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Housing Court Judge TIMOTHY F. SULLIVAN, cases from 2013 to mid-2014

Docket No.:NO. 13-SP-1799

Parties:KAREN J. LACAS, Plaintiff VS. TRACEY MERCADO AND KENNY MERCADO, Defendants

Judge:/s/ TIMOTHY F. SULLIVAN

Date:June 4, 2013

WORCESTER DIVISION

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR 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 a four-family residential dwelling at 298 School Street Athol, wherein defendants reside as tenants at Apartment #2. The rent is $650.00 due the 1St day of each month. Defendant owe $400.00 toward rent for December 2012, and $650.00 for each of the months of March, April and May 2013, leaving a balance of $2,350.00 in unpaid rent due plaintiff, who terminated the tenancy.

Defendants asserted that they withheld rent because of defects in their apartment in violation of G.L. c. 239, s. 8A. 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 thc 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 late March or early April 2013, defendants complained to the Athol Health Department about defects in their apartment. Health officials inspected the premises on April 9, 2013, and sent a written report (Exh. A) to plaintiff citing a number of Sanitary Code violations therein. The court finds that, with the exception of the removal of the stove and the broken window in the front bedroom, both of which conditions were caused by defendants, all remaining defects cited by the health department in the aggregate constituted a breach of the implied warranty of

 

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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 $650.00, and that the fair rental value given said defects is reduced by 30% to $455.00.

Plaintiff knew or should have known about said defective conditions at the inception of the tenancy in September 2012, before defendants were first 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 from September 2012 (taking into account the defective conditions that existed) totals $4,095.00. During that same period of time, defendant paid $3,500.00 in rent to plaintiff. Accordingly, the amount due plaintiff is $595.00 under Section 8A.

As to all other claims asserted by defendants, the evidence presented is insufficient for a finding in defendants’ favor. Accordingly, judgment shall enter for plaintiff on all said 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 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 $595.00 by bank check or money order made payable to plaintiff. 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 $595.00 through May 2013, plus court costs.

 

SO ORDERED:
/s/ TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

June 4, 2013

 

 

Docket No.:SUMMARY PROCESS NO. 13-SP-781

Parties:LEON M. KATCHADORIAN, Plaintiff VS. MICHAEL LARSON, Defendant

Judge:/s/ TIMOTHY F. SULLIVAN

Date:June 20, 2013

WORCESTER DIVISION

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

In this Summary Process action, plaintiff seeks 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 a four-family residential dwelling at 94 Woodland Street, Worcester, wherein defendant has resided as a tenant-at-will at Apartment 1L since March 26, 2012. The rent is $800.00 due the first day of each month. Defendant has a history of non-payment or late payment of his rent. He paid $400.00 toward February 2013 rent, and nothing since, leaving a balance of $2,800.00 in unpaid rent due plaintiff through May 2013. On February 6, 2013, plaintiff terminated the tenancy by serving defendant with a legally sufficient fourteen (14) day notice to quit (Exh. 1) for non-payment of rent.

Defendant asserted a defense to possession pursuant to G.L. c. 239, s 8A, claiming that 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

 

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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 of the conditions before the tenant was first in arrears in his rent, and the landlord does not show that the tenant caused the conditions. 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 August 2012, plaintiff was made aware of an infestation of mice at the premises. Twenty glue traps were placed inside the apartment, some of which trapped mice. The mice population expanded in the colder months of December 2012, and January 2013. On or about February 27, 2013, an exterminator treated the apartment. No further complaints of mice were made to plaintiff since.

The court finds that the mouse infestation was a defective condition that constituted a breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, supra. Defendant did not cause the defective condition. 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,

 

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410 Mass. 855, 872 (1991). The court finds that the fair rental value of the premises free of defects is the contract rent of $800.00, and that the fair rental value given the mouse infestation has been reduced by 10% to $720.00.

Since plaintiff knew about the defective condition before defendant was 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 2012 (taking into account the rent abatement due defendant because of the mouse infestation that existed from August 2012 through February 2013) totals $7,440.00. During that same period of time, defendant paid plaintiff $5,200.00 in rent, leaving a total balance of $2,240.00 in unpaid rent due plaintiff under Section 8A.

Defendant also asserted counterclaims pursuant to state and federal fair housing laws, alleging that plaintiff made verbal statements relative to the rental of housing that indicated a preference, limitation or discrimination in violation of defendant’s rights under G.L. c. 151B, s. 4 (7B) and 42 U.S.C. s. 3604(c).

G.L. c 151B, s. 4 (7B) provides in relevant part that, “It shall be an unlawful practice [for] any person to make.. .any statement.. .with respect to the …rental of multiple dwelling, contiguously located, publicly assisted or other covered housing accommodations that indicates any preference, limitation or discrimination….”

Similarly, the federal Fair Housing Act, 42 U.S.C. s. 3604(c) provides in relevant part that, “…[I]t shall be unlawful…to make, print or publish.. .any statement.. .with respect to the.. .rental of a dwelling that indicates any preference , limitation or discrimination based on…handicap…or an intention to make any such preference, limitation or discrimination.”

A person with HIV is disabled under fair housing laws.

Unbeknownst to plaintiff at the inception of the tenancy, Defendant is HIV positive.

 

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Due to his HIV positive status, defendant is eligible for case management services through AIDS Project Worcester (“APW”), a non-profit agency located in Worcester. Defendant’s case manager is Carla Rodriguez. In an effort to determine defendant’s eligibility for assistance with utility bills, Ms. Rodriguez mailed a form to plaintiff in June 2012 to verify defendant’s tenancy.

Her correspondence to plaintiff included no reference to APW or AIDS. Plaintiff completed the form, and mailed it back to Ms. Rodriguez. A similar process was undertaken in September 2012 to assist defendant with payment of his rent arrearage. Due to a mailing glitch involving the verification form in June 2012, Ms. Rodriguez opted to meet plaintiff in person on October 9, 2012 to expedite the processing of the necessary paperwork. Ms. Rodriguez arranged to meet plaintiff on a street corner near APW’s offices. Before Ms. Rodriguez arrived at the prearranged location, plaintiff noticed her leaving the APW offices, which is clearly identified by signage posted on the building. At that time, plaintiff inquired with Ms. Rodriguez as to whether she works for an AIDS organization, and whether defendant has AIDS. After signing the necessary verification forms, plaintiff drove to the rented premises, and confronted defendant, asking defendant if he had AIDS. Defendant explained that he is HIV positive, but that he does not have full-blown AIDS. Plaintiff angrily expressed regret that he had signed the verification documents with APW, and said he wanted defendant to vacate the premises. Plaintiff made similar statements about the tenancy during an encounter with defendant at the premises on February 27, 2013. Plaintiff met an exterminator at the premises that day in response complaints about mice. He entered defendant’s kitchen with the exterminator. Defendant and Ms. Rodriguez were present. The exterminator left a short time later after completing his work. Immediately after the exterminator left the premises, plaintiff asked defendant if he had received the court papers. Defendant explained that he had a way of eliminating his rent arrearage with

 

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the help of APW. Plaintiff made it clear that he was not interested in collecting any rent payments from defendant or anyone else on defendant’s behalf. Plaintiff made direct reference to defendant’s HIV status, and made it abundantly clear that he simply wanted defendant out of the apartment.

Plaintiff’s statements, together with his refusal to accept the rent payments offered by APW, and pursue the eviction of defendant, clearly indicate a discriminatory preference in violation of state and federal law, entitling defendant to $10,000.00 in compensatory damages. Plaintiff’s discriminatory conduct was intentional and willful, entitling defendant to treble damages ($30,000.00) under G.L. c. 93A, plus a reasonable attorney fee. The court declines to award defendant additional punitive damages in this case. The court finds that, on the credible evidence, defendant is not entitled to an award of monetary damages for emotional distress.

 

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 for possession, plus monetary damages in the amount of $27,760.00 ($30,000.00 due defendant pursuant to G.L. c. 151B, s. 4(7B), and 42 U.S.C. 3604 (c), and G.L. c. 93A, plus $560.00 due defendant pursuant to G.L. c. 239, s. 8A, minus $2,800.00 in unpaid rent due plaintiff) through May 2013, plus defendant’s attorney fee, the reasonableness of which shall be determined by the court after hearing.

 

SO ORDERED:
/s/ TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

June 20, 2013

 
Docket No.:NO. 13-SP-379

Parties:STEVEN BANDILLA, Plaintiff VS. DANIELLE SHAW, Defendant

Judge:/s/ TIMOTHY F. SULLIVAN

Date:March 5, 2013

WORCESTER DIVISION

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 44 Cohasse Street, Southbridge, wherein defendant resides as a tenant subject to a lease (Exh. 1) at Apartment #2-B. The rent is $500.00 due the 5′ day of each month. Defendant paid $410.00 toward rent for October 2012, and nothing since, leaving a balance of $2,090.00 in unpaid rent due plaintiff, who terminated the tenancy (Exh. 2).

Defendant testified that she experienced sixteen interruptions of heat and hot water from mid-November through December 2012, because plaintiff failed to supply adequate amounts of oil for the heating system. Defendant informed plaintiff immediately upon the first interruption of heat and hot water in mid-November 2012. At that time, defendant was already in arrears in her rent. Accordingly, defendant did not establish a defense to possession under G.L. c. 239, s. 8A. After she continued to deal with the periodic lack of heat and hot water due to lack of oil, defendant complained to the Southbridge Health Department. After inspecting the premises on January 7, 2013, health officials sent a written report (Exh. A) to plaintiff citing a number of

 

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defective conditions therein. Said defects were corrected in January 2013. The court finds that the conditions cited in said inspection report, none of which were caused by defendant constituted a breach of defendant’s quiet enjoyment of the premises, entitling defendant to monetary damages of three times the monthly rent ($1,500.00), leaving a balance of $590.00 in unpaid rent due plaintiff under G.L. c. 186, s. 14.

 

ORDER FOR JUDGMENT

Judgment shall enter in favor of plaintiff for possession and unpaid rent damages of $590.00 through February 2013, plus court costs.

 

SO ORDERED:
/s/ TIMOTHY F. SULLIVAN

ASSOCIATE JUSTICE

March 5, 2013

 

 
Docket No.:SUMMARY PROCESS NO. 13-SP-1657

Parties:STEVEN T. SHADE Plaintiff VS. GERRY PAOLINI AND JOANNE SWIFT PAOLINI Defendants

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

Date:May 22, 2013

WORCESTER COUNTY DIVISION

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

In this eviction case, plaintiff seeks possession of the premises from defendants for nonpayment of rent. No written answer was filed, and the court finds as follows: Plaintiff owns 64-66 Stockton Street, Worcester, wherein defendants have resided as tenants for approximately seven years. The rent is $900.00 due on the first day of each month. Defendants paid no rent since March 2013, leaving a balance of $1,800.00 in unpaid rent due plaintiff, who terminated the tenancy.

Defendants asserted a defense to possession and counter claims under the provisions of G.L. c. 239, s 8A, alleging that plaintiff breached the implied warranty of habitability. 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 May 6, 2013, The Worcester Health Department conducted an inspection of the premises, after which, health officials sent plaintiff a written report (Exh. A) citing a number of Sanitary Code violations therein. The court finds that the defective conditions cited in said inspection report, none of

 

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which 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 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 amount of $900.00, and that the fair rental value of the premises given the existence of said defective conditions was reduced by 20% to $720.00.

Plaintiff knew or should have known about said defective conditions in March 2013, before defendants were first 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 from March 1, 2013 (taking into account the defective conditions cited) is $2,160.00. During that time, defendants paid $900.00 in rent, leaving a balance of $1,260.00 in unpaid rent due plaintiff in accordance with 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 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 $1,260.00 by bank check or money order made payable to plaintiff. 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 $1,260.00 through May 2013, plus court costs.

 

SO ORDERED:

/s/ TIMOTHY F. SULLIVAN, ASSOCIATE JUSTICE

May 22, 2013

 

 

 

Docket No.:SUMMARY PROCESS NO. 13-SP-355

Parties:JOSHUA GAVAL Plaintiff VS. DAVID MITCHELL, A/K/A DAVID WILLIAMS Defendant

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

Date:February 21, 2013

WORCESTER COUNTY DIVISION

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, and the court finds as follows: Plaintiff is the property manager for the premises at 19-21 Lancaster Street, Worcester, wherein defendant resides as a tenant-at-will at Apartment #2L. The rent is $600.00 due the first day of each month. Defendants paid no rent for December 2012, January 2013, or February 2013, leaving a balance of $1,800.00 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. 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.

In December 2012, defendant complained to the Worcester Health Department about a number of defective conditions at the premises. Health officials conducted an inspection of the premises on December 26, 2012, and sent plaintiff written reports (Exh. A) citing a number of

 

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Sanitary Code violations therein. The court finds that said defective conditions as cited in Exhibit A, 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. 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 the breach of warranty 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 conditions 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 $600.00, and that the fair rental value of the premises during the period of time that said defects existed shall be reduced by one-third to $400.00.

Plaintiff first knew about the defective conditions in December 2012, before defendant was first in arrears in the rent. Accordingly, defendant established a defense to possession under G.L. c. 239, s. 8A. The fair rental value of the premises from December 2012 (taking into account the defective conditions) totals $1,200.00. During that same period of time, defendant paid no rent to plaintiff, leaving a balance of $1,200.00 in unpaid rent due plaintiff under Section 8A.

The court finds that plaintiff terminated the tenancy solely because of defendant’s failure to pay his rent. Plaintiff’s conduct did not constitute an act of retaliation. As to the alleged lockout from the basement, the court finds that although plaintiff locked the basement door due to unauthorized storage of trash by tenants, and suspected tampering with the heating system, defendant was never denied access to that area of the premises, and may still gain access to the basement area provided such access is requested, and provided further that defendant be accompanied to the basement by plaintiff or plaintiff’s agent. Accordingly, defendant is not entitled to relief under G.L. c. 186, s. 14.

As to all other claims asserted by defendant, the court finds that defendant’s testimony is not credible, and that the credible evidence presented does not support a finding in defendant’s favor. Accordingly, judgment shall enter in favor of plaintiff on all said claims.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial and the reasonable

 

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inferences drawn therefrom in light of the governing law, 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 $1,200.00 by bank check or money order made payable to plaintiff. 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 for plaintiff for possession and damages in the amount of $1,200.00 through February 2013, plus court costs.

 

SO ORDERED:

/s/ TIMOTHY F. SULLIVAN, ASSOCIATE JUSTICE

February 21, 2013

 

 
Docket No.:SUMMARY PROCESS NO. 13-SP-4403

Parties:CHESTER RUCKEY Plaintiff VS. EDWARD FENNER AND ANN MARIE ZABRA Defendant

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

Date:December 3, 2013

WORCESTER COUNTY DIVISION

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR 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 171 Woodland Avenue, Gardner, wherein defendants have resided as tenants-at-will since August 2009. Plaintiff testified that no written tenancy agreement exists, and no such written agreement was introduced at trial. The rent is $725.00 due the first day of each month. Defendants paid $60.00 toward October 2013 rent, and nothing since, leaving a balance of $1,390.00 in unpaid rent due plaintiff, who terminated the tenancy.

G.L. c. 186, s. 14 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).

Throughout the tenancy, defendants have been made responsible for the payment of

 

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utilities. The responsibility to pay utilities was transferred to defendants without a written agreement, in violation of G.L. c.186, s. 14. The absence of such a written agreement constituted a serious impairment of the character and value of the rented premises, entitling defendants to monetary damages equal to three times the monthly rent ($2,175.00) plus a reasonable attorney fee. G.L. c. 186, s. 14. Plaintiffs breach of quiet enjoyment further constituted a violation of the Consumer Protection statute, entitling defendants to minimum statutory damages of $25.00 plus a reasonable attorney fee. G.L. c. 93A. Given that no attorney appeared for defendants, no attorney fee shall be awarded.

 

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, and monetary damages in the amount of $810.00, ($2,175.00 due defendants under G.L. C. 186, s. 14, plus minimum statutory damages due defendants under G.L. c. 93A, minus unpaid rent damages of $1,390.00 due plaintiff through November 2013).

 

SO ORDERED:

/s/ TIMOTHY F. SULLIVAN, ASSOCIATE JUSTICE

December 3, 2013