Housing Court Cases – Judge Robert Fields, Western Division

by Elmir Simov on June 11, 2012

HOUSING COURT

CITY OF WESTFIELD v. FRANK R. SAIA, et al.

 

HOUSING COURT WESTERN DIVISION

 

 

Docket # 00-CV-00501

 

Parties: CITY OF WESTFIELD v. FRANK R. SAIA, et al.

 

Judge: /s/ Robert G. Fields

Clerk Magistrate

 

Date: February 16, 2007

 

JUDGMENT

This action came on for cross motions for summary judgment before the Court sitting without a jury, WILLIAM H. ABRASHKIN, J., presiding, and the issues having been duly tried and findings having been duly rendered, it is hereby ORDERED and ADJUDGED:

 

Judgment hereby enters for the City of Westfield on all of its claims against the defendants. Although counterclaims asserted by the defendants for money damages remian to be adjudicated in due course, considerations of public health and safety require that the portion of the dispute between the parties by this order be made final at this time. Final judgment is to enter as follows: (1) a permanent injunction is to enter prohibiting the defendants from performing any work of any description whatsoever on the subject property located at 136 City View Road at any time and for any reason, except for such incidental work as may be ordered or authorized by this court for purposes such as protection of public safety; (2) a declaratory judgment is to enter declaring the continued presence of the structures at the subject premises in violation of the law; (3) a permanent injunction is to enter ordering the defendants to remove all such structures in conformity with their respective interests and in compliance with requirements of the state building code and instructions of the Chief Housing Specialist of this court; (4) a declaratory judgment is to enter that unit #4 is subject to all the conditions and requirements applicable to the other units in the development, including demolition; and (5) a permanent injunction is to enter prohibiting occupancy of any of the units, including unit #4.

 

 

 

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ENTERED AND NOTICE SENT UNDER R.58(a), 77(d), 79(a), 02/16/07, rgf

 

ECMS: JDMT-CV

 

 

 

End Of Decision

HOUSING COURT

POWDERMILL VILLAGE APTS, Plaintiff, v. EMMA CABALLERO, Defendant.

WESTERN DIVISION

 

Docket # No. 08-SP-4329

Parties: POWDERMILL VILLAGE APTS, Plaintiff, v. EMMA CABALLERO, Defendant.

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

Date: February , 2009

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

After hearing on February 3, 2009, on the plaintiff’s motion for entry of judgment[1], at which both parties appeared, the following findings of fact and rulings of law are to enter:

1. Background: The defendant (tenant) is a ten-year resident of Powdermill Village Apartments (landlord), an apartment complex in Westfield, Massachusetts. This summary process matter was brought by the landlord alleging that the tenant had engaged in behavior that violated various terms of her lease agreement. The parties appeared on the original trial date on December 18, 2008 and entered into a written agreement in which the tenant agreed to not violate the terms of the lease cited in her notice to quit and to allow access for an inspection of her apartment by the court’s Housing Specialist Department. On January 16, 2008 the landlord served and filed a Motion for Issuance of the Execution (herein treated as a motion for entry of judgment), alleging that the tenant had failed to comply with the agreement of the parties.

 

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[1] The hearing was marked up as a motion for issuance of the

execution but was treated as a motion for entry of judgment as no judgment had entered by agreement of the parties dated December 18, 2009.

 

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2. Engaging in acts that cause or threaten to cause physical harm to others (Lease paragraph F-13): More specifically, the landlord alleges that the tenant made threats of physical harm towards the property manager, Tracy Lynch, on January 12, 2009. Three witnesses testified on behalf of the landlord. Each was examined directly by the landlord’s counsel and cross examined by the tenant, pro se. Two of the witnesses, both employees of the landlord, testified credibly about incidents that occurred on January 12, 2009. On that date, the tenant, upset that she had to move her car from the parking lot due to a new snow plowing policy, screamed profanities at the property manager, Tracy Lynch, while the two were in the parking lot. The tenant screamed at Ms. Lynch calling her a “fuckin’ bitch” in a very menacing manner. Later that day, the tenant went into the landlord’s rental office and was angry and in a raised and aggressive tone told the landlord’s administrative assistant, Deborah Kelleher, that “Tracy Lynch is going to make me hurt her,” and that the tenant “was in the Army and she (Ms. Lynch) picked the wrong woman to mess with.” At the hearing, the tenant did not dispute these accounts but rather chose to re-frame them as “blowing off steam” and added that she has been a tenant for ten years without any similar incident.

3. The landlord has met its burden of proof that these acts by the tenant on January 12, 2009 violate paragraph F-13 of the lease and the court finds that such acts, as described above, reasonably cause or threaten to cause physical harm towards the property manager, Ms. Lynch. As such, the agreement of the parties filed with the court was violated and judgment shall enter for possession for the landlord.

4. This is not the end of the inquiry that courts are required to make in eviction cases. Under certain circumstances, the courts must also examine the equitable considerations at play in a particular case. Massachusetts case law disfavors forfeitures in landlord-tenant cases. See,

 

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e.g., Howard D. Johnson Company v. Madigan, 361 Mass. 454, 280 N.E.2d 689 (1972); Edward’s Fine Furniture, Inc. V. DiTullio, 356 Mass. 380, 252 N.E.2d 348 (1969); Judkins v. Charette, 255 Mass. 76, 151 N.E. 81 (1926); Atkins v. Chilson, 52 Mass. 112 (1846). In this case, the length of the tenant’s tenancy (10 years), the fact that she has children living with her in the unit, and the absence of any other instance of threatening behavior other than these most recent events[2] must be analyzed and as such, in the aggregate of circumstances, they cut in favor of imposing a stay on the issuance of the execution conditioned up the following terms:

 

a. other than in a bona fide emergency, the tenant shall not communicate with any agents of the landlord other than in writing;

 

 

b. the tenant shall conduct all business with the landlord, including paying her rent each month or filling out paperwork, through the mail, or after office hours if there is a slot in the door, or through an agent;

 

c. the tenant shall fully comply with the terms listed in the agreement dated December, 18, 2008;

 

d. the tenant shall fully comply with the terms of the lease between the parties;

 

e. if the landlord alleges that the tenant has violated the terms of this order, or of the December 18, 2008 agreement or of the lease and wishes to bring a motion for issuance of the execution in this matter, the landlord must first serve a notice on the tenant which specifies the exact nature of the alleged breach(es) (a description

 

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[2] The court notes here that the underlying eviction case did not allege that the tenant had acted in this manner but was based on allegations of other lease violations regarding her apartment and access to it, her dog, and her son.

 

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of the alleged behavior(s)), the date(s) it/they occurred, and the names of any witnesses thereto and a brief description of each witness’ anticipated testimony.[3]

 

It must be emphasized that the tenant will be strictly held to the requirements stated herein. If she fails to comply with this order, the landlord may motion the court for issuance of the execution in the manner prescribed above at any time over the next six months. The intent of this order is to provide a working protocol for communication between the parties so that the tenancy may be preserved without further incident. Either party may file a motion and mark up a hearing if it wishes to be heard on amending, or imposing additional or more specific conditions of, the stay. If neither party files anything further in this matter prior to July 31, 2009, the case will be dismissed.

 

 

 

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[3] The court points out here that the motion underlying this hearing had no description whatsoever of the nature of the alleged violation of the agreement and simply stated, “As of the date of this Motion, the Defendant has failed to comply with the terms of the Agreement.” The tenant became aware of what behavior she was being alleged to have committed only upon appearing at court for the original hearing date for the motion which was rescheduled to the date of this hearing. As such, due only to the postponement, she was fully aware at the time of this hearing. The terms in this order attempt to remedy that infirmity from reoccurring should the landlord bring a

subsequent motion for issuance of the execution.

 

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End Of Decision

 

 

HOUSING COURT

SOUTH STREET APARTMENTS REALTY TRUST, Plaintiff, v. THOMAS MOORE, Defendant.

 

Western Division

 

Docket # No. 09-SP-385

Parties: SOUTH STREET APARTMENTS REALTY TRUST, Plaintiff, v. THOMAS MOORE, Defendant.

Judge: /s/Robert Fields, Associate Justice

Date: January , 2009

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned summary process (eviction) case came before the court for trial on February 11, 2009, after which the following findings of facts and rulings of law are to enter:

1. Background: The plaintiff, South Street Apartments Realty Trust (landlord), owns a fifty-unit apartment building located on South Street, Pittsfield, where it rented apartment #300 (the premises) to the defendant, Thomas Moore (tenant) beginning on September 1, 2008 at a rental rate of $695 per month. Within the first month of the tenancy, the landlord had the tenant served with a no fault notice terminating the tenancy.[1] After the tenant did not vacate the unit after the purported termination period, the landlord commenced this summary process action.

2. The Landlord’s Claim for Possession: The landlord has established the prima facie elements of its case by assent of the tenant; specifically, that the tenant was served with a notice to quit and a summons and complaint and the parties agreed that the tenant has not paid rent for

 

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[1] The pretrial stipulation indicates that the parties were under a lease and the notice to quit was served for no fault within that lease period. As such, this would be a basis for a dismissal of this action. The lease, however, was never introduced into evidence and neither party raised this issue for the court’s consideration.

 

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November, December, 2008, and January and February, 2009, totaling $2,780[2]. The outcome of the case turns, therefore, on the tenant’s defenses and counterclaims which, in essence, allege interference with quiet enjoyment by the landlord’s property manager.

3. The Tenant’s Counterclaims: The tenant’s counterclaim, breach of quiet enjoyment, is based on alleged harassment by the property manager Bruce Smachetti and is analyzed below.

4. Interference with Quiet Enjoyment; harassment: The tenant described a pattern of behavior by the property manager which was inappropriate, unfair and unlawful. Specifically, the property manager told the tenant that he could not have his minor son stay with him nor his minor nieces and nephews visit with him. On one occasion the property manager changed the tenant’s door key but did not inform him that he was doing so and did not supply a replacement

key until the tenant contacted the property manager. On another occasion, two weeks after the tenant reported that his stove was broken, the property manager went into the tenant’s apartment without advance permission and had the stove fixed and then did not tell the tenant that it was fixed. The tenant continued to use alternate means of preparing his meals, not knowing he could use his stove. The property manager also entered the tenant’s apartment without permission on several occasions. Additionally, the property manger made the tenant prove that his car was registered to him and not to his mother. The court did not credit the property manager’s denials of these claims.

5. A landlord will be liable for interference with quiet enjoyment if he causes or authorizes acts which result in substantial injury to the tenant in the peaceful enjoyment of the demised premises. Monzaro v. McCann, 401 Mass. 880, 91 N.E.2d 769 (1988); Winchester v.

 

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[2] At the time the summons and complaint was served and filed, the tenant owed November and December, 2008 rent, totaling $1,390. The account annexed, however, indicates that use and occupancy would be sought owing through the date of the hearing. This would include January and February, 2009 bringing the total to $2,780.

 

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Obrien, 266 Mass. 33, 37 (1929). The covenant of quiet enjoyment protects the “tenant’s right to freedom from serious interference with his tenancy.” Simon v. Solomon, 385 Mass 91, 102 (1982). In the instant matter, the property manager’s behavior was clearly intended to harass and otherwise reduce the enjoyment and usability of the tenant’s apartment and, in fact, had that exact result on the tenant. For the foregoing reasons, the tenant is awarded damages equaling three months’ rent for his claim of breach of quiet enjoyment, totaling ($695 X 3) $2,085.

6. 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 $695 plus costs. This represent $2,780 (landlord’s rent claim) – $2,085 (tenant’s damages). If he 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 $695 plus costs at the expiration of the statutory ten day period.

 

 

 

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End Of Decision

 

HOUSING COURT

CITY OF SPRINGFIELD CODE ENFORCEMENT DEPARTMENT HOUSING DIVISION, Plaintiff v. UNION ORLEANS REALTY TRUST, RUSSEL GIBSON, EDDIE LONG, DOROTHY HAWKINS, ALFRED HAWKINS, AUREA DINQUIS, DIONISIO CRUZ, DAISY LEON, BRANDON WILLIAMSON, SARAYA WISE, ELIO SANTIAGO, CARLA TAPIA, HECTOR MARQUEZ, ILEANA TANCO, and JOSE MEDINA

 

Western Division

 

Docket # Nos. 08-CV-1988, 08-CV-1581, 08-CV-2010

Parties: CITY OF SPRINGFIELD CODE ENFORCEMENT DEPARTMENT HOUSING DIVISION, Plaintiff v. UNION ORLEANS REALTY TRUST, RUSSEL GIBSON, EDDIE LONG, DOROTHY HAWKINS, ALFRED HAWKINS, AUREA DINQUIS, DIONISIO CRUZ, DAISY LEON, BRANDON WILLIAMSON, SARAYA WISE, ELIO SANTIAGO, CARLA TAPIA, HECTOR MARQUEZ, ILEANA TANCO, and JOSE MEDINA

Judge: /s/Robert G. Fields Associate Justice

Date: February , 2009

AMENDED ORDER ON PETITION TO ENFORCE THE STATE SANITARY CODE AND FOR APPOINTMENT OF A RECEIVER FOR 75 ORLEANS STREET AND 529 UNION STREET, SPRINGFIELD

 

Pursuant to the general equity powers of this court and G.L. Chapter 111, Sections 127F-I, following hearings on January 26, 2009 and February 11, 2009, the court hereby finds with respect to 75 Orleans Street and 529 Union Street, Springfield, Massachusetts (“Properties”):

1. Background: On or about November 20, 2008, plaintiff City of Springfield Code Enforcement Department (“Petitioner”) filed an action in regards to 529 Union Street against the defendant owner Union Orleans Realty Trust and its trustee Russel Gibson (“Respondents”), as well as a number of the occupants. A subsequent action was filed against the Respondents with respect to 75 Orleans Street, as well as the occupants of that dwelling. In both actions, the

 

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Petitioner sought equitable relief to address a myriad of serious State Sanitary Code (“Code”) violations found at the Properties.[1]

On December 1, 2008, the parties entered into an agreement with respect to 75 Orleans Street, whereby the occupants agreed to vacate the premises. At review on December 12, 2008, the Respondents agreed, inter alia, that they would enter into contracts for remediation of 75 Orleans Street, no later than December 29, 2008. Additionally, the Respondents agreed that they would provide the Petitioner with a written rehabilitation plan for 529 Union Street. There is no dispute that the Respondents failed to comply with either agreement.

At hearing on January 26, 2008, the court allowed the Petitioner’s assented-to motion to appoint a receiver for 75 Orleans Street, and an Order appointing Atlas Property Management, Inc. receiver for that property was issued on February 2, 2009. On February 11, 2009, the Petitioner’s assented-to motion to amend the receivership order to include 529 Union Street was allowed.

2. Description and Conditions of the Properties: The property located at 75 Orleans Street consists of eight (8) vacant units. Inspections of that property were performed by the Petitioner on or about November 17, 2008, November 20, 2008, and December 20, 2008. During the inspections, the Petitioner found the existence of serious conditions which violate the Code’s standards of fitness for human habitation. These include, inter alia, lack of running water, defective or missing smoke detectors, insufficient lighting, exposed

wiring, trash located

 

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[1] Over the past two years, the Respondents have been cited by the Petitioner numerous time for Code violations at the Properties, many of which resulted in civil enforcement actions. See e.g. SHD v. Union Orleans Realty Trust, 07-CV-141.

 

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throughout the interior and exterior of the buildings, unsecured entranceways, and broken or missing windows

The property located 529 Union Street consists of eight (8) vacant units. Inspections of that property were performed by the Petitioner on or about January 4, 2008, January 22, 2008, February 27, 2008, May 22, 2008, October 22, 2008, and November 19, 2008. During those inspections, the Petitioner found serious Code violations including, inter alia, lack of running water, defective or missing smoke detectors, insufficient lighting, electrical violations, unsecured doors, and missing or broken windows.[2]

The Respondents have demonstrated an unwillingness or inability to correct these violations. To date, the majority of the identified violations remain outstanding at both Properties.

3. Available remedies. G.L. c. 111, s.127I authorizes appointment of a receiver where violations of the Code will not be promptly remedied unless a receiver is appointed, and where such appointment is in the best interest of the occupants. The Respondents have failed to manage and maintain the Properties in compliance with the Code, and the Code violations will not be promptly remedied unless a receiver is appointed. The Respondents’ failure to manage and maintain the Properties, and failure to promptly come into compliance with the Code, endangers or materially impairs the health and safety of the current and future occupants of the

 

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[2] An exhaustive list of the outstanding violations at the Properties can be found in the inspection reports submitted to the court, attached to the Petitioner’s complaints at Exhibit A, as well as the View Report for 75 Orleans Street completed by the Assistant Chief Housing Specialist on January 5, 2008.

 

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Properties, as well as the surrounding community. Appointment of a Receiver is in the best interest of all residents of the Properties and of public safety.

THEREFORE, following hearing on January 26, 2009 and February 11, 2009, and with notice to the mortgagees and lienors, the court hereby ORDERS as follows:

4. Receiver: Atlas Property Management, Inc. (“Receiver”) is hereby appointed as Receiver of the subject Properties. At any time, any party to these proceedings or the Housing Specialist Department may request a review or modification of this appointment and the terms thereof, as set forth below. Upon completion of the necessary repairs, the Receiver shall immediately notify the court.

5. Authority and Duties of the Receiver. The authority and

duties of the Receiver shall be as follows:

(A) To employ companies, persons or agents to perform its duties hereunder.

(B) To receive and collect all rental revenues due from any tenants or occupants of the Properties as an agent of the court for and after the first rental period following the effective date of the Receiver under this paragraph:

(i) to inform all tenants and occupants from whom rent will be sought of the pertinent provisions of this order pursuant to paragraph 8 of this order; and

(ii) to account for all receipts according to the standards set forth in subparagraph 5(F), below. The Receiver shall not be authorized to raise rents without leave of court.

 

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(C) To deposit all amounts received on account of the Properties into a separate account under the control of the Receiver;

(D) To inspect the Properties to determine what “Emergency Repairs” are needed to correct violations of the Code and of applicable fire safety, electrical building, and plumbing codes existing at the Properties, and to perform or cause to be performed, if necessary such Emergency Repairs;[3]

(E) To disburse funds received by the Receiver on account of the Properties as follows, in the following order of priority:

First- To reimburse the Receiver for its actual out-of-pocket expenses incurred in his capacity as Receiver, including without limitation its reasonable legal fees, its allocable overhead and labor costs, its costs of incorporation, its costs of negotiation of the terms of this receivership and its costs of liability insurance (“Receiver Out-Of-Pocket Expenses”);

 

Second- To secure any vacant units at the Properties.

 

Third- To make emergency repairs to occupied and vacant units at the Properties.[4]

 

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[3] For purposes of this section, “Emergency Repairs” are repairs necessary to eliminate violations which materially alter the health or safety of the occupants of the Properties, or which may materially endanger or materially impair the health or safety of the occupants in the near future if corrective action is not taken.

 

[4] Any dispute regarding the priority of expenditures for emergency repairs shall be referred to the Housing Specialist, whose determination shall be binding on the parties unless modified by the court, upon motion of any affected party.

 

 

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Fourth- To pay the Receiver his fees for acting as the Receiver as set forth below:

(a) A reasonable management fee consistent with industry standards in the area; and

(b) A reasonable hourly rate consistent with industry standards for maintenance work performed by the Receiver or its agents in repairing or maintaining the Properties.[5]

 

Fifth- To make repairs, to the extent possible, of conditions which may violate the Code or applicable fire safety, electrical or building codes or ordinances, but which do not rise to the level of “Emergency Repairs” as defined above.

 

Sixth- To make payments, to the extent possible, towards any unpaid taxes, assessments, penalties or interest.

 

Seventh- To make payments, to the extent possible, due any mortgagee or lienor of record.

 

(F) The Receiver shall file a report with the court, setting forth all expenses and disbursements of the Receivership, with attached receipts, and an accounting of all funds received by the Receiver during the period covered

 

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[5] The management and maintenance fees are to be determined in the first instance by the Chief Housing Specialist, subject to review by the court upon request of the Receiver or any party

 

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by such report, including a list of all tenants residing at the Properties, together with a list of current rental amounts and the status of their rent payments to date and funds from other sources. The Receiver shall serve upon all parties a copy of this report no later than 24 hours prior to March 2, 2009, and every four (4) weeks thereafter, unless a different a different schedule is authorized by the Court. Copies shall also be sent to any mortgagees or lienors who file appearances in this action.

(G) The Receiver shall complete such documentation and perform such functions as may be necessary in order for occupants to receive public benefits and housing subsidy benefits (such as fuel assistance, food stamps, AFDC, Section 8, and the MRVP Program), provided that the Receiver’s obligations shall not exceed those customarily performed by residential landlords of low/moderate income tenants. The Receiver is hereby authorized to execute any documents necessary to be executed by the tenants’ landlord in connection with such benefits programs.

 

(H) The Receiver may rent vacant apartments already in compliance with the Code, and may repair vacant units so as to bring them in compliance with the Code.

(I) Evictions for Nonpayment of Rent. Evictions for non-payment of rent shall be governed by the Uniform Summary Process Rules,

 

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and G.L. Chapters 186 and 239, and the Receiver shall not collect rent for the period of time prior to this appointment.

(J) Evictions for Cause. The Receiver is granted the right to bring evictions for cause. The Receiver shall not have the right to terminate tenancies at will without cause, or bring summary process actions without cause.

(K) The Receiver shall be represented by counsel at all future proceedings relative to this receivership.

 

6. Bond and Inventory. The Receiver shall not be required to file a bond, nor shall the Receiver be required to file an inventory, list of encumbrances, list of creditors or any other report required to be filed by Rule 66 of the Massachusetts Rules of Civil Procedure, except as otherwise specifically provided herein.

 

7. Rent Payments.

(A) Upon determining that the units become habitable, the Receiver shall request an inspection by a representative of the Housing Specialist Department to determine the current fair rental value of the units. The Receiver is then authorized to locate suitable tenants and begin collecting rent forthwith.

Any abatement recommended by the Housing Specialist shall be binding upon the parties unless superceded by order of the court, and shall be applied as follows: to the contract rent for unsubsidized tenancies; and to

 

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the tenant’s share for subsidized tenancies. Rent payments by the occupants may be timed so as to coincide with the receipt of public benefits checks. Rent shall be mailed to or delivered to the Receiver, in accordance with the Notice to All Tenants described below.

(B) If the Receiver or any tenant believes that the amount of rent required to be paid hereunder should be increased or decreased with respect to any unit because of the conditions in or affecting that unit, the Receiver, after completing substantial repairs, or the tenant shall make a written request for modification to the Housing Specialist, with copies to all parties. Upon receipt of any such request, the Housing Specialist shall inspect the unit and associated common areas, and shall thereafter provide a recommendation to the court. Such recommendations shall be based solely upon the condition of the premises. The recommendations of the Housing Specialist shall be binding upon the parties.

 

 

8. Notice to Tenants. At such time as units at the Property become occupied, the Receiver shall complete and deliver or mail the Notice To All Tenants, attached hereto as Exhibit A, to all tenants at the Property. The Receiver shall forthwith post the notice in the affected Property in locations accessible to the public.

 

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9. Liability and Agency.

(A) The Receiver shall forthwith acquire general liability insurance in the amount of $1,000,000.00, or such other amount as is consistent with industry standards, and provide proof of coverage to the court no later than March 2, 2009. The cost of insurance shall be shall be given first priority under paragraph 5 of this Order.

(B) The Receiver shall have no responsibility whatsoever to make any advances on account of the Properties, except as approved by the court.

 

10. Right to Resign. The Receiver shall have the right to resign at any time by giving seven (7) days prior written notice to the court and to the parties. The notice of resignation shall include a copy of any rent roll and rental history the Receiver has compiled and an accounting of all funds received and disbursed during its term as Receiver. Such resignation shall be effective on the date specified in such notice, provided, that the court may require the Receiver to take such actions after the date specified if the court determines that such actions are required to protect the health or safety of the occupants and that the Receiver has the capacity to perform such functions consistent with the terms of this order. Unless otherwise ordered, on the effective date of such resignation, the Receiver shall assign any and all amounts received by it to the court or to a successor receiver.

 

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11. Priority Liens and Mortgages. In the event that the Receiver or any other interested party believe that there are insufficient funds generated from monthly revenue to prevent destruction, waste or loss of the Properties, or to address conditions which may materially endanger the health or safety of tenants and occupants, such party may schedule a hearing seeking an Order authorizing a priority lien or mortgage, under the “super-priority” provision of G.L. c. 111 s. 127I, as amended, third paragraph or under the Court’s powers at common law. See Turner v. State Wharf & Storage Co., 263 Mass. 92, 97, 160 N.E.2d. 542 (1928) (priority lien over first mortgage permitted to prevent destruction, waste or loss). The moving party shall provide notice of such hearing to all individuals and entities holding valid mortgages and liens at the time of this motion informing them of their right to appear, be heard and oppose such a motion.

 

12. Notice to Creditors. The Petitioner shall send a copy of this Order to all mortgagees and lienors of record.

 

13. Sale of the Properties. The Properties shall not be sold,

encumbered or placed under contract for sale without prior leave of the court.

 

14. The Respondents. To the extent not already completed, the Respondents shall: (i) within 48 hours of the signing of this Order, transfer to the Receiver all keys to apartments and common areas of the premises and any rent roll for all apartments at the Properties; (ii) within seven (7) days of the signing of this Order, the Respondents shall provide to the Receiver copies of all documents necessary to manage and maintain the Properties; and (iii) shall provide at least the following information:

 

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(A) Residential Units: the amount and due date of the rent; and copies of any leases or written tenancy agreements.

 

(B) Mortgages and Liens: the name and address of all mortgagees and lienors of record; the amount of the lien or mortgage.

 

(C) Insurance: the name, address, and telephone number of all insurance companies and their agents providing insurance coverage for the Properties; the amount and type of coverage; and the amount and due dates of premiums.

 

(D) Utilities: the amount of the most recent water, sewer, gas, and electric bills; the amount of any outstanding balance; and the date and amount of the last payment.

(E) Real Estate Tax: the amount of the most recent real estate tax bill; the amount of any outstanding balance; and the date and amount of the last payment.

 

(F) Contracts: copies of all warranties for prior work done, service contracts for ongoing maintenance (e.g. for extermination), and all contracts or bids for repairs.

 

(G) Other: all information relevant to any outstanding expenses relating to the Properties.

 

The Respondents shall not enter any part of the Properties without prior approval of the Receiver, the court, or a Housing Specialist.

 

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The Respondents shall not terminate any insurance coverage to the Properties without first seeking leave of this court.

 

15. Motions and Notices,. The Petitioner or any other interested parties shall have the right to request from the court, by motion and with advance notice, further orders consistent with G.L. c. 111, s. 127I, common law, or the terms of this order. In the event of emergencies, service of motions to parties on this action by facsimile transmission shall be acceptable.

 

 

16. Lis Pendens. The court requests that the Receiver prepare a memorandum of lis pendens, which shall then be filed by the Receiver at the Hampden County Registry of Deeds, so as to provide record notice of the existence of this order.

 

17. Review by Court. The foregoing order shall remain in effect until further notice of the court. The Receiver and all other affected parties shall report on the Receiver’s progress to the court on March 2, 2009 at 10:00 o’clock a.m.

 

18. Effective Date. This Receivership shall take effect nunc pro tunc on February 11, 2009 at 5 o’clock p.m.

 

 

 

cc: Jesse Cochin, Assistant Clerk Magistrate

Michael Doherty, Assistant Chief Housing Specialist

 

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End Of Decision

 

HOUSING COURT

KATTY MOREL, Plaintiff, v. CHARLENE HOLMES, Defendant.

 

Western Division

 

Docket # No. 08-SP-4871

Parties: KATTY MOREL, Plaintiff, v. CHARLENE HOLMES, Defendant.

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

Date: January , 2009

RULINGS AND ORDER ON DEFENDANT’S MOTION TO DISMISS

This matter came before the court on January 28, 2009 for hearing on the defendant’s motion to dismiss. After hearing, at which both parties were present, the following rulings and order shall enter:

1. Background: The facts underlying this motion, as set forth in the tenant’s memorandum of law, are undisputed. The defendant (tenant) resides with her four children at 60 Ionia Street, Second Floor, in Springfield, Massachusetts in a building owned by the plaintiff (landlord). The tenancy is at will and at some point in time the landlord served a notice to quit to the tenant. The notice to quit is entitled 14-Day Notice to Quit and contains language relative to several bases for the termination of the tenancy including non-payment of rent and various acts which allege cause for the termination of the tenancy. Thereafter, the landlord commenced this summary process action. The defendant filed this motion to dismiss claiming that the notice is defective in several regards as well as the fact that the case was not commenced by the landlord nor an attorney.

 

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2. The notice to quit: The tenant argues that this matter must be dismissed due to several deficiencies in the notice to quit. The court will focus solely on one of these arguments stemming from the failure of the notice to state a date upon which the tenancy is terminated or a date from which the tenant could calculate her “right to cure” period. As no evidence was provided that the tenant was

actually prejudiced by this deficiency, the question before the court is whether these errors invalidate the notice as a matter of law. For the reasons stated below, the court rules that it does so invalidate the notice and, therefore, the case is hereby dismissed.

3. The case law which analyze the sufficiency of notices to quit share a purposeful reluctance to look beyond the four corners of the notice. The standard applied in these cases is not whether in fact the tenant was mislead by the notice but whether the notice is sufficiently clear, accurate and not subject to being reasonably misunderstood. See e.g., Springfield II Investors v. Anita Marchena, Western Division Housing Court Docket No. 89-SP-1342 (Abrashkin, J.); See also, Oakes v. Monroe, 62 Mass. (8 Cush.) 282 (1851); Maguire v. Haddad, 325 Mass. 590, 91 N.E.2d 769 (1950); U-Dryvit Auto Rental Co. v. Shaw, 319 Mass. 684, 67 N.E.2d 225 (1946); Connors v. Wick, 317-Mass. 628, 59 N.E.2d 277 (1945).

4. The notice in this matter attempted to terminate a tenancy in fourteen days but failed to have a date from which to begin to count the fourteen days. Furthermore, the notice provided “right to cure” language stating that the tenant could cure by paying the rent owed within “ten days from the date of this notice” but, again, with no starting date it undermines one’s ability to determine by which date a cure can be achieved. Either one of these terms has, on it face, a “tendency to deceive” the tenant. See, Leardi v. Brown, 394 Mass. 156, 474 N.E.2d 1094 (1985); Moreover, the confusing language renders the notice fatally defective”. See, Oakes, supra.

5. Conclusion: Because the court is persuaded by this first among several bases asserted

 

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by the tenant in its motion to dismiss, it does not need to reach any of the others. Based on the foregoing, this summary process case is hereby dismissed.[1]

 

 

 

cc: Karen Huntoon, Assistant Clerk Magistrate

 

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[1] Though the tenant filed counterclaims which could be severed and transferred to the civil docket, the tenant specifically requested in her memorandum of law that the summary process matter be dismissed in its entirety. Additionally, the two motions filed by the landlord are hereby denied due to being moot.

 

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End Of Decision

 

HOUSING COURT

LANREB REALTY LLC, Plaintiff, v. MARITZA ESTRADA, Defendant.

 

Western Division

 

Docket # No. 08-SP-4862

Parties: LANREB REALTY LLC, Plaintiff, v. MARITZA ESTRADA, Defendant.

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

Date: January , 2009

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned summary process (eviction) case[1] came before the court for trial on January 13, 2009, after which the following findings of fact and rulings of law are to enter:

1. Background: The plaintiff, Lanreb Realty LLC (landlord), owns a three family property located at 79 Keith Street, Springfield, where it rented the 3`d floor apartment (the premises) to the defendant, Maritza Estrada (tenant) beginning on April 1, 2009 at a rental rate of $850 per month.

2. The Landlord’s Claim for Possession: The landlord has established much of its prima facie elements of its case other than the amount of rent that it claims is outstanding. Specifically, the landlord claims that $3,330 is owed through January, 2009. The court finds, however, based on a move-in date of April 1, 2008 and the figures recited by the landlord in his trial testimony,

 

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[1] The consolidated civil code enforcement action also came before the court this day for review and an agreement signed by all of the parties (including the City of Springfield Code Enforcement Department) was filed regarding a schedule of needed repairs.

 

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that the outstanding rent through January, 2009 is $3,180[2]. The outcome of the case turns, therefore, on the tenant’s defenses and counterclaims which, in essence, allege interference with quiet enjoyment and breach of the warranty of habitability. The court will address each of these claims in turn.

2. The Tenant’s Counterclaims: The tenant raises two counterclaims: breach of quiet enjoyment based on failure to provide a functioning heating system and provide a functioning gas piping system for gas service; and a breach of the warranty of habitability as a result of other substandard conditions at the premises.

3. Interference with Quiet Enjoyment: The landlord failed to remedy the problem of insufficient heat after being notified of the problem from both the tenant and the city’s code enforcement department. This failure to properly make repairs to the heating system after being made aware of the 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 in accordance with G.L. c.186, s.14. Not having proved actual damages, the tenant is awarded three months’ rent, or $2,550.[3]

4. Conditions: I credit the tenant’s testimony and the finding of the code enforcement department that there have been missing and broken or missing windows, a collapsed ceiling, and

 

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[2] The court credits the tenant’s testimony that though she wanted to take occupancy by March 1, 2008 the apartment was not ready and she moved in on April 1, 2008. The landlord’s testimony regarding rent payments received is as follows and pertain to 2008: April, $850 (paid in March); May, $850; June, $750; July, $240; August, $850; September, $790; October, $470; November, $480; December, $0; January, 2009, $0.

 

 

[3] The tenant also testified that she has no hot water due to the gas company’s termination of service to the entire building. The landlord argued that the lack of gas service is due to the tenant’s alleged theft of gas service. There is insufficient evidence upon which the court can rule on that part of the tenant’s claim seeking damages arising out of the lack of gas service. The restoration of gas service is a subject in the ongoing code enforcement action.

 

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a clogged sink for the duration of the tenancy, all which constitute 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. These 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 (up to Code), 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 was reduced by 10%, on average, as a result of these conditions of disrepair over the entire tenancy (ten months). The tenant’s damages for the landlord’s breach of the warranty of habitability are therefore $850 (contract rent) x 10% – $85 X 10 months (through January, 2009) = $850.

6. Order for Entry of Judgment: Based on the foregoing, judgment shall enter in favor of the defendant tenant for possession and damages in the amount of $220 (award to the tenant of $3,400 minus the outstanding rent of $3,180). At the election of the tenant, this sum may be applied towards future rent, at the rate of $850 per month. There shall be no court costs assessed against either party at this time.

 

 

 

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End Of Decision

 

HOUSING COURT

RICARDO RODRIGUEZ, Plaintiff, v. MARIA COTTO and RENE RIVERA, Defendants.

 

Western Division

 

Docket # No. 09-CV-9

Parties: RICARDO RODRIGUEZ, Plaintiff, v. MARIA COTTO and RENE RIVERA, Defendants.

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

Date: February , 2009

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned matter came before the court on February 24, 2009, for hearing on the plaintiff’s complaint for civil contempt, at which time the plaintiff (“Mr. Rodriguez”) and the defendant (“Ms. Cotto”) both appeared and the co-defendant, Rene Rivera did not appear. Upon consideration of the evidence, the following findings of fact and rulings of law shall enter:

1. Findings of Fact: On January 21, 2009, the court entered an order prohibiting the parties from having any contact whatsoever with one another except in the event of a bona fide emergency. On February 4, 2009, Ms. Cotto yelled obscenities and made otherwise aggressive statements about, and towards, Mr. Rodriguez from within her own apartment.[1] Due to the structure of the building, these statements could be easily heard by Mr. Rodriguez and his minor son, Christian. Ms. Cotto was fully aware that Mr. Rodriguez could hear what she was saying at

 

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[1] Mr. Rodriguez captured Ms. Cotto’s February 4, 2009, comments on a recording device while sitting in his 3`d floor apartment. During the hearing, Ms. Cotto said that the court could listen to the recording, even after the court made it clear that it would not listen to the recording if Ms. Cotto did not want the recording to be played.

 

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the time.

2. Ruling of Law: On these facts as found above, the court concludes and rules that Ms. Cotto has disobeyed a clear and unequivocal order of this court, without justification. The court therefore finds Ms. Cotto in contempt of court.

3. Order for Entry of Judgment: Judgment shall enter in favor of the plaintiff, Ricardo Rodriguez, on the complaint for contempt. Ms. Cotto assured the court at the hearing that she will no longer make statements directed at Mr. Rodriguez even from within her own apartment. The court so orders what Ms. Cotto has already committed to: She shall not direct comments towards Mr. Rodriguez even from within her apartment or anywhere when it is evident that Mr. Rodriguez can hear what she is saying. The court shall not order any further sanction at this time but may do so if further contempt proceedings are brought and Ms. Cotto is found again by the court to be in contempt. Such sanctions may include a fine or removal from the premises.

 

 

 

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End Of Decision

 

HOUSING COURT

HILARY KNIGHT, Plaintiff, v. ROSAMOND FINLEY, DIANE VERHEYEN and HAP HOUSING, INC, Defendants.

 

Western Division

 

Docket # No. 08-CV-1810

Parties: HILARY KNIGHT, Plaintiff, v. ROSAMOND FINLEY, DIANE VERHEYEN and HAP HOUSING, INC, Defendants.

Judge: /s/Robert Fields, Associate Justice

Date: February , 2009

ORDER

After hearing on February 9, 2009 on the plaintiff’s motion for injunctive relief at which both parties appeared, the following order is to enter:

1. Based on the evidence introduced at the hearing, including documentary and testimonial evidence, the motion is hereby DENIED without prejudice.

 

2. The basis for the denial is that the plaintiff failed to provide sufficient evidence upon which the court could determine that she has a likelihood of success on the merits.

 

3. Though the plaintiff may be able to provide sufficient evidence at the trial on the merits in this matter, there was not sufficient evidence provided at the hearing upon which the court could determine that second-hand smoke is permeating the plaintiff’s apartment from a neighboring apartment.

 

4. This matter is to be scheduled by the clerk’s office for a case management conference to schedule the remainder of this civil action.

 

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End Of Decision

 

HOUSING COURT

THOMAS KEHOE, Plaintiff, v. JACQUELINE KOCHANONSKI and JOSE MELENDEZ, Defendant

 

Western Division

 

Docket # No. 09-SP-114

Parties: THOMAS KEHOE, Plaintiff, v. JACQUELINE KOCHANONSKI and JOSE MELENDEZ, Defendant

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

Date: February , 2009

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned summary process (eviction) case came before the court for trial on February 12, 2009, after which the following findings of fact and rulings of law are to enter:

1. Background: The plaintiff, Thomas Kehoe (landlord), owns a two family property located at 302 Main Street, Springfield, where he rented the 1st. floor apartment (the premises) to the defendants, Jacqueline Kochanonski and Jose Melendez (tenants) beginning in November, 2007 at a rental rate of $750 per month.

2. The Landlord’s Claim for Possession: The landlord has established much of the prima facie elements of his case other than the amount of rent that he claims is outstanding. Specifically, the landlord claims that $6,650 is owed through February, 2009. The court finds, however, based on receipts provided by the tenants in conjunction with testimony, and the landlord’s own admission of lack of accurate bookkeeping, that the outstanding rent is $4,000. The outcome of the case turns, therefore, on the tenants’ defenses and counterclaims which, in essence, allege the existence of conditions of disrepair and the landlord’s failure to address them

 

 

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after being aware of same, as well as a claim of retaliation, and a claim of violation of the laws pertaining to the keeping of the last month ‘s rent. The court will address each of these claims in turn.

3. Interference with Quiet Enjoyment: The tenants allege that the landlord has interfered with their quiet enjoyment of the premises, in violation of G.L. c. 186, s. 14 by failing to repair substandard conditions since the inception of the tenancy and that these conditions were so extensive as to seriously impair the enjoyment of the premises. The landlord is liable for breach of the covenant of quiet enjoyment if the natural and probable consequence of his acts causes a serious interference with the tenancy or substantially impairs the character and value of the premises. G.L. c. 186, s. 14; Simon v. Solomon, 385 Mass. 91, 102, 431 N.E.2d 556, 565 (1982). Although a showing of malicious intent in not required, “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) .

4. I find and rule that the landlord was “at least negligent,” and breached the covenant of quiet enjoyment in violation of G.L. c. 186, s. 14, in failing to make repairs from the inception of the tenancy until his recent efforts to remedy said conditions. The landlord was either aware of the conditions because they existed at the time that he commenced this tenancy or because the tenants expressly made him aware of same. Such conditions of disrepair included a leak from the upstairs bathroom into the tenants kitchen light fixture, a loose and leaking toilet, rotted bathroom sub-flooring, basement leaks, an improperly functioning furnace, and various other conditions of disrepair. As such, the tenants are awarded statutory damages equal to three months’ rent, totaling $2,250.

5. Retaliation: The tenants complained to the landlord a several occasions and then in

 

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November, 2008, the tenants contacted the Town of West Springfield Health Department. The landlord admits that he spoke with the Health Department inspector on or about November 25, 2008 and on December 8, 2008 the landlord served the tenants with a notice to quit for non-payment of rent. Reprisal constitutes a defense, G.L. c.239, s.2A and counterclaim, G.L. c.186, s.18, to the landlord’s eviction case. The sequence and timing of events which occurred between the parties gives rise to a presumption that the landlord’s action was reprisal against the tenants for their protected activities of complaining to the Health Department and having them inspect the premises and issue a written citation regarding conditions of disrepair under G.L. c.239, s.2A, which provides in pertinent part as follows:

 

The commencement of such [summary process] action against a tenant, or the sending of a notice to quit upon which the summary process action is based…within six months after the tenant has…exercised such rights…shall create a rebuttable presumption that such summary process is a reprisal…

 

 

6. The presumption of reprisal may be rebutted only by “clear and convincing” evidence that the landlord had “sufficient independent justification” for taking such action, and “would have in fact taken such action, in the same manner and at the same time,” G.L. c.239, s.2A and G.L. c.186, s.18, irrespective of the tenants’ protected activities. The landlord has not rebutted the presumption of reprisal, and is therefor liable for between one and three months rent.[1] The tenants are awarded, therefore, three months’ rent for their claim of retaliation totaling $2,250.

7. Last Month’s Rent: The tenants paid $500 at the commencement of a former tenancy in May, 2007. The landlord, by agreement of the parties, then used that $500 towards the first month’s rent in the instant tenancy. Admittedly, the landlord did not ever credit the tenants with interest on the last month’s rent. The tenants, therefore, are awarded in accordance with G.L.

 

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[1] By his own testimony, the landlord took no steps to evict during several months of rent arrearage. He then served a notice to quit for non-payment of rent within two weeks of learning that the Health Department had been contacted and conducted an inspection.

 

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c.186, s. 15B three times the interest on the deposit totaling $131.16 (representing $43.72 X 3).

8. Housing Specialist Department View: Though the parties agree that the landlord has recently conducted work on the premises to comply with the Board of Health inspection report, there continues to be conditions of disrepair on the premises. As such, this matter is being referred to the court’s Housing Specialist Department for its inspection and view report which shall identify outstanding conditions and generate a schedule for repair of same.

9. Order for Entry of Judgment: Based on the foregoing, judgment shall enter in favor of the defendant tenants for possession and damages in the amount of $631.16 (award to the tenant of $4,631.16 minus the outstanding rent of $4,000). At the election of the tenant, this sum may be applied towards future rent, at the rate of $750 per month. There shall be no court costs assessed against either party at this time. The Housing Specialist Department shall contact the parties to coordinate the scheduling of a view of the premises. If the landlord fails to comply with the view report schedule, this matter may be brought before the court for further rulings.

 

 

 

 

cc: Michael Doherty, Assistant Chief Housing Specialist

 

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End Of Decision

 

HOUSING COURT

MILHOUSES OF ADAMS, Plaintiff, v. DEBORAH LEVESQUE, Defendant.

 

WESTERN DIVISION

 

Docket # No. 08-SP-4503

Parties: MILHOUSES OF ADAMS, Plaintiff, v. DEBORAH LEVESQUE, Defendant.

Judge: /s/Robert G. Fields

Associate Justice

Date: March 6, 2009

RULINGS AND ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

This matter came before the court on defendant’s (tenant’s) motion for summary judgment, claiming that the plaintiff (landlord) failed to properly terminate the tenancy prior to commencing this action.[1] Following a hearing on February 25, 2009, for which both parties appeared, and upon consideration of the written submissions[2], the following order is to enter:

1. Undisputed Facts: The tenant resides in HUD multi-family subsidized housing. The tenancy is governed by 24 C.F.R. Part 247, the HUD Multifamily Occupancy Handbook, and the lease. The landlord delivered a termination notice to the tenant, by hand, which stated the following as the bases for the eviction:

 

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[1] The tenant argues that there are three distinct bases upon which the court should conclude that the landlord failed to properly terminate the tenancy; (1) lack of specificity in the termination notice; (2) insufficient delivery of service by failing to mail it; and (3) failure to state certain language regarding requests for reasonable accommodations. Based on the below analysis, the court only reaches the first ground and, therefore, does not need to reach the second and third.

 

[2] The defendant filed a memorandum of law in support of her motion for summary judgment. The plaintiff did not file written opposition or memoranda.

 

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The reason for this notice to quit is because of repeated and serious violations of your occupancy agreement, and of the laws of the Commonwealth of Massachusetts. To wit: Repeated violations of the lease by way of harassment to residents. On 7/18/08 you were arrested for assault and battery on an elderly resident.

 

2. Legal Standard for Summary Judgment: Summary judgment is appropriate when no material facts are in dispute and the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 569(c); Highlands Ins. Co. v. Aerovox, 424 Mass. 226, 232, 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).

3. Discussion: The lease, the federal regulations governing this tenancy, and the relevant portion of the HUD Handbook all require that the termination notice state the reasons for the landlord’s action with enough specificity so as to enable the tenant to prepare a defense.[3] The requirement for detail and specificity in the notice to quit in federally subsidized tenancies is rooted in the protections guaranteed by the Due Process Clause of the U.S. Constitution. The

 

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[3] The Lease at paragraph 23e says: “state the grounds for termination with enough detail for the Tenant to prepare a defense;” 24 C.F.R. s.247.4 (2) says: “state the reasons for the landlord’s action with enough specificity so as to enable the tenant to prepare a defense;” and the HUD Handbook 4350.3 REV-1, CHG-2 Section 8-13 (B)(2)(c)(2) says: “State the reasons for the action with enough detail to enable the tenant to prepare a defense.” Although each slightly different, they all stand for the exact same proposition.

 

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notice in the instant matter states that the termination is due to repeated “harassment to residents” and that on 7/18/08 the tenant was “arrested for assault and battery on an elderly resident.” The first part implies that there have been multiple incidents of harassment by the tenant but the notice fails to provide any details or dates of the alleged behavior. The second part of the notice states that an arrest of the tenant occurred on a specific date, but fails to give any detail as to the event itself. The notice fails to set forth a factual statement of any incident alleged, or implied, and was insufficient to inform the tenant adequately of the allegations against her as required. See Edgecomb v. Housing Authority of Town of Vernon, 824 F.Supp. 312, 315 (D.Conn., 1993) (termination notice which alleged violent activity by federally-subsidized tenant was held to be deficient by the court); Plowshares v. Smith, 294 F.Supp.2d 1067 (N.D.Cal.2002) (termination notice which alleged threatening behavior by federally-subsidized tenant was held to be deficient by the court).

4. The landlord argues that through the discovery process the tenant has been made fully aware of the particulars of the allegations and, thus, any deficiencies of the termination notice are “cured” through post-notice disclosures. This argument must fail because the purpose of the federal HUD regulation is to ensure that tenants, whether or not represented by counsel, receive constitutionally adequate notice of the reasons for the termination

of tenancies; particulars provided by counsel through the judicial discovery process cannot cure inadequate notice. See Anna Loiacano v. Judie Cooper, Northeast Housing Court No. 93-SP-287, (Kerman, J., 5/11/93) (court held that the termination notice failed to provide the factual basis for termination of the federally-subsidized tenancy with any meaningful level of specificity). The deficiencies in the notice must result in the dismissal of the landlord’s claim for possession.[4]

 

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[4] Although the law requires dismissal of this action, the landlord continues to have remedy including the option to bring an action for injunctive relief if it believes that a tenant is

 

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5. Order: Based on the foregoing, the defendant’s summary judgment motion is allowed and judgment shall enter dismissing the case.[5]

 

So entered this 6th day of March, 2009.

 

 

 

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engaged in threatening or violent behavior

 

[5] The tenant’s Answer asserts only defenses and not counterclaims. As such, no claims need be transferred to the civil docket and this matter is dismissed.

 

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End Of Decision

 

HOUSING COURT

RICK WHITE, Plaintiff, v. DEBORAH THOMPSON, Defendant.

 

Western Division

 

Docket # No. 09-SP-426

Parties: RICK WHITE, Plaintiff, v. DEBORAH THOMPSON, Defendant.

Judge: /s/Robert G. Fields

Associate Justice

Date: March , 2009

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned matter came before the court for trial on March 3, 2009, after which the following findings of facts and rulings of law are to enter:

1. Background: The plaintiff, Rick White (landlord), owns a 4-unit building at 26 Cambridge Street in Chicopee where he rented apartment #2L (the premises) to the defendant, Deborah White (tenant). The tenancy began on May 1, 2006 and the current rent is $500 per month.

2. The Landlord’s Claim for Possession: The landlord has established the prima facie elements of his claim for possession and for outstanding rent. Specifically, by agreement of the parties

as articulated in the Pretrial Stipulation, the landlord had served a termination notice to the tenant for non-payment of rent on December 30, 2008, and then had her served properly with a summons and complaint. The parties also agree that the rent totaling $2,200 is outstanding through March, 2009. What remains for the court’s determination, therefore, are the tenant’s defenses and counterclaims.

3. Tenant’s defenses and counterclaims: The tenant alleges that there have been at

 

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various times of the tenancy and through the date of the trial, conditions of disrepair on the premises which the landlord has failed to repair. The court will address each of these claims and analyze whether the implied warranty of habitability and/or the tenant’s covenant of quiet

enjoyment has been breached.

4. Warranty of Habitability: The tenant described various conditions of disrepair and provided supporting photographs. Such conditions included a faulty light switch in the bathroom that causes an electrical shock and blows the fuse/circuit if used, electrical outlets dislodged from the baseboards in several rooms, hanging ceiling light fixtures, poor ceiling patches in the living room, mice infestation, a gap between the crumbling sheet rock wall in the master bedroom and the floor, and missing and loose balustrades in the hallway stairwell . All of these conditions constitute violations of the minimum standards of fitness for human habitation as set forth in Article II of the State Sanitary Code, 105 C.M.R. 410.00 et seq. These conditions at the premises constitute a defense based upon breach of the implied 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).

5. I find that the fair rental value of the premises was reduced by 5%, on average, as a result of these conditions of disrepair which have existed over the past two years. The tenant’s damages for the landlord’s breach of the warranty of habitability are therefore $600 ( $500 X 5%

 

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= $25 X 24 months =$600).

6. Breach of Covenant of Quiet Enjoyment: The tenant

identified two additional defects in the apartment that I consider to be more serious than the other conditions noted above. First, the premises are not secure from intrusion as the three doors to the apartment lack locking mechanisms that can be used from the outside of the door to secure the premises when the occupants are not at home. The “front” door to the apartment has no lock and in order to secure it, somewhat, the tenant wedges a crutch against the door handle. The “back” door has only a sliding latch that can be used from inside the unit. Finally, the “porch” door is not a safe means of egress, as the tenant must climb down the porch to use it. Secondly, there is only one source of heating in the entire unit. It is a free-standing, gas powered wall unit located in the kitchen. There are no other sources of heat in any of the other rooms in the apartment and the tenant testified that the one heating unit does not adequately heat all of the rooms on the premises, particularly the bedrooms.

7. The landlord is liable for breach of the covenant of quiet enjoyment if the natural and probable consequence of his acts causes a serious interference with the tenancy or substantially impairs the character and value of the premises. G.L. c. 186, s. 14; Simon v. Solomon, 385 Mass. 91, 102, 431 N.E.2d 556, 565 (1982). I find and rule that these two conditions of disrepair substantially impair the value of the premises and award the tenant a statutory claim equal to three months’ rent totaling $1,500 ($500 X 3).

8. Order for Entry of Judgment: 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 $100. This represent $2,200 (landlord’s rent claim) – $2,100 (tenant’s damages). 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

 

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the deposit required by this order, judgment is to enter for the plaintiff/landlord for possession and $100 plus costs at the expiration of the statutory ten day period.

9. Further, the tenant indicated that the Board of Health is scheduled to inspect the

premises. The tenant may bring a motion in this action if she alleges that the landlord continues to fail to remedy the conditions of disrepair on the premises.

 

So entered this day of March, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

WILLIAM J. TEECE, JR., Plaintiff, V. KATHLEEN CARTER, Defendant.

WESTERN DIVISION

 

Docket # Nos. 09-CV-241

Parties: WILLIAM J. TEECE, JR., Plaintiff, V. KATHLEEN CARTER, Defendant.

Judge: /s/Robert G. Fields

Associate Justice

Date: March 13, 2009

RULING AND ORDER ON PLAINTIFF’S MOTION FOR AN INJUNCTION[1]

After hearing on March 3, 2009, on the plaintiff’s application for a restraining order, at which both parties appeared and were represented by counsel, the following ruling and order is to enter:

1. Background: The plaintiff (landlord) is a housing authority which owns and manages a public housing complex located at Birch Park Circle in West Springfield, MA. The defendant (tenant) is a tenant who has resided at 13L Birch Park Circle with her family since 2004. Recently, the landlord has learned that the tenant has been charged with selling prescription drugs from her apartment.[2] The charge stems from three “controlled drug buys” allegedly having

 

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[1] Although the landlord filed an application for a temporary restraining order, it was heard with notice to the defendant, who was represented by counsel. Pursuant to Mass. R. Civ. P. 65, the court will therefore treat the motion as being for a preliminary injunction.

 

[2] That matter is currently pending in District Court and alleges the sale of Oxycodone and Morphine.

 

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taken place at her apartment in February, August and September, 2008.

2. Legal Standard: 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).

3. Discussion: Two police officers testified about three “controlled buys” that they conducted at 13 Birch Park Circle on February 6, 2008, August 28, 2008, and September 26, 2008. On each occasion the police pursued a very similar course of action which included observing a confidential informant make a phone call to allegedly set up a purchase of drugs from the tenant, use of marked currency, observations of the informant entering 13 Birch Park Circle and exiting same, and then a meeting outside the premises where the purchased drugs were handed over to the police officers and the informant being searched. The State Laboratory Institute drug analyses from the drugs purported to being purchased on all three occasions indicates that they contained Morphine (2 tablets from the February, 2008 purchase) and Oxycodone (6 tablets from the

August, 2008 purchase and 8 tablets from the September, 2008 purchase).

4. In addition to denying the allegations, the tenant asserted that if there were such controlled buys, they did not involve her or her home. Instead, the tenant asserts that these sales involved her direct neighbors at Apt. 13R. The tenant highlighted the physical layout of the

 

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premises. The main front door at Birch Park Circle leads immediately to two apartments. One of the apartments, 13L is the tenant’s unit and is directly ahead as you enter the main front door. The other unit, 13R, is located to the right as you enter the main front door. The front main door is a solid door except for four small windows (each approximately a 4-inch square) at the very top of the door. If the door was in a closed position as the informant entered the building, it would be very difficult for the police officers to observe with any certainty which apartment the informant went into to conduct his purchase. Furthermore, the tenants points to the fact that the police report which served as the basis for the criminal complaint in District Court identifies the apartment where the drugs were purchased as Apt. 13R and not the tenant’s unit (13L). One of the police officers stated that this was purely error and that he has submitted a corrected version in those proceedings.

5. Balance of Hardship: The landlord seeks an order that the tenant be required to vacate her home until a Summary Process (eviction) action is completed. When balancing the hardships which would befall the parties depending on whether or not such an order is to issue, I focus on several factors. Foremost, the landlord has brought this action six months after the last alleged sale of drugs and has not asserted that the tenant has done anything illegal or in violation of her lease over that period of time. Though the court fully appreciates the seriousness of the landlord’s claims asserted in this matter, without an allegation that the tenant has done anything wrong for the past six months, the landlord’s position that such an emergency order is necessary is seriously underminded. The harm to the tenant, on the other hand, should she be ordered to vacate her publically subsidized home until a Summary Process action is completed, is significant. The tenant is disabled and requires the service of a personal care attendant on a daily

 

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basis. The tenant testified that she has five children between the ages of 2 years and 15 years old and that each of them have varying medical conditions including depression, brain injury, and an attention deficit disorder which all require various visits each week to the home by social workers and counselors.

6. The risk of harm that would befall the tenant should she be ordered out of her home on an emergency basis cuts in the tenant’s favor. Additionally, the landlord has further remedy at law in two

ways. First, the landlord may proceed in Summary Process-which it states it has already begun by serving the tenant a notice to quit. Second, should the landlord believe that the tenant has engaged in illegal drug sales in the future, it may bring an emergency request for injunctive relief based on such new events.

7. Conclusion: For the foregoing reasons, the landlord’s application for an injunction is denied and this matter is hereby dismissed.

 

So entered this 13th day of March, 2009.

 

 

 

 

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End Of Decision

 

 

HOUSING COURT

SPRUCES, MHC, LLC, Plaintiff, v. LAURI RAHILLY, Defendant.

 

Western Division

 

Docket # No. 09-SP-667

Parties: SPRUCES, MHC, LLC, Plaintiff, v. LAURI RAHILLY, Defendant.

Judge: /s/Robert G. Fields

Associate Justice

Date: March , 2009

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned summary process (eviction) case came before the court for trial on March 11, 2009, after which the following findings of fact and rulings of law are to enter:

1. Background: The plaintiff, Spruces MHC, LLC (landlord), is a mobile home park located Williamstown, MA , where it has rented a lot (the premises) to the defendant, Lauri Rahilly (tenant) since January, 2004. The current lot rent is $270 per month.

2. The Landlord’s Claim for Possession: The landlord has established much of the prima facie elements of its case. Specifically, it had the tenant served with a termination notice for non-payment of rent on November 25, 2008[1], and properly served a summons and complaint. What remains for the court’s determination is to determine how much rent is outstanding through March, 2009.

 

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[1] Though the tenant testified that she never received the notice to quit, she appeared to be a bit equivocal on this point and I find that the landlord’s evidence on service (Sheriff’s return of service) was sufficiently credible to carry its burden of proof on this point.

 

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3. Claims for Rent: The landlord claims that it is owed $945 in rent. This represents 3.5 months of unpaid rent (at $270) for December, 2007, half of September, 2008, and all of February and March, 2009.[2] The tenant’s position is that she paid December, 2007 and was not aware until these eviction proceedings that the

landlord was seeking rent for that month until the day of trial. The tenant admits that she did not pay September, 2008 rent timely but paid $135 towards September, 2008 rent with her December, 2008 rent payment. Further, the tenant tendered a rent check dated February 5, 2009 for February which was returned to her by the landlord due to a policy that it doesn’t accept personal checks. The tenant also sent a money order on March 3, 2009 for $405. This was paid to cover March, 2009 rent and the outstanding $135 owed for September, 2008.

4. There was some confusion at trial on the part of the landlord when articulating what rents were outstanding and for which months rent payments were used when collected. The landlord explained that, in part, some of this confusion may be the result of the its policy of applying payments of rent to cover any monies outstanding on the tenant’s ledger at the time the funds are received. Even with that confusion somewhat clarified, the landlord’s position that December, 2007 rent is owed must fail. The notice to quit used in this case directs the tenant to read the attached “Schedule A” to ascertain the amount of rent that is outstanding at the time of the notice to quit (November 18, 2008). Schedule A indicates that as of September, 2008 (which the tenant admits she didn’t pay at that time) the balance was $270; one month’s rent. As such, the landlord’s own records indicate that the tenant went into September, 2008 without owing anything but September, 2008 rent. That accounting is consistent with the tenant’s position; that December, 2007 was paid. It is also consistent with the fact that the landlord never informed the

 

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[2] At trial, the landlord additionally sought $71.48 for service of the notice to quit but stated that there is no lease term allowing for said payment to be charged to the tenant and has withdrawn that claim.

 

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tenant that she owed December, 2007 rent until these eviction proceedings; some fifteen months

later.

5. I find and rule that the tenant owes only one month through March, 2009 totaling $270. For the foregoing reasons, judgment shall enter in favor of the landlord for $270 plus court costs of $191.94, totaling $461.94. Consistent with the principle that the law abhors the forfeiture of a lease, the tenant shall be allowed to pay the $461.94 in four monthly installments.

6. Order: Judgment shall enter for the plaintiff landlord for $270 plus court costs of $191.94. Execution shall be stayed

conditioned upon the following terms:

 

* Tenant shall pay her current rent of $270 by the first week of each month.

* Tenant shall pay $112.98 (in addition to rent) in April, May, June, and July, 2009.

 

 

* If the tenant fails to make any of these payments, the landlord may motion the court for issuance of the execution.

 

* If the tenant makes all of these payments, this matter shall be dismissed with prejudice on June, 15, 2009.

 

So entered this day of March, 2009.

 

 

 

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End Of Decision

 

 

HOUSING COURT

ADAM MARCHACOS and GEORGE MARCHACOS, Plaintiffs, v. BRIAN CORNWALL, Defendant

 

Western Division

 

Docket # No. 09-SP-582

Parties: ADAM MARCHACOS and GEORGE MARCHACOS, Plaintiffs, v. BRIAN CORNWALL, Defendant

Judge: /s/Robert G. Fields

Associate Justice

Date: March , 2009

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned summary process (eviction) case came before the court for trial on March 13, 2009, after which the following findings of fact and rulings of law are to enter:

1. Preliminary Matter: At the request of the plaintiff, George Marchacos will be added to this summary process action as a party-plaintiff in the landlords’ case and as party-defendant relative to the tenant’s counterclaims.

2. Background: The plaintiffs, Brian and George Marchacos (landlords), own a three-family house at 32 Forest Avenue in Greenfield, where they have rented the third floor apartment (the premises) to the defendant, Brian Cornwall (tenant) since May, 2008.[1]

3. The Landlord’s Claim for Possession: The landlords have established the prima facie elements of their case; service of the termination notice, service of the summons and complaint and the amount of rent unpaid, $1,560, through March, 2009. The outcome of the case turns,

 

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[1] The tenant has resided on the premises since June, 2000 but the landlords have owned the property only since May, 2008.

 

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therefore, on the tenant’s defenses and counterclaims which, in essence, allege the existence of conditions of disrepair and the landlords’ failure to address them after being aware of same, and a breach of the tenant’s covenant of quiet enjoyment; alleging that the landlords entered his apartment without his permission and

packed up his belongings.

4. Breach of Warranty of Habitability: A number of conditions developed during the course of the tenancy which violated the minimum standards of fitness for human habitation, as set forth in Article H of the State Sanitary Code, 105 CMR 410 et seq. Specifically, for the six months preceeding this case there has been insufficient water pressure in the shower; since about the same time there have been non-working electrical outlets in two rooms; additionally, since the landlord purchased the property there has been a leak in the kitchen sink faucet. The tenant asserts that he told the landlords about these problems on several occasions and that the landlords were not sufficiently attentive to these repairs. It is unclear, however, what exactly the tenant reported, and when he reported, conditions to the landlords. Conversely, the landlords report that they have had a licensed electrician and a licensed plumber performing work at the three-family house since they purchased the premises in 2008, but the evidence was not clear what work was done in tenant’s apartment. Nevertheless, the tenant’s allegations regarding conditions at the premises constitute a defense and counterclaims based upon breach of the implied warranty of habitability, for which the landlords are 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.

 

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Haddad v. Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991).

5. I find that the fair rental value of the premises was reduced by 5% on average during the six months preceding this court action and 2% for the months of May, 2008 through October, 2008[2]. The tenant’s damages, therefore, for the landlords’ breach of the warranty of habitability are $156 [$520 (contract rent) X 5% = $26 X 6 months] PLUS $52 [$520 (contract rent) X 2% =$10.40 X 5 months = $52, totaling $208.

6. Interference with Quiet Enjoyment: The tenant alleges that the landlords have interfered with his quiet enjoyment of the premises, in violation of G.L. c. 186, s. 14 by entering his apartment on January 23, 2009 (the day before his release from Worcester State Hospital) and packing up his apartment without his permission do enter the unit. The landlords are liable for breach of the covenant of quiet enjoyment if the natural and probable consequence of their acts causes a serious interference with the tenancy or substantially impairs the character and value of the premises. G.L. c. 186, s. 14; Simon v. Solomon, 385 Mass. 91, 102, 431 N.E.2d 556, 565 (1982). Although a showing of malicious intent

in not required, "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) .

7. I find and rule that the landlord was "at least negligent," and breached the covenant of quiet enjoyment in violation of G.L. c. 186, s. 14, by entering the tenant's apartment, removing all of his wall postings, and packing up all his belongings in plastic bags and placing them in the center of the living room, without the tenant's permission to do so. The landlords' position that they didn't know where the tenant and assumed that he was not going to return is not an

 

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[2] The 5% reduction is based on the existence of all three conditions of disrepair. The 2% reduction is based on the sole issue of the kitchen faucet leak which existed prior to the others and then has persisted since.

 

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adequate defense to this claim. The tenant was in his apartment until he went to the hospital on January 6, 2009 and returned to the apartment seventeen days later on January 24, 2009. Under these circumstances, the landlord did not do enough to verify that the tenant had surrendered possession of the unit before entering it and assume that the tenant was not returning. For a court to find a surrender it must clearly appear that the tenant has finally left the premises with the intention of never returning. See Hall, Massachusetts Law of Landlord and Tenant (Little, Brown, 4th Ed. 1949) at s.150. That self-help evictions are prohibited is a bedrock axiom of landlord/tenant law, embodied in a number of statutes in addition to c. 186 s.14. E.g., G.L.c.184 s.18, c. 186 s.15F; c. 266 s.20. The facts of this case cannot support a finding of unequivocal intent to surrender on the part of the tenant. In fact, the tenant hadn’t abandoned at all but was under medical observation at a state hospital. I therefore must find that the landlords’ actions on January 23, 2009, were committed in violation of c. 186 s.14. No greater damages having been proved, a finding is to enter for the tenant in this claim in the amount of three months’ rent, totaling $1,560.

8. Order for Entry of Judgment: Based on the foregoing, judgment shall enter in favor of the defendant tenant for possession and for damages in the amount of $26.423. Additionally, the landlord is ordered to pay $200 to the defendant for reasonable attorneys fees in accordance with G.L. c.186, s.14.

 

So entered this day of March, 2009.

 

 

 

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[3] This represents an award to the tenant of $1,768 ($208 warranty of habitability damages plus $1,560 quiet enjoyment damages) minus the outstanding rent and court costs totaling

$1,741.58 ($1,560 rent plus $181.58 court costs).

 

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End Of Decision

 

 

HOUSING COURT

STEPHEN GALLAGHER, Plaintiff, v. CARL BASILE, Defendant.

 

 

 

 

Hampden, ss.

 

 

Docket # No. 09-SP-1165

 

Parties: STEPHEN GALLAGHER, Plaintiff, v. CARL BASILE, Defendant.

 

Judge: /s/Robert G. Fields

Associate Justice

 

Date: May, 2009

 

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned summary process (eviction) case came before the court for trial on April 30 2009, after which the following findings of facts and rulings of law are to enter:

1. Background: The plaintiff, Stephen Gallagher (landlord), owns a single family property located at 24 Randall Street in Agawam (the premises) which he rented to the defendant, Carl Basile (tenant) and his family beginning April 15, 2007 at a rental rate of $1,050 per month.

2. The Landlord’s Claim for Possession: The landlord has established much of the prima facie elements of his case through a stipulation signed by the parties. Specifically, the parties agree that the tenant received a notice to quit on February 24, 2009 and received the summons and compliant and that the monthly rent is $1,050. The parties disagree about how much rent is outstanding. The landlord claims that $9,300 has not been paid and the tenant

 

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argues that it is only three months outstanding, totaling $3,150. The landlord provided his rent ledger and the tenant did not provide evidence of any rental payments. The court finds that the amount of unpaid rent is $9,300 through April, 2009. The outcome of the case turns, therefore, on the tenant’s defenses and counterclaims which, in essence, allege interference with quiet

enjoyment based on two separate bases; lack of heat on the second floor and a confrontational event instigated by the landlord. The court will address each of these claims in turn.

3. Interference with Quiet Enjoyment; Failure to Provide Heat on Second Floor: The tenant, and his minor son, testified that there is no heat during the winter months on the second floor. The tenant’s son, whose bedroom is located on the second floor, testified how he has slept on the couch in the first floor living room during much of the heating season over the past two winters. The tenant also testified that he told the landlord about this situation and the landlord failed to repair it. This failure to properly make repairs to the heating system after being made aware of the 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 in accordance with G.L. c.186, s.14. Not having proved actual damages, the tenant is awarded three months’ rent, or $3,150 on this claim.

4. Interference with Quiet Enjoyment; February 23, 2009 Incident: The parties testified about an incident that occurred at the premises on February 23, 2009 when the landlord admits that he yelled at the tenant and also admits that he left the premises and circled back in his vehicle to look into the garage to show the tenant that he was aware that there were two new sports vehicles inside. The landlord admits that he was angry over the tenant’s non-payment of rent. The tenant described the incident as being very scary and that he was concerned for the

 

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safety of his family. I find that the landlord’s behavior on this occasion breached the tenant’s covenant of quiet enjoyment in accordance with G.L. c.186, s.14.

5. The case law raises the issue of whether more than one recovery may be had under this statute in a single action. Simon v. Solomon, 385 Mass. 91 (1982). Solomon stands for the proposition that statutory damages for the same category of violations may not be awarded even if the violations continue to recur through the tenancy. Where, however, different prongs of the statute are violated by discreet and separate acts of the landlord, it makes no sense to deny recovery for each wrong. To do otherwise would be to encourage

multiplicity of litigation, or else excuse clear violations of the law that are subsequent to an original violation. See, Thompson v. Thomas, Hampden Housing Court Case No. 88-SP-8133 (Abrashkin, J. 1988). In this case, the violations of G.L. c.186, s.14 fall into two separate categories-failure to provide heat to the second floor, and the aggressive behavior found to have occurred on February 23, 2009. As such, the tenant is entitled to s separate award of $3,150 in accordance with G.L. c.186, s.14 on account of the landlord’s behavior on February 23, 2009.

6. Order for Entry of Judgment: 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 $3,000. This represent $9,300 (landlord’s rent claim) – $6,300 (tenant’s damages). If he 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 $3,000 plus costs at the expiration of the statutory ten day period.

So entered this day of May, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

GORDAN L. GOLDSMITH and PRISCILLA T. GOLDSMITH Plaintiffs, v. JAMES HILL, Defendants.

 

Hampden, ss.

 

 

Docket # No. 09-SP-1228

 

Parties: GORDAN L. GOLDSMITH and PRISCILLA T. GOLDSMITH Plaintiffs, v. JAMES HILL, Defendants.

 

Judge: /s/Robert Fields

Associate Justice

 

Date: April, 2009

 

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned summary process (eviction) matter came before the court for trial on April 23, 2009, after which the following findings of facts and rulings of law are to enter:

1. Background: The plaintiff, Priscilla T. Goldsmith owns and the plaintiff Gordan L. Goldsmith manages (landlords) building located at 32 Chestnut Street in Ludlow, Masschusetts where they rent a room on the second floor (the premises) to the defendant, James Hill (tenant). The tenancy began on January 1, 2006 and the rent is currently $110 each week.

2. The Landlord’s Claim for Possession: The landlords have established the prima facie elements of their claim for possession and for outstanding rent. Specifically, by agreement of the parties as articulated in the Pretrial Stipulation, the outstanding rent through April, 2009 is $880. Though there is a dispute about service of the notice to quit, I find that the notice was in fact delivered to the tenant’s mailbox on or about March 13, 2009. What remains for the court’s determination, therefore, are the tenant’s defenses and counterclaims.

 

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3. Tenant’s defenses and counterclaims: The tenant alleges that

there have been at various times of the tenancy and through the date of the trial, conditions which violate the state sanitary code on the premises which the landlords have failed to remedy.

4. Warranty of Habitability: The tenant described the common area bathroom and shower, claiming that they are in a constant state of unsanitariness. The landlord disputed that, explaining that he has a contract with someone who cleans them twice per week. Additionally, the landlord says that on those occasions when the bathroom is particularly unsanitary and requires additional cleaning is when they are made so by the tenant. The tenant did not provide any photographic, documentary, or testimonial evidence (other than his own testimony) to support his claim. I find that the tenant did not meet his burden of proof and, therefore, the tenant shall not be awarded any damages on his claim for breach of the warranty of habitability.

5. Security Deposit: The parties agree that the tenant paid a $95 security deposit at the commencement of the tenancy. The tenant testified that he never received, nor was credited, annual interest on his deposit in violation of the G. L. c.186, s.15B. The landlord could not provide any evidence to the contrary, not even testimonial evidence. Accordingly, I award the tenant three times the security deposit ($285) plus three times the interest at 5% per annum totaling ($42.75), for a damages award on the tenant’s claim for breach of the security deposit totaling $327.75.

6. Order for Entry of Judgment: 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 $552.25. This represent $880 (landlords’ rent claim) – $327.75 (tenant’s damages). If he does so, the sum deposited is forthwith to be released

 

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to the landlords 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 plaintiffs/landlords for possession and $880 plus costs against the defendant at the expiration of the statutory ten day period.

So entered this day of April, 2009.

 

 

 

 

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End Of Decision

 

HOUSING COURT

BARBARA BATES, Plaintiff, v. JAYNETTE ROSADO, Defendant.

 

 

Hampden, ss.

 

 

Docket # No. 09-SP-491

 

Parties: BARBARA BATES, Plaintiff, v. JAYNETTE ROSADO, Defendant.

 

Judge: /s/Robert Fields

Associate Justice

 

Date: April, 2009

 

ORDER

After hearing on April 14, 2009 on plaintiff’s (landlord’s) motion for entry of judgment nunc pro tunc and issuance of the execution, at which both parties were present, the following order is to enter:

1. The motion is hereby ALLOWED.

2. A judgment for possession and for $2,279 shall enter for the landlord nunc pro tunc back to March 13, 2009 and execution shall issue forthwith.

3. Use of the execution shall be STAYED, however, conditioned upon compliance with the terms of this order.

4. In accordance with the terms of the March 12, 2009 agreement of the parties, the tenant shall pay her current rent by the first week of each month and shall also pay $75 on the 15th and again on the 30`h of each month toward the arrearage.

5. The tenant shall apply for Protective Payments from the Department of Transitional Assistance.

 

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6. The tenant shall apply for the R.A.F.T. program through H.A.P.

7. The tenant shall allow access to her apartment this coming weekend, April 18 and 19, 2009 for the landlord to effectuate repairs. The tenant and her family will not be present in the unit while the repairs are being made. If all the repairs are not completed during these two days, the landlord shall give 24 hours written notice for work to be completed during Saturdays or Sundays between the hours of 12:00 to 5:00 p.m. The tenant and her family shall leave the premises while the repairs are being effectuated.

8. Though this summary process matter was based on non-payment of rent, the court hereby expands this case to allow for the landlord to file a motion for use of the execution if there is any further disturbance created by the tenant or her family. At such a hearing, the landlord will be required to bring a witnesses with first hand knowledge of any allegation of disturbance.

9. Upon payment of all the arrearage this matter shall be dismissed.

 

So entered this day of April, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

VILLAR REAL ESTATE, Plaintiff, v. BRENDA MORALES, Defendant

 

Hampden, ss.

 

 

Docket # No. 09-SP-1238

 

Parties: VILLAR REAL ESTATE, Plaintiff, v. BRENDA MORALES, Defendant

 

Judge: /s/Robert G. Fields

Associate Justice

 

Date: May 1, 2009

 

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned summary process (eviction) case came before the court for trial on April 30, 2009, after which the following findings of facts, rulings of law, and order for entry of judgment are to enter:

1. Background: The plaintiff, Villar Real Estate (landlord), owns a sixteen unit property located at 37 Spring Street in Springfield, where it rented apartment #2R (the premises) to the defendant, Brenda Morales (tenant) beginning on November 1, 2008 at a rental rate of $700 per month.

2. The Landlord’s Claim for Possession: The landlord has established the prima facie elements of its case. Specifically, the parties stipulate that the landlord served a termination notice for non-payment of rent on February 26, 2009 and properly served a summons and complaint. The parties stipulate further that the amount of outstanding rent is $1,900 through April, 2009. The outcome of the case turns, therefore, on the tenant’s defenses and counterclaims

 

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which, in essence, allege breach of the warranty of habitability (bad conditions) and retaliation. The court will address each of these claims in turn.

3. The Tenant’s Counterclaims: The tenant raises two counterclaims: breach of the warranty of habitability as a result of substandard conditions at the premises and retaliation for reporting those conditions to the city code enforcement office.

4. Warranty of Habitability; Conditions: I credit the tenant’s testimony and the finding of the code enforcement department that there were various conditions of disrepair at the premises, the most serious of which included heavy infestation of roaches (February 24, 2009 code report), rotted sunk in toilet area (February 24, 2009 code report), and a long list of paint and window violations throughout the dwelling. All of these conditions constitute violations of the minimum standards of fitness for human habitation as set forth in Article II of the State Sanitary Code, 105 C.M.R. 410.00 et seq. These conditions at the premises constitute a defense based upon breach of the implied 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).

5. I find that the fair rental value of the premises was reduced by 30%, on average, as a

 

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result of these conditions of disrepair over the entire tenancy (four months) [1]. The tenant’s damages for the landlord’s breach of the warranty of habitability are therefore $840 (this represents 30% of the $700 contract rent for four months).

6. Retaliation: The tenant complained to the landlord about conditions of disrepair, particularly about the cockroach infestation. Then, on February 24, 2009, the Springfield Code Enforcement Housing Division contacted the landlord and inspected the premises. It then produced a code report and provided it to the

parties. Two days after the inspection, the landlord served the tenant with a notice to quit for non-payment of rent. Reprisal constitutes a defense, G.L. c.239, s.2A and counterclaim, G.L. c.186, s.18, to the landlord’s eviction case. The sequence and timing of events which occurred between the parties gives rise to a presumption that the landlord’s action was reprisal against the tenant for her protected activities of complaining to the Department of Code Enforcement, Housing Division and having them inspect the premises and issue a written citation regarding conditions of disrepair under G.L. c.239, s.2A, which provides in pertinent part as follows:

 

The commencement of such [summary process] action against a tenant, or the sending of a notice to quit upon which the summary process action is based…within six months after the tenant has…exercised such rights…shall create a rebuttable presumption that such summary process is a reprisal…

 

7. The presumption of reprisal may be rebutted only by “clear and convincing” evidence that the landlord had “sufficient independent justification” for taking such action, and “would have in fact taken such action, in the same manner and at the same time,” G.L. c.239, s.2A and G.L. c.186, s.18, irrespective of the tenants’ protected activities. The landlord has not rebutted

 

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[1] The landlords relocated the tenant to apartment #1R in the same building on March 24, 2009 because the new apartment was in much better condition and it is from this new unit that the landlord seeks possession and outstanding rent.

 

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the presumption of reprisal, and is therefor liable for between one and three months rent. The tenant is awarded, therefore, three months’ rent for her claim of retaliation totaling $2,100.

8. Order for Entry of Judgment: Based on the foregoing, judgment shall enter in favor of the defendant tenant for possession and damages in the amount of $1,040 (award to the tenant of $2,940 minus the outstanding rent of $1,900). At the election of the tenant, this sum may be applied towards future rent, at the rate of $700 per month. There shall be no court costs assessed against either party at this time.

So entered this 1st day of May, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

HOLYOKE FARMS, Plaintiff, v. JESMARIE BURGOS, Defendant.

 

Hampden, ss.

 

 

Docket # No. 08-SP-3156

 

Parties: HOLYOKE FARMS, Plaintiff, v. JESMARIE BURGOS, Defendant.

 

Judge: /s/Robert Fields

Associate Justice

 

Date: April, 2009

 

ORDER

After hearing on April 28, 2009 on the plaintiff’s (landlord’s) motion to extend agreement for judgment, at which the landlord appeared but the defendant (tenant) did not appear, the following order is to enter:

1. Procedural Background: This summary process matter was filed with the court on August 27, 2007. The case was based on a rental period notice for the tenant’s alleged failure to fulfill her obligations of the recertification process of this regulated and subsidized tenancy. By the time of the first agreement of the parties filed in the court on December 11, 2007, the tenant owed no rent but agreed to pay her rent timely and keep the case open until June 30, 2008. In May, 2008, as a result of a motion filed by the landlord, the December, 2007 agreement of the parties was extended until October 30, 2008. On October 1, 2008, the landlord marked up another motion to extend the agreement of the parties until April 30, 2008. Said motion was

 

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allowed on October 20, 2008 and it is not evident from the court docket whether or not the tenant was present. The next motion before the court was the instant motion to extend the December, 2007 agreement for judgment for an additional six months, until October 31, 2009. This motion was filed an entire year after the last day of the thrice extended agreement of the parties.

2. Discussion: The court appreciates the important role that an agreement of the parties filed with the court can play in a tenancy, especially one which involves a tenant with a problem consistently paying the rent on time. The court also understands that agreements which provide a reasonable number of months to ensure that the tenant will pay their rent timely avoids the more potentially detrimental alternative of following through on the eviction instead of entering into an agreement. This case, however, involves a summary process action commenced on fault grounds (failure to complete a required administrative recertification process) which was converted by the parties’ agreements to being about rent payments (but never expressly so), and then extended repeatedly (often by motion with a defaulting tenant). Then, a year after the last day of the last extension of the agreement had expired, the landlord seeks to extend the (already expired) agreement for another six months. Finally, according to the landlord’s motion, the tenant paid her rent for five months after the last extension had expired. Though the court realizes that these extensions reflect the landlord’s patience and commitment to preserve the tenancy, at some point a summary process case must end on its own terms.

3. Conclusion and Ruling: Accordingly, I find that this matter was dismissed by the terms of the parties’ agreement, and by earlier extensions allowed by the court, on April 30, 2008. Therefore, for the reasons articulated above, the motion to extend agreement of judgment is hereby DENIED and this matter is closed.

 

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So entered this day of April, 2009.

 

 

 

 

 

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End Of Decision

 

HOUSING COURT

207-211 MAIN STREET, LLC,, Plaintiff, v. BALDEV SINGH, Defendant

 

Hampshire, ss.

 

 

Docket # 08-SP-1717

 

Parties: 207-211 MAIN STREET, LLC,, Plaintiff, v. BALDEV SINGH, Defendant

 

Judge: /s/Robert Fields

Associate Justice

 

Date: April, 2009

 

ORDER

After hearing on April 13, 2009 on the plaintiff’s (landlord’s) motion for release of funds held in escrow, at which both parties appeared, the following order is to enter:

1. Background: On January 12, 2009, the parties appeared before the court for hearing on the defendant’s (tenant’s) motion for stay of enforcement proceedings. Ostensibly, the tenant was seeking a thirty-day postponement of the physical eviction then scheduled to allow him to seek injunctive relief from the Superior Court based on claims which challenge the landlord’s title to the property.

2. Discussion: At the conclusion of the January 12, 2009 hearing, the court allowed the tenant’s motion for the cancellation of the physical eviction and for a thirty-day stay contingent upon the tenant depositing a bond of $5,600 with the Clerk’s Office of the Housing Court. The court derived the amount based on testimony at the hearing of the following costs which would be incurred by the landlord based on the allowance of the tenant’s motion: $3,000 for lost use and occupancy of several units which could not be rented out until the tenant vacated, $900 for use and occupancy of the tenant’s unit, $500 for the cancellation fees for the bonded moving company, $300 for the sheriff’s fee, $900 for attorneys fees. After depositing this sum with the court, the tenant was unable

 

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to obtain further stay from the Superior Court of the physical eviction and the parties report that the landlord levied on execution.

3. The matter before the court at this time is to ascertain how much of the bond is to be released to the landlord. Though the landlord argues that because the underlying judgment in this matter exceeds the amount of the bond, all of the funds should be dispersed to the landlord. The tenant argues that because the ultimate question of title is still pending in the Superior Court, the bond should not be released to the landlord until that matter is fully adjudicated. The tenant also argues that the funds for the bond were provided by the tenant’s sister who seeks the return of such funds. The payment of the bond was required by the court to cover actual costs expended by the landlord as a result of the delay being sought by the tenant and it was intended that unless the Superior Court granted a stay on the physical eviction, the bond would be paid out to the landlord for actual expenses incurred as a result of the delay.

4. At this hearing, the landlord itemized its actual expenses and they differed from those upon which the sum was based. Specifically, the loss in use and occupancy was $3,200, the sheriffs fees were $200, the cancellation fees for the bonded mover were $260,

and attorneys fees were $600. As such, the total amount of the costs incurred by the landlord as a direct result of the stay was $4,260.

5. Conclusion and Order: Accordingly, $4,260 from the bond shall be dispersed by the Clerk’s Office to counsel for the landlord and the remaining $1,340 shall be dispersed to counsel for the tenant.

So entered this day of April, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

CHRISTINA OGG, Plaintiff, v. ROBIN BABA, Defendant.

 

 

Hampshire, ss.

 

 

Docket # No. 09-SP-1119

 

Parties: CHRISTINA OGG, Plaintiff, v. ROBIN BABA, Defendant.

 

Judge: /s/Robert G. Fields

Associate Justice

 

Date: March, 2009

 

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned summary process (eviction) matter came before the court for trial on April 13, 2009, after which the following findings of facts and rulings of law are to enter:

1. Background: The plaintiff, Christina Ogg (landlord), manages a property for her parents who own a three-family house at 43 North Main Street, South Hadley (the premises) where she rents unit #3B to the defendant, Robin Baba (tenant) at a monthly rental amount of $525.

2. The Landlord’s Claim for Possession: The landlord has established the prima facie elements of her claim for possession. Specifically, by agreement of the parties as articulated in the Pretrial Stipulation, the landlord served a rental period termination notice to the tenant for “no fault” on January 29, 2009, and then had her served properly with a summons and complaint. The parties also agree that there is no rent owed at the time of the hearing. What remains for the

 

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court’s determination, therefore, is the tenant’s defense that she is disabled and seeks time to relocate in accordance with G.L. c.239, s.9.

3. G.L. c.239, s.s. 9 and 10; Stay of Proceedings: The tenancy was terminated for “no-fault” and the tenant is entitled to a stay of execution in accordance with the G.L. c.239, s.9 and

s. 10.

4. Order for Entry of Judgment: Accordingly, it is ordered that judgment shall enter for the plaintiff landlord for possession. Execution shall be stayed until May 31, 2009, provided that the tenant pays her current rent for May, 2009 in a timely manner for use and occupancy. Furthermore, this matter is hereby scheduled for review on May 18, 2009 at 9:00 a.m. The court shall entertain a motion for further staying of issuance or use of the execution at that time.

 

 

So entered this day of March, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

GLENN GUZICK, Plaintiff, v. BRENDA KUSNIER, Defendant.

 

Hampshire, ss.

 

 

Docket # No. 09-SP-1014

 

Parties: GLENN GUZICK, Plaintiff, v. BRENDA KUSNIER, Defendant.

 

Judge: /s/Robert G. Fields

Associate Justice

 

Date: April, 2009

 

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned summary process (eviction) case came before the court for trial on April 27, 2009, after which the following findings of facts and rulings of law are to enter:

1. Background: The plaintiff, Glenn Guzik (landlord), owns a twelve-unit apartment building located 19 Culdaff Street in Easthampton, where he rented an apartment (the premises) to the defendant, Brenda Kusnier (tenant) beginning in March, 2006 at a current rental rate of $515 per month. On January 30, 2009, the landlord had the tenant served with a rental period notice to terminating her tenancy.

2. The Landlord’s Claim for Possession: The landlord has established the prima facie elements of his case by assent of the tenant; specifically, that the tenant was served with a notice to quit and a summons and complaint and the parties agreed that the tenant owes $1,480 in outstanding rent. The outcome of the case turns, therefore, on the tenant’s asserted defense which, in essence, is that the parties entered into a payment agreement after the notice to quit and she substantially complied with its terms.

 

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3. The Tenant’s Defense: The tenant claims that she substantially met the terms of the March 9, 2009 agreement of the parties (Agreement) for the payments contained therein. As such, argues the tenant, the landlord should not be allowed to pursue this eviction action. Upon review the agreement and testimony of both parties, it is undisputed that the tenant did not meet all the payment requirements of said Agreement.

4. Order: For the above reasons, judgment shall enter for the plaintiff landlord for possession and for $1,480 plus court costs.

So entered this day of April, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

SHI-HOON KIM, Plaintiff, v. THE VALLEY INN/SERVICE NET INC., Defendant.

 

Hampshire, ss.

 

 

Docket # No. 08-CV-45

 

Parties: SHI-HOON KIM, Plaintiff, v. THE VALLEY INN/SERVICE NET INC., Defendant.

 

Judge: /s/Robert G. Fields

Associate Justice

 

Date: April, 2009

 

ORDER SETTING THE APPEAL BOND

 

After hearing on April 17, 2009 on the plaintiff’s (tenant’s) motion to waive the appeal bond and for setting the bond requirements, at which both parties appeared, the following rulings and order are to enter:

1. Background: On January 11, 2008 the tenant filed an application for a restraining order against the defendant (landlord) claiming that he had been illegally denied access to the subject rental premises. On March 26, 2008 the parties, each represented by counsel, entered into an Agreement of the Parties (Agreement). Pursuant to the terms of the Agreement, the

landlord immediately allowed the tenant to return to live on the premises and waived any and all monies owing to it by the tenant through March 31, 2008. The Agreement also required the landlord to bring a motion in this case if it alleged that the tenant failed to pay his rent and that a finding by the court that the tenant failed to pay his rent without a valid reason to do so could be

 

- 1-

 

grounds for entry of judgment for possession. On March 9, 2009, a hearing was held on the landlord’s motion for entry of judgment for rent owed and for possession. The landlord prevailed, judgment entered on behalf of the landlord for possession and for outstanding rent, and the tenant filed a motion to waive the appeal bond which is the subject of this order.

2. Standard for waiving an appeal bond: The relevant statute regarding the setting, or waiving, of an appeal bond in a summary process matter when a judgment has entered in favor of a landlord and the tenant continues to reside on the premises can be found at G.L. c.239, s.5. [1] In pertinent part, that statute requires a court to “waive the requirement of the bond or security if it is satisfied that the person requesting the waiver has any defense which is not frivolous and is indigent…” At the hearing, the landlord stipulated to the tenant’s indigency. What remains, therefore, is a determination whether or not the tenant has a non-frivolous defense.

3. The tenant made arguments on numerous grounds during the hearing as to why he believes the underlying judgment is incorrect as a matter of law. Only one of those arguments was raised at the original hearing that resulted in the judgment and will be addressed here to measure whether or not such an argument is frivolous [2]. Specifically, the argument is that because the judgment entered due to the tenant’s failure to pay rent ( a violation of the Agreement), and because a portion of the monies sought by the landlord in its motion for entry of judgment was determined by the court to be an illegal monthly fee, the entire Agreement should

 

————————-

[1] Though this case is not technically a Summary Process matter, the parties agreed that if the landlord prevailed on its motion for entry of judgment, said judgment and execution to follow shall be treated as if granted as a result of a Summary Process

matter so that it could be levied as if pursuant to G.L. c.239.

[2] The remaining grounds raised by the tenant are not considered here as they were not raised at the original hearing which resulted in the entry of judgment.

 

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be nullified and the subsequent motion for entry of judgment should have been denied. The tenant predicates this argument on two assertions. First, that when he entered into the Agreement, the bargained for value of the Agreement was “meaningless” because a portion of the monies waived by the landlord were illegal. Second, because a portion of the monies being sought by the landlord in its motion for entry of judgment included funds that were determined by the court to be “illegal fees” the entire motion should have failed.

4. Such arguments do not have merit. The tenant’s first assertion, that the bargained for benefits of the Agreement were undermined by the illegal nature of the fees fails on several grounds. First, the tenant prevailed on the question of the inclusion of the illegal fees at the earlier hearing. As is more fully explicated in my earlier decision, the tenant was credited for every dollar that he had paid for such fees from the beginning of his tenancy and they were deducted from the amount owing to the landlord at the time of the hearing on the landlord’s motion for entry of judgement based on non-payment. In addition, the tenant failed to seek leave of court at any time to modify the terms of the Agreement until the hearing on the motion for entry of judgment when he did so orally. By that time, the tenant was several months in breach of an unequivocal agreed-upon order to pay the rent. In fact, as noted in the earlier decision, the tenant made no payments whatsoever from December, 2008 onward.

5. As to the assertion by the tenant that the motion for entry of judgment should be denied because a portion of the monies being sought by the landlord at the time of the hearing were, as a result of the hearing, determined by me to be illegal fees, I can find no legal basis to

 

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support it. [3]

6. Having determined that the tenant has failed to proffer a non-frivolous defense, the court must set a bond in accordance with G.L. c.239, s.5 which shall include the following costs:

 

“all rent accrued at the date of the bond [being set], all intervening rent, and all damages and loss which the plaintiff may sustain by the withholding of possession of the landlord or tenements demanded and by any injury done thereto during the withholding, with all costs, until delivery of possession thereof to the plaintiff [landlord].”

7. The judgment amount, representing rent owed through March, 2009, after the off-set of the tenant’s damages for the illegal fee, is $689. Additionally, the tenant owes $341 for use and occupancy for April, 2009. Furthermore, the landlord does not own the multi-unit building in which the tenant resides but rather leases it at a monthly rate of $5,292, and the lease expires on April 30, 2009. The

landlord also testified that in anticipation of the termination of the lease, it has emptied the building except for this tenant. As such, the damage and loss which the plaintiff will sustain by withholding of possession will be $5,292 as long as the tenant remains in possession of his unit.

8. Conclusion and Order Setting the Bond: Therefore, the bond shall be set as follows:

A. The tenant shall pay to the landlord $1,030, within seven days of the entry date of this order (noted below), .

 

————————-

[3] The tenant also argued at the motion for the waiver of the appeal bond that he was denied summary process in accordance with G.L. c.239. As noted in Footnote #1, the parties stipulated that if judgment for possession entered it would be as if brought by G.L. c.239. Furthermore, in addition to said stipulation, the court, sua sponte at the hearing of the landlord’s motion for entry of judgment, asked counsel for the tenant whether or not there was any defense to the motion based on the fact that this was a civil matter and not a summary process action. Counsel said that there was no such defense and, in fact, the parties had agreed that if the landlord prevailed on its motion for entry of judgment it could obtain an execution issued for possession, as if this matter was one in summary process.

 

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representing use and occupancy accrued through the date of the bond;

B. The tenant shall also pay $5,292 each month for use and occupancy and damages and costs by the first week of each month beginning May, 2009 pending appeal or until possession of the subject premises is returned to the landlord, whichever occurs first.

 

So entered this day of April, 2009.

 

 

 

 

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End Of Decision

HOUSING COURT

CHICOPEE HOUSING AUTHORITY v. JESSICA TORRES

 

 

Hampden, ss.

 

 

Docket # 07-SP-4425

 

Parties: CHICOPEE HOUSING AUTHORITY v. JESSICA TORRES

 

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

 

Date: April, 2009

 

ORDER

 

After hearing on April 14, 2009 on the defendant’s (tenant’s) emergency motion to stop the physical eviction, at which both parties appeared, the following order is to enter:

 

1. Due to the insufficiency of the constable’s “forty-eight hour notice” (attached and incorporated herein), the tenant’s motion is hereby ALLOWED and the physical eviction currently scheduled shall be cancelled.

2. The “forty-eight hour notice” fails to comply with the relevant statute, G.L. c.239, s.3.

3. Specifically, G.L. c.239, s.3 requires that the officer levying upon the execution give to the defendant (tenant) written notice at least forty-eight hours in advance of the physical move-out. Furthermore, the notice must contain certain information that is detailed in the statute including:

 

–a statement that the warehouser’s storage rates may be ascertained by contacting the commissioner of public safety and the address and telephone of such agency (section 4 of the third paragraph);

 

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- a statement that the warehouser may sell at auction any property that is unclaimed after 6 months and may retain that portion of the proceeds necessary to compensate him for any unpaid storage fees accrued as of the date of the auction, except as provided in section 4 (section 5 of the third paragraph) ;

 

- a statement that the defendant should notify the wharehouser in writing at the business address listed in the notice of any change in the defendant’s mailing address (section 6 of the third paragraph).

 

- said notice is to be filed in the court. (last line of the third paragraph).

 

4. Beyond the fact that it is required by statute, including the referenced language, the forty-eight hour notice serves the important purpose of providing the tenant with important information regarding the consequences of levying on the execution. The forty-eight hour notice is the only notice the tenant receives that there will be charges associated with storing her possessions, and that the wharehouser may sell her belongings at auction. Not only is this information necessary in order for the tenant to respond meaningfully to the forty eight hour notice itself, and make decisions associated therewith, it is also essential to the tenant’s ability ultimately to recover her belongings.

5. The notice in this matter failed to contain any of the provisions noted above and was not filed with the court.

6. As such, the notice is invalid, the plaintiff (landlord) must cancel the physical eviction currently scheduled and, if the landlord wishes to levy in the future, it must re-serve a written notice in accordance with G.L. c.239, s.3.

 

So entered this______day of April, 2009.

 

 

 

 

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[SEE TEXT FOR ATTACHMENT]

 

 

 

End Of Decision

 

 

HOUSING COURT

SHI-HOON KIM V. THE VALLEY INN/SERVICE NET INC.

 

Hampshire, ss:

 

 

Docket # 08-CV-45

 

Parties: SHI-HOON KIM V. THE VALLEY INN/SERVICE NET INC.

 

Judge: /s/Robert Fields, Associate Justice

 

Date: March 31, 2009

 

ORDER

 

After hearing on March 9, 2009 on the defendant’s motion for entry of judgment for possession, at which both parties appeared with counsel, the following rulings and order are to enter:

1. Background: On January 11, 2008 the plaintiff (hereinafter “Mr. Kim”) filed an application for a restraining order against the defendant (hereinafter “Valley Inn”) claiming that he had been illegally denied access to the premises located at 209 Locust Street in Florence, MA. On March 26, 2008 the parties, each represented by counsel, entered into an Agreement of the Parties (hereinafter “Agreement”). Pursuant to the terms of the Agreement, Valley Inn immediately allowed Mr. Kim to return to live on the premises and waived any and all monies owing to it by Mr. Kim through March 31, 2008. The Agreement also required Valley Inn to bring a motion in this court if it alleged that Mr. Kim failed to pay his rent and that a finding by the court that Mr. Kim failed to pay his rent without a valid reason to do so could be grounds for

 

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entry of judgment for possession.

2. Findings: This publically subsidized tenancy is regulated under the Department of Mental Health Rental Subsidy Program at 760 CMR 38. The tenancy is administered, and the rent is calculated, by HAP on an annual basis with a monthly rent presently calculated at $341. The lease also requires Mr. Kim to pay a $75 monthly fee (hereinafter “Fee” or “Fees”) in addition to the rent. This Fee is paid to the landlord for a variety of monthly costs such as utilities (including heat, hot water, electricity), local phone service, trash disposal, and cable television.

3. Mr. Kim did not pay his rent in December, 2008, nor for the months of January through March, 2009. Based on this failure to pay rent, Valley Inn filed the instant motion for entry of judgment. Over the course of the tenancy, Mr. Kim paid $675 in monthly Fees.[1] Since April, 2008 (monies owed for rent prior to that date were waived by agreement), Mr. Kim has paid $3,069 in rent but failed to pay $1,364 in rent for the four months preceding the hearing on the motion for entry of judgment. Additionally, Mr. Kim did not pay his Fee for those same four months.

4. Discussion: Valley Inn argues that Mr. Kim’s failure to pay rent since December, 2008 establishes a sufficient basis for the entry of judgment pursuant to the Agreement. Mr. Kim argues that the Fee is illegal and, therefore, Valley Inn owes him the amount equal

to all of his Fee payments that he has made since he moved onto the premises in October, 2007. Mr. Kim argues that the Fee is illegal because it charges him, as a tenant, for use of utilities without

 

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[1] This represents payments of the $75 fee for nine months; October, 2007 and April through November, 2008.

 

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separately metering for same and because it transfers the obligation to pay for trash removal; both in violation of the State Sanitary Code. [See, 105 C.M.R. 410.354 (Metering of Electricity and Gas) and 105 CMR 410.601 (Collection of Garbage and Rubbish)].

5. It is undisputed that Mr. Kim failed to pay his rent and, thus, the pertinent part of the Agreement (at paragraph #11) is triggered and the landlord is justified in bringing a motion for entry of judgment. The Agreement allows in that same paragraph, however, for Mr. Kim to show that the basis for his non-payment was for a “valid reason.” Though it would have been a much preferred method for Mr. Kim to have brought this matter to the attention of the court at the time that he decided to not pay his rent based on the alleged illegality of the Fee, the parties agreed in the Agreement that Mr. Kim would have an opportunity to prove the validity of any non-payment at a hearing on Valley Inn’s motion for entry of judgment.[2]

6. In order for the court to determine whether Mr. Kim’s non-payment was for a “valid reason,” I must first determine whether or not the Fee is illegal. I find that the Fee is illegal under the State Sanitary Code which prohibits the charge for gas and/or electricity services to a tenant unless the unit he occupies is separately metered. (105 CMR 410.354) Similarly, the State Sanitary Code prohibits the charge for trash removal to a tenant in a dwelling that contains three or more dwelling units. (105 CMR 410.601). The Fee in this tenancy is applied to both of these types of services and Mr. Kim’s obligation to pay this Fee is voided both retroactively and prospectively. As such, Valley Inn is required to credit Mr. Kim a sum equal to all of the monies he paid towards these monthly Fees totaling $675.

 

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[2] Typically, and appropriately, when a party in required to make rent payments pursuant to an agreement in court and believes that they have a basis for withholding said payments, that party brings a motion and seeks leave of the court to amend the court agreement.

 

- 3-

 

7. Even after crediting Mr. Kim this amount, however, he still owes Valley Inn an additional $689 in rent through March, 2009 (four months’ non-payment at $341 = $1,364 minus nine months of Fee payments at $75 = $675). Though not preferable to seeking leave of court, as previously mentioned, Mr. Kim could have at least began paying his rent after deducting for the $675 in illegal Fee payments.

He did not and the court rules in favor of Valley Inn on its motion for entry of judgment.

8. Conclusion: Judgment for possession and for $689 shall enter for the defendant, Valley Inn. As discussed above, these damages reflect a deduction from the total amount outstanding for the Fees paid to date by Mr. Kim.

So entered this, 31st day of March, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

SCOTT and KATHLEEN CABLE v. MARK BISSONETTE and CINDY MASTROIANNI

 

Hampden, ss:

 

 

Docket # 09-CV-37

 

Parties: SCOTT and KATHLEEN CABLE v. MARK BISSONETTE and CINDY MASTROIANNI

 

Judge: /s/Robert Fields, Associate Justice

 

Date: March, 2009

 

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned matter came before the court for trial on March 31, 2009, after which the following findings of facts and rulings of law are to enter:

1. Background: The plaintiffs, Scott and Kathleen Cable (landlords), own a two family house at 1018 Pleasant Street in Palmer, where they rented (the premises) to the defendants, Mark Bissonette and Cindy Mastroianni (tenants) until they vacated the unit in December, 2008. The matter was transferred to the regular civil docket because the tenants had moved out after the filing summary process action but prior to the trial.

2. The Landlord’s Claim for Rent: The parties agreed that the tenants were not obligated to pay rent for first four months of their occupancy, September through December, 2007. The parties also agree that the monthly rent was $500 during the winter months and $600 all other months. Though the amount of rental arrearage was not stipulated by the parties, I find that the landlords’ accounting of the rent is accurate and the outstanding balance of unpaid rent is

 

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$3,150. This sum is based on non-payment in January, February, September, October, November and half-December, 2008.

3. Tenant’s defenses and counterclaims: What remains for the court’s determination, therefore, are the tenants’ counterclaims as asserted in their Answer. These include claims that the there existed conditions of disrepair that the landlords knew about but failed to repair, that the landlords entered the tenants’ apartment without permission on several occasions, and that the landlords allowed the water service to the premises to be terminated by the town.

4. Warranty of Habitability: Though the tenants asserted a claim of mice infestation in their Answer, they did not provide any testimony at the hearing on this issue. The one condition described by the tenants was that the house was very drafty. The tenants did not give much detail on this issue other than to say that it was

costly to heat during the winter months, approximately $275 each month. Without any other evidence provided, the court does not have a basis upon which to determine if the house was particularly draft or not and, thus, the tenants are not awarded any damages on this claim.

5. Breach of the Covenant of Quiet Enjoyment; Entry without Permission: The tenants testified that the landlords, specifically Kathleen Cable, entered their apartment during the summer of 2008 on several occasions when the tenants were present without their permission. The landlords denied this allegation and explained that on each occasion, Mrs. Cable was allowed entry by the tenants’ father who was staying with the tenants at the time. The tenants did not dispute this assertion and the court, therefore, does not find that the tenants’ covenant of quiet enjoyment was breached in this regard.

 

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6. Breach of the Covenant of Quiet Enjoyment; Water Shut-Off The tenants assert a claim that their covenant of quiet enjoyment was breached when the water service to their apartment was terminated by the town of Palmer in October, 2008 (or at some point in the fall of 2008, the parties could not remember). The landlords are liable for breach of the covenant of quiet enjoyment if the natural and probable consequence of their acts (or failures to act) causes a serious interference with the tenancy or substantially impairs the character and value of the premises. G.L. c. 186, s. 14; Simon v. Solomon, 385 Mass. 91, 102, 431 N.E.2d 556, 565 (1982). Although a showing of malicious intent in not required, “there must be a showing of at least negligent conduct by a landlord.” Al-Ziab v. Mourgis, 424 Mass. 847, 851, 679 N.E.2d 528, 530 (1997).

7. The landlords testified that they were aware of the outstanding water bill and the termination date but were under the assumption that the tenants were gong to vacate by that day. Further, the landlords point out that the cessation of water service lasted only one day, as they paid the bill the day following the shut-off I find and rule that under these circumstances the landlords were “at least negligent” and breached the covenant of quiet enjoyment in violation of G.L. c. 186, s. 14 by failing to take the steps necessary to determine whether the tenants had vacated (they had not) and in failing to avoid the termination of the water service to the premises. No greater damages having been proved, a finding is to enter for the tenants in this claim in the amount of three months’ rent, totaling $1,800.[1]

9. Order for Entry of Judgment: For the above reasons, a judgment shall enter for the plaintiffs, Scott and Kathleen Cable, in the amount of $1,350 plus court costs. This represents

 

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[1] As discussed above, the parties had an arrangement that the rent in the written lease was $600 per month but the landlords accepted a reduced amount of $500 for the winter months. This calculation is based on a monthly rental rate of $600 as stated in the lease.

 

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the award to the tenants of $1,800 subtracted from the outstanding rent amount of $3,150. So entered this_____day of March, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

CITY OF HOLYOKE v. MAURICE V. SPEAR, JR.,

 

Hampden, ss.

 

 

Docket # 08-CV-1063

 

Parties: CITY OF HOLYOKE v. MAURICE V. SPEAR, JR.,

 

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

 

Date: April, 2009

 

FINDINGS, RULINGS AND ORDERS ON THE PLAINTIFF CITY OF HOLYOKE’S MOTION FOR ORDER OF ENFORCEMENT

 

This matter is before the court on motion of the plaintiff City of Holyoke (“the City”) seeking an order of enforcement against the defendant Maurice V. Spear, Jr. (“the defendant”). After an evidentiary hearing on March 10, 2009, for which both parties appeared, and after review of the written submissions, the following Findings, Rulings, and Order are to enter:

1. Findings: The defendant purchased certain residential property located at 20 Worcester Place, Holyoke (“subject property” or “premises”) by quit claim deed on or about January 11, 1990 for $220,000. The premises contains a three-story apartment building (“the Building”) which has remained vacant since approximately 1996.

2. On or about January 12, 1996, the mortgagee of the premises, Fleet Bank, filed a petition in Land Court to foreclose. No evidence was presented, however, that the bank in fact foreclosed on the subject property.

3. On February 28, 1996, the City recorded a notice of tax taking at the Hampden County Registry of Deeds based on the defendant’s failure to pay property taxes on the subject property.

 

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On or about January 17, 2001, the City filed a petition in Land Court to foreclose on its tax lien. The defendant failed to file an answer or an appearance in those proceedings. In August, 2005, the defendant filed a “Consent and Waiver,” purporting to waive his rights to redemption and consent to the entry of a foreclosure decree. No judgment was ever entered in those proceedings.

4. The Building is in various stages of disrepair, and has been in longstanding violation of local and state building codes. Bricks and mortar consistently fall from the building, making it unsafe. Because the Building is open to the elements in certain areas, it will continue to deteriorate. The City has taken some steps to secure the Building, including removing hanging porches.

5. On January 30, 2008, the City served the defendant with a “Notice of Violation and Order” (“Order”) pursuant to the State Building Code (“the Code”), which order required the defendant demolish the subject property within 10 days. The defendant appealed the Order to the State Building Code of Appeals (“Board”), on the basis that he did not own the subject property.[1] On or about June

6, 2008, the Board dismissed the appeal, finding that the issue of ownership of the premises must first be resolved by the Land Court.[2]

6. On June 16, 2008, the City filed the instant action seeking to enforce the Order. On August 19, 2008, the court allowed the defendant’s motion to stay the case for 60 days to allow the parties time to resolve the ongoing foreclosure proceedings in the Land Court. On or about

 

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[1] The City served the defendant with a similar order in 2005, and the defendant also appealed on the basis that he did not own the subject property. The City failed to appear at the appeal hearing, and the Board found that the defendant was not legally obligated to remove the Building.

 

[2] It is worth noting that the defendant did not contest the merits of the Order at the time of his appeal.

 

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October 7, 2008, the City withdrew its petition to foreclose on the subject property.

7. In November, 2008, the City’s Survey Board inspected the subject property and subsequently issued a report. Based on the dangerous and unsafe condition of the building, the Survey Board requested that the City cause the structure to either be demolished or made safe. At the hearing, the Survey Board’s architect, Tim Murphy, testified that it may be possible to secure the building, rather than demolish it. The initial cost estimates of demolishing the building is approximately $69,950. The cost of securing the Building is unknown at this time.

8. Discussion: The defendant contends that he is legally incapable of complying with the Order because he does not own the subject property. Since title vested with the City when it recorded its instrument of taking, he argues that he is no longer an “owner” for purposes of this action.[3] This is incorrect as a matter of law.

9. While it is true that title vested with the City upon taking the subject property for unpaid taxes, title was taken subject to the defendant’s right of redemption. Hanna v. Town of Framingham, 60 Mass.App.Ct. 420 (2004). At no time since recording its instrument of taking has the City foreclosed upon, or taken possession of, the subject property. Until such time as a foreclosure decree is actually entered, the defendant may still redeem the subject property. Id. at 424-25. Because he continues to hold “an unforeclosed right of redemption in fee interest in land taken for unpaid taxes, and [because he is] still in possession of such land, [he] qualifies as an

 

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[3] The Code defines an “owner” as:

[E]very person who alone or jointly with others (a) has legal title to any building or structure; or (b) has care, charge, or control of any building or structure in any capacity . . . or (d) mortgagee in possession;

780 CMR 202.0

 

 

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owner … within the meaning of [the Code].” Id. at 425 (internal quotations omitted).

10. The defendant also contends that he should not be liable for the condition of the Building based on several equitable doctrines. This argument additionally must fail. First, as acknowledged by the defendant, laches and estoppel do not apply to municipalities. Nor do any of the limited exceptions to this rule noted by the defendant appertain in this circumstance. Merely because the City has other avenues available to it to pursue does not relieve the defendant of his legal obligation to comply with the Code. Second, he contends that he was lulled into believing that the City had accepted his abandonment of the subject property because the City could have, but chose not to, obtain a judgment by default in its Land Court action. This argument is equally unavailing, as it does not change the fact that the defendant is the owner of the subject property and legally responsible for its condition until his redemption rights are actually foreclosed upon. Third, whether the defendant is financially capable of complying with the Order is irrelevant at this stage of the analysis. The court is bound to apply the law and must issue necessary corrective orders accordingly.

11. Finally, the defendant argues that even assuming he is the owner of the Building and required to comply with any enforcement orders, such orders must give him the option of either demolishing the Building or securing it. Here, the court agrees with the defendant. G.L. c. 143, s. 6 provides that upon finding an unsafe building, the City’s inspector shall order the owner to “remove it or make it safe if it appears to him to be dangerous, or to make it secure if it is unused, uninhabited or abandoned and open to the weather.” Additionally, the November 5, 2008 Report of the Survey Board seeks to “cause the building to be made safe or taken down or made secure.” Finally, on this point, the city’s witness Timothy Murphy, a Registered Architect

 

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and member of the Survey Board, testified that he believes that it is possible to make the building safe short of demolition.

12. Order: Based on the foregoing, the City’s motion for an order of enforcement is allowed in part and the defendant is hereby ordered to cause the Building to be made safe or taken down or made secure. Furthermore, the defendant has thirty days from the date of this order to file and serve a written plan to effectuate the court’s order. The Clerks Office of the court shall schedule a hearing to review the defendant’s proposed plan.

So entered this_______day of April, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

CHARLIE DAVIGNON v. BRIAN STEELEY

 

Hampden, ss.

 

 

Docket # 09-SP-653

 

Parties: CHARLIE DAVIGNON v. BRIAN STEELEY

 

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

 

Date: April, 2009

 

ORDER

 

After hearing on April 2, 2009, on the defendant’s motion to waive the appeal bond, at which both parties appeared, the follow order is to enter:

1. Background: A summary process trial was held on March 5, 2009 and Finding, Rulings and Order were issued on March 11, 2009. The court awarded the tenant $400 on his counterclaims and, in accordance with G.L. c.239, 8A, ruled that if the tenant paid a sum of $1,300 into the court within ten days of the entry date of the order, judgment would enter on his behalf for possession of the premises. On March 20, 2009, the tenant timely paid into the court the sum of $1,300. On March 21, 2009 a judgment entered for possession on behalf of the tenant. On March 30, 2009 the tenant filed a Notice of Appeal and a Motion to Waive Appeal Bond.

2. Discussion: G.L. c.239, s.5 requires that an appeal bond be posted in cases where the landlord continues at the time of the establishment of a bond to seek possession. Where, as here, possession has already been awarded the tenant, the court has no authority to require a bond. See

 

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Bina v. Haddad, Boston Division Housing Court 03-SP-3609 (Pierce, J. 2004). The tenant in the instant matter is seeking an appeal from a money judgment only, as he has prevailed on the possession issue. The court does not have authority to order the posting of a bond in cases involving an appeal from a money judgment. See Borne v. Haverhill Gold and Country Club, Inc., 58 Mass. App. Ct. 306, 326 (2003).

3. Order: For the reasons set forth above, no bond is ordered in this matter. Furthermore, the Clerks Office shall disburse the $1,300 paid into the court by the tenant to the landlord in accordance with G.L. c.239, s.8A and shall prepare the case file in accordance with the Rules of Appellate Procedure.

So entered this_________day of April, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

MICHAEL’S HOUSE v. JANICE PYDYCH

 

Hampshire, ss.

 

 

Docket # 08-SP-3393, 08-CV-732

 

Parties: MICHAEL’S HOUSE v. JANICE PYDYCH

 

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

 

Date: april, 2009

 

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT IN CIVIL

CONTEMPT PROCEEDINGS

 

After hearing on April 13, 2009, on the civil contempt trial, at which both parties appeared, the following findings, ruling and order for entry of judgment are to enter:

1. Background: This summary process case was filed on September 15, 2009 based on alleged violations of the lease terms stemming from the defendant’s (tenant’s) cluttering of her apartment to such a degree that it posed a safety risk to the defendant and to the other residents and visitors to the apartment building. Based on the evidence presented in several hearings and reviews, the court determined that the tenant was disabled, that her cluttering did in fact pose a safety risk to others, and that a reasonable accommodation included cooperative efforts to de-clutter the tenant’s apartment. After numerous agreements, hearings, and court orders, two recent orders issued by the court after hearing on March 25, 2009 (hereinafter “March 26th Orders”) required that the tenant vacate the unit while the bulk of her belongings were removed

 

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and placed in storage and then allowed the tenant to reoccupy the unit with restrictions placed on her ability to bring items back into the unit. After the “clearing out” of the tenant’s apartment on April 1, 2009, she returned the following day with a shopping cart of belongings and the plaintiff (landlord) filed a complaint for contempt based on the tenant’s bringing such belongings into the unit without leave of court.

2. Discussion: On April 2, 2009, the tenant returned to her apartment. She did so pushing a shopping cart full of her belongings. Due to the difficult and arduous history of this case and the restrictions imposed by the March 26th Orders, which identified specifically what items could remain in the apartment and required the tenant to not bring in “any belongings” without leave of court, it is understandable why the landlord commenced contempt proceedings upon the tenant’s returning to the unit with a shopping cart brimming with personal items. The landlord did not ascertain, however, exactly what was in the cart nor articulate at contempt hearing which specific items were in violation of the March 26th Orders.

3. The tenant admits that she returned to the premises on April 2, 2009 pushing a shopping cart full of her belongings. Among the items in the cart were clothes, food, cleaning supplies, a nebulizer and medications, plates and silverware. The tenant also stated that she had her Personal Care Attendant (PCA) remove from the apartment items that she realized were duplicated in the apartment.

4. Much of the analysis by the court focuses on whether the items in the tenant’s cart on April 2, 2009 violated the court’s March 26th Orders. The March 26th Orders allowed for, among other things, “eight outfits… medical supplies… and kitchen utensils.” The eight outfits that are allowed were not left in the closet by the moving company on April 1, 2009. As such, the tenant

 

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can bring in eight outfits of clothing and testified that she brought in three outfits in the shopping cart on April 2, 2009. The March 26th Orders also allow for medical supplies. The tenant testified that among her belongings in the cart on the day in question were medical supplies including a nebulizer that she needed when staying at friends’ homes while the moving was taking place. These items are not in violation of the March 26th Orders. The tenant also included

kitchen utensils in her shopping cart. She explained that she wasn’t sure what utensils and plates had been left behind in the unit so she brought several utensils which may have increased her allotment of utensils beyond the court order but that she had her PCA bring down any redundant items. Though a better practice would have been to visit the unit prior to bringing in the shopping cart, the tenant testified that she was particularly exhausted from the ordeal and two trips up and down posed a much more physically demanding alternative.

5. The remainder of the tenant’s items in her shopping cart on the day in question consisted of laundered clothing, consisting mostly of undergarments, several items of food, and her purse. Here, it is clear that even with the best efforts of the parties and the court, the March 26th Orders failed to address food, clothing other the “eight outfits”, and the tenant’s purse. Clearly, within reason, the tenant must be allowed to bring in such items routinely without requiring leave of court.

6. Order and Conclusion: Based on the evidence analyzed above, judgment shall enter in favor of the tenant and a ruling that she was not in contempt of the March 26th Orders shall enter at this time. Furthermore, the March 26th Orders shall be amended to allow the tenant to bring laundered undergarments, food and her purse into the unit without leave of court. Given the history of this tenancy, the landlord’s concerns about the tenant re-cluttering the unit are

 

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justified. As such, periodic inspections are necessary to ensure compliance with the court’s orders. The parties, therefore, shall file an agreement with the court that outlines an agreeable inspection protocol. If the parties can not reach agreement, a hearing shall be marked by the parties for the setting of such a protocol by the court.

So entered this_______day of April, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

TOWN OF BERNARDSTON, by and through its BOARD OF HEALTH v. ERIC C. EMOND and SUSAN K. EMOND

 

Franklin, ss.

 

 

Docket # 09-CV-417

 

Parties: TOWN OF BERNARDSTON, by and through its BOARD OF HEALTH v. ERIC C. EMOND and SUSAN K. EMOND

 

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

 

Date: April, 2009

 

ORDER

 

The above-captioned matter is before the court plaintiff’s motion for a preliminary injunction. Upon consideration of the parties’ submissions and arguments, the motion is allowed.

1. Facts: The plaintiff, Town of Bernardston (“the Town”) adopted regulations in regards to the use of Outdoor Wood Boilers (“OWB”) and cited the defendants (“the Emonds”) because the location of their outdoor wood boiler (“wood boiler”) violates the set back requirements of the town’s OWB regulations (“the Town’s Regulations”). Though the Town has instructed the Emonds to cease use of their wood boiler, they have continued to use it to heat their home. The Town has filed a verified complaint and motion for a permanent injunction, seeking a court order that the Emonds cease the use of their wood boiler until it is brought into compliance with the Town’s Regulations.

2. The parties agree that the type of wood boiler in question, owned and operated by the

 

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Emonds at their home located at 437 Bald Mountain Road in Bernardston, is required by the Town’s Regulations to be located no less than “50 feet from the house” it serves and no less than “400 feet from any other occupied structure.” Town of Bernardston Board of Health Outdoor Wood Boiler Regulations, Adopted 3/7/07, Section E2. The parties agree further that the Emonds’ wood boiler is located less than 50 feet from their home and less than 400 feet from the closest occupied structure and, thus, in violation of the Town’s Regulations.

3. On May 15, 2008 and again on January 3, 2009 the Town sent letters to the Emonds directing them to cease and desist use of their wood boiler. To date, no action has been taken by the Emonds to comply with the setback requirement of the Town’s Regulations. The Emonds have failed to cease use of the wood boiler. The Emonds have not appealed any of the Town’s orders relative to the use of their wood boiler. The Emonds have a oil-based heating system in their home that can be used if they can not heat with their wood boiler.

4. Discussion: The Town has met its burden of proof for the issuance of a preliminary injunction. There is no dispute, in fact, that the boiler’s location is in violation of the Town’s Regulations. The Emonds’ position is that the Town’s Regulations are not based on “scientific justification” and that there are no complaints being voiced against the Emonds’ wood boiler. The Emonds’ position is that the State regulations are the ones which should be followed by the parties herein. Not because they supersede the Town’s Regulations, argues the Emonds, but because they are based on real scientific standards.

5. The Emonds, however, failed to provide any evidence that the Town’s Regulation was “illegal, arbitrary, or capricious.” See, Padden v. West Boylston, 446 Mass. 310 (2005), citing Tri-Nel Mgmt., Inc. V. Board of health of Barnstable, 433 Mass. 217 (2001). The Emonds failed,

 

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in fact, to introduce any evidence at the hearing that the Town’s Regulations were improperly established or based on faulty or insufficient science.

6. Conclusion and Order: Based on the undisputed evidence that the Emonds’ wood boiler is located in violation of the set back requirements of the Town’s Regulations, the Emonds are hereby ordered to cease and desist use of their wood boiler located at 437 Bald Mountain Road in Bernardston, Massachusetts until either further

court order or by agreement of the plaintiff. This matter shall be scheduled for a Case Management Conference with the Clerk’s Office for scheduling of discovery, pretrial matters and a trial on the merits.

So entered this__________day of April, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

CITY OF SPRINGFIELD CODE ENFORCEMENT DEPARTMENT v. CRE BASE THREE, LLC, et al.

 

Hampden, ss.

 

 

Docket # 08-CV-761

 

Parties: CITY OF SPRINGFIELD CODE ENFORCEMENT DEPARTMENT v. CRE BASE THREE, LLC, et al.

 

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

 

Date: April, 2009

 

ORDER

After hearing on April 6, 2009, on plaintiff’s motion for appointment of a receiver, at which all parties appeared, the following interim order is to enter:

 

1. The motion is provisionally allowed but no order shall enter for appointment of the receiver, Premier Properties, until the potential receiver’s application is filed and approved by the court.

2. The defendant, CRE Base Three, LLC (hereinafter “defendant”) is hereby ordered not to transfer, diminish or cause to be diverted any funds disbursed to it from insurance proceeds being paid it for the fire at the subject premises until further order of the court. This sum, estimated by defendant’s counsel to be $163,000, shall not be converted, encumbered, or otherwise used by the defendant until further order of the court.

 

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3. Until further order of the court, the defendant shall continue to be obligated to make any and all required repairs at the premises.

4. Further hearing is scheduled in this matter on April 13, 2009 at 2:00 p.m.

 

So entered this____day of April, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

DEUTSCHE BANK NATIONAL TRUST COMPANY, et al. v. GLENN E. CARPENTIERI

 

Hampden, ss.

 

 

Docket # 09-SP-1168

 

Parties: DEUTSCHE BANK NATIONAL TRUST COMPANY, et al. v. GLENN E. CARPENTIERI

 

Judge: /s/Robert Fields, Associate Justice

 

Date: April, 2009

 

ORDER

 

After hearing on April 23, 2009 of a summary process trial, at which both parties appeared, the following rulings and order are to enter:

 

1. The parties stipulated to the plaintiff’s (landlord’s) case for possession of the premises located at 313 Talmadge Drive, Springfield, MA. The landlord purchased the property at foreclosure auction on January 5, 2009, sent a valid “notice to quit” to the tenant on or about January 16, 2009 and had the summons and complaint served upon the tenant on March 27, 2009.

2. The tenant is the former owner of the premises. He resides there with his wife, Maryanne Carpentieri. The tenant is disabled and receives benefits from the Social Security Administration for those disabilities. Mrs. Carpentieri receives foster payments for the care of her granddaughter.

3. The tenancy was terminated for “no-fault” and the tenant is entitled to a stay of execution in accordance with the provisions of G.L. c.239, s.s.9 and 10. See, G.L. c.239, s.s.9 and 10; Federal National Mortgage Association

 

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v. Fred Gabriel, et al. (Boston Housing Court No. 96-1968; Winik, J. 1996); GE Capital Mortgage Services v. James S and Laine Butterworth, (Boston Housing Court No. 96-3256; Daher, J. 1996).

4. Accordingly, and consistent with the general equity powers of this court, judgment for possession shall be entered on behalf of the plaintiff landlord. Execution shall be stayed until further order of the court contingent upon the tenant paying $900 by the first week of May, 2009 for use and occupancy.

5. A review in this matter shall be scheduled for May 26, 2009 at 9:00 a.m. to determine if the stay of the issuance of the execution shall be continued.

 

So entered this______day of April, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

No. 09-SP-914

 

Western Division

 

 

Docket # FIRST RESOURCE MGMT. CITY VIEW COMMONS II, Plaintiff, v. YURLY TITAR, Defendant.

 

Parties: No. 09-SP-914

 

Judge: /s/Robert Fields

Associate Justice

 

Date: May, 2009

 

ORDER OF DISMISSAL

The above-captioned summary process (eviction) case came before the court for trial on April 23 2009, after which the following findings of facts and rulings of law and order of dismissal are to enter:

1. Background: The plaintiff (landlord) purchased the subject premises in September, 2008. The named defendant, Yuriy Titar, and his family moved into the subject premises in May, 1993, some fifteen years earlier. Mr. Yuriy Titar moved out of the premises in August, 2006. Mr. Titan’s wife (Luybov) and son (Igor Titar) continue to reside on the premises. (Luybov and Igor Titar shall hereinafter be referred to as “the Titars”). In accordance with an agreement filed in a prior housing court matter (07-SP-4439) between the former owners of the premises and the Titars, the rent was reduced to $305 due to conditions of disrepair. The Titars were paying that amount when the landlord purchased the property in September, 2008 and have continued to pay that amount continuously since that time. The landlord commenced this

 

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eviction action for the difference between what the Titars pay each month and the amount the landlord has assessed the rent should be, $695.

2. Failure to name the correct parties: As noted above, the named defendant Yuriy Titar has not resided on the premises since

August, 2006. A document reflecting his vacating the unit is, or should be, in the office files inherited by the landlord when it purchased the premises from the former owners. The landlord should have also been aware of the names of the actual occupants of the premises, as both Luybov and Igor Titar pay their rent each month with money orders that have their names on it. The Titars are also named as occupants, along with Yuriy Titar, on an expired lease which the landlord has in its files. Even with all of this information, the landlord failed to name the tenants in this action. Though the actual tenants did appear for the hearing and the court may under other circumstances have entertained a motion to amend the complaint to include the Titars as party-defendants (though no motion was filed), in the instant matter it would be futile to do so as this case is dismissible on separate grounds. Specifically, the Titars have been paying their rent each month and the landlord accepted that payment without reservation from September, 2008 through January, 2009 (arguably until the February 10, 2009 Notice to Quit). As such, the landlord’s summary process action based on non-payment of rent would have, otherwise, been dismissible.

3. Order: For the foregoing reasons, this summary process matter is hereby DISMISSED.

 

So entered this day of May, 2009.

 

 

 

 

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End Of Decision

 

HOUSING COURT

KATHLEEN STEVENS-ARVANITIS, Plaintiff, ORDER v. KERRI ANN STEVENS, Defendant.

 

Western Division

 

 

Docket # No. 09-CV-592

 

Parties: KATHLEEN STEVENS-ARVANITIS, Plaintiff, ORDER v. KERRI ANN STEVENS, Defendant.

 

Judge: /s/Robert Fields

Associate Justice

 

Date: May , 2009

 

ORDER

After hearing on May 6, 2009 on the plaintiff’s (landlord’s) application for an emergency order, at which the landlord appeared but the defendant (tenant) did not appear, the following order is to enter:

1. BACKGROUND[1]: The landlord owns a single family house, located at 101 Vadnais Street in Springfield, which she rents to the tenant. The tenancy began in mid-November, 2008. The arrangement was that the rental does not include utilities and that the tenant would be responsible for, among other things, the heat. The tenant explained to the landlord that she would need until December 1, 2008 to put the heat in her own name. The landlord, who had the heat on in her own name during the time directly preceding the tenancy while the premises were vacant, agreed to keep the heat in her name until December 1, 2008. The tenant agreed to compensate her for the heating costs for the interim two weeks. The tenant never had the heat

 

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[1] These facts were derived from the landlord’s testimony. Because the tenant did not appear, there are no contrary facts being asserted at this time.

 

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put in her name, though she did repay the landlord on two occasions for heating bills. Other than those two instances, however, the tenant has not made any payments to the landlord for heating costs.

2. The landlord has continued to maintain the heat account in her own name but now she has accrued a significant heating bill and reports that the utility company is threatening to turn off the heat and shut off the other accounts of the landlord regarding other vacant rental premises.[2] In an effort to avoid this from happening and to avoid having to pay the bill herself, the landlord seeks an order from this court that requires the tenant put the heat utility into her own name.

3. DISCUSSION: The court is mindful of the requirement of the State Sanitary Code (105 C.M.R. s.s.410.190, 410.201, and 410.354) that the transfer of the obligation to a tenant to pay for heat and hot water be in a written letting agreement. The court is also mindful of the requirements of G.L.c.186, s.14 which prohibits a landlord from transferring the obligation to pay for utilities without her knowledge or consent. Nevertheless, the court is being asked here to require the tenant to be responsible for the heat of the premises. The tenant was summoned to appear on two separate occasions and did not appear.[3] With no assertions to contradict the testimony of the landlord, it appears that the obligation of the tenant to pay for the heat was with her knowledge and consent and that the court is being asked to enforce the terms agreed to by the parties at the commencement of the tenancy.

 

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[2] The landlord testified that the bills approximate $850 but did not introduce any bills into evidence.

 

[3] The case was originally scheduled for May 1, 2009 (with service of the summons by constable in hand) but due to there not being a judge available at that time, the matter was rescheduled for hearing on May 6, 2009 with notice sent by the court.

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4. CONCLUSION AND ORDER: Based on the foregoing reasoning, the following order is to enter:

 

1. The tenant, Kerri Ann Stevens, is hereby ordered to have the utility serving the heat at the premises transferred into her own account within 20 days of the entry date of this order as noted below.

 

2. If the tenant believes that there is good reason why she should not have to put the utility for heat into her own name, she may file, serve and mark up a motion to that effect immediately upon receipt of this order.

 

 

3. If the tenant does not file any motion prior to the deadline noted in the preceding paragraph, the landlord may remove her name from the utility account and may file a motion for assessment of damages or for further court orders.

 

So entered this day of May, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

TOWN OF LANESBOROUGH BOARD OF HEALTH, Plaintiff, v. PETER and MICHELLE BEAUDOIN, Defendants.

 

Western Division

 

 

Docket # No. 08-CV-1487

 

Parties: TOWN OF LANESBOROUGH BOARD OF HEALTH, Plaintiff, v. PETER and MICHELLE BEAUDOIN, Defendants.

 

Judge: /s/Robert Fields

Associate Justice

 

Date: April , 2009

 

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT IN CIVIL

CONTEMPT PROCEEDINGS

After hearing on April 22, 2009, on the civil contempt trial and review, at which all parties appeared, the following findings, rulings and order for entry of judgment shall enter:

1. Background: On July 16, 2008 the plaintiff (hereinafter “Town”) filed a request for an emergency order with the court. The Town was seeking to enforce a Board of Health “order” which had been previously sent to the defendants (herein after “the Beaudoins”) and pertaining to noise complaints the Town had received stemming from the use of motor-cross activity on the Beaudoins’ property in Lanesborough. As a result of a hearing on the Town’s request on October 15, 2008, the Town appeared but the Beaudoins did not appear and a court order issued which required the Beaudoins to cease and deist any motor-cross activity at their property located

 

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at 918 North Main Street in Lanesborough, MA. The next court event was the filing by the Town of a verified complaint for contempt alleging that the Beaudoins had violated the court order by allowing motor-cross activity on their property.

2. Discussion: The parties stipulated to the fact that the Beaudoins allowed motor-cross activity to be conducted on their property on or about March 31, 2009 and April 1, 2009 in violation of the court order. The Beaudoins focused much of their presentation at the hearing on the procedural deficiencies of this case, specifically that the reason they did not appear at the October 15, 2008 hearing was because they were not made aware of it in advance. Additionally, the Beaudoins highlighted the fact that the Town’s order regarding the motor-cross activity did not require the Beaudoins to cease and desist from motor-cross activity but, instead, to not violate the state’s air pollution laws.

3. The Beaudoins may be correct on both these issues. Review of the court file indicates that the Beaudoins may not have been given advance notice of the October 15, 2008 court hearing that resulted in

the order. Additionally, the Town’s October 23, 2007 “cease and desist order” did not expressly prohibit motor-cross activity on the Beaudoin’s property. It, instead, informed them that such activity violated the state noise pollution laws and that the Beaudoins were to not further violate those laws. Nevertheless, the Beaudoins were under a clear and unequivocal order from this court to cease all motor-cross activity on their property. Moreover, the Beaudoins were invited by the language in that same order to bring the matter before the court if they were “aggrieved” by the order. The Beaudoins never filed a motion to seek a change in the court order and only after violating the order are they asking for a modification of its terms.

 

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4. Conclusion and Order: Based on the foregoing, the court finds and rules that the Beaudoins are in contempt of a clear and unequivocal court order by allowing motor-cross activity to occur on their property on or about March 31, 2009 and April 1, 2009. As such, a judgment shall enter on behalf of the Town. Additionally, the Town has twenty days from the entry date of this order as indicated below to file and serve a petition for reasonable attorneys fees. The Beaudoins have ten days after receipt of the Town’s attorney fee petition to file and serve opposition, if any, thereto. The court shall enter a decision on said petition on the papers or shall schedule a hearing to determine how much, if any, attorneys fees shall be awarded to the Town.

5. Additionally, inasmuch as the hearing focused on a request by the Beaudoins to modify the court order to allow for some motor-cross activity on their property, that request is hereby denied and the terms of the October 23, 2008 order are to remain in full force and effect until further court order.

6. It became evident during the hearing that it is anticipated by the parties that some amount of motor-cross activity may be able to occur on the Beaudoins’ property that will not violate the state air pollution laws. To determine how much is a matter of measuring sound decibels which occur as a result of said motor-cross activity. To that end, the parties assented at the hearing to a further order (hereby entered) that the Beaudoins deposit $5000 with the Town’s attorney for the costs of hiring an agreed-upon sound expert who will be dispatched to take the necessary sound measurements to determine how much, if any, motor-cross activity may be allowed. It is also anticipated that such measurements shall require that motor-cross activity occur so that they may be measured by the expert from various locales including the property of

 

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the Beaudoins and their neighbors. The Town shall notify the neighbors of the dates and times of these occurrences so that they are aware that motor-cross activity at those times is allowed under this order and so that they may allow for the expert to be on their respective properties to conduct sound measurements.

 

So entered this day of April, 2009.

 

 

 

 

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End Of Decision

 

HOUSING COURT

SPRINGFIELD HOUSING AUTHORITY, Plaintiff, TIFFANY JONES, Defendant.

 

Western Division

 

 

Docket # No. 09-CV-593

 

Parties: SPRINGFIELD HOUSING AUTHORITY, Plaintiff, TIFFANY JONES, Defendant.

 

Judge: /s/Robert Fields

Associate Justice

 

Date: May 22, 2009

 

ORDER

After hearing on April 30, 2009, on the plaintiff’s (landlord’s) application for a restraining order, at which both parties appeared, the following findings, rulings and order are to enter:

1. Background: On April 28, 2009 the landlord filed an verified complaint and application for an emergency restraining order and was heard, ex parte, on that same date and a temporary order issued which required the defendant (tenant) and her household to vacate the premises located at 50 Healy Street in Springfield. The tenant complied with the order without incident and the parties returned to court for a hearing on April 30, 2009 to determine if the order should be extended or vacated. On that date, an evidentiary hearing was conducted with several witnesses regarding recent incidents involving the tenant and her son, Hamiid.

2. Discussion: Though the landlord asserted allegations about extremely serious behavior involving the tenant’s thirteen year old son, Hamiid, the court focused its attention at

 

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the hearing on an incident which occurred on April 19, 2009 and involved a physical altercation between the tenant and two other residents, Laura and David Guzman. During that incident, the tenant seriously injured Ms. Guzman, punching her in the eye and face. Though the tenant appeared somewhat contrite during the hearing, the evidence is overwhelming that she punched Ms. Guzman repeatedly and jumped on top of her and, using tenant’ phrase, “lost it”. When shown a photograph of Ms. Guzman at the hearing, which was taken shortly after the incident and shows a very swollen and injured face and eye socket, the tenant did not deny that she had caused the injury depicted.

3. Order: Based on the foregoing, the court’s earlier order dated April 28, 2009 which requires the tenant and her household to vacate the unit located at 50 Healy Street in Springfield shall remain in full force and effect until further court order. This order does not obviate the requirement that the landlord obtain legal possession of the premises either by agreement of the parties or through Summary Process.[1] Furthermore, the court hereby refers this case to the Tenancy Preservation Program which shall make the necessary assessments to link the tenant and her son to needed medical and social work services. The tenant may seek relief from this order upon a showing of changed circumstances which might allow her to resume her tenancy.

4. Should the tenant need any of her belongings from inside the premises during the pendency of this order and/or until legal possession of the premises is obtained by the landlord, she must contact the landlord and make the necessary arrangements.

5. The tenant has informed the court that she is currently staying with her friend and her

 

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[1] Should the landlord commence a Summary Process action, the landlord should file a motion to consolidate the two cases.

 

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mail can be sent to the tenant, c/o Shkena Howard, 75 Healy Street, Indian Orchard, MA 01151. The Clerk’s Office shall send a copy of this Order to that address for the tenant.

6. Review: This matter shall be scheduled for review on July 14, 2009 at 9:00 a.m., though it may be brought before the court by motion of either party prior to that date. The Tenancy Preservation Program shall be noticed for any future hearings.

 

 

So entered this 22 day of May, 2009.

 

 

 

cc: Tenancy Preservation Program

 

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End Of Decision

 

HOUSING COURT

MENTAL HEALTH ASSOCIATION, PAUL ROBERTSON, Defendant.

 

Western Division

 

 

Docket # No. 09-SP-1444

 

Parties: MENTAL HEALTH ASSOCIATION, PAUL ROBERTSON, Defendant.

 

Judge: /s/Robert Fields

Associate Justice

 

Date: May , 2009

 

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned summary process (eviction) matter came before the court for trial on May 14, 2009, after which the following findings of facts and rulings of law and order of judgment are to enter:

1. Background: The defendant, Paul Robertson (“Robertson”) is a participant in a rental subsidy program administered by the plaintiff, Mental Health Association (“M.H.A.”). Both parties entered into a lease with Bancroft Apartments, LLC in November, 2005. It is clear from the lease and by the testimony of the parties, provided at the hearing, that M.H.A. is not the landlord nor a sub-lessor. Instead, the parties are co-tenants, both having signed the lease as “tenant” and “lessee” interchangeably. On March 23, 2009 M.H.A. sent a notice for non-payment of rent to Robertson and then initiated this summary process action.

2. Procedural Matter: As a preliminary, procedural matter, Robertson moves this court for a dismissal based on the fact that M.H.A. is not the landlord nor a sub-lessor and otherwise

 

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fails to have any superior right to him over the subject premises. Though M.H.A. may pursue a termination of Robertson’s participation in the rental subsidy program it administers, M.H.A. does not have standing under G.L. c.239, s. 1 to terminate the underlying tenancy nor bring an eviction action in the manner that is has here. As such, Robertson’s motion is hereby allowed and the case is dismissed. Robertson’s counterclaims are also dismissed, without prejudice.

3. Conclusion and Order: Based on the foregoing, the defendant’s oral motion to dismiss is hereby allowed and the case is dismissed.

 

So entered this day of May, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

NORTHAMPTON HOUSING AUTHORITY, Plaintiff, v. WILLIAM FABROCINI, Defendant.

 

Western Division

 

 

Docket # No. 09-SP-1222

 

Parties: NORTHAMPTON HOUSING AUTHORITY, Plaintiff, v. WILLIAM FABROCINI, Defendant.

 

Judge: /s/Robert Fields

Associate Justice

 

Date: May , 2009

 

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

 

The above-captioned summary process (eviction) case came before the court for trial on April 27 2009, after which the following findings of facts and rulings of law are to enter:

1. Background: The plaintiff (landlord) is a public housing authority and rents an apartment located at 137 High Street, #R-155 in Florence, Massachusetts (the premises) to the defendant (tenant). On February 24, 2009, the landlord terminated the tenancy with a rental period notice based on alleged tenant fault. Specifically, the tenant’s cluttering his apartment and common areas and his failure to remove same after notice to do so. On April 8, 2009 the landlord filed this summary process action. On April 6, 2009 the tenant filed an answer with the court.

2. The landlord’s case: The landlord has met its burden of proof that the tenant’s apartment is severely cluttered and that it poses a safety hazard for the tenant, his visitors, his neighbors, and any safety and rescue personal that might be summoned to the premises.

 

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According to the testimony of Capt. Denkiewitcz, of the Northampton Fire Department, the “fire load” of the contents of the tenant’s apartment (which is a measurement of the level of combustibles) is a 8 or 9 out of 10. Additionally, the tenant has caused severe and hazardous clutter to accumulate on a porch he shares with a neighbor and in the common areas in his building. In addition to the testimony of the Fire Department captain, the landlord provided photographic evidence and testimony from the director of the city’s board of health. The landlord gave the tenant ample opportunity to remedy this situation and also given the tenant an opportunity to discuss the matter in a private conference. The tenant did not attend the conference and has not taken the steps necessary to remove the clutter. The tenant’s actions, and inactions, as described above constitute a substantial violation of his lease and a judgment shall enter for possession for the landlord.

3. Tenant’s Defenses: The tenant’s sole defense is that his van was unjustly removed from the premises in 2006 by the city and that because he does not have a van, he can not clear out his apartment and the common areas. Such a claim, not proven in any way whatsoever by the tenant, fails to provide a defense to this eviction case.

4. Reasonable Accommodation: Based on the mental disability of the tenant, the court inquired about the possibility of a reasonable accommodation to allow for the tenant to obtain services that might assist the tenant and enable him to remove the clutter from his unit. The court went as far as to investigate whether the landlord could incur the initial expense of moving the tenant’s belongings to an off-site storage facility. The landlord indicated a sincere willingness to participate in a reasonable accommodation which would allow for the tenant to retain his tenancy including but not limited

to use of the landlord’s staff, laborers and equipment.

 

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The tenant, however, would not agree to participate in any such endeavor. The tenant made it clear that he would not cooperate with such efforts to remove the clutter from his unit and from the common areas. Such recalcitrance leaves the court with no basis to stay these proceedings in accordance with a reasonable accommodations plan.

5. Conclusion and Order: Based on the foregoing, judgment shall enter for the plaintiff-landlord for possession and for court costs.

 

So entered this day of May, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

NEW HORIZONS SERVICE DOGS, INC. and JOSHUA FULLER-DEETS, Plaintiffs, v. HAMPSHIRE COLLEGE, Defendant

 

 

HAMPSHIRE DIVISION

 

 

Docket # 09-CV-1419

 

Parties: NEW HORIZONS SERVICE DOGS, INC. and JOSHUA FULLER-DEETS, Plaintiffs, v. HAMPSHIRE COLLEGE, Defendant

 

Judge: /s/Robert Fields, Associate Justice

 

Date: December 8, 2009

 

ORDER

This matter came before the court on the plaintiffs’ motion for injunctive relief and on the defendant’s motion to dismiss. After hearing on November 16, 2009, at which all parties appeared through counsel, and upon consideration of the parties’ arguments and written submissions, the following Rulings and Order are to enter:

1. Background: The plaintiff, Joshua Fuller-Deets (“Fuller-Deets”) is a student at Hampshire College in Amherst, Massachusetts. He is a resident of San Francisco, California and during a summer vacation became a volunteer puppy raiser of a four month old Golden Retriever named Logan (“Logan”) on behalf of New Horizons Service Dogs, Inc. Co-plaintiff, New Horizons Service Dogs, Inc. (“New Horizons”), is a non-profit organization with headquarters in Orange City, Florida, that trains and places companion dogs with disabled clients. (Fuller-Deets and New Horizons hereinafter are referred to as “the Plaintiffs”). The defendant, Hampshire

 

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College (“Hampshire College” or “Defendant”), is a private liberal arts college situated in Amherst, Massachusetts. Fuller-Deets is engaged in an 18 month dog training process and he sought to bring

Logna with him to the dormitory at Hampshire College. Hampshire College initially denied him permission to do so and New Horizions and Fuller-Deets brought suit seeking injuctive relief as well as monetary damages for violations of Fuller-Deets’ civil rights and for malicious interference with advantageous and contractual relations. The Plaintiffs claim that Fuller-Deets’ rights under Title III of the American’s with Disabilities Act (“ADA”) have been violated under 42 U.S.C. s. 121829(a) by first denying him permission to house the dog in his dormitory and also by placing limits on his access to other locations of the Hampshire College campus when accompanied by the dog.

2. Discussion: Plaintiffs’ Motion for Injunctive Relief: In order for the Plaintiffs to prevail on their motion for a temporary injunction, they have the burden of demonstrating (1) a likelihood of success on the merits; (2) that irreparable harm will result from denial of the injunction; and (3) that in light of the moving party’s likelihood of success on the merits, the risk of irreparable harm to the moving party outweighs the potential harm to the nonmoving party in granting injunction. Loyal Order of Moose, Inc. v. Board of Health of Yarmouth, 439 Mass. 597, 601 (2003).

3. Likelihood of Success on the Merits: In order to demonstrate a likelihood of success on the merits, the Plaintiffs must be able to show that they are likely to prevail on their claim. Id. The Plaintiffs allege that injunctive relief is proper because Fuller-Deets qualifies for protection under 42 U.S.C. s. 12182(a). This section states that “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities,

 

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privileges, advantages or accommodations of any place of public accommodation by any person who owns or operates a place of public accommodation.” 42 U.S.C. s. 12182(a). Although Fuller-Deets is not disabled, he claims his qualification under Massachusetts Statutory Law. M.G.L. Ch. 129 s. 39F, which provides as follows:

 

A person accompanied by an engaged in the raising or training of a service dog, including a hearing, guide or assistance dog, shall have the same rights, privileges and responsibilities as those afforded to an individual with a disability under the Americans with Disabilities Act, 42 U.S.C. 12101, et al.

 

4. The defendant does not dispute that Fuller-Deets qualifies as a raiser or trainer of a service dog. Rather, the defendant argues that Hampshire College is not a place of public accommodation. “Public accommodation is defined in terms of 12 categories, which the legislative history indicates ‘should be construed liberally’ to afford people with disabilities ‘equal access’ to the wide variety of establishments available to the non-disabled.” Regents of the Mercersburg College v. Republic Franklin Insurance Co., 458 F.3d 159, 164 (2006). “The ADA obligates a ‘public accommodation’ only with respect to a ‘facility’ that is ‘used as, or designed or constructed for use as’, whether a place of public accommodation or a commercial facility.” Id. quoting 28 C.F.R. s. 36.102(b)(3)(I)-(ii).

5. In Mercersburg, the Court reviewed whether private-school

dormitories are “transient lodging” as defined by the ADA regulations. Id. The court in Mercersburg held that the private-school dormitories did qualify, for reasons that “student housing – an integral party of boarding school experience – is one of the facilities, privileges, advantages, and accommodations of a place of education covered by Title III of the ADA.” Id. at 166. Additionally, the Court analyzed the ADA Accessibility Guidelines which state that “transient lodging may including, but is not

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limited to, resorts, group homes, hotels, motels, and dormitories.” Id. quoting 28 C.F.R. Part 36 App. A, Ch. 3.5.

6. Relying on Mercersburg, the Plaintiffs argue that the dormitories at Hampshire College qualify as “transient lodging” under the ADA and therefore a public accommodation. As there is no measurable difference as a matter of law between the dormitories in Mercersburg (other than it is a preparatory boarding school) and the dormitories at Hampshire College, the court finds that the Plaintiffs are likely to prevail on their claim that the Hampshire College dormitories qualify as a place of public accommodation under the meaning of the ADA.[1] Moreover, the holding in Mercersburg is that the school itself is a “place of education” and, thus, a “public accommodation” under the ADA. As such, the requirement to comply with the ADA is not limited to the dormitories but also applies to other areas of the Hampshire College campus.

6. As such, Hampshire College is covered by Title III’s “prohibition on discrimination in places of ‘public accommodation,’ s. 12182(a) . . . the provision requires covered entities make ‘reasonable modifications in policies, practices, or procedures’ to accommodate disabled individuals.” Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 126 (2005). However, “policies practices, and procedures need not be modified . . . if doing so would ‘fundamentally alter’ the services or accommodations being offered.” Id. at 129. quoting s.s. 12182(b)(2)(A)(ii)-(iii). Here, Fuller-Deets and Logan have lived in the dormitory for more than two months with the approval of Fuller-Deets’ roommates and the Defendant has not offered any assertion that this arrangement has fundamentally altered the services or accommodations at the college. Additionally, the Defendant has not provided any factual support for the position that Fuller-

 

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[1] It is noteworthy that the Defendant’s own “Notice of Nondiscrimination” available on its website, and provided by the Plaintiffs as an exhibit to their motion, states that it adheres to the Americans with Disabilities Act.

 

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Deets’ access to other parts of the Hampshire College campus when accompanied by Logan would cause such a fundamental alteration. The Plaintiffs having established that Hampshire is a “place of public accommodation,” and the defendant having failed to establish that the requested modification would fundamentally alter the college’s

services or accommodation, the Plaintiffs are entitled to an order prohibiting the removal of Fuller-Deets and Logan from the dormitory, and further requiring the defendant to respond to a proposal by the plaintiffs for reasonable access to other parts of the campus, assuming they satisfy the other prerequisites to injunctive relief.

7. Irreparable Injury: In addition to a likelihood of success on the merits, the Plaintiffs must show that they will suffer an irreparable injury in the absence of injunctive relief. Loyal Order of Moose, Inc. v. Board of Health of Yarmouth,439 Mass. at 601. Equity will not issue an injunction where there is an adequate remedy at law and “damages are an adequate compensation fora breach.” Rigs v. Sokol, 318 Mass. 337, 342 (1945).

8. New Horizons is accredited by an international agency that sets standards for the service dog industry. There has been an investment by the Plaintiffs of four months of time and effort in training Logan. Consistency and continuity are key to Logan’s development as a service dog, and an interruption in the relationship between Fuller-Deets and Logan may render Logan unfit to function as a service dog. In the absence of the requested injunctive relief, Logan’s training would be interrupted, risking regression, setting back the training schedule, and delaying the assignment of Logan to a disabled partner. Damages would not suffice to compensate for these losses.

9. Balance of Harms: In evaluating whether the Plaintiffs will suffer irreparable injury, the judge must balance the substantial risk of irreparable harm against

 

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“any similar risk of irreparable harm which granting the injunction would create for the opposing party. What matters as to each party is not the raw amount of irreparable harm the party might conceivably suffer, but rather the risk of such harm in light of the party’s chance of success on the merits. Only where the balance between these risk cuts in favor of the moving party may a preliminary injunction issue.” Packing Industries Group, Inc. v. Cheney, 380 Mass. 609, 617 (1980).

 

Therefore, in order to prove irreparable injury, the Plaintiffs must demonstrate that their risk of harm in the absence of injunctive relief outweighs the harm to the defendant resulting from the requested relief. Here, the defendant has not alleged any specific harm which would flow from an order permitting Logan to remain in the dormitory and further permitting reasonable access to other areas of the campus. In addition, as indicated below, as an initial matter the court is ordering the parties merely to engage in an interactive process designed to determine whether there are other areas of campus to which Logan might reasonably be allowed access. (See, Calero-Cerezo v. US. Dept. Of Justice, 355 F.3d 6 (1St Cir. 2004); Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 165 (5`h Cir). Engaging in this process causes no harm to the defendant, as the parties have full recourse to the court to determine the scope of any additional accommodation in the absence of agreement.

10. Defendant’s Motion to Dismiss – Mootness: Defendant moves for dismissal on several grounds. First, the college argues that the claim for injunctive relief is moot. “It is the general rule that

courts decide only actual controversies.” Metros v. Secretary of Corn., 396 Mass. 156, 159 (1985). In addition, “when, at the time of the disposition of a cause, the situation is such that the relief sought is no longer available or of any use to the plaintiffs and a decision by the court will not be applicable to existing rights, no decision will be rendered.” Mollholland v. State Racing Com’n., 295 Mass. 286, 289 (1936).

 

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11. Since Hampshire College has agreed to allow Logan to remain in the dormitory as long as Fuller-Deets is still raising the puppy for New Horizons, it argues that there is no longer a live controversy for the court to decide. Allowing Logan to remain in the dormitory, however, is not the only relief requested. The Plaintiffs are seeking additional protection from the Defendant’s interference with rights afforded under G.L. c.129, s.39F and the ADA, specifically, reasonable access to other areas of the college campus. As such, there still exist matters in controversy that have not been made moot by the Defendant’s acquiescence in allowing Logan to live in the dormitory with Fuller-Deets .

12. Failure to State a Claim Upon Which Monetary Relief May be Recovered: In addition, the Defendant argues that the Plaintiffs’ claims for civil rights violations and interference with contractual relations should be dismissed because neither claim entitles the Plaintiffs to monetary relief. This position is unavailing, however. Were the plaintiffs to prevail in this civil rights action, they would be entitled to relief in the form of damages proven at trial, costs, and reasonable attorneys fees.

13. Finally, the Defendant argues that since it has agreed to allow Fuller-Deets to reside in the dormitory with Logan, the remaining issues of access to other parts of the college campus are not within the scope of the Housing Court’s subject matter jurisdiction. In order to cure any potential jurisdictional defect, and in the interests of judicial economy, I am therefore requesting that the case be transferred administratively to the Superior Court, and that I be designated to handle it. (Copy of my letter seeking administrative transfer is attached to this order as “Attachment A”).

14. Conclusion and Order: Based on the foregoing, the Plaintiffs’ motion for injunctive relief is ALLOWED and the Defendant’s motion to dismiss is DENIED. The Defendant is

 

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hereby enjoined from denying Fuller-Deets the right to reside in the dormitory with Logan. In addition, the Defendant is ordered to engage in an interactive process with the plaintiff, to determine whether access by Logan to other areas of the campus can reasonably be accommodated. If, following this interactive process, the parties are unable to reach agreement as to the specifics of this accommodation, either party may schedule an evidentiary hearing through the Clerk’s Office. See, Brennan v. Stewart, 834 F.2d 1248, 1262 (1988) (measure of reasonable accommodation which should “be decided as an issue of fact-finding; meaning, of course, that it is one for the trial court or jury.” )

15. This matter shall be scheduled by the Clerk’s Office for a

Case Management Conference once the request for administrative transfer is processed by the Trial Court.

 

 

 

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ATTACHMENT A

Re: Request for Administrative Transfer from the Housing Court-Western Division to the Hampden County Superior Court, and for Special Designation of Housing Court Associate Justice Robert G. Fields to sit as a Superior Court Judge

 

Dear Chief Justice Pierce,

 

The case of New Horizons Service Dogs, Inc. & Joshua Fuller-Deets v. Hampshire College, Docket No. 09-CV-1419, was before me on two motions: 1) plaintiffs’ motion for Preliminary Injunction; and 2) the defendant’s motion to dismiss for mootness and lack of subject matter jurisdiction. The plaintiff New Horizons Service Dogs, Inc. (“New Horizons”) is an organization which breeds, raises and trains service dogs. The plaintiff Joshua Fuller-Deets (“Fuller-Deets”) is a resident-student at Hampshire College (“Hampshire”), and is currently raising a golden retriever for New Horizons.

The plaintiffs initially claimed that Hampshire denied Fuller-Deets permission to bring the dog on campus and to reside with him in the dorm in violation of the Americans with Disabilities Act (“ADA”) and G.L. c.129, s.39F which affords him the same rights as if he were an individual with a disability under the ADA, and that the college interfered with his contractual relations. At some point, Hampshire agreed to allow the dog to reside in the dorm with Fuller-Deets, but denied the dog access to other parts of the campus. In defense, the defendants maintained that because the dog had access to the dormitories, the matter was now moot, and that the college was not subject to the ADA. On December 8, 2009, I determined that the matter was not moot and that the college was subject to the ADA, and allowed the plaintiffs’ motion for Preliminary Injunction.

Hampshire College also contends that the Housing Court lacks jurisdiction to hear the claims against it, arguing that because the claims as to the housing of the dog has been resolved, the remaining claims are outside of the jurisdiction of the Court. The tenant, meanwhile, argues

 

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that the claims involve the health, safety, and welfare of the occupant of real property, and that the Court therefore has jurisdiction. Upon consideration of these arguments, I have determined that a question exists regarding the Housing Court’s jurisdiction over the remaining claims against Hampshire College. In an effort to cure any possible jurisdictional defect without unnecessarily delaying litigation, I am requesting that the Chief Justice for Administration and Management transfer this case to the Superior Court pursuant to G.L. c. 211B, s.9, and that I be

designated to handle it.

Thank you for your attention to this matter.

 

Sincerely,

 

Robert G. Fields

Associate Justice

 

 

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End Of Decision

 

HOUSING COURT

CHICOPEE HOUSING AUTHORITY, Plaintiff, v. JESSICA TORRES, Defendant.

 

 

 

HAMPDEN DIVISION

 

 

Docket # Case No. 07-SP-4425

 

Parties: CHICOPEE HOUSING AUTHORITY, Plaintiff, v. JESSICA TORRES, Defendant.

 

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

 

Date: April 2009

 

ORDER

After hearing on April 14, 2009 on the defendant’s (tenant’s) emergency motion to stop the physical eviction, at which both parties appeared, the following order is to enter:

 

1. Due to the insufficiency of the constable’s

“forty-eight hour notice” (attached and incorporated herein), the tenant’s motion is hereby ALLOWED and the physical eviction currently scheduled shall be cancelled.

 

2. The “forty-eight hour notice” fails to comply with the relevant statute, G.L. c.239, s.3.

 

3. Specifically, G.L. c.239, s.3 requires that the officer levying upon the execution give to the defendant (tenant) written notice at least forty-eight hours in advance of the physical move-out. Furthermore, the notice must contain certain information that is detailed in the statute including:

 

–a statement that the warehouser’s storage rates may be ascertained by contacting the commissioner of public safety and the address and telephone of such agency (section 4 of the third paragraph);

 

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–a statement that the warehouser may sell at auction any property that is unclaimed after 6 months and may retain that portion of the proceeds necessary to compensate him for any unpaid storage fees accrued as of the date of the auction, except as provided in section 4 (section 5 of the third paragraph);

 

–a statement that the defendant should notify the

wharehouser in writing at the business address listed in the notice of any change in the defendant’s mailing address (section 6 of the third paragraph).

 

- said notice is to be filed in the court. (last line of the third paragraph).

 

4. Beyond the fact that it is required by statute, including the referenced language, the forty-eight hour notice serves the important purpose of providing the tenant with important information regarding the consequences of levying on the execution. The forty-eight hour notice is the only notice the tenant receives that there will be charges associated with storing her possessions, and that the wharehouser may sell her belongings at auction. Not only is this information necessary in order for the tenant to respond meaningfully to the forty eight hour notice itself, and make decisions associated therewith, it is also essential to the tenant’s ability ultimately to recover her belongings.

 

5. The notice in this matter failed to contain any of the provisions noted above and was not filed with the court.

 

6. As such, the notice is invalid, the plaintiff (landlord) must cancel the physical eviction currently scheduled and, if the landlord wishes to levy in the future, it must re-serve a written notice in accordance with G.L. c.239, s.3.

 

 

 

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End Of Decision

 

HOUSING COURT

LANREB REALTY LLC, Plaintiff v. MARITZA ESTRADA, Defendant.

 

 

WESTERN DIVISION

 

 

Docket # No. 08-SP-4862

 

Parties: LANREB REALTY LLC, Plaintiff v. MARITZA ESTRADA, Defendant.

 

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

 

Date: January 20, 2009

 

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned summary process (eviction) case[1] came before the court for trial on January 13, 2009, after which the following findings of fact and rulings of law are to enter:

1. Background: The plaintiff, Lanreb Realty LLC (landlord), owns a three family property located at 79 Keith Street, Springfield, where it rented the 3`d floor apartment (the premises) to the defendant, Maritza Estrada (tenant) beginning on April 1, 2009 at a rental rate of $850 per month.

2. The Landlord’s Claim for Possession: The landlord has established much of its prima facie elements of its case other than the amount of rent that it claims is outstanding. Specifically, the landlord claims that $3,330 is owed through January, 2009. The court finds, however, based on a move-in date of April 1, 2008 and the figures recited by the landlord in his trial testimony,

 

 

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[1] The consolidated civil code enforcement action also came before the court this day for review and an agreement signed by all of the parties (including the City of Springfield Code Enforcement Department) was filed regarding a schedule of needed repairs.

 

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that the outstanding rent through January, 2009 is $3,180.[2] The outcome of the case turns, therefore, on the tenant’s defenses and counterclaims which, in essence, allege interference with quiet enjoyment and breach of the warranty of habitability. The court will address each of these claims in turn.

2. The Tenant’s Counterclaims: The tenant raises two counterclaims: breach of quiet enjoyment based on failure to provide a functioning heating system and provide a functioning gas piping system for gas service; and a breach of the warranty of habitability as a result of other substandard conditions at the premises.

3. Interference with Quiet Enjoyment: The landlord failed to remedy the problem of insufficient heat after being notified of the problem from both the tenant and the city’s code enforcement department. This failure to properly make repairs to the heating system after being made aware of the 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 in accordance with G.L. c.186, s.14. Not having proved actual damages, the tenant is awarded three months’ rent, or $2,550.[3]

4. Conditions: I credit the tenant’s testimony and the finding of the code enforcement department that there have been missing and broken or missing windows, a collapsed ceiling, and

 

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[2] The court credits the tenant’s testimony that though she wanted to take occupancy by March 1, 2008 the apartment was not ready and she moved in on April 1, 2008. The landlord’s testimony regarding rent payments received is as follows and pertain to 2008: April, $850 (paid in March); May, $850; June, $750; July, $240; August, $850; September, $790; October, $470; November, $480; December, $0; January, 2009, $0.

 

[3] The tenant also testified that she has no hot water due to the gas company’s termination of service to the entire building. The landlord argued that the lack of gas service is due to the tenant’s alleged theft of gas service. There is insufficient evidence upon which the court can rule on that part of the tenant’s claim seeking damages arising out of the lack of gas service. The restoration of gas service is a subject in the ongoing code enforcement action.

 

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a clogged sink for the duration of the tenancy, all which constitute 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. These 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 (up to Code), 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 was reduced by 10%, on average, as a result of these conditions of disrepair over the entire tenancy (ten months). The tenant’s damages for the landlord’s breach of the warranty of habitability are therefore $850 (contract rent) x 10% – $85 X 10 months (through January, 2009) = $850.

6. Order for Entry of Judgment: Based on the foregoing, judgment shall enter in favor of the defendant tenant for possession and damages in the amount of $220 (award to the tenant of $3,400 minus the outstanding rent of $3,180). At the election of the tenant, this sum may be applied towards future rent, at the rate of $850 per month. There shall be no court costs assessed against either party at this time.

 

 

 

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End Of Decision

 

HOUSING COURT

ANNE MAYNARD, Plaintiff, v. HAROLD FITZGERALD, FITZGERALD PROPERTIES and STEPHEN CHAPUT REAL ESTATE MANAGEMENT, Defendant.

 

 

 

Western Division

 

 

Docket # No. 09-SC-37

 

Parties: ANNE MAYNARD, Plaintiff, v. HAROLD FITZGERALD, FITZGERALD PROPERTIES and STEPHEN CHAPUT REAL ESTATE MANAGEMENT, Defendant.

 

Judge: /s/Robert Fields, Associate Justice

 

Date: September 2009

 

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

This small claims matter came before the court on appeal from an earlier judgment entered by an Assistant Clerk Magistrate of the Housing Court. After trial de novo on September 14, 2009, at which the plaintiff and defendants Harold Fitzgerald and Fitzgerald Properties appeared but for which defendant Stephen Chaput failed to appear, the following findings, rulings and judgment shall enter:

1. Background: The plaintiff (hereinafter “Maynard”) applied for an apartment with Stephen Chaput Real Estate Management (hereinafter “Chaput”) in October, 2008. Maynard’s rental application was approved by Chaput and she was shown several available apartments. One such apartment is located at 18 Park Street, Apt. #7, in Florence,

Massachusetts (hereinafter “the premises”) and is owned by Fitzgerald Properties and/or Harold Fitgerald (hereinafter “Fitzgerald”). Maynard agreed to rent the premises and on October 25, 2008 entered into a lease

 

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contract for the premises, paid last month’s rent and a security deposit, and was given a key to the premises. Maynard informed Chaput of several items that required repair and indicated that she wanted to be present for any repairs. One day or two after signing the lease, Maynard prepared to move into the premises when she received a telephone call from Chaput who informed her that Fitgerald had changed its mind, had changed the lock(s) at the premises and would not let her move into premises. Chaput informed Maynard that Fitgerald was adamant that because Maynard had insisted on being present when repairs were performed that Fitzgerald didn’t want to have Maynard as a tenant.

2. Chaput apologized and returned to Maynard her security deposit and last month’s rent. Subsequently, Maynard filed this small claims action seeking damages for a breach of her quiet enjoyment, in violation of G.L. c.186, s.14. Fitzgerald argues that Chaput did not have authority to rent the unit to Maynard, that they did not change the locks to prevent Maynard from taking occupancy, and that Maynard was never a tenant and may not be awarded damages pursuant to G.L. c.186, s.14.

3. Discussion: Through evidence introduced at trial, including testimonial and documentary evidence, Maynard was able to establish that Chaput had either express or apparent authority to enter into lease agreements on behalf of Fitzgerald. There is a history spanning a number of years of Chaput leasing units owned by Fitzgerald and signing the lease contracts on Fitzgerald’s behalf. The court also finds that the locks were changed by Fitgerald to bar Maynard access and not, as was stated by Fitzgerald at trial, because the former tenant had not left a key when she vacated. That former tenant had vacated approximately thirty days earlier and Fitzgerald had chosen the day before Maynard was to move her belongings into the unit as the

 

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time to change the locks.

4. Contrary to the assertion by Fitzgerald that Maynard was not a tenant because she had not moved her belongings into the unit, the court finds that Maynard became a tenant with rights of possession upon signing the lease, tendering the requisite monies paid in advance, and after being given the key to the premises. As such, Maynard was protected by G.L. c.186, s.14, and may be awarded damages thereunder due to Fitzgerald’s actions intended to regain possession of the premises without judicial process. Maynard, not having proven actual damages in excess of three months’ rent, is awarded damages in accordance with G.L. c.s.14 equal to three months’ rent, totaling $2,100 plus court costs.

5. Conclusion and Order: Based on the foregoing, a default judgment for $2,100 plus costs and interest shall enter for Maynard and against Stephen Chaput Real Estate Management due to his failure

to appear. A judgment shall also enter for Maynard in the amount $2,100 plus court costs and interest against Harold Fitzgerald and Fitzgerald Properties. The defendants are liable for this judgment, jointly and individually, and have thirty days to pay it to the plaintiff. If the judgment is not paid in full, a Payment Hearing shall be scheduled by the Clerk’s Office after that 30-day period.

 

 

 

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End Of Decision

 

HOUSING COURT

DEBORAH DECKER, Plaintiff, v. JOSEPH NEW, Defendant

 

 

Western Division

 

 

Docket # No. 09-SP-3359

 

Parties: DEBORAH DECKER, Plaintiff, v. JOSEPH NEW, Defendant

 

Judge: /s/Robert Fields, Associate Justice

 

Date: October 22, 2009

 

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned matter came before the court for trial on October 14, 2009, after which the following findings of facts, rulings of law and order for entry of judgment are to enter:

1. Background: The plaintiff, Deborah Decker (landlord), owns and manages a 12- unit building located at 17 Park Street in Lee, Massachusetts, where she rents apartment #6 (the premises) to the defendant, Joseph New (tenant). The parties began the tenancy on March 3,4 2008 at a rental rate of $570 per month.

2. The Landlord’s Claim for Possession: The landlord has established the prima facie elements of her claim for possession and for outstanding rent. Specifically, the landlord gave a termination notice to the tenant for non-payment of rent on July 15, 2009, and then had him served properly with a summons and complaint. The outstanding rent or use and occupancy

 

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through October 31, 2009 totals $2,280. What remains for the court’s determination, therefore, are the tenant’s defenses and counterclaims.

3. Tenant’s defenses and counterclaims: The tenant alleges that there have been conditions of disrepair on the premises that he told the landlord about but the landlord failed to remedy them. The tenant also claims that the landlord’s serving the tenant with a termination notice was in retaliation for his complaining about bad conditions on the premises to the health department. Additionally, the tenant claims that the landlord breached his covenant of quiet enjoyment by entering the subject premises without his permission.

4. Warranty of Habitability; Conditions of disrepair: The tenant testified about mold and mildew buildup in the bathroom and sliding glass door window near the main entrance of the subject premises. The tenant claims that he withheld his rent payments beginning in July, 2009, based on the landlord’s failure to address the mold and mildew problem. The landlord presented evidence that she was in fact diligent in her response to the mold and mildew problem, including but not limited to the provision of a de-humidifier and an additional

fan for the bathroom-even though there is a functioning window. Additionally, the landlord offered to clean the mold and mildew even though the health department found that it was the tenant’s responsibility to do so.

The court finds on behalf of the landlord on the tenant’s claim for breach of the warranty of habitability, finding that the mold and mildew were substantially caused by the tenant, and no damages shall be awarded the tenant on this claim.

5. Retaliation: The tenant claims that the landlord had him served with a 14-day notice to quit directly after he reported conditions of disrepair to the health department. The court finds, however, that the landlord had the tenant served with a non-payment of rent notice on June 9,

 

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2009 (Exhibit #7) which was prior to the June 22, 2009 complaint to the health department. Subsequent to the June 9, 2009 non-payment of rent notice, the tenant cured by paying all back rent. In July, 2009, the following month, the tenant did not pay his rent and the landlord sent him a 14-day notice to quit for non-payment of rent. The court finds that the landlord did not serve the July 15, 2009 notice to quit in retaliation for the tenant’s complaint to the health department and no damages shall be awarded the tenant on this claim.

6. Breach of the Covenant of Quiet Enjoyment: The tenant also seeks damages for the landlord’s entering of his apartment without his permission. The tenant proved that this happened on at least two occasions, June 21, 2009 and August 15, 2009. The landlord admits to entering the unit but explained that it was for good cause. In the first instant, she was informed by the tenant that a heating unit was sparking and she felt that this was an emergency. No violation of the covenant of quiet enjoyment is found for this entry. The subsequent entry, however, on August 15, 2009, at which time the landlord retrieved her de-humidifier, was not an emergency and was without advance permission of the tenant.

7. The landlord is liable for breach of the covenant of quiet enjoyment if the natural and probable consequence of his acts causes a serious interference with the tenancy or substantially impairs the character and value of the premises. G.L. c. 186, s. 14; Simon v. Solomon, 385 Mass. 91, 102, 431 N.E.2d 556, 565 (1982). I find and rule that by entering the premises on August 15, 2009, without the tenant’s permission in the manner the landlord did so here, substantially impaired the value of the premises and award the tenant a statutory damages equal to three months’ rent totaling $1,710 ($570 X 3).

8. Conclusion and Order for Entry of Judgment: 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

 

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order, deposit with the Clerk of this court the sum of $758.62. This represent $2,280 (landlord’s rent claim through October 31, 2009) minus $1,710 (tenant’s damages) + court costs of $188.62. If he does so, the sum deposited is forthwith to be released to the landlord, and judgment for possession is to enter for the tenant. If the tenant

fails to make the deposit required by this order, judgment is to enter for the plaintiff/landlord for possession and $570 plus costs at the expiration of the statutory ten day period.

 

 

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End Of Decision

 

HOUSING COURT

ATTORNEY GENERAL FOR THE COMMONWEALTH OF MASSACHUSETTS, and the CITY OF HOLYOKE, Plaintiff, v. DEUTSCHE BANK NATIONAL TRUST CO. AS INDENTURE TRUSTEE FOR AMERICAN HOME MORTGAGE SERVICING, Defendant

 

 

Western Division

 

 

Docket # No. 09-CV-1001

 

Parties: ATTORNEY GENERAL FOR THE COMMONWEALTH OF MASSACHUSETTS, and the CITY OF HOLYOKE, Plaintiff, v. DEUTSCHE BANK NATIONAL TRUST CO. AS INDENTURE TRUSTEE FOR AMERICAN HOME MORTGAGE SERVICING, Defendant

 

Judge: /s/Robert Fields, Associate Justice

 

Date: August 2009

 

ORDER

After hearing on August 10, 2009 for hearing on plaintiffs’ motion for an order of payment for repairs by the defendant bank, at which the plaintiffs appeared but the for which the defendant did not appear, the following order is to enter:

 

1. In accordance with G.L. c.111, s.127I and the general equity powers of the court, the defendant is hereby ordered to deposit $60,000 with the office of the Clerk Magistrate of the Housing Court, Western Division, 37 Elm Street, Springfield, MA 01103 within 30 days of the date of this order.

 

2. Said funds shall then be available for use by the Receiver to effectuate the repairs necessary to make the subject premises located at 142 Pine Street in Holyoke,

 

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MA. None of these funds, should they be timely deposited by the defendant, shall be disbursed to the Receiver without further court order.

 

3. The Receiver continues to be authorized to maintain the premises in a secured and maintained condition until further order of the court.

 

 

 

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End Of Decision

 

HOUSING COURT

LUIS COLON, Plaintiff, v. PHOENIX APTS., Defendant

 

 

 

Western Division

 

 

Docket # No. 09-CV-1414, 09-SP-2734

 

Parties: LUIS COLON, Plaintiff, v. PHOENIX APTS., Defendant

 

Judge: /s/Robert Fields, Associate Justice

 

Date: September 2009

 

ORDER

After hearing on September 4, 2009, on the tenant’s application for an injunctive order to stay the landlord’s use of the execution and cancel the physical eviction, at which both parties appeared, the following order is to enter:

 

1. The physical eviction now scheduled for Tuesday, September 8, 2009 is hereby cancelled.

 

2. The basis for this cancellation is due to the fact that the stated warehouse, Dean’s Warehouse, is not among those warehouses approved for storage of tenant’s belongings which are stored pursuant to G.L. c.239, s.s.3 and 4.

 

3. According to the requirements of the Department of Public Safety (“Department”) property that is removed from a premises in accordance with G.L. c.239, s.s.3 and 4 may not be stored at warehouses that have not been pre-approved by the Department.

 

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4. Because the warehouse noted in the 48-hour notice, Dean’s Warehouse, is not on the list of pre-approved warehouses, the physical eviction now scheduled for September 8, 2009 is hereby cancelled.

 

5. The landlord was instructed during the hearing to take all steps necessary to cancel the physical eviction.

 

 

 

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End Of Decision

 

HOUSING COURT

SARGEANT WEST II APTS., Plaintiff, v. LORNA LOZADA,

 

 

Western Division

 

 

Docket # No. 09-SP-800

 

Parties: SARGEANT WEST II APTS., Plaintiff, v. LORNA LOZADA,

 

Judge: /s/Robert Fields, Associate Justice

 

Date: August 2009

 

ORDER

After hearing on August 31, 2009, on the defendant’s (tenant’s) motion to stay use of the execution, at which both parties appeared, the following order is to enter:

 

1. The physical eviction currently scheduled for September 1, 2009 is hereby cancelled due to the insufficiency of the 48-hour notice used by the constables in this matter.

 

2. Specifically, the law requires that the 48-hour notice inform the tenant, among other things, the name and address and telephone number of the warehouse to be used. The notice is also required to state that the warehouser’s storage rates may be ascertained by contacting the commission of public safety and the address and telephone number of such agency. The notice used by the plaintiff (landlord) in this matter did not contain such information. (See G.L. c.239, s.3).

 

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3. The parties shall appear for review of this matter on September 1, 2009 at 9:00 a.m.

 

 

 

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End Of Decision

 

HOUSING COURT

CHICOPEE HOUSING AUTHORITY, Plaintiff v. JESSICA RAMOS, Defendant

 

 

Western Division

 

 

Docket # No. 09-SP-0452

 

Parties: CHICOPEE HOUSING AUTHORITY, Plaintiff v. JESSICA RAMOS, Defendant

 

Judge: /s/Robert Fields, Associate fate Justice

 

Date: December 8, 2009

 

FINDINGS, RULINGS, AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned summary process matter came before the court for trial on July 14 and July 16, 2009, at which time both parties appeared. After consideration of all the testimony offered and admitted at trial, the following findings, rulings, and order are to enter:

1. Findings of Fact. The plaintiff, Chicopee Housing Authority (“landlord”), is the owner of Cabot Manor Apartments (“Cabot Manor”) in Chicopee, MA.

2. The defendant, Jessica Ramos (“the tenant”), has been a tenant at Cabot Manor at 32 Plante Circle (“premises” or “apartment”) since October 28, 2005. She resides in the apartment with her three children, Luz, Carlos, and Nayelli, who are also named on the lease.

3. This case was originally scheduled to appear before this Court on March 20, 2009 based on a rental period termination for cause. The parties, however, entered into an agreement on March 20, 2009 without trial which stated the rent was then current, the rent

 

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would be paid by the seventh of each month, the case would be further monitored by the court for six months to ensure timely payment, and the tenant would abide by all provisions of the lease. Plaintiff is now seeking an entry of judgment for possession and execution alleging that the tenant violated this agreement by not adhering to the terms of the lease; specifically by “disturbing neighbors preventing them the peace and quiet enjoyment of their unit.”[1]

4. Alleged Incidents: On March 28, 2009 at 12:21 a.m. the Chicopee Police received a complaint of a disturbance located at 32 Plante Circle. Officer Terry J. Dec responded to the call. Officer

Dec approached the tenant’s apartment and knocked on the door. Receiving no response, Officer Dec opened the door and entered the apartment. Once in the apartment, Officer Dec observed between thirty to fifty people in the apartment drinking alcohol. Officer Dec testified that it was his opinion and observation that many of the people drinking were underage. Officer Dec then dispersed the party. The tenant was not present at this time and didn’t arrive until fifteen minutes after police arrived. Officer Dec warned the tenant that if the partying at her apartment became an ongoing problem, the Chicopee Housing Authority would be notified. There were no arrests and no tickets given.

5. On April 22, 2009 the Chicopee Police received a call regarding loud music at the tenant’s apartment. Officer Michael E. Morace was the responding officer. Upon arriving, Officer Morace noticed some young people hanging out in front of the tenant’s apartment and heard loud music coming from the apartment. Officer Morace knocked on the tenant’s door twice, but received no answer both times. He then asked one of the people at the front if they were there for the party. Officer Morace was informed they were there for the party so he told

 

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[1] Language of the motion for issuance of the execution filed by the landlord.

 

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them to go inside and get the person in charge of the party.

6. Once the tenant came to the door, she asked Officer Morace if there was a problem to which he responded that the loud music was the problem. Officer Morace then asked the tenant if he could come inside and see what was going on, to which the tenant said he could. Upon entering the premises, Officer Morace noticed that there were about twenty-five to thirty people in the apartment, but he did not see any drinking. Officer Morace had the music turned down and informed the tenant that a citation would be issued if any police officers had to come back to the apartment. The tenant then asked Officer Morace if he would ask the people in the apartment to quiet down, which he did.

7. About two hours later the police were summoned again to the house because of a complaint of loud music. Recognizing the address, Officer Morace went back to the apartment. By the time he had arrived the other responding officer had broken up the party. The apartment door was closed, so Officer Morace came back the next day to issue the tenant a citation for violating the City of Chicopee noise ordinance.[2]

8. At trial, during closing arguments, tenant moved to strike the testimony of both officers, arguing that their entry into the apartment violated tenant’s fourth amendment right to be free from warrantless searches. The landlord objected to the tenant’s motion as untimely and this court gave the parties an opportunity to brief the issue.

9. Motion to Strike: The tenant moved to strike Officer Dec and Officer Morace’s testimony alleging they violated the tenant’s Fourth Amendment and Article 14 rights to be

 

 

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[2] Landlord also presented evidence of a fight that occurred outside the tenant’s apartment. However, the evidence is clear that the fight was not initiated by the tenant and she was, in fact, the victim. The evidence as presented supplies no evidence of any breach of the lease and will not be held against the tenant.

 

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free from warrantless entry.[3] The tenant claims neither police officer had a warrant nor did they have any reason to justify a wavier of the warrant requirement and, thus, their testimony should be excluded. The landlord argues that the motion to strike was untimely. For the reasons stated herein, the landlord’s objection to the timeliness of the motion is OVERRULED; the tenant’s Motion to Strike testimony as it applies to Officer Dec’s testimony is GRANTED but is DENIED as it applies to Officer Morace’s testimony.

10. Discussion: Timeliness of Motion: Generally, when counsel wishes to object to evidence or testimony, they must object at the time opposing counsel is attempting to admit the evidence or testimony, when it becomes obvious that such evidence is objectionable, or before the close of the evidence or else the objection is considered untimely Solomon v. Dabrowski, 295 Mass. 358, 360 (1936); Cummings v. National Shawmut Bank of Boston, 284 Mass. 563, 568 (1934). Once an objection is considered untimely, the party loses the right to have its objection heard. A judge may then deny the motion just by virtue of the objection being untimely and does not have to consider the merits of the motion. Leonardi v. City of Peabody, 351 Mass. 706 (1966); Dabrowski, at 360 (a party is not as of right entitled to have a motion allowed when submitted at the close of evidence). However, “a party who succeeds in introducing incompetent evidence has no right to insist that it remain in the case. The trial judge may reconsider its admission, and strike it out of the case… provided there is no surprise or other hardship to the party introducing it.” Crowley v. Swanson, 283 Mass. 82, 85 (1909). See also Bachand v. Vidal, 328 Mass. 97, 103 (1951) (It is up to the discretion of the trial judge to allow an “untimely” motion).

 

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[3] Tenant’s motion was labeled as a motion to suppress, but will be treated as a motion to strike since the testimony was already offered into the record.

 

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11. While there may be an argument that the tenant’s motion to strike was a surprise, any prejudice to the landlord due to the late nature of the motion is cured by the opportunity they were given to brief the issue. Using its discretion, this court has decided to consider the tenant’s motion to strike and therefore overrules the landlord’s objection to the motion.

12. Constitutionality of Search: Warrantless entries into the home are prohibited by the Fourth Amendment to the United States

Constitution and Article 14 of the Massachusetts Declaration of Rights (“Article 14″) absent both probable cause and exigent circumstances, or consent, and are subject to suppression. Corn. v. Rogers, 444 Mass. 234, 236 (2005). When the police rely on consent to justify a warrantless entry, the prosecution “has the burden of proving that the consent was, in fact, freely and voluntarily given.” Id at 237. Exigent circumstances have been defined as a “compelling need for official action and no time to secure a warrant.” Michigan v. Tyler, 436 U.S. 499, 509 (1978). When a search is conducted without a warrant, the burden is on the Commonwealth (here, the Housing Authority) to show that the search falls within the class of permissible exceptions justifying the warrantless search. Corn. v. Marchione, 384 Mass. 8, 10 (1981).

13. The tenant argues that both Officer Dec and Officer Morace’s entry into the apartment was a violation of her rights under the Fourth Amendment and Article 14 to be free from warrantless searches and seizures as neither police officer had a warrant, consent, or exigent circumstances to enter. While the landlord admits that neither officer had a warrant, it argues that both officers had consent to enter, or in the alternative, exigent circumstances existed to justify their entry.

14. Regarding the March 28, 2009 incident, Officer Dec admitted he did not have a

 

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warrant. He also did not receive any consent to enter. Officer Dec testified he knocked twice then entered since he received no response. In fact, the tenant was not even present during his entry and could not consent as such. Officer Dec, therefore, must have had some exigent circumstance to justify his entry or else his entry would be illegal. Officer Dec testified that he felt justified in entering the apartment in order to protect the health and safety of the party-goers, though no evidence was given that Officer Dec knew of any dangers that existed before he entered. Finally, the landlord argues that the violation of the Chicopee noise ordinance by itself justified Officer Dec’s entry. Massachusetts case law does not support this reasoning. See Commonwealth v. Kiser, 48 Mass.App.Ct. 647, 651-652 (2000)(violation of noise ordinance does not create exigent circumstance that justifies a warrantless entry). Thus, Officer Dec did not have a warrant, consent, nor exigent circumstance to justify entering the tenant’s apartment. His entry was a violation of tenant’s rights under the Fourth Amendment to the United States Constitution and Article 14 of the Massachusetts Declaration of Rights and, therefore, illegal.

15. Regarding the April 22, 2009 incident, even though Officer Morace did not have a warrant, both the tenant and Officer Morace testified that he was given consent from the tenant to enter. Therefore Officer Morace was justified in his warrantless entry and no further analysis is necessary to support a find that his entry was legal.

16. Exclusionary Rule In Civil Proceedings: Though Officer Dec’s entry into the tenant’s apartment was illegal, an inquiry into whether the exclusionary rule is proper in this proceeding is necessary. In New Bedford Housing Authority v. Olan, 50 Mass. App. Ct. 188, 203 (2000), the Appeals Court held that “when a [party]

claims a Fourth Amendment

 

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violation in a civil action, an analysis of whether the police are lawfully present is no different than in the criminal context. Tyree v. Keane, 400 Mass. 1, 7-8 (1987). In both criminal and civil proceedings, a warrantless search by the police is per se unlawful unless the police can rely on one of the “‘specifically established and well-delineated exceptions” to justify the search.’ Id. at 8. See Selectmen of Framingham v. Municipal Ct. of Boston, 373 Mass. 783, 785 (1977) (Evidence obtained from a warrantless search of an officer’s home was inadmissible in an administrative hearing to remove that officer.); Pasqualone v. Gately, 422 Mass. 398, 401-402 (1996). In both criminal and civil proceedings, the burden of proof is on the government, here, the housing authority, to justify the warrantless search. Tyree v. Keane, supra at 7. Otherwise, the evidence is rendered inadmissible by the “exclusionary rule” because it was obtained through an unconstitutional search and seizure. [See the following cases for application of the exclusionary rule in summary process actions: Lowell Housing Authority v. Jose Rivera Martinez, Northeast Housing Court Docket #05-SP-448 (Kerman, J., 2005); Boston Housing Authority v. Tachia Andrews, Boston Housing Court Docket #05-SP-1781 (Pierce, J., 2006); Lowell Housing Authority v. Georgette Lantagne, Northeast Housing Court Docket #06-SP-1867 (Kerman, J., 2006)]

17. Quasi-Criminal Nature of Case: The tenant also argues that the exclusionary rule should be applied because this matter as it is one of a quasi-criminal nature given the fact that this case is a forfeiture proceeding. Tenant cites two cases, One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965) and Boston Housing Authority v. Guirola, 410 Mass. 820 (1991) for the proposition that since the result of these proceeding is forfeiture of possession of defendant’s property, the case becomes quasi-criminal in nature and therefore necessitates

 

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the use of the exclusionary rule. The landlord argues on this point that this case is not one of a quasi-criminal nature given the fact that it does not seek to evict the tenant based on G.L.c. 139, s.19, but rather is seeking possession based on the tenant’s alleged violation of the lease.

18. The landlord is correct in its position that this case is not of a quasi-criminal nature. Because the landlord is not seeking eviction based on G.L.c. 139, s.19, this case is one of a purely civil nature.

19. The Supreme Court in held in One 1958 Plymouth Sedan, that forfeiture proceedings are quasi-criminal in character when they are directed toward penalizing for commission of offense against law. Given its similarity to a criminal proceeding, the Supreme Court held the purpose of the forfeiture in that case was to punish for criminal behavior and therefore the Fourth Amendment applied in the same manner as it does in a criminal proceeding. Id. at 693.

20. In the case at hand, the landlord is not seeking possession for any supposed crimes the tenant allegedly committed; instead it is

seeking possession for a breach of the lease. Reflected by the contractual nature of the lease, any breach of the lease is equivalent of a breach of contract between two private parties, which is well within the nature of a civil proceeding.

21. Exclusionary Rule as Deterrent: In its argument for the use of the exclusionary rule in this case, the tenant also argues that the use of the exclusionary rule in this matter is needed to act as a deterrent against the use illegal entries by the Chicopee Police Department in housing authority matters. In citing Board of Selectmen of Framingham v. Municipal Court of City of Boston, 373 Mass. 783 (1977), the tenant highlights how the exclusionary

 

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rule in civil proceedings serves as a form of deterrence against law enforcement officials from further violations of an individual’s constitutional rights. Id.

22. In the case at hand, Officer Dec testified that he would report the tenant to the landlord, which is a public housing authority. The quasi-governmental nature of the landlord prompted the concept to the police officer to report the incident more so than if the landlord was not a housing authority. The deterrence purpose enters here by putting the Chicopee Police Department on notice that they may not enter an apartment without probable cause and then report illegally obtained evidence to the Chicopee Housing Authority.

23. Moreover, given the quasi-governmental nature of the landlord, a public housing authority, there is also a concern of judicial integrity. The SJC expressed this concern in Framingham when it held ” `judicial integrity’ is at stake in the sense that the government is seeking to take advantage of its own lawbreaking to punish the victim of the illegality.” Id at 787. The distinction that the landlord is not technically an arm of state or municipal government is blurred in the public domain and where an apparent subdivision of the government it is attempting to use evidence illegally obtained by the Chicopee Police, judicial integrity requires this court to prevent it from taking advantage of Officer Dec’s illegal search. For the foregoing reasons, the court applies the exclusionary rule and is compelled to exclude Officer Dec’s testimony.

24. Conclusion and Order for Entry of Judgment: The evidence proven at trial by the landlord in support of its case for possession is the sole incident that occurred On April 22, 2009 as was reported by Officer Morace. Though the court acknowledges the serious nature of that incident, which involved noise complaints arising out of the tenant having twenty-five

 

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to thirty people in her apartment, such an event, by itself, in the absence of admissible evidence as to any other incident, is not a basis for finding a material breach of the lease. Given the posture of this case (that the agreement of the parties allowed for monitoring of this case for six months until September 30, 2009), judgment for possession shall enter for the tenant and the case is hereby dismissed.

 

 

 

 

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End Of Decision

 

HOUSING COURT

BRIARWOOD FOUR, LLC, Plaintiff v. JUSTIN LABOMBARD, Defendant

 

 

Western Division

 

 

Docket # No. 08-SP-4787

 

Parties: BRIARWOOD FOUR, LLC, Plaintiff v. JUSTIN LABOMBARD, Defendant

 

Judge: /s/Robert G. Fields

Associate Justice

 

Date: December 2009

 

ORDER ON PLAINTIFF’S MOTION TO AMEND JUDGMENT

The above-captioned matter is before the court on the plaintiff landlord’s (“landlord’s”) motion to amend the judgment. After hearing, for which only the landlord appeared, and after review of the record and written submissions, the following Order is to enter.

1. BACKGROUND. The parties in this action entered into a written one-year lease agreement for the period of November 1, 2008 through October 31, 2009. On December 24, 2008, the landlord filed the instant summary process complaint for nonpayment of rent against the defendant tenant (“tenant”). On January 9, 2009, the landlord recovered a judgment by default for possession, rent, and court costs against the tenant in the amount of $1,074.68, with execution issuing on March 18, 2009. A duplicate execution was issued on June 4, 2009 for possession and damages in the amount of $1,121.75. The tenant subsequently vacated the subject property on or about July 6, 2009.

2. On or about August 12, 2009, the landlord filed a motion to amend the judgment to include rent through the remainder of the lease term, as well as costs. At hearing on August 25, 2009, Judge Fein questioned whether the tenant was responsible for rental charges for the period

 

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after the tenant had vacated the premises and where the landlord had terminated the lease. Judge Fein informed the landlord that if it wished to pursue such charges in the summary process action, it would need to obtain counsel. The landlord withdrew the motion.

3. On September 15, 2009, the landlord filed a second motion to amend the judgment. At hearing on September 22, 2009, I requested that the landlord submit an affidavit setting forth more clearly its request. On September 25, 2009, the landlord filed the affidavit of Debra Schulz, an employee of the landlord, setting forth the landlord’s claim. As best I can glean from the affidavit, the landlord now seeks to amend the judgment to include additional rental charges in the amount of $3,190, as well as an $80 late fee, a $40 service fee, and a $250 re-rental fee. It states that the total amount owed on the tenant’s account is $3,720.

4. DISCUSSION. To the extent that the landlord seeks late fees and a re-rental fee, this request is denied with prejudice as it seeks damages beyond those allowed in a summary process action. G.L. c. 239, s. 2 (relief in summary process actions limited to rent, possession, and use and occupation); See also Deep v. Tatro, Housing Court-Western Division, 08-SP-2658 (Fein, J. 2008) (late fees are not “rent” and therefore may not be recovered in a summary process action). The landlord’s request to include a $40 fee for service of

a notice to quit pursuant to the lease agreement is also denied. Even assuming, arguendo, that the landlord is entitled to recover for this cost in a summary process action, it has provided the court with no proof of such service.

5. Finally, the landlord requests that the judgment be amended to include additional rent in the amount of $3,190.00. This request must additionally be denied. First, the affidavit relied upon by the landlord states that the total amount owing on the tenant’s account is $3,720. It is unclear to the court whether this figure was intended to include only the new charges set forth in

 

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the affidavit, or whether it includes any or all of the original judgment, or is meant to reflect partial payment by the tenant. Second, the affidavit states that the tenant owes rent for the period of April, 2009 through July, 2009 at a rate of $800 per month, for a total of $3,190. This, however, does not appear mathematically correct ($800 x 4 = $3,200). “`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.’ Deep v. Bucier, Western Division Housing Court No. 07-SP-0993 (Fein, J.) Where the party who bears the burden of proof fails to meet it, he is not entitled to recover.” Deep v. Tatro, supra at *3,

6. ORDER. The landlord’s motion to amend the judgment is denied.

 

So entered this _____ day of December, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

CITY OF SPRINGFIELD CODE ENFORCEMENT DEPARTMENT, HOUSING DIVISION, Plaintiff v. DOMINGO FRANCISCO, et al, Defendants

 

Western Division

 

 

Docket # No. 09-CV-1863

 

Parties: CITY OF SPRINGFIELD CODE ENFORCEMENT DEPARTMENT, HOUSING DIVISION, Plaintiff v. DOMINGO FRANCISCO, et al, Defendants

 

Judge: /s/Robert G. Fields

Associate Justice

 

Date: December 2009

 

ORDER ON PETITION TO ENFORCE THE STATE SANITARY CODE AND FOR APPOINTMENT OF A RECEIVER FOR 23-25 PORTLAND STREET, SPRINGFIELD

Pursuant to the general equity powers of this court and G.L. Chapter 111, Sections 127F-I, following hearing on December 7, 2009, the court hereby finds with respect to 23-25 Portland Street, Springfield (“the Property”):

1. Background: On or about December 1, 2009, the plaintiff City of Springfield (“Petitioner”) condemned the first floor unit of the Property based on serious violations of the State Sanitary Code (“Code”), and ordered all of the occupants to vacate. On December 2, 2009, the Petitioner filed the instant action against the defendant owners Domingo and Dolores Francisco (“Respondents”), the defendant tenants of the Property, and the mortgagees of the Property,

Wilmington Finance and Mortgage Electronic Registration Systems, Inc. In particular, the Petitioner sought to enforce its order requiring all occupants of the first floor unit to vacate, and additionally filed a motion for a receiver be appointed to take control of the Property and make the required repairs.

 

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At hearing on December 7, 2009, the court determined that first floor unit of the Property was not habitable based on the serious Code violations present, including lack of heat and hot water. The Petitioner’s motion to enforce its order to vacate that unit of the Property was therefore allowed. At the same time, it became clear that there was no entity in control of the Property, and that the Property would not promptly be brought into Code compliance without the appointment of a receiver, and therefore allowed the Petitioner’s motion to place the Property into receivership.[1] Gregory Dewberry was found by the court to be uniquely qualified to serve as receiver for the Property. Specifically, Mr. Dewberry is familiar with the Respondents, as he was recently appointed receiver for another Property owned by them located at 400-402 Page Boulevard, Springfield. See City of Springfield Code Enforcement Department, Housing Division v. Domingo Fancisco, et al, Housing Court Western Division, Docket No. 08-CV-1598 (Fields, J. 2009).

2. Description and Conditions of the Properties: The Property is an occupied three-family home. Inspections of the Property performed by the Petitioner on April 15, 2009, May 19, 2009, and November 24, 2009 revealed the existence of serious interior and exterior conditions which violate the Code’s standards of fitness for human habitation. These include, inter alia, leaky pipes, lack of heat and hot water, lack of smoke and carbon monoxide detectors, evidence of roach and rodent infestation, broken and/or rotted windows, missing and/or broken locks, and

 

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[1] Due to the serious and emergency nature of the conditions at the Property, the court allowed the Petitioner’s request to shorten the notice period required to be given to lenders under G.L. c. 111, s. 127I.

 

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litter, trash and debris.[2] The Respondents have demonstrated an unwillingness or inability to correct these violations.[3] Due to the unhabitable conditions in the first floor unit of the Property, it has been condemned and is currently under an order to vacate.

3. Available remedies. G.L. c. 111, s.127I authorizes appointment of a receiver where violations of the Code will not be promptly remedied unless a receiver is appointed, and where such appointment is in the best interest of the occupants. The Respondents have failed to manage and maintain the Property in compliance with the Code, and the Code violations will not be promptly remedied unless a receiver is appointed. The Respondents’ failure to manage and maintain the Property, and failure to promptly come into compliance with the Code, endangers or materially impairs the health and safety of the current and future occupants of the Property, as

well as the surrounding community. Appointment of a Receiver is in the best interest of all occupants of the Property and of public safety.

THEREFORE, following hearing on December 7, 2009, and with notice to the mortgagees and lienors, the court hereby ORDERS as follows:

4. Receiver: Gregory Dewberry (“Receiver”) is hereby appointed as Receiver of the Property. At any time, any party to these proceedings or the Housing Specialist Department may request a review or modification of this appointment and the terms thereof, as set forth below. Upon completion of the necessary repairs, the Receiver shall immediately notify the court.

 

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[2] An exhaustive list of the outstanding Code violations can be found at Exhibit A attached to the Petitioner’s original and amended complaints.

 

[3] The Respondents have been cited for numerous violations over the past year at the Property, and have failed to make the required repairs.

 

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5. Authority and Duties of the Receiver. The authority and duties of the Receiver shall be

as follows:

 

(A) To employ companies, persons or agents to perform its duties hereunder.

 

(B) To receive and collect all rental revenues due from any tenants or occupants of the Property as an agent of the court for and after the first rental period following the effective date of the Receiver under this paragraph:

 

(i) to inform all tenants and occupants from whom rent will be sought of the pertinent provisions of this order pursuant to paragraph 8 of this order; and

 

(ii) to account for all receipts according to the standards set forth in subparagraph 5(F), below. The Receiver shall not be authorized to raise rents without leave of court.

 

(C) To deposit all amounts received on account of the Property into a separate account under the control of the Receiver;

 

(D) To inspect the Property to determine what “Emergency Repairs” are needed to correct violations of the Code and of applicable fire safety, electrical building, and plumbing codes existing at the Property, and to perform or cause to be performed, if necessary such Emergency Repairs;[4]

 

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[4] For purposes of this section, “Emergency Repairs” are repairs necessary to eliminate violations which materially alter

the health or safety of the occupants of the Property, or which may materially endanger or materially impair the health or safety of the occupants in the near future if corrective action is not taken.

 

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(E) To disburse funds received by the Receiver on account of the Property as follows, in the following order of priority:

 

First- To reimburse the Receiver for its actual out-of-pocket expenses incurred in its capacity as Receiver, including without limitation its reasonable legal fees, its allocable overhead and labor costs, and its costs liability insurance (“Receiver Out-Of-Pocket Expenses”);

 

Second- To secure any vacant units at the Property.

 

Third- To make emergency repairs to occupied and vacant units at the Property.[5]

 

Fourth- To pay the Receiver its fees for acting as the Receiver as set forth below:

 

(a) A reasonable management fee consistent with industry standards in the area; and

 

(b) A reasonable hourly rate consistent with industry standards for maintenance work performed by the Receiver or its agents in repairing or maintaining the Property.[6]

 

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[5] Any dispute regarding the priority of expenditures for emergency repairs shall be referred to the Housing Specialist Department, whose determination shall be binding on the parties unless modified by the court, upon motion of any affected party.

 

[6] The management and maintenance fees are to be determined in the first instance by the Housing Specialist Department, subject to review by the court upon request of the Receiver or any party

 

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Fifth- To make repairs, to the extent possible, of conditions which may violate the Code or applicable fire safety, electrical or building codes or ordinances, but which do not rise to the level of “Emergency Repairs” as defined above, as well as to maintain the Property free of any litter or debris.

 

Sixth- To make payments, to the extent possible, towards any unpaid taxes, utilities, assessments, penalties or interest.

 

Seventh- To make payments, to the extent possible, due any

mortgagee or lienor of record.

 

(F) The Receiver shall file a report with the court, setting forth all expenses and disbursements of the Receivership, with attached receipts, and an accounting of all funds received by the Receiver during the period covered by such report, including a list of all occupants residing at the Property, together with a list of current rental amounts and the status of their rent payments to date and funds from other sources. Additionally, the Receiver shall include a detailed list of what repairs need to be performed, along with a schedule prioritizing the order in which such repairs shall be completed. The Receiver shall serve upon all parties a copy of this report no later than January 13, 2010, and every eight (8) weeks thereafter, unless a different a different schedule is authorized by the Court.

 

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Copies shall also be sent to any mortgagees or lienors who file appearances in this action.

 

(G) The Receiver shall complete such documentation and perform such functions as may be necessary in order for occupants to receive public benefits and housing subsidy benefits (such as fuel assistance, food stamps, AFDC, Section 8, and the MRVP Program), provided that the Receiver’s obligations shall not exceed those customarily performed by residential landlords of low/moderate income tenants. The Receiver is hereby authorized to execute any documents necessary to be executed by the tenants’ landlord in connection with such benefits programs.

 

(H) The Receiver may rent vacant apartments already in compliance with the Code, and may repair vacant units so as to bring them in compliance with the Code. Vacant units, however, shall remain secured until such time as they are in compliance with the Code and an occupancy permit has been issued.

 

(I) Evictions for Nonpayment of Rent. Evictions for non-payment of rent shall be governed by the Uniform Summary Process Rules, and G.L. Chapters 186 and 239, and the Receiver shall not collect rent for the period of time prior to this appointment.

 

(J) Evictions for Cause. The Receiver is granted the right to bring

 

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evictions for cause. The Receiver shall not have the right to terminate tenancies at will without cause, or bring summary process actions without cause.

 

(K) The Receiver shall be represented by counsel at all future proceedings relative to this receivership, including any summary process proceedings that my flow from this receivership.

 

6. Bond and Inventory. The Receiver shall not be required to

file a bond, nor shall the Receiver be required to file an inventory, list of encumbrances, list of creditors or any other report required to be filed by Rule 66 of the Massachusetts Rules of Civil Procedure, except as otherwise specifically provided herein.

 

7. Rent Payments.

 

(A) The Receiver is authorized to begin collecting rent forthwith at the current fair market rate as determined by the Receiver. Rent payments may be timed so as to coincide with the receipt of public benefits checks. Rent shall be mailed to or delivered to the Receiver, in accordance with the Notice to All Occupants described in paragraph 8, below.

 

(B) If any occupant believes the amount of rent required to be paid hereunder should be decreased with respect to any unit because of the conditions in or affecting that unit, the occupant may make a written request for modification to the Housing Specialist Department, with copies to all parties. Upon receipt of any such request, the Housing Specialist shall inspect the unit and associated common areas, and shall thereafter provide

 

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a recommendation to the court. Such recommendations shall be based solely upon the condition of the premises. The recommendations of the Housing Specialist shall be binding upon the parties.

 

8. Notice to Tenants. The Receiver shall forthwith complete and deliver or mail the Notice To All Occupants, attached hereto as Exhibit A, to all tenants and occupants of the Properties.

 

9. Liability and Agency.

 

(A) The Receiver shall forthwith acquire general liability insurance in the amount of $1,000,000.00, or such other amount as is consistent with industry standards, and provide proof of coverage to the court no later than January 13, 2010. The cost of insurance shall be shall be given first priority under paragraph 5 of this Order.

 

(B) The Receiver shall have no responsibility whatsoever to make any advances on account of the Property, except as approved by the court.

 

10. Right to Resign. The Receiver shall have the right to resign at any time by giving ten (10) days prior written notice to the court and to the parties. The notice of resignation shall include a copy of any rent roll and rental history the Receiver has compiled and an accounting of all funds received and disbursed during its term as Receiver. Such resignation shall be effective on the date specified in such notice, provided, that the court may require the Receiver to take such actions after the date specified if the court

determines that such actions are required to protect the health or safety of the occupants and that the Receiver has the capacity to perform such functions consistent with the

 

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terms of this order. Unless otherwise ordered, on the effective date of such resignation, the Receiver shall assign any and all amounts received by it to the court or to a successor receiver.

 

11. Priority Liens and Mortgages. The Receiver shall have a priority lien under the “super-priority” provision of G.L. c. 111 s. 127I, as amended, third paragraph upon recording of this Order.

 

 

12. Notice to Creditors. The Receiver shall send a copy of this Order to all mortgagees and lienors of record.

 

13. Sale of the Properties. The Property shall not be foreclosed upon, transferred, sold, encumbered or placed under contract for sale without prior leave of the court.

 

14. The Respondents. To the extent not already completed, the Respondents shall: (i) within 48 hours of the signing of this Order, transfer to the Receiver all keys to apartments and common areas of the premises and any rent roll for all apartments at the Property; (ii) within seven (7) days of the signing of this Order, the Respondents shall provide to the Receiver copies of all documents necessary to manage and maintain the Property; and (iii) shall provide at least the following information:

 

(A) Residential Units: the amount and due date of the rent; and copies of any leases or written tenancy agreements.

 

(B) Mortgages and Liens: the name and address of all mortgagees and lienors of record; the amount of the lien or mortgage.

 

(C) Insurance: the name, address, and telephone number of all insurance companies and their agents providing insurance coverage for the Property; the amount and type of coverage; and

 

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the amount and due dates of premiums.

 

(D) Utilities: the amount of the most recent water, sewer, gas, and electric bills; the amount of any outstanding balance; and the date and amount of the last payment.

 

(E) Real Estate Tax: the amount of the most recent real estate tax bill; the amount of any outstanding balance; and the date and amount of the last payment.

 

(F) Contracts: copies of all warranties for prior work done, service contracts for ongoing maintenance (e.g. for extermination), and all contracts or bids for repairs.

 

 

(G) Other: all information relevant to any outstanding expenses relating to the Properties.

 

The Respondents shall not enter any part of the Property without prior approval of the Receiver, the court, or a Housing Specialist.

The Respondents shall not terminate any insurance coverage to the Property without first seeking leave of this court.

 

15. Motions and Notices. The Petitioner or any other interested parties shall have the right to request from the court, by motion and with advance notice, further orders consistent with G.L. c. 111, s. 127I, common law, or the terms of this Order. In the event of emergencies, service of motions to parties on this action by facsimile transmission shall be acceptable.

 

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16. Recording. The Receiver shall forthwith record a copy of this Order with the Hampden County Registry of Deeds, so as to provide record notice of the existence of this order. The Receiver shall file a certified copy of all documents recorded at the Registry with the court.

 

17. Review by Court. The foregoing order shall remain in effect until further notice of the court. The Receiver and all other affected parties shall report on the Receiver’s progress to the court on December 11, 2010 at 9:30 a.m.

 

18. Effective Date. This Receivership shall take effect nunc pro tunc on December 7, 2009 at 5:00 p.m.

 

So entered this ____ day of December, 2009.

 

 

 

cc: Jesse Cochin, Assistant Clerk Magistrate

Michael Doherty, Assistant Chief Housing Specialist

 

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End Of Decision

 

HOUSING COURT

JOHN HERBERT, Plaintiff, v. GWENDOLYN HARDRICK, Defendant.

 

Western Division

 

 

Docket # No. 09-SP-3541

 

Parties: JOHN HERBERT, Plaintiff, v. GWENDOLYN HARDRICK, Defendant.

 

Judge: /s/Robert G. Fields

Associate Justice

 

Date: November 9, 2009

 

FINDING, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned summary process (eviction) case came before the court for trial on November 5, 2009, after which the following findings of facts and rulings of law and judgment shall enter:

1. Background: The plaintiff, John Herbert (landlord), owns a four-family property located at 35 James Street in Holyoke, Massachusetts, and rents one of the units to the defendant, Gwendolyn Hardrick (tenant). The tenancy began on August 1, 2005 and the current rental rate is $670 per month.

2. The Landlord’s Claim for Possession: The landlord has established the prima facie elements of his claim for rent and for possession, having served a rental period notice and then a properly timed summary process summons and complaint. The outstanding rent through November, 2009 is $5,600.

 

 

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3. Tenant’s claims: What remains, therefore, are the tenant’s claims and defenses which allege conditions of disrepair and a chronic and very serious flooding problem in the basement.

4. Breaches of the warranty of habitability; conditions: Upon the consideration of all the evidence and testimony of the parties, the court finds that the tenant failed to meet her burden of proof that there existed or currently exists conditions of disrepair on the premises in violation of the warranty of habitability. As such, no damages shall be awarded the tenant on this claim.

5. Breach of the Covenant of Quiet Enjoyment; the cellar flooding: There is a history of flooding in the basement of the premises. The landlord explained that he understands that a shifting of the water table or of an actual underground stream directly below the premises caused water to penetrate the cellar floor. The landlord first addressed this problem in October, 2006 by installing a permanent water pump system in the cellar. This device was in use until it failed in April, 2009 when the landlord had it replaced. On the several occasions when flooding emergencies have arisen during this tenancy the landlord was attentive, arriving at the premises to remove excess water and to install and reinstall a water pumping system.

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

 

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528, 530 (1997) .

6. Distinct from the landlord’s attentiveness in instances of a flooding emergency as noted above, I find and rule that the landlord was “at least negligent,” and breached the covenant of quiet enjoyment in violation of G.L. c. 186, s. 14, by failing to take more significant steps to avoid damage and inconvenience to the tenant in the event of flooding. The landlord is very aware that there is a great potential for flooding due to the redirection of an underground stream directly under the house. And though the pump system works for the most part, it is subject to failure. There are both easy steps that could have been taken, such as creating pallets for the tenant’s belongings, or possibly more extensive steps such as a drainage

system. The landlord did not provide any evidence that he has taken any steps other than to install the pump system, replace it when it failed, and to attend on an emergency basis to flooding. As such, the tenant is awarded statutory damages equal to three months’ rent, totaling $2,010.

7. Order for Entry of Judgment: 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 $3,771.46. This represent $5,600 (landlord’s rent claim) – $2,010 (tenant’s damages) plus court costs of $181.46. If the tenant makes this deposit with the court, the sum deposited is forthwith to be released to the landlords 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 landlord for possession and $3,950 plus $181.46 in court costs against the tenant at the expiration of the statutory ten day period.

 

So entered this 9th day of November, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

SALAZAR DOS SANTOS, Plaintiff, v. JON BOUCHER, Defendant.

 

Western Division

 

 

Docket # No. 09-SP-3807

 

Parties: SALAZAR DOS SANTOS, Plaintiff, v. JON BOUCHER, Defendant.

 

Judge: /s/Robert G. Fields

Associate Justice

 

Date: November 2009

 

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned summary process (eviction) matter came before the court for trial on October 22, 2009 at which both parties appeared without counsel and after which the following findings of facts and rulings of law are to enter:

1. Background: The plaintiff, Salazar Dos Santos (landlord), owns an 8-unit residential building at 40 Abbey Street in Chicopee, Massachusetts where he rents the back-right unit (the premises) to the defendant, Jon Boucher (tenant). The tenancy began on or about June 3, 2009 and the rent is $525 per month.

2. The Landlord’s Claim for Possession: The landlord served the tenant with a no-fault rental period termination notice on August 31, 2009. The landlord then had the tenant served with a summons in a timely fashion stating that the reason for the eviction was tenant

 

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misconduct. At trial, it became very clear that the landlord was seeking eviction of the tenant due to an incident on August 30, 2009 in which the landlord alleges that when he approached the tenant for having loud music in his apartment the tenant responded in a verbally belligerent manner. Though the tenant did not admit to all of what the landlord described, he admitted that he may have responded inappropriately to the landlord on that occasion and that he understands why the landlord may have viewed his behavior as

unnecessarily aggressive.

3. The Tenant’s Defense: Reasonable Accommodation: The case, however, does not end there. The tenant explained that he suffers from a bi-polar disorder, for which he receives Social Security benefits, and that due to a temporary curtailment of insurance coverage (through no fault of his own), he has not been able to fill his medical prescriptions. The tenant explained that he believes that the behavior he exhibited on August 30, 2009 was a direct result of his lack of medication.[1]

4. I find that the tenant is handicapped within the meaning of the Federal Rehabilitation Act of 1973, 29 U.S. C. s.794 and the Federal Fair Housing Act at 42 U.S.C. s.3604 and within the meaning of Art. 114 of the Massachusetts Constitution and the State Fair Housing Act at G.L. c.151 B. These laws provide that it is unlawful to discriminate in the rental of a dwelling against a person because of a handicap including the “refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford

 

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[1] At the trial hearing, the court referred the matter to the Tenancy Preservation Program (TPP) for a consultation on clarifying or remedying the insurance problem. After a brief recess in the hearing, TPP was able to verify that the tenant’s insurance problem would be cleared up by November 1, 2009 and secured a means for the tenant to obtain his medications in the meantime. A review of the status of those issues was conducted on October 29,2009; at which time TPP and the tenant reported that the tenant was able to secure his medications in the interim.

 

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such person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. s.3604(0(3)(B).[3] The term handicapped is defined as “(1) a physical or mental impairment which substantially limits one or more of such person’s major life activities, (2) a record of having such impairment, or (3) being regarded as having such an impairment.” Peabody Properties, Inc. v. Sherman, 418 Mass. 603, 605-606 (1994). “A ‘reasonable accommodation’ is one which would not impose an undue hardship or burden on the entity making the accommodation.” Furthermore, it is one that will enable a tenant to comply with the terms of his tenancy. Id. at 608.

5. Applying these protections to the present case, the accommodation would be to have the landlord forbear from further eviction steps to allow the tenant to take the steps necessary to secure insurance coverage so that he may receive necessary medications that promise to enable him to live in a manner that does not violate his lease terms. Such forbearance seems reasonable as long as the tenant can comply with the lease requirements for the long term. See, Citywide Associates V. Eleanor Penfield, Hampden County Housing Court No. 89-SP-9147 (Abrashkin, J. 1989). Additionally, a grant of additional time to solve a problem may constitute reasonable accommodation to a tenant who is disabled. Schuett Ivestment Co. v. Anderson, 386 N.W.2d 249 (Minn. App. 1986).[2]

 

6. Conclusion and Order: Based on the foregoing reasons, judgment shall enter for the

 

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[2] Additionally, it is an old common law principle that equity does not favor the forfeiture of a leasehold. See, Mactier v. Osborn, 146 Mass. 399, 402 (1888); Eno Systems, Inc. v. Eno, 311 Mass. 334 (1942). Equitable relief is appropriate where the specific facts and circumstances of the case suggest that a remedy less drastic than eviction can be fashioned that will prevent a continuance of the conduct that gave rise to the lease violations. See, Howard D. Johnson Co. v. Madigan, 361 Mass. 454 (1972). In such instances the court should enjoin the forfeiture of the tenancy only upon terms and conditions that will place the landlord in the same condition as if the breach had not occurred. Mactier v. Osborn, Id.

 

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plaintiff landlord for possession. The court finds, however, that the accommodation proposed and analyzed herein is reasonable and, therefore, the tenant has met his burden of proof on a defense of a disability requiring a reasonable accommodation. Accordingly, execution shall be stayed for three months. During that time period, the landlord may bring this matter before the court, upon motion, if he alleges that the tenant has behaved in a manner which violates the lease. TPP has agreed to remain available to tenant on a consultancy basis should further problems arise with the tenant’s insurance coverage. Unless modified by agreement of the parties or by the court, this matter shall be dismissed on February 15, 2010.

 

So entered this ____ day of November, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

XIUYU MA, Plaintiff, WILLIAM GRAY, Defendant.

 

Western Division

 

 

Docket # No. 09-SP-3721

 

Parties: XIUYU MA, Plaintiff, WILLIAM GRAY, Defendant.

 

Judge: /s/Robert Fields

Associate Justice

 

Date: July 2009

 

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned summary process (eviction) case came before the court for trial on October 22, 2009, after which the following findings of facts and rulings of law and judgment shall enter:

1. Background: The plaintiff, Xiuyu Ma (landlord), owns a two-family property located at 60-6.2 W. Alvord Street in Springfield, Massachusetts, and rents the top floor apartment to the defendant, William Gray (tenant). The tenancy began on April 1, 2009 at a rental rate of $1,250 per month.

2. The Landlord’s Claim for Possession: The landlord has established much of her prima facie case for possession and rent. She

gave the tenant a 14-day notice to quit for non-payment of rent on September 8, 2009 and then had him served with a summary process summons and complaint. The parties do, however, dispute how much rent is owing. The

 

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landlord asserts that the tenant owes $1,550 and the tenant claims $1,350. The court finds based on all the evidence that $1,550 for use and occupancy is outstanding through October, 2009.

3. Tenant’s claims: What remains, therefore, are the tenant’s claims and defenses which allege three things: (1) a lack of heat on the premises, (2) a failure by the landlord to remedy several conditions of disrepair, and (3) that the landlord breached his covenant of quiet enjoyment by entering his room and removing his personal belongings.

4. Heat and other alleged breaches of the warranty of habitability: Upon the consideration of all the evidence and testimony of the parties, the court finds that the tenant failed to meet his burden of proof that there exists conditions of disrepair on the premises in violation of the warranty of habitability. As such, no damages shall be awarded the tenant on this claim.

5. Breach of the Covenant of Quiet Enjoyment: On or about October 14, 2009, the tenant was arrested on the premises and was incarcerated. That evening, the landlord entered the tenant’s room and removed his paperwork and then brought that paperwork to court and attempted to use it in the prosecution of her case.

6. A landlord will be liable for interference with quiet enjoyment if she causes or authorizes acts which result in substantial injury to the tenant in the peaceful enjoyment of the demised premises. Monzaro v. McCann, 401 Mass. 880, 91 N.E.2d 769 (1988); Winchester v. Obrien, 266 Mass. 33, 37 (1929). The covenant of quiet enjoyment protects the “tenant’s right to freedom from serious interference with his tenancy.” Simon v. Solomon, 385 Mass 91, 102 (1982). The court finds that the landlord illegally entered the tenant’s room without the tenant’s permission and removed his personal items without his permission. For the foregoing reasons, the court finds that such acts seriously interfered with the tenancy and hereby awards the tenant

 

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statutory damages equaling three months’ rent for his claim of breach of quiet enjoyment, totaling ($1,250 X 3) $3,750.

7. Conclusion and Order: Based on the foregoing, judgment shall enter in favor of the tenant for possession and damages in the amount of $2,200 (this represents an award to the tenant of $3,750 minus the outstanding rent of $1,550). At the election of the tenant, this sum may be applied towards future rent, at the rate of $1,250 per month. There shall be no court costs assessed against either party at this time.

 

So entered this ____ day of July, 2009.

 

 

 

 

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End Of Decision

 

HOUSING COURT

DOMUS, INC., Plaintiff, v. JENNIFER GOLDMAN, Defendant

 

Western Division

 

 

Docket # No. 09-SP-760

 

Parties: DOMUS, INC., Plaintiff, v. JENNIFER GOLDMAN, Defendant

 

Judge: /s/Robert Fields

Associate Justice

 

Date: November 5, 2009

 

ORDER

After hearing on October 29, 2009 the plaintiffs (landlord’s) motion for relief from the court’s order staying issuance of the execution, at which both parties appeared, the following order is to enter:

1. The court has stayed the issuance of the execution in this case to accommodate the tenant’s physical and mental disabilities and allow for her to secure the assistance she requires to enable her to maintain her apartment in a manner which does not violate the terms of her lease and which does not endanger her own health and safety and that of her neighbors.

 

2. The landlord has met its burden of proof that such forbearance on the issuance of the execution for possession has become unreasonable and, therefore, should be lifted.

 

3. Specifically, the tenant has failed to work cooperatively with the Tenancy Preservation Program (T.P.P.) to such a degree that T.P.P. has discontinued its services.

 

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4. The tenant has also failed to maintain her apartment in a safe and sanitary manner and has allowed conditions in her apartment to worsen with time instead of improve.

 

5. The tenant has also failed to diligently secure any services which might help her maintain her apartment in a safe and sanitary fashion.

 

6. The court, therefore, finds and rules that the accommodation established in its May 13, 2009 order now imposes an undue hardship or burden on the landlord and the stay on the issuance of the execution is hereby lifted.

 

7. An execution for possession only shall issue against the tenant forthwith.

 

So entered this 5th day of November, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

HAROLD WASHINGTON, Plaintiff, v. CHRISTINA MONTANA, Defendants.

 

Western Division

 

 

Docket # No. 09-SP-3722

 

Parties: HAROLD WASHINGTON, Plaintiff, v. CHRISTINA MONTANA, Defendants.

 

Judge: /s/Robert G. Fields

Associate Justice

 

Date: October 4, 2009

 

FINDINGS, RULINGS AND ORDER

The above-captioned matter came before the court for trial on October 22, 2009, after which the following findings of facts and rulings of law and order for entry of judgment are to enter:

1. Background: The plaintiff, Harold Washington (landlord), owns a condominium located at 5 Prew Avenue, Unit 3C in Holyoke, Massachusetts (the premises), which he rents to the defendant, Christina Montana (tenant). The parties began the tenancy four years ago with the latest lease commencing on August 4, 2008 at a rental rate of $575 per month.

2. The Landlord’s Claim for Possession: The landlord has established the prima facie elements of his claim for possession and for outstanding rent. Specifically, by agreement of the parties as articulated in the Pretrial Stipulation, the landlord gave a termination notice to the tenant for non-payment of rent on July 27, 2009, and then had them served properly with a

 

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summons and complaint. The parties also agree that $1,150 is outstanding through October 2009. What remains for the court’s determination, therefore, are the tenant’s defenses and counterclaims.

3. Tenants’ defenses and counterclaims: The tenant alleges breach of the warranty of habitability, interference with quiet enjoyment, and failure to make reasonable accommodations to her disability; to wit, allowing her to have a companion dog prescribed by her physician.

4. Warranty of Habitability: The tenant testified about several conditions of disrepair including: windows that do not stay in an open position, a broken towel rack, and a missing window screen. The landlord admitted during the trial that since the screen was present in the window at the commencement of the tenancy, it was not his responsibility to replace it. The landlord also admitted that the kitchen window never stayed in an open position since he bought the subject premises. He also admitted that he inspected the living room window during the third week of June, 2009, and said he would get to repairing it but as of the date of the trial had not done so.[1] The court finds that these conditions constituted 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. These conditions at the premises constitutes 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

 

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[1] The court finds that the towel rack was broken by the tenant

and she is responsible for its repair or replacement.

 

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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).

5. The court finds that the fair rental value of the premises was reduced by 2%, on average, for the entire tenancy (4 years). The tenant’ damages for the landlord’s breach of the warranty of habitability are therefore $552 (representing 2% of the contract rent of $575 X 48 months.

6. Breach of the Covenant of Quiet Enjoyment: The tenant alleges that the landlord interfered with her covenant of quiet enjoyment by coming to the premises without giving advance notice and by standing on a nearby hill and looking at the apartment on one occasion. The court finds in favor of the landlord on this claim and awards no damages to the tenant for breach of the covenant of quiet enjoyment.

7. Reasonable Accommodation: The tenant testified that she suffers from a chronic pulmonary disease and from post-traumatic stress syndrome. The tenant provided a note from her treating physician that indicates that her health would benefit from owning a companion animal, to wit a dog. The Fair Housing Act, 42 U.S.C. s.3601 (2006), and M.G.L. c.151B (2000) prohibit discrimination in housing based on handicap. The term “handicap” is defined as “(1) a physical or mental impairment which substantially limits one or more of [a] person’s major life activities, (2) a record of having such an impairment, or (3) being regarded as having such an impairment.” 42 U.S.C. s.3602(h); M.G.L. c. 151B, s.l. Discrimination prohibited by both

 

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statutes includes the “refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a handicapped] person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. s.3604(f)(3)(B); M.G.L. c. 151B, s.4(7A)(2). A “reasonable accommodation” is one which would not impose an undue hardship or burden on the entity making the accommodation. Andover Housing Authority v. Izrah and Shkolnik, 443 Mass. 300, 307 (2005), citing Peabody Props., Inc. v. Sherman, 418 Mass. 503, 608 (1994). “The mandate for reasonable, but not onerous, accommodations strikes ‘a balance between the statutory rights of the handicapped…and the legitimate interests of federal grantees in preserving the integrity of their programs.” Andover Housing Authority, 443 Mass. at 307, quoting City Wide Assocs. v. Penfield, 409 Mass. 140, 142 (1991).

8. The tenant has satisfied her burden of proof that she is handicapped in accordance with the statutes noted above. The landlord is required at a minimum to engage in a discourse with the tenant relative to her request that she be able to own a dog in her home. Thus, if the tenant maintains her tenancy by way of making the required payments noted in the conclusion of this order below, and

judgment enters accordingly on her behalf, the parties must engage in a discourse about the tenant’s request for an accommodation in the landlord’s “no pet” rule.

9. Order for Entry of Judgment: 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 $809.46. This represents $1,150 (landlords’ rent claim) – $552 (tenant’s damages) plus court costs of $181.46. If the tenant makes this deposit with the court, 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,

 

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judgment is to enter for the landlords for possession and $628 plus $181.46 in court costs against the defendant, at the expiration of the statutory ten day period

 

So entered this 4th day of October, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

WILLIAM GORMAN, Plaintiff, v. ROBERT BRUSO, Defendant

 

 

WESTERN DIVISION

 

 

Docket # No. 09-SC-206

 

Parties: WILLIAM GORMAN, Plaintiff, v. ROBERT BRUSO, Defendant

 

Judge: /s/ Robert Fields,

Associate Justice

 

Date: October 2009

 

ORDER

After hearing on October 28, 2009 on appeal from a small claims decision issued by a clerk magistrate, at which both parties appeared, pro se, the following order and entry of judgment shall enter:

1. Background: The plaintiff is the former landlord (hereinafter “landlord”) of the defendant (hereinafter “tenant”) from a tenancy located at 247 Ellen Street in East Longmeadow, Massachusetts (hereinafter “premises”). The tenancy ended in April, 2009. The landlords claim that the tenant caused physical damage to the premises. The tenant filed an appeal claiming a procedural issue, that this matter had been adjudicated by an earlier case between the parties.

2. Procedural Issue: The tenant point out that the landlord’s damages claim was adjudicated by a clerk magistrate in 09-SC-105 on June 11, 2009. In the decision, the clerk who heard the matter ruled on behalf of the landlord relative to the tenant’s various claims and also

 

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found that the landlord failed to provide sufficient proof of any

damage to the premises. That decision was appealed and a trial was conducted, de novo, by a judge. At the appeal trial, on August 7, 2009, the tenant requested that the court not address the landlord’s damages claim at that time and solely address the tenant’s claims against the landlord and allow the issue of tenant damages be determined in another small claims matter pending at that time. The judge honored that request and made it clear in the decision that the landlord’s claims regarding tenant caused damages would be severed and adjudicated in the then pending small claims action and that this was by request of the tenant. For the tenant to now argue that the landlord’s claim of tenant caused damages is res judicata is disingenuous and incorrect. Therefore, the landlord’s claim for damages shall be fully heard and ruled on herein.

3. Landlord’s claim that the tenant caused physical damage to the premises: After consideration of the evidence provided during the trial, including photographs, invoices and testimony by both landlords and their daughter the court rules that the landlord met his burden of proof that the tenant caused physical damage to the premises and that the cost incurred to repair these damages totaled $1,907.50.

4. Accordingly, the landlord shall be awarded $1,940.50 in monetary damages plus court costs of $40.

5. Conclusion and Order: Judgment shall enter on behalf of the plaintiff in the amount of $1,907.50 plus $40 court costs. The defendant, Robert Bruso, has until thirty days from entry of this judgment to pay the plaintiff $1,947.50. The clerk’s office shall schedule a payment hearing for a date after the thirty day period expires.

 

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So entered this ___ day of October, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

RENALD J.MOREAU et al, Plaintiffs, v. ALBERT and LORI CANFORA, Defendants.

 

 

WESTER DIVISION

 

 

Docket # No. 09-SP-2596

 

Parties: RENALD J.MOREAU et al, Plaintiffs, v. ALBERT and LORI CANFORA, Defendants.

 

Judge: /s/ Robert G. Fields,

Associate Justice

 

Date: October 27, 2009

 

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned summary process (eviction) case came before the court for trial on August 12, 2009, after which the following findings of fact and rulings of law and order of judgment are to enter:

1. Background: The plaintiffs, Renald J. Moreau and Andre J. Moreau, Co-Administrators of the Estate of Anais Moreau (landlords), owns a two family property located at 51 Adam Street in Pittsfield, Massachusetts, where they rent Apt. 2 (the premises) to the defendants, Albert and Lori Canfora (tenants). The tenants began their tenancy on July 1, 2008 at a rental rate of $650 per month.

2. The Landlords’ Claim for Possession: The landlord has established the prima facie elements of their case for rent and for possession. Specifically, as agreed in the Pretrial Stipulation signed by the parties, the landlords had the tenants served with a notice to quit and a

 

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summons and complaint and that the outstanding rent through August, 2009 is $3,800. The outcome of the case turns, therefore, on the tenants’ defenses and counterclaims which, in essence, allege the existence of conditions of disrepair and the landlord’s failure to address them after being aware of same, a claim that the landlords provided insufficient heat to the premises, and a claim that the landlords failed to comply with the laws pertaining to security deposits. The court will address each of these claims in turn.

3. Conditions of Disrepair; Breach of Warranty of Habitability: The tenants provided credible evidence that the roof occasionally leaks into the kitchen and that the porch lighting is controlled by the other rental unit and has often been off without recourse of the tenant. These conditions existed from the commencement of the tenancy. The landlords admitted to the

leaking roof and did not rebut the lack of outside lighting. These conditions constitute violations of the minimum standards of fitness for human habitation as set forth in Article II of the State Sanitary Code, 105 C.M.R. 410.00 et seq. These conditions at the premises constitute a defense based upon breach of the implied 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).

 

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4. The court finds that the fair rental value of the premises was reduced by 5%, on average, as a result of these conditions of disrepair over the entire tenancy (thirteen months). The tenants’ damages for the landlord’s breach of the warranty of habitability are therefore $650 (contract rent) x 5% _ $32.50 X 13 months = $422.50.

5. Interference with Quiet Enjoyment: The tenants allege that the landlords have interfered with their quiet enjoyment of the premises, in violation of G.L. c. 186, s. 14 by setting the thermostat at 65 degrees for the premises. The landlords admitted that they did in fact set the thermostat in this manner. At this temperature, the premises were insufficiently heated pursuant to the State Sanitary Code. The landlords are liable for breach of the covenant of quiet enjoyment if the natural and probable consequence

of their acts causes a serious interference with the tenancy or substantially impairs the character and value of the premises. G.L. c. 186, s. 14; Simon v. Solomon, 385 Mass. 91, 102, 431 N.E.2d 556, 565 (1982). Although a showing of malicious intent in not required, “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).

6. I find and rule that the landlords were “at least negligent,” and breached the covenant of quiet enjoyment in violation of G.L. c. 186, s. 14, by setting the thermostat to 65 degrees on a permanent bases during the heating season. As such, the tenants are awarded statutory damages equal to three months’ rent, totaling $1,950.

7. Order for Entry of Judgment: For the above reasons, and pursuant to the requirements of G.L. c. 239, section 8A, the tenants may, within ten days of the date of this order, deposit with the Clerk of this court the sum of $1,640.20. This represent $3,800 (landlords’ rent claim) – $2,372.50 (tenant’s damages) plus court costs of $212.70. If the tenants make this deposit with the court, the sum deposited is forthwith to be released to the landlords and

 

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judgment for possession is to enter for the tenant. It the tenants fail to make the deposit required by this order, judgment is to enter for the landlords for possession and $1,427.50 plus $212.70 in court costs against both named defendants, at the expiration of the statutory ten day period

 

So entered this 27th day of October, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

HOLYOKE FIRE DEPARMENT, Plaintiff v. 380R DWIGHT STREET, LLC, et al, Defendants

 

 

WESTERN DIVISION

 

 

Docket # NO. 09-CV-1555

 

Parties: HOLYOKE FIRE DEPARMENT, Plaintiff v. 380R DWIGHT STREET, LLC, et al, Defendants

 

Judge: /s/ Robert G. Fields,

Associate Justice

 

Date: October 26, 2009

 

ORDER

After hearing on October 23, 2009, for which the plaintiff Holyoke Fire Department (“Holyoke”), the defendant 380 Dwight Street, LLC (“the LLC”), the defendant Nikolas Makryllos (“Makryllos”), the defendants and crossclaim/third party plaintiffs Mary Serreze “Serreze”) and John Coster (“Coster”), and several tenants appeared, the following Order is to enter:

1. Chapter 34 Review: The LLC shall cause to be signed a contract with a licensed contractor for purposes of the Chapter 34 Review (“the Review”) no later than 20 days from the date of this order. The Review shall be completed within 30 days of this order, unless otherwise agreed upon by the parties or by leave of court.

2. The LLC shall forthwith hire a licensed sprinkler technician to

inspect the sprinklers and fire suppression system. The LLC shall thereafter provide a copy of the report to the City, as well as to the court, and make any necessary repairs.

3. The curfew of the subject property currently in place shall remain in full effect, until

 

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further order of the court.

4. Documents: Octavia Mackey-Anderson and Tom Laurino are hereby ordered to preserve any documents related to leasing of apartments and the condition of the premises. Laurino is further ordered to forthwith undertake efforts to locate the original leases and provide a copy to the parties, as well as to the court.

5. Preliminary Injunction and Attachment. The motion of Serreze and Coster to require the LLC provide alternative housing is allowed. The LLC shall forthwith place the moving parties in a hotel with kitchen facilities, or in the alternative, place the parties in a hotel without kitchen facilities and provide a meal allowance of $60 per day. Serreze and Coster shall make diligent efforts to relocate to permanent housing. The ex-parte real estate attachment granted on October 21, 2009 shall remain in place.

6. Hearing. Further review on this matter shall occur on Monday, November 16, 2009 at 2 p.m. at the Housing Court-Western Division located at 15 Gothic Street, Northampton, MA.

 

So entered this 26th day of October, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

ADAM GLINIAK, Plaintiff, v. AMANDA GAUTHIER, Defendant

 

 

WESTERN DIVISION

 

 

Docket # No. 09-SP-2238

 

Parties: ADAM GLINIAK, Plaintiff, v. AMANDA GAUTHIER, Defendant

 

Judge: /s/ Robert Fields,

Associate Justice

 

Date: October 1, 2009

 

ORDER OF DISMISSAL

This matter came before the court for trial on August 18, 2009, at which both parties appeared. As a preliminary matter, the defendant (tenant) motioned the court to dismiss this action based on the equivocal nature of the notice to quit. For the reasons articulated herein, the court agrees and dismisses this summary process action.

1. Discussion: On April 30, 2009, the plaintiff (landlord) had the tenant served[1] with a rental period notice to vacate as follows:

 

You are hereby notified to vacate and deliver up at the end of the next month of your tenancy, beginning after this notice, the premises now held by you as the tenant of Adam Gliniak, 123 Middle Road, Southampton, Massachusetts.

 

 

You must continue to pay your rent for use and occupancy until you leave. Any such payment shall not cancel or affect this notice.

 

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[1] Service was by constable by leaving it at the last and usual place of abode.

 

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The date of the notice, however, incorrectly stated August 30, 2009 (instead, presumably, April 30, 2009). Because there is no way to determine the date of the termination other than with reference to the August 30, 2009 date, the notice did not terminate the tenancy until October 1, 2009 and the matter must be dismissed as either being equivocal or premature. Tenants are entitled under state law to unequivocal notices from their landlords. See, McGuire v. Haddad, 325 Mass. 590 (1950). The requirement of an unequivocal notice to quit is consistent with the long established principle that equity abhors the forfeiture of a lease. See, Johnson v. Madigan, 361 Mass. 454 (1972); Judkins v. Charette, 255 Mass. 76 (1926).

2. The landlord argues that the tenant was not mislead by the typographical error of the date and could ascertain from the date of service that the tenancy was terminated on June 1, 2009. The standard applied in these cases, however, is not whether in fact the tenant was mislead by the notice but whether the notice is sufficiently clear, accurate and not subject to being reasonably misunderstood. See, e.g., Springfield II Investors v. Anita Marchena, Hampden Housing Court Docket No. 89-SP-1342 (Abrashkin, J); See also, Oakes v. Monroe, 62 Mass. (8 Cush.) 282 (1851); U-Dryvit Auto Rental Co. v. Shaw, 319 Mass. 684, 67 N.E.2d 225 (1946); Connors v. Wick, 317 Mass. 628, 59 N.E.2d 277 (1945).

3. The landlord also argues that there was no need for a notice to quit based on the assertion that there exists no tenancy between the parties. The court, however, finds that there was a tenancy between these parties and, therefore, a proper notice to quit was required.

4. Conclusion and Order for Entry of Dismissal: Based on the foregoing, the motion to dismiss is allowed and this matter is hereby dismissed.

 

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So entered this 1st day of October 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

PAUL PLANTE, Plaintiff, v. LIZBETH DELEON, Defendant

 

 

WESTERN DIVISION

 

 

Docket # No. 09-SP-2695

 

Parties: PAUL PLANTE, Plaintiff, v. LIZBETH DELEON, Defendant

 

Judge: /s/ Robert Fields,

Associate Justice

 

Date: September 30, 2009

 

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned matter came before the court for trial on August 6, 2009, after which the following findings of facts, rulings of law and judgment are to enter:

1. Background: The plaintiff, Paul Plante (landlord), owns a 6-unit building at 298 Oakland Street in. Springfield, Massachusetts, where he rents apartment #2L (the premises) to the defendant, Lizbeth DeLeon (tenant). The parties began the tenancy on October 1, 2009 at a rental rate of $750 per month.

2. The Landlord’s Claim for Possession: The landlord has established the prima facie elements of his claim for possession and for outstanding rent. Specifically, by agreement of the parties as articulated in the Pretrial Stipulation, the landlord gave a termination notice to the tenant for non-payment of rent on July 3, 2009, and then had her served properly with a summons and complaint. The rent outstanding rent or use and occupancy through August, 2009, totals

 

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$2,300. What remains for the court’s determination, therefore, are the tenant’s defenses and counterclaims.

3. Tenant’s defenses and counterclaims: The tenant alleges that there have been conditions of disrepair since the inception of the tenancy and that she has told the landlord but he has failed to remedy them.

4. Warranty of Habitability: The tenant testified about several conditions of disrepair, some of which are listed in the city’s housing enforcement citations dated May 8, 2009 and July 20, 2009. Additionally, the tenant testified about mold in her bathroom and the landlord testified that he attempted to remove the mold but was unsuccessful. The court finds that these conditions constituted 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. These 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 (up to Code), and the value in their actual condition. Haddad v. Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991).

5. The court finds that the fair rental value of the premises was reduced by 20%, on average, for the entire tenancy (October, 2008 through August, 2009). The tenant’s damages for

 

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the landlord’s breach of the warranty of habitability are therefore

$1,050 (representing 20% of the contract rent of $750 X 10 months).

6. Conclusion and Order for Entry of Judgment: For the above reasons, a judgment shall enter on behalf of the landlord in the amount of $1,250 plus court costs (representing the rent/use/occupancy of $2,300 minus the tenant’s award of damages of $1,050). Pursuant to G.L. c.239, s.s.9 and 10, and based on the disability of the tenant, issuance of the execution shall be stayed to allow the tenant to pay the judgment amount vis-a-vis a payment plan in addition to paying her current rent each month. As such, this matter shall be scheduled by the Clerk’s Office for a review hearing to determine a payment plan.

 

So entered this 30th day of September, 2009.

 

 

 

cc: Clerk’s Office (for scheduling of review hearing)

 

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End Of Decision

 

HOUSING COURT

JOHN DeRAFFELE, Plaintiff, v. LAKISHA LOVE and EBONY WILLIAMS, Defendants

 

 

WESTERN DIVISION

 

 

Docket # No. 09-SP-2209

 

Parties: JOHN DeRAFFELE, Plaintiff, v. LAKISHA LOVE and EBONY WILLIAMS, Defendants

 

Judge: /s/ Robert Fields,

Associate Justice

 

Date: September 25, 2009

 

FINDINGS, RULINGS AND ORDER

The above-captioned matter came before the court for trial on July 23, 2009, after which the following findings of facts and rulings of law are to enter:

1. Background: The plaintiff, John DeRaffele (landlord), owns a 4-unit building at 27 Loring Street in Springfield, Massachusetts, where he rented apartment #2L (the premises) to the defendants, Lakisha Love and Ebony Williams (tenants). The parties began the tenancy on April 1, 2009 at a rental rate of $650 per month.

2. The Landlord’s Claim for Possession: The landlord has established the prima facie elements of his claim for possession and for outstanding rent. Specifically, by agreement of the parties as articulated in the Pretrial Stipulation, the landlord gave a termination notice to the tenants for non-payment of rent on June 3, 2009, and then had them served properly with a summons and complaint. The parties also agree that $1,300 is outstanding through July, 2009,

 

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and that the tenancy began on April 1, 2009. What remains for the court’s determination, therefore, are the tenants’ defenses and counterclaims.

3. Tenants’ defenses and counterclaims: The tenants allege breach of the warranty of habitability, interference with quiet enjoyment, retaliation, violations of the security deposit laws, discrimination, and violations of the consumer protection laws.

 

4. Warranty of Habitability: The tenants testified about several conditions of disrepair, some of which are listed in the city’s housing enforcement citation dated June 30, 2009. Such conditions that the court finds to have existed throughout the tenancy included broken ceiling plaster, broken rear door casing, screen door, and cabinet door, ripped screens, broken electrical cover plates. The court finds that these conditions constituted 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. These 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 (up to Code), and the value in their actual condition. Haddad v. Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991).

5. The court finds that the fair rental value of the premises was reduced by 10%, on average, for the entire tenancy (April through July, 2009). The tenants’ damages for the

 

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landlord’s breach of the warranty of habitability are therefore $260 (representing 10% of the contract rent of $650 X 4 months).

6. Consumer Protection Act, G.L. c.93A: The landlord is engaged in business or commerce within the Commonwealth. The Massachusetts Consumer Protection Statute, G.L. c.93A, prohibits a landlord from engaging in unfair or deceptive acts or practices in the rental housing business. It is an unfair or deceptive trade or practice, and violation of Chapter 93A, for an owner to fail, after notice of a State Sanitary Code violation, to remedy a violation which may endanger or materially impair the health, safety, or well-being of the occupant and/or fail to maintain the unit in a condition fit for human habitation. 940 CMR 3.17 (1)(b)1 and 2.

7. The tenants are 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 knowing and willful. “The `willful or knowing’ requirements of s.9(3) goes not to the 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. As stated above, the court finds that the conditions of disrepair that existed on the premises and formed the bases for the award of damages for breach of the warranty of habitability pre-existed the tenancy and, therefore, the landlord was, or should have been fully, aware of their existence. As such, the tenants’

warranty of habitability damages are hereby doubled in accordance with G.L. c.93A, totaling $520. Wolfberg v. Hunter, 385 Mass. 390, 432 N.E.2d 467 (1982).

 

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9. An additional violation of G.L. c.93A: The tenants also claimed that the lease contained an illegal late fee term. The landlord agreed during trial that he only recently became aware that a lease provision which requires a late fee to accrue on the eleventh day of the month if the rent has not been paid is illegal under the laws of the Commonwealth. This illegal clause is a violation G.L. c.93A. With no evidence that the tenant actually paid a late fee, nominal damages of $25 shall be awarded the tenants on this claim.

10. The tenants’ other claims: The court finds in favor of the landlord on the other claims asserted by the tenants in their Answer.

11. Attorneys Fees: The tenants, having prevailed on their claims under G.L. c.93A, are entitled to an award of attorney’s fees and costs.

12. Order: For the above reasons, and pursuant to the requirements of G.L. c. 239, s.8A, the tenants may, within ten days of the date of this order, deposit with the Clerk of this court the sum of $755 (this represents the award of rent of $1,300 minus the award to the tenants of $545) plus court costs of $209.76. If they do so, the sum deposited is forthwith to be released to the landlord, and judgment for possession is to enter for the tenants. It the tenants fail to make the deposit required by this order, judgment is to enter for the plaintiff/landlord for possession and $755 plus court costs of $209.76 at the expiration of the statutory ten day period.

13. The tenants shall file and serve their petition for attorneys’ fees and costs within seven days of the entry date of this order. The landlord shall file and serve its opposition, if any, within seven days after service of the tenants’ petition. Unless the court determines that a hearing is necessary, the court will rule on the parties’ written submissions, and final judgment will enter thereafter.

 

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So entered this 25th day of September, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

JOHN DeRAFFELE, Plaintiff, v. PAM WILLIAMS, Defendant

 

 

WESTERN DIVISION

 

 

Docket # No. 09-SP-2210

 

Parties: JOHN DeRAFFELE, Plaintiff, v. PAM WILLIAMS, Defendant

 

Judge: /s/ Robert Fields,

Associate Justice

 

Date: September 2009

 

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned matter came before the court for trial on July 30, 2009, after which the following findings of facts and rulings of law are to enter:

1. Background: The plaintiff, John DeRaffele (landlord), owns a 4-unit building at 27 Loring Street in Springfield, Massachusetts, where he rented apartment #1R (the premises) to the defendant, Pam Williams (tenant). The parties began the tenancy on February 1, 2008 at a rental rate of $650 per month.

2. The Landlord’s Claim for Possession: The landlord has established the prima facie elements of his claim for possession and for outstanding rent. Specifically, by agreement of the parties as articulated in the Pretrial Stipulation, the landlord gave a termination notice to the tenant for non-payment of rent on June 3, 2009, and then had her served properly with a summons and complaint. The parties also agree that $1,300 is outstanding through July, 2009,

 

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and that the tenancy began on February 1, 2009. What remains for the court’s determination, therefore, are the tenant’s defenses and counterclaims.

3. Tenant’s defenses and counterclaims: The tenant alleges breach of the warranty of habitability, interference with quiet enjoyment, retaliation, and violations of the consumer protection laws.

4. Warranty of Habitability: The tenant testified about several conditions of disrepair, some of which are listed in the city’s housing enforcement citation dated June 18, 2009. Other than for one condition of disrepair, the deficient window screens, the tenant failed to meet her burden of proof that the conditions of disrepair diminished the value of the subject premises. The court finds, however, that the lack of well-fitting window screens constituted 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. This condition at the premises constitutes 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 (up to Code), and the value in their actual condition. Haddad v. Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991).

5. The court finds that the fair rental value of the premises was reduced by 20%, on

 

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average, for the four months of warmer weather (April through July, 2009) as a result of the improperly fitting window screens (four months). The tenant’s damages for the landlord’s breach of the warranty of habitability are therefore $520 (representing 20% of the contract rent of $650 X 4 months).

 

6. Consumer Protection Act, G.L. c. 93A: The court finds that the landlord is in the business of renting apartments and, in accordance with G.L. c.93A, the court rules that the landlord’s failure to provide proper screens in the subject rental premises (having only provided temporary/partial screens), is a violation of the tenant’s consumer protection rights and hereby doubles the warranty of habitability award of $520, totaling $1,040.

7. The tenant’s other claims: The court finds in favor of the landlord on the other claims asserted by the tenant in her Answer.

8. Conclusion and Order: For the foregoing 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 $260 plus court costs of $166, totaling $426. This represent $1,300 (landlord’s rent claim) – $1,040 (tenant’s damages). If the tenant 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 $1,300 plus court costs at the expiration of the statutory ten day period.

 

So entered this ___ day of September, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

XIUYU MA, Plaintiff, v. WILLIAM GRAY, Defendant

 

 

WESTERN DIVISION

 

 

Docket # No. 09-SP-2335

 

Parties: XIUYU MA, Plaintiff, v. WILLIAM GRAY, Defendant

 

Judge: /s/Robert Fields,

Associate Justice

 

Date: August 2009

 

ORDER

After hearing on August 11, 2009, on plaintiffs motion for issuance of the execution and the defendant’s motion to waive the imposition of court costs, at which both parties appeared, the following order is to enter:

1. Background: After a July 16, 2009 trial in this matter, the court issued a decision on July 21, 2009. In accordance with G.L. c.239, s.8A the tenant had until July 31, 2009 to pay $625 in damages and $181.76 in court costs to the clerk’s office. On July 31, 2009, the tenant appeared at the clerk’s office wishing to deposit $625 but was told that he must also pay the court costs. The tenant was also told he could motion the court to waive the court costs due to his indigency. The tenant then filed a motion to waive the imposition of court costs and the landlord filed a motion for issuance of the execution based on the fact that the tenant did not deposit the proper funds with the clerk’s office.

 

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2. Discussion: The tenant submitted to the court an affidavit of indigency that appears regular and complete on its face and indicates

that the tenant is indigent as defined in G.L. c.261, s.A-G. The court does not take issue with the tenant’s indigency status but rules the use of the G.L. c.261, s.A-G is not applicable in this situation. Though the tenant’s motion seeks the waiver of “the imposition of court costs” based on his indigency, it is in actuality a request that the court substitute the court costs ($181.76) and pay them out to the landlord.

3. The decision of the court in this summary process matter provided the tenant essentially a cure right in accordance with G.L. c.239, s.8A and that after an award of damages to the tenant is calculated there are still damages owing to the landlord, the tenant has a time in which to pay the damages and pay the court costs already incurred by the landlord. It is a statute designed to make the landlord whole (except the damages portion awarded the tenant). Thus, the tenant’s motion seeks to invoke the protections afforded by G.L. c.261, s.A-G for a purpose for which it is not designed; namely, to make the prevailing party whole by having the state reimburse the landlord his filing and service fees.

4. The purpose of G.L. c.261, s.A-G is to provide access to the judicial system (e.g. waiver of filing and service of process fees) and access to those costs which are reasonably necessary to assure the applicant as effective a prosecution, defense or appeal as he would have if he were financially able to pay.” (G.L. c.261, s.27C). The statute is not designed, however, to accomplished what is required under G.L. c.239, s.8A to make the landlord whole.

5. Conclusion and Order: Based on the foregoing reasons, the court hereby denies the tenant’s request that the obligation to pay the court costs of $181.76 be waived and hereby extends the date by which the tenant must deposit $625 in rent damages plus $181.76 in court

 

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costs to September 8, 2009. If the tenant makes said payment to the clerk’s office by that date, judgment for possession shall enter for the tenant. If not, judgment for possession plus $625 plus $181.76 in court costs shall enter for the landlord. Accordingly, and consistent with this ruling, the landlord’s motion is hereby denied without prejudice.

 

So ordered this ___ day of August, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

XIUYU MA, Plaintiff, v. WILLIAM GRAY, Defendant

 

 

WESTERN DIVISION

 

 

Docket # No. 09-SP-2335

 

Parties: XIUYU MA, Plaintiff, v. WILLIAM GRAY, Defendant

 

Judge: /s/Robert Fields,

Associate Justice

 

Date: July 2009

 

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned summary process (eviction) case came before the court for trial on July 16, 2009, after which the following findings of facts and rulings of law are to enter:

1. Background: The plaintiff, Xiuyu Ma (landlord), owns a two-family property located at 60-62 W. Alvord Street in Springfield, Massachusetts, which she rents the top floor apartment to the defendant, William Gray (tenant) since April 1, 2009 at a rental rate of $1,250 per month.

2. The Landlord’s Claim for Possession: The parties entered into a Pretrial Stipulation and agreed to all facts other than how much rent is outstanding. The landlord’s position is that the lease began on March 15, 2009 and the obligation to pay rent began at that time. The tenant agrees that though the lease does anticipate a beginning date of March 15, 2009, and that he had every intention on taking occupancy on that date, the apartment was not ready for occupancy until April 1, 2009 when he did take occupancy.

3. The landlord’s own testimony supports the tenant’s position that the unit was painted

 

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and the carpets cleaned in late March, 2009. The court finds that the apartment was not ready for occupancy until April 1, 2009. As such, the amount of rent unpaid through July, 2009 is $4,375.

4. Tenant’s claims: What remains, therefore, are the tenant’s claims and defenses which allege three things: That his property was stolen at times during which the landlord was in control of the unit prior to his taking occupancy or at a time when shall allowed others access; the cost of renting alternative housing while the unit was not available; and damages due to a breach of the tenant’s quiet enjoyment when he was confronted by agents of the landlords who entered the second floor of the premises without his permission. Each of these claims shall be addressed herein.

5. Stolen Property: The tenant claims that on two occasions the landlord or her agent stole his personal property. On March 14, 2009, the tenant claims that his camera and laptop cord were stolen when the landlord and her workers were in the apartment. On April 8, 2009, the tenant claims that his laptop computer was stolen when the landlord and her agents were present. The tenant did not see anyone take his belongings but asserts that they all disappeared at times when the landlord or agents in her control were on the premises. The court finds that the tenant did not meet his burden of proof that the landlord is responsible in any way for items which may have been stolen from his home. As such, there shall be no award of damages on this claim.

6. Cost of Alternate Accommodations: The tenant was under an agreement in another court matter relative to his former residence in which he must vacate that unit by March 15, 2009 or otherwise forfeit funds which would only be paid him upon his vacating by that date. The tenant claims he had to spend $850 for the two weeks of rent at another location while the subject premises were not ready. The tenant could not identify the address where he allegedly paid $425

 

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per week from March 16 through 31, 2009, nor could he produce a receipt. The court finds that the tenant did not meet his burden of

proof that he expended such sums, or any sum, for alternate accommodations during that two week period. As such, there shall be no award of damages on this claim.

7. Breach of the Covenant of Quiet Enjoyment: On April 8, 2009 at approximately 8:00 a.m. the landlord appeared at the premises, accompanied by three gentlemen. This group was comprised of her husband, Lanny Perron, and two agents, Equality Shabazz and Chris Martinez. The tenant claims that Mr. Perron and Mr. Shabazz entered the second floor of his apartment and accosted him for money he owed. He said that the event was very scary and he had no idea who these two men were at the time of the incident.

8. The landlord testified that she and the three gentlemen were at the premises that morning to replace the locks on the tenant’s front and back doors. She stated that she didn’t think that her husband or Mr. Shabazz went upstairs but she did say that she saw her husband on the stairs leading up to the second floor of the apartment where the tenant’s bedroom is located. There is no reason for the landlord nor her agents to go to the second floor of the apartment. The landlord testified that Mr. Shabazz’ presence was rooted in the fact that he had resided at the same location that the tenant claims to have rented for the second half of March, 2009 (discussed above) and that he indicated to the landlord that he didn’t believe that the tenant had actually resided there during that time. There was also no other reason for Mr. Shabazz to even be present at the premises accept to see the tenant and determine whether he had lived in those other accommodations.

9. A landlord will be liable for interference with quiet enjoyment if she causes or authorizes acts which result in substantial injury to the tenant in the peaceful enjoyment of the

 

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demised premises. Monzaro v. McCann, 401 Mass. 880, 91 N.E.2d 769 (1988); Winchester v. Obrien, 266 Mass. 33, 37 (1929). The covenant of quiet enjoyment protects the “tenant’s right to freedom from serious interference with his tenancy.” Simon v. Solomon, 385 Mass 91, 102 (1982). The court finds that the landlord’s agents, Perron and Shabazz, illegally entered the second floor without the tenant’s permission, failed to identify themselves and confronted the tenant. The landlord either authorized Perron and Shabazz to do so or at least “caused” them to do so when she invited these men to the premises and allowed them to gain entry when she came in to change the locks. For the foregoing reasons, the tenant is awarded damages equaling three months’ rent for his claim of breach of quiet enjoyment, totaling ($1,250 X 3) $3,750.

10. Conclusion and 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 $625 plus court costs. This represent $4,375 (landlord’s rent claim) minus $3,750 (tenant’s damages). If he 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 $625 plus costs at the expiration of the statutory ten day period.

 

 

So entered this ___ day of July, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

CITY OF SPRINGFIELD, CODE ENFORCEMENT DEPARTMENT, Plaintiff v. PEDRO SOTO, et al., Defendants

 

 

WESTERN DIVISION

 

 

Docket # DOCKET NO. 08-CV-1980

 

Parties: CITY OF SPRINGFIELD, CODE ENFORCEMENT DEPARTMENT, Plaintiff v. PEDRO SOTO, et al., Defendants

 

Judge: /s/ Robert G. Fields,

Associate Justice

 

Date: September 2009

 

ORDER AUTHORIZING SALE OF REAL ESTATE AND TO TERMINATE THE RECEIVERSHIP

The above-captioned matter is before the court on defendant’s (mortgage holder’s) motion to allow sale of the subject property and to terminate the receivership. After hearing for which counsel for the plaintiff City of Springfield, the defendant mortgagee IBMA Property Holdings, LLC(“IBMA”), and the Receiver Atlas Property Management, Inc. (“the Receiver”) all appeared and assented to the motions herein, the following Order is to enter with respect to 107 Kensington Street, Springfield, Massachusetts (“subject property”):

1. IBMA’s motions are hereby allowed consistent with terms

established herein;

2. The Housing Court-Western Division has personal and subject matter jurisdiction over this proceeding and the subject property.

3. IBMA is hereby authorized to sell the subject property at a foreclosure sale, subject to the following procedure:

a. To the extent not already completed, IBMA shall prepare a Notice of Sale which shall indicate the following:

 

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1. The street address and legal description of the subject property to be offered for sale by public auction;

2. The name of the titled owner(s) of the subject property;

3. The date, time, and place of the sale; and

4. That the Housing Court-Western Division has granted IBMA authorization to sell the subject property;

b. At the sale, IBMA shall provide each prospective purchaser with the following:

1. A copy of the Notice to Prospective Purchasers attached hereto.

2. A copy of the Receivership Order dated June 23, 2009.

3. A list of all current State Sanitary and Building Code violations at the subject property.

4. The amount of the Receiver’s lien on the subject property as of the date of sale.

c. IBMA shall prepare a Memorandum of Sale.

 

d. IBMA shall execute the Memorandum of Sale with the successful bidder after completion of public auction sale.

e. The sale shall be subject to approval of the court.

f. The sale shall be subject to the receivership and the successful bidder shall be subject to approval by the court under the terms of the Receivership Order dated June 23, 2009.

4. Upon the approval by the court of the sale to a party other than IBMA, the receivership shall be dissolved.

 

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So entered this ___ day of September, 2009.

 

 

 

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[SEE TEXT FOR NOTICE]

 

 

 

End Of Decision

 

HOUSING COURT

BARBARA GRAVES and EDYTHE AMBROZ d/b/a WHITTIER RODGERS PROPERTIES, Plaintiff, v. JEANNETTE McGOUGH, Defendant

 

 

WESTERN DIVISION

 

 

Docket # No. 09-CV-163

 

Parties: BARBARA GRAVES and EDYTHE AMBROZ d/b/a WHITTIER RODGERS PROPERTIES, Plaintiff, v. JEANNETTE McGOUGH, Defendant

 

Judge: /s/ Robert Fields,

Associate Justice

 

Date: September 2009

 

ORDER

This matter came before the court on August 17, 2009 for trial, at which all the parties appeared and the following findings, rulings and order for judgment are to enter:

1. Background: This matter was originally filed as a summary process case, in which the plaintiffs (landlords) were seeking to evict the defendant (tenant) for non-payment of rent. On November 22, 2008, and prior to a trial on the merits, the tenant vacated the premises and this matter was transferred to the regular civil docket.

2. Claims: The landlords are seeking $6,000 in unpaid rent through November, 2008. The tenant does not counterclaim but does dispute the landlords’ accounting and asserts that she only owes $5,653; representing rent through November 22, 2008.

3. Discussion: The parties agree that the rent owed through October, 2008 totals $4,700. This represents $800 from June, 2008, and $3,900 for August, September, and October, 2008

 

 

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rent (at $1,300). The tenant did not dispute, at the hearing, that the last day that her belongings remained on the premises was November 22, 2008. As such, she owes an additional $953, representing $43.33 per day in November, 2008 for use and occupancy. The

discrepancy between the parties’ figures is that the landlords were seeking the rent for all of November, 2008 even though they regained possession as of November 22, 2008. Unlike in the instance where a tenant fails to give proper notice and a landlord seeks the full rental period even though the tenant has vacated before the end of the month, this situation involves a tenancy that was properly terminated and possession regained thereafter. Thus, only a per diem use and occupancy can be recouped. Based on the foregoing, the court rules that $5,653 is owed by the tenant to the landlord for unpaid rent, use and occupancy.

4. Security Deposit: During the trial, it became apparent that the landlords had been given a security deposit by the tenant in the amount of $1,300 at the commencement of the tenancy but had not complied with G.L. c.186, s.15B after the tenant vacated the premises. Specifically, the landlords did not send the tenant an accounting of the deposit and the basis for deducting the deposit for outstanding rent. Even though the landlords did not have a forwarding address for the tenant after she vacated, they were still under an obligation to send the tenant such an accounting and mail it to the subject premises. As such, the landlords forfeit their right to retain the tenant’s security deposit. Therefore, the amount owed by the tenant is reduced by $1,300, which has been retained by the landlords.

5. Conclusion and Order: Based on the foregoing, a judgment shall enter in favor of the plaintiffs in the amount of $5,653 minus $1,300 equaling $4,353 plus court costs of $178.90, totaling $4,531.90.

 

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So entered this ___ day of September, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

CITY OF HOLYOKE, Plaintiff v. BRIAN MURDOCK, et al, Defendants

 

 

WESTERN DIVISION

 

 

Docket # DOCKET NO. 07-CV-2039

 

Parties: CITY OF HOLYOKE, Plaintiff v. BRIAN MURDOCK, et al, Defendants

 

Judge: /s/ Robert G. Fields,

Associate Justice

 

Date: September 2, 2009

 

ORDER AUTHORIZING ENFORCEMENT OF RECEIVER’S PRIORITY LIEN AND AUTHORIZING RECEIVER TO SELL PROPERTIES TO SATISFY HIS PRIORITY LIEN

The above-captioned matter is before the court on the Receiver’s motion to enforce priority lien. After hearing for which counsel for the plaintiff City of Holyoke, the defendant mortgagee One West Bank, FSB, and the Receiver Joseph Francis, Inc. (“the Receiver”), the following Order is to enter with respect to 191 Walnut Street, Holyoke (“subject property”):

1. The Housing Court-Western Division has personal and subject matter jurisdiction over this proceeding and the subject property.

2. The Receiver acknowledges, and the court hereby finds, that

Brian Murdock is indebted to more than one lender (“the lenders”) under various promissory notes (“the notes”) which are secured by valid, enforceable, perfected and non-avoidable first priority mortgages and security interests on the subject property, subject only to any municipal lien and the

Receiver’s priority lien granted pursuant to G.L. c. 111, s.127I.

3. There exists insufficient funds to repair, operate, maintain, or manage the subject property. Accordingly, an immediate needs exists for the Receiver to sell the subject property to raise funds, repair, operate, maintain and/or manage the subject property in

 

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accordance with the court’s Receivership Order dated July 30, 2008.

4. The Receiver is hereby authorized to sell the subject property to satisfy his priority lien, subject to the following procedure:

a. The Receiver shall prepare a Notice of Sale which shall indicate the following:

1. The street address and legal description of the subject property to be offered for sale by public auction;

2. The name of the titled owner(s) of the subject property;

3. The date, time, and place of the sale; and

4. That the Housing Court-Western Division has granted the Receiver authorization to sell the subject property to satisfy the priority lien pursuant to G.L. c. 111, s. 127I.

b. The Receiver shall serve the Notice of Sale on all owners and/or holder(s) of equity of redemption and all other parties having an interest in the subject property, including lenders, mortgagees and lienors, as of thirty (30) days prior to the date of sale by certified, return receipt requested, mail at least fourteen (14) days prior to the date of sale.

c. The Receiver shall engage a duly licensed auctioneer to conduct the public auction. The subject property shall be sold to the highest bidder. The Receiver reserves the right to reject all bids.

d. The Receiver shall arrange for publication of Notice of Sale. The Notice of Sale must be published once a week for three (3) consecutive weeks, the first publication being no later than twenty-one (21) days prior to the sale.

 

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The Receiver shall collect tear sheets of the newspaper advertisements to be filed with the court.

e. At the sale, the Receiver shall provide each prospective purchaser with the following:

1. A copy of the Notice to Prospective Purchasers attached hereto.

 

2. A copy of the Receivership Order dated July 30, 2008.

3. A list of all current State Sanitary and Building Code violations at the subject property.

4. The amount of the Receiver’s lien on the subject property as of the date of sale.

f. The Receiver shall prepare a Memorandum of Sale.

g. The Receiver shall execute the Memorandum of Sale with the successful bidder after completion of public auction sale.

h. The sale shall be subject to approval of the court.

i. The sale shall be subject to the receivership and the successful bidder shall be subject to approval by the court under the terms of the Receivership Order dated July 30, 2008.

5. The Receiver, or any entity that he may be a part of, shall not be prohibited from purchasing the subject property, provided that they are the high bidder at the public auction.

 

So entered this 2nd day of September, 2009.

 

 

 

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[SEE TEXT FOR NOTICE]

 

 

 

End Of Decision

 

HOUSING COURT

PAUL KUTA, Plaintiff, v. MARIE TEDDER, Defendant

 

 

WESTERN DIVISION

 

 

Docket # No. 09-SP-1526

 

Parties: PAUL KUTA, Plaintiff, v. MARIE TEDDER, Defendant

 

Judge: /s/ Robert Fields,

Associate Justice

 

Date: January 2009

 

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned summary process (eviction) case came before the court for trial on August 10, 2009, after which the following findings of facts and rulings of law are to enter:

1. Background: The plaintiff, Paul Kuta (landlord), owns a single family home located at 47 West Street, Easthampton, where he rented a room and use of certain common areas (the premises) to the defendant, Marie Tedder (tenant) beginning on February 6, 2009 at a rental rate of $500 per month.

2. Preliminary Matter; Possession: The parties jointly reported to the court that the tenant vacated the premises on June 3, 2009. The landlord is seeking unpaid rent through May 31, 2009 (waiving use and occupancy for the first three days of June, 2009). The landlord asserts that the tenant owes $250 for half of April, 2009 and $500 for all of May, 2009. The tenant asserts that there is no outstanding rent and, furthermore, she counterclaims with allegations that the landlord violated the security deposit laws and harassed her and her sons during the tenancy.

3. Unpaid Rent: The landlord admitted at the outset of the hearing that he is not a very

 

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good record-keeper but he believes that the tenant has failed to pay $750 for the last 1.5 months of the tenancy. The landlord was accurate only in the sense that he was correct, he is not a good record-keeper and, in fact, failed to meet his burden of how much rent-if any-was outstanding when the tenant vacated the unit on June 3, 2009.

4. Tenant’s Claim: Harassment: The tenant testified that the landlord harassed her and her sons who visited her at the subject premises. The landlord admitted that he did curtail the sons’ ability to park on his driveway and that he voiced his dismay to the tenant with her having her sons spend so much time at the premises. The tenant failed to meet her burden, however, that the landlord’s behavior rose to a level that breached her covenant of quiet enjoyment and no damages shall be awarded her on this claim.

5. Tenant’s Claim: Violation of the Security Deposit Laws: The tenant quickly acquiesced that there was no basis to claim that the landlord ever took a security deposit. She did suggest that the landlord had taken a “last month’s rent” payment from her but ultimately was unable to sustain her burden of proof that she paid a “last month’s rent” at all. As such, the tenant failed to meet her burden of proof on this claim.

6. Conclusion and Order: Based on the foregoing, and the fact that possession is no longer at issue, no judgment shall enter for either party on their claims and the case shall be dismissed. No costs shall be imposed on any party.

 

So entered this ___ day of January, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

MARK HALON, Plaintiff, v. RICHARD BARNETT and JAIME CARTER, Defendants

 

 

WESTERN DIVISION

 

 

Docket # Division No. 09-SP-1214

 

Parties: MARK HALON, Plaintiff, v. RICHARD BARNETT and JAIME CARTER, Defendants

 

Judge: /s/ Robert Fields,

Associate Justice

 

Date: August 2009

 

ORDER SETTING THE APPEAL BOARD

After hearing on August 10, 2009 on the setting of an appeal bond in this summary process matter, at which both parties appeared, the following order is to enter:

1. After a written decision awarded the defendant-tenants with $5,577 in damages and awarded the plaintiff-landlord with $12,150 in damages, and in accordance with G.L. c.239, 8A, when the tenants failed to deposit $6,573 with the court within 10 days of the order, a judgment entered for the landlord for $6,573 plus costs and possession.

2. The tenants filed a timely notice of appeal but did not file a motion to waive the appeal bond.[1]

 

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[1] Even if the tenants had filed a motion to waive the appeal bond, based on the evidence provided during the hearing about the tenants’ income the court would find them not to be indigent and, therefore, without standing to seek a wavier the of the appeal bond. Such is based on the tenant’s testimony of gross income totaling in excess of $52,000 per year between SSI, Child Support, and newly acquired wage income.

 

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3. The plaintiff informed the court during the hearing that the tenants have not paid use and occupancy for the months of July and August, 2009 at $1,150 (the two months since the trial), totaling an additional $2,300.

4. In accordance with G.L. c.239, 8A, the appeal bond shall be $8,873 [this represents the underlying judgment of $6,573 plus $2,300 (intervening use and occupancy)] and use and occupancy payments of $1,150 per month during the pendency of the appeal.

5. If the sum of $8,873 is not paid to the Clerk’s Office within 10 days of the date of this order, an execution shall issue on the judgment dated July 27, 2009, upon written application by the plaintiff (after the 10 day period has run).

 

So entered this ___ day of August, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

ELAM SAFI and BRISHNA SAFI, Plaintiffs v. BOLDUC CONSTRUCTION, INC. and GERALD S. BOLDUC, Defendants

 

 

WESTERN DIVISION

 

 

Docket # No. 07-CV-0743

 

Parties: ELAM SAFI and BRISHNA SAFI, Plaintiffs v. BOLDUC CONSTRUCTION, INC. and GERALD S. BOLDUC, Defendants

 

Judge: /s/ Robert G. Fields

Associate Justice

 

Date: July 2009

 

RULINGS AND ORDER ON PLAINTIFF’S MOTION TO VACATE ARBITRATOR’S AWARD AND DEFENDENT’S MOTION TO AFFIRM ARBITRATOR’S AWARD

This matter is before the court on several motions related to an arbitration award. After hearing on April 16, 2009, for which counsel for both parties appeared, the following Rulings and Order is to enter:

1. BACKGROUND. The underlying case involves the performance of a contract for the construction and sale of residential property by Bolduc Construction, Inc. The plaintiff homeowners Elam and Brishna Safi (“plaintiffs”) filed the instant action alleging breach of contract, breach of warranty, fraud and misrepresentation and violation of G.L. c. 93A. The defendants Bolduc Construction, Inc. and its principle, Gerald Bolduc, (“defendants”) denied the allegations and asserted counterclaims of breach of contract, unjust enrichment, and quantum meruit. Both parties then entered into an arbitration agreement, in which they agreed to submit their claims to binding arbitration.

2. On February 24, 2009, the arbitrator awarded the plaintiffs $1,500 on their breach of warranty claim, and awarded the defendants $35,126 on their claim for quantum meruit damages. Each party was to pay their own costs. Counsel for the plaintiffs represents that he

 

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received the award on February 26, 2009.[1] On or about March 17, 2009, the plaintiffs requested the arbitrator modify his findings; by letter dated March 18, 2009, the arbitrator denied that request. On March 30, 2009, the plaintiffs filed their motion to vacate the award, along with a motion to allow for the late filing of the motion to vacate, or, in the alternative, to find the motion timely filed. On April 7, 2009, the defendants filed their opposition to the motion to vacate, along with a request for legal fees, and additionally filed a motion to affirm the award.

3. DISCUSSION. Timeliness of Motion. The motion to vacate the arbitration award was timely filed. G.L. c. 251, s. 12(b) provides that an application to vacate an arbitration award must be filed “within thirty days after delivery of a copy of the award to the applicant . . .” Counsel for the plaintiffs received the award on February 26, 2009 and filed the motion to vacate on March 30, 2009, the final day of the statutory time period. Mass. R. Civ. P. 6(a).[2] The plaintiffs’ motion to consider the motion to vacate as timely filed is therefore allowed. Because I have ruled that the motion was timely, the defendants’ request for legal fees is hereby denied.

4. Motion to Vacate. The court’s authority to review an arbitration award is limited in scope. School Comm. of Hanover v. Hanover Teachers Ass ‘n, 435 Mass. 736, 740 (2002).

 

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[1] It appears that the Arbitrator served the award to the parties by registered mail on February 25, 2009.

 

 

[2] Mass. R. Civ. P 6(a) provides, in relevant part:

 

In computing any period of time prescribed . . . by any applicable statute . . . the day of the act, event, or default after which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday… .

 

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“[A]bsent fraud, corruption, or certain procedural irregularities … [a court] may vacate an award only if the arbitrator has exceeded his powers. Neither error of fact nor error of law provides grounds for vacating an award.” Sch. Dist. of Beverly v. Geller, 50 Mass. App. Ct. 290, 293 (2000) (citations omitted). Therefore, “even a grossly erroneous decision is binding . ..” City of Everett v. Int. Brotherhood of Police Officers, Locals 633 & 634, 44 Mass. App. Ct. 671, 676 (1998).

5. The plaintiffs argue that many of the findings of the arbitrator are either legally or factually incorrect, and move to vacate the award pursuant to G.L. c. 251, s. 12 (a)(l)-(2).[3] In particular, they argue that the arbitrator misapplied the governing law, and also failed to state a basis or rationale for awarding the defendants $35,126 in quantum meruit damages.[4] The plaintiffs, however, have failed to provide any evidence that the arbitrator patently ignored the law, exceeded his authority, or showed any prejudice which would necessitate the court vacate the award. The parties entered into a binding arbitration agreement, and it is therefore the arbitrator’s interpretation of the law and facts which they must now accept. Under the standard set forth, above, the court simply does not have the authority to reconsider the merits of the arbitrator’s award. The plaintiffs’ motion to vacate the arbitrator’s award is denied.

6. Motion to Affirm. Because the motion to vacate the award has been denied, Massachusetts law requires that the arbitration award be affirmed. G.L. c. 251, s. 12(d).

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[3] G.L. c. 251, s. 12 (a)(1)-(2) provide, in relevant part, that the court shall vacate an arbitration award if:

 

(1) the award was procured by corruption, fraud or other undue means;

(2) there was evident partiality by an arbitrator appointed as a neutral, or corruption in any of the arbitrators, or misconduct prejudicing the rights of any party;

 

[4] It is worth noting that the arbitrator was not required to state any basis for arriving at the quantum meruit damage sum. Trustees of Boston & Maine Corp. v. Massachusetts Bay Transp. Authority, 363 Mass 386 (an arbitrator is not obligated to provide any reason for his decision).

 

 

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7. ORDER For the above reasons, the plaintiffs’ motion to consider the motion to vacate as timely filed is allowed, and their motion to vacate the arbitration award is denied; the defendants’ motion to affirm the arbitration award is allowed, and their request for attorney’s fees is denied. It is hereby ordered that final judgment enter affirming the findings, rulings, and award set forth in the arbitration award dated February 24, 2009.

 

So entered this ___ day of July, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

HOLLY STREET REALTY, INC., Plaintiff, v. STASCIA HICKSON, Defendant

 

 

WESTERN DIVISION

 

 

Docket # No. 07-SP-1226

 

Parties: HOLLY STREET REALTY, INC., Plaintiff, v. STASCIA HICKSON, Defendant

 

Judge: /s/ Robert Fields,

Associate Justice

 

Date: June 2009

 

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGEMENT

The above-captioned summary process (eviction) case came before the court for trial on May 14, 2009, after which the following findings of fact and rulings of law are to enter:

1. Background: The plaintiff, Holly Street Realty, Inc. (landlord) owns a six-unit building located at 97 Holly Street in Indian Orchard, MA, where it rents apartment number 3R (the premises) to the defendant, Stacia Hickson (tenant) since October, 2008. The rent is $575 per month.

2. The Landlord’s Claim for Possession; Receipt of the Notice to Quit: The tenant claims that she never received the notice to quit for non-payment of rent. She states that she didn’t receive one left at her home nor one sent by mail. The tenant testified further that the landlord scratched her name off of her mailbox and that she has had problems receiving her mail. The landlord’s representative, Joseph Ribeiro, states that he had the notice served by sheriff. Though the notice to quit in the court file had no return of service, the landlord produced one at the hearing with a return of service from the constable. The constable’s

 

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return indicates that on “this day” a copy was left at 97 Holly Street and that one was mailed. The return fails to state what date “this day” indicates. It also fails to indicate which apartment was served.

3. The landlord has not met its burden of proof that the notice to quit was received by the tenant. I find the tenant’s testimony credible that did not in fact receive the notice to quit. As such, the landlord’s case for possession is dismissed. The tenant’s claims are hereby severed and transferred to the regular civil docket. Having conducted a full trial on those claims, and the landlord’s claim for rent, the court will issue findings, rulings of law and entry of an order herein.

4. Tenants claim of breach of the covenant of quiet enjoyment: The tenant asserts a claim that her covenant of quiet enjoyment was breached when the hot water heater broke and there was no hot water for five days and the landlord failed to reimburse her for her hotel bills. The landlord is liable for breach of the covenant of quiet

enjoyment if the natural and probable consequence of its act (or failure to act) causes a serious interference with the tenancy or substantially impairs the character and value of the premises. G.L. c. 186, s. 14; Simon v. Solomon, 385 Mass. 91, 102, 431 N.E.2d 556, 565 (1982). Although a showing of malicious intent in not required, “there must be a showing of at least negligent conduct by a landlord.” Al-Ziab v. Mourgis, 424 Mass. 847, 851, 679 N.E.2d 528, 530 (1997) .

5. The landlord testified that the reason for the delay in restoring hot water service was due to the need to order a part from Texas. Even crediting that testimony, another representative of the landlord, Andre Coelho, who was not present at the trial, had informed the tenant that upon her giving him hotel receipts should would be compensated. The court finds the tenant credible when she states that she gave the hotel receipts to Mr. Coelho. I find

 

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that the failure of the landlord to compensate the tenant for the hotel bills incurred by the tenant is a violation of G.L. c. l 86, s.14 which provides that the landlord is liable for actual and consequential damages or three months rent, whichever is greater. The tenant testified that the hotel bill was $82 per night and that she stayed in the hotel for five nights, bringing the total to $410 which is less than three months rent. As such, the tenant is hereby awarded $1,725 (three months rent at $575) for the tenant’s claim of breach of the covenant of quiet enjoyment.

6. Warranty of Habitability; Conditions: The tenant provided credible testimony and supportive photographs that there were various conditions of disrepair at the premises, including leaking toilet, extremely dirty tiles in and adjacent to the kitchen (through no fault of the tenant), non-weather tight windows, leaking kitchen window, insufficient electrical current throughout the apartment, mice infestation, and periodically insufficient heat. All of these conditions constitute violations of the minimum standards of fitness for human habitation as set forth in Article II of the State Sanitary Code, 105 C.M.R. 410.00 et seq. These conditions at the premises constitute a defense based upon breach of the implied 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).

 

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7. I find that the fair rental value of the premises was reduced by 30%, on average, as a result of these conditions of disrepair over the entire tenancy (nine months). The tenant’s damages for the

landlord’s breach of the warranty of habitability are therefore $1,552 (this represents 30% of the $575 contract rent for nine months).

8. Landlord’s claim for rent: The outstanding amount of rent no paid by the tenant is $1,450. This represents $300 from March, 2009 and $575 from each of April and May, 2009. As such, the court hereby awards the landlord $1,450 for his claim for unpaid rent.

9. Conclusion and Order: Based on the foregoing, judgment shall enter for the tenant on her claims against the landlord totaling $1,827.50. This represents the tenant’s claims totaling $3,277.50 minus the landlord’s claim for unpaid rent totaling $1,450. Additionally, the landlord is hereby ordered to remedy all conditions of disrepair in the subject premises including but not limited to those listed in paragraph #6 above. Furthermore, the rent shall be reduced by 30% beginning in July, 2009, until all repairs are completed; thus the rent shall be $402.50 during this time. A review of this matter shall be scheduled for July 28, 2009 at 2:00 p.m. The tenant may, at her discretion, pay her rent by deducting that amount from the judgment awarded herein or may pay her rent separately from this judgment.

 

So entered this ___ day of June, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

NORTH ADAMS BUILDING DEPARTMENT, Plaintiff, v. SCOTT STERN, Defendant

 

Western Division

 

 

Docket # No. 07-CV-1686

 

Parties: NORTH ADAMS BUILDING DEPARTMENT, Plaintiff, v. SCOTT STERN, Defendant

 

Judge: /s/Robert Fields

Associate Justice

 

Date: July, 2009

 

ORDER ON DEFENDANT’S MOTIONS FOR SANCTIONS AND FOR PRODUCTION OF DOCUMENTS

After hearing on May 13, 2009, on the defendant’s motions for sanctions and for production of documents, at which both parties appeared, the following order is to enter:

1. Background: This code enforcement action was commenced on March 8, 2007 by the plaintiff City of North Adams Building Department (North Adams) in the form of a Request for Finding of Probable Case on the court’s criminal docket. North Adams was seeking to enforce its violation notice regarding residential property owned by the defendant Scott Stern (Stern) located at 392-394 West Main Street in North Adams. The underlying violations related to conditions of disrepair at Stern’s vacant two-family house and the debris and litter on the yard surrounding the house. A finding of probable cause was entered and a criminal complaint issued. On September 25, 2007 the court allowed a request from North Adams to transfer the matter to

 

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the civil docket and dispatched a Housing Specialist to inspect the

property. On November 5, 2007 the Housing Specialist inspected the property and issued a view report. As a result of a case management conference with the clerk’s office, a hearing date was scheduled for February 13, 2008. The hearing was continued to February 27, 2008.

2. After the February 27, 2008 hearing, at which both parties appeared, the court issued an Order (Order) requiring Stem to keep the property vacant and secured until contractors can complete required renovations. Additionally, Stem was ordered to maintain the property free of debris. Stem filed a Notice of Appeal of the Order on March 3, 2008 which was docketed by the court. An emergency motion for clarification was filed by Stem on March 26, 2008 and heard with both parties present by the court on that date. The Order was modified as a result of the hearing. On March 28, 2008, Stern filed a Notice of Appeal of the modified Order which was docketed by the court. On April 15, 2009, one year after this matter was adjudicated by the court, Stern served five motions upon North Adams. On April 22, 2009, the court heard and ruled on three of those motions and scheduled the remaining two motions for hearing on May 13, 2009.

3. Discussion: The real crux of the matter before the court is one of procedure. Stem’s motions seek further discovery and sanctions for alleged wrongdoing of the other party. North Adams, in addition to denying any wrongdoing, argues that these motions are not appropriate as this civil action has been adjudicated by the February 27, 2008 trial on the merits and resultant Order and that such Order is on appeal. Stem’s position is that the February 27, 2009 hearing was not a trial on the merits, did not fully adjudicate the issues in this case and that his appeal is interlocutory. Therefore, argues Stern, motions for further discovery and sanctions are wholly appropriate at this stage.

 

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4. Upon review of this case, including listening to the February 27, 2008 hearing, it is clear that the hearing was not a trial on the merits of all the issues in this matter. On several occasions during the hearing the judge stated that it was a hearing on a “request for a preliminary injunction and not a full trial.” The judge further stated that the sole matter on for hearing was the “limited relief that the city is here requesting.” For the foregoing reasons, I have determined that a trial on the merits of all the claims asserted in this case, including Stern’s cross and/or counter claims, has not yet been held.

5. Stern’s Motions: Stem’s motions for sanctions and for further discovery, therefore, are properly before the court and shall be addressed herein. As to the motion for sanctions, I find and rule that Stern has failed to meet his burden of proof that North Adams failed to provide photographs and “purposely defied” a court order on that issue and the court shall not impose any sanctions against North Adams. As to the motion for further discovery, the court shall schedule a Case Management Conference to schedule all matters relating to this case including additional discovery, dispositive motions, and trial. As such, the court shall not compel any further discovery at this time and shall await the creation of a Scheduling Order which shall be produced as a result of the Case Management Conference.

 

6. Conclusion and Order: For the foregoing reasons, Stern’s motions are hereby denied and a Case Management Conference with Judge Fields shall be scheduled for August 12, 2009 at 10:00 a.m. in the Pittsfield Session of the Housing Court.

 

So entered this _____ day of July, 2009.

 

 

 

cc: Peter Montori, First Assistant Clerk Magistrate

 

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[SEE TEXT FOR MOTION]

 

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End Of Decision

 

HOUSING COURT

JULIE E. MELROSE, Plaintiff, v. SANTO & MIRIAM ALERS, JAMIE CHEREWATTI, JAMES BEADLE, EAGLECREST PROPERTY MANAGEMENT, Defendants

 

Western Division

 

 

Docket # No. 09-CV-969

 

Parties: JULIE E. MELROSE, Plaintiff, v. SANTO & MIRIAM ALERS, JAMIE CHEREWATTI, JAMES BEADLE, EAGLECREST PROPERTY MANAGEMENT, Defendants

 

Judge: /s/Robert Fields

Associate Justice

 

Date: July , 2009

 

ORDER

After hearing on July 13, 2009, on the plaintiff’s application for a temporary restraining order, at which all the parties appeared, the following order shall enter:

1. Background: The plaintiff (hereinafter “Melrose”) applied for an apartment owned by the defendants Santo and Miriam Alers (hereinafter “The Alers”) and listed by the defendant property management company (hereinafter “Eagle Crest”) and was denied due to the fact that Melrose has a cat. The subject premises is an apartment in a two-family house. The Alers reside in the other unit and do not allow tenants to have pets. Melrose filed this emergency action claiming that denying her the rental unit was in violation of Melrose’s rights under the state and federal fair housing laws. Specifically, Melrose argues that her cat is not a pet but a companion animal which Melrose needs due to her disabilities and that she is entitled to a reasonable accommodation pursuant to federal and state fair housing laws.

 

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2. Discussion: Fair housing laws provide that it is unlawful to discriminate in the rental of a dwelling unit against a person due to their handicap which includes a refusal to make reasonable accommodations in rules and/or policies when such accommodations may be necessary to afford such person equal opportunity to use and enjoy the dwelling. See, G.L. c.151B s.4 and 42 U.S.C. s.3604 et seq. The term ‘handicap’ is defined as “(1) a physical or mental impairment which substantially limits one or more of such person’s major life activities, (2) a record of having such an impairment, or (3) being

regarded as having such an impairment.’ 42 US.C. s.3602 (h).” Peabody Properties, Inc. v. Sherman, 418 Mass. 603, 605-606 (1994).

3. The accommodation being sought by Melrose is to suspend the no-pet policy and allow Melrose to move in with her cat. Though at first blush this appears to be a reasonable request that would, if accommodated, would enable Melrose to access much needed housing, the Alers’ circumstances are such that requiring such an accommodation to their no-pet policy would be unreasonable. Specifically, Mrs. Alers, who appeared in court in a wheelchair, suffers from multiple sclerosis, diabetes and asthma who is extremely allergic to cats and other animals. She, herself, had to give away all of her animals and has purchased and moved into the two-family house in question with no animals so as to reduce the risk presented by living in proximity to cats and other animals.

4. Conclusion and Order: Based on the foregoing, the court hereby finds that if the defendant property owners were required to suspend their no-pet policy and rent to the plaintiff with her cat it would pose a very serious health risk to Mrs. Alers and, therefore, would constitute an unreasonable accommodation. As such, the plaintiff’s emergency application is

 

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hereby denied. Having ruled only upon the emergency request before the court, and by assent of the parties, the rest of this civil matter is dismissed without prejudice.

 

So entered this ____ day of July, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

YAHAIRA VAZQUEZ, Plaintiff, v. DEBRA FLETCHER and WILLIAMS CAPITAL APARTMENTS, LLC, Defendants.

 

Western Division

 

 

Docket # No. 09-CV-1032

 

Parties: YAHAIRA VAZQUEZ, Plaintiff, v. DEBRA FLETCHER and WILLIAMS CAPITAL APARTMENTS, LLC, Defendants.

 

Judge: /s/Robert Fields

Associate Justice

 

Date: July , 2009

 

ORDER

After hearing on July 20, 2009 on the plaintiff’s application for an emergency order, at which the plaintiff and the defendant, Debra Fletcher appeared, the following order is to issue:

 

1. Williams Capital Apartments, LLC is deemed by the court

to be an indispensable party to this action in accordance with Mass.R.Civ.P. Rule 19, and is hereby added as a party-defendant.

 

2. It is agreed by the parties that the plaintiffs $900, given for an apartment located at 236-238 Dickinson Street in Springfield, shall be returned to her by no later than Friday,

July 24, 2009 at 9:00 a.m. Payment must be made in cash, bank check or money order.

 

3. Additionally, because it is illegal to charge a non-refundable application fee in the manner that was required by the defendants in this matter, the defendants shall

 

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return it ($50) to the plaintiff. See G.L. c.186, s.15B which only allows for requiring payment of first month’s rent, last month’s rent, security deposit and key deposit. (See also, Goran ‘s Investors, Inc. v. Luis Ortiz and Rosa Mercado, Western Division Housing Court No. 04-CV-0318 (Fein, J. 2005); The defendants have returned $45 of that amount at court at the hearing. They shall return the remaining $5 in addition to the $900 payment noted above on July 24, 2009.

 

4. All parties shall appear at a Review scheduled in this matter for Friday, July 24, 2009 at 9:00 a.m.

 

So entered this ____ day of July, 2009.

 

 

 

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End Of Decision

HOUSING COURT

ANTON YUNIKOV, Plaintiff, v. JUAN RODRIGUEZ, Defendant.

 

Western Division

 

 

Docket # No. 09-SP-2302

 

Parties: ANTON YUNIKOV, Plaintiff, v. JUAN RODRIGUEZ, Defendant.

 

Judge: /s/Robert Fields

Associate Justice

 

Date: July 21, 2009

 

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned summary process (eviction) case came before the court for trial on July 16, 2009, after which the following findings of facts and rulings of law are to enter:

1. Background: The plaintiff, Anton Yunikov (landlord), owns a single family property located at 228 Tiffany Street in Springfield, Massachusetts (premises), which he rents to the defendant, Juan Rodriguez (tenant) since December, 2006 at a rental rate of $1,300 per month.

2. The Landlord’s Claim for Possession: The parties have entered into a stipulation agreement which establishes the prima facie elements of the landlord’s case; he has served the tenant with a proper termination notice and summons and has established the amount of unpaid rent through July, 2009, as being $4,800. The outcome of the case turns, therefore, on the tenant’s defense which, in essence, alleges that he has been attempting to purchase the property but the landlord has not been dealing with him in good faith.

3. Tenant’s Claim: The tenant argues that he continuously paid his rent (until the four

 

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months prior to trial) from when he first occupied it in 2006 and that while he was doing so it appears that the landlord failed to pay his mortgage and that the landlord has chosen to enter into a purchase and sale agreement with someone else. As such, the tenant argues, he should be given an opportunity to purchase the house. Regardless of how sympathetic the tenant’s argument may be, it does not form the basis for a claim or a defense to the eviction.

4. Conclusion and Order: For the foregoing reason, a judgment shall enter on behalf of the landlord for possession and for $4,800. This being a no-fault eviction, however, in accordance with G.L. c.239 s.9, issuance of the execution shall be stayed to allow the tenant, who has resided in the subject premises for three years, time to relocate. A hearing to review this stay shall be scheduled for August 18, 2009 at 9:00 a.m. If a closing date on the sale of the property to a person or entity that is not the tenant is scheduled prior to the review date, the landlord may motion the court for a review at an earlier time.

 

So entered this 21st day of July, 2009.

 

 

 

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End Of Decision

 

 

HOUSING COURT

BARBARA McEARCHERN AS TRUSTEE OF THE MIDLRED BUDINCK REVOCABLE TRUST, Plaintiff v. THOMAS BUDNICK, Defendant

 

Western Division

 

 

Docket # No. 08-SP-4550

 

Parties: BARBARA McEARCHERN AS TRUSTEE OF THE MIDLRED BUDINCK REVOCABLE TRUST, Plaintiff v. THOMAS BUDNICK, Defendant

 

Judge: /s/Robert G. Fields

Associate Justice

 

Date: July, 2009

 

RULINGS AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

This summary process action involves a single family home located at 19 Harding Avenue, Ludlow (“subject property” or “premises”), which is owned by a revocable trust. The plaintiff trustee of the trust seeks possession of the subject property, claiming that the defendant occupant has no legal right to occupy the premises. The defendant, and brother of the plaintiff, alleges that he is, in fact, the owner of the subject property pursuant to an amendment to the trust. The matter is now before the court on the parties’ cross-motions for summary judgment. Upon consideration of the parties’ arguments and written submissions, the following Rulings and Order are to enter:

1. UNDISPUTED FACTS: On or about April 1, 1992, Mildred M. Budnick (“the grantor”) created the Mildred M. Budnick Revocable Trust Agreement (“the Trust”). The Trust named the grantor as trustee, and named the grantor’s daughter, Barbara McEachern (“the plaintiff’), as successor trustee. It further provided that following the death of the grantor, the corpus of the trust was to be distributed to various persons, which persons did not include the grantor’s son, the defendant Thomas Budnick (“the defendant”). Specifically,

 

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Article III of the Trust provides that the “Grantor has intentionally made no provisions for her Son, THOMAS P. BUDNICK.”

2. The Trust provides that the grantor may amend the provisions “by an instrument in writing, signed and acknowledged by the grantor and delivered to the Trustee . . .” The grantor subsequently executed two (2) documents to the Trust, both of which were entitled “First Amendment to Mildred M. Budnick Revocable Living Trust Agreement.” Both documents were drafted by counsel for the plaintiff, John Soja.

3. The first document (“the first amendment”) was drafted on or about September 6, 1996. It eliminated the provision excluding the defendant as a beneficiary, and inserted in its place the following:

 

E) notwithstanding the provisions of paragraphs A) to D) hereabove, the trustee shall distribute the real estate at 19 Harding Avenue, Ludlow, Hampden County, Massachusetts to the Grantor’s son, THOMAS P. BUDNICK.

 

The grantor left her attorney’s office with the document. Attorney Soja instructed the grantor that if she wished to make the amendment effective, she needed to return it to him for recording; the grantor never returned with the document.

4. On or about July 7, 2005, the grantor executed several documents, including the second “first” amendment (“the second amendment”) to the trust, as well as a quit claim deed which transferred legal title of the subject property to the trust. The second amendment again eliminated the provision of the trust which excluded the defendant as a beneficiary, and inserted in its place the following:

 

E) notwithstanding the provisions of paragraphs A) to D) hereabove, the trustee shall distribute the real estate at 19 Harding Avenue, Ludlow, Hampden County, Massachusetts to the Grantor’s son, THOMAS P. BUDNICK together with any automobile the grantor may own at her death.

 

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The grantor left the attorney’s office with the second amendment; as with the first amendment, the second amendment was never returned to Attorney Soja nor recorded.

5. At the time that the grantor executed the second amendment, the defendant was residing with her at the subject property. The grantor died on February 27, 2007; pursuant to the terms of the Trust, the plaintiff became trustee. On or about April 28, 2009, the plaintiff served the defendant with a notice to quit. A no-fault summary process complaint was thereafter filed on December 5, 2008.

6. In defense of the claim for possession, the defendant asserts that pursuant to the trust two amendments, the plaintiff was required to convey the subject property to him upon the grantor’s death; thus, the plaintiff does not have a superior right to possession. He requests that the summary process complaint be dismissed, and that the plaintiff be ordered to convey the property to him. The plaintiff asserts that neither the first nor the second amendments are valid, and that the defendant therefore has no legal right to occupy the premises.

7. SUBJECT MATTER JURISDICTION: A serious question of subject

matter jurisdiction exists with respect to the parties’ claims regarding title to the subject property. As I indicated to the parties from the bench, the Housing Court does not have jurisdiction over actions to quiet title. I will therefore request an administrative transfer of the case, and the judge, to the Superior Court.

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, (1997).

 

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

9. DISCUSSION: It is well settled that a trust may only be amended in strict conformity with its terms. Bongaards v. Millen, 440 Mass 10 (2003). In this case, the grantor was required to complete three actions to effectuate a change to the terms of the Trust: 1) execute the amendment in writing; 2) sign and acknowledge the amendment; and 3) deliver the amendment to the trustee. The parties do not dispute that the grantor signed and acknowledged both amendments. They differ, however, on whether delivery was, in fact, completed.

10. For delivery to be effective, there must be a showing of “`relinquishment of control over the instrument by the grantor or promisor with the intent to make it a finality. ‘ Kirschbaum v. Wennett, 60 Mass.App.Ct. 807, 811 (2004) (citations omitted). The difficulty with establishing the relinquishment of control in this case is that the grantor and the trustee were one and the same, and neither the first nor the second amendment ever left the grantor’s hands. It is therefore necessary that there be evidence of “other acts and declarations sufficient to show an intention to treat it as delivered” in order for either amendment to be

 

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valid. Id. Contrary to the contention of the defendant, the mere holding of the documents by the grantor is not enough to show delivery.[1] Were it true that simply executing and acknowledging the amendments was sufficient to make them valid, the drafter of the Trust would not have included the “delivery” requirement.

11. The First Amendment. There is no evidence that the first amendment was ever delivered, and it is therefore invalid. First, there is no dispute that the grantor never returned to Attorney Soj a’s office with the document for recording as he had instructed. While it is true that recording was not required to make the amendment valid, the act of returning the document for recording

would have evidenced the grantor’s intent of treating the amendment as delivered; alternatively, the return of the document to Attorney Soja could have signified delivery to her authorized agent. Without the establishment of any other statements or acts by the grantor beyond executing and acknowledging the document, however, a reasonable fact finder could not conclude that the first amendment had been delivered.

12. Additionally, the second amendment executed by the grantor was styled as a “First Amendment,” and contained nearly identical provisions relative to the defendant and the subject property. Had the grantor intended to treat the first amendment as delivered, she would have had no need to restate the amended terms in a second document.

13. The Second Amendment. A genuine issue of material fact exists with respect to the question of whether the grantor delivered the second amendment. By way of affidavit,

 

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[1] Here, the defendant argues that the intent of the grantor was not relevant, as the terms of the amendments are unambiguous. The issue, however, is not whether the relevant terms of either the amendments or the Trust are unequivocal. Rather, the issue is whether the grantor strictly followed the unequivocal terms of the Trust in amending its terms, so as to make the amendments valid and enforceable. On this point, the grantor’s intent as to whether to treat the amendments as delivered is not only relevant, but it is essential. Kirschbaum v. Wennet, 60 Mass.App.Ct. 807, 810-12 (2004).

 

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Attorney Soja proffers that he was the grantor’s agent, authorized to accept delivery of the second amendment on her behalf Because the grantor failed to return the document to him for recording as instructed, he argues that the delivery requirement was never met.

14. In his answer and affidavit, the defendant directly alleges that the grantor did indeed intend to treat the second amendment as delivered. In particular, he testifies that she showed the document to him upon her return from Attorney Soja’s office, and that she told him several times that the house would be his upon her death.[2] Thus, a legitimate fact dispute has been framed as to whether the grantor intended to treat the second amendment as delivered.

15. ORDER: Based on the foregoing reasons the parties’ cross-motions for summary judgment are denied. The Clerk’s Office is requested to schedule the matter for trial at the earliest possible date.[3]

 

So entered this ____ day of July, 2009.

 

 

 

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[2] The plaintiff’s argument that the defendant’s testimony regarding delivery of the second amendment is inadmissible is without merit. As stated in f.n. 1, supra, testimony on this point is not being offered to prove the meaning of the terms of

either the Trust or the amendments, but it is offered to prove that the grantor followed the Trust terms sufficient to effectuate the amendment.

 

[3] Attorney Soja represented at the hearing that if the matter proceeded to trial, he would likely need to testify on the plaintiff’s behalf. Attorney Soja recognized the conflict of serving as both counsel and witness, and he stated the plaintiff would hire successor counsel prior to trial.

 

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End Of Decision

 

HOUSING COURT

WILLIAM and PATRICIA BOROWIK, Plaintiffs, v. JACQUELINE and CHARLES BETTS, Defendants.

 

Western Division

 

 

Docket # No. 09-SP-1

 

Parties: WILLIAM and PATRICIA BOROWIK, Plaintiffs, v. JACQUELINE and CHARLES BETTS, Defendants.

 

Judge: /s/Robert Fields

Associate Justice

 

Date: June , 2009

 

After hearing on June 2, 2009, on the plaintiffs’ (landlords’) motion for issuance of the execution for possession, at which both the landlord, Mr. Borowik, and his attorney and the tenant, Mrs. Betts, appeared, the following findings, rulings and order are to enter:

1. Background: This summary process matter was commenced by the landlords against the defendants, Jacqueline and Charles Betts, on January 5, 2009. On January 15, 2009, Mr. Betts was defaulted and Mrs. Betts (tenant) appeared and entered into an agreement with the landlord (Agreement). Pursuant to the Agreement, a judgment entered for the landlords for possession, with issuance of the execution to be stayed as long as the tenant made certain payments. Additionally, the tenant agreed to vacate the premises by May 1, 2009 with no extensions allowed. On April 8, 2009, the tenant filed a petition in the United States Bankruptcy Court. On April 27, 2009 the landlords filed a motion for issuance of the execution due to noncompliance by the tenant with the payment terms of the Agreement.

 

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2. Discussion: The tenant argues that she is protected by the automatic stay provisions of the Bankruptcy Code. Title 11 of the United States Code, 11 U.S.C. s.1. (Bankruptcy Code) The landlords argues that the Bankruptcy Code allows them to obtain possession notwithstanding the bankruptcy stay when, as here, they obtained judgment prior to the tenant filing the bankruptcy petition.

3. The Bankruptcy Code’s automatic stay provisions are found at s.362 and stay certain actions to evict a person who has filed a petition with the Bankruptcy Court. These provisions, however, do not stay such proceedings when a lessor is seeking to evict a tenant and has obtained a judgment for possession “before the date of the filing of the bankruptcy petition. ” s.362 (b) (22). In the instant matter, the landlord obtained judgment for possession on January 15, 2009, almost three months prior to the tenant’s filing of her bankruptcy action.

 

4. Based on the foregoing, the motion to issue an execution is allowed inasmuch of the motion seeks possession. The execution shall issue forthwith for possession, only, with no costs or damages. The damages portion of this matter is stayed pending the resolution of the tenant’s bankruptcy proceedings.

 

So entered this ____ day of June, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

JOHN PICCO, Plaintiff, v. ANN CUTLER, Defendant.

 

Western Division

 

 

Docket # No. 09-SP-1628

 

Parties: JOHN PICCO, Plaintiff, v. ANN CUTLER, Defendant.

 

Judge: /s/Robert G. Fields

Associate Justice

 

Date: July , 2009

 

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned summary process (eviction) case came before the court for trial on July 13, 2009, after which the following findings of facts and rulings of law are to enter:

1. Background: The plaintiff, John Picco (landlord), owns a three family property located at 54 West Street in Ware, Massachusetts, where he rents an apartment (the premises) to the defendant, Ann Cutler (tenant) since August, 2008 at a rental rate of $650 per month.

2. The Landlord’s Claim for Possession: The parties have entered into a stipulation agreement which establish the prima facie elements of the landlord’s case; he has served the tenant with a proper termination notice and summons and has established the amount of unpaid rent through July, 2009, as being $3,250. The outcome of the case turns, therefore, on the

 

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tenant’s defenses and counterclaims which, in essence, allege that during the course of the tenancy there have been conditions of disrepair which have not been remedied by the landlord. The court will address these claims below.

3. Conditions: I credit the tenant’s testimony and the finding of the Quabbin Health District that there have been for the duration of the tenancy a lack of sufficient trash barrels, mold inside and outside the premises, missing floor and ceiling tiles, and lack of non-absorbent materials in the bathroom. All of these conditions of disrepair constitute 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. These 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. Patukgnis, 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).

4. I find that the fair rental value of the premises was reduced by 20%, on average, as a result of these conditions of disrepair over the entire tenancy (11.5 months, through the date of trial). The tenant’s damages for the landlord’s breach of the warranty of habitability are therefore the contract rent of $650 X 20% abatement for 11.5 months, totaling: $1,495.

 

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5. Order for Entry of Judgment: For the foregoing 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 $1,755. This represent $3,250 (landlord’s rent claim) – $1,495 (tenant’s damages). 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 snake the deposit required by this order, judgment is to enter for the plaintiff/landlord for possession and $1,755 plus costs at the expiration of the statutory ten day period.

 

So entered this ____ day of July, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

ROGELIO MARQUEZ, Plaintiff, v. JUAN GUERRERO, Defendant

 

Western Division

 

 

Docket # Case No. 09-SP-1658

 

Parties: ROGELIO MARQUEZ, Plaintiff, v. JUAN GUERRERO, Defendant

 

Judge: /s/Robert Fields

Associate Justice

 

Date: June , 2009

 

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned summary process (eviction) case came before the court for trial on May 28, 2009, after which the following findings of fact and rulings of law are to enter:

1. Background: The plaintiff, Rogelio Marquez (landlord) owns a three-family home located at 667 Union Street, West Springfield, MA, in which he has rented the first floor apartment (the premises) to the defendant, Juan Guerrero (tenant) and his family since June 1, 2003. The rent is $700 per month.

2. The Landlord’s Claim for Possession: The parties have stipulated to the prima facie elements of the landlord’s case for possession. Specifically, the landlord terminated the tenancy for no-fault of the tenant, and then had the tenant properly served with a summon and complaint. What remains for the court’s adjudication, therefore, is the tenant’s claims’, and defenses.

 

3. The Tenant’s Defenses and Counterclaims: The tenant raises several counterclaims: breach of quiet enjoyment based on the landlord’s denying him access to the

 

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basement, breach of quiet enjoyment based on cross-metering of the common area electricity on to the tenant’s electric meter, violation of the security deposit laws, and retaliation.

4. Denial of Access to Basement: The tenant asserts that in November, 2008, the landlord unilaterally locked the tenant out of the cellar. The landlord admits to same. The landlord testified that his reasoning was based on a concern that the tenant was tampering with the light fixtures and/or the circuit boxes in the cellar. I find that access to the basement was part of the rental agreement between the parties and that the landlord cannot unilaterally deny the tenant access to the basement. The landlord was very aware that access to the basement was part of the lease terms. That exact issue was the subject of previous court proceedings between the parties in Docket No. 07-SP-3293 which resulted in a court order requiring the landlord to provide access to the basement.

5. The landlord is liable for breach of the covenant of quiet enjoyment if the natural and probable consequence of its act (or failure to act) causes a serious interference with the tenancy or substantially impairs the character and value of the premises. G.L. c. 186, s. 14; Simon v. Solomon, 385 Mass. 91, 102, 431 N.E.2d 556, 565 (1982). Although a showing of malicious intent in not required, “there must be a showing of at least negligent conduct by a landlord.” Al-Ziab v. Mourgis, 424 Mass. 847, 851, 679 N.E.2d 528, 530 (1997) .

6. As noted above, the unilateral denial of access to the basement caused serious interference with the tenancy and that the landlord was at least negligent and, as such, I award the tenant three months rent in accordance with G.L. c.186, s.14 on his claim of breach of the covenant of quiet enjoyment totaling $2,100.

 

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7. Cross-Metering: The tenant asserts that during the months of August, 2008 through November, 2008, the landlord cross-metered the tenant’s electrical service with certain common area lights on the premises in violation of G.L. c.186, s.14. The tenant testified that his electric service bills were increased during this time. The tenant provided several electric bills for that period which indicate a 30% increase during those months compared to earlier months. Additionally, when the tenant brought this issue to the landlord’s attention, the landlord had an electrician make repairs to the electrical boxes at the premises. Thereafter, the cost of electrical service returned to normal levels. The landlord provided a bill for electrical work dated December 5, 2008. He proffered the bill to support his position that the electrician verified that no common area lights were cross-metered to the tenant.

8. I find that the electrician’s bill for service indicates that he had to make changes to the electrical service so as to fix a cross-metering situation. As such, I find that the cross-metering interfered with the tenancy, that the landlord was at least negligent

in allowing such an impairment, and I hereby award the tenant statutory damages of three months rent for this additional and distinct breach of the tenant’s covenant of quiet enjoyment totaling $2,100.

9. Security Deposit Claim: At the commencement of the tenancy in June, 2003, the tenant gave a security deposit in the amount of $650. The landlord thereafter failed to provide the tenant with a receipt in violation of G.L. c.186, s.15B. In January, 2006, the parties agreed to use the security deposit towards rent. The landlord testified at trial that the funds were never a security deposit but, instead, were advance payment of last month’s rent. He also admitted that he would have otherwise used such funds for any damages to the apartment when, and if, the tenant were to vacate. I find that the funds were in fact a security deposit

 

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and that the landlord’s failure to provide a proper receipt and accounting of the deposit violate G.L. c.186, s.15B and require their forfeiture. I also find that the tenant assented to their use for rent in January, 2006. Thus, though the deposit was forfeited in accordance with the statute, they have been diverted to rent by agreement of the tenant and no additional damages shall be awarded on this claim.

10. Retaliation: The tenant seeks further damages based on a claim of retaliation. The tenant asserts that the landlord terminated the tenancy because the tenant failed to pay an additional $700 towards a “last month’s rent”. The tenant also claims that the landlord retaliated against him because he complained about the cross-metering discussed above. I find that the tenant failed to meet his burden of proof on this claim and do not award the tenant any damages on his claim of retaliation.

11. Conclusion and Order: Based on the foregoing the court shall enter a judgment for possession for the tenant and award damages in the amount of $4,200 based on two distinct breaches of quiet enjoyment (at $2,100).

 

So entered this ____ day of June, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

SUSAN FERRON, Plaintiff, v. WALTER HARRIS, Defendant.

 

Western Division

 

 

Docket # Case No. 09-SP-1546

 

Parties: SUSAN FERRON, Plaintiff, v. WALTER HARRIS, Defendant.

 

Judge: /s/Robert Fields

Associate Justice

 

Date: June 30, 2009

 

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned summary process (eviction) case came before the court for trial on June 8, 2009, after which the following findings of fact and rulings of law are to enter:

1. Background: The plaintiff, Susan Ferron (landlord) owns a two-family home located at 8 Willow Street in Florence, MA, where she rents a basement apartment (the premises) to the defendant, Walter Harris (tenant) since September 1, 2008. The rent is $450 per month.

2. The Landlord’s Claim for Possession; Insufficiency of the Notice to Quit: As part of the tenant’s Answer, the tenant made an oral motion to dismiss the landlord’s claim for possession due to non-receipt of the notice to quit and that the notice, even if received, was insufficient under the law.

3. The landlord gave a notice to quit dated March 28, 2009 which purported to terminate the tenancy as of April 30, 2009. The tenant asserts that because the rent day was

 

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the fourth of the month, the notice is insufficient as it terminates the tenancy prior to a full rental period. Furthermore, the summons and complaint was served on May 1, 2009 which is prior to the rent date (May 4, 2009) and thus denied the tenant the statutorily mandated time period.[1]

4. It has long been the law of the Commonwealth that the plaintiff in a summary process action bears the burden of proving receipt by the tenant of a notice to quit sufficient to terminate the tenancy. Connors v. Wick, 317 Mass. 628, 631 (1945). Equally well established is the principle that a tenancy at will may be terminated for reasons other than nonpayment of rent, by notice “equal to the interval between the days of payment or thirty days, whichever is longer.” G.L. c.186, s.12. “This statute has been construed to mean that the notice must fix the time for termination as a day upon which the rent is payable.” U-Dryvit Auto Rental Company, Inc., v. Shaw, 319 Mass 684, 685 (1946).

5. The landlord admitted at the hearing that the tenant paid his rent on the fourth of each month since the tenancy began. Both the tenant and landlord testified that at the commencement of the tenancy, the tenant explained to the landlord that he receives his government benefits check by the third of each month so he would not be able to pay his rent until the fourth of each month.[2] The landlord, by use of this notice and the subsequent serving

 

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[1] In accordance with the Uniform Summary Process Rules, the landlord was given opportunity to have this matter, including hearing on dismissal based on an insufficient notice to quit, continued for one week as the tenant filed an answer on the day of trial.

 

[2] The landlord attempted to put into evidence a written lease which has the rent day being the first of each month. The tenant did not sign the lease and testified that he had never seen the lease before the trial. Though the month-to-month written agreement was not admitted into evidence, the court points out that even were there such a written agreement with the first of the month as the rent date, the parties were unified in their understanding and actions that the rent was paid on the fourth of each month.

 

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of a summons, has failed to meet her burden of proof that she terminated the tenancy with a proper notice and, as such, the landlord’s case for possession is dismissed. Because the case is dismissed based on the foregoing reasons, the court need not reach the question of whether the tenant received the notice to quit.

6. Conclusion and Order: Based on the foregoing, the case is hereby dismissed. The tenant’s counterclaims asserted in his answer shall be dismissed without prejudice.

 

So entered this 30th day of June, 2009.

 

 

 

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[SEE TEXT FOR JUDGMENT OF SUMMARY PROCESS FOR DEFENDANT]

 

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End Of Decision

 

HOUSING COURT

BELCHERTOWN REAL ESTATE CO., Plaintiff v. SHERWOOD and SHARI FARINA, Defendants.

 

Western Division

 

 

Docket # Case No. 09-SP-1546

 

Parties: BELCHERTOWN REAL ESTATE CO., Plaintiff v. SHERWOOD and SHARI FARINA, Defendants.

 

Judge: /s/Robert Fields

Associate Justice

 

Date: June 30, 2009

 

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned summary process (eviction) case came before the court for trial on June 8, 2009, after which the following findings of fact and rulings of law are to enter:

1. Background: The plaintiff, Belchertown Real Estate Co. (landlord) owns a single-family home located at 664 Bay Road in Belchertown, MA, which it rents (the premises) to the defendants, Sherwood and Shari Farina (tenants) since September 1, 2008. The rent is $1,750 per month.

2. The Landlord’s Claim for Possession: The parties have stipulated to most of the prima facie elements of the landlord’s case other than the amount of rent that is claimed as outstanding. Specifically, the landlord claims that the rent is $1,750 per month and that the outstanding rent through June, 2009 totals $12,250 (7 months at $1,750). The tenant claims that the monthly rent is $1,650 per month and totals $11,550 (7 months at $1,650). It is clear

 

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from the lease as well as the testimony of both the tenant and the landlord that the monthly rent is $1,750 and that there was a verbal agreement that $100 of that sum would be put towards a down payment on the house should the defendants wish to buy the property and only if the tenant made all rent payment timely. The tenants didn’t pay all their rent timely and, therefore, the rent will remain at $1,750 per month. As such, the landlord has established the elements of its case for possession and outstanding rent. What remains for the court’s adjudication, therefore, are the tenants’ claims and

defenses.

3. The Tenants’ Defenses and Counterclaims: The tenant raises three counterclaims: breach of quiet enjoyment based on the landlord’s failure to make repairs to the electrical service to a portion of the premises after becoming aware of same; in the alternative, a breach of the warranty of habitability as a result of the same deficient electrical service; and a violation of the security deposit laws.

4. Electrical Service: The tenants state that they went for a period of six weeks with no electrical service to half of the premises and that they notified the landlord and he informed them that it was the tenants’ responsibility to fix the problem themselves. The landlord, through its representative Ernest May, admits that he was made aware about the problem from the tenants but that it was notified by the tenants that they had taken care of the problem. The landlord believes that it was only a week between learning of the problem and when it was remedied. The landlord admitted during the hearing that when the tenants contacted him about the electrical problem he did indicate to the tenants that the electrical service worked fine prior to the tenants moving in and that if there was a problem of this nature, it was probably due to the tenants’ improper use of the electrical service. It is reasonable, therefore,

 

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that the tenants believed that they were going to have to fix the electrical problem with their own funds, especially after contacting the landlord “several times” without the problem being fixed.

5. The landlord is liable for breach of the covenant of quiet enjoyment if the natural and probable consequence of its act (or failure to act) causes a serious interference with the tenancy or substantially impairs the character and value of the premises. G.L. c. 186, s. 14; Simon v. Solomon, 385 Mass. 91, 102, 431 N.E.2d 556, 565 (1982). Although a showing of malicious intent in not required, “there must be a showing of at least negligent conduct by a landlord.” Al-Ziab v. Mourgis, 424 Mass. 847, 851, 679 N.E.2d 528, 530 (1997) .

6. The court credits the tenant’s testimony that the problem lasted six weeks and not just for the week the landlord asserted was his recollection. As such, I find the landlord “at least negligent” and award the tenants three months rent in accordance with G.L. c.186, s.15B on their claim of breach of the covenant of quiet enjoyment totaling $5,250.[1]

7. Security Deposit Claim: At the commencement of the tenancy, the landlord required first month’s rent, last month’s rent, a security deposit and the tenant paid all of them totaling $5,250. Thereafter, the landlord did not provide a receipt for the security deposit which indicated the amount and bank account information. The landlord admitted same and said that it does not provide such information or receipt unless asked to do so by the tenant. Such failure to provide the tenants with a receipt with the required back account information

 

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[1] Because the electrical service problem was the basis for the

tenants’ breach of warranty of habitability and the court has already awarded the tenants breach of quiet enjoyment damages on that claim, no claim for breach of warranty of habitability shall be reviewed herein.

 

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is in violation of the security deposit laws found at G.L.c.186, s.15B. As such, the landlord shall forfeit the right to retain the deposit and it must return same, with accrued interest, to the tenants. The tenants are hereby awarded $850 plus accrued interest on this claim.

8. The landlord also admitted that he requires a “pet deposit” in addition to a security deposit in the amount of $250 per pet. Such a requirement is a violation of G.L. c.186, s.15B which allows only for first month’s rent, last month’s rent and a security deposit in an amount no greater than one month’s rent. The tenants failed to meet their burden, however, that any funds were given by them to the landlord towards a pet deposit. As such, no further awarded shall be given to the tenants due to the landlord’s pet deposit policy.

9. Conclusion and Order: For the above reasons, and pursuant to the requirements of G.L. c. 239, section 8A, the tenants may, within ten days of the date of this order, deposit with the Clerk of this court the sum of $5,250 plus costs. This represent $12,250 (landlord’s tent claim) minus $7,000 (tenants’ damages). If they do so, the sum deposited is forthwith to be released to the landlord, and judgment for possession is to enter for the tenants. It the tenants fail to make the deposit required by this order, judgment is to enter for the plaintiff/landlord for possession and $5,250 plus costs at the expiration of the statutory ten day period.

 

So entered this 30th day of June, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

TOWN OF LANESBOROUGH BOARD OF HEALTH, Plaintiff, PETER and MICHELLE BEAUDOIN, Defendants.

 

Western Division

 

 

Docket # No. 08-CV-1487

 

Parties: TOWN OF LANESBOROUGH BOARD OF HEALTH, Plaintiff, PETER and MICHELLE BEAUDOIN, Defendants.

 

Judge: /s/Robert Fields

Associate Justice

 

Date: June 26, 2009

 

FINDINGS, RULINGS AND ORDER ON PLAINTIFF’S APPLICATION FOR

AWARD OF ATTORNEY’S FEES

1. Background: In the court’s May 13, 2009 ruling and order, the defendants were found to be in contempt of an earlier court order and the plaintiff was instructed to file its petition for reasonable attorney’s fees within twenty days. They did so on May 13, 2009. The defendants had ten days from said filing to file any opposition thereto. No opposition was filed.

2. Discussion: Plaintiff’s petition for attorneys fees included a list of hours spent on this matter, from preparation of the contempt complaint through contempt trial and the substance of how that time was used. The petition included a statement of plaintiff’s counsel’s hourly rate as well as an affidavit by said counsel in support of the petition.

3. Though not strictly required, the court should normally use the “lodestar” method to

 

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calculate the amount of a statutory award of attorney’s fees. Under the “lodestar” method, “[a] fair market rate for time reasonably spent in litigating a case is the basic measure of a reasonable attorney’s fee under State law as well as Federal law.” Fontaine v. Ebtec Corp., 415 Mass. 309, 325-26 (1993). However the actual amount of the attorney’s fee is largely discretionary with the trial court judge. Linthicum v. Archambault, 379 Mass. at 388. An evidentiary hearing is not required. Heller v. Silverbranch Const. Corp., 376 Mass. 621, 630-631 (1978). In determining an award of attorney’s fees, the Court must consider “the nature of the case and the issues presented, the time and labor required, the amount of the damages involved, the result obtained, the experience, reputation and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases. Linthicum v. Archambault, supra. at 381. 388-9.

4. I have reviewed the affidavit and time records submitted by plaintiffs attorney, Jason D. Grossfield, who conducted all of the work in preparation of the contempt trial and represented his client at the contempt trial. Attorney Grossfield represented his client with skill and obtained a verdict that provided the protection his client was seeking from the court. I find that the time Attorney Grossfield spent on pre-trial investigation, trial preparation and trial, 23.8.00 hours, provides a reasonable starting point for calculating the statutory attorney’s fee. Based upon Attorney Grossfield’s demonstrated litigation skills and the degree of complexity of the claims he presented at trial, I find that Attorney Grossfield is entitled to compensation at his requested reasonable hourly rate of $135. The defendants did not file any opposition to the petition for attorney’s fees.

5. Conclusion and Order: After considering all of the factors set forth above, I award

 

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the plaintiff reasonable attorney’s fees in the amount of $3,213, as requested in the petition. The award of attorney’s fees is without interest. See, Patry v. Liberty Mobilehome Sales, Inc., 394 Mass. 270, 272 (1985).

 

So entered this 26th day of June, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

VIRGINIA JACOBS, Plaintiff, v. TAMMY BUTLER, Defendants.

 

Western Division

 

 

Docket # No. 09-SP-1748

 

Parties: VIRGINIA JACOBS, Plaintiff, v. TAMMY BUTLER, Defendants.

 

Judge: /s/Robert Fields

Associate Justice

 

Date: June 26, 2009

 

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned matter came before the court for trial on June 22, 2009, at which both parties appeared and offered evidence and testimony, and for which the following findings of facts and rulings of law are to enter:

1. Background: The plaintiff, Virginia Jacobs (landlord), owns a two family house at 15 Cherry Street in Ware, MA, (the premises) where she rents one unit to Tammy Butler (tenant) for $660 per month.

2. The Landlord’s Claim for Rent and Possession: The landlord has established the prima facie elements of her claim for rent and possession. Specifically, by agreement of the parties as articulated in the Pretrial Stipulation, the outstanding rent totals $1,484, the tenant received proper notice terminating her tenancy and was properly served the summons and complaint for this summary process action. What remains for the court’s determination, therefore, are the tenant’s defenses and counterclaims.

 

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3. Tenant’s defenses and counterclaims: The tenant’s defenses and counterclaims include: failure to comply with the requirements of the rental assistance program administered by the Amherst Housing Authority, retaliation, discrimination, warranty of habitability, and breach of quiet enjoyment.

4. Breach of the Covenant of Quiet Enjoyment; Threatening behavior by landlord: The tenant testified that since the service of the notice to quit, the landlord has been “harassing” and “threatening” , insisting that the landlord wants the tenant to move out. The tenant did not describe behavior that was offensive or of such a frequent nature to substantiate a finding that her covenant of quiet enjoyment was breached. As such, there is no basis to award the tenant damages on this claim.

5. Breach of the Covenant of Quiet Enjoyment; Failure to provide adequate locks on the doors: The tenant asserts a claim that her covenant of quiet enjoyment was breached due to the landlord’s failure to install adequate locks on the doors of the apartment. This deficiency was noted by the Quabbin Health District (Health Department) as a result of its inspection of the premises on April 17, 2009. The landlord thereafter took steps on or about May 10, 2009, to remedy those violations by hiring the contractor to effectuate repairs to the windows and doors to bring the property into compliance. On June 15, 2009, however, the Health Department reinspected the premises and determined that those efforts were insufficient to remedy the problem.

6. The landlord is liable for breach of the covenant of quiet enjoyment if the natural and probable consequence of her acts (or failures to act) causes a serious interference with the tenancy or substantially impairs the character and value of the premises. G.L. c. 186, s. 14; Simon

 

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v. Solomon, 385 Mass. 91, 102, 431 N.E.2d 556, 565 (1982). Although a showing of malicious intent in not required, “there must be a showing of at least negligent conduct by a landlord.” Al-Ziab v. Mourgis, 424 Mass. 847, 851, 679 N.E.2d 528, 530 (1997) . In the instant matter, the landlord hired a professional remodeling company to take steps necessary to remedy the insufficient locks noted by the Health Department. Such work was accomplished at a cost to the landlord of over $800. Even though the Health Department determined that the work was insufficient, the evidence of the landlord’s efforts to address the security issues supports a finding that the landlord was not negligent and no damages shall be awarded the tenant on this claim.

7. Warranty of Habitability: The tenant has met her burden of proof that conditions of disrepair existed on the premises from the commencement of the tenancy. These included the inadequate locks noted above and the non-level toilet noted in the Health Department reports, both of which constitute 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. These 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 (up to Code), and the value in their actual condition. Haddad v. Gonzalez, 410 Mass. 855, 576 N.E.2d 658 (1991).

 

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8. I find that the fair rental value of the premises was reduced by 10% as a result of these conditions of disrepair over the entire tenancy (eight months). The tenant’s damages for the landlord’s breach of the warranty of habitability are therefore $660 (contract rent) x 10% ($66) X 8 months = $528.

9. The Remaining Claims: The tenant failed to either provide any evidence, or provided insufficient evidence, on her claims of retaliation, failure to comply with the requirements of the rental subsidy program, and discrimination and the court finds in favor of the landlord on such claims.

10. Order for Entry of Judgment: 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 $956. This represent $1,484 (landlord’s rent claim) minus $528 (tenant’s damages). 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 $956 plus costs at the expiration of the statutory ten day period.

 

 

So entered this 26th day of June, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

COLLINS OWUSU, Plaintiff, v. LEVITICA DUNCAN, Defendant.

 

Western Division

 

 

Docket # No. 09-SP-1681

 

Parties: COLLINS OWUSU, Plaintiff, v. LEVITICA DUNCAN, Defendant.

 

Judge: /s/Robert Fields

Associate Justice

 

Date: June 26, 2009

 

ORDER

After hearing on May 28, 2009 for trial, at which both parties were present, the following findings, rulings and order are to enter:

1. Background: This summary process action was filed by the plaintiff (landlord) against the defendant (tenant) seeking possession of the tenant’s apartment which is located in the same two-family structure in which the landlord resides at 526-528 Grayson Drive in Springfield, MA. The case was commenced after the landlord attempted to terminate the tenancy based on a notice which gave the tenant “30 days notice to vacate.” The tenant filed an answer with counterclaims and a defense that the landlord failed to serve the tenant with a proper termination notice.

2. Discussion: The notice to quit served by the landlord to the tenant is dated April 4, 2009 and purports to terminate the tenancy at will on “30 days notice” “effective today”. At the hearing, it was established that the rent day was the first day of each month. It has long been the law of the Commonwealth that the landlord in a summary process action must prove receipt by

 

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the tenant of a notice to quit sufficient to terminate the tenancy. Connors v. Wick, 317 Mass. 628 (1945). Equally well established is the principle that a tenancy at will may be terminated for reasons other than nonpayment of rent by notice “equal to the interval between the days of payment or thirty days, whichever is longer.” G.L. c. 186, s.12. “This statute has been construed to mean that the notice must fix the time for termination as a day upon which the rent is payable.” U-Dryvit Auto Rental Company, Inc. v. Shaw, 319 Mass. 684, 685 (1946). In the instant matter, the landlord gave a notice that did not fix the time for termination as a day upon which rent is payable, terminating the tenancy on May 4, 2009.

3. ORDER: Based upon the foregoing, the tenant’s motion to dismiss the case due to insufficient notice is hereby allowed. Judgment shall enter in favor of the tenant for possession.

 

So entered this 26th day of June, 2009.

 

 

 

cc: Peter Montori, First Assistant Clerk Magistrate

 

 

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End Of Decision

 

HOUSING COURT

PABLO CASTILLO, Plaintiff, v. ARLENE FLORES, Defendant

 

Western Division

 

 

Docket # Case No. 07-SP-1590

 

Parties: PABLO CASTILLO, Plaintiff, v. ARLENE FLORES, Defendant

 

Judge: /s/Robert Fields

Associate Justice

 

Date: July 2, 2009

 

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned summary process (eviction) case came before the court for trial on May 28, 2009, after which the following findings of fact and rulings of law are to enter:

1. Background: The plaintiff, Pablo Castillo (landlord) owns a two-family building located at 28 Clarendon Street, 2″d floor, Springfield, MA, where he rents a second floor apartment (the premises) to the defendant, Arlene Flores (tenant) since November, 2008. The rent is $700 per month.

2. Preliminary Matter: In addition to the summary process matter between the parties, the tenant filed a small claims matter (09-SC-100) seeking to have the landlord make repairs to her home. The court hereby consolidates the small claims matter into the summary process case and incorporates the tenant’s claims herein.

3. The Landlord’s Claim for Possession: The landlord has established the prima facie elements of his case. Specifically, the parties stipulate that the landlord served a

 

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termination notice for non-payment of rent on April 3, 2009 and properly served a summons and complaint. The parties stipulate further that the amount of outstanding rent is $1,750 through May, 2009. The outcome of the case turns, therefore, on the tenant’s defenses and counterclaims which allege the existence of conditions of disrepair, many of which have existed since the inception of the tenancy, and all of which have not been addressed by the landlord after being aware of them. The court will address each of these claims in turn

4. Tenant’s claim of breach of the covenant of quiet enjoyment: The tenant asserts a claim that her covenant of quiet enjoyment was breached when the landlord failed to make the repairs necessary to ensure a functioning heating system. The system is deficient in two regards. First, the boiler required throughout the entire heating system to be manually replenished with water and that this obligation fell upon the tenant. In the coldest weather, the tenant was required to refill the water in the boiler on an hourly basis. Secondly, the radiators were missing in one of the kid’s bedrooms and has been in that state since the inception of the tenancy.

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

landlord.” Al-Ziab v. Mourgis, 424 Mass. 847, 851, 679 N.E.2d 528, 530 (1997) . Such a showing has been clearly established by the tenant in this matter. The landlord failed to make repairs to the boiler and, even after receiving a notice of violations from the city code

 

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enforcement inspector, the landlord failed to make the necessary repairs to the radiator. The landlord’s representative at the trial, Property Manager Lorenzio Reynoso, stated that the landlord told him that he does not have to fix the radiator because it is no longer the heating season. At the time of the notice of violations there was six weeks left in the heating system. Furthermore, the court finds that the radiator was non-functioning since the inception of the tenancy. As such, the tenant is hereby awarded $2,100 (three months rent at $700) for the tenant’s claim of breach of the covenant of quiet enjoyment.

6. Warranty of Habitability; Conditions: The tenant provided credible testimony and supportive photographs and a notice of violations from the city code enforcement officer, that there were various conditions of disrepair at the premises, including extensive roach infestation and more than two dozen conditions of disrepair noted by the city. All of these conditions constitute violations of the minimum standards of fitness for human habitation as set forth in Article II of the State Sanitary Code, 105 C.M.R. 410.00 et seq. These conditions at the premises constitute a defense based upon breach of the implied 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).

 

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7. I find that the fair rental value of the premises was reduced by 30%, on average, as a result of these conditions of disrepair over the entire tenancy (seven months). The tenant’s damages for the landlord’s breach of the warranty of habitability are therefore $1,470 (this represents 30% of the $700 contract rent for seven months).

8. Conclusion and Order: Based on the foregoing, judgment shall enter for the tenant for possession and for money damages on her claims against the landlord totaling $1,820. This represents the tenant’s claims totaling $3,570 minus the landlord’s claim for unpaid rent totaling $1,750. Additionally, the landlord is hereby ordered to remedy all conditions of disrepair in the subject premises including those listed herein as well as those listed by the city code enforcement office. Furthermore, the rent shall be reduced by 30%

beginning in June, 2009, until all repairs are completed; thus the rent shall be $490 during this time. A review of this matter shall be scheduled for July 28, 2009 at 2:00 p.m. The landlord, Pablo Castillo, is hereby ordered to appear in person for this review hearing. The tenant may, at her discretion, pay her rent by deducting that amount from the judgment awarded herein or may pay her rent separately from this judgment.

9. Furthermore, the tenant testified that both the trash removal and the water utility were at risk of being curtailed for non-payment by the landlord. Thus, the landlord is hereby ordered to take the steps necessary to avoid such termination of these services.

 

So entered this 2nd day of July 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

CLINTON ASSOCIATES, Plaintiff, v. BETH HENNIHAN and DAVID RYAN, Defendants

 

Western Division

 

 

Docket # Case No. 09-SP-1638

 

Parties: CLINTON ASSOCIATES, Plaintiff, v. BETH HENNIHAN and DAVID RYAN, Defendants

 

Judge: /s/Robert Fields

Associate Justice

 

Date: July 2, 2009

 

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned summary process (eviction) case came before the court for trial on May 28, 2009, after which the following findings of fact and rulings of law and order for entry of judgment are to enter:

1. Background: The plaintiff, Clinton Associates (landlord) owns a forty-two unit building located at 238 Maple Street in Agawam, MA, in which has rented Apartment A4 (the premises) to the defendants, Beth Hennihan and David Ryan (tenants) since June 1, 2008. The rent is $800 per month.

2. The Landlord’s Claim for Possession: The parties have stipulated to the prima facie elements of the landlord’s case for possession and for the outstanding rent is $5,000 for rent through May, 2009. What remains for the court’s adjudication, therefore, are the tenants’ claims and defenses.

 

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3. The Tenants’ Defenses and Counterclaims: The tenants assert counterclaims arising out of conditions of disrepair on the premises including recurrent leaks into the bathroom as well as mold in the same bathroom.

4. There was a leak into the tenants’ bathroom which stemmed from the bathroom located in the apartment directly above the tenants. This leak first occurred in June, 2008 and according to the tenant, went uncorrected until April, 2009. The landlord’s position is that the leak in June, 2008 was corrected by July, 2008 and that there was no leak again until February, 2009. At that time, the landlord renovated the upstairs bathroom and made repairs to the

ceiling and crown molding in the tenants’ bathroom. The landlord’s position is that by mid-April, 2009, the leaked had been fully addressed. At some point during this time, the tenants stayed away from their apartment for fear that there was mold in the ceiling at that it was making their newborn baby sick.

5. The landlord is liable for breach of the covenant of quiet enjoyment if the natural and probable consequence of its act (or failure to act) causes a serious interference with the tenancy or substantially impairs the character and value of the premises. G.L. c. 186, s. 14; Simon v. Solomon, 385 Mass. 91, 102, 431 N.E.2d 556, 565 (1982). Although a showing of malicious intent in not required, “there must be a showing of at least negligent conduct by a landlord.” Al-Ziab v. Mourgis, 424 Mass. 847, 851, 679 N.E.2d 528, 530 (1997) .

6. The court credits the tenants’ testimony that the leak continued from June, 2008 through mid-April, 2009 until it was ultimately repaired by the landlord. The tenants did not prove to the courts satisfaction, however, that there was mold in the ceiling. Nevertheless, I find the landlord “at least negligent” for its failure to fully remedy the leak in a timely manner

 

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and award the tenants three months rent in accordance with G.L. c.186, s.15B on their claim of breach of the covenant of quiet enjoyment totaling $2,400.

7. Conclusion and Order: For the foregoing reasons, and pursuant to the requirements of G.L. c. 239, section 8A, the tenants may, within ten days of the date of this order, deposit with the Clerk of this court the sum of $2,600 plus costs. This represent $5,000 (landlord’s rent claim through May, 2009) minus $2,400 (tenants’ damages). If they do so, the sum deposited is forthwith to be released to the landlord, and judgment for possession is to enter for the tenants. It the tenants fail to make the deposit required by this order, judgment is to enter for the plaintiff/landlord for possession and $2,600 plus costs at the expiration of the statutory ten day period.

 

So entered this 2nd day of July 2009.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

NATARIA ENGLISH, Plaintiff, v. CARMEN LOPEZ, Defendant

 

Western Division

 

 

Docket # No. 09-CV-566 (Consolidated w/) (09-SC-1) (09-SC-39)

 

Parties: NATARIA ENGLISH, Plaintiff, v. CARMEN LOPEZ, Defendant

 

Judge: /s/Robert Fields

Associate Justice

 

Date: July 1, 2009

 

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned civil matter came before the court for trial on June 1, 2009, after which the following findings of fact and rulings of law are to enter:

1. Background: This case involves a former landlord and tenant relationship in which the former landlord, plaintiff Nataria English (landlord), is seeking compensation from her former tenant, defendant Carmen Lopez (tenant), for various damages to the apartment located at 23 Lucretia Avenue in Chicopee, MA (premises). The landlord is also seeking the return of, or compensation for, a diningroom set of furniture she claims that she loaned to the tenant. The tenancy existed from March, 2005 until August 31, 2008. By way of counterclaim, the tenant is seeking the return of her security deposit. The landlord, having filed two separate small claims matters against the tenant, the court consolidated them into one civil action vis-a-vis a Case Management Conference and scheduled the matter for trial.

 

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2. Landlord’s claim that tenant failed to return a diningroom set of furniture: The landlord is seeking the return of, or compensation for, a diningroom set that she claims she loaned to the tenant when the tenant first moved into the unit in March, 2005. The tenant claims that she never was loaned or given the diningroom set. She claims that she never had the diningroom set or any of its parts (chairs/table) in her home. The tenant says that on various occasions over the years when she paid her rent and was inside the landlord’s apartment, she saw the diningroom set in the landlord’s diningroom. I find the tenant very credible and believe that there is some deep confusion on the landlord’s part. I find that the landlord never loaned or gave the diningroom set to the tenant at any time. As such, I find for the tenant on this claim and award no damages to the landlord.

3. Landlord’s claims for damages:. The landlord is also seeking compensation for damages she claims were caused by the tenant during the tenancy. The most significant damages are being sought for rotted flooring in the tenant’s apartment allegedly due to a water leak in the tenant’s washing machine. Though the landlord provided evidence that such a condition existed and that mold and wood rot may have been extensive, the landlord has not met her burden of proof that the water damage was caused by the tenant’s washing machine. Further, even if the damage was caused by a leak stemming from the tenant’s apartment, the landlord failed to address it for a period of years during which time the on-going damage was occurring and visible to her from the basement and, therefore, preventable.

4. The landlord is also seeking compensation for damages for conditions of disrepair she claims were caused by the tenant. Such items included damage to the flooring, the windows and the screens. The landlord provided photographs during the hearing and it became clear that the

 

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photographs were of both the rental units at the subject premises. The landlord admitted that she was renovating both the tenant’s former unit and the other rental unit in the building. At times during the hearing the landlord showed pictures of damages and/or repairs, from the unit not formerly occupied by the tenant, claiming those damages were caused by the tenant. The presentation was confusing and misleading and, at times, completely erroneous. I find that the landlord failed to meet her burden of proof that the tenant

caused any damage to any unit at the premises. As such, I find for the tenant on these claim and award no damages to the landlord.

5. Tenant’s claim for return of her security deposit: The tenant gave the landlord a security deposit in the amount of $850 when she first moved into the premises in March, 2005. Because the landlord has withheld the return of the security deposit based on the same damages alleged and analyzed above, the court hereby orders the landlord to return the security deposit with interest to the tenant. Thus, I award the tenant $850 plus interest on her security deposit claim.

6. Conclusion and Order: A judgment for the tenant, Carmen Lopez, shall enter in the amount of $850 plus accrued interest.

 

So entered this 1st day of July 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

TOMMYE JAMES Plaintiff, v. APRIL SUTTON, Defendant.

 

Western Division

 

 

Docket # No. 09-SP-1234

 

Parties: TOMMYE JAMES Plaintiff, v. APRIL SUTTON, Defendant.

 

Judge: /s/Robert Fields

Associate Justice

 

Date: June , 2009

 

 

After hearing on June 4, 2009 for trial, at which both parties were present, the following findings, rulings and order are to enter:

1. Background: This summary process action was filed by the plaintiff (landlord) against the defendant (tenant) seeking possession of the tenant’s apartment which is located in the same two-family structure in which the landlord resides at 69 Dawes Street in Springfield, MA. The case was commenced after the landlord attempted to terminate the tenancy based on what the landlord calls a “30 day notice to quit.” The tenant filed an answer with counterclaims and a defense that the landlord failed to serve the tenant with a proper termination notice.

2. Discussion: The notice to quit served by the landlord to the tenant is dated November 25, 2008 and purports to terminate the tenancy at will on “30 days notice” on December 26, 2008. At the hearing, it was established that the rent day was the first day of each month. It has long been the law of the Commonwealth that the landlord in a summary process action must prove receipt by the tenant of a notice to quit sufficient to terminate the tenancy. Connors v.

 

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Wick, 317 Mass. 628 (1945). Equally well established is the principle that a tenancy at will may be terminated for reasons other than nonpayment of rent by notice “equal to the interval between the days of payment or thirty days, whichever is longer.” G.L. c. 186, s.12. “This statute has been construed to mean that the notice must fix the time for termination as a day upon which the rent is payable.”

U-DryvitAuto Rental Company, Inc. v. Shaw, 319 Mass. 684, 685 (1946). In the instant matter, the landlord gave a notice that did not fix the time for termination as a day upon which rent is payable, terminating the tenancy on December 26, 2008.

3. ORDER: Based upon the foregoing, the tenant’s motion to dismiss the case due to insufficient notice is hereby allowed. Judgment shall enter in favor of the tenant for possession and the tenant’s counterclaims are transferred to the civil docket. The Clerk’s Office is requested to schedule the civil matter for a case management conference.

 

So entered this ____ day of June, 2009.

 

 

 

cc: Peter Montori, First Assistant Clerk Magistrate

 

 

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End Of Decision

HOUSING COURT

BOSTON ROAD MOBILE HOME PARK TENANTS ASSOCIATION, INC., Plaintiff, v. JAMES RUSSELL, Defendant.

 

Western Division

 

 

Docket # No. 08-SP-1198

 

Parties: BOSTON ROAD MOBILE HOME PARK TENANTS ASSOCIATION, INC., Plaintiff, v. JAMES RUSSELL, Defendant.

 

Judge: /s/Robert Fields

Associate Justice

 

Date: June , 2009

 

ORDER

After hearing on June 2, 2009, on the plaintiff’s (landlord’s) motion to extend use of the execution, at which the plaintiff appeared but at which the defendant (tenant) failed to appear, the following order is to enter:

1. Background: This summary process matter was commenced by the landlord on April 14, 2008 for non-payment of lot fee rent. After the tenant failed to appear on the trial date on April 24, 2008, a default judgment entered for money damages and possession of the subject premises. On November 7, 2008, the landlord was heard on its motion for issuance of the execution, for which the defendant failed to appear, and execution issued for possession, for lot fee rent, costs and interest. The next event was the motion now before the court, seeking to extend the execution for possession of the premises which was issued more than a year after the original judgment entered against the tenant.

 

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2. Discussion: Executions on judgments for possession of rented and/or leased premises shall not issue more than three months after judgment has entered, “except that any period during which execution was stayed by order of the court or by an agreement of the parties filed with the court shall be excluded from the computation of the period of limitation.” G.L.c.235, s.23. Furthermore, such executions are to be returned to the court within three months of issuance and are not to be levied upon “for possession later than three months

following the date of the issuance of the execution.” G.L.c.235, s.23.

3. In the instant matter, though the execution issued for the first time in excess of the three months anticipated by the statute, it issued after hearing before a judge and I can only assume that the court was satisfied that the delay between the entry of judgment and issuance of the execution (more than the three month’s anticipated by the statute) was due to the parties attempting to work something out. What is before the court at this time is the landlord’s motion for a new execution for possession. The basis for the motion is that the landlord failed to use the execution within the three month’s allowed by the statute for no reason other than a “misunderstanding” between the landlord and its counsel as to which office was to effectuate the physical eviction. The landlord does not suggest that the delay was due to any attempts by the parties to resolve the matter.

4. Conclusion and Order: Based on the foregoing, the court hereby denies the motion due to the landlord’s failure to prove that the failure to use the execution for possession was due to any bases which might call for the staying of the time period granted in G.L.c.235, s.23. The judgment for money damages stands but no execution for possession of the subject premises may issue in this summary process action.

 

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So entered this ____ day of June, 2009.

 

 

 

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End Of Decision

 

 

HOUSING COURT

CHRISTOPHER RICE, Plaintiff, v. TODD BEDDOW, Defendant

 

Western Division

 

 

Docket # No. 09-CV-34

 

Parties: CHRISTOPHER RICE, Plaintiff, v. TODD BEDDOW, Defendant

 

Judge: /s/Robert G. Fields

Associate Justice

 

Date: June , 2009

 

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned matter came before the court for trial on June 16, 2009, after which the following findings of facts, rulings of law, and order for entry of judgment are to enter:

1. Background: The plaintiff, Christopher Rice (landlord), owns a single-family house at 1327 Main Street in Agawam, Massachusetts (the premises), which he rented to the defendant, Todd Beddow (tenant) and his family. The tenancy began in June, 2000 and ended when the tenant and his family moved out in November, 2008.

2. Preliminary Matters: This case was originally brought as a summary process matter for non-payment of rent and the tenant filed counterclaims and defenses. When the tenant vacated the subject premises the matter was transferred to the regular civil docket. Additionally, and by agreement of the parties, any personal injury claims that may exist due to alleged existence of lead based paint at the premises are not a part of this civil action and the parties retain their right to adjudicate such claims outside of this

litigation.

 

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3. The Landlord’s Claim for Rent: The landlord established his claim for rent in the amount of $30, 297. Such arrearage began shortly after the tenancy began and continued to accumulate during the entire eight years of the tenancy.

4. Tenant’s counterclaims: The tenant alleges that there were at various times of the tenancy conditions of disrepair on the premises which the landlord failed to repair. Such conditions included the existence of lead based paint and, in addition to claims for the breach of warranty of habitability, the tenant is seeking damages for breach of quiet enjoyment due to the existence of lead based paint. Additionally, the tenant alleges that the landlord failed to compensate him for yard work the tenant performed during the tenancy. The tenant also alleges that he was not given proper value for personal items the tenant gave the landlord in lieu of rent.

5. Warranty of Habitability: The tenant described various conditions of disrepair. Such conditions included a loose railing in the front of the house mold in the bathroom, faulty windows, a broken corner of a wall, and an overall need to be “cleaned up.” The court credits the tenant’s testimony regarding these conditions and find that they constituted violations of the minimum standards of fitness for human habitation as set forth in Article II of the State Sanitary Code, 105 C.M.R. 410.00 et seq. and, as such, constitutes a claim of 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

 

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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).

6. I find that the fair rental value of the premises was reduced by 5% as a result of these conditions and that they existed, for the most part, throughout the tenancy. The tenant’s damages, therefore, for the landlord’s breach of the warranty of habitability are $3,470 ( $69,400 X 5% = $3,470).

7. Breach of the Covenant of Quiet Enjoyment; existence of lead based paint: The tenant failed to provide admissible proof of the existence of lead based paint. As such, the court finds for the landlord on the tenant’s claim of breach of quiet enjoyment and awards no damages on this claim to the tenant.

8. Claim for uncompensated lawn care: The tenant failed to provide sufficient evidence upon which the court could find for him on a claim that he performed uncompensated lawn care. As such, the court finds for the landlord on the tenant’s claim of breach of quiet enjoyment and awards no damages on this claim to the tenant.

 

9. Claim for failure to pay sufficient value for personal items given in lieu of rent: The parties agree that the tenant gave the landlord three personal items in lieu of rent: a mower, a mini-bike, and an ATV. The claim asserted at trial by the tenant is that instead of receiving the value of one month’s rent for each such item, he should have been given more. The tenant failed to provide any evidence in support of this contention and acted in a manner which is contrary to his position when he failed at any time other than at the hearing, to make any attempt to communicate to the landlord that he felt that he was not properly compensated. As such, the court finds for the landlord on the tenant’s claim that he was insufficiently compensated for these personal items and awards no damages on this claim.

 

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10. Order for Entry of Judgment: For the foregoing reasons, a judgement shall enter for the landlord in the amount of $26,827 plus court costs. This represents the total amount of outstanding rent ($30,297) minus the damages awarded the tenant ($3,470).

 

So entered this ____ day of June, 2009.

 

 

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End Of Decision

 

HOUSING COURT

DIANA ANDINO and DIANE WEEKS, Plaintiffs, v. DEBORAH LEITE, Defendant.

 

Western Division

 

 

Docket # No. 09-CV-877

 

Parties: DIANA ANDINO and DIANE WEEKS, Plaintiffs, v. DEBORAH LEITE, Defendant.

 

Judge: /s/Robert Fields

Associate Justice

 

Date: June , 2009

 

ORDER

After hearing on June 22, 2009, on review of this matter, at which the plaintiffs appeared and the defendant failed to appear, the following order is to enter:

 

1. Because the landlord failed to appear, a capias shall issue for her arrest.

 

2. Diane Weeks, a tenant on the second floor of the subject premises located at 48 Whittier Street in Springfield, MA, shall-with her assent be added as an indispensable party-plaintiff.

 

3. Ms. Weeks agrees to put the electric utility in her name for the time being for both her unit and that of Ms. Andino, the other tenant and plaintiff.

 

4. The parties are not permitted to reside on the premises until the electric utility is restored.

 

 

5. The Housing Specialist Department of the court shall make a referral of this matter to the Housing Intervention Program of the Western Massachusetts Legal Services through the attention of Attorney Kevin Heffernan.

 

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6. This matter shall be scheduled for review on July 14, 2009 at 2:00 p.m. All parties must appear at that time.

 

So entered this ____ day of June, 2009.

 

 

 

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End Of Decision

HOUSING COURT

MONTCALM ASSOCIATES, Plaintiff, v. JOSEPH KAKLEY, JR., Defendant.

 

Western Division

 

 

Docket # No. 09-SP-1079 09-CV-730

 

Parties: MONTCALM ASSOCIATES, Plaintiff, v. JOSEPH KAKLEY, JR., Defendant.

 

Judge: /s/Robert Fields

Associate Justice

 

Date: May , 2009

 

ORDER

After hearing on May 28, 2009, on the defendant’s (tenant’s) emergency motion to stop the physical eviction, at which both parties appeared, the following order is to enter:

1. Background: A default judgment entered in this matter on April 10, 2009 due to the tenant’s failure to appear for a summary process trial on April 9, 2009. A non-military affidavit, indicating that the plaintiff (landlord) believed that the tenant was not on active duty in the military, was filed on April 9, 2009. Thereafter, on May 14, 2009, an execution issued for rent, costs, interests and possession.

2. The tenant was then served with a 48-hour notice that a physical eviction would be conducted on May 28, 2009 at 9:00 a.m. The tenant filed an emergency application to stop the physical eviction and the pleadings were faxed by the court to the landlord’s attorney on the afternoon of May 27, 2009. Based on the filing of the emergency application, the landlord had the locks changed at the scheduled time but did not remove the tenant’s belongings pending a

 

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hearing by the court.

3. Discussion: The tenant reports to the court that he is indeed on active duty in the U.S. Army and was stationed at Fort Knox in Tennessee from March 3, 2009 until May 3, 2009. Therefore, he argues, he was not aware of the summary process matter nor that a judgment had entered against him. Furthermore, he is seeking the protections afforded him by the Soldiers’ and Sailors’ Civil Relief Act (which is now the Service Members Civil Relief Act, 50 U.S.C. s.501 et seq.) and that the default be vacated and the matter returned to the trial list. The tenant did not indicate that he has any defenses or counterclaims other than challenging the landlord’s assertion of how

much rent is owed.

4. The tenant did not have any paperwork with him that would prove that he was on active duty for the U.S. Army at the time of the judgment but offered that he could secure such documents by tomorrow morning, May 29, 2009. Without the paperwork, the court is not convinced of the veracity of the tenant’s assertions.

5. Based on the foregoing, the court has scheduled this matter for further hearing on May 29, 2009 at 12:00 p.m. This time was arranged by agreement of the parties. At that time, the tenant shall provide verification of his military duty. At this time, the court does not require that the landlord allow the tenant access to the subject premises.

 

So entered this ____ day of May, 2009.

 

 

 

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End Of Decision

 

 

HOUSING COURT

GREGORY GILES, Plaintiff, v. DAVID AYERS, Defendant.

 

Western Division

 

 

Docket # No. 09-SP-1892

 

Parties: GREGORY GILES, Plaintiff, v. DAVID AYERS, Defendant.

 

Judge: /s/Robert G. Fields

Associate Justice

 

Date: June , 2009

 

FINDINGS, RULINGS AND ORDER FOR ENTRY OF JUDGMENT

The above-captioned summary process (eviction) matter came before the court for trial on June 15, 2009, after which the following findings of facts and rulings of law are to enter:

1. Background: The plaintiff, Gregory Giles (landlord), owns a three-family house at 27-29 Eddy Street, Ware, Massachusetts, (the premises) where he rents an apartment to the defendant, David Ayers (tenant). The tenancy began in November, 2008 and the monthly rent is $650.

2. The Landlord’s Claim for Possession: The landlord has established the prima facie elements of his claim for possession and for outstanding rent. Specifically, the court finds that the landlord served a termination notice to the tenant for non-payment of rent on April 29, 2009, and then had him served properly with a summons and complaint. The outstanding rent through

 

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June, 2009 is $2,300.[1] What remains for the court’s determination, therefore, are the tenant’s defenses and counterclaims.

3. Tenant’s defenses and counterclaims: The tenant alleges that there have been at various times of the tenancy and through the date of the trial, conditions of disrepair on the premises which the landlord has failed to repair. Additionally, the tenant alleges that the landlord has been verbally abusive and threatening towards him on several occasions.

4. Warranty of Habitability: The tenant described various conditions of disrepair. Such conditions include the lack of heating sources in the kitchen and the bathroom, infestation of mice, poorly

functioning heating system throughout the unit, and a loose hand railing on the front of the house. The court credits the tenant’s testimony only in regards to the lack of heating systems in the kitchen and bathroom. This condition 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. and, as such, constitutes a defense based upon breach of the implied warranty of habitability, for which the landlords are 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

 

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[1] The landlord is in possession of $700 paid by the tenant as a “last month’s rent” given at the commencement of the tenancy. The landlord shall hold and return/credit such funds in accordance with G.L. c.186, s.15B.

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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 was reduced by 15% as a result of the lack of heating sources in the kitchen and bathroom and that this condition has existed through the tenancy, approximately seven months of the heating season. The tenant’s damages, therefore, for the landlord’s breach of the warranty of habitability are $682.50 ( $650 X 15% _ $97.50 X 7 months).

6. Breach of the Covenant of Quiet Enjoyment; alleged threats and aggressive behavior: The tenant alleges that the landlord has been verbally aggressive towards him on several occasions. The court does not credit this testimony and finds for the landlord on the tenant’s claim of breach of quiet enjoyment and awards no damages on this claim to the tenant.

7. Order for Entry of Judgment: 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 $1,617.50. This represent $2,300 (landlord’s rent claim) – $682.50 (tenant’s damages). If he 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 $1,617.50 plus costs against the defendant, at the expiration of the statutory ten day period.

 

So entered this ____ day of June, 2009.

 

 

 

 

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End Of Decision

 

HOUSING COURT

MONTCALM ASSOCIATES, Plaintiff, v. JOSEPH V. KAKLEY, JR., Defendant.

 

Western Division

 

 

Docket # No. 09-CV730, 09-SP-1079

 

Parties: MONTCALM ASSOCIATES, Plaintiff, v. JOSEPH V. KAKLEY, JR., Defendant.

 

Judge: /s/Robert Fields

Associate Justice

 

Date: June 11, 2009

 

ORDER

After hearing on June 3, 2009, on the defendant’s (tenant’s) application for a stay in the use of the execution and/or to vacate the default judgment, at which the plaintiff (landlord) appeared but the tenant did not appear, the following findings, rulings and order are to enter:

 

1. A default judgment entered on April 10, 2009 against the tenant due to his failure to appear at the summary process trial.

 

2. An execution for possession and $3,069.13 plus court costs and interest was issued on May 14, 2009.

 

3. On May 27, 2009, the tenant filed an emergency action in the court to stop a physical eviction scheduled for the following day.

 

4. On May 28, 2009, after the sheriffs had changed the locks on the tenant’s apartment in accordance with G.L. c.239, s.3, but before the tenant’s belongings

 

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were removed from the unit, the parties were heard by the court.

 

5. The bases for the tenant’s emergency request for an injunction was that he was in active duty in the military at the time of the entry of the judgment. The tenant did not have any paperwork to support his position and due to several discrepancies in his presentation he appeared less than credible. The tenant said that he would be able to bring supportive paperwork the following morning to the court.

 

6. With a focus on protecting the rights of members of the military in accordance with the Service Members Civil Relief Act, 50 U.S.C. s.50 (SCRA) the court continued the hearing until the next day, May 29, 2009 to determine if the judgment should be removed.

 

7. On May 29, 2009, the tenant provided the landlord and the court with documents that he alleged were proof of his service dates. Though the documents did not appear to be official and contained spelling errors, the landlord agreed without a hearing

to provide the tenant with a key to his apartment and continued the matter for further hearing on the removal of the default judgment for June 3, 2009.

 

8. On June 3, 2009, the landlord appeared and the tenant failed to appear.

 

9. Based on the foregoing, the fact that the tenant failed to appear for hearing on his motion, and the lack of credibility of the tenant and his documents, the motion to vacate the default is hereby denied. The landlord may use the execution for possession after service of a new 48-hour notice in accordance with G.L. c.239, s.3.

 

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So entered this 11th day of June, 2009.

 

 

 

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End Of Decision

 

HOUSING COURT

ANNE MAYNARD, Plaintiff, v. HAROLD FITZGERALD, FITZGERALD PROPERTIES and STEPHEN CHAPUT REAL ESTATE MANAGEMENT, Defendant.

 

Western Division

 

 

Docket # No. 09-SC-37

 

Parties: ANNE MAYNARD, Plaintiff, v. HAROLD FITZGERALD, FITZGERALD PROPERTIES and STEPHEN CHAPUT REAL ESTATE MANAGEMENT, Defendant.

 

Judge: /s/Robert Fields

Associate Justice

 

Date: December , 2009

 

ORDER

After hearing on November 9, 2009, on the defendant Stephen Chaput Real Estate Management’s motions to dismiss and, in the alternative, to vacate default, at which all parties appeared, the following order is to enter:

1. Procedural Background: This small claims matter was first tried and heard before an Assistant Clerk Magistrate on May 4, 2009. On May 15, 2009, the court dismissed the claims against one of the defendants, Stephen Chaput Real Estate Management (“Chaput”) and entered an order of judgment against the other defendants, Harold Fitzgerald and Fitzgerald Properties (“Fitzgerald”) for violation of G.L.c.186, s.14 in the amount of $2,100. Fitzgerald filed a notice of appeal and a trial de novo was conducted by a judge on September 14, 2009. The court, on September 24, 2009, entered an order of judgment against all the defendants, Chaput and Fitzgerald, for violation of G.L. c.186, s.14 in the amount of $2,100. The judgment was entered

 

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by default against Chaput due to his failure to appear, but it was made clear in the court’s order that the judgment for $2,100 was made on a joint and several basis. On October 29, 2009, Chaput filed motions to vacate the default judgment and to dismiss.

2. Discussion: The notice of appeal filed by Fitzgerald after

the Assistant Clerk’s Magistrates decision was mailed to Chaput. The notice of trial sent by the court for the de novo judge trial was sent to Chaput on August 20, 2009, scheduling the matter for September 14, 2009. During that three week period of time after notice of the trial and the trial date, Chaput did not inquire with the court nor file any motion regarding his status in the case. Instead, he chose to not appear for trial. Chaput then hired counsel who filed the motions now before the court more than a month after the court’s payment order and after the deadline for payment set therein. Chaput filed a letter from his treating physician in support of his motions indicating that he suffers from lupus and insomnia. The letter indicates that Chaput’s medical condition to cause him to “miss scheduled court dates.”

3. The court finds that there is insufficient bases to vacate the default judgment against Chaput and also finds no basis for dismissing the case against him. Even assuming that what was proffered by Chaput’s counsel (Chaput did not appear) at the motion hearing is accurate, that Chaput believed that because the earlier decision of the court had dismissed the case against him and, therefore, he did not need to appear for the de novo trial, his belief was wrong as a matter of law. Moreover, to do so he had to ignore the notice of appeal sent to him by Fitzgerald and ignore the notice of trial sent by the court that had Chaput’s name as part of the caption. Additionally, he took no affirmative steps after being sent these notice to inquire with the court.

3. Conclusion and Order: For the foregoing reasons, Chaput’s motion to vacate the

 

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default judgment and motion to dismiss are both denied. The judgment was issued on a joint and several basis and the full amount must be paid immediately. This means that the plaintiff may pursue payment of the judgment against all the defendants, jointly or severally, and there is no order of this court which allows any one defendant to pay any amount less than $2,100. Of course, the plaintiff may not collect more than $2,100 in total from any one or all of the defendants combined.

4. Payment Hearing: A payment hearing shall be scheduled by the Clerk’s Office. If payment of the total judgment has been made prior to that hearing date, the plaintiff may notify the court that the judgment has been satisfied and that there is no need for the hearing.

 

So entered this ____ day of December, 2009.

 

 

 

cc: Peter Montori, First Assistant Clerk Magistrate

 

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Hunt H December 21, 2013 at 11:31 am

The system should not have Robert Fields as a judge, he is extremely biased. He believes tenant’s testimony and throws away landlord’s proofs. He decreases landlord’s claims and awards tenants above and beyond the maximum award a tenant could get. A landlord should not be assumed guilty till proven innocent and the tenant should not be innocent even though he is guilty. There should be an end to it.

Elmir Simov December 21, 2013 at 5:03 pm

That’s what happens when landlord groups do not protest the appointment to the bench of a Legal Services Lawyer like Judge Fields. To protest you need to have balls and knowledge and Western MA landlord groups seem to have none.

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