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16-P-209 Appeals Court
No. 16-P-209.
Suffolk. December 1, 2016. – May 9, 2017.
Present: Milkey, Massing, & Sacks, JJ.
Housing. Summary Process. Landlord and Tenant, Eviction, Rent,
Repairs, Habitability, Reprisal against tenant, Consumer
protection, Quiet enjoyment. Practice, Civil, Summary
process, Abatement, Damages. Damages, Breach of implied
warranty of habitability.
Summary Process. Complaint filed in the Boston Division of
the Housing Court Department on February 4, 2013.
The case was heard by Jeffrey M. Winik, J.
A. Joseph Ross (Ellen Rappaport-Tanowitz also present) for
the tenant.
W. Paul Needham for the landlord.
MILKEY, J. The defendant, Gerald Moynahan, rents a small
apartment from the plaintiff, South Boston Elderly Residences,
Inc. (landlord). In this summary process action, Moynahan
retained possession, which is no longer at issue. The remaining
disputes concern his counterclaims. A Housing Court judge found
that the landlord committed a breach of the warranty of
habitability with respect to two different problems with the
apartment. One was a recurring moisture problem that became so
bad at one point that mushrooms were growing in the carpeting.
The other was the lack of ventilation due to inaccessible
windows. However, for various reasons that the judge explained
in a detailed memorandum of decision, Moynahan received only
minor rent abatement damages, and his claim brought pursuant to
G. L. c. 93A was dismissed. The judge also concluded that the
landlord had presented clear and convincing evidence to overcome
the statutory presumption that its efforts to evict Moynahan
were in retaliation for his reporting the sanitary code
violations at the apartment. We affirm in part, reverse in
part, and remand for additional proceedings.
Background. In November, 2007, Moynahan moved into unit 13
of an elderly housing complex that the landlord owns in the
South Boston neighborhood of Boston. The building had just been
renovated, and Moynahan was the first tenant to move into unit
13 after the renovation. This ground-floor apartment totals
approximately 453 square feet in size. Because of the sloping
topography of the site, part of the unit is subterranean. Unit
13 has long suffered from moisture and related mold problems.
The specific progression of these problems is important to
resolving this case, and we therefore turn to reviewing that
history in some detail.
1. The moisture problems. As the landlord admitted at
trial, moisture issues in unit 13 predated Moynahan’s tenancy.
Specifically, one of the landlord’s property management agents
testified that even before Moynahan moved in, “the unit had
water issues.” According to Moynahan’s testimony, unit 13 was
“extremely damp” during the summer of 2008, and he discovered
“mold, mildew, something of that sort” growing in his bedroom
closet. As was documented in electronic mail (e-mail) exchanges
admitted in evidence, Moynahan had reported the mold and
dampness issues to the landlord by December of 2008 at the
latest. For example, a December 23, 2008, e-mail message
related that there was “something black growing on one interior
wall,” and noted “the peculiar cat-like odor originating” from
that area.1 A follow-up letter that Moynahan sent on December
1 It bears noting that Moynahan originally reported the
moisture issues in the context of his trying to move to a
different apartment in the same building that he found “so much
larger and brighter.” After he was told by the landlord that
such moves generally were prohibited, he offered the moisture
problems in unit 13 as a potential ground for making an
exception to the policy. In response to the property manager’s
leaving a message that she was sorry he was unhappy with his
apartment, Moynahan emphasized that he was not unhappy with it,
and he downplayed the impact of the moisture issues on him.
Specifically, he characterized “the cat-like odor” as “rather
unpleasant, but tolerable,” and “the mold-or-mildew” as not
being “any real problem,” or “anything I would be concerned
about and most certainly not anything I would complain about.”
29, 2008, complained again in detail about “the mold and the
cat-like odor,” and it relayed Moynahan’s belief that “the mold
may also be the cause of chronic bronchial congestion that I
have in the morning and that I never, in sixty-eight years,
previously had.” After inspecting unit 13, the landlord
confirmed that “[t]he carpet was damp,” “fixed the air
conditioner” (which was believed to be the source of the
problem), and “dried out the rug.”
Moynahan did not report any mold problem again until March
17, 2010, when — as is uncontested — he raised it orally
during an annual inspection of his apartment. A follow-up
inspection was scheduled and, by letter dated March 23, 2010,
the landlord notified Moynahan that the “inspection was not able
to be completed due to the amount of clutter and debris in [his]
home.” The letter described a “‘sea’ of paper bags and boxes,”
it stated that this clutter violated the lease, and it warned of
some of the specific dangers presented, such as a fire hazard.
With respect to the alleged mold in his closet, the letter
stated that “[t]here is no way any work can be performed in that
closet until most if not all clutter/boxes are removed.” It
also warned of the need to address the mold issues immediately:
“This mold can and will spread to the rest of the apartment and
we need to address this as soon as possible.” Finally, the
letter closed by scheduling a follow-up inspection on April 19,
Moynahan provided a detailed written response to the
landlord’s letter. That response described the various items he
had stored in the apartment, and it acknowledged that
“[c]ertainly in as small a space as this apartment all these
result in what could colloquially be called a ‘cluttered’
space.” The letter denied that his storage practices violated
the lease and denied that any of the stored items could be
described as “debris.”
On April 19, 2010, the date of the scheduled follow-up
inspection, the landlord never showed, prompting Moynahan to
send an angry letter regarding his having wasted the day. In
fact, despite the dire tone of the landlord’s March 23, 2010,
letter with respect to both the clutter and mold issues, there
is no evidence that the landlord took any further action for
more than a year. The property manager herself described what
happened: “I think at that point it kind of fell to the
wayside.” Moynahan continued to pay his rent.
By August, 2011, the moisture problems had worsened to the
point that, as noted, there were mushrooms growing in the
carpeting. As occurred in 2008, see note 1, supra, Moynahan
raised the moisture problem in unit 13 with the landlord in the
context of his seeking to move to a different apartment in the
same building. In a letter dated August 19, 2011, Moynahan
explained that he wanted to move because his existing apartment
“has for some time now been totally unsuitable for
occupancy by any person, and it is becoming steadily and
very rapidly more so, owing to extreme dampness and the
wetness of the carpeted floor, a large and very rapidly
expanding portion of which is, at this writing, soaking wet
because of water coming up from below. . . .
“The identical problem has recurred every summer to some
extent, but I have never complained about it because no
other unit in this building was then available, and I most
certainly did not want to experience what the lady in the
immediately adjacent apartment number 11 had experienced
when she had insoluble water ingress problems in her
apartment: namely, to be moved to one of your units in
When Moynahan was not allowed to move to the open apartment, he
reported the moisture problem in unit 13 to the Boston
inspectional services department (ISD), which cited the landlord
for the problem. According to the judge, by September 9, 2011,
a plumber hired by the landlord “repaired the wall-mounted air
conditioning unit that appears to have been the source of the
water leak.” However, the water had caused extensive damage to
the walls and carpeting. The necessary repairs were delayed by
contentious negotiations between the landlord and Moynahan over
the terms of Moynahan’s vacating the apartment to allow the work
to be done. Moynahan eventually temporarily moved into the
adjacent unit 11, and the landlord then addressed the damage
caused by the moisture issues, completing those repairs by March
3, 2012.
2. The October, 2011, notice to quit. Meanwhile, on
October 6, 2011, the landlord served Moynahan with a notice to
quit the premises. At that point, Moynahan still was current in
paying his rent, and the notice to quit was based on the
cluttered state of Moynahan’s apartment. Thereafter, the
landlord refused to cash Moynahan’s rent checks. Moynahan
stopped payment on the accumulated uncashed checks to the
landlord, instead paying the rent into an escrow account.2
3. The ventilation problem. Moynahan began moving his
possessions back into unit 13 in April, 2012. He told the
landlord, however, that he could not stay in the unit for
extended periods of time due to fumes emanating from the fresh
paint and new carpeting. Moynahan pointed out that although the
apartment had six windows that theoretically could be opened to
ventilate the fumes, these windows were inaccessible because
they were eight feet from the floor. In May, 2012, Moynahan
contacted ISD about the ventilation issues. The agency
concluded that the inadequate ventilation caused by the
inaccessible windows constituted a sanitary code violation.
After ISD intervened, the landlord addressed the ventilation
issue by installing on some of the windows special latches that
could be opened using a pole. ISD signed off on this fix in
2 Moynahan did pay his rent to the landlord for two months,
March and April, 2012.
December, 2012. In the interim, Moynahan slept at his sister’s
4. The December, 2012, notice to quit and the court
action. Having addressed the ventilation issue, the landlord on
December 14, 2012, served Moynahan with a second notice to quit,
this one based on the unpaid rent. The current summary process
action followed on February 4, 2013. Moynahan brought numerous
counterclaims to the summary process action. As the case
crystallized over the course of the proceedings, the key issues
were the following: the extent to which the moisture and
ventilation problems constituted a breach of the warranty of
habitability and warranted rent abatement damages; whether the
landlord’s conduct violated c. 93A or statutes prohibiting
retaliation by landlords, see G. L. c. 186, § 18, and G. L.
c. 239, § 2A; and whether the landlord’s entry into unit 13 at
times when Moynahan had signaled he could not be present
interfered with his quiet enjoyment of the premises, see G. L.
c. 186, § 14.
5. The judge’s findings and rulings. Following a threeday
trial, the judge issued extensive findings and rulings. The
judge found that both the moisture problem and the ventilation
problem constituted a breach of the warranty of habitability,
but he allowed only limited rent abatement damages during the
respective periods. With respect to the moisture problem, the
judge determined that the first material breach of the warranty
of habitability occurred in August, 2011, when the existence of
a severe moisture problem was well-documented and the landlord
plainly had notice of the problem. The judge declined to give
Moynahan any rent abatement damages for any moisture problems
prior to August, 2011, offering two different types of reasons
for this. First, he found that although Moynahan had reported
moisture-related problems prior to August, 2011, “those
conditions were relatively minor and did not endanger Moynahan’s
health or safety or otherwise diminish the value of the
apartment.” Second, with respect to the mold issues reported in
March, 2010, the judge found that clutter in the apartment
prevented the landlord’s inspector from gaining the access
necessary to confirm whether the problem existed.
Although the damage caused by the leak was not repaired
until March 3, 2012, the judge declined to give Moynahan any
rent abatement damages for the months of October, November, and
December of 2011, on the grounds that during those months,
Moynahan made unreasonable demands and prevented the landlord
from making the repairs. The only breach of warranty damages
that the judge awarded for the moisture problem were based on a
thirty percent rent abatement for August and September of 2011,
and a twenty percent abatement for January and February of 2012.
These damages equaled one month’s rent, $788.
With respect to the ventilation problem, the judge did not
award Moynahan any abatement damages for the period prior to
May, 2012, that is, before ISD cited the landlord for the
violation. For the time period from May to December, 2012,
during which Moynahan slept at his sister’s residence, the judge
awarded Moynahan rent abatement damages of only five percent,
for a total of $315.20 over this eight-month period. The judge
declined to calculate damages based on a higher abatement
percentage because he found that the ventilation problem “had
[only] a minor impact on Moyn[a]han’s ability to live in the
apartment.” The judge did “not credit Moynahan’s testimony that
he had difficulty breathing in his unit,” and he found that
“[a]ny paint vapor fumes that may have been present in [u]nit 13
would have had a negligible impact on a tenant of average
Because the landlord served notices to quit within six
months of Moynahan’s complaints to ISD about the moisture and
ventilation issues, the judge found that Moynahan was entitled
to the statutory presumption that the landlord acted in
retaliation. See G. L. c. 186, § 18 (creating an affirmative
3 Elsewhere in his lengthy memorandum, the judge repeated
his view that Moynahan may have been unduly sensitive to the
ventilation issue, finding “no credible evidence that any
reduction in the flow of air in [u]nit 13 resulting from the
inability to open the windows would have had any significant
adverse impact on a tenant of average sensitivity.”
action for damages); G. L. c. 239, § 2A (creating a defense to a
summary process action). Nevertheless, the judge ruled that the
landlord rebutted that presumption by clear and convincing
evidence showing “sufficient independent justification for
seeking to terminate Moynahan’s tenancy”: the clutter issues
for the first notice to quit and the sustained nonpayment of
rent for the second. The judge specifically found that the
landlord “would have taken action to terminate Moynahan’s
tenancy in October 2011 and in December 2012 even if Moynahan
hadn’t complained about the water leaks in 2011 and the lack of
window ventilation in 2012.”
With respect to Moynahan’s claim brought pursuant to G. L.
c. 93A, the judge ruled that the landlord had not committed a
breach of that statute because it had acted promptly and
reasonably to make repairs once Moynahan brought the problems to
its attention (with any delays the fault of Moynahan).
Finally, with respect to Moynahan’s claim that the landlord
interfered with his quiet enjoyment by entering unit 13 without
his permission, the judge found that the landlord entered the
apartment without Moynahan present only to address conditions
that Moynahan had reported and that this was not a violation
because the lease authorized the landlord “to enter the premises
for the purpose of making reasonable inspections and repairs and
After making findings, the judge afforded Moynahan one week
to pay the rent owed (less abatement damages), along with
interest and costs of suit. See G. L. c. 239, § 8A, fifth par.
After Moynahan did so, the court entered judgment of possession
in his favor.
Discussion. “On review of a jury-waived proceeding, we
accept the judge’s findings of fact unless they are clearly
erroneous. . . . We review the judge’s rulings on questions of
law de novo.” U.S. Bank Natl. Assn. v. Schumacher, 467 Mass.
421, 427 (2014) (citations omitted). On appeal, Moynahan makes
numerous claims of error, which we address in turn.
1. Breaches of warranty of habitability. The implied
warranty of habitability includes the promise to maintain a
rented unit, “[a]t a minimum,” in compliance with the State
sanitary code. See Simon v. Solomon, 385 Mass. 91, 96 (1982).
Where a tenant has proved a breach of the warranty of
habitability, he is entitled to damages that can offset a
landlord’s claim of unpaid rent. The tenant remains “liable for
4 Moynahan also unsuccessfully brought counterclaims based
on violation of the security deposit statute, infliction of
emotional distress, and discrimination. Because Moynahan raises
no claim of error with regard to the judge’s dismissal of these
counterclaims, we do not address them. See Mass.R.A.P.
16(a)(4), as amended, 367 Mass. 921 (1975).
the reasonable value, if any, of his use of the premises for the
time he remains in possession.” Boston Hous. Authy. v.
Hemingway, 363 Mass. 184, 202 (1973). The question is how much
the defects reduced the value of the residence. Id. at 203
(“The measure of damages would be the difference between the
value of each apartment as warranted and the rental value of
each apartment in its defective condition”). Moynahan makes a
number of distinct arguments as to why he should have been given
a larger rent abatement than he was given with respect to the
moisture and ventilation problems.5
a. Period for which damages are due. With respect to the
moisture problem, Moynahan argues that the judge erred in not
abating part of his rent for the period prior to August, 2011.
As Moynahan points out, he first notified the landlord that
there were problems with mold and dampness in the apartment in
December, 2008, and the landlord admitted at trial that “the
unit had water issues” prior to Moynahan’s tenure there.6
Similarly, with respect to the ventilation problem, Moynahan
argues that the judge erred by abating part of his rent only as
5 Moynahan has never argued that the moisture and
ventilation problems are linked, that is, that the lack of
adequate ventilation helped cause or exacerbate the moisture
problem. We therefore treat these issues as distinct problems.
6 It bears noting that a landlord is deemed to have
constructive notice of conditions present at the inception of a
tenancy without proof of actual notice. McKenna v. Begin, 3
Mass. App. Ct. 168, 173-174 (1975).
of May, 2012, when he claimed that the fumes from the apartment
repairs prevented him from staying there. As he points out,
although the lack of ventilation came to the fore at that time,
it existed throughout his tenancy.
We are not unsympathetic to Moynahan’s arguments. For
example, there was evidence that there may have been significant
moisture-related problems in his apartment prior to August,
2011, and that the landlord had notice of these problems. To
the extent that the judge concluded that the mere existence of
the clutter issues justified the landlord’s failure to follow up
on the reported mold issues, we firmly disagree.7 See Berman &
Sons, Inc. v. Jefferson, 379 Mass. 196, 200 (1979)
(“Considerations of fault do not belong in an analysis of
warranty”). Moynahan was, by all accounts, prepared to
accommodate the landlord’s scheduled visit on April 19, 2010,
and there is nothing to suggest that on that date clutter would
have prevented inspection or repairs. That Moynahan did not
complain again about the landlord’s lack of follow-up does not
excuse the landlord from ignoring the problem for roughly the
next eighteen months. Once notice of a defect is given, it is
7 Moynahan independently argues that the judge abused his
discretion in excluding from evidence a particular photograph
that Moynahan proffered (and which he now argues was relevant to
whether clutter prevented the landlord from addressing the mold
problem). We pass on that question, because it is of no
consequence to our resolution of this case.
not incumbent upon the tenant to remind the landlord that
repairs are necessary. See ibid. (landlord strictly liable for
material breach of warranty of habitability upon notification).
Nevertheless, the existence of a code violation by itself
does not necessarily entitle a tenant to a finding that a
material breach of the warranty of habitability has occurred.
McKenna v. Begin, 5 Mass. App. Ct. 304, 308 (1977) (minor code
violations, without more, did not entitle the tenant to
damages). When a breach of the warranty of habitability first
occurs is a question of fact, and Housing Court judges have
significant latitude in resolving such issues. See Hemingway,
supra at 200; McKenna v. Begin, 3 Mass. App. Ct. 168, 173-174
(1975). The trial judge specifically found that, prior to
August, 2011, the moisture related problems “were relatively
minor and did not endanger Moynahan’s health or safety or
otherwise diminish the value of the apartment.” Similarly, the
trial judge found no evidence that the ventilation issue caused
Moynahan any appreciable problem prior to May, 2012. We are
bound by such findings unless they are “clearly erroneous.”
Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996). On the
current record, we are unable to say that they were. See
generally Jablonski v. Casey, 64 Mass. App. Ct. 744, 747 (2005)
(finding of fact not clearly erroneous unless there is no
evidence to support it or “the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed”), quoting from United States v.
United States Gypsum Co., 333 U.S. 364, 395 (1948).
b. Delay in repairs. Moynahan additionally argues that
the judge erred in not awarding him rent abatement damages for
the months of October, November, and December of 2011. Moynahan
argues that the judge in effect unfairly placed the blame on him
for the three-month delay in making the repairs. As an initial
matter, we note that Moynahan’s characterization of what the
judge did fails to take into account that the judge assessed
damages based on a twenty percent abatement for January and
February of 2012, even though during that time the landlord had
made available to Moynahan the other unit, which raised no
habitability concerns.8 In other words, during this five-month
period, Moynahan faced substandard living conditions for only
three months (having been provided adequate replacement housing
for the other two months), and was awarded abatement damages for
two months. In view of this, he can claim that the judge
deprived him of only one month of abatement damages. Given that
there is substantial support in the record for the judge’s
finding that Moynahan was responsible for causing at least some
8 The fact that the landlord filed no cross-appeal
challenging this aspect of the judge’s ruling does not mean that
we cannot take it into consideration in evaluating Moynahan’s
of the delay in repairs during the fall of 2011, we discern no
error in the judge’s award of abatement damages for this period.9
See generally Brown v. LeClair, 20 Mass. App. Ct. 976, 978
(1985) (recognizing that “damages in rent abatement cases are
not capable of precise measurement”).
c. Percent reduction for ventilation issues. Moynahan
argues that the judge erred in allowing him only a five percent
abatement in rent for the period he claimed the fumes in the
apartment prevented him from staying there. As noted, the judge
allowed Moynahan only that nominal abatement based in part on
his finding that any indoor air quality issues were minimal for
“a tenant of average sensibility.”10 This implicates the
question whether a reduction in value should be measured by the
actual impact of the relevant code violation (or condition of
disrepair) on the tenant making the claim or instead measured by
9 We recognize that when a landlord has violated the
warranty of habitability, it does not get a grace period from
damages for the reasonable time necessary to make repairs. See
Berman & Sons, Inc., supra at 199-200. However, we do not view
that rule as precluding a trial judge from reducing the
abatement damages by an amount that reflects unreasonable delays
caused by the tenant.
10 It is not clear on what evidence the judge based this
assessment, although he appears to have found it significant
that others did not note or recall a fume problem in unit 13.
Moynahan did not argue that he was entitled to a presumption
that he was a person of average sensibility, nor did the judge
consider that issue. See Payne v. R.H. White Co., 314 Mass. 63,
65-66 (1943) (addressing such a presumption in the context of
the implied warranty of merchantability).
some sort of “average sensibility” standard. This is a question
of law subject to de novo appellate review.
Neither party has brought to our attention, nor have we
found, any appellate case addressing this issue directly.
Reference in at least one case to “the rental value” of the
apartment in its impaired condition could be taken to support
the judge’s view that a tenant’s damages are to be measured
without attention to his or her particular circumstances. See,
e.g., Hemingway, 363 Mass. at 203. However, in that case, none
of the issues touched on a tenant’s special sensitivities.
Thus, the court was not faced with whether a test based on
market principles should give way if the presence of a
plaintiff’s special circumstances meant that using that
yardstick would not make the injured party whole. See McKenna,
supra at 309 (“One of the established aims of determining
damages for breach of contract is to put the injured party in
the position he would have been in if performance had been
rendered as promised”).11 We have addressed that tension in the
analogous context of measuring damages caused by breaches of
purchase and sale contracts. As we stated in American
11 See generally F. A. Bartlett Tree Expert Co. v. Hartney,
308 Mass. 407, 411 (1941) (“A plaintiff in an action for breach
of contract is entitled in general to damages sufficient in
amount to compensate him for the loss actually sustained by him
and to put him in as good a position financially as he would be
in had there been no breach”).
Mechanical Corp. v. Union Mach. Co. of Lynn, 21 Mass. App. Ct.
97, 101 (1985):
“The usual formula for measuring damages for breach of a
real estate purchase and sale agreement — the difference
between the contract price and the market value on the date
of the breach — is merely a different formulation of the
general rule for measuring contract damages. In the usual
case, the contract price less the market value represents
the seller’s actual loss, and the formula, therefore,
affords the injured seller an adequate remedy. In some
cases, however, the actual loss suffered . . . exceeds the
amount yielded by that formula.”
Thus, we have cautioned against strictly applying market-based
tests as a measure of contract damages where doing so would fail
to compensate a plaintiff for his or her injuries.12
Of course, the particular circumstances at issue in
American Mechanical Corp., supra at 99-103, involved special
economic circumstances, not, as here, sensitivity to chemical
12 Whether a plaintiff is a person of ordinary sensibilities
has arisen in older cases involving the implied warranty of
merchantability. See, e.g., Payne v. R.H. White Co., supra at
65 (noting, in a case in which the plaintiff had what appears to
have been an allergic reaction to a dress she had bought, that
“[t]he plaintiff must show that the dress was unfit to be worn
by a normal person and cannot recover by merely showing that it
was unfit for her or for some unusually susceptible person to
wear”). However, such cases have addressed that issue as going
to whether there has been a breach of the warranty of
merchantability, not what the measure of damages should be if a
breach of warranty has been shown. Here, the judge found that
the lack of ventilation caused a material breach of the warranty
of habitability (a finding that is not in dispute). Moreover,
the same cases that have recognized an average sensibility
standard in the context of the warranty of merchantability have
also recognized that a plaintiff is entitled to a presumption
that he or she is a person of average sensibility (significantly
reducing the “bite” of such a test). See note 10, supra, citing
id. at 65-66.
exposure. However, that distinction supports rather than
undercuts Moynahan’s case. That is because the implied warranty
of habitability sounds in tort as well as contract. See Scott
v. Garfield, 454 Mass. 790, 794 (2009) (visitors who are injured
by defect in apartment that violates the implied warranty of
habitability may sue based on that breach to recover personal
injury damages). It is a well-established principle of tort law
that the defendant must take its plaintiff as it finds him or
her. See Wiemert v. Boston Elevated Ry. Co., 216 Mass. 598, 603
(1914); doCanto v. Ametek, Inc., 367 Mass. 776, 783-784 (1975).
In the case before us, although the judge appears to have
concluded that Moynahan may be subject to special sensitivities,
he nevertheless found a material breach of the warranty of
habitability. That finding is fully supported given that unit
13 effectively had no ventilation whatsoever until the windows
were made accessible. In the face of that breach, Moynahan
could not be made whole unless he was compensated for the
difference between the unit’s warranted value and its diminished
value to him due to the lack of ventilation. We therefore hold
that the judge erred to the extent that he based his calculation
of abatement damages on the fact that Moynahan might happen to
be more sensitive to the code violation than someone of “average
sensibility” (however that is measured).
To be sure, even if the judge had applied the correct
standard, he was free to reject Moynahan’s claim on the facts
presented at trial. Indeed, the judge declined to credit
Moynahan’s testimony that the fumes were as bad as he maintained
(for example, the judge expressly rejected Moynahan’s claim that
“he had difficulty breathing”). Because the judge found that
the absence of accessible windows caused a material breach of
the warranty of habitability and then assessed some abatement
damages for the breach, it is plain that the judge did not
totally discredit Moynahan’s claim that there was an indoor air
problem related to the lack of ventilation. We are unable to
discern the extent to which the judge’s employment of an
incorrect legal standard affected his specific determination of
what rent abatement damages were due. We therefore remand this
issue to the judge for reconsideration of this issue in light of
this opinion.
2. Retaliation. Moynahan claimed that the landlord sought
to evict him from unit 13 in retaliation for his bringing the
code violations to the attention of ISD. Two similar but
separate statutory provisions apply to such contentions. The
first, G. L. c. 186, § 18, creates a damages remedy for tenants,
while the second, G. L. c. 239, § 2A, creates a defense to
summary process actions. The two provisions generally parallel
each other. Thus, for example, both prohibit the landlord from
retaliating against tenants for engaging in certain protected
activities, including reporting code violations. In addition,
both create a presumption that certain actions by a landlord,
occurring within six months of the protected activity, are
Because the initial notice to quit was served so close in
time to Moynahan’s having reported the moisture issues to ISD,
the landlord acknowledges that the judge was correct in
concluding that Moynahan is entitled to the statutory
presumption that it acted in retaliation. See G. L. c. 186,
§ 18, as appearing in St. 1978, c. 149, § 1. Section 18 states
that the presumption can “be rebutted only by clear and
convincing evidence that [the landlord’s] action was not a
reprisal against the tenant and that [the landlord] had
sufficient independent justification for taking such action, and
would have in fact taken such action, in the same manner and at
the same time the action was taken, regardless of tenants
engaging in, or the belief tenants had engaged in, activities
protected under this section.” Ibid. Clear and convincing
evidence means proof that “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 Bdcst. Co., 372
Mass. 582, 588 (1977) (citation omitted).
In concluding that the landlord had successfully rebutted
the statutory presumption, the judge accepted its claim that
Moynahan kept his apartment in a chronic state of dangerous
clutter. As Moynahan points out, there is much in the record
that arguably calls into question the landlord’s claims as to
the extent of any clutter problem.13 Nevertheless, for purposes
of our analysis, we assume that there is adequate evidentiary
support for the judge’s finding that clutter problems existing
as of October, 2011, gave the landlord an independent
justification for serving Moynahan with the notice to quit. For
the landlord to overcome the statutory presumption of
retaliation, however, there still would need to be clear and
convincing evidence that the landlord in fact would have sent
the notice to quit “in the same manner and at the same time
13 For example, the only photos that apparently were
introduced to document such clutter are hardly as definitive as
the landlord claims (showing, as they do, plastic storage bins
stacked on shelving). In addition, as Moynahan accurately
points out, although ISD inspectors were in the apartment on
numerous occasions to examine the moisture problem and related
issues, they did not cite any clutter problem except in
September of 2012, when Moynahan claims he was unable to
organize his belongings after returning to unit 13 because of
“his sensitivity to the new paint and carpet.” See 105 Code
Mass. Reg. § 410.602(B) (1994). The judge did not explain why
he declined to credit ISD’s apparent prior lack of concern with
clutter in unit 13, while he incongruously found it significant
that ISD inspectors did not document a problem with fumes when
they were inspecting the apartment in 2012.
. . . regardless of” Moynahan reporting the moisture issues to
ISD. See G. L. c. 186, § 18.
The landlord is unable to make such a showing on the
current record. There is no evidence that any clutter problem
was any worse in October, 2011, than it was in March, 2010, when
the landlord first raised the issue with Moynahan. Despite the
dire tone of the March, 2010, warnings about clutter, the
landlord did nothing to follow up on these issues until Moynahan
reported the moisture problem to ISD one and one-half years
later. At trial, the landlord offered no explanation for this
delay beyond saying that the issue “kind of fell to the
wayside.” From all that appears before us, the landlord was
content to let any clutter issues lie unaddressed so long as
Moynahan did not press the mold issue and continued to pay his
rent. Under these circumstances, the landlord has not supplied
clear and convincing proof that it would have served the
October, 2011, notice to quit had Moynahan not sought ISD’s
assistance in remedying a code violation. The judge’s contrary
findings are clearly erroneous. Where a tenant has shown that a
landlord acted in retaliation, he is entitled to statutory
damages not less than one month’s rent and not more than three
months’ rent, or his actual damages, whichever is greater,
together with reasonable attorney’s fees and costs. G. L.
c. 186, § 18. We remand the retaliation issue to the trial
judge for a determination of appropriate damages.14
3. Chapter 93A. As the judge recognized, a failure by a
landlord to cure a code violation within a reasonable time after
notice constitutes a violation of the landlord-tenant
regulations that the Attorney General has promulgated pursuant
to G. L. c. 93A, § 2(c). See 940 Code Mass. Regs. § 3.17(1)(i)
(1993). Such a failure constitutes a violation of the statute
itself. See Clark v. Leisure Woods Estates, Inc., 89 Mass. App.
Ct. 87, 94 (2016).15 Indeed, independent of the Attorney
14 Moynahan also contends that the December, 2012, notice to
quit was served in retaliation for his ventilation complaint.
However, he has not articulated why he would have been entitled
to the presumption of retaliation set forth in G. L. c. 186,
§ 18, since the notice to quit was served more than six months
after he reported the ventilation issue to ISD. In any event,
because the second notice to quit was based on nonpayment of
rent, Moynahan is not entitled, for the purpose of his
counterclaim, to the presumption of retaliation. G. L. c. 186,
§ 18 (“receipt of any notice of termination of tenancy, except
for nonpayment of rent, . . . within six months after the tenant
has commenced . . . such . . .complaint shall create a
rebuttable presumption that such notice or other action is a
reprisal”[emphasis added]). Unaided by that presumption,
Moynahan is unable to demonstrate clear error in the judge’s
finding that the December, 2012, notice to quit was not
undertaken in retaliation for his complaint. Although Moynahan
has argued that he lawfully withheld rent in escrow and that
therefore G. L. c. 239, § 8A, recognizes his right to bring a
claim pursuant to G. L. c. 186, § 18, he does not argue that
such withholding of rent restored the statutory presumption of
retaliation. We therefore need not consider that issue. See
Mass.R.A.P. 16(a).
15 Nothing in Klairmont v. Gainsboro Restaurant, Inc., 465
Mass. 165, 173-175 (2013), is to the contrary. That case
General’s regulations, the Supreme Judicial Court has long
recognized that a landlord can violate c. 93A based on a
“substantial and material breach of the implied warranty of
habitability.” Cruz Mgmt. Co. v. Thomas, 417 Mass. 782, 790
Of course, this does not mean that such a c. 93A violation
would result in the recovery of any additional actual damages,
though it may permit actual damages to be multiplied or provide
a separate basis for an award of attorney’s fees and costs.
Ibid. (tenant “not entitled to an additional recovery of actual
damages for c. 93A violation” based on condition of apartment,
but this could serve as basis of multiple damages and attorney’s
fees), citing Simon, 385 Mass. at 109-111. Although a tenant is
not entitled to duplicative damages for claims arising out of
the same conditions, a tenant is entitled to rely on whichever
involved a different Attorney General regulation that
expansively purported to render any “act or practice [that]
fails to comply with existing [laws] meant for the protection of
the public’s health, safety, or welfare” a per se violation of
c. 93A, without further constraining, in any factual way, the
“acts or practices” in question or recognizing a reasonable
period to cure the underlying noncompliance. See 940 Code Mass.
Regs. § 3.16(3) (1993).
16 Cruz does not stand for the proposition, as Moynahan
would have it, that a violation of the warranty of habitability,
in and of itself, constitutes a violation of c. 93A. Chapter
93A applies to “unfair or deceptive” conduct, Klairmont v.
Gainsboro Restaurant, Inc., supra at 173. In contrast,
“[c]onsiderations of fault do not belong in an analysis of [a
breach of] warranty” claim. Berman, 379 Mass. at 200.
theory of damages provides him or her the greatest measure of
damages. Wolfberg v. Hunter, 385 Mass. 390, 398-401 (1982).
The judge rejected Moynahan’s c. 93A claim based on his
finding that the landlord acted with alacrity to cure the code
violations as soon as it learned of them (delayed only by
Moynahan’s own conduct). As noted, the judge’s endorsement of
the landlord’s responsiveness is at odds with facts that the
landlord conceded. Specifically, the landlord acknowledged that
it knew unit 13 had “water issues” even before Moynahan moved in
and that it failed to follow up on Moynahan’s report of the
related mold issues in March, 2010. See 940 Code Mass. Regs.
§ 3.17(1)(c), (1)(i) (1993). Granted, the landlord claimed that
there were severe clutter problems in unit 13 at that time.
However, if these problems were as dire as the landlord claimed,
it should have followed up on them even though the tenant had
caused them. Thus, the fact that the state of the apartment
presented multiple serious habitation problems tends to
exacerbate rather than excuse the landlord’s inaction.
It does not necessarily follow that Moynahan has made out
his c. 93A claim. That claim was premised on material code
violations, and Moynahan bore the burden of demonstrating when
such violations first arose. Because there was no clear error
in the judge’s finding that Moynahan failed to substantiate any
material violations prior to August, 2011, Moynahan cannot rely
on the landlord’s inaction before that date to support his
c. 93A claim. With the judge having found that the landlord
acted promptly once the material violations were brought to his
attention in August, 2011, the judge committed no error in
dismissing the c. 93A claim.
4. Quiet enjoyment. Finally, we turn to Moynahan’s claim
that the landlord interfered with his quiet enjoyment, see G. L.
c. 186, § 14, by entering the premises without prior notice or
authorization.17 The words “quiet enjoyment” have “little
inherent meaning,” but their use reflects the statutory
incorporation of a “rich background in decisional law.” Simon,
supra at 102. Relevant here, quiet enjoyment protects a
tenant’s right to “freedom from serious interferences with [the]
tenancy” that “impair the character and value of the leased
premises.” Ibid.
The judge ruled that there had been no interference with
Moynahan’s quiet enjoyment because, by signing the lease,
Moynahan had given the landlord prior permission to enter for
the purposes of inspection and repair.18 To the extent that the
17 At trial, Moynahan also argued that the moisture and
ventilation problems, in addition to constituting a breach of
warranty, interfered with his quiet enjoyment. On appeal, he
pursues his quiet enjoyment claim based solely on the alleged
unlawful entry.
18 Specifically, section 9(e) of the lease states that the
tenant agrees “[t]o permit the [landlord], or his/her agents
judge interpreted the lease as allowing the landlord to enter
the premises at any time so long as the entry was for the
purpose of inspection or repair, we do not adopt that broad
reasoning. See G. L. c. 186, § 14 (lease terms waiving § 14 are
void). Rather, we assume arguendo that implicit in the lease
were notions of reasonableness and that, barring true
emergencies, the parties would seek to negotiate a mutually
acceptable time and date for such entry. Given the particular
facts of this case as found by the judge, we conclude that the
landlord’s actions do not rise to the level of a serious
interference with the tenancy. We therefore affirm the judge’s
denial of the quiet enjoyment claim on this ground. See
Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997).
Moynahan has identified only one incident that reasonably
can be characterized as an unauthorized entry. As noted, in
August, 2011, Moynahan reported that his apartment continued to
suffer persistent and serious moisture issues that were
worsening. The landlord attempted to gain access to Moynahan’s
unit to inspect the problem the very next day, despite
Moynahan’s request that the inspection take place at the end of
the week when he could be present. The landlord’s agent
testified that she had been unable to physically enter the unit
. . . to enter the premises for the purpose of making reasonable
inspections and repairs and replacements[.]”
because the door was blocked by a large box, but that she had
“put [her] head around the door to see the condition of the
In some circumstances, a single intrusion into a tenant’s
home may constitute an interference with quiet enjoyment. Cf.
Manzaro v. McCann, 401 Mass. 880, 884 (1988) (landlord’s failure
to silence a ringing smoke alarm for one day violated right to
quiet enjoyment). However, the context of the unauthorized
entry and the presence of mitigating circumstances are important
considerations in determining whether such an entry interfered
with the tenant’s quiet enjoyment of the rented premises. See
United Co. v. Meehan, 47 Mass. App. Ct. 315, 320 (1999).
Here, the judge found, and Moynahan does not dispute, that
the landlord’s purpose in its limited entry into the property
was to address what Moynahan himself characterized as a very
serious water leak, a condition likely to cause damage to both
Moynahan’s property and that of other tenants if ignored. Cf.
ibid. (where landlord acts prudently to protect the rights and
property of both the tenant and other residents, a single entry
did not violate the covenant of quiet enjoyment). Moynahan did
not claim that the landlord interfered with his belongings
during the entry. Finally, while the landlord’s desire to enter
the premises immediately may seem inconsistent with its having
left the previously reported mold problem unattended for the
prior one and one-half years, the landlord should not be faulted
for finally taking the problem seriously. Having reported
“seriously unhealthy” and rapidly deteriorating conditions in
the apartment warranting “emergency measure[s],” the judge found
that Moynahan did not act reasonably in denying the landlord
access to address the problem for several days.
In sum, the landlord’s entry into the apartment was neither
unreasonable nor so significant an intrusion upon Moynahan’s
possession as to impair the character or value of his tenancy
and did not violate G. L. c. 186, § 14. We therefore affirm the
judgment in favor of the landlord with regard to Moynahan’s
alleged breach of the covenant of quiet enjoyment, albeit on
narrower grounds than those relied upon by the judge.
5. Attorney’s fees. Moynahan has requested, and is
entitled to, an appropriate award of attorney’s fees and costs
for successfully prosecuting his claim for retaliation pursuant
to G. L. c. 186, § 18. As to fees relating to this part of the
appeal, within fifteen days Moynahan shall submit a statement of
his attorney’s fees and costs in accordance with the procedure
specified in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), and
within fifteen days thereafter, the landlord may submit an
opposition to the amount requested.
Disposition. We reverse the judgment insofar as it
concluded that the landlord did not violate G. L. c. 186, § 18,
and we remand that issue for a determination of damages and for
a determination of reasonable attorney’s fees and costs incurred
in prosecuting that claim in the trial court. We vacate so much
of the judgment that credited Moynahan only a five percent
reduction in rent for May through December, 2012, as damages for
a breach of the warranty of habitability with respect to the
ventilation issues in his apartment, and we remand that issue
for further proceedings consistent with this opinion. The
judgment is otherwise affirmed.
So ordered.