MASSACHUSETTS
RESIDENTIAL
TENANCIES
Written by
Michael J. Ciota
The Law Office of
Ciota, Starr & Vander Linden
LLP
625 Main Street
Fitchburg, MA 01420
(978) 345-6791
(508) 754-8882
Fax (978) 345-6935
Fax (508) 754-3639
info@csvlaw.com
© Michael J. Ciota, all rights reserved
June 10, 2003
INTRODUCTION
MASSACHUSETTS RESIDENTIAL
TENANCIES
INTRODUCTION
A tenancy is a contract in which one person gives
the other exclusive possession of premises in return
for rent. Other legal relationships resemble the
landlord-tenant relation but the essential indicator of
a rental contract is: the exclusive possession of
certain premises in exchange for rent.1
The law sets the rules, and establishes the rights
and duties of the
landlord and tenant. The “common
law” – the law here and in England at the time the
United States was formed and as developed by the courts
independent of statutes – establishes some of these
rules. State statutes and constitutions also regulate
the relations between the parties.
Constitutions and
statutes may restrict or expand the common law or
impose regulations for problems unknown to the common
law. Acting under statutory authority, administrative
agencies enact regulations which impact the
1
In residential tenancies, the habitability of the premises is an essential part of this
contract.
-2-
relationship. Courts interpret and apply the common
law, the constitutions, statutes and regulations to
articulate the rights and duties of the parties before
the court. In doing so new rules are created; older
rules are altered or discarded. Massachusetts landlordtenant law has evolved from all these sources.
Landlord-tenant law is more complex than it was
50 years ago.
Statutes, regulations and judicial
decisions have radically changed the landscape for
residential tenants and their landlords. Where once a
tenant was a mere grantee of land, today the
residential tenant is a consumer protected by an array
of regulations many of which impose double and triple
damages on landlords who violate them. A tenant,
successfully raising counterclaims in an eviction case,
can prevent eviction, legally avoid paying rent and
collect additional damages from her landlord. The
landlord may have to pay the tenant’s lawyer for the
landlord’s unsuccessful eviction!
The law regulates the terms of tenancy agreements,
termination of those agreements, evictions, security
deposits and the minimum standards for habitable
-3-
dwellings. Landlords today must bend their rules and
expectations to accommodate disabled tenants. An
unwitting landlord may find that she has waived her
tenant’s breach of the lease or has recreated
the
tenancy after she had served a termination notice. A
tenant, even one engaging in criminal behavior, can
prevent an eviction if the landlord has failed to
understand the legal implications of his lease. No one
should venture into this business without knowing
the
rules of the legal playing field. A landlord, ignorant
of these rules, will find himself at the short end of
the legal stick. The goal of this seminar is to teach
landlords of residential property and their agents
basic knowledge and skills so they can avoid the
economic consequences of legal mistakes.
KINDS OF TENANCIES
-4-
KINDS OF TENANCIES
For our purposes, three basic kinds of tenancy
exist in Massachusetts. This is a brief summary
description of each. We will discuss: (1) tenancy for
years; (2) tenancy at will; (3) the subsidized
tenancy.2
2
The law also refers to a tenancy at sufferance. A tenant at sufferance is not really a
tenant, but he is not on the premises under a contractual relationship. The tenant has
“bare possession” without a right. While not really tenants, these occupants are not
trespassers because their original entry into the premises was rightful. G.L. c. 266, § 120.
They can enforce the Sanitary Code, Brown v. Guerrier, 390 Mass. 631 (1983) and the
provisions of G.L. c.186, § 14, Serreze v. YWCA of Western Mass., Inc., 30 Mass. App.
Ct. 639 (1991). They can file counterclaims in summary process actions. Hodge v. Klug,
33 Mass. App. Ct. 746 (1992).
-5-
Tenancy for Years
-6-
A tenancy for years is a landlord-tenant
relationship created in writing (the lease) for a
fixed and definite period of time. Wunsch v. Donnelly,
302 Mass. 286 (1939). This tenancy requires a written
agreement, but, a written agreement doesn’t always
create a lease. To constitute a lease, the written
agreement must have an definite termination date. An
oral “lease” or a written “lease” without a definite
term creates only a tenancy at will. A written “lease”
which permits either party to terminate the
relationship at will – e.g.,
by a 60 days notice –
creates a tenancy at will.3 A lease may be for any
definite period of time. A lease for more than seven
years is not valid against any person except the lessor
and his heirs and persons, with actual notice, unless
the lease is recorded. G.L. c.183, Section 4.
A lease
can’t terminate before its end date unless the lease
itself specifically provides a mechanism for earlier
termination. For example, the lease might provide for
3
This rule does not apply to government subsidized tenancies which require proof of “good
cause” to evict. The “good cause” requirement is inconsistent with a tenancy at will.
-7-
termination on the happening of some contingency or
after giving notice if the tenant breaches its terms.
Statutes and regulations prohibit certain clauses
in a lease and require or regulate other clauses. Each
of the following statutes or regulations affect the
provisions of leases and other written tenancy
agreements. G.L. c. 186, §§ 14,15,15B(1)(a),(c) and
(8);15C,15D,15E, 15F,16,18,19,20,21; 940 CMR 3.17 (the
Attorney General’s 93A regulations describe required
and prohibited clauses); 105 CMR 410.190, 201,254
(Sanitary Code provisions relating to written rental
agreements).
Tenancy at Will
A tenancy at will is created by either express or
implied contract. It may be either oral or written. The
tenant acquires a tenancy for an indefinite time and
pays periodic rent. A tenancy at will is often created
when the tenant remains after termination of the lease
and the landlord accepts rent. This conduct may imply
an agreement to rent. See Footnote 4. As the name
implies, it continues only so long as the parties want
-8-
it to continue. This tenancy continues in existence
from rental period to rental period until either party,
or the operation of law, terminates the contract.
Today, the rental period is typically the calendar
month and so these tenancies are frequently called
month to month tenancies. A distinguishing feature of
the tenancy at will is that it has no end date. It
continues unless terminated. Because a tenancy
agreement establishes the rights and duties of the
landlord and the tenant, a written agreement is
preferable. The written agreement embodies each other’s
expectations. Written terms are more easily provable
and therefore more easily enforceable.
The agreement, the common law, statutes and
regulations establish the rights and duties of the
parties. A specific statute, G.L. c. 186, § 12,
provides that either party may terminate the
relationship by written notice to the other. The
provisions of Chapter 186 regulating the contents of
leases, supra, 940 CMR 3.17, and Sections
410.190; 201
and 254 of the State Sanitary Code also govern written
tenancy at will agreements.
-9-
-10-
Subsidized Tenancy
The distinguishing feature in this tenancy is the
involvement of the government. The government may own
the building or may subsidize a private landlord by
financing the construction or rehabilitation of the
building and/or by paying a portion of the tenants’
rent.
Typically, the government enters into a
relationship with the owner/ developer/landlord by
lending funds for construction or rehabilitation of the
property, by guaranteeing the developer’s loan, or by
paying a portion of the tenant’s rent in the form of a
direct subsidy to the landlord. The government also
builds and owns its own rental property.
Both the state and federal governments foster
affordable housing using a variety of programs. Among
the funding agencies are the United States Departments
of Housing and Urban Development (HUD) and Agriculture
(USDA), the Massachusetts Department of Housing and
Community Development (DHCD), and the Massachusetts
Housing Finance Agency (MHFA). The programs range from
rental assistance and
subsidies to mortgage subsidy
-11-
programs. Typically, program restrictions apply to
tenant eligibility, the amount of rent charged, the
terms of the tenancy and evictions. These restrictions
will be found in state or federal statutes and
regulations, in mandatory form leases, deed
restrictions and covenants and court decisions.
The government’s involvement alters the landlord’s
relationship with the tenant by making the landlord
subject to some constitutional limitations. McQueen v.
Druker, 317 F.Supp. 1122 (D.Mass. 1970) aff’d 438 F2d
781 (1st Cir. 1971); Spence v. Gormley, 387 Mass. 258
(1982). The Constitution, which is fundamentally a
limitation on the powers of government, limits this
landlord’s authority because of the government’s
involvement.
From a constitutional perspective, the tenancy in
government funded or subsidized housing
is “property”;
and the subsidized landlord is the “government” for
some purposes. Thus the Fifth and Fourteenth Amendments
to the United States Constitution, which prohibit the
government from depriving a person of property without
due process of law, limit these landlords authority to
-12-
terminate the tenancy and to evict the tenant. These
constitutional provisions trump contradictory
provisions of a lease. For example, while a
written
agreement might on its face create a tenancy at will,
the subsidized landlord cannot evict without “good
cause.” Even if a lease “terminates,” the subsidized
tenant has a right to remain as a tenant unless the
landlord has “good cause” to evict. “Federal and state
housing policy, as expressed in statutes, regulations
and recent cases interpreting them, reveals that in
creating and providing for public housing, the
government intended to depart from traditional
concepts of the landlord-tenant relationship. If a
traditional description is nonetheless necessary, we
think the relationship can be aptly described as a
tenancy by regulation.” Spence v. O’Brien, 15
Mass.App.Ct. 489,496 (1983) (Emphasis added). In
McQueen v. Druker, 317 F.Supp. 1122, 1129-1130
(D.Mass.1970), aff'd, 438 F.2d 781 (1st Cir.1971), the
Court said: "[I]f the government must give good cause
for terminating a tenancy, then, in effect, there are
no longer monthly or annual leases. A tenant may
-13-
remain, if not forever, at least until he misbehaves,
or he becomes rich, or the government adopts general
rules under which he no longer qualifies. (Emphasis
added)"
Federal and state statutes create and regulate the
various housing subsidy programs. These statutes often
reflect the constitutional limitations. See, e.g., G.L.
c. 121B, § 32 (requiring “good cause” to terminate the
tenancy). The administrative agencies responsible for
overseeing these programs promulgate regulations
imposing limitations on the tenancy.
Even though the specific programmatic rules
program govern each subsidized
tenancy, the other
Massachusetts statutes, regulations and case law also
apply to subsidized/public landlords.
TERMINATION OF
TENANCIES
-10-
TERMINATION OF TENANCIES
I
General Principles
The eviction case, called summary process, is a
special kind of litigation. Because the eviction of
tenants was legislatively grafted onto a speedy process
meant for something else, courts interpret the statute
strictly. For example, only statutorily authorized
persons can bring summary process,
G.L. c. 239, § 1,
and, the court requires strict adherence to the
statutory prerequisites. One prerequisite is
termination of the tenancy. For the court to evict the
tenant, the tenancy must have terminated. Over time,
because of Court interpretations and statutory changes,
some general rules for eviction cases have evolved.
1.
A landlord cannot validly begin or
successfully complete an eviction case unless
the tenancy has actually terminated. G.L. c.
239, § 1. See Summary Process Rules, Rule
2(b).
2.
The tenancy may terminate in various ways ~ by notice to quit
under G.L. c. 186, §§ 11 or 12; in accordance with the terms of a
-11-
lease either on its termination date or by a notice served for the
reasons described in, and in the manner prescribed by, the lease;
by operation of law as for example under G.L. c. 139, § 19, if the
tenant possesses certain unlawful drugs on the premises.
2.
The residential tenant cannot waive the right to receive a notice to
terminate the tenancy. G.L. c. 186, § 15A.
3.
The landlord must prove termination of the tenancy as an essential
component of his prima facie case. Ratner v. Hogan, 251 Mass.
163 (1925).
4.
The court scrutinizes the termination process relied on by to the
landlord to make sure she complies strictly with the terms of the
authority she invokes. The right to terminate, and the procedures
for termination, differ for each kind of tenancy. The landlord must
use care to follow the process strictly.
5.
The law regulates the content of termination notices. They must be
clear and unequivocal. Torrey v. Adams, 254 Mass. 22,25-26
(1925); Hildreth v. Conant, 51 Mass. 298, 302 (1845); Maguire v.
Haddad, 325 Mass. 590 (1950).
6.
The landlord must serve the termination notice properly and must
prove this fact at trial. Ryan v. Sylvester, 358 Mass. 18 (1970).
The manner of serving a notice to quit is very important. The landlord
-12-
must serve the termination notice in a manner that a reasonable person could
expect the tenant received it. Ryan v. Sylvester, 358 Mass. 18 (1970). If it is
served on a person other than the named tenant, there must be presumptive
evidence that the tenant received the notice. Id. Service doesn’t require using a
constable but, if a tenant disputes the receipt of the notice, the constable is a
critical, and perhaps necessary, witness. See, e.g,. Ryan v. Sylvester, 358 Mass. 18
(1970). Leaving the notice while the tenant is away is not sufficient notice.
Hodgkins v. Price, 137 Mass. 13 (1884). Federal regulations govern the content
and service of notice in federally subsidized tenancies. See, for example, 24 CFR
Section 247.
II
The Tenancy For Years
(A)
TERMINATION FOR NONPAYMENT
If the tenant does not pay rent when due, the landlord may terminate the
tenancy by serving a 14-day notice. G.L. c. 186, § 11, provides that a lease will
terminate fourteen days after service of a written notice unless the tenant pays or
tenders all rent due, plus interest and costs of suit, before the Answer is due in the
summary process case. The Answer is due on the Monday before the trial date.
See Summary Process Rule 4. If the tenant pays or tenders the rent and interest
and cost of suit, the tenancy won’t terminate. Tender of rent is an affirmative
-13defense which the tenant must prove. Pierce v. Dequattro, 299 Mass 533 (1938).
The has no power to waive a 14-day notice. G.L. c. 186, § 15A. The statute, G.L.
c. 186, §11, requires payment of interest and costs for tenants with a lease but the
lease might waive this requirement. Springfield Housing Authority v.
Oldham-King, 12 Mass.App. 935 (1981). G.L. c. 186, § 12, does not impose this
requirement on tenants at will.
The time within which the tenant may “cure” the non-payment also
differs from the time within which a tenant at will may cure. The tenant under a
lease has until the Monday before the trial date under the current summary
process rules. The tenant at will can “cure” only once in a 12-month period and
only within ten days after being served with the notice (unless the notice fails
to state this right). See G.L. c. 186, § 12. The tenant with a lease can always
“cure” by paying until the Answer date. Landlords frequently confuse the
different rights of tenants with leases and tenants at will. A notice to a tenant with
a lease which limits the “cure time” to that of a tenant at will probably violates
G.L. c. 93A (940 CMR 3.17) . It misstates the law by advising the tenant of a
shorter time to cure than the law actually allows.
(B)
END OF TERM
A lease will continue until its end date unless the document itself permits
earlier termination. On the termination date the contract is over. The landlord
does not need a notice to quit. At this point the tenant becomes a tenant at
-14sufferance who is not entitled to a notice to quit. Kelly v. Waite, 53 Mass. 300
(1847); Benton v. Williams, 202 Mass. 189 (1909); Staples v. Collins, 321 Mass.
449 (1947); Rubin v. Prescott, 362 Mass. 281 (1972). The summary process
statute provides for this: "if the lessee of land or tenements or a person holding
under him holds possession without right after the determination of a lease by its
own limitation or by notice to quit or otherwise ... the person entitled to the land
or tenements may recover possession thereof under this chapter.” G.L. c. 239, § 1
(Emphasis added). See Ghoti Estates, Inc. v. Freda's Capri Restaurant, Inc., 332
Mass. 17 (1954). ("We are of opinion that ... if [the defendant] was a tenant at
sufferance when the action of summary process was instituted no notice of any
kind was required.") See also Poutahidis v. Clingan, 2001 WL 1251687, 2001
Mass.App.Div. 217, 217 Mass. App. Div. (Oct 11, 2001).
After the termination date, the landlord who wants the tenant to leave
should be cautious. In Staples v. Collins, supra, the Court pointed out how simple
it is to create a new tenancy.4 Whether the parties created a new tenancy is a
question of fact for the court to resolve. Shwachman v. Meagher, 45 Mass. App.
4
“[... A tenancy at sufferance is readily changed into a tenancy at will by express or implied
agreement of the parties. Whether there has been such agreement is, of course,
commonly an issue of fact ... In this case, after the lease terminated the tenant paid the
regular rent and the landlord accepted it. The Court said: “payment and acceptance of
rent, standing alone, are prima facie proof of the creation of a tenancy at will ...
[and] the facts of payment and acceptance are controlling, if nothing further
appears.” But see Corcoran Management Co., Inc. v. Withers, 24 Mass. App. Ct. 736
(1987).
-15Ct. 428 (1998) rev. denied 428 Mass. 1106 (1998).
(3)
TERMINATION FOR BREACH
The landlord may terminate the lease for breach of its terms if the lease
provides for this. Since the lease grants the right of possession for its entire
duration, it doesn’t terminate unless it has specific language giving the landlord
the right to terminate. Typically, the landlord reserves the right to terminate for
breach of the tenant’s contractual obligations. In such cases, the landlord grants
possession only on condition that the tenant honors his obligations. If the tenant
violates the lease, the landlord can terminate the tenancy by the method described
in the lease.5 Usually, the lease permits the landlord to terminate the lease by
notice which states that the tenant has engaged in prohibited conduct. Except for
cases of non-payment of rent, the statutes don’t require any specific amount of
time for this notice of termination. The common practice in Massachusetts is a
lease provision requiring a seven-day notice.
The notice should invoke the clause(s) permitting termination and refer to
the precipitating conduct or event. The landlord should think carefully when
drafting this notice. It is helpful to think about the summary process trial.
5
The common law refers to another kind of condition – the “conditional limitation.” This
construes the lease as continuing only so long as a condition does not occur. See Markey
v. Smith, 301 Mass. 64 (1938). If this limitation occurs, there may not be a need for a
notice to quit. G.L. c. 239, § 1, permits a landlord to begin summary process if the tenancy
terminates “by its own limitation or by notice to quit or otherwise.” However, because of
the complexity of this common law doctrine, it will not be discussed in this text.
-16Consider what evidence the landlord will have to offer the court to prove
termination of the tenancy. Reflect on the question whether the conduct is the
kind of conduct permitting termination. Is there more than one lease clause
involved? What evidence does the landlord have to prove that the conduct
occurred? Remember this: The landlord has to prove that the tenant engaged
in behavior that actually violated the lease provision to which the notice
refers. The landlord is limited by the allegations contained in the notice. Atkins v.
Chilson, 50 Mass. 52 (1845); Tuttle v. Bean, 54 Mass. 275 (1847); Markey v.
Smith, 301 Mass. 64 (1938). The landlord can’t rely on conduct not included in
the notice. It should be both specific enough to describe to actual conduct in
relation to the lease but general enough not to be limited by extraordinarily
specific facts.
Waiver of Breach
If the landlord knows about the tenant’s breach of the lease, and continues
to accept rent, a court may find that the landlord waived the breach. In other
words, the court may not allow the landlord to rely on a lease violation if the
court concludes that his acceptance of rent indicates acceptance of the conduct.
London v. Tebo, 246 Mass. 360 (1923). Acceptance of rent may not constitute a
waiver if the breach is a continuing violation and occurs beyond the period for
which rent was accepted. Paeff- v. Hawkins-Washington Realty Co., Inc., 320
Mass. 144 (1946). The landlord can avoid an inadvertent waiver by accepting the
-17rent while reserving her rights to evict. McCarthy v. Harris, 17 Mass. App. Ct.
1002 (1984).
This waiver is based on the principle that an agreement, such as a lease,
may be changed by a later agreement. People are free to change their agreements
~ even their written agreements. They can change their agreements not only by
the written word but also by a course of conduct. If their course of conduct would
demonstrate to a reasonably objective observer that they have changed their
agreement, a court is likely to find that they did. In the landlord-tenant context,
the application of this principle results in waiver of the tenant’s breach of the
lease. The landlord’s knowledge of a breach coupled with acceptance of the rent
tends to indicate acceptance of the conduct and reliance on that acceptance by the
tenant.
If the landlord is concerned about the tenant’s breach, he should not
continue accepting the rent and ignoring the conduct. Let the tenant know (in a
provable manner) that the landlord considers the tenant to be in breach of the
lease. Tell the tenant what the landlord expects. State in this notice that collecting
the rent is not a waiver of this breach. If the breach is serious, the landlord should
terminate the tenancy immediately.
That the landlord can waive a breach stems from several legal principles:
(1) While a lease must be in writing, its provisions can be modified or waived
orally or by implication from the parties conduct. Com. Investment Co. v.
-18Fellsway Motors, 294 Mass. 306 (1936); (2) The law has a strong bias against
finding a “forfeiture” of a lease. See Howard D. Johnson Co. v. Madigan, 361
Mass. 454 (1972). Under this principle the court may actually allow the tenant to
“cure” non-payment of rent even at trial if the landlord will not be unreasonably
harmed, Howard D. Johnson Co., supra at 456-457; and (3) A tenant can always
setup an equitable defense to eviction even if the court does not otherwise have
equitable jurisdiction. Ferguson v. Jackson, 180 Mass. 557, 558 (1902). See In re
29 Newbury Street, Inc., 856 F.2d 424 (1st Cir. 1988). If the tenant reasonably
relies on the landlord’s acquiescence in the violation, the court may find that the
parties have modified the lease. See G.L. c. 231, § 31.
If a tenant claims the landlord waived the alleged breach, the court will
examine what happened between them to find out if the facts warrant the
conclusion that they altered the terms of the tenancy, or whether the tenant should
be relieved of his breach.
Waiver of Termination
Because a tenancy at sufferance is readily changed into a tenancy at will,
Staples v. Collins, supra, (text at footnote 4), the landlord may easily create a new
tenancy by accepting the rent without reserving his rights under the termination
notice. If the tenant remains in possession and the landlord accepts the rent, the
court may find that the landlord by implied agreement has created a new tenancy.
The court looks to the “intent” of the parties as evidenced by their conduct.
-19Staples, supra; Brockton Housing Authority v. Williams, 14 Mass. App. Ct. 955
(1982); but see McCarthy v. Harris, 17 Mass. Appt. Ct. 1002 (1984).
G.L. c. 239, § 3, reflects this principle. A landlord is barred from using the
execution for possession in a summary process case if he accepts full satisfaction
for the money judgment and payment of any use and occupancy accrued since the
judgment.
III
The Tenancy at Will
This tenancy will only terminate: (1) by operation of law (for example, the
use of unlawful drugs on the premises – see G.L. c. 139, § 19); (2) by a written
notice, with no reason required, sent by either party [the so-called 30 days’
notice] – see G.L. c. 186, § 12; or (3) by a notice to quit for non-payment of rent
[the 14 day notice] – see G.L. c. 186, § 12.
(a)
The “30 days” notice must be in writing and served upon the
tenant such that, between the date the tenant receives it and the date it is effective,
an interval of at least 30 days or one full rental period, whichever is greater,
occurs. The time period begins from the date the tenant actually receives the
notice. Hodgkins v. Price, 137 Mass. 13,16 (1884). A notice served on January
31st purporting to be effective at the end of February, is ineffective because it
does not encompass 30 days. Assuming the tenant pays rent on the first of the
month, a notice served on the 14th of the month would not terminate the tenancy
-20on the 15th of the following month. One unbroken rental period must occur
between receipt of the notice and the termination date. The rental period is
determined by the date the rent is due. The termination date must be a rent due
date. U-Dryvit Auto Rental Co. v. Shaw, 319 Mass. 684 (1946).
Either party may terminate the lease using this notice. No reason is needed
to end the relationship. The landlord doesn’t need to have a “cause” to evict.
However, the landlord’s actual reason can vitiate the notice. For example, if the
landlord’s reason is discriminatory in violation of state or federal law, or
retaliatory because the tenant’s engaged in conduct protected by law, the
landlord’s actual reason can defeat the eviction. See below, Retaliatory Eviction.
(b)
A 14 days’ notice terminates the tenancy for non-payment of rent.
The notice to quit must be in writing and must state that if the tenant has not
received a notice to terminate for non-payment within the previous 12 months, the
tenant has ten days within which to “cure” the non-payment by paying or
tendering the rent due. G.L. c. 186, § 12. While failure to include notice of the
right to cure will not invalidate the notice, it gives the tenant more time to pay. If
the landlord fails to include this information, the tenant has the right to pay until
the Answer is due in the summary process case.
The landlord should not use this “right to cure” language when
terminating a lease for non-payment. A tenant under a lease has the statutory right
to cure until the Answer is due. Using the tenancy at will language for a tenant
-21with a lease falsely states the tenant’s rights and potentially violates G.L. c. 93A
as an unfair and deceptive trade practice.
One non-payment issue deserves special notice here. Many landlords
believe they can “increase the rent.” To do so they may send a notice telling the
tenant that the rent will increase effective a specific date. Believing in the
effectiveness of the notice, especially if mailed more than 30 or 60 days before
the “increase,” the landlord serves a 14 day notice for non-payment of this
“increase.” The landlord will lose the eviction case based on this non-payment.
A landlord cannot increase the rent any more than the tenant can decrease
it. The relationship is contractual. It takes at least two persons to agree to the
terms of a contract; it takes the same two persons to change the terms of that
contract. The landlord cannot terminate a tenancy with a 14 day notice on the
ground that the tenant didn’t pay the “increased” rent. Maguire v. Haddad, 325
Mass. 590 (1950); Williams v. Seder, 306 Mass. 134 (1940). The proper means
for getting more rent for the apartment is to terminate the tenancy by means of a
30 day notice and, in that very notice, offer the tenant a new tenancy on the
different terms, including rent, that the landlord wishes to offer. See G.L. c. 186, §
12, which provides: ”Such written notice may include an offer to establish a new
tenancy for the same premises on terms different from that of the tenancy being
terminated and the validity of such written notice shall not be affected by the
inclusion of such offer.” If the tenant pays the new rent, the new tenancy is
-22created; if the tenant doesn’t pay the rent, the landlord may proceed under his 30
day notice by filing a summary process complaint.
IV
The Subsidized Tenancy
The Due Process Clause of the Fourteenth Amendment restricts evictions
in most subsidized tenancies. Because of the governmental involvement, the
courts consider these landlords to be “governmental actors.” The government
furthers its purposes by spending public money to create and support these
tenancies. Therefore, courts have concluded that the subsidized tenancy is a
protected “property right.” The Due Process Clause prohibits the deprivation of
property without due process of law. Due process of law requires “notice and the
opportunity to be heard.”
In evictions from subsidized housing, due process has two basic elements:
(1) the landlord must have a sufficient reason or justification for the eviction;
and (2) the subsidized landlord must give the tenant reasonable notice and the
opportunity to contest the eviction. This is commonly referred to as requiring:
(1) good cause; and (2) notice of good cause. The termination notice must
describe the reasons for the termination, AND these reasons must justify an
eviction. In other words, due process requires a reasonable connection between
the grounds on which the landlord relies and the eviction. The landlord must
have, and must prove, good enough reasons to deprive the tenant of her property,
-23i.e., to put the tenant out of her home. A landlord’s description of the reasons
includes two elements: (1) reference to the lease clauses which the tenant
violated; and (2) a statement of the facts which the landlord alleges establish the
violation. Due process also requires that the procedure, including service of the
notice of termination, must give the tenant a reasonable opportunity to defend
against the landlord’s allegations.
The “good cause” for eviction standard is often embodied in the statutes
and regulations creating the various kinds of subsidized housing programs.
Regulations may govern not only the contents of the notice to quit but also the
method of service. For example, federal regulations, 24 CFR Section 247 govern
evictions from certain federally subsidized projects. The regulations impose limits
on the timing, contents and procedures for serving the notice to quit. The Section
8 regulations set limits for those tenancies. 24 CFR Sections 880.607 (new
construction); 881.601 (substantial rehabilitation); 882.211 (moderate
rehabilitation); 883.70 (state housing agencies); 884.216 (Rural Housing and
Community Development Service [Farmers Home]); 886.328 (HUD insured
projects). 24 CFR 966 governs evictions from public housing. Regulations for one
type of tenancy may differ in important respects from the regulations governing
another subsidized program. Since government housing programs are often piggybacked in a single development, several statutes and regulations may apply.
Compliance with the applicable statutes and regulations is absolutely
-24necessary for validly terminating the tenancy. See Spence v. Gormley, 387 Mass.
258, 259 n.2, (1982). Since a landlord must prove termination in order to evict the
tenant, Boyle v. Boyle, 121 Mass. 85 (1876); Ratner v. Hogan, 251 Mass. 163
(1925), if she doesn’t comply with the termination provisions of the subsidy
involved, she cannot evict the tenant.6
In an eviction from a tenancy subsidized by the state or federal
government, the landlord must know and comply with: (1) the terms of the
lease; (2) the applicable state or federal statutes and regulations; and (3) the
constitutional requirements of “good cause.”
GOOD CAUSE AND THE CONDUCT OF HOUSEHOLD MEMBERS
A landlord often rents to an entire family unit – mother, father, children,
and/or “significant others.” Unmarried couples living together comprise a
significant number of Massachusetts families. The tenant-applicant, usually an
adult, signs the lease. Often, only one of the adults signs the lease. The landlord
expects the whole family to abide by the terms of the lease. He expects the whole
6
See Cambridge Housing Authority v. Wedge, 2000 WL 1286437, Mass. App. Div., 2000
for an example of the landlord’s failure to follow the federal procedure to the letter.
-25family unit to honor the rules of conduct. Yet, increasingly, landlords contend
with situations in which the conduct of one household member, who did not sign
the lease disturbs the quiet enjoyment or safety of other residents. In these
situations, evictions have become more difficult. The landlord has the problem of
proving not only that the disturbing conduct occurred but that the conduct of one
household member violated the terms of the lease signed by the “tenant.” In
subsidized tenancies, the "good cause" raises additional problems. The Supreme
Judicial Court has given some guidelines in recent cases.
“Good cause” requires the owner to justify the eviction by making a
connection between the conduct committed by the family member and the
“tenant’s” eviction. As the Court said, the landlord must prove "some connection
between the tenant and the conduct underlying the termination." Spence v.
Gormley, 387 Mass.258, 264 (1982). How does the landlord show the connection
between the violent conduct of the teenage son and the parent who signed the
lease? Or between the tenant and the friend who got arrested for a crime on the
premises? Is the parent responsible for the child’s behavior? Should the tenant be
evicted because of her friend’s criminal conduct? When the Court looks for
answers to these questions, it starts with the lease.
The lease is an agreement between two parties. To evict the tenant, the
landlord has to terminate the lease.7 To terminate the lease, the landlord has to
7
-26show that the lease allows termination. Often, this means proving that the tenant
~ the other contracting party ~ breached the lease. Therefore, to evict the entire
household for the conduct of one member, the landlord has to prove to the court
that the behavior of the one involved is a breach of the lease by the tenant.8 To
determine if the landlord has made out a case for eviction, the Court first looks to
the lease and then determines, if necessary, if the breach warrants eviction under
This issue isn’t a problem for the landlord with a tenancy at will because she doesn’t need
a reason to evict. She can serve a notice under G.L. c. 186, § 12. Similarly, proving a
lease violation is not an issue in evictions under G.L. c. 139, § 19, which refers to the
conduct of “occupants.”
8
The issue also comes up when the disturbing conduct is committed by the “friend” who
sometimes stays in the apartment and sometimes does not. It also comes up in lease
terminations and in G.L. c. 139, § 19, cases. See, e.g., Boston Housing Authority v.
Guirola, 410 Mass. 820 (1991).
-27either the “cause” provisions of G.L. c. 121B, § 32, or the Due Process Clause.
The Court has looked at this issue in a series of cases which we will
examine in more detail.
Spence v. Gormley, 387 Mass.258, 264 (1982)
In Spence v. Gormley, the household member ~ a son ~ committed acts
which the lease prohibited. The Court grappled with the question whether it is
consistent with good cause for a tenant to be evicted because of the conduct of a
household member. The lease termination clause provided: "This lease may be
terminated by the landlord ... for no reason other than ... 2. Reasonable
likelihood of serious repeated interference with the rights of other tenants ... 5.
Creation or maintenance of a serious threat to the health or safety of other
tenants...’ The Court, interpreting the language of the lease, found that: ”Clearly,
the family member’s behavior – fire bombings and assault on a landlord’s
employee – were "within the scope of conduct for which eviction [was]
authorized." The Court interpreted the lease clause to mean that if the prohibited
conduct occurred, eviction was warranted, whether the wrongdoer was the tenant
or a member of the household. “It is the [occurrence of the] conduct which
justifies eviction.” In Spence, the conduct of the child was enough, under the
terms of that lease, to evict the tenant. However, this landlord was also subject to
the G.L. c.121B, § 32, "good cause” standard. Therefore, the Court also had to
-28determine if the conduct, prohibited by the lease, also violated this statutory good
cause standard. The Court concluded that while “good cause” permits evictions
for the conduct of household members, the good cause requirement imposes
some limits. Basically, good cause requires a connection between the tenant and
the conduct of the household member ~ the ability to foresee or control the
conduct. But the burden of proof on this point shifts to the tenant.
Under the “good cause” analysis, the landlord has the benefit of an
"inference ... that the tenant is aware of potential problems [created by a family
member], and able to exercise some influence or otherwise prevent violent and
destructive conduct on the premises." At least “within the limits set by [G.L. c.
121B,] Section 32," due process permits evictions based on the conduct of
household members. Section 32 provides a limited protection against termination
when special circumstances indicate the tenant could not have foreseen the
violence or taken steps to prevent it.”
The owner doesn’t have to prove that the tenant knew of the family
member's criminal propensities or that she was able to control the conduct. Id. at
265. The burden shifts to the tenant who must "negate the inference."9 The tenant
9
In Spence v. Gormley, the Court “did not suggest that, as an evidentiary matter, mere
evidence of a tenant-household member relationship is enough to warrant a finding that
the tenant could reasonably have foreseen and prevented a break-in and theft by a
household member. The plaintiffs' burden in this case required proof of that fact, and the
judge would not have been warranted in finding that the burden was sustained. The
plaintiffs have not established their right to evict the defendant.” Hodess, supra.
-29must show "that she could [not] have averted the lease violation. In other words,
if the tenant can show that she could not have foreseen and prevented her son's
violence, there is no 'cause' to evict her." Ibid. See also Spence v. O'Brien, 15
Mass. App. Ct. 489 (1983).
This requires the tenant to prove one of three circumstances: (1) that she
could not have foreseen her son's commission of the crime; (2) that even though
she might have foreseen the crime she could not have prevented its occurrence; or
(3) that although she foresaw the crime, she took reasonable measures to prevent
it. Spence v. Gormley, 387 Mass. at 265-266.
Hodess v. Bonefont, 401 Mass. 693 (1988)
Hodess v. Bonefont, 401 Mass. 693 (1988) presents a different lease
clause. The Court contrasts the lease with the lease in the Spence case. The Court
concluded that terms of the lease did not authorize the eviction of the tenant
because of the conduct of a household member.
In Hodess, the owner’s termination notice referred only to the tenant’s
breaches of Sections F.2 and F.14 of the lease.
The one provision, Section F.2, required the tenant to “live in a peaceful
way, respecting the rights of other tenants.” The Court said: ”This [language]
cannot be construed as a promise that every member of her household will
live peacefully and in a manner consistent with the rights of other tenants. At
-30most, it may be arguable that the tenant agrees that she will not permit household
members to engage in non peaceful conduct, violative of other tenants' rights, to
the extent that she can reasonably foresee and prevent such conduct.”
The second provision, Section F.14, obligated the tenant: "[n]ot to ...
allow to be created by Resident, members of Resident's household, relatives,
guests, invitees or agents, any unlawful, noisy or otherwise offensive use of the
leased premises." The Court concluded that this wording in the lease required the
landlord to prove the tenant’s actual involvement in the disturbing behavior, i.e.,
that the tenant actually allowed the conduct to occur. It requires, “at the very
least, some acquiescence by the tenant in her sons' conduct. Acquiescence
requires some kind of action or inaction on her part.” The sons’ theft didn’t
involve the tenant at all. “Even if the sons' storage of the stolen articles in the
tenant's premises [is] considered an unlawful or offensive use of the premises ...
the tenant did not ‘allow’ that use [unless she knew] about it or at least
[foresaw] and [was] able to prevent it.” Id.
The Court compared the wording of the lease in Gormley with that of the
lease in Hodess. “[T]he language of the termination provision [in Hodess] does
not speak only to the conduct justifying eviction, as in Spence v. Gormley, but it
also speaks to the person whose conduct is referred to.” In Hodess, the lease
authorized eviction of the tenant only for “material noncompliance with the lease”
including a substantial failure "to abide by any obligations" under the lease.
-31However, “only the landlord and the tenant, [as] signatories to the lease,
undertook obligations under the lease. Household members, other than the tenant,
have no such obligations.”
In Spence, “The language of the termination provisions speaks only of the
facts that justify eviction – a threat to health and safety or a likelihood of
interference with rights. This wording suggests that if prohibitive conduct occurs,
eviction is warranted, whether the wrongdoer is the tenant or a member of her
household. It is the conduct which justifies eviction, “without any identification
of the person or persons whose conduct was contemplated.”
These observations of the Court illustrate the traditional principle that to
terminate a lease the landlord must prove conduct which actually violates the
lease. The Court analyzed the wording strictly against the landlord. The lease in
Spence prohibited certain activities at the premises regardless of who engaged in
those activities; the lease in Hodess prohibited the tenant from engaging in
certain activities. So, in the one case proving that the conduct occurred was
enough; in the other, proving the tenant’s involvement in the conduct was
necessary.
BHA v. Bell, 428 Mass 108 (1998)
In BHA v. Bell, 428 Mass 108 (1998), the trial court granted possession to
the tenant based on these facts.
The tenant's son, a member of the household,
-32physically assaulted a BHA police officer while the
officer was trying to arrest one of the son's friends.
Under the lease, the tenant agreed to "forbid any
member of Resident's household ... from engaging in any
criminal or illegal activity."
The landlord did not
seek to evict the tenant for violation of this
provision. And, there was no evidence that she had
violated it.
As grounds for the eviction, the landlord relied
on the provision of the lease permitting termination if
a member of the tenant's household commits "[a]ny
criminal or other activity which threatens the health
or safety of ... BHA employees." The tenant's son
unquestionably committed a criminal act that threatened
the health and safety of the BHA police officer whom he
attacked. If the lease alone controlled the case, the
BHA would be entitled to possession of the premises.
The terms of the lease were not, however, the only
consideration. The “good cause“ requirements of
G.L.
c. 121B, § 32, also applied.
The Court referred back to what it said in Spence
v. Gormley. The tenant had to have the opportunity to
-33show that she could not have foreseen and prevented her
son's violence. Because the trial judge didn’t rule on
whether the tenant had met her burden of proof, the
Appeals Court remanded the case back to the trial
court.
BHA v. Bryant, 44 Mass. App. Ct. 776 (1998)
Lease interpretation also plagued the landlord in
BHA v. Bryant, 44 Mass. App. Ct. 776 (1998). The
landlord brought a summary process action because the
tenant had run up credit card charges at two retail
stores in the name of one of the landlord’s employees.
The trial court, allowing the eviction, ruled that
these acts of credit card fraud violated Section
8(I)(1) of the lease.
Section 8(I) of the lease obliged the tenant to:
“Refrain from engaging in, and forbid any member of
Resident's household, any guest, or any other person
under Resident's control from engaging in any criminal
or illegal activity including: "(1) Any criminal or
other activity which threatens the health, safety, or
right to peaceful enjoyment of public housing premises
by other residents, or BHA employees, or "(2) Any drug-
-34related criminal activity on or near BHA property.”
Observe that this clause merely prohibits the described
conduct ~ illegal conduct. It says nothing about
termination of tenancy. The provisions of the lease
which permitted termination of the lease were narrower
in scope. This case taught the landlord the
significance of this drafting difference.
The termination clause, found in the next section
of the lease, provided that: "This lease may not be
terminated by BHA except for one of the following
reasons:
"... Any criminal or other activity which
threatens the health or safety of other residents or
BHA employees, or which threatens their rights to
peaceful enjoyment of public housing premises, or (b)
Any drug-related criminal activity on or near BHA
property."
The termination provisions were drawn more
narrowly than the provisions regulating the tenant’s
conduct at the premises. They permitted termination of
the lease only for crimes which threatened health or
safety. Therefore, they didn’t permit the landlord to
evict the tenant for criminal fraud against its
-35employee. As the Court stated: “To be the victim of a
credit card fraud, an embezzlement, or of a commercial
scam through the mail is profoundly disturbing but does
not implicate, in the sense commonly understood, a
threat to health and safety.”
United States Department of Housing and Urban
Development v.
Rucker, 535 U.S. 125 (2002)
The United States Supreme Court has decided the
federal due process issues by ruling that there is no
due process problem in evicting a tenant for the acts
of a person on the premises at the invitation of the
tenant if the lease prohibits the conduct from
occurring.
Federal provides requires housing authorities to
use leases ...
“provid[ing] that ... any drug-related
criminal activity on or off [federally assisted lowincome housing] premises, engaged in by a public
housing tenant, any member of the tenant's household,
or any guest or other person under the tenant's
control, shall be cause for termination of tenancy."
The housing authority filed eviction cases in
-36state court to evict tenants for violations of the
lease by a member of the tenants’ household or a guest.
The tenants filed federal cases against HUD and the
housing authority arguing that the federal statute
doesn’t permit the eviction of so-called "innocent"
tenants, and,
that if it does, the statute is
unconstitutional. Respondents are four such tenants of
the Oakland Housing Authority (OHA). The leases
obligate the tenants to "assure that the tenant, any
member of the household, a guest, or another person
under the tenant's control, shall not engage in ... any
drug-related criminal activity on or near the
premises." HUD took the position that housing
authorities could evict for drug-related activity even
if the tenant did not know, could not foresee, or
could not control behavior by other occupants.
The Court ruled that the statute requires lease
terms authorizing evictions from public housing if a
tenant, a member of the household or a guest engages in
drug-related activity, regardless of whether the tenant
knew, or should have known, of the drug-related
activity. Under the statute any drug-related activity
-37engaged in by the specified persons is grounds for
termination, not just drug-related activity that the
tenant knew, or should have known about.
The lesson of these cases is simple. The wording
of the lease ~ the language describing the events
which trigger
termination ~ is critical for a
landlord who wants to be able to evict the difficult
tenant. A lease which prohibits the tenant from
engaging in unlawful activities is not enough. To avoid
the landlord’s problem in these cases, the termination
clause should permit termination if specified acts
occur regardless of who performs these acts. In other
words, use a lease clause that allows the landlord to
evict a tenant when a member of the tenant's household
or a guest engages in unlawful or violent activity,
regardless of whether the tenant knew, or had reason to
know, of that activity. Department of H.U.D. v. Rucker,
535 U.S. 125 (2002).
-38Termination by Statute for Illegal Conduct
G.L. c. 139, Section 19
This statute does exactly what a notice of
termination does. It terminates tenancies at the choice
of the landlord if certain conduct occurs on the
premises.
G.L. c. 139, § 19, provides:
I.
IF A TENANT OR OCCUPANT USES PREMISES FOR:
1.
prostitution
2.
assignation
3.
lewdness
4.
Illegal gaming
5.
illegal keeping of alcohol as defined in G.L.
c. 138, § 1
6.
illegal sale of alcohol
7.
(if the premises are licensed premises) –
habitually serving drunks/ alcohol to drivers
8.
illegal keeping of controlled substances
9.
illegal sale of controlled substances
10.
illegal manufacture of controlled substances
11.
Illegal keeping weapon - violation of G.L. c.
269, § 10
-3912.
Possessing/using an explosive/incendiary
device – G.L. c. 269, §§ 101-102B; or
II.
IF A TENANT OR HOUSEHOLD MEMBER OF A HOUSING
AUTHORITY OR STATE / FEDERALLY ASSISTED HOUSING
commits an act which would be a crime involving
use or threatened use of force or violence against
the person of an employee or against any person
legally present on the premises of the landlord,
III. Then, that very conduct makes the LEASE NULL AND
VOID at
1.
the election of the owner/landlord AND
right of possession immediately reverts to
landlord
2.
who may seek order for tenant to vacate OR
may commence summary process
3.
may seek declaratory relief in district,
housing, superior court which may grant
equitable relief, including preliminary
injunction, permanent injunction, INCLUDING a
PRELIMINARY INJUNCTION GRANTING possession to
landlord and in connection with this issue
“execution for possession ... to be levied
forthwith.”
-40IV.
The court may not issue an injunction without
giving the tenant notice and the opportunity to be
heard.
G.L. c. 139, § 20, imposes sanctions on landlords
who, after notice that one of the acts is occurring on
the premises, fails to take action to stop it. Section
20 provides: ”Whoever knowingly lets premises owned by
him, or under his control, for the purposes of
prostitution, assignation, lewdness, illegal gaming, or
the illegal keeping or sale of alcoholic beverages ...
or the illegal keeping, sale or manufacture of
controlled substances ... or knowingly permits such
premises, while under his control, to be used for such
purposes ... or after due notice of any such use omits
to take all reasonable measures to eject therefrom the
persons occupying the same as soon as it can lawfully
be done, shall be punished by a fine of not less than
one hundred nor more than one thousand dollars or by
imprisonment for not less than three months nor more
than one year, or both.” (emphasis added).
This statute terminates the tenancy on the
happening of the prohibited conduct. It also makes the
-41landlord subject to criminal punishment (and, this
author believes, nuisance actions by the municipality).
Court Decisions
The Court has interpreted this statute in several
recent cases. Boston Housing Authority v. Guirola, 410
Mass. 820 (1991), New Bedford Housing Authority v.
Olan, 435 Mass. 364 (2001),
In Boston Housing Authority v. Guirola, 410 Mass.
820 (1991), the Housing Authority sought and obtained a
court order of eviction for drugs which allegedly
belonged to the tenants “frequent visitor/overnight
guest.” The tenant fought the eviction by claiming
that: (1) the statute didn’t authorize the termination
of her tenancy because there was no evidence that she
or members of her family possessed the illegal drugs;
(2) the termination violates the double jeopardy clause
of the Fifth Amendment to the United States
Constitution; and (3) the evidence that there were
drugs in the premises cannot be used in a trial because
the police obtained it during an illegal search and
seizure.
-42The Court decided that the statute applied to the
tenant’s guest
because it terminates the tenancy
because of the conduct of a "tenant or occupant." The
landlord had presented enough evidence that the guest
with the drugs was an “occupant.” The Court found that
the eviction did not violate the Double Jeopardy
Clause. Finally, the Court carefully analyzed each of
the three entries by the landlord or police and found
each one of them to be legal.
This case suggests several points to a landlord.
First, the landlord must have evidence to prove that
the wrongdoer is an ”occupant” ~ that the wrongdoer
actually lives in the premises. Second, the landlord
may have to justify the entry into the premises during
which the Section 19 violation was found.
In New Bedford Housing Authority v. Olan, 435
Mass. 364 (2001), the Authority filed a case under
Section 19 on the following facts.
Ms. Olan had been a tenant for three years. The
police arrived at her apartment in response to a
complaint of disturbance. They observed a white pickup
truck leaving the scene and while they were chasing it,
-43the truck collided with the cruiser. A Housing
Authority police officer saw the collision and saw a
man from the truck flee into the apartment. The officer
followed the fleeing man into the apartment and found
him. A physical struggle ensued. A large crowd gathered
outside the apartment creating a near riot situation.
The Authority filed an action under Section 19.
This case resolved many issues under Section 19.
First, the Court held that tenants had a right to
a jury trial for actions under the statute.
Second, a Section 19 case is not an action to
abate a common nuisance. It is a private remedy for a
landlord to terminate a tenancy if a tenant commits
certain acts. To enable the landlord to recover
possession more quickly, he can use the conduct
referred to in Section 19 even if the lease has no
provision to terminate for such reasons. See Roseman v.
Day, 345 Mass. 93, 94 (1962).
Third, the Court noted that unlike the other kinds
of conduct specified in Section 19 which must be
committed on the leased premises or common areas, "an
act ... which would constitute a crime involving the
-44use or threatened use of force or violence" is
actionable under Section 19 if it occurs anywhere on
subsidized landlord’s property.
Fourth, because court actions under Section 19 are
basically eviction cases, they will be treated for some
purposes as summary process actions. The Uniform
Summary Process Rules apply to these cases. Therefore,
tenants should have the same discovery opportunities as
well. See Rule 7 of the Uniform Summary Process Rules.
Fifth, although the notice which the landlord gave
passed the constitutional requirements for due process,
it didn’t satisfy the requirements of G.L. c. 121B, §
32. This was a public housing tenancy. Since this was a
housing authority tenant, Section 32 applied. Section
32 provides that: "The tenancy of a tenant of a housing
authority shall not be terminated without cause and
without reason therefore given to said tenant in
writing prior to such housing authority filing an
action for summary process or seeking an injunction
pursuant to G.L. c. 139, § 19.
Even though G.L. c.
139, § 19, doesn’t require notice to either public or
private housing tenants, G.L. c. 121B, § 32, requires
-45written notice to public housing tenants a prerequisite
to filing suit under G.L. c. 139, § 19. Unless a public
housing landlord serves the notice required by G.L. c.
121B, § 32, the landlord cannot begin an action under
G.L. c. 139, § 19.
Sixth, the housing authority has burden to prove
that the police officers' presence at the apartment
without a search warrant was justified. The question
whether the police were lawfully at the apartment is a
question of fact to be decided by the jury.
Seventh, the Court drew attention to an issue that
bothered it but that the parties didn’t address. The
statute provides for issuance of an execution for
possession on a preliminary injunction. Normally, a
court issues an execution after final judgment. A
preliminary injunction, as its name implies, issues
before final judgment during the pendency of a trial to
“preserve the status quo.” The Court raised the problem
but did not
delve into the issues raised by this
unusual provision. But landlords should think about it
when using this statute.
Often landlords are plagued by problems with
-46tenants/occupants who sell or use illegal drugs. Not
only is the activity unlawful, it also draws
“undesirable” persons to the premises and drives
acceptable tenants away. The statute gives landlords a
speedier process by eliminating the 30 day notice
requirement in tenancies at will and providing a cause
to evict regardless of the language of the lease.
Many landlords have misconceptions about the
requirements of the statute. The statute does not
require a criminal conviction. It does not require
proof “beyond a reasonable doubt” which applies in the
criminal case against the tenant. The statute does
require proof that the tenant committed the conduct.
The problem comes in proving that the tenant
possessed unlawful substances on the premises. Without
such proof, the landlord will lose a contested case.
Yet few landlords are experts at identifying the drugs
involved. This usually requires the cooperation of the
police who are sometimes not cooperative in this
effort. The lack of cooperation may be justified from
the desire not to jeopardize an ongoing investigation
or because of time constraints. Whatever the reasons,
-47if the landlord can’t have a police witness at trial,
he will usually not be able to prove the statutory
violation.
However, municipalities have an interest in
discouraging the use of rental units for illegal
behavior. Landlords should work with the police to help
them understand how police cooperation is critical for
successful evictions in these cases.
THE EVICTION PROCESS
-46THE MASSACHUSETTS EVICTION PROCEDURE
G.L. c. 239
I
HISTORY
Summary Process developed in the Eighteenth
Century as a speedy remedy to resolve disputes over
possession of real property. Pernell v. Southall
Realty, 416 U.S. 363, 371-374, 94 S.Ct. 1723 (1974). It
was created by statute, not by the common law. Because
of this, courts strictly interpret the language of the
statute.10 Only the persons listed in the statute, G.L.
c. 239, § 1, can bring a summary process case. Dayton
v. Brannelly, 251 Mass. 551, 552 (1926). Landlords are
only one of the categories of persons entitled to use
the process. The landlord must prove that a tenancy
existed and that it
terminated.11 The purpose of this
statutory proceeding is to give possession back to
10
Courts describe the statute as “in derogation” of the common law action for ejectment and
therefore strictly construed.
11
In the case of United Co. v. Meehan, 47 Mass. App. Ct. 315 (1999), the court held that a
landlord couldn’t use summary process to remove a regular overnight visitor because the
visitor did not “have possession” of the premises. Therefore, the plaintiff was not the
landlord of the defendant. The Court said that the remedy was to evict the tenant.
-47those persons whose right to possession is wrongfully
withheld. The plaintiff must prove the right to
possession. Warren v. James, 130 Mass. 540 (1881);
Boyle v. Boyle, 121 Mass. 85 (1876); Hodgkins v. Price,
132 Mass. 196 (1882); Cummings v. Wajda, 325 Mass. 242
(1950); Buron v. Brown, 336 Mass. 734 (1958). It can be
maintained only in the instances specifically provided
for in the statute. Dayton v. Brannelly, supra. at 552,
Cummings v. Wajda, supra. In the landlord-tenant
context, this means proving that the tenancy
terminated.12 This means proof of termination in
compliance with the lease, the statutes, regulations
and due process. Summarizing the summary process
statute, the Court said:
“Originally, the provisions of [the statute] were
designed to restore to the occupant of land, by summary
process, a possession from which he had been ejected by
force, or which was withheld from him by force.
Subsequently, a landlord might be restored to
12
Persons other than landlords can bring summary process actions. G.L. c. 239, § 1. This
paper applies only to landlord-tenant relationships.
-48-
possession of premises which his tenant should hold
against him after his rights as tenant had expired ...
When the tenancy expires, the duty of the tenant is to
surrender to his landlord ... The question to be
investigated [in summary process] is merely, “Did the
relation of landlord and tenant exist, and has it
terminated?” Boyle v. Boyle, 121 Mass. 85 (1876)
(emphasis supplied).
Since the landlord grants an exclusive possession
to his tenant in the tenancy agreement, the landlord
must prove that the agreement has ended to get the
property back. This explains the significance of the
notice to quit.13 It terminates the contractual
relationship. In the tenancy at will, the landlord
proves that the tenancy terminated by proving that she
served a properly drafted “30 days’ notice” or a
fourteen day notice. Where the tenant has a lease, she
will do this by proving service of a notice in
accordance with the terms of the lease, based on a set
13
If the tenancy terminates by operation of law - G.L. c. 139, § 19 – or because under the
provisions of the lease the term has ended, a notice to quit is not necessary. But, since a
subsidized tenancy is a constitutionally protected property right, the landlord cannot evict
-49of facts which, under the lease, permit termination.
Where the tenant has a subsidized tenancy, the landlord
proves termination in accordance with the terms of the
lease, based on a set of facts which, under the lease,
permit termination in accordance with the statute and
regulations creating the housing program and the
constitutional standard of “good cause.”
The Landlord’s Prima Facie Case
This historical overview explains the essential
elements of the landlord’s case. The landlord must
prove only: (1) that the landlord-tenant relationship
existed; (2) that the relationship terminated; and (3)
that the tenant remains in possession. Ratner v. Hogan,
251 Mass. 163 (1925). Once the landlord proves these
points, she is entitled to judgment.
The tenant, of course, may dispute any one of
these points. For example, she may show that the
relationship with the plaintiff is not a landlordeven after the lease expires.
-50tenant relation; that she is not in possession against
the right of the landlord because the landlord has
established a new tenancy by accepting “rent” after the
tenancy terminated; that the landlord failed to
terminate the tenancy in accordance with the lease.
The tenant may prove that the tenancy hasn’t
terminated by challenging the service of the notice or
the landlord’s stated reasons in an eviction based on
cause. A tenant’s challenge to the notice may include
proof that:
(1)
service of the notice to quit was defective.
A 14 day or a 30 day notice may be subject to common
law challenges. See Walker v. Sharpe, 103 Mass. 154
(1869) [ there must be “presumptive evidence” of the
tenant’s receipt]; Ryan v. Sylvester, 358 Mass. 18
((1970); Hodgkins v. Price 137 Mass. 13 (1884). In a
federally subsidized development, the service may be
defective under 24 CFR 247. The regulation requires
service both in-hand (or leaving at the premises) and
by mail. Service is incomplete under federal law unless
both methods of service are accomplished;
(2)
that the contents of the notice, on its
-51face, invalidate it
content
~ e.g. the notice didn’t meet
the
requirements of 24 CFR 247, or the notice was
ambiguous. It must be a clear, unambiguous termination
of the tenancy. See Torrey v. Adams, 254 Mass. 22
(1925). See Maguire
v. Haddad, 325 Mass. 590, 593 (1950). But note that
this case has, in part, been overruled by statute. G.L.
c. 186, § 12;
(3)
the landlord didn’t terminate the lease in
the manner provided in the lease; see Ratner v. Hogan,
251 Mass. 163, 165 (1925); Shannon v. Jacobson, 262
Mass. 463 (1928); Spence v Gormley, 387 Mass. 258, 259
(1982);
(4)
the 30 day notice didn’t terminate on a rent
due date, Connors v. Wick, 317 Mass. 628 (1945);
Sanford v. Harvey, 65 Mass. (1853);
(5)
the notice failed to state the reasons for
termination where reasons are required. See 24 CFR 247;
(6)
the notice didn’t provide notice of one full
rental period or 30 days whichever is greater. Connors
v. Wick, 317 Mass. 628 (1945).
The tenant may also challenge the alleged bases
-52for the termination. For example:
(1)
the landlord while alleging and proving “bad
conduct,” did not prove that the proven conduct
actually violated the terms of the lease;
(2)
the notice alleged “bad conduct” of the
tenant and the conduct if proven violated the terms of
the lease BUT conduct of that kind is not “good cause”
to warrant an eviction in a subsidized tenancy;
(3)
the landlord waived the breach by accepting
rent after knowing of the breach OR the landlord
reinstated the tenancy by
accepting rent after
termination;
(4)
the landlord failed to prove that conduct
terminating the tenancy within the meaning of
G.L. c.
139, § 19, ever occurred.
Because the landlord has the burden to prove each
element of the prima facie case, the tenant can win the
case by holding the landlord to her proof. If the
landlord does not prove the necessary essential facts
supporting termination, the tenant will win the case
simply because the landlord failed to prove the prima
facie case.
-53The tenant can also challenge the landlord, and
will prevail, if he proves an affirmative defense which
negates the elements of the landlord’s claim. For
example, the tenant may prove: (1) that the landlord’s
the notice to quit is retaliatory -- i.e. was served
within six months of the tenant’s engaging in protected
activity, the burden shifts to the landlord to prove
otherwise; (2) that the notice to quit was an act of
discrimination based race or sexual orientation or some
other unlawful basis; (3) that the landlord waived the
breach during the tenancy; and (4) that the landlord
served a 14-day notice because the tenant didn’t pay
the rent increase sought by the landlord. See Maguire
v. Haddad.
These defenses challenge the landlord failure to
prove her prima facie case or that the landlord’s
reasons for termination were unlawful. The tenant has
another very potent statutory tool for defending an
eviction. The tenant will also keep possession of the
property if the tenant wins any claim proven under G.L.
c. 239, § 8A. These claims will be treated more fully
in the sections that follow.
GENERAL LAWS
CHAPTER 239
SECTION 8A
-53GENERAL LAWS CHAPTER 239, SECTION 8A
Under G.L. c. 239, § 8A, a residential tenant or
occupant may also assert a counterclaim or defense
against the landlord. The statute uses both “tenant”
and “occupant.” Even tenants at sufferance can raise
claims under the statute. Hodge v. Klug, 33 Mass. App.
Ct. 746 (1992). For the landlord, this statute creates
a major obstacle to regaining possession. If the tenant
wins a counterclaim, the tenant may defeat the
landlord’s claim for possession. Chapter 239, § 8A,
provides:
1.
If the landlord’s case is based on (a) non-
payment or (b) a
termination without fault of the
tenant,14 the tenant can assert any of three kinds of
claims against the landlord connected with the
property, or occupancy: (1) for breach of warranty, (2)
for a breach of any material provision of the rental
agreement, or (3) for a violation of any other law. If
the tenant wins a claim, the tenant is entitled to
14
In other words, in a “fault” eviction, the statute does not give these rights to a tenant. The
Summary Process Rules permit counterclaims in accordance with Section 8A. See Rule
5.
-54damages.15
15
The tenant’s monetary damages include, but are not limited to, “the difference between
the rent and the fair value of the premises, and any amounts reasonably spent by the
tenant to repair code violations and any other damages authorized by any law which
regulates residential premises.”
-552.
If the claim relates to the condition of the
property or to the services /equipment at the property,
the tenant must prove: (1) the owner16 knew of the
conditions before the tenant got behind in the rent;
(2) the property is not in a hotel/motel, or
lodging/rooming house which the tenant has lived in for
less than three consecutive months; and (3) that he
didn’t cause the violation if it is an area of the
property under his control and the condition is not by
its nature reasonably attributable to the landlord’s
act or failure to act.
The tenant is not entitled to relief if: (1) the
landlord shows that the conditions were caused by the
tenant or a person under the tenant’s control; or (2)
16
The tenant can alternatively prove that the owner’s “agents, servants, or employees, or
the person to whom the tenant customarily paid his rent” knew of the conditions.
-56that the conditions can’t be remedied unless the tenant
vacates.17
3.
The statute simplifies the tenant’s proof in
the following ways:
(a)
It creates a presumption that the conditions
at the property entitle the tenant to prevail if the
tenant proves that the: (1) conditions violate the
standards of fitness for human habitation under the
sanitary code, building code, or any local law, or
rule or regulation setting similar standards; and (2)
that the violations may endanger or materially impair
the health, safety or well-being of the occupants. The
State Sanitary Code
helps the tenant prove this. 105
17
See Knott v. Laythe, 42 Mass. App. Ct. 908 (1997) (The landlord prevailed on his good
faith determination that the repairs could not be made unless the tenant vacated). This
rule does not apply if the reason for temporarily vacating is to delead the premises.
-57CMR 410.750 lists specific violations which are deemed
to endanger or materially impair the health, safety or
well-being of the occupants. Landlord should take note
that under Section 750 any condition not repaired
within the time allowed by the inspector is deemed to
”endanger or materially impair the health, safety or
well-being of the occupants.”
(b)
It creates a prescription that the landlord
knew of each condition cited by the board of health as
of the date the board of health [or other code
enforcement agency] sent the notice of violation to the
landlord.
(c)
The inspection report, certified under the
penalties of perjury by the inspector, is prima facie
evidence of the facts stated in it.
4.
After hearing the case, the court can make
the tenant pay into the court the fair value for the
use and occupation after subtracting whatever was
awarded to the tenant. The court may order a single
payment or installment payments. In determining the
fair value the court may consider how the conditions
affect the use value of the premises. The court may
-58order the landlord [or whomever it directs including a
receiver] to use the money to make repairs. Of course
the balance, if any, is returned to the landlord. At
the beginning of the case a tenant may volunteer to
place disputed amounts with the court.
5.
After computing rent due the court computes
the damages awarded to the tenant. The court cannot
grant possession to the landlord:
(a)
if the rent due equals or is less than the
money due the tenant;
(b)
if the rent due is more than the money due
the tenant and if the tenant pays the difference to the
court with interest and the costs of the landlord’s
suit within one week after getting notice from the
court of the balance due. The court cannot enter
judgment until the seven days has passed.
Finally, the statute makes any waiver of its
provisions void and
expressly declares that the
retaliatory eviction statutes (G.L. c. 239, § 2A, and
G.L. c. 186, § 18) apply when any tenant exercises the
rights granted in Section 8A. In other words, the
statute specifically makes the retaliation statutes
-59applicable to protect a tenant who uses Section 8A.
These statutes (G.L. c. 239, § 2A, and G.L. c. 186, §
18) creates a presumption of retaliation as a defense
and a counterclaim for six months.
-60Section 8A Claims Typically Raised by Tenants
A tenant, even a tenant at sufferance, Hodge v.
Klug, 33 Mass. App. Ct. 746 (1992), can raise many
claims which if successful will defeat a landlord’s
claim for possession.
In Mulvanity v. Pelletier,
40 Mass.App.Ct. 106
(1996), the Court interpreted Section 8A expansively to
permit counterclaims by a grandmother against her
grandson. She claimed he breached an oral agreement for
a life tenancy she made with his mother and father. The
Court, noting how summary process has evolved from its
original focus to regain possession recognized that
tenants “may now counterclaim on any matter arising out
of the rental of such property ...” The Court permitted
the grandmother’s counterclaims for intentional
infliction of emotional distress.
The court held that [the grandmother] claim falls
within the scope of the counterclaims authorized by
§8A.18 [Her] counterclaim describes the extreme and
18
The court raised the issue whether the phrase “or for a violation of any other law” referred
to “statutory law only” implying the possibility that the phase “any other law” might include
common law claims as well.
-61outrageous conduct complained of as the "[landlords']
willful and intentional failure to honor the lifetime
lease they agreed to when the residence was transferred
to them," ... The gist of this counterclaim, in other
words, is that the plaintiffs attempted to evict her,
without benefit of process, by violating the covenant
of quiet enjoyment and subjecting her to escalating
degrees of emotional trauma. In this case it is not
practicable, nor from the perspective of sound judicial
administration is it desirable, to attempt to sever the
allegations constituting the breach of warranty of
quiet enjoyment from those constituting the tort of
intentional infliction of emotional distress. It was
error to dismiss the emotional distress counterclaim..
Many of the tenant’s potential claims carry triple
damages and attorneys’ fees. For the landlord trying to
evict a difficult tenant a lot is at stake. The
landlord faces the real possibility of not only failing
to collect the rent arrears but also: (1) losing the
right to regain possession; (2) losing money because of
the tenant’s counterclaims; and (3) having to pay the
tenant’s attorneys’ fees. For a landlord to get
-62possession he must either evict the tenant “for cause”
or, as a practical matter, be prepared to win a
judgment on counterclaims raised under Section 8A.
Understanding how to defend these claims and how
to avoid them is essential.
The next portion of this material will look at the
tenant’s common claims and the steps and techniques
which a landlord can use to deal with them.
WARRANTY OF
HABITABILITY
-59THE IMPLIED WARRANTY OF HABITABILITY
By far the most common counterclaim is the claim
for breach of implied warranty of habitability – that
the landlord maintained the dwelling in an unfit
condition. The breach of warranty is triggered by
conditions which may endanger or materially impair the
health or safety and well-being of the occupants.
Altschuler v. Boston Rent Board, 12 Mass. App. Ct.
452,457 (1981) citing Boston Housing Authority v.
Hemingway, 363 Mass. 184, 200 n.15 (1973). But the
dwelling doesn’t have to be totally uninhabitable to
violate the warranty. Id. at 458. The phrase is a term
of art. The Sanitary Code in 105 CMR 410.750 lists
conditions which are deemed to endanger or impair and
includes “any other condition so certified by the board
of health to be a violation which may expose or subject
to harm, the health or safety and the well-being of an
occupant or the public.”
Since the claim relates to the condition of the
premises, Section 8A requires the tenant to prove: (1)
conditions which materially endanger or impair the
health, safety or well-being of the occupants; and (2)
-60that the landlord or the person to whom they
customarily pay rent, knew of the conditions before the
tenant fell into arrears. If the inspection report
cites conditions listed in Section 410.750, the report
is prima facie evidence of its findings, proof that the
owner knew of the conditions from the date of the
report and proof that the conditions materially
endanger or impair the health and safety of the
occupants. All that remains for the tenant to prove
under Section 8A is that he didn’t cause the violations
in areas under his control. If the court believes the
tenant on this issue, the court will award damages to
him measured by the percentage reduction in use value
of the dwelling during each month during which the
landlord breached the warranty.
The court has excluded two defenses. A landlord's
failed but good faith attempts to repair defective
conditions in an apartment have no bearing on the claim
or calculation of a rent abatement for the time periods
during which the defects persist. Berman & Sons v.
Jefferson, 379 Mass. 196, 198 (1979). Good faith is not
a defense.
-61The fact that a tenant agrees to pay less for the
apartment than its full value as warranted is not a
defense. A landlord cannot nullify the implied warranty
of habitability by giving his tenant a discount in
rent. Haddad v. Gonzalez, 410 Mass. 855 (1991).
Because an improperly installed kitchen cabinet
isn’t listed in Section 750 and there was no evidence
of its certification by the inspector, it didn’t
violate the warranty of habitability. Spaulding v.
Young, 32 Mass. App. Ct. 624,627 (1992). But the Court,
quoting Boston Housing Authority v. Hemingway, supra
stated: ”We are aware that ‘[t]here may be instances
where conditions not covered by the [Sanitary or
Building Codes] render the apartment uninhabitable
(citation omitted).’ In those instances, the [trial
court] is given ‘broad discretion to determine whether
there is a material breach ... (citation omitted).’
Here the [trial] judge found that there was no material
breach of the warranty of habitability. There is
nothing in the evidence that required a different
result.” (emphasis in the original). Spaulding v.
Young, supra at 628.
-62Likewise, failure to install guards or stops on
windows of a third floor apartment does not violate the
warranty. Lynch v. James, 44 Mass App. Ct. 448 (1998).
The guards are not required by the Sanitary Code and
were not certified by the local inspector.
In Doe v. New Bedford Housing Authority, 417
Mass. 273,281 (1994), the court noted that the question
whether the warranty of habitability was limited to
code violations was an open question. In Doe, the
tenants claimed that the presence of uninvited persons
on the property engaged in unlawful conduct was a
breach of the warranty. The Court said it was not. The
Court declined to expand the warranty to include the
tenant’s claim. While not expressly limiting warranty
claims to code violations, it stated: ”[The] implied
warranty of habitability is concerned with the
provision, maintenance, and repair of the physical
facilities vital to the use of the leased ...
premises.” Id. at 282
(emphasis in original).
In Lynch v. Jones, decided after Doe, the issue
was whether the lack of window guards violated the
warranty. Even though the lack of window guards was a
-63condition affecting the physical condition of the
dwelling, the absence of the guards, not required by
any code, were not “vital to the use of the leased
premises.” Lynch, supra at 450 (emphasis added).
In McAllister v. Boston Housing Authority, 429
Mass. 300 (1999), the tenant fell on ice on exterior
stairs and claimed that the landlord was liable under
the implied warranty of habitability for the resulting
injuries because of the failure of the landlord to
comply with Sanitary and Building code provisions that
require the removal of snow and ice. See 105 CMR
410.452. The Court said: the warranty is concerned with
the maintenance, and repair of the physical facilities
vital to the use of the leased premises" quoting Doe v.
New Bedford Housing Authority, 417 Mass. 273, 282. It
then said: “Not every breach of the State sanitary code
supports a claim under the implied warranty of
habitability. Rather, the implied warranty of
habitability applies to significant defects in the
property itself,” citing Berman & Sons v. Jefferson,
379 Mass. 196, 201-202 (1979) ("A dwelling afflicted
with a substantial Sanitary Code violation is not
-64habitable"). The Court then cited a
several cases to
give examples of what it meant. Cruz Mgt. Co. v.
Thomas, 417 Mass. 782, 787 (1994) (apartment lacked
adequate heat, hot water, and fire escape; was infested
with cockroaches, mice, and rats; had unsanitary common
areas; and had defective smoke detector, windows, and
wiring); Simon v. Solomon, 385 Mass. 91, 93, 96, (1982)
(water and sewage repeatedly flooded apartment);
Crowell v. McCaffrey, 377 Mass. 443, 451, (1979)
(defective railing on third-floor porch).
The tenant’s warranty claims have to meet the
standards described in the case law. First, claim
usually requires code violations which are listed in
Section 750. Second, these violations should affect the
physical condition of the premises. Third, these
violations should be “substantial” and should deprive
the tenant of something “vital” to the use of the
premises.
The warranty cases also show how important the
inspection report is to a court’s findings. The report
-65is prima facie evidence.19 This means that a court must
find for the tenant unless the landlord rebuts the
evidence. The landlord has the burden of producing
evidence to warrant a different result from that stated
in the report. Smola v. Higgins, 42 Mass. App. Ct.
724,727-728 (1997); Elliott v. Chaouche, 2000 WL 121785
Mass. App. Div. 2000.
“[U]nrebutted prima facie evidence required the
trial court to make a finding in the [tenant's]
favor
that lead paint and other Code violations existed in
the apartment, and the judge so found. The ‘Minimum
Standards’ of the State Sanitary Code ‘provide a trial
court with the threshold requirements that all housing
must meet. Proof of any violation of these regulations
would usually constitute compelling evidence that the
apartment was not in habitable condition ... [emphasis
supplied].’
(Citations omitted).” The court found that
because the violation was listed in Section 750 it was
19
"Prima facie evidence, in the absence of contradictory evidence, requires a finding that
the evidence is true; the prima facie evidence may be met and overcome by evidence
sufficient to warrant a contrary conclusion; even in the presence of contradictory
evidence, however, the prima facie evidence is sufficient to sustain the proposition to
which it is applicable." Anderson's Case, 373 Mass. 813, 817 (1977). See also, Simon v.
Weymouth Agricultural & Indus. Society, 389 Mass. 146, 151, (1983).
-66“always a condition which may endanger the health or
safety of the occupant.” “Of course, whether any defect
or code violation, even the presence of lead paint,
actually does endanger health or safety in a particular
case, and hence constitutes a breach of the warranty of
habitability, is a question of fact for the trial judge
or jury.” For this proposition the court cited Young v.
Patukonis, 24 Mass.App.Ct. 907, 910, (1987); McKenna v.
Begin, 5 Mass.App.Ct. 304, 308 (1977).
This obviously makes the inspector’s report
extremely important. The State Sanitary Code expressly
permits appeals from findings of the inspector. 105 CMR
410.730-734; 105 CMR 400.500(A). On appeal the
inspector’s findings can be reversed or altered. Yet
landlords usually ignore their appellate rights under
the State Sanitary Code. A landlord may not be able to
count on showing, at trial, that the inspector was
wrong. A landlord’s failure to appeal collaterally bars
her from challenging the findings in a later court
case. “For purposes of this appeal, it is enough to say
that the plaintiff is bound by the unchallenged and
unappealed decision of the board of health ...” Lezberg
-67-
v. Rogers, 27 Mass. App. Ct. 1158, 1159 (1989). The
inspector’s findings are conclusively determined
against the landlord. Id. See Burofsky v. Turner, 274
Mass. 574,582 (1931); Boston v. Ditson, 4 Mass. App.
Ct. 323, 337 (1976); Di Maggio v. Mystic Building
Wrecking Co., 340 Mass. 686 (1960).
Landlords can require tenants to prove the
essential elements of a tenant’s case proving the
elements of Section 8A. The landlord should remember
that the tenant must prove that he didn’t cause the
conditions found in that part of the premises under his
control and the condition is not one reasonably
attributable to a landlord.
The landlord should present argument and evidence
on the issue of damages. "Damages for breach of the
implied warranty of habitability are measured by ‘the
difference between the value of the dwelling as
warranted (the rent agreed on may20 be evidence of this
value) and the value of the dwelling as it exists in
20
The actual rent paid by the tenant is usually the fair market value but not necessarily.
Haddad v. Gonzalez, 410 Mass. 855,872.
-68its defective condition.' Boston Hous. Auth. v.
Hemingway, 363 Mass. 184, 203 [293 N.E.2d 831] (1973)
(footnote omitted). Darmetko v. Boston Hous. Auth., 378
Mass. 758, 761
n. 4, 393 N.E.2d 395 (1979). See
Haddad v. Gonzalez, 410 Mass. 855, 872, 576 N.E.2d 658
(1991). This measure of damages is purely compensatory.
It "gives a tenant ... the benefit of the bargain
because the implied warranty of habitability is part of
the bargain" the tenant makes with a landlord when the
tenant agrees to pay rent. Haddad v. Gonzalez, supra at
872.
Recovery on this basis is neither a windfall to
the tenant nor an award of punitive damages. It is
compensation for the infringement of a contractual
right.” Cruz Management Co., Inc. v. Sideman, 417 Mass.
771.
Damages in these cases are hard to measure
precisely. The trial court has wide discretion. Brown
v. LeClair, 20 Mass. App. 976 (1985); Young v.
Patukonis, 24 Mass. App. Ct. 907,910 (1987). The court
has to consider the factors referred to by the Appeals
Court, McKenna v. Begin, 3 Mass. App. Ct. 168,171
(1975). When valuing defective premises, "consideration
-69is to be given to various factors including, but not
limited to, the nature, duration and seriousness of
defects and whether they may endanger or impair the
health, safety or well being of the occupants." See
Curtis v. Surrette, 49 Mass. App. Ct. 99 (2000). The
court can disregard minor code violations. McKenna v.
Begin, 5 Mass. App. Ct. 304,308 (1977); Young v.
Patukonis, 24 Mass. App. Ct. 907,910 (1987).
THE CONSUMER
PROTECTION ACT
-68G.L. c. 93A
THE CONSUMER PROTECTION ACT
UNFAIR AND DECEPTIVE TRADE PRACTICES
The legislature enacted The Consumer Protection
Act, G.L. c. 93A to protect consumers from unfair or
deceptive acts – to provide a balance in the
relationship between consumers and business. Com. v.
DeCotis, 366 Mass. 234 (1974). The statute prohibits
“unfair or deceptive” acts or practices in the conduct
of trade or commerce. G.L. c. 93A, § 2(a).
A landlord is engaged in trade and commerce in the
meaning of The Act. G.L. c. 93A, § 1. McGrath v.
Mishara, 386 Mass. 74 (1982).21
The phrase “an unfair
or deceptive trade practice” has no rigid definition.
The Court will examine whether an act “offends public
policy” expressed in statutes or in the common law or
if it is “immoral, unethical, oppressive or
unscrupulous.” Purity Supreme, Inc. v. Attorney
General, 380 Mass. 762, 777 (1980). A business practice
21
The statute does not apply to a landlord-owner of owner occupied premises. Billings v.
Wilson, 397 Mass. 614 (1986);Young v. Patukonis, 24 Mass. App. Ct. 907,910 (1987).
-69is deceptive if it could “reasonably have been found to
have caused a person to act differently from the way he
otherwise would have acted.” Lowell Gas Co. v. Attorney
General, 377 Mass. 37, 51(1979). See 940 CMR Section
3.16. An act is not unfair or deceptive just because it
is negligent or because it violates a lease. Squeri v.
McCarrick, 32 Mass. App. Ct. 203, 207 (1992)
("negligent act standing by itself does not give rise
to a claim under c. 93A"). Atkinson v. Rosenthal, 33
Mass. App. Ct. 219, 226 (1992) (lease violation alone
found insufficient to satisfy the unfairness
requirement of c. 93A). See Massachusetts Employers
Ins. Exch. v. Propac- Mass, Inc., 420 Mass. 39, 43
("breach of contract alone does not amount to an unfair
act or practice under G.L. c. 93A, § 2"). However,
major breaches of the implied warranty of habitability
compel a finding, as a matter of law, of a violation of
c. 93A. See Cruz Mgmt. Co. v. Thomas, 417 Mass. 782,
790 (1994).
The Attorney General has promulgated regulations
describing specific acts which are unfair and deceptive
trade practices in the landlord-tenant relationship.
-70940 CMR § 3.17. These regulations have the force of
law. They affect the contents of written agreements,
security deposits and the landlord’s conduct generally.
Renting a dwelling with a condition in violation
of law that may endanger or materially impair the
health, safety, or well-being of the tenant; failure to
maintain a dwelling in conformity with the State
Sanitary Code; failure to disclose, at the beginning of
the tenancy, a condition violating the law, violations
of the Security Deposit Law – all are violations of
Chapter 93A. See 940 CMR 3.17
If tenant wins a 93A claim, the Court awards "up
to three but not less than two times [the actual
damages] if the court finds that the use or employment
of the act or practice was a willful or knowing
violation ... or that the refusal to grant relief upon
demand was made in bad faith." The landlord’s code
violations are “willful or knowing” if the landlord
knew of their existence regardless of whether he knew
that the condition actually violated the code. Montanez
v.
Bagg, 24 Mass. App. Ct. 954 (1987). But see Knott
v. Laythe, 42 Mass. App. Ct. 908 (1997).
-71“By renting the apartment the defendant warranted
its habitability. Boston Housing Authy. v. Hemingway,
363 Mass. 184, 293 N.E.2d 831 (1973). He was cognizant
of conditions, particularly the lack of adequate
heating facilities, that rendered it uninhabitable.
These facts ... compel the conclusion that the
defendant, at the very least, had made a wilfully false
representation in violation of G.L. c. 93A, § 9,
because he had "made the representation without knowing
whether it was true or false and with reckless
disregard for whether it was true or false." ....
Neither the failure of the defendant to apprize himself
fully of the law, nor his misapprehension of what he
did know about his obligations, is sufficient in the
circumstances to negate the conclusion that his conduct
runs afoul of the penalty provisions of G.L. c. 93A, §§
9.Cf. Berman v. Jefferson, 379 Mass. 196, 396 N.E.2d
981 (1979). The "willful or knowing" requirement of §§
9(3), goes not to actual knowledge of the terms of the
statute, but rather to knowledge, or reckless
disregard, of conditions in a rental unit which,
whether the defendant knows it or not, amount to
-72violations of the law.” Montanez v. Bagg, 24
Mass.App.Ct. 954,957 (1987) (Emphasis added).
While multiple damages are not automatically
available for a violation of c. 93A, a party prevailing
on a c. 93A claim is automatically entitled to
attorneys' fees. The court will award multiple damages
to a tenant for breach of the warranty of habitability
if the court finds either a knowing or wilful disregard
of the conditions in an apartment or a bad faith
refusal to respond to a tenant's complaints. See Knott
v. Laythe, 42 Mass.App.Ct. 908, 910 (1997).
Chapter 93A can be costly to a landlord. In a
breach of warranty case, for example, actual damages
are measured by the difference in value in the
apartment as warranted and as maintained with the code
violations. The Court subtracts the diminished value
from the fair market rent.
Under Chapter 93A
violations, the actual damages will be doubled or may
be tripled.
GENERAL LAWS CHAPTER
186,
SECTION 14
COVENANT OF QUIET
ENJOYMENT
-72G.L. c. 186, SECTION 14
BREACH OF THE COVENANT OF QUIET ENJOYMENT
G.L. c. 186, § 14, is the legislative codification
of the common law doctrine known as the implied
covenant of quiet enjoyment. Simon v. Solomon, 385
Mass. 91,101-102 (1982). The term “quiet enjoyment”
does not mean quiet. It means that the landlord
implicitly guarantees the tenant’s “right to freedom
from serious interferences with his tenancy – acts or
omissions that ‘impair the character and value of the
leased premises.’” Id. at 102.
The statute provides in part: “any lessor or
landlord who directly or indirectly interferes with the
quiet enjoyment of any residential premises by the
occupant ... shall ... be liable for actual and
consequential damages or three month's rent, whichever
is greater, and the costs of the action, including a
reasonable attorney's fee." The statute also imposes
criminal penalties.
At common law, and as originally enacted by
statute (1927), the covenant of quiet enjoyment
prohibited a landlord from wilful or intentional
-73interference with a tenant's quiet enjoyment of the
leased premises. In 1973, the statute was rewritten.
The amendment eliminated the requirement of intentional
conduct and prohibited landlords from “directly or
indirectly” interfering
with a tenant's quiet
enjoyment of the premises.
In Simon v. Solomon,
supra, the Court concluded that to prove a landlord’s
civil liability a tenant didn’t have to prove malicious
intent. The statute prohibited the reckless conduct
shown in that case. In Cruz Mgt. Co. v. Thomas, 417
Mass. 782, 788-790, (1994), the Court concluded that a
landlord’s conduct involving "some degree of fault,"
was enough to impose liability under Section 14. The
Court pointed out that a landlord's failure "to repair
defects of which he has notice in leased premises is an
omission which frequently has been deemed to violate
Section14." Id. at 789.
In Al-Ziab v. Mourgis, 424 Mass. 847 (1997), the
Court finally clarified the rule. A tenant can’t prove
a Section 14 violation unless the tenant proves that
the landlord was negligent. The Court said that mere
violation of the lead paint statute alone wasn’t enough
-74to prove negligence. Stated differently, to win a claim
under Section 14 for lead poisoning the tenant must
show that the landlord had notice of, or reason to know
of, the presence of lead and failed to take appropriate
corrective measures.
In Al-Ziab, the tenant did not press the Section
14 issue because the tenant could get an award for
greater money damages. The tenant had won damages under
the lead paint statute. If the Court found that the
lead paint also violated Section 14, the court had to
award
attorneys’ fees to the tenant. The trial court
awarded the tenant over $63,000 in attorneys’ fees on
this theory. The lead paint statute does not provide
for attorneys fees.
In Ianello v. Court Management Corp., 400 Mass.
321, 323 (1987), the Court found that a landlord
violates Section 14 when his conduct impairs the value
of the leased premises. In Blackett v. Olanoff, 371
Mass. 714 (1977), the Court found a breach of the
common law where a landlord rented a portion of the
building to a cocktail lounge which created disturbing
noises for the residential tenants. The failure to
-75supply heat is a violation. Dorgan v. Loukas, 19 Mass.
App. Ct. 959 (1985), even if the landlord was unable to
afford the cost of fuel Lowery v. Robinson, 13 Mass.
App. Ct. 982 (1982). A landlord's failure to repair
defects which he knows is a Section 14 violation.
Typically, however, these are not minor violations. See
Simon v. Solomon, supra at 103, (failure to control
floods in tenant's apartment); Darmetko v. Boston Hous.
Auth., 378 Mass. 758, 761 (1979) (failure to repair
leaky roof); Dorgan v. Loukas, 19 Mass. App. Ct. 959,
960 (1985) (failure maintain apartment in habitable
condition). Ringing of the smoke alarms for more than
one day is a violation. Manzaro v. McCann, 401 Mass.
880 (1988). The landlord’s failure to take action to
remove tenants engaging in unlawful conduct from the
complex could be a violation, Doe v. New Bedford
Housing Authority, 417 Mass. 273 (1994). In Doe, the
Court reversed a judgment for the landlord because "the
record suggests that the [landlord] stood idle, despite
continued requests and complaints by the tenants ...
and stood idle when there were certain [corrective]
measures that it could have taken relatively easily."
-76The Court decided that, in a Section 8 tenancy, the
amount of rent trebled under the statute is the total
contract rent and not the smaller amount paid by the
tenant.
In addition to the general prohibition against
interference with the tenant’s quiet enjoyment, Section
14 prohibits certain conduct specifically.
A landlord
violates the statute if she:
(1)
if being required by law or by the express or
implied terms of any contract or lease or tenancy at
will, willfully or intentionally fails to furnish
water, hot water, heat, light, power, gas, elevator
service, telephone service, janitor service or
refrigeration service at any time to the occupant of a
building when these services are necessary to the
occupant’s proper or customary use;
(2)
directly or indirectly interferes with the
furnishing by another of these services;
(3)
transfers the responsibility for payment for
any utility services to the occupant without his
knowledge or consent;
(4)
attempts to regain possession of the
-77premises by force without benefit of judicial process.
Each of these violations subject the landlord to
penalties – civil and criminal. The landlord who
violates this section must pay the tenant the tenant’s
actual damages or three times the monthly rent,
whichever is greater and is also responsible for the
tenant’s attorneys fees.
RETALIATORY EVICTION
-77RETALIATORY EVICTION
Retaliatory eviction had its origin in the First
Amendment. Courts found that court approval of an
eviction, started in reprisal for the tenant’s
complaint to the health department, chilled the
tenant’s’ First Amendment rights. Edwards v. Habib, 130
U.S. App. D.C. 126, 397 F.2d 687 (1968). See Lavoie v.
Bigwood, 457 F.2d 7 (1st Cir., 1972). Massachusetts has
codified this principle in two separate statutes – G.L.
c. 239, § 2A, and G.L. c. 186, § 18.
The first statute, G.L. c. 239, § 2A, makes
retaliatory eviction a defense in a summary process
action. If the tenant proves that the tenancy was
terminated in reprisal for her engaging in conduct
protected by the statute, the landlord does not get
possession. Section 2A applies, wherever a tenant has
taken any step "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
-78[c. 186, Section 18] ..." If a landlord starts an
eviction case, serves a notice to quit or tries to
alter the terms of the tenancy within six months of the
tenant's action, the statute creates a rebuttable
presumption that the landlord’s action is retaliatory.
The landlord can rebut the presumption only by proving
with clear and convincing “evidence that: (1) the
termination wasn’t in reprisal; (2) that he had
sufficient independent justification for taking the
action; and (3) would have in fact done what he did, in
the same manner and at the same time, even if the
tenant hadn’t engaged in the protected conduct.
The
second reprisal statute, G.L. c. 186, § 18, unlike G.L.
c. 239, § 2A, entitles a tenant to file a claim or
counterclaim for damages in the amount of not less than
one, nor more than three, month's rent. If successful,
the tenant also gets costs and reasonable attorney's
fees. Like § 2A, § 18 creates a "rebuttable
presumption" that action by the landlord within six
months of the tenant's complaint or report was an
unlawful reprisal, and provides that a landlord can
overcome the presumption only by "clear and convincing"
-79proof
that he had an independent and justifiable basis
for his eviction or other actions. The two statutes
differ. The rebuttable presumption created by Section
18 does not arise if the tenancy is terminated for
nonpayment of rent. Section 18 states: "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 the tenancy
within six months after the tenant has ... made such
report or complaint ... shall create a rebuttable
presumption ...” This appears to prevent a counterclaim
in non-payment case. The same language is not in G.L.
c. 239, § 2A. Does this mean that the tenant can defeat
an eviction by proving the 14 Day Notice was in
reprisal but cannot counterclaim for damages?
The word “reprisal” is construed to include a
broad spectrum of conduct if the landlord is trying to
get back at the tenant, it is probably reprisal.
Scofield v. Berman and Sons, Inc, 393 Mass. 95 (1984).
In Scofield the landlord would not let the tenant
continue to rent after termination of the lease
although that had been his policy for all other
-80tenants. However, the Court has determined that the
tenant must have actually engaged in one of the
activities as described in the statute.
Therefore the
statute didn’t apply to the landlord’s increase in rent
of a tenant who refused to sign a lease because it had
provisions in violation of the lead paint statute.
Manzaro v. McCann, 401 Mass. 880 (1988). In Manzaro,
the tenant didn’t engage in any one of the acts
specified in the statute as protected acts.
THE DISCOVERY PROCESS
Discovery is the process used by a party to a
lawsuit to obtain information about the opposing
party’s positions in the suit. It can take the form of
“Interrogatories” (questions), “Requests for
Production” (asking for documents or other things),
“Requests for Admissions” (asking the party to admit to
the truth of certain statements or documents) and
“Depositions” (sworn testimony taken before trial).
Rule 7 of the Summary Process Rules specifically
allows the parties to use interrogatories (no more than
30), requests for admission (no more than 30), and
-81requests for production. Other discovery is allowed but
only if allowed by the court after a motion (request to
the court) for good cause.
The request for discovery must be served no later
than the Monday after the entry date (usually the
Answer date). This means that the landlord has to
decide to use the discovery process BEFORE the answer
and counterclaim is served or ask the court for
permission to serve it after the answer is filed. Rule
7 specifically states that “a request for discovery in
response to an answer or counterclaim shall be deemed
to establish good cause.”
When a party serves discovery requests, the trial
date is automatically postponed for two weeks and the
other party is required to respond to the request
within ten days. If a party fails to respond, the other
party may serve and file a motion to compel within five
days after the failure to respond. The court has the
power to compel responses or to dismiss the nonresponding party’s case. The court has broad
discretionary authority to order relief against the
defaulting party including issuing an order finding
-82that certain matters (about which discovery was sought)
be taken as true for the trial, or
refusing to allow
the defaulting tenant to proceed an aspect of the case
or rendering judgment against the defaulting party
altogether.
While there are some obvious drawbacks ~ the two
week delay being one of them ~ there are advantages to
using discovery in selected cases. (1) The landlord can
learn the tenant’s position about conditions
counterclaims. For example, what conditions will be
claimed? When the landlord is alleged to have learned
of them? What effect the tenant claims the conditions
have on the use of the premises? Who are the tenant’s
witnesses? (2) The landlord can use the answers to
interrogatories (or the admissions) as evidence. The
landlord can use every statement made by a tenant as
“an admission” of the truth of that statement. For
example, assume the tenant is asked: “List the
conditions you told the landlord about at the meeting
on the 15th” and that she answers describing three
conditions. If at trial she testifies that there were
seven conditions, her answer that there were three can
-83be used against her. (3) The landlord can get copies of
documents which the tenant is going to use at the
trial. For example, the landlord may learn that the
tenant is going to use a “letter from another tenant”
as evidence at trial. Since this letter is not
admissible into evidence the landlord knows a lot more
about how the trial will proceed. (4) The landlord’s
use of discovery will balance the one-sidedness of the
process. Many tenants use discovery because they are
given the forms by a court. The tenant simply checks
off the boxes and he has asked interrogatories,
requested documents and made requests for admissions.
If the case is going to be postponed anyway, why
shouldn’t the landlord seek discovery?
If the tenant fails to respond, or responds
inappropriately to the landlord’s discovery requests,
the landlord should file a motion asking the court to
compel the response or for other appropriate sanctions
SAMPLE DISCOVERY
Here are some examples of discovery landlords have
used. Don’t use these samples slavishly. Design the
-84requests to elicit what is needed in each particular
case. These samples are provided to suggest ideas not
as for borrowing without thinking. Also included is a
sample motion to compel. It must be served and filed
within five days after the tenant has failed to
respond. It can be marked for a hearing on the trial
date (or sooner if the time permits). Be prepared to
show the court why the discovery is needed. Point to
the fact that you complied with the tenant’s requests,
the nature and extent of the tenant’s counterclaims,
the ease with which the responses can be made and any
other argument which will convince the court to grant
the motion.
-85COMMONWEALTH OF MASSACHUSETTS
THE TRIAL COURT
HOUSING COURT DEPARTMENT
Worcester, ss.
Division
Worcester
C.A. No. 03-SP-
XXX
LOUISE LANDLORD,
Plaintiff
v.
Plaintiff's Motion To
Compel
Discovery or Dismiss
Defenses and
Counterclaims
TOM TENANT,
Defendant
ORIGINAL TRIAL DATE:
Plaintiff asks the Court for an order compelling
discovery of the Defendant, or, granting such other
relief as the court deems just pursuant to Rule 37(a)
(2) & (4) of the Rules of Civil Procedure and Rule 7(d)
of the Summary Process Rules.
1.
On
,
Plaintiff served and filed Interrogatories, Request for
Production of Documents and Request for Admissions upon
Defendant in accordance with Rule 7(a) of the Summary
Process Rules.
2.
Pursuant to Rule 7(b) of the Summary Process
Rules, Plaintiff advised Defendant that responses to
the discovery demands were required to be served upon
defendant's attorney no later than ten (10) days after
receipt of the demand for discovery.
-863.
Defendant was required to serve and file
responses to the discovery demands no later than
.
4.
Plaintiff has not filed any motion for
protective orders or other relief from the discovery
demands served.
5.
Defendant has failed and/or refused to serve
and file Answers to the Interrogatories, Responses to
the Request for Admission and Response to the Request
for Production though the same were due on
.
6.
Pursuant to Rule 7(d) of the Summary Process
Rules, Plaintiff is required to bring the matter of
Defendant’s failure to the Court's attention within
five (5) days of the plaintiff's failure to comply and
prior to the re-scheduled trial date.
7.
The re-scheduled trial date is
.
Wherefore, the Plaintiff asks the court to order
the Defendant to comply with the discovery requests
served upon her or in the alternative requiring a
finding that Defendant has engaged in the conduct
described in the notice to quit which underlies this
summary process action.
Louise Landlord
By her attorney,
Dated:
CERTIFICATE OF SERVICE
I,
, hereby certify that I have
this
served a true copy of the above
Motion by mailing, first-class mail, postage-prepaid, to:
.
COMMONWEALTH OF MASSACHUSETTS
THE TRIAL COURT
HOUSING COURT DEPARTMENT
Worcester, ss.
Division
Worcester
C.A. No. 03-SP-
XXX
LOUISE LANDLORD,
Plaintiff
Plaintiff's
Interrogatories
v.
Production
TOM TENANT,
Defendant
ORIGINAL TRIAL DATE:
to Defendant and
Request for
and Admission
TO:
FROM:
TOM TENANT
LOUISE LANDLORD
LOUISE LANDLORD, the Plaintiff, requires you to
answer these questions under oath.
You must also
produce the documents requested and admit or deny the
statements on the last two pages.
You are required to
respond as requested because of Rule 7 of the Summary
Process Rules.
Your responses are due in ten (10) days.
Under Rule 7 the trial is automatically postponed
for two (2) weeks until
from _________, 20
____________, 20
.
QUESTIONS TO BE ANSWERED UNDER OATH
(Subsidized Housing Questions - Chronic Late Payment)
10.
Please state the dates on which you paid your rent for each of the months
during the year 20
:
(Subsidized Housing - Household Income)
11.
Please answer the following questions about __________:
-89-
12.
(a)
How long have you known____________?
(b)
Does he contribute any money toward the household expenses?
(c)
Does he reside in your apartment?
If you claim that _____________ does not reside in your apartment, please
state:
(a)
whether he ever did reside in the apartment which you rent from the
plaintiff:
(b)
how often does he visits the apartment in which you live?
(c)
if he does not live in your apartment, what is his residential
address? ________________ ; How long he has lived at
that address?
1.
Are you employed? If you are employed, what is the
name and address of your employer, and, how long have
you worked there?
-90-
13.
Please list the dates on which ________________ has stayed in your
apartment during the last six months:
(Information About Probable Witness)
14.
Please state if you know Ms.
and if so, how you know her,
when you first met her, the nature of your relationship with her and her
residential address:
15.
If you know whether Ms. _____________ is employed, please state where
she is employed:
16.
State the name and address of each person whom you expect to call as a
witness at the trial of this action, describing as to each such witness:
-91(a)
what you expect the witness to say:
(b)
your relationship to the witness:
(c)
what you expect the witness is say:
(d)
explain when the witness saw or heard the incidents about which
the witness is expected to testify:
17.
List each and every date you received a notice from the landlord in which
she claimed you violated your lease :
(Communications with the Landlord)
18.
After you received the Notice to Quit dated
any conversations with the landlord about the notice?
did you have
-9219.
If the answer to Question 10 is “yes,” please describe what you said, to
whom you spoke, and what that person said and the details of the
conversation:
20.
Why do you think the landlord sent you the Notice to Quit?
21.
Have you ever complained to the landlord or told the landlord about any
problem which the landlord failed to address?
22.
If the answer to Question 13 is “yes,” please list and describe each
complaint you made, the date, and the person to whom you complained:
(Substandard Conditions)
23.
If you are going to claim that you do not owe rent because of substandard
conditions in your apartment then please respond to the following:
(a)
list each condition, and the date it first arose;
-93___________________________________________
(b)
for each condition, the date on which you first told the
landlord;_______________________________________
(1)
for each condition, how you first told the landlord - in writing or
orally; ________________________________________________
(d)
give us the names and address of any person present when you told
the landlord about these conditions; ____________
________________________________________________
(e)
list each condition which has been repaired and the date it was
repaired;
________________________________________________
(f)
explain how each condition affected your use of the premises;
(g)
explain what the landlord did about each of the problems to which
you have referred.
_________________________________________
24.
If you claim that the rental value of your apartment has been reduced
because of any substandard conditions, please list each condition and the
percentage by which the value of the premises has, in your judgment, been
reduced. Explain how you arrive at this percentage for each condition you
list.
-94____________________________________________________________
____________________________________________________________
__________________________________________
25.
If you claim any financial loss or damage as a result of the landlord’s acts
or omissions, please describe: (a) the damage or loss; (b) how you
calculate the dollar value of the loss; and (c) exactly how the landlord
caused this loss or damage.
26.
In your Answer and Counterclaims, you state that the Board of Health
“wants to condemn the house.” Please specify: (1) the source and name of
the person who told you this information; (2) the date you obtained this
information; and (3) the date(s) and identification of any documents
supporting this conclusion or which refer to your statement that the Board
of Health “wants” to “condemn” the house.
______________________________________________________
27.
If you will claim that any conduct, behavior or omission of the landlord
violated any of your rights, please describe every such act or omission and
how it interfered with your rights.
_____________________________________________________
-9528.
Did you pay the landlord money to cover the last month's rent of your
tenancy? If so, in what amount?
__________________________________________________
29.
Did you pay the landlord money for a security deposit? If so, in what
amount? __________________________
When?______________________________
30.
Why and when did you stop paying rent to the landlord?
______________________________________________________
31.
Did you ever pay a bill for heat at the house? _______ Did you ever pay a
bill for sewer or septic service?_____ Have you ever received a bill for
either the heating fuel or sewer/septic service? _______If the answer is
“yes” to any of these questions, list each bill you paid, list each bill you
received, and the date and the amount of each of the bills which you list.
______________________________________________________
_____________________________________________________
(Disability Claims)
32.
Please provide the names of any person residing in the household who is
disabled as you allege in your Answer at paragraph “21." In addition to
identifying such person(s), describe fully the nature and extent of the
disability, the name(s), address(es) and phone number(s) of the
-96physician(s), psychologist(s) or other medical or professional person(s)
who made the diagnosis or diagnoses upon which your claim is based.
______________________________________________________
_____________________________________________________
33.
Please state when and how you told the landlord about the disability, and if
you ever asked for a reasonable accommodation, what reasonable
accommodation you asked for and what reasonable accommodation you are
now asking for
____________________________________________________________
________________________________________________
34.
Please state how the accommodation(s) you are now asking for or have
requested are necessary.
______________________________________________________
35.
Describe fully and with all of the details exactly how the landlord
discriminated against you or a member of your
household._____________________________________________
_____________________________________________________
36.
Since you agreed to vacate the house on or before
,
why did you not vacate the premises as agreed?
____________________________________________________________
_______________________________________________
-97-
-98-
YOU MUST PRODUCE THESE DOCUMENTS AT THE OFFICE OF
PLAINTIFF’S ATTORNEY WITHIN 10 DAYS
THE OFFICE IS AT
37.
Copies of any written complaints which you sent to the landlord or anyone
else about your tenancy.
38.
Copies of any documents which you refer to in your response to the
Questions.
39.
Copies of any documents you will use during the trial.
40.
Copies of every notice you received from the landlord during the past
twelve months.
41.
Copies of any written complaints to the landlord or anyone else about the
conditions in the house.
42.
Copies of any reports from any public or private agency about the
conditions in or at the house.
43.
Copies of any medical or mental health records which you will claim
support your allegation that a person living in the premises is disabled.
44.
Copies of any bills for heat, heating fuel, sewer or septic system service or
supply and copies of any cancelled checks or receipts showing your
payment of any utility bills.
-99YOU MUST ADMIT OR DENY THE FOLLOWING STATEMENTS AND
THE AUTHENTICITY OF THE FOLLOWING DOCUMENTS
3.
You informed the landlord on
correct
4.
incorrect
You have never
correct
5.
, that you would
On
incorrect
the landlord asked you to remove the dog
from your apartment.
correct
6.
You work at the ____________ in
correct
7.
incorrect
You and
[the witness)
.
incorrect
are coworkers at the
___________.
correct
8.
incorrect
The plaintiff’s video camera, located at the entry of your building, shows
any person who enters in or leaves your apartment.
correct
9.
incorrect
The videos of the entranceway show that ______________ regularly stays
in your apartment overnight.
correct
incorrect
-10010.
___________ receives mail at your apartment.
correct
11.
incorrect
Attached are true and accurate copies of notices sent to you by the landlord
dated
,
, (Exhibit A).
correct
12.
incorrect
Attached are true and accurate copies of letters sent to you by the landlord
on
, and
, (Exhibit B).
correct
13.
incorrect
Attached is a true and accurate copy of your lease agreement signed on
(Exhibit C).
correct
14.
incorrect
You and the landlord agreed that your tenancy at the house would
terminate on
.
______correct _____incorrect
15.
You and the landlord entered into an agreement on
, to
settle the claims each of you had against each other and your landlord
waived your back rent of $
correct
16.
You signed the document dated
.
incorrect
which is attached as Exhibit D.
correct ___ incorrect
17.
You have not paid any rent for the premises from
to the
-101present.
correct
18.
You read the agreement dated
incorrect
, attached as Exhibit E,
before you signed it.
correct
19.
You haven’t paid any rent for the premises since before
correct
20.
incorrect
.
incorrect
You did not request a hearing to appeal any Board of Health inspection
report.
correct
21.
incorrect
The Title 5 inspection report which the landlord obtained for the septic
system at the premises showed that the septic system is in compliance with
Title 5.
correct
incorrect
Louise Landlord
by her attorney,
Dated: _________
EVIDENCE ISSUES
-103When preparing for the trial the landlord must
think: What must I, or my witnesses, tell or show the
judge that will convince the judge that I should be
able to evict this tenant. The landlord must prove his
prima facie case and be prepared to disprove or
discredit the tenant’s counterclaims.
The Prima Facie Case
Typically, the landlord will have to prove the
existence of the landlord-tenant relationship by
testimony if it is an oral tenancy at will or by
offering into evidence the original lease or written
tenancy agreement with testimony about what the
document is. Before the written document is offered to
the judge, the landlord has to testify that the
signature is hers and that of her tenant and how she
knows this is her tenant’s signature. ”He signed in
front of me”; “I am familiar with his signature and
this is his signature.” The landlord will have to prove
that the proper notice to quit was served upon the
tenant by offering the notice to quit into evidence
with the constable’s return (statement) of service or
-104by testimony as to how she served the tenant with the
notice. The landlord cannot testify about how another
person served the notice unless she saw it served.
The Counterclaims
When preparing for the counterclaims, the landlord
must consider: What does the tenant have to prove to
win on this counterclaim? Think it through very
logically. Write it down. Then think what the tenant
can use to prove her points and what evidence the
landlord has to disprove or discredit each item of the
tenant’s case.
For example if the tenant has a claim that the
landlord didn’t deposit the security deposit in the
proper bank account, she has to prove that she paid a
security deposit in a given amount (testimony and
cancelled check) and that the landlord did not place
the money in an interest-bearing account in a bank in
the Commonwealth under terms that protected it from the
landlord’s creditors including a foreclosing mortgagee
and a trustee in bankruptcy within thirty days after it
was paid (never got a receipt; asked for a return of
-105the deposit and never got it back). The landlord may
have a receipt or another document showing that the
money was not a security deposit but a last month’s
rent.
In a conditions counterclaim, the tenant has to
prove that the landlord knew of the condition her
testimony is enough.
The landlord must be prepared to understand some
elementary rules of evidence. Understanding some of the
rules will help prepare for trial and will help the
landlord keep inappropriate evidence from being
introduced at the trial. This is obviously not the
place for a course on the rules of evidence. The rules
are often not simple and there are exceptions within
exceptions. However, some basic understanding is
helpful.
THESE ARE ONLY VERY GENERAL PROPOSITIONS AND NOT A
FULL TREATMENT OF THIS COMPLICATED AREA OF THE LAW
(1)
Generally, statements (other than those made
by a party to the case) made by a person outside of the
courtroom cannot be used in the courtroom to prove the
truth of the asserted statement. These outside of the
-106courtroom statements are called “hearsay.” Hearsay can
be oral or written. Documents are typically hearsay.
They are written outside of the courtroom and if the
landlord tries to show the judge the document to prove
what the document says, the other party can object to
the admission of hearsay evidence. A statement by the
witness that: “John said he told the landlord about the
broken fixture,” is hearsay because the witness is
saying in court what John said out of court. A letter
from the repair person that she couldn’t get into the
apartment, is hearsay because it is asking the court to
believe that she couldn’t get into the apartment and it
was made out of the courtroom.
There are many exceptions to this rule. Some of
the most germane are:
(a)
the board of health report - A statute
states that it is admissible and that it is prima facie
evidence of the truth of its contents;
(b)
the statements of the opposing party. The
landlord can always testify what the tenant said to her
and vice versa. Documents which are the statement of
the opposing party also come within this exception;
-107(c)
certain certified public records are
admissible;
(d)
certain business records are admissible if
the proper person testifies that they are business
records made in the ordinary course of business.
Many people have the belief that letters from the
repair person, or the neighbor, the doctor or police
reports are admissible into evidence to prove matters
to the court. These documents are inadmissible hearsay.
Whenever a person is about to introduce hearsay
into evidence the other party should object to this.
(2)
Many landlords want to tell the judge about
the tenant’s scurrilous past with other landlords. Some
landlords go to great lengths to uncover exactly what
this tenant did to a former landlord. Their theory is
that the tenant is not telling the truth but is doing
the same thing to me as he did to his former landlord.
This kind of information is rarely, if ever, admissible
into evidence in an eviction. Evidence has to be
relevant to the case at hand. If it is not, it is not
admissible into evidence. The fact that the tenant has
been evicted for non-payment or for any other reason is
-108almost always not legally relevant evidence.
Relevance is defined by the issues before the
court. In other words, evidence is relevant if it tends
to prove one of the points which a party has to prove
to win the case. In the plaintiff’s case relevance is
determined by the points which the landlord has to
prove: that the landlord-tenant relationship existed
between him and the defendant (oral or written); that
it terminated - by a notice to quit or otherwise; that
the tenant remains in possession of the property and
that a certain amount of rent is due.
Relevance to the tenant’s counterclaims will
depend on the particular claim. In the typical warranty
of habitability claim the issues are: were there
conditions in the premises which breach the warranty;
did the landlord know of these conditions; when did the
landlord know of these conditions; how did the
conditions affect the tenant’s use of the premises; how
long did the conditions exist; who caused the
conditions ~ is the assumption that they are typically
tenant caused or not, see G.L. c. 239,
Section 8A;
what is the rent from which deductions, if any will be
-109made; has the tenant met the conditions imposed by G.L.
c. 239, § 8A, for raising a conditions counterclaim;
did the tenant refuse to permit the landlord access to
make the repairs. Evidence which tends to shed light on
these points will generally be relevant. Evidence which
doesn’t establish one of these points is not
admissible.
(3)
Evidence can be used to show that a witness
is not to be believed. This is called “impeachment”
evidence.
Bias - It
is proper to ask a witness questions
designed to show that she will tend to favor the other
side. Bias can be shown from the relationship of the
witness to the party ~ relative, friend, fear, etc. For
example, the landlord might ask on cross-examination:
“Isn’t it true that you are the brother of the tenant?”
Prior inconsistent statement of the witness - It
is proper, and often very helpful, to show that the
witness said something different at another time. For
example, if the tenant testifies that certain code
violations were in the property from the beginning of
the tenancy, the landlord will want to offer into
-110evidence the tenant’s written statement of conditions
signed in connection with the security deposit to the
effect that there were no bad conditions at that time.
The Landlord And The Disabled Tenant
THE DISCRIMINATION STATUTES/DEFENSE TO EVICTION
State and federal law prohibit discrimination in
almost every aspect of rental housing including initial
application, termination of tenancies, the landlord’s
rules and the provision of services. See G.L. c. 151B,
§ 4 (3B), (4A),(6),(7), (7A),(7B)(11) and (13); G.L. c.
111, § 199A; Title VIII of the Civil Rights Act of
1968, 42 U.S.C.
Section 3601 et seq.; 29 U.S.C. 794
(the federal Rehabilitation Act - applicable to
landlords who receive federal financial assistance) and
42 U.S.C. Section 12182(b)(3), the Americans With
Disabilities Act. These statutes, and the regulations
of the agencies administering them, are the basis for
defenses and counterclaims in eviction cases.
In general, state and federal law prohibits
discrimination based on race, ancestry, color,
-111religion, age, sex, sexual orientation,22 national
origin, children, marital status, receipt of public
assistance or disability. Courts have decided cases in
which landlords have violated these provisions. See,
for example, Worcester Housing Authority v. MCAD, 406
Mass. 244 (1989) (discrimination based on marital
status); Com v. Dowd, 37 Mass. App. Ct. 164 (1994)
(attorney’s fees application by Attorney General for
successful case involving marital status
discrimination). But see Attorney General v. Desilets,
418 Mass. 316 (1994) (focusing on conflict between
First Amendment and prohibition of discrimination based
on marital status); Gnerre v. MCAD, 402 Mass. 502
(1988) (landlord sexual harassment of tenant); MCAD v.
Franzaroli, 357 Mass. 112 (1970) (race discrimination).
22
“Which does not include persons whose sexual orientation includes minor children as the
sex object”
-112This text cannot present all of the issues,
concerns, claims and defenses arising under these
statutes. However, since the focus of the presentation
is managing difficult tenants, laws prohibiting
discrimination on the basis of handicap have particular
relevance. The landlord’s “difficult” tenant may be
someone with an emotional or mental handicap.
If the
landlord is not aware of this potential and tries to
evict a tenant whose behavior is caused by a
disability, the landlord may face a defense and/or
counterclaim for violation of the state and federal
prohibitions against discrimination.
When the reason for the eviction violates state or
federal law, Section 8A provides a defense.23 In
general, any claim which defeats the landlord’s right
to possession is a defense to eviction.24 As a general
rule, the Massachusetts discrimination statute, G.L. c.
151B, § 9, requires an aggrieved person to file a
23
The violation “of any law” may act as a defense to eviction. Section 8A.
24
G.L. c. 231, § 31, codifies this general legal principle for actions in the District Court.
-113complaint with the Massachusetts Commission Against
Discrimination BEFORE filing a court action.25
However, the same provision creates an exception for
housing complaints. The statute provides: “Any person
claiming to be aggrieved by an unlawful practice
relative to housing under this chapter, but who has
not filed [an administrative complaint] may commence a
civil action ... provided, however, that such action
shall not be commenced later than one year after the
alleged unlawful practice has occurred.” (emphasis
added). The Court has held that unlawful discrimination
based on a tenant's disability is an affirmative
defense in summary process for which the tenant bears
the initial burden of establishing a prima facie case.
Citywide Associates v. Pennfield, 409 Mass. 140, 143
(1991). Compare Rakuz v. Spunt, 39 Mass. App. Ct. 171
(1995).
(Although the tenant was disabled, the trial
established that the notice to quit was based on the
tenant’s conduct unrelated to his handicap.)
25
The federal Fair Housing Act, (Title VIII), has no such requirement.
-114Disability Discrimination
Statutes prohibiting discrimination against
disabled persons often present landlords with difficult
legal issues to resolve especially when the disability
results in conduct which the landlord prohibits. These
statutes often require balancing of the needs of the
landlord/other occupants with the need to provide equal
opportunity for the disabled person. If the tenant is
violating the landlord’s rules, when must the landlord
accommodate the tenant because of the tenant’s
handicap? When may the landlord evict the tenant for
violation of the terms of the lease? Understanding
these obligations is necessary not only to comply with
the law and to treat people fairly, but also to
successfully evict the tenant who is unreasonably
disturbing others.
Under the Fair Housing Act, landlords cannot
discriminate because of a handicap. 42 U.S.C. §
3604(f)(2). Discrimination includes the "refusal to
make reasonable accommodations in rules, policies,
practices, or services, when such accommodations may
be necessary to afford such person equal opportunity to
-115use and enjoy a dwelling." 42 U.S.C. § 3604(f) (3)(B).
This means that the landlord may have to adapt
otherwise rigid rules to accommodate the needs of a
handicapped person. Rakuz v. Spunt, 39 Mass. App. Ct.
171(1995) (parking space is a service or facility
related to housing).
A person is "handicapped" if s/he has (1) a
physical or mental impairment which substantially
limits one or more major life activities, (2) has a
record of having such an impairment, or (3) is
“regarded as having such an impairment." 42 U.S.C. §§
3602(h). However, "handicap" does not include
"current, illegal use of or addiction to a controlled
substance." Id.
In Peabody Properties, Inc. v. Sherman, 418 Mass.
603 (1994), the Court held that a tenant's drug
dependency together with his participation in a drug
rehabilitation program was a "handicap.” Thus, a
landlord cannot discriminate for this reason. However,
while the tenant's drug dependency is a handicap, the
statute’s protection does not extend to his "current,
illegal use of or addiction to a controlled substance."
-116It protects the tenant who is an addict participating
in a supervised rehabilitation program and who is no
longer using illegal drugs. In this case, however, the
tenant possessed a controlled substance with intent to
distribute and offered to distribute a controlled
substance to a security guard. The tenant's conduct as
to these matters was "current" and therefore not
protected by the statute.
In
Cobble Hill Apartments Co. v. McLaughlin,
1999 WL 788517 Mass. App. Div., an eviction case, the
court found that the tenant was disabled within the
meaning of state and federal law because she had a
record of a physical or mental impairment which
substantially limited “one or more of her major life
activities.” To establish this she introduced evidence
of:
(a)
her receipt of Supplemental Security Income
(SSI);
(b)
her need for live-in help with activities of
every day living;
(c)
her recent involuntary psychiatric
hospitalizations;
-117(d)
her history of post traumatic stress disorder
and depression; and
(e)
her history of asthmatic bronchitis,
hypotension, vertigo, weakness, severe
migraine headaches and difficulty sleeping.
She was a qualified handicapped person pursuant to
24 C.F.R. §§ 8.3, 24 C.F.R. §§ 100.202(c)(1) and G.L.
c. 151B, §§ 4(7A)(2) because she could meet the
landlord’s essential eligibility requirements for
occupancy, and because she could meet the requirements
of a tenancy, with a reasonable accommodation or
modification in the plaintiff's rules, policies,
practices or services. The Court denied the eviction.
HUD has promulgated regulations enforcing the
statute. See 24 CFR 100, Section 204 – the regulations
for reasonable accommodations.
Under state law, G.L. c. 151B, § 4 (7A),
discrimination includes :
(1)
The landlord’s refusal to permit, or make,
reasonable modification of the premises at the expense
of the handicapped person, if the modification is
necessary for the tenant’s full enjoyment of the
-118premises. For some properties26 the landlord (owner)
has to bear the cost of the reasonable modification. If
the tenant’s proposal will materially change the
marketability of the premises, the landlord may, as a
condition of permitting the tenant to modify the
premises, require the tenant to restore or pay for the
cost of restoring, the interior of the premises to its
previous condition;
(2)
refusal to make reasonable accommodations in
rules, policies, practices, or services, when necessary
for the handicapped person to have equal opportunity to
use and enjoy the dwelling; and
(3)
discrimination against, or a refusal to rent
to, someone because he needs reasonable modification or
accommodation.
26
These are: publicly assisted housing, multiple dwellings consisting of ten or more units, or
“contiguously located housing” consisting of ten or more units.
-119Under the state statute, reasonable modification
includes making the housing accessible to mobilityimpaired, hearing-impaired and sight-impaired persons
including installing raised numbers to be read by a
sight-impaired person, installing a door bell which
flashes a light for a hearing-impaired person, lowering
a cabinet, ramping a front entrance of five or fewer
vertical steps, widening a doorway, and installing a
grab bar. Under this statute, the landlord isn’t
required to pay for ramping a front entrance of more
than five steps or for installing a wheelchair lift.
The owner is not required to pay for the
accommodation or modification if it imposes an undue
hardship on the owner. The following factors determine
if the proposal constitutes an undue hardship:
(1)
the nature and cost of the accommodation
or modification needed;
(2)
the extent to which the accommodation or
modification would materially alter the marketability
of the housing;
(3)
the overall size of the landlord’s business
including the number and type of housing units, size of
-120budget and available assets; and
(4)
the ability of the owner to recover the cost
of the accommodation or modification through a federal
tax deduction.
The owner’s obligation to make units accessible to
tenants using wheel chairs only extends to ten percent
of his units accessible to persons using a wheelchair
pursuant to the requirements of this subsection.
Disability Discrimination In
Massachusetts Eviction Cases
The courts have interpreted the landlord’s
obligations under these laws in a number of eviction
cases. See Whittier Terrace Associates v. Hampshire, 26
Mass. App. Ct.
1020 (1989); Citywide Associates, v.
Pennfield, 409 Mass. 140 (1991); Peabody Properties,
Inc. v. Sherman, 418 Mass. 603 (1994).
In Whittier Terrace Associates, supra, the
landlord was attempting to evict the tenant from a
subsidized apartment complex. The basis for the
eviction was the tenant’s violation of the lease
provision prohibiting pets. She had a cat. The cat was
-121not reported to be a bother to anyone. The landlord was
evicting her for the simple fact that she had a cat in
violation of the landlord’s rule. The landlord
discovered the cat, not because it created a problem,
but when a maintenance person went to make a repair.
The tenant raised claims under 29 U.S. C. Section
794, the federal Rehabilitation Act commonly referred
to as “Section 504.” She had developed an emotional
attachment, and perhaps even a psychological dependence
on the cat. The court did not allow the eviction
because this was an instance “where insistence on
continuing past requirements and practices might
arbitrarily deprive genuinely qualified handicapped
persons of the opportunity to participate in a covered
program.”
A landlord’s accommodations are deemed
reasonable (and are mandatory) if they will not result
in an undue financial or operational hardship. In
effect, the law calls for "balancing the overall costs
and benefits. If the overall costs are reasonable in
light of the anticipated benefits, and the burdens
imposed are not 'undue,' then the court will conclude
-122that the tenant suffered discrimination solely by
reason of his handicap.
In Cobble Hill Apartments Co. v. McLaughlin, 1999
WL 788517 Mass. App. Div. (1999), the landlord was
evicting the tenant from a federally subsidized
apartment complex which rented to elderly and disabled
persons. The notice to terminate her tenancy stated as
grounds the complaints by neighbors about noise, her
destruction of Christmas decorations, (she was seen,
sitting under a table, tearing up the common area
Christmas decorations) and her repeated and trivial
telephone complaints and requests to the management
office which were deemed burdensome by some employees.
The landlord knew about the tenant’s increasing
mental health problems and deteriorating behavior, and
had two meetings between the tenant and
management to
review the noise complaints, and offered to supply
headphones for the television set. The landlord denied
the tenant’s accommodation request to be transferred to
the "family" building, away from the only tenant who
complained against her.
The landlord had previously granted her request
-123for a transfer to accommodate a live in aide. The basis
of the landlord’s denial this time was the waiting
list. The landlord argued that the transfer would have
been "too burdensome in light of what happened with the
tenant’s first apartment transfer" and that other
people "with extreme medical disabilities" were already
waiting for transfer. The court noted the landlord’s
efforts and stated: “The fact that a tenant does not
request a specific or suitable accommodation does not
relieve a landlord from making one, particularly when
the tenant is handicapped by a mental disability.” For
this proposition the court cited a federal case
Bultemeyer v. Fort Wayne Community Schools, 100 F.3d
1281, 1284 (7th Cir.1996). The court said: “On this
state of the evidence, it is clear that the plaintiff
failed to sustain its burden of demonstrating that it
endeavored to make individualized adjustments to
accommodate the defendant's mental disability prior to
eviction. Given the court's judgment for the plaintiff
despite the absence of any indication of attempted
reasonable accommodations by it, the trial court could
not have satisfactorily engaged in the practical
-124balancing of competing interests mandated by state and
federal law to prevent discrimination against a tenant
suffering from a mental disability.”
In City Wide Associates v. Penfield, 409 Mass. 140
(1991), the landlord was attempting to evict a seventyseven year old tenant suffering
from a serious mental
disability. She heard voices from within the walls of
her apartment. In response to these auditory
hallucinations, she hit the walls with a broom or stick
and threw objects and water at the walls. This
caused
a large number of nicks and gouges in the walls,
ceiling, and door casings at one end of the apartment.
It also caused water stains and soiling of the carpet.
The lease required the tenant not to "deface or
otherwise damage the dwelling unit. The probable cost
of materials and labor to repair the damage was $519.
Under the landlord’s contract with the agency which
provided the tenant’s subsidy, the landlord could get
reimbursement (up to two months’ rent) for tenantcaused damage. The estimated cost to repair the
apartment was less than one month's rent.
The trial
judge noted that "[t]here was no substantial evidence
-125that the tenant has violated paragraph 8(f) of the
lease, in which she agreed not 'to make noises or acts
which disturb the quiet, security or the welfare of the
tenants.’” The tenant defended the eviction case
based
on Section 504 of the Federal Rehabilitation Act, 29
U.S.C. Section 794, prohibiting discrimination on the
basis of handicap.
The Court focused on what it called the critical
question - whether the tenant was an "otherwise
qualified individual" within the meaning of that
statute. Section 504 provides: "No otherwise qualified
individual with handicaps ... shall, solely by reason
of her or his handicap, be excluded from the
participation in, be denied the benefits of, or be
subjected to discrimination under any program or
activity receiving Federal financial assistance..."
If the landlord can meet the statute’s goals
without undue financial or administrative burdens,
refusal to modify an existing program might become
unreasonable and discriminatory. The Court affirmed “a
balance between the statutory rights of the handicapped
to be integrated into society and the legitimate
-126interests of a landlord in preserving the integrity of
its programs: while a landlord need not be required to
make 'fundamental' or 'substantial' modifications to
accommodate the handicapped, it may be required to make
'reasonable' ones."
Because the tenant pleaded unlawful
discrimination as an affirmative defense she had the
burden to prove her claim. As with any other
discrimination claim, the burden is on the tenant to
prove a prima facie case of discrimination. The burden
of production (but not the ultimate burden of
persuasion) then shifts to the landlord to prove that
the challenged act was not discriminatory. The tenant
met her burdens of production and persuasion by
proposing a modification of her obligations under the
tenancy agreement. The proposal was that the landlord
would "forbear from further eviction steps (presumably,
as long as the tenant's conduct does not change
substantially) to give her an opportunity to pursue a
program of outreach and counseling." The Court affirmed
the trial court’s judgment of possession for the
tenant.
-127In these cases the tenant’s conduct arguably
violated the lease. However, state and federal law
required the landlord to “bend” in order to permit the
tenant to remain as a tenant. A landlord should always
consider this as a possibility when deciding whether to
evict the tenant.
STRATEGIES
TO
CONSIDER
-119STRATEGIES FOR CONSIDERATION
I
Establish Your Business
To Comply
With the Law
G.L. c. 239, Section 8A, achieves its goals. The
proper counterclaim is a defense to eviction. The
permissible counterclaims arise out of alleged
violations of law.
If a tenant successfully
counterclaims, the statute prevents a landlord from
evicting a tenant simply because the landlord has not
complied with the other landlord-tenant statutes and
regulations. The simple lesson is: If the landlord
establishes and manages her business with systems and
practices assuring compliance with law, the tenant has
no legitimate counterclaim to raise under 8A. In other
words, setting up the business with knowledge of, and
in compliance with, applicable law, enhances the
landlord’s ability to evict the difficult tenant.
No landlord should start in this business,
or stay in it, unless s/he is willing to
understand and comply with a landlord’s current
legal duties. To ignore this body of law is to
-120-
invite problems.
-121II
Always use a written agreement
(a)
Use a written agreement even for tenancies
at will. Written terms are the best indicator of the
parties’ expectations. The written word is better than
failed memory or different interpretations of oral
arrangements. Review your written agreement to assure
compliance with legal obligations. Don’t simply use a
form you get from a friend or even your lawyer. Tailor
the agreement to your building and your needs.
(b)
Consider using a lease but make sure it has
an effective an effective termination clause.
Many landlords prefer tenancies at will because
they can evict the tenant “without having a reason.”
The problem is that the 30 day notice sometimes
requires more than 30 days!
27
A major benefit of a
lease is the ability to terminate it by 7 days’ notice.
While terminating a lease requires the ability to
prove a breach of the lease, having a “fault” reason to
27
If rent is due on the first of the month, and the landlord decides to evict on the second day of the
month, the requirements of service give the tenant almost two months at which point the landlord
can begin summary process which can take 4 -6 weeks just to get to trial.
-122evict may eviscerate potential Section 8A
counterclaims. Section 8A does not apply to “fault”
evictions.28 But presumably, if your lease is well
drafted to meet your needs, a tenant honoring its terms
will not be a problem.
A
potential drawback is the
legal principal that the law disfavors the forfeiture
of a lease. See Gordon v. Richardson, 185 Mass. 492; In
Re Newbury Street, Inc. 856 F.2d 424 (1st Cir.,1988)
(interpreting Massachusetts law). This means that the
court may relieve a tenant of his breach but this is
only where the landlord will not be hurt and can “be
made whole” by compensation. Paeff v. Hawkins-
Washington Realty Co., Inc., 302 Mass. 144 (1946). This
28
“In any action under this chapter to recover possession of any premises rented or leased
for dwelling purposes, brought pursuant to a notice to quit for nonpayment of rent, or
where the tenancy has been terminated without fault of the tenant or occupant, the
tenant or occupant shall be entitled to raise, by defense or counterclaim ...” G.L. c. 239, §
8A.
-123is a principle of equity. If the equities favor
termination, the landlord will gain possession.
(c)
Carefully draft termination provisions and
include all violations of the rules of conduct as
grounds to terminate the tenancy.
This helps assure
reasonable control over what happens in your building.
Make the prohibitions clause, the rules of conduct,
general enough to encompass the kinds of conduct which
are inconsistent with your reasonable expectations. For
example, “Neither the tenant nor any
or invitee shall
occupant, guest
engage in, or allow others to engage
in: (1) any unlawful, violent, disruptive, offensive or
disturbing acts on, at, or affecting either the
building, the other occupants of the landlord’s
building(s), the public, or the neighbors living in
adjacent buildings whether owned by the landlord or
not; or (2) any unlawful use of the apartment, common
areas, or grounds. These prohibited acts include but
are not limited to the sale, use, distribution,
manufacture, storage or possession of illegal firearms,
illegal drugs or other controlled substances or the use
-124-
of alcoholic beverages in any way which violates the
laws of the Commonwealth or the United States; (3) any
conduct, whether or not criminal, which disturbs or
tend to disturb the rights, comfort or occupancy of
other residents of the building, neighbors in adjacent
or nearby buildings
and the public in their comfort,
safety, privacy, security, and in the peaceful
enjoyment of their property and residences; and (4) any
conduct which interferes with or tends to interfere
with (a) the landlord or his agents/ employees in the
management of the building(s) or which threatens, or
injures the property or person of any person employed
by the landlord (b) the access, or rights of any person
on or at the premises, building and grounds and
property of the landlord or any other occupant. The
conduct prohibited by this clause includes but is not
limited to conduct which causes, or may cause, or
threatens to cause harm, injury or hazardous conditions
affecting other persons or their property whether
committed by the tenant, or member of the tenant’s
household, an occupant, guest, invitee or any other
person under the tenant’s control. THE STANDARDS OF
-125-
BEHAVIOR DESCRIBED IN THIS CLAUSE ARE TO BE STRICTLY
CONSTRUED AGAINST THE TENANT, OCCUPANT OR INVITEE AND
ANY VIOLATION OF ANY ASPECT OF THESE STANDARDS SHALL
BE DEEMED TO BE SUFFICIENT GROUNDS TO TERMINATE THIS
TENANCY EVEN FOR A SINGLE OCCURRENCE OR EVENT.”
(d)
Include specific rules, prohibitions or
requirements which you need for the property. For
example, “garbage shall be placed in the covered
receptacles provided by the landlord on Tuesday
mornings in time for the 8 A.M. pickup. No garbage
shall be placed out for pickup in plastic bags.”
“The
tenant/occupant is responsible for picking up rubbish
and trash if it litters the yard as a result of
violation of the rule or otherwise improperly places
garbage out for pickup.” Specificity, so long as the
expectation is reasonable, will help you to hold the
tenant to reasonable standards of behavior.
(e)
Make absolutely sure that the provisions for
termination includes (1) any breach of these terms and
(2) the occurrence of events that you don’t want to
occur. Taking a lesson from the Rucker and Guirola
cases make sure the lease can be terminated for
-126behavior occurring
at the premises not just for the
“tenant’s” behavior.
(f)
The term of a lease can be any fixed
term. See Restatement 2d, Property, Landlord and
Tenant, Section 1.4. In one case, the Supreme Court
acknowledged there could be a lease of one day! U.S. v.
Shea, 152 U.S 178, 14 S. Ct. 519 (1894). But see,
certain longer leases will be affected by statutes,
G.L. c. 183, § 4 (effect of recording a lease); G.L. c.
186, § 1 (lease of 100 years). At the end of the term
all rights to possession revert to the landlord even
without notice. Israel v. Beale, 270 Mass. 61,68 ALR
588. But be careful about unwittingly renewing the
tenancy by accepting “rent” for a month after the
termination date. If you have an “automatic renewal” or
“automatic extension” clause, be careful to tickle your
calendar to remind you sufficiently in advance so you
don’t lose contract rights by inattention.
(g)
Make absolutely sure that a competent
attorney, who knows landlord-tenant law, reviews the
lease to make sure it does not violate: (1) G.L. c.
186, (2) c. 239, (3) 105 CMR 410.00 [the State
-127Sanitary Code provisions relating to written
agreements and code standards], or (4) c. 93A and the
Attorney General’s 93A regulations at 940 CMR 3.17 or
any other law.
For an example of a landlord whose
lease ran afoul of the 93A regulations, see Leardi v.
Brown, 395 Mass. 151 (1985). Another reason for
checking this with an attorney is to assure to the
extent that you can that the document achieves your
goals and doesn’t unwittingly defeat your goals.
III
Don’t be Afraid of Security Deposits
Many landlords shy away from security deposits out
of fear of liability. The statute is minute in its
detail and stringent in its requirements. However, with
a little effort the landlord can establish an almost
foolproof system for accepting, holding, transferring
and returning these deposits. Initial, careful
attention to the statute will eliminate anxiety about
security deposit counterclaims. If you take a security
deposit and/or rent for the last month of the tenancy,
develop a system with forms which will assure
-128compliance with G.L. c. 186, § 15B.
The statute is
strict but very manageable.
IV
Maintain Good Records
Establish a system for maintenance of written
records of the condition of the property and
communication between you and your tenant. Think of
your system and records as eventual evidence. A
frequent problem with conditions counterclaims is the
“he said, she said” evidence battle. The judge often
has to decide between the tenant’s allegation of
repeated but vain requests for repairs and the
landlord’s assertions that she never knew about the
condition. Remember, under Section 8A, claims about
conditions depend on proof of the owner’s knowledge of
those conditions. Can the landlord set up a system to
minimize the one on one battle of credibility?
An ideal system will develop evidence to show:
(1) the landlord’s consistent concern about the
conditions of the dwelling [this helps the landlord on
the credibility issue]; (2) what, if any, conditions
-129the tenant complained about; (3) what the landlord knew
and when the landlord knew it; (4) that the landlord
corrected the problem and when; and (5) that the tenant
was satisfied with the repair.
Consider sending a periodic request [every 3,6
or 12 months?] inviting the tenant to report concerns
with conditions affecting the dwelling – interior and
exterior. Develop a form for this purpose. Send it
periodically. Keep a copy for your records noting the
date you sent it. The form should provide for the
tenant’s written acknowledgment that “repairs have been
made to my satisfaction on [a particular date.]” The
landlord can send this form inviting the tenants to
return it. A cover letter should explain the landlord’s
purpose to keep the dwelling up to code. I recommend
enclosing a stamped, self-addressed envelope for the
tenant’s return to the landlord.
Maintain these
records in the tenant’s file.
If the tenant returns the form with concerns about
any conditions, investigate immediately, assess the
situation and repair the problem as soon as possible.
Have the tenants acknowledge the repairs to their
-130satisfaction. In this situation, the landlord has
developed a written record of problems – limited by the
tenant’s list – and of the repairs to the tenant’s
satisfaction.
If the tenant does not return the form, or returns
it listing no concerns, the landlord has a record of
the tenant’s admission that there were no problems with
their dwelling. This is usable evidence to use against
a counterclaim for breach of warranty.
A landlord should start this system at the
beginning of a tenancy while the relationship with the
tenant is good and before the tenant is not apt to
“look for things to get the landlord.” With records
such as these, a landlord will be more secure from
counterclaims alleging that she refused to repair some
condition for years or months.
V
Keep The Relationship Professional
Keep professional boundaries.
While a friendly
open relationship is a key to being a successful
landlord, it is also important to remember not to be so
-131informal that you lose the protection that formality
brings. Never hire the tenant to make repairs. The
landlord is in business and should maintain a business
relationship with the tenant. As with any business the
relationship is friendly but avoid mixing up this
relationship with personal or other business interests.
Never hire a tenant to make repairs to their own
dwelling or building. If a landlord ever hires a tenant
for any other job, (which I do not recommend) keep this
employment relationship separate and in writing.
VI
Consider Challenging
Code Inspection Reports
The inspection report is prima facie evidence for
the tenant. It is evidence sufficient to prove most of
the tenant’s Section 8A defense. It is evidence that
conditions “materially endanger” the tenant’s health,
safety and well-being if the violations are listed in
105 CMR 410.750. The inspector’s * or 9 has legal
significance! The may require the court
to find for
the tenant unless the landlord rebuts the evidence.
With this kind of evidence against the landlord, she
-132has the burden of introducing evidence
to convince the
court to come to a different conclusion from that
contained in the report. Smola v. Higgins, 42 Mass.
App. Ct. 724,727-728 (1997); Elliott v. Chaouche, 2000
WL 121785 Mass. App. Div. 2000. The inspector’s report
is extremely important in eviction cases.
Sometimes the inspector’s report of a violation,
stated in general terms, might make the violation seem
worse than it actually is. Sometimes, the alleged
violation isn’t even a violation! Yet this report is
what the judge sees. The landlord needs to deal with
this problem. One way to do so is to call the inspector
as a witness. The inspector’s explanation of what she
actually saw, may help your case. Another way handle
disagreements is to appeal from the inspector’s
findings.
The State Sanitary Code expressly permits appeals
from findings of the inspector.105 CMR 410.730-734; 105
CMR 400.500(A). On appeal, the inspector’s findings can
be reversed or altered. Yet landlords almost uniformly
ignore their appellate rights under the State Sanitary
Code. In court, the landlord cannot easily disprove the
-133inspector’s findings.
If a landlord disagrees with any of the findings,
he should consider appealing them. A landlord’s
failure to appeal prevents him from challenging these
findings in a later court case. As the court said in a
recent case: “For purposes of this appeal [to the
court], it is enough to say that the plaintiff
[landlord] is bound by the unchallenged and unappealed
decision of the board of health ...” Lezberg v. Rogers,
27 Mass. App. Ct. 1158, 1159 (1989). The inspector’s
findings may be conclusively determined against the
landlord. Id. See Burofsky v. Turner, 274 Mass. 574,582
(1931); Boston v. Ditson, 4 Mass. App. Ct. 323, 337
(1976); Di Maggio v. Mystic Building Wrecking Co., 340
Mass. 686 (1960).
VII
Use Caution Accepting Rent After The Tenancy
Terminates
Be careful when accepting money from the tenant
(1) after serving a notice to quit or (2) after the
-134lease terminates by its own terms. Acceptance of rent
after the termination date may constitute a waiver of
the termination of the notice of termination. Collins
v. Canty, 60 Mass. 926 (1850); Newman v. Sussman, 239
Mass. 283 (1921); Mastrullo v. Ryan, 328 Mass. 621
(1952).
Courts have determined that payment and
acceptance of rent for a period in advance of
occupancy, standing alone,
creates prima facie proof
that a new tenancy at will has been created. Staples v.
Collins, 321 Mass. 449 (1947). See Ullian v. Les
Tuileries, Inc., 361 Mass. 863 (1972). The fact of
payment and acceptance is controlling if nothing else
appears. Jones v. Webb, 320 Mass. 702 (1947).
Other
facts may permit, or require, a finding that the
landlord did not intend to waive his right to
possession. If it is not the landlord’s intention to
create a new tenancy, she must provide evidence to
negate the inference that a new tenancy was created.
She can do so if she expressly reserves her rights.
Gordon v. Sales, 337 Mass. 35,36 (1958); Slater v.
Krinsky, 11 Mass. App. Ct. 941 (1981); McCarthy v.
Harris,17 Mass. App. Ct. 1002 (1984) review denied 391
-135Mass. 1104 (1984); Corcoran Management Co. v. Withers,
24 Mass. App. Ct. 736 (1987). The landlord’s
reservation of rights should be written. It can take
the form of a receipt for the money paid. It should be
in the 30 day notice.
The language should clearly
indicate that any money accepted for periods after
termination of tenancy is for use and occupation only
and does not waive the termination of the tenancy or
create a new tenancy.
Situations In Which The Court Found Reservation of
Landlord Rights
The Court found that the landlord reserved her
rights by a written agreement with the tenant.
Corcoran Management Company, Inc. v. Withers, 24 Mass.
App. 736 (1987).
In Corcoran, the landlord and tenant signed the
following statement after a conference discussing the
notice to quit: “[The tenant] specifically acknowledges
and agrees that [the landlord] is not waiving the
violations of the Lease as set forth in this Agreement,
or in the Notice of Terminating of Tenancy. Should [the
-136-
tenant] breach the terms of this Agreement or any of
the covenants of the Lease [the landlord] shall have
the right to rely upon these incidents as additional
grounds for eviction. [The tenant] also agrees that the
acceptance of any money either as rent or use and
occupation shall not be deemed as waiver of any conduct
or incident which may give rise to an eviction.”
The landlord can reserve her rights in the notice
to quit. See McCarthy v. Harris, 17 Mass. App. 1002,
review denied 391 Mass.1104 (1984).
In McCarthy, the Court noted: ”That notice was
unequivocal in stating that any monies paid by the
defendants to the plaintiffs was accepted for use and
occupancy of the premises and did not waive any of the
plaintiffs' rights pursuant to the notice. Similar
language was placed on each of the defendants' checks
underneath the [landlord’s] endorsement.” The landlord
can reserve her rights on the “rent” receipts and by
letters to the “tenant.”
The landlord can reserve her rights when
endorsing the check and by written communications with
the tenant. See Slater v. Krinsky, 11 Mass.App. 941
-137(1981).
In Slater, the Court found that while the tenancy
terminated on December 1, the tenant made payments
through November 1979, “by checks which were received
and cashed [and] endorsed ... prior to ... negotiation
with the endorsement: "(R)eceived for application to
use and occupancy, tax and operating clause arrearages,
and not as rent, reserving all rights under the notice
to vacate for possession and otherwise." The landlord
also wrote three letters to the tenant accounting for
the payments and expressly advising him that they were
received for use and occupation and not as rent.
The July 6, 1979, letter stated: "Incidentally, we
have indicated before and reconfirm again, that any
sums received from you will not under any circumstances
be accepted as rent and will be held and applied for
use and occupation only, reserving all rights to
possession under notice to vacate and court actions. We
do not have any excess sums in our hands at this time.
Should you at any time hereafter send us money for an
advance use and occupation period and should you then
vacate voluntarily or pursuant to a court order or
-138otherwise, we would return on a pro rata basis, if any
sums become so due" by some other notice.
Mere endorsement of the checks with the phrase
“accepted for use and occupation and not as rent” will
not be enough to reserve rights if the tenant doesn’t
actually get the notice in a timely fashion. See
Whitehouse Restaurant, Inc. v. Hoffman, 320 Mass. 183
(1946).
In Whitehouse, the Court stated: “it is common
knowledge that a check cashed at the beginning of the
month is not ordinarily returned by the bank to the
drawer until the first day of the following month or
thereafter and there is nothing in the evidence to show
that there was any departure from that custom here.
Thus the plaintiff could not have had notice of the
defendant's reservation of rights ... [until] one month
after the check was received. We are of opinion that
the [landlord] failed to notify the [tenant] seasonably
of his reservation of rights and that the acceptance of
the rent operated as a waiver of the breaches of the
covenants in the lease.”
Use a notice to quit which clearly states that
-139acceptance of rent will not constitute a new tenancy
but will be accepted for use and occupancy only.
If
the tenant gives you money for any period after the
termination date, give him a receipt stating that the
money is being accepted for use and occupation without
waiving the termination and is not intended to revise
or create a new tenancy.
Of course, you cannot include the “use and
occupation” language in
a non-payment notice when the
tenant has the right to cure.
The tenant often has the right to “cure” a
termination for non-payment of rent and prevent
termination of her tenancy. However, “[a]part from the
statutory time to cure the tenant cannot, as a matter
of right, revive the tenancy by paying the rent.”
Margosian v. Markarian, 288 Mass. 197 (1934); Hodgkins
v. Price, 137 Mass. 113 (1883). The tenant’s statutory
right to cure varies depending on whether the tenant is
under a lease or a tenant at will. G.L. c. 186, §§ 11
and 12; Margosian, supra; Hodgkins, supra.
VIII
-140In summary process cases, consider the usefulness of
Agreements for Judgment.
G.L. c. 239, § 10 provides: “In any action to
recover possession of premises occupied for dwelling
purposes brought pursuant to this chapter in which a
stay or stays of execution have been granted, by the
court or by agreement of the parties, or in any such
action where there is an agreement for judgment that
grants the tenant a right to reinstate the tenancy, no
execution shall issue prior to the expiration of the
period of such stay or stays or such reinstatement
period unless the plaintiff shall first bring a motion
for the issuance of the execution and the court after a
hearing shall determine that the tenant or occupant is
in substantial violation of a material term or
condition of the stay or a material term of the
agreement for judgment.”
The Court has upheld these agreements and found
their terms controlling for issuance of the execution.
Even when the substantive law might not allow an
eviction, the agreement for judgment may.
example, the “good cause” requirements
For
of Spence v.
-141-
Garmley, supra, do not apply to violations of
Agreements for Judgment affecting subsidized housing.
BHA v. Cassio, 428 Mass. 112 (1998) citing Kelton Corp.
v. County of Worcester, 426 Mass. 335, 359 (1997). An
Agreement for Judgment cannot be amended by the court
without the consent of the parties. Cassio, supra. If
the tenant breaches its terms, the judge cannot deny
the landlord’s motion for execution just because the
tenant attempts to remedy the situation after the
Agreement is violated. Id.
If the landlord is concerned about his ability to
prove the allegations of the notice to quit, an
agreement for judgment might be the best course.
Tenants are usually willing to agree to refrain from
offensive conduct. If they breach the agreement, the
landlord can file the motion for execution without
concern for Section 8A counterclaims.
IX
Conduct in Court
The landlord should follow some basic rules for
conducting himself in court. Follow these basic rules
at all times.
-1421.
Stand up when addressing the court. This is
an elementary standard for showing respect for the
judge and the court.
2.
Be civil and respectful at all times. Never
ridicule or express anger at the tenant or a witnesses.
Let them speak. You will have your turn to respond. If
you are smirking, laughing or getting hostile, it will
not only provoke a justified rebuke from the court, but
your credibility will diminish as well. The more
professional you are, the more you will help your case.
3.
Don’t interrupt either the tenant, witness
and, of course, the judge. Your rude behavior cannot
help your case.
This article is only a summary about one aspect of the
law. The summary presents information about the law
through the date of its publication. Legislatures
amend statutes. Courts interpret the law and statutes
and by doing so affect legal rights and duties. This
article is not intended as, and cannot be substituted
for, legal advice which always must be tailored to
each unique circumstance. Therefore, you should always
consult a lawyer before simple relying on opinions or
-143-
statements in this summary.