Home Inayat, LLC, Plaintiff, v. Paul Lusby, Defendant


January 29, 2020

Housing Court, Southeast Division

Joseph L. Michaud, Associate Justice


In this summary process action, the Plaintiff asserted claims for possession and damages for unpaid rent and the defendant asserted claims for breach of implied warranty of habitability, interference with quiet enjoyment, retaliation, reasonable accommodation, discrimination, infliction of emotional distress and violations of G.L. c 93A.

On January 22, 2020 the matters above, with the exception of the 93A claim which was reserved for decision by the judge, were tried to a jury. After a day long trial, the jury returned a verdict in favor of the Plaintiff on its claims for possession and damages for unpaid rent and with the exception of breach of warranty of habitability, for the Plaintiff on Defendants claims.

Based upon all the credible testimony and evidence presented at trial, and the reasonable inferences drawn therefrom, the Court finds as follows on the Defendant's G.L. 93A claim:

The Plaintiff is the owner of 116 County Street 3rd floor, room 10 in New Bedford, Massachusetts ("premises") and is the Defendant's landlord. According to testimony the Defendant has occupied the premises as a tenant at will since December 2018.

At trial the Defendant asserted a counterclaim in the summary process action under the Massachusetts Consumer Protection Statute G.L. c. 93A, which prohibits anyone from using unfair or deceptive acts or practices in the course of business dealings. The jury returned a verdict for the Defendant on his claim of breach of the warranty of habitability and awarded the Defendant the sum of $1000.00 as damages.

The existence of unfair acts and practices must be determined from the circumstances of each case." Commonwealth v. DeCotis, 366 Mass. 234 , 242 (1974). Under G.L. c. 93A, §§ 2 and 9, the circumstances and facts of each case must be analyzed to determine whether the practice in question falls within any recognized conception of unfairness or is immoral, unethical, oppressive, or unscrupulous. Mechanics National Bank of Worcester v. Killeen, 377 Mass. 100 (1979); PMP Associates v. Globe Newspaper Company, 366 Mass. 593 , 596 (1975); Swanson v. Banker's Life Co., 389 Mass. 345 , 349 (1983). There must be a causal connection between the conduct alleged to be unfair or deceptive, and the injury or harm to the person. See, Kohl v. Silver Lake Motors, Inc., 369 Mass. 795 (1976): Glickman v. Brown, 21 Mass. App. Ct. 229 (1985). Injury or harm can include the loss of money or property or the invasion of any legally protected interest. Leardi v. Brown, 394 Mass. 151 , 159-160 (1985).

Chapter 93A, § 9 (3) provides in part that damages " . . . shall be awarded in the amount of actual damages or twenty-five dollars, whichever is greater; or up to three but not less than two times such amount if the Court finds that use or employment of the act or practice was a willful or knowing violation of said section two or that the refusal to grant relief upon demand was made in bad faith with knowledge or reason to know that the act or practice complained of violated section 2."

The Legislature delegated to the Attorney General the power to promulgate regulations that identify, with specificity, acts or practices that are to be considered unfair or deceptive under G.L. c. 93A. 940 CMR § 3.00, et seq. Such regulations have the force of law. Purity Supreme, Inc. v. Attorney General, 380 Mass. 762 (1980).

With respect to residential rental housing 940 CMR § 3.17 (1) (I) provides that "it shall be an unfair and deceptive practice for an owner to . . . fail to comply with the State Sanitary Code or any other law applicable to the conditions of a dwelling unit within a reasonable time after notice of a violation of such code or law from the tenant or agency."

It is important to note however, that not every violation of a law or regulation intended to protect residential tenants will constitute a violation of Chapter 93A. As the Supreme Judicial Court has consistently ruled, "a violation of a law or regulation, including a violation of the building code, will be a violation of c. 93A, § 2 (a), only if the conduct leading to the violation or violations is both unfair or deceptive and occurs in trade or commerce . . . And whether the particular violation or violations qualify as unfair or deceptive conduct 'is best discerned from the circumstances of each case." Klairmont v. Gainsboro Restaurant, Inc., 465 Mass. 165 , 174 (2013). The Court further explained in Klairmont, at p. 176 that ". . . not all building code violations -- indeed, very few -- will give rise to violations of c. 93A, either because they would lack unfairness or deceptiveness . . . or because they do not arise in trade or commerce. Further, it bears emphasizing that at least in the absence of conduct that qualifies as unfair or deceptive, a negligent act or acts, alone, do not violate c. 93A." A violation of the State Sanitary Code, similar to a violation of the State Building Code, on occasion does not always involve conduct that is unfair or deceptive.

I find that there was insufficient evidence presented at trial that establishes that the Plaintiff was engaged in the trade or business of residential real estate within the meaning of G.L. c. 93A at any time relevant to this action. Accordingly I also find that the Plaintiff is not subject to the provisions of G.L. c. 93A.


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

1. Judgment shall enter for the Plaintiff on the Defendants' counterclaim under G.L. c. 93A nunc pro tunc to January 23, 2020 jury verdict.