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Housing Court Cases – Judge Timothy Sullivan, Worcester Division

HOUSING COURT

CHURCHWOOD APARTMENTS AND JOSEPH INNAMORATI VS. STANTON BERNARD HOLLEY

 

WORCESTER COUNTY DIVISION

 

 

Docket # NO. 06-SP-4061

 

Parties: CHURCHWOOD APARTMENTS AND JOSEPH INNAMORATI VS. STANTON BERNARD HOLLEY

 

Judge: /s/ TIMOTHY F. SULLIVAN, ASSOCIATE JUSTICE

 

Date: January 19, 2007

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

In this eviction case, plaintiff seeks possession and unpaid rent from defendant, who filed a written answer that included an affirmative defense to possession and counterclaims arising from the tenancy. The court finds as follows: Plaintiff owns 111 Woodland Street, Worcester, wherein defendant resided at Apartment #10 subject to the terms of a lease. The rent is $650.00 due the

 

first day of each month. Defendant paid no rent since June 2006. On October 19, 2006, plaintiff served defendant with a legally sufficient fourteen (14) day notice to quit for non-payment of rent. Defendant vacated the premises in December 2006.

Defendant asserted a counterclaim under G.L. c. 239, s 8A, claiming plaintiff breached the implied warranty of habitability, entitling defendant to a rent abatement. Defendant reported various defects to plaintiff throughout his tenancy. For example, he reported a broken hallway light in January 2001, and defective lights in the kitchen and upstairs hallway in June 2002. A bathroom light was reportedly defective in March 2006. The court finds such defects, all of which were repaired without undue delay, did not constitute a breach of the implied warranty.

Defendant testified about mold on his refrigerator liner, worn carpet, and peeling paint on

 

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a bathroom ceiling. He also mentioned defective kitchen flooring, and a crack on the dining room ceiling. The court finds said conditions to be minor cosmetic defects that do not constitute a breach of the implied warranty of habitability.

In July 2006, a roof leak damaged defendant’s apartment. Plaintiff learned immediately about the leak, and completed all necessary repairs on December 13, 2006. Photographs of the water damage were presented by defendant. The court finds such conditions constituted a breach of the implied warranty, entitling defendant to a monthly rent abatement of $75.00 from July through December 2006 ($450.00).

Defendant paid a last month’s rent deposit ($600.00) in November 1999, which is applied toward his last month of occupancy (December 2006). No interest on said deposit was paid, and under G.L. c. 186, s. 15B(2) defendant is awarded three times the interest payable at a rate of 5% from November 1999 through November 2006 ($637.50).

As to all other counterclaims asserted in defendant’s written

answer, no evidence was presented thereon, and the court finds in favor of plaintiff on all such claims.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ordered that judgment enter in favor of plaintiff (landlord) for possession and damages of $2,212.50, ($3,300.00 unpaid rent through December 2006, minus $450.00 rent abatement under G.L. c. 239, s. 8A, minus $637.50 due defendant under G.L. c. 186, s. 15B) plus court costs.

 

 

 

 

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End Of Decision

 

HOUSING COURT

CHRISTOPHER ROBERTS VS. JASON DENHAM

 

 

WORCESTER DIVISION

 

Docket # SUMMARY PROCESS NO. 06-SP-19

Parties: CHRISTOPHER ROBERTS VS. JASON DENHAM

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: January 26, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

In this eviction case, landlord seeks possession of the premises from tenant for non-payment of rent. No written answer was filed, and the court finds as follows: Plaintiff owns 19 Mt. Pleasant Street, Webster. Defendant occupies the second and third floor of the premises as a tenant-at-will. The rent is $1,200.00 due the first day of each month. Defendant has not paid any rent to plaintiff for November, December or January. leaving a balance of $3,600.00 due plaintiff, who terminated the tenancy by serving defendant with a legally sufficient fourteen (14) day notice to quit for non-payment of rent.

Defendant asserted a defense to possession, claiming plaintiff breached the implied warranty of habitability by failing to install an interior door at the stairway between the first and second floors of the apartment. There exists with respect to every residential tenancy. an implied warranty that the premises are fit for human habitation. A landlord is in breach of the warranty if defects exist that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the warranty occurs from the point in time that the landlord knew or should have known such a defect or substantial

 

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Sanitary Code violation in the apartment.

G.L. c. 239. s. 8A provides that the tenant is entitled to a defense to possession if: (1) the landlord knew or should have

known of the conditions before the tenant was in arrears in his rent, and: (2) the landlord does not show that the tenant caused the conditions. If the court finds that the amount of rent due the landlord is greater than the amount due the tenant on his counterclaims and defenses. the landlord is not entitled to possession provided the tenant pays the balance due the landlord within seven (7) days of the tenant’s receipt of the court’s decision.

The court finds that the missing interior door constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, supra. Plaintiff knew about this condition in October. before defendant was behind in his rent. Defendant is entitled to a rent reduction of $60.00 per month from October 1″ ($240.00 total reduction through January 2007). Accordingly. the amount due plaintiff under Section 8A is $3,360.00.

 

ORDER FOR JUDGMENT

 

It is ordered that judgment enter in favor of defendant/tenant for possession pursuant to the fifth (5`h) paragraph of G.L. c 239, s. 8A, on the condition that within seven (7) days of his receipt of this order, defendant deposits with the Clerk of this Court $3,360.00 by cash, bank check or money order. If this deposit is made, the Clerk shall immediately release all such funds held by the court to plaintiff/landlord. If the deposit is not made as prescribed, judgment shall automatically enter in favor of plaintiff for possession and damages in the amount of $3,360.00 through January 2007, plus court costs.

 

 

 

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End Of Decision

 

HOUSING COURT

XIRA REAL ESTATE, LLC VS. ERICK LAWRENCE AND TINA BATES

 

WORCESTER COUNTY DIVISION

 

Docket # SUMMARY PROCESS NO. 07-SP-416

Parties: XIRA REAL ESTATE, LLC VS. ERICK LAWRENCE AND TINA BATES

Judge: /s/Timothy F. Sullivan

Associate Justice

Date: February 23, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

In this eviction case, plaintiff seeks to recover possession of the premises from defendants for non-payment of rent, and the court finds as follows: Plaintiff owns 32 Ellsworth Street, Worcester, wherein defendants have resided at the “rear house” since October 4, 2006 subject to a lease. The rent is $625.00 due the first day of each month. Defendants paid a last month’s rent deposit of $475.00. No rent was paid for November, December, January or February, leaving a total balance of $2,500.00 due plaintiff, who terminated the tenancy for for non-payment of rent.

Defendants asserted defenses and counterclaims under G.L. c. 239, s 8A, claiming the conditions at the premises were defective. There exists with respect to every residential tenancy, an implied warranty that the premises are fit for human habitation. A landlord is in breach of the warranty if defects exist that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the warranty occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the premises.

A plumbing leak was discovered in the bathroom at the premises shortly after defendants moved in. Plaintiff was immediately notified, and a substantial re-construction of the bathroom began right away. The bathroom facilities were temporarily inoperable, and a nearby vacant apartment was made available to defendants until repairs were done. The court finds that no rent is payable for the month of October 2006.

In December and January, defendants complained to the Worcester Health Department

 

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about additional defects at the premises. After inspection, plaintiff was cited for protruding nails on an interior stairway, water damage to ceilings around the chimney, unfinished bathroom walls, a broken kitchen window, cracked kitchen walls, water damaged living room ceilings, and a loose fitting toilet connection along the bathroom floor.

The court finds that said defects, none of which were caused by defendants, constitute a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, supra. The measure of damages for plaintiffs breach is the difference between the fair rental value of the premises free of defects and the fair rental value given the defective condition. Boston Housing Authority v. Hemingway, supra; Haddad v. Gonzalez, 410 Mass. 855,

872 (1991). The court finds that the fair rental value of the premises free of defects is $625.00, and that the fair rental value given the existing defects is $375.00.

Plaintiff knew said defective conditions before defendants were first in arrears in the rent. Accordingly, defendants established a defense to possession under G.L. c. 239, s. 8A. The fair rental value of the premises from October 2006 totals $1,500.00. During that same period of time, defendants paid $625.00 to plaintiff. Therefore, the balance due plaintiff under Section 8A is $875.00.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial, it is ordered that judgment enter for defendants for possession pursuant to the fifth (5`h) paragraph of G.L. c 239, s. 8A, on the condition that within seven (7) days of their receipt of this order, defendants deposit with the Clerk of this court the sum of $875.00 by cash, bank check or money order. If this deposit is made, the Clerk shall immediately release all such funds held by the court to plaintiff. If the deposit is not made as prescribed, judgment shall automatically enter in favor of plaintiff for possession and unpaid rent damages in the amount of $875.00 through February 2007, plus court costs.

 

 

 

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End Of Decision

 

HOUSING COURT

MARK ASTRELLA AND TRISTA ASTRELLA VS. MARK ROBBINS AND CYNTHIA ROBBINS

 

WORCESTER COUNTY DIVISION

 

Docket # SUMMARY PROCESS NO. 07-SP-225

Parties: MARK ASTRELLA AND TRISTA ASTRELLA VS. MARK ROBBINS AND CYNTHIA ROBBINS

Judge: /s/Timothy F. Sullivan

Associate Justice

Date: March 1, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

In this eviction case, plaintiff seeks to recover possession of the premises from defendants for non-payment of rent. Defendant filed a written answer, and the court finds as follows: Plaintiff owns 11 Central Street, West Brookfield, wherein defendants reside in the first floor apartment as tenants-at-will. The rent is $750.00 due the first day of each month. Defendants owe $400.00 toward November rent, and paid no rent for December, leaving a total balance of $1,150.00 due plaintiff, who terminated the tenancy for non-payment of rent.

Defendants asserted defenses and counterclaims under G.L. c. 239, s 8A, claiming the conditions at the premises were defective. There exists with respect to every residential tenancy, an implied warranty that the premises are fit for human habitation. A landlord is in breach of the warranty if defects exist that may materially

affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the warranty occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the premises.

In July 2006, defendants informed plaintiff that the flooring tiles were defective. Other defective conditions were reported to plaintiff on September 28th after the Board of Health inspected the premises, citing plaintiff for defective flooring in the kitchen and bathroom, a defective shower insert, and problems with the bathroom baseboard. Other defects cited were broken window panes, unsafe porches and trash left by a former tenant in the exterior common area. The defects were repaired by the end of December. A cracked window and a gas grill

 

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await plaintiff’s attention.

The court finds that said defects, none of which were caused by defendants, constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, supra. The measure of damages for plaintiff’s breach is the difference between the fair rental value of the premises free of defects and the fair rental value given the defective condition. Boston Housing Authority v. Hemingway, supra; Haddad v. Gonzalez, 410 Mass. 855, 872 (1991). The court finds that the fair rental value of the premises free of defects is $750.00, and that the fair rental value given the existing defects is $600.00.

Plaintiff knew said defective conditions existed in July, before defendants were first in arrears in the rent. Accordingly, defendants established a defense to possession under G.L. c. 239, s. 8A. The fair rental value of the premises from July 2006 (considering the defects that existed from July through December) totals $5,100.00. During that same period of time, defendants paid $4,850.00 to plaintiff. Therefore, the balance due plaintiff under Section 8A is $250.00. As to all other counterclaims asserted by defendants, including retaliation, the court finds in favor of plaintiff.

 

ORDER FOR JUDGMENT

 

Based on the credible testimony and evidence presented at trial, it is ordered that judgment enter in favor of defendants for possession pursuant to the fifth (5th) paragraph of G.L. c 239, s. 8A, provided that, within seven (7) days of their receipt of this order, defendants deposit with the Clerk of this court the sum of $250.00 by cash, bank check or money order. If such deposit is made, the Clerk shall immediately release all such funds to plaintiff. If the deposit is not made as prescribed, judgment shall automatically enter in favor of plaintiff for possession and unpaid rent damages in the amount of $250.00 through February 2007, plus court costs.

 

 

 

 

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End Of Decision

 

HOUSING COURT

ESTHER RANDOLPH VS. WANICA SANTOS

 

WORCESTER COUNTY DIVISION

 

Docket # SUMMARY PROCESS NO. 07-SP-561

Parties: ESTHER RANDOLPH VS. WANICA SANTOS

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: March 8, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

Plaintiff established a prima facie case for possession and unpaid rent damages in the amount of $5,400.00. Defendant asserted defenses and counterclaims under G.L. c. 239, s 8A, claiming the conditions at the premises were defective. There exists with respect to every residential tenancy, an implied warranty that the premises are fit for human habitation. A landlord is in breach of the warranty if defects exist that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the warranty occurs from the

point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the premises.

On November 16, 2006, defendant called the health department to complain about defective conditions in the apartment. After inspection, the health department forwarded a written report to plaintiff on November 22nd, citing a number of Sanitary Code violations. Additional violations were cited by the health department in written reports to plaintiff dated December 12, 2006 and February 5, 2007 respectively. (See Defendant’s Exhibit A).

The court finds that the defective conditions cited therein, none of which were caused by defendant, in the aggregate constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, supra. Although plaintiff knew or should have known about such defects in the premises since the beginning of the tenancy, the conditions did not constitute a breach of quiet enjoyment under G.L. c. 186, s. 14.

The measure of damages for plaintiff’s breach is the difference between the fair rental

 

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value of the premises free of defects and the fair rental value given the defective condition. Boston Housing Authority v. Hemingway, supra; Haddad v. Gonzalez, 410 Mass. 855, 872 (1991). The court finds that the fair rental value of the premises free of defects is $900.00, and that the fair rental value (considering the defects that have existed since September 2006) is $675.00. The fair rental value of the premises from September 2006 totals $4,725.00. During that same period of time, defendant paid $900.00 in rent to plaintiff. Accordingly, the balance due plaintiff under Section 8A is $3,825.00.

As to all other counterclaims asserted by defendant, the court finds in favor of plaintiff.

 

ORDER FOR JUDGMENT

 

Based on the credible testimony and evidence presented at trial, it is ordered that judgment enter in favor of defendant for possession pursuant to the fifth (5th) paragraph of G.L. c 239, s. 8A, provided that, within seven (7) days of receipt of this order, defendant deposits with the Clerk of this court the sum of $3,825.00 by cash, bank check or money order. If such deposit is made, the Clerk shall immediately release all such funds to plaintiff. If the deposit is not made as prescribed, judgment shall automatically enter in favor of plaintiff for possession and unpaid rent damages in the amount of $3,825.00 through March 2007, plus court costs.

 

 

 

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End Of Decision

 

HOUSING COURT

HERBERT MATOVU VS. STEPHANIE POWERS

 

WORCESTER COUNTY DIVISION

 

Docket # SUMMARY PROCESS NO. 07-SP-991

Parties: HERBERT MATOVU VS. STEPHANIE POWERS

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: April 12, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

This is a summary process action in which plaintiff is seeking to recover possession of the premises from defendant for non-payment of rent. Defendant filed a written answer that included an affirmative defense to possession and counterclaims arising from the tenancy, and the court finds as follows: Plaintiff owns the premises located at 17 Pond Street, Worcester, wherein defendant resides in Apartment #1 subject to the terms of a written lease. The rent is $905.00 due the first day of each month. The rent payments are subsidized, defendant’s portion currently at $346.00. Defendant has not paid her share of the rent since July 2006, leaving a total balance of $3,149.00 in unpaid rent due plaintiff, who terminated the tenancy by serving a legally sufficient fourteen (14) day notice to quit upon defendant.

Defendant asserted a defense to possession under G.L. c. 239, s 8A, claiming plaintiff breached the implied warranty of habitability. There exists with respect to every residential tenancy an implied warranty that the premises are fit for human habitation. A landlord is in breach of the warranty where defects exist that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach

 

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occurs from the time the landlord knew or should have known of a substantial defect/Sanitary Code violation in the apartment.

Section 8A provides that, where a tenancy has been terminated for non-payment of rent, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy, or occupancy for breach of warranty….” The landlord is not entitled to recover possession of the premises if the court finds that the amount of rent due the landlord equals or is less than the amount due the tenant on his counterclaims and defenses.

In June 2006, a pipe leaked from the upper floors of defendant’s apartment building causing damaged in defendant’s apartment. Plaintiff replaced some damaged ceiling tiles after defendant told him about the water problems in June 2006. The leak caused a brief interruption of defendant’s heat and electrical services. The court suspended the trial, and referred the matter to Housing Specialist James Walsh for inspection. A written inspection report, citing numerous defects within defendant’s apartment, was sent to all parties and filed with the court by Mr. Walsh on April 5, 2007. Trial resumed on April 12th so the parties could comment on said report or cross examine Mr. Walsh directly.

The court finds that the conditions cited in Mr. Walsh’s report in the aggregate constituted a breach of the implied

warranty of habitability. Boston Housing Authority v. Hemingway, supra. Defendant did not cause any of the defective conditions.

The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises free of defects and the fair rental value of the premises during the period that the defective condition existed. Boston Housing Authority v. Hemingway, supra; Haddad v. Gonzalez, 410 Mass. 855, 872 (1991). The court finds that

 

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the fair rental value of the premises free of defects is the contract rent of $905.00. The court finds that the fair rental value of the premises given the defective conditions is $625.00.

Plaintiff knew about the defective conditions since June 2006, before defendant was first in arrears in the rent, so defendant has established her defense to possession under Section 8A. The fair rental value of the premises from June 2006 (taking into account the defective conditions) totals $6,875.00. During that same period of time, plaintiff received $6,841.00 in rent. Accordingly, the amount due plaintiff (landlord) in accordance with Section 8A is $34.00.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ordered that judgment enter for defendant (tenant) for possession pursuant to the fifth (5`h) paragraph of G.L. c 239, s. 8A, on the condition that within seven (7) days of her receipt of this order, she deposits with the Clerk of this court the sum of $34.00 by cash, bank check or money order. If this deposit is made, the Clerk shall immediately release all such funds held by the court to plaintiff. If the deposit is not made as prescribed, judgment shall automatically enter in favor of plaintiff for possession and damages in the amount of $34.00 through April 2007, plus court costs.

 

 

 

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End Of Decision

 

HOUSING COURT

MARY ASMAR v. CARMEN ZAYAS

 

 

 

ESSEX, ss.

 

Docket # NO. 07-SP-1541

Parties: MARY ASMAR v. CARMEN ZAYAS

Judge: /s/TIMOTHY F. SULLIVAN ASSOCIATE JUSTICE

Date: December 6, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF,JUDGMENT

 

In this eviction case, plaintiff seeks possession of the premises from defendant for non-payment of rent. Defendant filed a written answer that included affirmative defenses and counterclaims arising from the tenancy, and the court finds as follows: Plaintiff owns a three-family house at 60 Pinehurst Avenue, Auburn, wherein defendant has resided as a tenant-at-will in the first-floor apartment since February 2007. The rent is $500.00 due the first of each month. Defendant has paid no rent for February, March, April, May or June 2007, leaving a total balance of $2,500.00 due

plaintiff through June. Plaintiff terminated the tenancy by serving defendants with a legally sufficient notice to quit.

Defendant claims defective conditions within the premises. There exists with respect to every residential tenancy, an implied warranty that the premises are fit for human occupation. A landlord is in breach of the warranty if defects exist that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the implied warranty occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the premises.

The Auburn Health Department inspected the premises and served plaintiff with a notice dated June 6, 2007 (Defendant’s Trial Exhibit A) citing numerous violations of the State Sanitary Code. The court finds that the conditions cited in said inspection report in the aggregate constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, supra. Defendant did not cause any of the defective conditions, all of which

 

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plaintiff knew or should have known about before defendant was in arrears in her rent.

The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises free of defects and the fair rental value of the premises during the period that the defective condition existed. Boston Housing Authority v. Hemingway, supra; Haddad v. Gonzalez, 410 Mass. 855, 872 (1991). The court finds that the fair rental value of the premises free of defects is the contract rent of $500.00. The fair rental value of the premises given the defective conditions is $250.00.

The fair rental value of the premises from February 2007 (taking into account the abatement during that period of time that the defective conditions exist) totals $1,250.00. During that same period of time, defendant paid plaintiff $550.00, leaving a balance of $700.00 in unpaid rent.

The court further finds that said defective conditions constitute a breach of quiet enjoyment under G.L. c. 186, s. 14, entitling defendant to three months rent ($1,500.00) plus a reasonable attorney fee.

The court further finds that plaintiffs conduct toward defendant violates G.L. c. 93A, entitling defendant to damages of $25.00 plus a reasonable attorney fee.

 

ORDER FOR JUDGMENT

 

It is ordered that judgment enter in favor of defendant for possession and plaintiff shall pay damages of $825.00 directly to defendant (three month’s rent for breach of quiet enjoyment, plus statutory damages under 93A, minus $700.00 in unpaid rent), plus a reasonable fee to be determined by the court upon defendant’s filing of an attorney fee affidavit.

 

 

 

 

 

 

End Of Decision

HOUSING COURT

GEORGE VALERI v. MARK PRINCE

 

 

WORCESTER COUNTY DIVISION

 

Docket # NO. 07-SP-1660

Parties: GEORGE VALERI v. MARK PRINCE

Judge: /s/Timothy F. Sullivan

ASSOCIATE JUSTICE

Date: June 11, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

In this eviction case, plaintiff established a prima facie case for possession and unpaid rent in the amount of $550.00. Defendant claims the apartment is in dire need of painting and the rugs need to be cleaned or replaced. The Court finds said conditions have existed since the inception of the tenancy (April 22, 2007), and constituted a breach of the implied warranty of habitability. Plaintiff knew or should have known about these defects since before defendant occupied the apartment. Accordingly, defendant is entitled to a rent abatement in the total amount of $110.00, leaving a balance of $440.00 due plaintiff through May 28, 2007.

 

In accordance with G.L. c. 239, s. 8A, it is ordered that judgment enter in favor of defendant (tenant) for possession, on the condition that within seven (7) days of his receipt of this order, defendant deposits with the Clerk of this Court the sum of $440.00 by cash, bank check or money order made payable to GEORGE VALERI. If this deposit is made, the Clerk shall immediately release all such funds to plaintiff. If the deposit is not made as prescribed, judgment shall automatically enter in favor of plaintiff for possession and damages in the amount of $440.00 through May 28, 2007, plus court costs.

 

SO ORDERED

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

SHEILA M. HORGAN v. JESSICA HAKENSON AND FREDERICK JENOURE, III

 

WORCESTER COUNTY DIVISION

 

Docket # NO. 07-SP-1578

Parties: SHEILA M. HORGAN v. JESSICA HAKENSON AND FREDERICK JENOURE, III

Judge: /s/Timothy F. Sullivan

Date: June 11, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

In this eviction case, plaintiff established a prima facie case for possession and unpaid rent in the amount of $3,900.00. Defendants claim the conditions of the apartment breach the implied warranty of habitability. Specifically, they rely on defective conditions cited in a health department inspection report (See Defendants’ Trial Exhibit F) dated May 4, 2007. The Court finds that the defects cited in said report in the aggregate constituted a breach of the implied warranty. Plaintiff knew or should have known about these defects since defendants moved into the apartment in February 2007. The court finds that defendants are entitled to a rent abatement of $195.00 per month, leaving a total balance of $2,925.00 due plaintiff through June 2007.

In accordance with G.L. c. 239, s. 8A, it is ordered that judgment enter in favor of defendants (tenants) for possession, on the condition that within seven (7) days of their receipt of this order, defendants deposit with the Clerk of this Court the sum of $2,925.00 by cash, bank check or money order made payable to SHEILA HORGAN. If this deposit is made, the Clerk shall immediately release all such funds to plaintiff. If the deposit is not made as prescribed, judgment shall automatically enter in favor of plaintiff for possession and damages in the amount of $2,925.00 through June 2007, plus court costs.

 

SO ORDERED

 

 

 

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End Of Decision

 

 

HOUSING COURT

KEVERNE L. GLASGOW v. MICHAEL HESS AND JANIS HESS

 

WORCESTER COUNTY DIVISION

 

Docket # NO. 07-SP-803

Parties: KEVERNE L. GLASGOW v. MICHAEL HESS AND JANIS HESS

Judge: /s/TIMOTHY F. SULLIVAN ASSOCIATE JUSTICE

Date: March 29, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

In this eviction case, plaintiff (landlord) seeks possession of the premises from defendants (tenants) for non-payment of rent. Defendants filed a written answer that included affirmative defenses and counterclaims, and the court finds as follows: Plaintiff owns 12 St. Anthony Street, Worcester, wherein defendants reside at apartment #1 as tenants-at-will. The rent is $750.00 due the first day of each month. Defendants failed to pay plaintiff any rent for January, February and March, leaving a total balance of $2,250.00 in unpaid rent due plaintiff, who terminated the tenancy by serving defendant with a legally sufficient notice to quit for non-payment of rent.

Defendants claim they withheld the payment of rent because of defective conditions in the premises. There exists with respect to every residential tenancy, an implied warranty that the premises are fit for human habitation. A landlord is in breach of the warranty where there exist defects that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973).

Defendants produced evidence showing that such defects as: a hole in the floor of the kitchen closet and on the bathroom wall below the sink, dampness and water staining on kitchen ceiling tiles, defective drip pans in the kitchen stove, and missing protective covers on kitchen and first-floor hallway light fixtures exist in the premises. The court finds that such minor defects do not constitute a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, supra.

Defendants also claim that plaintiff breached their quiet enjoyment of the premises. G.L.

 

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c. 186, s. 14, commonly referred to as the covenant of quiet enjoyment, provides that a landlord who “directly or indirectly interferes with the quiet enjoyment of any residential premises” shall be liable for “actual or consequential damages or three (3) month’s rent, whichever is greater.” Liability is imposed if the landlord’s conduct causes a serious interference with the tenant’s quiet enjoyment of the premises. A serious interference is an act or omission that impairs the character and value of the leased premises. Doe v. New Bedford Housing Authority, 417 Mass. 273, 284-28.5 (1994); Lowery v. Robinson, 13 Mass. App. Ct. 982 (1982).

Defendants said plaintiff breached their quiet enjoyment of the premises by repeatedly turning down the heat in their apartment, disconnecting the washer/dryer in the basement, and causing the gas service to the premises to be terminated by the gas company.

A single heating system services the entire building in which defendants’ apartment is located. It is a gas-fired furnace, which plaintiff is solely responsible for. The thermostat governing the heat in defendants’ apartment is located in separate apartment occupied by plaintiff. Defendants do not have access to the thermostat. Defendants testified that plaintiff consistently deprived them of heat by turning down said thermostat. The court credits their testimony, and discredits plaintiff’s testimony to the contrary. Earlier this winter, N-Star temporarily terminated the gas service (further interrupting the heat in defendants’ apartment) due to plaintiffs failure to pay the gas bill.

The parties agreed at the inception of the tenancy that defendants could use the washer/ dryer appliance(s) in the basement of the premises. Said appliance(s) are owned exclusively by plaintiff, but were an essential part of defendants’ tenancy. In

January, plaintiff disconnected said appliance(s) depriving defendants of any further use thereof. Plaintiff testified that he only did so after defendants bought their own washer/dryer. The court discredits plaintiffs testimony, and finds that the disconnection took place in early January, long before defendants purchased their own appliance(s) on February 22, 2007.

The court further finds that the common area hallway lighting, exterior lighting, and common area washer & dryer, are all metered to the first-floor apartment occupied by defendants. (See Defendants’ Exhibit A). No agreement exists holding defendants responsible for such common area electrical services.

Given the above findings, the court concludes that the credible evidence presented is

 

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more that sufficient to prove that plaintiff directly and intentionally caused a serious interference with defendants’ quiet enjoyment of the premises in violation of G.L. c. 186, s. 14. As a result of plaintiff’s conduct (turning down the thermostat, causing an interruption in the gas service, disconnection of the washer/dryer, and cross metering) defendants suffered a substantial diminution in value of the leased premises, the character of which was seriously impaired as a result of plaintiffs conduct. Accordingly, defendant is entitled to damages in the amount of three months rent or $2,250.00.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ordered that judgment enter in favor of defendants (tenants) for possession. The back rent claimed by plaintiff is directly offset by the damages awarded to defendants under G.L. c. 186, s. 14.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

MARIA PENMAN v. ROBERT KENGETHE

 

WORCESTER COUNTY DIVISION

 

Docket # NO. 07-SP-921

Parties: MARIA PENMAN v. ROBERT KENGETHE

Judge: /s/TIMOTHY F. SULLIVAN

Date: March 29, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

In this eviction case, plaintiff (landlord) seeks possession of the premises from defendant (tenant) for non-payment of rent. Defendant filed a written answer that included defenses and counterclaims, and the court finds as follows: Plaintiff owns 46 Woodland Street, Worcester, wherein defendant resides at Apartment #7 as a tenant-at-will. The rent is $425.00 due the first day of each month. Defendant has paid no rent since October 2006, leaving a total balance of $2,125.00 in unpaid rent due plaintiff, who terminated the tenancy by serving defendant with a legally sufficient notice to quit.

Defendant asserts a defense to possession and counterclaims under G.L. c. 239, s. 8A alleging defective conditions on the premises. Insufficient evidence was presented to prove defective conditions on the premises, and the court finds in favor of plaintiff on said claim.

Defendant claims plaintiff breached his quiet enjoyment of the premises by refusing to return his personal belongings to him that were removed from the premises by plaintiff earlier in the tenancy. G.L. c. 186, s. 14, commonly referred to as the statutory covenant of quiet enjoyment, provides that a landlord who “directly or indirectly interferes with the quiet enjoyment of any residential premises” shall be liable for “actual or consequential damages or three (3) month’s rent, whichever is greater.” Liability is imposed if the landlord’s conduct causes a serious interference with the tenant’s quiet enjoyment of the premises. A serious interference is an act or omission that impairs the character and value of the leased premises. Doe v. New Bedford Housing Authority, 417 Mass. 273, 284-285 (1994); Lowery v.

 

 

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Robinson, 13 Mass. App. Ct. 982 (1982).

The court finds that some time after the inception of the tenancy, plaintiff removed defendant’s personal belongings from the apartment and changed the locks thereof denying defendant access thereto, all without judicial process. The court takes judicial notice of Worcester Housing Court case No. 07-CV-155. On February 26, 2007, after a hearing, the court ordered that Ms. Penman restore Mr. Kengethe to his apartment, and return all his personal belongings forthwith. To date, Mr. Kengethe’s personalty has not been returned as ordered.

The court finds that the credible evidence presented is more that sufficient to prove that plaintiff (Penman) directly and intentionally caused a serious interference with defendants’ quiet enjoyment of the premises in violation of G.L. c. 186, s. 14 by locking defendant (Kengethe) from the premises, and, although he has since been restored to the premises, his personal belongings remain in a locked room, to which he does not have a key. Said personalty has not been returned to him as ordered.

As a result of plaintiffs conduct, defendant suffered a substantial diminution in value of the leased premises, the character of which was seriously impaired as a result of plaintiffs conduct. Accordingly, defendant is entitled to three months rent damages or $1,275.00.

 

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ordered that judgment enter for defendant (Kengethe) for possession pursuant to the fifth (5th) paragraph of G.L. c 239, s. 8A, on the condition that within seven (7) days of his receipt of this order, he deposits with the Clerk of this Court the sum of $850.00 by cash, bank check or money order. If this deposit is made, the Clerk shall immediately release all such funds held by the court to plaintiff (Penman). If the deposit is not made as prescribed, judgment shall automatically enter in favor of plaintiff for possession and damages in the amount of $850.00 through March 2007, plus court costs.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

FRANCISCO TORRES v. AIDA MELGAR AND JOSE RIVERA

 

WORCESTER COUNTY DIVISION

 

Docket # NO. 07-SP-431

Parties: FRANCISCO TORRES v. AIDA MELGAR AND JOSE RIVERA

Judge: /s/TIMOTHY F. SULLIVAN

Date: March 8, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

In this eviction case, plaintiff seeks to recover possession of the premises from defendants for non-payment of rent. Defendants filed a written answer that included defenses and counterclaims, and the court finds as follows: Plaintiff owns a three-family residential dwelling at 198 Stafford Street, Worcester, wherein defendants have resided at Apartment #3 since June 2005. Plaintiff resides in the same house at Apartment #1, and owns no other real estate. The rent is $700.00 due the first day of each month. Plaintiff is responsible for providing heat. Defendants did not pay any rent for January, February or March 2007, leaving a total balance of $2,100.00 due plaintiff, who terminated the tenancy for non-payment of rent.

Defendants asserted defenses and counterclaims under G.L. c. 239, s 8A, claiming the conditions at the premises were defective. There exists with respect to every residential tenancy, an implied warranty that the premises are fit for human habitation. A landlord is in breach of the warranty if defects exist that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the warranty occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the premises.

In October 2006, defendant complained to plaintiff about roaches getting into their food and medicine through a hole at the bottom of the refrigerator supplied by plaintiff as part of the tenancy. A photograph of the refrigerator was presented at trial. (See Defendants’ Exhibit G). Upon his investigation of the complaint, plaintiff detected no problems with the condition of the

refrigerator, and received no complaints about roaches from anyone else residing in the building. The evidence presented proved neither a roach infestation, nor a defective refrigerator. Accordingly, the court finds no merit to the allegation. Nonetheless, plaintiff replaced the refrigerator.

A two-inch gap along the bottom of the apartment door was reported to plaintiff by defendants in September 2006. Soon thereafter, plaintiff arrived at the apartment to repair the door, at which time Mr. Rivera informed him that he had already eliminated the problem by installing carpeting in that area, effectively closing the gap. Plaintiff received no further complaints from defendants about the door.

In January 2007, defendants contacted the board of health to complain about defective conditions in their apartment. After inspection, the health department forwarded a written report to plaintiff on January 9th, citing a number of Sanitary Code violations. (See Defendants’ Exhibits C and D). The violations cited included closet walls in the middle bedroom that do not meet ceilings, lack of walls or ceiling in the food pantry, a rear

bedroom light fixture hanging by a wire, a two-inch gap at the bottom of the apartment door and loose fitting windows causing a cold air draft within the apartment, inoperable smoke detectors, an accumulation of personal property stored in a second-floor front hallway obstructing exits, and a freezer door that would not close tight. Plaintiff first learned about such defective conditions when he received the violation notice from the health department in January 2007, at which time, defendants were already in arrears in their rent. All such defects were repaired before the end of January 2007.

Lead paint exists throughout the premises as well. Plaintiff knew about it at the inception of the tenancy, at which time, defendants had a child residing in the premises whose age was five years and ten months. Defendants had another baby ten months ago. No injury is alleged to have occurred as a result of the existence of lead.

The court finds that such defects, none of which were caused by defendants, constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, supra. The court finds that said conditions did not rise to the level of a breach of quiet enjoyment under G.L. c. 186, s. 14.

The measure of damages for plaintiffs breach is the difference between the fair rental value of the premises free of defects and the fair rental value given the defective condition.

 

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Boston Housing Authority v. Hemingway, supra; Haddad v. Gonzalez, 410 Mass. 855, 872 (1991). The court finds that the fair rental value of the premises free of defects is $700.00. The court finds that the fair rental value of the premises, considering the above-cited defective conditions that existed during the month of January 2007, is $560.00. The fair rental value of the premises from January 2007 totals $1,960.00. During that same period of time, defendants paid no rent to plaintiff.

The court finds that the existence of lead further reduced the fair rental value of the premises by a total amount of $300.00. Accordingly, the balance due plaintiff under Section 8A is $1,660.00.

As to all other counterclaims asserted by defendants, the court finds in favor of plaintiff.

 

ORDER FOR JUDGMENT

 

Based on the credible testimony and evidence presented at trial, it is ordered that judgment enter in favor of defendants for possession pursuant to the fifth (5`h) paragraph of G.L. c 239, s. 8A, provided that, within seven (7) days of their receipt of this order, defendants deposit with the Clerk of this court the sum of $1,660.00 by cash, bank check or money order. If such deposit is made, the Clerk shall immediately release all such funds to plaintiff. If the deposit is not made as prescribed, judgment shall automatically enter in favor of plaintiff for possession and unpaid rent damages in the amount of $1,660.00 through March 2007, plus

court costs.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

DOUGLAS K. RAU v. ALAN GRUMMELL

 

 

WORCESTER COUNTY DIVISION

 

Docket # NO. 07-SP-1212

Parties: DOUGLAS K. RAU v. ALAN GRUMMELL

Judge: /s/TIMOTHY F. SULLIVAN

Date: April 26, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

In this eviction case, plaintiff seeks to recover possession of the premises from defendant for non-payment of rent. No written answer was filed, and the court fords as follows: Plaintiff owns 102 Central Street, Athol, wherein defendant has lived as a tenant-at-will in Apartment #1 since February 1, 2007. The rent is $650.00 due the first day of each. Defendant paid no rent for March or April, leaving a total of $1,300.00 due plaintiff, who terminated the tenancy by serving defendant with a legally sufficient fourteen (14) day notice to quit for non-payment of rent.

 

Defendant asserted a defense to possession under the provisions of G.L. c. 239, s 8A, claiming plaintiff breached the implied warranty of habitability. There exists with respect to every residential tenancy, an implied warranty that the premises are fit for human habitation. A landlord is in breach of the warranty where there exist defects that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the implied warranty of habitability occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the apartment.

 

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Under Section 8A, a tenant is entitled to a defense to possession if the landlord knew or should have known of the conditions before the tenant was in arrears in his rent. If the court finds that the amount of rent due the landlord is greater than the amount due the tenant on his counterclaims and defenses, the landlord is not entitled to recover possession if the tenant pays the balance due the landlord within seven days of the tenant’s receipt of the court’s decision.

In this case, when Mr. Grummell moved into his apartment, there was peeling paint throughout, a defective light fixture, mold in the bathroom, and wiring problems. Although Mr. Grummell testified about trash in the common area, and mice, be offered no evidence to support such allegations. The court finds that all other above-cited defective conditions, none of which were caused by defendant, constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, supra. Plaintiff completed the repairs by April 1, 2007.

The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises free of defects and the fair rental value of the premises during the period that the defective condition existed. Boston

Housing Authority v. Hemingway, supra; Haddad v. Gonzalez, 410 Mass. 855, 872 (1991). The court finds that the fair rental value of the premises free of defects is the contract rent of $650.00. The fair rental value, given the defective conditions, is $500.00.

Since plaintiff should have known of the defective conditions before defendant was first in arrears in his rent, defendant has established a defense to possession under G.L. c. 239, s. 8A. The fair rental value of the premises from February 2007 (taking into account the defects that existed through March) totals $1,650. During that same period of time, defendant paid plaintiff $650.00. Accordingly, the amount due plaintiff under Section 8A is $1,000.00.

 

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ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ordered that judgment enter for defendant/tenant for possession pursuant to the fifth (5th) paragraph of G.L. c 239, s. 8A, on the condition that within seven (7) days of his receipt of this order, defendant deposits with the Clerk of this court the sum of $1,000.00 by cash, bank check or money order. If this deposit is made, the Clerk shall immediately release all such funds held by the court to plaintiff/landlord. If the deposit is not made as prescribed, judgment shall automatically enter in favor of plaintiff for possession and damages in the amount of $1,000.00 through April 2007, plus court costs.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

ADRIANNE BALCOM AND BEN ONTHANK Plaintiffs VS. LUZ RAMOS AND HERBERT R. PINEDA Defendants

 

 

WORCESTER COUNTY DIVISION

 

Docket # SUMMARY PROCESS NO. 07-SP-3414

Parties: ADRIANNE BALCOM AND BEN ONTHANK Plaintiffs VS. LUZ RAMOS AND HERBERT R. PINEDA Defendants

Judge: /s/ TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: October 18, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

In this eviction action, plaintiffs seek possession from defendants for non-payment of rent. Defendants filed a written answer that included affirmative defenses and counterclaims, and the court finds as follows: Plaintiffs own a two-family house at 220 Lincoln Street, Marlboro wherein defendants reside at Apartment #2 subject to a written lease (See Plaintiff’s Trial 1). The rent is $1,200.00 due the first day of each month. Defendants currently owe plaintiff $5,000.00 in unpaid rent dating back to April 2007. Plaintiff terminated the tenancy for non-payment of rent.

Defendants asserted a defense to possession under the provisions of G.L. c. 239, s 8A, claiming plaintiffs breached the implied warranty of habitability. There exists with respect to every residential tenancy, an implied warranty that the premises are fit for human habitation. A landlord is in breach of the warranty where there exist defects that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973).

After plaintiffs commenced eviction proceedings, defendants first complained to

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plaintiffs about a defective kitchen faucet mechanism, a water-stained ceiling tile, and a hole in a wall in the interior common area stairway near the front door to the house. Photographs were presented depicting said conditions. Defendants did not contact the local health department about said conditions. The court finds that said conditions are minor defects, and do not constitute a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, supra.

Defendants also asserted that plaintiffs failed to adequately equip the premises with security locks in violation of G.L. c. 186, s. 14. Said statute, commonly referred to as the statutory covenant of quiet enjoyment, provides that any landlord who “directly or indirectly interferes with the quiet enjoyment of any residential premises” shall be liable for “actual or consequential damages or three (3) month’s rent, whichever is greater. The statute imposes liability where the landlord’s conduct causes a serious interference with tenant’s quiet enjoyment of the premises. A serious interference is an act or omission that impairs the character and value of the leased premises. Doe v. New Bedford Housing Authority, 417 Mass. 273, 284-285 (1994); Lowery v. Robinson, 13 Mass. App. Ct. 982 (1982).

Although the exterior doors to the apartment house are adequately secured, defendants’ apartment doors are not equipped with adequate locks. After defendants took occupancy of the apartment, realizing that none of the doors had proper locks, they purchased and installed a standard locking mechanism on the main entry to their apartment unit. The other doors leading directly from the common area into defendants’ apartment remain equipped with mere “hook & eye” type devices only, which are grossly insufficient to secure the apartment. The court finds that plaintiff’s failure to adequate secure defendants’ apartment has impaired the character and diminished the value thereof, and

constitutes a breach of the implied covenant of quiet enjoyment

entitling defendants to three months rent damages ($3,600.00). G.L. c. 186, s. 14.

As to all other defenses and counter claims asserted in defendants’ written answer, the court was not presented with adequate evidence thereon. Accordingly, plaintiff is entitled to judgment thereon.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ordered that judgment enter in favor of defendants for possession pursuant to the fifth (5th) paragraph of G.L. c 239, s. 8A, on the condition that within seven (7) days of their receipt of this order, defendants deposit with the Clerk of this court the sum of $1,400.00 (unpaid rent minus three months rent due defendants for breach of quiet enjoyment) by bank check or money order made payable to Adrianne Balcom or Ben Onthank. If this deposit is made, the Clerk shall immediately release all such funds held by the court to plaintiffs. If the deposit is not made as prescribed, judgment shall automatically enter in favor of plaintiffs for possession and damages in the amount of $1,400.00 through October 2007, plus court costs.

SO ORDERED:

 

 

 

 

 

End Of Decision

 

HOUSING COURT

JAY GOULD Plaintiff VS. JAMES LONG AND SUSAN LONG Defendants

 

WORCESTER COUNTY DIVISION

 

Docket # SUMMARY PROCESS NO. 07-SP-3686

Parties: JAY GOULD Plaintiff VS. JAMES LONG AND SUSAN LONG Defendants

Judge: /s/ TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: October 15, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

In this eviction case, plaintiff seeks possession from defendants for non-payment of rent. No written answer was filed, and the court finds as follows: Plaintiff owns 2B Forkey Avenue, Worcester, wherein defendants reside as tenants-at-will. The rent is $900.00 due the first day of each month. Defendants paid $600.00 for April rent, $900.00 for May rent, and nothing since, leaving a total balance of $4,800.00 in unpaid rent due plaintiff, who terminated the tenancy on August 21, 2007 by serving a legally sufficient notice to quit for non-payment of rent.

 

Defendants asserted a defense to possession under the provisions of G.L. c. 239, s 8A, claiming plaintiff breached the implied warranty of habitability. There exists with respect to every residential tenancy, an implied warranty that the premises are fit for human habitation. A landlord is in breach of the warranty where there exist defects that may materially affect the

health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the warranty occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the apartment.

 

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Section 8A provides that, where a tenancy has been terminated for non-payment of rent, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy, or occupancy for breach of warranty….” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to a defense to possession only if: (1) the landlord knew or should have known of the conditions before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the conditions; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated. The landlord is not entitled to recover possession of the premises if the court finds that the amount of rent due the landlord equals or is less than the amount due the tenant on his counterclaims and defenses. If the court finds that the amount of rent due the landlord is greater than the amount due the tenant on his counterclaims and defenses, the landlord is not entitled to recover possession provided the tenant pays the balance due the landlord within seven (7) days of the tenant’s receipt of the court’s decision.

In the instant case, defendants complained to the Worcester Health Department during the first week in August 2007 about defective conditions in their apartment. An inspection followed, and the health inspector filed a written report of his findings on August 10, 2007. (See Defendants’ Trial Exhibit A). Plaintiff was first made aware of the defective conditions when he received a copy of said written report, which cites various violations of the State Sanitary Code.

The court finds that the defective conditions cited by the health inspector in the aggregate constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, supra. Defendants did not cause any of the defective conditions. The defective conditions do not rise to the level of a breach of quiet enjoyment under G.L. c. 186, s. 14.

 

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The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises free of defects and the fair rental value of the premises during the period that the defective condition existed. Boston Housing Authority v. Hemingway, supra; Haddad v. Gonzalez, 410 Mass. 855, 872 (1991). The court finds that the fair rental value of the premises free of defects is the contract rent of $900.00, and the fair rental value of the premises given the defective conditions is $800.00.

 

Because plaintiff first learned about the defective conditions in August 2007, after defendants were already behind in their rent, defendants did not establish a defense to possession under G.L. c. 239, s. 8A. The fair rental value of the premises from April 2007 (taking into account the $100.00 per month abatement from August due to defective conditions) totals $6,000.00 through October 2007. During that same period of time, defendants paid plaintiff $1,500.00. Accordingly, the amount due plaintiff in accordance with Section 8A is $4,500.00.

Defendants also claimed that plaintiff is evicting them as a retaliatory measure. A tenant has a defense to the landlord’s claim for possession under G.L. c. 239, s. 2A and a claim for damages under G.L. c. 186, s. 18, if the landlord’s commencement or a summary process action was in retaliation for the tenant’s exercising of his/her legal rights as a tenant. Under Sections 2A and 18, the commencement of a summary process action or the service of a notice of termination within six (6) months of a tenant’s exercising of his/her rights as a tenant creates a rebuttable presumption of retaliation.

In the instant case, defendants sought injunctive relief in Superior Court against plaintiff on August 6, 2007. On August 21, 2007, plaintiff served a notice to quit upon defendants, thus creating a presumption that the eviction was retaliatory.

Plaintiff, however, produced clear and convincing evidence to rebut the presumption.

 

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clear and convincing evidence consisted of defendant’s rent arrearage that began to accumulate in April 2007. The court finds that plaintiff commenced the eviction action against defendant solely because of defendant’s failure to pay rent, and that plaintiff would not have commenced the eviction action if defendants had paid their rent when due. The court finds that plaintiff did not engage in any acts of reprisal against defendant pursuant to G.L. c. 239, s. 2A or c. 186, s. 18.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial and the reasonable inferences drawn therefrom, in light of the governing law, it is hereby ordered that judgment enter in favor of plaintiff for possession and unpaid rent damages of $4,500.00 through October 2007, plus court costs.

 

 

 

 

End Of Decision

 

HOUSING COURT

SUSAN M. INFERRERA Plaintiff VS. KEITH AND MARLOE SWANSON Defendants

 

WORCESTER COUNTY DIVISION

 

Docket # SUMMARY PROCESS NO. 07-SP-2507

Parties: SUSAN M. INFERRERA Plaintiff VS. KEITH AND MARLOE SWANSON Defendants

 

Judge: /s/ TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: August 21, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

In this eviction case, plaintiff seeks possession of the premises from defendants for cause. Defendants filed a written answer that included affirmative defenses and counterclaims arising from the tenancy. The court finds as follows: Plaintiff owns 36 Linden Street, Winchendon, wherein defendants reside at Apartment #1 as tenants-at-will. The rent is $850.00 due the first day of each month. Defendants paid $800.00 toward May rent, and nothing since, leaving a balance of unpaid rent due plaintiff, who terminated the tenancy by serving a legally sufficient notice to quit upon defendants.

Defendants asserted a defense to possession under G.L. c. 239, s 8A, claiming the conditions of the premises are defective. There exists with respect to every residential tenancy, an implied warranty that the premises are fit for human habitation. A landlord is in breach of the warranty where there exist defects that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the warranty occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the apartment.

Ms. Swenson did not appear for trial. Her husband, Keith Swenson appeared on her behalf, and testified that they experienced heating trouble in the apartment since March. An inspection by the Winchendon Health Department on April 25`h revealed that the temperature in

 

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the apartment was 66 degrees at 4:00 p.m. in violation of the State Sanitary Code. On May 1, 2007, plaintiff was ordered to correct the violation within seven days. The court was presented with no evidence suggesting that plaintiff failed to comply with said order. Plaintiff testified that defendants opened a number of windows in the apartment immediately prior to the health department inspection, thus artificially reducing the temperature in the apartment. The Court finds plaintiff’s testimony to be credible.

The court finds that the insufficient heat in the premises was caused by defendants. Accordingly, plaintiff is not in breach of the implied warranty of habitability, and defendants are not entitled to either a defense to possession or a rent abatement due to the insufficient heat.

Defendants also asserted a defense to plaintiff’s claim for possession under G.L. c. 239, s. 2A and a claim for damages under G.L. c. 186, s. 18. They assert that plaintiff’s termination of the tenancy is in retaliation for defendants’ reporting the insufficient heat violation to the health department. Under Sections 2A and 18, the commencement of a summary process action or

the service of a notice of termination within six (6) months of a tenant’s action of reporting to a health or building department, or complaining of such violation or suspected violation in writing to the landlord, creates a rebuttable presumption of retaliation.

The court finds that defendants notified the health department about the heat problems in April, and that plaintiff terminated the tenancy on May 1St, which is within six (6) months of tenant’s complaint, creating a presumption that the eviction was retaliatory. Plaintiff, however, produced clear and convincing evidence to rebut the presumption. That clear and convincing evidence consisted of plaintiff having valid independent cause to terminate the tenancy. Since early winter 2007, defendants have been unreasonably disruptive to plaintiff. Their vehicle has been continuously parked so as to knowingly and unreasonably interfere with plaintiff’s access to the garage, after being asked numerous times by plaintiff not to do so. In addition, Mr. Swenson has caused damage to the premises, and has carried himself in a highly disrespectful and threatening manner toward plaintiff and plaintiff’s guests. The court finds that defendants’ behavior toward plaintiff has been intolerably disruptive and beyond the pale of common

 

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decency. Defendants’ unreasonable conduct has constituted a nuisance the gravity of which no landlord should be made to endure. The court finds that plaintiff would have commenced this summary process action regardless of whether defendants exercised their rights as tenants to complain to the health department. The court finds that plaintiff commenced the eviction action against defendants solely because of the substantial nuisance and consistently disruptive behavior of defendants, and that plaintiff did not engage in any acts of reprisal against defendant pursuant to G.L. c. 239, s. 2A or c. 186, s. 18.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ordered that judgment enter for plaintiff (landlord) for possession and unpaid rent damages in the amount of $2,600.00 through August 2007, plus court costs.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

ROY NILSON Plaintiff VS. HEATHER PEARCE Defendant

 

WORCESTER COUNTY DIVISION

 

Docket # SUMMARY PROCESS NO. 07-SP-2228

Parties: ROY NILSON Plaintiff VS. HEATHER PEARCE Defendant

Judge: /s/ TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: August 21, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

In this eviction case, plaintiff seeks to recover possession of the premises from defendant for non-payment of rent. No written answer was filed, and the court finds as follows: Plaintiff owns the premises located at 19 Common Street, Petersham, wherein defendant resides as a tenant-at- will. The rent is $750.00 due the first day of each month. Defendant has paid no rent for June or July, and plaintiff terminated the tenancy on June 7, 2007 by serving defendant with a legally sufficient fourteen (14) day notice to quit for non-payment of rent.

Defendant testified that she stopped paying her rent because of defective conditions in the premises. There exists with respect to every residential tenancy, an implied warranty that the premises are fit for human habitation. A landlord is in breach of the warranty where there exist defects that may materially affect the

health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the implied warranty of habitability occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the premises.

In the winter of 2007, defendant’s furnace shut down, leading to freezing and bursting pipes in the premises, all of which were repaired The Court finds that the furnace malfunction was caused by the lack of heating fuel, which defendant had been responsible for since the inception of the tenancy. The Court finds that defendant’s neglect caused the furnace

 

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malfunction, and that plaintiff did not breach the implied warranty.

In March 2007, defendant reported water pressure problems to plaintiff, who immediately replaced the troubled faucet. A week later, plaintiff detected an obstruction in the plumbing at the premises, and replaced a shut-off valve, removing the obstruction. The Court finds that the water pressure problem constituted an insignificant problem at best, and that defendant is not entitled to a rent abatement.

In April 2007, defendant complained to plaintiff about the lack of hot water. Plaintiff replaced the hot water heater in April. He made attempts to further inspect the hot water system in May 2007, after repeated unsubstantiated complaints from defendant about the lack of hot water. Despite plaintiff’s efforts to address defendant’s concern, defendant refuses to let him into the premises for purposes of inspection. The evidence presented was insufficient to support defendant’s claim about the lack of hot water. Accordingly, plaintiff is entitled to judgment thereon.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ordered that judgment enter for plaintiff (landlord) for possession and unpaid rent damages in the amount of $2,250.00 through August 2007, plus court costs.

Plaintiff is ordered to immediately return to defendant the $500.00 security deposit paid by defendant, together with 5% interest thereon from February 2006.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

PATRICK AND PAMELA HANNULA Plaintiffs VS. KIMBERLY FAGAN, Defendant

 

WORCESTER COUNTY DIVISION

 

Docket # SUMMARY PROCESS NO. 07-SP-2368

Parties: PATRICK AND PAMELA HANNULA Plaintiffs VS. KIMBERLY FAGAN, Defendant

Judge: /s/ TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: August 9, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

In this eviction case, plaintiffs established a prima facie case for possession and unpaid rent in the amount of $3,650.00 through August 2007. Defendant claims her apartment is in poor condition. She called the local health department in March, and an inspection revealed various defects within the premises. (See Defendant’s Trial Exhibit A). Plaintiff corrected most of the defects within a week of receiving the violation notice from the health department. Presently, a bathroom vent and light bulb need repair, and an automatic entry lock system needs to be installed. The Court finds that the defective conditions cited by the health

department existed at the inception of the tenancy (August 1, 2006), and constituted a breach of the implied warranty of habitability. Accordingly, defendant is entitled to a rent abatement in the amount of $845.00 ($65.00 per month from August 2006) leaving a total balance of $2,805.00 due plaintiffs through August, 2007.

In accordance with G.L. c. 239, s. 8A, it is ordered that judgment enter in favor of defendant (tenant) for possession, on the condition that within seven (7) days of her receipt of this order, defendant deposits with the Clerk of this Court the sum of $2,805.00 by bank check or

 

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money order made payable to PATRICK OR PAMELA HANNULA. If this deposit is made, the Clerk shall immediately release all such funds to plaintiff. If the deposit is not made as prescribed, judgment shall automatically enter in favor of plaintiff for possession and damages in the amount of $2,805.00 through August 2007, plus court costs.

SO ORDERED

 

 

 

DATE MAILED: 08-10-2007

DATE PRESUMED RECEIPT: 08-14-2007

DATE DUE: 08-21-2007

 

 

 

End Of Decision

 

HOUSING COURT

RICHARD QUAYE Plaintiff VS. MICHELLE BUIWIT AND ADAM VERDONE Defendants

 

WORCESTER COUNTY DIVISION

 

Docket # SUMMARY PROCESS NO. 07-SP-2553

Parties: RICHARD QUAYE Plaintiff VS. MICHELLE BUIWIT AND ADAM VERDONE Defendants

Judge: /s/ TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: August 3, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

In this eviction case, plaintiff seeks possession of the premises from defendants for non-payment of rent. Defendants filed a written answer that included affirmative defenses and counterclaims arising from the tenancy, and the court finds as follows: Plaintiff (landlord) owns 143 Mechanic Street, Gardner, wherein defendants (tenants) reside at Apartment #2 as tenants-at-will. The rent is $850.00 due the first day of each month. Tenants have not paid any rent since March, leaving a total balance of $3,400.00 due plaintiff, who terminated the tenancy by delivering a legally sufficient fourteen (14) day notice to quit to tenants.

Tenants asserted a defense to possession under the provisions of G.L. c. 239, s 8A, claiming plaintiff breached the implied warranty of habitability. There exists with respect to every residential tenancy, an implied warranty that the premises are fit for human habitation. A landlord is in breach of the warranty if defects exist that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the warranty occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the apartment. A tenant is not entitled to a defense to possession if the landlord first learned about the defective conditions after the tenant was already behind in the rent.

In this case, part of the ceiling in a bedroom occupied by tenants’ minor daughter

 

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collapsed on April 20′ (after tenants were behind in the rent) rendering the room uninhabitable until landlord completed the repairs on July 4`h. Throughout May and June, the minor child slept in the living room at night.

The court finds that the defective condition cited, which tenants did not cause, constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, supra. The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises free of defects and the fair rental value of the premises during the period that the defective condition existed. Boston Housing Authority v. Hemingway, supra; Haddad v. Gonzalez, 410 Mass. 855, 872 (1991). The court finds that the fair rental value of the premises free of defects is the contract rent of $850.00, and the fair rental value given the defective ceiling is $425.00.

Since landlord did not know about the defect until after

tenants were already behind in their rent, tenants did not established a defense to possession under G.L. c. 239, s. 8A. The fair rental value of the premises from April 1, 2007 (taking into account the rent reduction during the period of time that the defective ceiling existed) totals $2,550.00. During that same period of time no rent was paid to landlord. Accordingly, the amount due landlord is $2,550.00.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ordered that judgment enter for plaintiff/landlord for possession and unpaid rent in the amount of $2,550.00 through July 2007, plus court costs.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

FRUIT SEVER ASSOCIATES VS. EUKLID SHOMO AND MARIA SHOMO

 

WORCESTER DIVISION

 

Docket # SUMMARY PROCESS NO. 07-SP-2156

Parties: FRUIT SEVER ASSOCIATES VS. EUKLID SHOMO AND MARIA SHOMO

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: July 23, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

In this eviction case, plaintiff seeks possession of the premises from defendants for material non-compliance with the terms their lease. Defendants filed a written answer, and the court finds as follows: Plaintiff owns a multi-family residential development at 11 Sever Street, Worcester wherein defendants reside at Apartment #508 subject to the terms of a written lease. (See Plaintiff’s Trial Exhibit 1). Paragraph 23 (c)(6) of said lease provides in relevant part that the landlord may terminate the lease for criminal activity by a tenant or any member of the tenant’s household,

 

” …that threatens the health, safety or right to peaceful enjoyment of the premises by other residents (including property management staff residing on the premises); or that threatens the health, safety or right to peaceful enjoyment of their residences by persons residing in the immediate vicinity….”

 

Further, pursuant to paragraph 23 (c)(10) of said lease, landlord may terminate the tenancy,

 

“if the landlord determines that the tenant…engaged in the criminal activity, regardless of whether the tenant …has been arrested or convicted for such activity.”

 

Plaintiff claims that defendant Euklid Shomo has engaged in criminal conduct in violation of paragraph 23 (c)(10) by consistently harassing other tenants, actions which plaintiff also claims constitutes a breach of quiet enjoyment in violation of paragraph 23 (c)(6) of said lease.

On February 26, 2007, Mr. Shomo watched and waited all day for a neighboring resident

 

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to return home. Around 3:30 p.m., the neighbor returned to his

home, and was assaulted by Mr. Shomo, who accused the neighbor of having a sexual relationship with Shomo’s elderly mother and aunt. After a brief struggle, which resulted in minor injuries, the police arrived at the premises and quelled the disturbance. (See Plaintiff’s Trial Exhibit 3, and Defendant’s Trial Exhibit L).

Mr. Shomo admitted to plaintiff’s claim that he breached the peaceful enjoyment of the premises (See Plaintiff’s Trial Exhibit 4) offering as an excuse that, among other things, his mother has been raped by eighteen residents and former residents.

Plaintiff claims that further disturbances are caused by Maria Shomo, who bangs a stick against her apartment ceilings and walls upsetting her neighbors. Mr. Shomo acknowledged in his written answer filed with the court on June 25, 2007 that plaintiffs claim is accurate. He asserts that Mrs. Shomo is forced to bang on the walls when neighbors make too much noise.

The court finds defendants to be in substantial and material non-compliance with Paragraph 23 (c)(6) and Paragraph 23 (c)(10) of their lease agreement. Accordingly, plaintiff is entitled to judgment. As to all counterclaims asserted in defendants’ answer, the court finds a lack of credibility, entitling plaintiff to judgment on all such claims.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ordered that judgment enter in favor of plaintiff for possession.

 

 

 

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End Of Decision

 

HOUSING COURT

LEONER RAMIREZ VS. CRYSTAL SANTOS

 

WORCESTER DIVISION

 

Docket # SUMMARY PROCESS NO. 07-SP-2482

Parties: LEONER RAMIREZ VS. CRYSTAL SANTOS

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: July 19, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

In this eviction case, plaintiff seeks possession of the premises from defendant for non-payment of rent. Defendant filed a written answer that included defenses and counterclaims, and the court finds as follows: Plaintiff owns 17 Hillside Street, Worcester, wherein defendant lives in the second-floor apartment subject to a written lease. The rent is $800.00 due the first day of each month. Defendant paid no rent for April, May, June or July, leaving a total balance of $3,200.00 due plaintiff, who terminated

the tenancy for non-payment of rent.

Defendant testified that conditions at the premises are defective. There exists with respect to every residential tenancy, an implied warranty that the premises are fit for human habitation. A landlord is in breach of the warranty if defects exist that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the warranty occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the premises.

Since February 2007, plaintiff has known about a broken handle on defendant’s bathroom faucet, two malfunctioning burners on her kitchen stove, and mice in the building. The court finds that such defects, none of which were caused by defendant, constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, supra. Said conditions did not constitute a breach of quiet enjoyment under G.L. c. 186, s. 14. Because plaintiff learned about the defective conditions before defendant was in arrears in her rent, defendant has established a defense to possession. G.L. c. 239, s. 8A.

 

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The measure of damages for plaintiff’s breach of the implied warranty of habitability is the difference between the fair rental value of the premises free of defects and the fair rental value given the defective conditions. Boston Housing Authority v. Hemingway, supra; Haddad v. Gonzalez, 410 Mass. 855, 872 (1991). The court finds that the fair rental value of the premises free of defects is $800.00. The fair rental value given the defective conditions that existed since February is $680.00. The fair rental value of the premises from February 2007 totals $4,080.00. During that same period of time, defendant paid plaintiff $1,600.00 in rent. Accordingly, the remaining balance of unpaid rent due plaintiff is $2,480.00.

Defendant testified that plaintiff interrupted her electrical service by shutting off the circuit breaker, which the electric company switched back on. No evidence was presented to support defendant’s claim, which plaintiff denied. Accordingly the court finds for plaintiff.

As to all other defenses and counterclaims asserted in defendant’s written answer, the court finds in favor of plaintiff, as no evidence was presented at trial relative thereto.

 

ORDER FOR JUDGMENT

 

Based on the credible testimony and evidence presented at trial, it is ordered that judgment enter in favor of defendant for possession pursuant to the fifth (5th) paragraph of G.L. c 239, s. 8A, provided that, within seven (7) days of her receipt of this order, defendant deposits with the Clerk of this court a bank check or money order made payable to plaintiff in the amount of $2,480.00. If such deposit is made, the Clerk shall immediately release such funds to plaintiff. If the deposit is not made as

prescribed, judgment shall automatically enter in favor of plaintiff for possession and unpaid rent damages of $2,480.00 through July 2007, plus court costs.

 

 

 

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End Of Decision

 

HOUSING COURT

BRIAN LUCIER VS. DAVID PELOQUIN AND HOLLY HANKS

 

WORCESTER DIVISION

 

Docket # SUMMARY PROCESS NO. 07-SP-2241

Parties: BRIAN LUCIER VS. DAVID PELOQUIN AND HOLLY HANKS

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: July 18, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

In this eviction case, plaintiff seeks to recover possession of the premises for non-payment of rent. Defendants did not file a written answer, and the Court finds as follows: Plaintiff owns an apartment house at 180 West Broadway in Gardner, wherein defendants reside at Apartment #3 subject to a written lease agreement. (See Plaintiff’s Trial Exhibit 1). The rent is $600.00 due the first day of each month. Defendants paid a last month’s rent deposit to plaintiff in the amount of $480.00. Defendants did not pay plaintiff any rent for the months of June or July, leaving a total balance of $1,200.00 due plaintiff, who terminated the tenancy on June 7, 2007 by serving defendants with a legally sufficient notice to quit. Defendants have not vacated the premises.

Defendants testified that their washing machine and clothes dryer were destroyed when the basement flooded. The Court finds that on April 17, 2007, heavy rains caused ground water to seep into the basement at the premises. None of the affected area constituted living space, as the basement is primarily used as a laundry room. Contributing to the water problem in the basement was a malfunctioning sump pump. After being notified about the matter, plaintiff

 

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responded immediately, employing all reasonable measures to adequately address the problems, including the immediate replacement of the defective sump pump. Due to plaintiff’s immediate action and continued diligence throughout, all problems associated with the basement flooding were eliminated within a day or two. The Court finds no breach of the implied warranty of habitability.

If defendants choose to pursue a claim for alleged damage to their washer and dryer, the Small Claims Division of the Housing Court will hear the case if properly brought by defendants. As to the underlying eviction case, defendants did not present an adequate defense to plaintiff’s claim for possession and unpaid rent. Accordingly, plaintiff is entitled to judgment.

 

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented, and the reasonable inferences drawn therefrom, in accordance with the governing law, it is ordered that judgment enter for plaintiff (landlord) for possession and rent damages in the amount of $1,200.00 through July 2007, plus court costs.

 

 

 

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End Of Decision

 

HOUSING COURT

ESTATE OF MARY A. DAY VS. TRACY A. DAY

 

WORCESTER DIVISION

 

Docket # SUMMARY PROCESS NO. 07-SP-2840

Parties: ESTATE OF MARY A. DAY VS. TRACY A. DAY

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: September 24, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

In this summary process action, plaintiff seeks possession of the premises from defendant upon the termination of a tenancy at will. Defendant filed a written answer that included affirmative defenses and counterclaims, and the court finds as follows: Plaintiff owns a single-family house located at 59 Wheelock Avenue, Millbury, wherein defendant has resided as a tenant-at-will for approximately three years. The rent is $500.00 due the first day of each month. On June 28, 2007, plaintiff served defendant with a legally sufficient thirty (30) day notice to Quit. Defendant has paid no rent for August or September, leaving a total balance of $1,000.00 due plaintiff through September 2007.

Defendant testified that the conditions of the premises are defective and in violation of G.L. c. 239, s. 8A. Specifically, she said the bulkhead door was defective and one of the burners on the stove has not worked for the last few months. The court finds that neither of the defects cited by defendant rises to the level of a breach of the implied warranty of habitability.

Defendant also asserted that she has been paying for heat and electrical services for the last three years, although there is no written agreement obligating her to do so. No evidence was

 

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produced at trial tending to show the amount of money defendant expended for such utilities since the inception of her tenancy. The court finds that, although plaintiff did not engage in unfair or deceptive conduct, defendant’s payment for such utilities without a written agreement obligating her to do so is a technical violation of G.L. c. 93A. Accordingly, the court shall award defendant the minimum statutory damages of $25.00 plus a reasonable attorney fee, which the court finds to be $100.00.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is Ordered that judgment enter in favor of defendant for possession pursuant to the fifth (5`h) paragraph of G.L. c 239, s. 8A, on the condition that within seven (7) days of her receipt of this ORDER, defendant deposits with the Clerk of this Court the sum of $975.00 (unpaid rent for August and September minus $25.00 statutory damages under G.L. 93A) by bank check or money order made payable to the Estate of Mary A. Day. If this deposit is made, the Clerk shall immediately release all such funds held by the court to plaintiff. If the deposit i.s not made as prescribed, judgment shall automatically enter in favor

of plaintiff for possession and damages in the amount of $975.00 through September 2007, plus court costs. Plaintiff is ordered to pay a fee of $100.00 directly to defendant’s attorney pursuant to G.L. c. 93A.

 

 

 

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End Of Decision

 

HOUSING COURT

RICHARD P. AUDETTE and DEBRA A. RUX VS. ARK C. ZUIDEMA

 

WORCESTER DIVISION

 

Docket # SUMMARY PROCESS NO. 07-SP-2979

Parties: RICHARD P. AUDETTE and DEBRA A. RUX VS. ARK C. ZUIDEMA

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: September 19, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

In this is eviction case, plaintiff seeks possession from defendant for non-payment of rent. Defendant filed a written answer that included an affirmative defense and counterclaims arising from the tenancy, and the court finds as follows: Plaintiff is the owner occupant of 34 Dresser Street, Webster, wherein defendant resides at the second-floor apartment subject to a written tenancy agreement dated May 1, 2005. The monthly rent was $500.00, but was reduced by plaintiff around July 2006, when plaintiff and defendant began to renovate defendant’s apartment together. The plan was to expand the bathroom, add a laundry area, and modify the kitchen area of the apartment. The current rent remains $200.00 per month due the first day of each month. The renovation work is not

complete. When renovations began, defendant was given unlimited access to plaintiffs apartment for use of the kitchen and bathroom facilities whenever desired. Defendant was also offered alternate hotel accommodations at plaintiffs expense, but opted to stay in his apartment.

Defendant has not paid any rent in 2007, and owes $150.00 for December 2006, leaving a total of $1,950.00 in unpaid rent due plaintiff, who terminated the tenancy.

Defendant asserted a defense to possession under the provisions of G.L. c. 239, s 8A, claiming plaintiff breached the implied warranty of habitability. Defendant complained to the Webster Health Department about defective conditions in the premises, resulting in a written

 

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inspection report to plaintiff dated July 24, 2007 citing a number of Sanitary Code violations. (See Defendant’s Trial Exhibit A).

The court finds that the defects cited in said written inspection report, none of which were caused by defendant, in the aggregate constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). Said conditions do not constitute a breach of quiet enjoyment under G.L. c. 186, s. 14.

The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises free of defects and the fair rental value of the premises during the period that the defective condition existed. Boston Housing Authority, v. Hemingway, supra; Haddad v. Gonzalez, 410 Mass. 855, 872 (1991). The court finds that the fair rental value of the premises free of defects is the initial contract rent of $500.00. The court finds that the fair rental value of the premises given the defective conditions to be $200.00.

Since plaintiff knew about the defective conditions since early August 2006, (before defendant was first in arrears in his rent), defendant has established his defense to possession under G.L. c. 239, s. 8A. The fair rental value of the premises from August 2006, when the renovation work began (taking into account the abatement during that period of time that the defective conditions existed) totals $2,800.00. During that same period, defendant paid plaintiff $850.00. The balance due plaintiff in accordance with Section 8A is $1,950.00.

Defendant also claims that he is being evicted in retaliation for exercising his rights as a tenant. A tenant has a defense to the landlord’s claim for possession under G.L. c. 239, s. 2A and a claim for damages under G.L. c. 186, s. 18, if the landlord’s commencement or a summary process action or his service upon the tenant of a notice of termination upon which the action is based, was in retaliation for, among other things, the tenant’s reporting a violation or suspected violation of law to a health or building department, or reporting a violation or suspected violation of law in writing to the landlord as provided in G.L. c. 186, s. 18. Under Sections 2A and 18, the commencement of a summary process action or the service of a notice of termination within six (6) months of a

tenant’s action of reporting to a health or building department, or complaining of

 

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such violation or suspected violation in writing to the landlord, creates a rebuttable presumption of retaliation.

In the instant case, plaintiff produced clear and convincing evidence to rebut any presumption that the eviction is retaliatory. That clear and convincing evidence consisted of plaintiff having no knowledge that defendant may have began withholding rent, and no knowledge that defendant even contemplated complaining to the health or building department about conditions in the apartment. Plaintiff served a notice to quit on July 18, 2007, before defendant contacted the health department. The court finds that plaintiff commenced the eviction action against defendant solely because defendant failed to pay rent, and that plaintiff did not engage in any acts of reprisal against defendant pursuant to G.L. c. 239, s. 2A or c. 186, s. 18.

The court finds that plaintiff is not subject to the provisions of G.L. 93A, and that plaintiff’s conduct was neither unfair nor deceptive. The court finds that defendant suffered no distress, nor did he suffer any mental or physical symptoms of distress, as a result of plaintiff’s conduct.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial and the reasonable inferences drawn therefrom, in light of the governing law, it is ordered that judgment enter for defendant (tenant) for possession pursuant to the fifth (5`h) paragraph of G.L. c 239, s. 8A, on the condition that within seven (7) days of his receipt of this order, defendant deposits with the Clerk of this Court the sum of $1,950.00 by bank check or money order made payable to RICHARD P. AUDETTE OR DEBRA A. RUX. If this deposit is made, the Clerk shall immediately release all such funds held by the court to plaintiff (landlord). If the deposit is not made as prescribed, judgment shall automatically enter in favor of plaintiff for possession and damages in the amount of $1,950.00 through September 2007, plus court costs.

 

 

 

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End Of Decision

 

HOUSING COURT

WALTER MURRAY VS. RAE E. GANGNON

 

WORCESTER DIVISION

 

Docket # SUMMARY PROCESS NO. 07-SP-2787

Parties: WALTER MURRAY VS. RAE E. GANGNON

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: September 4, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

This is a summary process action in which plaintiff is seeking to recover possession of the premises from defendant for cause. Defendant did not file a written answer, and the Court finds as follows: Plaintiff owns a multi-family house at 139 Main Street, Gardner, wherein defendant resides as a tenant-at-will at Apartment #2. On April 16, 2007, plaintiff terminated the tenancy by serving defendant with a legally sufficient notice to quit, alleging that defendant disturbed the quiet enjoyment of other tenants in the building.

On March 10, 2007, defendant hosted a birthday party at her apartment, which continued into the early morning hours of March

11`h. Gardner police respond to noise complaints at the premises at 3:57 a.m., 4:43 a.m. and 6:53 a.m. on March The first two complaints resulted in assurances from defendant that she would quiet everyone down. The loud noises emanating from her apartment continued to disturb other tenants, and upon the third complaint, defendant was arrested for disturbing the peace. She pleased guilty in Gardner District Court. The Court finds that defendant’s conduct constituted a breach of the implied covenant of quiet enjoyment and plaintiff is entitled to judgment.

 

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Defendant sought to raise defenses to possession and counterclaims against plaintiff citing defective conditions in her apartment. The Court did not consider such claims as this case involves a cause eviction. It was suggested that, should defendant choose to bring such claims against plaintiff, she do so by filing a separate civil action.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ordered that judgment enter for plaintiff for possession.

 

 

 

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End Of Decision

 

HOUSING COURT

VALERY AND IELENA LEVITSKY VS. TRACY ANCTIL

 

WORCESTER DIVISION

 

Docket # SUMMARY PROCESS NO. 07-SP-2880

Parties: VALERY AND IELENA LEVITSKY VS. TRACY ANCTIL

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: August 31, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

In this eviction case, plaintiffs seek possession of the premises from defendant for non-payment of rent. Defendant filed a written answer that included defenses and counterclaims, and the court finds as follows: Plaintiffs (landlords) own 54 Green Avenue, Southbridge, wherein defendant (tenant) resides subject to a written tenancy agreement. The rent is $850.00 due the first day of each month. Tenant owes a balance of $540.00 for May rent, and has paid no rent for June, July or August, leaving a total balance of $3090.00 due landlords, who terminated the tenancy on June 30, 2007 by serving tenant with a legally sufficient notice to quit.

Tenant testified that she is living in substandard conditions, and complained to town officials in June. The court finds that by the time she first complained to her landlord or to the town about defective conditions in the apartment, (June 2007) tenant was already in arrears in her rent. Accordingly, defendant has not established a defense to possession. The court finds that the defective conditions of the apartment as cited by the health department inspection on June 7″‘ (See Defendant’s Trial Exhibit A)

in the aggregate constituted a breach of the implied warranty of habitability entitling tenant to a rental abatement in the amount of $255.00 per month dating back to June when landlord first learned about said defects.

 

ORDER FOR JUDGMENT

 

Based on all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, in light of the governing law it is ordered that judgment enter for

 

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plaintiff (landlord) for possession and unpaid rent damages of $2,325.00 through August 2007, plus court costs.

 

 

 

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End Of Decision

 

HOUSING COURT

ATHENS MALMQUIST VS. JOHN RUPOLO

 

WORCESTER DIVISION

 

Docket # SUMMARY PROCESS NO. 07-SP-2615

Parties: ATHENS MALMQUIST VS. JOHN RUPOLO

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: August 27, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

In this eviction case, plaintiff seeks possession of the premises from defendant after termination of his tenancy. Defendant filed a written answer that included affirmative defenses to possession and counterclaims arising from the tenancy. The Court finds as follows: Plaintiff owns 175 St. Nicholas Avenue, Worcester, wherein defendant has resided as a tenant at will since June 2003. The monthly rent is $660.00 due the first day of each month. Defendant has not paid any rent to plaintiff since June 2007, leaving a total balance of $1,980.00 in unpaid rent due plaintiff, who terminated the tenancy by serving defendant with a legally sufficient notice to quit on June 1, 2007.

 

Defendant asserted a defense to possession under the provisions of G.L. c. 239, s 8A, claiming that the conditions in the premises are defective. There exists with respect to every residential tenancy, an implied warranty that the premises are fit for human habitation. A landlord is in breach of the warranty where there exist defects that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the implied warranty of habitability occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the apartment.

 

Section 8A provides that, where a defense or counterclaim is

based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to a defense to possession only if: (1) the landlord knew or should have known of the conditions before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the conditions; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated. The landlord is not entitled to recover possession of the premises if the court finds that the amount of rent due the landlord equals or is less than the amount due the tenant on his counterclaims and defenses. If the court finds that the amount of rent due the landlord is greater than the amount due the tenant on his counterclaims and defenses, the landlord is not entitled to recover possession provided the tenant pays the balance due the landlord within

 

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seven (7) days of the tenant’s receipt of the court’s decision.

 

In the instant case, defendant complained to the Worcester Health Department on May 29, 2007 about defective conditions in the premises. An inspection was conducted on May 30`h revealing numerous violations of the State Sanitary Code. (See Defendant’s Trial Exhibit A). Plaintiff first learned about said conditions on June 1″. The court finds that the defective conditions cited in said inspection report in the aggregate constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, supra. Defendant did not cause any of the defective conditions.

 

The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises free of defects and the fair rental value of the premises during the period that the defective condition existed. Boston Housing Authority v. Hemingway, supra; Haddad v. Gonzalez, 410 Mass. 855, 872 (1991). The court finds that the fair rental value of the premises free of defects is the contract rent of $660.00. The fair rental value of the premises given the defective conditions cited in said report is $330.00. All defective conditions cited were repaired by the end of June 2007.

 

Plaintiff learned about the defective conditions on June 1st, before defendant was first in arrears in his rent. Therefore, defendant has established his defense to possession under G.L. c. 239, s. 8A. The fair rental value of the premises from June 1, 2007 (taking into account the $330.00 rent abatement for the defective conditions that existed for the month of June) totals $1,650.00. During that same period of time, defendant paid plaintiff no rent. Accordingly, the amount due plaintiff in pursuant to Section 8A is $1,650.00.

 

Defendant also asserted a defense and counterclaim for retaliation. A tenant has a defense to the landlord’s claim for possession under G.L. c. 239, s. 2A and a claim for damages under

G.L. c. 186, s. 18, if the landlord’s commencement or a summary process action or his service upon the tenant of a notice of termination upon which the action is based, was in retaliation for, among other things, the tenant’s reporting a violation or suspected violation of law to a health or building department, or reporting a violation or suspected violation of law in writing to the landlord as provided in G.L. c. 186, s. 18. Under Sections 2A and 18, the commencement of a summary process action or the service of a notice of termination within six (6) months of a tenant’s action of reporting to a health or building department, or complaining of such violation or suspected violation in writing to the landlord, creates a rebuttable presumption of retaliation.

 

In the instant case, defendant reported the defective conditions to the health department on May 30, 2007, and was served with a notice to quit on June 1st, establishing a rebuttable presumption that the eviction was retaliatory. Plaintiff, however, produced clear and convincing evidence to rebut the presumption. That clear and convincing evidence consisted of plaintiff having no knowledge of defendant’s complaint to the health department until after the notice to quit had been prepared and sent to defendant. Plaintiff had no knowledge that defendant even contemplated such a report to the health department. Plaintiff had already commenced this eviction action prior to learning about defendant’s complaint to the health department. By the

 

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time defendant complained to the health department, plaintiff had already prepared the notice to quit and delivered it to the county sheriff’s department for service upon defendant. Further, defendant has a long history of failing to pay rent in a timely manner. Over a period of several months, he has consistently defaulted on his obligation to make timely rent payments.

 

The court finds that plaintiff commenced the eviction action against defendant for reasons independent of defendant’s complaint to the health department, and that plaintiff did not engage in any acts of reprisal against defendant pursuant to G.L. c. 239, s. 2A or c. 186, s. 18.

 

As to all other defenses or counterclaims that may have been included in defendant’s written answer, the court was not presented with adequate evidence tending to prove such claims. Accordingly, plaintiff is entitled to judgment thereon.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that judgment enter in favor of defendant for possession pursuant to the fifth (5`h) paragraph of G.L. c 239, s. 8A, on the condition that within seven (7) days of his receipt of this order, defendant deposits with the Clerk of this Court the sum of $1,650.00 by bank check or

money order made payable to ATHENS MALMQUIST. If this deposit is made, the Clerk shall immediately release all such funds held by the court to plaintiff. If the deposit is not made as prescribed, judgment shall automatically enter in favor of plaintiff for possession and damages in the amount of $1,650.00 through August 2007, plus court costs.

 

 

 

 

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End Of Decision

 

HOUSING COURT

ROBERT S. LEWIS and BEVERLY LEWIS VS. SIMEON GRAY

 

BOSTON DIVISION

 

 

Docket # SUMMARY PROCESS NO. 07H84SP005179

 

Parties: ROBERT S. LEWIS and BEVERLY LEWIS VS. SIMEON GRAY

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: January 3, 2008

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

In this eviction case, plaintiffs (landlords) seek possession from defendant for non-payment of rent. Defendant filed a written answer including defenses and counterclaims, and the Court finds as follows: Plaintiffs own 580 River Street, Mattapan, wherein defendant resides as a tenant-at-will. The rent is $800.00 due the first day of each month. Defendant has paid no rent to plaintiffs since September, leaving a total of $3,200.00 due plaintiffs through January 2008. Plaintiffs terminated the tenancy by serving a notice to quit upon defendant on October 10, 2007. Defendant claims his apartment is in poor condition. He called the Boston Inspectional Services Department (“ISD”) on October 15, 2007, after he was already behind in his rent. On October 20, 2007, ISD sent a written inspection report (See Trial Exhibit 2) to plaintiffs citing a number of defective conditions. Said written report was the first indication plaintiffs had as to defects in the premises. The Court does not credit defendant’s testimony.

The Court finds that the defective conditions cited by ISD in the aggregate constituted a

 

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breach of the implied warranty of habitability. G.L. 239, s. 8A. Accordingly, although defendant has not established a defense to possession, the Court finds that defendant is entitled to a rent

abatement in the amount of $120.00 per month from October through December 2007.

In accordance with G.L. c. 239, s. 8A, it is ordered that judgment enter in favor of plaintiffs (landlords) for possession and unpaid rent damages in the reduced amount of $2,720.00 through January 2008, plus court costs.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ordered that judgment enter in favor of plaintiffs (landlords) for possession and unpaid rent damages in the reduced amount of $2,720.00 through January 2008, plus court costs.

 

 

 

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End Of Decision

 

HOUSING COURT

EMIL E. IGWENAGU VS. MARIO GONZALEZ

 

 

WORCESTER, ss.

 

Docket # SUMMARY PROCESS NO. 08-SP-2758

Parties: EMIL E. IGWENAGU VS. MARIO GONZALEZ

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: August 20, 2008

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

In this eviction case, plaintiff seeks possession from defendant for non-payment of rent. Defendant filed a written answer, and the court finds as follows: Plaintiff owns 151. Dewey Street, Worcester, wherein defendant resides at Apartment #1R as a tenant-at-will: The rent is $600.00 due the 1st day of each month. Defendant paid no rent for July or August, leaving a balance of $1,200.00 due plaintiff, who terminated the tenancy.

The court finds that the conditions of the premises (rodent infestation, inoperable stove, missing and defective screens, hollow core rear entry door, ceiling stains from water leak, incomplete ceiling repair, trash and debris strewn throughout the yard) none of which conditions were caused by defendant, constitute a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). (See Defendant’s Trial Exhibits A and B). Plaintiff knew or should have known of said conditions since May 2008, before defendant was in arrears in his rent. Accordingly, defendant established a defense to possession under G.L. c. 239, s. 8A.

The fair rental value of the premises free of defects is $600.00, and the fair rental value

 

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given the defective conditions is $400.00. The value of the premises from May 1, 2008 (taking into account the existing defects that exist) totals $1,600.00. During that same period of time, defendants paid plaintiff $1,200.00 in rent, leaving a balance of $400.00 due plaintiff under Section 8A. As to all other counterclaims asserted in defendant’s written answer, the evidence presented in insufficient for a finding in favor of defendant.

 

ORDER FOR JUDGMENT

Judgment shall enter in favor of defendant (tenant) for possession on the condition that within seven (7) days of receipt of this order, defendant deposits with the Clerk of this court the sum of $400.00 by bank check or money order payable to Emil E. Igwenagu. If this deposit is made; the Clerk shall immediately release all such funds to plaintiff. If the deposit is not made, judgment shall automatically enter in favor of plaintiff (landlord) for possession and unpaid rent damages in the amount of $400.00 through August, 2008, plus court costs.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

PAUL E. MARVELLE AND LINDA M. MARVELLE VS. MICHAEL A. LAROSSE AND KERRI L. RECORE

 

WORCESTER, ss.

 

Docket # SUMMARY PROCESS NO. 08-SP-2452

Parties: PAUL E. MARVELLE AND LINDA M. MARVELLE VS. MICHAEL A. LAROSSE AND KERRI L. RECORE

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: August 19, 2008

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

In this eviction case, plaintiffs seek possession from defendants for non-payment of rent. Defendants filed a written answer, and the court finds as follows: Plaintiff owns 171 Mendon Street, Blackstone, wherein defendants reside at Apartment #2 as a tenants. The rent is $600.00 due the first of each month. Defendants paid $160.00 toward March 2008 rent and nothing since, leaving a total balance of $3,440.00 in unpaid rent due plaintiffs, who terminated the tenancy by serving a legally sufficient notice to quit on defendants.

Defendants testified that they are being retaliated against because they simply exercised their rights earlier this summer by calling the police and swearing out a complaint against Linda Marvelle for assault and battery. Shortly after their complaint against Ms. Marvelle, defendants received a notice to quit for non-payment of rent on June 16, 2008, which is within six months of their complaint about Ms. Marvelle’ s conduct, creating a presumption that this eviction action is retaliatory. G.L. c. 239, s. 2A, G.L. c. 186, s. 18.

Plaintiff’s, however, presented the court with clear and convincing evidence to rebut that presumption. That clear and convincing evidence consisted of defendants’ failure to pay rent when due. The court finds that plaintiffs did not commence this eviction action in retaliation for defendants’ complaint, but rather because of defendants’ failure to pay their rent, and that

 

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plaintiffs would have taken this eviction action even if defendants had not contacted police or sworn out a complaint against Ms. Marvelle. Accordingly, plaintiffs are entitled to judgment as to defendants’ retaliation claim.

As to all other defenses and counterclaims asserted in defendants’ written answer, the evidence presented at trail was insufficient for a finding in favor of defendants on any said claims. Accordingly, plaintiff is entitled to judgment on all such claims.

 

ORDER FOR JUDGMENT

Based on all the credible testimony and evidence presented, it is ordered the judgment enter in favor of plaintiffs for possession and unpaid rent damages on $3,440.00 through August 2008, plus court costs.

 

 

 

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End Of Decision

 

HOUSING COURT

BRENDA LIX ROSARIO VS. KARINE JOSEPH AND GEORGE JOSEPH

 

WORCESTER, ss.

 

Docket # SUMMARY PROCESS NO. 08-SP-2594

Parties: BRENDA LIX ROSARIO VS. KARINE JOSEPH AND GEORGE JOSEPH

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: August 19, 2008

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

This is a no cause eviction brought by plaintiff who seeks to recover the premises from defendants after the termination of the tenancy. Defendants filed a written answer including defenses and counter claims against plaintiff. The court finds as follows: Plaintiff owns 8 Charlton Street, Worcester, wherein defendants reside as tenants at Apartment #2. The rent is $850.00 due the first day of each month. Defendants paid no rent for May, June, July or August, leaving a total balance of $3,400.00 in unpaid rent due plaintiff Plaintiff terminated the tenancy by serving legally sufficient notices to quit upon defendants citing no cause.

In April 2008, plaintiff breached defendants’ quiet enjoyment of the premises by blocking access to the basement thus interfering with the installation of cable service for defendants. Plaintiff also unreasonably denied defendants’ reasonable access to the parking area at the rear of the premises, all in violation of G.L. c. 186, s. 14. The court takes Judicial Notice of Civil Docket No. 08-CV-293.

Defendants claim this eviction case was brought by plaintiff to retaliate against them after they filed the above referenced civil complaint about parking and cable access. A tenant has a defense to the landlord’s claim for possession under G.L. c. 239, s. 2A and a claim for damages under G.L. c. 186, s. 18, if the landlord’s commencement of a summary process action or his service upon the tenant of a notice of termination upon which the action is based, was in retaliation for, among other things, the tenant’s asserting a right he/she may have as a tenant as

 

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provided in G.L. c. 186, s. 18. Under Sections 2A and 18, the commencement of a summary process action or the service of a notice of termination within six (6) months of a tenant’s action, creates a rebuttable presumption of retaliation.

Defendants filed the civil complaint in the Housing Court on April 11, 2008 seeking a court order that plaintiff allow them to re-install cable service, and restore them to a parking space at the premises. At the end of the following month, plaintiff served defendants with a notice to quit citing no cause, creating the presumption that the eviction is retaliatory. Despite serving notices to quit upon defendants citing no cause, the Summons and Complaint filed by plaintiff cites defendants “Refusal to Pay Rental Increase” as a reason for the eviction. The court finds that no such agreement existed as to any rent increase. Plaintiff failed to present clear and convincing evidence tending to rebut the statutory presumption of retaliation. The court finds’ that plaintiff brought this eviction action in retaliation for defendants’ exercising of their rights as tenants by filing the above referenced civil case. Plaintiff’s conduct constitutes is a violation of G. L. 93A. As to all other claims asserted in defendants’ written answer, the evidence presented is insufficient for a finding for defendants.

 

ORDER FOR JUDGMENT

Judgment shall enter in favor of defendants for possession on the condition that within seven (7) days of receipt of this order, defendants deposit with the Clerk of this court a bank check or money order payable to Brenda Lix Rosario in the amount of $825.00 (3,400.00 in unpaid rent minus three month’s rent damages for

plaintiff’s violation of G.L. 186, s. 14 and G.L. c. 239, s. 2A, and G.L. c. 186, s. 18, minus $25.00 for plaintiffs violation of G.L. c. 93A) by bank check or money order payable to plaintiff. If this deposit is made, the Clerk shall immediately release all such funds to plaintiff. If the deposit is not made, judgment shall automatically enter in favor of plaintiff for possession and damages in the amount of $825.00 through August, 2008, plus court costs.

 

 

 

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End Of Decision

 

HOUSING COURT

EDWARD STOCKWELL VS. CATHERINE DENARO AND DANA PADULA

 

 

WORCESTER, ss.

 

Docket # SUMMARY PROCESS NO. 08-SP-2289

Parties: EDWARD STOCKWELL VS. CATHERINE DENARO AND DANA PADULA

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: August 19, 2008

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

In this eviction case, plaintiff seeks possession of the rented premises from defendants for non-payment of rent. Defendants filed a written answer that included affirmative defenses and counterclaims, and the court finds as follows: Plaintiff owns 19 Wixtead Court, Douglas, wherein defendants have resided as tenants since April 1, 2007 subject to a written agreement. The rent is $1,150.00 due the first day of each month. Defendants paid no rent for May, July or August, 2008, and paid only $575.00 toward June rent, leaving a total balance of $4,025.00 in unpaid rent due plaintiff who terminated the tenancy.

Defendants testified that the conditions of the premises are defective and in violation of G.L. c. 239, s. 8A. There exists with respect to every residential tenancy, an implied warranty that the premises are fit for human habitation. A landlord is in breach of the warranty where there exist defects that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the implied warranty occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the apartment.

 

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Defendants sent a written notice to plaintiff outlining a number of defective conditions in the premises, (See Defendants’ Trial Exhibit A), citing faulty smoke detectors, defective railing and stair treads on the deck, defective bathroom vent and door handle, rust coloring on the bathroom ceiling, peeling paint in the bathroom, windows in spare room that do not open, broken kitchen drawers, defective kitchen stove top and kitchen flooring, missing garage window pane through which small animals get into the garage where trash is stored, missing garage door openers, and leaking exterior gutters above the front door. (See Defendants’ Trial Exhibit A). The bathroom vent and door handle were repaired in late July 2008. The kitchen flooring was repaired in March 2008. All other defects cited

have yet to be repaired.

The court finds that the un-repaired defects cited by defendants, none of which they caused, in the aggregate constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, supra. Said conditions do not constitute a breach of quiet enjoyment under G.L. c. 186, s. 14. Plaintiff knew or should have known about said defects since September 7, 2007, before defendants were in arrears in their rent. Accordingly, defendants established a defense to possession under Section 8A.

The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises free of defects and the fair rental value of the premises during the period that the defective condition existed. Boston Housing Authority v. Hemingway, supra; Haddad v. Gonzalez, 410 Mass. 855, 872 (1991). The court finds that the fair rental value of the premises free of defects is the contract rent of $1,150.00, and the fair rental value given the defective conditions to be $977.50.

The fair rental value of the premises from September 2007 (taking into account the defective conditions that existed during that period of time) totals $11,730. During that same

 

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period of time, defendants paid plaintiff $9,775.00. Accordingly, the amount due plaintiff in accordance with Section 8A is $1,955.00.

As to all other defenses and counterclaims asserted in defendants’ written answer, the evidence presented was insufficient for a finding in favor of defendants.

 

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ordered that judgment enter for defendants for possession pursuant to the fifth (5th) paragraph of G.L. c 239, s. 8A, on the condition that within seven (7) days of receipt of this order, defendants deposit with the Clerk of this court the sum of $1,955.00 by bank check or money order made payable to Edward Stockwell. If this deposit is made, the Clerk shall immediately release all such funds held by the court to plaintiff. If the deposit is not made as prescribed, judgment shall automatically enter in favor of plaintiff (landlord) for possession and damages in the amount of $1,955.00 through August 2008, plus court costs.

 

 

 

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End Of Decision

 

HOUSING COURT

WHITTIER CROWN HILL, LLP VS. GLORIA RIVERA

 

 

Docket # SUMMARY PROCESS NO. 08-SP-2520

Parties: WHITTIER CROWN HILL, LLP VS. GLORIA RIVERA

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: August 18, 2008

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

This is a cause eviction in which plaintiff seeks to recover possession of the premises from defendant, who filed a written answer. The court finds as follows: Plaintiff owns 63 Chatham Street, Worcester, wherein defendant resides at Apartment #1 subject to a written Occupancy Agreement. (See Plaintiff’s Exhibit 1). On May 30, 2008, plaintiff served defendant with a legally sufficient notice to quit due to defendant’s material non-compliance with the terms and conditions of said Occupancy Agreement. The court credits the testimony and evidence presented by plaintiff, and finds defendant to lack credibility.

Each month, plaintiff pays defendant $22.00 to be applied toward her utility bills. Defendant is obligated to pay all amounts due for utilities over and above the $22.00 paid by plaintiff. In the spring of 2008, despite plaintiff’s consistent monthly payments of $22.00, defendant’s electrical service was terminated because she failed to fully pay her electric bills.

On May 25, 2008, plaintiff’s security staff discovered an extension cord plugged into an electrical outlet inside a vacant apartment (Building 63, Apartment #4) and running into defendant’s apartment. The utilities at the vacant apartment were being paid for by plaintiff. Defendant forcibly dislodged an exterior air conditioner vent at the vacant apartment and gained

 

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access to the electrical outlet inside. (See Plaintiffs Trial Exhibit 6). When plaintiff discovered the situation and brought it to defendant’s attention, she removed the extension cord. Three days later, however, she re-entered the vacant apartment without authorization and re-installed the extension cord.

Defendant’s conduct constituted a serious interference with the quiet enjoyment, and substantial damage to the premises in the course of her unauthorized entry into the vacant apartment. Her theft of electricity from the vacant apartment using an extension cord created a serious hazard jeopardizing the health, safety and welfare of other residents at the premises. The court finds that defendant substantially and materially violated Paragraph F of said Occupancy Agreement giving plaintiff good cause to evict her pursuant to Paragraph G-10 thereof

 

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial and the reasonable inferences drawn therefrom in light of the governing law it is ordered that judgment enter for plaintiff for possession, plus court costs.

 

 

 

 

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End Of Decision

 

HOUSING COURT

WILLIAM RITACCO VS. ELIZABETH GALLANT

 

WORCESTER, ss.

 

Docket # SUMMARY PROCESS NO. 08-SP-2311

Parties: WILLIAM RITACCO VS. ELIZABETH GALLANT

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: July 31, 2008

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

In this eviction case, plaintiff seeks possession of the premises from defendant for non-payment of rent. Defendant filed a written answer, and the court finds as follows: Plaintiff owns 17 Shale Street, Worcester, wherein defendant resides as a tenant-at-will at Apartment #2L. The rent is $550.00 due the first day of each month. Defendant paid $237.50 toward rent for May and nothing since, leaving a balance of $1,412.50 in unpaid rent due plaintiff, who terminated the tenancy by serving a legally sufficient notice to quit upon defendant on June 2, 2008.

Defendant claims plaintiff is evicting her because she complained to local health officials about poor conditions in her apartment. A tenant has a defense to the landlord’s claim for possession under G.L. c. 239, s. 2A and a claim for damages under G.L. c. 186, s. 18, if the landlord brings an eviction case in retaliation for, among other things, the tenant’s complaint to the health department about suspected Sanitary Code violations. Under Sections 2A and 18, an eviction case brought within six (6) months of such a complaint creates a rebuttable presumption of retaliation.

Defendant complained to the health department, and after inspection, a written notice was sent to plaintiff on April 28th citing a number of Sanitary Code violations on the premises. (See Defendant’s Trial Exhibit A). On June 2″d, defendant received plaintiff’s notice to quit creating a presumption that the eviction was retaliatory. Plaintiff, however, produced clear and convincing evidence (defendant’s failure to pay her rent) to rebut the presumption. The court finds that plaintiff commenced the eviction action solely because defendant failed to pay her rent, and did

 

 

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not engage in any acts of reprisal against defendant pursuant to G.L. c. 239, s. 2A or c. 186, s. 18.

As to the defective conditions alleged by defendant, there exists with respect to every residential tenancy an implied warranty that the premises are fit for human habitation. A landlord is in breach of the warranty if defects exist that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). Such a breach occurs from the time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the apartment.

In this case, defendant complained to Worcester health officials, who inspected the premises on April 28, 2008, and immediately thereafter, sent a written notice to plaintiff citing various Sanitary Code violations. Additional violations were cited on July 8, 2008. (See Defendant’s Trial Exhibits A and F). The court finds that the defective conditions cited in said notices, none of which were caused by defendant, constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, supra. With the exception of the sewerage break, the defective bathroom faucet, and the inoperable lock on the rear door, none of the repairs ordered by the health department have been completed.

Further, the apartment’s electrical service has been cross metered causing defendant to be responsible for common area lighting without a written agreement to that effect.. The court finds that the inoperable lock and the cross metering violate the provisions of G.L. c. 186, s. 14 entitling defendant to one month’s rent damages ($550.00) plus minimum statutory damages under G.L. c. 93A for each such violation ($50.00) plus a reasonable attorney fee.

The measure of damages for plaintiff’s breach of the implied warranty of habitability is the difference between the fair rental value of the premises free of defects and the fair rental value given the defective conditions. Boston Housing Authority v. Hemingway, supra; Haddad v. Gonzalez, 410 Mass. 855, 872 (1991). The court finds that the fair rental value of the premises free of defects is $550.00 and the fair rental value given the defects cited is $400.00. Plaintiff knew of the defects in April 2008, before defendant was in arrears in her rent, thus establishing a defense to possession under G.L. c. 239, s. 8A. The fair rental value of the premises from April through July 2008 (taking into account the defective conditions that existed) totals $1,600.00. During that period of time, defendant paid plaintiff $787.50, leaving a balance of $812.50 due plaintiff under Section 8A.

 

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ORDER FOR JUDGMENT

It is ordered that judgment enter in favor of defendant for possession pursuant to the fifth (5th) paragraph of G.L. c 239, s. 8A, on the condition that within seven (7) days of receipt of this order, defendant deposits with the Clerk of this Court the sum of $212.50 ($812.50 in unpaid rent due plaintiff under Section 8A, minus $550.00 for plaintiffs breach of quiet enjoyment, minus $50.00 for plaintiff’s 93A violations) by bank check or money order made payable

to William Ritacco. If this deposit is made, the Clerk shall immediately release all such funds held by the court to plaintiff. If the deposit is not made as prescribed, judgment shall automatically enter in favor of plaintiff for possession and damages in the amount of $212.50 through July 2008, plus court costs.

Plaintiff shall pay directly to defendant’s lawyer a reasonable attorney fee pursuant to G.L. c. 186, s. 14 and G.L. c. 93A, which shall be determined by the court upon the filing

motion and fee affidavit.

 

 

 

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End Of Decision

 

HOUSING COURT

CARMEN JIMENEZ and JOSEPH LeBLANC V. MATT JOHNSON

 

WORCESTER, ss.

 

Docket # CIVIL ACTION NO. 06-SP-1508

Parties: CARMEN JIMENEZ and JOSEPH LeBLANC V. MATT JOHNSON

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: June 18, 2008

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

This case survived a summary process action involving the same parties, and the claims consist of civil claims that were severed from the summary process matter including claims for breach of the warranty of habitability, interference with quiet enjoyment, intentional or reckless infliction of emotional distress, and unfair and deceptive practices under G.L. c. 93A. A jury waived trial was held on May 16, 2008 and the court finds as follows: Defendant in Counterclaim (hereafter defendant) (Matt Johnson) owns a three-family residential dwelling at 228 Laurel Street, Fitchburg, wherein plaintiffs in Counterclaim (hereafter plaintiffs) (Carmen Jimenez and Joseph LeBlanc) resided at Apartment #1 subject to a lease. The apartment contained three bedrooms and the rent was $700.00 due the first day of each month. Plaintiffs took occupancy of the premises on or about October 15, 2005. Plaintiffs did not pay rent to defendant for May 2006, and defendant terminated the tenancy on or about May 2, 2006 by serving a legally sufficient 14-day notice to quit upon plaintiffs for non-payment of rent. Plaintiffs, who had previously expressed an intent to vacate the premises, did so at

 

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the end of May 2006. Plaintiffs had paid a last month’s rent deposit in the amount of $700.00 at the inception of the tenancy.

Plaintiffs assert that the conditions of their apartment were defective, and claim that such defects rise to the level of a breach of quiet enjoyment. G.L.c. 239, s. 8A. G.L.c. 186, s. 14. There exists with respect to every residential tenancy an implied warranty that the premises are fit for human habitation. A landlord is in breach of the warranty where there exist defects that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the implied warranty of habitability occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the apartment.

Ms. Jiminex viewed the apartment with the Defendant in late September 2005. When viewing the apartment, she pointed out items

requiring repair to Defendant. The items requiring repairs were as follows: a) bathtub in disrepair; b) kitchen cabinets in disrepair; c) prior radiator fixtures protruding from the floor; d) stove missing knobs and in disrepair; e) basement where junction box located was padlocked. Defendant had knowledge of said conditions at the inception of the tenancy, and did not present any evidence tending to show that any of said defects were repaired at any point during the tenancy.

The court finds that the defective conditions raised by plaintiffs, none of which conditions were caused by plaintiffs, in the aggregate constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, supra, and constitute a breach of the implied covenant of quiet enjoyment. G.L.c. 186, s. 14.

The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises free of defects and the fair rental

 

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value of the premises during the period that the defective condition existed. Boston Housing Authority v. Hemingway, supra; Haddad v. Gonzalez, 410 Mass. 855, 872 (1991). The court finds that the fair rental value of the premises free of defects is the contract rent of $700.00, and that the fair rental value of the premises given the defective conditions is $300.00.

The fair rental value of the premises from October 15, 2005 through May 2006 (taking into account the defective conditions that existed throughout that period of time) totals $2,250.00. During that same period of time, plaintiffs paid defendant $5,250.00 in rent. Accordingly, the amount due plaintiffs on their Section 8A claims is $3,000.00.

As to all other claims asserted by plaintiffs, the court finds that the evidence, . presented in insufficient to enter judgment against defendant thereon. Accordingly, defendant is entitled to judgment on all such claims.

 

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ordered that judgment enter in favor of plaintiffs in the amount of $3,000.00 in accordance with G.L. c. 239, s. 8A, plus a reasonable attorney fee pursuant to G.L. c. 186, s. 14. The attorney fee shall be determined by the court upon the filing of a proper motion and affidavit, whereupon defendant shall deliver such fee directly to plaintiffs’ attorney.

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

PAUL PARIZEK VS. LILY WATERS AND LUIS MARTINEZ

 

 

 

WORCESTER, ss. H

 

Docket # SUMMARY PROCESS NO. 08-SP-1852

Parties: PAUL PARIZEK VS. LILY WATERS AND LUIS MARTINEZ

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: June 9, 2008

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

Plaintiff owns 85 Prospect Street, Worcester, wherein defendants have resided at Apartment #1B as tenants-at-will since April 8, 2008. The rent is $800.00 due the 18th day of each month. Defendants have paid no rent, leaving a balance of $1,740.00 due plaintiff, who terminated the tenancy.

Defective conditions exist in the apartment, including broken spokes on a porch railing, missing baseboard heater covers, cracks in the ceilings and walls, a missing kitchen cabinet door, and defective flooring tile. Said defects, which were not caused by defendants, constitute a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). Plaintiff knew or should have known of said conditions when defendants moved into the premises in April. Accordingly, defendants established a defense to possession under G.L. c. 239, s. 8A.

The fair rental value of the premises free of defects is $800.00, and the fair rental value given the defects is $700.00. The value of the premises from April 8, 2008 (taking into account the existing defects) totals $1,540.00. During that same period of time, defendants paid plaintiff no rent. Therefore, the balance due plaintiff under Section 8A is $1,540.00.

 

ORDER FOR JUDGMENT

Judgment shall enter in favor of defendants for possession on the condition that within seven (7) days of receipt of this order, defendants deposit with the Clerk of this court the sum of $1,540.00 by bank check or money order payable to plaintiff. If this deposit is made, the Clerk shall immediately release all such funds to plaintiff If the deposit is not made, judgment shall automatically enter in favor of plaintiff for possession an damages in the amount of $1,540.00 through June 17, 2008, plus court costs.

 

 

 

 

 

End Of Decision

HOUSING COURT

PAUL PARIZEK VS. LILY WATERS AND LUIS MARTINEZ

 

 

 

WORCESTER, ss. H

 

Docket # SUMMARY PROCESS NO. 08-SP-1852

Parties: PAUL PARIZEK VS. LILY WATERS AND LUIS MARTINEZ

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: June 9, 2008

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

Plaintiff owns 85 Prospect Street, Worcester, wherein defendants have resided at Apartment #1B as tenants-at-will since April 8, 2008. The rent is $800.00 due the 18th day of each month. Defendants have paid no rent, leaving a balance of $1,740.00 due plaintiff, who terminated the tenancy.

Defective conditions exist in the apartment, including broken spokes on a porch railing, missing baseboard heater covers, cracks in the ceilings and walls, a missing kitchen cabinet door, and defective flooring tile. Said defects, which were not caused by defendants, constitute a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). Plaintiff knew or should have known of said conditions when defendants moved into the premises in April. Accordingly, defendants established a defense to possession under G.L. c. 239, s. 8A.

The fair rental value of the premises free of defects is $800.00, and the fair rental value given the defects is $700.00. The value of the premises from April 8, 2008 (taking into account the existing defects) totals $1,540.00. During that same period of time, defendants paid plaintiff no rent. Therefore, the balance due plaintiff under Section 8A is $1,540.00.

 

ORDER FOR JUDGMENT

Judgment shall enter in favor of defendants for possession on the condition that within seven (7) days of receipt of this order, defendants deposit with the Clerk of this court the sum of $1,540.00 by bank check or money order payable to plaintiff. If this deposit is made, the Clerk shall immediately release all such funds to plaintiff If the deposit is not made, judgment shall automatically enter in favor of plaintiff for possession an damages in the amount of $1,540.00 through June 17, 2008, plus court costs.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

JAROSLAW PIANKA VS.JUSTIN BENNETT AND ANGELA RIVERA

 

 

WORCESTER, ss.

 

Docket # SUMMARY PROCESS NO. 08-SP-1498

Parties: JAROSLAW PIANKA VS.JUSTIN BENNETT AND ANGELA RIVERA

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: May 15, 2008

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

In this eviction case, plaintiff seeks to recover possession of the premises from defendants for non-payment of rent. No written answer was filed, and the court finds as follows: Plaintiff owns 4 Dale Court, Rochdale, wherein defendants reside as tenants-at-will. The rent is $1,050.00 due the first of each month. Defendants paid no rent since October 2007, leaving a balance of $7,350.00 in unpaid rent due plaintiff, who terminated the tenancy.

Defendants asserted defenses and counterclaims under G.L. c. 239, s 8A, claiming that the water service was interrupted for one day in 2006, and that the heating system malfunctioned in 2006 resulting in four days without heat. Defendants also testified about electrical problems on the second floor of the premises, which plaintiff denied. No evidence was presented tending to support defendants’ claims. The court credits the testimony of plaintiff, and finds no breach of the implied warranty of habitability.

 

ORDER FOR JUDGMENT

Based on all the credible testimony and evidence presented at trial, it is ordered that judgment enter for plaintiff (landlord) for possession and unpaid rent damages in the amount of $7,350.00 through May 2008, plus court costs.

 

 

 

 

End Of Decision

 

HOUSING COURT

ANTONIO FALCO, BY HIS GUARDIAN, KATHY LaPARDE VS. TARA BENNETT MURPHY AND BRIAN MURPHY

 

 

WORCESTER, ss.

 

Docket # SUMMARY PROCESS NO. 08-SP-1516

Parties: ANTONIO FALCO, BY HIS GUARDIAN, KATHY LaPARDE VS. TARA BENNETT MURPHY AND BRIAN MURPHY

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE STICE

Date: May 14, 2008

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

In this eviction case, plaintiff seeks to recover possession of the premises from defendants for non-payment of rent. No written answer was filed, and the court finds as follows: Plaintiff owns 22 Vine Street, Marlboro, wherein defendants have resided since January 1, 2008 at Apartment #2 subject to a written lease. The rent is $1,050.00 due the first of each month. Defendants paid no rent since February, leaving a balance of $3,150.00 in unpaid rent due plaintiff, who terminated the tenancy.

Defendants asserted a defense to possession and counterclaims under the provisions of G.L. c. 239, s 8A, claiming defective conditions within the premises. There exists with respect to every residential tenancy, an implied warranty that the premises are fit for human habitation. A landlord is in breach of the warranty if defects exist that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the warranty occurs from the time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the apartment.

At the inception of the tenancy, the parties agreed that the front and back doors to the apartment are too small, leaving gaps along the bottom of the doors. Plaintiff agreed to repair this defective condition by replacing both doors. To date, neither door has been replaced. The court finds that said defects, which were not caused by defendants, constitute a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, supra. Plaintiff knew or should have known that said conditions existed when defendants moved into the

 

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premises. Accordingly, defendants established a defense to possession.

The court finds that the fair rental value of the premises free of defects is $1,050.00, and the fair rental value given the defective doors is $950.00. The value of the premises from January 2008 (taking into account the defective doors) totals 4,750.00. During that same period of time, defendants paid plaintiff $2,100.00 in rent, leaving a balance of $2,650.00 due plaintiff under Section 8A.

ORDER FOR JUDGMENT

Based on all the credible testimony and evidence presented at trial, it is ordered that judgment enter in favor of defendants (tenants) for possession on the condition that within seven (7) days of receipt of this order, defendants deposit with the Clerk of this court the sum of $2,650.00 by bank check or money order payable to Antonio Falco. If this deposit is made, the Clerk shall immediately release all such funds to plaintiff (landlord). If the deposit is not made as prescribed, judgment shall automatically enter in favor of plaintiff for possession and damages

in the amount of $2,650.00 through May 2008, plus court costs.

 

 

 

 

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End Of Decision

 

HOUSING COURT

MATRAKAS PROPERTIES VS. ROBERT FERRO

 

WORCESTER, ss.

 

Docket # SUMMARY PROCESS NO. 08-SP-811

Parties: MATRAKAS PROPERTIES VS. ROBERT FERRO

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: March 20, 2008

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

In this eviction case, plaintiff seeks to recover possession of the premises from defendant for non-payment of rent. No written answer was filed and the court finds as follows: Plaintiff owns 29 Hildreth Street, Marlboro, wherein defendant resides as a tenant in the basement apartment. The rent is $850.00 due the first day of each month. Defendant owes $735.94 toward January rent, and has paid no rent since, leaving a balance of $2,435.94 in unpaid rent due landlord, who terminated the tenancy.

Defendant cited defects in the premises. Specifically, he testified that water leaks have damaged the flooring and kitchen/bathroom ceiling panels, some of which have fallen in. It has been an ongoing problem since October 2007. Water leaks also flooded a separate portion of the basement where defendant stores personal belongings. In addition, the mortar in the bricks around the windows is deteriorating, creating a cold draft in defendants apartment.

The court finds that the defective conditions cited by defendant in the aggregate constituted a breach of the warranty of habitability. Boston Housing Authority v. Hemingw y, 363 Mass. 184, 199 (1973). The measure of damages for a breach of the warranty is the

 

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difference between the fair rental value of the premises free of defects and the fair rental value of the premises with the defective conditions. The court finds that the fair rental value of the premises free of defects is the contract rent of $850.00, and the fair rental value given the defective conditions is $680.00. Haddad v. Gonzalez, 410 Mass. 855, 872 (1991). Plaintiff knew or should have known about said conditions since October 2007, before defendant was first in arrears in his rent. Accordingly, defendant has established a defense to possession under G.L. c. 239, s. 8A. The fair rental value of the premises from October (taking into account the defects that existed during that period of time) totals $4,080.00. In that time, defendant paid $2,664.06 in rent. Accordingly, the balance due plaintiff is $1,415.94.

 

ORDER FOR JUDGMENT

Based on the credible testimony and evidence presented at trial in light of the governing law, it is ordered that judgment enter for defendant (tenant) for possession pursuant to the fifth (5th) paragraph of G.L. c 239, s. 8A, on the condition that within seven (7) days of his receipt of this order, defendant deposits with the Clerk of this Court a bank check or money order made payable to MITRAKAS PROPERTIES in the amount of $1,415.94. If this deposit is made, the Clerk shall immediately release all such funds to plaintiff. If the deposit is not made as prescribed, judgment shall automatically enter for plaintiff (landlord) for possession and damages in the amount of $1,415.94 through March 2008, plus court costs.

 

 

SO ORDERED:

 

 

 

 

 

End Of Decision

 

HOUSING COURT

STEVEN FAHEY VS. MARY CARLE AND JACQUELINE LYONS-SNOW

 

 

WORCESTER, ss.

 

Docket # SUMMARY PROCESS NO. 08-SP-762

Parties: STEVEN FAHEY VS. MARY CARLE AND JACQUELINE LYONS-SNOW

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: March 6, 2008

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

In this eviction case, plaintiff seeks possession of the premises from defendants for non-payment of rent. Defendants filed a written answer, and the court finds as follows: Plaintiff owns 197 St. Nicholas Avenue, Worcester, wherein defendants reside as tenants-at-will. The rent is $995.00 due the first of each month. Defendants paid no rent since December 2007, leaving a balance of $2,985.00 in unpaid rent due plaintiff, who terminated the tenancy.

Defendants asserted a defense to possession and counterclaims under the provisions of G.L. c. 239, s 8A, claiming defective conditions in the premises. There exists with respect to every residential tenancy, an implied warranty that the premises are fit for human habitation. A landlord is in breach of the warranty if defects exist that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the warranty occurs from the time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the apartment.

Defendants notified plaintiff in mid-December about water damage to the kitchen ceiling. The damage was caused by a clogged toilet that overflowed in defendants’ second-floor bathroom. The problem has not recurred. Defendants complained to the health department in January that the ceiling damage remained. After inspection, the health department cited plaintiff for the ceiling damage as a violation of the Sanitary Code. The repairs were completed on

 

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January 23, 2008. The court finds that the defective kitchen ceiling, which was not caused by defendant, in the aggregate constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, supra. Plaintiff knew said conditions existed in mid-December, before defendants were in arrears in their rent.

The court finds that the fair rental value of the premises free of defects is $995.00, and the fair rental value given the defective ceiling is $795.00. The premises value from December 2007 (taking into account the kitchen ceiling defects that existed for a month) totals $3,780.00. During that same period of time, defendant paid $995.00 in rent, leaving a balance of $2,785.00 due

plaintiff under Section 8A.

As to defendants’ retaliation claim, the court finds that plaintiff terminated the tenancy solely because defendants failed to pay rent when it was due, and that plaintiff did not act in retaliation against defendants. The court finds that, even if defendants had not complained about the defective kitchen ceiling, plaintiff would have taken this action against them for failure to pay rent. Accordingly, plaintiff is entitled to judgment on defendants’ retaliation claim.

 

 

ORDER FOR JUDGMENT

Based on all the credible testimony and evidence presented at trial in light of the governing law, it is ordered that judgment enter in favor of defendants (tenants) for possession on the condition that within seven (7) days of their receipt of this order, defendants deposit with the Clerk of this court the sum of $2,785.00 by bank check or money order payable to STEVEN FAHEY. If this deposit is made, the Clerk shall immediately release all such funds to plaintiff If the deposit is not made as prescribed, judgment shall automatically enter in favor of plaintiff (landlord) for possession and damages in the amount of $2,785.00 through March 2008, plus court costs.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

THOMAS CLARKE VS. EDMOND CORNIER

 

 

 

WORCESTER, ss.

 

Docket # SUMMARY PROCESS NO. 08-SP-418

Parties: THOMAS CLARKE VS. EDMOND CORNIER

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: March 10, 2008

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

In this eviction case, plaintiff seeks to recover possession of the premises from defendant for non-payment of rent. No written answer was filed, and the court finds as follows: Plaintiff is the landlord and property manager for the premises at 54 Pritchard Street, Fitchburg, wherein defendant resides as a tenant-at-will. The premises is owned by Kai Kunz or Northbridge. The rent is $675.00 due the first of each month. Defendant has paid no rent since November, leaving a balance of $2,700.00 due plaintiff, who terminated the tenancy.

Defendant asserted a defense to possession and counterclaims under G.L. c. 239, s 8A, claiming defective conditions within the premises. There exists with respect to every residential tenancy, an implied warranty that the premises are fit for human habitation. A landlord is in breach of the warranty if defects exist that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the warranty occurs from the time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the apartment.

In October, defendant told plaintiff about defects in his apartment. After a November 8th inspection, the health department cited the landlord for a number of Sanitary Code violations at the premises. (See Defendant’s Trial Exhibits A and C).

Due to the lack of heat, defendant spent five days (November 8th and 9th, and January 13th, 14th, and 15th) in a local motel until plaintiff restored heat on November 10th and January 16th

 

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respectively. (See Defendant’s Trial Exhibit B). No further heat problems have been reported.

 

The court finds that the conditions cited by the health department, none of which were caused by defendant, in the aggregate constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, supra. Plaintiff knew that said conditions existed since October 2007. With the exception of the asbestos and the trash problems that remain unresolved, all other repairs were completed by March 5, 2008.

The court finds that the fair rental value of the premises free of defects is $675.00, and the fair rental value given the defective conditions is $540.00. The value of the premises from October 2007 (taking into account the defective conditions) totals $3,240.00. During that same time period, defendant paid $1,350.00 in rent, leaving a balance of $1,890.00 due under Section 8A. The court shall deduct from the unpaid rent balance defendant’s hotel costs of $393.16, leaving a total balance of $1,496.84 due plaintiff.

 

ORDER FOR JUDGMENT

Based on all the credible testimony and evidence presented at trial in light of the governing law, it is ordered that judgment enter in favor of defendant (tenant) for possession on the condition that within seven (7) days of his receipt of this order, defendant deposits with the Clerk of this court the sum of $1,496.84 by bank check or money order payable to THOMAS CLARKE. If this deposit is made, the Clerk shall immediately release all such funds to plaintiff. If the deposit is not made as prescribed, judgment shall automatically enter in favor of plaintiff (landlord) for possession and damages in the amount of $1,496.84 through March 2008, plus court costs.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

RODRIGO ANDRADE VS. SCOTT GREENWOOD AND LOIS GREENWOOD

 

 

WORCESTER, ss.

 

Docket # SUMMARY PROCESS NO. 07-SP-4868

Parties: RODRIGO ANDRADE VS. SCOTT GREENWOOD AND LOIS GREENWOOD

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: January 1, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

In this eviction case, plaintiff seeks to recover possession of the premises from defendants for non-payment of rent. Defendant filed a written answer, and the court finds as follows: Plaintiff owns 157 East Main Street, Marlborough, wherein defendants reside at the second-floor apartment as tenants-at-will. The rent is $1,100.00 due the first of each month. Defendants have paid no rent since December 2006, leaving a balance of $14,300.00 in unpaid rent due plaintiff, who terminated the tenancy.

Defendants asserted a defense to possession and counterclaims under the provisions of G.L. c. 239, s 8A, claiming plaintiff breached the implied warranty of habitability. There exists with respect to every residential tenancy, an implied warranty that the premises are fit for human habitation. A landlord is in breach of the warranty if defects exist that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the warranty occurs from the time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the apartment.

A sewer pipe burst on November 25, 2007 after a downstairs toilet backed up, flooding a portion of the premises. Plaintiff; who was told immediately, had the problem resolved within a

 

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week. A week after the repair, another sewer problem came about, which plaintiff immediately fixed. The court finds that the defective sewer pipe, which was not caused by defendants, constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, supra. Said defect first came about after defendants fell behind in their rent. Accordingly, although defendants are entitled to a reduction in the amount of rent owed to plaintiff, they have not established a defense to possession.

The court finds that the fair rental value of the premises free of defects is $1,100.00, and the fair rental value given the defective sewer pipe that existed for a week in late November is $825.00. The value of the premises from January 2007 (taking into account the sewer pipe defect that existed during that period of time) totals $14,025.00. During that same period of time, no rent was paid by defendants. Accordingly, the balance due plaintiff pursuant to Section 8A is $14,025.00 through January 2008.

As to all other claims made in defendants’ written answer, the evidence presented does not warrant a finding against the landlord.

 

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ordered that judgment enter in favor of plaintiff (landlord) for possession and unpaid rent damages in the amount of $14,025.00 through January 2008, plus court costs.

 

 

 

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End Of Decision

 

HOUSING COURT

NORMAN R. GADOURY VS. ROXANNE FETZIK AND GREGORY HURST

 

WORCESTER, ss.

 

Docket # SUMMARY PROCESS NO. 07-SP-4325

Parties: NORMAN R. GADOURY VS. ROXANNE FETZIK AND GREGORY HURST

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: December 26, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

In this eviction case, plaintiff seeks possession of the premises from defendants after termination of the tenancy. Defendants filed a written answer, and the court finds as follows: Plaintiff owns 52 Overlook Steet, Whitinsville, wherein defendants reside as tenants-at-will at Apartment #52. The rent is $800.00 due the first day of each month. Defendants paid no rent for October, November or December, leaving a total of $2,400.00 in unpaid rent due plaintiff.

Defendants claim plaintiff breached the implied warranty of habitability. G.L. c. 239, s 8A. The premises has a defective rear exterior cellar door, along with a cracked cellar window. The door is one of two entrances to the cellar, which defendants have no problems accessing. However, the exterior door is dead-bolted from the inside, and the glass on it is covered with plywood that is nailed securely in place. A toilet leak caused water damage to the floor tiles, some of which defendants removed, leaving the plywood sub-flooring which appears to be undamaged. The tile flooring needs to be replaced. A front storm door has a cracked glass panel needing replacement. Although defendants no longer have a key to the front door of the premises, they never informed plaintiff, so the court will not hold plaintiff responsible. The court finds that all other defective conditions cited above, none of which were caused by defendants, in the aggregate constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973).

 

 

– 1-

 

The court finds that the fair rental value of the premises free of defects is $800.00, and the fair rental value given the defective conditions is $650.00.Haddad v. Gonzalez, 410 Mass. 855, 872 (1991). Plaintiff knew or should have known about said conditions since the end of September when he purchased the premises, before defendants were first in arrears in their rent. Accordingly, defendants have established a defense to possession under G.L. c. 239, s. 8A. The fair rental value of the premises from the end of September (taking into account the abatement during that period of time that the defective conditions existed) totals $1,950.00. During that same period of time, defendants paid no rent to plaintiff.

As to all other counterclaims asserted in defendants’ written answer, the evidence presented was insufficient to support a finding against plaintiff. Therefore the court finds in favor of plaintiff on all such claims.

 

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial and the reasonable inferences drawn therefrom, in light of the governing law, it is ordered that judgment enter for defendants (tenants) for possession on the condition that within seven (7) days of their receipt of this order, defendants deposit with the Clerk of

this court the sum of $1,950.00 by bank check or money order made payable to NORMAN R. GADOURY. If this deposit is made, the Clerk shall immediately release all such funds held by the court to plaintiff. If the deposit is not made as prescribed, judgment shall automatically enter in favor of plaintiff (landlord) for possession and damages in the amount of $1,950.00 through December 2007, plus court costs.

 

 

 

 

– 2-

 

 

End Of Decision

 

HOUSING COURT

ALEXANDRE R. SANTOS VS. LUIZ C. GOULART, ET AL.

 

WORCESTER, ss.

 

Docket # SUMMARY PROCESS NO. 07-SP-4463

Parties: ALEXANDRE R. SANTOS VS. LUIZ C. GOULART, ET AL.

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: December 4, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

In this eviction case, plaintiff seeks to recover possession of the premises from defendants for non-payment of rent. A written answer was filed, and the court finds as follows: Plaintiff owns 20 Apsley Street, Hudson, wherein defendants have resided as tenants-at-will at Apartment #3 for about 2’/2 years. The rent is $1,000.00 due the first day of each month. Defendants paid no rent to plaintiff for October and November, leaving a total balance of $2,000.00 due plaintiff, who terminated the tenancy.

Defendants asserted a defense to possession and counterclaims alleging that the conditions of the premises were defective. There exists with respect to every residential tenancy, an implied warranty of habitability that the premises are fit for human habitation. G.L. c. 239, s 8A. A landlord is in breach of the warranty where there exist defects that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the implied warranty of habitability occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the apartment.

In early July, plaintiff began an extensive renovation of the bathroom in defendants’ apartment. Although he anticipated a short interruption of services, defendants’ bathroom facilities were not completely operable for about two months (July and August). To accommodate defendants, plaintiff allowed them the use of a bathroom in a vacant second-floor apartment. About a week after defendant’s began using the vacant apartment bathroom, plaintiff

 

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moved a new occupant into that apartment. Around the first of August, plaintiff re-rented that second-floor apartment to a new tenant, expecting defendants to simply continue using the bathroom there. Around August 19`h, plaintiff offered a two-day hotel stay to defendants, which they declined to accept.

During July and August while awaiting the restoration of their bathroom, defendants showered and used bathroom facilities at a

relative’s home, local hotels, convenience stores, and even used jars and bottles to urinate into during the overnight hours. After the bathtub and toilet were installed in August, the Hudson Health Agent inspected the apartment on September 5, 2007, and cited plaintiff for a number of Sanitary Code violations in the premises including a bathroom sink that was not connected. (See Defendants’ Trial Exhibit A). Said conditions were substantially repaired in early September shortly after plaintiff received the health agent’s report.

The court credits the testimony of defendants, and finds that, along with the inoperable bathroom facility that existed for July and August 2007, the conditions cited by the Hudson Health Agent constitute a breach of the implied warranty of habitability, Boston Housing Authority v. Hemingway, supra, and a breach of the implied covenant of quiet enjoyment, for which the court awards defendants three months rent damages pursuant to G.L. c. 186, s. 14. Given the conditions, none of which were caused by defendants, plaintiff credited defendants with September rent.

 

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ordered that judgment enter in favor of defendants (tenants) for possession. The three months rent damages for breach of quiet enjoyment shall be reduced by $1,000.00 already credited to defendants for September rent, and further reduced by the $2,000.00 unpaid rent due plaintiff through November. Given that defendants were self-represented, the court shall not award attorney fees as would otherwise be allowed under G.L. c. 186, s. 14.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

PHUONG TRAN VS. HUGO SOLANO, JUSTIN BRIGHAM AND HECTOR PADILLA

 

 

WORCESTER, ss.

 

Docket # SUMMARY PROCESS NO. 07-SP-4269

Parties: PHUONG TRAN VS. HUGO SOLANO, JUSTIN BRIGHAM AND HECTOR PADILLA

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE STICE

Date: November 26, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

In this eviction case, plaintiff seeks to recover possession of the premises from defendants for non-payment of rent. The court finds as follows: Plaintiff owns 10-C Clarkson Street, Worcester, where defendants reside as tenants-at-will. The rent is $950.00 due the first of each month. Defendants owe $950.00 in rent for September, $30.00 for October, and $950.00 for November, leaving $1,930.00 in unpaid rent due plaintiff, who terminated the tenancy.

Defendants asserted a defense to possession and counterclaims under the provisions of G.L. c. 239, s 8A, claiming plaintiff breached the implied warranty of habitability. There exists with respect to every residential tenancy, an implied warranty that the premises are fit for human habitation. A landlord is in breach of the warranty if defects exist that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the warranty occurs from the time

that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the apartment.

Defendants said their electricity was interrupted for two days in September due to stormy weather. The court finds no breach the warranty as to this problem. Defendants also said their bathroom sink is cracked and provides insufficient hot water. They also said the bathroom

 

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flooring is defective, as is the screen on their front door.

In July, before defendants were behind in their rent, plaintiff was made aware of a missing basement window through which rain water and insects penetrate into the premises, and damage to a bathroom vanity caused by a toilet leak. The court finds that the defective conditions cited, none of which were caused by defendants, in the aggregate constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, supra.

The court finds that the fair rental value of the premises free of defects is $950.00, and the fair rental value given the defective conditions to be $807.00. The value of the premises from July 2007 (taking into account the defects that existed during that period of time) totals $4,035.00. During that same period of time, defendants paid plaintiff $2,820.00. The balance due plaintiff in accordance with Section 8A is $1,215.00.

 

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ordered that judgment enter for defendants for possession pursuant to the fifth (5th) paragraph of G.L. c 239, s. 8A, on the condition that within seven (7) days of their receipt of this Order, defendants deposit with the Clerk of this Court the sum of $1,215.00 by bank check or money order made payable to PHUONG TRAN. If this deposit is made, the Clerk shall immediately release all such funds held by the court to plaintiff. If the deposit is not made as prescribed, judgment shall automatically enter in favor of plaintiff for possession and damages in the amount of $1,215.00 through November 2007, plus court costs.

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

EDWARD AND ELLEN BUZANOSKI VS. SHAWN AND ROSE WEBSTER

 

 

WORCESTER, ss.

 

Docket # SUMMARY PROCESS NO. 07-SP-3471

Parties: EDWARD AND ELLEN BUZANOSKI VS. SHAWN AND ROSE WEBSTER

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: October 19, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

In this summary process action, plaintiff seeks possession of the premises from defendant upon the termination of a tenancy at will. Defendants filed a written answer that included affirmative defenses and counterclaims, and the court finds as follows: Plaintiff owns 82-84 Water Street, Clinton, wherein defendants reside as tenants-at-will at Apartment #4. The rent is $750.00 due the first day of each month. On July 6, 2007, plaintiff served defendants with a legally sufficient thirty (30) day notice to quit for no cause. Defendants paid $200.00 for July rent and nothing since, leaving a total balance of $2,800.00 due plaintiff through October 2007.

Defendants testified that the conditions of the premises are defective and in violation of G.L. c. 239, s. 8A. There exists with respect to every residential tenancy, an implied warranty that the premises are fit for human habitation. A landlord is in breach of the warranty where there exist defects that may materially affect the

health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the implied warranty occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the apartment.

 

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Specifically, defendants said the apartment’s interior needs painting, the bathroom flooring is not complete, the kitchen tiles are coming up, an exterior door on the back of the house won’t close properly, an oil tank in the basement leaked, the windows don’t stay open, screen is missing from the bedroom window, there is no railing on the exterior rear steps, and there is no fence at the steep change in grade at the rear of the house.

The court finds that the defective kitchen flooring, missing screen in the bedroom, windows that won’t stay open, the defective rear exterior door, unfinished bathroom flooring, and incomplete paint on the interior of the apartment in the aggregate constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, supra. Defendant did not cause any of said defective conditions. Plaintiff knew or should have known about said conditions since the inception of the tenancy (November 1, 2006), before defendants were first in arrears in their rent. Accordingly, defendants established a defense to possession under Section 8A. As to all other defective conditions asserted by defendants, the evidence presented was insufficient for the court to find a breach of the implied warranty of habitability.

The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises free of defects and the fair rental value of the premises during the period that the defective condition existed. Boston Housing Authority, v. Hemingway, supra; Haddad v. Gonzalez, 410 Mass. 855, 872 (1991). The court finds that the fair rental value of the premises free of defects is the contract rent of $750.00, and the fair rental value given the defective conditions to be $712.00.

The fair rental value of the premises from November 2006 (taking into account the defective conditions that existed during that period of time) totals $8,544.00. During that same period of time, defendant paid plaintiff $6,200.00. Accordingly, the amount due plaintiff in

 

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accordance with Section 8A is $2,344.00.

No evidence was presented tending to establish any other defenses and counterclaims asserted in defendants’ written answer. Accordingly, plaintiff is entitled to judgment thereon.

 

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ordered that judgment enter for defendants for possession pursuant to the fifth (5`h) paragraph of G.L. c 239, s. 8A, on the condition that within seven (7) days of their receipt of this order, defendants deposit with the Clerk of this court the sum of $2,344.00 by bank check or money order mace payable to Edmund or Ellen Buzanoski. If this deposit is made,

the Clerk shall immediately release all such funds held by the court to plaintiff. If the deposit is not made as prescribed, judgment shall automatically enter in favor of plaintiff (landlord) for possession and damages in the amount of $2,344.00 through October 2007, plus court costs.

 

 

 

 

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End Of Decision

 

HOUSING COURT

LY NGUYEN CUNNINGHAM VS. PHI DANG

 

WORCESTER, ss.

 

Docket # SUMMARY PROCESS NO. 07-SP-3620

Parties: LY NGUYEN CUNNINGHAM VS. PHI DANG

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

Date: October 18, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

In this eviction case, plaintiff seeks possession and unpaid rent from defendant, who filed a written answer that included an affirmative defense to possession and counterclaims arising from the tenancy. The court finds as follows: Plaintiff owns 6 Courtland Street, Worcester, wherein defendant resided at Apartment #2 as a tenant-at-will. The rent is $800.00 due the first day of each month. Defendant historically failed to pay plaintiff the rent on time, and for several months throughout the tenancy neglected to pay any rent at all. Plaintiff terminated the tenancy by serving a legally sufficient notice to quit on defendant, who vacated the premises on September 15, 2007.

Since moving into the apartment in January 2006, the total amount of rent due plaintiff was $16,400.00 through September 15, 2007. During that same period of time, defendant paid plaintiff a total of $10,050.00, leaving a balance of $6,350.00 in unpaid rent due plaintiff.

Defendant asserted a claim that plaintiff breached the implied warranty of habitability, entitling her to relief under G.L. c. 239, s 8A. Defendant failed to present adequate evidence tending to prove such claim, and the court finds in favor of plaintiff thereon. As to all other

 

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defenses and counterclaims asserted in defendant’s written answer, no evidence was presented thereon, and the court finds in favor of plaintiff on all such claims.

 

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ordered that judgment enter in favor of plaintiff (landlord) for possession and damages of $6,350.00 through September, plus court costs.

 

 

 

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End Of Decision

 

HOUSING COURT

NORTHEAST PROPERTIES VS. JASON LAMBOY AND ARLENE PEREZ

 

WORCESTER, ss.

 

Docket # SUMMARY PROCESS NO. 07-SP-4429

Parties: NORTHEAST PROPERTIES VS. JASON LAMBOY AND ARLENE PEREZ

Judge: /s/TIMOTHY F. SULLIVAN

Date: December 17, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

In this eviction case, plaintiff seeks to recover possession of the premises from defendants for non-payment of rent. Defendants filed a written answer, and the court finds as follows: Plaintiff owns 98 Eastern Avenue, Worcester, wherein defendants resided at Apartment #1L since November 1, 2006 subject to a written lease. The rent is $850.00 due the first of each month. Defendants, who vacated the premises November 30th, paid no rent for October or November 2007, leaving a balance of $1,700.00 due plaintiff, who terminated the tenancy.

Defendants asserted a defense to possession and counterclaims under G.L. c. 239, s 8A, claiming the conditions at the premises were defective. There exists with respect to every residential tenancy, an implied warranty that the premises are fit for human habitation. A landlord is in breach of the warranty if defects exist that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the warranty occurs from the time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the apartment.

Defendants called the health department in June to complain about conditions in the apartment. After inspection, the health department forwarded to plaintiff a written report citing

 

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various Sanitary Code violations in the apartment. (See Defendant’s Trial Exhibit A). The court finds that the defective conditions cited in said inspection report, none of which were caused by defendants, in the aggregate constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, supra. Most of the defective conditions remain, and on September 5th the health department referred the matter to the city’s law department for prosecution.

The court finds that the fair rental value of the premises free of defects is $850.00, and the fair rental value given the defective conditions is $680.00. The value of the premises from June 2007 (taking into account the defects that existed during that period of time) totals $4,080.00. During that same period of time, defendants paid plaintiff $3,400.00 in rent. Accordingly, the balance due plaintiff pursuant to Section 8A is $680.00.

As to all other counterclaims asserted in defendants’ written answer, inadequate evidence was presented thereon, and the court finds in favor of plaintiff on all such claims.

 

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ordered that judgment enter for plaintiff for possession unpaid rent damages in the amount of $680.00 through November 2007, plus court costs.

 

 

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End Of Decision

 

HOUSING COURT

MARGARET T ARIANSEN VS. RICHARD A. SULLIVAN AND TROY T. KELLY

 

WORCESTER COUNTY DIVISION

 

 

Docket # SUMMARY PROCESS NO. 09-SP-589

 

Parties: MARGARET T ARIANSEN VS. RICHARD A. SULLIVAN AND TROY T. KELLY

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: March 25, 2009

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

In this eviction case, plaintiff seeks possession from defendants for non-payment of rent. Defendants filed a written answer, and the court finds as follows: Plaintiff owns a single-family residential dwelling at 8 Ted Lane, Southborough, wherein defendants have resided as tenants since November 2008 subject to a written lease. (See Plaintiffs Trial Exhibit 1). The rent is $1,800.00 due the 15` day of each month. Defendants have not paid any rent since November 2008, leaving a total balance of $7,200.00 in unpaid rent due plaintiff. Plaintiff terminated the tenancy by serving a legally sufficient notice to quit upon defendants on December 20, 2008.

Defendants asserted that defects exist at the premises. There exists with respect to every residential tenancy, an implied warranty of habitability that the premises are fit for human habitation. A landlord is in breach of the warranty where there exist defects that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the implied warranty of habitability occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the premises.

 

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Section 8A provides that, where a tenancy has been terminated for non-payment of rent, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy, or occupancy for breach of warranty….” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to a defense to possession only if: (1) the landlord knew or should have known of the conditions before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the conditions; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated. The landlord is not entitled to recover possession of the premises if the court fords that the amount of rent due the landlord equals or is less than the amount due the tenant on his counterclaims and defenses. If the court finds that the amount of rent due the landlord is greater than the amount due the tenant on his counterclaims and defenses, the landlord is not entitled to recover possession provided the tenant pays the balance due the landlord within seven (7) days of the tenant’s receipt of the court’s decision.

For the most part, defendants’ case centered around the on-site septic system servicing the premises, and the disruption claimed to have been caused by the excavation in connection with its replacement. Before they entered into the lease with plaintiff, defendants were made fully aware of the need to replace the septic system. They also knew that plaintiff intended to begin excavation in the late fall of 2008. Nonetheless, the parties reached agreement as to the terms of the tenancy, and defendants moved into the premises with full knowledge that replacement of the septic system would be imminent.

By way of background, plaintiff first experienced trouble with the septic system in February 2008. A minor breach of the system caused back flow of raw sewerage into the

 

 

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basement. No evidence was presented tending to show that plaintiff was cited for any violations in connection with the septic breach, or any restrictions imposed by the health department in connection therewith. At a cost of approximately $7,000.00, plaintiff hired a professional restoration company to clean up the premises under the supervision of the Southborough Health Department. Plaintiff was not cited for any sanitary violations and the clean-up was completed without undue delay. Additional septic problems came about approximately a week later, and plaintiff instituted a more frequent pumping schedule since that time. Soon thereafter, plaintiff was notified that the system needed to be replaced. After the necessary plans were drawn and approved, excavation began November 17, 2008. Plaintiff had hired a landscaping contractor to install sod on all excavated areas, which was to begin in December 2008, shortly after the septic system replacement was completed. Winter weather conditions in December prohibited the installation of sod as planned, and plans for sod installation were suspended until spring, after the snow melted and the ground thawed.

Throughout the tenancy, and most notably at the time the septic replacement was underway, plaintiff received no reports that any utilities at the premises, including all bathroom and shower facilities, were in any way unusable or compromised. The only complaint expressed by defendants during the excavation involved the location of the new system. Plans for the new septic installation had been approved by the Southborough Health Department on June 4, 2008. No evidence was presented to show that the septic installation was in variance with said plans.

On November 20, 2008 defendants moved their furniture into the premises. They assert that their move was substantially interfered with by the conditions caused as a result of plaintiff’s septic installation, specifically the muddy conditions at or around two doorways leading into the house. The court finds that, although two doorways into the house were inaccessible at the time

 

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defendants moved into the house, three alternate access points remained unencumbered and were adequate for defendants’ move into the house.

The court finds that neither the conditions asserted by defendants in connection with the septic installation nor the conditions resulting from the February 2008 septic breach (which conditions had been remedied by plaintiff eight months before entering into the lease with defendants) constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway_, 363 Mass. 184, 199 (1973). Neither the conditions created by the septic excavation, nor plaintiff’s conduct constituted a breach of defendants’ quiet enjoyment. G.L. c. 186, s. 14.

During the week of March 9, 2009, long after defendants were first in arrears in their rent, and only days prior to trial, defendants first complained to the Southborough Health Department about conditions at the premises. After inspection, the health department issued a written report citing State Sanitary Code violations within the premises. (See Defendants’ Trial Exhibit A).

The court finds that the conditions cited in said report constitute minor code violations and in the aggregate do not constitute a breach of the warranty of habitability. Accordingly, defendants are not entitled to relief under G.L. c. 239, s. 8A.

Defendants also asserted that plaintiff violated the terms of the security deposit statute. A security deposit is money collected by a landlord from a tenant under very strict and specific conditions as outlined by G.L. c. 186, s. 15B. Said statute imposes several requirements upon the landlord with respect to security deposits. One such requirement is that the landlord must deposit the security deposit in a separate interest bearing account in a Massachusetts bank within thirty (30) days of receipt of it. Further, the landlord must produce for the tenant a written statement of the condition of the leased apartment upon receipt of the security deposit, or ten (10) days after

 

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the inception of the tenancy, whichever is later. The statute also requires the landlord to, within thirty (30) days of the security deposit payment, notify the tenant of the name and location of the bank holding the security deposit, the account number and the amount deposited. The security deposit must be protected from the reach of landlord’s creditors. In short, the security deposit funds shall continue to be the property of the tenant, not commingled with other assets of the landlord.

The court finds that defendants paid plaintiff a security deposit of $1,800.00 on October 17, 2008. Plaintiff deposited said security deposit funds on December 18, 2008. Accordingly, it shall be ordered that plaintiff immediately return said security deposit to defendants. As to all other claims asserted in defendants’ written, answer, the evidence presented is insufficient for a finding in favor of defendants. Accordingly, judgment shall issue for plaintiff on all said claims.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial and the reasonable inferences drawn therefrom in light of the governing law, it is ordered that judgment enter in favor of plaintiff (landlord) for possession and unpaid rent damages in the amount of $6,400.00 ($8,200.00 in unpaid rent due plaintiff minus return of defendants’ security deposit) through March 2009, plus court costs.

 

 

 

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End Of Decision

 

HOUSING COURT

CRAIG HOPEWELL VS. ZINA THOMPSON

 

WORCESTER COUNTY DIVISION

 

 

Docket # SUMMARY PROCESS NO. 09-SP-662

 

Parties: CRAIG HOPEWELL VS. ZINA THOMPSON

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: March 22, 2009

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

In this eviction case, plaintiff seeks possession from defendant for non-payment of rent. Defendant filed a written answer, and the court finds as follows: Plaintiff is the landlord ‘at 6 Forestdale Road, Worcester, wherein defendant has resided at Apartment #202 as a tenant-at-will since 1994. The rent is $750.00 due the 1′ day of each month. Defendant paid no rent since November 2008, leaving a balance of $3,000.00 in unpaid rent due plaintiff, who terminated the tenancy.

A leak in defendant’s upstairs bathroom has been causing substantial water damage to the ceiling on the first-floor of her apartment. Plaintiff first learned about the problem in October 2008. Neither the leak nor the ceiling damage has been repaired. Defendant also experienced a water and sewer back-up in her basement, which plaintiff learned about on March 18, 2009. The problem (a blockage in the sewer main) was diagnosed and repaired within a two day period.

The court finds that the leak from the defendant’s upstairs bathroom and the damage to her first-floor ceiling, none of which conditions were caused by defendant, constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass.

 

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184, 199 (1973). Plaintiff knew of said defects before defendant was first in arrears in her rent. Accordingly, defendant established a defense to possession under G.L. c. 239, s. 8A.

The fair rental value of the premises free of defects is the contract rent of $750.00, and the fair rental value given the defective conditions is $562.50. The value of the premises from October 2008 (taking into account the defects that exist) totals $3,375.00. During that same period of time, defendant paid $1,500.00 in rent, leaving a balance of $1,875.00 due plaintiff under Section 8A. As to all other counterclaims asserted in defendant’s written answer, the evidence presented is insufficient for a finding in favor of defendant.

 

ORDER FOR JUDGMENT

 

Judgment shall enter in favor of defendant (tenant) for possession on the condition that within seven (7) days of receipt of this order, defendant deposits with the Clerk of this court the sum of $1,875.00 by bank check or money order payable to Craig Hopewell. If this deposit is made, the Clerk shall immediately release all such funds to plaintiff. If the deposit is not made, judgment shall automatically enter in favor of plaintiff (landlord) for possession and unpaid rent damages in the amount of $1,875.00 through March, 2008, plus court costs.

 

 

 

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End Of Decision

 

HOUSING COURT

GEORGE VALERI VS. IESHIA GIVENS

 

WORCESTER COUNTY DIVISION

 

 

Docket # SUMMARY PROCESS NO. 09-SP-721

 

Parties: GEORGE VALERI VS. IESHIA GIVENS

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: March 20, 2009

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

In this eviction case, plaintiff seeks possession from defendant for non-payment of rent. Defendant filed a written answer, and the court finds as follows: Plaintiff owns 21 Litchfield Street, Worcester, wherein defendant has resided at Apartment #2 as a tenant-at-will since December 5, 2008. The rent is $800.00 due the 1″ day of each month. Defendant paid no rent for February or March 2009, leaving a balance of $1,600.00 in unpaid rent due plaintiff, who terminated the tenancy.

Defendant testified that the conditions of her apartment are defective. She first complained about defective conditions on December 12, 2008 when she called the Worcester Health Department. An

inspection followed, and a written report was sent to plaintiff citing various Sanitary Code violations at the premises. (See Defendant’s Trial Exhibit A). Plaintiff knew or should have known about said defective conditions when he first rented the apartment to defendant in December 2008.

The court finds that the conditions cited by the Worcester Health Department, none of which conditions were caused by

 

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defendant, constitute a breach of the implied warranty of

habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). Plaintiff knew or should have known of said defects before defendant was in arrears in her rent. Accordingly, defendant established a defense to possession under G.L. c. 239, s. 8A.

The fair rental value of the premises free of defects is the contract rent of $800.00, and the fair rental value given the defective conditions is $600.00. The value of the premises from December 2008 (taking into account the existing defects that exist) totals $2,400.00. During that same period of time, defendant paid plaintiff $1,600.00 in rent, leaving a balance of $800.00 due plaintiff under Section 8A. As to all other counterclaims asserted in defendant’s written answer, the evidence presented is insufficient for a finding in favor of defendant.

 

ORDER FOR JUDGMENT

 

Judgment shall enter in favor of defendant (tenant) for possession on the condition that within seven (7) days of receipt of this order, defendant deposits with the Clerk of this court the sum of $800.00 by bank check or money order payable to George Valeri. If this deposit is made, the Clerk shall immediately release all such funds to plaintiff. If the deposit is not made, judgment shall automatically enter in favor of plaintiff (landlord) for possession and unpaid rent damages in the amount of $800.00 through March, 2008, plus court costs.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

CHERYL PRICE AND LARRY PRICE VS. JAMES OPINSKY AND SUZANNE OPINSKY

 

WORCESTER COUNTY DIVISION

 

 

Docket # SUMMARY PROCESS NO. 09-SP-459

 

Parties: CHERYL PRICE AND LARRY PRICE VS. JAMES OPINSKY AND SUZANNE OPINSKY

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: March 3, 2009

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

In this eviction case, plaintiffs seek possession of the premises from defendants for non-payment of rent. Defendants filed a written answer that included defenses and counterclaims against plaintiffs, and the court finds as follows: Plaintiffs own a single family residential dwelling at 188 Cordaville Road, Southborough, wherein defendants and their three minor children have resided since November 1, 2008 as tenants-at-will. The rent is $1,995.00 due the 1st day of each month. Defendants have paid no rent for the months of December 2008, January 2009 and February 2009, leaving a total balance of $5,985.00 in unpaid rent due plaintiffs, who terminated the tenancy.

Defendants testified about defective conditions at the premises. There exists with respect to every residential tenancy, an implied warranty of habitability that the premises are fit for human habitation. A landlord is in breach of the warranty where there exist defects that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the implied warranty of habitability occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the apartment. G.L. c. 239, s. 8A.

Under Section 8A, the landlord is not entitled to recover possession of the premises if the court finds that the amount of rent due the landlord equals or is less than the amount due the tenant on his counterclaims and defenses. If the court finds that the amount of rent due the landlord is greater than the amount due the tenant on his counterclaims and defenses, the landlord

 

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is not entitled to recover possession provided the tenant pays the balance due the landlord within seven (7) days of the tenant’s receipt of the court’s decision.

On or about December 13, 2008, a major ice storm hit central Massachusetts causing downed trees and power outages throughout the region. The storm caused severe ice damming along the roof line at defendants’ rented premises. The ice dams caused water to leak into the house, particularly in the second-floor bedroom area, causing water damage and staining along the walls and ceilings. At the time of this storm, defendants were already in arrears in their rent.

Following the December 13`h ice storm and its aftermath, defendants complained to the Southborough Health Department about defective conditions at the premises. On December 31, 2008, Southborough Health Agent Dennis Costello conducted an inspection of the premises, and prepared a written inspection report dated January 15, 2009, citing a number of Sanitary Code violations therein. (See Defendants’ Trial Exhibit B).

The court finds that the conditions cited in said inspection report, none of which were caused by defendants, in the aggregate constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). G.L. c. 239, s.

8A. Said conditions did not constitute a breach of quiet enjoyment under G.L. c. 186, s. 14.

The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises free of defects and the fair rental value of the premises during the period that the defective condition existed. Boston Housing Authority v. Hemingway, supra; Haddad v. Gonzalez, 410 Mass. 855, 872 (1991). The court finds that the fair rental value of the premises free of defects is the contract rent of $1,995.00. The fair rental value of the premises given the defective conditions cited is $1,695.75.

The fair rental value of the premises from November 2008 (given the defects cited) is $6,783.00. During that same period of time defendants paid $1,995.00 in rent, leaving a total balance of $4,788.00 in unpaid rent due plaintiff in accordance with Section 8A.

As to defendants’ claim that plaintiffs violated the provisions of G.L. c. 93A, the court finds that the evidence presented is insufficient for a finding that plaintiffs are subjected to the provisions of said statute. Further, plaintiffs’ conduct with respect to defendants was neither unfair, deceptive, willful or knowing. Accordingly, plaintiffs are entitled to judgment on said claims.

 

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Defendants assert that they paid a security deposit at the inception of their tenancy, and that plaintiff failed to handle the deposit in accordance with state law. A security deposit is money collected by a landlord from a tenant under very strict and specific conditions as outlined by G.L. c. 186, s. 15B. Said statute imposes several requirements on the landlord with respect to security deposits. One such requirement is that the landlord must deposit the security deposit in a separate interest bearing account in a Massachusetts bank within thirty (30) days of receiving it. Further, the landlord must produce for the tenant a written statement of the condition of the leased premises upon receipt of the security deposit, or ten (10) days after the inception of the tenancy, whichever is later. The statute also requires the landlord to, within thirty (30) days of the security deposit payment, notify the tenant of the name and location of the bank holding the security deposit, the account number and the amount deposited. The security deposit must be protected from the reach of landlord’s creditors. In short, the security deposit funds shall continue to be the property of the tenant, not commingled with other assets of the landlord.

The court finds that defendants made no prior claims as to their security deposit, and no prior demands had been made for the return of said deposit. The first mention of a security deposit violation was made by defendants on February 23, 2009. The court finds that plaintiffs returned said security deposit funds to defendants on February 26, 2009, and that defendants are not entitled to any further remedy under the security deposit statute. G.L. c. 186, s. 15B.

Defendants asserted that plaintiffs are retaliating against them through this eviction action because defendants complained about defective conditions at the premises. Defendants seek relief under G.L. c. 239, s. 2A and G.L. c. 186, s. 18. The court finds the legal presumption of retaliation was not established by defendants.

Plaintiffs drafted and mailed the notice to quit to defendants on January 10, 2009, at which time plaintiffs were not on notice as to any rent withholding by defendants for any reason. Further, although defendants had complained to the Southborough Health Department in December 2008, plaintiffs had no knowledge of that until after January 15, 2009, when plaintiffs received the town’s written inspection report citing the various Sanitary Code violations. The court finds that plaintiffs commenced this eviction action solely because of defendants’ failure to pay their rent, and that plaintiffs would have commenced this action at the same time and in the same manner even if no conditions-based complaints had been made by defendants. Plaintiffs did not engage in any acts of reprisal, and defendants are not

 

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entitled to judgment on said claim. G.L. c. 239 s. 2A, G.L. c. 186, s. 18.

As to all other claims and defenses asserted in defendants’ written answer, the evidence presented at trial is insufficient for a finding in favor of defendants. Accordingly, plaintiffs are entitled to judgment on all such claims.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ordered that judgment enter for defendants (tenants) for possession pursuant to the fifth (5th) paragraph of G.L. c 239, s. 8A, on the condition that within seven (7) days of their receipt of this order, defendants deposit with the Clerk of this court the sum of $4,788.00 by bank check or money order made payable to plaintiffs. If this deposit is made, the Clerk shall immediately release all such funds held by the court to plaintiffs. If the deposit is not made as prescribed, judgment shall automatically enter in favor of plaintiffs for possession and damages ‘in the amount of $4,788.00 through February 2009, plus court costs.

 

 

 

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End Of Decision

HOUSING COURT

DELIA CONNAUGHTON VS. ANTOINETTE PLOUDE-COTE

 

WORCESTER COUNTY DIVISION

 

 

Docket # SUMMARY PROCESS NO. 08-SP-4206

 

Parties: DELIA CONNAUGHTON VS. ANTOINETTE PLOUDE-COTE

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: February 26, 2009

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

In this eviction case, plaintiff seeks possession of the premises from defendant for non-payment of rent. Defendant filed a written answer, and the court finds as follows: Plaintiff owns a single-family home at 67 Lakeview Drive, Leicester, wherein defendant has resided as a tenant-at-will since July 1, 2008. The rent is $600.00 due the first of each month. Defendant paid no rent for July, August, November, December (2008), January or February (2009). Defendant paid $500.00 toward rent for September 2008 and $350.00 toward October 2008 rent, leaving a total balance of $3,950.00 in unpaid rent due plaintiff, who terminated the tenancy.

There exists with respect to every residential tenancy, an implied warranty of habitability that the premises are fit for human habitation. A landlord is in breach of the warranty where there exist defects that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the implied warranty of habitability occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the apartment. G.L. c. 239, s. 8A. Section 8A provides that, where a tenancy has been terminated for non-payment of rent, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy, or occupancy for breach of warranty….” The landlord is not entitled to recover possession of the premises if the court finds that the amount of rent due the landlord equals or is less than the amount due the tenant on his counterclaims and defenses.

On February 4, 2009, long after falling behind in her rent, defendant complained about

 

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conditions of the premises to the Leicester Health Department, which inspected the premises on February 13th and cited a number of Sanitary Code violations therein. (See Defendant’s Trial Exhibit D). Plaintiff received no inspection reports by the day of trial, nor has

she received any prior complaints or violations from the health department. The only conditions-based complaint ever made to plaintiff by defendant was on December 15, 2008, two days after a severe ice storm caused massive power outages throughout central Massachusetts. Defendant lost power due to said ice storm, which disabled the electric-powered sump pump, resulting in basement flooding that caused a breakdown of the furnace. Plaintiff repaired the furnace on December 19`h, four days after defendant first complained about it. The court shall credit defendant $200.00 for the interruption of heat at the premises from December 13th through December 19th.

After another furnace malfunction at the end of January, defendant hired McDonald Htg. & A/C Co., Inc., who replaced the cad cell relay and the nozzle at a cost of $365.85 paid by defendant. The court shall credit defendant with said costs. (See Defendant’s Trial Exhibit C). Plaintiff was not aware of the January furnace malfunction until after it was repaired.

Most of the violations cited by the Leicester Health Department were caused by defendant, who has undertaken a major overhaul of the interior of the premises. (See Plaintiffs Trial Exhibit #3). The premises is currently in a state of substantial renovation (caused solely by defendant) which does not reflect the habitable condition that existed at the premises when defendant took occupancy in July 2008. As to all defects cited in said inspection report that are unrelated to defendant’s ongoing restoration efforts, plaintiff was never made aware of any of said defects. Accordingly, defendant is not entitled to relief under Section 8A.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial and the reasonable inferences drawn therefrom in light of the governing law, it is ordered that judgment enter in favor of plaintiff (landlord) for possession and unpaid rent damages in the amount of $3,384.15, plus costs.

 

 

 

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End Of Decision

 

HOUSING COURT

DONALD HAFER AND PATRICIA HAFER VS. DANIEL KASPARIAN AND STEPHANIE SHOLTZ

 

WORCESTER COUNTY DIVISION

 

 

Docket # SUMMARY PROCESS NO. 09-SP-369

 

Parties: DONALD HAFER AND PATRICIA HAFER VS. DANIEL KASPARIAN AND STEPHANIE SHOLTZ

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: February 12, 2009

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

In this eviction case, plaintiffs seek possession from defendants for non-payment of rent. Defendants filed a written answer, and the court finds as follows: Plaintiffs own 149 Providence Street, Worcester, wherein defendants have resided as tenants at Apartment #3 since October 2007. The rent is $1,000.00 due the 1St day of each month. Defendants have a long history of sporadic rent payments, and have been carrying an unpaid rent balance since April 2007. They currently owe a total of $2,450.00 in unpaid rent to plaintiff, who terminated the tenancy.

 

Defendants said defects exist at the apartment. They first complained about such conditions on July 28, 2008 when they called Worcester Health Department officials, who inspected the premises on August 5, 2008 and sent a written report to plaintiffs citing various Sanitary Code violations therein. (See Defendants’ Trial Exhibit A). The court finds that the conditions cited in said report, none of which were caused by defendants, constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). Plaintiffs repaired all said defects by August 14, 2008. No other defective conditions have been brought to plaintiffs’ attention since, and the court does not credit

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defendants’ testimony to the contrary.

Plaintiffs first learned of said defective conditions when they received the August 5th inspection report from the health department. Because defendants were already behind in their rent at that time, defendants are not entitled to a defense to possession. G.L. c. 239, s. 8A.

The fair rental value of the premises free of defects is the contract rent of $1,000.00. The fair rental value given the defective conditions is $750.00. The value of the premises from August 2008 through February 2009 (considering the defects that existed in August 2008) totals $6,750.00. During that same period of time, defendants paid $4,550.00 in rent, leaving a balance of $2,200.00 due plaintiffs under Section 8A. As to all other claims asserted in defendants’ written answer, the evidence presented in insufficient for a finding in favor of defendants.

 

ORDER FOR JUDGMENT

 

Judgment shall enter in favor of plaintiff (landlord) for possession and unpaid rent damages in the amount of $2,200.00 through February 2009, plus court costs.

 

 

 

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End Of Decision

 

HOUSING COURT

EDIBERTO SANTIAGO VS. LUIS GERARDO

 

WORCESTER COUNTY DIVISION

 

 

Docket # SUMMARY PROCESS NO. 08-SP-4697

 

Parties: EDIBERTO SANTIAGO VS. LUIS GERARDO

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: February 5, 2009

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

In this eviction case, plaintiff seeks possession of the premises from defendant for non-payment of rent. Defendant filed a written answer that included statutory defenses and counterclaims against plaintiff, and the court finds as follows: Plaintiff owns an multi-family residential dwelling at 4 Wellington Street, Worcester, wherein defendant has resided as a tenant-at-will at Apartment #8 since April 2, 2006. The rent is $800.00 due the Pt day of each month. Defendant has paid no rent since July 2008, leaving a total balance of $4,800.00 in unpaid rent due plaintiff. On October 9, 2008, plaintiff terminated the tenancy by serving defendant with a legally sufficient fourteen-day notice to quit for non-payment of rent.

Defendant asserted that the conditions of his apartment were defective. There exists with respect to every residential tenancy, an implied warranty of habitability that the premises are fit for human habitation. A landlord is in breach of the warranty where there exist defects that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the implied warranty of habitability occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the apartment. G.L. c. 239, s. 8A.

Section 8A provides that, where a tenancy has been terminated for non-payment of rent, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy, or occupancy for breach of warranty….” Where the defense or counterclaim is based upon the condition of the premises or

 

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services provided to the premises by the landlord, the tenant is entitled to a defense to possession only if: (1) the landlord knew or should have known of the conditions before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the conditions; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated. The landlord is not entitled to recover possession of the premises if the court finds that the amount of rent due the landlord equals or is less than the amount due the tenant on his counterclaims and defenses. If the court finds that the amount of rent due the landlord

is greater than the amount due the tenant on his counterclaims and defenses, the landlord is not entitled to recover possession provided the tenant pays the balance due the landlord within seven (7) days of the tenant’s receipt of the court’s decision.

After receiving plaintiff’s notice to quit, defendant began complaining to the Worcester Health Department about the conditions in his apartment. He made no prior complaints to either the health department or plaintiff. As a result of defendant’s complaints, the health department inspected the premises, and plaintiff was cited for various Sanitary Code violations therein. (See Defendant’s Trial Exhibit A). All said defects were repaired by December 8, 2008:

The court finds that the defective conditions cited by the Worcester Health Department, none of which were caused by defendant, in the aggregate constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, supra, and a breach of quiet enjoyment entitling defendant to the greater of three months rent or actual damages, plus a reasonable attorney fee. G.L. c. 186, s. 14.

Defendant also asserted that plaintiff did not handle his security deposit in accordance with state law. A security deposit is money collected by a landlord from a tenant under very strict and specific conditions as outlined by G.L. c. 186, s. 15B. Said statute imposes several requirements upon the landlord with respect to security deposits. One such requirement is that the landlord must deposit the security deposit in a separate interest bearing account in a Massachusetts bank within thirty (30) days of receipt of it. Further, the landlord must produce for the tenant a written statement of the condition of the leased apartment upon receipt of the security deposit, or ten (10) days after the inception of the tenancy, whichever is later. The statute also requires the landlord to, within thirty (30) days of the security deposit payment, notify the tenant of the name and location of the bank holding the security deposit, the account

 

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number and the amount deposited. The security deposit must be protected from the reach of landlord’s creditors. In short, the security deposit funds shall continue to be the property of the tenant, not commingled with other assets of the landlord.

The court finds that defendant paid plaintiff a security deposit in the amount of $400.00 at the inception of the tenancy, and that plaintiff has not complied with the security deposit law in any way. Accordingly, defendant is entitled to three (3) times the amount of the security deposit ($1,200.00) plus 5% interest thereon from April 2006 ($56.65), plus a reasonable attorney fee. G.L. c. 186, s. 15B. Defendant is also entitled to statutory damages ($25.00) under G.L. c. 93A.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial and the reasonable inferences drawn therefrom in light of the governing law, it is ordered that judgment enter in favor of defendant (tenant) for possession pursuant to the fifth (5th)

paragraph,of G.L. c 239, s. 8A, on the condition that within seven (7) days of his receipt of this order, defendant deposits with the Clerk of this Court the sum of $1,118.35 ($4,800.00 in unpaid rent due plaintiff, minus $2,400.00 due defendant under G.L. c. 186, s. 14, minus $1,256.65 due defendant under G.L. c. 186, s. 15B, minus $25.00 due defendant under G.L. c. 93A) by bank check or money order made payable to Ediberto Santiago. If this deposit is made, the Clerk shall immediately release all such funds held by the court to plaintiff. If the deposit is not made as prescribed, judgment shall automatically enter in favor of plaintiff (landlord) for possession and unpaid rent damages of $1,118.35 through January 2009, plus court costs. It is further ordered that plaintiff pay directly to defendant’s attorney a reasonable fee, which shall be determined by the court after defendant’s filing of a motion and fee affidavit.

 

 

 

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End Of Decision

 

HOUSING COURT

DANIEL J. LARGEY VS. BETTE-JANE MALLOZZI, ET AL.

 

WORCESTER COUNTY DIVISION

 

 

Docket # SUMMARY PROCESS NO. 08-SP-2093

 

Parties: DANIEL J. LARGEY VS. BETTE-JANE MALLOZZI, ET AL.

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: February 10, 2009

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

In this eviction case, plaintiff seeks possession of the premises from defendants for non-payment of rent. Defendants filed a written answer that included statutory defenses and counterclaims against plaintiff, and the court finds as follows: Plaintiff owns a single-family home with an unoccupied in-law apartment at 63 State Street, Marlborough, wherein defendants have resided as tenants-at-will since July 15, 2007. The rent is $1,100.00 (including heat) due the 15′ day of each month. Plaintiff claims that defendants paid a mere $375.00 for rent from December 2007, through May 2008.

(See Plaintiff’s Trial Exhibit #2). On cross examination, plaintiff acknowledged receiving additional rent payments of $1,425.00 from defendants during that same period of time. Defendants presented no further evidence of any additional rental payments made. The court finds that the total balance of unpaid rent due plaintiff is $4,800.00 through May 14, 2008. On May 21, 2008, plaintiff terminated the tenancy by serving defendant with a legally sufficient fourteen-day notice to quit for non-payment of rent.

There exists with respect to every residential tenancy, an implied warranty of habitability that the premises are fit for human habitation. A landlord is in breach of the warranty where there exist defects that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the implied warranty of habitability occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the apartment. G.L. c. 239, s. 8A. Section 8A provides that, where a tenancy has been terminated for non-payment of

 

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rent, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy, or occupancy for breach of warranty….” The landlord is not entitled to recover possession of the premises if the court finds that the amount of rent due the landlord equals or is less than the amount due the tenant on his counterclaims and defenses.

On April 27, 2008, after they were already in arrears in their rent, defendants complained in writing to plaintiff about insufficient heat. (See Defendants’ Trial Exhibit C). The Marlborough Health Department inspected the premises and cited plaintiff for insufficient heat on May 9, 2008. (See Defendants’ Trial Exhibit E). Plaintiff has not received any other such complaints or violations from the health department, and the court does not credit defendants’ testimony as to additional defective conditions within the premises.

The premises is heated by a gas-fired furnace. In July 2007, plaintiff stopped paying gas bills he received from N-Star relative to the rented premises. In October 2007, after ample notice to plaintiff, N-Star shut off the gas service at the premises for non-payment. Seventeen notices were sent to plaintiff, none of which resulted in plaintiff’s payment of any gas bills. The gas service was reinstated by defendants, who transferred the gas service into their names and began paying the gas bills. No written agreement obligating defendants to pay for utilities exists.

The court finds that the insufficient heat condition that defendants complained about in April 2008, and which Marlborough health officials cited plaintiff for in May 2008, together with plaintiffs failure to pay for the gas service from July 2007 to October 2007 resulting in the termination of gas service, constituted a breach of the implied warranty of habitability, Boston Housing Authority v. Hemingway, supra, and a breach of defendants’ quiet enjoyment of the premises, which entitles defendants to three month’s rent damages, plus a reasonable attorney fee. G.L. c. 239, s. 8A G.L. c. 186, s. 14.

Defendants also asserted that plaintiff did not handle their

security deposit in accordance with state law. A security deposit is money collected by a landlord from a tenant under very strict and specific conditions as outlined by G.L. c. 186, s. 15B. Said statute imposes several requirements upon the landlord with respect to security deposits. One such requirement is that the landlord must deposit the security deposit in a separate interest bearing account in a Massachusetts bank within thirty (30) days of receipt of it. Further, the landlord must produce

 

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for the tenant a written statement of the condition of the leased apartment upon receipt of the security deposit, or ten (10) days after the inception of the tenancy, whichever is later. The statute also requires the landlord to, within thirty (30) days of the security deposit payment, notify the tenant of the name and location of the bank holding the security deposit, the account number and the amount deposited. Security deposits must be protected from the reach of landlord’s creditors. In short, security deposits shall continue to be the property of the tenant, not commingled with other assets of the landlord.

On July 13, 2007, a security deposit of $1,100.00 was paid directly to plaintiff on behalf of defendants by Metrowest Outreach Connection, Inc. Plaintiff did not comply with the security deposit law in any way, entitling defendants to three (3) times the amount of the security deposit ($3,300.00) plus 5% interest thereon from July 2007 through December 2008 ($82.50), plus a reasonable attorney fee, plus statutory damages of $25.00. G.L. c. 186, s. 15B. G.L. c. 93A.

As to all other claims asserted in defendants’ written answer, the evidence presented is insufficient for a finding in defendants’ favor. Accordingly, judgment shall enter for plaintiff on all said claims. The court finds that $2,500.00 is a reasonable attorney fee payable by plaintiff to defendants’ counsel.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial and the reasonable inferences drawn therefrom in light of the governing law, it is ordered that judgment enter in favor of defendants (tenants) for possession and damages of $1,907.50, plus attorney fees of $2,500.00 to be paid by plaintiff directly to defendants’ counsel.

 

 

 

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End Of Decision

 

HOUSING COURT

THOMAS WINGATE VS. JENNIFER CARR

 

WORCESTER COUNTY DIVISION

 

 

Docket # SUMMARY PROCESS NO. 08-SP-4734

 

Parties: THOMAS WINGATE VS. JENNIFER CARR

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: February 5, 2009

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

In this eviction case, plaintiff seeks possession from defendant for non-payment of rent, and the court finds as follows: Plaintiff owns 11 Diamond Street, Worcester, wherein defendant has resided as a tenant at Apartment #2 since October 2008. The rent is $750.00 due the 1st day of each month. Defendant paid $650.00 toward November 2008 rent and nothing since, leaving a balance of $2,350.00 in unpaid rent due plaintiff, who terminated the tenancy.

Defendant called the Worcester Health Department on December 2, 2008 to complain about conditions at her apartment. After inspection, health officials sent a violation notice to plaintiff citing various Sanitary Code violations at the premises. (See Defendant’s Exhibit A). Plaintiff, who had no prior knowledge of said conditions, completed all repairs by December 23, 2008. No complaints have been communicated to him since.

The court finds that the conditions cited by the health department, none of which were caused by defendant, constitute a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). Plaintiff first learned of said conditions after defendant was first in arrears in her rent. Accordingly, defendant did not establish a defense to possession under G.L. c. 239, s. 8A. However, defendant is due a rent reduction of $250.00 for said defects that existed during the month of December 2008, leaving a total balance of $2,100.00 in unpaid rent owed to plaintiff under Section 8A.

 

ORDER FOR JUDGMENT

 

Judgment shall enter in favor of plaintiff (landlord) for possession and unpaid rent damages of $2,100.00 through February 2009, plus court costs.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

EDIBERTO SANTIAGO VS. LUIS GERARDO

 

WORCESTER COUNTY DIVISION

 

 

Docket # SUMMARY PROCESS NO. 08-SP-4697

 

Parties: EDIBERTO SANTIAGO VS. LUIS GERARDO

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: February 5, 2009

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

In this eviction case, plaintiff seeks possession of the premises from defendant for non-payment of rent. Defendant filed a written answer that included statutory defenses and counterclaims against plaintiff, and the court finds as follows: Plaintiff owns an multi-family residential dwelling at 4 Wellington Street, Worcester, wherein defendant has resided, as a tenant-at-will at Apartment #8 since April 2, 2006. The rent is $800.00 due the 1st day of each month. Defendant has paid no rent since July 2008, leaving a total balance of $4,800.00 in unpaid rent due plaintiff. On October 9, 2008, plaintiff terminated the tenancy by serving defendant with a legally sufficient fourteen-day notice to quit for non-payment of rent.

Defendant asserted that the conditions of his apartment were defective. There exists with respect to every residential tenancy, an implied warranty of habitability that the premises are fit for human habitation. A landlord is in breach of the warranty where there exist defects that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the implied warranty of habitability occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the apartment. G.L. c. 239, s. 8A.

Section 8A provides that, where a tenancy has been terminated for non-payment of rent, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy, or occupancy for breach of warranty….” Where the defense or counterclaim is based upon the condition of the premises or

 

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services provided to the premises by the landlord, the tenant is entitled to a defense to possession only if: (1) the landlord knew or should have known of the conditions before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the conditions; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated. The landlord is not entitled to recover possession of the premises if the court fords that the amount of rent due the landlord equals or is less than the amount due the tenant on his counterclaims and defenses. If the court fords that the amount of rent due the landlord is greater than the amount due the tenant on his counterclaims and defenses, the landlord is not entitled to recover possession provided the tenant pays the balance due the landlord within seven (7) days of the tenant’s receipt of the court’s decision.

After receiving plaintiff’s notice to quit, defendant began complaining to the Worcester Health Department about the conditions in his apartment. He made no prior complaints to either the health department or plaintiff. As a result of defendant’s complaints, the health department inspected the premises, and plaintiff was cited for various Sanitary Code violations therein. (See Defendant’s Trial

Exhibit A). All said defects were repaired by December 8, 2008.

The court fords that the defective conditions cited by the Worcester Health Department, none of which were caused by defendant, in the aggregate constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, supra, and a breach of quiet enjoyment entitling defendant to the greater of three months rent or actual damages, plus a reasonable attorney fee. G.L. c. 186, s. 14.

Defendant also asserted that plaintiff did not handle his security deposit in accordance with state law. A security deposit is money collected by a landlord from a tenant under very strict and specific conditions as outlined by G.L. c. 186, s. 15B. Said statute imposes several requirements upon the landlord with respect to security deposits. One such requirement is that the landlord must deposit the security deposit in a separate interest bearing account in a Massachusetts bank within thirty (30) days of receipt of it. Further, the landlord must produce for the tenant a written statement of the condition of the leased apartment upon receipt of the security deposit, or ten (10) days after the inception of the tenancy, whichever is later. The statute also requires the landlord to, within thirty (30) days of the security deposit payment, notify the tenant of the name and location of the bank holding the security deposit, the account

 

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number and the amount deposited. The security deposit must be protected from the reach of landlord’s creditors. In short, the security deposit funds shall continue to be the property of the tenant, not commingled with other assets of the landlord.

The court finds that defendant paid plaintiff a security deposit in the amount of $400.00 at the inception of the tenancy, and that plaintiff has not complied with the security deposit law in any way. Accordingly, defendant is entitled to three (3) times the amount of the security deposit ($1,200.00) plus 5% interest thereon from April 2006 ($56.65), plus a reasonable attorney fee. G.L. c. 186, s. 15B. Defendant is also entitled to statutory damages ($25.00) under G.L. c. 93A.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial and the reasonable inferences drawn therefrom in light of the governing law, it is ordered that judgment enter in favor of defendant (tenant) for possession pursuant to the fifth (5”’) paragraph of G.L. c 239, s. 8A, on the condition that within seven (7) days of his receipt of this order, defendant deposits with the Clerk of this Court the sum of $1,118.35 ($4,800.00 in unpaid rent due plaintiff, minus $2,400.00 due defendant under G.L. c. 186, s. 14, minus $1,256.65 due defendant under G.L. c. 186, s. 15B, minus $25.00 due defendant under G.L. c. 93A) by bank check or money order made payable to Ediberto Santiago. If this deposit is made, the Clerk shall immediately release all such funds held by the court to plaintiff. If the deposit is not made as prescribed, judgment shall automatically enter in favor of plaintiff (landlord) for possession and unpaid rent damages of $1,118.35 through January 2009, plus court

costs. It is further ordered that plaintiff pay directly to defendant’s attorney a reasonable fee, which shall be determined by the court after defendant’s filing of a motion and fee affidavit.

 

 

 

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End Of Decision

 

HOUSING COURT

LORIE SPAULDING Plaintiff VS. STELLA CASTILLO-MOLINARI AND NESTOR ORTIZ Defendants

 

WORCESTER, ss.

 

 

Docket # SUMMARY PROCESS NO. 08-SP-4806

 

Parties: LORIE SPAULDING Plaintiff VS. STELLA CASTILLO-MOLINARI AND NESTOR ORTIZ Defendants

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: January 14, 2009

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

In this eviction case, plaintiff seeks possession of the premises from defendants for non-payment of rent. No written answer was filed, and the court finds as follows: Cougar Capital owns 94-96 Daniels Street, Fitchburg, wherein defendants have resided at the top-floor left apartment (#4-L) as tenants-at-will since October 2007. The rent is $650.00 due the 1″ day of each month, and does not include utilities, which are the responsibility of defendants. In August, plaintiff became property manager and landlord. She was hired by Cougar Capital to negotiate tenancies, collect rents, make repairs and generally manage the property. Defendants paid no rent since August 2008, leaving a total balance of $3,250.00 in unpaid rent due plaintiff, who terminated the tenancy.

 

Defendants testified about defective conditions at the premises. There exists with respect to every residential tenancy, an implied warranty of habitability that the premises are fit for human habitation. A landlord is in breach of the warranty where there exist defects that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the implied warranty of habitability occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the apartment. G.L. c. 239, s. 8A.

Under Section 8A, the landlord is not entitled to recover possession of the premises if the court finds that the amount of rent due the landlord equals or is less than the amount due the tenant on his counterclaims and defenses. If the court finds that the amount of rent due the

 

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landlord is greater than the amount due the tenant on his counterclaims and defenses, the landlord is not entitled to recover possession provided the tenant pays the balance due the landlord within seven (7) days of the tenant’s receipt of the court’s decision.

Defendants’ apartment is infested with cock roaches, and a pipe under the kitchen sink has been leaking for months. Further, numerous electrical outlets in the premises are defective. None of the bedroom outlets are working at all, and defendants have to run extension cords from other areas of the apartment into the bedrooms for electrical power and lighting. It is unclear as to if and when defendants might have informed plaintiff about said defects. Nonetheless, plaintiff inspected the premises on or about September 1, 2008, after Cougar Capital bought the property.

Defendants testified that they had no hot water for a month in the fall. Plaintiff emphasized that the water facilities are in good working order, and that the hot water (which is heated by natural gas) was interrupted only because defendants failed to pay their gas bill. Plaintiff testified that the electrical and gas service is the responsibility of defendants, and that there is no written agreement between the parties to that effect. The court credits plaintiff’s testimony on this point.

The court finds that the interruption of hot water, given that defendants are responsible for the gas service, did not constitute a breach of the warranty of habitability on the part of plaintiff. As to all other defective conditions cited above, the court finds that said conditions in the aggregate constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). G.L. c. 239, s. 8A. Plaintiff knew or should have known of said conditions on or about September 1, 2008 when the premises was inspected.

The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises free of defects and the fair rental value of the premises during the period that the defective condition existed. Boston Housing Authority v. Hemingway, supra; Haddad v. Gonzalez, 410 Mass. 855, 872 (1991). The court finds that the fair rental value of the premises free of defects is the contract rent of $650.00. The fair

rental value of the premises given the defective conditions that exist is $422.50. The fair rental value of the premise from September 1, 2008, when plaintiff first learned about the defective conditions is $2,112.50. During that same period of time, defendants paid no rent to plaintiff,

 

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leaving a balance of $2,112.50 in unpaid rent due plaintiff under Section 8A.

The court finds that plaintiff held defendants responsible for utilities without a written agreement to that effect, which constituted a violation of G.L. c. 186, s. 14, entitling defendants to the greater of three months rent or actual damages, plus a reasonable attorney fee. No appearance was filed for defendants, and no evidence was presented as to defendants’ actual damages. Accordingly, the court shall award defendants three months rent damages of $1,950.00. G.L. c. 186, s. 14.

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ordered that judgment enter for defendants for possession pursuant to the fifth (5th) paragraph of G.L. c 239, s. 8A, on the condition that within seven (7) days of receipt of this order, defendants deposit with the Clerk of this court by bank check or money order payable to Lorie Spaulding in the amount of $162.50 ($3,250.00 in unpaid rent claimed by plaintiff, minus $1,137.50 due defendants under G.L. c. 239, s. 8A, minus $1,950.00 for plaintiff’s violation of G.L. c. 186, s. 14). If this deposit is made, the Clerk shall immediately release all such funds held by the court to plaintiff. If the deposit is not made as prescribed, judgment shall automatically enter in favor of plaintiff (landlord) for possession and damages in the amount of $162.50 through January, 2009, plus court costs.

 

 

 

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End Of Decision

 

HOUSING COURT

NORAH OKERE Plaintiff VS. LOUISE BURRELL Defendant

 

WORCESTER, ss.

 

 

Docket # SUMMARY PROCESS NO. 08-SP-4325

 

Parties: NORAH OKERE Plaintiff VS. LOUISE BURRELL Defendant

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: December 18, 2008

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

In this eviction case, plaintiff seeks possession from defendant for non-payment of rent. Defendant filed a written answer, and the court finds as follows: Plaintiff owns 157 Providence Street, Worcester, wherein defendant has resided at Apartment #2 on the second floor as a tenantat-will since 2001. The rent is $1,000.00 due the 1st day of each month. Defendant owes plaintiff $1,000.00 for each of the months of January 2008 through December 2008, leaving a balance of $12,000.00 in unpaid rent due plaintiff, who terminated the tenancy.

Defendant testified about defective conditions at the premises. There exists with respect to every residential tenancy, an implied warranty of habitability that the premises are fit for human habitation. A landlord is in breach of the warranty where there exist defects that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199

(1973). A breach of the implied warranty of habitability occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the apartment.

On November 17, 2008, the Worcester Health Department inspected the premises, and delivered a written report to plaintiff citing a number of Sanitary Code violations within the premises. (See Defendant’s Trial Exhibit A). The court finds that the conditions cited by the health department, none of which were caused by defendant, in the aggregate constituted a breach

 

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of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). Plaintiff first learned about said conditions in September 2008, when the patties met at the premises. At that time, defendant was already in arrears in her rent. Accordingly, defendant has not established a defense to possession under G.L. c. 239, s. 8A. The court finds, however, that defendant is entitled to a rent abatement from the time plaintiff was informed by defendant about said defective conditions.

The court finds that the fair rental value of the premises free of defects is $1,000.00, and the fair rental value given the defective conditions is $500.00. The value of the premises from January 1, 2008 (taking into account the defects that existed in the premises since September 2008) totals $10,000.00. During that same period of time, defendant paid no rent to plaintiff. Accordingly, the balance of rent due plaintiff under Section 8A is $10,000.00. As to all other counterclaims asserted in defendant’s written answer, the evidence presented in insufficient for a finding in favor of defendant.

ORDER FOR JUDGMENT

Judgment shall enter in favor of plaintiff (landlord) for possession and unpaid rent damages in the amount of $10,000.00 through December, 2008, plus court costs.

 

 

 

 

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End Of Decision

 

HOUSING COURT

ELIZABETH LeBLANC Plaintiff VS. KELLI BLANCHARD AND SHANE HOWARD Defendants

 

WORCESTER, ss.

 

 

Docket # SUMMARY PROCESS NO. 08-SP-4348

 

Parties: ELIZABETH LeBLANC Plaintiff VS. KELLI BLANCHARD AND SHANE HOWARD Defendants

 

Judge: /s/TIMOTHY V. SULLIVAN

ASSOCIATE JUSTICE

 

Date: December 10, 2008

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

In this eviction case, plaintiff seeks possession of the premises from defendants for non-payment of rent. No written answer was filed, and the court finds as follows: Plaintiff owns 434 Crescent Street, Athol, wherein defendants reside as tenants at Apartment #4. The rent is $650.00 due the first day of each month. Defendants paid no rent since August 2008, leaving a total balance of $2,600.00 due plaintiff, who terminated the tenancy.

The court finds that the flooring in the bathroom was rotted, and needed repair. Plaintiff was first informed of the problem a few days into September, when she went to the apartment to collect the rent that defendants failed to pay by September 1St. Accordingly, defendants did not establish a defense to possession under G.L. c. 239, s. 8A. The court finds, however, that the defective flooring, which was repaired by the end of September, constituted a breach of the implied warranty of habitability, entitling defendants to a rent abatement of $130.00 for September 2008.

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ordered that judgment enter for plaintiff (landlord) for possession and unpaid rent damages in the amount of $2,470.00 through December 2008, plus court costs. SO ORDERED:

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

EBERT BETANCOURT Plaintiff VS. EBONY SHANNON Defendant

 

WORCESTER, ss.

 

 

Docket # SUMMARY PROCESS NO. 08-SP-4203

 

Parties: EBERT BETANCOURT Plaintiff VS. EBONY SHANNON Defendant

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: December 4, 2008

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

In this eviction case, plaintiff seeks possession of the premises from defendant for non-payment of rent. Defendant filed a written answer, and the court finds as follows: Plaintiff owns 35 Shelby Street, Worcester, wherein defendant resides as a tenant-at-will at Apartment #2. The rent is $775.00 due the 1 s` day of each month. Defendant has a lengthy history of non-payment or late payment of her rent, and plaintiff has been very reasonable in working closely with her since she first moved into the premises. Plaintiff has terminated her tenancy in the past, and has worked patiently with defendant in resolving any prior non-payment issues. Defendant has paid no rent since September 2008, leaving a total balance of $2,325.00 in unpaid rent due plaintiff, who terminated the tenancy.

Defendant asserted that plaintiff is discriminating against her by refusing to accept funding from the RAFT program, through which defendant applied for funding toward her unpaid rent balance. The court finds that plaintiff did not discriminate against defendant, and in fact had accepted RAFT funding in the past to assist defendant. In October 2008, when defendant applied again for RAFT funding, she delivered the application package to plaintiff for

 

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his signature, which was necessary for the application be processed. Plaintiff did not sign the RAFT documentation, because he wanted additional information about it. He asked defendant to provide him with the name of a contact person she was dealing with regarding her application, and a telephone number to reach that individual. The RAFT paperwork given to plaintiff by defendant did not include the contact information sought by plaintiff, and defendant did not provide the information reasonably requested by plaintiff. Plaintiff did not discriminate against defendant in any respect, and the court finds in favor of plaintiff on defendant’s discrimination claim. G.L. c. 239, s. 151B.

Defendant further asserted a claim that plaintiff violated the security deposit statute. At trial, however, she withdrew the claim, testifying that plaintiff had complied with her request by delivering to her all interest earned on her security deposit and last month’s rent deposit. Accordingly, the court finds in favor of plaintiffs claim pursuant to G.L. c. 186, s. 15B.

As to all other defenses and claims asserted in defendant’s written answer, the court finds that the credible evidence presented at trial is insufficient for a finding in favor of defendant on any of said claims. Accordingly, plaintiff is entitled to judgment thereon. The court finds that plaintiff established a prima facie case for possession and unpaid rent in the amount of $2,325.00, and no credible defenses were presented.

ORDER FOR JUDGMENT

Judgment shall enter in favor of plaintiff (landlord) for possession and rent damages in the amount of $2,325.00 through December 2008, plus court costs.

 

 

 

 

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End Of Decision

 

HOUSING COURT

LORIE SPAULDING dba L.A.S. MANAGEMENT Plaintiff VS. MICHAEL COTE AND STEPHANIE POMERLEAU Defendants

 

WORCESTER, ss.

 

 

Docket # SUMMARY PROCESS NO. 08-SP-3820

 

Parties: LORIE SPAULDING dba L.A.S. MANAGEMENT Plaintiff VS. MICHAEL COTE AND STEPHANIE POMERLEAU Defendants

 

Judge: /s/TIMOTHY F. SULLIVAN

 

Date: November 12, 2008

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

In this eviction case, plaintiff seeks to recover possession of the premises from defendants for non-payment of rent. No written answer was filed, and the Court finds as follows: plaintiff is the landlord in connection with the premises located at 94-96 Daniels Street, Fitchburg, wherein defendants have been tenants since April 2008 at Apartment #2 Left. The contract rent is $650.00 due the first day of each month. Defendants have paid no rent for September, October or November 2008, leaving a balance of $1,950.00 in unpaid rent due plaintiff, who terminated the tenancy.

Defendant, Ms. Pomerleau, testified that conditions in the premises are defective. There exists with respect to every

residential tenancy, an implied warranty that the premises are fit for human habitation. A landlord is in breach of the warranty where there exist defects that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the implied warranty of habitability occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code

violation in the apartment. The landlord is not entitled to recover

 

– 1-

 

possession of the premises if the court finds that the amount of rent due the landlord equals or is less than the amount due the tenant on asserted counterclaims and defenses. G.L. c. 239, s. 8A.

In the instant case, the Fitchburg Health Department inspected the premises after complaints were received about the conditions therein. Following the inspection, a written notice was sent to plaintiff on October 28, 2008, citing a number of Sanitary Code violations that exist on the premises. (See Defendants’ Trial Exhibit A). Plaintiff testified that the heat was restored within the past week. No evidence was presented tending to support plaintiff’s testimony.

The court finds that the defective conditions cited in said October 28th violation notice, none of which conditions were caused by defendants, in the aggregate constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, supra. Plaintiff became property manager of the premises in September, four months after defendants moved into the apartment. Plaintiff presented no credible evidence to contradict Ms. Pomerleau’s testimony that defendants notified their initial landlord and/or his agents about the defective conditions after moving into their apartment last April. Neither the current property owner nor any prior owner or property manager testified at trial. Plaintiff presented no witness with direct knowledge of the premises to testify about the conditions therein as they existed at the inception of the tenancy.

The court credits the testimony of Ms. Pomerleau, and finds that the defective conditions cited by the Fitchburg Health Department (Defendants’ Trial Exhibit A) existed at the inception of the tenancy. The court finds that plaintiff knew or should have known about said defective conditions before defendants were first in arrears in the rent, and that defendants established a defense to possession under Section 8A. The court finds that said conditions have substantially impaired the character and value of the leased premises, causing a serious interference with

 

– 2-

 

defendants’ quiet enjoyment thereof Doe v. New Bedford Housing Authority, 417 Mass. 273, 284-285 (1994); Lowery v. Robinson, 13 Mass. App. Ct. 982 (1982); G.L. c. 186, s. 14.

The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises free of defects and the fair rental value of the premises during the period that the defective condition existed. Boston Housing Authority v. Hemingway, supra; Haddad v. Gonzalez, 410 Mass.

855, 872 (1991). The court finds that the fair rental value of the premises free of defects is the contract rent of $650.00. The court finds that the fair rental value of the premises given the defective conditions cited by the Fitchburg Health Department is $162.50.

The fair rental value of the premises from April2008 (taking into account the existing defects) totals $1,300.00. During that same period of time, defendants paid $3,250.00 in rent. Accordingly, defendants (tenants) are entitled to damages of $1,950.00 from plaintiff pursuant to Section 8A.

ORDER FOR JUDGMENT

Judgment shall enter in favor of defendants (tenants) for possession and damages of $1,950.00. The contract rent of $650.00 shall not be reinstated until the month after the defective conditions cited have been repaired to the satisfaction of the Fitchburg Health Department, and the contract rent is reinstated by the court.

 

 

 

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End Of Decision

 

HOUSING COURT

ALFRED GRAVELLE AND LISA GRAVELLE Plaintiffs VS. CAROL FLICKENGER Defendant

 

WORCESTER, ss.

 

 

Docket # SUMMARY PROCESS NO. 08-SP-2489

 

Parties: ALFRED GRAVELLE AND LISA GRAVELLE Plaintiffs VS. CAROL FLICKENGER Defendant

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: October 1, 2008

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

Plaintiffs filed this eviction case in July seeking possession of the premises from defendant for non-payment of rent. No written answer was filed, and the court finds as follows: Plaintiff owns 439 Townsend Harbor Road, Lunenburg, wherein defendant lived as a tenant from December 7, 2007 until July 15, 2008 subject to a lease. The rent was $1,200.00 due the 1st day of each month. Defendant paid no rent since April, and plaintiffs terminated the tenancy on June 9, 2008 by serving a legally sufficient notice to quit upon defendant. Defendant vacated the premises on July 15, 2008, and plaintiff seeks $3,000.00 in unpaid rent.

Defendant paid a last month’s rent deposit ($1,200.00) and a security deposit ($600.00) on December 2, 2007. When defendant vacated the premises, she authorized plaintiffs to credit said deposits toward the unpaid rent balance. After applying the agreed upon credit, the total unpaid rent balance due plaintiffs was adjusted to $1,200.00. Subsequently, defendant asserted a claim on August 6, 2008 that plaintiffs were in violation of the G.L. 186, s. 15B with respect to the handling of said deposits. Given the prior agreement to apply said funds toward unpaid rent, the court finds in favor of plaintiffs on said claim.

 

 

– 1-

 

Defendant testified that her stove was defective since she first moved into the premises. She did not report any such defects to the health department or any other municipal agency and first mentioned it to plaintiffs in May 2008, after she was already in arrears in her rent. Defendant did not present adequate evidence to support a finding that plaintiffs breached the implied warranty of habitability. G.L. c. 239, s. 8A. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). Accordingly, the court finds in favor of plaintiffs on said claim.

ORDER FOR JUDGMENT

Judgment shall enter in favor of plaintiff (landlord) for unpaid rent damages of $1,200.00 through August 2008, plus court costs.

 

 

 

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End Of Decision

 

 

HOUSING COURT

CHRISTOPHER BEJUNE Plaintiff VS. WAYNE IRVING AND PERNETA IRVING Defendants

 

 

WORCESTER, ss.

 

 

Docket # SUMMARY PROCESS NO. 08-SP-3020

 

Parties: CHRISTOPHER BEJUNE Plaintiff VS. WAYNE IRVING AND PERNETA IRVING Defendants

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: August 28, 2008

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

In this eviction case, plaintiff seeks possession from defendants for non-payment of rent. No written answer was filed, and the court finds as follows: Plaintiff owns 22 Florence Street, Worcester, wherein defendants reside as tenants at Apartment #2F. The rent is $600.00 due the 1st day of each month. Defendants paid no rent for July or August, leaving a balance of $1,200.00 due plaintiff, who terminated the tenancy.

The court finds that defective conditions exist in the premises (rodent infestation, water leaking from the upstairs apartment, water damage to the ceilings and walls, incomplete construction in bathroom, and broken tiles on bathroom wall, none of which were caused by defendants) which constitute a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). Plaintiff knew about said conditions since February 2008, before defendants were in arrears in their rent. Accordingly, defendants established a defense to possession under G.L. c. 239, s. 8A.

The fair rental value of the premises free of defects is $600.00, and the fair rental value given the defective conditions is $500.00. The value of the premises from February 2008 (taking

 

– 1-

 

into account the existing defects that exist) totals $3,500.00. During that same period of time, defendants paid plaintiff $3,150.00 in rent, leaving a balance of $350.00 due plaintiff under Section 8A.

ORDER FOR JUDGMENT

Judgment shall enter in favor of defendants (tenants) for possession on the condition that within seven (7) days of receipt of this order, defendants deposit with the Clerk of this court the sum of $350.00 by bank check or money order payable to Christopher Bejune. If this deposit is made, the Clerk shall immediately release all such funds to plaintiff. If the deposit is not made, judgment shall automatically enter in favor of plaintiff (landlord) for possession and unpaid rent damages in the amount of $350.00 through August, 2008, plus court costs…

 

 

 

 

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End Of Decision

HOUSING COURT

DAN LAI Plaintiff VS. JOANNE JEFFERSON Defendant

 

 

WORCESTER, ss.

 

 

Docket # SUMMARY PROCESS NO. 08-SP-2982

 

Parties: DAN LAI Plaintiff VS. JOANNE JEFFERSON Defendant

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: August 28, 2008

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

Plaintiff owns 12 Millbury Street, Worcester, wherein defendant resides at Apartment #2L as a tenant-at-will. The rent is $500.00 due the Pt day of each month. Defendant has a long history of partial/non-payment of her rent, carrying a balance of $300.00 from May 2008, and has paid no rent since, leaving a total balance of $1,800.00 due plaintiff, who terminated the tenancy. Defendant said her toilet and bathroom sink were defective. The court finds that no such defects exist, except for the pipe under the sink which was broken by defendant around August 19`h.

The court finds the refrigerator has serious defects (not caused by defendant) constituting a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). Plaintiff knew about the refrigerator defects since March 2008, at which time defendant was in arrears in her rent. Accordingly, defendant has not established a defense to possession under G.L. c. 239, s. 8A. Nonetheless, defendant is entitled to a rent abatement due to the defective refrigerator in the amount of $50.00 per month from March 2008.

 

 

ORDER FOR JUDGMENT

Judgment shall enter in favor of plaintiff (landlord) for possession and unpaid rent damages in the amount of $1,500.00 through August, 2008, plus court cost

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

CARL GORE Plaintiff VS. JAMES LONG AND SUSAN LONG Defendants

 

WORCESTER, ss.

 

 

Docket # SUMMARY PROCESS NO. 08-SP-2951

 

Parties: CARL GORE Plaintiff VS. JAMES LONG AND SUSAN LONG Defendants

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: September 17, 2008

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

In this eviction case, plaintiff seeks possession from defendants for non-payment of rent. Defendants filed a written answer, and the court finds as follows: Plaintiff owns 477 Cottage Street, Athol, wherein defendants reside as tenants-at-will at the basement apartment. The rent is $625.00 due the 1 s` day of each month. Defendant paid no rent since May 2008. Plaintiff applied defendants’ last month’s rent deposit ($625.00) toward June rent, leaving a balance of $1,875.00 due plaintiff, who terminated the tenancy.

Defendants testified that the conditions of the premises are

defective. The court finds that defendants first reported defective conditions to plaintiff on July 18, 2008, after a leak damaged drop-ceiling tiles, which collapsed in the apartment. The Athol Health Department inspected the premises on July 30th, and sent a written report to plaintiff citing one Sanitary Code violation (the leak and resulting interior ceiling damage). Defective flashing above the porch window was the source of the leak, and was repaired by plaintiff without undue delay. The interior ceiling tiled have yet to be replaced. The leak and water damage to the drop-ceiling tiles, which was not caused by defendants, constituted a breach of the implied warranty of habitability. Boston

– 1-

 

Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). (See Defendants’ Trial Exhibit A). Plaintiff first knew about said condition on July 18, 2008, after defendants were already in arrears in their rent. Accordingly, defendants did not establish a defense to possession under G.L. c. 239, s. 8A.

The court finds that defendants are nonetheless entitled to a 20% rent abatement for the months of July, August and September due to plaintiff’s breach of the warranty, and shall reduce the total amount of unpaid rent due plaintiff by $375.00. As to all other defenses and claims asserted in defendants’ written answer, insufficient evidence was presented for a finding in favor of defendants.

ORDER FOR JUDGMENT

Judgment shall enter in favor of plaintiff (landlord) for possession and unpaid rent damages in the amount of $1,500.00 through September, 2008, plus court costs.

 

 

 

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End Of Decision

 

HOUSING COURT

STONY BROOK PROPERTIES Plaintiff VS. EMMANUEL ANSAH AND ELLEN KWARBI Defendants

 

 

 

WORCESTER, ss.

 

 

Docket # SUMMARY PROCESS NO. 08-SP-3011

 

Parties: STONY BROOK PROPERTIES Plaintiff VS. EMMANUEL ANSAH AND ELLEN KWARBI Defendants

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: September 22, 2008

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

In this eviction case, plaintiff seeks possession from defendants for non-payment of rent. Defendants filed a written answer, and the court finds as follows: Plaintiff owns 38 Catharine Street, Worcester, wherein defendants reside at Apartment #8 as tenants-at-will. The rent is $500.00 due the 1S` day of each month. Defendants paid no rent for June, July, August or September 2008, leaving a balance of $2,000.00 in unpaid rent due plaintiff, who terminated the tenancy. On September 11, 2008, defendants deposited into court a $500.00 money order payable to plaintiff pursuant to a court order.

Defendants testified that the conditions in their apartment were defective in violation of G.L. c. 239, s. 8A. The court finds that on May 10, 2008, other tenants (not defendants) informed plaintiff about water leaking into their apartment. On investigation, plaintiff discovered that the source of the water leak was a hot water heater in defendants’ apartment. Despite the excessive amounts of water leaking from their hot water heater, defendants failed to inform plaintiff about the problem. Nonetheless, plaintiff immediately addressed the problem by shutting off the water and electricity, and obtaining a new hot water heater. Despite diligent efforts to install the water heater the next day, plaintiff was unable to complete the job because of defendants’ refusal to allow the necessary access to the apartment. After four days of unreasonable interference from defendants, plaintiff called Worcester Police to the scene and

 

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only then was able to complete the installation of the new hot water heater. The repair was completed on May 14th Around this time, plaintiff learned that damage had been done to the pipes under defendants’ kitchen sink, and a toilet was defective. The pipes were repaired immediately, and the toilet was replaced within two days.

On August 7th or 8th, plaintiff was first informed of the following defects in defendants’ apartment: a defective electric stove, a slow drain in the bathroom sink, and damaged pipes under the kitchen sink that were newly installed in May. Within a day or two after being informed about said conditions, plaintiff repaired all reported defects.

Defendants broke one of their apartment keys inside the door lock. No evidence was presented showing that the lock is in any way defective or that the lock caused the key to break. Defendants were in no way denied access to their apartment, and the security. of their apartment was in no way compromised by the broken key, which plaintiff agreed to replace provided defendants pay for it.

Defendant reported a mouse and cock roach infestation to plaintiff on August 7th, and plaintiff installed mouse traps the next day. No evidence was presented to support defendants’ allegation of a mouse infestation, and plaintiff received no further complaints

about mice. On September 10th, plaintiff, who has been providing routine extermination services at the premises to eliminate the possibility of a roach infestation, had the premises exterminated by New England Pest Control Co. No further defective conditions have been communicated to plaintiff.

The court credits the testimony offered by plaintiff, and finds that defendants lack credibility. The court finds that the conditions of the premises do not constitute a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199, (1973).

Defendants testified that plaintiff regularly entered their apartment without prior notice, thereby constituting a breach of defendants’ quiet enjoyment of the premises. The court finds that plaintiff entered defendants’ apartment without notice once on May 10, 2008 to respond to the water emergency, and that no other entry was made by plaintiff without prior notice to

 

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defendants. Plaintiffs conduct did not constitute a breach of quiet enjoyment. G.L. c. 186, s. 14.

As to all other counterclaims asserted in defendant’s written answer, no evidence or testimony was presented thereon, and the court finds in favor of plaintiff on all such claims.

 

ORDER FOR JUDGMENT

Judgment shall enter in favor of plaintiff (landlord) for possession and unpaid rent damages in the amount of $1,500.00 through September, 2008, plus court costs. It is further ordered that the Clerk of this court immediately release to plaintiff a $500.00 money order payable to plaintiff and deposited to court by defendants on September 11, 2018.

 

 

 

 

 

End Of Decision

 

HOUSING COURT

JAMES MAROIS Plaintiff VS. CHERYL REYNOLDS Defendant

 

 

WORCESTER, ss.

 

 

Docket # SUMMARY PROCESS NO. 08-SP-2887

 

Parties: JAMES MAROIS Plaintiff VS. CHERYL REYNOLDS Defendant

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: August 21, 2008

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

In this eviction case, plaintiff seeks possession of the premises from defendant for non-payment of rent. No written answer was filed, and the court finds as follows: Plaintiff, owns 79 Airlie Street, Worcester, wherein defendant resides at Apartment #2 as a tenant-at-will. The rent is $850.00 due the first day of each month. Defendant has paid no rent for July and August, leaving a total balance of $1,700.00 in unpaid rent due plaintiff, who terminated the tenancy by serving a legally sufficient notice to quit upon defendant.

The court finds that defendant’s testimony lacks credibility, and credits the testimony of plaintiff. The court finds that a toilet in defendant’s apartment had a leak in the shut-off valve, which was first reported to plaintiff on August 4, 2008 (See Defendant’s Trial Exhibit A) and repaired by plaintiff the next day. The court finds that said valve leak did not constitute a breach of the implied warranty of habitability. G.L. c. 239, s 8A. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). Defendant did not present any adequate defenses to this eviction action. Accordingly, plaintiff is entitled to judgment.

 

ORDER FOR JUDGMENT

Judgment shall enter in favor of plaintiff (landlord) for possession and rent damages in the amount of $1,700.00 through August 2008, plus court costs.

 

 

 

 

 

End Of Decision

HOUSING COURT

CATHERINE THOMAS Plaintiff VS. DAVID SPENCER AND CINDY SPENCER Defendants

 

WORCESTER, ss.

 

 

Docket # SUMMARY PROCESS NO. 08-SP-2921

 

Parties: CATHERINE THOMAS Plaintiff VS. DAVID SPENCER AND CINDY SPENCER Defendants

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: September 4, 2008

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

In this eviction case, plaintiff seeks possession and unpaid rent from defendants. Defendants filed a written answer, and the court finds as follows: Plaintiff owns 8 Townsend Street, Worcester, wherein defendants reside at Apartment #1 as tenants-at-will. The rent is $900.00 due the 1″ day of each month. Defendants paid only $730.00 toward April rent, $700.00 toward May rent, and nothing since, leaving a balance of $3,970.00 due plaintiff, who terminated the tenancy.

On July 17, 2008, defendants complained to the Worcester Health Department about the conditions of their apartment. After inspections, written violation notices were sent to plaintiff citing a number of defective conditions in the premises. (See Defendants’ Trial Exhibits A and B). Said conditions, none of which were caused by defendants, constitute a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). Plaintiff knew or should have known about said conditions since May 2008 by which time defendants were already in arrears in their rent. Accordingly, defendants are not entitled to a defense to possession under G.L. c. 239, s. 8A.

 

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The fair rental value of the premises free of defects is $900.00, and the fair rental value given the defective conditions is $720.00. The value of the premises from May 1, 2008 (taking into account the existing defects that exist) totals $2,880.00. During that same period of time, defendants paid plaintiff $200.00 in rent. Together with the unpaid rent balance of $170.00 for April 2008, defendants owe plaintiff a total balance of $2,850.00 through September 2008 under Section 8A. As to all other counterclaims asserted in defendants’ written answer, the evidence presented in insufficient for a finding in favor of defendants.

ORDER FOR JUDGMENT

Judgment shall enter in favor of plaintiff for possession and unpaid rent damages in the amount of $2,850.00 through September 2008, plus court costs.

 

 

 

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End Of Decision

 

HOUSING COURT

JOHN E. STRYCHARZ Plaintiff VS. SEBRAN SHAGOURY Defendant

 

WORCESTER COUNTY DIVISION

 

 

Docket # SUMMARY PROCESS NO. 09-SP-2630

 

Parties: JOHN E. STRYCHARZ Plaintiff VS. SEBRAN SHAGOURY Defendant

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: August 26, 2009

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

In this eviction case, plaintiff seeks possession from defendant for non-payment of rent. Defendant filed a written answer, and the court finds as follows: Plaintiff owns 12 Ives Street, Blackstone, wherein defendant resides at Apartment #1 as a tenant-at-will. The rent is $145.00 due every Friday. Defendant has paid no rent for six weeks, leaving a balance of $870.00 in

unpaid rent due plaintiff, who terminated the tenancy. Defendant testified that his water was shut off in February 2009, his thermostat broke in December 2008, and his toilet has not worked properly for three months. Plaintiff acknowledged shutting off the water in February 2009 to fix a leaky valve. Water service was restored the same day after the brief repair job. Plaintiff said he inspected the thermostat and no defect existed. He also denied the claim of a toilet defect. The court finds no breach the implied warranty of habitability has occurred, and that defendant is not entitled to relief under G.L. c. 239, s. 8A. As to all other claims asserted in defendant’s written answer, the evidence presented is insufficient for a finding for defendant.

 

 

ORDER FOR JUDGMENT

Judgment shall enter in favor of plaintiff (landlord) for possession and unpaid rent damages in the amount of $870.00 through August 21, 2009, plus court costs.

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

R.A. REALTY TRUST Plaintiff VS. LEO RICHARD Defendant

 

 

WORCESTER COUNTY DIVISION

 

 

Docket # SUMMARY PROCESS NO. 09-SP-2505

 

Parties: R.A. REALTY TRUST Plaintiff VS. LEO RICHARD Defendant

 

Judge: /s/TIMOTHY F. SULLIVAN

 

Date: August 19, 2009

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

In this eviction case, plaintiff seeks possession from defendant for non-payment of rent. Defendant filed a written answer, and the court finds as follows: Plaintiff owns 94 Pleasant Street, Gardner, wherein defendant has resided at Apartment #7 as a tenant for about two years. The rent is $400.00 due the 15` day of each month. No security deposit was paid to plaintiff. Defendant paid $365.00 toward rent for June 2009 and nothing since, leaving a balance of $835.00 in unpaid rent due plaintiff, who terminated the tenancy on July 7, 2009. (Plaintiff’s Trial Exhibit 2).

Defendant testified that the conditions of his apartment are defective. He complained about drafty windows and foul smells emanating from a neighbors apartment. He also said a smell of fuel can be detected in the common bathroom. On the evidence presented, the court finds that plaintiff is not in breach of the implied warranty of habitability, and that defendant is not entitled to relief under G.L. c. 239, s. 8A.

As to all other defenses and claims asserted in defendant’s written answer, the court finds the evidence to be insufficient for a finding in defendant’s favor.

 

ORDER FOR JUDGMENT

Judgment shall enter in favor of plaintiff (landlord) for possession and unpaid rent damages in the amount of $835.00 through August, 2009, plus court costs.

 

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

GIDEON AWEH Plaintiff VS. KRISTEN TOZESKI Defendant

 

 

WORCESTER COUNTY DIVISION

 

 

Docket # SUMMARY PROCESS NO. 09-SP-3820

 

 

Parties: GIDEON AWEH Plaintiff VS. KRISTEN TOZESKI Defendant

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: August 6, 2009

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

In this eviction case, plaintiff seeks to recover possession of the premises from defendant for non-payment of rent. Defendant filed a written answer, and the court finds as follows: Plaintiff owns a three-family house at 130 Fairmont Street, Worcester, wherein defendant has resided at Apartment #1 as a tenant since September 2005. The rent is $850.00 due the first day of each month. Plaintiff is responsible for providing electrical service. Defendant has paid no rent since May 2009, leaving a balance of $2,550.00 in unpaid rent due plaintiff, who terminated the tenancy.

 

Defendant asserted that conditions in the premises are defective. There exists with respect to every residential tenancy, an implied warranty that the premises are fit for human habitation. A landlord is in breach of the warranty where there exist defects that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the implied warranty of habitability occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the apartment. The landlord is not entitled to recover possession of the

 

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premises if the court finds that the amount of rent due the landlord equals or is less than the amount due the tenant on asserted counterclaims and defenses. G.L. c. 239, s. 8A.

In the instant case, the court finds that a water pipe leaked into defendant’s apartment in the early morning hours of May 19, 2009. The leak was repaired by plaintiff on May 22, 2009, and the damage caused to the ceiling around defendant’s food storage area was repaired in mid-June 2009. Since May 2008, plaintiff has been aware that the premises has been infested with

cock roaches and mice. Despite the fact that plaintiff finally engaged the services of a professional pest control company in April 2009, and the premises has been treated regularly since that time, the infestations persists. In March 2009, the electric service at the premises was shut off due to plaintiffs failure to pay the bill. Defendant was without electrical power for a two-day period of time. In 2006, plaintiff removed all trash receptacles from the premises in violation of the State Sanitary Code, and no trash receptacles have been provided to the premises since. As a result, trash consistently accumulates throughout the premises attracting rodents and cock roaches. Defendant’s apartment has three missing screens, and some defective screens. Plaintiff has known about the missing screens since 2007, and has failed to address the problem. In mid-July 2009, defendant’s bathroom shower and sink clogged. Despite plaintiffs attempts to make repairs, the problem remains. In June 2009, a drain pipe in defendant’s pantry began leaking. Plaintiff was informed about the problem immediately, and although he has worked on it, the pipe still leaks, and defendant keeps a plastic bucket in the cabinet under the drain pipe to prevent water from flowing onto the floor of her apartment.

The court finds that said defective conditions, none of which conditions were caused by defendants, in the aggregate constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, supra. The measure of damages for breach of the implied

 

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warranty of habitability is the difference between the fair rental value of the premises free of defects and the fair rental value of the premises during the period that the defective condition

existed. Boston Housing Authority v. Hemingway, supra; Haddad v. Gonzalez, 410 Mass. 855, 872 (1991). The court finds that the fair rental value of the premises free of defects is the contract rent of $850.00. The court finds that the fair rental value of the premises given the defective conditions existing therein is $425.00.

The court credits defendant’s testimony, and finds that said defective conditions have substantially impaired the character and value of the leased premises, causing a serious interference with defendant’s quiet enjoyment thereof entitling defendant to three month’s rent damages, plus a reasonable attorney fee. Doe v. New Bedford Housing Authority, 417 Mass. 273, 284-285 (1994); Lowery v. Robinson, 13 Mass. App. Ct. 982 (1982); G.L. c. 186, s. 14.

At the inception of the tenancy, plaintiff was responsible for the payment of utilities. In September 2006, he transferred the responsibility for the gas bills over to defendant without a written agreement with defendant to do so, which, given the agreeable conduct of defendant since September 2006, the court shall consider a technical violation of G.L. c. 186, s. 14 entitling defendant to minimum statutory damages of $25.00, plus a reasonable attorney fee. G.L. c. 93A.

Finally, defendant asserted that plaintiff violated state law by mishandling her last month’s rent deposit. The court finds that defendant paid a last month’s rent deposit of $975.00 on September 1, 2005, which was the same amount as her monthly rent at that time, and has been paid no interest since. Accordingly, defendant is entitled to 5% interest on her deposit ($195.00) plus minimum statutory damages of $25.00, plus a reasonable attorney fee. G.L. c. 186, s. 15B G.L. c. 93A.

As to the food spoilage asserted by defendant as a result of the two-day power outage in

 

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March 2009, the court shall not award any damages for defendant’s losses, and would only consider such a claim in the Small Claims division of this court.

 

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial and the reasonable inferences drawn therefrom, in light of the governing law, it is ordered that judgment enter in favor of defendant (tenant) for possession and damages of $245.00 (unpaid rent of $2,550.00 due plaintiff, minus three month’s rent damages of $2,550.00 due defendants under G.L. c. 186, s. 14, minus $50.00 minimum statutory damages due defendants under G.L. c. 93A, minus $195.00 statutory interest of 5% on defendant’s last month’s rent deposit) through August 2009.

Plaintiff shall pay directly to defendant’s attorney a reasonable fee, which amount shall be determined by the court upon the filing of defendant’s motion and fee affidavit.

 

 

 

 

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End Of Decision

 

HOUSING COURT

CHERYL EIDINGER-TAYLOR Plaintiff VS. SUZANNE TRUDEAU AND MICHAEL GAGLIARDI Defendants

 

WORCESTER COUNTY DIVISION

 

 

Docket # SUMMARY PROCESS NO. 09-SP-1362

 

Parties: CHERYL EIDINGER-TAYLOR Plaintiff VS. SUZANNE TRUDEAU AND MICHAEL GAGLIARDI Defendants

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: August 6, 2009

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

In this eviction case, plaintiff seeks possession from defendants for non-payment of rent. Defendants filed a written answer that included defenses and counterclaims against plaintiff, and the court finds as follows: Plaintiff owns 74 High Street, Whitinsville, Massachusetts, wherein defendants reside as tenants. 74 High Street is one of four residential apartments in the building. There are also two detached garages on the property. Defendant, Suzanne Trudeau, (hereinafter “Trudeau”) was a tenant-at-will at the premises having held over after the expiration of her initial one-year lease term from September 1, 2007 through August 31, 2008. Ms. Trudeau lived at the premises since the inception of her tenancy with her minor son who was approximately eight years old when he first moved into the premises. Defendant, Michael Gagliardi, (hereinafter “Gagliardi”) began living at the premises sometime in the middle of 2008. The rent is $750.00 due the Pt day of each month. Defendants are responsible for all utilities. The rented premises does not include any portion the detached garages adjacent to the rented premises. The parties agreed at the inception of the tenancy that the unheated rooms on the third floor of the building were to be used for storage only. At the inception of her tenancy, Trudeau paid plaintiff a first and last month’s rent deposit. No security deposit was paid.

In October of 2008, Ms. Trudeau was unable to pay the full amount of her rent. As a result, the parties agreed that plaintiff would apply one-half of Ms. Trudeau’s last month’s rent

 

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deposit held by plaintiff ($375.00) to cover the balance of unpaid rent due for October 2008. Ms. Trudeau would then begin paying back the amount advanced from the last month’s rent deposit ($375.00) after January 1, 2009. No portion of the $375.00 was ever paid back to plaintiff to replenish defendants’ last month’s rent deposit as agreed. Defendants’ last month’s rent deposit remains at the reduced balance of $375.00. Defendants paid no rent for March, April, May , June or July 2009, leaving a total balance of $3,750.00 due plaintiff On March 30, 2009, plaintiff terminated the tenancy by serving defendants with a legally sufficient 14-day notice to quit for non-payment of rent.

Defendants claim that there are defects within the premises. There exists with respect to every residential tenancy, an implied warranty of habitability that the premises are fit for human habitation. A landlord is in breach of the warranty where there exist defects that may materially affect the health or safety of

the occupants. Boston Housing Authority v. Hemingway, 363

Mass. 184, 199 (1973). A breach of the implied warranty of habitability occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the apartment. G.L. c. 239, s. 8A.

Section 8A provides that, where a tenancy has been terminated for non-payment of rent, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy, or occupancy for breach of warranty….” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to a defense to possession only if: (1) the landlord knew or should have known of the conditions before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the conditions; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated. The landlord is not entitled to recover possession of the premises if the court finds that the amount of rent due the landlord equals or is less than the amount due the tenant on his counterclaims and defenses. If the court finds that the amount of rent due the landlord is greater than the amount due the tenant on his counterclaims and defenses, the landlord is not entitled to recover possession provided the tenant pays the balance due the landlord within seven (7) days of the tenant’s receipt of the court’s decision.

 

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Although there were no defective conditions when Ms. Trudeau moved into the premises, she decided she did not like the style of wallpaper therein. It was therefore agreed that Ms. Trudeau would be allowed to remove the wallpaper, and paint the walls in exchange for living rent-free within the premises for the month of August 2007. Plaintiff also paid for all materials used by defendant in connection with the painting of her apartment.

In September 2007, Ms. Trudeau complained to plaintiff about a bubble in the lining of the tub. Plaintiff immediately hired a plumber to assess the situation which was determined not to be a plumbing problem but rather a problem with the tub lining. Ms. Trudeau then informed plaintiff that she had made a small hole in the bubble in the tub liner, which seemed to eliminate the problem. No further concerns as to the tub liner were communicated to plaintiff until March 3, 2009, when plaintiff received a letter from Ms. Trudeau referencing the tub liner problem. (See Plaintiffs Trial Exhibit #7).

In the summer of 2008, Ms. Trudeau sought permission to replace the front door at the premises herself by installing a door that was more secure. Plaintiff agreed, and credited Ms. Trudeau $200.00 towards her rent in August of 2008 as reimbursement for the cost of the new door ($100.00) and its installation ($100.00). No other complaints about conditions at the premises were brought to plaintiffs attention in 2008.

In early February 2009, Ms. Trudeau commented to plaintiff that her electricity bills were unusually high, and that her circuit breakers were tripping. The parties discussed a possible cause, and plaintiff offered to get her electrician to make an

immediate emergency visit. Ms. Trudeau declined plaintiffs offer. Ms. Trudeau was then instructed to call plaintiff the next morning if the situation persisted. Ms. Trudeau did not follow up with the landlord at that time as instructed to. Around that same period of time, Ms. Trudeau vaguely discussed with plaintiff a lighting fixture issue at the premises. Mr. Peterson was dispatched to the premises by plaintiff on February 8, 2009 to address the light fixture. The electrician returned on numerous subsequent occasions to address electrical concerns communicated to plaintiff.

The court finds that at various times during her tenancy, Ms. Trudeau operated an aesthetician business at the premises, and that such use overloaded the electrical system, causing higher than normal electric bills, and the tripping of the circuit breakers in Ms. Trudeau’s

 

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apartment. Nonetheless, at plaintiffs request, Mr. Peterson addressed all of the electrical issues raised.

Plaintiff received no other complaints about conditions at the premises until March 3, 2009, when she received Ms. Trudeau’s February 28, 2009 letter. (See Plaintiff’s Trial Exhibit #7). On or about March 9, 2009, the Town of Northbridge Board of Health conducted an inspection of the premises and issued an inspection report citing a number of Sanitary Code violations therein. Except for the tripping circuit breakers, issues with a single lighting fixture, and the bath tub bubble, plaintiff had no prior knowledge of any violations cited in said March 9, 2009 health department inspection report.

On or about March 24, 2009, the health department conducted a second inspection of the premises and issued an inspection report dated March 25, 2009 citing additional defects within the premises, none of which plaintiff had prior knowledge of. The March 25, 2009 report noted plaintiffs substantial progress in addressing the conditions cited in the March 9, 2009 report. On April 28, 2009, the health department again inspected the premises and, by letter dated April 29, 2009, informed the landlord that all previous violations had been corrected. On May 26, 2009, yet another inspection was conducted, and the health department issued a report dated May 28, 2009 citing additional code violations at the premises, none of which plaintiff had prior knowledge of

With the exception of obtaining a compliance certificate from the Fire Department regarding smoke and carbon monoxide detectors, and the problem caused by weather stripping on a rear entry door, plaintiff adequately addressed every violation cited by the Board of Health in 2009 within the deadlines established by the health department.

As to the smoke detectors, the local fire department indicated on June 30th letter to the health department that all smoke detectors in the apartment are working, but it is required that: (i) the hardwired detectors in the unit should be changed to battery powered local alarm detectors;

(ii) an additional carbon monoxide detector be installed on the second floor of the apartment; and

(iii) the detectors located in the common cellar area which were combination smoke and carbon monoxide detectors be replaced with

combination detectors having voice alarms.

Due to the July 4th holiday weekend and pressing family matters, plaintiffs electrician

 

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(Mr. Peterson) was unable to address the issues set forth in the June 30, letter from the Fire Department by the time of trial on July 13, 2009.

The only defective conditions brought to plaintiff’s attention prior to March 3, 2009 were the tripping circuit breakers, ill-defined issues with a light fixture, and the bubble in the bathtub liner. The court finds that said conditions in the aggregate do not constitute a breach of the implied warranty of habitability. Accordingly, defendants are not entitled to relief for said conditions under Section 8A.

As to all other defective conditions cited by defendants, beginning with their letter first received by plaintiff on March 3, 2009 (Plaintiff’s Trial Exhibit #7) together with the conditions subsequently cited by the health department, the court finds that said conditions, none of which were caused by defendants, in the aggregate constituted a breach of the implied warranty of habitability. When plaintiff was first made aware of said conditions, defendants were already in arrears in their rent.

The measure of damages for a breach of the implied warranty of habitability is the difference between the fair rental value of the premises free of defects and the fair rental value of the premises during the period that the defective condition existed. Boston Housing Authority v. Hemingway, supra; Haddad v. Gonzalez, 410 Mass. 855, 872 (1991). The court finds that the fair rental value of the premises free of defects is the contract rent of $750.00. The fair rental value of the premises given the defective conditions cited is $700.00. Accordingly, defendant is entitled to a rent abatement in the amount of $250.00 ($50.00 for each month from March, when plaintiff was first made aware of said defective conditions, through July 2009, leaving a total balance of $3,500.00 in unpaid rent due plaintiff under Section 8A.

Defendants assert that plaintiff interfered with their quiet enjoyment of the premises in violation of G.L. c. 186, s. 14 by denying them access to the detached garage space located adjacent to the rented premises dwelling. The court finds that said garage space is not included as a part of the rented premises, and that defendants entered upon the garage space and stored numerous items of personal property therein without right. The court finds that plaintiff lawfully restricted defendants’ access to said garage space, and that her doing so is not a violation of G.L. c. 186, s. 14.

 

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After the health department issued it’s March 25, 2009 inspection report referencing cross-metering, Mr. Peterson discovered that two lights in a common area basement laundry area were improperly metered to defendants’ apartment. No written agreement was produced whereby defendants assumed responsibility for said common area lighting. The cross metering was promptly

rectified by plaintiff, and the basement laundry area lights are no longer billed to defendants. G.L.c. 186, s.14 prohibits plaintiff from transferring the responsibility for payment of any utility or service to defendants absent defendants’ written consent. Accordingly, defendants shall be awarded three month’s rent damages ($2,250.00) plus minimum statutory damages of $25.00, plus a reasonable attorney fee. G.L. c. 186, s. 14 G.L.c. 93A.

As to defendants’ further claim for relief under G.L. c. 93A, the court finds that in all her dealings with defendants, plaintiffs conduct could not be reasonably characterized as unfair or deceptive by any measure. Accordingly, defendants’ damages award under 93A shall be limited to the minimum statutory damages of $25.00, plus a reasonable attorney fee as already awarded due to plaintiff’s cross-metering.

Defendants finally assert that plaintiff’s attempt to evict them is retaliatory. A tenant has a defense to the landlord’s claim for possession under G.L. c. 239, s. 2A and a claim for damages under G.L. c. 186, s. 18, if the landlord’s commencement or a summary process action or his service upon the tenant of a notice of termination upon which the action is based, was in retaliation for, among other things, the tenant’s reporting a violation or suspected violation of law to a health or building department, or reporting a violation or suspected violation of law in writing to the landlord as provided in G.L. c. 186, s. 18. Under Sections 2A and 18, the commencement of a summary process action or the service of a notice of termination within six (6) months of a tenant’s action of reporting to a health or building department, or complaining of such violation or suspected violation in writing to the landlord, creates a rebuttable presumption of retaliation.

In the instant case, defendants complained to plaintiff about various defective conditions at the premises between September 2008 and March 2009. On March 30, 2009, plaintiff served defendants with a notice to quit, and commenced this eviction action, which creates a presumption that the eviction was retaliatory. Plaintiff, however, produced clear and convincing

 

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evidence to rebut the presumption. That clear and convincing evidence consisted of defendants’ failure to pay any rent since February 2009. The court finds that plaintiff commenced this eviction action against defendants solely and exclusively due to defendants’ failure to pay rent, and that plaintiff engaged in no acts of reprisal against defendants pursuant to G.L. c. 239, s. 2A or G.L. c. 186, s. 18.

With respect to all other claims asserted in defendants’ written answer, the evidence presented at trial in insufficient for a finding in defendants’ favor. Accordingly, judgment shall enter for plaintiff on all such claims.

 

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial and the reasonable inferences drawn therefrom, in light of the governing law, it is ordered that judgment enter in favor of defendants for possession pursuant to the fifth (5th) paragraph of G.L. c 239, s. 8A, on the condition that within seven (7) days of

their receipt of this order, defendants deposit with the Clerk of this court the sum of $1,225.00 (unpaid rent of $3,750.00 due plaintiff, minus $250.00 due defendants under G.L. c. 239, s. 8A, minus three month’s rent damages of $2,250.00 due defendants under G.L. c. 186, s. 14 for plaintiff’s cross metering, minus $25.00 minimum statutory damages due defendants under G.L. c. 93A) by bank check or money order made payable to Cheryl Eidinger-Taylor. If this deposit is made, the Clerk shall immediately release all such funds held by the court to plaintiff If the deposit is not made as prescribed, judgment shall automatically enter in favor of plaintiff (landlord) for possession and damages in the amount of $1,225.00 through July 2009, plus court costs.

Plaintiff shall pay directly to defendants’ attorney a reasonable fee, which amount shall be determined by the court upon the proper filing of defendants’ motion and fee affidavit.

 

 

 

 

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End Of Decision

 

HOUSING COURT

CAROLINE RELLSTAB Plaintiff VS. DEBORA YOUNG AND ROBERT YOUNG Defendants

 

WORCESTER COUNTY DIVISION

 

 

Docket # SUMMARY PROCESS NO. 09-SP-2198

 

Parties: CAROLINE RELLSTAB Plaintiff VS. DEBORA YOUNG AND ROBERT YOUNG Defendants

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: August 4, 2009

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

In this eviction case, plaintiff seeks possession from defendants for non-payment of rent. Defendants filed a written answer, and the court finds as follows: Plaintiff owns 27 Maple Street, Spencer, wherein defendants reside at Apartment #2 as tenants. The rent is $1,295.00 due the 1st day of each month. Defendants owe a balance of $3,705.00 in unpaid rent to plaintiff, who terminated the tenancy.

There are defective conditions in defendants’ apartment. Plaintiff was not aware of such defects until April 2009, when defendants first complained to plaintiff about mice, flies and mosquitos in the premises. At that time, defendants were in arrears in their rent, and therefore did not established a defense to possession under G.L. c. 239, s. 8A. Defendants contacted the Spencer Health Department on June 22, 2009, at which time defendants were still in arrears in their rent, to complain about defective conditions. An inspection of the premises followed, and a written report was sent to plaintiff citing various Sanitary Code violations therein. (See Defendant’s Trial Exhibit A).

The court finds that the mice, flies and mosquitos, together with the defective conditions

 

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cited by the Spencer Health Department (Defendants’ Exhibit A), none of which conditions were caused by defendant, constitute a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973).

The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises free of defects and the fair rental value of the premises during the period that the defective condition existed. Boston Housing Authority v. Hemingway, supra; Haddad v. Gonzalez, 410 Mass. 855, 872 (1991). The court finds that the fair rental value of the premises free of defects is the contract rent of $1,295.00, and the fair rental value of the premises given the defects cited to be $777.00.

Although defendants failed to establish a defense to possession under Section 8A, the defective conditions entitle defendants to a rent abatement in the amount of $518.00 for each month from April through July 2009. Accordingly, judgment shall enter in favor of plaintiff for possession and unpaid rent in the amount of $1,633.00. As to all other claims and defenses asserted in defendants’ written answer, the evidence presented is insufficient for a finding in favor of defendants.

ORDER FOR JUDGMENT

Judgment shall enter in favor of plaintiff (landlord) for possession and unpaid rent damages in the amount of $1,633.00

through July, 2009, plus court costs.

 

 

 

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End Of Decision

 

HOUSING COURT

ESTER KONNEH Plaintiff VS. TIFFANY TONEY Defendant

 

 

WORCESTER COUNTY DIVISION

 

 

Docket # SUMMARY PROCESS NO. 09-SP-2300

 

Parties: ESTER KONNEH Plaintiff VS. TIFFANY TONEY Defendant

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: July 23, 2009

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

In this eviction case, plaintiff seeks possession from defendant for non-payment of rent. No written answer was filed, and the court finds as follows: Plaintiff owns 17 Blanche Street, Worcester, wherein defendant has resided at Apartment #3 subject to a written tenancy agreement since March 1, 2009. The rent is $800.00 due the 1st day of each month. Defendant paid no rent since April 2009, leaving a balance of $2,400.00 in unpaid rent due plaintiff, who terminated the tenancy.

Defendant testified that the conditions of her apartment are defective. She first complained to plaintiff in March 2009 about a defective stove, which plaintiff had replaced the same day. No further complaints about the stove have been communicated to plaintiff, and the court finds that no breach of the implied warranty of habitability existed with respect to the stove.

In April 2009, defendant then complained to plaintiff about missing smoke and carbon monoxide detectors, and insufficient heat. In June 2009, defendant complained to plaintiff about a defective refrigerator. The court finds that said conditions, none of which were caused by defendant, constituted a breach of the implied warranty of habitability. Boston Housing

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Authority v. Hemingway, 363 Mass. 184, 199 (1973). Plaintiff knew or should have known of said defects (except the defective refrigerator) before defendant was in arrears in her rent. Accordingly, defendant established a defense to possession under G.L. c. 239, s. 8A.

The fair rental value of the premises free of defects is the contract rent of $800.00, and the fair rental value given the defective conditions is $600.00. The value of the premises from April 2009 (taking into account the existing defects cited by defendant) totals $2,400.00. During that same period of time, defendant paid plaintiff $800.00 in rent, leaving a balance of $1,600.00 due plaintiff under Section 8A.

 

ORDER FOR JUDGMENT

Judgment shall enter in favor of defendant (tenant) for possession on the condition that within seven (7) days of receipt of this order, defendant deposits with the Clerk of this court the sum of $1,600.00 by bank check or money order payable to Ester Konneh. If this deposit is made, the Clerk shall immediately release all such funds to plaintiff. If the deposit is not made, judgment shall automatically enter in favor of plaintiff (landlord) for possession and unpaid rent damages in the amount of $1,600.00 through July, 2009, plus court costs.

 

 

 

 

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End Of Decision

HOUSING COURT

MARK S. RIVERS VS. MONT FAIRFAX

 

 

WORCESTER COUNTY DIVISION

 

 

Docket # SUMMARY PROCESS NO. 09-SP-2293

 

Parties: MARK S. RIVERS VS. MONT FAIRFAX

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: July 24, 2009

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

This is a cause eviction in which plaintiff seeks to recover possession of the premises due to defendant’s alleged interference with the quiet enjoyment of other tenants at the premises. No written answer was filed, and the court finds as follows: Plaintiff owns 174-176 Fairmount Street, Fitchburg, wherein defendant resides as a tenant at Apartment #2L subject to a written rental agreement. (See Plaintiff’s Exhibit 1). On May 29, 2009, plaintiff served defendant with a legally sufficient notice to quit due to defendant’s alleged breach of quiet enjoyment. The court credits the testimony and evidence presented by plaintiff.

Mr. Paul Merrill is a tenant residing in the same building at Apartment #1, which is located directly below defendant’s apartment. On June 22, 2009, defendant borrowed a DVD player and a scanner from Mr. Merrill, and refused to return it upon Mr. Merrill’s request. Since that time, Mr. Merrill has been subjected to a consistent pattern of harassment, threats and substantial disturbances at the hands of defendant and/or his guests. Loud parties regularly take place at defendant’s apartment at all hours

of the night, often interfering with Mr. Merrill’s ability to sleep. Mr. Merrill has sought medical treatment as a result. Defendant did not present adequate credible evidence to warrant a finding in his favor. Defendant’s conduct constituted a

 

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serious interference with the quiet enjoyment of others within the premises, giving plaintiff good cause to evict him. G.L. c. 186, s. 14.

 

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial and the reasonable inferences drawn therefrom in light of the governing law it is ordered that judgment enter for plaintiff for possession, plus court costs.

 

 

 

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End Of Decision

 

HOUSING COURT

JAMES A. TOMOLO VS. ANGELA LEMANSKI

 

WORCESTER COUNTY DIVISION

 

 

Docket # SUMMARY PROCESS NO. 09-SP-1908

 

Parties: JAMES A. TOMOLO VS. ANGELA LEMANSKI

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: June 25, 2009

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

In this eviction case, plaintiff seeks possession of the premises from defendant for non-payment of rent. No written answer was filed, and the court finds as follows: Plaintiff owns 49 Rigby Road, Clinton, wherein defendant resides as a tenant. The rent is $825.00 due the first day of each month. Defendant paid no rent for May or June 2009, leaving a total balance of $1,650.00 in unpaid rent due plaintiff, who terminated the tenancy.

Defendant cited a number of defective conditions at the premises as reasons for her non-payment of rent. There exists with respect to every residential tenancy, an implied warranty that the premises are fit for human habitation. A landlord is in breach of the warranty where there exist defects that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the implied warranty occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the apartment.

Section 8A provides that, where a tenancy has been terminated for non-payment of rent, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy, or occupancy for breach of warranty….” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to a defense to possession if the landlord knew or should have known about the defective conditions before the tenant was first in arrears in the rent.

 

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The court finds that defendant is not credible, and credits the testimony of plaintiff. The court finds that plaintiff was made aware of a problem with the hot water heater in January 2004, and that he completed all necessary repairs thereto within about ten days. No subsequent problems with the hot water heater were communicated to plaintiff since. In August 2008, plaintiff was told of problems with the electrical system in the premises. Specifically, the fuses commonly blew when defendant operated an air conditioner. He tried numerous times to contact defendant by telephone and in writing seeking access to the premises to inspect and repair any electrical problem that may exist. Defendant did not respond to plaintiff, who then arranged for an electrician to handle the matter. Defendant failed to cooperate in any measurable way with the electrician. The court finds that neither the 2004 hot water issue nor the August 2008 electrical problems constituted a breach of the warranty of habitability, and that defendant is not entitled to relief under Section 8A with respect to such conditions.

It was not until June 19, 2009 that plaintiff was notified about any other defects at the premises. On that date, defendant filed a written answer to the summary process complaint, citing a number of additional defective conditions at the premises. At trial, she presented photographs of said conditions. Plaintiff was not notified about such defects as required by Section 8A until defendant filed said written answer, at which time defendant was already in arrears in her rent. Accordingly, defendant has not established a defense to possession under Section 8A. The court finds that, with the exception of any reference to the 2004 hot water heater problem and the alleged fuse problems, all other defects cited in defendant’s written answer in the aggregate constituted a breach of the implied warranty of habitability,

entitling defendant to a rent abatement in the amount of $275.00 for the month of June 2009.

 

ORDER FOR JUDGMENT

 

Judgment shall enter in favor of plaintiff (landlord) for possession and unpaid rent damages in the amount of $1,375.00 ($1,650.00 in unpaid rent due plaintiff, minus $275.00 due defendant under Section 8A) through June 2009, plus court costs.

 

 

 

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End Of Decision

 

HOUSING COURT

MARGARET T ARIANSEN Plaintiff VS. RICHARD A. SULLIVAN AND TROY T. KELLY Defendants

 

 

WORCESTER COUNTY DIVISION

 

 

Docket # SUMMARY PROCESS NO. 09-SP-589

 

Parties: MARGARET T ARIANSEN Plaintiff VS. RICHARD A. SULLIVAN AND TROY T. KELLY Defendants

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: May 21, 2009

 

AMENDED ORDER OF JUDGMENT

 

In this eviction case, plaintiff seeks possession from defendants for non-payment of rent. Defendants filed a written answer, and the court finds as follows: Plaintiff owns a single-family residential dwelling at 8 Ted Lane, Southborough, wherein defendants have resided as tenants since November 2008 subject to a written lease. (See Plaintiff’s Trial Exhibit 1). The rent is $1,800.00 due the 1st day of each month. Defendants have not paid any rent since November 2008, leaving a total balance of $7,200.00 in unpaid rent due plaintiff. Plaintiff terminated the tenancy by serving a legally sufficient notice to quit upon defendants on December 20, 2008.

Defendants asserted that defects exist at the premises. There exists with respect to every residential tenancy, an implied warranty of habitability that the premises are fit for human habitation. A landlord is in breach of the warranty where there exist defects that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the implied warranty of habitability occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the premises.

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Section 8A provides that, where a tenancy has been terminated for non-payment of rent, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy, or occupancy for breach of warranty….” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to a defense to possession only if: (1) the landlord knew or should have known

of the conditions before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the conditions; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated. The landlord is not entitled to recover possession of the premises if the court finds that the amount of rent due the landlord equals or is less than the amount due the tenant on his counterclaims and defenses. If the court finds that the amount of rent due the landlord is greater than the amount due the tenant on his counterclaims and defenses, the landlord is not entitled to recover possession provided the tenant pays the balance due the landlord within seven (7) days of the tenant’s receipt of the court’s decision.

For the most part, defendants’ case centered around the on-site septic system servicing the premises, and the disruption claimed to have been caused by the excavation in connection with its replacement. Before they entered into the lease with plaintiff, defendants were made fully aware of the need to replace the septic system. They also knew that plaintiff intended to begin excavation in the late fall of 2008. Nonetheless, the parties reached agreement as to the terms of the tenancy, and defendants moved into the premises with full knowledge that replacement of the septic system would be imminent.

By way of background, plaintiff first experienced trouble with the septic system in February 2008. A minor breach of the system caused back flow of raw sewerage into the

 

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basement. No evidence was presented tending to show that plaintiff was cited for any violations in connection with the septic breach, or any restrictions imposed by the health department in connection therewith. At a cost of approximately $7,000.00, plaintiff hired a professional –restoration company to clean up the premises under the supervision of the Southborough Health Department. Plaintiff was not cited for any sanitary violations and the clean-up was completed without undue delay. Additional septic problems came about approximately a week later, and plaintiff instituted a more frequent pumping schedule since that time. Soon thereafter, plaintiff was notified that the system needed to be replaced. After the necessary plans were drawn and approved, excavation began November 17, 2008. Plaintiff had hired a landscaping contractor to install sod on all excavated areas, which was to begin in December 2008, shortly after the septic system replacement was completed. Winter weather conditions in December prohibited the installation of sod as planned, and plans for sod installation were suspended until spring, after the snow melted and the ground thawed.

Throughout the tenancy, and most notably at the time the septic replacement was underway, plaintiff received no reports that any utilities at the premises, including all bathroom and shower facilities, were in any way unusable or compromised. The only complaint expressed by defendants during the excavation involved the location of the new system. Plans for the new septic installation had been approved by the Southborough Health Department on June 4, 2008. No evidence was presented to show that the septic installation was in variance with said plans.

On November 20, 2008 defendants moved their furniture into the

premises. They assert that their move was substantially interfered with by the conditions caused as a result of plaintiff’s septic installation, specifically the muddy conditions at or around two doorways leading into the house. The court finds that, although two doorways into the house were inaccessible at the time

 

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defendants moved into the house, three alternate access points remained unencumbered and were adequate for defendants’ move into the house.

The court finds that neither the conditions asserted by defendants in connection with the septic installation nor the conditions resulting from the February 2008 septic breach (which conditions had been remedied by plaintiff eight months before entering into the lease with defendants) constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). Neither the conditions created by the septic excavation, nor plaintiffs conduct constituted a breach of defendants’ quiet enjoyment. G.L. c. 186, s. 14.

During the week of March 9, 2009, long after defendants were first in arrears in their rent, and only days prior to trial, defendants first complained to the Southborough Health Department about conditions at the premises. After inspection, the health department issued a written report citing State Sanitary Code violations within the premises. (See Defendants’ Trial Exhibit A). The court finds that the conditions cited in said report constitute minor code violations and in the aggregate do not constitute a breach of the warranty of habitability. Accordingly, defendants are not entitled to relief under G.L. c. 239, s. 8A.

Defendants also asserted that plaintiff violated the terms of the security deposit statute. A security deposit is money collected by a landlord from a tenant under very strict and specific conditions as outlined by G.L. c. 186, s. 15B. Said statute imposes several requirements upon the landlord with respect to security deposits. One such requirement is that the landlord must deposit the security deposit in a separate interest bearing account in a Massachusetts bank within thirty (30) days of receipt of it. Further, the landlord must produce for the tenant a written statement of the condition of the leased apartment upon receipt of the security deposit, or ten (10) days after

 

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the inception of the tenancy, whichever is later. The statute also requires the landlord to, within thirty (30) days of the security deposit payment, notify the tenant of the name and location of the bank holding the security deposit, the account number and the amount deposited. The security deposit must be protected from the reach of landlord’s creditors. In short, the security deposit funds shall continue to be the property of the tenant, not commingled with other assets of the landlord.

The court finds that defendants paid plaintiff a security deposit of $1,800.00 on October 17, 2008. Plaintiff deposited said security deposit funds on December 18, 2008. Accordingly, it shall

be ordered that plaintiff immediately return said security deposit to defendants. As to all other claims asserted in defendants’ written answer, the evidence presented is insufficient for a finding in favor of defendants. Accordingly, judgment shall issue for plaintiff on all said claims.

 

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial and the reasonable inferences drawn therefrom in light of the governing law, it is ordered that judgment enter in favor of plaintiff (landlord) for possession and unpaid rent damages in the amount of $5,400.00 ($7,200.00 in unpaid rent due plaintiff minus return of defendants’ security deposit) through

 

 

 

 

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End Of Decision

 

HOUSING COURT

BRUCE GALLANT AND RAYMOND BISSONNETTE Plaintiffs VS. JOHN BUTLER, RALPH BUTLER AND JENIFER RENEHAN Defendants

 

 

WORCESTER COUNTY DIVISION

 

 

Docket # SUMMARY PROCESS NO. 09-SP-1048

 

Parties: BRUCE GALLANT AND RAYMOND BISSONNETTE Plaintiffs VS. JOHN BUTLER, RALPH BUTLER AND JENIFER RENEHAN Defendants

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: April 17, 2009

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

In this eviction case, plaintiffs seek possession of the premises from defendants for non-payment of rent. No written answer was filed, and the court finds as follows: Plaintiffs own a three-family house at 113 Sixth Street, Fitchburg, wherein defendants, John Butler and Jenifer Renehan, reside as tenants at the third-floor apartment (Apartment #3) subject to a written tenancy agreement. Defendant, Ralph Butler, is a guarantor of the tenancy agreement. The rent is $750.00 due the 1St day of each month. Defendants have paid no rent for February, March or April 2009, leaving a balance of $2,250.00 due plaintiff, who terminated the tenancy.

Defendants testified that defective conditions exist at the premises. They said they had leaky pipes, water damage, a broken stove, dead birds, inadequate hot water, missing/broken window locks, missing window screens, no keys to a lock on their front apartment door, nails/screws protruding through the floor surface, and lighting problems including broken switches. Defendants offered no evidence to support their claims of defective conditions, and the court finds that defendants’ testimony on that issue is not credible. The court credits the testimony of Mr. Bissonnette.

 

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On March 6, 2009, by which time defendants were already in arrears in their rent, plaintiffs responded to a complaint from a second-floor tenant that water was leaking down from defendants’ apartment. Plaintiff, Raymond Bissonnette, immediately inspected defendants’ apartment to determine the source of the leak. While in defendants’ apartment, Mr. Bissonnette learned that the kitchen sink drain was clogged. Defendants had not reported this condition to plaintiffs, nor had they notified plaintiffs about any other defects in their apartment. When plaintiffs first learned of the clogged drain (March 6, 2009), defendants were already behind in their rent. Accordingly, defendants are not entitled to a defense to possession. G.L c. 239, s. 8A.

The court finds that the clogged drain was a minor defect that did not constitute a breach of the implied warranty of habitability. Defendants are not entitled to a rent reduction because of the clogged drain. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973).

Accordingly, it is ordered that judgment shall enter in favor of plaintiffs (landlords) for possession and unpaid rent damages in the amount of $2,250.00 through April 2009, plus costs.

 

SO ORDERED

 

 

 

 

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End Of Decision

 

HOUSING COURT

WESTVIEW HILLS, LLC Plaintiff VS. BETH T. HARRIS Defendant

 

 

WORCESTER COUNTY DIVISION

 

 

Docket # SUMMARY PROCESS NO. 09-SP-609

 

Parties: WESTVIEW HILLS, LLC Plaintiff VS. BETH T. HARRIS Defendant

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: April 6, 2009

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

In this eviction case, plaintiff seeks to recover possession of the premises from defendant for no cause. Defendant filed a written answer that included affirmative defenses and counterclaims, and the court finds as follows: Plaintiff owns a multi-family residential development at 11 Memorial Drive, Rutland, commonly known and referred to as Westview Hills. Defendant first moved into Westview Hills in October 2005. She currently resides at Apartment #2A therein, along with her three minor children, subject to a written lease. Since February 2006, defendant has received a Section 515 project-based rental subsidy through the United States Department of Agriculture financed by the Farmers Home Administration. The purpose of the Section 515 housing subsidy program is to provide adequate, affordable, decent, safe and sanitary rental units for low and moderate income families in rural areas where such housing is less likely to be otherwise available. The housing subsidy cannot be terminated without due process of law.

On October 21, 2008, plaintiff terminated defendant’s tenancy by serving her with a notice to quit. (Plaintiff’s Trial Exhibit 4). Plaintiff brought this action as a no cause eviction, and although plaintiff’s counsel insisted that this action was brought for no cause, said notice to quit alleges a number of lease violations, none of which were proven by a fair preponderance of the evidence at trial.

 

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Defendant asserted that plaintiff brought this eviction action in retaliation after defendant exercised her rights as a tenant. A tenant has a defense to the landlord’s claim for possession under G.L. c. 239, s. 2A and a claim for damages under G.L. c. 186, s. 18, if the landlord’s commencement of a summary process action or his service upon the tenant of a notice of termination upon which the action is based, was in retaliation for, among other things, the tenant’s reporting a violation or suspected violation of law to a health or building department, or reporting a violation or suspected violation of law in writing to the landlord as provided in G.L. c. 186, s. 18. Under Sections 2A and 18, the commencement of a summary process action or the service of a notice of termination within six (6) months of a tenant’s action of reporting to a health or building department, or complaining of such violation or suspected violation in writing to the landlord, creates a rebuttable presumption of retaliation.

In the instant case, defendant began to withhold her rent in May 2008, at which time she notified plaintiff that she planned to continue withholding her rent until certain defective conditions in her apartment were repaired. The specific defects reported to plaintiff included defective windows in her child’s bedroom, an infestation of wasps in her bathroom exhaust vent, and a defective

fan in her bathroom. Said defects were subsequently repaired, upon which time defendant delivered all withheld rent payments to plaintiff. Defendant does not owe any unpaid rent to plaintiff. On September 1, 2008, plaintiff notified defendant of its intent not to renew defendant’s lease, citing material non-compliance with her lease. No opportunity for a hearing was afforded defendant. (Plaintiff’s Trial Exhibit 3).

Plaintiff asserts that the tenancy is contingent upon plaintiff obtaining a guaranty of the lease terms from defendant’s parents as guarantors. The court finds that no such guarantee is required under said lease, and no evidence was presented by plaintiff tending to show that such a guarantee is required under defendant’s federal subsidy. Accordingly, the court finds that no such contingency exists between the parties.

On October 21, 2008, defendant was served with the notice to quit. (Plaintiff’s Trial Exhibit #4). Both the notice of plaintiffs intent not to renew the lease, and the notice to quit

 

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were served upon defendant within six (6) months after tenant’s lawful withholding of her rent, creating a presumption that the eviction was retaliatory.

Plaintiff produced no clear and convincing evidence to rebut said presumption. The court finds that plaintiff decided not to renew the lease and to commence this eviction action solely because defendant exercised her right as a tenant by withholding her rent until plaintiff repaired defective conditions she reported in her apartment.

Plaintiff may only terminate defendant’s tenancy for cause. Further, plaintiff must have cause for its decision not to renew defendant’s lease. At trial, plaintiff did not present adequate evidence to show good cause for not renewing defendant’s tenancy. Similarly, plaintiff failed to present adequate evidence to show good cause to terminate the tenancy. The court finds that plaintiff engaged in acts of reprisal against defendant, and that defendant is entitled to three month’s rent plus a reasonable attorney fee. G.L. c. 239, s. 2A or c. 186, s. 18.

 

ORDER FOR JUDGEMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ordered that judgment enter in favor of defendant (tenant) for possession and three month’s rent pursuant to G.L. c. 239, s. 2A, G.L. c. 186, s. 18. It is further ordered that plaintiff restore defendant’s rental subsidy forthwith and refrain from terminating said rental subsidy without a showing of good cause. Plaintiff is further ordered to pay a reasonable fee directly to defendant’s attorney, the amount of which shall be determined by the court upon the filing of a proper motion and fee affidavit. G.L. c. 186, s. 18.

 

SO ORDERED.

 

 

 

 

 

 

 

End Of Decision

 

HOUSING COURT

SYLVIA A. DENHOLM Plaintiff VS. GREGORY BOUTWELL, MARC SMITH-BROWN, AND MARYIA KRZYMINSKI Defendants

 

 

WORCESTER COUNTY DIVISION

 

 

Docket # SUMMARY PROCESS NO. 09-SP-1690

 

Parties: SYLVIA A. DENHOLM Plaintiff VS. GREGORY BOUTWELL, MARC SMITH-BROWN, AND MARYIA KRZYMINSKI Defendants

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE STICE

 

Date: June 9, 2009

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

In this eviction case, plaintiff seeks possession of the premises from defendants for non-payment of rent. No written answer was filed, and the court finds as follows: Plaintiff owns 6 Stevens Street, Marlborough, wherein defendants reside as tenants-at-will. The rent is $900.00 due the 15th day of each month. Defendants have paid $578.00 toward rent for February 2009, $450.00 for March, $295.00 for April, and nothing since. A total balance of $3,177.00 in unpaid rent is due plaintiff, who terminated the tenancy.

Defendants testified about defective conditions at the premises. There exists with respect to every residential tenancy, an implied warranty of habitability that the premises are fit for human habitation. A landlord is in breach of the warranty where there exist defects that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the implied warranty of habitability occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the apartment. G.L. c. 239, s. 8A.

Under Section 8A, the landlord is not entitled to recover possession of the premises if the court finds that the amount of rent due the landlord equals or is less than the amount due the tenant on his counterclaims and defenses. If the court finds that the amount of rent due the landlord is greater than the amount due the tenant on his counterclaims and defenses, the landlord is not entitled to recover possession provided the tenant pays the balance due the landlord within

 

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seven (7) days of the tenant’s receipt of the court’s decision.

On April 4, 2009, after defendants were already in arrears in their rent, Ms. Krzyminski called the Marlborough Health Department to complain about defective conditions at the premises. After

inspection, the health department sent a written inspection report dated May 19, 2009 to plaintiff citing a number of Sanitary Code violations therein. (See Defendants’ Trial Exhibit A). Plaintiff had no prior knowledge of said conditions, and defendants offered no evidence tending to show that any notice of said defects had been given to plaintiff other than the city’s May 19`’ inspection report. Accordingly, defendants have not established a defense to possession under Section 8A.

The court finds, however, that defendants are entitled to a rent abatement totaling $360.00 for the months of May and June given the defects disclosed to plaintiff in May, which defects in the aggregate constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemintway, 363 Mass. 184, 199 (1973).

 

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ordered that judgment enter in favor of plaintiff (landlord) for possession and unpaid rent damages in the amount of $2,817.00 ($3,177.00 in unpaid rent, minus the $360.00 rent abatement for defective conditions) through June 2009, plus court costs.

 

SO ORDERED:

 

 

 

 

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End Of Decision

 

HOUSING COURT

SYLVIA A. DENHOLM Plaintiff VS. GREGORY BOUTWELL, MARC SMITH-BROWN, AND MARYIA KRZYMINSKI Defendants

 

WORCESTER COUNTY DIVISION

 

 

Docket # SUMMARY PROCESS NO. 09-SP-1690

 

Parties: SYLVIA A. DENHOLM Plaintiff VS. GREGORY BOUTWELL, MARC SMITH-BROWN, AND MARYIA KRZYMINSKI Defendants

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: June 9, 2009

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

In this eviction case, plaintiff seeks possession of the premises from defendants for non-payment of rent. No written answer was filed, and the court finds as follows: Plaintiff owns 6 Stevens Street, Marlborough, wherein defendants reside as tenants-at-will. The rent is $900.00 due the 15` day of each month. Defendants have paid $578.00 toward rent for February 2009, $450.00 for March, $295.00 for April, and nothing since. A total balance of $3,177.00 in unpaid rent is due plaintiff, who terminated the tenancy.

Defendants testified about defective conditions at the premises. There exists with respect to every residential tenancy, an implied warranty of habitability that the premises are fit for human habitation. A landlord is in breach of the warranty where there exist defects that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the implied warranty of habitability occurs from the point in time that the landlord knew or should have

known of a substantial defect or substantial Sanitary Code violation in the apartment. G.L. c. 239, s. 8A.

Under Section 8A, the landlord is not entitled to recover possession of the premises if the court finds that the amount of rent due the landlord equals or is less than the amount due the tenant on his counterclaims and defenses. If the court finds that the amount of rent due the landlord is greater than the amount due the tenant on his counterclaims and defenses, the landlord is not entitled to recover possession provided the tenant pays the balance due the landlord within

 

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seven (7) days of the tenant’s receipt of the court’s decision.

On April 4, 2009, after defendants were already in arrears in their rent, Ms. Krzyminski called the Marlborough Health Department to complain about defective conditions at the premises. After inspection, the health department sent a written inspection report dated May 19, 2009 to plaintiff citing a number of Sanitary Code violations therein. (See Defendants’ Trial Exhibit A). Plaintiff had no prior knowledge of said conditions, and defendants offered no evidence tending to show that any notice of said defects had been given to plaintiff other than the city’s May 19`h inspection report. Accordingly, defendants have not established a defense to possession under Section 8A.

The court finds, however, that defendants are entitled to a rent abatement totaling $360.00 for the months of May and June given the defects disclosed to plaintiff in May, which defects in the aggregate constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973).

 

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ordered that judgment enter in favor of plaintiff (landlord) for possession and unpaid rent damages in the amount of $2,817.00 ($3,177.00 in unpaid rent, minus the $360.00 rent abatement for defective conditions) through June 2009, plus court costs.

SO ORDERED:

 

 

 

 

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End Of Decision

 

HOUSING COURT

ESTELLE OURS Plaintiff VS. MICHAEL OSTASKI AND KAREN WOOD Defendants

 

 

WORCESTER COUNTY DIVISION

 

 

Docket # SUMMARY PROCESS NO. 09-SP-1699

 

Parties: ESTELLE OURS Plaintiff VS. MICHAEL OSTASKI AND KAREN WOOD Defendants

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: June 15, 2009

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

In this eviction case, plaintiff seeks possession of the premises from defendants for non-payment of rent. No written answer was filed, and the court finds as follows: Plaintiff owns 31 Franklin Street, Milford, wherein defendants have resided as tenants at will since January 15, 2009. The rent is $550.00 due the 1 S` day of each month. Defendants paid $260.00 toward rent for February 2009, $100 toward rent for March and nothing since, leaving a total balance of $2,390.00 in unpaid rent due plaintiffs, who terminated the tenancy.

Defendants testified about defective conditions at the premises. There exists with respect to every residential tenancy, an implied warranty of habitability that the premises are fit for human habitation. A landlord is in breach of the warranty where there exist defects that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the implied warranty of habitability occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the apartment. G.L. c. 239, s. 8A.

The premises is heated by oil, which is plaintiff’s responsibility. Several times in the winter of 2009, the furnace

shut down after running out of oil. Some windows are cracked or broken allowing cold air into the premises and causing the thermostat to continuously call for heat, which burned through heating oil at an unusually rapid rate, and caused the fuel tank to run out of oil several times. Many of the windows do not open, close or lock properly, and the linoleum on the bathroom floor is lifting up off the base flooring causing a tripping hazard. All

 

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said conditions existed at the inception of the tenancy, and plaintiff knew or should have known about said defects in January 2009.

The court finds that said conditions, none of which were caused by defendants, in the aggregate constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). G.L. c. 239, s. 8A. Said conditions did not constitute a breach of quiet enjoyment under G.L. c. 186, s. 14.

The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises free of defects and the fair rental value of the premises during the period that the defective condition existed. Boston Housing Authority v. Hemingway, supra; Haddad v. Gonzalez, 410 Mass. 855, 872 (1991). The court finds that the fair rental value of the premises free of defects is the contract rent of $550.00. The fair rental value of the premises given the defective conditions is $366.00.

HOUSING COURT

MICHAEL SPADAFORA Plaintiff VS. BRENDA BACHELDOR AND ERNEST BACHELDOR Defendants

 

WORCESTER COUNTY DIVISION

 

 

Docket # SUMMARY PROCESS NO. 09-SP-1629

 

Parties: MICHAEL SPADAFORA Plaintiff VS. BRENDA BACHELDOR AND ERNEST BACHELDOR Defendants

 

Judge: /s/TIMOTHY SULLIVAN

ASSOCIATE JUSTICE

 

Date: June 15, 2009

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

In this eviction case, plaintiff seeks possession of the premises from defendants for non-payment of rent. No written answer was filed, and the court finds as follows: Plaintiff owns 24 Melrose Street, Fitchburg, wherein defendants have resided as tenants-at-will since 1994. The rent is $550.00 due the 15` day of each month. Defendants paid $20.00 toward rent for November 2008, and nothing since, leaving a total balance of $4,380.00 in unpaid rent due plaintiff, who terminated the tenancy.

Defendant Ernest Bacheldor appeared at trial on behalf of himself and his wife who was unable to appear. Mr. Bacheldor testified about defective conditions at the premises. There exists with respect to every residential tenancy, an implied warranty of habitability that the premises are fit for human habitation. A landlord is in breach of the warranty where there exist defects

that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the implied warranty of habitability occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the apartment. G.L. c. 239, s. 8A.

Mr. Bacheldor cited drafty windows, a defective stove, warped and buckling floors, missing smoke detectors and a hole in the ceiling. He said he neglected to inform plaintiff about any such defects, but insisted that plaintiff should have known about the buckling floors and damaged ceiling, both of which were caused six years ago after an upstairs tenant’s water bed leaked. Because plaintiff knew about the water bed leak, Mr. Bacheldor asserted that the

 

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resulting damage should have also been known to plaintiff. The court finds that, if the floors did buckle, they would have done so some time after the water bed leaked, and plaintiff would be unaware of the condition unless defendants made it known to him. As to the damaged ceiling, Mr. Bacheldor said he repaired the ceiling after it was damaged by the water bed leak. If

defendants believes they are entitled to recover monetary damages for repair work performed at the premises, a hearing would be scheduled in the Small Claims division of this court if defendants choose to file any such claim.

The court finds that plaintiff had no prior knowledge about the conditions complained about at trial, and that the evidence presented is insufficient for a finding that such conditions actually exist at the premises. No other defenses or counterclaims were asserted by defendant. Accordingly, plaintiff is entitled to judgment.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ordered that judgment enter in favor of plaintiff for possession and damages in the amount of $4,380.00 through June 2009, plus court costs.

 

 

 

 

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End Of Decision

 

HOUSING COURT

ANTHONY GARIFO AND LAURA GARIFO Plaintiffs VS. STEPHANIE LYNN AND RICHARD WEIMER Defendants

 

 

WORCESTER COUNTY DIVISION

 

 

Docket # SUMMARY PROCESS NO. 09-SP-1753

 

Parties: ANTHONY GARIFO AND LAURA GARIFO Plaintiffs VS. STEPHANIE LYNN AND RICHARD WEIMER Defendants

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: June 16, 2009

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

In this eviction case, plaintiffs seek possession of the premises from defendants for non-payment of rent. No written answer was filed, and the court finds as follows: Plaintiffs own 117 Pleasant Street, Southbridge, wherein defendants reside as tenants at the 3rd Floor Apartment. The rent is $785.00 due the 1 S` day of each month. Defendants have paid no rent for May or June, leaving a balance of $1,570.00 in unpaid rent due plaintiffs, who terminated the tenancy.

Defendants testified that conditions at the premises are defective. There exists with respect to every residential tenancy, an implied warranty of habitability that the premises are fit for human habitation. A landlord is in breach of the warranty where there exist defects that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the implied warranty of habitability occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the apartment. G.L. c. 239, s. 8A.

On April 27, 2009, the Southbridge Health Department inspected the premises and sent plaintiffs a written notice citing a number of defects found therein. (See Defendant’s Trial Exhibit A). The report was the first written notice received by plaintiffs informing them of said conditions. At that time, defendants owed no rent to plaintiff. Accordingly, defendants established a defense to possession under Section 8A.

The court finds that the defective conditions cited, none of which were caused by

 

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defendants, in the aggregate constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). G.L. c. 239, s. 8A. Said conditions did not constitute a breach of quiet enjoyment under G.L. c. 186, s. 14.

The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises free of defects and the fair rental value of the premises during the period that the defective condition existed. Boston Housing Authority v. Hemingway, supra; Haddad v. Gonzalez, 410 Mass. 855, 872 (1991). The court finds that the fair rental value of the premises free of defects is the contract rent of $785.00. The fair rental value of the premises given the defective conditions that existed since April 2009 is $525.00.

The value of the premises from April 2009 (taking into account the existing defects that exist) totals $1,575.00. During that same period of time, defendants paid plaintiffs $785.00 in rent, leaving a balance of $790.00 due plaintiffs under Section 8A.

 

ORDER FOR JUDGMENT

Judgment shall enter in favor of defendants (tenants) for possession on the condition that within seven (7) days of receipt of this order, defendants deposit with the Clerk of this court the sum of $790.00 by bank check or money order payable to Anthony and Laura Garifo. If this deposit is made, the Clerk shall immediately release all such funds to plaintiffs. If the deposit is not made, judgment shall automatically enter in favor of plaintiffs

(landlords) for possession and unpaid rent damages in the amount of $790.00 through June 2009, plus court costs.

 

 

 

 

 

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End Of Decision

 

HOUSING COURT

ROBERT RUSSO Plaintiff VS. TAMU BROBBY Defendant

 

 

WORCESTER COUNTY DIVISION

 

 

Docket # SUMMARY PROCESS NO. 09-SP-1550

 

Parties: ROBERT RUSSO Plaintiff VS. TAMU BROBBY Defendant

 

Judge: /s/TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

 

Date: June 16, 2009

 

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

 

In this eviction case, plaintiff seeks possession of the premises from defendant for non-payment of rent. Defendant filed a written answer, and the court finds as follows: Plaintiff owns 9 Chester Street, Fitchburg, wherein defendant resides as a tenant. The rent is $675.00 due the 1st day of each month. Defendant has a long history of non-payment or late-payment of her rent, and currently owes $4,310.00 in unpaid rent to plaintiff, who terminated the tenancy.

Defendant testified that conditions at the premises are defective. There exists with respect to every residential tenancy, an implied warranty of habitability that the premises are fit for human habitation. A landlord is in breach of the warranty where there exist defects that may materially affect the health or safety of the occupants. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973). A breach of the implied warranty of habitability occurs from the point in time that the landlord knew or should have known of a substantial defect or substantial Sanitary Code violation in the apartment. G.L. c. 239, s. 8A.

In May 2009, after receiving plaintiffs April 14`h notice to quit for non-payment of rent, defendant called the Fitchburg Health Department to complain about the conditions of the premises. After a May 28`h inspection, health officials sent plaintiff a written notice citing a number of defects therein. (See Defendant’s Trial Exhibit A). An ice dam had damaged the premises last winter, which plaintiff learned about immediately after it occurred in January 2009. At that time, defendant was already in arrears in her rent. As to all the other defects cited by the health department, plaintiff first learned about said defects when he received the health

 

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inspector’s report in June 2009, and defendant was still in arrears in her rent. At no time did defendant ever notify plaintiff of any such defects as required by Section 8A. Accordingly, defendant did not establish a defense to possession. The defects were repaired by plaintiff on or before June 10, 2009. (See Plaintiff’s Trial

Exhibit 3).

The court finds that the defective conditions cited, none of which were caused by defendant, in the aggregate constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). G.L. c. 239, s. 8A. Said conditions did not constitute a breach of quiet enjoyment under G.L. c. 186, s. 14.

The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises free of defects and the fair rental value of the premises during the period that the defective condition existed. Boston Housing Authority v. Hemingway, supra; Haddad v. Gonzalez, 410 Mass. 855, 872 (1991). The court finds that the fair rental value of the premises free of defects is the contract rent of $675.00. The fair rental value of the premises given the defective conditions is $500.00. Accordingly, defendant is entitled to a rent abatement in the amount of $175.00 for each of the months of May and June 2009, leaving a total balance of $3,960.00 in unpaid rent due plaintiff in accordance with Section 8A.

As to all other claims asserted in defendant’s written answer, no evidence was presented to support said claims, and judgment shall enter in favor of plaintiff thereon.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ordered that judgment enter in favor of plaintiff (landlord) for possession and unpaid rent damages in the amount of $3,960.00 through June 2009, plus court costs.

 

 

 

 

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End Of Decision