TRACY TEIXEIRA, Plaintiff/Defendant-in-Counterclaim v. WALTER J. BONALEWICZ, JR. and STEPHANIE B. TEIXEIRA, Defendants/Plaintiffs-in-Counterclaim

This matter was before the court for a jury-waived trial held over two (2) days on June 28, 2019 and September 6, 2019. The case began as a summary process (eviction) action brought by plaintiff/defendant-in-counterclaim Tracey Teixeira ("Plaintiff" or "Landlord") to recover possession of the premises located at 4 Carter Street, 1st Floor, in Fall River, Massachusetts (the "Premises") for non-payment of rent. [Note 1] Defendants/plaintiffs-in-counterclaim Walter J. Bonalewicz, Jr. and Stephanie B. Teixeira ("Defendants" or "Tenants") filed a written answer containing affirmative defenses and counterclaims for breach of the warranties of habitability and quiet enjoyment, retaliation, violation of G.L. c. 239, §8A, violation of G.L. c. 93A, §9 and conversion of personal property. The parties later entered into a stipulation concerning the relinquishment of possession and a waiver of certain claims, which stipulation disposed of any claim concerning Tenants' security deposit, resolved Landlord's claim for unpaid rent and rendered Landlord's claim for possession moot. The Tenants' remaining counterclaims were then transferred to the civil docket. Following such transfer, Landlord filed counterclaims for property damage and conversion. Tenants' surviving counterclaims in the summary process action and Landlord's counterclaims in the civil action form the basis of the instant civil action.

Prior to the commencement of the trial, Tenants filed a Motion to Reconsider the Court's denial of their prior motion to add Leo Teixeira as a necessary party. The Court deferred ruling on such motion until after the completion of the trial. After reconsideration, such motion is DENIED for the same reasons set forth in the Court's Order dated August 31, 2018. The evidence showed that Leo Teixeira is not an owner of the subject Premises, nor was he an owner at the time of the subject tenancy. In addition, the Tenants' rights in recovery are not adversely impacted by the absence of Leo Teixeira from any judgment because, for the reasons stated herein, the Court does not find in favor of Tenants on any of their claims.

At the close of evidence following the first day of trial, Landlord filed a Motion for Involuntary Dismissal. Such motion was ALLOWED as to the dismissal of Tenants' counterclaim for conversion of jewelry as there was no evidence presented to support such counterclaim. The motion was DENIED as to Tenants' counterclaims for conversion of Tenants' motor vehicles and for Landlord's violations of G.L. c. 93A.

Following the close of evidence, the parties were granted until September 20, 2019 to submit proposed findings of fact and rulings of law. That deadline was later extended to and including October 4, 2019. The Court considered the parties' submissions in drafting its findings and rulings herein.

Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds, rules and orders as follows:

Findings of Fact

This is a sad tale of a fractured family. Landlord is the owner of the Premises, which consists of a two-family home located at 4 Carter Street in Fall River, Massachusetts. Landlord is married to Leo Teixeira ("Leo"). Leo is tenant Stephanie Teixeira's ("Stephanie") father and Landlord is Stephanie's stepmother. Tyler Teixeira ("Tyler") is Stephanie's half-brother. Tenant Walter J. Bonalewicz, Jr. ("Walter") is Stephanie's long-term boyfriend.

In approximately February 2016, Stephanie approached Landlord about moving to the Premises. At that time, Stephanie was very ill and experiencing problems with a neighbor. Stephanie and Walter were then residing in a four-family property owned by Walter located at 541-543 Lawton Street in Fall River. Around the same time, Landlord had plans to sell the Premises and purchase a new home at 1135 Highland Avenue in Fall River, but the closing was delayed. In March 2016, Stephanie underwent brain surgery. The parties agreed that the Premises, which has a nice yard and a pool, would be a preferable place for Stephanie to reside while she recovered. Wanting to help her step-daughter, Landlord took the Premises off the market and allowed Tenants to move in. The parties executed a written lease commencing on April 1, 2016 (Tenant's Exhibit 1) to satisfy Landlord's mortgage company in connection with the closing on Landlord's new Highland Avenue home, but the uncontroverted testimony was that the parties never intended to enforce the lease. After all, they were family.

The Court finds Tenants, along with Walter's son Cody, moved into the first floor of the Premises piecemeal during June 2016. At that time, Landlord and Tenants were on good terms. According to Landlord, the Premises was "perfect," "spotless" and "immaculate" when Tenants took occupancy. Tenants did not dispute Landlord's testimony concerning the condition of the Premises when they moved in.

On August 18, 2016, Liberty Utilities ("Liberty") inspected the Premises and found a "non-hazardous" gas meter leak of 1% following the installation of new gas meters. Liberty also noted an issue with the size and location of the vent pipe serving the two (2) hot water heaters. (Joint Exhibit 13). The Court finds Liberty immediately repaired the leak at the meter and issued a written warning requiring that a licensed contractor repair the vent pipe.

Walter testified that Leo ripped up the written warning issued by Liberty concerning the vent pipe saying Liberty was "crazy" and that Leo refused to fix the vent pipe until after Tenants moved out. Walter also testified that Liberty turned off the gas to the Premises as a result of the vent pipe issue. Despite claiming the gas had been shut off pending the repair of the vent pipe, Walter also testified that Leo somehow turned the hot water heaters back on that same day. The Court does not credit Walter's inconsistent testimony and notes that the warning tag issued by Liberty on August 18, 2016 states the gas was left on. The Court credits Leo's testimony that he had the vent pipe promptly repaired by a plumber.

Walter admitted that he made no complaints about the Premises between June and November 2016, but also inconsistently testified that he complained to Leo about rats on the porch, mold in the bathroom and a lack of heat in the basement room. There were no inspection reports to corroborate Tenants' conditions claims, and photographs admitted into evidence supported Landlord's and Leo's testimony that the Premises was in excellent condition while they lived there. (Landlord's Exhibits 1-5). The Court does not credit Walter's testimony on these conditions, except that it was agreed the basement room is unheated.

Sometime during October 2016, Walter admittedly parked an unregistered truck on the lawn and a camper in the driveway, which camper blocked the basement bulkhead and the second floor tenant's fire escape. Leo and Landlord had each previously observed the truck parked on the street and testified that Walter and Stephanie both denied knowing who the truck belonged to. Leo, a self-employed greenhouse grower who had recently re-sodded the lawn at the Premises, previously told Walter he could store his vehicles on other land belonging to Leo. The Court finds Walter never sought, nor was he granted permission to park his vehicles on the Premises.

The Court finds at some point Stephanie and Walter requested permission to bring a 12-person hot tub and fire pit to the Premises. In October 2016, Landlord discovered Walter had excavated a portion of the back yard for the hot tub without permission. At this time, Landlord first observed the truck parked on the grass. When Tenants were told they could not bring the hot tub or fire pit to the Premises, Stephanie stated an intention to move out because she and Walter were unhappy with the restrictions placed on their use of the Premises.

The Court finds on November 10, 2016, there was an altercation at the Premises between Landlord, Tyler, Walter and Stephanie. That afternoon, Landlord received a call from her upstairs tenants advising that there was a problem with the pool cover. Admittedly upset because Landlord considered it Tenants' obligation to maintain the pool, Landlord and Tyler went to the Premises to re-cover the pool. When they arrived, they were confronted by a rude, disrespectful and confrontational Stephanie and Walter, who were watching them from the deck. During the encounter, Landlord saw the camper and unregistered truck still parked on the grass in the back yard and told Walter to remove them. Walter admitted he was told to get the vehicles off the property. There was considerable yelling, Walter used some extremely foul language and ordered Landlord to leave the property. Walter also physically and verbally threatened Tyler, who then called the police. (Joint Exhibit 1). The Court credits Tyler's description of the incident that took place on November 10, 2016.

The Court finds that on November 12, 2016, Landlord had Tenants served with a 30-day notice to quit. (Joint Exhibit 2). Both Walter and Stephanie demanded money to move. The Court finds that at some point Walter demanded $5,000.00 from Leo to move and threatened to throw a rock through his window. Later, a rock was thrown through a window at Highland Avenue.

The Court finds that Tenants voluntarily began moving out. While moving boxes in the basement on November 15, 2016, Walter testified that he smelled gas. He again contacted Liberty, who found the "flue to water heaters too close to combustible. Also opening in chimney needs to be blocked." (Tenant's Exhibit 3). Liberty issued a written warning and turned off the gas at 2:00 P.M.

The Court finds that the next morning, on November 16, 2016, M & M Movers moved Tenants from the Premises back to Walter's property on Lawton Street in Fall River. The bill of lading shows the move began at 9:00 A.M. and was completed at 5:00 PM with ½ hour of travel time. (Joint Exhibit 3). The Court does not credit Walter's testimony that Tenants moved out because there was no heat. Walter testified that he was already in the process of moving out on November 15, 2016, before the gas was turned off, and it is unlikely an all-day move for the following day could have been arranged on less than 24 hours' notice. The Court finds shortly after the move, Landlord received a telephone call from Stephanie's mother, Dawn Silva, confirming that Stephanie had moved out.

The Court finds that on November 17, 2016, Walter and his son went back to the Premises to continue moving boxes. Landlord called the police after receiving a complaint from her upstairs tenant about a disturbance involving Tenants at the Premises. The police report notes that Tenants were parking their vehicles on the grass. Both Walter and Stephanie admitted that they were again requested by Landlord and the police to remove the vehicles from the Premises on November 17, 2016, and that they failed to do so. The Court finds that on November 18, 2016, Stephanie filed a Harassment Prevention Order against Landlord in the Fall River District Court, on which Stephanie stated her residential address was 541 Lawton Street, Fall River. (Joint Exhibit 5). The Court finds that following a hearing, the Harassment Prevention Order was dismissed.

The Court finds Landlord contacted the Fall River police department on November 22, 2016 and asked an officer the procedure to tow vehicles. Landlord informed the police officer that Tenants had been asked to remove the vehicles by text, face-to-face and through the police. The officer gave Landlord the blank tow forms and told her to take them to a towing company. The Court finds Landlord brought the forms to Vic's Towing Service in Fall River ("Vic's"). The person at Vic's asked her to sign the form and then completed the forms on Landlord's behalf. (Joint Exhibit 6). The Court finds the reason for the tow as stated on the tow forms was "abandoned." The Court credits Landlord's testimony that a representative from Vic's completed the tow form, including checking the box representing the vehicles as abandoned. The Court finds the vehicles were not abandoned.

The Court finds that the camper and truck were towed from the Premises on November 22, 2016 by Vic's. Landlord observed the tow from her car. The following day, Walter was informed by Fall River police that his vehicles were towed from the Premises. (Joint Exhibit 6). The Court finds that on November 23, 2016, Walter visited Vic's to inquire about recovering his vehicles. Walter admitted at trial that Vic's would have released the vehicles to him that day for approximately $254.00.

Walter testified that although he only paid $2,500.00 for it, the 1998 Dodge truck was worth $5,500.00, the plow in the bed was worth $1,300.00 and the camper was worth $7,000.00, excluding the equipment inside. No documentary evidence was offered to support Walter's testimony as to the value of the towed vehicles. He testified inconsistently that he had/had no place to store them and that he could not afford the towing and storage fees despite acknowledging that he owned the home on Lawton Street, a Harley Davidson motorcycle, a Cadillac Escalade, valuable jewelry and other luxury items. Walter also claimed he was collecting disability and had not worked in eight (8) years. The Court does not credit Walter's testimony concerning the value of the towed vehicles, his inability to pay the towing charges and/or store the vehicles.

On November 23, 2016, the Court finds Walter reported to police that his "landlady went into his apt - - took jewelry." (Joint Exhibit 8). On November 24, 2016, the police met with Walter at the Premises. The police report states that on November 23, 2016 Landlord stole prescription medication and jewelry worth more than $16,500.00 from the Premises. (Tenant's Exhibit 4). Walter also reported two (2) vehicles missing. (Joint Exhibit 9). The Court finds no charges were brought against Landlord as a result of Walter's complaint. Walter admitted no one observed Landlord entering the Premises. The Court finds there was no credible evidence whatsoever supporting Tenants' claims that Landlord converted their medication and jewelry. The Court does not credit Walter's testimony that despite having moved from the Premises on November 16, 2016, he kept valuable jewelry and Stephanie kept important medication at the Premises. In fact, the Court finds the totality of Walter's and Stephanie's testimony to lack credibility. [Note 2]

The Court finds that the events that took place between December 5, 2016 and February 1, 2017 evidence a vindictive campaign by Tenants to harm Landlord and Leo. Despite having paid professional movers to remove their personal belongings from the Premises on November 16, 2016, and Stephanie's admission that she vacated the Premises on November 16, 2016, Walter claimed he was "sometimes" still sleeping there to "watch over his things," even though he asserted the Premises had no heat. The Court does not credit Walter's testimony and finds Tenants voluntarily ceased residing in the Premises on November 16, 2016. The Court finds Walter retained the keys to withhold possession of the Premises from Landlord, and he returned to the Premises after November 16, 2016 primarily to damage the Premises, make complaints and meet housing inspectors.

The Court finds that after November 16, 2016, Walter complained multiple times to the gas company, the City of Fall River housing inspector and the Board of Health about conditions in the Premises. Inspection reports from the gas company dated December 15, 2016, January 5, 2017 and January 6, 2017 showed no gas leaks. (Joint Exhibit 13). The December 5, 2016 inspection report from the housing inspector found no heat on December 5, 2016 but that "[f]acilities maintained in good operating condition." and "Apartment has no heat plumbing issue." (Joint Exhibit 11). This was at a time when Tenants were admittedly not residing in the Premises. The Court finds Tenants were responsible for heat and gas pursuant to their lease, and the lack of heat was more likely than not the result of the termination of Tenants' utility service.

The Court finds on December 3, 2016, a new notice to quit for non-payment of rent was served on Tenants. (Tenants' Exhibit 2). It is this notice to quit which formed the basis of the underlying summary process action.

The Court finds on December 7, 2016 there was another incident at the Premises and both Walter and Landlord called the police. (Joint Exhibit 12). Landlord and a plumber were attempting to enter the Premises with police to check for any issues and found the locks had been changed and Walter denied them access. Walter threatened Landlord with a two (2) foot piece of wood. The Court finds Walter was charged with Assault with a Dangerous Weapon and Assault 209A at the request of the police. The Court finds Walter was later tried on the charges and found not guilty.

The Court finds that on December 31, 2016, Walter again visited Vic's and voluntarily signed over ownership of the camper and truck to Vic's. (Joint Exhibit 6). During trial, Robert Jones, a licensed private investigator, testified that he interviewed the owner of Vic's, Zaibak Alzaibax, who claimed that on December 31, 2016 he informed Walter that he would release both vehicles for $300.00. Walter stated that he shouldn't have to pay the bill because it was his landlord's bill and he was taking her to court. The Court credits Robert Jones' testimony and finds Walter had the opportunity to reclaim his vehicles for $300.00, chose not to do so and voluntarily transferred ownership of the vehicles to Vic's in satisfaction of the towing and storage charges.

On January 5, 2017, Landlord received a call from the upstairs tenant at the Premises about running water. Landlord, Leo and a police officer came to the Premises. They found no one there. They called Walter, who came to the Premises and let them in. Once inside, they observed the chain on the toilet had been unhooked, resulting in the constant running of the toilet. They also observed that the outside water spigot had been turned on from a valve inside Tenants' space, and the water left running from an outside hose for an extended period of time. The upstairs tenant reported to Landlord that he heard the water was running all night.

On January 19, 2017, the parties signed an agreement in this Court as part of the original summary process action (the "Agreement"). (Joint Exhibit 10). In the Agreement, the parties acknowledged "the defendants vacated the subject premises prior to this day and further agree to remove any remaining personal belongings on or before February 1, 2017 returning all keys to the plaintiff." Notwithstanding Tenants' acknowledgment that they had vacated the Premises sometime prior to January 19, 2017, the Court finds that on January 31, 2017, Walter reported housing code violations to the City of Fall River housing inspector. The complaint was made one day before Tenants were required to turn in the keys to the Premises. The January 31, 2017 inspection report found no heat in the unheated basement room, chirping smoke detectors, a water-stained bathroom ceiling, an unsecure stack pipe and a missing light switch cover. (Joint Exhibit 14). The same report also states: "[w]indows, floors, doors, ceilings, roof, in good condition" and [s]inks, tubs/showers, toilets, heating equipment, gas pipes, water heating equipment, stove and ovens, electrical fixtures, and wiring. The above equipment is maintained and in good working order." The Court finds none of these conditions were serious, or that they endangered the health or safety of the Tenants, or that they diminished the fair rental value of the Premises. Further, the Court finds that even if the conditions were serious, they were intentionally caused by Tenants after they ceased residing in the Premises for the express purpose of causing harm to Landlord.

The Court finds that on February 2, 2017, the day after Tenants surrendered the keys pursuant to the Agreement, Landlord inspected the Premises and found extensive damage including, but not limited to, what appeared to be human urine on the floors and in Gatorade bottles found inside cabinets, cut cable, alarm, telephone and Wi-Fi wires, the wiring from the pole to the house was disconnected, holes in walls in every room, missing light fixtures, yarn stuffed into ductwork, window locks broken from the interior of the windows, a broken glass block window, broken blinds, cracked ceiling tiles, missing shelving, a missing heater motor, missing light bulbs, missing doorbell, missing garden bench, swing set and pool equipment, missing pipes, piles of wood left outside, rutted grass and landscaping, dug up garden beds/landscaping and a variety of other missing items as detailed in a police report. (Joint Exhibit 15, Landlord's Exhibit 6 and Tenants' Exhibit 5). Photographs depicting the damage were also admitted into evidence. (Tenants' Exhibits 7-8). [Note 3] These conditions were not observed by the housing inspector when he inspected the Premises on January 31, 2017. The Court finds Tenants, who were in exclusive possession of the Premises until February 1, 2107 pursuant to the Agreement, maliciously damaged the Premises.

Leo credibly testified that it cost Landlord between $6,000.00 and $7,000.00 to repair the interior damage and another $3,000.00-$4,000.00 to repair the damage done to the landscaping and home exterior. Landlord credibly testified the damages incurred exceeded $10,000.00. Neither Leo nor Landlord presented any documentation as evidence of the costs incurred; their testimony constituted the only evidence regarding damages. Tenants did not produce any evidence to dispute Landlord's and Leo's testimony concerning the actual cost of repairs or the reasonableness of that cost. In the absence of any other evidence to the contrary, the Court accepts the testimony regarding damages as true. The Court finds Landlord had to repair damage to the Premises caused by Tenants at a cost of $10,000.00.

The Court finds the Tenants' testimony was inconsistent and generally lacked credibility. The Court does not credit their testimony concerning any of their conditions based counterclaims. The uncontroverted evidence showed the Premises was pristine when Tenants moved into the family home, and that is why Leo and Landlord wanted Stephanie to convalesce there. The Court finds Tenants failed to show by a preponderance of the evidence that Landlord attempted to convert Walter's vehicles. Finally, the Court finds no basis in law or in fact for rewarding the reprehensible conduct of Tenants.

Rulings of Law

Landlord's Claims for Property Damage and Conversion. Tenants' malicious and willful conduct caused substantial damage to the Premises. Landlord established actual damages resulting from Tenants' conduct in the amount of $10,000.00. This amounts to the reasonable cost incurred to repair the damage caused by Tenants.

Tenants' Claim for Retaliation. A tenant may recover damages under G.L. c. 186, §18 if the landlord's act of commencing a summary process action or serving the tenant with a notice of termination upon which the action is based, was in retaliation for, among other things, exercising tenant's rights under state and/or federal law. Under Section 18 (except in cases of non-payment of rent), the commencement of a summary process action against a tenant, or the sending of a notice to quit upon which the summary process action is based within six (6) months after the tenant has engaged in such protected activity shall create a rebuttable presumption that the termination was in reprisal for engaging in such protected activity. Here, Tenants are not entitled to the rebuttable presumption because the summary process action was brought for non-payment of rent; but even it Tenants had been entitled to the presumption of retaliation, Landlord presented clear and convincing evidence that her actions were not taken in reprisal for Tenants' protected activities, that Landlord had sufficient independent justification for taking such action, and that Landlord would have taken such action in any event, even if the Tenants had not taken the actions protected by statute.

Here, the belligerent and extreme conduct of Tenants, and particularly Walter, provided independent justification for terminating Tenants' occupancy, and it was clear Landlord would have brought this summary process action, in the same manner and at the same time, even if Tenants had not requested repairs or accused Landlord of theft within six (6) months of the commencement of this action. The overwhelming evidence showed Tenants engaged in a pattern of threatening and harassing conduct intended to harm Landlord. Accordingly, the Court finds that Tenants are not entitled to damages pursuant to G.L. c. 239, §18.

Tenants' Claims for Breach of Warranties and Damages Pursuant to G.L. c. 239, §8A. Tenants claim that bad conditions within the Premises amount to breaches of the implied warranty of habitability and covenant of quiet enjoyment, and they claim damages pursuant to G.L. c. 239, §8A. There exists with respect to every residential tenancy an implied warranty of habitability that the premises are fit for human habitation. A landlord is in breach of this warranty where there exist defects that may materially affect the health or safety of occupants. Boston Hous. Authy. v. Hemingway, 363 Mass. 184 , 199 (1973). The breach continues until the defect or violation is remedied. Berman & Sons, Inc. v. Jefferson, 379 Mass. 196 (1979). In considering a breach of the warranty of habitability, "[t]he existence of a material or substantial breach is a question of fact and must be determined in the circumstances and facts of each case." Jablonski v. Casey, 64 Mass. App. Ct. 744 , 746 (2005). "Factors ... aiding the court's determination of the materiality of an alleged breach ... 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 ... received written or oral notice of the defects; (d) [whether] the residence could be made habitable within a reasonable time; and (e) whether the defects resulted from abnormal conduct or use by the tenant." Ibid. quoting from Boston Hous. Authy. v. Hemingway, 363 Mass. at 200-201.

The quiet enjoyment statute, G.L. c. 186, §14, 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 month's rent, whichever is greater . . ." While the statute does not require that the landlord's conduct be intentional, Simon v. Solomon, 385 Mass. 91 (1982), there must at least be negligent conduct on the part of the landlord. Al-Ziab v. Mourgis, 424 Mass. 847 , 851 (1997). In order for the breach to meet the statutory threshold, the tenant must provide proof that the landlord's conduct caused a "serious" interference with the tenant's quiet enjoyment of the premises. See Jablonski v. Clemons, 60 Mass. App. Ct. 473 (2004). A serious interference is an act or omission that impairs the character and value of the leased premises. Doe v. New Bedford Hous. Authy., 417 Mass. 273 , 284-285 (1994); Lowery v. Robinson, 13 Mass. App. Ct. 982 (1982); see also Al-Ziab v. Mourgis, 424 Mass. 847 , 850-851 (1997).

Here, the Court finds there is no credible evidence that any of the conditions within the Premises were serious, or that any of the conditions endangered the health or safety of Tenants. The evidence showed Tenants made a series of false claims after they moved out, and that to the extent conditions existed in the Premises, Tenants caused such conditions themselves. Accordingly, the Court finds that the existence of these conditions did not constitute a material breach of the implied warranty of habitability nor did they cause a serious interference with the Tenants' quiet enjoyment of the Premises. The Court finds Tenants are not entitled to damages pursuant to G.L. c. 239, §8A, nor are they entitled to a defense to possession because the Agreement rendered possession moot.

Tenants' Claim for Conversion of Vehicles. Pursuant to the private tow statute, G.L. c. 266, §120D, a person with lawful control of a premises who directly forbids the owner of a vehicle to park on such premises may tow the vehicle, at the owner's expense, upon notice to the local police department.

Here, the evidence showed that Walter was never granted permission to park vehicles on the subject Premises, and even if he had been given permission to park in the driveway, such permission did not extend to parking vehicles in areas not generally used or suitable for parking, such as the back yard lawn or in an area blocking a secondary means of egress. The evidence showed Leo is fastidious about his landscaping, and the Court does not credit Walter's testimony that he obtained Leo's consent to park his vehicles on the Premises. Further, the uncontroverted evidence showed that Walter was instructed by Landlord several times between November 10, 2016 and November 17, 2016, and also by the police on November 17, 2016, to remove the vehicles as they posed a safety hazard and he had no permission to park them there. Walter failed to remove the vehicles, and Landlord was within her rights as the property owner to have them towed at Walter's expense.

To establish a claim for civil conversion, a plaintiff must prove that the defendant "intentionally or wrongfully exercise[d] acts of ownership, control or dominion over personal property to which he has no right of possession at the time...." Grand Pac. Fin. Corp. v. Brauer, 57 Mass. App. Ct. 407 , 412 (2003), quoting Abington Natl. Bank v. Ashwood Homes, Inc., 19 Mass. App. Ct. 503 , 507 (1985). There was no evidence that Landlord exercised any ownership, dominion or control over the vehicles. She never represented that they were hers and the vehicles were towed directly to Vic's storage facility. The evidence showed that the police informed Walter the next day where his vehicles were located. He could have obtained possession of them for $254.00 that day, and the evidence showed he could have retrieved his vehicles for $300.00 on December 31, 2016. Instead, Walter chose to sign his vehicles over to Vic's in lieu of paying the towing and storage charges.

Massachusetts law requires that a party claiming damages has a duty to attempt to mitigate their damages. See Kiribati Seafood Co., LLC v. Dechert LLP, 478 Mass. 111 , 123 (2017). Here, Walter could have claimed his vehicles on December 31, 2016 for $300.00. Instead, he voluntarily signed them over to Vic's and now seeks damages well in excess of $300.00. If he felt the tow was wrongful, he should have paid the $300.00 and pursued a claim against Landlord for the costs incurred in obtaining possession of his vehicles.

The Court finds and rules that Landlord was permitted to tow Walter's vehicles, at his expense, pursuant to G.L. c. 266, §120D and that there was no credible evidence that Landlord converted his vehicles.

G.L. c. 93A. Massachusetts General Laws c. 93A, §(2)(a) states that "unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful." Subsection (2)(c) states "[t]he attorney general may make rules and regulations interpreting the provisions of subsection 2(a) of this chapter. . . "

Pursuant to the Attorney General's Consumer Protection Regulations codified at 940 CMR 3.17(1)(a)(1) it is considered an unfair or deceptive act or practice for a landlord to rent a dwelling unit which, at the inception of the tenancy "contains a condition which amounts to a violation of law which may endanger or materially impair the health, safety, or well-being of the occupant." Under 940 CMR 3.17(1)(b)(1)-(2), it is also considered an unfair or deceptive act or practice for a landlord to fail, after notice, to: "1. remedy a violation of law in a dwelling unit which may endanger or materially impair the health, safety, or well-being of the occupant, or 2. maintain the dwelling unit in a condition fit for human habitation; provided, however, that said violation of law was not caused by the occupant or others lawfully upon said dwelling unit." (emphasis added).

The Court finds that the evidence failed to show that any conditions existed in the Premises at the inception of the tenancy that would endanger or materially impair the health, safety or well-being of the occupants. The vent pipe issue that was discovered in August 2016 did not endanger or materially impair the safety of the occupants, as evidenced by Liberty's decision to leave the gas on. The evidence also showed the issue was promptly remedied by Landlord. The conditions noted on the inspection report dated January 31, 2017 likewise were minor violations of the type that would not endanger or materially impair the health, safety or well-being of the occupants. More importantly, these conditions were discovered at a time when Tenants were admittedly not residing in the Premises and the evidence clearly showed the Tenants caused the conditions.

The Court finds that the towing of Walter's vehicles was not an unfair or deceptive act or practice. The Court finds the tow was conducted in accordance with the provisions of G.L. c. 266, §120D. The Court finds that Landlord did not represent the vehicles as abandoned; that the tow form was completed by Vic's after Landlord obtained the form from the police department. In addition, Tenants produced no evidence that Landlord is subject to the provisions of G.L. c. 93A.

For the foregoing reasons, the Court finds Tenants are not entitled to recover damages or attorney's fees pursuant to G.L. c. 93A.

ORDER FOR JUDGMENT

Based upon all the credible testimony and evidence presented at trial in light of the governing law, it is ORDERED that:

1. Judgment enter for the Plaintiff/Landlord, Tracy Teixeira, for damages of $10,000.00, plus costs.

2. Judgment enter for the Plaintiff/Landlord, Tracy Teixeira, on each of Defendants'/Tenants' counterclaims.

3. Execution shall issue thirty (30) days after the date on which judgment enters.

SO ORDERED.