FRANK ALONGE v. CLAUDIA SAINTFORD and another [Note 1]

COVEN, P.J. In this jury-waived summary process action, judgment entered on January 26, 2018 for the landlord, Frank Alonge, for rent owed in the amount of $9,100. Prejudgment interest was not awarded. On September 19, 2018, an amended judgment entered for the tenant, Claudia Saintfort, on counterclaims. That judgment, including prejudgment interest and attorney's fees, totaled $49,682.81.

This appeal by the landlord follows. The landlord asserts that the trial judge erred in not dismissing the tenant's counterclaims and made several other errors in his findings of fact and rulings of law. For the reasons stated below, we affirm in part and reverse in part.

The trial judge made ninety-four separate findings and, based on those findings, issued rulings on the tenant's counterclaims for breach of warranty of habitability, breach of the covenant of quiet enjoyment, interfering with utilities, reprisal, and violating the consumer protection act. Except for the claim for interfering with utility service, the trial judge entered judgment on each counterclaim for the tenant.

We summarize those findings. On or about September 1, 2013, the tenant "took over the tenancy" of apartment #1 at 69 Dix Street in Waltham, MA "from the prior tenant, her father Jean Saintfort." [Note 4] The apartment was one of four units in a building known as 69-71 Dix Street. The entire building, prior to September 1, 2013, was consistently plagued with rodents, bedbugs, and cockroaches, as was unit #1.

From that date until the tenant vacated on February 26, 2016, the entire property and unit #1, itself, remained plagued with rodents, bedbugs, and cockroaches. Although a Waltham board of health inspection report, dated August 28, 2013, identified apartments other than unit #1 as having the existence of mice and bedbugs, that same report identified the existence of cockroaches in unit #1 (and in all other units), and the tenant testified that, from her takeover of the tenancy until she vacated,

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she saw cockroaches and mice in her apartment every day, in virtually every room, particularly at night. The trial judge also credited the tenant's testimony that, from her take over until she vacated the premises, she experienced, through bites, bed bugs in her apartment. The trial judge also found that, during the same period, the tenant saw rats in her apartment periodically, rodents the tenant identified as larger than mice.

The tenant complained monthly about the rodent, bed bug, and cockroach conditions to the landlord. And because of the conditions, the tenant discarded food that rodents and insects penetrated. The tenant also resorted to storing food in plastic containers. On a few occasions, the landlord would provide the tenant with cans of Raid, an over-the-counter insecticide. Typically, following Waltham board of health reports, the landlord would engage the services of an extermination service. Even with these efforts, no significant reduction in the infestation was realized.

The trial judge found that there was "no credible evidence that [the tenant] caused the infestations of rodent[s], bed bugs, or cockroaches in her apartment."

Apart from the findings regarding the infestation, the trial judge also found that, throughout the tenancy, only one of five doors of the apartment had working locks and the tenant would place furniture or bags of clothes against the back door to the apartment to prevent unwelcome persons entering at night. The landlord was aware of this condition through a Waltham board of health inspection report dated October 14, 2015.

Other findings include that, from the inception of the tenancy, the kitchen and bathroom ceilings in the apartment were water damaged, stained, occasionally leaked, and showed evidence of mold. To manage the leaks, the tenant would place large buckets underneath to catch the water. In August of 2015, the landlord repaired the kitchen ceiling. During the full term of the tenancy, hallway, bedroom, and living room ceilings were stained but not actively leaking. Waltham board of health inspection reports dated August 28, 2013, September 27, 2013, and July 29, 2015 placed the landlord on notice of the conditions existing in the bathroom. Reports dated October 14, 2015 [Note 5] and February 10, 2016 placed the landlord on notice about bedroom ceiling conditions.

The bathroom ceiling collapsed on the tenant's son on July 24, 2015. The son was transported to the hospital. On August 4, 2015, the landlord received a letter from the tenant's lawyer informing the landlord that the tenant would pursue legal action against the landlord for the collapse incident.

Following the collapse, from July 24, 2015 to August 11, 2015, the tenant and her children relocated to a hotel during repairs. The tenant returned to the apartment from August 11, 2015 to August 25, 2015 to clean up infestation, spoiled food, and trash. During this period, the landlord's sons continually harassed the tenant, banged on the door while the tenant was cleaning, and attempted to extract the full month's rent for August. The trial judge found that the behavior was abusive and frightening.

The trial judge found that the tenant was without hot water from October 7, 2015

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to October 9, 2015, but the trial judge was not persuaded that the landlord intentionally turned off the hot water.

The tenant did not pay rent from August 1, 2015 through February 29, 2016, when she vacated.

This summary process action was filed on December 7, 2015, seeking possession and rent.

Based on these findings, the trial judge concluded that the landlord breached the warranty of habitability and found a 30% reduction in the value of the property. The award on this claim was $11,100. The trial judge concluded that the landlord breached the covenant of quiet enjoyment by failing to remedy the dangerous condition in the apartment, which led to the ceiling collapse and displacement of the tenant. On this claim, the tenant was awarded three times the rent: $3,900.

Anchoring this appeal is the landlord's argument that the trial judge erred in not allowing the landlord's motion to dismiss the counterclaims of the tenant as a result of the tenant's failure to meet the statutory burden under G.L. c. 239, § 8A of establishing that the conditions complained of were not reasonably attributable to the tenant. [Note 6]

In relevant part, G.L. c. 239, § 8A provides:

"Whenever any counterclaim or claim of defense under this section is based on any allegation concerning the condition of the premises or the services or equipment provided therein, the tenant or occupant shall not be entitled to relief under this section unless: (1) the owner or his agents, servants, or employees, or the person to whom the tenant or occupant customarily paid his rent knew of such conditions before the tenant or occupant was in arrears in his rent; (2) the plaintiff does not show that such conditions were caused by the tenant or occupant or any other person acting under his control; except that the defendant shall have the burden of proving that any violation appearing solely within that portion of the premises under his control and not by its nature reasonably attributable to any action or failure to act of the plaintiff was not so caused "

We agree that a statutory burden is placed upon a tenant who has filed a counterclaim based on conditions existing within that tenant's unit. As stated in § 8A, "[T]he defendant shall have the burden of proving that any violation appearing solely

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within that portion of the premises under his control and not by its nature reasonably attributable to any action or failure to act of the plaintiff was not so caused . . . ." We disagree, however, that that burden was not met.

To support the claim of error, the landlord places great weight upon statements made by the trial judge, which include the statement that the judge "ha[d] no idea who caused the problems," and that, to find that the burden was met, the trial judge would "go with" the doctrine of res ispa loquitur.

But these "[s]tatements and observations made from the bench prior to the formal issuance of factual findings do not represent binding determinations of the court. The fact finding process itself necessarily entails shifting and evolving judicial impressions and assessments. A trial judge remains free to adopt, revise or abandon the same until entry of judgment despite any verbal expression of interim opinions or mid-trial colloquy with counsel or witnesses. Written, subsidiary findings of fact are the final product of a trial judge's analysis of the evidence presented and constitutes the official articulation of the salient points underlying the court's judgment." Stamos v. Jacobsen, 1987 Mass. App. Div. 185, 185-186 and cases cited.

As to the trial judge's actual finding that there was "no credible evidence that [the tenant] caused the infestations of rodent[s], bed bugs, or cockroaches in her apartment," we do not find error in the ultimate ruling. The trial judge fully articulated the legal standards applied to the warranty of habitability claim, none of which are claimed as error. [Note 7] The statement of the trial judge is consistent with the findings and the statute. The judge found that prior to September 1, 2013, the date that the tenant began her tenancy, the apartment "was consistently plagued with rodents, bedbugs, and cockroaches." [Note 8] It was also found that through inspection reports the landlord was aware, as of August 28, 2013, that the bathroom ceiling of the tenant's apartment needed repair. The finding reflects that the landlord did not present any credible evidence to rebut what was, in fact, found credible: the conditions existed

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at the time of (and at least within days before) the beginning of the tenancy. There was no error. Credibility is an issue for the trial judge.

Although the trial judge did make findings regarding conditions alleged to have existed in other units, we reject the landlord's suggestion that those findings impaired the judge's ability to confine the legal issues to the tenant's claim regarding her tenancy, the common areas, and occupancy of unit #1. Moreover, the scope of the infestation prior to the tenant's occupancy and the temporal connection of the landlord's notice of the infestation throughout 69-71 Dix Street were relevant to the landlord's actual knowledge of the conditions existing in unit #1 itself at the time of occupancy. See Gath v. M/A-Com, Inc., 440 Mass. 482, 489-490 (2003) ("To be relevant, evidence must have some tendency to prove or disprove a particular fact, and that particular fact must be material to an issue in the case.").

As to the claimed error in the trial judge's ruling that the landlord breached the covenant of quiet enjoyment, each side focuses upon the ceiling collapse as the basis of the award. [Note 9] Section 14 of G.L. c. 186 provides that any landlord who "directly or indirectly interferes with the quiet enjoyment of any residential premises" shall be liable for "actual and consequential damages or three months' rent, whichever is greater." The covenant of quiet enjoyment pertains to "acts or omissions that impair the character and value of the leased premises." Doe v. New Bedford Hous. Auth., 417 Mass. 273, 285 (1994). Negligent conduct, as opposed to wilful or reckless behavior, is all that is required for a violation of the quiet enjoyment statute. See Cruz Mgt. Co. v. Thomas, 417 Mass. 782, 789 (1994).

The trial judge found that from September 1, 2013 (the inception of the tenancy) until August 11, 2015, the bathroom ceiling (and kitchen ceiling) occasionally leaked. An inspection report dated August 28, 2013 notified the landlord of the need to repair the bathroom ceiling, and a report dated September 27, 2013 informed the landlord that the bathroom defect identified in the August 28, 2013 report had not been corrected. [Note 10] To manage the leaks, the trial judge found that the tenant would place large buckets underneath to catch the water. There was no error.

We are constrained, however, to reverse the award of damages on the claim of retaliation. The trial judge found for the tenant on this claim, reasoning from the only factual finding made that the landlord's service of a notice to quit thirty-eight days after the tenant notified the landlord of an intent to pursue legal action for the ceiling

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collapse warranted such conclusion. [Note 11] The so-called reprisal statute, see G.L. c. 186, § 18, provides in relevant part as follows:

"Any person or agent thereof who threatens to or takes reprisals against any tenant of residential premises for the tenant's act of, commencing, proceeding with, or obtaining relief in any judicial or administrative action the purpose of which action is 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 to the board of health . . . a suspected violation of any health or building code or of any other municipal by-law or ordinance, or state or federal law or regulation which has as its objective the regulation of residential premises; . . . shall be liable for damages which shall not be less than one month's rent or more than three month's rent, or the actual damages sustained by the tenant, whichever is greater, and the costs of the suit, including a reasonable attorney's fee.

"The receipt of any notice of termination of tenancy, except for nonpayment of rent, [Note 12] . . . within six months after the tenant has commenced, proceeded with, or obtained relief in such action, exercised such rights, made such report or complaint, . . . shall create a rebuttable presumption that such notice or other action is a reprisal against the tenant for engaging in such activities. Such presumption shall be rebutted only by clear and convincing evidence that such person's action was not a reprisal against the tenant and that such person had sufficient independent justification for taking such action, and would have in fact taken such action, in the same manner and at the same time the action was taken, regardless of tenants engaging in, or the belief that tenants had engaged in, activities protected under this section."

Clearly, the receipt of the notice to terminate the tenancy occurred within the six-month period that would establish a presumption of retaliation. Yet in order to obtain the presumptive advantage of this statutory provision, the tenant would have had to "commence[], proceed[] with, or obtain[] relief in any judicial or administrative action the purpose of which action [wa]s 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." G.L. c. 186, § 18. Constrained by the trial judge's actual findings, the tenant noticed the landlord of an intent to pursue a tort claim for damages resulting from injuries her son suffered as a result of the

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ceiling collapse. The statute is inapplicable.

We vacate the award on the reprisal claim. Judgment shall enter for the landlord on that claim. As a result, we are also constrained to vacate the award of attorney's fees and return the matter back to the trial court for a reassessment of attorney's fees. [Note 13]

So ordered.