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

1 In residential tenancies, the habitability of the premises is an essential part of this contract.

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

-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 landlord-

tenant 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

-13-

defense 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

-14-

sufferance 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).

-15-

Ct. 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.

-16-

Consider 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

-17-

rent 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.

-18-

Fellsway 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.

-19-

Staples, 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

-20-

on 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

-21-

with 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

-22-

created; 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,

-23-

i.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 piggy-

backed in a single development, several statutes and regulations may apply.

Compliance with the applicable statutes and regulations is absolutely

-24-

necessary 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

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.

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

-25-

family 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

-26-

show 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).

-27-

either 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

-28-

determine 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.

-29-

must 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

-30-

most, 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.

-31-

However, “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,

-32-

physically 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

-33-

show 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-

-34-

related 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

-35-

employee. 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 low-

income 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

-36-

state 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

-37-

engaged 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).

-38-

Termination 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

-39-

12. 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 the election of the owner/landlord AND

1. 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.”

-40-

IV. 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

-41-

landlord 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.

-42-

The 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,

-43-

the 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

-44-

use 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

-45-

written 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

-46-

tenants/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,

-47-

if 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

-46-

THE 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.

-47-

those 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

-49-

of 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.

even after the lease expires.

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 landlord-

-50-

tenant 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

-51-

face, invalidate it ~ e.g. the notice didn’t meet the

content 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

-52-

for 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.

-53-

The 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

-53-

GENERAL 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.

-54-

damages.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.”

-55-

2. 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.

-56-

that the conditions can’t be remedied unless the tenant

vacates.17

3. The statute simplifies the tenant’s proof in

the following ways:

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.

(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

-57-

CMR 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

-58-

order 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

-59-

applicable 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.

-60-

Section 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.

-61-

outrageous 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

-62-

possession 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

-59-

THE 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)

-60-

that 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.

-61-

The 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.

-62-

Likewise, 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

-63-

condition 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

-64-

habitable"). 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

-65-

is 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.

-68-

its 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

-69-

is 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

-68-

G.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).

-69-

is 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.

-70-

940 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

-72-

violations 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

-72-

G.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

-73-

interference 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

-74-

to 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

-75-

supply 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."

-76-

The 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

-77- premises 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

-77-

RETALIATORY 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"

-79-

proof 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

-80-

tenants. 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

-81-

requests 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 non-

responding party’s case. The court has broad

discretionary authority to order relief against the

defaulting party including issuing an order finding

-82-

that 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

-83-

be 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

-84-

requests 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.

-85-

COMMONWEALTH OF MASSACHUSETTS THE TRIAL COURT HOUSING COURT DEPARTMENT Worcester, ss. Worcester Division

C.A. No. 03-SP-XXX LOUISE LANDLORD,

Plaintiff Plaintiff's Motion To Compel

v. 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.

-86-

3. 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. Worcester Division

C.A. No. 03-SP-XXX LOUISE LANDLORD,

Plaintiff Plaintiff's

Interrogatories v. to Defendant and

Request for Production TOM TENANT, and Admission

Defendant ORIGINAL TRIAL DATE:

TO: TOM TENANT FROM: 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

from _________, 20 for two (2) weeks until

____________, 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-

(a) How long have you known____________?

(b) Does he contribute any money toward the household expenses?

(c) Does he reside in your apartment?

12. 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 did you have

any conversations with the landlord about the notice?

-92-

19. 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.

_____________________________________________________

-95-

28. 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

-96-

physician(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.

-99-

YOU MUST ADMIT OR DENY THE FOLLOWING STATEMENTS AND

THE AUTHENTICITY OF THE FOLLOWING DOCUMENTS

3. You informed the landlord on , that you would

correct incorrect

4. You have never

correct incorrect

5. On the landlord asked you to remove the dog

from your apartment.

correct incorrect

6. You work at the ____________ in .

correct incorrect

7. You and [the witness) are coworkers at the

___________.

correct incorrect

8. The plaintiff’s video camera, located at the entry of your building, shows

any person who enters in or leaves your apartment.

correct incorrect

9. The videos of the entranceway show that ______________ regularly stays

in your apartment overnight.

correct incorrect

-100-

10. ___________ receives mail at your apartment.

correct incorrect

11. Attached are true and accurate copies of notices sent to you by the landlord

dated , , (Exhibit A).

correct incorrect

12. Attached are true and accurate copies of letters sent to you by the landlord

on , and , (Exhibit B).

correct incorrect

13. Attached is a true and accurate copy of your lease agreement signed on

(Exhibit C).

correct incorrect

14. 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 incorrect

16. You signed the document dated which is attached as Exhibit D.

correct ___ incorrect

17. You have not paid any rent for the premises from to the

-101-

present.

correct incorrect

18. You read the agreement dated , attached as Exhibit E,

before you signed it.

correct incorrect

19. You haven’t paid any rent for the premises since before .

correct incorrect

20. You did not request a hearing to appeal any Board of Health inspection

report.

correct incorrect

21. 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

-103-

When 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

-104-

by 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

-105-

the 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

-106-

courtroom 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

-108- almost 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

-109-

made; 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

-110-

evidence 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,

-111-

religion, 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”

-112-

This 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.

-113-

complaint 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.

-114-

Disability 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

-115-

use 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."

-116-

It 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

-118-

premises. 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

26 These are: publicly assisted housing, multiple dwellings consisting of ten or more units, or “contiguously located housing” consisting of ten or more units.

(3) discrimination against, or a refusal to rent

to, someone because he needs reasonable modification or

accommodation.

-119-

Under the state statute, reasonable modification

includes making the housing accessible to mobility-

impaired, 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

-120-

budget 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

-121-

not 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

-122-

that 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

-123-

for 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

-124-

balancing 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 seventy-

seven 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 tenant-

caused 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

-125-

that 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

-126-

interests 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.

-127-

In 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

-119-

STRATEGIES 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.

-121-

II

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.

-122-

evict 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.

-123-

is 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 occupant, guest

or invitee shall 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

-126-

behavior 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

-127-

Sanitary 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

-128-

compliance 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

-129-

the 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

-130-

satisfaction. 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

-131-

informal 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 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

-132-

has 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

-133-

inspector’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

-134-

lease 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

-135-

Mass. 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

-138-

otherwise, 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

-139-

acceptance 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

-140-

In 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. For

example, the “good cause” requirements 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.

-142-

1. 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.