takes into account that some of the conditions existed at the inception while others developed during the tenancy, and that the problem with the dead animal abated eventually. The tenant’s damages for

 

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the landlord’s breach of the warranty of habitability are therefore $860 x 25% =$215 x 6 months (July 16, 2007 through January 17, 2007) = $1,290. The tenant is also entitled to be reimbursed for supplies in the amount of $40.44.

10. Order for Entry of Judgment: Based upon the foregoing, judgment for possession and $682.44 (tenant’s damages of $1,330.44 minus landlord’s rent claim of $648) shall enter in favor of the defendant tenant. At the election of the tenant, this sum may be applied to future rent.

11. The landlord is ordered forthwith to exterminate for roaches, and to comply with any instructions by the Springfield Office of Housing or Code Enforcement Department. This case shall remain open for sixty days. During this time, any dispute concerning repairs at the premises may be brought to the court’s Housing Specialist Department, the determination of which shall be binding upon the parties unless superceded by a judge.

 

So entered this day of January, 2008.

 

 

cc: Kevin R. Byrne, Sr.

Chief Housing Specialist.

 

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End Of Decision

 

HOUSING COURT

MOHAMMAD IDREES, Plaintiff v. CHRYSTEL ROMERO, Defendant

 

 

 

 

Docket # No. 07-SP-2999

 

Parties: MOHAMMAD IDREES, Plaintiff v. CHRYSTEL ROMERO, Defendant

 

Judge: /s/Dina E. Fein,

Associate Justice

 

Date: January 30, 2008

 

FINDINGS OF FACT, RULINGS OF LAW, AND ORDER

 

This summary process (eviction) action came before the court for trial on December 5, 2007, with written closing arguments submitted on December 20, 2007. Upon consideration of the parties’ evidence and arguments, the following findings of fact and rulings of law are to enter, as provided for under Mass. R. Civ. P. 52(a):

1. Findings of Fact. The plaintiff Mohammad Idrees (the landlord) owns the single family home located at 54 Justice Drive, Amherst (the premises). Effective November 1, 2006, the landlord rented the premises to the defendant Chrystel Romero (the tenant), pursuant to a written lease for a nine month term.[1] The contract rent for the premises is $1,200 per month, and the tenant is responsible for paying for natural gas, which is used for heat, hot water, and cooking. The landlord intended originally to charge $1,450, but agreed to reduce the rent to $1,200 per month in exchange for the tenant painting the interior of the premises, and for the nine month lease term only. The tenant is current with her rent.

2. The lease between the parties provided in pertinent part as follows:

5. The lessee will be responsible for all small to medium repairs in the

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[1] This agreement was consummated in written form on or about December 8, 2006, but was effective November 1, 2006.

 

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house even (sic) she has to hire a person for such repairs. The lesser (sic) is responsible only for major repairs…

6. The lesser (sic) will send a copy of the town’s water and sewerage bill to lessee for its prompt reimbursement to the lesser (sic)…

11. The lessee is aware of the risk of water coming into the garage and the downstairs living room due to heavy rain and melting snow and ice. Therefore the lessee takes the responsibility to make sure that the sump pump in the living room is always connected to a live electric outlet and outside gutter down spouts are always connected together and diverted away from the house. Lesser (sic) will not be responsible what so ever (sic) for any water damages to the lessee’s property.

 

3. The tenant is a participant in the Section 8 Housing Choice Voucher Program. At or around the inception of the tenancy, and prerequisite to making rental payments to the landlord on behalf of the tenant, the Amherst Housing Authority inspected the premises and determined that they met housing quality standards.

4. On or around December 6, 2006, the landlord sent the

tenant a proposed statement of conditions which stated in pertinent part as follows: “Interior and exterior of premises are in very good condition except a small hole above the downstairs bath room’s door.” On or around December 21, 2006, the tenant responded with a two page list of conditions which she considered to be substandard. The tenant’s intention in documenting these conditions was to create an accurate record so she would not be liable for the conditions at the end of the tenancy.

5. Approximately seven years ago, prior to the inception of this tenancy, a previous tenant reported water in the basement at the premises. The landlord had a sump pump installed at that time which solved the problem. In December, 2006, the tenant complained of water in the basement. Upon investigating, the landlord determined that there was an electrical problem with the sump pump, which he had rewired. The problem persisted for several days before being remedied. On several occasions beginning in March, 2007, there

 

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were additional infusions of water in the garage and playroom at the premises. The tenant did not report these problems at the time, however; she first reported the ongoing problem to the landlord by letter dated May 14, 2007.

6. At the inception of the tenancy, there was a problem with the hot water. Specifically, the water was too hot initially, and then quickly became too cold. In her response to the landlord’s proposed statement of conditions, the tenant noted as to the main bathroom: “water temperature is inconsistent.” The Board of Health inspected the premises on January 2, 2007, and cited the landlord for inconsistent water temperature, among other conditions. The Board of Health inspection did not reveal inadequate heat. On January 3 and 5, 2007, a licensed plumber went to the premises to address the water temperature problem, which the landlord then understood to be resolved. Upon subsequent notice in early February of an ongoing problem with water temperature, the landlord (through his agent) installed a new water heater.

7. In early January, 2007, the landlord went to Pakistan for several months. During his absence, the landlord delegated the responsibility for maintaining the premises to a licensed architect, William Gillen. The landlord gave Mr. Gillen full authority to spend whatever was necessary to make repairs, and stayed in contact with him via e-mail. Mr. Gillen undertook promptly to remedy the conditions for which the landlord was cited by the Board of Health. Some of the conditions were abated by the time the Board of Health reinspected on February 2, 2007; others were not abated until the end of February. The tenant did not complain to the Board of Health of ongoing problems after February, 2007.

8. In March, 2007, the tenant notified Mr. Gillen that there was no heat at the premises. A heating contractor was dispatched immediately. There are two heat zones at the premises. The downstairs zone was set at 70 degrees, but the upstairs zone was set at 50 degrees. The

 

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heating contractor determined that the pipes in one bedroom had frozen, which interfered with the delivery of heat to the upstairs. Mr. Gillian, on behalf of the landlord, paid for the tenant and her family to stay at a motel for three nights while the heating system was repaired and the heat restored at the premises. Since then, the tenant has never notified the landlord of further heating problems.

9. Prior to May 12, 2007 (Exhibit 28), the landlord contacted a realtor named Roy Johnson about listing the subject property for sale. The landlord is on a fixed income, and is experiencing financial difficulties. He is also undergoing radiation treatment for cancer, and wishes to sell the property. He and his wife also own a commercial property which they attempted to list for sale, but were unable to sell for reasons having to do with wetland restrictions.

10. In May, the landlord communicated with the tenant about his intention to list the property for sale. On or around May 25, 2007, the landlord entered into a contract with Mr. Johnson to list the subject property for sale at an asking price of $349,900. On May 30, 2007, the landlord notified the tenant that he would not be renewing her lease when it expired on July 31, 2007, because he wished to sell the home. The tenant has declined to provide the realtor with the key to the premises, and has not permitted him to take photographs of the interior. After listing the property, Mr. Johnson brought a group of realtors to tour the property, at which time the tenant made negative comments about the premises. Three or four people have looked at the property for purchase, but no offers have been received to date.

11. Rulings of Law: With the above facts established, the claims of the parties are as follows: The landlord claims that the tenancy was properly terminated and that he is entitled to a judgment for possession. The tenant raises defenses and counterclaims for breach of the

 

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implied warranty of habitability, breach of the covenant of quiet enjoyment, retaliatory eviction, and violation of the Consumer Protection Act,. These claims will be considered in turn, below.

12. Warranty of Habitability. There exists with respect to every tenancy a warranty that the premises are fit for human habitation. Boston Housing Authority v. Hemingway, 363 Mass. 184, 196-07, 293 N.E.2d 831 (1973). A material violation of these standards constitutes a breach of the implied warranty of habitability, for which the landlord is strictly liable. Berman & Sons v. Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979).

13. At the inception of the tenancy, there were conditions at the premises that violated the minimum standards of fitness for human habitation as set forth in the State Sanitary Code, specifically those identified by the Board of Health upon inspection in January, 2007. The conditions were abated by the end of February, 2007. Thereafter, the landlord was informed of one additional serious problem, namely inadequate heat for several days in March, 2007.

14. With respect to the infusion of water in the basement and garage, and crediting as I do the tenant’s testimony that the problem has occurred periodically over the course of the tenancy, the landlord reasonably believed that the problem had been remedied

by installation of a sump pump prior to the inception of the tenancy. The sump pump malfunctioned in December, and was promptly repaired by the landlord. In addition, although the tenant testified credibly to a “pretty significant flood” in March, 2007, she did not inform the landlord of the problem at the time, and there is no evidence of an infusion since May 14, 2007, when she did inform the landlord that the problem had recurred.

15. The measure of damages for breach of the warranty of habitability is the difference between the fair rental value of the premises free of defects (up to “Code”) and the fair rental

 

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value of the premises in their actual condition. Boston Housing Authority v. Hemingway, supra. I find that the fair rental value of the premises was reduced, on average, by 20% for the period November, 2006 through March, 2007. This average takes into consideration that some of the conditions were more serious than others, that the various substandard conditions were repaired at different times, and that there was inadequate heat on one occasion in March. The tenant’s damages for the landlord’s breach of the implied warranty of habitability are therefore $1,200 (contract rent) x 20% = $240 x five months = $1,200.

16. Quiet Enjoyment:. Unlike breach of the warranty of habitability, the landlord is not strictly liable for interference with quiet enjoyment. Rather, in order to recover for damages under G.L. c. 186, 14, the tenant must show that the landlord was “at least negligent.” Al Ziab v. Mourgis, 424 Mass. 847, 670 N.E.2d 528 (1997). Based upon the credible evidence offered at trial, including demeanor evidence, I conclude that the landlord acted reasonably: he remedied substandard conditions which existed at the premises prior to this tenancy; the premises passed inspection by the Amherst Housing Authority; the landlord responded promptly to complaints by the tenant and notice from the Board of Health; and, when absent, deputized a qualified individual who did the same.

17. The tenant also argues that the landlord breached the covenant of quiet by his behavior towards her – that he was “irritated” with her, accused her of being “very annoying,” and threatened her with eviction. The landlord in general denies behaving in an aggressive manner towards the tenant, and also denies the tenant’s specific allegations. Based upon my assessment of the parties, I do not conclude that the landlord’s behavior towards the tenant was “at least negligent” or may reasonably be characterized as rising to the level of impairing the nature of her tenancy. Even assuming, as I do, that the tenant testified genuinely when she

 

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stated “I just want to be left in peace so I can live in my home,” and that being notified that the landlord would not renew her lease left her “in shock and heartbroken,” her reactions do not in and of themselves establish the landlord’s liability for interference with quiet enjoyment. The landlord’s conduct, even if it caused these reactions in the tenant, was not unreasonable, and he is therefore entitled to a ruling in his favor on her claim under G.L. c. 186,

s.14.

18. Reprisal: Within six months of the tenant engaging in protected activity – contacting the Board of Health and complaining in writing to the landlord about conditions at the premises – the landlord notified her that he would not be renewing her lease. The sequence and timing of these events creates a presumption of reprisal. G.L. c. 239, s.2A and G.L. c. 186, s. 18. I find, however, that the landlord has rebutted this presumption with clear and convincing evidence that he did not terminate the tenancy as an act of reprisal. I credit the landlord’s testimony that he terminated the tenancy because he wished to sell the property. This conclusion is supported by the landlord’s financial circumstances, his agreement to reduce the rent for a limited term, the landlord’s medical circumstances, the fact that he also sought to sell his commercial property, the fact that he was in discussion with a realtor before receiving the tenant’s letter dated May 14, and the concrete steps he took to sell the subject property. The tenant’s argument that the property is over-priced is not persuasive, and does not establish that the landlord’s action in listing the property was pretextual.

19. The tenant accurately points out that the landlord did not establish the necessity of having the property vacant in order to sell it. Under the circumstances presented, however, it was not necessary for the landlord to do so. Sale of the property constitutes “good cause” to terminate the tenancy under the operative Housing Assistance Payments contract. In addition,

 

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I am convinced that the landlord was motivated in terminating the tenancy by his desire to sell the property, not by a desire to be rid of the tenant or otherwise to retaliate against her.

20. Chapter 93A. The tenant argues that the landlord has violated Chapter 93A by interfering with her right to quiet enjoyment; renting the premises with reckless disregard of substandard conditions which existed at the inception of the tenancy; and including illegal provisions in the lease. Having ruled in the landlord’s favor with respect to the quiet enjoyment claim, he is also entitled to a ruling in his favor on that aspect of the Chapter 93A claim.

21. A landlord is liable under Chapter 93A when he rents a dwelling which, at the inception of the tenancy, “has conditions which amount[] to a violation of

law which may endanger or materially impair the health, safety, or well-being of the occupant; or … is unfit for human habitation,” or fails to remedy substandard conditions following reasonable notice thereof. 940 C.M.R 3.17. Multiple damages (double or treble) are awarded for a wilful or knowing violation of Chapter 93A. “The `willful or knowing’ requirement of s. 9(3), goes not to actual knowledge of the terms of the statute, but rather to knowledge, or reckless disregard, of conditions in a rental unit which, whether the [landlord] knows it or not, amount to violations of the law.” Montanez v. Bagg, 24 Mass.App.Ct. 954, 956, 510 N.E.2d 298, 300 (1987).

22. The landlord is liable under Chapter 93A, as there were conditions at the inception of the tenancy which violated the

minimum standards of fitness for human habitation as set forth in Article II of the State Sanitary Code, including the variable water temperature. For the same reasons that I determined that the landlord was not “at least negligent” with respect to these conditions, however, I also conclude that his violation of Chapter 93A was not wilful or

 

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knowing. The tenant is therefore entitled to her actual damages ($1,200), subject to a single recovery with her breach of warranty damages, plus reasonable costs and attorney’s fees.

23. Finally, the landlord violated Chapter 93A by including several provisions in the lease which are contrary to law, including the provision which required the tenant to pay for water and sewer service. There being no evidence of actual damages resulting from this violation, the tenant is entitled to nominal damages of $25, plus reasonable costs and attorney’s fees.

24. Possession. Where, as here, a tenancy has been terminated without fault of the tenant, G.L.c. 239, s. 8A (s. 8A) permits the tenant to raise any defense or counterclaim arising out of the tenancy. Section 8A also provides in pertinent part as follows: “There shall be no recovery of possession under this chapter if the amount found by the court to be due the landlord equals or is less than the amount found to be due the tenant or occupant by reason of any counterclaim or defense under this section.” Based on s. 8A, the tenant is entitled to retain possession.

25. Order. Based upon the foregoing, an order (but not a judgment) shall enter in favor of the defendant tenant for possession and $1,225, plus reasonable costs and attorney’s fees. Counsel for the tenant shall have ten days from the entry date of this order to file and serve her petition for costs and attorney’s fees. Opposition, if any, shall be filed and served within ten days thereafter, following which the court will rule on the papers, and final judgment will enter.

So entered this day of January, 2008.

 

 

 

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End Of Decision

 

HOUSING COURT

STEVE JAMAL KING, Plaintiff v. MUHAHAMAD MINHAS, Defendant

 

 

 

 

Docket # DOCKET NO. 06-CV-00077

 

Parties: STEVE JAMAL KING, Plaintiff v. MUHAHAMAD MINHAS, Defendant

 

Judge: /s/Dina E. Fein

Associate Justice

 

Date: January 2008

 

ASSESSMENT OF DAMAGES AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned matter came before the court on January 24, 2008 for assessment of damages, following entry of default against the defendant on December 20, 2006. The defendant did not appear for hearing, after notice thereof served by the plaintiff. Upon consideration of the plaintiff’s evidence, I find and rule as follows:

1. Based upon the credible testimony offered by the plaintiff, I conclude that the parties entered into an agreement in or around early, 2006, under the terms of which the plaintiff agreed to do a slate roofing job on a property owned by the defendant. In consideration of the plaintiff’s work, the defendant agreed to pay $9,000, and permitted the plaintiff to occupy a room at the subject premises. The plaintiff performed the agreed upon work. The defendant paid the plaintiff $800 initially, but never paid the balance. In addition, the defendant removed the plaintiffs belongings from the premises, and left them outdoors, where they were ruined.

2. The plaintiff did not offer evidence establishing the value of his ruined belongings. As

 

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such, he is not entitled to damages on that aspect of his claim. The plaintiff did establish that the defendant owes him $8,200 for work performed at the subject premises. Judgment shall therefore enter in that amount.

3. ORDER FOR ENTRY OF JUDGMENT: Judgment shall enter in favor of the plaintiff for $8,200.

 

So entered this day of January, 2008.

 

 

 

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End Of Decision

 

HOUSING COURT

SPRINGFIELD HOUSING AUTHORITY, Plaintiff v. KAREN MCCOOK, Defendant

 

 

 

Docket # DOCKET NO. 07-SP-04717

 

Parties: SPRINGFIELD HOUSING AUTHORITY, Plaintiff v. KAREN MCCOOK, Defendant

 

Judge: /s/Dina E. Fein

Associate Justice

 

Date: January 2008

 

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned matter came before the court for trial on

January 18, 2008, after which the following findings of fact and rulings of law shall enter, as provided for under Mass. R. Civ. P. 52(a):

1. The Springfield Housing Authority (SHA) rented the premises known as 23 Layzon Brothers Road (the premises) to the tenant, under a written lease effective March 10, 1995. The tenant and her now 15 year old son are the authorized occupants of the premises. On or around November 14, 2007 the SHA served and the tenant received a 30 day notice terminating the tenancy for alleged violations of the lease. The tenant is current with her rent.

2. The SHA alleged the following lease violations by the tenant: chronic late payment of rent; poor housekeeping; criminal activity and disturbances; unauthorized occupants; and conducting a business at the premises. Based upon the credible evidence admitted at trial, I find

 

 

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that the SHA has met its burden of proving several of the alleged grounds.

3. The tenant has a history of paying her rent late. This alone would not support a judgment in favor of the SHA, however, as the parties are subject to an order staying use of an execution in case number 07-SP-03086 conditioned upon timely payment of rent by the tenant, with which the tenant is complying.

4. The evidence does not establish that the tenant has engaged in criminal activity at the premises. Although Ms. Correa testified credibly that neighbors have complained to management about criminal activity by the tenant or her guests, this testimony is admissible only to prove the fact of complaints; as to the underlying question of whether criminal activity took place, Ms. Correa’s testimony is inadmissible hearsay.

5. Nor does the record establish that the tenant is subletting her apartment for rent, or operating a business out of the apartment. The letter from Ms. Medema is hearsay. In addition, even were the letter deemed probative for the truth of the assertions therein, at most in establishes that the tenant charged someone to rent a room, but never provided the room in question. If believed, the letter may reflect a fraud perpetrated by the tenant upon its author, but not a lease violation. Nor does the fact that someone listed the premises as the address for JCNK Trucking prove that the business is operating out of the premises. Were a trucking business in fact operating out of the premises, one would imagine that percipient witnesses would be available to testify accordingly. No such witnesses testified at trial.

6. Based upon the credible evidence that was offered, however, including demeanor evidence, I conclude that the tenant’s son is not living at the premises, and that the tenant has not complied with her contractual obligation to report this change in household composition. I also

 

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conclude that the tenant’s poor housekeeping, which has been documented repeatedly over several years, constitutes damage to the premises in violation of the lease. Finally, I conclude that the tenant has had unauthorized occupants at the premises as recently as June, 2007, and that one such occupant had a dog, in violation of the lease.

7. ORDER FOR ENTRY OF JUDGMENT: Based upon the foregoing, a judgment for possession shall enter in favor of the SHA, and the execution shall issue in due course. The tenant’s request for a reasonable accommodation in the form of a referral to the Tenancy Preservation Program (TPP) is allowed in part. There shall be a stay on the use of the execution until March 1, 2008, conditioned upon the tenant not committing any further lease violations. The tenant is referred to TPP, which is requested to assist the tenant in planning for an orderly transition to alternative housing. The SHA may move for relief from the stay for good cause, including an alleged violation of the conditions herein.

 

So entered this day of January, 2008.

 

 

 

 

 

cc: Michael Doherty,

Assistant Chief Housing Specialist

 

Tenancy Preservation Program

 

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End Of Decision

 

HOUSING COURT

JAMES POLLARD, Plaintiff v. WENDY BELIVEAU and STEVEN PAIGE, Defendants

 

 

 

 

Docket # DOCKET NO. 08-SP-00071

 

Parties: JAMES POLLARD, Plaintiff v. WENDY BELIVEAU and STEVEN PAIGE, Defendants

 

Judge: /s/Dina E. Fein

Associate Justice

 

Date: February 2008

 

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

The above-captioned summary process (eviction) case came before the court for trial on January 24, 2008, after which the following findings of fact and rulings of law shall enter, as provided for under Mass. R. Civ. P. 52(a):

1. The plaintiff (landlord) owns the three family property at 96 Hilton Street, Chicopee, having acquired same in July, 2006, at which time the defendants (tenants) already occupied the second floor unit. The agreed upon rent for the premises is $750 per month. The tenants vacated on December 31, 2007, and the issue of possession is therefore moot. Rent in the amount of $350 was unpaid when the tenants vacated.

2. The tenants counterclaimed in the amount of $350, alleging breach of the warranty of habitability and retaliation. The retaliation claim arises out of the fact that the landlord served a “no trespass” order on the tenant Steven Paige after he vacated. Mr. Paige has a sister who lives at the premises, and the “no trespass” order has prevented him from visiting her and assisting her

 

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with a move. Even assuming that the landlord was motivated by a desire to keep peace at the property given the strained relationship between the tenants and the occupants of the third floor, serving a “no trespass” order is not appropriate. The landlord is therefore order to rescind the “no trespass” order forthwith. I do not find, however, that the landlord’s service of the “no trespass” order was retaliatory, and he is therefore entitled to a ruling in his favor on this claim.

3. The tenants’ breach of warranty claim arises out of various conditions at the premises, enumerated in a letter from them to the landlord dated November 1, 2007, the most serious of which was excessive noise caused by the third floor tenants beginning at the end of September. The landlord argues in response to this claim that he acted reasonably in response to the tenants’

complaints. This position is not a defense to the tenants’ breach of warranty claim, however, as to which the landlord is strictly liable (liable without showing fault). Berman & Sons v. Jefferson, 379 Mass. 196, 396 N.E.2d 981 (1979). Rather, the question is whether the substandard conditions reduced the fair rental value of the premises. I find that the fair rental value of the premises was reduced, and award the tenants damages in the amount claimed, $350.

4. ORDER FOR ENTRY OF JUDGMENT: The landlord is awarded $350 in unpaid rent. The tenants are awarded $350. These awards are offset against each other, and the case is dismissed with prejudice as to the claims raised herein.

 

So entered this day of February, 2008.

 

 

 

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End Of Decision

 

HOUSING COURT

DARLENE MERCANDANTE, Plaintiff v. DAVID POWERS, Defendant

 

 

 

 

Docket # No. 07-CV-0173

 

Parties: DARLENE MERCANDANTE, Plaintiff v. DAVID POWERS, Defendant

 

Judge: /s/Dina E. Fein,

Associate Justice

 

Date: 2008

 

RULINGS AND ORDER ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT

The above captioned case is before the court on the plaintiff’s motion for partial summary judgment, seeking judgment on her claims for breach of the implied warranty of habitability, interference with quiet enjoyment, and violation of G.L. c. 93A. Upon consideration of the parties’ arguments and written submissions, and for the reasons set forth herein, the court rules as follows:

1. Factual Background. The undisputed facts taken in the light most favorable to the non-moving party are as follows: The defendant David Powers (landlord) is the owner of a six-unit residential building located at 18 Forest Park Ave, Springfield (subject property or building). The landlord was a resident of the building at all times relevant hereto.

2. The plaintiff Darlene Mercandante was a tenant at the premises from April through November, 2005. Throughout the plaintiff’s tenancy, and for at least eight months prior thereto, the building’s common area entry door did not have a locking mechanism. The landlord was unaware that State law required a locking mechanism on the entry door.

3. The plaintiff alleges that she was assaulted by three men on November 2, 2005. On the date in question, the alleged assailants knocked on the plaintiff’s unlocked apartment door.

 

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The plaintiff did not inquire into the identity of the callers before opening her apartment door. Upon opening the door, the

plaintiff was struck and fell to the floor unconscious, causing her to suffer personal injuries. Despite police investigation, the assailants have never been identified. It is alleged by the plaintiff that the assailant(s) were non-residents of the building, and accessed the building through the unlocked door.

4. Summary Judgment Standard: Summary judgment is appropriate when no material facts are in dispute and the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 569€); Highlands Ins. Co. v. Aerovox, 424 Mass. 226, 232, 676 N.E.2d 801 (1997). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue and the fact that she is entitled to a judgment in her favor. Pederson v. Time Inc., 404 Mass. 14, 16-17, 532 N.E.2d 1211 (1989). “If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts which would establish the existence of a genuine issue of material fact …” Pederson, 404 Mass. at 17, 532 N.E.2d 1211. When reviewing a summary judgment record, the court credits facts in the light most favorable to the nonmoving party. Bisson v. Eck, 430 Mass. 406, 407, 720 N.E.2d 784 (1990); Gray v. Giroux, 49 Mass.App.Ct. 436, 437, 730 N.E.2d 338 (2000).

5. Discussion. The tenant moves for partial summary judgment on Counts II and III of her complaint. Count II alleges that the failure to provide a locking mechanism on the common entry door, as required by statute, caused the plaintiff’s injuries and constituted a breach of the implied warranty of habitability and interference with her quiet enjoyment. Count III alleges that the defendant’s failure to provide a locking mechanism on the common entry door violated Massachusetts safety regulations as well as the warranty of habitability,

 

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and was therefore a per se violation of c.93A.

6. Count H. The Warranty of Habitability. There is implied in every rental of residential premises a warranty that the premises are fit for human habitation. Boston Housing Authority v. Hemingway, 363 Mass. 184, 196-97 (1973). A landlord is strictly liable for conditions which breach the implied warranty of habitability. Berman & Sons v. Jefferson 379 Mass. 196, 396 N.E.2d 981 (1979).

7. It is undisputed that, from the inception of the tenancy and eight months prior thereto, there was no lock on the common entry door at the building, in violation of G.L. c. 143, s. 3R and 105 C.M.R. 410.480. Existing as it did at the inception, this condition breached the implied warranty of habitability even absent notice of the condition by the tenant to the landlord. McKenna v. Begin, 3 Mass.App.Ct. 168, 325 N.E.2d 587 (1975), and the plaintiff is entitled to a ruling in her favor to this effect. This is different, however, from granting summary judgment in favor of the plaintiff on her breach of warranty claim, to which

she is not entitled, for the reasons set forth below.

8. Generally, a tenant is entitled to contractual damages for violations of the warranty of habitability, the measure of which is the difference between the value of the premises as warranted (up to “Code”), and the value in their actual condition. Haddad v.

Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991). The plaintiff, however, does not claim reduced fair rental value damages; she claims personal injury damages, for which she argues the landlord is strictly liable, without the need to prove the elements of common law negligence.

9. The legal issue presented, namely whether a landlord is strictly liable for personal injury damages arising out of breach of the warranty of habitability, has not been squarely addressed by the appellate courts. Compare Crowell v. McCaffrey, 377 Mass. 443, 444 (1979)(Question of landlord’s liability for personal injuries under warranty of habitability

 

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theory should have gone to the jury where there was evidence of negligence.) I need not reach that question for purposes of the pending motion, however, because even in the case of strict liability, the plaintiff bears the burden of proving a causal link between the injury suffered and the claimed violation. On the record before the court, a question of fact remains on the issue of causation.

10. The undisputed facts do not establish that the alleged assailants entered the building unlawfully through the unlocked common area door. On the record before the court it is equally plausible that the alleged assailants were residents of the building, or invited guest of residents, such that they would have had access to the interior portions of the building irrespective of whether a lock was present on the front entranceway door or not.

11. In addition, it is undisputed that the plaintiff’s apartment door was not locked at the time of the assault, and that she opened the door to the alleged assailants without requesting that they identify themselves in advance. Even assuming that the assailants entered without permission through the unlocked common area door, a question of fact remains as to whether the plaintiff’s actions in leaving her own door unlocked and allowing the assailants to enter her apartment constituted an intervening superceding cause of her injury. Such a determination is properly left to the trier of fact.

12. Quiet Enjoyment. In order to recover for damages under G.L. c. 186, s.14, the plaintiff is required to show that the landlord was “at least negligent.” Al Ziab v. Mourgis, 424 Mass. 847, 670 N.E.2d 528 (1997). As noted above, questions of fact exist on the issue of causation, which is a necessary element in proving negligence. The plaintiff is therefore not entitled to summary judgment on her claim for interference with quiet enjoyment.

 

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13. Count III. The plaintiff seeks summary judgment on her claim for violation of G.L. c. 93A, arguing that the failure of the defendant to provide a locking mechanism on the front door violated both the warranty of habitability and the Attorney General’s regulations, and was therefore a per se 93A violation.

14. The Attorney General’s regulations provide in pertinent part as follows:

 

 

It shall be an unfair or deceptive act or practice for an owner to:

(a) Rent a dwelling unit which, at the inception of the tenancy

1. contains a condition which amounts to a violation of law which may endanger or materially impair the health, safety, or well-being of the occupant …

 

15. There being no dispute that the defendant rented a dwelling unit without a lock on the main entry door, in violation of the State Sanitary Code, the plaintiff is entitled to a ruling that he violated Chapter 93A. As with the plaintiff’s breach of warranty claim, however, the record does not establish the necessary causal link between the defendant’s Chapter 93A violation and the plaintiff’s injuries, precluding summary judgment in her favor.

16. Order. For the above reasons, the plaintiff’s motion for summary judgment is denied.

So entered this day of 2008.

 

 

 

cc: Kelly Jones, Esq.

Law Clerk

 

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End Of Decision

 

HOUSING COURT

CARL MICHELS C/O VIRGILIO PROPERTY MANAGEMENT, Plaintiff v. MIGUEL BODON, Defendant

 

 

 

 

Docket # No. 07-SP-2421

 

Parties: CARL MICHELS C/O VIRGILIO PROPERTY MANAGEMENT, Plaintiff v. MIGUEL BODON, Defendant

 

Judge: /s/Dina E. Fein

Associate Justice

 

Date: November 7, 2008

 

RULING AND ORDER ON DEFENDANT’S MOTION TO DISMISS

 

The above-captioned summary process case came before the court on October 23, 2007, for hearing on the defendant’s motion to dismiss. For the reasons and upon the conditions set forth herein, the motion is denied.

1. Facts:[1] Miguel Bodon (the tenant) resides at 60 Locust Street, Holyoke. Carl Michels (landlord) is the owner of the subject property, and Virgilio Property Management, Inc. (Virgilio) is the landlord’s property manager. Cecile Rivera is an employee of Virgilio; she is not an attorney.

2. On July 2, 2007, the tenant, Miguel Bodon, was served with a summary process complaint, alleging nonpayment of rent (by reference to a 14 day notice to quit). The complaint identified the plaintiff as “Carl Michels c/o Virgilio Property Management,” and was signed by Ms. Rivera.

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[1] Both parties asserts facts which are not self-evident on the face of the pleadings. For example, the tenant’s motion and memorandum assert that “the plaintiff…coerced the defendant into signing a court agreement,” that the tenant “speaks little if any English,” and that the landlord’s actions were taken “to avoid the tenant’s filing an answer and engaging in other defensive actions.” The landlord offered an affidavit of Ms. Rivera which averred that the tenant came to her office when served with the complaint “and stated he did not want to go to Court – he wanted to make an agreement.” As both parties rely on facts outside the pleadings, I will analyze the pending motion under the familiar summary judgment standard, in which disputed facts and reasonable inferences therefrom will be construed against the moving party.

 

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3. On the day he was served with the complaint, the tenant entered into an agreement with Ms. Rivera. The agreement was reflected on a “summary process agreement for judgment” form utilized and distributed by the court. In addition to various boilerplate provisions, the agreement provided that no judgment was to enter; that the “landlord” would make specified repairs; that the tenant would make specified payments towards rent and arrears; and that the case would be dismissed when the tenant’s rent balance was zero. On July 9, 2007, the summary process complaint and the agreement were together filed with the court.

4. On August 6, 2007, a motion for issuance of the execution was filed with the court. The next day, Ms. Rivera and the tenant executed a second agreement, which was filed with the court on August 10, 2007. The terms of the second agreement provided that judgment for possession, $1,109, and costs would enter in favor of the landlord; that the execution would issue “forthwith;” and that use of the execution would be stayed conditioned upon the tenant making certain payments.

5. On September 19, 2007, a second motion for issuance of the execution was filed by Ms. Rivera and marked for hearing on September 27, 2007, at which time counsel appeared for the tenant and moved orally to dismiss the case. The court issued an order continuing the case, ordering the plaintiff to appear at the next hearing through counsel, and providing a deadline for the tenant, through counsel, to file a written motion to dismiss. That issue was properly joined for hearing on October 23, 2007, at which time

counsel appeared for the landlord.

6. Discussion: The tenant seeks dismissal of the case on two grounds: that Virgilio engaged for purposes of this case in the unauthorized practice of law; and that Virgilio’s use of the court agreement form was unfair and deceptive. I will address these arguments in turn.

 

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7. The tenant is correct that the case, as initially styled and brought, was improper. Virgilio, being a corporation, is not permitted to appear “pro se” through an officer or employee. Varney Enters., Inc. v. WMF, Inc., 402 Mass. 79, 81 (1988). In addition, the landlord, Carl Michels, was free to represent himself, or appear through counsel. He could not be represented, however, by a lay (non-lawyer) property manager. LAS Collection Management v. Pagan, 447 Mass. 847 (2006).

8. The history and posture of this case, however, are distinguishable from LAS in significant ways, militating in favor of remedies short of dismissal. In LAS, for example, a hearing took place in the trial court during which LAS’s owner testified and cross-examined other witnesses. Id. at 848. No such activities have taken place in this case. In addition, no attorney appeared for the property owner or the property manager in LAS throughout the trial court and appellate court proceedings. In short, the facts in LAS framed only two stark alternatives: permit a non-attorney property manager to represent a landlord; or dismiss the case. Here, counsel has now appeared on behalf of the landlord, presenting a third alternative which was not present in LAS.

9. In addition, the pending case has not been finally adjudicated, and the tenant has not been prejudiced in any final or irreversible way by the procedures to date. The court, in the exercise of its case management discretion, can fashion a remedy which serves the interests of judicial economy by obviating serial litigation, and also insures that the tenant receives all of the process to which he was entitled on July 2, 2007 when served with the original complaint. Under these circumstances, dismissal of the case is not required.[2]

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[2] The complaint in this case was arguably defective as signed by a non-lawyer employee of the corporate property manager. Mr. Michels, the plaintiff and real party in interest, is now represented by counsel, however, and I see no need to require that he file an amended complaint signed by his attorney, in light of my order that he appear henceforth through counsel.

 

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10. The tenant also argues that the case should be dismissed as a sanction because Virgilio engaged in unfair and deceptive practices by utilizing a court agreement to resolve a dispute which was not yet a court matter. As to this point, many of the relevant facts are disputed or not established on the record, including whose idea it was to enter into an agreement and what the tenant understood the agreement to signify.

 

11. It is clear from the record, however, that the agreement was executed before the case was entered. The tenant argues that this sequence renders the agreement inherently deceptive, as it refers to a court case which was not pending when it was signed. I disagree that the use of the court’s agreement form to settle a dispute in which the complaint had been served but not yet entered, is per se unfair or deceptive.

12. Rule 2(b) of the Uniform Summary Process Rules provides in pertinent part as follows: “The date of service pursuant to this paragraph shall be deemed the date of commencement of the action subject to proper entry in accordance with the provisions of Rule 2(d).” There being no question that this case was properly entered, it was “commenced” as of July 2, 2007 when the tenant was served with the summons and complaint. The timing of “commencement” under the summary process rules signifies that the initial agreement between the parties was not, as argued by the tenant, “signed one week before any case existed.”

13. Nor was the original agreement facially unfair or unbalanced: it did not enter judgment in favor of either party; imposed obligations on the “landlord” as well as the tenant; and anticipated dismissal of the case when the tenant became current with rent, as required by statute. Assuming, for purposes of the pending motion only, that the parties made an informed decision to resolve their nascent dispute when and in the manner they did, the agreement did not per se transgress the tenant’s rights.

 

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14. There are, of course, circumstances in which a landlord’s use of the court agreement form before entry of a case might represent an unfair or deceptive practice. Failing to enter the case might well transform the practice into a deceptive one, as might misrepresenting the content or import of an agreement to an otherwise uninformed or unsophisticated tenant. On the record before the court in this case, however, it cannot be said that the tenant was deceived by the practice, nor that it requires dismissal, assuming compliance with the terms set forth below.

15. ORDER: Based upon the foregoing, the tenant’s motion to dismiss is denied. The plaintiff Carl Michels is ordered to appear henceforth through counsel. The parties’ agreements dated July 2, 2007 and August 7, 2007 are hereby vacated. Unless the parties, through counsel, reach an alternative resolution of the case, the tenant shall file his answer, with or without counterclaims, within 10 days of the entry date of this order, after which the Clerk’s office is requested to convene a pretrial conference and schedule the balance of the litigation.

So entered this ‘ day of November, 2007.

 

 

 

 

cc: Peter Montori, Esq.

Assistant Clerk-Magistrate

Kelly Jones, Esq.

Law Clerk

 

 

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End Of Decision

 

HOUSING COURT

RAMON FIGUEROA v. TANYA BUKOWSKI

 

WESTERN DIVISION

 

 

Docket # 07-SP-04050

 

Parties: RAMON FIGUEROA v. TANYA BUKOWSKI

 

Judge: /s/Dina E. Fein

Associate Justice

 

Date: December, 2007

 

FINDINGS, RULINGS, AND ORDER

 

The above-captioned summary process (eviction) case came before the court for trial on November 29, 2007, after which the following findings of fact and rulings of law shall enter, as provided for under Mass. R. Civ. P. 52(a):

1. The plaintiff (landlord) owns the 4-unit property located at 595 Chicopee Street, Holyoke, and rented the first floor front apartment (the premises) to the defendant (tenant) under a written lease effective July 1, 2007. The agreed upon rent for the premises is $800 per month. On or around October 6, 2007 the landlord served

and the tenant received a 14 day notice terminating the tenancy for nonpayment of rent. Rent totaling $1,600 is unpaid through November, 2007.

2. In defense and counterclaim to the landlord’s case, the tenant raises substandard conditions at the premises, inadequate heat and hot water, and violation of the security deposit statute. I will treat these claims in turn.

3. Conditions: At the inception of the tenancy, there existed the following conditions at the

 

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premises which violated the minimum standards of fitness for human habitation as set forth in the State Sanitary Code: insufficient means of egress; inadequate heat and hot water; an infestation of roaches; and a defective refrigerator. Although the problem with inadequate heat did not manifest itself until the weather turned cold, the landlord testified candidly that he did not check the system prior to the onset of the heating season, and it is more likely than not that the defective condition existed when the tenant took occupancy in July.

3. The landlord argues that he should not be liable for these conditions, as to which he was not notified by the tenant before she contacted the Health Department on or around October 25, 2007, after being served with the notice to quit. This argument is unavailing, however, as the landlord is strictly liable (liable without a showing of fault) for conditions which existed at the inception of the tenancy. Berman and Sons, Inc. v. Jefferson, 379 Mass. 196, 200 (1979). The landlord also disclaims responsibility for the defective refrigerator. Under the lease, however, he agreed to provide a refrigerator, and he was therefore required to provide one in good working order.

4. The heat was fully restored as of November 1, 2007. The premises were professionally exterminated on November 13, 2007. Although the tenant testified credibly that the infestation has not been completely ameliorated the infestation, there is no evidence that she so informed the landlord prior to trial, such that his liability for the condition is not ongoing. The landlord replaced the defective refrigerator and created a second means of egress sometime in November.

5. The substandard conditions at the premises represent a breach by the landlord of the warranty of habitability, which is implied in every tenancy. B.H.A. v. Hemingway, 363 Mass. 184 (1973). The tenant’s damages for the landlord’s breach of the implied warranty of

 

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habitability are the difference between the fair rental value of the premise as warranted (up to “Code”), and in their actual condition.

6. I find that the fair rental value of the premises was reduced by 15% from July 1, 2007 through September 14, 2007, and by 25% from September 15, 2007 (the onset of the heating season) through November, 2007 (when the heat was repaired and the extermination tool: place). Beyond November, the landlord is not liable, because

he was not provided notice of ongoing problems with roaches prior to trial, and because there is no evidence of ongoing conditions which substantially affect the tenant’s use of the premises. The tenant’s damages for the landlord’s breach of the implied warranty of habitability are therefore $800 (contract rent) x 15% = $120 x 2.5 months = $300 + $800 x 25% = $200 x 2.5 months = $500 = $800.

7. Inadequate Heat and Hot Water: In order to recover damages arising out of inadequate heat and hot water beyond those awarded for the landlord’s breach of the implied warranty of habitability, the tenant much show that the landlord was “at least negligent” with respect to these conditions. Al Ziab v. Mourgis, 424 Mass. 847 (1997). The tenant has not made this showing: she did not offer evidence that the landlord was informed about any problem with hot water; and the landlord responded reasonably to notice of the heat problem. The landlord is therefore entitled to a ruling in his favor on this claim.

8. Security Deposit: The tenant paid a security deposit of $500 at the inception of the tenancy. The landlord properly and timely placed the security deposit in an interest bearing account, segregated from his own funds and thereby beyond the reach of creditors, as required by statute. G.L. c. 186, s.15B. The landlord provided the tenant with a receipt for the security deposit, although he did not place the bank name and account number on the receipt. Under

 

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these circumstances, the landlord is not required to forfeit the security deposit. G.L. c. 186, s. 15B(6)(a) (security deposit is forfeited when landlord fails to deposit it in a separate interest bearing account as required by G.L. c. 186, s.15B(3)).

9. Order: Based upon the foregoing, and as required by G.L. c. 239, s.8A, the tenant shall have ten days from the entry date of this order, below, to deposit with the Clerk’s office the sum of $1,600 (unpaid rent) – $800 (tenant’s damages) = $800. If the tenant timely deposits the $800, the funds forthwith upon request shall be released to the landlord, and judgment for possession shall enter in favor of the tenant. If the tenant fails timely to deposit the funds, judgment for possession and $800 shall enter in favor of the landlord at the expiration of the 10 day period.

10. Other Relief The landlord shall forthwith restore access to the tenants to use the basement for storage. The tenants are prohibited from adjusting any of the mechanical systems located in the basement. The landlord shall post his name and contact information in the common area at the property, along with the name and contact information for his local agent. The landlord shall also forthwith arrange for additional extermination at the premises. Upon 24 hours written notice, the tenant must allow access for the extermination.

So entered this_________day of December, 2007.

 

 

 

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End Of Decision

 

HOUSING COURT

ANNE POLIAK v. ROBERT KUSHNER

 

 

WESTERN DIVISION

 

 

Docket # CIVIL ACTION NO. 06-CV-00285

 

Parties: ANNE POLIAK v. ROBERT KUSHNER

 

Judge: /s/Dina E. Fein

Associate Justice

Sitting by Designation to the Superior Court

 

Date: February 28, 2008

 

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

 

The above captioned civil matter came before the court for trial on January 16, 2008, after which the following findings of fact, rulings of law, and judgment shall enter:

1. The plaintiff Anne Poliak owns the real property located at 855-868 Sumner Avenue, Springfield (the subject property). The property consists of a two family home and two lots: one with frontage on Sumner Avenue, on which the home is located (the front lot); and a second lot immediately to the rear of the first (the rear lot), with no frontage on Sumner Avenue or any other public way.

2. Ms. Poliak purchased the subject property in 1977 from her uncle and aunt, Frank and Rose Marafort, who had owned it since 1945. Ms. Poliak herself has lived at the property since 1945, originally with her parents and siblings as tenants of her aunt and uncle.

3. Immediately adjacent to the subject property are two lots presently owned by the defendant, Robert Kushner. Mr. Kushner purchased his lots in 2000, from Carl Lederer and Joe

 

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Abdow. The defendant owns a commercial enterprise which operates on the lot immediately adjacent to the plaintiff’s front lot, and utilizes a portion of that lot for parking. The defendant’s lot

immediately adjacent to the plaintiff’s rear lot is unimproved and is used informally for overflow parking, although it is not zoned as such. The defendant hopes to obtain a zoning change which will permit him to pave his rear lot, and use it for parking.

4. Since 1945, Ms. Poliak and members of her family have passed over the defendant’s lots for various purposes. As children, the plaintiff and her siblings used the defendant’s back lot as a baseball field. They also cut through the lots as pedestrians to access the railroad tracks which run behind the lots.

5. In addition, the configuration of the plaintiffs lots and the structures on the lots make it impossible for trucks and other large heavy equipment to access her rear lot from the front lot. In 1945 or 1946, Mr. Marafort fenced in the rear lot and put a gate in that portion of the fence which runs along the defendant’s back lot, so as to allow access to the plaintiff’s rear lot from the defendant’s back lot. Mr. Marafort operated a mini-farm on the rear lot throughout the 1950’s and 1960’s, growing shrubs and vegetables on the land and in a hot house. Mr. Marafort and those working for him passed over the defendant’s lots to access the rear lot with heavy equipment as necessary for various activities associated with gardening, such as delivering top soil, mowing, rototiling, and fertilizing.

6. Since acquiring the subject property in 1977, the plaintiff and landscapers working on her behalf have regularly passed over the defendant’s lots with heavy equipment used to maintain the rear lot. Although the plaintiff no longer uses the rear lot for growing shrubs and vegetables to the extent that her uncle did, she, her landscapers, and their trucks have continued to obtain

 

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access to the rear lot, through the gate, two or three times per month from Spring to late Fall, in order to do routine maintenance on the property. During the winter, she has accessed the rear lot by way of the defendant’s lot as needed to deal with any problems that arise, such as fallen tree limbs. The defendant has observed landscapers crossing over his lots, and has interacted with them.

7. The plaintiff and her predecessors in title have consistently passed over that portion of the defendant’s lots shaded in yellow on Exhibit 6 (the path). Customers of the defendant’s commercial establishment use his front lot for parking, but there is no parking in the area of the path itself.

8. The plaintiff has never sought nor received permission from the defendant or his predecessors in title to pass over the defendant’s lots to get to her rear lot. In April, 2005, the defendant served the plaintiff with a “no trespass” notice, prohibiting her from passing over his property. The plaintiff has continued to pass over the defendant’s lots in order to access her rear lot for maintenance, despite the “no trespass” notice.

9. Rulings of Law: The plaintiff maintains that she has the right to use the defendant’s lots in order to access her rear lot, by operation of adverse possession or a prescriptive easement. The defendant denies the plaintiff’s right to use the path, and has counterclaimed for damages caused by her unauthorized use of his property.

10. Adverse Possession: “Title by adverse possession can be

acquired only by proof of nonpermissive use which is actual, open, notorious, exclusive and adverse for twenty years.”

Ryan v. Stavros, 348 Mass. 251, 262 citing Holmes v. Johnson, 324 Mass. 450, 453. The plaintiff has neither alleged not proved that her use of the path is exclusive, and the defendant is

 

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therefore entitled to a ruling in his favor on the adverse possession claim.

11. Prescriptive Easement: “As codified in G. L. c. 187, s. 2, a claimant may be entitled to a prescriptive easement respecting the land of another if it is shown by clear proof of a use of the land in a manner that has been (a) open, (b) notorious, (c) adverse to the owner, and (d) continuous or uninterrupted over a period of no less than twenty years.” Boothroyd v. Bogart; 68 Mass. App. Ct. 40, 43-44 (2007). The adverse use need not be exclusive in order to establish a prescriptive easement

12. “To be `open,’ the use must be without attempted concealment… For a use to be found notorious, it must be sufficiently pronounced so as to be made known, directly or indirectly, to the landowner if he or she maintained a reasonable degree of supervision over the property.” Id. The plaintiff’s use of the path has been open and notorious. The route she and her landscapers take over the defendant’s lots is in clear view. She uses the gate which is clearly marked and obvious to the defendant and his predecessors in title. She and her landscapers use the path during daytime hours, with sufficient frequency to be obvious to the defendant, who has in fact observed their use. In addition, the plaintiff has used the path, as described above, consistently since at least 1977. Her use has not been “intermittent and disjointed in time.” Id. at 45.

13. The defendant argues two points which call for response by the court. First, the defendant argues that a prescriptive easement over his property is unnecessary, as the plaintiff can access her rear lot from her front lot, without coming on to his property. This argument is unavailing. While the evidence establishes that the plaintiff can get to her rear lot from her front lot, and can negotiate access for a standard lawn mower in that way, the physical lay-out of her property does not allow for trucks or other heavy equipment to access the rear lot directly from

 

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the front lot. In addition, the plaintiff claims an easement by prescription, as to which she need not prove necessity.

14. The defendant’s second point is that the creation of a prescriptive easement over his property benefitting the plaintiff would “destroy” the defendant’s ability to use his back lot for parking, and thereby compromise the economic viability of his commercial operation. There is no basis in the record, however, to support the defendant’s argument in this regard. The plaintiff seeks a prescriptive easement specifically so as to continue that which she has done historically, namely, on occasion, to pass quickly over the defendant’s lots with trucks or other heavy equipment, in order to access the gate at her rear lot and get onto

her own property. There is no evidence that the plaintiff has ever loitered on the defendant’s lots in a way that has interfered with his other actual or intended uses of the property, or that she has any intention to do so in the future. And, as with the necessity argument, above, the burden which a prescriptive easement imposes upon the servient estate is not a factor to be considered in determining whether such an easement exists, other than to the extent that the proponent’s use must be adverse.

15. Finally, the defendant’s service of the “no trespass” order did not defeat the plaintiffs claim of a prescriptive easement, for two reasons. By the time the defendant served the “no trespass” order, the plaintiff had already been using his property for more than twenty years, such that the prescriptive easement had already attached. In addition, service of a “no trespass” order is not the procedure contemplated by G.L. c. 187, º3 to defeat the creation of a prescriptive easement.

16. Order for Entry of Judgment: Based upon the foregoing, judgment shall enter in favor of

 

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the plaintiff establishing her prescriptive easement over the defendant’s property.

So entered this 28th day of February, 2008.

 

 

 

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End Of Decision

 

HOUSING COURT

EARL F. BAGG and CINDY A. DESORCY v. TOWN OF SOUTH HADLEY

 

 

WESTERN DIVISION

 

Docket # 08-CV-00108

Parties: EARL F. BAGG and CINDY A. DESORCY v. TOWN OF SOUTH HADLEY

Judge: /s/Dina E. Fein

Associate Justice

Date: April, 2008

RULING AND ORDER ON DEFENDANT’S MOTION TO DISMISS

 

The above-captioned matter is before the court on the defendant Town of South Hadley’s (“Town’s”) motion to dismiss. Upon consideration of the parties’ arguments and written submissions, and for the reasons set forth herein. the motion is allowed.

1. Background: Construing the pleadings and all reasonable inferences therefrom in favor of the plaintiffs, as is required when evaluating a motion to dismiss, the following facts are undisputed. The plaintiffs own a parcel of land in South Hadley, which parcel has approximately 17.33 feet of frontage or frontage access on Ferry Street. In or around April, 2006, the plaintiffs commenced the process of applying for a building permit to construct a single family home on the subject lot. Various Town departments, including the Planning Board approved the application. In or around September, 2007, the plaintiffs again commenced the process of applying for a building permit. On September 6, 2007, a representative of the Planning Board

 

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denied the second application on the grounds that the lot “does not have frontage on Ferry Street.” The complaint in this case was filed on January 28, 2008.

3. Discussion: Despite the artful attempts of their attorney to frame it otherwise, this case is a zoning appeal under G.L. c. 40A, pursuant to which the plaintiffs seek to overturn the Planning Board’s denial of their application for a building permit. As such, the case must be dismissed on procedural grounds. If the Planning Board’s denial of the second application did not constitute a final decision subject to appeal, in that the Building Commissioner never denied the permit application, then the matter was not ripe for review by any body, including this court. If the Planning Board’s denial of the second application did constitute a final decision subject to appeal, under the Town’s Zoning By-law and Chapter 40A that appeal should have been perfected within thirty days to the Board of Appeals, and exhaustion of those administrative remedies is prerequisite to judicial review. And even if the plaintiffs were exempt in some way from exhausting their administrative remedies, a conclusion I see no basis for reaching, this case would not have been brought timely, as it was filed far beyond the twenty day deadline for requesting judicial review under G.L. c. 40A, s. 17.

4. ORDER: For the reasons set forth herein. the defendant’s motion to dismiss is allowed.

 

So entered this______day of April, 2008.

 

 

 

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End Of Decision

 

HOUSING COURT

MICHAEL DEEP, Plaintiff v. JEAN DRUM, Defendant

 

WESTERN DIVISION

 

Docket # DOCKET NO. 08-SP-1568

Parties: MICHAEL DEEP, Plaintiff v. JEAN DRUM, Defendant

Judge: /s/Dina E. Fein

First Justice

Date: July, 2008

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned matter came before the court for trial on July 16, 2008, after which the following findings of fact and rulings of law shall enter, as provided for under Mass. R. Civ. P. 52(a):

1. The plaintiff (“landlord”) owns a mobile home park known as Victoria Villa MHP, in Dalton, Massachusetts. The defendant (“tenant”) rents a lot at the mobile home park, located at 6 Park Terrace (“the premises”). The contract rent for the premises is $210 per month. On or around March 13, 2008 the landlord served and the tenant received a notice terminating the tenancy. The notice indicated that rent was unpaid for the months of September, 2006 to March, 2008, for a total of $6,996.06, including late fees.[1] The tenant vacated the premises in June, 2008, although her mobile home remains on the lot, and the tenant did not pay the lot rent for

 

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[1] The amount claimed on the notice to quit does not correspond to the period of time for which it was claimed. Unpaid rent of $210 per month for 19 months would total $3,990. No defense was raised, however, based on the notice to quit.

 

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July, 2008.

2. In defense to the landlord’s case, the tenant denies that she owes the amount of rent claimed, contends that late charges were improperly imposed, and argues that prior litigation between the parties precludes the landlord from claiming a portion of the rent he seeks herein. These issue are intertwined with one another, and will therefore be addressed collectively below.

3. On or around October 15, 1998, the landlord brought a small claims action against the tenant claiming “back rent due plus amounts that become due and owing on or before the hearing date.” According to the landlord’s records, the tenant’s rent arrears as of filing the small claims complaint were in excess of $2,000. Nevertheless, the landlord compromised his claim as of that date, apparently in order to avail himself of small claims jurisdiction. After trial on February 1, 1999, a judgment entered in favor of the landlord for $2,000, plus costs. The small claims judgment is res judicata on the issue of rent arrears through February 1, 1999. The landlord may not relitigate that issue in this case; he may not now seek to recover for arrears as of February 1, 1999 in excess of $2,000. The landlord’s sole remedy with respect to rent arrears through February 1, 1999 is to enforce the judgment he obtained at the time.

4. After the judgment entered against the tenant in February, 1999 (and after the landlord apparently also initiated a summary process case against her) the landlord agreed to forbear collection on that judgment in exchange for obtaining a lien on the tenant’s anticipated worker’s compensation settlement.[2] The worker’s compensation case is still pending, and the tenant has acknowledged her obligation to satisfy the small claims judgment out of proceeds in that case.

 

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[2] Although the landlord did not sign the “assignment” documents as requested by the tenant’s attorney, it is clear that the parties had reached this agreement in principle.

 

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5. According to the landlord’s records, the tenant has paid her rent within 30 days of the due date for every month since February 1, 1999, except October, 2003, for which no rent payment is recorded. Notwithstanding this payment history, the tenant has been charged a late fee of $25 for every month since February, 1999; 113 late fees totaling $2,825.[3] This is manifestly unfair. Having obtained a

judgment against the tenant in February, 1999, and having secured the benefits of that judgment, including the potential for post judgment interest, the landlord may not continue to assess late fees for years thereafter, throughout which the tenant paid her rent timely (with one exception).

6. A second issue is presented by the tenant’s failure to pay rent for October, 2003. As of that date, the landlord’s records reflect considerable rent arrears. For the reasons set forth above, however, those records are incorrect. Prior to October, 2003, the tenant was current with her rent: a prior period of arrears through February, 1999 had been reduced to judgment; and all rent since February, 1999 had been paid. The landlord was justified in assessing a late fee when the tenant failed to pay the October, 2003 rent within thirty days of its due date. Thereafter, however, he continued to treat the tenant’s rent as overdue, notwithstanding that payments were timely made for all of the intervening months until July, 2008, and assessed late fees for each month, for a total in late fees assessed since October, 2003 of $1,425.

7. The landlord’s system of accounting for payments violates 940 CMR 10.03(2)(1), which makes it unlawful for the operator of a manufactured home community “to impose any interest or other monetary penalty for late rent, except pursuant to an occupancy agreement and in an

 

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[3] Although the landlord’s payment records in evidence only go through February, 2008, he testified as to rental payments since then, and I am inferring that he continued to assess late fees, as he had in the past.

 

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amount reasonably intended to compensate the operator for the delay in payment, and provided that no such interest or penalty may be charged until payment is 30 days overdue.” The landlord did not place the parties’ occupancy agreement in evidence. Even assuming, however, that it provides for assessment of a late fee, generating total late fees of $1,425 as a result of the failure to pay $210 in October, 2003 is inherently unreasonable; it bears no relationship to any conceivable rate of return on the missed $210 payment nor is there any evidence of administrative costs which would justify amassing such an inflated total.

8. Based upon the foregoing, it is clear that the rent claimed by the landlord in this case includes three substantial categories which he may not recover: the rent arrears through February, 1999, as to which the landlord has a judgment which he may take proper steps to satisfy; 56 late fees totaling $1,400 between February, 1999 and October, 2003, during which period rent was paid timely; and 56 late fees totaling $1,400 for November, 2003 through July, 2008 during which period rent was paid timely. The landlord is entitled to an award for rent which was not paid in October, 2003 ($210), a late fee for rent unpaid in October, 2003 ($25), and unpaid rent for July, 2008 ($210). Nothing in this ruling deprives the landlord of whatever rights he may have with respect to the small claims judgment he recovered in February, 1999.

9. ORDER: Judgment shall enter in favor of the plaintiff landlord

for possession and $445.

 

 

 

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End Of Decision

 

HOUSING COURT

RUSSELL B. HATCH and SARAH HATCH, Plaintiffs v. CAROLYN CLARK, o/k/a LYN CLARK, o/k/a LYN CANCELLIERI, DENNIS CANCELLIERI, GEORGE L. TYUS IV, JANICE TYUS, EAST COAST CAPITAL CORP., WORLD WIDE DEBT SOLUTIONS, LLC, OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY, INC., ALEXANDER VILLAR, ADVANCED TITLE ESCROW LLC, and FREEDOM INVESTMENT AND LOAN, Defendant

 

Western Division

 

Docket # No. 07-CV-1719

Parties: RUSSELL B. HATCH and SARAH HATCH, Plaintiffs v. CAROLYN CLARK, o/k/a LYN CLARK, o/k/a LYN CANCELLIERI, DENNIS CANCELLIERI, GEORGE L. TYUS IV, JANICE TYUS, EAST COAST CAPITAL CORP., WORLD WIDE DEBT SOLUTIONS, LLC, OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY, INC., ALEXANDER VILLAR, ADVANCED TITLE ESCROW LLC, and FREEDOM INVESTMENT AND LOAN, Defendant

Judge: /s/Dina E. Fein

First Justice

Date: July 3, 2008

RULINGS AND ORDER ON DEFENDANT EAST COAST CAPITAL CORPORATION’S MOTION TO DISMISS

 

1. BACKGROUND: The action arises a real estate transaction between the plaintiff homeowners and several of the defendants. The plaintiffs seek damages against the defendant East Coast Capital Corporation (East Coast) for fraud (Count IV) and violation of G.L. c. 93A (Count V), based on the alleged activities of its agents, servants, or employees. East Coast moves to dismiss these claims pursuant to 12(b)(1) and 12(b)(6). After hearing, for which the plaintiffs and East Coast were present through counsel, the following order is to enter:

2. FACTUAL ALLEGATIONS: The relevant facts as alleged in the plaintiff’s

 

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complaint are as follows[1]: In 2003, the plaintiffs filed for Chapter 13 Bankruptcy protection. In October, 2004, the plaintiffs were contacted by the defendant Dennis Cancellieri, (Cancellieri) on behalf of World Wide Debt Solutions (World Wide) regarding refinancing of the plaintiffs’ home. After some discussion, Cancellieri arranged for the plaintiffs to be contacted by East Coast to process a Uniform Residential Loan Application. The East Coast interview was completed by defendant Lyn Clark (Clark), Cancellieri’s wife. The plaintiffs subsequently received a letter from Cancellieri, on East Coast letter-head, in which he identified himself as the Senior Vice President of East Coast, and enclosed mortgage application documents.

3. Thereafter, it is alleged that the defendant George L. Tyus IV of World Wide, solicited and obtained an agreement with the plaintiffs whereby they granted World Wide exclusive authority to

deal with their Bankruptcy Trustee and all creditors. It is alleged that Cancellieri then presented the plaintiffs with a plan to pay off all of their creditors and save their home from foreclosure. Under the arrangement, the plaintiffs would convey their home to Clark and Janice Tyus (Tyus), the wife of George Tyus, for $265,000, but remain in possession of the property. The plaintiffs, Clark and Tyus executed a purchase and sale agreement to that effect on or around November 26, 2004, along with an agreement to re-purchase the property within two years for $295,000.

4. Allegedly on behalf of the plaintiffs, World Wide filed an application with the Bankruptcy Court to retain a real estate broker “to market and procure buyers” for the subject

 

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[1] These facts are gleaned from the allegations of the complaint, as is required when ruling on a motion to dismiss. Documents related the plaintiffs’ bankruptcy case are also properly considered, as that case is referenced in the complaint.

 

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property. The specific real estate broker identified was Cancellieri, who supported the application with an affidavit and mortgage broker license issued to East Coast. Cancelllieri’s affidavit also characterized himself as a “disinterested person.” The Bankruptcy court ultimately allowed the application, and the property was sold to Clark and Tyus under the terms of their preexisting purchase and sale agreement.

5. Following the sale, East Coast procured two mortgages on the property for Clark and Tyus in favor of the defendant Freemont Investment and Loan (Freemont), in the amounts of $238,500 and $13,250, respectively. It is alleged that East Coast benefitted from that transaction by receiving fees in the amount of $4,327.50 from the proceeds, along with a premium of $2,385 paid by the lender.

6. Under the plan allegedly structured by Cancellieri, the plaintiffs were to make the two monthly mortgage payments to Clark and Tyus, who would, in turn, make the payments directly to Freemont. Although the plaintiffs made the required payments to Clark and Tyus, both mortgages fell into arrears, the first mortgage was eventually foreclosed upon, and Freemont is now seeking to evict the plaintiffs.

7. STANDARD OF REVIEW: In deciding a motion brought pursuant to 12(b)(6), the court must accept as true the complaint’s well-pleaded factual allegations and any reasonable inferences in the plaintiffs’ favor that may be drawn from those allegations. Fairneny v. Savogran Co., 422 Mass. 460, 470, 884 N.E.2d 5 (1996). A complaint may not be dismissed for failure to state a claim for which relief may be granted unless “on the face of the complaint, it is unmistakable that the plaintiff can prove no facts in support of a tenable legal claim.” Disend v. MeadowbrookSchool, 33 Mass.App.Ct 674, 675, 604 N.E.2d 54 (1992).

 

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“[A] complaint is sufficient ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which

would entitle him to relief.’ Nader v. Citron, 372 Mass. 96, 98 360 N.E.2d 870 (1977), quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99 (1957).

8. DISCUSSION: Vicarious Liability. In Counts IV and V, the plaintiffs allege liability against East Coast based on the activities of Cancellieri and Clark as East Coast’s agents, servants, or employees. East Coast asserts that it is not liable for the acts of Cancellieri or Clark, as neither were employees or agents of East Coast. The allegations of the complaint, however, and the documentation which identified Canellieri as a Vice President of East Coast and Clark as an interviewer for East Coast, at a minimum raise an inference that they were so employed, sufficient to defeat a motion to dismiss arguing the contrary.

9. In the alternative, East Coast argues that even if Cancellieri and Clark are construed to be its agents or employees, they were not acting within the scope of their employment when the alleged fraud was committed. An employer may be held vicariously liable for the intentional torts of its employee “if the tortious act or acts were committed within the scope of employment.” Worcester Ins. Co. v. Fells Acres Day School, Inc., 408 Mass 393, 404 (1990) (citations omitted). The “conduct of an agent is within the scope of employment if it is of the kind he is employed to perform . . .; if it occurs substantially within the authorized time and space limits . . . and it is motivated, at least in part, by a purpose to serve the employer …” Worcester Ins. Co. v. Fells Acres Day School, Inc, supra (citations omitted).

10. Under the facts as alleged, a trier of fact would be justified in concluding that the alleged