S & B PROPERTY MANAGEMENT & WHITE WINTER REALTY vs. EDWIN HERNANDEZ & ISABEL MIRANDA

This is a summary process (eviction) action brought to recover possession of the subject rental premises based on non-payment of rent. The plaintiffs were represented by counsel; the defendants were self-represented. The defendants filed an answer with counterclaims. Property manager Moshe Gazit testified for the plaintiff. Both defendants testified at trial. Based on the credible evidence at trial on January 28 and February 3, 2020 and the reasonable inferences drawn therefrom, in light of the governing law, the following findings, rulings and orders are to enter:

The plaintiff is the owner of the subject rental premises, located at 127 Winter Street in Haverhill, Massachusetts. The defendants, Edwin Hernandez and Isabel Miranda, reside in apartment no. 37 at the property, which is a one-bedroom apartment. Mr. Hernandez signed a one-year lease which began on November 1, 2017 (Exh 1). [Note 1] He is the only person listed on the lease. The monthly rent is $800, due on the first. In June 2019, the defendant paid an extra $50 toward the rent. No rent was paid in July. Mr. Gazit testified that he had a constable serve a fourteen-day notice to quit for non-payment of rent in September (Exh C). $800 was paid toward the rental arrearage in September. No rent was paid in October. Mr. Gazit had a second notice to quit for non-payment of rent served on October 4, 2019 (Exh 3). $800 was paid toward the rental arrearage in November. At the time of trial, Mr. Gazit testified that the tenants owed $4,750 in unpaid rent/use and occupancy through February 2020 (Exh 2).

Mr. Hernandez submitted money order receipts showing two additional $800 payments, one in August and one in December (Exh B). The hand-written notation on the November money order receipts indicate that it was being paid for September. The hand-written notation on the December money order receipts indicate that it was being paid for October. There are no money order receipts dated in July. At trial, the landlord agreed to waive its claim for two of the months rent/use and occupancy to avoid the cost of determining who had cashed the money orders. Mr. Hernandez agreed that there were four months that were not paid. The documents of both parties show that the last time the defendants were current in the rent was in June 2019. The court finds that the defendants owe $3,150 in unpaid rent/use and occupancy through February 2020 (four months minus the extra $50 recorded on the plaintiff's ledger for June.)

The defendants raised procedural defenses based on the notice to quit and the summons and complaint. The court does not find any merit to these procedural defenses. Ms. Miranda denied receiving a notice to quit. However, Mr. Hernandez submitted the notice to quit dated September 5, 2019 to the court. This notice to quit was not cured.

The court finds that the plaintiff established its prima facie case for eviction.

The defendants raised defenses and counterclaims based on warranty of habitability, quiet enjoyment, security deposit, retaliation and discrimination based on familial status.

Warranty of Habitability. Under the implied warranty of habitability, the landlord assures that the premises meet the standards of the state Sanitary Code. 105 C.M.R. 410, 780 C.M.R. 1 et seq. The landlord is liable for code violations and breach of warranties. A tenant is entitled to damages equivalent to the value of the premises if they were up to Code minus their value in their actual, defective condition. Haddad v. Gonzalez, 410 Mass. 855 , 576 N.E.2d 658 (1991). It is usually impossible to fix warranty damages with mathematical certainty; the case law permits the courts to use approximate dollar figure so long as those figures are reasonably grounded in the evidence presented at trial. Young v. Patukonis, 24 Mass. App. Ct. 907 , 506 N.E.2d 1164 (1987).

Ms. Miranda testified that on August 19, 2019 Mr. Gazit approached her in the hallway and asked her about the rent. She testified that she told him that there were roaches and rodents, leaks in the sink, insufficient heat in the bathroom and an accumulation of trash. Mr. Gazit told her to put it in writing. He sent her an e-mail with his contact information (Exh D). [Note 2] She replied on August 30, 2019 by e-mail from "Bella Miranda" to "Moshe Gazit" that there were problems with "rodents, cockroaches, bed bugs, etc." (Exh D).

On September 5, 2019 the City of Haverhill Board of Health (BOH) inspected the premises. They issued a report the next day citing the landlord for violations of the state Sanitary Code, window sashes screwed shut in the front common area staircase, insects in multiple light fixtures, roach infestation, bedroom door into common hallway sealed shut, illegal wiring of overhead light fixture in kitchen and illegal wiring of wall-mounted heater in the bedroom. The landlord was ordered to exterminate the entire building (Exh F). Also on September 5, Ms. Miranda sent a rent withholding letter to Mr. Gazit (Exh 4 & Exh E). However, by then the defendants were already behind in the rent.

There was a delay in making the repairs (Exh H). The BOH filed a request for criminal complaint dated October 2, 2019 (Exh G). The court took judicial notice that a criminal complaint issued in Haverhill Board of Health v. Moshe Gazit, No. 19CR00062 on October 30, 2019. It was dismissed on December 11, 2019 when the BOH filed a Nolle Prosequi with the court. [Note 3] Mr. Gazit submitted a letter of compliance based on a November 25, 2019 re-inspection (Exh 5). [Note 4]

Ms. Miranda testified that there was another Board of Health inspection on January 15, 2020 which found new violations. However, she did not produce a BOH report from such an inspection. She testified that there was still a roach infestation despite the exterminations that were done.

Mr. Gazit testified that when he met Ms. Miranda in the hallway in August, she told him there were problems in the apartment, but she did not specify what they were. The first specific notice was her e-mail dated August 30, 2019. He contacted an exterminator immediately after the holiday weekend when he received the e-mail. Ms. Miranda testified that she texted him, but he testified that he does not text or receive texts. He testified that there was a delay in receiving the BOH reports. He does not receive mail at the Lynnfield address which the BOH used on the inspection reports to him and the request for criminal complaints. He learned that he had to come to court when the inspector spoke with him on the phone. (He changed his address when he came to court for the probable cause hearings on October 23, 2019.)

Mr. Gazit testified that there had been problems with the tenants allowing access for the exterminations in September and again in January (Exh 7 & Exh 8 admitted into evidence except for hearsay statements of non-parties contained in the documents). He submitted a service invoice from Patriot Pest Management dated January 31, 2020. Ms. Miranda admitted that she had signed the invoice, but denied that the hand-written notation was there when she signed it. The hand-written notation states, "[illegible] entire unit - we did not find any evidence of mice activity but we place three (3) bait stations in the unit" (Exh 9).

In order to prevail on a warranty of habitability counterclaim pursuant to G.L. c. 239 §8A, a tenant must show that there were violations of the state Sanitary Code which materially impaired the use of the apartment and that the landlord had knowledge of the conditions while the tenant was current in the rent. In this case, based on the credible evidence at trial of all parties, the court finds that the landlord first had knowledge of the conditions only in late August. By that time, the tenants were already behind in the rent.

The counterclaim based on warranty of habitability is DISMISSED.

Covenant of Quiet Enjoyment. A tenant is entitled to the enjoyment of his or her property for the life of the tenancy, without interference. Simon v. Solomon, 385 Mass. 91 , 431 N.E.2d 556, 569 (1982). In order for such a breach to meet the high standard required for a breach of quiet enjoyment, the parties must show that the breach was sufficiently serious and/or prolonged to meet the statutory threshold. Leardi v. Brown, 394 Mass. 151 , 474 N.E.2d 1094 (1985). A finding of at least negligent conduct is a prerequisite for a finding of a statutory violation. See, Al-Ziab v. Mourgis, 424 Mass. 847 , 850 (1997).

The defendants alleged that the conditions in the apartment were a breach of the covenant of quiet enjoyment. There was no evidence submitted about insufficient heat. The court finds that the violations of the Sanitary Code as cited by the Board of Health do not rise to the level of a breach of the covenant of quiet enjoyment.

The counterclaim based on the covenant of quiet enjoyment is DISMISSED.

Security Deposit. There was no evidence presented that the defendants paid a security deposit. Mr. Gazit testified that Mr. Hernandez paid $800 as last month rent at the outset of the tenancy. It is still on account.

The counterclaim based on violation of the security deposit law is DISMISSED.

Retaliation. Pursuant to G.L. c. 239 §2A, a tenant has a defense to a landlord's claim for possession and a claim for damages pursuant to G.L. c. 186 §18 if the landlord seeks to evict the tenant in retaliation for a protected activity, including contacting a local code enforcement agency or sending a rent withholding letter. G.L. c. 239 §2A provides that the receipt of a notice to quit within six months of a tenant's engaging in the protected activity creates a rebuttable presumption that the landlord's action was retaliatory. G.L. c. 186 §18 provides that the receipt of a notice to quit, other than for non-payment of rent, within six months of a tenant's engaging in the protected activity creates a rebuttable presumption that the landlord's action was retaliatory.

The evidence shows that the first written notice of bad conditions in the apartment was by e-mail on August 30, 2019 (Exh D). On September 5, 2019 the BOH inspected the apartment (Exh F), a constable served a fourteen-day notice to quit (Exh C) and Ms. Miranda sent a rent withholding notice by e-mail at 6:08 p.m. (Exh 4 & Exh E). There was no evidence at trial regarding the time on September 5 that the constable served the notice to quit, so it is not known whether the notice to quit or the rent withholding letter was first in time. Assuming arguendo that the notice to quit was the last of the three events that day, the court will address the potential rebuttable presumption of retaliation. This would shift the burden to the plaintiff to rebut by clear and convincing evidence that his action was not a reprisal against the defendants and that he 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" even if the defendants had not engaged in the protected activities. The court finds that Mr. Gazit did rebut any such presumption. He testified credibly that the reason for service of the September notice to quit for non-payment of rent was that the tenants were behind in their rent. When the October 4, 2019 notice to quit for non-payment of rent was served, they were further behind in the rent. The service of the summons and complaint (Exh 6) occurred after the Board of Health found that the repairs had been made and the tenants did not resume making payments and in fact, fell further behind in the rent. The defendants did not meet their burden of proof on the issue.

The counterclaim based on retaliation is DISMISSED.

Discrimination. In their answer the defendants raised a claim of discrimination based on familial status. At trial there was much testimony about when Ms. Miranda moved into the unit. It is clear that only Mr. Hernandez is listed on the lease. He testified that his two minor children moved in with him in November 2017 and his wife, Isabel Miranda, joined them in February 2018. Mr. Gazit testified that he did not know that the children or Ms. Miranda's wife moved into the one-bedroom apartment until August 2019. In any event, there was no credible testimony that the plaintiff discriminated against the defendants on the basis of being married or having children.

The counterclaim based on familial status discrimination is DISMISSED.

Order for Entry of judgment. For the above-stated reasons, Judgment shall enter for the plaintiff for possession of the subject rental premises and $3,150 in unpaid rent/use and occupancy through February 2020 with costs and interest.