Housing Court Cases - Judge Wilbur Edwards, Boston Division

HOUSING COURT

ARLENE V. DUNN LASANE and CAROLYN L. DUNN[1] VS. RENEESE WALKER

BOSTON DIVISION

Docket # SUMMARY PROCESS 06-SP-04482

Parties: ARLENE V. DUNN LASANE and CAROLYN L. DUNN[1] VS. RENEESE WALKER

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: January 17, 2007

FINDINGS OF FACT. RULINGS OF LAW AND ORDER FOR JUDGMENT

This is a summary process action in which the plaintiffs, Arlene V. Dunn Lasane (“Dunn Lasane”) and Carolyn L. Dunn (“Dunn”) are seeking to recover possession of the premises occupied by the defendant, Reneese Walker (“Walker”) and $3,900.00 in damages for unpaid rent. All parties appeared pro se at the trial held on January 4, 2007. On the date of the trial and in open court, the defendant filed a Motion to File Late Answer and Discovery, which the Court denied. However, the defendant, without objection by either plaintiff, presented testimony at trial regarding the presence of certain adverse conditions at the premises; the plaintiffs also offered testimony concerning these conditions. Accordingly, pursuant to Mass. R. Civ. P. 15(b), the Court shall amend the pleadings to reflect that the defendant timely raised a defense to the plaintiffs’ claims under G.L. c. 239, s. 8A and a counterclaim for breach of the implied warranty of habitability, these issues having been tried by the implied consent of the parties.

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[1] At trial, the Court allowed the plaintiffs motion to add her sister, Carolyn L. Dunn, as a co-plaintiff and ordered that the case cover and docket be amended to reflect the correct spelling of the plaintiffs name, which is “Arlene V. Dunn Lasane.”

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Arlene V. Dunn Lasane testified that she and Carolyn L. Dunn are sisters and that they own and occupy one of the apartments at the three-family house located at 10 Donald Street in the Dorchester neighborhood of Boston. She further testified that

pursuant to a written month-to-month lease, Exhibit 1, Reneese Walker has lived at Apartment #1 thereof (“the premises”) since December 2005. She continued her testimony by stating that Walker’s monthly rent is $1,300.00 due on or before the first day of each month but that there is a grace period of six days to pay the rent before a vacate notice is issued. Dunn Lasane further testified that Walker did not pay any rent for the months of November 2006, December 2006, and January 2007 and that a 14-day notice to quit for nonpayment of rent, Exhibit 2, was served on Walker via Constable on November 27, 2006. The Summary Process Summons and Complaint with an Account Annexed of $2,600.00 was served on Walker via Constable on December 12, 2006. The Court finds this portion of Dunn Lasane’s testimony to be credible.

The Court finds that the plaintiffs have proven their prima facie case for possession of the premises and $3,900.00 in damages for unpaid rent (3 months at $1,300.00 per month).

Walker testified that she is currently unemployed, that she was unemployed for a major portion of 2006, and that she has four minor children. She also testified that, at her request, the City of Boston’s Inspectional Services Department (“ISD”) inspected the premises on November 29, 2006. She testified that this inspection identified seven problems in the premises including: (1) a leaky sink; (2) a problem with the dishwasher; (3) rusting radiators; (4) a problem with one of the interior bedroom walls; (5) an issue with the rear porch door; and (6) a ceiling leak. Walker further testified that she has had an ongoing problem with lack of adequate heat and that, as a result, she has had to use a space heater to partially heat the premises. Neither party had the actual report by ISD

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for review by the Court. The Court, though, finds this portion of Walker’s testimony to be credible.

On rebuttal, Dunn Lasane conceded that there is a problem with Walker’s heat but stated that the problem has not yet been corrected because of access problems caused by Walker. See Exhibits 3(A-C). She further conceded to receiving notice on or about November 29, 2006 of the conditions discovered during the ISD inspection and testified as to the following repairs: (1) the leaky sink was repaired on December 21, 2006; (2) the bedroom wall was repaired on December 30, 2006; and (3) the dishwasher was repaired on January 3, 2007. The problems involving the heat, radiators, porch door, and ceiling leak had not yet been addressed as of the date of trial. The Court finds Dunn Lasane’s rebuttal testimony to be credible.[2]

the premises by the landlord, the tenant is entitled to a defense to possession only if: (1) the landlord knew or should have known of the 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 condition cannot be remedied unless the premises are vacated.

Dunn Lasane terminated Walker’s tenancy for non-payment of rent. Accordingly, Walker is entitled to raise defenses and counterclaims against the plaintiffs based on adverse conditions of

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[2] After the conclusion of the trial and with the assistance of the Housing Specialist Department, the parties entered into an agreement for access to the premises for completion of repairs.

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the premises. However, even if the Court finds in favor of Walker on her counterclaim for breach of the implied warranty of habitability, she will not be entitled to maintain possession of the premises because the Court finds that the plaintiffs were not on notice as to any of the adverse conditions, including the lack of heat, prior to the plaintiff being in arrears in rent.

The implied warranty of habitability is the landlord’s promise that the premises will meet certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the tenant is in material violation of the minimum standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199-200 (1973). A landlord must have actual or constructive notice of the condition creating the violation. McKenna v. Begin, 3 Mass.App.Ct. 168, 171-172 (1975). Damages are assessed from the date the landlord had notice of the condition of disrepair. Berman & Sons v, Jefferson, 379 Mass. 196, 203 (1979). The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises as warranted and the fair rental value of the premises with the defects. McKenna, 3 Mass.App.Ct. at 172.

The Court rules that due to the aggregate conditions at the premises testified to by Walker and conceded to by the plaintiffs, namely the heating problem in combination with the other conditions discovered by ISD, the plaintiffs committed a material breach of the implied warranty of habitability beginning on November 29, 2006, which is the earliest date that the Court finds the plaintiffs were aware of the problems identified by ISD. Although there is evidence, see Exhibit 3-A, that the plaintiffs were aware of the heating problem as early as November 22, 2006, there was not sufficient evidence presented at trial as to the nature and severity of the heating problem for the

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Court to find that the heating issue alone rose to the level of a breach of the implied warranty of habitability. The Court further finds that the plaintiffs did not become aware of the remaining conditions discovered during the ISD inspection until November 29, 2006. While the Court acknowledges that Walker may not have been overly cooperative in providing access to the plaintiffs to fix the heating problem, the Court finds that this did not significantly hinder the plaintiffs’ ability to repair the heating problem, as evidenced by their ability to access the premises on December 21, 2006, December 30, 2006, and January 3, 2007 to complete some of the repairs discovered during the ISD inspection.

The Court determines that the fair rental value of the premises in good repair is $1,300.00 per month for all times relevant to this action and that the fair rental value was reduced on average by 20% from the period running from November 29, 2006 through the date of trial (January 4, 2007). Therefore, the Court determines that Walker is entitled to a rent abatement as follows: $42.74 per day[3] x 20% = $8.55 x 37 days (the period of November 29, 2006 through January 4, 2007) __ $316.35. Accordingly, the amount due Walker on her counterclaim for breach of the implied warranty of habitability is $316.35.

ORDER FOR JUDGMENT

In light of the evidence produced at trial, reasonable inferences drawn therefrom, and applicable law, the Court ORDERS that judgment shall enter as follows:

1. Judgment enters for the plaintiffs on their claims for possession of the premises and $3,900.00 in damages for unpaid rent, which is to be set off against the damages due the defendant in accordance with paragraph 3 herein.

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[3] The per diem amount is calculated as follows: $1,300.00 x 12 = $15,600.00 / 365 = $42.74.

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2. Judgment enters for the defendant on her counterclaim for breach of the implied warranty of habitability in the amount of $316.35, which is to be set off against the damages due the plaintiffs in accordance with paragraph 3 herein.

3. The amount awarded to the plaintiffs and the amount awarded to the defendant in paragraphs 1 and 2 of this Order for Judgment respectively shall be set off against each other resulting in a net award to the plaintiffs in the amount of $3,583.65 plus any appropriate costs.

4. Execution for possession and damages shall issue ten (10) days from the date of entry of judgment.

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End Of Decision

HOUSING COURT

SHAWN AGARD VS. CAROL WARREN

BOSTON DIVISION

Docket # SUMMARY PROCESS NO. 06-SP-02733

Parties: SHAWN AGARD VS. CAROL WARREN

Judge: /s/WILBUR P. EDWARDS Jr.

ASSOCIATE JUSTICE

Date: January 10, 2007

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

Preamble

This is a summary process action in which the Plaintiff, Shawn Agard, is seeking to recover possession of the Premises and damages for unpaid rent from the Defendant. The Defendant, Carol Warren, did not file an answer. At trial, the Defendant presented a counterclaim for the Plaintiff’s alleged breach of the implied warranty of habitability. Both parties appeared pro se.

The Plaintiff owns and manages property located at 15-17 Brinsley Street (the “Building”) in the Dorchester section of Boston, MA. The Defendant resides in Apartment 3 (the “Premises”) in the Building.[1] The Plaintiff testified that the Defendant’s rent is $103.00 per week. There was no testimony or evidence as to the due date for the weekly rental payment. He further stated that, as of the trial on November 9, 2006, the rent due was $1,850.00, representing unpaid rent for a period of 17 full weeks and a partial rent payment of $99.00 for an additional week. He was credible

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[1] As noted below, the Defendant as of the date of trial had been relocated to 101 Rosseter Street at the request of the Plaintiff due to conditions in the Building.

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in his testimony.

The Plaintiff served the Defendant with a Notice to Quit on June 6, 2006, alleging unpaid rent in the amount of $290.00. Exhibit 1. The Plaintiff served the Defendant with a Summons and Complaint on August 11, 2006, alleging unpaid rent in the amount of $349.00.

A landlord has the right to possession pursuant to M.G.L. c. 239 s.1. The Court finds that the Plaintiff has proven his prima facie case for damages against the Defendant for unpaid rent in the amount of $1,850.00, plus costs, calculated at the rate of $103.00 per week for 17 weeks, from July 15, 2006, through November 4, 2006, and a partial rental payment of $99.00.

The Defendant presented her defenses and counterclaims at trial.

Defendant’s Implied Warranty of Habitability Counterclaim

M.G.L. c. 239, s.8A p.1 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.” Pursuant to M.G.L. c. 239, s.8A p.2, where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to a defense to possession only if: (1) the landlord knew or should have known of the 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 implied warranty of habitability is the landlord’s promise that the premises will meet

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certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the tenant is in material violation of the minimum standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). A landlord must have actual or constructive notice of the condition creating the violation. McKenna v. Begin, 3 Mass.App.Ct. 168 (1975). Damages are assessed from the date the landlord had notice of the condition of disrepair. Berman & Sons v. Jefferson, 379 Mass. 196 (1979). The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises as warranted and the fair rental value of the premises with the defects. McKenna v. Begin, supra at 172.

At trial, the Defendant presented an implied warranty of habitability counterclaim as to the Building at 15-17 Brinsley Street in Dorchester, MA. The Defendant testified that there were rat holes in the kitchen, cockroaches throughout the Premises, and mold in the basement. She further stated that fumes emanated from the furnace through the forced air heating vents throughout the Premises. She was credible in her testimony.

As a result of a telephone complaint placed with the Boston Inspectional Services Department (the “ISD”) in early September 2006, ISD inspected the Premises and the Building on September 13, 2006. The inspector noted several conditions in violation of 105 C.M.R. 410.000, including the following: 1) debris in the yard, including a refrigerator, mattresses, and trash; 2) a missing heater cover in the bathroom; 3) cracks in the bathroom ceiling; 4) bathroom fixtures, bathtub, and shower curtain in need of cleaning; 5) a ceiling light fixture in bad repair; 6) bathroom

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light is not working; 7) holes in the wall near the bathroom sink; 8) loose door knob in the bathroom; 9) holes in the kitchen floor, which is also uneven and slopes; 10) bathroom sink is not properly attached to the wall; 11) missing floor tiles in the kitchen; 12) holes in kitchen sink; 13) infestation of mice; 14) cracks in the kitchen ceiling; 15) porch floor boards are loose and rotting and balusters are missing; 16) debris in the basement; 17) missing cover for the electrical box; 18) smoke detectors not working; and 19) missing carbon monoxide detectors, in violation of 527 C.M.R. 31.04. Exhibit 2.

Following receipt of the ISD report on September 13, 2006, the Plaintiff sent a letter dated October 10, 2006, to all tenants at the Building, including the Defendant, to inform the tenants that they would be relocated to a different building at 101 Rosseter Street in the Dorchester section of Boston, MA, to allow the Plaintiff to make repairs to the Building at 17 Brinsley Street in accordance with the ISD report. Exhibit 5. All tenants were required to vacate the Brinsley Street location no later than October 15, 2006, and repairs commenced on October 16, 2006. Exhibit 5.

The Defendant testified and the Court finds that she vacated the Premises at 17 Brinsley Street on or about October 15, 2006. In addition, the Defendant testified that she expended $300.00 on moving expenses. As of the date of trial on November 9, 2006, the Defendant was still residing in alternative housing at 101 Rosseter Street and had not been reimbursed for her moving expenses. The Court finds her testimony credible.

The Court finds that there were conditions in the Premises as listed in the ISD report that breached the implied warranty of habitability. Specifically, there was mold in the basement, rodent infestation, and cockroaches throughout the Premises, all as testified to by the Defendant. Further,

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the Court finds that the Plaintiff permitted other conditions to persist in the Premises, which constituted a material violation of the State Sanitary Code, including: debris in the yard and basement; cracks in the bathroom and kitchen ceilings; holes in the bathroom walls, kitchen floor, and kitchen sink; rotting and missing floorboards on the porch; missing covers for the bathroom heater and the electrical box; various light fixtures in bad repair or not in working order; and missing or inoperative smoke and carbon monoxide detectors. The Court finds that the Plaintiff had notice of these conditions as early as September 13, 2006, the date of the ISD report, and that these conditions persisted through October 15, 2006, the date by which the Defendant was required to vacate the Premises by the Plaintiff so he could conduct repairs. Accordingly, the Defendant is entitled to a rent abatement in the amount of $435.60, calculated as follows: $14.67[2] x 90% = $13.20 x 33 days[3] = $435.60.

Defendant’s Quiet Enjoyment Counterclaim

M.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…” A landlord violates M.G.L. c. 186, s.14 where he had notice, or reason to know of the serious condition in the tenant’s apartment, and failed to take appropriate corrective

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[2] The per diem rental rate is calculated as follows: $103.00/week x 52 weeks = $5,356.00 _ 365 = $14.67/day.

[3] The period from September 13, 2006, through October 15, 2006, the date on which the Defendant vacated the Premises is 33 days.

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measures. Al Ziab v. Mourgis, 424 Mass. 847, 850-851 (1997); Cruz Management Co., Inc. v. Thomas, 417 Mass. 782 (1994).

In calculating the damages due the Defendants for Plaintiff’s breach of the covenant of quiet enjoyment, the Court must under M.G.L. c. 186, s.14 compare the Defendant’s actual damages versus the statutory damages permitted under the statute.[4] The Defendant testified, and the Court finds, that she expended $300.00 to relocate from the Premises to the alternative housing provided by the Plaintiff, and that said expenses were not reimbursed by the Plaintiff. Therefore, the

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[4] M.G.L. c. 186, s.14 in relevant part: “Any person who commits any act in violation of this section shall also 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.”

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Defendant suffered actual damages in the amount of $300.00. The Defendant is accordingly entitled to statutory damages of $1,236.00, computed by trebling the monthly rent of $412.00. As computed pursuant to the statute, the Court must award the greater amount to the Defendant for her damages; accordingly, the Court finds in favor of the Defendant for the Plaintiff’s breach of quiet enjoyment in the amount of $1,236.00.

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 possession and unpaid rent in the amount of $1,850.00, plus costs in the amount of $180.50.

2. Judgment enter for the Defendant on her breach of quiet enjoyment claim in the amount of $1,236.00, plus costs.

3. Judgment enter for the Defendant on her implied warranty of habitability

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counterclaim, but no duplicative damages are awarded.

4. The foregoing Orders for Judgment Paragraphs 1 through 3 result in a net judgment in favor of the Plaintiff in the amount of $794.50.

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

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End Of Decision

HOUSING COURT

LAYLA CABLE VS. ANJANETTE JONES

BOSTON DIVISION SUMMARY PROCESS

Docket # 06-SP-03728

Parties: LAYLA CABLE VS. ANJANETTE JONES

Judge: /s/ WILBUR P. EDWARDS

ASSOCIATE JUSTICE

Date: January 10, 2007

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

Preamble

This is a summary process action in which the Plaintiff, Layla Cable, is seeking to recover possession of the Premises occupied by the Defendant for nonpayment of rent. The Defendant, Anjanette Jones, did not file an Answer but presented counterclaims at trial. Both parties appeared pro se.

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

The Plaintiff owns and resides in property located at 145 Millet Street (the “Building”) in the Dorchester section of Boston, MA. The Defendant resides in Apartment 1 (the “Premises”) in the Building. Both parties acknowledged that the Defendant received rental assistance through a Section 8 Housing Choice Voucher Program Lease that commenced on July 9, 2005 and terminated on

August 31, 2006. Exhibits 4, 7. The Lease was administered by the Metropolitan Boston Housing

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Partnership (“MBHP”). The monthly contract rent was $1,200.00; the Defendant’s portion of the monthly rent was $187.00. Exhibit 9.

Plaintiff’s Claims

The Plaintiff alleges that the Defendant owes $3,974.00 in back rent. The Plaintiff stated that the Defendant failed to pay her portion of the rent in the amount of $374.00 for the months of July and August 2006 at the rate of $187.00 per month. Further, the Plaintiff testified that the Defendant failed to pay the full contract rent of $1,200.00 per month for the months of September, October, and November, 2006, following the termination of the Lease on August 31, 2006.

The Plaintiff served the Defendant with a Fourteen-Day Notice to Quit on September 30, 2006. Exhibit 1. According to the Plaintiff’s testimony, the Notice to Quit alleged rent due in the amount of $876.00[1], which represents unpaid rent for July and August 2006 at the rate of $187.00 per month and unpaid rent for September 2006 at the rate of $1,200.00 per month.[2] Exhibit 1. The Plaintiff stated that in determining the rent due pursuant to the Notice to Quit, she credited $700.00 to the Defendant for electricity overcharges as a result of improper cross-metering of electricity. The Court notes that the Plaintiff’s calculation of unpaid rent in the Notice to Quit contains an incorrect deduction. Accordingly, the Court finds that the rent amount due at the time the Notice to Quit was served was $1,574.00, which reflects unpaid

rent for July and August 2006 at the rate of $187.00 per month, and $1,200.00 unpaid rent for the month of September 2006.

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[1] The Court notes that the Plaintiff’s Notice to Quit includes a mathematical error; the Notice to Quit, inclusive of the $700.00 “credit”, should demand $874.00 in unpaid rent, rather than $876.00, calculated as follows:

($187.00 x 2 months) + ($1,200.00 x 1 month) = $1,574.00 – $700.00 credit = $874.00.

[2] The Court notes that the Plaintiff’s calculations as to the rent due in both the Notice to Quit and the Summons and Complaint incorrectly includes a credit for cross-metering of electricity.

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The Summons and Complaint was served on the Defendant on October 19, 2006, with an account annexed of $2,076.00,[3] reflecting unpaid rent for the months of July and August 2006 at the rate of $187.00 per month, and September and October 2006 at

the contract rate of $1,200.00 per month, less the $700.00 “credit”offered by the Plaintiff as compensation for the cross-metered electricity. The Court notes that the unilateral “credit” offered by the Plaintiff for the improper cross-metering of electricity is unsupported by any testimony, evidence or an agreement between the parties for that amount. The Summons and Complaint should reflect, and the Court finds, that the rent amount due at the time the Summons and Complaint was served was $2,774.00, which reflects unpaid rent for July and August 2006 at the rate of $187.00 per month, and $1,200.00 unpaid rent for the months of September and October 2006.[4]

The Plaintiff testified that she now seeks rent in the amount of $3,274.00, which reflects unpaid rent for July and August 2006 at the rate of $187.00 per month and unpaid rent for the months of September, October, and November 2006 at the contract rate of $1,200.00 per month, less the $700.00 “credit”.

A landlord has the right to possession pursuant to M.G.L. c. 239 s.1. The Court fords that the Plaintiff has proven her prima facie case for possession and damages against the Defendant for unpaid rent in the amount of $3,974.00, plus costs, calculated at the rate of $187.00 per month for

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[3] The Court notes that the Plaintiff’s Summons and Complaint includes a mathematical error; the Summons and Complaint, inclusive of the $700.00 “credit”, should demand $2,074.00 in unpaid rent, rather than $2,076.00, calculated as follows: ($187.00 x 2 months) + ($1,200.00 x 2 months) = $2,774.00 – $700.00 credit = $2,074.00.

[4] The Defendant’s Section 8 rental assistance terminated on August 31, 2006; therefore, she was responsible for the entire $1,200.00 contract rent commencing in September 2006.

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the months of July and August 2006, and $1,200.00 per month for the months of September, October, and November 2006.

Defendant’s Counterclaims

show that the conditions cannot be remedied unless the premises are vacated.

The Defendant did not file an Answer, but at trial presented counterclaims relating to the condition of the Premises. The Defendant testified that there were significant adverse conditions throughout the Premises during her tenancy. The Defendant testified that her electric meter served numerous common areas of the Building, including the basement and back porch. She further stated that she was informed of the cross-metering by an electrician retained by the Plaintiff in August 2006, and the Plaintiff acknowledged the same. Exhibit 10. The Defendant was credible in her testimony.

Rudy Pierre, a friend of the Defendant, testified that there was an oil leak in the basement of

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the Building during the Defendant’s tenancy. He further stated that the leak persisted for two to three days, and caused fumes to emanate throughout the Building. He was credible in his testimony.

Mayunbe Adeniyi, an Inspector for MBHP, conducted an inspection of the Premises on May 31, 2006[5], and identified numerous additional defects and conditions in the Premises in a letter dated June 5, 2006, and addressed to the Plaintiff. Those conditions were the following: 1) holes around the outlets in the kitchen; 2) rear right burner on the stove not in working order; 3) dish sprayer in the sink not in working order; 4) shut-off valve for the toilet missing; 5) broken screen in the front right bedroom; 6) missing caulking around the trim in the bathroom and the wall angle above the bathtub; 7) closet door in rear left bedroom loose from hinge; 8) no graspable doorknob in the rear left bedroom; 9) cracks in the rear left bedroom ceiling; 10) missing handrail on the basement stairs; 11) no outlet cover or light

switch on the wall of the basement boiler room; 12) loose wiring around oil tank and above hot water tank; 13) cracks in the foundation wall; 14) rotted wall boards on the exterior of the building near the porch; 15) mildew on the porch; 16) cracks in the columns on the front porch; 17) oil burner and pipe not properly buried; 18) missing handrails and cracks on the rear stairs; 19) missing light fixture at the rear exit; 20) holes between the flue pipe and chimney wall; and 21) missing carbon monoxide detectors throughout the Premises. Exhibit 2.

In a follow-up inspection conducted by Inspector Adeniyi on June 22, 2006, several adverse conditions remained at the Premises. Those defects were: 1) a missing handrail on the basement stairs; 2) no outlet cover or light switch on the wall of the basement boiler room; 3) loose wiring

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[5] MBHP conducted an initial inspection of the Premises on April 27, 2006, but there was no evidence or testimony to indicate that the Plaintiff was informed of the April 2006 inspection

results.

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above hot water tank; 4) cracks in the foundation wall; 5) rotted wall boards on the exterior of the building near the porch; 6) mildew on the porch; 7) cracks in the columns on the front porch; 8) oil burner and pipe not properly buried; 9) missing handrails and cracks on the rear stairs; 10) holes between the flue pipe and chimney wall; and 11) missing carbon monoxide detectors throughout the Premises. Exhibit 3.

The June 22, 2006, inspection report also reflected that certain conditions as identified in the May 31, 2006 inspection had been repaired, including the following: 1) holes around the outlets in the kitchen were filled; 2) rear right burner on the stove was repaired; 3) dish sprayer in the kitchen sink was repaired; 4) shut-off valve for the toilet was replaced; 5) broken screen in the front right bedroom was repaired/replaced; 6) missing caulking around the trim in the bathroom and the wall angle above the bathtub was replaced; 7) closet door in rear left bedroom was repaired; 8) doorknob in the rear left bedroom was replaced; 9) cracks in the rear left bedroom ceiling were repaired; and 10) missing light fixture at the rear exit was replaced. Exhibit 3.

In a letter dated July 7, 2006, and addressed to the Plaintiff, the MBHP notified the Plaintiff that all rent subsidy payments would be suspended pending completion of the repairs as noted in the MBHP inspection reports. Further, in a letter dated July 17, 2006 and addressed to the Plaintiff, MBHP informed the Defendant that the MBHP was terminating her rental assistance contract on August 31, 2006, due to the Plaintiff’s failure to bring the Premises into compliance. Exhibit 4. At trial, the Defendant stated that the necessary repairs as noted in the May 31, 2006, MBHP inspection report had not yet been completed. She was credible in her testimony.

The Plaintiff confirmed that some of the common areas of the Building, including the

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basement and back porch, were improperly connected to the Defendant’s electric meter and that the Defendant had been overcharged for electricity as a result. The Plaintiff testified that she was notified of the problem sometime in August 2006, and that it had been fixed by an electrician on or about August 28, 2006. Exhibit 10. The Plaintiff further testified that, on or about August 28, 2006, she had smoke and carbon monoxide detectors installed throughout the Premises. Exhibit 10.

The Plaintiff testified that many of the interior items as noted in the MBHP inspection reports had been completed in May 2006, and that the exterior work had been completed by the date of trial. She was not specific as to dates of repair, nor was she specific as to the items that had been repaired. She was otherwise credible in her testimony.

The Implied Warranty of Habitability

The implied warranty of habitability is the landlord’s promise that the premises will meet certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the tenant is in material violation of the minimum standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). A landlord must have actual or constructive notice of the condition creating the violation. McKenna v. Begin, 3 Mass.App.Ct. 168 (1975). Damages are assessed from the date the landlord had notice of the condition of disrepair. Berman & Sons v. Jefferson, 379 Mass. 196 (1979). The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises as warranted and the fair rental value of the premises with the defects. McKenna v. Begin, supra at 172.

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The Court finds that the conditions at the Premises as noted in the MBHP inspection reports, Exhibits 2 and 3, and as testified to by the Defendant violated the implied warranty of habitability. MBHP asserted in its inspection reports and the Court finds that portions of the Premises were not in compliance with the State Sanitary Code from May 31, 2006, the date of the initial inspection of which the Plaintiff received notice, through June 21, 2006. Several conditions existed during this period, including: 1) holes around the outlets in the kitchen; 2) rear right burner on the stove not in working order; 3) dish sprayer in the sink not in working order; 4) shut-off valve for the toilet missing; 5) broken screen in the front right bedroom; 6) missing caulking around the trim in the bathroom and the wall angle above the bathtub; 7)

closet door in rear left bedroom loose from hinge; 8) no graspable doorknob in the rear left bedroom; 9) cracks in the rear left bedroom ceiling; 10) missing handrail on the basement stairs; 11) no outlet cover or light switch on the wall of the basement boiler room; 12) loose wiring around oil tank and above hot water tank; 13) cracks in the foundation wall; 14) rotted wall boards on the exterior of the building near the porch; 15) mildew on the porch; 16) cracks in the columns on the front porch; 17) oil burner and pipe not properly buried; 18) missing handrails and cracks on the rear stairs; 19) missing light fixture at the rear exit; 20) holes between the flue pipe and chimney wall; and 21) missing carbon monoxide detectors throughout the Premises. Exhibit 2. Further, there was no testimony or evidence presented at trial to indicate that any of the above repairs were completed prior to the June 22, 2006, inspection. Accordingly, the Court finds that, from May 31, 2006, through June 21, 2006, the Defendant is

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entitled to a rent abatement of forty per cent (40%), calculated as follows: $39.45/day[6] x 40% = $15.78/day x 22 days[7]= $347.16.

The Court further finds that, from June 22, 2006, the date of the final inspection, through November 9, 2006, the date of trial, the following conditions at the Premises violated the State Sanitary Code and the implied warranty of habitability: 1) missing handrail on the basement stairs; 2) no outlet cover or light switch on the wall of the basement boiler room; 3) loose wiring around oil tank and above hot water tank; 4) cracks in the foundation wall; 5) rotted wall boards on the exterior of the building near the porch; 6) mildew on the porch; 7) cracks in the columns on the front porch; 8) oil burner and pipe not properly buried; 9) missing handrails and cracks on the rear stairs; and 10) holes between the flue pipe and chimney wall. Accordingly, the Court finds that the Defendant is entitled to a rent abatement of twenty-five per cent (25%), calculated as follows: $39.45/day x 25% = $9.86 x 141 days[8] = $1,390.26. The total rent abatement due the Defendant is $1,737.42[9].

Quiet Enjoyment and Cross-Metering of Electricity

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[6] The per diem rental rate is calculated as follows: $1,200.00/month x 12 months = $14,400.00 – 365 days = $39.45/day.

[7] The period from May 31, 2006 through June 21, 2006 is 22 days.

[8] The period from June 22, 2006 through November 9, 2006, the date of trial, is 141 days.

[9] $347.16 + $1,390.26 = $1,737.42.

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damages, or three months’ rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee…” A landlord violates M.G.L. c. 186, s.14 where he had notice, or reason to know of the serious condition in the tenant’s apartment, and failed to take appropriate corrective measures. Al Ziab v. Mourgis, 424 Mass. 847, 850-851(1997); Cruz Management Co., Inc. v. Thomas, 417 Mass. 782 (1994).

(1982).

The Defendant alleges that the Plaintiff breached the covenant of quiet enjoyment because conditions in the Premises did not meet the standards of fitness for human habitation. Specifically, the Defendant contends that the numerous violations throughout the Premises, as noted in her testimony and in the MBHP inspection reports, coupled with the Plaintiffs failure to promptly address those conditions, breach the covenant of quiet enjoyment.

The Court finds that the numerous adverse conditions at the Premises, including those enumerated by the MBHP inspection reports, and testimony by the Defendant and Rudy Pierre, clearly establish the Defendant’s counterclaim that the Plaintiff breached the Defendant’s quiet enjoyment of the Premises.

M.G.L. c. 186, s. 14 also states in relevant part, “Any lessor or landlord … who transfers the responsibility for payment for any utility services to the occupant without his knowledge or consent

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…shall also be liable for actual and consequential damages or three month’s rent, whichever is greater, and the costs of the action, including reasonable attorney’s fee … .” The Plaintiff acknowledged in her testimony that the Defendant’s electric meter served common areas of the Building from the inception of the tenancy to August 2006. Further, both parties testified, and the Court finds, that the Defendant paid for electric usage in common areas without her knowledge and/or consent. The Court finds that the Plaintiff should have known of the cross-metering of the electricity at the time she first leased the Premises to the Defendant. While the Plaintiff may not have had actual knowledge of the cross-metering prior to August 2006, the cross-metering occurred in a common area for which she had responsibility and as to which she could have had knowledge. Accordingly, the Court finds that the Plaintiff improperly transferred responsibility for electricity payments to the Defendant in violation of M.G.L. c.

186, s. 14. See Shuman v. Burns, Boston Housing Court Docket No. 98-SP-00938 (April 1, 1998)(Winik, J.).

Under M.G.L. c. 186, s.14, the Defendant is entitled to actual and consequential damages or three month’s rent (whichever is greater) for the cross-metering violation, plus costs and attorney’s fees. Actual damages are determined pursuant to 220 C.M.R. s.s.29.07 and 29.08.[1] Electrical devices cross-wired to Defendant’s meter during her tenancy included a back porch light fixture and the basement light fixtures. The Court finds that these cross-metering violations constitute a “minimal use violation” under 220 CMR s. 29.08. Therefore, actual damages suffered by Defendant

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[1] Under s.29.07, a landlord is responsible for a tenant’s entire utility bill for the duration of a cross-metering violation

unless the violation constitutes a “minimal use violation” under s.29.08. Section 23.08 defines minimal use violation as “a Code violation(s) that individually or in the aggregate includes interior and or/exterior common area illumination (excluding exterior flood light(s)), smoke, fire and/or security alarms(s), door bell(s), cooking range, and common area electrical outlets.” Where there is a minimal use violation, the landlord is liable for $10.00 per month, not the tenant’s entire utility bill, as long as the cross-metering does not involve the wrongful connection of heating, air conditioning, hot water heating, electrical pumps, clothes dryers, refrigerators or freezers.

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for the cross-metering violation total $140.00, calculated as follows: $10.00 x 14 months (July 2005 – August 2006). Because three months’ rent is greater than actual damages, the Court will award statutory damages in the amount of $3,600.00, plus costs and 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 enters for the Plaintiff for unpaid rent in the amount of $3,974.00, plus costs.

2. Judgment enters for the Defendant for the Plaintiff’s breach of the covenant of quiet enjoyment including cross-metering pursuant to M.G.L. c. 186 s.14, in the amount of $3,600.00, plus costs.

3. Judgment enters for the Defendant for the Plaintiff’s breach of the implied warranty

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of habitability, but no duplicative damages are awarded.

4. The foregoing orders for judgment paragraphs 1 through 3 result in a net balance of unpaid rent due the Plaintiff under M.G.L. c. 239, s.8A in the amount of $374.00, plus costs.

5. Judgment enters for the Defendant for possession pursuant to the fifth paragraph of M.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 $374.00, plus costs. 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, plus costs, on the next business day following the expiration of the tenth (10`h) day from the date of this Order.

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

cc: Layla Cable

145 Millet Street #2

Dorchester, MA 02124

Anjanette Jones

145 Millet Street #1

Dorchester, MA 02124

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End Of Decision

HOUSING COURT

JAMES WADE VS. ILLONA G. WINDLEY

BOSTON DIVISION SUMMARY PROCESS

Docket # 06-SP-02898

Parties: JAMES WADE VS. ILLONA G. WINDLEY

Judge: /s/ WILBUR P. EDWARDS, ASSOCIATE JUSTICE

Date: January 4, 2007

MEMORANDUM OF DECISION ON DEFENDANT’S MOTION FOR RECONSIDERATION

On October 25, 2006, this Court, Edwards, J. issued an Order for Judgment in this summary process case. On November 3, 2006, the Defendant , Illona G. Windley timely filed a Notice of Appeal along with a Motion to Waive Appeal Bond with the Court. On November 16, 2006 with both pro se parties present, the Court heard the Defendant ‘s Motion to Waive Appeal Bond. Following the oral presentations of both parties and on further review of the written motion, the pleadings and the evidence presented at trial in this case, the Court determined that the Defendant’s motion should be considered as a Motion to Reconsider the Court’s Judgment. The Court heard further arguments on December 7, 2006 on both the Motion for Reconsideration and the Defendant’s Motion to Waive Appeal Bond.

The first argument made by the Defendant in her Motion for Reconsideration was that the Court did not correctly indicate that she had filed a timely Answer and Counterclaim in this matter. The Court notes that she is correct in this as far as the Court’s preamble in the Judgment is concerned. The preamble is not a finding by the Court but an introduction to the decision. As noted in the Court’s decision, she did present both a full defense and counterclaims during the trial against the Plaintiff. The Court finds that there is no prejudice to the Defendant with this minor omission

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in the Decision as to the filing of a written answer and counterclaims.

The Defendant argues that the Court did not correctly attribute or award damages to her for conditions in the Premises. The Court awarded damages to the Defendant for the Plaintiff’s breach of the implied warranty of habitability as the Court found based on the evidence presented to it, that the Plaintiff only received notice of said conditions three days prior to trial. Accordingly, Defendant’s Motion for Reconsideration is DENIED.

The Court is concurrently issuing an Order on Defendant’s Motion to Waive Appeal Bond.

SO ORDERED.

cc: James Wade

82 Nightingale Street #2

Dorchester, MA 02124

Illona G. Windley

82 Nightingale Street #3

Dorchester, MA 02124

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End Of Decision

HOUSING COURT

JAMES WADE VS. ILLONA G. WINDLEY

BOSTON DIVISION SUMMARY PROCESS

Docket # 06-SP-02898

Parties: JAMES WADE VS. ILLONA G. WINDLEY

Judge: /s/ WILBUR P. EDWARDS JR.

ASSOCIATE JUSTICE

Date: January 4, 2007

ORDER ON DEFENDANT’S MOTION TO WAIVE APPEAL BOND

The Plaintiff commenced this summary process action alleging nonpayment of rent and seeking possession of the premises occupied by the Defendant at 82 Nightingale Street #3, Dorchester, MA. The Defendant filed a written Answer and Counterclaims alleging retaliation and breach of the implied warranty of habitability at trial on September 28, 2006 (Edwards, J. presiding). The Plaintiff prevailed on his claims for possession and damages in the amount of $1,389.65 after an offset to the Defendant.[1] The Defendant filed a Notice of Appeal and the Motion to Waive Appeal Bond. A hearing on this motion was held on December 7, 2006.

Under the provisions of M.G.L. c.239, s.5, a defendant is required to give bond in such reasonable amount as the Court orders. The appeal bond must be conditioned to pay the plaintiff, if final judgment is in its favor: (1) all rent accrued at the date of the bond; (2) all intervening rent; and (3) all damage or loss the plaintiff may sustain by the withholding of possession of the premises and by any injury to the premises caused by the defendant until delivery of possession to the plaintiff.

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[1] The Court has concurrently issued a memorandum of Defendant’s Motion for Reconsideration.

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The Court shall waive the appeal bond only if it is satisfied that the defendant has a defense that is not frivolous and that he is indigent. Tamber v Desrochers, 45 Mass.App.Ct. 234 (1998).

The Court finds that the Defendant is not indigent within the meaning of M.G.L. c.261, s. 27A. The Defendant testified that prior to the trial date and the date of the filing of the appeal, she had taken care of her terminally ill mother in another apartment within the same building owned by the Plaintiff. She testified at the hearing on December 7, 2006 that her mother had died. While the Court is sympathetic to the Defendant’s loss, she failed to testify as to any additional reason that she could not now proceed with the appellate entry fees and related costs for an appeal. The Court further finds that the Defendant has no non-frivolous defenses. The Defendant testified to the various conditions in the Premises at the trial, but there was no credible evidence presented to the Court’s satisfaction that the conditions were reported to the Plaintiff prior to the Inspectional Services Department report of September 25, 2006, three days prior to the trial date. Since the Defendant has presented no non-frivolous defenses at this time, her Motion to Waive Appeal Bond is DENIED and she will be required to give bond.

In accordance with the requirements of M.G.L. c.239, s. 5, it is ORDERED that the appeal bond be set at $4,889.65. This amount is the judgment amount of $1,389.65, plus the amount of unpaid rent that has accrued for September, October, November, December 2006

and January 2007 in the amount of $ $3,500.00 ($700 x 5). Additionally, as a condition of the bond, the Defendant shall pay

to the Plaintiff the monthly rent owed for the months of February 2007 going forward to the Plaintiff on or before the first day of every month for use and occupancy of the Premises. Any payment not so made shall be a violation of this Order regarding the appeal bond.

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Within ten (10) days from 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 $4,889.65 payable to the Plaintiff, with sufficient sureties approved by the Court, or secured by cash or its equivalent. If the Defendant fails to comply with this bond order, then on the eleventh (11`}’) day from the date of this Order, the Defendant’s appeal shall be dismissed and the execution for possession and damages shall issue.

SO ORDERED.

cc: James Wade

82 Nightingale Street #2

Dorchester, MA 02124

Illona G. Windley

82 Nightingale Street #3

Dorchester, MA 02124

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End Of Decision

HOUSING COURT

URBAN EDGE REAL ESTATE OF GREATER BOSTON, INC. d/b/a URBAN EDGE PROPERTY MANAGEMENT, managing agents for WARDMAN UE LIMITED PARTNERSHIP VS. BRENDA FRAZIER

BOSTON DIVISION SUMMARY PROCESS

Docket # 06-SP-03185

Parties: URBAN EDGE REAL ESTATE OF GREATER BOSTON, INC. d/b/a URBAN EDGE PROPERTY MANAGEMENT, managing agents for WARDMAN UE LIMITED PARTNERSHIP VS. BRENDA FRAZIER

Judge: /s/ WILBUR P. EDWARDS, J ASSOCIATE JUSTICE

Date: January 4, 2007

MEMORANDUM OF DECISION ON DEFENDANT’S MOTION FOR RECONSIDERATION OF COURT’S RULING TO STRIKE CERTAIN DEFENSES AND COUNTERCLAIMS

The Plaintiff brought this summary process action to obtain possession from the Defendant for an alleged breach of the Occupancy Agreement (the “Agreement”) between the parties. The Defendant filed an Answer and Counterclaims alleging, among other matters, violation by the Plaintiff of anti-discrimination laws and failure to reasonably accommodate the Defendant.

Now before the Court is the Defendant’s Motion to Reconsider the Court’s November 7, 2006 Memorandum of Decision (Edwards, J.). In that Memorandum of Decision, the Court allowed a motion brought by the Plaintiff and struck the Defendant’s fourth and fifth defenses and transferred the Defendant’s Counterclaims to the civil docket. The Defendant has now filed a Motion for Reconsideration, arguing that the fourth and fifth defenses along with the counterclaims should remain and requesting that the Court reverse its previous decision based upon additional facts.

The Plaintiff has opposed the Defendant’s motion, arguing that the request for reasonable

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accommodation was not timely made, that the Plaintiff does not have to provide a reasonable accommodation for behavior involving illegal firearms and drugs, that there is no nexus between the Defendant’s alleged disabilities and the alleged illegal behavior of the household member, and, finally, such counterclaims are not permitted on a “for cause” eviction pursuant to M.G.L. c. 238, s.8A.

On a close reading of the Defendant’s pleading, the only substantive factual items brought to the Court’s attention that were not previously plead relate to the Defendant’s physical disabilities. Assuming for the purposes of this memorandum that the Defendant has all the numerous disabilities described in her motion, there is no recitation that the Defendant ever advised or otherwise requested a reasonable accommodation from the Plaintiff that would assist her in controlling her 18-year old twin sons. The Defendant suggests in her factual summary that the Plaintiff’s knowledge of her receipt of Supplemental Security Income (SSI) benefits imparts an unspoken request to the Plaintiff for a reasonable accommodation. The Court can not make that leap in the context of this case.

For the reasons originally set forth in its Memorandum of Decision of November 7, 2006, the Defendant’s Motion for Reconsideration of Court’s Ruling to Strike Certain Defenses and Sever Counterclaims is DENIED.

SO ORDERED.

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cc: Catherine F. Downing, Esq.

Downing & Flynn

85 Devonshire Street, Suite 1000

Boston, MA 02109

Patricia Whiting, Esq.

Harvard Legal Aid Bureau

23 Everett Street

Cambridge, MA 02138

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End Of Decision

HOUSING COURT

VINCENT C. UNACHUKWU Plaintiff VS. JULIA MITCHELL, Defendant

BOSTON DIVISION

Docket # SUMMARY PROCESS 06-SP-04259

Parties: VINCENT C. UNACHUKWU Plaintiff VS. JULIA MITCHELL, Defendant

Judge: /s/ WILBUR P. EDWARDS,

ASSOCIATE JUSTICE

Date: February 8, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

This is a summary process action in which the plaintiff, Vincent C. Unachukwu, is seeking to recover possession of the premises occupied by the defendant, Julia Mitchell, as well as $2,090.00 in damages for unpaid rent/use and occupancy. The defendant timely filed an Answer asserting defenses and counterclaims for discrimination, retaliation, violation of the Massachusetts Consumer Protection Act (G.L. c. 93A), violation of the Security Deposit Law (G.L. c. 185, s. 15B), breach of the implied warranty of habitability, and breach of quiet enjoyment. Both parties appeared pro se and testified at the trial held on December 14, 2006.

Based upon the testimony and other evidence presented at trial and the reasonable inferences drawn therefrom, in light of the governing law, the Court finds as follows:

The plaintiff owns and lives in the buildings at 9-11 Albemarle Street (“the buildings”), which apparently are attached,

in Readville, Massachusetts.[1] The buildings are a three-family

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[1] The Court takes judicial notice that Readville is officially part of Boston’s Hyde Park neighborhood.

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structure. Pursuant to a one-year written lease, Exhibit 1, the defendant has lived in the second floor unit (“the premises”) since July 1, 2006. According to its terms, the lease expires on June 31 [sic], 2007. The defendant’s monthly rent is $950.00, due on the first day of each month. The defendant paid the agreed upon rent owed for July, August, and September 2006 but paid only partial rent for the months of October and November 2006; she paid no rent for December 2006. See Exhibits 3-5.

On November 7, 2006, the plaintiff served, via Constable, a legally sufficient 14-day Notice to Quit for Non-Payment of Rent on the defendant. Exhibit 2. The plaintiff commenced this summary process action on November 25, 2006 by serving the Summary Process Summons and Complaint on the defendant via Constable. The Complaint contains an Account Annexed of $1,170.00 representing rent allegedly owed for October and November 2006.

The Court finds that the plaintiff has proven his prima facie case for possession of the premises and damages for unpaid rent/use and occupancy in the amount of $2,090.00 ($570.00 per month for October and November 2006 plus $950.00 for December 2006) subject to the Court’s rulings on the defendant’s defenses and counterclaims.

THE DEFENDANT’S DEFENSES AND COUNTERCLAIMS

Paragraph 2 of the lease states that the plaintiff will rid the premises of mice and roaches, install carpeting, paint the premises, and provide a refrigerator. On July 3, 2006, two days after the commencement of the lease, the parties entered into a written agreement, Exhibit 18, whereby the plaintiff agreed to complete these pending repairs before July 15, 2006; if the repairs were not timely made, the plaintiff agreed to prorate the defendant’s rent and credit her for a portion of her prepaid rent. The plaintiff failed to provide the defendant with a refrigerator pursuant to this side-agreement and the defendant purchased one which was delivered and installed on or about

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July 31, 2006. With agreement of the plaintiff, the defendant deducted $400.00 from August’s rent for the purchase of the refrigerator. See Exhibit 7.

At the defendant’s request, the City of Boston’s Inspectional Services Department (“ISD”) inspected the premises on or about August 23, 2006. As a result of the inspection, ISI) issued an emergency notice dated August 23, 2006, Exhibit 9, instructing the plaintiff to install working smoke detectors in the kitchen, bedroom and front hall of the premises within 24 hours. Neither the

plaintiff nor the defendant testified as to whether the plaintiff complied with the emergency notice within the 24 hour period.

ISD issued a second notice dated August 23, 2006, Exhibit 10, to the plaintiff ordering him to address the following seven enumerated violations of the State Sanitary Code within 21 days: (1) rodent droppings under the kitchen sink; (2) dirty and unsanitary stove, see Exhibit 8 (photograph); (3) rodent infestation in the kitchen and bedroom; (4) dirty heating vents; (5) defective hand railing on stairs leading to the bedroom; (6) kitchen storm door in disrepair; (7) bedroom window in disrepair. The defendant testified that, with the exception of the heating vents, all of the conditions were addressed on or about October 12, 2006. See Exhibit 17.

On September 13, 2006, the defendant sent a letter, Exhibit 11, via certified mail to the plaintiff, also addressing some of the issues raised in the August 23, 2006 ISD Order(s). In the September 13, 2006 letter, the defendant informed the plaintiff that she opted to purchase a new stove, see Exhibit 8 (receipt), because she was dissatisfied with the manner in which the existing stove had been cleaned and disinfected. She further mentioned that there was no heat flowing from any of the vents on the second floor. There was no testimony by either party to indicate that the plaintiff attempted to correct the heat issue. The defendant testified that she contacted various municipal departments, including ISD, on or about September 25, 2006. She testified

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that she also contacted utility companies in an attempt to resolve the heating issue. ISD again inspected the property on or about September 26, 2006 and documented that the furnace was not working. See Exhibit 13.

On or about October 10, 2006, the defendant informed the plaintiff that she would be withholding rent until all adverse conditions at the premises, including the heat, were corrected. See Exhibit 14. On or about October 19, 2006, the defendant wrote a note to the plaintiff indicating to him that she was deducting $570.00 from October’s rent pursuant to G.L. c. 111, s. 127L for the following repairs that she made to the premises: (1) $100.00 to paint a room; (2) $100.00 to connect the new stove; (3) $325.00 for painting, removal of rodent droppings, and other miscellaneous repairs; (4) $45.00 given to the plaintiff for a closet door. See Exhibit 6.

On or about November 9, 2006, the defendant again contacted ISD. ISD inspected the premises on or about November 15, 2006 and noted problems with the kitchen flooring, the continued rodent infestation, a broken door in the bedroom, and the absence of a smoke detector in the front hall. See Exhibit 15.

G.L. c. 111, s. 127L

G.L. c. 111, s. 127L states, “When violations of the standards of fitness for human habitation as established in the state sanitary code … may endanger or materially impair the health, safety or well-being of a tenant of residential premises … and if

the owner or his agent has been notified in writing of the existence of the violations and has failed to begin all necessary repairs or to contract in writing with a third party for such repairs within five days after such notice .. .the tenant or tenants may repair or have repaired the defects or conditions constituting the violations [and] [t]he tenant or tenants may subsequently deduct from any rent which may subsequently become due … an amount necessary to pay for such repairs.”

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The defendant testified that she was legally withholding rent because of the plaintiff’s failure to address several conditions of disrepair that were present at the premises since the inception of her tenancy and that she paid for certain repairs made to the premises and deducted the cost of the repairs from the rent owed pursuant to G.L. c. 111, s. 127L.

The Court finds that, pursuant to G.L. c. 111, s. 127L, the defendant properly deducted $570.00 from the rent owed for October 2006 for repairs she made to the premises. All the repairs for which the defendant paid for and deducted from the rent owed for October 2006 were either mentioned in the July 3, 2006 written side-agreement between the parties or documented by ISD during their many visits to the premises as violations of the State Sanitary Code that may endanger the health or safety of the occupants. The plaintiff had ample opportunity to correct these items on his own but, from the testimony presented, failed to do so. In response to the plaintiff’s inaction, the defendant pursuant to the statute and the agreement between the parties facilitated the needed repairs and was entitled to deduct the $570.00 spent on such repairs (which the Court finds to be a reasonable amount for the work performed) from the rent she owed to the plaintiff for October 2006.

Accordingly, the Court finds that the defendant is entitled to $570.00 as damages or set-off pursuant to G.L. c. 111, s. 127L for repairs she completed to the premises. Therefore, the maximum amount of damages that the Court may award to the plaintiff on his claim for unpaid rent is reduced by $570.00 (from $2,090.00 to $1,520.00).

Security Deposit

The defendant presented no testimonial evidence that she tendered a security deposit to the plaintiff prior to, at the inception of, or at any time during her tenancy at the premises.

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Furthermore, the lease is silent as to the issue. Accordingly, judgment shall enter for the plaintiff on the defendant’s security deposit counterclaim.

G.L. c. 93A

The plaintiff resides in the attached buildings that house the premises and two other units. The defendant offered no testimony or other evidence, such as whether the plaintiff owns other rental

property, at trial. The only evidence presented was that the plaintiff also resided in the same building as the premises. Therefore, the defendant has failed to meet her burden that G.L. c. 93A applies to this case. See e.g. Billings v. Wilson, 397 Mass. 614, 616 (1986) (holding G.L. c. 93A not applicable in circumstances whether the rental unit is in an owner-occupied two-family house and where the landlord owns no other real property).

Accordingly, judgment shall enter for the plaintiff on the defendant’s G.L. c. 93A counterclaim.

Discrimination

The defendant presented no testimony or evidence of discrimination against her by the plaintiff as to a disability. Accordingly, judgment shall enter for the plaintiff on the defendant’s discrimination counterclaim.

Retaliation

A tenant has a claim for damages under G. L. c. 186, s.18 if the landlord’s act of commencing a summary process action or serving the tenant with a notice to quit was in retaliation for, among other things, the tenant’s reporting a violation or suspected violation of law to a health or building department, or reporting a violation or suspected violation of law in writing to the landlord as provided in G. L. c. 186, s.18. Unless the tenancy is terminated for non-payment of rent, the commencement of a summary process action against a tenant or the

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sending of a notice to quit within 6 months of the tenant engaging in one or more of the protected activities enumerated in the statute creates a rebuttable presumption of retaliation. The burden then shifts to the landlord to rebut the presumption by presenting clear and convincing evidence that such actions were not taken in reprisal for the tenant’s protected activities, that the landlord had sufficient independent justification for taking such action and that the landlord would have taken such action in any event, even if the tenant had not taken the actions protected by the statute. A tenant who is successful in proving a claim of retaliation is entitled to the greater of actual damages or between one and three month’s rent, plus costs and attorney’s fees.

A tenant who has a retaliation claim under G. L. c. 186, s.18 also has a defense under G. L. c. 239, s.2A if the landlord has asserted a claim for possession. The list of protected tenant activities is the same in both statutes. Even if the tenancy is terminated for non-payment of rent (unlike the claim for damages under G. L. c. 186, s. 18), the commencement of a summary process action against a tenant or the sending of a notice to quit within 6 months of the tenant engaging in one or more of the protected activities enumerated in the statute creates the rebuttable presumption of retaliation. A tenant who is successful in proving a retaliation defense is entitled to maintain possession of the premises.

The Court finds that plaintiff impermissibly retaliated against the defendant by terminating her tenancy because she either wrote to him concerning the conditions or reported the conditions of disrepair at the premises to ISD. The defendant is entitled to a rebuttable presumption of retaliation under G. L. c. 239, s. 2A, even though her tenancy was terminated for non-payment of rent, because the plaintiff served her with the notice to quit on November 7, 2006, which was within six months of the defendant first contacting ISD concerning the conditions at the premises (August 23, 2006). The plaintiff did not present any evidence in

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rebuttal to the presumption of retaliation. Additionally, the Court finds that even absent a presumption of retaliation, the plaintiff has met her burden in proving her retaliation counterclaim under G.L. c. 186, s. 18. The plaintiff was aware of the numerous adverse conditions at the premises when he terminated the defendant’s tenancy in November 2006. He was also aware as early as October 10, 2006 that the defendant was withholding rent in an escrow account due to the conditions at the premises, including the lack of heat. However, instead of remedying the conditions at the premises, the plaintiff terminated the defendant’s tenancy for non-payment of rent.

Accordingly, judgment shall enter for the defendant on her retaliation counterclaim and the Court awards damages in the amount of one month’s rent ($950.00) pursuant to G.L. c. 186, s. 18. Further, the defendant is entitled to retain possession of the premises under G. L. c. 239, s. 2A.

Implied Warranty of Habitability

The implied warranty of habitability is the landlord’s promise that the premises will meet certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the tenant is in material violation of the minium standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199-200 (1973). A landlord must have actual or constructive notice of the condition creating the violation. McKenna v. Begin, 3 Mass.App.Ct. 168, 171-172 (1975). Damages are assessed from the date the landlord had notice of the condition of disrepair. Berman & Sons v. Jefferson, 379 Mass. 196, 203 (1979). The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of

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the premises as warranted and the fair rental value of the premises with the defects. McKenna, 3 Mass.App.Ct. at 172.

The Court finds that due to the aggregate of conditions at the premises testified to by the defendant and documented in exhibits discussed supra, the plaintiff committed a breach of the implied warranty of habitability during the defendant’s tenancy and

occupancy at the premises. The lack of working smoke detectors along with the rodent infestation, defective hand railing, and lack of adequate heat constituted material breaches of the State Sanitary Code, with each one of these particular violations alone creating a hazardous or unsanitary condition that adversely affected the health and safety of the defendant. The Court further finds that all the conditions noted in the two August 23, 2006 ISD orders were present at the inception of the tenancy and therefore, the plaintiff had constructive notice of them as of that date. Id. at 172-174. The Court also finds that the plaintiff had actual notice of the heating problem on or about September 13, 2006 and actual notice of the problems with the kitchen flooring and the broken bedroom door on or about November 15, 2005.

The Court determines that the fair rental value of the premises in good repair is $950.001 per month for all times relevant to the defendant’s breach of the implied warranty of habitability counterclaim and finds that the fair rental value of the premises was reduced by 40% from the inception of the lease through the date of trial (December 14, 2006) due to presence of the aforementioned adverse conditions of the premises. The amount of the reduction determined by the Court is an aggregate amount that takes into account when the plaintiff was put on notice of the various violations, when various repairs were made, and which repairs were not made as of the date of trial. The Court determines that the defendant is entitled to a rent abatement as

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follows: $31.23[2] per day x 40% = $12.49 x 167 days = $2,085.83 (for the period of July 1, 2006 through December 14, 2006).

Accordingly, the amount due the defendant on her counterclaim for breach of the implied warranty of habitability is $2,085.83.

Quiet Enjoyment

G.L. c. 186, s.14 provides that any landlord who “directly or indirectly interferes with the quiet enjoyment of any residential premises … shall also be liable for actual and consequential damages or three month’s rent, whichever is greater, … which may be applied in setoff to or in recoupment against any claim for rent owed or owning.” While the statute does not require the landlord’s conduct be intentional, Simon v. Solomon, 385 Mass. 91, 102 (1982), it does require proof that the landlord’s conduct caused a serious interference with the tenant’s quiet enjoyment of the premises. A serious interference with the tenant’s quiet enjoyment is an act or omission that impairs the character and value of the leased premises. Doe v. New Bedford Housing Authority, 417 Mass. 273, 284-85 (1994); Lowery v. Robinson, 13 Mass.App.Ct. 982, 982 (1982) (rescript opinion). When a landlord breaches the statutory covenant of quiet enjoyment, the tenant is not only entitled to recover the greater of actual damages or three month’s rent, but also reasonable costs and attorney’s fees.

The Court finds that the plaintiff breached the statutory covenant of quiet enjoyment by failing to promptly correct such serious conditions as the rodent infestation, lack of heat, and absence of working smoke detectors, despite repeated notice by both

ISD and the defendant. Since the inception of the defendant’s tenancy, the plaintiff’s inaction in repairing the conditions caused the defendant to endure unhealthy and distressing conditions. Such inaction materially

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[2] The per diem rent is calculated as follows: $950.00 x 12 = $11,400 _ 365 = $31.23.

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impaired the character and value of the premises and therefore constituted a serious interference with the defendant’s quiet enjoyment. Accordingly, the Court finds that the defendant is entitled to the value of three months rent ($2,850.00), that amount being greater than the $2,085.83 in actual damages (as computed under the breach of the implied warranty of habitability analysis), for the plaintiff’s breach of the statutory covenant of quiet enjoyment.

G. L. c. 239, s. 8A

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 a defense to possession 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 has prevailed on her counterclaims for retaliation, breach of the implied warranty of habitability, and breach of the statutory covenant of quiet enjoyment. The amount of damages awarded to the defendant on these counterclaims is greater than the amount awarded to the plaintiff on his claim for unpaid rent. Furthermore, the plaintiff had constructive notice of some of the adverse conditions prior to the inception of the tenancy and had actual notice of the majority of the remaining adverse conditions prior to the defendant being in arrears in her rent. Additionally, the plaintiff has not shown that any of the conditions were caused by the defendant

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or that any of the outstanding conditions cannot be remedied unless the defendant vacates the premises.

Accordingly, the defendant is entitled to possession of the premises pursuant to G.L. c. 239, s. 8A.

Double Recovery

The defendant is entitled to rely on whatever theory of recovery grants her the greatest measure of damages, but she may not recover duplicative damages for the same injury. Wolfberg v. Hunter, 385 Mass 390, 401 (1982).

The defendant may not recover duplicative damages for the same adverse conditions under both breach of the implied warranty of habitability and the theory of breach of quiet enjoyment. Accordingly, the Court shall award the defendant damages under the theory of breach of quiet enjoyment.

Repair Order

The Court further orders the plaintiff, at his sole expense, to timely cure within twenty-. one (21) days of the day of this judgment all outstanding violations of the State Sanitary Code at the premises as identified in the various ISD notices referenced in this decision. Furthermore, the work shall be completed in a good and workmanlike manner and with the acquisition of any necessary permits. Cf. Abrams v. Factory Mutual Liability Ins. Co., 298 Mass. 141, 143 (1937), abrogated in part on other grounds, Hartford Cas. Ins. Co. v. New Hampshire Ins. Co., 417 Mass. 115 (1994); Mass Highway Dept. v. Walsh Contr. Co. of Illinois, 2003 WL 1689624 at *5 (Mass.Super.Ct. Feb. 10, 2003).

ORDER FOR JUDGMENT

In light of the evidence produced at trial, reasonable inferences drawn therefrom, and

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applicable law, the Court ORDERS that judgment shall enter as follows:

1. Judgment enters for the defendant for possession of the premises pursuant to G.L. c. 239, s.s. 2A and 8A.

2. Judgment enters for the plaintiff in the amount of $1,520.00 on his claim for unpaid rent, which is to be set off against the damages awarded to the defendant in accordance with Paragraph 9 of this order for judgment.

3. Judgment enters for the plaintiff on the defendant’s security deposit claim.

4. Judgment enters for the plaintiff on the defendant’s G.L. c. 93A counterclaim.

5. Judgment enters for the plaintiff on the defendant’s discrimination counterclaim.

6. Judgment enters for the defendant in the amount of $950.00 on her retaliation counterclaim, which is to be set off against the damages awarded to the plaintiff in accordance with paragraph 9 of this order for judgment.

7. Judgment enters for the defendant in the amount of $2,850.00 on her breach of quiet enjoyment counterclaim, which is to set off against the damages awarded to the plaintiff in accordance with paragraph 9 of this order for judgment.

8. Judgment enters for the defendant on her breach of the implied warranty of habitability counterclaim but no

duplicative damages shall be awarded.

9. The amount of damages awarded to the plaintiff in paragraph 2 of this order for judgment shall be set off against the damages awarded to the

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defendant in paragraphs 6 and 7 of this order for judgment, which results in a net award of damages for the defendant in the amount of $2,280.00.

10. The plaintiff shall cure all outstanding violations documented by the City of Boston’s Inspectional Services Department through the date of trial within twenty-one (21) days from the date that judgment enters in this case. All work is to be done with appropriate permits, if necessary, at the plaintiff’s sole expense, and in a good and workmanlike manner. Upon twenty-four (24) hours written notice, the defendant shall permit the plaintiff access to complete the work between the hours of 9:00 A.M. and 5:00 P.M. on any day excluding Saturdays, Sundays, and Massachusetts legal holidays.

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End Of Decision

HOUSING COURT

SIREWL COX VS. CRAIG CARTER

BOSTON DIVISION

Docket # SUMMARY PROCESS NO. 06-SP-03654

Parties: SIREWL COX VS. CRAIG CARTER

Judge: /s/WILBUR P. EDWARDS, JR. ASSOCIATE JUSTICE

Date: January 29, 2007

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

Preamble

This is a summary process action in which the Plaintiff, Sirewl Cox, is seeking to recover possession of the premises and damages for unpaid rent from the Defendant. The Defendant, Craig Carter, filed an answer with counterclaims alleging breach of the implied warranty of habitability, breach of the covenant of quiet enjoyment, and violation of M.G.L. c. 93A. The Plaintiff was represented by counsel, and the Defendant appeared pro se.

The Plaintiff’s property manager, Darilyn Gomes-Hamilton, testified that the Plaintiff owns property located at 15 Fuller Street (the “Building”) in the Dorchester section of Boston, MA. The Defendant resides in Apartment 1 (the “Premises”) in the Building. Ms. Gomes-Hamilton testified that the Defendant was a tenant at the Premises prior to the Plaintiff’s purchase of the property in February 2005.

Ms. Gomes-Hamilton further testified that the Defendant’s rent is $1,200.00 per month. She stated that the Metropolitan Boston Housing Partnership (“MBHP”) provided a rental subsidy to the

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Defendant through August 31, 2006 in the amount of $700.00 per month, and that the Defendant’s portion of the rent through August 31, 2006, had been $500.00. Exhibit 1. She further indicated that the Defendant’s rental subsidy through MBHP expired on August 31, 2006, and that since that time, the Defendant has been responsible for the full contract rent of $1,200.00 per month.[1] Exhibit 1. Ms. Gomes-Hamilton stated that, as of the trial on November 16, 2006, the rent due was $3,000.00, representing unpaid rent in the amount of $600.00 for September 2006, and unpaid rent for October and November 2006 at the rate of $1,200.00 per month. She was credible in her testimony.

The Plaintiff served the Defendant with a Notice to Quit on September 30, 2006, alleging unpaid rent in the amount of $600.00 for the month of September 2006. Exhibit 2. The Plaintiff served the Defendant with a Summons and Complaint on October 16, 2006, alleging unpaid rent in the amount of $1,200.00 consisting of rents due for the month of September 2006 in the amount of $600.00, and for the first two weeks of October 2006 at the rate of $300.00 per week.

The Defendant acknowledged owing back rent for the months of October and November 2006 at the rate of $1,200.00 per month.

A landlord has the right to possession pursuant to M.G.L. c. 239 s.1. The Court finds that the Plaintiff has proven her prima facie case for damages against the Defendant for unpaid rent in the amount of $3,000.00, plus costs, calculated at the rate of $600.00 for the month of September 2006 and $1,200.00 per month for the months of October and November 2006.

The Defendant presented his defenses and counterclaims at trial. M.G.L. c. 239, s.8A p.1

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[1] Ms. Gomes-Hamilton testified that she agreed to allow the Defendant to pay $300.00 per week in lieu of one lump sum of $1,200.00 per month.

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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.” Pursuant to M.G.L. c. 239, s.8A p.2, where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to a defense to possession only if: (1) the landlord knew or should have known of the 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.

Defendant’s Implied Warranty of Habitability Counterclaim

The Defendant presented an implied warranty of habitability counterclaim against the Plaintiff as to conditions in the Premises.

The implied warranty of habitability is the landlord’s promise that the premises will meet certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the tenant is in material violation of the minimum standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). A landlord must have actual or constructive notice of the condition creating the violation. McKenna v. Begin, 3 Mass.App.Ct. 168 (1975). Damages are assessed from the date the landlord had notice of the condition of disrepair. Berman & Sons v. Jefferson, 379 Mass. 196

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(1979). The measure of damages for breach of the implied warranty

of habitability is the difference between the fair rental value of the premises as warranted and the fair rental value of the premises with the defects. McKenna v. Begin, supra at 172.

Teisha Williams, the Defendant’s girlfriend, stated that she has lived at the Premises for the last two and one-half years. She stated that the water to the Premises was shut off a total of three times since February 2005. She testified that the windows had been broken in July 2006, but had not since been repaired. Ms. Williams further stated that leaks from the second floor caused water damage to the Premises, and that there were large holes in the ceiling. She identified photographs she and the Defendant took sometime in October 2006 as representing the current condition of the Premises. Exhibits 5 (A-Q). She acknowledged that she has been an employee of the City of Boston Inspectional Services Department for ten years. The Court found her testimony credible.

The Defendant Craig Carter testified that there were several adverse conditions at the Premises, including a broken electric switch plate and a broken door.[2] He testified that both had been broken for four years. Exhibits 5 (A-Q). He further stated on cross-examination that one friend of his broke the windows described by Teisha Williams on or about July 28, 2006 and another friend broke the door. His testimony was credible.

The Defendant failed to present any credible evidence or testimony to indicate that the Plaintiff was aware of the adverse conditions at the Premises prior to the Defendant falling into arrears in his rent. Accordingly, the Defendant is not entitled to a defense to possession pursuant to M.G.L. c. 239, s.8A p.2. Furthermore, the Defendant failed to present any credible evidence to

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[2] The Defendant acknowledged on cross-examination that one

of his guests broke the door.

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indicate that the Plaintiff was notified of the adverse conditions at the Premises at any time prior to service of the Notice to Quit or during the period prior to the actual trial date.[3] Accordingly, the Court finds for the Plaintiff on the Defendant’s counterclaim for breach of the implied warranty of habitability.

Defendant’s Quiet Enjoyment Counterclaim

M.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…” A landlord violates M.G.L. c. 186, s.14 where he had notice, or reason to know of the serious condition in the tenant’s apartment, and failed to take appropriate corrective

measures. Al Ziab v. Mourgis, 424 Mass. 847, 850-851 (1997); Cruz Management Co., Inc. v. Thomas, 417 Mass. 782 (1994).

Not every breach of the implied warranty of habitability constitutes a violation of M.G,L. c. 186, s.14. While the statute does not require that the landlord’s conduct be intentional, Simon v. Solomon, 385 Mass. 91 (1983), it does require that the landlord’s conduct cause a serious

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[3] The Defendant attempted to submit into evidence an inspection report generated by the Boston Inspectional Services Department (the “ISD”) following an ISD inspection of the Premises on October 3, 2006. Exhibit 3, for identification only. Plaintiff’s counsel timely objected, on the grounds that the inspection report lacked proper attestation. M.G.L. c. 233 s.76 provides, in relevant part: “Copies of books, papers, documents and records in any department of the commonwealth or of any city or town, authenticated by the attestation of the officer who has charge of the same, shall be competent evidence in all cases…” The Court finds that the inspector who signed the attestation clause on the Defendant’s ISD inspection report did not conduct the actual inspection of the Premises on October 3, 2006. Further, the Defendant did not present evidence or testimony to indicate that the inspector who signed the attestation clause is “the officer who has charge of the same” pursuant to M.G.L. c. 233 s.76. Accordingly, the Court finds that the ISD inspection report of October 3, 2006, marked as Exhibit 3 for identification, is not admitted as evidence in this matter.

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interference with the tenant’s quiet enjoyment. Doe v. New Bedford Housing Authority, 417 Mass. 273, 284-285 (1994); Lowery v. Robinson, 13 Mass.App.Ct. 982 (1982). The Defendant failed to present credible evidence that the Plaintiff knew or should have known of the conditions at the Premises as alleged by the Defendant. Teisha Williams’ testimony that the water serving the Premises was off shut a total of three times over an almost two year period, absent more, fails to satisfy the Defendant’s burden that the Plaintiff breached the covenant of quiet enjoyment. Accordingly, the Court finds for the Plaintiff on the Defendant’s counterclaim for breach of the covenant of quiet enjoyment.[4]

Defendant’s M.G.L. c. 93A Counterclaim

The Defendant has alleged that the Plaintiff has violated certain provisions of M.G.L. c. 93A

and the regulations of the Attorney General’s Office related thereto. The Defendant has failed to present any evidence or testimony to indicate that the Plaintiff is in a trade or business and would therefore be subject to M.G.L. c. 93A. Accordingly, the Court finds for the Plaintiff on the Defendant’s M.G.L. c. 93A counterclaim.

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 and unpaid rent in the amount of $3,000.00, plus costs in the amount of $180.50.

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[4] In any event, the Court notes that the Defendant testified credibly that his friends caused damage to the windows and doors of the Premises as recently as the summer of 2006.

2. Judgment enter for the Plaintiff on the Defendant’s implied warranty of habitability counterclaim.

3. Judgment enter for the Plaintiff on the Defendant’s quiet enjoyment counterclaim.

4. Judgment enter for the Plaintiff on the Defendant’s M.G.L. c. 93A counterclaim.

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

cc: Robert D. Russo, Esq.

Law Offices of Russo & Scolnick

2 Oliver Street, 8th Floor

Boston, MA 02109

Craig Carter

15 Fuller Street, Apt 1

Dorchester, MA 02124

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End Of Decision

HOUSING COURT

MARIA QUARATO VS. RITA DEVANEY

BOSTON DIVISION SUMMARY PROCESS

Docket # 06-SP-04132

Parties: MARIA QUARATO VS. RITA DEVANEY

Judge: /s/WILBUR P. EDWARDS, JR., ASSOCIATE JUSTICE

Date: January 26, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

This is a summary process action in which the plaintiff, Maria Quarato, is seeking to recover possession of the premises occupied by the defendant, Rita Devaney, as well as $5,000.00 in unpaid rent. The defendant did not file an Answer but appeared and testified at trial during which she presented a defense to the plaintiff’s claims under G. L. c. 239, s. 8A and a counterclaim for breach of the implied warranty of habitability .

Based on the testimony and other evidence presented at trial on December 11, 2006, at which both parties appeared pro se, and the reasonable inferences drawn therefrom in light of the governing law, the Court finds as follows:

The plaintiff testified that she is the owner of the residential property located at 295 Havre Street in East Boston and further testified that her parents were the previous owners of the property, that they gifted the property to her, and that she took title to the property on June 1, 2006. She continued her testimony by stating that her brother, prior to her ownership of the property and

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without her knowledge, leased the premises to the defendant (whose daughter the plaintiff’s brother was dating at the time) for the monthly rent of $1,000.00.[1] The plaintiff testified that the defendant tendered the rent owed for June 2006 to the plaintiff’s brother. She further testified that the defendant paid the plaintiff’s mother $800.00 for July’s rent and retained the $200.00 remaining balance in exchange for work performed at the premises. She continued her testimony by stating that she did not receive any portion of the rent tendered for June and July 2006 and that the defendant has tendered no rent to her since. The Court credits this portion of the plaintiff’s testimony.

On September 8, 2006, the plaintiff served the defendant via Constable with a “Notice to Terminate Tenancy at Will,” which terminated the defendant’s tenancy on November 1, 2006. Exhibit 2. The plaintiff commenced this summary process action by serving the defendant via Constable with the Summary Process Summons and Complaint on November 17, 2006. The Complaint contains an Account Annexed of $4,000.00, which represents rent owed for August through November 2006, and states the following as the reasons why the defendant’s eviction is being sought: “Causing Disturbance with other Tenants, Not Paying Rent.” The Complaint was entered by the Court on November 27, 2006.

The plaintiff has proven her prima facie case for possession

of the premises and $5,000.00 in unpaid rent ($1,000.00 per month for the months of August through December 2006).

The defendant testified that she moved into the premises at the end of May 2006 and that she didn’t know who owned the property at the time. She stated that on or about August 2, 2006, she made a complaint to the City of Boston’s Inspectional Services Department (“ISD”) concerning the conditions at the premises. As a result, ISD inspected the Premises and issued a violation report

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[1] Transfer of title does not automatically terminate a tenancy at will. G.L. c. 186, s. 13.

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dated August 2, 2006, Exhibit 1, outlining 30 separate violations. The violations include exposed wires, missing or damaged screens, broken or ill-fitting window panes and frames, evidence of rodent infestation, missing outlet and light switch plates, and clutter in the interior common areas and rear porch. The Court credits this portion of the defendant’s testimony.

The plaintiff testified that she did not receive the August 2, 2006 ISD report because the report was sent to an address at which she no longer resided. She further testified that she was aware of a second ISD violation report which she received on or about November 3, 2006, which required her to install smoke detectors and repair or replace certain items on the back porch. She continued her testimony by stating that she addressed the issues contained in this second ISD report by November 14, 2006 but that she cannot afford to pay for the repairs identified in the August 2, 2006 ISD report. The Court credits the plaintiff’s testimony concerning her non-receipt of the August 2 ISD report and installation of the smoke detectors and work done to the back porch. The Court makes no finding as to the plaintiff’s alleged inability to pair for repair of the violations noted in the August 2, 2006 ISD report as her ability to pay for such repairs is not a legal defense to the defendant’s counterclaim for breach of the implied warranty of habitability. Lowery v Robinson, 13 Mass.App.Ct. 982 (1982).

BREACH OF THE IMPLIED WARRANTY OF HABITABILITY

The implied warranty of habitability is the landlord’s promise that the premises will meet certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the tenant is in material violation of the minium standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363

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Mass. 184, 199-200 (1973). A landlord must have actual or

constructive notice of the condition creating the violation. McKenna v. Begin, 3 Mass.App.Ct. 168, 171-172 (1975). Damages are assessed from the date the landlord had notice of the condition of disrepair. Berman & Sons v. Jefferson, 379 Mass. 196, 203 (1979). The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises as warranted and the fair rental value of the premises with the defects. McKenna, 3 Mass.App.Ct. at 172.

The Court finds that due to the conditions at the premises testified to by the defendant, the plaintiff committed a material breach of the implied warranty of habitability during the defendant’s tenancy and occupancy at the premises. The 30 violations listed in the ISD report constitute, some by themselves and some in the aggregate, material breaches of the State Sanitary Code that created hazardous and unsanitary conditions that adversely affected the health and safety of the defendant. It is reasonable to infer from the testimony and other evidence presented at trial by the defendant that the conditions specifically noted in the August 2, 2006 ISD report existed at the commencement of the defendant’s tenancy at the premises. Furthermore, the Court finds through reasonable inference that the plaintiff knew the condition of the premises when she took title to the entire property on June 1, 2006.

The Court determines that the fair rental value of the premises in good repair is $1,000.00 per month for all times relevant to the defendant’s breach of the implied warranty of habitability counterclaim and finds that the fair rental value of the premises was reduced in the aggregate by 40% from August 1, 2006[2] through the date of trial December 11, 2006. Therefore, the Court determines

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[2] The Court will not assess damages against the plaintiff for breach of the implied warranty of habitability for the months of June and July 2006 even though she was the owner of the subject property. It is clear to the Court that the contractual relationship for the payment of rent existed between the defendant and the plaintiff’s brother and/or plaintiff’s mother. However, since the plaintiff is affirmatively seeking damages for unpaid rent from the

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that the defendant is entitled to a rent abatement as follows: $32.88[3] per day x 40% = $13.15 x 133 days = $1,748.95 (for the period of August 1, 2006 through December 11, 2006).

Accordingly, the amount due the defendant on her counterclaim for breach of the implied warranty of habitability is $1,748.95.

G.L. C. 239, s. 8A

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 a defense to possession 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 condition cannot be remedied unless the premises are vacated.

The Court has found that the plaintiff had constructive notice of the adverse conditions at the premises as of the date she took title to the property, which was prior to the date that the defendant was served with the Notice to Terminate Tenancy. Accordingly, pursuant to M.G.L. c. 239, s. 8A, the amount of the abatement ($1,748.95) shall be deducted from the rent arrearage owed ($5,000.00), and the defendant shall have seven (7) days from her receipt of this order to pay the net amount ($3,251.05) if she wishes to maintain possession as set forth below in the Order for Judgement.

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defendant beginning in August 2006, it is appropriate that damages against her for breach of the implied warranty of habitability commence running at that time.

[3] The per diem amount is calculated as follows: $1,000.00 x 12 = $12,000/365 = $32.88.

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REPAIRS TO THE PROPERTY

In addition to awarding the defendant damages for the plaintiff’s breach of the implied warranty of habitability, the Court will also order the plaintiff, at her sole expense, to timely cure all existing violations of the State Sanitary Code at the premises. Furthermore, the work shall be completed in a good and workmanlike manner and with the acquisition of any necessary permits. Cf. Abrams v. Factory Mutual Liability Ins. Co., 298 Mass. 141,143 (1937), abrogated in part on other grounds, Hartford Cas. Ins. Co. v. New Hampshire Ins. Co., 417 Mass. 115 (1994); Mass Highway Dept. v. Walsh Contr. Co. of Illinois, 2003 WL 1689624 at *5 (Mass.Super.Ct. Feb. 10, 2003).

ORDER FOR JUDGMENT

In light of the evidence produced at trial, reasonable inferences drawn therefrom, and applicable law, the Court ORDERS that judgment shall enter as follows:

1. Judgment enters for the defendant for possession of the premises pursuant to the fifth paragraph of M.G.L. c. 239, s. 8A, on condition that within seven (7) days of her receipt of this order, the defendant deposits with the Clerk of this Court the sum of $3,251.05. If the 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 $3,251.05, plus costs, on the next business day following the expiration of the tenth (loth ) day of the date of this order and execution shall issue ten (10) days thereafter.

2. The plaintiff shall cure all violations documented by the City of Boston’s Inspectional Services Department in its August 2, 2006 violation report within

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twenty-one (21) days from the date that judgment enters in this case. All work is to be done with appropriate permits, if necessary, at the plaintiff’s sole expense, and in a good and workmanlike manner. Upon twenty-four (24) hours written notice, the defendant shall permit the plaintiff access to complete the work between the hours of 9:00 A.M. and 5:00 P.M. on any day excluding Saturdays, Sundays, and Massachusetts legal holidays.

cc: Maria Quarato

49 Elwell Street

Malden, MA 02148

Rita Devaney

295 Havre Street

East Boston, MA 02128

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End Of Decision

HOUSING COURT

Yokesta Alexis PLAINTIFF/DEFENDANT-IN-COUNTERCLAIM v. Sean Podolske and Tara Mellman[1] DEFENDANTS/PLAINTIFFS-IN- COUNTERCLAIM v. Pierre F. Lascase[2] DEFENDANT-IN-COUNTERCLAIM

Docket # Docket No. 06-SP-05658

Parties: Yokesta Alexis PLAINTIFF/DEFENDANT-IN-COUNTERCLAIM v. Sean Podolske and Tara Mellman[1] DEFENDANTS/PLAINTIFFS-IN- COUNTERCLAIM v. Pierre F. Lascase[2] DEFENDANT-IN-COUNTERCLAIM

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: April 2, 2007

MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION FOR SANCTIONS

The Plaintiff, Yokesta Alexis, brought this summary process action seeking possession and damages for unpaid rent from the Defendants, Sean Podolske and Tara Mellman. The Defendants filed an Answer with affirmative defenses and counterclaims, alleging retaliation, breach of the implied warranty of habitability, breach of the covenant of quiet enjoyment, failure to provide lead paint notification, and violation of the consumer protection statute, M.G.L. c. 93A. The Plaintiff was initially represented by Kerby Roberson, Jr., Esq. The Defendants were represented by Marjorie Adams, Esq.

The summary process complaint was filed on August 23, 2006 with an original trial date of September 13, 2006. The case was continued several times to allow the parties to complete discovery and, according to the pleadings filed below, for repairs to be scheduled in the Premises. After hearing on October 18, 2006, the Court allowed the Defendants’ Petition for Enforcement of the State

Sanitary Code pursuant to M.G.L. c. 111, s.127C-1 and continued the trial to November 8, 2006.

On November 8, 2006, the Court heard two additional motions filed by the Defendant and assented to by the Plaintiff’s attorney. The first motion was to add Pierre F. Lascase, the owner of the property, as a Defendant-in-Counterclaim. The second motion was the Defendant’s Motion to Order Repair Schedule. Both of these motions were assented to by the Plaintiff’s counsel; Plaintiff’s counsel did not appear at the hearing. The Court further continued the trial to November 13, 2006.

On the continued trial date of November 13, 2006, the Defendants filed a complaint for contempt alleging that the Plaintiff failed to make repairs to the Premises pursuant to the Court’s allowance of the Petition for Enforcement of the State Sanitary Code on October 18, 2006, and further alleging that the Plaintiff failed to supply the Defendants with keys to the Premises pursuant to the Court’s Order of November 8, 2006. After hearing on November 21, 2006, Defendants only appearing, a capias issued for the Plaintiff and the trial was rescheduled for December 5, 2006 at 9:00 a.m.

At 9:55 a.m. on December 5, 2006, the Court received a fax from Attorney Roberson, apparently from a location in the State of Florida, indicating his withdrawal and further stating that the Plaintiff had terminated his services and that he would not appear in Court on that date. No successor counsel appeared on December 5, 2006. After a brief hearing on that date, the Court allowed the Defendants’ Motion for a Real Estate Attachment in the amount of $8,000.00, and further allowed the Defendants’ Motion to Amend the Counterclaim to add a claim for constructive eviction.

Further, at the December 5, 2006, hearing, the Defendants filed a Motion for Sanctions against Mr. Roberson for his failure to appear in this Court on several occasions and for his untimely action in withdrawing from the case. The Court took said Motion under advisement and continued the trial to December 26, 2006, to permit the Plaintiff time to retain new counsel and for Mr. Roberson to appear on his Motion to Withdraw.

Mr. Roberson appeared before this Court on December 26, 2006, and presented an oral opposition to the Defendants’ Motion for Sanctions. The Court then allowed Mr. Roberson’s Motion to Withdraw and accepted the appearance of successor counsel, Paul E. Clancy, Esq., for the Plaintiff and the Defendant in Counterclaim. The trial commenced on December 26, 2006 and concluded on January 18, 2007. The Court now rules on the Defendant’s Motion for Sanctions.

Mass.R.Civ.P. 11(c) provides: “An attorney may, without leave of court, withdraw from a case by filing written notice of withdrawal, together with proof of service on his client and all other parties, provided that (1) such notice is accompanied by the appearance of successor counsel; (2) no motions are then pending before the court; and (3) no trial date has been set. Under all other circumstances, leave of court, on motion and notice must be obtained.”

A Court has the inherent power to impose reasonable costs or sanctions on an attorney whose “…flagrant failure to comply with

an established rule of procedure ‘…delays the adjudication of legitimate claims and defenses, unnecessarily increases clients’ litigation expenses, and squanders limited judicial resources.'” United Mortgage Servicing, L.L.C. v. Long, Boston Housing Court Docket No. 00-CV-01238 (Dec. 18, 2001)(Winik, J.), quoting Beit v. Probate & Family Court Dept., 385 Mass. 854, 859-860 (1982). Further, an attorney may be subject to sanctions if he or she is unable to appear at a scheduled trial and fails to seek a timely continuance. Beit, 385 Mass. at 858. Any imposition of sanctions must be reasonably related to the resources wasted, Avelino-Wright v. Wright, 51 Mass. App. Ct. 1, 5 (2001), and the person upon whom sanctions are imposed must have notice of the sanctions and the opportunity to be heard. Commonwealth v. Rogers, 46 Mass. App. Ct. 109, 113 (1999).

Marjorie Adams (“Adams”), counsel for the Defendants, submitted an affidavit to the Court in conjunction with the Defendants’ Motion for Sanctions. In said affidavit, Adams stated that Mr. Roberson failed to attend various scheduled Court appearances, including hearings held on November 8 and November 21, 2006 and on the trial date originally scheduled for December 5, 2006. She represented that Mr. Roberson informed her by telephone on the evening of November 7, 2006, that he did not intend to appear at the November 8, 2006 hearing. Ms. Adams further indicated that she received no such notice with regard to Attorney Roberson’s failure to appear at the November 21, 2006 contempt hearing.

Ms. Adams further represented that Mr. Roberson telephoned her on November 29, 2006 to confirm the scheduled trial date of December 5, 2006. Ms. Adams indicated that Mr. Roberson left a telephone message for her, in which he stated that he would speak with her on November 30, 2006 regarding the status of the repairs at the Premises, and in which he confirmed that he would appear at the trial on December 5, 2006. Adams stated in her affidavit that Mr. Roberson did not contact her until the morning of December 5, 2006, at which time he informed her that he was withdrawing as counsel for the Defendants.

Mr. Roberson, in opposition to the motion for sanctions, represented to the Court that due to a personal or family matter, he was required to be in Florida on December 5, 2006.

The Court finds that Mr .Roberson failed to follow the procedural requirements of Mass.R.Civ.P. 11(c). Attorney Roberson only notified the Court on December 5, 2006, the date scheduled for trial, of his intent to withdraw. This was done without request of the Court and without identifying successor counsel. Further, the Defendants’ Motion for Real Estate Attachment and the Defendants’ Motion to Amend the Counterclaim to add a count for Constructive Eviction were pending before the Court at the time Attorney Roberson sought to withdraw. Mass.R.Civ.P. 11(c) requires that any attorney seeking to withdraw from an action while motions are pending or after a trial date has been set may only withdraw with leave of the court, after adequate notice has been provided to all parties. The Court finds that Attorney Roberson failed to obtain any such leave from the Court, nor did he adequately notify all parties to this action of his intention to withdraw until the trial

date.

Accordingly, the Court finds that Attorney Roberson’s attempted withdrawal from representation without seeking leave of the Court did not comply with the requirements of Mass.R.Civ.P. 11(c). Further, the Court finds that his failure to appear on December 5, 2006 squandered judicial resources and delayed the litigation of legitimate claims, which unnecessarily increased the costs borne by the Defendants, the Plaintiff, and the Defendant in Counterclaim. The Defendants’ Motion for Sanctions against Attorney Kerby Roberson, Jr., is accordingly ALLOWED, and the Court awards the Defendants reasonable attorney’s fees and costs associated with Attorney Roberson’s failure to appear on December 5, 2006, as set forth below.

In determining an award of attorney’s fees the Court must consider “the nature of the case and the issues presented, the time and labor required, the amount of the damages involved, the result obtained, the experience, reputation and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases.” Linthicum v. Archambault, 379 Mass. 381, 388-9 (1979). See Heller v. Silverbranch Constr. 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 court judge. Linthicum v. Archambault, supra at 388. An evidentiary hearing is not required. Heller v. Silverbranch Constr. Corp., supra at 630-631 (“[because] we conclude that the judge is to rely on his firsthand knowledge of the services performed before him … the judge in the instant case acted properly in awarding the Hellers attorney’s fees, notwithstanding the absence of evidence concerning time spent and the attorney’s usual charge.”). “A fair market rate for time reasonably spent preparing and litigating a case is the basic measure of a reasonable attorney’s fee under State law as well as Federal law.” Fontaine v. Ebtec Corporation, 415 Mass. 309, 326 (1993).

The Defendants were represented by Marjorie A. Adams, an attorney who has been admitted to practice in the Commonwealth of Massachusetts since 1996 and who has diligently and timely appeared before this Court in this matter. The Court finds her hourly rate of $175.00 reasonable based upon rates normally charged by attorneys practicing in the greater Brockton area and for the motion practice involved with defending the Defendants in this action.

Ms. Adams represented to the Court and stated in her affidavit that she and Defendant Tara Mellman prepared for the trial for a period of two hours on December 4, 2006. Ms. Adams further represented that she waited for Attorney Roberson at the Court for three hours on December 5, 2006. Ms. Adams further stated that the trial was unable to go forward on December 5, 2006,

as scheduled due to Attorney Roberson’s failure to appear.

The Court is satisfied that the Defendants’ counsel was prepared for trial on December 5, 2006. The Court, on review of Ms. Adams’ affidavit, allows legal fees in the amount of $525.00, representing three (3) hours of time at the rate of $175.00 an hour. The Court finds that this sum represents Ms. Adams’ preparation time for the trial and for the motions. The finding is reasonable in relation to the resources wasted as a result of Attorney Roberson’s failure to appear on the day of trial.

Ms. Adams also stated, and the Court finds, that on December 5, 2006, the Defendant Tara Mellman expended $25.00 for day care and lost wages in the amount of $65.00. Accordingly, the Court further awards the Defendant Tara Mellman $90.00, representing one day of day care for her minor children at $25.00 per day and one day of lost wages at $65.00 per day.

The Court ALLOWS the Defendants’ Motion for Sanctions against Kerby Roberson, Jr., Esq., for failure to appear at trial and for failure to timely and correctly withdraw from an action in accordance with Mass.R.Civ.P. 11(c). The Court awards Defendants’ counsel, Marjorie A. Adams, $525.00 in legal fees and orders said amount to be paid by Kerby Roberson, Jr. Further, the Court awards Defendant Tara Mellman $90.00, to be paid by Kerby Roberson, Jr., which represents costs incurred as a result of Mr. Roberson’s failure to correctly withdraw and his failure to appear on the day of trial, all resulting in a needless continuance. Mr. Roberson shall pay the amounts owed to Ms. Adams and Ms. Mellman within twenty (20) days of the date of this Memorandum of Decision and Order. He shall also file an affidavit with the Court indicating compliance with the Order. It is expressly ORDERED that Attorney Roberson shall not charge these costs to Yokesta Alexis or Pierre F. Lascase.

SO ORDERED.

cc: Kerby Roberson, Jr., Esq.

Paul E. Clancy, Esq.

Marjorie A. Adams, Esq.

Kerby Roberson, Jr., Esq.

Roberson & Associates, P. C.

1234 Hyde Park Avenue, Suite 203

Hyde Park, MA 02136

Paul E. Clancy, Jr., Esq.

71 Legion Parkway, Suite 11

Brockton, MA 02301

Marjorie A. Adams, Esq.

Adams & Sammon

800 Hingham Street, Suite 200N

Rockland, MA 02370

————————-

[1] The Court notes that the Summary Process Summons and Complaint was filed against “Tara Millmon”; however, the correct spelling of the Defendant’s name is “Tara Mellman.” The Clerk’s Office is directed to correct the docketing to reflect the correct spelling of Defendant Mellman’s name.

[2] The Court, after hearing on November 8, 2006, allowed the Defendants’ Assented-To Motion to add Pierre F. Lascase, the owner of the property, as a Defendant-in-Counterclaim only.

End Of Decision

HOUSING COURT

Yokesta Alexis PLAINTIFF/DEFENDANT-IN-COUNTERCLAIM v. Sean Podolske and Tara Mellman[1]

DEFENDANTS/PLAINTIFFS-IN-COUNTERCLAIM v.

Pierre F. Lascase[2]

DEFENDANT-IN-COUNTERCLAIM

Docket # Docket No. 06-SP-05658

Parties: Yokesta Alexis PLAINTIFF/DEFENDANT-IN-COUNTERCLAIM v. Sean Podolske and Tara Mellman[1]

DEFENDANTS/PLAINTIFFS-IN-COUNTERCLAIM v.

Pierre F. Lascase[2]

DEFENDANT-IN-COUNTERCLAIM

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: April 2, 2007

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

Prior to trial, the parties participated in extensive discovery. The Court, after hearing on October 18, 2006, allowed the Defendants’ Petition for Enforcement of the State Sanitary Code pursuant to M.G.L. c. 111, s.127C-1. The Court, after hearing on November 8, 2006, allowed an Assented-To Motion to add Pierre F. Lascase, the owner of the property, as a Defendant-in-Counterclaim, and an Assented-To Motion to Order Repair Schedule.

On December 5, 2006, after hearing, the Court allowed the Defendants’ Motion for a Real Estate Attachment in the amount of $8,000.00, and further allowed the Defendants’ Motion to Amend the Counterclaim to add a claim for constructive eviction. The Court then continued the trial to December 26, 2006.

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

Pierre F. Lascase (“Lascase”) testified that he is the sole owner of the three-family building (the “Building”) located at 74 Florence Street in Brockton, MA. He stated that he and the Plaintiff, his wife, Yokesta Alexis (“Alexis”), reside in the first floor apartment, while the second and third floors are rented out. Lascase testified that the Defendants have rented the third floor apartment (the “Premises”) since July 2006. He further stated that the rent is $900.00 per month, due on or before the first of the month. Lascase testified that a partial payment of $400.00 had been paid for August 2006 and no rent had been paid for September 2006 through December 2006, for rent due in the amount of $4,100.00.

Lascase identified Plaintiff’s Exhibit 1 as the Fourteen Day Notice to Quit served on the Defendants on August 3, 2006. Plaintiff’s Exhibit 1. The Summons and Complaint was served on the Defendants on August 18, 2006, with an Account Annexed of $500.00, representing partially unpaid rent for the month of August 2006. He further confirmed that his wife, the Plaintiff, signed both the Notice to Quit and the Summons and Complaint, and that an attorney had not signed either document. He was credible in his testimony.

Following the close of the Plaintiff’s case in chief, the Defendants orally moved to dismiss the summary process action pursuant to LAS Collection Management v. Pagan, 447 Mass. 847, 851 (2006) (a property agent who is not an attorney may not represent a property owner in a lawsuit in the Housing Court). This Court allowed the Defendants’ Oral Motion to Dismiss, without prejudice, finding that the Plaintiff Alexis did not own the Premises and was not an attorney, and therefore could not initiate the present action on behalf of the property owner, Pierre F. Lascase[4]. Accordingly, possession of the Premises remains with the

Defendants.

The Defendants’ Counterclaims

The Defendants have filed counterclaims alleging retaliation, breach of the implied warranty of habitability, breach of the covenant of quiet enjoyment, failure to provide lead paint notification, constructive eviction and violation of the consumer protection statute, M.G.L. c. 93A.[5] M.G.L. c. 239, s.8A p.1 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.”

The Defendants have alleged in their counterclaims that the Premises had conditions that would warrant a finding that Alexis and Lascase (hereinafter the “Defendants in Counterclaim”) breached the warranty of habitability. The warranty of habitability is the landlord’s promise that the premises will meet certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the tenant is in material violation of the minimum standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). A landlord must have actual or constructive notice of the condition creating the violation. McKenna v. Begin, 3 Mass.App.Ct. 168 (1975). Damages are assessed from the date the landlord had notice of the condition of disrepair. Berman & Sons v. Jefferson, 379 Mass. 196 (1979).

Fred LaFrance (“LaFrance”), a inspector for the Brockton Board of Health (“Board of Health”), testified that he inspected the Premises on September 13, 2006. He identified an inspection report dated September 14, 2006 and sent to the Plaintiff Alexis, in which he noted several adverse conditions at the Premises: a stove and oven not in working order; water stains and a leak in the rear bedroom ceiling; missing ceiling light fixture covers; mold and mildew in the bathroom; debris throughout the yard; evidence of rodent infestation; and porches and balusters not in compliance with the State Building Code. Defendant’s Exhibit B. LaFrance testified that he granted the Defendants in Counterclaim until September 29, 2006, to repair the Premises, and later extended the time for repair until October 13, 2006. Defendant’s Exhibit B. LaFrance stated that he reinspected on November 6, 2006, and that none of the conditions as noted in the Board of Health inspection report had been repaired, and that there was no Certificate of Fitness for the Premises on file with the Board of Health. He further stated that he received a phone call from the Plaintiff that the Defendants refused access to her for the purpose of completing the repairs mandated by the Board of Health. He was credible in his testimony.

Defendant Tara Mellman testified that, at the commencement of

the tenancy, neither the stove burners nor the oven worked. She stated that the stove had not been fixed as of the second day of trial on January 18, 2007, and that the Defendants in Counterclaim were aware of the problem.

Mellman stated that she contacted the Board of Health on or about September 11, 2006, to report adverse conditions at the Premises. She further testified that she found mold and mushrooms growing in the bathroom, and mice throughout the Premises. Mellman stated that she had not received keys to the Premises from either Alexis or Lascase, and had to enter the Premises through a window. She confirmed water stains and a leak in her children’s bedroom, and glass and other debris throughout the yard. Mellman further stated that there were electrical problems with the lights in the kitchen and hallway of the Premises. Mellman testified that she never received a lead paint deleading certificate and that her children are under the age of six.

Mellman identified photographs of the Premises taken on November 8, 2006. Defendants’ Exhibits D1-D22. The photographs depicted several adverse conditions at the Premises, including: unlocked mailboxes, Defendants’ Exhibit D3; no doorbells, Defendants’ Exhibit D3; a loose antenna on the exterior of the Premises, Defendants’ Exhibit D5; unattached kitchen cabinets, Defendants’ Exhibit D6; missing hallway railings, Defendants’ Exhibits D1-2 and D7; cracked, sagging, and leaking ceiling, Defendants’ Exhibits D8, D12-14; evidence of mice under the stove, Defendants’ Exhibits D11, D20; missing balusters on the porch, Defendants’ Exhibit D10; debris in the rear yard, Defendants’ Exhibit D15; trash under the first floor porch, Defendants’ Exhibit D17; chipping paint on the exterior door and porch, Defendants’ Exhibits D18-19; and missing ceiling light fixture covers, Defendants’ Exhibits D21-22.

Mellman testified that she attempted to have the conditions at the Premises repaired. She stated that she appeared in this Court on October 18, 2006, at which time she requested an Order of Enforcement of the State Sanitary Code. This Court (Edwards, J.) allowed the Defendants’ motion and ordered the Plaintiff Yokesta Alexis to make the repairs as noted in the Board of Health inspection report within ten (10) days of the Order. Mellman acknowledged receiving requests by the Plaintiff to access the Premises on October 22, 2006, October 28, 2006, and November 4, 2006, for purposes of making repairs. Plaintiff’s Exhibits 4A-C. She was credible in her testimony.

Mellman stated that she did not permit the Plaintiff to access the Premises on various occasions due to a funeral in the family. She further stated that her co-Defendant was at the Premises while she was at work on the days the Plaintiff requested access to the Premises. She was not credible on this last issue.

Mellman stated that she last slept at the Premises on November 20, 2006, but that she had returned to the Premises twice in early January 2007 to inspect her personal property, including clothing and furniture. She stated that there is food in the refrigerator. She was credible in this testimony.

She testified that she is currently living with her mother and pays her mother $100.00 per week. Mellman did not present any other evidence or testimony that she was living with her mother, and she offered no documentation that she was paying her mother $100.00 per week. She was not credible in this testimony.

Plaintiff Yokesta Alexis testified that she attempted to complete the repairs as noted by the Board of Health in the September 14, 2006 inspection report, but that the Defendants had refused access to the Premises. She confirmed sending three notices requesting access to the Premises, Plaintiff’s Exhibits 4A-C, and further stated that she did not attempt to access the Premises during the funeral, per the Defendants’ request. Alexis testified that the Defendants continued to refuse access to the Premises throughout November 2006. She was credible in this testimony.

The Plaintiff testified that the stove and some additional items had been repaired in November 2006, but did not testify as to specific items that had been repaired or specific dates of repair. She also stated that she had not received anything from the Board of Health indicating the repairs had been completed. Alexis testified that the porches had not been repaired, the doorbells had not been replaced, and no locks had been provided for the mailboxes. She was credible in her testimony.

The Defendants’ Retaliation Counterclaim

The Defendants allege that the Defendants in Counterclaim retaliated against them by initiating eviction proceedings after the Defendants complained about the conditions at the Premises. M.G.L. c. 186, s.18 sets forth in pertinent part a right of action for a tenant as to retaliation by a landlord: “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.

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.” M.G.L. c. 186, s.18.

The Court finds that, on August 3, 2006, the Plaintiff served the Defendants with a legally sufficient Fourteen Day Notice To Quit for nonpayment of rent. Plaintiff’s Exhibit 1. The Court finds that, because the Notice to Quit was served for nonpayment of rent, the Defendants are not entitled to the statutory presumption of retaliation. The Court further finds that the Plaintiff’s sole reason for serving the Fourteen Day Notice To Quit was to terminate the tenancy for nonpayment, and that the Plaintiff would have terminated the tenancy regardless of whether the Defendants complained about the conditions at the Premises. Further, there was no evidence or testimony that the Defendants notified the Plaintiff of the conditions at the Premises prior to service of the Notice to Quit on August 3, 2006 or prior to receipt of the September 14, 2006, Board of Health inspection report. Accordingly, the Court finds for the Defendants in Counterclaim as to the Defendants’ M.G.L. c. 186, s.18 claim.

Defendants’ Breach of the Implied Warranty of Habitability Counterclaim

The Defendants claim that conditions at the Premises breached the implied warranty of habitability. The implied warranty of habitability is the landlord’s promise that the premises will meet certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the tenant is in material violation of the minimum standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). A landlord must have actual or constructive notice of the condition creating the violation. McKenna v. Begin, 3 Mass.App.Ct. 168 (1975). Damages are assessed from the date the landlord had notice of the condition of disrepair. Berman & Sons v. Jefferson, 379 Mass. 196 (1979). The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises as warranted and the fair rental value of the premises with the defects. McKenna v. Begin, supra at 172.

The Court finds the Defendants in Counterclaim breached the implied warranty of habitability by permitting adverse conditions to persist at the Premises. The Court finds that the stove did not work from the inception of the tenancy, and further finds that the Defendants in Counterclaim knew of the condition from the inception of the tenancy. Accordingly, the Court finds that the Defendants are entitled to a rent abatement in the amount of $390.72, or thirty per cent (30%), for the period of August 1, 2006, the inception of the tenancy, through September 13, 2006, calculated as follows: $29.59/day[6] x 30% = $8.88/day x 44 days[7] = $390.72.

The Court further finds that the Defendants in Counterclaim

were notified of the remaining conditions at the Premises, including the leaking ceilings, the missing light fixtures, the mold and mildew in the bathroom, the debris in the yard, the problems with the porches, and the evidence of rodent infestation, on September 14, 2006, the date of the Board of Health inspection report. Further, the Court finds that these conditions remained outstanding from September 14, 2006, through the trial date of January 18, 2007. Accordingly, the Court finds the Defendants are entitled to a rent abatement in the amount of $2,630.17, or seventy per cent (70%), for the period of September 14, 2006, through January 18, 2007, calculated as follows: $29.59/day x 70% = $20.71 x 127 days[8] = $2,630.17. The total rent abatement due the Defendants is $3,020.89. Accordingly, the Court finds for the Defendants in the amount of $3,020.89.

Defendants’ Quiet Enjoyment Counterclaim

The Defendants allege that the Defendants in Counterclaim breached the covenant of quiet enjoyment pursuant to M.G.L. c. 186, s.14 by failing to repair adverse conditions at the Premises. M.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…” A landlord violates M.G.L. c. 186, s.14 where he had notice, or reason to know of the serious condition in the tenant’s apartment, and failed to take appropriate corrective measures. Al Ziab v. Mourgis, 424 Mass. 847, 850-851 (1997); Cruz Management Co., Inc. v. Thomas, 417 Mass. 782 (1994).

In calculating the damages due the Defendants for the breach of the covenant of quiet enjoyment, the Court must under M.G.L. c. 186, s.14 compare the Defendants’ actual damages versus the statutory damages permitted under the statute.[9] The Defendants presented no evidence of actual damages. Therefore, the Defendants are entitled to statutory damages of $2,700.00 computed by trebling the monthly rent of $900.00.

Darmetko v. Boston Housing Authority, 378 Mass. 758, 762 (1979); Leardi v. Brown, 394 Mass. 151, 157 (1985). Lascase’s and Alexis’s violations of M.G.L. c. 186, s.14 and for the breach of the warranty of habitability essentially arise from the same facts and involve the same damages. The Court will award damages to the Defendants under the breach of warranty of habitability claims as those damages provide the greater recovery to the Defendants.

Lascase and Alexis shall complete all repairs in the Premises as outlined in the Board of Health inspection report, Defendants’ Exhibit B, within twenty-one (21) days of the date judgment enters. Further, Lascase and Alexis shall obtain a Certificate of Fitness from the Board of Health and provide the Defendants with a key to the Premises. All work is to be done with appropriate permits, if necessary, at Lascase’s and Alexis’s sole expense and shall be completed in a good and workmanlike manner as set forth herein. Abrams v. Factory Mutual Liability Ins. Co., 298 Mass. 141, 143 (1937); Mass. Highway Dept. v. Walsh Construction Co., Mass. Super. Ct. No. 015746-BLS (2003). The Defendants shall permit Lascase and Alexis and/or their agents access to the Premises to complete the repairs during regular business hours (9:00 a.m. to 6:00 p.m.) Monday through Saturday with twenty-four hours written notice.

Failure to Disclose Information Regarding Lead Paint Hazard

The Defendants claim that Lascase and Alexis failed to provide a lead paint certificate or information regarding lead paint hazards upon the commencement of the tenancy, in violation of M.G.L. c. 111, s.197A. M.G.L. c. 111, s.197A(d)(1) states, in pertinent part: “Tenants of premises and those prospective tenants who are about to enter into an agreement to rent premises shall be notified about the hazards of dangerous levels of lead as follows:…a standard form to be distributed by owners to tenants or prospective tenants…which shall include…the address and telephone number of the state childhood lead poisoning prevention program. In addition, the owner shall disclose any information actually known by the owner concerning the location of paint, plaster, or other accessible structural materials containing dangerous levels of lead, including such intact paint, plaster, or other accessible structural materials containing dangerous levels of lead which have been covered or encapsulated.” M.G.L. c. 111, s.197A(d)(2) provides, in pertinent part: “…Prior to entering into a tenancy agreement, the owner of premises or such other person to whom rent is to be regularly paid, shall provide a prospective tenant who is about to enter such an agreement to rent premises with (i) a copy of the materials and standard form completed pursuant to paragraph (1); (ii) a copy of the most recent lead paint inspection report, letter of interim control, letter of compliance or abatement plan applicable to the swelling unit and to the common areas or exterior surfaces of the residential premises; and (iii) two copies of a statement certifying that the prospective tenant received all of the above materials, one copy of which is to be retained by the tenant and one by the owner.” M.G.L. c. 111, s.197A(e) provides: “Any owner who fails to comply with the provisions of this section shall be liable for all damages caused

by the failure to comply and, in addition, shall be subject to assessment of a penalty not to exceed one thousand dollars.”

The Court finds that the Defendants in Counterclaim failed to provide the lead paint reports and certifications as required by M.G.L. c. 111, s.197A. The Defendants failed to present any evidence or testimony as to actual damages suffered. Accordingly, the Court awards no actual damages, but does award the Defendants $250.00 in statutory damages pursuant to M.G.L. c. 111, s.197A(e). See Elliot v. Schofield, Northeast Housing Court Docket No. 99-SP-02498 (Feb. 22, 2001)(Kerman, J.). Further, Lascase and Alexis are ordered to provide a lead paint certificate and such other documents as required by M.G.L. c. 111, s.197A to the Defendants within twenty-one (21) days of the date judgment enters.

Constructive Eviction

A constructive eviction is “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.” Westland Housing Corp. v. Scott, 312 Mass. 375, 381 (1942), quoting Tracy v. Long, 295 Mass. 201, 203 (1936). Actual intent is not required; rather, it is assumed that the landlord intends the natural and probable consequences of his or her actions. See id.

The Defendants allege that the conditions at the Premises caused them to be constructively evicted from the Premises. Defendant Mellman testified that she has not slept at the Premises since November 20, 2006, but was unable to produce any documentation or evidence in support of her contention. Further, Mellman acknowledged that the Defendants left food and personal property at the Premises. There was no testimony from Defendant Podolske as to whether he had vacated the Premises.

The Court finds that the Defendants failed to show that they were constructively evicted from the Premises. The Court finds that the Defendants in Counterclaim attempted to make repairs to the Premises upon receiving notice of said conditions, but that the Defendants prevented the completion of the repairs by refusing the Defendants in Counterclaim access to the Premises. Further, the Court finds that the Defendants still occupy the Premises as of the date of trial. Accordingly, the Court finds for the Defendants in Counterclaim on the Defendants’ claim for constructive eviction.

Defendants’ M.G.L. c. 93A Counterclaim

The Defendants claim Lascase and Alexis engaged in unfair and deceptive practices in violation of M.G.L. c. 93A by failing to comply with the State Sanitary Code and M.G.L. c. 111, s.197A. The Defendants failed to present any testimony or evidence that the Defendants in Counterclaim are in the trade or business of renting residential housing and therefore subject to M.G.L. c. 93A. See Young v. Patukonis, 24 Mass.App.Ct. 907, 910 (1987). Accordingly, the Court finds for the Defendants in Counterclaim on the Defendants’ claims under M.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. The Plaintiff’s summary process complaint is dismissed without prejudice pursuant to LAS Collection Management v. Pagan, 447 Mass. 847 (2006).

2. Judgment enter for the Defendants in Counterclaim on the Defendants’ counterclaim for retaliation pursuant to M.G.L. c. 186, s.18.

3. Judgment enter for the Defendants on their counterclaim for breach of the implied

warranty of habitability, in the amount of $3,020.89.

4. Judgment enter for the Defendants on their counterclaim for breach of the covenant of quiet enjoyment pursuant to M.G.L. c. 186, s.14; however, no duplicative damages are awarded.

5. Lascase and Alexis shall complete all repairs in the Premises as outlined in the Board of Health inspection report, Defendants’ Exhibit B, within twenty-one (21) days of the date judgment enters. Further, Lascase and Alexis shall obtain a Certificate of Fitness from the Board of Health, and provide the Defendants with a key to the Premises. All work is to be done with appropriate permits, if necessary, at the Defendants’ in Counterclaim sole expense and shall be completed in a good and workmanlike manner as set forth herein. Abrams v. Factory Mutual Liability Ins. Co., 298 Mass. 141, 143 (1937); Mass. Highway Dept. v. Walsh Construction Co., Mass. Super. Ct. No. 015746-BLS (2003). The Defendants shall permit the Defendants in Counterclaim and/or their agents access to the Premises to complete the repairs during regular business hours (9:00 a.m. to 6:00 p.m.) Monday through Saturday upon twenty-four hours written notice.

6. Judgment enter for the Defendants on their counterclaim for nondisclosure of lead paint status pursuant to M.G.L. c. 111, s.197A, in the amount of $250.00. The Defendants in Counterclaim shall provide the Defendants with a lead paint certificate and such other documents as required by M.G.L. c. 111, s.197A within twenty-one (21) days of the date judgment enters.

7. Judgment enter for the Defendants in Counterclaim on the Defendants’ constructive eviction counterclaim.

8. Judgment enter for the Defendants in Counterclaim on the Defendants’ M.G.L. c. 93A counterclaim.

9. The foregoing Orders for Judgment paragraphs 1 through 8 result in a judgment for the Defendants in the amount of $3,270.89.

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

cc: Paul E. Clancy, Jr., Esq.

Marjorie A. Adams, Esq.

Yokesta Alexis

Plaintiff/Defendant-in-Counterclaim

vs.

Sean Podolske and Tara Mellman

Defendants/Plaintiffs-in-Counterclaim

vs.

Pierre F. Lascase

Defendant-in-Counterclaim

JUDGMENT

This action came on for trial/hearing before the Court, Edwards, 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:

The Plaintiff’s summary process complaint is herein dismissed pursuant to applicable Massachusetts case law, without prejudice.

Judgment for the Plaintiff (ie: Defendant-in-Counterclaim) as to Defendants’ counterclaim issues of retaliation, constructive eviction, and M.G.L. Chapter 93A, as set forth in paragraphs 2, 7 and 8 of the Court’s Order for Judgment.

Judgment for the Defendants for combined, non-duplicative counterclaim damages in the sum of $3,270.89, as provided in paragraphs 3, 4 and 6 of the Court’s Order for Judgment.

The Plaintiff, with Defendants’ cooperation as applicable, shall also timely comply with all repair and related responsibilities set forth in paragraphs 5 and 6 of the Court’s Order for Judgment.

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

/s/MARK R. JEFFRIES

CLERK MAGISTRATE

Paul E. Clancy, Jr., Esq.

71 Legion Parkway, Suite 11

Brockton, MA 02301

Marjorie A. Adams, Esq.

Adams & Sammon

800 Hingham Street, Suite 200N

Rockland, MA 02370

————————-

[1] The Court notes that the Summary Process Summons and

Complaint was filed against “Tara Millmon”; however, the correct spelling of the Defendant’s name is “Tara Mellman”. The Clerk’s Office is directed to correct the docketing to reflect the correct spelling of Defendant Mellman’s name.

[2] The Court, after hearing on November 8, 2006, allowed the Defendants’ Assented-To Motion to add Pierre F. Lascase, the owner of the property, as a Defendant-in-Counterclaim only.

[3] Plaintiff’s original counsel, Attorney Kerby Roberson, filed a motion to withdraw on the original trial date of December 5, 2006 without the appearance of substitute counsel. The Court allowed the motion on December 26, 2006.

[4] The Court notes that the Plaintiff, despite the opportunity during the pre-trial proceedings, did not seek to amend the summons and complaint to add Pierre F. Lascase as a co-Plaintiff in the summary process action.

[5] In LAS Collection Management v. Pagan, following dismissal of the summary process action for the Plaintiff’s unauthorized practice of law, the Supreme Judicial Court of Massachusetts remanded the case for consideration of the Defendant’s counterclaims. 447 Mass. 847, 851 (2006). Accordingly, this Court will hear the Defendants’ counterclaims in this action.

[6] The per diem rental rate is calculated as follows: $900.00/month x 12 = $10,800.00 ? 365 = $29.59/day.

[7] The period from August 1, 2006, through September 13, 2006, consists of 44 days.

[8] The period from September 14, 2006, through January 18, 2007, consists of 127 days.

[9] M.G.L. c. 186, s.14 in relevant part: “Any person who commits any act in violation of this section shall also 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.”

End Of Decision

HOUSING COURT

Barbara Barber PLAINTIFF v. Charles White DEFENDANT

Docket # Docket No. 06-CV-01084

Parties: Barbara Barber PLAINTIFF v. Charles White DEFENDANT

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: April 3, 2007

MEMORANDUM OF DECISION ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

Currently before the Court is the Plaintiff’s Motion for Summary Judgment. The Plaintiff Barbara Barber (“Barber”) filed this civil action alleging the Defendant Charles White (“White”) violated portions of M.G.L. c. 186, s.15B by failing to return her security deposit. The Plaintiff further alleges that the Defendant’s failure to return her security deposit violates provisions of M.G.L. c. 93A and the Attorney General’s Regulations promulgated thereunder. The Plaintiff was represented by counsel; the Defendant appeared pro se at the hearing on this motion.

The Defendant owns property located at 34 Belair Street (the “Building”) in Brockton, MA, and resides in Apartment #2 in the Building. White leased Apartment #1 (the “Premises”) in the Building to the Plaintiff for a period of one year, commencing December 16, 2005, and terminating December 16, 2006, pursuant to a Section 8 Housing Choice Voucher Program Lease (the “Lease”). Plaintiff’s Exhibits 1,4.[1] Pursuant to both versions of the Lease, the monthly contract rent was $1,000.00, due on or before the sixteenth of each month. The Plaintiff’s portion of the monthly rent was $206.00. Plaintiff’s Exhibits 1,4.

The Plaintiff, through a Motion for Summary Judgment, now seeks a finding by the Court in her favor on both counts of her complaint. To prevail on a Motion for Summary Judgment, the moving party must demonstrate with admissible evidence, based upon the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, that there are no genuine issues as to any material facts and that the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c). Community National Bank v. Dawes, 369 Mass. 550, 553-556 (1976). Once the moving party meets its initial burden of proof, the burden shifts to the non-moving party “to show with admissible evidence the existence of a dispute as to material facts.” Godbout v. Cousens, 396 Mass. 254, 261 (1985). “A party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass.R.Civ.P. 56(c), unmet by countervailing

materials, that the party opposing the motion has no reasonable expectation of providing an essential element of that party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). See also Flesner v. Technical Communications Corp., 410 Mass. 805, 808-09 (1991).

Breach of M.G.L. c. 186, s.15B

The Plaintiff alleges that the Defendant collected a security deposit from her in the amount of $470.00. The Plaintiff further alleges that the Defendant failed to provide her with a statement of conditions for the Premises and failed to hold the security deposit in an interest-bearing escrow account.

M.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 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.”

M.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 umber of said deposit. Failure to comply with this paragraph shall entitle the tenant to immediate return of the security deposit.”

M.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 damage to the premises if he: (a) fails to deposit such funds in an account as required by subsection (3)…”

The Plaintiff testified that she paid the Defendant a security deposit of $470.00 on December 12, 2005. The Plaintiff submitted into evidence a receipt in the amount of $470.00 dated December 12, 2005, and signed by the Defendant. On the back of the receipt is the following statement: “I Charles White hold 470. for Barbara Barber for security deposit at 34 Belair St. If tenant does not rent; security dpzt will be refunded in whole. /s/ Charles White”. Plaintiff’s Exhibit 5. The Plaintiff further stated that in the copy of the Lease provided by the Defendant during discovery, the section reflecting the payment of the security deposit in the amount of $470.00 had been whited out on both copies[2]. Plaintiff’s Exhibit 4. The Plaintiff testified that she requested the return of her security deposit in a letter dated March 31, 2006, and sent to the Defendant by regular mail. She was credible in her testimony.

The Defendant in his testimony acknowledged his signature on

the front of the receipt. Plaintiff’s Exhibit 5. He was credible in this testimony. The Defendant denied that the receipt was for a security deposit. He further denied any knowledge as to the writing and his alleged signature on the back of the receipt. Plaintiff’s Exhibit 5. He was not credible in his testimony.

The Court expressly notes and finds that in the original Lease marked as Plaintiff’s Exhibit 4, a review of the document indicates that the clause referencing the amount of the security deposit has been clearly covered with the substance known as “White Out”, as evidenced by the opaque white material obscuring the handwritten portion of the Lease referencing the amount of the security deposit. See Dellorusso v. Monteiro, 47 Mass. App. Ct. 475, 476 (1999) (recognizing the use of white-out to obscure portions of a document). As represented by the Plaintiff, and confirmed by the Defendant, this original document was supplied to the Plaintiff by the Defendant as part of the discovery process. The Court determines, from the review of Plaintiff’s Exhibits 1 and 4, coupled with the Defendant’s lack of credibility during portions of his testimony, that the Defendant, in fact, accepted a security deposit of $470.00 from the Plaintiff on December 12, 2005. Further, the Court did not credit the Defendant’s testimony that an entirely different document marked as Plaintiff’s Exhibit 2 was the lease agreement between the parties.

The Defendant failed to present testimony or evidence that he provided the Plaintiff with a statement of conditions for the Premises, nor did the Defendant present testimony or evidence that he deposited the Plaintiff’s security deposit in an interest-bearing escrow account.

The Court finds that the Plaintiff has satisfied her burden of showing that the Defendant violated portions of M.G.L. c 186, s.15B. Specifically, the Plaintiff produced evidence and testimony to show that the Defendant collected a security deposit from the Plaintiff, failed to provide the Plaintiff with a statement of conditions of the Premises, and failed to hold the Plaintiff’s security deposit in an interest-bearing escrow account.

The Court further finds that the Defendant has failed to meet his burden of showing that a genuine issue of material fact exists as to his alleged breach of M.G.L. c. 186, s.15B. The Court did not find the Defendant’s testimony or evidence credible that the $470.00 amount given to him by the Plaintiff on December 12, 2005, was something other than a security deposit. Accordingly, the Court finds that the Defendant collected a security deposit in the amount of $470.00 from the Plaintiff on December 12, 2005, as evidenced by the Lease, Plaintiff’s Exhibits 1 and 4, (notwithstanding the “whited-out” portions of the document) and the receipt dated December 12, 2005 and signed by the Defendant, Plaintiff’s Exhibit 5. Further, Court finds that the Defendant failed to provide the Plaintiff with a statement of conditions within ten days of collecting the security deposit, as required by M.G.L. c. 186, s.15B(2)(c). The Court further finds that the Defendant failed to deposit the Plaintiff’s security deposit in an interest-bearing escrow account, and failed to notify the Plaintiff of the account

in which the security deposit was held, as required by M.G.L. c. 186, s.15B(3)(a).

M.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.” Pursuant to M.G.L. c. 186, s.15B(7), the Court finds that the Plaintiff is entitled to treble damages due to the Defendant’s violation of M.G.L. c. 186, s.15B(6)(a), along with attorney’s fees and costs. The Court finds the Plaintiff is entitled to damages due to the failure to hold the security deposit in a separate escrow account and to return the security deposit on demand, calculated as follows: $470.00, trebled to $1,410.00. The Plaintiff is also entitled to $28.38 in damages for interest owed on the security deposit, calculated as follows: $.06/day[3] x 478 days[4] = $28.68.

The Court finds that the Plaintiff is further entitled to reasonable attorney’s fees and costs, pursuant to M.G.L. c. 186, s.15B(7). Within ten (10) days of the date that judgment enters, counsel for the Plaintiff shall file with this Court a Motion for Counsel Fees, Costs and Expenses in accordance with the procedure proscribed in Yorke Mgmt v. Castro, 406 Mass. 17, 20 (1989) and shall mark same for hearing. After hearing, the Court shall award reasonable attorney’s fees and costs nunc pro tunc to the date of this Decision.

Violation of M.G.L. c. 93A

The Plaintiff further alleges that the Defendant’s failure to hold her security deposit in accordance with M.G.L. c. 186, s.15B(3)(a) constitutes a violation of M.G.L. c. 93A and the Attorney General’s regulations promulgated thereunder. M.G.L. c. 93A(2)(a) states that “Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” Subsection (2)(c) states that “The attorney general may make rules and regulations interpreting the provisions of subsection 2(a) of this chapter…”

Pursuant to the Attorney General’s Consumer Protection Regulations codified at 940 CMR 3.17 (4)(d-e): “It shall be an unfair or deceptive practice for an owner to:…(d) fail to hold a security deposit in a separate interest-bearing account or provide notice to the tenant of the bank and account number, in accordance with M.G.L. c. 186, s.15B; (e) fail to submit to the tenant upon receiving a security deposit or within ten days after commencement of the tenancy, whichever is later, a separate written statement of the present condition of the premises in accordance with M.G.L. c. 186, s.15B…”

The Plaintiff failed to present any testimony or evidence that the Defendant is in the trade or business of renting residential housing and therefore subject to M.G.L. c. 93A. See Young v. Patukonis, 24 Mass.App.Ct. 907, 910 (1987). Accordingly, the Court DENIES the Plaintiff’s summary judgment motion as to the Plaintiff’s M.G.L. c. 93A claim.

The Court ALLOWS the Plaintiff’s Motion for Summary Judgment as to her claims pursuant to M.G.L. c. 186, s.15B. The Court accordingly awards damages to the Plaintiff for the Defendant’s failure to hold the Plaintiff’s security deposit in an interest-bearing escrow account in the amount of $1,410.00, computed by trebling the security deposit of $470.00, plus reasonable attorney’s fees and costs. Within ten (10) days of the date that judgment enters, counsel for the Plaintiff shall file with this Court a Motion for Counsel Fees, Costs and Expenses in accordance with the procedure proscribed in Yorke Mgmt v. Castro, 406 Mass. 17, 20 (1989) and shall mark same for hearing.

The Court further awards the Plaintiff interest on the security deposit in the amount of $28.68, representing all accrued interest for the period during which the Defendant held the Plaintiff’s security deposit.

The Court DENIES the Plaintiff’s summary judgment motion as to her claim pursuant to M.G.L. c. 93A.[5]

Execution shall issue thirty (30) days from the date that judgment enters.

cc: Denise Hincken, Esq.

Charles White

BRISTOL, SS: HOUSING COURT DEPARTMENT

PLYMOUTH, SS SOUTHEASTERN DIVISION

Docket No. 06-CV-01084

Barbara Barber

Plaintiff

vs.

Charles White

Defendant

JUDGMENT

This action came on for trial/hearing before the Court, Edwards, J. presiding, and the issues having been duly tried/heard and findings having been duly rendered, it is ORDERED and ADJUDGED:

Plaintiff’s Motion for Summary Judgment is herein ALLOWED as to that portion of same alleging violations of M.G.L. Chapter 186, s.15B, in the sum of $1,410.00 (ie: $470.00 trebled), interest of $28.68, plus costs and reasonable attorney’s fees.

Plaintiff shall timely file a Motion for Counsel Fees, Costs and Expenses and mark same for hearing as further provided herein.

Plaintiff’s Motion for Summary Judgment is DENIED however, as

to that portion of same alleging violations of M.G.L. Chapter 93A.

Dated at Fall River, Massachusetts this 3rd day of April 2007.

/s/MARK R. JEFFRIES

CLERK MAGISTRATE

Denise Hincken, Esq.

South Coastal Counties Legal Services, Inc.

Barrister’s Hall

231 Main Street, Suite 201

Brockton, MA 02301-4342

Charles White

34 Belair Street

Brockton, MA 02301

————————-

[1] At trial, the Plaintiff submitted both a copy of the signed Lease produced by the Defendant during discovery, which was marked as Plaintiff’s Exhibit 1, and the signed original Lease which the Defendant also produced to the Plaintiff during discovery, which was marked Plaintiff’s Exhibit 4.

[2] Both versions of the Lease state, in pertinent part: “Security Deposit: The tenant has deposited $ with the owner as a security deposit. The amount of the security deposit does not exceed the amounts of security deposits charged by the owner to unassisted tenants or the private market practice for the area where the unit is leased.” Space is blank in both Plaintiff’s Exhibit 1 and 4.

[3] $470.00 (security deposit) x 5% = $23.50 ? 365 = $.06/day.

[4] The period between December 12, 2005, the date the Defendant collected a security deposit from the Plaintiff, and April 3, 2007, the date of judgment, consists of 478 days.

[5] The parties may be heard by the Court on the remaining M.G.L. c. 93A claim in conjunction with the hearing on the award of the Plaintiff’s attorney’s fees. If so, they shall so advise the Clerk’s Office.

End Of Decision

HOUSING COURT

The Boulders v. Chris and Holly Mellman

SOUTHEASTERN DIVISION

Docket # 06-SP-05615

Parties: The Boulders v. Chris and Holly Mellman

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: May 22, 2007

MEMORANDUM OF DECISION ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

AS TO LIABILITY ON DEFENDANTS’ M.G.L. c. 93A COUNTERCLAIM

The Defendants have filed a Motion for Summary Judgment as to the Plaintiff’s Liability under M.G.L. c. 93A. The Plaintiff, The Boulders (“Boulders”), filed this summary process action seeking possession and unpaid rent from the Defendants, Chris and Holly Mellman. The Defendants filed an Answer with Counterclaims alleging the Plaintiff violated the implied warranty of habitability, the covenant of quiet enjoyment pursuant to M.G.L. c. 186, s.14, and the consumer protection statute, M.G.L. c. 93A. The Defendants further alleged that the Plaintiff breached the Lease between the parties[1], and retaliated against the Defendants in violation of M.G.L. c. 186, s.18. Both parties are represented by counsel.

The Plaintiff owns property located at Raintree Circle in Brockton, MA (the “Complex”). The Defendants formerly resided in 1E Raintree Circle (the “former Premises”), and currently reside in 4A Raintree Circle (the “current Premises”) in the Complex pursuant to a lease agreement. The monthly rent for the current Premises is $1,545.00.

The Plaintiff served the Defendants with a 14-Day Notice to Quit for Nonpayment of Rent on July 17, 2006, alleging unpaid rent in the amount of $1,545.00 for the month of July 2006. The Plaintiff served the Defendants with a Summons and Complaint on August 4, 2006 with an Account Annexed of $3,090.00 representing unpaid rent for the months of July and August 2006 at the rate of $1,545.00 per month. The Plaintiff, upon filing the Summons and Complaint with this Court, requested a jury trial.

The Defendants filed an Answer with Counterclaims on August 18, 2006. The Defendants allege in their counterclaims that they notified the Plaintiff of severe mold at 1E Raintree Circle, but that the Plaintiff failed to remediate the mold in a timely manner. They further allege that, after the Plaintiff relocated them to a new and their now current residence at 4A Raintree Circle, they discovered mold at that location. The Defendants assert that they again notified the Plaintiff of the mold problem at the current Premises, but that the Plaintiff again failed to timely remediate the mold. The Defendants allege that the presence of mold at both residences and the Plaintiff’s failure to properly and promptly remediate the mold caused personal injury plus damage to the Defendants’ personal property.

The parties have participated in extensive discovery. The trial is now scheduled for June 11 through June 13, 2007.

The Defendants have filed this Motion for Summary Judgment as to the Plaintiff’s Liability on the Defendants’ M.G.L. c. 93A Counterclaim. To prevail on a Motion for Summary Judgment, the moving party must demonstrate with admissible evidence, based upon the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, that there are no genuine issues as to any material facts and that the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c). Community National Bank v. Dawes, 369 Mass. 550, 553-556 (1976). Once the moving party meets

its initial burden of proof, the burden shifts to the non-moving party “to show with admissible evidence the existence of a dispute as to material facts.” Godbout v. Cousens, 396 Mass. 254, 261 (1985). “A party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass.R.Civ.P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of providing an essential element of that party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). See also Flesner v. Technical Communications Corp., 410 Mass. 805, 808-09 (1991).

The Defendants contend that there is no dispute that the presence of mold in both the former and current residences (1E Raintree Circle and 4A Raintree Circle), violated the Plaintiff’s obligations to maintain the Premises in a habitable condition pursuant to the implied warranty of habitability and M.G.L. c. 93A. The Defendants further contend that because the Plaintiff is an Accredited Member of the Institute of Real Estate Management (“IREM”), a professional organization, the Plaintiff’s obligations under the implied warranty of habitability and M.G.L. c. 93A are determined not only by reference to the State Sanitary Code, but also by the higher standards established by the IREM[2].

In the Defendant’s Memorandum in Support of Summary Judgment, the Defendants point to portions of “Mold: What Every Professional Real Estate Manager Needs to Know”, a report published by IREM. The report contains numerous directives to real estate managers, including instructing managers that they “must take an active role in assuring that mold germination in indoor environments is minimized, if not completely eliminated” and stating that suspected mold must be addressed promptly. Defendants’ Memorandum in Support of Summary Judgment, Exhibit B. The Defendants also refer to the Institute of Inspection, Cleaning, and Restoration Certification (“IICRC”) standards for mold remediation. Defendants’ Memorandum in Support of Summary Judgment, Exhibit C. This guide presents standards the IICRC, a professional organization, has developed for the prevention and removal of mold in an indoor environment. Defendants’ Memorandum in Support of Summary Judgment, Exhibit C. The IICRC in its guide acknowledges that deviations from its standards may be warranted, as every mold situation is unique. Defendants’ Memorandum in Support of Summary Judgment, Exhibit C.

The implied warranty of habitability is the landlord’s promise that the premises will meet certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the tenant is in material violation of the minimum standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). A landlord must have actual or constructive notice of the condition creating the violation. McKenna v. Begin, 3 Mass.App.Ct. 168 (1975). Damages are assessed from the date the landlord had notice of the condition of disrepair. Berman & Sons v. Jefferson, 379 Mass. 196 (1979). The measure of damages for breach of the implied warranty of

habitability is the difference between the fair rental value of the premises as warranted and the fair rental value of the premises with the defects. McKenna v. Begin, supra at 172.

M.G.L. c. 93A(2)(a) states that “Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” Subsection (2)(c) states that “The attorney general may make rules and regulations interpreting the provisions of subsection 2(a) of this chapter…”

Pursuant to the Attorney General’s Consumer Protection Regulations codified at 940 CMR 3.17(1)(b): “It shall be an unfair or deceptive act or practice for an owner to:…fail, during the terms of the tenancy, after notice is provided in accordance with M.G.L. c. 111, s.127L, to (1) remedy a violation of law in a dwelling unit which may endanger or materially impair the health, safety, or well-being of the occupant, or (2) maintain the dwelling unit in a condition fit for human habitation; provided, however, that said violation of law was not caused by the occupant or others lawfully upon said dwelling unit…”. Therefore, in order to prevail on their Motion for Summary Judgment as to their M.G.L. c. 93A counterclaim, the Defendants must make an initial showing that the Plaintiff breached the implied warranty of habitability.

In affidavits submitted to the Court and in their Answer and Counterclaims, the Defendants state that they informed the Plaintiff of the presence of mold in their former unit as early as February 16, 2006. They further allege that the Plaintiff failed to address the mold problem until May 1, 2006, when the Plaintiff relocated the Defendants to their current Premises at 4A Raintree Circle. Finally, the Defendants contend that the mold at the current Premises, which they discovered after they were relocated, also breached the implied warranty of habitability and, accordingly, M.G.L. c. 93A.

The Defendants rely upon a deposition of Thomas Johnson, M.D., to support their contention that mold at both apartments caused physical harm to the Defendants. Dr. Johnson stated in his deposition that exposure to mold exacerbated the Defendant Holly Mellman’s respiratory problems. Deposition of Dr. Thomas Johnson, p.29, lines 16-21; p.30, lines 18-24. The Court notes, however, that Dr. Johnson’s testimony is relevant only to the causal relationship between the Defendant’s exposure to mold and the respiratory problems the Defendant may have experienced. Dr. Johnson did not testify that the Plaintiff failed to adequately address a mold problem at the Defendants’ current or former residences.

The Plaintiff, in its Memorandum In Support of Opposition to Defendants’ Motion for Summary Judgment, argues that it addressed the mold problems in both units in a timely manner. The Plaintiff submitted an affidavit of Knija Dingle (“Dingle”), the property manager for the Plaintiff, in which Dingle asserts that she first learned of a report confirming the presence of mold at the Premises in March 2006. She further stated that soon after the Board of Health inspected the Premises the Defendants were relocated to the current apartment. Further, the Plaintiff states that it inspected the Premises the day after the Defendants reported a mold problem. The Plaintiff further states the Board of Health inspected the

Premises on April 20, 2006, and that the Plaintiff consequently relocated the Defendants on May 1, 2006, within ten (10) days of the date of the Board of Health inspection. Thus, the Plaintiff argues that it promptly responded to the Defendants’ complaints and, therefore, a genuine issue of material fact exists as to a breach of the implied warranty of habitability and M.G.L. c. 93A.

The Court finds that the Defendants failed to prove that the Plaintiff, as a matter of law, has an elevated standard with regard to property maintenance and mold remediation as a result of its membership status with IREM. The Plaintiff is subject to the standards expressed in the State Sanitary Code, the Building Code, and related regulations for residential properties. The Defendants are unable to point to uncontroverted facts in the pleadings and affidavits that have been submitted to the Court to show that the Plaintiff breached the implied warranty of habitability. See Community National Bank, 369 Mass. at 553-556. Although the Defendants contend that the Plaintiff failed to respond in a timely manner to the Defendants’ complaints of mold in the Premises and thereby breached the implied warranty of habitability, the Plaintiff, through Dingle’s affidavit, counters that it did, in fact, respond promptly to the Defendants’ reports of mold at the Premises. Therefore, the Court or the jury will have to determine the facts in dispute in this matter. The Court finds that the Defendants have failed for purposes of this Motion for Summary Judgment to meet their initial burden of showing a breach of the implied warranty of habitability and consequent violation of M.G.L. c.93A.

The Court DENIES the Defendants’ Motion for Summary Judgment as to their claims pursuant to M.G.L. c. 93A.

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[1] The Defendants’ counterclaim for the Plaintiff’s alleged breach of the Lease was voluntarily dismissed by this Court on February 12, 2007.

[2] The Court notes that it was unable to locate any cases in Massachusetts in which the standard for the implied warranty of habitability was based on something other than the State Sanitary Code, Building Code, or regulations for residential purposes.

End Of Decision

HOUSING COURT

Walter V. Denham, Jr., and Pamela L. Denham v. Gregory Paduch and Debra Paduch

SOUTHEASTERN DIVISION

Docket # Docket No. 07-SP-05017

Parties: Walter V. Denham, Jr., and Pamela L. Denham v. Gregory Paduch and Debra Paduch

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: May 15, 2007

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

The Plaintiffs brought this summary process action seeking possession and damages for unpaid use and occupancy from the Defendants. The Defendants filed an Answer and presented counterclaims at trial on March 28, 2007. The Plaintiffs were represented by counsel; the Defendants appeared pro se, although the Answer was filed by an attorney.

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

Plaintiff Pamela Denham (“Denham”) testified that she and her husband, Plaintiff Walter V. Denham, Jr., own a single-family home located at 41 Gerrish Road in Rochester, MA (the “Premises”). She testified that during the month of October 2006, she and her husband negotiated the sale of the Premises to the Defendants, Gregory and Debra Paduch.

Denham stated that the parties entered into a written Use and Occupancy Agreement (the “Agreement”) dated October 27, 2006 in contemplation of closing on the Premises. Plaintiffs’ Exhibit 1. She testified that all parties signed the Agreement on October 27, 2006, and stated that the Defendants took possession of the Premises on that date. Pursuant to the Agreement, use and occupancy payments in the amount of $1,500.00 per month were due on or before the first of each month. Plaintiffs’ Exhibit 1, Paragraph 2. The Agreement per its terms terminated on December 31, 2006, and, upon termination, provided for use and occupancy payments of $100.00 per day for each day the Defendants remained in possession of the Premises after December 31, 2006. Plaintiffs’ Exhibit 1, Paragraph 8. The Agreement further states that the Defendants were responsible for costs and reasonable legal fees incurred by the Plaintiffs in effecting the removal of the Defendants if they failed to timely vacate the Premises. Plaintiffs’ Exhibit 1, Paragraph 8. The Agreement also provides that the Defendants were responsible for all maintenance and repairs to the Premises.[1] Plaintiffs’ Exhibit 1, Paragraph 3.

Denham testified that the Defendants failed to vacate the Premises on or before December 31, 2006, and confirmed that the Defendants continued to occupy the Premises through the trial date on March 28, 2007. She further stated that the Defendants paid $1,500.00 per month for use and occupancy for the months of January, February, and March 2007. She was credible in her testimony.

The Plaintiffs served the Defendants with a Notice to Vacate on January 12, 2007.[2] The Plaintiffs served the Defendants with a Summons and Complaint on March 2, 2007, with an Account Annexed of $3,632.26 for the period of January 2007 through March 2007.

The Court finds that the Use and Occupancy Agreement did not create a tenancy. The Court, though, finds that the arrangement between the Plaintiffs and the Defendants constitutes a tenancy that terminated by its terms on December 31, 2006. Accordingly, the present action is governed by both the terms of the Agreement[3] and the applicable laws of the Commonwealth. See McCormick v. Parlon, Boston Housing Court Docket No. 04-SP-00065 (Feb. 4, 2004)(Pierce, J.).

A landlord has the right to possession pursuant to M.G.L. c. 239, s.1. The Court finds that the Plaintiffs have proven their prima facie case for possession and damages against the Defendants for unpaid use and occupancy in the amount of $4,200.00, plus costs, calculated as follows: $8,700.00 ($100.00 per day for the period of January 1, 2007 through March 28, 2007, the date of trial[4]) – $4,500.00 ($1,500.00 monthly use and occupancy payments made by the Defendants for the period of January 2007 through March 2007) = $4,200.00. The Defendants have presented affirmative defenses and counterclaims.

The Defendants’ Defenses and Counterclaims

M.G.L. c. 239, s.8A p.1 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.” A tenant at sufferance is an occupant who may assert a defense to possession and counterclaims pursuant to M.G.L. c. 239, s.8A. See M.G.L. c. 239, s.8A; Martinez v. Silva, Boston Housing Court Docket No. 99-SP-02319 (July 12, 1999)(Winik, J.).

Pursuant to M.G.L. c. 239, s.8A p.2, where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to a defense to possession only if: (1) the landlord knew or should have known of the 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 Debra Paduch (“Paduch”) testified that a small amount of water entered the basement in November 2006. She further stated that on February 12, 2007 through March 12, 2007, water entered the Premises, causing puddles up to two inches deep to form around the furnace and dryer. She was credible in her testimony. The Defendant failed to testify as to when or whether she informed the Plaintiffs of the water seepage problem in either November 2006 or February 2007.

Pamela Denham, the Plaintiff, stated that sometime around March 9, 2007, the Plaintiffs’ real estate broker informed the Plaintiff of the water seepage problem. Denham further stated that she hired a contractor to make the repairs to the Premises and that, to the best of her knowledge, the water seepage problem was resolved on March 12, 2007. She was credible in her testimony.

The Plaintiff testified, and the Court finds, that she was unaware of the water seepage condition prior to March 9, 2007, the date the real estate broker informed the Plaintiffs of the water in the Premises. The Plaintiff further testified, and the Court finds, that the Defendants were in arrears on the use and occupancy payments on January 12, 2007, after service of the Notice to Vacate. As the Plaintiffs were first informed of the conditions at the Premises after the Defendants were served with the Notice to Vacate and a Summons and Complaint, the Court finds that the Defendants are not entitled to a defense to possession pursuant to M.G.L. c. 239, s.8A p.2. See M.G.L. c. 239, s.8A p.2.

The Implied Warranty of Habitability

The implied warranty of habitability is the landlord’s promise that the premises will meet certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the tenant is in material violation of the minimum standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). A landlord must have actual or constructive notice of the condition creating the violation. McKenna v. Begin, 3 Mass.App.Ct. 168 (1975). Damages are assessed from the date the landlord had notice of the condition of disrepair. Berman & Sons v. Jefferson, 379 Mass. 196 (1979). The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises as warranted and the fair rental value of the premises with the defects. McKenna v. Begin, supra at 172.

The Court finds that the water seepage condition at the Premises violated the State Sanitary Code[5] for the period of February 12, 2007, through March 12, 2007. The Court further finds that the Plaintiffs were not aware of the condition at the Premises until a real estate broker informed them of the condition on March 9, 2007. The Plaintiffs had no reason to know of the condition earlier than March 9, 2007, as they no longer resided in the Premises and did not access the Premises for any reason. Accordingly, the Court finds that the Defendants are entitled to a rent abatement in the amount of $40.00, calculated as follows: $100.00 per day[6] x 10% = $10.00 x 4 days[7] = $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 Plaintiffs for possession and damages for unpaid use and occupancy in the amount of $4,200.00, plus costs in the amount of $200.60, totaling $4,400.60.

2. Judgment enter for the Defendants on their counterclaim for the Plaintiffs’ breach of the implied warranty of habitability in the amount of $40.00.

3. The foregoing orders for judgment paragraphs 1 and 2 result in a net judgment in favor of the Plaintiffs in the amount of $4,360.60.

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

cc: Susan E. Callan, Esq.

Gregory Paduch

Debra Paduch

End Of Decision

HOUSING COURT

Todd Donati v. Patricia and Steven Ezekiel and Patricia and Steven Ezekiel v. Todd Donati

SOUTHEASTERN DIVISION

Docket # Docket No. 06-SP-05295 / 06-CV-01085

Parties: Todd Donati v. Patricia and Steven Ezekiel and Patricia and Steven Ezekiel v. Todd Donati

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: May 10, 2007

MEMORANDUM OF DECISION AND ORDER ON MOTION TO ESTABLISH AND ENFORCE ATTORNEY’S LIEN

The matter before this Court involves a Motion to Establish and Enforce Attorney’s Lien in the amount of $13,037.52 that was filed by the Ezekiels’ attorney, Lee P. Alfieri (“Alfieri”). Neither the Ezekiels nor the Plaintiff Todd Donati (“Donati”) filed an opposition or appeared at the March 12, 2007, hearing on this Motion.

In May 2006, the Plaintiff filed a summary process action seeking unpaid rent and possession of the Premises occupied by the Defendants, Patricia and Steven Ezekiel. The Defendants, represented by Alfieri, presented numerous counterclaims, including retaliation, breach of the implied warranty of habitability, breach of the covenant of quiet enjoyment, and violation of the consumer protection statute, M.G.L. c. 93A. In its January 4, 2007, Memorandum of Decision, the Court (Edwards, J.) found for the Plaintiff on his claim for back rent and court costs in the amount of $11,230.00. The Court further found for the Defendants on their

counterclaims for retaliation, breach of the implied warranty of habitability, and breach of the covenant of quiet enjoyment in the amount of $9,045.26, plus reasonable attorney’s fees. The Court found for the Plaintiff on the Defendant’s counterclaim for violation of M.G.L. c. 93A.

Alfieri, in accordance with the Court’s January 4, 2007, Order submitted to this Court a Motion for Counsel Fees, Costs, and Expenses. A hearing on said Motion was conducted on January 22, 2007. This Court, in its February 21, 2007 Order, awarded the Defendants legal fees and costs in the amount of $13,037.52.1 Alfieri, in the Motion currently before the Court, asks the Court to establish and enforce an attorney’s lien in the amount of $13,037.52.

M.G.L. c. 221, s.50 provides, in relevant part: “From the authorized commencement of an action, counterclaim or other proceeding in any court, or appearance in any proceeding before any state or federal department, board or commission, the attorney who appears for a client in such proceeding shall have a lien for his reasonable fees and expenses upon his client’s cause of action, counterclaim or claim, upon the judgment, decree, or other order in his client’s favor entered or made in such proceeding, and upon the proceeds derived therefrom. Upon request of the client or of the attorney, the court in which the proceeding is pending or, if the proceeding is not pending in a court, the superior court, may determine and enforce the lien; provided, that the provisions of this sentence shall not apply to any case where the method of the determination of attorneys’ fees is otherwise expressly provided by statute.”

The Court, in its January 4, 2007 Order, awarded attorney’s fees to the Defendants from the Plaintiff pursuant to M.G.L. c. 186, s.14 and M.G.L. c. 186, s.18. Said statutes expressly provide for the method of determination of attorneys’ fees by permitting the Court to enter judgment for an attorney who is awarded attorney’s fees pursuant to those statutes. The Court has entered judgment for Mr. Alfieri against the Plaintiff for the attorney’s fees awarded on February 21, 2007. Accordingly, the Court finds that M.G.L. c. 221, s.50 is inapplicable as to the Motion. Attorney Alfieri’s Motion to Establish and Enforce Attorney’s Lien is hereby DENIED.

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[1] The Court notes that an appeal of the January 4, 2007 Decision had to be filed prior to January 15, 2007. As neither party has perfected an appeal in accordance with the Uniform Summary Process Rules, no appeal is pending in this action.

– 4-

End Of Decision

HOUSING COURT

Todd Donati v. Steven Ezekiel and Patricia Ezekiel

SOUTHEASTERN DIVISION

Docket # Docket No. 06-SP-05295 / 06-CV-01085

Parties: Todd Donati v. Steven Ezekiel and Patricia Ezekiel

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: January 4, 2007

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

These consolidated civil and summary process actions involve the use and occupancy of a trailer in Carver, MA. The summary process action, #06-SP-05295, was brought by the Plaintiff, Todd Donati, pro se against the Defendants, Steven and Patricia Ezekiel, for possession. Following amendment, he also seeks rent arrearage. In #06-CV-01085, the Ezekiels separately filed a civil action against Todd Donati alleging breach of the implied warranty of habitability, breach of the covenant of quiet enjoyment, retaliatory eviction, and a violation of the Consumer Protection Statute, M.G.L. c. 93A. The cases were consolidated for trial and both parties were represented by counsel.

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

Plaintiff Todd Donati testified that he is the owner of a 72 foot long by 12 foot wide trailer located at 9 David Road in Carver, MA (the “Premises”), which he purchased sometime in 2001. The Plaintiff confirmed that trailer is sited perpendicular to

David Road. There is one bedroom at either end of the trailer. In the middle of the structure is a living room with a fireplace, a kitchen, two bathrooms, and a corridor. The oil burner that serves the trailer is located near the second bathroom at the rear of the trailer. The heat for the trailer is delivered through under-floor heating conduits that lead to vents that deliver forced hot air. The Plaintiff did not know whether the Premises was served by town water or was on well water. The Court found his testimony credible.

Plaintiff’s Rent Claim

The Plaintiff testified that he rented the Premises to the Defendants at the rate of $850.00 a month and received $10,200.00 in advance from the Defendants. The Plaintiff testified and the Court finds that the Defendants, with their two children, accepted occupancy of the Premises as of July 1, 2005. Defendant’s Exhibit A. As the rent was paid in advance for one year, there was no testimony as to the monthly rental payment due date. He subsequently testified that his fiance€, Kelly Estano, is the sister of Defendant Steven Ezekiel and that all the parties had lived together in another property prior to July 2005. He was credible in his testimony.

Kelly Estano testified and confirmed receipt of the $10,200.00 advance rent payment from Steven Ezekiel.[1] She also testified that the Defendants initially moved their belongings into the Premises on July 1, 2005. She testified that there was no written lease or agreement between the parties. The Court found her testimony credible.

The Plaintiff identified a Notice to Vacate the Premises he sent to the Defendants on or about January 13, 2006 and received by the Defendants on January 19, 2006. Defendant’s Exhibit B with receipt from Post Office. The Notice to Vacate the Premises read, in pertinent part: “This notice is to give Steven and Patricia Ezekiel until 12:01 A.M., April 1, 2006, to vacate the property at 9 David Road in Carver, MA, 02330” (emphasis in original). Mr. Donati also confirmed that, at the time he sent the Notice to Vacate the Premises, he retained the remainder of the $10,200.00 delivered to him by the Defendants. On April 28, 2006, he served a Summons and Complaint on the Defendants. The Court finds his testimony credible.

The Plaintiff submitted to the Court a letter he received on May 25, 2006, in which the Defendants demanded the return of $8,500.00, which the Defendants deemed a security deposit. Plaintiff’s Exhibit 1. The Defendants submitted into evidence a letter to the Plaintiff dated June 13, 2006, in which the Defendants acknowledged the return of the $8,500.00. Defendant’s Exhibit G. Thus, upon the return to the Defendants of $8,500.00, the Plaintiff retained $1,700.00 of the original $10,200.00, an amount equal to two months’ rent at the rate of $850.00 per month.

M.G.L. c. 186, s.12 provides, in relevant part: “Estates at will may be determined by either party with three months’ notice in writing…and, if the rent reserved is payable at periods of less than three months, the time of such notice shall be sufficient if

it is equal to the interval between the days of payment or thirty days, whichever is longer…” Ducker v. Ducker, 1997 Mass. App. ?. 147, 149-50 (1997). Further, a tenancy at will terminated by a Notice to Quit must be terminated on the date on which rent is due; if no rent due-date is specified, the date on which rent is due is deemed to be the last of the month. Connors v. Wick, 317 Mass. 628, 631 (1945). A Notice to Quit is not required prior to filing a Summary Process Summons and Complaint when the tenant is a tenant at sufferance. Margosian v. Markarian, 288 Mass. 197, 199 (1934); Citicorp Mortgage, Inc., v. Gates, Boston Housing Court Docket No. 96-06324 (October 14, 1997)(Daher, C.J.).

In the instant case, the Court finds that the Defendants became tenants at sufferance upon the return to them of a portion of the prepaid rent in the amount of $8,500.00. See Elliott v. Stone, 67 Mass. 571, 576 (1854). There was no testimony or evidence presented that the Defendants subsequently paid any rent or use and occupancy after the return of the above amount. As a result, the Court credits the Defendants with two months’ rent, for July and August 2005. Consequently, the Court finds that the Defendants have been tenants at sufferance since September 2005, the first month in which they breached their oral agreement to pay rent in advance. Therefore, the Plaintiff was not required to send the Defendants a Notice to Quit prior to commencing this Summary Process action on May 12, 2006. See Margosian v. Markarian, 288 Mass. 197, 199 (1934); Citicorp Mortgage, Inc., v. Gates, Boston Housing Court Docket No. 96-06324 (October 14, 1997)(Daher, C.J.).

A landlord has the right to possession pursuant to M.G.L. c. 239, s.1. The Court finds that the Plaintiff has proven his prima facie case for possession and damages against the Defendants for unpaid use and occupancy in the amount of $11,050.00, plus costs, calculated at the rate of $850.00 per month for the months of September 2005 through September 2006. The Defendants have presented affirmative defenses and counterclaims.

The Defendants’ Counterclaims

The Defendants have brought counterclaims against the Plaintiff alleging retaliatory eviction, breach of the implied warranty of habitability, breach of the covenant of quiet enjoyment, and a violation of the Consumer Protection Statute, M.G.L. c. 93A.

The Plaintiff, Todd Donati, testified that on July 1, 2005 the trailer was in good condition, except for rot on the exterior. The Plaintiff also testified that during his occupancy of the unit he had replaced some of the wood in the kitchen floor. He also installed new rugs just prior to the Defendants’ occupancy of the Premises in July 2005. He testified that there was no express written or oral agreement between the parties as to responsibility for maintenance or improvements but that it was his further understanding that the Defendants took the Premises in an “as is” condition. He stated that he was aware of a problem with the air conditioner fuses but that the problem was fixed by a friend of the Defendants. The Court finds this testimony credible. He went on to testify that he never received any complaints concerning a missing sash or other problems with the windows in the front

portion of the Premises prior to November 2005 but that he did undertake to make the repairs to those windows and completed them by February 2006. The Court did not find his testimony credible as to lack of knowledge regarding the broken windows prior to November 2005.

He went on to testify that sometime in early December 2005 the waste line beneath one of the toilets in the trailer broke. The Plaintiff testified that he went to the Premises when he received a call from the Defendants concerning a smell coming from beneath the trailer floor. He testified that he removed the skirting around the base of the trailer to obtain access to the crawlspace and was able to confirm the broken waste pipe. He then stated that he called a plumbing company to make the plumbing repair to the waste line and further retained a clean-up specialist to remove the sewage that was beneath the trailer. Defendant’s Exhibits 1-3. He went on to state that he did not replace the skirting on the lower portion of the trailer himself but believed that his fiancee Kelly Estano and her brother, Defendant Steven Ezekial, placed plastic on rear portions of the trailer in place of the missing skirting. He further testified that he had heard that the Defendants had problems with heating of the Premises but he did nothing to further investigate the issue except to add some insulation beneath the flooring. He also testified that he ordered replacement skirting but that it was not installed at the Premises prior to April 2006. The Court found his testimony credible.

In addition to the broken sewage pipe, the Plaintiff testified that he received only one notice of frozen water pipes beneath the Premises. He stated that he thought that Kelly Estano had resolved any problems with frozen pipes with the purchase of a space heater that was placed under the trailer to keep the pipes from freezing. The Plaintiff testified that he observed that there was no insulation under the rear half of the trailer but he stated that he thought he had insulated at least a portion of the trailer. He testified that he was aware of a leaking bathtub drain in the main bathroom sometime during early February 2006.

He confirmed receipt of a letter dated January 30, 2006, from the Town of Carver Board of Health (the “Board of Health”) indicating that Robert Tinkham, an Inspector with the Board of Health, had conducted an inspection of the Premises on January 25, 2006 at the request of the Defendants. This report enumerates several conditions in violation of 105 C.M.R. 410.000, including: 1) missing insulation below the unit that causes pipes to freeze; 2) missing storm windows; 3) front picture windows with holes; 4) rotten wood in the rear kitchen door, which is unable to support the weight of the home as a result; 5) missing skirting in several places around the unit; 6) a running toilet in secondary bathroom; 7) shower door in secondary bathroom is not watertight; 8) insufficient hot water; 9) weak spots throughout kitchen floor; 10) lack of drainage in the main bathroom; 11) toilet in main bathroom is not working; 12) front left burner on stove is not working; 13) external electric outlets that trip the circuit breaker; and 14) kitchen ceiling fan is not working. Defendant’s Exhibit F. He

denied knowledge of item #1 regarding missing insulation, confirmed item #5 as to the missing skirt, and confirmed item #9, that the kitchen floor had linoleum problems. He also stated that he does not know how many items were repaired by March 1, 2006.

He confirmed that vinyl siding was installed sometime in February 2006 and that there hasn’t been any insulation installed beneath the trailer. He also stated that there are continuing problems with the main bathroom shower and an outside light fixture. The Court found his testimony credible.

Donald Estano, Kelly Estano’s former husband, testified that he replaced or repaired certain items as shown on Defendant’s Exhibit H. He testified that in November 2005 he repaired a ceiling fan, a leaky kitchen faucet, and the toilet in the main bathroom. He further testified that he repaired the frozen pipes beneath the trailer twice in December 2005 and the toilet in the spare bathroom in February 2006. He also confirmed the problem with the broken sewage pipe. He continued his testimony by indicating that heating ducts, along with some of the insulation, had dislodged from their fastenings beneath the trailer floor. He was credible in his testimony.

Steven Ezekiel confirmed that he and his wife had previously lived with the Plaintiff and Ezekiel’s sister, Kelly Estano, in another residence prior to July 1, 2005. He identified Defendant’s Exhibits D1-4 as photographs taken of the Premises during his tenancy. He also discussed a three-section bay window in the front of the Premises that was broken at the time of the initial occupancy and which was repaired sometime before February 2006. He testified that two sashes were missing from the three-section bay window at the rear of the Premises. He also testified that windows in his children’s bedroom (the bedroom closest to David Road) were broken. As a result of these problems with the windows, he testified that there were drafts of cold air coming into the unit. He went on to state that he called the Plaintiff numerous times in November 2005 to advise him of the problems with the windows. The Court found his testimony credible.

Mr. Ezekiel testified to smelling a rancid odor in the Premises beginning in early November 2005 and continuing through December 2005. He confirmed that the Plaintiff came down to the Premises and removed approximately sixty per cent (60%) of the skirting around the trailer. At this time, they all discovered the sewage effluent underneath the Premises. He also observed insulation hanging from underneath the floor along with unsecured wires at this location. After the sewage pipe was repaired, he testified that the Plaintiff did not replace the insulation beneath the trailer. Further, the skirting was replaced with a thin plastic film rather than material that was similar to that which was removed. This plastic was attached with wooden strips and rocks to hold it to the ground. Mr. Ezekiel stated that, as a result, heat escaped from beneath the trailer. The family was required to conduct their daily activities and sleep together in the living room; Mr. Ezekiel covered the vents in the children’s bedroom to conserve heat in the remainder of the trailer. The

family stayed in the living room from December 2005 through March 2006. New skirting was delivered sometime in February 2006 and installed in April of 2006. He went on to state that he tried to fix the insulation under the children’s bedroom but was unable to do so. The Court found his testimony credible.

The Defendant testified that he had conversations with the Plaintiff in January 2006, at which time he told the Plaintiff he would contact the Town of Carver Board of Health (the “Board of Health”) regarding the conditions at the Premises. The Defendant stated that, at the time of trial, a large amount of insulation was still missing from beneath the flooring in the Premises. He further stated that other adverse conditions still existed at the Premises at the time of trial, including insufficient hot water, a leak in the sewer pipe, and a problem with the outside electric outlets, which continued to trip the circuit breakers at the Premises. He further identified photographs depicting the broken pipes beneath the Premises. Defendant’s Exhibit I. Mr. Ezekiel stated that the subflooring in the kitchen had not been replaced and that the kitchen flooring tiles were glued down on top of the particle board rather than replaced on new subflooring. He further stated that, one week after installation, these tiles separated from the particle board. Defendant’s Exhibit M.

The Defendant testified that other conditions had been addressed by the Plaintiff, including: the storm windows, the front left burner on the stove, and the shower door were all repaired in February 2006; the back door and the skirting were replaced and the leak in the toilet in the main bathroom was repaired in April 2006; and the drain in the main bathroom shower had been repaired. The Defendant further confirmed that new joists were installed near the heating vent and in front of the door in the kitchen. Work was completed after June 30, 2006 on the kitchen floor joists. He was credible in his testimony.

The Defendant identified letters sent by the Board of Health to the Plaintiff (including the January 30, 2006, letter, acknowledged by the Plaintiff) in which the Board of Health informed the Plaintiff of the conditions at the Premises in need of repair or replacement. Defendant’s Exhibit F. On March 9, 2006, the Board of Health sent a second letter to the Plaintiff reconfirming the necessity for repairs as identified in the January 30, 2006 letter from the Board of Health to the Plaintiff and extending to the Plaintiff additional time to complete those repairs. Defendant’s Exhibit F. On April 20, 2006, the Board of Health sent a final letter to the Plaintiff, confirming that most conditions referenced in the January 30, 2006 and March 9, 2006 letters had been addressed. Defendant’s Exhibit F. The Board of Health, in the April 20th letter, expressed concern that the insulation beneath the home was inadequate, and stated that the outside fixtures and main bathroom shower/tub control needed replacement. Defendant’s Exhibit F. The Court found Mr. Ezekiel’s testimony credible.

A Ceasar Cuiello, a private individual with construction experience, testified that he had inspected the Premises on August 12, 2006, and had taken photographs of the Premises. Defendant’s

Exhibits J, K, and L. These photographs depicted the area beneath the Premises, including a broken pipe and insulation hanging from beneath the floor of the Premises. Defendant’s Exhibits J, K, and L. He testified that there was very little insulation under the main bathroom, and there was no insulation on the ducts from the front to the back of the Premises. He further testified that the flooring in the kitchen of the Premises was rotted out, and that the kitchen floor tiles the Plaintiff had glued down had separated from the particle board. Defendant’s Exhibit K. Mr. Cuiello stated that the light fixtures on the exterior of the Premises were failing and frequently tripped the circuit breakers. Defendant’s Exhibit L. Mr. Cuiello further stated that the circuit breakers would not reset. The Court finds his testimony credible.

Defendants’ Retaliation Defense Pursuant to M.G.L. c. 239, s.2A

and Counterclaim Pursuant to M.G.L. c. 186, s.18

The Defendants have alleged that the Plaintiff retaliated against them for reporting conditions in the Premises. They now seek to retain possession and obtain damages from the Plaintiff.

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 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.” “Clear and convincing”evidence means evidence 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).

Similarly, M.G.L. c. 186, s.18 sets forth in pertinent part

a right of action for a tenant as to retaliation by a landlord: “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 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 tenants engaging in, or the belief that tenants had engaged in, activities protected under this section.” M.G.L. c. 186, s.18.

The Defendants have alleged that the Plaintiff retaliated against them for complaining to him and/or the Carver Board of Health as to the conditions in the Premises. The Court finds that the Defendants notified the Plaintiff of conditions in the Premises in November 2005, prior to service of the Notice to Vacate the Premises. As noted by the Court in this decision, many of these conditions continued to exist throughout most of the Winter and early Spring of 2006. The Defendants notified the Carver Board of Health of conditions at the Premises in January 2006, which resulted in letters to the Plaintiff from that agency on January 30, 2006, March 9, 2006, and April 20, 2006. The Court finds that the Defendants engaged in statutorily protected activities within six (6) months prior to both service of the Notice to Vacate the Premises and, further, within six (6) months prior to service of the Summons and Complaint. Accordingly, the rebuttable presumption of retaliation has been triggered by the Defendants’ actions in contacting both the Plaintiff and the Board of Health concerning the conditions at the Premises.

Based upon the testimony of the parties, the Court finds that the Plaintiff has failed to overcome the statutory presumption of retaliation as outlined in the statute by showing, with clear and convincing evidence, that he would have taken actions to evict the

Defendants regardless of whether the Defendants had engaged in statutorily protected activities. The Court finds that the Plaintiff, when faced with the complaints of the Defendants and the expense of maintaining the trailer for their use, decided to commence eviction proceedings against the Defendants rather than make the repairs. Accordingly, the Court finds for the Defendants on their defense of retaliation and grants them possession of the Premises. M.G.L. c. 239, s.2A; Williams v. Hills, Boston Housing Court Docket No. 98-SP-04281 (Sept. 21, 1998)(Winik, J.).

Further, the Court also finds for the Defendants on their counterclaim of retaliation and breach of M.G.L. c. 186, s.18. Defendants are awarded damages of $1,700.00, representing two months’ rent at the rate of $850.00 per month, plus reasonable attorneys’ fees and costs. Counsel for the Defendants shall submit to the Court within ten (10) days of the date that judgment enters a Motion for Counsel Fees, Costs, and Expenses in accordance with the procedure prescribed in Yorke Mgmt. v. Castro, 406 Mass. 17, 20 (1989); Roberts v. Dept. of State Police, Mass. Super. Ct. No. 0101877 (Sept. 26, 2002).

Defendants’ Implied Warranty of Habitability Claim

The Defendants allege that conditions in the Premises violated the implied warranty of habitability. The implied warranty of habitability is the landlord’s promise that the premises will meet certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the tenant is in material violation of the minimum standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). A landlord must have actual or constructive notice of the condition creating the violation. McKenna v. Begin, 3 Mass.App.Ct. 168 (1975). Damages are assessed from the date the landlord had notice of the condition of disrepair. Berman & Sons v. Jefferson, 379 Mass. 196 (1979). The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises as warranted and the fair rental value of the premises with the defects. McKenna v. Begin, supra at 172.

Based on the evidence presented at trial, the Court finds there were numerous defects throughout the Premises during the Defendants’ occupancy.[2] The Plaintiff acknowledged exterior rot at the Premises at the inception of the tenancy on July 1, 2005; there was no testimony or evidence presented to indicate that this condition had been repaired prior to trial on September 11, 2006. The Defendants testified that they informed the Plaintiff in November 2005 of broken windows and window sashes at the Premises; the Plaintiff repaired these defects sometime in February 2006.

The Plaintiff acknowledged receiving notice of the broken toilet waste line and, following its repair, failed to replace the skirting on the trailer. The Court notes that the plastic film used as a temporary skirting barrier was insufficient to stop cold drafts from entering the poorly-insulated Premises. Additionally, the Plaintiff had notice of a continuing problem with frozen pipes

beneath the trailer commencing as early as December 5, 2005. The broken sewage line was repaired on December 7, 2005, while the frozen pipes were the subject of several repairs, with the latest repair by Mr. Estano in February 2006. The missing trailer skirting was not replaced until April 2006.

The Town of Carver Board of Health notified the Plaintiff of several defective conditions in its report dated January 30, 2006, including: 1) missing insulation beneath the Premises that causes pipes to freeze; 2) missing storm windows; 3) front picture windows with holes; 4) rotten wood in the rear kitchen door, which is unable to support the weight of the home as a result; 5) missing skirting in several places around the unit; 6) a running toilet in secondary bathroom; 7) shower door in secondary bathroom is not watertight; 8) insufficient hot water; 9) weak spots throughout the kitchen floor; 10) lack of drainage in the main bathroom; 11) toilet in main bathroom is not working; 12) front left burner on stove is not working; 13) external electric outlets that trip the circuit breaker; and 14) kitchen ceiling fan is not working. Several of these items were repaired in February 2006, including the leaking bathtub drain, the missing storm windows, the defective toilets in both bathrooms, the broken shower door in the main bathroom, the broken burner on the stove, and the broken kitchen ceiling fan.

Other items as identified by the Board of Health were repaired no later than April 20, 2006, the date of the follow-up inspection conducted by the Board of Health. At that inspection, the Board of Health noted that repairs to most of the conditions had been completed. The skirting had been reinstalled around the trailer and the holes in the windows and the window sashes had been repaired. The Plaintiff testified and the Court finds that the weak spots in the kitchen floor were repaired by June 30, 2006, when new joists were installed beneath the kitchen floor. The Court also finds, based on the Defendants’ testimony and the letter from the Board of Health dated April 20, 2006, that other adverse conditions remained at the Premises through the trial on September 11, 2006. The Plaintiff failed to provide adequate insulation or hot water to the Premises, and external outlets continued to trip the circuit breakers. Further, there was no testimony or evidence presented at trial as to the status of the kitchen tiles or the exterior rot.

Accordingly, the Court finds that the conditions at the Premises in the aggregate violated the implied warranty of habitability for a period of 438 days.[3] The Defendants are entitled to a rent abatement of $7,345.26, or sixty per cent (60%) calculated as follows: $27.95/day[4] x 60% = $16.77 x 438 days = $7,345.26.

Defendants’ Quiet Enjoyment Claim Pursuant to M.G.L. c. 186, s.14

The Defendants further allege a breach of M.G.L. c. 186, s.14, the quiet enjoyment statute. M.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…” A landlord violates M.G.L. c. 186, s.14 where he had notice, or reason to know of the serious condition in the tenant’s apartment, and failed to take appropriate corrective measures. Al Ziab v. Mourgis, 424 Mass. 847, 850-851 (1997); Cruz Management Co., Inc. v. Thomas, 417 Mass. 782 (1994).

Not every breach of the implied warranty of habitability constitutes a violation of M.G.L. c. 186, s.14. While the statute does not require that the landlord’s conduct be intentional, Simon v. Solomon, 385 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. 273, 284-285 (1994); Lowery v. Robinson, 13 Mass.App.Ct. 982 (1982). The Court finds that the Plaintiff breached the covenant of quiet enjoyment. Only after the Carver Board of Health conducted an inspection in January 2006 and ordered the Plaintiff to comply and correct the violations did he make initial attempts to complete the required repairs to the Premises, other than the repair to the broken waste pipe and the frozen water pipes. Specifically, the Plaintiff failed to make numerous repairs upon learning of them, and instead took weeks or months to perform the following repairs: replace the missing skirting around the base of the trailer, replace the missing insulation from beneath the trailer, repair the weak spots in the kitchen floor, address a lack or insufficiency of heat and hot water, repair the windows throughout the Premises and provide storm windows, repair the running toilet in the second bathroom and the leaking toilet in the main bathroom, repair the broken burner on the stove, repair the problems with the external electrical outlets and light fixtures, repair the drain in the main bathroom, and repair the kitchen ceiling fan.

In calculating the damages due the Defendants for Plaintiff’s breach of the covenant of quiet enjoyment, the Court must, under M.G.L. c. 186, s.14, compare the Defendants’ actual damages versus the statutory damages permitted under the statute.[5] The Defendants presented no evidence of actual damages. Therefore, the Defendants are entitled to statutory damages of $2,550.00 computed by trebling the monthly rent of $850.00. As computed pursuant to the statute, the Court must award the greater amount to the Defendants for their damages; accordingly, the Court finds in favor of the Defendants for the Plaintiff’s breach of quiet enjoyment in the amount of $2,550.00, plus reasonable attorneys’ fees and costs.

involve the same damages. The Court will therefore award damages to the Defendants on the implied warranty of habitability claim, as those damages provide a greater recovery to the Defendants.

The Plaintiff shall cure all remaining violations as listed in the Town of Carver Board of Health reports marked Defendant’s Exhibit F regarding the Premises within twenty-one (21) days from the date that judgment enters in this case. All work is to be done with appropriate permits, if necessary, at the Plaintiff’s sole expense and shall be completed in a good and workmanlike manner as set forth herein. Abrams v. Factory Mutual Liability Ins. Co., 298 Mass. 141, 143 (1937); Mass. Highway Dept. v. Walsh Construction Co., Mass. Super. Ct. No. 015746BLS (2003). The Defendants shall permit the Plaintiff and/or his agents access to complete the repairs upon 24 hours written notice during regular business hours (9:00 a.m. to 5:00 p.m.) Monday through Saturday.

Defendants’ M.G.L. c. 93A Counterclaim

The Defendants have alleged that the Plaintiff is engaged in trade or commerce as defined by M.G.L. c. 93A and that some or all of the Plaintiff’s acts constituted unfair or deceptive practices under that statute. The Court finds that the Defendants have failed to meet their burden as to the Plaintiff’s participation in trade or commerce under M.G.L. c. 93A. The Court finds that, at all times relevant to this action, the landlord/tenant relationship between the parties was essentially personal and did not constitute commercial activity. Susi v. DeCristofaro, Boston Housing Court Docket No. 98-SP-05862 (Sept. 1, 1999)(Winik, J.). The Court finds that the collection of rent was merely incidental to the Plaintiff’s primary purpose of providing housing to extended family members, and accordingly finds for the Plaintiff on the Defendants’ counterclaim under M.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 damages for unpaid use and occupancy in the

amount of $11,050.00, plus costs in the amount of $180.00, totaling $11,230.00.

2. Judgment enter for the Defendants for possession on their retaliation defense pursuant to M.G.L. c. 239, s.2A.

3. Judgment enter for the Defendants on their retaliation counterclaim pursuant to M.G.L. c. 186, s.18 for $1,700.00, plus reasonable attorneys’ fees and costs.

4. Judgment enter for the Defendants on their counterclaim for breach of the implied warranty of habitability in the amount of $7,345.26.

5. Judgment enter for the Defendants on their quiet enjoyment counterclaim pursuant to

M.G.L. c. 186, s.14; however, no duplicative damages are awarded.

6. Judgment enter for the Plaintiff on the Defendants’ counterclaim pursuant to M.G.L. c. 93A

7. The foregoing orders for judgment paragraphs 1 through 6 result in a net judgment in

favor of the Plaintiff in the amount of $2,184.74, less Defendants’ costs and reasonable 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). After hearing, the Court shall award reasonable attorneys’ fees and costs nunc pro tunc to the date of this Decision, and final judgment.

9. The Plaintiff shall cure all remaining violations as listed in the Town of Carver Board of Health violation notices marked Defendant’s Exhibit F within twenty-one (21) days from the date that judgment enters. All work is to be done with appropriate permits, if necessary, at the Plaintiff’s sole expense and shall be completed in a good and workmanlike manner.

cc: Christopher Maccaferri, Esq.

Lee P. Alfieri, Esq.

————————-

[1] The receipt also indicates a payment of $200.00 toward heating oil, separate from the $10,200.00 rental payment.

[2] The Court notes that neither party, with a few exceptions, could identify specific dates of repair.

[3] The period of July 1, 2005, through September 11, 2006, is 438 days.

[4] The per diem rental rate is calculated as follows: $850.00/month x 12 = $10,200.00 ? 365 days = $27.95/day.

[5] M.G.L. c. 186, s.14 in relevant part: “Any person who commits any act in violation of this section shall also 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.”

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End Of Decision

HOUSING COURT

Todd Donati v. Patricia and Steven Ezekiel

SOUTHEASTERN DIVISION

Docket # Docket No. 06-SP-0529 / 06-CV-01085

Parties: Todd Donati v. Patricia and Steven Ezekiel

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: February 21, 2007

ORDER AND AWARD OF LEGAL FEES

The Plaintiff, Todd Donati, brought a summary process action in this Court seeking possession of a mobile home for non-payment of use and occupancy. The Defendants, Patricia and Steven Ezekiel, filed an Answer and Counterclaims, denying that rent was owed to the Plaintiff and further alleging that the Plaintiff breached both the implied warranty of habitability and the covenant of quiet enjoyment pursuant to M.G.L. c. 186, s.14, retaliated against the Defendants in violation of M.G.L. c. 186, s.18, and violated portions of M.G.L. c. 93A.

The Court (Edwards, J.), on January 5, 2007, issued its Findings of Fact, Rulings of Law and Order for Judgment. This Court found that the Plaintiff was entitled to damages in the amount of $11,050.00 from the Defendants for nonpayment of use and occupancy. The Court found in favor of the Defendants on their counterclaims alleging Plaintiff’s breach of the implied warranty of habitability and the covenant of quiet enjoyment pursuant to M.G.L. c. 186, s.14, and further found that the Plaintiff retaliated against the Defendants in violation of M.G.L. c. 186, s.18 and M.G.L. c. 239, s.2A. The Court awarded damages to the Defendants in the amount of $9,045.26. The Court found in favor of the Plaintiff on Defendants’ M.G.L. c. 93A counterclaim.

Pursuant to the Order of Judgment, the Defendants were ordered to file with the Court a Motion for Counsel Fees, Costs, and Expenses within ten (10) days of the date that judgment entered. The Defendants have now done so. The Court conducted a hearing on the motions on January 22, 2007.

In determining an award of attorney’s fees the Court must consider “the nature of the case and the issues presented, the time and labor required, the amount of the damages involved, the result obtained, the experience, reputation and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases.” Linthicum v. Archambault, 379 Mass. 381, 388-9 (1979). See Heller v. Silverbranch Constr. 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 court judge. Linthicum v. Archambault, supra at 388. An evidentiary hearing is not required. Heller v. Silverbranch Constr. Corp., supra at 630-631 (“[because] we conclude that the judge is to rely on his firsthand knowledge of the services performed before him … the judge in the instant case acted properly in awarding the Hellers attorney’s fees,

notwithstanding the absence of evidence concerning time spent and the attorney’s usual charge.”). “A fair market rate for time reasonably spent preparing and litigating a case is the basic measure of a reasonable attorney’s fee under State law as well as Federal law.” Fontaine v. Ebtec Corporation, 415 Mass. 309, 326 (1993).

The Defendants were represented by Attorney Lee P. Alfieri, an attorney who has been admitted to practice in the Commonwealth of Massachusetts since December of 1985. Mr. Alfieri represented in his affidavit that his hourly rate is $150.00. The Court finds Mr. Alfieri’s hourly rate of $150.00 reasonable based upon rates normally charged by attorneys practicing in the greater Brockton area.

Attorney Alfieri has submitted an affidavit of legal fees along with the Motion for Attorney’s Fees, Costs, and Expenses, in which he describes the services he provided to his clients in this action. Mr. Alfieri, on behalf of his clients, has requested that the Court award legal fees in the amount of $13,698.50 for 91.49 hours of total time, including twenty-two hours of trial preparation and trial on August 11, 2006, August 21, 2006, September 6, 2006, and September 11, 2006. A portion of the trial and trial preparation was for the Defendants’ defenses and their counterclaims pursuant to M.G.L. c. 186, s.14, and M.G.L. c. 186, s.18. The Court notes that this trial represented a consolidation of a summary process and a civil action and presented somewhat complex legal issues. The main legal issue involved the prepayment of one year’s rent by the Defendants to the Plaintiff. The factual issues related to the Defendants’ numerous counterclaims based upon conditions in the Defendants’ premises and the Plaintiff’s retaliation. The Defendants’ counterclaims required lengthy preparation and presentation of testimony and documentation at trial as to the numerous State Sanitary Code violations in the Defendants’ premises. During all appearances before the Court in this case, Mr. Alfieri was prepared and represented his clients professionally.

The Court has reviewed the time submitted, and finds that 82.49 total hours is reasonable for these consolidated matters. The Defendants prevailed on their counterclaims for breach of quiet enjoyment, M.G.L. c. 186, s.14, and for retaliation pursuant to M.G.L. c. 186, s.18.1 The Court now awards the Defendants reasonable attorney’s fees in the amount of $12,373.50 based upon 82.49 hours of work at $150.00 an hour.

The Defendants also requested costs in the amount of $664.02, which represents court costs and fees including the cost of subpoenas, filings fees, certified copies, and service fees. The Court will award costs in the amount of $664.02 to the Defendants.

ORDER ON AWARD OF DEFENDANTS’ ATTORNEY’S FEES

It is ORDERED that:

1. The Defendants are awarded attorney’s fees in the amount of $12,373.50 and costs in the amount of $664.02, for a total of $13,037.52, nunc pro tunc to January 5, 2007.

cc: Christopher Maccaferri, Esq.

Lee P. Alfieri, Esq.

————————-

[1] The Defendants also prevailed on their breach of the implied warranty of habitability counterclaim.

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End Of Decision

HOUSING COURT

Ann-Marie Miele v. Frances M. Lynch

SOUTHEASTERN DIVISION

Docket # 06-CV-01027

Parties: Ann-Marie Miele v. Frances M. Lynch

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: March 13, 2007

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

The Plaintiff Ann-Marie Miele (“Miele”) commenced this civil action against her former landlord, the Defendant, Frances M. Lynch (“Lynch”). Miele alleges the Defendant failed to provide heat and hot water in violation of M.G.L. c. 186, s.14, and further alleges violations of M.G.L. c. 186, s.15B for the Defendant’s improper collection and handling of a security deposit and last month’s rent. The Defendant filed an Answer denying the Plaintiff’s allegations. Both parties were represented by counsel.

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

The Defendant testified that she owns residential property located at 28 Cedar Street in Duxbury, MA. The property is comprised of a main house, in which the Defendant resides, and an attached renovated barn which contains an apartment (the “Premises”). She testified that she purchased the home in 1988,

and had rented the Premises for a total of approximately seven months since that time when she was in need of extra income. The Premises has separate entrances and exits from the main house, and is partially furnished. The first floor is comprised of a living room, dining room, laundry area, and an area that may be used for cooking. The second floor houses a bedroom, closets, and bathroom. The Court found the Defendant credible on these issues.

The Plaintiff testified that in October 2005, after relocating from Florida, she responded to an advertisement in the Duxbury Clipper newspaper for a “Renovated Barn for Rent.”[1] Defendant’s Exhibit 1. The Plaintiff stated that she met with the Defendant and viewed the Premises in early October 2005. At that time, the Defendant stated that she would install a kitchen (including a stove, refrigerator, and sink) sometime in November 2005. The Plaintiff further stated that it was her understanding that she was not obligated to pay utilities until the time the Defendant installed a kitchen. The Plaintiff then stated that following the installation of the kitchen, she would be responsible for one-half of all utilities for both the Premises and the Defendant’s home. The Plaintiff stated that she agreed to rent the Premises and delivered a check in the amount of $300.00 to the Defendant on October 5, 2005, which she believed to be payment of a security deposit. Plaintiff’s Exhibit 1. The Plaintiff further testified that she delivered a check to the Defendant in the amount of $3,400.00 on October 6, 2005, representing first and last month’s rent at the rate of $1,700.00 per month. Plaintiff’s Exhibit 2. She acknowledged a portion of a writing signed by both parties, which noted the first and last month’s rental payments and the $300.00 payment, but she was unable to recall portions of the writing referring to the kitchen and two months’ notice[2]. Plaintiff’s Exhibit 4.

The Plaintiff continued her testimony by stating that she moved in to the Premises on October 6, 2005, at which time the Defendant informed her that the hot water heater was broken but that it would be repaired within a day. Miele testified that she did not have hot water through at least October 10, 2005, and that she was forced to shower at her sister’s home in Kingston, MA. The Plaintiff stated that she attempted to turn on the heat in the Premises by activating the thermostat, but that the heating system did not respond and there was no heat at the Premises. Miele testified that she informed the Defendant of the problems with the heat and hot water at the Premises, but neither was timely repaired.

Miele further testified that, as a result of these conditions, she attempted to negotiate an early termination of the tenancy with the Defendant, in which she offered to pay eight days’ worth of rent. The Plaintiff stated that the Defendant refused to return any portion of the $300.00 security deposit paid on October 5, 2005 or the $3,400.00, which represents two months’ rent at the rate of $1,700.00 per month, paid on October 6, 2005. The Plaintiff vacated the Premises on October 13, 2005, initially staying with her mother and subsequently signing an at-will tenancy agreement for another apartment at the rate of $1,100.00 per month. Plaintiff’s Exhibit 6. The Plaintiff testified that she has since

returned to Florida. She was credible in her entire testimony.

Lynch confirmed that she advertised the Premises in the Duxbury Clipper, seeking $1,700.00 monthly rent for the partially furnished Premises, and first and last month’s rent at the inception of the tenancy. Renovated Barn for Rent, Classifieds, Duxbury Clipper, Oct. 5, 2005; Defendant’s Exhibit 1. She testified that she collected $3,400.00 for two months’ rent from the Plaintiff on October 6, 2005, when the Plaintiff moved in to the Premises. Lynch also stated that she charged the Plaintiff a one-time nuisance fee of $300.00 because the Plaintiff had two small dogs whose barking would annoy the Defendant. She further testified that she and the Plaintiff signed a paper confirming the receipt of first and last month’s rent in the amount of $3,400.00 and the payment of $300.00. Plaintiff’s Exhibit 4, see footnote 2. The Defendant stated that she did not provide the Plaintiff with a receipt for the $300.00 payment or the first and last month’s rent, nor did she provide the Plaintiff with a Statement of Conditions. She did not inform the Plaintiff as to where she held or deposited the $300.00. Further, she acknowledged that she did not pay interest on either the $300.00 payment or the last month’s rent of $1,700.00.

Lynch testified that, prior to renting the Premises, she and Miele agreed that Miele would not be responsible for utility payments until the kitchen or wet bar was installed and that, after installation of the wet bar, the utilities would be split evenly between the two parties. She further stated that the utilities were not separately metered, but that the main house was heated by gas and the Premises was heated by electricity. Lynch testified that she also informed the Plaintiff at the time she moved in to the Premises on October 6, 2005, that the hot water heater was in need of repairs, which Lynch expected to be completed within a couple of days. She stated that the first repair person she contacted ordered a part, but was eventually unable to complete the repair. She further stated that the hot water heater was finally repaired by a second repair person on October 14, 2005. She was credible in her testimony.

Lynch further stated that the Plaintiff never informed her of any problem with the heat at the Premises. She testified that she tested the thermostat in the Premises and found no problems with the heat. Her testimony on this last issue was not credible.

Plaintiff’s Claim Pursuant to M.G.L. c. 186, s.14 and

Breach of the Implied Warranty of Habitability

Massachusetts Rule of Civil Procedure 54(c) states, in relevant part, “…every 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 its pleadings.” Mass.R.Civ.P. 54(c); Marine Midland Bank v. Herriott, 10 Mass.App.Ct. 743, 746 (1980).

The Plaintiff alleges that the Defendant failed to provide hot water and heat to the Premises for the duration of her short tenancy in October 2005. M.G.L. c. 186, s.14 provides in relevant part: “Any lessor or landlord…who is required by law or by the express or implied terms of any contract or lease or tenancy at

will to furnish water, hot water, heat, light, power, [or] gas…to any occupant of such building or part thereof, who willfully or intentionally fails to furnish such water, hot water, heat, light, power, [or] gas…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…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…”.

The implied warranty of habitability is the landlord’s promise that the premises will meet certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the tenant is in material violation of the minimum standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). A landlord must have actual or constructive notice of the condition creating the violation. McKenna v. Begin, 3 Mass.App.Ct. 168 (1975). Damages are assessed from the date the landlord had notice of the condition of disrepair. Berman & Sons v. Jefferson, 379 Mass. 196 (1979). The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises as warranted and the fair rental value of the premises with the defects. McKenna v. Begin, supra at 172. Based upon the facts of this case, the Court in this decision will also consider a breach by the Defendant of the implied warranty of habitability pursuant to Mass.R.Civ.P. 54(c).

The Court finds that the Defendant failed to furnish hot water and heat as required by 105 C.M.R. 410.190 and 410.201[3]. The Plaintiff testified and the Defendant acknowledged that there was no hot water at the Premises from October 6, 2005, the date the Plaintiff moved in to the Premises, through October 13, 2005, the date the Plaintiff vacated the Premises. Further, the Plaintiff testified and the Court finds that the heat for the Premises was also not in working order for the duration of her short tenancy in October 2005. The Court finds, however, that the Defendant did not willfully or intentionally deprive the Plaintiff of hot water and heat in the Premises pursuant to M.G.L. c. 186, s.14. The Defendant attempted to repair the hot water heater, but was unable to do so until after the Plaintiff vacated the Premises. Accordingly, the Court finds for the Defendant on the Plaintiff’s claim pursuant to M.G.L. c. 186, s.14.

The Court finds that the Defendant’s failure to provide heat and hot water materially breached the implied warranty of

habitability. The Court finds that the fair value of the Premises was decreased by one hundred per cent (100%) for the period of October 6, 2005 through October 13, 2005, the dates during which the Plaintiff resided at the Premises without heat and hot water.

The Court further finds that the Defendant constructively evicted the Plaintiff on October 13, 2005. Accordingly, the Court finds that the Plaintiff is not obligated to pay rent to the Defendant after October 13, 2005. Boston Housing Authority v. Hemingway, 363 Mass. 184, 189 (1973); see Brown v. Cresent Realty, et al., Boston Housing Court Docket No. 94-SC-00459 (September 30, 1997)(Winik, J.). The Plaintiff is therefore entitled to the return of all rent paid for the period of October 6, 2005 through November 30, 2005, in the amount of $3,400.00.

Plaintiff’s Security Deposit Claim

The Plaintiff asserts that the Defendant collected a security deposit in the amount of $300.00. Plaintiff’s Exhibit 1. M.G.L. c. 186, s.15(B)(1)(b) provides, in pertinent part: “At or prior to the commencement of any tenancy, no lessor may require a tenant or prospective tenant to pay any amount in excess of the following: (i) rent for the first full month of occupancy; and,(ii) rent for the last full month of occupancy calculated at the same rate as the first month; and,(iii) a security deposit equal to the first month’s rent…; and,(iv) the purchase and installation cost for a key and lock.”

M.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.”.

M.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…”

M.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.”

M.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.”

M.G.L. c. 186 s.15B(4) provides that 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 validly 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: (i) any unpaid rent which has not been validly withheld or deducted…(ii)an unpaid increase in real estate taxes which the tenant is obligated to pay…and (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…”.

M.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 “(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 the termination of the tenancy.”

The Court finds that the Defendant was only entitled to collect first and last month’s rent, in addition to a security deposit equal to one month’s rent. M.G.L. c. 186, s.15B(1)(b). The Court finds that the $300.00 payment to the Defendant was a security deposit within the meaning of M.G.L. c. 186, s.15B, rather than a so-called nuisance fee for the Plaintiff’s dogs as claimed by the Defendant. Further, the Court finds that the Defendant violated additional provisions of M.G.L. c. 186, s.15B as to the accounting of the Plaintiff’s security deposit. The Defendant admits and the Court finds that she failed to provide the Plaintiff with a receipt for the security deposit at the commencement of the tenancy, in violation of M.G.L. c. 186, s.15B(2)(b). The Defendant admits and the Court finds that she failed to provide the Plaintiff with a Statement of Conditions for the apartment, as required by M.G.L. c. 186, s.15B(2)(c). Further, the Court finds that the Defendant failed to place the security deposit in an escrow account

separate from her own personal account, in violation of M.G.L. c. 186, s.15B(3)(a). The Court finds that the Defendant failed to pay annual interest on the Plaintiff’s security deposit, as required by M.G.L. c. 186, s.15B(3)(b). The Court also finds that the Defendant failed to return the security deposit despite demand by the Plaintiff as evidenced by a letter dated January 2, 2006 and addressed to the Defendant’s former attorney. Plaintiff’s Exhibit 5. Cf. Palmi v. Metro. Prop. & Cas. Ins. Co., 12 Mass. L. Rep. 464 (Mass. Super. 2000)(demand letter served on defendant’s attorney provides adequate notice of the demand to the defendant).

M.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.” Pursuant to M.G.L. c. 186, s.15B(7), the Court finds the Plaintiff is entitled to treble damages due to the Defendant’s violation of M.G.L. c. 186, s.15B(6)(a) and (e), along with attorney’s fees and costs. The Court finds the Plaintiff is entitled to damages due to the failure to hold the security deposit in a separate escrow account and to return the security deposit on demand, calculated as follows: $300.00, trebled to $900.00. The Plaintiff is further entitled to $20.96 in damages for interest owed on the security deposit ($.04/day[4] x 524 days[5] = $20.96). The Court finds that the Defendant is further entitled to reasonable attorney’s fees and costs, pursuant to M.G.L. c. 186, s.15B(7).

Within ten (10) days after the date that judgment enters, the Plaintiff 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). After hearing, the Court shall award reasonable attorney’s fees and costs, nunc pro tunc.

The Plaintiff’s Last Month’s Rent Claim

The Plaintiff asserts that the Defendant collected last month’s rent in the amount of $1,700.00. Plaintiff’s Exhibit 2. M.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.

“If the lessor fails to pay any interest to which the tenant is then entitled within thirty days after the termination of the tenancy, the tenant upon proof of the same in an action against the lessor shall be awarded damages in an amount equal to three times the amount of interest to which the tenant is entitled, together with court costs and reasonable attorneys fees.”

The Court finds that, from the testimony of both parties, the Defendant continues to retain the Plaintiff’s last month’s rent. The Court also finds that the Defendant violated provisions of M.G.L. c. 186, s.15B related to the collection of last month’s rent. The Defendant acknowledges and the Court finds that the Defendant failed to provide the Plaintiff with a receipt for the last month’s rent at the inception of the tenancy, in violation of M.G.L. c. 186, s.15B(2)(a). Further, the Defendant admits and the Court finds that the Defendant failed to pay any interest on the Plaintiff’s last month’s rent, as required by M.G.L. c. 186, s.15B(2)(a). Pursuant to M.G.L. c. 186, s.15B(2)(a), the Court finds the Plaintiff is entitled to damages in the amount of $120.52, trebled to $361.56, for interest owed on the last month’s rent ($.23/day[6] x 524 days[7] = $120.52). The Court also finds the Plaintiff is entitled to reasonable attorney’s fees and costs, pursuant to M.G.L. c. 186, s.15B(2)(a).

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 the Defendant’s breach of the implied warranty of habitability and constructive eviction in the amount of $3,400.00, plus costs.

2. Judgment enter for the Defendant on the Plaintiff’s claim for breach of the covenant of quiet enjoyment pursuant to M.G.L. c. 186, s.14.

3. Judgment enter for the Plaintiff for Defendant’s failure to deposit the security deposit and return the security deposit to the Plaintiff upon demand pursuant to M.G.L. c. 186, s.15B(7), in the amount of $900.00 (as trebled, $300.00 x 3), plus reasonable attorney’s fees and costs.

4. Judgment enter for the Plaintiff on her claim for interest on the security deposit in the amount of $20.96, pursuant to M.G.L. c. 186, s.15B(3)(b), plus reasonable attorney’s fees and costs.

5. Judgment enter for the Plaintiff on her claim for interest on the last month’s rent in the amount of $120.52, trebled to $361.56 pursuant to M.G.L. c. 186, s.15B(2)(a), plus reasonable attorney’s fees and costs.

6. Within ten (10) days of the date that judgment enters, the Plaintiff 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.

7. The foregoing Orders for Judgment Paragraphs 1 through 6 result in a net judgment for the Plaintiff in the amount of $4,682.52, plus costs and reasonable attorney’s fees.

8. Execution to issue thirty (30) days from the date that judgment enters.

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[1] The advertisement described the property as: “1500 sq. ft., village location, 3 rooms, 2 stories, master suite with skylights, jacuzzi, and deck. Heat and utilities not included. Acre yard. $1700/mo. Pets possible. No smokers, credit check….” Renovated Barn for Rent, Classifieds, Duxbury Clipper, Oct. 5, 2005.

[2] Plaintiff’s Exhibit 4 reads as follows: “1st mth – 1700. Last mth -1700. $300. Kitchen coming, till then no utilities; 2 mths notice.” It appears to be signed by both parties.

[3] 105 C.M.R. 410.190 states, in pertinent part: “The owner shall provide and maintain in good operating condition the facilities capable of heating water. The owner shall also provide the hot water for use at a temperature of not less than 110?F (43?C) and in a quantity and pressure sufficient to satisfy the ordinary use of all plumbing fixtures which normally need hot water for their proper use and function, unless and to the extent the occupant is required to provide fuel for the operation of the facilities under a written letting agreement.”

105 C.M.R. 410.201 states, in pertinent part: “The owner shall provide heat in every habitable room and every room containing a toilet, shower or bathtub, 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, in each year except and to the extent the occupant is required to provide the fuel under a written letting agreement.”

[4] $300.00 (security deposit) x 5% = $15.00 ? 365 = $.04/day.

[5] The period between October 6, 2005 and March 13, 2007, consists of 524 days.

[6] $1,700.00 (last month’s rent) x 5% = $85.00 ? 365 = $.23/day.

[7] The period between October 6, 2005 and March 13, 2007 consists of 524 days.

End Of Decision

HOUSING COURT

Unicorn Realty Trust, William J. Murphy, Jr., and Joseph McDonnell, Trustees of Unicorn Realty Trust; and William J. Murphy, Jr., Trustee of 239 Washington Street Trust PLAINTIFFS v.

Timothy Lushinsky DEFENDANT

SOUTHEASTERN DIVISION

Docket # 04-CV-01148

Parties: Unicorn Realty Trust, William J. Murphy, Jr., and Joseph McDonnell, Trustees of Unicorn Realty Trust; and William J. Murphy, Jr., Trustee of 239 Washington Street Trust PLAINTIFFS v.

Timothy Lushinsky DEFENDANT

Judge: WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: January 22, 2007

MEMORANDUM OF DECISION ON PLAINTIFFS’ MOTION FOR INTEREST, COSTS, AND ATTORNEY’S FEES

The Plaintiff[1] filed this Motion for Entry of Amended Final Judgment seeking an award of costs from Defendant Timothy Lushinsky (‘Lushinsky’) pursuant to Mass.R.Civ.P. 54(d). The Defendant did not file an opposition.

The Defendant formerly resided in Cabin E (the ‘Premises’) at Norwell Cottages and Campsites, located at 239 Washington Street, Norwell, MA, owned and managed by the Plaintiff. This action was initiated by the Plaintiff in the small claims division of the Hingham District Court, seeking back rent from the Defendant in the amount of $750.00. On August 26, 2004, the Defendant transferred the action to this Court and asserted numerous counterclaims, including breach of the implied warranty of habitability, breach of the covenant of quiet enjoyment pursuant to M.G.L. c. 186, s.14, and violation of M.G.L. c. 93A. In his Amended Answer and Counterclaims, the Defendant, with the assistance of counsel,

incorporated the above claims and further asserted a claim for a security deposit violation under M.G.L. c. 186, s.15B.

Both parties participated in extensive discovery, including interrogatories and depositions. The parties filed cross-motions for Summary Judgment in December of 2005. This Court denied both motions on March 16, 2006. See Memorandum of Decision on Plaintiff’s and Defendant’s Motions for Summary Judgment, (Edwards, J.). In the Court’s March 16, 2006 decision, the Court found that genuine issues of material fact existed as to the Defendant’s counterclaims and therefore denied the parties’ cross-motions for Summary Judgment. By agreement of the parties, trial was scheduled to begin August 7, 2006, but the Defendant failed to appear on the date of trial. The Court subsequently entered a default judgment against the Defendant as to the Plaintiff’s claims, and his counterclaims were dismissed.

Following the entry of default judgment against the Defendant, the Plaintiff filed a Motion for Interest, Costs, and Attorney’s Fees pursuant to M.G.L. c. 231, s.6F. This Court, in its November 2, 2006 Memorandum of Decision, denied said motion, finding that not all or substantially all of the Defendant’s claims or defenses were wholly insubstantial, frivolous, and brought in bad faith. The Plaintiff has now filed a Motion for Entry of Amended Final Judgment seeking an award of costs pursuant to Mass.R.Civ.P. 54(d) in the amount of $1,233.69, inclusive of filing fees. Mass.R.Civ.P. 54(d) provides, in relevant part: ‘…costs shall be allowed as of course to the prevailing party unless the court otherwise directs…’.

The Plaintiff filed its Motion for Entry of Amended Final Judgment on November 20, 2006, more than ten days after November 2, 2006, the date on which judgment entered on the Plaintiff’s original motion. Accordingly, the Court must treat the Plaintiff’s Motion for Entry of Amended Final Judgment as a Motion for Relief from Judgment pursuant to Mass.R.Civ.P. 60(b), rather than a Motion to Alter or Amend a Judgment pursuant to Mass.R.Civ.P. 59(e). See Mass.R.Civ.P. 59(e), Reporter’s Notes.

A Court may grant a Motion for Relief from Judgment for a number of reasons, including ‘mistake, inadvertence, surprise, or excusable neglect…’. Mass.R.Civ.P. 60(b)(1). The resolution of a Motion for Relief from Judgment is almost entirely within the discretion of the trial judge. Wojcicki v. Caragher, 447 Mass. 200, 209 (2006).

The Court finds that its November 2, 2006 Memorandum of Decision failed to properly award costs to the Plaintiff pursuant to Mass.R.Civ.P. 54(d). The Court further finds that this omission constitutes mistake or inadvertence within the meaning of Mass.R.Civ.P. 60(b)(1). Accordingly, the Court ALLOWS the Plaintiff’s Motion for Entry of Amended Judgment, and awards costs to the Plaintiff in the amount of $1,233.69, plus interest, nunc pro tunc to November 2, 2006.

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[1] Also included as Plaintiffs are William J. Murphy, Jr. and

Joseph McDonnell, Trustees of Unicorn Realty Trust and William J. Murphy, Jr., Trustee of 239 Washington Street Trust. For purposes of this memorandum, the Court shall refer to the Plaintiffs collectively as ‘Plaintiff’.

End Of Decision

HOUSING COURT

Unicorn Realty Trust, William J. Murphy, Jr., and Joseph McDonnell, Trustees of Unicorn Realty Trust; and William J. Murphy, Jr., Trustee of 239 Washington Street Trust PLAINTIFFS v. Scott Coy and Michelle Forrey, DEFENDANTS

SOUTHEASTERN DIVISION

Docket # 04-CV-01149

Parties: Unicorn Realty Trust, William J. Murphy, Jr., and Joseph McDonnell, Trustees of Unicorn Realty Trust; and William J. Murphy, Jr., Trustee of 239 Washington Street Trust PLAINTIFFS v. Scott Coy and Michelle Forrey, DEFENDANTS

Judge: WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: January 22, 2007

MEMORANDUM OF DECISION ON PLAINTIFFS’MOTION FOR ENTRY OF AMENDED FINAL JUDGMENT

The Plaintiff[1] filed this Motion for Entry of Amended Final Judgment seeking an award of costs from Defendants Scott Coy and Michelle Forrey (‘Coy’ and ‘Forrey’) pursuant to Mass.R.Civ.P. 54(d). The Defendants did not file an opposition.

The Defendants formerly resided in Cabin I (the ‘Premises’) at Norwell Cottages and Campsites, located at 239 Washington Street, Norwell, MA, owned and managed by the Plaintiff. This action was initiated by the Plaintiff in the small claims division of the Hingham District Court, seeking back rent from the Defendants in the amount of $1,050.00. On August 27, 2004, the Defendants transferred the action to this Court and asserted numerous counterclaims, including breach of the implied warranty of habitability, breach of the covenant of quiet enjoyment pursuant to M.G.L. c. 186, s.14, and violation of M.G.L. c. 93A. In their Amended Answer and Counterclaims, the Defendants, with the assistance of counsel, incorporated the above claims and further asserted a claim for a security deposit violation under M.G.L. c. 186, s.15B.

Both parties participated in extensive discovery, including interrogatories and depositions. The parties filed cross-motions for Summary Judgment in December of 2005. This Court denied both motions on March 16, 2006. See Memorandum of Decision on Plaintiff’s and Defendant’s Motions for Summary Judgment, (Edwards, J.). In the Court’s March 16, 2006 decision, the Court found that genuine issues of material fact existed as to the Defendants’ counterclaims and therefore denied the parties’ cross-motions for Summary Judgment. By agreement of the parties, trial was scheduled to begin August 17, 2006, but the Defendants failed to appear on the date of the trial. The Court subsequently entered a default judgment against the Defendants as to the Plaintiff’s claims, and their counterclaims were dismissed.

Following the entry of default judgment against the Defendants, the Plaintiff filed a Motion for Interest, Costs, and

Attorney’s Fees pursuant to M.G.L. c. 231, s.6F. This Court, in its November 2, 2006 Memorandum of Decision, denied said motion, finding that not all or substantially all of the Defendants’ claims or defenses were wholly insubstantial, frivolous, and brought in bad faith. The Plaintiff has now filed a Motion for Entry of Amended Final Judgment seeking an award of costs pursuant to Mass.R.Civ.P. 54(d) in the amount of $1,632.75, inclusive of filing fees. Mass.R.Civ.P. 54(d) provides, in relevant part: ‘…costs shall be allowed as of course to the prevailing party unless the court otherwise directs…’.

The Court finds that its November 2, 2006 Memorandum of Decision failed to properly award costs to the Plaintiff pursuant to Mass.R.Civ.P. 54(d). The Court further finds that this omission constitutes mistake or inadvertence within the meaning of Mass.R.Civ.P. 60(b)(1). Accordingly, the Court ALLOWS the Plaintiff’s Motion for Entry of Amended Judgment, and awards costs to the Plaintiff in the amount of $1,632.75, plus interest, nunc pro tunc to November 2, 2006.

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[1] Also included as Plaintiffs are William J. Murphy, Jr. and Joseph McDonnell, Trustees of Unicorn Realty Trust and William J. Murphy, Jr., Trustee of 239 Washington Street Trust. For purposes of this memorandum, the Court shall refer to the Plaintiffs collectively as ‘Plaintiff’.

End Of Decision

HOUSING COURT

Stevie A. Weathers and Mary Mitchell, PLAINTIFFS v. Shakor Daley and Tamica Smith, DEFENDANTS

SOUTHEASTERN DIVISION

Docket # 06-SP-06103

Parties: Stevie A. Weathers and Mary Mitchell, PLAINTIFFS v. Shakor Daley and Tamica Smith, DEFENDANTS

Judge: WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: March 8, 2007

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

The Plaintiffs[1] brought this summary process action seeking possession and damages for unpaid rent from the Defendants. The Defendants did not file an Answer, but did present counterclaims at trial on December 27, 2006 and January 5, 2007. Both parties appeared pro se.

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

Plaintiff Stevie A. Weathers (‘Weathers’) testified that he and Plaintiff Mary Mitchell (‘Mitchell’) own a two-family building located at 75 Herrod Avenue in Brockton, MA (‘the Building’). He testified that Defendant Shakor Daley (‘Daley’) moved in to Apartment 1 (‘the Premises’) in mid-August 2006, and that Defendant Tamica Smith (‘Smith’) moved in to the Premises in late August 2006. He further stated that the monthly rent for the Premises is $1,000.00, due on or before the first of each month. There is no written lease or occupancy agreement between the parties. Weathers further testified that the Defendants have not paid rent for the period of October through December 2006, for unpaid rent in the aggregate of $3,000.00. Weathers was credible in his testimony.

The Plaintiffs served the Defendants with a Fourteen-Day Notice to Quit on November 8, 2006, alleging unpaid rent in the amount of $2,000.00. Plaintiff’s Exhibit 1. The Plaintiffs served the Defendants with a Summons and Complaint on November 28, 2006, with an Account Annexed of $2,000.00, representing unpaid rent for the months of October and November 2006 at the rate of $1,000.00 per month.

Defendant Tamica Smith testified that she believed the Defendants paid the Plaintiffs $500.00 in November 2006, but was unable to produce any documentation in support of her testimony.

A landlord has the right to possession pursuant to M.G.L. c. 239, s.1. The Court finds that the Plaintiffs have proven their prima facie case for possession and damages against the Defendants for unpaid rent in the amount of $3,000.00, plus costs, calculated at the rate of $1,000.00 per month for the months of October, November, and December 2006. The Defendants have presented affirmative defenses and counterclaims.

The Defendants’ Defenses and Counterclaims

M.G.L. c. 239, s.8A €1 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.’

The Defendants’ Defense to Possession Pursuant to M.G.L. c. 239, s.8A

Pursuant to M.G.L. c. 239, s.8A €2, where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to a defense to possession only if: (1) the landlord knew or should have known of the 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 were numerous defects at the Premises for the period of November 1, 2006 through January 5, 2007, of which the Plaintiffs were aware prior to service of the Notice to Quit. The Court has found that the Premises lacked gas for heat and hot water for the substantial portions of the period from November 1, 2006 through January 5, 2007. Further, the Court finds that there were persistent problems with interruption of electricity for the duration of that period. The Court finds that the Plaintiffs knew or should have known of the conditions at the Premises prior to the time the Defendants were first in arrears in their rent. The Plaintiffs did not allege that the Defendants caused the conditions at the Premises, nor did the Plaintiffs assert that the Defendants must vacate the Premises to allow the Plaintiffs to complete the repairs to the Premises. Accordingly, the Defendants are entitled to a defense to possession pursuant to M.G.L. c. 239, s.8A €2. See Jones v. Williams, Boston Housing Court Docket No. 99-SP-02490 (June 9, 1999)(Winik, J.).

The Defendants’ Implied Warranty of Habitability Counterclaim

The Defendants have alleged in their counterclaims that conditions at the Premises violated the State Sanitary Code. The warranty of habitability is the landlord’s promise that the premises will meet certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the tenant is in material violation of the minimum standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). A landlord must have actual or constructive notice of the condition creating the violation. McKenna v. Begin, 3 Mass.App.Ct. 168 (1975). Damages are assessed from the date the landlord had notice of the condition of disrepair. Berman & Sons v. Jefferson, 379 Mass. 196 (1979). The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises as warranted and the fair rental value of the premises with the defects. McKenna v. Begin, 3 Mass. App. Ct. at 172.

Defendant Tamica Smith testified that there were certain items in disrepair at the time she and co-Defendant Daley moved into the

Premises, including missing electrical outlet covers and missing ceiling fixtures. Smith further stated that a problem with the stove developed in September 2006, and that the heat and hot water stopped functioning in early November 2006. Smith testified that the circuit breakers would trip frequently, shutting off electricity to the Premises. She further stated that she did not have access to the basement, and, accordingly, would have to wait for one of the Plaintiffs to arrive and reset the circuit breakers. Smith identified photographs of the Premises taken by the Defendants in late October 2006, which depict the conditions at the Premises at that time. Defendants’ Exhibits A1-23.

Smith appeared before this Court on November 10, 2006, in case #06-CV-01181, in which she requested a temporary restraining order requiring the Plaintiffs to make repairs to the Premises. This Court (Edwards, J.) allowed Smith’s application for a temporary restraining order, but Smith stated that she did not serve the Plaintiffs with the restraining order, nor did she take any further action. Smith testified that she contacted the Brockton Board of Health (‘Board of Health’) on or about November 20, 2006 to report the conditions at the Premises. She was credible in her entire testimony.

Defendant Shakor Daley testified that she notified Weathers of the need for repairs to the Premises at various times throughout the tenancy. She further confirmed the lack of heat and hot water at the Premises. Daley stated that the rent included all utilities except for electricity, which was paid separately by the Defendants. She was credible in her testimony.

Mitch Weydt of the Board of Health testified that he had inspected the Premises and confirmed the lack of heat and hot water at the Premises. He further stated that the Defendants were using space heaters to heat the living area. His testimony was credible.

Plaintiff Stevie A. Weathers testified in rebuttal. He acknowledged one missing electrical outlet cover and missing ceiling light fixtures throughout the Premises, which the Court found credible. He further stated that the Defendants verbally agreed to pay for their utilities, but there is no written agreement between the parties transferring responsibility for utilities to the Defendants as required by the Code of Massachusetts Regulations.[2] Poncz v. Loftin, 34 Mass.App.Ct. 909, 910 (1993); Young v. Patukonis, 24 Mass.App.Ct. 907, 908-09 (1987). Consequently, the Court did not find him credible on this issue. Weathers testified that co-Plaintiff Mary Mitchell had been contacted by Bay State Gas concerning that company’s inability to access the gas meter at the Premises. Plaintiff’s Exhibit 2.

At the conclusion of the first day of the trial on December 27, 2006, the Court ordered the Plaintiffs to restore the gas supply to the Premises and to correct the problems with the circuit breakers. The Court also ordered a Court Housing Specialist to conduct an inspection of the Premises prior to the continuation of the trial on January 5, 2007, and to also provide the Court with a report on the status of the gas supply, heat, and hot water at the Premises. See Langley v. Jones, Boston Housing Court Docket No. 99-SP-01418 (May 13, 1999)(Winik, J); Connolly v. Boston Housing Authority, Boston Housing Court Docket No. 93-CV-01587 (May 10,

1994)(Smith, J.).

On January 4, 2007, Housing Specialist Chris Churchill conducted said inspection. In his report submitted to the Court, Churchill indicated that gas service had not been restored to the Premises and there was no heat or hot water. The report also states that the Defendants were using three space heaters to warm the Premises. Further, they were using a small hot plate to heat water. The report further noted the following conditions in need of repair: two electrical outlets missing covers; kitchen ceiling light fixtures missing light covers; water stains on the ceiling throughout the Premises; a portion of the kitchen in unfinished condition; a hole in the wall near the bedroom closest to the kitchen; and a lack of molding in the doorways leading from the kitchen to the remainder of the Premises.

At the continuation of the trial on January 5, 2007, both Defendants confirmed that following the first day of trial on December 27, 2006, the electricity had been shut off for portions of time for the period of December 28, 2006 through December 30, 2006. The Defendants stated that they did not have access to the basement and the circuit breakers, and were unable to reach the Plaintiffs to have them reset the circuit breakers and restore electricity to the Premises. The Defendants were credible in their testimony.

Plaintiff Stevie A. Weathers testified on January 5, 2007, that, although he had paid the outstanding balance on the gas bill, he was unable to restore the gas supply to the Premises prior to the continuation of the trial. He stated that he expected gas service to be restored to the Premises sometime between January 5, 2007 and January 8, 2007.

The Court finds that there were numerous defects at the Premises for the period of November 1, 2006 through January 5, 2007, including: two electrical outlets missing covers; kitchen ceiling light fixtures missing light covers; water stains on the ceiling throughout the Premises; a portion of the kitchen in unfinished condition; a hole in the wall near the bedroom closest to the kitchen; and a lack of molding in the doorways leading from the kitchen to the remainder of the Premises. The Court further finds that the Premises lacked a supply of gas for heat and hot water for substantial portions of the period from November 1, 2006 through January 5, 2007, including the pendency of the actual trial. Further, the Court finds that there were also persistent problems with the electricity during the same period of time. Accordingly, the Court finds that the conditions at the Premises in the aggregate violated the implied warranty of habitability. The Defendants are entitled to a rent abatement in the amount of $1,519.32, or seventy per cent (70%), calculated as follows: $32.88/day[3] x 70% = $23.02 x 66 days[4] = $1,519.32.

The Defendants’ Quiet Enjoyment Counterclaim

The Defendants have alleged that the Plaintiffs breached the covenant of quiet enjoyment. M.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…’ A landlord violates M.G.L. c. 186, s.14 where he had notice, or reason to know of the serious condition in the tenant’s apartment, and failed to take appropriate corrective measures. Al Ziab v. Mourgis, 424 Mass. 847, 850-851 (1997); Cruz Management Co., Inc. v. Thomas, 417 Mass. 782 (1994).

In calculating the damages due the Defendants for Plaintiffs’ breach of the covenant of quiet enjoyment, the Court must under M.G.L. c. 186, s.14 compare the Defendants’ actual damages versus the statutory damages permitted under the statute.[5] The Defendants presented no evidence of actual damages. Therefore, the Defendants are entitled to statutory damages of $3,000.00, computed by trebling the monthly rent of $1,000.00.

The Plaintiffs shall complete all repairs to the electrical system, including fixture covers and outlet covers, in the Premises within twenty (20) days of the date judgment enters. Further, the Plaintiffs shall provide gas for heat and hot water to the Premises at their sole expense. The Plaintiffs shall also make repairs to the ceiling, molding, holes in the bedroom wall and ceiling, and to the unfinished areas of the Premises. All work is to be done with appropriate permits, if necessary, at the Plaintiffs’ sole expense and shall be completed in a good and workmanlike manner as set forth herein. Abrams v. Factory Mutual Liability Ins. Co., 298 Mass. 141, 143 (1937); Mass. Highway Dept. v. Walsh Construction Co., Mass. Super. Ct. No. 015746-BLS (2003). The Defendants shall permit the Plaintiffs and/or their agents

access to the Premises to complete the repairs upon twenty-four (24) hours written notice during regular business hours (9:00 a.m. to 6:00 p.m.) Monday through Saturday. The Plaintiffs shall at all times provide the Defendants with access to the basement area of the Building and the circuit breakers, and shall instruct the Defendants on the proper operation of the circuit breakers.

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 $215.40, totaling $3,215.40.

2. Judgment enter for the Defendants for possession pursuant to M.G.L. c. 239, s.8A, €2.

3. Judgment enter for the Defendants on their counterclaim for the Plaintiffs’ breach of quiet enjoyment pursuant to M.G.L. c. 186, s.14 in the amount of $3,000.00.

4. Judgment enter for the Defendants on their counterclaim for breach of the implied warranty of habitability; however, no duplicative damages are awarded.

5. The Plaintiffs shall complete all repairs to the electrical system, including light fixtures and outlet covers, in the Premises within twenty (20) days of the date judgment enters. Further, the Plaintiffs shall provide gas for heat and hot water to the Premises at their sole expense. The Plaintiffs shall also make repairs to the ceiling, molding, holes in the bedroom wall and ceiling, and unfinished areas of the Premises. All work is to be done with appropriate permits, if necessary, at the Plaintiffs’ sole expense and shall be completed in a good and workmanlike manner as set forth herein. Abrams v. Factory Mutual Liability Ins. Co., 298 Mass. 141, 143 (1937); Mass. Highway Dept. v. Walsh Construction Co., Mass. Super. Ct. No. 015746-BLS (2003). The Defendants shall permit the Plaintiffs and/or their agents access to the Premises to complete the repairs upon twenty-four (24) hours written notice during regular business hours (9:00 a.m. to 6:00 p.m.) Monday through Saturday. The Plaintiffs shall at all times provide the Defendants with access to the basement area of the Building and the circuit breakers, and shall instruct the Defendants on the proper operation of the circuit breakers.

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

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[1] The Court allowed co-Plaintiff Weathers’ motion to add Mary Mitchell, a co-owner of the property, as a Plaintiff on January 8, 2007.

[2] 105 C.M.R. s.410.190 provides, in relevant part: ‘The owner shall also provide hot water for use at a temperature of not less than 110? F (43 ? C) and in a quantity and pressure sufficient

to satisfy the ordinary use of all plumbing fixtures which normally need hot water for their proper use and function, unless and to the extent the occupant is required to provide fuel for the operation of the facilities under a written letting agreement.’

105 C.M.R. s.410.201 provides, in relevant part: ‘The owner shall provide heat in every habitable room and every room containing a toilet, shower, or bathtub…except and to the extent the occupant is required to provide the fuel under a written letting agreement.’

105 C.M.R. s.410.354 provides, in relevant part: ‘The owner shall provide the electricity and gas used in each dwelling unit unless…a written letting agreement provides for payment by the occupant.’

[3] The per diem rental rate is calculated as follows: $1,000.00 x 12 months = $12,000.00 ? 365 = $32.88/day.

[4] The period of November 1, 2006 through January 5, 2007 consists of 66 days.

[5] M.G.L. c. 186, s.14 in relevant part: ‘Any person who commits any act in violation of this section shall also 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.’

End Of Decision

HOUSING COURT

CARLOS CASTILLO, Plaintiff VS. TIESHA TURNER, Defendant

Docket # SUMMARY PROCESS 07-H84-SP-004119

Parties: CARLOS CASTILLO, Plaintiff VS. TIESHA TURNER, Defendant

Judge: /s/WILBUR P. EDWARDS JR.

ASSOCIATE JUSTICE

Date: November 16, 2007

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

This is a summary process action in which the Plaintiff is seeking to recover possession of the premises from the Defendant as well as $2,150.58 in unpaid rent. On the day of trial, the Defendant filed a written Answer with counterclaims for breach of the implied warranty of habitability, violation of the security deposit law and breach of quiet enjoyment, which was allowed without objection. Trial was held on November 1, 2007. Both parties appeared pro se.

Based upon the testimony and other evidence presented at trial and the reasonable inferences drawn therefrom, in light of the governing law, the Court finds as follows:

The Plaintiff owns the building, a two-family home consisting of two apartments, at 81 Coleman Street in the Dorchester neighborhood of Boston, MA. (the “Building”). The Defendant has resided in two different rooms as a tenant of the Plaintiff and currently lives in Room 2C of the Building (“the Premises”). The Defendant’s weekly rent for the Premises is $125.00 due on Friday of each week. The current tenancy commenced on August 3, 2007.

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On September 24, 2007, the Plaintiff served the Defendant with a legally sufficient 14-day notice to quit for non-payment of rent. Exhibit 1. On October 13, 2007, the Plaintiff served the Summons and Complaint with an Account Annexed in the amount of $2,380.58, which included a total rent arrearage of $2,150.58 ($0.58 for June 2007; $650.00 for July 2007; $500.00 per month for the months of August through October 2007).

At trial, there was testimony from both the Plaintiff and the Defendant that the rental amount demanded for the period of June and July 2007 in the amount of $650.58 represented rent for Room 2A in the Building and not Room 2C. There was also testimony from both parties that there were issues with conditions in Room 2A during a portion of the period the room was occupied by the Defendant. See Exhibit S. Accordingly, the Court hereby dismisses without prejudice the rent claim by the Plaintiff against the Defendant to the degree it seeks damages for the period prior to August 3, 2007. The Court further hereby dismiss without prejudice the Defendant’s counterclaims for breach of the implied warranty of habitability and breach of quiet enjoyment to the degree that they seek damages arising out of the conditions in the Building prior to August 3, 2007.

The Plaintiff has proven his prima facie case against the Defendant for possession of the Premises and damages for unpaid rent in the amount of $1,500.00 for the premises for the period of August though October 2007.

The Defendant testified to the presence of adverse conditions in the Premises, including nails protruding from the floor, holes in the floor, a missing fire extinguisher, and a broken radiator. She submitted into evidence as Exhibit 3 an emergency violation from the City of Boston’s Inspectional Services Department (“ISD”). Within the violation, dated October 17, 2007, the Plaintiff as owner was ordered to repair a non-

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functioning smoke detector and a blocked egress caused by the refrigerator being in front of the windows leading to the fire escape within 24 hours. The Plaintiff testified that he moved the refrigerator on October 27, 2007. There was no testimony as to the

repair of the smoke detector.

The Defendant submitted into evidence a separate violation notice from ISD, Exhibit 4, also dated October 17, 2007. Within this notice, the Plaintiff as owner was ordered to make the following repairs within 30 days: “(1) Front Common Hall – Ceiling Light 2nd floor is not working (repair); (2) Kitchen Ceiling – water stains with loose and peeling paint/plaster over the window area (investigate the source of the water and secure/restore the ceiling back to original condition); (3) Kitchen – evidence of rodents – droppings in the base cabinets and in the sofa (seal all possible points of entry and exterminate to eliminate/clean and sanitize all affected areas); (4) Upstairs Bedroom – has rodent holes in the closet with droppings (seal all holes in baseboards, around door frames, etc. and clean and sanitize all affected areas; (5) Upstairs Bedroom – Hardwood floor – has unsecured nails (secure all the nails below the surface of the wood). The Plaintiff did not testify as to the status of these repairs.

Breach of the Implied Warranty of Habitability. The implied warranty of habitability is the landlord’s promise that the premises will meet certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the tenant is in material violation of the minium standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199-200 (1973). A landlord must have actual or constructive notice of the condition creating the violation. McKenna v. Begin, 3 Mass.App.Ct. 168, 171-172 (1975). Damages are assessed from the date the landlord

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had notice of the condition of disrepair. Berman & Sons v. Jefferson, 379 Mass. 196, 203 (1979). The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises as warranted and the fair rental value of the premises with the defects. McKenna, 3 Mass.App.Ct. at 172.

The Court finds that due to the conditions at the premises testified to by the defendant and documented by ISD, the Plaintiff committed a material breach of the implied warranty of habitability during the Defendant’s tenancy and occupancy at the premises. The aggregate of the conditions testified to by the Defendant and documented by ISD created hazardous and unsanitary conditions that adversely affected the health and safety of the Defendant. The Court finds that the Plaintiff had actual or constructive notice of these adverse conditions on October 17, 2007.

The Court determines that the fair rental value of the premises in good repair was $125.00 per week for all times relevant to the Defendant’s breach of the implied warranty of habitability counterclaim and finds that the fair rental value of the premises was reduced in the aggregate by 50% from October 17, 2007 through the date of trial (November 1, 2007). Therefore, the Court determines that the Defendant is entitled to a rent abatement as

follows: $17.86[1] per day x 50% = $8.93 x 16 days = $142.88 (for the period of October 17, 2007 through November 1, 2007).

Accordingly, the amount due the Defendant on her counterclaim for breach of the implied warranty of habitability is $142.88.

The Defendant’s other counterclaims. The Court finds that the Defendant failed to prove that the Plaintiff breached the statutory covenant of quiet enjoyment. Further, there was no testimonial or other evidence produced at trial concerning the payment of a

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[1] The per diem amount is calculated as follows: $125.00 / 7 = $17.86.

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security deposit. Accordingly, judgment shall enter in favor of the Plaintiff on the Defendant’s counterclaim for violation of the security deposit law and her counterclaim for breach of quiet enjoyment to the degree it seeks damages arising out of the conditions in the Building from August 3, 2007 through the date of trial.

G.L. c. 239, s. 8A. 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 a defense to possession 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 condition cannot be remedied unless the premises are vacated.

The Court finds that the Plaintiff did not have reason to know of the adverse conditions at the premises until after the Defendant was in arrears in her rent. Accordingly, the Defendant is not entitled to possession of the premises under G.L. c. 239, s. 8A.

ORDER FOR JUDGMENT

In light of the evidence produced at trial, reasonable inferences drawn therefrom, and applicable law, the Court ORDERS that judgment shall enter as follows:

1. Judgment on the Plaintiff’s claim for possession of the premises shall enter in favor of the Plaintiff;

2. Judgment on the Plaintiff’s claim for unpaid rent shall enter in favor of the

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Plaintiff in the amount of $1,500.00, which is to be set

off against the $142.88 in damages awarded to the Defendant on her counterclaim for breach of the implied warranty of habitability, resulting in a net award of $1,357. 12 in damages to the Plaintiff;

3. Judgment on the Defendant’s counterclaim for breach of the implied warranty shall enter in favor of the Defendant.

4. Judgment on the Defendant’s counterclaim for breach of quiet enjoyment shall enter in favor of the Plaintiff.

5. Judgment on the Defendant’s counterclaim for violation of the security deposit shall enter in favor of the Plaintiff.

6. Plaintiff’s execution for possession and damages shall issue ten (10) days from the date that judgment enters.

cc: Carlos Castillo

Tiesha Turner

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End Of Decision

HOUSING COURT

The Boulders/Barkan Management Co. PLAINTIFF v. Chris and Holly Mellman DEFENDANTS

Docket # Docket No. 06-SP-05615

Parties: The Boulders/Barkan Management Co. PLAINTIFF v. Chris and Holly Mellman DEFENDANTS

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: December 26, 2007

MEMORANDUM OF DECISION ON DEFENDANTS’ MOTION FOR NEW TRIAL

This summary process action was initiated by the Plaintiff for non-payment of rent and possession. The Defendants, along with their children, resided at 1E Raintree Circle in Brockton, MA (the “Premises”), which is owned and managed by the Plaintiff, the Boulders/Barkan Management Co. (“Boulders”). In their Answer and Counterclaims, the Defendants stated that they withheld their rent due to the presence of mold in the Premises, and further alleged breach of the implied warranty of habitability, breach of the covenant of quiet enjoyment, violation of M.G.L. c. 93A, breach of the lease[1], and retaliation. The Defendants accordingly sought compensatory and punitive damages from the Plaintiff.

The parties participated in a three-day jury trial which commenced on June 11 and ended June 13, 2007. The jury returned a verdict for the Plaintiff on each of the Defendants’ remaining counterclaims.[2] The Court has concurrently with this motion issued its decision on the Defendants’ M.G.L. c. 93A claim and has, with that Memorandum of Decision, awarded possession and unpaid rent to the Plaintiff.

On June 22, 2007, the Defendants filed with this Court their Motion for New Trial pursuant to Mass.R.Civ.P. 59(a).[3] The Defendants contend that the jury’s verdict was “against the weight of the evidence” with regard to their claim for breach of the implied warranty of habitability. Tenants’ Motion for a New Trial. Specifically, the Defendants claim that the jury could not have reasonably determined that the presence of mold did not constitute a substantial State Sanitary Code violation, given the evidence presented during the course of the trial. The Plaintiff opposes the Defendants’ Motion for New Trial, contending that the jury’s conclusion was “reasonable and logical…”. Landlord’s Opposition to Tenants’ Motion for a New Trial.

Mass.R.Civ.P. 59(a) provides, in pertinent part: “A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the Commonwealth…” A new trial may be granted whenever the judge is “satisfied that, by reason of some accident, mistake, or misfortune in the conduct of the trial, a new trial is necessary to prevent a failure of justice.” Greene v. Farlow, 138 Mass. 146, 147 (1884).

The motion for new trial is directed to the discretion of the trial judge. Kirby v. Morales, 50 Mass. App. Ct. 786, 795 (2001); Freeman v. Wood, 379 Mass. 777, 785 (1980). A proper exercise of discretion must “avoid idiosyncratic choice brought on by arbitrary determination, capricious disposition, or whimsical thinking.” In Re Iris, 427 Mass. 582, 588(1998)(allowance or denial of motion for new trial); Davis v. Boston Elevated Railway Co., 235 Mass. 482, 496 (1920).

For the reasons set forth below, the Court denies the Defendants’ Motion for New Trial. [4] The essential portions of the Defendants’ implied warranty of habitability and quiet enjoyment counterclaims involved similar allegations, including the presence of mold in the Premises, damage to the Defendants’ health and to their personal property, coupled with the Plaintiff’s failure to timely cure the conditions caused by the mold.

There was credible testimony by the Defendant’s expert witness, Debra Jane Gordon (“Gordon”), a certified microbiologist, who testified that she had conducted a survey of the Defendants’ apartment to detect the presence and cause of certain types of mold spores. She testified that she discovered mold on all four walls of the master bedroom and in a computer room and adjacent closet. Gordon also testified to visible mold on carpeting and in a forced hot air vent next to a closet. She further testified that she had no medical training or any construction licenses. There was credible testimony from Defendant Chris Mellman, a union electrician, who described the presence of mold and mildew in the apartment that he believed was caused by the intrusion of water from three sources, including the exterior of the Premises, an air conditioner, and from an improperly vented dryer vent. Mr. Mellman further stated that he notified the Plaintiff of the problems with the mold in the Premises. He testified that he suffered from bloody noses and wheezing while he was in the Premises and that he had consulted a Dr. Johnson concerning these conditions. He also testified that he smoked one to two packs of cigarettes a day.

Co-Defendant Holly Mellman testified credibly as to her disabilities, including fibromyalgia, rheumatoid arthritis, and arthritis of the spine. She testified that she had been a Certified Nursing Assistant but currently was not working and frequently remained at the Premises. She confirmed the problems with mold and water in the apartment as described by her husband Chris, and further described mold damage done to personal property, including photos and family heirlooms, stored in a closet. She further confirmed that she had also contacted the same Dr. Johnson as her husband, and that the doctor had performed various medical tests on her breathing capacity and reactions to the types of mold found at the Premises. She also testified that she had smoked approximately one to two packs of cigarettes a day during portions of the time she occupied the Premises.

The Defendants presented a credible video deposition from a Thomas Johnson, M.D., an allergy and immunology specialist who testified that he had a practice in which he treated patients who had been exposed to mold. He confirmed that Defendant Holly Mellman had been referred to him for examination and that he had ordered various tests for her. He stated that he determined that she suffered from bloody noses, headaches, discharge from her nose,

and labored breathing, which he attributed Mrs. Mellman’s problems to the leaking water and the presence of mold in the apartment. Dr. Johnson further stated that he didn’t explore Holly Mellman’s existing medical conditions and hadn’t asked her how long she had been a smoker. He then stated that smoking did not typically cause asthma but that it could aggravate an asthmatic condition. Dr. Johnson further testified that he had examined Chris Mellman after Mr. Mellman had complained of sneezing, phlegm, coughing, and a lost sense of smell. He confirmed that Mr. Mellman had advised him that he smoked a pack and a half of cigarettes a day but that he did not think that Mr. Mellman has missed any work as a result of his conditions. Dr. Johnson testified that he had never been ruled an expert in a court case and had only previously testified by video deposition.

The Plaintiff presented testimony from a Scott Herzog, a Certified Industrial Hygienist with a company known as OccuHealth. Mr. Herzog testified that he conducted tests in the building that includes the Defendants’ Premises. He stated credibly that he reviewed a report produced by the Defendants’ expert, Debra Gordon, and testified that he agreed with some aspects of the report, including Gordon’s conclusions as to the presence and causes of mold in the Premises, but disagreed with other portions of Gordon’s report. He testified that there was a problem with a filter on an air conditioner that may have caused a mold issue. He stated that he had been previously qualified as an expert to testify in other mold related cases.

The Plaintiff’s property manager, a Knija Dingle, testified credibly that she had been contacted by the Defendants sometime in February of 2006 concerning the presence of mold in their apartment. As a result of that complaint, she contacted a mold testing company (Mold

Tech) and a cleaning company (ServPro) to perform mold remediation in the Premises. She stated that ServPro decontaminated the Mellmans’ personal property in May of 2006 so that they could be moved to another unit in the residential development. She indicated in her testimony that the Plaintiff determined that it would be easier to move the Defendants to another unit rather than try to clean or repair the Premises. She also testified that the first time she was notified of the damage to the Defendants’ personal property was in early May 2006 and that the Defendants did not request a reimbursement for that damage at that time. She testified that she had reviewed all of the Defendants’ complaints from April 2006 through the time of trial and that the Plaintiff had responded to the requests to move the Defendants into another unit.

Based upon the testimony cited above and the documentation allowed into evidence and reviewed by the jury, combined with the jury’s evaluation of the credibility of all the witnesses, the Court finds that the jury’s verdict in favor of the Plaintiff on the Defendants’ implied warranty of habitability and quiet enjoyment counterclaims was justified. There was credible testimony, acknowledged by the Plaintiff, that there was mold in the Defendants’ apartment. There was credible testimony, acknowledged by the Plaintiff, that there was damage to the

Defendants’ personal property. There was credible testimony that the Plaintiff cleaned the Defendants’ personal property. There was additional testimony that the Plaintiff relocated the Defendants as a result of the water intrusion and resulting mold problem. The Court finds, however, that there was little testimony, if any, as to causation and the damages allegedly suffered by the Defendants as a result of the presence of mold at the Premises. There was testimony as to the Defendants’ medical conditions, primarily Holly Mellman’s, but there was conflicting expert testimony as to the causal connection, if any, between the presence of the mold and Mrs. Mellman’s medical conditions and disabilities. The jury evaluated the testimony and evidence presented and decided in favor of the Plaintiff on both the implied warranty of habitability and quiet enjoyment counterclaims after a careful evaluation of all that was presented to them during the trial. The Court, therefore, DENIES the Defendants’ Motion for New Trial.

SO ORDERED.

cc: David Reservitz, Esq.

John S. Wessler, Esq.

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[1] After a hearing conducted on March 19, 2007, the Court dismissed the Defendants’ breach of the lease counterclaim.

[2] The jury did not decide the Defendants’ M.G.L. c. 93A counterclaim, as the Court retained said claim prior to the commencement of the trial.

[3] Mass.R.Civ.P. 59(b) provides: “A motion for a new trial shall be served not later than 10 days after the entry of judgment.” Mass.R.Civ.P. 5(d)(1) provides, in pertinent part: “Except as otherwise provided in Rule 5(d)(2), all papers after the complaint required to be served upon a party shall be filed with the court either before service or within a reasonable time thereafter. Such filing by a party’s attorney shall constitute a representation by him, subject to the obligations of Rule 11, that a copy of the paper has been or will be served upon each of the other parties as required by Rule 5(a). No further proof of service is required unless an adverse party raises a question of notice…”. The Court notes that, although the Defendants failed to provide this Court with proof of service of the Motion for New Trial, the Plaintiff has not raised a question of notice and, in fact, timely responded to the Defendants’ Motion for New Trial. Accordingly, the Court finds that service of the Motion for New Trial was adequate pursuant to Mass.R.Civ.P. 5.

[4] The parties at trial stipulated that the amount of rent due to the Plaintiff was $17,059.44.

End Of Decision

HOUSING COURT

The Boulders/Barkan Management Co. PLAINTIFF v. Chris and Holly Mellman DEFENDANTS

Docket # Docket No. 06-SP-05615

Parties: The Boulders/Barkan Management Co. PLAINTIFF v. Chris and Holly Mellman DEFENDANTS

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: December 26, 2007

MEMORANDUM OF DECISION ON DEFENDANTS’ M.G.L. c. 93A COUNTERCLAIM

This summary process action was initiated by the Plaintiff for non-payment of rent and possession. The Defendants, along with their children, resided at 1E Raintree Circle in Brockton, MA (the “Premises”), which is owned and managed by the Plaintiff, the Boulders/Barkan Management Co. (“Boulders”). In their Answer and Counterclaims, the Defendants stated that they withheld their rent due to the presence of mold in the Premises, and further alleged breach of the implied warranty of habitability, breach of the covenant of quiet enjoyment, violation of M.G.L. c. 93A[1], breach of the lease[2], and retaliation. The Defendants thereafter sought compensatory and punitive damages from the Plaintiff.

The Court conducted a three-day jury trial from June 11 through June 13, 2007. The jury returned its verdict, finding for the Plaintiff on all of the Defendants’ counterclaims including quiet enjoyment. As the Court retained the Defendant’s M.G.L. c. 93A counterclaim at the commencement of the trial, the Defendants now seek a verdict in their favor on this outstanding counterclaim. The Plaintiff argues that the jury’s verdict in favor of the Plaintiff on the underlying quiet enjoyment claim precludes a finding by the Court in favor of the Defendants on the M.G.L. c. 93A counterclaim. The Defendants argue that the Court should find in their favor on the M.G.L. c. 93A counterclaim notwithstanding the jury’s verdict in favor of the Plaintiff.

When considering the merits of a claim pursuant to M.G.L. c. 93A, the majority of courts hold that a judge is not bound by the findings of the jury. See Wallace Motor Sales, Inc. v. American Motor Sales Corp., 780 F.2d 1049, 1063 (1st Cir., 1985); PolyCarbon Industries, Inc. v. Advantage Engineering, Inc., 260 F.Supp.2d 296, 304 (D. Mass., 2003); Poly v. Moylan, 423 Mass. 141, 151 (1996); Wyler v. Bonnell, 35 Mass.App.Ct. 563, 568 (1994). “A judge may make independent and, therefore, different, findings on the c. 93A aspect of a case that arises from the same facts which gave rise to parallel common law claims.” Poly, 423 Mass. at 151, citing Wyler, 35 Mass. App. Ct. at 568. But see Cytologix Corp. v. Ventana Medical Systems, Inc., 2006 WL 2042331 at *2 (D. Mass., 2006)(allowing the Defendant’s Motion for Summary Judgment as to the Plaintiff’s M.G.L. c. 93A claim “because the underlying claims…were extinguished by virtue of the jury’s verdict and a 93A claim must fail where the underlying claims fail”); Pimental v. Wachovia Mortgage Corp., 411 F.Supp.2d 32, 40 (D. Mass. 2006)(allowing the Defendant’s Motion to Dismiss because the Plaintiff “…failed to allege sustainable breach of contract or negligence claims, and the Chapter 93A claim is based upon the previous two claims; [therefore], there is no basis for finding [the Defendant] liable under Chapter 93A”); Sanchez v. Witham, 2003 WL 1880131 at *2 (Mass.App.Div. 2003)(stating that the judge may

proceed to hear the Plaintiff’s M.G.L. c. 93A claim only if the jury first resolves the underlying claim in the Plaintiff’s favor).

This Court finds that the jury’s verdict on the Defendant’s quiet enjoyment claim did not extinguish the Defendants’ M.G.L. c. 93A claim in this case. See Wallace Motor Sales, Inc., 780 F.2d at 1063; PolyCarbon Industries, Inc., 260 F.Supp.2d at 304; Poly, 423 Mass. at 151; Wyler, 35 Mass.App.Ct. at 568. However, based upon the evidence and testimony presented at trial and for the reasons stated below, the Court finds for the Plaintiff on the Defendants’ M.G.L. c. 93A counterclaim.

The factual basis of the Defendants’ quiet enjoyment counterclaim related to the presence of mold at the Premises and alleged personal injury and damage to personal property attributable to the mold at the Premises. The Defendants testified that they advised the Plaintiff in February 2006 of the mold-related conditions at the Premises. The Court found their testimony credible as to the notice to the Plaintiff.

The Plaintiff’s property manager, Knija Dingle, testified credibly that the Defendants notified the Plaintiff of the mold conditions and that she consequently retained a mold testing company to confirm the presence of the mold in the Premises. She further testified that in May 2006, when she was first notified of damage to the Defendants’ personal property, the Plaintiff retained a cleaning company to remediate the mold on said property. She testified credibly the Plaintiff offered to relocate the Defendants in May 2006 (which offer was accepted by the Defendants) when it was determined by the Plaintiff that it was not economically feasible to make repairs to the Defendants’ Premises. The Plaintiff did, in fact, relocate the Defendants at its own expense and remediated all of the Defendants’ salvageable personal property. Finally, Ms. Dingle testified that neither she nor the Plaintiff were aware of any personal injury to the Defendants during the time in question.

The Court finds that the Plaintiff is subject to M.G.L. c. 93A, as the leasing of apartments for rent is clearly within the meaning of the statute. See E&M Realty Corp., c/o Weld Management Co., Inc. v. Holman and Shaw, Boston Housing Court Docket No. 98-SP-01046 (May 29, 1998)(Winik, J.)(finding that the Plaintiff, as owner of a residential rental complex, was engaged in trade or commerce within the meaning of M.G.L. c. 93A).

M.G.L. c. 93A, s.2(a) states that “Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” Further, under M.G.L. c. 93A, s.9(1), “Any person… who has been injured by another person’s use or employment of any method, act or practice declared to be unlawful by section two… may bring an action in the superior court, or in the housing court….”. M.G.L. c. 93A, s.(2)(c) provides, in pertinent part: “The attorney general may make rules and regulations interpreting the provisions of subsection 2(a) of this chapter…”

Pursuant to the Attorney General’s Consumer Protection Regulations codified at 940 C.M.R. 3.17(1), “It shall be an unfair or deceptive act or practice for an owner to…(b) Fail, during the terms of the tenancy, after notice is provided in accordance with

M.G.L. c. 111, s.127L, to (1) remedy a violation of law in a dwelling unit which may endanger or materially impair the health, safety, or well-being of the occupant, or (2) maintain the dwelling unit in a condition fit for human habitation; provided, however, that said violation of law was not caused by the occupant or others lawfully upon said dwelling unit;…(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; (f) Fail to provide services and/or supplies after the making or any representation or agreement, that such services would be provided during the term or any portion of the term of the tenancy agreement;…[or] (i) 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 efforts to conduct mold testing and determine the cause of the problem, coupled with its offer to relocate the Defendants was reasonable during the three month period between the initial notification from the Defendants until the Plaintiff relocated them to another unit. See McDonough v. Cullinane, Boston Housing Court Docket No. 98-SP-04525 (May 14, 1999)(Winik, J.)(finding that the landlord failed to act reasonably when he did not complete repairs to the premises for more than one year after he was notified of the adverse conditions); Anderson v. Lemus and Rodriguez, Boston Housing Court Docket No. 98-SP-04443 (Oct. 13, 1998)(Winik, J.)(finding that the landlord failed to act reasonably when he was notified of adverse conditions at the premises three months prior to trial and had failed to complete repairs by the date of the trial). The Court finds that the Plaintiff’s response in testing for mold, relocating the Defendants at its own expense upon finding mold at the Premises, and remediating the mold in the Defendants’ personal property did not constitute a violation of M.G.L. c. 93A. The Court therefore finds for the Plaintiff on the Defendants’ remaining M.G.L. c. 93A counterclaim.

As the jury found in favor of the Plaintiff on the Defendants’ counterclaims for breach of the implied warranty of habitability and the covenant of quiet enjoyment, the Court finds that the Defendants are not entitled to a defense to possession and

accordingly awards possession to the Plaintiff. Further, as the parties stipulated at trial that the Defendants owed the Plaintiff unpaid rent in the amount of $17,059.44, the Court hereby awards the Plaintiff damages in the amount of $17,059.44.

SO ORDERED.

cc: David Reservitz, Esq.

John S. Wessler, Esq.

Docket No. 06-SP-05615

The Boulders/Barkan Management Co. Plaintiff vs. Chris and Holly Mellman Defendants

JUDGMENT

Jury verdict for the Plaintiff as to all Defendants’ counterclaim issues, excepting a claim pursuant to M.G.L. Chapter 93A which was reserved by the Court (Edwards, J.), for determination.

Judgment for the Plaintiff as well, as to Defendants’ counterclaim issue under M.G.L. Chapter 93A, retained for determination by the court as referenced above, (Edwards, J.).

Judgment shall also enter for the Plaintiff for possession, unpaid rent in the sum of $17,059.44, plus costs.

Accordingly, judgment enters at 10:00 a.m. this 27th day of December 2007.

MARK R. JEFFRIES

CLERK MAGISTRATE

December 27, 2007

Docket #06-SP-05615

Mailing List:

David Reservitz, Esq.

1265 Belmont Street, Suite 2

Brockton, MA 02301

John S. Wessler, Esq.

Wessler & Wasserman

439 South Union Street, Suite 201

S. Lawrence, MA 01843

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[1] The Defendants M.G.L. c. 93A counterclaim is as follows: “14. The plaintiff’s conduct in permitting the above-described conditions to exist, and failure to properly and expeditiously repair, constitute a violation of G.L. c. 93A and regulations promulgated thereunder.”

[2] After a hearing conducted on March 19, 2007, the Court dismissed the Defendants’ breach of the lease counterclaim.

End Of Decision

HOUSING COURT

Lionel DeGuerre and Sheila Georges v. Marie Jean-Louis and Fred Marcelin

SOUTHEASTERN DIVISION

Docket # 07-SP-06906

Parties: Lionel DeGuerre and Sheila Georges v. Marie Jean-Louis and Fred Marcelin

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: December 20, 2007

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

This summary process action was brought by the Plaintiffs, Lionel DeGuerre and Sheila Georges against the Defendants, Marie Jean Louis and Fred Marcelin for non-payment of rent and possession. The Defendants filed an Answer alleging breach of the implied warranty of habitability and a counterclaim for quiet enjoyment. Both parties appeared pro se.

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

The Plaintiff Lionel DeGuerre testified that he owns the multi-family building (the “Building”) located at 98 Battles Street in Brockton, MA, with his wife Sheila Georges. The Plaintiff stated that the Defendants, tenants-at-will, moved into Apartment 1 (the “Premises”) on the first floor of the Building in July 2007. He further stated that the monthly rent is $900.00 and is due on the first day of the month but he has accepted rent as late as the seventh day of the month. The Plaintiff went on to state that the Defendants have not paid rent for September, October, and November 2007 at the rate of $900.00 a month, for total rent due in the amount of $2,700.00. He was credible in his testimony.

The Plaintiffs served the Defendants with a Fourteen-Day Notice to Quit on September 14, 2007, alleging unpaid rent in the amount of $900.00 for September 2007. Plaintiffs’ Exhibit 1. The Plaintiffs served the Defendants with a Summons and Complaint on October 10, 2007, alleging unpaid rent in the amount of $1,800.00 for the months of September and October 2007. At trial, the Plaintiffs moved to amend the Summons and Complaint to add rent for the month of November 2007 in the amount of $900.00, for a total due of $2,700.00. The Court allowed the Amendment.

Defendant Marie Jean-Louis described the conditions in the Premises. She indicated that the Premises had rodents and cockroaches and that she had advised the Plaintiff of the conditions at the Premises. She presented photographs of plastic plates that she indicated held rodent poison that had been provided by the Plaintiff. Defendants’ Exhibits D1-3. The Defendant further testified that she had contacted the City of Brockton Board of Health regarding conditions in the Premises and she submitted a letter dated November 7, 2007, the date of trial, and signed by a Board of Health representative indicating that there were violations of the State Sanitary Code at the Premises. Defendants’ Exhibit E. The Court notes that the letter does not reference any specific violations at the Premises.

The Plaintiff DeGuerre denied knowledge of the presence of rodents or cockroaches. He further denied supplying the Defendants with rodent poison. The Court found his testimony credible.

a breach of any material provision of the rental agreement, or for a violation of any other law.” Pursuant to M.G.L. c. 239, s.8A p.2, where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to a defense to possession only if: (1) the landlord knew or should have known of the 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 Defendants have alleged in their counterclaim that the Premises had conditions that would warrant a finding that the Plaintiffs had breached the implied warranty of habitability. The warranty of habitability is the landlord’s promise that the premises will meet certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the tenant is in material violation of the minimum standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). A landlord must have actual or constructive notice of the condition creating the violation. McKenna v. Begin, 3 Mass.App.Ct. 168 (1975). Damages are assessed from the date the landlord had notice of the condition of disrepair. Berman & Sons v. Jefferson, 379 Mass. 196 (1979). 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 Defendants failed to show that the Plaintiffs breached the implied warranty of habitability. The Court did not find the Defendant Marie Jean-Louis credible in her testimony that the Plaintiffs had notice of the conditions in the Premises prior to the date of trial. Further, the Court found the Plaintiff Lionel DeGuerre credible in his testimony that he was not aware of the conditions at the Premises prior to the trial. Therefore, the Court finds that the Defendants are not entitled to an award of damages or a defense to possession pursuant to M.G.L. c. 239, s.8A.

M.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…” A landlord violates M.G.L. c. 186, s.14 where he had notice, or reason to know of the serious condition in the tenant’s apartment, and failed to take appropriate corrective measures. Al Ziab v. Mourgis, 424 Mass. 847, 850-851 (1997); Cruz Management Co., Inc. v. Thomas, 417 Mass. 782 (1994).

quiet enjoyment. Doe v. New Bedford Housing Authority, 417 Mass. 273, 284-285 (1994); Lowery v. Robinson, 13 Mass.App.Ct. 982 (1982). The Court finds that the Defendants failed to present any credible evidence that the Plaintiffs knew or should have known of the conditions at the Premises prior to the trial on November 7, 2007. The Court therefore finds for the Plaintiffs on the Defendants’ quiet enjoyment counterclaim.

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 and damages for unpaid rent in the amount of $2,700.00, plus costs in the amount of $169.95.

2. Judgment enter for the Plaintiffs on the Defendant’s breach of the implied warranty of habitability counterclaim.

3. Judgment enter for the Plaintiffs on the Defendants’ counterclaim for breach of the covenant of quiet enjoyment pursuant to M.G.L. c. 186, s.14.

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

End Of Decision

HOUSING COURT

Abiodun Faleye v. Else Valcourt

Docket # 07-SP-05422

Parties: Abiodun Faleye v. Else Valcourt

Judge: /s/ WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: August, 2007

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

This summary process action was brought by the Plaintiff, Abiodun Faleye (‘Faleye’), against the Defendant, Else Valcourt (‘Valcourt’), for non-payment of rent and possession. The Defendant did not file an Answer. Both parties appeared pro se.

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

The Plaintiff testified that he owns the multi-unit building (the ‘Building’) located at 986 North Main Street in Brockton, MA. The Plaintiff stated that the Defendant, a tenant-at-will, moved into the second-floor apartment (the ‘Premises’) in the Building sometime in 2003. He further stated that the monthly rent is $1,100.00, including heat, and is due on the first of the month. The Plaintiff went on to state that the Defendant has not paid rent for the period of April 2007 through July 2007, for a total due of $4,400.00. He was credible in his testimony.

The Plaintiff served the Defendant with a Fourteen-Day Notice to Quit on May 21, 2007. Plaintiff’s Exhibit 1. The Plaintiff served the Defendant with a Summons and Complaint on June 7, 2007, alleging unpaid rent in the amount of $3,300.00[1] for the months of April, May, and June 2007 at the rate of $1,100.00 per month.

The Defendant testified that there were conditions at the Premises that violated the implied warranty of habitability. She stated that she had sent the Plaintiff a letter informing him of the conditions at the Premises, but she was unable to produce a copy of said letter. The Plaintiff denied receipt of any

correspondence from the Defendant concerning conditions at the Premises, and the Court found him credible on this issue. The Defendant otherwise failed to present a credible defense.

A landlord has the right to possession pursuant to M.G.L. c. 239, s.1. The Court finds that the Plaintiff has proven his prima facie case for possession and damages against the Defendant for unpaid rent in the amount of $4,400.00, plus costs, calculated as follows: $1,100.00 unpaid rent for the months of April, May, June, and July 2007.

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 and damages for unpaid rent in the amount of $4,400.00, plus costs in the amount of $177.70.

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

End Of Decision

HOUSING COURT

Raymond Graham v. Yvonne Goodman

SOUTHEASTERN DIVISION

Docket # 07-SP-05507

Parties: Raymond Graham v. Yvonne Goodman

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: October 31, 2007

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

This summary process action was brought by the Plaintiff, Raymond Graham (“Graham”), against the Defendant, Yvonne Goodman (“Goodman”), for possession and damages for unpaid rent in the amount of $1,500.00. The Defendant did not file an Answer but presented a defense and counterclaim at trial against the Plaintiff, alleging that the Plaintiff breached the implied warranty of habitability. Both parties appeared pro se. At the conclusion of the trial on July 25, 2007, the parties reached a partial Agreement for Judgment under which the Defendant agreed to vacate the Premises on July 30, 2007; possession is therefore moot.

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

Plaintiff’s Rent Claim

Plaintiff Raymond Graham testified that he is the owner of a six unit building at 134 Ames Street in Brockton, MA (the “Building”), which he purchased on April 11, 2007. The Defendant, Yvonne Goodman, was an existing tenant at the time of the purchase and resides in the Building at Apartment 1 West (the “Premises”). The Plaintiff testified that the Defendant’s rent is $750.00 a month and is due on the first of each month. He testified that as of the trial date, the Defendant owed $1,500.00 for rent for the months of June and July 2007 at the rate of $750.00 a month. The Court finds his testimony credible.

On June 14, 2007, the Plaintiff served a 14 Day Notice to Quit on the Defendant alleging rent due in the amount of $750.00 for June 2007. Plaintiff’s Exhibit 2. On June 30, 2007, the Plaintiff served a Summons and Complaint on the Defendant with an Account Annexed of $750.00, also for the month of June 2007.

A landlord has the right to possession pursuant to M.G.L. c. 239, s.1. The Court finds that the Plaintiff has proven his prima facie case for possession and damages against the Defendant for unpaid rent in the amount of $1,500.00, plus costs, calculated as follows: $750.00 per month unpaid rent for the months of June and July 2007. The Defendant presented her defenses and counterclaim.[1]

Defendant’s Implied Warranty of Habitability Claim

The Defendant alleges that conditions in the Premises violated the implied warranty of habitability. The implied warranty of habitability is the landlord’s promise that the premises will meet certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the tenant is in material violation of the minimum standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). A landlord must have actual or constructive notice of the condition creating the violation. McKenna v. Begin, 3 Mass.App.Ct. 168 (1975). Damages are assessed from the date the landlord had notice of the condition of disrepair. Berman & Sons v. Jefferson, 379 Mass. 196 (1979). The measure of damages for

breach of the implied warranty of habitability is the difference between the fair rental value of the premises as warranted and the fair rental value of the premises with the defects. McKenna v. Begin, supra at 172.

The Defendant testified that there were numerous adverse conditions in the Premises, including a water leak in the Defendant’s ceiling. She testified that she sent a letter dated June 15, 2007 to the Plaintiff, Defendant’s Exhibit A, regarding a ceiling leak. In her letter, Goodman further advised the Plaintiff that she would withhold rent pending the repair and that she felt that he was retaliating against her for reporting the conditions to the Brockton Board of Health (“Board of Health”). Defendant’s Exhibit A. She testified that she complained to the Board of Health regarding a lack of hot water and problems with the front exterior door locks. Plaintiff’s Exhibit 3. Goodman testified that the Board of Health inspected the Premises on June 19, 2007 and on June 20, 2007 ordered the Plaintiff to restore hot water to the Premises and to replace the existing locking mechanism. She went on to testify as to other conditions throughout the apartment, including broken windows and holes in the floors and walls. All or most of these conditions were documented by photos entered into evidence. Defendant’s Exhibits B1-B25. She was credible in her testimony as to the conditions in the Premises.

The Plaintiff testified without challenge that upon notification by the Board of Health of the lack of hot water in the Premises, Plaintiff’s Exhibit 3, he immediately completed necessary repairs to the hot water system. The Plaintiff continued his testimony by stating that he had not replaced all of the locks or inspected and repaired the ceiling leak, the broken windows, and the damage to the walls, as the Defendant had refused access to the Premises. Defendant’s Exhibit A, B1-B25.

Based on the evidence presented at trial, the Court finds that there were numerous defects at the Premises, all of which, in the aggregate, constituted a material breach of the implied warranty of habitability. The Defendant submitted evidence that on June 15, 2007 she notified the Plaintiff of the leaking bathroom ceiling, a day after her receipt of the Notice to Quit. Defendant’s Exhibit A. The Court finds that the Plaintiff received notice as to the remaining conditions on June 20, 2007. Defendant’s Exhibit 3. There was unchallenged testimony that the Defendant reported the lack of hot water to the Brockton Board of Health on or about June 19, 2007, and that the Plaintiff completed repairs to the hot water system the following day. However, the other conditions, including the improper door locks, the broken windows, and the holes in walls and floor continued from at least June 19, 2007 until the day of trial, July 25, 2007.[2] The Defendant did not provide convincing and credible evidence that the Plaintiff knew of any of the conditions other than the leaking ceiling prior to June 20, 2007.

Accordingly, the Court finds that the conditions at the Premises in the aggregate violated the implied warranty of habitability. The Court finds that water leaked through the bathroom ceiling during the period of June 15, 2007 through June 19, 2007. The Defendant is therefore entitled to a rent abatement of $12.35, or ten per cent (10%) for the period of June 15, 2007 through June 19, 2007 calculated as follows: $24.66/day[3] x 10% = $2.47/day x 5 days[4] = $12.35. The Court further finds that

numerous defects were outstanding in the aggregate from the date of the inspection by the Board of Health on June 20, 2007 through the date of trial on July 25, 2007, including lack of hot water, the leaking bathroom ceiling, holes in the floor, broken windows, and problems with the door locks. The Defendant is therefore entitled to a rent abatement of $177.48, or twenty (20%), for the period of June 20, 2007 through July 25, 2007, calculated as follows: $24.66/day x 20% = $4.93/day x 36 days[5] = $177.48. The Defendant is entitled to a rent abatement in the total amount of $189.83.

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 unpaid rent in the amount of $1,500.00, plus costs.

2. Judgment enter for the Defendant on her implied warranty of habitability counterclaim in the amount of $189.83.

3. The foregoing Order for Judgment paragraphs 1 and 2 result in a net judgment for the Plaintiff in the amount of $1,310.17, plus costs.

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

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[1] “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Mass.R.Civ.P. 15(b). Both parties proceeded without objection at trial as to the conditions at the Premises.

[2] The Plaintiff acknowledges certain conditions in the Defendant’s Premises in Plaintiff’s Exhibit 5, dated June 22, 2007. The Court will infer that this information was available to him as early as June 20, 2007, the date of the Brockton Board of Health inspection report that identifies problems with the door locks.

[3] The per diem rental rate is calculated as follows: $750.00/month x 12 = $9,000.00 ? 365 days = $24.66/day.

[4] The period of June 15, 2007 through June 19, 2007 consists of 5 days.

[5] The period of June 20, 2007 through July 25, 2007 consists of 36 days.

End Of Decision

HOUSING COURT

Donna M. Latouf v. Hometown America Management, Inc.

SOUTHEASTERN DIVISION

Docket # 01-CV-00443

Parties: Donna M. Latouf v. Hometown America Management, Inc.

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: December, 2007

ORDER ON USE AND OCCUPANCY FOLLOWING CONVEYANCE OF PREMISES

The Plaintiff, Donna M. Latouf (“Latouf”), brought this action seeking damages from the Defendant Hometown America Management, Inc. (“Hometown”), resulting from the construction and operation of a private community sewage treatment system on portions of land she leased for a residential manufactured home. Defendant Hometown denied all claims advanced by the Plaintiff.

The Court (Edwards, J.), on October 5, 2007, issued its Findings of Fact, Rulings of Law and Order for Judgment. This Court found that the Defendant’s placement, construction and operation of a sewage treatment system, coupled with numerous post-construction mechanical problems with the sewage treatment system, constituted a violation of 940 C.M.R. 10.02 and 10.03, and a breach of both the implied warranty of habitability and the covenant of quiet enjoyment. The Court further found that the Defendant’s decision to site the sewage treatment system, including the above-ground compressor shed and exhaust vents, on the Plaintiff’s lot breached the Lease between the parties. The Court accordingly awarded the Plaintiff net damages in the amount of $185,998.93, plus costs and attorney’s fees, including an award of $90,000.00 for the Defendant’s breach of the Lease upon finding that said breach reduced the market value of the Plaintiff’s manufactured home to zero. The Court further ordered the Plaintiff to convey the manufactured home to the Defendant upon payment of the $90,000.00 judgment for breach of the Lease.

In the October 5, 2007 Order for Judgment, the parties were ordered to appear before Court for a hearing to determine a fair and reasonable use and occupancy rate for the period following the Plaintiff’s conveyance of the Premises to the Defendant during which the Plaintiff continued to occupy the Premises. The parties have now done so and the Court heard the motions on October 30, 2007.[1]

On the day of hearing, the parties informed the Court that they had agreed upon a post-conveyance use and occupancy rate of $12.35 per day. As the Court finds this rate reasonable, the Court shall award the Defendant reasonable use and occupancy at the rate

of $12.35 per day for each day the Plaintiff occupies the Premises following the conveyance of the Premises to the Defendant pursuant to the Judgment of this Court dated October 5, 2007. Said payment will commence on the day title is conveyed to the Defendant and shall continue for a reasonable period of time until the Plaintiff vacates the Premises. Plaintiff’s payment shall be made weekly, in advance, to the Defendant, commencing on the first Monday following the conveyance of the title. The parties will appropriately pro rate and adjust any amount due the Defendant or any refund due the Plaintiff at the time Plaintiff vacates the Premises. Nothing herein shall be construed as establishing a tenancy between the Plaintiff and the Defendant. Defendant will continue to pay for utilities consumed at the Premises until the Plaintiff vacates.

ORDER ON AWARD OF FAIR AND REASONABLE USE AND OCCUPANCY

It is ORDERED that:

1. On the day of conveyance of the title to the manufactured home by the Plaintiff to the Defendant pursuant to the Judgment of this Court dated October 5, 2007, the Plaintiff shall pay to the Defendant the amount of $12.35 daily and continuing for a reasonable period of time until she vacates the Premises. Plaintiff’s payment shall be made weekly, in advance, to the Defendant commencing on the first Monday following the conveyance of the title. The parties will appropriately pro rate and adjust any amount due the Defendant or any refund due the Plaintiff at the time Plaintiff vacates the Premises. Nothing herein shall be construed as establishing a tenancy between the Plaintiff and the Defendant.

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[1] The Court further ordered the Plaintiff to file a Motion for Counsel Fees, Costs, and Expenses within ten (10) days of the date judgment entered. The Plaintiff timely filed said motion, which was also heard on October 30, 2007.

End Of Decision

HOUSING COURT

Donna M. Latouf v. Hometown America Management, Inc.

SOUTHEASTERN DIVISION

Docket # 01-CV-00443

Parties: Donna M. Latouf v. Hometown America Management, Inc.

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: December, 2007

ORDER AND AWARD OF LEGAL FEES

This Plaintiff, Donna M. Latouf (“Latouf”), brought this action seeking damages from the Defendant Hometown America Management, Inc. (“Hometown”), resulting from the construction and operation of a private community sewage treatment system on portions of land she leased for a residential manufactured home. The Plaintiff alleged in her Complaint that as a result of the installation of this sewage treatment facility, the Defendant breached the lease between the parties, negligently and fraudulently misrepresented material facts and breached the implied covenant of good faith and fair dealing. The Plaintiff further alleged that through the construction of this private community septic system, the Defendant violated regulations codified at 940 C.M.R. 10.02 and 10.03. The Plaintiff also alleged that the Defendant breached the implied warranty of habitability and violated the consumer protection statute codified at M.G.L. c. 93A, covenants of quiet enjoyment and residential use and, further, created a nuisance. Defendant Hometown denied all claims made by the Plaintiff.

Following the commencement of this action, David T. Hickox, P.E. (“Hickox”) was named as a Third-Party Defendant in this matter. After completion of discovery and prior to the commencement of the trial, Hickox was dismissed from the case but appeared as a witness.

The Court (Edwards, J.), on October 5, 2007, issued its Findings of Fact, Rulings of Law and Order for Judgment. This Court found that the Defendant’s construction and operation of a sewage treatment system, coupled with numerous post-construction mechanical problems with the sewage treatment system, constituted a violation of 940 C.M.R. 10.02 and 10.03, and a breach of both the implied warranty of habitability and the covenant of quiet enjoyment. The Court further found that the Defendant’s decision to site the sewage treatment system on the Plaintiff’s lot , including an above-ground compressor shed and exhaust vents, breached the Lease between the parties and the implied covenant of good faith and fair dealing. The Court found for the Defendant on its claim for unpaid rent in the amount of $23,001.07, and further found for the Defendant on the Plaintiff’s claims for negligent and fraudulent misrepresentation, nuisance, and breach of the covenant of residential use. The Court accordingly awarded the Plaintiff net damages in the amount of $185,998.93, plus costs and attorney’s fees, including an award of $90,000.00 for the Defendant’s breach of the Lease upon finding that said breach reduced the market value of the Plaintiff’s manufactured home to zero. The Court further ordered the Plaintiff to convey the manufactured home to the Defendant upon payment of the $90,000.00 judgment for breach of the Lease.

Pursuant to the Order for Judgment, the Plaintiff was ordered to file with the Court a Motion for Counsel Fees, Costs, and Expenses within ten (10) days of the date that judgment entered. The Plaintiff has now done so. The Court conducted a hearing on the motion on October 30, 2007.

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 court judge. Linthicum v. Archambault, supra at 388. An evidentiary hearing is not required. Heller v. Silverbranch Constr. Corp., supra at 630-631 (“[because] we conclude that the judge is to rely on his firsthand knowledge of the services performed before him … the judge in the instant case acted properly in awarding the Hellers attorney’s fees, notwithstanding the absence of evidence concerning time spent and the attorney’s usual charge.”). “A fair market rate for time reasonably spent preparing and litigating a case is the basic measure of a reasonable attorney’s fee under State law as well as Federal law.” Fontaine v. Ebtec Corporation, 415 Mass. 309, 326 (1993).

The Plaintiff was represented by Attorney Wayne M. Gray, an attorney who has been admitted to practice in the Commonwealth of Massachusetts. Mr. Gray represented in his affidavit that his hourly rate is $250.00. The Court finds Mr. Gray’s hourly rate of $250.00, while in excess of those rates normally charged by attorneys practicing in the greater Brockton area, reasonable for the nature and complexity of this particular action.

Attorney Gray has submitted an affidavit of legal fees along with the Motion for Counsel Fees, Costs, and Expenses, in which he describes the services he provided to his client in this action. Mr. Gray, on behalf of his client, has requested that the Court award legal fees in the amount of $80,875.00 for his time, including the time spent at trial on November 6, 7, and 14, 2006.

The Court has reviewed the time submitted by Mr. Gray on behalf of his client for the period from 2002 through the date of trial in November 2006. The Court expressly finds that this was an extremely factual case with a substantial number of documents and photos submitted by Mr. Gray in support of the Plaintiff’s case. Additionally, as noted in the decision, the action also involved a third-party defendant who was subsequently dismissed from the case. The Court also notes that the parties conducted a minimum of three (3) depositions prior to trial, all of which Mr. Gray attended. Mr. Gray was well prepared and presented his case to the Court in an efficient and professional manner. The Court finds that Mr. Gray’s submission of a total of 323.5 hours was reasonable for the period between 2002 and the date of trial and the Court now awards the Plaintiff reasonable attorney’s fees in the amount of $80,875.00.

The Plaintiff has also requested costs in the amount of $4,809.20, which represents court costs and fees, including the cost of subpoenas, depositions, mediation expense, photographs, copying of documents, service fees and expenses for appraisal experts. The Court will award costs in the amount of $4,809.20 to the Defendant.

ORDER ON AWARD OF PLAINTIFF’S ATTORNEY’S FEES

It is ORDERED that:

1. The Plaintiff is awarded attorney’s fees in the amount of $80,875.00 and costs in the amount of $4,809.20, for a total of $85,684.20, nunc pro tunc to October 5, 2007.

End Of Decision

HOUSING COURT

Donna M. Latouf v. Hometown America Management, Inc.[1]

SOUTHEASTERN DIVISION

Docket # 01-CV-00443

Parties: Donna M. Latouf v. Hometown America Management, Inc.[1]

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: October 5, 2007

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

This action brought by the Plaintiff, Donna M. Latouf (“Latouf”), seeks damages from the Defendant Hometown America Management, Inc. (“Hometown”), resulting from the construction and operation of a private community sewage treatment system on portions of land leased for a residential manufactured home. The Plaintiff alleges that as a result of the installation of this sewage treatment facility, the Defendant has breached the lease between the parties, negligently and fraudulently misrepresented material facts and breached the implied covenant of good faith and fair dealing. The Plaintiff further alleges that through the construction of this private community septic system, the Defendant violated regulations codified at 940 C.M.R. 10.02 and 10.03. Further, the Plaintiff alleges that the Defendant breached the implied warranty of habitability and violated the consumer protection statute codified at M.G.L. c. 93A, covenants of quiet enjoyment and residential use and, further, created a nuisance.

Defendant Hometown has denied all claims. The Plaintiff remains a tenant of the Defendant.

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

Factual History

The Plaintiff, Donna M. Latouf, testified that in 1995 she visited a manufactured home community known as The Glen (“The Glen”) in Norwell, MA. As a result of her visit, she purchased a ranch style manufactured home unit in The Glen located on a corner lot known as Lot #17 (the “Premises”) directly across from an off-site wetlands area to the east of her home. Plaintiff’s Exhibits 1 and 4. She also testified that the location of the unit was very quiet. She further stated that she paid $47,000.00 for the manufactured housing unit and moved in around October 1995. After she moved in, the Plaintiff testified that she installed an extensive flower garden on her front and side lawns, including the installation of new topsoil, a bird house and bird bath. Plaintiff’s Exhibit 75. She testified that she expended $3,000.00 for landscaping materials and installed the materials with her own labor, as she was an experienced landscaper. Plaintiff’s Exhibits 6-11, 67, 75.

At the time she purchased the manufactured unit in 1995, Latouf concurrently executed a six year lease (the “Lease”) with the then-owner of The Glen, Thomas Hastings (“Hastings”), Trustee of The Glen Realty Trust.[2] Plaintiff’s Exhibit 66. The Lease provides, in pertinent part: “Provisions of this Lease shall be subject to and Lessor shall comply with the requirements of Massachusetts General Laws Chapter 140, Section 31A et seq….Lessor shall have the benefit of, and this Lease is made subject to the rights of Lessor under said Massachusetts General Laws Chapter 140, Section 32A, et seq.” Plaintiff’s Exhibit 66, p.42.

The Lease states that the annual base rent is $3,769.20 per year, payable in monthly installments of $314.10. Plaintiff’s Exhibit 66, p.2. The Lease further provides that the annual base rent shall be increased by five per cent (5%) per year for the duration of the lease term. Plaintiff’s Exhibit 66, p.2. The annual base rent includes costs associated with the trash removal, snow plowing, sewage disposal, and the provision of water. Plaintiff’s Exhibit 66, p.2(c).[3] The Lease also states that the leased space may only be used for the site of a single mobile home for residential purposes. Plaintiff’s Exhibit 66, p.4. The Lease reserves to the Defendant “the right to make any changes, alterations, or modifications at any time to any of the plans, improvements (whether already constructed or to be constructed), roadways, walkways, drainage, utilities, sewerage, or any other aspect involved in the development, operation and use of The Glen…provided that no such change, alteration, or modification

shall (a) affect the location, size, or dimensions of the Premises or (b) substantially interfere with the Lessee’s use of the Premises for residential purposes”. Plaintiff’s Exhibit 66, p.18 (emphasis added). The Lessor further reserves the right to relocate the Lessee at the Lessor’s option and expense. Plaintiff’s Exhibit 66, p.18.

The Lessor also warrants and covenants in the Lease that “(a) [the] Lessor is the owner of the Premises; [and] (b) [the] Lessee, on paying the rent herein reserved and upon performing all of the terms and conditions of this Lease on its part to be performed, shall at all times, subject to the terms of this Lease, during his leasehold peacefully and quietly have, hold and enjoy the Premises.” Plaintiff’s Exhibit 66, p.39 (emphasis added).

During the first two years of her tenancy, Latouf stated that there were no problems with the septic system that served her property, nor were there any odors. However, beginning in 1997, the septic system serving her individual unit failed due to intrusion of tree roots into the system. She stated that the Defendant installed at its expense a new system that served only the Plaintiff’s unit. She was credible in her testimony.

In her continued testimony, she stated that she did not know a specific date when construction of the new community septic system commenced but she credibly testified that she received no notice of the planned septic project’s location on and adjacent to her leased lot. She testified that she returned home from her work in 1998 to find that the construction had started.[4] Latouf went on to describe her difficulty in accessing the entrance to her house during the construction period. She stated that she was required to cross over an excavation that was at least twenty feet deep on a wooden plank to reach her entrance door. She stated that she often would either need assistance from the construction personnel or would have to hold on to construction equipment to traverse the planking. She testified that construction in front of her lot commenced at 7:00 a.m. and work continued on to 6:00 p.m. Latouf stated that there was a great deal of noise and vibration from the construction, which caused items in her home to fall off the walls and containers to fall within her refrigerator. She indicated that both her electricity and water were cut off due to construction at various times over the one year construction period. She had to sleep at other locations three or four times during the year due to the water supply disruption as she was unable to bathe or use the toilet. Plaintiff’s Exhibits 12, 14, 16, 17, 21-23. She also described the construction work related to the erection of the compressor shed near her bedroom window. Plaintiff’s Exhibits 23 and 29. Ms. Latouf went on to also describe specific construction damages to the Premises, including damage to walkways, foundations, and lampposts. Plaintiff’s Exhibits 15, 18-20, 25, 32, 34.

Latouf testified that during the construction of the private community septic system in 1999, she contacted Andy Steger (“Steger”), the Defendant’s property manager, concerning the problems she was encountering with her Premises.[5] Plaintiff’s Exhibit 69 (undated letter). In her letter, Latouf stated, in pertinent part: “I have been inconvenienced for many many months as far as this construction on my rented lot goes. My car moved around, parked down street, me climbing over rocks and piles of

dirt to come and go from my house, having trouble unloading groceries into house. Noise constantly from construction, broken cement walkway, lamp post falling over…”. Plaintiff’s Exhibit 69. She also testified that she called and wrote James Brasier (“Brasier”), a regional supervisor for the Defendant, concerning the problems she was having at her location. Plaintiff”s Exhibit 67. In her letter dated April 22, 1999 and addressed to Brasier, Latouf writes: “I am writing this letter in complaint regarding the construction that has been going on around my house for almost 10 months now. I have been climbing over dirt piles, rocks, and tractors to get in and out of my house. Once I had to be walked across on a beam over a 20 foot deep hole…My house has been shaken day after day…my patio has been cracked, my lightpost is now falling down, the skirt of my house has been broken in 2 places…My water has been turned off time and time again without notice…My garden with $3,000 worth of shrubs and perrinials [sic] has been dug up and destroyed…Now I am told that this monster tank in my yard is here to stay and a building will be built outside my bedroom window for some pumping equipment…”. Plaintiff’s Exhibit 67. According to Latouf’s testimony, Brasier responded by letter on April 28, 1999, with a promise to make repairs to both the home and to the landscaping. Plaintiff’s Exhibit 68. “We will make every effort to repair any damage to your home that we may have caused during the installation of this new system. Additionally, the landscaping in your yard will be returned to its original condition or as close thereto as humanly possible.” Plaintiff’s Exhibit 68.

Latouf testified that she contacted the Norwell Board of Health (“Board of Health”) in late May 1999 regarding her issues with the construction of the community septic system, coupled with the odor and noise problems, Plaintiff’s Exhibit 70, and as a result Brian Flynn (“Flynn”), a Health Agent for the Board of Health, inspected the Premises. She testified that Mr. Flynn discussed the odor problem with her then. She testified that she attended various meetings at the Norwell Board of Health with other residents of The Glen in June and August 1999, when strong odors emanating from the newly constructed and now operational FAST system wafted throughout The Glen. Plaintiff’s Exhibits 72, 81-85. She stated that she did not bring suit at that time against the Defendant as she wanted to give it an opportunity to fix the system. She indicated that the smell from the new system was continuous and very strong. Latouf described the smell as a 10 if measured on a scale from 1 to 10, with 10 being the strongest or highest rating. Further, she stated that she also had odors and smells emanating from her toilet. Plaintiff’s Exhibits 37, 85, 86.

On July 1, 1999, Latouf, through her attorney, sent the Defendant a letter pursuant to M.G.L. c. 93A demanding compensation for the disruption and damage caused by the construction and the presence of a compressor shed in the Plaintiff’s yard. Plaintiff’s Exhibit 73. The Plaintiff further alleged that the Defendant misrepresented the extent of the construction project and the location of the compressor shed, and failed to repair the damage to the Premises caused by the construction project. Plaintiff’s Exhibit 73. The Defendant responded by letter on August 2, 1999. Plaintiff’s Exhibit 74. In its response, the Defendant denied all claims and further claimed that all problems with the septic system

and the Plaintiff’s property had been solved. Plaintiff’s Exhibit 74. The Defendant then requested further information from the Plaintiff, and denied the Plaintiff’s request for a settlement offer. Plaintiff’s Exhibit 74.

Ms. Latouf testified that on or about August 25, 1999, her house was condemned by the Norwell Board of Health as uninhabitable due to the excessive odors from the FAST system. Plaintiff’s Exhibits 39, 72, 84, and 85. She stated that she and her dog moved out of the Premises and into a Ramada Inn, for which the Defendant paid. The Plaintiff paid for food, gasoline, telephone, laundry and other out of pocket expenses totaling approximately $2,500.00. She was denied access to her home for approximately five weeks. As she could no longer keep her dog at the Ramada Inn after the five week period, she requested that the Defendant either relocate her to an efficiency apartment rather than a hotel or relocate her home from the current site at Lot #17 to a new site pad in The Glen. The Defendant did not agree to either request.

Latouf testified that at a September 27, 1999 Norwell Board of Health meeting she requested that the Board permit her access to her home to obtain certain personal items left behind when the Board condemned the Premises. Plaintiff’s Exhibit 88. She also said that she requested that the Board of Health lift the condemnation order as she could no longer stay in the Ramada Inn with her dog. The Board of Health granted her request to return and she returned to the Premises sometime after the meeting. Plaintiff’s Exhibit 88. She testified that the odor from the new septic system had started to dissipate upon her return. Defendant’s Exhibit CC. Latouf further stated that she then noted that the shed that would house the compressor machinery for the new septic facility was constructed without adequate soundproofing. Additionally, she described the presence of large exhaust vents within the front yard of the Premises. Plaintiff’s Exhibits 30, 41, 56, 61.

She then described the alarm mechanisms that serve the FAST system structure outside her manufactured home. She indicated that at the top of the compressor shed there is a red light that activates and an alarm that sounds if there is a power surge or loss of power to the FAST system. When the alarm is activated, she testified that she has to call the Defendant’s maintenance personnel to turn the alarm off and to have the underlying electrical problem rectified. She also said that the system had to be pumped every two months or so which required several hours of pumping by a septic truck to remove liquid from a manhole located adjacent to her house. Plaintiff’s Exhibits 33 and 62.

The Plaintiff identified several complaint forms submitted to the Norwell Board of Health. On July 2, 2001, the Plaintiff complained of odors near the septic system. Plaintiff’s Exhibit 93. An inspection on that day revealed that the “FAST system pumps were not working due to an electrical problem.” Plaintiff’s Exhibit 93. On March 20, 2003, the Plaintiff again complained of odors coming from the septic system. Plaintiff’s Exhibit 95. An agent from the Board of Health inspected the Premises on that day and found no odors. Plaintiff’s Exhibit 95. The Plaintiff filed additional complaints of odors near the FAST unit on May 21, 2003 and May 29, 2003. Plaintiff’s Exhibits 96, 97. Board of Health inspections of the Premises on May 21, 2003, May 30, 2003, June 26,

2003, June 17, 2004, and May 3, 2005 revealed odors coming from the FAST system; an inspection on June 15, 2004 did not reveal the presence of any septic odors near the Premises. Plaintiff’s Exhibits 96-99, 101.

She continued her testimony by relating an incident that occurred on New Year’s Eve 2005 in which the FAST system alarm activated at 11:00 p.m. Plaintiff’s Exhibit 102. She stated the in-ground steel cover plates that protect the underground pumping chambers, Plaintiff’s Exhibits 33, 52, and 62, began to vibrate, which also caused her unit to shake. She was concerned with the strong vibrations and noises coming from the FAST system and called the Norwell Fire Department. Upon the arrival of the fire department but prior to the fire personnel investigating, one of the chamber covers either blew off or opened unexpectedly, almost hitting a firefighter. The system was then immediately shut down by the fire department. Plaintiff’s Exhibit 102. She testified that there had been a subsequent event later on New Year’s Day 2006.

Latouf continued her testimony by stating that sometime in August of 2000 Hometown attempted to re-landscape the land in the front of the Premises at the completion of the construction of the new septic system. Plaintiff’s Exhibits 47, 49, 51, 52, 56, 57. She stated that she had not been reimbursed for any of her original landscaping costs, in the approximate amount of $3,000.00. Plaintiff’s Exhibits 67, 75.

She testified that beginning in 2001 she attempted to sell the Premises. She contacted four realtors between 2001 and 2004 but she was unable to obtain a realtor who would take the listing. In 2006 she was able to retain a Kevin O’Brien to take the listing. She believed that comparable prices for her type of manufactured home would be in the $95,000 to $122,000 range up to as much as $150,000 to $160,000. She listed her property with Mr. O’Brien for $104,000.00. Defendant’s Exhibit JJ. She testified that she believed that the location of the FAST system in the front of her yard with the compressor shed adjacent to her unit significantly reduced the value of the Premises. She also testified that she freshened up the landscaping around the patio and other portions of the Premises in an effort to help sell the property. The Court found her testimony credible.

On cross-examination, Latouf confirmed that she was aware that the Defendant had installed soundproofing and charcoal filtering in the compressor shed to control noise and odors from the FAST system. Further, she confirmed that the vent pipes that were in the middle of her yard had been relocated or rerouted through the compressor shed and now vented higher on the roof of the shed rather than in her yard. Plaintiff’s Exhibits 61, 65; Defendant’s Exhibits Y, Z, AA, BB. She stated that her estimate to replace landscaping items she installed in1997 and 1998 was approximately $27,000.00 and included the replacement of six year old trees that had been removed during the construction of the FAST system. She has not had to seek any medical treatment due to exposure to odors from the FAST System. She remained credible in her testimony.

She testified that from November 19, 1998 through November 2006, the total rent due was $42,492.82. Plaintiff’s Exhibit 76. She further testified that she paid the Defendant $21,737.82 through January 2003, and that $20,655.00 had been placed in an

escrow account, which represents rent due from February 2003 through November 2006. Plaintiff’s Exhibit 76. The Court found her testimony on these issues credible.[6]

David Hickox[7] testified that he currently serves the Town of Dartmouth as both Superintendent of Public Works and as Town Engineer. He holds a degree from University of Massachusetts in Environmental Engineering and is a Professional Engineer (P.E.) licensed by the Commonwealth of Massachusetts. He was employed by the engineering firm of Stone and Webster. He currently also owns his own engineering consulting business. He has been designing septic systems for a period of 10 years for both the Town of Dartmouth and for individual clients. He indicated in his testimony that the design and construction of a septic system requires sewage to be collected on site and treated.

He testified that he performed work for Thomas Hastings (“Hastings”), the previous owner of The Glen. That work was conducted prior to 1997 and involved another development in Rockland, MA, owned by Hastings. He was initially retained by Hastings for the purpose of designing an on-site septic system for the entire Glen community. As part of the preparation, he identified various wetlands adjacent to or on property owned by The Glen. He surveyed the site for utilities and topographical information and developed a plan for the installation of a new septic system to serve all the manufactured units in The Glen. Plaintiff’s Exhibit 1.

He identified for the Court the Plaintiff’s lot, Lot #17, on Plaintiff’s Exhibit 1. Hickox further identified the FAST septic system installation (including an underground 15,000 gallon tank and related underground pumping system). The location of the FAST system incorporates a large area on or adjacent to the Plaintiff’s leased lot. Hickox described the FAST unit as a small wastewater treatment system consisting of an underground 15,000 gallon concrete tank with aeration components for the sewage effluent. According to his testimony, the system requires two holding tanks for the effluent. That effluent, he stated, then flows to the FAST tank for further treatment. The FAST system aerates the sewage waste, treats and cleans it, then discharges it into the ground. The system components include a compressor and a defuser. The compressor runs continuously; a related pump runs only as needed. The compressor is located in a compressor control shed, which is shown on Plaintiff’s Exhibit 1 as the “Air Compressor and Control Shed”. If the compressor is off or not working, the sewage effluent is not treated. Hickox stated that noise abatement was designed into the original plan of the pump house/compressor shed. Hickox was credible in his testimony regarding the design and operation of the system.

Prior to Hometown’s purchase of The Glen manufactured housing community, Hickox stated that he and Hastings had considered three possible locations for the FAST system. The first location was the current location on and adjacent to Lot #17, the Plaintiff’s Premises. The other two locations were to the south and north of the current location on Lot #17. When Hometown purchased The Glen, both the southern and northern locations were discarded as possible locations for the FAST system. Hickox testified that he was retained by Defendant Hometown to finish design and construction documents for the system to be located on its current location.

Hickox described difficulties in installing and operating the FAST system due to problems with the site. He identified a second Plan, the undated “As-Built Plan”. Plaintiff’s Exhibit 2. This plan, he testified, shows the actual location of the system and components as constructed in the entire Glen community. He stated that the FAST system is designed for a certain sewage flow and, accordingly, the Glen was restricted to attaching a total of 36 manufactured housing units to the system. He identified the location of the vent line for the FAST system. He went on to state that at the time of original construction, the vent line for the FAST system exhausted into the Plaintiff’s yard. The vent line was subsequently re-routed through the compressor shed and currently exhausts through the roof of the shed. He described the shed as ten feet high with a white vent pipe protruding from the roof. Plaintiff’s Exhibit 4. The steel chamber covers for the FAST system’s underground tanks are at ground level.

He testified to attending at least one meeting of the Norwell Board of Health regarding problems with the FAST system vent pipe and odors coming frm those vents. He stated that he recalled having discussions with the Board of Health, Ken Powers, and Andrew Steger regarding vent pipes around the Premises along with the smell of sewage. He identified the minutes from the September 13, 1999 Board of Health meeting, which he attended. Plaintiff’s Exhibit 3. He testified that the FAST system does not generate gas. Hickox stated that he had no opinion as to the reasons odors were occurring intermittently through the FAST system. He further testified that he has only been in Latouf’s house once and he did not know whether the house was properly ventilated.

He testified that he discussed with the Defendant’s personnel (specifically Ken Powers and Andrew Steger) the possibility of relocating the Plaintiff’s unit to another site in The Glen. He also testified that he could not recall any complaints made to him concerning high noise levels coming from the compressor shed. Further, Hickox stated that at the initial planning stages of the FAST system the Board of Health did not request that the Defendant relocate the manufactured homes at either Lot #16 or Lot #17. He testified that suggestion was made by the Board of Health that the Defendant should relocate the Plaintiff after problems with the constructions, odors, and noise arose as to the FAST system. Plaintiff’s Exhibits 3, 72, 85. He was credible in his testimony.

Andrew Steger testified that he is currently employed by Hometown America, formerly known as Chateau Communities. He has been involved in various phases of manufactured home development and operation since 1970 and has been employed by Hometown since 1996. His involvement with The Glen began in 1998. He also testified that he is now involved on behalf of the Defendant with the management of another manufactured home community known as Leisure Woods.

He stated that during his management of The Glen, he supervised a maintenance crew of three individuals who did snowplowing, building maintenance and minor repairs. The tenants of The Glen were responsible for the maintenance of their leased areas including shoveling of snow. The Glen provided water and sewer services. He testified that he first became aware of septic issues at The Glen in 1998.

He stated that he believed that the tenants of The Glen

received a hand delivered letter informing them of the nature of the work prior to the beginning of the construction for the FAST system. He confirmed conversations that he had with both the Plaintiff and the Norwell Board of Health concerning the Plaintiff’s problems with the location and operation of the FAST system. He testified that he made no promises and knew of no promises by Hometown America to relocate the Plaintiff or to buy her out. He testified that he did not receive any complaints from the Plaintiff concerning disruption of utilities and water. He testified that he was not directly involved with the construction of the new FAST septic system and that the actual construction contractor would have handled any issues regarding water or other utility service interruptions. When the Plaintiff was temporarily relocated by the Defendant, Steger testified he assisted her in trying to find alternative lodging, including possibly an efficiency unit, but none were available. The Court found his testimony credible.

Mr. Steger then testified to his knowledge of the value of manufactured homes. He testified that at the Leisure Woods manufactured home community, a so-called “double-wide trailer” would sell for $150,000.00. He testified that Leisure Woods was a more upscale, 55+ age-restricted manufactured housing community. He said that manufactured homes that were built in 1964 or so, similar to the Plaintiff’s unit, and those built in the 1980’s were constructed to different building code requirements. The homes built in the 1980’s, according to his testimony, had improved construction and insulation. His concern would be whether a 1960’s era manufactured home could be relocated to another site location as, due to its age and construction, it might literally fall apart when moved. The Court found his testimony credible.

Brian Flynn of the Norwell Board of Health testified that he has been a Health Agent for that Board for a period of 12 years. He identified various documents from the Board of Health related to the construction of the FAST System and described his familiarity with the issues surrounding the condemnation of the Plaintiff’s house in August 1999. Plaintiff’s Exhibits 3, 81-85, 87-92.

He testified that the system installed was over-engineered, as it was designed for 9,000 gallons of sewage daily and The Glen only generated about 3,000 gallons daily. He described receiving frequent complaints from the Plaintiff concerning odors that commenced in July 2001, continuing through June 2003 and intermittently through to January of 2006. Plaintiff’s Exhibits 93, 95-99, 102.

Additionally, he testified that if there were excessive odors, a finding of same would violate 310 C.M.R. 7.09.[8] He stated to the Court that the Department of Environmental Protection would not necessarily have jurisdiction over odor issues as that agency is primarily concerned with water quality. He confirmed that due to the size of the FAST system, only 36 manufactured homes at The Glen could be tied into the new system. He also knew of no reason why the Plaintiff’s trailer could not be relocated.

Flynn also testified as to the State Sanitary Code 105 C.M.R. 410.020 and 105 C.M.R. 410.300. 105 C.M.R. 410.020 provides, in pertinent part: “A Condition Making a Unit Unfit for Human Habitation is a condition meeting the standard set forth in the Massachusetts General Laws under which a board of health may

justify closing down, condemning, or demolishing a dwelling or dwelling unit. It shall mean a violation which poses such immediate harm or threat of harm to an occupant or to the public that other legal remedies cannot be reasonably expected to bring about removal of the condition with sufficient speed to prevent the serious harm or injury to the occupants or to the public.” 105 C.M.R. 410.300 provides: “The owner shall provide, for each dwelling, a sanitary drainage system connected to the public sewerage system, provided, that if, because of distance or ground conditions, connection to a public sewerage system is not practicable, the owner shall provide, and shall maintain in a sanitary condition, a means of sewage disposal which is in compliance with 310 C.M.R. 15.00…”. He was credible in his testimony. The Court took judicial notice of said regulations.

Kevin O’Brien testified that he is the owner of Greener Pastures Real Estate. Prior to that position, he worked as a licensed real estate broker for Jack Conway Real Estate and other companies. He has sold manufactured homes in The Glen since 1998 and has sold a total of seven units.

He confirmed that he currently has the Plaintiff’s home listed for sale. He gave her an opinion of the market value of the unit based upon similar properties in Leisure Woods, another manufactured home community. He described the opinion of market value as based on what has been sold, reflecting low, medium and high value on a particular piece of land or property. Currently, the Plaintiff has a 900 square foot unit listed for sale at $104,000.00 on the Multiple Listing Service. Defendant’s Exhibit JJ. A 600 square foot unit located on Lot #1 in the Glen sold for $89,900.00. O’Brien testified that as of the date of trial the real estate market is extremely slow and that he has had a total of three showings of the Premises and has received no offers. He testified that no interest has been expressed by potential purchasers who have visited the Premises. He went on to state that the principal factor in the rejection of the Premises was the FAST system compressor shed on and adjacent to the site. He was credible in his testimony.

On cross-examination, O’Brien testified that a manufactured home on Lot #5 in The Glen sold in July 2005 for $20,000.00. He indicated that while the market was stronger in 2005 than at the date of trial, the sale of Lot #5 was a distressed sale, and the seller lowered the listing price significantly. The unit on Lot #5 was 800 square feet and was originally on the market at $52,000.00. The unit on Lot #6 was 150 to 200 square feet smaller than the Premises and was manufactured in 1968, four years after the Premises was built.

O’Brien continued his testimony and discussed another listing currently in Norwell at Washington Park, a manufactured housing community approximately 1 mile from The Glen. The purchase price of $57,900.00 also includes the fee in the lot. Defendant’s Exhibits GG, HH, II. He was credible in his testimony.

Stephen DeCastro, a Massachusetts Certified General Real Estate Appraiser, testified that he has been a certified appraiser since 1991. He indicated that he had obtained various degrees including an MBA from Southeastern Massachusetts University along with an architectural degree from Wentworth Institute. Further, he testified he has completed various ongoing continuing education

appraisal courses. He indicated further that he had been an appraiser for 24 years and has testified as an expert witness in trials in Probate and Superior Court along with Bankruptcy Court. Further, he teaches the Uniform Standard for Professional Practices to new appraisers.

DeCastro described the Plaintiff’s manufactured unit as a double-wide manufactured house constructed in 1964. The structure is 20 feet by 45 feet with a 6 foot by 14 foot enclosed porch. The interior of the manufactured house contains three bedrooms, a dining room, kitchen and bath. DeCastro testified that the market value for the Premises without the compressor shed was approximately $90,000.00. Plaintiff’s Exhibit 105. DeCastro stated that he based his opinion of market value on sales of comparable properties in the Norwell area. He further stated that there was no market for the Premises due to both the location of the compressor shed and the inability to relocate the Premises without causing extensive damage. Plaintiff’s Exhibit 105. DeCastro therefore stated in his appraisal report that the market value of the Premises was reduced to zero.[9] Plaintiff’s Exhibit 105. He was credible in his testimony.

Breach of Lease and Implied Covenant of Good Faith and Fair Dealing Claims

A residential lease is a contract between a landlord and a tenant under which a landlord promises to provide and maintain residential premises in a habitable condition while the tenant promises to pay the agreed upon rent for the habitable premises. The existence of a material or substantial breach of a residential lease is a question of fact and must be determined in the circumstances and facts of each case. Jablonski v. Casey 64 Mass.App.Ct. 744 (2005); DiBella v. Fiumara 63 Mass App. Ct. 640, review denied 444 Mass. 1107 (2005).

In every contract in Massachusetts, there is an implied covenant of good faith and fair dealing, which governs the manner of performance of a contract. Uno Restaurants, Inc., v. Boston Kenmore Realty Corp., 441 Mass. 376, 385 (2004). The covenant “provides that neither party shall do anything that will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.” Id. at 381; Anthony’s Pier Four, Inc., v. HBC Associates, 411 Mass. 451, 471 (1991). The covenant does not create rights and duties that are not written into the contract; it merely dictates the manner in which the contract must be performed. Id. The burden is on the plaintiff to show a lack of good faith, but the plaintiff need not show bad faith. Uno Restaurants, 441 Mass. at 375 n.5.

A plaintiff who proves a breach of the covenant of good faith and fair dealing is entitled to damages equal to the economic losses suffered as a result of the breach. Ayash v. Dana-Farber Cancer Institute, 443 Mass 367, 385 (2005).

The Lease between the parties reserved to the Defendant as Lessor “the right to make any changes, alterations, or modifications at any time to any of the plans, improvements (whether already constructed or to be constructed), roadways, walkways, drainage, utilities, sewerage, or any other aspect involved in the development, operation and use of The

Glen…provided that no such change, alteration, or modification shall (a) affect the location, size, or dimensions of the Premises or (b) substantially interfere with the Lessee’s use of the Premises for residential purposes”. Plaintiff’s Exhibit 66, p.18 (emphasis added). The Defendant as Lessor further reserved the right to relocate the Lessee at the Lessor’s option and expense as follows: “In addition to the foregoing, Lessor, upon no less than ninety (90) days prior written notice to Lessee, reserves and maintains the right, at Lessor’s sole cost and expense and at Lessor’s risk in the event of damage to the mobile home arising from such relocation, to relocate the mobile home and other property of Lessee … to a different lot within the boundaries of The Glen as exists of the date hereof ….” Plaintiff’s Exhibit 66, p.18 (emphasis added).[10]

The Court finds that the Defendant’s actions in constructing and maintaining a community septic system on the Defendant’s Premises was a material breach of the Lease between the parties. More specifically, the Defendant’s decisions to site the community septic system on, under and adjacent to the Plaintiff’s Premises including the placement of a large above-ground compressor shed and exhaust vents for the system directly on the Plaintiff’s front lawn and outside her bedroom window constituted both a material breach of the Lease and a breach of the implied covenant of good faith and fair dealing. The Court has found that the Defendant, in the Lease, reserved to itself the right to change or alter the improvements in The Glen so long as such alteration would not affect the location, size, or dimensions of the Plaintiff’s Premises or “…substantially interfere with the Lessee’s use of the Premises for residential purposes”. Plaintiff’s Exhibit 66, p.18. Additionally, paragraph 18 of the Lease provided the Defendant with a relocation protocol that it could follow in the event it wished to relocate the Plaintiff’s manufactured home to a different location within The Glen. The Defendant did not exercise this relocation protocol but instead willfully chose to materially alter the size and dimensions of the Premises, substantially interfering with the Plaintiff’s use of her home for residential purposes. The failure to exercise this protocol further indicates to the Court that the Defendant breached the implied covenant of good faith and fair dealing as required under Massachusetts case law. See Uno Restaurants, 441 Mass. at 385; Anthony’s Pier Four, 411 Mass. at 471.

The Court finds that as a result of the Defendant’s actions, the Plaintiff suffered economic damages equal to the market value of her manufactured home. There was credible testimony presented by the Plaintiff’s appraiser, Stephen DeCastro, that the market value of the Plaintiff’s manufactured home absent the community septic system and compressor shed was approximately $90,000.00. Mr. DeCastro also testified credibly that there was no market for the manufactured home as currently located in The Glen.

Similarly, Kevin O’Brien of Greener Pastures Real Estate, the listing broker, testified that potential buyers had expressed no interest in the property and that the principal reason given to him was the location of the FAST septic system including the compressor shed on and adjacent to the Plaintiff’s manufactured home. Further, the Plaintiff testified that from time to time odors, noises and alarms emanated from the compressor shed located outside

of her bedroom window.

The Plaintiff’s testimony, in addition to the testimony of her witnesses, as to the value of the manufactured home was unchallenged by the Defendant. There was testimony by Andrew Steger that attempting to relocate the manufactured unit could possibly destroy it due to its age.

The Court determines that the Plaintiff has suffered damages in the amount of $90,000.00 to her manufactured home and its immediate appurtenances due to the Defendant’s breach of the Lease and for the violation of the implied covenant of good faith and fair dealing in the performance of a contract. The Court therefore awards the Plaintiff damages in the amount of $90,000.00.[11]

Mass.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.” The Court finds that the Plaintiff would be unjustly enriched if she were allowed to retain possession of the Premises after the Defendant pays the judgment rendered in this Decision. Accordingly, within sixty (60) days of the date the Defendant pays to the Plaintiff the manufactured home’s fair market value of $90,000.00 as has been determined herein, the Plaintiff shall vacate the Premises and convey all right, title and interest in the manufactured home over to the Defendant, free and clear from any and all encumbrances. Further, following payment of $90,000.00 by the Defendant, the Plaintiff shall pay for the fair and reasonable use and occupancy of the Premises until the Plaintiff has vacated the Premises. Nothing herein shall be construed as creating a tenancy between the parties after the payment ordered above has been made by the Defendant.

M.G.L. c. 186, s.20 provides, in pertinent part: “Whenever a lease of residential property shall provide that in any action or summary proceeding the landlord may recover attorneys’ fees and expenses incurred as the result of the failure of the tenant to perform any covenant or agreement contained in such lease…there shall be implied in such lease a covenant by the landlord to pay to the tenant the reasonable attorneys’ fees and expenses incurred by the tenant as the result of the failure of the landlord to perform any covenant or agreement on its part to be performed under the lease…”. The Lease provides: “If suit is brought by the Lessor to enforce any covenants of this Lease or for the breach of any covenant or condition herein contained, or Summary Process proceedings are brought to remove the Lessee in the event of the Lessee’s failure to vacate the Premises after the expiration of this Lease, or any extension thereof, or by reason of a breach of any of the covenants of Lessee hereunder, including without limitation the covenant to pay rent, the parties hereto agree that the Lessee shall pay the Court costs of such action, as well as a reasonable attorney’s fee for the Lessor’s attorney.” Plaintiff’s Exhibit 66, p.38. Accordingly, the Court finds that the Plaintiff is entitled to costs and reasonable attorney’s fees incurred in the pursuit of her breach of lease claim. M.G.L. c. 186, s.20; see Hemenway Realty Trust v. Smith, et al., Boston Housing Court Docket No. 03-SP-02197 (Feb. 15, 2006)(Pierce, C.J.).

Within fourteen (14) days after the date that judgment enters, the Plaintiff 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). After hearing, the Court shall award reasonable attorney’s fees and costs, nunc pro tunc.

The Negligent and Fraudulent Misrepresentation Claims

“To sustain a claim of [negligent] misrepresentation, a plaintiff must show a false statement of material fact made to induce the plaintiff to act, together with reliance on the false statement by the plaintiff to the plaintiff’s detriment.” Zimmerman v. Kent, 31 Mass. App. Ct. 72, 77 (1991). Massachusetts law does not require the plaintiff to prove that the defendant knew the statement was false. Artioli v. Walker, Hampden Housing Court Docket Nos. 88-LE-3152-S, 88-LE-3289-S. “The speaker need not know that the statement is false if the truth is reasonably susceptible of actual knowledge, or otherwise expressed, if, through a modicum of diligence, accurate facts are available to the speaker.” Zimmerman, 31 Mass. App. Ct. at 77. The burden is on the plaintiff to prove each element of the claim.

Damages for a party’s negligent misrepresentation are equal to the difference between the value of the item received, or the price for which the item may be sold, and the price paid for the item, plus consequential damages. Danca v. Taunton Savings Bank, 385 Mass. 1, 9 (1982).

In contrast, an action for fraudulent misrepresentation (or deceit) lies when the defendant makes a false representation of a material fact with knowledge of its falsity for the purpose of inducing the plaintiff to act thereon, and the plaintiff, relying upon the representation as true, acts upon it to his detriment. Danca v. Taunton Savings Bank, 385 Mass. at 8. The deception need not be direct; it is enough that the defendant made a statement from which the plaintiff could reasonably infer some action was taken, if the defendant was aware that the action had not, in fact, been taken. See id. The burden is on the plaintiff to prove each element of the claim. See id.

Damages for fraudulent misrepresentation are governed by the benefit of the bargain rule. See id. A plaintiff who successfully proves fraudulent misrepresentation is entitled to the difference between the value of the item as represented and the actual value of the item at the time of the misrepresentation. See id.

The Plaintiff testified that prior to the start of construction in 1998 she was not informed by the Defendant of the nature and extent of the FAST system and its impact on her Premises. While the Court found her credible in her testimony as to this aspect of her communications with the Defendant, there was no testimony or evidence that she was negligently or fraudulently induced to act (or not act) based upon statements by the Defendant. However, in subsequent written communication in April of 1999, the Plaintiff communicated to the Defendant her complaints with the ongoing construction. “I am writing this letter in complaint regarding the construction that has been going on around my house for almost 10 months now. I have been climbing over dirt piles, rocks, and tractors to get in and out of my house. Once I had to be walked across on a beam over a 20 foot deep hole…My house has been shaken day after day…my patio has been cracked, my lightpost is now falling down, the skirt of my house has been broken in 2

places…My water has been turned off time and time again without notice…My garden with $3,000 worth of shrubs and perrinials [sic] has been dug up and destroyed…Now I am told that this monster tank in my yard is here to stay and a building will be built outside my bedroom window for some pumping equipment…”. Plaintiff’s Exhibit 67. In response, the Defendant through its employee James Brasier stated that although the construction project was “a short term inconvenience for the residents at The Glen, it represents a long-term improvement for the community and its residents.” Plaintiff’s Exhibit 68. He further promised to repair all damages to her personal property and to replace the landscaping destroyed by the construction. “We will make every effort to repair any damage to your home that we may have caused during the installation of this new system. Additionally, the landscaping in your yard will be returned to its original condition or as close thereto as humanly possible.” Plaintiff’s Exhibit 68. The Plaintiff renewed her requests of the Defendant to address the problems caused by the construction and operation of the FAST system. Plaintiff’s Exhibits 69,70 and 73.

Based upon the credible testimony and photographic and written documentation offered by the Plaintiff, the Court finds the Defendant failed to replace the landscaping and make the additional repairs or replacement of damaged items in the Plaintiff’s manufactured home as promised by the Defendant’s employee. Plaintiff’s Exhibits 15, 18, 32, 34, 38, 50-56, 60. The Court further finds that the Defendant knew or should have known that the construction of the FAST system compressor shed on the Plaintiff’s Premises, with the attendant odors, noises, and obstruction of the view, would cause a long-term inconvenience to the Plaintiff.

The Court finds, however, that the Plaintiff has failed to meet her burden as to the second prong of the misrepresentation standard, that is, reliance to her detriment based upon the Defendant’s misrepresentation of a material fact. The Plaintiff made a timely M.G.L. c. 93A demand from the Defendant on or about July 1, 1999. Plaintiff’s Exhibit 73. The Plaintiff then brought suit against the Defendant on March 14, 2001. Accordingly, absent specific testimony or evidence as to the detriment that the Plaintiff suffered based upon the Defendant’s misrepresentation, the Court must find for the Defendant on the Plaintiff’s misrepresentation claim.

The Court also finds that the Plaintiff has failed to show that the Defendant made a statement of material fact to the Plaintiff with knowledge of its falsity as required to prove fraudulent misrepresentation. Accordingly, the Court finds for the Defendant on the Plaintiff’s claim for fraudulent misrepresentation.

Violation of 940 C.M.R. 10.02 and 10.03

The Plaintiff has alleged that the Defendant violated Massachusetts regulations pertaining to Manufactured Housing Communities by operating a private septic system which failed to comply with the provisions of 310 C.M.R. 15.00, the State Environmental Code.[12]

The Court finds that paragraph 42 of the Lease subjects the provisions of the Lease to M.G.L. c. 140, s.32F, et. seq. M.G.L. c. 140, s.32S provides: “The attorney general from time to time shall promulgate such rules and regulations as he deems necessary

for the interpretation, implementation, administration and enforcement of sections thirty-two A to thirty-two S, inclusive. Such authority shall be in addition to, and not in derogation of, the attorney general’s authority to promulgate rules and regulations under section two of chapter ninety-three A with respect to manufactured housing communities.”

940 C.M.R. 10.02(3) provides: “It shall be an unfair and deceptive act or practice, in violation of M.G.L. c. 93A, s.2, for an operator…to fail to comply with any applicable provision of M.G.L. c. 140, s.s.32A through 32S, 940 C.M.R. 10.00, or any other local, state, or federal statute, rule, or regulation which generally or specifically provides protection to or for residents or prospective residents of manufactured housing communities…”

940 C.M.R. 10.03(3) provides, in pertinent part: “Any violation of any applicable local, state, or federal statute, regulation or ordinance governing landlord-tenant relations…with regard to manufactured housing shall constitute a violation of M.G.L. c. 93A.”

The Plaintiff alleges that the FAST septic system on and adjacent to the Plaintiff’s leased property failed to comply with the State Environmental Code, 310 C.M.R. 15.00. At trial, the Plaintiff failed to present evidence or testimony as to which specific provisions of 310 C.M.R. 15.00 the Defendant allegedly breached.

Brian Flynn, the Health Agent for the Town of Norwell, testified that excessive odors at the Premises would violate 310 C.M.R. 7.09.[13] He further testified to the State Sanitary Code at 105 C.M.R. 410.020[14] and 105 C.M.R. 410.300.[15] The Plaintiff testified that the Board of Health condemned the Premises for the period of August 25, 1999 through September 27, 1999 due to excessive odors emanating from the FAST system.

In a letter dated August 26, 1999, Flynn on behalf of the Board of Health notified the Defendant of the Board’s decision to condemn the Premises due to excessive odors. “In response to continuous odor problems at Unit #17 at the Glen Mobil [sic] Home Park, the Norwell Board of Health has determined that the unit is uninhabitable and had voted to condemn the unit…The odor problems have been in existence since the park’s new septic system was hooked up several months ago…In addition to the odor problems, the blower motors for the fast [sic] treatment create a constant noise problem outside her bedroom window.” Plaintiff’s Exhibit 85. Based upon Flynn’s representations that excessive odors would violate 310 C.M.R. 7.09, and evidence indicating that the Premises was condemned pursuant to 105 C.M.R. 410.020 and 105 C.M.R. 410.300 as a result of those odors, the Court finds that the conditions at the Premises violated the provisions of 310 C.M.R. 7.09 and 105 C.M.R. 410.300 and, consequently, 940 C.M.R. 10.02 and 10.03.[16] Within this claim, the Plaintiff has alleged a violation of M.G.L. c. 93A. In any action commenced under M.G.L. c. 93A, if the Court finds for the petitioner, “recovery shall be in the amount of actual damages or twenty-five dollars, whichever is greater, up to three but not less than two times such amount if the court finds that the use or employment of the act or practice was a willful or knowing violation of said section 2 or that the refusal to grant relief upon demand was made in bad faith with knowledge or reason to know that the act or practice complained of violated section 2.”

M.G.L. c. 93A, s.9(3). Further, “[I]f the Court finds in any action commenced hereunder that there has been a violation of section 2, the petitioner shall, in addition to other relief provided for by this section and irrespective of the amount in controversy, be awarded reasonable attorney’s fees and costs incurred in connection with said action.” M.G.L. c. 93A, s.9(4).

The Court finds that the Defendant’s breach of 940 C.M.R. 10.02 and 10.03 constitutes a violation of M.G.L. c. 93A. The Court finds that the Plaintiff suffered actual damages in the amount of $2,000.00, which represents her out-of-pocket expenses while her manufactured unit was condemned due to excessive odors and noise. As that amount is greater than statutory damages, the Court awards the Plaintiff actual damages in the amount of $2,000.00 for the Defendant’s violations of 940 C.M.R. 10.02 and 10.03, plus costs and reasonable attorney’s fees. As the Court finds that the Defendant’s failure to correct these violations was willful, the Court doubles the damage award to $4,000.00.

The Implied Warranty of Habitability Claim

The implied warranty of habitability is the landlord’s promise that the premises will meet certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. The implied warranty of habitability applies to all landlords, including owners of manufactured housing communities who lease land and services but who do not lease the tenants’ manufactured homes. Cape Ann Camp Site, Inc., v. Kangas, Northeast Housing Court Docket No. 03-SP-00994 (Nov. 21, 2005)(Kerman, J.). A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the tenant is in material violation of the minimum standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). A landlord must have actual or constructive notice of the condition creating the violation. McKenna v. Begin, 3 Mass.App.Ct. 168 (1975). Damages are assessed from the date the landlord had notice of the condition of disrepair. Berman & Sons v. Jefferson, 379 Mass. 196 (1979). The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises as warranted and the fair rental value of the premises with the defects. McKenna v. Begin, supra at 172. The Court finds that the Defendant had notice of the conditions of the Premises as the Defendant initiated the construction of the private septic system on and adjacent to the Plaintiff’s Lot #17 and was intimately involved with the

initial design, permitting, start-up and maintenance of the system during all times relevant to this action, commencing in 1996.

The Plaintiff alleges numerous violations of the State Sanitary Code caused by the Defendant. The Plaintiff testified to adverse conditions at the Premises including the following: 1) the noise and vibrations related to the construction of the system; 2) the inherently dangerous access coupled with limitations and outright prohibitions to the Plaintiff’s Premises during the excavations for the underground chamber; 3) odors and noise from the operation of the FAST septic system; and, 4) interruption of water supply. Plaintiff’s Exhibits 67, 69, 70, 82, 84-86. Further, notwithstanding the Defendant’s actual knowledge of the conditions at the Premises due to the construction and initial start-up of the system in September 1998 through September 1999, the Plaintiff gave written notice of the conditions to the Defendant. Plaintiff’s Exhibits 67, 69, 73. The Defendant’s design engineer, David Hickox, also wrote to Brian Flynn, the Health Agent for the Town of Norwell, concerning the odors and noise and possible solutions for soundproofing. Defendant’s Exhibit W. The Defendant also received notices from the Town of Norwell Board of Health concerning the conditions at the Premises, particularly the odors and noise from the air compressor shed. Plaintiff’s Exhibits 73, 83-87. The Norwell Board of Health condemned the Premises for the period of August 25, 1999 through September 27, 1999, Plaintiff’s Exhibits 84, 88, resulting in the Defendant’s paying for the Plaintiff’s alternate housing for that period of time.

The Court finds that the fair rental value of the Premises for the period of September 1, 1998, the date the construction commenced, through December 31, 1998 was $11.95 per day.[17]

The Court further finds that the fair market value of the Premises was decreased by seventy per cent (70%) during this period as a result of the aggregate conditions on the Premises. These conditions included: 1) the noise and vibrations related to the construction of the system; 2) the inherently dangerous access coupled with limitations and outright prohibitions to the Plaintiff’s Premises during the excavations for the underground chamber; 3) odors from the construction and operation of the FAST septic system; and, 4) interruption of water supply. The Court finds that conditions in the aggregate were outstanding from September 1, 1998, the date the construction commenced, through August 24, 1999, the day immediately preceding the condemnation of the Premises. Accordingly, the Court finds the Plaintiff is entitled to a rent abatement for the period of September 1, 1998 through December 31, 1998[18] in the amount of $1,021.14.[19]

The Court further finds that the fair market value of the Premises for the period of January 1, 1999 through August 24, 1999, the date prior to the condemnation of the Premises, was $12.55 per day.[20] The Court further finds that the fair market value of the Premises was decreased by seventy per cent (70%) during this period as a result of the aggregate conditions on the Premises. These conditions included: 1) the noise and vibrations related to the construction of the system; 2) the inherently dangerous access coupled with limitations and outright prohibitions to the Plaintiff’s Premises during the excavations for the underground chamber; 3) odors and noise from the operation of the FAST septic

system; and, 4) interruption of water supply. The Court finds that conditions in the aggregate were outstanding from September 1, 1998, the date the construction commenced, through August 24, 1999, the day immediately preceding the condemnation of the Premises. Accordingly, the Court finds the Plaintiff is entitled to a rent abatement for the period of January 1, 1999 through August 24, 1999[21] in the amount of $2,074.44.[22]

The Court further finds that the fair market value of the Premises was decreased by thirty per cent (30%) during the period of September 28, 1999, the day after the condemnation order was lifted, through November 6, 2006, the date of trial, as a result of the aggregate conditions on the Premises. These conditions included continuing noise, vibrations of steel chamber covers, and odors resulting from the operation of the FAST septic system. The Court finds that conditions in the aggregate were outstanding from September 28, 1999, the day after the condemnation order was lifted, through November 6, 2006, the day of trial. Accordingly, the Court finds the Plaintiff is entitled to a rent abatement in the amount of $11,817.43.[23] The Plaintiff is awarded damages for the Defendant’s breach of the implied warranty of habitability in the total amount of $14,913.01.[24]

Plaintiff’s Quiet Enjoyment Claim Pursuant to M.G.L. c. 186, s.14

The Plaintiff alleges that the Defendant breached the covenant of quiet enjoyment as to her Premises. The alleged breaches included the following during the construction and start-up of the community septic system: 1) removing her landscaping and other personal property from the Premises at the start of construction; 2) prohibiting or extremely limiting access to her manufactured home; 3) interruption of utilities; 4) failing to correctly install and maintain the FAST system (including failing to adequately soundproof the compressor shed and filter the ventilation system) so as to minimize the generation of noise and odors; 5) obstructing her view of wetlands from the front of her manufactured home; and 6) failing to reimburse her for out-of-pocket expenses incurred while she was unable to occupy the Premises. M.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, other than a room or rooms in a hotel, but including a manufactured home or land therefor…who directly or indirectly interferes with the furnishing by another of such utilities and services…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 months’ rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee…” A landlord violates M.G.L. c. 186, s.14 where he had notice, or reason to know of the serious conditions on or adjacent to the tenant’s premises, and failed to take appropriate corrective measures. Al Ziab v. Mourgis, 424 Mass. 847, 850-851 (1997); Cruz Management Co., Inc. v. Thomas, 417 Mass. 782 (1994).

The covenant of quiet enjoyment applies to all landlords, including owners of manufactured housing communities who lease land and services but who do not lease the tenants’ manufactured homes. Cape Ann Camp Site, Inc., v. Kangas, Northeast Housing Court Docket No. 03-SP-00994 (Nov. 21, 2005)(Kerman, J.). “It cannot be doubted that the land and services provided to residents of a manufactured housing community are provided for dwelling purposes, and that drinking, cooking and bathing water, safe lighting, removal of rubbish and of snow and ice, and functioning septic and sewer systems, which are provided in accordance with the requirements of the State Sanitary Code and other housing laws, are facilities that are ‘vital to the use of the premises for residential purposes.'” Cape Ann Camp Site, Inc., v. Kangas, Northeast Housing Court Docket No. 03-SP-00994 (Nov. 21, 2005)(Kerman, J.), quoting Boston Housing Authority v. Hemingway, 363 Mass. 184, 199 (1973).

The Court finds that the conduct of the Defendant caused a serious and continuing interference with the Plaintiff’s quiet enjoyment of her Premises. The Court finds that the Defendant, with no advance notice or consideration to the Plaintiff, removed the Plaintiff’s landscaping. Further, the Court has found from the Plaintiff’s unchallenged testimony that the Defendant blocked or severely restricted the Plaintiff’s access to her home. The Court has also found from the Plaintiff’s unchallenged testimony that both electricity and water were intermittently cut off from the Premises while the FAST system was under construction. In addition to the above, the Court has found from the testimony of both the Plaintiff and the Board of Health Agent that loud noises and noxious odors emanated from the air compressor shed and pipes constructed on the Premises by the Defendant. Finally, the Defendant located the compressor shed, a ten-foot tall building, directly on the front lawn of the Plaintiff’s manufactured home, obstructing her view of the wetland area. Accordingly, the Court finds that the Plaintiff has sustained her burden of proof as to Defendant’s breach of the covenant of quiet enjoyment. See Jones & Spencer v. Abbey Landmark Square, L.L.C., Boston Housing Court Docket No. 01-CV-01330 (Sept. 2, 2006)(Winik, J.)(finding the presence of strong odors at the premises breached the covenant of quiet enjoyment); Singleton v. Graham, Boston Housing Court Docket No. 98-SP-00115 (Feb. 2, 1998)(Winik, J.)(finding interruptions in service of water and electricity, albeit for short periods of time,

constitute a breach of the covenant of quiet enjoyment).

In calculating the damages due the Plaintiff for Defendant’s breach of the covenant of quiet enjoyment, the Court must under M.G.L. c. 186, s.14 compare the Defendant’s actual damages versus the statutory damages permitted under the statute.[25] The Plaintiff presented evidence and the Court finds that she suffered actual and consequential damages for the period between the commencement of construction by the Defendant on or about September 1, 1998 and the start of trial on November 6, 2006, calculated as follows: a) $27,000.00 for unreimbursed expenses for landscaping materials, including bird houses and a birdbath; and b) $2,000.00[26] for unreimbursed living expenses incurred while the Premises was condemned by the Board of Health between August 26, 1999 and September 27, 1999, for actual damages in the aggregate of $29,000.00. Pursuant to the statute, the Court compares this amount with the statutory damages amount of $1,353.54, which represents three times the average monthly rent of $451.18.[27] Accordingly, as $29,000.00 is greater than three months’ rent, the Court awards damages to the Plaintiff for the period of September 1, 1998 through November 6, 2006 in the amount of $29,000.00, plus reasonable costs and attorney’s fees.

Within fourteen (14) days of the date that judgment enters, counsel for the Plaintiff shall file with this Court a Motion for Counsel Fees, Costs and Expenses in accordance with the procedure proscribed in Yorke Mgmt v. Castro, 406 Mass. 17, 20 (1989). After hearing, the Court shall award reasonable attorney’s fees and costs nunc pro tunc to the date of this Decision.

Breach of the Covenant of Residential Use

The Plaintiff has alleged that the Defendant’s installation and maintenance of a sewage treatment unit on her leased Premises violates the covenant of residential use contained in the Lease . The Lease provides: “The leased space shall be used only for the site of a single mobile home for residential purposes only and for no other.” Plaintiff’s Exhibit 66, p.4.

A covenant of residential use arises only if it is expressly included in the agreement between the parties. See Woodvale Condominium Trust v. Scheff, 27 Mass. App. Ct. 530, 533 (1989) (recognizing a condominium association’s interest in limiting the activities of its residents through the use of restrictions in the master deed). The Appeals Court defines residential purposes in the following manner: “…residential use connotes use in connection with private lives of persons: where they sleep, eat, bathe, relax, entertain, and raise families. ‘Residential

purposes’ excludes the conduct of business and occupation, except by way of dispensation.” Id. at 534. In the Woodvale, case, the Appeals Court found that conducting a family day care business, which service required a license and for which people paid a fee, violated the restrictive covenant of residential use in the master deed. See id.

The Plaintiff failed to cite any cases in which a landlord was found to be in violation of a residential use covenant, nor was the Court able to find such a case. While the Court expressly makes no specific finding in this decision, arguably a septic system that serves an entirely residential complex may comply with the Massachusetts Appeals Court’s residential purpose test as outlined in Woodvale. See id. Accordingly, the Court finds for the Defendant on the Plaintiff’s claim for breach of the covenant of residential use.

Plaintiff’s M.G.L. c. 93A Claim

The Plaintiff has alleged that the Defendant has violated certain provisions of M.G.L. c. 93A and the regulations of the Attorney General’s Office related thereto by: 1) breaching the Lease between the parties; 2) breaching the implied warranty of habitability; 3) breaching the covenant of quiet enjoyment pursuant to M.G.L. c. 186, s.14; and, 4) negligently misrepresenting to the Plaintiff the extent of the construction project, the damage it would cause to the Premises, and the remedies the Defendant would pursue to correct that damage.[28] The Court finds that the Defendant is subject to M.G.L. c. 93A, as the leasing of lots for manufactured homes is trade or commerce within the meaning of the statute. Commonwealth v. DeCotis, 366 Mass. 234, 239 (1974). The Court further finds that on or about July 1, 1999, the Plaintiff mailed a demand for relief to the Defendant, setting forth her allegations as described in this decision and requests for relief pursuant to M.G.L. c. 93A. Plaintiff’s Exhibit 73. In its response dated August 2, 1999, the Defendant denied the Plaintiff’s request for relief. Plaintiff’s Exhibit 74.

Breach of Lease Claim

The Plaintiff has claimed and the Court has found that the Defendant breached the Lease between the parties. The Plaintiff further claims that said breach also violates M.G.L. c. 93A. M.G.L. c. 93A, s.2(a) states that “Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” Further, under M.G.L. c. 93A, s.9(1), “Any person… who has been injured by another person’s use or employment of any method, act or practice declared to be unlawful by section two… may bring an action in the superior court, or in the housing court….”. Subsection (3) states, in pertinent part: “At least thirty days prior to the filing of any such action, a written demand for relief, identifying the claimant and reasonably describing the unfair or deceptive act or practice relief upon and the injury suffered, shall be mailed or delivered to any prospective respondent. … In all other cases, if the court finds for the petitioner, recovery shall be in the amount of actual damages or twenty-five dollars, whichever is greater; or

up to three but no less than two times such amount if the court finds that the use or employment of the act or practice was a willful or knowing violation of said section two or that the refusal to grant relief upon demand was made in bad faith with knowledge or reason to know that the act or practice complained of violated section two.”

Under M.G.L. c. 93A, s.(2)(c) “The attorney general may make rules and regulations interpreting the provisions of subsection 2(a) of this chapter…” Pursuant to the Attorney General’s Consumer Protection Regulations codified at 940 C.M.R. 3.17(1), “It shall be an unfair or deceptive act or practice for an owner to…(b) Fail, during the terms of the tenancy, after notice is provided in accordance with M.G.L. c. 111, s.127L, to (1) remedy a violation of law in a dwelling unit which may endanger or materially impair the health, safety, or well-being of the occupant, or (2) maintain the dwelling unit in a condition fit for human habitation; provided, however, that said violation of law was not caused by the occupant or others lawfully upon said dwelling unit;…(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; (f) Fail to provide services and/or supplies after the making or any representation or agreement, that such services would be provided during the term or any portion of the term of the tenancy agreement;…[or] (i) 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 has found that paragraph 42 of the Lease subjects the Lessor to M.G.L. c. 140, s.32F, et. seq. 28 In earlier portions of this Decision, the Court has noted the testimony of David Hickox, a professional engineer, and documentary evidence related to the planning, construction, and maintenance of the FAST system. There is no dispute that the construction of the new community septic system for The Glen was an involved three-year process of design, consultation and permitting with the Town of Norwell Board of Health. Defendant’s Exhibits A-E, J, K, M-P. According to Hickox’s unchallenged testimony, the Defendant made a deliberate decision to locate the FAST system directly on and adjacent to the Plaintiff’s Premises. The Court finds, however, that the Defendant knew or should have known that the Plaintiff had no viable option to relocate the manufactured home from Lot#17 once construction commenced on the underground septic system and, further, that the Plaintiff would be unable to sell her manufactured unit once the system had been completed and the compressor shed located in her front yard.

The Defendant had reserved to itself the right to relocate the Plaintiff’s unit at its own risk and expense. Plaintiff’s Exhibit 66, p.18. It chose not to do so, forcing the Plaintiff to suffer the inconvenience of the construction and the loss of the full value of the manufactured housing unit. Further, the Plaintiff testified credibly and without challenge that she was not given informed notice as to the start date and nature of the septic facility, and therefore she was given no opportunity to relocate the unit prior to the construction of the FAST system or to take alternate action to solve the problem. The Court finds that the

Defendant’s decision to locate the FAST system and its components, including the air compressor shed, on and adjacent to the Plaintiff’s Premises, was a willful and knowing violation of M.G.L. c. 93A, s.2, in breach of the Lease and 940 C.M.R. 10.03(8). See McDonough v. Cullinane, Boston Housing Court Docket No. 98-SP-04525 (May 14, 1999)(Winik, J.); Anderson v. Lemus and Rodriguez, Boston Housing Court Docket No. 98-SP-04443 (Oct. 13, 1998)(Winik, J.).

The Court has determined that the Plaintiff suffered damages in the amount of $90,000.00 for the diminution of value of her home due to the Defendant’s breach of the Lease. Pursuant to M.G.L. c. 93A, s.9(3), the Court awards the Plaintiff damages in the amount of $180,000.00 ($90,000.00 x 2 = $180,000.00) plus reasonable attorney’s fees and costs pursuant to M.G.L. c. 93A, s.4. Within fourteen (14) days of the date of this Decision, the counsel for the Plaintiff shall mark for hearing and file with this Court a Motion for Award of Counsel Fees, Costs and Expenses in accordance with the procedure prescribed in Yorke Mgmt. v. Castro, 406 Mass. 17, 20 (1989). After hearing the Court shall award reasonable attorney’s fees and costs nunc pro tunc to the date of this Decision.

Breach of the Implied Warranty of Habitability and the Covenant of Quiet Enjoyment

In this Decision, the Court has awarded the Plaintiff actual damages and reasonable attorney’s fees for the Defendant’s breach of the covenant of quiet enjoyment pursuant to M.G.L. c. 186, s.14. As the underlying facts for the award of the quiet enjoyment claim were similar to the facts for the implied warranty of habitability claim, damages were only awarded to the Plaintiff on the quiet enjoyment claim. The Court now finds that the Defendant willfully and knowingly violated M.G.L. c. 93A, s.2 by: 1) permitting vibrations, noise and odors to emanate from the construction site, which seriously impaired the habitability of the Premises and interfered with the Plaintiff’s quiet enjoyment of the home; and 2) damaging the Plaintiff’s personal property without repairing said damage. The Court, however, will not award additional damages to the Defendant as same would be duplicative of the damages awarded for the Defendant’s willful and knowing breach of the Lease pursuant to M.G.L. c. 93A. McDonough v. Cullinane, Boston Housing Court No. 98-SP-04525 (May 14, 1999)(Winik, J.).

The Plaintiff’s Nuisance Claim

The Plaintiff has alleged that the Defendant, in installing and maintaining a private community septic system, including the operation of a compressor shed on and near her Premises, constitutes a nuisance interfering with the Plaintiff’s use and enjoyment of her property.

A private nuisance action “is the remedy for invasion of a property right. To bring a private nuisance action, a plaintiff must have some interest in the property affected.” Connerty v. Metropolitan District Commission, 398 Mass. 140, 147 (1986). A tenant’s interest in property and an individual’s interest in personal property are both adequate to support private nuisance

claims. Id.; Doe v. New Bedford Housing Authority, 417 Mass. 273, 288 (1994); Sacks & Sons, Inc. v. Metropolitan District Commission, 20 Mass.App.Ct. 45, 47 (1985).

Although tenants have a property interest sufficient to support a claim of nuisance, see Connerty, 398 Mass. at 149; Doe, 417 Mass. at 288; Sacks & Sons, Inc. 20 Mass.App.Ct. at 47, a tenant may not make a claim against his or her landlord for a nuisance allegedly caused by that landlord. Doe, 417 Mass. at 288-89. “The private nuisance standard…requires two different parcels of property: one on which the nuisance condition exists, and another whose occupants are burdened by the nuisance. Thus, although a tenant has a sufficient interest in rented property to bring a nuisance suit for interference with that property…the suit can only be brought against the owner of some other piece of property. A tenant cannot sue his own landlord for a nuisance on the property that the tenant rents from the landlord.” Id. The Supreme Judicial Court continued in a footnote: “A suit for the breach of the covenant of quiet enjoyment is the proceeding a tenant may bring against his landlord for interference with the use and enjoyment of the rented property.” Id. at 289 n.16.

The Plaintiff is the Defendant’s tenant. Accordingly, the Plaintiff cannot assert a nuisance claim against the Defendant for the construction project including the operation of the compressor shed in her capacity as a tenant. See id. at 288-289. Rather, the Plaintiff’s claims as to the Defendant’s alleged interference with the use and enjoyment of her property must be addressed in her claim pursuant to M.G.L. c. 186, s.14, the quiet enjoyment statute. Therefore, the Court DISMISSES the Plaintiff’s nuisance claim against the Defendant.

Unpaid Rent[29]

The Plaintiff testified, and the Court finds, that she has withheld her rent from February 2003 through the date of trial on November 6, 2006 due to the conditions at the Premises. The Court calculates that the Plaintiff has withheld rent in the amount of $23,001.07 for that period, calculated as follows: $464.07 per month for the months of February through December 2003; $5,847.26 annual rent for 2004; $6,139.62 annual rent for 2005; and $537.22 per month for the months of January through November 2006. Accordingly, pursuant to its authority under Mass.R.Civ.P. 54(c), the Court finds that the Defendant is entitled to unpaid rent for the period of February 2003 through November 2006 in the amount of $23,001.07.

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 claim for breach of the Lease and breach of the covenant of good faith and fair dealing in the amount of $90,000.00, doubled to $180,000.00 pursuant to M.G.L. c. 93A, plus reasonable costs and attorney’s fees.

2. Judgment enter for the Defendant on the Plaintiff’s claim

for negligent misrepresentation.

3. Judgment enter for the Defendant on the Plaintiff’s claim for fraudulent misrepresentation.

4. Judgment enter for the Plaintiff on her claim for breach of 940 C.M.R. 10.02 and 10.03 in the amount of $2,000.00, doubled to $4,000.00, plus reasonable costs and attorney’s fees, but no duplicative damages are awarded.

5. Judgment enter for the Plaintiff on her claim for breach of the implied warranty of habitability in the amount of $14,913.01, but no duplicative damages are awarded.

6. Judgment enter for the Plaintiff on her claim for breach of the covenant of quiet enjoyment pursuant to M.G.L. c. 186, s.14 in the amount of $29,000.00, plus reasonable costs and attorney’s fees.

7. Judgment enter for the Defendant on the Plaintiff’s claim for breach of the covenant of residential use.

8. Judgment enter for the Defendant on the Plaintiff’s claim for nuisance.

9. Judgment enter for the Defendant for unpaid rent in the amount of $23,001.07.

10. The foregoing orders for judgment paragraphs 1 through 9 result in a net judgment in favor of the Plaintiff in the amount of $185,998.93, plus costs and attorney’s fees.

11. The Plaintiff shall, within sixty (60) days of the date the Defendant pays to the Plaintiff the manufactured home’s fair market value of $90,000.00, vacate the Premises and convey all right, title and interest in the manufactured home over to the Defendant, free and clear from any and all encumbrances. Further, following payment of $90,000.00 by the Defendant, the Plaintiff shall pay for the fair and reasonable use and occupancy of the Premises until the Plaintiff vacates the Premises. Nothing herein shall be construed as creating a tenancy between the parties after the payment ordered herein has been made by the Defendant.

12. Within fourteen (14) days of the date that judgment enters, the Plaintiff shall file with this Court and mark for hearing a Motion for Counsel Fees, Costs, and Expenses in accordance with the procedure prescribed in Yorke Mgmt. v. Castro, 406 Mass. 17, 20 (1989). After hearing, the Court shall award reasonable attorneys’ fees and costs nunc pro tunc to the date of this Decision.

13. The Defendant may file with this Court and mark for hearing a Motion to Determine Fair and Reasonable Use and Occupancy.

14. Execution to issue thirty (30) days from the date judgment enters.

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[1] The Defendant has advised the Court that the corporate Defendant is Hometown America Management, Inc. The Court, sua sponte, requests that the Clerk’s Office make the appropriate corrections to the docketing.

[2] The Lease was executed on October 4, 1995, and expired pursuant to its terms on December 31, 2001. Plaintiff’s Exhibit 66.

[3] The Lease further requires the Plaintiff to pay “additional rents”, which may include prorated excess property taxes and $9.00 per month for a License Fee required by M.G.L. c. 140, s.32G. Plaintiff’s Exhibit 66, p.3. Pursuant to the Lease, the Lessor is also entitled to reimbursement of attorney’s fees and court costs incurred to enforce any provision of the Lease. Plaintiff’s Exhibit 66, p.38.

[4] A certificate of compliance issued by the Town of Norwell on December 30, 2000, indicates the construction project was commenced in September 1998, and the Court so finds. Plaintiff’s Exhibit 80.

[5] Latouf contacted Steger after Hometown purchased The Glen in early 1998. Plaintiff’s Exhibit 79.

[6] The Court notes a discrepancy in the accounting submitted by the Plaintiff. In her accounting, Latouf states the rent due for the period of November 1998 through November 2006 is $42,492.82 and that $21,737.82 had been paid to the Defendant, with $20,655.00 placed in escrow. The Court finds that the actual difference between the rent due as calculated by the Plaintiff and the rent paid equals $20,755.00. Further, the Court’s calculations indicate that the total rent due for the period of November 1998 through November 2006 equals $43,939.08, based upon the original annual base rent of $3,769.20 and five per cent (5%) annual increases as provided in the Lease.

[7] Mr. Hickox had been a third-party defendant in this case. He is the principal designer for the septic system installed for The Glen.

[8] 310 C.M.R. 7.09 provides, in pertinent part: “No person having control of any dust or odor generating operations…shall permit emissions therefrom which cause or contribute to a condition of air pollution…No person responsible for an area where construction or demolition has taken place shall cause, suffer, allow, or permit particulate emissions therefrom to cause or contribute to a condition of air pollution by failure to seed, pave, cover, wet, or otherwise treat said area to prevent excessive emissions of particulate matter….”. Plaintiff’s Exhibit 104. The Court took judicial notice of these regulations.

[9] “Therefore, the diminution in value to the subject property due to the location of the sewage treatment facility, as of October 19, 2006, was $90,000.00.” Plaintiff’s Exhibit 105.

[10] The Court notes that paragraph 18 of the Lease further outlines the mechanism for any relocation of the Plaintiff as follows: “In the event of such relocation of Lessee’s mobile home, Lessor shall pay to Lessee the sum of $500.00 to compensate Lessee for packing its personal belongings and readying the mobile home to

be moved, all of which Lessee agrees to perform. Lessor agrees to provide for the relocated mobile home new skirting, to place such mobile home on a concrete pad and to install a 3′ x 5′ deck on the mobile home…Lessor shall arrange and pay for a third party inspection by a licensed home inspector and/or appraiser to determine the condition of the mobile home and its value prior to relocating. Prior to relocation, Lessor shall either bond or provide insurance naming Lessee as an additional loss payee in an amount equal to the then value of the mobile home prior to relocation;…In no event shall Lessor be entitled to relocate Lessee’s mobile home hereunder for any reason other than in furtherance of the economic interests of Lessor and pursuant to a plan or strategy and specifically excluding relocation based on any reprisals, bad faith or personal animosity toward Lessee.”

[11] See Ward v. Perna, 69 Mass App.Ct. 532 (2007) (The Defendants purchased a cottage from the Plaintiff and leased the parcel of land on which the cottage was located from the Plaintiff. During the tenancy, the Defendants made improvements to the cottage. The Plaintiff initiated suit for possession. The Appeals Court found “…[T]he substantial renovations made by the [Defendants]…caused it to be so attached to the ground that…it could not be moved without materially damaging the building.” 69 Mass.App.Ct. at 537, citing Stone v. Livingston, 222 Mass. 192, 194-95 (1915)(stating that chattel becomes a fixture when it is “so annexed to the property that it cannot be removed without material injury to the real estate or to itself…”). The Court then awarded the Defendants damages in the amount of $120,000.00, which represented the value of the cottage at the time of trial.)

[12] The Court took judicial notice at trial of 310 C.M.R. 15.00.

[13] 310 C.M.R. 7.09 provides, in pertinent part: “No person having control of any dust or odor generating operations…shall permit emissions therefrom which cause or contribute to a condition of air pollution…No person responsible for an area where construction or demolition has taken place shall cause, suffer, allow, or permit particulate emissions therefrom to cause or contribute to a condition of air pollution by failure to seed, pave, cover, wet, or otherwise treat said area to prevent excessive emissions of particulate matter….”. Plaintiff’s Exhibit 104. The Court took judicial notice of these regulations.

[14] 105 C.M.R. 410.020 provides, in pertinent part: “A Condition Making a Unit Unfit for Human Habitation is a condition meeting the standard set forth in the Massachusetts General Laws under which a board of health may justify closing down, condemning, or demolishing a dwelling or dwelling unit. It shall mean a violation which poses such immediate harm or threat of harm to an occupant or to the public that other legal remedies cannot be reasonably expected to bring about removal of the condition with sufficient speed to prevent the serious harm or injury to the occupants or to the public.”

[15] 105 C.M.R. 410.300 provides: “The owner shall provide,

for each dwelling, a sanitary drainage system connected to the public sewerage system, provided, that if, because of distance or ground conditions, connection to a public sewerage system is not practicable, the owner shall provide, and shall maintain in a sanitary condition, a means of sewage disposal which is in compliance with 310 C.M.R. 15.00…”.

[16] Mass.R.Civ.P. 54(c) provides, in pertinent part: “…[E]very final judgment shall grant the relief to which the party is entitled, even if the party has not demanded such relief in his pleadings.” Therefore, although the Plaintiff alleged that only the Defendant’s breach of 310 C.M.R. 15.00 violated 940 C.M.R. 10.02 and 10.03, the Court, pursuant to Mass.R.Civ.P. 54(c), finds that the Defendant’s failure to comply with the provisions of 310 C.M.R. 7.09 and 105 C.M.R. 410.300 constitutes a breach of 940 C.M.R. 10.02 and 10.03.

[17] The per diem rental rate is calculated as follows: $4,363.32 annual rent ? 365 days = $11.95 per day.

[18] Although the Plaintiff’s mobile home was condemned for the period of August 25, 1999 through September 27, 1999 as a result of the odors and noise from the FAST system, Plaintiff’s Exhibit 84, the Court does not abate the Plaintiff’s rent for that period, as she testified that the Defendant paid for alternate accommodations.

[19] $11.95 daily rental rate x 70% = $8.37 x 122 days (the number of days from September 1, 1998 through December 31, 1998) = $1,021.14.

[20] The per diem rental rate is calculated as follows: $4,581.49 annual rent ? 365 days = $12.55 per day.

[21] Although the Plaintiff’s mobile home was condemned for the period of August 25, 1999 through September 27, 1999 as a result of the odors and noise from the FAST system, Plaintiff’s Exhibit 84, the Court does not abate the Plaintiff’s rent for that period, as she testified that the Defendant paid for alternate accommodations.

[22] $12.55 daily rental rate x 70% = $8.79 x 236 days (the number of days from January 1, 1999 through August 24, 1999) = $2,074.44.

[23] The rent abatement for the period of September 28, 1999 through November 6, 2006, is calculated by adding the annual rent abatements as follows:

1999: $4,581.49 annual rent ? 365 days = $12.55/day x 30% = $3.77 daily abatement x 95 days (the number of days between September 28, 1999 and December 31, 1999) = $358.15.

2000: $4,810.56 annual rent ? 366 days (as 2000 was a leap year) = $13.14/day x 30% = $3.94 daily abatement x 366 days (the number of days in 2000) = $1,442.04.

2001: $5,051.09 annual rent ? 365 days = $13.84/day x 30% = $4.15 daily abatement x 365 days (the number of days in 2001) = $1,514.75.

2002: $5,303.64 annual rent ? 365 days = $14.53/day x 30% = $4.36 daily abatement x 365 days (the number of days in 2002) = $1,591.40.

2003: $5,568.82 annual rent ? 365 days = $15.26/day x 30% = $4.58 daily abatement x 365 days (the number of days in 2003) = $1,671.70.

2004: $5,847.26 annual rent ? 366 days (as 2004 was a leap year) = $15.98/day x 30% = $4.79 daily abatement x 366 days (the number of days in 2004) = $1,753.14.

2005: $6,139.62 annual rent ? 365 days = $16.82/day x 30% = $5.05 daily abatement x 365 days (the number of days in 2005) = $1,843.25.

2006: $6,446.60 annual rent ? 365 days = $17.66/day x 30% = $5.30 daily rent abatement x 310 days (the number of days between January 1, 2006 and November 6, 2006, the date of trial) = $1,643.00.

$358.15 (1999) + $1,442.04 (2000) + $1,514.75 (2001) + $1,591.40 (2002) + $1,671.70 (2003) + $1,753.14 (2004) + $1,843.25 (2005) + $1,643.00 (2006) = $11,817.43.

[24] $1,021.14 (for the period of September 1, 1998 through December 31, 1998) + 2,074.44 (for the period of January 1, 1999 through August 24, 1999) + $11,817.43 (for the period of September 28, 1999 through November 6, 2006) = $14,913.01.

[25] M.G.L. c. 186, s.14 in relevant part: “Any person who commits any act in violation of this section shall also 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.”

[26] The Court finds that the Plaintiff had unreimbursed expenses of $2,500.00, less $500.00 for food, for a total of $2,000.00 due her from the Defendant.

[27] The average monthly rent is calculated as follows: $1,454.44 for the period of September through December 1998 (at the rate of $363.61 per month) + $4,581.49 (representing total rent for 1999) + $4,810.56 (representing total rent for 2000) + $5,051.09 (representing total rent for 2001) + $5,303.64 (representing total rent for 2002) + $5,568.82 (representing total rent for 2003) + $5,847.26 (representing total rent for 2004) + $6,139.62 (representing total rent for 2005) + $5,909.42 (representing rent for January 2006 through November 2006 at the rate of $537.22 per month) = $44,666.34. $44,666.34 ? 99 months (September 1, 1998 through November 2006) = $451.18 average monthly rent.

[28] The Court has separately discussed and consolidated or dismissed the remaining counts in the Complaint.

28 M.G.L. c. 140, s.32S provides: “The attorney general from time to time shall promulgate such rules and regulations as he deems necessary for the interpretation, implementation, administration and enforcement of sections thirty-two A to thirty-two S, inclusive. Such authority shall be in addition to, and not in derogation of, the attorney general’s authority to promulgate rules and regulations under section two of chapter ninety-three A with respect to manufactured housing communities.”

The regulations as promulgated by the Attorney General at 940 C.M.R. 10.00 defines certain unfair acts or practices, but is not intended to describe all types of activities prohibited by M.G.L. c. 93A, s.2(a). 940 C.M.R. 10.02(3) provides: “It shall be an unfair and deceptive act or practice, in violation of M.G.L. c. 93A, s.2, for an operator…to fail to comply with any applicable provision of M.G.L. c. 140, s.s.32A through 32S, 940 C.M.R. 10.00, or any other local, state, or federal statute, rule, or regulation which generally or specifically provides protection to or for residents or prospective residents of manufactured housing communities…”. 940 C.M.R. 10.03(3) continues, in pertinent part: “Any violation of any applicable local, state, or federal statute, regulation or ordinance governing landlord-tenant relations…with regard to manufactured housing shall constitute a violation of M.G.L. c. 93A.” Further, 940 C.M.R. 10.03(8) provides that it will also be an unfair or deceptive action or practice for an operator of a manufactured housing community to: “…increase a tenant’s rent, or other fee, or change the terms of conditions of a tenancy, notwithstanding any provision in 940 C.M.R. 10.00 that would permit the imposition of a fee or restriction in the absence of a controlling occupancy agreement, except as permitted: (a) under the occupancy agreement…”.

[29] Mass.R.Civ.P. 54(c) provides, in pertinent part: “…[E]very final judgment shall grant the relief to which the party is entitled, even if the party has not demanded such relief in his pleadings.” Therefore, although the Plaintiff alleged that only the Defendant’s breach of 310 C.M.R. 15.00 violated 940 C.M.R. 10.02 and 10.03, the Court, pursuant to Mass.R.Civ.P. 54(c), finds that the Defendant’s failure to comply with the provisions of 310 C.M.R. 7.09 and 105 C.M.R. 410.300 constitutes a breach of 940 C.M.R. 10.02 and 10.03.

End Of Decision

HOUSING COURT

Patrick Louis v. Richard Middleton and Richard Middleton as Trustee of Stacy Realty Trust

SOUTHEASTERN DIVISION

Docket # 93-CV-00224

Parties: Patrick Louis v. Richard Middleton and Richard Middleton as Trustee of Stacy Realty Trust

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: October 18, 2007

MEMORANDUM OF DECISION ON PLAINTIFF’S CLAIM PURSUANT TO M.G.L. c. 93A and ORDER

This civil action was initiated by the Plaintiff’s mother on behalf of the then-minor Plaintiff, Patrick Louis (“Louis”).[1] The Plaintiff, along with his family, resided at 127 Newbury Street in Brockton, MA (the “Premises”), owned by the Defendants, Richard Middleton individually and Richard Middleton as Trustee of the Stacy Realty Trust. In his complaint, the Plaintiff alleged that he suffered lead poisoning as a result of the presence of lead paint at the Premises, and sought compensatory and punitive damages from the Defendant. The Plaintiff specifically sought treble damages pursuant to M.G.L. c. 93A.

The parties participated in a three-day jury trial on May 14 through May 16, 2007. This Court, Edwards, J., retained the Plaintiff’s M.G.L. c. 93A claim; all other issues were presented to

the jury. On May 16, 2007, the jury returned its verdict, finding that the Defendants had breached the implied warranty of habitability and were liable for the Plaintiff’s lead poisoning. However, the jury awarded no damages.

The Plaintiff subsequently filed a Motion for Judgment Notwithstanding the Verdict or, in the Alternative, a New Trial on the grounds that the jury’s verdict was “inadequate and unreasonable” based upon the evidence. This Court, Edwards, J., in its concurrent ruling of even date, Memorandum of Decision on Plaintiff’s Motion for Judgment Notwithstanding the Verdict or, in the Alternative, Motion for a New Trial found that the jury’s verdict was sound except for an inadequate award of damages. The Court has accordingly granted the Plaintiff’s Motion for a New Trial unless the Defendants agree to an additur in the amount of $2,345.46.[2] Pending the Defendants’ response to the Court’s ruling on Plaintiff’s Motion for new Trial, the Court cannot determine what damages might be awarded to the Plaintiff under M.G.L. c. 93A. The Court therefore takes NO ACTION on the Plaintiff’s claim pursuant to M.G.L. c. 93A until the damages awarded to the Plaintiff are determined, either during a new trial or through the Defendants’ acceptance of additur.

SO ORDERED.

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[1] The Court notes that Patrick Louis reached the age of 18 prior to trial, and therefore he appeared at trial in his own capacity.

[2] The Court found in its concurrently issued Memorandum of Decision that the evidence submitted to the jury during the trial included medical bills in the amount of $2,345.46, which represented the cost of the Plaintiff’s chelation therapy.

End Of Decision

HOUSING COURT

Patrick Louis PLAINTIFF v. Richard Middleton and

Richard Middleton as Trustee of Stacy Realty Trust,

DEFENDANTS

Docket # Docket No. 93-CV-00224

Parties: Patrick Louis PLAINTIFF v. Richard Middleton and

Richard Middleton as Trustee of Stacy Realty Trust,

DEFENDANTS

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: October 18, 2007

MEMORANDUM OF DECISION ON PLAINTIFF’S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR IN THE ALTERNATIVE MOTION FOR NEW TRIAL

This civil action was initiated by the Plaintiff’s mother on behalf of the then-minor Plaintiff, Patrick Louis (“Louis”).[1] The Plaintiff, along with his family, resided at 127 Newbury Street in Brockton, MA (the “Premises”), which was owned by the Defendants, Richard Middleton and Richard Middleton as Trustee of the Stacy Realty Trust. In his complaint, the Plaintiff alleged that he suffered lead poisoning as a result of lead paint at the Premises, and sought compensatory and punitive damages from the Defendant.

The parties participated in a three-day jury trial on May 14 through May 16, 2007. On May 16, 2007, the jury returned its verdict, finding that the Defendants had breached the implied warranty of habitability and were liable for the Plaintiff’s lead poisoning. However, no damages were awarded. The Plaintiff then orally moved for additur at sidebar, which the Court denied.

On May 25, 2007, the Plaintiff timely filed and served on the Defendant a motion for judgment notwithstanding the verdict or, in the alternative, requested a new trial. As the Plaintiff failed to move for a directed verdict during the trial, he therefore lost his right to move for a judgment notwithstanding the verdict under Mass.R.Civ.P. 50(b). Uno Restaurants, Inc. v. Boston Kenmore Realty Corp., 441 Mass. 376, 382 (2004), citing King v. G & M Realty Corp., 373 Mass. 658, 659 n.3 (1977); Delaware Place Realty Trust v. Delacruz and Soto, Boston Housing Court Docket No. 99-SP-02843 (Dec. 14, 1999)(Winik, J.). The Court will now treat his motion as pled in the alternative, that is, as a motion for new trial pursuant to Mass.R.Civ.P.59(a).

The Plaintiff argues in his motion that the jury’s verdict was “inadequate and unreasonable” based upon the evidence. Specifically, the Plaintiff alleges that the jury’s award of zero damages was unreasonable given: 1) the jury’s finding that the Defendant was liable for the Plaintiff’s lead poisoning, and 2) the Plaintiff’s medical bills submitted into evidence during the trial. The Defendants have filed their opposition to the Plaintiff’s motion for new trial. Mass.R.Civ.P. 59(a) provides, in pertinent part: “A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the Commonwealth…A new trial shall not be granted solely on the ground that the damages are inadequate until the defendant has first been given an opportunity to accept an addition to the verdict of such amount as the court adjudges reasonable.”

Both the motion for additur and the motion for new trial are directed to the discretion of the trial judge. Kirby v. Morales, 50 Mass. App. Ct. 786, 795 (2001); Freeman v. Wood, 379 Mass. 777, 785 (1980). A judge may use the additur process “only when he concludes that the verdict is sound except for inadequacy of the amount and the inadequacy is such as to descend to the level of unreasonableness.” Freeman, 379 Mass. at 785; Pinnick v. Lemke, Boston Housing Court Docket No. 95-CV-00343 (March 21, 2000)(Winik, J.).

The Court finds that the verdict in which the Defendants were found liable by the jury was sound except for the inadequacy of the amount. The Plaintiff submitted clear, unchallenged documentation regarding his medical expenses totaling $2,345.46.[2] Plaintiff’s Exhibit 5. These expenses were all reasonable charges for chelation therapy, the treatment protocol for lead poisoning. The

jury did not pose any questions to the Court during deliberations that reflected any confusion regarding the nature and amount of the expenses. The jury, though, failed to award any damages to the Plaintiff which, on its face, appears unreasonable.

Accordingly, the Plaintiff’s Motion for a New Trial will be granted by the Court unless the Defendant within ten (10) days of the date of this Memorandum agrees to an additur that awards the Plaintiff damages in the amount of $2,345.46 for his medical expenses. See Thibault v. Mack, 19 Mass.App.Ct. 916 (1984)(rescript).

SO ORDERED.

cc: James C. Bradbury, Esq.

Owen P. McGowan, Esq.

Mailing List: October 18, 2007 Docket #93-CV-00224

James C. Bradbury, Esq.

51 Union Street, Suite 101

Worcester, MA 01608

Owen P. McGowan, Esq.

McGowan & Associates

80 Washington Street – C20

Norwell, MA 02061

————————-

[1] The Court notes that Patrick Louis reached the age of 18 prior to trial, and therefore he appeared at trial in his own capacity.

[2] The Plaintiff submitted medical bills from Brockton Hospital which reflected costs incurred for chelation therapy administered to the Plaintiff during the period September 9, 1991 through September 15, 1991. Plaintiff’s Exhibit 5.

End Of Decision

HOUSING COURT

Robert K. Malcolm, Individually and as Trustee of the Robert K. Malcolm Revocable Trust PLAINTIFFS v. Corey W. Farcas, Administrator of the Estate of Wayne W. Williams, and Trustee of the Edgeway Realty Trust DEFENDANTS

Docket # Docket No. 06-CV-01187

Parties: Robert K. Malcolm, Individually and as Trustee of the Robert K. Malcolm Revocable Trust PLAINTIFFS v. Corey W. Farcas, Administrator of the Estate of Wayne W. Williams, and Trustee of the Edgeway Realty Trust DEFENDANTS

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: November 1, 2007

MEMORANDUM OF DECISION ON DEFENDANT’S MOTION TO DISMISS PLAINTIFFS’ COMPLAINT and ORDER

INTRODUCTION

This action was brought by Robert K. Malcolm both individually and in his capacity as trustee of the Robert K. Malcolm Revocable Trust. For purposes of this Memorandum of Decision, the Plaintiffs will be referred to as “Plaintiff” or “Malcolm”. The original Defendants in this case, both of whom are deceased, were Wayne Williams and Dimitria Williams[1] as Trustees of the Edgeway Realty Trust u/d/t March 6, 1986. The current Defendant is Corey W. Farcas, Trustee of the Edgeway Realty Trust.[2]

The motion before the Court is the Defendant’s Motion to Dismiss the Complaint and all counts for relief pursuant to Mass.R.Civ.P. 12. The Defendant argues that res judicata bars Plaintiff’s claims set forth in the Complaint as Amended. For the procedural reasons set forth below, the Defendant’s Motion to Dismiss the Complaint is DENIED without prejudice.

MOTION TO DISMISS

The Defendant moves, pursuant to Mass.R.Civ.P. 12, to dismiss Plaintiff’s Complaint on grounds that it is barred for res judicata reasons. While the Defendant references Mass.R.Civ.P. 12, he does not set forth the specific subsection of this Rule under which he requests relief. Upon review, the Court shall treat the Defendant’s motion as a Motion to Dismiss pursuant to Mass.R.Civ.P.

12(b)(6). See South Shore Housing Development Corp. v. De La Rosa, Southeast Housing Court Docket No. 04-SP-06011 (Feb. 9, 2005)(Edwards, J.); Federal Management Co., Inc. v. Marshall, Boston Housing Court Docket No. 91-SP-01053 (May 16, 1991)(Kerman, J.).

In determining the disposition of a motion to dismiss under Rule 12(b)(6), the Court takes the allegations in the complaint and inferences drawn therefrom in plaintiff’s favor as true, and considers the complaint sufficient “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Morais v. City of Lowell, 50 Mass. App. Ct. 540, 541 (2000)(internal citations omitted). A motion under Rule 12(b)(6) “should be allowed if and only if ‘it appears to a certainty that [the claiming pleader] is entitled to no relief under any state of facts which could be proved in support of the claim.'” Reporter’s Notes, Mass.R.Civ.P. 12, citing 2A Moore, Federal Practice 2245 (emphasis in original). Accordingly, under Mass.R.Civ.P. 12(b)(6), a “complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Nader v. Citron, 372 Mass. 96, 98 (1977). However, “[t]he plaintiff’s claim must be based on facts set forth in the complaint; all materials outside the pleadings are excluded from this review.” General Motors Acceptance Corp. v. Abington Casualty Ins. Co., 413 Mass. 583, 584 (1992).

The Plaintiff in his Complaint states that he purchased a manufactured home and resides in a community that is now under the control of and operated by the current named Defendant Trustee. Amended Complaint, p.1-4. Further, in paragraph 5 of his Amended Complaint, the Plaintiff states that he has previously “…filed an action in this Honorable Court praying for relief based upon two issues: (a) which party is responsible for the mowing of grass on the embankment behind Plaintiff’s home and (b) regarding a sprinkler system which has caused damage to the site Plaintiff’s home is located on; this action was found in favor of Defendant Trustees.”[3] The Plaintiff continues, “The within action is based upon an entirely new set of facts which is clear from the pleadings.” Amended Complaint, p.6. The remaining allegations contained in paragraphs 7 through 18 of the Plaintiff’s Amended Complaint describe conditions beneath his manufactured home that the Plaintiff alleges are caused by poor drainage and for which the Defendant is allegedly responsible.

The Plaintiff in his Complaint seeks relief from the Defendant in his capacity as Trustee on three separate counts, all of which arise from the alleged soil drainage problem. Count I alleges a violation by the Defendant of M.G.L. c. 140 as to preparing and maintaining a manufactured home site. Count II alleges a violation of 940 C.M.R. 10.05(10) by the Defendant for failing to provide basic utilities to a tenant and failing to provide adequate drainage facilities. The final count, Count III, alleges that the Defendant’s failure to remedy the soil drainage conditions beneath the manufactured home breaches the implied warranty of habitability. There are no separate allegations

regarding Corey W. Farcas in his capacity as Administrator of the Estate of Wayne W. Williams.

The Defendant in his motion argues that there were two separate cases involving the same parties, with essentially the same claims and facts between them as the case currently before this Court.[4] The Defendant argues that, therefore, the Plaintiff is barred on res judicata grounds from initiating the case now before the Court. The Defendant failed to cite any case law or attach any affidavits to his Motion to Dismiss in support of his argument.

The Court finds that it must deny the Defendant’s Motion to Dismiss at this time. If the Motion to Dismiss is treated as a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted, the Court may only consider the Complaint and the pleadings themselves. The Defendant argues, both orally and in writing, that one or both of the previous cases between the parties are incorporated by reference into the pleadings. The Plaintiff in his Amended Complaint expressly acknowledges the Judgment in #02-CV-00774, Robert K. Malcolm and Helen B. Stone as Trustees of the Robert K. Malcolm Revocable Trust v. Wayne Williams, Trustee, Edgeway Realty Trust. However, the Wareham District Court action, S.C./S.P. #0660-SU-000081, Edgeway Realty Trust v. Robert K. Malcolm, Trustee, Robert K. Malcolm Revocable Trust and Helen Stone, was only cited by the parties during oral arguments with only partial documentation related to that case attached to the pleadings. The Court finds that Defendant’s attempt to incorporate the Agreement for Judgment from the District Court action into his Motion to Dismiss violates the longstanding requirement that pleadings are to be direct and complete on their face, see Mass.R.Civ.P. 8(e), as there is no clear waiver of the Plaintiff’s claims within said Agreement for Judgment. Accordingly, because it is not clear from the pleadings that the Plaintiff “can prove no set of facts in support of his claim which would entitle him to relief,” see Nader, 372 Mass. at 98, the Defendant’s Motion to Dismiss must be DENIED.

Further, the Court cannot treat the Defendant’s Motion to Dismiss as a motion for summary judgment under Mass.R.Civ.P. 56, as the Defendant has failed to comply with the requirements of Rule 56. While both parties presented various exhibits and copies of pleadings from other cases at the oral argument on the Defendant’s motion, only the Plaintiff submitted an appropriate pleading (including both an affidavit and memorandum of law) in support of his opposition to the Defendant’s motion. Accordingly, as the Defendant has failed to meet his burden as required under Mass.R.Civ.P.56, the Motion to Dismiss the Complaint is DENIED without prejudice.

The Court, after further review of the Amended Complaint, DISMISSES sua sponte both the Defendant Corey W. Farcas in his capacity as Administrator of the Estate of Wayne W. Williams, and the counterclaim filed by Farcas as Administrator of the Estate of Wayne W. Williams. The Court dismisses Farcas as Administrator from this action upon finding that all of the Plaintiff’s factual and legal allegations have been alleged against Farcas as Trustee of the Edgeway Realty Trust and not against Farcas as Administrator of the Estate of Wayne W. Williams. Because the counterclaim was

only brought by Farcas in his capacity as Administrator, see Answer, Jury Claim, and Counterclaim of the Defendant, Corey W. Farcas, Administrator of the Estate of Wayne W. Williams, the Counterclaim in this action is DISMISSED.

ORDER

For the foregoing reasons, it is hereby ORDERED that:

1. Defendant’s Motion to Dismiss the Complaint is DENIED without prejudice.

2. Defendant Corey W. Farcas, Administrator of the Estate of Wayne W. Williams, is DISMISSED sua sponte as an improper party.

3. All counterclaims in this action are DISMISSED without prejudice.

cc: Robert K. Malcolm

Robert K. Malcolm, Trustee

Gerard S. Marsan, Esq.

Docket #06-CV-01187

Mailing List:

Robert K. Malcolm

P. O. Box 913

Lakeville, MA 02347

Robert K. Malcolm

52 Lyn Lane

Edgeway Mobile Home Park

Lakeville, MA 02347

Robert K. Malcolm, Trustee

P. O. Box 913

Lakeville, MA 02347

Robert K. Malcolm, Trustee

52 Lyn Lane

Edgeway Mobile Home Park

Lakeville, MA 02347

Gerard S. Marsan, Esq.

Marsan & Marsan

45 Bristol Drive

So. Easton, MA 02375

————————-

[1]The Court has no knowledge as to the status of the estate of Dimitria Williams and what, if any, interest said estate may have had in the Trust or in this action.

[2] As represented by the parties through counsel and the pleadings, Corey W. Farcas was appointed Administrator of the Estate of Wayne W. Williams on or about November 7, 2006, and was

appointed Trustee of the Edgeway Realty Trust on or about November 20, 2006. The Complaint was amended by the Plaintiff to reflect this change to add Farcas in both capacities, though the Court on review notes that the allegations contained in the Amended Complaint are against Farcas in his capacity as Trustee of Edgeway Realty Trust and not as Administrator of the Estate of Wayne W. Williams. See Amended Complaint and Motion to Amend Complaint. Accordingly, the Court, as discussed in this Memorandum, sua sponte dismisses the Defendant Farcas as Administrator of the Estate of Wayne W. Williams as an improper and necessary party to this action.

[3] This Court, Edwards, J., heard and ruled in #02-CV-00774, Robert K. Malcolm and Helen B. Stone as Trustees of the Robert K. Malcolm Revocable Trust v. Wayne Williams, Trustee, Edgeway Realty Trust. The Court finds that these are the same parties as are involved in the current matter.

[4] The Defendant has argued in his motion that two prior cases implicate res judicata issues. One case, filed in the Southeast Housing Court, is the previous case discussed in footnote #2, case #02-CV-00774, Robert K. Malcolm and Helen B. Stone as Trustees of the Robert K. Malcolm Revocable Trust v. Wayne Williams, Trustee, Edgeway Realty Trust. The other case was heard in Wareham District Court, S.C./S.P. #0660-SU-000081, Edgeway Realty Trust v. Robert K. Malcolm, Trustee, Robert K. Malcolm Revocable Trust, and Helen Stone.

End Of Decision

HOUSING COURT

Ann-Marie Miele v Frances Lynch

SOUTHEASTERN DIVISION

Docket # 06-CV-01027

Parties: Ann-Marie Miele v Frances Lynch

Judge: /s/ WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: November 27, 2007

ORDER AND AWARD OF LEGAL FEES

The Plaintiff Ann-Marie Miele (‘Miele’) commenced this civil action against her former landlord, the Defendant, Frances M. Lynch (‘Lynch’). Miele alleged the Defendant failed to provide heat and hot water in violation of M.G.L. c. 186, s.14, and further alleged violations of M.G.L. c. 186, s.15B for the Defendant’s improper collection and handling of a security deposit and last month’s rent. The Defendant filed an Answer denying the Plaintiff’s allegations. Both parties were represented by counsel at the trial held on October 24, 2006.

This Court, Edwards, J., issued a Judgment on March 13, 2007 finding for the Plaintiff on her claims for constructive eviction and breach of the implied warranty of habitability and awarded damages in the amount of $3,400.00, plus costs. The Court further found for the Plaintiff on her security deposit claim in the amount of $900.00, plus interest in the amount of $20.96 and reasonable attorney’s fees and costs. The Court also found in favor of the Plaintiff on her claim for the last month’s rent interest in the amount of $361.56, plus reasonable attorney’s fees and costs.

In determining an award of attorney’s fees the Court must consider ‘the nature of the case and the issues presented, the time and labor required, the amount of the damages involved, the result obtained, the experience, reputation and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases.’ Linthicum v. Archambault, 379 Mass. 381, 388-9 (1979). See Heller v. Silverbranch Constr. 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 court judge. Linthicum v. Archambault, supra at 388. An evidentiary hearing is not required. Heller v. Silverbranch Constr. Corp., supra at 630-631 (‘[because] we conclude that the judge is to rely on his firsthand knowledge of

the services performed before him … the judge in the instant case acted properly in awarding the Hellers attorney’s fees, notwithstanding the absence of evidence concerning time spent and the attorney’s usual charge.’). ‘A fair market rate for time reasonably spent preparing and litigating a case is the basic measure of a reasonable attorney’s fee under State law as well as Federal law.’ Fontaine v. Ebtec Corporation, 415 Mass. 309, 326 (1993).

The Plaintiff was represented by Attorney Daniel B. Walsh. Mr. Walsh has submitted two affidavits, one for the initial case (the ‘March 20, 2007 Affidavit’) and one related to the Defendant’s Motion for Reconsideration (the ‘April 30, 2007 Supplemental Affidavit’). Mr. Walsh represents in both affidavits that his hourly rate for this matter is $125.00. The Court finds Mr. Walsh’s hourly rate of $125.00 reasonable based upon rates normally charged by attorneys practicing in the greater Brockton area.

In the March 20, 2007 Affidavit, Attorney Walsh describes the services he provided to his client in this action. Mr. Walsh has requested that the Court award legal fees in the amount of $5,628.50 for 48.5 hours of total time, including 13.8 hours of trial preparation and trial on October 24, 2006[1]. This action presented factual and legal issues involving the implied warranty of habitability, rent abatement, constructive eviction, a security deposit and last month’s rent. The Plaintiff’s claims required preparation and presentation of testimony and documentation at trial as to the hot water and heating system serving the Premises. During all appearances before the Court in this case, Mr. Walsh was prepared and represented his client professionally.

In the April 30, 2007 Supplemental Affidavit, Attorney Walsh describes the additional services he provided to his clients in reviewing and opposing the Defendant’s request for Reconsideration. Mr. Walsh has requested that the Court award additional legal fees in the total amount of $1,118.50 representing 2.9 hours of time at his rate and 7.2 hours of time for his associate, Kathleen Iaccarino, at $105.00 an hour. This time, according to the affidavit, involved research and response to the Defendant’s motion.

The Court has reviewed the time submitted, and finds that 32.95 total hours is reasonable for this matter including the response to the Defendant’s Motion for Reconsideration. The Plaintiff prevailed on her claims for breach of the implied warranty of habitability, constructive eviction, return of the security deposit, payment of interest on the last month’s rent, breach of the covenant of quiet enjoyment pursuant to M.G.L. c. 186, s.14, and for retaliation pursuant to M.G.L. c. 186, s.18. The Court now awards the Plaintiff reasonable attorney’s fees in the amount of $3,835.75 based upon 18.8 hours of work at $125.00 an hour for Attorney Walsh and 14.15 hours of work at $105.00 for Associate Kathleen Iaccarino.

The Plaintiff also requested costs in the amount of $221.32, which represents court costs and fees including the cost of certified mail, filing fees, title review, and service fees. The Court will award costs in the amount of $221.32 to the Plaintiff.

ORDER ON AWARD OF PLAINTIFF’S ATTORNEY’S FEES

It is ORDERED that:

1. The Plaintiff is awarded attorney’s fees in the amount of $3,835.75 and costs in the amount of $221.32, for a total of $4,057.07, nunc pro tunc to March 13, 2007.

SOUTHEASTERN DIVISION

06-CV01027

Ann-Marie Miele vs. Frances Lynch

JUDGMENT

This action came on for trial/hearing before the Court, Edwards, J. presiding, and the issues having been duly tried/heard and findings having been duly rendered, it is ORDERED and ADJUDGED:

Counsel fees are awarded to Plaintiff in the sum of $3,835.75 plus costs of $221.32 for a total of $4,057.07, nunc pro tunc to March 13, 2007.

Dated at Fall River, Massachusetts, this 27th day of November 2007.

/s/ MARK R. JEFFRIES

CLERK MAGISTRATE

November 27, 2007

————————-

[1] The Court notes that, of the 13.8 total hours for trial preparation and trial, 8 hours are attributable to Attorney Walsh. The remaining 5.8 hours were billed by his associate, Kathleen Iaccarino, at the hourly rate of $105.00.

End Of Decision

HOUSING COURT

Doreen Roy v. Melissa Tavares and Frank Hobbs

Docket # 07-SP-00357

Parties: Doreen Roy v. Melissa Tavares and Frank Hobbs

Judge: /s/ WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: June 1, 2007

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

The Plaintiff brought this summary process action seeking possession and damages for unpaid rent from the Defendants. The Defendant Frank Hobbs failed to appear at trial on April 5, 2007, and is hereby defaulted. The Defendant Melissa Tavares (‘Tavares’) did not file an Answer, but did present affirmative defenses and counterclaims at trial. Both parties appeared pro se.

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

Plaintiff Doreen Roy (‘Roy’) testified that she owns a multi-family property located at 31 Oxford Street in Fall River, MA (the ‘Building’), and that she resides in the first floor apartment in the Building. Roy stated that the Defendant Tavares lives on the second floor apartment (the ‘Premises’). The Plaintiff testified that the monthly rent for the Premises is $650.00, due on or before the first of the month. The Plaintiff further stated that Tavares owes $2,600.00 in unpaid rent, calculated at the rate of $650.00 per month for the period of January 2007 through April 2007. The Plaintiff was credible in her testimony.

The Plaintiff served the Defendants with a 14-Day Notice to Quit for failure to pay rent on February 7, 2007, alleging unpaid rent in the amount of $1,400.00. Plaintiff’s Exhibit 1. The Plaintiff served the Defendants with a Summons and Complaint on March 3, 2007, with an account annexed of $1,400.00. The Court notes that both the Notice to Quit and the Summons and Complaint allege unpaid rent at the rate of $700.00 per month, but the Plaintiff acknowledged at trial and the Court finds that the monthly rent is $650.00.

Tavares acknowledged that no rent had been paid for the period of January 2007 through April 2007.

A landlord has the right to possession pursuant to M.G.L. c. 239, s.1. The Court finds that the Plaintiff has proven her prima facie case for possession and damages against the Defendant Tavares for unpaid rent in the amount of $2,600.00, plus costs, calculated at the rate of $650.00 per month for the months of January, February, March, and April 2007. The Defendant Tavares has presented affirmative defenses and counterclaims.[1]

The Defendant’s Defenses and Counterclaims

The Defendant’s Defense to Possession Pursuant to M.G.L. c. 239, s.8A

conditions cannot be remedied unless the premises are vacated.

The Court finds that there were numerous defects at the Premises for the period of March 8, 2007 through April 5, 2007, as enumerated below. The Court further finds that the Plaintiff was not aware of the conditions at the Premises before the Defendant first fell into arrears in her rent or before the Plaintiff served the Defendants with the Notice to Quit on February 7, 2007. Accordingly, the Defendant Tavares is not entitled to a defense to possession pursuant to M.G.L. c. 239, s.8A p.2. See Matthews v. Brathwaite, Boston Housing Court Docket No. 00-SP-020003 (May 23, 2000)(Winik, J.).

The Defendant’s Implied Warranty of Habitability Counterclaim

The Defendant Tavares alleged at trial that conditions at the Premises violated the State Sanitary Code and the implied warranty of habitability. The implied warranty of habitability is the landlord’s promise that the premises will meet certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the tenant is in material violation of the minimum standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). A landlord must have actual or constructive notice of the condition creating the violation. McKenna v. Begin, 3 Mass.App.Ct. 168 (1975). Damages are assessed from the date the landlord had notice of the condition of disrepair. Berman & Sons v. Jefferson, 379 Mass. 196 (1979). The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises as warranted and the fair rental value of the premises with the defects. McKenna v. Begin, 3 Mass. App. Ct. at 172.

Tavares testified that there were several adverse conditions at the Premises during her tenancy. The Defendant Tavares stated that there was no heat at the Premises in September and October 2006. She further complained of mold in the bathroom, along with peeling paint or varnish on the floor. Tavares stated there were electrical problems at the Premises. Defendant Tavares did not testify as to whether she notified the Plaintiff of the conditions at the Premises prior to service of the Notice to Quit on February 7, 2007.

Tavares further testified that the Fall River Division of Minimum Housing Standards inspected the Premises on or about March 7, 2007. The inspection report, dated March 8, 2007, notes several conditions in need of repair at the Premises, including the following: ripped linoleum in the first floor hallway; gaps around the front door; broken master lock on the front door; broken door frame on the front door; debris in the hallways on the first and second floors; no floor coverings in the Premises; peeling paint in the front room of the Premises; no carbon monoxide detectors; no bedroom doors; light fixtures and outlets not working; outlets sparking and blowing fuses; loose and missing windows; kitchen cabinet doors falling off and loose; water damage to bathroom floor; bathroom floor tiles in need of replacement; stained ceiling tiles in the bathroom; and holes and broken hinges around the

apartment door. Plaintiff’s Exhibit 2. The majority of the items cited in the inspection report required immediate repair, although the Plaintiff was given thirty days to repair the ripped linoleum in the first floor hallway, the kitchen cabinet doors, and the stained bathroom ceiling tiles. Plaintiff’s Exhibit 2.

The Plaintiff acknowledged receipt of the inspection report, but denied any knowledge or requests to make repairs to the Premises prior to March 8, 2007. Neither party indicated whether repairs to the Premises had been completed prior to the trial on April 5, 2007.

The Court finds that there were numerous defects at the Premises for the period of March 8, 2007 through April 5, 2007, including: ripped linoleum in the first floor hallway; gaps around the front door; broken master lock on the front door; broken door frame on the front door; debris in the hallways on the first and second floors; no floor coverings in the Premises; peeling paint in the front room of the Premises; no carbon monoxide detectors; no bedroom doors; light fixtures and outlets not working; outlets sparking and blowing fuses; loose and missing windows; kitchen cabinet doors falling off and loose; water damage to bathroom floor; bathroom floor tiles in need of replacement; stained ceiling tiles in the bathroom; and holes and broken hinges around the apartment door. Accordingly, the Court finds that the conditions at the Premises in the aggregate violated the implied warranty of habitability. The Defendant Tavares is entitled to a rent abatement in the amount of $185.89, or thirty per cent (30%), calculated as follows: $21.37/day[2] x 30% = $6.41 x 29 days[3] = $185.89.

The Plaintiff shall complete all repairs in the Premises as indicated in Plaintiff’s Exhibit 2 within twenty (20) days of the date judgment enters. All work is to be done with appropriate permits, if necessary, at the Plaintiff’s sole expense and shall be completed in a good and workmanlike manner as set forth herein. Abrams v. Factory Mutual Liability Ins. Co., 298 Mass. 141, 143 (1937); Mass. Highway Dept. v. Walsh Construction Co., Mass. Super. Ct. No. 015746-BLS (2003). The Defendant Tavares shall permit the Plaintiff and/or her agents access to the Premises to complete the repairs upon twenty-four (24) hours written notice during regular business hours (9:00 a.m. to 6:00 p.m.) Monday through Saturday.

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 Defendant Melissa Tavares for possession and damages for unpaid rent in the amount of $2,600.00, plus costs in the amount of $330.00, totaling $2,930.00.

2. Judgment enter for the Defendant Melissa Tavares on her counterclaim for the Plaintiff’s breach of the implied warranty of habitability in the amount of $185.89.

3. Paragraphs 1 and 2 of this Order result in a net judgment for the Plaintiff in the amount of $2,744.11.

4. The Plaintiff shall complete all repairs to the Premises within twenty (20) days of the date judgment enters. All work is to be done with appropriate permits, if necessary, at the Plaintiff’s sole expense and shall be completed in a good and

workmanlike manner as set forth herein. Abrams v. Factory Mutual Liability Ins. Co., 298 Mass. 141, 143 (1937); Mass. Highway Dept. v. Walsh Construction Co., Mass. Super. Ct. No. 015746-BLS (2003). The Defendant Melissa Tavares shall permit the Plaintiff and/or her agents access to the Premises to complete the repairs upon twenty-four (24) hours written notice during regular business hours (9:00 a.m. to 6:00 p.m.) Monday through Saturday.

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

07-SP-00357

Doreen Roy, Plaintiff vs. Melissa Tavares and Frank Hobbs, Defendants

JUDGMENT

Judgment for the Plaintiff as to Defendant Melissa Tavares for possession, unpaid rent of $2,600.00, plus costs of $330.00, for a total of $2,930.00.

Judgment for Defendant Melissa Tavares, as to her counterclaim issue for breach of the implied warranty of habitability, in the sum of $185.89; resulting in a net judgment to Plaintiff of $2,744.11 as provided in paragraph 3 of the Court’s Order for Judgment.

Both Plaintiff and Defendant shall timely comply with their respective responsibilities as set forth in paragraph 4 of the Court’s Order for Judgment, relative to the completion of repairs at the subject premises.

Accordingly, judgment enters at 10:00 a.m. this 4th day of June 2007.

/s/ MARK R. JEFFRIES

CLERK MAGISTRATE

June 4, 2007

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[1] ‘When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.’ Mass.R.Civ.P. 15(b). Both parties proceeded at trial as to the conditions at the Premises.

[2] The per diem rental rate is calculated as follows: $650.00 x 12 months = $7,800.00 ? 365 = $21.37/day.

[3] The period of March 8, 2007 through April 5, 2007 consists of 29 days.

End Of Decision

HOUSING COURT

William J. Murphy, Jr., and Joseph McDonnell, Trustees of Unicorn Realty Trust; and William J. Murphy, Jr., Trustee of 239 Washington Street Trust vs. Thomas Miller

SOUTHEASTERN DIVISION

Docket # 04-CV-01151

Parties: William J. Murphy, Jr., and Joseph McDonnell, Trustees of Unicorn Realty Trust; and William J. Murphy, Jr., Trustee of 239 Washington Street Trust vs. Thomas Miller

Judge: /s/ WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: September, 2007

ORDER AND AWARD OF COSTS

The Plaintiffs, William J. Murphy, Jr., and Joseph McDonnell, Trustees of Unicorn Realty Trust, and William J. Murphy, Jr., Trustee of 239 Washington Street Realty Trust (hereafter collectively ‘Unicorn’), brought a civil action in this Court seeking unpaid rent from a former tenant, Defendant Thomas Miller (‘Miller’). Miller filed an Answer and Counterclaims alleging that Unicorn breached the implied warranty of habitability and the covenant of quiet enjoyment pursuant to M.G.L. c. 186, s.14, and further violated the security deposit statute, M.G.L. c. 186, s.15B, and M.G.L. c. 93A.

The Court (Edwards, J.), on June 29, 2007, issued its Findings of Fact, Rulings of Law and Order for Judgment. This Court found that the Plaintiff was entitled to damages in the amount of $340.00 from the Defendant for unpaid rent. The Court found in favor of the Defendant on his counterclaim alleging Plaintiff’s breach of the implied warranty of habitability. The Court awarded damages to the Defendant in the amount of $4,740.10, plus costs.

Pursuant to the Order for Judgment, the Defendant was ordered to file with the Court a Motion for Costs and Expenses within ten (10) days of the date that judgment entered. The Defendant has now done so. The Court conducted a hearing on the motion on August 22, 2007.

The Defendant has requested costs in the amount of $890.07, which represents court costs and expenses, including copies, constable service, subpoenas, title view charges, and the cost of a deposition transcript. The Plaintiff presented no opposition to the Defendant’s request.

The Court has reviewed the Defendant’s request for costs and finds that the costs are reasonable and related to the Defendant’s implied warranty of habitability counterclaim. The Court will therefore award costs to the Defendant in the amount of $890.07.

ORDER ON AWARD OF DEFENDANTS’ ATTORNEY’S FEES

It is ORDERED that:

1. The Defendant is awarded costs in the amount of $890.07, nunc pro tunc to June 29, 2007.

04-CV-1151

William J. Murphy, Jr., and Joseph McDonnell, Trustees of Unicorn Realty Trust; and William J. Murphy, Jr., Trustee of 239 Washington Street Trust Plaintiffs vs. Thomas Miller Defendant

JUDGMENT

This action came on for trial/hearing before the Court, Edwards, J. presiding, and the issues having been duly tried/heard and findings having been duly rendered, it is ORDERED and ADJUDGED:

Judgment for Defendant for costs in the amount of $890.07, nunc pro tunc to June 29, 2007.

Dated at Fall River, Massachusetts this 17th day of September 2007.

/s/ MARK R. JEFFRIES

CLERK MAGISTRATE

End Of Decision

HOUSING COURT

William J. Murphy, Jr., and Joseph McDonnell, Trustees of Unicorn Realty Trust; and William J. Murphy, Jr., Trustee of 239 Washington Street Trust v. Ellen Kilduff

SOUTHEASTERN DIVISION

Docket # 04-CV-01150

Parties: William J. Murphy, Jr., and Joseph McDonnell, Trustees of Unicorn Realty Trust; and William J. Murphy, Jr., Trustee of 239 Washington Street Trust v. Ellen Kilduff

Judge: /s/ WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: September 17, 2007

ORDER AND AWARD OF LEGAL FEES

The Plaintiffs, William J. Murphy, Jr., and Joseph McDonnell, Trustees of Unicorn Realty Trust, and William J. Murphy, Jr., Trustee of 239 Washington Street Realty Trust (hereafter collectively ‘Unicorn’) brought a civil action in this Court seeking unpaid rent from a former tenant, the Defendant Ellen Kilduff (‘Kilduff’). The Defendant filed an Answer and Counterclaims alleging that Unicorn breached the implied warranty of habitability and the covenant of quiet enjoyment pursuant to M.G.L. c. 186, s.14, and further violated the security deposit statute, M.G.L. c. 186, s.15B, and M.G.L. c. 93A.

The Court (Edwards, J.), on June 29, 2007, issued its Findings of Fact, Rulings of Law and Order for Judgment. This Court found that Unicorn was entitled to damages in the amount of $810.00 from the Defendant for unpaid rent. The Court found in favor of the Defendant on her counterclaim alleging Unicorn’s breach of the covenant of quiet enjoyment pursuant to M.G.L. c. 186, s.14. The Court awarded damages to Kilduff for the Plaintiff’s breach of the covenant of quiet enjoyment in the amount of $1,755.00[1], plus reasonable attorney’s fees, costs, and expenses. The Court found in favor of Unicorn on Kilduff’s M.G.L. c. 93A counterclaim.

Pursuant to the Order for Judgment, the Defendant was ordered to file with the Court a Motion for Counsel Fees, Costs, and Expenses within ten (10) days of the date that judgment entered. The Defendant has now done so. The Court conducted a hearing on the motions on August 22, 2007.

In determining an award of attorney’s fees the Court must consider ‘the nature of the case and the issues presented, the time and labor required, the amount of the damages involved, the result obtained, the experience, reputation and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases.’ Linthicum v. Archambault, 379 Mass. 381, 388-9 (1979). See Heller v. Silverbranch Constr. 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 court judge. Linthicum v. Archambault, supra at 388. An evidentiary hearing is not required. Heller v. Silverbranch Constr. Corp., supra at 630-631 (‘[because]

we conclude that the judge is to rely on his firsthand knowledge of the services performed before him … the judge in the instant case acted properly in awarding the Hellers attorney’s fees, notwithstanding the absence of evidence concerning time spent and the attorney’s usual charge.’). ‘A fair market rate for time reasonably spent preparing and litigating a case is the basic measure of a reasonable attorney’s fee under State law as well as Federal law.’ Fontaine v. Ebtec Corporation, 415 Mass. 309, 326 (1993).

The Defendant was represented by Attorney J. Martin Hawthorne, an attorney who has been admitted to practice in the Commonwealth of Massachusetts since 1995. Mr. Hawthorne represented in his affidavit that his hourly rate is $250.00. The Court finds Mr. Hawthorne’s hourly rate of $250.00 in excess of those rates normally charged by attorneys practicing in the greater Brockton area and further finds that a rate of $200.00 an hour is more reasonable for this type of case.

Attorney Hawthorne has submitted an affidavit of legal fees along with the Motion for Counsel Fees, Costs, and Expenses, in which he describes the services he provided to his clients in this action. Mr. Hawthorne, on behalf of his client, has requested that the Court award legal fees in the amount of $28,469.70 inclusive of not only his time but time for associates and paralegal support for discovery, summary judgment motions, trial preparation and for three days of trial on September 14-15, 2006 and December 11, 2006.[2] Portions of the trial and trial preparation was for the Defendant’s counterclaim pursuant to M.G.L. c. 186, s.14.

The Court notes the Plaintiff initially commenced this matter as a Small Claims action for rent. The Defendant filed a pro se answer and counterclaims, all of which were amended with the assistance of counsel. In addition to Defendant Kilduff, Attorney Hawthorne also represented three other defendants in similar actions against the same Plaintiff before the Court.[3] For purposes of discovery only, the Court consolidated the four matters. The parties on all four consolidated cases completed extensive discovery including depositions and summary judgment motions prior to trial. The only legal issue for the Plaintiff in each of the four matters involved a claim of non-payment of rent. All of the Defendants in the various cases had counterclaims that involved breach of the implied warranty of habitability, breach of the covenant of quiet enjoyment, failure to return a security deposit/or pay interest on same, and alleged breach of the consumer protection statute.

Counsel seeks a total of $21,350.35 (as reduced by his affidavit filed September 11, 2007) for his fees for service to this Defendant. He has presented affidavits representing time and expenses for all four cases and, in essence, took twenty-five per cent (25%) of the total time and allocated it to Ellen Kilduff’s case. The Court finds that, notwithstanding his explanation and calculations for both his and his associates’ time, Attorney Hawthorne’s affidavits fail to clearly and adequately delineate the time spent just on the Defendant’s quiet enjoyment counterclaim. The Court in its June 29, 2007 decision found that the conditions at the Premises substantially interfered with the Defendant’s quiet enjoyment of the Premises and awarded the Defendant damages on her quiet enjoyment counterclaim in the amount of $1,755.00, plus costs

and reasonable attorney’s fees. The Court has closely reviewed Attorney Hawthorne’s affidavits. The Court now awards the Defendant reasonable attorney’s fees in the amount of $15,232.31, calculated as follows: 54.2125 hours for Attorney Hawthorne at the rate of $200.00 per hour; 28.2375 hours for Chris Vaughn Martel at the rate of $95.00 per hour; 6.875 hours for Michael J. Farraher at the rate of $150.00 per hour; 1.25 hours for Leo McAuliffe, a research specialist, at the rate of $100.00 per hour; and 5.8 hours for Jean Fahey at the rate of $95.00 per hour. In making its finding, the Court expressly acknowledges that the Defendant’s defenses and counterclaims involving the breach of the implied warranty of habitability and quiet enjoyment were closely tied together throughout the case requiring substantially more time on counsel’s part in reviewing discovery and preparing for pre-trial practice and trial.

The Defendant also requested costs in the amount of $506.85, which represents court costs and fees including the cost of subpoenas, photographs, copying of documents and service fees. The Court will award costs in the amount of $506.85 to the Defendant.

ORDER ON AWARD OF DEFENDANT’S ATTORNEY’S FEES

It is ORDERED that:

1. The Defendant is awarded attorney’s fees in the amount of $15,232.31 and costs in the amount of $506.85, for a total of $15,739.16, nunc pro tunc to June 29, 2007.

04-CV-1150

William J. Murphy, Jr., and Joseph McDonnell, Trustees of Unicorn Realty Trust; and William J. Murphy, Jr., Trustee of 239 Washington Street Trust vs. Ellen Kilduff

JUDGMENT

This action came on for trial/hearing before the Court, Edwards, J. presiding, and the issues having been duly tried/heard and findings having been duly rendered, it is ORDERED and ADJUDGED:

Judgment for Defendant for attorney’s fees in the sum of $15,232.31 plus costs of $506.85, for a total of $15,739.16, nunc pro tunc to June 29, 2007.

Dated at Fall River, Massachusetts this 17th day of September 2007.

/s/ MARK R. JEFFRIES

CLERK MAGISTRATE

September 17, 2007

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[1] The Court awarded Kilduff damages in the net amount of $6,657.50 for the Plaintiff’s breach of the covenant of quiet enjoyment and the implied warranty of habitability.

[2] On September 11, 2007, Mr. Hawthorne submitted to the Court a revised affidavit as to his services. He has reduced his

request to $21,350.35.

[3] Attorney Hawthorne represented the Defendants in each of the following actions: case #04-CV-01148, Unicorn Realty Trust v. Lushinsky (default judgment entered against the Defendant August 8, 2006); case #04-CV-01149, Unicorn Realty Trust v. Coy and Forrey (default judgment entered against the Defendants August 17, 2006); and case #04-CV-01151, Unicorn Realty Trust v. Miller (judgment entered June 29, 2007).

End Of Decision

HOUSING COURT

CRUZ MANAGEMENT COMPANY, INC., Plaintiff VS. NESTOR APONTE, JR., Defendant

Docket # SUMMARY PROCESS 07-H84-SP-004639

Parties: CRUZ MANAGEMENT COMPANY, INC., Plaintiff VS. NESTOR APONTE, JR., Defendant

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: March 20, 2008

MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S COUNTERCLAIMS

Currently before this Court is the Plaintiff’s Motion to Strike Defendant’s Counterclaims. The Defendant opposes the Motion.

The Plaintiff is the managing agent of the residential rental property located at 6 Bellevue Street in the Dorchester neighborhood of Boston. The defendant resides at Apartment #3 thereof pursuant to a written Section 8 lease.

The Plaintiff brought this “for cause” summary process action to obtain possession of the premises, alleging that the Defendant violated the lease agreement between the parties by interfering with the quiet enjoyment and health, safety, and welfare of the Plaintiff’s other tenants as well as the Plaintiff’s management staff. Specifically, the Plaintiff alleges that the Defendant has verbally harassed and physically assaulted other tenants and has verbally harassed and threatened members of the Plaintiff’s management staff.

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The Defendant filed an Answer with counterclaims. In his Answer, the Defendant asserted seven defenses: (1) failure to properly commence the action; (2) failure to properly terminate the tenancy; (3) lease[1]; (4) condition of the premises; (5) violation of anti-discrimination laws; (6) claims against the landlord; and (7) relief from forfeiture. The defendant also asserted six counterclaims: (1) breach of warranty; (2) interference with quiet enjoyment of the premises; (3) negligent failure to maintain premises; (4) infliction of emotional distress; (5) violation of anti-discrimination laws; and (6) unfair and deceptive practices. The plaintiff is requesting that the Court strike the Defendant’s counterclaims (including to the extent the counterclaims are also being asserted as defenses) pursuant to G.L. c. 239, s. 8A.

G.L. c. 239, s. 8A provides that where a tenancy has been terminated for non-payment of rent or without the 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.” G.L. c. 239, s. 8A makes clear that a tenant in a no-fault or non-payment of rent summary process action may assert defenses and claims arising out of the tenancy. What is unclear and subject to debate, however, is to what degree G.L. c. 239, s. 8A limits a tenant’s ability to assert defenses and counterclaims in a fault (for cause) eviction.

With respect to the raising of defenses in for cause summary process actions, this Court has recognized that “certain defenses, while not bearing directly on the factual allegations of the case

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[1] The third defense states, “The Tenant has a written lease which has not expired, and the Landlord has no cause or has not taken the action necessary pursuant to the terms of the lease to recover possession before the expiration of said lease,” and appears to deny the factual allegations set forth by the Plaintiff as well as reiterate the second defense of failure to properly terminate the tenancy.

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[e.g., failure to properly terminate the tenancy], are nevertheless fundamental in landlord-tenant law and must be able to be raised notwithstanding the language of Section 8A.” Cornu Management, Inc. v. Lopez, Boston Housing Court Docket No. 04-SP-03835 (January 20, 2005) (Pierce, J.). Additionally, this Court has recognized that “[d]efenses relating to conditions of the property appear to be within the scope of the legislature’s intent in Section 8A to remove them from consideration in cause evictions” but that certain other defenses (e.g., retaliation and discrimination) may be asserted in a for cause summary process action if there is at least a colorable assertion that such defenses bear a close nexus to the factual allegations of cause. Id. With respect to the raising of counterclaims in for cause summary process actions, this Court has

recognized that the Court’s common practice of severing the counterclaims and trying them elsewhere “comports generally with legislative intent as well as judicial economy.” Id.

Following this Court’s interpretation of G.L. c. 239, s. 8A as set forth in the Lopez decision, all of the Defendant’s counterclaims shall be severed from this action and transferred to the civil docket of this Court. Further, the Defendant shall be allowed to present the procedural defenses of failure to properly commence the action, failure to properly terminate the tenancy, and “lease.” The Defendant shall also be allowed to present the relief from forfeiture defense.

The Defendant has failed to show an arguable nexus between his discrimination defense and the factual allegations of cause asserted by the Plaintiff. The Defendant shall not be allowed to present a discrimination defense. The Defendant also shall not be permitted to present as a defense any other counterclaim asserted in his Answer as outlined in his sixth defense.

Accordingly, the Plaintiff’s Motion to Strike Defendant’s Counterclaims is ALLOWED in

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part and DENIED in part as set forth in the ORDER below.

ORDER

For the reasons set forth above, it is ORDERED that:

1. The Defendant’s fourth, fifth, and sixth defenses as set forth in the Summary Process Answer and Counterclaims are hereby stricken;

2. All of the Defendant’s counterclaims shall be severed from this action and transferred to the civil docket of this Court.

cc: Robert D. Russo, Esq.

Denise McWilliams, Esq.

Bethany Ann Booth, Esq.

Robert L. Lewis, Clerk-Magistrate

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End Of Decision

HOUSING COURT

ESTELLA COUNTY, Plaintiff VS. AMANDA VICKERS, Defendant

Docket # SUMMARY PROCESS 08-H84-SP-000499

Parties: ESTELLA COUNTY, Plaintiff VS. AMANDA VICKERS, Defendant

Judge: /s/ WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: March 10, 2008

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

This is a summary process action in which the Plaintiff, Estella County, is seeking to recover possession of the premises occupied by the Defendant, Amanda Vickers, for non-payment of rent for the period of November 2007 through February 2008. The Defendant did not file an Answer, and both parties appeared and testified at the trial held on February 28, 2008. At trial, the Defendant alleged breach of the covenant of quiet enjoyment. Both parties appeared pro se.

Based upon the testimony and other evidence presented at trial and the reasonable inferences drawn therefrom, in light of the governing law, the Court finds as follows:

The Plaintiff owns the three-family property located at 849 Cummins Highway, in the Mattapan neighborhood of Boston (the “building”) and resides in the first floor apartment. Pursuant to a one-year written lease (the “lease”), Exhibit 1, dated September 22, 2007, the Defendant lives at Apartment #3 of the building (“the premises”). According to its terms, the lease expires on September 30, 2008. The Defendant’s monthly rent under the lease is $1,200.00, due on the twenty-second day of each month.

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The Plaintiff testified that the Defendant paid the rent for the period of October 22, 2007 through November 21, 2007, but failed to pay any further rent for the 4-month period of November 22, 2007 through March 21, 2008, at the rate of $1,200.00 per month for a total due of $4,800.00. The Court finds the Plaintiff’s testimony credible.

On January 16, 2008, the Plaintiff served on the Defendant a legally sufficient 14-Day Notice to Quit for non-payment of rent, citing the Defendant’s failure to pay rent on November 22, 2007 and December 22, 2007 in the amount of $1,200.00 for each month. Exhibit 2. The Plaintiff commenced this summary process action on February 5, 2008 by serving the Summary Process Summons and Complaint on the Defendant via Constable.

The Court finds that the Plaintiff has proven her prima facie case for possession and damages for unpaid rent in the amount of $4,800.00 subject to the Defendant’s defenses and counterclaims.

THE DEFENDANT’S DEFENSE AND COUNTERCLAIM

G. L. c. 239, s. 8A

M.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.” The Defendant alleged during the trial in this matter that the Plaintiff breached the covenant of quiet enjoyment.

The Defendant testified that on or about February 11, 2008, the Plaintiff and her son attempted entry into her apartment for purposes of an inspection related to either smoke or fire damage following a fire on that day in the second floor apartment of the building. She testified

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that there was some “touching” between the parties and that a lock was broken on her premises’ door.

In rebuttal, the Plaintiff testified that she did not touch the Defendant and made no entry into the Premises even though she was concerned as to the condition of the premises. She further testified that the Defendant was able to lock her premises door as there were two locks on the door.

M.G.L. c. 186, s.14 provides that any landlord who “directly or indirectly interferes with the quiet enjoyment of any residential premises … shall also be liable for actual and consequential damages or three month’s rent, whichever is greater, … which may be applied in setoff to or in recoupment against any claim for rent owed or owning.” While the statute does not require the landlord’s conduct be intentional, Simon v. Solomon, 385 Mass. 91, 102 (1982), it does require proof that the landlord’s conduct caused a serious interference with the tenant’s quiet enjoyment of the premises. A serious interference with the tenant’s quiet enjoyment is an act or omission that impairs the character and value of the leased premises. Doe v. New Bedford Housing Authority, 417 Mass. 273, 284-85 (1994); Lowery v. Robinson, 13 Mass.App.Ct. 982, 982 (1982) (rescript opinion). When a landlord breaches the statutory covenant of quiet enjoyment, the tenant is not only entitled to recover the greater of actual damages or three month’s

rent, but also reasonable costs and attorney’s fees.

The Court finds, based upon its evaluation of the credibility of the testimony of the only two witnesses, the parties, and the emergency circumstances surrounding the Plaintiff’s attempt to inspect potential damage in the Defendant’s apartment from the fire in the second floor apartment, that the Defendant has failed to sustain her burden of proof that the Plaintiff breached the statutory covenant of quiet enjoyment. The Court accordingly finds for the Plaintiff on the

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Defendant’s counterclaim. Further, the Defendant has failed to prove a defense to the Plaintiff’s claim for possession under M.G.L. c. 239, s. 8A.

ORDER FOR JUDGMENT

In light of the evidence produced at trial, reasonable inferences drawn therefrom, and applicable law, the Court ORDERS that judgment shall enter as follows:

1. Judgment enters for the Plaintiff for possession of the premises and damages for unpaid rent in the amount of $4,800.00;

2. Judgment enters for the Plaintiff on the Defendant’s quiet enjoyment counterclaim;

3. The Plaintiff’s execution for possession and damages shall issue ten (10) days from the date of entry of judgment.

End Of Decision

HOUSING COURT

ANWAR FAISAL VS. LATOYA FERNANDEZ and SAMANTHA BARNES

BOSTON DIVISION

Docket # SUMMARY PROCESS 08-H84-SP-001238

Parties: ANWAR FAISAL VS. LATOYA FERNANDEZ and SAMANTHA BARNES

Judge: /s/WILBUR P. EDWARDS. JR.

ASSOCIATE JUSTICE

Date: May 23, 2008

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

This is a summary process action for non-payment of rent in which the plaintiff, Anwar Faisal, is seeking to recover possession of the premises occupied by the defendants, Latoya Fernandez (“Fernandez”) and Samantha Barnes (“Barnes”), which is known as 103 Gordon Street, Unit G4, Brighton, Massachusetts (“the premises”). The plaintiff is also seeking damages for unpaid rent and/or use and occupancy for the period December 2007 through April 2008.

Defendant Fernandez filed an Answer, alleging that Barnes broke the lease and is responsible for any back rent owed the plaintiff. Barnes also filed an Answer and Counterclaims. In Barnes’s Answer, she denied that she was in possession of the premises and further claimed that the plaintiff breached the implied warranty of habitability and the statutory covenant of quiet enjoyment. She further alleged that the plaintiff impermissibly retaliated against her, violated M.G.L. c. 186, s. 15B, and violated M.G.L. c. 93A. The plaintiff denies Barnes’s counterclaims. The plaintiff was represented by counsel, while the defendants appeared pro-se.

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Prior to the commencement of trial, Barnes moved for dismissal of the case pursuant to M.G.L. c. 239, s. 1.[1] As reason for her motion to dismiss, she argued that she was not in possession of the premises as she had vacated and surrendered her keys to the premises. She also argued that she had not been served with the Summons and Complaint. A hearing on the motion was held on the date of trial prior to its commencement. The parties identified a lease agreement (“the lease”) for the premises dated June 22, 2007 with a commencement date of September 1, 2007 and an expiration date of August 31, 2008. Exhibit 2. Barnes testified that she moved out of the premises at the end of December 2007 and her mother mailed the keys for the premises to the plaintiff in an envelope by certified mail, return receipt requested, on or about January 23, 2008. Exhibit 1. She stated that only the keys were included in the envelope to the Plaintiff and further, no cover letter. She testified that she had no additional conversations with the plaintiff regarding delivery of the keys for the premises or her

intent as to continued occupancy for the remainder of the lease term. She further testified that Fernandez remained living at the premises through the date of trial. The Court found Barnes’s testimony credible.

The Court denied Barnes’s Motion to Dismiss on the ground that delivery of keys to a landlord, absent further action or consent, does not constitute acceptance of the premiss for purposes of terminating the tenancy. See Cassidy v. Welsh, 319 Mass. 615, 618-619 (1946). The Court also found that the plaintiff properly served the Summons and Complaint upon Barnes at her last known and usual abode, i.e., the premises as Barnes expressly acknowledged in her testimony that she never advised the plaintiff that she had vacated the premises, or of her desire

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[1] Barnes submitted her Motion to Dismiss on the date of trial without service on the Plaintiff. Absent objection from the plaintiff, the Court heard the motion.

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to terminate the lease, or of her new address in Marblehead, Massachusetts. Accordingly, the Court proceeded to trial.

Based upon the testimony and other evidence presented at trial and the reasonable inferences drawn therefrom, in light of the governing law, the Court finds as follows:

The plaintiff called Defendant Barnes as his first witness. She testified that she currently lives at 46 Cedar Street in Marblehead, Massachusetts. She confirmed that she had signed the lease with Fernandez and that the lease had a monthly rental of $1,295.00 due on the first day of each month. She also identified the premises as 103 Gordon Street, Unit G4.

Barnes testified that she had not paid her half of the monthly rent ($647.50) due for the period of December 2007 through April 2008 (a total of $3,237.50). She also testified that she vacated the premises in December 2007 because the conditions at the premises were uninhabitable. In support of her testimony, she identified an Inspection Report completed by the City of Boston’s Inspectional Services Department (“ISD”) dated December 27, 2007 and signed by Thomas Miller, a housing inspector with the City of Boston. Exhibit 3.

Fernandez testified that she moved into the premises on September 1, 2007, she still lives at the premises, and she has remained current with her half of the rent due the plaintiff. She also testified that she worked for a short period of time for the plaintiff. She acknowledged receipt of both the Notice to Quit and the Summons and Complaint.

On February 20, 2008, the plaintiff served on the defendants a legally sufficient 14-day Notice to Quit for non-payment of rent, citing the defendants’ failure to pay half the rent owed for December 2007 through February 2008 (a total of $1,942.50). Exhibit S. The plaintiff commenced this summary process action on March 31, 2008 by serving the Summary Process Summons and Complaint on the defendants via Constable.

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The Court finds that the plaintiff has proven his prima facie case for possession of the premises and damages for unpaid rent in the amount of $3,237.50 ($647.50 per month for the months of December 2007 through April 2008) subject to the defendants’ defenses and Barnes’s counterclaims.

Defenses and Counterclaims

Fernandez alleges that she has not breached the terms of the lease because she has timely paid her half of the rent since the inception of the lease. However, in entering into the lease agreement, each defendant agreed to be legally responsible for the entire amount of the monthly rent. Paragraph 2 of the addendum to the lease states “All tenants and guarantors are held jointly and severally bound. The landlord may hold any such person legally responsible for all the obligations of the tenant under this lease.” Accordingly, the Court rules that Fernandez has not proven a defense to the plaintiffs claims. See Restatement (Second) of Contracts s. 289.

Defendant Barnes has raised defenses and counterclaims alleging breach of the implied warranty of habitability, breach of quiet enjoyment, retaliation, violation of M.G.L. c. 186, s. 15B, and breach of M.G.L. c. 93A.

Implied Warranty of Habitability

The implied warranty of habitability is the landlord’s promise that the premises will meet certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the tenant is in material violation of the minium standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199-200 (1973). A landlord must have actual or constructive notice of the condition creating the violation. McKenna v. Begin, 3 Mass.App.Ct. 168, 171-172 (1975).

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Damages are assessed from the date the landlord had notice of the condition of disrepair. Berman & Sons v. Jefferson, 379 Mass. 196, 203 (1979). The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises as warranted and the fair rental value of the premises with the defects. McKenna, 3 Mass.App.Ct. at 172.

Barnes testified that on or about December 27, 2007, she vacated the premises due to unsanitary conditions. She testified that after moving into the premises, she became sick some time in September 2007, remained sick through December 2007, and called ISD on or about December 2007 about the premises because of her illness. As a result of her contact, Housing Inspector Thomas Miller (“Miller”) inspected the premises on December 27, 2007. Miller issued an inspection report dated December 27, 2007, in which he identified the following conditions: (1) peeling paint in

Barnes’s bedroom; (2) a padlocked bedroom window; (3) broken windows and/or window locks; and (4) no carbon monoxide detectors. Exhibit 3. Barnes testified that she saw the plaintiff receive a copy of the December 27 inspection report. She further testified that she did not know if or when the defendant completed any repairs. Barnes also identified an undated Apartment Condition Statement. Exhibit 6. She testified that she did not show Miller a copy of the Apartment Condition Statement. She also testified that she did not return to the property after vacating in December 2007 until April 2008 in response to contact from Fernandez concerning receipt of the Notice to Quit from the plaintiff. She testified that she did not see any correction of the conditions at the premises when she visited in April 2008.

The plaintiff called as a witness Deborah DiGiordonno (“DiGiordonno”), a Housing Inspector for ISD. She testified to records related to the premises for the period of September 2007 to the date of trial. She confirmed that the initial inspection of the premises was conducted

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on December 27, 2007. She also identified the complainant as John Barnes, who had been previously identified by Barnes as her father. She continued her testimony by stating that according to a notation on the original December 27, 2007 inspection report that was in the ISD file, Exhibit 4, the plaintiff was on site during that inspection. She testified that the report indicated, “No Cause All Work Completed.” DiGiordonno indicated in her testimony that therefore, there were no violations at the premises as far as ISD was concerned on December 27, 2007.

DiGiordonno continued her testimony by stating that another complaint was received from Barnes and that an inspection in response to the complaint was conducted on April 11, 2008. As a result of the April 11, 2008 inspection, at which only Fernandez was present, DiGiordonno prepared a violation notice, Exhibit 4, to be served on the plaintiff. The following violations were listed in the April 11, 2008 report: (1) peeling and cracked paint in one of the bedrooms; (2) bathtub caulking loose and not in a clean and sanitary condition; (3) a crack in the bathroom wall; (4) no screens in the kitchen windows. DiGiordonno also called the plaintiff to advise him of the conditions. On April 16, 2008, prior to the service of the violation notice on the plaintiff, DiGiordonno reinspected the premises and determined that all of the violations had been corrected as of that date and the case was closed. See Exhibit 4.

The Court finds that Barnes has failed to produce any evidence that the plaintiff breached the implied warranty of habitability for the period of December 1, 2007 through April 10, 2008. The Court finds, however, that the defendant has met her burden as to production of evidence that the plaintiff did breach the implied warranty of habitability for the period of April 11, 2008 through April 16, 2008 and, according to DiGiordonno’s

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testimony, that the plaintiff had notice of the conditions causing

the breach on April 11, 2008.

The Court determines that the fair rental value of the premises in good repair is $1,295.00 per month and finds that the fair rental value of the premises was reduced by 10% from April 11, 2008 through April 16, 2008. The Court determines that the defendants are entitled to a rent abatement as follows: $42.58[2] per day x 10% _ $4.26 x 6 days = $25.56.

Accordingly, the amount due Barnes on her counterclaim for breach of the implied warranty of habitability is $25.56.

Quiet Enjoyment

M.G.L. c. 186, s.14 provides that any landlord who “directly or indirectly interferes with the quiet enjoyment of any residential premises . . . shall also be liable for actual and consequential damages or three month’s rent, whichever is greater, . . . which may be applied in setoff to or in recoupment against any claim for rent owed or owning.” While the statute does not require the landlord’s conduct be intentional, Simon v. Solomon, 385 Mass. 91, 102 (1982), it does require proof that the landlord’s conduct caused a serious interference with the tenant’s quiet enjoyment of the premises. A serious interference with the tenant’s quiet enjoyment is an act or omission that impairs the character and value of the leased premises. Doe v. New Bedford Housing Authority, 417 Mass. 273, 284-85 (1994); Lowery v. Robinson, 13 Mass.App.Ct. 982, 982 (1982) (rescript opinion).

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[2] The per diem rent is calculated as follows: $1,295.00 x 12 = $15,540.00, divided by 365 = $42.58.

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The allegations related to Barnes’s breach of quiet enjoyment claim arise from the same facts as the allegations related to her breach of the implied warranty of habitability claim. Under the facts as presented in this case, the Court finds that as for the inspection reports issued by ISD on both December 27, 2007 and April 11, 2008, the plaintiff took prompt and effective steps to remedy the conditions indicated in both reports and therefore the character and value of the premises were not impaired to such a degree as to constitute a breach of the covenant of quiet enjoyment. There was no additional credible testimony from either defendant that there was any other non-repair or act by the plaintiff that breached their right to quiet enjoyment of the premises.

Accordingly, judgment shall enter in favor of the plaintiff on Barnes’s counterclaim for breach of quiet enjoyment.

Retaliation

Barnes alleges that the plaintiff has retaliated against her by bringing this action against her after she reported the conditions at the premises to ISD.

A tenant has a claim for damages under M.G.L. c. 186, s. 18 if

the landlord’s act of commencing a summary process action or serving the tenant with a notice to quit was in retaliation for, among other things, the tenant reporting a violation or suspected violation of law to a health or building department or reporting a violation or suspected violation of law in writing to the landlord. Unless the tenancy is terminated for non-payment of rent, the commencement of a summary process action against a tenant or the sending of a notice to quit within six months of the tenant engaging in one or more of the protected activities enumerated in the statute creates a rebuttable presumption of retaliation. The burden then

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shifts to the landlord to rebut the presumption by presenting clear and convincing evidence that such actions were not taken in reprisal for the tenant’s protected activities, the landlord had sufficient, independent justification for taking such action, and the landlord would have taken such action even if the tenant had not taken the actions protected under M.G.L. c. 186, s. 18. A tenant who is successful in proving a claim of retaliation is entitled to the greater of actual damages or between one and three month’s rent.

A tenant who has a retaliation claim under M.G.L. c. 186, s. 18 also has a defense under M.G.L. c. 239, s. 2A to the landlord’s claim for possession. The list of protected tenant activities is the same in both statutes. Even if the tenancy is terminated for non-payment of rent (unlike the claim for damages under M.G.L. c. 186, s. 18), the commencement of a summary process action against a tenant or the sending of a notice to quit within six months of the tenant engaging in one or more of the protected activities enumerated in the statute creates the rebuttable presumption of retaliation. A tenant who is successful in proving a retaliation defense is entitled to maintain possession of the premises.

Even though the defendants’ tenancy was terminated for non-payment of rent and Barnes is not entitled to a rebuttable presumption of retaliation with respect to her counterclaim, she is entitled to a rebuttable presumption of retaliation in proving a defense under M.G.L. c. 239, s. 2A because the plaintiff served the defendants with the Notice to Quit in April 2008, which was within six months of Barnes’s father contacting ISD in December 2007 concerning the conditions at the premises. However, the Court finds that the plaintiff has overcome the statutory presumption of retaliation as he has presented clear

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and convincing evidence that notwithstanding Barnes’s contact with ISD, he would have initiated this action due to the defendants’ failure to pay all the rent due for several months. Further, there was evidence that the plaintiff immediately corrected all violations found on December 27, 2007 to the satisfaction of ISD. Barnes failed to present any additional evidence of retaliation by the plaintiff.

Accordingly, the Court finds that Barnes has not established a defense to the plaintiff’s claim for possession based on

retaliation and further finds for the plaintiff on Barnes’s retaliation counterclaim.

M.G.L. c. 186, s. 15B

Barnes alleges that she has not been presented with an accounting or credit from the plaintiff on the interest due on her last month’s rent paid in advance.

“Any lessor or his agent who receives said rent in

advance for the last month of tenancy shall, beginning with the first day of the tenancy, pay interest at the rate of five percent per year or other such lesser amount of interest as has been received from the bank where the deposit has been held. Such interest shall be paid over to the tenant each year as provided in this clause; provided, however, that in the event that the tenancy is terminated before the anniversary date of such tenancy, the tenant shall receive all accrued interest within thirty days of such termination. Interest shall not accrue for the last month for which rent was paid in advance.”

M.G.L. c. 186, s.15B(2)(a).

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Barnes has failed to establish by the preponderance of the evidence that the defendants paid to the plaintiff last month’s rent in advance and therefore that she is entitled to any interest on such payment. Although Barnes alleges in her Answer that “[a]t the inception of the tenancy, Defendants tendered first and last month’s rent to the Plaintiff,” Defendants’ Answer and Counterclaims, p. 16, Paragraph 13 of the Addendum to the Lease, which was signed by both defendants on June 22, 2007, states, “Landlord acknowledges receipt of $ 0 to be used as last month’s rent … .”

Accordingly, judgment shall enter for the plaintiff on Barnes’s M.G.L. c. 186, s. 15B counterclaim.

M.G.L. c. 93A

Barnes alleges that the plaintiff breached M.G.L. c. 93A (the Massachusetts Consumer Protection Act) and the Attorney General’s Regulations promulgated thereunder at 940 CMR 3.17 by willfully acting or failing to act regarding the conditions at the premises during her tenancy there.[3] The plaintiff does not dispute that at all times relevant to this action, he was engaged in trade or commerce with respect to the defendants as his tenants and therefore is subject to the provisions of M.G.L. c. 93A.

A landlord engages in an unfair or deceptive act or practice where he fails to comply with the State Sanitary Code within a reasonable time after receiving notice of a violation of the code. 940 CMR 3.17(1). A landlord violates G.L. c. 93A where his breach of the implied warranty of habitability is found by the Court to be material and

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[3] Barnes’s M.G.L. c. 93A counterclaim is based solely on the same allegations related to the conditions at the premises that form the basis for her breach of the implied warranty of habitability and breach of quiet enjoyment counterclaims. See Defendants’ Answer and Counterclaims, p.p.36-38.

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substantial. Cruz Management Co., Inc. V. Thomas, 417 Mass. 782, 790 (1994), citing Dorgan v. Loukas, 19 Mass.App.Ct. 959, 959-960 (1985).

The Court finds for the plaintiff on Barnes’s counterclaim brought under M.G.L. c. 93A and the Attorney General’s Regulations promulgated thereunder. The plaintiff immediately repaired the violations of the Sanitary Code discovered by ISD on December 27, 2007 and April 11, 2008 upon receiving notice of the conditions. Further, while the Court has found that the plaintiff breached the implied warranty of habitability for a period of six days in April 2008, it does not find that such breach represented a violation of M.G.L. c. 93A.

Accordingly, judgment shall enter in favor of the plaintiff on Barnes’s counterclaim for violation of M.G.L. c. 93A.

M.G.L. c. 239, s. 8A

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 is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to a defense to possession only if: (1) the landlord knew or should have known of the 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 condition cannot be remedied unless the premises are vacated. If a tenant is

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entitled to raise counterclaims pursuant to M.G.L. c. 239, s. 8A, she prevails on those counterclaims, and the amount of damages awarded to her is less than the amount of damages awarded to the landlord, she may maintain possession of the premises by tendering the net amount owed to the landlord within a week of her receipt of the court’s decision. M.G.L. c. 239, s. 8A If 5.

Defendant Barnes has prevailed on her counterclaim for breach of the implied warranty of habitability. However, the Court finds that the defendants were in arrears in rent for the month of December 2007 prior to the plaintiff having notice of the violations found by ISD on December 27, 2007 and April 11, 2008. Accordingly, the defendants have not proven a defense pursuant to

M.G.L. c. 239, s. 8A to the plaintiffs claim for possession of the premises.

Order for Judgment

In light of the evidence produced at trial, reasonable inferences drawn therefrom,

and applicable law, the Court ORDERS that judgment shall enter as follows:

1. Judgment shall enter for the Plaintiff on his claim for possession of the premises and on his claim for damages for unpaid rent in the amount of $3,237.50, which is to be set off against the damages awarded to Defendant Samantha Barnes in accordance with Paragraph 4 of this Order for Judgment;

2. Judgment shall enter for Defendant Samantha Barnes on her counterclaim for breach of the implied warranty of habitability in the amount of $25.56, which is to be set off against the damages awarded to the plaintiff in

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accordance with Paragraph 4 of this Order for Judgement;

3. Judgement shall enter for the plaintiff on Defendant Samantha Barnes’s counterclaims for breach of quiet enjoyment, retaliation, violation of M.G.L. c. 186, s. 15B, and violation of M.G.L. c. 93A.

4. The amount of damages awarded to the plaintiff in Paragraph 1 of this Order for Judgment shall be set off against the damages awarded to defendant Samantha Barnes in Paragraph 2 of this Order for Judgment, which results in a net award of damages for the plaintiff in the amount of $3,211.94.

5. Plaintiff’s execution for possession and $3,211.94 in damages, plus costs and interest to be determined by the Clerk shall issue ten (10) days from the date of entry of judgment.

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End Of Decision

HOUSING COURT

Joseph Marangiello v. Thomas J. Fraser

BRISTOL, SS

PLYMOUTH, SS

Docket # Docket No. 07-SP-07354

Parties: Joseph Marangiello v. Thomas J. Fraser

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: January 10, 2008

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

This summary process action was brought by the Plaintiff, Joseph Marangiello (“Marangiello”) against the Defendant, Thomas J. Fraser (“Fraser”) for possession and damages for unpaid rent in the amount of $7,200.00. The Defendant did not file an Answer, but did present a counterclaim at trial alleging that the Plaintiff breached the covenant of quiet enjoyment pursuant to M.G.L. c. 186, s.14. Both parties appeared pro se.

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

Plaintiff’s Claim for Possession and Unpaid Rent

Plaintiff Joseph Marangiello testified that he is the owner of a single family home at 31 Fairview Avenue in Pembroke, MA (the “Premises”). He further testified that the Defendant, a tenant-at-will, first rented the Premises in November 2006. Marangiello stated that the monthly rent is $1,250.00 per month and is due on or before the first of the month. The Plaintiff testified that, as of the trial date, the Defendant owed $6,250.00 unpaid rent for the period of August 2007 through December 2007 at the rate of $1,250.00 per month. He further stated that he had no documentation of the Defendant’s rental payments. The Court found his testimony credible.

The Plaintiff identified a Fourteen-Day Notice to Quit for nonpayment of rent, Plaintiff’s Exhibit 1, which was served on the Defendant on November 2, 2007. The Plaintiff served the Defendant with a Summons and Complaint on November 19, 2007, citing nonpayment of rent as the reason for eviction and with an Account Annexed of $7,200.00.

The Defendant Thomas J. Fraser testified that during the tenancy he paid rent to an agent of the Plaintiff, one Elizabeth Higgins, and he confirmed that he had fallen behind in his rent. He indicated in his testimony that he had made a payment of $1,250.00 for the month of September 2007, Defendant’s Exhibit 1, but further stated that he had not made any payments since September. The Court expressly notes that Defendant’s Exhibit 1, which, according to the Defendant, is a copy of the money orders given by him to the Plaintiff, indicates a total of $1,200.00 and not $1,250.00 as testified to by the Defendant. The Defendant also represented to the Court that he had discussed a payment arrangement with the Plaintiff’s wife that would provide for payment of both current amounts due and any arrears. The Plaintiff did not challenge the Defendant’s testimony and the Court finds the Defendant’s testimony credible. The Court accordingly finds that the Defendant owes rent for the months of August, October, November, and December 2007 at the monthly rate of $1,250.00, and for a portion of September 2007 in the amount of $50.00, for total rent due in the amount of $5,050.00.

A landlord has the right to possession pursuant to M.G.L. c. 239, s.1. The Court finds that the Plaintiff has proven his prima facie case for possession and damages for unpaid rent against the Defendant in the amount of $5,050.00 plus costs, calculated as follows: $1,250.00 per month for the months of August, October, November, and December 2007, and for a portion of September 2007 in the amount of $50.00. The Defendant presented his counterclaim. [1]

The Defendant’s Quiet Enjoyment Counterclaim

rental agreement, or for a violation of any other law.” M.G.L. c. 239 s.8A p.5 provides: “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 Thomas J. Fraser testified that during the month of October 2007 the Plaintiff served him with a Notice to Quit different from Plaintiff’s Exhibit 1, the Notice to Quit served on the Defendant on November 2, 2007. Fraser stated that on November 1, 2007, the Plaintiff, the Plaintiff’s father, and one other person arrived at the Premises with a pickup truck. He went on to testify that the Plaintiff advised the Defendant that he was there to remove the Defendant from the Premises. The Defendant testified that the Plaintiff attempted entry into the Premises without the Defendant’s permission. The Defendant further testified that notwithstanding the Plaintiff’s physical efforts to enter the Premises, he was able to restrain the Plaintiff and his companions from entrance to the Premises and prevented the removal of any of the Defendant’s personal property. The Court finds the Defendant’s testimony credible, as it was unchallenged by the Plaintiff.

The Defendant alleges a breach of M.G.L. c. 186, s.14, the quiet enjoyment statute. M.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…”. While the statute does not require that the landlord’s conduct be intentional, Simon v. Solomon, 385 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. 273, 284-285 (1994); Lowery v. Robinson, 13 Mass.App.Ct. 982 (1982). A landlord who locks a tenant out of his home without a court order seriously and substantially interferes with that tenant’s right to the quiet use and enjoyment of his home. Ali v. Farley, Boston Housing Court Docket No. 02-CV-00740 (Aug. 12, 2004) (Pierce, J.); Rosa v. Rodriguez, Hampden Housing Court Docket No. LE-3006-S-87 (Oct. 7, 1987)(Abrashkin, J.). Based upon the Defendant’s unchallenged testimony, the Court finds that the Plaintiff breached the covenant of quiet enjoyment by attempting to enter the Defendant’s Premises and evict him without due process of law on November 1, 2007. See id.

In calculating the damages due the Defendant for Plaintiff’s breach of the covenant of quiet enjoyment, the Court must under M.G.L. c. 186, s.14 compare the Defendant’s actual damages versus the statutory damages permitted under the statute. [2] The Defendant presented no evidence of actual damages. Therefore, the Defendant is entitled to and is awarded statutory damages of $3,750.00 computed by trebling the monthly rent of $1,250.00.

ORDER FOR JUDGMENT

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

1. Judgment enter for the Plaintiff for possession and damages for unpaid rent in the

amount of $5,050.00, plus costs.

2. Judgment enter for the Defendant on his quiet enjoyment counterclaim pursuant to M.G.L. c. 186, s.14 in the amount of $3,750.00.

3. The foregoing Order for Judgment paragraphs 1 and 2 result in a net judgment for

the Plaintiff in the amount of $1,300.00, plus costs.

cc: Joseph Marangiello

Thomas J. Fraser

Docket No. 07-SP-07354

Joseph Marangiello vs. Thomas J. Fraser

JUDGMENT

Judgment for the Plaintiff for possession, unpaid rent of $5,050.00, plus costs.

Judgment for the Defendant pursuant to M.G.L. Chapter 186, s.14, in the sum of $3,750.00; resulting in a net judgment to Plaintiff of $1,300.00 plus costs, as more specifically set forth in paragraphs 2 and 3 of the Court’s Order for Judgment.

Accordingly, judgment enters at 10:00 a.m. this 11th day of January 2008.

/s/MARK R. JEFFRIES

CLERK MAGISTRATE

Mailing List: Docket #07-SP-07354

Joseph Marangiello

18 Lake Avenue

P. O. Box 818

Pembroke, MA 02359

Thomas J. Fraser

81 Fairview Ave.

Pembroke, MA 02359

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[1] “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” M.R.C.P. 15(b). Both parties proceeded at trial as to the Plaintiff’s alleged breach of the covenant of quiet enjoyment.

[2] M.G.L. c. 186, s.14 in relevant part: “Any person who commits any act in violation of this section shall also 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.”

End Of Decision

HOUSING COURT

Melissa Tavares v. Ashley Ramunno, Special Administratrix of the Estate of Richard F. Ramunno

SOUTHEASTERN DIVISION

Docket # 06-CV-00157

Parties: Melissa Tavares v. Ashley Ramunno, Special Administratrix of the Estate of Richard F. Ramunno

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: January 28, 2008

MEMORANDUM OF DECISION ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

This civil action was brought by the Plaintiff Melissa Tavares (“Tavares”) against the Defendant Ashley Ramunno in her capacity as Administratrix of the Estate of Richard F. Ramunno (the “Defendant” or “Administratrix”). The Plaintiff, along with her three children, and the Defendant’s deceased father Richard F. Ramunno (the “Decedent”) occupied a single family home at 122 Barnes Street in Fall River, MA (the “Premises”). Mr. Ramunno was the sole owner of the Premises at the time of his death in August 2005 and was engaged to the Plaintiff. The Plaintiff shared expenses at the Premises with the Decedent.

The Plaintiff alleges in her Complaint that, within a month of Mr. Ramunno’s death, the Defendant in her capacity as Special Administratrix of the Estate of Richard F. Ramunno engaged in a so-called “self-help” eviction in removing the Plaintiff and her personal property from the Premises. The Plaintiff also alleges that the Defendant breached the covenant of quiet enjoyment, constructively evicted the Plaintiff, and illegally locked the Plaintiff out of the Premises.

The Defendant has denied the Plaintiff’s allegations. She acknowledges that the Plaintiff and the Decedent shared household expenses, but argues that a landlord-tenant relationship never existed between the Plaintiff and Richard F. Ramunno. Consequently, the Defendant has filed this Motion for Summary Judgment, in which she contends that the Plaintiff’s case should be dismissed for failure to state a claim upon which relief may be granted. The Plaintiff has opposed the Defendant’s motion.

Both parties are represented by counsel and have filed memorandum and affidavits in support of their respective positions. The Court heard oral argument on July 12, 2007.

For the reasons set forth below, the Court DENIES the Defendant’s Motion for Summary Judgment.

STANDARD OF REVIEW FOR SUMMARY JUDGMENT MOTIONS

To prevail on a Motion for Summary Judgment, the moving party must demonstrate with admissible evidence, based upon the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, that there are no genuine issues as to any material facts and that the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c); Community National Bank v. Dawes, 369 Mass. 550, 553-556 (1976). Once the moving party meets its initial burden of proof, the burden shifts to the non-moving party “to show with admissible evidence the existence of a dispute as to material facts.” Godbout v. Cousens, 396 Mass 254, 261 (1985). “A party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass.R.Civ.P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). See also Flesner v. Technical Communications Corp., 410 Mass. 805, 808-09 (1991).

DEFENDANT’S SUMMARY JUDGMENT MOTION

Undisputed Facts

Based upon the pleadings submitted by the parties, the Court finds the following material uncontested facts for purposes of this motion:

The Decedent, Richard F. Ramunno, died intestate on August 13, 2005. At the time of his sudden death, the Plaintiff, Melissa Tavares, resided with him at the Premises, a single family residence at 122 Barnes Street in Fall River, MA. The Decedent and the Plaintiff had a long-term personal relationship and were engaged to be married. Mr. Ramunno was the sole owner of the Premises, although the Plaintiff and her three children also lived there.[1]

On April 1, 2005 and April 30, 2005, the Plaintiff, either singly or jointly with the Decedent, executed various documents for the Massachusetts Department of Transitional Assistance, including

both a “Landlord Verification Form” and a “Shared Housing Verification Form”, on which there is an acknowledgment that the Decedent was the head of household and that the Plaintiff contributed to household expenses. Tavares Aff. p.p.7-9; Ramunno Aff. p.p.10-13. The Decedent indicates in the Landlord Verification Form that the Plaintiff paid rent in the amount of $350.00, and separately indicates in the Shared Housing Verification Form that the Plaintiff paid rent in the amount of $400.00 per month. Tavares Aff. p.p.7-9; Ramunno Aff. p.p.10-13.

Almost immediately following Mr. Ramunno’s death, the relationship between the Plaintiff and the Defendant deteriorated. The Defendant, as Mr. Ramunno’s eldest child, sought and was granted an appointment as Special Administratrix of Mr. Ramunno’s estate by the Bristol County Probate and Family Court on August 19, 2005.[2] At approximately the same time, the Plaintiff filed two separate actions against the Defendant either individually or in her capacity as Administratrix. The first action was an Equity Complaint in Bristol Probate and Family Court to determine whether the Decedent was the father of the Plaintiff’s child Koddie.[3] The second action brought by the Plaintiff was an application for a Temporary Restraining Order pursuant to M.G.L. c. 209A, in which the Plaintiff sought to prohibit the Defendant from entering the Premises. The Plaintiff was granted the restraining order, though with the assistance of their respective counsel the parties agreed on August 25, 2005 to dismiss the restraining order and attempt to work out a resolution as to the Plaintiff’s continued occupation of the Premises and/or the removal of the Plaintiff’s personal property from the Premises.

Subsequently, the Plaintiff attempted on September 15, 2005 and various dates thereafter to remove her personal property from the Premises. A dispute arose as to the ownership of that property. It also appears undisputed that the Defendant left some of the Plaintiff’s personal property outside the Premises in black trash bags.

Plaintiff’s Status as a Tenant of Richard F. Ramunno

The Plaintiff brought this case against the Defendant in her capacity as the Special Administratrix of the Estate of Richard F. Ramunno, arguing that she was a tenant of Mr. Ramunno prior to his death. The Defendant’s argument for summary judgment hinges on whether the Plaintiff was, in fact, a tenant of the Decedent. Based upon the pleadings, including both parties’ affidavit, the Court must find that a material fact as to the Plaintiff’s status as a tenant continues to be in dispute between the parties in this case.

A tenancy is established by agreement, either “express or implied, by which one uses and occupies the premises of another for consideration – usually the payment of rent. The relation between the tenant and the landlord is contractual.” Carlson v. Boudreau, 1985 Mass.App.Div. 72, 74 (1985) quoting Williams v. Seder, 306 Mass. 134, 136 (1940). The existence of a tenancy at will may be determined from evidence of a direct agreement between the parties or may be inferred from the parties’ conduct. The Defendant argues

that the relationship between the Decedent and the Plaintiff did not rise to the status of landlord/tenant. The Plaintiff argues that the sharing of expenses, including the payment of rent by the Plaintiff, as evidenced by information provided by the Decedent on the Department of Transitional Assistance forms supports the supposition that the Plaintiff was a tenant. As noted in her affidavit, the Plaintiff states that she “…was the girlfriend of the decedent Richard F. Ramunno,” and that the decedent executed a landlord verification form and a shared housing verification for the Department of Transitional Assistance on April 1, 2005 and April 30, 2005, respectively. Tavares Aff. p.p.5-8. Further, the Plaintiff states in her affidavit that she “…paid the decedent $400.00 in rent each month. See deposition transcript page 57, line 11-33.” Tavares Aff. p.10.

The Plaintiff submitted an affidavit to the Court in which she states that she paid monthly rent to the Decedent and therefore was his tenant. Tavares Aff. p.p.10, 12. The Court accordingly finds that the Plaintiff, as the party opposing the Defendant’s motion for summary judgment, has “set forth specific facts showing that there is a genuine issue for trial.” Mass.R.Civ.P. 56(e); Bourque v. Cape Southport Assocs., L.L.C., 60 Mass.App.Ct. 271, 277 (2004). Therefore, the Defendant’s Motion for Summary Judgment is DENIED. The Plaintiff will nevertheless have the burden at trial to provide credible and admissible evidence as to the existence of her tenancy at the Premises.

SO ORDERED.

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[1] The Defendant suggests in her Memorandum in Support of Her Motion for Summary Judgment that following the death of Richard F. Ramunno, the Plaintiff initiated an Equity Action in Bristol County Probate and Family Court to determine whether the Decedent was the father of the Plaintiff’s child Koddie Tavares. As noted in the Defendant’s Memorandum, “the plaintiff’s actions were a cause of concern for the defendant and led to the creation of hard feelings.”. Defendant’s Memorandum in Support of Her Motion for Summary Judgment, Statement of Facts.

[2] The Defendant concurrently sought an appointment as Administrator of the Estate of Richard F. Ramunno.

[3] Koddie Anthony Tavares, by his Mother and Next Friend Melissa Tavares, v. Ashley Lyn Ramunno, Special Administratrix of the Estate of Richard F. Ramunno, Bristol County Probate and Family Court, Docket No. 05E0039. At the time of the hearing on this summary judgment motion, this matter was pending.

End Of Decision

HOUSING COURT

Maria Fulgham, PLAINTIFF v. Joao Fernandes, DEFENDANT

SOUTHEASTERN DIVISION

Docket # 06-CV-01175

Parties: Maria Fulgham, PLAINTIFF v. Joao Fernandes, DEFENDANT

Judge: /s/ WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: February 15, 2008

MEMORANDUM OF DECISION ON DAMAGES PURSUANT TO MASS.R.CIV.P. 55(b)(2)

The Plaintiff Maria Fulgham (‘Fulgham’) filed this civil action against her former landlord, the Defendant Joao Fernandes (‘Fernandes’), seeking return of her security deposit and pro-rated monthly rent. In her Complaint, the Plaintiff seeks treble damages pursuant to M.G.L. c. 186, s.15B and M.G.L. c. 93A for failure to return the security deposit of $950.00. She further seeks $858.06, representing pro-rated monthly rent the Plaintiff alleges she is owed after a fire destroyed the Building which housed the Premises.

Defendant Joao Fernandes failed to appear or otherwise answer and was accordingly defaulted.[1] The Plaintiff appeared with counsel at the initial Case Management Conference and at the hearing for Assessment of Damages.

Following the Entry of Default under Mass.R.Civ.P. 55(a) by the Clerk on January 10, 2007, the Court on September 11, 2007 took testimony and received a Statement of Damages from the Plaintiff for the purposes of entering a judgment amount pursuant to Mass.R.Civ.P. 55(b)(2). The Plaintiff indicated she paid a security deposit of $950.00 to the Defendant on February 1, 2003. Complaint, Exhibit 1. For the reasons set forth below, the Court now awards the Plaintiff damages of $950.00, trebled to $2,850.00 pursuant to M.G.L. c. 186, s.15B(6) and (7), plus interest on the security deposit in the amount of $235.69 and court costs in the amount of $173.86. The Court also awards the Plaintiff $874.44 as reimbursement for overpayment of rent. Counsel for the Plaintiff has represented to the Court that she does not seek attorney’s fees.

PLAINTIFF’S SECURITY DEPOSIT CLAIM PURSUANT TO M.G.L. c. 186, s.15B

The Plaintiff has alleged in her Complaint that she paid a security deposit of $950.00 to the Defendant, none of which the Defendant has returned to the Plaintiff. The Plaintiff further states that she was a tenant of the Defendant at the Premises located at 185 Arthur Paquin Way in Brockton, MA (the ‘Premises’), from March 1, 2003 through December 3, 2003. The Plaintiff states in her Complaint that, on December 4, 2003, a fire in the Building rendered the Premises uninhabitable. The Plaintiff states that she paid the Defendant rent for the month of December 2003 in the amount of $950.00, and she now seeks a refund of $858.06, representing rent for the period of December 5, 2003 through December 31, 2003, during which the Plaintiff could not occupy the Premises due to the fire. As the Defendant has been defaulted, the Court must construe all allegations in favor of the Plaintiff. See Rosa and Pinto v. Ross, Southeastern Housing Court Docket No. 02-CV-00642 (Dec. 20, 2005)(Edwards, J.)(defaulting the Defendant and awarding the Plaintiff damages for the Defendant’s failure to comply with M.G.L. c. 186, s.15B); Acarli v. Feinberg and Shapiro, Boston Housing Court Docket No. 98-CV-00955 (Nov. 4, 1998)(Winik, J.)(defaulting the Defendant and awarding the Plaintiff damages for the Defendant’s failure to comply with M.G.L. c. 186, s.15B).

M.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.’.

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.”

M.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.”

M.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 “(a) fails to deposit such funds in an account as required by subsection (3);…(d) fails to transfer such security deposit to his successor in interest or to otherwise comply with the provisions of subsection (5) after he has succeeded to an interest in residential real property; 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 the termination of the tenancy.”

The Court finds that the Defendant violated each of the above provisions in the following ways. The Plaintiff alleges, and the Court finds, that the Defendant failed to provide the Plaintiff with a receipt for the security deposit, in violation of M.G.L. c. 186, s.15B(2)(b). Further, the Court finds that the Defendant failed to hold the security deposit in a separate-interest bearing escrow account and failed to provide the Plaintiff with a receipt indicating the location of the bank at which the security deposit was held within thirty (30) days of the Defendant’s receipt of the security deposit in violation of M.G.L. c. 186, s.15B(3)(a). The Court finds that the Defendant failed to pay interest on the security deposit in violation of M.G.L. c. 186, s.15B(3)(b)[2], nor did he return the security deposit to the Plaintiff in accordance with M.G.L. c. 186, s.15B(6)(a).

M.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.’ Pursuant to M.G.L. c. 186, s.15B(7), the Court finds that the Plaintiff is entitled to treble damages due to the Defendant’s violation of M.G.L. c. 186, s.15B(6)(a). The Court finds that the Plaintiff is entitled to damages for the Defendant’s failure to: (1) hold the security deposit in a separate, interest-bearing account; (2) provide the Plaintiff with a receipt with the location of the security deposit within thirty (30) days of receiving said deposit; and (3) return the security deposit upon demand, calculated as follows: $950.00 monthly rent trebled to $2,850.00, plus court costs in the amount of $173.86. The Plaintiff is further entitled to $235.69 in damages for interest owed on the security deposit, calculated as follows: $0.13/day[3] x 1,813 days[4] = $235.69.

The Court further finds that the Plaintiff is entitled to the return of the rent paid for that portion of December 2003 during which the Plaintiff was unable to occupy the Premises due to fire. The Plaintiff states in her Complaint that she paid rent for the month of December in the amount of $950.00, and that she was forced to vacate the Premises after a fire rendered the Premises uninhabitable on December 4, 2003. As a result, the Plaintiff seeks reimbursement of her pre-paid rent for the month of December 2003 in the amount of $858.06. The Court finds that the Plaintiff is entitled to a reimbursement in the amount of $874.44, which represents rent paid for the period of December 4, 2003 through December 31, 2003, calculated as follows: $31.23/day[5] x 28 days[6] = $874.44. SeeáGoss v. Nowacki, Boston Housing Court Docket No. 04-SP-02941 (Sept. 22, 2004)(Nasif, J.); Woods v. Leocopoulos, Hampden Housing Court Docket No. 91-SC-0099 (May 14, 1991)(Abrashkin, J.).

PLAINTIFF’S M.G.L. c. 93A CLAIM

The Plaintiff has also alleged that the Defendant violated M.G.L. c. 93A by failing to: 1) give the Plaintiff a written receipt for the security deposit at the time the Defendant received the deposit; 2) hold the security deposit in a separate interest-bearing escrow account; 3) pay interest on the security deposit; and 4) return the security deposit upon receipt of the Plaintiff’s demand for said deposit.

M.G.L. c. 93A(2)(a) states that ‘Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.’ Subsection (2)(c) states that ‘The attorney general may make rules and regulations interpreting the provisions of subsection 2(a) of this chapter…’

Pursuant to the Attorney General’s Consumer Protection Regulations codified at 940 CMR 3.17 (4)(b-d) and (k): ‘It shall be an unfair or deceptive practice for an owner to:…(b) fail to give to the tenant…a written receipt indicating the amount of the security deposit, if any, paid by the tenant, in accordance with M.G.L. c. 186, s.15B; (c) fail to pay interest at the end of each year of the tenancy, on any security deposit held for a period of one year or longer from the commencement of the term of the tenancy, as required by M.G.L. c. 186, s.15B; (d) fail to hold a security deposit in a separate interest-bearing account or provide notice to the tenant of the bank and account number, in accordance with M.G.L. c. 186, s.15B…[or] (k) otherwise fail to comply with the provisions of

M.G.L. c. 186, s.15B.’

In any action commenced under M.G.L. c. 93A, if the Court finds for the petitioner, ‘recovery shall be in the amount of actual damages or twenty-five dollars, whichever is greater, up to three but not less than two times such amount if the court finds that the use or employment of the act or practice was a willful or knowing violation of said section 2 or that the refusal to grant relief upon demand was made in bad faith with knowledge or reason to know that the act or practice complained of violated section 2.’ M.G.L. c. 93A s.9(3). Further, ‘[I]f the Court finds in any action commenced hereunder that there has been a violation of section 2, the petitioner shall, in addition to other relief provided for by this section and irrespective of the amount in controversy, be awarded reasonable attorney’s fees and costs incurred in connection with said action.’ M.G.L. c. 93A s.9(4).

The Plaintiff has alleged that the Defendant is engaged in trade or commerce as defined by M.G.L. c. 93A and that some or all of the Defendant’s acts constituted unfair or deceptive acts under the statute. The Court finds that the Plaintiff has met her burden as to the Defendant’s liability under M.G.L. c. 93A, as the Court finds that the Defendant owns the Building that houses the Premises and rents apartments therein but did not live in the Building. See Haywood v. Harrison, Boston Housing Court Docket Nos. 02-SP-02797 and 02-SP-02798 (May 12, 2006)(Pierce, C.J.).

The Court further finds that the Defendant has violated 940 CMR 3.17 in the following ways. The Plaintiff alleges and the Court finds that the Defendant failed to give a written receipt for the Plaintiff’s security deposit as required by 940 C.M.R. 3.17(4)(b) and M.G.L. c. 186, s.15B(2)(b). The Plaintiff alleges and the Court finds that the Defendant failed to place the Plaintiff’s security deposit in a separate interest-bearing bank account in accordance with 940 C.M.R. 3.17(d) and M.G.L. c. 186, s.15B(3)(a). The Plaintiff alleges and the Court finds that the Defendant failed to pay interest on the Plaintiff’s security deposit, in violation of 940 C.M.R. 3.17(4)(c) and M.G.L. c. 186, s.15B(3)(b). Additionally, the Plaintiff alleges and the Court finds that the Defendant has failed to return the security deposit upon demand, in violation of 940 C.M.R. 3.17(4)(k) and M.G.L. c. 186, s.15B(6)(a). Accordingly, the Court finds that the Defendant is subject to statutory damages of $25.00 for each violation. The Court therefore awards the Defendant $100.00 for the four separate violations of M.G.L. 93A and the Attorney General’s Regulations at 940 CMR 3.17(4)(b-d) and (k).[7]

On November 3, 2006, the Court determined that the Plaintiff was indigent pursuant to M.G.L. c. 261, s.27C, and ordered that court costs in the amount of $173.86 be waived. M.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., $4,060.13, plus costs of $173.86. Therefore, pursuant to M.G.L. c. 261, s.27E, the Plaintiff shall pay

the sum of $173.86 in costs to the Clerk’s Office no later than thirty (30) business days following the date that judgment enters.

ORDER FOR AWARD OF DAMAGES ON DEFAULT 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 the Defendant’s failure to return the security deposit pursuant to M.G.L. c. 186, s.15B(7) in the amount of $950.00, trebled to $2,850.00, plus costs in the amount of $173.86.

2. Judgment enter for the Plaintiff for damages for the Defendant’s failure to pay interest on the security deposit in the amount of $235.69.

3. Judgment enter for the Plaintiff on her claim for overpayment of rent in the amount of $874.44.

4. Judgment enter for the Plaintiff on her claim pursuant to M.G.L. c. 93A in the amount of $100.00 for violations of 940 C.M.R. 3.17(4)(b-d) and (k).

5. The Plaintiff shall pay the sum of $173.86 in costs to the Clerk’s Office no later than

thirty (30) business days following the date that judgment enters.

6. Execution shall issue thirty (30) days from the date that judgment enters.

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[1] Mass.R.Civ.P. 55(b)(6) provides, in pertinent part: ‘…[N]o judgment by default shall be entered until the filing of an affidavit made by any competent person, on the affiant’s own knowledge, setting forth facts showing that the defendant is not a person in military service as defined in Article I of the æSoldiers’ and Sailors’ Civil Relief Act’ of 1940, as amended, except upon order of the court in accordance with the Act.’ Accordingly, judgment shall not enter against the Defendant until said military affidavit is appropriately filed with this Court.

[2] Mass.R.Civ.P. 54(c) provides, in pertinent part: ‘Except as to a party against whom a judgment is entered by default, every 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.’

[3] The per diem interest rate is calculated as follows: $950.00 security deposit x 5% = $47.50 ? 365 days = $0.13/day.

[4] The period from March 1, 2003, the date the tenancy commenced, through February 15, 2008, the date of this Decision, consists of 1,813 days.

[5] The per diem rental rate is calculated as follows: $950.00 monthly rent x 12 = $11,400.00 ? 365 days = $31.23/day.

[6] The period from December 4, 2003 through December 31, 2003 consists of 28 days.

[7] The Court does not award the Plaintiff double or treble damages, as the Court finds that the Defendant’s violations of M.G.L. c. 93A were not willful or knowing.

End Of Decision

HOUSING COURT

Peter Georgantas v. Lisa Semper

SOUTHEASTERN DIVISION

Docket # 07-SP-07777

Parties: Peter Georgantas v. Lisa Semper

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: February 12, 2008

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

This summary process action was brought by the Plaintiff, Peter Georgantas (“Georgantas”), against the Defendant, Lisa Semper (“Semper”), for non-payment of rent and possession. The Defendant did not file an Answer and vacated the Premises on December 14, 2007. Possession is moot. Both parties appeared pro se.

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

The Plaintiff testified that he owns a three-family building (the “Building”) located at 20 Ellis Street in Brockton, MA. The Plaintiff stated that the Defendant, a tenant-at-will, has resided in Apartment 1 on the first floor (the “Premises”) for approximately three (3) years with her two children. He further stated that the Defendant vacated the Premises on or about December 15, 20007.

The Plaintiff, Peter Georgantas, testified that the contract rent for the Premises was $1,350.00, but that the Defendant Lisa

Semper received a voucher subsidy during a portion of her tenancy. Georgantas stated that the subsidy payment was $932.00 monthly, and that the Defendant paid the remaining $418.00 monthly for a total contract rent for the Premises of $1,350.00. The Plaintiff further stated that, in June of 2006, the Defendant’s subsidy was reduced to $797.00 per month. The Defendant continued to pay her portion of $418.00 a month, although the contract rent remained $1,350.00 per month, leaving a deficit of $135.00 monthly for the period of June 2006 through the end of November 2006. The Plaintiff testified that the Defendant owes total unpaid rent in the amount of $810.00, calculated at the rate of $135.00 per month for the period of June through November 2006.

The Plaintiff testified that beginning in December 2006 and continuing through April of 2007, the Defendant failed to make her monthly payments (though he did receive the monthly subsidy payments of $797.00), leaving a total deficit for those months in the amount of $2,765.00, calculated at the rate of $553.00 per month.

The Defendant’s subsidy was terminated in May of 2007. At that time, the Plaintiff testified and the Defendant confirmed that they entered into an agreement under which the Defendant would pay $1,000.00 per month to the Plaintiff, of which $900.00 would be attributed to rent and $100.00 would be applied to the Defendant’s arrearages. The Plaintiff testified that the Defendant paid $1,000.00 monthly for the period of May 2007 through September 2007 but did not make any payments for the months of October, November and December 2007. He was credible in his testimony.

The Plaintiff served the Defendant with a Fourteen-Day Notice to Quit on November 26, 2007, alleging unpaid rent in the amount of $4,875.00 for all unpaid rent due from June 2006 through the end of November 2007. Plaintiff’s Exhibit 1. The Plaintiff served the Defendant with a Summons and Complaint on December 14, 2007, alleging unpaid rent in the amount of $5,775.00. At trial, the Plaintiff moved to amend the Summons and Complaint to request only a portion of rent for the month of December 2007. The Plaintiff now seeks unpaid rent for the period of December 1, 2007 through December 14, 2007, in the amount of $450.00, for a Total Account Annexed of $5,325.00.[1] The Court granted the Plaintiff’s Motion to Amend Account Annexed.

The Defendant testified that she owed the rental amounts due for portions of 2006 and 2007 but was not aware that she had to make up the difference when her subsidy was reduced. While the Court found her testimony plausible, it did not find it a credible defense.

A landlord has the right to possession pursuant to M.G.L. c. 239, s.1. The Court finds that the Plaintiff has proven his prima facie case for damages against the Defendant for unpaid rent in the amount of $5,289.26, plus costs, calculated as follows: $135.00 per month unpaid rent for the period of June through November 2006; $553.00 per month unpaid rent for the period of December 2006 through April 2007; $900.00 unpaid rent for the months of October and November 2007; $414.26 unpaid rent for the month of December 2007[2]; less $500.00 in payments made towards arrearages at the rate of $100.00 per month for the months of May through September 2007, for a total unpaid rent in the amount of $5,289.26.

The Defendant at trial alleged that the Plaintiff breached the implied warranty of habitability by failing to maintain certain portions of the Premises including the heating system and drafty windows.[3]

The implied warranty of habitability is the landlord’s promise that the premises will meet certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the tenant is in material violation of the minimum standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). A landlord must have actual or constructive notice of the condition creating the violation. McKenna v. Begin, 3 Mass.App.Ct. 168 (1975). Damages are assessed from the date the landlord had notice of the condition of disrepair. Berman & Sons v. Jefferson, 379 Mass. 196 (1979). The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises as warranted and the fair rental value of the premises with the defects. McKenna v. Begin, supra at 172.

The Defendant submitted a Notice of Violation from the City of Brockton Board of Health (“BOH”), violation #916569 dated November 28, 2007, Defendant’s Exhibit A, resulting from an inspection of the Premises on November 26, 2007. According to the Notice of Violation, which is directed to the Plaintiff, Sanitary Inspector Michael Weydt indicated the following violations of 105 CMR 410.00 Chapter II, Minimum Standards of Fitness for Human Habitation: “410.351 Have all outlets checked by a licensed electrician; 410.351 Repair patches and leaks in all steam pipes in basement; 410.503 Install a handrail 36 inches high on the open side of the basement stairs; 410.352 Maintain asbestos pipe insulation intact; 410.200 Repair furnace to provide heat consistently; 410.351 Repair leaking toilet; 410.500 Replace rear storm door handle.” Defendant’s Exhibit A.

The Defendant testified that the above items were not repaired prior to the time she vacated the Premises on December 14, 2007. She was credible in her testimony. The Defendant also testified that she advised the Plaintiff of the problems described in Defendant’s Exhibit A, including specific problems with the boiler, but she was unable to document such notification. The Plaintiff testified that he received the BOH letter sometime after November 28, 2007 and credibly denied knowledge of any of the violations identified in the letter.

The Court finds that, in the aggregate, the violations identified in the Brockton Board of Health letter of November 28, 2007, Defendant’s Exhibit A, including electrical violations, leaks in steam pipes in the basement, missing handrail in the basement, problems with the furnace and asbestos piping, leaking toilet and broken rear storm door handle, constitute a material breach of the implied warranty of habitability. The Court finds that the Defendant is entitled to a rent abatement based upon these violations, none of which were cured prior the time she vacated the Premises on December 14, 2007. The Court determines that the Defendant is entitled to an abatement of rent in the amount of $124.32, or thirty (30) per cent,

for the period from December 1, 2007 to December 14, 2007 (allowing 3 days for receipt of the BOH letter via the mail), calculated as follows: $29.59/day[4] x 30% = $8.88/day abatement x 14 days[5] = $124.32.

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 $5,289.26, plus costs in the amount of $167.50.

2. Judgment enter for the Defendant on her counterclaim for breach of the implied warranty of habitability in the amount of $124.32.

3. The foregoing Orders for Judgment paragraphs 1 and 2 result in a net judgment for the Plaintiff in the amount of $5,332.44.

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

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[1] The Court notes that there is a mathematical error on the Plaintiff’s Motion to Amend the Account Annexed. The Plaintiff deducts $450.00 from the original sum owed of $5,775.00, and calculates the total as $5,320.00. The Court finds that the total for the Amendment should be $5,325.00.

[2] The rent due for the month of December is calculated as follows: $900.00 monthly rent x 12 months = $10,800.00 ? 365 days = $29.59/day x 14 days (the period of December 1, 2007 through December 14, 2007 consists of 14 days) = $414.26.

[3] “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Mass.R.Civ.P. 15(b). Both parties proceeded at trial as to the conditions at the Premises.

[4] The per diem rental rate is calculated as follows: $900.00 per month x 12 months = $10,800.00? 365 = $29.59/day.

[5] The period from December 1, 2007 through December 14, 2007 consists of 14 days.

End Of Decision

HOUSING COURT

Jean Lau, Trustee Lau Family Trust, PLAINTIFF v. Heidi Erickson

DEFENDANT

SOUTHEASTERN DIVISION

Docket # 07-SP-05555

Parties: Jean Lau, Trustee Lau Family Trust, PLAINTIFF v. Heidi Erickson

DEFENDANT

Judge: /s/ WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: February 14, 2008

MEMORANDUM OF DECISION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

This summary process action was brought by the Plaintiff, Jean Lau as Trustee of the Lau Family Trust (‘Plaintiff’ or ‘Lau’ unless the context suggests differently) against the Defendant, Heidi Erickson (‘Defendant’ or ‘Erickson’) as to a second floor residential apartment unit located at 57 Court Street in Plymouth, Massachusetts (the ‘Premises’). The Plaintiff seeks possession of the Premises as a result of the expiration of a one-year lease agreement between the parties.

The Defendant Heidi Erickson has filed an Answer with fifteen counterclaims against the Plaintiff.[1] These counterclaims alleged the following general causes of action: a) breach of contract; b) breach of quiet enjoyment (four separate allegations); c) unjust enrichment; d) discrimination (three separate allegations); e) negligence; f) retaliation; g) breach of the implied warranty of habitability; h) breach of the security deposit statute; and i) infliction of emotional distress. The Defendant also sought damages pursuant to M.G.L. c. 93A.

The Plaintiff was represented by counsel; the Defendant was pro se.

At the direction of the Court following a hearing on August 22, 2007, the parties were ordered to file motions for summary judgment. The Court scheduled a hearing on the cross-motions for October 4, 2007. The Defendant, notwithstanding notice of the time and location of the Summary Judgment hearing, failed to appear to argue her summary judgment pleadings and her opposition. For the reasons set forth below, the Plaintiff’s Motion for Summary Judgment as to possession is ALLOWED, and the Defendant’s Cross-Motion for Summary Judgment as to possession is DENIED. Also for the reasons set forth below, the Plaintiff’s Motion for Summary Judgment as to each count of the Defendant’s Counterclaims is ALLOWED, and the Defendant’s Cross-Motion for Summary Judgment as to those counts of her Counterclaims on which she filed a Cross-Motion is DENIED.[2]

STANDARD OF REVIEW OF SUMMARY JUDGMENT MOTIONS

To prevail on a Motion for Summary Judgment, the moving party must demonstrate with admissible evidence, based upon the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, that there are no genuine issues as to any material facts and that the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c). Community National Bank v. Dawes, 369 Mass. 550, 553-556 (1976). Once the moving party meets its initial burden of proof, the burden shifts to the non-moving party ‘to show with admissible evidence the existence of a dispute as to material facts.’ Godbout v. Cousens, 396 Mass. 254, 261 (1985). ‘A party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass.R.Civ.P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case.’ Kourouvacilis v. General Motors Corp., 410

Mass. 706, 716 (1991). See also Flesner v. Technical Communications Corp., 410 Mass. 805, 808-09 (1991).

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT AS TO POSSESSION

Based upon the pleadings submitted by the parties, the Court finds the following material uncontested facts:

The Plaintiff is the owner of a mixed-use building at 55-57 Court Street, Plymouth, Massachusetts consisting of two commercial units on the first or ground floor and two separate residential apartments on the second floor above the commercial units. The commercial units are a Chinese restaurant called Happy Garden and a skin piercing parlor entitled ‘Pin Cushion’. The Plaintiff does not own either commercial establishment. The Plaintiff does not have any employees and does not control any of the employees of either commercial establishment, though she is an employee of Happy Garden. Lau Aff. p.p.1-7.

On or about May 4, 2006, the parties entered into a written lease for the Premises located on the 2nd floor at 57 Court Street for a period commencing May 24, 2006 and terminating on May 31, 2007 (the ‘Lease’). Lau Aff. p.16, Exhibit B. Concurrently, the parties entered into a Section 8 Voucher Lease with the Cambridge Housing Authority (‘CHA’) for the Premises with a termination date of May 31, 2007 (the ‘HAP Contract’). Lau Aff. p.17, Exhibit C. On or about March 13, 2007, the Plaintiff served both the Defendant and the Cambridge Housing Authority with notice of her intention to not renew the Lease upon its expiration on May 31, 2007. Lau Aff. p.38, Exhibit Q. The Plaintiff on March 22, 2007 and April 24, 2007 served both the Defendant and the Cambridge Housing Authority with additional notices of her intention not to renew the Defendant’s Lease. Lau Aff. p.39, Exhibit R. The Cambridge Housing Authority acknowledged receipt of the notification from the Plaintiff of her intention to not renew the Lease upon its expiration on May 31, 2007. Johnston Aff. p.12, Exhibit 3. The Plaintiff on June 1, 2007 served a 72-Hour Notice to Quit and Vacate the Premises on both the Defendant and the CHA. Lau Aff. p.41, Exhibit T; Johnston Aff. p.17, Exhibit 5. On June 7, 2007, the Plaintiff served a Summary Process Summons and Complaint on the Defendant, with a copy to the CHA. Lau Aff. p.42, Exhibit U; Johnston Aff. p.17, Exhibit 5. The Cambridge Housing Authority acknowledged receipt of both the Plaintiff’s Notice to Quit and Vacate the Premises and the Summary Process Summons and Complaint. Johnston Aff. p.17, Exhibit 3.

As set forth in the Housing Assistance Payment Contract, Part B, the Term of the Contract is listed as follows: ‘4. Term of HAP Contract a. Relation to lease term. The term of the HAP contract begins on the first day of the initial term of the lease and terminates on the last day of the term of the lease (including the initial lease term and any extensions). b. When HAP contract terminates. 1) The HAP contract terminates automatically if the lease is terminated by the owner or the tenant.’ Lau Aff. p.17, Exhibit C. The Lease provides: ‘The term of this Lease is 1 year, beginning on 6/1/2006 and continuing through 5/31/2007 or until and unless there is an earlier termination pursuant to the terms and conditions of this Lease. This Lease shall automatically self-extend from year to year under the same terms and conditions as the initial

Lease and shall continue in full force and effect from year to year after the expiration of the initial term of the Lease, unless and until either the Landlord or the Tenant gives the other party 30 days prior written notice of intention to terminate this Lease on the last day of the initial term or the last day of any extended term. In the event that either party elects to terminate this Lease, a copy of the written notice of intention to terminate the Lease shall be provided by said party to the Housing Authority.’ Lau Aff. p.16, Exhibit C (emphasis added).

The Court finds that the Plaintiff has shown that no genuine issue of material fact exists with respect to the expiration of the Lease on May 31, 2007. The Court finds that the Plaintiff notified the Defendant that she did not, as the landlord, intend to renew the Lease beyond its initial term and that such notification was not only timely but clearly pursuant to the requirements of the Lease and the HAP Contract. See Lau Aff. Exhibits C, Q, R, S. Contrary to the Defendant’s arguments in her Cross-Motion for Summary Judgment, the Court finds as a matter of law that the Plaintiff was not required under the terms of either the Lease or the HAP Contract to renew the tenancy with the Defendant nor was the Plaintiff required to give a reason for the non-renewal. See Kifle v. Phillips, Boston Housing Court Docket No. 02-SP-03519 (Aug. 28, 2002)(Chaplin, J.); Skinner v. Austin, Boston Housing Court Docket No. 02-SP-02570 (Aug. 9, 2002)(Edwards, J.). The Lease expired by its own terms on May 31, 2007 after the Plaintiff elected not to renew the Lease. She informed the Defendant and the Cambridge Housing Authority of that decision. Further, the Defendant was given ample notice as to the expiration of the Lease and sufficient time to vacate the Premises. See Lau Aff. p.p.38-39, Exhibits Q and R.

The Court finds that there are no genuine issues of material fact in dispute as to the issue of possession, and finds that the Plaintiff is entitled to summary judgment as a matter of law on that issue. Accordingly, the Plaintiff’s Motion for Summary Judgment as to possession is ALLOWED and the Defendant’s Cross-Motion for Summary Judgment as to possession is DENIED. Execution shall issue for possession ten (10) days from the date judgment enters.

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON DEFENDANT’S COUNTERCLAIMS

In her Motion for Summary Judgment, the Plaintiff contends that she is entitled to summary judgment as a matter of law with respect to each count of the Defendant’s Counterclaims, and has supported her Motion with a Memorandum and the Affidavits of Jean Lau, Trustee, Lau Family Trust, Mark Elsner, Wiring Inspector, Town of Plymouth, MA, Michael Johnston, Director of Leasing and Occupancy, Cambridge Housing Authority, and Susan Merrifield, Inspector, Plymouth Board of Health. As previously noted, the Court (Edwards, J.) allowed the Plaintiff’s Motion To Strike the Defendant’s Opposition to the Plaintiff’s Motion for Summary Judgment for failure to comply with M.R.Civ.P. 5(b), and the Defendant has not filed a Cross-Motion for Summary Judgment with respect to Count II, Count III, Count IV, Count VI, Count IX, Count X, Count XIV and Count XV of her Counterclaims. The Court will next consider the Plaintiff’s Motion for Summary Judgment on Count II, Count III, Count IV, Count VI, Count IX, Count X, Count XIV and Count XV of the Defendant’s Counterclaims.

COUNTERCLAIM II

Breach of Quiet Enjoyment (Entry Without Permission)

The Defendant has alleged that the Plaintiff has breached the covenant of quiet enjoyment by entering the Premises without permission. The Plaintiff denies the Defendant’s allegations and argues that the Defendant has failed to state with any particularity the date of any alleged entry. The Plaintiff further argues that this issue had previously been litigated in #06-CV-01103, Heidi Erickson v. Jean Lau, Trustee (‘Erickson I’). In Erickson I, this Court, Edwards, J., granted Erickson a Preliminary Injunction on July 25, 2006 requiring that Lau provide Erickson with at least 24-hours written notice prior to entry into the Premises.[3] The Plaintiff now argues that, as the Defendant has alleged no unapproved entry by the Plaintiff after July 25, 2006, this claim is barred by res judicata. The Defendant failed to file an opposition to the Plaintiff’s request for summary judgment, nor did she file a cross-motion for summary judgment.

In support of her Motion for Summary Judgment, the Plaintiff states in her Affidavit that she has only entered the Premises in the presence of the Defendant and after providing adequate notice. Lau Aff. p.47.[4] The Plaintiff further contends that after this Court issued a Preliminary Injunction on July 25, 2006 restricting her access to the Premises, the only time she was in the Premises was in the presence of the Defendant. Lau Aff. p.47.

The Defendant has failed to file any pleading or affidavit in support of this counterclaim or to rebut the Plaintiff’s motion for summary judgment.[5] The Plaintiff stated in her affidavit that she only entered the Premises with the Defendant’s permission and with the Defendant present. The Court therefore finds that there are no genuine issues of material fact in dispute with respect to this count of the Defendant’s Counterclaims, and finds that the Plaintiff is entitled to summary judgment as a matter of law on this Count of the Defendant’s Counterclaims. Accordingly, the Plaintiff’s Motion for Summary Judgment is ALLOWED with respect to Count II of the Defendant’s Counterclaims.[6]

COUNTERCLAIM III

(Unjust Enrichment)

The Defendant alleges that the Plaintiff has been unjustly enriched as a result of the Defendant’s actions in supplying labor and materials to the Premises. The Defendant seeks payment of

approximately $8,000.00 for labor related to the installation of various fixtures along with painting within the Premises. She also seeks reimbursement for materials including a kitchen sink, two solid oak French doors, a solid oak beveled glass bathroom door, new kitchen and bathroom faucets, a new customized butcher block kitchen countertop, a new toilet seat, and paint.

The Plaintiff has moved for summary judgment, arguing that on res judicata grounds the Defendant’s claim for reimbursement for materials fails, as she has been paid for the materials pursuant to a previous action, and that she waived her claim for reimbursement for labor in that action. The Plaintiff further argues that the Defendant may not prevail on the unjust enrichment claim because there is no showing that: 1) a benefit was conferred upon the Plaintiff; 2) the Plaintiff appreciated or had knowledge of any benefit conferred upon her; or, 3) the Plaintiff accepted the benefit under such circumstances as to make it inequitable for the Plaintiff to retain the benefit without payment for its value. The Defendant did not file a cross-motion for summary judgment.

A claim of unjust enrichment lies when the defendant holds property under such circumstances that, in good conscience and equity, he or she should not be permitted to retain the property. Sutton v. Valois, 66 Mass. App. Ct. 258, 265 (2006). In determining whether the defendant should be permitted to retain the property, the Court will look to the reasonable expectations of the parties, and whether permitting the defendant to retain the property would result in a windfall. Id. An individual who has been unjustly enriched must pay restitution to the injured party, in an effort to rectify the unjust enrichment. Fox v. F & J Gattozzi Corp., 41 Mass. App. Ct. 581, 589 (1996). The fact that a person benefitted from another, without evidence that such benefit exceeded the reasonable expectation of the parties, is not sufficient to prove unjust enrichment. See Cox v. Cox, 56 Mass.App.Ct. 864, 873 (2002).

The Plaintiff states in her affidavit in support of her motion for summary judgment that in a letter from the Defendant dated July 26, 2006, the Defendant stated that she agreed to leave the

‘installed purchases,’ including, but not limited to, the replacement kitchen sink, the kitchen and bathroom faucets, the kitchen countertop, bathroom door, two French doors and the bathroom cabinet upon her departure from the Premises. Lau Aff. p.30, Exhibit K.[7]

The Court, in its October 27, 2006 Order for Judgment in Erickson I,[8] notes that the Plaintiff reimbursed the Defendant $157.59 on August 11, 2006 for supplies, including a carbon monoxide detector and paint, in accordance with a previous order in that case. See Erickson I, page 3. As set forth in paragraph 34 of Lau’s Affidavit and Exhibit N attached thereto, the Defendant states in an undated letter: ‘Dear Jean: the washer & dryer are working, the exhaust fan too. Thank you. The place is great. Looks great too! Thank you again for your time. Yours, Heidi.’ Lau Aff. p.34, Exhibit N.

The Court finds that the Defendant advised the Plaintiff that she would leave the fixtures she installed in the Premises at the end of her tenancy: ‘I agree, as I always have, to leave the installed purchases including the bathroom faucet in the apartment upon my departure…I will not take with me upon my departure from the apartment even if you attempt to seek possession through a court action for eviction.’ Lau Aff. p.30, Exhibit K. The Court further

finds that, based upon the Defendant’s written representations, the Plaintiff reasonably expected that the Defendant would leave the fixtures at the Premises upon the Defendant’s departure. The Court also finds that the Defendant waived any claim for labor during a hearing in Erickson I.[9]

The Court therefore finds that there are no genuine issues of material fact in dispute with respect to this count of the Defendant’s Counterclaims, and finds that the Plaintiff is entitled to summary judgment as a matter of law on this Count of the Defendant’s Counterclaims.[10] Accordingly, the Plaintiff’s Motion for Summary Judgment on Count III of the Defendant’s Counterclaims is ALLOWED.

COUNTERCLAIM IV

Breach of Quiet Enjoyment (Interference with Utilities)

The Defendant has alleged that the Plaintiff violated the covenant of quiet enjoyment by failing to correct a problem with electricity amperage and gas usage for the period May 2006 through October 2006. Specifically, the Defendant alleges that the electrical amperage and intensity in the Premises diminished when the restaurant below her apartment opened for business. Further, she claims that due to a gas leak in the stove, she sustained excessive charges from the utility company. The Plaintiff has now moved for summary judgment; the Defendant has failed to file either a cross-motion for summary judgment on this counterclaim or an opposition to Plaintiff’s motion.

This Court has previously ruled on a portion of the Defendant’s allegations, Erickson I, and the Court takes judicial notice of that decision. As noted in the October 27, 2006 Judgment in favor of Erickson in Erickson I, the Court awarded Erickson the sum of $329.00 plus costs of $290.32 (which were to be paid directly to the Court) for the Plaintiff’s breach of the implied warranty of habitability.[11] As set forth in paragraph 35 and Exhibit O of Lau’s Affidavit, the Defendant advised Lau via written correspondence that the Defendant intended to file a motion to amend the October 27, 2006 Judgment to incorporate additional alleged violations of the

State Sanitary Code, including gas overcharges. Lau asserts that, after the Defendant had done so, the parties negotiated and entered into a Settlement Agreement dated November 25, 2006 in which Lau made an additional payment of $181.45 to Erickson in exchange for settlement of all claims by Erickson against Lau.[12] Lau Aff. p.36, Exhibit P. Lau further asserts that res judicata operates to bar all of Erickson’s claims for problems with the utilities, as those claims could have been made during the trial in Erickson I.

The Defendant alleges that the electrical problems existed prior to October 2006, and that the gas leak existed during the summer of 2006. Tenant’s Answer and Counterclaims, p.15. The Plaintiff and the Defendant signed a Settlement Agreement dated November 25, 2006 in which Lau made an additional payment of $181.45 to Erickson in exchange for settlement of Erickson’s claim for gas overcharges, and the Defendant has failed to allege any problems with gas overcharges since the date of that Settlement Agreement. The Court therefore finds that, by the terms of the November 25, 2006 Settlement Agreement the Defendant was compensated for any gas overcharges alleged in Count IV of her Counterclaim, and has waived that claim.

The Court therefore finds that there are no genuine issues of material fact in dispute with respect to the Defendant’s claim for interference with utilities, and finds that the Plaintiff is entitled to summary judgment as a matter of law on this Count of the Defendant’s Counterclaims. Accordingly, the Plaintiff’s Motion for Summary Judgment is ALLOWED with respect to Count IV of the Defendant’s Counterclaims.[13]

COUNTERCLAIM VI

(Discrimination-General)

The Defendant has alleged that the Plaintiff discriminated against her by chastising her due to her disability and causing or inviting an employee ‘… to loudly denouncing her as æretarded’ in front of the general public. In addition, encourage said employee to use unlawful tactics to harass Tenant, threaten and stalk Tenant.’ [sic] Defendant/Tenant’s Answer, Counterclaims, and Demand for a Jury Trial, p.20. The Plaintiff, in her Motion for Summary Judgment, has denied the Defendant’s allegations and further states that she does not have any employees. The Defendant did not file a Cross-Motion for Summary Judgment as to this counterclaim, nor did she file an opposition to the Plaintiff’s motion.1

A party alleging discrimination must first establish his or her prima facie case by showing that he or she is a member of a protected class who was denied an opportunity, ostensibly on the basis of membership within that protected class. See McDonnell Douglas Corp., v. Green, 411 U.S. 792, 802 (1973); Wheelock College v. Mass. Comm. Against Discrimination, 371 Mass. 130, 138 (1976); Rix v. Vachon, 10 M.D.L.R. 1431 (Mass. Comm. Against Discrimination October 17, 1988). If the complainant makes out his or her prima facie case, the burden shifts to the respondent to show that there was a legitimate, nondiscriminatory reason for the actions taken with respect to the complainant and, further, the respondent must produce credible evidence to show that the reason or reasons advanced were the real reasons for said action. See id. If the respondent is able to rebut the complainant’s prima facie case by showing a legitimate nondiscriminatory reason for the actions taken, the complainant then has an opportunity to show that the respondent’s given reasons are

merely pretextual. See id.

In Erickson’s claim for discrimination, she alleges that Lau discriminated against her by repeatedly chastising her for her disabilities and, further, permitting an employee to ‘denounce her as æretarded.” Defendant/Tenant’s Answer, Counterclaims, and Demand for a Jury Trial, p.20. Although the Defendant submitted affidavits and pleadings to indicate that she is an individual with some disability, see Defendant/Tenant’s Verified Motion for Summary Judgment and attached 2006 Fraser Aff., the Court finds that Defendant has failed to submit affidavits in support of her contention that the Plaintiff took some negative action against Erickson because of her disability. Erickson alleges that an employee, at the direction of Lau, insulted Erickson, but the Court has expressly found in this Decision that the Plaintiff does not have any employees.[15] Lau Aff. p.p.7, 10. The Court therefore finds that there are no genuine issues of material fact in dispute with respect to this count of the Defendant’s Counterclaims and finds that the Plaintiff is entitled to summary judgment as a matter of law on this Count of the Defendant’s Counterclaims. Accordingly, the Plaintiff’s Motion for Summary Judgment is ALLOWED with respect to Count VI of the Defendant’s Counterclaims.

COUNTERCLAIM VIII (sic)[16]

(Breach of Quiet Enjoyment-Threats)

The Defendant in this counterclaim has alleged that the Plaintiff, through the actions of an employee, specifically one Sean McAfee (‘McAfee’), has breached the covenant of quiet enjoyment. The Defendant alleges that McAfee interrupted the Defendant during sleeping hours, stalked and chased her, and called her names. Erickson also states that McAfee threw rocks at the Premises, thereby breaking the Defendant’s window. She has further alleged that the Plaintiff was present during these events and that McAfee acted as the Plaintiff’s agent.[17] The Plaintiff has denied the allegations. The Defendant did not file a cross-motion for summary judgment.

In support of her Motion for Summary Judgment, the Plaintiff states in her Affidavit that the Trust does not have any employees and, further, that she does not control the employees of the two commercial establishments in the Building, one of which is the Happy Garden Restaurant.[18] Lau Aff. p.p. 6-10. Lau specifically states that ‘[t]he Lau Family Trust has no control over McAfee nor is McAfee an agent of the Lau Family Trust.’ Lau Aff. p.10. She also argues that the events described in the Defendant’s Complaint are highly speculative as to the identity of the person who allegedly broke the Defendant’s window. Lau Aff. p.37.

The Defendant has failed to file any pleading in support of this specific counterclaim or to otherwise rebut the Plaintiff’s motion for summary judgment. The Defendant alleges in her complaint and in other pleadings that McAfee threatened her in the presence of the Plaintiff, Defendant/Tenant’s Verified Motion for Summary Judgment, Erickson Aff. p.6, but she fails to provide any evidence that the Plaintiff employed McAfee or that McAfee otherwise acted as the Plaintiff’s agent.

The Court therefore finds that there are no genuine issues of material fact in dispute with respect to this Count of the Defendant’s Counterclaims and finds that the Plaintiff is entitled to summary judgment as a matter of law on this Count of the Defendant’s Counterclaims. Accordingly, the Plaintiff’s Motion for Summary Judgment is ALLOWED with respect to Count IX of the Defendant’s Counterclaims.

COUNTERCLAIM X

Negligence

The Defendant in this counterclaim alleges that the Plaintiff negligently maintained the Premises by failing to remove garbage and other waste from the common areas.[19] The Plaintiff has moved for summary judgment, arguing that the Defendant has failed to plead or allege the four elements of negligence and to otherwise support her claim with sufficient pleadings and affidavits. The Defendant failed to file a cross-motion against the Plaintiff on this counterclaim.

Negligence is the failure to exercise that degree of care which a reasonable person would exercise under the circumstances. Morgan v. Lalumiere, 22 Mass. App. Ct. 262 (1986), review denied, 398 Mass. 1103 (1986). Before liability for negligence can be imposed, the defendant must first owe a legal duty to the plaintiff, and the defendant’s breach of that duty must proximately result in injury. Davis v. Westwood Group, 420 Mass. 739, 742743 (1995). The duty owed by a landowner to someone lawfully on the owner’s premises is one of reasonable care under the circumstances. Sullivan v. Town of Brookline, 416 Mass. 825, 827 (1994). The common law duty of reasonable care owed to all lawful visitors by a landowner includes an obligation to maintain the premises in a reasonably safe condition. Davis, 420 Mass. at 743. Whether a defendant owes a duty of care to a plaintiff is a question of law to be decided by the court. Davis, 420 Mass. at 743; Yakubowicz v. Paramount Pictures, 404 Mass. 624, 629 (1989).

In her affidavit, Lau alleges that after she served the Defendant with a Notice to Quit, Erickson filed a complaint on June 19, 2007 with the Plymouth Board of Health alleging problems with the kitchen ceiling, the bathroom faucet, the front doorbell, and the electrical system. Erickson further complained of a missing shelf in the refrigerator and liquid on the back stairs. Counterclaim p.33; Lau Aff. p.43. Susan Merrifield, an inspector with the Plymouth Board of Health, inspected the Premises on June 25, 2007. During that inspection, she noted a problem with a noisy bathroom faucet and the presence of cooking sauce on the back stairs. Merrifield Aff. p.11. She further found that the kitchen ceiling was weather-tight, but could not comment on whether refrigerator shelves were missing, as the status of the refrigerator shelves had not been noted in previous inspections. Merrifield Aff. p.11. Merrifield conducted a

follow-up inspection on July 20, 2007 and found that all conditions at the Premises, including the bathroom faucet and front doorbell, had been corrected. Merrifield Aff. p.12.

The Defendant failed to file any affidavits supporting her claim of negligence against the Plaintiff. Specifically, the Defendant has failed to set forth any specific allegation that the Plaintiff breached a duty owed to her. The Court therefore finds that there are no genuine issues of material fact in dispute with respect to this count of the Defendant’s Counterclaims and finds that the Plaintiff is entitled to summary judgment as a matter of law on this Count of the Defendant’s Counterclaims. Accordingly, the Plaintiff’s Motion for Summary Judgment is ALLOWED with respect to Count X of the Defendant’s Counterclaims.

COUNTERCLAIM XV[20] (sic)

(Security Deposit)

The Defendant in this counterclaim has alleged that she has requested information and an accounting of her security deposit, and that the Plaintiff did not timely respond to said request. She also alleges that the bank that holds the security deposit has refused to confirm the deposit or to produce any information related thereto. The Plaintiff has moved for summary judgment, arguing that she has complied with the requirements of the security deposit statute. The Defendant failed to set forth any additional pleadings including an affidavit in support of her claim. The Defendant also did not file a Motion for Summary Judgment.

In her Memorandum in Support of her Motion for Summary Judgment, the Plaintiff, Jean Lau as Trustee, asserts that she timely placed the Defendant’s security deposit in an interest-bearing escrow account with South Shore Savings Bank. Lau further asserts that Erickson was aware of the existence and location of the account, as she was present at the time the account was opened. Lau also states in her affidavit that she timely provided Erickson with a letter from South Shore Savings Bank, dated June 29, 2007, which accounted for Erickson’s security deposit. Lau Aff. p.48. Lau further asserts that she also provided Erickson with a check in the amount of $3.05, which represented the interest earned on the security deposit from the date the account was opened through June 29, 2007.[21] Lau Aff. p.48.

The Court finds that the Defendant did not submit an affidavit or other pleading in accordance with Mass.R.Civ.P. 56(e). The Court therefore finds that there are no genuine issues of material fact in dispute with respect to this Count of the Defendant’s Counterclaims and finds that the Plaintiff is entitled to summary judgment as a matter of law on this Count of the Defendant’s Counterclaims. Accordingly, the Plaintiff’s Motion for Summary Judgment is ALLOWED with respect to Count XIV of the Defendant’s Counterclaims.

COUNTERCLAIM XVI[22] (sic)

(Emotional Distress)

The Defendant alleges that she has suffered emotional distress as the result of harassment on the part of the Plaintiff coupled with adverse conditions at the Premises, which include problems with utilities, appliances and debris in the common area of the Building.

The Plaintiff has denied the allegations, arguing that the Defendant has failed to set forth, as a matter of law, whether her emotional distress claim is for either the negligent or intentional infliction of emotional distress. Further, Lau argues that any deterioration in the Defendant’s mental or physical condition commenced well before the inception of the tenancy, based upon an affidavit of the Defendant’s doctor submitted by the Defendant.[23] The Defendant failed to file any pleading or affidavit, other than the counterclaim, in support of any claim for emotional distress.

In order to support a claim of negligent infliction of emotional distress, a plaintiff must prove five elements: 1) negligence on the part of the defendant; 2) emotional distress suffered by the plaintiff; 3) causation; 4) physical harm to the plaintiff with objective symptomatology; and 5) that a reasonable person would have suffered emotional distress under the circumstances. Payton v. Abbott Laboratories, Inc., 386 Mass. 540, 557 (1982). Without proof of physical harm, either caused by the emotional distress or which caused the emotional distress, one may not recover for mere emotional distress negligently inflicted. Id. A party alleging intentional or reckless infliction of emotional distress need not prove physical harm related to the emotional distress. Agis v. Howard Johnson, 371 Mass. 140, 145 (1976). Instead, to prove intentional or reckless infliction of emotional distress, the plaintiff must show that the defendant engaged in extreme and outrageous conduct that he or she knew or should have known would cause emotional distress, and which caused emotional distress so severe that no reasonable man would be expected to endure it. Id. Conduct is extreme and outrageous when it is ‘beyond all possible bounds of decency and [is] utterly intolerable in a civilized community.’ Id.

Repeated incidents of harassment may constitute extreme and outrageous behavior when taken together, even if those incidents would not be extreme and outrageous when viewed individually. Boyle v. Wenk, 378 Mass. 592, 595 (1979). Further, conduct that would otherwise be reasonable may be extreme and outrageous when directed at a person known to be particularly fragile or susceptible to infliction of emotional distress. Id.

The Court finds that the Defendant failed to present any affidavits or pleadings with respect to physical harm related to the emotional distress she allegedly suffered as a result of the Plaintiff’s actions in this case. Accordingly, the Court finds that she has not sufficiently alleged a claim of negligent infliction of emotional distress. See Payton, 386 Mass. at 557. Further, the Defendant failed to present any affidavits or pleadings to indicate that Lau or anyone under her control engaged in extreme or outrageous conduct that caused Erickson severe emotional distress. The Court therefore finds that the Defendant has not sufficiently pleaded a claim of intentional infliction of emotional distress. See Agis, 371 Mass. at 145. The Court therefore finds that there are no genuine issues of material fact in dispute with respect to this Count of the Defendant’s Counterclaims and finds that the Plaintiff is entitled to summary judgment as a matter of law on this Count of the Defendant’s Counterclaims. Accordingly, the Plaintiff’s Motion for Summary Judgment is ALLOWED with respect to Count XV of the Defendant’s Counterclaims.

CROSS-MOTIONS FOR SUMMARY JUDGMENT ON THE REMAINING COUNTS OF

THE DEFENDANT’S COUNTERCLAIMS

COUNTERCLAIM I

(Breach of Contract)

The Defendant in her first counterclaim has alleged that the Plaintiff breached the Lease between the parties. The language contained in the Defendant’s actual counterclaim is, at best, unclear, and contains at least three separate theories of law which are also argued in other counterclaims (primarily Counterclaim VIII for breach of the covenant of quiet enjoyment, Counterclaim X for negligence, and Counterclaim XIII for breach of the implied warranty of habitability), all of which the Court has ruled upon elsewhere in this decision.[24] Both parties have moved for summary judgment on the breach of contract counterclaim.

To prevail on a breach of contract claim, the burden of proof is on the plaintiff (or, in this case, the Defendant, as it is her counterclaim). See Northrup v. Brigham, 63 Mass. App. Ct. 362, 367 (2005); Carter v. Transamerica Life Insurance Co., 2000 Mass. SUPER Lexis 269, *6-*10 (Middlesex Superior Court, 2000). The plaintiff must show that the defendant failed to perform under an express or implied agreement supported by consideration, resulting in damages to the plaintiff. See id. If the plaintiff alleges a breach of an oral contract, the plaintiff must show that both parties consented to or had a mutual meeting of the minds with respect to the alleged agreement; tangible consideration is not required. Canney v. New England Telephone and Telegraph, 353 Mass. 158, 164-65 (1967).

The Court has previously ruled that the Lease between the parties expired per its terms on May 31, 2007 and that the Plaintiff’s action in not renewing the Lease with the Defendant was lawful. Further, the Court has concurrently ruled in this memorandum on the Defendant’s counterclaims for breach of the covenant of quiet enjoyment, negligence, and breach of the implied warranty of habitability, all of which overlap with and are duplicative of the breach of contract counterclaim. As the Defendant’s essential claim for breach of contract is based upon the Plaintiff’s decision not to renew the Lease, which the Court has previously found lawful, the Court finds that there are no genuine issues of material fact in dispute with respect to this count of the Defendant’s Counterclaims, and finds that the Plaintiff is entitled to summary judgment as a matter of law on this Count of the Defendant’s Counterclaims. Accordingly, the Plaintiff’s Motion for Summary Judgment on Count I of the Defendant’s Counterclaims is ALLOWED and the Defendant’s Cross-Motion for Summary Judgment on Count I of the Defendant’s Counterclaims is DENIED.

COUNTERCLAIM V

(Discrimination-Rent Subsidy)

The Defendant has filed a Cross-Motion for Summary Judgment on this counterclaim, in which she alleges that the Plaintiff has either failed to accept rent subsidies or has otherwise interfered with the administration of the rent subsidy awarded to the Defendant. The Plaintiff in her Motion for Summary Judgment has denied the allegations and argues that she has always accepted the rental subsidy payments made on behalf of the Defendant by the Cambridge

Housing Authority throughout the Defendant’s tenancy. She further denies that she has ever interfered with the administration of Erickson’s rent subsidy.

M.G.L. c. 151B, s.4(10) provides: ‘It shall be an unlawful practice:…For any person furnishing credit, services, or rental accommodations to discriminate against any individual who is a recipient of federal, state, or local public assistance, including medical assistance, or who is a tenant receiving federal, state, or local housing subsidies, including rental assistance or rental supplements, because the individual is such a recipient, or because of any requirement of such public assistance, rental assistance, or housing subsidy program.’ M.G.L. c. 151B, s.4(10). In order to establish a prima facie case of discrimination based upon participation in a rent subsidy program, the complainant must show: 1) that he or she was the recipient of government assistance; 2) that he or she sought an apartment within the rental limits allowed by his or her particular rental subsidy program; 3) that he or she was denied the opportunity to rent a particular apartment; and 4) that the apartment remained available for rent to others. Rix v. Vachon, Inc., 10 M.D.L.R. 1431 (Mass. Comm. Against Discrimination October 17, 1988). Once the complainant has established his or her prima facie case, the burden shifts to the respondent to rebut the prima facie case by showing that he or she had a legitimate, non-discriminatory reason for refusing to rent to the complainant, coupled with credible evidence that the reason given was, in fact, the real reason for the respondent’s action. Id.; see McDonnell Douglas Corp., v. Green, 411 U.S. 792, 802 (1973); Wheelock College v. Mass. Comm. Against Discrimination, 371 Mass. 130, 138 (1976). If the respondent rebuts the complainant’s prima facie case by putting forth a legitimate, non-discriminatory reason for his or her actions, the complainant then has the burden of showing that the reason given by the respondent is pretextual. Id.

The Defendant is a holder of a so-called Section 8 Voucher issued by the City of Cambridge Housing Authority (‘CHA’). Defendant/Tenant’s Verified Motion for Summary Judgment and attached Erickson Aff., p.2; Lau Aff. p.17; Johnston Aff. p.3. Michael Johnston, the Director of Leasing and Occupancy for the Cambridge Housing Authority, sets forth in his Affidavit that Lau has accepted the subsidy payment from the Cambridge Housing Authority throughout the Defendant’s tenancy. Johnston Aff. p.11. He further states that Lau has not interfered with the administration of the vouchers from the Cambridge Housing Authority. Johnston Aff. p.11. Johnston further notes in his affidavit that the Defendant’s voucher is still valid for the payment of rent at another apartment once she vacates the Premises. Johnston Aff. p.18.

The Defendant has shown that she is a recipient of a rental subsidy and that she sought to lease an apartment within the limits of her voucher. However, the Defendant failed to show that she was denied an opportunity to rent an apartment and, further, that the apartment remained available for rent after she was denied said opportunity. The Plaintiff has shown that she offered the Premises to the Defendant, that the Defendant resided there for a period of a year, with the assistance of a rental subsidy, and that, at the expiration of the Lease term, the Plaintiff elected not to renew the Lease between the parties so that her husband could use the Premises for both business and personal reasons. The Plaintiff has also shown

that the Premises has not been rented or leased to another party or parties. Lau Aff. p.13. The Court therefore finds that there are no genuine issues of material fact in dispute with respect to this count of the Defendant’s Counterclaims, and finds that the Plaintiff is entitled to summary judgment as a matter of law on this Count of the Defendant’s Counterclaims. Accordingly, the Plaintiff’s Motion for Summary Judgment on Count V of the Defendant’s Counterclaims is ALLOWED and the Defendant’s Cross-Motion for Summary Judgment on Count V of the Defendant’s Counterclaims is DENIED.

COUNTERCLAIM VII

(Discrimination-Reasonable Accommodation)

The Defendant has alleged that the Plaintiff has discriminated against her by refusing to allow Erickson to have a service dog for her disability.[25] The Plaintiff has denied the allegations and argues that she altered the Lease to permit the Defendant to have a cat as a service animal. Lau further alleges that Erickson never requested a service animal of any type in relation to an alleged disability. Finally, the Plaintiff argues that there is no evidence that the Plaintiff’s decision to not renew the lease was related to the Defendant’s alleged request for a service animal. Both parties filed Motions for Summary Judgment on this counterclaim.

The Fair Housing Act, 42 U.S.C. s.3601 (2006), and M.G.L. c. 151B (2000) prohibit discrimination in housing based on handicap.[26] The term ‘handicap’ is defined as ‘(1) a physical or mental impairment which substantially limits one or more of [a] person’s major life activities, (2) a record of having such an impairment, or (3) being regarded as having such an impairment.’ 42 U.S.C. s.3602(h); M.G.L. c. 151B, s.1(17). Discrimination prohibited by both statutes includes the ‘refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a handicapped] person equal opportunity to use and enjoy a dwelling.’ 42 U.S.C. s.3604(f)(3)(B); M.G.L. c. 151B, s.4(7A)(2).

A ‘reasonable accommodation’ is one which would not impose an undue hardship or burden on the entity making the accommodation. Andover Housing Authority v. Izrah and Shkolnik, 443 Mass. 300, 307 (2005), citingáPeabody Props., Inc. v. Sherman, 418 Mass. 503, 608 (1994). ‘The mandate for reasonable, but not onerous, accommodations strikes æa balance between the statutory rights of the handicapped…and the legitimate interests of federal grantees in preserving the integrity of their programs.’ Andover Housing Authority, 443 Mass. at 307, quoting City Wide Assocs. v. Penfield, 409 Mass. 140, 142 (1991). A tenant who has alleged discrimination based on a landlord’s failure to reasonably accommodate a handicap has the burden of proving: 1) a prima facie case of discrimination; 2) a request for a reasonable accommodation was made; and 3) that the proposed accommodation was reasonable. Groner v. Golden Gate Apartments, 250 F.3d 1039, 1044-1045 (6th Cir. 2001); Andover Housing Authority, 443 Mass. at 307-308; Shedlock v. Dept. of Correction, 442 Mass. 844, 858 (2004) (finding that the Department of Corrections could not be held liable for failing to accommodate a prisoner’s request for a new cell until the prisoner’s request was properly submitted with medical documentation of the need for a new cell); Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 457 (2002)

(finding in the employment context that the employee must initiate the process of reasonable accommodation by first requesting an accommodation).

The parties entered into a Lease and Defendant is a holder of a Section 8 voucher-based rent subsidy issued by the City of Cambridge Housing Authority (‘CHA’). Lau Aff. p.p.16-17; Johnston Aff. p.3. According to the Plaintiff’s Affidavit, the Defendant requested permission to have one cat in the unit. The Plaintiff agreed to same and incorporated that into the Lease agreement submitted to the Defendant for signature. Lau Aff. p.16. In her affidavit, the Plaintiff states that the Defendant unilaterally amended the submitted Lease to change the word ‘cat’ to read ‘cats’. Lau Aff. p.16.

The Plaintiff states in her affidavit that the only time that the Defendant requested to have a dog in the Premises was on June 16, 2006 and, further, that the Defendant did not specify that the dog was a service animal. Lau Aff. p.22. The Plaintiff denied the Defendant’s request for a dog.

In Erickson’s Affidavit accompanying her Cross-Motion for Summary Judgment, Erickson states that Lau had changed the Lease to give Erickson permission to have multiple cats at the Premises. Erickson Aff. p.5. Erickson further asserts that, in addition to the cats already residing at the Premises, she requested permission to have a service dog as a reasonable accommodation. Erickson Aff. p.10. With her affidavit, Erickson included a letter dated September 28, 2006 and addressed to Lau and Lau’s attorney, in which Erickson asks permission to retain her cats. Erickson also attached to her affidavit a ten-year old letter dated October 20, 1995 from a Doctor Randolph Catlin, which states: ‘Ms. Heidi K. Erickson is currently disabled and an animal is considered an essential part of her treatment. Whatever accommodations can be made to allow her to continue using this resource would be very much appreciated and will make continued treatment possible.’ Attachments, Catlin Letter, Erickson Aff. The Court notes that, although Erickson claims in her affidavit that she formally requested the use of a service dog as a reasonable accommodation, it does not appear that any such request was made in her letter of September 28, 2006 to the Plaintiff, nor is there any indication that the October 20, 1995 Catlin letter was included with the Defendant’s September 28, 2006 letter to the Plaintiff.

The Court finds that a genuine issue of material fact exists as to whether the Defendant sought permission from the Plaintiff to have a dog as a reasonable accommodation. However, the Court further finds that the Defendant’s request for a dog did not constitute a reasonable accommodation for dyslexia.[27] ‘The determination of whether a requested accommodation is reasonable is fact-specific and will be resolved on a case-by-case basis.’ Boston Housing Authority v. Bridgewaters, 69 Mass.App.Ct. 757, 763 (2007), quoting Andover Housing Authority v. Shkolnik, 443 Mass. 300, 307 (2005). The Defendant has failed to present any evidence in her voluminous pleadings to indicate that a service dog is able to alleviate the effects of dyslexia[28], nor did she show that, due to her dyslexia, a service dog is necessary to permit her the full use and enjoyment of the Premises. Therefore, the Court finds that a service dog is not a reasonable accommodation for the Defendant’s disability.

The Court therefore finds that there are no genuine issues of

material fact in dispute with respect to this count of the Defendant’s Counterclaims, and finds that the Plaintiff is entitled to summary judgment as a matter of law on this Count of the Defendant’s Counterclaims. Accordingly, the Plaintiff’s Motion for Summary Judgment on Count VII of the Defendant’s Counterclaims is ALLOWED and the Defendant’s Cross-Motion for Summary Judgment on Count VII of the Defendant’s Counterclaims is DENIED.

COUNTERCLAIMS VIII and XIII

(Breach of Quiet Enjoyment-Unsafe Conditions)

(Breach of the Implied Warranty of Habitability)

The Defendant in these two counterclaims has alleged that the Plaintiff breached the covenant of quiet enjoyment and the implied warranty of habitability by permitting certain adverse conditions to persist at the Premises. As the facts and alleged damages behind the Defendant’s allegations are identical, the Court will rule on these counterclaims together in the interest of judicial efficiency. While both parties have moved for summary judgment on the quiet enjoyment counterclaim, only the Plaintiff has moved for summary judgment on the breach of the implied warranty of habitability counterclaim.

The Defendant in her quiet enjoyment counterclaim, Counterclaim VIII, alleges that there were broken shelves in her refrigerator, cracks in the kitchen ceiling, and exposed garbage, flies, blood and hazardous waste in the common areas. The Defendant further alleges in this counterclaim that the Plaintiff attempted to use a toxic insect repellent which would pose a danger to Erickson’s service animals.[29] Similarly, in Counterclaim XIII, the Defendant repeats the same allegations as they relate to the implied warranty of habitability.

M.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…’ A landlord violates M.G.L. c. 186, s.14 where he had notice, or reason to know of the serious condition in the tenant’s apartment, and failed to take appropriate corrective measures. Al Ziab v. Mourgis, 424 Mass. 847, 850-851 (1997); Cruz Management Co., Inc. v. Thomas, 417 Mass. 782 (1994). Not every breach of the implied warranty of habitability constitutes a violation of M.G.L. c. 186, s.14. While the statute does not require that the landlord’s conduct be intentional, Simon v. Solomon, 385 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. 273, 284-285 (1994); Lowery v. Robinson, 13 Mass.App.Ct. 982 (1982).

The implied warranty of habitability is the landlord’s promise that the premises will meet certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the tenant is in material violation of the minimum standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). A landlord must have actual or constructive notice

of the condition creating the violation. McKenna v. Begin, 3 Mass.App.Ct. 168 (1975). Damages are assessed from the date the landlord had notice of the condition of disrepair. Berman & Sons v. Jefferson, 379 Mass. 196 (1979). The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises as warranted and the fair rental value of the premises with the defects. McKenna v. Begin, supra at 172.

This Court has previously ruled on portions of the Defendant’s quiet enjoyment and warranty of habitability allegations in the civil action between the parties, Erickson I. As noted in the Judgment in that case, the Court found that Lau had breached the implied warranty of habitability for the period July 17, 2006 through September 18, 2006 as to a kitchen ceiling, two interior doors, two exterior lights, a medicine cabinet and the washer and dryer. The Court further noted that the parties had represented to the Court that all repairs had been completed as of September 18, 2006. See Erickson I. The Court, as previously described, then awarded the Defendant damages in the amount of $329.00 plus costs of $290.32 (which were to be paid directly to the Court). See Lau Aff., Exhibit M.

Further, as set forth in Paragraph 35 and Exhibit O of the Lau Affidavit, Lau received correspondence from the Defendant on or about November 12, 2006, which indicated that the Defendant intended to file a motion with the Court to amend the Judgment of October 27, 2006 to incorporate additional alleged violations of the State Sanitary Code. In response, Lau asserts that the parties negotiated and entered into a Settlement Agreement dated November 25, 2006 in which Lau paid Erickson an additional $181.45 in settlement of all disputes as set forth in the Defendant’ s letter to Lau. Lau Aff. p.36, Exhibit P. The Defendant’s correspondence and draft Verified Motion to Amend/Alter Judgment[30] are set forth as Exhibit O to the Lau Affidavit.

The doctrine of claim preclusion, or res judicata, ‘makes a valid, final judgment conclusive on the parties and their privies, and bars further litigation of all matters that were or should have been litigated in the [earlier] action.’ Jarosz v. Palmer, 436 Mass. 526, 530-31 n.3 (2002); Heacock v. Heacock, 402 Mass. 21, 23 n.2 (1988). There are three essential elements to the doctrine of claim preclusion: ‘(1) the identity or privity of the parties to the present and prior actions; (2) the identity of the cause of action; and (3) a prior final judgment on the merits.’ Blanchette v. School Committee of Westwood, 427 Mass. 176, 179 n.3 (1998). Claim preclusion will apply to bar litigation of an issue that could have been litigated in a previous action, provided the two claims arise from the same act or transaction. Charlette v. Charlette Bros. Foundry, Inc., 59 Mass.App.Ct. 34, 44 (2003); TLT Construction Corp. v. A. Anthony Tappe & Associates, 48 Mass.App.Ct. 1, 8 (1999). The party alleging claim preclusion has the burden of proof on each element of the doctrine. Watson v. Berman, 302 Mass. 305, 307 (1939).

The Court finds that res judicata applies to bar those portions of the Defendant’s claims for breach of the covenant of quiet enjoyment and the warranty of habitability that arose prior to October 27, 2006, the date of judgment in Erickson I. The Court finds that Erickson had ample opportunity during the pendency of Erickson I to advance a claim for breach of the covenant of quiet

enjoyment for alleged adverse conditions at the Premises, and failed to do so. Erickson did, in fact, advance a claim for breach of the implied warranty of habitability for the adverse conditions at the Premises and cannot now advance that same claim for the same conditions upon which she already recovered.

As to alleged conditions at the Premises that arose after October 27, 2006, the Plaintiff alleges that no genuine issue of material fact exists as to the conditions at the Premises. In the Affidavit of Plymouth Housing Inspector Mark Elsner filed with the Plaintiffs’s Motion for Summary Judgment, Elsner specifically states that, following an inspection on July 30, 2007, at which the Defendant was present, ‘There were no outstanding electrical issues at the premises.’ Elsner Aff., p.16. See also p.7, 9, 11, 12, 13, [14] (confirming that all electrical outlets, switches and metering complied with the appropriate State Electrical Code).

The Defendant filed a pleading and an affidavit in support of her motion for summary judgment on her quiet enjoyment counterclaim (Counterclaim VIII) but failed to file a pleading or affidavit in support of her claim for breach of the implied warranty of habitability (Counterclaim XIII). The Court finds that the Defendant, in her memorandum in support of her motion for summary judgment on the quiet enjoyment counterclaim, essentially repeats the allegations contained in both counterclaims and no statement relates to events after October 27, 2006 that could arguably support her claims for breach of the covenant of quiet enjoyment or breach of the implied warranty of habitability.

Accordingly, the Court finds that the Plaintiff in her Motion for Summary Judgment has met her burden as to both Counterclaim VIII (breach of the covenant of quiet enjoyment) and Counterclaim XIII (breach of the implied warranty of habitability). The Defendant’s claims for conditions in the Premises that arose prior to October 27, 2006 are barred by res judicata. Further, the Defendant failed to show through pleadings and affidavits that a genuine issue of material fact exists as to the presence of any adverse conditions after October 27, 2006. The Court therefore finds that there are no genuine issues of material fact in dispute with respect to these counts of the Defendant’s Counterclaims, and finds that the Plaintiff is entitled to summary judgment as a matter of law on these counts of the Defendant’s Counterclaims. Accordingly, the Plaintiff’s Motion for Summary Judgment on Count VIII and Count XIII of the Defendant’s Counterclaims is ALLOWED and the Defendant’s Cross-Motion for Summary Judgment on Count VIII and Count XIII of the Defendant’s Counterclaims is DENIED.

COUNTERCLAIM XII

(Retaliation)

The Defendant in this counterclaim has alleged that the Plaintiff retaliated against her in violation of M.G.L. c. 186, s.18 and M.G.L. c. 239, s.2A because the Defendant reported adverse conditions in the Premises and filed complaints regarding those conditions. Specifically, Erickson states that between July 2, 2006 and October 27, 2006, she filed various complaints of State Sanitary Code violations in her Premises with both the Town of Plymouth Board of Health and the Court (‘Erickson I’). Erickson further argues that the Plaintiff’s failure to renew the Lease between the parties constituted retaliation against her in violation of the above

statutes. She has moved for summary judgment on the counterclaim.

The Plaintiff has also moved for summary judgment, arguing that her actions were not in retaliation against the Defendant. She argues that under the terms of the Lease, she was required to give the Defendant timely notice of her intention not to renew the Lease, and further, she states that she had earlier advised the Defendant that this would only be a one year lease. She also argues that she would not have renewed the Lease in any event, notwithstanding the Defendant’s exercise of her rights.

M.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 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.’ ‘Clear and convincing’evidence means evidence 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).á

Similarly, M.G.L. c. 186, s.18 sets forth in pertinent part a right of action for a tenant as to retaliation by a landlord: ‘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 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 tenants engaging in, or the belief that tenants had engaged in, activities protected under this section.’ M.G.L. c. 186, s.18.

In her counterclaim, Erickson alleges that Lau is retaliating against her for her various complaints to the Plymouth Board of Health or the Southeast Housing Court regarding the alleged adverse conditions at the Premises.

The Court has found in this Decision that the Plaintiff was required to give the Defendant at least thirty days’ notice of non-renewal of the Lease. Therefore, if Lau did not wish to renew the Lease, she was required to notify Erickson on or before May 1, 2007, notwithstanding that Erickson may have filed complaints against her with either a municipal authority or a court of law. The Court finds that the Plaintiff strictly followed the requirements of the Lease in notifying Erickson that the Lease would not be renewed at the end of the term. Further, Lau states in her affidavit that she informed Erickson prior to the inception of the tenancy that the Lease would only be in effect for one year, as Lau intended to use the Premises for business and personal use after that time. Lau Aff. p.13. Therefore, the Court finds, as a matter of law, that the Plaintiff has rebutted the presumption of retaliation by showing with clear and convincing evidence that she 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 the Defendant’s engaging in statutorily protected activity, in that the Court has previously found that the Plaintiff timely advised the Defendant that the Lease would not be renewed. See M.G.L. c. 186, s.18; M.G.L. c. 239, s.2A.

The Court therefore finds that there are no genuine issues of material fact in dispute with respect to this count of the Defendant’s Counterclaims, and finds that the Plaintiff is entitled to summary judgment as a matter of law on this Count of the Defendant’s Counterclaims. Accordingly, the Plaintiff’s Motion for Summary Judgment on Count XII of the Defendant’s Counterclaims is ALLOWED and the Defendant’s Cross-Motion for Summary Judgment on Count XII of the Defendant’s Counterclaims is DENIED.

COUNTERCLAIM XI

(Unfair and Deceptive Acts of Practices)

In this counterclaim, the Defendant asserts that the Plaintiff is subject to M.G.L. c. 93A in that Lau is engaged in the trade or business of leasing properties, as she rents the Premises to the Defendant and, further, rents additional properties to other individuals or businesses. The Defendant further alleges that the Plaintiff engaged in unfair and deceptive practices in violation of

M.G.L. c. 93A and the Attorney General’s Regulations promulgated thereunder by: 1) initiating the present summary process action; 2) discriminating against the Defendant in violation of M.G.L. c. 151B, s.4 p.10; 3) discriminating against the Defendant by failing to grant her a reasonable accommodation; 4) fraudulently inducing the Defendant to renting the Premises; 5) enjoying unjust enrichment at the expense of the Defendant; 6) taking reprisals against the Defendant; 7) retaliating against the Defendant; 8) intimidating the Defendant; 9) breaching the lease between the parties; and 10) retaliating against a whistle blower. Defendant’s Counterclaim XI,p. 42. The Plaintiff denies each and every allegation made by the Defendant.[31]

The Plaintiff now moves for Summary Judgment on the Defendant’s counterclaim. The Plaintiff argues in her Summary Judgment motion that the Defendant ‘…must prove that Lau’s conduct was such as to fall æwithin at least the penumbra of some common-law, statutory, or other established concept of unfairness…” Plaintiff’s Memorandum of Law in Support of Her Motion for Summary Judgment, quoting PMP Assoc., Inc. v. Globe Newspaper Co., 366 Mass. 593, 596 (1975). The Defendant failed to file either a Summary Judgment motion or a timely opposition to the Plaintiff’s motion.

M.G.L. c. 93A, s.2(a) states that ‘Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.’ Further, under M.G.L. c. 93A, s.9(1), ‘Any person… who has been injured by another person’s use or employment of any method, act or practice declared to be unlawful by section two… may bring an action in the superior court, or in the housing court….’.

In M.G.L. c. 93A cases, if the court finds for the petitioner, ‘recovery shall be in the amount of actual damages or twenty-five dollars, whichever is greater; or up to three but no less than two times such amount if the court finds that the use or employment of the act or practice was a willful or knowing violation of said section two or that the refusal to grant relief upon demand was made in bad faith with knowledge or reason to know that the act or practice complained of violated section two.’ M.G.L. c. 93A, s.9(3).

Under M.G.L. c. 93A, s.(2)(c) ‘The attorney general may make rules and regulations interpreting the provisions of subsection 2(a) of this chapter…’ Pursuant to the Attorney General’s Consumer Protection Regulations codified at 940 C.M.R. 3.17(1), ‘It shall be an unfair or deceptive act or practice for an owner to…(b) Fail, during the terms of the tenancy, after notice is provided in accordance with M.G.L. c. 111, s.127L, to (1) remedy a violation of law in a dwelling unit which may endanger or materially impair the health, safety, or well-being of the occupant, or (2) maintain the dwelling unit in a condition fit for human habitation; provided, however, that said violation of law was not caused by the occupant or others lawfully upon said dwelling unit;…(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;…[or] (I) 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.’ Further, pursuant to the Attorney General’s Consumer Protection Regulations codified at 940 C.M.R. 3.17(6), ‘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;…[or] (f) to violate willfully any provisions of M.G.L. c. 186, s.14…’.

The Court has found throughout this Decision that the Plaintiff is entitled to summary judgment as a matter of law with respect to each of the other counts of the Defendant’s Counterclaims. The Defendant failed to present any opposition to the Plaintiff’s motion for summary judgment on Count XI of her Counterclaim. Mass.R.Civ.P. 56(e) provides, in pertinent part: ‘When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.’ The Court therefore finds that there are no genuine issues of material fact in dispute with respect to this count of the Defendant’s Counterclaims, and finds that the Plaintiff is entitled to summary judgment as a matter of law on this Count of the Defendant’s Counterclaims. Accordingly, the Plaintiff’s Motion for Summary Judgment is ALLOWED with respect to Count XI of the Defendant’s Counterclaims.

ORDER FOR JUDGMENT

For the above-stated reasons, it is ORDERED that:

1. Plaintiff’s Motion for Summary Judgment for Possession is ALLOWED. Defendant’s Cross-Motion for Summary Judgment for Possession is DENIED. Possession is awarded to the Plaintiff, plus costs. Execution shall issue ten (10) days from the date judgment enters.

2. Plaintiff’s Motion for Summary Judgment on each Count of the Defendant’s Counterclaims is ALLOWED.

3. The Defendant’s Cross-Motion for Summary Judgment on Count I, Count V, Count VII, Count VIII, and Count XIII of her Counterclaims is DENIED.

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[1] The Court notes that the Defendant submitted a voluminous set of pleadings, many of which were duplicative, irrelevant and frivolous in violation of Mass.R.Civ.P. 8(e)(1), which provides: ‘Each averment of a pleading shall be simple, concise, and direct.’ See Wilson v. Commonwealth, 31 Mass. App. Ct. 757, 758 n.2 (1992), rev’d on other grounds, 413 Mass. 352 (1992). The Court had previously admonished the Defendant as to the filing of frivolous pleadings. See Court’s Allowance of Plaintiff’s Motion for Sanctions. Although the Defendant’s pleadings were internally inconsistent and confusing, the Court shall construe her pleadings as to do substantial justice in accordance with Mass.R.Civ.P. 8(f). See Tetrault v. Mahoney, et al, 425 Mass. 456, 463 (1997); Wilson, 31 Mass.App.Ct. at 758, n.2.

[2] The Plaintiff filed a Motion to Strike both the Defendant’s Opposition to the Plaintiff’s Motion for Summary Judgment and the Defendant’s Cross-Motion for Summary Judgment, in which she states that the Defendant only e-mailed a copy of said motions to Plaintiff’s counsel. She argues that e-mail is insufficient service pursuant to Mass.R.Civ.P. 5(b). Mass.R.Civ.P. 5(b) provides, in pertinent part: ‘…service upon the attorney…shall be made by delivering a copy to him or by mailing it to him at his last known address…Delivery of a copy under this rule means: handing it to the attorney or to the party; or leaving it at his office with his clerk…Service by mail is complete upon mailing.’ The Court agrees with the Plaintiff and finds that the Defendant’s Opposition to the Plaintiff’s Motion for Summary Judgment did not comply with the service requirements of Mass.R.Civ.P. 5(b), and accordingly ALLOWS the Plaintiff’s Motion to Strike with regard to the Defendant’s Opposition to the Plaintiff’s Motion for Summary Judgment. The Court DENIES the Plaintiff’s Motion to Strike as to the Defendant’s Cross-Motion for Summary Judgment, as the Court finds that the defects in the exhibits filed with the Defendant’s Cross-Motion for Summary Judgment are relatively minor and the Plaintiff suffers no prejudice by the denial of her motion.

[3] The Preliminary Injunction of July 25, 2006 was subsequently dissolved on October 27, 2006.

[4] In paragraph 28 of her Affidavit, Lau refers to an Affidavit of a Peter Paul Karpowicz (the ‘Karpowicz Affidavit’) filed in #06-CV-01103, Heidi Erickson v. Jean Lau, Trustee, alleging that the Plaintiff’s husband was in the Defendant’s apartment on June 4, 2006. Since the Karpowicz Affidavit was never signed by the affiant, as required by M.R.Civ.P. 56(e), the Court finds that this Affidavit is defective, and hereby strikes the Karpowicz Affidavit sua sponte. See O’Brion, Russell & Co. v. LeMay, 370 Mass. 243, 245 (1976); Smith & Zobel, Mass. Practice Vol. 7, s.56.6 at 282 (2nd ed. 2007).

[5] Mass.R.Civ.P. 56(e) provides, in pertinent part: ‘When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.’

[6] In light of this ruling, the Court does not reach the issue of res judicata with respect to Count II of the Defendant’s Counterclaim.

[7] In her letter of July 26, 2006, the Defendant states: ‘The bathroom’s faucets are old and difficult for me to turn partly due to the onset of arthritis and the new faucet is of the highest quality – I don’t look for reimbursement unless you don’t install it. I agree, as I always have, to leave the installed purchases including the bathroom faucet in the apartment upon my departure…To recapitulate the issue of the items I purchased for corrections to the violations of the State Sanitary Code as mentioned in its July

13th, 2006 orders and my June 10th, 2006 letter: kitchen sink I have provided you (with new faucets) for installation (as you have seen) in my kitchen ready to be installed at your convenience and that this sink once installed is yours upon my departure. In addition the kitchen countertop (butcher block cut to fit), bathroom wall cabinet (new), bathroom door (cut to fit) and the two new French doors all these are yours to keep in the apartment upon my departure. I will not take with me upon my departure from the apartment even if you attempt to seek possession through a court action for eviction (Summary Process).’ Lau Aff. Exhibit K (emphasis added).

[8] #03-CV-01103, Heidi K. Erickson v. Jean Lau, Trustee of the Lau Family Trust (‘Erickson I’).

[9] At the July 25, 2006 hearing in Erickson I, the following exchange took place between the Court (Edwards J.), and the Defendant: ‘J: It’s your testimony that Ms. Lau had authorized you to buy a certain amount of paint. She-and you-re-she would reimburse you for that. Erickson: Yes. J: OK. Erickson: Not the labor. The supplies, like the drop cloths and brushes- J: OK.’ Plaintiff’s Memorandum of Law citing certified transcript.

[10] In light of this ruling, the Court does not reach the issue of res judicata with respect to Count III of the Defendant’s Counterclaim.

[11] The Court awarded damages for violations of the State Sanitary Code, including a chipped kitchen sink, stained kitchen ceiling, two broken interior doors, two exterior lights, a medicine cabinet, and the washer and dryer. Erickson I, Order for Judgment page 5.

[12] The Settlement Agreement, Lau Aff. Exhibit P, states as follows: ‘Upon execution of this Agreement, Lau [the Plaintiff in this action] shall tender $181.45 to Erickson. Both parties agree that all disputes as of this date regarding those mentioned in Erickson’s filing Motion to Amend/Alter Judgment, supplies for painting and proposed gas charges overages occurring from the inception of the tenancy until the stove was replaced are hereby resolved. Lau further agrees that Erickson is as of this date not in arrears on her rent.’

[13] In light of this ruling, the Court does not reach the issue of res judicata with respect to Count IV of the Defendant’s Counterclaims.

[14] Mass.R.Civ.P. 56(e) provides, in pertinent part: ‘When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.’

[15] Lau, in her Motion for Summary Judgment, further states

that the Defendant appears to refer to one Sean McAfee, a delivery person for the Happy Gardens restaurant, as the alleged employee who insulted the Defendant. Lau states that McAfee is neither an employee nor an agent of the Plaintiff. Lau Aff. p.10.

[16] The Court notes that the Defendant labeled this as Counterclaim VIII, although it appears from the pleadings that it is actually Counterclaim IX. The Court will refer to this Counterclaim as Counterclaim IX in the remainder of this decision.

[17] Paragraphs 28 and 29 of the Defendant’s complaint provide: ‘The Landlord had a duty owed to Tenant and failed to prevent its employees including but not limited to Shawn McAfee from harassing Your Tenant and engaging in numerous acts of repeated threats, interruptions during the pm/sleeping hours, stalking her, chasing her, throwing a rock breaking apt window, name calling, libel, slander and assault, completely preventing Tenant’s everyday quiet enjoyment for most of her tenancy and/or after her seeking her rights…The Landlord knew or should have known of the conduct of its employees and or itself especially employee Shawn McAfee a nuisance and that this ’employee’s’ conduct would create disturbances in Your Tenant’s peace, raising to the level of diminished used of the premises. Landlords actions condoned threats, damages to Tenants apt & enjoyment of same.’

[18] Lau admits in her affidavit that McAfee is an employee of the Happy Garden Restaurant.

[19] The Defendant has included in this counterclaim allegations of threats and harassment, which have been resolved in other portions of this Decision.

[20] The Court notes that, although Erickson titled this Counterclaim XV, it is the fourteenth chronological counterclaim. The Court will refer to this Counterclaim as Counterclaim XIV in the remainder of this decision .

[21] Lau recounts an incident at a Sovereign Bank branch, another local bank in Plymouth, on June 16, 2006. Lau states in her affidavit that she and Erickson went to the Sovereign Bank to open Erickson’s security deposit escrow account but Erickson refused to provide her social security number to Sovereign Bank employees at that time. Lau further states that Erickson caused a disturbance at the Sovereign Bank and that the Plymouth Police were called as a result. Lau Aff p.21, Exhibit E.

[22] The Court notes that, although Erickson titled this Counterclaim XVI, it is actually her fifteenth chronological counterclaim. The Court will refer to this Counterclaim as Count XV in the remainder of this decision.

[23] The Defendant, in her previously filed 2nd Rebuttal to Plaintiff (Landlord’s) Opposition to Tenant’s Motion to Dismiss and to Strike, submitted two affidavits of Dr. Richard Fraser. In the first affidavit, dated July 18, 2006, Dr. Fraser states ‘In 2003, Ms. Erickson suffered extreme personal problems brought on by multiple

home invasions…as time marshes [sic] on her underlying disabilities have suffered and her physical condition has deteriorated causing her to become increasingly symptomatic, agitated, anxious and increases her likelihood of seizures and has caused her to experience symptoms reflective of Post Traumatic Stress Syndrome. In addition Ms. Erickson now suffers from underlying psychological problems associated with the fear of home invasions and experiences panic attacks during the day and at night.’ 2006 Fraser Aff. p.3. In the second affidavit, dated February 22, 2007, Dr. Fraser attributes Erickson’s mental deterioration to an ongoing legal dispute. ‘I believe that Ms. Erickson’s physical and mental deterioration is directly related to the long duration of the [2003] criminal prosecution, the lack of resolution to the cases, the stigma she faces as a result of being accused, loss of friendship, status in society, and the loss of her æcat family’ in 2004.’ 2007 Fraser Aff. p.4.

[24] The Defendant’s Breach of Contract counterclaim, paragraphs 2 and 4, is as follows: ‘The Tenant and Landlord agreed to enter into a contract for tenancy, where the terms of said contract the Landlord promised to provide and has not breached the agreement the Tenant relied upon is against her rights.’ Further, as set out in paragraph 4: ‘The Landlord’s breach has caused Tenant grief, emotional upset, and interferences in her quiet enjoyment of the apartment’. Defendant’s Counterclaim, p.p.2 and 4.

[25] Paragraph 22 of the Defendant’s Answer, Counterclaims, and Demand for Jury Trial provides: ‘The Landlord has failed to reasonably accommodate Tenant’s disability by alteration of the lease to include a service dog for Tenant’s disability and by this denial has discriminated in violation of the Massachusetts anti-discrimination laws, consumer protection laws, as well as made the Tenant suffer physically and emotionally.’

[26] The Fair Housing Act, 42 U.S.C. s.3604(f)(2), provides: ‘…[I]t shall be unlawful…[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of (A) that person; or (B) a person residing in or intending to reside in that dwelling after it is sold, rented, or made available…’. M.G.L. c. 151B, s.4(7) provides, in pertinent part: ‘It shall be an unlawful practice…for the owner…or other person having the right of ownership or possession or right to rent or lease or sell…(a) to refuse to rent or lease…or otherwise to deny or withhold from any person or group of persons such accommodations or land because of…blindness, hearing impairment, or because such person possesses a trained dog guide as a consequence of blindness or hearing impairment, or other handicap of such person or persons; (b) to discriminate against any person because of…blindness, or hearing impairment or other handicap, or because such person possesses a trained dog guide as a consequence of blindness or hearing impairment in the terms, conditions or privileges of such accommodations or land or the acquisition thereof, or in the furnishing of facilities or services in the connection therewith…’.

[27] The Court has carefully reviewed the Defendant’s Answer and Counterclaims, along with other relevant pleadings and her representations in Court, in conjunction with the Plaintiff’s affidavit, and finds that the Defendant neither informed the Plaintiff of the nature of her disability nor did she attempt to explain in her written correspondence how a service dog would assist her in coping with her disability. She has represented in open Court that she has dyslexia. On page 1, paragraph 10 of her Counterclaim, she states that she is ‘…disabled requiring alteration and/or modification, a member of a protected class, requiring reasonable accommodations….’ but fails to set forth her specific disability.

[28] Dyslexia is defined as ‘A learning disorder marked by impairment of the ability to recognize and comprehend written words.’ The American Heritage College Dictionary (3rd Ed.) (1999).

[29] The Defendant has also incorporated in this counterclaim allegations of actions by employees which she also made in Counterclaim IX. The Court has ruled separately on those allegations.

[30] The Verified Motion to Amend/Alter Judgment appears to be a Motion to Reconsider Judgment and was not filed with the Court.

[31] The Court finds that the Plaintiff is, in fact, subject to M.G.L. c. 93A as she rents both residential and commercial units in the Building which houses the Premises.

End Of Decision

HOUSING COURT

Leisa Lorenzi v. Latisha Moses

SOUTHEASTERN DIVISION

Docket # 06-CV-01159

Parties: Leisa Lorenzi v. Latisha Moses

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: February 15, 2008

MEMORANDUM OF DECISION ON DAMAGES PURSUANT TO MASS.R.CIV.P. 55(b)(2)

The Plaintiff Leisa Lorenzi (“Lorenzi”) filed this civil action against her former landlord, the Defendant Latisha Moses (“Moses”), seeking return of her security deposit. In her Complaint, the Plaintiff seeks treble damages pursuant to M.G.L. c. 186, s.15B and M.G.L. c. 93A. Defendant Latisha Moses failed to appear or otherwise answer and she was accordingly defaulted.[1] The Plaintiff appeared with counsel at the initial Case Management Conference and at the hearing for Assessment of Damages.

Following the Entry of Default under Mass.R.Civ.P. 55(a) by the Clerk on January 25, 2007, the Court on September 11, 2007 took testimony and received a Statement of Damages from the Plaintiff for the purposes of entering a judgment amount pursuant to Mass.R.Civ.P. 55(b)(2). The Plaintiff indicated she paid a security deposit of $1,250.00 to the Defendant’s predecessor in title, one Miguel M. Vasquez, pursuant to a Residential Lease Agreement (the “Lease”). See Complaint, Exhibit 1, €2. For the reasons set forth below, the Court now awards damages of $1,250.00, trebled to $3,750.00 pursuant to M.G.L. c. 186, s.15B(6) and (7), plus court costs in the amount of $185.00. Counsel for the Plaintiff has represented to the Court that she does not seek attorney’s fees.

PLAINTIFF’S SECURITY DEPOSIT CLAIM PURSUANT TO M.G.L. c. 186, s.15B

The Plaintiff has alleged in her Complaint that she paid a security deposit of $1,250.00 to the Defendant’s predecessor in title, a Miguel M. Vasquez, none of which the Defendant, the current owner of the Building, has returned to the Plaintiff. The Plaintiff further states that she was a tenant of the Defendant at the Premises located at 46 Appleton Street, Apt. #2, in Brockton, MA. As the Defendant has been defaulted, the Court must construe all allegations in favor of the Plaintiff. See Rosa and Pinto v. Ross, Southeastern Housing Court Docket No. 02-CV-00642 (Dec. 20, 2005)(Edwards, J.)(defaulting the Defendant and awarding the Plaintiff damages for the Defendant’s failure to comply with M.G.L. c. 186, s.15B); Acarli v. Feinberg and Shapiro, Boston Housing Court Docket No. 98-CV-00955 (Nov. 4, 1998)(Winik, J.)(defaulting the Defendant and awarding the Plaintiff damages for the Defendant’s failure to comply with M.G.L. c. 186, s.15B).

description of the premises leased or rented. Said receipt shall be signed by the person receiving the security deposit.”.

M.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, interestbearing 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.”

M.G.L. c. 186, s.15B(5) provides, in pertinent part: “Whenever a lessor who receives a security deposit transfers his interest in the dwelling unit for which the security deposit is held, whether by sale, assignment, death, appointment of a receiver or trustee in bankruptcy, or otherwise, the lessor shall transfer such security deposit together with any interest which has accrued thereon for the benefit of the tenant who made such security deposit to his successor in interest, and said successor in interest shall be liable for the retention and return of said security deposit in accordance with the provisions of this section from the date upon which said transfer is made…In the event that the lessor fails to transfer said security deposit to his successor in interest as required by this subsection the successor in interest shall, without regard to the nature of the transfer, assume liability for payment of the security deposit to the tenant in accordance with the provisions of this section…”

M.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 “(a) fails to deposit such funds in an account as required by subsection (3);…(d) fails to transfer such security deposit to his successor in interest or to otherwise comply with the provisions of subsection (5) after he has succeeded to an interest in residential real property; 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 the termination of the tenancy.”

The Court finds that the Defendant violated each of the above provisions in the following ways. The Plaintiff alleges, and the Court finds, that the Defendant failed to provide the Plaintiff with a receipt for the security deposit, in violation of M.G.L. c. 186, s.15B(2)(b). Further, the Court finds that the Defendant failed to hold the security deposit in a separate-interest bearing escrow account and failed to provide the Plaintiff with a receipt indicating the location of the bank at which the security deposit was held within thirty (30) days of the Defendant’s receipt of the security deposit in violation of M.G.L. c. 186, s.15B(3)(a). The Court finds that the Defendant failed to pay interest on the security deposit in violation of M.G.L. c. 186, s.15B(3)(b)[2], nor did she return the security deposit to the Plaintiff in accordance with M.G.L. c. 186, s.15B(6)(a).

M.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.” Pursuant to M.G.L. c. 186, s.15B(7), the Court finds that the Plaintiff is entitled to treble damages due to the Defendant’s violation of M.G.L. c. 186, s.15B(6)(a). The Court finds that the Plaintiff is entitled to damages for the Defendant’s failure to: (1) hold the security deposit in a separate, interest-bearing account; (2) provide the Plaintiff with a receipt with the location of the security deposit within thirty (30) days of receiving said deposit; and (3) return the security deposit upon demand, calculated as follows: $1,250.00 monthly rent trebled to $3,750.00, plus court costs in the amount of $185.00. The Plaintiff is further entitled to $188.70 in damages for interest owed on the security deposit, calculated as follows: $0.17/day[3] x 1,110 days[4] = $188.70.

PLAINTIFF’S M.G.L. c. 93A CLAIM

year of the tenancy, on any security deposit held for a period of one year or longer from the commencement of the term of the tenancy, as required by M.G.L. c. 186, s.15B; (d) fail to hold a security deposit in a separate interest-bearing account or provide notice to the tenant of the bank and account number, in accordance with M.G.L. c. 186, s.15B…[or] (k) otherwise fail to comply with the provisions of M.G.L. c. 186, s.15B.”

In any action commenced under M.G.L. c. 93A, if the Court finds for the petitioner, “recovery shall be in the amount of actual damages or twenty-five dollars, whichever is greater, up to three but not less than two times such amount if the court finds that the use or employment of the act or practice was a willful or knowing violation of said section 2 or that the refusal to grant relief upon demand was made in bad faith with knowledge or reason to know that the act or practice complained of violated section 2.” M.G.L. c. 93A s.9(3). Further, “[I]f the Court finds in any action commenced hereunder that there has been a violation of section 2, the petitioner shall, in addition to other relief provided for by this section and irrespective of the amount in controversy, be awarded reasonable attorney’s fees and costs incurred in connection with said action.” M.G.L. c. 93A s.9(4).

On October 13, 2006, the Court determined that the Plaintiff was indigent pursuant to M.G.L. c. 261, s.27C, and ordered that court costs in the amount of $185.00 be waived. M.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., $4,038.70, plus costs of $185.00. Therefore, pursuant to M.G.L. c. 261, s.27E, the Plaintiff shall pay the sum of $185.00 in costs to the Clerk’s Office no later than thirty (30) business days following the date that judgment enters.

ORDER FOR AWARD OF DAMAGES ON DEFAULT 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 the Defendant’s failure to return the security deposit pursuant to M.G.L. c. 186, s.15B(7) in the amount of $1,250.00, trebled to $3,750.00, plus costs in the amount of $185.00.

2. Judgment enter for the Plaintiff for damages for the Defendant’s failure to pay interest on the security deposit in the amount of $188.70.

3. Judgment enter for the Plaintiff on her claim pursuant to M.G.L. c. 93A in the amount of $100.00 for violations of 940 C.M.R. 3.17(4)(b-d) and (k).

4. The Plaintiff shall pay the sum of $185.00 in costs to the Clerk’s Office no later than thirty (30) business days following the date that judgment enters.

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

————————-

[1] Mass.R.Civ.P. 55(b)(6) provides, in pertinent part: “…[N]o judgment by default shall be entered until the filing of an affidavit made by any competent person, on the affiant’s own knowledge, setting forth facts showing that the defendant is not a person in military service as defined in Article I of the Soldiers’ and Sailors’ Civil Relief Act’ of 1940, as amended, except upon order of the court in accordance with the Act.” Accordingly, judgment shall not enter against the Defendant until said military affidavit is appropriately filed with this Court.

[2] Mass.R.Civ.P. 54(c) provides, in pertinent part: “Except as to a party against whom a judgment is entered by default, every 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.”

[3] The per diem interest rate is calculated as follows: $1,250.00 security deposit x 5% = $62.50 ? 365 days = $0.17/day.

[4] The period from February 1, 2005, the date the tenancy commenced, through February 15, 2008, the date of this Decision, consists of 1,110 days.

[5] The Court does not award double or treble damages, as the Court finds that the Defendant’s violations of M.G.L. c. 93A were not willful or knowing.

End Of Decision

HOUSING COURT

Carla Teixeira v. Brunel Bajon

SOUTHEASTERN DIVISION

Docket # 06-CV-01176

Parties: Carla Teixeira v. Brunel Bajon

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: February 15, 2008

MEMORANDUM OF DECISION ON DAMAGES PURSUANT TO MASS.R.CIV.P. 55(b)(2)

The Plaintiff Carla Teixeira (“Teixeira”) filed this civil action against her former landlord, the Defendant Brunel Bajon (“Bajon”), seeking return of the remaining portion of her security deposit. On or about May 3, 2006, the parties entered into an Agreement for Mutual Rescission of Lease (“Rescission”) under which the Plaintiff agreed to vacate the Premises at 48 Rutland Street, Apartment 1 (the “Premises”) in Brockton, MA on or before July 1, 2006. The Defendant agreed to return the Plaintiff’s security deposit within twenty-one (21) days of the Plaintiff vacating the Premises. In her Complaint, the Plaintiff seeks treble damages pursuant to M.G.L. c. 186, s.15B and M.G.L. c. 93A, asserting that the Defendant returned only $300.00 of the $930.00 security deposit due her under the Rescission, leaving $630.00 unpaid.

Defendant Brunel Bajon failed to appear or otherwise answer the Complaint and she was accordingly defaulted.[1] The Plaintiff appeared with counsel at the initial Case Management Conference and

at the hearing for Assessment of Damages. Following the Entry of Default under Mass.R.Civ.P. 55(a) by the Clerk on January 10, 2007, the Court on September 11, 2007 took testimony and received a Statement of Damages from the Plaintiff for the purposes of entering a judgment amount pursuant to Mass.R.Civ.P. 55(b)(2). The Plaintiff indicated she paid a security deposit of $1,000.00 to the Defendant and, by agreement of the parties as represented in the Rescission, expected the sum of $930.00 back, of which she has only received $300.00. For the reasons set forth below, the Court now awards damages to the Plaintiff in the amount of $630.00, trebled to $1,890.00, pursuant to M.G.L. c. 186, s.15B(6) and (7), plus interest on the security deposit in the amount of $84.28 and court costs in the amount of $173.86. Counsel for the Plaintiff has represented to the Court that she does not seek attorney’s fees.

PLAINTIFF’S SECURITY DEPOSIT CLAIM PURSUANT TO M.G.L. c. 186, s.15B

The Plaintiff has alleged in her Complaint that she paid a security deposit of $1,000.00 to the Defendant, of which $630.00 remains to be returned pursuant to the Rescission. The Plaintiff further states that she was a tenant of the Defendant at 91 Hillberg Avenue (the “Premises”) in Brockton, MA from December 2005 through July 2006. As the Defendant has been defaulted, the Court must construe all allegations in favor of the Plaintiff. See Rosa and Pinto v. Ross, Southeastern Housing Court Docket No. 02-CV-00642 (Dec. 20, 2005)(Edwards, J.)(defaulting the Defendant and awarding the Plaintiff damages for the Defendant’s failure to comply with M.G.L. c. 186, s.15B); Acarli v. Feinberg and Shapiro, Boston Housing Court Docket No. 98-CV-00955 (Nov. 4, 1998)(Winik, J.)(defaulting the Defendant and awarding the Plaintiff damages for the Defendant’s failure to comply with M.G.L. c. 186, s.15B).

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.”

M.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 “(a) fails to deposit such funds in an account as required by subsection (3);…(d) fails to transfer such security deposit to his successor in interest or to otherwise comply with the provisions of subsection (5) after he has succeeded to an interest in residential real property; 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 the termination of the tenancy.”

The Court finds that the Defendant violated each of the above provisions in the following ways. The Plaintiff alleges, and the Court finds, that the Defendant failed to provide the Plaintiff with a receipt for the security deposit, in violation of M.G.L. c. 186, s.15B(2)(b). Further, the Court finds that the Defendant failed to hold the security deposit in a separate-interest bearing escrow account and failed to provide the Plaintiff with a receipt indicating the location of the bank at which the security deposit was held within thirty (30) days of the Defendant’s receipt of the security deposit in violation of M.G.L. c. 186, s.15B(3)(a). The Court finds that the Defendant failed to pay interest on the security deposit in violation of M.G.L. c. 186, s.15B(3)(b)[2], nor did she return the security deposit to the Plaintiff in accordance with M.G.L.c. 186, s.15B(6)(a).

M.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.” Pursuant to M.G.L. c. 186, s.15B(7), the Court finds that the Plaintiff is entitled to treble damages due to the Defendant’s violation of M.G.L. c. 186, s.15B(6)(a). The Court finds that the Plaintiff is entitled to damages for the Defendant’s failure to: (1) hold the security deposit in a separate, interest-bearing account; (2) provide the Plaintiff with a receipt with the location of the security deposit within thirty (30) days of receiving said deposit; and (3) return the security deposit upon demand, calculated as follows: $630.00 trebled to $1,890.00, plus court costs in the amount of $173.86. The Plaintiff is further entitled to $84.28 in damages for interest owed on the security deposit, calculated as follows: [$0.14/day[3] x 233 days[4] = $32.62] + [$0.09/day[5] x 574 days[6] = $51.66] = $84.28.

The Court further notes that the Plaintiff has alleged that the Defendant breached the contract or Rescission between the parties by failing to return the Plaintiff’s security deposit within twenty-one (21) days from the date the Plaintiff vacated the Premises. As the Defendant has been defaulted, the Court must construe all allegations in favor of the Plaintiff. See Rosa and Pinto, Southeastern Housing Court Docket No. 02-CV-00642; Acarli, Boston Housing Court Docket No. 98-CV-00955. Accordingly, the Court finds that the Defendant breached the Rescission between the parties by failing to return the remaining deposit. In a breach of contract action, a successful plaintiff is entitled to damages sufficient to put him or her in as good a position as if there had been no breach and the contract had been completed. Concannon v. Galanti, 348 Mass. 71, 74 (1964); Magnolia Metal Co. v. Gale, 189 Mass. 124, 132 (1905); Costa v. Del La Femina, 2006 Mass. Super. LEXIS 493, *19. The Plaintiff alleged actual damages in the amount of $630.00. The Court finds that the Plaintiff is entitled to damages in the amount of $630.00 for the Defendant’s breach of the Rescission, which represents the sum necessary to put the Plaintiff in the position she would have been in had the Defendant fully performed according to the terms of the Rescission.

PLAINTIFF’S M.G.L. c. 93A CLAIM

return the security deposit upon receipt of the Plaintiff’s demand for said deposit.

Pursuant to the Attorney General’s Consumer Protection Regulations codified at 940 CMR 3.17 (4)(b-d) and (k): “It shall be an unfair or deceptive practice for an owner to:…(b) fail to give to the tenant…a written receipt indicating the amount of the security deposit, if any, paid by the tenant, in accordance with M.G.L. c. 186, s.15B; (c) fail to pay interest at the end of each year of the tenancy, on any security deposit held for a period of one year or longer from the commencement of the term of the tenancy, as required by M.G.L. c. 186, s.15B; (d) fail to hold a security deposit in a separate interest-bearing account or provide notice to the tenant of the bank and account number, in accordance with M.G.L. c. 186, s.15B…[or] (k) otherwise fail to comply with the provisions of M.G.L. c. 186, s.15B.”

C.M.R. 3.17(4)(k) and M.G.L. c. 186, s.15B(6)(a). Accordingly, the Court finds that the Defendant is subject to statutory damages of $25.00 for each violation. The Court therefore awards the Defendant $100.00 for the four separate violations of M.G.L. 93A and the Attorney General’s Regulations at 940 CMR 3.17(4)(b-d) and (k).[7]

On November 6, 2006, the Court determined that the Plaintiff was indigent pursuant to M.G.L. c. 261, s.27C, and ordered that court costs in the amount of $173.86 be waived. M.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., $2,074.28, plus costs of $173.86. Therefore, pursuant to M.G.L. c. 261, s.27E, the Plaintiff shall pay the sum of $173.86 in costs to the Clerk’s Office no later than thirty (30) business days following the date that judgment enters.

ORDER FOR AWARD OF DAMAGES ON DEFAULT 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 the Defendant’s failure to return the security deposit pursuant to M.G.L. c. 186, s.15B(7) in the amount of $630.00, trebled to $1,890.00, plus costs in the amount of $173.86.

2. Judgment enter for the Plaintiff for damages for the Defendant’s failure to pay interest on the security deposit in the amount of $84.28.

3. Judgment enter for the Plaintiff on her claim pursuant to M.G.L. c. 93A in the amount of $100.00 for violations of 940 C.M.R. 3.17(4)(b-d) and (k).

4. The Plaintiff shall pay the sum of $173.86 in costs to the Clerk’s Office no later than thirty (30) business days following the date that judgment enters.

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

————————-

[3] The per diem interest rate is calculated as follows: $1,000.00 security deposit x 5% = $50.00 ? 365 days = $0.14/day.

[4] The period from December 1, 2005, the date the tenancy commenced, through July 21, 2006, the date the Defendant returned $300.00 to the Plaintiff, consists of 233 days.

[5] The per diem interest rate is calculated as follows: $630.00 remaining security deposit x 5% = $31.50 ? 365 days = $0.09/day.

[6] The period from July 22, 2006 through February 15, 2008, the date of this Decision, consists of 574 days.

[7] The Court does not award double or treble damages, as the Court finds that the Defendant’s violations of M.G.L. c. 93A were not willful or knowing.

End Of Decision

HOUSING COURT

Mary Beth Witkavitch, PLAINTIFF v. William F. Caccialini[1]

DEFENDANT

SOUTHEASTERN DIVISION

Docket # Docket No. 07-SP-07779

Parties: Mary Beth Witkavitch, PLAINTIFF v. William F. Caccialini[1]

DEFENDANT

Judge: /s/ WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: February 14, 2008

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

This summary process action was brought by the Plaintiff, Mary Beth Witkavitch (‘Witkavitch’) against the Defendant, William Caccialini (‘Caccialini’) for possession and damages for unpaid rent in the amount of $1,300.00. The Defendant did not file an Answer, but did present a counterclaim at trial alleging that the Plaintiff breached the covenant of quiet enjoyment pursuant to M.G.L. c. 186, s.14. Both parties appeared pro se.

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

Plaintiff’s Claim for Possession and Unpaid Rent

Plaintiff Mary Beth Witkavitch testified that she is the owner of a single family home at 40 Lake Road in Plymouth, MA (the ‘Premises’). She further testified that the Defendant, a tenant-at-will, moved in to the Premises on November 15, 2007 pursuant to a Residential Lease Agreement, Month to Month, (the ‘Agreement’).[2] Plaintiff’s Exhibit 1. Witkavitch stated that the monthly rent is $1,300.00 per month inclusive of utilities and is due on or before the first of the month. She also testified that beginning on January 1, 2008 and continuing to the end of March 2008, the monthly rent increased to $1,350.00 to reflect increased oil expenses.

She continued her testimony by indicating that the half month’s rent for the period November 15, 2007 through November 30, 2007, in the amount of $650.00, was paid partially by the Defendant and partially through the Residential Assistance for Families in Transition (‘RAFT’) Program.[3] She recounted that she did not receive rent for the month of December 2007 from the Defendant but did receive $300.00 from a church on behalf of the Defendant, which she stated she has not credited to the rent as of the date of trial. She further stated that she has not received any rent for the month of January 2008.

The Plaintiff testified that she conducted negotiations with South Shore Housing Development Corporation (‘South Shore Housing’) in November 2007 relative to the Defendant’s tenancy. As a result of those negotiations, the Plaintiff stated that she accepted payments in the amount of $2,600.00 from South Shore Housing, representing the last month’s rent in the amount of $1,300.00 and a security deposit for the Premises in the amount of $1,300.00. Plaintiff’s Exhibit 2.[4]

The Court found her testimony credible.

The Plaintiff identified a Fourteen-Day Notice to Quit for nonpayment of rent, Plaintiff’s Exhibit 4, which was served on the Defendant on December 3, 2007.[5] The Plaintiff served the Defendant with a Summons and Complaint on December 17, 2007, citing nonpayment of rent as the reason for eviction and with an Account Annexed of $1,300.00.[6]

The Defendant William Caccialini confirmed that he paid $250.00 towards the November rent to the Plaintiff, and that RAFT had paid the Plaintiff an additional $400.00 for the month of November 2007. As to the December rent, the Defendant testified that two separate churches had each sent the Plaintiff $300.00, for a total of $600.00,

rather than the $300.00 acknowledged by the Plaintiff. He had no separate confirmation for the second $300.00 church payment. He further confirmed that he had not made any payments directly to the Plaintiff for either December 2007 or January 2008. The Court found him credible in his testimony.

The Court finds that the Agreement commenced on November 15, 2007. Plaintiff’s Exhibit 1, p. 3. Further, under paragraph 5 of the Agreement, the parties agreed as follows: ‘Tenant agrees to pay rent unto the Landlord during the term of this Lease in equal monthly installments of $1,300.00, said installment for each month being due and payable on or before the 1st day of the month, the first full rent payment under this Lease being due on the 15th of November 2007. Tenant agrees that if rent is not paid in full on or before the 1st day of the month, Tenant will pay a late charge of $25.00 as allowed by applicable Massachusetts law.’ The paragraph continues as follows: ‘The prorated rent from the commencement of this Lease to the first day of the following month is $ [blank in original] which amount shall be paid at the execution of this Lease’. Plaintiff’s Exhibit 1, p.5.

The parties also executed an Amendment to the Agreement (the ‘Amendment’) in which the Defendant agreed to make an additional monthly payment of $50.00 to the Plaintiff for the months of January through March 2008. ‘Given the skyrocketing price of oil, the tenant agrees to a monthly increase of $50.00 for the months of January through March 2008.’ Plaintiff’s Exhibit 1, Amendment, p.8.

The Court accordingly finds that the Defendant owes rent for the month of December 2007 in the amount of $1,300.00 and for January 2008 in the amount of $1,350.00, less $300.00 credit for monies received and $1,300.00 credit for the last month’s rent, leaving a total rent due in the amount of $1,050.00. The Court finds that, based on the testimony of both parties, there was no waiver by the Plaintiff of the Notice to Quit by the receipt of $300.00 from the church. A landlord has the right to possession pursuant to M.G.L. c. 239, s.1. The Court finds that the Plaintiff has proven her prima facie case for possession and damages for unpaid rent against the Defendant in the amount of $1,050.00 plus costs, calculated as follows: $1,300.00 for the month of December 2007 and $1,350.00 for the month of January 2008, less credits totaling $1,600.00 ($300.00 from the church and $1,300.00 from the RAFT program). The Defendant presented his quiet enjoyment counterclaim.[7]

The Defendant’s Quiet Enjoyment Counterclaim

M.G.L. c. 239, s.8A p.1 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.’ M.G.L. c. 239 s.8A p.5 provides: ‘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 William Caccialini testified that on Christmas Eve, December 23 [sic], 2007, the Plaintiff appeared at the Premises,

demanded rent from him, and threatened to ‘…burn the house down’. He also testified that in response he told the Plaintiff he would file a complaint with the police department. He was credible in his testimony.

The Plaintiff in rebuttal testified that she did not threaten to burn down the Premises in such terms but said that ‘…at the end of two months, I want this house burned down so my only cost would be property taxes and I wouldn’t have any tenants.’ She was credible in her testimony.

The Defendant alleges a breach of M.G.L. c. 186, s.14, the quiet enjoyment statute. M.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…’. While the statute does not require that the landlord’s conduct be intentional, Simon v. Solomon, 385 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. 273, 284-285 (1994); Lowery v. Robinson, 13 Mass.App.Ct. 982 (1982).

Based upon the testimony of the parties, the Court finds that it was highly improbable that the Plaintiff’s statement that she intended to burn down the Premises signaled an immediate intent to take such action. The Court finds that the Plaintiff’s statement, in the context of this case, was merely an expression of anger and frustration. See Chestnut Park Assocs. v. Munford, Hampden Housing Court Docket No. SP2224-S87 (June 18, 1987)(Abrashkin, J.) Accordingly, the Court finds that the Plaintiff did not seriously interfere with the Defendant’s quiet enjoyment of the Premises. See id. The Court finds for the Plaintiff on the Defendant’s quiet enjoyment counterclaim.

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 and damages for unpaid rent in the amount of $1,050.00, plus costs.

2. Judgment enter for the Plaintiff on the Defendant’s quiet enjoyment counterclaim.

3. Execution to issue ten (10) days from the date judgment enters.

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[1] At trial, the parties assented to an amendment of the Notice to Quit and Summons and Complaint to correct the first name of the Defendant to William. The Clerk is to make the change in the docketing of this case.

[2] Page 1 of the Agreement indicates that the Lessees are

William F. Caccialini and Marie Maxim. There are no signatures or initials anywhere on the Agreement by said Marie Maxim, nor was she made a party to the action.

[3] The Plaintiff testified that the Defendant paid $250.00 towards the rent for the month of November 2007, and the RAFT program provided the remaining $400.00. The Court notes that the RAFT contract, Plaintiff’s Exhibit 2, indicates that RAFT made a $400.00 payment towards the Defendant’s security deposit, but the Plaintiff testified and the Court finds that the $400.00 payment was applied to the Defendant’s rent for the month of November 2007.

[4] The RAFT contract indicates that the Plaintiff received $2,600.00 towards the first and last month’s rent for the Premises. The Plaintiff testified, however, that she applied $1,300.00 to the last month’s rent and $1,300.00 was used as a security deposit.

[5] The Court notes that the Notice to Quit is dated November 30, 2007, but it was not served on the Defendant until December 3, 2007. Plaintiff’s Exhibit 4.

[6] The Notice to Quit was served at 1:59 P.M. on December 3, 2007; the Summons and Complaint was served at 2:14 P.M. on December 17, 2007.

[7] ‘When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.’ M.R.C.P. 15(b). Both parties proceeded at trial as to the Plaintiff’s alleged breach of the covenant of quiet enjoyment.

End Of Decision

HOUSING COURT

Paul Bien-Aime and James Paul v. Marvin Winston

SOUTHEASTERN DIVISION

Docket # 07-SP-07872

Parties: Paul Bien-Aime and James Paul v. Marvin Winston

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: March 11, 2008

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

This summary process action was brought by the Plaintiffs, Paul Bien-Aime (“Bien-Aime”) and James Paul (“Paul”), against the defendant, Marvin Winston (“Winston”), for possession and unpaid rent. The Defendant filed an Answer and counterclaim alleging adverse conditions at the Premises.[1] The parties appeared pro se. The Court took judicial notice of a companion case, #08-CV-00047, Marvin Winston v. Paul Bien-Aime and James Paul, in which Winston sought injunctive relief for repairs to the Premises.

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

The Plaintiffs are the owners of a three-family building located at 557 Montello Street in Brockton, MA (the “Building”), which they purchased on August 14, 2007. Plaintiff Paul Bien-Aime testified that the Defendant resided in the third floor apartment in the Building (the “Premises”) at the time the Plaintiffs purchased the property.

Bien-Aime went on to testify that the monthly rent paid by the Defendant was $825.00, due on the first of the month.[2] The Defendant paid the monthly rent of $825.00 for both September and

October 2007. The Defendant made only a partial payment of $700.00 for the month of November 2007, leaving a balance of $125.00. The Plaintiff completed his testimony by stating that no rent had been paid for the months of December 2007 and for January and February 2008. He was credible in his testimony.

The Plaintiffs served the Defendant with a thirty-day Notice to Quit on October 29, 2007. Plaintiff’s Exhibit 1. The Summons and Complaint was served on the Defendant on December 14, 2007 with an account annexed of $125.00 for December 2007. At trial, the Plaintiffs moved to amend the Complaint to add rent due through the date of trial, February 6, 2008, in the amount of $2,750.00.[3] The Court allowed the amendment.

The Defendant acknowledged that he had not paid rent for December 2007 and January and February 2008 and the Court found him credible on this issue.

A landlord has the right to possession pursuant to M.G.L. c. 239, s.1. The Court finds that the Plaintiffs have proven their prima facie case for possession against the Defendant and damages in the amount of $2,600.00, plus costs. The Defendant presented his defenses.

M.G.L. c. 239, s.8A €1 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.” Pursuant to M.G.L. c. 239, s.8A €2, where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to a defense to possession only if: (1) the landlord knew or should have known of the 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 as to conditions in the common area of the Building and the Premises, including a broken hallway light fixture, a broken front common area door, and a broken door to the Premises. The Defendant introduced into evidence a report generated by Richard Hughes, Sanitary Inspector for the Brockton Board of Health, as to an inspection conducted at the Premises on January 22, 2008. Defendant’s Exhibit A. The inspection report indicated the following violations of 105 CMR 410.00 Chapter II, Minimum Standards of Fitness for Human Habitation: “410.500: Replace entry door to unit; 253(A): Restore common area lights to front and back halls; 351: Provide globe for light fixture; 482: Secure smoke detector in bedroom; 500: Replace broken tiles in kitchen; 500: Replace front entry door to house.” Defendant’s Exhibit A, Page 2. The Defendant was credible in his testimony.

This Court takes judicial notice of the companion civil action #08-CV-00047, Marvin Winston v. Paul Bien-Aime and James Paul, filed on January 28, 2008. The Court reviewed Mr. Winston’s request for injunctive relief as to a number of the violations indicated in Defendant’s Exhibit A.[4] Mr. Winston testified in the civil matter, and confirmed his testimony in this summary process case, that sometime in mid to late December 2007 he was hospitalized for an unspecified condition. Following his discharge from the hospital, he

found that he had locked himself out of the Building and the Premises. To get into his unit, Winston testified he kicked in both the exterior common area door and the interior door to his unit. There was additional testimony in the civil case from both Plaintiffs that they had attempted to make repairs to the common area lights in the front and back halls but were unable to complete those repairs in a timely matter. The Court, Edwards, J., following testimony from both parties in #08-CV-00047, found that the damage to the two doors was caused by Mr. Winston and, accordingly, ordered Mr. Winston to pay for the reasonable cost to repair or replace the two doors.[5] He was further ordered to permit the Plaintiffs access to his Premises for the purposes of inspection and repair.[6]

Plaintiff James Paul, in #08-CV-00047, testified credibly that he had attempted to make the repairs to the hallway lights but neither he nor his co-Plaintiff testified to any additional repair or corrections of violations noted in Defendant’s Exhibit A, the Board of Health inspection report. Mr. Paul further testified that the Defendant had damaged the doors noted in the Board of Health report as requiring repair or replacement. The Plaintiff introduced evidence, Plaintiffs’ Exhibits 2 and 3, of the damage to the doors. Mr. Paul was credible in his testimony.

The implied warranty of habitability is the landlord’s promise that the premises will meet certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the tenant is in material violation of the minimum standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). A landlord must have actual or constructive notice of the condition creating the violation. McKenna v. Begin, 3 Mass.App.Ct. 168 (1975). Damages are assessed from the date the landlord had notice of the condition of disrepair. Berman & Sons v. Jefferson, 379 Mass. 196 (1979). The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises as warranted and the fair rental value of the premises with the defects. McKenna v. Begin, supra at 172.

The Court finds, based upon the totality of the testimony of the parties, that there was no material breach of the implied warranty of habitability as to the Premises and the common areas. Specifically, the Court finds that the Defendant was responsible for the damage to the doors accessing the Premises and the common areas. Therefore, the damaged doors cannot be the basis for recovery on the Defendant’s warranty of habitability claim. See Kehoe v. Lees, Southeast Housing Court Docket No. 01-SP-05228 (Nov. 21, 2001)(Chaplin, J.). Furthermore, the Court finds that none of the other conditions listed on the Board of Health inspection report, including the broken hallway light, cracked tiles, or unsecured smoke detectors, constitute a material violation of the minimum standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). Accordingly, the Court finds for the Plaintiffs on the Defendant’s claim for breach of the implied warranty of habitability.

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 and damages for unpaid rent in the amount of $2,600.00, calculated as follows: $125.00 unpaid rent for the month of November 2007, plus unpaid rent at the rate of $825.00 per month for the months of December 2007 and January and February 2008, plus costs.

2. Judgment enter for the Plaintiffs on Defendant’s implied warranty of habitability counterclaim.

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

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[1] The Defendant’s Motion to File Late Answer and Counterclaims was allowed by this Court, Edwards, J., on February 1, 2008.

[2] Plaintiff Paul Bien-Aime testified that he and his co-owner James Paul were asking $875.00 per month for the Premises but the Defendant had never agreed to pay that amount. The monthly rent has remained at $825.00 for the duration of the tenancy, as there was no agreement of the parties to increase the rent, nor was there an effective termination of the tenancy with an accepted offer to create a new tenancy at the higher rent. Williams v. Seder, 306 Mass. 134, 137 (1940); J. Hunter Realty v. Gomes, Boston Housing Court Docket No. 96-SP-02741 (Jan. 10, 1997)(Winik, J.).

[3] The Plaintiffs’ Amendment requests that the Court compute the monthly rent at $875.00 rather than $825.00. However, the monthly rent remained at $825.00 for the duration of the tenancy, as there was no agreement of the parties to increase the rent, nor was there an effective termination of the tenancy with an accepted offer to create a new tenancy at the higher rent. Williams, 306 Mass. at 137; J. Hunter Realty, Boston Housing Court Docket No. 96-SP-02741. Accordingly, the Court finds that the rent due totals $2,600.00, calculated as follows: $125.00 due for November 2007, and $825.00 per month due for the months of December 2007 and January and February 2008.

[4] In his application for a temporary restraining order in #08-CV-00047, Winston complained of lack of heat and a broken hallway light and back door to the Premises. He also requested that this Court enjoin the Defendants in that action, Bien-Aime and Paul, from interfering with Winston’s quiet enjoyment of the Premises.

[5] The Plaintiffs were ordered to complete the repair of the common area hallway lights.

[6] Although Winston complained of lack of heat at the Premises in his application for a temporary restraining order, the Board of Health did not find that the Premises lacked heat at its January 22, 2008 inspection. Accordingly, the Court found no credible evidence that the Premises was without adequate heat.

End Of Decision

HOUSING COURT

Plymouth Housing Authority v. Maria Petrelli

SOUTHEASTERN DIVISION

Docket # 06-SP-04823

Parties: Plymouth Housing Authority v. Maria Petrelli

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: March 26, 2008

FINDINGS OF FACT, RULINGS OF LAW AND ORDER OF JUDGMENT ON DEFENDANT’S COUNTERCLAIMS

This summary process action was initially brought by the Plaintiff, Plymouth Housing Authority, against the Defendant, Maria Petrelli[1], for an alleged breach of the lease agreement between the parties. The Defendant filed an Answer and Counterclaims, alleging that the Plaintiff failed to make reasonable accommodations due to her mental condition, breached the covenant of quiet enjoyment, breached the implied warranty of habitability and violated M.G.L. c. 93A. The Defendant further requested class action status. Both parties are represented by counsel.

Following a hearing on the Plaintiff’s Motion for Declaratory Judgment seeking possession of the Premises leased by the Defendant due to alleged abandonment, the Court, Edwards, J., on October 6, 2006 found that the Defendant had in fact abandoned the Premises in question and allowed the Plaintiff’s motion. No appeal was taken on the decision.

The Court, Edwards, J., commenced the trial on the Defendant’s counterclaims on June 8, 2007 and, following a continuance by agreement of the parties, completed the trial on September 21, 2007. The parties stipulated at the start of the trial that the only

remaining counterclaims were breach of the implied warranty of habitability and breach of quiet enjoyment.[2] All other counterclaims were dismissed without prejudice.

Based upon all the credible testimony and evidence presented at the hearing, and the reasonable inferences drawn therefrom, the Court finds the following:

Tracey Carpenter (“Carpenter”), the Resident Service Administrator of the Plymouth Housing Authority (the “Authority”), testified that she has been with the Authority for five and one-half years. She testified that the High Cliff Housing Development (the “High Cliff Development”), where the Defendant resided, is for elderly (over 65) and disabled (any age) households. Her job is to administer and manage the development, as the tenants call her with any issues related to their units. She further stated that High Cliff Development is comprised of eighty-two units and is subject to Department of Housing and Urban Development (“HUD”) regulations as to rental and lease provisions. Disabled applicants and residents must have a verified disability and can not hold a full time job.

Carpenter testified that the Authority does not provide any support services to the residents of the High Cliff Development and that they are referred to the Council on Aging or Old Colony Elder Services for specific support. If a tenant would like to have a pet, there is a policy that requires an application and a deposit. Guests of residents may not remain more than three weeks.

Carpenter testified that the Defendant moved into her unit in February 2004 as a disabled applicant. She further stated that the Authority does not require an applicant to identify their disability. There are 12 tenants in the High Cliff Development that are under 62 years of age and disabled. She testified that the Defendant self-identified as mentally challenged.

Carpenter stated that, during the summer of 2004, she began to receive verbal complaints from other tenants regarding the Defendant. She stated that these complaints alleged that the Defendant requested money from other residents and barbequed on her rear patio. Ms. Carpenter advised the other tenants that per the Authority’s policy, they would have to put any complaints in writing. She went on to say that she met with the Defendant’s brother in the summer of 2004 to discuss the oral complaints and to possibly resolve the issues through him. She identified a document, Plaintiff’s Exhibit 1, as a summary of a July 12, 2004 meeting with the Defendant’s brother. She related that part of the discussion was that the High Cliff Development might not be appropriate for the Defendant’s needs. Ms. Carpenter testified that to her knowledge the Defendant had previously received support in a home setting. She also testified that no one at the July 12, 2004 meeting threatened the Defendant with eviction. She stated that following the meeting, the Authority received a letter from counsel for the Defendant directing that all further communication should be through him. Ms. Carpenter was credible in her testimony.

Joan Pimental (“Pimental”) testified for the Plaintiff as its Executive Director. She stated that she has been in that position for over 20 years and she is a certified Public Housing Manager. She identified the Lease (the “Lease”) between the parties, Plaintiff’s Exhibit 4, as the standard lease document used by the Authority and by HUD. Further, she identified the Defendant’s brother, Mario Petrelli, as a representative of the Defendant.

She confirmed that she had also received calls from other tenants in the High Cliff Development regarding inappropriate behavior by the Defendant. Pimental testified that she was aware that the Defendant’s apartment at the High Cliff Development was a change from her previous living situation in a residential setting. She attended the July 12, 2004 meeting with Tracey Carpenter and the Defendant’s brother, Mario Petrelli. She also testified that the Authority was attempting to find another location where the Defendant could receive appropriate services for her disability. She did confirm that she made a statement during the meeting that the Defendant’s inappropriate behavior, if it continued, would possibly trigger an eviction action. She stated that she believed that Mr. Petrelli understood the issues addressed at the July 12, 2004 meeting. She acknowledged receipt of a letter from the Defendant’s counsel dated July 21, 2004, Plaintiff’s Exhibit 5, requesting that all communication between the parties be directed through the Defendant’s counsel and further requesting that the Plaintiff investigate the conduct of another resident at the High Cliff Development. Ms. Pimental testified that the Authority took no further action following the July 12, 2004 meeting, through May 17, 2005.

Sometime in May 2005, the Authority concluded that the Defendant’s continued conduct towards other tenants of the High Cliff Development constituted a breach of the Lease. On May 17, 2005, the Defendant was served with a Notice of Termination of her Lease. Plaintiff’s Exhibit 6. She was offered a Grievance Hearing, which was held in August 2005 and chaired by an Colleen Doherty, Executive Director of the Taunton Housing Authority. As a result of the Grievance Hearing, the Authority’s decision to terminate the Defendant’s tenancy was upheld and the summary process action was subsequently commenced.

Ms. Pimental described efforts to resolve the issues with the Defendant’s behavior at the High Cliff Development. These efforts included contacts with South Shore Housing, the Department of Mental Health and the Tenancy Preservation Program (TPP), in an effort to assist the Defendant in obtaining appropriate services. Ms. Pimental denied any conspiracy between the Authority and the tenants of the High Cliff Development to harass the Defendant. The Court found Ms. Pimental’s testimony credible.

Three residents from the High Cliff Development testified at trial.

The first resident was a Karyn Forge (“Forge”), a resident of the High Cliff Development for twelve years. She testified that she befriended the Defendant when the Defendant moved into the development but problems between them arose in 2004. Forge testified that the Defendant asked her for money and that she often paced back and forth in the common areas. She identified a written complaint she filed with the Authority on or about August 23, 2004 regarding an incident with the Defendant. Defendant’s Exhibit Q. On cross-examination, she indicated that she did not know that the Defendant needed money to pay for transportation to Jordan Hospital. Ms. Forge was credible in her testimony.

The second resident, Penny Phillips (“Phillips”), testified that she had resided in the Development for sixteen years. She indicated in her testimony that she had welcomed the Defendant when she moved into the High Cliff Development, playing puzzles with her and

involving the Defendant with other activities. Her apartment, Phillips testified, was diagonally across the hall from the Defendant’s unit. She said the Defendant’s behavior while she resided at the High Cliff Development concerned her and she advised the Defendant of possible rule violations. She described overhearing an argument between the Defendant and her boyfriend and that she saw that the boyfriend sometimes stayed overnight. Her testimony was credible.

The third resident, Marcia Govoni (“Govoni”), has resided at the High Cliff Development for eight years. She lived next door to the Defendant, and they first met when the Defendant moved in. Govoni allowed the Defendant to use her phone. Govoni stated that the relationship between she and the Defendant changed because she felt she and others were mistreated by the Defendant. The mistreatment included at least one instance during which the Defendant yelled at resident Karyn Forge. On cross-examination Govoni identified a letter from the Authority dated June 24, 2005 to the Defendant related to an incident in which the Defendant used a personal barbeque grill on her porch against the Authority’s rules. Defendant’s Exhibit S. She was credible in her testimony.

Mario Petrelli, the Defendant’s brother, testified. He stated that he helps her with minor bookkeeping matters and in filling out forms. He says that Maria moved to the High Cliff Development sometime in 2003. He testified that he saw how closely the other tenants in the High Cliff Development monitored his sister. Further, he also saw one tenant listening at Maria’s door. He testified that he reported this incident to the Authority. He acknowledged that his sister Maria, the Defendant, did not attend the July 12, 2004 meeting. He was credible in his testimony.

The Defendant, Maria Petrelli-Newcombe, testified to the presence of ants in the apartment, particularly the living room. She stated that she tried to sweep them up and stomp on them, and confirmed that letters were sent to the Authority in April of 2005 concerning the problem. Defendant’s Exhibits W and X.

She went on in her testimony concerning her relationship with the other tenants in the High Cliff Development. She said that some of the tenants would stand outside her door, and that other tenants were writing things down. She stated that she felt unsafe in her apartment because the other tenants were watching her. She testified that she was also called “stupid”, “retarded” and “sick in the head”, and that threats were made against her. The Defendant further testified that she told the Authority of the name calling. She said that when she had friends over, other tenants would spy on her. She also described being anxious and depressed because other tenants were always watching her or listening to her movements or private conversations. The Defendant was particularly concerned about the next door neighbor, who, she testified, kept his door open twenty-four hours a day.

The Defendant confirmed her hospitalization at McLean Hospital in 2004 and that her medications prior to that caused problems. She stated that she moved her personal items out of the apartment because she was moving in with her boyfriend and that the High Cliff Development was not the proper environment for them. She stated that when she moved to Kingston, MA to her boyfriend’s house, it was a dramatic improvement to her life because she felt that she wasn’t being monitored twenty-four hours a day. She felt that the tenants

and the Authority were out to get her because of the way they treated her. She stated that she is currently employed and not paranoid. She was credible in her testimony.

Kristine M. Duhamel (“Duhamel”) is a licensed social worker (LISW) with Duxbury Counseling Services and is affiliated with McLean Hospital. She testified that she treated the Defendant following her hospitalization in 2004. She describes the Defendant’s disability as anxiety disorder, cognitive delay and mild mental retardation. The disability may have been caused by a childhood disease.

Duhamel testified that she initially saw the Defendant once a week and occasionally speaks with her on the phone between visits; she now sees her once a month. She further stated that the Defendant’s disorder appears to be caused by stress and her housing situation. Duhamel stated that the Defendant told her of individuals listening at her door and other tenants watching her when she entered the building, and that it made the Defendant feel uncomfortable. She stated that she believes that the Defendant’s stories related to the other tenants in the High Cliff Development are not made up and that it was having a serious detrimental effect on her life.

Duhamel said that her job was to provide Ms. Petrelli-Newcombe with therapies to cope with stress. She confirms that the Defendant received treatment from doctors at McLean Hospital. She stated that the Defendant’s condition has also improved and she has become less anxious over time due to therapies, problem-solving techniques, and management of issues, along with her medication regimen. She related that the Defendant has moved from the High Cliff Development and is now married and living in a separate household with her husband.

On cross-examination, Duhamel stated that the Defendant was hospitalized for statements related to suicide, according to information furnished from the social worker at McLean. She is not aware of any other mentally challenged tenants at the High Cliff Development. Further, in addition to issues with the living situation at the High Cliff Development, Duhamel testified that there were other stress generators for the Defendant. It was Duhamel’s opinion that the Defendant could live in her own apartment without supportive services, though she is paranoid but not delusional.[3] She testified that the Defendant is now less anxious, is not displaying symptoms of paranoia, and is basically happy. Ms. Duhamel was credible in her testimony.

DEFENDANT’S BREACH OF IMPLIED WARRANTY OF HABITABILITY COUNTERCLAIM

The Defendant has alleged that the presence of ants at the Premises constitutes a breach of the implied warranty of habitability. The Defendant testified that the ants were throughout the entire Premises, and that she tried to sweep them up or stomp on them when they first appeared. She further testified that she notified the Authority of the problem by letter on May 7, 2005 and July 22, 2005. Defendant’s Exhibits W and X. She alleges in her Complaint that the Plaintiff never addressed the problem of the ant infestation.

The implied warranty of habitability is the landlord’s promise that the premises will meet certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the

tenant is in material violation of the minimum standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). A landlord must have actual or constructive notice of the condition creating the violation. McKenna v. Begin, 3 Mass.App.Ct. 168 (1975). Damages are assessed from the date the landlord had notice of the condition of disrepair. Berman & Sons v. Jefferson, 379 Mass. 196 (1979). The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises as warranted and the fair rental value of the premises with the defects. McKenna v. Begin, supra at 172.

The Court finds that the Defendant has failed to meet her burden that the conditions at the Premises breached the implied warranty of habitability. The Defendant failed to present sufficient evidence as to the time frame or extent of the alleged ant infestation at the Premises. The Court finds that the alleged condition with the ants does not constitute a material breach of the State Sanitary Code. Accordingly, the Court finds for the Plaintiff on the Defendant’s claim for breach of the implied warranty of habitability.

DEFENDANT’S BREACH OF QUIET ENJOYMENT COUNTERCLAIM

The Defendant alleges that the Plaintiff breached the covenant of quiet enjoyment by: 1) failing to address the ant infestation at the Premises, and 2) permitting other tenants at the High Cliff Development to harass and threaten the Defendant. M.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…” A landlord violates M.G.L. c. 186, s.14 where he had notice, or reason to know of the serious condition in the tenant’s apartment, and failed to take appropriate corrective measures. Al Ziab v. Mourgis, 424 Mass. 847, 850-851 (1997); Cruz Management Co., Inc. v. Thomas, 417 Mass. 782 (1994).

Not every breach of the implied warranty of habitability constitutes a violation of M.G.L. c. 186, s.14. While the statute does not require that the landlord’s conduct be intentional, Simon v. Solomon, 385 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. 273, 284-285 (1994); Lowery v. Robinson, 13 Mass.App.Ct. 982 (1982). The Court finds that the Defendant has failed to show that the Plaintiff breached the covenant of quiet enjoyment. The Defendant has failed to present any evidence or testimony indicating that the Authority instructed or encouraged any residents of the High Cliff Development to harass or threaten the Defendant. The Defendant did not obtain testimony from any of the residents who testified indicating to the Court that the Plaintiff directly or indirectly instructed those residents to interfere with the Defendant’s quiet enjoyment of her Premises. Joan Pimental testified, and the Court finds, that the Authority did not conspire with other residents of the High Cliff Development to harass the Defendant. Pimental further testified, and the Court finds, that the Authority attempted to assist the Defendant

in obtaining services that would have permitted her to remain at the High Cliff Development. Accordingly, the Court finds for the Plaintiff as to the Defendant’s claim for breach of the covenant of quiet enjoyment.

As to the Defendant’s claim for breach of the covenant of quiet enjoyment with respect to the alleged ant infestation, the Court finds that the Defendant has failed to present sufficient evidence of the duration and extent of the alleged infestation. Accordingly, the Court cannot find that the alleged ant infestation constituted a serious and substantial interference with the Defendant’s quiet enjoyment of the Premises. Therefore, the Court also finds for the Plaintiff on the Defendant’s counterclaim for breach of the covenant of quiet enjoyment.

ORDER FOR JUDGMENT

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

1. The Court finds for the Plaintiff on the Defendant’s breach of the implied warranty of habitability counterclaim.

2. The Court finds for the Plaintiff on the Defendant’s breach of the quiet enjoyment counterclaim.

3. The Defendant’s remaining counterclaims are Dismissed without prejudice.

————————-

[1] The Defendant married during the pendency of this action and is also known as Maria Petrelli-Newcombe.

[2] The parties indicated prior to trial that the Defendant would present a counterclaim for breach of the Lease. However, that claim was not plead, nor did either party present evidence or testimony on that claim at trial. Accordingly, the Court shall only address in this Decision the Defendant’s claims for breach of the implied warranty of habitability and the covenant of quiet enjoyment.

[3] Duhamel explained that paranoia can affect perception of reality in an individual.

End Of Decision

HOUSING COURT

Scituate Housing Authority v. Nancy Ferreira

SOUTHEASTERN DIVISION

Docket # 07-SP-07859

Parties: Scituate Housing Authority v. Nancy Ferreira

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: March 26, 2008

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

This action was initiated by the Scituate Housing Authority (the “Authority”) against Nancy Ferreira, the Defendant (“Ferreira” or “Defendant”), seeking possession of a residential unit at 50 Wheeler Park Drive in Scituate, MA, due to an alleged violation of the Lease. The Defendant filed an Answer and counterclaims alleging harassment, discrimination and constructive eviction. The Defendant appeared pro se.

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

Barbara Papile (“Papile”) testified as the Executive Director of the Scituate Housing Authority. She said that she worked in that capacity full-time for the Plaintiff and was responsible for residents’ lease compliance. She identified a lease agreement between the Plaintiff and the Defendant dated April 25, 2006 (the “Lease”) for a 1 bedroom unit at 50 Wheeler Park Drive in Scituate

(the “Premises”). Plaintiff’s Exhibit 1. She testified that the Plaintiff was bringing this action to evict the Defendant because the Defendant permitted an unauthorized person, one Thomas Martin (“Martin”), to reside at the Premises. Under the terms of the Lease, Papile testified, only one person is authorized to reside in the Premises and the maximum number of days someone may visit or stay as a guest is twenty-one days in a twelve month period.[1] She continued her testimony by stating that she saw Martin’s vehicle, a large white van, in the parking lot that serves the Premises. She further stated that she had received complaints from other residents of the housing complex concerning the van. She also stated that there had been reports of domestic violence at the Premises in August of 2006 involving the same Thomas Martin and the Defendant.

In concluding her testimony, Papile stated that she inspected the Defendant’s Premises in November 2007 as part of the regular annual inspection authorized under the Lease. She indicated in her testimony that there was evidence of an additional person living in the Premises and sleeping on a couch. She also indicated that she saw many articles of male clothing within the unit. Ms. Papile was credible in her entire testimony.

The Defendant testified and acknowledged that she is the only authorized occupant of the Premises under the terms of the Lease. She stated that she is partially disabled and does not receive home care assistance herself, but that she works part-time as a home health aide once a week. She stated that she needs assistance every two or three days with some personal care items and that Mr. Martin provides that care. According to her statement, Mr. Martin resides at the Premises twice weekly and has been doing so for the past six months. She estimates that would be approximately fifty overnight visits since August of 2007 through the date of trial. Ferreira testified that she does not use Mr. Martin’s van. The Court found the Defendant’s testimony credible.

Robert Garret, a maintenance employee for the Plaintiff assigned to the complex in which the Premises is located, testified that he has observed Martin’s van in the development’s parking lot on a daily basis, both in the morning and afternoon. He further stated that he has removed large empty meat transport boxes from the dumpsters in the complex housing the Plaintiff’s apartment. His testimony was credible.

Thomas Martin testified on behalf of the Defendant.[2] He initially stated that he lived at 1125 Commercial Street in Weymouth and paid $1,200.00 a month in rent to a Mill Realty. He was unclear in his testimony as to the name of his landlord and subsequently retracted his testimony and said that he has not lived at 1125 Commercial Street, Weymouth, for some time. He stated that he never lived at the Defendant’s Premises, and that he only stayed there one evening due to a snowstorm. He said that he did not have any belongings or clothes there and doesn’t have a bed there. He stated that his primary reason for being at the Defendant’s unit was to provide health care to her every other day, including taking out the garbage. The Court did not find his testimony credible except for his confirmation that he no longer lives in Weymouth.

He continued his testimony and indicated that he operates a meat distribution business owned by his children. He admitted that he may have used the Plaintiff’s dumpster to dispose of meat boxes and trash. He also admitted to using the Plaintiff’s parking lot for up

to five days a week to park his van overnight, when he takes the commuter rail train into Boston or when he visits a girlfriend in the neighborhood. The Court found Mr. Martin credible in this portion of his testimony.

Mr. Martin invoked his Fifth Amendment right against self-incrimination when asked questions on cross-examination concerning the alleged domestic violence incidents at the Premises in August 2007.

On October 23, 2007, the Plaintiff served and the Court expressly finds the Defendant received a Notice of Termination requiring the Defendant to vacate the Premises within thirty (30) days from receipt of the Notice due to violations of the Lease.[3] On December 21, 2007, the Plaintiff served the Summons and Complaint upon the Defendant.

A landlord may terminate a tenancy for cause when the tenant has violated the terms and conditions of the lease or occupancy agreement between the parties. See Hodess v. Bonefont, 401 Mass. 693, 695 (1988); Boston Housing Authority v. Guadarrama, Boston Housing Court Docket No. 99SP01545 (June 9, 1999)(Daher, C.J.). The burden is on the plaintiff to show the alleged lease violations by a preponderance of the evidence. Hodess, 401 Mass. at 695; Spence v. Gormley, 387 Mass. 258, 273 (1982); BromleyHeath Tenant Management Corp. v. Miller, Boston Housing Court Docket No. 95SP06534 (May 20, 1996)(Daher, C.J.). When the tenant resides in subsidized housing, the eviction must be based upon good cause reasonably related to the protection of some legitimate interest of the plaintiff, including the health, safety, and welfare of other residents. See Spence v. Gormley, 387 Mass. at 262; Spence v. Reeder, 382 Mass. 398, 420 (1981).

The Court finds that Defendant’s actions constitute a material violation of Section V(B), which provides in pertinent part: “Tenant and other household members may have guests provided that Tenant shall be responsible for the conduct of any guest while in the leased premises or on [the Authority’s] property and shall take reasonable steps to supervise the conduct of any guest, including a guest of a household member. No guest may stay overnight…for more than a total of twenty-one (21) nights in any twelve (12) month period without [the Authority’s] written approval…”. Plaintiff’s Exhibit 1. Specifically, the Defendant acknowledged, and the Court finds, that she permitted Mr. Martin to stay at the Premises for a period in excess of twenty-one (21) days in a twelve (12) month period. The Court further finds that, although the Plaintiff alleged other reasons for terminating the Defendant’s tenancy, the Plaintiff is only required to prove one of the proffered reasons by a preponderance of the evidence. See Phelan and Ghobadi v. Brown, Boston Housing Court Docket No. 04-SP-01667 (July 13, 2004)(Winik, J.).

A landlord has the right to possession pursuant to M.G.L. c. 239, s.1. The Court finds that the Plaintiff has proven its prima facie case for possession against the Defendant.

The Defendant alleged in her Answer and Counterclaim that the Plaintiff harassed, retaliated and constructively evicted her. At trial, the Defendant failed to provide any testimony or evidence in support of her defenses or counterclaims. Accordingly, the Court must find for the Plaintiff on the Defendant’s counterclaims.

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, plus costs.

2. Judgment enter for the Plaintiff on the Defendant’s counterclaims.

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

————————-

[1] Papile also testified that in January and February of 2007 the Plaintiff attempted to formalize the personal care duties between Martin and the Defendant but neither Martin nor the Defendant completed the application process with the Plaintiff that would permit Martin’s presence in the Premises as a personal care assistant. Plaintiff’s Exhibit 5

[2] The Court found Mr. Martin’s testimony throughout highly suspicious and conspicuously lacking in credibility as noted herein.

[3] In the Notice of Termination, the Authority states that the Defendant’s Lease is terminated for the following reasons: “…an illegal boarder, Thomas E. Martin, staying with you at your apartment without the prior written consent of the Scituate Housing Authority for more than 21 nights in a calendar year. It is alleged on August 7, 2007, Mr. Martin was arrested on our property on the charges of domestic assault and battery against you. It is alleged in the police report that Mr. Martin threatened to kill you. It is alleged that Mr. Martin has been seen by residents and staff using our dumpster to dispose of trash and cardboard boxes from his meat vending business, which results in extra trash pick up charges to the Scituate Housing Authority.”

End Of Decision

HOUSING COURT

Noel Tracy and Michael Tracy v. Norve Properties, LLC and Lawrence E. Norve, Jr.

SOUTHEASTERN DIVISION

Docket # 04-CV-01109

Parties: Noel Tracy and Michael Tracy v. Norve Properties, LLC and Lawrence E. Norve, Jr.

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: March 19, 2008

MEMORANDUM OF DECISION ON PLAINTIFFS’ M.G.L. c. 93A CLAIM

This civil action was initiated by the Plaintiffs for damages arising from the rental of an apartment unit located at 174 Pleasant Street in Hanson, MA. (the “Premises”). The Plaintiffs allege that the Defendants breached the covenant of quiet enjoyment and the implied warranty of habitability as to the presence and removal of lead paint in the Premises. The Plaintiffs further alleged that the Defendants retaliated against them, were negligent, failed to comply with the security deposit statute, violated the provisions of M.G.L. c. 93A as promulgated pursuant to regulations issued by the Attorney General and, finally, caused the Plaintiffs to suffer emotional distress. The Defendants denied the allegations and counterclaimed for rental arrearages and damage to the Premises.

The Court conducted a two-day jury trial on November 13th and 14th, 2007. The Court retained the Plaintiffs’ M.G.L. c. 93A count against the Defendants for a separate ruling. On Defendant’s Motion for Directed Verdict, the Court found for the Defendants on the Plaintiffs’ security deposit, negligence and emotional distress claims. After deliberation, the jury found for the Defendants on the Plaintiffs’ implied warranty of habitability, breach of quiet enjoyment and retaliation claims. The jury further awarded the Defendants unpaid rent in the amount of $4,125.00 and damages to the Premises in the amount of $1,065.00. The Court will now rule on the Plaintiffs’ remaining M.G.L. c. 93A claim.

When considering the merits of a claim pursuant to M.G.L. c. 93A, many courts hold that a jury verdict in favor of the Defendant on the claims underlying the M.G.L. c. 93A claim extinguishes the M.G.L. c. 93A claim. See Cytologix Corp. v. Ventana Medical Systems, Inc., 2006 WL 2042331 at *2 (D. Mass., 2006)(allowing the Defendant’s Motion for Summary Judgment as to the Plaintiff’s M.G.L. c. 93A claim “because the underlying claims…were extinguished by virtue of the jury’s verdict and a 93A claim must fail where the underlying claims fail”); Pimental v. Wachovia Mortgage Corp., 411 F.Supp.2d 32, 40 (D. Mass. 2006)(allowing the Defendant’s Motion to Dismiss because the Plaintiff “…failed to allege sustainable breach of contract or negligence claims, and the Chapter 93A claim is based upon the previous two claims; [therefore], there is no basis for finding [the Defendant] liable under Chapter 93A”); Sanchez v. Witham, 2003 WL 1880131 at *2 (Mass.App.Div. 2003)(stating that the judge may proceed to hear the Plaintiff’s M.G.L. c. 93A claim only if the jury first resolves the underlying claim in the Plaintiff’s favor). Some courts, however, find that a judge is not bound by the findings of the jury. See Wallace Motor Sales, Inc. v. American Motor Sales Corp., 780 F.2d 1049, 1063 (1st Cir., 1985); PolyCarbon Industries, Inc. v. Advantage Engineering, Inc., 260 F.Supp.2d 296, 304 (D. Mass., 2003); Poly v. Moylan, 423 Mass. 141, 151 (1996); Wyler v. Bonnell, 35 Mass.App.Ct. 563, 568 (1994). “A judge may make independent and, therefore, different, findings on the c. 93A aspect of a case that arises from the same facts which gave rise to parallel common law claims.” Poly, 423 Mass. at 151, citing Wyler, 35 Mass. App. Ct. at 568.

This Court finds that the jury’s verdict in this case, based upon the testimony and evidence presented to it as to the Defendants’ alleged breach of quiet enjoyment and the implied warranty of habitability claims, extinguished the Plaintiffs’ M.G.L. c. 93A claim. As discussed below, the Court therefore finds for the Defendants as to the Plaintiffs’ M.G.L. c. 93A claim. The factual basis of the Plaintiffs’ quiet enjoyment, implied warranty of habitability, and M.G.L. c. 93A claims related to the Defendants’ alleged failure to: 1) disclose the presence of lead at the Premises in July 2002, when the Plaintiffs and their minor children initially moved into the Premises; 2) commence lead paint removal at the

Premises in a timely manner; and 3) relocate the Plaintiffs during the lead paint removal process between the months of August 2003 and February 2004. The jury found that the Defendants did not breach either the covenant of quiet enjoyment or the implied warranty of habitability. Accordingly, as the underlying claims have been resolved in favor of the Defendants, the Court finds that no set of facts exists by which the Defendants could be held liable under M.G.L. c. 93A. The Court therefore finds for the Defendants on the Plaintiffs’ claims pursuant to M.G.L. c. 93A, nunc pro tunc to November 14, 2007.

SO ORDERED.

End Of Decision

HOUSING COURT

Carol Gurner and Alan Gurner[1], PLAINTIFFS v. Jerry Martin and April Franklin, DEFENDANTS

SOUTHEASTERN DIVISION

Docket # Docket No. 08-SP-01196

Parties: Carol Gurner and Alan Gurner[1], PLAINTIFFS v. Jerry Martin and April Franklin, DEFENDANTS

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: May 23, 2008

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

This summary process action was brought by the Plaintiffs, Carol Gurner and Alan Gurner[2], against the Defendants, Jerry Martin (“Martin”) and April Franklin (“Franklin”), for possession and damages for unpaid rent in the amount of $850.00. The Defendant filed an Answer and Counterclaim alleging that the Plaintiff breached the implied warranty of habitability. Both parties appeared pro se.

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

Plaintiff’s Rent Claim

Plaintiff Carol Gurner testified that she and her husband own the three-bedroom single family home at 2347 Cranberry Highway (the “Premises”) in Wareham, MA. She stated that the Defendants moved in to the Premises in November 2006. The Plaintiff testified that the weekly rent was $200.00, due each Saturday, and that she did not collect a security deposit or last month’s rent from the Defendants. Gurner testified that, at the time of trial, the Defendants owed $1,450.00. Plaintiffs’ Exhibit 1. She was credible in her testimony.

On March 5, 2008, the Plaintiffs served the Defendants with a 14 Day Notice to Quit for nonpayment of rent, alleging rent due in the amount of $400.00. Plaintiff’s Exhibit 2. On March 24, 2008, the Plaintiffs served the Defendants with a Summons and Complaint with an Account Annexed of $850.00, calculated as follows: $200.00 unpaid rent for February 16, 2008; $200.00 unpaid rent for February 23, 2008; $200.00 unpaid rent for March 1, 2008; payment of $350.00 on March 7, 2008; $200.00 unpaid rent for March 8, 2008; and $200.00 unpaid rent for March 15, 2008, for total rent due in the amount of $650.00.[3]

The Defendant April Franklin testified that on March 7, 2008, she tendered $350.00 in cash to Carol Gurner, and that Ms. Gurner accepted that payment. Franklin further testified that she tendered $400.00 to the Plaintiff on March 16, 2008, but that Ms. Gurner refused to accept the payment.[4] Franklin stated that she and Martin always paid the rent in cash but never received a receipt from the Plaintiffs. She was credible in her testimony.

A landlord has the right to possession pursuant to M.G.L. c. 239, s.1. The Court finds that the Plaintiffs have proven their

prima facie case for possession and damages against the Defendants for unpaid rent in the amount of $1,450.00, plus costs, calculated as follows: $200.00 unpaid rent for February 16, 2008; $200.00 unpaid rent for February 23, 2008; $200.00 unpaid rent for March 1, 2008; payment of $350.00 on March 7, 2008; $200.00 unpaid rent for March 8, 2008; $200.00 unpaid rent for March 15, 2008; $200.00 unpaid rent for March 22, 2008; $200.00 unpaid rent for March 29, 2008; $200.00 unpaid rent for April 5, 2008; and $200.00 unpaid rent for April 12, 2008 for total rent due in the amount of $1,450.00. The Defendants presented their defenses and counterclaim.

Defendant’s Implied Warranty of Habitability Counterclaim

Ms. Franklin testified that the furnace at the Premises stopped working on October 31, 2007. She stated that she called Carol Gurner approximately two weeks later, in mid-November 2007, to report the problem, and that she spoke to Alan Gurner in late November 2007 regarding the problem with the furnace. Franklin further testified that she reminded the Plaintiffs of the problem after Thanksgiving 2007, but that no repairs had been made. The Court did not find her testimony credible as to notice to the Plaintiffs. The Defendant stated that she heated the Premises with electric space heaters and incurred additional electricity charges as a result. She concluded her testimony by stating that she did not report the problems with the furnace to the Board of Health or any other municipal authorities. The Court finds her testimony credible on the issue of

heating with space heaters and lack of notification to municipal authorities.

The Plaintiff Carol Gurner testified that the Defendants failed to notify either her or her husband Alan Gurner of the problems with the furnace, and that she first learned of the problem when she received the Defendants’ Answer and Counterclaim. The Court found her credible on this issue.

The Court finds that the Plaintiffs did not have actual or constructive knowledge of the alleged problems with the furnace until they received the Defendants’ Answer and Counterclaim on April 7, 2008.[5] Further, there was no testimony from either party as to whether the furnace had been repaired prior to the trial. Accordingly, the Court finds for the Defendants on their counterclaim for breach of the implied warranty of habitability for a lack of a working furnace in the Premises in the amount of $227.92, calculated as follows: $28.49/day[6] x 100% = $28.49 x 8 days[7] = $227.92.

The Court further finds that, as the Plaintiffs were not notified of the problem with the furnace prior to the time the Defendants were in arrears in their rent, they are not entitled to a defense to possession.

The Plaintiffs shall make all necessary repairs to the furnace within ten (10) days from the date that judgment enters in this case. All work is to be done with appropriate permits at the Plaintiffs’ sole expense and shall be completed in a good and workmanlike manner as set forth herein. Abrams v. Factory Mutual Liability Insurance Company, 298 Mass. 141, 143 (1937); Mass. Highway Dep’t v. Walsh Constr. Co., No. 015746BLS (Mass.Super.Ct. 2003).

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 and unpaid rent in the amount of $1,450.00, plus costs in the amount of $185.00, a total of $1,635.00.

2. Judgment enter for the Defendants on their implied warranty of habitability counterclaim in the amount of $227.92.

3. The foregoing order for judgment paragraphs 1 and 2 result in a net judgment for the Plaintiffs in the amount of $1,407.08.

4. The Plaintiffs shall make all necessary repairs to the furnace within ten (10) days from the date that judgment enters.

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

SOUTHEASTERN DIVISION

Docket No. 08-SP-01196

Carol Gurner and Alan Gurner

Plaintiffs

vs.

Jerry Martin and April Franklin

Defendants

JUDGMENT

Judgment for the Plaintiffs for possession, unpaid rent of $1,450.00 plus costs of $185.00, for a total of $1,635.00.

Judgment for the Defendants on their counterclaim for breach of the implied warranty of habitability, in the sum of $227.92, resulting in a net judgment to Plaintiffs of $1,407.08 as further provided in paragraph 3 of the Court’s Order for Judgment.

The Plaintiffs shall otherwise timely comply with the furnace repair provisions contained in paragraph 4 of the Court’s Order for Judgment.

Accordingly, judgment enters at 10:00 a.m. this 27th day of May 2008.

MARK R. JEFFRIES

CLERK MAGISTRATE

Carol Gurner

33 Union Avenue

Onset, MA 02558

Alan Gurner

33 Union Avenue

Onset, MA 02558

Jerry Martin

2347 Cranberry Highway

W. Wareham, MA 02576

April Franklin

2347 Cranberry Highway

W. Wareham, MA 02576

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[1] The Court allowed the Plaintiff’s motion to add Alan Gurner as a co-Plaintiff at trial without opposition from the Defendants.

[2] Although Alan Gurner did not appear at the trial, Carol Gurner represented to the Court that she could speak for him. The Defendants voiced no objection and the trial proceeded.

[3] The Court notes that in the Summons and Complaint the Plaintiffs state that the Defendants owe $850.00 in back rent. The amounts itemized in the Account Annexed, however, total $650.00 unpaid rent for the period of February 16, 2008

through March 15, 2008.

[4] The Court finds that Franklin’s attempt to cure the Notice to Quit was not timely, as she did not tender the full rent due within ten (10) days of receipt of the Notice to Quit.

[5] Although neither party testified to when the Plaintiffs received the Defendants’ Answer and Counterclaim, the Court will infer that the Plaintiffs received it on the day the Defendants filed the Answer and Counterclaim with the Court.

[6] The per diem rental rate is calculated as follows: $200.00 per week x 52 weeks = $10,400.00 ? 365 days = $28.49/day.

[7] The period of April 7, 2008, the date the Plaintiffs were first notified of the problems with the furnace, through April 14, 2008, the date of trial, consists of 8 days.

End Of Decision

HOUSING COURT

Wayne McDonald, PLAINTIFF v. David Chaisson and Cathy Morgan, DEFENDANTS

SOUTHEASTERN DIVISION

Docket # Docket No. 07-SP-07747

Parties: Wayne McDonald, PLAINTIFF v. David Chaisson and Cathy Morgan, DEFENDANTS

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: May 19, 2008

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

This summary process action was brought by the Plaintiff, Wayne McDonald (“McDonald”), against the Defendants, David Chaisson (“Chaisson”) and Cathy Morgan (“Morgan”)[1], for possession and damages for unpaid rent in the amount of $13,000.00. The Defendants filed an Answer and counterclaims alleging that the Plaintiff breached the implied warranty of habitability and the covenant of quiet enjoyment, and, further, that the Plaintiff retaliated against the Defendants, failed to pay interest on a security deposit in violation of M.G.L. c. 186, s.15B, and caused damage to their personal property. The Defendants also alleged that the breach of the implied warranty of habitability violated M.G.L. c. 93A. On January 18, 2008 the Defendants vacated the Premises by agreement of the parties and possession is therefore moot.[2] The Plaintiff was represented by counsel; the Defendants appeared pro se.

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

Plaintiff’s Claim for Rent

Plaintiff Wayne McDonald testified that he is the owner of a single family home at 111 Glen Street in Whitman, MA (the “Premises”) purchased in May of 2004. The Premises was rented to the Defendants, David Chaisson and Cathy Morgan, as tenants at will at the rate of $1,300.00 per month. The tenancy commenced in December 2004, with the rent due on the fifteenth day of each month. McDonald testified that the Defendants had last paid rent on February 15, 2007. He testified that he served the Defendants with a Fourteen Day Notice to Quit on November 29, 2007, at which time they owed nine months of rent in the amount of $11,700.00. Plaintiff’s Exhibit 5. The Court finds his testimony credible.

The Plaintiff served a Fourteen Day Notice to Quit upon the Defendants on November 29, 2007. Plaintiff’s Exhibit 5. On December 17, 2007, the Plaintiff served a Summons and Complaint on the Defendant with an Account Annexed of $13,000.00.

The Court finds that the Plaintiff has proven his prima facie case for damages against the Defendant for unpaid rent in the amount of $14,300.00, plus costs, calculated at the rate of $1,300.00 per month for the period of March 15, 2007 through February 14, 2008.[3]

Defendants’ Counterclaims

Defendant Cathy Morgan testified to heating problems in the Premises, including lack of heat at the commencement of the tenancy in the downstairs portion of the house. She testified that initially the house had two heating zones that were combined into one. She stated that the floor in the house got wet from rain entering from the front. Additionally, Morgan testified that tiles were peeling from the floor and cracking. She also testified that there were no gutters on the roof.

Morgan testified that the sliding glass door in the kitchen had no screen, and that the wood frame around the sliding glass door was rotted, particularly near the floor. Further, she stated that rain and snow entered the Premises in the space around the sides of the door and that the door would freeze shut. She testified that the door was blocked by plastic that impeded access, and that an exterior flood light was loose from a wall.

Ms. Morgan testified that she gave a list of these conditions to the Plaintiff’s father. She stated that the father caulked the

bathtub, but that the other repairs on the list were not completed. She identified numerous problems in the bathroom, including continuing leaks around the bathtub, mold in the bathtub, the lack of vents in the bathroom, and missing tiles around the toilet. She further stated that bugs were able to crawl up through holes in the floor.

She testified that her daughter, Amanda, injured herself when she fell through a broken or rotten floorboard in the house. She also testified that the ceiling in Amanda’s bedroom partially collapsed. She stated that she and her daughter moved out of the Premises on or about November 1, 2007 to an apartment at 611 Beuler Street in Whitman, and that co-Defendant Chaisson moved there on November 14, 2007. She acknowledged that she did not tell the Plaintiff that they had moved to a new unit. As of the commencement date of trial, she and the co-Defendant David Chaisson now live at 611 Beuler Street in Whitman, MA.

She testified that on November 13, 2007, she saw a Joseph Farlizzi and a Marlene Carter at the Premises and the front door was open. As a result of her observations, she called the police. She testified that a painting left on the wall at the house when she vacated was missing. She identified a photo of the front door with damage to or around the doorknob. Defendant’s Exhibit A. She was credible in her testimony.

Defendant David Chaisson testified that a problem with the furnace at the Premises developed two days after he initially occupied the residence. He acknowledged that he did not report the heating problem to the Whitman Board of Health. He described the repair work to the bathroom floor completed by the Plaintiff as inadequate, stating that the Plaintiff used incorrect screws and that there was a lack of correct support for some of the work. He confirmed the testimony of Morgan that Amanda was injured as a result of rotten floorboards and that Amanda had vacated the Premises at the end of 2006. He testified that this incident had caused great strains between he and Ms. Morgan and they were going to split up over the problems with the house.

Mr. Chaisson testified to floor rot on one of the thresholds leading into the house, along with a hole in the floor where Amanda was injured. Defendants’ Exhibits B and C.

Mr. Chaisson testified that he didn’t have a receipt for the security deposit he paid when he initially occupied the Premises. He was credible in his testimony.

James Badger (“Badger”) of the Town of Whitman Board of Health testified that he inspected the Premises on March 22, 2007, pursuant to a request by Chaisson on March 17, 2007. He testified that the outer storm door was unstable and that the flooring near the front of the Premises was rotted and sinking in. He stated that the tile flooring around the front exit was unsafe. Badger went on to say that he inspected each room in the house, finding problems with the bathroom wall and that the bathroom had sloping floors. He testified that the kitchen sink leaked and there was some water damage on the bottom of the sink cabinet. On the exterior of the house, Badger stated that the gutter drainage system leaked into the kitchen and was in need of repair. He indicated that there were no conditions at the Premises that seriously endangered the Defendants’ health, but he

called the Building Inspector to coordinate a joint view of the Premises.

Badger and the Plaintiff returned to the Building with Bob Curran, the Building Inspector for the Town of Whitman. Badger testified that the Plaintiff was very cooperative and responded to the conditions that required repair. Further, it was his understanding that the Defendants would be vacating the Premises in the near future and therefore the only repairs that were immediately required were to the front egress, along with the bathroom, the bathtub, and the kitchen sink. He identified Plaintiff’s Exhibit 2 as the Town of Whitman Board of Health inspection report dated April 5, 2007. The parties stipulated that the temporary repairs were completed on April 21, 2007, although Badger testified that the repair to the kitchen sink was not completed on April 21, 2007. Mr. Badger was credible in his testimony.

Plaintiff McDonald testified that he owns several rental properties. He described the Premises prior to the commencement of the Defendants’ tenancy in November 2004 and testified that he invested approximately $20,000.00 in improvements to the Premises, including renovations to the kitchen, a new roof and shingles, and new carpet. He further stated that he installed new windows throughout the Premises, a new vanity, toilet, and mirror in the bathroom. McDonald identified photos that he took in September and October of 2004 of the Premises. Plaintiff’s Exhibits 3A-T.

McDonald continued his testimony by stating that for a period of approximately forty days between late September and early November in 2007 he went by the Premises at least twice a day, including evenings, and noticed that there were no lights on. He thought the Premises were abandoned on November 13, 2007 so he sent his handyman, Joseph Farlizzi, to secure the Premises. He testified that he intended to sell the Premises. He was credible in his testimony.

Patrise Haggerty (“Haggerty”) testified on behalf of the Plaintiff. She stated that she is a real estate broker and that the Plaintiff is a client of hers. She confirmed that her office had been involved with the purchase of the property by McDonald in May of 2004 and, therefore she was familiar with the Premises. She testified that the Premises at that time had been almost completely renovated, including all new flooring, new paint in the kitchen, and new landscaping. After the renovation in 2004, Ms. Haggerty testified that McDonald had listed the property to sell through her real estate company, Bearmeadow Real Estate, but that he subsequently decided to rent the property. Her company was not involved with the rental to the Defendants.

She went on to state that McDonald retained her firm to attempt to sell the Premises in November of 2007. She testified that her office attempted to reach the Defendants in order to arrange a viewing of the Premises but that neither she nor her agents had been able to gain access to the Premises. She was credible in her testimony.

Joseph Farlizzi (“Farlizzi”), a handyman for the Plaintiff, testified that he completes minor repairs and carpentry jobs for McDonald at various properties, including the Premises. He indicated that he installed aluminum flashing on the Premises in 2007 at Plaintiff’s request along with securing a wobbly toilet and a small

job at the side entrance of the Premises.

Farlizzi stated that on November 13, 2007, he was asked by the Plaintiff to secure the Premises. He said that upon his arrival at the Premises, he checked the doors to see if they were locked. He entered the Premises through a window and observed that dog feces along with other items of personal property were left in the Premises. He started to put a hasp on the door in order to secure it when the Defendant Chaisson arrived, followed by the police. He testified that the Defendant yelled at him with obscenities. He was credible in his testimony.

Breach of the Implied Warranty of Habitability

The implied warranty of habitability is the landlord’s promise that the premises will meet certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the tenant is in material violation of the minimum standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). A landlord must have actual or constructive notice of the condition creating the violation. McKenna v. Begin, 3 Mass.App.Ct. 168 (1975). Damages are assessed from the date the landlord had notice of the condition of disrepair. Berman & Sons v. Jefferson, 379 Mass. 196 (1979). The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises as warranted and the fair rental value of the premises with the defects. McKenna v. Begin, supra at 172.

The Court finds that there were numerous adverse conditions at the Premises during the Defendants’ tenancy. The Court expressly finds from testimony it found credible that the Plaintiff first had actual notice of the conditions in the Premises through the Town of Whitman Board of Health Report dated April 5, 2007and his subsequent inspections while accompanying town officials. That report reflects the following adverse conditions at the Premises: floor near the front exit rotting and sinking; no screen door; deteriorating foundation under the kitchen; lack of gutters; leaky kitchen sink; exposed dry wall at the edge of the kitchen ceiling; water leaking into the kitchen through the sliding doors; bedroom ceiling falling down; and sinking of the bathroom floor due to over saturation. Plaintiff’s Exhibit 2. The parties stipulated, and the Court finds, that the repairs were completed by April 21, 2007 except for incomplete repairs to the kitchen sink. Accordingly, the Court finds that the Defendants are entitled to a rent abatement of thirty per cent (30%) for the period of April 5, 2007, the date of the Board of Health inspection report, through April 21, 2007, the date the majority of the repairs were completed. The Court further finds that the Defendants are entitled to a rent abatement of five per cent (5%) for the period of April 22, 2007 through the first day of trial on January 18, 2008, when the keys to the Premises were turned over to the Plaintiff, for the incomplete repairs to the kitchen sink. The Defendants are therefore entitled to a rent abatement in the amount of $800.02, calculated as follows: ($42.74/day[4] x 30% = $12.82 x 17 days[5] = $217.94) + ($42.74/day x 5% = $2.14 x 272 days[6] = $582.08) = $800.02.

Breach of the Covenant of Quiet Enjoyment

M.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…” A landlord violates M.G.L. c. 186, s.14 where he had notice, or reason to know of the serious condition in the tenant’s apartment, and failed to take appropriate corrective measures. Al Ziab v. Mourgis, 424 Mass. 847, 850-851 (1997); Cruz Management Co., Inc. v. Thomas, 417 Mass. 782 (1994).

In calculating the damages due the Defendants for Plaintiff’s breach of the covenant of quiet enjoyment, the Court must under M.G.L. c. 186, s.14 compare the Defendants’ actual damages versus the statutory damages permitted under the statute.[7] The Defendants presented no evidence of actual damages. Therefore, the Defendants are entitled to statutory damages of $3,900.00 computed by trebling the monthly rent of $1,300.00. As computed pursuant to the statute, the Court must award the greater amount to the Defendants for their damages; accordingly, the Court finds in favor of the Defendants for the Plaintiff’s breach of quiet enjoyment in the amount of $3,900.00.

A litigant is not entitled to duplicate recoveries on separate legal theories for the same factual wrongs and injuries. A party who prevails on more than one cause of action is entitled to recover upon whichever legal theory yields the greater award. Darmetko v. Boston Housing Authority, 378 Mass. 758, 762 (1979); Leardi v. Brown, 394 Mass. 151, 157 (1985). The Plaintiff’s violations of M.G.L. c. 186, s.14 and for the breach of the implied warranty of habitability for the problems with the kitchen sink arise from the same facts and involve the same damages. The Court will award damages to the Defendants under the quiet enjoyment claim as those damages provide the greater recovery to the Defendants, and will adjust the award of damages for breach of the implied warranty of habitability by subtracting the sum of $582.08.[8] This results in a net award for breach of the implied warranty of habitability in the amount of $217.94. The Court finds that the Defendants are entitled to statutory damages of $3,900.00 for the Plaintiff’s breach of M.G.L. c. 186, s.14. The Court finds no evidence that the Plaintiff breached the covenant of quiet enjoyment on November 13, 2007 as a result of his handyman’s inspection of the Premises, which appeared to be abandoned. The Court finds that on November 13, 2007, the

Plaintiff through his agents only intended to determine if the Premises had, in fact, been abandoned by the Defendants and that his agents immediately left the Premises when advised by the Defendants and the Whitman police.

Retaliation

M.G.L. c. 186, s.18 sets forth in pertinent part a right of action for a tenant as to retaliation by a landlord: “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 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 tenants engaging in, or the belief that tenants had engaged in, activities protected under this section.” M.G.L. c. 186, s.18.

The Court finds that, on November 29, 2007, the Plaintiff served the Defendants with a legally sufficient Fourteen Day Notice To Quit for nonpayment of rent. Plaintiff’s Exhibit 5. The Court finds that the Defendants first reported the adverse conditions at the Premises on March 17, 2007. Accordingly, the Court finds that the Defendants did not engage in statutorily protected activity within six (6) months of the service of the Fourteen Day Notice To Quit and therefore are not entitled to the statutory presumption of retaliation.

The Court further finds, on the facts of this case, that the Plaintiff has established with clear and convincing evidence that he did not retaliate against the Defendants. The Court finds that the Plaintiff’s sole reason for serving the Fourteen Day Notice To Quit was to terminate the at-will tenancy because the Defendants had not paid rent for several months. The Court finds that the Plaintiff 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 complained about conditions in the Premises. Accordingly, the Defendants are not entitled to damages under M.G.L. c. 186, s.18.

Security Deposit Counterclaim

The Defendants assert that the Plaintiff collected a security deposit from them but failed to provide them with a receipt for the security deposit or pay interest on the security deposit. M.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.”

There was no testimony in this case from either party that the Defendants had, in fact, paid a security deposit to the Plaintiff.[9] Further, the Defendants failed to present any documentation or other evidence to support their contention that they paid a security deposit. Therefore, the Court must find for the Plaintiff on the Defendants’ claims for breach of M.G.L. c. 186, s.15B.

Damage to Personal Property

The Defendants allege that the adverse conditions at the Premises damaged their personal property. The Defendants therefore seek reimbursement from the Plaintiff for the damage to their personal property. The Court finds, however, that the Defendants failed to present sufficient evidence or testimony as to the specific items that were damaged, nor did the Defendants present evidence or testimony as to the value of the items that were allegedly damaged. Accordingly, the Court must find for the Plaintiff on the Defendants’ claim for damage to personal property.

M.G.L. c. 93A Counterclaim

The Defendants have alleged that the Plaintiff has violated certain provisions of M.G.L. c. 93A and the regulations of the Attorney General’s Office related thereto. M.G.L. c. 93A(2)(a) states that “Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby

declared unlawful.” Subsection (2)(c) states that “The attorney general may make rules and regulations interpreting the provisions of subsection 2(a) of this chapter…”

Pursuant to the Attorney General’s Consumer Protection Regulations codified at 940 CMR 3.17(1): “It shall be an unfair or deceptive practice for an owner to:…(b) fail, during the terms of the tenancy, after notice is provided in accordance with M.G.L. c. 111, s.127L, to…remedy a violation of law in a dwelling unit which may endanger the health, safety, or well-being of the occupant, or…maintain the dwelling unit in a condition fit for human habitation…[or] (i) 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 is subject to M.G.L. c. 93A, as he acknowledged and the Court finds that he owns several rental properties. The Court further finds that he has violated 940 CMR 3.17 in that he failed to make timely repairs to the leaky kitchen sink at the Premises. Accordingly, the Court finds that the Plaintiff is subject to statutory damages of $25.00. The Court therefore awards the Defendants $25.00 for the violation of M.G.L. 93A and the Attorney General’s Regulations at 940 CMR 3.17(1)(b) and (i).

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 the Defendants in the amount of $14,300.00 for damages for unpaid rent, plus costs.

2. Judgment enter for the Defendants on their counterclaim for breach of the implied warranty of habitability in the amount of $217.94.

3. Judgment enter for the Defendants on their counterclaim for breach of the covenant of quiet enjoyment pursuant to M.G.L. c. 186, s.14 in the amount of $3,900.00.

4. Judgment enter for the Plaintiff on the Defendants’ retaliation counterclaim

5. Judgment enter for the Plaintiff on the Defendants’ counterclaim for breach of M.G.L. c. 186, s.15B.

6. Judgment enter for the Plaintiff on the Defendants’ counterclaim for damage to their personal property.

7. Judgment enter for the Defendants on their counterclaim pursuant to M.G.L. c. 93A in the amount of $25.00.

8. The foregoing orders for judgment paragraphs 1 through 7 result in a net judgment for damages for the Plaintiff in the amount of $10,157.06, plus costs.

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

SOUTHEASTERN DIVISION

Docket No. 07-SP-07747

Wayne McDonald

Plaintiff

vs.

David Chaisson and Cathy Morgan

Defendants

JUDGMENT

Judgment for the Plaintiff for unpaid rent in the sum of $14,300.00, plus costs.

Judgment for the Defendants for combined counterclaim damages in the sum of $4,142.94; resulting in a net judgment to Plaintiff of $10,157.06 plus costs, as is more specifically set forth in paragraphs 2, 3, 7 and 8 of the Court’s Order for Judgment.

Judgment for the Plaintiff as to the remainder of Defendant’s counterclaim issues, as more specifically set forth in paragraphs 4, 5 and 6 of the Court’s Order for Judgment.

Accordingly, judgment enters at 10:00 a.m. this 20th day of May 2008.

MARK R. JEFFRIES

CLERK MAGISTRATE

Ronald Neil Whitney, Esq.

549 Bedford Street

Whitman, MA 02382

David Chaisson

164 Beulah Street

Whitman, MA 02382

Cathy Morgan

164 Beulah Street

Whitman, MA 02382

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[1] The Plaintiff Wayne McDonald and Defendant David Chaisson previously appeared before the Court in #07-SP-05184, Wayne McDonald v. David Chaisson. The case involved the same Premises at 111 Glen Street in Whitman, MA. That case was dismissed without prejudice on procedural grounds on August 3, 2007. Defendant Cathy Morgan was not a party.

[2] The trial continued on two additional days, February 6 and February 8, 2008.

[3] Although Morgan testified that the Defendants vacated the Premises no later than November 14, 2007, the Court finds that the Defendants are responsible for the rent due November 15, 2007, December 15, 2007, and January 15, 2008, as they remained in possession of the Premises until Morgan returned the keys to the Plaintiff at the trial on January 18, 2008. See Weathers v. Edwards, Southeast Housing Court Docket No. 05-SP-04926 (Mar. 14, 2005)(Chaplin, F.J.).

[4] The per diem rental rate is calculated as follows: $1,300.00 per month x 12 months = $15,600.00 ? 365 days = $42.74/day.

[5] The period of April 5, 2007 through April 21, 2007 consists of 17 days.

[6] The period of April 22, 2007 through January 18, 2008 consists of 272 days.

[7] M.G.L. c. 186, s.14 in relevant part: “Any person who commits any act in violation of this section shall also 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.”

[8] This adjustment is calculated by excluding from recovery under the implied warranty of habitability the rent abatement of $582.08 for the incomplete repairs to the kitchen sink.

[9] The Defendant testified that he did not receive a receipt from the Plaintiff regarding the location of his security deposit, but he failed to indicate when he allegedly paid the security deposit, or the amount of the security deposit.

End Of Decision

HOUSING COURT

Faina Schwartz and Igor Schwartz, PLAINTIFFS v. Darlene Newton and Krista Newton, DEFENDANTS

SOUTHEASTERN DIVISION

Docket # Docket No. 08-SP-00816

Parties: Faina Schwartz and Igor Schwartz, PLAINTIFFS v. Darlene Newton and Krista Newton, DEFENDANTS

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: May 20, 2008

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

This summary process action was brought by the Plaintiffs, Faina and Igor Schwartz, against the Defendants, Darlene and Krista Newton[1], for possession of the Premises. The Defendants filed an Answer and Counterclaims, alleging retaliation, breach of the implied warranty of habitability and the covenant of quiet enjoyment, and intentional infliction of emotional distress. Both parties appeared pro se.

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

The Plaintiff Faina Schwartz testified that the Defendants reside at 25 Saddle Ridge Road in Mansfield, MA (the “Premises”). The Defendants’ rent is subsidized by the Mansfield Housing Authority. Pursuant to the Housing Assistance Payments Contract Amendment Notice dated July 19, 2007, the monthly contract rent for the Premises is $1,425.00, and the Defendants’ portion of the monthly rent is $611.00. Defendant’s Exhibit A. Ms. Schwartz testified that the Defendant Darlene Newton was served with a Thirty-Day Notice to Quit on November 20, 2007, Plaintiff’s Exhibit 1, and a Summons and Complaint on January 9, 2008. The Plaintiff testified that the Mansfield Housing Authority was not served with either the Notice to

Quit or the Summons and Complaint. She was credible in her testimony.

Paragraph 8(f)(2) of the Addendum to the Housing Assistance Payments Contract (the “HAP Contract”) provides: “The owner must give the [Mansfield Housing Authority] a copy of any owner eviction notice at the same time the owner notifies the tenant.” Defendant’s Exhibit I. The Plaintiffs acknowledged that they did not provide the Mansfield Housing Authority with a copy of the Notice to Quit served on the Defendant Darlene Newton. Accordingly, as the Plaintiffs did not comply with the notice requirements of Paragraph 8(f)(2) of the Addendum to the HAP Contract, the Court must find for the Defendants on the Plaintiffs’ claim for possession. The Defendants’ counterclaims are DISMISSED without prejudice.

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 as to the Plaintiffs’ claim for possession.

2. The Defendants’ counterclaims are DISMISSED without prejudice.

SOUTHEASTERN DIVISION

Docket No. 08-SP-00816

Faina Schwartz and Igor Schwartz

Plaintiffs

vs.

Darlene Newton and Krista Newton

Defendants

JUDGMENT

Judgment for the Defendants as to the Plaintiffs’ claim for possession.

The Defendants’ counterclaims are herein DISMISSED, without prejudice.

Accordingly, judgment enters at 10:00 a.m. this 21st day of May 2008

MARK R. JEFFRIES

CLERK MAGISTRATE

Faina Schwartz

100 Lakeview Ave

Mansfield, MA 02048

Igor Schwartz

100 Lakeview Ave

Mansfield, MA 02048

Darlene Newton

25 Saddle Ridge Rd

Mansfield, MA 02048

Krista Newton

25 Saddle Ridge Rd

Mansfield, MA 02048

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[1] Both the co-Plaintiff Igor Schwartz and the co-Defendant Krista Newton were added to the case by motion on the day of the trial.

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/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: April 16, 2008

MEMORANDUM OF DECISION ON DEFENDANT’S MOTION TO WAIVE APPEAL BOND

After hearing on the Defendant’s Motion to Waive Appeal Bond, the Court rules as follows: The Court finds that the Defendant is indigent within the meaning of M.G.L. c. 261, s.27A. However, the Court finds that the Defendant does not have a non-frivolous defense to this action within the meaning of M.G.L. c. 239, s.5. In its Findings of Fact, Rulings of Law and Order for Judgment dated March 28, 2008, the Court, Chaplin, J, found for the Plaintiff on his claim for unpaid rent in the sum of $3,200.00 plus costs in the amount of $165.00 and as to the Defendant’s counterclaim issues under M.G.L. c. 239, s.2A and Chapter 186, s.18. The Court found in favor of the Defendant on her counterclaim for breach of the implied warranty of habitability and awarded her $1,244.54 in damages, resulting in a net judgment to the Plaintiff of $1,955.46 plus costs of $165.00. The Defendant was also awarded possession of the Premises contingent upon her timely compliance with payment provisions as set forth in paragraph 5 of the Court’s Order for Judgment.

The Defendant at the hearing and in her motion has failed to

set forth any grounds for her appeal that are non-frivolous. Therefore, the amount of the appeal bond is hereby set at $2,120.46, inclusive of costs, to be deposited with the Court within seven (7) days of the date of this Decision.[1]

As a further condition of the appeal, the Defendant shall pay use and occupancy to the Plaintiff on the first day of each month while the appeal is pending, in the amount of $800.00 per month, beginning May 1, 2008.

The Defendant’s Motion to Waive Appeal Bond is therefore DENIED.

Douglas Ducharme

562 Elm Street

Dartmouth, MA 02748

Shelly Harrison

20 Covell Street

2nd Floor

New Bedford, MA 02745

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[1] M.G.L. c. 239, s.5 provides, in pertinent part: “…In an appeal from a judgment of the superior court or a housing court such bond filed shall be conditioned to enter the action in the appeals court…Such bond shall also be conditioned to pay the plaintiff, if final judgment is in plaintiff’s favor…all damage and loss which the plaintiff may sustain by the withholding of possession of the land or tenements demanded and by any injury done thereto during such withholding, with all costs, until delivery of possession thereof to such plaintiff…” (emphasis added).

End Of Decision

HOUSING COURT

PUTNAM 234 ASSOCIATES, LLC. VS DAVID A. PAPARO

Docket # NO. 08H84SP002504

Parties: PUTNAM 234 ASSOCIATES, LLC. VS DAVID A. PAPARO

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: July 17, 2008

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

The Plaintiff brings this summary process action to obtain possession of the premises and damages for unpaid rent from the Defendant. The Defendant filed an Answer alleging breach of the implied warranty of habitability and appeared pro se.

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

Catherine Collins (“Collins”) testified that she is the Property Manager for the Putnam 234 Associates LLC (“Putnam”), the owner of a number of condominium units located at 234 Causeway Street, Boston,

MA. The units are located in a building consisting of a total of 138 units and other mixed uses. Collins testified that Putnam owns Unit #1102 (the “Premises”) in which the Defendant resides pursuant to a Lease. (Exhibit #1) She further testified that the Defendant’s rent is $2,159.00 per month, due on or before the first of the month.

– 1-

Collins stated that the Defendant currently owes $11,095.00 representing rent for the months of March, April, May, June and July 2008. Further, she testified that the Defendant was required to pay a late fee of $25.00 for late payment of the rent. Collins was credible in her testimony.

The Plaintiff served a fourteen-day Notice to Quit for failure to pay rent on the Defendant on June 13, 2008. Exhibit 1. The Notice to Quit alleged rent due in the amount of $8,636.00 for unpaid rent for the months of March, April, May and June 2008. The Plaintiff served a Summons and Complaint on the Defendant on June 28, 2008, with an account annexed of $8,636.00, representing unpaid rent for the months of March, April, May and June 2008.

At trial, the Defendant acknowledged the total rent due the Plaintiff for the months of March, April, May and June 2008. The Defendant did not submit any credible evidence related to his claim of breach of the Implied warranty of habitability. The Court ,found her testimony credible.

A landlord has the right to possession pursuant to M.G.L. c. 239 s.1. The Court finds that the Plaintiff has proven its prima facie case for possession and damages against the Defendant for unpaid rent in the amount of $10,795.00, plus costs, calculated at the rate of $2,159.00 per month for the months of March, April, May and June and July 2008. The Plaintiff failed to meet its burden that the imposition of a late charge against the Defendant of $25.00 was permitted under the terms of the Lease.

ORDER FOR JUDGMENT

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

– 2-

1. Judgment enters for the Plaintiff for possession and damages for unpaid rent in the amount of $10,795.00.00, plus costs.

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

cc: David A. Paparo

Amy M. Rodrigues, Esquire

– 3-

End Of Decision

HOUSING COURT

ANA PENA, Plaintiff VS. SAVERA ALEMENY WILLY PEREZ, Defendants

BOSTON DIVISION

Docket # NO. 08-H84-SP-/0/2/6/3/7/

Parties: ANA PENA, Plaintiff VS. SAVERA ALEMENY WILLY PEREZ, Defendants

Judge: /s/WILBUR P. EDWARDS JR.

ASSOCIATE JUSTICE

Date: August 14, 2008

FINDINGS OF FACT, RULINGS OF LAW AND ORDER FOR JUDGMENT

This case came before the Court, Edwards, J., for trial on July 31, 2008. The Plaintiff seeks possession of Unit #4 at 3151 Washington Street in Jamaica Plain, Boston (the “Premises”) and $6,300.00 for unpaid rent for the period November 2007 through July 2008. The Defendants filed an answer alleging a breach of the implied warranty of habitability. Both parties appeared pro se.

Based upon the testimony and other evidence presented at trial and the reasonable inferences drawn therefrom, in light of the governing law, the Court finds as follows:

The Plaintiff, Ana Pena (“Pena”), owns the property at 3151 Washington Street (the “Building”) in the Jamaica Plain section of Boston and rents Unit #4 in the Building (the “Premises”) to the Defendants. The Defendants’ tenancy commenced in June or July 2006 with a monthly rent of $700.00, due on or before the first day of each month.

– 1-

The Plaintiff testified that the Defendants last made a rental payment in October 2007 and currently owe $6,300.00 through the end of July 2008. The Court found the Plaintiffs testimony credible.

Defendant Sayera Alemeny (“Alemeny”) testified that she is behind in the rent and is experiencing serious financial difficulties, including the seizure of her funds by the Internal Revenue Service for non-payment of student loans.

On June 27, 2008, the Plaintiff served the Defendants with a fourteen (14) Day Notice to Quit (“NTQ”) dated June 26, 2008, with a demand for rent due in the amount of $5,600.00 for the period November 2007 through June 2008. (Exhibit 1.) The Summons and Complaint was served on the Defendants July 13, 2008, with an Account Annexed of $6,300.00. The Court finds that the Plaintiff has established her prima facie case for possession and damages. See The Dolben Co. v. Girgih, Boston Housing Court Docket No. 05-SP-04368 (Jan. 12, 2006) (Pierce, C.J.). The Defendants presented their defenses.

The Defendant, Alemeny, testified that there were conditions in the Premises that breached the implied warranty of habitability and that she had advised the Plaintiff of those conditions. The Defendant, Alemeny testified that the bedroom windows were broken and that there were cockroaches and mice through the Premises. She identified an inspection report completed by the Boston Inspectional

Services Department (“ISD”) dated March 29, 2008 concerning the Premises. (Exhibit 2.) The inspection report identified the following adverse conditions: no smoke detectors; no carbon monoxide alarms; broken bedroom window; leaky bedroom ceiling; kitchen cabinet in need of repair; rodent holes in the kitchen wall; problems with the vent for the stove in the kitchen; front door in need of repair; leaks in the living room;

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leaky roof in need of repair; ceiling area near rear window has holes; rear porch in need of repair; and rubbish on the rear porch. (Exhibit 2.) The Court finds that the Plaintiff received the March 29, 2008 ISD inspection on or around March 29, 2008.[1]

Ms. Alemeny continued her testimony by stating that the only repairs that had been completed following the ISD report of March 29, 2008 was to wooden panels in the Premises. She stated that the roof still leaked, that the stove vents had not been repaired, that the smoke and carbon monoxide detectors had not been installed, that the front door had not been repaired, and that there were still issues with the cockroaches and mice.[2] She further testified, that the Plaintiff had not completed any repairs to the back porch. Alemeny identified photos of the Premises indicating the conditions and the presence of cockroaches. (Exhibits 3a and 3b.) She was credible in her testimony.

G.L. c. 239, s.8A p.1 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.” Pursuant to G.L. c. 239, s.8A p.2, where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to a defense to possession only if: (1) the landlord

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[1] While the Plaintiff denied receipt of the ISD report, the Court found the Defendant Alemeny’s testimony credible that the Plaintiff paid for the Defendant’s accommodations at a Doubletree Motel while certain repairs were completed in the Premises after she delivered a copy of the ISD inspection to the Plaintiff.

[2] The parties gave disputed testimony concerning the Defendants’ failure to provide access to the Premises for the purposes of extermination service by the Plaintiff. The Court, Edwards, J., issued an Order that the Defendants permit the Plaintiff to exterminate the Premises on August 3, 2008.

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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 implied warranty of habitability is the landlord’s promise that the premises will meet certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the tenant is in material violation of the minimum standards expressed in the State Sanitary Code. Boston Housing Authority v Hemingway, 363 Mass. 184 (1973). A landlord must have actual or constructive notice of the condition creating the violation. McKenna v. Begin, 3 Mass.App.Ct. 168 (1975). Damages are assessed from the date the landlord had notice of the condition of disrepair. Berman & Sons v. Jefferson, 379 Mass. 196 (1979). The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises as warranted and the fair rental value of the premises with the defects. McKenna v. Begin supra at 172.

The Court finds that the conditions at the Premises, in the aggregate, breached the implied warranty of habitability. Specifically, the Court finds that the following adverse conditions violated the State Sanitary Code: no smoke detectors; no carbon monoxide alarms; broken bedroom window; leaky bedroom ceiling; kitchen cabinet in need of repair; rodent holes in the kitchen wall; problems with the vent for the stove in the kitchen; front door in need of repair; leaks in the living room; leaky roof in need of repair; ceiling area near rear window has holes; rear porch in need of repair; and rubbish on the rear porch. (Exhibit 2.) The Court therefore finds that the Defendants are entitled to a rent abatement in the amount of $2,013.75, or seventy

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per cent (70%), calculated as follows: $23.01 /day[3] x 70% = $16.11 /day x 125 days[4] = $2,013.75.

The Court further finds that the Defendants were in arrears in their rent as early as November 2007, and that the Plaintiff was not notified of the conditions at the Premises until the ISD inspection report of March 29, 2008. Accordingly, as the Defendants were in arrears in their rent prior to the time the Plaintiff knew of the conditions at the Premises, the Defendants are not entitled to a defense to possession pursuant to G.L. c. 239, s.8A p.2.

The Plaintiff shall cure all remaining violations as set forth in the ISD inspection report regarding the Premises and Building dated March 29, 2008 within twenty (20) days from the date that judgment enters in this case. (Exhibit 2.) All work is to be done with appropriate permits at the Plaintiff’s sole expense and shall be completed in a good and workmanlike manner as set forth herein. Abrams v. Factory Mutual Liability Insurance Company 298 Mass. 141, 143 (1937); Mass. Highway Dep ‘t v. Walsh Constr. Co., No. 015746BLS (Mass.Super.Ct. 2003).

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 and

damages for unpaid rent for the period November 2007 through July 2008 in the amount of $6,300.00, plus costs.

2. Judgment enter for the Defendants on their implied warranty of habitability counterclaim in the amount of $2,013.75.

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[3] The per diem rental rate is calculated as follows: $700.00 monthly rent x 12 months = $8,400.00 € 365 days = $23.01/day.

[4] The period March 29, 2008, the date of the ISD inspection report, through July 31, 2008, the date of trial, consists of 125 days.

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3. The foregoing Order for Judgment paragraphs 1 and 2 result in a net judgment for the Plaintiff in the amount of $4,286.25, plus possession and costs.

4. The Plaintiff shall cure all remaining violations as set forth in the ISD inspection report regarding the Premises and Building dated March 29, 2008, Exhibit 2, within twenty (20) days from the date that judgment enters.

5. Execution shall issue ten (10) days from the date of entry of Order for Judgment.

SO ORDERED.

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End Of Decision

HOUSING COURT

Abington Glen Apartments PLAINTIFF v. Harold V.Guy

DEFENDANT

Docket # Docket No. 07-CV-01079, 07-SP-05004

Parties: Abington Glen Apartments PLAINTIFF v. Harold V.Guy

DEFENDANT

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: December 30, 2008

MEMORANDUM OF DECISION ON DEFENDANT’S MOTION FOR ATTORNEY’S FEES AND COSTS

These consolidated actions commenced with a claim filed by the Plaintiff, Abington Glen Apartments (“Abington Glen” or “Plaintiff”) against the Defendant Harold V. Guy (“Guy” or “Defendant”) for possession and unpaid rent. The Defendant filed an Answer and Counterclaims alleging adverse conditions at the Premises and seeking unspecified damages. This Court, Edwards, J., following trial on the matter, allowed the Plaintiff’s Motion for Directed Verdict and awarded the Plaintiff damages for unpaid rent in the amount of $4,264.00, plus costs. The Court also found for the Defendant on his counterclaims in the amount of $3,223.00, plus costs and reasonable attorney’s fees. As part of the June 13, 2008 Memorandum of Decision, the Defendant was ordered to file a Motion for Counsel Fees, Costs and Expenses. The Defendant has done so; the Plaintiff has filed an opposition. The Court conducted a hearing on the Defendant’s Motion on July 1, 2008.

In determining an award of attorney’s fees the Court must consider “the nature of the case and the issues presented, the time and labor required, the amount of the damages involved, the result obtained, the experience, reputation and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases.” Linthicum v. Archambault, 379 Mass. 381, 388-9, 398 N.E. 2d 482, 488 (1979). See Heller v. Silverbranch Constr. Corp., 376 Mass. 621, 629, 382 N.E.2d 1065 (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 court judge. Linthicum v. Archambault, supra at 388. An evidentiary hearing is not required. Heller v. Silverbranch Constr. Corp., supra at 630-631 (“[because] we conclude that the judge is to rely on his firsthand knowledge of the services performed before him … the judge in the instant case acted properly in awarding the Hellers attorney’s fees, notwithstanding the absence of evidence concerning time spent and the attorney’s usual charge.”). “A fair market rate for time reasonably spent preparing and litigating a case is the basic measure of a reasonable attorney’s fee under State law as well as Federal law.” Fontaine v. Ebtec

Corporation, 415 Mass. 309, 326 (1993).

The Court in its Decision awarded the Defendant damages along with court costs and reasonable attorney’s fees after finding that the Plaintiff had breached M.G.L. c. 93A and the covenant of quiet enjoyment pursuant to M.G.L. c. 186, s.14 by permitting adverse conditions to persist at the Defendant’s Premises.

Counsel for the Defendant has submitted an affidavit of legal fees in the amount of $19,030.00 indicating a total of 69.2 hours for all time spent to date. According to the affidavit, Attorney Daniel A. Capodilupo charges an hourly rate of $275.00. The Court finds that an hourly rate of $200.00 is a reasonable rate for attorneys practicing in the greater Brockton area for this type of case, and therefore shall award the Defendant attorney’s fees at that rate.

The Court finds that the facts involved with the Defendant’s quiet enjoyment claim at trial were complex, as both parties conducted extensive direct and cross-examination and presented substantial testimony and documentation. The Court further finds, however, that portions of the pre-trial preparation charged by Attorney Capodilupo were excessive, including document preparation and filing, and could have been completed by a paralegal or associate at a lower hourly rate. The Court, on review of Defendant’s counsel’s affidavit, awards legal fees as to the quiet enjoyment and M.G.L. c. 93A claims in the amount of $8,304.00, based upon 41.52 hours of time at the rate of $200.00 an hour.

The Defendant further submitted a request for the following costs: 1) copying in the amount of $65.00; 2) fax transmissions in the amount of $20.00; 3) postage in the amount of $30.00; 4) court parking and transportation in the amount of $70.00; 5) statutory nominal attorney’s fees in the amount of $2.50; 6) medical records in the amount of $44.79; 7) gas/mileage in the amount of $100.00; and 8) expert witness fees in the amount of $1,070.00. The Court finds that the following costs were reasonable and related to the trial: 1) copying in the amount of $65.00; 2) fax transmissions in the amount of $20.00; 3) postage in the amount of $30.00; 4) court parking and transportation in the amount of $70.00; and 5) medical records in the amount of $44.79. The Court finds that the Defendant’s request for gas and mileage costs in the amount of $100.00 is duplicative of the $70.00 in court parking and transportation costs also requested and therefore shall make one award of $70.00 for transportation-related costs. The Court finds that the Defendant sought expert witness fees in a separate Motion before this Court; the Court shall not now award costs and fees that have already been awarded in a separate Motion. The Court further finds that the Defendant is not entitled to statutory nominal attorney’s fees pursuant to M.G.L. c. 261, s.23, as this Court is not authorized to award such fees. [1] The Court therefore awards reasonable attorney’s fees in the amount of $8,304.00 and costs of $229.79 for a total of $8,533.79, nunc pro tunc to June 13, 2008.

cc: Stephen M. Scolnick, Esq.

Daniel A. Capodilupo, Esq.

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[1] M.G.L. c. 261, s.23 provides, in pertinent part: “There shall be allowed, in a civil action in the supreme judicial court, appeals court or in the superior court, in addition to other disbursements allowed by law, the following costs:…For an attorney’s fee, if an issue in law or fact is joined, two dollars and fifty cents; if not, one dollar and twenty-five cents…”.

End Of Decision

HOUSING COURT

Abington Glen Apartments c/o Equity Residential PLAINTIFF v. Harold V. Guy DEFENDANT

Docket # Docket No. 07-SP-05004, 07-CV-01079

Parties: Abington Glen Apartments c/o Equity Residential PLAINTIFF v. Harold V. Guy DEFENDANT

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: June 13, 2008

FINDINGS OF FACT, RULINGS OF LAW and ORDER FOR JUDGMENT and MEMORANDUM OF DECISION ON PLAINTIFF’S MOTION FOR DIRECTED VERDICT

These consolidated cases arise from the Defendant Harold V. Guy’s occupancy of apartment units owned by the Plaintiff. The Plaintiff relocated the Defendant from one unit to another unit in the Plaintiff’s apartment complex on or about December 22, 2006, and the Defendant continued to occupy the new unit through April 10, 2007. For purposes of this action, the initial apartment occupied by the Defendant, Unit #1D6, shall be referred to as the “First Unit.” The second apartment occupied by the Defendant, Unit #3D6, shall be referred to as the “Second Unit.” The Plaintiff initiated the summary process action as to the Second Unit, seeking possession of that apartment due to non-payment of rent. The Defendant filed an Answer and Counterclaims as to the First Unit, alleging breach of the implied warranty of habitability, retaliation, breach of warranty of quiet enjoyment, negligence, misrepresentation (fraud), intentional and negligent infliction of severe mental distress, property damage, pain and suffering, and violation of M.G.L. c. 93A. Possession is moot as the Defendant has vacated the Second Unit.

The Plaintiff filed a timely motion to sever the Defendant’s counterclaims from the summary process action. The Court granted the Plaintiff’s motion, finding that the counterclaims involved the conditions at the First Unit, which was not the subject of the Plaintiff’s summary process action. [1] As the Defendant vacated the Second Unit in April of 2007, the Court subsequently consolidated the summary process and civil actions, #07-SP-05004 and #07-CV-01079, respectively, for purposes of discovery and trial. Both parties were represented by counsel.

Following the close of the Plaintiff’s case, the Plaintiff moved for a Directed Verdict pursuant to Mass.R.Civ.P. 50(a) as to its claim for unpaid rent. In order to direct a verdict, the Court must find that, after viewing the evidence in the light most favorable to the nonmoving party, nothing in the evidence, “…from whatever source derived, any combination of circumstances…could be found from which a reasonable inference could be drawn in favor of the [nonmoving party].” See Simmons v. Monarch Machine Tool Co., Inc., 413 Mass. 205, 210-11 (1992); Stapleton v. A. Philip Macchi, 401 Mass. 725, 728 (1988); Adams v. Herbert, 345 Mass. 588, 589

(1963). The Court took the Plaintiff’s oral motion for Directed Verdict under advisement and now finds as follows:

Melissa Ludwig (“Ludwig”) was the first witness for the Plaintiff and testified that she is a Property Manager with Equity Residential, a position she has held for two years. She is familiar with tenant files and she specifically identified the lease agreement (“Lease”) between the parties. Plaintiff’s Exhibit 1. The Lease entered into evidence was for Unit #1D6 (the “First Unit” or “Unit #1D6”) at the Abington Glen Apartments, and provided for a one year term beginning September 2005. The Lease was subsequently renewed for an additional term commencing September 19, 2006 and terminating September 16, 2007. The monthly rent under the Lease is $1,066.00 and is due on the first of each month.

She went on to testify that on or about December 22, 2006, the Plaintiff relocated the Defendant to Unit #3D6 (the “Second Unit” or “Unit #3D6”), which is in the same building as the First Unit. She testified that the Defendant did not pay rent after the move from the First Unit to the Second Unit and that he vacated the Second Unit on April 10, 2007. She also identified a Resident Ledger, Plaintiff’s Exhibit 3, containing records for charges and payments for the Second Unit for the period January 2007 through the end of April 2007 in the amount of $4,182.77. [2] The Court found her testimony credible.

On February 5, 2007, the Plaintiff served the Defendant with a Fourteen Day Notice to Quit as to the Second Unit, Plaintiff’s Exhibit 2, alleging an unpaid balance in the amount of $2,441.48. The Plaintiff served the Defendant with a Summons and Complaint on February 23, 2007 with an Account Annexed of $2,050.77, representing unpaid rent in the amount of $948.77 for January 2007 and $1,066.00 due for February 2007. [3] At trial, the Plaintiff moved to Amend the Account Annexed to $4,182.77 and the Court allowed the Amendment.

The Defendant Harold V. Guy testified that the payment for January 2007 was cashed by the Plaintiff. He further stated that he gave the Plaintiff a check for the February 2007 rent, but that it was not cashed. He submitted no documentation to support his claim that he made rental payments in either January or February 2007. He testified on cross-examination that he made no rent payment for March or April 2007. To the extent that the Defendant testified that he made no rent payment for March or April 2007, the Court finds him credible.

The Court finds that the Plaintiff has proven its prima facie case for damages against the Defendant for unpaid rent in the amount of $4,264.00, plus costs, calculated as follows: $1,066.00 for the months of January, February, March and April 2007. [4] The Court DENIES the Plaintiff’s Motion for Directed Verdict as to its claim for unpaid rent in the amount of $4,182.77. [5]

THE DEFENDANT’S CLAIMS

The Defendant, in his Answer and Counterclaims, alleged that the presence of mold at the First Unit breached the implied warranty of habitability and the covenant of quiet enjoyment. The Defendant also alleges that the Plaintiff’s failure to properly maintain the First Unit free from mold constituted negligence, intentional and negligent infliction of severe mental distress, and caused property damage. The Defendant further alleged that the Plaintiff’s failure

to reimburse the Defendant for the alleged property damage constituted misrepresentation or fraud, and that the Plaintiff retaliated against him for complaining of the conditions. The Defendant also alleged a violation of M.G.L. c. 93A. [6]

Melissa Ludwig, the Plaintiff’s property manager described the garden style apartment complex where the First and Second Units were located as a three-story horseshoe shaped building. She testified that on or about December 22, 2006, the Plaintiff moved the Defendant to Unit #3D6 (the “Second Unit” or “Unit #3D6”), which is located in the same building as the First Unit, #1D6. She stated that she was aware of problems with air quality in the First Unit, though the Plaintiff had not received any formal complaints from the Defendant between September 2005 and September 2006. She testified that the Defendant initially complained of a small amount of mold in the First Unit and that he subsequently reported additional mold growth in the apartment. After having received complaints from the Defendant about mold, she stated that she personally went to inspect the First Unit sometime in November 2006.

Ludwig detailed the procedures for reporting mold problems in the complex. Ludwig identified a document entitled “Tips for Preventing Mold”, Defendant’s Exhibit C, along with follow-up letters to tenants concerning the maintenance department’s response to complaints. She said that upon receipt of a service request, a maintenance technician performs the work needed, and a report is then made of the actions taken by the maintenance technician. Ludwig testified that the tenants generally are also given dehumidifiers and that the Defendant had received a dehumidifier for the First Unit. She confirmed that the Defendant continued to complain of the air quality in his apartment even after delivery of the dehumidifier. She also said that the Defendant advised her of the need to drain water from the dehumidifier on an almost daily basis.

Ludwig identified numerous service requests for the Defendant’s First Unit. Plaintiff’s Exhibit 5. [7] The service request dated August 21, 2006, describes the work requested as: “Resident can smell an m+m [8] odor all over apartment. Please check ENTIRE apartment” (emphasis in original). The Plaintiff’s agents indicated on the service request on August 22, 2006: “Check entire apt no mildew. Put dehumidifier in apt to help take musty smell away…. will check back in a couple of days.” Plaintiff’s Exhibit 5. Work Order Number 9082690. In a subsequent service request dated October 30, 2006 at 2:30 P.M., the service request indicated: “Mold or mildew reported in unit (describe)…Special Instructions: Resident can smell a musty smell in the entire apartment. Please inspect for any apparent mildew. Unit was inspected on 8/22/06 for mildew, and none was found. Please place de-humidifier in unit for a few days….Action Taken/Materials Used: Went into 1D6 at 9:30 A.M. and place dehumidifier in apt at residents request. Inspected apt. for mold and mildew found none present. Will check apt. daily to monitor situation.” Plaintiff’s Exhibit 5, Work Order Number EO-442292.

In a separate report entitled “General Liability Incident Reporting Form” dated October 30, 2006, Plaintiff’s Exhibit 5, one of Plaintiff’s agents, Caitlin Hirsch, reports the Defendant’s complaints in detail. The report, in summary, states that the

Defendant came to the Plaintiff’s office and reported a musty smell in his apartment. Further, according to the report, the Defendant indicated residue of mold or mildew on his clothing, including a navy blue jacket which Ms. Hirsch viewed. The report further confirms an inspection of the First Unit with one Tom Lee on October 31, 2006, in which mold was found on a wall in the bedroom. According to the report, the mold was treated with a water and bleach solution. The report indicates that the Defendant had previously reported a mold or mildew problem in the unit on August 21, 2006, in addition to suffering excessive coughing and problems with the musty smell. Plaintiff’s Exhibit 5. In a separate Work Order/Resident Service Request dated November 6, 2006, the Plaintiff’s agents noted the following: “Work Requested: Mold or mildew reported in unit (describe)…Special Instructions: Mildew on carpet in master bedroom closet, please treat…Action Taken/Materials Used: treated mildew with lysol cleaner and used resolve carpet cleaner with disinfectant. Will check back on 11/7/06. Returned on 11/7/06-checked area, moved de-humidifier into the bedroom. Closet was OK. Checked back on 11/7/06-moved the de-humidifier into the bedroom and checked area’s [sic] that were cleaned the previous day for m&m. None found present.” Plaintiff’s Exhibit 5, Work Order Number EO-460139.

Ms. Ludwig testified that she inspected the Defendant’s personal property for evidence of mold or mildew damage. She indicated that she did not see evidence of mold or mildew on the items, nor could she detect an odor from the clothing.

She acknowledged receipt of a letter dated December 21, 2006, which the Defendant faxed to the Plaintiff. Defendant’s Exhibit F. In that letter, the Defendant again complained of mold in the apartment, and referred to the results of a mold inspection. Defendant’s Exhibit F. He also requested a transfer to another apartment in the same complex. Defendant’s Exhibit F.

Ludwig also identified an Acknowledgment and Release form, Defendant’s Exhibit D, and an Early Lease Termination Election, Defendant’s Exhibit E. Ludwig stated that the Defendant did not sign those forms, but she did not know why. She was credible in her testimony.

Harold V. Guy (“Guy”), the Defendant, testified that he is a senior staff accountant and had resided by himself in the First Unit since September 2005. He described the unit as a two-bedroom basement apartment with small windows and a closed or block-up air conditioning sleeve. He stated that at the time of his initial occupancy in September 2005, the unit had a strong smell of unfinished construction. Guy testified that, during the tenancy, he found mold on his shoes, clothing, and the floor and carpeting. He then testified that he notified the Plaintiff of these conditions in September 2006 and that the Plaintiff did not respond.

He testified that he has a history of asthma and a related sensitivity to older buildings. He noted that he is generally able to function normally but that he noticed additional health problems, in addition to more frequent problems with his asthma, when he initially moved to the First Unit. He described symptoms such as coughing and watery eyes, and stated that these symptoms occurred mostly in the summer or during the peak rainy season while he resided in the First Unit at Abington Glen. Guy stated that he suffered from headaches, in addition to hacking and coughing, and as a result went

to a doctor. He testified that he did not have these symptoms prior to occupying the First Unit. As a result of the conditions in the apartment, along with the time he spent with different inspections and medical examinations, Guy stated that he lost time from work. According to his testimony, the physical symptoms and conditions continued for a period of six months after he vacated the First Unit.

The Defendant confirmed that he received a dehumidifier from the Plaintiff sometime in October 2006 after he reported seeing mold in the apartment. He testified that the dehumidifier reservoir would fill up every twenty-four to thirty-six hours and he would have to empty it. He identified a letter dated November 21, 2006 he sent to the Plaintiff’s agents, Caitlin Hirsch and Melissa Ludwig, confirming that the apartment was inspected on Friday, November 17, 2006. Defendant’s Exhibit J. In his November 21, 2006 letter, the Defendant requested written documentation from the Plaintiff as to the reimbursement procedure for damage to his clothing, and further requested a copy of the report produced by the Plaintiff’s mold testing company. Defendant’s Exhibit J. He indicated that he eventually received the Plaintiff’s mold report on or about December 24, 2006. [9] Defendant’s Exhibit K.

Guy testified to photos of various items of clothing that were allegedly exposed to mold. Defendant’s Exhibits A1-24. He testified that the clothes were located in his bedroom closet and he took the photographs between September and October 2006 to show the Plaintiff the damage to his personal property. He said some clothing had been cleaned and some had been discarded. His testified that his total costs for cleaning clothes and for replacing damaged clothing and other personal property was approximately $2,700.00. Defendant’s Exhibit O. On cross-examination, he reconfirmed the damage to his clothing and personal property but acknowledged that the photos marked as Defendant’s Exhibits A1-24 did not show the alleged damage.

The Defendant’s medical records for treatment in 2006 and 2007 were admitted pursuant to M.G.L. c. 233, s.79G and without objection. Defendant’s Exhibits P and Q. There was no additional testimony related to the documentation or the Defendant’s medical expenses.

Andrew Porvitola testified on behalf of the Defendant. He stated that he works with Environmental Resources, a consulting organization that tests for environmental problems in various settings. He stated that he is generally employed by public disaster relief companies and he has been inspecting sites since the early 2000s. He testified that his custom and practice is to follow industry standards for mold testing, as there are no state or federal standards. He was retained by the Defendant to test samples of air in the Defendant’s First Unit, and stated that he completed testing in two rooms and took a sample of the exterior air. As a result of the testing, he advised the Defendant that mold remediation was recommended. He testified that he observed no visible staining in the Premises as a result of the mold nor any visible signs of chronic dampness at the time of inspection. He testified that he observed some signs of mold on some of the Defendant’s clothing and a belt. He did not open any walls or check under carpeting in the unit for signs of dampness. He could not testify as to any medical causality. He was credible in his testimony.

Michelle Roberts, the Health Inspector for the Town of Abington, testified that she annually inspects the entire building, primarily for air quality issues. She testified that she conducted a visual inspection of the First Unit on December 15, 2006, at which time she saw some mold on a bathroom closet shelf. She advised the Defendant at that time to consult a mold expert concerning the problem and further testified that she verbally advised the Plaintiff of the problem. She stated that she inspected the First Unit again on January 5, 2007, at which time the apartment was clean and free of mold. [10] She confirmed that she had received a copy of Defendant’s Exhibit F sometime around December 21, 2006. She was credible in her testimony.

Michael Coppa testified that he assists the Plaintiff’s area manager with maintenance issues and that he is familiar with the First Unit. He stated that sometime at the end of October 2006, he, along with the Plaintiff’s assistant property manager Caitlin Hirsch, checked for mold or water infiltration in the First Unit. He stated that they found a black mark under the carpet, and a stain under a pair of shoes that was approximately twelve inches long. Coppa testified that the stained area was later cleaned with a carpet shampoo. Further, he testified that there was a dehumidifier in the unit. He confirmed on cross-examination that he had no training in mold testing or identification. He was credible in his testimony.

Steve Dylrowski testified as the Plaintiff’s Director of Facilities for the East Coast. He is Michael Coppa’s supervisor. He testified that he, along with personnel from a company called Able Restoration, inspected the Defendant’s First Unit on November 16, 2006. During the inspection he looked for visible mold and water intrusion, as the presence of unwanted water in the Premises could cause the growth of mold. He stated that he pulled the carpet up in places but only found some moisture in an area behind the toilet in the bathroom. He testified that he also checked the mold stain on a location beneath the Defendant’s shoes. The carpet pad area, he testified, was clean and there was no evidence of mold or water intrusion in the Premises. Dylrowski also testified that the Abington Board of Health conducted a follow-up inspection prior to a new tenant moving into Unit #1D6, and that there was no evidence of mold or moisture at the time of the follow-up inspection. He stated that he was aware of the report from the Defendant that he had found a small spot of mold in the linen closet. On cross-examination, Dylrowski stated that he had no training in mold remediation. He was credible in his testimony.

Steve Larkin (“Larkin”), a senior project manager for Able Restoration, testified that he has been with Able Restoration for a period of nine years. The company restores items and property damaged by fire, flood and mold. He stated that he is a Certified Mold Remediation Specialist. He stated that he inspected the First Unit on November 17, 2006 and wrote a report dated December 5, 2006. He inspected the entire apartment in an effort to detect mold, mildew or water intrusion. He also used an infrared thermal imaging camera to look for excessive moisture, and testified that he did not find any excessive moisture on the inspection date. He further testified that no mold remediation was required in the First Unit.

Larkin went on to identify the report dated December 5, 2006 which he prepared and which confirmed his testimony that no mold

remediation was required in Unit 1D6. Plaintiff’s Exhibit 4. On cross examination, he confirmed that he had no advanced degrees in mold detection and that he had no experience with mold spore detection. He was credible in his testimony.

Patricia Gay testified that she is employed as a Regional Manager for the Plaintiff and is responsible for twelve properties. She oversees managers of various properties and works with tenants. She stated that she spoke with the Defendant on December 22, 2006 in conjunction with negotiating his relocation or transfer to another apartment. She stated that he was initially reluctant to move because of the proximity to the holidays. She confirmed that he would pay the same amount of rent in the new apartment and that there would be no charge to the Defendant for the move because the Plaintiff would absorb all moving costs. She further stated that the Defendant was given credit for damage to shoes, curtains and other items but she did not testify to an amount. She completed her testimony by stating that she believed another employee, Melissa Ludwig, inspected for the alleged damage to the personal property but did not find support for the claim. She was credible in her testimony.

Breach of the Implied Warranty of Habitability Claim

The Defendant has alleged that the presence of mold at the First Unit breached the implied warranty of habitability. The implied warranty of habitability is the landlord’s promise that the premises will meet certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the tenant is in material violation of the minimum standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). A landlord must have actual or constructive notice of the condition creating the violation. McKenna v. Begin, 3 Mass.App.Ct. 168 (1975). Damages are assessed from the date the landlord had notice of the condition of disrepair. Berman & Sons v. Jefferson, 379 Mass. 196 (1979). The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises as warranted and the fair rental value of the premises with the defects. McKenna v. Begin, supra at 172.

The Court finds that the presence of mold at the First Unit breached the implied warranty of habitability. Andrew Porvitola, an inspector with an environmental testing agency, stated that he observed mold on some items of clothing and tested air samples taken from the First Unit. As a result of his observations and the air sample test results, Porvitola testified that he recommended mold remediation for the First Unit. Further, the Defendant testified that there were signs of water intrusion and mold at the Premises for a period of approximately four months before he was relocated to the Second Unit. Accordingly, the Court finds that the Defendant is entitled to a rent abatement for the period of August 21, 2006, the date of the Defendant’s first complaint of mold to the Plaintiff, through December 22, 2006, the date the Defendant moved to Unit 3D6, in the amount of $869.24, or twenty per cent (20%), calculated as follows: $35.05/day [11] x 20% = $7.01 x 124 days [12] = $869.24.

[13]

Retaliation Claim

The Defendant has alleged that the Plaintiff retaliated against him for: 1) deducting amounts from his rent for damage to personal property; 2) reporting the Plaintiff to Environmental Resources and Services; and, 3) reporting or filing a complaint with the Abington Board of Health. M.G.L. c. 186, s.18 sets forth in pertinent part a right of action for a tenant as to retaliation by a landlord: “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 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 tenants engaging in, or the belief that tenants had engaged in, activities protected under this section.” M.G.L. c. 186, s.18.

The Court finds that, on February 5, 2007, the Plaintiff served the Defendant with a legally sufficient Fourteen Day Notice To Quit as to the Second Unit. The Court finds that the Defendant has failed to present evidence of complaints as to the conditions in the Second Unit, made to the Plaintiff or others, and therefore he is not entitled to the statutory presumption of retaliation.

The Court further finds, on the facts of this case, that the Plaintiff did not retaliate against the Defendant. The Court finds that the Plaintiff’s sole reason for serving the Fourteen Day Notice To Quit was to terminate the Defendant’s tenancy for nonpayment of rent. The Court finds that the Plaintiff 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 complained about conditions in the First Unit within six months of February 5, 2007. Accordingly, the Defendant is not entitled to an award of damages under M.G.L. c. 186, s.18. [14]

Breach of the Covenant of Quiet Enjoyment Claim

The Defendant has alleged that the Plaintiff breached the

covenant of quiet enjoyment pursuant to M.G.L. c. 186, s.14 by failing to maintain the Premises in compliance with the State Sanitary Code. M.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…” A landlord violates M.G.L. c. 186, s.14 where he had notice, or reason to know of the serious condition in the tenant’s apartment, and failed to take appropriate corrective measures. Al Ziab v. Mourgis, 424 Mass. 847, 850-851 (1997); Cruz Management Co., Inc. v. Thomas, 417 Mass. 782 (1994).

In calculating the damages due the Defendant for Plaintiff’s breach of the covenant of quiet enjoyment, the Court must under M.G.L. c. 186, s.14 compare the Defendants’ actual damages versus the statutory damages permitted under the statute. [15] The Defendant presented no evidence of actual damages. [16] Therefore, the Defendant is entitled to statutory damages of $3,198.00 computed by trebling the monthly rent of $1,066.00, plus costs and reasonable attorney’s fees. As computed pursuant to the statute, the Court must award the greater amount to the Defendant for his damages; accordingly, the Court finds in favor of the Defendant for the Plaintiff’s breach of quiet enjoyment in the amount of $3,198.00, plus costs and reasonable attorney’s fees.

Within ten (10) days of the date that judgment enters, counsel for the Defendant shall file with this Court a Motion for Counsel Fees, Costs and Expenses in accordance with the procedure proscribed in Yorke Mgmt v. Castro, 406 Mass. 17, 20 (1989). After hearing, the Court shall award reasonable attorney’s fees and costs nunc pro tunc to the date of this Decision.

Negligence Claim

The Defendant in this claim alleges that the Plaintiff negligently maintained the Premises by failing to remediate mold. Negligence is the failure to exercise that degree of care which a reasonable person would exercise under the circumstances. Morgan v. Lalumiere, 22 Mass. App. Ct. 262 (1986), review denied, 398 Mass. 1103 (1986). Before liability for negligence can be imposed, the defendant must first owe a legal duty to the plaintiff, and the defendant’s breach of that duty must proximately result in injury. Davis v. Westwood Group, 420 Mass. 739, 742743 (1995). The duty owed by a landowner to someone lawfully on the owner’s premises is one of reasonable care under the circumstances. Sullivan v. Town of Brookline, 416 Mass. 825, 827 (1994). The common law duty of reasonable care owed to all lawful visitors by a landowner includes an obligation to maintain the premises in a reasonably safe condition. Davis, 420 Mass. at 743. Whether a defendant owes a duty of care to a plaintiff is a question of law to be decided by the court. Davis, 420 Mass. at 743; Yakubowicz v. Paramount Pictures, 404 Mass. 624, 629 (1989).

The Court finds that the Defendant’s negligence claim arises from the same set of circumstances as does his implied warranty of habitability and quiet enjoyment claims. As those claims have been resolved in other portions of this Memorandum, no additional damages will be awarded.

Misrepresentation (Fraud) Claim

The Defendant alleges that the Plaintiff promised to allow the Defendant to make reasonable deductions from the Defendant’s rent for the conditions at the Premises [17], but subsequently filed a lawsuit for nonpayment of rent. Further, the Defendant alleges that the Plaintiff deliberately misled him as to the conditions in the Premises. Finally, the Defendant alleges that the Plaintiff informed him that he would not lose any rights if he executed a tort release as to mold and/or poor air quality.

In order to recover for intentional fraudulent conduct, the Defendant must allege and prove that the Plaintiff made a false representation of a material fact with knowledge of its falsity for the purpose of inducing the Defendant to act thereon, and that the Defendant relied upon the representation as true and acted upon it to his damage. See Barrett Assocs., Inc. v. Aronson, 346 Mass. 150, 152 (1963); Kilroy v. Barron, 326 Mass. 464, 465 (1950). Mass.R.Civ.P. 9(b) provides, in pertinent part: “In all averments of fraud…the circumstances constituting fraud…shall be stated with particularity.” See Equipment & Systems for Industry, Inc. v. Northmeadows Construction Co., 59 Mass.App.Ct. 931, 932 (2003).

The Court finds that the Defendant has failed to sustain his burden on his fraud claims. Specifically, the Court finds that the Defendant failed to show that the Plaintiff intentionally misrepresented any facts to the Defendant. Based upon letters from the Plaintiff’s agents to the Defendant, the Court finds that the Plaintiff informed the Defendant that the Plaintiff would first inspect the personal property and clothing allegedly damaged by mold before negotiating any reimbursement for the alleged damages. Defendant’s Exhibits L and M. The Defendant failed to present any evidence or testimony controverting that submitted by the Plaintiff;

accordingly, the Court finds that the Plaintiff did not intentionally mislead the Defendant as to its intentions with respect to the damage to the Defendant’s personal property. Further, the Plaintiff’s agents testified, and the Court finds, that the Plaintiff was not aware of the mold at the First Unit until the Defendant informed them of the condition in August 2006. Plaintiff’s Exhibit 5. Therefore, the Court finds that the Plaintiff or its agents did not intentionally mislead the Defendant as to the conditions at the First Unit prior to his occupancy of Unit 1D6.

Finally, the Defendant failed to present any evidence or testimony to indicate that the Plaintiff misrepresented the nature of the Acknowledgment and Release, Defendant’s Exhibit D, or the Early Lease Termination Election, Defendant’s Exhibit E. The Court notes that the Defendant testified that he did not sign either form, nor was he specific in what losses he allegedly suffered related to the unsigned release forms. Further, the Plaintiff relocated the Defendant even though the Defendant refused to sign both documents. Accordingly, the Court must find for the Plaintiff on the Defendant’s claims for fraud or misrepresentation.

Intentional Infliction of Severe Mental Stress Claim

The Defendant alleged that the Plaintiff intentionally inflicted severe emotional or mental distress by interfering with the Defendant’s quiet enjoyment of the Premises. [18] A party alleging intentional or reckless infliction of emotional distress need not prove physical harm related to the emotional distress. Agis v. Howard Johnson, 371 Mass. 140, 145 (1976). Instead, to prove intentional or reckless infliction of emotional distress, the plaintiff must show that the defendant engaged in extreme and outrageous conduct that he or she knew or should have known would cause emotional distress, and which caused emotional distress so severe that no reasonable man would be expected to endure it. Id. Conduct is extreme and outrageous when it is “beyond all possible bounds of decency and [is] utterly intolerable in a civilized community.” Id.

The Court finds that the Defendant has failed to show that any of the Plaintiff’s behavior was extreme or outrageous. The Plaintiff, through its employees, testified to efforts to remedy the mold, humidity, and atmospheric conditions in the First Unit after notification from the Defendant. The Court finds that the Plaintiff’s actions were neither extreme or outrageous. Further, the Court finds that the Defendant has failed to show, through testimony or documentation, that he suffered severe mental or emotional distress as a result of the Plaintiff’s actions. Accordingly, the Court must find for the Plaintiff on the Defendant’s claim for intentional infliction of emotional or mental distress.

Negligent Infliction of Severe Mental Distress Claim

The Defendant has alleged that the Plaintiff negligently inflicted emotional distress on the Defendant by failing to properly maintain the Premises. [19] In order to support a claim of negligent infliction of emotional distress, the Defendant must prove five elements: 1) negligence on the part of the Plaintiff; 2) emotional distress suffered by the Defendant; 3) causation; 4) physical harm to

the Defendant with objective symptomology; and 5) that a reasonable person would have suffered emotional distress under the circumstances. Payton v. Abbott Laboratories, Inc., 386 Mass. 540, 557 (1982). Without proof of physical harm, either caused by the emotional distress or which caused the emotional distress, one may not recover for mere emotional distress negligently inflicted. Id.

The Court finds that the Defendant has failed to show that the Plaintiff’s actions constitute negligent infliction of emotional distress. The Court finds that the Plaintiff acted appropriately after the Defendant notified the Plaintiff of the presence of mold in the First Unit. The Plaintiff’s agents promptly inspected the First Unit and provided dehumidifiers for the unit. Further, when the Defendant continued to complain of mold, the Plaintiff, at its expense, relocated the Defendant to a new apartment. The Court further finds that the Defendant presented no documentation or evidence of emotional distress caused by the Plaintiff’s actions, nor did he present evidence or documentation of physical harm related to any emotional distress he allegedly suffered. Accordingly, the Court finds for the Plaintiff on the Defendant’s counterclaim for Negligent Infliction of Emotional Distress.

Property Damage Claim

The Defendant is seeking compensation for the loss of full use and enjoyment of property, loss of property, and costs of cleaning damaged personal property. The Defendant also seeks damages for pain and suffering, emotional distress, and reimbursement of medical bills. [20]

The Court finds that the Defendant’s claims for loss of full use and enjoyment of the property and emotional distress are duplicative of his claims for breach of the covenant of quiet enjoyment and intentional and negligent infliction of emotional distress, respectively, and have been resolved in other portions of this Decision and Memorandum. Therefore, no additional award of damages will be made.

The Defendant alleges that the mold in the First Unit damaged his clothing and other personal items, and that he incurred expense to clean some of those damaged items. The Defendant submitted photographs of the alleged damage to his clothing, and receipts for replacement or repair costs for those damages. Defendant’s Exhibits A1-24. However, the Court was unable to determine from the photographs or from the Defendant’s testimony the extent of the damage to the clothing and personal items. Accordingly, the Court must find for the Plaintiff on the Defendant’s claim for property damage with respect to the Defendant’s personal property and clothing.

The Defendant further seeks damages for pain and suffering, in addition to reimbursement for medical bills. To the extent the Court has previously ruled on similar claims, the Court finds that the Defendant presented no evidence or testimony of pain and suffering related to the Plaintiff’s actions, nor did he present documentation of medical expenses incurred as a result of the conditions at the Premises or the Plaintiff’s actions. Accordingly, the Court must find for the Plaintiff on the Defendant’s claims of pain and suffering and medical expenses.

M.G.L. c. 93A Claim

The Defendant has alleged that the presence of mold at the Premises violated provisions of M.G.L. c. 93A and the regulations of the Attorney General’s Office related thereto.

Pursuant to the Attorney General’s Consumer Protection Regulations codified at 940 CMR 3.17 (1)(b): “It shall be an unfair or deceptive practice for an owner to:…fail, during the terms of the tenancy, after notice is provided in accordance with M.G.L. c. 111, s.127L, to…(2) maintain the dwelling unit in a condition fit for human habitation; provided, however, that said violation of law was not caused by the occupant or others lawfully upon said dwelling unit…”.

The Court finds that the Plaintiff is subject to M.G.L. c. 93A in that it is in the business of renting residential properties. The Court further finds that the Plaintiff has violated 940 CMR 3.17 in that it failed to maintain the dwelling unit in a condition fit for human habitation. Accordingly, the Court finds that the Plaintiff is subject to statutory damages. The Court therefore awards the Defendant $25.00, plus costs and reasonable attorney’s fees related to the M.G.L. c. 93A claim, for the single violation of M.G.L. c. 93A and the Attorney General’s Regulations at 940 CMR 3.17(1)(b).

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 Court DENIES the Plaintiff’s Motion for Directed Verdict for unpaid rent in the amount of $4,182.77. Judgment enter for the Plaintiff for damages for unpaid rent in the amount of $4,264.00, plus costs.

2. Judgment enter for the Defendant on his implied warranty of habitability claim, but no duplicative damages are awarded.

3. Judgment enter for the Plaintiff on the Defendant’s retaliation claim.

4. Judgment enter for the Defendant on his quiet enjoyment claim in the amount of $3,198.00, plus costs and reasonable attorney’s fees.

5. The Defendant’s claim for negligence is duplicative and no additional damages will be awarded.

6. Judgment enter for the Plaintiff on the Defendant’s claim for misrepresentation (fraud).

7. Judgment enter for the Plaintiff on the Defendant’s claim for intentional infliction of emotional distress.

8. Judgment enter for the Plaintiff on the Defendant’s claim for negligent infliction of emotional distress.

9. The Defendant’s claim for property damage with respect to the loss of enjoyment of the Premises and emotional distress is duplicative and no additional damages will be awarded.

10. Judgment enter for the Plaintiff on the Defendant’s claim for property damage to his clothing.

11. Judgment enter for the Plaintiff on the Defendant’s claim for pain and suffering.

12. Judgment enter for the Defendant on his M.G.L. c. 93A claim in the amount of $25.00, plus costs and reasonable attorney’s fees.

13. The foregoing order for judgment paragraphs 1 through 12 result in a net judgment for the Plaintiff for damages in the amount of $1,041.00, plus costs.

14. 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.

cc: Stephen M. Scolnick, Esq.

Daniel A. Capodilupo, Esq.

End Of Decision

HOUSING COURT

Abington Glen Apartments PLAINTIFF v.Harold V. Guy

DEFENDANT

Docket # Docket No. 07-CV-01079, 07-SP-05004

Parties: Abington Glen Apartments PLAINTIFF v.Harold V. Guy

DEFENDANT

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: December 30, 2008

MEMORANDUM OF DECISION ON DEFENDANT’S MOTION FOR EXPERT WITNESS FEES

These consolidated actions commenced with a claim filed by the Plaintiff, Abington Glen Apartments (“Abington Glen” or “Plaintiff”) against the Defendant Harold V. Guy (“Guy” or “Defendant”) for possession and unpaid rent. The Defendant filed an Answer and Counterclaims alleging adverse conditions at the Premises and seeking unspecified damages. This Court, Edwards, J., conducted a trial on the matter, which included expert testimony on behalf of the Defendant by Andrew Porvitola, a mold expert employed by an environmental consulting company. Following trial, this Court, Edwards, J., allowed the Plaintiff’s Motion for Directed Verdict and awarded the Plaintiff unpaid rent in the amount of $4,264.00, plus costs. The Court further found for the Defendant on his counterclaims in the amount of $3,223.00 plus costs and reasonable attorney’s fees.

The Defendant has subsequently filed this Motion, in which he seeks an award of expert witness fees related to the testimony of Andrew Porvitola in the amount of $1,070.00. M.G.L. c. 262, s.29 provides, in pertinent part: “The fees for attending as a witness before the general court, the supreme judicial court, the superior court, the land court, a probate court or court of insolvency, a district court, county commissioners, a trial justice, a referee, an arbitrator, the division of industrial accidents or the board of conciliation and arbitration, or on any other occasion for which no express provision is made…shall be six dollars a day, and ten cents a mile for travel out and home…Each witness shall certify in writing the amount of his travel and attendance.” In the absence of a contractual provision, statute, or stipulation, the recovery of expert witness fees is limited by M.G.L. c. 262, s.29. Waldman v. American Honda Motor Co., Inc., 413 Mass. 320, 322 (1992); Johnson v. Modern Continental Construction Co., Inc., 49 Mass. App. Ct. 545, 551 (2000).

M.G.L. c. 93A(4) provides, in pertinent part: “[I]f the Court finds in any action commenced hereunder that there has been a violation of section 2, the petitioner shall, in addition to other relief provided for by this section and irrespective of the amount in controversy, be awarded reasonable attorney’s fees and costs incurred in connection with said action.” M.G.L. c. 93A s.9(4). Further, “reasonable expert witness fees should normally be recoverable in a c. 93A case in order to vindicate the policies of the act.” Linthicum v. Archambault, 397 Mass. 381, 389 (1979).

In its Decision dated June 13, 2008, this Court, Edwards, J., found that the Plaintiff violated M.G.L. c. 93A and 940 C.M.R. 3.17 by failing to maintain the Premises in a condition fit for human habitation. Andrew Porvitola, the Defendant’s expert witness,

testified to the presence of mold at the Premises. The Court finds that the expert witness’s testimony was necessary to the Court’s finding on the Defendant’s M.G.L.c. 93A claim and, further, that the expert witness fee is reasonable. Accordingly, the Court shall award the Defendant expert witness fees in the amount of $1,070.00 pursuant to M.G.L.c. 93A(4), nunc pro tunc to June 13, 2008.

cc: Stephen M. Scolnick, Esq.

Daniel A. Capodilupo, Esq.

End Of Decision

HOUSING COURT

Carl and Bernadette Becker v. Maria N. Oliveira

Docket # 08-SP-01074

Parties: Carl and Bernadette Becker v. Maria N. Oliveira

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: June 6, 2008

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

This summary process action was brought by the Plaintiffs, Carl and Bernadette Becker, against the Defendant Maria N. Oliveira[1] (“Oliveira”) for non-payment of rent and possession. The Defendant filed an Answer alleging breach of the implied warranty of habitability and quiet enjoyment. The Defendant further requested reimbursement for excessive heating costs. Both parties appeared pro se.

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

as follows:

The Plaintiff Carl Becker testified that he owns the multi-family building (the “Building”) located at 956 North Main Street in Fall River, MA, with his wife Bernadette Becker. Mr. Becker stated that he and the Defendant executed a tenancy-at-will agreement on December 29, 2007, and that the Defendant moved into Apartment 2 (the “Premises”) in the Building in early January 2008.[2] He further stated that the weekly rent is $175.00, due each Saturday. Mr. Becker went on to testify that the Defendant had made a payment of $350.00 in late January 2008, representing rent for the first two weeks of the month. Mr. Becker stated that Oliveira had not paid rent for the weeks of January 13, 2008 through the trial on April 3, 2008, for total rent due in the amount of $1,925.00. He was credible in his testimony.

The Plaintiffs served the Defendant with a Fourteen-Day Notice to Quit on February 22, 2008, alleging unpaid rent in the amount of $1,050.00 for the weeks of January 13, 2008, through February 23, 2008. Plaintiffs’ Exhibit 3. The Plaintiffs served the Defendant with a Summons and Complaint on March 10, 2008, alleging unpaid rent in the amount of $1,400.00. At trial, the Plaintiffs moved to amend the Summons and Complaint to add rent for the weeks of March 9, 2008 through March 29, 2008 in the amount of $525.00, for a total due of $1,925.00. The Court allowed the Amendment.

The Defendant testified that she had attempted to tender some of the back rent but that the Plaintiffs had refused to accept the payment.[3] She stated that she received a letter from the Plaintiffs dated February 10, 2008, in which they confirmed the rental agreement between the parties and demanded payment of $700.00 for the last two weeks of January and first two weeks of February 2008. Defendant’s Exhibit A. The Plaintiffs further demanded payment of a $700.00 security deposit. Defendant’s Exhibit A. She was credible in her testimony.

The Court finds that the Plaintiffs have proven their prima facie case for damages against the Defendant for unpaid rent in the amount of $1,925.00, plus costs, calculated as follows: $175.00 unpaid weekly rent for eleven (11) weeks, from January 13, 2008 through March 29, 2008. The Defendant presented her defenses and counterclaims.

Defendant Maria N. Oliveira described the conditions in the Premises. She testified that she advised the Plaintiffs of a lack of heat in the bedrooms and problems with various interior and exterior doors throughout the Premises, but that the Plaintiffs failed to make any repairs. She did not present any evidence or documentation of such notice to the Plaintiffs.

Oliveira stated that she contacted the Fall River Board of Health (the “Board of Health”) and, as a result, an inspector from the Board of Health conducted an inspection of the Premises on March 3, 2008. Defendant’s Exhibit B. As a result of that inspection, the Plaintiff Carl Becker was ordered to immediately correct the following violations: 1) glass to entrance door is missing on first level exterior door (105 C.M.R. 410.500); 2) inadequate heat to apartment bedrooms (105 C.M.R. 410.351); 3) missing handrail on the stairway leading to upstairs bedroom (105 C.M.R. 410.503); and 4) an inadequate second means of egress for upstairs bedroom (105 C.M.R. 410.451). Defendant’s Exhibit B. Furthermore, the Board of Health ordered the Plaintiff to make the following repairs within thirty

days of the date of inspection: 1) exterior doorbells not working (105 C.M.R. 410.351); 2) door frame to bedroom missing (105 C.M.R. 410.500); 3) kitchen sink not draining (105 C.M.R. 410.500); 4) missing bottom window frame in the north bedroom (105 C.M.R. 410.501); 5) missing or off-track closet doors (105 C.M.R. 410.500); 6) entrance door to apartment cracked or not secured (105 C.M.R. 410.500); 7) unfinished door frames (105 C.M.R. 410.500); 8) missing doors and unfinished walls, ceiling, and closets in upstairs bedroom (105 C.M.R. 410.750); and 9) failure to post owner’s name, address, and phone number on exterior of building or in hallway (105 C.M.R. 410.482). Defendant’s Exhibit B.

The Defendant presented photographs of the various conditions at the Premises. Defendant’s Exhibit C(1-13). She testified that the photographs were taken the week of March 26, 2008. She was credible in her testimony.

The Plaintiff Carl Becker acknowledged receipt of the Board of Health inspection report. Defendant’s Exhibit B. He stated that the repairs to the handrail in the front stairwell and the doorbells were complete, as were the repairs to the glass in the front exterior door. He further testified that he had repaired the drain in the kitchen sink, but that it continued to leak slightly. Mr. Becker stated that he was unable to complete the repairs to the entrance door to the Premises, as the Defendant had denied him access. He was not specific as to repair dates, nor did he state whether all the conditions listed on the March 3, 2008 Board of Health inspection report had been repaired prior to the trial. The Defendant disputed the Plaintiff’s testimony regarding access to the Premises, but otherwise confirmed the Plaintiff’s testimony on the repairs that had been completed. The Plaintiff was credible in his testimony.

The Defendant has alleged in her counterclaim that the Premises had conditions that would warrant a finding that the Plaintiffs had breached the implied warranty of habitability. The implied warranty of habitability is the landlord’s promise that the premises will meet certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the tenant is in material violation of the minimum standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). A landlord must have actual or constructive notice of the condition creating the violation. McKenna v. Begin, 3 Mass.App.Ct. 168 (1975). Damages are assessed from the date the landlord had notice of the

condition of disrepair. Berman & Sons v. Jefferson, 379 Mass. 196 (1979). 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 Plaintiffs breached the implied warranty of habitability. The Court finds that there were numerous adverse conditions at the Premises during the Defendant’s tenancy, including lack of adequate heat and a second means of egress, broken handrails, missing glass in exterior doors, unfinished and missing door frames and window frames, and a clogged kitchen sink. Defendant’s Exhibit B. Further, the Court finds that the Plaintiffs had actual knowledge of the conditions through the Fall River Board of Health inspection report dated March 3, 2008. Defendant’s Exhibit B. Accordingly, the Defendant is entitled to a rent abatement in the amount of $319.04, calculated as follows: $24.93/day[4] x 40% = $9.97 x 32 days[5] = $319.04.

The Court further finds that, as the Plaintiffs were not notified by the Defendant of the conditions prior to the time the Defendant was in arrears in her rent, the Defendant is not entitled to a defense to possession pursuant to M.G.L. c. 239, s.8A, p.2.

Quiet Enjoyment

M.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…” A landlord violates M.G.L. c. 186, s.14 where he had notice, or reason to know of the serious condition in the tenant’s apartment, and failed to take appropriate corrective measures. Al Ziab v. Mourgis, 424 Mass. 847, 850-851 (1997); Cruz Management Co., Inc. v. Thomas, 417 Mass. 782 (1994).

The Court finds that the Plaintiffs failed to promptly and adequately address the conditions at the Premises following notice from the Fall River Board of Health. The Plaintiff testified that some items were repaired, including the handrails in the stairwell and replacement of the glass in the front exterior door. He did not testify, however, as to when those repairs were completed, nor did he state that any of the remaining conditions had been repaired prior to trial, including the leaking kitchen sink. The Court therefore finds that the following conditions were outstanding at the time of trial: 1) inadequate heat to apartment bedrooms (105 C.M.R. 410.351); 2) an inadequate second means of egress for upstairs bedroom (105 C.M.R. 410.451); 3) exterior doorbells not working (105 C.M.R. 410.351); 4) door frame to bedroom missing (105 C.M.R. 410.500); 5) missing bottom window frame in the north bedroom (105 C.M.R. 410.501); 6) missing or

off-track closet doors (105 C.M.R. 410.500); 7) entrance door to apartment cracked or not secured (105 C.M.R. 410.500); 8) unfinished door frames (105 C.M.R. 410.500); 9) missing doors and unfinished walls, ceiling, and closets in upstairs bedroom (105 C.M.R. 410.750); 10) failure to post owner’s name, address, and phone number on exterior of building or in hallway (105 C.M.R. 410.482); and 11) leaky kitchen sink (105 C.M.R. 415.500). Defendant’s Exhibit B. Accordingly, the Court finds for the Defendant on her claim for breach of the covenant of quiet enjoyment.

In calculating the damages due the Defendant for Plaintiffs’ breach of the covenant of quiet enjoyment, the Court must under M.G.L. c. 186, s.14 compare the Defendant’s actual damages versus the statutory damages permitted under the statute.[6] The Defendant presented no evidence of actual damages. Therefore, the Defendant is entitled to statutory damages of $2,274.99, computed by trebling the monthly rent of $758.33.[7] As computed pursuant to the statute, the Court must award the greater amount to the Defendant for her damages; accordingly, the Court finds in favor of the Defendant for the Plaintiffs’ breach of quiet enjoyment in the amount of $2,274.99.

M.G.L. c. 239, s.8A p.5 provides: “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.” Pursuant to the fifth paragraph of M.G.L. c. 239, s.8A, the Court finds the Defendant is entitled to possession of the Premises, as the amount due the Defendant is $2,274.99 as to Plaintiffs’ breach of quiet enjoyment and the amount due the Plaintiffs is $1,925.00 for non-payment of rent, plus costs.

The Plaintiffs shall cure all remaining violations as set forth in the inspection report from the Board of Health regarding the Premises and Building dated March 3, 2008, Defendant’s Exhibit B, within twenty (20) days from the date that judgment enters in this case. All work is to be done with appropriate permits at the Plaintiffs’ sole expense and shall be completed in a good and workmanlike manner as set forth herein with adequate reasonable notice to Defendant. Defendant shall permit Plaintiffs access to the Premises upon such notice. Abrams v. Factory Mutual Liability Insurance Company, 298 Mass. 141, 143 (1937); Mass. Highway Dep’t v. Walsh Constr. Co., No 015746BLS (Mass.Super.Ct. 2003)

Excessive Heating Costs

The Defendant alleges that she incurred excessive heating costs as a result of the lack of adequate heat in the Premises. The Defendant failed to present any credible evidence or testimony in

support of this claim. Accordingly, the Court finds for the Plaintiffs on the Defendant’s claim for excessive heating 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 damages for unpaid rent in the amount of $1,925.00, plus costs in the amount of $185.00.

2. Judgment enter for the Defendant on her claim for breach of the implied warranty of habitability counterclaim in the amount of $319.04, but no duplicative damages are awarded.

3. Judgment enter for the Defendant on her counterclaim for breach of the covenant of quiet enjoyment pursuant to M.G.L. c. 186, s.14 in the amount of $2,274.99.

4. The foregoing order for judgment paragraphs 1 through 3 result in a net judgment for the defendant in the amount of $164.99.

5. Judgment enter for the Defendant for possession pursuant to the fifth paragraph of M.G.L. c. 239, s.8A.

6. The Plaintiffs shall cure all remaining violations as set forth in the Board of Health inspection report dated March 3, 2008, Defendant’s Exhibit B, within twenty (20) days from the date that judgment enters. Plaintiffs shall give Defendant reasonable notice prior to making repairs and Defendant shall give Plaintiffs access to the Premises.

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

JUDGMENT

Judgment for the Plaintiffs for unpaid rent in the sum of $1,925.00, plus costs of $185.00.

Total counterclaim damages for Defendant in the sum of $2,274.99; resulting in a net judgment award to Defendant of $164.99 as more specifically set forth in paragraphs 2, 3 and 4 of the Court’s Order for Judgment.

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

The Plaintiffs shall further timely comply with the corrective measures referenced in paragraph 6 of the Court’s Order for Judgment.

Accordingly, judgment enters at 10:00 a.m. this 9th day of June 2008.

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[1] At trial, the Court allowed the Plaintiffs’ Motion to Amend the Defendant’s name on the Notice to Quit and Summons and Complaint. The Defendant made no objection to the amendment.

[2] Mr. Becker testified that the Premises was not completed at the time the Defendant wanted to move in, but that he agreed to let the Defendant move into the Premises in early January 2008. In exchange for her early occupancy, the Defendant’s brother was to perform light carpentry and painting at the Premises, and the Defendant’s rent was reduced by $100.00 per month. There was no testimony as to the nature of the carpentry or painting, or whether it was completed.

[3] As the Defendant did not state when she attempted to pay the back rent, nor the amount she attempted to tender, the Court cannot find that she cured the Notice to Quit served on February 22, 2008.

[4] The per diem rental amount is calculated as follows: $175.00 x 52 = $9,100.00 ? 365 = $24.93.

[5] The period of March 3, 2008, the date of the Board of Health Inspection, through April 3, 2008, the date of trial, consists of 32 days.

[6] M.G.L. c. 186, s.14 in relevant part: “Any person who commits any act in violation of this section shall also 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.”

[7] The monthly rent is calculated as follows: $175.00 per week x 52 weeks = $9,100.00 ? 12 months = $758.33 per month.

End Of Decision

HOUSING COURT

Gregorio J. Caraballo v. Shawn Souto

Docket # 08-SP-01183, 08-CV-00106

Parties: Gregorio J. Caraballo v. Shawn Souto

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: August 20, 2008

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

These consolidated cases represent a summary process action brought by the Plaintiff, Gregorio J. Caraballo (“Caraballo”), against the Defendant, Shawn Souto (“Souto”), for possession and unpaid rent, with a related application for injunctive relief brought by Souto against Caraballo. In his request for injunctive relief, Souto seeks restoration of utility services, the return of his personal belongings, and an Order restraining the Plaintiff from entering the Defendant’s apartment without reasonable notice.[1] The Defendant filed an Answer and Counterclaims alleging the following: retaliation, breach of the implied warranty of habitability, breach of quiet enjoyment, intentional infliction of emotional distress, and violation of M.G.L. c 93A. The parties appeared pro se at trial.[2] For purposes of discovery and trial, the Court consolidated these matters on April 4, 2008.[3]

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

The Plaintiff is the owner and also a resident of a four-family building located at 123 Maxfield Street in New Bedford, MA (the “Building”). The Plaintiff testified that the Defendant commenced his tenancy in Apartment 1 North in the Building (the “Premises”) in September 2007. The Defendant did not pay either a last month’s rent or a security deposit at the commencement of the tenancy. The Plaintiff testified that the monthly rent, due on the first of each month, is $520.00. He noted that the Defendant had not paid rent for the months of January 2008 through April 2008 at the rate of $520.00 per month, for a total currently due of $2,080.00. He was credible in his testimony.

The Plaintiff served the Defendant with a thirty-day Notice for Possession on January 16, 2008 with a vacate date of February 29, 2008. Plaintiff’s Exhibit 1. The Notice for Possession also indicated rent due as of January 16, 2008 in the amount of $520.00. Plaintiff’s Exhibit 1. The Plaintiff served the Defendant with the Summons and Complaint on March 14, 2008, with an account annexed of $1,560.00.

The Defendant acknowledged that he had the rent money but has not offered it to the Plaintiff. He stated that the rent is usually paid through an arrangement with Social Security, but he failed to indicate to the Court the reason the rent has not been paid.

A landlord has the right to possession pursuant to M.G.L. c. 239, s.1. The Court finds that the Plaintiff has proven his prima facie case for possession against the Defendant and damages in the amount of $2,080.00, plus costs, calculated as follows: unpaid rent for the months of January 2008 through April 2008 at the rate of $520.00 per month. The Defendant presented his defenses and counterclaims.

The Defendant’s Counterclaims

where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to a defense to possession only if: (1) the landlord knew or should have known of the 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 as to conditions in the Premises. He testified that on or about February 29, 2008 there was no hot or cold water in the Premises and that the water was not turned back on until March 14, 2008. The Defendant also testified that on February 29, 2008, the Plaintiff removed all of the Defendant’s personal belongings from the Premises and placed them outside in the rear yard. The Court finds the Defendant credible on this matter as on that date, he filed an application for a Temporary Restraining Order against the Plaintiff in case #08-CV-00106. In that civil action, heard by Edwards, J., Souto requested that the Court order Caraballo to desist and refrain from: “1. Evicting the Plaintiff from the premises. 2. Failing to restore the Plaintiff’s personal belongings to the above premises. 3. Failing to provide hot and cold water in the bathroom at the above premises. 4. Entering the Plaintiff’s apartment without giving reasonable notice at reasonable times at the above premise.” The Defendant’s request for a Temporary Restraining Order was granted on that date.[4]

The Plaintiff admitted that the water to the Defendant’s Premises was shut off during the Defendant’s tenancy. He stated that he had shut off the water to the Premises because the Defendant, on or about February 11, 2008, had left hot water running in the bathtub of his unattended apartment. The Plaintiff continued by stating that the overflowing water caused a flood in the apartment and in the basement of the Building. He stated that he wrote and delivered a letter to the Defendant concerning this problem. Plaintiff’s Exhibit 2. Caraballo further testified that the Defendant did not respond to his initial letter and that he had no direct conversations with the Defendant between January 16, 2008 and February 29, 2008. He completed this portion of his testimony by indicating that he wrote and delivered another letter to the Defendant on February 28, 2008 in which he again requested that the Defendant contact him. Plaintiff’s Exhibit 3.

The Plaintiff stated that when he removed the Defendant’s personal belongings from the Premises, he stored them either in the basement of the Building or in the outside yard. He said that the basement was intermittently locked. The Court found his testimony credible.

The Implied Warranty of Habitability

The implied warranty of habitability is the landlord’s promise that the premises will meet certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the tenant is in material violation of the minimum standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). A landlord must have actual or constructive notice

The Court finds, based upon the clear and express testimony of the parties, that there was a material breach of the implied warranty of habitability as to the Premises. The Court finds that the intentional interruption of water to the Defendant’s Premises for the period February 29, 2008 through March 14, 2008 rendered the Premises uninhabitable. Anderson v. Andre, Southeastern Housing Court Docket No. 05-SP-00035 (Feb. 25, 2005)(Chaplin, F.J.). Accordingly, the Defendant is entitled to a rent abatement in the amount of $256.50, or one hundred per cent (100%), for the lack of water for the period of February 29, 2008 through March 14, 2008, calculated as follows: $17.10/day[5] x 100% = $17.10 x 15 days[6] = $256.50.

Quiet Enjoyment

M.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…” A landlord violates M.G.L. c. 186, s.14 where he had notice, or reason to know of the serious condition in the tenant’s apartment, and failed to take appropriate corrective measures. Al Ziab v. Mourgis, 424 Mass. 847, 850-851 (1997); Cruz Management Co., Inc. v. Thomas, 417 Mass. 782 (1994).

In calculating the damages due the Defendant for Plaintiff’s breach of the covenant of quiet enjoyment, the Court must under M.G.L. c. 186, s.14 compare the Defendant’s actual damages versus the statutory damages permitted under the statute.[7] The Defendant presented no evidence of actual damages. Therefore, the Defendant is entitled to statutory damages of $1,560.00 computed by trebling the monthly rent of $520.00. As computed pursuant to the statute, the Court must award the greater amount to the Defendant for his damages; accordingly, the Court finds in favor of the Defendant for the

Plaintiff’s breach of quiet enjoyment in the amount of $1,560.00.

Intentional Infliction of Emotional Distress

The Defendant contends that the Plaintiff’s actions as set forth in his answer and counterclaims constitute intentional infliction of emotional distress. In order to prove a claim for intentional infliction of emotional distress, 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 intended to inflict emotional distress upon the Defendant.[8] The Court further finds that the Defendant failed to present any evidence or testimony that the Defendant sustained emotional distress as a result of the Plaintiff’s actions. Accordingly, the Court finds for the Plaintiff on the Defendant’s claim for intentional infliction of emotional distress.

Retaliation

M.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 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.” “Clear

and convincing”evidence means evidence 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).

Similarly, M.G.L. c. 186, s.18 sets forth in pertinent part a right of action for a tenant as to retaliation by a landlord: “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 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 tenants engaging in, or the belief that tenants had engaged in, activities protected under this section.” M.G.L. c. 186, s.18.

The Court finds that, on March 14, 2008, the Plaintiff initiated this Summary Process action by serving the Defendant with a Summons and Complaint. The Court finds that the Defendant filed an application for a Temporary Restraining Order against the Plaintiff on February 29, 2008, seeking the return of Souto’s personal belongings, the restoration of the water supply to the Premises, and prohibiting Caraballo from either entering the Premises without permission or evicting Souto without due process of law. The Court accordingly finds that the Defendant engaged in statutorily protected activity within six (6) months of the service of the Summons and Complaint, and therefore is entitled to the statutory presumption of retaliation pursuant to M.G.L. c. 186, s.18 or M.G.L. c. 239, s.2A.

The Court further finds, on the unique facts of this case, that the Plaintiff has rebutted the statutory presumption of retaliation by establishing with clear and convincing evidence that he did not retaliate against the Defendant. The Court finds, based upon Caraballo’s testimony, that the Plaintiff’s sole reason for initiating the Summary Process action was to terminate the

Defendant’s tenancy as it appeared to the Plaintiff that the Defendant had abandoned the Premises. Plaintiff’s Exhibits 2 and 3. The Court finds that the Plaintiff would have taken this action, in the same manner and at the same time the action was taken, even if the Defendant had not complained about conditions in the Premises. Accordingly, the Defendant is not entitled to a defense to possession under M.G.L. c. 239, s.2A, or to damages under M.G.L. c. 186, s.18.

M.G.L. c. 93A

The Defendant has alleged that the Plaintiff has violated certain provisions of M.G.L. c. 93A and the regulations of the Attorney General’s Office related thereto. The Court finds that the Plaintiff is in the business of renting apartments, rents three of four units in the Building, and therefore is subject to M.G.L. c. 93A.

Pursuant to the Attorney General’s Consumer Protection Regulations codified at 940 CMR 3.17 (1)(b): “It shall be an unfair or deceptive practice for an owner to…[f]ail, during the terms of the tenancy…to: 1. remedy a violation of law in a dwelling unit which may endanger or materially impair the health, safety, or wellbeing of the occupant, or 2. maintain the dwelling unit in a condition fit for human habitation; provided, however, that said violation of law was not caused by the occupant or others lawfully upon said dwelling unit.”

In any action commenced under M.G.L. c. 93A, if the Court finds for the petitioner, “recovery shall be in the amount of actual damages or twenty-five dollars, whichever is greater, up to three but not less than two times such amount if the court finds that the use or employment of the act or practice was a willful or knowing violation of said section 2 or that the refusal to grant relief upon demand was made in bad faith with knowledge or reason to know that the act or practice complained of violated section 2.” M.G.L. c. 93A, s.9(3). Further, “[I]f the Court finds in any action commenced hereunder that there has been a violation of section 2, the petitioner shall, in addition to other relief provided for by this section and irrespective of the amount in controversy, be awarded reasonable attorney’s fees and costs incurred in connection with said action.” M.G.L. c. 93A, s.9(4).

The Court finds that the Plaintiff has violated 940 CMR 3.17 in that he failed to restore water service to the Premises after he had shut off the water supply to the Premises. Accordingly, the Court finds that the Plaintiff is subject to statutory damages of $25.00 for each violation. The Court therefore awards the Defendant $25.00 for the violations of M.G.L. c. 93A and the Attorney General’s Regulations at 940 CMR 3.17(1)(b). The Court further finds that the Plaintiff’s failure to restore water service to the Premises was willful and knowing, and accordingly trebles the statutory damage award to $75.00.

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 possession and damages for unpaid rent in the amount of $2,080.00 calculated as follows: $520.00 unpaid rent for the months of January through April 2008, plus costs.

2. Judgment enter for the Defendant on his implied warranty of habitability counterclaim, but no duplicative damages are awarded.

3. Judgment enter for the Defendant on his quiet enjoyment claim in the amount of $1,560.00.

4. Judgment enter for the Plaintiff on the Defendant’s intentional infliction of emotional distress counterclaim.

5. Judgment enter for the Plaintiff on the Defendant’s retaliation counterclaim.

6. Judgment enter for the Defendant on his M.G.L. c. 93A counterclaim for statutory damages of $25.00, trebled to $75.00. 7. The foregoing Order for Judgment paragraphs 1 through 6 result in a net monetary judgment for the Plaintiff in the amount of $445.00, plus possession and costs.

8. Plaintiff Gregorio J. Caraballo is permanently enjoined from entering Shawn Souto’s Premises without reasonable written notice except in the case of an emergency.

9. Plaintiff Gregorio J. Caraballo is permanently enjoined from failing to provide both hot and cold water service to the Premises in compliance with the requirements of the State Sanitary Code.

10. Defendant Shawn Souto is permanently enjoined from contacting tenant Linda O’Leary, except in case of emergency, so long as either individual remains a tenant in the Building.

11. Defendant Shawn Souto is permanently enjoined from using excessive quantities of hot water on the Premises and shall not leave water running in the Premises when the Premises is unattended.

12. Execution shall issue thirty (30) days from the date that judgment enters.

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[1] On February 29, 2008, the Court, Edwards, J., allowed Shawn Souto’s request for a Temporary Restraining Order. The Court prohibited the Defendant in that matter, Greg Carvalo [sic] from evicting Souto from the Premises located at 123 Maxfield Street, Apt. 1N, in New Bedford, MA and, further, from entering Souto’s apartment without reasonable notice. The Court further ordered Carvalo [sic] to return Souto’s personal belongings to the Premises and to provide hot and cold water in the bathroom at the Premises. On March 11, 2008, the Court, Chaplin, F.J, converted the Temporary Restraining Order to a Preliminary Injunction pending the trial in the Summary Process action. Souto has now requested that the Court convert the March 11, 2008 Preliminary Injunction to a Permanent Injunction.

[2] The Defendant filed a timely Answer and Counterclaim pro se. He subsequently retained counsel, who filed an Amended Answer and Counterclaim with the Court. The Defendant’s Amended Answer and Counterclaim was allowed by this Court, without objection, on April 4, 2008. Counsel subsequently withdrew from representation of the

Defendant on April 11, 2008.

[3] The Court, in its April 4, 2008 Order, also prohibited Souto from having any contact with either the Plaintiff or with Linda O’Leary, a tenant in the Plaintiff’s Building, except in case of emergency.

[4] After hearing, the Temporary Restraining Order was continued as a Preliminary Injunction by Chaplin, F.J. on March 11, 2008 pending a trial on the summary process action. This Court, following the trial on April 11, 2008, continued the Preliminary Injunction pending this Decision.

[5] The per diem rental rate is calculated as follows: $520.00 monthly rent x 12 = $6,240.00/year ? 365 days = $17.10/day.

[6] The period of February 29, 2008 through March 14, 2008 consists of 15 days.

[7] M.G.L. c. 186, s.14 states, in relevant part: “Any person who commits any act in violation of this section shall also 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.”

[8] The Plaintiff testified credibly that he believed the Defendant had abandoned the Premises.

End Of Decision

HOUSING COURT

Gregorio J. Caraballo v. Linda O’Leary and Brian Houghton

Docket # 08-SP-02022

Parties: Gregorio J. Caraballo v. Linda O’Leary and Brian Houghton

Judge: /s/WILBUR P. EDWARDS, JR.

ASSOCIATE JUSTICE

Date: June 17, 2008

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

The Plaintiff, Gregorio J. Caraballo (“Caraballo”), brought this action against the Defendants, Linda O’Leary and Brian Houghton, for possession and unpaid rent. The Defendant Linda O’Leary (“O’Leary) filed an Answer and counterclaim alleging the Plaintiff threatened her to shut off her utilities. The parties appeared pro se at trial. The Defendant Brian Houghton 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 Plaintiff is the owner and also a resident of a four-family building located at 123 Maxfield Street in New Bedford (the “Building”). The Plaintiff testified that the Defendants’