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Housing Court Judge JEFFREY M. WINIK, cases from 2013 to mid-2014

Docket No.:NO. 13H84SP004205

Parties:MILDRED POWERS, Plaintiff VS. ABDULRAHMAN ISMAIL, Defendant

Judge:/s/ JEFFREY M. WINIK

Date:December 4, 2013

BOSTON DIVISION

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

This is a summary process action in which the plaintiff is seeking to recover possession of the premises from the defendant for non-payment of rent. The defendant filed a written answer that included affirmative defenses and counterclaims.

Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds as follows:

The plaintiff, Mildred Powers, owns the three-family dwelling at 8 Hosmer Street, in the Mattapan section of Boston. The plaintiff has owned the property since 1971 and occupies the first floor apartment. The defendant, Abdulrahman Ismail, resides at 8 Hosmer Street, Apartment 2, as a tenant at will. He has occupied a room in Apartment 2 since April 2012. He originally rented the room from the plaintiffs nephew. The plaintiffs nephew moved from Apartment 2 in March 2012. The defendant remained as a tenant.[1] I find that the defendant’s monthly rent is $550.00 per month.

 

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[1] At various times over the period from April 2012 to the present the plaintiff has rented rooms in Apartment 2 to at least two other persons.

 

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I find that between April 2012 and December 2013 the defendant paid the plaintiff no more than $400.00 as rent in total. I credit the plaintiff and find that the defendant did not make any other payments to the plaintiff (or to the plaintiff’s relative living in Jamaica at the plaintiff s direction) from April 2012 through December 2013. I do not credit the defendant’s testimony that certain receipts he submitted in evidence show that he made at least nine rent payments to the plaintiff during his twenty-one month tenancy. The plaintiff testified that she never gave the defendant the receipts he produced. I credit her testimony. I do not find reliable the numbered receipts that the plaintiff claims were given to him by the plaintiff each time he paid rent. First, the receipts are not signed by the plaintiff. Second, and most telling, the numerical sequence of the receipts (all starting with “552”) which purportedly show seven payments between April 2012 and September 2013, are out of sequence. For example while the receipt for February 2013 is number 552117, the receipt for May 2013 is number 552104.

I find that the defendant currently owes a total of $11,150.00 in unpaid rent.[2] On April 11, 2013, the plaintiffs constable served the defendant “in hand” with a legally sufficient fourteen (14) day notice to quit for non-payment of rent. I do not credit the defendant’s testimony that he did not receive the notice.

I find that the defective conditions set forth in the violation notices from the City of Boston Inspectional Services Department (“ISD”) dated October 24, 2012 existed at the inception of the defendant’s tenancy and continue to exist. I find that from the inception of the defendant’s tenancy in April 2012 the plaintiff knew or should have known of these conditions. Further, the utility account for electricity provided to Apartment 2 was opened and maintained by the defendant. There was no written agreement between the plaintiff and the defendant that shifted responsibility for the electricity from the plaintiff to the defendant. The defendant did not provide evidence (other then one utility bill) to establish the total amount he paid for electricity during his tenancy.

The defendant is entitled to an affirmative defense to possession under G.L. c. 239, § 8A because the plaintiff knew of the defective conditions at the inception of the defendant’s tenancy

 

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[2] The defendant posted the November 2013 rent ($550.00) with the Housing Court Clerk in compliance with the court’s October 24, 2013 order.

 

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with the plaintiff in April 2012, prior to the date on which the defendant was first in arrears in his rent.

The existence of the defective conditions constitutes a material 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 conditions existed. Boston Housing Authority v. Hemingway, supra; Haddad v Gonzalez, 410 Mass. 855, 872 (1991). The fair rental value of the premises free of defects is the agreed upon contract rent of $550.00. I find that due to the defective conditions, the fair rental value of the premises was diminished by 20% from April 2012 to December 2013. The damages for breach of the implied warranty of habitability total $2,310.00.[3]

I find that the plaintiff’s failure to take reasonable action to correct the sanitary code violations over a significant period and the transfer of responsibility to the defendant for the payment of electricity without a written agreement constitutes a breach of the statutory covenant of quiet enjoyment, G.L. c. 186, § 14 and a violation of the consumer protection act, G.L. c. 93A. The defendant did not present sufficient evidence to establish actual damages relating to the utility transfer violation. The only actual damages the defendant has established for violation of Section 14 and Chapter 93A are for diminution of the fair rental value of the premises ($2,310.00). The actual damages are greater than the statutory damages (three month’s rent under Section 14 and $25.00 under Chapter 93A).

The defendant is not entitled to cumulative damages arising from the same operative facts. Wolfberg v. Hunter, 385 Mass. 390 (1982). The defendant’s warranty, quiet enjoyment and consumer protection claims arise from the same operative facts. I shall award him only one measure of damages in the amount of $2,310.00.

Accordingly, the amount due the plaintiff pursuant to G.L. c. 239, § 8A is $8,840.00 ($11,150.00 — $2,310.00).

There is no evidence that the plaintiff engaged in any acts of reprisal directed against the defendant. I find that the sole reason the plaintiff terminated the defendant’s tenancy was

 

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[3] $550.00 x .20 = $110.00 x 21 months = $2,310.00.

 

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because the defendant had failed to pay any rent. She would have taken this action even if the defendant had not complained to ISD and to the plaintiff about defective conditions. Accordingly, the defendant has not established a counterclaim for damages pursuant to G.L. c. 186, § 18 or a defense to possession pursuant to G.L. c. 239, § 2A.

There is no evidence that the plaintiff caused any injury to the defendant’s person or his property as a result of any breach of duty of care she may have owed the defendant. Accordingly, the defendant has not established a counterclaim based upon negligence.

There is no evidence that the defendant gave the plaintiff a security deposit or a last month’s rent deposit. Accordingly, the defendant has not established a counterclaim based upon a violation of G.L. c. 186, § 15B.

There is no evidence that the plaintiff engaged in any act of discrimination directed against the defendant. Accordingly, the defendant has not established a counterclaim for discrimination pursuant to G.L. c. 151B.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that:

 

1. Judgment shall enter for the plaintiff for unpaid rent in the amount of $8,840.00 ($11,150.00 set off against the warranty damages of $2,310.00).

 

2. If the defendant deposits with the Clerk of this Court the sum of $8,290.00 ($8,840.00 less $550.00 posted with the clerk) in the form of a money order payable to “Clerk, Boston Housing Court” by December 10, 2013, then pursuant to the fifth paragraph of G.L. c. 239, §8A judgment shall enter for the defendant for possession. The Clerk is directed to release these funds to the plaintiff after ISD confirms that all sanitary code violations have been corrected.

 

3. If the defendant does not deposit $8,290.00 with the Clerk by December 10, 2013, then judgment shall automatically enter in favor of the plaintiff for possession, plus costs, on December 11, 2013.

 

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4. Judgment shall enter for the defendant on his breach of warranty (Count 1), quiet enjoyment (Count 3) and consumer protection act (Count 6) counterclaims with the actual damages of $2,310.00 set off against the unpaid rent damages as set forth in ¶ 1 above.

 

5. Judgment shall enter for the plaintiff on the defendant’s retaliation (Count 2), negligence (Count 4), security deposit (Count 5), discrimination (Count 7) and last month’s rent deposit (Count 8) counterclaims.

 

SO ORDERED.

 

/s/ JEFFREY M. WINIK

FIRST JUSTICE

December 4, 2013

 

 

 

 

Docket No.:SUMMARY PROCESS NO. 13H84SP000110

Parties:JEFF HALL, Plaintiff VS. DERRICK YOUNG, Defendant

Judge:/s/ JEFFREY M. WINIK

Date:February 14, 2013
BOSTON DIVISION

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

This is a summary process action in which the plaintiff is seeking to recover possession of the premises from the defendant for non-payment of rent. The defendant filed an answer that included affirmative defenses and counterclaims.

Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds as follows:

The plaintiff, Jeff Hall, owns a residential condominium unit (Unit 2) in a two-unit condominium at 51 Waldeck Street, in the Dorchester section of Boston. The defendant, Derrkick Young, has occupied Unit 2 since August 2011. He occupied the unit subject to a written lease through August 2012. Since September 1, 2012, the defendant has occupied Unit 2 as a tenant at will. The agreed upon monthly rent is $1,500.00 due on the first day of each month. The defendant has not paid rent for November 2012, December 2012, January 2013 and February 2013. This totals $6,000.00 in unpaid rent.

On November 19, 2012, the plaintiff sent the defendant a legally sufficient notice to quit without alleging any cause. The tenancy terminated in accordance with the notice at the expiration of December 2012.

 

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This is the second eviction action involving these parties and Unit 2. In a decision dated November 5, 2012, the court (Muirhead, J.) found that the defendant had failed to pay rent totaling $4,500.00 (rent due for August, September and October 2012). She awarded the plaintiff damages in that amount. On the claim for possession the judge found for the defendant because there was no evidence that the plaintiff had served the defendant with a legally sufficient notice to quit. With respect to the defendant’s G.L. c. 186, s. 14 quite enjoyment counterclaim, the judge found that the plaintiff knew from the inception of the defendant’s tenancy that lines running from the defendant’s electric and gas meters (the defendant was obligated to pay for his own electricity and gas) were cross-metered and connected to a common clothes dryer in the basement of the condominium. The dryer was used by the defendant and by the occupant of the second unit. The judge awarded the defendant statutory damages in the amount of $4,500.00 (three months rent). The judge also found for the defendant on his retaliation counterclaim under G.L. c. 186, s. 18 because the plaintiff terminated the defendant’s tenancy after he had received a violation notice from the City of Boston Inspectional Services Department (“ISD”) regarding cross-metering. The judge awarded the defendant $1,500.00 (one months rent) on that counterclaim. The judge found in favor of the plaintiff on the defendant’s breach of contract and defamation counterclaims. The judge setoff the rent claim and counterclaim damages, and entered judgment in favor of the defendant in the net amount of $1,500.00.

The plaintiff has not satisfied that judgment. Accordingly, I shall apply the $1,500.00 judgment amount to the rent due for November 2012. The amount owed by the defendant in this second summary process action for unpaid rent is therefore $4,500.00 (rent due for December 2012, January and February 2013).

The defendant cannot assert affirmative defense or counterclaims involving allegations prior to November 5, 2012 (the date of the first judgment).

Defendant’s Quiet Enjoyment Counterclaim. The quiet enjoyment statute, 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 month’s rent, whichever is greater …” While the statute does not require that the landlord’s conduct be intentional, Simon v. Solomon, 385 Mass. 91 (1982), it does require proof that the landlord’s conduct caused a serious interference with the tenant’s quiet enjoyment of the premises. A

 

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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). With respect to defective conditions, a landlord violates G.L. c. 186, s. 14 where she had notice, or reason to know of a serious condition adversely affecting the tenant’s use of the apartment, and failed to take appropriate corrective measures. Al Ziab v. Mourgis, 424 Mass. 847, 850-851 (1997); Cruz Management Co., Inc. v. Thomas, 417 Mass. 782 (1994).

The defendant has again alleged that the plaintiff is responsible for improper cross-metering of utilities that the judge in the first summary process case found to have existed. The plaintiff corrected the electricity cross-metering problem by September 27, 2012. The plaintiff has attempted to address the gas line cross-metering problem since August 2012; however, the defendant has on various occasions since August 2012 refused to allow the plaintiff’s plumber access to the basement and on other occasions has ordered the plumber to leave. I find that the defendant’s actions have substantially contributed to the plaintiffs inability to correct the gas cross-metering problem. In any event, the plaintiff has now decided to install a separate dryer that will be wired through the Unit 1 electric box. That dryer will be reserved for the exclusive use of the Unit 1 tenant. The existing dryer will be reserved for the exclusive use of the defendant.

I find base upon these facts that the defendant has failed to establish that since November 5, 2012 the plaintiff has interfered with the defendant’s quiet use and enjoyment of the premises based upon cross-metering.

Defendant’s Conditions-Based Counterclaims. 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 this warranty where there exist defects that may materially affect the health or safety of 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 when a landlord had notice or should have known of a substantial defect or substantial Sanitary Code violation in the apartment. The breach continues until the defect or violation is remedied. Berman & Sons, Inc. v. Jefferson, 379 Mass. 196 (1979) [landlord in breach of warranty from first notice of substantial Sanitary Code violations that recurred over a period of time despite the

 

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landlord’s efforts to repair]. “The existence of a material breach is a question of fact to be determined in the circumstances of each case.” Boston Housing Authority v Hemingway, supra. at 200. The factors which the court may consider in determining whether a breach is material include, but are not limited to: (1) the seriousness of the defect; (2) how long the defect persists; (3) whether the landlord received written or oral notice of the defect; (4) whether the defect could be corrected within a reasonable period of time; and (5) whether the defects were caused by the tenant. Id., at pages 200-201. The Hemingway court stated that ” … there may be instances of isolated Code violations which may not warrant a decision that the premises are uninhabitable. The trial court must have the same broad discretion to determine whether there is a material breach given the special circumstances of each case as that accorded by the board of health …” Id. at page 201, note 16.

The evidence does not support the defendant’s claim that the plaintiff has failed to maintain Unit 2 in good repair. There is no evidence that there existed any defects relating to heat, hot water, infestation or security. Accordingly, the plaintiff is entitled to judgment on the defendant’s breach of implied warranty of habitability counterclaim. Further the plaintiff is entitled to judgment on the defendant’s quiet enjoyment counterclaim based upon defective conditions.

Defendant’s Chapter 93A Counterclaim. The defendant has failed to establish that the plaintiff is engaged in trade or commerce as that term is used in G.L. c. 93A. Accordingly, the plaintiff is entitled to judgment on the defendant’s G.L. c. 93A counterclaim.

Defendant’s Security Deposit Counterclaim. The defendant has failed to establish that the plaintiff violated any provision of the security deposit statute, G.L. c. 186, s. 15B.

Defendant’s Common Law Harrassment, Defamation and Constitution-Based Counterclaims. The defendant has failed to establish that the plaintiff engaged in any acts of harassment directed against the defendant or made any defamatory statements about the defendant. The defendant has failed to establish that the plaintiff engaged in any tortious acts that could be considered a violation of the defendant’s rights secured under the U.S. constitution.

Defendant’s Discrimination Counterclaim. There is no evidence to support the defendant’s allegation that the plaintiff discriminated against him based upon race. Accordingly, judgment shall enter in favor of the plaintiff on the defendant’s G.L. c. 151B counterclaim.

 

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Defendant’s Retaliation Defense/Counterclaim. A tenant is entitled to a defense to possession under G.L. c. 239, s.2A and may recover damages under G.L. c. 186, s.18 if the landlord’s act of commencing a summary process action or serving the tenant with 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.

Under Section 2A (in all cases) and Section 18 (except in cases of non-payment of rent), the commencement of a summary process action against a tenant, or the sending of a notice to quit upon which the summary process action is based within six months after the tenant has engaged in such protected activity shall create a rebuttable presumption that the termination notice was served as an act of reprisal against the tenant for engaging in such protected activity. The burden then shifts to the landlord to rebut the presumption of retaliation by presenting clear and convincing evidence that such actions were not taken in reprisal for the tenant’s protected activities, that the landlord had sufficient independent justification for taking such action, and that the landlord would have taken such action in any event, even if the tenant had not taken the actions protected by the statute.[1]

The defendant is entitled to the statutory presumption of retaliation based upon the fact that the plaintiff terminated the defendant’s tenancy (by service of a notice to quit and commencement of this summary process action) within six months after the defendant contacted ISD, served his answer in the first summary process action (that included allegations relating to protected activity) and after the judge rendered her decision in the first summary process action. The plaintiff’s second notice to quit did not allege that the defendant had breached any tenancy-related obligation or that the plaintiff had a specific personal reason (such as a decision to sell the property or engage in a major rehabilitation of the unit) that would require that he recover possession. The plaintiff did not present evidence at trial sufficient to rebut the statutory presumption of retaliation.

 

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[1]”Clear and convincing” proof means evidence which “induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.” Callahan v. Westinghouse Broadcasting Co., Inc., 372 Mass. 582 (1977), quoting, Dacey v. Connecticut Bar Assoc., 170 Conn. 520, 537, n. 5 (1976); Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 871 (1975).

 

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Accordingly, the defendant has established his affirmative defense to possession pursuant to G.L. c. 239, s. 2A. Therefore, the defendant is entitled to retain possession of the premises.

Further, the defendant has established his counterclaim pursuant to G.L. c. 186, s. 18. The defendant did not present any evidence to establish the he suffered any actual or consequential damages. Accordingly, I shall award him statutory damages in the amount of $1,500.00 (one month’s 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:

1.Judgment enters for the defendant on the plaintiff’s claim for possession;

2.Judgment enters for the plaintiff on his claim for rent in the amount of $4,500.00.

3.Judgment enters for the defendant on his retaliation counterclaim with damages awarded in the amount of $1,500.00.

4.The judgments shall be setoff resulting in a net award of damages to the plaintiff in the amount of $3,000.00.

5.Judgment enters for the plaintiff on the defendant’s counterclaims for breach of implied warranty of habitability, discrimination, unfair trade practice, defamation, common law tort based upon constitution, security deposit violation and interference with quiet enjoyment.

SO ORDERED.

/s/ JEFFREY M. WINIK

FIRST JUSTICE

February 14, 2013

Docket No.:NO. 13H84SP005171

Parties:EDISON DOYLE, Plaintiff VS. SHARON RIDDICK, Defendant

Judge:/s/ JEFFREY M. WINIK

Date:December 10, 2013

BOSTON DIVISION

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT

 

This is a summary process action in which the plaintiff is seeking to recover possession of the premises based upon nonpayment of rent. The defendant filed a 68 page written answer that included affirmative defenses and counterclaims.[1]

Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds as follows:

The plaintiff, Edison Doyle, owns a three-family dwelling at 24 Barry Street, in the Dorchester section of Boston. He occupies the first floor apartment. At all times relevant to this action the plaintiff’s brother, Ismail Doyle, and his nephew have lived in the third floor apartment with the plaintiff’s permission. They do not pay rent. The plaintiff’s brother performs maintenance work at the property from time to time. Since February 2, 2013 the defendant, Sharon Riddick, has occupied a room in the third floor apartment as a tenant at will. She signed

 

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[1] Massachusetts Rules of Civil Procedure, Rule 8(a)(1), states that any pleading, including an answer and counterclaim “shall contain (1) a short and plain statement of the claim . . .” The defendant’s pleading does not comply with the provisions of this rule and includes many pages that contain rambling and irrelevant allegations. Nonetheless, I have parsed the defendant’s answer in an effort to identify defenses and counterclaims that arise from her tenancy. I then proceeded to address those defenses and claims based upon the credible evidence presented at trial.

As best I can discern, the defendant’s counterclaims include claims for breach of the implied warranty of habitability, interference with quiet enjoyment, violation of the security deposit statute (G.L. c. 186, § 15B), retaliation (G.1. c. 186, § 18), discrimination under state and federal statutes based upon national origin (claiming that the plaintiff discriminates against Americans) and sex, violation of the lodging house statute, unfair debt collection, unfair trade practices, racketeering and intentional infliction of emotional distress.

 

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a “Weekly Rental Agreement” dated January 31, 2013. The agreement provides that the weekly rent is $130.00 payable each Saturday. Paragraph 4 of the agreement further provides that “the first and last week’s rent is to be paid when the tenant signs this lease.” Finally, the agreement provides that “the tenant shall make a security deposit of $260.00 to landlord.” For a period of time after the defendant first occupied her room there were two other females living in the third floor apartment. At some point in time after the defendant moved into her room those female occupants vacated the premises.

On January 31, 2013 (the date on which the parties signed the rental agreement) the defendant gave the plaintiff a personal check in the amount of $260.00. The person who wrote the personal check (Basil Del Herbert) wrote in the memorandum line that the check was for the first week’s rent and security deposit; however the receipt that the plaintiff gave the tenant states that the payment was for rent. The written receipt is consistent with what was required to be paid at the inception of the tenancy in accordance with the provisions of in Paragraph 4 of the rental agreement. Accordingly, I find that the payment made by the defendant on January 31, 2013 constituted payment for the first and last month’s rent. I find that the defendant never paid the plaintiff any portion of the security deposit.

I find that the defendant failed to pay the plaintiff the weekly rent due on July 6, 2013 and she has been continuously in arrears in her rent since that date. Between July 8 and September 21, 2013 the defendant made sporadic and incomplete rent payments. The defendant has not made any rent payments since September 21, 2013. As of December 5, 2013 the defendant owes $1,890.00 in unpaid rent.

On October 24, 2013, the plaintiff had a constable serve the defendant with a legally sufficient fourteen day notice to quit for nonpayment of rent.

The defendant did not make any complaints to the plaintiff about conditions in the third floor apartment or common areas of the building until late October 2013. In late October 2013 the defendant called the City of Boston Inspectional Services Department (ISD) after she had been served with an notice to quit for nonpayment of rent.[2] I find that the defendant was in arrears in her rent (as of July 6, 2013) before the plaintiff either knew or should have known of any defective conditions in the defendant’s apartment. Accordingly, the defendant is not entitled

 

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[2] The plaintiff was served with two ISD violation notices on November 1, 2013. The ISD inspector re-inspected the premises on November 13, 2013 and determined that all of the conditions listed on the notices had been repaired.

 

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to an affirmative defense to possession and is not entitled to assert counterclaims arising from these purportedly defective conditions pursuant to G.L. c. 239, § 8A. The defendant’s breach of the implied warranty of habitability counterclaim, and those portions of the defendant’s counterclaims for interference with quiet enjoyment (G.L. c. 186, § 14) and unfair trade practice (G.L. c. 93A) that involve conditions-based claims shall be dismissed without prejudice.

With respect to the defendant’s affirmative defense to possession (G.L. c. 239, § 2A) counterclaim (G.L. c. 186, § 18) based upon claims of retaliation, there is no credible evidence that that plaintiff engaged in any acts of reprisal directed against the defendant because of her having engaged in one or more protected activities. Even if the defendant were entitled to the statutory presumption of retaliation pursuant to G.L. c. 239, § 2A, I find that the clear and convincing evidence presented at trial establishes that the sole reason the plaintiff terminated the defendant’s tenancy and commenced this eviction action was because the defendant had persistently failed to pay her weekly rent when due.[3] I find that the plaintiff would have taken this action even if the defendant had not complained to him or to ISD about any aspect of her tenancy. Accordingly, the defendant is not entitled to an affirmative defense to possession pursuant to G.L. c. 239, § 2A and has not established her claim for damages pursuant to G.L. c. 186, § 18.

I find that the defendant has failed to prove with credible evidence that the defendant entered her room without her permission, or that he placed “seed moss maggots” in her room, or that he conspired with other occupants to interfere with the defendant’s quiet use and enjoyment of the premises, or that he intentionally interfered with the provision of heat, or that he shut off the electricity in the common hallways for two days. Accordingly, the defendant has not established her claim for damages pursuant to G.L. c. 186, § 14.

I find that the plaintiff did not engage in any acts of discrimination directed against the defendant based upon her national origin (American) or based upon her sex. Accordingly, the defendant has not established an affirmative defense to possession or a claim for damages pursuant to G.L. c. 151B or the federal fair housing act.

Since the evidence does not support the defendant’s allegation that she gave the plaintiff a security deposit at the inception of her tenancy (I have found that the defendant gave the

 

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[3] A tenant is not entitled to a statutory presumption of retaliation on a claim pursuant to G.L. c. 186, § 18 where the summary process action is based upon nonpayment of rent.

 

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plaintiff only a $130.00 last month’s rent deposit), the defendant has not established a claim for damages pursuant to the security deposit provisions of G.L. c. 186, § 15B.

I find that the plaintiff did not engage in unfair debt practices or an unfair trade practices arising from the fact that he sent a number of nonpayment of rent notices to the defendant when she fell into arrears in her rent during the course of her tenancy. I further find that the content of those notices did not violate any law pertaining to debt collections.

I find that the plaintiff did not conspire with his brother on October 9 and 10, 2013 by paying a friend “bribe monies to impersonate a housing inspector in order to find violations as a means to illegally evict” the defendant. I credit the plaintiff’s testimony and find that on or about October 9 or 10, 2013, he had arranged to have an inspector from his insurance carrier inspect the property in order to comply with the underwriting provisions of his general liability insurance policy.

The defendant has failed as a matter of law to establish a claim for damages based upon her assertion that the plaintiff is operating an unlicensed lodging house at the property. The provisions of G.L. c 140, § 24 do not provide the defendant with a private cause of action. It is the City of Boston that has the authority and responsibility to enforce the lodging house provisions of the statute. There is no evidence that the City of Boston has notified or taken any action against the plaintiff based upon any purported violation of the lodging house statute.

The defendant has failed to prove with any credible evidence that with respect to the defendant’s tenancy the plaintiff engaged in any pattern of racketeering activity that violated the federal Racketeer Influenced and Corrupt Organizations statute (“RICO”), 18 U.S.C. § 1961, et

seq.[4]

The defendant has failed to prove that the plaintiff engaged in any conduct that constituted intentional infliction of emotional distress. There is no credible evidence that the

 

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[4] To support a claim under RICO the defendant must prove by a fair preponderance of the evidence 1) the existence of a RICO enterprise which affects interstate or foreign commerce, 2) that the plaintiff was “employed by” or “associated with” the enterprise; 3) that the plaintiff participated in the conduct of the enterprise’s affairs, 4) that the participation was through a pattern of racketeering activity, and 5) that the defendant suffered an injury to her business or property proximately caused by reason of the substantive violation of the RICO statute. The defendant must prove that the plaintiff committed at least two predicate acts of “racketeering activity” which can be part of a single scheme, that are related and that amount to, or threaten the likelihood of, continued criminal activity. See, McEvoy Travel Bureau, Inc. v. Heritage Travel, Inc., 904 F. 2d 786 (1st Cir. 1990). The proof of two predicate acts alone is insufficient to establish a RICO pattern. Continuity plus relationship combines to produce a “pattern” of racketeering activity. See, U.S. v. Boylan, 898 F. 2d 230 (1st Cir. 1990).

 

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plaintiff engaged in acts directed against the defendant that were extreme, outrageous, beyond all bounds of human decency and utterly intolerable in a civilized community. Agis v. Howard Johnson, 371 Mass. 140, 144-145 (1976). Accordingly, the defendant has not established a claim for damages based upon infliction of emotional distress.

The plaintiff has established his case to recover possession and damages in the amount of $1,890.00.

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that:

 

1. Judgment enters for the plaintiffs for possession and damages in the amount of $1,890.00.

 

2. Execution shall issue ten (10) days from the date that judgment enters.

 

3. The defendant’s conditions-based counterclaims for breach of the implied warranty of habitability, interference with quiet enjoyment (G.L. c. 186, § 14) and unfair trade practice (G.L. c. 93A) shall be dismissed without prejudice are dismissed without prejudice.

 

4. Judgment enters for the plaintiff on the defendant’s conduct-based counterclaims for violation of G.L. c. 186, §§§ 14, 15B and 19, violation of federal and state discrimination statutes, violation of the lodging house statute, racketeering and infliction of emotional distress.

 

SO ORDERED.
/s/ JEFFREY M. WINIK

FIRST JUSTICE

December 10, 2013

 
Docket No.:NO. 12H84SP001243

Parties:ANTHONY SACCO, Plaintiff VS. AYAD DRIOUICHE, Defendant

Judge:/s/ JEFFREY M. WINIK

Date:June 17, 2013

BOSTON DIVISION

ORDER AWARDING STATUTORY ATTORNEYS FEES AND ORDER OF JUDGMENT

 

Attorney Fees. This matter is before the Court on the defendant’s post-trial Motion for Attorney’s Fees and Costs. The plaintiff (the administrator of the landlord’s estate) filed an opposition to the motion.

This summary process case involved the plaintiff’s claim for possession based upon nonpayment of rent. The defendant filed an answer that included counterclaims. The court ruled in favor of the defendant on his motion for partial summary judgment with respect to his security deposit and last month rent deposit counterclaims (G.L. c. 186, º 15B) and his derivative consumer protection act counterclaim (G.L. c. 93A).[1] These statutes provide for an award of reasonable attorney’s fees to the prevailing party. I ruled that the plaintiff’s nonpayment of rent claim and the defendant’s other counterclaims (retaliation, breach of implied warranty of habitability, interference with quiet enjoyment and discrimination) would proceed to trial.

Prior to trial the parties entered into an agreement for judgment. Under the terms of the agreement, judgment for possession entered for the plaintiff. In consideration of the defendant’s agreement to voluntarily vacate the premises and waive his counterclaims the plaintiff waived his claim for unpaid rent totaling $11,900.00. However, the agreement provided that the defendant retained the right to recover an award of

 

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[1]I ruled that the plaintiff is liable to to the defendant for damages of $2,550.00 on his security deposit counterclaim, three times the accrued unpaid interest on his last month rent deposit counterclaim and nominal damages of $25.00 on his consumer protection act counterclaim.

 

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reasonable attorney’s fees as the prevailing party upon summary judgment on his G.L. c. 186, º15B and G.L. c. 93A counterclaims. The amount of the attorney’s fee award was to be decided by the Court.

The court should normally use the “lodestar” method to calculate the amount of a statutory award of attorney’s fees. Under the “lodestar” method, “[a] fair market rate for time reasonably spent in litigating a case is the basic measure of a reasonable attorney’s fee under State law as well as Federal law.” Fontaine v. Ebtec Corp., 415 Mass. 309, 325-26 (1993). However, the actual amount of the attorney’s fee is largely discretionary with the trial court judge. Linthicum v. Archambault, 379 Mass. at 388. An evidentiary hearing is not required. Heller v. Silverbranch Const Corp., 376 Mass. 621, 630-631 (1978). In determining an award of attorney’s fees, the Court must consider “the nature of the case and the issues presented, the time and labor required, the amount of the damages involved, the result obtained, the experience, reputation and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases. Linthicum v. Archambault, supra. at 381. 388-9. See Heller v. Silverbranch Const Corp., supra. at 629 (“the standard of reasonableness depends not on what the attorney usually charges but, rather, on what his services were objectively worth . . . Absent specific direction from the Legislature, the crucial factors in making such a determination are: (1) how long the trial lasted, (2) the difficulty of the legal and factual issues involved, and (3) the degree of competence demonstrated by the attorney”). The prevailing party is entitled to recover fees and costs for the statutory claims on which she was successful. “As a rule, where a single chain of events gives rise to both a common law and a [statutory] claim, apportionment of legal effort between the two claims is not necessary . . .” Hanover Insurance Company v. Sutton, 46 Mass. App. Ct. 153, 176-77 (1999), quoting from Industrial Gen. Corp. v. Sequsia Pac. Sys. Corp., 849 F. supp. 820, 826 (D. Mass. 1994).

I have reviewed the affidavit and time records submitted by the defendant’s attorney, Christopher Saccardi. Attorney Saccardi represented his client with competence and professionalism. Attorney Saccardi has been a member of the bar since 2008 and has had significant experience representing litigants in housing law matters. I find that Attorney Saccardi is entitled to compensation at a reasonable hourly rate of $200.00.

After reviewing Attorney Saccardi’s affidavit, I find that he is entitled to compensation for 30 hours reasonably spent on the statutory counterclaims decided upon

 

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summary judgment.[2] He is entitled to an additional 2 hours reasonably spent on the preparation and presentation of the motion for attorney’s fees. Accordingly, I find that Attorney Saccardi is entitled to compensation for 32 hours in total.

After considering all of the factors set forth above, I award the defendant reasonable attorneys’ fees in the amount of $6,400.00.[3] I shall further award the defendant $55.00 for documented costs.

The award of attorney’s fees is without interest. See, Patry v. Liberty Mobilehome Sales, Inc., 394 Mass. 270, 272 (1985).

 

ORDER FOR JUDGMENT

 

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that:

 

1. Judgment enters for the plaintiff for possession pursuant to the Agreement for Judgment dated March 4, 2013;

 

2. In accordance with the Agreement for Judgment dated March 4, 2013, judgment enters for the defendant on his G.L. c 186, º 15B and G.L. c. 93A counterclaims with an award of reasonable attorney’s fee of $6,400.00 and $55.00 in costs.

 

3. All other claims and counterclaims are dismissed with prejudice. SO ORDERED.

 

/s/ JEFFREY M. WINIK

FIRST JUSTICE

June 17, 2013

 

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[2]Attorney Saccardi states in his affidavit that he spent 50.9 hours on matters pertaining to the defense of the eviction claim and prosecution of his client’s counterclaims. I credit his representations. However, I conclude that 20.9 hours involved work on aspects of this litigation that did not involve the G.L. c. 186, º 15B or G.L. c. 93A counterclaims.

 

[3]32 hrs x $200.00 = $6,400.00.

 

 

 

Docket No.:CIVIL ACTION NO. 10H84CV000648

Parties:JASMINE STROTHER, Plaintiff VS. LONG BAY MANAGEMENT CO., INC. and
BLUE MOUNTAIN ASSOCIATES LIMITED PARTNERSHIP, Defendants

Judge:/s/ JEFFREY M. WINIK

Date:January 30, 2013

BOSTON DIVISION

ORDER

This matter is before the Court on the plaintiffs Motion to Amend Complaint. The proposed amendment seeks to add two counts alleging violations of G.L. c. 93A. The defendants filed an opposition to the motion.

The claims at issue in this action date back to events that occurred more than twenty years ago. The plaintiff, Jasmine Strother (“Strother”), was born in August 1989. From August 1989 to April 1990 Strother lived with her mother, Cynthia Taylor, at 40 Cheney Street, in the Dorchester section of Boston (the “premises”). Defendant Blue Mountain Associates Limited Partnership (“Blue Mountain”) owned the premises during that period. Defendant Long Bay Management Co., Inc. (‘Long Bay”), managed the premises during that period. Strother alleges that she was exposed to lead while she lived at the premises and suffered lead poisoning injuries as a result of that exposure.

In September 1998 (eight years after the alleged lead exposure) the Strother’s mother, acting as Strother’s next friend (then 9 years old), filed a lawsuit against Blue Mountain. Strother was represented by attorney Martin Kantrovitz. The complaint included claims for strict liability (G.L. c. 111, s. 199), interference with quiet enjoyment (G.L. c. 186, s. 14), and breach of the implied warranty of habitability. On July 16, 2004,

 

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the court entered an order of involuntary dismissal of the Strother’s complaint without prejudice pursuant to M.R.Civ.P. 41 (b) (1). The dismissal was based upon a lack of activity on the docket for the three years preceding the notice.

When the first complaint was dismissed in 2004 Strother was almost 15 years old. Because Strother was a minor, in accordance with G.L. c. 260, s. 7, the statute of limitations applicable to her tort-based strict liability, quiet enjoyment and warranty claims were tolled until she reached her 18th birthday. Measured from August 25, 2007 (the date on which she reached her 18th birthday) Strother had three years in which to commence a new action based upon claims for tort-based strict liability and breach of warranty (G.L. c. 260, s. 2A) and four years in which to commence a new action based upon claims for tort-based interference with quiet enjoyment and violation of G.L. c. 93A (G.L. c. 260, s. 5). Therefore, the limitations period for filing a strict liability and breach of warranty claim expired on August 24, 2010 and the limitations period for filing a quiet enjoyment and Chapter 93A claim expired on August 24, 2011.

On August 13 2010 Strother filed a new lawsuit (in her own name) against Blue Mountain and Long Bay. Strother was again represented by Attorney Martin Kantrovitz. Other than adding Long Bay as a new defendant Strother’s second complaint is substantially identical to the 1998 complaint. It included claims for strict liability (G.L. c. 111, s. 199), interference with quiet enjoyment (G.L. c. 186, s. 14), and breach of the implied warranty of habitability. These three claims were filed within the statutory limitations period. On December 14, 2010 the defendants filed a written answer to Strother’s second complaint. Under the terms of the original tracking order all discovery was to be completed by November 2011; Rule 56 motions were to be disposed of by November 2012; and the trial was to commence in April 2013.

Other than matters pertaining to discovery the docket does not reflect any other activity between January 2010 and July 2012.

Strother retained new counsel who entered an appearance on July 30, 2012. On August 6, 2012 the parties filed an assented to modified tracking order by which all non-expert discovery would be completed by October 31, 2012, all experts would be disclosed

 

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by November 15, 2012, all expert depositions would be completed by January 31, 2012 and the case would be assigned for jury trial in April 2013 (as originally scheduled).

On November 19, 2012, Strother (through her attorney) sent the defendants what is identified as a Chapter 93A demand letter. The letter alleges for the first time that the defendants engaged in unfair or deceptive trade practices with respect to the rental and

maintenance of the premises (specifically with reference to presence of lead) from August 1989 to April 1990. The Chapter 93A demand letter was prepared and sent more than one year after the statute of limitations period had run on Strother’s Chapter 93A claim arising from the alleged lead poisoning injury. The defendants delivered a written response to Strother’s demand letter within thirty days of receipt.

On December 26, 2012, Strother filed her Motion to Amend Complaint together with the proposed amendment. The proposed amendment adds two new claims. First, Strother alleges that the defendants’ conduct between August 1989 and April 1990 constituted a knowing and willful violation of Chapter 93A (proposed sixth claim). Second, Strother alleges that the defendants failed to make a reasonable offer of settlement in response to the plaintiff’s November 19, 2012 Chapter 93A demand letter (proposed seventh claim).

M.R.Civ.P. Rule 15A provides that once a responsive pleading is filed, “a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” M.R.Civ.P 15(c) states that

“[w]henever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment (including an amendment changing a party) relates back to the original pleading.” This rule is intended to address the situation where a claim presented in the original complaint would otherwise be lost because of an applicable statute of limitations. See, Bengar v. Clark Equipment Co., 401 Mass. 554, 556 (1988). “The decision whether to grant a motion to amend is within the discretion of the judge, but leave should be granted unless there are good reasons for denying the motion [citations omitted]. Such reasons include `undue delay, bad faith or dilatory motive on the part the movant, repeated failure to cure deficiencies by amendments previously allowed, undue

 

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prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.’ Catellucci, supra. at 290 [372 Mass. 288, 290], quoting Foman v. Davis, 371 U.S. 178, 182 (1962).” Mathis v. Massachusetts Electric Co., 409 Mass. 256, 264 (1991). See also United States Leasing Corp. v. Chicopee, 402 Mass. 228, 233 (1988) (“plaintiffs undue delay in pressing these claims justifies the judge’s refusal to allow the amendment”). “While `undue delay’ may justify a denial [of a motion to amend], [we] usually require [] some factor other than delay, such as the imminence of trial or the plaintiffs attempting to introduce a totally new theory of liability.” Walsh v. Chestnut Hill Bank & Trust Co., 414 Mass. 283, 286-287 (1993), citing and paraphrasing Goulet v. Whitin Machine Works, Inc., 399 Mass. 547, 552 (1987).

Strother’s motion papers do not provide any explanation for the substantial delay (measured either from the date on which Strother filed her first complaint or her second complaint) in serving the Chapter 93A demand letter and then seeking to amend her second complaint.[1] See, Genesco, Inc. v. Koufinan, 11 Mass. App. Ct. 986, 990 (1981) (court denies motion to amend where there is an eight year delay between filing suit and attempting to add a substantially different claim). At the motion hearing, Strother’s new counsel stated that his firm had only recently entered an appearance as co-counsel with Strother’s original attorney. This was the only reason he gave to justify the request to amend the complaint. This reason does not explain why Strother waited until many years after she first filed a lawsuit, until after the discovery period had closed, until the trial was set to be scheduled, and until after the claim was otherwise barred by the statute of limitations to seek to amend the complaint to add claims based upon a substantially different theory of liability. For example, Strother’s counsel does not suggest that Strother recently uncovered evidence pertaining to the proposed new claims (that was unavailable or undiscoverable during the many years that have passed since the first complaint was filed or even since the second complaint was filed) or that the defendants hindered past efforts to secure such evidence.

 

 

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[1]The plaintiff did not submit an affidavit (from either Strother or her first counsel) to explain the delay. The court will not speculate as to what practical or strategic decisions Strother’s original attorney may have made regarding the claims he chose to assert in the original complaint.

 

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Since 1998, when the first complaint was filed, the defendants had actual knowledge that the claims against them were based upon tort-based theories of strict liability (G.L. c. 111, s. 199), quiet enjoyment (G.L. c. 186, s. 14) and breach of implied warranty of habitability. They engaged in discovery and developed their defenses based upon that assumption. The proposed Chapter 93A claims would inject new and distinct consumer protection-based legal theories into the case. It would be manifestly unfair, and potentially prejudicial, to require the defendants – twenty-two years after Strother last occupied the premises, fourteen years after the first complaint was filed on her behalf and more than two years after she filed the second complaint- to defend against claims that for the first time allege that the defendants engaged in intentional, misleading or deceptive misconduct in the distant past.[2] If Strother were permitted to assert the new Chapter 93A claims, the defendants and plaintiff would have the right to engage in a new round of discovery to deal with these new intentional tort claims. They would also have the right to file dispositive motions with respect to these new claims. This would result in a further delay in bringing this case to trial. This court is unwilling to countenance any further delay.

As an alternative and independent reason for denying leave to file the amended complaint, I conclude that allowing the proposed amendments would be futile. The service of a Chapter 93A demand letter “is not merely a procedural nicety, but, rather, `a prerequisite to suit” under Chapter 93A, s. 9. Entrailgo v Twin City Dodge, Inc. 368 Mass. 812, 813 (1975); York v. Sullivan, 369 Mass. 157, 163 (1975). The requirement that a written demand be made at least thirty days prior to filing a Chapter 93A claim cannot be waived. Lord v. Commercial Union Ins. Co., 60 Mass. App. Ct. 309, 317 (2004). A Chapter 93A claim must be commenced within the applicable four-year statute of limitations. See, G.L. c. 260, s. 5A. It follows, a fortiori, that the written demand, which is a prerequisite to filing a Chapter 93A claim, must be served within the requisite four year limitations time period. While M.R.Civ.P. Rule 15 provides that an amended

 

 

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[2]As to the plaintiff’s proposed Chapter 93A claim pertaining to bad faith refusal to make a reasonable settlement offer (proposed seventh claim), it seems implausible that a response to a settlement demand (even a response that refuses to make a settlement offer) made for the first time almost twenty-two years after the alleged lead poisoning injury occurred would be deemed unfair or deceptive.

 

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complaint relates back to the date of the original complaint, the rule does not explicitly or implicitly extend the same relation-back provision to prerequisites or requirements mandated by statute that must be met as precondition to bringing suit in the first instance. Therefore, even if the motion to amend were allowed, it would not survive a motion to dismiss. This is so because even though Strother’s Chapter 93A claims set forth in the amended complaint would relate back to the date on which the second complaint was filed (August 13, 2010), she nonetheless would be unable to prove an essential element of her Chapter 93A claims. She would be unable to prove that she served a legally sufficient Chapter 93A demand upon the defendants by July 25, 2011 (being thirty days prior to the last date on which she could have filed a Chapter 93A claim but for the relation back provisions of Rule 15). It is undisputed that the written demand relied upon by Strother was not served on the defendants until more than one year after the statute of limitations applicable to Chapter 93A had run.

For these reasons, Strother’s Motion to Amend Complaint is DENIED.

SO ORDERED.

/s/ JEFFREY M. WINIK

ASSOCIATE JUSTICE

January 30, 2013

 

 

 

Docket No.:NO. 12H84SP004581

Parties:BANK OF AMERICA, N.A., Plaintiff VS. JOAN L. YARDE and GRANVILLE YARDE, Defendants

Judge:/s/ JEFFREY M. WINIK

Date:March 19, 2013

BOSTON DIVISION

ORDER

 

This matter came before the court on the plaintiff’s Motion to Strike and to Dismiss Defendants’ Affirmative Defenses and Counterclaims. For the reasons set forth herein, the plaintiffs motion is ALLOWED in part.

The facts necessary to resolve this motion are not in dispute. The defendants are the former owners of a residential property at 29 Oakley Street, in the Dorchester section of Boston. They defaulted on their mortgage payment obligations. The Plaintiff, Bank of America, N.A., acquired title to the property after a foreclosure sale conducted on May 25, 2012.

At the time of the foreclosure the defendants and their adult son occupied the property as their residence. The defendants never rented or leased the property and never occupied the property as tenants prior to the foreclosure sale. The defendants have continued to occupy the premises after the foreclosure. The defendants have never entered into a tenancy with the plaintiff. The defendants allege in their complaint that defendant Joan Yarde is 68 years old and is disabled. They further allege that they have made a request to the plaintiff for a reasonable accommodation based upon Ms. Yarde’s disability. The accommodation they have requested is that the plaintiff agrees to enter into a tenancy with the defendants and allow them to remain in possession of the premises.

 

 

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In November 2012, the plaintiff commenced this summary process action. The defendants filed a written answer that included a defense based upon superior right to possession, a conditions-based affirmative defense under G.L. c 239, s. 8A. The defendants asserted counterclaims for breach of implied warranty, interference with quiet enjoyment, and consumer protection act violations. The defendants also asserted an affirmative defense and counterclaim based upon discrimination (failure to afford a reasonable accommodation based upon Ms. Yarde’s disability).

The defendants have stipulated to the dismissal of their G.L. c. 239, s. 8A defense, and their conditions-based, quiet enjoyment and Chapter 93A counterclaims.

Pursuant G.L. c. 239, s. 8A, a defendant in a summary process action may assert defenses to possession and counterclaims “related to or arising out of such property, rental, tenancy, or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law” only where the premises at issue had been “rented or leased for dwelling purposes.” Here, the defendants never rented or leased the premises as residential occupants prior to or after the plaintiff acquired title to the property upon foreclosure. The defendant did not terminate the defendants’ “tenancy” for the simple reason that no tenancy ever existed.

Former owners are obligated to surrender possession of the premises upon demand to the new owner. G.L. c. 239, s. 1. The former owners are obligated to pay the new owner for their continued use and occupation of the premises if they remain in possession of the premises after foreclosure. See, G.L. c. 186, s. 3. While evidence regarding the condition of the premises may have some bearing on the fair value of the premises for use and occupation if damages are sought, the mere fact that the new owner

is seeking use damages does not transform the former owner’s occupancy into a tenancy and does not mean that the premises have been “rented or leased for dwelling purposes” within the meaning of G.L. c. 239, s. 8A.[1]

I rule as a matter of law that because the defendants are not “tenant[s] or occupant[s]” within the meaning of G.L. c. 239, s. 8A. Because the defendants were never tenants, I rule as a matter of law that they cannot assert counterclaims for breach of warranty, negligent repair or for violation of G.L. c. 186, s.s. 14, 18, G.L. c. 93A or

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[1]The defendants retain the right to present evidence pertaining to the condition of the premises to the extent it is relevant to determine fair value of use and occupancy.

 

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discrimination. Deutsche Bank National Trust Company v. Gabriel, 81 Mass. App. Ct. 564 (2012).[2]

However, the reasonable accommodation affirmative defense (based upon an allegation that the plaintiff failed to offer them a post-foreclosure tenancy as a reasonable accommodation based upon Ms. Yarde’s disability) is not based upon a right that would only exist if the defendants’ had been tenants. Instead, the defense relates to the allegation that the plaintiff has a policy or an existing rental program whereby the plaintiff will enter into tenancies with former owners who lost the property upon foreclosure. I cannot tell from the pleadings whether the plaintiff has such a policy or program, and if such a policy exists what criteria the plaintiff uses to determine whether a former owner would qualify for such tenancy. Finally, I cannot tell from the pleadings whether the plaintiff has treated the defendants differently from other foreclosed owners with respect to the rental of the foreclosed property based upon Ms. Yarde’s disability. The defendants are entitled to engage in discovery on this discrimination affirmative defense.

Accordingly, it is ORDERED that the defendants’ conditions-based affirmative defense and all counterclaims shall be stricken from their answer. The defendants’ reasonable accommodation affirmative defense shall not be stricken from their answer.[3]

 

SO ORDERED.
/s/ JEFFREY M. WINIK

FIRST JUSTICE

March 19, 2013

 

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[2]have considered the thoughtful analysis set forth in the August 31, 2012 order the case of Wells Fargo Bank v. Amero, Kerman, J., Northeast Housing Court, No. 12H84SP000870. I believe the law pertaining to the right of a former owner to bring counterclaims in a summary process case is that set forth in Gabriel, supra.

 

[3]The defendants may proceed with their defense that the plaintiffs title is defective and/or that it does not have a superior right to possession as against the defendant. See, Bank of New York, trustee v. KC Bailey, 460 Mass. 322 (2011).

 

 

Docket No.:NO. 13H84CV000738

Parties:ANGEL MCLEAN, Plaintiff VS. BOSTON HOUSING AUTHORITY, Defendant

Judge:/s/ JEFFREY M. WINIK

Date:January 31, 2014

BOSTON DIVISION

MEMORANDUM OF DECISION AND ORDER FOR JUDGMENT

 

Introduction

 

Plaintiff Angel McLean (“McLean”) filed a complaint seeking relief in the nature of certiorari pursuant to G.L. c. 249, § 4 challenging defendant Boston Housing Authority’s (“BHA”) decision to terminate McLean’s participation in the federal Section 8 Housing Choice Voucher Program.[1] The hearing officer who heard McLean’s informal administrative appeal upheld the BHA’s decision to terminate based upon the BHA’s determination that McLean’s son (who was not a member of her Section 8 family household at the time of the incident) used her apartment to engage in drug-related criminal activity and keep an illegal firearm that constituted a serious or repeated violation of her lease. In response to McLean’s certiorari petition the BHA filed the informal hearing record together with a Motion for Judgment on the Pleadings. This matter is before the court on the merits of that motion and McLean’s complaint.

 

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[1] McLean commenced this action by filing an application for a temporary restraining order seeking to order the BHA to reinstate her Section 8 voucher. I will treat her request as one seeking relief in the nature of certiorari under G.L. c. 249, § 4.

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Discussion

 

The federal Section 8 Housing Choice Voucher Program (“Section 8 HCVP program”) is succinctly described in Wojcik v. Lynn Housing Authority, 66 Mass. App. Ct. 103, n. 2 (2006):

 

“The Housing Choice Voucher Program, commonly referred to as `section 8,’ was established by Congress pursuant to § 201(a) of the Housing and Community Development Act of 1974, amending § 8 of the United States Housing Act of 1937. See 42 U.S.C. § 1437f(o) (2003); 24 C.F.R. § 982.1 et seq. (2005). It allows low-income families seeking assistance to apply to a local housing authority . . . . See 24 C.F.R. § 982.1. If approved, the local housing authority will issue a section 8 voucher to the family. See 24 C.F.R. § 982.302. With this voucher, the family may then locate a suitable apartment in the private market and enter into a lease that is in accordance with the applicable housing authority guidelines. Ibid. Once the housing authority has approved the lease, the family may then pay thirty percent of its adjusted monthly income to the owner of the unit in satisfaction of its rent obligation. 42 U.S.C. § 1437f(o)(2)(A). Under its own agreement with the owner, the housing authority then pays the owner the difference between what the tenant has paid and the monthly rent charged. 42 U.S.C. § 1437f(c)(3).”

 

The United States Department of Housing and Urban Development (“HUD”) administers the Section 8 HCVP program on the national level and has promulgated regulations to implement the program. See 24 C.F.R. § 982 et seq. On the local level, Defendant Boston Housing Authority (“BHA”) is authorized to administer the Section 8 HCVP program for HUD. See, 42 U.S.C. § 1237a(b)(6); 24 C.F.R. § 982.4.

The BHA is a public body corporate and politic, established pursuant to G.L. c. 121B, §§ 3 and 5. The BHA administers the federal Section 8 Housing Choice Voucher Program (Section 8 program). 42 U.S.C. § 1437, et seq. The Department of Housing and Urban Development (“HUD”) has promulgated regulations to implement the Section 8 program. See, 24 CFR § 982.551 (a) to (n). Section 982.551 (e) provides that “Nile family may not commit any serious or repeated violation of the lease.” Section 24 CFR 982.552 (c) (1) (i) provides that the BHA may terminate participation in the Section 8 program if a family member “violates any family obligations under the program.” Family Obligation #4 provides that “Mlle family may not commit any serious or repeated violation of the lease.”

 

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A Section 8 participant has the right to an informal hearing to appeal the BHA’s decision to terminate Section 8 assistance.[2]

The BHA is not a state agency subject to the administrative appeal provisions of G.L. c. 30A. Therefore, McLean has sought relief by bringing an action in the nature of certiorari pursuant to G.L. c. 249, § 4.[3] Section 4 states in relevant part, “a civil action in the nature of certiorari to correct errors in proceedings . . . which proceedings are not otherwise reviewable by motion or by appeal, may be brought [in a court of competent jurisdiction].” The housing court department has jurisdiction concurrent with the superior court department with respect to housing matters. See, G.L. c. 185C, § 3. In considering a certiorari petition the court must determine whether the administrative decision was based upon legal error that adversely affected material rights of the plaintiff. Legal error includes terminating a tenant’s Section 8 subsidy based upon findings of fact that are not supported by a preponderance of the evidence presented at the informal hearing. See, Board of Ret. v. Woodward, 446 Mass. 698, 703 (2006); Emerson College

v. Boston, 391 Mass. 415, 422 n. 14 (1984); School Comm. Of Hatfield v. Board of Education, 372 Mass. 513, 517 (1977); First Church of Christ Scientist v. Alcoholic Beverages Control Commission, 349 Mass. 273, 275 (1965); Police Comm’r of Boston v. Robinson, 47 Mass. App. Ct. 767, 770 (1999).[4]

Since I cannot substitute my judgment for that rendered by the BHA and the hearing officer, my consideration of McLean’s certiorari petition must be based solely upon the evidence presented at the informal hearing. Therefore, my review of the hearing officer’s decision will be limited to a consideration of whether the hearing officer’s

 

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[2] The hearing officer must make a factual determination relating to the individual circumstances of the participant based on a preponderance of the evidence presented at the hearing. See, Carter v. Lynn Housing Authority, 450 Mass. 626 (2008). The hearing officer may consider any mitigating circumstances and other relevant circumstances presented by the participant. These mitigating circumstances may include the seriousness of the violation, the extent of participation or culpability of individual family members, facts related to the disability of a family member, and the effects of the termination of assistance on other family members who were not involved in the conduct that constituted a lease violation.

 

[3] McLean commenced this action within the sixty-day limitation period set forth in G.L. c. 249, § 4.

 

[4] In Woodward, supra. at 703, the court states that “[t]he requisite elements for availability of certiorari are (1) a judicial or quasi judicial proceeding, (2) from which there is no other reasonably adequate remedy (3) to correct substantial error of law apparent in the record (4) that has resulted in manifest injustice to the plaintiff . . .”

 

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factual findings and legal conclusions were based upon legal error that adversely affected the plaintiff’s material rights (whether the hearing officer applied the correct legal principles and whether her findings and conclusions were supported by the evidence).

McLean has resided as a tenant at 67 Centre Street, Apartment #1, in the Dorchester section of Boston, continuously since December 1994. From the inception of her tenancy McClean’s rent has been subsidized under the provisions of the Section 8 Housing Choice Voucher Program. The BHA has administered McLean’s Section 8 voucher. McLean currently lives with two of her four children — daughters who are 14 and 18 years old. At the inception of her Section 8 tenancy in 1994 McLean lived with her two older children — a daughter (now 30 years old) and Hubman Hunter (now 20 years old). The oldest daughter moved from the family apartment and is not a member of McLean’s Section 8 household. Sometime in April 2011 McLean’s son, Hubman Hunter (“Hunter”), moved out of McLean’s home and was taken off her lease.

Section 10 (a) of McLean’s Section 8 lease provides that McLean must “not engage in or allow family members or guests to engage in any criminal activity in the rented premises . . .”

On July 19, 2012, the BHA gave McLean a written notice entitled “Proposed Termination of Section 8 Rental Assistance” (Record, Exhibit D). The reason the BHA gave for terminating McLean’s Section 8 rental assistance was that McLean committed serious and repeated violations of her lease. The BHA alleged that on October 18, 2012, McLean allowed Hunter to use her apartment to engage in criminal and drug-related criminal activity. Specifically, the BHA alleged that the police seized from McLean’s apartment a loaded firearm, ammunition and plastic bags containing crack cocaine. McLean appealed that decision and requested that the BHA hold an informal hearing. The informal hearing was held before a BHA hearing officer on May 6, 2013. The evidence presented at the hearing included a written police report dated October 18, 2012 (Record, Exhibit F), BHA program Section 8 documents, termination and hearing notices (Record, Exhibits A — D, G), 1994 Section 8 lease (Record, Exhibit E), 209A abuse prevention order dated April 11, 2011 and Section 8 hearing transcript. In a written decision issued on July 25, 2013, the hearing officer upheld the BHA’s decision to terminate McLean’s Section 8 rental assistance (Record, Exhibit I).

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The following facts can be distilled from the testimony and evidence in the record: On October 18, 2012, Boston police officers obtained a search warrant to search McLean’s apartment for evidence that Hunter was engaged in illegal drug related activity. The police officers observed Hunter in a motor vehicle operated by McLean. The police followed the car to various locations in Boston. The police stopped the car and informed Hunter that he was not under arrest, but that he would be transported back to 67 Centre Street for the purpose of executing the search warrant. McLean, who was the driver when the car was stopped, told the police that she had keys to her apartment and would allow the police officers to enter and search her apartment. The police officers entered McLean’s apartment and with Hunter’s assistance recovered 1) a loaded .38 caliber revolver secreted under a mattress in one of children’s bedrooms, 2) 24 rounds of ammunition under the same mattress, and 3) 25 bags of crack cocaine found in a dresser located in that bedroom. The police arrested Hunter and charged him with illegal possession with intent to sell a Class B narcotic and unlawful possession of a firearm and ammunition. He admitted that the revolver, ammunition and drugs belonged to him. Hunter pleaded guilty to the charges and is currently serving his sentence in a Massachusetts correctional facility.

McClean testified that Hunter has had a long history of mental health problems. During his adolescence Hunter had been in repeated trouble with school authorities and had frequent encounters with law enforcement and the criminal justice system. Hunter has not been a member of McLean’s Section 8 household since 2011. He was not a member of her Section 8 household on October 18, 2012.

McLean testified that at the time of the October 18, 2012 incident Hunter was not living with her. She said that at times he was living with his father and at other times he was homeless. In April 2011 McLean obtained a 209A abuse prevention order against Hunter. In her affidavit she stated that she was scared of her son, fearful for her safety and the safety of her daughters, and was scared of losing her housing because of her son’s actions. The judge ordered Hunter to stay away from McLean’s apartment. McLean testified that she had been attempting to obtain Social Security/SSI disability benefits for Hunter and that she intended to act as his representative payee. McLean testified that she had the court vacate the 209A order because she was told by a Social Security

 

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Administration representative that she could not act as Hunter’s representative payee so long as the restraining order remained in effect. McLean testified that since April 2011 she had never allowed Hunter to live in or enter her apartment. She testified that she was unaware that Hunter had ever entered her apartment or that he had left illegal drugs, an illegal firearm or ammunition in her apartment at any time after April 2011. She stated that she did not know how Hunter got into her apartment after April 2011. She stated it was possible that Hunter entered her apartment without her knowledge by climbing through a window or that her 14 year old daughter may have allowed Hunter to enter her apartment on occasion without telling McClean. It appears that the hearing officer believed McClean when she testified that she was unaware that Hunter had left the drugs, firearm and ammunition in her apartment.

McLean testified that for 14 years she has been treated by medical professionals for severe depression and anxiety. She was prescribed the drug Prozac in sixty milligram doses. She said the drug diminished her ability to comprehend things going on around her. She tried to explain what she meant by stating that because of the Prozac she was taking, “I was not there.” A fair reading of the record suggests that McLean meant to use the phrase “I was not there” to express her belief that because of the effect that her anti-depression medication had on her mental alertness or acuity, she suffered from a significantly diminished ability to comprehend or process what may have occurred in her apartment — including the fact that Hunter had hidden drugs, a weapon and ammunition in her apartment without her knowledge or consent. In other words, she was trying to tell the hearing officer that there was a causal link (a nexus) between her mental health disability and the conduct (a lease violation) that resulted in the BHA’s decision to terminate her participation in the Section 8 program.

The hearing officer found the factual statements set forth in the police report reliable because those facts were based upon their direct observations. The hearing officer found that on October 18, 2012, the police found illegal drugs, an illegal firearm and ammunition hidden in a bedroom in McLean’s apartment. The hearing officer found that it was Hunter, and not McLean, who had brought the items into McLean’s apartment and engaged in the illegal activity. Nonetheless she found that McLean committed a serious violation of her lease because McLean was responsible for Hunter’s actions even

 

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though she did not have actual knowledge that Hunter had placed the drugs, firearm and ammunition in her apartment. She reached this conclusion by ruling that because McLean was the head of her household ” . . . she is responsible for the actions of family members and guests which occur in her unit.”

The hearing officer did not credit McLean’s testimony with respect to how Hunter was able to enter McLean’s apartment. Although the hearing officer did not make any specific findings regarding the manner in which Hunter gained access to the apartment it appears that she inferred that his entry was permissive making McLean responsible for his actions.

With respect to mitigation, the hearing officer ruled that the mitigating circumstances presented by McLean (that she had been a Section 8 tenant for approximately 25 years without incident, that her two school-age children would be adversely impacted if she lost her Section 8 subsidy, that she suffers from depression and anxiety) were insufficient to overcome the seriousness of the criminal activity that occurred in her apartment.

The hearing officer did not make any findings or rulings as to whether McLean had requested a reasonable accommodation based upon her mental health disability, whether the BHA had considered Mclean’s request or whether on the merits McLean was entitled to a reasonable accommodation.

Based upon these findings and rulings, the hearing officer upheld the BHA’s decision to terminate McLean’s Section 8 assistance.

McLean does not challenge the underlying factual findings made by the hearing officer pertaining to the fact that a firearm, ammunition and drugs were found in McLean’s apartment. See, Costa v Fall River Housing Authority, 453 Mass. 614, 627 (2009) (” . . . consistent with applicable due process requirements, hearsay evidence may form the basis of a PHA’s decision to terminate Section 8 assistance so long as that evidence contains substantial indicia of reliability”). Further, McLean does not challenge the hearing officer’s ruling that the presence of those illegal items in her apartment would constitute a serious violation of her lease and her Section 8 family obligations.

A Section 8 tenant is legally responsible for the criminal acts of her household occupants, guests and those under her control. This is so even if the tenant is not aware

 

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that her apartment was being used for criminal activity. The underlying rationale is that the tenant is presumed to have the knowledge and ability to control the conduct of the wrongdoer. See, HUD v. Rucker, 535 U.S. 125 (2002). However, the law recognizes that under certain circumstances, owing to a physical or mental disability, a person who otherwise has violated the terms of her tenancy (or Section 8 program rules) may be able to meet her obligations if she is provided with a reasonable accommodation.

Because the BHA is a public housing provider, is an administrator of the Section 8 program, and because it receives federal funding, it is subject to the provisions of the Fair Housing Amendments Act (“FHAA”) (42 U.S.C. § 3601-3619), Section 504 of the Rehabilitation Act (29 U.S.C. § 794) and the state anti-discrimination statute (G.L. c. 151B). Pursuant to 42 U.S.C. 3603, federally assisted public housing authorities such as the BHA are subject to the anti-discrimination provisions of 42 U.S.C. 306(f) that provides in relevant part:

 

“[D]iscrimination includes … a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a handicapped person] equal opportunity to use and enjoy a dwelling.”

 

Stated in summary fashion the FHAA requires the BHA to afford an otherwise qualified disabled tenant with a reasonable accommodation in the form of a modification of rules, policies and practices to the extent the accommodation is reasonable and necessary to allow the tenant to meet her tenancy obligations (here her obligation to prevent anyone from keeping illegal firearms, ammunition and drugs in her apartment). “[A] reasonable accommodation is required where there is a causal link between the disability for which the accommodation is requested and the misconduct that is the subject of the eviction or other challenged action.” BHA v. Bridgewaters, 452 Mass. 833, 860 (2009).

Ultimately, to establish that she is entitled to a reasonable accommodation McLean must establish that there is a causal link between her disability and her actions (or failure to act) that resulted in the termination of her Section 8 subsidy.

McLean argues the hearing officer committed legal error by failing to recognize at the informal hearing that McLean had articulated a request for a reasonable accommodation based upon her serious mental health disability and then failing to

 

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remand the case to the BHA so that it could consider McLean’s request for reasonable accommodation in accordance with federal and state law, and in accordance with the BHA’s reasonable accommodation policies. I agree.

First, I rule that the hearing officer was aware that McLean had a mental health condition (depression and anxiety) that might constitute a handicap or disability under the provisions of state and federal law. See Record, Exhibit I, Hearing Officer’s Decision, p. 7, footnote 2.

Second, the hearing officer considered McLean’s mental health conditions only in

the context of balancing McLean’s mitigating circumstances against the serious of the lease and program violation in accordance with the provisions of the Section 8 regulations. The standards applicable to mitigation as an element of a Section 8 termination proceeding and the standards applicable to reasonable accommodation under the provisions of federal and state anti-discrimination statutes are significantly different. In contrast to the mitigation provisions of the Section 8 regulations, the laws pertaining to handicap and disability affords tenants much greater protection and imposes upon the BHA a much greater obligation to evaluate and consider a request for a reasonable accommodation.

The hearing officer found that McLean’s statements made during the informal

hearing did not constitute a request for a reasonable accommodation because “she did not argue that her disability caused her to violate her lease and Section 8 rules.” The hearing officer found that McLean “. . . only argued that her disability prevented her to give clear statements during the hearing.” The hearing officer is incorrect as a matter of fact and law.

I find that the hearing officer should have recognized during the informal hearing

conducted on May 6, 2013 that McLean had communicated, albeit imperfectly, a request that she be afforded a reasonable accommodation. From a reading of the transcript McLean appeared to be agitated and confused; and at times she was not particularly clear or articulate when she tried to communicate that there was a connection between her mental health disability and the alleged lease violation. She used fractured grammar and awkward phrasing. It is not surprising to me that the hearing officer misconstrued what McLean had been trying to say. I conclude, however, that McLean’s words, fairly

 

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considered as a whole, did constitute a legally sufficient oral request for a reasonable accommodation. See, Bridgewaters, 452 Mass. at 846. The hearing officer committed legal error in failing to acknowledge that McLean had requested a reasonable accommodation.

Third, there was sufficient evidence presented at the informal hearing to put the hearing officer on notice that McLean had articulated a reasonable basis to support a claim that there existed a causal link (a nexus) between her mental health disability (McLean’s contention that her medication diminished her ability to comprehend what may have been taking place in her apartment) and the breach of her lease (the presence of illegal firearms, ammunition and drugs and firearm that had been hidden in her apartment by her non-occupant son when she was not present). See, Bridgewater, 452 Mass. at 844-848. At the informal hearing McLean was not obligated to prove by a preponderance of the evidence that a causal link existed. It is enough that she presented through her testimony facts sufficient to support a good faith argument that such a causal link existed. Whether or not a legally sufficient causal link exists to support McLean’s request for a reasonable accommodation can only be determined through a full and fair consideration of the facts by the BHA in accordance with the requirements of federal and state antidiscrimination law (and in accordance with the BHA’s reasonable accommodation administrative policies).

I rule that the hearing officer committed legal error when she failed to remand the case to the BHA for consideration of McLean’s reasonable accommodation request. The BHA must give McLean a fair opportunity to present medical and other evidence to support her contention that she has a mental health disability and that there was a causal link between her mental health disability and her failure to comply with her lease as alleged in the Section 8 termination notice.

 

Interim Order

 

Based upon the evidence set forth in the informal hearing record in light of the governing law, it is ORDERED that:

 

1. The BHA hearing officer’s July 25, 2013 decision upholding the BHA’s proposed decision to terminate McLean’s participation in the federal Section 8 Housing Choice Voucher Program is VACATED;

 

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2. This case is remanded to the BHA to consider the merits of McLean’s May 6, 2013 request for a reasonable accommodation;

 

3. The BHA shall afford McLean all notice and administrative appeal rights should the reasonable accommodation request be denied;

 

4. The BHA shall continue to make Section 8 subsidy payments on McLean’s behalf pending further order of this Court;

 

5. The court shall retain jurisdiction of this action;

 

6. The parties shall appear in Court, Courtroom 15, for a status conference on March 26, 2014 at 2 p.m.

 

SO ORDERED.

 

/s/ JEFFREY M. WINIK

FIRST JUSTICE

January 31, 2014

 

 
Docket No.:SUMMARY PROCESS NO. 12H84SP001497

Parties:FEDERAL NATIONAL HOME MORTGAGE CORPORATION, Plaintiff FELIPE MONTAS AND GRISELDA MONTAS, Defendants

Judge:/s/ JEFFREY M. WINIK, FIRST JUSTICE

Date:April 11, 2013
BOSTON DIVISION

ORDER

 

This matter came before the court on the plaintiffs Motion to Strike and to Dismiss Defendants’ Affirmative Defenses and Counterclaims. For the reasons set forth herein, the plaintiff’s motion is ALLOWED in part.

The facts necessary to resolve this motion are not in dispute. The defendants are the former owners of a residential property at 1111-1113 Hyde Park Avenue, in the Hyde Park section of Boston. They defaulted on their mortgage payment obligations. The Plaintiff, Federal Home Loan Mortgage Corporation, acquired title to the property after a foreclosure sale conducted on July 30, 2012.

At the time of the foreclosure and thereafter the defendants occupied the property as their residence. The defendants never rented or leased the property and never occupied the property as tenants prior to the foreclosure sale. The defendants have never entered into a tenancy with the plaintiff (or with the former mortgagee).

In December 2012, the plaintiff commenced this summary process action. The defendants filed a written answer that included a discrimination counterclaim and defense based upon an allegation that the plaintiff failed to afford them a reasonable

 

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accommodation (that would allow them to remain in possession of the premises as tenants) based upon their young daughter’s disability.

Pursuant to G.L. c. 239, s. 8A, a defendant in a summary process action may assert defenses to possession and counterclaims “related to or arising out of such property, rental, tenancy, or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law” only where the premises at issue had been “rented or leased for dwelling purposes.” Here, the defendants never rented or leased the premises as residential occupants prior to or after the plaintiff acquired title to the property upon foreclosure. The plaintiff did not terminate the defendants’ “tenancy” for the simple reason that no tenancy ever existed.

Former owners are obligated to surrender possession of the premises upon demand to the new owner within the meaning of G.L. c. 239, s. 1. The former owners are obligated to pay the new owner for their continued use and occupation of the premises if they remain in possession of the premises after foreclosure. See, G.L. c. 186, s. 3. While evidence regarding the condition of the premises may have some bearing on the fair value of the premises for use and occupation if damages are sought, the mere fact that the new owner is seeking use and damages does not transform the former owner’s occupancy into a tenancy and does not mean that the premises have been “rented or leased for dwelling purposes” within the meaning of G.L. c. 239, s.8A.

I rule as a matter of law that because the defendants are not “tenant[s] or occupant[s]” within the meaning of G.L. c. 239, s. 8A and because the defendants were never tenants, they cannot assert an affirmative defense pursuant to G.L. c. 239, s. 2A or 8A or counterclaims for breach of warranty, negligent repair or for violation of G.L. c. 186, s. s. 14, 18, G.L. c. 93A or discrimination. Deutsche Bank National Trust Company v. Gabriel, 81 Mass. App. Ct. 564 (2012).[1]

However, the reasonable accommodation affirmative defense (based upon an allegation that the plaintiff failed to offer the defendants a post-foreclosure tenancy as a reasonable accommodation based upon their young daughter’s disability) relates to the

 

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[1] I have considered the thoughtful analysis set forth in the August 31, 2012 order the case of Wells Fargo Bank v. Amero, Kerman, J., Northeast Housing Court, No. 12H84SP000870. I believe the law pertaining to the right of a former owner to bring counterclaims in a summary process case is that set forth in Gabriel, supra.

 

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plaintiff’s existing rental program available only to occupants who lost the property upon foreclosure. It is not based upon a right that would exist only if the defendants’ had been tenants.

Accordingly, it is ORDERED that the defendants’ counterclaims shall be stricken from their answer. The defendants’ reasonable accommodation affirmative defense shall not be stricken from their answer.[2]

 

SO ORDERED.

/s/ JEFFREY M. WINIK, FIRST JUSTICE

April 11, 2013
cc:John O. Radeck, Jr., Esq.

Felipe Montas

Griselda Montas

 

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[2] The defendants may proceed with their defense that the plaintiffs title is defective and/or that it does not have a superior right to possession as against the defendant. See, Bank of New York trustee v. KC Bailey, 460 Mass. 322 (2011).

 

 

 

 

 

 

Docket No.:CIVIL ACTION NO. 08H84SP000054

Parties:CITY OF BOSTON INSPECTIONAL SERVICES DEPARTMENT, Plaintiff VS. DAVID FROMM. DAVID W. PERRY, STEVEN W. MACINNIS, ERIC S. SMITH, JUNIPER GARDENS, LLC, SANDRA E. FROMM, KEITH REALTY CORP., AND SAFE HAVEN SOBER HOUSES, LLC., Defendants DAVID FROMM, DAVID W. PERRY, and SAFE HAVEN SOBER HOUSES, LLC. Plaintiffs-in-counterclaim, VS. CITY OF BOSTON INSPECTIONAL SERVICES DEPARTMENT and CITY OF BOSTON, Defendants-in-counterclaim

Judge:/s/ JEFFREY M. WINIK, FIRST JUSTICE

Date:June 5, 2013

BOSTON DIVISION

ORDER REGARDING ADOPTION OF FINDINGS OF FACT RENDERED AS PART OF JUDGMENT ENTERED IN RELATED SUPERIOR COURT ACTION

 

This matter came before the court on the City of Boston’s (the “City”) Motion to Adopt the Superior Court’s Findings and Rulings of Law in Civil Action No. 07-02247. After hearing, the City’s motion is ALLOWED with respects to the findings of fact rendered by the court after a full trial in the related civil action of Safe Haven Sober Homes, Inc. v. Turner & others (Civil Action No. 02247, Brassard, J., December 3, 2011).

 

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The rules governing claim and issue preclusion are summarized in Blanchette y School Committee of Westwood, 427 Mass. 176, 179, n.3 (1998). The Supreme Judicial Court stated that:

 

“The judicial doctrines concerning the preclusive effect of a prior adjudication are encompassed under the generic term of `res judicata’ and consist of claim preclusion and issue preclusion. [citations omitted]. Claim preclusion makes a valid, final judgment conclusive on the parties and their privies, and prevents relitigation of all matters that were or could have been adjudicated in the action. [citation omitted]. Issue preclusion prevents the relitigation of issues actually adjudicated, and essential to the judgment, in a prior action between the same parties or their privies. [citations omitted].”

 

Under certain circumstances claim and issue preclusion may be used defensively by a party in a second action even if that party was not a litigant in the first action. The party seeking to assert defensive claim or issue preclusion would have to establish (1) that the parties against whom preclusion is asserted were parties to the first action, (2) the issues/facts decided in the first action were substantially identical to the issues/facts involved in the second action (even if the substantive claims involved different parties and legal theories), (3) there was a final judgment on the merits in the first action based upon findings that were the product of full litigation and careful decision. Home Owners Federal Say. & Loan Ass ‘n v. Northwestern Fire & Marine Ins. Co., 354 Mass. 448, 455 (1968); Mancuso v. Kinchla, 60 Mass.App.Ct. 558 (2004). A claim or issue is considered to be the same if “it is derived from the same transaction or series of connected transactions.” Saint Louis v. Baystate Medical Center, Inc., 30 Mass.App.Ct 393, 399 (1991).

The claims in the Superior Court action, Safe Haven Sober Homes, Inc. v. Turner & others, arise from essentially the same operative facts as the claims at issue in the Housing Court action. The Safe Haven parties (Fromm, Perry and Safe Haven) were using residential dwellings in Boston to operate “sober houses” for recovering substance abusers. The Safe Haven parties claim that they have the legal right to operate “sober houses” without interference from the city, and that the City has violated state and federal fair housing laws in its effort to close the “sober house” operations. The City claims that the Safe Haven parties are using single family dwellings as unlicensed lodging houses in violation of the zoning code, building code and state law. The Safe Haven parties were plaintiffs in the Superior Court action and are defendants/plaintiffs-in-

 

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counterclaim in the Housing Court action. Although the City was not a party in the Superior Court action, the fair housing and civil rights claims asserted by the Safe Haven parties (against the ISD commissioner, an elected city councilor and an elected state representative) were based in substantial part on the actions taken by the City and city officials to prevent the Safe Haven parties from using single-family dwellings to operate sober houses. Much of the trial testimony and factual findings involved actions taken by or on behalf of the City. The Superior Court case was fully litigated (including nine days of trial with testimony of eighteen witnesses) and Judge Brassard made detailed and thoughtful findings upon the completion of the trial. The City’s zoning and code claims in the Housing Court action (and the Safe Haven parties’ counterclaims) involve these same occurrences.

I conclude that under the doctrine of issue preclusion the factual findings made by Judge Brassard upon completion of the trial in the Superior Court case are entitled to preclusive effect in the Housing Court case. I shall defer deciding that part of the City’s motion that involves claim preclusion until after the Safe Haven appeal from the Superior Court judgment is decided.[1]

Accordingly, it is ORDERED that the specific factual findings set forth as Nos 1 – 168 and 170 -244 in the Supplement to the City of Boston’s Motion to Adopt the Superior Court’s Findings of Fact and Rulings of Law in Civil Action No. 07-02247-H shall be adopted as established facts in the above-captioned Housing Court civil action.[2] I shall not adopt factual

 

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[1]I agree with Safe Haven that defendants Steven W. MacInnis and Eric Smith were not parties in the Superior Court case. MacInnis is the legal owner of the two-story, single-family townhouse condominium residence located at 2599 Washington Street. Smith is the legal owner of the two-story, single-family townhouse condominium residence at 2601 Washington Street. They do not have any ownership or management interest in Safe Haven Sober Houses, LLC. Their sole involvement in the sober house enterprise was that they rented their respective properties to Safe Haven. MacInnis nor Smith were simply Safe Haven’s landlords. MacInnis and Smith are party defendants in the City’s enforcement action. Neither MacInnis nor Smith asserted counterclaims in the Housing Court action against the City. Accordingly, at this time I shall not include them within the reach of this issue preclusion order. This limitation will have little impact in the Housing Court case since the facts found by Judge Brassard centered on the Safe Haven’s sober house use of the properties (subletting space in the residences to recovering addicts) and the actions of the City with respect to the sober house uses. I cannot envision any scenario where MacInnis or Smith will present facts pertaining to the sober house use that are not based in their entirety on the evidence presented by Safe Haven. Therefore, it is likely that MacInnis and Smith will be bound by the Housing Court’s determination as to whether Safe Haven’s operation is entitled to protection under the fair housing or discrimination statutes.

 

[2]I shall reconsider this order if the Appeals Court or Supreme Judicial Court vacates, reverse or modifies the Superior Court judgment, findings or rulings.

 

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finding No. 169 that “neither a sober house nor a rooming house is a listed use in the portion of the Boston Zoning Code that applies to Roxbury.”[3]

 

SO ORDERED

/s/ JEFFREY M. WINIK, FIRST JUSTICE

June 5, 2013

 

cc:Sean P. Nehill, Esq,

Melissa A. Potvin, Esq.

Andrew J. Tine, Esq.

 

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[3]In the amended summary judgment order dated January 11, 2013 I found that “[a]s is set forth in Table B, residential use as a “lodging house” in the 3F zone is a conditional use that requires a special permit from the ZBA. Safe Haven has never sought a special permit from the ZBA to operate its “sober houses” as “lodging houses” and has never asked the City (or the ZBA) as a reasonable accommodation to issue a conditional use permit to operate its “sober houses” as “lodging houses.”