Home Valerie Beroth v. Andrew Everson


February, 2020

Housing Court, Southeast Division

Joseph L. Michaud, Associate Justice


This is a summary process action brought to recover possession of the subject rental premises via a 30 day Notice to Quit. The Defendant filed an answer with defenses but no counterclaims. He appeared and testified at trial without objection. The Plaintiff, represented by counsel, appeared and testified on her behalf. Based on the credible testimony and evidence presented at trial and the reasonable inferences to be drawn therefrom the following findings, rulings and orders are to enter:

1. Plaintiff/Landlord is the owner of the subject rental premises located at 155 West Main Street, 1st floor front, Norton Massachusetts where the Defendant/Tenant resides. ("Premises");

2. The parties entered into an oral residential agreement on or about October 1, 2015;

3. The parties agreed that the monthly rental amount was $925.00 due on the first of each month.

4. At trial, Plaintiff moved orally to amend her complaint claiming that rent for the months of January and February 2020 was past due and payable and totaled $1850.00.

5. The Defendant did not object to this motion so the amendment was allowed and the complaint was amended to reflect a claim for damages of $1850.00;

6. On November 26, 2019 the Plaintiff served and the Defendant received a 30 day notice to quit.

7. On January 13, 2020 a Summary Process Summons and Complaint was served by Plaintiff upon the Defendant;

8. The Court finds both documents to be legally sufficient for the purposes intended;

9. Defendant filed an answer claiming inter alia that he was withholding rent because the Plaintiff had allegedly refused to compensate him for materials and labor performed on the property and the condition of some areas of the Premises;

10. Plaintiff claims that she never authorized the work or the purchase of materials;

Plaintiff testified that she was the owner of the property. She further testified that due to the untimely death of her husband that she had been somewhat distracted during a period of the Defendant's tenancy concerning some of the work performed by the Defendant on the premises. She stated that she had not agreed to the work the Defendant had done but that she had discussed it via text on occasion and was aware of most of what the Defendant had done but that costs had not been discussed. She hadn't approved of the stove and refrigerator being replaced and was unaware of the costs related to same. She further testified that the Defendant had not paid his rent for January and February without providing a written basis for doing so. The Court credits this testimony.

In his answer the Defendant raised defenses based on improper termination, retaliation, discrimination and failure to reasonably accommodate his disability, bad conditions within the premises, and violating the consumer protection agreement. Defendant testified that when he moved in that he had to make repairs to the premises in addressing cracked and leaking ceilings, and a degree of potential mold removal. He submitted several photographs indicating the conditions (Defendants exhibit 1 and 2) and then explained that he had done some extensive painting to address same. The Court credits this testimony. Defendant further testified that the stove and refrigerator were broken or otherwise in need of replacement and that he informed the Plaintiff of this. The Plaintiff testified that he did not ask permission to replace these items and simply informed her that he was doing so. The Court credits the testimony of the Plaintiff with respect to this aspect.

Defendant further testified that he discussed and replaced the doors on the garage with the approval of the Plaintiff. Plaintiff testified that while she knew about his desire to replace the doors she never received a cost estimate nor did she approve of style or costs. She also testified that the middle door is now inoperable. The Court finds the testimony and evidence provided by both parties to be credible.

Defendant finally testified that he had cut the grass and did other small jobs at the premises on behalf of the Plaintiff and never sought compensation for that either.

Improper termination. The Defendant proffered no evidence in support of his defense of improper termination. An examination of the documentation indicates no discrepancies meriting a dismissal of the present action. Judgment for the Plaintiff on this count.

Discrimination and failure to reasonably accommodate. Defendant presented no evidence in support of his allegation. Judgment for the Plaintiff on this count.

Bad Conditions in the Unit. Under the implied warranty of habitability, the landlord assures that the premises meet the standards of the State Sanitary Codes. 105 CMR 410, 780 CMR 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. Boston Housing Authority v. Hemingway, 379 Mass. 196 (1979); Haddad v. Gonzalez, 410 Mass. 855 , 576 N.E.2d 658 (1991). It is usually impossible to fix warranty damages with mathematical certainty. However, the case law permits the court to use approximate dollar figures as long as those figures are reasonably grounded in the evidence at trial. Young v. Patukonis, 24 Mass. App. Ct. 907 , 506 N.E.2d 1164 (1987).

The Defendant failed to produce enough evidence that would rise to the level in which the rent should be abated. There was no board of health report and other than the photographs there was really no other evidence that would support his claims.

The court finds that the violations alleged by the Defendant, even taken in totality, do not materially impair the value of the premises. As such the Court finds for the Plaintiff on the issue of Breach of Warranty of Habitability.

Retaliation. Pursuant to G.L. c. 239 §2A, a tenant has a defense to the landlord's claim for possession and a claim for damages pursuant to G.L. c. 186 §18 if the landlord's commencement of a summary process action is in retaliation for a protected activity. G.L. c. 239 §2A provides that the commencement of a summary process action within six months of a tenant's engaging in the protected activity creates a rebuttable presumption that the landlord's action was retaliatory.

The Court finds that the Defendant did not engage in any protected activity The court further finds that the evidence shows that the plaintiff did not retaliate against the defendant pursuant to G.L. c. 186 §18. As such the Court enters judgment for the Plaintiff on the count of retaliation.

M.G.L. 93A. The Defendant presented no evidence that the Plaintiff is subject to the jurisdiction of G.L. 93A. Judgment for the Plaintiff on this count.

Quantum Meruit. Defendants orally claimed under a purported theory of quantum meruit that he should be compensated for the value of services and materials concerning his improvements to the premises. He stated that he had worked at least 40 hours doing painting, repairing and painting the ceiling in his unit and that he had replaced garage doors on the premises. The Plaintiff did not dispute these items of repair and material replacement. The Defendant provided no receipts or invoices reflecting the materials provided or his labor. Despite the lack of documentary evidence, based upon the testimony of the parties the Court finds that there is inherent value in the labor and materials provided by the Defendant and that this has benefitted the Plaintiff. It is well established that in order to recover damages on a theory of quantum meruit, one party must have been unjustly enriched to the other party's detriment. Salamon v. Terra, 394 Mass. 857 , 859 (1985). "The underlying basis for awarding quantum meruit damages in a quasi-contract case is unjust enrichment of one party and unjust detriment to the other party. (citations omitted)...'The injustice of the enrichment or detriment in quasi-contract equates with the defeat of someone's reasonable expectations.' (citation omitted)." Id. In this case, the Court finds that the work Defendant did at the premises while originally intended to be for his own use and benefit during his tenancy has also resulted in an unjust benefit to Plaintiff. Accordingly, the Court finds that the Defendant is entitled to recover damages in quantum meruit in the amount of $1850.00. The Defendant shall not be allowed to remove any of the repairs or replacements to include the stove but may remove the refrigerator upon his vacating the unit.

Set-Off. Setting off the $1850.00 which the Defendant owes to the Plaintiff against the $1850.00 which the Plaintiff owes to the Defendant, I find that the Defendant owes a balance of $0.00 to the Plaintiff.

Order and Entry of Judgment. For the above-stated reasons

1. Possession of the subject rental premises, and the costs related to the prosecution of this matter for the Plaintiff.

2. Judgment for the Plaintiff on the counterclaims asserted above by the Defendant with the exception of the quantum meruit claim which is discussed above;

3. Execution for possession to issue 10 days from the entry of judgment.