Housing Court Cases - Judge Anne Chaplin, Southwestern Division

HOUSING COURT

Cranberry Highway Estates, PLAINTIFF v. Laurie Zavalcofsky

DEFENDANT

SOUTHEASTERN DIVISION

Docket # 06-SP-06058

Parties: Cranberry Highway Estates, PLAINTIFF v. Laurie Zavalcofsky

DEFENDANT

Judge: ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: April 27, 2007

ORDER

After hearing on the defendant’s Motion For Award of Counsel Fees, Costs and Expenses, the Court rules as follows: Following a trial on the merits of this action, the defendant prevailed on her counterclaims under G.L. c. 186, s.14, G.L. c. 186, s.18, G.L. c. 93A and G.L. c. 186, s.15B(2)(a), each of which provides for the recovery of reasonable attorney’s fees.

In evaluating a request for an award of attorneys 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, 379 Mass. 381, 388-9 (1979). See Heller v. Silverbranch Construction Corp., 376 Mass. 621, 629 (1978). (‘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’). However, the actual amount of the attorney’s fee is largely discretionary with the trial judge. Linthicum, supra at 388.

The Court has reviewed the Affidavit submitted by Attorney Susan Nagl, who was the defendant’s trial counsel in this action. The Court had the opportunity to observe Ms. Nagl during the trial of this action. While the legal issues were not complex, there were significant factual disputes. Ms. Nagl represented her client skillfully, and her client recovered a judgment on her counterclaims under G.L. c. 186, s.14, G.L. c. 186, s.18, G.L. c. 93A and G.L. c. 186, s.15B(2)(a). The Court considers Ms. Nagl’s hourly rate of $200.00 to be fair and reasonable given her experience. Her rate is within the range of hourly rates charged by attorneys of similar experience in the Brockton area. After reviewing Ms. Nagl’s Affidavit, the Court finds that 22.3 hours were reasonably attributable to the counterclaims under G.L. c. 186, s.14, G.L. c. 186, s.18, G.L. c. 93A and G.L. c. 186, s.15B(2)(a) and represented time for which Ms. Nagl is entitled to compensation, in the amount of $4,460.00.

The defendant’s Motion For Award of Counsel Fees, Costs and Expenses is ALLOWED, as follows:

1. The Court awards Ms. Nagl reasonable attorney’s fees in the amount of $4,460.00, to be paid by the plaintiff.

2. This Order shall enter nunc pro tunc to March 8, 2007.

End Of Decision

HOUSING COURT

Cranberry Highway Estates, PLAINTIFF v. Laurie Zavalcofsky

DEFENDANT

SOUTHEASTERN DIVISION

Docket # 06-SP-06058

Parties: Cranberry Highway Estates, PLAINTIFF v. Laurie Zavalcofsky

DEFENDANT

Judge: ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: March 7, 2007

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

This is a summary process action in which the plaintiff seeks to recover possession of the premises from the defendant and damages for unpaid rent. The defendant filed a written answer 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 defendant, Laurie Zavalcofsky, has resided at 3030 Cranberry Highway, Unit 17, East Wareham, MA (‘the premises’) as a tenant at will since September 1, 2001. The plaintiff, Cranberry Highway Estates, is the owner of the premises and is the defendant’s landlord.

Kaup Shenoy, President of Cranberry Highway Estates, Inc., testified that the rent for the premises was $650.00 per month from August 2001 through December 2003. He testified that the plaintiff sent the defendant a notice of rent increase to $660.00 per month effective January 2004, a notice of rent increase to $685.00 effective January 2005, and a notice of rent increase to $710.00 effective January 2006. He testified that the defendant did not pay rent for July 2003, in the amount of $650.00, until August 28, 2003, did not pay rent for May 2004 in the amount of $660.00, and did not pay the $10.00 rent increase for the months of January 2004 through April 2004 and June 2004 through November 2004, a total of $100.00. He also testified that the defendant made the following rent payments in 2005: January, $660.00; February, $700.00; March,

$735.00; April, $700.00; May, $690.00; June, $700.00; July, $685.00; and $700.00 per month for the months of August 2005 through December 2005, a total of $8,370.00[1]. He testified that the defendant paid $710.00 for January 2006 and $710.00 for February 2006 in March 2006, and that the defendant has failed to pay him any rent for the months of March 2006 through December 2006, a total of $7,100.00. The plaintiff testified that the defendant currently owes him a total of $7,710.00 in unpaid rent.

The defendant testified that she moved into the premises on September 1, 2001 at a monthly rent of $650.00. She testified that she believes that she paid rent for July 2003 twice-once on July 10, 2003 and once on August 28, 2003-because she has 13 money order receipts for rent payments in 2003. She testified that she did not agree to pay the rent increase in 2004 until December 2004 because of ongoing problems with the premises, and that she overpaid her rent in 2005 by $150.00 because she wanted to pay off the May 2004 arrearages of $650.00. She testified that she paid $710.00 per month for the months of January 2006 and February 2006, that she has not made any further rental payments due to ongoing problems with the premises, and that she has placed approximately $7,710.00 into an escrow account.

The Court credits the defendant’s testimony on these issues, and finds that the defendant overpaid her rent in 2003 by $650.00, did not agree to the 2004 rent increase of $10.00 per month until December 2004, and overpaid her rent for 2005 by $150.00. Applying the defendant’s rental payments to the most aged balance, the Court finds that the defendant has failed to pay the plaintiff any rent for the months of April 2006 through December 2006, owes the plaintiff a balance of $560.00 for the month of March 2006, and currently owes the plaintiff a total of $6,950.00 in unpaid rent.

The Court finds that, on September 9, 2006, the plaintiff served the defendant with a 14 Day Notice of Termination of Tenancy At Will for Non-Payment of Rent.

At trial, the plaintiff testified that, on November 27, 2006, he sent the defendant a letter increasing the rent to $745.00 effective January 1, 2007. The Court finds that this letter stated, in pertinent part: ‘Legally, your tenancy-at-will will terminate on December 31, 2006, and I am offering to establish a new tenancy-at-will that will commence on January 1, 2007. Please signify your agreement to a new tenancy-at-will at the new rent [of $745.00] by forwarding a rent check on or before January 1, 2007.’ The plaintiff testified that he received a money order from the defendant in the amount of $745.00 on or about December 14, 2006. The Court finds that the November 27, 2006 letter and the plaintiff’s acceptance of the defendant’s $745.00 money order on or about December 14, 2006 constituted a waiver of the September 9, 2006 Notice of Termination of Tenancy and created a new tenancy at will with the defendant. See Mastrullo v. Ryan, 328 Mass. 621 (1952); Chestnut Hill Realty Corp. v. Mahoney, No. 94-SP-05358 (Winik, J., September 13, 1996). Accordingly, the Court allowed at trial the defendant’s oral Motion for Directed Finding dismissing the complaint for possession in this action without prejudice and without costs.

The defendant filed a written answer and counterclaims based on breach of the implied warranty of habitability and violations of G.L. c. 186, s.14, G.L. c. 239, s.2A,[2] G.L. c. 186, s.18, G.L. c. 93A, G.L. c. 186, s.15B and failure to provide utilities in violation of G.L. c. 186, s.14.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim ‘any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant testified that, at the inception of her tenancy, the roof leaked, and that she notified the plaintiff’s park manager, Raymond Lavoie, and Paul Calandria, the plaintiff’s business manager, of the problem. She testified that the roof was repaired at some unspecified time during her tenancy, but continued to leak when the wind blew in a certain direction. She testified that the roof began to leak again in 2004. She testified that she told Mr. Calandria on several unspecified occasions that the roof was leaking, but that it was not repaired.

The defendant testified that, in March 2006, she notified the plaintiff in writing that she was withholding her rent until certain repairs were made in the premises. This notice stated, in pertinent part: ‘I am holding March 06 rent until you fix the leak under kitchen sink and also the roof in the bedroom. It rains in every time it rains and snows. This has been an ongoing problem since July 2000 (sic) in which Paul Calandria had patched last year. It has ruined drapes and several comforters. I have told Paul on several occasions but he chooses to ignore the ongoing problem…’

The defendant testified that, after she sent the rent withholding letter in March 2006, Mr. Calandria told her he would make the repairs, but he never gave her notice that he would do so. She testified that during the third week of March 2006, she showed Mr. Calandria the bathroom floor, which was rotting through to the crawl space, exposing the pipes. She testified that the bathroom floor was repaired on September 16, 2006.

Dr. Shenoy testified that, on April 20, 2006, he sent the defendant a written response to her March 2006 letter. This letter states, in pertinent part: ‘Made an appointment twice with the plumber to fix the kitchen sick (sic) but failed to get in your cottage for various reasons. We will give you the name and number of our plumber so that you can call and make an appointment which is convenient for both of you to fix your plumbing problems. We are in touch with the roof repair person to correct the leek (sic)…’

Dr. Shenoy testified that the roof was repaired within a month of the defendant’s written complaint in March 2006. The Court does not credit this testimony.

The defendant testified that, on April 16, 2004, there was a fire in the heater in the premises and the Wareham Fire Department turned off the gas. She testified that Mr. Lavoie was present while the Fire Department was there, and that she reported the problem to Mr. Calendria the next day. She testified that she had no heat or hot water for ten (10) months, and that she used space heaters to keep warm and showered at a friend’s house. She testified that the plaintiff did not repair the heater until December 19, 2004, and that the plaintiff installed a new hot water heater on February 4, 2005[3].

The Court finds that, on December 7, 2004, the Town of Wareham Board of Health (‘Board of Health’) inspected the premises and made the following Report: ‘Complaint: Has heat/only lukewarm water. Report: I checked the hot water, and it was not consistent. It varied from hot to cold to warm. Most of the heat registers were blocked with various pieces of furniture which can affect the heat and the operation of the furnace. There is also an exposed wire from this cottage to a tree that has a street light. Action taken: I will confirm this with the wire and plumbing inspector and make an appointment for another inspection. Follow-up Date: 12/15/04 Findings: This follow-up inspection along with the wire inspector Mr. Parker, revealed the exposed wire and new heating system with no inspection sticker. The wiring inspector and I spoke to the park manager and he will correct the situations and get back to our departments. Another inspection will follow. Follow-up: This inspection (01/03/05) along with Paul Maloney the Plumbing Gas Inspector revealed violations of the plumbing code. Mr. Maloney advised the park manager to correct the situation and contact his office and the B.O.H. when the situation has been corrected. 2/15/05 No further action needed, the Savary Brothers have repaired the heating system, and the tenant has sufficient water to meet her needs.’

The defendant testified that, at the inception of her tenancy, there was a light on a pole outside her unit which was connected to her electric meter, that she complained about this light being on her electric meter, and that the plaintiff removed the light in 2005, but left an exposed wire above ground. Dr. Shenoy testified that the plaintiff removed the light in June 2005, and removed the exposed wire no later than September 5, 2006. The Court credits the witnesses’ testimony on these issues.

The Court finds that, on July 31, 2006, the Board of Health inspected the premises and found the following conditions, as listed in its Report dated August 8, 2006: ‘Repair or replace faulty electrical outlets and or fixtures in Living Room, Bedroom, Spare room; Furnish and install smoke and carbon monoxide detectors in building; Repair and replace plywood on bathroom wall covering vent. Replace bathroom floor. Repair holes in bathroom wall. Replace ceiling tiles in bedroom that need replacement. Repair leaks in roof in corner of bedroom ceiling. Repair outside wall in bedroom; Furnish and or replace Screens in Bedroom; Furnish New Screens for Front and Rear Entry Doors; Replace all baseboard

heater covers that are missing. Remove outside electrical wiring on tree. Repair and replace gutters and downspouts.’ Dr. Shenoy testified that he received the August 8, 2006 Board of Health Report on August 30, 2006. The Court credits this testimony.

Dr. Shenoy testified that the plaintiff had no notice of the following conditions listed in the August 8, Board of Health Report until the plaintiff received it on August 30, 2006: Faulty electrical outlets and/or fixtures, missing smoke and carbon monoxide detectors, plywood on the bathroom wall covering the vent, holes in the bathroom wall, and missing screens. Dr. Shenoy testified that he was very surprised that there were no smoke detectors or carbon monoxide detectors in the defendant’s unit, since the plaintiff had already provided them for all tenants. He testified that there were screens in the defendant’s unit at the inception of her tenancy. The Court credits this testimony.

The defendant testified that, for ‘a good two (2) years,’ there were leaks in one corner of the bedroom ceiling of the premises, where the siding on the exterior wall of the bedroom was coming away from the house. She testified that the siding and the bedroom ceiling were repaired on September 17, 2006. The Court credits this testimony.

Dr. Shenoy testified that the necessary electrical work was done a week after the plaintiff received the August 8, 2006 Board of Health Report on August 30, 2006, and that all of the conditions listed on the August 8, 2006 Board of Health Report were repaired within 40-45 days after August 30, 2006, i.e., by October 10-15, 2006. The defendant testified that the gutter has not been repaired. The Court credits Dr. Shenoy’s testimony on these issues, and finds that all of the conditions listed in the August 8, 2006 Board of Health Report were repaired by October 15, 2006.

The defendant testified that, on December 8, 2006, the hot water in the premises was lukewarm, that she notified Mr. Calandria of this condition on December 11, 2006. She testified that, on December 12, 2006, an electrician replaced the fuse, but the water was still lukewarm. She testified that, on December 13, 2006, she called the Board of Health about this condition, and that the plumber replaced a hose and ‘turned up the tank’ on December 19, 2006. The Court credits this testimony.

The Court finds that there was no credible evidence at trial that there was no heat in the premises at any time during the defendant’s tenancy. Accordingly, the Court finds that the defendant is not entitled to damages under G.L. c. 239, s.8A based on this condition.

The Court finds that the plaintiff provided the defendant with smoke detectors, carbon monoxide detectors, and screens prior to the July 31, 2006 Board of Health inspection of the premises. The Court finds that it is a reasonable inference that the defendant caused the smoke detectors, carbon monoxide detectors and screens to be missing at the time of the Board of Health inspection. Accordingly, the Court finds that the defendant is not entitled to damages under G.L. c. 239, s.8A based on these conditions.

The Court finds that the leaky roof at the premises is a condition which constitutes a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway,

363 Mass. 184, 200-201 (1973). The Court finds that there was no evidence at trial of any specific date or time frame during which the defendant notified the plaintiff of a leak in the roof of the premises between the time that the plaintiff repaired the roof at the inception of the defendant’s tenancy and the unspecified time in 2005 when the plaintiff patched the roof. Accordingly, the Court is unable to compute damages for this time period, and, accordingly, does not award the defendant any damages for breach of the implied warranty of habitability through the unspecified time in 2005 when the plaintiff patched the roof. The Court finds that, in her notice to the plaintiff in March 2006 that she was withholding her rent, the defendant notified the plaintiff that the roof leaked, and finds that the roof was repaired on September 17, 2006. The Court finds that there was no evidence at trial that the plaintiff knew or should have known of a leaky roof at the premises between the time in 2005 that the plaintiff patched the roof and the time in March 2006 that the plaintiff received the defendant’s rent withholding notice. The Court finds that the defendant is entitled to damages under G.L. c. 239, s.8A for the leaky roof for the period between March 1, 2006[4] and September 17, 2006.

The Court finds that the defendant notified the plaintiff in March 2006 that the kitchen sink was leaking, and finds that there was no evidence at trial when the kitchen sink was repaired. Since the plaintiff notified the defendant on April 20, 2006 that it would provide the defendant with the name of a plumber whom she could call at her convenience, the Court finds that the defendant is entitled to damages under G.L. c 239, s.8A for the period between March 1, 2006 and April 20, 2006.

The Court finds that there was no evidence at trial as to when the plaintiff knew or should have known of the defective siding at the premises. The Court finds that it is a reasonable inference that the plaintiff knew or should have known of the existence of this condition in March 2006, when the defendant notified the plaintiff in writing of the leaky roof. Accordingly, the Court finds that the defendant is entitled to damages under G.L. c. 239, s.8A based on this condition for the period of March 1, 2006 through September 17, 2006.

The Court finds that the remaining conditions listed in the Board of Health Reports are conditions which constitute material breaches of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). Accordingly, the Court finds that the defendant is entitled to damages under G.L. c. 239, s.8A based on these conditions.

leaky roof in the premises and the damaged ceiling tiles in the bedroom of the premises for the 201 day period between March 1, 2006 and September 17, 2006, (30%); (2) for the leaking kitchen sink in the premises for the 51 day period between March 1, 2006 and April 20, 2006, (10%); (3) for the rotting bathroom floor in the premises for the 181 day period between March 20, 2006 and September 16, 2006, (30%); (4) for the insufficient hot water in the premises for the 60 day period between December 7, 2004 and February 4, 2005 and the 9 day period between December 11, 2006 and December 19, 2006, (10%); (5) for the exposed wire on a pole outside the premises for the 638 day period between December 7, 2004 and September 5, 2006, (5%); (6) for the faulty electrical outlets in the premises for the 7 day period between August 30, 2006 and September 5, 2007, (5%); (7) for the holes in the bathroom wall for the 19 day period between August 30, 2006 and September 17, 2006, (10%); (8) for the defective siding at the premises for the 201 day period between March 1, 2006 and September 17, 2006, (20%); (9) for the remaining conditions listed in the August 8, 2006 Board of Health Report, in the aggregate, for the 47 day period between August 30, 2006 and October 15, 2006, (5%), calculated as follows: ($23.34/day[5] x 30% = $7.00 x 201 = $1,407.00) + ($23.34/day x 10% = $2.33 x 51 = $118.83) + ($23.34/day x 30% = $7.00 x 181 = $1,267.00) + [($21.70/day x 10% = $2.17 x 25 = $54.25) + ($22.52/day x 10% = $2.25 x 35 = $78.75) + ($23.34/day x 10% = $2.33 x 9 = $20.97) = $153.97] + [($21.70/day x 5% = $1.09 x 25 = $27.25) + ($22.52/day x 5% = $1.13 x 365 = $412.45) + ($23.34/day x 5% = $1.17 x 248 = $290.16) = $729.86] + ($23.34/day x 5% = $1.17 x 7 = $8.19) + ($23.34/day x 10% = $2.33 x 19 = $44.27) + ($23.34/day x 20% = $4.67 x 201 = $938.67) + ($23.34/day x 5% = $1.17 x 47 = $54.99) = $4,722.78.

In her written answer and counterclaims, the defendant contends that the plaintiff violated G.L. c. 186, s.14 by failing to make repairs, transferring the responsibility for payment of common area lighting to her without her knowledge or consent, and requiring her to pay for gas and electricity without a written letting agreement.

G.L. c. 186, s.14 provides, in pertinent part: ‘Any lessor or landlord of any building or part thereof occupied for dwelling purposes… who is required by law…to furnish water, hot water, heat, light, power, gas…to any occupant of such building or part thereof, who willfully or intentionally fails to furnish such water, hot water, heat, light, power, gas…at any time when the same is necessary to the proper or customary use of such building or part thereof,…or who transfers the responsibility for payment for any utility services to the occupant without his knowledge or consent, or any lessor or landlord who directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant…shall…be liable for actual and consequential damages, or three month’s rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee, all of which may be applied in setoff to or in recoupment against any claim for rent owed or owing…’

Not every breach of the implied warranty of habitability constitutes a violation of G.L. c. 186, s.14. While the statute

does not require that the landlord’s conduct be intentional, Simon v. Solomon, 386 Mass. 91 (1983), it does require that the landlord’s conduct cause a serious interference with the tenant’s quiet enjoyment. Doe v. New Bedford Housing Authority, 417 Mass. 263, 284-285 (1994); Lowery v. Robinson, 13 Mass.App.Ct. 982 (1982). ‘The covenant of quiet enjoyment protects a tenant’s right to freedom from serious interference with his tenancy-acts or omissions that impair the character and value of the leased premises. (citations omitted).’ Doe v. New Bedford Housing Authority, supra at 285. The Court finds that the plaintiff’s failures to repair the leaky roof in the premises and the damaged ceiling tiles in the bedroom of the premises for the 201 day period between March 1, 2006 and September 17, 2006, the rotting bathroom floor in the premises for the 181 day period between March 20, 2006 and September 16, 2006, the insufficient hot water in the premises for the 60 day period between December 7, 2004 and February 4, 2005, the exposed wire on a pole outside the premises for the 638 day period between December 7, 2004 and September 5, 2006, and the defective siding at the premises for the 201 day period between March 1, 2006 and September 17, 2006 constitute serious interferences with the defendant’s quiet enjoyment of the premises. Accordingly, the Court finds that the defendant is entitled to damages under G.L. c. 186, s.14 in the amount of $2,130.00, which represents three (3) months rent, plus attorney’s fees, based on this claim.

The State Sanitary Code, 105 CMR 410.354, provides, in pertinent part: ‘(A) The owner shall provide the electricity and gas used in each dwelling unit unless (1) Such gas or electricity is metered through a meter which serves only the dwelling unit or other area under the exclusive use of an occupant of that dwelling unit…; and (2) A written letting agreement provides for payment by the occupant.’

The defendant testified that, at the inception of her tenancy, a light mounted on a pole in the common area of the park was on her electric meter, that she complained to the plaintiff about this condition in 2002, and that it was not taken off her electric meter until 2005. Dr. Shenoy testified that this light is a security light, that the defendant complained about it being on her meter and that she did not want to pay for it. He testified that the light was disconnected from her electric meter in June 2005. The Court credits the witnesses’ testimony on this issue.

The Court finds that the plaintiff’s transfer of the

responsibility for payment of the electricity for the security light from September 1, 2001 through June 2005 constitutes a serious interference with the defendant’s quiet enjoyment of the premises. Doe v. New Bedford Housing Authority, 417 Mass. 263, 284-285 (1994); Lowery v. Robinson, 13 Mass.App.Ct. 982 (1982). Accordingly, the Court finds that the defendant is entitled to damages under G.L. c. 186, s.14 in the amount of $2,130.00, which represents three (3) months rent, plus attorney’s fees, based on this claim.

Dr. Shenoy testified that there was no written letting agreement with respect to the defendant’s tenancy, and that the tenant is responsible for payment of heat, hot water, gas and electricity. He also testified that, on July 20, 2006, the defendant served the plaintiff with her answer and counterclaims in a prior summary process action in this Court, i.e., No. 06-SP-05595. The Court takes judicial notice that one of the defendant’s counterclaims in that action was for requiring the defendant to pay for gas and electricity without a written letting agreement in violation of G.L. c. 186, s.14. The defendant testified that she has continued to be responsible for the payment of her gas and electric bills through the date of the trial of this action. The Court finds that, since July 20, 2006, the defendant has paid $112.34 for electricity and $388.15 for gas, a total of $500.49. Since the defendant objected to paying for gas and electricity without a written letting agreement on July 20, 2006, the Court finds that the defendant is entitled to damages under G.L. c. 186, s.14 based on this claim. See Poncz v. Loftin, 34 Mass.App.Ct. 909, 911 (1993).

‘When three months’ rent has been assessed for one violation, the incentive function of the triple rent provision is fulfilled. Therefore, we hold that a tenant proceeding under s.14 may collect only one such award, covering all claims that the tenant has raised or reasonably could have raised in the suit. Further, if actual damages arising from a single claim or from all claims combined exceed three months’ rent, the triple rent measure has no function, and the tenant’s remedy is limited to actual damages.’ Simon v. Solomon, 385 Mass. 91, 110-11 (1982). Accordingly, the Court finds that the defendant is entitled to actual damages in the amount of $500.49 under G.L. c. 186, s.14 based on this claim.

G.L. c. 186, s.18 provides, in pertinent part: ‘Any person or agent thereof who threatens to or takes reprisals against any tenant of residential premises for the tenant’s act of…reporting to the board of health or, in the city of Boston, to the commissioner of housing inspection or to any other board having as its objective the regulation of residential premises; or reporting or complaining of such violation or a suspected violation in writing to the landlord or to the agent of the landlord…shall be liable for damages which shall not be less than one month’s rent or more than three months’ rent, or the actual damages sustained by the tenant, whichever is greater, and the costs of the suit, including a reasonable attorney’s fee. The receipt of any notice of termination of tenancy except for non-payment of rent or, of increase in rent or, of any substantial alteration in the terms of tenancy within six months after the tenant has…made such report

or complaint…shall create a rebuttable presumption that such notice or other action is a reprisal against the tenant for engaging in such activities. Such presumption shall be rebutted only by clear and convincing evidence[7] that such person’s action was not a reprisal against the tenant and that such person 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 tenant engaging in, or the belief that tenants had engaged in, activities protected under this section.’

The Court finds that, since the Notice To Quit which forms the basis for this action was for non-payment of rent, the Court finds that the defendant is not entitled to the statutory presumption of retaliation.

The Court finds that the defendant notified the plaintiff in March 2006 that she was withholding her rent until the plaintiff repaired the leak in the kitchen sink and the leaky roof at the premises. The Court finds that the plaintiff served the defendant with two (2) 14 Day Notices To Quit for Non-Payment of Rent, on May 5, 2006 and on September 9, 2006, and did not make any repairs until after the defendant called the Board of Health on July 31, 2006. The Court finds, on the facts of this case, that the plaintiff’s act of serving the defendant with the Notice To Quit constitutes a reprisal for her withholding of rent. Accordingly, the Court finds that the defendant is entitled to damages under G.L. c. 186, s.18 in the amount of $2,130.00, which represents three (3) months rent, plus reasonable attorney’s fees.

In her written answer and counterclaims, the defendant contended that the plaintiff has violated the provisions of G.L. c. 93A.

Dr. Shenoy testified that Cranberry Highway Estates, Inc. consists of 45 units, comprised of a mobile home park of 42 units and three (3) ‘free-standing units, like cottages,’ including the unit occupied by the defendant. The Court finds that the plaintiff is engaged in the trade or business of real estate and finds that the plaintiff is subject to the provisions of G.L. c. 93A.

The Attorney General, acting pursuant to statutory authority, has promulgated regulations, 940 CMR 3.17 et seq., that identify conduct on the part of an owner of residential property that is deemed to be an unfair or deceptive act or practice. 940 CMR 3.17(1) provides, in pertinent part: ‘It shall be an unfair or deceptive act or practice for an owner to…(1) fail to comply with the State Sanitary Code or any other law applicable to the conditions of a dwelling unit within a reasonable time after notice of a violation of such code or law from the tenant or agency.’

The Court finds that the plaintiff’s breach of the implied warranty of habitability constitutes a violation of G.L. c. 93A. A landlord violates G.L. c. 93A when the Court finds that the breach of the implied warranty of habitability is material and substantial. Cruz Management Co., Inc. v. Thomas, 417 Mass. 782 (1994); Dorgan v. Loukas, 19 Mass.App.Ct. 959 (1985). The Court further finds that the plaintiff’s failures to repair the leaky roof in the premises and the damaged ceiling tiles in the bedroom of the premises for the 201 day period between March 1, 2006 and

September 17, 2006, the rotting bathroom floor in the premises for the 181 day period between March 20, 2006 and September 16, 2006, the insufficient hot water in the premises for the 60 day period between December 7, 2004 and February 4, 2005, the exposed wire on a pole outside the premises for the 638 day period between December 7, 2004 and September 5, 2006, and the defective siding at the premises for the 201 day period between March 1, 2006 and September 17, 2006 were willful or knowing. Accordingly, the defendant is entitled to an award of double damages under G.L. c. 93A, s.9 in the amount of $8,951.06.[8] The Court finds that the plaintiff’s violation of G.L. c. 93A with respect to the remaining conditions in the premises was not willful or knowing. Accordingly, the defendant is not entitled to an award of double damages under G.L. c. 93A, s.9 for this violation.

The defendant is not entitled to recover cumulative damages arising from the same facts under every theory of recovery, but she is entitled to recover damages under the theory which results in the largest award of damages. Wolfberg v. Hunter, 385 Mass. 390 (1982). The defendant’s breach of the implied warranty of habitability claim, her claim under G.L. c. 186, s.14 for failure to make repairs, and this claim under G.L. c. 93A arise from the same sets of facts and involve the same damages. The Court will award damages for the plaintiff’s failure to make repairs under G.L. c. 93A rather than under G.L. c. 186, s.14 with respect to the leaky roof, the rotting bathroom floor, the insufficient hot water, the exposed wire and the defective siding, since that provides the defendant with the largest recovery, and will adjust the award of damages for breach of the implied warranty of habitability for the remaining conditions by subtracting the sum of $4,475.53 from the total award of damages for that claim. This results in a net award of damages for breach of the implied warranty of habitability of $247.25.

In her written answer and counterclaims, the defendant contends that the plaintiff violated the provisions of G.L. c. 186, s.15B (security deposit).

The defendant testified that, on August 23, 2001, she gave the plaintiff’s rental collection agent, Alice Schneider, a money order in the amount of $1,400.00, which represented first month’s rent in the amount of $650.00, a security deposit in the amount of $650.00, and a pet deposit in the amount of $100.00, and that Ms. Schneider gave her a written receipt identifying the $650.00 as a security deposit. The defendant testified that she wrote out this receipt and that Ms. Schneider signed it as ‘rental collection agent.’ Dr. Shenoy testified that he had never seen the receipt before it was shown to him at trial, and that, although Alice Schneider was an employee of the plaintiff in August 2001, neither she nor anyone else at the park had the authority to collect rent. He testified that rent was collected at the rent box located in the park or mailed to his office in Brockton. He testified that he did not take a security deposit from the defendant, that it was a last month’s rent, and that the monthly spreadsheet of the defendant’s rental account which he sent to her on a regular basis throughout her tenancy carried that $650.00 as a last month’s rent. He testified that the defendant never questioned the fact that her

rental account showed a last month’s rent and not a security deposit. Dr. Shenoy testified that the plaintiff did not pay the defendant any interest on her last month’s rent. The Court credits Dr. Shenoy’s testimony on these issues.

The Court finds that Ms. Schneider, as an employee of the plaintiff, was an agent of the plaintiff, but finds that there was no credible evidence at trial that Ms. Schneider had actual authority to collect a security deposit from the defendant. ‘Even where an agent-principal relationship exists, however, the principal has liability for the agent’s acts toward third parties only if the agent was acting with the actual or apparent authority of the principal in that transaction. See Restatement (Second) of Agency, s.s.7, 8 (1958)…Apparent authority is ‘created as to a third person by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him.’ Restatement (Second) of Agency, supra at s.27. See Linkage Corp. v. Trustees of Boston University, 425 Mass. 1, 16, cert. denied, 522 U.S. 1015 (1997), quoting Hudson v. Massachusetts Property Insurance Underwriting Association, 386 Mass. 450, 457 (1982)…Apparent authority exists only if the [third party] reasonably relied on the principal’s words or conduct at the time he entered the transaction that the agent is authorized to act on the principal’s behalf…’ Theos & Sons, Inc. v. Mack Trucks, Inc., 431 Mass. 736, 743 and 745 (2000). ‘Apparent authority is not established by the putative agent’s words or conduct, but by those of the principal.’ Rubel v. Hayden, Harding & Buchanan, Inc., 15 Mass.App.Ct. 252, 255 (1983).

The Court finds that there was no credible evidence at trial that the plaintiff, either by words or conduct, gave Alice Schneider apparent authority to act as the plaintiff’s agent for the purpose of accepting a security deposit from the defendant on August 23, 2001. Accordingly, the Court finds that, on August 23, 2001, the plaintiff accepted a last month’s rent from the defendant in the amount of $650.00.

G.L. c. 186, s.15B(2)(a) provides, in pertinent part: ‘Any lessor or his agent who receives, at or prior to the commencement of a tenancy, rent in advance for the last month of the tenancy from a tenant or prospective tenant shall give to such tenant or prospective tenant at the time of such advance payment a receipt indicating the amount of such rent, the date on which it was received, its intended application as rent for the last month of the tenancy, the name of the person receiving it and, in the case of an agent, the name of the lessor for whom the rent is received, and a description of the rented or leased premises, and a statement indicating that the tenant is entitled to interest on said rent payment at the rate of five per cent per year or other such lesser amount of interest as has been received from the bank where the deposit has been held payable in accordance with the provisions of this clause, and a statement indicating that the tenant should provide the lessor with a forwarding address at the termination of the tenancy indicating where such interest may be given or sent.

‘Any lessor or his agent who receives said rent in advance for the last month of tenancy shall, beginning with the first day of

tenancy, pay interest at the rate of five per cent per year…Such interest shall be paid over to the tenant each year as provided in this clause…Interest shall not accrue for the last month for which rent was paid in advance. At the end of each year of tenancy, such lessor shall give or send to the tenant from whom rent in advance was collected a statement which shall indicate the amount payable by such lessor to the tenant. The lessor shall at the same time give or send to such tenant the interest which is due or shall notify the tenant that he may deduct the interest from the next rental payment of such tenant. If, after thirty days from the end of each year of the tenancy, the tenant has not received said interest due or said notice to deduct the interest from the next rental payment, the tenant may deduct from his next rent payment the interest due…’

The Court finds that the plaintiff has not paid the defendant any interest on her last month’s rent. Accordingly, the Court finds that the defendant is entitled to damages under G.L. c. 186, s.15B(2)(a) in the amount of $182.16, calculated as follows: $650.00 x 5% = $32.50/yr. ? 365 = $.09/day x 2,023[9] = $182.07, plus reasonable attorney’s fees.

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. The complaint for possession is dismissed without prejudice and without costs.

2. Judgment enter for the plaintiff for damages for unpaid rent in the amount of $6,950.00, plus costs in the amount of $235.00, a total of $7,185.00

3. Judgment enter for the defendant on her counterclaim under G.L. c. 239, s.8A in the amount of $247.25.

4. Judgment enter for the defendant on her counterclaim under G.L. c. 186, s.14 in the amount of $2,630.49, plus reasonable attorney’s fees.

5. Judgment enter for the defendant on her counterclaim under G.L. c. 186, s.18 in the amount of $2,130.00, plus reasonable attorney’s fees.

6. Judgment enter for the defendant on her counterclaim under G.L. c. 93A in the amount of $8,951.06, plus reasonable attorney’s fees.

7. Judgment enter for the defendant on her counterclaim under G.L. c. 186, s.15B(2)(a) in the amount of $182.07, plus reasonable attorney’s fees.

8. The foregoing orders for judgment paragraphs 2 through 7 result in a net judgment for the defendant in the amount of $6,955.87, plus reasonable attorney’s fees.

9. Within ten (10) days of the date that judgment enters, the defendant shall file with this Court a Motion for Counsel Fees, Costs and Expenses in accordance with the procedure prescribed in Yorke Mgmt. v. Castro, 406 Mass. 17, 20 (1989). Counsel shall also submit an affidavit and mark the matter for a hearing. After hearing, the Court shall enter final judgment including an award of reasonable attorney’s fees and costs nunc pro tunc to the date of

this decision.

————————-

[1] The Court notes that the total rent due for 2005 was $8,220.00, calculated as follows: $685.00 x 12 = $8,220.00.

[2] In light of the Court’s dismissal of the complaint in this action, the Court finds that the defendant’s affirmative defense to possession under G.L. c. 239, s.2A is moot.

[3] The defendant introduced her gas bills for the period between June 7, 2004 and December 8, 2006 into evidence at trial. The Court finds that the defendant used 266.8 units of gas between June 7, 2004 and January 3, 2005 and 262.5 units of gas from May 16, 2005 to January 3, 2006. Since the defendant testified that she had no heat between April 16, 2004 and December 19, 2004 and no hot water between April 16, 2004 and February 4, 2005, the Court finds that it is a reasonable inference that the defendant’s gas usage would have stopped between April 16, 2004 and December 19, 2004. Since the defendant’s usage of gas remained constant during comparable months of 2004 and 2005, the Court does not credit the defendant’s testimony that there was no heat in the premises for a ten (10) month period in 2004.

[4] The Court finds that there was no testimony at trial as to the exact date in March 2006 on which the plaintiff received the defendant’s written notice that she was withholding her rent. Accordingly, the Court will use March 1, 2006 as the date on which the defendant notified the plaintiff that she was withholding her rent for the purpose of calculating damages under G.L. c. 239, s.8A for those conditions listed in the March 2006 notice.

[5] The applicable per diem rental amounts are calculated as follows: (1) from September 2001 through November 2004, ($650.00 x 12 = $7,800.00 ? 365 = $21.37); (2) for the month of December 2004, ($660.00 x 12 = $7,920.00 ? 365 = $21.70); (3) from January 2005 through December 2005, ($685.00 x 12 = $8,220.00 ? 365 = $22.52); and (4) from January 2006 through December 2006, ($710.00 x 12 = $8,520.00 ? 365 = $23.34).

[6] The total award of damages for breach of the implied warranty of habitability with respect to these conditions is $4,475.53.

[7] ‘Clear and convincing’ evidence is that which ‘induces in the mind of the trier a reasonable belief that the facts 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).

[8] The total of the rent abatements for these conditions is $4,475.53.

[9] There are 2,023 days between August 23, 2001 and March 7, 2007.

End Of Decision

HOUSING COURT

Maureen Egan/John Egan v. Chris Hutson and Rachel Hutson

SOUTHEASTERN DIVISION

Docket # 06-SP-03552

Parties: Maureen Egan/John Egan v. Chris Hutson and Rachel Hutson

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: January 26, 2007

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

This is a summary process action in which the plaintiffs sought to recover possession of the premises from the defendants and damages for unpaid rent. The defendants filed a written answer and counterclaims. The defendant Rachel Hutson did not appear for trial and was defaulted and non-suited as to all counterclaim issues. The defendant Chris Hutson appeared for trial and testified.

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

The defendants, Chris Hutson and Rachel Hutson, resided at 51 Plymouth Street, 1st flr., New Bedford, MA (“the premises”) as tenants under a written lease from July 11, 2004 through December 10, 2006. The plaintiffs, Maureen Egan and John Egan, are the owners of the premises and were the defendants’ landlords. The Court finds that the issue of possession is moot.

The plaintiff John Egan testified that the rent for the premises was $1,250.00 per month and was due on the eleventh day of each month. He testified that the defendants repeatedly made partial rent payments throughout their tenancy, that the plaintiffs applied the defendants’ security deposit to rental arrearages in October 2006 at the defendant Rachel Hutson’s request, and that the defendants currently owe the plaintiffs a total of $3,865.00 in unpaid rent. The defendant Chris Hutson testified that the defendants have paid their rent through October 2006, that the plaintiffs applied their security deposit without their permission, and that they only owe the plaintiffs approximately $750.00 in unpaid rent. The Court credits the testimony of the plaintiff John Egan on these issues. Applying the defendants’ rental payments to the most aged balances of the arrears, the Court finds that the defendants have failed to pay the plaintiffs any rent for the months of September 2006 through November 2006, owe a balance of $115.00 for the month of August 2006 and currently owe the plaintiffs a total of $3,865.00 in unpaid rent.

The plaintiff John Egan testified that the defendants have repeatedly paid their rent late, and that the lease between the parties authorizes him to collect a late fee of $150.00. He testified that the defendants owe a late fee for the months of May 2005, July 2005, August 2005, and the months of October 2005 through December 2006, a total of $2,700.00. The Court finds that Paragraph 21 of the lease between the parties provides: “In the event that any payment required to be paid by Tenant hereunder is not made within Five (5) days of when due without any notification as to why or when rent can be expected, Tenant shall pay to Landlord, in addition to such payment or other charges due hereunder, a ‘late fee’ in the amount of: One Hundred Fifty DOLLARS ($150.00)” (emphasis in original). G.L. c. 186, s.15B(1)(c) provides that “(n)o lease or other rental agreement shall impose any interest or penalty for failure to pay rent until thirty days after such rent shall have been due.” Accordingly, the Court finds that the plaintiffs are not entitled to recover any of the late fees they had assessed against the defendants. Goncalves v. Mello and Leduc, No. 05-SP-02837 (Chaplin, J., June 23, 2005).

The plaintiff John Egan testified that, on November 17, 2006, he served each of the defendants with a 14 Day Notice To Quit for Non-Payment of Rent by serving each of them in hand. The defendant Chris Hutson testified that the defendants never received the November 17, 2006 Notice To Quit. The Court credits the testimony

of the plaintiff John Egan on these issues, and finds that, on November 17, 2006, the plaintiffs served the defendants with a legally sufficient 14 Day Notice To Quit For Non Payment of Rent.

The defendants filed a written answer and counterclaims based on conditions in the premises and violations of G.L. c. 186, s.14 and G.L. c. 186, s.15B.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant Chris Hutson testified that, on December 6, 2006, the interior door to the dining room of the premises was barricaded shut from the outside by means of a rope, and the hot water was turned off intentionally by the landlord. He testified that he believes it was the landlord because no one else has access to the basement. He testified that the New Bedford Police and Fire Departments removed the rope shutting the door. He testified that he also called the New Bedford Board of Health on that day. The plaintiff testified that, on December 6, 2006, he went to Newton-Wellesley Hospital for a medical procedure on his back, and that, when he left the premises at 6:40 a.m., the defendants had heat and hot water, and there was no rope barricading the door. He testified that, when he returned to the premises, he found that the hot water and heat had been turned to vacation mode, the water had been drained from the tank, and that there were “lots of calls” from the police regarding the rope and a call from the Board of Health Inspector. The plaintiff testified that he did not turn the heat and hot water to vacation mode, and testified that he did not barricade the door with a rope. The Court credits the testimony of the plaintiff John Egan on these issues, and finds that there was no credible evidence at trial that the plaintiffs were responsible for the turning of the heat and hot water to vacation mode, or for the presence of the rope on the door of the premises. Accordingly, the Court finds that the defendant Chris Hutson is not entitled to damages under G.L. c, 239, s.8A based on these conditions.

The Court finds that the City of New Bedford Department of Inspectional Services Division of Minimum Housing Standards (“Minimum Housing”) inspected the premises on December 6, 2006 and found the following conditions: “Owner shall repair or replace defective outlet in the living room (east side) of the 1st flr. Apartment. Owner shall replace missing door knob to the front interior exit door of the 1st flr. Apartment. No owner or occupant shall cause any service to be shut off from any occupied dwelling.

Owner must restore the hot water services for the use of the 1st flr. apartment unit. Owner at all times must provide a second means of egress for all occupied dwelling units. Owner must not tie a rope onto the 1st flr. interior exit door trapping tenants in their apartment. Rope was removed by the N.B. Police Dept.” The plaintiff John Egan testified that the defendants never notified him of any defective conditions in the premises until after he served them with the Summary Process Summons and Complaint in this action on December 4, 2006. He also testified that the defective outlet in the living room and the missing door knob to the front interior exit door of the premises were repaired by December 20, 2006. The Court credits the testimony of the plaintiff John Egan on these issues, and finds that there was no credible evidence at trial that either of these conditions was serious, or that they endangered the health or safety of the defendant Chris Hutson, or that they diminished the fair rental value of the premises. Accordingly, the Court finds that the existence of these conditions did not constitute a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that the defendant Chris Hutson is not entitled to damages under G.L. c. 239, s.8A based on these conditions.

In their written answer and counterclaims, the defendants contend that the plaintiffs violated G.L. c. 186, s.14.

G.L. c. 186, s.14 provides, in pertinent part: “Any lessor or landlord of any building or part thereof occupied for dwelling purposes…who directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant…shall…be liable for actual and consequential damages, or three month’s rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee, all of which may be applied in setoff to or in recoupment against any claim for rent owed or owing…”

The defendant Chris Hutson testified that, on December 10, 2006, he called the New Bedford Police Department in order to get access to the basement to move the defendants’ washer and dryer, a fish tank, Christmas tree and a box of personal effects out of the building. He testified that the defendants’ possessions had been removed by the landlord. The plaintiff John Egan testified that the New Bedford Police officer who responded to the defendants’ complaint asked him if he was holding anything in the basement, and he replied that he was not. He testified that he allowed the police officer to look through the basement and that the defendants did not have any personal possessions in the basement. The Court credits the testimony of the plaintiff John Egan on these issues,

and finds that there was no credible evidence at trial that the plaintiffs engaged in any conduct which constituted a serious interference with the defendant Chris Hutson’s quiet enjoyment of the premises. Accordingly, the Court finds that the defendant Chris Hutson is not entitled to damages under G.L. c. 186, s.14 based on this claim.

The defendant Chris Hutson testified that the plaintiffs entered the defendants’ apartment on December 8, 2006 when the defendants were not home, and that, because of this incident, the defendants changed the locks. The plaintiff John Egan testified he replaced the locks on the defendants’ apartment on the day they were moving out because none of his keys, which had worked the day before, would work any more. The Court credits the testimony of the plaintiff John Egan on this issue, and finds that there was no credible evidence at trial that the plaintiffs’ actions in replacing the locks with locks to which the plaintiffs had keys constitutes a serious interference with the defendants’ quiet enjoyment of the premises. Accordingly, the Court finds that the defendant Chris Hutson is not entitled to damages under G.L. c. 186, s.14 based on this claim.

The defendant Chris Hutson testified that the plaintiffs harassed the defendants by sending a series of e-mails which were hostile in tone. The Court finds that the defendants and the plaintiffs exchanged a series of acrimonious e-mails, and that the tone of the defendants’ e-mails was as acrimonious as the tone of the plaintiffs’ e-mails. The Court finds that the exchange of acrimonious e-mails between the parties did not constitute a serious interference with the defendant Chris Hutson’s quiet enjoyment of the premises. Accordingly, the Court finds that the defendant Chris Hutson is not entitled to damages under G.L. c. 186, s.14 based on this claim.

In their written answer and counterclaims, the defendants contend that the plaintiffs violated G.L. c. 186, s.15B (security deposit).

G.L. c. 186, s.15B(3)(a) provides, in pertinent part: “Any security deposit received by such lessor shall be held in a separate, interest-bearing account in a bank, located within the commonwealth under such terms as will place such deposit beyond the claim of creditors of the lessor…A receipt shall be given to the tenant within thirty days after such deposit is received by the lessor which receipt shall indicate the name and location of the bank in which the security deposit has been deposited and the amount and account number of said deposit. Failure to comply with this paragraph shall entitle the tenant to immediate return of the security deposit.”

G.L. c. 186, s.15B(6)(a) provides that the landlord forfeits his right to retain the security deposit for any reason if he “fails to deposit such funds in an account as required by subsection (3).”

G.L. c. 186, s.15B(7) provides: “If the lessor or his agent fails to comply with clauses (a), (d), or (e) of subsection (6), the tenant shall be awarded damages in an amount equal to three times the amount of such security deposit or balance thereof to which the tenant is entitled plus interest at the rate of five per cent from the date which such payment becomes due, together with court costs and reasonable attorney’s fees.”

The defendant Chris Hutson testified that the plaintiffs did not give them a receipt for their security deposit, did not deposit it in an escrow account, and applied their security deposit to the rent for October 2006 without their permission. The plaintiff John Egan testified that the defendants gave the plaintiffs a security deposit in the amount of $1,250.00, that the plaintiffs gave the defendants a receipt and placed the security deposit into an interest-bearing escrow account at Sovereign Bank. He also testified that the plaintiffs applied the security deposit, plus accrued interest, in the total amount of $1,294.00 to the defendants’ rental arrearages in October 2006 at the express requests of the defendant Rachel Hutson, who “begged” the plaintiff Maureen Egan to use the security deposit for back rent. The Court credits the testimony of the plaintiff John Egan on these issues, and finds that there was no credible evidence at trial that the plaintiffs violated any of the provisions of G.L. c. 186, s.s.15B(2)(b), (3)(a), 6(a) or (7). Accordingly, the Court finds that the defendant Chris Hutson is not entitled to damages under G.L. c. 186, s.15B based on these claims.

ORDER FOR JUDGMENT

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

1. Judgment enter for the plaintiffs against the defendant Chris Hutson for damages for unpaid rent in the amount of $3,865.00, plus costs.

2. Judgment enter for the plaintiffs as to defendant Chris Hutson’s counterclaims.

3. Execution issue ten (10) days after the date that judgment enters.

End Of Decision

HOUSING COURT

Thomas and Maria Ferreira v. David Pearson and Amber Biello

SOUTHEASTERN DIVISION

Docket # 07-SP-02651

Parties: Thomas and Maria Ferreira v. David Pearson and Amber Biello

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: May 15, 2007

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

This is a summary process action in which the plaintiffs seek to recover possession of the premises from the defendants and damages for unpaid rent. The defendants filed a written answer 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 defendants, David Pearson and Amber Biello, have resided at 160 David Street, 2nd Floor, New Bedford, MA (“the premises”) as tenants at will since October 1, 2006. The plaintiffs, Thomas and Maria Ferreira, are the owners of the premises and are the defendants’ landlords.

The plaintiff Thomas Ferreira testified that the rent for the premises is $480.00 per month and is due on the first day of each month. He testified that the defendants have failed to pay the plaintiffs any rent for the months of January 2007 through April 2007, and currently owe the plaintiffs a total of $1,920.00 in unpaid rent. The defendant David Pearson testified that the rent is $120.00 per week, and is due each Friday for the week just ended. The defendant David Pearson testified that the defendants owe the plaintiff a total of $1,920.00 in unpaid rent. The Court credits the testimony of the plaintiff Thomas Ferreira on these issues, and finds that the rent for the premises is $480.00 per month and is due on the first day of each month. The Court finds that the defendants have failed to pay the plaintiffs any rent for the months of January 2007 through April 2007, and currently owe the plaintiffs a total of $1,920.00 in unpaid rent.

The Court finds that, on January 24, 2007, the plaintiffs served the defendants with a 30 Day Notice of Termination, terminating their tenancy effective March 1, 2007. The defendant David Pearson testified that, since rent is payable on a weekly basis every Friday, the January 24, 2007 Notice of Termination was not legally sufficient to terminate the defendants’ tenancy, because March 1, 2007 was not a rent day. Since the Court finds that rent is payable monthly and that rent is due on the first day of each month, the Court finds that the January 24, 2007 Notice of Termination is legally sufficient to terminate the defendants’ tenancy.

The defendants filed a written answer and counterclaims based on breach of the implied warranty of habitability, violations of G.L. c. 186, s.14, G.L. c. 239, s.2A, G.L. c. 186, s.18, G.L. c. 151B, and commingling of utilities.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The Court finds that, on January 16, 2007, the defendants

notified the plaintiffs in writing that they were withholding their rent “of $480 a month” until the plaintiffs repaired the following conditions in the premises: “1. The kitchen Sink leaks into the bottom cabinet and there is mold and mildew…You know this as you came to try to fix it. 2. The kitchen sink leaks onto the wooden floor which has cracks and is not water proof. 3. The bath tub is sitting on cracked tiles, the drain leaks onto the floor causing mold and mildew to grow into the cracks…4. The cellar stairway has no railing. 5. My electrical box in the cellar is wired with clothe (sic) wire. 6. Cockroaches have been seen in the kitchen area and the whole apartment is infested with fleas. You know this as Amber told Mrs. Ferreira months ago but she did nothing to correct it…There are also many fleas in the damp cellar. 7. There appears to be rat or mouse infestation in cellar as we have seen nuts that are chewed up…

“The violations below also need to be fixed: 1. Presence of lead paint accessible to a child under six years old-there is flaky peeling paint all over the inside and outside of the apartment which is more than likely lead paint because this house was built before 1975. The paint on all of the doors, windows, window cells (sic) are flaky and peeling and more than likely lead. 2. The foundation has holes all around the house, with dangerous mold on the outside and water that leaks into the cellar, again dangerous mold has grown and the floor is wet which is a condition that may materially endanger us from electric shock by turning on cellar lights and other electrical appliances in the cellar. You know this as I left the cellar door open on a dry day trying to get it to dry out and you told me you did not want the cellar door left open…My material possessions in my cellar bin are also damp and moldy. 2. The gas heater in living room has dust coming from it blowing into our living room. 3. By law you must provide a carbon monoxide detector in this apartment but you have failed to do so. 4. By Law you must provide smoke detectors outside every bedroom and one outside the kitchen which you have failed to do.

“Kitchen. 1. There is improper drainage in the kitchen sink…2. The Kitchen floor is wooden, not smooth, has cracks and does not have a water-resistant finish. 3. There is no room for a refrigerator in the kitchen. The refrigerator is in our living room. 4. There is only one wall outlet in the kitchen. By law there must be two.

“Bathroom. 1. The door to the bathroom does not close neither is there a working doorknob. 2. The floors and walls of the bathroom must be constructed of nonabsorbent, easily cleanable material, and reach a height of four feet from the floor. See mention of the floor and the walls of the bathroom above, they are not nonabsorbent. As required by law. 3. Leaks-See above about leaks in sink and tub.

“Heat. 1. By law, the landlord must pay for heat, especially if the heat comes from a stationary gas heater in one room and you must pay for the electricity because we do not have a written agreement that we, the tenants must pay for heat or electricity. We ask that you change the gas heat, gas hot water and electric bills over to your name as require (sic) by the law at once. 2. By Law, the landlord must provide facilities to heat every room,

including the bathroom from September 16 to June 14 to at least

“1. 68 degrees Fahrenheit between 7 a.m. and 11 p.m.

“2. 64 degrees Fahrenheit between 11 p.m. and 7 a.m.

“Since the only heater you provide is a gas space heater in the living room, we must either turn our heat up very, very high so that all the rooms reach these temperatures. It takes hours and most of the time the above Fahrenheit’s are not reached in the bedrooms or bathroom yet the living room is too hot to be comfortable in. Therefore we have to use electric heaters in our one year old son’s bedroom and we use many blankets for ourselves in our bedroom. 3. Again, the law requires that the landlord must provide and pay for heat unless there is a written agreement requiring tenant to pay for heat. As you know, we do not have a written agreement therefore we demand that you put the heat in your name as soon as possible. 4. Most of the windows are leaky allowing cold air in, they are hard to open and slam shut when if (sic) we are able to open them as they have no counter weights in them to hold them up. Most do not have locks on them as required by law.

“Electricity. 1. The law requires that there be no commingling of electricity in any apartment. For a 3 apartment building it is proper for the tenant to pay for the light outside their landing but we are also paying for at least one light in the cellar and possible (sic) one of the other apartments. This condition also requires that you put our electric bill in your name immediately. 2. Again, unless there is a written agreement between the landlord and tenant, the landlord must pay for the electricity. We ask that you change our electric account into your name immediately.

“Safety 1. The front door does not have a lock that is accessible with a key from the outside. All there is, is a lock that is hard to unlock from the inside which is a safety hazard if my apartment is on fire and I or the fire department can not access it from the outside. 2. There are no fire extinguishers properly located as required by the local fire chief. Please call the Fire Chief and see what your requirements are. 3. Most of the windows in our apartment do not have operable locks on them. 4. In the cellar, there is a filthy toilet ring hanging from the ceiling where water leaks from and it is wet around the pipes. 5. You must maintain the property in good repair and in everyway (sic) fit for the use intended:

“1. The foundation is not weather tight, insect proof or rodent proof as noted above.

“2. The floors are not free of holes, cracks, loose tiles or other defects as noted above.

“3. The interior walls are not free of holes, cracks, loose or rotting boards and there is mold in many areas as noted above.

“4. The exterior walls are not free from holes, cracks, rotting boards or other hazardous conditions as noted above.

“5. Ceilings are not free of holes, cracks, or other hazardous conditions as noted above.

“6. The doors and windows are not weather tight as noted above.

“Rats and Roaches 1. Rats, roaches and fleas have been seen in the building as noted above.

“Garbage. 1. You have failed to provide watertight garbage cans with tightly fitting covers ‘to contain the accumulation before final collection’ as required by law. 2. There is a garbage bin that someone has stored materials in and no one can put their own personally bought trash/garbage barrels in. We keep our trash/garbage in barrels we bought out on our porch. 3. The other tenants put there (sic) barrels in the yard where we have seen raccoons, possums, foxes and stray cats (or the cats the first floor neighbor owns but keeps outside) pulling the garbage all over the yard…

“Lead Paint-By Law 1. No lead paint may be used inside apartments. 2. Existing lead paint must be removed or covered by the landlord if you have a child under the age of six (Our son is one years [sic] old) this must be done up to a height of five feet from the floor level. 3. Repainting with non-lead paint is not allowed. 4. All lead remove (sic) must be done by a person certified to remove and properly clean up lead.” The plaintiffs, through counsel, stipulated that they received this letter.

The defendant David Pearson testified that, in addition to sending the January 16, 2007 letter, the defendants made oral complaints to the plaintiffs at unspecified times during their tenancy. He testified that they informed the plaintiffs that there were cracked tiles under the bathtub, the sink backed up, there was lead paint “everywhere,” there were cracked tiles in the ceiling, there was mold and mildew, and fleas and mice. The Court credits this testimony, but finds that there was no evidence at trial that the defendants notified the plaintiffs of any defective conditions in the premises until after they were in arrears in their rent. Accordingly, the Court finds that the defendants are not entitled to a defense to possession under G.L. c. 239, s.8A based on any of these conditions.

The Court finds that there was no evidence at trial that any of the paint in the premises is lead-based paint. Accordingly, the Court finds that the defendants are not entitled to damages under G.L. c. 239, s.8A based on this condition.

The Court finds that the existence of the cracked tiles under the bathtub, the defective sink, the cracked tiles in the ceiling in an unspecified location in the premises, the presence of mold and mildew in unspecified locations in the premises, and the presence of fleas and mice in unspecified locations in the premises are conditions which, in the aggregate, constitute a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). Accordingly, the Court finds that the defendants are entitled to damages under G.L. c. 239, s.8A based on these conditions for the period between January 16, 20071 and April 30, 2007.

G.L. c. 239, s.2A provides, in pertinent part: “It shall be a defense to an action for summary process that such action or the preceding action of terminating the tenant’s tenancy, was taken against the tenant for the tenant’s act of commencing, proceeding with, or obtaining relief in any judicial or administrative action the purpose of which action was to obtain damages under or otherwise enforce, any federal, state or local law, regulation, by-law, or ordinance, which has as its objective the regulation of residential premises, or…reporting a violation or suspected violation of law as provided in section eighteen of chapter one hundred and eighty-six….The commencement of such 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 commenced, proceeded with or obtained relief in such action, (or)..made such report..shall create a rebuttable presumption that such summary process is a reprisal against the tenant for engaging in such activities…Such presumption may be rebutted only by clear and convincing evidence[3] that such action was not a reprisal against the tenant, and that the plaintiff 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, even if the tenant had not…engaged in such activity.”

engaging in such activities. Such presumption shall be rebutted only by clear and convincing evidence that such person’s action was not a reprisal against the tenant and that such person 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 tenant engaging in, or the belief that tenants had engaged in, activities protected under this section.”

The defendant David Pearson testified that he believes the plaintiffs brought this eviction action in retaliation against the defendants for notifying the plaintiffs on January 16, 2007 that they were withholding their rent. The plaintiff Thomas Ferreira testified that the plaintiffs initially served the defendants with a 30 Day Notice To Quit on December 28, 2006, and that they served the second 30 Day Notice of Termination on January 24, 2007 because their attorney had informed them that the December 28, 2006 Notice To Quit was not legally sufficient to terminate the defendants’ tenancy. The Court credits the parties’ testimony on these issues.

The Court finds that, on January 24, 2007, the plaintiffs served the defendants with a legally sufficient 30 Day Notice of Termination. The Court finds that the defendants engaged in statutorily protected activity within six (6) months of the service of the January 24, 2007 Notice of Termination and accordingly are entitled to the statutory presumption of retaliation. The Court finds, on the facts of this case, that the plaintiffs have established with clear and convincing evidence that they did not retaliate against the defendants. The Court finds that the plaintiffs’ sole reason for serving the January 24, 2007 Notice of Termination was to cure the legally insufficient Notice To Quit dated December 28, 2006, which also sought possession of the premises, and which was served prior to the defendants’ January 16, 2007 letter notifying the plaintiffs that they were withholding their rent. The Court finds that the plaintiffs would have in fact taken this action, in the same manner and at the same time the action was taken, even if the defendants had not sent the plaintiffs the January 16, 2007 letter. Accordingly, the Court finds that the defendants are not entitled to a defense to possession under G.L. c. 239, s.2A or to damages under G.L. c. 186, s.18.

The Court finds that there was no evidence at trial with respect to any of the defendants’ remaining counterclaims. Accordingly, the Court finds that the defendants are not entitled to a defense to possession or to damages based on any of these claims.

ORDER FOR JUDGMENT

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

1. Judgment enter for the plaintiffs for possession of the premises and damages for unpaid rent in the amount of $1,920.00, plus costs in the amount of $200.00, a total of $2,120.00.

2. Judgment enter for the defendants on their counterclaim for breach of the implied warranty of habitability in the amount of

$414.75.

3. Judgment enter for the plaintiffs on the defendants’ remaining counterclaims.

4. The foregoing orders for judgment paragraphs 1 through 3 result in a net judgment for the plaintiffs for damages in the amount of $1,505.25, plus costs in the amount of $200.00, a total of $1,705.25.

5. Execution issue for the plaintiffs for possession of the premises and damages for unpaid rent in the amount of $1,505.25, plus costs in the amount of $200.00, a total of $1,705.25, ten (10) days after the date that judgment enters.

End Of Decision

HOUSING COURT

Merrill R. Harvey PLAINTIFF v. Vadine Preval, DEFENDANT

SOUTHEASTERN DIVISION

Docket # 07-SP-00213

Parties: Merrill R. Harvey PLAINTIFF v. Vadine Preval, DEFENDANT

Judge: ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: April 2, 2007

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

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

The defendant, Vadine Preval, resided at 46 Hanson Street, Fall River, MA (‘the premises’) as a tenant at will from the inception of her tenancy to February 2, 2007. The plaintiff, Merrill R. Harvey, is the owner of the premises and was the defendant’s landlord. The rent for the premises was $1,450.00 per month and was due on the first day of each month.

The plaintiff testified that, at the end of October 2006 or the beginning of November 2006, he and the defendant agreed that she would occupy the premises, and that she would pay him a first and last month’s rent in the total amount of $2,900.00 and a security deposit of $200.00. He testified that the parties agreed that the defendant would be responsible for the payment of oil and electricity. He testified that he and the defendant agreed that she could begin moving her possessions into the premises in November 2006, but that he did not give her permission to occupy the premises until December 2006. He testified that the defendant moved into the premises at some unspecified time in November 2006

without his permission. The defendant testified that she moved into the premises in the first week of December 2006, and that she was responsible for the payment of oil and electricity. The Court credits the parties’ testimony on the issue of payment for oil and electricity, and credits the defendant’s testimony on the date of the inception of her tenancy. The Court finds that the defendant’s tenancy began in the first week of December 2006, and finds that the defendant was responsible for the payment for oil and electricity throughout her tenancy.

The plaintiff testified that, on November 3, 2006, the defendant gave him a check in the amount of $1,100.00, which was returned for insufficient funds. He testified that the defendant gave him $1,000.00 in cash one or two weeks later to replace the November 3, 2006 check. He testified that, on December 23, 2006, the defendant gave him a check in the amount of $1,100.00, drawn on the account of her daughter, Samantha Preval. He testified that this check was also returned for insufficient funds, and has not been replaced. He testified that the defendant paid him an additional $1,000.00 in rent at an unspecified time during her tenancy, and has only paid him a total of $2,000.00 in rent during her tenancy. The defendant initially testified that she paid the plaintiff a total of $2,100.00 in rent in December 2006, and subsequently testified that she paid $1,450.00 in rent in December 2006, and had a verbal agreement with the plaintiff to pay no rent until February 2007 because there was no bathroom door, and he would finish the rest of the work in January 2007. She testified that she did not pay the plaintiff any rent in January 2007 because there was no stove in the premises at the inception of her tenancy and the plaintiff agreed to give her a credit on her rent to reimburse her for the cost of the stove.[1] The plaintiff testified that he told the defendant he could not afford a new stove, and offered to buy a used stove for the premises, but that the defendant wanted a new stove. He testified that he did not agree that the defendant could have a credit on her rent to buy a new stove. The Court credits the testimony of the plaintiff on these issues, and finds that there was no credible evidence at trial that the plaintiff gave the defendant a credit on her rent for January 2007 to buy a new stove. The Court finds that there was no credible evidence at trial that the parties agreed that the defendant did not have to pay rent until February 2007. Accordingly, the Court finds that the defendant has paid the plaintiff a total of $2,000.00 in rent during her tenancy. Applying the defendant’s irregular payments to the most aged balance of the arrears for the months of December 2006 and January 2007, the Court finds that the defendant has failed to pay the plaintiff $900.00 in unpaid rent for January 2007.

The defendant testified that she has not paid the plaintiff any rent for the months of February 2007 and March 2007 because, on February 2, 2007, a pipe in the premises burst, causing water to accumulate in the basement. She testified that the plaintiff shut off the water, gas and electricity on February 2, 2007, has changed the locks and has not turned the utilities on since February 2, 2007. She testified that she has not been able to occupy the premises since February 2, 2007, ‘so why pay rent?’

In her written answer and counterclaims, the defendant contends that she has been constructively evicted from the premises.

A constructive eviction consists of ”some act of a permanent character, done by the landlord with the intention and effect of depriving the tenant of the enjoyment of the demised premises or some part of it, to which he yields, abandoning the possession within a reasonable time.’ (citations omitted). The intent required is not an actual intent, but ‘may be inferred from the character of…[the landlord’s] acts if their natural and probable consequence is such as to deprive the tenant of the use and enjoyment of the premises let.’ Tracy v. Long, 295 Mass. 201, 205. In applying this definition with reference to the intent of the landlord ‘the law assumes that he intends the natural and probable consequences of his acts.’ (citations omitted)…The defence of eviction, actual or constructive, is based upon a failure of consideration, or a breach, whether of commission or omission, of a covenant of the lease so material as to excuse the tenant from performing. (citations omitted)’.’ Westland Housing Corp. v. Scott, 312 Mass. 375, 381-82 (1942). ‘Eviction as a defence to an action for rent is based upon the principle that the consideration for the rent, that is, the use and enjoyment of the premises demised, has failed, and that therefore the landlord cannot recover rent because he has failed to perform his part of the agreement.’ Id. at 380.

The defendant testified that, on December 5, 2006, her daughter, Samantha Preval, gave Wilkinson Oil Co. a check in the amount of $234.00 for 100 gallons of oil, and that this check was returned for insufficient funds. She testified that, on December 30, 2006, she called Wilkinson Oil Co. to say she needed oil for January 2007, and would pay for 100 gallons of oil in cash, and replace the $234.00 check. She testified that she does not know whether there were any oil deliveries after December 30, 2006 ‘because I was in and out of the house.’

The defendant testified that she does not know why the pipes burst on February 2, 2007 because she was not present. She testified that she did not occupy the premises for a ten (10) day period because her aunt died in New Jersey. She testified that, for the time that she would be away, she told her daughter to keep the heat at 60 degrees so the pipes would not freeze. She testified that, while she was away, her daughter and grandchild stayed at her grandchild’s father’s house, and the rest of her family stayed with a cousin because they did not have a car. She testified that, before she left, she checked the oil level in the tank, and that her cousin checked on the mail while she was away. She testified that she was forced out of the premises on February [2], 2007 by the burst pipes, the flooding and the lack of utilities, and has not occupied the premises since that date.

Samantha Preval testified that, on February 2, 2007, she came into the premises and saw water coming down. She testified that she telephoned the plaintiff, and that he yelled at her and hung up. She testified that she called the Fall River Fire Department, went upstairs to the bathroom, and observed that the bathroom floor and the mats were wet. She testified that the water went from the

bathroom down to the basement, that there were no other broken pipes in the premises, and that the temperature in the house was in the 60’s.

The plaintiff testified that, on February 2, 2007, he received a telephone call from the defendant’s daughter, Samantha Preval, informing him that pipes in the premises had burst, causing flooding in the basement. He testified that he hung up the telephone and went to the premises. He testified that he observed three (3) feet of water in the basement, that the Fall River Fire Department shut off the water, the gas and the electricity, and that he locked the premises because it was uninhabitable. He testified that, since February 2, 2007, he has not been able to afford to repair the damage in the premises caused by the burst pipes and the flooding.

The Court credits the parties’ testimony on these issues, and finds that the defendant was constructively evicted from the premises on February 2, 2007 by the plaintiff’s actions in failing to make the repairs required to make the premises habitable after the flooding[2]. Accordingly, the Court finds that the defendant owes the plaintiff a balance of $95.34[3] in unpaid rent for the month of February 2007, and finds that the defendant’s obligation to pay rent to the plaintiff ended on February 2, 2007.

The Court finds that the defendant has failed to pay the plaintiff $900.00 in rent for January 2007, and has failed to pay the plaintiff $95.34 in rent for February 2007, and currently owes the plaintiff a total of $995.34 in unpaid rent.

The Court finds that, on January 19, 2007, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Quit and Vacate.

The defendant filed a written answer and counterclaims based on breach of the implied warranty of habitability, and violations of G.L. c. 186, s.14 and G.L. c. 93A.

The defendant testified that, at the inception of her tenancy, there was no stove in the premises, the bathroom did not have a door, the bathroom floor ‘was not done,’ there was no countertop in the kitchen, one (1) bedroom did not have a door, and the electric outlets did not have covers. She also testified that there was a leak in the bathtub, which went down through the kitchen to the basement. She testified that, in order to use the kitchen countertop, she put a cutting board on it. She testified that she

informed the plaintiff of these conditions, and that he agreed to make the repairs, but did not do so. The Court credits this testimony.

Samantha Preval, the defendant’s daughter, testified that she moved into the premises in mid-December 2006, and that there was a leak in the bathtub that went through the kitchen closet to the washing machine in the basement. She testified that, on December 20, 2006, she notified the plaintiff of the leak. The Court credits this testimony.

The plaintiff testified that the bathroom floor was not defective, but was a hardwood floor that had been painted, and that the defendant told him not to repaint it. He testified that there was nothing wrong with the bathroom floor. The Court credits this testimony.

The plaintiff testified that the countertop had been installed in the kitchen, that the contractor had measured the countertop to determine how much Formica was needed to finish the countertop, and that he purchased the Formica after the contractor had taken the measurements. He testified that, when the contractor went to the premises to install the Formica, the defendant was not home, that she did not return any of his telephone calls requesting access to install the Formica, and that, as a result, the Formica was never installed. The Court credits this testimony.

The plaintiff testified that all of the electric outlets in the premises were covered at the inception of the defendant’s tenancy, and that the defendant did not notify him that any of the covers had come off. The Court credits this testimony.

The plaintiff testified that, approximately a month into her tenancy, the defendant informed him that there were holes in the bathtub. He testified that there were two (2) ‘little holes’ approximately three inches up the side of the bathtub, and that, when the bathtub was filled, there was a leak through the holes, but that there was no leaking when the shower was used. The Court credits this testimony.

The Court finds that the defendant denied the plaintiff access to the premises to install the Formica on the kitchen countertop. Accordingly, the defendant is not entitled to damages under G.L. c. 239, s.8A based on this condition.

The Court finds that there was no credible evidence at trial that the bathroom floor was defective. Accordingly, the defendant is not entitled to damages under G.L. c. 239, s.8A based on this condition.

The Court finds that there was no evidence at trial that the plaintiff knew or should have known that the electric outlet covers were defective. Accordingly, the defendant is not entitled to damages under G.L. c. 239, s.8A based on this condition.

The Court finds that there was no evidence at trial that the lack of a door on one (1) bedroom in the premises was serious, or that this condition endangered the health or safety of the defendant, or that this condition diminished the fair rental value of the premises. Accordingly, the Court finds that the existence of this condition did not constitute a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that the

defendant is not entitled to damages under G.L. c. 239, s.8A based on this condition.

The Court finds that the lack of a stove in the premises, the lack of a door in the bathroom of the premises, and the leak in the bathtub are conditions which constitute material breaches of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). The Court finds that the defendant is entitled to damages under G.L. c. 239, s.8A based on these conditions. However, the Court finds that there was no evidence at trial as to when a stove was installed in the premises, and, therefore, the specific time period to use in computing damages. Accordingly, the Court makes no finding as to the amount of damages which otherwise would have been due the defendant under G.L. c. 239, s.8A based on this condition.

G.L. c. 186, s.14 provides, in pertinent part: ‘Any lessor or landlord of any building or part thereof occupied for dwelling purposes…who directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant…shall…be liable for actual and consequential damages, or three month’s rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee, all of which may be applied in setoff to or in recoupment against any claim for rent owed or owing…’

The Court finds that there was no evidence at trial that the plaintiff is subject to the provisions of G.L. c. 93A.

Accordingly, the Court finds that the defendant is not entitled to damages under G.L. c. 93A.

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 enter for the plaintiff for possession of the premises and damages for unpaid rent in the amount of $995.34, plus costs in the amount of $165.00, a total of $1,160.34.

2. Judgment enter for the defendant on her counterclaim for breach of the implied warranty of habitability in the amount of $931.67, setoff against the balance due the plaintiff as calculated under G.L. c. 239, s.8A.

3. Judgment enter for the plaintiff on the defendant’s remaining counterclaims.

4. The foregoing orders for judgment paragraphs 1 through 3 result in a net judgment for the plaintiff for damages in the amount of $228.67.

5. Execution issue ten (10) days after the date that judgment enters.

SOUTHEASTERN DIVISION

07-SP-00213

Merrill R. Harvey, Plaintiff vs. Vadine Preval, Defendant

JUDGMENT

This action came on for trial/hearing before the Court, Chaplin, J. presiding, and the issues having been duly tried/heard and findings having been duly rendered, it is ORDERED and ADJUDGED under Rule 10 of the Uniform Rules of Summary Process that:

Judgment for the Plaintiff for possession, unpaid rent of $995.34 plus costs of $165.00, for a total of $1,160.34.

Judgment for the Defendant for breach of the implied warranty of habitability in the sum of $931.67, resulting in a net judgment to Plaintiff of $228.67 as is provided in paragraph 4 of the Court’s Order for Judgment.

Judgment for the Plaintiff as to the Defendant’s remaining counterclaim issues.

Accordingly, judgment enters at 10:00 a.m. this 3rd day of April 2007.

MARK R. JEFFRIES

CLERK MAGISTRATE

April 3, 2007

————————-

[1] The Court finds that there was no evidence at trial as to the cost of the stove.

[2] In this decision, the Court does not reach the issue of the cause of the flooding.

[3] The per diem rental amount is calculated as follows: $1,450.00 x 12 = $17,400.00 ? 365 = $47.67.

[4] The per diem rental amount is calculated as follows: $1,450.00 x 12 = $17,400.00 ? 365 = $47.67.

[Footnotes not found in the case]

End Of Decision

HOUSING COURT

Nizam Khan v. Jeanne Sainvil

SOUTHEASTERN DIVISION

Docket # No. 07-SP-05108

Parties: Nizam Khan v. Jeanne Sainvil

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: May 15, 2007

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

This is a summary process action in which the plaintiff sought to recover possession of the premises from the defendant and damages for unpaid rent. The defendant filed a written answer 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 defendant, Jeanne Sainvil, has resided at 115 Colonel Bell Drive, #24, Brockton, MA (“the premises”) as a tenant at will since October 15, 2006. The plaintiff, Nizam Khan, is the owner of the premises and is the defendant’s landlord. The rent for the premises is $1,100.00 per month.

The defendant testified that the rent is due on the third day of each month, and the plaintiff testified that the rent is due on the first day of each month. The Court credits the plaintiff’s testimony on this issue, and finds that the rent is due on the first day of each month. The Court finds that the defendant has failed to pay the plaintiff any rent for the months of March 2007 and April 2007, owes a balance of $600.00 for the month of February 2007, and currently owes the plaintiff a total of $2,800.00 in unpaid rent.

The Court finds that, on March 8, 2007, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Quit for

Non-Payment of Rent-Tenant at Will.

The defendant filed a written answer and counterclaims based on breach of the implied warranty of habitability.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant testified that, at the inception of her tenancy, there was no light switch in the hallway of the premises, that the light is on a timer and the hallway is dark. She testified that the air conditioner cover “falls into the house when the wind blows,” and that the bathroom vent is clogged with plastic. She testified that the lock on the back door is not working, and that, when the heat is turned on, there are dust mites. She testified that the plaintiff would not give her a mailbox key, and when she went to the post office she could not get a key.

The plaintiff testified that she obtained a Certificate of Fitness for Human Habitation from the Board of Health prior to the inception of the defendant’s tenancy, and that the apartment was in good condition at the inception of the defendant’s tenancy. She testified that the defendant never complained to her about any conditions in the premises before she received a Report from the City of Brockton Board of Health in late January 2007. She testified that the defendant took the air conditioner cover off herself, and that the defendant broke the back door lock. She testified that she gave the defendant a key to the door lock at the inception of her tenancy, that the defendant broke the lock and removed part of the lock. She testified that there are 27 other tenants in the building and that she has received no heat-related complaints from any of them. She testified that the hallway light provides sufficient light, and that the timer goes on at 4:00 p.m. and goes off at 7:00 a.m. She also testified that she gave the defendant a mailbox key at the inception of her tenancy, that the defendant lost the key, and that, during a tenancy, a tenant has to deal directly with the post office to obtain a replacement key. The Court credits the plaintiff’s testimony on these issues.

The Court finds that, on January 23, 2007, the City of Brockton Board of Health (“Board of Health”) inspected the premises and listed the following conditions in its January 25, 2007 Report: “Living Room: Replace passage set and plate-badly damaged; Bathroom: Restore vent fan to full operation condition to provide

2 air changes per hour; General: Properly insulate A/C ports; Tenant complains of insufficient light in hallways in the dark hours (6 P.M. to 6 A.M.); Light must be 1 foot candle as measures (sic) at floor level 24 hours a day.”

The defendant testified that the plaintiff did not make any repairs after receiving the Board of Health Report. The plaintiff testified that she made the repairs required by the January 25, 2007 Board of Health Report promptly, and obtained a Certificate of Fitness for Human Habitation on February 9, 2007. The Court credits the plaintiff’s testimony on this issue.

The Court finds that the defendant caused the damage to the door lock in the premises, and removed the air conditioner cover from the wall. Accordingly, the Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on these conditions.

The Court finds that there is no evidence that the plaintiff knew or should have known about any of the defective conditions in the premises until she received the January 23, 2007 Board of Health Report. The Court finds that the Board of Health Report did not cite the plaintiff for any problems with the heat in the premises, or for the lack of a mailbox key. The Court finds that there was no credible evidence at trial that the remaining conditions in the January 25, 2007 Board of Health Report were serious, or that any of these conditions endangered the health or safety of the defendant, or that they diminished the fair rental value of the premises. Accordingly, the Court finds that the existence of these conditions did not constitute a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973).

The Court finds that the plaintiff has established her case for possession of the premises and damages for unpaid rent in the amount of $2,800.00, plus costs.

ORDER FOR JUDGMENT

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

1. Judgment enter for the plaintiff for possession of the premises and damages for unpaid rent in the amount of $2,800.00, plus costs.

2. Judgment enter for the plaintiff on the defendant’s counterclaims.

3. Execution issue ten (10) days after the date that judgment enters.

cc: Nizam Khan

Jeanne Sainvil

End Of Decision

HOUSING COURT

Marco Merisier v. Wanda Maldonado and Julio Morales[1]

SOUTHEASTERN DIVISION

Docket # 07-SP-02583

Parties: Marco Merisier v. Wanda Maldonado and Julio Morales[1]

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: March 7, 2007

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

This is a summary process action in which the plaintiff seeks to recover possession of the premises from the defendants and damages for unpaid rent.

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

The defendant Wanda Maldonado has resided at 23 Salisbury Street, 1st floor, New Bedford, MA (“the premises”) as a tenant under a lease since November 2, 2006. The defendant Julio Morales has resided at the premises as a tenant since December 5, 2006. The plaintiff, Marco Merisier, is the owner of the premises and is the defendant’s landlord. The rent for the premises is $800.00 per month and is due on the first day of each month, no later than the fifth day of each month. The defendants have failed to pay the plaintiff any rent for the months of January 2007 through March 2007 and currently owe the plaintiff a total of $2,400.00 in unpaid rent.

The plaintiff testified that the defendant Wanda Maldonado did not pay rent for November 2006 until November 13, 2006. He also testified that the defendants paid $400.00 of the December 2006 rent on December 13, 2006 and $400.00 of the December 2006 rent on December 18, 2006. The Court credits this testimony.

The Court finds that, on January 12, 2007, the plaintiff served each of the defendants with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent.

The Court finds that the plaintiff has established his prima facie case for possession of the premises and damages for unpaid rent in the amount of $2,400.00, plus costs.

At trial, the defendants testified that they notified the plaintiff that they were withholding their rent because there are defective conditions in the premises.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant Wanda Maldonado testified that she told the plaintiff at the inception of her tenancy that some of the baseboards in the premises were missing, that the plaintiff told

her he was going to Home Depot and would install baseboards, and that he never did. The defendant Julio Morales testified that there are no baseboards in parts of the premises, leaving the sheetrock exposed, and that he notified the plaintiff of the lack of baseboards when he moved into the premises on December 5, 2006. The plaintiff testified that he told the defendant Wanda Maldonado that he would repair the baseboards, and that he did put baseboards in her bedroom. The Court credits the parties’ testimony on this issue.

The defendant Julio Morales testified that there was no heat in the premises on two (2) occasions in December 2006. He testified that the first time there was no heat, the defendants notified the plaintiff and it was fixed the next day. He testified that the second time there was no heat, the defendants notified the plaintiff and it took two (2) days to fix the heat. The plaintiff testified that the defendants notified him that the heat was not working at 10:00 p.m. on December 13, 2006, and the heating contractor he engaged repaired the problem by 9:00 a.m. on December 14, 2006. He testified that, when the defendants notified him that the heat was not working again on December 15, 2006, he told the heating contractor to check out everything related to the heater, that the contractor did so on December 16, 2006, and that the defendants have not notified him of any further problems with the heat in the premises. The Court credits the parties’ testimony on these issues.

The defendant Julio Morales testified that 25% of the electric outlets are broken, and that the cold from the basement seeps into the premises. The defendant Wanda Maldonado testified that, on December 26, 2006, she saw two (2) cockroaches in the premises. The plaintiff testified that the defendants did not notify him of the existence of these conditions in the premises. The Court credits the parties’ testimony on these issues.

The Court finds that there was no evidence at trial that the defendants notified the plaintiff that 25% of the electric outlets in the premises do not work, that they saw two (2) cockroaches in the premises on one (1) occasion, or that cold air seeps into the premises from the basement. Accordingly, the Court finds that the defendants are not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on these conditions.

The Court finds that there was no credible evidence at trial that the lack of baseboards in parts of the premises was serious, or that this condition endangered the health or safety of the defendants, or that this condition diminished the fair rental value of the premises. Accordingly, the Court finds that the existence of this condition did not constitute a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that the defendants are not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this condition.

The Court finds that the lack of heat in the premises for three (3) days is a condition which constitutes a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). The Court finds that the defendants are not entitled to a defense to possession under G.L.

c. 239, s.8A based on this condition, since they were already in arrears in their rent when they notified the plaintiff of this condition. The Court finds that the defendants are entitled to damages under G.L. c. 239, s.8A based on this condition.

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 enter for the plaintiff for possession of the premises and damages for unpaid rent in the amount of $2,400.00, plus costs in the amount of $176.50, a total of $2,576.50.

2. Judgment enter for the defendants on their counterclaim for breach of the implied warranty of habitability in the amount of $78.90, setoff against the balance due the plaintiff as calculated under G.L. c. 239, s.8A.

3. The foregoing orders for judgment paragraphs 1 and 2 result in a net balance of unpaid rent due the plaintiff under G.L. c. 239, s.8A in the amount of $2,321.10, plus costs in the amount of $176.50, a total of $2,497.60.

4. Execution issue ten (10) days after the date that judgment enters.

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[1] The Court finds that Julio Morales is the only other adult occupant of the premises, and finds that he was served with the Notice To Quit and the Summary Process Summons and Complaint in this action. Accordingly, the Court finds that the Summary Process Summons and Complaint in this action is hereby amended to identify the defendants as Wanda Maldonado and Julio Morales.

[2] The per diem rental amount is calculated as follows: $800.00 x 12 = $9,600.00 ? 365 = $26.30.

End Of Decision

HOUSING COURT

Domingos Martins v. Carlos Aviles

SOUTHEASTERN DIVISION

Docket # 06-SP-01722

Parties: Domingos Martins v. Carlos Aviles

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: January 8, 2007

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

This is a summary process action in which the plaintiff seeks to recover possession of the premises from the defendant and damages for unpaid rent.

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

The defendant, Carlos Aviles, has resided at 230 Healy Street, 2nd floor, Fall River, MA (“the premises”) as a tenant at will since July 1, 2006. The plaintiff, Domingos Martins, is the owner of the premises and is the defendant’s landlord.

The plaintiff testified that the rent for the premises is $700.00 every four (4) weeks, that the defendant paid $700.00 on July 1, 2006 and that the rent is due every four (4) weeks after that, on the fourth Saturday of each month. He testified that the defendant has failed to pay him any rent “for the past nine (9) weeks,” and that he currently owes him a total of $1,575.00 in unpaid rent. The defendant testified that the rent is $700.00 per month and is due on the first day of each month. He testified that he does not owe the plaintiff any rent for November 2006 because he told the plaintiff to use his security deposit for that month’s rent, and that he did not pay any rent for December 2006 because he needs to save money to move. The plaintiff testified that he never agreed to use the defendant’s security deposit for November 2006 rent. The Court credits the plaintiff’s testimony on these issues, and finds that the rent for the premises, following the July 1, 2006 payment, is due on the fourth Saturday of each month. The Court finds that the defendant has failed to make the rental payments which were due on October 28, 2006 and November 25, 2006, and currently owes the plaintiff a total of $1,400.00 in unpaid rent.

The Court finds that, on November 14, 2006, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Quit For Rent.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant testified that, on October 17, 2006 and December 1, 2006, he called the Fall River Board of Health (“Board of Health”) because the plaintiff had shut off the heat, hot water and utilities. He testified that the plaintiff shut off the heat, hot water and utilities for two (2) days in October 2006 and for one (1) day in December 2006. The plaintiff testified that the heat and utilities have never been off during the defendant’s tenancy, and that the hot water was off for one (1) day because the hot water heater broke and had to be replaced. The Court credits the plaintiff’s testimony on these issues.

The Court finds that there was no credible evidence at trial that the plaintiff had shut off the defendant’s heat or electricity at any time during his tenancy. Accordingly, the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on these claims.

The Court finds that there was no credible evidence at trial that the lack of hot water at the premises for the one (1) day period in which the plaintiff installed a new water heater was serious, or that this isolated condition endangered the health or safety of the defendant, or that it diminished the fair rental value of the premises. Accordingly, the Court finds that the existence of these conditions did not constitute a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this condition.

The defendant testified that the plaintiff uses the defendant’s gas and electricity for himself. The plaintiff testified that there are separate meters for gas and electricity at the premises to provide service to his apartment on the first floor and to the defendant’s apartment on the second floor. The Court credits the plaintiff’s testimony on these issues.

The Court finds that there was no credible evidence at trial that the plaintiff has used the defendant’s gas or electricity at any time during the defendant’s tenancy. Accordingly, the Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this claim.

The defendant testified that the plaintiff has locked the laundry room door to deny him access to the basement to do his laundry. The plaintiff testified that the defendant was washing his clothes after midnight on a regular basis, which disturbed his sleep. He testified that, because of this disturbance, he locked the laundry room door at night, but allows the defendant access to the laundry room during the day. The Court credits the plaintiff’s testimony on these issues.

The Court finds that there was no credible evidence that limiting the defendant’s use of the laundry room to the daytime was serious, or that this condition endangered the health or safety of the defendant, or that it diminished the fair rental value of the premises. Accordingly, the Court finds that the existence of these conditions did not constitute a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, supra at 200-201 (1973). The Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this claim.

The Court finds that the plaintiff has established his case for possession of the premises and damages for unpaid rent in the amount of $1,400.00, plus costs.

ORDER FOR JUDGMENT

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

1. Judgment enter for the plaintiff for possession of the premises and damages for unpaid rent in the amount of $1,400.00, plus costs.

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

End Of Decision

HOUSING COURT

Ronald Oliveira v. Marisa Katramados and Juan Ruiz

SOUTHEASTERN DIVISION

Docket # 06-SP-03513

Parties: Ronald Oliveira v. Marisa Katramados and Juan Ruiz

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: January 12, 2007

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

This is a summary process action in which the plaintiff seeks to recover possession of the premises from the defendants and damages for unpaid rent. The defendants filed a written answer 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 defendants, Marisa Katramados and Juan Ruiz, have resided at 20 Viall Street, Apt. 1, First Floor, New Bedford, MA (“the

premises”) as tenants under a lease since May 1, 2006. The plaintiff, Ronald Oliveira, is the owner of the premises and is the defendants’ landlord. The rent for the premises is $675.00 per month and is due on the first day of each month, no later than the third day of each month. The defendants have failed to pay the plaintiff any rent for December 2006, owe a balance of $225.00 in rent for the month of November 2006, owe a balance of $65.00 for the month of October 2006 and currently owe the plaintiff a total of $965.00 in unpaid rent.

The Court finds that, on November 6, 2006, the plaintiff served the defendants with a 14 Day Notice To Terminate Tenancy for the following reasons: “Failure to pay rent in full October 2006, $65.00 owed. Failure to pay rent in full November 2006, $225.00 owed. Multiple lease violations, unauthorized storage, unregistered vehicles, disturbing the peace, refusing right of inspection and repair, unauthorized improvements, damage to premises, threatening landlord.” The Court finds that the lease between the parties provides, in pertinent part: “19. Default. If any default is made…in the performance of or compliance with any other term or condition hereof, the lease, at the option of Lessor, shall terminate and be forfeited, and Lessor may re-enter the premises and remove all persons therefrom. Lessee shall be given written notice of any default or breach, and termination and forfeiture of the lease shall not result if, within 3 days of receipt of such notice, Lessee has corrected the default or breach or has taken action reasonably likely to effect such correction within a reasonable time.”

The Court finds that the portion of the November 6, 2006 Notice To Quit which sought to terminate the defendants’ tenancy for breach of the lease was not legally sufficient to do so, since that portion of the Notice To Quit did not terminate on a rent day. Connors v. Wick, 317 Mass. 628, 631 (1945). In addition, that portion of the November 6, 2006 Notice To Quit did not give the defendants thirty (30) days notice of the plaintiff’s intention to terminate the tenancy for breach of the lease. G.L. c. 186, s.12. Accordingly, that portion of the November 6, 2006 Notice to Quit shall be dismissed without prejudice. The Court finds that the portion of the November 6, 2006 Notice To Quit which sought to terminate the defendants’ tenancy for non-payment of rent was legally sufficient to terminate their tenancy for this reason.

The defendants filed a written answer and counterclaims based on conditions in the premises, paying for electricity in the common area, and the plaintiff’s failure to pay the defendant Juan Ruiz for work he performed at the premises.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have

known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

Each of the defendants testified that they withheld the $290.00 in unpaid rent because the plaintiff had not paid the defendant Juan Ruiz for certain work he performed at the premises and for certain materials he purchased for the plaintiff. The plaintiff testified that the defendant Juan Ruiz has filed a small claims action in this Court based on this same claim, and that this case, No. 06-SC-00442, is scheduled for trial on January 8, 2007. Since the defendant Juan Ruiz filed his small claims action on November 20, 2006, prior to the filing of the defendants’ answer and counterclaims in this action, the Court finds that this claim will be resolved in the Small Claims action. Accordingly, the Court finds that the defendants are not entitled to a defense to possession or to damages based on this claim in this summary process action.

The defendant Juan Ruiz testified that the common area lights have been on the defendants’ electric meter since the inception of their tenancy, and that he made a complaint to the City of New Bedford Department of Inspectional Services, Division of Minimum Housing Standards (“Minimum Housing”) because of conditions in the premises. The Court credits this testimony.

The Court finds that, on July 13, 2006, Minimum Housing inspected the premises and found the following conditions: “Owner shall provide and pay for first floor occupant’s electric service because one front and rear hallway light (1st floor), one rear porch sensor fixture (two lights), three cellar lights, and one outlet in cellar are not separately metered; Repair or replace kitchen sink’s drain pipes; Replace living room windows’s bottom sash; Finish flooring under kitchen sink’s adjacent cabinet; Finish kitchen floor’s covering; Repair or replace all missing storm windows .”

The Court finds that Minimum Housing notified NStar of the commingling of electricity, and finds that, on November 24, 2006, NSTAR notified the plaintiff that it had placed these lights on the house meter effective November 13, 2006, and had billed him $20.00 for the period of September 15, 2006 through November 13, 2006 for this violation.

The defendant Juan Ruiz testified that he filed an Application for Temporary Restraining Order in November 2006 because the plaintiff had not made the repairs to the premises that were required by Minimum Housing. The plaintiff testified that he needed to gain access to the premises on two (2) successive days in order to do the work required by Minimum Housing, but that the defendants would not give him a key to the premises or allow him access to the premises on two (2) successive days. The Court credits the plaintiff’s testimony on these issues.

The Court finds that, on November 24, 2006, this Court (Edwards, J.) allowed the defendant Juan Ruiz’ Application for a Temporary Restraining Order against the plaintiff in No. 06-CV-00621, as follows: “(Mr. Ruiz) to deliver keys by 9:00 a.m. 11/27/06. (Mr. Ruiz) to permit access to premises between 12:00

p.m. to 4:00 p.m. on 11/29/06 and 11/30/06. (Mr. Oliveira) to complete remaining repairs required by Board of Health. (Mr. Oliveira) also repair to light in room next to living room to be completed by (Mr. Oliveira).” The Court finds that, on December 1, 2006, this Court (Chaplin, J.) allowed Mr. Oliveira’s Motion To Enforce Judge’s Order as follows: “(Mr. Ruiz) shall give (Mr. Oliveira) a key forthwith.” The plaintiff testified that the defendants did not provide him with a key to the premises until December 8, 2006, and that he finished all of the repairs except the kitchen flooring by December 15, 2006. The defendant Marisa Katramados testified that the plaintiff attempted to repair the kitchen flooring on December 28, 2006, but that she could still see through a hole. The Court credits the parties’ testimony on these issues.

The Court finds that the commingling of electricity, the defective kitchen sink drain pipes, defective living room windows’ bottom sash, defective kitchen flooring and missing storm windows listed in the July 13, 2006 Minimum Housing Report are conditions which, in the aggregate, constitute material breaches of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). The Court finds that the defendants are not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on these conditions because they did not allow the plaintiff access to the premises to repair these conditions.

The Court finds that the plaintiff has established his case for possession of the premises and damages for unpaid rent in the amount of $965.00, plus costs.

ORDER FOR JUDGMENT

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

1. Judgment enter for the plaintiff for possession of the premises and damages for unpaid rent in the amount of $965.00, plus costs.

2. Judgment enter for the plaintiff on the defendants’ counterclaims.

3. Execution issue for the plaintiff ten (10) days after the date that judgment enters.

End Of Decision

HOUSING COURT

Ronald Oliveira v. Barbie Hart and all other tenants

SOUTHEASTERN DIVISION

Docket # 07-SP-02501

Parties: Ronald Oliveira v. Barbie Hart and all other tenants

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: February 27, 2007

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

This is a summary process action in which the plaintiff seeks to recover possession of the premises from the defendants and damages for unpaid rent.

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

The defendant, Barbie Hart[1], has resided at 49 Acushnet Ave., Apt. 3, New Bedford, MA (“the premises”) as a tenant at will since November 10, 2006. The plaintiff, Ronald Oliveira, is the owner of the premises and is the defendant’s landlord. The rent for the premises is $600.00 per month and is due on the first day of each month. The defendant has failed to pay the plaintiff any rent for the months of January 2007 and February 2007, owes a balance of $120.00 for the month of December 2006, and currently owes the plaintiff a total of $1,320.00 in unpaid rent.

The plaintiff testified that, on January 8, 2007, he served the defendant in hand with a 14 Day Notice To Terminate Tenancy for Non-Payment of Rent. The defendant testified that she did not receive the Notice To Quit. The Court credits the plaintiff’s testimony on this issue, and finds that, on January 8, 2007, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent.

At trial, the defendant testified that there are defective conditions in the premises.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant testified that, since the inception of her tenancy, the heat in the kitchen has not worked. She testified that she puts a sheet over the doorway and turns the thermostat up to 90? to warm the kitchen. She testified that there are cockroaches in the premises, that the cockroaches are coming from the second floor apartment’s trash bags, that she saw cockroaches in her microwave, and that she notified the plaintiff of the cockroaches in December 2006. She testified that the front door to the premises was split and she was without a front door for three (3) weeks. She testified that the smoke detectors did not work and that the toilet seat was broken. She testified that, on December 19, 2006, there was no water in the premises.

The plaintiff testified that he engaged the services of a plumber to check the heat and that the plumber reported that there was no problem with the heat. He testified that he has never had a problem with cockroaches in the two (2) years that he has owned the building in which the premises is located, that the second

floor tenant moved into public housing during the week of the trial of this action, and that public housing authorities check the incoming tenant’s prior apartment to be sure that there are no roaches. He testified that the public housing authorities did not find any roaches during its recent inspection, that there are cockroaches only in the defendant’s apartment, and that he believes she brought the cockroaches into the apartment with her when she moved in. He testified that he replaced the front entry door, that the City’s health inspector was not satisfied with this repair, and that he installed a second door within 48 hours. He testified that the smoke detectors were working at the inception of the defendant’s tenancy, and that he replaced the batteries when the tenant complained. He testified that, after he received the Minimum Housing Report, he set up an appointment with the defendant to exterminate the cockroaches but that she was not home for the appointment, and he could not get into the premises. He testified that the problem with the water on December 19, 2006 was that a cold water pipe had frozen, and that he thawed the pipe and restored cold water service within two (2) hours. He testified that the problem was limited to the cold water, and that the defendant had hot water at all times.

The Court finds that, on January 18, 2007, the City of New Bedford Department of Inspectional Services, Division of Minimum Housing Standards (“Minimum Housing”) inspected the premises and found the following conditions: “Secure the services of a Professional exterminator for cockroaches 24 hrs. ‘all apartments’; Roaches evident inside kitchen cabinets; Owner shall provide and maintain in good operating condition the facilities for heating every habitual (sic) room; Owner shall provide sufficient heat in kitchen and dinning (sic) room area to at least 68?/F; Baseboards on north side of dinning(sic) room and kitchen not providing enough heat; Owner shall replace the front interior exit door. Provide a proper door-proper fitting and make for weather tight conditions.” The Court finds that Minimum Housing made a written report of these conditions on January 19, 2007.

The Court credits the defendant’s testimony with respect to the problems with the heat in the premises, the broken door, and the broken toilet seat, and credits the plaintiff’s testimony with respect to the cockroaches in the premises, the smoke detectors and the lack of cold water for a two (2) hour period on December 19, 2006.

The Court finds that there was no evidence at trial that either the broken toilet seat or the lack of cold water for a two (2) hour period on December 19, 2006 was serious, or that either of these conditions endangered the health or safety of the defendant, or that either of these conditions diminished the fair rental value of the premises. Accordingly, the Court finds that the existence of these conditions did not constitute a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on these conditions.

The Court finds that it is a reasonable inference that the defendant brought the cockroaches into the premises with her at the

inception of her tenancy, and finds that the defendant denied the plaintiff access to the premises on the day the parties had set for the premises to be exterminated. Accordingly, the Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this condition.

The Court finds that the lack of heat in the premises and the broken entry door in the premises are conditions which constitute material breaches of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). The Court finds that the defendant is entitled to a defense to possession under G.L. c. 239, s.8A based on the lack of heat since the inception of her tenancy, and finds that the defendant is entitled to damages under G.L. c. 239, s.8A based on these conditions.

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 enter for the plaintiff for damages for unpaid rent in the amount of $1,320.00, plus costs in the amount of $170.00, a total of $1,490.00.

2. Judgment enter for the defendant on her counterclaim for breach of the implied warranty of habitability in the amount of $577.88, setoff against the balance due the plaintiff as calculated under G.L. c. 239, s.8A.

3. The foregoing orders for judgment paragraphs 1 and 2 result in a net balance of unpaid rent due the plaintiff under G.L. c. 239, s.8A in the amount of $742.12, plus costs in the amount of $170.00, a total of $912.12.

4. Judgment enter for the defendant for possession pursuant to the fifth paragraph of G.L. c. 239, s.8A, on the condition that within seven (7) days of her receipt of this ORDER, the defendant deposits with the Clerk of this Court, the sum of $742.12, plus costs in the amount of $170.00, a total of $912.12, in the form of cash, certified check, cashier’s check, or money order, payable to the Clerk of Court. If this deposit is made, the Clerk shall immediately release all funds held by the Court to the plaintiff. If the deposit is not made, judgment shall automatically enter in favor of the plaintiff for possession and damages in the amount of $742.12, plus costs in the amount of $170.00, a total of $912.12,

on the next business day following the expiration of the tenth (10th) day from the date of this Order.

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[1] The Court finds that there was no evidence at trial that anyone other than the defendant Barbie Hart is a tenant at the premises. Accordingly, this decision will refer only to the defendant Barbie Hart.

[2] The per diem rental amount is calculated as follows: $600.00 x 12 = $7,200.00 ? 365 = $19.73.

End Of Decision

HOUSING COURT

Luis F. Pinto v. Michael DeSousa and Tara DeSousa

SOUTHEASTERN DIVISION

Docket # Docket No. 06-SP-03544

Parties: Luis F. Pinto v. Michael DeSousa and Tara DeSousa

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: January 12, 2007

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

This is a summary process action in which the plaintiff seeks to recover possession of the premises from the defendants and damages for unpaid rent.

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

The defendants, Michael DeSousa and Tara DeSousa, have resided at 4 Grove Street, New Bedford, MA (“the premises”) as tenants under a lease from May 4, 2006 through November 4, 2006 and as tenants at will thereafter. The plaintiff, Luis F. Pinto, is the owner of the premises and is the defendants’ landlord. The rent for the premises is $1,000.00 per month and is due on the fourth day of each month. The defendants have failed to pay the plaintiff any rent for the months of October 2006 through January 2007 and currently owe the plaintiff a total of $4,000.00 in unpaid rent.

The Court finds that, on November 16, 2006, the plaintiff served the defendants with a legally sufficient 14 Day Notice To Quit For Non-Payment of Rent.

At trial, the defendant Michael DeSousa testified that the defendants are withholding their rent until the plaintiff makes repairs to the premises.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant Michael DeSousa testified that, at the inception of the defendants’ tenancy, they moved into the premises a week early to perform certain repair work for the plaintiff. He

testified that, one month into the tenancy, the plaintiff, who lives on the second floor of the building in which the premises is located, began to yell at the defendants to turn their television down. He testified that the lease between the parties provided that part of the driveway was for the defendants’ use, and that they parked their Mercedes, a Buick Regal, and his work vehicles. He testified that the plaintiff complained that the Buick Regal was leaking oil, and that he wanted the car removed from the driveway. He testified that he and the plaintiff got into an argument, and that the defendants were served with a notice of non-renewal of the lease two (2) days after this argument. He testified that this is when he told the plaintiff that there were defective conditions in the premises, including a leaking shower, a missing screen, 18 windows that needed caulking, a large hole in the dining room which allowed spiders to come up from the cellar, chipping paint on a radiator, and chipping kitchen cabinets. He testified that the defendants withheld their rent for October 2006 because of these conditions.

The defendant Tara DeSousa testified that, at the inception of the defendants’ tenancy, the walls had not been painted in a long time, and the floors needed to be redone. She testified that, several months into the defendants’ tenancy, the plaintiff became confrontational with the defendants. She testified that, during the summer months, the plaintiff parked his sailboat in the defendants’ parking space.

The plaintiff testified that, before the defendants moved into the premises, the apartment was redone and was in “immaculate” condition at the inception of their tenancy, including new windows. He testified that the defendants asked him for permission to paint the walls in the premises because they wanted to change the paint to a color they liked, and that he agreed they could do so. He testified that he asked the defendants to turn down their television because he heard “swears” coming from their television. He testified that, in September 2006, the defendants notified him that there was a problem with the toilet in the premises. He testified that he snaked the toilet and then replaced it with a new one the same day he received notice of the condition. He testified that, on September 28, 2006, the defendants were served by constable with a notice of non-renewal of the lease, and that he heard the defendants banging things in the premises and shouting that night. He testified that the defendants notified him in October 2006 that the shower in the premises was leaking, and that he made several attempts to fix it. He testified that he then determined that the problem was that the defendants overfilled the bathtub, and that he determined this by inspecting the soap scum line on the bathtub in the premises. He testified that he inspected the kitchen cabinets and did not see any problem, and that the defendants did not notify him of any other conditions which needed repair.

The Court credits the plaintiff’s testimony on these issues, finds that there was no credible evidence at trial that the bathtub in the premises leaked, and finds that there was credible evidence at trial that the defendants overfilled the bathtub on a regular

basis. Accordingly, the Court finds that the defendants are not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this condition.

The Court finds that there was no credible evidence at trial that the remaining conditions at the premises about which the defendants testified were serious, or that they endangered the health or safety of the defendants, or that they diminished the fair rental value of the premises. Accordingly, the Court finds that the existence of these conditions did not constitute a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that the defendants are not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on these conditions.

The Court finds that the lease between the parties provided, in pertinent part: “13. Parking. Any parking that may be provided is strictly self-park and is at owner’s risk…Off street parking limited to one car to be parked on the left hand side of the driveway.” The Court finds that, at the time the plaintiff complained about the Buick Regal leaking oil, the defendants were parking more than one (1) vehicle in the driveway. Accordingly, the Court finds that the defendants are not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this claim.

The Court finds that the plaintiff has established his case for possession of the premises and damages for unpaid rent in the amount of $4,000.00, plus costs.

ORDER FOR JUDGMENT

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

1. Judgment enter for the plaintiff for possession of the premises and damages for unpaid rent in the amount of $4,000.00, plus costs.

2. Judgment enter for the plaintiff on the defendants’ counterclaims.

3. Execution issue for the plaintiff ten (10) days after the date that judgment enters.

cc: Luis F. Pinto

Michael DeSousa

Tara DeSousa

– 5-

End Of Decision

HOUSING COURT

Michael Pratt v. Wendy Vasconcellos

SOUTHEASTERN DIVISION

Docket # Docket No. 06-SP-05762

Parties: Michael Pratt v. Wendy Vasconcellos

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: March 26, 2007

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

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

The defendant, Wendy Vasconcellos, resided at 3 Third Ave., Wareham, MA (“the premises”) as a tenant under a Section 8 Housing Choice Voucher Program Model Dwelling Lease (“Lease”), administered through South Shore Housing Development Corporation (“South Shore Housing”), from December 20, 2002 through December 12, 2006. The plaintiff, Michael Pratt, is the owner of the premises and was the defendant’s landlord. The contract rent for the premises was $1,300.00 per month, the defendant’s portion of the monthly rent was $49.00 per month, and was due on the first day of each month. The Court finds that the defendant has vacated the premises and the issue of possession is moot.

The plaintiff’s property manager, Virginia Reimels, testified that the contract rent for the premises is $1,300.00 per month, that neither the defendant nor South Shore Housing has paid the plaintiff any rent for the months of June 2006 through December 2006, and that the defendant currently owes the plaintiff a total of $9,100.00 in unpaid rent.

The defendant filed a Motion For Summary Judgment Regarding Landlord’s Rent Claim1, contending that the plaintiff is limited to recovering the tenant’s portion of the contract rent for the months of June 2006 through December 2006 because South Shore Housing terminated the plaintiff from the Section 8 program effective May 31, 2006 for failure to make repairs. In Curtis v. Surrette, 49 Mass.App.Ct. 99, 103-104 (2000), the Appeals Court held that “[t]enants may be held liable only for that portion of the contract rent that they assumed and agreed to pay,” citing 24 CFR 982.310(b)(1) and 982.451(b)(4)(iii) which provide that “[t]he family is not responsible for payment of the portion of rent to owner covered by the housing assistance payment under the HAP contract between the owner and the [housing authority].”. Accordingly, the defendant’s Motion For Summary Judgment Regarding Landlord’s Rent Claim is ALLOWED, and the Court finds that the plaintiff is limited to recovering the tenant’s portion of the monthly rent for the months of June 2006 through December 2006 in this action, a total of $343.00.

Ms. Reimels testified that, on July 27, 2006, the plaintiff served the defendant with a 14 Day Notice To Quit by constable. The defendant testified that she did not receive the Notice To Quit. The Court finds that the constable’s Return of Service states that he served the 14 Day Notice To Quit on the defendant on July 27, 2006 “in hand.” Since service by constable constitutes prima facie evidence of receipt, G.L. c. 41, s.94, and since the constable’s return of service states that the service of the Notice To Quit was “in hand,” the Court does not credit the defendant’s testimony on this issue. The Court finds that, on July 27, 2006,

the plaintiff served the defendant with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent.

The defendant filed a written answer and counterclaims based on breach of the implied warranty of habitability, breach of contract, and violations of G.L. c. 186, s.14, G.L. c. 239, s.2A2 and G.L. c. 186, s.18.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The Court takes judicial notice of a prior summary process action in this Court between these parties, Pratt v. Vasconcellos, No. 06-SP-05325. In its Findings of Fact, Rulings of Law, and Order for Judgment dated October 27, 2006, this Court (Chaplin, J.) found that the defendant was entitled to a rent abatement for the plaintiff’s breach of the implied warranty of habitability with respect to the following conditions at the premises: the defective walls and ceilings, the defective stove and oven, and the conditions listed in the March 28, 2006 South Shore Housing Report with the exception of the debris in the yard of the premises, the absence of electric outlets, the holes in the wall, and the damaged steel door. The Court finds that there was no evidence at trial that any of these conditions had been repaired between September 6, 2006-the day following the conclusion of the prior summary process trial between the parties-and December 12, 2006. The Court finds that these conditions constitute material breaches of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). The Court finds that the defendant is entitled to damages under G.L. c. 239, s.8A based on these conditions.

for the 98 day period between September 6, 2006 and December 12, 2006, five per cent (5%); (2) for the defective stove and oven in the premises for the 98 day period between September 6, 2006 and

December 12, 2006, twenty per cent (20%); and (3) for the remaining conditions listed in the March 28, 2006 South Shore Housing Report for the 98 day period between September 6, 2006 and December 12, 2006, thirty-five per cent (35%), calculated as follows: ($42.74/day3 x 5% = $2.14 x 98 = $209.72) + ($42.74/day x 20% = $8.55 x 98 = $837.90) + ($42.74/day x 35% = $14.96 x 98 = $1,466.08) = $2,513.70.

Ms. Reimels testified that, since the conclusion of the prior summary process trial between the parties on September 5, 2006, she has not been able to make repairs to the property. She testified that, each time she went to the premises during this period of time, she could hear that a pit bull had been left in the house so she could not go in. She also testified that she did not contact the defendant directly to gain access to make repairs because she does not have the defendant’s telephone number, and that she did not attempt to reach the defendant’s attorney or to put a note on the door asking for access. The Court credits this testimony, and finds that it is a reasonable inference that Ms. Reimels did not attempt to enter the premises or to put a note on the door because she was afraid of the pit bull. The Court does not find that the actions of the plaintiff’s agent between September 5, 2006 and December 12, 2006 in failing to make repairs constitutes a serious interference with the defendant’s quiet enjoyment of the premises under all of the circumstances of this case. Accordingly, the Court finds that the defendant is not entitled to damages under G.L. c. 186, s.14 based on this claim.

The Court finds that there was no evidence at trial that the plaintiff has violated any of the provisions of G.L. c. 186, s.18. Accordingly, the Court finds that the defendant is not entitled to damages based on this claim.

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 enter for the Plaintiff for damages for unpaid rent in the amount of $343.00, plus costs in the amount of $171.50, for a total of $514.50.

2. Judgment enter for the defendant on her counterclaim under G.L. c. 239, s.8A in the amount of $2,513.70.

3. Judgment enter for the plaintiff on the defendant’s remaining counterclaims.

4. The foregoing orders for judgment paragraphs 1 through 3 result in a net judgment for the defendant in the amount of $1,999.20.

5. Execution issue for the defendant ten (10) days after the date that judgment enters.

cc: Michael Pratt

Susan Nagl, Esq.

End Of Decision

HOUSING COURT

Daniel Rosman v. Daisy McKay and Dale Lacombe

SOUTHEASTERN DIVISION

Docket # Docket No. 07-SP-00084

Parties: Daniel Rosman v. Daisy McKay and Dale Lacombe

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: January 31, 2007

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

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

The defendants, Daisy McKay and Dale Lacombe, have resided at 265 Rodman Street, 1 East, Fall River, MA (“the premises”) as tenants at will since September 1, 2006. The plaintiff, Daniel Rosman, is the owner of the premises and is the defendants’ landlord. The rent for the premises is $140.00 per week and is due each Wednesday for a week in advance. The defendants have failed to pay the plaintiff any rent for the weeks of December 20, 2006 through January 24, 2007 and currently owe the plaintiff a total of $840.00 in unpaid rent.

The Court finds that, on December 21, 2006, the plaintiff served the defendant Daisy McKay with a legally sufficient 14 Day Notice To Quit For Non Payment of Rent.[1]

The defendants filed a written answer and counterclaims based on conditions in the premises.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant Daisy McKay testified that, at the inception of the defendants’ tenancy on September 1, 2006, the plaintiff promised to make repairs to several unspecified conditions, but did not make any of these repairs. She testified that she called the City of Fall River Board of Health in December 2006, prior to receiving the Notice To Quit. She also testified that, after the Board of Health inspected the premises, the plaintiff installed a smoke alarm in the kitchen with screws, but the smoke alarm fell off while the plaintiff’s worker was still in the premises, and the smoke alarm has never been re-installed. She testified that the plaintiff has not repaired any of the other conditions listed on the December 22, 2006 Board of Health Report, and that the space heater has not worked at all during the month of January 2007. The plaintiff testified that he replaced the space heater in the premises on December 19 or 20, 2006, that it was working when he left the premises, and that he has not made any of the repairs listed on the Board of Health Report because “it’s a hostile situation” at the premises. The Court credits the testimony of the defendant Daisy McKay on these issues.

The Court finds that, on December 22, 2006, the City of Fall River Board of Health (“Board of Health”) inspected the premises and found the following conditions: “1. Space heater malfunctioning (Still has heat but needs repairing); 2. Kitchen flooring has holes; 3. Smoke alarm missing in kitchen; 4. Threshold leading to bedroom missing. Frame not fitted. Evidence of fire; 5. Back entrance door not legal (Hollow); 6. Frame to back entrance door-pieces missing; 7. Hallway lights, all levels, not working; 8. Smoke alarm loose to south bedroom ceiling; 9. Doors missing to bedrooms throughout apartment; 10. Shower ceiling not finished; 11. Living room windows (2) do not stay open; 12. Entrance door frame cracked. Has holes; 13. Space between frame and entrance door; 14. Cellar boarded up. Tenant has no access to fuse box or hot water tanks. Note: Carbon monoxide detectors missing.”

The defendant Dale Lacombe testified that, on an unspecified date in December 2006, the plaintiff boarded up the basement of the building in which the premises is located, and that, as a result, the defendants do not have access to the gas meter or the hot water tank. The Court credits this testimony. The plaintiff testified that he boarded up the basement because people were kicking the doors in on the first floor storefronts of the building in which the premises is located. The Court credits this testimony, but finds that the plaintiff’s denial of access to the basement constitutes a material breach of the implied warranty of habitability under G.L. c. 239, s.8A.

The Court finds that the defective space heater, the lack of smoke detectors and carbon monoxide detectors, the plaintiff’s denial of access to the basement, and the remaining conditions listed in the December 22, 2006 Board of Health Report, in the aggregate, are conditions which constitute material breaches of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). The Court finds that the defendants are entitled to a defense to possession and to damages under G.L. c. 239, s.8A based on these conditions.

The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises free of defects and the fair rental value of the premises during the period in which the defective conditions existed. The Court finds that the fair rental value of the premises is $140.00 per week. The Court finds that the defendants are entitled to the following rent abatements: (1) for the defective space heater for the 25 day period between January 1, 2007 and January 25, 2007, one hundred per cent (100%); (2) for the lack of smoke detectors and carbon monoxide detectors in the premises for the 122 day period between September 1, 2006 and December 31, 2006, fifty per cent (50%) (3) for the denial of access to the basement for the 31 day period between December 1, 2006 and December 31, 2006, fifteen per cent (15%); and (4) for the remaining conditions listed in the December 22, 2006 Board of Health Report for the 10 day period between December 22, 2006 and December 31, 2006, twenty per cent (20%), calculated as follows: ($19.95/day2 x 100% = $19.95 x 25 = $498.75) + ($19.95/day x 50% = $9.98 x 122 = $1,217.56) + ($19.95/day x 15% = $2.99 x 31 = $92.69) + ($19.95/day x 20% = $3.99 x 10 = $39.90) = $1,848.90.

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 enter for the defendants for possession under G.L. c. 239, s.8A.

2. Judgment enter for the plaintiff for damages for unpaid rent in the amount of $840.00, plus costs in the amount of $181.95, a total of $1,021.95.

3. Judgment enter for the defendants for damages for breach of the implied warranty of habitability in the amount of $1,848.90.

4. The above orders for judgment paragraphs 2 and 3 result in a net judgment for the defendants for damages in the amount of $826.95.

5. Execution issue for the defendants for damages in the amount of $826.95 ten (10) days after the date that judgment enters.

cc: Daniel Rosman

Daisy McKay

Dale Lacombe

————————-

[1] At trial, Dale Lacombe testified that he also resides at the premises, the parties agreed that he be added as a defendant in this action, and Mr. Lacombe waived his right to service of the Notice To Quit and the Summary Process Summons and Complaint.

[2] The per diem rental amount is calculated as follows: $140.00 x 52 = $7,280.00 ? 365 = $19.95.

– 5-

End Of Decision

HOUSING COURT

Daniel Rosman v. Caprise Migliori

SOUTHEASTERN DIVISION

Docket # Docket No. 06-SC-00066

Parties: Daniel Rosman v. Caprise Migliori

Judge: ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: January 12, 2007

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

This is a small claims action in which the plaintiff sought to recover damages from the defendant for unpaid rent and sheriff’s fees. The defendant filed a written answer and counterclaims based on conditions in the premises, retaliation, and moving expenses. On November 27, 2006, the plaintiff did not appear for trial and was defaulted.

This matter is now before the Court on the defendant’s request for assessment of damages. The plaintiff did not appear or otherwise defend at the assessment hearing, and was defaulted.

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

The defendant, Caprise Migliori, resided at 482 Vale Street, Fall River, MA (“the premises”) as a tenant at will from August 1, 2006 through November 9, 2006. The plaintiff, Dan Rosman, is the owner of the premises and was the defendant’s landlord. The rent for the premises was $550.00 per month and was due on the first day of each month.

The defendant testified that, at the inception of her tenancy, there was no cooking stove in the premises and that she repeatedly requested that the plaintiff provide her with a cooking stove. She testified that there was never a cooking stove in the premises during her tenancy. She also testified that the space heater in the premises did not work. The Court credits this testimony.

The Court finds that, on September 5, 2006, the City of Fall River Board of Health (“Board of Health”) inspected the premises and found the following conditions: “Door frame to entrance door pieces falling; Tenant has no cooking stove and space heater (Owner must provide); Window locks missing throughout apartment; Paint peeling to window frames throughout apartment; Electrical covers for wall sockets loose. Some missing; Owner’s name, address & contact # to be posted on exterior or hallway.”

The defendant testified that the plaintiff did not repair any of the conditions listed in the September 5, 2006 Board of Health Report before she vacated the premises on November 9, 2006. The Court credits this testimony.

The Court finds that the conditions listed in the September 5, 2006 Board of Health Report are conditions which constitute material breaches of the implied warranty of habitability. Boston

Housing Authority v. Hemingway, 363 Mass. 184 (1973). The Court finds that the defendant is entitled to damages under G.L. c. 239, s.8A based on these conditions.

The defendant testified that the plaintiff’s property manager saw the Board of Health’s inspector on September 5, 2006 and told the plaintiff of the inspection. She testified that she observed that the plaintiff “got upset” and that she was served with a 14 Day Notice To Quit for Non-Payment of Rent on September 6, 2006, even though she did not owe the plaintiff any rent. She testified that she believes the plaintiff served the Notice To Quit in retaliation for her complaint to the Board of Health. The Court credits the defendant’s testimony on these issues.

G.L. c. 186, s.18 provides, in pertinent part: “Any person or agent thereof who threatens to or takes reprisals against any tenant of residential premises for the tenant’s act of, commencing, proceeding with, or obtaining relief in any judicial or administrative action the purpose of which action is to obtain damages under, or otherwise enforce, any federal, state or local law, regulation, by-law or ordinance, which has as its objective the regulation of residential premises; or exercising the tenant’s rights pursuant to section one hundred and twenty-four D of chapter one hundred and sixty-four; or reporting to the board of health or … shall be liable for damages which shall not be less than one month’s rent or more than three month’s rent, or the actual damages sustained by the tenant, whichever is greater, and the costs of the suit, including a reasonable attorney’s fee.

“The receipt of any notice of termination of tenancy, except for nonpayment of rent, or, of increase in rent, or, of any substantial alteration in the terms of tenancy within six months after the tenant has commenced, proceeded with, or obtained relief in such action, exercised such rights, made such report or complaint, … shall create a rebuttable presumption that such notice or other action is a reprisal against the tenant for engaging in such activities. Such presumption shall be rebutted only by clear and convincing evidence3 that such person’s action

was not a reprisal against the tenant and that such person 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 that tenants had engaged in, activities protected under this section.”

The Court finds that, on September 6, 2006, the plaintiffs served the defendant with a 14 Day Notice To Quit For Non Payment. The Court finds that, since the Notice To Quit was for non-payment of rent, the defendant is not entitled to the statutory presumption of retaliation. The Court finds that it is a reasonable inference that the plaintiff decided to terminate the defendant’s tenancy because she had called the Board of Health on September 5, 2006. The Court finds, on the facts of this case, that the defendant has established with clear and convincing evidence that the plaintiff retaliated against her. The Court finds that the plaintiff did not have sufficient independent justification for serving the September 6, 2006 Notice To Quit, and finds that he took this action in reprisal for the defendant’s actions in calling the Fall River Board of Health on September 5, 2006. Accordingly, the defendant is entitled to damages under G.L. c. 186, s.18 in the amount of $1,650.00, which represents three (3) months’ rent.

Since the Court has already awarded the defendant damages in the amount of $1,455.48 for the plaintiff’s breach of the implied warranty of habitability and the defendant’s damages cannot exceed a total of $2,000.00 in this action, pursuant to G.L. c. 218, s.21, the Court will reduce the damages awarded to the defendant for the plaintiff’s violation of G.L. c. 186, s.18 to $544.52.

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 enter for the defendant on the plaintiff’s claims.

2. Judgment enter for the defendant on her claim for breach of the implied warranty of habitability in the amount of $1,455.48.

3. Judgment enter for the defendant on her claim under G.L. c. 186, s.18 in the amount of $544.52.

4. The foregoing orders for judgment paragraphs 2 and 3 result in a total judgment for damages for the defendant in the amount of $2,000.00.

5. Payment is to be made in full within thirty (30) days of the date of judgment.

cc: Dan Rosman

Caprise Migliori

————————-

[1] The Court finds that the State Sanitary Code, 105 CMR 410.201,

requires that the owner of the premises provide heat from September 15 through June 15 each year.

[2] The per diem rental amount is calculated as follows: $550.00 x 12 = $6,600.00 ? 365 = $18.08.

[3] “Clear and convincing” evidence is that which “induces in the mind of the trier a reasonable belief that the facts 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).

– 6-

End Of Decision

HOUSING COURT

Bluemead Properties, Inc./Dimity Sharp PLAINTIFFS v. Edwin T. Scallon DEFENDANT

Docket # Docket No. 07-SP-00831

Parties: Bluemead Properties, Inc./Dimity Sharp PLAINTIFFS v. Edwin T. Scallon DEFENDANT

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: October 24, 2007

ORDER

After hearing on the outstanding post-trial Motions, the Court rules as follows:

1. The defendant’s Motion To Waive Appeal Bond: The Court finds that the defendant is indigent within the meaning of G.L. c. 261, s.27A. At the hearing on this Motion, the issues which the defendant articulated as grounds for his appeal are as follows: That, contrary to the Findings of Fact, Rulings of Law and Order for Judgment dated October 11, 2007, he did not owe the amount of unpaid rent which the Court (Chaplin, J.) found to be due, that the damages calculation under G.L. c. 186, s.15B was incorrect, that the Court’s finding that the Housing Court has subject matter jurisdiction in this action was incorrect, that the Court’s finding with respect to the potability of the water in the premises was incorrect, that the Court’s finding on the issue of retaliation was incorrect, that the Court’s finding under G.L. c. 186, s.15C was incorrect, that the Court’s damages calculations for breach of the implied warranty of habitability were incorrect, and that the Court made no findings on the issues of trespass by the plaintiff, or the habitability of the premises in relation to the Fire Code. The plaintiff, through counsel, contended that all of the issues which the defendant articulated are issues of credibility within the Court’s discretion, and that the defendant made no showing that the Court abused her discretion or misapplied the applicable law. The Court finds that each of the issues which the defendant articulated as the basis for his appeal of the October 11, 2007 Findings of Fact, Rulings of Law and Order for Judgment were based on the Court’s view of the credibility of the witnesses at trial, finds that these issues are within the discretion of the trial judge, and finds that the defendant has not articulated any basis on which an appellate court could determine that the trial judge abused her discretion or committed an error of law. Accordingly, the Court finds that the defendant does not have a non-frivolous defense to this action within the meaning of G.L. c. 239, s.5.

For this reason, the defendant’s Motion To Waive Appeal Bond is DENIED. Within seven (7) days of the date of this Order, as a condition for the entry of this action in the Appeals Court, the defendant shall deposit with the Clerk of Court such bond in the amount of $6,040.29, plus costs in the amount of $194.55, a total of $6,234.84, payable to the plaintiff, with such surety or sureties approved by the Court, or secured by cash or its equivalent. This sum represents the amount of the judgment in this

action, plus costs.

As a further condition of the appeal, the defendant shall pay use and occupancy to the plaintiff on the first day of each month during which the appeal is pending in the amount of $2,000.00 per month, beginning November 1, 2007.

2. The defendant’s Motion To Stay Execution Pending Appeal and Order Injunction During Pendency of Appeal: The Court finds that, in the event that the defendant posts the $6,234.84 appeal bond within seven (7) days, he must be allowed to occupy the premises during the pendency of the appeal. Accordingly, the Motion To Stay Execution Pending Appeal and Order Injunction During Pendency of Appeal is ALLOWED if, and only if, the $6,234.84 appeal bond is posted in a timely manner. If it is not so posted, the plaintiff is free to file a Motion To Dismiss Appeal and Issue Execution.

cc: Pamela Gauvin, Esq.

Edwin T. Scallon

October 24, 2007

Docket #07-SP-00831

Mailing List:

Pamela Gauvin, Esq.

Law Offices of James W. Clarkin

84 North Main Street

Post Office Box 267

Fall River, MA 02722

Edwin T. Scallon

18B Mason Street

Rehoboth, MA 02769

End Of Decision

HOUSING COURT

Danielle Augustine PLAINTIFF v. Oagnes Tagessian DEFENDANT

Docket # Docket No. 07-SC-00019

Parties: Danielle Augustine PLAINTIFF v. Oagnes Tagessian DEFENDANT

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: June 8, 2007

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

This is a small claims action in which the plaintiff seeks to recover damages from the defendant for breach of the implied warranty of habitability in the amount of $2,000.00, plus costs. The defendant claimed an appeal before a judge, pursuant to G.L. c. 218, s.23, from a judgment entered on April 12, 2007. On May 23, 2007, both parties appeared and the trial on the merits was held before Chaplin, J. on that date. At trial, the Court allowed the defendant’s oral Motion that the pleadings be corrected to identify him as “Oagnes Tagessian.”

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

The judgment of April 12, 2007 has prima facie effect in this appeal, requiring a judgment in the plaintiff’s favor unless the defendant introduces some credible contradictory evidence during the trial on the appeal.

The April 12, 2007 judgment for the plaintiff in the sum of $2,000.00, plus costs, was “based on a finding that the Defendant breached the Implied Warranty of Habitability. Specifically, the Defendant failed to provide an adequate heating stove at the Plaintiff’s apartment from September 22, 2006 through the end of the tenancy on or about February 28, 2007…(and) the existence of cockroach infestation…for the period of September 22, 2006 through the date of the last extermination effort on October 26, 2006…” The April 12, 2007 judgment also provided, in pertinent part: “As a result of the above determination and the monetary limits herein imposed, no further findings are made relative to an allegedly defective cooking stove and refrigerator, allegedly broken and or defective windows, the alleged existence of black mold, Plaintiff’s alleged carbon monoxide poisoning or the presence of gas odors and soot covered walls in the subject apartment.”

At the trial on the appeal, the defendant testified that he maintained adequate heating facilities in the premises throughout the plaintiff’s tenancy, and that he had scheduled additional baseboard heating to be installed, but the plaintiff denied him access to the premises to install it. He testified that, after he received a report from the City of Taunton Board of Health (“Board of Health”) that the stove used for heating was in disrepair, he

took care of it “right away.” He also testified that he engaged the services of an exterminator for cockroaches three or four times between July 31, 2006 and October 26, 2006.

The plaintiff testified that the stove used for heating the premises did not work properly throughout her tenancy, and that the workers engaged by the defendant to install the electric baseboard heaters refused to do so because she was in the process of moving out of the premises. She testified that the Board of Health “never signed off” that the stove used for heating was ever repaired during her tenancy or that the cockroach infestation had been eliminated.

The Court credits the plaintiff’s testimony on the issues in this action, and finds that the defendant did not introduce credible evidence during the trial on the appeal sufficient to rebut the prima facie effect of the April 12, 2007 judgment. Accordingly, the Court finds that the plaintiff has established her case for damages for breach of the implied warranty of habitability with respect to the heating stove in the premises from September 22, 2006 through February 28, 2007 and the cockroach infestation for the period of September 22, 2006 through October 26, 2006 in the total amount of $2,000.00, plus costs. Accordingly, the Court makes no findings with respect to any other conditions in the premises.

On March 13, 2007, the Court determined that the plaintiff was indigent pursuant to G.L. c. 261. s.27C, and ordered that the entry fee in this action, in the amount of $40.00, be waived. G.L. c. 261, s.27E provides, in pertinent part: “Any party on whose behalf any fees or costs have been waived or paid by the commonwealth pursuant to sections twenty-seven C or twenty-seven F, or both, shall repay the total amount thereof to the clerk…of the court if said party shall have recovered, as a result of the proceeding in which said fees or costs were waived or paid, an amount in excess of three times the total amount of said fees and costs.”

The Court finds that the plaintiff has recovered an amount in this action in excess of three times the total amount of the filing fee that was waived, i.e., $2,000.00, plus costs of $40.00.

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 enter for the plaintiff for damages on her claim for breach of the implied warranty of habitability in the amount of $2,000.00, plus costs.

2. The defendant shall pay the sum of $2,000.00, plus costs, to the plaintiff within thirty (30) days of the date of this order.

3. The plaintiff shall pay the sum of $40.00 in costs to the Clerk’s Office no later than thirty (30) business days following the date that judgment enters.

cc: Danielle Augustine

Oagnes Tagessian

End Of Decision

HOUSING COURT

Mike Bohn PLAINTIFF v. Virginia & Ronald Champerlain DEFENDANTS

Docket # Docket No. 07-SP-00989

Parties: Mike Bohn PLAINTIFF v. Virginia & Ronald Champerlain DEFENDANTS

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: October 11, 2007

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

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

The defendants, Virginia and Ronald Champerlain, have resided at 20 Fruit Street, 2nd Floor, Taunton, MA (“the premises”) as tenants at will since May 1, 2005. The plaintiff, Mike Bohn, is the owner of the premises and is the defendants’ landlord. The rent for the premises is $1,500.00 per month and is due on the first day of each month. The defendants have failed to pay the plaintiff any rent for the months of May 2007 through September 2007, owe a balance of $300.00 for the month of April 2007, and currently owe the plaintiff a total of $7,800.00 in unpaid rent.

The Court finds that, on June 25, 2007, the plaintiff served the defendants with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent-Tenant At Will.

The defendants filed a written answer and counterclaims based on conditions in the premises and violations of G.L. c. 186, s.14, G.L. c. 239, s.2A, G.L. c. 186, s.18 and emotional distress.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant Virginia Champerlain testified that, since the inception of the defendants’ tenancy, the kitchen fuse “blows” if more than one appliance runs at the same time, and that one (1) window in her son’s bedroom has also been broken since the inception of the defendants’ tenancy. She also testified that the ceilings in the kitchen and in her son’s bedroom have leaked for a year, that the dryer’s electric outlet in the basement “burned out” a year ago, and that some of the kitchen and bathroom floor tiles have been defective since November 2006. She testified that she notified the plaintiff of these conditions, and that he promised to

fix them, but did not do so. The defendant Ronald Champerlain testified that the problem with the dryer outlet was caused by a water leak. Sean Champerlain, the defendants’ adult son, testified that he lives in the premises, and that the cracks in his bedroom window have been there since the inception of the defendants’ tenancy. The plaintiff testified that there are a “couple of tiles loose” on the kitchen and bathroom floors, and that he considers this to be “normal wear and tear.” He testified that one (1) pane of glass is broken in Sean Champerlain’s bedroom window, and that he did promise to fix it. He testified that the defendants never informed him that there were leaks from the third floor into their ceilings. He testified that the dryer outlet in the basement does “go on and off,” and testified that the defendants never informed him of any electrical problems in the kitchen of the premises. The Court credits the testimony of the defendant Virginia Champerlain and of Sean Champerlain on the issue of when the defective conditions arose and when the defendants notified the plaintiff of these conditions.

The Court finds that the broken window, the defective kitchen and bathroom tiles, the leaking ceilings, the burned-out dryer outlet in the basement and the defective kitchen fuse are conditions which constitute material breaches of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that the defendants are entitled to a defense to possession and to damages under G.L. c. 239, s.8A based on these conditions.

G.L. c. 186, s.14 provides, in pertinent part: “Any lessor or any landlord of any building or part thereof occupied for dwelling purposes…who is required by law or by the express or implied terms of any contract or lease or tenancy at will to furnish…power…to any occupant of such building or part thereof, who willfully or intentionally fails to furnish such…power…at any time when the same is necessary to the proper or customary use of such building or part thereof, or any lessor or landlord who directly or indirectly interferes with the furnishing by another of such utilities or services, or…who directly or indirectly interferes with the quiet enjoyment of any residential premises by

the occupant…shall…be liable for actual and consequential damages, or three months’ rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee…”

The Court finds that the plaintiff’s failures to repair the defective conditions in the premises for periods of time ranging from 308 days to 857 days constitute serious interferences with the defendants’ quiet enjoyment of the premises. The defendants are not entitled to recover cumulative damages arising from the same facts under every theory of recovery, but they are entitled to recover damages under the theory which results in the largest award of damages. Wolfberg v. Hunter, 385 Mass. 390 (1982). The defendants’ breach of the implied warranty of habitability claim and their interference with quiet enjoyment claim based on the plaintiff’s failure to repair the defective conditions arise from the same set of facts and involve the same damages. The Court will award damages for the plaintiff’s violation of G.L. c. 186, s.14 under the breach of the implied warranty of habitability claim, since that provides the defendants with the largest recovery.

The defendant Virginia Champerlain testified that, at some unspecified time during the defendants’ tenancy, someone in the building turned off the electricity to the defendants’ kitchen at the circuit breaker in the basement. The Court finds that there was no evidence at trial as to who had thrown the circuit breakers in the basement. Accordingly, the Court finds that the defendants are not entitled to damages under G.L. c. 186, s.14 based on this claim.

The defendant Ronald Champerlain testified that the plaintiff locked the door to the basement and did not provide the defendants with a key. He testified that, as a result, he could not restore the electricity to their kitchen when the circuit breakers were thrown, and that the circuit breaker was off for four (4) days. He also testified that the defendants still do not have a key to the basement, and still do not have access to the basement. The plaintiff testified that he gave the defendant Ronald Champerlain a replacement key to the basement on August 7, 2007, the day this Court (Chaplin, J.) ordered him to do so in the civil action between the parties, No. 07-CV-00160. He testified that he keeps the basement locked because there are children in the building. He testified that, in July 2007, when the circuit breakers were off, he had exterminated the basement and no one was allowed access to the basement for 48 hours because he had “bombed” the premises. He

testified that the TMLP repairman came that day, and that he told him of the extermination and offered him access, but he chose not to go into the basement. The Court credits the defendant Ronald Champerlain’s testimony on these issues. The Court finds that the plaintiff’s actions in locking the basement door without giving the defendants a key constitutes a serious interference with the defendants’ quiet enjoyment of the premises. The Court finds that the defendants are entitled to damages under G.L. c. 186, s.14 in the amount of $4,500.00, which represents three (3) months rent, based on this claim.

Diane Welch, Sean Champerlain’s girlfriend, testified that she hears loud music coming from the first and third floor apartments every day, as well as children screaming, and residents yelling and fighting. She testified that she has heard these noises from 9:00 a.m. through 2:00 a.m. The plaintiff testified that the third floor tenants have children, and that there is a certain amount of loud music in the building in which the premises is located, including his own apartment on the first floor of the building. He testified that the music is played only in the daytime, and that he has not received any complaints about the music. The Court credits the testimony of Ms. Welch on this issue, and finds that the plaintiff’s actions in playing loud music in his apartment at all hours of the day and night constitutes a serious interference with the defendants’ quiet enjoyment of the premises. However, “[w]hen three months’ rent has been assessed for one violation, the incentive function of the triple rent provision is fulfilled. Therefore, we hold that a tenant proceeding under s.14 may collect only one such award, covering all claims that the tenant has raised or reasonably could have raised in the suit.” Simon v. Solomon, 385 Mass. 91, 110 (1982). Accordingly, the Court finds that, since the defendants have been awarded three months’ rent for the plaintiff’s actions in locking the basement without giving them a key, the defendants are not entitled to recover additional damages under G.L. c. 186, s.14 based on this claim.

The defendant Ronald Champerlain testified that the third floor tenants throw debris from their apartment onto the defendants’ second floor porch, and that there is debris in the basement. The Court credits this testimony, but finds that there was no evidence at trial that the defendants had notified the plaintiff of the debris that had been thrown onto the second floor porch. Accordingly, the Court finds that the defendants are not entitled to damages under G.L. c. 186, s.14 based on this claim.

The defendant Ronald Champerlain testified that there is cross-metering in the common areas of the building. The plaintiff testified that the defendants thought that the hall lights were on their electric meter, and that he gave the defendants a $20.00 credit on their rent even though he does not believe that there are any common area lights on the defendants’ electric meter. The Court credits the parties’ testimony on these issues, but finds that there was no evidence at trial that there is any cross-metering of electricity at the building in which the premises is located. Accordingly, the Court finds that the defendants are not entitled to damages under G.L. c. 186, s.14 based on this claim.

In their written answer and counterclaims, the defendants

contend that the plaintiff violated G.L. c. 239, s.2A and G.L. c. 186, s.18.

G.L. c. 239, s.2A provides, in pertinent part: “It shall be a defense to an action for summary process that such action or the preceding action of terminating the tenant’s tenancy, was taken against the tenant for the tenant’s act of commencing, proceeding with, or obtaining relief in any judicial or administrative action the purpose of which action was to obtain damages under or otherwise enforce, any federal, state or local law, regulation, by-law, or ordinance, which has as its objective the regulation of residential premises, or…reporting a violation or suspected violation of law as provided in section eighteen of chapter one hundred and eighty-six….The commencement of such 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 commenced, proceeded with or obtained relief in such action, (or)..made such report..shall create a rebuttable presumption that such summary process is a reprisal against the tenant for engaging in such activities…Such presumption may be rebutted only by clear and convincing evidence[2] that such action was not a reprisal against the tenant, and that the plaintiff 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, even if the tenant had not…engaged in such activity.”

G.L. c. 186, s.18 provides, in pertinent part: “Any person or agent thereof who threatens to or takes reprisals against any tenant of residential premises for the tenant’s act of commencing, proceeding with, or obtaining relief in any judicial or administrative action the purpose of which action is to obtain damages under, or otherwise enforce, any federal, state or local law, regulation, by-law or ordinance, which has as its objective the regulation of residential premises; or…reporting to the board of health or, in the city of Boston, to the commissioner of housing inspection or to any other board having as its objective the regulation of residential premises; or reporting or complaining of such violation or a suspected violation in writing to the landlord or to the agent of the landlord…shall be liable for damages which shall not be less than one month’s rent or more than three months’ rent, or the actual damages sustained by the tenant, whichever is greater, and the costs of the suit, including a reasonable attorney’s fee. The receipt of any notice of termination of tenancy except for non-payment of rent or, of increase in rent or, of any substantial alteration in the terms of tenancy within six months after the tenant has…made such report or complaint…shall create a rebuttable presumption that such notice or other action is a reprisal against the tenant for engaging in such activities. Such presumption shall be rebutted only by clear and convincing evidence that such person’s action was not a reprisal against the tenant and that such person 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 tenant engaging in, or the belief that tenants had engaged in, activities protected under this section.”

The plaintiff testified that, in April, 2007, the defendant Ronald Champerlain told him that he was having problems paying the $300.00 balance of the rent for the month of April 2007. He testified that the defendants did not pay any rent in May 2007, and that he told them he would give them some time to make the payment. He testified that he then waited an additional two weeks before he informed the defendants that he would begin the eviction process. The Court credits this testimony.

The Court finds that, on June 25, 2007, the plaintiff served the defendants with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent-Tenant At Will. The Court finds that there was no evidence at trial that the defendants exercised any of their statutory rights within six (6) months prior to the date on which the Notice To Quit was served on them, and, accordingly, are not entitled to the statutory presumption of retaliation under G.L. c. 186, s.18. The Court finds, on the facts of this case, that the defendants have failed to establish by a preponderance of the evidence that the plaintiff retaliated against them. The Court finds, on the facts of this case, that the plaintiff’s sole reason for serving the June 25, 2007 Notice To Quit was that the defendants had failed to pay the rent when due. Accordingly, the Court finds that the defendants are not entitled to a defense to possession under G.L. c. 239, s.2A or to damages under G.L. c. 186, s.18.

In their written answer and counterclaims, the defendants contend that the plaintiff inflicted emotional distress on them. The Court finds that there was no evidence at trial that the defendants identified any action by the plaintiff as an action which caused them any emotional distress. Accordingly, the Court finds that the defendants are not entitled to damages based on this claim.

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 enter for the defendants for possession of the premises under G.L. c. 239, s.8A.

2. Judgment enter for the plaintiff for damages for unpaid rent in the amount of $7,800.00, plus costs in the amount of $184.91, a total of $7,984.91.

3. Judgment enter for the defendants on their counterclaim for breach of the implied warranty of habitability in the amount of $6,785.22.

4. Judgment enter for the defendants on their counterclaim under G.L. c. 186, s.14 in the amount of $4,500.00.

5. Judgment enter for the plaintiff on the defendants’ remaining counterclaims.

6. The foregoing order for judgment paragraphs 2 through 5 result in a net judgment for the defendants for damages in the amount of $3,300.31.

7. Execution issue ten (10) days after the date that judgment enters.

cc: Mike Bohn

Virginia Chamberlain

Ronald Chamberlain

Docket No. 07-SP-00989

Mike Bohn Plaintiff vs. Virginia & Ronald Champerlain Defendants

JUDGMENT

Judgment for the Defendants for possession, pursuant to M.G.L. Chapter 239, s.8A.

Judgment for the Plaintiff for unpaid rent in the sum of $7,800.00, plus costs of $184.91, for a total of $7,984.91.

Judgment for the Defendants for combined counterclaim damages in the sum of $11,285.22; resulting in a net judgment to Defendants of $3,300.31, as provided in paragraphs 3, 4 and 6 of the Court’s Order for Judgment.

Judgment for the Plaintiff as to the Defendants remaining counterclaim issues.

Accordingly, judgment enters at 10:00 a.m. this 12th day of October 2007.

/s/MARK R. JEFFRIES

CLERK MAGISTRATE

Docket #07-SP-00989

October 12, 2007

Mailing List:

Mike Bohn

20 Fruit Street

Taunton, MA 02780

Virginia Champerlain

2nd Floor

20 Fruit Street

Taunton, MA 02780

Ronald Champerlain

2nd Floor

20 Fruit Street

Taunton, MA 02780

————————-

[1] The per diem rental amount is calculated as follows:$1,500.00 x 12 = $18,000.00 ? 365 = $49.32.

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).

End Of Decision

HOUSING COURT

Lisa Emily Brennan and Edward Brennan PLAINTIFFS v. Deborah Perry DEFENDANT

Docket # Docket No. 07-SP-05165

Parties: Lisa Emily Brennan and Edward Brennan PLAINTIFFS v. Deborah Perry DEFENDANT

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: November 1, 2007

ORDER

After hearing on the defendant’s Motion For Award of Counsel Fees, Costs and Expenses, the Court rules as follows: Following a trial on the merits of this action, the defendant prevailed on her counterclaims under G.L. c. 186, s.15B and G.L. c. 93A, each of which provides for the recovery of reasonable attorney’s fees.

In evaluating a request for an award of attorneys 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, 379 Mass. 381, 388-9 (1979). See Heller v. Silverbranch Construction Corp., 376 Mass. 621, 629 (1978). (“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”). However, the actual amount of the attorney’s fee is largely discretionary with the trial judge. Linthicum, supra at 388.

At the hearing on the defendant’s Motion For Award of Counsel Fees, Costs and Expenses, counsel for the parties submitted an Agreement To Pay the defendant’s attorney’s fees, in the total amount of $4,180.00, as follows: $1,045.00 on November 15, 2007; $1,045.00 on December 15, 2007; $1,045.00 on January 15, 2008; and

$1,045.00 on February 15, 2008. After reviewing Ms. Nagl’s Affidavit, the Court finds that an award of attorney’s fees in the amount of $4,180.00 represents time for which Ms. Nagl is entitled to compensation in this action.

The defendant’s Motion For Award of Counsel Fees, Costs and Expenses is ALLOWED, as follows:

1. The Court awards Ms. Nagl reasonable attorney’s fees in the amount of $4,180.00 to be paid by the plaintiff, as follows: $1,045.00 on November 15, 2007; $1,045.00 on December 15, 2007; $1,045.00 on January 15, 2008; and $1,045.00 on February 15, 2008.

2. This Order shall enter nunc pro tunc to September 4, 2007.

cc: John F. Danehey, Esq.

Susan Nagl. Esq.

End Of Decision

HOUSING COURT

Kimberly Brett PLAINTIFF v. Carol Angelini DEFENDANT

Docket # Docket No. 07-SP-01153

Parties: Kimberly Brett PLAINTIFF v. Carol Angelini DEFENDANT

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: September 27, 2007

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

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

The defendant, Carol Angelini, resided at 93 Osborn Street, Second Floor Rear, Fall River, MA (“the premises”) as a tenant at will at all times relevant to this action until she returned the keys to the plaintiff on September 6, 2007. The plaintiff, Kimberly Brett, is the owner of the premises and was the defendant’s landlord. The Court finds that the issue of possession is moot.

The plaintiff testified that the rent for the premises was $550.00 per month through May 2007, and was due on the first day of each month. She testified that, in February 2007, she notified the defendant that the rent would be increased to $700.00 per month effective June 1, 2007, and that the defendant agreed to pay the increased rent. She testified that, at the beginning of May 2007, the defendant notified her that the refrigerator in the premises needed to be repaired. She testified that she told the defendant to call “Bob’s Appliance,” have the repairs made, and send her a receipt for the repairs. She testified that, two (2) days later, the defendant notified her that the refrigerator was working and that there was no need to have it repaired. She testified that the defendant has failed to pay her any rent for the months of June 2007 through September 2007, and currently owes her a total of $2,800.00 in unpaid rent. The defendant testified that she never agreed to the rent increase, and that she has placed her rent for the months of June 2007 through August 2007 in escrow. She testified that she deducted $140.00 from the rent for June 2007 because she repaired the refrigerator. She testified that she vacated the premises on September 1, 2007, and returned the keys to the plaintiff on September 6, 2007. The Court credits the plaintiff’s testimony on these issues.

The Court finds that the defendant agreed to pay $700.00 in rent effective June 1, 2007, and finds that there was no credible evidence that the defendant paid $140.00 to repair the refrigerator in May 2007. The Court finds that, since the defendant did not

return the keys to the premises to the plaintiff until September 6, 2007, she remains responsible for payment of the rent for the month of September 2007. Accordingly, the Court finds that the defendant has failed to pay the plaintiff any rent for the months of June 2007 through September 2007 and currently owes the plaintiff a total of $2,800.00 in unpaid rent.

The defendant testified that she did not receive the 14 Day Notice To Quit for Non-Payment of Rent dated July 20, 2007. The plaintiff testified that she instructed a constable to serve the 14 Day Notice To Quit on July 20, 2007. The Court finds that the constable’s Return of Service, which states that he placed a copy of the Notice To Quit in the defendant’s mailbox at the premises on July 20, 2007, constitutes prima facie evidence of the facts set forth in the return of service as to the manner and date of delivery. G.L. c. 41, s.94. The Court finds that, on July 20, 2007, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent.

The defendant filed a written answer and counterclaims based on conditions in the premises, violations of G.L. c. 186, s.14, and out-of-pocket expenses.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law…There shall be no recovery of possession under this chapter if the amount found by the court to be due the landlord equals or is less than the amount found to be due the tenant or occupant by reason of any counterclaim or defense under this section…”

The defendant testified that the toilet in the apartment directly above the premises leaked for a year, and that the bathroom ceiling “fell on my head.” She testified that there was smoke in the hallway outside her apartment on one (1) Saturday at an unspecified time during her tenancy. The plaintiff testified that the defendant never informed her of any defective condition in the premises at any time during her tenancy. She testified that the first notice she had of any defective conditions in the premises was in early August 2007, when this Court notified her that the City of Fall River Board of Health, Department of Minimum Housing Standards (“Minimum Housing”) had filed a criminal action against her. The Court credits the plaintiff’s testimony on these issues.

The Court finds that, on June 4, 2007, Minimum Housing inspected the premises and found the following conditions: “Calling (sic) in bathroom has damage from leaks. Tenant claims of possible mold developing above drop ceiling in bathroom from leaks from third floor. (Landlord to check.) Trap under kitchen sink leaking. Kitchen sink sprayer not working. Smoke alarms in hallway need to be checked. (Not working.) Fire Dept. notified. Carbon monoxide detector missing in apartment.”

The plaintiff testified that the smoke alarms in the hallway were not working because the main switch for the smoke alarms had

been shut off in the basement, and that the switch has been turned back on. She testified that, after getting the Minimum Housing Report, she attempted to get access to the premises several times to make repairs, but the defendant would not answer the door. The Court credits this testimony.

The Court finds that there was no evidence at trial that the plaintiff knew or should have known of any of the conditions in the Minimum Housing Report until she received it in early August 2007. The Court finds that the non-working smoke detectors in the hallway constitutes a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that there was no evidence at trial as to the length of time the smoke detectors did not work. Accordingly, the Court finds that the defendant is not entitled to damages under G.L. c. 239, s.8A based on this condition.

The Court finds that the defendant denied the plaintiff access to the premises to repair the remaining conditions listed on the Minimum Housing Report. Accordingly, the Court finds that the defendant is not entitled to damages under G.L. c. 239, s.8A based on any of these conditions. The Court finds that there was no evidence at trial with respect to the defendant’s remaining counterclaims. Accordingly, the Court finds that the defendant is not entitled to damages based on any of these claims.

ORDER FOR JUDGMENT

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

1. Judgment enter for the plaintiff for damages for unpaid rent in the amount of $2,800.00, plus costs.

2. Judgment enter for the plaintiff on the defendant’s counterclaims.

3. Execution issue ten (10) days after the date that judgment enters.

cc: Patrick E. Lowney, Esq.

Carol Angelini

End Of Decision

HOUSING COURT

Ronald T. Chamberlin PLAINTIFF v. Michael F. Bohn DEFENDANT

Docket # Docket No. 07-CV-00160

Parties: Ronald T. Chamberlin PLAINTIFF v. Michael F. Bohn DEFENDANT

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: October 12, 2007

ORDER

After hearing on the plaintiff’s Civil Contempt Complaint, the Court rules as follows: On August 7, 2007, this Court (Chaplin, J.) allowed the plaintiff’s Application for Temporary Restraining Order, ordering the defendant to cease and desist from: “1. Failing to allow the plaintiff access to the basement to restore the electrical service to the premises of 20 Fruit St. #2, Taunton, MA 02780. 2. Failing to supply the plaintiff with continuous electrical service at the above premises. 3. Interfering with the plaintiff’s quiet enjoyment specifically by playing loud music at all hours, at the above premises. 4. Interfering with the delivery of the plaintiff’s mail at the above premises. 5. Failing to provide plaintiff with a key to the lock on the basement door forthwith.” On August 14, 2007, this Court (Chaplin, J.) allowed the plaintiff’s Motion that the Temporary Restraining Order continue in effect as a Preliminary Injunction. On August 21, 2007, the plaintiff filed a Civil Contempt Complaint, contending that the defendant had violated the terms of the Temporary Restraining Order and Preliminary Injunction by ” failing to allow access to basement; failing to provide key to basement; interfering with quiet enjoyment on four (4) occasions since August 14, 2007.”

At the hearing on the plaintiff’s Civil Contempt Complaint, the plaintiff testified that he and his wife and son still have no

access to the basement, and still do not have a key to the basement. Mrs. Chamberlin testified that she and her husband and son have not had a key to the basement for approximately one (1) year, and that they still do not have a key to the basement. The defendant testified that he gave the plaintiff a replacement key to the basement on August 7, 2007, the day this Court (Chaplin, J.) ordered him to do so. He testified that he keeps the basement locked because there are children in the building.

Diane Welch testified that she is the girlfriend of the plaintiff’s son, Sean Chamberlin, and that Sean Chamberlin lives at the premises. She testified that, when she is at the premises, she hears loud music coming from the first and third floor apartments every day. She testified that she has heard these noises from 9:00 a.m. through 2:00 a.m. The defendant testified that the third floor tenants have children, and that there is a certain amount of loud music in the building in which the premises is located, including his own apartment on the first floor of the building. He testified that the music is played only in the daytime, and that he has not received any complaints about the music. The plaintiff testified that, on at least four (4) occasions since this Court (Chaplin, J.) granted the Preliminary Injunction on August 14, 2007, he has heard loud music coming from the first and third floor apartments. The Court credits the testimony of Ms. Welch and the plaintiff on this issue.

The Court finds the defendant in contempt of the Preliminary Injunction issued on August 14, 2007 in the following respects:

1. The defendant Michael F. Bohn has failed to provide the plaintiff Ronald T. Chamberlin with a key to the basement of the premises; and

2. The defendant has interfered with the plaintiff’s quiet enjoyment of the premises by playing loud music at unreasonable hours of the day and night in his apartment at the premises on at least four (4) occasions since August 14, 2007.

The Court finds that the defendant may purge his contempt as follows:

1. By providing the plaintiff with a key to the basement of the premises forthwith; and

2. By refraining from playing loud music at the premises between the hours of 10:00 p.m. and 7:00 a.m. pending further order of the Court.

3. This matter shall be set down for hearing on the issue of whether the defendant has purged his contempt on Tuesday, December 4, 2007 at 2:00 p.m.

cc: Ronald T. Chamberlin

Michael F. Bohn

Docket #07-CV-00160

October 12, 2007

Mailing List:

Ronald T. Chamberlin

20 Fruit Street

Taunton, MA 02780

Michael F. Bohn

20 Fruit Street

Taunton, MA 02780

End Of Decision

HOUSING COURT

Angelina Ferreira v. Gregory Croteau and Sirena Lagasse

Docket # 07-SP-00731

Parties: Angelina Ferreira v. Gregory Croteau and Sirena Lagasse

Judge: /s/ ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: June 21, 2007

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

This is a summary process action in which the plaintiff seeks to recover possession of the premises from the defendants and damages for unpaid rent.

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

The defendants, Gregory Croteau and Sirena Lagasse, have resided at 609 Eastern Ave., 2nd Flr., Fall River, MA (‘the premises’) as tenants at will since October 21, 2006. The plaintiff, Angelina Ferreira, is the owner of the premises and is the defendants’ landlord. The rent for the premises is $100.00 per week and is due each Saturday for the week in advance. The defendants have failed to pay the plaintiff any rent for the weeks beginning May 5, 2007 through June 16, 2007, and currently owe the plaintiff a total of $700.00 in unpaid rent.

The Court finds that, on May 16, 2007, the plaintiff served the defendants with a legally sufficient 14 Day Notice To Quit for Rent.

At trial, the defendant Sirena Lagasse testified that the defendants withheld their rent due to defective conditions in the premises.

The defendant Sirena Lagasse testified that the water in the premises has been rusty since the inception of the defendants’ tenancy, and that there are particles floating in the water. She testified that she notified the plaintiff of this condition a month after moving into the premises. She testified that the plaintiff told her that she had to pay the $16.00 bill for the water tank rental before the tank could be changed. She testified that, at some unspecified time during the defendants’ tenancy prior to December 25, 2006, the door to the premises was broken during a burglary. She also testified that, in February 2007, she notified

the plaintiff that there are electrical problems in the premises which result in fuses blowing. She testified that none of these conditions has been repaired. Maria Raposo, the plaintiff’s daughter, testified that, at the inception of the defendants’ tenancy, she informed the defendant Sirena Lagasse that the monthly rental for the water tank was $13.45, and that the defendant Sirena Lagasse agreed to pay the monthly water tank rental. She testified that, when the defendant Sirena Lagasse informed her that the water was rusty, she told her that, as soon as she paid the water tank rental bill, the plaintiff would arrange for the tank to be changed. She testified that the rental company would not change the tank until the bill was paid. She testified that the door to the premises is not broken, that it closes, is not cracked, and is not a violation of any applicable code. She also testified that the defendants never notified the plaintiff of any problems with the electricity. The Court credits the testimony of Ms. Raposo on these issues.

The Court finds that the defendants prevented the condition of the water tank from being repaired. Accordingly, the Court finds that the defendants are not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this condition.

The Court finds that there was no credible evidence at trial that the condition of the door to the premises was serious, or that this condition endangered the health or safety of the defendants, or that it diminished the fair rental value of the premises. Accordingly, the Court finds that the existence of this condition did not constitute a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973).

The Court finds that there was no credible evidence at trial that the plaintiff knew or should have known of any electrical problems in the premises. Accordingly, the Court finds that the defendants are not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this condition.

The Court finds that the plaintiff has established her case for possession of the premises and damages for unpaid rent in the amount of $700.00, plus costs.

ORDER FOR JUDGMENT

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

1. Judgment enter for the plaintiff for possession of the premises and damages for unpaid rent in the amount of $700.00, plus costs.

2. Judgment enter for the plaintiff on the defendants’ counterclaims.

3. Execution issue ten (10) days after the date that judgment enters.

07-SP-00731

Angelina Ferreira vs. Gregory Croteau and Sirena Lagasse

JUDGMENT

Judgment for the Plaintiff for possession, unpaid rent of $700.00, plus costs.

Judgment for the Plaintiff as well, as to the Defendants’ counterclaim issues.

Accordingly, judgment enters at 10:00 a.m. this 22nd day of June 2007.

/s/ MARK R. JEFFRIES

CLERK MAGISTRATE

June 22, 2007

End Of Decision

HOUSING COURT

Kira Kresowaty v. Melissa Ferreira

SOUTHEASTERN DIVISION

Docket # 07-SP-00996

Parties: Kira Kresowaty v. Melissa Ferreira

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: September, 2007

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

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

The defendant, Melissa Ferreira, resided at 223 Brightman Street, Apt. 1, Fall River, MA (“the premises”) as a tenant under a lease from September 1, 2006 through July 14, 2007. The plaintiff, Kira Kresowaty, purchased the building in which the premises is located on March 31, 2007 and was the defendant’s landlord. The rent for the premises was $800.00 per month and was due in two (2) installments of $400.00 each, due on the first and fifteenth days of each month, with a three (3) day grace period for each payment. The Court finds that the defendant has failed to pay the plaintiff any rent for the month of June 2007 and for the first half of July 2007, and currently owes the plaintiff a total of $1,200.00 in unpaid rent.

The Court finds that, on June 20, 2007, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent.

The defendant filed a written answer and counterclaims based on breach of the implied warranty of habitability and violations of G.L. c. 186, s.15B.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant testified that, when the plaintiff purchased the premises, she notified her that there was a roof leak, and that she notified the plaintiff in writing on June 11, 2007 that she was withholding her rent because there were pipes leaking under the stairs at the premises. The plaintiff testified that she received the defendant’s written notification on June 12, 2007, and that, on June 13, 2007, she was present during an inspection of the premises, and determined that there was no leak. She also testified that she had no prior notice of any leak at the premises. The Court credits the plaintiff’s testimony on these issues.

The Court finds that there was no credible evidence at trial that there was any leak at the premises which was serious, or that it endangered the health or safety of the defendant, or that it diminished the fair rental value of the premises. Accordingly, the Court finds that the existence of this condition did not constitute a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this condition.

The defendant testified that, on March 30, 2007, Rachel Smith,

the prior owner of the premises, transferred the defendant’s security deposit, in the amount of $800.00, to the plaintiff. She testified that she asked the plaintiff in April 2007 when she would put the security deposit into an account, and that the plaintiff told her she had not had the chance to do so. She testified that, on May 21, 2007, the plaintiff informed the defendant that she would apply the security deposit to the rent for June 2007,

The plaintiff testified that, on April 20, 2007, she informed the defendant that she would treat her security deposit as a last month’s rent, and that she would apply $400.00 to the balance of unpaid rent for April 2007, and then apply the other $400.00 to cover the rent which would be due on May 15, 2007. She testified that this would result in the defendant paying rent in advance beginning on June 1, 2007, instead of paying in the arrears. The Court credits the plaintiff’s testimony on these issues, and finds that it is a reasonable inference that, on April 20, 2007, the parties agreed that the plaintiff would apply $400.00 of the defendant’s security deposit to pay the balance of unpaid rent due in April 2007, and would apply the remaining $400.00 of the security deposit to the defendant’s rental payment due May 15, 2007. Accordingly, the Court finds that the defendant is not entitled to recover damages under G.L. c. 186, s.15B based on the plaintiff’s handling of the defendant’s security deposit.

The Court finds that the plaintiff has established her case for possession of the premises and damages for unpaid rent in the amount of $1,200.00, plus costs.

ORDER FOR JUDGMENT

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

1. Judgment enter for the plaintiff for possession of the premises and damages for unpaid rent in the amount of $1,200.00, plus costs.

2. Judgment enter for the plaintiff on the defendant’s counterclaims.

3. Execution issue ten (10) days after the date that judgment enters.

End Of Decision

HOUSING COURT

John Hinn Real Estate v. Kristine Fortin and Mindi Jalbert

SOUTHEASTERN DIVISION

Docket # 07-SP-03335

Parties: John Hinn Real Estate v. Kristine Fortin and Mindi Jalbert

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: October 19, 2007

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

This is a summary process action in which the plaintiff seeks to recover possession of the premises from the defendants and damages for unpaid rent.

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

The defendants, Kristine Fortin and Mindi Jalbert, have resided at 85 Purchase Street, 2nd floor, New Bedford, MA as tenants under a lease since June 1, 2007. The plaintiff, John Hinn Real Estate, is the owner of the premises and is the defendant’s landlord. The rent for the premises is $550.00 per month and is due on the first day of each month.

Trumilla Hinnant testified that she is one of the owners of the plaintiff. She testified that the defendants have failed to pay the plaintiff any rent for the months of August 2007 through October 2007, owe a balance of $138.00 for the month of July 2007, and currently owe the plaintiff a total of $1,788.00 in unpaid rent. The defendants testified that they have not paid the plaintiff any rent for the months of August 2007 through October 2007, and currently owe the plaintiff a total of $1,650.00 in unpaid rent. The Court credits Ms. Hinnant’s testimony on these issues, and finds that the defendants have failed to pay the plaintiff any rent for the months of August 2007 through October 2007, owe a balance of $138.00 for the month of July 2007, and currently owe the plaintiff a total of $1,788.00 in unpaid rent.

The Court finds that, on September 4, 2007, the plaintiff served the defendants with a legally sufficient 14 Day Notice To Terminate Tenancy Under a Lease–Non-Payment of Rent.

At trial, the defendant Kristine Fortin testified that there are defective conditions in the premises.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant Kristine Fortin testified that she notified the plaintiff in the second week of July 2007 that there were cockroaches in the kitchen of the premises, and that, one week later, Ms. Hinnant gave the defendants “bombs” and boric acid to exterminate the cockroaches. She testified that she notified the plaintiff two weeks later that there were still cockroaches in the kitchen of the premises. She testified that she called the City of New Bedford Department of Inspectional Services Environmental Health Division (“Environmental Health”) in mid-September 2007, but that the Environmental Health inspector did not come for three weeks, and that the plaintiff had a professional exterminator at the premises on October 10, 2007. Ms. Hinnant testified that, after the defendants notified the plaintiff that the first application of boric acid and the “bombs” had not eliminated the cockroach problem, the plaintiff’s maintenance manager gave the defendants more “bombs” and boric acid, and that the defendants did not notify the plaintiff that the second application had not worked. She testified that, following the plaintiff’s receipt of the Environmental Health Report, the plaintiff engaged the services of a professional exterminator on October 10, 2007. The Court credits Ms. Hinnant’s testimony on these issues.

The Court finds that, on October 2, 2007, Minimum Housing inspected the premises and found the following condition: “Roaches evident in kitchen area and cabinets.”

The Court finds that the presence of cockroaches in the kitchen of the premises is a condition which constitutes a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that there was no evidence at trial that the plaintiff knew or should have known of this condition until the defendants notified the plaintiff in mid-July 2007, and again when Environmental Health notified the plaintiff of the recurrence of this condition on October 2, 2007. The Court finds that the defendants were in arrears in their rent at the time the plaintiff was notified of this condition. Accordingly, the Court finds that the defendants are not entitled to a defense to possession under G.L. c. 239, s.8A based on this condition. The Court finds that

the defendants are entitled to damages under G.L. c. 239, s.8A based on this condition.

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 enter for the plaintiff for possession of the premises and damages for unpaid rent in the amount of $1,788.00, plus costs in the amount of $205.00, a total of $1,993.00.

2. Judgment enter for the defendants on their counterclaim for breach of the implied warranty of habitability in the amount of $81.30.

3. The foregoing order for judgment paragraphs 1 and 2 result in a net judgment for the plaintiff for damages in the amount of $1,706.70, plus costs in the amount of $205.00, a total of $1,911.70.

4. Execution issue ten (10) days after the date that judgment enters.

————————-

[1] The per diem rental amount is calculated as follows:$550.00 x 12 = $6,600.00 ? 365 = $18.08.

End Of Decision

HOUSING COURT

Jerry Linhares and Laurie Griffin-Linhares v. James Lake

SOUTHEASTERN DIVISION

Docket # 07-SP-02959

Parties: Jerry Linhares and Laurie Griffin-Linhares v. James Lake

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: July 16, 2007

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

This is a summary process action in which the plaintiffs seek to recover possession of the premises from the defendant and damages for unpaid rent.

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

The defendant, James Lake, has resided at 123 Smith Street, 1st Floor, Apt. 1, New Bedford, MA (“the premises”) as a tenant at will at all times relevant to this action. The plaintiffs, Jerry Linhares and Laurie Griffin-Linhares, are the owners of the premises and are the defendant’s landlords. The rent for the premises is $750.00 per month and is due on the third day of each month. The defendant has failed to pay the plaintiff any rent for the months of May 2007 through July 2007 and currently owes the plaintiffs a total of $2,250.00 in unpaid rent.

The Court finds that, on May 15, 2007, the plaintiffs served the defendant with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent.

At trial, the defendant testified that the plaintiff Jerry Linhares has jumped up and down on the floor above him, and has yelled at him from the second floor porch. He also testified that the plaintiffs have shut off the water in the premises.

G.L. c. 186, s.14 provides, in pertinent part: “Any lessor or landlord of any building or part thereof occupied for dwelling purposes… who is required by law or by the express or implied terms of any contract or lease or tenancy at will to furnish water…to any occupant of such building or part thereof, who willfully or intentionally fails to furnish such water…at any time when the same is necessary to the proper or customary use of such building or part thereof,…or any lessor or landlord who directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant…shall…be liable for actual and consequential damages, or three month’s rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee, all of which may be applied in setoff to or in recoupment against any claim for rent owed or owing…”

The defendant testified that, on June 17, 2007 at approximately 2:30 a.m., the plaintiff Jerry Linhares jumped up and down on the floor above his unit, yelling and screaming at him. He testified that he called the New Bedford Police Department, and that the defendant Jerry Linhares repeated his actions an hour later. He testified that, on or about July 1, 2007, the plaintiff Jerry Linhares yelled at him from the upstairs porch. The plaintiff Laurie Griffin-Linhares testified that she was not at home on June 17, 2007 and has no knowledge of whether the plaintiff Jerry Linhares jumped up and down on the floor. She testified that, on July 1, 2007, she heard the plaintiff Jerry Linhares yelling at the defendant from the porch, that she told him to stop, and that he did. She testified that, since December 2006, the plaintiffs have had a lot of controversy with respect to the

defendant, that they had been friends and he and the plaintiff Jerry Linhares had worked together, but that the situation for the plaintiffs currently is frustrating because they cannot pay their mortgage without the rental income from the first floor apartment. The Court credits the testimony of the parties on these issues.

The defendant testified that, on July 4, 2007, the plaintiffs shut off the water at the premises, that he called the police and that the water was restored. The plaintiff Laurie Griffin-Linhares testified that, on July 4, 2007, she heard water running continuously in the first floor apartment for over three hours. She testified that she believed that the toilet in the first floor apartment was running, and that she shut off the water to that apartment for a few minutes to check it out. She testified that she attempted to notify the defendant that she was doing this, but that he did not answer her telephone calls. She testified that the water was off for a total of approximately 20 minutes. The Court credits the testimony of the plaintiff Laurie Griffin-Linhares on these issues.

While G.L. c. 186, s.14 does not require that the landlord’s conduct be intentional, Simon v. Solomon, 386 Mass. 91 (1983), it does require that the landlord’s conduct cause a serious interference with the tenant’s quiet enjoyment. Doe v. New Bedford Housing Authority, 417 Mass. 263, 284-285 (1994); Lowery v. Robinson, 13 Mass.App.Ct. 982 (1982). “The covenant of quiet enjoyment protects a tenant’s right to freedom from serious interference with his tenancy-acts or omissions that impair the character and value of the leased premises. (citations omitted).” Doe v. New Bedford Housing Authority, supra at 285.

The Court finds that the actions of the plaintiff Jerry Linhares in jumping up and down on the floor during one (1) night of the defendant’s tenancy and yelling at the defendant from the second floor porch on one (1) other occasion during his tenancy do not, under all of the circumstances of this case, constitute a serious interference with the defendant’s quiet enjoyment of the premises. Accordingly, the Court finds that the defendant is not entitled to damages under G.L. c. 186, s.14 based on this claim.

The Court finds that the plaintiff Laurie Griffin-Linhares’ action in shutting off the water in the premises for approximately 20 minutes on one (1) occasion during the defendant’s tenancy for the purpose of investigating whether the toilet was running does not constitute a serious interference with the defendant’s quiet enjoyment of the premises. Accordingly, the finds that the defendant is not entitled to damages under G.L. c. 186, s.14 based on this claim.

The Court finds that the plaintiffs have established their case for possession of the premises and damages for unpaid rent in the amount of $2,250.00, plus costs.

ORDER FOR JUDGMENT

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

1. Judgment enter for the plaintiffs for possession of the premises and damages for unpaid rent in the amount of $2,250.00, plus costs.

2. Judgment enter for the plaintiffs on the defendant’s counterclaims.

3. Execution issue ten (10) days after the date that judgment enters.

End Of Decision

HOUSING COURT

June Maher PLAINTIFF/ DEFENDANT-IN-COUNTERCLAIM v. Denise Miner-Hart DEFENDANT/ PLAINTIFF-IN-COUNTERCLAIM

Docket # Docket No. 06-CV-00040

Parties: June Maher PLAINTIFF/ DEFENDANT-IN-COUNTERCLAIM v. Denise Miner-Hart DEFENDANT/ PLAINTIFF-IN-COUNTERCLAIM

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: June 14, 2007

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

This is a civil action in which the plaintiff has asserted claims based on breach of the implied warranty of habitability, interference with quiet enjoyment, retaliation, intentional infliction of emotional distress, negligent infliction of emotional distress, violations of the security deposit statute and violations of G.L. c. 93A. All of these claims, with the exception of the G.L. c. 93A claim, were tried to a jury. The G.L. c. 93A claim was reserved for decision by the judge. After a three-day jury trial, the jury returned a verdict in favor of the defendant on the claims of breach of the implied warranty of habitability, interference with quiet enjoyment, retaliation, intentional infliction of emotional distress, and negligent infliction of emotional distress, and returned a verdict in favor of the plaintiff on the security deposit claim.

The jury found that the defendant failed to comply with G.L. c. 186, s.15B(2)(a) in that she did not give the tenant a receipt indicating the amount of the security deposit, the name of the person receiving it, the date on which it was received, and a description of the premises leased or rented, signed by the person who received the security deposit. The jury also found that the defendant failed to comply with G.L. c. 186, s.15B(3)(a) in that she did not give the tenant a receipt for the security deposit, indicating the name and location of the bank and the amount and account number of the deposit.[1] The plaintiff contends that these violations of G.L. c. 186, s.15B also constitute violations of G.L. c. 93A, s.9 and 940 CMR 3.17(4)(b) and 3.17(4)(k).

The jury also returned a verdict in favor of the plaintiff-in-counterclaim on her counterclaim for damages to the premises in the amount of $500.00.

Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds as follows on the plaintiff’s G.L. c. 93A claim:

The defendant is the owner of a single family dwelling located at 79 Washington Street, Plainville, MA (“the premises”) and was the plaintiff’s landlord. The plaintiff occupied the premises as a tenant under a lease from August 16, 2004 through June 30, 2005. At trial, the defendant testified that, prior to the defendant’s occupancy of the premises, she had never rented it to anyone and had, in fact, occupied it herself until that time. The Court credits this testimony.

At trial, the defendant also testified that, in addition to the premises, she owns one (1) parcel of commercial real estate located next door to the premises, and is a joint owner of a single family residence in North Attleborough, MA. She testified that she does not own any other real property in Massachusetts. The Court credits this testimony.

The plaintiff has asserted a claim in this action under the Massachusetts Consumer Protection statute, G.L. c. 93A, which prohibits anyone from using unfair or deceptive acts or practices in the course of business dealings. In addition, the Attorney General, acting pursuant to statutory authority, has promulgated regulations, 940 CMR 3.00 et seq., that identify conduct on the part of an owner of residential property[2] that is deemed to be an unfair or deceptive act or practice.

It is well-established in Massachusetts that, in a civil case, the party asserting a claim has the burden of proving the facts which establish the other party’s liability on that claim.

Smith v. Hill, 232 Mass. 188, 190 (1919); Sullivan v. Quinlivan, 308 Mass. 339, 342 (1941) (“One who brings a proceeding seeking relief under a statute commonly must prove himself within its terms.”). In an action under G.L. c. 93A, the plaintiff is entitled to recover from the defendant only if the defendant is “engaged in trade or commerce” within the meaning of the statute. “Certain standards apply for determining whether a party is engaged in ‘trade or commerce.’ Factors to be considered include the character of the party, the nature of the transaction, the activities engaged in by the party, and whether the transaction was motivated by business or personal reasons. (citation omitted).” Barrett v. Massachusetts Insurers Insolvency Fund, 412 Mass. 774, 775-76 (1992). See also Billings v. Wilson, 397 Mass. 614 (1986); Lantner v. Carson, 374 Mass. 606 (1978).

The Court finds that there was no evidence at trial as to whether the defendant, who owns two (2) single family dwellings in Massachusetts, is engaged in the trade or business of residential real estate within the meaning of G.L. c. 93A and the applicable Attorney General’s regulations.[3] The Court finds that there was no evidence at trial as to whether the defendant resides in the North Attleborough residence, or whether the rental of the premises to the plaintiff was motivated by business or personal reasons. Accordingly, the Court finds that the plaintiff has not satisfied her burden of proving that the defendant is engaged in the trade or business of the rental of residential real estate and finds that the defendant is not subject to the provisions of G.L. c. 93A.

Since the defendant is not subject to the provisions of G.L. c. 93A, the damages to be awarded to the plaintiff for the defendant’s violations of G.L. c. 186, s.15B are governed solely by that statute.

G.L. c. 186, s.15B(2)(b) provides: “Any lessor or his agent who receives a security deposit from a tenant or prospective tenant shall give said tenant or prospective tenant at the time of receiving such security deposit a receipt indicating the amount of such security deposit, the name of the person receiving it and, in the case of an agent, the name of the lessor for whom such security deposit is received, the date on which it is received, and a description of the premises leased or rented. Said receipt shall be signed by the person receiving the security deposit.” The Court finds that G.L. c. 186, s.15B(2)(b) does not provide for an award of damages when the landlord does not provide the tenant with the receipt required by this sub-section. Accordingly, the Court finds that the plaintiff is not entitled to recover damages under G.L. c. 186, s.15B(2)(b) based on this statutory violation.

G.L. c. 186, s.15B(3)(a) provides: “Any security deposit received by such lessor shall be held in a separate, interest-bearing account in a bank, located within the commonwealth under such terms as will place such deposit beyond the claim of creditors of the lessor, including a foreclosing mortgagee or trustee in bankruptcy, and as will provide for its transfer to a subsequent owner of said property. A receipt shall be given to the tenant within thirty days after such deposit is received by the lessor which receipt shall indicate the name and location of the bank in which the security deposit has been deposited and the

amount and account number of said deposit. Failure to comply with this paragraph shall entitle the tenant to immediate return of the security deposit.” The Court finds that there was no evidence at trial that the defendant had not already returned the plaintiff’s security deposit to her, i.e., at the end of her tenancy. Accordingly, the Court finds that the plaintiff is not entitled to recover damages under G.L. c. 186, s.15B(3)(a) based on this statutory violation.

The Court finds that neither G.L. c. 186, s.15B2(b) nor G.L. c. 186, s.15B(3)(a) provides for the recovery of attorney’s fees. Accordingly, the Court finds that the plaintiff is not entitled to recover attorney’s fees based on either of these statutory violations.

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 enter for the plaintiff on her claims under G.L. c. 186, s.s.15B(2)(b) and (3)(a) with no award of damages, plus costs in the amount of $140.00.

2. Judgment enter for the defendant on the plaintiff’s remaining claims.

3. Judgment enter for the defendant on her counterclaim for damages in the amount of $500.00.

4. The above orders for judgment paragraphs 1 through 3 result in a net judgment for the defendant in the amount of $360.00.

5. Execution issue thirty (30) days after the date that judgment enters.

cc: David O. Scott, Esq.

Denise Miner-Hart

Docket No. 06-CV-00040

June Maher Plaintiff/Defendant-in-Counterclaim vs. Denise Miner-Hart Defendant/Plaintiff-in-Counterclaim

JUDGMENT

This action came on for trial by jury, Chaplin, J. presiding, and for trial before the Court, Chaplin, J. presiding, on the Plaintiff’s claim under G.L. c. 93A, the issues having been duly tried/heard and findings having been duly rendered, it is ORDERED and ADJUDGED:

Judgment for the Plaintiff on her claim under M.G.L. Chapter 186, s.15B(2)(b) and (3)(a) with no award of damages, plus costs in the sum of $140.00.

Judgment for the Defendant however, as to the Plaintiff’s remaining claims.

Judgment for the Defendant on her counterclaim issue for damages in the sum of $500.00; resulting in a net judgment to said Defendant of $360.00, as set forth in paragraph 4 of the Court’s Order for Judgment.

Dated at Fall River, Massachusetts this 14th day of June

2007.

/s/MARK R. JEFFRIES

CLERK MAGISTRATE

June 14, 2007 Docket #06-CV-00040

David O. Scott, Esq.

Law Office of David O. Scott, P. C.

200 Chauncy Street, Suite 100

Mansfield, MA 02048

Denise Miner-Hart

647 Broadway Extension

North Attleboro, MA 02760

————————-

[1] The jury did not find that the defendant violated that portion of G.L. c. 186, s.15B(3)(a) which governs the placement of a security deposit in an escrow account.

[2] 940 CMR 3.01 defines “owner” as “Any person who holds title to one or more dwelling units in any manner, including, but not limited to, a partnership, corporation or trust….”

[3] Since 940 CMR 3.01 defines “owner” as “[a]ny person who holds title to one or more dwelling units in any manner,” (emphasis supplied), the Court finds that the defendant’s ownership of one (1) parcel of commercial property in Massachusetts is not determinative on the issue of whether she is engaged in the trade or commerce of residential real estate, so as to be subject to G.L. c. 93A.

End Of Decision

HOUSING COURT

Yolene Louis PLAINTIFF v. Wendy Reis DEFENDANT

Docket # Docket No. 07-SP-03261

Parties: Yolene Louis PLAINTIFF v. Wendy Reis DEFENDANT

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: October 16, 2007

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

This is a summary process action in which the plaintiff seeks to recover possession of the premises from the defendant and damages for unpaid rent.

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

The defendant, Wendy Reis, has resided at 307 Mill Street, Apt. #3, New Bedford, MA (“the premises”) as a tenant under a lease since May 1, 2007. The plaintiff, Yolene Louis, is the owner of the premises and is the defendant’s landlord. The rent for the premises is $800.00 per month and is due on the first day of each month. The defendant has failed to pay the plaintiff any rent for the months of August 2007 through October 2007, owes a balance of $100.00 for the month of July 2007, and currently owes the plaintiff a total of $2,500.00 in unpaid rent.

The Court finds that, on August 20, 2007, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Terminate Tenancy Under a Lease for Non-Payment of Rent.

At trial, the defendant testified that there are cockroaches, mice and rats in the premises.

a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant testified that she first noticed a problem with cockroaches, mice and rats in the premises in early August 2007 after the first and second floor tenants moved out. She testified that there are cockroaches in the televisions, and a nest in the couch, that the mice eat through the food and there are mouse droppings in the premises. She testified that the plaintiff exterminated the premises with “bombs” without notifying her that she was going to do so. She testified that a rat bit her approximately one (1) month ago while she was in the premises, but that she did not tell the plaintiff that a rat had bitten her. Gary Reis testified that he also lives in the premises, and that, at an unspecified time, he saw a rat in the premises. The plaintiff testified that the defendant did not notify her of any problem in the premises until September 28, 2007, but that she herself noticed cockroaches in the building in which the premises is located after the first and second floor tenants moved out, so she exterminated by using “bombs.” She testified that she gave the defendant notice of the extermination by leaving a note on her apartment door, and that the defendant did not allow her access to exterminate in her apartment. The Court credits the plaintiff’s testimony on these issues.

The Court finds that the presence of cockroaches, mice and rats in the premises is a condition which constitutes a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that there was no evidence at trial that the defendant notified the plaintiff that the plaintiff’s efforts to exterminate were not effective until September 28, 2007. The Court finds that the defendant is not entitled to a defense to possession under G.L. c. 239, s.8A based on this condition since the defendant was already in arrears in her rent at the time the plaintiff learned of the existence of this condition in early August 2007. The Court finds that the defendant is not entitled to damages under G.L. c. 239, s.8A based on this condition since she denied the plaintiff access to the premises to exterminate.

The Court finds that the plaintiff has established her case for possession of the premises and damages for unpaid rent in the amount of $2,500.00, plus costs.

ORDER FOR JUDGMENT

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

1. Judgment enter for the plaintiff for possession of the premises and damages for unpaid rent in the amount of $2,500.00, plus costs.

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

cc: Yolene Louis

Wendi Reis

End Of Decision

HOUSING COURT

Edmund J. Maher PLAINTIFF v. Mary Ann GaCosta DEFENDANT

Docket # Docket No. 07-SP-01205

Parties: Edmund J. Maher PLAINTIFF v. Mary Ann GaCosta DEFENDANT

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: November 1, 2007

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

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

The defendant, Mary Ann GaCosta, has resided at 27 Thompson Street, Apt. 1R, Fall River, MA (“the premises”) as a tenant at will since April 29, 2006. The plaintiff, Edmund J. Maher, is the owner of the premises and is the defendant’s landlord. The rent for the premises is $575.00 per month and is due on the first day of each month, no later than the third day of each month. At trial, the parties, through counsel, stipulated that the defendant has not paid the plaintiff a total of $7,500.00 in unpaid rent. Applying the defendant’s rental payments during her tenancy to the most aged balance, the Court finds that the defendant has failed to pay the plaintiff any rent for the months of September 2006 through October 2007, owes a balance of $25.00 for the month of August 2006, and currently owes the plaintiff a total of $7,500.00 in unpaid rent.

The Court finds that, on July 23, 2007, the plaintiff served the defendant with a legally sufficient 15 Day Notice To Pay Rent or Vacate.

The defendant filed a written answer and counterclaims based on conditions in the premises and violations of G.L. c. 186, s.14, G.L. c. 239, s.2A, G.L. c. 186, s.18, G.L. c. 93A, and infliction of severe emotional distress, and compensation for personal possessions she lost as the result of the defective conditions.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant testified that, in mid-May 2006, she was bitten by an insect in the premises. She testified that the problem got worse, and that she found an insect in her bed. She testified that she called the City of Fall River Inspectional Services Department, Minimum Housing Division (“Minimum Housing”) with respect to the insect infestation on May 23, 2006. She testified that she also spoke to the plaintiff about the insect infestation that day and that he told her he would take care of the problem, so she told Minimum Housing there was no need to inspect the premises. The defendant testified that the plaintiff told her to call an exterminator to have the premises inspected. She testified that Bristol County Exterminating inspected the premises in May 2006 and found an insect which the exterminator identified to her as a bedbug. She testified that Bristol County Exterminating sprayed the premises in May 2006, and this worked for “a while,” but then she was bitten again in June 2006. She testified that she notified the plaintiff, who told her to call the exterminators again. She

testified that Bristol County Exterminating returned to the premises in June 2006 and sprayed again, but that the problem recurred in July 2006. The defendant testified that she called the plaintiff again and that he asked her to “call around” for another exterminator. She testified that she did so, and that, in July 2006, American Exterminating, Inc. sprayed the premises. She testified that the problem recurred in mid-August 2006, and that American Exterminating, Inc. came to the premises again in September 2006. She testified that, on this occasion, American Exterminating, Inc. did not spray the premises. The defendant testified that the bedbug infestation kept getting worse, and that she orally notified the plaintiff in August 2006 that she would withhold her rent unless the problem was solved. The defendant testified that, although she kept complaining to the plaintiff about the bedbug problem, there was no extermination at the premises between October 2006 and September 2007. She testified that she has not paid the plaintiff any rent since November 2006. The defendant testified that she notified Minimum Housing again of the bedbug infestation in August 2007, and that, when Minimum Housing inspected the premises, the inspector found bedbugs. She testified that her rent is in an escrow account, but she has used some of it to replace her bed, towels and sheets. The Court credits this testimony.

The Court finds that, on August 23, 2007, the Board of Health inspected the premises and found the following conditions: “1. Bed Bug infestation in apartment. Proof of professional extermination needed. 2. Light missing in closet. 3. No light for cellar stairway. 4. Plaster falling on walls in cellar. 5. Cellar has holes in flooring. 6. Owner’s meter missing for electrical boxes. Cellar lights on tenant’s meter. (Referred to National Grid.) 7. Carbon monoxide detector missing. 8. Please remove cans of paint in cellar. Fire hazard. 9. Window in cellar not fitted properly. 10. Remove electrical heater under stairs in cellar. 11. Cellar door has holes. Make rodent proof.”

The plaintiff testified that, when American Exterminating, Inc. inspected the premises for bedbugs on September 25, 2006, the inspector thought that the problem might be fleas. He testified that he used “flea bombs” in the premises several times for a four (4) month period after the defendant told him the problem was on-going. He testified that, in April 2007, the defendant told him she did not have a problem with insects any more, so he thought the problem was solved. He testified that he got a letter from the defendant in late June 2007, notifying him that she was withholding her rent. He testified that the next time an exterminator sprayed the premises after September 25, 2006 was A&A Termite and Pest Control in July 2007, and that the inspector sent him a written report that there was no bedbug infestation in the premises. The plaintiff testified that, after Minimum Housing inspected the premises, he is now billed for all of the defendant’s electricity, including the first floor hallway light. He testified that there is no lighting in the basement on the defendant’s meter, there is a separate meter in his name and the basement lighting is on that meter. He testified that he repaired most of the August 23, 2007 Minimum Housing violations “immediately,” but has not repaired the light in the defendant’s closet, the flooring in the basement and

the window in the basement.

The Court finds that the conditions listed in the August 23, 2007 Minimum Housing Report which the plaintiff has repaired are conditions which, in the aggregate, constitute material breaches of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that there was no evidence at trial as to when the plaintiff made the repairs to these violations, and, accordingly, is unable to award the defendant any damages under G.L. c. 239, s.8A based on these conditions.

The Court finds that the bedbug infestation, and the remaining conditions listed in the August 23, 2007 Minimum Housing Report which the plaintiff has not repaired are conditions which, in the aggregate, constitute material breaches of the implied warranty of habitability. Id. The Court finds that the defendant is entitled to a defense to possession under G.L. c. 239, s.8A based on the bedbug infestation and to damages under G.L. c. 239, s.8A based on the remaining conditions listed in the August 23, 2007 Minimum Housing Report which the plaintiff has not repaired.

(1982). “The covenant of quiet enjoyment protects a tenant’s right to freedom from serious interference with his tenancy-acts or omissions that impair the character and value of the leased premises. (citations omitted).” Doe v. New Bedford Housing Authority, supra at 285.

The Court finds that the plaintiff’s failure to eliminate the bedbug infestation in the premises for the 500 day period between May 23, 2006 and October 4, 2007 constitutes a serious interference with the defendant’s quiet enjoyment of the premises. The defendant is not entitled to recover cumulative damages arising from the same facts under every theory of recovery, but she is entitled to recover damages under the theory which results in the largest award of damages. Wolfberg v. Hunter, 385 Mass. 390 (1982). The defendant’s breach of the implied warranty of habitability claim and her interference with quiet enjoyment claim based on the plaintiff’s failure to eliminate the bedbug infestation in the premises arise from the same set of facts and involve the same damages. The Court will award damages for the plaintiff’s violation of G.L. c. 186, s.14 under the breach of the implied warranty of habitability claim, since that provides the defendant with the largest recovery, and will award attorney’s fees under G.L. c. 186, s.14 based on this claim.

The defendant testified that the function of the space heater in the basement which was listed in the August 23, 2007 Minimum Housing Report was to keep the heating pipes from freezing. She testified that this space heater was on her electric meter, and, as a result, her electric bill was high in the winter. She also testified that there is no written agreement to pay for heat or electricity. The Court credits this testimony and finds that the transfer of responsibility for payment of the electricity for the space heater in the basement without the defendant’s consent constitutes a serious interference with the defendant’s quiet enjoyment of the premises. The Court finds that the defendant is entitled to damages under G.L. c. 186, s.14 in the amount of $1,725.00, which represents three (3) months rent, based on this claim, plus reasonable attorney’s fees.

In her written answer and counterclaims, the defendant contends that the plaintiff violated G.L. c. 239, s.2A and G.L. c. 186, s.18.

in such activities…Such presumption may be rebutted only by clear and convincing evidence[2] that such action was not a reprisal against the tenant, and that the plaintiff 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, even if the tenant had not…engaged in such activity.”

The defendant testified that, on July 12, 2007, following the inspection of the premises by A&A Termite and Pest Control, the plaintiff told her that he was “not sending anyone else. You don’t have a problem, You just want to live here for free.” She also testified that, on July 23, 2007, she handed the plaintiff a bag of bedbugs she had collected in her apartment, and that the plaintiff asked her four (4) times if she was going to pay her rent. She testified that the first three (3) times he asked, she told him she would pay rent “when you get this taken care of,” and that, when he asked her a fourth time, she said, “No.” She testified that the plaintiff then handed her the Notice To Quit which forms the basis for this action. The Court credits this testimony.

The Court finds that, on July 23, 2007, the plaintiff served the defendant with a legally sufficient 15 Day Notice To Pay Rent or Vacate. The Court finds that the defendant is entitled to the statutory presumption of retaliation under G.L. c. 239, s.2A. The Court finds, on the facts of this case, that the plaintiff has failed to establish with clear and convincing evidence that he did not retaliate against the defendant. The Court finds that the

plaintiff did not have sufficient independent justification for serving the July 23, 2007 Notice To Quit, and finds that he took this action in reprisal for the defendant’s actions in notifying him that she would withhold her rent until the bedbug infestation had been eliminated. Accordingly, the Court finds that the defendant is entitled to a defense to possession under G.L. c. 239, s.2A and to damages under G.L. c. 186, s.18 in the amount of $1,725.00, which represents three (3) months rent, plus reasonable attorney’s fees.

In her written answer and counterclaims, the defendant contends that the plaintiff inflicted emotional distress on her. The elements of a claim for intentional infliction of emotional distress are as follows: The claimant must show “(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct;…(2) that the conduct was ‘extreme and outrageous’;…(3) that the actions of the plaintiff were the cause of the defendant’s distress;…and (4) that the emotional distress sustained by the defendant was ‘severe’….” Agis v. Howard Johnson Co., 371 Mass. 140, 144-45 (1976); see also Simon v. Solomon, 385 Mass. 91 (1982). The defendant testified that, as the result of the bedbug infestation, she has not had any visitors to the apartment because she is afraid that any visitors will take bedbugs away with them, and that she has had to keep her clothes in plastic bags. She testified that she is “living out of garbage bags because the bureau is infested.” She also testified that the itching from the bedbug bites causes bruising because she takes cumadin. The Court credits this testimony.

In order to prevail on her claim for intentional infliction of emotional distress, the defendant must prove each element of her claim. The Court finds that there was no evidence at trial that the plaintiff engaged in any conduct which was “extreme and outrageous”. Accordingly, the Court finds that the defendant is not entitled to an award of damages based on this claim.

In her written answer and counterclaims, the defendant sought compensation for personal possessions she lost as the result of the bedbug infestation. The Court finds that there was no evidence at trial of the value of any of these possessions. Accordingly, the Court finds that the defendant is not entitled to an award of damages based on this claim.

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 enter for the defendant for possession of the premises under G.L. c. 239, s.2A.

2. Judgment enter for the plaintiff for damages for unpaid rent in the amount of $7,500.00, plus costs in the amount of $140.00, a total of $7,640.00.

3. Judgment enter for the defendant on her counterclaim for breach of the implied warranty of habitability in the amount of $4,806.27.

4. Judgment enter for the defendant on her counterclaim under G.L. c. 186, s.14 in the amount of $1,725.00, plus reasonable attorney’s fees.

5. Judgment enter for the defendant on her counterclaim under G.L. c. 186, s.18 in the amount of $1,725.00, plus reasonable attorney’s fees.

6. Judgment enter for the plaintiff on the defendant’s remaining counterclaims.

7. The foregoing order for judgment paragraphs 2 through 6 result in a net judgment for the defendant for damages in the amount of $616.27, plus reasonable attorney’s fees.

8. Within ten (10) days of the date that judgment enters, the defendant shall file with this Court a Motion for Counsel Fees, Costs and Expenses in accordance with the procedure prescribed in Yorke Mgmt. v. Castro, 406 Mass. 17, 20 (1989). Counsel shall also submit an affidavit and mark the matter for a hearing. After hearing, the Court shall enter final judgment including an award of reasonable attorney’s fees and costs nunc pro tunc to the date of this decision.

9. Execution issue ten (10) days after the date that judgment enters.

cc: John P. Francoeur, Esq.

Janis E. Martin, Esq.

Docket No. 07-SP-01205

Edmund J. Maher Plaintiff vs. Mary Ann GaCosta Defendant

JUDGMENT

Judgment for the Defendant for possession pursuant to M.G.L. Chapter 239, s.2A.

Judgment for the Plaintiff for unpaid rent in the sum of $7,500.00, plus costs of $140.00, for a total of $7,640.00.

Combined counterclaim damages for Defendant in the sum of $8,256.27, plus reasonable attorney’s fees; resulting in a net judgment to said Defendant of $616.27 plus reasonable attorney’s fees, as is further set forth in paragraphs 3, 4, 5 and 7 of the Court’s Order for Judgment.

Judgment for the Plaintiff as to the Defendant’s remaining counterclaim issues.

The Defendant shall timely comply with the provisions contained in paragraph 8 of the Court’s Order for Judgment, relative to the filing and marking of a Motion for Counsel Fees, Costs and Expenses, with supporting affidavit.

Accordingly, judgment enters at 10:00 a.m. this 2nd day of November 2007.

MARK R. JEFFRIES

CLERK MAGISTRATE

November 2, 2007

Docket # 07-SP-01205

Mailing List:

John P. Francoeur, Esq.

Levin & Levin

138 Rock Street, P. O. Box 2566

Fall River, MA 02722

Janis E. Martin, Esq.

163 Division Road

Westport, MA 02790

————————-

[1] The per diem rental amount is calculated as follows:$575.00 x 12 = $6,900.00 ? 365 = $18.90.

[2] “Clear and convincing” evidence is that which “induces in the mind of the trier a reasonable belief that the facts 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).

End Of Decision

HOUSING COURT

Edmund J. Maher PLAINTIFF v. Mary Ann GaCosta DEFENDANT

HOUSING COURT

Matthew Mota and Renee M. Trial v. Randall Pattee, Natalinha Pattee, James Pattee and Mathew Pattee

SOUTHEASTERN DIVISION

Docket # 07-SP-02783

Parties: Matthew Mota and Renee M. Trial v. Randall Pattee, Natalinha Pattee, James Pattee and Mathew Pattee

Judge: /s/ ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: August 13, 2007

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

This is a summary process action in which the plaintiffs sought to recover possession of the premises from the defendants and damages for unpaid rent. The defendants filed a written answer and counterclaims. The defendants Randall Pattee and Natalinha Pattee appeared for trial and testified. The defendants James Pattee and Mathew Pattee, who are the adult sons of the defendants Randall Pattee and Natalinha Pattee, did not appear for trial[1].

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

The defendants, Randall Pattee, Natalinha Pattee, James Pattee and Mathew Pattee, resided at 42-44 Mt. Vernon St., 2nd floor, New Bedford, MA (‘the premises’) from approximately 1994 to an unspecified date in early May 2007. The plaintiffs, Matthew Mota and Renee M. Trial[2], purchased the premises from the defendants Randall Pattee and Natalinha Pattee on December 3, 2006 and are the owners of the premises.

The plaintiff Matthew Mota (‘Mr. Mota’) testified that, when he and the plaintiff Renee M. Trial[3] purchased the premises, the defendant Randall Pattee (‘Mr. Pattee’) and the defendant Natalinha Pattee (‘Ms. Pattee’) asked to continue living in the premises. Mr. Mota testified that he informed Mr. Pattee and Ms. Pattee that, if they remained in the premises, they would have to pay a monthly rent of $1,000.00, and pay for their own utilities[4]. He testified that, after Mr. Pattee and Ms. Pattee agreed to these terms, he prepared a lease for their signatures, and gave it to Ms. Pattee. He testified that Mr. Pattee subsequently informed him that, when he got a chance, he would sign the lease and return it to Mr. Mota. Mr. Mota also testified that Mr. Pattee and Ms. Pattee agreed to pay rent for the month of December 2006 when they returned the lease to him. Mr. Pattee testified that he and Ms. Pattee made a verbal agreement with Mr. Mota to rent the premises for $1,000.00 per month, and agreed that he and Ms. Pattee would pay for the gas. He testified that, when he received a copy of the proposed lease, he told Mr. Mota that he wanted to read it over. He testified that he never signed the lease. The Court credits the parties’ testimony on these issues.

Mr. Mota testified that Mr. Pattee and Ms. Pattee did not pay any rent for the months of December 2006 and January 2007, paid $650.00 in February 2007-which he characterized as ‘use and occupancy’–and have failed to pay the plaintiffs any use and occupancy for the months of March 2007 through May 2007. He testified that Mr. Pattee and Ms. Pattee currently owe the plaintiffs a total of $5,350.00 in unpaid use and occupancy. Mr. Pattee testified that he and Ms. Pattee did not pay the plaintiffs any rent in December 2006, that he paid the plaintiffs $250.00 per week in cash for January 2007 rent, with the exception of one week, which he withheld, that he paid the plaintiffs $650.00 for February 2007 rent, and that he notified Mr. Mota that he and Ms. Pattee were withholding rent beginning in March 2007 because of conditions in the premises. He testified that the defendants vacated the premises on an unspecified date in May 2007, but that they had not yet moved their refrigerator out of the premises, nor have they moved their washer and dryer, which is located in the locked basement. Mr. Mota testified that he was at the house during the week of May 7, 2007 and observed that the defendants appear to have vacated the premises, except for the refrigerator in the premises, and a washer/dryer in the basement. He testified that he will give them access to the basement to remove the washer/dryer upon

request. He testified that the defendants did not give him any notice that they were vacating the premises.

The Court credits the testimony of the parties on the issue of the defendants’ vacating the premises, and finds that the issue of possession is moot. The Court finds that, since there was no evidence at trial that the defendants gave the plaintiffs any notice that they were vacating the premises, they remain responsible for payment of the rent for the month of May 2007.

The Court credits the testimony of Mr. Pattee on the issue of his and Ms. Pattee’s rental payments since December 3, 2006, and finds that the defendants Randall Pattee and Natalinha Pattee have failed to pay the plaintiffs any rent for the months of December 2006, March 2007, April 2007 and May 2007, owe a balance of $250.00 for the month of January 2007, owe a balance of $350.00 for the month of February 2007, and currently owe the plaintiffs a total of $4,600.00 in unpaid rent.

The Court finds that, on March 6, 2007, the plaintiffs served the defendants with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent.

The defendants filed a written answer and counterclaims based on breach of the implied warranty of habitability, violations of G.L. c. 186, s.14, G.L. c. 186, s.18, G.L. c. 93A, negligent failure to maintain the premises, failure to pay heat and hot water, and intentional infliction of emotional distress.

At trial, the plaintiffs’ counsel contended that, since Mr. Pattee and Ms. Pattee never signed the proposed lease and since Mr. Mota accepted money from Mr. Pattee and Ms. Pattee as ‘use and occupancy’ and not as ‘rent,’ no tenancy was created between the plaintiffs and Mr. Pattee and Ms. Pattee are not entitled to raise any counterclaims under G.L. c. 239, s.8A in this action. See Martinez v. Silva, No. 99-SP-02319 (Winik, J., July 12, 1999). The Court finds that, since Mr. Mota, Mr. Pattee and Ms. Pattee reached a verbal agreement on the terms of Mr. Pattee’s and Ms. Pattee’s occupancy of the premises, and since Mr. Mota then prepared a proposed lease memorializing the terms of their verbal agreement, there was credible evidence at trial that the parties intended to create a landlord-tenant relationship in December 2006. The Court finds that, since the proposed lease was never signed by Mr. Pattee and Ms. Pattee, a tenancy-at-will was created between the parties in December 2006, and finds that, as tenants-at-will, they are entitled to raise counterclaims under G.L. c. 239, s.8A in this action[5].

Mr. Mota testified that, when the plaintiffs purchased the premises, he was aware that the gas service, which provides the heat for the premises, had been turned off since September 28, 2006. Mr. Pattee and Ms. Pattee testified that, since September 28, 2006, the defendants used electric heaters in the premises to provide heat. Mr. Mota testified that, when he purchased the premises, he told Mr. Pattee and Ms. Pattee that the gas had to be turned on in their names, and that Mr. Pattee told him that he would arrange for the gas to be turned on. Mr. Pattee testified that he and his wife could not put the gas on in their names because they owed money to the gas company, but that he did tell Mr. Mota that he would do so. The Court credits the parties’ testimony on these issues.

Mr. Mota testified that he did not know that Mr. Pattee and Ms. Pattee had not turned the gas on in their names until the pipes froze and then burst on an unspecified date in mid-February 2007. Ms. Pattee testified that she told Mr. Mota in December 2006 and January 2007 that the gas service was not on, and that he informed her that he would take care of it. The Court credits the testimony of Mr. Mota on this issue and finds that there was no credible evidence at trial that the plaintiffs knew or should have known that the gas service had not been turned on until the pipes froze in mid-February 2007.

Mr. Mota testified that, after the pipes burst, he transferred the gas service into his own name. Ms. Pattee testified that the heat was restored to the premises in mid-February 2007. The Court credits the parties’ testimony on this issue, and finds that it is a reasonable inference that Mr. Mota acted promptly to transfer the gas service into his name in order to provide heat to the premises after the pipes burst in mid-February 2007.

Mr. Mota testified that, after the pipes burst, he called a plumber, and that the plumber informed him he could not work in the basement to repair the pipes and restore the water service to the premises until the clutter had been cleaned out of the basement. Mr. Mota testified that he told Mr. Pattee to clean the basement, and that it took two (2) weeks for Mr. Pattee and Ms. Pattee to clean the basement. Mr. Pattee testified that his wife cleaned the basement within 1€ days. The Court credits the parties’ testimony, and finds that there was no evidence at trial as to how long after Mr. Mota’s request Mr. Pattee and Ms. Pattee began to clean the clutter in the basement.

Mr. Mota testified that, during this two (2) week period, the plumber also made unspecified repairs to unspecified faucets in the premises. He testified that the repairs to the pipes and the faucets were completed by March 5, 2007, and that the water service had been restored by that date. The Court credits this testimony.

Mr. Mota testified that, on March 5, 2007, he told Mr. Pattee that, since the repairs had been finished, he had to pay the overdue rent, and that Mr. Pattee said he would not pay any rent. Mr. Mota testified that, because of this, he shut off the gas in the premises on March 6, 2007. Ms. Pattee testified that Mr. Mota turned off the heat on March 6, 2007 because she told him she would not pay the remainder of the rent for the month of February 2007 because there had been no water and no heat. The Court credits the testimony of the parties on these issues.

Ms. Pattee testified that, on March 5, 2007, Mr. Mota

threatened to ‘get rid of my stuff’ the next day. Mr. Mota testified that he did not make this threat. He testified that he did tell Mr. Pattee and Ms. Pattee that he was going to Housing Court the next day, and that he did, in fact, serve the defendants with a 14 Day Notice to Quit for Non-Payment of Rent on March 6, 2007. The Court credits the testimony of Mr. Mota on these issue.

The Court finds that, on March 6, 2007 at 12:50 p.m., in No. 07-CV-00526, this Court (Chaplin, J.) entered a Temporary Restraining Order which ordered Mr. Mota to provide heat to the premises, to provide running water to the premises and to refrain from threatening to evict Mr. Pattee and Ms. Pattee from the premises without due process of law.

Mr. Mota testified that he turned the gas on promptly after the Temporary Restraining Order was granted on March 6, 2007 and that he never turned the gas service off after that date. Mr. Pattee testified that there was no gas at the premises again ‘a couple of days’ after March 6, 2007. The Court finds that Mr. Pattee and Ms. Pattee filed a Complaint for Contempt in 07-CV-00526 on March 9, 2007, on the ground that Mr. Mota had turned the heat off again at the premises. After hearing on the Complaint for Contempt on March 12, 2007, the Court found that Mr. Mota was not in contempt of the Court’s March 6, 2007 order that the heat be restored to the premises.

Mr. Pattee testified that, on April 7, 2007, Mr. Mota went to the basement of the premises, shut off the gas, and locked the basement door. He testified that he and Ms. Pattee did not return to court after April 7, 2007 ‘because he would just do it again.’ Ms. Pattee testified that the heat was shut off from April 7, 2007 through April 11, 2007. Mr. Mota testified that he never turned the gas off at the premises after March 6, 2007, and that he ‘had no idea it was turned off.’ He testified that he received a gas bill dated April 18, 2007 which listed $127.00 for gas in March 2007 and $476.00 for gas in April 2007. He testified that he locked the basement after the court hearing on March 12, 2007 so that ‘no one could turn the heat off again.’ The Court credits Mr. Mota’s testimony on these issues, and finds that there was no credible evidence at trial that the heat at the premises was turned off at any time after March 6, 2007.

Mr. Pattee testified that, when he and Ms. Pattee owned the premises in 2006, they received a water shut-off notice because they had not paid the water bill, but that the water was never shut off. Mr. Mota testified that he put the water bill for the premises into his name on November 28, 2006, and that the water was on continuously until the pipes burst in mid-February 2007. Ms. Pattee testified that there was no water in the premises during the first three weeks in December 2006, and that she complained about this to Mr. Mota, who told her the water department would not turn on the water right away. She testified that there was also no water in the premises for an unspecified time in January 2007. She testified that, when there was no water service, she and Mr. Pattee used gallons of water from ‘a self-serve place.’ She also testified that she and Mr. Pattee went to a hotel to bathe when there was no water in the premises. The Court does not credit Ms. Pattee’s testimony on these issues.

The Court finds that there was no credible evidence at trial that the plaintiffs knew or should have known about lack of gas

service and heat in the premises until the pipes froze and burst on an unspecified date in mid-February 2007. The Court finds that the lack of heat in the premises on March 6, 2007-due to Mr. Mota’s actions in shutting off the gas-constitutes a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973).

The Court finds that there was no credible evidence at trial that there was no water in the premises from November 28, 2006 until the unspecified date in February 2007 on which the pipes burst. The Court finds that the plaintiffs could not make repairs to the pipes and restore the water service to the premises until Mr. Pattee and Ms. Pattee cleaned the clutter out of the basement. Accordingly, the Court finds that Mr. Pattee and Ms. Pattee are not entitled to damages under G.L. c. 239, s.8A based on this condition, since their failure to heat the premises caused the pipes to freeze and then burst, and since the clutter in the basement prevented the plaintiffs from restoring the water service until they cleaned the basement.

The Court finds that there was no evidence at trial as to when the plaintiffs knew or should have known that certain unspecified faucets in the premises needed to be repaired, and no evidence at trial as to how long this condition existed before repairs were made. The Court finds that there was no evidence that the condition of the faucets was serious, or that this condition endangered the health or safety of Mr. Pattee or Ms. Pattee, or that this condition diminished the fair rental value of the premises. Accordingly, the Court finds that the existence of this condition did not constitute a material breach of the implied warranty of habitability. Id.

G.L. c. 186, s.14 provides, in pertinent part: ‘Any lessor or any landlord of any building or part thereof occupied for dwelling purposes…who directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant…shall…be liable for actual and consequential damages, or three months’ rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee…’

Authority, supra at 285.

The Court finds that Mr. Mota’s action in shutting off the gas at the premises on March 6, 2007 constitutes a serious interference with the defendants’ quiet enjoyment of the premises. Mr. Pattee and Ms. Pattee are not entitled to recover cumulative damages arising from the same facts under every theory of recovery, but they are entitled to recover damages under the theory which results in the largest award of damages. Wolfberg v. Hunter, 385 Mass. 390 (1982). The plaintiffs’ breach of the implied warranty of habitability with respect to shutting off the gas to the premises on March 6, 2007 and the plaintiffs’ violation of G.L. c. 186, s.14 for breach of the implied warranty of habitability arise from the same facts and involve the same damages. An award of damages for breach of warranty would be duplicative of the damages awarded for violation of G.L. c. 186, s.14. The Court will award damages for breach of the implied warranty of habitability under G.L. c. 186, s.14, since that provides the largest recovery to the defendants. The Court finds that the defendants are entitled to damages under G.L. c. 186, s.14 in the amount of $3,000.00, which represents three (3) months rent, plus reasonable attorney’s fees, based on this claim.

Ms. Pattee testified that, on March 5, 2007, Mr. Mota had her car towed from the driveway. She testified that he told her, ‘I don’t want your car in the driveway because you are not paying rent.’ The Court credits this testimony.

Ms. Pattee testified that, on April 7, 2007, Mr. Mota was in the first floor apartment in the building in which the premises is located, and that he put the radio on at a very loud volume in the morning. She testified that Mr. Mota was in the first floor apartment for approximately 10 to 15 minutes, then left and did not return until after 6:00 p.m., but the radio was on all day at a very loud volume. She testified that, on one (1) night during the week of April 8, 2007, the radio was on until 9:55 p.m., and that no one was in the first floor apartment to shut it off. She testified that Mr. Mota brought strangers into the first floor apartment who were just banging and yelling and singing. She testified that they were not working, and that she felt intimidated by this. She testified that, on April 10, 2007, the music was still loud after midnight, that she called the New Bedford Police Department and that the police officers determined that the door to the first floor apartment was padlocked and no one was there. She testified that, on that occasion, the music was on all night. Mr. Pattee testified that there was loud music one morning in particular. He testified that several people were working downstairs, and that the radio was turned on at a loud volume at approximately 9:30 p.m. one night, and was left on all night long. He testified that he called the New Bedford Police Department one or two times and was able to get the radio shut off. He testified that the volume was ‘blatantly unreasonable’ and that it made him ‘feel frustrated.’ Mr. Mota testified that, on April 7, 2007, he was working in the first floor apartment all day, that he did not leave the radio on after he left, and that he did not leave the radio on all night. The Court credits the testimony of Mr. Pattee and Ms. Pattee on these issues. The Court finds that Mr. Mota’s actions in towing Ms. Pattee’s car on March 5, 2007 and in leaving a radio which has been set at a very loud volume on for

extended periods of time in the first floor apartment for several days in April 2007 constitute serious interferences with Mr. Pattee’s and Ms. Pattee’s quiet enjoyment of the premises.

Mr. Pattee and Ms. Pattee are not entitled to a separate award of statutory damages for each incident that they contend constitutes an interference with quiet enjoyment. ‘When three months’ rent has been assessed for one violation, the incentive function of the triple rent provision is fulfilled. Therefore, we hold that a tenant proceeding under s.14 may collect only one such award, covering all claims that the tenant has raised or reasonably could have raised in the suit.’ Simon v. Solomon, 385 Mass. 91, 110 (1982). Accordingly, the Court finds that Mr. Pattee and Ms. Pattee are not entitled to an additional award of damages under G.L. c. 186, s.14 based on these violations.

G.L. c. 186, s.18 provides, in pertinent part: ‘Any person or agent thereof who threatens to or takes reprisals against any tenant of residential premises for the tenant’s act of commencing, proceeding with, or obtaining relief in any judicial or administrative action the purpose of which action is to obtain damages under, or otherwise enforce, any federal, state or local law, regulation, by-law or ordinance, which has as its objective the regulation of residential premises; or…reporting to the board of health or, in the city of Boston, to the commissioner of housing inspection or to any other board having as its objective the regulation of residential premises; or reporting or complaining of such violation or a suspected violation in writing to the landlord or to the agent of the landlord…shall be liable for damages which shall not be less than one month’s rent or more than three months’ rent, or the actual damages sustained by the tenant, whichever is greater, and the costs of the suit, including a reasonable attorney’s fee. The receipt of any notice of termination of tenancy except for non-payment of rent or, of increase in rent or, of any substantial alteration in the terms of tenancy within six months after the tenant has…made such report or complaint…shall create a rebuttable presumption that such notice or other action is a reprisal against the tenant for engaging in such activities. Such presumption shall be rebutted only by clear and convincing evidence[7] that such person’s action was not a reprisal against the tenant and that such person 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 tenant engaging in, or the belief that tenants had engaged in, activities protected under this section.’

Mr. Mota testified that, on March 5, 2007, he told Mr. and Ms. Pattee that he was going to Housing Court the next day. The Court finds that, on March 6, 2007 at 12:50 p.m., this Court (Chaplin, J.) granted Mr. Pattee’s and Ms. Pattee’s Application for Temporary Restraining Order with respect to restoring the heat and hot water at the premises, and ordering the plaintiffs not to evict the defendants without due process of law. The Court finds that, on March 6, 2007 at 4:59 p.m., the plaintiffs served the defendants with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent. Mr. Mota testified that he had notified the sheriff to serve the defendants with the March 6, 2007 Notice To Quit before he knew that Mr. Pattee and Ms. Pattee had filed an Application for Temporary Restraining Order in this Court on that date. The Court

credits this testimony. The Court finds that Mr. Pattee and Ms. Pattee are not entitled to the statutory presumption of retaliation, since the March 6, 2007 Notice To Quit was for non-payment of rent. The Court finds, on the facts of this case, that Mr. Pattee and Ms. Pattee have not established by a preponderance of the evidence that the plaintiffs retaliated against them. The Court finds that the plaintiffs’ sole reason for serving the March 6, 2007 Notice To Quit was that Mr. Pattee and Ms. Pattee had failed to pay rent when due, following the restoration of gas and water service to the premises. The Court finds that Mr. Mota had formed the intent to serve the defendants with a 14 Day Notice To Quit for Non-Payment of Rent prior to Mr. Pattee’s and Ms. Pattee’s filing of the Application for Temporary Restraining Order on March 6, 2007. Accordingly, the Court finds that Mr. Pattee and Ms. Pattee are not entitled to damages under G.L. c. 186, s.18.

In their written answer and counterclaims, Mr. Pattee and Ms. Pattee contend that the plaintiffs’ actions constitute intentional infliction of emotional distress.

Ms. Pattee testified that Mr. Pattee suffers from chronic psychosis, which sometimes is in remission, but at other times, he suffers a relapse. She testified that she informed Mr. Mota several times of Mr. Pattee’s illness, informing him that Mr. Pattee had a psychotic break, and was hospitalized. The Court credits this testimony. Mr. Pattee testified that, when there was no heat in the premises, he ‘ felt like less of a man.’ He also testified that he felt as though he could not provide for his family, and that he felt numb and frustrated. The Court credits this testimony.

The elements of a claim for intentional infliction of emotional distress are as follows: The claimant must show ‘(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct;…(2) that the conduct was ‘extreme and outrageous’;…(3) that the actions of the plaintiff were the cause of the defendant’s distress;…and (4) that the emotional distress sustained by the defendant was ‘severe’….’ Agis v. Howard Johnson Co., 371 Mass. 140, 144-45 (1976); see also Simon v. Solomon, 385 Mass. 91 (1982).

The Court finds that there is no credible evidence that Mr. Mota engaged in any conduct which was ‘extreme and outrageous,’ finds that there is no credible evidence that any emotional distress sustained by Mr. Pattee or Ms. Pattee was severe, and finds that there is no credible evidence that Mr. Mota’s actions were the cause of any emotional distress Mr. Pattee or Ms. Pattee may have sustained. Accordingly, Mr. Pattee and Ms. Pattee are not entitled to an award of damages based on this claim.

In their written answer and counterclaims, Mr. Pattee and Ms. Pattee contend that they were required to pay for utilities in the absence of a written agreement to do so. The Court finds that there is no evidence that Mr. Pattee or Ms. Pattee made any payments for gas service between December 3, 2006 and the date in mid-February 2007 on which Mr. Mota put the gas service in his name. The Court finds that there is no evidence that the plaintiffs failed to provide electricity to the premises, or that Mr. Pattee’s and Ms. Pattee’s payments for electricity had a

negative impact on their use and enjoyment of the premises, or that they objected to paying for the electricity to the premises before the filing of the answer and counterclaim in this action on May 1, 2007-a few days before they vacated the premises–or that their rent and the cost of electricity, together, was more than the fair rental value of the premises, or that there was a meter violation. Poncz v. Loftin, 34 Mass. App. Ct. 909, 911 (1993). The Court also finds that there is no evidence of the amount of Mr. Pattee’s and Ms. Pattee’s electricity payments at any time relevant to this action. Accordingly, the Court finds that Mr. Pattee and Ms. Pattee are not entitled to recover damages based on this claim.

The Court finds that there was no evidence at trial that the plaintiffs are engaged in the trade or business of residential real estate, within the meaning of G.L. c. 93A. Accordingly, the Court finds that Mr. Pattee and Ms. Pattee are not entitled to recover damages based on this claim.

The Court finds that Mr. Pattee and Ms. Pattee have prevailed on their counterclaim for interference with quiet enjoyment, and were awarded reasonable attorney’s fees under G.L. c. 186, s.14. In evaluating a request for an award of attorneys 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, 379 Mass. 381, 388-9 (1979). See Heller v. Silverbranch Construction Corp., 376 Mass. 621, 629 (1978). (‘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’). However, the actual amount of the attorney’s fee is largely discretionary with the trial judge. Linthicum, supra at 388.

The Court has reviewed the Affidavit submitted by Attorney Paul J. Gillis, Mr. Pattee’s and Ms. Pattee’s trial counsel in this action. The Court had the opportunity to observe Mr. Gillis during the trial of this action. While the legal issues were not complex, there were significant factual disputes. Mr. Gillis represented his clients skillfully, and his clients recovered a judgment on their counterclaims for interference with quiet enjoyment, and were awarded reasonable attorney’s fees under G.L. c. 186, s.14. The Court considers Mr. Gillis’ hourly rate of $220.00 to be fair and reasonable given his experience. His rate is within the range of hourly rates charged by attorneys of similar experience in the New Bedford area. After reviewing Mr. Gillis’ Affidavit, the Court finds that 3.5 hours were reasonably attributable to the counterclaims for breach of the implied warranty of habitability and interference with quiet enjoyment, and represented time for which Mr. Gillis is entitled to compensation, in the amount of $770.00. The Court awards Mr. Gillis reasonable attorney’s fees in the amount of $770.00, to be paid by the plaintiffs.

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 enter for the plaintiffs as to the defendants Randall Pattee and Natalinha Pattee for damages for unpaid rent in the amount of $4,600.00, plus costs in the amount of $260.00, a total of $4,860.00.

2. Judgment enter for the defendants Randall Pattee and Natalinha Pattee on their counterclaim under G.L. c. 186, s.14 in the amount of $3,000.00, plus reasonable attorney’s fees in the amount of $770.00, a total of $3,770.00.

3. Judgment enter for the plaintiffs on Randall Pattee’s and Natalinha Pattee’s remaining counterclaims.

4. The foregoing order for judgment paragraphs 1 through 3 result in a net judgment for the plaintiffs for damages in the amount of $1,860.00

5. Execution issue ten (10) days after the date that judgment enters.

6. The plaintiffs shall pay attorney’s fees in the amount of $770.00 to defendants’ counsel no later than thirty (30) days after the date that judgment enters.

07-SP-02783

Matthew Mota and Renee M. Trial vs. Randall Pattee, Natalinha Pattee, James Pattee and Mathew Pattee

JUDGMENT

Judgment for the Plaintiffs as to Defendants Randall Pattee and Natalinha Pattee, for unpaid rent of $4,600.00, plus costs of $260.00, for a total of $4,860.00.

Judgment for Defendants Randall Pattee and Natalinha Pattee pursuant to M.G.L. Chapter 186, s.14 in the sum of $3,000.00 plus a reasonable attorney’s fee of $770.00, for a total of $3,770.00; resulting in a net judgment to Plaintiffs of $1,860.00 as more specifically set forth in paragraphs 2 and 4 of the Court’s Order for Judgment.

Judgment shall enter for Plaintiffs as to Defendants Randall Pattee and Natalinha Pattee’s remaining counterclaim issues.

Plaintiffs shall timely comply with payment of attorney’s fees to counsel for Defendants as is further provided in paragraph 6 of the Court’s Order for Judgment.

Accordingly, judgment enters at 10:00 a.m. this 14th day of August 2007.

MARK R. JEFFRIES

CLERK MAGISTRATE

August 14, 2007

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[1] At trial, counsel for the plaintiffs moved that the defendants James Pattee and Mathew Pattee be defaulted for failure to appear, and counsel for the defendants opposed this oral motion on the ground that they were represented by an attorney at trial. The Court grants the plaintiffs’ oral motion, and the defendants James Pattee and Mathew Pattee are hereby defaulted, and are hereby non-suited on the counterclaims. See Unicorn Realty Trust v. Coy and Forrey, No. 04-CV-01149 (Edwards, J., January 22, 2007).

[2] The plaintiff Matthew Mota, through counsel, made an oral motion at trial to add Renee M. Trial as a co-plaintiff in this action, since she is a co-owner of the premises. The defendants, through counsel, assented to this motion, and the plaintiffs, through counsel, assented to the defendants’ oral motion that Renee M. Trial be added as a co-defendant-in-counterclaim. Accordingly, the Court finds that Renee M. Trial is a co-plaintiff and a co-defendant-in-counterclaim in this action.

[3] The Court notes that there was no evidence at trial that the plaintiff Renee M. Trial ever had any contact with either Mr. Pattee or Ms. Pattee. Accordingly, the remainder of this decision shall be limited to consideration of the plaintiff Matthew Mota’s actions.

[4] The Court finds that the electricity for the premises was in the defendants’ names when the plaintiffs purchased the premises, and remained in the defendants’ names at all times relevant to this action.

[5] The Court does not reach the issue of whether Mr. and Ms. Pattee would have been entitled to raise counterclaims had they been tenants-at-sufferance.

[6] The per diem rental amount is calculated as follows: $1,000.00 x 12 = $12,000.00 ? 365 = $32.88.

End Of Decision

HOUSING COURT

Frances Motta v. Chantal Harding and All Other Occupants

SOUTHEASTERN DIVISION

Docket # 07-SP-03207

Parties: Frances Motta v. Chantal Harding and All Other Occupants

Judge: /s/ ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: September 27, 2007

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

This is a summary process action in which the plaintiff seeks to recover possession of the premises from the defendants and damages for unpaid rent.

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

The defendant, Chantal Harding[1], has resided at 218 Myrtle Street, 2nd Floor, New Bedford, MA (‘the premises’) as a tenant at will at all times relevant to this action. The plaintiff, Frances Motta, is the owner of the premises and is the defendant’s landlord. The rent for the premises is $575.00 per month and is due on the first day of each month. The defendant has failed to pay the plaintiff any rent for the months of July 2007 through September 2007 and currently owes the plaintiff a total of $1,725.00 in unpaid rent.

The Court finds that, on August 10, 2007, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent.

The defendant testified that she has been paying for the electricity in the hallway and the basement for 2′ years.

The defendant testified that, after the plaintiff had informed her she was going to institute an eviction action, she told the plaintiff that the electricity was commingled. She testified that the plaintiff responded that it was ‘only a couple of wires.’ She also testified that, at the inception of her tenancy in December 2004, she lived on the third floor of the building, and the plaintiff told her to turn off the hall lights and the cellar lights when she was not using them because the electricity for those lights was in the name of the tenants on the second floor. The plaintiff testified that she never knew that there was commingling of electricity in the building in which the premises is located until she received a notice from the City of New Bedford Department of Inspectional Services, Division of Minimum Housing Standards (‘Minimum Housing’) in July 2007. The plaintiff testified that she removed these four (4) lights from the defendant’s electric meter by August 7, 2007. The Court credits the plaintiff’s testimony on these issues.

The Court finds that, on July 11, 2007, Minimum Housing inspected the premises and found the following condition: ‘The owner at all times shall pay for the electricity that is not separately metered from the 2nd flr. apartment. Two basement lights, One rear hall light on the 1st flr. landing, One rear hall light on the 2nd flr. landing. Total lights: Four (4).’

The Court finds that there was no credible evidence at trial that the plaintiff knew or should have known that the four (4) common area lights were on the defendant’s electric meter until she received the July 11, 2007 Minimum Housing Report. The Court finds that the defendant was already in arrears in her rent at the time the plaintiff learned of this condition. Accordingly, the Court finds that the defendant is not entitled to a defense to possession under G.L. c. 239, s.8A based on this condition.

The Court finds that the presence of four (4) common area lights on the defendant’s electric meter for the 28 day period between July 11, 2007 and August 7, 2007 is a condition which constitutes a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). Accordingly, the Court finds that the defendant is entitled to damages under G.L. c. 239, s.8A based on this condition.

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 enter for the plaintiff for possession of the premises and damages for unpaid rent in the amount of $1,725.00, plus costs in the amount of $176.50, a total of $1,901.50.

2. Judgment enter for the defendant on her counterclaim for breach of the implied warranty of habitability in the amount of $26.60.

3. The foregoing order for judgment paragraphs 1 and 2 result in a net award of damages to the plaintiff in the amount of $1,698.40, plus costs in the amount of $176.50, a total of $1,874.90.

4. Execution issue ten (10) days after the date that judgment enters.

07-SP-03207

Frances Motta vs. Chantal Harding and All Other Occupants

JUDGMENT

Judgment for the Plaintiff for possession, unpaid rent of $1,725.00 plus costs of $176.50, for a total of $1,901.50.

Judgment for the Defendant on her counterclaim for breach of the implied warranty of habitability in the sum of $26.60; resulting in a net judgment for Plaintiff in the sum of $1,874.90 as provided in paragraph 3 of the Court’s Order for Judgment.

Accordingly, judgment enters at 10:00 a.m. this 28th day of September 2007.

/s/ MARK R. JEFFRIES

CLERK MAGISTRATE

September 28, 2007

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[1] There was no evidence at trial that there are any other occupants of the premises. Accordingly, the remainder of this decision will be limited to the defendant Chantal Harding.

[2] The per diem rental amount is calculated as follows: $575.00 x 12 = $6,900.00 ? 365 = $18.90.

End Of Decision

HOUSING COURT

Denise Randall v. Anthony Scaramuzzo and Kerri Scaramuzzo

Docket # 07-SP-01238

Parties: Denise Randall v. Anthony Scaramuzzo and Kerri Scaramuzzo

Judge: /s/ ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: November 20, 2007

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

This is a summary process action in which the plaintiff sought to recover possession of the premises from the defendants and damages for unpaid rent. The defendant Kerri Scaramuzzo did not appear for trial and was defaulted. The defendant Anthony Scaramuzzo appeared for trial and testified.

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

The defendants, Anthony Scaramuzzo and Kerri Scaramuzzo, resided at 58 Hodges Street, Attleboro, MA (‘the premises’) as tenants under a written lease from March 7, 2005 through March 6, 2006, and as tenants at will from March 7, 2006 until they vacated the premises on August 31, 2007. The Court finds that the issue of possession is moot. The plaintiff, Denise Randall, is the owner of the premises and was the defendants’ landlord. The rent for the premises was $1,200.00 per month and was due on the first day of each month. The defendants have failed to pay the plaintiff any rent for the months of November 2005 through August 2007, and currently owe the plaintiff a total of $26,400.00 in unpaid rent. The Court finds that, on July 16, 2007, the plaintiff served the defendants with a legally sufficient 14 Day Notice To Vacate Premises for Non-Payment of Rent.

At trial, the defendant Anthony Scaramuzzo testified that there were defective conditions in the premises.

The defendant Anthony Scaramuzzo testified that the defendants stopped paying rent in November 2005 due to defective conditions in the premises. He testified that, on November 15, 2005, he and his

wife notified the plaintiff in writing that they had been trying to get in touch with the plaintiff since November 1, 2005 to inform her that there was a bat in the premises. He testified that the November 15, 2005 letter to the plaintiff also informed her that the thermostat in the fireplace room was smoking on November 9, 2005, that the smoke detectors were not hard-wired, and that the battery-operated smoke detectors did not work, that odors from the basement were coming into the upstairs closets, that there was an unspecified ‘unsafe thing’ on the porch, and that there were unspecified plumbing issues in the premises. He testified that the plaintiff attempted to repair these conditions, but that she hired a contractor who was unlicensed, and that the City of Attleboro Board of Health ‘asked him to leave.’ On cross-examination, the defendant Anthony Scaramuzzo testified that, in December 2005, the plaintiff engaged the services of Terminix to deal with the bat in the premises, and that, at some unspecified time, she hired a plumber to fix the toilet and install sinks, hired a contractor to repair two (2) windows and repair the door locks, hired a roofer, and hired a heating contractor to clean the boiler. He also testified that, in March 2006, the plaintiff hired an electrical contractor to repair two (2) outlets and install a piece of aluminum bracket over an outlet. He testified that, in July 2006, the plaintiff hired a bricklayer to repair the top of the chimney. He also testified that, on one (1) unspecified occasion, he returned to the premises from Cape Cod to find that the electricity had been turned off. He testified that the electricity was turned back on within 24 hours. He testified on cross-examination that Paragraph 13 of the lease between the parties requires the tenants to pay all utilities. The defendant Anthony Scaramuzzo also testified that, on January 10, 2006, he asked the City of Attleboro Board of Health to inspect the premises because he was concerned that there was defective wiring in the premises. He testified that, as the result of that inspection, the Board of Health issued a stop work order to an unlicensed contractor hired by the plaintiff.

Alicia Scaramuzzo, the defendants’ daughter, testified that, at the inception of the defendants’ tenancy, the defendants painted the premises. She testified that, throughout the defendants’ tenancy, rain water would come in through the windows in the second floor bedroom down to the kitchen and that the walls were bulging out. She also testified that, at some unspecified time during the defendants’ tenancy, there was mildew in the kitchen where the dishwasher was.

Lynn Robbins, the defendant Kerri Scaramuzzo’s sister, testified that, in March 2005, she helped the defendants clean the premises before they moved in. She testified that it took three (3) weeks, and that, at some unspecified time during the defendants’ tenancy, she saw mold, water leaks and defective windows. She testified that she has observed that water leaks through an unspecified portion of the ceiling from upstairs, and that she has seen the mold and the bats. She testified that unspecified light switches in the third floor bedroom have been exposed during unspecified times during the defendants’ tenancy. She testified that, although the defendants could use the toilet in the master bedroom, they were never able to use the bathroom. She testified that there was a smell of cat feces and urine in the

basement until July 2007.

Mary Anne Nagala, the defendant Anthony Scaramuzzo’s mother, testified that, at the inception of the defendants’ tenancy, the premises was in ‘atrocious’ condition. She testified that it took 20 people to clean the rubbish, cat feces, dirty laundry, urine and cat hair out of the premises. She testified that, at some unspecified time during the defendants’ tenancy, the heating system had clumps of cat hair in it and smelled very bad. She also testified that the parties had a verbal agreement in which the defendants would paint the house and maintain the landscape, in exchange for unspecified rental credits. She testified that the defendants could not use the basement until July 2, 2007 because there was debris in the basement, and could not use the washer and dryer in the basement because of the smell in the basement and the ‘bugs.’

The Court finds that, on January 10, 2006, the City of Attleboro Protective Inspection Department (‘Attleboro Inspection Department’) notified Gary Fagerheim, a contractor hired by the plaintiff, that he had not pulled permits for certain work he had performed at the premises, and issued a Stop Work order.

The Court finds that, on July 17, 2007, the Attleboro Inspection Department notified the plaintiff that ‘[o]n Friday, July 13, 2007, I conducted a site visit at 58 Hodges St. to determine if the primary power was turned back on so the tenants can resume to occupy the building. During this site visit the tenants invited me in to show me some problems. In the basement there was clothing and debris piled up all around the oil burner and water heater, which is a serious fire concern. I immediately had the tenants remove this debris while I was there, in which they complied. There was also a lack of any fire detection system in the basement, in which I instructed the tenants to install a smoke detector as soon as possible. There is also a problem with what appears to be a broken drain pipe in an upstairs bathroom that is leaking through the ceiling below, which is compromising the electrical system and the structural condition of the ceiling.’

The plaintiff testified that she has known the defendant Kerri Scaramuzzo since first grade, and that, in March 2005, the defendants asked her whether they could rent the premises effective April 1, 2005. She testified that she told the defendants that the prior tenants had left the premises ‘a mess,’ and that the defendants could rent the premises effective May 1, 2005, after the premises was cleaned. She testified that she and the defendants subsequently agreed that the defendants could move into the premises on April 1, 2005, and that the defendants would paint and clean the premises in exchange for a monthly rent of $1,200.00, which the defendants informed her was all that they could afford to pay. The plaintiff testified that the parties signed the lease on March 7, 2005, with a monthly rent of $1,200.00.

The plaintiff testified that, on March 16, 2005, Empire Today, LLC installed carpeting in the second bedroom, the hallway and the third floor. She testified that, on May 7, 2005, NewPro replaced the windows in the kitchen and the downstairs bathroom, and that all of the other windows in the premises were new when she bought the premises in 1989.

The plaintiff testified that, on November 15, 2005, she received a letter from the defendants notifying her that there was

a bat in the house, and of certain other conditions. She testified that she immediately called the defendants and engaged the services of Terminix, which removed the bat on November 17, 2005. The plaintiff testified that she believes that Gary Fagerheim had completed all of the work he had been engaged to perform at the premises before she received the January 10, 2006 Stop Work order. The plaintiff testified that Brian McDonald installed new water lines to the bathtub in January 2006, and had completed repairs in the downstairs bathroom toilet tank, replaced the upstairs toilet, and repaired the upstairs lavatory drain by February 27, 2006. The plaintiff testified that Shea Home Improvement repaired the cracked glass in the front door, replaced two panes of safety glass in the door and repaired the door to accept a striker bolt on March 9, 2006. The plaintiff testified that, on March 10, 2006, Laban O’Brien installed covers on all electric outlets in the premises. The plaintiff testified that, at some unspecified time after March 10, 2006, the Attleboro Board of Health re-inspected the premises and determined that all of the unspecified violations in the January 10, 2006 Board of Health Report had been corrected.

The plaintiff testified that Kevin Boyden repaired the roof on June 9, 2006. The Court finds that, in his June 9, 2006 invoice, Mr. Boyden notified the plaintiff that there are water leaks in the rear bedroom wall, that the kitchen window over the sink leaks, that there is mold in the cabinets, and that the chimney, which may be the source of the leaks, needs rebuilding. The plaintiff testified that Michael Restagno Masonry Construction Co. built a new chimney on July 21, 2006. The plaintiff testified that Cameron Construction and Roofing Co., Inc. patched the roof on December 14, 2006 because the defendants had notified her at some unspecified time that there were still leaks in the premises. The plaintiff testified that, immediately after the defendants had notified her that there was no heat, M.S. Heating and Air Conditioning, Inc. inspected and cleaned the boiler on January 2, 2007.

The plaintiff testified that, with respect to the items in the basement of the premises, they were her ex-husband’s possessions, which could not be removed until their pending divorce proceeding had been concluded. She testified that, on July 2, 2007, she removed her ex-husband’s possessions from the premises, including the carpet. She testified that there were no cat feces on the carpet, nor was there an odor of urine on the carpet.

The plaintiff testified that, after the November 15, 2005 letter, the only time the defendants notified her of any condition in the premises was when they had no heat.

The plaintiff testified that the defendants denied her access to the premises to check whether any leaks remained to be corrected, after Mr. Boyden repaired the roof, and that, although, at some unspecified time, the defendants notified her of the existence of mold in the premises, they would not allow her access to the premises to inspect the kitchen to see the mold. The plaintiff testified that she did not know that the bathtub upstairs was leaking until she received the July 17, 2007 Attleboro Inspection Department notice.

The Court credits the plaintiff’s testimony on these issues, and finds that there was no evidence at trial that there were odors or bugs in the basement, or an unspecified ‘unsafe thing’ on the

porch. Accordingly, the Court finds that the defendant Anthony Scaramuzzo is not entitled to damages under G.L. c. 239, s.8A based on these conditions.

The Court finds that there was no credible evidence at trial of when the plaintiff knew or should have known of the existence of the following conditions: mildew in the kitchen, a smell in the heating system, broken windows, broken door striker, the leaking of the roof at some time after June 9, 2007. Accordingly, the Court finds that it is unable to compute damages under G.L. c. 239, s.8A based on these conditions.

The Court finds that the existence of the remaining conditions in the premises constitute material breaches of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that the defendant Anthony Scaramuzzo is entitled to damages under G.L. c. 239, s.8A based on these conditions.

The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises free of defects and the fair rental value of the premises during the period in which the defective conditions existed. The Court finds that the fair rental value of the premises free of defects is $1,200.00 per month. The Court finds that the defendant Anthony Scaramuzzo is entitled to the following rent abatements: (1) for the bats in the premises for the 3 day period between November 15, 2005 and November 17, 2005, one hundred per cent (100%); (2) for the smoking thermostat and lack of smoke detectors in the premises for the 57 day period between November 15, 2005 and January 10, 2006, twenty-five per cent (25%); (3) for the plumbing conditions in the premises for the 105 day period between November 15, 2005 and February 27, 2006, fifteen per cent (15%); (4) for the debris in the basement of the premises for the 823 day period between April 1, 2005 and July 2, 2007, five per cent (5%); (5) for the lack of heat in the premises for a one day period in January 2007, one hundred per cent (100%); (6) for the leaking chimney in the premises for the 43 day period between June 9, 2006 and July 21, 2006, twenty-five per cent (25%); and (7) for the lack of a fire detection system in the basement of the premises for the 46 day period between July 17, 2007 and August 31, 2007, twenty per cent (20%), calculated as follows: ($39.45/day[1] x 100% = $39.45 x 3 = $118.35) + ($39.45/day x 25% = $9.86 x 57 = $562.02) + ($39.45/day x 15% = $5.92 x 105 = $621.60) + ($39.45/day x 5% = $1.97 x 823 = $1,621.31) + ($39.45/day x 100% = $39.45 x 1 = $39.45) + ($39.45/day x 25% = $9.86 x 43 = $423.98) + ($39.45/day x 20% = $7.89 x 46 = $362.94) = $3,749.65.

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 enter for the plaintiff against defendant Anthony Scaramuzzo for damages for unpaid rent in the amount of $26,400.00, plus costs in the amount of $279.70, a total of $26,679.70.

2. Judgment enter for the defendant Anthony Scaramuzzo on his counterclaim for breach of the implied warranty of habitability in the amount of $3,749.65.

3. The foregoing order for judgment paragraphs 1 and 2 result in a net judgment for the plaintiff against defendant Anthony Scaramuzzo for damages in the amount of $22,650.35, plus costs in the amount of $279.70, a total of $22,930.05.

4. Execution issue ten (10) days after the date that judgment enters.

07-SP-01238

Denise Randall Plaintiff vs. Anthony Scaramuzzo and Kerri Scaramuzzo, Defendants

JUDGMENT

Judgment for the Plaintiff against Defendant Anthony Scaramuzzo for unpaid rent in the sum of $26,400.00, plus costs of $279.70, for a total of $26,679.70.

Judgment for the Defendant Anthony Scaramuzzo on his counterclaim issue for breach of the implied warranty of habitability, in the sum of $3,749.65; resulting in a net judgment to Plaintiff as to said Defendant Anthony Scaramuzzo in the sum of $22,930.05, as further set forth in paragraph 3 of the Court’s Order for Judgment.

Accordingly, judgment enters at 10:00 a.m. this 21st day of November 2007.

MARK R. JEFFRIES

CLERK MAGISTRATE

November 21, 2007

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[1] The per diem rental amount is calculated as follows:$1,200.00 x 12 = $14,400.00 ? 365 = $39.45.

End Of Decision

HOUSING COURT

Manuel Pereira v. Joanne Brovillard

Docket # 07-SP-01381

Parties: Manuel Pereira v. Joanne Brovillard

Judge: /s/ ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: October 25, 2007

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

This is a summary process action in which the plaintiff seeks to recover possession of the premises from the defendant and damages for unpaid rent.

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

The defendant, Joanne Brovillard, has resided at 621 Third Street, 2 Left, Fall River, MA (‘the premises’) as a tenant at will at all times relevant to this action. The plaintiff, Manuel Pereira, is the owner of the premises and is the defendant’s

landlord. The rent for the premises is $600.00 per month and is due on the first day of each month, no later than the third day of each month. The defendant has failed to pay the plaintiff any rent for the months of September 2007 and October 2007, and currently owes the plaintiff a total of $1,200.00 in unpaid rent.

The Court finds that, on September 6, 2007, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Quit for Rent.

At trial, the defendant testified that there are defective conditions in the premises.

The defendant testified that, at the inception of her tenancy approximately three (3) years ago, she saw a cockroach in the premises. She testified that she notified the plaintiff of this condition, that he ‘bombed’ the premises, and that she did not see any more cockroaches until approximately early August 2007. She testified that she notified the plaintiff that she observed cockroaches, and that he ‘bombed’ the premises. She testified that she subsequently notified the plaintiff that she still observed cockroaches, that the plaintiff ‘bombed’ the premises again, and that she did not observe any other cockroaches until ‘a few days’ before trial, but that she did not notify the plaintiff. The Court credits this testimony.

The defendant testified that, approximately two (2) months ago, she found bedbugs in the premises. She testified that she notified the plaintiff of this condition, and also contacted the Fall River Department of Inspectional Services, Division of Minimum Housing Standards (‘Minimum Housing’) about the bedbugs. The Court credits this testimony.

The Court finds that, on September 7, 2007, Minimum Housing inspected the premises and found the following conditions: ‘Evidence of bed bugs in building. Owner to have professional company to exterminate all apartments. Health Dept. needs copy of professional extermination; Owner to post name, address & contact # in first floor hallway; Debris in backyard. Bulky items. Rugs, table, chairs, etc.; Door doesn’t lock properly. Front security door-self closing mechanism lock; Tenant claims neighbor has roaches; Ceiling stained from leaks in bathroom; Floor tile ripped in kitchen; Overgrown grass throughout yard.’

The defendant testified that, on September 13, 2007, she obtained a Temporary Restraining Order in this Court, No. 07-CV-00186. The Court finds that the Temporary Restraining Order ordered the landlord to ‘desist and refrain from failing to

exterminate the bed bugs at the premises…’ She testified that, after the Temporary Restraining Order was granted, the plaintiff engaged the services of an exterminator, but that, when the exterminator came to the premises, he informed her that there were no bedbugs. The plaintiff testified that the first exterminator whose services he engaged informed him that there were no bedbugs in the premises. He testified that he then engaged the services of another exterminator who also informed him that there were no bedbugs in the premises. He testified that he has now engaged the services of a third exterminator and that this exterminator is scheduled to treat the defendant’s apartment on October 12, 2007. The Court credits the plaintiff’s testimony on these issues.

The plaintiff testified that he has never received the September 7, 2007 Minimum Housing Report, and that the defendant did not notify him of any of the conditions listed on the Report except the bedbugs and the stain on the ceiling. He testified that he repaired the ceiling the day after the defendant notified him of the existence of this condition. The Court credits this testimony.

The Court finds that there was no evidence at trial that the stain on the bathroom ceiling in the premises was serious, or that this condition endangered the health or safety of the defendant, or that this condition diminished the fair rental value of the premises. Accordingly, the Court finds that the existence of this condition did not constitute a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973).

The Court finds that the presence of cockroaches in the premises, the bedbug infestation, and the remaining conditions listed in the September 7, 2007 Board of Health Report are conditions which constitute material breaches of the implied warranty of habitability. Id.

The Court finds that the defendant is entitled to a defense to possession and to damages under G.L. c. 239, s.8A with respect to the bedbug infestation. The Court finds that there was no evidence at trial as to the period of time during which cockroaches were present in the premises, so the Court is unable to award damages to the defendant under G.L. c. 239, s.8A based on this condition. The Court finds that there was no evidence at trial that the plaintiff knew or should have known of the existence of any of the remaining conditions listed in the September 7, 2007 Board of Health Report before trial. Accordingly, the Court finds that the defendant is not entitled to damages under G.L. c. 239, s.8A based on any of these conditions.

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 enter for the plaintiff for damages for unpaid rent in the amount of $1,200.00, plus costs in the amount of $180.00, a total of $1,380.00.

2. Judgment enter for the defendant on her counterclaim for breach of the implied warranty of habitability in the amount of $710.64.

3. The foregoing order for judgment paragraphs 1 and 2 result in a net judgment for the plaintiff for damages in the amount of $489.36, plus costs in the amount of $180.00, a total of $669.36. 4. Judgment enter for the defendant for possession pursuant to the fifth paragraph of G.L. c. 239, s.8A, on the condition that within seven (7) days of her receipt of this ORDER, the defendant deposits with the Clerk of this Court, the sum of $489.36, plus costs in the amount of $180.00, a total of $669.36, in the form of cash, certified check, cashier’s check, or money order, payable to the plaintiff. If this deposit is made, the Clerk shall immediately release all funds held by the Court to the plaintiff. If the deposit is not made, judgment shall automatically enter in favor of the plaintiff for possession and damages in the amount of $489.36, plus costs in the amount of $180.00, a total of $669.36, on the next business day following the expiration of the tenth (10th) day from the date of this Order.

07-SP-01381

Manuel Pereira Plaintiff vs. Joanne Brovillard, Defendant

JUDGMENT

Judgment for the Plaintiff for unpaid rent in the sum of $1,200.00 plus costs of $180.00, for a total of $1,380.00.

Judgment for the Defendant on her counterclaim issue for breach of the implied warranty of habitability in the sum of $710.64, resulting in a net judgment to Plaintiff of $669.36 as further set forth in paragraph 3 of the Court’s Order for Judgment.

Judgment for the Defendant for possession, but contingent upon her timely compliance with the payment provisions contained in paragraph 4 of the Court’s Order for Judgment. Failing same, judgment shall automatically enter for Plaintiff for possession, damages of $489.36, plus costs of $180.00, for a total of $669.36, as is further provided in said paragraph 4.

Accordingly, judgment enters at 10:00 a.m. this 26th day of October 2007.

/s/ MARK R. JEFFRIES

CLERK MAGISTRATE

October 26, 2007

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[1] The per diem rental amount is calculated as

follows:$600.00 x 12 = $7,200.00 ? 365 = $19.73.

End Of Decision

HOUSING COURT

Felix Osagie v. Steve Rodrigues

Docket # 07-SP-01022

Parties: Felix Osagie v. Steve Rodrigues

Judge: /s/ ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: August 16, 2007

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

This is a summary process action in which the plaintiff seeks to recover possession of the premises from the defendant and damages for unpaid rent.

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

The defendant, Steve Rodrigues, has resided at 756 Locust Street, Apt. #2, Fall River, MA (‘the premises’) as a tenant at will since April 2006. The plaintiff, Felix Osagie, is the owner of the premises and is the defendant’s landlord. The rent for the premises is $750.00 per month and is due on the first day of each month.

The plaintiff testified that the defendant has failed to pay him any rent for the months of July 2007 and August 2007, owes a balance of $400.00 per month for the months of May 2007 and June 2007, and currently owes him a total of $2,300.00 in unpaid rent. The defendant testified that he has not paid the plaintiff any rent for the month of August 2007, and that he does not owe the plaintiff any additional rent because the balance of the unpaid rent which the plaintiff seeks to recover represents plumbing work that he performed for the plaintiff. The plaintiff testified that the defendant did perform plumbing work for him, and that he paid him for the work he did. He testified that the work the defendant did was separate from the rent, and that he never told the defendant that he could take a credit for the plumbing work and apply it to his rent. The Court credits the plaintiff’s testimony on these issues, and finds that the defendant has failed to pay the plaintiff any rent for the months of July 2007 and August 2007, owes a balance of $400.00 per month for the months of May 2007 and June 2007, and currently owes the plaintiff a total of $2,300.00 in unpaid rent.

The Court finds that, on June 26, 2007, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent.

At trial, the defendant testified that there were defective conditions in the premises.

The defendant testified that, at the inception of the tenancy, three (3) windows in the living room were broken, the bathtub needed to be refinished, and the door hinges were secured only by sheetrock screws. He testified that the plaintiff never made any repairs to these conditions. The plaintiff testified that, before the defendant moved into the premises, it was completely renovated by a professional contractor, and that no windows were broken at the inception of the defendant’s tenancy. He testified that the City of Fall River Department of Inspectional Services, Minimum Housing Division (‘Minimum Housing’) inspected the bathtub before the defendant moved into the premises and found that the bathtub was ‘fine.’ He also testified that the door hinges were not defective. The Court credits the plaintiff’s testimony on these issues.

The defendant testified that, at the inception of the tenancy, there was a washer and dryer in the basement of the building in which the premises is located, and that, one month after he moved into the premises, the plaintiff removed the washer and dryer, and replaced them with coin-operated machines. He testified that these machines did not work for six (6) months, and that the washer still does not work. The plaintiff testified that he informed the defendant at the inception of the tenancy that no washer and dryer was included in his rent, and that the coin operated machines which he has installed work properly. The Court credits the plaintiff’s testimony on these issues.

The Court finds that there was no credible evidence at trial that there were broken windows in the living room of the premises at any time during the defendant’s tenancy. Accordingly, the Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this condition.

The Court finds that there was no credible evidence at trial that the condition of the bathtub, the door hinges, or the washer and dryer, were serious, or that any of these conditions endangered the defendant’s health or safety, or that any of these conditions diminished the fair rental value of the premises. Accordingly, the Court finds that the existence of these conditions did not constitute a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on these conditions.

The Court finds that the plaintiff has established his case for possession of the premises and damages for unpaid rent in the amount of $2,300.00, plus costs.

ORDER FOR JUDGMENT

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

1. Judgment enter for the plaintiff for possession of the premises and damages for unpaid rent in the amount of $2,300.00, plus costs.

2. Judgment enter for the plaintiff on the defendant’s counterclaims.

3. Execution issue ten (10) days after the date that judgment enters.

07-SP-01022

Felix Osagie Plaintiff vs. Steve Rodrigues Defendant

JUDGMENT

Judgment for the Plaintiff for possession, unpaid rent of $2,300.00, plus costs.

Judgment for the Plaintiff as well, as to Defendant’s counterclaim issues.

Accordingly, judgment enters at 10:00 a.m. this 17th day of August 2007.

MARK R. JEFFRIES

CLERK MAGISTRATE

August 17, 2007

End Of Decision

HOUSING COURT

Carlos M. Sardinha PLAINTIFF v. Kelly Goodwin DEFENDANT

Docket # Docket No. 07-SP-00844

Parties: Carlos M. Sardinha PLAINTIFF v. Kelly Goodwin DEFENDANT

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: August 3, 2007

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

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

The defendant, Kelly Goodwin, has resided at 703-705 Rodman Street, Apt. B1, Fall River, MA (“the premises”) as a tenant at will since May 2006. The plaintiff, Carlos M. Sardinha, is the owner of the premises and is the defendant’s landlord. The rent for the premises is $450.00 per month and is due on the first day of each month, no later than the fourth day of each month. The defendant has failed to pay the plaintiff any rent for the months of April 2007 through July 2007 and currently owes the plaintiff a

total of $1,800.00 in unpaid rent.

The Court finds that, on May 31, 2007, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent.

The defendant filed a written answer and counterclaims based on breach of the implied warranty of habitability, and violations of G.L. c. 186, s.14, G.L. c. 239, s.2A, and G.L. c. 186, s.18.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant testified that, on March 23, 2007, she called the City of Fall River Department of Public Health, Division of Minimum Housing Standards (“Minimum Housing”) because her son had developed eczema from the insulation in the bathroom dripping on him. The Court finds that, on March 28, 2007, Minimum Housing inspected the premises and found the following conditions: “Bathroom ceiling damaged from leaks from upstairs; Insulation exposed above ceiling causing health hazard for child; Bathtub faucet has no cover. Pipe exposed; Drain cover missing for bathtub; Frame to shower broken. Hazardous; Bathroom shower tiles missing on wall; Electrical socket loose in child’s bedroom eastside; Refrigerator with doors in apartment broken. Must be moved or doors taken off. Safety hazard; Tenant claims kitchen outlet above sink shorting out; Windows throughout apartment have opening and closing difficulties; Flooring near refrigerator has bulked due to leaks from refrigerator; Exterior trim board on the northwest side missing; Downspout also missing.” The Court finds that Minimum Housing re-inspected the premises on May 23, 2007 and found that the bathroom ceiling, the exposed insulation, the bathtub faucet, and the loose electrical socket had been repaired, and found that the refrigerator had been removed from the premises. The Court finds that, during this re-inspection, Minimum Housing also found the following additional conditions: “Smoke and carbon monoxide detectors not on; Possible cross-metering from cellar meter. (1st floor). Need licensed electrian (sic) report; No exterior light for porch; Name and contact # to be posted on exterior of house or in hallway; Screens in apartment not secured in windows; Please clean cellar of debris.”

The defendant testified that the bathroom shower enclosure had been broken since the inception of her tenancy, and that she notified the plaintiff of the existence of this condition. She testified that, in mid-August 2006, she notified the plaintiff that

the oven in the premises did not work, that the stove top did not light properly, and that the refrigerator leaked and would not keep food cold. She testified that the leaking refrigerator damaged the kitchen floor, and that the wood underneath the refrigerator is rotted. She testified that, on an unspecified date in February 2007, she purchased a new refrigerator and stove and deducted the cost of the new appliances from her monthly rent. She testified that the plaintiff did not remove the old appliances from the premises for 2€ months. She also testified that a pipe leaked into the bathroom ceiling and that, on an unspecified date in April 2007, the bathroom ceiling fell. She testified that, although she notified the plaintiff of this condition, no repairs were made for two (2) months. She testified that the only thing the plaintiff did was to put plastic up on the ceiling, but that he did not repair the ceiling. She testified that, at an unspecified time during her tenancy, there was a pipe sticking out of the wall in the bathtub, that the electric outlets in her son’s bedroom were broken, and that there were no smoke detectors. She also testified that she believes that she is paying for the electricity for all three floors of the building. She testified that there are three rooms in the basement filled with debris, some of it within two feet of the boiler. The Court credits the defendant’s testimony on these issues, except that the Court does not credit the defendant’s testimony on the issues of the repairs to the bathroom ceiling and the pipe leaking water.

James DeMarco, the plaintiff’s maintenance worker, testified that, when he repaired the bathroom ceiling, he took a few tiles down and removed the insulation, then covered the hole with plastic, and completed the repairs to the ceiling the next time he was in the apartment. He testified that the pipe to which the defendant referred is a 100 year old gas pipe that had formerly been used for lighting, and that it was not leaking water, although water from another source did come down into the ceiling. He testified that he repaired the windows, the electric sockets, put a spigot on the tub, replaced some tiles in the bathroom, and took the shower frame down. He testified that the kitchen floor did not need to be repaired, and that it has “a little seam,” but is not rotted. The Court credits this testimony, but finds that there was no evidence at trial that the plaintiff appealed the Minimum Housing’s determination that the condition of the kitchen floor constituted a violation of the State Sanitary Code.

The plaintiff testified that he notified the defendant on April 8, 2007 that he would come to the premises on April 10, 2007 to repair the windows and the electric sockets. He testified that the repairs to the windows were completed by April 13, 2007. The plaintiff testified that all repairs required by the March 28, 2007 Minimum Housing Report were completed by May 8, 2007, with the exception of the kitchen floor and the downspout. The plaintiff testified that the portions of the basement which are not behind closed doors have been cleaned. The Court does not credit this testimony.

The plaintiff testified that, on May 30, 2007, he came to the premises with Mr. DeMarco to investigate the possible commingling of electricity in the basement. He testified that he notified the defendant that he wanted to shut the electric meter off for a

minute or two to conduct this investigation. The defendant testified that, on this occasion, the plaintiff pushed her with his arms, and told Mr. DeMarco to shut off the electricity. She testified that Mr. DeMarco said, “Why?” She testified that she called her mother about this incident and that, shortly after she talked to her mother, her father arrived at the premises. She testified that, as her father arrived, the plaintiff and Mr. DeMarco were coming up from the basement, and her father confronted the plaintiff about putting his hands on her. She testified that the plaintiff “got in his face,” and that her father “sat him down.” The plaintiff testified that, at this point, the defendant’s father picked him up and shoved him into the steps. The Court credits the defendant’s testimony on these issues, and finds that there was no evidence at trial as to whether there was commingling of the electricity in the premises. Accordingly, the Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this condition.

The defendant testified that there are rats in the basement. The plaintiff also testified that there are rats in the basement, and that he uses rat poison to control this condition. The Court credits the parties’ testimony on this issue, but finds that there was no evidence at trial as to when this condition arose. The Court also finds that neither of these Minimum Housing Reports cited the plaintiff for the presence of rats in the premises. The Court is unable to compute damages for any period of time during which this condition existed. Accordingly, the Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this condition.

The Court finds that the defective shower enclosure, the defective oven and stove, the leaking refrigerator, the leaking bathroom ceiling, the plaintiff’s failure to remove the old stove and refrigerator from the premises, and the defective windows are conditions which constitute breaches of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that the plaintiff knew or should have known of the existence of the defective shower enclosure, the defective oven and stove, the leaking refrigerator and the fact that he had not removed the old appliances from the premises prior to the defendant being in arrears in her rent. Accordingly, the Court finds that the defendant is entitled to a defense to possession and to damages under G.L. c. 239, s.8A based on those conditions which existed before the defendant was in arrears in her rent.

The Court finds that the remaining conditions listed in the March 28, 2007 and May 23, 2007 Minimum Housing Reports are conditions which, in the aggregate, constitute material breaches of the implied warranty of habitability. Id. The Court finds that the defendant is entitled to damages under G.L. c. 239, s.8A based on all of these defective conditions. The Court finds that there is no evidence that the plaintiff knew or should have known about any of the remaining defective conditions in the premises until he received the March 28, 2007 and May 23, 2007 Minimum Housing Reports, respectively, and, therefore, does not award the defendant

any damages based on these conditions prior to March 28, 2007 or May 23, 2007, respectively.

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 in which the defective conditions existed. The Court finds that the fair rental value of the premises is $450.00 per month. The Court finds that the defendant is entitled to the following rent abatements: (1) for the defective shower enclosure in the premises for the 431 day period between May 1, 2006 and July 5, 2007, ten per cent (10%); (2) for the defective oven and stove, and the leaking refrigerator in the premises for the 198 day period between August 15, 2006 and February 28, 2007[1], ten per cent (10%); (3) for the plaintiff’s failure to remove the old stove and refrigerator from the premises for the 84 day period between March 1, 2007 and May 23, 2007, ten per cent (10%); (4) for the defective bathroom ceiling in the premises for the 53 day period between April 1, 2007[2] and May 23, 2007, fifteen per cent (15%); (5) for the remaining conditions in the March 28, 2007 Minimum Housing Report for the 100 day period between March 28, 2007 and July 5, 2007, fifteen per cent (15%); and (6) for the remaining conditions in the May 23, 2007 Minimum Housing Report for the 44 day period between May 23, 2007 and July 5, 2007, fifteen per cent (15%), calculated as follows: ($14.79/day[3] x 10% = $1.48 x 431 = $637.88) + ($14.79/day x 10% = $1.48 x 198 = $293.04) + ($14.79/day x 10% = $1.48 x 84 = $124.32) + ($14.79/day x 15% = $2.22 x 53 = $117.66) + ($14.79/day x 15% = $2.22 x 100 = $222.00) + ($14.79/day x 15% = $2.22 x 44 = $97.68) = $1,492.58.

G.L. c. 186, s.14 provides, in pertinent part: “Any lessor or any landlord of any building or part thereof occupied for dwelling purposes…who directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant…shall…be liable for actual and consequential damages, or three months’ rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee…”

The Court finds that the plaintiff’s failure to repair the defective shower enclosure in the premises for the 431 day period between May 1, 2006 and July 5, 2007, his failure to repair the defective oven and stove, and the leaking refrigerator in the premises for the 198 day period between August 15, 2006 and February 28, 2007, and his failure to remove the old stove and refrigerator from the premises for the 84 day period between March

1, 2007 and May 23, 2007 constitute serious interferences with the defendant’s quiet enjoyment of the premises. The defendant is not entitled to recover cumulative damages arising from the same facts under every theory of recovery, but she is entitled to recover damages under the theory which results in the largest award of damages. Wolfberg v. Hunter, 385 Mass. 390 (1982). The plaintiff’s breach of the implied warranty of habitability with respect to the defective shower enclosure, the defective oven and stove, the leaking refrigerator and the plaintiff’s failure to remove the old appliances from the premises and the plaintiff’s violation of G.L. c. 186, s.14 arise from the same facts and involve the same damages. An award of damages for breach of warranty would be duplicative of the damages awarded for violation of G.L. c. 186, s.14. The Court will award damages for these breaches of the implied warranty of habitability under G.L. c. 186, s.14, since that provides the largest recovery to the defendant, and will adjust the award of damages for breach of the implied warranty of habitability by subtracting the sum of $1,055.24[4] from the total award of damages on that claim. This results in a net award of damages for breach of the implied warranty of habitability of $437.34. The Court finds that the defendant is entitled to damages under G.L. c. 186, s.14 in the amount of $1,350.00, which represents three (3) months rent, based on this claim.

The Court finds that the plaintiff’s actions on May 30, 2007 in pushing the defendant also constitute a serious interference with the defendant’s quiet enjoyment of the premises.

The defendant is not entitled to a separate award of statutory damages for each incident that she contends constitutes an interference with quiet enjoyment. “When three months’ rent has been assessed for one violation, the incentive function of the triple rent provision is fulfilled. Therefore, we hold that a tenant proceeding under s.14 may collect only one such award, covering all claims that the tenant has raised or reasonably could have raised in the suit.” Simon v. Solomon, 385 Mass. 91, 110 (1982). Accordingly, the Court finds that the defendant is not entitled to an additional award of damages under G.L. c. 186, s.14 based on this violation.

and convincing evidence5 that such action was not a reprisal against the tenant, and that the plaintiff 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, even if the tenant had not…engaged in such activity.”

G.L. c. 186, s.18 provides, in pertinent part: “Any person or agent thereof who threatens to or takes reprisals against any tenant of residential premises for the tenant’s act of…reporting to the board of health or, in the city of Boston, to the commissioner of housing inspection or to any other board having as its objective the regulation of residential premises; or reporting or complaining of such violation or a suspected violation in writing to the landlord or to the agent of the landlord…shall be liable for damages which shall not be less than one month’s rent or more than three months’ rent, or the actual damages sustained by the tenant, whichever is greater, and the costs of the suit, including a reasonable attorney’s fee. The receipt of any notice of termination of tenancy except for non-payment of rent or, of increase in rent or, of any substantial alteration in the terms of tenancy within six months after the tenant has…made such report or complaint…shall create a rebuttable presumption that such notice or other action is a reprisal against the tenant for engaging in such activities. Such presumption shall be rebutted only by clear and convincing evidence that such person’s action was not a reprisal against the tenant and that such person 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 tenant engaging in, or the belief that tenants had engaged in, activities protected under this section.”

The Court finds that, on May 31, 2007, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent. The Court finds that the defendant engaged in statutorily protected activity within six (6) months of the service of the May 31, 2007 Notice To Quit and, accordingly, is entitled to the statutory presumption of retaliation under G.L. c. 239, s.2A with respect to her affirmative defense to possession. The Court finds that it is a reasonable inference that the plaintiff decided to terminate the defendant’s tenancy because she had called Minimum Housing in March 2007, and because Minimum Housing cited the plaintiff for additional violations after re-inspecting the premises on May 23, 2007. The Court finds, on the facts of this case, that the plaintiff has failed to establish with clear and convincing evidence that he did not retaliate against the defendant. The Court finds that the plaintiff did not have sufficient independent justification for serving the May 31, 2007 Notice To Quit, and finds that he took this action in reprisal for the defendant’s actions in calling Minimum Housing in March 2007. Accordingly, the Court finds that the defendant is entitled to possession of the premises under G.L. c. 239, s.2A.

The Court finds, on the facts of this case, that the defendant has established by a preponderance of the evidence that the plaintiff’s actions constitute reprisals with the meaning of

G.L. c. 186, s.18. Accordingly, the Court finds that the defendant is entitled to damages under G.L. c. 186, s.18 in the amount of $1,350.00, which represents three (3) months’ 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 enter for the defendant for possession of the premises under G.L. c. 239, s.2A.

2. Judgment enter for the plaintiff for damages for unpaid rent in the amount of $1,800.00, plus costs in the amount of $180.00, a total of $1,980.00.

3. Judgment enter for the defendant for damages on her counterclaim for breach of the implied warranty of habitability in the amount of $437.34.

4. Judgment enter for the defendant on her counterclaim under G.L. c. 186, s.14 in the amount of $1,350.00.

5. Judgment enter for the defendant on her counterclaim under G.L. c. 186, s.18 in the amount of $1,350.00.

6. The foregoing orders for judgment paragraphs 2 through 5 result in a net judgment for the defendant for damages in the amount of $1,157.34.

7. Execution issue ten (10) days after the date that judgment enters.

cc: Carlos M. Sardinha

Kelly Goodwin

Docket No. 07-SP-00844

Carlos M. Sardinha Plaintiff vs. Kelly Goodwin Defendant

JUDGMENT

Judgment for the Plaintiff for unpaid rent of $1,800.00, plus costs of $180.00, for a total of $1,980.00.

Judgment for the Defendant for possession pursuant to M.G.L. Chapter 239, s.2A, plus combined counterclaim damages in the sum of $3,137.34 as provided in paragraphs 3, 4 and 5 of the Court’s Order for Judgment; further resulting in a net judgment to Defendant of $1,157.34 as provided in paragraph 6 of the Court’s Order for Judgment.

Accordingly, judgment enters at 10:00 a.m. this 6th day of August 2007.

MARK R. JEFFRIES

CLERK MAGISTRATE

August 6, 2007

Docket #07-SP-00844

Mailing List:

Carlos M. Sardinha

932 Blossom Rd.

Westport, MA 02790

Kelly Goodwin

Apt. B1

703-705 Rodman St.

Fall River, MA 02721

————————-

[1] The Court will compute damages for these conditions from August 15, 2006 through February 28, 2007, since there was no evidence at trial as to the exact date in mid-August 2006 or the exact date in February 2007 on which these conditions arose or were repaired.

[2] The Court will compute damages for this condition from April 1, 2007 since there was no evidence at trial as to the exact date in April 2007on which this condition arose.

[3] The per diem rental amount is calculated as follows: $450.00 x 12 = $5,400.00 ? 365 = $14.79.

[4] This adjustment is calculated by excluding from recovery under G.L. c. 239, s.8A the rent abatements of $637.88 for the defective shower enclosure, $293.04 for the defective oven and stove, and the leaking refrigerator, and $124.32 for the failure to remove the old appliances from the premises.

[5] “Clear and convincing” evidence is that which “induces in the mind of the trier a reasonable belief that the facts 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).

End Of Decision

HOUSING COURT

John Sousa PLAINTIFF v. Kristi Carroll DEFENDANT

Docket # Docket No. 07-SP-01350

Parties: John Sousa PLAINTIFF v. Kristi Carroll DEFENDANT

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: October 11, 2007

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

This is a summary process action in which the plaintiff seeks to recover possession of the premises from the defendant and damages for unpaid rent.

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

The defendant, Kristi Carroll, has resided at 752 Dwelly Street, Third Floor East, Fall River, MA (“the premises”) as a tenant at will at all times relevant to this action. The

plaintiff, John Sousa, is the owner of the premises and is the defendant’s landlord. The rent for the premises is $600.00 per month and is due in two (2) installments of $300.00 on the third and seventeenth days of each month. The defendant has failed to pay the plaintiff any rent for the months of August 2007 through October 2007, and currently owes the plaintiff a total of $1,800.00 in unpaid rent.

The Court finds that, on August 28, 2007, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent.

At trial, the defendant’s brother, Ricky Carroll, Jr., testified that the defendant’s kitchen sink has been leaking since mid-August 2007, that he tried to repair it by sealing it, and then put piping in a few days before the trial of this action. The plaintiff testified that the defendant did not notify him that there were any defective conditions in the premises until September 30, 2007. The Court credits the testimony of Mr. Carroll and the plaintiff on these issues.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The Court finds that the defective kitchen sink in the premises is a condition which constitutes a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that there was no evidence at trial that the plaintiff either knew or should have known of the existence of this condition until September 30, 2007, the date on which Mr. Carroll made the repair to the sink. Accordingly, the Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this condition.

The Court finds that the plaintiff has established his case for possession of the premises and damages for unpaid rent in the amount of $1,800.00, plus costs.

At trial, the defendant testified that she needs additional time in which to locate alternative housing.

G.L. c. 239, s.9 provides, in pertinent part: “In an action of summary process to recover possession of premises occupied for dwelling purposes, other than a…dwelling unit in a lodging house or rooming house wherein the occupant has maintained such occupancy for less than three consecutive months, where a tenancy has been terminated without fault of the tenant, either by operation of law or by act of the landlord, except by a notice to quit for

non-payment of rent as provided in section twelve of chapter one hundred and eighty-six, a stay or stays of judgment and execution may be granted, as hereinafter provided, for a period not exceeding six months or for periods not exceeding six months in the aggregate, or, for a period not exceeding twelve months, or for periods not exceeding twelve months in the aggregate in the case of premises occupied by a handicapped person or an individual sixty years of age or older, as the court may deem just and reasonable, upon application of the tenant….”

The Court finds that, since the defendant is a tenant at will whose tenancy was terminated for non-payment of rent, she is not eligible to request a stay in the issuance of the execution under G.L. c. 239, s.9.

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 enter for the plaintiff for possession of the premises and damages for unpaid rent in the amount of $1,800.00, plus costs.

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

cc: Arthur M. Bakst, Esq.

Kristi Carroll

End Of Decision

HOUSING COURT

Hamilton Thom-Manuel v. Joseph Spadea, Maurine Spadea and Jeffery Spadea

SOUTHEASTERN DIVISION

Docket # 07-SP-05681

Parties: Hamilton Thom-Manuel v. Joseph Spadea, Maurine Spadea and Jeffery Spadea

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: September 17, 2007

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

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

The defendants, Joseph Spadea, Maurine Spadea and Jeffery Spadea, have resided at 90 Belcher Avenue, Brockton, MA (“the premises”) as tenants at will since January 2007. The plaintiff, Hamilton Thom-Manuel, is the owner of the premises and is the defendants’ landlord. The rent for the premises is $1,200.00 per month and is due on the first day of each month.

The plaintiff testified that the defendants have failed to pay him any rent for the months of July 2007 and August 2007, and currently owe him a total of $2,400.00 in unpaid rent. The defendant Maurine Spadea (“Mrs. Spadea”) testified that the defendants have paid all of their rent, and produced receipts at trial (Defendants’ Exhibits 2 and 3) to support her testimony. The Court credits the testimony of Mrs. Spadea on this issue, and finds that the defendants do not currently owe the plaintiff any unpaid rent. The Court also finds that the defendants did not pay rent for the month of June 2007 until August 10, 2007, and paid rent for July 2007 and August 2007 at an unspecified date, as shown in Defendants’ Exhibit 3.

The Court finds that, on July 20, 2007, the plaintiff served the defendants with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent.

The defendants filed a written answer and counterclaims based on conditions in the premises and violations of G.L. c. 186, s.14, G.L. c. 239, s.2A and G.L. c. 186, s.18.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

Mrs. Spadea testified that there was no hot water in the premises for two (2) months during 2007. She testified that she notified the City of Brockton Board of Health (“Board of Health”) of the lack of hot water. The Court credits this testimony.

The Court finds that, on July 12, 2007, the Board of Health inspected the premises and declared the entire building in which the premises is located unfit for human habitation due to the following conditions: “Failure to provide hot water; dangerous and unsafe electrical conditions noted by City wiring inspector; Failure to provide smoke detectors; Failure to provide carbon monoxide alarm.” Mrs. Spadea testified that the defendants were unable to reside at the premises from July 12, 2007 through July 21, 2007. The Court credits this testimony.

Jeffery Spadea testified that the defendants had to boil water in order to bathe for a two month period because the plaintiff did not want to buy a water tank for the defendants. The Court credits this testimony. The plaintiff testified that he and the defendants verbally agreed that the defendants would reimburse him for the cost of oil, which heats the hot water. He testified that, when

the defendants stopped paying rent in June 2007, he could not afford to buy oil. The Court credits this testimony, but finds that the plaintiff has an obligation to provide hot water to the premises, even if the defendants have not paid the rent. The Court finds that the plaintiff’s failure to provide hot water to the premises for a two (2) month period in 2007 constitutes a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that the defendants were in arrears in their rent at the time they notified the plaintiff of the lack of hot water in the premises. Accordingly, the Court finds that the defendants are not entitled to a defense to possession under G.L. c. 239, s.8A based on this condition. The Court finds that the defendant is entitled to damages under G.L. c. 239, s.8A based on this condition.

The Court finds that the remaining conditions listed in the July 12, 2007 Board of Health Report, in the aggregate, are conditions which constitute material breaches of the implied warranty of habitability. Id. The Court finds that the defendants were in arrears in their rent at the time the plaintiff was notified of these conditions by the Board of Health. Accordingly, the Court finds that the defendants are not entitled to a defense to possession under G.L. c. 239, s.8A based on these conditions. The Court finds that the defendants are entitled to damages under G.L. c. 239, s.8A based on these conditions.

The Court finds that the plaintiff’s failure to provide hot

water to the defendants for a two (2) month period in 2007 constitutes a serious interference with the defendants’ quiet enjoyment of the premises. The defendants are not entitled to recover cumulative damages arising from the same facts under every theory of recovery, but they are entitled to recover damages under the theory which results in the largest award of damages. Wolfberg v. Hunter, 385 Mass. 390 (1982). The plaintiff’s breach of the implied warranty of habitability claim with respect to the lack of hot water in the premises for a two (2) month period in 2007 and the defendants’ interference with quiet enjoyment claim arise from the same set of facts and involve the same damages. The Court will award damages for this condition under G.L. c. 186, s.14 since that provides the defendants with the largest recovery, and will adjust the award of damages for breach of the implied warranty of habitability by subtracting the sum of $1,183.80[2] from the total award of damages on that claim. This results in a net award of damages for breach of the implied warranty of habitability of $394.50. The Court finds that the defendants are entitled to damages under G.L. c. 186, s.14 in the amount of $3,600.00, which represents three (3) months rent, based on this claim.

shall not be less than one month’s rent or more than three months’ rent, or the actual damages sustained by the tenant, whichever is greater, and the costs of the suit, including a reasonable attorney’s fee. The receipt of any notice of termination of tenancy except for non-payment of rent or, of increase in rent or, of any substantial alteration in the terms of tenancy within six months after the tenant has…made such report or complaint…shall create a rebuttable presumption that such notice or other action is a reprisal against the tenant for engaging in such activities. Such presumption shall be rebutted only by clear and convincing evidence that such person’s action was not a reprisal against the tenant and that such person 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 tenant engaging in, or the belief that tenants had engaged in, activities protected under this section.”

Mrs. Spadea testified that, when the defendants returned to the premises on July 21, 2007, following the Board of Health’s order that the premises were unfit for human habitation until the listed conditions had been repaired, they found that the plaintiff had served them with a 14 Day Notice To Quit for Non-Payment of Rent. The Court credits this testimony. The Court finds that, on July 20, 2007, the plaintiff served the defendants with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent. The Court finds that the defendants are entitled to the statutory presumption of retaliation under G.L. c. 239, s.2A, since the July 20, 2007 Notice To Quit was served within six (6) months of the date on which they contacted the Board of Health with respect to the lack of hot water in the premises. The Court finds, on the facts of this case, that the plaintiff has failed to establish with clear and convincing evidence that he did not retaliate against the defendants. Accordingly, the Court finds that the defendants are entitled to possession of the premises under G.L. c. 239, s.2A.

The Court finds that the defendants are not entitled to the statutory presumption of retaliation under G.L. c. 186, s.18 since the July 20, 2007 Notice To Quit was served on them for non-payment of rent. The Court finds, on the facts of this case, that the defendants have established by a preponderance of the evidence that the plaintiff retaliated against them. The Court finds that it is a reasonable inference that the plaintiff served the July 20, 2007 Notice To Quit on the defendants because they had contacted the Board of Health on July 12, 2007, an action which resulted in the building in which the premises is located to be deemed unfit for human habitation. Accordingly, the Court finds that the defendants are entitled to damages under G.L. c. 186, s.18 in the amount of $3,600.00, which represents three (3) months 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 enter for the defendants for possession of the premises under G.L. c. 239, s.2A.

2. Judgment enter for the defendants on the plaintiff’s claim for damages for unpaid rent.

3. Judgment enter for the defendants on their counterclaim for breach of the implied warranty of habitability in the amount of $394.50.

4. Judgment enter for the defendants on their counterclaim under G.L. c. 186, s.14 in the amount of $3,600.00.

5. Judgment enter for the defendants on their counterclaim under G.L. c. 186, s.18 in the amount of $3,600.00.

6. The foregoing order for judgment paragraphs 2 through 5 result in a net judgment for the defendants for damages in the amount of $7,594.50.

7. Execution issue ten (10) days after the date that judgment enters.

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[1] The per diem rental amount is calculated as follows:$1,200.00 x 12 = $14,400.00 ? 365 = $39.45.

[2] The total award of damages for breach of the implied warranty of habitability with respect to this condition is $1,183.80.

End Of Decision

HOUSING COURT

Lisa Emily Brennan and Edward Brennan v. Deborah Perry

SOUTHEASTERN DIVISION

Docket # 07-SP-07177

Parties: Lisa Emily Brennan and Edward Brennan v. Deborah Perry

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: January 22, 2008

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

This is a summary process action in which the plaintiffs seek to recover possession of the premises from the defendant. The defendant filed a written answer 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 defendant, Deborah Perry, has resided at 21 Leon Street, Marshfield, MA (“the premises”) since April 1, 2006. The plaintiffs, Lisa Emily Brennan and Edward Brennan, are the owners of the premises. The defendant occupied the premises under a written Section 8 Housing Choice Voucher Program Model Dwelling Lease (“Lease”) administered by South Shore Housing Development Corporation (“SSHDC”) from April 1, 2006 through March 31, 2007, and as a tenant at sufferance thereafter. The contract rent for the premises is $1,300.00 per month and is due on the first day of each month. The plaintiffs do not contend that the defendant owes them any unpaid rent.

The Court finds that, on November 5, 2007, the plaintiffs served the defendant with a Summary Process Summons and Complaint on the following grounds: “per the Judgment of First Justice Anne Kenney Chaplin (dated: 9/4/07) you are a tenant at sufferance and are holding over without any agreement expressed or inferrable from all the circumstances.”

The defendant filed a written answer and counterclaims based on conditions in the premises and violations of G.L. c. 239, s.2A, G.L. c. 186, s.18, and G.L. c. 93A.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law…There shall be no recovery of possession under this chapter if the amount found by the court to be due the landlord equals or is less than the amount found to be due the tenant or occupant by reason of any counterclaim or defense under this section…”

The Court finds that, on September 21, 2007, SSHDC conducted its annual inspection of the premises and found the following conditions: “Living room: Properly repair draft/gap at floor furnace. Tenant has rags/cloth in gaps-landlord properly repair gaps. Kitchen: Repair faucet/leak. Repair water stain ceiling as needed-kilz. Bathroom Repair/faucet leak at head.” The Court finds that, on October 17, 2007, SSHDC notified the plaintiffs that the premises had failed the annual inspection because of these conditions. The Court finds that SSHDC conducted a re-inspection of the premises on October 26, 2007 and, on November 3, 2007, notified the plaintiffs that the following conditions still existed: “Living room Properly repair draft/gap at floor furnace. Tenant has rags/cloth in gaps-landlord properly repair gaps. Repair water stain ceiling as needed-kilz.”

The defendant testified that the furnace is in the living room of the premises, in front of the doorway to one of the bedrooms, and that it is a “floor furnace.” She testified that the original furnace in the premises was replaced approximately one (1) year ago, and that this furnace is smaller than the original furnace. She testified that the plumbers who installed it put wood around it to deal with the gaps. She testified that the gaps are drafty in two (2) spots, “almost like a hole that goes down,” and that she puts rags into the gaps. She testified that, although this condition has not been repaired, and that it is still drafty, SSHDC has passed the premises. She testified that the leaking faucets and the stain on the ceiling have been repaired. The Court credits this testimony.

The Court finds that there was no credible evidence at trial that the leaking faucets, the stained ceiling or the gap at the floor furnace were serious, or that any of these conditions endangered the health or safety of the defendant, or that they diminished the fair rental value of the premises. Accordingly, the Court finds that the existence of these conditions did not constitute a material breach of the implied warranty of

habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973).

In her written answer and counterclaims, the defendant contended that the plaintiffs violated G.L. c. 239, s.2A and G.L. c. 186, s.18 in that they served her with the Summary Process Summons and Complaint in this action within six (6) months after she exercised her statutory rights.

G.L. c. 239, s.2A provides, in pertinent part: “It shall be a defense to an action for summary process that such action or the preceding action of terminating the tenant’s tenancy, was taken against the tenant for the tenant’s act of commencing, proceeding with, or obtaining relief in any judicial or administrative action the purpose of which action was to obtain damages under or otherwise enforce, any federal, state or local law, regulation, by-law, or ordinance, which has as its objective the regulation of residential premises, or…reporting a violation or suspected violation of law as provided in section eighteen of chapter one hundred and eighty-six….The commencement of such 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 commenced, proceeded with or obtained relief in such action, (or)..made such report..shall create a rebuttable presumption that such summary process is a reprisal against the tenant for engaging in such activities…Such presumption may be rebutted only by clear and convincing evidence[1] that such action was not a reprisal against the tenant, and that the plaintiff 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, even if the tenant had not…engaged in such activity.”

tenant and that such person 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 tenant engaging in, or the belief that tenants had engaged in, activities protected under this section.”

The plaintiff Edward Brennan testified that the plaintiffs would put the premises on the market “immediately” if it were vacant, because their mortgage payments have gone from $1,507.00 per month at the inception of the defendant’s tenancy to $2,100.00 per month, that their interest rate has increased to 11.25%, and that they are three (3) months behind on their mortgage. The Court credits this testimony.

The Court finds that the defendant is entitled to the statutory presumption of retaliation. The Court finds, on the facts of this case, that the plaintiffs have established by clear and convincing evidence that they did not retaliate against the defendant. The Court finds that the plaintiffs served the Summary Process Summons and Complaint on the defendant on November 5, 2007 because of their continuing need to sell this piece of real estate which had become an unprofitable venture for them. The Court finds that the plaintiffs had sufficient independent justification for serving the November 5, 2007 Summary Process Summons and Complaint, and would have in fact taken this action, in the same manner and at the same time the action was taken, even if the defendant had not commenced, proceeded with or obtained relief in the prior summary process action between the parties. Accordingly, the Court finds that the defendant is not entitled to a defense to possession under G.L. c. 239, s.2A, or to damages under G.L. c. 186, s.18.

The plaintiff Edward Brennan testified that the plaintiffs own two (2) pieces of residential real estate in Massachusetts. The Court credits this testimony. The Court finds that the plaintiffs are engaged in the trade or business of residential real estate, within the meaning of G.L. c. 93A, s.(2), which prohibits “(a) Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” The Attorney General, acting pursuant to statutory authority under G.L. c. 93A, s.2 has promulgated regulations (940 CMR 3.17 et seq.) which identify conduct on the part of an owner of residential property which constitutes an unfair or deceptive act or practice. The Court finds that there was no credible evidence at trial that the plaintiffs had violated any of the provisions of G.L. c. 93A or the regulations promulgated thereunder. Accordingly, the Court finds that the defendant is not entitled to damages under G.L. c. 93A.

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 enter for the plaintiffs for possession of the premises, plus costs.

2. Judgment enter for the plaintiffs on the defendant’s counterclaims.

3. Execution issue ten (10)days after the date that judgment enters.

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[1] “Clear and convincing” evidence is that which “induces in the mind of the trier a reasonable belief that the facts 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).

End Of Decision

HOUSING COURT

Walter Bronhard v. Jeffrey Talbot and Danielle Beaulieu

SOUTHEASTERN DIVISION

Docket # 07-SP-00642

Parties: Walter Bronhard v. Jeffrey Talbot and Danielle Beaulieu

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: January 7, 2008

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

This is a summary process action in which the plaintiff sought to recover possession of the premises from the defendants and damages for unpaid rent. The defendants filed a written answer 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 defendants, Jeffrey Talbot and Danielle Beaulieu, resided at 56 St. Joseph St., Apt. 520, Fall River, MA (“the premises”) from September 15, 2006 until they returned the keys to the premises to the plaintiff’s property manager, Louis Mendonca, on August 30, 2007. The plaintiff, Walter Bronhard, is the owner of the premises and was the defendants’ landlord. The rent for the premises was $875.00 per month and was due on the first day of each month. The defendants have failed to pay any rent to the plaintiff for the months of February 2007 through August 2007, owe a balance of $250.00 for the month of January 2007, and currently owe the plaintiff a total of $6,375.00 in unpaid rent.

The Court finds that, on March 7, 2007, the plaintiff served the defendants with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent.

The defendants filed a written answer and counterclaims based on breach of the implied warranty of habitability, violations of G.L. c. 186, s.14, G.L. c. 186, s.18, G.L. c. 186, s.19,

G.L. c. 93A, and intentional infliction of emotional distress.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the

condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant Danielle Beaulieu (“Ms. Beaulieu”) testified that, at the inception of the defendants’ tenancy, she and the defendant Jeffrey Talbot (“Mr. Talbot”) gave the plaintiff’s property manager, Louis Mendonca (“Mr. Mendonca”), a written list of certain conditions in the premises that needed to be repaired. She testified that this list included the fact that the closet doors in the hallway of their apartment were not properly hinged, that two (2) of the doors for the bedroom closet were missing, that the doors to the washer-dryer area were lying on the floor, that the dishwasher leaked, that the windows were very drafty, that the air conditioner unit “was not right”, that the bathroom exhaust fan did not work, that the sink was cracked, that some of the lightbulbs were not working, that seven (7) electric outlets did not work, that the freezer and the refrigerator had no light, that the refrigerator did not keep food at the proper temperature, and that there were wires hanging in the bedroom. The Court credits this testimony.

Ms. Beaulieu testified that, on November 23, 2006, there was a water leak in the ceiling in the hallway of the defendant’s apartment, which dripped down the ceiling and the walls, and that the water level was over their feet. She testified that she and Mr. Talbot called Mr. Mendonca immediately, and that he told them he would send someone the next day. She testified that this leak was never fixed, but that the carpet did eventually dry. She testified that the ceiling then leaked every time it rained, as did the ceiling vent in the bathroom. She testified that, on February 14, 2007, the ceiling fell down, leaving a large hole, and that the water ran under the dishwasher and stove. She testified that she immediately notified Mr. Mendonca, who told her he would try to come, and that a maintenance man gave the defendants trash barrels to catch the water. She testified that no repairs were made, so she called the Board of Health. She testified that, when Inspector Morris inspected the premises on February 27, 2007, he suggested that she have the premises inspected for the presence of mold. She testified that she then called Mold Rover, Inc., which inspected the premises. She testified that the Mold Inspector gave her a verbal report on March 18, 2007, in which he informed her that, in his opinion, it was not safe for her child to stay in the apartment and that, personally, he would not go back into the apartment without respiratory equipment. She testified that she and Mr. Taylor vacated the premises on March 19, 2007 and went to her mother’s house. She testified that the defendants have not lived at the premises since March 19, 2007. The Court credits this testimony.

Ms. Beaulieu testified that, at the inception of the defendants’ tenancy, all of the windows were drafty, and that the blinds would “swing out and slap around”. She testified that five of the windows in the premises are approximately four feet wide by ten to fifteen feet high, and that the ceilings are twenty feet high. She testified that, on an unspecified day in December 2006, these windows blew in, that one window actually hit the ceiling, and that a three or four inch opening remains that lets air into

the premises. She testified that she called Mr. Mendonca on the night that the windows blew in, and a few days later, the plaintiff repaired two of the windows, but the other three remain drafty. She testified that Mr. Mendonca provided plastic and tape to seal the other windows, but the maintenance person told her that she was afraid of heights, and did not seal the remaining windows. The Court credits this testimony.

John Morris, Inspector for the Fall River Board of Health (“Board of Health”), testified that Ms. Beaulieu called the Board of Health on February 23, 2007, and that he inspected the premises on February 27, 2007. The Court credits this testimony, and finds that Mr. Morris found the following conditions: “1. Rugs in hallways need cleaing (sic); 2. Front & rear doors don’t lock properly. Lock broken. Also side door on west side of building; 3. Ceiling in front apartment ready to fall down-emergency exit stairway. Ceilings and walls have holes. Stained from leaks; 4. Roof to building to be repaired; 5. Ceilings in apartment stained from leaks. Also rug in apartment hallway stained; 6. Thermostat not working properly in in (sic) apartment; 7. Windows in apartment loose. Tenant claims windows blow in on heavy windy days; 8. Heating system to be serviced. Odors and dust coming from vents; 9. Fire extinguisher missing in hallway 2nd floor; 10. Heating systems in hallways falling apart. Needs cleaning & repairing; 11. Glass to rear security door broken; 12. Exit signs in hallway not working correctly; 13. Seven (7) outlets in apartment not working properly.”

Mr. Morris testified that he re-inspected the premises on April 5, 2007, and saw that there was mold where the washer-dryer was located. He testified that, during this re-inspection, he found that Violations No. 1 and Nos. 3-12 on the February 27, 2007 Report had been repaired, that Violation No. 2 had been “€ done – frt. entrance door, 1st fl. & side not finished,” and that, with respect to Violation No. 13, “6 outlets out of 7 corrected.” The Court credits this testimony, and finds that, on April 5, 2007, the Board of Health found the following additional conditions: “16. No carbon monoxide detector in apartment; 17. Evidence of mold in apartment due to severe condition of leaks into apartment & wall; 18. Light fixtures on walls throughout building falling down; 19. Broken glass above doorway 2nd floor hallway.”

Mr. Morris testified that he re-inspected the premises on May 10, 2007, and found that the roof was still leaking. He testified that he began criminal process against the plaintiff, and that the criminal case was on-going as of September 26, 2007 because the plaintiff has not completed repairs on the windows. The Court credits this testimony.

Mr. Mendonca testified that, at the inception of the defendants’ tenancy, they gave him a list of repairs which were needed in the premises, and that the plaintiff made these repairs at an unspecified time during the defendants’ tenancy. The Court credits this testimony.

Mr. Mendonca testified that, on November 23, 2006, the defendants notified him that the ceiling in their hallway and bathroom was leaking, and that he arranged for the leak to be repaired “right away.” He testified that, after the defendants

notified him on February 14, 2007 that the ceiling had fallen, he called a roofer, and that Diversified Roofing Systems, Inc. patched the roof on February 15, 2007. He testified that he believed that this patching job solved the problem, and that, when the problem recurred, the roofer repaired the roof on March 5, 2007. He testified that this repair lasted for a while, and that, when the problem recurred, the plaintiff installed a new roof at some unspecified time. Mr. Mendonca testified that, at some unspecified time after March 19, 2007, he went into the premises, and opened up the hole in the ceiling to a square cut in order to hang sheetrock. He testified that the repairs to the ceiling were completed by April 5, 2007, and that, on April 13, 2007, he notified the tenants in the building that a new roof had been installed. The Court credits this testimony.

Mr. Mendonca testified that, in mid-December 2006, the defendants notified him that “a window or two was drafty.” He testified that he called the defendants and wanted to seal the windows. The Court credits this testimony.

Joseph Tomacelli testified that he is a Mold Inspector, whose company is Mold Rover, Inc. He testified that Ms. Beaulieu called him on March 8, 2007 and requested that he inspect the premises for mold. He testified that, on March 9, 2007 he performed a visual inspection, as well as air tests in the common hallway, in the defendants’ apartment and outside the building. He testified that, in the apartment, mold and yeast were present. He testified that, during his inspection, he observed Kilz on the walls, as well as the odor of Kilz in the premises, and observed the presence of buckets in the halls. He testified that Kilz will mask surface mold and temporarily kills mold. He testified that, if moisture is present, mold will grow in other areas of the apartment. He testified that, although the levels of mold and yeast appeared to be low, there are no national standards for mold, and that the effects of the presence of mold are different for each person. He testified that “mold is everywhere in nature and in every home, but is a problem only with moisture,” and that mold will become active within 48-72 hours of exposure to moisture. He testified that he found that Cladosporium was present in the child’s bedroom and in the front hall, and that were was none outside the apartment. He testified that his conclusion was that it was not healthy for the child to live in the premises, and that he gave the defendants a verbal report of his findings on March 18, 2007, including a recommendation that they vacate the premises, and provided a written report to the defendants’ counsel on May 1, 2007. He testified that he recommended that the defendants vacate the premises because they told him that the ceiling continued to leak and that the problem was getting worse. The Court credits this testimony.

Richard Charpentier testified that he is a Mold Investigator for South Shore Environmental Services, LLC, and that he inspected the premises on June 19, 2007, at the plaintiff’s request. He testified that he performed a visual inspection and took air samples, one inside the apartment and one outdoors. He testified that he did not observe any visible mold, that he observed that the ceiling had been repaired and that there was no evidence of a leak

or a stain. He testified that the American Industrial Hygiene Association’s Guidelines provide that, if the indoor levels of mold are equal to or less than the outdoor levels, the level of mold is within normal limits. He testified that he took air samples in the hallway/kitchen corner area of the apartment, and found traces of Alternaria, Ascospores, Basidiospores, Cladosporium, Myxomycetes/Perconia/Smuts, Polythrincium and Aspergillus. He testified that the levels were minimal, i.e., one spore of each type, except for two spores of Aspergillus. He testified that the mold level was 2360 outdoor and 1 inside the apartment. He testified that he concluded that the air quality in the apartment was not degraded. The Court credits this testimony.

The Court finds that there was no credible evidence at trial that the plaintiff did not repair the conditions which existed in the premises at the inception of the defendants’ tenancy, with the exception of the drafty windows and the defective electric outlets, and finds that there was no evidence at trial as to when the plaintiff repaired the remaining conditions which existed at the inception of the defendants’ tenancy. Accordingly, the Court is unable to compute damages based on the existence of these conditions, and finds that the defendants are not entitled to damages under G.L. c. 239, s.8A based on those conditions which existed at the inception of the defendants’ tenancy and which have been repaired.

The Court finds that the drafty windows and the defective electric outlets which existed at the inception of the defendants’ tenancy, as well as the leaking ceiling, the mold in the premises, the remaining conditions in the February 27, 2007 Board of Health Report and the conditions in the April 5, 2007 Board of Health Report are conditions which constitute material breaches of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). Accordingly, the Court finds that the defendants are entitled to damages under G.L. c. 239, s.8A based on these conditions.

2007, ten per cent (10%), calculated as follows: ($28.77/day[1] x 15% = $4.32 x 350 = $1,512.00) + ($28.77/day x 30% = $8.63 x 83 = $716.29) + ($28.77/day x 40% = $11.51 x 51 = $587.01) + ($28.77/day x 15% = $4.32 x 38 = $164.16) + ($28.77/day x 20% = $5.75 x 94 = $540.50) + ($28.77/day x 10% = $2.88 x 36 = $103.68) = $3,623.64.

The Court finds that the plaintiff’s failure to repair the ceiling leak for the 134 day period between November 23, 2006 and April 5, 2007, which caused mold to develop in the premises, constitutes a serious interference with the defendants’ quiet enjoyment of the premises. The defendants are not entitled to recover cumulative damages arising from the same facts under every theory of recovery, but they are entitled to recover damages under the theory which results in the largest award of damages. Wolfberg v. Hunter, 385 Mass. 390 (1982). The plaintiff’s breach of the implied warranty of habitability with respect to the ceiling leak and the mold and the plaintiff’s violation of G.L. c. 186, s.14 for breach of the implied warranty of habitability arise from the same facts and involve the same damages. An award of damages for breach of warranty for these conditions would be duplicative of the damages awarded for violation of G.L. c. 186, s.14. The Court will award damages for breach of the implied warranty of habitability under G.L. c. 186, s.14, since that provides the largest recovery to the defendants, and will adjust the award of damages for breach of the implied warranty of habitability by subtracting the sum of $1,843.80[2] from the total award of damages on that claim. This results in a net award of damages for breach of the implied warranty of habitability of $1,779.84. The Court finds that the defendants are entitled to statutory damages under G.L. c. 186, s.14 in the amount of $2,625.00, which represents three (3) months rent, plus reasonable attorney’s fees, based on this claim.

The Court finds that there was no credible evidence at trial that the premises was uninhabitable due to the presence of mold at any time during the defendants’ tenancy. Accordingly, the Court finds that the defendants are not entitled to damages under G.L. c. 186, s.14 based on this claim.

G.L. c. 186, s.18 provides, in pertinent part: “Any person or agent thereof who threatens to or takes reprisals against any tenant of residential premises for the tenant’s act of commencing, proceeding with, or obtaining relief in any judicial or administrative action the purpose of which action is to obtain damages under, or otherwise enforce, any federal, state or local law, regulation, by-law or ordinance, which has as its objective the regulation of residential premises; or…reporting to the board of health or, in the city of Boston, to the commissioner of housing inspection or to any other board having as its objective the regulation of residential premises; or reporting or complaining of such violation or a suspected violation in writing to the landlord or to the agent of the landlord…shall be liable for damages which shall not be less than one month’s rent or more than three months’ rent, or the actual damages sustained by the tenant, whichever is greater, and the costs of the suit, including a reasonable attorney’s fee. The receipt of any notice of termination of tenancy except for non-payment of rent or, of increase in rent or, of any substantial alteration in the terms of tenancy within six months after the tenant has…made such report or complaint…shall create a rebuttable presumption that such notice or other action is a reprisal against the tenant for engaging in such activities. Such presumption shall be rebutted only by clear and convincing evidence[3] that such person’s action was not a reprisal against the tenant and that such person 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 tenant engaging in, or the belief that tenants had engaged in, activities protected under this section.”

The Court finds that, on March 7, 2007, the plaintiff served the defendants with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent. Mr. Mendonca testified that it is his custom and practice to send out late rent notices to tenants on the sixth day of the month. He testified that he sent the defendants a late notice in December 2006, and in January 2007. He testified that he told Mr. Talbot that he would have to evict the defendants if they could not get current in their rent. He testified that the defendants paid $1,500.00 cash in late January 2007 or early February 2007, which he applied to the rent for December 2006 and part of January 2007. He testified that the defendants did not pay any rent for February 2007, or in March 2007. He testified that he told Mr. Talbot one or two more times in March 2007 that, if the defendants could not get current with their rent, he would have to begin eviction proceedings. He testified that, when the defendants did not pay any rent for March 2007, he notified the plaintiff’s attorney to serve them with a 14 Day Notice To Quit. Ms. Beaulieu testified that, in January 2007, she heard Mr. Talbot tell Mr. Mendonca when he called asking about the rent that he wanted the repairs made and would pay the rent once they were made. Mr. Mendonca testified that, when Mr. Talbot paid $1,500.00 in February 2007, he did not say that he was withholding rent. The Court credits Ms. Beaulieu’s testimony on this issue.

The Court finds that the defendants are not entitled to the statutory presumption of retaliation, since the March 7, 2007

Notice To Quit was for non-payment of rent. The Court finds, on the facts of this case, that the defendants have established by a preponderance of the evidence that the plaintiff retaliated against them. The Court finds that the defendants notified the plaintiff that they were withholding their rent until the plaintiff made repairs, and finds that the plaintiff served the defendants with the 14 Day Notice To Quit which forms the basis for this action ten (10) days after the Board of Health inspected the premises at the defendants’ request. The Court finds that it is a reasonable inference that the plaintiff decided to terminate the defendants’ tenancy because they called the Board of Health after the plaintiff had failed to make the repairs the defendants had requested. The Court finds, on the facts of this case, that the plaintiff did not have sufficient independent justification for serving the March 7, 2007 Notice To Quit, and finds that he took this action in reprisal for the defendants’ actions in calling the Fall River Board of Health in February 2007. Accordingly, the Court finds that the defendants are entitled to damages under G.L. c. 186, s.18 in the amount of $2,625.00, which represents three (3) months’ rent, plus reasonable attorney’s fees.

In their written answer and counterclaims, the defendants contend that they are entitled to damages under G.L. c. 186, s.19 because their furniture[4] and clothing were damaged.

G.L. c. 186, s.19 provides, in pertinent part: “A landlord or lessor of any real estate except an owner-occupied two or three-family dwelling shall, within a reasonable time following receipt of a written notice from a tenant forwarded by registered or certified mail of an unsafe condition, not caused by the tenant, his invitee, or any one occupying through or under the tenant, exercise reasonable care to correct the unsafe condition described in said notice except that such notice need not be given for unsafe conditions in that portion of the premises not under control of the tenant. The tenant or any person rightfully on said premises injured as a result of the failure to correct said unsafe condition within a reasonable time shall have a right of action in tort against the landlord or lessor for damages. Any waiver of this provision in any lease or other rental agreement shall be void and unenforceable. The notice requirement of this section shall be satisfied by a notice from a board of health or other code enforcement agency to a landlord or lessor of residential premises not exempted by the provisions of this section of a violation of the state sanitary code or other applicable by laws, ordinances, rules or regulations.”

Ms. Beaulieu testified that, after the ceiling fell on February 14, 2007, their clothes smelled bad, especially those in the hallway closet. She testified that Mr. Talbot’s suits and their jackets were in the hallway closet, and that their cleaning bills came to approximately $500.00. The Court credit this testimony, and finds that the defendants are entitled to recover damages under G.L. c. 186, s.19 in the amount of $500.00.

In their written answer and counterclaims, the defendants contend that the plaintiff has violated G.L. c. 93A, and the regulations promulgated thereunder.

The Attorney General, acting pursuant to statutory authority,

has promulgated regulations, 940 CMR 3.17 et seq., that identify conduct on the part of an owner of residential property that is deemed to be an unfair or deceptive act or practice. 940 CMR 3.17(1) provides, in pertinent part: “It shall be an unfair or deceptive act or practice for an owner to: (a) Rent a dwelling unit which, at the inception of the tenancy 1. Contains a condition which amounts to a violation of law which may endanger or materially impair the health, safety, or well-being of the occupant; or 2. Is unfit for human habitation;…(e) Fail within a reasonable time after receipt of notice from the tenant to make repairs in accordance with a pre-existing representation made to the tenant;…(1) fail to comply with the State Sanitary Code or any other law applicable to the conditions of a dwelling unit within a reasonable time after notice of a violation of such code or law from the tenant or agency.” 940 CMR 3.17(6) provides, in pertinent part: “It shall be an unfair and deceptive practice for an owner to:…(b) Retaliate or threaten to retaliate in any manner against a tenant for exercising or attempting to exercise any legal rights as set forth in M.G.L. c. 186, s.18;…(f) To (sic) violate willfully any provisions of M.G.L. c. 186, s.14.”

The Court finds that the plaintiff’s breaches of the implied warranty of habitability constitute violations of G.L. c. 93A. A landlord violates G.L. c. 93A when the Court finds that the breach of the implied warranty of habitability is material and substantial. Cruz Management Co., Inc. v. Thomas, 417 Mass. 782 (1994); Dorgan v. Loukas, 19 Mass.App.Ct. 959 (1985). The Court further finds that these violations of G.L. c. 93A were not willful or knowing. Accordingly, the Court finds that the defendants are not entitled to an award of double damages under G.L. c. 93A, s.9 for these violations, and will award statutory damages in the amount of $25.00, plus reasonable attorney’s fees, based on this claim.

The Court finds that the plaintiff’s violation of G.L. c. 186, s.18 was willful and knowing, and further finds that the defendants are entitled to double damages based on this violation. The defendants are not entitled to recover cumulative damages arising from the same facts under every theory of recovery, but they are entitled to recover damages under the theory which results in the largest award of damages. Wolfberg v. Hunter, 385 Mass. 390 (1982). The defendants’ claim under G.L. c. 186, s.18 for retaliation, and this claim under G.L. c. 93A arise from the same sets of facts and involve the same damages. The Court will award damages for the plaintiff’s violation of G.L. c. 186, s.18 under that statute rather than under G.L. c. 93A, since that provides the defendants with the largest recovery, and will award the defendants statutory damages of $25.00, plus reasonable attorney’s fees under G.L. c. 93A.

In their written answer and counterclaims, the defendants contend that the plaintiff’s actions constitute intentional infliction of emotional distress.

Ms. Beaulieu testified that, during her tenancy, she was exhausted, had allergies, and had sniffling and congestion, which got better after she left the premises. The Court credits this testimony.

The Court finds that there is no credible evidence that the plaintiff, or any of his agents, engaged in any conduct which was “extreme and outrageous,” finds that there is no credible evidence that any emotional distress sustained by Ms. Beaulieu was severe, and finds that there is no credible evidence that the actions of the plaintiff or any of his agents were the cause of any emotional distress Ms. Beaulieu may have sustained. Accordingly, the Court finds that Ms. Beaulieu is not entitled to an award of damages based on this claim.

The Court finds that the defendants have prevailed on their counterclaims for interference with quiet enjoyment and retaliation, and were awarded reasonable attorney’s fees under G.L. c. 186, s.14, G.L. c. 186, s.18 and G.L. c. 93A. In evaluating a request for an award of attorneys 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, 379 Mass. 381, 388-9 (1979). See Heller v. Silverbranch Construction Corp., 376 Mass. 621, 629 (1978). (“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”). However, the actual amount of the attorney’s fee is largely discretionary with the trial judge. Linthicum, supra at 388.

The Court has reviewed the Affidavit submitted by Attorney John P. Callaghan, the defendants’ trial counsel in this action. The Court had the opportunity to observe Mr. Callaghan during the trial of this action. While the legal issues were not complex, there were significant factual disputes. Mr. Callaghan represented his clients skillfully, and his clients recovered a judgment on their counterclaims for interference with quiet enjoyment and retaliation, and were awarded reasonable attorney’s fees under G.L. c. 186, s.14, G.L. c. 186, s.18 and G.L. c. 93A. The Court considers Mr. Callaghan’s hourly rate of $175.00 to be fair and reasonable given his experience. His rate is within the range of hourly rates charged by attorneys of similar experience in the Fall River area. After reviewing Mr. Callaghan’s Affidavit, the Court finds that 4.75 hours were reasonably attributable to the

counterclaims for breach of the implied warranty of habitability, interference with quiet enjoyment and retaliation, and represented time for which Mr. Callaghan is entitled to compensation, in the amount of $831.25. The Court also finds that the expenses incurred by counsel in the amount of $50.00 are reasonable, and represent expenses for which Mr. Callaghan is entitled to reimbursement. Accordingly, the Court awards Mr. Callaghan reasonable attorney’s fees in the amount of $831.25, plus expenses in the amount of $50.00, a total of $881.25, to be paid by the plaintiff.

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 enter for the plaintiff for damages for unpaid rent in the amount of $6,375.00, plus costs in the amount of $175.00, a total of $6,550.00.

2. Judgment enter for the defendants on their counterclaim for breach of the implied warranty of habitability in the amount of $1,779.84.

3. Judgment enter for the defendants on their counterclaim under G.L. c. 186, s.14 in the amount of $2,625.00, plus reasonable attorney’s fees.

4. Judgment enter for the defendants on their counterclaim under G.L. c. 186, s.18 in the amount of $2,625.00, plus reasonable attorney’s fees.

5. Judgment enter for the defendants on their counterclaim under G.L. c. 186, s.19 in the amount of $500.00.

6. Judgment enter for the defendants on their counterclaim under G.L. c. 93A in the amount of $50.00, plus reasonable attorney’s fees.

7. Judgment enter for the plaintiff on the defendants’ remaining counterclaims.

8. The foregoing order for judgment paragraphs 1 through 7 result in a net judgment for the defendants for damages in the amount of $1,029.84, plus reasonable attorney’s fees.

9. Execution issue ten (10) days after the date that judgment enters.

10. The plaintiff shall pay attorney’s fees and expenses in the amount of $881.25 to defendants’ counsel no later than thirty (30) days after the date that judgment enters.

————————-

[1] The per diem rental amount is calculated as follows: $875.00 x 12 = $10,500.00 ? 365 = $28.77.

[2] This amount is calculated by excluding from recovery for breach of the implied warranty of habitability the rent abatements of $716.29 and $587.01 for the leaking ceiling and $540.50 for the mold in the premises.

[4] At trial, the defendants, through counsel, withdrew their claim for damage to their furniture.

End Of Decision

HOUSING COURT

John Downing, Trustee, Mill River Realty Trust v. Sean Furtado

BRISTOL, SS

PLYMOUTH, SS

Docket # Docket No. 07-SP-07370

Parties: John Downing, Trustee, Mill River Realty Trust v. Sean Furtado

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: January 9, 2008

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

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

The defendant, Sean Furtado, has resided at 17 Winthrop Street, Taunton, MA as a tenant at will since October 24, 2007. The plaintiff, John Downing, Trustee, Mill River Realty Trust, is the owner of the premises and is the defendant’s landlord. The rent for the premises is $550.00 per month and is due on the third day of each month. The defendant has failed to pay the plaintiff any rent for the months of November 2007 and December 2007, owes a balance of $50.00 for the month of October 2007,and currently owes the plaintiff a total of $1,150.00 in unpaid rent.

The Court finds that, on November 2, 2007, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Vacate for Non-Payment of Rent-Tenant At Will.

The defendant filed a written answer and counterclaims based on breach of the implied warranty of habitability.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant testified that, on November 2, 2007, he offered the plaintiff’s son, Matthew Downing, $400.00 toward the rent for November 2007, and that Matthew Downing refused to accept it. He testified that he rented the premises in a furnished condition, and that, two weeks after the inception of his tenancy, he told Matthew Downing that there were cockroaches in the refrigerator, the microwave, and the shower area.. He testified that he informed

Matthew Downing that he would pay the balance of the rent for November 2007 after the cockroaches were gone.

The defendant testified that, a month before he moved into the premises, the prior tenant had died in the premises. He testified that he asked the plaintiff to replace the mattress on the bed, and he refused to do so. He testified that he put the mattress on the back porch, and slept on the couch for a week and a half. He testified that he then developed scabies, which he believes he contracted from the couch, and that he threw away the couch.

The defendant testified that, on November 26, 2007, he contacted the City of Taunton Board of Health (“Board of Health”) and made a complaint about the infestation of insects and rodents in the premises. He testified that Adam Vickstrom of the Board of Health informed him that the plaintiff would be cited for infestation.

The defendant testified that the thermostat in the premises has been broken since the inception of his tenancy, and that he has had no heat for three or four days. He testified that he went to complain about the problem with the heat, and that Matthew Downing told him that the heat was on. He testified that he called the police and, with his mother, he confronted Matthew Downing, and that the heaters were cold. He testified that the plaintiff replaced the thermostat, but it was still cold. He testified that he then got portable heaters, and came home one day and they were gone. He testified that the door was locked and there were no signs of a break-in.

The plaintiff John Downing testified that he has a contract with Guardian Pest Control to exterminate the building in which the premises is located twice a year, and that, on October 18, 2007, Guardian Pest Control exterminated the building. He testified that, on the day on which the previous tenant died, he took the mattress out of the apartment. He testified that, on November 2, 2007, the defendant told him that the plaintiff wanted “too much money for this sh*t house and I won’t pay it.” He testified that the defendant then said, “I’ll see you in court.”

The plaintiff testified that, on or about December 14, 2007, he received a Report from the Board of Health. The Court finds that the Board of Health made the following determinations: “Infestation: Upon entering the unit no visable (sic) cockroach activity was observed. However a retail cockroach trap was observed on the floor. Action: Spoke with John Downing (owner). He informed me of protective measures are and were in place (sic) before the tenant took tenancy. Recipts (sic) are submitted to office annually. NO VIOLATIONS NOTED. Heat: The heating system was not in proper working order. Action: Spoke with John (owner). He informed me the boiler was being serviced. The heat was restored and a new thermostat was installed. NO VIOLATIONS NOTED.”

The plaintiff testified that the only time that the heat has been turned off during the defendant’s tenancy was the one day on which the boiler was being serviced, and that the outside temperature was 65? on that day. He testified that all three units

in the building in which the premises is located are served by the same boiler, and that it is impossible to shut off the heat to one particular unit. He testified that, when he checked the thermostat in the premises, it was working and was set at 88?. He testified that he believes that the defendant smashed the thermostat to break it, and that, on November 4, 2007, the thermostat was replaced. He testified that he did not enter the premises and remove the defendant’s portable heater, but that the City of Taunton Fire Department has a key to the units, and could have removed the heaters if they performed an inspection and found the portable heaters there.

Matthew Downing testified that, on November 2, 2007, he told the defendant that he owed the plaintiff a total of $650.00 in unpaid rent. He testified that the defendant told him that he had $400.00, but that he could not afford to give him all of that, and that the plaintiff wanted “too much for this sh*thouse, and I won’t pay it.” He testified that, as the property manager, he decided to contact the constable to have the defendant served with a 14 Day Notice To Quit.

Matthew Downing testified that, at the inception of the defendant’s tenancy, the thermostat was in working order.

Jean Furtado, the defendant’s mother, testified that, on November 2, 2007, she heard the defendant talking with Matthew Downing about “flexibility” in his rental payments, and saw that he had $400.00 in cash which he attempted to hand to Matthew Downing, but that he refused to take it.

The Court credits the testimony of the plaintiff and Matthew Downing on these issues.

The Court finds that there was no credible evidence at trial that there was a cockroach infestation in the premises at any time during the defendant’s tenancy. Accordingly, the Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this condition.

The Court finds that there was no credible evidence at trial that the plaintiff knew or should have known about the defendant’s scabies at any time during his tenancy. The Court also finds that there was no credible evidence at trial that the couch in the premises caused the development of the defendant’s scabies. Accordingly, the Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this condition.

The Court finds that there was no credible evidence at trial that there was no heat in the premises at any time during the defendant’s tenancy, with the exception of the one day on which the boiler was being serviced. Accordingly, the Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this condition.

The Court finds that there was no evidence at trial that the defendant ever tendered the full amount of rent that he owed to the plaintiff. Accordingly, the Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this claim.

The Court finds that the plaintiff has established its case

for possession of the premises and damages for unpaid rent in the amount of $1,150.00, plus costs.

ORDER FOR JUDGMENT

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

1. Judgment enter for the plaintiff for possession of the premises and damages for unpaid rent in the amount of $1,150.00, plus costs.

2. Judgment enter for the plaintiff on the defendant’s counterclaims.

3. Execution issue ten (10) days after the date that judgment enters.

cc: John Downing, Trustee

Mill River Realty Trust

Sean Furtado

Docket No. 07-SP-07370

John Downing, Trustee

Mill River Realty Trust

Plaintiff

vs.

Sean Furtado

Defendant

JUDGMENT

Judgment for the Plaintiff for possession, unpaid rent of $1,150.00, plus costs.

Judgment for the Plaintiff as well, as to Defendant’s counterclaim issues.

Accordingly, judgment enters at 10:00 a.m. this 10th day of January 2008.

/s/MARK R. JEFFRIES

CLERK MAGISTRATE

Mailing List: Docket #07-SP-07370

John Downing

15 Winthrop Street

Taunton, MA 02780

Mill River Realty Trust

15 Winthrop Street

Taunton, MA 02780

Sean Furtado

17 Winthrop Street

Taunton, MA 02780

End Of Decision

HOUSING COURT

Manuel Pereira v. Stacy L. Norris

SOUTHEASTERN DIVISION

Docket # 08-SP-00024

Parties: Manuel Pereira v. Stacy L. Norris

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: January 29, 2008

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

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

The defendant, Stacy L. Norris, has resided at 621 Third Street, 2 North, Fall River, MA (“the premises”) as a tenant under a lease since May 1, 2007. The plaintiff, Manuel Pereira, is the owner of the premises and is the defendant’s landlord. The rent for the premises is $600.00 per month and is due on the first day of each month, no later than the third day of each month.

The plaintiff testified that the defendant had previously paid a last month’s rent in the amount of $600.00 and that, on November 2, 2007, when he went to the premises to collect rent, the defendant notified him that she would be vacating the premises in

thirty (30) days and told him to use her last month’s rent for November 2007. He testified that he did so, and that the defendant owed him a balance of $456.00 for the month of October 2007. He testified that the defendant did not vacate the premises, has also failed to pay him any rent for the months of December 2007 and January 2008, and currently owes him a total of $1,656.00 in unpaid rent. The defendant testified that she has not paid the plaintiff any rent for the months of November 2007 through January 2008, owes a balance of $456.00 for the month of October 2007, and currently owes the plaintiff a total of $2,256.00 in unpaid rent. The Court credits the plaintiff’s testimony on these issues, and finds that the defendant has failed to pay the plaintiff any rent for the months of December 2007 and January 2008, owes a balance of $456.00 for the month of October 2007, and currently owes the plaintiff a total of $1,656.00 in unpaid rent

The Court finds that, on December 10, 2007, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Quit for Rent.

The defendant filed a written answer and counterclaims based on defective conditions in the premises.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant testified that, at the inception of her tenancy on April 1, 2007, she noticed the presence of bedbugs. She testified that she notified the plaintiff of this condition in mid-April 2007, and that Terminex sprayed the premises on one (1) occasion, in October 2007, and that the premises is still infested with bedbugs. The plaintiff testified that the defendant did not notify him of the presence of bedbugs, but that he contacted Terminex because another tenant had notified him of the presence of bedbugs in the building in which the premises is located. He testified that he has a service contract with New England Pest Control to treat the premises under warranty for sixty (60) days, and that Terminex sprayed the premises on October 12, 2007. The Court credits the defendant’s testimony that the premises is still infested with bedbugs and credits the plaintiff’s testimony on the remaining issues.

The Court finds that the service contract with New England Pest Control is dated September 18, 2007, and notes as follows: “[W]arranty only covers Unit 2nd North/Problem only seen in 1 unit-unit 2nd north.”

The Court finds that the bedbug infestation is a condition

which constitutes a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). Id. The Court finds that the defendant is entitled to a defense to possession and to damages under G.L. c. 239, s.8A with respect to the bedbug infestation.

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 enter for the plaintiff for damages for unpaid rent in the amount of $1,656.00, plus costs in the amount of $180.00, a total of $1,836.00.

2. Judgment enter for the defendant on her counterclaim for breach of the implied warranty of habitability in the amount of $1,204.14.

3. The foregoing orders for judgment paragraphs 1 and 2 result in a net judgment for damages for the plaintiff in the amount of $631.86.

4. Judgment enter for the defendant for possession pursuant to the fifth paragraph of G.L. c. 239, s.8A, on the condition that within seven (7) days of her receipt of this ORDER, the defendant deposit with the Clerk of this Court, the sum of $451.86, payable to the plaintiff, plus costs in the amount of $180.00, a total of $631.86. If this deposit is made, the Clerk shall immediately release all funds held by the Court to the plaintiff. If the deposit is not made, judgment shall automatically enter in favor of the plaintiff for possession and damages in the amount of $451.86, plus costs in the amount of $180.00, a total of $631.86, on the next business day following the expiration of the tenth (10th) day from the date of this Order.

————————-

[1] The per diem rental amount is calculated as follows:$600.00 x 12 = $7,200.00 ? 365 = $19.73.

End Of Decision

HOUSING COURT

Lorraine Vernazza and Karen Vernazza v. Mark Canales and Jennifer Dumont

SOUTHEASTERN DIVISION

Docket # 07-SP-07761

Parties: Lorraine Vernazza and Karen Vernazza v. Mark Canales and Jennifer Dumont

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: January 18, 2008

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

This is a summary process action in which the plaintiffs seek to recover possession of the premises from the defendants and damages for unpaid rent.

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

The defendants, Mark Canales and Jennifer Dumont, have resided at 16 Faith St., 2nd floor, Taunton, MA (“the premises”) as tenants at will since September 27, 2007. The plaintiffs, Lorraine Vernazza and Karen Vernazza, are the owners of the premises and are the defendants’ landlords.

The plaintiffs’ property manager, Stanley Lawson, testified that the rent for the premises is $1,000.00 per month and is due on the first day of each month beginning October 1, 2007. He testified that the defendants paid the plaintiffs $400.00 toward the October 2007 rent on the day they moved into the premises, $100.00 on October 5, 2007, $200.00 on October 26, 2007, and have made no further rental payments to the plaintiffs. The defendant Jennifer Dumont testified that the rent for the premises is $800.00 per month and is due in installments of $200.00 on the first four (4) Fridays of each month. The Court credits the testimony of the plaintiffs’ property manager on these issues. The Court finds that the rent for the premises is $1,000.00 per month and is due on the first day of each month. The Court finds that the defendants have failed to pay the plaintiffs any rent for the months of November 2007 through January 2008, owe a balance of $300.00 for the month of October 2007, and currently owe the plaintiffs a total of $3,300.00 in unpaid rent.

The Court finds that, on November 27, 2007, the plaintiffs served the defendants with a legally sufficient 14 Day Notice To Vacate for Non-Payment of Rent-Tenant at Will.

At trial, the defendant Jennifer Dumont testified that the defendants stopped paying rent to the plaintiffs because the heat was shut off.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the

condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant Jennifer Dumont testified that the plaintiffs shut off the hot water and the electricity “randomly” at unspecified times during the defendants’ tenancy. She testified that she informed Mr. Lawson in mid-November 2007 that there was no heat in the premises and that she contacted the City of Taunton Board of Health (“Board of Health”) when there was still no heat two (2) weeks later. She also testified that the defendants used the oven for heat because the fuses would blow when the defendants used space heaters, and that every window in the premises is broken. The defendant Mark Canales testified that Mr. Lawson told the defendants that the windows would be repaired by October 1, 2007, but they were never repaired.

The Court finds that, on December 3, 2007, the Board of Health inspected the premises and found the following conditions: “1. Tenant states landlord is continuously shutting off hot water to dwelling unit…Order: You are required to restore hot water to dwelling unit. Landlord may not shut off utilities to dwelling unit… 2. No heat throughout apartment…Order: Repair or replace heating facilities to ensure the system is in proper working order…3. Carbon monoxide detectors not present throughout dwelling unit…Order: Properly install carbon monoxide alarms throughout unit in compliance with 527 CMR…4. (a) Protective handrail located in the stairway between the first and second floor not present. (b) Protective handrail located in the front exterior common area in disrepair. Handrail is secured with tape…Order: Properly repair or replace protective handrail in both areas to a condition that is deemed acceptable for the use intended…5. (a) Large hole present in side bedroom, under window area. No window trim is present. (b) Windows in disrepair throughout unit. Windows located in the living room, master bedroom, and side bedroom have cracked glass. Windows located in the bathroom and sons bedroom are not weather tight. The seal around the window is not sufficient to stop drafts. No glass present in front door to front common area…Order: (a) Replace window trim in the side bedroom area. (B) Repair or replace windows that are in disrepair throughout unit.” The Court finds that the Board of Health posted its Report at the premises on December 4, 2007, and hand-delivered its Report to the plaintiffs on December 4, 2007.

Mr. Lawson testified that, when the plaintiff Karen Vernazza “hit” the circuit breaker on the hot water heater, it came back on.

The Court credits Mr. Lawson’s testimony with respect to the hot water heater, and credits the defendants’ testimony on the remaining issues of the conditions in the premises.

The Court finds that there was no credible evidence at trial that the plaintiffs “randomly” shut off the hot water and electricity in the premises at any time during the defendants’ tenancy. Accordingly, the Court finds that the defendants are not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this condition.

The Court finds that the lack of heat in the premises from mid-November 2007 through January 8, 2007 , as well as the

remaining conditions listed in the December 4, 2007 Board of Health Report, are conditions which constitute material breaches of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973).

The Court finds that the defendants are not entitled to a defense to possession under G.L. c. 239, s.8A for the lack of heat in the premises since mid-November 2007, since they were already in arrears in their rent at the time this condition arose. The Court finds that the defendants are entitled to damages under G.L. c. 239, s.8A based on this condition.

The Court finds that the defendants are entitled to a defense to possession and to damages under G.L. c. 239, s.8A based on the conditions in the premises which existed at the inception of the defendants’ tenancy, i.e., the lack of carbon monoxide detectors, the defective handrails, the hole under the bedroom window and the defective windows.

G.L. c. 186, s.14 provides, in pertinent part: “Any lessor or landlord of any building or part thereof occupied for dwelling purposes… who is required by law…to furnish…heat…to any occupant of such building or part thereof, who willfully or intentionally fails to furnish such…heat…at any time when the same is necessary to the proper or customary use of such building or part thereof,…or who directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant…shall…be liable for actual and consequential damages, or three month’s rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee, all of which may be applied in setoff to or in recoupment against any claim for rent owed or owing…”

premises. (citations omitted).” Doe v. New Bedford Housing Authority, supra at 285. The Court finds that the lack of heat in the premises for the 55 day period between November 15, 2007 and January 8, 2008 constitutes a serious interference with the defendants’ quiet enjoyment of the premises. Accordingly, the Court finds that the defendants are entitled to damages under G.L. c. 186, s.14 in the amount of $3,000.00, which represents three (3) months rent, based on this claim.

The defendants are not entitled to recover cumulative damages arising from the same facts under every theory of recovery, but they are entitled to recover damages under the theory which results in the largest award of damages. Wolfberg v. Hunter, 385 Mass. 390 (1982). The defendants’ breach of the implied warranty of habitability claim with respect to the lack of heat in the premises and their interference with quiet enjoyment claim arise from the same set of facts and involve the same damages. The Court will award damages for this condition under G.L. c. 186, s.14 since that provides the defendants with the largest recovery, and will adjust the award of damages for breach of the implied warranty of habitability by subtracting the sum of $1,808.40[2] from the total award of damages on that claim. This results in a net award of damages for breach of the implied warranty of habitability of $1,367.60.

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 enter for the plaintiffs for damages for unpaid rent in the amount of $3,300.00, plus costs in the amount of $184.91, a total of $3,484.91.

2. Judgment enter for the defendants on their counterclaim for breach of the implied warranty of habitability in the amount of $1,367.60.

3. The foregoing orders for judgment paragraphs 1 and 2 result in a net judgment for damages for the plaintiffs as to those claims in the amount of $2,117.31.

4. Judgment enter for the defendants for possession pursuant to the fifth paragraph of G.L. c. 239, s.8A, on the condition that within seven (7) days of their receipt of this ORDER, the defendants deposit with the Clerk of this Court, the sum of $1,932.40, payable to the plaintiffs, plus costs in the amount of $184.91, a total of $2,117.31. If this deposit is made, the Clerk shall immediately release all funds held by the Court to the plaintiffs. If the deposit is not made, judgment shall automatically enter in favor of the plaintiffs for possession and damages in the amount of $1,932.40, plus costs in the amount of $184.91, a total of $2,117.31, on the next business day following the expiration of the tenth (10th) day from the date of this Order.

5. Judgment enter for the defendants on their counterclaim under G.L. c. 186, s.14 in the amount of $3,000.00.

6. Execution issue ten (10) days after the date that judgment enters.

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[1] The per diem rental amount is calculated as follows: $1,000.00 x 12 = $12,000.00 ? 365 = $32.88.

[2] This adjustment is calculated from excluding from recovery under G.L. c. 239, s.8A the rent abatement of $1,808.40 for the lack of heat in the premises for the 55 day period between November 15, 2007 and January 8, 2008.

End Of Decision

HOUSING COURT

Jennifer Weiss-Cohen, beneficial owner of WHJ Realty, LLC v. David and Donna Dininno

SOUTHEASTERN DIVISION

Docket # 07-SP-01394

Parties: Jennifer Weiss-Cohen, beneficial owner of WHJ Realty, LLC v. David and Donna Dininno

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: January 7, 2008

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

This is a summary process action in which the plaintiff seeks to recover possession of the premises from the defendants and damages for unpaid use and occupancy. The defendants filed a written answer 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 defendants, David and Donna Dininno, have resided at 5 Candice Lane, Berkley, MA since September 30, 2006. The plaintiff, Jennifer Weiss-Cohen, beneficial owner of WHJ Realty, LLC, is the owner of the premises.

The Court finds that, on September 30, 2006, the parties executed a Contingent Non-Vested Member Interest Purchase and Sale Agreement (“Agreement”), pursuant to which the defendants agreed to purchase the premises and the plaintiff agreed to sell the premises to them. The Court finds that, at all times relevant to this action, the defendants have occupied the premises pursuant to the terms of the Agreement.

The Court finds that Paragraph 2. of the Agreement provides, in pertinent part: “2.1.(a) The aggregate purchase price for the Member Interests[1] shall be $330,000.00…(the “Purchase Price”), which shall be paid as follows: Purchaser shall pay $5,000.00 as the deposit and down payment (the “Down Payment”), $3,100.00 of which shall be paid on September 30, 2006, (the “Initial Closing Date”)…and $1,900.00 of which shall be paid not later than the 21st of October, 2006 and shall deliver its promissory note (the “Promissory Note”, and together with the Down Payment, the “Consideration”), in substantially the form of Exhibit A attached hereto, in the original principal amount equal to $326,000.00 (Three Hundred Twenty Five Thousand Dollars), which such amount shall be appropriately reduced to reflect the portion of the Down Payment required to be paid not later than October 21, 2006.

“(b) The principal balance of the Promissory Note shall bear interest at the rate of 7% (seven percent) per annum, payable weekly, together with that portion of the homeowners insurance, flood insurance, real property taxes and such other amounts as may be assessed against or with respect to the ownership of the Property (collectively the “Carrying Charges”) accruing to date, the initial amounts of which are set forth in Section 3.2 below and shall be set forth in the Promissory Note, with the principal balance due and payable 12 (twelve) months from the Closing Date. The Promissory Note shall be secured by the Purchaser’s contingent, non-vested interest in the Member Interests (which shall not be deemed to cause such contingent non-vested interest to be treated as a present interest in such Member Interests for any purpose

whatsoever). Failure to pay interest and Carrying Charges on any date due shall be deemed a default (“Default”). In the event of Default, the Member Interests shall be immediately retransferred to the Seller by operation of law and with no further action required, Purchaser shall immediately lose the right to occupy the Property with no further action required, and interest shall accrue at the rate of 14% per annum on the full amount due hereunder until all such amounts are paid (or such higher rate as may be permitted under state law), provided that Purchaser shall have the right to cure a Default by payment of the aggregate amount due within 5 (five) days of the date the payment giving rise to the Default was due, or such other date as permitted by the Seller in its sole discretion, provided that Seller shall not be deemed to have agreed to any such other date by any action or inaction other than its written consent setting forth such other date.

“(c) Upon receipt of the Down Payment and Promissory Note the following shall occur: Seller shall grant a Second Mortgage to itself, secured by the Property, in the initial principal amount equal to the difference between the Promissory Note and the First Mortgage, which shall be subject to terms such that the sum of the amounts due under the First and Second Mortgages as of any date equal the amount due under the Promissory Note as of such date, Seller shall amend the Certificate of Formation of the LLC to appoint itself as the Administrative Manager of the LLC, Purchaser shall have the right to occupy the Property as of the Initial Closing Date subject to the conditions set forth in clause (b) above, and Seller agrees to a conditional, non-vested transfer of 99.01% of the Member Interests to the Purchaser subject to the conditions set forth herein, including, without limitation that Purchaser shall timely make all payments due hereunder and under the Promissory Note, and Purchaser shall pledge such contingent and non-vested interest in the Member Interests to the Seller as security for the performance of Purchaser’s obligations under the Promissory Note (the “Contingent Member Interests”).

“(d) Provided that Purchaser timely makes each such payment in the amount and on the date due as required herein during the twelve month period following the Initial Closing,…the following shall occur: the Contingent Member Interests shall vest and be deemed transferred to the Purchaser with no further action required, Seller be deemed to contribute the outstanding balance due under the Second Mortgage and the Second Mortgage shall be deemed paid and discharged, and Seller shall convey the remaining .01% (sic) Member Interest in the LLC to the Purchaser, and the Certificate of Organization of the LLC shall be amended to reflect withdrawal of the Seller as the Administrative Manager and the appointment of an Administrative Manager as designated by the Purchaser (the “Final Closing”).”

The Court finds that Paragraph 4.3 of the Agreement provides: “Purchaser acknowledges that if Purchaser shall fail to fulfill its obligations as set forth herein, all deposits and other payments made hereunder…by the Purchaser shall be retained by the Seller as liquidated damages…”

The Court finds that Paragraph 7 of the Agreement provides, in pertinent part: “7. Termination. 7.1 General. This Agreement may

be terminated and the transactions contemplated hereunder by may be abandoned…(c) by Seller at any time if the provisions of Section 2.1(a) have not been fully complied with.”

The defendant Donna Dininno testified that she saw an advertisement in the November 5, 2005 edition of The Brockton Enterprise that there was an open house at the premises the next day, and that she attended the open house. She testified that, at the open house, she spoke to the plaintiff’s real estate agent, a Mr. Ruffo, and told him she was looking for a property. She testified that, based on the November 5, 2005 newspaper ad, she understood that seller financing was available, and that the seller was willing to work with a buyer who had credit problems. She testified that, following the open house, she provided Mr. Ruffo with the financial information he requested, and that he then provided this financial information to the plaintiff. She testified that the parties signed a Purchase and Sale Agreement for the premises in November 2005, with a closing date in March 2006. She testified that, after the March 2006 closing fell through, she stayed in touch with Mr. Ruffo “working on our credit,” and that Mr. Ruffo called her in August 2006 to ask if she was still interested in the premises.

The defendant David Dininno testified that he also saw the November 5, 2005 newspaper ad and went with his wife to see Mr. Ruffo. He testified that Mr. Ruffo gave the defendants financial statements to complete, “told us the house was ours, and we gave him a $12,000.00 deposit”. He testified that the parties entered into a Purchase and Sale Agreement on November 25, 2005, but that the closing never took place, and that their deposit was eventually returned. He testified that the closing did not take place in March 2006 because Mr. Ruffo informed him that the plaintiff needed an additional three months to evict a person named “Mark” from the premises. He testified that Mr. Ruffo called the defendants several months later and told them the premises was available, that they did a walk-through at that time, and that they decided “to go for it.”

Joseph Ruffo, of Prudential Linn-Ruffo Real Estate, testified that he is a real estate agent. He testified that, after the defendants attended an open house at the premises in November 2005, he never wrote up an offer for them to purchase the premises because of the defendants’ past and existing credit issues. He testified that he informed the defendants that they had to build their credit up over a period of six months to one year before they would be able to get a mortgage. He testified that he informed the defendants that they needed a credit rating of 605 to 620 to qualify for a mortgage and that their credit rating was in the mid-500’s. He testified that he informed the defendants that they needed three fresh trails of credit, e.g., a secured credit card.

The plaintiff testified that, at some unspecified time, she purchased the premises from one Mark Roach, who continued to occupy the premises for an unspecified period of time after she purchased it. She testified that the defendants could not obtain conventional financing to purchase the premises in 2006 and that, based on the financial documents she saw at that time, she decided that she was not willing to take the risk of providing seller

financing with them, but that she was willing to enter into a “rent-to-own” Agreement. She testified that she drafted the Agreement, that she signed a counterpart of the Agreement, as provided in Paragraph 11, and that she believes that it is a “typical rent-to-own contract.”

Mr. Ruffo testified that, in 2006, the defendants met with him several times prior to the September 30, 2006 closing, that he explained to them that they did not have enough credit to get a mortgage, and that he believes the defendants understood that they had credit issues to clean up before they would qualify for a mortgage. He testified that he explained to them that the September 30, 2006 Agreement was a “rent to own” contract, that no ownership interest would arise and that the final payment of the full purchase price would have to be paid before any ownership interest would transfer to them. He testified that he also explained the liquidated damages clause in the Agreement to the defendants, and informed them that they should consult an attorney if they had any questions about the Agreement. He testified that he did not tell the defendants that the plaintiff had any obligation to report their payments under the Agreement to a credit agency, but that he told them to keep their checks as evidence of their payments. He testified that he explained to the defendants that the weekly payments they were to make under the Agreement were for use and occupancy, and would not be applied toward the principal of the purchase price.

The defendant Donna Dininno testified that, with respect to the September 30, 2006 Agreement, she did not understand the term “contingent”, but did not ask about it. She testified that she thought the Agreement was a Purchase and Sale Agreement, to be followed by a refinancing within a year, and that the plaintiff “was the financing person we were doing the financing with”. She testified that Mr. Ruffo informed the defendants that, if they could not refinance at the end of a year, the money they paid “would come back to us and he would sell the house.” She testified that she believed that the weekly payments the defendants were making were mortgage payments, and that, at the end of the year, the defendants would refinance and the money they had paid would go towards the principal of the purchase price and they would refinance the rest. She testified that the weekly payments were initially $578.79 and that the defendants understood that these payments would increase if taxes went up. She testified that the plaintiff notified them orally at some unspecified time that the payments would be increased to $590.70 per week. She testified that she believed the $5,000.00 down payment the defendants made was to be held in escrow for the refinancing closing, and that she believed it would be applied to principal. She testified that she believed that the defendants were to find a mortgage company to refinance the property, and that, in March 2007, she made preparations to refinance the property but learned that there was nothing on record in the Registry of Deeds. She testified that her husband then went to the Attorney General, they hired a lawyer, and stopped making weekly payments at the end of May 2007. She also testified that the defendants could not make the weekly payments because her husband had lost his job, and that, in June 2007, their

checks “bounced”. She testified that, at this time, the plaintiff gave the defendants a chance to make payment arrangements. She also testified that the defendants stopped making payments because the Attorney General told them to do so and to get a lawyer. She testified that she did not tell the plaintiff that she believed there was fraud in connection with the transaction, even after contacting the Attorney General.

The defendant David Dininno testified that, on September 30, 2006, Mr. Ruffo “walked us through” the terms of the Agreement “quickly” and “hurried us along.” He testified that he has a seventh grade education, that he did not see the word “contingent” in the Agreement and that he does not know what that means. He testified that he believes the Agreement is not legal because the plaintiff called herself a lender. He testified that he did not understand the Agreement and that he relied on what Mr. Ruffo said. He testified that he stopped making payments at the end of May 2007 because the Attorney General told him he had been “scammed”. He testified that the defendants made one $800.00 payment after June 2007. He also testified that he asked the plaintiff for additional time to make payments because he lost his job.

The Court credits the defendants’ testimony with respect to the issues of the amount of the deposit they paid, the weekly payments they made under the Agreement, and the financial difficulties they encountered in June 2007 and thereafter. The Court credits the testimony of the plaintiff and of Mr. Ruffo on the issue of the terms of the Agreement and on the issue of the defendants’ understanding of the terms of the Agreement.

The Court finds that the amount of the Carrying Charges, i.e., use and occupancy, for the premises under the Agreement was $590.70 per week at all times relevant to the defendants’ arrearages and is due each Friday for the week just ended. The defendants testified that the defendants stopped paying use and occupancy at the end of May 2007, and the defendant David Dininno testified that the defendants made one payment of $800.00 in July 2007. The Court credits this testimony. Applying the defendants’ payments to the most aged balance of the arrears, the Court finds that the defendants have failed to pay the plaintiff any use and occupancy for the weeks ending June 15, 2007 through November 2, 2007, owe a balance of $381.40 for the week ending June 8, 2007, and currently owe the plaintiff a total of $12,786.10 in unpaid use and occupancy.

The Court finds that, on August 28, 2007, the plaintiff served the defendants with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent.

The defendants filed a written answer and counterclaims seeking return of the $5,000.00 deposit and the return of all payments they made which they believed were mortgage payments, as well as damages under G.L. c. 93A and intentional infliction of emotional distress.

The Court finds that, pursuant to Paragraph 4.3 of the Agreement, once the defendants defaulted on their weekly Carrying Charges obligation, the $5,000.00 which the defendants had paid to the plaintiff on September 30, 2006 and October 21, 2006 as a deposit constituted liquidated damages which the plaintiff is

authorized under the terms of the Agreement to retain. Accordingly, the Court finds that the defendants are not entitled to the return of any portion of the $5,000.00 deposit.

In their written answer and counterclaims, the defendants contend that they are entitled to the return of all payments they made which they believed were mortgage payments. In order to recover on such a claim for rescission, the Court finds that the defendants must prove that there was a fraudulent misrepresentation in this transaction. “To sustain a claim of misrepresentation, a [claimant] must show a false statement of a material fact made to induce the [claimant] to act, together with reliance on the false statement by the [claimant] to the [claimant’s] detriment.” Zimmerman v. Kent, 31 Mass.App.Ct. 72, 77 (1991). The Court finds that there was no evidence at trial that there was a false statement of material fact in connection with this transaction upon which the defendants could have relied to their detriment. Accordingly, the Court finds that the defendants are not entitled to the rescission of this transaction or to the return of payments they made which they contend they believed were mortgage payments.

In their written answer and counterclaims, the defendants contend that the plaintiff has violated G.L. c. 93A. The Court finds that there was no evidence at trial that the plaintiff is engaged in the trade or business of residential real estate. Accordingly, the Court finds that there was no evidence at trial that the plaintiff is subject to the provisions of G.L. c. 93A. See Lantner v. Carson, 372 Mass. 606 (1978). Accordingly, the Court finds that the defendants are not entitled to damages based on this claim.

In their written answer and counterclaims, the defendants contend that the plaintiff’s actions constituted an intentional infliction of emotional distress.

The defendant Donna Dininno testified that, once the defendants were in arrears on their weekly payments, she gave the plaintiff her work telephone number as a place to contact her, and that the plaintiff “constantly called” the defendants at home and at work. She testified that the plaintiff went to her place of employment and sat in the parking lot in July 2007, “wanting money”. She testified that, because of this, she took her five year old daughter into the woods and waited for her husband to pick her up. She testified that the plaintiff sat in the parking lot until her place of employment closed and then went to her house when her daughter was home alone, and that her daughter called 911. The Court credits this testimony.

The Court finds that there was no evidence at trial that any

emotional distress sustained by either of the defendants was severe. Accordingly, the Court finds that the defendants are not entitled to an award of damages based on this claim.

The Court finds that the plaintiff has established her case for possession of the premises and damages for unpaid rent in the amount of $12,786.10, plus costs.

ORDER FOR JUDGMENT

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

1. Judgment enter for the plaintiff for possession of the premises and damages for unpaid use and occupancy in the amount of $12,786.10, plus costs.

2. Judgment enter for the plaintiff on the defendants’ counterclaims.

3. Execution issue ten (10) days after the date that judgment enters.

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[1] The Court finds that, prior to the execution of the Agreement on September 30, 2006, the plaintiff owned 100% of the Member Interests in WHJ Realty, LLC, and finds that WHJ Realty, LLC has been the record owner of the premises at all times relevant to this action.

End Of Decision

HOUSING COURT

Michael Chafe v. Donald Rocci and Wendy Rocci

SOUTHEASTERN DIVISION

Docket # 08-SP-00211

Parties: Michael Chafe v. Donald Rocci and Wendy Rocci

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: January 31, 2008

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

This is a summary process action in which the plaintiff seeks to recover possession of the premises from the defendants and damages for unpaid rent.

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

The defendants, Donald Rocci and Wendy Rocci, have resided at 32 Talbot Avenue, 2nd Floor, Taunton, MA (“the premises”) as tenants at will from June 2006 through January 13, 2008. The plaintiff, Michael Chafe, is the owner of the premises and is the defendants’ landlord. The rent for the premises is $1,100.00 per month.

The plaintiff testified that the rent for the premises is due on the first day of each month, that the defendants have failed to pay him any rent for the months of December 2007 and January 2008, and currently owe him a total of $2,200.00 in unpaid rent. The defendant Donald Rocci testified that the rent is paid bi-weekly, and that the defendants pay $550.00 on the first day of the month “or whenever I get paid,” and that they pay another $550.00 two weeks later. The defendant Donald Rocci testified that, since the defendants vacated the premises on January 13, 2008, they owe the plaintiff rent for the month of December 2007 and for the first half of January 2008. The Court credits the plaintiff’s testimony on these issues, and finds that the rent for the premises is $1,100.00 per month, finds that the rent is due on the first day of each month, and finds that the defendants have failed to pay the plaintiff any rent for the months of December 2007 and January 2008, and currently owe the plaintiff a total of $2,200.00 in unpaid rent.

The Court finds that, on December 21, 2007, the plaintiff served

the defendants with a legally sufficient 14 Day Notice To Vacate for Non-Payment of Rent-Tenant At Will.

At trial, the defendant Donald Rocci testified that there are defective conditions in the premises.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant Donald Rocci testified that the plaintiff did not turn the heat on at the premises this fall until sometime in December 2007. He testified that the City of Taunton Board of Health (“Board of Health”) inspected the premises on November 21, 2007. The Court credits this testimony.

The Court finds that, on November 26, 2007, the Board of Health inspected the premises and found the following conditions: “1. No heat throughout apartment…Order: Repair or replace heating facilities to ensure the system is in proper working order….2. Rear Exterior common area stairway light in disrepair…Order: Repair or replace rear exterior common area stairway lighting….3. (a) Smoke detectors not present or in disrepair throughout dwelling unit. (b) Carbon monoxide detectors not present throughout dwelling unit…Order: Properly repair or replace smoke detectors and carbon monoxide alarms throughout unit in compliance with 527 CMR….4. (a) Ceiling tiles in living room in disrepair. Tiles area not properly secured to ceiling. (b) Overhead light in bedroom area in disrepair. (c) Shower in bathroom area in disrepair. Shower walls are not water tight…Order: (a) Properly repair or replace damaged ceiling tiles throughout unit. (b) Replace overhead light in bedroom area. (c) Properly repair or replace shower walls in bathroom area….”

The defendant Wendy Rocci testified that the defendants used the oven in the kitchen to heat the premises in October 2007 and November 2007 until November 29, 2007, when the plaintiff turned the heat on. She testified that she did not notify the plaintiff of the remaining conditions listed in the November 26, 2007 Board of health Report, but that the plaintiff could observe that the rear exterior light was out when he came to the premises. She also testified that the plaintiff has not repaired the remaining conditions listed in the Board of Health Report, but that the Board of Health informed her that the plaintiff could wait until the defendants had vacated the premises before making the repairs because she had informed the Board of Health that she was not comfortable having the plaintiff in the premises when she was there. The plaintiff testified that he told the defendants to call him if it got cold in the apartment and he would turn the heat on. The Court credits the parties’ testimony on these issues.

The Court finds that the lack of heat in the premises is a

condition which constitutes a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). Id. The Court finds that the defendants are entitled to a defense to possession and to damages under G.L. c. 239, s.8A with respect to this condition.

The Court finds that the remaining conditions listed in the November 26, 2007 Board of Health Report, in the aggregate, are conditions which constitute a material breach of the implied warranty of habitability. Id. The Court finds that the defendants are not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on these conditions, since the defendant Wendy Rocci informed the Board of Health that she did not want the plaintiff to repair these conditions while the defendants occupied the premises.

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 enter for the plaintiff for damages for unpaid rent in the amount of $2,200.00, plus costs in the amount of $184.91, a total of $2,384.91.

2. Judgment enter for the defendants on their counterclaim for breach of the implied warranty of habitability in the amount of $2,748.16.

3. The foregoing orders for judgment paragraphs 1 and 2 result in a net judgment for damages for the defendants in the amount of $363.25.

4. Judgment enter for the defendants for possession of the premises pursuant to G.L. c. 239, s.8A.

5. Execution issue ten (10) days after the date that judgment enters.

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[1] The Court finds that the State Sanitary Code, 105 CMR 410.201 requires that “the owner shall provide heat in every habitable room…to at least 68? F (20? C) between 7:00 A.M. and 11:00 P.M. and at least 64? F (17? C) between 11:01 P.M. and 6:59 A.M. every day other than during the period from June 15th to September 15th, both inclusive…”

[2] The per diem rental amount is calculated as follows:$1,100.00 x 12 = $13,200.00 ? 365 = $36.16.

End Of Decision

HOUSING COURT

Michael Chafe v. Donald Rocci and Wendy Rocci

SOUTHEASTERN DIVISION

Docket # 08-SP-00211

Parties: Michael Chafe v. Donald Rocci and Wendy Rocci

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: January 31, 2008

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

This is a summary process action in which the plaintiff seeks to recover possession of the premises from the defendants and damages for unpaid rent.

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

get paid,” and that they pay another $550.00 two weeks later. The defendant Donald Rocci testified that, since the defendants vacated the premises on January 13, 2008, they owe the plaintiff rent for the month of December 2007 and for the first half of January 2008. The Court credits the plaintiff’s testimony on these issues, and finds that the rent for the premises is $1,100.00 per month, finds that the rent is due on the first day of each month, and finds that the defendants have failed to pay the plaintiff any rent for the months of December 2007 and January 2008, and currently owe the plaintiff a total of $2,200.00 in unpaid rent.

The Court finds that, on December 21, 2007, the plaintiff served the defendants with a legally sufficient 14 Day Notice To Vacate for Non-Payment of Rent-Tenant At Will.

At trial, the defendant Donald Rocci testified that there are defective conditions in the premises.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

out when he came to the premises. She also testified that the plaintiff has not repaired the remaining conditions listed in the Board of Health Report, but that the Board of Health informed her that the plaintiff could wait until the defendants had vacated the premises before making the repairs because she had informed the Board of Health that she was not comfortable having the plaintiff in the premises when she was there. The plaintiff testified that he told the defendants to call him if it got cold in the apartment and he would turn the heat on. The Court credits the parties’ testimony on these issues.

The Court finds that the lack of heat in the premises is a condition which constitutes a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). Id. The Court finds that the defendants are entitled to a defense to possession and to damages under G.L. c. 239, s.8A with respect to this condition.

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 enter for the plaintiff for damages for unpaid rent in the amount of $2,200.00, plus costs in the amount of $184.91, a total of $2,384.91.

2. Judgment enter for the defendants on their counterclaim for breach of the implied warranty of habitability in the amount of $2,748.16.

3. The foregoing orders for judgment paragraphs 1 and 2 result in a net judgment for damages for the defendants in the amount of $363.25.

4. Judgment enter for the defendants for possession of the premises pursuant to G.L. c. 239, s.8A.

5. Execution issue ten (10) days after the date that judgment enters.

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[2] The per diem rental amount is calculated as follows:$1,100.00 x 12 = $13,200.00 ? 365 = $36.16.

End Of Decision

HOUSING COURT

Aimco d/b/a Castle Court Apartments, PLAINTIFF v. Larisha Cobb, Stevenson Michel, and all occupants, DEFENDANTS

SOUTHEASTERN DIVISION

Docket # Docket No. 08-CV-00032

Parties: Aimco d/b/a Castle Court Apartments, PLAINTIFF v. Larisha Cobb, Stevenson Michel, and all occupants, DEFENDANTS

Judge: /s/ ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: March 28, 2008

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

This is a civil action which was transferred from the summary process list once the issue of possession became moot. In this action, the plaintiff seeks to recover damages from the defendants for unpaid rent, and the defendants seek to recover damages from the plaintiff for defective conditions in the premises, pain and suffering, and violations of G.L. c. 186, s.15B.

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

The defendants, Larisha Cobb and Stevenson Michel, resided at 4980 N. Main St., Apt. #6-3, Fall River, MA (‘the premises’) as tenants under a written lease from February 1, 2007 through December 1, 2007. The plaintiff, Aimco, d/b/a Castle Court Apartments, is the owner of the premises and was the defendants’ landlord. The rent for the premises was $894.00 per month and was due on the first day of each month.

Elaine Kaminski, the plaintiff’s property manager, testified that the defendants did not notify the plaintiff that they were vacating the premises until mid-November 2007, and that the lease between the parties requires that the defendants give the plaintiff thirty (30) days written notice of their intention to vacate the premises. She testified that the defendants owe the plaintiff the market rent of $954.00 for the months of November 2007 and December 2007, since the $60.00 per month rent concession provided to the defendants under the lease is due retroactively to the beginning of their lease if they accumulate a rental arrearage. She testified that the total retroactive rent concession due is $923.80, and that the defendants owe the plaintiff late fees in the amount of $50.00 per month for the months of November 2007 and December 2007. She also testified that the defendants owe the plaintiff $55.00 for cleaning the kitchen appliances after they vacated the premises, $70.00 for cleaning the carpets, which were new at the inception of the defendants’ tenancy, $75.00 for failing to return the key upon vacating the premises, and $25.00 for failing to return the access key to the community room upon vacating the premises, a total of $3,036.80.

The Court finds that Paragraphs F and 1. of the Concession Addendum to the lease between the parties provide: ‘F. Recoupment: The Concession stated in this Addendum shall be a ‘Rent Concession’ as defined in the Lease and recouped by Landlord if the Lease is terminated early by Resident or Resident is in default of the Lease. (check if applicable)

________ Recouped by Landlord

________ Not Recouped by Landlord.

‘RESIDENT AND LANDLORD AGREE AS FOLLOWS:

1. Concession. Landlord grants Resident the Concession stated in this Addendum, subject to the terms and conditions of this

Addendum and the Lease. Resident accepts such Concession, subject to the terms and conditions of this Addendum and the Lease. Resident is receiving the Concession with the understanding that Resident will fulfill all of the terms of the Lease. If Resident fails to fulfill all of the terms of the Lease, then Resident shall not be entitled to any further Concession not then paid and, if checked above, Resident shall pay Landlord the Concessions that previously have been paid or credited by Landlord to Resident. (emphasis added).’

The Court finds that the plaintiff is not entitled to recoup the rent concession in this action, since Paragraph F of the Rent Concession Addendum was not checked. The Court also finds that the plaintiff is not entitled to recover for the damages listed on the Move-Out Reconciliation Form in a summary process action.

The Court finds that, since the defendants gave the plaintiff only 15 days notice that they were vacating the premises, they remain responsible for payment of the rent for the month of December 2007. The Court finds that the defendants have failed to pay the plaintiff any rent for the months of November 2007 and December 2007 at the rate of $894.00 per month, a total of $1,788.00, and have failed to pay the plaintiff late fees in the amount of $50.00 per month for the months of November 2007 and December 2007, a total of $100.00. Accordingly, the Court finds that the defendants currently owe the plaintiff a total of $1,888.00 in unpaid rent and late fees.

The Court finds that, on November 7, 2007, the plaintiff served the defendants with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent.

The defendants filed a written answer and counterclaims based on conditions in the premises, pain and suffering, and violations of G.L. c. 186, s.15B.

The defendant Larisha Cobb (‘Ms. Cobb’) testified that the premises is a basement apartment, and that there was an infestation of spiders, centipedes and caterpillars during the defendants’ tenancy. She testified that she cleaned the apartment, but then she would see insects on the wall. She testified that the spiders would come down while her children were eating. She testified that her husband and her children were bitten by bugs, and needed antibiotics. She testified that, on September 17, 2007, the plaintiff had scheduled an exterminator, and she was nine (9) months pregnant, and had two (2) doctors’ appointments on that day. She testified that she informed the property manager that she wanted to see the exterminator in person before she left for her appointments, and that, after she had seen him, she wanted the premises to be sprayed

while she was out. She testified that, instead, the exterminator arrived after she had left, and that, when she came back to the premises, she found a note on her door that the exterminator had been there. She testified that she called maintenance to ask why there was a spider on the rug if they just sprayed, and that the maintenance man came over and killed the spider with a paper towel. She testified that, when the property manager came over that same day, she asked her for a month-to-month tenancy, but the property manager refused to do so. She testified that the spiders would come from outside the apartment. She testified that the plaintiff promised to exterminate the hallway and outside too, but they didn’t. The Court credits this testimony.

The defendant Stevenson Michel (‘Mr. Michel’) testified that there were no insects at the inception of the defendants’ tenancy, and that the insects appeared one (1) month into the defendants’ tenancy. He testified that he did not believe that the plaintiff had exterminated the premises on September 17, 2007 because the spiders were still present after the extermination. The Court credits this testimony.

Christopher Cardoza, the plaintiff’s service manager, testified that, on a Saturday in September 2007, Mr. Michel telephoned and reported a frog on the patio outside the apartment, and informed him for the first time that there was an insect problem in the apartment. He testified that an exterminator sprayed the apartment on the following Monday, September 17, 2007 . He testified that Mr. Michel told him later that day that he did not believe the extermination worked, because he saw a spider. He testified that he explained to Mr. Michel that it takes several days for the spray to kill the spiders. He testified that Mr. Michel informed him that he did not want anyone to go into the premises if he was not home, and that Mr. Michel approved the return of the exterminator. He testified that he told the defendant when the exterminator would return, but the defendants did not allow access. He testified that Mr. Michel called the next weekend to report a spider, and that he went to the premises himself. He testified that Mr. Michel informed him, ‘Never mind; I’m all set. I took care of it.’ The Court credits this testimony, and finds that the plaintiff did exterminate the premises for spiders on September 17, 2007.

The Court finds that there was no evidence at trial that the plaintiff knew or should have known that there were spiders in the premises until the defendant Mr. Michel notified the plaintiff’s service manager on September 15, 2007. The Court finds that the presence of spiders in the premises is a condition which constitutes a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that the defendants are entitled to recover damages under G.L. c. 239, s.8A based on this condition.

follows: $31.36/day[1] x 20% = $6.27 x 3 = $18.81.

In their written answer and counterclaims, the defendants seek to recover damages for pain and suffering. The Court finds that this claim constitutes a claim for intentional infliction of emotional distress.

Ms. Cobb testified that Mr. Michel and her children were bitten by the spiders, and were treated with antibiotics. Mr. Michel testified that he lost his temporary job after he went to the emergency room when he was bitten by the spider. The Court credits this testimony.

The Court finds that there was no evidence at trial that the plaintiff knew or should have known of the presence of spiders in the premises at the time Mr. Michel and his children were bitten. Accordingly, the Court finds that there was no evidence at trial that any agent of the plaintiff engaged in any conduct which was ‘extreme and outrageous,’ and finds that there was no evidence at trial that any agent of the plaintiff engaged in any actions that were the cause of any emotional distress the defendants may have sustained. Accordingly, the Court finds that the defendants are not entitled to recover damages based on this claim.

The elements of a claim for negligent infliction of emotional distress are as follows: “(1) negligence; (2) emotional distress; (3) causation; (4) physical harm manifested by objective symptomatology; and (5) that a reasonable person would have suffered emotional distress under the circumstances of the case.” Payton v. Abbott Labs, 386 Mass. 540, 557 (1982). “A successful negligent infliction of emotional distress claim…must do more than allege ‘mere upset, dismay, humiliation, grief and anger. (citation omitted).” Sullivan v. Boston Gas Co., 414 Mass. 129, 137 (1993). The Court finds that there was no evidence at trial that any agents of the plaintiff engaged in any negligent conduct or that any actions of the plaintiff’s agents caused any emotional distress which the defendants may have suffered.. Accordingly, the Court finds that the defendants are not entitled to recover damages based on this claim.

In their written answer and counterclaims, the defendants contend that the plaintiff violated the provisions of G.L. c. 186, s.15B with respect to their security deposit.

Ms. Cobb testified that the defendants paid the plaintiff a security deposit in the amount of $500.00 at the inception of their tenancy. Ms. Kaminski testified that the plaintiff applied the defendants’ security deposit to the damages in the premises after the defendants vacated the premises. The Court credits this testimony.

G.L. c. 186, s.15B(3)(a) provides, in pertinent part: ‘Any security deposit received by such lessor shall be held in a separate, interest-bearing account in a bank, located within the commonwealth under such terms as will place such deposit beyond the claim of creditors of the lessor…A receipt shall be given to the tenant

within thirty days after such deposit is received by the lessor which receipt shall indicate the name and location of the bank in which the security deposit has been deposited and the amount and account number of said deposit. Failure to comply with this paragraph shall entitle the tenant to immediate return of the security deposit.’

G.L. c. 186, s.15B(4) provides, in pertinent part: ‘The lessor shall, within thirty days after the termination of occupancy under a tenancy-at-will, or the end of the tenancy as specified in a valid written lease agreement, return to the tenant the security deposit or any balance thereof; provided, however, that the lessor may deduct from such security deposit for the following:…(iii) a reasonable amount necessary to repair any damage caused to the dwelling unit by the tenant or any person under the tenant’s control or on the premises with the tenant’s consent, reasonable wear and tear excluded. In the case of such damage, the lessor shall provide to the tenant within such thirty days an itemized list of damages, sworn to by the lessor or his agent under pains and penalties of perjury, itemizing in precise detail the nature of the damage and of the repairs necessary to correct such damage, and written evidence, such as estimates, bills, invoices or receipts, indicating the actual or estimated cost thereof. No amount shall be deducted from the security deposit for any damage to the dwelling unit which was listed in the separate written statement of the present condition of the premises which was required to be given to the tenant prior to the execution of the lease or creation of the tenancy pursuant to clause (c) of subsection (2) or any damages listed in any separate list submitted by the tenant and signed by the lessor or his agent pursuant to said clause (c), unless the lessor subsequently repaired or caused to be repaired said damage and can prove that the renewed damage was unrelated to the prior damage and was caused by the tenant or by any person under the tenant’s control or on the premises with the tenant’s consent. Nothing in this section shall limit the right of a landlord to recover from a tenant, who wilfully or maliciously destroys or damages the real or personal property of said landlord, to the forfeiture of a security deposit, when the cost of repairing or replacing such property exceeds the amount of such security deposit.’

G.L. c. 186, s.15B(6) provides, in pertinent part: ‘The lessor shall forfeit his right to retain any portion of the security deposit for any reason, or, in any action by a tenant to recover a security deposit, to counterclaim for any damages to the premises if he: (a) fails to deposit such funds in an account as required by subsection (3);…or (e) fails to return to the tenant the security deposit or balance thereof to which the tenant is entitled after deducting therefrom any sums in accordance with the provisions of this section, together with any interest thereon, within thirty days after termination of the tenancy.’

G.L. c. 186, s.15B(7) provides: ‘If the lessor or his agent fails to comply with clauses (a), (d), or (e) of subsection (6), the tenant shall be awarded damages in an amount equal to three times the amount of such security deposit or balance thereof to which the tenant is entitled plus interest at the rate of five per cent from the date when such payment became due, together with court costs and reasonable attorney’s fees.’

The Court finds that the Move Out Reconciliation form which the plaintiff sent to the defendants on December 31, 2007 did not comply

with the provisions of G.L. c. 186, s.15B(4)(iii) in that it was not signed under the pains and penalties of perjury. The Court finds that this entitles the defendants to the immediate return of their security deposit. The Court finds that there was no evidence at trial that the plaintiff had placed the defendants’ security deposit into an interest-bearing escrow account in compliance with G.L. c. 186, s.15B(6)(a). The Court finds that the plaintiff has violated the provisions of G.L. c. 186, s.15B(6)(e) in that the plaintiff did not return the defendants’ security deposit, plus accrued interest, within thirty (30) days after the termination of their tenancy. The Court finds that the defendants are entitled to treble damages under G.L. c. 186, s.15B(7). Accordingly, the Court finds that the defendants are entitled to the immediate return of the security deposit in the amount of $500.00 under G.L. c. 186, s.s.15B(6)(a) and (e), trebled to $1,500.00 under G.L. c. 186, s.15B(7).

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 enter for the plaintiff for damages for unpaid rent in the amount of $1,888.00, plus costs in the amount of $170.00, a total of $2,058.00.

2. Judgment enter for the defendants on their counterclaim for breach of the implied warranty of habitability in the amount of $18.81.

3. Judgment enter for the defendants under G.L. c. 186, s.15B in the amount of $1,500.00.

4. Judgment enter for the plaintiff on the defendants’ remaining counterclaims.

5. The foregoing order for judgment paragraphs 1 through 4 result in a net judgment for the plaintiff for damages in the amount of $369.19, plus costs in the amount of $170.00, a total of $539.19.

6. Execution issue thirty (30) days after the date that judgment enters.

————————-

[1] The per diem rental amount is calculated, using the contract rent figure, as follows:$ 954.00 x 12 = $11,448.00 ? 365 = $31.36.

End Of Decision

HOUSING COURT

Douglas Ducharme, PLAINTIFF v. Shelly Harrison, DEFENDANT

SOUTHEASTERN DIVISION

Docket # Docket No. 07-SP-07864

Parties: Douglas Ducharme, PLAINTIFF v. Shelly Harrison, DEFENDANT

Judge: /s/ ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: March 27, 2008

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

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

The defendant, Shelly Harrison, has resided at 20 Covell Street, 2nd floor, New Bedford, MA (‘the premises’) as a tenant at will since 1998. The plaintiff, Douglas Ducharme, is the owner of the premises and is the defendant’s landlord. The rent for the premises is $800.00 per month and is due on the first day of each month. The defendant has failed to pay the plaintiff any rent for the months of October 2007 through January 2008, and currently owes the plaintiff a total of $3,200.00 in unpaid rent.

The Court finds that, on December 3, 2007, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Vacate for Non-Payment of Rent-Tenant at Will.

The defendant filed a written answer and counterclaims based on defective conditions in the premises and violations of G.L. c. 239, s.2A and G.L. c. 186, s.18.

The defendant testified that she has lived at the premises for approximately ten (10) years. She testified that the upstairs toilet has leaked repeatedly, and repeatedly ‘collapses the ceiling’. She testified that this condition has never been correctly repaired, that the bathroom ceiling began to leak again ‘at Christmas time’ in 2006, and that she was using pans to catch urine that was dripping from the third floor bathroom. She testified that she notified the plaintiff of the condition, but that no repairs were made. She testified that, on February 16, 2007, the bathroom ceiling collapsed, and that she notified the plaintiff, but no one came to repair the ceiling, so she called the City of New Bedford Department of Inspectional Services, Minimum Housing Division (‘Minimum Housing’). She testified that the bathroom ceiling smelled of urine throughout the summer of 2007, and that the plaintiff’s workers sprayed bleach up in the sub-ceiling, but it was never cleaned. The defendant also testified that the kitchen ceiling has been damaged from the bathroom ceiling leak, and that there are cracks in the walls. She testified that the plaintiff puttied and painted over in this area, but mold came back. She testified that the plaintiff put sheetrock in and painted the ceiling with Kilz to kill the mold. She testified that the roof has been leaking for months. She also testified that the cellar has been leaking ‘for years,’ that it is currently leaking and that water comes through the foundation when it is raining. She testified that the pipes in the cellar are still leaking, and that she has observed beads on the pipes. She testified that, in 2000, she complained to Minimum Housing about commingling of electricity, but never went through with her complaint, because her electricity was turned off at that time, so Minimum Housing could not confirm the existence of any commingling. She testified that, in August 2007, she realized that two (2) cellar lights were still on her electric meter, and called Minimum Housing. She testified that mice are running in the hallways and in the walls, that the plaintiff exterminated only once, in July 2007. She testified that she believes the mice are in the attic, because she saw mice feces there at some unspecified time during her tenancy.

Alexandra Harrison, the defendant’s daughter, testified that the bathroom ceiling leaks, the ceiling is cracked, and that urine drips from the ceiling. She testified that there is mold in the premises and in the cellar, and that the bathroom is starting to smell like urine again.

Manuel Costa, a Minimum Housing Inspector, testified that Minimum Housing inspected the premises on or about February 28, 2007,

August 1, 2007, August 31, 2007, November 21, 2007 and January 7, 2008. The Court credits this testimony.

The Court finds that the following condition was listed in the Minimum Housing Report No. 25492 dated February 28, 2007: ‘The owner at all times should pay for the electricity that is not separately metered from the second floor apartment. Two (2) cellar lights; two (2) rear hall lights on the 1st flr. landing; one (1) rear hall light on the 2nd flr. landing; one (1) front hall light on the 1st flr. landing near main entry door. Total lights: six (6).’ The Court finds that Minimum Housing re-inspected the premises on May 21, 2007, and found that the plaintiff had corrected the condition by placing the lights in question on a house meter.

The Court finds that the following conditions were listed on the Minimum Housing Report No. 25493 dated February 28, 2007: ‘Owner shall find the cause of leak in bathroom ceiling; Owner shall replace damaged ceiling squares in bathroom after repairing leak; Owner shall eliminate small amount of mold on upper tile wall in bathroom above bathtub; Owner shall replace missing tiles on upper wall above bathtub.’ The Court finds that Minimum Housing re-inspected the premises on May 21, 2007 and found that these conditions had been corrected.

The Court finds that the following condition was listed in the Minimum Housing Report No. 25637 dated August 1, 2007: ‘Owner at all times shall pay for the electricity that is not separately metered from the 2nd flr. apartment. Two (2) cellar lights. Total: two (2) lights.’ The Court finds that Minimum Housing conducted a re-inspection of the premises on September 7, 2007 and determined that this condition had been corrected.

The Court finds that the following conditions were listed in the Minimum Housing Report No. 25638 dated August 1, 2007: ‘Owner shall remove small amount of mold build up on upper walls above bathtub area; Owner shall replace missing outlet cover plate for outlet located near refrigerator; Owner shall replace portion of wall in bathroom around bathtub area; Owner shall replace missing wall tiles on wall – bathroom wall around bathtub; Owner shall provide a wall or protective railing for the safety and use of all occupant’s – very loose railing on the rear porch.’ The Court finds that, on August 27, 2007, the parties signed an Agreement in Harrison v. Ducharme, No. 07-CV-00585, in which the parties agreed, inter alia, as follows: ‘[1]. Both parties agree that all repairs have been made per City of New Bedford Dept. of Inspectional Service date Aug. 1, 2007 #25638…’

The Court finds that the following conditions are listed in the Minimum Housing Report No. 25675 dated August 31, 2007: ‘Owner shall repair to secure the wooden thresholds where needed throughout apartment. Loose-unattached; Owner shall repair or replace flooring underneath the kitchen cabinet. Rotted; Owner shall repair the kitchen ceiling and the upper walls of any cracks and water stains; Rotting some-clean and sanitize mildew; Owner shall provide proper ventilation in bathroom; Owner shall clean and sanitize any mildew in bathroom on ceiling squares; Owner shall replace door knob for the front interior exit door; Owner shall provide window screens for windows where needed throughout apartment; Owner shall clean stairways in rear hall; Owner shall repair to eliminate any holes in walls of the front hallway; Owner shall clean and sanitize bottom basement walls of any mold or mildew.’ The Court finds that Minimum

Housing conducted a re-inspection of the premises on October 25, 2007 and found that 11 of the 12 conditions had been corrected, and finds that the remaining condition was corrected by October 29, 2007.

The Court finds that the following conditions are listed in the Minimum Housing Report No. 25760 dated November 21, 2007 with respect to the defendant’s apartment: ‘Repair bathroom sub-ceiling to eliminate gap in third floor unit’s flooring; Treat sub-ceiling structure (bathroom) to eliminate possible contamination; refinish kitchen ceiling and wall to eliminate stains; Replace bedroom window’s lower sash to eliminate broken pane; repair or replace all interior exit doors where needed; Repair rear interior exit door to cause a weathertight condition; Repair or replace missing or damage (sic) screens to front hallway windows; Provide exit door to cellar bulkhead.

Inspector Costa testified that he attempted to re-inspect the premises on December 17, 2007, but there was no answer in the defendant’s apartment, and that he left voice mail messages for the defendant on December 27, 2007 and January 2, 2008 that he wanted to schedule a re-inspection, but that she did not return his call. He testified that, in his January 2, 2008 message, he informed the defendant that he would file a complaint in this Court if she did not schedule a re-inspection. He testified that the defendant did respond to his January 2, 2008 voice mail message, and that, on January 7, 2008, he was able to re-inspect the premises. He testified that, on January 7, 2008, he found that all violations, except for the front hallway screens, had been corrected. The Court credits this testimony.

The Court finds that, on July 17, 2007, the City of New Bedford Department of Inspectional Services, Environmental Health Division, (‘Environmental Health’) inspected the premises and found the following conditions: ‘Mice droppings evident in kitchen area under counters, also inside broiler. [Third floor apartment]. Ceilings soaked when raining. Badly discolored in two rooms. Mice in attic. Secure the services of a professional exterminator for mice.’ The Court finds that the plaintiff had the premises exterminated for mice on July 31, 2007.

The Court finds that, in the August 27, 2007 Agreement between the parties in Harrison v. Ducharme, No. 07-CV-00585, the parties further agreed as follows: ‘…[2]. The Defendant agrees to exterminate for mice on the premises as ordered by Dept. of Inspectional Services dated 8/6/07. [3]. The Defendant agrees to waive $400.00 of use and occupancy due for August rent reducing balance to $400.00 to be paid to the defendant on or before September 7th, 2007. 4. The Plaintiff agrees to pay $200.00 on or before September 14th for use and occupancy and $700.00 on the first of every month thereafter until documentation for rodent extermination is complete and the kitchen stove has been cleaned and sanitized from rodent droppings.’ The Court finds that neither party appeared in court for the Case Management Status Conference in this civil action which was held on October 1, 2007, and the case was dismissed at that time. The Court finds that it is a reasonable inference that the parties had performed all of their respective obligations under the August 27, 2007 Agreement by October 1, 2007.

The plaintiff testified that the defendant does not notify him of any repairs that are needed, but goes directly to Minimum Housing.

He testified that, when Minimum Housing found that some of the cellar and hallway lights were on the defendant’s electric meter in February 2007, NStar put the electric bill in his name and charged him $240.00 to reimburse the defendant for the cost of those lights being on her meter. He testified that the defendant removed fixtures from the walls of the premises and that she pulled up wall to wall carpeting without his permission, resulting in those conditions being included on the August 31, 2007 Minimum Housing Report. The plaintiff also testified that the rear door to the premises had been ‘kicked in’ and filled with insulation at some unspecified time during the defendant’s tenancy.

The plaintiff testified that he received notice on one (1) occasion that the bathroom ceiling needed to be repaired, and that he did so. He testified that, although the ceiling tiles did get wet, he did not see that any portion of the ceiling collapsed. He testified that he replaced the wet ceiling tiles. He testified that he has fixed and remodeled the third floor apartment, and that the pipes in the cellar are sweating, not leaking. The Court credits the testimony of Inspector Costa and the plaintiff on these issues.

The Court finds that the defendant has previously been reimbursed for the commingling of the electricity noted in the February 28, 2007 Minimum Housing Report No. 25492, and that no further rent abatement is required. Accordingly, the Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this condition.

The Court finds that the defendant caused the damage to the flooring and the woodwork in the premises which is listed in the August 31, 2007 Minimum Housing Report No. 25675. Accordingly, the Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on these conditions.

The Court finds that the remaining conditions listed in the Minimum Housing Reports Nos. 25493, 25637, 25638, 25675 and 25760, in the aggregate, are conditions which constitute material breaches of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). Id. The Court finds that the defendant is entitled to a defense to possession and to damages under G.L. c. 239, s.8A with respect to the conditions listed in Minimum Housing Reports Nos. 25493, 25637, 25638, and 25675. The Court finds that the defendant is not entitled to a defense to possession under G.L. c. 239, s.8A based on the conditions listed in Minimum Housing Report No. 25760, since she was already in arrears in her rent at the time that the plaintiff learned of the existence of these conditions. The Court finds that the defendant is entitled to damages under G.L. c. 239, s.8A based on these conditions.

The Court finds that the presence of mice in the premises is a condition which constitutes a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). Id. The Court finds that the defendant is entitled to a defense to possession and to damages under G.L. c. 239, s.8A based on this condition.

defects is $800.00 per month. The Court finds that the defendant is entitled to the following rent abatements: (1) for the conditions listed in Minimum Housing Report No. 25493, in the aggregate, for the 83 day period between February 28, 2007 and May 21, 2007, twenty per cent (20%); (2) for the condition listed in Minimum Housing Report No. 25637 for the 38 day period between August 1, 2007 and September 7, 2007, five per cent (5%); (3) for the conditions listed in Minimum Housing Report No. 25638, in the aggregate, for the 27 day period between August 1, 2007 and August 27, 2007, ten per cent (10%); (4) for the remaining conditions listed in Minimum Housing Report No. 25675, in the aggregate, for the 60 day period between August 31, 2007 and October 29, 2007, fifteen per cent (15%); (5) for the conditions listed in Minimum Housing Report No. 25760, in the aggregate, for the 27 day period between November 21, 2007 and December 17, 20071, thirty per cent (30%); (6) for the defective screens listed in Minimum Housing Report No. 25760 for the 12 day period between January 7, 2008 and January 18, 2008, five per cent (5%) and (7) for the presence of mice in the premises for the 42 day period between July 17, 2007 and August 27, 2007, twenty per cent (20%), calculated as follows: ($26.30/day2 x 20% = $5.26 x 83 = $436.58) + ($26.30/day x 5% = $1.32 x 38 = $50.16) + ($26.30/day x 10% = $2.63 x 27 = $71.01) + ($26.30/day x 15% = $3.95 x 60 = $237.00) + ($26.30/day x 30% = $7.89 x 27 = $213.03) + ($26.30/day x 5% = $1.32 x 12 = $15.84) + ($26.30/day x 20% = $5.26 x 42 = $220.92) = $1,244.54.

In her written answer and counterclaims, the defendant contended that the plaintiff violated G.L. c. 239, s.2A and G.L. c. 186, s.18 in that he served her with the Summary Process Summons and Complaint in this action within six (6) months after she exercised her statutory rights.

G.L. c. 239, s.2A provides, in pertinent part: ‘It shall be a defense to an action for summary process that such action or the preceding action of terminating the tenant’s tenancy, was taken against the tenant for the tenant’s act of commencing, proceeding with, or obtaining relief in any judicial or administrative action the purpose of which action was to obtain damages under or otherwise enforce, any federal, state or local law, regulation, by-law, or ordinance, which has as its objective the regulation of residential premises, or…reporting a violation or suspected violation of law as provided in section eighteen of chapter one hundred and eighty-six….The commencement of such 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 commenced, proceeded with or obtained relief in such action, (or)..made such report..shall create a rebuttable presumption that such summary process is a reprisal against the tenant for engaging in such activities…Such presumption may be rebutted only by clear and convincing evidence3 that such action was not a reprisal against the tenant, and that the plaintiff 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, even if the tenant had not…engaged in such activity.’

administrative action the purpose of which action is to obtain damages under, or otherwise enforce, any federal, state or local law, regulation, by-law or ordinance, which has as its objective the regulation of residential premises; or…reporting to the board of health or, in the city of Boston, to the commissioner of housing inspection or to any other board having as its objective the regulation of residential premises; or reporting or complaining of such violation or a suspected violation in writing to the landlord or to the agent of the landlord…shall be liable for damages which shall not be less than one month’s rent or more than three months’ rent, or the actual damages sustained by the tenant, whichever is greater, and the costs of the suit, including a reasonable attorney’s fee. The receipt of any notice of termination of tenancy except for non-payment of rent or, of increase in rent or, of any substantial alteration in the terms of tenancy within six months after the tenant has…made such report or complaint…shall create a rebuttable presumption that such notice or other action is a reprisal against the tenant for engaging in such activities. Such presumption shall be rebutted only by clear and convincing evidence that such person’s action was not a reprisal against the tenant and that such person 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 tenant engaging in, or the belief that tenants had engaged in, activities protected under this section.’

The Court finds that the defendant is entitled to the statutory presumption of retaliation pursuant to G.L. c. 239, s.2A. The Court finds, on the facts of this case, that the plaintiff has established by clear and convincing evidence that he did not retaliate against the defendant. The Court finds that the plaintiff served the 14 Day Notice To Vacate for Non-Payment of Rent-Tenant at Will on the defendant on December 3, 2007 because she had not paid rent for the months of October 2007 through December 2007. The Court finds that the plaintiff had sufficient independent justification for serving the December 3, 2007 Notice To Quit, and would have in fact taken this action, in the same manner and at the same time the action was taken, even if the defendant had not contacted Minimum Housing within six (6) months prior to the date of the service of the Notice to Quit which forms the basis of this action. Accordingly, the Court finds that the defendant is not entitled to a defense to possession under G.L. c. 239, s.2A, or to damages under G.L. c. 186, s.18.

ORDER FOR JUDGMENT

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

1. Judgment enter for the plaintiff for damages for unpaid rent in the amount of $3,200.00, plus costs in the amount of $165.00, a total of $3,365.00.

2. Judgment enter for the defendant on her counterclaim for breach of the implied warranty of habitability in the amount of $1,244.54.

3. Judgment enter for the plaintiff on the defendant’s counterclaim under G.L. c. 239, s.2A and G.L. c. 186, s.18.

4. The foregoing orders for judgment paragraphs 1 through 3 result in a net judgment for damages for the plaintiff in the amount

of $1,955.46, plus costs in the amount of $165.00, a total of $2,120.46.

5. Judgment enter for the defendant for possession pursuant to the fifth paragraph of G.L. c. 239, s.8A, on the condition that within seven (7) days of her receipt of this ORDER, the defendant deposits with the Clerk of this Court, the sum of $1,955.46, payable to the plaintiff, plus costs in the amount of $165.00, a total of $2,120.46. If this deposit is made, the Clerk shall immediately release all funds held by the Court to the plaintiff. If the deposit is not made, judgment shall automatically enter in favor of the plaintiff for possession and damages in the amount of $1,955.46, plus costs in the amount of $165.00, a total of $2,120.46, on the next business day following the expiration of the tenth (10th) day from the date of this Order.

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[1] The Court finds that, since the defendant did not allow Minimum Housing access to re-inspect the premises on December 17, 2007, the defendant is not entitled to damages after December 17, 2007 for these conditions.

[2] The per diem rental amount is calculated as follows: $800.00 x 12 = $9,600.00 ? 365 = $26.30.

[3] ‘Clear and convincing’ evidence is that which ‘induces in the mind of the trier a reasonable belief that the facts 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).

End Of Decision

HOUSING COURT

Eric Vallas, PLAINTIFF v. Mark Rapoza, DEFENDANT

SOUTHEASTERN DIVISION

Docket # Docket No. 08-SP-00793

Parties: Eric Vallas, PLAINTIFF v. Mark Rapoza, DEFENDANT

Judge: /s/ ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: March 20, 2008

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

This is a summary process action in which the plaintiff seeks to recover possession of the premises from the defendant and damages for unpaid rent.

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

The defendant, Mark Rapoza, has resided at 713 Davol Street, 2A Front, Fall River, MA as a tenant at will since September 1, 2007. The plaintiff, Eric Vallas, is the owner of the premises and is the defendant’s landlord. The rent for the premises is $500.00 per month and is due on the first day of each month.

The plaintiff testified that the defendant has failed to pay the plaintiff any rent for the months of January 2008 through March 2008, and currently owes him a total of $1,500.00 in unpaid rent. The defendant testified that he has paid rent for the month of January 2008, that he believed the plaintiff would use the ‘down payment’ he gave to the prior owner at the inception of his tenancy for February 2008 rent, and that he is withholding the rent for the month of March 2008 because of conditions in the premises. The Court credits the plaintiff’s testimony on these issues, and finds that the defendant has failed to pay any rent to the plaintiff for the months of January 2008 through March 2008, and currently owes the plaintiff a total of $1,500.00 in unpaid rent.

The Court finds that, on December 13, 2007, the plaintiff served the defendant with a legally sufficient 30 Day Notice for Possession.

At trial, the defendant testified that there are defective conditions in the premises.

The defendant testified that he called the City of Fall River Board of Health in December 2007 because there is a hole in the wall where an electrical socket should be, the doors are broken, and he had no stove for nine (9) days.

The Court finds that, on December 13, 2007, the City of Fall River Board of Health (‘Board of Health’) inspected the premises and found the following conditions: ‘[1]. Electrical plug behind microwave not working. 2. Crank to bathroom window not working. 3. Outside entrance door latch not working. Also handle broken.

4. Closet door off track.’

The plaintiff testified that the hole in the wall where the defendant believes an electrical outlet should be is actually a ‘stash box’ or hiding place which a prior tenant installed, and that there are no wires in that area of the wall. He testified that the

defendant notified him in the first week of December 2007 that the stove was not working, that he ordered a new stove, and that it was delivered on December 13, 2007. The Court credits this testimony.

The Court finds that there was no credible evidence at trial that either the absence of an electrical outlet in the location which the defendant described, or the closet door which is off the track, are conditions which were serious, or that either of these conditions endangered the health or safety of the defendant, or that they diminished the fair rental value of the premises. Accordingly, the Court finds that the existence of these conditions did not constitute a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973).

The Court finds that the remaining conditions listed in the December 13, 2007 Board of Health Report, in the aggregate, and the lack of a stove in the premises for a period of nine (9) days in December 2007 are conditions which constitute material breaches of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). Id. The Court finds that the defendant is entitled to a defense to possession and to damages under G.L. c. 239, s.8A with respect to these conditions. The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises free of defects and the fair rental value of the premises during the period in which the defective conditions existed. The Court finds that the fair rental value of the premises free of defects is $500.00 per month. The Court finds that the defendant is entitled to the following rent abatements: (1) for the remaining conditions in the December 13, 2007 Board of Health Report for the 85 day period between December 13, 2007 and March 6, 2008, ten (10%) per cent; and (2) for the lack of a stove in the premises for a nine (9) day period in December 2007, twenty-five per cent (25%), calculated as follows: ($16.44/day1 x 10% = $1.64 x 85 = $139.40) + ($16.44/day x 25% = $4.11 x 9 = $36.99) = $176.39.

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 enter for the plaintiff for damages for unpaid rent in the amount of $1,500.00, plus costs in the amount of $170.00, a total of $1,670.00.

2. Judgment enter for the defendant on his counterclaim for breach of the implied warranty of habitability in the amount of $176.39.

3. The foregoing orders for judgment paragraphs 1 and 2 result in a net judgment for damages for the plaintiff in the amount of $1,323.61, plus costs in the amount of $170.00, a total of $1,493.61.

is not made, judgment shall automatically enter in favor of the plaintiff for possession and damages in the amount of $1,323.61, plus costs in the amount of $170.00, a total of $1,493.61, on the next business day following the expiration of the tenth (10th) day from the date of this Order.

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[1] The per diem rental amount is calculated as follows:$500.00 x 12 = $6,000.00 ? 365 = $16.44.

End Of Decision

HOUSING COURT

William H. Walsh, Jr. and Heather Walsh v. Douglas Buckley and Barbara Buckley

SOUTHEASTERN DIVISION

Docket # 06-CV-00173

Parties: William H. Walsh, Jr. and Heather Walsh v. Douglas Buckley and Barbara Buckley

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: March 18, 2008

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

This is a civil action in which the plaintiffs seek to recover damages from the defendants for breach of contract. The defendant filed a written answer and counterclaims seeking to recover damages for breach of the implied warranty of habitability and violations of G.L. c. 186, s.14, G.L. c. 186, s.15F, and G.L. c. 186, s.15B. The plaintiffs did not appear for trial and their complaint was dismissed with prejudice and without costs. The defendants appeared for trial, and the plaintiffs were defaulted on the defendant’s counterclaims. At trial, the defendants, through counsel, waived their claim for breach of the implied warranty of habitability.

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

The plaintiffs, William H. Walsh, Jr. and Heather Walsh, are the owners of a duplex residence located at 52-54 Avon Street, Taunton, MA. The defendants, Douglas Buckley and Barbara Buckley, resided in 54 Avon Street, Taunton, MA (“the premises”) from February 1, 2003 through July 9, 2006 as tenants of the plaintiffs.

The defendant Barbara Buckley (“Ms. Buckley”) testified that the defendants occupied the premises under a written lease from February 1, 2003 through January 31, 2004, and as tenants at will thereafter. She testified that the monthly rent for the premises was $1,000.00 at the inception of the tenancy, that the monthly rent was increased to $1,100.00 effective February 1, 2004, and that rent is due on the first day of each month. The Court credits this testimony.

Ms. Buckley testified that the defendants gave the plaintiffs a security deposit in the total amount of $600.00 by paying the plaintiffs $500.00 on February 1, 2003, $50.00 on March 1, 2003 and $50.00 on April 1, 2003. She testified that she has no knowledge whether the plaintiffs placed the security deposit into a separate bank account, that the plaintiffs have never paid the defendants any interest on the security deposit, and that the plaintiffs did not return the security deposit to the defendants. The Court credits this testimony.

The Court finds that the plaintiffs placed the defendants’ security deposit in checking account No. 0078103631 at North Easton Savings Bank, in the names of “Heather E. Walsh or William H. Walsh, Jr.” The Court finds that, on June 1, 2005, this account was overdrawn in the amount of $38.38.

Ms. Buckley testified that, on June 14, 2006, she told the plaintiff Heather Walsh that the defendants had purchased a home and would be vacating the premises. She testified that, on July 9, 2006, she was at the premises to move some of her possessions out, and had gone to the 52 Avon Street side of the duplex to pick up her child. She testified that, at this time, the plaintiffs drove up to the premises and blocked the driveway with their recreational vehicle. She testified that the plaintiff William H. Walsh, Jr. (“Mr. Walsh”) asked her for the keys to the premises, and told her that she had no right to be in the premises because she had not paid rent for the month of July 2006. She testified that she told Mr. Walsh that the defendants were willing to pay the plaintiffs $400.00 and allow the plaintiffs to keep the security deposit in order to be able to finish moving out of the premises. She testified that Mr. Walsh refused this offer, and threatened to call the police, and have her arrested for trespassing and breaking and entering. She testified that, because of this incident, the defendants did not return to the

premises again, and that, ten (10) days later, they received a letter from the plaintiffs’ attorney notifying them that the plaintiffs had changed the locks to the premises, and notifying them to contact the plaintiffs if they wanted to enter the premises. She testified that the defendants were never able to retrieve some of their possessions, including two (2) air conditioners, bunk beds, children’s clothes, dressers and a drawer that fits under the bunk beds. She testified that, at an unspecified time subsequent to receiving the letter from the plaintiffs’ attorney, she saw a dumpster at the premises, and saw the defendants’ possessions in the dumpster. The Court credits this testimony.

G.L. c. 186, s.15B(3)(b) provides, in pertinent part: “A lessor of residential real property who holds a security deposit pursuant to this section for a period of one year or longer from the commencement of the term of the tenancy shall, beginning with the first day of the tenancy, pay interest at the rate of five per cent per year, or other such lesser amount of interest as has been received from the bank where the deposit has been held, payable to the tenant at the end of each year of the tenancy…At the end of each year of a tenancy, such lessor shall give or send to the tenant from whom a security deposit has been received a statement which shall indicate the name and address of the bank in which the security deposit has been placed, the amount of the deposit, the account number, and the amount of interest payable by such lessor to the tenant. The lessor shall at the same time give or send to each such tenant the interest which is due or shall include with the statement required by this clause a notification that the tenant may deduct the interest from the tenant’s next rental payment. If, after thirty days from the end of each year of the tenancy, the tenant has not received such notice or payment, the tenant may deduct from his next rent payment the interest due.”

G.L. c. 186, s.15B(4) provides, in pertinent part: “The lessor shall, within thirty days after the termination of occupancy under a tenancy-at-will or the end of the tenancy as specified in a valid written lease agreement, return to the tenant the security deposit or any balance thereof…”

G.L. c. 186, s.15B(6) provides, in pertinent part: “The lessor shall forfeit his right to retain any portion of the security deposit for any reason, or, in any action by a tenant to recover a security deposit, to counterclaim for any damages to the premises if he: (a) fails to deposit such funds in an account as required by subsection (3).”

tenant is entitled plus interest at the rate of five per cent from the date when such payment became due, together with court costs and reasonable attorney’s fees.”

The Court finds that the plaintiffs have violated the provisions of G.L. c. 186, s.15B(3)(a), (3)(b), (4), and (6)(a) in the following respects: They did not place the security deposit into an interest-bearing escrow account, as required by G.L. c. 186, s.15B(3)(a), did not pay the defendants any interest on the security deposit, did not return the security deposit to the defendants thirty (30) days after the termination of their tenancy, nor did they account to them for their security deposit. The Court finds that the filing of the answer and counterclaims in this action on September 7, 2006 constitutes a demand for the return of the security deposit, and finds that the defendants were entitled to the immediate return of the security deposit as of that date.

The Court finds that the defendants are entitled to recover treble damages pursuant to the provisions of G.L. c. 186, s.15B(7), plus interest at the rate of 5% per year on the $500.00 paid on February 1, 2003 for the 1,873 day period between February 1, 2003 and March 18, 2008, plus interest at the rate of 5% per year on the $50.00 paid on March 1, 2003 for the 1,845 day period between March 1, 2003 and March 18, 2008, plus interest at the rate of 5% per year on the $50.00 paid on April 1, 2003 for the 1,814 day period between April 1, 2003 and March 18, 2008, calculated as follows: ($600.00 x 3 = $1,800.00) + ($.07/day[1] x 1,873 = $131.11) + ($.007/day[2] x 1,845 = $12.92) + ($.007/day[3] x 1,814 = $12.70) = $1,956.73.

G.L. c. 186, s.14 provides, in pertinent part: “Any lessor or landlord of any building or part thereof occupied for dwelling purposes… who directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant…shall…be liable for actual and consequential damages, or three month’s rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee, all of which may be applied in setoff to or in recoupment against any claim for rent owed or owing…”

While the statute does not require that the landlord’s conduct be intentional, Simon v. Solomon, 386 Mass. 91 (1983), it does require that the landlord’s conduct cause a serious interference with the tenant’s quiet enjoyment. Doe v. New Bedford Housing Authority, 417 Mass. 263, 284-285 (1994); Lowery v. Robinson, 13 Mass.App.Ct. 982 (1982). “The covenant of quiet enjoyment protects a tenant’s right to freedom from serious interference with his tenancy-acts or omissions that impair the character and value of the leased premises. (citations omitted).” Doe v. New Bedford Housing Authority, supra at 285. The Court finds that the actions of the plaintiff William H. Walsh, Jr. on July 9, 2003 in threatening to call the police when the defendant Barbara Buckley was at the premises for the purpose of moving some of her possessions, as well as the plaintiffs’ actions ten (10) days later in changing the locks at the premises, constitute serious interferences with the defendants’ quiet enjoyment of the premises. Accordingly, the Court finds that the defendants are entitled to damages under G.L. c. 186, s.14 in the amount of $3,300.00, which represents three (3) months rent, plus attorney’s fees, based on this claim.

G.L. c. 186, s.15F provides, in pertinent part: “…If a tenant is removed from the premises or excluded therefrom by the landlord or his agent except pursuant to a valid court order, the tenant may

recover possession or terminate the rental agreement and, in either case, recover three months’ rent or three times the damages sustained by him, and the cost of suit, including reasonable attorney’s fees.”

The defendants are not entitled to recover cumulative damages arising from the same facts under every theory of recovery, but they are entitled to recover damages under the theory which results in the largest award of damages. Wolfberg v. Hunter, 385 Mass. 390 (1982). The defendants’ interference with quiet enjoyment claim and their claim under G.L. c. 186, s.15F arise from the same set of facts and involve the same damages. Since each of these statutes provides the defendant with the same recovery, the Court will award damages for these breaches under G.L. c. 186, s.14, and will award reasonable attorney’s fees under each statute.

Following a trial on the merits of this action, the defendants prevailed on their counterclaims under G.L. c. 186, s.15B, G.L. c. 186, s.14 and G.L. c. 186, s.15F, each of which provides for the recovery of reasonable attorney’s fees.

The Court has reviewed the Affidavit submitted by Attorney Lawrence Rose, who was the defendants’ trial counsel in this action. The Court had the opportunity to observe Mr. Rose during the trial of this action. While the legal issues were not complex, there were significant factual disputes. Mr. Rose represented his clients skillfully, and his clients recovered a judgment on their counterclaims under G.L. c. 186, s.15B, G.L. c. 186, s.14 and G.L. c. 186, s.15F. The Court considers Mr. Rose’s hourly rate of $200.00 to be fair and reasonable given his experience. His rate is within the range of hourly rates charged by attorneys of similar experience in the Taunton area.

In his Affidavit, Mr. Rose states that he spent a total of 25.52 hours in this action for a total fee of $5,104.00 through March 7, 2008. The Court notes that the trial of this action on March 10, 2008 took approximately 1.5 hours, and will add those hours to Mr. Rose’s fee for a total of 27.02 hours, and a total fee of $5,404.00. The Court finds that 13.5 hours of Mr. Rose’s time were reasonably attributable to the counterclaims, and represented time for which he is entitled to compensation, in the amount of $2,700.00. The Court awards Mr. Rose reasonable attorney’s fees in the amount of $2,700.00, to be paid by the plaintiffs.

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. The complaint is dismissed with prejudice and without costs.

2. Judgment enter for the defendants on their counterclaim under G.L. c. 186, s.15B in the amount of $1,956.73.

3. Judgment enter for the defendants on their counterclaim under G.L. c. 186, s.14 in the amount of $3,300.00.

4. The foregoing orders for judgment paragraphs 2 and 3 result in a net judgment for the defendants for damages in the amount of $5,256.73

5. Execution issue thirty (30) days from the date that judgment enters.

6. The plaintiffs shall pay attorney’s fees in the amount of $2,700.00 to defendants’ counsel no later than thirty (30) days after the date that judgment enters.

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[1] $500.00 x 5% = $25.00 ? 365 = $.07.

[2] $50.00 x 5% = $2.50 ? 365 = $.007.

[3] $50.00 x 5% = $2.50 ? 365 = $.007.

End Of Decision

HOUSING COURT

Jean Dupoux v. Jennifer Mann and Antonio Fernandes

Docket # Docket No. 08-SP-01229

Parties: Jean Dupoux v. Jennifer Mann and Antonio Fernandes

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: May 13, 2008

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

This is a summary process action in which the plaintiff seeks to recover possession of the premises from the defendants and damages for unpaid rent. The defendant Antonio Fernandes [1] did not appear for trial and was defaulted. The defendant Jennifer Mann appeared for trial and testified.

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

The defendants, Jennifer Mann and Antonio Fernandes, have resided at 18 Augustus St., #3rd Fl. (3), Fall River, MA as tenants at will since October 14, 2007. The plaintiff, Jean Dupoux, is the owner of the premises and is the defendants’ landlord. The rent for the premises is $700.00 per month and is due on the fifteenth day of each month.

The defendant Jennifer Mann testified that the defendants paid the plaintiff $1,000.00 on October 14, 2007, consisting of first month’s rent and last month’s rent, with a $400.00 credit for the defendants’ repairing the cracked bathroom ceiling and the kitchen floor, and buying a refrigerator for the premises. She testified that, on October 26, 2007, the defendants paid the plaintiff rent for the month beginning November 15, 2007. She testified that the defendants withheld rent beginning in December 2007 because the plaintiff did not make repairs to the premises. The plaintiff testified that the defendants did not pay rent for the month beginning September 15, 2007 until September 17, 2007, and that, on October 26, 2007, the receipt he gave the defendants should have stated that the money he received was half for October 2007 and half for November 2007. He testified that he has not received any rent from the defendants since October 26, 2007. The Court credits the plaintiff’s testimony on these issues, and finds that the defendants have failed to pay the plaintiff any rent for the months beginning December 15, 2007 through April 15, 2007, owe a balance of $350.00 for the month beginning November 15, 2007, and currently owe the plaintiff a total of $3,150.00 in unpaid rent.

The Court finds that, on December 7, 2007, the plaintiff served the defendants with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent [2].

At trial, the defendant Jennifer Mann testified that the defendants withheld their rent due to defective conditions in the premises.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant Jennifer Mann testified that, at the inception of the defendants’ tenancy, the water in the premises was “rusty,” and that she notified the plaintiff of this condition. She testified that the plaintiff told her to let the water run. She testified that she notified the plaintiff one (1) month later that the problem still existed, and that he looked at the water, but did not return to make any repairs. She testified that she complained to the plaintiff about the water one (1) more time, and notified him that she would contact the City of Fall River Department of Public Health, Division of Minimum Housing Standards (“Minimum Housing”) if the problem was

not fixed. She testified that, at some unspecified time in January 2008, the hot water tank in the basement of the building in which the premises is located broke and water flooded the basement. She testified that she notified the plaintiff of this problem, but that he did not make any repairs. She testified that Minimum Housing inspected the premises in February 2008, and that the plaintiff did not make repairs until mid-March 2008. The plaintiff testified that, when the defendants notified him of the condition of the water, he informed them that it is City water, that he has not had any problems with the water in other apartments in the building, and that letting the water run should solve the problem. He testified that he had no notice of any of the conditions in the Minimum Housing Report except the railings until he received the Report. He testified that he replaced the hot water heater in the first week of March 2008. The Court credits the defendant Jennifer Mann’s testimony on these issues, with the exception of the issues of when the hot water tank was replaced and when the plaintiff received notice of the conditions in the February 4, 2008 Minimum Housing Report. The Court credits the plaintiff’s testimony on these issues. The Court finds that there was no credible evidence at trial that the plaintiff knew or should have known of any of the conditions listed in the February 4, 2008 Minimum Housing Report until he received the Report.

The Court finds that, on February 4, 2008, Minimum Housing inspected the premises and found the following conditions: “1. No hot water in apartment. Tenant claims water rusty and now doesn’t have any water. Owner to supply new tank. 2. Water building up in cellar. Hazard. 3. Trash and debris in yard. Also 1st floor hallway. 4. Light in hallways 1st and 2nd floors not working. 5. Not enough of trash barrels with covers for tenants. Owner to supply sufficient amount. 6. Windows needs repairing. Double pane for 1st room. Broken glass sticking out. 7. Screens ripped and missing throughout building including hallways. 8. Apartment door to be changed. Illegal door. (Hollow). 9. Owner’s name, address and contact # to be posted in hallway 1st Fl. 10. Railings missing to stairways in hallways. 11. Door to apartment-frame needs to be repaired. 12. Paint peeling to bathroom ceiling & cracked. 13. No covers to electrical box on wall above sink. Wires sticking out. 14. Bathroom sink leaking underneath. 15. No smoke alarm in apartment.”

The Court finds that the presence of rusty water in the premises, the broken hot water tank, and the remaining conditions listed in the Minimum Housing Report are conditions which constitute material breaches of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). Accordingly, the Court finds that the defendant Jennifer Mann is entitled to a defense to possession under G.L. c. 239, s.8A with respect to the presence of rusty water in the premises. The Court finds that the defendant Jennifer Mann is not entitled to a defense to possession based on the remaining conditions, since she was already in arrears in her rent at the time these conditions arose. The Court finds that the defendant Jennifer Mann is entitled to damages under G.L. c. 239, s.8A based on all of these conditions.

defendant Jennifer Mann’s tenancy is $700.00 per month. The Court finds that the defendant Jennifer Mann is entitled to the following rent abatements: (1) for the rusty water in the premises for the 154 day period between October 14, 2007 and March 15, 2008, twenty-five per cent (25%); (2) for the lack of hot water in the premises for the 54 day period between January 15, 2008 and March 8, 2008 [3], seventy-five per cent, (75%); and (3) for the remaining conditions in the February 4, 2008 Board of Health Report, in the aggregate, for the 41 day period between February 4, 2008 and March 15, 2008, twenty per cent, (20%), calculated as follows: ($23.01/day [4] x 25% = $5.75 x 154 = $885.50) + ($23.01/day x 75% = $17.26 x 54 = $932.04) + ($23.01/day x 20% = $4.60 x 41 = $188.60) = $2,006.14.

ORDER FOR JUDGMENT

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

1. Judgment enter for the plaintiff as to the defendant Jennifer Mann for damages for unpaid rent in the amount of $3,150.00, plus costs in the amount of $219.20, a total of $3,369.20

2. Judgment enter for the defendant Jennifer Mann on her counterclaim for breach of the implied warranty of habitability in the amount of $2,006.14.

3. The foregoing order for judgment paragraphs 1 and 2 result in a net judgment for the plaintiff against the defendant Jennifer Mann for damages in the amount of $1,143.86, plus costs in the amount of $219.20, a total of $1,363.06.

4. Judgment enter for the defendant Jennifer Mann for possession pursuant to the fifth paragraph of G.L. c. 239, s.8A, on the condition that within seven (7) days of her receipt of this ORDER, the defendant Jennifer Mann deposits with the Clerk of this Court, the sum of $1,143.86, plus costs in the amount of $219.20, a total of $1,363.06, in the form of cash, certified check, cashier’s check, or money order, payable to the plaintiff. If this deposit is made, the Clerk shall immediately release all funds held by the Court to the plaintiff. If the deposit is not made, judgment shall automatically enter in favor of the plaintiff against the defendant Jennifer Mann for possession and damages in the amount of $1,143.86, plus costs in the amount of $219.20, a total of $1,363.06, on the next business day following the expiration of the tenth (10th) day from the date of this Order.

cc: Jean Dupoux

Jennifer Mann

Antonio Fernandes

Docket No. 08-SP-01229

Jean Dupoux vs. Jennifer Mann and Antonio Fernandes

JUDGMENT

Judgment for the Plaintiff as to Defendant Jennifer Mann, for

unpaid rent of $3,150.00, plus costs of $219.20, for a total of $3,369.20.

Judgment for the Defendant Jennifer Mann on her counterclaim for breach of the implied warranty of habitability, in the sum of $2,006.14; resulting in a net judgment to Plaintiff of $1,363.06 as is further set forth in paragraph 3 of the Court’s Order for Judgment.

Judgment for the Defendant Jennifer Mann for possession, but contingent upon her timely compliance with the payment provisions contained in paragraph 4 of the Court’s Order for Judgment. Failing same, judgment shall automatically enter for Plaintiff for possession, damages of $1,143.86, plus costs of $219.20, for a total of $1,363.06, as is further provided in said paragraph 4.

Accordingly, judgment enters at 10:00 a.m. this 14th day of May 2008.

/s/MARK R. JEFFRIES

CLERK MAGISTRATE

May 14, 2008

Docket #08-SP-01229

Jean Dupoux

P.O. Box 1372

Brockton, MA 02303

Jennifer Mann

18 Augustus St

#3 Fl. (3)

Fall River, MA 02721

Antonio Fernandes

18 Augustus St

#3rd Fl (3)

Fall River, MA 02721

————————-

[1] At trial, the defendant Jennifer Mann testified that the name of the defendant identified in the Summary Process Summons and Complaint as “Antonio Doe” is “Antonio Fernandes”. Pursuant to M.R.Civ.P. 15(b), the Court, sua sponte, hereby amends the Summary Process Summons and Complaint to change “Antonio Doe” to “Antonio Fernandes”.

[2] The Court, sua sponte, amends the Notice To Quit to list the defendants’ names as “Antonio Fernandes” and “Jennifer Mann”.

[3] Since there was no testimony at trial as to the exact date in January 2008 on which the hot water tank broke, or the exact date in the first week of March 2008 on which the hot water tank was replaced, the Court will use January 15, 2008 and March 8, 2008 as

the operative dates.

[4] The per diem rental amount is calculated as follows:$700.00 x 12 = $8,400.00 ? 365 = $23.01.

End Of Decision

HOUSING COURT

Jennifer Leonardo v. Norman Chadwick

Docket # Docket No. 08-SP-01446

Parties: Jennifer Leonardo v. Norman Chadwick

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: May 22, 2008

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

This is a summary process action in which the plaintiff seeks to recover possession of the premises from the defendant and damages for unpaid rent.

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

The defendant, Norman Chadwick, has resided at 182 June Street, 1st floor, Fall River, MA under a written tenancy at will agreement since November 11, 2007. The plaintiff, Jennifer Leonardo, is the owner of the premises and is the defendant’s landlord. The rent for the premises is $825.00 per month. The plaintiff testified that the rent is due on the first day of each month, and the defendant testified that the rent is due on the third day of each month. The Court finds that the written tenancy at will agreement provides that rent is due on the third day of each month. The defendant has failed to pay the plaintiff any rent for the months of March 2008 and April 2008 and currently owes the plaintiff a total of $1,650.00 in unpaid rent.

The Court finds that, on March 25, 2008, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Quit for Rent.

At trial, the defendant testified that there are defective conditions in the premises.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant testified that, at some unspecified time during his tenancy, he sent the plaintiff a letter with respect to problems with the electricity in the premises. He testified that all of the lights go off downstairs when he vacuums. He testified that, in March 2008, the plaintiff came to the premises to get rent, talked to the tenants on the second floor of the building in which the premises is located, came back downstairs and yelled at him not to use the electricity. He also testified that, in April 2008, the plaintiff bent over the dryer prong so that he could not use the dryer. The plaintiff testified that she did not tell the defendant not to use electricity, and that she has never received a complaint about the conditions in the premises from any tenant. She testified that the building in which the premises is located was built in 1890, and that it is drafty. The Court credits the plaintiff’s testimony on these issues.

The defendant testified that he contacted the Fall River Department of Inspectional Services, Division of Minimum Housing Standards (“Minimum Housing”) with respect to conditions in the premises. The Court credits this testimony.

The Court finds that, on April 15, 2008, Minimum Housing inspected the premises and found the following conditions: “Windows drafty throughout apartment. Need weatherization; Paint peeling to bedroom ceiling; Wall behind toilet pipe peeling; Refrigerator with doors on porch. (Safety hazard); Electrical switch for light in pantry not working; Cellar has debris. Needs cleaning; Note: Owner must supply facility for electric. (Only one meter-owner’s).”

The plaintiff testified that she has never received the April 15, 2008 Minimum Housing Report. She also testified that electricity is included in the defendant’s rent. The Court credits this testimony.

The Court finds that the drafty windows in the premises is a condition which constitutes a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that there was no credible evidence at trial that the plaintiff knew or should have known of any of the conditions listed in the April 15, 2008 Minimum Housing Report except for the drafty windows until trial. The Court finds that the plaintiff knew of the existence of the drafty windows at the inception of the defendant’s tenancy. Accordingly, the Court finds that the defendant is entitled to a defense to possession and to damages under G.L. c. 239, s.8A based on the drafty windows only.

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 enter for the plaintiff for damages for unpaid rent in the amount of $1,650.00, plus costs in the amount of $180.00, a total of $1,830.00.

2. Judgment enter for the defendant on his counterclaim for breach of the implied warranty of habitability in the amount of $937.66.

3. The foregoing order for judgment paragraphs 1 and 2 result in a net judgment for the plaintiff for damages in the amount of $712.34, plus costs in the amount of $180.00, a total of $892.34.

4. Judgment enter for the defendant for possession pursuant to the fifth paragraph of G.L. c. 239, s.8A, on the condition that within seven (7) days of his receipt of this ORDER, the defendant deposits with the Clerk of this Court, the sum of $712.34, payable to the plaintiff, plus costs in the amount of $180.00, a total of $892.34. If this deposit is made, the Clerk shall immediately release all funds held by the Court to the plaintiff. If the deposit is not made, judgment shall automatically enter in favor of the plaintiff for possession and damages in the amount of $712.34, plus costs in the amount of $180.00, a total of $892.34, on the next business day following the expiration of the tenth (10th) day from the date of this Order

cc: Jennifer Leonardo

Norman Chadwick

Docket No. 08-SP-01446

Jennifer Leonardo vs.Norman Chadwick

JUDGMENT

Judgment for the Plaintiff for unpaid rent in the sum of $1,650.00, plus costs of $180.00, for a total of $1,830.00.

Judgment for the Defendant on his counterclaim for breach of the implied warranty of habitability in the sum of $937.66, resulting in a net judgment for the Plaintiff of $892.34 as further provided in paragraphs 2 and 3 of the Court’s Order for Judgment.

Judgment for the Defendant for possession, but contingent upon his timely compliance with the payment provisions contained in paragraph 4 of the Court’s Order for Judgment. Failing same, judgment shall automatically enter for Plaintiff for possession, damages of $712.34, plus costs of $180.00, for a total of $892.34, as is further provided in said paragraph 4.

Accordingly, judgment enters at 10:00 a.m. this 23rd day of May 2008.

/s/MARK R. JEFFRIES

CLERK MAGISTRATE

May 23, 2008

Docket #08-SP-01446

Jennifer Leonardo

36 Chabot St

Westport, MA 02790

Norman Chadwick

182 June St

1st Fl

Fall River, MA 02720

————————-

[1] The per diem rental amount is calculated as follows:$825.00 x 12 = $9,900.00 ? 365 = $27.12.

End Of Decision

HOUSING COURT

Emmanuel Ugocha v. Jennifer L. Banks

Docket # Docket No. 08-SP-01273

Parties: Emmanuel Ugocha v. Jennifer L. Banks

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: May 15, 2008

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

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

The defendant, Jennifer L. Banks, has resided at 295 Belmont St., Apt. #2W, Brockton, MA as a tenant under a lease since February 2008. The plaintiff, Emmanuel Ugocha, is the owner of the premises and is the defendant’s landlord. The rent for the premises is $800.00 per month and is due on the first day of each month. The defendant has failed to pay the plaintiff any rent for the months of March 2008 and April 2008, and currently owes the plaintiff a total of $1,600.00 in unpaid rent.

The Court finds that, on March 7, 2008, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent With A Lease.

The defendant filed a written answer and counterclaims based on conditions in the premises and violations of G.L. c. 186, s.14, G.L. c. 239, s.2A and G.L. c. 186, s.18.

breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant testified that, on January 2, 2008, she gave the plaintiff’s agent a deposit of $100.00, and that she agreed to pay the plaintiff a total of $1,600.00 as first month’s rent and last month’s rent by paying him $400.00 per week through February 1, 2008. She testified that she paid the plaintiff’s agent all but $300.00 of the $1,600.00, and that he advised her not to pay the remaining $300.00 towards the last month’s rent until the repairs to the premises had been completed. She testified that the plaintiff informed her that the repairs would be completed by February 1, 2008, but that, on that date, no door had been installed at the premises, and not all repairs had been completed. She testified that the contractors informed her that they would be finished by February 2, 2008. She testified that, on that date, she observed that the door was up, and that she got the key to the premises and began to move in. She testified that, on February 3, 2008, when she arrived at the premises, she observed that the top lock on the door was missing, and that her possessions, including her laptop and a Coach purse, had been stolen. She testified that she informed the plaintiff of the theft, and that he promised to reimburse her, but has not done so. The plaintiff testified that, in January 2008, he informed the defendant that the door was broken, and that he would use the first month’s rent to make the necessary repairs to the premises. He testified that, on February 1, 2008, he observed that the door was installed, that the defendant’s possessions were in the premises, and that the top lock on the door had not been installed, but the hole was too small to open the bottom lock. He testified that he “felt bad” when the defendant told him of the theft, and that he was upset with the contractor. He testified that he was willing to work with the defendant about the theft, but that she became belligerent, so he did not. The Court credits the parties’ testimony on these issues. The defendant testified that there was no heat and hot water in the premises at the inception of her tenancy, that she informed the plaintiff that the gas company needed him to identify the meter for the premises, but that he did not do so. She testified that, on February 19, 2008, she contacted the City of Brockton Board of Health (“Board of Health”), and that the Board of Health inspected the premises on February 20, 2008. She testified that, on February 20, 2008, the plaintiff identified the defendant’s meter for the gas company, and that the gas company then discovered that there was an illegal connection in the premises. She testified that the plaintiff engaged the services of a plumber to repair the illegal connection, and that, on February 23, 2008, the gas company determined that the stove in the premises was leaking gas. She testified that the plaintiff replaced the stove, that she did not have heat or hot water until February 29, 2008.

The Court finds that the Board of Health inspected the premises on February 19, 2008 and found the following conditions: “Provide

heat as required by 105 CMR 410.200 and 410.201 immediately…Immediately provide working stove and oven…Provide hot water as required by 105 CMR 410.190 immediately…Immediately install, repair or replace smoke detectors in dwelling unit; install, repair or replace carbon monoxide alarms in dwelling unit…repair ‘hard wired’ smoke detector system.” The Court finds that the Board of Health inspected the premises on March 12, 2008 and, on March 18, 2008, issued a Report that the following conditions existed in the premises: “Kitchen: Provide sufficient water pressure to sink; Rear bedroom: Provide cover for ceiling lamp; Pantry: Provide cover for ceiling lamp; Living room: Repair windows to open and close properly; Repair passage set; Provide screen; Front bedroom: Provide window to open and close properly; Bathroom: Replace stained ceiling tiles; Repair around bathtub; Caulk around bathtub; General: Repair outside front steps; Provide keys for all doors that tenant has access to; Provide carbon monoxide alarm; Provide working smoke detectors in dwelling unit; Repair hard wired smoke detectors.”

The Court finds that the lack of heat and hot water in the premises, the defective stove in the premises, and the remaining conditions listed in the February 20, 2008 and March 18, 2008 Board of Health Reports are conditions which constitute material breaches of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that the plaintiff knew or should have known of the existence of the conditions listed in the February 20, 2008 Board of Health Report at the inception of the defendant’s tenancy. See McKenna v. Begin I, 3 Mass.App.Ct. 168 (1975). Accordingly, the Court finds that the defendant is entitled to a defense to possession and to damages under G.L. c. 239, s.8A with respect to the conditions which existed at the inception of her tenancy, i.e., those listed in the February 20, 2008 Board of Health Report.

The Court finds that there was no evidence at trial that the plaintiff knew or should have known of the existence of the new conditions listed in the March 18, 1008 Board of Health Report prior to receiving it. The Court finds that the defendant is not entitled to a defense to possession under G.L. c. 239, s.8A with respect to the new conditions listed in the March 18, 2008 Board of Health Report, since the defendant was already in arrears in her rent at the time the plaintiff was notified of the existence of these conditions. The Court finds that the defendant is entitled to damages under G.L. c. 239, s.8A based on these conditions.

($26.30/day [2] x 25% = $6.58 x 54 = $355.32) + ($26.30/day x 15% = $3.95 x 37 = $146.15) = $1,301.47.

While G.L. c. 186, s.14 does not require that the landlord’s conduct be intentional, Simon v. Solomon, 386 Mass. 91 (1983), it does require that the landlord’s conduct cause a serious interference with the tenant’s quiet enjoyment. Doe v. New Bedford Housing Authority, 417 Mass. 263, 284-285 (1994); Lowery v. Robinson, 13 Mass.App.Ct. 982 (1982). “The covenant of quiet enjoyment protects a tenant’s right to freedom from serious interference with his tenancy acts or omissions that impair the character and value of the leased premises. (citations omitted).” Doe v. New Bedford Housing Authority, supra at 285.

The Court finds that the lack of a secure entry door to the premises which resulted in the theft of some of the defendant’s possessions from the premises on February 2, 2008 constitutes a serious interference with the defendant’s quiet enjoyment of the premises. The Court finds that the defendant is entitled to statutory damages under G.L. c. 186, s.14 in the amount of $2,400.00, which represents three (3) months rent, based on this claim.

G.L. c. 239, s.2A provides, in pertinent part: “It shall be a defense to an action for summary process that such action or the preceding action of terminating the tenant’s tenancy, was taken against the tenant for the tenant’s act of commencing, proceeding with, or obtaining relief in any judicial or administrative action the purpose of which action was to obtain damages under or otherwise enforce, any federal, state or local law, regulation, by-law, or ordinance, which has as its objective the regulation of residential premises, or…reporting a violation or suspected violation of law as provided in section eighteen of chapter one hundred and eighty-six….The commencement of such 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 commenced, proceeded with or obtained relief in such action, (or)..made such report..shall create a rebuttable presumption that such summary process is a reprisal against the tenant for engaging in such activities…Such presumption may be rebutted only by clear and convincing evidence [3] that such action was not a reprisal against the tenant, and that the plaintiff 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, even if the tenant had not…engaged in such activity.”

health or, in the city of Boston, to the commissioner of housing inspection or to any other board having as its objective the regulation of residential premises; or reporting or complaining of such violation or a suspected violation in writing to the landlord or to the agent of the landlord…shall be liable for damages which shall not be less than one month’s rent or more than three months’ rent, or the actual damages sustained by the tenant, whichever is greater, and the costs of the suit, including a reasonable attorney’s fee. The receipt of any notice of termination of tenancy except for non-payment of rent or, of increase in rent or, of any substantial alteration in the terms of tenancy within six months after the tenant has…made such report or complaint…shall create a rebuttable presumption that such notice or other action is a reprisal against the tenant for engaging in such activities. Such presumption shall be rebutted only by clear and convincing evidence that such person’s action was not a reprisal against the tenant and that such person had sufficient independent justification for taking such action, and would have in fact take such action, in the same manner and at the same time the action was taken, regardless of tenant engaging in, or the belief that tenants had engaged in, activities protected under this section.”

The defendant testified that, on March 1, 2008, she notified the plaintiff that she was withholding her rent until the repairs listed in the February 20, 2008 Board of Health Report had been made, and that, on March 7, 2008, the plaintiff served her with a 14 Day Notice To Quit for Non-Payment of Rent. The Court credits this testimony.

The Court finds that, on March 7, 2008, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent. The Court finds that the defendant engaged in statutorily protected activity within six (6) months prior to the date on which the Notice To Quit was served on her, and, accordingly, is entitled to the statutory presumption of retaliation under G.L. c. 239, s.2A. The Court finds, on the facts of this case, that the plaintiff has failed to establish by clear and convincing evidence that he did not retaliate against the defendant. The Court finds that it is a reasonable inference that the plaintiff decided to terminate the defendant’s tenancy because she had called the Brockton Board of Health on February 19, 2008, and because she had informed him on March 1, 2008 that she was withholding her rent until he completed the repairs listed in the February 20, 2008 Board of Health Report. The Court finds that the plaintiff did not have sufficient independent justification for serving the March 7, 2008 Notice To Quit, and finds that he took this action in reprisal for the defendant’s actions in exercising her statutory rights on February 19, 2008 and on March 1, 2008. Accordingly, the Court finds that the defendant is entitled to a defense to possession under G.L. c. 239, s.2A.

The Court finds that, since the defendant’s tenancy was terminated for non-payment of rent, she is not entitled to the statutory presumption of retaliation under G.L. c. 186, s.18. The Court finds, on the facts of this case, that the defendant has established by a preponderance of the evidence that the plaintiff retaliated against her. Accordingly, the Court finds that the defendant is entitled to damages under G.L. c. 186, s.18 in the amount of $2,400.00, based on this claim.

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 enter for the defendant for possession of the premises under G.L. c. 239, s.2A.

2. Judgment enter for the plaintiff for damages for unpaid rent in the amount of $1,600.00, plus costs in the amount of $167.50, a total of $1,767.50.

3. Judgment enter for the defendant on her counterclaim for breach of the implied warranty of habitability in the amount of $1,301.47.

4. Judgment enter for the defendant on her counterclaim under G.L. c. 186, s.14 in the amount of $2,400.00.

5. Judgment enter for the defendant on her counterclaim under G.L. c. 186, s.18 in the amount of $2,400.00.

6. The foregoing order for judgment paragraphs 2 through 5 result in a net judgment for the defendant for damages in the amount of $4,333.97.

7. Execution issue ten (10) days after the date that judgment enters.

cc: Emmanuel Ugocha

Jennifer L. Banks

Docket No. 08-SP-01273

Emmanuel Ugocha vs. Jennifer L. Banks

JUDGMENT

Judgment for the Defendant for possession, pursuant to M.G.L. Chapter 239, s.2A.

Judgment for the Plaintiff for unpaid rent in the sum of $1,600.00, plus costs of $167.50, for a total of $1,767.50.

Combined counterclaim damages for the Defendant in the sum of $6,101.47, resulting in a net judgment to said Defendant of $4,333.97, as more specifically set forth in paragraphs 3-6 of the Court’s Order for Judgment.

Accordingly, judgment enters at 10:00 a.m. this 16th day of May 2008.

/s/MARK R. JEFFRIES

CLERK MAGISTRATE

May 16, 2008

Emmanuel Ugocha

67 Coddington St

#203

Quincy, MA 02169

Jennifer L. Banks

295 Belmont Street

#2W

Brockton, MA 02301

————————-

[1] The Court finds that, since the rent abatement for the lack of heat and hot water in the premises for the month of February 2008 was 100%, no further damage award is appropriate for the defective stove in the premises for the same time period.

[2] The per diem rental amount is calculated as follows: $800.00 x 12 = $9,600.00 ? 365 = $26.30.

[3] Clear and convincing” evidence is that which “induces in the mind of the trier a reasonable belief that the facts 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).

End Of Decision

HOUSING COURT

127 Grant Street Realty Trust/Joe Ruffo PLAINTIFF v. Mirriam Edmonds DEFENDANT

Docket # Docket No. 08-SP-02975

Parties: 127 Grant Street Realty Trust/Joe Ruffo PLAINTIFF v. Mirriam Edmonds DEFENDANT

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: August 25, 2008

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

This is a summary process action in which the plaintiff seeks to recover possession of the premises from the defendant and damages for unpaid rent.

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

The defendant, Mirriam Edmonds, has resided at 127 Grant Street, U2, Fall River, MA (“the premises”) as a tenant at will since December 8, 2007. The plaintiff, 127 Grant Street Realty Trust/Joe Ruffo, is the owner of the premises and is the defendant’s landlord. The rent for the premises is $650.00 per month and is due on the eighth day of each month. The defendant has failed to pay the plaintiff any rent for the months of April 2008 through August 2008, owes a balance of $150.00 for the month of March 2008, and currently owes the plaintiff a total of $3,400.00 in unpaid rent.

The Court finds that, on July 9, 2008, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent.

At trial, the defendant testified that there were defective conditions in the premises.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant testified that, at the inception of her tenancy, Dan Rosman owned the building in which the premises is located, and that, when the plaintiff bought the building in January 2008, he did not inform her that he had done so. She testified that, until the plaintiff filed a Small Claims action against her on May 15, 2008, she did not know that he had bought the building. She testified that, in March 2008, one of the plaintiff’s workers was doing electric work in the building, and she learned that common area lights were on her electric meter. She testified that, at this time, she called the City of Fall River Division of Minimum Housing Standards (“Minimum Housing”). She testified that, in April 2008, she saw rats in the building, that her rear entry door is hollow and the rats eat through it, and that there are no smoke detectors or carbon monoxide detectors in the premises. She testified that, on May 15, 2008, the plaintiff informed her that he would come to the premises within a week to make repairs, but he never did. Joe Ruffo, Trustee of 127 Grant Street Realty Trust, testified that the plaintiff purchased the building in which the premises is located on January 2, 2008, and that he is at the building weekly to collect rent and to do maintenance work. He testified that the defendant

paid rent to him for the months of January 2008 and February 2008, made a partial payment in March 2008, and that he has consistently asked her for rent after March 2008. He testified that he did not receive any complaints from the defendant prior to receiving the March 25, 2008 Minimum Housing Report. He testified that, since receiving that Report, he has given the defendant both oral and written notice on numerous occasions to get access to the premises in order to make the repairs listed on the Minimum Housing Report, but that the defendant has repeatedly denied him access. He testified that, once he received the May 23, 2008 Minimum Housing report, he immediately addressed the rodent problem, which was an issue of garbage outside the building, that he has had no further problems and has not received any further calls. He testified that his maintenance workers were at the premises two (2) weeks before trial and three (3) weeks before trial, and that the defendant would not allow them into the premises, and said to them, “Don’t come in.” He testified that, on March 25, 2008, National Grid transferred the electric bill into his name retroactive to January 7, 2008, and gave the defendant a $30.00 credit for the common area lights on her electric meter. He testified that he has been unable to gain access to the premises in order to remove the common area lights from her electric meter, and that the account remains in his name. The Court credits Mr. Ruffo’s testimony on these issues.

The Court finds that, on March 25, 2008, Minimum Housing inspected the premises and found the following conditions: “1. Living room window glass cracked; 2. Living room wallplugs not working; 3. Pantry ceiling wall not finished; 4. Smoke alarms missing for apartment; 5. Carbon monoxide detectors missing in apartment; 6. Safety bars missing for upstairs bedroom northside (Baby sleeps there); 7. Paneling to wall in closet not flush–holes; 8. Back door to upstairs bedroom (second means) not solid. (Illegal door); 9. Door knob to entrance door (second means of egress) broken no turn key lock; 10. No outside window to eastside bedroom; 11. Debris, motor bike, trash upstairs hallway; 12. Cellar full of debris; 13. Hallway lights on tenant’s meter (Copy to National Grid).”

The Court finds that, on May 23, 2008, Minimum Housing re-inspected the premises and found that none of the violations listed on the March 25, 2008 Minimum Housing Report had been corrected, and listed an additional violation, as follows: “Signs of rodents in yard. Owner having extermination done. Rat traps in yard.”

The Court finds that the conditions listed in the March 25, 2008 and May 23, 2008 Minimum Housing Reports are conditions which constitute material violations of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that there was no evidence at trial that the plaintiff knew or should have known of the existence of these conditions until the plaintiff received the March 25, 2008 and May 23, 2008 Minimum Housing Reports. Since the defendant was already in arrears in her rent at the time the plaintiff learned of these conditions, the Court finds that the defendant is not entitled to a defense to possession under G.L. c. 239, s.8A based on these conditions. The Court finds that, since the defendant denied the plaintiff access to make repairs inside the premises, she is not

entitled to damages under G.L. c. 239, s.8A based on these conditions. The Court finds that there was no evidence at trial that the defendant prevented the plaintiff from cleaning the debris, motorbike and trash in the upstairs hallway or from cleaning the debris in the cellar. The Court finds that the defendant is entitled to damages under G.L. c. 239, s.8A based on these conditions. The Court finds that the defendant has already received a credit on her electric bill for the common area meter violation, and finds that the defendant is not entitled to any additional damages under G.L. c. 239, s.8A based on this claim.

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 enter for the plaintiff for possession of the premises and damages for unpaid rent in the amount of $3,400.00, plus costs in the amount of $182.70, a total of $3,582.70.

2. Judgment enter for the defendant on her counterclaim for breach of the implied warranty of habitability in the amount of $808.49.

3. The foregoing orders for judgment paragraphs 1 and 3 result in a net judgment for the plaintiff in the amount of $2,591.51 plus costs of $182.70, a total of $2,774.21.

4. Execution issue ten (10) days after the date that judgment enters.

cc: 127 Grant Street Realty Trust/Joe Ruffo

Mirriam Edmonds

————————-

[1] Since there was no evidence at trial of the exact date on which the plaintiff received the May 23, 2008 Minimum Housing Report and the exact date in May 2008 on which he addressed the rodent problem, the Court finds that it is a reasonable inference that the condition existed for approximately one (1) week between May 23, 2008 and the date on which the plaintiff addressed the problem. Accordingly, the Court will award damages for this condition for a period of seven (7) days in May 2008.

[2] The per diem rental amount is calculated as follows:

$650.00 x 12 = $7,800.00 ? 365 = $21.37.

End Of Decision

HOUSING COURT

Parviz Akbarieh PLAINTIFF v. Cheri Stevens DEFENDANT

Docket # Docket No. 08-SP-03411

Parties: Parviz Akbarieh PLAINTIFF v. Cheri Stevens DEFENDANT

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: September 17, 2008

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

This is a summary process action in which the plaintiff seeks to recover possession of the premises from the defendant and damages for unpaid rent.

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

The defendant, Cheri Stevens, has resided at 179 Covel Street, (2nd floor), Fall River, MA (“the premises”) as a tenant at will at all times since September 2007. The plaintiff, Parviz Akbarieh, is the owner of the premises and is the defendant’s landlord. The rent for the premises is $550.00 per month and is due on the ninth day of each month. The defendant has failed to pay the plaintiff any rent for the months of May 2008 through September 2008, owes a balance of $190.00 for the month of April 2008, and currently owes the plaintiff a total of $2,940.00 in unpaid rent.

The Court finds that, on July 24, 2008, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent.

At trial, the defendant testified that there were defective conditions in the premises.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim

“any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant testified that the cellar of the building in which the premises is located is cluttered, and that there is “a giant hole to climb through to get to the fuse box.” She testified that there have been cockroaches in the premises since the inception of her tenancy, and that the plaintiff has never exterminated. She testified that, in April 2008, the front door of the premises was “kicked in,” and that three (3) plasma televisions were stolen from the premises. She testified that one (1) electric outlet sparks, and that the electric cord falls out of one (1) other outlet. She testified that there were no smoke detectors in the premises for the first year of her tenancy, and that, even though there are currently smoke detectors, there are no batteries to operate them. The plaintiff testified that the defendant informed him that there were cockroaches in the premises in May 2008, that he engaged the services of an exterminator, and that the defendant has not notified him of any further problem with cockroaches. He testified that the front door to the premises “keeps getting kicked in,” and that he cannot afford to change the door. He testified that the defendant has never notified him of any of the other conditions about which she testified. The Court credits the defendant’s testimony on the issue of the smoke detectors, and credits the plaintiff’s testimony on the remaining issues.

The Court finds that there was no credible evidence at trial that the plaintiff knew or should have known of the defective electric outlets at any time prior to the trial of this action. Accordingly, the Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this condition.

The Court finds that the condition of the cellar is a condition in common areas of the building in which the premises is located, and finds that the plaintiff should have known of the existence of this condition. The Court finds that the cluttered condition of the cellar and the hole through which the defendant climbs to gain access to the fuse box is a condition which constitutes a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). Since there was no evidence at trial as to the date on which this condition arose, the Court finds that the defendant is not entitled to a defense to possession, and is unable to award the defendant any damages under G.L. c. 239, s.8A based on this condition.

The Court finds that the cockroach infestation in the premises and the defective front door are conditions which constitute material breaches of the implied warranty of habitability. Id. The Court

finds that the defendant is not entitled to a defense to possession under G.L. c. 239, s.8A, since she was in arrears in her rent at the time the plaintiff knew or should have known of these conditions. The Court finds that the defendant is entitled to damages under G.L. c. 239, s.8A based on these conditions.

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 enter for the plaintiff for possession of the premises and damages for unpaid rent in the amount of $2,940.00, plus costs in the amount of $170.00, a total of $3,110.00.

2. Judgment enter for the defendant on her counterclaim for breach of the implied warranty of habitability in the amount of $644.36.

3. The foregoing order for judgment paragraphs 1 and 2 result in a net judgment for the plaintiff for damages in the amount of $2,295.64, plus costs in the amount of $170.00, a total of $2,465.64.

4. Execution issue ten (10) days after the date that judgment enters.

cc: Parviz Akbarieh

Cheri Stevens

————————-

[1] The Court finds that it is a reasonable inference that two (2) weeks elapsed between the time that the plaintiff learned of the cockroach infestation and the time that the exterminator sprayed the premises.

[2] There was no evidence at trial as to the exact date in April 2008 on which this condition arose. Accordingly, the Court will use the date of April 1, 2008 to compute damages.

[3] The per diem rental amount is calculated as follows: $550.00 x 12 = $6,600.00 ? 365 = $18.08.

End Of Decision

HOUSING COURT

Fatima Alves, PLAINTIFF v. Antonella Krystyen and Richard Krystyen et al, DEFENDANTS

SOUTHEASTERN DIVISION

Docket # Docket No. 08-SP-02372

Parties: Fatima Alves, PLAINTIFF v. Antonella Krystyen and Richard Krystyen et al, DEFENDANTS

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: August 18, 2008

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

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

The defendants, Antonella Krystyen and Richard Krystyen[1], have resided at 410 Ashley Blvd., 3rd Fl., New Bedford, MA (“the premises”) as tenants under a Section 8 lease through March 31, 2008, and as tenants at will thereafter. The plaintiff, Fatima Alves, is the owner of the premises and is the defendants’ landlord. The rent for the premises is $900.00 per month and is due on the first day of each month. The defendants have failed to pay the plaintiff any rent for the months of May 2008 through July 2008, and currently owe the plaintiff a total of $2,700.00 in unpaid rent.

The Court finds that, on May 29, 2008, the plaintiff served the defendant Antonella Krystyen with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent-Tenant At Will and finds that, on May 30, 2008, the plaintiff served the defendant Richard Krystyen with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent-Tenant At Will.

The defendants filed a written answer and counterclaims based on breach of the implied warranty of habitability and violations of G.L. c. 239, s.2A and G.L. c. 186, s.18.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant Richard Krystyen testified that, in mid-January 2008, his granddaughter was bitten by bedbugs in the premises, and he called the plaintiff the next day and asked that the premises be exterminated. He testified that the plaintiff said she would buy some “stuff” online, but did not do so. He testified that his children are still being bitten by bedbugs. He testified that, on May 27, 2008 and May 30, 2008, he got estimates for exterminators, that he informed the plaintiff of these estimates, and that she responded that she could not afford to do anything.

The defendant Richard Krystyen also testified that, in mid-May 2008, he notified the plaintiff that there were sewer problems in the premises, that the sewer backed up on May 5, 2008 and was repaired on May 7, 2008. He testified that the problem recurred on May 8, 2008, and was still backed up on May 10, 2008. He testified that, in May 2008, he also called the City of New Bedford Department of Inspectional Services, Division of Minimum Housing Standards

(“Minimum Housing”) about the sewage problem.

The defendant Antonella Krystyen testified that she notified the plaintiff of the bedbug problem on March 29, 2008, that the plaintiff told her she would get some “stuff” online, and that she called the City of New Bedford Department of Inspectional Services, Environmental Health Division (“Environmental Health”) one (1) month later because the plaintiff had not done anything about the bedbugs.

The Court finds that, on June 4, 2008, Environmental Health inspected the premises and found the following conditions: “Bedbug spotting noticeable on mattress. Tenant has been through a box spring and mattress and a child’s bed mattress. Secure the services of a professional exterminator for the elimination of all bedbugs 24 hrs.; Faulty hallway sensor light on 3rd floor.” The Court finds that, on June 5, 2008, Environmental Health inspected the premises and found the following condition: “Out on the sidewalk after pickup day is a pile of discarded furniture, mattress, etc. Remove all discarded furniture and all other miscellaneous debris from sidewalk and dispose of in a proper manner. 24 hrs. Only 1 furniture per household will be picked up.”

The Court finds that, on May 13, 2008, Minimum Housing inspected the premises and found the following conditions: “Repair or replace defective sewage drainage system; Clean and sanitize cellar area; Repair or replace front hallway sensor lights; repair and finish front hallway walk; Replace broken window pane, east side of building; Provide handrail for front porch steps; Replace rear storm door; missing window; Repair or replace all damaged or missing window screens; Remove all refuse from around building.”

The plaintiff testified that the defendants never notified her that there were bedbugs in the premises, and that the first time she was aware of the problem was on June 4, 2008, when Environmental Health inspected the premises. She testified that she engaged the services of Able Pest Control of Brockton, MA promptly, and that Able Pest Control conducted an extermination of the building in which the premises is located on June 19, 2008. She also testified that the defendant Richard Krystyen notified her of the sewage backup on May 7, 2008, that she called her plumber immediately, and that the sewer backup was repaired that same night. She testified that the backup was caused by someone flushing improper items deliberately to cause a backup. She testified that her plumber also repaired the second backup the same day it occurred and that it was also caused by someone flushing improper items deliberately to cause a backup. She testified that Minimum Housing re-inspected the premises on June 17, 2008 and found that all violations had been corrected. The Court credits the plaintiff’s testimony on these issues.

The Court finds that it is a reasonable inference that the sewer backups at the premises in May 2008 were the result of actions by the defendants which caused those backups to occur. Accordingly, the Court finds that the defendants are not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this condition.

The Court finds that the presence of bedbugs in the premises and the remaining conditions listed in the June 4, 2008 and June 5, 2008 Environmental Health Reports and the May 13, 2008 Minimum Housing Report are conditions which constitute material breaches of

the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that there was no credible evidence at trial that the plaintiff knew or should have known of the existence of these conditions until she received the June 4, 2008 and June 5, 2008 Environmental Health Reports and the May 13, 2008 Minimum Housing Report, with the exception of the sewer backups. Since the defendants were in arrears in their rent at this time, the Court finds that the defendants are not entitled to a defense to possession based on these conditions. The Court finds that the defendants are entitled to damages under G.L. c. 239, s.8A based on these conditions.

In their written answer and counterclaims, the defendants contend that the plaintiff violated G.L. c. 239, s.2A and G.L. c. 186, s.18.

proceeded with or obtained relief in such action, (or)..made such report..shall create a rebuttable presumption that such summary process is a reprisal against the tenant for engaging in such activities…Such presumption may be rebutted only by clear and convincing evidence[3] that such action was not a reprisal against the tenant, and that the plaintiff 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, even if the tenant had not…engaged in such activity.”

The plaintiff testified that, when she received a letter from Section 8 in late March, 2008 that the defendants’ subsidy would be terminated effective April 1, 2008, she called them and asked how they would pay the rent. She testified that, in April 2008, after the defendants had sent her a partial rent payment of $300.00, she

informed them that she would have to evict them if they could not pay rent. She testified that the defendants informed her that they could not afford to pay the rent. The Court credits this testimony.

The Court finds that the plaintiff served the defendants with the 14 Day Notice To Quit for Non-Payment of Rent which forms the basis of this action on May 29, 2008. The Court finds that the defendants engaged in statutorily protected activity within six (6) months of the service of the May 29, 2008 Notice To Quit and accordingly are entitled to the statutory presumption of retaliation. The Court finds, on the facts of this case, that the plaintiff has established with clear and convincing evidence that she did not retaliate against the defendants. The Court finds that the plaintiff’s sole reason for serving the May 29, 2008 Notice To Quit was that the defendants had not paid rent when it was due. The Court finds that the plaintiff has shown by clear and convincing evidence that she had sufficient independent justification for taking such action, and that she would have in fact taken such action, in the same manner and at the same time the action was taken, even if the defendants had not contacted Minimum Housing on May 13, 2008. Accordingly, the Court finds that the defendants are not entitled to a defense to possession under G.L. c. 239, s.2A.

c. 186, s.18. The Court finds that, on the facts of this case, the defendants have not shown by a preponderance of the evidence that the plaintiff’s act of serving the defendants with the Notice To Quit on May 29, 2008 constitutes a reprisal for the defendants’ actions in contacting Minimum Housing on May 13, 2008. Accordingly, the Court finds that the defendants are not entitled to damages under G.L. c. 186, s.18.

ORDER FOR JUDGMENT

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

1. Judgment enter for the plaintiff for possession of the premises and damages for unpaid rent in the amount of $2,700.00, plus costs.

2. Judgment enter for the defendants on their counterclaim for breach of the implied warranty of habitability in the amount of $556.48.

3. Judgment enter for the plaintiff on the defendants’ remaining counterclaims.

4. The foregoing orders for judgment paragraphs 1 through 3 result in a net judgment for the plaintiff in the amount of $2,143.52, plus costs.

5. Execution issue ten (10) days after the date that judgment enters.

cc: John P. Callaghan, Esq.

Antonella Krystyen

Richard Krystyen

————————-

[1] At trial, the defendant Richard Krystyen testified that he is the person listed in the Notice To Quit and the Summary Process Summons and Complaint as “Mr. Krystyen”, and that he was served with both documents. Accordingly, the Court allowed an oral Motion To Amend the Notice To Quit and Summary Process Summons and Complaint to identify this defendant as “Richard Krystyen.” The Court finds that there was no evidence at trial that any adults other than the named defendants occupy the premises. Accordingly, the remainder of this decision will be limited to the defendants Antonella Krystyen and Richard Krystyen.

[2] The per diem rental amount is calculated as follows: $900.00 x 12 = $10,800.00 ? 365 = $29.59.

End Of Decision

HOUSING COURT

John Almeida and Carol Almeida, PLAINTIFFS v. Andrea Marks, Sierra Marks and Justin St. Julien, DEFENDANTS

SOUTHEASTERN DIVISION

Docket # Docket No. 08-SP-02817

Parties: John Almeida and Carol Almeida, PLAINTIFFS v. Andrea Marks, Sierra Marks and Justin St. Julien, DEFENDANTS

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: September 18, 2008

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

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

The defendants, Andrea Marks, Sierra Marks, and Justin St. Julien[1], resided at 1620 Acushnet Avenue, 1st floor, New Bedford, MA (“the premises”) as tenants at will from February 21, 2007 through July 17, 2008. The plaintiffs, John Almeida and Carol Almeida, are the owners of the premises and are the defendants’ landlords. The rent for the premises was $750.00 per month and was due on the twenty-first day of each month. The defendants failed to pay the plaintiffs any rent for the months of March 2008 through June 2008 and currently owe the plaintiffs a total of $3,000.00 in unpaid rent. The Court finds that the issue of possession is moot.

The Court finds that, on June 17, 2008, the plaintiffs served the defendants with a legally sufficient 14 Day Notice of Termination of Tenancy for Non-Payment of Rent.

The defendants filed a written answer and counterclaims based on breach of the implied warranty of habitability.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant Andrea Marks testified that there is an infestation of bedbugs in the premises. She testified that her daughter was being bitten by the bedbugs, that her child had an allergic reaction to the bites and that she had to take her out of school in May 2007. She testified that she notified the plaintiff John Almeida of the bedbug infestation several times, but that he did not do anything. She testified that the defendants withheld their rent beginning in March 2008, and that the conditions were repaired

two (2) months later.

The Court finds that, on March 11, 2008, the City of New Bedford Department of Inspectional Services, Environmental Health Division (“Environmental Health”) inspected the premises and found the following condition: “Bedbugs evident in seams of several mattress (sic). Tenants being bitten especially the child.” The Court finds that, on March 19, 2008, the City of New Bedford Department of Inspectional Services, Minimum Housing Division (“Minimum Housing”) inspected the premises and found the following conditions: “Repair or replace bathroom ceiling’s electric light fixture; Repair or replace living room’s front northwest window’s bottom sash (falls inward); Provide electric lights and switches in good working order for front hallway staircase; Provide handrails for front hallway staircase; Repair or replace front exterior exit door to enable easy usage and finish surrounding incasement (sic). Repair or replace rear hallway handrails (stabilize).”

The defendant Andrea Marks testified that the plaintiffs received a letter of compliance with respect to the Minimum Housing violations on or about May 19, 2008 and that the plaintiff John Almeida came to the premises to get the rent on May 22, 2008. She testified that she informed him that she was going to the Housing Court to “see about the two months it took him to fix things”. She testified that Mr. Almeida then threatened her “to get his money” by knocking on her door on May 23, 2008. She testified that she did not open the door, and that he went downstairs. She testified that he subsequently returned to the door and tried to open it by removing the doorknob.

She also testified that, in February 2008, Mr. Almeida changed the locks to the building, and when she asked for a key, he told her to “yell to the other tenants to let her in”. She testified that he gave her a key two (2) hours later.

She also testified that, on February 5, 2008, Mr. Almeida shut off her hot water because he thought it was the fourth floor tenants, when he had a dispute with her. She testified that she did not have hot water until the next day.

The plaintiff Carol Almeida testified that the first notice the plaintiffs received about bedbugs was on March 11, 2008, when Environmental Health inspected the premises. She testified that, at the inception of the defendants’ tenancy, there were no bugs of any kind in the premises. She testified that she called Environmental Health as soon as she received the March 11, 2008 Report to determine which apartment in the building had the problem. She testified that she also called New England Pest Control immediately, and that the exterminators treated the premises on March 22, 2008, April 16, 2008 and April 30, 2008. She testified that the plaintiffs have not received notice of any further problems with bedbugs.

The plaintiff Carol Almeida testified that the first notice the plaintiffs received with respect to the conditions listed in the March 19, 2008 Minimum Housing Report was on March 21, 2008, and that the defendants had never notified the plaintiffs of the existence of any of these conditions. She testified that the electric fixture in the bathroom ceiling and the electric lights and switches in the front hallway staircase were repaired on March 22, 2008, and that all of the remaining violations were completed by May 19, 2008.

The Court credits the plaintiff Carol Almeida’s testimony on these issues.

The Court finds that there was no credible evidence at trial that the plaintiff John Almeida intended to shut off the defendants’ hot water on February 5, 2008, or that he denied the defendant Andrea Marks a key to the premises for a two (2) hour period in February 2008. Accordingly, the Court finds that the defendants are not entitled to damages under G.L. c. 239, s.8A based on these claims.

The Court finds that there was no credible evidence at trial that the plaintiff knew or should have known of the bedbug infestation before receiving the March 11, 2008 Environmental Health Report, and no evidence at trial that the plaintiff knew or should have known of the existence of any of the conditions in the March 19, 2008 Minimum Housing Report before receiving that report on March 21, 2008.

The Court finds that the bedbug infestation and the conditions listed in the March 19, 2008 Minimum Housing Report are conditions which constitute material breaches of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). Accordingly, the Court finds that the defendants are entitled to damages under G.L. c. 239, s.8A based on these conditions.

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 enter for the plaintiffs for damages for unpaid rent in the amount of $3,000.00, plus costs in the amount of $258.20, a total of $3,258.20.

2. Judgment enter for the defendants on their counterclaim for breach of the implied warranty of habitability in the amount of $781.97.

3. The foregoing order for judgment paragraphs 1 and 2 result in a net judgment for the plaintiffs for damages in the amount of $2,218.03, plus costs in the amount of $258.20, a total of $2,476.23.

4. Execution issue ten (10) days after the date that judgment enters.

cc: Heather L. Martino, Esq.

Andrea Marks

Sierra Marks

Justin St. Julien

————————-

[1] The Court finds that the defendant Sierra Marks is the defendant Andrea Marks’ minor daughter. Accordingly, the remainder of this decision will refer only to the defendants Andrea Marks and Justin St. Julien.

[2] The per diem rental amount is calculated as follows:$750.00 x 12 = $9,000.00 ? 365 = $24.66.

End Of Decision

HOUSING COURT

Michael and Kathleen Barbosa v. Shaun Hose and Kyra Theobald

Docket # 08-SP-03382

Parties: Michael and Kathleen Barbosa v. Shaun Hose and Kyra Theobald

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: September 18, 2008

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

This is a summary process action in which the plaintiffs seek to recover possession of the premises from the defendants and damages for unpaid rent.

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

The defendants, Shaun Hose and Kyra Theobald, have resided at 206 Crapo Street, 2nd floor, New Bedford, MA (“the premises”) as tenants at will since approximately 2004. The plaintiffs, Michael and Kathleen Barbosa, are the owners of the premises and are the defendants’ landlords. The rent for the premises is $750.00 per month and is due on the first day of each month. The defendants have failed to pay the plaintiffs any rent for the months of July 2008 through September 2008, owe a balanced of $210.00 for the month of June 2008, and currently owe the plaintiffs a total of $2,460.00 in unpaid rent.

The Court finds that, on August 5, 2008, the plaintiffs served each of the defendants with a legally sufficient 14 Day Notice To

Vacate for Non-Payment of Rent with a Tenancy At Will.

At trial, the defendant Kyra Theobald testified that there are cockroaches in the premises. G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant Kyra Theobald testified that she saw cockroaches in the premises during the second week in June 2008, that she called the plaintiffs to report this condition, and that the plaintiff Michael Barbosa sprayed the premises himself two (2) weeks later. She testified that the plaintiff Michael Barbosa also sprayed the premises himself two (2) weeks after that, and that neither of these sprayings eliminated the cockroaches. She testified that the plaintiffs then called a pest control company, but that this did not solve the problem either. The plaintiff Michael Barbosa testified that, on June 20, 2008, he observed cockroaches in the mattress of a tenant who was moving out of the third floor apartment, and that he sprayed that apartment the same day. He testified that the defendant Kyra Theobald notified him on June 27, 2008 that there were cockroaches in the defendants’ apartment, and that he sprayed their apartment himself on two (2) occasions. He testified that he then engaged the services of New England Pest Control to exterminate the premises on July 24, 2008, August 20, 2008 and September 8, 2008. He testified that the City of New Bedford Department of Inspectional Services, Environmental Health Division (“Environmental Health”) inspected the premises on August 29, 2008 and determined that the cockroach infestation had been abated. The Court credits the testimony of the plaintiff Michael Barbosa on these issues.

The Court finds that the cockroach infestation in the premises is a condition which constitutes a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that the defendants are not entitled to a defense to possession under G.L. c. 239, s.8A, since they were in arrears in their rent at the time the plaintiffs knew or should have known of this condition. The Court finds that the defendants are entitled to damages under G.L. c. 239, s.8A based on this condition.

$24.66/day[1] x 25% = $6.17 x 74 = $456.58.

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 enter for the plaintiffs for possession of the premises and damages for unpaid rent in the amount of $2,460.00, plus costs in the amount of $218.45, a total of $2,678.45.

2. Judgment enter for the defendants on their counterclaim for breach of the implied warranty of habitability in the amount of $456.58.

3. The foregoing order for judgment paragraphs 1 and 2 result in a net judgment for the plaintiffs for damages in the amount of $2,003.42, plus costs in the amount of $218.45, a total of $2,221.87.

4. Execution issue ten (10) days after the date that judgment enters.

————————-

[1] The per diem rental amount is calculated as follows: $750.00 x 12 = $9,000.00 ? 365 = $24.66.

End Of Decision

HOUSING COURT

Francisco V. Bento v. Melanie M. Conde

Docket # 08-SP-02233

Parties: Francisco V. Bento v. Melanie M. Conde

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: July 3, 2008

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

This is a summary process action in which the plaintiff seeks to recover possession of the premises from the defendant and damages for unpaid rent.

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

The defendant, Melanie M. Conde, has resided at 237 Tinkham Street, Apt. 1, 1st Floor, New Bedford, MA (“the premises”) as a tenant at will since September 2007. The plaintiff, Francisco V. Bento, is the owner of the premises and is the defendant’s landlord. The rent for the premises is $400.00 per month and is due on the first day of the month.

The plaintiff testified that the defendant has failed to pay him any rent for the months of January 2008 through June 2008, and currently owes him a total of $2,400.00 in unpaid rent. The defendant testified that she does not owe the plaintiff $2,400.00 in unpaid rent, and that she paid the plaintiff $1,000.00 on the arrears after making an agreement with him to repay the unspecified amount of the arrears at an unspecified time during her tenancy. The Court credits the plaintiff’s testimony on this issue, and finds that the defendant has failed to pay the plaintiff any rent for the months of January 2008 through June 2008, and currently owes the plaintiff a total of $2,400.00 in unpaid rent.

The Court finds that, on May 23, 2008, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Quit.

The defendant testified that there are defective conditions in the premises and that the plaintiff is evicting her in retaliation for her calling Minimum Housing about the defective conditions.

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.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant testified that, at the inception of her tenancy in September 2007, she informed the plaintiff that the pilot light on the stove in the premises did not work, that there was no carbon monoxide detector, and that the bathtub did not drain properly. She testified that she repeatedly asked the plaintiff to repair these conditions, but he did not do so. She testified that, on May 15, 2008, the City of New Bedford Department of Inspectional Services, Division of Minimum Housing Standards (“Minimum Housing”) inspected the premises. The Court credits this testimony.

The Court finds that, on May 15, 2008, Minimum Housing found the following conditions in the premises: “Repair or replace cooking stove’s oven and left pilot; Repair or replace bathroom tub’s drain and provide stopper mechanism (clogged); Repair or replace rear storm door’s pump.” The Court finds that Minimum Housing re-inspected the premises on May 22, 2008 and found that all conditions had been repaired.

The plaintiff testified that he could not get access to the premises to make repairs because the defendant had changed the lock. He testified that he informed the defendant that he would make the repairs if she told him when to come to the premises, but that she did not do so. The Court does not credit this testimony.

The Court finds that the defective stove, the defective bathtub drain and the defective rear door pump are conditions which constitute material breaches of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that there was no evidence at trial that the plaintiff knew or should have known that the rear door pump was defective until he received the Minimum Housing Report. Since the defendant was already in arrears in her rent at the time the plaintiff learned of the existence of this condition, the Court finds that the defendant is not entitled to a defense to possession under G.L. c. 239, s.8A based on this condition. The Court finds that the defendant is entitled to a defense to possession under G.L. c. 239, s.8A based on the defective stove and the defective bathtub drain, and is entitled to damages under G.L. c. 239, s.8A based on all of the defective conditions.

pump at the premises for the 8 day period between May 15, 2008 and May 22, 2008, ten per cent (10%), calculated as follows: ($13.15/day[1] x 50% = $6.58 x 265 = $1,743.70) + ($13.15/day x 10% = $1.32 x 8 = $$10.56) = $1,754.26.

At trial, the defendant testified that the plaintiff served her with a “made-up eviction paper” the day after Minimum Housing inspected the premises.

G.L. c. 186, s.14 provides, in pertinent part: “Any lessor or landlord of any building or part thereof occupied for dwelling purposes… who directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant…shall…be liable for actual and consequential damages, or three month’s rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee, all of which may be applied in setoff to or in recoupment against any claim for rent owed or owing…”

Not every breach of the implied warranty of habitability constitutes a violation of G.L. c. 186, s.14. While the statute does not require that the landlord’s conduct be intentional, Simon v. Solomon, 386 Mass. 91 (1983), it does require that the landlord’s conduct cause a serious interference with the tenant’s quiet enjoyment. Doe v. New Bedford Housing Authority, 417 Mass. 263, 284-285 (1994); Lowery v. Robinson, 13 Mass.App.Ct. 982 (1982). “The covenant of quiet enjoyment protects a tenant’s right to freedom from serious interference with his tenancy-acts or omissions that impair the character and value of the leased premises. (citations omitted).” Doe v. New Bedford Housing Authority, supra at 285. The Court finds that the plaintiff’s failure to repair the stove and the bathtub drain for the 265 day period between September 1, 2007 and May 22, 2008 constitutes a serious interference with the defendant’s quiet enjoyment of the premises. The Court finds that the plaintiff’s breach of the implied warranty of habitability and his interference with the defendant’s quiet enjoyment of the premises for failure to repair the stove and the bathtub drain in the premises for the 265 day period between September 1, 2007 and May 22, 2008 arise from the same set of facts and involve the same damages. The defendant is not entitled to recover cumulative damages arising from the same facts under every theory of recovery, but she is entitled to recover damages under the theory which results in the largest award of damages. Wolfberg v. Hunter, 385 Mass. 390 (1982). The Court will award damages for these violations under G.L. c. 239, s.8A since that provides the defendant with the largest recovery.

The defendant testified that, on May 16, 2008, the plaintiff served her with “a made-up eviction notice”. The Court finds that the notice which the plaintiff gave to the defendant on May 16, 2008 provides, in pertinent part: “I Melanie Conde promise to pay Francisco V. Bento, Landlord…back rent in the amount of $2,000.00 by May 30, 2008. If this amount is not paid by May 30, 2008, I understand that I will be evicted on June 1, 2008.

“Eviction notice: Please be advised that by NOT signing the attached documents[2] I will be evicted from 237 Tinkham Street on May 19, 2008. My belongs (sic) will be placed outside of the property by 5:00 p.m. on May 19, 2008.”

The Court finds that the plaintiff’s action in serving the defendant with the May 16, 2008 self-help “eviction notice” constitutes a serious interference with the defendant’s quiet enjoyment of the premises. Accordingly, the Court finds that the

defendant is entitled to damages under G.L. c. 186, s.14 in the amount of $1,200.00, which represents three (3) months rent, based on this claim.

At trial, the defendant testified that the plaintiff served her with a Notice To Quit on May 23, 2008, in retaliation for the fact that she called Minimum Housing to report the defective conditions in the premises.

The Court finds that the plaintiff served the defendant with the 14 Day Notice To Quit for Non-Payment of Rent which forms the basis of this action on May 23, 2008, the day after Minimum Housing re-inspected the premises and found that the plaintiff had repaired the defective conditions listed in the May 15, 2008 Minimum Housing Report. The Court finds that the defendant is entitled to the statutory presumption under G.L. c. 239, s.2A since she engaged in protected activity within six (6) months of May 23, 2008. The Court finds that it is a reasonable inference that the plaintiff decided to terminate the defendant’s tenancy because she called Minimum Housing on or about May 15, 2008. The Court finds, on the facts of this case, that the plaintiff has failed to establish with clear and convincing evidence that he did not retaliate against the defendant. The Court finds that the plaintiff did not have sufficient independent justification for serving the May 23, 2008 Notice To Quit, and finds that he took this action in reprisal for the defendant’s action in calling Minimum Housing on or about May 15, 2008. Accordingly, the Court finds that the defendant is entitled to a defense to possession under G.L. c. 239, s.2A.

health or, in the city of Boston, to the commissioner of housing inspection or to any other board having as its objective the regulation of residential premises; or reporting or complaining of such violation or a suspected violation in writing to the landlord or to the agent of the landlord…shall be liable for damages which shall not be less than one month’s rent or more than three months’ rent, or the actual damages sustained by the tenant, whichever is greater, and the costs of the suit, including a reasonable attorney’s fee. The receipt of any notice of termination of tenancy except for non-payment of rent or, of increase in rent or, of any substantial alteration in the terms of tenancy within six months after the tenant has…made such report or complaint…shall create a rebuttable presumption that such notice or other action is a reprisal against the tenant for engaging in such activities. Such presumption shall be rebutted only by clear and convincing evidence that such person’s action was not a reprisal against the tenant and that such person 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 tenant engaging in, or the belief that tenants had engaged in, activities protected under this section.”

The Court finds that, since the Notice To Quit which forms the basis for this action was for non-payment of rent, the defendant is not entitled to the statutory presumption of retaliation under G.L. c. 186, s.18. The Court finds that, on the facts of this case, the defendant has shown by a preponderance of the evidence that the plaintiff’s act of serving the defendant with the Notice To Quit on May 23, 2008 constitutes a reprisal for the defendant’s calling Minimum Housing on or about May 15, 2008. Accordingly, the Court finds that the defendant is entitled to damages under G.L. c. 186, s.18 in the amount of $1,200.00, which represents three (3) months’ 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 enter for the defendant for possession of the premises under G.L. c. 239, s.2A.

2. Judgment enter for the plaintiff for damages for unpaid rent in the amount of $2,400.00, plus costs in the amount of $181.20, a total of $2,581.20.

3. Judgment enter for the defendant on her counterclaim for breach of the implied warranty of habitability in the amount of $1,754.26.

4. Judgment enter for the defendant on her counterclaim under G.L. c. 186, s.14 in the amount of $1,200.00.

5. Judgment enter for the defendant on her counterclaim under G.L. c. 186, s.18 in the amount of $1,200.00.

6. The foregoing orders for judgment paragraphs 2 through 5 result in a net judgment for the defendant in the amount of $1,573.06.

7. Execution issue ten (10) days after the date that judgment enters.

JUDGMENT

Judgment for the Defendant for possession, pursuant to M.G.L. Chapter 239, s.2A.

Judgment for the Plaintiff for unpaid rent in the sum of $2,400.00, plus costs of $181.20, for a total of $2,581.20.

Judgment for the Defendant for combined counterclaim damages in the sum of $4,154.26, resulting in a net judgment for said Defendant of $1,573.06, as more specifically set forth in paragraphs 3-6 of the Court’s Order for Judgment.

Accordingly, judgment enters at 10:00 a.m. this 7th day of July 2008.

/s/MARK R. JEFFRIES

CLERK MAGISTRATE

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[1] The per diem rental amount is calculated as follows: $400.00 x 12 = $4,800.00 ? 365 = $13.15.

[2] The Court finds that the plaintiff also attached a Rental Application which increased the rent to $700.00 per month effective June 1, 2008.

End Of Decision

HOUSING COURT

Barbara Cassidy v. Cranberry Highway Estates, Inc.

Docket # 08-CV-00331

Parties: Barbara Cassidy v. Cranberry Highway Estates, Inc.

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: December 30, 2008

ORDER

After hearing on the plaintiff’s Motion To Amend and/or Supplement Complaint, the Court rules as follows: The plaintiff requests that this Court allow an amendment to her Verified Complaint in this action to include a claim under G.L. c. 93A. The defendant has filed a Motion In Opposition To Plaintiff’s Motion To Amend and/or Supplement Complaint and a Memorandum in support of its Motion.

M.R.Civ.P. 15(a) provides, in pertinent part: “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…” The plaintiff contends that a motion to amend a pleading should be allowed unless some good reason appears for denying it. Coolidge Bank & Trust Co. v. First Ipswich Co., Inc., 9 Mass.App.Ct. 369 (1980). The plaintiff contends that, in this case, there is no good reason for denying the request to amend the Verified Complaint, and contends that the defendant will not be prejudiced by the amendment, since the defendant has been aware of the substance of the plaintiff’s claims under G.L. c. 93A since the Verified Complaint was initially filed on June 23, 2008. The plaintiff contends that the original complaint cited 940 CMR 10.03(2)(n), a regulation promulgated pursuant to G.L. c. 93A, and that this regulation has been a focus of the discovery in this action.

The defendant contends that, in this case, the plaintiff’s Motion To Amend and/or Supplement Complaint should be denied, and its Motion In Opposition To Plaintiff’s Motion To Amend and/or Supplement Complaint should be allowed. The defendant contends that leave to amend “should be granted unless there are good reasons for denying the motion.” Mathis v. Massachusetts Electric Co., 409 Mass. 256, 264 (1991). Such reasons include undue delay, bad faith, dilatory motive, undue prejudice to the opposing party and futility of the claim sought to be added. Sharon v. City of Newton, 437 Mass. 99, 102 (2002).

As a preliminary matter, the Court finds that a review the procedural history of this action is relevant to its ruling on these Motions. The plaintiff filed her four -count Verified Complaint on June 23, 2008, seeking damages for breach of the implied warranty of

habitability, failure to provide utilities and/or other services, interference with quiet enjoyment and negligent or intentional failure to maintain the premises, and sought a preliminary and permanent injunction ordering the defendant to replace the oil tank at the plaintiff’s residence. On July 14, 2008, this Court (Chaplin, J.) bifurcated this action, setting the trial of the plaintiff’s request for a preliminary and permanent injunction with respect to the replacement of the oil tank at the plaintiff’s residence for trial on August 21, 2008, prior to the beginning of the 2008 heating season. At this time, the Court also ordered that Interrogatories and Requests for Production of Documents be served by July 18, 2008, with responses due by August 1, 2008. On August 18, 2008, the parties filed an Interim Agreement, which resolved the urgent elements of the plaintiff’s claim for injunctive relief. Also on August 18, 2008, the Court issued a Tracking Order in this action, pursuant to Housing Court Standing Order No. 1-04, and set this action down for a Case Management Conference on October 6, 2008. This Case Management Conference was postponed to October 27, 2008, and was treated as a Pre-Trial Conference on that date. On October 27, 2008, the Court (Chaplin, J.) then set this matter down for trial on January 22, 2009. Pursuant to the August 18, 2008 Tracking Order, discovery must be completed by May 15, 2009, Rule 56 Motions must be heard by July 14, 2009, and a trial date must be set by August 13, 2009.

The Court finds that, since the urgency with which the parties originally contemplated an early trial date on the plaintiff’s request for injunctive relief has been resolved by the August 18, 2008 Interim Agreement, and since the remaining issues in this action are well within the applicable time standards, the Court finds that leave to amend the complaint to add a claim under G.L. c. 93A will not unduly prejudice the defendant, even if the allowance of the plaintiff’s Motion requires additional motion practice, additional discovery, and a continuance of the January 22, 2009 trial date. Accordingly, the plaintiff’s Motion To Amend and/or Supplement Complaint is ALLOWED, and the defendant’s Motion In Opposition To Plaintiff’s Motion To Amend and/or Supplement Complaint is DENIED.

End Of Decision

HOUSING COURT

Elaine Crone PLAINTIFF v. Cheryl Sanderson DEFENDANT

Docket # Docket No. 08-SP-02376

Parties: Elaine Crone PLAINTIFF v. Cheryl Sanderson DEFENDANT

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: August 14, 2008

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

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

The defendant, Cheryl Sanderson, has resided at 35 School Street, 2nd Floor, Middleborough, MA (“the premises”) as a tenant under a written rental agreement at all times relevant to this action. The plaintiff, Elaine Crone, is the owner of the premises and is the defendant’s landlord. The rent for the premises is $250.00 per week and is due each Friday for a week in advance.

The plaintiff testified that the defendant has failed to pay her any rent for the weeks of May 9, 2008 through July 11, 2008 and currently owes her a total of $2,500.00 in unpaid rent. The defendant testified that she has not paid any rent for the weeks of June 6, 2008 through July 11, 2008, and currently owes the plaintiff a total of $1,500.00 in unpaid rent. She testified that, on or about May 16, 2008, she left $750.00 in an envelope on the door of the premises for the plaintiff to pick up. The plaintiff testified that, on May 17, 2008, the defendant called her and said that she was late for work, and had left $750.00 in cash on her door. The plaintiff testified that she went to the premises and saw an envelope crumpled up and thrown on the floor, but there was no money in the envelope. The Court credits the plaintiff’s testimony on these issues, and finds that the defendant has failed to pay the plaintiff any rent for the weeks of May 9, 2008 through July 11, 2008, and currently owes the plaintiff a total of $2,500.00 in unpaid rent.

The Court finds that, on June 5, 2008, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent.

The defendant filed a written answer and counterclaims based on breach of the implied warranty of habitability and violations of G.L.

c. 186, s.14, G.L. c. 239, s.2A, G.L. c. 186, s.18, and G.L. c. 186, s.15B.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant testified that the heat for the premises is provided by a heater in the kitchen stove, and that it was cold in the premises, and that she used space heaters during the heating season. The plaintiff testified that the defendant complained about the heater on two (2) occasions, and that she promptly took care of the complaints. She testified that, on April 3, 2007, Middleborough Gas and Electric checked the venting of the heater and checked for the presence of carbon monoxide and found no problems, and that, on October 26, 2007, Middleborough Gas and Electric cleaned and adjusted the pilot light. The Court credits the plaintiff’s testimony on these issues.

The defendant testified that, at one point during her tenancy, the stove needed new knobs, that the plaintiff told her to leave the knob on the window sill, and that the plaintiff did not come to get the knob for a week. The plaintiff testified that she left the defendant two (2) messages about replacing the knob on the stove, but got no response. The Court credits the plaintiff’s testimony on these issues.

The defendant testified that, during the summer of 2007, there were maggots in the driveway. The plaintiff testified that there have never been any maggots in the driveway of the building in which the premises is located. The Court credits the plaintiff’s testimony on these issues.

The defendant testified that there is lead paint in the premises and her son is five (5) years old. The plaintiff testified that she did not know that the defendant’s son is under six (6) years of age until she received the Middleborough Board of Health Report in June 2008. She testified that there is no lead paint in the premises, but there is a coat of oil-based varnish under the top coat of paint. The Court credits the plaintiff’s testimony on these issues.

The Court finds that there is no credible evidence that either the condition of the heater or the defective stove knobs was serious, or that either of these conditions endangered the health or safety of the defendant, or that they diminished the fair rental value of the premises. Accordingly, the Court finds that the existence of these conditions did not constitute a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363

Mass. 184, 200-201 (1973). The Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on these conditions.

The Court finds that there was no credible evidence that there were maggots in the driveway of the building in which the premises is located during the summer of 2007, or that there has been any lead paint in the premises at any time during the defendant’s tenancy. Accordingly, the Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on these claims.

The defendant testified that the rental agreement between the parties does not state that she is responsible for the payment of the gas and electric service in the premises. The defendant also testified that four (4) common area lights are on her electric meter. The plaintiff testified that, at the inception of the tenancy, the defendant orally agreed to pay for gas and electricity, that there are two (2) electric meters, one (1) for each apartment in the building, that the only common area lights which are on the defendant’s electric meter are those which are adjacent to her apartment, and that she informed her of this at the inception of the tenancy. The Court credits the parties’ testimony on these issues.

The State Sanitary Code, 105 CMR 410.254, provides, in pertinent part: “(B) In a dwelling containing three or fewer dwelling units, the light fixtures used to illuminate a common hallway, passageway, foyer and/or stairway may be wired to the electric service serving an adjacent dwelling unit provided that if the occupant of such dwelling unit is responsible for paying for the electric service to such dwelling unit: (1) a written agreement shall state that the occupant is responsible for paying for light in the common hallway, passageway, foyer and/or stairway; and (2) the owner shall notify the occupants of the other dwelling units.”

The Court finds that there is no evidence that the plaintiff failed to provide gas or electricity to the premises, or that the defendant’s payments for gas and electricity had a negative impact on her use and enjoyment of the premises, or that she objected to paying for the gas and electricity to the premises before the filing of the answer and counterclaim in this action one (1) week before the trial of this action, or that her rent and the cost of gas and electricity, together, was more than the fair rental value of the premises. Poncz v. Loftin, 34 Mass. App. Ct. 909, 911 (1993). The Court finds that there was no evidence at trial that the plaintiff had complied with the requirement of 105 CMR 410.254(B) that the parties execute a written agreement that the tenant is responsible for payment of electric costs for common areas of the building adjacent to the defendant’s unit, or that she had notified the other occupants of the other apartments in the building. However, the Court finds that, “even if the plaintiff’s failure to reduce the utility agreement to writing constituted a technical breach of the implied warranty of habitability,…the breach was not material.” Woodruff v. Polk, Boston Housing Court No. 01-SP-04307 (October 22, 2001) (Winik, J). Accordingly, the Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this claim.

In her written answer and counterclaims, the defendant contends that the plaintiff has violated G.L. c. 186, s.14.

G.L. c. 186, s.14 provides, in pertinent part: “Any lessor or landlord of any building or part thereof occupied for dwelling purposes…who is required by law or by the express or implied terms of any contract or lease or tenancy at will to furnish…heat, light, power, [or] gas,…to any occupant of such building or part thereof, who…transfers the responsibility for payment for any utility services to the occupant without his knowledge or consent, or any lessor or landlord who directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant…shall…be liable for actual and consequential damages, or three month’s rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee, all of which may be applied in setoff to or in recoupment against any claim for rent owed or owing…”

The defendant contends that the plaintiff’s transfer of responsibility for payment of the gas and electric charges in the premises constitutes a violation of G.L. c. 186, s.14. The Court finds that there was no evidence at trial that the plaintiff transferred responsibility for payment of utilities to the defendant “without [her] knowledge or consent.” The Court finds that, in all of the circumstances of this case, the plaintiff’s failure to reduce the utility agreement to writing does not constitute a serious interference with the defendant’s quiet enjoyment of the premises. Doe v. New Bedford Housing Authority, supra at 284-285 (1994); Lowery v. Robinson, 13 Mass.App.Ct. 982 (1982). Accordingly, the Court finds that the defendant is not entitled to damages under G.L. c. 186, s.14 based on this claim.

The defendant testified that, on July 10, 2008, she was locked out of the basement of the building in which the premises is located, and that she believes the plaintiff is responsible for the lockout because she saw the plaintiff and her sister drive slowly by the premises three (3) times that day waiting for her to leave. The plaintiff testified that she was in Boston from 8:00 a.m. to 4:30 p.m. on that day, attending her aunt’s funeral and caring for her uncle who was hospitalized in the intensive care unit of a Boston hospital. She testified that she had nothing to do with the defendant being locked out of the basement. The Court credits the plaintiff’s testimony on these issues, and finds that there was no credible evidence at trial that the plaintiff knew or should have known about the lockout. Accordingly, the Court finds that the defendant is not entitled to damages under G.L. c. 186, s.14 based on this claim.

The defendant testified that other tenants in the building have been taking her mail. The Court credits this testimony, but finds

that there was no evidence at trial that the plaintiff knew or should have known about this issue. Accordingly, the Court finds that the defendant is not entitled to damages under G.L. c. 186, s.14 based on this claim.

proceeded with or obtained relief in such action, (or)..made such report..shall create a rebuttable presumption that such summary process is a reprisal against the tenant for engaging in such activities…Such presumption may be rebutted only by clear and convincing evidence1 that such action was not a reprisal against the tenant, and that the plaintiff 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, even if the tenant had not…engaged in such activity.”

The Court finds that the plaintiff served the defendant with the 14 Day Notice To Quit for Non-Payment of Rent which forms the basis of this action on June 5, 2008. The Court finds that the defendant is not entitled to the statutory presumption under G.L. c. 239, s.2A, since there was no credible evidence at trial that the defendant had engaged in any statutorily protected activity prior to June 5, 2008. The Court finds, on the facts of this case, that the plaintiff has shown by a preponderance of the evidence that her sole reason for serving the 14 Day Notice To Quit on the defendant on June 5, 2008 was that the defendant had not paid rent when due. Accordingly, the Court finds that the defendant is not entitled to a defense to possession under G.L. c. 239, s.2A based on this claim.

fee. The receipt of any notice of termination of tenancy except for non-payment of rent or, of increase in rent or, of any substantial alteration in the terms of tenancy within six months after the tenant has…made such report or complaint…shall create a rebuttable presumption that such notice or other action is a reprisal against the tenant for engaging in such activities. Such presumption shall be rebutted only by clear and convincing evidence that such person’s action was not a reprisal against the tenant and that such person 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 tenant engaging in, or the belief that tenants had engaged in, activities protected under this section.” [1]

The Court finds that, since the Notice To Quit which forms the basis for this action was for non-payment of rent, the defendant is not entitled to the statutory presumption of retaliation under G.L. c. 186, s.18. The Court finds that, on the facts of this case, the defendant has not shown by a preponderance of the evidence that the plaintiff’s act of serving the defendant with the Notice To Quit on June 5, 2008 constitutes a reprisal for the defendant’s engaging in any statutorily protected activity. Accordingly, the Court finds that the defendant is not entitled to damages under G.L. c. 186, s.18.

In her written answer and counterclaims, the defendant contends that the plaintiff violated the provisions of G.L. c. 186, s.15B (security deposit).

The defendant testified that she paid the plaintiff a security deposit in the amount of $900.00 at the inception of her tenancy, that she has never received a receipt, a statement of condition, or a notice of the account into which the security deposit was placed. She also testified that she has never received any interest on her security deposit. The plaintiff testified that the defendant paid the security deposit on February 16, 2007, and that she has placed it into an account at Rockland Trust, but that the security deposit is not in a separate account. She testified that she did not pay any interest on the security deposit to the defendant. The Court credits the parties’ testimony on these issues.

G.L. c. 186, s.15B(2)(c) provides, in pertinent part: “Any lessor of residential real property, or his agent, who accepts a security deposit from a tenant or prospective tenant shall, upon receipt of such security deposit, or within ten days after commencement of the tenancy, whichever is later, furnish to such tenant or prospective tenant a separate written statement of the present condition of the premises to be leased or rented…”

G.L. c. 186, s.15B(3)(a) provides, in pertinent part: “Any security deposit received by such lessor shall be held in a separate,

interest-bearing account in a bank, located within the commonwealth under such terms as will place such deposit beyond the claim of creditors of the lessor…A receipt shall be given to the tenant within thirty days after such deposit is received by the lessor which receipt shall indicate the name and location of the bank in which the security deposit has been deposited and the amount and account number of said deposit. Failure to comply with this paragraph shall entitle the tenant to immediate return of the security deposit.”

The Court finds that the plaintiff has violated the provisions of G.L. c. 186, s.s.15B(2)(b), (2)(c),(3)(a) and (3)(b) in the following respects: She did not provide the defendant with a receipt for the security deposit, did not provide her with a statement of condition, and did not place the security deposit into an interest-bearing escrow account, as required by G.L. c. 186, s.15B(3)(a). In addition, she did not pay the defendant any interest on the security deposit during her tenancy. The Court finds that the answer and counterclaims in this action constitute a demand for the return of the security deposit, and finds that the plaintiff has not returned the security deposit to the defendant. The Court finds that the plaintiff’s violation of G.L. c. 186, s.15B(3)(a) constitutes a violation of G.L. c. 186, s.6(a), and finds that the defendant is entitled to recover treble damages pursuant to the provisions of G.L. c. 186, s.15B(7) in the amount of $2,765.52, calculated as follows:

($900.00 x 3 = $2,700.00) + ($.12/day [2] x 546 [3] = $65.52).

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 enter for the defendant for possession of the premises under G.L. c. 239, s.8A.

2. Judgment enter for the plaintiff for damages for unpaid rent in the amount of $2,500.00, plus costs in the amount of $187.10, a total of $2,687.10.

3. Judgment enter for the defendant on her counterclaim under G.L. c. 186, s.15B(7) in the amount of $2,765.52.

4. Judgment enter for the plaintiff on the defendant’s remaining counterclaims.

5. The foregoing orders for judgment paragraphs 2 through 4 result in a net judgment for the defendant in the amount of $78.42.

6. Execution issue ten (10) days after the date that judgment enters.

cc: Elaine Crone

Cheryl Sanderson

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[2] $900.00 x 5% = $45.00 ? 365 = $.12.

[3] The period between February 16, 2007 and August 14, 2008 consists of 546 days.

End Of Decision

HOUSING COURT

Rosa and Messias Farias v. Paul Williams and Melissa Generex

SOUTHEASTERN DIVISION

Docket # 08-SP-03930

Parties: Rosa and Messias Farias v. Paul Williams and Melissa Generex

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: October 21, 2008

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

This is a summary process action in which the plaintiffs seek to recover possession of the premises from the defendants and damages for unpaid rent.

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

The defendants, Paul Williams and Mellissa Doe[1], have resided at 73 Buffinton Street, Apt. 2, Fall River, MA (“the premises”) as tenants at will since April 2008. The plaintiffs, Rosa and Messias Farias, purchased the building in which the premises is located on July 23, 2008, and are the defendants’ landlords. The rent for the premises is $150.00 per week and is due each Saturday for the week just ended. The defendants have failed to pay the plaintiffs any rent for the weeks ending July 26, 2008 through October 11, 2008, and currently owe the plaintiffs a total of $1,800.00 in unpaid rent.

The Court finds that, on September 2, 2008, the plaintiffs served the defendants with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent.

At trial, the defendant Paul Williams testified that there were defective conditions in the premises.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant Paul Williams testified that, before the plaintiffs purchased the building in which the premises is located on July 23, 2008, he notified the City of Fall River Department of Inspectional Services, Division of Minimum Housing Standards

(“Minimum Housing”) that there were defective conditions in the premises, and that he also notified the Commonwealth of Massachusetts Childhood Lead Poisoning Prevention Program (“the Lead Program”) that he believed there was lead paint in the premises. He testified that there is a child under the age of six (6) years living in the premises. The Court credits this testimony.

The Court finds that, on May 23, 2008, Minimum Housing inspected the premises and found the following conditions: “1. Hallway ceilings, all levels, paint peeling; 2. Windows in dining room-glass cracked. Safety hazard; 3. Center bedroom-glass broken. Frame loose. Paint peeling; 4. Bathroom ceiling damaged from leaks; 5. North bedroom-glass broken to window. Also tenant claims windows leak when raining; 6. Smoke detector not working.”

The Court finds that, on June 11, 2008, the Lead Program determined that there was lead paint in the premises.

The plaintiff Messias Farias testified that, prior to purchasing the building in which the premises is located on July 23, 2008, he did not conduct an inspection of the building. He also testified that the defendants did not notify him that there was lead in the premises or that there were any defective conditions in the premises. He testified that he did not know that Minimum Housing or the Lead Program had inspected the premises. The defendant Paul Williams testified that, when the plaintiffs purchased the building in which the premises is located, he notified the plaintiffs that there was lead in the premises, and that the plaintiff Messias Farias told him that he would not delead the premises, and that “if you don’t like it, you can leave.” The Court credits the plaintiff Messias Farias’ testimony on the issues of whether he was aware of the inspections conducted by Minimum Housing and by the Lead Program, and credits the testimony of the defendant Paul Williams on the issue of notifying the plaintiffs of the presence of lead in the premises.

The Court finds that there was no evidence at trial that the plaintiffs knew or should have known of any of the conditions listed in the May 23, 2008 Minimum Housing Report prior to the trial of this action. Accordingly, the Court finds that the defendants are not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on these conditions.

The Court finds that the presence of lead in the premises is a condition which constitutes a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that the defendants are entitled to a defense to possession and to damages under G.L. c. 239, s.8A based on these conditions.

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 enter for the plaintiffs for damages for unpaid rent in the amount of $1,800.00, plus costs in the amount of $180.00, a total of $1,980.00.

2. Judgment enter for the defendants on their counterclaim

for breach of the implied warranty of habitability in the amount of $1,837.82.

3. The foregoing order for judgment paragraphs 1 and 2 result in a net judgment for the plaintiffs in the amount of $142.18.

4. Judgment enter for the defendants for possession pursuant to the fifth paragraph of G.L. c. 239, s.8A, on the condition that within seven (7) days of their receipt of this ORDER, the defendants deposit with the Clerk of this Court, the sum of $142.18, in the form of cash, certified check, cashier’s check, or money order, payable to the plaintiffs. If this deposit is made, the Clerk shall immediately release all funds held by the Court to the plaintiffs. If the deposit is not made, judgment shall automatically enter in favor of the plaintiffs for possession and damages in the amount of $142.18, on the next business day following the expiration of the tenth (10th) day from the date of this Order.

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[1] At trial, one Melissa Generex testified that she is the person identified in the Summary Process Summons and Complaint and Notice To Quit as “Mellissa Doe.” Accordingly, the Court finds that the name of the defendant identified as Mellissa Doe shall be changed to Melissa Generex.

[2] The per diem rental amount is calculated as follows: $150.00 x 52 = $7,800.00 ? 365 = $21.37.

End Of Decision

HOUSING COURT

Cynthia and David Fitzgerald v. Sean Murphy

SOUTHEASTERN DIVISION

Docket # 08-CV-00482

Parties: Cynthia and David Fitzgerald v. Sean Murphy

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: September 12, 2008

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

This is a summary process action in which the plaintiffs sought to recover possession of the premises from the defendant and damages for unpaid rent.

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

The defendant, Sean Murphy, resided at 11 Sunset Road, Kingston, MA as a tenant under a written lease from September 10, 2006 through November 10, 2006, and as a tenant at will from November 11, 2006 until he vacated the premises on June 27, 2008. The plaintiffs, Cynthia and David Fitzgerald, are the owners of the premises and were the defendant’s landlords. The rent for the premises was $1,300.00 per month and was due on the tenth day of each month. The Court finds that the issue of possession is moot[1]. The plaintiff David Fitzgerald testified that the defendant has failed to pay him any rent for the months of April 2008 through June 2008 and currently owes him a total of $3,900.00 in unpaid rent. The defendant testified that, since the plaintiffs are holding a last month’s rent, he owes the plaintiffs a total of $2,600.00 in unpaid rent. The Court credits the plaintiff David Fitzgerald’s testimony on these issues, and finds that there was no credible evidence at trial that the defendant had paid the plaintiffs a last month’s rent. Accordingly, the Court finds that the defendant has failed to pay the plaintiffs any rent for the months of April 2008 through June 2008 and currently owes the plaintiffs a total of $3,900.00 in unpaid rent.

The plaintiff David Fitzgerald testified that, if the defendant does not pay the monthly rent by the end of the month, he owes the plaintiffs a late fee of $50.00, and that the defendant has not paid any late fees for the months of April 2008 through June 2008. The Court credits this testimony. The Court finds that paragraph 16 of the lease between the parties provided: “Payment is due on the 10th day of every month in full. If payment is not made in a timely (sic), exceeds the 30th of the month then late payment fee will be added $50.00 for a total of $1,350.00 in full.” The Court finds that there was no evidence at trial that this provision of the lease did not apply to the defendant’s subsequent tenancy at will. G.L. c. 186, s.15B(1)(c) provides: “No lease or other rental agreement shall impose any interest or penalty for failure to pay rent until thirty days after such rent shall have been due.” Since the defendant’s monthly rent was due on the tenth day of the month, the Court finds

that the plaintiffs imposed a late fee less than thirty (30) days after rent was due. Accordingly, the Court finds that the plaintiffs are not entitled to recover any late fees they have assessed against the defendant. Egan v. Hutson, Southeast Housing Court No. 06-SP-03552 (Chaplin, J., January 26, 2007).

The Court finds that, on June 11, 2008, the plaintiffs served the defendant with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent.

At trial, the defendant testified that there were defective conditions in the premises during his tenancy.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant testified that there is mold in the front closet in the premises, and that there is a leak in the living room ceiling which caused it to fall in February 2007. He testified that, at the inception of his tenancy, the bathroom needed an upgrade, that the plaintiffs gave him permission to upgrade the property, and that he was going to do the work “labor free”, but he could not afford to advance the money for the materials. He testified that the bathtub leaked, and that the plaintiffs did not call a plumber. He testified that, in December 2007, he removed the bathtub, and that there is still no bathtub in the premises. He testified that, at some unspecified time, he installed a new rubber floor in the shower, but there is no working shower in the premises. He testified that, at some unspecified time in 2007, the toilet broke, that he bought a new one and that the cost of the new toilet was deducted from his rent. He testified that, for eight (8) months, he put the drain hose from the washing machine into a 55 gallon barrel to prevent the washing machine from backing up into the shower. He testified that, at some unspecified time during his tenancy, he took down a wall in the pantry. He testified that the front door lock never worked, so he did not use the front door. The defendant testified that he orally notified the plaintiffs on a weekly basis of the conditions in the premises and that he contacted the Kingston Board of Health (“Board of Health”) in June 2008.

The Court finds that, on June 13, 2008, the Board of Health inspected the premises and, on June 16, 2008, reported that it had found the following conditions: “Bathroom: no shower or tub. Living Room – Water in the corner-damp. Bedroom #1 – Floor wet and damp. Bedroom #3 – Mold in closet, ceiling leaking. Front Porch – Area by front door covered in mold.”

The plaintiff David Fitzgerald testified that, at the inception of his tenancy, the defendant agreed to repair a leak in the ceiling, remove the mold in the closet, and install a storm door in lieu of

paying the balance of a security deposit. The plaintiff Cynthia Fitzgerald testified that the defendant paid a security deposit in the amount of $600.00, and agreed to do the necessary repairs in lieu of paying the balance of the security deposit. The Court credits the plaintiffs’ testimony on these issues.

The plaintiff David Fitzgerald testified that the defendant had never notified the plaintiffs-either orally or in writing–of any defective conditions in the premises until he received a certified letter dated June 8, 2008 from the defendant on June 11, 2008. The Court finds that this letter stated that, on June 2, 2008, there was water on the kitchen floor of the premises from an overflowing washing machine that was draining into a tub because the drain was clogged. The Court finds that this letter also stated that the water from this overflow seeped into his daughter’s bedroom and caused the carpet to be wet. The Court finds that this letter also stated that the living room closet has had black mold for three (3) years, the living room ceiling collapsed from a roof leak[2], and that the toilet did not work, so the defendant bought a new one. The Court finds that this letter also stated that the shower area had mold growing behind the tile walls and under the cast iron bathtub, so the defendant removed the bathtub and the walls around the shower, along with the black mold.

The plaintiff David Fitzgerald testified that, in May 2008, an insurance readjuster inspected the premises and found no problems, except for the wallboard the defendant took down. He testified that the defendant took the bathtub out after he told him not to, and that he believes he took it for scrap metal. He testified that, in order to remove the bathtub from the premises, the defendant knocked down the wall to an adjoining bedroom, and did not put it back up properly. The Court credits the plaintiffs’ testimony on these issues.

The Court finds that the conditions listed in the June 8, 2008 certified letter which the defendant sent the plaintiffs, in the aggregate, constitute material breaches of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that there was no credible evidence at trial that the plaintiffs knew or should have known of the existence of these conditions until they received the June 8, 2008 certified letter on June 11, 2008. The Court finds that, since the defendant removed the bathtub from the premises, he is not entitled to damages under G.L. c. 239, s.8A based on this condition. The Court finds that, since the defendant has already been reimbursed for the lack of a toilet in the premises for a one (1) week period at some unspecified time during his tenancy, he is not entitled to any additional damages under G.L. c. 239, s.8A based on this condition. The Court finds that there was no credible evidence at trial that a ceiling in the premises actually “collapsed.” Accordingly, the Court finds that the defendant is not entitled to damages under G.L. c. 239, s.8A based on this condition. The Court finds that the defendant is entitled to damages under G.L. c. 239, s.8A based on the remaining conditions listed in the June 8, 2008 certified letter.

The Court finds that the condition of the front porch at the premises, which is listed in the June 16, 2008 Board of Health Report, is the only condition on the Board of Health Report which is not listed in the June 8, 2008 certified letter. The Court finds that this condition constitutes a material breach of the implied

warranty of habitability. Id. The Court finds that there was no credible evidence at trial that the plaintiffs knew or should have known of the existence of this condition until they received the June 16, 2008 Board of Health Report. The Court finds that the defendant is entitled to damages under G.L. c. 239, s.8A based on this condition.

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 enter for the plaintiffs for damages for unpaid rent in the amount of $3,900.00, plus costs in the amount of $180.70, a total of $4,080.70.

2. Judgment enter for the defendant on his counterclaim for breach of the implied warranty of habitability in the amount of $294.86.

3. The foregoing order for judgment paragraphs 1 and 2 result in a net judgment for the plaintiffs for damages in the amount of $3,605.14, plus costs in the amount of $180.70, a total of $3,785.84.

4. Execution issue thirty (30) days after the date that judgment enters.

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[1] Since the defendant vacated the premises prior to the date on which the Summary Process Summons and Complaint was filed, the Court, sua sponte, will treat this case as a civil action, rather than a summary process action. Accordingly, the Court has transferred this case to the civil docket, as reflected in the civil docket number supra.

[2] The Court notes that the June 16, 2008 Board of Health Report found that the ceiling in a bedroom leaked and that there was mold in the closet in that bedroom, but did not find a leaking ceiling or mold in the living room. Accordingly, the Court finds that it is a reasonable inference that the leaking ceiling and the mold to which the defendant’s June 8, 2008 letter and the June 16, 2008 Board of Health Report refer are the same conditions.

[3] The per diem rental amount is calculated as follows:$1,300.00 x 12 = $15,600.00 ? 365 = $42.74.

End Of Decision

HOUSING COURT

Jim Ferretti v. Dawn Rizzo

SOUTHEASTERN DIVISION

Docket # 08-SP-04608

Parties: Jim Ferretti v. Dawn Rizzo

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: December 22, 2008

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

This is a summary process action in which the plaintiff seeks to recover possession of the premises from the defendant and damages for unpaid rent.

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

The defendant, Dawn Rizzo, has resided at 431 Washington Street, #3, Taunton, MA (“the premises”) under a written tenancy at will agreement since April 1, 2008. The plaintiff, Jim Ferretti, is the owner of the premises and is the defendant’s landlord. The rent for the premises is $1,350.00 per month and is due on the first day of the month. The defendant has failed to pay the plaintiff any rent for the months of November 2008 and December 2008, and currently owes the plaintiff a total of $2,700.00 in unpaid rent.

The Court finds that, on October 16, 2008, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Vacate for Non-Payment of Rent-Tenant at Will.

At trial, the defendant testified that there are defective conditions in the premises.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant testified that, at the inception of her tenancy, there were conditions in the premises that needed to be repaired, including the dishwasher, which “squeaks,” and is missing the bottom molding strip. She testified that the closet doors did not have a bottom track, so, at some unspecified time during her tenancy, her boyfriend fixed them and deducted them from the rent. She testified that, in June 2008, there was a problem with the electricity in her daughter’s bedroom, and that it took the plaintiff 1€ months to get someone to look at it. She testified that an electrician put in an

outlet for the refrigerator, and that, when she used the air conditioners or her hair dryer, the fuses would “blow.” She testified that she informed the plaintiff that the fuses were “blowing,” and that he told her that summer was almost over, so he would not do anything. She testified that, on September 12, 2008, she notified the plaintiff that there was a leak in the kitchen ceiling, through which water would get into the electric fixture and the kitchen cabinets. She testified that the plaintiff did not repair this condition. She also testified that there was no heat in the premises from September 16, 2008 through October 19, 2008, and that she called the Taunton Board of Health (“Board of Health”) on October 10, 2008 about this condition. She testified that the thermostat is “fixed” at 68?, but the rooms do not get to 68?. She also testified that there are no screens in the two (2) upstairs bedrooms, and that the upper deck has no flooring, just tarpaper, and that it has rotted. She also testified that the bathroom shower area does not have a door, and that caulking is needed around the sink and bathtub. She testified that the plaintiff installed the smoke detectors and the carbon monoxide detectors on October 22, 2008, but that no other repairs have been made.

The Court finds that, on October 20, 2008, the Board of Health inspected the premises and found the following conditions: “1. Carbon monoxide detectors and fire alarms not present throughout dwelling unit…Order: Properly repair or replace smoke detectors and carbon monoxide alarms throughout unit in compliance with 527 CMR…2. Ceiling and wall in kitchen area and ceiling in bedroom closet area in disrepair. Ceilings and wall showing signs of chronic dampness and water infiltration. Water appears to be flowing around electrical sockets and overhead light fixture, possibly causing arching/shorts and continual blowing of fuses…Order: Determine cause of water infiltration and correct in kitchen and bedroom closet areas. Remove, discard and replace all damaged wallboard and ceiling. Clean and disinfect all areas effected, with a bleach and water mix or mold remediation cleaner. If necessary, seek outside remediation contractor and/or environmental consulting firm. Ensure that electrical wiring and connections have not been damaged by water…3. Kitchen floor in disrepair. Floor tiles are cracked or broken and are no longer smooth and impervious…Order: Repair or replace kitchen floor.”

The Court finds that, on November 20, 2008, the Board of Health inspected the premises and found the following conditions:

“1. Heating unit in disrepair. Temperatures do not meet minimum requirements…Order: Ensure heating unit is in proper working order. Supply the Board of Health with written documentation of the electrical work and plumbing work done and relevant permits pulled…2. Door to upstairs outside porch in disrepair. Door is not weather tight…Order: Repair or replace door. Ensure door is weather tight.”

The plaintiff testified that he spent $40,000.00 on a brand new heating system for the building in which the premises is located in the summer of 2008, that, on August 1, 2008, the new heating system was turned on, and that the defendant did not notify him of any problems with the heat. He testified that the heating system consists of an oil fired boiler with separate circulators for each

unit in the building, that the Board of Health inspected the heating system and determined that the circulator for the defendant’s unit was working. The plaintiff testified that the defendant installed three (3) air conditioners in the windows of the premises, and that, when all three (3) air conditioners were running at the same time, the circuits overloaded. He testified that an electrician inspected the premises one (1) day after the defendant notified him of the problem, and that the electrician installed an additional 220 line to the defendant’s unit approximately two (2) weeks after the defendant notified him of this condition. The plaintiff testified that, at the inception of the defendant’s tenancy, all of the windows had new screens, and that there were working smoke detectors in the unit. He testified that, after he received the October 20, 2008 Board of Health Report, he determined that the batteries had been removed from the smoke detectors. He testified that he installed batteries in the smoke detectors and installed carbon monoxide detectors in the unit on October 22, 2008. The plaintiff testified that, on October 22, 2008, he requested access to the premises the next day in order to repair the leak. He testified that, on October 23, 2008, the defendant denied him access to repair the leak He also testified that the defendant denied him access to the premises in order to install the new kitchen floor tiles. The plaintiff testified that he received the November 20, 2008 Board of Health Report by certified mail on November 24, 2008. The Court credits this testimony.

The Court finds that, on December 1, 2008, the Board of Health re-inspected the premises and found as follows: “[T]he smoke alarms and carbon monoxide alarms have been installed. In regards to the heating concerns, I have met with the plumber whom (sic) installed the new heating system to ensure it is working properly and the unit is putting out a sufficient amount of heat…Also, Mr. Ferretti did purchase tile to replace the kitchen flooring and will replace it once gaining access to the apartment.”

The Court credits the defendant’s testimony with respect to the existence of the defective conditions in the premises, with the exception of problems with the heating system. The Court credits the plaintiff’s testimony with respect to the condition of the heating system, the smoke detectors, the screens, and on the issue of when repairs were made to the defective conditions in the premises.

The Court finds that there was no credible evidence at trial that the heating system was defective at any time during the defendant’s tenancy, or that the upper deck was defective, or that there were defective conditions in the bathroom of the premises. Accordingly, the Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on these conditions.

The Court finds that the defendant denied the plaintiff access to the premises to repair the leak in the kitchen and to install the new kitchen floor tiles, and finds that it is a reasonable inference that the defendant removed the batteries from the smoke detectors and the screens from the upstairs bedroom windows. Accordingly, the Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on these conditions.

The Court finds that there was no credible evidence at trial that the condition of the dishwasher or the missing bottom tracks on

the closet doors in the premises were serious, or that these conditions endangered the health or safety of the defendant, or that they diminished the fair rental value of the premises. Accordingly, the Court finds that the existence of these conditions did not constitute a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on these conditions.

The Court finds that the defective electrical system, the lack of carbon monoxide detectors and the defective door to the upstairs porch are conditions which constitute material breaches of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that there was no evidence at trial that the plaintiff knew or should have known that the door to the upstairs porch was defective until he received the Board of Health Report on November 24, 2008. Since the defendant was already in arrears in her rent at the time the plaintiff learned of the existence of this condition, the Court finds that the defendant is not entitled to a defense to possession under G.L. c. 239, s.8A based on this condition. The Court finds that the defendant is entitled to a defense to possession under G.L. c. 239, s.8A based on the defective electrical system and the lack of carbon monoxide detectors, and is entitled to damages under G.L. c. 239, s.8A based on all of the defective conditions.

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 enter for the plaintiff for damages for unpaid rent in the amount of $2,700.00, plus costs in the amount of $187.92, a total of $2,887.92.

2. Judgment enter for the defendant on her counterclaim for breach of the implied warranty of habitability in the amount of $2,466.42.

3. The foregoing orders for judgment paragraphs 1 and 2 result in a net judgment for the plaintiff in the amount of $233.58, plus costs in the amount of $187.92, a total of $421.50.

4. Judgment enter for the defendant for possession pursuant to

the fifth paragraph of G.L. c. 239, s.8A, on the condition that within seven (7) days of her receipt of this ORDER, the defendant deposits with the Clerk of this Court, the sum of $233.58, plus costs in the amount of $187.92, a total of $421.50, in the form of cash, certified check, cashier’s check, or money order, payable to the plaintiff. If this deposit is made, the Clerk shall immediately release all funds held by the Court to the plaintiff. If the deposit is not made, judgment shall automatically enter in favor of the plaintiff for possession and damages in the amount of $233.58 plus costs in the amount of $187.92, a total of $421.50, on the next business day following the expiration of the tenth (10th) day from the date of this Order.

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[1] The per diem rental amount is calculated as follows: $1,350.00 x 12 = $16,200.00 ? 365 = $44.38.

End Of Decision

HOUSING COURT

Michelle Fleurent and Bryan Nadeau, PLAINTIFFS v. Jody Nadeau, DEFENDANT

SOUTHEASTERN DIVISION

Docket # Docket No. 07-CV-00530

Parties: Michelle Fleurent and Bryan Nadeau, PLAINTIFFS v. Jody Nadeau, DEFENDANT

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: December, 2008

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

This is a civil action in which the plaintiffs seek to recover damages from the defendant for breach of the implied warranty of habitability, negligence, intentional infliction of emotional distress, and violations of G.L. c. 186, s.14 and G.L. c. 186, s.18. The defendant filed a written answer.

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

The plaintiff Michelle Fleurent testified that she moved into 46 Lafayette Street, New Bedford, MA (“the premises”) on April 14, 2005, approximately ten (10) days after the plaintiff Bryan Nadeau did. She testified that the rent for the premises was $125.00 per week with all utilities included, that the rent was due each Friday, and that she paid the rent to the defendant, the owner of the premises, in cash. She testified that there was no signed agreement to pay utilities. She testified that the defendant did not give her any receipts, and that, when she moved in, the defendant gave her a key. She testified that there was a rent receipt book in the washer-dryer room in the basement of the building in which the premises is located. She testified that, at some unspecified time, the defendant would not give her a receipt for her rent, and that she needed to provide the United Way with a receipt so that United Way would pay her rent. She testified that she “made the receipt up” to

get United Way to pay her rent. She testified that she wrote the November 3, 2005 entry of $625.00 for November rent in the receipt book, and that the defendant told her to sign the receipt. She testified that she also wrote the December 7, 2005 entry in the receipt book and that she signed the defendant’s name on that receipt. She testified that she never gave the rent receipts to anybody, and that she “was desperate to get money.” She testified that she received two checks for her rent from charities. The plaintiff Bryan Nadeau testified that, in April 2005, the defendant, his younger sister, asked him to move into the premises. He testified that the plaintiff Michelle Fleurent moved into the premises two (2) or three (3) days after he did. He testified that, at first, the rent was $500.00 per month, and that, after three (3) months, the defendant changed the rent to $125.00 per week “so she gets more money that way in a 5 week month.” He testified that he paid cash for rent, and that either the defendant would pick it up or he would go to their mother’s house and pay the rent either to their mother or to the defendant. He testified that he got a key to the premises. The defendant testified that she owns the building in which the premises is located. She testified that, in April 2005, her brother, the plaintiff Bryan Nadeau, asked her if he could stay in the premises, which consists of a room in the basement with a bathroom, for a three (3) to six (6) month period because “he was trying to get off drugs.” She testified that he owed her approximately $2,000.00 at that time, and that she asked him to pay her $125.00 per week while he stayed at the premises. She testified that she told the plaintiff Bryan Nadeau that she would apply $50.00 of each payment to the $2,000.00 he owed her, and would apply the rest of each payment to her utility bill for the building in which the premises is located. She testified that she did not rent the premises to either of the plaintiffs, but agreed to allow her brother to stay there for a few months. She testified that she first saw the plaintiff Michelle Fleurent at the premises in the summer of 2005. She testified that there was never a landlord-tenant relationship between her and the plaintiff Michelle Fleurent, but that she believes the plaintiff Michelle Fleurent stayed there periodically with her brother. She testified that she received two (2) checks from charities, and that she used this money to pay her utility bill. The defendant testified that she first saw the rent receipt book on the floor of the common area by the washer-dryer when she was picking up debris after the plaintiffs vacated the premises. She testified that she never received any of the money listed on these receipts, that she did not sign any receipts, and that she did not authorize anyone to sign any receipts. The Court credits the defendant’s testimony on these issues.

Sister Rose Ellen Gallogly, Executive Director of Market Ministries Shelter Program, testified that the plaintiff Michelle Fleurent applied to Market Ministries for rental assistance in February 2006, and that the application was filled out by one of Market Ministries’ staff members. She testified that Market Ministries pays for rent, but not utilities. She testified that, after confirming with the landlord that the money was owed, Market Ministries paid the defendant $200.00 by check dated April 12, 2006. She testified that Market Ministries would not have known if the landlord used the money for utilities. The Court credits this testimony.

Rosemary Morgan, Administrative Assistant at Grace Episcopal Church, New Bedford, MA, testified that, on March 8, 2006, the Church issued a check in the amount of $200.00 to the defendant for rental assistance. She testified that, if the Church were providing assistance with utilities, the check would have gone directly to the utility company, rather than to the landlord. She testified that the Church would not have known if the landlord applied this check to utilities, rather than rent. The Court credits this testimony. The Court finds that the March 8, 2006 check from Grace Episcopal Church contains a notation on the memo line “Michelle Fleurent Rent.”

The Court finds that the defendant’s acceptance of $75.00 per week from the plaintiff Brian Nadeau beginning in April 2005 created a landlord-tenant relationship with him, and finds that her acceptance of the checks from Market Ministries and Grace Episcopal Church created a landlord-tenant relationship with the plaintiff Michelle Fleurent as of March 2006. Accordingly, the Court finds that the plaintiffs occupied the premises as tenants at will, and that the weekly rent was $75.00.

In Count I of their Amended Complaint, the plaintiffs contend that the defendant breached the implied warranty of habitability.

The plaintiff Michelle Fleurent testified that the plaintiff Bryan Nadeau was fixing up the premises before she moved in, and that, when she moved in on April 14, 2005, there was nothing there except the refrigerator, the stove and the bathroom. She testified that, when she moved in, there was no furniture in the premises, and that she brought in a bedroom set, a bar, a bassinet, and clothes. The plaintiff Bryan Nadeau testified that the premises were not furnished when he moved in. Jamie Zussy testified that he lives with the defendant, and that he used to own the building in which the premises is located jointly with the defendant. He testified that he lived in the basement for approximately 18 months in or about 2000. He testified that the premises consisted of a finished but unfurnished room when he moved in, and that he furnished the premises with a bed, a bureau, a couch, kitchen utensils, a TV and computer stand when he moved into the premises. He testified that, after 18 months, he moved back in with the defendant, and left all of his furniture and furnishings in the premises. He testified that no one else lived in the premises until the plaintiffs, and that the furniture and the furnishings were still there when they moved in. The Court credits the testimony of Mr. Zussy on these issues, and finds that the premises was furnished with Mr. Zussy’s possessions when the plaintiffs moved into the premises.

The plaintiff Michelle Fleurent testified that, during the first year of her tenancy, she had no problems with other tenants, but then one Paul Hoaglund and his sister moved into the building in which the premises is located. She testified that Mr. Hoaglund broke into the premises on August 21, 2006, stole many of the plaintiffs’ possessions and damaged others, including the bedroom set, a bureau, the bed, the couch, the TV set, the radio, and her infant son’s swing, playpen, and walker. The plaintiff Michelle Fleurent testified that the New Bedford Police Department found some of the items which had been stolen in Mr. Hoaglund’s shower, and that she has recovered some of her stolen possessions, but that she has not recovered the ring her grandmother gave her before she died. The

plaintiff Bryan Nadeau testified that, on August 21, 2006, he was at the premises and told the police of the break-in. He testified that the police recovered a TV set, a VCR and a DVD player.

The plaintiff Michelle Fleurent testified that she informed the defendant of the break-in and asked her to “put a no trespass” on Mr. Hoaglund, but that the defendant told her she was selling the house, so she would have to do that herself. The plaintiff Michelle Fleurent testified that she told the defendant she did not want to go back to the premises because the drop ceiling tiles were broken and the doorknob had a large hole in it. She testified that she told the defendant that she could not lock the door, and could not go back to the premises until the door was fixed. She testified that the defendant told her that she did not have time to fix the door, and told her it was her own fault that the premises had been broken into. The plaintiff Bryan Nadeau testified that, on August 21, 2006, the deadbolt was broken when the door was “kicked in,” that he told the defendant of the break-in and of the broken door, and that he vacated the premises two (2) days later.

The plaintiff Michelle Fleurent testified that, after the August 21, 2006 break-in, Mr. Hoaglund told her that, if she called the police, he would “filet me like a fish,” and “would kill you and your son.” She testified that, after Mr. Hoaglund told her this, she was scared and that she left the premises and went to a friend’s house with her son for a period of 13 days. She testified that she informed the defendant where she was going, and that the defendant did not repair either the door or the lock. The plaintiff Michelle Fleurent testified that, when she came back to the premises in early September 2006, she found many of her possessions in a dumpster located on the property, including her son’s carseat, couch, playpen, and baby photos, and that, since it had rained, these things were ruined.

The plaintiff Bryan Nadeau testified that, after the August 21, 2006 break-in, he told the defendant he would get another apartment in two (2) weeks, and that she told him she would throw everything out. He testified that he asked her not to do that. He testified that, two weeks later, he went back to the apartment with the plaintiff Michelle Fleurent and that there was a new lock on the door and all of his possessions were in the dumpster, including the bedroom set, baseball cards, old coins, and stamps, pictures of his three (3) daughters, the new couch , a TV set, a VCR, and a DVD player. He testified that he put what he could save into his broken-down pickup truck.

The defendant testified that, on August 21, 2006, the plaintiff Bryan Nadeau called her to inform her of the break-in, and that she told him to call the police. She testified that she had no conversation with the plaintiff Michelle Fleurent after the break-in, that the plaintiff Michelle Fleurent never called her to inquire about fixing the lock, and that she did not know where the plaintiff Michelle Fleurent had gone. She testified that, prior to the break-in, the plaintiff Bryan Nadeau informed her that he was leaving the premises “in a couple of days,” and that he left the premises on August 23, 2006. She testified that she went to the premises on August 25, 2006, and that she observed that all of the plaintiffs’ possessions were gone, that the door was wide open, and that the

premises “looked like an episode of ‘Cops’.” She testified that all of the remaining things in the premises belonged to her and to Mr. Zussy, and that the “baby” items which were in the dumpster belonged to her sister, and had been stored in the basement of the building in which the premises is located until Mr. Zussy put them in the dumpster.

Mr. Zussy testified that, in late August 2006, he got a call from the plaintiff Bryan Nadeau to inform him that he was leaving the premises, that he subsequently went to the premises and observed that none of the plaintiff Bryan Nadeau’s clothing remained in the premises. He testified that, at this time, he observed that the plaintiff Bryan Nadeau’s pickup truck in the yard was full. He also testified that all of the items which remained in the premises belonged to him or to the defendant. He testified that he waited an additional two (2) weeks before putting his furniture into the dumpster. The Court credits the testimony of the defendant and Mr. Zussy on these issues.

The Court finds that there was no credible evidence at trial that the defendant knew or should have known that some of the drop ceiling tiles had been broken in the August 21, 2006 break-in until she went to the premises on August 25, 2006. Since the Court finds that the plaintiffs had vacated the premises on August 23, 2006, the Court finds that the plaintiffs are not entitled to damages for breach of the implied warranty of habitability based on this condition.

The Court finds that the lack of a door lock at the premises following the August 21, 2006 break-in is a condition which constitutes a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that the plaintiffs are entitled to damages for breach of the implied warranty of habitability based on this condition.

In Count II of their Amended Complaint, the plaintiffs contend that the defendant violated G.L. c. 186, s.18.

regulation of residential premises; or reporting or complaining of such violation or a suspected violation in writing to the landlord or to the agent of the landlord…shall be liable for damages which shall not be less than one month’s rent or more than three months’ rent, or the actual damages sustained by the tenant, whichever is greater, and the costs of the suit, including a reasonable attorney’s fee. The receipt of any notice of termination of tenancy except for non-payment of rent or, of increase in rent or, of any substantial alteration in the terms of tenancy within six months after the tenant has…made such report or complaint…shall create a rebuttable presumption that such notice or other action is a reprisal against the tenant for engaging in such activities. Such presumption shall be rebutted only by clear and convincing evidence[2] that such person’s action was not a reprisal against the tenant and that such person 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 tenant engaging in, or the belief that tenants had engaged in, activities protected under this section.”

The plaintiff Michelle Fleurent testified that she never received a Notice To Quit or a Summary Process Complaint before the defendant disposed of her possessions in the dumpster at the property after the August 21, 2006 break-in. The plaintiff Bryan Nadeau testified that he never received a Notice To Quit or a Summary Process Complaint from the defendant. The defendant testified that she did not evict the plaintiff Bryan Nadeau, but that he left voluntarily, and that she had no contact with the plaintiff Michelle Nadeau after the August 21, 2006 break-in. She also testified that, when she went to the premises on August 25, 2006, she observed that there were no personal possessions of either of the plaintiffs in the premises. The Court credits the parties’ testimony on these issues.

The Court finds that there was no evidence at trial that either of the plaintiffs engaged in statutorily protected activity at any time during their tenancy at the premises, and, accordingly, are not entitled to the statutory presumption of retaliation under G.L. c. 186, s.18. The Court finds, on the facts of this case, that the plaintiffs have failed to establish by a preponderance of the evidence that the defendant retaliated against them. The Court finds, on the facts of this case, that the defendant’s sole reason for not serving the plaintiffs with a Notice To Quit was that the plaintiffs had vacated the premises voluntarily prior to the date on which the defendant locked the door to the premises following the August 21, 2006 break-in. Accordingly, the Court finds that the plaintiffs are not entitled to damages under G.L. c. 186, s.18.

In Count III of their Amended Complaint, the plaintiffs contend that the defendant was negligent in maintaining the premises and in providing adequate security at the premises. In order to recover on this claim, the plaintiffs have the burden of proving by a preponderance of the evidence each of the following elements: (1) The defendant owed the plaintiffs a duty of care; (2) the defendant breached that duty of care; (3) the plaintiffs suffered injury or harm; and (4) the defendant’s breach of duty was a substantial cause of the plaintiffs’ injury or harm.

The first element which the plaintiffs must prove is that the defendant owed them a duty of care. Carrier v. Riddell, Inc., 721

F.2d 867, 868 (1st Cir. 1983). A “duty” is an obligation to conform to a particular standard of conduct toward another person which is recognized and enforced in the law. Mounsey v. Ellard, 363 Mass. 693, 707 (1973). The Court finds that the defendant, as landlord, owed the plaintiffs, as tenants, a duty of care with respect to the premises during their tenancy.

The second element which the plaintiffs must prove is that the defendant did not exercise the required amount of care under the circumstances, i.e., that the defendant breached her duty of care to the plaintiffs, or, in other words, was negligent. Irwin v. Town of Ware, 392 Mass. 745, 764 (1984); Goldstein v. Gontarz, 364 Mass. 800, 804 (1974). See also Perry v. Medeiros, 369 Mass. 836 (1976). The standard of care is how a person of reasonable prudence would act in similar circumstances. Kane v. Field Corner Grille, 341 Mass. 640, 642 (1961); Gelinas v. New England Power Co., 359 Mass. 119, 124, (1971). The plaintiffs contend that the defendant breached her duty of care to the plaintiffs by failing to maintain the premises during their tenancy, and by failing to provide adequate security at the premises.

The third element which the plaintiffs must prove is that they suffered harm as the result of the defendant’s negligence. The plaintiffs contend that the defendant’s negligence resulted in the loss of their possessions in the August 21, 2006 break-in.

The fourth element the plaintiffs must prove is that the defendant’s negligent conduct caused the plaintiffs’ harm. Simmons v. Monarch Machine Tool Co., 413 Mass. 205, 212 (1992). To meet their burden, the plaintiffs need only show that there was greater likelihood or probability that the harm complained of was due to causes for which the defendant was responsible than from any other cause. Mullins v. Pine Manor College, 389 Mass. 47, 58 (1983). The defendant’s conduct was the legal cause of the plaintiffs’ harm if it was a substantial factor in bringing it about, without which the harm would not have occurred. O’Connor v. Raymark Industries, Inc., 401 Mass. 586, 591-92 (1988). “Substantial” means that the defendant’s contribution to the harmful result was not an insignificant factor. The defendant’s negligence must contribute significantly to the result; it must be a material and important ingredient in causing the harm. If the defendant’s negligence was a substantial factor, then it is considered a legal cause of the plaintiffs’ injury, and the plaintiffs are entitled to recover damages. Id.

In order to establish causation, the plaintiffs must show that the harm was reasonably foreseeable to a person in the defendant’s position at the time of the defendant’s negligence. The plaintiffs do not have to establish that the defendant foresaw, or should have foreseen, the exact manner in which the harm occurred, but they must show that this harm was a natural and probable consequence of the defendant’s negligence. Hill v. Winsor, 118 Mass. 251, 259 (1975). The plaintiffs are not required to show the exact cause of their injuries or to exclude all possibility that they resulted without the fault of the defendant. McLaughlin v. Bernstein, 356 Mass. 219 (1969); Edwards v. Boland, 41 Mass.App.Ct. 375 (1996); Woronka v. Sewall, 320 Mass. 362, 365 (1946). The plaintiffs must show only that the harm was more likely due to the defendant’s negligence than to some other cause. Evangelico v. Metropolitan Bottling Co., 339

Mass. 177, 180 (1959); Roscigno v. Colonial Beacon Oil Co., 294 Mass. 234 (1936).

The Court finds that there was no credible evidence at trial that the defendant was negligent in maintaining the premises at any time during the plaintiffs’ tenancy, or that the defendant was negligent with respect to providing adequate security for the premises, and finds that the August 21, 2006 break-in was not reasonably foreseeable. Accordingly, the Court finds that the plaintiffs are not entitled to damages based on this claim.

In Count IV of their Amended Complaint, the plaintiffs contend that the defendant violated G.L. c. 186, s.14.

G.L. c. 186, s.14 provides, in pertinent part: “Any lessor or landlord of any building or part thereof occupied for dwelling purposes… who directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant, or who attempts to regain possession of such premises by force without benefit of judicial process, shall…be liable for actual and consequential damages, or three month’s rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee, all of which may be applied in setoff to or in recoupment against any claim for rent owed or owing…”

The plaintiffs and the defendant testified that there was no written agreement that the plaintiffs pay utilities. The Court credits the parties’ testimony on this issue.

The Court finds that there was no evidence at trial that the defendant failed to provide utilities to the premises, or that the plaintiffs’ payments for utilities had a negative impact on their use and enjoyment of the premises, or that they objected to paying for the utilities to the premises, or that the cost of the utilities was more than the fair rental value of the premises, or that there was a meter violation. “The essence of the violation in this case was the failure to reduce the oral agreement to writing.” Poncz v. Loftin, 34 Mass. App. Ct. 909, 911 (1993). Accordingly, the Court finds that the plaintiffs are not entitled to damages under G.L. c. 186, s.14 based on this claim.

The plaintiff Michelle Fleurent testified that the defendant told her that she had to come into the premises on one (1) occasion during the plaintiffs’ tenancy when the plaintiffs were not there to “change her kid.” The Court credits this testimony. The Court finds that there was no evidence at trial that the defendant’s conduct on this isolated occasion constituted a serious interference with the plaintiffs’ quiet enjoyment of the premises. Accordingly, the Court finds that the plaintiffs are not entitled to damages under G.L. c. 186, s.14 based on this claim.

The Court finds that there was no credible evidence at trial

that the defendant’s conduct following the August 21, 2006 break-in constituted a serious interference with the plaintiffs’ quiet enjoyment of the premises. Accordingly, the Court finds that the plaintiffs are not entitled to damages under G.L. c. 186, s.14, or attorney’s fees, based on this claim.

In Count V of their Amended Complaint, the plaintiffs contend that the defendant’s actions as set forth in the Amended Complaint constitute intentional infliction of emotional distress.

The elements of a claim for intentional infliction of emotional distress are as follows: The claimants must show “(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct;…(2) that the conduct was ‘extreme and outrageous,’ was ‘beyond all possible bounds of decency’ and was ‘utterly intolerable in a civilized community’;…(3) that the actions of the [defendant] were the cause of the [plaintiffs] distress;…and (4) that the emotional distress sustained by the [plaintiffs] was ‘severe’ and of a nature ‘that no reasonable man could be expected to endure it.’…” Agis v. Howard Johnson Co., 371 Mass. 140, 144-45 (1976); see also Simon v. Solomon, 385 Mass. 91 (1982).

The plaintiff Bryan Nadeau testified that the plaintiff Michelle Fleurent has not been the same since the August 21, 2006 break-in, that she sleeps a lot now, and that she is “not emotionally high-spirited”. The plaintiff Michelle Fleurent testified that she can’t sleep, and that she is still upset about losing her possessions. The Court credits the testimony of the plaintiff Bryan Nadeau on these issues.

The Court finds that there is no credible evidence that the defendant engaged in any conduct which was “extreme and outrageous,” finds that there is no credible evidence that any emotional distress sustained by either of the plaintiffs was severe, and finds that there is no credible evidence that the defendant’s actions were the cause of any emotional distress either of the plaintiffs may have sustained. Accordingly, the Court finds that the plaintiffs are not entitled to damages based on this claim.

At trial, the plaintiff Michelle Nadeau testified that, when she moved into the premises, she gave the defendant $1,000.00 in cash, representing first month’s rent and security deposit. She testified that, at this time, the plaintiff Bryan Nadeau was working and that he gave her the money to give to the defendant. She testified that she did not receive a statement of condition from the defendant, that she did not receive either a receipt for the security deposit or any information as to the account into which it had been placed, and that the defendant did not return the security deposit to her after she vacated the premises. The plaintiff Bryan Nadeau testified that the defendant received $1,000.00 for first month’s rent and a security deposit, that he did not receive any documents from the defendant with respect to the security deposit and that the defendant did not return the security deposit after the plaintiffs vacated the premises. The defendant testified that she never received a security deposit from either of the plaintiffs, and that she never received $1,000.00 from either of the plaintiffs in April 2005. The Court credits the defendant’s testimony on these issues, and finds that there was no credible evidence at trial that either of

the plaintiffs paid the defendant a security deposit. Accordingly, the Court finds that the plaintiffs are not entitled to damages under G.L. c. 186, s.15B based on this claim.[3]

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 enter for the plaintiffs on their claim for breach of the implied warranty of habitability in the amount of $16.02, plus costs.

2. Judgment enter for the defendant on all the remaining counts of the plaintiffs’ complaint.

3. Execution issue thirty (30) days after the date that judgment enters.

cc: Joseph L. Michaud, Esq.

John P. Callaghan, Esq.

————————-

[1] The per diem rental amount is calculated as follows: $75.00 x 52 = $3,900.00 ? 365 = $10.68.

[3] Although there is no claim in the Amended Complaint that the defendant violated G.L. c. 186, s.15B, the parties testified on these issues at trial, M.R.Civ.P. 54(c) provides, in pertinent part: “…[E]very final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.”

End Of Decision

HOUSING COURT

Fall River Housing Authority, PLAINTIFF v. Nancy Debarros, DEFENDANT

SOUTHEASTERN DIVISION

Docket # Docket No. 08-SP-01327

Parties: Fall River Housing Authority, PLAINTIFF v. Nancy Debarros, DEFENDANT

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: June 27, 2008

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

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

The defendant, Nancy Debarros, has resided at 505 Fordney Street, Fall River, MA (“the premises”) as a tenant under a Fall River Housing Authority Lease for Federally and State Aided Public Housing since April 1, 2001. The plaintiff, Fall River Housing Authority, is the owner of the premises and is the defendant’s landlord. The rent for the premises is $555.00 per month and is due on the first day of each month, no later than the seventh day of each month. The Court finds that the defendant has failed to pay the plaintiff any rent for the months of December 2007 through May 2008, owes a balance of $34.00 for the month of November 2007, and currently owes the plaintiff a total of $3,364.00 in unpaid rent.

The Court finds that, on February 29, 2008, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent.

The defendant filed a written answer and counterclaims based on breach of the implied warranty of habitability, damage to personal property and intentional infliction of emotional distress.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant testified that, on September 24, 2007, she saw bedbugs in her son’s bedroom in the unit, and notified the plaintiff. She testified that, because of the presence of the bedbugs, she threw out bedroom sets and relocated her children for two (2) weeks. She testified that the plaintiff exterminated the unit and “bombed” the

unit. She testified that, on November 26, 2007, she saw bedbugs again in the unit in a mattress and threw the affected furniture out the window of the premises. She testified that she notified the plaintiff and that the premises was exterminated again. She testified that there are now two (2) rooms in her unit with no bedroom sets. She testified that she has been withholding her rent since November 2007 because of the bedbug infestation. She testified that there has been no bedbug activity in her unit since November 2007. The Court credits this testimony.

Lori Ras, the property manager, testified that the Russell family in Unit 504 had had a bedbug problem, and that the plaintiff had transferred that family to another development. She testified that she started working at the development in which the premises is located in October 2007 and that, on November 26, 2007, she received a report that the defendant was throwing things out of her second floor window. She testified that she called the exterminator immediately, and met him at the apartment. She also testified that she observed some of the defendant’s possessions on the front lawn. She testified that Flynn Pest Control, Inc. treated the unit that day and that the defendant has not reported any further bedbug activity in the premises. She testified that Flynn Pest Control, Inc. has conducted follow-up treatment on a regular basis since November 2007. The Court credits this testimony.

John Picard, the plaintiff’s Federal Portfolio Manager, testified that, on September 24, 2007, the property manager got a call from the defendant concerning bedbugs, and that Flynn Pest Control, Inc. inspected the premises on the same day and performed an extermination. He testified that, since the Russell family vacated Unit 504, Flynn Pest Control, Inc. has conducted numerous exterminations as a precaution, and confirmed that Unit 504 was clear of bedbug activity. He testified that Unit 503 also had bedbugs, that this condition was addressed immediately, and that there has been no bedbug activity since the treatment. He also testified that the current residents in Unit 504 have had no bedbug activity since the inception of their tenancy. He testified that, on November 26, 2007, Flynn Pest Control, Inc. inspected the premises and found no bedbug activity, but sprayed anyway. He testified that Flynn Pest Control, Inc. also sprayed Units 504 and 503 at this time and found no bedbug activity in either of those units. The Court credits this testimony.

Michael Bordeaux, Supervisor, Flynn Pest Control, Inc., testified that, on September 24, 2007, the property manager called him and reported that the defendant was distraught about the presence of bedbugs, and that he went over to the premises immediately, inspected and treated the unit. He testified that he did not see any furniture on the lawn. He testified that he observed a box spring and mattress up against the wall, and that the defendant informed him that she had gotten rid of the furniture in which she had seen the bedbugs. He testified that he had never detected any bedbugs in the unit. He testified that, on September 24, 2007, he fully treated the bedroom by dusting it, and treating the furniture and the baseboards. He testified that he sprayed the next room and placed monitoring boards in the unit. He testified that, on November 26, 2007, he went to the premises and gave the unit the full treatment. He testified that he did not observe any bedbug activity at this time. He also

testified that Flynn Pest Control conducted follow-up inspections on December 13, 2007, and January 31, 2008 and did not notice any bedbug activity in the premises. The Court credits this testimony.

The Court finds that the presence of bedbugs in the premises is a condition which constitutes a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). Accordingly, the Court finds that the defendant is entitled to a defense to possession and to damages under G.L. c. 239, s.8A based on this condition.

In her written answer and counterclaims, the defendant contends that the plaintiff’s actions damaged some of her personal property. The Court finds that there was no evidence at trial of the value of these items of personal property. Accordingly, the Court finds that the defendant is not entitled to recover damages based on this claim.

In her written answer and counterclaims, the defendant contends that the plaintiff’s actions constitute intentional infliction of emotional distress.

The elements of a claim for intentional infliction of emotional distress are as follows: The claimant must show “(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct;…(2) that the conduct was ‘extreme and outrageous’;…(3) that the actions of the plaintiff were the cause of the defendant’s distress;…and (4) that the emotional distress sustained by the defendant was ‘severe’….” Agis v. Howard Johnson Co., 371 Mass. 140, 144-45 (1976); see also Simon v. Solomon, 385 Mass. 91 (1982). The Court finds that there is no credible evidence that the plaintiff engaged in any conduct which was “extreme and outrageous,” finds that there is no credible evidence that any emotional distress sustained by the defendant was severe, and finds that there is no credible evidence that the plaintiff’s actions were the cause of any emotional distress the defendant may have sustained. Accordingly, the defendant is not entitled to an award of damages based on this claim.

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 enter for the plaintiff for damages for unpaid rent in the amount of $3,364.00, plus costs in the amount of $140.00, a total of $3,504.00.

2. Judgment enter for the defendant on her counterclaim for breach of the implied warranty of habitability in the amount of $584.32.

3. Judgment enter for the plaintiff on the defendant’s

remaining counterclaims.

4. The foregoing order for judgment paragraphs 1 through 3 result in a net judgment for the plaintiff in the amount of $2,779.68, plus costs in the amount of $140.00, a total of $2,919.68.

5. Judgment enter for the defendant for possession pursuant to the fifth paragraph of G.L. c. 239, s.8A, on the condition that within seven (7) days of her receipt of this ORDER, the defendant deposits with the Clerk of this Court, the sum of $2,779.68, payable to the plaintiff, plus costs in the amount of $140.00, a total of $2,919.68. If this deposit is made, the Clerk shall immediately release all funds held by the Court to the plaintiff. If the deposit is not made, judgment shall automatically enter in favor of the plaintiff for possession and damages in the amount of $2,779.68, plus costs in the amount of $140.00, a total of $2,919.68, on the next business day following the expiration of the tenth (10th) day from the date of this Order.

cc: Michael J. Sousa, Esq.

Nancy Debarros

SOUTHEASTERN DIVISION

Docket No. 08-SP-01327

Fall River Housing Authority, Plaintiff vs. Nancy Debarros, Defendant

JUDGMENT

Judgment for the Plaintiff for unpaid rent of $3,364.00, plus costs of $140.00, for a total of $3,504.00.

Judgment for the Defendant on her counterclaim for breach of the implied warranty of habitability in the sum of $584.32; resulting in a net judgment to Plaintiff of $2,919.68 with costs, as more specifically set forth in paragraphs 2 and 4 of the Court’s Order for Judgment.

Judgment for the Plaintiff as to the Defendant’s remaining counterclaim issues.

Judgment for the Defendant for possession, but contingent upon her timely compliance with the payment provisions contained in paragraph 5 of the Court’s Order for Judgment. Failing same, judgment shall automatically enter for Plaintiff for possession, damages of $2,779.68, plus

costs of $140.00, for a total of $2,919.68, as is further provided in said paragraph 5.

Accordingly, judgment enters at 10:00 a.m. this 30th day of June 2008.

/s/MARK R. JEFFRIES

CLERK MAGISTRATE

June 30, 2008

Michael J. Sousa, Esq.

210 Rock Street

Fall River, MA 02720

Nancy Debarros

505 Fordney St

Fall River, MA 02720

————————-

[1] The per diem rental amount is calculated as follows:$555.00 x 12 = $6,600.00 ? 365 = $18.25).

End Of Decision

HOUSING COURT

Hebron Village by and through its managing agent S-C Management Corporation, PLAINTIFF v. Delabarre Sullivan, DEFENDANT

SOUTHEASTERN DIVISION

Docket # Docket No. 08-SP-02534

Parties: Hebron Village by and through its managing agent S-C Management Corporation, PLAINTIFF v. Delabarre Sullivan, DEFENDANT

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: August, 2008

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

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

The defendant, Delabarre Sullivan, has resided at 999 Read Street, #509, Attleboro, MA (“the premises”) as a tenant under a Sharp Occupancy Agreement since May 13, 2002. The plaintiff, Hebron Village, by and through its managing agent, S-C Management Corporation, is the owner of the premises and is the defendant’s landlord. The rent for the premises is $765.00 per month.

Valerie Beroth, the plaintiff’s property manager, testified that, under the lease between the parties, rent is due on the first day of each month. She testified that the defendant has failed to pay the plaintiff any rent for the months of July 2008 and August

2008, and currently owes the plaintiff a total of $1,530.00 in unpaid rent. The defendant testified that this case should be dismissed because he had paid his rent in full before the plaintiff served him with the Summary Process Summons and Complaint on June 27, 2008. Ms. Beroth testified that the plaintiff did not receive a money order from the defendant for the rent for June 2008 until July 7, 2008, even though the money order was dated June 24, 2008. The Court credits Ms. Beroth’s testimony on these issues, and finds that there was no credible evidence at trial that the defendant had paid his rent in full prior to being served with the Summary Process Summons and Complaint on June 27, 2008.

The Court finds that the rent for the premises is $765.00 per month and is due on the first day of each month. The Court finds that the defendant has failed to pay the plaintiff any rent for the months of July 2008 and August 2008, and currently owes the plaintiff a total of $1,530.00 in unpaid rent.

The Court finds that, on June 11, 2008, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Pay Rent or Quit.

The defendant filed a written answer and counterclaims based on defective conditions and violations of G.L. c. 186, s.14 and G.L. c. 93A.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The Court finds that there was no evidence at trial that the plaintiff had breached the implied warranty of habitability at any time during the defendant’s tenancy. Accordingly, the Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this claim.

In his written answer and counterclaims, the defendant contends that the plaintiff violated G.L. c. 186, s.14.

G.L. c. 186, s.14 provides, in pertinent part: “Any lessor or landlord of any building or part thereof occupied for dwelling purposes… who directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant…shall…be liable for actual and consequential damages, or three month’s rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee, all of which may be applied in setoff to or in recoupment against any claim for rent owed or owing…”

with the tenant’s quiet enjoyment. Doe v. New Bedford Housing Authority, 417 Mass. 263, 284-285 (1994); Lowery v. Robinson, 13 Mass.App.Ct. 982 (1982). “The covenant of quiet enjoyment protects a tenant’s right to freedom from serious interference with his tenancy-acts or omissions that impair the character and value of the leased premises. (citations omitted).” Doe v. New Bedford Housing Authority, supra at 285.

The defendant testified that, on June 20, 2008 at approximately 2:00 p.m., he was in the parking lot at the complex, talking with Ms. Beroth. He testified that, after this conversation, Ms. Beroth caused his car to be ticketed, and that he believes this constitutes harassment. He testified that, on July 22, 2008, following a court appearance in this action, he found that his car had been ticketed a second time, and that two (2) of the plaintiff’s employees entered his apartment without notice. He testified that he has removed the car from the complex because he does not want it to be towed. Ms. Beroth testified that, in March 2008, the plaintiff sent a letter to all tenants asking them to update their vehicle information, as the Resident Handbook requires, and that the defendant did not respond to this letter. She testified that the plaintiff’s policy is to inspect the parking lot once a week for cars without resident stickers, and to give those cars a ticket which asks the owner to contact the office within five (5) days. She testified that the defendant’s car was ticketed because it did not have a resident sticker, and she did not know whose car it was. She testified that, after his car was ticketed on June 20, 2008, the defendant did not contact the office. She testified that she did not know that the car in question was the defendant’s until he filed his answer in this case on July 22, 2008. She testified that she then instructed the plaintiff’s staff not to ticket or tow the defendant’s vehicle in the future. She also testified that no repairs have ever been done in the defendant’s apartment without notice to him, and that she has no knowledge of any of the plaintiff’s employees entering his apartment on July 22, 2008. The Court credits Ms. Beroth’s testimony on these issues, and finds that there was no credible evidence at trial that the plaintiff violated G.L. c. 186, s.14 at any time during the defendant’s tenancy.

The Court finds that there was no evidence at trial that the plaintiff violated any of the provisions of G.L. c. 93A.

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 enter for the plaintiff for possession of the premises and damages for unpaid rent in the amount of $1,530.00, plus costs.

2. Judgment enter for the plaintiff on the defendant’s counterclaims.

3. Execution issue ten (10) days after the date that judgment enters.

cc: Therese Quijano, Esq.

Delabarre Sullivan

End Of Decision

HOUSING COURT

Malitta Knaut, PLAINTIFF v. Colleen Simmons and Robert Simms, DEFENDANTS

SOUTHEASTERN DIVISION

Docket # Docket No. 08-SP-00781

Parties: Malitta Knaut, PLAINTIFF v. Colleen Simmons and Robert Simms, DEFENDANTS

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: June 11, 2008

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

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

The defendants, Colleen Simmons and Robert Simms, have resided at 206 North Main Street, Apt. #1, Middleborough, MA (“the premises”) under a written tenancy at will agreement since October 15, 2004. The plaintiff, Melitta Knaut, is the owner of the premises and is the defendants’ landlord. The rent for the premises is $1,100.00 per month and is due on the first day of each month. The defendants have failed to pay the plaintiff any rent for the months of November 2007 through March 2008, owe the plaintiff a balance of $635.00 for the month of October 2007, and currently owe the plaintiff a total of $6,135.00 in unpaid rent.

The Court finds that, on January 29, 2008, the plaintiff served the defendants with a 14 Day Notice To Quit for Non-Payment of Rent.

The defendants filed a written answer and counterclaims based on breach of the implied warranty of habitability and violations of

G.L. c. 186, s.14, G.L. c. 239, s.2A, G.L. c. 186, s.18, G.L. c. 186, s.15B and G.L. c. 93A.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant Colleen Simmons testified that the defendants moved into the premises on October 14, 2004, and that she observed that there were small patches of black dots of mold on the bathroom ceiling, that the bathroom ceiling was wet, water stained and spongy, and that it was “falling into the bathtub”. She testified that she also observed that the bathroom window was broken. She testified that she called the plaintiff on October 14, 2004 to notify her of these conditions, and that the plaintiff informed her that she did not know how to fix the window and asked the defendant to do it. She testified that the plaintiff told her the ceiling was no longer leaking and asked if the defendant’s husband could repair the ceiling. She testified that she cleaned the ceiling with wire brushes and sealed it with a “stucco mix,” but it did not solve the problem. She testified that the mold keeps coming back, and so she sprays the bathroom ceiling with bleach every three (3) months because the mold returns within three (3) months. She testified that, within a few months after the defendants moved into the premises, she observed that there was “fuzzy black mold” on every window sill in the house, as well as on the linoleum floor, which is buckling. She testified that there is a horrible smell coming from the bathroom floor, and it puffs up her daughter’s eyes from allergies. She testified that she notified the plaintiff that her middle daughter has allergies, but the mold problem was never addressed. She testified that she notified the plaintiff of the mold problem twelve (12) times in the first six (6) months of the defendants’ tenancy, but that the mold problem was never resolved. The plaintiff testified that the defendants never notified her of a mold problem in the premises or that the bathroom ceiling was leaking. She also testified that she does not remember receiving any notice from the defendants of any problem with the bathroom window. The Court credits the plaintiff’s testimony on these issues.

The defendant Colleen Simmons testified that she notified the plaintiff that there are problems with the heat in the premises at some unspecified times during the defendants’ tenancy. She testified that the floor grates are not flush, that the blower is continuously on because the premises never gets warm, and that there is always cool air from the cellar when the heat is not on. She testified that the temperature is 65? when she sets the thermostat at 85?. She

testified that, at some unspecified time in June of 2005, a heating contractor came to the premises, that he informed her that the thermostat was broken, and that the thermostat was not replaced until September 2006. She testified that the heating system remains a problem, although the problem with the blower has been solved. She testified that the impact of the heat situation is that “it’s been hell.” She testified that the gas bills are $300.00 per month in the winter, that the children are cold, and she uses the oven to get warm. She testified that she used a portable temperature gauge on the night before trial-March 23, 2008–and that the temperature in the kitchen on the heat grate was 58?, the bathroom heat grate was 58?, the living room heat grate was 60?, and the temperature at the windows was 56?. She testified on cross-examination that, although the heat was a problem for four (4) winters, she did not notify the plaintiff in writing of any problem with the heat until February 2008. The plaintiff testified that the defendants did notify her by telephone about problems with the heat in the premises three (3) or four (4) times during their tenancy, that the first report may have been during the winter of 2004-2005, and that she responded to all complaints. The Court finds that the plaintiff engaged the services of Mullen Heating, a heating contractor, on September 27, 2006 with respect to the heating system at the premises, and finds that Mullen Heating installed a thermostat in the premises, cleaned and checked the gas-fired warm air furnace and replaced the air filter. The Court finds that, on November 20, 2006, Mullen Heating went to the premises to diagnose the heating system in response to a no-heat call, determined that there was no power to the furnace control circuit, and determined that the emergency switch on the first floor of the premises had been shut off. The Court finds that Mullen Heating advised the defendants that the emergency switch must be on in order for the heat to work. The Court finds that, on February 15, 2008, Mullen Heating checked and cleaned the gas-fired warm air furnace at the premises, removed a plugged air filter and replaced it, vacuumed the furnace, the burner motor and the return grill, cleaned the flame sensor, oiled the burner motor, and removed and cleaned the flue pipe. The Court credits the plaintiff’s testimony on these issues.

The defendant Colleen Simmons testified that, at some unspecified time during the defendants’ tenancy, the refrigerator in the premises began leaking and freezing up in the refrigerator compartment. She testified that she did not have a working refrigerator for a week, and that, two (2) months after the plaintiff had provided the defendants with a new refrigerator, that refrigerator began to leak water onto the floor. She testified that, when she left a message informing the plaintiff of this problem, the plaintiff did not call her back. She testified that the second refrigerator then stopped working, and she telephoned the plaintiff again, but received no reply. She testified that, when she saw the plaintiff the next day and informed her that she needed a new refrigerator, the plaintiff told her she did not have any money. She testified that she then informed the plaintiff that she had the rent check for her, and said “the refrigerator needs to be fixed.” She testified that Sears called her the next day, came to the premises the day after that, and repaired the refrigerator. She testified that the defendants did not have a working refrigerator for four (4)

days on the second occasion. The plaintiff testified that, in April 2006, the defendants informed her that the original refrigerator did not work, that she bought a new one on the same day the defendants notified her of the problem, and that the new refrigerator was delivered the next day. She testified that, when the defendants informed her that there was a problem with the second refrigerator, she returned their telephone call, and called Sears immediately. The Court credits the plaintiff’s testimony on these issues.

The defendant Colleen Simmons testified that the electricity in the premises was a problem from the inception of her tenancy. She testified that, when the upstairs tenants turn their washing machine on, all her lights “strobe.” She testified that she notified the plaintiff of this condition, and that, one (1) year after she notified the plaintiff, an electrician inspected the premises and determined that the upstairs washing machine was the problem, but it has not been repaired.

The Court finds that, on February 20, 2008[1], the Middleborough Health Department inspected the premises and found the following conditions: “Owners Installation and Maintenance Responsibilities: An electrical fixture in the living room is loose and loses power when shifted; Repair/replace electrical fixture; The heating registers are passing cold air when the heat is off; Evaluate/repair register connections and heating system. Posting of Name of Owner: The owner information is not posted; Post owner information in accordance with code. Owner’s Responsibility to Maintain Structural Elements: There is water damage present in the ceiling hallway accessing the second floor apartment; Evaluate source of water damage and repair ceiling; Weather-tight Elements: The plexi-glass window in the bathroom is falling out of the frame; Repair/replace window. Cold air drafts are present around the windows in the bathroom, bedroom and living room; Evaluate and make windows weather-tight with industry approved materials…In addition to the above cited violations, the tenant stated that the lights within the unit flicker constantly while the upstairs washing machine is running. An evaluation of the electrical supply should be done.”

The defendant Colleen Simmons testified that the electrical fixture has now been repaired, that the filter for the furnace has been replaced and the heat registers “banged down”, that the bathroom window has been repaired, that the owner’s name has not been posted at the premises, that the water damage in the hallway ceiling has not been repaired, that the drafts around the windows have not been repaired, and that the windows are not weathertight. The Court credits this testimony.

The Court finds that, on March 6, 2008, Mullen Heating removed the floor registers and found the sheet metal duct boots had been “smashed in” around the edges, that nails had been pulled away from the subfloor and that the duct boots were falling out. The Court finds that Mullen Heating determined that the registers were bent and twisted from having been pulled out and forced back in place after having been previously attached twice. The Court finds that, on March 6, 2008, Mullen Heating reattached all of the boots in question with screws, removed broken dampers, insulated the duct boots in the crawl area, replaced the air filter and checked the furnace.

The Court finds that, on March 6, 2008, Mike’s Electric, an electrical contractor, replaced the damaged outlet in the living room, replaced the defective living room plug and resecured the kitchen plug. The Court finds that Mike’s Electric investigated the issue of the lights in the premises dimming when the second floor washer was used. The Court finds that Mike’s Electric determined that the lights dim when that washer is on the delicate cycle, and that the dimming lights are not a dangerous condition, and could be caused by a voltage drop due to extra-long drop cable coming from the street.

The Court finds that there was no credible evidence at trial that there was a mold problem or that the bathroom ceiling leaked in the premises at any time during the defendants’ tenancy. Accordingly, the Court finds that the defendants are not entitled to damages under G.L. c. 239, s.8A based on these conditions.

The Court finds that there was no credible evidence at trial that the lack of a refrigerator in the premises for one (1) or two (2) separate occasions in April 2006 or the condition of the dimming lights in the premises at times when the second floor washer was in use were serious, or that these conditions endangered the health or safety of the defendants, or that they diminished the fair rental value of the premises. Accordingly, the Court finds that the existence of these conditions did not constitute a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that the defendants are not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on these conditions.

The Court finds that there was no credible evidence at trial that the plaintiff did not respond promptly to the defendants’ complaints about the heat in the premises.

The Court finds that the condition of the heat in the premises which resulted in three (3) or four (4) complaints during the defendants’ tenancy is a condition which constitutes a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that the defendants are entitled to a defense to possession under G.L. c. 239, s.8A based on this condition. The Court finds that there was no credible evidence at trial of specific dates on which the defendants notified the plaintiff of problems with the heat in the premises in relation to the specific dates on which Mullen Heating performed work on the heating system in the premises between 2004 and early 2008. The Court is unable to compute damages for these complaints for this time period, and, accordingly, does not award the defendants any damages for breach of the implied warranty of habitability with respect to the condition of the heat at the premises under G.L. c. 239, s.8A for this time period.

The Court finds that it is a reasonable inference that the condition of the heating registers which was listed in the February 20, 2008 Board of Health Report was the result of actions of the defendants to damage those registers which had previously been replaced. Accordingly, the Court finds that the defendants are not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this condition.

The Court finds that there was no evidence at trial as to the thermostat’s setting on March 23, 2008 at the time that the defendant

Colleen Simmons took the temperature readings. Accordingly, the Court finds that there was no evidence at trial as to whether the condition of the heating system on March 23, 2008 constituted a material breach of the implied warranty of habitability. The Court finds that the defendants are not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this condition.

The Court finds that the remaining conditions listed in the February 20, 2008 Board of Health Report are conditions which constitute material breaches of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that there was no credible evidence at trial that the plaintiff knew or should have known of the existence of these conditions until she received the February 20, 2008 Board of Health Report. Since the defendants were in arrears in their rent at this time, the Court finds that the defendants are not entitled to a defense to possession based on these conditions. The Court finds that the defendants are entitled to damages under G.L. c. 239, s.8A based on these conditions.

In their written answer and counterclaims, the defendants contend that the plaintiff violated G.L. c. 186, s.14 by failing to make repairs, and by allowing other tenants in the building to continually disturb the peace and quiet of the defendants.

G.L. c. 186, s.14 provides, in pertinent part: “Any lessor or landlord of any building or part thereof occupied for dwelling purposes… who directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant…shall…be liable for actual and consequential damages, or three month’s rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee, all of which may be applied in setoff to or in recoupment against any claim for rent owed or owing…”

from serious interference with his tenancy-acts or omissions that impair the character and value of the leased premises. (citations omitted).” Doe v. New Bedford Housing Authority, supra at 285. The Court finds that there was no credible evidence at trial that the plaintiff’s breach of the implied warranty of habitability constitutes a violation of G.L. c. 186, s.14. Accordingly, the Court finds that the defendants are not entitled to damages under G.L. c. 186, s.14 based on this claim.

The defendant Colleen Simmons testified that the defendants notified the plaintiff on numerous occasions during their tenancy that the upstairs tenants were noisy and were disturbing the defendants’ quiet enjoyment of the premises. She testified that she learned that the plaintiff had made one (1) call to the prior tenant saying that her complaints “were silly.” She testified that she made friends with that tenant and the “problems stopped.” She testified that this occurred in August 2006, but that the tenant moved 1€ months later. She testified that the plaintiff told her that the new tenants would be a mother with a special needs child, but the new tenants actually were a man and his 18 year old son, then a woman with three (3) teenagers and a 10 year old joined them. She testified that these tenants play loud rock music, there are teenagers in the front yard engaging in sexual activity, that they “smoke weed” in the yard, and leave trash in the yard. She testified that the defendants have not slept through the night since 2007, that the current tenants “party day and night”, that they block her car in, that there are men on the premises calling her names, and that there are beer cans and pizza boxes all over the yard. She testified that she notified the plaintiff of this problem, but the plaintiff told her that it is her problem to work out with them, and not her problem to fix. She testified that the plaintiff told her to report the tenants to the Middleborough Housing Authority Section 8 office and gave her the number to call. She testified that the person with whom she spoke at the Middleborough Housing Authority Section 8 office told her that the plaintiff was responsible and she should not call. She testified that she called the Middleborough Police Department to report that there were strangers moving into the premises and covering their license plates, but subsequently testified that she did not call the police about the noise because she is afraid of retaliation by the tenants.

The plaintiff testified that the defendant Colleen Simmons has complained about all three (3) sets of tenants who have lived upstairs during her tenancy. She testified that she spoke to the first tenant about noise on one (1) occasion, and spoke to the second tenant twice about noise, but did not take any action to evict that tenant. She testified that the current tenant is occupying the premises under a Middleborough Housing Authority Section 8 Lease, and that the authorized occupants of that apartment are the tenant and her four (4) children. She testified that the first complaint she received from the defendant Colleen Simmons about the current tenant was in January 2008, and that this complaint was about an unauthorized occupant. She testified that she spoke to that tenant about the man living there, and that the tenant is in the process of adding him to her lease. The Court credits the plaintiff’s testimony on these issues. The Court finds that there was no credible evidence

at trial that the plaintiff’s response to the defendant Colleen Simmons’ complaints about noise from the upstairs apartment or the activities of the other tenants in the building in which the premises is located constitutes a violation of G.L. c. 186, s.14. Accordingly, the Court finds that the defendants are not entitled to damages under G.L. c. 186, s.14 based on this claim.

proceeded with or obtained relief in such action, (or)..made such report..shall create a rebuttable presumption that such summary process is a reprisal against the tenant for engaging in such activities…Such presumption may be rebutted only by clear and convincing evidence[4] that such action was not a reprisal against the tenant, and that the plaintiff 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, even if the tenant had not…engaged in such activity.”

The Court finds that, on January 17, 2008, the defendant Colleen Simmons sent the plaintiff written notification that she had stopped payment on the last check she had given the plaintiff and placed it in an escrow account, that the defendants were withholding their rent until the plaintiff dealt with the disturbances created by the upstairs tenants at the premises, that she had spoken to an attorney about her rights as a tenant, and that she was investigating whether she had grounds to sue the plaintiff in connection with the disturbances and noise created by the upstairs tenants at the premises. The Court finds that the plaintiff served the defendants with the 14 Day Notice To Quit for Non-Payment of Rent which forms the basis of this action on January 29, 2008. The Court finds that the defendants are entitled to the statutory presumption under G.L. c. 239, s.2A, and finds, on the facts of this case, that the plaintiff has not shown by clear and convincing evidence that she had sufficient independent justification for taking such action, or that she would have in fact taken such action, in the same manner and at the same time the action was taken, even if the defendants had not notified her that they were withholding their rent. The Court finds that the plaintiff’s act of serving the defendants with the Notice To Quit on January 29, 2008 constitutes a reprisal against the defendants for their January 17, 2008 letter to the plaintiff notifying her that they were withholding rent. Accordingly, the Court finds that the defendants are entitled to a defense to possession under G.L. c. 239, s.2A based on this claim. G.L. c. 186, s.18 provides, in pertinent part: “Any person or agent thereof

who threatens to or takes reprisals against any tenant of residential premises for the tenant’s act of commencing, proceeding with, or obtaining relief in any judicial or administrative action the purpose of which action is to obtain damages under, or otherwise enforce, any federal, state or local law, regulation, by-law or ordinance, which has as its objective the regulation of residential premises; or…reporting to the board of health or, in the city of Boston, to the commissioner of housing inspection or to any other board having as its objective the regulation of residential premises; or reporting or complaining of such violation or a suspected violation in writing to the landlord or to the agent of the landlord…shall be liable for damages which shall not be less than one month’s rent or more than three months’ rent, or the actual damages sustained by the tenant, whichever is greater, and the costs of the suit, including a reasonable attorney’s fee. The receipt of any notice of termination of tenancy except for non-payment of rent or, of increase in rent or, of any substantial alteration in the terms of tenancy within six months after the tenant has…made such report or complaint…shall create a rebuttable presumption that such notice or other action is a reprisal against the tenant for engaging in such activities. Such presumption shall be rebutted only by clear and convincing evidence that such person’s action was not a reprisal against the tenant and that such person 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 tenant engaging in, or the belief that tenants had engaged in, activities protected under this section.”

The Court finds that, since the Notice To Quit which forms the basis for this action was for non-payment of rent, the defendants are not entitled to the statutory presumption of retaliation under G.L. c. 186, s.18. The Court finds that, on the facts of this case, the defendants have shown by a preponderance of the evidence that the plaintiff’s act of serving the defendants with the Notice To Quit on January 29, 2008 constitutes a reprisal for the defendants’ January 17, 2008 notification to the plaintiff that they were withholding rent. Accordingly, the Court finds that the defendants are entitled to damages under G.L. c. 186, s.18 in the amount of $3,300.00, which represents three (3) months rent, plus reasonable attorney’s fees.

In their written answer and counterclaims, the defendants contend that the plaintiff violated the provisions of G.L. c. 186, s.15B (last month’s rent).

G.L. c. 186, s.15B(2)(a) provides, in pertinent part: “…Any lessor or his agent who receives said rent in advance for the last month of tenancy shall, beginning with the first day of tenancy, pay interest at the rate of five per cent per year…Such interest shall be paid over to the tenant each year as provided in this clause…Interest shall not accrue for the last month for which rent was paid in advance. At the end of each year of tenancy, such lessor shall give or send to the tenant from whom rent in advance was collected a statement which shall indicate the amount payable by such lessor to the tenant. The lessor shall at the same time give or send to such tenant the interest which is due or shall notify the tenant that he may deduct the interest from the next rental payment of such tenant. If, after thirty days from the end of each year of the tenancy, the tenant has not received said interest due or said notice

to deduct the interest from the next rental payment, the tenant may deduct from his next rent payment the interest due…”

The defendant Colleen Simmons testified that, on October 8, 2004, the defendants gave the plaintiff $1,100.00 as a last month’s rent, and that the plaintiff has not paid the defendants any interest on the last month’s rent or notified them annually that they could deduct the interest from their next rental payment. The plaintiff testified that she did not pay the defendants any interest on their last month’s rent. The Court credits the parties’ testimony on this issue.

The Court finds that the plaintiff has not paid the defendants any interest on their last month’s rent. Accordingly, the Court finds that the defendants are entitled to damages under G.L. c. 186, s.15B(2)(a) in the amount of $201.45, calculated as follows: $1,100.00 x 5% = $55.00/yr. ? 365 = $.15/day x 1,343[5] = $201.45, plus reasonable attorney’s fees.

In their written answer and counterclaims, the defendants contend that the plaintiff has violated the provisions of G.L. c. 93A.

The plaintiff testified that she owns the two (2) rental units in the building in which the premises is located, and also owns four rental units in an adjacent building in Middleborough, MA. She testified that she also owns a building in Somerville with three rental units. The Court finds that the plaintiff is engaged in the trade or business of real estate and finds that the plaintiff is subject to the provisions of G.L. c. 93A.

940 CMR 3.17(1) provides, in pertinent part: “It shall be an unfair or deceptive act or practice for an owner to…(1) fail to comply with the State Sanitary Code or any other law applicable to the conditions of a dwelling unit within a reasonable time after notice of a violation of such code or law from the tenant or agency.”

The Court finds that there was no credible evidence at trial that the plaintiff’s breach of the implied warranty of habitability constitutes a violation of G.L. c. 93A. A landlord violates G.L. c. 93A when the Court finds that the breach of the implied warranty of habitability is material and substantial. Cruz Management Co., Inc. v. Thomas, 417 Mass. 782 (1994); Dorgan v. Loukas, 19 Mass.App.Ct. 959 (1985). Accordingly, the Court finds that the defendants are not entitled to damages under G.L. c. 93A based on this claim.

940 CMR 3.17(4)(k) provides, in pertinent part: “It shall be an unfair or deceptive practice for an owner to: (k) otherwise fail to comply with the provisions of M.G.L. c. 186, s.15B.” The Court finds that the plaintiff’s failure to pay any interest to the defendants on their last month’s rent constitutes a violation of G.L. c. 93A. The Court finds that this violation was not willful or knowing and finds that the defendants are not entitled to double damages under G.L. c. 93A, s.9 based on this violation. Accordingly, the Court finds that the defendants are entitled to statutory damages in the amount of $25.00, plus reasonable attorney’s fees, based on this claim.

940 CMR 3.17(6)(b) provides: “It shall be an unfair and

deceptive practice for an owner to: (b) Retaliate or threaten to retaliate in any manner against a tenant for exercising or attempting to exercise any legal rights as set forth in M.G.L. c. 186, s.18.” The Court finds that the plaintiff’s violation of G.L. c. 186, s.18 constitutes a violation of G.L. c. 93A, and finds that this violation was willful or knowing. Accordingly, the Court finds that the defendants are entitled to an award of double damages under G.L. c. 93A, s.9 in the amount of $6,600.00 for this violation, plus reasonable attorney’s fees.

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 enter for the defendants for possession under G.L. c. 239, s.2A.

2. Judgment enter for the plaintiff for damages for unpaid rent in the amount of $6,135.00, plus costs in the amount of $199.00, a total of $6,334.00

3. Judgment enter for the defendants on their counterclaim for breach of the implied warranty of habitability in the amount of $361.50.

4. Judgment enter for the defendants on their counterclaim under G.L. c. 186, s.15B(2)(a) in the amount of $201.45, plus reasonable attorney’s fees.

5. Judgment enter for the defendants on their counterclaim under G.L. c. 93A in the amount of $6,625.00, plus reasonable attorney’s fees.

6. Judgment enter for the plaintiff on the defendants’ remaining counterclaims.

7. The foregoing orders for judgment paragraphs 2 through 6 result in a net judgment for the defendants in the amount of $853.95, plus attorney’s fees.

8. Within ten (10) days of the date that judgment enters, the defendants shall file with this Court a Motion for Counsel Fees, Costs and Expenses in accordance with the procedure prescribed in Yorke Mgmt. v. Castro, 406 Mass. 17, 20 (1989). Counsel shall also submit an affidavit and mark the matter for a hearing. After hearing, the Court shall enter final judgment including an award of reasonable attorney’s fees and costs nunc pro tunc to the date of this decision.

cc: William B. O’Leary Esq.

Marjorie A. Adams, Esq.

End Of Decision

HOUSING COURT

Malitta Knaut v. Colleen Simmons and Robert Simms

SOUTHEASTERN DIVISION

Docket # 08-SP-00781

Parties: Malitta Knaut v. Colleen Simmons and Robert Simms

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: July, 2008

ORDER

After hearing on the defendants’ Motion For Award of Attorney’s Fees and Costs, the Court rules as follows: Following a trial on the merits of this action, the defendants prevailed on their counterclaims under G.L. c. 186, s.15B and G.L. c. 93A, each of which provides for the recovery of reasonable attorney’s fees. In evaluating a request for an award of attorneys 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, 379 Mass. 381, 388-9 (1979). See Heller v. Silverbranch Construction Corp., 376 Mass. 621, 629 (1978). (“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”). However, the actual amount of the attorney’s fee is largely discretionary with the trial judge. Linthicum, supra at 388.

The Court has reviewed the Affidavit submitted by Attorney Marjorie A. Adams, who was the defendants’ trial counsel in this action. The Court had the opportunity to observe Ms. Adams during the trial of this action. While the legal issues were not complex, there were significant factual disputes. Ms. Adams represented her

clients skillfully, and her clients recovered a judgment on their counterclaims under G.L. c. 186, s.15(B) and G.L. c. 93A. The Court considers Ms. Adams’ hourly rate of $195.00 to be fair and reasonable given her experience. Her rate is within the range of hourly rates charged by attorneys of similar experience in the Plymouth area. At the hearing on this motion, Ms. Adams represented that, since the submission of her Affidavit, she had incurred an additional 2.5 hours of time in court appearances related to the hearing on this motion. The Court credits this representation, and finds that Ms. Adams has expended a total of 30.2 hours of time in this action.

At the hearing on this motion, counsel for the plaintiff appeared in opposition on the ground that the total amount of attorney’s fees was excessive for a summary process action and that portions of the time expended were to prepare for hearings that ultimately did not occur.

After reviewing Ms. Adams’ Affidavit and her representations at the hearing on this motion, the Court finds that 21.25 hours of Ms. Adams’ time is reasonably attributable to those counterclaims upon which the defendants prevailed at trial and for which she is entitled to attorney’s fees in this action. Accordingly, the Court finds that Ms. Adams is entitled to an award of attorney’s fees in the amount of $4,143.75.

The Court finds that the $16.70 in costs for photocopies which the defendants incurred in this action is reasonable and represents costs for which the defendants are entitled to be reimbursed.

The defendants’ Motion For Award of Counsel Fees and Costs is ALLOWED, as follows:

1. The Court awards Ms. Adams reasonable attorney’s fees in the amount of $4,143.75, plus costs in the amount of $16.70, a total of $4,160.45, to be paid by the plaintiff no later than thirty (30) days from the date of this Order.

2. This Order shall enter nunc pro tunc to June 12, 2008.

End Of Decision

HOUSING COURT

Maryann McCarthy PLAINTIFF v. Jean Etienne and Huguette Semerzier

DEFENDANTS

Docket # Docket No. 08-SP-01556

Parties: Maryann McCarthy PLAINTIFF v. Jean Etienne and Huguette Semerzier DEFENDANTS

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: June 6, 2008

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

This is a summary process action in which the plaintiff seeks to recover possession of the premises from the defendants and damages for unpaid rent. The defendant Huguette Semerzier did not appear for trial and was defaulted.

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

The defendants, Jean Etienne and Huguette Semerzier, resided at 24 James Street, 1st floor, Taunton, MA (“the premises”) as tenants at will from February 2008 until April 15, 2008. The plaintiff, Maryann McCarthy, is the owner of the premises and is the defendants’ landlord. The rent for the premises is $900.00 per month.

The plaintiff testified that she gave the defendants the keys to the premises on January 30, 2008 for a tenancy beginning February 1, 2008, and that rent is due on the first day of each month. She testified that, on February 14, 2008, the defendants paid her $1,300.00 and that they have not paid her any other rent. She also testified that the defendants did not notify her that they had vacated the premises, and that she did not know they had done so until trial. The defendant Jean Etienne testified that the defendants moved into the premises on February 14, 2008 and that, therefore, the monthly rent is due on the 15th day of each month. He testified that the defendants paid the plaintiff a total of $1,400.00

in rent. The Court credits the plaintiff’s testimony on these issues, and finds that, since the defendants received the keys to the premises on January 30, 2008 for a tenancy beginning February 1, 2008, the rent is due on the first day of each month. The Court finds that, since the plaintiff did not know that the defendants had vacated the premises until May 20, 2008-the date of the trial in this action-they remain responsible for the payment of rent through May 2008. Applying the defendants’ rental payment of $1,300.00 to the most aged balance of the arrears, the Court finds that the defendants have failed to pay the plaintiff any rent for the months of April 2008 and May 2008, owe a balance of $500.00 for March 2008, and currently owe the plaintiff a total of $2,300.00 in unpaid rent.

The Court finds that, on April 4, 2008, the plaintiff served the defendants with a 14 Day Notice To Vacate for Non-Payment of Rent-Tenant At Will.

At trial, the defendant Jean Etienne testified that the defendants did not have any hot water when they moved into the premises, and that they did not have hot water for 3 or 4 weeks.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

G.L. c. 186, s.14 provides, in pertinent part: “Any lessor or landlord of any building or part thereof occupied for dwelling purposes… who is required by law…to furnish water, hot water, heat, light, power, gas…to any occupant of such building or part thereof, who willfully or intentionally fails to furnish such water, hot water, heat, light, power, gas…at any time when the same is necessary to the proper or customary use of such building or part thereof,…or who transfers the responsibility for payment for any utility services to the occupant without his knowledge or consent, or any lessor or landlord who directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant…shall…be liable for actual and consequential damages, or three month’s rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee, all of which may be applied in setoff to or in recoupment against any claim for rent owed or owing…”

enjoyment. Doe v. New Bedford Housing Authority, 417 Mass. 263, 284-285 (1994); Lowery v. Robinson, 13 Mass.App.Ct. 982 (1982). “The covenant of quiet enjoyment protects a tenant’s right to freedom from serious interference with his tenancy-acts or omissions that impair the character and value of the leased premises. (citations omitted).” Doe v. New Bedford Housing Authority, supra at 285.

The plaintiff testified that the parties agreed that utilities were not included in the rent. She testified that, at the inception of the defendants’ tenancy, she put 150 gallons of oil into the tank, and did not realize that the hot water tank was gas. She testified that she went to Florida for seven days beginning February 16, 2008, and that she fixed the hot water problem when she came back from Florida. She testified that she had the gas turned on in her name, and told the defendants to put the gas into their names. She testified that the defendants never did so, and that, on March 21, 2008, she told the gas company to shut off the gas. She testified that she did so because the defendants had not paid rent and had not put the gas into their names. She testified that, when the Taunton Board of Health informed her on April 4, 2008 that she had to restore the gas to the premises, she did so, and the gas was restored on Monday, April 7, 2008. The Court credits this testimony.

The Court finds that the plaintiff’s action in causing the gas to the premises to be shut off for the eighteen day period between March 21, 2008 and April 7, 2008, as well as her failure to provide gas service to the defendants for seven days at the inception of their tenancy, constitutes a serious interference with the defendant Jean Etienne’s quiet enjoyment of the premises. Accordingly, the Court finds that the defendant Jean Etienne is entitled to damages under G.L. c. 186, s.14 in the amount of $2,700.00, which represents three (3) months rent, based on this claim.

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 enter for the plaintiff as to the defendant Jean Etienne for damages for unpaid rent in the amount of $2,300.00, plus costs in the amount of $185.91, a total of $2,485.91.

2. Judgment enter for the defendant Jean Etienne on his counterclaim under G.L. c. 186, s.14 in the amount of $2,700.00.

3. The foregoing orders for judgment paragraphs 1 and 2 result in a net judgment for the defendant Jean Etienne in the amount of $214.09.

4. Execution issue ten (10) days after the date that judgment enters.

cc: Maryann McCarthy

Jean Etienne

Huguette Semerzier

End Of Decision

HOUSING COURT

Jose Medeiros PLAINTIFF v. Sandra Bolarinho DEFENDANT

Docket # Docket No. 08-SP-03857

Parties: Jose Medeiros PLAINTIFF v. Sandra Bolarinho DEFENDANT

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: October 21, 2008

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

This is a summary process action in which the plaintiff seeks to recover possession of the premises from the defendant and damages for unpaid rent.

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

The defendant, Sandra Bolarinho, has resided at 107 Rivet Street, 2nd Floor, New Bedford, MA as a tenant at will at all times relevant to this action. The plaintiff, Jose Medeiros, is the owner of the premises and is the defendant’s landlord.

The plaintiff testified that the rent for the premises was $150.00 per week through July 2008, was increased to $200.00 per week effective August 2008, and that the rent is due each Monday for the week just ended. He testified that the defendant has failed to pay him any rent for the weeks of August 18, 2008 through October 6, 2008, and currently owes him a total of $1,600.00 in unpaid rent. The defendant testified that she never agreed to the rent increase, and that she informed the plaintiff that she could not afford to pay the rent increase. The Court credits the defendant’s testimony on this issue, and finds that the rent for the premises remained at $150.00 per week at all times relevant to this action. The Court finds that rent is due each Monday for the week just ended, finds that the defendant has failed to pay the plaintiff any rent for the weeks of August 18, 2008 through October 6, 2008, and currently owes the plaintiff a total of $1,200.00 in unpaid rent.

The Court finds that, on September 3, 2008, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent-Tenant At Will.

At trial, the defendant testified that there has been a mice infestation at the premises.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant testified that, in May 2008 or June 2008, she notified the plaintiff that there were mice in the premises. She testified that the plaintiff gave her a glue trap, but that it did not solve the problem. She testified that, on September 6, 2008, she paid Sherman Termite & Pest Control, Inc. $150.00 to eliminate the mice infestation, and that she had not had any further problems since that time. The Court credits the defendant’s testimony on this

issue.

The Court finds that the mice infestation in the premises is a condition which constitutes a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that the defendant is entitled to a defense to possession and to damages under G.L. c. 239, s.8A with respect to this condition.

The Court finds that the plaintiff benefitted from the defendant’s expenditure of $150.00 to eliminate the mice infestation in the premises, and finds that the defendant is entitled to damages in the amount of $150.00 on the theory of quantum meruit.

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 enter for the plaintiff for damages for unpaid rent in the amount of $1,200.00, plus costs in the amount of $170.00, a total of $1,370.00.

2. Judgment enter for the defendant on her counterclaim for breach of the implied warranty of habitability in the amount of $523.32.

3. Judgment enter for the defendant for damages on the theory of quantum meruit in the amount of $150.00.

4. The foregoing order for judgment paragraphs 1 through 3 result in a net judgment for the plaintiff for damages in the amount of $526.68, plus costs in the amount of $170.00, a total of $696.68.

5. Judgment enter for the defendant for possession pursuant to the fifth paragraph of G.L. c. 239, s.8A, on the condition that within seven (7) days of her receipt of this ORDER, the defendant deposits with the Clerk of this Court, the sum of $526.68, plus costs in the amount of $170.00, a total of $696.68, in the form of cash, certified check, cashier’s check, or money order, payable to the plaintiff. If this deposit is made, the Clerk shall immediately release all funds held by the Court to the plaintiff. If the deposit is not made, judgment shall automatically enter in favor of the plaintiff for possession and damages in the amount of $526.68, plus costs in the amount of $170.00, a total of $696.68, on the next business day following the expiration of the tenth (10th) day from the date of this Order.

cc: Jose Medeiros

Sandra Bolarinho

————————-

[1] The defendant testified that the mice infestation began in May 2008 or June 2008. Since the Court is unable to determine the exact date on which this condition arose, the Court will use the date of June 1, 2008 in calculating damages.

[2] The per diem rental amount is calculated as follows: $150.00 x 52 = $7,800.00 ? 365 = $21.37.

End Of Decision

HOUSING COURT

William McNamara PLAINTIFF v. Anthony Johnson DEFENDANT

Docket # Docket No. 08-CV-00134

Parties: William McNamara PLAINTIFF v. Anthony Johnson DEFENDANT

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: July 1, 2008

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

This matter came before the Court for a trial on the merits of the plaintiff’s Complaint for injunctive relief. On March 13, 2008, this Court (Edwards, J.) entered a Temporary Restraining Order requiring the defendant to desist and refrain from: “1) Failing to provide the plaintiff with heat, hot water and continuous electrical service at the premises…2) Removing the plaintiff’s name from the mailbox and mail at the above premises. 3) Threatening, harassing and/or causing bodily harm to the plaintiff at the above premises.” On March 27, 2008, this Court (Edwards, J.) entered a Preliminary Injunction as follows: “1. The defendant to provide heat, hot water and electricity to the plaintiff’s apartment until further order of the court. 2. The defendant to change front door locks and provide keys to the plaintiff at the defendant’s expense prior to 5:00 p.m. 3/27/08. 3. On both #1 and #2, the defendant to keep copies of all receipts pending further hearing.” On April 8, 2008, this Court (Edwards, J.) found the defendant in contempt of the March 27, 2008 order and found that he could purge the contempt as follows: “The defendant is ordered pursuant to Temporary Restraining Order of 3/13/08 and Preliminary Injunction Order of 3/27/08 to provide at his own expense heat, hot water, and electricity to the plaintiff’s apartment pending further order of the Court. The defendant may purge contempt by providing evidence and testimony at next hearing that he has complied with this Order. Further, the defendant is to provide documentation and/or testimony regarding the electrical system serving the plaintiff’s premises. The plaintiff to permit access to premises with reasonable notice through counsel for the defendant’s electrician to view electrical system. The defendant is to keep records of all receipts for utilities provided to premises per previous Order on Preliminary Injunction.” On April 15, 2008, the Court found that the defendant had purged his contempt and continued the Preliminary Injunction in effect pending further order of the Court following a trial on the merits of the summary process action between the parties, Johnson v. McNamara No. 08-SP-01128. The Findings of Fact, Rulings of Law and Order for Judgment in that action are dated June 30, 2008.

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

The plaintiff, William McNamara, has resided at 78 Winthrop

Street, Apt. 1, Taunton, MA (“the premises”) since December 2007. The defendant, Anthony Johnson, is the owner of the premises and is the defendant’s landlord.

The defendant testified that there is no written letting agreement between the parties, and that the plaintiff is responsible for payment of oil and all utilities. He also testified that there are two (2) oil burners in the basement of the building in which the premises is located, and that one (1) oil burner serves both apartments on the first floor. The Court credits this testimony.

In its Findings of Fact, Rulings of Law and Order for Judgment dated June 30, 2008, the Court (Chaplin, J.) found that the defendant’s transfer of the responsibility for payment of the oil and the utilities to the plaintiff in the absence of a written letting agreement constituted a serious interference with the plaintiff’s quiet enjoyment of the premises under G.L. c. 186, s.14. Accordingly, the Court finds that the defendant is responsible for payment of oil and all utilities in the premises so long as the plaintiff occupies the premises.

In its Findings of Fact, Rulings of Law and Order for Judgment dated June 30, 2008, the Court (Chaplin, J.) found that the defendant had changed the locks to the front door of the building in which the premises is located. Accordingly, the Court finds that the defendant is under an obligation to provide the plaintiff with a working key to the front door of the building in which the premises is located so long as the plaintiff occupies the premises.

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. The defendant shall provide heat, hot water and electricity to the plaintiff’s apartment located at 78 Winthrop Street, Apt. 1, Taunton, MA at the defendant’s sole expense so long as the plaintiff occupies the premises; and

2. The defendant shall provide the plaintiff with working keys to the front door lock at 78 Winthrop Street, Taunton, MA at the defendant’s sole expense so long as the plaintiff occupies the premises.

cc: Alan F.F. Medeiros, Esq.

Anthony Johnson

End Of Decision

HOUSING COURT

Eric J. Nee PLAINTIFF v. Gina Lunardo DEFENDANT

Docket # Docket No. 08-SP-03030

Parties: Eric J. Nee PLAINTIFF v. Gina Lunardo DEFENDANT

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: September 18, 2008

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

This is a summary process action in which the plaintiff seeks to recover possession of the premises from the defendant and damages for unpaid rent [1]. The defendant filed a written answer 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 defendant, Gina Lunardo, has resided at 50 Samoset Street, Apt. 1, 1st flr., Plymouth, MA (“the premises”) as a tenant under a written lease from April 17, 2006 through March 31, 2007, and as a tenant at will thereafter [2]. The plaintiff, Eric J. Nee, is the owner of the premises and is the defendant’s landlord. The rent for the premises is $1,250.00 per month and is due on the first day of each month, no later than the fifth day of each month. The defendant has failed to pay the plaintiff any rent for the months of July 2008 and August 2008, and currently owes the plaintiff a total of $2,500.00 in unpaid rent.

The Court finds that, on July 17, 2008, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Vacate for Non-Payment of Rent.

The defendant filed a written answer and counterclaims based on breach of the implied warranty of habitability and violations of G.L. c. 186, s.15B.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant testified that both the lease between the parties and the written tenancy at will agreement required that the plaintiff maintain the property and remove the trash and the snow, but that he did not do so. She testified that, as of August 4, 2008, there was an accumulation of four (4) weeks of trash at the premises, along with maggots and flies. She testified that, after one of her neighbors complained to the plaintiff about this condition, he hired a company to remove the trash. The Court credits this testimony.

The defendant testified that, throughout her tenancy, the plaintiff did not remove the snow or mow the grass. The plaintiff testified that, at the inception of her tenancy, the defendant agreed to mow the lawn, and testified that his lawnmower is broken, so the lawn has not been mowed for a month. The Court credits the defendant’s testimony with respect to snow removal and credits the plaintiff’s testimony with respect to mowing the lawn.

The defendant testified that there are no carbon monoxide detectors at the premises, and that the smoke detectors do not work. She testified that there was no heat on one floor of the premises last winter, and that, of the sixteen windows in the premises, only four (4) have storm windows. The plaintiff testified that the smoke detectors work, and that, on July 16, 2008, he installed the carbon monoxide detectors. The Court credits the defendant’s testimony with

respect to the lack of heat and storm windows, and credits the plaintiff’s testimony with respect to the smoke detectors and the carbon monoxide detectors.

The defendant testified that, when she stopped paying rent in July 2008, the plaintiff told her to make a list of conditions that needed to be repaired. She testified that she did so and that she gave the list to the plaintiff on July 12, 2008. The Court finds that this list contained the following conditions: “1. 9 windows: no blinds, no storm windows; 2. Water heater not working properly. Water scalding hot. Turned water heaters (2) 1st fl.and basement down. 3. Dogs (2) on second floor need to be on leashes and cleaned up after. 4. 2nd floor guest: (1) has repeatedly acted inappropriately by urinating outside my daughter’s window. There is no screen or blind. He should not be anywhere near there. (2) threatened to have cars towed in driveway because he had to get out. (5) Refridgerat (sic) failing. 6. Front door (common hallway) broke (pressure thing). 7. Washer only gets hot water, leaking repeatedly. 8. Front door bell and back door bell, no working doorbells. 9. Mold growing in common hallway (back) due to leaks. Water stains on ceiling from 2nd floor leaks.”

The defendant testified that she had notified the plaintiff two (2) years ago that the refrigerator in the premises did not work properly, and that he informed her that it was her responsibility to provide a refrigerator. She testified that the refrigerator stopped working completely on August 18, 2008, and that, three (3) days later, she purchased a new refrigerator for $249.00. The Court credits this testimony.

The defendant testified that, on July 10, 2008, the second floor tenant’s guest was urinating outside her daughter’s bedroom window and that she told the plaintiff about this problem. The plaintiff testified that a woman across the street saw a man urinating in the flower bed while holding onto a door. He testified that the defendant’s daughter’s bedroom window is at least five feet from that door. He testified that he spoke to this man about this issue, and that there has been no further problem. The Court credits the plaintiff’s testimony on this issue.

The defendant testified that the second floor tenant’s male cat was not fixed and was spraying. She testified that the tenant went on vacation for a month and left the cat with € bag of cat food. She testified that she told the plaintiff that the cat had been abandoned and asked him to remove the cat from the hallway of the building. She testified that he told her to do it herself, and to put the cat “in a f***ing cage”. The plaintiff testified that he did not swear at the defendant, but that he did tell her not to worry so much about the upstairs tenant. He testified that he purchased a cat carrier in order to take the cat to a shelter, but that he was unable to find the cat when he went to the premises. The Court credits the plaintiff’s testimony on these issues.

The defendant testified that she told the plaintiff about the lack of storm windows in October 2006, that she notified the plaintiff in June 2008 that the water heater was scalding, that the two (2) dogs were not on leashes for six (6) weeks, and that the pressure gauge on the common hallway door broke on July 11, 2008. She testified that only the hot water worked on the washing machine,

that she asked the plaintiff in February 2007 to repair the washer, that he did not, and that she reversed the controls herself. The plaintiff testified that the defendant did not notify him of any problems with the water heater, the common hallway door, or the water stains on the ceiling prior to July 12, 2008, and testified that he was aware that there were no door bells. The Court credits the plaintiff’s testimony with respect to the water heater, the common hallway door, the water stains on the ceiling and the door bells, and credits the defendant’s testimony on the remaining issues.

The plaintiff testified that, on July 16, 2008, the defendant notified him that a light was broken and he installed a new light on the same day. The Court credits this testimony.

The Court finds that, since the defendant agreed to mow the lawn at the premises, she is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this claim.

The Court finds that there was no credible evidence at trial that the defendant notified the plaintiff of the lack of heat in the premises during the winter of 2007-2008, and finds that there was no credible evidence at trial that the smoke detectors in the premises were not working at any time during the defendant’s tenancy. Accordingly, the Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on these conditions.

The State Sanitary Code, 105 CMR 410.100 provides, in pertinent part: “(A) Every dwelling unit…shall contain suitable space to store, prepare and serve foods in a sanitary manner. The owner shall provide within this space:…(3) space and proper facilities for the installation of a refrigerator.” The Court finds that there was no evidence at trial that the plaintiff was responsible for providing a refrigerator to the defendant at any time during her tenancy. Accordingly, the Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this condition.

The State Sanitary Code, 105 CMR 410.501 provides: “(A) A window shall be considered weathertight only if: (1) all panes of glass are in place, unbroken and properly caulked; and (2) the window opens and closes fully without excessive effort; and (3) exterior cracks between the prime window frame and the exterior wall are caulked; and (4) one of the following conditions is met: (a) a storm window is affixed to the prime window frame, with caulking installed so as to fill exterior cracks between the storm window frame and the prime window frame; or (b) weatherstripping is applied such that the space between the window sash and the prime window frame is no larger than 1/16 inch at any point on the perimeter of the sash, in the case of double-hung windows and 1/32 inch in the case of casement windows; or (c) the window sash is sufficiently well-fitted such that, without weatherstripping, the space between the window sash and the prime window frame is no larger than 1/16 inch at any point on the perimeter of the sash in the case of double hung windows and 1/3 inch in the case of casement windows.” The Court finds that there was no evidence at trial that the lack of storm windows in the premises constituted a violation of the State Sanitary Code. Accordingly, the Court finds that the existence of this condition does not constitute a material breach of the implied warranty of habitability. Boston

Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this condition.

The Court finds that there was no credible evidence at trial that the plaintiff knew or should have known of the existence of the following conditions prior to receiving the July 12, 2008 list from the defendant: the water heater, the front common hallway door, the mold in the common hallway, and the water stains on the ceiling. The Court finds that, since the defendant was already in arrears in her rent at the time the plaintiff was notified of these conditions, she is not entitled to a defense to possession under G.L. c. 239, s.8A based on these conditions. The Court finds that the defendant is entitled to damages under G.L. c. 239, s.8A based on these conditions.

The Court finds that there was no credible evidence at trial that the lack of blinds in the premises, the broken light, the lack of door bells, the isolated occurrence of the second floor tenant’s guest urinating outside the premises, the abandoned cat, or the presence of the second floor tenant’s dogs were serious, or that these conditions endangered the health or safety of the defendant, or that they diminished the fair rental value of the premises. Accordingly, the Court finds that the existence of these conditions did not constitute a material breach of the implied warranty of habitability. Id. The Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on these conditions.

The Court finds that the accumulation of trash outside the premises, as well as the absence of a carbon monoxide detector, and the water heater, the front common hallway door, the mold in the common hallway, and the water stains on the ceiling set out in the July 12, 2008 list which the defendant gave to the plaintiff are conditions which constitute material breaches of the implied warranty of habitability. Id. The Court finds that the defendant is entitled to a defense to possession under G.L. c. 239, s.8A with respect to the lack of carbon monoxide detectors, since she was not in arrears in her rent at the time the plaintiff became responsible for installing them. Since the defendant was in arrears in her rent at the time the plaintiff learned of the existence of the remaining conditions, she is not entitled to a defense to possession under G.L. c. 239, s.8A based on these conditions. The Court finds that the defendant is entitled to damages under G.L. c. 239, s.8A based on these conditions.

The Court finds that there was no evidence at trial as to how many times the defendant removed snow at the premises during her tenancy, and no evidence at trial as to the period of time during which the controls on the washing machine were reversed, so the Court is unable to award damages to the defendant under G.L. c. 239, s.8A based on these conditions.

defects is $1,250.00 per month. The Court finds that the defendant is entitled to the following rent abatements: (1) for the accumulated trash at the premises for the 28 day period between July 8, 2008 and August 4, 2008, ten per cent (10%); (2) for the lack of a carbon monoxide detector in the premises for the 822 day period between April 17, 2006 and July 16, 2008, five per cent (5%), and (3) for the water heater, the front common hallway door, the mold in the common hallway, and the water stains on the ceiling set out in the July 12, 2008 list which the defendant gave to the plaintiff for the 45 day period between July 12, 2008 and August 25, 2008, five per cent (5%), calculated as follows: ($41.10/day [3] x 10% = $4.11 x 28 = $115.08) + ($41.10/day x 5% = $2.06 x 822 = $1,693.32) + ($41.10/day x 5% = $2.06 x 45 = $92.70) = $1,901.10.

The Court finds that there was no evidence at trial that the plaintiff violated any of the provisions of G.L. c. 186, s.15B. Accordingly, the Court finds that the defendant is not entitled to a defense to possession or to damages based on this claim.

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 enter for the plaintiff for damages for unpaid rent in the amount of $2,500.00, plus costs in the amount of $188.00, a total of $2,688.00.

2. Judgment enter for the defendant on her counterclaim for breach of the implied warranty of habitability in the amount of $1,901.10.

3. Judgment enter for the plaintiff on the defendant’s remaining counterclaim.

4. The foregoing order for judgment paragraphs 1 through 3 result in a net judgment for the plaintiff for damages in the amount of $598.90, plus costs in the amount of $188.00, a total of $786.90.

5. Judgment enter for the defendant for possession pursuant to the fifth paragraph of G.L. c. 239, s.8A, on the condition that within seven (7) days of her receipt of this ORDER, the defendant deposits with the Clerk of this Court, the sum of $598.90, plus costs in the amount of $188.00, a total of $786.90, in the form of cash, certified check, cashier’s check, or money order, payable to the plaintiff. If this deposit is made, the Clerk shall immediately release all funds held by the Court to the plaintiff. If the deposit is not made, judgment shall automatically enter in favor of the plaintiff for possession and damages in the amount of $598.90, plus costs in the amount of $188.00, a total of $786.90, on the next business day following the expiration of the tenth (10th) day from the date of this Order.

cc: Eric J. Nee

Gina Lunardo

————————-

[1] The plaintiff also seeks to recover electricity charges for which he contends the defendant is responsible. The Court finds that

the plaintiff in a summary process action based on a Notice To Quit for Non-Payment of Rent cannot recover for utility charges in the summary process action, but is free to file a separate small claims action to do so. Accordingly, the Court does not reach the issue of the plaintiff’s claim for electricity charges in this decision.

[2] The Court finds that, after the written lease expired on March 31, 2007, the parties executed a written tenancy at will agreement on June 1, 2007.

[3] The per diem rental amount is calculated as follows: $1,250.00 x 12 = $15,000.00 ? 365 = $41.10.

End Of Decision

HOUSING COURT

Juston K. Mercier PLAINTIFF v. Cheryl Graham and all other occupants DEFENDANTS

Docket # Docket No. 08-SP-01282

Parties: Juston K. Mercier PLAINTIFF v. Cheryl Graham and all other occupants DEFENDANTS

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: June 10, 2008

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

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

The defendants, Cheryl Graham and all other occupants, have resided at 80 Palmer Street, second floor, Fall River, MA (“the

premises”) under a written tenancy at will agreement since February 1, 20081. The plaintiff, Juston K. Mercier, is the owner of the premises and is the defendants’ landlord. The rent for the premises is $800.00 per month and is due on the first day of each month. The defendant has failed to pay the plaintiff any rent for the month of April 2008, owes a balance of $400.00 for the month of March 2008, and currently owes the plaintiff a total of $1,200.00 in unpaid rent.

The Court finds that, on March 8, 2008, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Quit for Non-Payment of Rent.

The defendant filed a written answer and counterclaims based on breach of the implied warranty of habitability and violations of G.L. c. 186, s.14, G.L. c. 239, s.2A, and G.L. c. 186, s.18.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant testified that, on February 1, 2008, the gas company came to the premises but refused to turn the heat on, and “red tagged” the heater in the premises. She testified that she called the plaintiff, who came to the premises within twenty (20) minutes and plugged the heater back in. She testified that, on February 2, 2008, the plaintiff came to the premises because the bathtub in her unit was leaking into the first floor unit. She testified that, on February 3, 2008, the plaintiff brought a shower curtain to the premises, but she had put up a shower curtain by then. She testified that, on February 6, 2008, the dishwasher was not working, and that she called the plaintiff to report this condition. She testified that the plaintiff inspected the dishwasher on February 10, 2008 and, on February 11, 2008, he informed her he would call a repairman. She testified that, on February 15, 2008, the plaintiff called her and informed her that a repairman would come to the premises, and that, on February 23, 2008, the dishwasher was replaced. She testified that, on February 25, 2008, the plaintiff came to the premises to unclog the sink, but that the sink remains clogged. She testified that, on March 7, 2008, the plaintiff called and told her that someone from the gas company would be at the premises in thirty (30) minutes. She testified that, when someone arrived, she asked him for identification, and he walked out of her apartment. She testified that, between February 1, 2008 and March 7, 2008, she had heat, but “barely.” She testified that it was cold in the premises and that the windows were drafty. She testified that the heat vents do not open and close, and that she put up a sheet to cover the living room because there are five (5) windows in the living room. She testified that her friend Paul St. Germain put foil

on the kitchen vent to get heat into the rest of the premises.

Paul St. Germain testified that he saw the man who came on March 7, 2008, and observed him look at the furnace. He testified that the man did not have any identification on his shirt, but gave his name and then left. He testified that the defendant wanted him to put a piece of cardboard over the kitchen heating duct, but that he used foil instead. He testified that he heard the plaintiff say that he would repair the dishwasher within a week. He testified that he informed the plaintiff that there was not enough hot water to fill baths.

The Court finds that, on March 24, 2008, the City of Fall River Inspectional Services Department, Minimum Housing Division (“Minimum Housing”) inspected the premises and found the following conditions: “1. Storm door to front porch needs repairing. Glass or screen to be put in. (2nd Fl.). 2. Debris in rear of yard. Fence pieces piled up. Also tires, trash, etc. 3. Linoleum ripped to 1st floor hallway. To be replaced. 4. Owner to post name, address and contact # in 1st floor hallway. 5. Cover to light switch for cellar stairs cracked. 6. Tenant claims not getting enough heat in front room. Also vents to heating system can’t close or open per tenant. 7. Outlets keep sparking. Plugs burnt. Owner to check electric. 8. Holes in hallways. Ceilings peeling. 9. Bathroom sink clogged. Also leaking underneath in cabinet. 10. Tenant claims water for bathtub leaks into first floor. Ceiling fell. 11. Doors in apartments to be repaired. Inside jam (sic) area, bedroom doors, frames, inside frame area and door to enter apartment. 12. Railings loose to hallway stairs rear. 13. Evidence of water getting into cellar through foundation. 14. Mold building up rear entry 1st floor.”

The Court finds that, on April 4, 2008, Minimum Housing inspected the premises and found the following condition: “15. Heating stove was red tagged by Gas Co. Owner to have professional technician to look at system. 4 foot pipe connector being used.”

The plaintiff testified that, when the defendant called him about the gas on February 1, 2008, he informed her that all of the heaters in the building had been installed properly, and that the heater needs space where air comes in. He testified that the heating system is not defective, but the hose that makes the connection is one solid pipe, rather than a flex pipe. He testified that the gas company turned the gas back on after he showed the gas company the pipe and that the heater is vented. He testified that he did not turn the gas on himself. He testified that, on February 2, 2008, the shower in the premises was used without a shower curtain, which caused the floor to be soaking wet and to leak into the first floor apartment. He testified that he bought a shower curtain for the defendant to use, but that she “took it the wrong way,” and said that she could afford her own shower curtain. He testified that he has a contractor who sets up appointments directly with tenants for repairs such as the dishwasher. He testified that he did not know that there had been a delay in replacing the defendant’s dishwasher and that, as soon as he was made aware, he installed a new dishwasher the next day. He testified that there is a new 40 gallon hot water tank for the premises, which is operating properly, and that four (4) people

cannot take baths in a row without using up the hot water. He testified that he has attempted on numerous occasions to get access to the premises to make repairs, but the defendant will not allow him access. He testified that he has tried to contact the defendant on her cell phone, but she keeps changing her number, that she does not answer the door when he knocks, and that she does not respond to notes he leaves on her door. He testified that he cannot make appointments with her to make repairs.

The Court credits the plaintiff’s testimony on these issues.

The Court finds that there was no credible evidence at trial that the heat in the premises was defective at any time during the defendant’s tenancy. Accordingly, the Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this condition.

The Court finds that there was no credible evidence at trial that the lack of a dishwasher in the premises for a few days on one occasion during the defendant’s tenancy was serious, or that this condition endangered the health or safety of the defendant, or that it diminished the fair rental value of the premises. Accordingly, the Court finds that the existence of this condition did not constitute a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on this condition.

The Court finds that there was no evidence at trial that, following his repair of the kitchen sink on February 25, 2008, the plaintiff knew or should have known that the kitchen sink at the premises was still clogged until he received the March 24, 2008 Minimum Housing Report.

The Court finds that the remaining conditions listed in the March 24, 2008 Minimum Housing Report are conditions which, in the aggregate, constitute a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that, since the defendant denied the plaintiff access to the premises to make the repairs listed in the March 24, 2008 Minimum Housing Report, the defendant is not entitled to a defense to possession or to damages under G.L. c. 239, s.8A based on these conditions.

In her written answer and counterclaims, the defendant contends that the plaintiff violated G.L. c. 186, s.14 by harassing the defendant and her children and by allowing other tenants in the building to disturb the peace and quiet of the defendant and her children and to harass her and her children.

G.L. c. 186, s.14 provides, in pertinent part: “Any lessor or landlord of any building or part thereof occupied for dwelling purposes… who directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant…shall…be liable for actual and consequential damages, or three month’s rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee, all of which may be applied in setoff to or in recoupment against any claim for rent owed or owing…” While G.L. c. 186, s.14 does not require that the landlord’s conduct be intentional, Simon v. Solomon, 386 Mass. 91 (1983), it does require that the landlord’s conduct cause a serious interference with the

tenant’s quiet enjoyment. Doe v. New Bedford Housing Authority, 417 Mass. 263, 284-285 (1994); Lowery v. Robinson, 13 Mass.App.Ct. 982 (1982). “The covenant of quiet enjoyment protects a tenant’s right to freedom from serious interference with his tenancy-acts or omissions that impair the character and value of the leased premises. (citations omitted).” Doe v. New Bedford Housing Authority, supra at 285.

The defendant testified that the plaintiff has harassed her during her tenancy by repeatedly telephoning her “wanting the rent,” and telling her to take out the trash. She testified that the plaintiff’s wife has called the Fall River Police Department with false complaints about her, and that the plaintiff and his wife talk to her children about the rent. She testified that, on April 24, 2008, the plaintiff banged on her door and, when her daughter answered the door, the plaintiff told her, “Tell your mother to stop smoking weed in the hallway.” She testified that the plaintiff told the Massachusetts Department of Social Services (“DSS”) that she was “getting beat up” by her boyfriend and he was suspicious about drugs in her apartment. Tamara Graham, the defendant’s daughter, testified that, on one occasion, the plaintiff’s wife came to the premises and banged on the door. She testified that, when she opened the door, the plaintiff’s wife told her to tell her mother that she has to pay rent or be evicted. Jasmine Graham, the defendant’s daughter, testified that, on April 24, 2008, the plaintiff said to her as he was leaving the apartment, “F*ck you and your family.” She testified that, on April 27, 2008, the plaintiff was on the porch at the premises and threw some tables and chairs off the porch, broke them and put them in the trash. She testified on cross-examination that the porch furniture did not belong to the defendant or her family. Chante [1] Graham, the defendant’s daughter, testified that, on April 24, 2008, the plaintiff knocked on the door to the premises and told her, “Tell your mother not to smoke weed in the hallway” and that, as he was standing in the downstairs hallway, he said “F*ck you and your family.” The plaintiff testified that he has never harassed the defendant, that he asks the defendant to take out her trash because it is the responsibility of each of the tenants to do so. He testified that he talked to the defendant’s daughter about the smell of marijuana because one of the Fall River Police officers called to the premises told him that he smelled it, and told him to talk to the defendant about it and to call DSS.

The Court credits the plaintiff’s testimony on these issues, and finds that there was no credible evidence that the plaintiff violated G.l. c. 186, s.14 based on these claims.

The defendant testified that the plaintiff has interfered with her quiet enjoyment by failing to take any steps to stop the disturbing behavior of the tenants in the first floor apartment. She testified that, since February 19, 2008, the first floor tenants play their music very loud, that they yell and swear at her when she asks them to turn their music down, and that they have called her certain racial slurs. She testified that she has informed the plaintiff and the Fall River Police Department of this problem on numerous occasions, but the plaintiff has not taken any action. Tamara Graham, the defendant’s daughter, testified that the music in the first floor apartment is very loud, and that, in early April 2008,

she went to the first floor apartment and the tenant said, “If that f***ing b*tch doesn’t stop stomping on the floor, I’ll turn it louder.” Jasmine Graham, the defendant’s daughter, testified that the music in the first floor apartment is very loud, and that the plaintiff will not do anything about it. The plaintiff testified that he has told the Fall River Police officers who come to the building in response to noise complaints to park in the back of the building, where they can approach without being seen. He testified that they did so on three (3) occasions, and went into the rear of the building, but did not hear any noise from the first floor apartment. He testified that he was present on these three (3) occasions, and that he has not heard any loud music from the first floor apartment. The Court credits the plaintiff’s testimony on these issues. The Court finds that there was no credible evidence at trial that the plaintiff’s response to the defendant’s complaints about noise from the first floor apartment or the activities of the other tenants in the building in which the premises is located constitutes a violation of G.L. c. 186, s.14. Accordingly, the Court finds that the defendant is not entitled to damages under G.L. c. 186, s.14 based on this claim.

G.L. c. 239, s.2A provides, in pertinent part: “It shall be a defense to an action for summary process that such action or the preceding action of terminating the tenant’s tenancy, was taken against the tenant for the tenant’s act of commencing, proceeding with, or obtaining relief in any judicial or administrative action the purpose of which action was to obtain damages under or otherwise enforce, any federal, state or local law, regulation, by-law, or ordinance, which has as its objective the regulation of residential premises, or…reporting a violation or suspected violation of law as provided in section eighteen of chapter one hundred and eighty-six….The commencement of such 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 commenced, proceeded with or obtained relief in such action, (or)..made such report..shall create a rebuttable presumption that such summary process is a reprisal against the tenant for engaging in such activities…Such presumption may be rebutted only by clear and convincing evidence [2] that such action was not a reprisal against the tenant, and that the plaintiff 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, even if the tenant had not…engaged in such activity.”

The Court finds that the plaintiff served the defendant with the 14 Day Notice To Quit for Non-Payment of Rent which forms the basis of this action on March 8, 2008. The Court finds that there was no evidence at trial that the defendant had engaged in any actions prior to March 8, 2008 which would entitle her to the statutory presumption under G.L. c. 239, s.2A. The Court finds, on the facts of this case, that the defendant has failed to show by a preponderance of the evidence that the plaintiff’s act of serving the defendant with the Notice To Quit on March 8, 2008 constitutes a reprisal against the defendant. Accordingly, the Court finds that the defendant is not entitled to a defense to possession under G.L. c. 239, s.2A based on this claim.

The Court finds that, since the Notice To Quit which forms the basis for this action was for non-payment of rent, the defendant is not entitled to the statutory presumption of retaliation under G.L. c. 186, s.18. The Court finds that, on the facts of this case, the defendant has failed to show by a preponderance of the evidence that the plaintiff’s act of serving the defendant with the Notice To Quit on March 8, 2008 constitutes a reprisal against the defendant and finds that the plaintiff’s sole reason for serving the defendant with the March 8, 2008 Notice To Quit was that the defendant had not paid rent when it was due. Accordingly, the Court finds that the defendant is not entitled to damages under G.L. c. 186, s.18 based on this claim.

The Court finds that the plaintiff has established his case for possession of the premises and damages for unpaid rent in the amount of $1,200.00, plus costs.

ORDER FOR JUDGMENT

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

1. Judgment enter for the plaintiff for possession of the premises and damages for unpaid rent in the amount of $1,200.00, plus costs.

2. Judgment enter for the plaintiff on the defendant’s counterclaims.

3. Execution issue ten (10) days after the date that judgment enters.

cc: Juston K. Mercier

Cheryl Graham

Docket No. 08-SP-01282

Juston K. Mercier Plaintiff vs. Cheryl Graham and all other occupants Defendants

JUDGMENT

Judgment for the Plaintiff for possession, unpaid rent of $1,200.00, plus costs.

Judgment for the Plaintiff as well as to Defendant’s counterclaim issues.

Accordingly, judgment enters at 10:00 a.m. this 11th day of June 2008.

/s/MARK R. JEFFRIES

CLERK MAGISTRATE

June 11, 2008

Juston K. Mercier

106 Liberty Street

Apt 1

Fall River, MA 02724

Cheryl Graham

80 Palmer Street

Apt 2

Fall River, MA 02724

————————-

[1] The Court finds that, since the defendant Cheryl Graham occupies the premises with her daughters, Chante, Tamara and Jasmine, and that the only occupant of the premises who signed the written tenancy at will agreement is the defendant Cheryl Graham, the remainder of this decision will identify the defendant Cheryl Graham as the sole defendant in this action.

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).

End Of Decision

HOUSING COURT

Glen Nunes, PLAINTIFF v. Crystal Rego, DEFENDANT

SOUTHEASTERN DIVISION

Docket # Docket No. 08-SP-02215

Parties: Glen Nunes, PLAINTIFF v. Crystal Rego, DEFENDANT

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: July 3, 2008

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

This is a summary process action in which the plaintiff seeks to recover possession of the premises from the defendant and damages for unpaid rent.

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

The defendant, Crystal Rego, has resided at 32 Quequechan Street, 3rd Floor, Fall River, MA (“the premises”) as a tenant at will since November 1, 2007. The plaintiff, Glen Nunes, is the owner of the premises and is the defendant’s landlord. The rent for the premises is $700.00 per month and is due on the first day of each month. The defendant has failed to pay the plaintiff any rent for the months of February 2008 through June 2008, and currently owes the plaintiff a total of $3,500.00 in unpaid rent.

The Court finds that, on March 29, 2008, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Quit.

At trial, the defendant testified that there are defective conditions in the premises.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant testified that, at the inception of her tenancy on November 1, 2007, several windows in the premises were broken, there was trash and debris in the yard and no trash barrels, the covers were missing from the baseboard heating system, and there was a hole in the shower wall near the toilet. She testified that, in early December 2007, the stove in the premises broke because the knob broke off and the stove was “stuck on broil.” She testified that the gas company turned off the stove. She testified that she informed the plaintiff that the stove was broken many times, but that he has never repaired it, and she is using a hot plate to cook. She testified that, in early January 2008, there were mice in the premises and she notified the plaintiff, who brought mousetraps, but that did not solve the problem. The plaintiff testified that, when the defendant informed him that the stove had broken, he sent someone from Jerry’s Appliances to inspect the stove, but no one was home. He testified that, since each time someone from Jerry’s Appliances makes a call, it costs $15.00, he did not make any further efforts to repair the stove. He testified that, when the defendant told him she saw a mouse, he gave her glue traps. He testified that the hole on the side of the toilet which she described is not a defect, but is paneling that covers the pipes. He testified that there are trash barrels for the tenants to use, and that the trash is from the tenants. The Court credits the plaintiff’s testimony with respect to the responses he made to the defendant’s complaints about the broken stove and the mice infestation, and credits the defendant’s testimony on the remaining issues.

The Court finds that, on May 13, 2008, the City of Fall River Inspectional Services Department, Division of Minimum Housing Standards (“Minimum Housing”) inspected the premises and found the following conditions: “1. Owner to post name, address and contacts in hallway. 2. Windows missing & broken. Loose not weathertight fitting throughout building. 3. Entrance door on side doesn’t close properly. 4. Trash and debris all over yard. 5. Cooking stove not working. Gas Co. shut off. Needs to be replaced. 6. Evidence of rodents in apartment. [Mice]. Proof of professional extermination is needed. 7. Covers missing from baseboard heating system throughout apartment. 8. Shower wall has a hole near toilet. 9. Water from shower going into 2nd Fl. apartment causing damages to 2nd Fl. 10. Smoke alarm missing. 11. Screens missing and ripped throughout apartment. 12. Racks in closet in son’s room fell.”

The Court finds that the conditions which existed at the inception of the defendant’s tenancy, i.e., the broken windows in the premises, the trash and debris in the yard and the lack of trash barrels, the missing baseboard covers and the hole in the shower wall near the toilet, are conditions which constitute material breaches of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that the defendant is entitled to a defense to possession and to damages under G.L. c. 239, s.8A based on these conditions.

The Court finds that the broken stove and the mice infestation are conditions which constitute material breaches of the implied warranty of habitability. Id. The Court finds that the defendant is entitled to a defense to possession and to damages under G.L. c. 239, s.8A based on these conditions.

The Court finds that the remaining conditions listed in the May 13, 2008 Minimum Housing Report are conditions which, in the aggregate, constitute a material breach of the implied warranty of habitability. Id. The Court finds that there was no evidence at trial that the plaintiff knew or should have known of the existence of these conditions before he received the Minimum Housing Report on or about May 13, 2008. Since the defendant was already in arrears in her rent, the Court finds that the defendant is not entitled to a defense to possession under G.L. c. 239, s.8A based on these conditions. The Court finds that the defendant is entitled to damages under G.L. c. 239, s.8A based on these conditions.

The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises free of defects and the fair rental value of the premises during the period in which the defective conditions existed. The Court finds that the fair rental value of the premises during the defendant’s tenancy is $700.00 per month. The Court finds that the defendant is entitled to the following rent abatements: (1) for the broken windows in the premises, the trash and debris in the yard and the lack of trash barrels, the missing baseboard covers and the hole in the wall near the toilet for the 239 day period between November 1, 2007 and June 26, 2008, twenty per cent (20%); (2) for the lack of a stove in the premise for the 209 day period between December 1, 2007[1] and June 26, 2008, fifty per cent (50%); (3) for the mice infestation in the premises for the 178 period between January 1, 2008[2] and June 26, 2008, twenty-five per cent (25%) and (4) for the remaining conditions in the May 13, 2008 Minimum Housing Report for the 45 day period between May 13, 2008 and June 26, 2008, ten per cent (10%), calculated as follows: ($23.01/day[3] x 20% = $4.60 x 239 = $1,099.40) + ($23.01 x 50% = $11.51 x 209 = $2,405.59) + ($23.01 x 25% = $5.75 x 178 = $1,023.50) + ($23.01 x 10% = $2.30 x 45 = $103.50) = $4,631.99.

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 enter for the defendant for possession of the premises under G.L. c. 239, s.8A.

2. Judgment enter for the plaintiff for damages for unpaid rent in the amount of $3,500.00, plus costs in the amount of $185.00, a total of $3,685.00.

3. Judgment enter for the defendant on her counterclaim for breach of the implied warranty of habitability in the amount of $4,631.99.

4. The foregoing orders for judgment paragraphs 2 and 3 result in a net judgment for the defendant in the amount of $946.99.

5. Execution issue ten (10) days after the date that judgment enters.

cc: Glen Nunes

Crystal Rego

SOUTHEASTERN DIVISION

Docket No. 08-SP-02215

Glen Nunes, Plaintiff vs. Crystal Rego, Defendant

JUDGMENT

Judgment for the Defendant for possession pursuant to M.G.L. Chapter 239, s.8A.

Judgment for the Plaintiff for unpaid rent in the sum of $3,500.00, plus costs of $185.00, for a total of $3,685.00.

Judgment for the Defendant on her counterclaim for breach of the implied warranty of habitability in the sum of $4,631.99; resulting in a net judgment to the Defendant of $946.99 as more specifically set forth in paragraph 4 of the Court’s Order for Judgment.

Accordingly, judgment enters at 10:00 a.m. this 7th day of July 2008.

/s/MARK R. JEFFRIES

CLERK MAGISTRATE

July 7, 2008

Glen Nunes

P. O. Box 774

Rehoboth, MA 02769

Crystal Rego

32 Quequechan St

3rd Floor

Fall River, MA 02723

Note: Decision mailed to plaintiff Glen Nunes at his PO box # on 7/7/08 was returned by the post office on July 31, 2008 – “unable to forward”. Remailed in its original envelope to plaintiff Nunes to the address as listed on his Housing Specialist Referral pink form as follows:

Glen Nunes

279 Russells Mills Road

So. Dartmouth, MA 02748

————————-

[1] Since there was no testimony at trial as to the exact date in December 2007 on which the stove broke, the Court will use December 1, 2007 as the date for the purpose of computing damages.

[2] Since there was no testimony at trial as to the exact date in January 2008 on which the mice infestation began, the Court will use January 1, 2008 as the date for the purpose of computing damages.

[3] The per diem rental amount is calculated as follows: $700.00 x 12 = $8,400.00 ? 365 = $23.01.

End Of Decision

HOUSING COURT

Phillip Oliveira, PLAINTIFF v. Georgina Vaz, DEFENDANT

SOUTHEASTERN DIVISION

Docket # Docket No. 08-SP-04092

Parties: Phillip Oliveira, PLAINTIFF v. Georgina Vaz, DEFENDANT

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: October 29, 2008

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

This is a summary process action in which the plaintiff sought to recover possession of the premises from the defendant and damages for unpaid rent.

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

The defendant, Georgina Vaz, resided at 23 Foster St., 3d Floor, Fall River, MA (“the premises”) as a tenant at will from January 14, 2008 to a date in October 2008. The plaintiff, Phillip

Oliveira, is the owner of the premises and was the defendant’s landlord.

The defendant testified that she vacated the premises on October 2, 2008 and gave the keys to her brother on October 3, 2008 to return to the plaintiff. The plaintiff testified that he received the keys on October 13, 2008. The Court credits the plaintiff’s testimony on this issue, and finds that the defendant vacated the premises on October 13, 2008. Accordingly, the Court finds that the issue of possession is moot.

The plaintiff testified that the rent for the premises is $700.00 per month and is due on the first day of each month. He testified that the defendant has failed to pay him any rent for the months of September 2008 and October 2008, owes a balance of $100.00 for the month of August 2008, and currently owes him a total of $1,500.00 in unpaid rent. The defendant testified that, on August 14, 2008, she notified the plaintiff in writing that she was withholding her rent until the plaintiff made certain repairs at the premises. She testified that she owes the plaintiff a balance of $100.00 for the month of August 2008. She also testified that, prior to September 2008, the rent for the premises had been $600.00 per month and that, on August 8, 2008, the plaintiff notified her that the rent would be increasing to $700.00 per month effective September 2008. She testified that the rent for the premises is due on the third day of each month. The Court credits the plaintiff’s testimony on the issue of the date on which rent is due, and credits the parties’ testimony on the remaining issues. The Court finds that there was no evidence at trial that the defendant agreed to the rent increase, and finds that the rent for the premises remained at $600.00 per month. The Court finds that the defendant has failed to pay the plaintiff any rent for the months of September 2008 and October 2008, owes a balance of $100.00 for the month of August 2008, and currently owes the plaintiff a total of $1,300.00 in unpaid rent.

The Court finds that, on September 3, 2008, the plaintiff served the defendant with a legally sufficient 14 Day Notice To Pay Rent or Quit.

At trial, the defendant testified that there are defective conditions in the premises.

G.L. c. 239, s.8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim “any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to relief under this section only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in his rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

The defendant testified that, on August 14, 2008, she notified the plaintiff in writing that she was withholding her rent until the

plaintiff made the following repairs in the premises: “1. Hole in kitchen ceiling; 2. Leak in kitchen drain pipe; 3. Toilet running; 4. No lock on back door; 5. Radiators leaking; 6. Back entrance door missing; 7. Handrail loose from 1st and 2nd levels; 8. Owner’s meter missing for hallway lights. Tenant paying for lights.” The Court finds that the defendant sent this written notice to the plaintiff by certified mail, and finds that the plaintiff received it on August 20, 2008.

The plaintiff testified that the hallway lights have been on a house meter for over two (2) years. He testified that he took the back door off to allow the defendant’s brother to remove some possessions he had stored in the hallway, and that the door was not in place for approximately one (1) week. He testified that he repaired the handrail the week before trial, and that he made the remaining repairs listed in the August 14, 2008 notice promptly. The Court credits this testimony.

The Court finds that there was no credible evidence at trial that the defendant was paying for the hallway lights. Accordingly, the Court finds that the defendant is not entitled to damages under G.L. c. 239, s.8A based on this condition.

The Court finds that the remaining conditions listed in the August 14, 2008 notice are conditions, which, in the aggregate, constitute a material breach of the implied warranty of habitability. Boston Housing Authority v. Hemingway, 363 Mass. 184, 200-201 (1973). The Court finds that the defendant is entitled to damages under G.L. c. 239, s.8A based on these conditions.

The Court finds that there was no evidence at trial of the date on which the hole in the kitchen ceiling, the leak in the kitchen drain pipe, the running toilet, the missing back door lock, or the leaking radiators were repaired. Accordingly, the Court is unable to compute damages under G.L. c. 239, s.8A based on these conditions.

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 enter for the plaintiff for damages for unpaid rent in the amount of $1,300.00, plus costs in the amount of $190.00, a total of $1,490.00.

2. Judgment enter for the defendant on her counterclaim for breach of the implied warranty of habitability in the amount of $240.77.

3. The foregoing order for judgment paragraphs 1 and 2 result in a net judgment for the plaintiff for damages in the amount of

$1,059.23, plus costs in the amount of $190.00, a total of $1,249.23.

4. Execution issue ten (10) days after the date that judgment enters.

cc: Phillip Oliveira

Georgina Vaz

————————-

[1] The per diem rental amount is calculated as follows: $600.00 x 12 = $7,200.00 ? 365 = $19.73.

End Of Decision

HOUSING COURT

Beth Palmer, Christina White and Briana Gentile, PLAINTIFFS v. Paul J. Markowicz and Joseph R. Starr, Trustee of the Starr Realty Trust f/d/b/a Starr Realty, DEFENDANTS

SOUTHEASTERN DIVISION

Docket # Docket No. 07-CV-01546

Parties: Beth Palmer, Christina White and Briana Gentile, PLAINTIFFS v. Paul J. Markowicz and Joseph R. Starr, Trustee of the Starr Realty Trust f/d/b/a Starr Realty, DEFENDANTS

Judge: /s/ANNE KENNEY CHAPLIN

FIRST JUSTICE

Date: August 7, 2008

MEMORANDUM OF DECISION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

The plaintiffs have filed a Motion for Summary Judgment as to the Defendant, Joseph R. Starr, Trustee of The Starr Realty Trust and the defendant Joseph R. Starr, Trustee has also filed a Motion for Summary Judgment.

INTRODUCTION

The plaintiffs have moved, pursuant to M.R.Civ.P. 56, for entry of summary judgment on their Complaint. The defendant Joseph R. Starr, Trustee of the Starr Realty Trust (“the Trustee”) opposes the entry of summary judgment in the plaintiffs’ favor, and has moved, pursuant to M.R.Civ.P. 56, for entry of summary judgment in his favor on the Complaint[1].

A Motion for Summary Judgment should be allowed if, viewed in the light most favorable to the non-moving party, “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.Civ.P. 56(c). Route One Liquors, Inc. v. Secretary of Administration and Finance, 439 Mass. 111, 115 (2003); Community National Bank v. Dawes, 369 Mass. 550, 553-556 (1976). “Summary judgment, when appropriate, may be rendered against the moving party.” M.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating these elements. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1980). “[T]he opposing party cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment.” Lalonde v. Eissner, 405 Mass. 207, 209 (1989).

In support of their Motion, the plaintiffs have submitted a Memorandum, the Affidavit of Beth Palmer, and selected exhibits. In

opposition to the plaintiffs’ Motion and in support of his own, the Trustee has submitted a Memorandum, the Affidavit of Joseph R. Starr, the Affidavit of Carol Starr, and selected exhibits.

FACTS

In the Trustee’s Memorandum in support of his Motion, he stated that he “accepts the Plaintiffs’ ‘Concise Statement of Material Facts’ [contained in the Plaintiffs’ Memorandum of Law in Support of their Motion for Summary Judgment]…” Accordingly, the Court finds that the following facts are undisputed: On June 8, 2006, the plaintiffs entered into a written lease with the Trustee to occupy 96 Maple Avenue, Bridgewater, MA (“the premises”) for a one-year period. The plaintiffs paid the Trustee a security deposit in the amount of $1,260.00 under the terms of the lease. On or about September 11, 2006, the Trustee transferred title to the premises to the defendant Paul J. Markowicz (“Markowicz”) pursuant to a deed recorded in the Plymouth County Registry of Deeds on or about September 12, 2006. At no time subsequent to the transfer of title to the premises from the Trustee to Markowicz did the plaintiffs receive written notification that the security deposit tendered to the Trustee had been transferred to Markowicz. The plaintiffs surrendered possession of the premises on June 8, 2007, at the expiration of the lease. The plaintiffs were not in arrears in their rent in any amount at the expiration of their lease. The plaintiffs have not received either the return of their security deposit, or an itemized list of damages detailing the nature and extent to any damage to the premises and the cost necessary to repair any damage, from either the Trustee or Markowicz. On or about October 29, 2007, the plaintiffs made a formal demand on the Trustee and Markowicz, through counsel, for the return of the security deposit, but no portion of said deposit has ever been returned.

DISCUSSION

In Count III of their Complaint, the plaintiffs contend that the Trustee’s failure to return their security deposit constitutes a violation of G.L. c. 186, s.15B and have moved for summary judgment in their favor on this ground.

The Trustee has moved for summary judgment in his favor on Count III of the Complaint as a matter of law, on the ground that he transferred the security deposit to the defendant Markowicz upon the sale of the building in which the premises is located, and that the plaintiffs, who had actual notice of this transfer, agreed to look solely to the defendant Markowicz for the return of their security deposit.

G.L. c. 186, s.15B(5) provides, in pertinent part: “Upon such transfer [of a security deposit to a successor in interest], the lessor or his agent shall continue to be liable with respect to the provisions of this section until: (a) there has been a transfer of the amount of the security deposit so held to the lessor’s successor in interest and the tenant has been notified in writing of the transfer and of the successor in interest’s name, business address, and business telephone number; (b) there has been compliance with this clause by the successor in interest; or (c) the security deposit has been returned to the tenant.”

The plaintiffs contend that the Trustee remains liable to them as a matter of law for their security deposit because he failed to

comply with the provisions of G.L. c. 186, s.15B(5). The plaintiffs contend that the Trustee did not give them written notice of the transfer of their security deposit to Markowicz, the successor in interest, nor has the security deposit been returned to them.

The Trustee contends that he is entitled to summary judgment as a matter of law since he transferred the security deposit to Markowicz on September 11, 2006, when the building in which the premises is located was sold to Markowicz, and that the plaintiffs, who had actual notice of the transfer, agreed to look only to Markowicz for the return of their security deposit. In his Affidavit dated March 17, 2008, the Trustee states that he informed the plaintiffs and Markowicz during a meeting he had asked them to attend that he was selling the property to Markowicz and that “it was decided and agreed by all the plaintiffs, myself, and Markowicz, that rather than have me write out checks to each of the plaintiffs for return of the security deposit, and then they would have to go down to the bank and deposit these, and then write out new checks to the new owner Markowicz, that instead they would simply look to Markowicz for return of their deposits.” Joseph R. Starr Affidavit, p.p.2-5.

The Trustee contends that actual notice supersedes the statutory requirement of written notice, citing The Great Atlantic and Pacific Tea Company, Inc. v. Yanofsky, 380 Mass. 326 (1980). The Trustee contends that, in the Yanofsky case, the Supreme Judicial Court found that actual notice under G.L. c. 186, s.19[2] of an unsafe condition requiring repair superseded the statutory requirement of written notice by registered or certified mail, citing that case, as follows: “In any event, it is uncontested that the lessor received actual notice of the needed repair, rendering further notice superfluous as a matter of common sense.” Id. at 331. “A fundamental and well-established principle of statutory interpretation ‘is that a statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered i