Tonight are the Oscars…And the Winner is…judge Robert Fields from Western Housing Court!
Judge of the Year – Judge Robert Fields, Western Housing Court
MY JURY CASE FROM ABOUT 13 YEARS AGO
About 13 years ago I had a case in Western Housing Court which reached a Jury with judge Dina Fein from Western Housing Court (I heard she retired when Covid started, I hope she didn’t let the door hit her on the way out. Rest in Peace…during your retirement, judge Fein, you have earned it).
The tenant lawyers asked for over $125,000 from what I remember. My insurance company wanted to settle for tens of thousands with the well-known tenant Springfield law firm which represented the tenant but I was young and crazy enough to tell them I have done nothing wrong and not to settle. So they withdrew because they did not want to face the jury.
I faced the Jury and the skilled tenant attorney alone in a 4 day Jury Trial. The Jury decided 100% in my favor on all claims given to them, I think they were 5 or 6 claims – they ruled that there was no Breach of Warranty of Habitability, no Breach of Quiet Enjoyment, no Emotional Distress, no Retaliation and no Discrimination, but the judge had cleverly reserved the 93A claim for her to decide after the Jury. I wrote a book about what I learned. I was told I made a bit of history there as the first non-lawyer in that court to go to a Jury and win. She had to base 93A on something so she based it on the Breach of Warranty of Habitability claim, a claim which the jury had already rejected! Regardless, without technically “overruling” the Jury because she knew she could not reach the high legal bar to actually overrule a Jury, she decided 93A against me anyway and doubled it or tripled it, I don’t remember, and awarded $1000 attorney fees to this law firm (even after they lost all jury claims!), who were often in her court room. In America you can only have ONE fact-finder on a claim and the Jury had already ruled there was no Breach of Warranty of Habitability so the judge was not allowed to base 93A on something that was already eliminated by the Jury… So clearly she did the wrong thing but I did not appeal. I was exhausted plus why risk it further. Plus the total money was about $3000 and was not paid by me but by someone else so whatever.
(On a scary side note here I recently learned that this judicial usurpation of power away from the American Jury is going on in Criminal Cases as well where a jury convicts a person of a lesser crime but acquits them of something more serious using the “beyond a reasonable doubt standard” and then a judge, behind the back of the Jury, rules that the person committed the crime on which they were acquitted by the Jury and adds another 10 years or so to the sentence. And the judge is using the “more likely than not” standard in a criminal case!!! It’s really scandalous that this is going on in America. The Supremes have been asked multiple times to change that but it’s hard to give up sweet intoxicating judicial power, isn’t it? Last month this issue was again raised in front of the Supreme Court and hopefully this time they will do the right thing. Here is an article by the Associated Press on it – Supreme Court Asked to Bar Punishment for Acquitted Conduct”)
I BECAME A MEMBER OF LANDLORD GROUPS
At that time this was a big deal to me even though I now understand it’s nothing compared to the abuse that is happening every day in Criminal Court on a much more consequential scale. I found this going-behind-the-back-of-the-Jury quite abusive and it got me into trying to learn as much as I could about 93A and lead me to eventually filing several bills to fix it with the help of my Legislator at the time – 1) that 93A should only apply if there is an actual injury and 2) that 93A should be given to the jury in cases where the dispute was about money or property. The bills did not become law but the SJC several years later in Hershenow made one of them law – there can be no 93A without an actual injury. It also lead me to enroll into several landlord groups – the RHAGS Springfield group and the WPOA in Worcester (the parent of MassLandlords.net).
After I enrolled in these groups I started going to their monthly dinners and their attitude struck me as being quite indifferent about the situation and there was no appetite to confront a sitting judge. The attitude basically was “it happened to you but it’s not going to happen to me” and that 93A isn’t a big issue for landlords. It took me about a year just to convince them to sign a letter to be sent to the legislature about 93A, just a simple letter.
MAYBE JUDGE FIELDS DOESN’T LIKE ME OR IS HE LIKE THAT WITH EVERY OTHER LANDLORD?
I can see why judge Fein may not like me – I made her look bad. Who do I think I am, waltzing into her courtroom, not even a lawyer, a total amateur and winning with the Jury? Of course no thought given that maybe this case should have never been allowed to go by her this far to begin with. But the other judge (at the time there were only two judges), judge Fields, I felt also started behaving strangely. Over the years I had several cases with judge Fields where I thought he was acting in an exceptionally harsh, retaliatory manner. I even filed a complaint against him with the Judicial Commission many years ago. If he doesn’t like me I can only assume it’s because I started talking about my jury case and joined landlord groups and tried to organize them to push back.
I want to make one thing clear – if they dislike me it’s NOT because I am a bad landlord but because I am a landlord who fights back for his rights and for the rights of other landlords. And that’s very unusual and very irritating to them. It’s understandable. They are mini-kings and mini-queens in their courtroom and people like me can’t be tolerated.
MOST RECENT CASE WITH JUDGE FIELDS
Well, last year I had a situation where I was asking a tenant to text me a picture of her National Grid bill so that I can give it to MassSave who is an agent of National Grid and who has contractors insulate the building. (By the way all the other tenants, 44 of them, had already done it, she was the last tenant to be asked). It’s a requirement of National Grid and MassSave. She refused. After months of trying to convince her that it was in her interest to pay less money for heating and cooling I initiated eviction proceedings and when 5 months later it finally reached a judge (judge Fields) he sided with her saying that I cannot evict her when she refuses to provide the required by National Grid information in order for me to get access to my property and insulate it. There is no violation of the lease, he said, her violation is de minimis (trivial) – Fields Decision.
These issues I thought affected all landlords and so I asked MassLandlords, the largest landlord association in MA, to pick up this simple case and appeal it. The current executive director Doug Quattrochi was not interested. So I appealed on my own. I had never filed an appeal before so I thought it doesn’t hurt to learn how to do it anyway.
I never harbored any high hopes that the Appeals court will side with me. By filing an Appeal I just want to remind Western Court that I am not like other landlords turning the other cheek and if I feel they have not followed the law I can and will appeal on my own so to keep that in mind. Of course I always have hope that the Appeals Court will side with me but I realize that they are judges and for them to overturn one of their colleagues, another judge, is very unlikely, especially if the request is made by a pro se amateur litigant. It’s just basic human psychology. But nevertheless what I basically asked the Appeals Court to answer is how can there be no violation of the Lease when a behavior of a tenant prevents a landlord from doing repairs and improvement to his property?
WHY ARE THE ISSUES IN THIS CASE IMPORTANT?
As you all know the “just cause” evictions has been something that the far left has been pushing for decades and there are several bills currently trying to make it into law. They basically want landlords not to be able to evict for any violation of the Lease but only for some specifically spelled out “just cause” violations like health and safety violations, for example, as it was during the Moratorium, all others being considered “de minimis” and not evictable violations.
It’s bad enough that they are breathing down our necks with the threat of it becoming law soon, we don’t need judges already applying it as if though it’s the law. They are counting on that they won’t be appealed as appealing is a big hassle.
That’s why I made the case to MassLandlords as the largest association of landlords in MA that they should take a stand and appeal this. If this was filed by an attorney it might be taken more seriously I thought. It’s not supposed to matter but we know how humans act.
The tenant is clearly violating the Lease by refusing to cooperate with the repairs and improvement by not allowing access and providing the required by MassSave (which in effect is National Grid) information.
During the hearing on my Motion to Reconsider and Modify predictably Judge Fields said that he will not change his Order. Here is my Motion to Reconsider. That did not surprise me but what surprised me is not even a word from him about the tenant being required to communicate with me and allow access. If I need to ask for access, he said, I need to file a separate civil case. (another 5 months of waiting?)
Another question I had for the Appeals Court was: “Can there be a de minimis violation in a residential Lease that says that all violations are of material nature”?
This is not really a complicated case.
A landlord asks a tenant to provide access to the building and their National Grid account number to the landlord so that the building can be insulated. The answer is NO in clear violation of the Lease.
The landlord asks a housing court judge to compel the tenant to provide the information and the access OR leave. As an alternative to leaving the landlord suggests that the information could be provided directly to MassSave (not to the landlord) or the landlord could put the electricity temporarily in his name and provide his National Grid number to MassSave. The answer to both is NO.
The judge says there is no violation of the lease or if there is, it’s “de minimis” (even though the Lease clearly says that there is no “de minimis” violations of the Lease) and because it’s minor it’s non-evictable.
The end result is that you have a landlord who is:
1) Not allowed to work with the contractor he chooses (MassSave)
2) Not allowed access to his property to make repairs and improvements. (to weatherize his building)
Both of these things are big deals and should be alarming to any Massachusetts Landlord.
So the issue for the landlord community is – should a judge be allowed to not enforce a Lease?
If a judge can say this is a minor violation when the contract says it isn’t what’s the point of signing contracts at all? Then we are clearly getting into “just cause” territory and that’s not something MA landlords should ignore.
I waited for I think 3 months to be seen by a Mediator, then another month to be seen by judge Fields, then he automatically postponed another month because he wanted to see the Lease (which I could have emailed him during the hearing without losing another month), then he took it under advisement for a month and a half and all of that to just give veto power to the tenant regarding this insulation project. Could any of these delays be retaliatory? Is he sending a clear message that landlord activism and landlords who fight for their rights and the rights of other landlords will not be tolerated?
He easily could have found the tenant in violation of the lease and ordered her to comply with the National Grid requirement that she shares certain basic information with MassSave OR ordered her to get out of the way of the repairs and improvements.
Allowing the tenant veto power over what contractors the landlord can choose and de facto not allowing access to the landlord to his own property to weatherize it is not good.
But he was betting that he will go unchallenged because of the low probability that a single landlord will have the bandwidth to appeal him and the high probability the landlord community will be too disorganized, timid and weak to challenge him.
If he is not challenged he gets more emboldened and we ALL lose.
He was right about the landlord community but not about me.
Call me crazy but I think the violation of her privacy by disclosing her National Grid account number to MassSave (which is a National Grid’s creation) is not more important than my right and obligation to choose the contractor I want to work with for whatever reason (in this case MassSave) and to repair my property by insulating it not to mention the issue of Global Warming and how important that is. Shouldn’t even be a close call. But as far as judge Fields is concerned it’s less important. The refusal of the tenant to disclose that information according to him is de minimis and so the hell with the Contract, he is not going to enforce it.
I think it’s a matter of ideology, of deeply held political beliefs not only of this judge but of others like him too (and in my case maybe a little bit of judicial retaliation because I am an activist and I have a blog where I write about these things). And here is what they seem to believe in: “Major inconveniences to landlords or even major violations of their rights (like not allowing the landlord to work with a contractor he chooses or not being allowed access to their buildings or not being allowed to repair and improve their property) ARE ALWAYS LESS IMPORTANT than minor inconveniences to tenants or minor violations of their privacy (like having to disclose a National Grid number to…National Grid and/or their agents)”. It looks like that is the 1st law of Western Housing Court in MA.
Keep in mind that MassSave IS in effect National Grid and the other 5 Utility Companies in MA. It’s a construct, it’s their initiative, it’s their front, I don’t even think MassSave is incorporated. On the MassSave’s web site it states: “WE ARE MASS SAVE” and then the logos of the 6 Utility Companies are listed below. So MassSave is basically a National Grid’s agent.
But even if the tenant was asked to disclose her National Grid number to her landlord I think we all can agree that there isn’t much one can do to abuse that information. What am I going to do with her National Grid account number – call them and pay her bill?
So it is a matter of ideology and deeply held belief of this out-of-the-mainstream judge and maybe other housing court judges that even Global Warming is less important than, god forbid, having to inconvenience a tenant!
I am sharing this case because I want to use my experiences to teach and help other Massachusetts Landlords to show how far in the absurd direction the landlord-tenant law application has gone in MA. We have to wait 5 months to reach a judge in Housing court, then another month and a half for a Decision and then you lose again because of the Ideology of the person appointed to be a judge. (But even in case you win, the money judgment is uncollectable.) Lot a bad loop.
And that’s not even everything. Funny, when I was preparing for the appeal I called Western Housing Court to ask if they have court approved transcribers they want me to work with and the “customer service person” gave me FDR.com to go to for transcribers. I specifically remember asking “are you sure – F as in Franklin, D as in Doctor?” She was sure.
SO I FILED AN APPEAL. HERE IS MY WHOLE ARGUMENT:
“Summary of the Argument
The violation of the Lease is not de minimis but even if the violation is de minimis, the Contract in clause 59 states that there are no de minimis violations.
Argument
Because Housing Court was closed to all but “health and safety” evictions for about half of 2020, it now takes about 5 months to reach a judge in Western Housing Court. After taking the case under consideration for another month and a half the judge in the lower court basically decided that there is no violation of the Lease but to the extent that there is it is de minimis and therefore non-evictable. As far as access per landlord-tenant law he said during the Motion to Reconsider that if I wanted access to my property I needed to file a new civil case, which, I assume, will take another 5-6 months.
- The violation of the Lease is NOT de minimis. By refusing to provide to MassSave the required by National Grid information and by playing games with access the tenant is effectively blocking the insulation of the building and that is a big deal. A landlord (even in MA) has to have access and cooperation to make repairs and improvements to their property or the tenant has to leave.
- BUT EVEN IF the violation is de minimis, the Contract in clause 59 states that there are no minor (de minimis) violations, they are all material and unless there is something in the Contract that is found by the judge to be illegal or to shock the conscience, etc, the Contract must be honored.
This was never about evicting anybody and I made that clear on every occasion I had including Mediation. I even offered several compromises – to put the electricity in my name until I insulate or for the tenant to provide her National Grid account number directly to MassSave not me or for me to give plenty of time to the tenant (6 months) to find a new apartment which I proposed during the Hearing on my Motion to Reconsider, but all those offers were rejected by the lower court judge and the tenant.
Conclusion
I respectfully ask the Appeals Court to find that if a landlord wants to insulate their property and choose a contractor they want to work with (in this case MassSave), they should be able to and tenants should not, in effect, be given veto power over it.”
About 30 days after I filed for the appeal, the tenant left voluntarily, I called MassSave and the building was quickly weatherized and insulated. That was the last building that needed insulating and it took me 3 years to do all buildings but now all my 11 buildings have been insulated.
About 10 months after I filed the Appeal I received an email from the Appeals Court wanting to know if the tenant has vacated the apartment and if so why should the case not be considered moot.
I gave them an answer where I did some research and found reasons why even some moot cases should be reviewed. I know it seems boring but you really should read this – Elmir’s Argument Against Mootness.
Shorty after that they issued their short and condescending Decision published below in its entirety except I have removed the name of the tenant because it’s irrelevant.
“NOTICE OF DOCKET ENTRY
Please take note that on November 28, 2022, the following entry was made on the docket of the above-referenced case:
ORDER: After judgment entered in favor of the tenants on the issue of breach of the lease and possession, the tenants moved and the landlord regained possession of the premises. Because the landlord has achieved the relief he sought in his summons and complaint — removal of the tenants — the appeal is moot and we dismiss it. Matter of an Appeal Bond (No. 2), 428 Mass. 1022, 1022 (1999) (appeal moot because the landlord had already evicted petitioner)[2]. Appeal dismissed. (Milkey, Henry & Shin, JJ.). *Notice/Attest.
Footnotes:
[1] NAME OF THE TENANT.
[2]This dismissal does not suggest that the landlord would have prevailed on the merits. The trial judge held that the tenants had not breached the lease. We see no error in this holding.”
First, I don’t understand why once you declare that you cannot reach the merits of a case because the case is moot, why can’t you have enough self-control to not comment in Note 2 on how you would have ruled IF you were able to reach the merits of the case?
Second, think of what they are really saying and the precedent here – In a Landlord-Tenant dispute, where the Landlord tries to evict a tenant For Cause, the Housing Court can rule in favor of the tenant REGARDLESS of what the cause is and how big of a violation of the Lease it is and the tenant has about 10 months to continue to engage in said violation but as long as they leave on their own by the time the Appeals Court reviews the situation, the Landlord has no standing to get an Appellate Review on the Housing Court!!!
For those of you who don’t understand my 2nd point because it looks like too much legalese here is a simple version of what the Appeals Court is de facto saying – Housing Court Judges are free to retaliate as much as they want and to say something is not violation of the Lease even in cases when the violation is obvious. Their decision can only be reviewed by the Appeals Court if by the time it reaches the Appeals Court (about a year) the tenant is still at the apartment. If the tenant has left, their decision allowing the tenant to remain in the apartment for about another year continuing to violate the Lease, will NOT be reviewed by the Appeals Court.
By the way, for those of you who think that instead an eviction I should have just filed for a TRO (Temporary Restraining Order) – what makes you think that a judge who doesn’t believe the tenant is committing any violation of the lease by refusing to provide her National Grid bill so the landlord can weatherize the building with MassSave, will issue a TRO to make the tenant comply?
IN CONCLUSION:
Ok, so here is the new anti-landlord case law – in a case of for cause eviction, if the landlord appeals and the tenant leaves before the Appeals Court decision, the issues raised by the landlord are moot and will not be reviewed! Also it’s not a violation of the Lease for the tenant to refuse to provide the landlord or MassSave with their National Grid information in order for the landlord to weatherize and insulate the building.
Judge Fields, I know the Appeals Court is giving you a free pass this time but a) whether you are engaging in retaliation against me or you are just being a **** with all landlords, I don’t know, but if you are, stop it, it is underneath the dignity of the position you hold and b) please fix your Housing Court – a landlord having to wait 5 months to reach a judge is not acceptable plus another month and a half on top of that for the decision. You are actually hurting anybody who is looking to rent an apartment because the harder it is to evict someone, the harder it becomes to find an apartment because entrance requirements get raised as landlords are afraid that they cannot evict. It should be 3 weeks to see a judge as it was pre-Covid. Frankly, with Zoom it should be no more than 1 week after the expiration of the Notice to Quit.
