INACIO F. GONCALVES, Plaintiff v. CLALDA LOPES GARCIA and

This is a summary process action brought to recover possession of the subject rental premises. The parties appeared pro se. The Defendants did not file an answer but did testify and provide photographic and written documentation at trial without objection. The Plaintiff/Landlord, also testified. The parties appeared on January 24, 2020 for the scheduled hearing. After attempts at mediation failed the parties came before the court for trial.

After hearing testimony, reviewing the evidence submitted by the parties and drawing reasonable inferences therefrom the Court finds the following facts to be undisputed;

1. That the Tenants reside at and the Landlord owns the property located at 240 County Street, New Bedford, Massachusetts ("Premises").

2. That the Tenants had moved into the premises on or about April 1, 2019;

3. That the rent for the premises was $850.00 per month due and payable on the 1st of each month;

4. That the Tenants stopped paying rent in December 2019 and for January 2020 as well;

5. That the Plaintiff caused to be delivered purported notices to terminate tenancy under a lease for non-payment of rent to the Defendants on December 16, 2020. I find the notices to be legally sufficient for the purposes intended;

6. That as of the trial date the Tenants owed the sum of $1700.00 in unpaid rent for the months of December 2019 and January 2020.

Discussion

On the day of trial, the Plaintiff testified that he owned the premises and that the Tenants had stopped paying rent for the months of December 2019 and January 2020. He said that despite multiple requests for payment the Defendants had refused to pay the rent and he had no choice but to seek possession and the unpaid rent through an eviction. Plaintiff moved orally to amend his complaint to reflect January rent of $850.00. The Defendants did not oppose this motion so it was allowed by the Court. The Court credits his testimony on the issue of unpaid rent and his attempts to collect same and finds the sum of $1700.00 being past due and owed by the Defendants.

Through testimony and photographic evidence, the Defendants raised defenses and counterclaims under M.G.L. 239 s. 8A as justification of the withholding of rent based on alleged violation of the warranty of habitability. The Defendants then testified that they had stopped paying the rent because of several reasons. First that the premises were infested with rodents and bed bugs and had been for several months beginning arguably in October 2019. They stated that they had communicated this information orally and via text messaging to the Plaintiff on several occasions. The Defendants then provided several photos showing the presence of rodents on their stove, rodent feces on their counters and insects identified as bed bugs to the Court. The Court found the testimony and evidence provided by the Defendants to be credible.

Under the implied warranty of habitability, the landlord is required to ensure that the premises meet the standards of the state sanitary code. 410 C.M.R. 105, 780 C.M.R. 1 et seq. The Landlord is thus liable for code violations and breaches of warranty. 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. See Haddad v Gonzalez, 410 Mass. 855 , 576 N.E. 2d 658 (1991). Generally, it is exceedingly difficult to fix warranty damages with mathematical certainty, as a result, the prevailing case law allows for the Court to use approximations provided that 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).

Based on the testimony of the Plaintiff and Defendants and the documentary evidence submitted, the Court finds that the Plaintiff had constructive if not actual knowledge of most of the defects noted by the Defendants since at least October of 2019. For this reason the Defendants are entitled to an affirmative defense to possession or to assert conditions-based counterclaims pursuant to G.L. c. 239, § 8A.

While the Defendants were in arrears in their rent before the issuance of the 14 Day Notice to Quit, based upon the credible testimony of the Defendants and the confirmation of many facts by the photographic evidence, the Court finds that the conditions complained of had been in existence for an extended period of time and that Plaintiff knew or should have known of the existence of defective conditions in the Defendants' apartment or at the property. For example the presence of mice and bed bugs clearly existed well before the notice to quit was served. As a result the Court finds that the tenants are entitled to a 50% abatement of rent for 4 months (October 1, 2019 - January 31, 2020). Annual rent = $10,200.00/365 = $27.95 rent per day x .50% = $13.97 x 119 = $1,662.43. The Court awards the Defendants the sum of $1662.43 on the breach of implied warranty of habitability claim.

Set-Off. Setting off the $1662.43 which the Plaintiff owes to the Defendants against the $1700.00 which the Defendants owe to the Plaintiff, the court finds that the Defendants owe the Plaintiff a balance of $37.57 through January 31, 2020, plus costs.

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 for the Plaintiff for unpaid rent of $1,700.00, plus costs of $192.00, totaling $1,892.00.

2. Judgment for the Defendants on their counterclaim for Breach of the Implied Warranty of Habitability for damages of $1,662.43.

3. The foregoing orders for judgment paragraphs 1 and 2 result in a net judgment for the plaintiff in the amount of $229.57.

4. Pursuant to G.L. c. 239 §8A, the Defendants shall have 10 days from the date of this decision (3 days for mailing and 7 days per statute) from receipt of this Order to pay $229.57 to the Plaintiff by certified check, cashier's check, or money order and to file a receipt with the court. If such receipt is then on file with the court, judgment shall enter for the Defendants for possession. If such receipt is not then on file with the court, judgment shall enter for the Plaintiff for possession and unpaid rent of $37.57 through January 31, 2020, plus costs of $192.00, totaling $229.57.

5. The Plaintiff shall within ten (10) days of receipt of this judgment retain the services of a licensed exterminator to exterminate any mice and bed bug infestations to include regular scheduled future extermination visits, as recommended by the exterminator to ensure that all pest infestations in the premises are appropriately addressed.