February 4, 2020

Housing Court, Southeast Division

Donna Salvidio, First Justice


This matter was before the court for a jury-waived trial on January 23, 2020. This is a summary process (eviction) action brought by plaintiff John Lopes ("Plaintiff" or "Landlord") to recover possession of the premises located at 307 Tuttle Street, Apt. 3, Fall River, Massachusetts (the "Premises") based on tenant's failure to pay rent. Defendant Christine Vanasse ("Defendant" or "Tenant") filed an answer alleging problems with her heat and a counterclaim for $10,000.00 arising out of Landlord's disposal of certain personal property she stored in the garage. Both parties appeared for trial and testified.

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

Prior to trial, the parties stipulated to the following facts: Landlord is the owner of the Premises, which he acquired on November 22, 2019. Tenant has resided in the Premises since November 2011. The tenancy is a tenancy at will with no written agreement. The rent is $725.00 per month due on the first day of each month. Tenant has not paid any rent for the months of December 2019 and January 2020, resulting in an arrearage of $1,450.00 owed through January 2020. On December 10, 2019, Landlord served Tenant in-hand with a 14 day notice to quit (the "NTQ") by constable. (Plaintiff's Exhibit 1). Tenant acknowledged her receipt of the NTQ and did not challenge the sufficiency thereof. On December 26, 2019, Tenant was served with a summary process summons and complaint by constable. Tenant acknowledged her receipt of the summons and complaint. Tenant still resides in the Premises.

Landlord's prima facie case was established by the stipulations read into the record. Accordingly, the trial consisted of Tenant's presentation of her affirmative defenses and counterclaim. Tenant testified that the lack of heat in the Premises was a problem during the prior year, before Landlord acquired the Premises. She testified she had no heat in the Premises for the entire month of November through December 3, 2019. The Court credits Tenant's testimony.

The Court finds Landlord and Tenant first met at the Premises on November 25, 2019, three (3) days after Landlord acquired the Premises. The Court finds Landlord called Tenant on December 1, 2019 to ask for the rent, and Tenant responded that she had no heat. Tenant also stated she was waiting for her unemployment check to pay the rent.

The Court finds Tenant testified inconsistently concerning her withholding of rent. She stated in her answer that she withheld rent because of problems with the heat. At trial, however, Tenant testified that she began withholding her rent on the afternoon of December 6, 2019, when she saw that the contents of the garage had been placed in a dumpster on the property. The Court finds Tenant began rent withholding on December 6, 2019, which was after Landlord corrected a problem with the heat on December 3, 2019.

The Court finds Tenant sent Landlord a text message on the morning of December 6, 2019, wherein she stated: "I have not received my unemployment yet Should be any day I was hoping to have it by now I understand that you need to do what you need to do . . . You will always get your rent I hope you understand The timing is just bad Sorry for the inconvenience." (Defendant's Exhibit 5). The Court finds that on December 1, 2019, Tenant was not withholding her rent for bad conditions in the Premises, but was unable to pay her rent because she had not yet received her unemployment check.

The Court finds on December 2, 2019, Tenant complained to the City of Fall River Inspectional Services Division ("Inspectional Services") about a lack of heat and a nonworking stove. (Defendant's Exhibit 3). Joshua Pacheco ("Pacheco") from Inspectional Services made an inspection of the Premises and issued a correction order for insufficient heat dated December 2, 2019. (Defendant's Exhibit 3). Pacheco determined that the stove was not working because Tenant's gas had been shut off and her meter locked. (Defendant's Exhibit 3). The Court finds Landlord did not have a key to the Premises and was unable to gain access to the Premises on December 2, 2019. (Plaintiff's Exhibit 2). On December 3, 2019, Landlord repaired the heat. (Defendant's Exhibit 3). On December 16, 2019, Tenant texted Landlord a photo of her thermostat showing inadequate heat in the Premises. On December 17, 2019, Landlord corrected the heat. On January 5, 2020, Tenant again complained to Landlord about the heat. On January 6, 2020, Landlord again repaired the heat. On January 14, 2020, Tenant complained to Landlord about a lack of heat and on the same day complained to Inspectional Services. (Defendant's Exhibit 4). On January 14, 2020, Pacheco issued a correction order to Landlord for insufficient heat, notice of which was received by Landlord January 15, 2020. (Defendant's Exhibit 4). Landlord restored the heat on January 16, 2020. (Plaintiff's Exhibit 3). The Court finds Tenant was in arrears in her rent when she notified Landlord about the lack of heat, that Landlord promptly responded to each of Tenant's complaints about conditions and that as of the date of trial the Premises had adequate heat.

The Court finds the Premises is part of a four-unit building (the "Building"). Landlord pays for the heat for the Building. None of the other tenants in the Building have complained to Landlord about a lack of heat. All of the apartments in the Building are serviced by the same heating facilities. The Court finds Tenant cares for her sick father at his home every Wednesday through Friday. The Court finds Landlord had difficulty gaining access to the Premises because he had no key and Tenant did not immediately respond to his requests for access. (Plaintiff's Exhibit 2). The Court finds Landlord first obtained a key to the Premises during the week of January 13, 2020.

Tenant's counterclaim concerns the disposal of her personal property from the garage. Tenant testified that she closed her hair salon in 2016 and stored her former salon equipment in the garage, where it remained until disposed of by Landlord. The Court finds that on December 2, 2019, Landlord placed a dumpster on the property. On the same day, Landlord provided verbal notice to Tenant of the need to remove her personal property from the basement and the garage. Tenant mentioned having two (2) air conditioners in the basement but said nothing about having anything in the garage. The Court credits Landlord's testimony.

Tenant testified that she returned from staying at her father's home on the afternoon of December 6, 2019 to find the dumpster purportedly full of her belongings. At trial, she introduced a photograph of the dumpster taken on December 6, 2019. (Defendant's Exhibit 2). The Court finds the photo shows a full dumpster, but nothing resembling salon equipment therein.

On December 9, 2019, Landlord delivered written notice to all of the tenants in the Building informing them of the need to remove their personal belongings from the basement, porch and garage by December 13, 2019 at 3:00 P.M. Tenant did not return her copy of the written notice to Landlord indicating whether she claimed items in such areas, although at trial Tenant offered her copy of Landlord's written notice to her. (Defendant's Exhibit 1). Tenant testified that her belongings were already in the dumpster when she received the Landlord's written notice. Landlord produced a photograph of four (4) mismatched chairs of Tenant's that were kept in the garage. (Plaintiff's Exhibit 5). The Court finds Tenant was provided an opportunity to keep the chairs before they were disposed of for scrap, and the chairs appeared to be dirty and in poor condition. The Court finds the dumpster was removed from the property on December 13, 2019. Even if Landlord disposed of items belonging to Tenant in the garage, the Court finds Tenant was provided with advance notice on December 2, 2019 and an opportunity to remove such items. The Court finds Tenant presented no inventory of her items stored in the garage and no evidence of their value. The Court finds Tenant provided no credible evidence to support her counterclaim.

Rulings of Law

Landlord's Rental Claim. The court finds Landlord presented a prima facie case for possession and $1,450.00 in unpaid rent, subject to Tenant's defenses and counterclaims.

Tenant's Defense and Counterclaim. Tenant testified about a lack of heat in the Premises. This condition existed before Landlord purchased the property on November 22, 2019. There was no evidence Landlord was aware of a problem with the heat until December 1, 2019, the same day Landlord asked Tenant for the December rent.

M.G.L. c. 239, §8A provides that where a tenancy has been terminated for non-payment of rent or without fault of the tenant, the tenant shall be entitled to raise as a defense or counterclaim "any claim against the plaintiff relating to or arising out of such property, rental, tenancy or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law." Where the defense or counterclaim is based upon the condition of the premises or services provided to the premises by the landlord, the tenant is entitled to a defense to possession only if: (1) the landlord knew or should have known of the condition before the tenant was in arrears in her rent; (2) the landlord does not show that the tenant caused the condition; and (3) the landlord does not show that the conditions cannot be remedied unless the premises are vacated.

Defendant alleged in her answer that the Premises had conditions that would warrant a finding that Plaintiff had breached the warranty of habitability. The warranty of habitability is the landlord's promise that the premises will meet certain standards set out in the State Sanitary Code, State Building Code, or other regulations concerning residential premises. A landlord has breached the implied warranty of habitability when any part of the premises occupied or used by the tenant are in material violation of the minimum standards expressed in the State Sanitary Code. Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973). A landlord must have actual or constructive notice of the condition creating the violation. McKenna v. Begin, 3 Mass. App. Ct. 168 (1975). Damages are assessed from the date the landlord had notice of the condition of disrepair. Berman & Sons 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 Court determines that Landlord materially breached the implied warranty of habitability by failing to provide adequate heat to the Premises from December 1, 2019, when Landlord first became aware of the issue, until December 3, 2019, when the heat was repaired. Subsequent breaches of warranty occurred between December 16th and 17th, between January 5th and 6th and between January 14th and 16th. The Court finds Landlord acted promptly each time to restore the heat and addressed the violations cited by Inspectional Services on December 2, 2019 and January 14, 2020. In the aggregate, the breaches continued for a period of ten (10) days.

The Court finds Defendant is entitled to an affirmative defense to possession under G.L. c. 239, §8A because Landlord learned of problems with the heat on the same day Tenant was first in arrears in her rent. The measure of damages for breach of the implied warranty of habitability is the difference between the fair rental value of the premises free of defects and the fair rental value of the premises during the period in which the defective conditions existed. The Court finds that the fair rental value of the premises was $725.00 per month for the period of December 2019 through January 2020. The Court finds that the Defendant is entitled to a rent abatement of one hundred percent (100%) for the ten (10) days during which time the Premises had inadequate heat. The abatement is calculated as follows: ($725.00 x 12 = $8,700.00 ÷ 365 = $23.84/day x 10 days = $238.40 x 100% = $238.40). Accordingly, Tenant is entitled to damages of $238.40 on her claim for breach of warranty.

The Court finds there was no credible evidence at trial that Tenant is entitled to $10,000.00 on her counterclaim for disposal of her personal property.


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 for unpaid rent in the amount of $1,450.00, plus court costs in the amount of $140.00, for a total of $1590.00.

2. Judgment enter for Defendant on her counterclaim for breach of the implied warranty of habitability in the amount of $238.40.

3. The foregoing order for judgment paragraphs 1 and 2 result in a net award of damages to the Plaintiff in the amount of $1,351.60.

4. Judgment enter for Defendant for possession pursuant to the fifth paragraph of G.L. c. 239, §8A, on the condition that within seven (7) days of her receipt of this ORDER, the Defendant deposits with the Clerk of this Court, the sum of $1,211.60, plus costs in the amount of $140.00, a total of $1,351.60, in the form of certified check, cashier's check, or money order, payable to the Plaintiff. If this deposit is made, the Clerk shall immediately release all funds held by the Court to the Plaintiff. If the deposit is not made, judgment shall automatically enter in favor of the Plaintiff for possession and damages in the amount of $1,211.60, plus costs in the amount of $140.00, a total of $1,351.60, on the next business day following the expiration of the tenth (10th) day from the date of this Order.