Home CHERYL T. DUFF vs. AARON POULIOT and another [Note 1]

2018 Mass. App. Div. 42

July 21, 2017 - March 15, 2018

Appellate Division Southern District

Court Below: District Court, Barnstable Division

Present: Welch, Finnerty & Kirkman, JJ.

Appealed from a decision in Barnstable District Court by Hand, J. [Note 2]

Christopher J. Kirrane for the plaintiff.

Meghan Pouliot, pro se.

WELCH, J. From a jury-waived summary process trial, both parties appeal. The plaintiff, Cheryl T. Duff ("Landlord"), is the owner of a property located at 47 Old Fields Road in Sandwich. The defendants, Aaron and Meghan Pouliot ("Tenants"), have been tenants since 2011 and, at the time of the hearing, were tenants at will. On June 8, 2016, Landlord filed a summary process summons and complaint upon Tenants seeking possession of the property and $2,900.00 in back rent. Answering the complaint, the Tenants brought counterclaims for retaliation, breach of implied warranty of habitability, security deposit violations, interference with utilities and use of home, violation of G.L. c. 93A, and rights under the "repair and deduct" statute, G.L. c. 111, § 127L. The court found for Landlord on the claims of retaliation, implied warranty of habitability, and G.L. c. 93A and granted possession to Landlord. The Court found for Tenants on the claims of violation of the security deposit law and breach of quiet enjoyment. As will be set forth more fully herein, we reverse, in part, the judgment of the court. The following is a summary of the history of the case with certain facts reserved for discussion in each claim of error.

Until 2016, the tenancy years were unremarkable with few complaints from either side. As a result of some personal losses, including the death of her significant other to a virulent cancer, Landlord decided to move back to her home, the leased property (she had been living in Maine). As Landlord was concerned for Tenants' children, she elongated the time for Tenants to leave to allow the school year to end. Tenants were first informed on April 16, 2016 of a date to leave the premises of June 30, 2016. April turned to May, and Landlord did not receive any rent. As a result, Landlord went to the property to speak to Tenants and was told they would not be paying the rent. Landlord sought legal advice and was informed a fourteen-day notice to quit was required, which notice was sent to Tenants on May 18, 2016. During the period

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of May through August, the month of the trial, Tenants did not pay the rent, alleging the nonpayment was an act of withholding rent due to the condition of the premises.

1. The first claim of error by Tenants is with the judge not allowing Tenants the option to maintain possession of the premises as a result of the court having found a breach of quiet enjoyment. As Landlord also appeals the findings of the court on the issue of a breach of quiet enjoyment, we will address both claims of error with the first being that of Landlord claiming the judge's rulings were clearly erroneous. On appeal, we are bound by a judge's findings of fact that are supported by the evidence, including all inferences that may reasonably be drawn from the evidence. Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 445 Mass. 411, 420 (2005). See also Commonwealth v. Hawkesworth, 405 Mass. 664, 670 (1989) ("[T]he standard for appellate review of facts in both civil and criminal cases is identical . . . ."). The judge's findings will be set aside only if clearly erroneous. Mass. R. Civ. P. 52(c). See New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671, 675 (1977). "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Commonwealth v. Wolcott, 77 Mass. App. Ct. 457, 471 n.12 (2010), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). The clearly erroneous standard "does not protect findings of fact or conclusions based on incorrect legal standards." Kendall v. Selvaggio, 413 Mass. 619, 621 (1992).

The finding of a breach of quiet enjoyment rested upon Landlord's failure to comply with paragraph 33 of the lease agreement to provide Tenants with access to the Lakeview Farms Association. [Note 3] Review of the transcript requires one to unravel the Gordian knot of objections and improper foundational witnesses to determine what evidence was admitted, stricken, marked for identification, or simply abandoned by the parties. [Note 4] To support the imposition of liability under the quiet enjoyment statute, there must be a showing of at least negligent conduct by a landlord. Al-Ziab v. Mourgis, 424 Mass. 847, 850 (1997). The testimony from defendants' witness on this issue, Meghan Pouliot, was that she was denied a pass, and nothing more. There was no evidence that Landlord was made aware of the situation (such as Tenants calling Landlord); according to Landlord, the payments were up to date. As

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strict liability is not a recognized theory for a breach of quiet enjoyment, there was insufficient evidence for a finding that Landlord committed the breach. As such, the finding regarding Landlord having breached the quiet enjoyment of Tenants must be reversed. Given that result, we need not address Tenants' claim that the court erred in failing to grant them possession after a finding in their favor for breach of quiet enjoyment. See Lawrence v. Osuagwu, 57 Mass. App. Ct. 60, 64 (2003).

2. The next area of alleged error, as advanced by Tenants, relates to a finding for Landlord on the issue of breach of the implied warranty of habitability. A breach of warranty of habitability is defined as "defects in facilities vital to the use of the premises for residential purposes." Berman & Sons, Inc. v. Jefferson, 379 Mass. 196, 202 (1979), quoting Boston Hous. Auth. v. Hemingway, 363 Mass. 184, 199 (1973). Not every violation of the Sanitary Code results in a breach of warranty. Boston. Hous. Auth., supra at 200 n.16. The existence of a material breach is a question of fact to be determined by the circumstances of each case. Id. at 200. "Factors (not necessarily all inclusive) aiding the court's determination of the materiality of an alleged breach of the implied warranty of habitability include: (a) the seriousness of the claimed defects and their effect on the dwelling's habitability; (b) the length of time the defects persist; (c) whether the landlord or his agent received written or oral notice of the defects; (d) the possibility that the residence could be made habitable within a reasonable time; and (e) whether the defects resulted from abnormal conduct or use by the tenant." Id. at 200-201. As previously stated, findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.

It was agreed by the parties that Tenants would be responsible for the maintenance of the premises. During the course of the tenancy, there were no complaints made to the town's board of health. It was only after a notice to quit was filed that Tenants raised issues of habitability to the town of Sandwich and withheld rent. [Note 5] Among other minor violations, tree limbs needing pruning, screen doors in need of repair, and the necessity of cleaning the wood stove do not, per se, constitute a violation of the warranty of habitability, and the court was well within its discretion in so finding. Furthermore, as the court found, the replacement of the stove did not violate the Sanitary Code, 105 Code Mass. Regs. § 410.100, as there was no intentional refusal or unwillingness to provide a stove once it was learned it had stopped working.

3. The last area of ascribed error regards the security deposit. In their counterclaim, the Tenants pleaded four violations by the Landlord of the security deposit statute, G.L. c. 186, § 15B: failure to place the deposit in a separate bank account, failure to pay or deduct the Tenants' yearly interest, failure to provide the Tenants with required receipts, and failure to provide the Tenants with a statement of conditions. Although neither party requested findings and rulings under Mass. R. Civ. P. 52(c), the court issued a brief memorandum and order, finding for Tenants on the security deposit counterclaim and awarding them the return of the $1,400.00 deposit, plus interest, but without specifying which violation supported that remedy. The court

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found that the Tenants were not entitled to multiple damages and that the security deposit violation was not a violation of G.L. c. 93A.

On appeal, the Tenants, who remain in possession, argue that they were entitled to treble damages on this counterclaim because Landlord did not provide in discovery a more current statement of the security deposit than 2015, they did not receive interest on their security deposit under G.L. c. 186, § 15B(3)(b), and Landlord did not provide a statement of conditions under § 15B(2)(c). Regarding the provision of a current statement of the security deposit status, to the extent that the defendant is arguing in support of her claim that Landlord failed to place the security deposit in a separate account, in violation of G.L. c. 186, § 3(a), the court was free to credit Landlord's repeated testimony that she did so and the exhibits in support of that testimony. Further, the court was not required to award multiple damages for either of the other two pleaded violations under § 15B. See Phillips v. Equity Residential Mgt., LLC, 478 Mass. 251, 259 (2017) ("[Section] 15B(7) [of G.L. c. 186] imposes treble damages only on violations of § 15B(6)(a), (d), and (e) . . . ."). [Note 6], [Note 7]

Tenants are correct, however, that in finding in their favor on the security deposit counterclaim and awarding $1,400.00, plus interest, the court erred in entering judgment for possession for Landlord. A violation of the security deposit statute may be asserted as a defense to a summary process action for possession. See Meikle v. Nurse, 474 Mass. 207, 214 (2016). In Meikle, the Court stated, "Where a tenant prevails on a defense or counterclaim and is awarded damages in an amount less than the amount owed to the landlord, the statute [G.L. c. 239, § 8A] provides that 'no judgment shall enter until after the expiration of the time for such payment and the tenant has failed to make such payment.'" Id., quoting G.L. c. 239, § 8A.

In summation, the portions of the judgment finding a breach of quiet enjoyment against Landlord and possession to Landlord are reversed, and the matter is returned to the trial court for entry of an order providing notice to Tenants of the right to retain possession in compliance with G.L. c. 239, § 8A.


[Note 1] Meghan Pouliot.

[Note 2] The Honorable Kathryn E. Hand recused herself from this appeal, and did not participate in its hearing, review, or decision.

[Note 3] The lease read as follows:


Access to Lawrence Pond and Lakefield Farms Association Facilities."

[Note 4] The following are the facts regarding the issue of quiet enjoyment. In one unobjected-to, and hence admitted, piece of testimony, Meghan Pouliot testified, "Yeah, so Lakefield Farms has a pond and you can go. It has a playground, a pond, a clubhouse and we have never been able to get access to it because it has never been paid up." Subsequent to this admitted testimony, Tenant was asked about photographs of documents regarding payment from Landlord to the recreational facility, which drew an objection. The objection was sustained, not allowing the substance of the records to be admitted in evidence. Tenant then testified, without objection, that "I always asked for a pass and was denied a pass [to the recreational facility]." Landlord testified that all dues were paid and there was nothing preventing Tenants from accessing the facilities.

[Note 5] Due to an inadequate foundation, the letter from the board of health for the town of Sandwich was properly not admitted in evidence for the substance of any violations and was agreed to by the parties that its evidentiary value was limited to the fact of its issuance.

[Note 6] We note that both violations are made unfair and deceptive acts under 940 Code Mass. Regs. § 3.17(4), and so may result in treble damages upon a finding of violation of G.L. c. 93A. The court did not find a G.L. c. 93A violation, however, and Tenants have not appealed that finding.

[Note 7] See Neihaus v. Maxwell, 54 Mass. App. Ct. 558, 562 (2001) (landlord's obligation to return tenant's security deposit within thirty days of termination of tenancy under G.L. c. 186, § 15B(6)(e) arises when tenant relinquishes possession).