I am writing this because twenty nine years ago in Nei v Burley the Supreme Judicial Court of Massachusetts did something which was very anti-Independence Day. They ruled that 93A did not come with the right to a jury. They were wrong. It should come with the right to a jury because it is basically a legal claim not an equitable claim as the SJC wants us to believe. Legal claims where the Defendant is asking for double and triple damages and attorney fees must go the Jury per MA Constitution where the jury can sort out the facts.
What the SJC did 29 years ago was a grab for power that was aggressive and naked. Their internal thinking could have gone something like this: “Gee, we are not thrilled that cases are decided by 12 uneducated people picked randomly. We know the law better than them and we’ve paid our dues. But the right to a Jury is in the damn Constitution. So…we’ll just leave ourselves a little backdoor and say that if there is 93A attached to the claim in question (and we know that in most cases it would be) then we have the right to just “disagree” with the verdict rather that meet the high standard of overturning the verdict.”
There is a bill on this issue that addresses this loophole – bill H489:
It is a very simple bill and here it is in its entirety:
” Section 1. Section 2 of chapter 93A of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by adding the following paragraph:- (d) All legal claims including but not limited to double and triple damages and attorney fees under this chapter shall come with a right to a jury trial.
Section 2. Paragraph (a) of section 9 of chapter 93A of the General Laws as so appearing, is hereby amended by adding the following sentence:- A technical violation of a legally protected interest alone without an actual and not future or perceived injury would be insufficient to bring an action under this section.”
The first section re-affirms the right to a jury and the second section re-affirms the requirement for an actual injury. This addresses the tendency in some courts especially Housing Court to award huge damages under 93A for purely theoretical and potential injuries to the Defendant. I had a friend who after 2 years of being dragged in and out of court was forced to settle for $140,000 over mostly potential not actual injuries to the tenant. The language in the Lease was never enforced and could not have been enforced because the tenancy was over and he was still sentenced to work for 2-3 years without a salary most likely most of it going to some lawyer who was smart enough to use this loophole in the law. The SJC in Hershenow already said that actual injury is required and now what is needed is the Legislature to re-affirm that by enacting the above clarifications to 93A.
The other bill that I want to talk about is S779
It is the best, clearest and simplest bill out of the many Mandatory Rent Escrow Bills. It will level the playing field between landlords and tenants by making Tenant Retaliation illegal. Currently Retaliation against Tenants is illegal but Retaliation against Landlords is legal. This loophole must be closed as it unnecessarily wastes tax-payer money and creates unnecessary confrontations between landlords and tenants.
I am not going to repeat the arguments again here. I would simply say that we are asking the Legislature simply to acknowledge that it is wrong for a tenant who calls the Health Board in bad faith (because she received a Notice from us or a letter or we said something to her that she didn’t like or because she ran out of money for the rent) to then try to use Habitational Counterclaims against us in Court based on the same bad-faith call to the Health Board. That kind of retaliatory behavior can be nipped in the bud by simply requiring that the tenant prove that they have the full rent by placing it in an escrow account. They are supposed to have the full rent anyway. A judge will decide later if they are entitled to any of it.
There are already 4 situations where tenants are prohibited from raising Habitational Counterclaims. We need to add a 5th to close this abusive loophole:
The tenant cannot raise Habitational Counterclaims if:
1. The tenant was behind in their rent before the landlord knew about the poor condition
2. The tenant caused the poor condition
3. The tenant lives in a motel, hotel, lodging or rooming house for less than 3 months
4. The poor conditions cannot be fixed without the tenant moving out (except for lead paint)
5. The tenant or occupant did not deposit with the clerk all rent due prior to asserting a defense of rent withholding and counterclaims against landlord using code violations and then did not continue to pay the contractual amount of rent into escrow with the clerk for each month until final disposition
Please enact both H489 and S779 into law.
I want to thank Rep. Rosa and Sen. Flanagan for understanding the issues and filing these bills.
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