Residential Landlord-Tenant Practice: Creating and ...and Occupancy and Supporting Affidavit ......

MCLE, Inc. | 6th Edition 2017 4–i

CHAPTER 4

Residential Landlord-Tenant Practice: Creating and Terminating Residential Tenancies

Catherine F. Downing, Esq. Law Offices of Catherine F. Downing & Associates, Boston

James M. McCreight, Esq. Greater Boston Legal Services, Boston

§ 4.1 Creating a Residential Tenancy .................................................. 4–1

§ 4.1.1 Introduction .................................................................. 4–1

§ 4.1.2 Tenant Selection and Application Process .................... 4–2

(a) Obtaining and Evaluating Prior Landlord References and Credit Reports ............................ 4–2

(b) Discrimination and Disability Issues in Renting ............................................................ 4–4

(c) Issues with Regard to Applicants to Public Housing and Federally Subsidized Housing ........ 4–4

(d) Obtaining and Evaluating Information Under the Criminal Offender Record Information Act ................................................... 4–8

(e) Obtaining and Evaluating Information from Sex Offender Registry Records ................ 4–10

(f) Preparing the Unit for Rental ............................ 4–13

(g) Carbon Monoxide Detectors .............................. 4–14

(h) Charging the Tenant for Water Usage ................ 4–18

§ 4.1.3 Working with Brokers ................................................. 4–21

(a) Agreements ........................................................ 4–21

(b) Standards ........................................................... 4–21

(c) Application Fees ................................................ 4–22

§ 4.1.4 Evaluation of Landlord ............................................... 4–22

Massachusetts Basic Practice Manual

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(a) Obtaining Information from Board of Health or Inspectional Services .................................... 4–22

(b) Interviewing Former and Current Residents ..... 4–23

§ 4.1.5 Negotiating and Drafting the Terms of the Tenancy ................................................................ 4–23

(a) Types of Tenancy .............................................. 4–23

(b) Terms of the Tenancy ........................................ 4–25

§ 4.1.6 Fees and Deposits ....................................................... 4–31

(a) Receipt and Holding of the Security Deposit .... 4–32

(b) Receipt and Holding of Last Month’s Rent ...... 4–33

(c) Returning the Security Deposit ......................... 4–34

§ 4.2 Terminating a Residential Tenancy ......................................... 4–35

§ 4.2.1 Evictions .................................................................... 4–35

(a) Terminating the Tenancy ................................... 4–36

(b) Commencing the Summary Process Action ...... 4–39

(c) Filing the Answer; Jury Demand ...................... 4–41

(d) Procedural Defenses .......................................... 4–47

(e) Substantive Defenses ........................................ 4–60

§ 4.2.2 Third-Party Practice in Summary Process Actions .... 4–98

§ 4.2.3 Discovery ................................................................. 4–101

(a) Generally ......................................................... 4–101

(b) Tenant Request for Information ...................... 4–102

(c) Landlord Request for Information .................. 4–103

(d) Motions for Protective Orders or to Strike Discovery ........................................................ 4–103

(e) Motions to Compel ......................................... 4–105

(f) Depositions ..................................................... 4–106

§ 4.2.4 Settlement................................................................. 4–106

(a) Practical Considerations in Negotiating and Writing Agreements ................................. 4–107

(b) Modification and Enforcement of Agreements ................................................. 4–112

Creating and Terminating Residential Tenancies

MCLE, Inc. | 6th Edition 2017 4–iii

(c) The Approval Process in the Housing Courts .............................................................. 4–112

(d) Final Basic Considerations for Approval and Enforcement .............................................. 4–113

(e) Subsequent Use of Court Agreements ............. 4–114

§ 4.2.5 Pretrial Motions ........................................................ 4–114

(a) Generally ......................................................... 4–114

(b) Tenant’s Motions: Motions to Dismiss and Other Motions ........................................... 4–115

§ 4.2.6 Judgments and Executions ........................................ 4–116

(a) Default Judgments; Nonsuit; Dismissal Nisi .................................................................. 4–116

(b) Issuance of and Stays on Executions; Satisfaction ...................................................... 4–118

(c) Levy ................................................................. 4–122

EXHIBIT 4A—Rental Application ....................................................... 4–124

EXHIBIT 4B—Request for Prior Landlord Reference ...................... 4–128

EXHIBIT 4C—Licensee Agreement .................................................... 4–129

EXHIBIT 4D—Tenancy-at-Will ........................................................... 4–131

EXHIBIT 4E—Standard Form Apartment Lease .............................. 4–133

EXHIBIT 4F—Rent and Security Deposit Receipt ............................ 4–137

EXHIBIT 4G—Apartment Condition Statement ............................... 4–140

EXHIBIT 4H—Security Deposit Return Form ................................... 4–141

EXHIBIT 4I—Notice to Quit Terminating Tenancy at Will .............. 4–143

EXHIBIT 4J—Notice to Quit Tenancy at Will with Offer of New Tenancy ...................................................................................... 4–145

EXHIBIT 4K—Notice to Quit for Lease Violation ............................. 4–147

EXHIBIT 4L—Rental Period Notice to Quit ...................................... 4–149

EXHIBIT 4M—Use and Occupancy Letter ........................................ 4–152

EXHIBIT 4N—Summary Process Summons and Complaint ........... 4–153


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EXHIBIT 4O—Housing Court Standing Order 1-01 ........................ 4–155

EXHIBIT 4P—Housing Court Standing Order 1-10 ......................... 4–156

EXHIBIT 4Q—District Court Standing Order 1-11.......................... 4–162

EXHIBIT 4R—MLRI Discovery Booklet* .......................................... 4–167

EXHIBIT 4S—Plaintiff’s Sample Responses to Discovery Requests and Memorandum in Opposition to Defendant’s Motion to Compel ............................................................................................... 4–185

EXHIBIT 4T—Plaintiff’s Sample Motion for Payment of Use and Occupancy and Supporting Affidavit ........................................... 4–225

EXHIBIT 4U—Checklist for Notice Required from Storage Facility Holding Evicted Tenant’s Possessions .................................... 4–228

MCLE, Inc. | 6th Edition 2017 4–1

CHAPTER 4

Residential Landlord-Tenant Practice: Creating and Terminating Residential Tenancies*

Catherine F. Downing, Esq. Law Offices of Catherine F. Downing & Associates, Boston

James M. McCreight, Esq. Greater Boston Legal Services, Boston

Scope Note This chapter addresses the creation and termination of residential tenancies. With respect to the creation of tenancies, the chapter provides guidance on obtaining and evaluating references, credit reports, and criminal histories; dealing with discrimination and disability-related issues; preparing a unit for rental; and working with brokers, as well as the various aspects of negotiating and drafting the terms of a tenancy and the legal requirements for fees and deposits. With respect to termination, the chapter discusses actions for eviction; procedural and substantive defenses, including G.L. c. 239, § 8A; third-party practice; discovery; settlements; pre-trial motions; judgments; and executions.

§ 4.1 CREATING A RESIDENTIAL TENANCY

§ 4.1.1 Introduction

Whether counseling a client prior to the creation of a residential landlord-tenant rela-tionship or after the relationship has gone bad, it is important to have a firm grasp of the issues at the heart of this relationship. These issues will define the rights and re-sponsibilities of each of the parties. This is equally true whether one is representing the landlord or the tenant because, generally, the rights of the landlord are the re-sponsibilities of the tenant and the rights of the tenant are the responsibilities of the landlord. These issues will reoccur throughout the creation, duration, and termination of the relationship, so the attorney should review them carefully with the client.

* Reprinted from chapter 1 and chapter 11 of Residential and Commercial Landlord-Tenant Practice in Massachusetts (MCLE, Inc. 3d ed. 2016) (judicial commentator, the Honorable Timothy F. Sullivan; ethics commentator, Bruce T. Eisenhut, Esq.). Catherine M. Downing authored the material in § 4.1; Catherine M. Downing and James M. McCreight authored the material in § 4.2.

§ 4.1 Massachusetts Basic Practice Manual

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Very often an attorney will not hear from a client until after the relationship has gone sour. However, an attorney may be able to perform some preventative maintenance before that happens, mainly by being aware of the client’s situation. For example, when representing a prospective buyer of a multiunit dwelling, consider discussing the landlord-tenant relationship with the client before the purchase so that he or she will be prepared when it comes time to rent the units.

§ 4.1.2 Tenant Selection and Application Process

(a) Obtaining and Evaluating Prior Landlord References and Credit Reports

The landlord is allowed to request that any prospective tenant fill out a rental applica-tion. A sample rental application is included as Exhibit 4A. The landlord cannot ask for any information from the tenant relating to race, color, religious creed, national origin, sex, sexual orientation, marital status, age, ancestry, or handicap, purely and simply because housing cannot be denied for any of these reasons. 42 U.S.C. § 3602 et seq.; G.L. c. 151B. The landlord can ask for the names of each prospective occu-pant, their income, and prior rental history.

Typically the landlord will also ask a prospective tenant for references from a prior landlord and, in some cases, will obtain a credit history for the tenant from a company such as Equifax or TRW. A word to the wise: Landlords should make all requests for prior landlord references in writing and should follow the same process for each ap-plicant; otherwise, they are opening the door for a claim of discrimination. All re-sponses to requests for such references should likewise be in writing. In the request for references, the landlord should ask the prior landlord for the tenant’s prior rent-paying history, the tenant’s relationship with both the prior landlord and with other tenants, and the reason the tenant is leaving. A sample blank request for prior land-lord reference is included as Exhibit 4B.

There is an alternative source of information about the tenant’s prior rental history: Several companies provide information about prior eviction actions that were filed in the courts. Both credit and eviction history companies charge fees for those services. In both cases the tenant is entitled to find out from these companies what information they are giving out about the tenant and to whom it is provided—such communica-tion generally has to be between the applicant and the company providing such in-formation. In some cases the agreement between the landlord and the company pro-hibits disclosure of any information to the applicant. In addition, the Massachusetts Trial Court has created an online docketing system, open to members of the public, so that landlords or their attorneys can check to see if an eviction action has been commenced against the prospective tenant within the time frame applicable to those records. There is no cost to the landlord; however, the prudent landlord will print out what he or she finds on this website, keeping a copy of the files and providing a copy to the applicant. In addition, it is a good idea to try to confirm whether the case actu-ally involves the potential applicant, by confirming the prior address or by asking the applicant about the matter.

Creating and Terminating Residential Tenancies § 4.1


Judicial Commentary Practitioners should be aware of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692–1692p, and the Fair Credit Reporting Act, 15 U.S.C. §§ 1681–1681x. See Hon. E. George Daher & Harvey Chopp, Landlord and Tenant Law (34 Massachusetts Practice Series) § 21:18 (West 3d ed. 2001 & Supp. 2012).

If the tenant is concerned that these reports might contain erroneous or harmful in-formation, the tenant may want to order a copy of his or her own history and provide a statement or explanation. A tenant has the right to obtain a copy of his or her credit or tenant report, free of charge in certain circumstances, and also has the right to be told the name of anyone who received a copy of the report within the past twelve months. Armed with this information, a tenant can notify the reporting agency if he or she disputes the completeness or accuracy of any information in the file. In re-sponse, the agency must delete the disputed information or conduct a reinvestigation into the disputed information. If the reinvestigation does not resolve the dispute, the tenant has the right to file a written statement setting forth the nature of the dispute, which will be included in the file and in any credit or tenant reports requested in the future. This is significant because it gives the tenant the opportunity to explain his or her side of the story and places landlords on notice of potential problems with the credit or tenant reporting agencies. While the statement allows a tenant to address issues of inaccuracy or incompleteness, a tenant technically is not supposed to offer extenuating circumstances for not paying a debt, such as illness, temporary unem-ployment, accident, or mistake. These rights and responsibilities are contained in the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., which has been held to apply to reports prepared by tenant screening agencies. See Cotto v. Jenney, 721 F. Supp. 5 (D. Mass. 1989).

The landlord should carefully evaluate the information obtained from the histories and the references. The landlord should not be afraid to allow the tenant to explain problems with the credit or eviction history or the references, since it is possible that the problems were caused by exceptional circumstances or the tenant has overcome them. The landlord should apply rational, objective standards to each and every ap-plication to ensure that each applicant is being evaluated on reasonable, nondiscrimi-natory grounds. It is a good idea for a landlord to formulate, in writing and in ad-vance, reasonable criteria for tenant selection and to maintain such criteria in written form. In fact, if the landlord is participating in a program that involves state or federal rental assistance, including tax credit properties or mortgages insured by federal or state agencies, the landlord might be required to have a written tenant selection plan that has been approved by such agencies.

The prudent landlord will insist upon meeting, in person, every person who will oc-cupy the unit. This meeting should not occur until after all the terms of the tenancy have been negotiated and settled, but it should occur prior to signing a written tenan-cy agreement and certainly before allowing any person to occupy the rental unit. The sole purpose of such a meeting is to prevent impostors or “stand-ins” from leasing on behalf of the real occupants. The landlord should make it clear that the only reason for the meeting is so the landlord can actually see and “meet” the people who are



going to be the tenants. The landlord must follow through with this purpose—that is, this meeting cannot be used to refuse to rent to prospective tenants, unless the pro-spective tenants refuse to meet without reasonable justification. The timing of such a meeting is crucial. If a landlord insists upon meeting the prospective occupants at an earlier stage and then refuses to rent to the prospective occupants, the landlord has opened himself or herself to claims of unlawful discrimination if the prospective oc-cupant is a member of a protected class. Again, if the landlord wants to use such a procedure, the landlord should require it of all applicants.

(b) Discrimination and Disability Issues in Renting

A landlord cannot refuse to rent a residential unit for any of the following reasons:

• race, color, national origin, ancestry, or religion;

• sex, sexual orientation, or marital status;

• age (except for minors);

• family composition (except for problems with size of unit);

• source of income (for example, public assistance or rent subsidy); or

• military status.

42 U.S.C. § 3602 et seq.; G.L. c. 151B.

Additionally, the landlord cannot refuse to rent a unit because of the prospective ten-ant’s physical or mental disability. In some cases the landlord may be required to provide a reasonable accommodation to a disabled tenant, such as handicap accessi-ble kitchens and bathrooms or access ramps. What is reasonable? It varies according to the facts, but if the accommodation would be an undue financial hardship or an undue administrative burden for the landlord, it will not be considered reasonable. For a more in-depth discussion of discrimination and reasonable accommodation issues in housing, see chapters 3 and 4 of Residential and Commercial Landlord-Tenant Practice in Massachusetts (MCLE, Inc. 3d ed. 2016).

The landlord cannot refuse to rent a unit to a tenant because the tenant has children and the premises contain lead paint. See G.L. c. 186, § 16; G.L. c. 111, § 197. In-stead, the landlord will be required to abate the condition.

(c) Issues with Regard to Applicants to Public Housing and Federally Subsidized Housing

Chapter 14 of Residential and Commercial Landlord-Tenant Practice in Massachu-setts (MCLE, Inc. 3d ed. 2016) contains an in-depth discussion regarding the types of programs for applicants for assisted housing, as well as a discussion as to the appli-cation process for that housing. It should be kept in mind that private landlords might have to process a request for housing from an applicant who receives the benefit of



rental assistance, and the prudent counselor advising any such landlord would do well to become familiar with the requirements for such housing.

The Violence Against Women Act (VAWA) was developed and passed originally in 1994 as a result of extensive grassroots efforts in the early 1990s, with professionals from the victim services field, law enforcement agencies, prosecutors’ offices, the courts, and the private bar urging Congress to adopt significant legislation to address domestic violence. Since its original passage, VAWA’s focus has expanded to ad-dress—in addition to domestic violence—dating violence, sexual assault, and stalk-ing. It funds services to protect adult, teen, and child victims of these crimes, and supports training on these issues, to ensure consistent responses across the country.

In 2008, the U.S. Department of Housing and Urban Development (HUD) promul-gated regulations that apply to any development that receives Section 8 funding, in-cluding new construction; Section 202 programs with Section 8 assistance; and state agency–financed developments. These regulations impact the behavior of the land-lord throughout the process of obtaining, maintaining, and terminating tenancies, so it is important for all employees of the management company to understand what they are required to do under VAWA.

Subsequently, HUD issued a clarification of its regulations to verify that, despite the name of the statute, the law’s protections apply equally to men and women. In this notice, dated October 30, 2009, HUD also indicated that managing agents must im-plement the provisions of the act immediately, if they have not already done so.

Generally speaking, VAWA (along with the underlying regulations) affords protec-tions in both the application process and the eviction process to certain families or persons applying for or receiving assistance under Section 8, including

• victims of domestic violence,

• victims of dating violence, and

• victims of stalking.

To assist the managing agent in understanding the scope of these protections, the regulations provide a number of definitions, including the following:

Dating violence means violence committed by a person:

(1) Who is or has been in a social relationship of a romantic or intimate nature with the victim; and

(2) Where the existence of such a relationship shall be de-termined based on a consideration of the following factors:

(i) The length of the relationship;

(ii) The type of relationship; and



(iii) The frequency of interaction between the persons in-volved in the relationship.

Domestic violence includes felony or misdemeanor crimes of violence committed by a current or former spouse of the vic-tim, by a person with whom the victim shares a child in com-mon, by a person who is cohabitating with or has cohabitated with the victim as a spouse, by a person similarly situated to a spouse of the victim under the domestic or family violence laws of the jurisdiction receiving grant monies, or by any other person against an adult or youth victim who is protected from that person's acts under the domestic or family violence laws of the jurisdiction.

. . . .

Stalking means:

(1)(i) To follow, pursue, or repeatedly commit acts with the intent to kill, injure, harass, or intimidate another person; or

(ii) To place under surveillance with the intent to kill, in-jure, harass, or intimidate another person; and

(2) In the course of, or as a result of, such following, pur-suit, surveillance, or repeatedly committed acts, to place a per-son in reasonable fear of the death of, or serious bodily injury to, or to cause substantial emotional harm to

(i) That person,

(ii) A member of the immediate family of that person, or

(iii) The spouse or intimate partner of that person.

24 C.F.R. § 5.2003.

The regulations explicitly state that a landlord cannot deny any application based on the applicant’s status as a victim of domestic violence, dating violence, or stalking if the applicant otherwise meets the qualifications for admission. Tenant selection plans should be updated to incorporate the protections in the VAWA regulations. In addi-tion, managers are encouraged to establish policies that support or assist victims of domestic violence, dating violence, or stalking.

The regulations require that the manager provide all new tenants with a lease adden-dum that contains the VAWA requirements together with the model lease or occupancy agreement. In addition, if they have not already done so, managers must send exist-ing tenants a letter together with the VAWA lease addendum. In that letter, the man-ager must explain that the lease addendum contains important information regarding



protections for victims of domestic violence, dating violence, or stalking, and inform the tenant that he or she can either accept the modifications to the lease by signing the addendum or choose to move, and that any such response is due within thirty days. The lease addendum must be signed by every adult member of the household.

VAWA has been extended several times, most recently in 2013. The act now covers the Section 202 and Section 811 supportive housing programs, Housing Opportuni-ties for Persons with AIDS (HOPWA), HOME Investment Partnerships, homeless programs under the McKinney-Vento Act, and FHA mortgage insurance for Section 221(d)(3) and Section 236 of the National Housing Act. In addition, the Low Income Housing Tax Credit Program and the rural housing assistance programs administered outside of HUD are covered. HUD will develop new verification and confidentiality forms, similar to those already in use, for the newly covered programs.

VAWA 2013 revises VAWA 2005 to do the following:

• Cover victims of sexual assault, i.e., any nonconsensual sexual act proscribed by federal or state law, including when the victim lacks capacity to consent. This inclusion is immediately effective and does not require further rule making.

• Replace the term “immediate family member” with “affiliated individual” to refer to other victims associated with the tenant who are protected under the law.

• Require the owner or public housing agency (PHA), if the lease is bifurcated to remove a tenant or lawful occupant, to provide any remaining occupant with the opportunity to establish eligibility for the covered housing program. If eli-gibility cannot be established, the owner or PHA must give the occupant a rea-sonable time to find new housing or establish eligibility under another covered housing program. HUD will issue regulations as to what constitutes a reasona-ble time.

• Require the victim of domestic violence, dating violence, sexual assault, or stalking to provide the name of the perpetrator only if it is safe to do so and the name is known to the victim.

• Permit use of documents signed by a mental health professional verifying that the victim has sought assistance relating to domestic violence, dating violence, sexual assault, or stalking, or the effects of such actions when the professional believes that the requirements of VAWA 2013 are met. An administrative agen-cy’s records are an acceptable form of verification.

• Require HUD, rather than the individual owner or PHA, to develop a standard notification form advising applicants and tenants of their rights under VAWA 2013. This notice is to be provided at the time of granting or denial of admis-sion, as well as with any notice of eviction or termination of assistance. It must be provided in multiple languages, consistent with HUD’s Limited English Proficiency guidance under Executive Order No. 13166, 65 Fed. Reg. 50121 (Aug. 10, 2000).

• Require HUD to adopt a model emergency transfer plan for use by PHAs, owners, managers, or other housing providers participating in HUD-covered



programs. This would allow victims to transfer to another available and safe dwelling under a covered housing program and incorporate reasonable confi-dentiality measures. HUD will also develop policies and procedures for vic-tims of abuse to receive, subject to the availability of tenant protection vouch-ers, mobile Section 8 assistance.

Note that, under a Massachusetts statute adopted in 2013, there are separate protec-tions for survivors of rape, sexual assault, stalking, and domestic abuse that apply to all rental housing rather than only to federal housing covered by VAWA 2005 and 2013. The state protections, among other things, apply to lock changes and early lease termination. See chapter 10 of Residential and Commercial Landlord-Tenant Practice in Massachusetts (MCLE, Inc. 3d ed. 2016).

(d) Obtaining and Evaluating Information Under the Criminal Offender Record Information Act

In today’s increasingly mobile society, the landlord must take extra steps to ensure that an applicant does not have an unsavory past that might repeat itself at the new address. One way of determining this is to try to find out if the applicant has been convicted of any crimes that might show a propensity to violence or mayhem. Al-though the trend in the law has been to allow increasing access to the prior records of applicants, caution must be exercised in obtaining, using, and disseminating such information, as each of the laws that provide for access also provide penalties for the misuse of that information.

When the applicant fills out the application, the landlord should have him or her sign a release allowing the landlord to obtain not only the applicant’s credit history and prior landlord references but also any prior court history. Such a release should be in plain, easy-to-read language and inform the applicant that the information obtained will be used in evaluating the application. Because court records regarding pending actions are in fact public records, they are accessible to the public, provided there has been no court order or statute that prohibits their release.

The same agencies that provide checks regarding eviction actions in the records at every Housing, District, and Superior Court also check those courts for records of criminal activity. When an agency encounters such records, it typically notifies both the applicant and the landlord that there is a matter that needs to be resolved. This may indicate that the agency has discovered records of a prior criminal charge. In this notification, the agency will invite the applicant to contact the agency directly to clear up the matter. The reason for this is that sometimes the court records them-selves, especially in criminal cases, do not fully reflect the ultimate outcome of a case and the agency has a legitimate concern about potential liability for the improper use of this information.

What these record-checking agencies do not cover are local police records—that is, those complaints lodged that have either not yet reached the court phase or never will reach the court phase, where they would become a matter of public record unless otherwise ordered by the court or required by statute. Of the information a landlord



can obtain, this sort is the most problematic. There is a statute, commonly referred to as the Criminal Offender Record Information Systems Act (CORI) (G.L. c. 6, §§ 167–178B) (as amended by 2010 Mass. Acts c. 256, §§ 2–37; most amended pro-visions effective May 4, 2012), that imposes limitations on the information a police department can produce regarding pending matters. However, the courts have held that if the document contains protected information, the record keeper must delete this information and provide the remaining information requested. Previously, there were limitations on who could ask for this information, but in 1990 the statute was changed to allow the public access to this information for certain periods of time, depending on the gravity of the crime.

Unfortunately there is little consistency between police departments as to the en-forcement of these limitations. In some cases police departments will give the land-lord the entire report, while in others they will give the landlord the report with the identifying information on the perpetrator blacked out. In most cases they will not give the landlord the information at all unless the landlord has a subpoena to compel them to turn this information over during the landlord’s own court action. If the po-lice department seems reluctant to provide this information, the landlord can ask the department to black out the identifying information so that the landlord has at least some of the facts to evaluate.

For units receiving rental assistance through federal or state programs, the tenant selection plan must contain screening criteria that include standards for denying ad-mission to those persons who have engaged in drug-related or criminal activity. In addition, the revised regulations allow the owner of such property to adopt standards that deny admission on the basis of a prior eviction for drug-related criminal activity or on the basis that a household member is subject to a state sex offender lifetime registration requirement. See 24 C.F.R. §§ 5.850–.861.

Practice Note Attorneys who represent such sites should examine the standards set out in the federal regulations as well as the requirements detailed in De-partment of Housing and Urban Development, HUD Handbook 4350.3 REV-1: Occupancy Requirements of Subsidized Multifamily Housing Programs (May 2003) in updating their clients’ tenant selection criteria.

If the landlord does obtain this information to evaluate prospective applicants, it should be used with a great deal of caution unless the landlord becomes aware, through checking the court records, that the matter has been put into a court process and there is some type of verifiable outcome. The landlord can open himself or her-self up to liability by relying on incorrect or out-of-date information.

In carefully evaluating the information obtained from all these sources, the landlord should consider the following:

• whether the crime alleged or proven against the applicant has any connection with the applicant’s ability to abide by the terms of the lease or occupancy agreement (that is, if the activity would reoccur, would there be a threat to the



health, safety, or welfare of other residents, their guests, or employees of the management company?);

• the time that has elapsed since the crime was alleged or proven;

• the likelihood of a reoccurrence;

• the age of the offender at the time the crime was committed and whether there has been a reoccurrence of any other types of criminal activity;

• the circumstances surrounding the criminal activity alleged, i.e., if it concerned a domestic dispute and the relationship is no longer in place; and

• whether there was a penalty imposed and, if so, whether the applicant has fully complied with the penalty.

The cautious landlord should allow the prospective applicant to explain what hap-pened, as it is possible that the incident was caused by exceptional circumstances or a past problem that the applicant has now overcome. The landlord can elicit the facts using the criteria listed above to make a fair and reasonable evaluation. To make sure that there is no potential for miscommunication or misunderstanding, any such communication always should be set up and confirmed in writing. This communica-tion will also give the landlord the opportunity to find out if the charges were dis-missed and, if so, the circumstances of the dismissal, and thus avoid claims that the landlord relied on outdated or improper information.

With regard to past criminal histories of current residents, if the landlord did not pre-viously check their records, it is difficult and most likely illegal to obtain this infor-mation under the CORI, which allows this information to be obtained in connection with an application for residency. Additionally, it is highly unlikely that the landlord could use this information as a valid ground for terminating a tenancy. The only way to use such information as a basis for termination is if the crime occurred during the term of the resident’s occupancy and relates to the development and its occupants. Again, as with any other information obtained, the wisest course is to allow the resi-dent to explain the circumstances through an informal meeting or conference, as this gives the resident the opportunity to explain and the landlord the ability to evaluate whether there is in fact a connection between the allegations and the welfare of the resident population.

(e) Obtaining and Evaluating Information from Sex Offender Registry Records

On October 1, 1996, the Massachusetts legislature put into effect a law establishing a sex offender registry and requiring that a person convicted of certain sexual offenses register with this agency. G.L. c. 6, § 178C et seq. It has been confirmed in its pre-sent incarnation, 1999 Mass. Acts c. 74, § 2, by the Supreme Judicial Court in the case of Roe v. Attorney General, 434 Mass. 418 (2001). The fight has now switched from the constitutionality of sex offender registration per se to whether or not sex offender information can be disseminated using technology such as the Internet.



Since its controversial passage, the law has been amended to change the process for evaluating offenders, but its underlying effect—setting up a registry and requiring persons convicted of certain offenses to register—has not changed. The applicable offenses include the following:

• indecent assault and battery on a child under the age of fourteen,

• indecent assault and battery on a mentally retarded person,

• rape,

• rape of a child under sixteen with force,

• assault with intent to commit rape,

• rape and abuse of a child,

• assault of a child under sixteen with intent to commit rape,

• kidnapping of a child under sixteen,

• open and gross lewdness and lascivious behavior, and

• unnatural and lascivious acts with a child under sixteen.

The registry includes the following information on the offender:

• name and aliases used;

• date and place of birth, sex, race, height, weight, and eye and hair color;

• Social Security number;

• home and work address;

• photographs and set of fingerprints; and

• description of the offense for which the offender was convicted, the city or town where the offense occurred, the date of conviction or adjudication, and the sentence imposed.

The information on the offender is transmitted to the police department not less than thirty days prior to the offender’s release from custody. Within two days from his or her release, the offender is required to register in person at the police department in the city or town where he or she resides. Any person who is on probation or parole as of October 1, 1996 is also required to register in person at the city or town where he or she is residing and the information on that offender is also transmitted to the po-lice department. (This would include offenders who move into the Commonwealth from another state.) Every time the offender moves, he or she must register with the police department in the new city or town within five days of the change of address or, if staying within the same town, he or she must reregister with the police depart-ment at least five days prior to moving. All offenders on probation or parole after October 1, 1996 must register at the police department in person. Each offender must appear once a year in person at the police department to verify that the registration file remains true and accurate. This duty expires twenty years from the date of the



offender’s conviction or release, whichever occurs last, except for persons convicted of more than one offense, in which case the duty lasts for the rest of his or her life.

Any person over the age of eighteen who appears in person at the police department can obtain a report indicating whether an individual identified by name, date of birth, or sufficient personal identifying characteristics is a sex offender, including a listing of the offenses for which the individual was convicted or adjudicated and the dates of such convictions or adjudications. A person can inquire whether any sex offender lives or works within a one-mile radius of a specific residence or business address. The statute requires that the person making the inquiry indicate that the request for information is either for their own personal protection, for the protection of a child under the age of eighteen, or for another person for whom the inquirer has respon-sibility, care, or custody. It would appear that landlords might fall in the latter two categories.

Each offender is given a risk level, between one and three, depending on the risk of reoffense:

• Level 1—a low level of risk;

• Level 2—a moderate level of risk, requiring the police to notify organizations in the community that are likely to encounter the offender, including schools, day-care centers, religious and youth organizations, and sports leagues;

• Level 3—a high level of risk, requiring that the information be transmitted to the Federal Bureau of Investigation as well as to organizations in the commu-nity and individual members of the public likely to encounter the offender.

The information obtained cannot be used to commit a crime or to engage in illegal discrimination against or harassment of an offender, as such misuse in itself will con-stitute a crime. Because using this information may constitute a crime, the infor-mation should be handled with great caution. This statute intersects with the prohibi-tion contained in other statutes regarding discrimination against applicants. If the landlord has a prospective applicant who is a registered sex offender, the landlord should employ the same evaluation process used for any other prior criminal history under the criteria set forth above. Because of the statute’s restrictions on using the sex offender information, the landlord must walk a fine line between the rights of residents and the rights of the offender. This is a relatively new statute and it is not clear where that line should be. An educated guess would seem to indicate that the higher the level of risk assigned to the offender, the stronger the rights of the resi-dents to know. Note, however, that if the offender is classified at Level 3, the police are required to notify the community, which relieves the landlord of any responsibil-ity for notification. In any event, it might be best for the landlord to work with the police, requesting that they provide the appropriate notice to the residents. The stronger the connection between the offense for which the person was convicted and the health, welfare, and safety of members of the community, the more likely it is that the police will take on the responsibility for notification.



The cautious landlord should make sure that the information obtained is the most up-to-date available by communicating with the resident, the police, or the court. It is dangerous to rely on out-of-date information, particularly when there has been no conviction, since it is possible that the charges have been dismissed or dropped. In such a case, the resident could allege that the landlord is trying to harass the resident or has no basis for the action taken. To avoid such liability, the landlord should re-view the information, make sure the information is current and accurate, and make an objective evaluation of the facts involved. The more effort the landlord expends in doing so, the more likely it is that a court will find any action taken to have been fair and reasonable.

Disseminating sex offender information must be done with utmost care. Regarding Level 3 offenders, the police often use cable television channels and local newspa-pers to pass out the required information. The question for the landlord is how to distribute this information, regardless of how the landlord has obtained it, whether from the police or through other channels. If, for example, the information is posted on a community bulletin board, it is advisable that it be placed in a way that mini-mizes the listed person’s opportunity to claim that the information is being used for harassment. A cover could be placed on top of the sheet so that anyone seeking the information will have to lift it to read the posted notice. The cover should contain a disclaimer stating that the information inside was provided by the police, that the landlord has no responsibility for errors or omissions contained in the notice, and a warning that the information obtained cannot be used to commit a crime or to engage in illegal discrimination or harassment of an offender because such misuse in itself will constitute a crime. Perhaps the best course of action is to maintain the infor-mation in a binder in the office and let the residents know that it may be reviewed on request. The landlord should have each resident so requesting sign a statement ac-knowledging that he or she is aware that the statute prohibits the use of the infor-mation to commit a crime or to engage in illegal discrimination or harassment of an offender.

(f) Preparing the Unit for Rental

When the time comes to rent the unit, the landlord needs to take an honest look at the unit and determine whether it is in compliance with the State Sanitary Code. It is a common misconception that the tenant can agree to accept a unit in bad condition (i.e., the old caveat emptor concept). The law requires that the unit be in good condi-tion at the time it is rented. Counsel should take time to become familiar with the requirements of the State Sanitary Code and thoroughly review them with the client. 105 C.M.R. §§ 400, 410. The requirements may seem complicated and hard to un-derstand, but familiarity with them will be worthwhile because the unit’s compliance with those requirements at the inception of the tenancy will limit the amount of dam-ages the tenant will be entitled to for breach of the warranty of habitability. The land-lord is well advised that residential landlords and tenants cannot agree to rent a sub-standard apartment, even for a discounted rate. See Haddad v. Gonzalez, 410 Mass. 855 (1991); Boston Hous. Auth. v. Hemingway, 363 Mass. 184 (1973).



Judicial Commentary The implied warranty of habitability is always part of the bargain. A land-lord cannot nullify the warranty.

Ethics Commentary In preparing a unit for rental, counsel should be familiar with local re-quirements or associate with counsel who is familiar with such require-ments. Mass. R. Prof. C. 1.1. For example, some cities and towns have required preinspection or a certificate of approval whenever there is a vacancy or change in occupancy.

The landlord can request a prerental inspection from the local board of health or in-spectional services department. In some cities, including Boston, a local regulation or ordinance requires such an inspection. The inspector will go through the unit, tell the landlord what needs to be repaired, and issue a certificate of compliance when the work is completed. There is a charge for this inspection, but it is one of the cheapest forms of insurance; such a certificate serves as prima facie evidence that the unit was in compliance with the requirements of the State Sanitary Code at the inception of the tenancy. Each city or town will have a slightly different procedure, and the client should be advised to check with the local board of health or building department about the appropriate procedure.

In 2013, the Boston City Council passed an amendment to the City of Boston Code (CBC 9-1.3) that requires all owners of residential housing units in Boston, including condominium units, to register their housing units with the Inspectional Services Department no later than July 1 of each year, identifying the property by street address and the number of units they own at each address. Exempted from this requirement are units owned or operated by federal, state, or city government and rental units located in dwellings containing six or fewer rental units, one of which is occupied by the owner. All nonexempt units must be inspected once every five years. The owner can request that the Inspectional Services Department conduct the inspection or can engage an “authorized” non–Inspectional Services Department inspector to do so. Annual comprehensive apartment inspections conducted by the Boston Housing Au-thority leased housing programs, the Metropolitan Boston Housing Partnership leased housing program, or other federal, state, or city inspection programs that are accepted by the Inspectional Services Department may be used to satisfy this re-quirement. This ordinance also establishes a procedure for identifying and addressing problem properties within the City of Boston.

Judicial Commentary Many cities and towns require a certificate of occupancy/rental certificate before renting a vacant apartment to a new tenant.

(g) Carbon Monoxide Detectors

In January 2005, Nicole Garofalo died of carbon monoxide poisoning in her Plym-outh home after a deadly amount of this gas accumulated because of a blocked vent in the heating system. Such deaths are particularly common during the winter



months, when snow creates drifts that block exhaust vents from water heaters and furnaces that burn fossil fuel. During these months, windows and doors are usually kept tightly shut to keep out drafts; however, this also allows lethal amounts of car-bon monoxide gas to accumulate in buildings. Because the gas is odorless and color-less, it is difficult to detect. Each year almost 3,000 poisoning cases are reported in Massachusetts. According to the Journal of the American Medical Association, car-bon monoxide is the leading cause of poisoning deaths in the United States.

Nicole’s death galvanized both local and state fire officials to push the legislature for a new law to address such tragedies. The resulting legislation, 2005 Mass. Acts c. 123 (codified in substantial part at G.L. c. 148, § 26F½), was signed into law on November 4, 2005. The law requires the installation of carbon monoxide detectors in residential buildings. These detectors are similar to the smoke detector systems that are required for use in residential settings.

Practice Note As with other laws that were drafted in haste, there are substantial prob-lems with Nicole’s Law, and there are currently efforts to revise it.

According to the most recent information from the Department of Fire Services, the effective dates of compliance are January 1, 2007 for buildings with hardwired equipment and March 31, 2006 for all nonhardwired equipment. The law permits a landlord to request an extension for up to 180 days if he or she intends to equip the building with detectors hardwired into the building’s electrical system or if there are more than 500 residential units owned or managed by the same entity; however, any such request must be made before March 31, 2006.

The law affects all dwelling structures that

• are occupied in whole or in part for residential purposes; and

• have either enclosed parking or equipment such as boilers, furnaces, and hot water heaters that are powered by fossil fuels such as gas, coal, oil, and wood.

Landlords must inspect, maintain, and replace, if necessary, required carbon monox-ide alarms at the beginning of any rental period. For tenants under a lease for a fixed term, this would appear to mean that the landlord can wait until the renewal period of the lease. For tenants-at-will, this would seem to require installation of the detectors by March 31, 2006. (This requirement may be affected by decisions made by the Board of Fire Prevention with regard to the type of system that will be required.) Every affected residential dwelling, building, or structure must be inspected by the fire department upon sale or transfer.

The law permits the Board of Fire Prevention to decide the type of system and instal-lation required. According to the website of the Department of Fire Services, the department is currently drafting regulations that will outline what occupancies need what type of units.



Practice Note One can anticipate that if the applicable regulations require that a build-ing have a hardwired smoke detector system based on its number of units, the regulations will most likely require that the carbon monoxide detectors be hardwired as well.

As with the law governing smoke detectors, the carbon monoxide law is enforced at the city and town level. The local fire department is required to perform an inspection of the building to confirm that detectors have been properly installed and maintained as a prerequisite to any sale or transfer of the property.

Note, however, that the law also allows the local fire department to adopt regulations permitting more frequent inspections. The law allows for a fee for separate or joint inspection of carbon monoxide and smoke detector systems: $50 for single-family dwellings, $100 for two-family dwellings, $150 for three- to five-family dwellings, and $500 for buildings with six or more units. In addition, the law will be enforced like any other violation of the State Sanitary Code, which may mean that the local fire department can file civil or criminal actions in a court with jurisdiction, seeking either orders or fines from the court for failure to comply.

As the law currently stands, the tenant would not be liable for the cost of the installa-tion or maintenance of this system any more than he or she is responsible for the cost of the installation or maintenance of a smoke detector system. Under the terms of most leases or occupancy agreements, however, the tenant can be liable for damaging or tampering with the system.

As noted above, the Massachusetts Department of Public Health is required to adopt and enforce Nicole’s Law as part of the State Sanitary Code. In Massachusetts, every person who lives in residential housing has the right to have an apartment free of defects, in compliance with the State Sanitary Code. The prudent owner or manager will be proactive in making sure that each of his or her units do comply with the min-imal provisions of the code, including making sure that all building systems are in working condition and setting up inspections on a regular basis to catch problems, as well as implementing and maintaining consistent procedures for correcting those problems. There are three reasons for these steps:

• locating and correcting a problem at an early stage lessens the risk of further damage to the property;

• locating and correcting damages will reduce liability to the tenant for claims arising out of defective conditions in the unit and building; and

• the manager may be prosecuted in a criminal action for failure to make re-quired repairs.

Owners or managers may not be aware that the local fire department has the right, under the State Sanitary Code and the fire code, to bring a criminal action in the Housing and District Courts against any person who manages rental housing for



violation of the State Sanitary Code and the fire code, with the possibility for fines and jail sentences. This would include a violation of Nicole’s Law.

Obviously, to avoid this situation, the prudent owner or manager will take steps to make sure that he or she complies with this law, including a plan for installing carbon monoxide detectors similar to the plan he or she adopted when smoke detectors be-came mandatory. The owner or manager should also adopt a plan of action for main-taining and replacing those detectors, including a system for regular inspections.

In addition, during routine maintenance and annual inspections, the owner or manager should make a practice of checking both the smoke and carbon monoxide detectors to make sure that the tenant or the tenant’s guests have not disabled or tampered with them. Any such tampering should be documented and appropriate action taken under the lease or occupancy agreement.

Practice Note The inspection forms used by the owner or manager should be revised to include a line regarding the condition of the detectors. As always, the form should be signed and dated by the person or persons making the inspection and should have a place for the tenant to sign, acknowledging receipt of a copy. Likewise, the lease should include a provision prohibit-ing the tenant or any other person under their control from removing and/or tampering with either the carbon monoxide or smoke detector.

With regard to inspections prior to tenancy, it is likely that cities and towns will adopt regulations requiring an inspection of the detectors prior to occupancy. Even aside from such regulations, however, there are good reasons why the detectors should be inspected prior to the tenant moving in.

First, when the unit is rented to the tenant, the owner or manager is representing that the premises are in compliance with the State Sanitary Code. In court, any certificate issued by the fire department will almost certainly defeat any allegation by the tenant that there were problems with the smoke or carbon monoxide detector at the time that the occupancy started. Why is that important? Because if the condition existed at the inception of the tenancy, the landlord is deemed to have known about it, even if he or she did not have actual knowledge. Since damages are calculated from the time that the landlord knew or should have known about the problem, if the condition ex-isted at the beginning of the tenancy, the damages will start to accrue from that date, not the date on which the landlord actually learned about the defective condition.

Second, the owner or manager has a greater likelihood of winning a case against a destructive tenant for damages caused to the unit if the owner or manager can docu-ment that the damage was not present when the tenant moved in.



(h) Charging the Tenant for Water Usage

Overview

Under a law that took effect in 2005, landlords can in certain circumstances enter into written leases requiring tenants to pay for the cost of water usage exclusively for their apartment if it is measured by a submeter. See G.L. c. 186, § 22, added by 2004 Mass. Acts c. 417; see also 105 C.M.R. § 410.354(D); Memorandum from Paul Halfmann, Assistant Director, Community Sanitation Program, Department of Public Health to Massachusetts Local Boards of Health (May 2, 2005), available at http://www.mass.gov/Eeohhs2/docs/dph/environmental/sanitation/hsg_submeter_memo.doc. This is permitted under the circumstances listed below.

• A licensed plumber has installed a submeter that measures and bills for water going only to the tenant’s apartment and has checked (in general and at the in-ception of the tenancy) to confirm that the submeter is accurate. (Any common area water usage must be separately submetered and cannot be billed to any tenant’s apartment. G.L. c. 186, § 22(c). The owner has a duty to maintain the submetering device in proper condition. 105 C.M.R. § 410.351(B).)

• The landlord has caused low-flow, water-conserving faucets, showerheads, and toilets to be installed in the tenant’s apartment; these devices must be fully functioning at the beginning of every new tenancy. G.L. c. 186, § 22(c), (e). (Costs for this installation cannot be passed on to the tenant. G.L. c. 186, § 22(b); see also 105 C.M.R. §§ 410.020, 410.354(D).)

• The tenancy began after March 16, 2005 and after the submeter and low-flow devices were installed. G.L. c. 186, § 22(d).

• If this is the first time the unit is being submetered, the previous tenant left the apartment voluntarily or was “evicted from the dwelling unit for nonpayment of rent or for breach of lease or noncompliance with a rental agreement,” and the new tenant has not “relocated involuntarily from another dwelling unit in the same building or building complex.” G.L. c. 186, § 22(d).

The landlord must provide a written certification to the local board of health or in-spectional services department confirming that all of the above has been done. G.L. c. 186, § 22(c). The plumbing permit issued by the city or town for a licensed plumber to install fixtures or a submeter must be attached to this certification. The certification is available from the Department of Public Health online at http://www.mass.gov/Eeohhs2/docs/dph/environmental/sanitation/hsg_submeter_form.pdf. Under the attorney general’s landlord-tenant regulations, any violation of the water subme-tering law by the landlord may be a violation of G.L. c. 93A. 940 C.M.R. §§ 3.16(3), 3.17(1)(c)–(d).

A written lease or rental agreement must clearly state that the tenant is responsible for a separate water bill and set forth the billing arrangements in plain language.



Exemptions

Tenants in state public housing are not covered by this law and cannot be charged for water measured by a submeter. G.L. c. 186, § 22(s).

If the tenant is renting a single-family house and has the exclusive use of water, the landlord can bill the tenant directly for water usage without having to install a sub-meter or low-flow conservation devices. However, if the landlord or others have use of water for one or more common areas (for example, for watering the lawn), a sub-meter must be installed to measure the water used exclusively by the tenant, and all other requirements of the law must be met. G.L. c. 186, § 22(p).

Billing

The landlord is responsible for sending the bill for water charges to the tenant. The landlord cannot pass on to the tenant any fees related to submetering, such as fees for taking submeter readings, preparing or collecting bills, or installing, maintaining, or servicing the submeter. G.L. c. 186, § 22(j).

Practice Note The landlord may contract with a separate company to take water sub-meter readings and to prepare, send, and collect bills.

The tenant can be billed for water charges as often as the water company bills the landlord; typically this is every three months. If the parties agree, the lease or written rental agreement may provide for monthly billing. If the landlord bills on a monthly basis, payment is due fifteen days after the bill is mailed to the tenant; if the landlord bills less frequently, the bill is due thirty days after it is mailed. G.L. c. 186, § 22(f). If a tenancy begins in the middle of a billing period for water, on the first day of the tenancy the landlord must mail the tenant the submeter reading for the unit as of that day. The tenant can be billed only for water measured on the submeter after this read-ing. G.L. c. 186, § 22(h). Similarly, if the tenancy ends in the middle of a billing pe-riod for water, the landlord must give the tenant the submeter reading as of the final day of the tenancy along with a final bill for water used since the last prior reading of the submeter. G.L. c. 186, § 22(i).

Each bill must clearly state all charges and all other relevant information, including the following:

• the current submeter reading and the date it was done,

• the previous submeter reading and the date it was done,

• the amount of water consumed since the last reading,

• how much the tenant is being charged for each unit of water,

• the total charge, and

• the payment due date.



G.L. c. 186, § 22(f). The cost per unit of water consumption is determined by taking the total amount of any bill or invoice the water company provided to the landlord—including the customer service charge and taxes, but excluding any interest for late payment, penalty fees, or other discretionary assessments or charges—and dividing it by the total amount of water consumption for the entire premises. G.L. c. 186, § 22(g).

Nonpayment

The landlord may not terminate water service based on the tenant’s failure to pay the water bill. G.L. c. 186, § 22(l); 105 C.M.R. § 410.180. However, the landlord may consider the nonpayment to be a material breach of the rental agreement and start eviction proceedings. The tenant is given the right to cure nonpayment of the water bill by payment at any time prior to a court hearing on the eviction. G.L. c. 186, § 22(f). The landlord may also deduct unpaid water bills from the tenant’s security deposit when the tenant vacates the apartment. G.L. c. 186, § 22(p).

Testing the Submeter

The landlord pays for the cost of testing the submeter. The person testing the subme-ter—who cannot have any relationship, financial or otherwise, with the landlord—determines the amount of water that was improperly measured by the submeter in the current billing period and any prior billing periods. If the submeter is measuring more water than is being used by the tenant’s apartment, the landlord must install a new submeter and pay for the cost of the test. The landlord must then calculate the amount the tenant was overcharged and either reduce the tenant’s current bill or give the tenant a refund. However, if the testing stems from a complaint by the tenant, and the submeter is found to be accurate, the tenant can be required to pay for the cost of testing, which may be added to the next water bill if it is not otherwise paid by the tenant. G.L. c. 186, § 22(n). Tenants have a right of access to the submeter to ensure it is operating accurately. 105 C.M.R. § 410.354(E).

Leaks

The tenant should request that the landlord repair any water leaks in faucets, shower-heads, and toilets, as well as in any pipes or parts of the plumbing. If the landlord does not respond to the request in a timely manner, the tenant has the right to with-hold rent or the water bill (or a portion of either) until the repair is completed. The tenant also has the right to make the repair and deduct the cost from rent, provided that the provisions of the repair-and-deduct law (G.L. c. 111, § 127L) are followed. G.L. c. 186, § 22(m). If there is a leak, the law requires the landlord to determine, as accurately as possible, how much water leaked by consulting with a licensed plumber and reviewing billing records. The landlord is then required to reduce the tenant’s water bill or give a refund for the overcharge from the date the landlord was notified about the leak. G.L. c. 186, § 22(o).



§ 4.1.3 Working with Brokers

(a) Agreements

In a good economy or a tight rental market, it is not uncommon for landlords or ten-ants to employ brokers to help them rent apartments. A landlord who contracts with a broker to rent a unit should have a contract in writing. The written contract should explicitly list the steps the broker can and cannot take on behalf of the owner and the terms and conditions under which the landlord or the tenant is responsible for paying the broker a commission for renting the unit. The prudent landlord should not allow the broker to have the final word on approving a tenant because the broker’s main interest will be in obtaining the commission, not necessarily in locating a tenant who is willing or able to comply with the requirements of the tenancy.

Ethics Commentary Many lawyers are real estate brokers, since for a Massachusetts attor-ney in good standing, getting a broker license is virtually automatic with appropriate bonding. Accordingly, counsel may be tempted to offer bro-kerage services to an existing client. However, such is usually not in the best interest of the client, and wearing the dual hat is fraught with ethical pitfalls and traps. At a minimum (see below), entering into a listing agreement with a client requires certain written disclosures and consent, an opportunity to consult with independent counsel, and fair terms. See Mass. R. Prof. C. 1.8(a) (conflict of interest, prohibited transactions); In re Lake, 428 Mass. 440 (1998); 14 Mass. Att’y Disc. Rep. 418 (1998). For a particularly egregious example of an attorney who benefited him-self personally in his role as a real estate broker at the expense of his seller clients, see In re Lupo, 447 Mass. 345 (2006).

In May 2012, the Real Estate Bar Association for Massachusetts (REBA) adopted Ethical Standard No. 4, which basically says that a lawyer may not ethically act as a real estate broker and as an attorney to any party in the same real estate transaction. This standard appears to apply no mat-ter whether the lawyer is representing the seller or the buyer, the trans-action is commercial or residential, or the transaction is standard or non-standard; how sophisticated the parties are; or whether the broker is a seller’s broker or a buyer’s broker. In other words, informed consent is deemed impossible in all situations. The rationale is that the lawyer’s in-terest in the commission outweighs everything else. The Board of Bar Overseers is not bound by this opinion, and it is unclear whether the Board would deem written consent inadequate in all cases.

(b) Standards

As the broker will be considered the landlord’s agent, the landlord should be aware that he or she might be bound by representations made by the broker, including such items as whether parking is included with the rental or whether the tenant can use the basement for storage. The landlord should give the broker a written list of the amenities



that are included with the unit and require the broker to provide a copy to prospective applicants. In addition, the landlord should review and approve any listing for the unit, whether in a newspaper or over the Internet. The landlord should make sure that the broker is licensed by the Massachusetts Board of Registration of Real Estate Brokers and Salespersons and check that the broker’s license is in good standing. Additionally, the landlord should check with the complaint unit of the Board of Reg-istration to learn the broker’s complaint history.

(c) Application Fees

The written agreement between the landlord and the broker should detail who is enti-tled to fees and under what conditions such fees are due and payable. It should be made explicitly clear what fees have been received from the tenant and for what ser-vices they were received. Failure to do so may place the landlord in violation of the State Security Deposit Statute, G.L. c. 186, § 15B.

Management companies should take special note of the fact that unless a member of the company’s staff is a licensed broker, it may not be lawful to charge an application fee, including “processing” fees, particularly if such fees are nonrefundable. With regard to the charges for obtaining credit and tenant reports, the prudent landlord will treat such charges as the cost of doing business and will factor them into the rent that is charged for the unit as, again, charging such costs will run afoul of G.L. c. 186, § 15B.

§ 4.1.4 Evaluation of Landlord

(a) Obtaining Information from Board of Health or Inspectional Services

A tenant can check with the local board of health or inspectional services department to see if there have been any complaints about the landlord, such as a failure to ob-tain permits or a failure to fix problems in the unit or building. Such records are open to the public. In some cases the records are not easily accessible due to a lack of in-dexing on the part of the Board of Health, but generally such records can provide invaluable information about a particular landlord’s track record. It is worthwhile to ask whether the inspector assigned to the city, town, or area has any knowledge of the landlord. In addition, at those District and Housing Courts that are computerized, the tenant can go to the clerk’s office and see if the landlord has been the subject of claims based on failure to maintain the unit.

Prior to renting an apartment, a tenant should always thoroughly inspect both the interior of the unit and the common areas for bad conditions. Undoubtedly, every apartment will need minor repairs, but tenants should be on the lookout for signifi-cant problems that might interfere with the tenancy. A tenant should be encouraged to search for signs of defects that normally might not become apparent until after the tenant has moved in. For example, the tenant should open drawers and cabinets to check for rodent droppings or evidence of vermin infestation. Does the toilet work properly when flushed? Is the water pressure in the faucets and shower adequate or is



it a mere trickle? Conditions that are deemed to endanger or impair health or safety are listed in 105 C.M.R. § 410.750; each item so listed, therefore, most likely consti-tutes a material breach of the warranty of habitability.

Judicial Commentary Many cities and towns require a certificate of occupancy/rental certificate before renting a vacant apartment to a new tenant.

(b) Interviewing Former and Current Residents

The prospective tenant can talk to other tenants in the building and ask them about how quickly and completely the landlord responds to problems and whether he or she deals with the tenants fairly and honestly. If the landlord seems annoyed or upset that the applicant wants to talk to other tenants, this is a good sign that there might have been problems in the past. The tenant can find out why the prior tenant left, either by asking the landlord or by asking people in the neighborhood.

§ 4.1.5 Negotiating and Drafting the Terms of the Tenancy

(a) Types of Tenancy

There are basically two types of tenancies that are created by an agreement between the landlord and the tenant: under a lease and as a tenant-at-will. (For a discussion of tenancies created by regulation, see chapter 14 of Residential and Commercial Landlord-Tenant Practice in Massachusetts (MCLE, Inc. 3d ed. 2016).) A tenancy-at-will can be created either in writing or by the actions of the landlord and tenant, such as the landlord or the landlord’s agent accepting money from the tenant. The basic elements of contract law are applicable to the creation of a tenancy because what transpires between the parties creates a contract. In other words, both parties have to agree on the essential terms of the contract, including the amount of rent to be charged or paid, the term of the tenancy, and what items are or are not included in the tenancy. Such terms cannot be modified or changed without the consent of both parties. It is a common misconception, particularly among landlords, that the rent can be increased by unilateral action on the landlord’s part, such as giving a rent increase notice. It cannot. As with any other type of contract, the tenant must agree to accept the change, either by express agreement or by action consistent with consent, such as paying the increase without protest.

The biggest differences between the two types of tenancies are the following:

• a lease is for a fixed term, usually a year, while a tenancy-at-will is from month to month;

• a lease can be terminated during the term of the lease only for reasons listed in that document, whereas a tenancy-at-will can be terminated without any rea-son; and



• the rent for a lease is fixed for the term of the lease, except where the lease it-self allows for an increase, whereas the landlord can increase the rent for a tenant-at-will upon giving notice one rental period in advance.

It is another common misconception that leases are better for landlords and tenancies-at-will are better for tenants. Which form is better will depend on the needs of each party for stability, predictability, and flexibility, since the terms and conditions of either a lease or a tenancy-at-will can be negotiated between the landlord and the tenant. However, for any unit that receives a subsidy, there must be a lease for at least a one-year period.

One other type of tenancy relationship is a license, but it does not rise to the level of a landlord-tenant relationship. Licensee relationships often arise in the situation of a resident manager or maintenance worker. In such a case, both parties are well ad-vised to have a clearly worded licensee agreement that details not only the work expected of the resident, but also under what conditions the relationship can be ter-minated. A single justice of the Appeals Court, in Beacon Park Associates v. Corbett, No. 96-J-693 (Mass. App. Ct. Oct. 25, 1996) (Laurence, J.), held that where an un-ambiguous agreement clearly created only a license, not a landlord-tenant relation-ship, the license could be revoked after termination of the employment relationship and possession regained through injunctive action as the former license holder be-came a trespasser.

Again, for those units that receive federal or some types of state rental assistance, the regulations allow the resident to request the assistance of a live-in aide. Under the federal regulations, such a person is defined as a person who resides with one or more elderly persons, near-elderly persons, or persons with disabilities, and who

• is determined to be essential to the care and well-being of the persons;

• is not obligated for the support of the persons; and

• would not be living in the unit except to provide the necessary supportive services.

The owner, in such a case, is allowed to have the resident sign a lease addendum re-lating to the presence of the live-in aide. The live-in aide is not, by definition, a ten-ant—rather, it would seem that such a person would also be a licensee and his or her behavior should likewise be governed by an agreement of the parties. A form licen-see agreement is included as Exhibit 4C.

Judicial Commentary Absent a specific justification, the courts can declare even an unambigu-ous agreement that clearly created only a license to be null and void, where the landlord is merely seeking to avoid the creation of a tenancy. Such a license can be held to be unconscionable.

Finally, there is another type of tenancy, created not by the mutual consent of the parties, but rather by the expiration of the tenancy, either by termination by the land-lord or tenant or by expiration of its terms. Such a tenancy is called a tenancy-at-



sufferance. A tenant-at-sufferance once had the right to occupy the unit, but the right has since either expired or been terminated. However, the tenant-at-sufferance still has the right to occupy a unit that is in compliance with the State Sanitary Code. See Hodge v. Klug, 33 Mass. App. Ct. 746 (1992). The tenant-at-sufferance does not pay rent, which is payable in advance; rather, he or she pays use and occupancy, which accrues in arrears on a day-to-day basis. The tenant-at-sufferance is in residence at the “sufferance” of the landlord. He or she is not a trespasser since at one time he or she had the right to be there.

Judicial Commentary See Hon. E. George Daher & Harvey Chopp, Landlord and Tenant Law (33 Massachusetts Practice Series) (West 3d ed. 2000 & Supp. 2012), for a full range of occupancy agreements (Chapter 9) and a fuller expla-nation of tenancies-at-sufferance (§§ 3:11–3:14).

Ethics Commentary So as not to assist in illegal conduct, counsel representing a landlord should explain that a tenant-at-sufferance is entitled to due process of law and, in particular, the procedural protections afforded in the summary process statute. A tenant-at-sufferance is not a trespasser, and a land-lord may not use self-help or the criminal process in any effort to evict. See G.L. c. 266, § 120; G.L. c. 184, § 18; G.L. c. 186, § 14; Hodge v. Klug, 33 Mass. App. Ct. 746 (1992).

(b) Terms of the Tenancy

All leases, and some tenancy-at-will agreements, are in writing. To be valid, a lease must contain the amount of rent due and the date on which the tenancy ends, al-though some leases may be self-extending at the end of a fixed term and still be valid. These are the minimum requirements. The attorney general’s regulations at 940 C.M.R. § 3.17(3)(b) state that it is an unfair and deceptive practice for a written rental agreement to fail to contain the following information (stated fully and conspicuously, in simple and readily understandable language):

• the name, addresses, and telephone numbers of the owner and any other person who is responsible for maintaining the property;

• the name, address, and telephone number of the person authorized to receive notices and to accept service of process; and

• the amount of the security deposit, if any, and the landlord’s legal obligations in connection with the security deposit.

If the parties wish to enter into a tenancy-at-will, the terms of the parties’ agreement should be reduced to writing to eliminate any later confusion. There are many differ-ent types of leases, some of which can be purchased at a legal stationery store, in-cluding the ones prepared by the Greater Boston Real Estate Board or Rental Hous-ing Association. A sample written tenancy-at-will agreement and a sample lease from this organization are included as Exhibits 4D and 4E. However, care must be used in



drafting or adapting any lease to make sure it does not contain any clauses that are illegal or do not clearly state the agreement between the landlord and the tenant. Every promise, every compromise, and every representation made by either party should be written down and signed by both parties and copies given to every party within thirty days of signing. See G.L. c. 186, § 15D.

Beginning September 1, 1995, all new tenants must receive a tenant lead law notifi-cation, as well as copies of any lead inspection report or risk assessment report, letter of compliance, or letter of interim control. G.L. c. 111, § 197A(d). For tenancies in existence as of that date, landlords were required to give such notice on or before December 1, 1996. For new tenancies created after that date, the landlord must give copies of the required documents to the tenant upon the creation of the tenancy.

Length of Tenancy

A lease is for a fixed term, which can be a period of months, a year, or a number of years. The beginning and end of such a fixed term should be clearly and unambigu-ously stated in the document. One form that should be viewed with a great deal of caution is the self-extending lease, which provides that the tenancy will go on ad infinitum, unless the landlord takes certain specified actions to either terminate the tenancy or not renew it. Such forms usually contain very strict limitations on the landlord’s ability to end the tenancy and generally should be avoided.

Tenancies-at-will are not for fixed terms, but continue until either the landlord or the tenant terminates the tenancy, either by formal notification or by action. The required termination period is determined by the frequency of rental payments—that is, if the rent is payable every month, then either the landlord or the tenant can terminate the relationship by giving a thirty-day notice. If the tenant pays rent on a less frequent basis—for example, once every six months—then the termination period will be equal to that period. See G.L. c. 186, § 12.

Due Date of Rent

The written lease or rental agreement should specify on what date the rent is due. In most cases the rent will be due on the first of the month, although there is nothing to prevent the parties from agreeing to a different date. The due date can be established by the practice of the parties, so that if, at the inception of the tenancy, the landlord accepted rent from the tenant without protest or reservation on a date other than the first, the tenant can argue that the due date is the day of the month the landlord ac-cepted the rent. In drafting, the scrivener should make sure that the due date is clear and that if, for whatever reason, the landlord does accept monies on a date other than the specified due date, this payment is noted as being accepted for a limited period, without affecting the due date.

Prohibited Lease Terms

The attorney general’s regulations, 940 C.M.R. § 3.17, declare the following agree-ments as unfair and deceptive practices if contained in a tenancy agreement:



• an agreement that makes the tenant responsible for making all repairs (al-though it is permissible to make the tenant responsible for the cost of repairs caused by negligence or intentional acts beyond normal wear and tear);

• an agreement that the tenant will not contest any lawsuit brought by the landlord;

• an agreement that the tenant will pay a penalty for paying rent late, unless the late payment is in excess of thirty days after the due date, see also G.L. c. 186, § 15B; the Appeals Court, in a recent case of first impression, Commonwealth v. Chatham Development Co., 49 Mass. App. Ct. 525 (2000), held that a re-quirement that the tenant be responsible for paying the costs of the service of a notice to quit violates the provisions of this part of the statute; it is also argua-ble that an agreement to reduce rent upon prompt payment might constitute such an unlawful penalty;

• an agreement that the landlord may enter the unit for reasons other than to re-pair, to inspect, to show the apartment to prospective tenants, under a court or-der, or to confirm that the unit is abandoned, see also G.L. c. 186, § 15B;

• an agreement that the landlord may seize or hold property of the tenant or evict the tenant without process of law;

• an agreement by the tenant that the landlord is not liable for negligent or inten-tional acts causing harm to the tenant or for breach of contract; and

• an agreement by the tenant to waive the right to a jury trial or to appeal a court decision (applicable to subsidized units).

These clauses are illegal and, at a minimum, unenforceable. Their presence may pro-vide the basis for a claim that the entire lease is void.

Judicial Commentary Under the Consumer Protection Act, an act or practice is deceptive if it possesses a tendency to deceive. An illegal clause can subject the land-lord to the penalties of G.L. c. 93A. But cf. Lord v. Commercial Union Ins. Co., 60 Mass. App. Ct. 309, 321–22 (2004) (plaintiff must show ac-tual injury or loss in order to be eligible for attorney fees under G.L. c. 93A). Though the Supreme Judicial Court criticized Lord in Aspinall v. Philip Morris Cos., 442 Mass. 381, 401–02 (2004), it seems to have adopted this viewpoint in Hershenow v. Enterprise Rent-A-Car Co. of Boston, 445 Mass. 790, 798–01 (2006). But see also Iannacchino v. Ford Motor Co., 451 Mass. 623, 629–31 (2008) (finding that economic loss associated with purchasing a defective product may constitute an actual injury or loss for purposes of Chapter 93A).

Utilities

Prior to the creation of the tenancy, the landlord and tenant should discuss the issue of utilities, including responsibility for paying the cost of heat, fuel to heat the hot water, gas, or electricity for the unit. Under the State Sanitary Code, the tenant’s agreement to pay for utilities must be included in the written lease and the utilities



must be separately metered, not only for each unit, but also separately from the common area utilities. See 105 C.M.R. §§ 410.190, 410.201, 410.354. Until recently the controlling case in this area was Young v. Patukonis, 24 Mass. App. Ct. 907 (1987), which held that even though the tenant had orally agreed to pay for the utili-ties, failure to include this agreement in a “written letting agreement” was a violation of the State Sanitary Code and therefore gave rise to a claim under G.L. c. 93A. Con-sequently, the landlord was required to reimburse the tenant for the cost of the utili-ties. However, in Poncz v. Loftin, 34 Mass. App. Ct. 909 (1993), the Appeals Court held that failure to reduce the oral agreement to writing, standing alone, did not con-stitute a breach of the warranty of habitability. As a result, the tenant would be enti-tled to only minimal damages under G.L. c. 93A unless the tenant could show one of the following:

• the landlord failed to provide adequate heating facilities,

• the arrangement had a negative impact on the use and enjoyment of the premises,

• the tenant objected to the arrangement during the term of the tenancy,

• the rent plus the utilities exceeded the fair rental value of the premises, or

• there was a meter violation.

Still, counsel should advise clients to make sure that the agreement is reduced to writing and that the unit is separately metered.

Restrictions on Tenant Behavior

In addition to the negotiated terms set out above, the landlord should explicitly spell out in the agreement the parties’ position on each of the following subjects.

Pets

Are pets allowed? If so, what type (e.g., cats, dogs, reptiles, fish) and how many? Under what circumstances must the tenant get rid of the pet? Can the pet be re-placed? Keep in mind that the ability to restrict pets may be limited by laws relating to discrimination or local regulation, including the Boston regulation, commonly referred to as the “Good Boy” ordinance, which allows elderly residents in certain types of housing to keep pets. In addition, for developments that receive federal rental assistance and are for the elderly and disabled residents, the owner may not prohibit the resident from having common household pets, although the owner may adopt reasonable regulations regarding the ownership of such pets. See 24 C.F.R. § 5, subpt. C.

In 2012, the General Court passed a new animal control law (2012 Mass. Acts c. 193), which went into effect on November 1, 2012. The law changed statutes regu-lating the appointment and training of animal control officers, dog licensing, com-mercial sales of dogs and cats, vaccinations, owner responsibilities, definitions, the establishment of the Homeless Animal Prevention and Care Fund, and tax exemp-tions for donations to the fund. One of the laws changed was G.L. c. 140, § 157,



which provides authority and procedures for cities and towns to establish a hearing authority to evaluate complaints regarding dogs in that city or town, and further pro-vides that any person may file a complaint with the hearing authority alleging that a particular dog is a nuisance dog or a dangerous dog.

The following definitions found in G.L. c. 140, § 136A apply to Section 157:

• “hearing authority”—the selectmen of a town, mayor of a city, the officer in charge of the animal commission, the chief or commissioner of a police de-partment, the chief or commissioner’s designee or the person charged with the responsibility of handling dog complaints in a town or city;

• “dangerous dog”—a dog that either

– without justification, attacks a person or domestic animal causing physical injury or death; or

– behaves in a manner that a reasonable person would believe poses an unjus-tified imminent threat of physical injury or death to a person or to a domes-tic or owned animal;

• “nuisance dog”—a dog that

– by excessive barking or other disturbance, is a source of annoyance to a sick person residing in the vicinity;

– by excessive barking, causing damage or other interference, a reasonable person would find such behavior disruptive to one’s quiet and peaceful en-joyment; or

– has threatened or attacked livestock, a domestic animal, or a person, but such threat or attack was not a grossly disproportionate reaction under all the circumstances.

G.L. c. 140, § 136A. Section 157 states that no dog shall be deemed dangerous

• solely based on growling or barking or solely growling and barking;

• based on the breed of the dog; or

• if the dog was reacting to another animal or to a person and the dog’s reaction was not grossly disproportionate to certain circumstances, including the following:

– the dog was protecting or defending itself, its offspring, another domestic animal, or a person from attack or assault;

– the person who was attacked or threatened by the dog was committing a crime upon the person or property of the owner or keeper of the dog;

– the person attacked or threatened by the dog was engaged in teasing, tor-menting, battering, assaulting, injuring, or otherwise provoking the dog; or

– at the time of the attack or threat, the person or animal that was attacked or threatened by the dog had breached an enclosure or structure in which the



dog was kept apart from the public and such person or animal was not au-thorized by the owner of the premises to be within such enclosure.

G.L. c. 140, § 157.

Also, some cities or towns, such as Boston, have adopted regulations or ordinances that restrict the ownership of certain types of dog breeds, such as pit bull terriers, includ-ing requiring public notification of the presence of any such dog on the premises.

Attorneys representing landlords should also be aware of the holding in Nutt v. Flo-rio, 75 Mass. App. Ct. 482 (2009). In Nutt, a negligence action for personal injuries sustained by a minor plaintiff who was bitten by a pit bull terrier, the Appeals Court held that the trial court erred in granting summary judgment in favor of the defend-ants, who were the landlords of the property on which the owner of the dog lived, where there were genuine issues of material fact, proper for resolution by the jury, as to whether the dog had dangerous propensities and whether the defendants knew or reasonably should have known of them. In reaching this conclusion, the court took note of an earlier criminal case in which the Supreme Judicial Court noted that pit bulls are “commonly known to be aggressive.” Nutt v. Florio, 75 Mass. App. Ct. at 487 (citing Commonwealth v. Santiago, 452 Mass. 573, 577–78 (2008)).

Visitors and Subletting

Who is allowed to live in the unit? Can people be added to the lease? How long can a “visit” last? Does the landlord have to agree to adding or deleting people on the lease? Can the tenant sublet the apartment to someone else and, if so, what re-strictions apply to this rerental? If the unit is rerented, is the tenant still responsible for the unit during the rest of the lease? Under the terms of most contracts between owners and state or federal agencies providing rental assistance, subletting is prohib-ited in subsidized units.

Amenities

Is parking or access to a garage included? Does the tenant have the right to use the backyard, porch, storage area, basement, or attic? Are there any restrictions or limita-tions placed on the use of these areas? Are there any charges for the use of a parking space?

Restrictions on Use of Unit

Can the unit be used partially as an office or as a store? Can the tenant store items in the hallway? How is trash handled? Are there any limitations on noise or music? What is the tenant’s responsibility for the conduct of guests, family members, in-vitees, or household members in the unit, in the common areas, or on the grounds?



Costs of Enforcement of Agreement

Will the tenant be obligated to pay the costs incurred by the landlord, including at-torney fees, in the event the landlord reasonably incurs such costs in obtaining com-pliance with the agreement or in terminating the tenancy due to some default by the tenant? Unless there is a written agreement signed by the tenant, attorney fees are not usually recoverable from the tenant in the event of a default. However, G.L. c. 186, § 20 imposes an implied covenant by a landlord to pay the legal fees actually in-curred by a prevailing tenant if the tenant has a written obligation to pay the fees of a prevailing landlord.

§ 4.1.6 Fees and Deposits

Under the law, the landlord can request only first month’s rent, last month’s rent, the cost of a new lock, and a security deposit. The first and last month’s rent and security deposit cannot each exceed the amount of the initial rent charged. The landlord can-not ask the tenant to pay any other monies or deposits, although a tenant may be re-quired to pay a broker’s fee if a licensed broker was involved in locating the unit.

One of the largest pitfalls facing most landlords is the handling of the security deposit and last month’s rent. The asking for, keeping, and returning of these funds is proba-bly one of the most regulated aspects of the landlord-tenant relationship. Any mis-step, innocent or not, under the statutory requirements regarding the handling of the security deposit will automatically result in penalties, including an award of three times the amount of the deposit plus attorney fees and costs incurred by the tenant. The penalties are not quite as large for mishandling the last month’s rent and, like-wise, the restrictions on the handling are less severe.

In Hermida v. Archstone, Docket No. 10-12083-WGY (Young, J.), the U.S. District Court addressed the topic of amenity fees, in particular, whether a one-time charge for the use of a gym on a development was a violation of G.L. c. 186, § 15B. The court found that such a fee would violate the statute, as a landlord could legally de-mand only first month rent, last month rent, security deposit, and the cost of the in-stallation of a lock and key at the inception of tenancy, rejecting the landlord’s argu-ment that because the total of the amounts charged did not exceed the total amount of the allowed amounts, accepting the amenity fees was not a violation. However, as noted by the court in that decision, it was not relying on any controlling precedent in Massachusetts law for its interpretation of the statute, because there is none.

The following is an overview of the requirements for handling each of these funds, but it is strongly recommended that the requirements of G.L. c. 186, § 15B be re-ferred to whenever there is a question as to how these funds are to be held.

Judicial Commentary Because of the complexity of G.L. c. 186, § 15B, some landlords avoid taking a security deposit and just ask for the last month’s rent. This prac-tice denies a landlord the full protection the law affords. Instead, before



taking a security deposit, a lessor can use the security deposit law as a checklist to ensure compliance.

(a) Receipt and Holding of the Security Deposit

The following steps must be followed when a landlord receives and holds a security deposit.

• At the time of receiving, give the tenant a “receipt” signed by him or her, which must state

– the amount of the deposit and what it is for;

– the name of the person receiving it (if an agent receives, then also the name of the landlord or owner);

– the date on which it was received; and

– a description of the premises.

A sample rent and security deposit receipt is included as Exhibit 4F.

• After the money is deposited, within thirty days the landlord must give the ten-ant a receipt that must state

– the name and address of the bank where the money is located; and

– the amount held and account number.

• At either the time of receiving or within ten days after the tenancy begins, give the tenant a “statement of condition,” signed by the landlord, which must contain

– a comprehensive list of all damages then existing (including violations of any housing or building codes); and

– the following statement in twelve-point boldface type at the top of the first page:

This is a statement of the condition of the premises you have leased or rented. You should read it carefully in order to see if it is correct. If it is correct you must sign it. This will show that you agree that the list is correct and complete. If it is not correct, you must attach a separate signed list of any damage which you believe exists in the premises. This statement must be returned to the lessor or his agent within fifteen days after you receive this list or within fifteen days after you move in, whichever is later. If you do not return this list, within the specified time period, a court may later view your failure to re-turn the list as your agreement that the list is complete and correct in any suit which you may bring to recover the security deposit.

A sample statement of condition is included as Exhibit 4G.



• Return a copy of any separate list of damages submitted by the tenant within fifteen days with either a signed agreement or disagreement with the list.

• Hold the money in a

– separate

– interest bearing account

– located in a bank in the Commonwealth of Massachusetts

– that is not subject to claims by the landlord’s creditors

– and can be transferred to a subsequent owner.

• And, if the deposit is held for more than one year, pay the tenant interest on the deposit at either 5 percent or at the same rate as that paid by the bank, if it is less than 5 percent, together with a receipt identical to that described above. The interest is payable each year on the anniversary date of the tenancy.

Practice Note Of note to landlords who transact business with multistate banks is the case of Taylor v. Burke, 69 Mass. App. Ct. 77 (2007), where the Appeals Court found that a security deposit must be retained in a Massachusetts branch of a bank.

(b) Receipt and Holding of Last Month’s Rent

In receiving and holding the last month’s rent, the landlord must follow the proce-dure set out below.

• Give a receipt, which must state

– the amount received;

– the date received;

– what it is intended for (i.e., last month’s rent);

– the name of the person receiving (if an agent, then also name of landlord or owner);

– a description of the premises;

– the fact that the tenant is entitled to interest; and

– the fact that the tenant should provide a forwarding address at the termina-tion of tenancy.

A sample rent and security deposit receipt is included as Exhibit 4F.

• Pay the tenant interest at the end of each year, at a rate of 5 percent or at the same rate as that paid by the bank, if it is less than 5 percent (excluding inter-est accrued during the last month of the tenancy).



These monies do not have to be held in any special account nor does the landlord have to give either a statement of condition or a receipt telling the location of these funds. Failure to comply with the interest payment provisions carries a penalty of three times the unpaid interest, with attorney fees and costs.

(c) Returning the Security Deposit

As tricky as holding the deposit is, returning it also can be full of difficulties. Land-lords naturally tend to think that the security deposit can be used to cover any cost involved with the tenant, including the cost of eviction. However, the reality is far different. A security deposit can be used only to reimburse the landlord for unpaid rent, unpaid tax increases (but only if part of the lease), or for a “reasonable amount necessary to repair any damage” caused by the tenant, his or her family, or his or her guests, except for reasonable wear and tear. Within thirty days of the termination of the tenancy, the landlord must either return the deposit in full or, if any monies are being kept by the landlord, a statement must be sent to the tenant, including a com-plete, itemized list of deductions. If the deductions relate to damages and not unpaid rent, both the items and the cost of repairs must be listed, together with written doc-umentation of the actual or estimated cost of repairs, such as work orders, contrac-tors’ bills or bids, and paid invoices. The landlord must sign this statement under the pains and penalties of perjury. A sample security deposit return form is included as Exhibit 4H. The penalty for violating this part of the statute is treble damages plus attorney fees.

If the landlord fails to comply with even one seemingly minor part of the law, the statute states that a penalty may be imposed, ranging from the return of the security deposit to treble damages and attorney fees. For many years, landlords who failed to comply with the statute but returned the security deposit were protected from further liability by the holding of the Appeals Court in Castenholz v. Caira, 21 Mass. App. Ct. 758 (1986). However, in Taylor v. Beaudry, 75 Mass. App. Ct. 411 (2009), the Appeals Court severely limited that protection. In that case the court found that even though a security deposit was eventually returned to the tenant prior to the tenant filing suit, it did not occur within thirty days of the tenant vacating, triggering treble damage liability. The court distinguished Castenholz, noting that the violation in the earlier case—failure to properly deposit the funds—was not associated with any time limit. The court held that where the landlord violated a provision that clearly included both a time limit and a penalty, the landlord would not be afforded extra time to comply to avoid penalties.

Practice Note Beaudry also includes a discussion of whether the trebling should be applied to the full balance of the security deposit or to the amount that had not been lawfully retained by the landlord.

If the violation does not concern a provision containing a time limitation, the land-lord should still be able to avoid liability under the Castenholz reasoning by promptly returning the deposit. Such a return should be promptly upon demand, including the filing of a counterclaim in an eviction action. See Jenkins v. Warringer (Northeast



Housing Ct. Oct. 11, 2007) (Kerman, J.) (returning security deposit within twenty days, the time allotted for responding to counterclaim would be considered a valid return to avoid further liability under security deposit statute). As painful as it will be for a client to give back the deposit, the pain would be even more intense if the client had to write out a check for three times that amount (not to mention attorney fees, which can make even three times the security deposit seem minor). For a cautionary case involving a seasoned landlord and a refusal to timely refund the security deposit, see Spagnolo v. Mishara & Jarjojo Corp., No. 04-CV-332 (Boston Housing Ct. Jan. 31, 2006) (Pierce, C.J.).

Practice Note Security deposits are heavily regulated, whereas amounts held for the last month’s rent have fewer restrictions. The best way to distinguish be-tween the two is to think of the security deposit as the tenant’s money, which the landlord is holding in a fiduciary duty to the tenant. This means that he or she will be held to a higher standard. By contrast, the last month’s rent is considered the landlord’s moneys, which means that he or she will be able to hold it in the same fashion as other assets. Addi-tionally, there is also an inherent ambiguity in the statute, as it is not clear whether the amount that could be used to offset such charges would include interest accrued upon the security deposit. Given the usu-ally minimal amount of such interest, the prudent landlord will avoid litiga-tion under the statute and return the interest.

§ 4.2 TERMINATING A RESIDENTIAL TENANCY

§ 4.2.1 Evictions

Evictions generally result from

• nonpayment of rent;

• no-fault situations, such as nonpayment of rent increase or termination of the tenancy; or

• actions or behavior supporting an eviction for fault or “cause.”

Eviction cases are called “summary process” actions for a good reason. Everything happens very quickly; usually there are only a few days between each step. There-fore, when a client calls with an eviction problem, the attorney should schedule a meeting immediately and ask the client to bring any and all documents relating to the tenancy—for example, leases, ledgers, canceled checks, and correspondence between the parties. After the attorney has determined the strengths and weaknesses of the case, the attorney may want to contact the opposing side immediately to determine if a settlement is possible.

A landlord who wishes to recover possession of a rental unit must proceed through a summary process court action in accordance with G.L. c. 239 and the Uniform Summary Process Rules. The only exceptions are that a landlord may file a civil action



for an injunction to repossess a unit where the tenant is using the unit for the illegal keeping or sale of alcohol or drugs, prostitution, lewdness, or illegal gaming, or if an occupant of subsidized housing threatens or uses violence. G.L. c. 139, § 19. For a more extensive discussion of these types of actions, see chapter 9 of Residential and Commercial Landlord-Tenant Practice in Massachusetts (MCLE, Inc. 3d ed. 2016).

Judicial Commentary Although the Supreme Judicial Court has emphasized that the legislature fashioned a remedy to accomplish the immediate possession of the properties by enacting the summary process statute, one owner sug-gested that it might have brought an action for writ of entry under G.L. c. 237 or, alternatively, a common law action in ejectment. The Supreme Judicial Court did not reject these possibilities, but simply responded by stating that the owner did not bring such actions. See Attorney Gen. v. Dime Sav. Bank of N.Y., 413 Mass. 284, 289–90 (1992).

(a) Terminating the Tenancy

Before a landlord can start a summary process action, the lease must have expired or the tenancy must be terminated. In most cases the landlord terminates a tenancy by serving a notice to quit upon the tenant. The notice must be in writing and include a statement of when the tenant is to vacate. Sample notices to quit are included as Exhibits 4I through 4L. (See below regarding recommended Fair Debt Collection Practices Act language.)

The notice period that must be given in the notice to quit depends on the type of ten-ancy and the reason for termination. General Laws c. 186, as well as any written documents between the parties, should be consulted to determine the applicable no-tice period. If the premises are state or federal subsidized housing, state and federal laws and the subsidy documents should be reviewed, as these set forth not only the required time periods for such notices to quit but also the language they must con-tain. The notice period commences to run from the date the tenant receives the notice to quit. In court, the landlord will have to prove when the notice was received by the tenant. The ways to accomplish this, in order of preference, are as follows:

• have a constable deliver the notice, by hand if possible (a constable’s return is prima facie evidence of the facts stated therein) or, if the constable is unable to serve in hand, a copy of the notice may be left at the last and usual place of abode, with a copy mailed by first-class mail on the same day, addressed to the tenant at the premises;

• have the landlord hand deliver the notice and have the tenant sign a copy con-firming that it was received and when; or

• send the notice to quit by certified or registered mail (this method is not rec-ommended because the tenant may never pick up the letter).



Practice Note In cases where careful timing is essential, such as with the service of a rental period notice to quit, it is always advisable to give extra time for receipt, particularly if the landlord or constable is unable to effect in-hand service. It is notice that counts, rather than an attempt at service. If the landlord delays service until the last day required for receipt, the tenant may be able to claim that he or she did not receive notice until after the required day.

It is a common misconception that a rental period notice to quit expires after thirty days; in fact, a notice to quit for a tenancy at will under G.L. c. 186, § 12 has to ex-pire on a date the rent is due. For example, if a notice to quit is served on May 15 to tenants who pay rent on the first of the month, the landlord would not be entitled to proceed to court until July 1—the first time the tenant’s rent is due after the expira-tion of the rental period. For practical purposes, it might be better to refer to any such notice as a “rental period” notice, as opposed to a thirty-day notice, in that the tenant is given a period of at least thirty days, which would encompass an entire rental per-iod, to vacate the premises.

Practice Note Keep in mind that February has fewer than thirty days. If a notice to quit is served too late in January, the landlord will not have provided a full thirty days’ notice before the tenant is required to vacate. The landlord should plan to have the notice served at least two days before the end of January to make sure that the notice includes a full thirty-day period.

The notice to quit should contain language reserving the landlord’s rights in the event the tenant tenders payment after the notice to quit is served or in the event of any other action that might otherwise be construed as recreating a tenancy. If the landlord receives rent after the notice to quit is sent, and the tenancy is not reinstated under applicable law by the payment of all rent due (see G.L. c. 186, §§ 11–12 for tenan-cies terminated for nonpayment of rent), the landlord should also send the tenant a letter stating that the funds are accepted for use and occupation only and that the landlord reserves his or her rights under the notice to quit and to commence a sum-mary process action. See the sample use and occupancy letter included as Exhibit 4M.

In addition, certain programs that provide rental assistance to tenants have adopted regulations that require mandatory language that must be included in the notice to quit or that require a longer time period for any such notice. For a full discussion of the requirements of such programs, see chapter 14 of Residential and Commercial Landlord-Tenant Practice in Massachusetts (MCLE, Inc. 3d ed. 2016).

Courts in other jurisdictions have construed the Fair Debt Collection Practices Act (FDCPA) (15 U.S.C. § 1692) to apply to notices to quit for nonpayment of rent. See Romea v. Heiberger & Assocs., 163 F.3d 111 (2d Cir. 1998). Under the statute, the initial notice about the debt must include a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed valid by the debt collector, and that if, in the same



time period, the consumer notifies the debt collector in writing that the debt or a por-tion is disputed, the debt collector must obtain verification of the debt and send a copy of the same to the consumer. Although, to the authors’ knowledge, no trial court in Massachusetts has yet applied the FDCPA to notices to quit, there is a growing ten-dency by the landlord bar to take warning from the Romea decision and include FDCPA language in standard notices to quit issued by anyone other than the landlord.

Ethics Commentary Any lawyer, from a sole practitioner to a member of a large law firm, runs the risk of being deemed a debt collector if debt collection is deemed a “regular part” of the business. See Camara v. Fleury, 285 F. Supp. 2d 90, 93 (D. Mass. 2003). Therefore, a landlord’s lawyer seeking to collect rent from a tenant by notice or other means should research the applica-bility of the FDCPA and, in particular, 15 U.S.C. § 1692e as well as G.L. c. 93, § 49. Although a violation of the FDCPA does not necessarily re-sult in a disciplinary violation, a failure to understand or research the is-sues in this context likely would. See Mass. R. Prof. C. 1.1. The safest course is to include the language required by the statute.

In certain nonpayment-of-rent situations, the tenant may cure the breach and avoid termination by timely payment of rent due along with interest and legal costs. For details of the tenant’s cure rights, see G.L. c. 186, §§ 11 and 12.

The landlord should also be cautious about serving multiple notices to quit upon the same tenant, even if alleging different grounds for termination of the tenancy in each notice, such as one for nonpayment of rent following one alleging violation of the lease, since generally such notices to quit have different termination dates, which could be construed as giving mixed messages to the tenant as to the date by which he or she must vacate. See Sukhorukova v. Farmer, No. 10-SP-2501 (Western Housing Ct. July 19, 2010) (Fields, J.).

Practice Note Any subsequent notice to quit must be carefully drafted to ensure that the prior notice to quit is not waived.

It is important that the landlord allege in the notice to quit any and all claims on which the termination is based, since courts have held that the notice to quit and the summary process complaint must allege identical reasons for terminating the tenancy. See Moylan v. Williams, No. 09-SP-5006 (Boston Housing Ct. Jan. 13, 2010) (Muirhead, J.); Brown-Carriere v. Moore, No. 14-SP-1267 (Boston Housing Ct. May 20, 2014) (Muirhead, J.) (where grounds in notice to quit were not in com-plaint, and grounds in complaint were not in notice to quit, action must be dis-missed). On the other hand, if the notice to quit alleges fault, and no grounds are necessary to terminate the tenancy-at-will, a court may decline to determine whether fault was established in ruling in the owner’s favor on possession. See Senecharles v. Maleus, No. 13-SP-4959 (Boston Housing Ct. Nov. 12, 2013) (Muirhead, J.).



Only after the notice period has expired may the landlord commence the summary process case.

(b) Commencing the Summary Process Action

The attorney or landlord first must obtain a summary process summons and com-plaint form from the court where the summary process action will be filed. The com-plaints are sold for $5 each and contain both the summons, notifying the defendant of the court date, and the complaint, informing the defendant and the court of the facts of the action.

The action must be filed either in the District Court where the premises are located or, if the premises are in a jurisdiction having a Housing Court, in the appropriate Housing Court. Some practitioners feel that the Housing Courts are very “tenant ori-ented,” e.g., the mediators will inform tenants of their rights. There are several rea-sons why a landlord might want to consider filing in the Housing Court, including the filing fee, the convenience of the location of the court, the possibility of delay if the case is transferred, and the presence of court personnel who are knowledgeable in the area of landlord-tenant law. The landlord’s lawyer should carefully examine the benefits and responsibilities of filing in each court.

Practice Note If possible, ask an attorney who has practiced in the particular Housing or District Court for an opinion about which court is preferable.

A landlord may want to file in a Housing Court because the appeal from the Housing Court is directly to the Appeals Court. If the case is brought in the District Court, the tenant may delay the trial date by moving to transfer the action to a Housing Court with geographic jurisdiction. All summary process appeals from the District Court now operate under the “one trial” system, with appeals going to the appellate divi-sion of the District Court. See 1996 Mass. Acts c. 358, as amended by 1998 Mass. Acts c. 157; 2000 Mass. Acts c. 142; 2002 Mass. Acts c. 70; 2004 Mass. Acts c. 252. (For a more in-depth discussion of appeals, see chapter 13 of Residential and Com-mercial Landlord-Tenant Practice in Massachusetts (MCLE, Inc. 3d ed. 2016).) Transfers or appeals in the Appellate Division may add time and expense. However, many tenants never appeal. The entry fee for Housing Court is $120; the entry fee for District Court is $180; both courts also add a $15 surcharge. Compare G.L. c. 185C, § 19, with G.L. c. 262, § 2. See also G.L. c. 262, § 4C.

After the summons and complaint has been obtained, it must be filled out completely—including the landlord’s name, the tenant’s name, the premises the landlord seeks possession of, and the reason for termination of the tenancy. The attorney must fill in the entry, answer, and trial dates; the dates are chosen within the guidelines provided in the Uniform Summary Process Rules.

The complaint may include a claim for unpaid rent/use and occupancy. See G.L. c. 239, §§ 2–3. Other items that are not rent (such as the unpaid portion of a security deposit, late fees, or costs for removal or replacement of property) cannot be included.



See Alzamora v. Voguenel, No. 06-SP-3517 (Boston Housing Ct. Nov. 5, 2006) (Edwards, J.); Miguel v. Veenstra, No. 05-SP-3364 (Southeast Housing Ct. Dec. 9, 2005) (Edwards, J.); Deep v. Tremblay, No. 10-SP-4716 (Western Housing Ct. Apr. 19, 2011) (Fields, J.), upheld without addressing specific issue, 81 Mass. App. Ct. 1131 (2012) (Rule 1:28 decision) (late fees); Patti v. White, No. 11-SP-2116 (Boston Housing Ct. Dec. 27, 2011) (Pierce, C.J.) (costs of missing trash containers and removal of personal property stricken); Hackett v. Smith, No. 14-SP-1109 (Bos-ton Housing Ct. Apr. 11, 2014) (Muirhead, J.) (mailbox replacement and additional water usage). A trial court may find it to be improper to include costs in the rent ledger and bar recovery of legal fees within the summary process action. See Premier Prop. Solutions v. Mousa, No. 15-SP-780 (Boston Housing Ct. Apr. 21, 2015) (Muirhead, J.). The court may also deny a rent claim if it finds that the claimant does not have standing. See, e.g., Le v. Taylor & Tyler, No. 13-SP-4024 (Boston Housing Ct. Oct. 4, 2013) (where plaintiff was tenant evicting subtenant, and arrangement with owner barred subletting, no right to pursue rent claim).

A court may bar a later claim for attorney fees even where authorized under the lease where G.L. c. 239, §§ 2–3 does not provide for recovery, the fees were not listed in the complaint, and there was no motion to amend the complaint to include fees. See Avalon Bay Cmtys. Inc. v. Thomas, No. 09-SP-2755 (Boston Housing Ct. Feb. 15, 2012) (Muirhead, J.). See the sample summary process summons and complaint form included as Exhibit 4N.

If the eviction is commenced by a corporation, limited partnership, or a person acting in a representative capacity, such as a trustee, and the complaint is not signed by an attorney, it is subject to dismissal. See Varney Enters., Inc. v. WMF, Inc., 402 Mass. 79 (1988) (corporation); Bay State Partners, Inc. v. Hunerbein, No. 98-SP-06301 (Boston Housing Ct. Feb. 22, 1999) (Daher, C.J.) (limited partnership); see also LAS Collection Mgmt. v. Pagan, 447 Mass. 847 (2006) (individual not allowed to act pro se as property manager for corporate entity and avoid Varney). On the other hand, where a party is represented, dismissal is not required where the action is brought only by a managing agent or one of the co-owners. See Knott v. Powers, 76 Mass. App. Ct. 1122 (2010) (Rule 1:28 opinion). Several trial courts have held that this defect cannot be fixed by an appearance of counsel; the remedy is to commence a new action. See Jay Hunter Realty v. Gomes, No. 95-SP-06419 (Boston Housing Ct. Jan. 5, 1996) (Daher, C.J.); Faisal v. Rivera, No. 95-SP-06422 (Boston Housing Ct. Nov. 20, 1995) (Winik, J.).

The tenant may be served with the summary process summons and complaint up to thirty days before the case is entered in the court, but must be served at least seven days prior to the entry date. Failure to meet these time standards may lead to dismis-sal. See Spearhead Capital v. Rosado-Craig, No. 14-SP-4470 (Boston Housing Ct. Nov. 24, 2014) (Muirhead, J.) (thirty-day filing period expired prior to entry date); Saxon Mortgage v. Johnson, No. 08-SP-319 (Boston Housing Ct. Feb. 15, 2008) (Winik, F.J.) (complaint served three days prior to entry date). The entry date is al-ways a Monday, and the answer date is the Monday after the entry date. If the entry or answer date falls on a holiday, the next business day should be substituted. The trial date is the Thursday after the answer date, unless the court has summary process



hearings on a different date. Because the Housing Courts for the Northeast, South-east, Western, and Worcester Divisions schedule hearings at locations that depend on the location of the housing, the particular location of the rental unit may affect the location and date of the trial. Summary process hearings for public housing are held on days other than Thursdays for the Worcester and Boston divisions. It is best to consult with the clerk as to the dates that have been assigned for these cases prior to serving the complaint.

Practice Note Particularly when the case is being filed in a Housing Court outside of Boston or in any District Court, it is prudent to confirm the date and time of the trial with the clerk’s office of that court.

After the attorney has filled out the summons and complaint, the original should be sent to a constable or sheriff for service. Legal directories or the town or city clerk’s office will provide information on constables licensed to serve in the area where the premises are located.

By the entry date, the attorney must file with the court

• the original summons and complaint with return of service,

• a copy of the notice to quit with the proof of delivery on which the plaintiff plans to rely at trial, and

• the entry fee.

Practice Note These documents must be actually received by the clerk’s office by the close of business on the entry date; the rules specifically provide that late entry is allowed only upon agreement by the defendant. Unif. Sum. Proc. R. 2.

Ethics Commentary A landlord’s attorney who misses the entry date should face up to it and reserve the summons and complaint. For a case where a landlord’s at-torney tried to cover up her inadvertence by filing a summary process complaint and summons with an altered entry date, see AD No. 96-4, 12 Mass. Att’y Disc. Rep. 601 (1996) (the lawyer received private discipline due to extraordinary mitigation).

(c) Filing the Answer; Jury Demand

Answer, Defenses, and Counterclaims

Under Unif. Sum. Proc. R. 3, the defendant is supposed to file a written answer that denies every disputed statement in the complaint. The defendant is also to state in the answer any affirmative defense that may be asserted and may state any counterclaim permitted by Unif. Sum. Proc. R. 5. The answer is to be filed with the clerk and



served on the plaintiff no later than the first Monday after the entry day, which is called the answer date. Forms of the answer are contained in the Uniform Summary Process Rules, and are to be made available in each clerk magistrate’s office. The Massachusetts Law Reform Institute has prepared a form answer that may be used by pro se litigants, available at http://www.masslegalhelp.org.

Practice Note Service is not effective until the other side actually receives the answer; merely dropping the answer in the mail on the due date does not consti-tute timely service.

Like other civil actions, a summary process action is subject to both procedural and substantive defenses. Counterclaims are permissive and not compulsory in a sum-mary process action. See Unif. Sum. Proc. R. 5. For commercial tenancies, it is not permissible to assert counterclaims that do not affect the right of possession; the de-fendant’s alternative is to file a separate affirmative action and move to consolidate the proceedings. See Fafard v. Lincoln Pharm. of Milford, Inc., 439 Mass. 512 (2003). However, for residential tenancies, G.L. c. 239, § 8A allows the defendant to raise counterclaims in conjunction with a defense to possession where either (1) the action has been brought pursuant to a notice to quit for nonpayment of rent or (2) the tenancy has been terminated without fault of the tenant or occupant. See G.L. c. 239, § 8A, ¶ 1. If the tenancy has been terminated for fault, or if the property was never rented to the occupant, then G.L. c. 239, § 8A does not provide a defense or the abil-ity to counterclaim; however, depending on the nature of the eviction, there may be other rights of counterclaim. See Bank of Am. v. Rosa, 466 Mass. 613 (2013) (postforeclosure); Deutsche Bank Nat’l Trust Co. v. Gabriel, 81 Mass. App. Ct. 564 (2012) (former homeowner not party who rented premises—conditions-based defense/counterclaim barred); Spence v. O’Brien, 15 Mass. App. Ct. 489 (1983) (fault); Melo v. Villarcon, 2015 Mass. App. Div. 32 (same). Simply holding over at the end of a lease term is not regarded as fault. See PSI LLC v. Tapia & Gomez, No. 12-SP-2313 (Boston Housing Ct. Aug. 1, 2012) (Winik, F.J.).

In cases where there is no right of defense or counterclaim under G.L. c. 239, § 8A or other authority, the occupant may still be left with certain defenses—including lack of cause to evict, retaliation, the duty to reasonably accommodate persons with disabilities, superior right to possession, and procedural defects in the notice to quit—that are independent of the rights conferred by that statute. See, e.g., Bank of N.Y. v. Bailey, 460 Mass. 327 (2011) (superior right of possession defense for former homeowner); City Wide Assocs. v. Penfield, 409 Mass. 140 (1991) (fault eviction and reasonable accommodation defense); Bank of Am. v. Yarde, No. 12-SP-4581 (Boston Housing Ct. Mar. 19, 2013) (Winik, F.J.) (reasonable accommodation defense for former homeowner). The court may scrutinize whether each of the asserted defenses will, if proven, establish a defense to possession, and may strike any defenses that would not. See Urban Edge Prop. Mgmt. v. Garcia-Perez, No. 05-SP-02436 (Boston Housing Ct. Sept. 13, 2005) (Kyriakakis, J.); Cornu Mgmt. v. Lopez, No. 04-SP-03835 (Boston Housing Ct. Jan. 20, 2005) (Pierce, J.). In cases where the courts have examined this issue, the analysis has centered on the relationship between the claims asserted by the landlord in the summary process complaint and the claims asserted



by the tenant in the answer. If the facts to be established are the same, the court is more likely to allow the matters to be heard at the same time in the interest of judi-cial economy, even if these claims may not serve as defenses to possession under G.L. c. 239, § 8A.

Under Unif. Sum. Proc. R. 5, counterclaims, where permitted, must be set forth in the defendant’s answer and designated expressly as counterclaims. The right to coun-terclaim will be deemed waived as to the pending action if such a claim is not filed with the answer, unless the court orders otherwise on motion for cause shown. See Sarno v. Ingalls, 2009 Mass. App. Div. 191 (no counterclaim under G.L. c. 186, § 14). Although no responsive pleading to a counterclaim is required in a summary process action, it is sometimes the best practice.

Defenses and compulsory counterclaims are part and parcel of the underlying case and are adjudicated as part of that case. Moreover, once a defendant has raised per-missive counterclaims in response to the plaintiff’s action, these counterclaims become part of the underlying case, unless they are dismissed or severed and trans-ferred to the civil docket. PGR Mgmt. Co. v. Credle, 427 Mass. 636 (1998). The abil-ity to pursue the counterclaims does not depend on whether the landlord can proceed with the summary process action. See Temkin v. Shatford, 2006 Mass. App. Div. 194. In order to ensure finality, litigants and the court must make sure that all claims and counterclaims are disposed of in any judgment or that there is an express determina-tion under Mass. R. Civ. P. 54(b) authorizing entry of judgment on less than all claims. But see Melo v. Villarcon, 2015 Mass. App. Div. 32 (failure to address coun-terclaims of former owner immaterial where several were void ab initio and others would not properly lie against investor purchaser).

Where authorized, counterclaims may concern any matter arising out of the rental of the property. See Shea v. Neponset River Marine & Sportfishing, Inc., 14 Mass. App. Ct. 121, 127 n.7 (1982). Although G.L. c. 239, § 8A may impose some outside limits by requiring that the counterclaim be “for a breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law,” this has been construed fairly broadly. See, e.g., Mulvanity v. Pelletier, 40 Mass. App. Ct. 106 (1996) (where grandson sought to evict grandmother, grandmother could coun-terclaim for breach of an oral lifetime lease and for intentional infliction of emotional distress). However, occasionally courts may find that the counterclaim is either not within the Housing Court’s jurisdiction or not sufficiently related to the tenancy. See, e.g., Anderson v. Anderson, No. 06-SP-2357 (Boston Housing Ct. Aug. 17, 2006) (Winik, J.) (employment-related claim); Hatzipetrou v. Zelidis, No. 10-SP-0748 (Boston Housing Ct. Apr. 1, 2010) (Muirhead, J.).

If the complaint includes a claim for rent or use and occupancy, the court, in its dis-cretion—even where the residential tenant does not have a statutory right to raise counterclaims under G.L. c. 239, § 8A—may permit counterclaims to be considered solely as an offset to rent or use and occupancy where it believes this will serve the interests of judicial economy. See Mass. R. Civ. P. 13(b); Boston Hous. Auth. v. Hem-ingway, 363 Mass. 184 (1973) (although tenant did not comply with requirements of G.L. c. 239, § 8A in effect at the time, and therefore did not have defense to possession



under that statute, court in its discretion could consider counterclaims under implied warranty of habitability as an offset against rent claimed); Palmer v. Sumner & Mac-Donald, No. 08-SP-0823 (Boston Housing Ct. Apr. 17, 2008) (Muirhead, J.).

Different counterclaims may have different statutes of limitations. Thus, while a claim for breach of warranty of habitability sounds in contract, and would ordinarily have the same statute of limitation as a rent claim (six years), claims for violation of G.L. c. 93A and G.L. c. 186, §§ 14, 15B, and 18 have a four-year limitation period. See G.L. c. 260, §§ 2, 5A. If the claim is really in the nature of tort, on the other hand, a three-year limitation period applies. See G.L. c. 260, § 2A. The court may scrutinize the nature of the claim, rather than its statutory source, in determining which statute of limitations period applies. See Waverly Apartments Co. v. Pirog, No. 99-SP-04852 (Boston Housing Ct. Dec. 21, 1999; Dec. 23, 1999) (Winik, J.) (court will not allow G.L. c. 93A to be used as an end-run around statute of limitations if claim really sounds in tort); Wingate Mgmt. Co. v. Taranov, No. 08-SP-4466 (Boston Housing Ct. Feb. 4, 2009) (Muirhead, J.) (counterclaim for negligent security is sepa-rate from lease, and three-year tort limitation applies).

Filing an Amended Answer

While the Rules of Civil Procedure ordinarily allow liberal amendment of pleadings (see Mass. R. Civ. P. 15(a); Foman v. Davis, 371 U.S. 178 (1962)), the expedited na-ture of summary process may mean, in some cases, that amendment of the answer will not be permitted. In Hodge v. Klug, 33 Mass. App. Ct. 746 (1992), the Appeals Court upheld denial of a request to amend the pleadings on the day of trial, finding there would be prejudice to the opposing party. On the other hand, if the tenant was originally unrepresented, or if certain claims were not sufficiently known or devel-oped at the time the answer was first filed, these would be factors supporting amendment sufficiently in advance of trial to avoid surprise to the opposing party. The court may find, however, that if the cause of action had not arisen at the time the original complaint was filed, the relation-back provisions of Rule 15(a) do not apply. See Longwood v. Grace, No. 14-SP-1703 (Boston Housing Ct. June 4, 2015) (Muir-head, J.) (claim for failure to vacate pursuant to rental period notice does not arise out of same transaction as case commenced for nonpayment of rent).

Filing a Late Answer

It is common for defendants to fail to file an answer by the answer date and then to move, on or prior to the trial date, for leave to file a late answer. Whether to grant the motion is left to the court’s sound discretion. The court often grants leave to file a late answer where no prejudice is shown, but it may deny motions to file late discov-ery or deny the tenant the ability to raise counterclaims. Any jury demand must be asserted by the answer date and cannot be asserted in a late answer. Unif. Sum. Proc. R. 8.



Default and Nonsuit

If the defendant has filed an answer but fails to appear for trial, and the plaintiff does appear, the defendant is defaulted. See Unif. Sum. Proc. R. 10(a). If, however, the defendant appears on the trial date but fails to file an answer, no default enters, and the trial date is supposed to be postponed for one week from the original trial date, unless the plaintiff consents in writing to an immediate trial. See Unif. Sum. Proc. R. 10(a). If the defendant files a timely answer and appears for trial, and the plaintiff does not appear, a dismissal is entered against the plaintiff. Unif. Sum. Proc. R. 10(b). In such a case, if the defendant has asserted counterclaims, the clerk will enter a default under Mass. R. Civ. P. 55(a); however, a separate hearing will be required on a motion for assessment of damages before a final default judgment can be en-tered on such counterclaims. Mass. R. Civ. P. 55(b). If the defendant files a timely answer, but neither party appears for trial, the case is dismissed seven days after the trial date unless either party requests a new trial date within the seven-day period. Unif. Sum. Proc. R. 10(b).

Raising Defenses Without Filing an Answer

Even if the tenant has not filed a written answer prior to trial, the landlord must prove his or her prima facie case. In addition, even without the filing of a formal answer, the trial court may allow the tenant to raise a defense to possession or an offset to rent or use and occupancy under G.L. c. 239, § 8A. However, if there are clear plead-ings in an action that did not include a defense under G.L. c. 239, § 8A, and the land-lord objects to the inclusion of the issue at trial, the defense may be barred. See Bou-dreau v. Ganter, 2010 Mass. App. Div. 174.

Ethics Commentary There are a number of sources for boilerplate answers designed for the pro se tenant. An ethical issue arises if a tenant asks an attorney to as-sist in drafting an answer with the understanding that the attorney will not file an appearance. Although there has been some doubt expressed about the ethics of ghost writing (cf. MBA Opinion No. 98-1), it would be ethical for an attorney to assist a tenant in drafting an answer so long as adequate investigation is done to assure that there is a good faith basis for the assertion of the defenses and counterclaims (e.g., the lawyer does not simply throw at the case every conceivable boilerplate para-graph, as so often happens in the case of unrepresented parties) and the lawyer clearly communicates to the tenant the limited scope of the repre-sentation. Mass. R. Prof. C. 1.2(c).

Practice Note The Housing Court has issued a standing order with regard to “Lawyer for a Day” programs. See Housing Court Standing Order 1-01, included as Exhibit 4O. The lawyers who participate in this program are permitted to assist litigants with drafting documents and may file limited appear-ances in order to argue motions on behalf of self-represented litigants. In addition, the Housing Court and the District Court have promulgated



standing orders allowing for an attorney to file a limited appearance un-der certain circumstances. Copies of these standing orders are included as Exhibits 4P and 4Q.

Jury Demand

A demand for jury trial must be filed with the court by the answer date. Unif. Sum. Proc. R. 8. It must also be served on the other party. Mass. R. Civ. P. 38. A simple endorsement on the complaint or answer that the request is being made is sufficient. While the landlord can include such a demand with the complaint, it is rare for this to be done, given the delay often associated with arranging a jury trial.

The failure of a party to serve a demand and file it constitutes a waiver of trial by jury. Once a demand is made, it may not be withdrawn without the consent of the parties. Mass. R. Civ. P. 38(d). However, if the court fails to notice the jury demand and neither party brings it to the court’s attention until after the trial is completed or significantly underway, it may be deemed waived. Trial judges have differed on this issue. Compare, e.g., Sicard v. Haley, No. 09-SP-1393 (Boston Housing Ct. May 19, 2009) (Muirhead, J.) (waiver), with SRS Park View Realty Trust v. Williams, No. 15-SP-2717 (Boston Housing Ct. Sept. 1, 2015) (Winik, F.J.) (no waiver, and reconsid-eration and new trial ordered).

If a jury demand has been timely filed but is not timely served, it is still effective. See Jacobs v. Gomez, No. 06-SP-4319 (Boston Housing Ct. Dec. 28, 2006) (Pierce, C.J.). In such instances the court may find that there is good cause to permit the answer to be treated as timely served, and to permit late discovery.

The Housing Court’s Time Standards recognize that jury trials in summary process actions are to be rescheduled to commence as soon as the trial calendar allows, but provide that this should be no later than ninety days from the original trial date. (In nonjury cases, if trial has been continued by court order, the trial should be resched-uled to commence as soon as the trial calendar allows, but no later than sixty days from the date of the order.) See Housing Court Standing Order 1-04, Section VI. The Time Standards for the District Court and Boston Municipal Court do not have an explicit recognition of different time standards for summary process actions tried by jury, but do provide for longer time frames for jury dispositions. See District Court Joint Standing Order 2-04; Boston Municipal Court Joint Standing Order 2-04.

Where ongoing rent is not being paid, or there is a significant arrearage, a landlord may request that the court enter an order that rent in arrears be escrowed or paid into court and the tenant be required to pay current use and occupancy pending the jury trial. If such an order is entered and the tenant does not comply, the court may order that the right to jury trial is waived. See Chandler v. Johnson, 78 Mass. App. Ct. 1120 (2011) (Rule 1:28 opinion; text available at 2011 WL 103596); Cushing Constr. Mgmt. v. Weiner, No. 06-SP-4201 (Boston Housing Ct. Dec. 21, 2006) (Edwards, J.); Wingate Mgmt. v. Taranov, No. 08-SP-4466 (Boston Housing Ct. Feb. 20, 2009) (Muirhead, J.). There are a few cases from other jurisdictions that raise questions about whether this may be an impermissible infringement on the constitutional right



to jury trial. See, e.g., Lucky Ned Pepper’s Ltd. v. Columbia Parks & Recreation Ass’n, 494 A.2d 947 (Md. Ct. App. 1985). An order that is limited to prospective rent is more likely to be found permissible from a due process perspective. See Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 10 n.10, 20 n.26 (1978); Fuentes v. Shevin, 407 U.S. 67, 85 n.15 (1972); Connecticut v. Doehr, 501 U.S. 1 (1991); Bell v. Tsintolas Realty Co., 430 F.2d 474 (D.C. Cir. 1970). Conditions of disrepair in the property may be considered in establishing the fair rental value. See 1810 Realty Group, Inc. v. Batista, No. 10-SP-4394 (Boston Housing Ct. Feb. 25, 2011) (Pierce, C.J.). A sample motion for payment of use and occupancy is included as Exhibit 4T.

In some cases the landlord may believe that there are no material issues of fact rele-vant to the dispute that would require jury determination. This may be tested by a motion to strike and/or for judgment on the pleadings under Mass. R. Civ. P. 12(c) and (f) or a motion for summary judgment under Mass. R. Civ. P. 56. For examples, see Beshere v. Alajajian, No. 08-SP-1532 (Boston Housing Ct. June 5, 2008) (Pierce, C.J.) (granting most but not all of a motion to strike and motion for judgment on the pleadings); Everbank v. Chacon, No. 13-SP-50 (Boston Housing Ct. June 19, 2013) (Winik, F.J.) (on cross-motions for summary judgment, granting defendants’ motion and denying plaintiff’s motion).

(d) Procedural Defenses

Failure to Properly Terminate the Tenancy; Defects in the Notice of Termination

A summary process action can be brought only if the tenancy has been properly ter-minated. See G.L. c. 239, § 1.

Termination of a Tenancy Under a Lease

General Principles

If a lease is involved, the owner must take the steps outlined in the lease for termina-tion. Failure to adhere to the lease provisions is usually fatal. See Shannon v. Jacob-son, 262 Mass. 463 (1928); Peeples v. Avery, No. 03-SP-0773 (Boston Housing Ct. Mar. 20, 2003) (Edwards, J.) (subsidized lease required statement of grounds for eviction, even at nonrenewal, and no documents were introduced that would show landlord in compliance); Ramos v. Hayman, No. 96-SP-04307 (Boston Housing Ct. Aug. 30, 1996) (Winik, J.) (premature commencement of action before lease termi-nated; case dismissed).

Some trial court decisions refer to the court as lacking “subject matter jurisdiction” if the tenancy has not been properly terminated; this is important because such a de-fense can be raised at any time under Mass. R. Civ. P. 12(b)(1) and 12(h), even after trial and judgment. See G.L. c. 186, § 15A (lease or rental agreement cannot waive notices required by G.L. c. 186, §§ 11 and 12; such a waiver would be void and against public policy). Other trial judges think that this is merely an affirmative de-fense under Mass. R. Civ. P. 12(b)(2) and (6). See, e.g., Darcy v. Lopes, No. 08-SP-



02504 (Boston Housing Ct. Feb. 17, 2009) (Muirhead, J.). Appellate courts have yet to consider the issue.

If a lease has expired by its own terms, however, a notice of lease termination is not necessary as long as the parties have not, through their conduct, created a new tenancy. Similarly, the landlord is not required to send a new notice where the tenant termi-nated the tenancy and the parties agreed to extend the period for the tenant to vacate. See Nettleton v. Lezama, No. 11-SP-4981 (Boston Housing Ct. Jan. 9, 2012) (Muirhead, J.).

The periods of notice required for lease termination are not established by statute, except in the case of nonpayment of rent, which requires a written fourteen-day no-tice. See G.L. c. 186, § 11. However, additional termination requirements may be imposed if the premises are subject to special rules associated with subsidized hous-ing, condominiums, or the like.

Exception Under G.L. c. 239, § 1A

General Laws c. 239, § 1A provides a procedure for the landlord to recover posses-sion of the premises in anticipation of the expiration of a lease, provided certain stat-utory conditions are met. Under this statute, a notice to quit is not mandatory. The complaint must be accompanied by a signed copy of the lease, which must have at least a six-month term. The action may not be brought before the latest date for either party to notify the other of the intent to renew or extend the lease, or in any case prior to thirty days before the end of the lease. The landlord must also give the defendants notice by registered mail within twenty-four hours of the initiation of the action.

Termination of a Tenancy-at-Will

The most common way of terminating a tenancy-at-will is through use of a notice to quit. Under G.L. c. 186, § 12, if the tenancy is being terminated for some reason other than nonpayment of rent, the notice must give the tenant at least thirty days, or a full rental period, whichever is longer, to vacate the premises. There may be cases where there is a tenancy-at-will but no clear agreement to pay rent on a periodic basis. In these cases, three months’ notice is sufficient. See G.L. c. 186, § 12; Ducker v. Ducker, 1997 Mass. App. Div. 147. However, if there was no consideration for the underlying occupancy, the tenancy is gratuitous, and no notice is required, the owner’s provision of a thirty-day notice does not convert this arrangement to a tenancy at will. See Lavelle v. Lavelle, 2012 Mass. App. Div. 150.

In addition, the date by which the tenant must vacate must be a “rent day,” i.e., a date when the rent is due. See U-Dryvit Auto Rental Co. v. Shaw, 319 Mass. 684, 685 (1946); Sanford v. Harvey, 65 Mass. (11 Cush.) 93, 95 (1853); Prescott v. Elm, 61 Mass. (7 Cush.) 346, 347 (1851). In the absence of a specific agreement as to rent day, it is deemed to be the last day of the month. See Connors v. Wick, 317 Mass. 628, 631 (1945). The time period is measured from the date the tenant actually re-ceives the notice. See Ryan v. Sylvester, 358 Mass. 18 (1970); Hodgkins v. Price, 137 Mass. 13, 16 (1883); May v. Rice, 108 Mass. 150 (1871). The date of receipt is not counted in the computation. See Johnson v. Stewart, 77 Mass. (11 Gray) 181 (1858).



The tenant may move to dismiss the action if the landlord has not given a full thirty-day period to vacate or if the date the tenant is directed to vacate is not a rent day. See, e.g., Dowell v. Boseman, No. 99-SP-03971 (Boston Housing Ct. Sept. 9, 1999) (Daher, C.J.) (notice terminated tenancy on thirty-first, rather than rent day of the first—eviction likely to be dismissed, but landlord allowed to introduce counter-affidavit as to rent day); DiBella v. D’Iorio, No. 97-SP-01690 (Boston Housing Ct. May 27, 1997) (Winik, J.); Lynch v. Robinson, No. 11-SP-1755 (Boston Housing Ct. June 8, 2011) (Muirhead, J.); George v. Woodman, No. E-89-0032 (Quincy District Ct. Mar. 17, 1989) (Kramer, J.). The court will need evidence as to the rent day, such as the tenant’s affidavit in support of a motion for summary judgment. See Joseph v. Smith, No. 98-SP-02362 (Boston Housing Ct. June 18, 1998) (Daher, C.J.). However, if a landlord gives a notice directing the tenant to vacate “at the end of the next rental period beginning after receipt of this notice” and waits a sufficient amount of time be-fore commencing the eviction case, such will be sufficient.

Practice Note As noted above, practitioners need to be especially careful with Febru-ary, because it has fewer than thirty days. A notice to quit cannot be served on the last day of January with an expiration date of the last day of February—thirty days will not have elapsed.

Special Rules for Rooming Houses

If a rooming house is involved, there are some special rules on termination. By stat-ute, occupancy in a rooming house for more than three consecutive months ordinarily creates a tenancy-at-will. See G.L. c. 186, § 17. If the occupant has been in a room-ing house for more than thirty days but less than three months, a seven-day notice can be used to terminate the right of occupancy. G.L. c. 186, § 17. While the law is not clear about whether such short-term occupants must be evicted through a sum-mary process action, it is clear that the landlord must bring some kind of court action and cannot use self-help. See G.L. c. 186, §§ 14, 15F; G.L. c. 184, § 18; Serreze v. YWCA of W. Mass., Inc., 30 Mass. App. Ct. 639 (1991); Eaton v. Plowshares, Inc., No. 92-CV-00141 (Northeast Housing Ct. Aug. 18, 1992) (Kerman, J.); Carr v. Friends of the Homeless, Inc., No. 89-LE-3942-S (Hampden Housing Ct. Apr. 3, 1990) (Abrashkin, J.). In addition, if the rooming house is not licensed, the landlord cannot benefit from any of the reduced protections provided for short-term occu-pants, and the court may treat the occupant as a tenant-at-will. See Koen & Nash v. Onnessimo, Nos. 19673–19674 (Boston Housing Ct. Oct. 30, 1985) (Daher, C.J.).

Even if rent is payable on a weekly basis, if the rooming-house occupant is a tenant-at-will, the regular fourteen-day notice is required for nonpayment of rent. A seven-day notice may be used if rent is paid on a daily or weekly basis and it is alleged that the tenant has committed a nuisance, caused substantial damage to the unit, or sub-stantially interfered with the comfort, safety, or enjoyment of the owner or other oc-cupants; the notice must specify the nuisance or interference. See G.L. c. 186, § 17. If a rental period notice is being used, the notice should afford a full thirty days and conclude at the end of a rental period, since a tenant who pays on a weekly basis has a different termination date than one who pays on a monthly basis.



Date by Which Tenant Must Vacate; Identifying the Premises

Notices that require the tenant to vacate the premises “forthwith” or do not make clear the date by which the tenant must vacate the premises are clearly defective. See Steward v. Harding, 68 Mass. (2 Gray) 335 (1854); Currier v. Barker, 68 Mass. (2 Gray) 224 (1854); Oakes v. Munroe, 62 Mass. (8 Cush.) 282 (1851); Dobos v. Colotta, No. 09-SP-3540 (Boston Housing Ct. Sept. 23, 2009) (Muirhead, J.) (notice unclear about date of termination). Moreover, if the notice does not clearly terminate the tenancy, the court may dismiss the eviction. See Torrey v. Adams, 254 Mass. 22 (1925). If a fourteen-day notice states that the tenancy terminates “fourteen days from date hereof” and is not served until several days later, the notice is defective. See Sidrowiscz v. Carr, No. 94-SP-04203 (Boston Housing Ct. Oct. 25, 1994) (Daher, C.J.).

The court may dismiss the eviction if the notice to quit gives the wrong address for the tenant to vacate, or does not clearly identify the portion of the property involved, particularly if there is no proof that it was served at the correct address. See Mejia v. Diaz, No. 14-SP-3435 (Boston Housing Ct. Nov. 20, 2014) (where room rented, fail-ure to adequately describe space rented in notice to quit may lead to dismissal); Jones v. Leach, No. 10-SP-4586 (Boston Housing Ct. Dec. 29, 2010) (Muirhead, J.); Dixon v. Myers & Young, No. 10-SP-1656 (Boston Housing Ct. June 4, 2010) (Muirhead, J.); Coriano v. Espino, No. 07-SP-2157 (Boston Housing Ct. June 28, 2007) (Muirhead, J.). But see Pantaleon v. Laurent, No. 14-SP-4456 (Boston Hous-ing Ct. Nov. 12, 2014) (Muirhead, J.) (if rooms are separately occupied but some space is shared and there is splitting of expenses of rent and utilities, joint tenancy-at-will exists, such that both occupants should have been named).

Proof of Tenant’s Receipt of Notice to Quit

If the landlord is unable to prove receipt of the notice to quit, the tenant wins, as this is an essential element of the landlord’s case. Ryan v. Sylvester, 358 Mass. 18 (1970); Harris v. Munroe, 1999 Mass. App. Div. 76; Boston Hous. Auth. v. Mitchell, No. 98-SP-04893 (Boston Housing Ct. Dec. 17, 1998) (Winik, J.) (to prove service by first-class mail, landlord must prove proper return address and have a system of business records that can prove properly sent out). Service by a constable constitutes prima facie evidence of receipt (G.L. c. 41, § 94), which presumption can be rebutted by the defendant showing affirmative evidence of lack of receipt.

Termination of Tenancy by Operation of Law; Postforeclosure Occupancy

In the past, tenancies-at-will were sometimes terminated “by operation of law,” and in such cases a notice to quit was not required. A 1973 amendment to G.L. c. 186, § 13 changed this common law rule in certain respects for residential tenancies-at-will, adding a last sentence that provides, “A tenancy at will of property occupied for dwelling purposes shall not be terminated by operation of law by the conveyance, transfer, or leasing of the premises by the owner or landlord thereof.”



In 2007, G.L. c. 186, § 13 was amended to make clear that tenancies-at-will are not terminated by operation of law where the premises have been foreclosed upon. In addition, a new statute, G.L. c. 186, § 13A, provided that any unexpired lease in ef-fect at the time of foreclosure becomes a tenancy-at-will, and that any lease involving a federal or state rental subsidy is unaffected by foreclosure. See GMAC Mortgage v. Golson, No. 08-SP-04896 (Boston Housing Ct. Feb. 27, 2009) (Winik, J.) (Massa-chusetts Rental Voucher Program lease survived foreclosure, and owner did not give proper notice under lease). For subsidized tenancies, a further amendment makes clear that the foreclosing entity must assume the lease and the rental subsidy contract with the rental subsidy administrator. See 2010 Mass. Acts c. 258, § 5. Similar re-quirements are also imposed by federal law for federally assisted tenancies. See Pub. L. No. 111-22, div. A, tit. VII, § 703 (May 20, 2009).

In addition to the subsidized tenancy protections mentioned above, the Protecting Tenants at Foreclosure Act (PTFA), adopted by Congress in May 2009, granted pro-tections to tenants in foreclosed properties where the foreclosure either took place after May 20, 2009, or was on a federally related mortgage loan. The PTFA applied to bona fide tenancies, i.e., where the tenant is not the mortgagor, or the child, spouse, or parent of the mortgagor; where the tenancy was the result of an arm’s-length transaction; and where the rent was not substantially less than fair market val-ue. Tenants continued to have the benefit of their leases; in addition, regardless of whether a lease existed or, if so, regardless of its expiration date, the immediate suc-cessor in interest after foreclosure had to give at least ninety days’ notice before pro-ceeding with eviction. The law provided that tenants could also rely on any state law provisions that provided them greater protections. This statute, however, lapsed at the end of 2014 when it was not extended by Congress. See Pub. L. No. 111-22, div. A, tit. VII, § 702, 123 Stat. 1660 (as amended by Pub. L. No. 111-203, tit. XIV, § 1484).

In 2010, a new section of the General Laws, Chapter 186A, established additional tenancy protections in foreclosed properties. If there was a bona fide lease or tenancy, the foreclosing owner must have just cause to evict. The statutory definition of “bona fide tenancy” is similar to that under the PTFA, but does not include the factor of evaluating whether the rent is substantially below market value. “Just cause” is lim-ited to failure to pay the rent in effect prior to the foreclosure; material lease viola-tions that are not cured within thirty days of notice; commission of a nuisance, sub-stantial damage, or interference with quiet enjoyment; illegal use of the premises; refusal to enter into a written extension or renewal of the tenancy; or refusal of ac-cess for repairs, inspection, or to show the premises to prospective purchasers or mortgagees. The just cause requirement does not apply if there is a binding purchase and sale agreement executed for a bona fide third party to purchase the property from a foreclosing owner. Certain disclosures must also be provided to the tenant. Thus, for example, the owner must show that there was prior written notice of the rent due specifying to whom it should be paid, or that the figure given was reasonable use and occupancy; failure to do so may lead to dismissal of an eviction for nonpayment of rent. See Wallace Prop. Mgmt. v. McKoy, No. 13-SP-5349 (Boston Housing Ct. Jan. 22, 2014) (Muirhead, J.). If eviction is sought due to sale of the property to a purchaser who will occupy the unit, there may be disputed issues of fact. See, e.g.,



FNMA v. Beaubrun, No. 14-SP-291 (Boston Housing Ct. Mar. 25, 2015) (Winik, F.J.). The statute applies to eviction cases that had begun but were not completed as of the effective date of the law. See FNMA v. Nunez, 460 Mass. 511 (2011). While the statute provides for a civil fine of $5,000 for wrongful eviction, this is not a civil remedy for the tenant, and would normally go to the Commonwealth. See FNMA v. Davis, No. 13-SP-2736 (Boston Housing Ct. July 31, 2013) (Winik, F.J.). The fact that a tenant may have been in breach of the lease does not affect the bona fide nature of the tenancy. See FNMA v. Long, Ruffin & Davis, No. 11-SP-3839 (Boston Housing Ct. Dec. 1, 2011) (Muirhead, J.). If, on the other hand, a tenancy is not found to be “bona fide” so as to be entitled to enhanced protections under the PTFA or G.L. c. 186A, the owner still needs to give a thirty-day notice to terminate the tenancy of someone who had some kind of a tenancy (as opposed to the former homeowner). See We Close the Deal LLC v. Petitfrere, No. 11-SP-2311 (Boston Housing Ct. July 21, 2011) (Muirhead, J.). For a more extensive discussion of postforeclosure evictions, see chapter 15 of Residential and Commercial Landlord-Tenant Practice in Massa-chusetts (MCLE, Inc. 3d ed. 2016).

Practice Note As a practical matter, when faced with the possibility of having both the federal and the state statute apply, a prudent practitioner should, rather than get involved in a lengthy legal battle about preemption, draft a no-tice that complies with the portion of those statutes that grants the occu-pants the most rights.

It is clear that in the cases where termination by operation of law still exists, such as the death of the lessor or lessee, see Rising v. Stannard, 17 Mass. (17 Tyng) 282 (1821), no summary process action may be commenced until “after the expiration of a period, equal to the interval between the days on which the rent reserved is payable or 30 days, whichever is longer, from the time when the tenant receives notice in writing of such termination.” G.L. c. 186, § 13. Such a notice is not, per se, a “termi-nation notice” and it therefore does not need to direct the tenant to vacate or end on a rent day. If, however, the landlord has not served such a written “waiting period” notice before the eviction case is commenced, the tenant may move to dismiss the action. See Federal Nat’l Home Loan Corp. v. Cameau, No. 98-SP-02864 (Boston Housing Ct. July 17, 1998) (Winik, J.).

As with other tenancies at sufferance, a “thirty-day” notice is not required as a pre-condition to commencement of a summary process action against a former home-owner, but there must be “reasonable notice.” See Lash v. Ames, 171 Mass. 487 (1898). While it is common practice to give at least seventy-two hours’ notice, there may be case-specific exceptions. See Homer Apartments LP v. Postoronka, 2013 Mass. App. Div. 6 (while there might have been an issue whether forty-eight-hour notice, standing alone, constituted “reasonable notice,” other notices to occupant made it sufficient).



Superior Right to Possession or Compliance with Other Preconditions Affecting Ability to Proceed with Eviction After Foreclosure

A former homeowner facing eviction after foreclosure has the right to assert defenses regarding whether the foreclosure was conducted in accordance with the statutory power of sale and whether the plaintiff had a superior right of possession. To the ex-tent that the court’s declaration may affect the validity of the foreclosure or title, this relief may also be characterized as a counterclaim. See Bank of Am. v. Rosa, 466 Mass. 613 (2013); Bank of N.Y. v. Bailey, 460 Mass. 327 (2011).

Where notice of the foreclosure auction went out after June 22, 2012, the foreclosing entity must show that it held the underlying note or was acting as an agent for the party holding the note. See Eaton v. FNMA, 462 Mass. 569 (2012).

Use of the statutory form affidavit is sufficient even if it does not provide all of the facts to demonstrate compliance with each of the elements of a mortgage’s power of sale or the statute, absent a specific challenge raised regarding compliance. See FNMA v. Hendricks, 463 Mass. 635 (2012); Deutsche Bank Nat’l Trust Co. v. Gabriel, 81 Mass. App. Ct. 564 (2012). Where a bank established that it sent notice in the manner required by statute, the fact that the debtor claimed to have not received the notice is irrelevant. See U.S. Bank Nat’l Ass’n v. Boyer, 82 Mass. App. Ct. 1102 (2012) (Rule 1:28 decision). However, where the mortgage requires “giving” notice, this means more than sending the notice, and the question is whether the notice was put into the possession of the defendant. See HSBC Bank v. Banks, No. 12-SP-1800 (Boston Housing Ct. Nov. 20, 2012) (Muirhead, J.).

If there is a showing that a party did not have title at the time of assignment, there is no superior right of possession. See U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637 (2011); FNMA v. Carr, 2012 Mass. App. Div. 223 (Rule 60(b) relief appropriate).

General Laws c. 244, § 35A is not considered part of the mortgage foreclosure pro-cess, and therefore an improper notice under the statute may not invalidate a foreclo-sure absent a showing that the foreclosure is fundamentally unfair and the defendant is entitled to affirmative equitable relief setting aside the foreclosure sale. See U.S. Bank Nat’l Ass’n v. Schumacher, 467 Mass. 421 (2014). On the other hand, if the mortgage itself requires certain disclosures of rights, an inadequate disclosure may mean there is no strict compliance with the power of sale, and the foreclosure is void. See Piniti v. Emigrant Mortgage Co., 472 Mass. 226 (2015).

Similarly, courts have disagreed about whether violations of the Home Affordable Modification Program (HAMP) or a pooling and servicing agreement may give rise to a postforeclosure defense. Compare U.S. Bank Nat’l Ass’n v. Hoynoski, No. 11-SP-3965 (Western Housing Ct. Nov. 8, 2012) (Fein, F.J.) (claims may be considered), with Deutsche Bank v. Sapointe, No. 11-SP-3714 (Boston Housing Ct. Apr. 27, 2012) (Winik, F.J.) (rejecting claims).

If a HUD-insured mortgage is involved, the plaintiff must show an attempt to set up a face-to-face interview with the defaulting borrower before exercising acceleration



remedies unless certain regulatory exemptions apply. See 24 C.F.R. § 203.604; Wells Fargo Bank v. Cook, 87 Mass. App. Ct. 382, review denied, 472 Mass. 1107 (2015).

Demand for Rent Increase

A landlord’s demand that the parties enter into a new tenancy at an increased rent does not establish an obligation for the tenant to pay the increased rent such that the landlord may evict the tenant for nonpayment of rent if the tenant does not pay the higher rent. A tenant who continues to tender or offer the old rent is not subject to eviction for nonpayment of rent, and the landlord may not proceed using a fourteen-day notice under either G.L. c. 186, § 11 or § 12. See Williams v. Seder, 306 Mass. 134 (1940); 11 Everett St. Realty Trust v. Hynes, 2002 Mass. App. Div. 10. In addi-tion, trial courts have found that the inclusion of a claim for rent at a higher amount than the tenant agreed to pay may be a violation of G.L. c. 93A. See Padgett v. Bouil-lette, No. 90-SP-02666 (Hampden Housing Ct. May 9, 1991) (Abrashkin, J.); Small v. Gonzales, No. SP-6412-S-85 (Hampden Housing Ct. July 29, 1985) (Peck, J.).

The owner may instead proceed with termination of the tenancy using a rental period notice to quit, and the owner has the option of combining the notice with an offer of a new tenancy at an increased rent. G.L. c. 186, § 12. If the offer of a new tenancy in the notice is conditioned on later acceptance by the owner, the notice might be found to be fatally ambiguous. See Gallucio v. Penney, No. 04-SP-1046 (Boston Housing Ct. Aug. 13, 2004) (Pierce, J.).

Cure Rights and Notice Defects

Under G.L. c. 186, § 11, if a tenant’s tenancy under a lease has been terminated for nonpayment of rent, the tenant has up until the answer date in the summary process action to “cure” the arrearage by tendering all rent due (including use and occupancy that may have accrued in the interim), as well as any costs of suit or interest that would be due after entry of the action. Nothing in the statute requires the landlord to notify the tenant about such cure rights.

Under G.L. c. 186, § 12, tenants-at-will have lesser cure rights in nonpayment cases—they only have the opportunity to pay up the rent (and any use and occupancy that may have become due) within ten days of receipt of the notice, and they can do this only if they have not received any similar notice within the prior twelve months. If the owner fails to state the statutory cure rights within the fourteen-day notice to quit received by a tenant-at-will, the statute provides that the tenant’s opportunity to cure is extended to the answer date (without any requirement for tendering interest or costs of suit). See, e.g., Olivier v. McFarlane, No. 09-SP-0032 (Boston Housing Ct. Jan. 20, 2009) (Muirhead, J.) (lack of language in notice about cure rights affect not notice’s validity, but time for tenant to cure; since tenant did cure prior to entry of action, eviction must be dismissed).

If, however, the owner states in the fourteen-day notice that a tenant under a lease has only the ten-day cure rights of a tenant-at-will, several trial courts have held this to invalidate the notice. These decisions are based on case law that the notice to quit



must be “perfect unto itself” and must not mislead the tenant regarding statutory rights. See Sullivan v. Barrows-Fils, No. 07-SP-4866 (Boston Housing Ct. Dec. 17, 2007) (Muirhead, J.); Sklodowski v. Neal, No. 02-SP-04391 (Boston Housing Ct. Oct. 31, 2002) (Kyriakakis, C.J.); Ayounes v. Bell, No. 01-SP-03141 (Boston Hous-ing Ct. Aug. 15, 2001) (Daher, C.J.); Collins Inv., LLC v. Lovinsky, No. 99-SP-02436 (Boston Housing Ct. June 30, 1999) (Winik, J.); Springfield II Investors v. Marchena, No. 89-SP-1342 (Hampden Housing Ct. Jan. 4, 1990) (Abrashkin, J.) (citing Oakes v. Munroe, 62 Mass. (8 Cush.) 282 (1851)); see also Blake v. Chiaramonte, No. 92-SP-00107 (Southeast Housing Ct. Mar. 3, 1992) (Kyriakakis, J.) (while notice properly stated “cure” rights, it was rendered defective because of “anti-waiver” language, which appeared to deny right to reinstate tenancy upon cure—no prejudice needs to be shown to result in dismissal); Everett Hous. Auth. v. Passarello, No. 1302-91 (Malden District Ct. 1991) (Sullivan, J.). However, the Appeals Court has ruled that such a defect does not invalidate a notice to quit in a commercial tenancy. See Rock-port Schooner Co. v. Rockport Whale Watch Corp., 58 Mass. App. Ct. 910 (2003). At least one trial court judge has held, subsequent to this Appeals Court ruling, that the same analysis applies to residential tenancies, and has refused to dismiss evic-tions where the notice has incorrect language about the lessee’s cure rights, absent a showing of prejudice. See Casserly v. Hadley, No. 03-SP-01625 (Boston Housing Ct. Sept. 8, 2003) (Pierce, J.). However, this is not universal. See Harris v. Kelly, No. 10-SP-4113 (Boston Housing Ct. Nov. 3, 2010) (Muirhead, J.) (notice defective for fail-ing to state amount due); Johnson v. Sawyer, No. 09-SP-5046 (Boston Housing Ct. Jan. 12, 2010) (Muirhead, J.) (reference to tenancy-at-will where parties really have a lease renders notice ineffective—no need to show prejudice or that tenant was actu-ally misled); Balls Realty Trust v. Hunter, No. 09-SP-4373 (Boston Housing Ct. Nov. 20, 2009) (Muirhead, J.) (same).

It is improper for the landlord to insist that a cure include the costs of service of the notice to quit, since there is no requirement that the notice to quit be served by a con-stable or deputy sheriff. See Commonwealth v. Chatham Dev. Co., 49 Mass. App. Ct. 525 (2000). However, if the tenant offers to cure after the action is entered in court, the landlord may require that the cure include the costs of service of process, as well as the entry fee, summons fee, and court surcharges. Moreover, a party cannot carry over costs from a prior action unless there is a judgment entered by the clerk as-sessing the same, and costs cannot be recovered for cases that were dismissed under Mass. R. Civ. P. 41. See Hegarty v. Malone, No. 08-SP-4912 (Boston Housing Ct. Jan. 28, 2009) (Muirhead, J.).

Multiple Notices to Quit

If a landlord serves both a fourteen-day and a rental period or lease violation notice to quit at the same time, some trial courts have found that this violates the legal requirement that notices state an absolute termination date and send a clear and un-ambiguous message (to not blow “hot and cold”). The example of a simultaneous fourteen-day and rental period or lease violation notice is particularly problematic because the tenant could cure the breach identified by the fourteen-day notice and reinstate the tenancy, and this would be inconsistent with the rental period or lease



violation notice terminating the tenancy. See Thomas v. Pelletier, No. SP-2006-S87 (Hampden Housing Ct. May 23, 1987) (Abrashkin, J.) (citing Maguire v. Haddad, 325 Mass. 590 (1950)); cf. McDonald v. Weekes, No. E-62-89 (Somerville District Ct. May 25, 1989) (Flatley, J.); English v. Moore, Summary Process No. 43972 (Bos-ton Housing Ct. July 10, 1987) (Daher, C.J.); Dos Santos v. Natal, No. 11-SP-5628 (Western Housing Ct. Mar. 26, 2012) (Fields, J.). Alternatively, a court may find that the service of a second notice to quit is inconsistent with the position that the first notice to quit terminated the tenancy. See Nichiniello v. Akerly, No. CV-910 (Somer-ville District Ct. 1991) (Coven, J.).

Practice Note Simultaneous serving of such notices creates more trouble for landlords than it does solutions to their problems. It is strongly recommended that landlords not serve notices simultaneously. It should be kept in mind that if the landlord wants to bring an eviction for cause and the tenant also owes money, the landlord can assert a claim for such rents on the ac-count annexed in the complaint. The subsequent payment of such mon-ies will not “cure” the eviction. It should be noted, however, that the land-lord must be able to prove such cause and that the inclusion of such monetary claims may subject the landlord to counterclaims to offset the rent claim.

Terminating All Tenancies

A summary process judgment is sufficient to oust a tenant and everyone holding un-der the tenant. See Keith v. Perlis, 231 Mass. 409, 413 (1918); Fiske v. Chamberlin, 103 Mass. 495 (1870). However, there may be cases where more than one individual has the status of tenant. The lease may provide that several parties are lease holders. If there is a tenancy-at-will, the landlord may have accepted rent from or established tenancies with several persons. If the landlord’s notice to quit has not terminated the tenancy of every individual who may have a tenancy interest, the action may be dis-missed. See, e.g., Hobbs v. Dixon, No. 07-SP-2071 (Boston Housing Ct. June 20, 2007) (Muirhead, J.); Santana v. Brooks, No. 05-SP-00541 (Boston Housing Ct. Apr. 14, 2005) (Pierce, J.); Smith v. MacDonald, No. 02-SP-05448 (Boston Housing Ct. Mar. 11, 2003) (Edwards, J.); Loconto v. Lizotte, No. 89-SP-01271 (Worcester Housing Ct. Nov. 1, 1989) (Martin, J.). Similarly, every individual with a tenancy interest should be named in the proceeding. Otherwise, there may be a motion to dismiss for failure to join a necessary party under Mass. R. Civ. P. 12(b)(7) and 19, or a party not named in the action may later intervene and ask that the action be set aside. See Bennett v. Miller-Shorter, No. 03-SP-00051 (Boston Housing Ct. Jan. 29, 2003) (Winik, J.). If rooms are separately occupied, but some space is shared, and there is splitting of expenses for rent and utilities among occupants, the court may find a joint tenancy-at-will exists such that all occupants should have been named in the action. Pantaleon v. Laurent, No. 14-SP-4456 (Boston Housing Ct. Nov. 12, 2014) (Muirhead, J.). While the court may dismiss the claim for possession, it may still de-termine liability for rent, since the co-occupants may be jointly and severally liable



for the rent. See Faisal v. Bloom, No. 06-SP-4512 (Boston Housing Ct. Mar. 9, 2007) (Muirhead, J.).

Improper Entry of Action

A summary process action is commenced by service of the summons and complaint on the tenant, which must take place at least seven days in advance of the entry date but can take place up to thirty days prior to that date. Unif. Sum. Proc. R. 2(b). If the complaint is served on the tenant more than thirty days or less than seven days before the entry day, it is subject to dismissal. See Spearhead Capital v. Rosado-Craig, No. 14-SP-4470 (Boston Housing Ct. Nov. 24, 2014) (Muirhead, J.) (thirty-day period); Saxon Mortgage v. Johnson, No. 08-SP-0319 (Boston Housing Ct. Feb. 15, 2008) (Winik, J.) (seven-day period).

Premature Commencement

If the summary process action is commenced before the notice to quit has expired, before the lease has expired, or before any waiting period imposed by statute has elapsed, the action is “prematurely commenced” and is subject to dismissal. See De-Nuccio v. Caponigro, 259 Mass. 365 (1927); Ratner v. Hogan, 251 Mass. 163 (1925); Starikov v. Dakane, No. 11-SP-138 (Boston Housing Ct. Jan. 26, 2011) (Muirhead, J.); McCarthy v. Holloway, No. 10-SP-3030 (Boston Housing Ct. Aug. 30, 2010) (Muirhead, J.); Depillo-Sheehan Realty Trust v. Anderson, No. 05-SP-0006 (South-east Housing Ct. Feb. 17, 2005) (Chaplin, J.); Furtado v. Richardson, No. 04-SP-02768 (Boston Housing Ct. Oct. 29, 2004) (Edwards, J.); Lydon v. Curran, No. 99-SP-04821 (Boston Housing Ct. Dec. 14, 1999) (Daher, C.J.); Vargas v. Rodriguez, No. 99-SP-1644 (Northeast Housing Ct. June 30, 1999) (Kerman, J.); Everett v. Baskin, No. 98-SP-04094 (Boston Housing Ct. Aug. 28, 1998) (Winik, J.).

Complaint Not Signed or Other Information Omitted

If a summary process complaint is not signed and no address is provided for the landlord or attorney, the court may find that dismissal is appropriate for improper entry. See John v. Wittington-Tuitt, No. 95-SP-00417 (Boston Housing Ct. Mar. 21, 1995) (Daher, C.J.). However, the landlord may be able, upon motion, to cure such defects, provided that there is no prejudice to the defendant. Similarly, a trial court may dismiss the action if the bottom of the summons and complaint, where the an-swer and trial dates appear, is not filled in or if the tenant’s copy is not the same as that filed with the court; this may be done even absent a showing of prejudice. See Shun Lo v. Yeung, Summary Process No. 24539 (Boston Housing Ct. Apr. 5, 1983) (King, J.).

Grounds for Eviction

If a landlord wishes to evict for breach of lease, he or she must state grounds for eviction that would be a basis to terminate the lease. Thus, for example, it would not be proper for a landlord to bring an eviction for failure to pay a rent increase where,



under the lease, the tenant was not yet subject to a rent increase. More-over, the plaintiff’s failure to put the lease into evidence is often fatal to a “lease breach” case. See, e.g., Holland v. Cobb, No. 03-SP-03927 (Boston Housing Ct. Nov. 21, 2003) (Pierce, J.); Wells v. Rowe, No. 99-SP-02071 (Boston Housing Ct. May 25, 1999) (Winik, J.).

Judicial Commentary In some judges’ opinion, failure to put a lease into evidence is always fatal to a “lease breach” case.

For tenancies-at-will, a landlord usually is not required to state grounds for eviction. However, if the owner has chosen to include grounds for termination of tenancy in the notice to quit, then the landlord will be required to prove those grounds as part of his or her prima facie case and will be limited to the grounds assigned in the notice to quit. See Roseman v. Day, 345 Mass. 93 (1962); Strycharski v. Spillane, 320 Mass. 382 (1946); Tuttle v. Bean, 54 Mass. (13 Met.) 275 (1847). But see DePina v. Alves, No. 10-SP-4335 (Boston Housing Ct. Nov. 23, 2010) (Pierce, C.J.) (where tenancy-at-will can be terminated for no reason, provision of a reason was mere surplusage). If there is a lease and the landlord has alleged a lease violation in the notice to quit, the court may find it improper to rely on a summary process complaint that merely alleges failure to vacate after expiration of the notice, and dismiss the action. See Everett v. Daily, No. 15-SP-2205 (Boston Housing Ct. June 17, 2015) (Muirhead, J.).

Whether a lease or a tenancy-at-will is involved, the grounds for eviction must be supported by the prior notice to quit. See, e.g., Pine Grove Vill., Inc. v. Cardullo, 2001 Mass. App. Div. 234 (incumbent on owner to establish that tenant committed the violations that were specifically identified and alleged in the notice to quit); Glover v. Blendman, No. 99-SP-02315 (Boston Housing Ct. June 1, 1999) (Winik, J.) (where landlord originally served fourteen-day notice for nonpayment, but summons referenced only late payment and illegal conduct, and no rental period notice, action could not proceed); Kahaly v. Sinke, Roxbury District Ct. Summary Process No. 12164 (Nov. 25, 1987) (Martin, J.) (where landlord sent fourteen-day notice to quit for nonpayment but alleged both tenant fault and nonpayment in complaint, claims of fault barred because no rental period notice to quit sent); Charles v. Senatus, No. 11-SP-838 (Boston Housing Ct. Mar. 21, 2011) (Muirhead, J.) (inconsistent grounds in notice to quit and complaint).

If the tenancy is one in public or subsidized housing, applicable state and federal statutes, regulations, or guidelines may impose a requirement that the owner state “just cause” for the eviction. See, e.g., G.L. c. 121B, § 32 (public housing); 24 C.F.R. pt. 247 (subsidized housing). The plaintiff’s failure to state “just cause” for the evic-tion is a defense to recovery of possession. This may also be a claim that goes to the sufficiency of the notice to quit, where the governing law or guidelines requires that the “just cause” reason be stated in the notice of lease termination. Sometimes this defense is not “procedural,” in the sense that it can dispose of the case prior to trial—the trial court may have to hear all the evidence in order to determine whether, for example, the tenant has engaged in conduct that would be a “just cause” basis for termination of tenancy.



Recreation of Tenancy; Waiver

Reinstatement of Tenancy

If a landlord has served the tenant with a notice to quit, and subsequently accepts rent or takes other action that appears inconsistent with termination of the tenancy, the tenant may have a defense that the tenancy has been recreated by conduct of the parties. Under the common law, the payment and acceptance of rent in advance, after service of a notice to quit, may create a new tenancy. See Mastrullo v. Ryan, 328 Mass. 621 (1952); Collins v. Canty, 60 Mass. (6 Cush.) 415 (1850); Brockton Hous. Auth. v. Williams, 14 Mass. App. Ct. 955 (1982); Martins v. O’Neill, No. 02-SP-00415 (Southeast Housing Ct. Jan. 31, 2003) (Chaplin, J.); Bell v. Blankney, No. 02-SP-01024 (Boston Housing Ct. May 13, 2002) (Chaplin, J.); Leeder Mgmt. Co. v. Maddox & Gardner, No. 11-SP-1418 (Boston Housing Ct. May 4, 2011) (Muirhead, J.). The question of whether a new tenancy is created is a question of fact that de-pends on the consent of both parties. See Gordon v. Sales, 337 Mass. 35 (1958).

In many cases, a landlord will include language in the notice to quit reserving the right to accept rent subsequent to the notice as “use and occupancy only.” The land-lord may also send the tenant rent receipts or other notices upon receiving payment, indicating the same. Such reservation of rights ordinarily will be evidence that the tenancy has not been recreated. See Corcoran Mgmt. Co. v. Withers, 24 Mass. App. Ct. 736 (1987). If there was no reservation of rights in either the notice to quit or at the time rent was accepted, the acceptance of rent may defeat the owner’s action. See Tokar v. Goffigan, No. 08-SP-0486 (Boston Housing Ct. Mar. 16, 2008) (Muirhead, J.). A reservation of rights on the back of a rent check is not sufficient notice because the tenant gets notice only after receiving the next monthly bank statement. Whitehouse Rest. v. Hoffman, 320 Mass. 183 (1946). The landlord may waive the right to proceed with eviction, or recreate a tenancy, by entering into a new lease or executing lease renewal or extension documents after service of the notice to quit. See Grant Manor, LP v. Gerena, No. 04-SP-02581 (Boston Housing Ct. Dec. 23, 2004) (Nasif, J.); Chestnut Hill Realty Corp. v. Mahoney, No. 94-SP-05358 (Boston Housing Ct. Sept. 13, 1996) (Winik, J.); Elad v. Tenants Dev. Corp., No. 24891 (Bos-ton Housing Ct. May 27, 1988) (Daher, C.J.); Montgomery Gateway E. I v. Herrera, 261 N.J. Super. 235, 241, 618 A.2d 865, 867 (1992).

Waiver

A related but distinct issue is that of waiver, i.e., whether the landlord has given up the right to proceed with eviction by not pursuing termination immediately after no-tice of a breach. For example, if a landlord consented to a lease breach (such as the presence of an additional occupant or pet), or did not reserve the right to proceed with eviction and executed a new lease after knowledge of a breach, the landlord may have given up the right to seek eviction for that reason. See Roseman v. Day, 345 Mass. 93 (1962); Paeff v. Hawkins-Washington Realty Co., 320 Mass. 144 (1946); Saxeney v. Panis, 239 Mass. 207, 210 (1921); Nelson Theatre Co. v. Nelson, 216 Mass. 30, 34 (1913); Porter v. Merrill, 124 Mass. 534, 541 (1878); CMJ Mgmt. Co.



v. Paris, No. 96-SP-3148 (Boston Housing Ct. Nov. 22, 1996) (Winik, J.); Allen Park Assocs. v. Lewandowski, No. 89-SP-9400-S (Hampden Housing Ct. May 8, 1989) (Abrashkin, J.); Meadowbrook Vill. Assocs. v. Feliciano, No. 89-SP-0225 (Worcester Housing Ct. Mar. 13, 1989) (Martin, J.). However, the waiver of the right to evict a tenant for one breach doesn’t waive the right to seek eviction for subsequent breaches. See Seaver v. Coburn, 64 Mass. 324 (1852); Winn Managed Props. v. Underwood, No. 09-SP-4230 (Boston Housing Ct. Sept. 2, 2010) (Pierce, C.J.). The presence of an antiwaiver provision in the lease may also influence the tribunal. See MML Corp. v. Couture, 84 Mass. App. Ct. 1125 (2013) (Rule 1:28 decision) (no waiver of right to enforce lease provisions where tenant did not reimburse for repairs).

In a nonpayment eviction, the landlord is usually barred from seeking to recover rent due under a prior lease, and the landlord’s remedy instead would be to bring a con-tract action. See Commonwealth-Babcock Assocs. v. Kibbi, No. 96-SP-01741 (Boston Housing Ct. Apr. 26, 1996) (Winik, J.); Beacon Resid. Mgmt. v. Pierre-Morisset, No. 10-SP-0316 (Boston Housing Ct. Nov. 9, 2010) (Winik, J.). Similarly, if a landlord brought prior summary process actions for nonpayment against the tenant, and set-tled those claims with agreements for judgment with repayment plans, the landlord usually is barred by those prior agreements from later claiming that more was due for rent for those periods. See Franklin Park II v. McLean, No. 96-SP-05161 (Boston Housing Ct. Nov. 8, 1996) (Winik, J.); see also Chandler v. Johnson, 78 Mass. App. Ct. 1120 (2011) (Rule 1:28 opinion; text available at 2011 WL 103596) (prior adju-dication that dismissed landlord’s rent claims but did not specifically state that dis-missal was without prejudice operated as adjudication on merits under Mass. R. Civ. P. 41(b)(3), and landlord was barred from raising those claims in new action).

(e) Substantive Defenses

G.L. c. 239, § 8A

In General

Under G.L. c. 239, § 8A, a tenant has the right to raise both a defense to possession and counterclaims where the tenancy is terminated by a notice to quit for nonpay-ment of rent or through no fault of the tenant. The defense and counterclaim are available even if a tenancy-at-sufferance is involved. See Hodge v. Klug, 33 Mass. App. Ct. 746 (1992). An occupant who has never been a tenant, however, has no rights under this statute. See Deutsche Bank Nat’l Trust Co. v. Gabriel, 81 Mass. App. Ct. 564 (2012). On the other hand, if the plaintiff seeks to recover use and oc-cupancy under G.L. c. 186, § 3 and G.L. c. 239, § 2, the occupant may be able to assert substandard conditions as an offset or as part of the determination of fair rental value. See Boston Hous. Auth. v. Hemingway, 363 Mass. 184 (1973); Bank of Am. v. Garbowski, No. 12-SP-4636 (Boston Housing Ct. Jan. 24, 2013) (Muirhead, J.); Federal Nat’l Mortgage Ass’n v. Lorquet, No. 0956-SU-441 (Quincy District Ct. July 24, 2009) (Coven, J.).



If the tenant is being evicted on “fault” grounds, ordinarily there is no defense under G.L. c. 239, § 8A. See Answer, Defenses, and Counterclaims in § 4.2.1(c), above. However, the landlord still must prove that the tenant is in violation of the rental agreement; if the landlord cannot, the tenant may have a valid defense under Section 8A. See RAM Mgmt. Co. v. DeLoach, No. 99-SP-02738 (Boston Housing Ct. June 26, 2000) (Winik, J.); Young v. Jackson, Summary Process Nos. 40979–40984 (Boston Housing Ct. Apr. 10, 1987) (Abrashkin, J.).

There may be borderline cases as to whether a G.L. c. 239, § 8A defense and related counterclaims can be raised. Some examples follow.

• The tenant is being evicted for chronic late payment of rent. The owner may claim that this is not “pursuant to a notice to quit for nonpayment of rent.” The tenant may respond, however, that he or she did not pay rent on time because the landlord did not timely respond to requests for repair and, therefore, under Berman & Sons, Inc. v. Jefferson, 379 Mass. 196 (1979), the tenant had the right to stop paying rent until the repairs were completed. Trial courts have not agreed on this issue. Compare Boston Hous. Auth. v. Sylvera, No. 05-SP-00787 (Boston Housing Ct. Mar. 22, 2006) (Pierce, C.J.) (conditions-based defense available in late payment case), with Stony Brook Commons v. Bellfield, No. 14-SP-2394 (Boston Housing Ct. Nov. 3, 2014) (Winik, F.J.); Smith & Buck v. Burrell, No. 99-SP-00155 (Boston Housing Ct. Jan. 28, 1999) (Winik, J.) (where tenant is being evicted for late payment and unauthorized occupants, no defense under G.L. c. 239, § 8A). See Alexandre v. Johnson, No. 14-SP-1710 (Boston Housing Ct. May 28, 2014) (Dalton, J.) (while no right to assert counterclaims in chronic late payment case, two months’ late rent did not rise to level of chronic late payment, particularly where one payment was cure consistent with parties’ prior eviction case); see also Woods v. Jeffrey, No. 14-SP-5265 (Boston Housing Ct. Jan. 15, 2015) (Muirhead, J.) (improper to pro-ceed on chronic late payment theory where landlord gave only one-day notice to quit for nonpayment).

• The owner alleges that the tenant caused condition problems in the building, for example, that because of poor housekeeping, there was an infestation of cockroaches. The tenant, in response, says that the condition problems were not due to his or her conduct or negligence, but due to the landlord’s failure to maintain the property. While termination of the tenancy is not “without fault” of the tenant, the court will necessarily have to consider the source of the un-derlying problem. If the court ultimately agrees with the tenant, the defense will likely as not carry with it issues of breach of the implied warranty of hab-itability, and so forth.



Conditions-Related Defenses (and Related Counterclaims) Under G.L. c. 239, § 8A

Preconditions to Asserting Conditions-Related Defense

If a tenant wishes to claim a defense to possession based on the substandard condi-tion of the premises under G.L. c. 239, § 8A, either by itself or with conditions-related counterclaims (such as breach of the implied warranty of habitability, breach of quiet enjoyment, or breach of G.L. c. 93A, § 2), the four elements of the second paragraph of G.L. c. 239, § 8A must be satisfied:

• the tenant must show that the landlord knew or should have known of the sub-standard condition before the tenant was in arrears on rent, see Nacapoulos v. Eltobgi, 78 Mass. App. Ct. 1118 (2011) (Rule 1:28 decision);

• the tenant must show that neither the tenant nor persons under his or her con-trol caused the conditions of disrepair (ordinarily this is only necessary for the area exclusively under the tenant’s control where the condition is one that would not normally occur due to landlord action or inaction), see Fehrmann v. Campbell, 77 Mass. App. Ct. 1113 (2010) (Rule 1:28 opinion) (unclear if G.L. c. 239, § 8A defense asserted, but even if it was, court found that tenant caused conditions of disrepair, so no defense);

• the tenancy must not be in a hotel or motel, or in a rooming-house unit where occupancy has been for less than three months; and

• the repairs can be made without the tenant needing to vacate the premises.

Whether Conditions May Be Remedied with Tenant Remaining in Occupancy

There may be cases where it is not possible to rectify the substandard condition with the tenant remaining in occupancy, for example, if the landlord unlawfully rented out a basement unit that cannot be legalized. See Cornwall v. Gopaul, No. 99-SP-01328 (Boston Housing Ct. May 24, 1999) (Winik, J.) (no defense to possession under G.L. c. 239, § 8A, but tenant could get warranty and G.L. c. 186, § 14 damages for entire period, and court may also grant stay of execution if damages exceed arrears). If, on the other hand, the “illegality” of the unit is such that the owner could take steps to legalize occupancy, the courts may require the owner to take those steps, rather than benefit from his or her wrongdoing by evicting the “whistleblowing” tenant. An ex-ample of this may be failure to obtain a license for a rooming-house unit. See Robin-son v. Diamond Hous. Corp., 463 F.2d 853 (D.C. Cir. 1972) (where landlord has failed to pursue other means to legalize occupancy in good faith, such as by abating substandard conditions, he or she may not pursue eviction); see also Herbert v. Thompson, No. 98-SP-0280 (Boston Housing Ct. Mar. 10, 1998) (Winik, J.) (where tenant’s basement unit is illegal, but landlord has another vacant unit in building, owner directed to transfer tenant to vacant unit, and tenant may remain if rent bal-ance paid); Temkin v. Shatford, 2006 Mass. App. Div. 194 (no showing that owner could not obtain special permit to legalize occupancy under zoning laws); Singer v. Opuka, 1999 Mass. App. Div. 13 (owner failed to show that unit could not be legal-ized). If, on the other hand, the unit cannot be legalized, the tenant may have no



claim to possession, but may, separate and apart from any claim under the implied warranty of habitability, have a claim to recovery of rent paid for the unlawful unit. Trial courts have differed on whether all rent should be abated because of the ille-gality of the unit. See Auclair v. Torgerson, No. 91-SP-01689 (Boston Housing Ct. July 24, 1991) (Smith, J.) (all rent abated for unit that should never have been let out); Coder v. Lauer, No. 87-0236 (no recovery of rent where no certificate of occu-pancy) (Gloucester District Ct. 1987). But see Chandler v. Johnson, 78 Mass. App. Ct. 1120 (2011) (Rule 1:28 opinion; text available at 2011 WL 103596) (within trial court’s discretion to determine that illegal unit was worth 25 percent of value, as op-posed to zero value); Davis v. Rowe, No. 97-SP-01798 (Boston Housing Ct. July 7, 1997) (Winik, J.) (court denied tenant’s claims that all rent collected in unlicensed rooming-house unit was illegal and should be refunded, noting that under Hastings Assocs., Inc. v. Local 369 Bldg. Fund, Inc., 42 Mass. App. Ct. 162 (1997), court must determine whether violation of licensing statute was of sufficient substantiality that as matter of public policy the owner is precluded from collecting rent).

There is an exception for deleading work—temporary relocation of a tenant so that lead paint hazards can be abated does not deprive the tenant of the right to claim a defense under G.L. c. 239, § 8A. A landlord’s good faith desire that the tenant vacate so that the premises can be renovated or rehabilitated, however, may be sufficient to defeat the defense. See Knott v. Laythe, 42 Mass. App. Ct. 908 (1997). However, if the landlord’s objectives have not always been to renovate the property, the tenant may be able to show that the landlord’s action is pretextual or in retaliation for the tenant’s exercising of his or her rights.

Notice of Substandard Conditions Prior to Arrearage

Of the above factors, the most critical in most summary process actions is proof that the landlord knew of the substandard conditions before any arrearage. A tenant who can show that there were defects in the premises, but the landlord’s first notice of such defects was after the tenant was behind on rent, may not be entitled to a defense to possession under G.L. c. 239, § 8A. See, e.g., Marshall v. St. John, 76 Mass. App. Ct. 1119 (2010) (Rule 1:28 opinion). However, the tenant still may be entitled to damages for breach of the implied warranty of habitability.

There are a variety of ways, in addition to notice from the tenant, to show a land-lord’s knowledge.

• When State Sanitary Code violations exist at the inception of the tenancy, the landlord is presumed to have knowledge of the conditions. McKenna v. Begin (I), 3 Mass. App. Ct. 168 (1975); Vandal v. St. Peter, No. 88-SP-0372 (Worces-ter Housing Ct. Apr. 20, 1988) (Martin, J.).

• Where the violation involves the presence of a lead paint hazard, the landlord is presumed to have a duty to investigate and therefore to have knowledge of the condition, from the time he or she is first aware that there is a child under the age of six in the premises. See Massachusetts Rental Hous. Ass’n v. Lead Poisoning Control Dir., 49 Mass. App. Ct. 359 (2000); 21 Appleton Realty Trust v. Bock, No. 01-SP-05802 (Boston Housing Ct. Jan. 15, 2002) (Winik, J.).



• Knowledge of preexisting sanitary code violations generally is presumed when a landlord purchases the property, given the opportunity at that time to inspect the property or to check public records on the property. See Young v. Jackson, Summary Process Nos. 40979–40984 (Boston Housing Ct. Apr. 10, 1987) (Abrashkin, J.); Pastrynak v. Williams, No. 86-SP-0123 (Worcester Housing Ct. Jan. 24, 1986) (Martin, J.).

• If State Sanitary Code violations exist in common areas the landlord may be presumed to have knowledge of them, depending on the facts of the case (such as where the landlord lives in the building or frequents the building and whether the violations are obvious). The landlord is held to a duty of reasonable care for common area violations, even absent explicit notice from the tenant. See Berman & Sons, Inc. v. Jefferson, 379 Mass. 196 (1979) (citing King v. G & M Realty Corp., 373 Mass. 658 (1977)); see also Dunn v. Hendricks, No. 05-SP-3962 (Boston Housing Ct. June 19, 2006) (Sullivan, J.) (owner should have known of lack of second means of egress from inception of tenancy). If a con-dominium unit is involved, the unit owner may still face liability for a common area violation even though other unit owners share responsibility; the unit owner may undertake repairs and seek recoupment from other owners. See Adams v. Sisco, No. 10-SP-2213 (Boston Housing Ct. Aug. 19, 2010) (Muirhead, J.).

• If the premises are inspected by a government agency with proper authority, and such agency sends the landlord a copy of the inspection report, proof that the landlord received the inspection report creates a presumption of knowledge of the conditions listed in the report as of the date the report is received. G.L. c. 239, § 8A. If a certified copy of the government agency inspection report documenting the code violations, signed under the pains and penalties of per-jury by the inspector, is submitted into evidence, it is prima facie evidence of the facts stated therein. G.L. c. 239, § 8A. This provision simplifies counsel’s job at trial as it obviates the need to subpoena the inspector and conduct a di-rect examination. Attestation and authentication under G.L. c. 233, § 76 may still be important. See Cruz v. Vaclavik, No. 06-SP-3261 (Boston Housing Ct. June 20, 2007) (Pierce, C.J.).

• If another occupant of the property complained about conditions in the prem-ises, the tenant may rely on this as notice to the landlord of such conditions. See Boston Hous. Auth. v. Hemingway, 363 Mass. 184 (1973).

Denial of Access

If the trial court finds that the tenant has denied reasonable access to the landlord to make repairs or to confirm that certain code violations complained of by the tenant do exist, the court may find that the tenant does not have a defense under G.L. c. 239, § 8A, or may limit rent abatements to the periods of time or conditions for which access was provided. See Shepton Realty Trust v. Smith, No. 06-SP-4089 (Boston Housing Ct. Dec. 8, 2006) (Chaplin, J.) (no abatement for period access was denied); Flax v. Joachim, No. 98-SP-04096 (Boston Housing Ct. Sept. 11, 1998) (Winik, J.) (same); Grubbs v. Snow, No. 97-SP-06105 (Boston Housing Ct. Dec. 12, 1997) (Daher, C.J.) (no defense); Carroll v. MacDonald, No. 97-SP-05167 (Boston Housing



Ct. Oct. 9, 1997) (Winik, J.) (no defense). Lack of access, however, may not defeat the defense if there is a separate basis for a nonconditions defense, or if the land-lord’s rent claim was otherwise improper, allowing the tenant the right to an offset and cure of the balance. See Dunn v. Cox, No. 99-SP-03639 (Boston Housing Ct. Aug. 23, 1999) (Winik, J.) (security deposit violation); Allston v. Daley, No. 94-SP-03028 (Boston Housing Ct. Jan. 4, 1995) (Smith, J.) (rent claim based on figure ten-ant never agreed to; therefore court granted right to cure balance). Alternatively, the court may grant a defense under G.L. c. 239, § 8A, with the right to retain possession with a payover of the rent balance, but without any abatement. See DePina v. Wolf & Jones, No. 07-SP-3765 (Boston Housing Ct. Oct. 19, 2007) (Muirhead, J.).

The statute does not require that a tenant has intentionally withheld rent, or that a tenant has placed his or her rent in escrow, although this is sound practice. Prior ver-sions of the statute imposed a requirement that the tenant give written notice of the intent to withhold rent due to substandard conditions and that rent be escrowed. However, the statute was revised in the 1970s to eliminate these elements of the de-fense. Absent an order or agreement requiring pretrial escrow payments, it would be prejudicial error to imply to a jury that a tenant’s failure to make such payments prior to trial without such an order was illegal. See Chiang v. Kuzoian, 2010 Mass. App. Div. 127. As noted above, the tenant need not be behind in rent at all before invoking the defense.

There is no requirement in G.L. c. 239, § 8A that there be current conditions of dis-repair in order to invoke a conditions-related defense. At least one trial court has in-dicated, however, that an offset for past conditions of disrepair is a defense only to a nonpayment eviction (with offset and an opportunity to cure any remaining balance), and not to a no-fault eviction. See Cass Hous. Ass’n v. Bangura, No. 03-SP-04430 (Boston Housing Ct. Feb. 12, 2004) (Winik, J.). Such a restrictive reading appears to be inconsistent with the current language of the statute. See Lawrence v. Osuagwu, 57 Mass. App. Ct. 60 (2003). For cases considering similar principles, see, for exam-ple, Tosi v. Adams, 424 Mass. 1001 (1997) (recovery not limited to amount of rent the tenant paid during period of eviction, but overall payments considered); Rothman v. Rent Control Bd. of Cambridge, 37 Mass. App. Ct. 217 (1994) (board’s considera-tion of past claims for abatement, even where not during time that tenant owed rent, proper in determining whether defense allowed in response to eviction action); Doo-khan v. Daily, No. 04-SP-1181 (Boston Housing Ct. May 14, 2004) (Chaplin, J.) (where at least one substandard condition predated arrearage, tenant had defense, and it was proper to include in abatement conditions arising after arrearage); Francois v. Pierre, No. 97-SP-06653 (Boston Housing Ct. Jan. 20, 1998) (Winik, J.) (although there were no conditions of disrepair at time notice to quit served, there were condi-tions of disrepair for several months before then, entitling tenant to withhold rent and to claim defense under G.L. c. 239, § 8A); Fox v. Santos, No. 97-SP-02269 (Boston Housing Ct. June 24, 1997) (Daher, C.J.) (although unit now free of lead, tenant enti-tled to withhold rent to recoup for prior violations—once there is offset, however, tenant must pay rent prospectively and will not have defense); and Roberto v. Cole-man, Summary Process No. 30737 (Boston Housing Ct. May 29, 1985) (King, J.) (in “no fault” case, tenant prevails on conditions-related defense where there were



substandard conditions at time owner took over property, even though conditions repaired prior to landlord terminating tenancy and commencing eviction). See also Grant v. Thompson, No. 03-SP-01755 (Boston Housing Ct. Sept. 16, 2003) (Pierce, J.) (although premises were repaired, there was diminution in value entitling tenant to defense). Some trial courts have found it sufficient that there have been conditions of disrepair in the past that would have entitled the tenant to a conditions-related claim, that the claim has not been satisfied by prior litigation or agreements between the parties, and that the provisions of paragraph two of the statute are met. Compare Riverdale Trust v. Komando, No. 89-SP-8854-WS (Hampden Housing Ct. Mar. 7, 1989) (Abrashkin, J.) (tenant can offset prior judgment against landlord’s rent claim in new eviction case), with Wetterhahn v. Morin, No. 01-SP-03056 (Boston Housing Ct. Oct. 5, 2001) (Chaplin, J.) (where tenant was compensated for past conditions through abatements granted in prior summary process action, no right to assert Sec-tion 8A defense on that basis).

Judicial Commentary Because of the complexity of the statute, judges for the most part do not order money paid into court pursuant to G.L. c. 239, § 8A. To do so would duplicate the trial. On the other hand, judges often will order money into escrow to preserve the status quo, as a condition of removing de-faults or granting a continuance.

Practice Note Escrow may also be considered where a party has asserted a right to a jury that would result in a substantial delay in trial.

Defenses and Counterclaims; Relationship of Offset of Rent Under G.L. c. 239, § 8A to Implied Warranty of Habitability

If a tenant is raising a conditions-related defense under G.L. c. 239, § 8A, it is often advisable to raise all conditions-related counterclaims, such as breach of the implied warranty of habitability, breach of quiet enjoyment (under G.L. c. 186, § 14), and violation of G.L. c. 93A, § 9 (where the landlord is engaged in trade or commerce). An adverse finding on the G.L. c. 239, § 8A defense often has an estoppel effect on conditions-related claims in the future, to the extent that the defense did not fail on procedural grounds (such as noncompliance with the statutory preconditions to rais-ing a conditions defense).

In most cases, to establish a conditions-related defense under G.L. c. 239, § 8A, the tenant must also show that the substandard conditions amount to a material breach of the implied warranty of habitability. A limited exception exists. In Poncz v. Loftin, 34 Mass. App. Ct. 909 (1993), the tenant had to pay for his own heat and hot water, but there was no written agreement to this effect. This constituted a breach of the State Sanitary Code (105 C.M.R. §§ 410.190, 410.201) and G.L. c. 93A. See Young v. Patukonis, 24 Mass. App. Ct. 907 (1987). The court found, however, that absent proof of a diminution in value, the tenant would not be entitled to damages under the implied warranty of habitability, and damages under G.L. c. 93A would be limited to the statutory minimum of $25. In such cases, of course, the tenant would have to



show that the landlord is engaged in trade or commerce. See Boston Hous. Auth. v. Howard, 427 Mass. 537 (1998) (housing authority not subject to G.L. c. 93A); Young v. Patukonis, 24 Mass. App. Ct. 907 (1987) (owner-occupant of three-family house not subject to G.L. c. 93A).

Not every breach of the State Sanitary Code violation will be deemed sufficient for the court to determine that the value of the apartment has been diminished. See McKenna v. Begin (II), 5 Mass. App. Ct. 304 (1977). The measure of diminished value under G.L. c. 239, § 8A is similar to that under the implied warranty of habitability, i.e., the difference between the fair market value of the premises and the value of the premises in its defective condition. Boston Hous. Auth. v. Hemingway, 363 Mass. 184 (1973); Haddad v. Gonzalez, 410 Mass. 855, 872–73 (1991). A de minimis loss of value may not constitute a material breach. Trial courts are given broad discretion in determining whether alleged conditions constitute a material breach of the implied warranty of habitability. Factors to be considered are the seriousness of the claimed defects and their effect on the building’s habitability, as well as the length of time the defects exist. Boston Hous. Auth. v. Hemingway, 363 Mass. 184 (1973). Since the nature, effect, and duration of the breach of the warranty are also factors in measur-ing damages, advocates and trial courts often end up blurring the distinction between whether there has been a material breach and the measure of damages. The defense under G.L. c. 239, § 8A differs from a claim under the implied warranty of habitabil-ity, however, inasmuch as there are no “damages” awarded, per se, on the defense—all the court does is reduce or offset any rent owed and determine if there is a defense to possession. See Miskolczi v. Wilson, 6 Mass. App. Ct. 861 (1978). If the condition has been promptly remedied upon notice, there may be no claim. See Hutchens v. Hunt, 83 Mass. App. Ct. 1125 (2013) (Rule 1:28 decision).

To recover for breach of the implied warranty of habitability, the tenant must prove that the premises contain conditions that are in violation of the State Sanitary Code’s minimum standards of fitness for human habitation.

Judicial Commentary There may be instances where conditions not covered by the code regu-lations render the apartment uninhabitable. Boston Hous. Auth. v. Hem-ingway, 363 Mass. 184 (1973).

The conditions listed in 105 C.M.R. § 410.750 are deemed to be conditions that en-danger or materially impair the health or safety and well-being of occupants or the public. In cases involving conditions other than those listed in 105 C.M.R. § 410.750, the defendant must show that these conditions either endangered or materially im-paired the health, welfare, or safety of occupants or the public. Several minor viola-tions, taken together, might rise to that standard. Other sanitary code violations may have this same effect, but the defendant may need to show that this was so in the par-ticular case. Recovery is also possible by showing that the premises are in violation of the building code, other statewide codes or local codes or regulations applicable to residential premises, and that such violations also endanger or materially impair the health, safety, or well-being of the occupants. See Crowell v. McCaffrey, 377 Mass. 443 (1979). Warranty claims go only to the physical aspects of the premises. There



may be cases where a landlord is liable for breach of quiet enjoyment but is not in violation of the implied warranty of habitability. Thus, for example, if a landlord installed proper equipment in the premises to provide for security, as required by the State Sanitary Code, but did not take reasonable steps to keep intruders away from the property, the landlord will not be liable for breach of warranty, but may be liable for a breach of quiet enjoyment. See Doe v. New Bedford Hous. Auth., 417 Mass. 273 (1994).

Massachusetts courts have held that the following conditions constitute material breaches of the implied warranty of habitability, entitling the tenant to damages:

• loose and falling plaster, holes in the bathroom floor, inadequate electrical out-lets, exposed electrical wiring, and peeling paint, Miskolczi v. Wilson, 6 Mass. App. Ct. 861 (1978);

• leaking ceilings and defective floors, Darmetko v. Boston Hous. Auth., 378 Mass. 758 (1979);

• loss of heat and inadequate hot water, Berman & Sons, Inc. v. Jefferson, 379 Mass. 196 (1979);

• lack of proper automatic door-locking mechanisms as required by G.L. c. 143, § 3R, Altschuler v. Boston Rent Equity Bd., 12 Mass. App. Ct. 452 (1981), aff’d, 386 Mass. 1009 (1982);

• floods, trash, and infestation of rodents and cockroaches, Simon v. Solomon, 385 Mass. 91 (1982); Wolfberg v. Hunter, 385 Mass. 390 (1982);

• pollution of apartment with soot from defective furnace and connected heating apparatus, Dorgan v. Loukas, 19 Mass. App. Ct. 959 (1985);

• leaking ceilings, cockroach infestation, banging of pipes, door providing no security, defective kitchen cabinets and countertops, and stained, broken, and sagging ceiling tiles, Brown v. LeClair, 20 Mass. App. Ct. 976, 977 n.2 (1985);

• vermin infestation, leaking ceilings, porous walls, and lack of heat, Montanez v. Bagg, 24 Mass. App. Ct. 954, 955 (1987); and

• repeated flooding of main living area with mold developing in carpets, North Vill. at Webster v. Braman, 81 Mass. App. Ct. 1120 (2012) (Rule 1:28 decision).

On the other hand, a lack of window guards to prevent children from falling out of a window is not a breach of the implied warranty of habitability where there is no regulation requiring that guards be provided. See Lynch v. James, 44 Mass. App. Ct. 448 (1998).

For a case illustrating how to successfully pursue an implied warranty of habitability counterclaim in a “one trial” District Court that follows the cumbersome procedures of Mass. R. Civ. P. 64A, see Elliott v. Chaouche, 2000 Mass. App. Div. 22. Note that in 2008, Mass. R. Civ. P. 64A was eliminated, but there are still special provisions for requests for findings of fact and rulings of law in District Court actions to preserve issues for appeal. See revised Mass. R. Civ. P. 52(c).



In the Housing Court, the court may choose to use its housing specialists (see G.L. c. 185C, § 16) to conduct a view of the premises and determine if they are in sub-standard condition. If the court does this, however, it must ensure that the parties have notice and an opportunity to examine the specialist or challenge the contents or admissibility of the specialist’s report. See Abdeljaber v. Gaddoura, 60 Mass. App. Ct. 294 (2004) (vacating a finding of breach of warranty that relied on a posttrial specialist’s report without such safeguards).

A tenant’s refusal to accept a landlord’s offer of substitute housing does not vitiate his or her warranty claim, particularly if the offer was not an appropriate alternative. See North Vill. at Webster v. Braman, 81 Mass. App. Ct. 1120 (2012) (Rule 1:28 de-cision) (offer of unit in “troubled” building to a recovering addict).

Calculating Diminution in Value for Breach of Warranty

If the court finds a material breach of the implied warranty of habitability, damages are to be measured from the time the landlord is on notice of the substandard condi-tion until the condition is repaired; a “reasonable time to repair” is not factored into the calculus. The tenant has the right to stop paying rent from the time of the material breach until the condition is finally remedied, at which point the duty to pay rent resumes. Berman & Sons, Inc. v. Jefferson, 379 Mass. 196 (1979).

The measure of damages for breach of warranty is the extent to which the rental value of the premises has been diminished from the fair market value of the premises as warranted. Ordinarily this will be measured from the contract rent agreed upon by the parties. However, a landlord may not relieve himself or herself of liability under the implied warranty of habitability by accepting reduced rent for the premises, and a figure higher than the contract rent may be used as the measure of damages where it more nearly approximates the fair rental value. McKenna v. Begin (I), 3 Mass. App. Ct. 168 (1975); Haddad v. Gonzalez, 410 Mass. 855 (1991). If the tenancy is subsi-dized, the full contract rental value, not the tenant’s subsidized portion of the rent, is used to measure warranty damages; the court may also consider evidence showing that the fair market value exceeds the contract rent established under the subsidy program. See Cruz Mgmt. Co. v. Thomas, 417 Mass. 782 (1994); Cruz Mgmt. Co. v. Wideman, 417 Mass. 771 (1994). For public housing, where there is no subsidy con-tract per se, the court may consider the way in which the unit is subsidized by the state or federal regulatory agencies to determine a fair rental value. See Boston Hous. Auth. v. Williams, No. 98-SP-02641 (Boston Housing Ct. Apr. 20, 2000) (Winik, J.).

In abating rent under the implied warranty of habitability, a court assesses the value of the leased premises using the percentage reduction of use method. Under this method, the court reduces the tenant’s rent by a percentage reflecting the reduction in the value of the use and enjoyment of the premises as a result of the defects in the premises. This method is intended to more closely reflect the actual injury suffered by tenants. McKenna v. Begin (II), 5 Mass. App. Ct. 304 (1978). Sometimes the value of the leased premises with substantial defects may be zero. See, e.g., Haddad v. Gonzalez, 410 Mass. 855 (1991) (premises had no value for seven-month period prior to repairs where heating system inoperable, windows defective and not weather-tight,



severe infestation of cockroaches and rodents, collapsing walls and ceilings, leaking plumbing, and foul stench emanating from stagnant water in the basement); McKenna v. Begin (I), 3 Mass. App. Ct. 168 (1975) (unit condemned as unfit for human habita-tion); Museum Square Apartments v. Martinez, No. 94-SP-01893 (Northeast Housing Ct. Mar. 20, 1996) (Kerman, J.) (100 percent abatement for five months where there was significant flooding of apartment); Greco v. Dieulie, No. 9510-CV-529 (Somer-ville District Ct. 1995) (Coven, J.) (100 percent abatement for five months due to serious cockroach infestation and lack of heat); Allard v. Campbell, No. 92-SP-00346 (Northeast Housing Ct. Oct. 6, 1992) (Kerman, J.) (100 percent abatement for two months where severe infestation of cockroaches and rodents, filthy toilet, thick fun-gal growth near shower, electrical wiring improper and inadequate, and dangerous fire escape); FNMA v. Snow, No. 13-SP-161 (Worcester Housing Ct. Apr. 25, 2013) (Sullivan, J.) (100 percent abatement). However, abatements may vary considerably, depending on the severity of the condition. If the landlord took longer to complete certain repairs, the percentage abatement may reflect this by varying over different months.

Damages under the implied warranty of habitability may include consequential dam-ages. See, e.g., Fleming v. Heafey, No. 93-SP-00099 (Northeast Housing Ct. June 10, 1993) (Kerman, J.) (damages could be recovered for loss of employment and loss of wages due to problems with heat that caused tenant and her child to suffer frequent illnesses causing absences).

Calculating Damages Where There Is Also a Conditions-Related Counterclaim for Breach of G.L. c. 186, § 14 or G.L. c. 93A, § 2

If the tenant raises a counterclaim for violation of G.L. c. 186, § 14 (sometimes re-ferred to as the covenant of quiet enjoyment for its common law equivalent) or a conditions-related counterclaim for an unfair or deceptive act or practice under G.L. c. 93A, § 2, this may change the way damages, and the offset and reduction of rent, are determined under G.L. c. 239, § 8A. The tenant is entitled to rely on whatever theory of recovery grants him or her the greatest measure of damages, but may not recover duplicative damages for what is essentially the same injury. Wolfberg v. Hunter, 385 Mass. 390 (1982). If, on the other hand, the same act violates two differ-ent laws protecting two different rights, a tenant can recover under both laws. Ianello v. Court Mgmt. Corp., 400 Mass. 321 (1987) (landlord’s action barring tenant from exercise room was both retaliatory and a breach of quiet enjoyment); Locke v. Austin, 1999 Mass. App. Div. 257.

Counterclaim Under G.L. c. 186, § 14

Several different types of breaches are covered by G.L. c. 186, § 14.

• Willful or intentional failure to provide utilities or services where the landlord is required to do so by law or by express or implied terms of the tenancy.

• Direct or indirect interference with the provision by another of such utilities.



• Transfer of responsibility for payment of utilities to the tenant without his or her knowledge or consent.

• Direct or indirect interference with quiet enjoyment of the premises. Breaches of quiet enjoyment under the common law are serious interferences with the tenancy and include acts or omissions by the landlord that impair the character and value of the premises. Ineffectual efforts to repair the premises are encom-passed within this, as well as failure to take reasonable steps to keep intruders off the property, failure to take steps to control noise or disturbance that is within the owner’s direct or indirect control, or deprivation of use of a portion of the premises. See Doe v. New Bedford Hous. Auth., 417 Mass. 273 (1994); Manzaro v. McCann, 401 Mass. 880 (1988); Ianello v. Court Mgmt. Corp., 400 Mass. 321 (1987); Blackett v. Olanoff, 371 Mass. 714 (1977); see also Wies-man v. Hill, 629 F. Supp. 2d 106 (D. Mass. 2009) (housing authority’s failure to transfer a tenant affected by noise could constitute a breach of quiet enjoy-ment). However, where there is no direct tie to use of the property, there is no claim. See Kelly v. Jones, 80 Mass. App. Ct. 476 (2011) (disparaging remarks to members of tenant’s church).

• Attempting to lock the tenant out without the use of judicial process. A land-lord’s lock-out might also trigger a damages remedy under G.L. c. 186, § 15F. However, the mere commencement of a summary process action against the tenant is not a breach of quiet enjoyment. See Burlington v. Wang, 2014 Mass. App. Div. 208.

Practice Note Sometimes the court treats a breach of G.L. c. 186, § 14 as something other than a conditions-related violation, in which case the second para-graph of G.L. c. 239, § 8A does not apply. See the discussion of non-conditions-related defenses below.

Trial courts have found breaches of quiet enjoyment where

• the landlord failed to remedy a problem with feral cats, see Prochaska & Polin v. White, No. 06-SP-0881 (Boston Housing Ct. May 25, 2006) (Edwards, J.);

• after a fire that was not tenant-caused, the tenant was required to move belong-ings into storage at the tenant’s own expense during repairs, see Nixon v. Green, No. 06-SP-2721 (Boston Housing Ct. Sept. 20, 2006) (Edwards, J.);

• the owner contacted the police to remove the tenant when the owner knew or should have known that the court process was required, see Martinez-Maaref v. Ezuma, No. 07-SP-2374 (Boston Housing Ct. July 6, 2007) (Muirhead, J.); and

• the owner knew of a water leak and failed to sufficiently investigate its source, see Nieburgs v. Critelli, No. 10-SP-4002 (Western Housing Ct. Jan. 10, 2011) (Fields, J.).

Breaches of the implied warranty of habitability, or other serious interruptions of the tenancy, may constitute a breach of quiet enjoyment if the landlord fails to act rea-sonably after receiving notice of the condition. Therefore, the standard is not the



same as for breach of warranty. See Al-Ziab v. Mourgis, 424 Mass. 847 (1997); V & B Invs. Ltd. v. King, 76 Mass. App. Ct. 1118 (2010) (Rule 1:28 opinion; text available at 2010 WL 841286) (reversing judgment for tenant on counterclaim under G.L. c. 186, § 14—conditions “not the type of serious and sustained defects” re-quired to show breach of quiet enjoyment). The tenant does not need to show that the landlord acted with malicious intent or that the landlord was reckless. It is the land-lord’s conduct and not his or her intentions that are controlling. See Cruz Mgmt. Co. v. Thomas, 417 Mass. 782 (1994); Simon v. Solomon, 385 Mass. 91 (1982). The land-lord’s inability to pay for a service or repair is no excuse. See Lowery v. Robinson, 13 Mass. App. Ct. 982 (1982). Where there have been ineffectual repair efforts over an extended period, there is likely to be liability, because there will be no “good faith” defense to the counterclaim. See Jablonski v. Clemons, 60 Mass. App. Ct. 473, 476 (2004).

As with other conditions-related defenses, a counterclaim under G.L. c. 186, § 14 for substandard conditions will not result in a defense to possession under G.L. c. 239, § 8A if the tenant was already in arrears on his or her rent at the time the substandard condition occurred. See Hairyes v. McElroy, No. 86-SP-0085 (Worcester Housing Ct. Feb. 14, 1986) (Martin, J.).

Damages under G.L. c. 186, § 14 are the greater of three months’ rent or actual dam-ages, plus costs of the action and attorney fees; actual damages may include conse-quential damages reasonably related to the injury. Damages for emotional distress may be awarded where they are foreseeable. See Homesavers Council of Greenfield Gardens, Inc. v. Sanchez, 70 Mass. App. Ct. 453 (2007). Where the tenancy is subsi-dized, damages are measured from the full contract rent, not the tenant’s portion of the rent. See Simon v. Solomon, 385 Mass. 91 (1982). A failure to award attorney fees where a breach of quiet enjoyment has been found constitutes reversible error. See Haynes v. Crockett, 2009 Mass. App. Div. 178 (remand also required where court did not clearly rule on tenant’s other counterclaims and damages); Michel v. Pierre, 2006 Mass. App. Div. 119.

If a breach of quiet enjoyment is ongoing, a tenant cannot get a separate triple-rent damages recovery for each breach; instead, the question will be whether actual dam-ages are greater than three months’ rent. However, courts have held that a tenant can get separate damages for distinct breaches of G.L. c. 186, § 14. Thus, for example, if a landlord locked a tenant out and acted unreasonably in responding to substandard conditions, the tenant may be able to get triple-rent damages for each of these breaches. See Locke v. Austin, 1999 Mass. App. Div. 257 (defendant may seek addi-tional statutory penalties under G.L. c. 186, § 14 for factually distinguishable claims); Thompson v. Thomas, No. 88-SP-8133-S (Hampden Housing Ct. Apr. 10, 1990) (Abrashkin, J.); Rosa v. Rodriguez, No. 88-LE-3006 (Hampden Housing Ct. Oct. 7, 1987) (Abrashkin, J.). In an appropriate case, a court may award both statuto-ry damages under G.L. c. 186, § 14 and consequential damages under a separate neg-ligence theory. See, e.g., Martins v. O’Neill, No. 02-SP-00415 (Southeast Housing Ct. Jan. 31, 2003) (Chaplin, J.) (landlord’s actions in removing asbestos from base-ment constituted both a breach of quiet enjoyment—entitling tenant to statutory



damages—and negligence, entitling tenant to actual damages corresponding to the estimated replacement cost of personal property).

Counterclaim Under G.L. c. 93A, § 9

The tenant may raise a conditions-related counterclaim under G.L. c. 93A, § 9. There is no requirement for a G.L. c. 93A “demand letter” and rental period response per-iod when a breach of G.L. c. 93A, § 9 is raised as a counterclaim; this is required only for affirmative claims. However, tenants sometimes choose to send a demand letter because the landlord’s failure to make a reasonable tender of settlement within thirty days of receipt of the letter may provide a separate basis for the imposition of multiple damages.

To succeed on a G.L. c. 93A, § 9 claim, the tenant must accomplish the following:

• Establish that the landlord is engaged in trade or commerce. Ordinarily, resi-dential landlords are engaged in trade or commerce in their dealings with ten-ants. See Leardi v. Brown, 394 Mass. 151 (1985). However, there may be ex-ceptions, such as where the property is a two- or three-family owner-occupied property or is public housing. See Boston Hous. Auth. v. Howard, 427 Mass. 537 (1998); Young v. Patukonis, 24 Mass. App. Ct. 907 (1987).

• Establish that the landlord has committed an unfair or deceptive act or prac-tice. Certain landlord-tenant practices have been declared by the attorney gen-eral’s regulations (see 940 C.M.R. § 3.17) to automatically be unfair or decep-tive acts or practices, include renting a dwelling unit that, at the inception of the tenancy, contains a condition that may endanger or materially impair the health, safety, or well-being of the occupant, or failing to remedy code viola-tions within a reasonable time after notice from the tenant or an agency. See 940 C.M.R. § 3.17(1)(a), (b), (i). Even if the unfair or deceptive act or practice is not listed in the attorney general’s regulations, the tenant can claim that it is covered because the act or practice is oppressive or otherwise unconscionable in any respect, or that the misconduct fails to comply with existing statutes, rules, regulations, or laws meant for the protection of the public’s health, safety, or welfare or that it violates federal consumer protection statutes. However, not every act made unlawful by statute is unfair or deceptive within the meaning of G.L. c. 93A, § 2(a). Reiter Oldsmobile, Inc. v. Gen. Motors Corp., 378 Mass. 707 (1979). Rather, the circumstances of each case must be analyzed to deter-mine whether the practice is within any recognized conception of unfairness or is immoral, unethical, oppressive, or unscrupulous. PMP Assocs. v. Globe Newspaper Co., 366 Mass. 593 (1975). An act or practice is “deceptive” if it has a tendency to deceive or could reasonably be found to have caused a per-son to act differently from the way he or she otherwise would have acted. Leardi v. Brown, 394 Mass. 151 (1985); Purity Supreme, Inc. v. Attorney Gen., 380 Mass. 782 (1980).

• In a conditions-related case, establish that there was a “substantial” breach of the implied warranty of habitability. See Cruz Mgmt. Co. v. Thomas, 417 Mass. 782 (1994). A property manager’s failure to familiarize himself or herself with



applicable laws and codes in making repairs, resulting in injury to the tenant, may be enough. See Whelihan v. Markowski, 37 Mass. App. Ct. 209 (1994).

Once a violation of G.L. c. 93A, § 2 is shown, damages are the minimum statutory damages of $25 per violation, or actual damages, whichever is greater, plus costs of the action and reasonable attorney fees. If there are several different violations of G.L. c. 93A, the court shall award damages for each distinct breach. In addition, if the court finds that there was a willful or knowing violation, or that the refusal to grant relief in response to a demand letter was made in bad faith, the court is to award double or treble damages.

The “willful or knowing” requirement of G.L. c. 93A, § 9 for double or treble dam-ages goes not to the landlord’s actual knowledge that he or she has violated the stat-ute, but rather to knowledge, or reckless disregard, of conditions in the rental unit that amount to violations of the law. See Whelihan v. Markowski, 37 Mass. App. Ct. 209 (1994). If the landlord has committed a “relatively innocent” violation of the statute, the court may not award multiple damages. Similarly, where the landlord attempted to make repairs, but was ineffectual in those efforts, the court may decide not to multiply damages even though the breach is sufficient to support “triple rent” damages under G.L. c. 186, § 14. Cruz Mgmt. Co. v. Thomas, 417 Mass. 782 (1994). Where there has been a “willful or knowing” violation of G.L. c. 93A, the court’s decision as to the multiple to be applied to actual or damages—double or treble—is based on the court’s assessment of the egregiousness of the misconduct.

Emotional Distress

Actual damages under G.L. c. 93A may include consequential damages and may include a claim for damages due to intentional infliction of severe emotional distress. See Haddad v. Gonzalez, 410 Mass. 855 (1991); Brown v. LeClair, 20 Mass. App. Ct. 976 (1985). Such claims may be brought under G.L. c. 93A, as well as under straight tort theory, to recover multiple damages and attorney fees. In such cases, the tenant must show the following:

• The landlord’s conduct was “extreme and outrageous,” “beyond all possible bounds of decency,” and “utterly intolerable in a civilized community.”

• The landlord’s conduct was either intentional or reckless, i.e., the landlord in-tended to inflict serious emotional harm or should have known that this would be a likely result. See Homesavers Council of Greenfield Gardens, Inc. v. Sanchez, 70 Mass. App. Ct. 453 (2007); see also Rader v. Odermatt, 2008 Mass. App. Div. 154 (slamming doors in middle of night and calling police on tenant).

• The conduct caused the tenant serious emotional harm.

• The emotional harm was of a nature that no reasonable person should be ex-pected to endure it.

Damages include lost income, medical and psychiatric expenses, and past, present, and future pain and suffering. Simon v. Solomon, 385 Mass. 91 (1982); Haddad v.



Gonzalez, 410 Mass. 855 (1991); Dorgan v. Loukas, 19 Mass. App. Ct. 959 (1985). In every appellate case where the issue of emotional distress was raised, the defend-ant relied on expert testimony confirming the existence of a cognizable psychiatric illness; however, there have been instances where the trial court sustained the claim without the need for such expert testimony. See, e.g., Haddad v. Rivera, Summary Process No. 33365 (Boston Housing Ct. Mar. 8, 1989) (King, J.).

Under Wolfberg v. Hunter, 385 Mass. 390 (1982), the tenant is not allowed to recover duplicative damages, but is entitled to recovery on whatever theory grants him or her the greatest amount of damages. Thus, where a tenant raises conditions-related coun-terclaims under the implied warranty of habitability (G.L. c. 186, § 14; G.L. c. 93A, § 9), the court must determine which theory establishes the largest damages award. After establishing such damages, if the tenant has not paid all rent that is due, the court must deduct the rent owed by the tenant in determining the final net award. Some examples show how this works:

• Tenant A has a rent of $500 a month and owes four months’ rent ($2,000). The court finds that the landlord breached G.L. c. 186, § 14 and that there were warranty damages of 20 percent off the rent for twelve months (a total of $1,200). The landlord is not subject to G.L. c. 93A. Three months’ rent under G.L. c. 186, § 14, or $1,500, is greater than actual damages and greater than warranty damages. Therefore, the tenant must pay $500 to the clerk’s office within seven days to retain possession under G.L. c. 239, § 8A. The tenant does not get to recover both warranty and quiet enjoyment damages.

• Tenant B’s situation is like Tenant A’s, except the landlord is subject to G.L. c. 93A. The court doubles the warranty damages under G.L. c. 93A. These damages ($2,400) exceed damages under G.L. c. 186, § 14. The tenant’s claims therefore exceed the landlord’s claims, and the tenant is awarded pos-session without any pay-over under G.L. c. 239, § 8A. The tenant also has net damages of $400. (If the tenant is represented by an attorney, reasonable attor-ney fees would be awarded.)

• Tenant C also owes $2,000. She paid a security deposit of $500, which the landlord did not deposit in an interest-bearing escrow account. The tenant also had warranty damages entitling her to a 20 percent abatement in her $500/month rent for five months ($500). The court finds that the conditions problem also amounted to a breach of G.L. c. 186, § 14 and G.L. c. 93A, awarding double warranty damages on the latter ($1,000). Here, damages of three months’ rent under G.L. c. 186, § 14 ($1,500) is the theory of recovery with the greatest damages for the conditions breach. The security deposit claim, however, is distinct from the conditions claims, and the tenant is also entitled to three times the security deposit plus interest that should have accrued as damages. The tenant is therefore entitled to damages of more than $3,000 as an offset against the landlord’s claim, and a net award of more than $1,000.

Certain language in Wolfberg v. Hunter, 385 Mass. 390 (1982), in combination with language in McKenna v. Begin (I), 3 Mass. App. Ct. 168 (1975), was interpreted by some courts to mean that recovery under G.L. c. 93A was limited to the amount of



rent the tenant actually paid during the relevant period. The Supreme Judicial Court clarified this issue in Tosi v. Adams, 424 Mass. 1001 (1997), stating that the withheld rent is applied at the end of the calculation, and the fact that the tenant did not pay any rent for a given month is not dispositive of the right to recover damages.

Utility-Related Conditions Issues

Tenants frequently assert utility-related issues as defenses and counterclaims in a summary process action.

It is clear that making a tenant pay for utility usage in a part of the building that is not exclusively occupied by the tenant is a violation of G.L. c. 186, § 14. This prac-tice is sometimes referred to as cross-metering or cross-wiring and is clearly prohibited by the State Sanitary Code. See 105 C.M.R. § 410.354; Lezberg v. Rogers, 27 Mass. App. Ct. 1158 (1989). Similarly, if there is a common heating system or common utilities for more than one unit, the landlord must pay for all such utilities; the landlord cannot shift this responsibility to the tenants. See Zimbovsky v. Tokar, 2005 Mass. App. Div. 100 (where owner leased out separate rooms in apartment to tenants and usage for each room was not separately metered, utilities had to be included in rent).

Under the State Sanitary Code, a tenant in a two- or three-unit building may, by writ-ten agreement, consent to pay for common area lights on the same floor. See 105 C.M.R. § 410.254(B). However, if there is no such written agreement, and the tenant has not otherwise known of or consented to such arrangements, charging the tenant for these costs can be a violation of G.L. c. 186, § 14 and G.L. c. 93A. See GML Corp. v. Massey, 2007 Mass. App. Div. 143; Boggio v. Glynn, No. 96-SP-01841 (Boston Housing Ct. May 9, 1996) (Winik, J.). If, on the other hand, the tenant has known of the violation and consented, so the only breach is the failure to reduce the agreement to writing, the tenant can only be awarded nominal damages of $25 under G.L. c. 93A, and then only if the landlord is engaged in trade or commerce. See Shields v. Green, No. 96-SP-01607 (Boston Housing Ct. July 16, 1996) (Winik, J.). In one case where the arrangement was probably known to the parties, but not au-thorized by the Section 8 lease, and the landlord was not engaged in trade or com-merce, the court awarded very low warranty damages, and a defense under G.L. c. 239, § 8A, but no liability under G.L. c. 186, § 14. See Thompson v. McDade, No. 95-SP-01432 (Boston Housing Ct. Oct. 25, 1995) (Winik, J.) (1 percent abatement).

There is no provision under the State Sanitary Code for the tenant to consent to pay-ing for common area utilities in other areas (such as in the basement, on stairways, or on the exterior) and, therefore, such arrangements are per se violations of G.L. c. 186, § 14. See, e.g., Bermudez v. Anderson, No. 13-SP-1036 (Boston Housing Ct. Apr. 5, 2013) (Muirhead, J.) (negligence in metering for common area electricity results in liability). The Department of Public Utilities has issued regulations that provide for some abatement or relief where the tenant has been paying for common area utilities in violation of the State Sanitary Code, but damages generally are lim-ited to the prior two-year period, with a maximum abatement of $10 per month. See 220 C.M.R. §§ 29.07–.08.



A trickier issue is where the tenant is paying for heat, hot water, or utilities for the apartment in accordance with an oral agreement between the parties, but there is no written agreement, in violation of 105 C.M.R. § 410.190 (hot water), 105 C.M.R. §§ 410.200–410.201 (heat), and 150 C.M.R. § 410.354 (electricity and gas). In Young v. Patukonis, 24 Mass. App. Ct. 907 (1987), the Appeals Court found that the tenant has a right to enforce these sanitary code provisions. However, subsequent decisions held that the lack of a written agreement, absent more, does not entitle the tenant to more than $25 nominal damages and reasonable attorney fees under G.L. c. 93A. See Poncz v. Loftin, 34 Mass. App. Ct. 909 (1993). If the landlord is not sub-ject to G.L. c. 93A, the tenant may not be entitled to damages at all. See, e.g., Pires v. Valdes, No. 10-SP-4360 (Boston Housing Ct. Jan. 11, 2011) (Muirhead, J.). Where the oral arrangement between the landlord and the tenant had been in existence for a long time, the landlord might have a defense of laches (i.e., prejudicial delay) to a claim for damages under G.L. c. 186, § 14 or G.L. c. 93A. Hodge v. Klug, 33 Mass. App. Ct. 746 (1992). No appellate court has yet decided whether it is a breach of G.L. c. 186, § 14 for a tenant to have paid for utilities when there is no written agreement that provides for payment by the tenant, and trial courts have differed on this question. Compare, e.g., Arena v. Frances, No. 99-SP-03975 (Boston Housing Ct. Oct. 14, 1999) (Winik, J.) (no breach), with Jones & King v. Skinner, No. 15-SP-1496 (Boston Housing Ct. June 1, 2015) (Muirhead, J.) (breach). What constitutes a written agreement? It could be a lease, or a letter confirming the parties’ agreement, or, in one case, the signed agreement by the landlord and the tenant to accept fuel assistance.

This does not mean, however, that tenants are without recourse when they wish to challenge the prior oral agreement to pay for utilities. In Poncz v. Loftin, 34 Mass. App. Ct. 909 (1993), the Appeals Court noted several situations where a landlord might be found liable for more than nominal damages, or where the tenant might have remedies for the landlord’s failure to have a written agreement.

• The tenant could at any time during the tenancy object to paying for heat and hot water in the absence of a written agreement, and begin to deduct from the rent each month thereafter the amount paid for heat and hot water. The land-lord, however, would be free to terminate the tenancy and offer a new tenancy at an increased rent.

• The tenant might be able to show that the rent and the costs of utilities, together, were more than the fair rental value of the premises, and therefore the landlord would be liable for actual damages under the implied warranty of habitability or G.L. c. 93A. However, the tenant might have to show that there was over-reaching or deceit by the landlord.

On occasion, parties have pursued this sort of relief. See Buckley v. Stringer & Dun-bar, No. 96-SP-04408 (Boston Housing Ct. Sept. 16, 1996) (Winik, J.) (landlord ordered to assume responsibility for utilities prospectively unless parties enter into written agreement).

A landlord’s failure to pay for utilities that he or she has agreed to pay for, or that are clearly the landlord’s responsibility, is clearly a violation of G.L. c. 186, § 14 and



also will be found to be a violation of the warranty of habitability and G.L. c. 93A. See, e.g., Allison v. Jarrett, No. 98-SP-03920 (Boston Housing Ct. Sept. 9, 1998)) (Winik, J.) (landlord’s failure to pay water and sewer bills); Bascome v. Thabit & Willis, No. 12-SP-4628 (Boston Housing Ct. Feb. 22, 2013) (Muirhead, J.). Utility providers ordinarily send tenants notice of proposed termination of service for the landlord’s failure to pay the bill and give the tenant the option of keeping service on if a projected bill is paid. See G.L. c. 164, § 124D (gas or electric service); G.L. c. 165, § 11E (water and sewer service). Tenants who make such payments are enti-tled to deduct the payments from their rent and are protected against reprisal. There may be no breach of G.L. c. 186, § 14, however, if there was neither an actual shutoff nor a tenant payment to avoid shutoff. See Saffarewich v. Lamontagne, 83 Mass. App. Ct. 1125 (2013) (Rule 1:28 decision).

In some cases a tenant may have a conditions-related claim under the “repair and deduct” statute, G.L. c. 111, § 127L. See Holder v. Reid, No. 02-SP-03124 (Boston Housing Ct. Oct. 22, 2002) (Edward, J.) (defense under both G.L. c. 239, § 8A and G.L. c. 111, § 127L). Under G.L. c. 111, § 127L, a tenant (or a group of tenants) may cause repairs to be done and deduct the reasonable expenses for the same from their rent. Tenants who exercise this right are statutorily protected against reprisal. See G.L. c. 186, § 18; G.L. c. 239, § 2A. Failure to reimburse or credit a tenant for the costs of repairs done under the repair and deduct statute is a violation of G.L. c. 93A under the attorney general’s regulations. See 940 C.M.R. § 3.17(1)(h). However, to use this remedy, the tenant must comply with following requirements of the statute:

• The tenant must contact the board of health or similar local code enforcement agency and have the owner cited for code violations.

• The landlord must have failed to begin all necessary repairs (or to contract in writing with a third party for such repairs) within five days after the landlord receives the board of health notice, and failed to have substantially completed all necessary repairs within fourteen days after such notice, unless the board of health, the court, or a similar body has ordered that the violations be corrected within a shorter period.

• The amount the tenant may deduct may not be greater than four months’ rent in any twelve-month period (if it is a violation that affects a number of tenants, all the tenants’ rents can be cumulated in making this determination).

• The amount the tenant spent to make the repairs must be reasonable under all the circumstances. The tenant should be prepared to show receipts for the ex-penses. The criteria for reasonableness includes the alternatives available to the tenant at the time the violations were first reported, the urgency of the need to repair, and the quality and cost of the work done. If the landlord thinks that the amount deducted for repairs is unreasonable, the landlord may sue for this in a contract action, but not through a summary process action. The terms of recov-ery may include an increase in rent for such future periods as the court may order; no owner may increase the rent because of repairs made pursuant to the statute, except pursuant to such a court order.



The tenant’s use of the repair and deduct statute may be invoked in relationship to a conditions-related defense under G.L. c. 239, § 8A. The statute also authorizes a ten-ant to break the lease, pay only the fair rental value of use and occupancy, and vacate within a reasonable period if the landlord fails to correct violations within the statu-tory period. It is in this way similar to the common law remedy of “constructive evic-tion” for breach of the covenant of quiet enjoyment.

Sanitary Code Enforcement Action

A tenant may commence an action against an owner for sanitary code enforcement under G.L. c. 111, § 127C after giving at least twenty-four hours’ notice to a local code enforcement agency requesting inspection of the premises. If this occurs, the court may direct that the tenant pay into court the fair rental value of the premises pursuant to G.L. c. 111, § 127F. While a tenant in arrears on rent may not utilize this remedy, a tenant is not considered in arrears when the amount of rent the landlord alleges in good faith to be due is equal to or less than the amount of any counterclaim the tenant may bring in good faith against the landlord, including any damages owed because of a breach of warranty or a violation of any other law. G.L. c. 111, § 127F. Sanitary Code enforcement and/or an injunction for relief under G.L. c. 186, § 14 may be part of the pretrial relief granted by the trial court in a summary process action. See Ciancio v. Ciancio, No. 15-SP-1555 (Boston Housing Ct. May 7, 2015) (Dalton, J.).

If a tenant is required to pay rent into court in conjunction with a State Sanitary Code enforcement action or a receivership action under G.L. c. 111, § 127F or § 127I, no judgment and execution can issue in a summary process action for nonpayment of rent. This also applies to the nine-month period following the date that such an order ceases to be operative or is revoked. See 1965 Mass. Acts c. 898, § 4; Old Holyoke Dev. Corp. v. Morales, No. 90-SP-01291-H (Hampden Housing Ct. July 3, 1990) (Abrashkin, J.). This protection is in addition to any protection that exists under stat-utory protections against retaliation.

Payment into Court; Offset and Cure Under G.L. c. 239, § 8A

In a case with conditions-related defenses (and, if applicable, counterclaims) under G.L. c. 239, § 8A, if the court finds that the requirements of the second paragraph of the statute are met, there should be no recovery of possession “pending final disposi-tion of the plaintiff’s action.” G.L. c. 239, § 8A, ¶ 4. The court “after hearing the case” may require the tenant or occupant to pay to the clerk of the court “the fair value of the use and occupation of the premises” less “the amount awarded the tenant or occupant for any claim under this section.” The funds paid into court can be used by the owner or a court-appointed receiver to make repairs; once repairs have been completed, the balance of the funds are to be released to the owner. A tenant may choose to voluntarily deposit funds into court during the pendency of the action and these funds will be treated by the clerk in the same manner. Courts have rejected the argument that the language in G.L. c. 239, § 8A, ¶ 4 means that possession cannot be awarded to an owner pending the correction of outstanding defects. See Sarno v. Ingalls, 2009 Mass. App. Div. 191.



In addition, under G.L. c. 239, § 8A, ¶ 5, which applies equally to conditions- and non-conditions-related defenses, there may be no recovery of possession if the amount found by the court to be due the landlord equals or is less than the amount found to be due the tenant or occupant by reason of any counterclaim or defense “under this section.” If the amount due the landlord is greater, there is no recovery of possession if the tenant or occupant, within one week of having received written no-tice from the court of the balance due, pays to the clerk the balance due the landlord, together with interest and costs of suit (if any), less any credit due the tenant or oc-cupant for funds already paid by him or her into court. No judgment for possession is to enter until after the expiration of the time for payment and the tenant has failed to make such payment. See Self v. Lawrence Dist. Ct., No. 9300022 (Mass. Jan. 22, 1993) (O’Connor, J.) (enjoining District Court practice of issuing execution to land-lord where tenant had made out G.L. c. 239, § 8A defense, without first sending ten-ant written notice of opportunity to pay balance due and waiting until time period elapsed before judgment entered for landlord). Some commentators believe that the cure provision requires that the tenant have been awarded some level of monetary damages to get a posttrial cure opportunity; others have indicated that if the tenant’s claims had colorable merit but ultimately did not prevail, this is sufficient to accord cure rights. See Avalon Oaks v. King, 2007 Mass. App. Div. 174 (not deciding issue).

While attorney fees will not affect the tenant’s damages or what the “cure” amount will be, see PGR Mgmt. Co. v. Credle, 427 Mass. 636 (1998); Sharma v. Johnson, 87 Mass. App. Ct. 1113 (2015) (Rule 1:28 decision), where the tenant has prevailed on a counterclaim that includes a statutory grant of attorney fees, such as a violation of G.L. c. 186, §§ 14, 15B, or 18, or G.L. c. 93A, the court ordinarily does not enter a final judgment until attorney fees have been determined and awarded.

Non-Conditions-Related Defenses and Counterclaims Under G.L. c. 239, § 8A

In General

Tenants also have a defense to eviction under G.L. c. 239, § 8A in a nonpayment or “no fault” eviction if they have “nonconditions” claims against their landlord arising out of the tenancy. There are two ways this can come into play:

• The tenant is in arrears on rent, and there are nonconditions claims, such as breach of the security deposit statute (G.L. c. 186, § 15B) for which the tenant may recover money damages. The damages are then applied against the rent owed by the tenant. If the damages are less than the rent owed by the tenant, the tenant can retain possession by paying the balance due within seven days of receipt of the court’s decision. If, on the other hand, the damages are greater than the rent owed, the tenant keeps possession outright, and the landlord must pay over the difference as damages on the tenant’s counterclaim.

• The tenant is not in arrears on rent, and there are nonconditions claims for which the tenant may recover money damages. Since there is no rent owed by the tenant, the tenant retains possession outright, and the landlord must pay the tenant damages on the counterclaim.



While non-conditions-related defenses under G.L. c. 239, § 8A are less common than conditions-related defenses, there are plenty of examples in the trial court. See, e.g., Tringali v. O’Leary, 2015 Mass. App. Div. 110 (security deposit violation as defense to possession); Dolben Co. v. Friedmann, 2008 Mass. App. Div. 1 (application fee charged to approved tenants violated G.L. c. 93A, where it was not authorized under G.L. c. 186, § 15B and no showing that all applicants were charged such a fee, but only approved tenants); Zimbovsky v. Tokar, 2005 Mass. App. Div. 100 (lease provi-sion barring children violated G.L. c. 186, § 16, entitling tenant to nominal damages under G.L. c. 93A); Meadowbrook Vill. Assocs. v. Feliciano, No. 89-SP-0225 (Worcester Housing Ct. Mar. 13, 1989) (Martin, J.); Jones v. Smalls, No. 02-SP-05266 (Boston Housing Ct. Feb. 21, 2003) (Chaplin, J.) (unlawful late penalties and security deposit violation; tenant can retain possession if balance paid after offset); 2-16 Hyde Park Ave. Ltd. P’ship v. Mazziota, No. 97-SP-4285 (Boston Housing Ct. Oct. 2, 1997) (Winik, J.) (tenant gets nominal damages under G.L. c. 93A, § 9 for landlord’s failure to pay interest on security deposit and retains possession); Howard v. Crawford, No. 97-SP-01207 (Boston Housing Ct. Apr. 1, 1997) (Winik, J.) (security deposit claim and retention of possession under G.L. c. 239, § 8A); Dileo v. Pitts, No. 86-SP-1391 (Worcester Housing Ct. Dec. 9, 1986) (Martin, J.) (same); Middle-ton v. Martin, No. 96-SP-05662 (Boston Housing Ct. Feb. 14, 1997) (Winik, J.) (retaliation under G.L. c. 186, § 18); J. Hunter Realty v. Gomes, No. 96-SP-02741 (Boston Housing Ct. Jan. 10, 1997) (Winik, J.) (violation of G.L. c. 93A). The issue whether a security deposit violation can be a basis for a defense to possession is likely to be determined by the Supreme Judicial Court in this term. See Meikle v. Nurse, No. 14-SP-2229 (Boston Housing Ct. July 10, 2014) (Muirhead, J.), appeal docketed, No. SJC-11859 (Mass. argued Nov. 5, 2015).

There may be cases where there is a non-conditions-related counterclaim under G.L. c. 186, § 14; this may also establish the basis for a defense under G.L. c. 239, § 8A. See Lawrence v. Osuagwu, 57 Mass. App. Ct. 60 (2003) (landlord who tried to force roommate on tenant deprived tenant of exclusive right of possession, reversing Hous-ing Court ruling that this was not a defense to the landlord’s claim for possession); Centeio v. Acevedo, No. 15-SP-2860 (Boston Housing Ct. July 24, 2015) (Muirhead, J.) (unwanted sexual advances); Kelly v. Jones & McDowell, No. 10-SP-0093 (Bos-ton Housing Ct. Feb. 23, 2010) (Muirhead, J.) (landlord discussed tenants’ private business with others in attempt to sabotage employment); Maple Commons v. McLane, No. 09-SP-0906 (Boston Housing Ct. Nov. 16, 2009; Feb. 24, 2010) (Muir-head, J.) (owner failed to properly investigate break-ins); Access Realty Corp. v. Martin, No. 04-CV-549 (Boston Housing Ct. Dec. 20, 2011; Feb. 22, 2012) (Muir-head, J.) (solicitation of sexual favors in exchange for landlord meeting statutory obligations); Corbett v. Dawson, No. 02-SP-03819 (Boston Housing Ct. Sept. 24, 2002) (Chaplin, J.) (breach of quiet enjoyment due to owner yelling at tenant and kicking on ceiling and door provided basis for offset defense under G.L. c. 239, § 8A, ¶ 5); Gadoury v. Labrie, No. 12-SP-2549 (Worcester Housing Ct. July 25, 2012) (Sullivan, J.) (barrage of harassment); Leung v. Drysdale, No. 02-SP-02812 (Boston Housing Ct. July 19, 2002) (Chaplin, J.) (landlord’s unauthorized entry into premises); Abraham v. Olivares, No. 02-SP-02224 (Boston Housing Ct. June 13, 2002) (Chaplin, J.) (landlord’s racial discrimination treated as breach of quiet enjoyment);



Mendes v. Teixeira, No. 97-SP-06630 (Boston Housing Ct. Mar. 27, 1998) (Winik, J.) (landlord’s wife assaulted tenant after tenant was in arrears—non-conditions-related breach of G.L. c. 186, § 14; tenant allowed to retain possession if balance of arrears paid after offset); Singleton v. Graham, No. 98-SP-0115 (Boston Housing Ct. Feb. 2, 1998) (Winik, J.) (landlord shut off tenant’s lights and water when she was in arrears—opportunity to retain possession by paying balance after offset); Heneghan v. Mendes, No. 94-SP-04266 (Boston Housing Ct. Dec. 14, 1994) (Smith, J.) (land-lord’s entry into premises without permission found breach of quiet enjoyment, offset to arrears, and G.L. c. 239, § 8A defense).

There may be cases where a tenant has both conditions- and non-conditions-related claims, but the tenant would not be able to establish a conditions-related defense under G.L. c. 239, § 8A because of noncompliance with the second paragraph of the statute. However, the tenant should still have a defense to possession, and an oppor-tunity to cure any remaining arrearage, so long as the non-conditions-related claim is valid. See, e.g., Creese v. Graham, No. 04-SP-2799 (Boston Housing Ct. Sept. 28, 2004) (Chaplin, J.) (failure to give proper notice of bank account within thirty days of receipt of security deposit; offset defense under G.L. c. 239, § 8A, ¶ 5); Jones v. Smalls, No. 03-SP-01458 (Boston Housing Ct. Aug. 22, 2003) (Winik, J.) (same, involving water shut-off due to owner nonpayment); Powell v. Thompson, No. 02-SP-00111 (Boston Housing Ct. Feb. 25, 2002) (Chaplin, J.) (no conditions defense be-cause tenant was already in arrears, but owner’s failure to pay water bill was a breach of quiet enjoyment, and since statutory damages exceeded rent arrears, tenant awarded judgment for possession); J. Hunter Realty v. Gomes, No. 96-SP-02741 (Boston Housing Ct. Jan. 10, 1997) (Winik, J.) (offset defense available because of landlord’s improper effort to implement a rent increase, in violation of G.L. c. 93A); Davis v. Rowe, No. 97-SP-01798 (Boston Housing Ct. July 7, 1997) (Winik, J.) (landlord took key deposit as security deposit without proper safeguards, entitling tenant to triple damages and right to retain possession if cure after offset).

Some trial courts have been troubled by the apparent sweep of the statute in granting a defense to possession for nonconditions claims, particularly where the tenant is being evicted for a no-fault reason. See, e.g., Soucey v. Eaton, No. 98-SP-02796 (Northeast Housing Ct. Oct. 16, 1998) (Kerman, J.); Golding v. Taylor, No. 97-SP-05289 (Boston Housing Ct. Nov. 25, 1997) (Daher, C.J.) (denying, without explana-tion, “nonconditions” defense to possession under G.L. c. 239, § 8A). However, in Lawrence v. Osuagwu, 57 Mass. App. Ct. 60 (2003), the Appeals Court reversed the Boston Housing Court and found that under the plain language of the statute a non-conditions counterclaim could establish a defense to possession under G.L. c. 239, § 8A. For other cases involving a defense with nonconditions claims to a no-fault eviction, see, for example, Mulvanity v. Pelletier, 40 Mass. App. Ct. 106 (1996); Hodge v. Klug, 33 Mass. App. Ct. 746 (1992); Bougioukas v. Burke, Summary Pro-cess No. 42893 (Boston Housing Ct. May 27, 1987) (King, J.).



Security Deposit and Last Month’s Rent Counterclaims (and Related Counter-claims Under G.L. c. 93A)

The most common non-conditions-related counterclaim asserted in summary process actions as a defense to possession is one for breach of security deposit or last month’s rent obligations under G.L. c. 186, § 15B. Certain breaches of security de-posit obligations entitle the tenant to damages of three times the deposit and any ac-crued interest, plus costs and reasonable attorney fees. Under G.L. c. 186, § 15B(7), these breaches include

• failure to place the security deposit in an interest-bearing bank account pro-tected from the claims of creditors (see G.L. c. 186, § 15B(6)(a)) (Such failure is not excused by the tenant’s alleged failure to provide identifying information needed for the bank account—such as a Social Security number—where the owner did not seek that information until after the thirty-day period or had other ways to meet statutory obligations. See Karaa v. Kuk Yim, 86 Mass. App. Ct. 714 (2014); Nieburgs v. Critelli, No. 10-SP-4002 (Western Housing Ct. Jan. 10, 2011) (Fields, J.).);

• failure to transfer the security deposit to a successor in interest, or for the suc-cessor in interest to take proper steps with regard to a security deposit for which he or she is liable (even if the successor in interest does not get the secur-ity deposit from the predecessor in interest) (see G.L. c. 186, § 15B(6)(d)); and

• failure to return the tenant’s deposit together with any interest owed within thirty days of the termination of occupancy (or to otherwise conform to the statute in the event amounts are deducted for repairs, and so forth) (see G.L. c. 186, § 15B(6)(e)).

The bank account holding the security deposit must be located within the Common-wealth. See Taylor v. Burke, 69 Mass. App. Ct. 77 (2007). Even technical violations can lead to liability. See Stacy v. Zhao, 2013 Mass. App. Div. 59 (failure to provide full account number and location).

Certain other violations of the security deposit statute, while not triggering treble damage liability, may constitute a violation of G.L. c. 93A. See, e.g., Carter v. Seto, 2005 Mass. App. Div. 62, aff’d on other grounds, 66 Mass. App. Ct. 1114 (2006) (Rule 1:28 opinion) (owner’s provision of statement about interest earned on security deposit through tax forms did not comply with statutory requirement that information about interest earned be provided upon anniversary of taking of deposit).

Where the tenant is still in occupancy, a precondition for the recovery of treble dam-ages is a demand for return of the deposit. See Castenholz v. Caira, 21 Mass. App. Ct. 758 (1986). However, filing a counterclaim raising the security deposit issue is a sufficient demand. If a landlord, who has failed to handle the deposit correctly, fails to respond to the counterclaim within a reasonable period of time by offering full tender of the security deposit and accrued interest, treble damages may result. See Karaa v. Kuk Yim, 86 Mass. App. Ct. 714 (2014) (no trebled damages where owner returned deposit before it became necessary to use legal process); Chen v. Cordero,



No. 97-SP-03414 (Boston Housing Ct. Nov. 17, 1997) (Winik, J.) (owner promptly returned security deposit, but did not tender accrued interest—not an adequate ten-der, and tenant entitled to damages of three times deposit plus interest, minus the amount already refunded). If the landlord prospectively places the security deposit in the right kind of account, instead of returning it, the landlord does not thereby pro-cure a sufficient cure under Castenholz and will be subjected to treble damages. See Brennan v. Tarsitano, No. 99-SP-01695 (Boston Housing Ct. June 23, 1999) (Winik, J.). Castenholz, however, has been held not to excuse noncompliance with statutory timeframes for the return of a deposit; in such a case, treble damages are appropriate even if the deposit is returned before any claim is made by the tenant. There may, however, be a question of how to construe the statutory phrase “the balance thereof to which the tenant is entitled”; this issue has not yet been addressed by the appellate courts. See Taylor v. Beaudry, 75 Mass. App. Ct. 411 (2009); Dolores v. Gustafson, 2009 Mass. App. Div. 267.

At least one appellate decision has determined that where an owner did not fulfill statutory obligations regarding the holding of a security deposit (not giving the tenant timely notice of the bank account), the tenant was entitled to both return of the de-posit and treble damages. See Lopes v. Williams, 2010 Mass. App. Div. 227.

Although G.L. c. 186, § 15B(5)(c) exempts a state or federally charted financial insti-tution from liability under the security deposit statute if it is a foreclosing mortgagee or mortgagee in possession, trial judges have differed as to whether this exemption applies to the purchaser at the foreclosure sale. Compare Cruz v. Cabrera, No. 92-SC-00074 (Northeast Housing Ct. Aug. 25, 1993) (Smith, J.) (no exemption for suc-cessors), and Mall Apartments Realty Trust v. Hernandez, No. 91-SC-1865 (Hamp-den Housing Ct. Mar. 16, 1992) (Abrashkin, J.) (same), with Deutsche Bank v. Cole & Vin, No. 11-CV-125 (Boston Housing Ct. Dec. 13, 2013) (Winik, F.J.) (where foreclosing bank was exempt from obligations regarding last month’s rent, so was successor in interest).

Other breaches of the statute (such as failure to give the tenant access to records about the security deposit; failure to provide the tenant with a written statement about the bank account where the deposit is held; or the use of a lease that conflicts with the security deposit statute) will not entitle the tenant to triple damages, but will entitle the tenant to request that the security deposit be returned. See G.L. c. 186, § 15B(2)(d), (3)(a), (6)(c). Other fees may also be found illegal under the statute. See Perry v. Equity Residential Mgmt., 2014 WL 4198850 (D. Mass. 2014) (application fee, amenity fee, pet fees); Hermida v. Archstone, 826 F. Supp. 2d 380 (D. Mass. 2011) (amenity fees); Equity Residential Mgmt. v. LeRoux, No. 12-SP-1735 (Boston Housing Ct. May 12, 2012) (Muirhead, J.) (amenity fees); Broad St. Assocs. v. Lev-ine, No. 12-SP-2041 (Northeast Housing Ct. July 30, 2012) (Kerman, J.) (application fee and monthly pet fees).

Owners are required to pay annual interest on both last month’s rent and security deposits. See G.L. c. 186, § 15B(2)(a) (last month’s rent); G.L. c. 186, § 15B(3)(b) (security deposit). In both cases, if the owner fails to pay or credit the interest within thirty days of the anniversary of the deposit, the tenant is entitled to deduct the interest



payment from the next rent payment. The statute further provides that if the interest is not paid on last month’s rent “within 30 days after the termination of tenancy,” the tenant is entitled to recover damages of three times the amount of interest owed, plus costs and reasonable attorney fees. See G.L. c. 186, § 15B(2)(a). For discussion, see Sacco v. Driouiche, No. 12-SP-1243 (Boston Housing Ct. Nov. 6, 2012) (Winik, F.J.). Some trial courts have found that failure to pay interest does not by itself con-stitute a counterclaim under G.L. c. 186, § 15B that can be used as a defense to pos-session, although it may act as an offset against rent obligations. See Mosley v. Morris, No. 98-SP-00129 (Boston Housing Ct. Jan. 30, 1998) (Winik, J.). But see M.J. Realty Trust v. Dinnocenzo, 2005 Mass. App. Div. 35 (awarding damages for failure to pay interest on last month’s rent and security deposit, and treble damages on security deposit balance not tendered in thirty days). If the landlord is engaged in trade or commerce, a failure to pay interest on the last month’s rent or security deposit may be found to be an unfair or deceptive act or practice under 940 C.M.R. § 3.17(4), and the unpaid interest may be trebled if the failure to pay interest was willful and inten-tional. See E & M Realty Corp. v. Holman, No. 98-SP-01046 (Boston Housing Ct. May 29, 1998) (Winik, J.) (interest on last month’s rent); 2-16 Hyde Park Ave. Ltd. P’ship v. Mazziota, No. 97-SP-04285 (Boston Housing Ct. Oct. 2, 1997) (Winik, J.) (interest on security deposit). If the owner does not show what rate of interest was earned, the court will award interest at the statutory rate of 5 percent. See Maple Commons v. McLane, No. 09-SP-0906 (Boston Housing Ct. Nov. 16, 2009; Feb. 24, 2010) (Muirhead, J.). Trial courts have rejected the argument that a no-interest ac-count may be used. See Gallo v. Marinelli, No. 15-SP-1469 (Boston Housing Ct. May 19, 2015; June 8, 2015) (Muirhead, J.).

A late fee provision in a lease may violate 940 C.M.R. § 10.03(2)(i) where there is no showing that the charge was reasonable in comparison to the owner’s costs and where the owner had a practice of applying rent payments first to late fees, resulting in further late fees. See Deep v. Tremblay, 81 Mass. App. Ct. 1131 (2012) (Rule 1:28 decision).

Cure (in Nonpayment Evictions)

If the tenant can show that, during the applicable cure period, he or she tendered or offered all rent then due (including interest or costs of suit, where this is applicable under the statute), and the landlord either refused the tender or took the tender but proceeded with the eviction, the tenant has a good defense to the eviction. See, e.g., Kazer v. Grazette, No. 02-SP-05808 (Boston Housing Ct. Jan. 16, 2003) (Chaplin, J.) (case dismissed where tenant-at-will received a fourteen-day notice that did not indi-cate she had ten days to cure, there was no evidence of a similar notice in the prior twelve months, and tenant paid full amount of rent due prior to answer date); Camacho v. Healey, No. 07-SP-0271 (Boston Housing Ct. Feb. 22, 2007) (Muirhead, J.) (if timely cure offered and refused, action should be dismissed). No costs are owed to the landlord if the tenant cures the nonpayment before the landlord has en-tered the summary process action. See Commonwealth v. Chatham Dev. Co., 49 Mass. App. Ct. 525 (2000). The landlord should promptly notify the tenant if a cure is inadequate because it does not include costs or interest; without such notice, the



cure is likely to be found sufficient. See Maloney Props. v. Woodard, No. 08-SP-0461 (Boston Housing Ct. Apr. 29, 2008) (Winik, J.).

Where the landlord has refused payment, the tenant has not neglected or refused to pay the rent due, within the meaning of G.L. c. 186, § 11 or 12. See Yoffe v. Krasnow Wool Stock Co., 322 Mass. 211, 213 (1948); Francois v. Pierre, No. 97-SP-02612 (Boston Housing Ct. June 30, 1997) (Winik, J.) (where landlord failed to accept rent within cure period after fourteen-day notice, landlord could not make out prima facie case). Moreover, a refusal to accept payment may also be deemed retaliation if the tenant has engaged in protected activity, such as calling the board of health. See, e.g., Sayer v. Dalton, No. 03-SP-01148 (Boston Housing Ct. June 26, 2003) (Pierce, J.) (tenant offered rent before fourteen-day notice to quit issued and owner refused it because of tenant’s code enforcement complaint; eviction found retaliatory under G.L. c. 239, § 2A). If the landlord refused the tender, it is likely that the trial court will require a new tender in order to avert eviction, i.e., a tenant must be prepared to make the payment.

A notice to quit for nonpayment of rent that includes both rent due and late payment charges may be defective, since the late payment charges are not rent and cannot be pursued in a summary process action. See G.L. c. 239, § 2 (owner’s claims limited to those for possession and rent or use and occupancy); Deep v. Tatro, No. 08-SP-2658 (Western Housing Ct. Nov. 17, 2008) (Fein, J.). Moreover, late payment charges can be recovered only if there is a written agreement providing for them and the rent is more than thirty days overdue. See G.L. c. 186, § 15B(1)(c); Harris v. Wilson, 09-SP-0177 (Boston Housing Ct. Jan. 28, 2009) (Muirhead, J.). Unlawful assessment of late payment charges may lead to liability under G.L. c. 93A. See Halabi v. Suriel, No. 09-SP-3831 (Boston Housing Ct. Oct. 19, 2009) (Muirhead, J.).

There may be cases where the tenant’s initial tender appears to be insufficient but turns out, due to changed circumstances, to have been proper. See Weeks v. McGhee, No. 03-SP-1336 (Boston Housing Ct. July 15, 2004) (Pierce, J.) (although initial tender was deemed insufficient and returned by landlord, subsequent adjustment of Section 8 subsidy meant that tender was sufficient and tenant had effected cure).

Practice Note The landlord should hold on to the original tender to see if it is sufficient when combined with any other funds received or adjustments made dur-ing the cure period. If the landlord has returned the initial tender only to find out that subsequent events have made it sufficient, the landlord should give the tenant the opportunity to make the tender again.

An offer of funds from third parties should be considered a sufficient tender, so long as (1) the funds will be immediately available and (2) the funds, either taken by themselves or in combination with other funds from the tenant, are sufficient to cover the arrearage. See Federal Mgmt. Co. v. Neal, Middlesex Super. Ct. Civil No. 93-6007 (Feb. 24, 1994) (Zobel, J.). A landlord’s refusal to accept a cure due to its source from public assistance or the requirements of such a program would be un-lawful discrimination under G.L. c. 151B, § 4(10), and might also be a violation of



G.L. c. 93A, § 2, unless the landlord can show a good faith nondiscriminatory reason for refusing this assistance. See DiLiddo v. Oxford St. Realty, Inc., 450 Mass. 66 (2007). Thus, for example, if a program required that the landlord provide a taxpayer identification number before it could pay assistance, this is likely an appropriate re-quirement. If, on the other hand, the program were to require the landlord to dismiss an eviction as a precondition for payment in circumstances where the landlord would not normally have to do so (for example, where there was only a partial cure), the owner could lawfully refuse, but could offer instead to enter into an agreement for reinstatement of the tenancy after the full balance is paid or after a reasonable proba-tionary period.

If a tenant is being evicted for nonpayment and the neglect or refusal to pay the rent due was caused by a failure or delay of the federal government, the Commonwealth, or any municipality, or any departments, agencies, or authorities thereof, in the mail-ing or delivery of any subsistence or rental payment, check, or voucher (other than a salary payment) to either the landlord or the tenant, the court should continue the hearing in the eviction case for at least seven days in order to furnish notice of the eviction to the appropriate agency. If all rent due, with interest and costs of suit, has been tendered to the landlord within the continuance period, the court should treat the tenancy as not having been terminated. See G.L. c. 186, §§ 11, 12.

Retaliation

It is a defense to recovery of possession if a landlord commences a summary process action, or terminates a tenancy, in response to the tenant’s exercise of one or more of a set of specifically protected rights enumerated in G.L. c. 239, § 2A. These include the following:

• the act of commencing, proceeding with, or obtaining relief in any judicial or administrative action, the purpose of which action was to obtain damages un-der or otherwise to enforce any federal, state, or local law, regulation, bylaw, or ordinance, which has as its objective the regulation of residential premises (this may include obtaining a harassment prevention order under G.L. c. 258E, see Walker v. Lewis, No. 14-SP-5223 (Boston Housing Ct. Feb. 4, 2015) (Muirhead, J.));

• the exercise of rights under G.L. c. 164, § 124D (paying projected gas or elec-tric utility bills where the owner has failed to pay such bills and the tenant is threatened with termination of service);

• reporting a violation or suspected violation of law to a board of health or simi-lar code enforcement agency, or reporting or complaining of such violation or suspected violation in writing to the landlord or the agency of the landlord;

• organizing or joining a tenants’ union or similar organization; and

• making, or expressing an intention to make, a payment of rent to an organiza-tion of condominium unit owners pursuant to G.L. c. 183A, § 6(c) (where the owner of the individual condominium unit has not been paying common area charges and assessments to such owners’ organization).



Courts have found that a former owner has no right to a defense under G.L. c. 239, § 2A, absent creation of a postforeclosure tenancy. See Franklin Mortgage Asset Trust v. Langston, No. 10-SP-1151 (Boston Housing Ct. Sept. 3, 2010; Nov. 18, 2010) (Muirhead, J.); FNMA v. Diaz, No. 11-SP-704 (Boston Housing Ct. May 1, 2012) (Winik, F.J.). The statute also provides no protection against an employee discharged for testifying on behalf of a tenant. See Groom v. Ortiz, No. 12-SP-692 (Boston Housing Ct. Mar. 12, 2012) (Muirhead, J.).

General Laws c. 239, § 2A contains a rebuttable presumption of retaliation if the landlord sends the tenant a notice to quit, commences a summary process action, or materially alters the terms of the tenancy within six months of the tenant’s exercising of such rights or within six months after any other person has taken such action or actions on behalf of the tenant or relating to the building in which the tenant resides. This presumption applies even if the eviction is for nonpayment of rent. Contrast this with the related counterclaim for retaliation under G.L. c. 186, § 18, which does not include such a presumption where the tenancy has been terminated for nonpayment of rent. See Xiaobing Xin v. King, 87 Mass. App. Ct. 1126 (2015) (Rule 1:28 deci-sion) (error to apply presumption to counterclaim where eviction was for nonpay-ment of rent); Rothman v. Begley, 2000 Mass. App. Div. 280; Adams v. Sisco, No. 10-SP-2213 (Boston Housing Ct. Aug. 9, 2010) (Muirhead, J.); Green v. Brantly, No. 88-SP-7441-IO (Hampden Housing Ct. Sept. 22, 1988) (Abrashkin, J.); Amiff Hous. Assocs. v. Womack, Summary Process No. 36621 (Boston Housing Ct. Dec. 11, 1985) (King, J.). However, if the tenant successfully asserts a defense under G.L. c. 239, § 8A as well, then the tenant may win on the counterclaim, even absent the presumption. See Avalon Realty v. Martinez, No. 90-SP-2533 (Hampden Housing Ct. Nov. 28, 1990) (Abrashkin, J.); Gray v. Rios, No. 89-SP-9144-S (Hampden Housing Ct. Mar. 3, 1990) (Abrashkin, J.).

The presumption of retaliation may be overcome only by clear and convincing evi-dence that such action was not a reprisal against the tenant and that the landlord 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 the action was taken even if the tenant had not commenced any legal action, made such report, or engaged in such protected activity.

Practice Note To overcome a presumption of retaliation, a landlord must meet a heavy evidentiary burden. If the landlord fails to introduce evidence regarding its motive for initiating an eviction action after a tenant has engaged in protected activity, the tenant should prevail on the defense. See Ja-blonski v. Clemons, 60 Mass. App. Ct. 473 (2004).

In most cases a tenant who has an affirmative defense to possession under G.L. c. 239, § 2A will also have a counterclaim for damages under G.L. c. 186, § 18. If the tenant prevails on his or her counterclaim, the tenant will recover between one and three months’ rent, or actual damages, whichever is greater, plus reasonable at-torney fees and costs of the action. If the tenancy is subsidized, the statutory damages are determined based on the full contract rent, not the tenant’s subsidized portion of



the rent. See, e.g., Weekes v. McGhee, No. 02-SP-03132 (Boston Housing Ct. Aug. 14, 2002) (Winik, J.).

A tenant who is being evicted for “fault” may assert a defense under G.L. c. 239, § 2A because this defense exists independently of the tenant’s right to raise defenses and counterclaims under G.L. c. 239, § 8A. In some instances the trial court deter-mines that the related retaliation counterclaim under G.L. c. 186, § 18 should be heard with the case in the interest of judicial economy; in others, the court severs and tries the counterclaim separately because of additional elements that may need to be proven for the counterclaim that will not be involved in the defense. See Urban Edge Prop. Mgmt. v. Garcia-Perez, No. 05-SP-02436 (Boston Housing Ct. Sept. 13, 2005) (Winik, J.).

In many nonpayment cases where the tenant has a defense under G.L. c. 239, § 8A, the tenant will also have a retaliation defense and counterclaim. See G.L. c. 239, § 8A, ¶ 6 (specifically making G.L. c. 186, § 18 applicable to tenants invoking the statute); Independent Realty Mgmt. v. Corin & Burditt, No. 01-SP-04238 (Boston Housing Ct. Oct. 19, 2001) (Winik, J.) (retaliation found where, at time notice to quit served, landlord knew all conditions in inspection report had not been fixed and ten-ant had been withholding rent in part for this reason); Gray v. Rios, No. 9144-T-S (Hampden Housing Ct. Mar. 27, 1990) (Abrashkin, J.). However, there may be cases where there is no defense under G.L. c. 239, § 8A but there is a defense under G.L. c. 239, § 2A. See, e.g., Michel v. Monfiston, No. 06-SP-1613 (Boston Housing Ct. June 21, 2006) (Winik, J.).

A retaliation defense is not limited to substandard conditions in the premises. In Sco-field v. Berman & Sons, Inc., 393 Mass. 95 (1984), it was applied to a situation where the tenant had complained about violations of rent control laws. The court found that the landlord had engaged in unlawful reprisals by not allowing the tenant to remain as a tenant-at-will after the lease had expired, contrary to its general practice with other residents.

If the tenant first makes a complaint about substandard conditions after service of a notice to quit for nonpayment, the tenant may not be entitled to a retaliation defense or counterclaim or the landlord may be successful in rebutting the presumption. See Barretto-Morse v. Laiacona, 2014 Mass. App. Div. 141; Copley Mgmt. & Dev. Corp. v. Ramos, Summary Process No. 48202 (Boston Housing Ct. June 14, 1989) (King, J.); Koulax v. Menzinigian, No. 86-SP-1418 (Worcester Housing Ct. Dec. 12, 1986) (Martin, J.). Similarly, if a landlord can show that a notice to quit was in process prior to receipt of a board of health complaint, the landlord may be able to rebut the pre-sumption of retaliation that exists because the complaint was received by the land-lord before the tenant received the notice to quit. See Jones v. Bruce, No. 99-SP-04891 (Boston Housing Ct. Oct. 12, 1999) (Winik, J.).

A landlord must act in a consistent manner in order to rebut the presumption of retal-iation. Thus, in Joyston Realty Properties, Inc. v. Evans, No. 96-SP-01957 (Boston Housing Ct. Oct. 1, 1996) (Winik, J.), where a landlord commenced eviction after the tenant refused his offer of a new tenancy at an increased rental, the tenant prevailed



on a conditions-related defense under G.L. c. 239, § 8A. After repairs were completed, the landlord brought a second action. In this action, however, the landlord no longer claimed that he wanted a higher rent, but simply wanted the tenant out. The court found that the second eviction was retaliatory, since the grounds for eviction had shifted. See also Stacy v. Zhao, 2013 Mass. App. Div. 59 (landlord showed independ-ent justification for action but did not show that in fact it would have proceeded in the same way and at the same time—remand required).

There may be cases where the presumption of retaliation does not apply, but the ten-ant is nonetheless able to make out a case of retaliation for both an affirmative de-fense to possession and a retaliation counterclaim. Thus, in Copley Management & Development Corp. v. Gaut, No. 96-SP-05808 (Boston Housing Ct. Jan. 22, 1997) (Winik, J.), the tenant made out a defense under G.L. c. 239, § 2A, but there was no presumption of retaliation under G.L. c. 186, § 18, as it was a nonpayment eviction. The court found that the tenant had shown by a preponderance of the evidence that the landlord’s motivation was retaliatory, and therefore granted damages on the coun-terclaim. See also Samuels v. Vazquez, No. 00-SP-01072 (Boston Housing Ct. Apr. 11, 2000) (Winik, J.).

In an unusual case, the tenant did not have a defense under G.L. c. 239, § 2A, but did have a counterclaim under G.L. c. 186, § 18, and was able to retain possession under the nonconditions aspect of G.L. c. 239, § 8A. The landlord served a notice to quit after a tenant, who was in arrears, complained about conditions. The court found that the landlord’s failure to investigate the merits of the tenant’s complaint before serv-ing the notice to quit was retaliatory. However, since the eviction case was based on a second fourteen-day notice that the landlord sent after the conditions were repaired, the eviction action itself was not retaliatory. The tenant was given the opportunity to cure the arrearage after offset for the retaliation claim. See Middleton v. Martin, No. 96-SP-05662 (Boston Housing Ct. Feb. 14, 1997) (Winik, J.).

There may be some cases where the premises have extensive code violations, but the landlord can rebut the presumption of retaliation. Thus, in Brown v. Sewell, 14 Mass. App. Ct. 970 (1982), the Appeals Court found there was no retaliation where the landlord had not intended to act in retaliation for the report of code violations, but had reluctantly come to the conclusion that the only way to relieve himself of the recurring task of patchwork repairs was to have the premises vacated and do substan-tial rehabilitation. This is only likely to succeed, however, if the defective conditions are substantial. See Lapierre, Inc. v. Morse, No. 85-SP-0047 (Worcester Housing Ct. Jan. 17, 1986) (Martin, J.).

Discrimination

Discrimination Claims in General

In Massachusetts it is illegal for a landlord to discriminate against a tenant based on race, religious creed, color, national origin, sex, sexual orientation, age, ancestry, marital status, familial status (i.e., because of the presence of minor children), handi-cap, veteran or military status, or because of the receipt of public or rental assistance



or the requirements associated with such assistance. G.L. c. 151B, § 4(10); DiLiddo v. Oxford St. Realty, Inc., 450 Mass. 66 (2007). Discrimination in renting residential property based on race, color, religion, gender, familial status, handicap, or national origin is also prohibited by the federal Fair Housing Act (42 U.S.C. § 3601 et seq.). For landlords who receive federal grants in some form, discrimination based on handicap is barred by Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794).

Discrimination, or failure to reasonably accommodate a tenant with a disability, may be raised as an affirmative defense to eviction and as a counterclaim. See Boston Hous. Auth. v. Bridgewaters, 452 Mass. 833 (2009); Andover Hous. Auth. v. Shkolnik, 443 Mass. 300 (2005); City Wide Assocs. v. Penfield, 409 Mass. 140 (1991); Whittier Terrace Assocs. v. Hampshire, 26 Mass. App. Ct. 1020 (1989). A tenant who is being evicted for “fault” may assert a discrimination or reasonable accommodation defense under state or federal law because this defense exists independently of the tenant’s right to raise defenses and counterclaims under G.L. c. 239, § 8A. The trial court may determine that any related counterclaim should be heard with the case in the interest of judicial economy, or it may sever and try the counterclaim separately be-cause of additional elements that may need to be proven for the counterclaim that will not be involved in the defense. See Urban Edge Prop. Mgmt. v. Garcia-Perez, No. 05-SP-02436 (Boston Housing Ct. Sept. 13, 2005) (Winik, J.) (counterclaim would require proof of intent, injury, causation, and damages not involved in the de-fense). Unlike employment discrimination claims, there is no requirement to exhaust administrative procedures at the Massachusetts Commission Against Discrimination (MCAD). See G.L. c. 151B, § 9; Weir v. Johnson, No. SP-2570-S87 (Hampden Housing Ct. Apr. 15, 1988) (Abrashkin, J.). However, the burden is on the tenant to prove a prima facie case of discrimination. The burden of production (but not the ultimate burden of persuasion) then shifts to the landlord to prove that the challenged act was not discriminatory.

If a tenant filed a discrimination complaint with an administrative agency prior to commencement of the eviction and the complaint is relevant to the eviction, the ten-ant must elect whether to continue to raise the claim administratively or to dismiss it without prejudice and assert it as a defense in the summary process action. The ten-ant can seek to stay the eviction pending the administrative agency’s action on the complaint, but the court may be unwilling to do so, particularly if it appears that this will be a drawn-out process. See South Boston Non-Profit Hous. Corp. v. Reynolds, No. 99-SP-04304 (Boston Housing Ct. May 5, 2000) (Winik, J.).

A relatively common claim is that the landlord discriminated against the tenant based on the receipt of public or rental assistance, or the requirements associated with such a program. Examples of this may include backing out of a Section 8 lease, or refus-ing to renew a Section 8 lease without a legitimate business justification or refusal to accept public assistance payments. See Cruz Mgmt. Co. v. Vaughan, No. 92-SP-00209 (Boston Housing Ct. Sept. 23, 1992) (Smith, J.); Chicopee Hous. Auth. v. Knapp, No. 88-SP-5526-C (Hampden Housing Ct. June 8, 1988) (Abrashkin, J.) (re-fusal to accept vendor payments); Bushee v. Wherrity, Summary Process No. 86-SP-0458 (Worcester Housing Ct. July 29, 1986) (Martin, J.); McDonagh v. Wible, Sum-mary Process No. 36012 (Boston Housing Ct. July 12, 1985) (Martin, J.); see also



Lengieza v. Popko, No. 84-SPR-0058 (MCAD 1985) (probable cause finding); Dupont v. White, No. 82-WPR-0052 (MCAD 1983) (same).

Discrimination claims may also be raised in conjunction with an owner’s action against a victim of domestic violence to the extent there may be gender discrimina-tion. See, e.g., Bouley v. Young-Sabourin, 394 F. Supp. 2d 615 (D. Vt. 2005).

Damages awarded for discriminatory conduct can be used to offset a rent arrearage and establish a defense to possession under G.L. c. 239, § 8A. For examples, see Kachadorian v. Larson, 87 Mass. App. Ct. 1111 (2015) (Rule 1:28 decision) (tenant established Section 8A defense because owner knew of infestation of rodents before tenant was in arrears, and balance of $2,240 due after 10 percent abatement—owner’s refusal to accept arrearage assistance after he discovered tenant was HIV-positive violated state and federal fair housing laws, entitling tenant to $10,000 in compensatory damages; evidence was insufficient to support claim under Chapter 93A). They can also be used in a no-fault termination of tenancy. See Senkowski v. Kanyabigo, No. 11-SP-1212 (Worcester Housing Ct. Sept. 21, 2011) (Horan, F.J.) (in addition to quiet enjoyment and G.L. c. 93A claims for entry of premises without permission, owner violated G.L. c. 151B, § 4(7B) and 42 U.S.C. § 3604(c) by dis-criminatory statements about presence of children, entitling tenant to $15,000 in compensatory damages; owner defeated tenant’s claim of violation of G.L. c. 151B, § 4(11) inasmuch as Sanitary Code square footage requirements would not be met if children were added to household).

Reasonable Accommodation for Persons with Disabilities

In cases where the tenant is claiming that the landlord failed to reasonably accom-modate his or her disability, the tenant will need to link the disability to behavior that is the subject of the eviction; even once the link is demonstrated, the tenant may need to show, if the prior history of treatment is unsuccessful, why the accommodation will be likely to alleviate problems in the future. See Franklin Co. v. Sharp, No. 99-SP-04566 (Boston Housing Ct. Oct. 13, 1999) (Daher, C.J.). The court may require that the plan for reasonable accommodation be relatively detailed. See Boston Aging Concerns—Young & Old United v. Derenne, No. 95-SP-03019 (Boston Housing Ct. Nov. 27, 1995) (Winik, J.). If the issue of reasonable accommodation is asserted but is not in the answer, the court may require amendment of the pleadings. See Cornu Mgmt. v. Olson, No. 08-SP-4094 (Boston Housing Ct. Jan. 8, 2009) (Winik, J.). The court may require the tenant to provide information both as to the need for the ac-commodation and as to whether it is reasonable. See Community Builders, Inc. v. Mahoney, No. 09-SP-3076 (Boston Housing Ct. June 1, 2010; Aug. 17, 2010) (Muirhead, J.).

Once the tenant has identified the need for a reasonable accommodation, the parties should engage in an interactive process; this is the optimal way to explore the scope of the tenant’s alleged handicap, as well as the availability and feasibility of the vari-ous accommodations. If the landlord attempts to engage in an interactive process, but the accommodation sought by the tenant is not reasonable, relief may be denied. Andover Hous. Auth. v. Shkolnik, 443 Mass. 300, 308–09 (2005); see also Taurus at



Fountain Hill v. Talbert-Washington, No. 08-SP-3099 (Boston Housing Ct. Jan. 12, 2009) (Winik, J.) (repayment period of ten to thirteen years would be longer than Bankruptcy Code, which limits period to thirty-six to sixty months). If the tenant’s original request for reasonable accommodation was unduly narrow, the parties should explore what other accommodations may be effective. See Cobble Hill Apartments v. McLaughlin, 1999 Mass. App. Div. 166.

In certain instances, tenants with disabilities who may pose a risk to the health or safety of the development due to their violent propensities may not be entitled to fair housing protections. Before coming to this conclusion, the landlord should first ex-amine whether a reasonable accommodation might eliminate the offensive behavior. See Boston Hous. Auth. v. Bridgewaters, 452 Mass. 833 (2009). The parties may be creative in developing reasonable accommodation plans to solve a problem, such as through use of medication or counseling, intervention of third parties, transfer, instal-lation of carpeting, or the use of cleaning services. See, e.g., Raimondi v. Andrew, No. 01-SP-0064 (Boston Housing Ct. Oct. 24, 2001) (Chaplin, J.) (larger shower stall needed for obese schizophrenic). There may be cases, however, where the proposed accommodation would impose an undue hardship or burden. See Rakuz v. Spunt, 39 Mass. App. Ct. 171 (1995). A reasonable accommodation does not require a landlord to permit the sale of illegal drugs on his or her property. See Peabody Props., Inc. v. Sherman, 418 Mass. 603 (1994).

A reasonable accommodation defense or counterclaim may be part of a post-foreclosure eviction, such as where there is a request to extend the period to accept a tenancy offer due to disability. However, a request to rent the unit for below market rent (due to inability to work) would not be a required accommodation, and must be distinguished from one where a proffered subsidy might give the defendant the abil-ity to cover the rent. See FNMA v. Gomez, No. 12-SP-1497 (Boston Housing Ct. June 23, 2014) (Winik, F.J.).

Judges have considered reasonable accommodation in conjunction with the land-lord’s motion to issue execution under G.L. c. 239, § 10. See, e.g., MB Mgmt. Co. v. Mercado, 79 Mass. App. Ct. 1120 (2011) (Rule 1:28 decision). However, if no nexus is shown between the disability and the breach, or if there is no showing that the breach will be remedied, relief will be denied. See Boston Hous. Auth. v. Jones, No. 09-SP-0133 (Boston Housing Ct. Feb. 8, 2010) (Muirhead, J.).

De Minimis Lease Violations; Prevention of Forfeiture

A leasehold is considered a valuable property right. Therefore, courts generally are reluctant to destroy this right if the breach of a lease is “de minimis,” particularly if a subsidized tenancy is involved. See Leominster v. Holden, No. 88-SP-0036 (Worces-ter Housing Ct. Feb. 10, 1988) (Martin, J.); Audette v. Gleason, No. 86-SP-0001 (Worcester Housing Ct. Jan. 17, 1987) (Martin, J.); Sargeant W. Apartments v. Ayala, No. SP-8054-H86 (Worcester Housing Ct. Apr. 9, 1986) (Martin, J.). However, the court may find that repeated minor violations of the lease are sufficient to justify eviction.



Under the equitable doctrine of prevention of forfeiture, trial courts may determine that although eviction could be authorized, the court should shape a different remedy that protects both parties’ interests, particularly where the reasons for the eviction are not substantial or where the harm to the landlord can be undone. See In re 29 New-bury St., Inc., 856 F.2d 424 (1st Cir. 1988); Howard D. Johnson Co. v. Madigan, 361 Mass. 454 (1972); Eno Sys. v. Eno, 311 Mass. 334 (1942); Mactier v. Osborn, 146 Mass. 399 (1888). Although these cases involve commercial rather than residential settings, most trial courts, as a practical matter, will seek to preserve, rather than eliminate, tenancies. Thus, for example, if the tenant owes a small amount of rent and is willing and able to pay it, but did not cure for a technical reason that the court considers to not be the tenant’s fault, the court may allow a “late” cure. See Cheuk v. Chase, No. 03-SP-02369 (Boston Housing Ct. July 8, 2003) (Winik, J.). Other exam-ples include Cruz Management v. Celado, No. 09-SP-2567 (Boston Housing Ct. Aug. 19, 2009) (Winik, J.) (subsidized tenant mistakenly thought could list children as household members for whom there was only weekend custody; allowed to cor-rect recertification but required to move to smaller unit); Father Martin Cooperative Homes v. Berry, No. 02-SP-00248 (Boston Housing Ct. Oct. 15, 2002) (Edwards, J.) (noise monitoring and complaint response procedure); Diletizia v. Mackie, No. 01-SP-05825 (Boston Housing Ct. Jan. 4, 2002) (Winik, J.) (where Section 8 tenant’s failure to pay was due to illness and husband had recently returned to work, court would deny eviction if tenant pays landlord’s costs, catches up on back rent within a few weeks, and stays current for a period thereafter); The Community Builders, Inc. v. Scarcella, No. 11-SP-1756 (Boston Housing Ct. July 20, 2011) (Muirhead, J.) (ex-clusion of wrongdoing household member); Chicopee Housing Authority v. Maldo-nado, No. SP-2682-C87 (Hampden Housing Ct. May 27, 1987) (Abrashkin, J.) (repayment of underpaid subsidy, rather than eviction); Rogerson House, Inc. v. O’Brien, Summary Process No. 33105 (Boston Housing Ct. Nov. 5, 1984) (removal of dog); Maloney Props., Inc. v. Simon, No. 96-SP-00174 (Boston Housing Ct. May 24, 1996) (Winik, J.) (agreement to terms regarding guests); and Benchmark Apartment Management v. Williams, No. 96-SP-02621 (Boston Housing Ct. June 3, 1996) (Winik, J.) (tenant could remove stereo and remain in possession; if stereo not removed, landlord entitled to possession). In some cases the trial court may not ex-plicitly reference equitable antiforfeiture, but merely find that the conduct com-plained of does not rise to the level of a lease breach. See, e.g., Williams v. Kendricks, No. 15-SP-3144 (Boston Housing Ct. Aug. 25, 2015) (children’s damage to door did not constitute destruction of property).

Trial courts, however, cannot use this discretion when the claim is one of breach of an agreement for judgment and a motion to issue execution under G.L. c. 239, § 10; instead, the court’s role is limited to determining if there has been a material breach of a substantial term of the agreement. The court does not have the authority, absent the parties’ consent, to alter or amend their agreement for judgment. See Boston Hous. Auth. v. Cassio, 428 Mass. 112 (1998). However, in evaluating a motion to issue exe-cution where the tenant has raised issues of reasonable accommodation, the court is not limited to consideration of the agreement but can consider the request as well. See MB Mgmt. Co. v. Mercado, 79 Mass. App. Ct. 1120 (2011) (Rule 1:28 decision).



Judicial Commentary “Massachusetts courts have provided relief against such forfeitures where the lessee’s violation of a lease either resulted in no harm to the lessor or where a solution short of forfeiture would put the lessor in the same position as if no breach had occurred.” E. George Daher & Harvey Chopp, Landlord and Tenant Law (33A Massachusetts Practice Series) § 16:50 (West 3d ed. 2000 & Supp. 2012) (footnote omitted).

Particular Issues in “Fault” Evictions Related to Criminal Activity

A “fault” eviction may be based on conduct that is regarded as criminal activity. The standard for eviction is not “beyond a reasonable doubt” as it would be in a criminal action. Nor is it necessary for the landlord to establish that there was a conviction; all that is necessary is that the landlord show that it is more likely than not that the ten-ant, a household member, or a guest engaged in misconduct that would be deemed criminal and would be a violation of the lease or rental agreement.

Self-Incrimination; Use of Criminal Disposition

If an eviction case is pending at the same time as a criminal case, the tenant may wish to assert the Fifth Amendment privilege and the protection under Article XII of the Massachusetts Declaration of Rights against self-incrimination, file a motion seeking to continue the eviction case until after the criminal matter has been re-solved, or both. The tenant has no right to such a continuance, however. If the land-lord proceeds before the criminal case concludes, the landlord must establish the actual facts of the alleged criminal activity; he or she cannot simply present evidence that an arrest was made or that a police investigation was undertaken. A court may, however, draw an adverse inference in the eviction action from the party’s failure to testify. See Boston Hous. Auth. v. Estate of Abanar, No. 04-SP-04258 (Boston Hous-ing Ct. May 13, 2005) (Pierce, J.) (citing Lentz v. Metro. Prop. & Cas. Ins. Co., 437 Mass. 23 (2002)). For properties receiving federal or state assistance, the regulations have been changed to state explicitly that such an eviction can be brought even if the resident or household member has not been arrested for the alleged activity and even if there has not been a criminal conviction. 24 C.F.R. §§ 5.850–.852, 5.858–.861, 5.901, 5.903, 5.905.

If the criminal case has concluded, the landlord may use the disposition of the crimi-nal action against the tenant (including a plea bargain and related admissions, such as the common “admission to sufficient facts and continuance without a finding”) by means of either estoppel or admission. The tenant is not allowed to relitigate matters decided in the criminal case. If there was a plea, however, the tenant has the right to explain why the plea was entered. See Peabody Props., Inc. v. Sherman, 418 Mass. 603 (1994); Aetna Cas. & Sur. Co. v. Niziolek, 395 Mass. 737 (1985).

Practice Note General Laws c. 119, § 60 usually imposes a bar against the use of ju-venile records in other proceedings.



Allegations of Assault

In a “fault” eviction the landlord may claim that the tenant engaged in an assault. To make out a prima facie case, the owner must show that the tenant’s actions were rea-sonably calculated to place another in imminent fear of bodily injury. See Common-wealth v. Matsos, 421 Mass. 391 (1995). The tenant may claim in defense that use of force was justified, such as is the case where a trespasser enters the tenant’s apart-ment and does not leave upon request. See Gosselin v. Silver, 301 Mass. 481 (1938). Alternatively, the tenant may assert that he or she was acting in self-defense or to protect another from violence. The tenant must show, however, that the use of force was reasonable and that he or she had a reasonable belief that the actions were neces-sary for self-protection or the protection of another. See Commonwealth v. Cataldo, 423 Mass. 318 (1996); Commonwealth v. Yazbeck, 31 Mass. App. Ct. 769 (1992). A self-defense claim is not available if the tenant had an opportunity to withdraw and avoid violence but did not do so; if the tenant withdraws from the conflict but later is threatened with bodily harm, the defense is available again. See Commonwealth v. Naylor, 407 Mass. 333 (1990); Commonwealth v. Harris, 376 Mass. 201 (1978).

Suppression of Evidence Arising from Illegal Search; Establishing Presence of Illegal Drugs

Where a “fault” eviction is based on a police search or seizure, the tenant may claim that the evidence is tainted as a result of an illegal search and thus should be sup-pressed. See Boston Hous. Auth. v. Guirola, 410 Mass. 820 (1991) (identifying as an issue, but not deciding, whether criminal exclusionary rule applies to eviction pro-ceedings). Some courts have indicated that such a request must be filed prior to trial in the form of a motion in limine. See Hollywood Park Assocs. v. Morales, No. 89-S-1176-S (Hampden Housing Ct. Mar. 21, 1990) (Abrashkin, J.) (also discussing whether valid consent was obtained prior to search).

For recent cases addressing application of the exclusionary rule, compare Boston Housing Authority v. Andrews, No. 05-SP-01781 (Boston Housing Ct. Feb. 28, 2006) (Pierce, C.J.) (finding the exclusionary rule applicable to “summary process actions brought by a public housing authorit[y] . . . , at least where judicial integrity is com-promised because the [authority] is allegedly attempting to profit from its own wrongdoing or the wrongdoing of one of its employees or agents”), and Lowell Housing Authority v. Martinez, No. 05-SP-00448 (Sept. 8, 2005) (applying exclu-sionary rule where search “was conducted by police officers assigned to and acting under the direction of the Lowell Housing Authority”), with CMJ Management Co. v. Nunes, No. 04-SP-01682 (Boston Housing Ct. Sept. 23, 2004) (Winik, J.) (citing Kelly v. Civil Serv. Comm’n, 427 Mass. 75 (1998)) (declining to apply exclusionary rule where the city’s “only connection to [the] case” was its criminal investigation and where “it cannot be reasonably argued that the [city] will profit from its own wrongdoing if the seized evidence is used in this summary process action”).

Occasionally there is an issue as to whether a substance found on the premises or in the possession of the tenant or a household member or guest is an illegal drug. While this is often addressed through a certified state laboratory report, proof that a substance



is a particular drug need not be made by chemical analysis and may be made by cir-cumstantial evidence. See Commonwealth v. Dawson, 399 Mass. 465 (1987). How-ever, witness testimony in the absence of other corroborating evidence (such as a lab report or the defendant’s admission) must be supported with testimony as to the spe-cific factors (including observations and sense impressions) supporting the opinion. The witness’s experience and training in the area will also be factors. See, e.g., Bos-ton Hous. Auth. v. Curran, No. 07-SP-4593 (Boston Housing Ct. Dec. 11, 2007) (Winik, F.J.) (insufficient evidence of presence of illegal drugs).

Change in Ownership; Standing

Sometimes a change in ownership affects a party’s right to proceed with a summary process action. If the property is sold prior to commencement of the action, the for-mer owner no longer has a possessory interest and has no standing to bring the ac-tion. See Silvera v. Silvers, No. 04-SP-03250 (Boston Housing Ct. Nov. 18, 2004) (Winik, J.); Khemraj v. Rodriques, No. 99-SP-05509 (Boston Housing Ct. Nov. 29, 1999) (Daher, C.J.). If the property is conveyed while a decision is pending without a proper substitution of plaintiffs, the landlord’s claim for possession may be dismissed as moot. See Young v. Jackson, Summary Process Nos. 40979–40984 (Boston Hous-ing Ct. Apr. 10, 1987) (Abrashkin, J.). Trial courts have held that a new owner does not have any right to enforce a judgment or execution as to possession where the selling landlord did not transfer or assign the judgment and right to execution to the new owner prior to or contemporaneous with sale of the property. See, e.g., Shah v. Shenett, No. 98-SP-03811 (Boston Housing Ct. Feb. 4, 1999) (Daher, C.J.); LaPierre v. Riel, No. 86-SP-0170 (Worcester Housing Ct. Mar. 7, 1986) (Martin, J.).

The tenant, or the court on its own, may raise an issue of the plaintiff’s standing to pursue the action. If the plaintiff is not the party to the lease, and cannot demonstrate a landlord-tenant relationship or a right to possession, or that it has appropriate au-thorization to act as an agent for the owner, dismissal is often the result. See Com-monwealth Asset Mgmt. v. Gross, No. 10-SP-3259 (Boston Housing Ct. Oct. 2010) (Edwards, J.); Beacon Hill Props. LLC v. Thomson, No. 09-SP-3390 (Boston Hous-ing Ct. Sept. 11, 2009) (Muirhead, J.). Possession of a power of attorney may not be sufficient if there is an issue about the competence of the owner at the time the power was executed. See Hentley v. Canaday, No. 09-SP-2914 (Boston Housing Ct. Oct. 9, 2009) (Muirhead, J.). Similarly, if there is a will and an executrix, but the executrix pursues eviction in her capacity as an individual heir, the action may be dismissed. See Giambusso v. Hackett, No. 10-SP-0620 (Boston Housing Ct. Mar. 25, 2010) (Muirhead, J.).

Even in the unusual case where the occupant is the heir of the deceased owner and another family member seeks to oust him or her, there is no right to relief in sum-mary process, because the occupant has an equal right to possession. See, e.g., Santos v. Santos, No. 03-SP-01439 (Boston Housing Ct. July 15, 2003) (Pierce, J.). In such a case, other remedies must be pursued. Where there is uncertainty, the court may stay the action pending a party seeking relief in the Land Court or Superior Court on terms and conditions that protect the status quo. See Boudreau v. Ganter, 2010 Mass.



App. Div. 174; Johnson v. Davis, No. 09-SP-2662 (Boston Housing Ct. Sept. 14, 2009) (Muirhead, J.).

Agreements with Third Parties

Tenants and landlords should check to see whether the parties entered into any agreements with third parties that might act as a bar on eviction without “good cause” or a limitation on rent increases. Thus, in Stefanik v. Moore, No. SP-4833-H87 (Hampden Housing Ct. Jan. 6, 1988) (Abrashkin, J.), where the landlord had signed an agreement for weatherization assistance, and had agreed not to increase the tenant’s rent for a year, the court found that an eviction based on failure to pay a rent increase during the year was prohibited.

§ 4.2.2 Third-Party Practice in Summary Process Actions

In summary process action, it is occasionally necessary to bring in a third party or substitute for existing parties; third parties may also wish to intervene. While the Uniform Summary Process Rules do not explicitly address third-party practice, they do not bar it either. Instead, the provisions of Uniform Summary Process Rules apply:

Procedures in such actions that are not prescribed by these rules shall be governed by the Massachusetts Rules of Civil Procedure insofar as the latter are not inconsistent with these rules, with applicable statutory law or with the jurisdiction of the particular court in which they would be applied.

These rules and, where applicable, the Massachusetts Rules of Civil Procedure, shall be construed and applied to secure the just, speedy, and inexpensive determination of every summary process action.

Judicial Commentary General Laws c. 111, § 127N allows parties other than owners of resi-dential premises to be joined as a party defendant.

The Commentary to this rule explains that the Rules of Civil Procedure are refer-enced “to cover any unusual procedural questions that may arise.”

Joinder or substitution may be necessary or desirable under Mass. R. Civ. P. 19, 20, or 25 where there is doubt that the real party in interest is named. However, substitu-tion may not be sufficient to “save” a summary process action. Thus, trial courts have held that while a judgment may be assigned to a successor in interest, a landlord cannot assign the cause for eviction to a new landlord. See Heritage Equity Ltd. P’ship v. Considine, No. 97-SP-03077 (Boston Housing Ct. Nov. 19, 1997) (Daher, C.J.); April v. Abel, No. E-2962 (Quincy District Ct. 1987) (Whitman, J.). Moreover, if the assignment only occurs after the closing, it may not be sufficient to convey rights as to possession, but only the contractual right to recovery of rent. See Ama-tangelo Rev. Trust v. Ostrov, No. 07-SP-2434 (Boston Housing Ct. Oct. 15, 2007)



(Muirhead, J.); MB Mgmt. Co. v. Berry, No. 06-SP-0295 (Boston Housing Ct. Mar. 7, 2007) (Winik, J.); Shah v. Shenett, No. 98-SP-03811 (Boston Housing Ct. Feb. 4, 1999) (Daher, C.J.); LaPierre v. Riel, No. 86-SP-0170 (Worcester Housing Ct. Mar. 7, 1986) (Martin, J.). Moreover, the new owner may not recover possession for breaches that took place prior to assuming title. See Mulcahy & Dean, Inc. v. Hanley, 332 Mass. 232 (1955); Haymarket Realty Co. v. Sullivan, 249 Mass. 262 (1924); Trask v. Wheeler, 7 Allen (89 Mass.) 109 (1863).

For example, if a summary process action has been brought by a trust, but the trustee is not named, the action may be subject to a motion to dismiss for failure to name the real party in interest, under Mass. R. Civ. P. 17(a). Similarly, the tenant may move to dismiss an action where the property is owned by several heirs, and there is doubt that all heirs have agreed to termination of the tenancy. However, dismissal should not occur until a reasonable time has been allowed, after objection, for ratification of commencement of the action by, or joinder or substitution of, the real party in inter-est. Mass. R. Civ. P. 17(a).

If a summary process action involves an infant or an incompetent person and that person has a representative, such as a general guardian, conservator, or like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. Mass. R. Civ. P. 17(b). If the infant or incompetent person does not have a duly ap-pointed representative, he or she may sue through a “next friend” or a guardian ad litem. The court will appoint a guardian ad litem or make such other order as it deems appropriate for protection of the infant or incompetent person. Mass. R. Civ. P. 17(b).

If a housing authority is paying rent on the tenant’s behalf and part of the rent claimed by the landlord would properly be due from the housing authority, the tenant may wish to implead the housing authority under Mass. R. Civ. P. 14. See Loring Towers Assocs. v. Furtick, 85 Mass. App. Ct. 142 (2014). Alternatively, the tenant may wish to ask that the court utilize the procedure in G.L. c. 186, §§ 11 and 12 for notice to government entities that are responsible for the rent. If the issue is relatively discrete, the court may grant such a motion. If, on the other hand, the tenant has some unique claims against the housing authority that are not susceptible to ready determination in the summary process action (for example, that the housing authority has improperly terminated the tenant from a subsidy program), the court may instead require the tenant to pursue a separate action but permit consolidation of the proceed-ings under Mass. R. Civ. P. 42 where there are common questions of law or fact. See, e.g., Abrams Mgmt. Co. v. Lawson, No. 03-SP-02439 (Boston Housing Ct. July 16, 2003) (Pierce, J.). Decisions on whether to permit impleader or joinder are left to the trial court’s discretion and generally are subject to reversal only under an abuse of discretion standard. See SB Sunshine Realty v. Gillis, 87 Mass. App. Ct. 1130 (2015) (Rule 1:28 opinion) (upholding denial of impleader).

It is rare, but possible, that a defendant in a summary process action may assert a claim that is common to an entire class of similarly situated persons and be permitted to raise a class action counterclaim under Mass. R. Civ. P. 23. See, e.g., State Mgmt., Inc. v. Mroue, Summary Process No. 28246 (Boston Housing Ct. Aug. 2, 1984)



(King, J.) (tenant in multifamily mixed-income housing claimed that he and similarly situated tenants were not given opportunity to apply for “deep subsidies” in complex as they turned over; class-wide relief ordered).

Occasionally a third party will move to intervene in a summary process action be-cause he or she claims to be so situated that the disposition of the action may, as a practical matter, impair or impede his or her ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties. See Mass. R. Civ. P. 24. An example of this may be when an existing tenant vacates the premises and there is a hold-over in the apartment who claims a right to remain in the premises, or claims procedural rights, which are independent of those of the original tenant (such as the landlord’s acceptance of rent from that person). It is not usually necessary for a landlord to name all the members of the tenant’s household in a summary process proceeding, as a summary process execution is valid to dispossess a tenant and all members of his or her family who are holding under him or her. Keith v. Perlis, 231 Mass. 409, 413 (1918); Fiske v. Chamberlin, 103 Mass. 495 (1870). However, if the original head of household has departed and there are remaining members of the household who entered lawfully, they may be ousted only through appropriate civil proceedings, such as summary process. G.L. c. 266, § 120; G.L. c. 184, § 18.

Failure to give a remaining occupant a notice of termination, where the original ten-ant has left, may be grounds for dismissal of the action. See, e.g., Loconto v. Lizotte, No. 89-SP-01271 (Worcester Housing Ct. Nov. 1, 1989) (Martin, J.) (case against wife who was separated from husband dismissed for lack of jurisdiction where only the husband was named on the notice to quit served on the wife). A summary process action, however, is not required to oust a visitor or a guest of the tenant; instead, the landlord’s remedy is summary process directed at the tenant. United Co. v. Meehan, 47 Mass. App. Ct. 315, 319–20 (1999).

A government agency may move to intervene in an eviction case that is likely to have an effect on a large number of cases. See Cruz Mgmt. Co. v. Thomas, 417 Mass. 782 (1994) (Massachusetts Housing Finance Agency authorized to intervene in action regarding calculation of warranty damages and to pursue appeal). In such a case the proposed intervenor must serve a motion to intervene on all existing parties, and ac-company it with a pleading setting forth the claim or defense for which intervention is sought. A motion for intervention is committed to the sound discretion of the trial court, and may be denied if the court is persuaded that there are other means whereby the intervenor’s interests may be adequately protected. See, e.g., Cambridge Hous. Auth. v. Burney, 1998 Mass. App. Div. 162 (in eviction brought against husband who had vacated unit, wife, who was a member of his household, moved to intervene; court found that she would have the right, as remaining member of tenant household, to administrative grievance procedure and to restraining order against use of execu-tion in interim, and court was therefore within rights to deny request to intervene because of the adequacy of other protections for her interest).



§ 4.2.3 Discovery

(a) Generally

Under Unif. Sum. Proc. R. 7(a), either party is allowed to seek limited discovery as of right, so long as the discovery requests are filed with the court, and received by the opposing party, on or before the answer date. In summary process actions, unlike other civil actions, parties are to file the original discovery requests and the discovery responses with the court. Cf. Mass. R. Civ. P. 5(d)(2) (nonfiling of requests for pro-duction and responses); Superior Court Administrative Directive No. 90-2, Non-Filing of Discovery Materials (requests for admissions, interrogatories, or responses to either); Housing Court Department Standing Order No. 1-96 (same). Discovery is limited to written interrogatories, requests for admission, and requests for the pro-duction of documents. No more than thirty requests for admission and thirty inter-rogatories may be made without leave of court, but there is no limit on the number of requests for production of documents.

Filing and service of requests for discovery on or before the answer date automatic-ally postpones the trial date for two weeks. The party receiving the discovery has ten days to provide written discovery responses. The party serving discovery must notify the opposing party of the automatic two-week postponement, the newly scheduled trial date, and the requirement that the discovery responses be filed and served no later than ten days after receipt. Unif. Sum. Proc. R. 7(b), (c).

Each interrogatory must be answered separately and fully in writing under the penal-ties of perjury, unless it is objected to, in which case the reasons for objection must be stated. However, the rules are clear that if the information sought can be obtained by review of a document or documents, and the burden is equally upon either party to obtain such information, the landlord can satisfy the request by producing that document. Mass. R. Civ. P. 33. Any such response, however, must be specific and in sufficient detail to permit a party to identify, as readily as the originator, the records from which the answer may be ascertained. Otherwise, simply referring to the rec-ords might be construed as failing to answer the interrogatory fully. See Crest Realty Mgmt. v. Williams, No. 08-SP-4147 (Boston Housing Ct. Feb. 4, 2009) (Muirhead, J.). The answers are to be signed by the person making them, and the objections by the attorney or person making them. Unif. Sum. Proc. R. 7(c). Each response to an interrogatory or request for admission must be preceded by the request to which it responds. See Mass. R. Civ. P. 33(a) (interrogatories); Mass. R. Civ. P. 36(a) (requests for admission).

If documents have not been provided due to privilege, the trial courts will require that the parties adhere to the privilege log requirements of Mass. R. Civ. P. 26(b)(5). See, e.g., Owens v. Turner & Harrington, No. 09-SP-2841 (Boston Housing Ct. Oct. 20, 2009) (Muirhead, J.).

Requests for admission are deemed admitted unless the party either gives a written statement signed under the pains and penalties of perjury specifically denying the matter or setting forth in detail why the answering party cannot truthfully admit or



deny the matter, or a written objection addressed to the matter and giving the reasons for objection, signed by the party or his or her attorney. A denial must fairly meet the substance of the requested admission, and when good faith requires that a party qual-ify his or her answer or deny only a part of the matter for which an admission is re-quested, he or she shall specify so much of it as is true and qualify or deny the re-mainder. See Mass. R. Civ. P. 36(a).

A written response is required to requests for production of documents. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless the request is objected to, in which case the reasons for objection shall be stated. If objection is limited to a part of an item or category, the part shall be specified. A party who produces documents for inspection shall either produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request. See Mass. R. Civ. P. 34(b).

If a party has not filed and served discovery requests by the answer date, there is no discovery “as of right.” However, the court is free to grant leave for late discovery and often does so where “good cause” is shown. Uniform Summary Process Rule 7(a) specifically provides that the plaintiff’s receipt of an answer raising certain de-fenses and counterclaims is “good cause” to seek late discovery. See Jacobs v. Gomez, No. 06-SP-4319 (Boston Housing Ct. Dec. 28, 2006) (Pierce, C.J.) (where jury demand was timely filed, court finds “good cause” to permit discovery that was not served by the answer date). Similarly, leave of court may be sought to request special discovery, such as depositions or more than thirty interrogatories or requests for production; in all such cases, “good cause” will need to be shown about why the special discovery is needed and why the ordinary means of discovery provided under Unif. Sum. Proc. R. 7 are not sufficient.

While Superior Court Standing Order No. 1-09 on discovery is not binding on the Housing Court, it has been found to be useful guidance. See Hearthstone Corp. v. Rolfe, No. 12-SP-410 (Boston Housing Ct. Nov. 5, 2012) (Pierce, C.J.).

(b) Tenant Request for Information

Usually the tenant will use discovery to uncover information that will help him or her prove defenses or counterclaims at trial. Thus, in a nonpayment or “no-fault” case, the tenant may ask questions about the landlord’s knowledge of substandard condi-tions and when repairs were done. He or she may ask for the landlord’s rent records where there may be a dispute about payment. He or she may ask how the landlord handled the security deposit and what kinds of notices were given to the tenant in accordance with statutory requirements. Where it is alleged that the tenant or mem-bers of his or her household disturbed other tenants or breached lease obligations, the tenant may try to identify persons with information about this and find out what complaints were received. The Massachusetts Law Reform Institute (MLRI) has de-veloped a standard set of pro se discovery materials, consisting of form interrogato-ries and requests for production of documents, for use by tenants. See the MLRI



Discovery Booklet, which is included as Exhibit 4R. Also see the sample responses to discovery requests and motions to compel included as Exhibit 4S.

Practice Note For other tenant-oriented pro se materials assembled by MLRI, including an answer form for use in an eviction case, see Legal Tactics: Tenants’ Rights in Massachusetts (MRLI 7th ed. 2008). Such materials are also available at http://www.masslegalhelp.org, under links to “Housing” and “Self-Help Forms and Letters.”

(c) Landlord Request for Information

Landlord discovery requests are less common than tenant discovery requests in summary process actions. Nonetheless, the landlord may want to use discovery to get the tenant to admit to certain facts that will make presentation of the landlord’s case prima facie straightforward or will limit or undercut the tenant’s defenses and coun-terclaims. Common requests for information concern receipt of the notice to quit, the existence of a particular lease between the parties, agreement that a certain amount of rent is owed, or that a particular incident or series of incidents that took place that would be grounds for termination of tenancy.

(d) Motions for Protective Orders or to Strike Discovery

Within five days of receipt of a discovery request, a party objecting to or seeking relief from a discovery request may do so by filing and serving a motion for protec-tive orders or other relief. See Unif. Sum. Proc. R. 7(c).

There are three situations in which motions to strike or limit discovery are common.

1. Discovery irrelevant to defenses. If a tenant is being evicted for “fault” grounds, ordinarily the tenant will have no defense to possession under G.L. c. 239, § 8A and although the tenant may have the right to file counter-claims, these will not affect the landlord’s right to recover the apartment. In such a case, where the tenant has filed discovery requests relating to sub-standard conditions in the premises, the landlord may move to strike the dis-covery. Such a motion may be coupled with a motion to dismiss any G.L. c. 239, § 8A defense or to transfer the counterclaims to the civil docket. If the tenant is claiming a separate defense regarding retaliation, it ordinarily would be improper to strike the discovery, as the information requested may lead to evidence that would be admissible on the question of a retaliation defense. If the counterclaims are transferred to the civil docket, the parties’ rights and responsibilities are governed by the Rules of Civil Procedure, not the Uniform Rules of Summary Process, so discovery rights are broader.

2. Discovery not timely served by tenant. Housing Court Standing Order 1-04 provides that the landlord may move to strike discovery as of right for un-timely service. If such a motion is filed on the original trial date, it shall be heard on the following Thursday (or such other date as is designated by the



division). If the tenant provides an explanation that convinces the court that there was timely service, or that there is “good cause” to permit late service (i.e., the tenant left the papers at a particular address where he or she thought the landlord would receive them), the court may allow the discovery to proceed; otherwise, the court may strike the discovery as untimely. If the motion is denied, there are two options: the landlord may either serve an-swers to discovery to the tenant by the Monday before the rescheduled trial date and the trial will proceed, or the landlord may serve the answers on the Monday after the rescheduled trial date, and the trial is rescheduled to the next Thursday.

3. Presumption of automatic right to discovery. A landlord who receives a ten-ant’s discovery requests may not be familiar with the Uniform Summary Process Rules, and presume that he or she may seek similar discovery as of right, even though the discovery request is filed and served after the answer date. As noted above, this is a situation that requires leave of court, although the rules are clear that the court ordinarily will grant leave for late discov-ery. A tenant who receives such a discovery request without prior leave of court may file a motion to strike. A better approach, however, may be for the tenant to point out the rule and suggest the filing of a motion for leave for late discovery. Alternatively, since leave ordinarily is granted, the parties may wish to enter into a stipulation, agreeing that the landlord may seek certain late discovery, and providing a time frame by which the tenant will provide responses (this may be accompanied by a stipulation for continu-ance, where appropriate).

Ethics Commentary Recognizing the public perception of discovery abuse, Rule 3.4(d) of the Massachusetts Rules of Professional Conduct provides that a lawyer shall not make a frivolous discovery request or fail to make reasonably diligent efforts to comply with a proper discovery request. The lawyer’s obligation under this rule is independent of the client’s. This rule would presumably come into play to prohibit the throwing of prepackaged, read-ily available boilerplate discovery requests at an opponent that have no bearing or potential bearing on the specific facts in dispute.

If a party believes that more than thirty interrogatories or requests for admission have been requested, the best practice is to seek a protective order. See Varard v. Cardone, 2003 Mass. App. Div. 111, 113 (alternative remedies include moving to strike and obtaining a protective order; could not simply refuse to respond); Herdlein Techs., Inc. v. Century Contractors, Inc., 147 F.R.D. 103, 104 (W.D.N.C. 1993) (party that did not seek protective order and answered some but not all interrogatories waived right to object to excessive number). There may be questions about how multiple-part questions should be counted. If the subparts are part of an “identification” inter-rogatory, merely delineate the exact information sought, and are not aimed at seeking additional information, they should not be separately counted. See James W. Smith & Hiller B. Zobel, Rules Practice (7 Massachusetts Practice Series) § 33.3 (West 1975); 7 Moore’s Federal Practice § 33.30[2] (Lexis 3d ed. 1997 & Supp. 2003); see also



Afrow v. Cumberland Farms, Inc., No. 951669A, 1996 WL 1185115 (Mass. Super. Ct. Apr. 11, 1996), judgment aff’d, 426 Mass. 1006 (1997).

If the court agrees that the discovery is excessive, it may direct the offending party to file new requests within the thirty-item limit. See Boston Hous. Auth. v. Otero, No. 03-SP-00996 (Boston Housing Ct. Apr. 16, 2003) (Kyriakakis, C.J.). Alternatively, the party seeking discovery may request leave to ask more than thirty interrogatories for good cause shown.

(e) Motions to Compel

If a party has received no response to a discovery request within the ten-day response period, or if the responses provided are insufficient or incomplete (including where the party believes that a response should be provided notwithstanding objection), a motion for an order compelling discovery as permitted by Mass. R. Civ. P. 37(a) must be filed within five days. See Unif. Sum. Proc. R. 7(d). See the MLRI Discov-ery Booklet, which is included as Exhibit 4R, and the sample motions and responses included as Exhibit 4S. Such a motion ordinarily is heard on the rescheduled trial date. The court may determine that the trial date should be postponed or rescheduled following the disposition of such a motion. See Unif. Sum. Proc. R. 7(e). The court may grant certain relief for willful failure to respond to a discovery demand, including

• an order that the matter regarding which discovery is sought shall be taken to be established for the purposes of the action in accordance with the claim of the moving party;

• an order refusing to allow the party failing to respond to support or oppose designated claims or defenses or prohibiting the party from introducing desig-nated matters in evidence; and

• an order striking out pleadings or parts thereof or staying further proceedings until the discovery demand is satisfied or dismissing the action or any part thereof or rendering a judgment by default against the party failing to respond.

Unif. Sum. Proc. R. 7(d). Moreover, as provided in Mass. R. Civ. P. 37(a), the court may award reasonable expenses to the moving party, including attorney fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. The court may dismiss the action for failure to comply with a discovery order. See Lee v. Burnett, No. 12-SP-1859 (Boston Housing Ct. July 6, 2012) (Muirhead, J.).

If the motion to compel concerns the insufficiency of responses to discovery, Stand-ing Order No. 1-83 of the Housing Court Department requires that the moving party file a supporting brief by a minimum of three days prior to any hearing on a motion for further answers to interrogatories. Such brief must set forth the nature of the case, the interrogatory, the answer thereto, and a concise statement of the reasons for the motion. It is usually best practice for parties to do this with respect to any motion for further responses to discovery, even if the case is not in the Housing Court or if the discovery deficiencies concern requests for admission or requests for production of



documents. It is also best to combine the motion for further responses with this kind of brief; while it requires extra work, it will make the court’s job easier. In addition, the court ordinarily expects the parties to confer over their discovery disputes prior to the hearing to see if they can resolve or at least limit the disputes.

(f) Depositions

In a summary process action, unlike other forms of civil actions, the parties are not entitled to pursue depositions as of right before trial. However, either party may file a motion with the court seeking leave to pursue depositions of the opposing party, or of third parties, pursuant to Unif. Sum. Proc. R. 7(a). The party requesting a deposition will have the burden of convincing the court that there is “good cause” for a deposi-tion and that the other methods of discovery provided for under Unif. Sum. Proc. R. 7 are not sufficient. Harman v. Waugh, 2000 Mass. App. Div. 153 (discussing court’s discretion to deny or allow deposition in context of a summary process ac-tion). The court will probably wish to tightly control the scheduling of any deposi-tions so that they can be completed prior to any trial date set by the court.

Ethics Commentary Professional reporter services with outstanding bills for deposition tran-scripts frequently complain to Bar Counsel (or make inquiry of Bar Coun-sel’s ACAP program). Sometimes, this results in miscommunication be-tween the lawyer and client as to responsibility for payment. Repeated inquiries or complaints against the same attorney will result in a discipli-nary file being opened for investigation.

§ 4.2.4 Settlement

One of the most unattractive alternatives for either the landlord or the tenant is that of going to trial in an eviction action. The reasons for this are twofold: first, because of the uncertainty of either party prevailing on the issue of possession, whether it is before a judge or a jury; and second, the cost of preparing and proceeding with a trial, costs that include lost time at work, constable charges, attorney fees, and, for the landlord, the actual cost of using the execution. Because of these reasons, and also in light of the complexity of the summary process procedure, with its written and unwritten rules, combined with the twists and turns a case can take from begin-ning to end, attorneys who work in this area must be open to the possibility of resolv-ing cases short of trial. At any point during an eviction action, even after a trial has begun, the parties can enter into an agreement for judgment, which has the effect of an order of the court. This is true whether the eviction action is brought for nonpay-ment or for violation of the lease. The terms of this agreement can be as creative as the law allows. If each of the parties have consented to such an agreement, the court has almost no authority to alter or amend it, absent extraordinary circumstances or the agreement of the parties themselves. Boston Hous. Auth. v. Cassio, 428 Mass. 112 (1998); Thibbitts v. Crowley, 405 Mass. 222 (1989).

The court can, however, vacate an agreement where the parties were not aware of fundamental rights. See Pendarvis v. Mosley, Boston Housing Court No. 11-SP-4346



(Jan. 9, 2012) (Pierce, C.J.) (rights under automatic bankruptcy stay). The agreement may also be vacated if the court finds that it lacked consideration, i.e., that a party essentially obtained nothing in the bargained-for exchange. See J.M. Realty Mgmt. v. Espino, No. 12-SP-4921 (Boston Housing Ct. Mar. 13, 2013) (Pierce, C.J).

The Housing Courts have their own forms that they use for such agreements. These forms can be adapted for use in the District Court. Additionally, the Housing Courts have specific employees, called housing specialists, who serve as mediators in trying to resolve cases and who can give the attorney guidance as to what the court will or will not allow in such agreements.

(a) Practical Considerations in Negotiating and Writing Agreements

The contents of any such agreement will vary depending on the facts of the case and the practice of the court hearing the case. However, there are certain issues that should be addressed in any such document.

Possession of the Unit

As an initial point of negotiation, the parties should settle who will be entitled to possession. This is generally a major sticking point in the negotiations, since the landlord will want to regain possession and the tenant will want to retain possession. Attorneys who represent landlords should be aware that if the parties enter into an agreement under which the tenant is required to do some act or acts and the tenant defaults in performing that act or those acts, the landlord must be entitled to posses-sion in order to enforce the agreement through a motion for execution under G.L. c. 239, §§ 9 and 10.

There are several creative ways of breaking an impasse over possession. For exam-ple, the parties can agree to continue the trial for a period of time. They can agree that the case will be dismissed and possession will be restored to the tenant if the tenant has abided by certain terms at the end of a stated period. (This is referred to in G.L. c. 239, § 10 as an agreement for judgment with a right to reinstate the tenancy.) Alternatively, they can agree that breach would result in a motion for entry of judg-ment with the tenant having the right to appeal the judgment.

Payment of Arrearages

If the parties can agree to an amount owed, which may include court costs (and at-torney fees, if allowed by lease or by statute), the parties should negotiate and reach an understanding as to how this balance is to be paid. A note of caution in negotiat-ing such payment schedules: No matter how overdue the monies may be, the land-lord’s attorney should be reasonable in setting up the payment schedule, spreading it out over such a period of time that it is likely the tenant can afford to pay the current rent and the arrearage payment. The more unreasonable the payment schedule, the more likely the court will refuse to approve the agreement or find it difficult to enforce



if there is a default in the payments. The amounts of the payments and the due dates for such payments should be explicitly listed in the agreement.

Payment of Use and Occupancy

Once the tenant has been served with a notice to quit terminating the tenancy, the monies that paid on a regular basis should be considered use and occupancy. Use and occupancy, unless otherwise agreed to by the parties, is due in arrears, not in ad-vance. Once again, the parties should explicitly state when the tenant is obligated to pay use and occupancy.

With regard to chronic late payment cases, the agreement can require that the tenant pay the use and occupancy on or before the due date (or any grace period allowed) for a time period, such as a year or six months, and that all payments must be made in the form of a money order or certified funds. In some cases of nonpayment, the landlord might want to include this provision if the tenant has a poor rent-paying history. For example, in the last year, the landlord may have filed two prior eviction actions against the tenant and the tenant waited until the case was ready to be filed in court before paying. If this clause is included, the tenant must be made aware that each of these payments are important and must be timely made. Alternatively, the tenant may agree to go on vendor rent payments if they are available through a public assistance program (see G.L. c. 18, §§ 26–27 for TAFDC or EAEDC recipients), or to secure a representative payee or utilize a bill-payer program if this is available. The parties may also agree to payments being made in more than one monthly in-stallment.

Conditions of Stay

With regard to lease violations, which may include nonpayment of rent, the parties can agree to a date by which the tenant will vacate the unit. If this is the case, the agreement should include the date on which the execution will issue from the court. One consideration when entering into such agreement in a nonpayment action might be for the landlord to waive the balance owed or dismiss the action outright if the tenant timely vacates the unit. This may be just the incentive needed to ensure that the tenant does in fact vacate without further expense to the landlord (from having to forcibly eject the tenant by use of a constable or sheriff).

With regard to a lease violations case, the parties can enter into an agreement in which the tenant agrees to correct his or her misbehavior for a set period of time. For example, the tenant can agree to refrain from allowing unauthorized persons to reside upon the premises, making sure that the agreement specifies what “reside” means. The tenant can agree to provide proof that the long-staying friend or relative, in fact, resides elsewhere, such as copies of a driver’s license, a lease or statement from the friend’s or relative’s present landlord, and copies of utility bills in the friend’s or rela-tive’s name. If the troublemaker is an adult child, the tenant can agree to remove this person from the lease and agree that the tenant will not allow the child into the unit or the building.



Whatever the parties agree to, the attorney should make sure that the acts prohibited are explicitly described so that the tenant has clear and unequivocal notice concern-ing the steps to be taken to preserve his or her occupancy. See Warren Gardens Hous. Coop. v. Clark, 420 Mass. 699 (1995). The agreement should have a clear starting and ending date and can include the statement that once the agreement is over, its terms become part of the recreated tenancy. If any extension of time to perform any act under the agreement is granted, this change should be confirmed in writing.

Reservation of Rights

The parties should explicitly state in the agreement what rights have not been re-solved. The landlord’s attorney should include a statement in the agreement that all payments by the tenant are for use and occupancy or for arrearages only, and that such payments are accepted without reinstating the tenancy until and unless the ten-ant complies with the terms of the agreement. In addition, the landlord’s attorney should make sure that if any new leasing documents are being signed, the agreement protects the landlord’s rights so that the tenant is not inadvertently reinstated. Where the tenant may be relocated to another address under the landlord’s control during the term of the agreement, the agreement should make clear that it continues to control at the new address and that pleadings may be amended to cover the new address.

Release of Claims

Likewise, the parties should explicitly state in the agreement what rights have been resolved, including the waiver of any monies by the landlord, the amount that was waived, and the purpose for such waiver. The parties should agree explicitly to waive any rights of appeal. G.L. c. 239, § 5. However, an appeal generally will not lie from a consent judgment, as a waiver of appeal is implicit by virtue of the judgment being by consent.

The parties must also decide whether such releases are with or without prejudice. If the claim or counterclaim has been raised by either party in the action, absent a res-ervation, it may be considered waived or already adjudicated. See Mass. R. Civ. P. 41(a)(1) (unless otherwise stated in notice or stipulation of dismissal, dismissal is without prejudice, but will be an adjudication on the merits if plaintiff has previously dismissed an action based on or including same claim).

Repairs to Unit

The agreement can require that repairs be made, either in the unit or the common areas. Any such provision should include a detailed description of the work to be performed and a date by which such work is to be performed. If such a detailed list is not available, the parties can agree to set up a time and date for inspection and write up a list of repairs, which should then be incorporated into the agreement. This pro-vision should make it clear that the tenant must provide access for such repairs and can provide that the tenant must cooperate with the landlord’s efforts to repair.



Absent language authorizing it, tenants under an agreement for judgment with a stay of execution or right of reinstatement of tenancy do not have the right to withhold rent for conditions of disrepair. Their remedy is to file a motion seeking to compel repairs. See Boston Hous. Auth. v. Wiggins, No. 10-SP-5056 (Boston Housing Ct. Mar. 15, 2012) (Muirhead, J.).

Reasonable Accommodations

If, during the eviction action, the tenant requested an accommodation, the parameters of any agreed upon accommodation should be set out in the agreement. As part of the accommodation, the landlord can agree to enter into a probationary agreement rather than immediately proceeding with the claim for possession. The landlord’s attorney may request that the tenant provide verification of the need for such accommodation, and if this is included in the agreement, the parties should include a date by which this verification is to be obtained. The tenant should acknowledge that he or she is satisfied with the accommodation granted.

Stay of Execution

As required under G.L. c. 239, § 10, if the tenant has agreed to vacate the premises, the parties should explicitly state the date on which the tenant is moving out. In most cases this will be a difficulty, as most tenants are understandably reluctant to commit to a date unless they have an apartment ready. A creative solution to this impasse may be to provide in the agreement that the tenant has the ability to request additional time to move, if, and only if, the tenant can satisfy the court that he or she has made a good faith, diligent effort to locate housing.

Practice Note If the agreement does not explicitly indicate that the tenant waives the right to further stays of execution, the tenant may have the right to re-quest an extension of the stay up to the maximum period permitted by the statute. However, if the agreement provides that no further stays will be permitted beyond those provided in the agreement, the court may find its discretion to be limited.

Impact of Agreement on Eligibility for Subsidy or Emergency Shelter

A tenant with low income and minor children may need to obtain emergency shelter if he or she is unable to find other housing by the time any stay of execution expires. However, Department of Transitional Assistance rules provide that tenants are not eligible for shelter if they are evicted from public or subsidized housing for nonpay-ment of rent or fraudulent behavior within the prior three years (except when the person causing the eviction is no longer part of the household), are evicted from any kind of housing because of criminal activity (except when the activity was committed by a domestic violence batterer who is no longer part of the household), or are evict-ed from private housing for destruction of property. See 106 C.M.R. § 309.040(B)(3)–(5). The prohibition also applies to households evicted pursuant to an agreement for judgment, where the eviction was brought in whole or in part for one of those



grounds. See 106 C.M.R. § 309.040(B)(6). In addition, if the tenant has a subsidy, eviction for a serious lease violation can result in loss of the subsidy. See 24 C.F.R. § 982.552(b)(2). If the tenant does not already have subsidy but is counting on mov-ing to affordable housing as a way to avoid eviction, eviction for “fault” may mean that the tenant does not qualify for priority admission, or will be found unsuitable. A tenant being evicted from private unsubsidized housing for nonpayment of rent may be required to show that the nonpayment stemmed from a change of circumstances that was beyond his or her ability to control or prevent (such as job loss, rent in-crease, departure of a household member, illness, or the like), and that rent was paid up until the time of the changed circumstances. The parties may want to address these issues in the settlement; even though they are immaterial for any resolution of the eviction, they may be important for the tenant to access shelter or affordable housing or to avoid a loss of subsidy.

Practice Note The landlord may have several reasons for evicting the tenant—some of which are related to “fault” and some of which are not. Both parties may have a reason to settle such a case by withdrawing reasons relating to fault and substituting no-fault grounds. For the landlord, it may be difficult to prove the fault case, and pushing the fault issue raises the stakes for the tenant. For the tenant, there is the risk that the landlord may win on fault grounds, and in some cases a settlement on no-fault grounds that preserves subsidy or emergency shelter eligibility may be the best option available.

Credit Bureau Checks; Impoundment; Confidentiality of Materials

Increasingly, as court materials become available online or are scrutinized by credit bureaus, parties are understandably nervous that negative or confidential personal information may become broadly available to credit bureaus or other third parties. It should be noted that, under Unif. Sum. Proc. R. 7, unlike discovery in other civil actions, discovery requests and responses in summary process actions are filed with the court. Massachusetts trial courts are currently undertaking initiatives to minimize the recording of personal data in publicly available records to minimize the likeli-hood of identity theft, and this may result in a change to the rules.

On occasion, parties may request that records be sealed or impounded for good cause to protect privacy interests. See, e.g., Quincy-Geneva Hous. IV v. Cox, No. 07-SP-2269 (Boston Housing Ct. Feb. 27, 2008) (Pierce, C.J.); Urban Edge v. Thomas, No. 06-SP-3982 (Boston Housing Ct. Sept. 11, 2007) (Muirhead, J.). The trial court’s Uniform Rules on Impoundment Procedure can be applied in such situations. The parties’ agreement in favor of impoundment is not dispositive as to good cause.

Parties often negotiate settlements that an eviction action will be dismissed after a period of time or after the tenant has vacated. This may help avoid the collateral con-sequences of an eviction action on a party’s credit.



(b) Modification and Enforcement of Agreements

If the tenant fails to live up to the terms of the agreement, the landlord’s attorney can request that the court issue the execution by filing a motion with the court under G.L. c. 239, § 10. If the court, after a hearing, determines that the tenant is in substantial violation of a material term or condition of stay or a material term of the agreement for judgment, it must issue the execution. Again, the parties can specify in their agreement that each term is a material term. Most courts, however, will not allow the attorney to specify that any violation is a substantial one, since this phrase is the source of their authority to make a determination as to whether the activity rises to a level that merits the issuance of the execution.

At the time of the hearing on the landlord’s request for the issuance of the execution, the parties can agree to vary the terms of the agreement for judgment, either by agreeing to give the tenant time to vacate or additional time to comply with the terms of that agreement.

The tenant also has the right to enforce the terms of the agreement. Such an action may be brought by way of a contempt complaint. Where a party is less sure that there is contempt, a motion for enforcement may be sought.

(c) The Approval Process in the Housing Courts

All the Housing Courts have their own preprinted forms that they prefer attorneys to use. These forms can be adapted to fit the circumstances of the settlement. After the parties have agreed to the language of the agreement, each party should sign it, to-gether with their attorney and any translators that were used during the negotiations. Once the agreement has been signed, it should be submitted to the court for approval.

As a general rule, the Housing Courts follow these procedures for approval:

• Boston Housing Court: The original agreement is given to the Housing Spe-cialist Department before the parties sign it. One housing specialist is assigned to review the document with the parties to make sure that each understands its terms. Once the housing specialist has reviewed the agreement, the parties sign it in his or her presence, and copies are made for the parties. The file and the original agreement are then turned over to the clerk magistrate, who will ask the parties if they have read the agreement, whether they are satisfied with it, and whether anyone forced them to sign it. The clerk will then approve the agreement and enter it as an order of the court. If the agreement for judgment contains equitable provisions, the parties must appear in front of a judge for review and approval, after the housing specialist has reviewed it with the par-ties, even if one or both of the parties are represented by counsel.

• Worcester Housing Court: The original agreement is given to a housing spe-cialist or the clerk, who reviews it with any self-represented party. The original document is then submitted directly to one of the judges for review and signa-ture. After the judge signs the documents, copies are given to the parties.



• Northeast Housing Court: In most cases the parties appear before a housing specialist to negotiate the agreement, in which case the housing specialist will write up the agreement. The signed agreements are turned into the clerk, who then submits them to the judge for review and approval. If the parties negotiate and prepare their own agreement, this document is also turned over to the housing specialist, who reviews it before submitting it to the judge for review and approval. If the court is in a location where a copier is not readily availa-ble, the court will mail copies of the agreement to the parties.

• Southeastern Housing Court: In most cases the parties appear before a housing specialist to negotiate the agreement, in which case the housing specialist will write up the agreement. The court allows parties to write up their own agree-ments, which are turned into the housing specialist and copies made. The court requires that the parties themselves, in addition to any attorneys, actually ap-pear, either before the clerk magistrate or the judge, in order for the agree-ments to be approved.

• Western Housing Court: In most cases the parties appear before a housing spe-cialist to negotiate the agreement, in which case the housing specialist will write up the agreement. The court allows parties to write up their own agree-ments, which are turned into the housing specialist; copies are made. The court requires that the parties themselves, in addition to any attorneys, actually ap-pear, either before the clerk magistrate or the judge, in order for the agree-ments to be approved.

Note that these procedures may be subject to change due to the adoption of a plan under the Uniform Rules on Dispute Resolution adopted by the Supreme Judicial Court or by changes to the procedures adopted by each division.

On occasion the courts have allowed motions to set aside agreements, or denied en-forcement, where they felt that there were problems with the content of an agreement or the manner in which the agreement was achieved. See, e.g., Schochet Co. v. Fon-taine, No. 14-SP-3631 (Western Housing Ct. Nov. 7, 2014) (Kamukala, J.) (tenant unrepresented at time agreement reached, and did not have opportunity to consult with counsel prior to court colloquy; colloquy did not mention that eviction was for cause, and it subsequently came out that cause may have been related to son’s mental condition; agreement was boilerplate and was overreaching in certain respects; ten-ant’s pain and medications may have caused confusion and desire to leave court as quickly as possible); J.M. Realty Mgmt. v. Espino, No. 12-SP-4921 (Boston Housing Ct. Mar. 13, 2013) (Pierce, C.J.) (agreement vacated as unconscionable where no consideration found and party was worse off under agreement than if matter had im-mediately been tried and other party prevailed).

(d) Final Basic Considerations for Approval and Enforcement

To make sure that the agreement will be approved and enforced by the court, the attorney should follow these four steps:



1. Make sure that the language of the agreement is clear and that the terms are reasonable.

2. Make sure that each party, regardless of language barrier or disability, fully understands the plain meaning of each of the terms as well as the penalties for failure to live up to those terms.

3. Make sure that every condition or understanding of the parties is written down.

4. Make sure that everyone has a copy of the agreement.

By following these simple rules, an attorney should be able to resolve the case with-out incurring needless cost and anxiety for his or her client.

(e) Subsequent Use of Court Agreements

It is relatively common for the courts, in considering whether to grant or deny a mo-tion to issue execution under G.L. c. 239, § 10, due to a substantial breach of a mate-rial term of a court agreement, to evaluate whether the parties have entered into prior agreements. In addition, a judge or jury may consider prior court settlements in eval-uating whether an alleged lease breach is accidental or incidental or, on the other hand, appears to be part of a pattern of behavior. See Commonwealth Land Trust v. Wilson, 84 Mass. App. Ct. 1123 (2013) (Rule 1:28 decision).

§ 4.2.5 Pretrial Motions

If an agreement cannot be reached and the parties must bring the summary process action to trial, certain pretrial motions may be necessary.

(a) Generally

Under Unif. Sum. Proc. R. 6, any pretrial motions must be in writing and must in-clude the docket number of the case, state with particularity the grounds for the mo-tion, and include a brief written statement of the reasons in support of the motion. Rule 6 also requires the following:

• If a motion is filed with the court and served on the opposing party by no later than the first Monday after the Monday entry day (i.e., by the answer date), it will be heard on the original trial date. Service can be by hand or by mail, but filing or service by mail is only complete upon receipt. Such motions are heard without further notice of the hearing date.

• Any motion filed and served after the answer date must be made in such man-ner, at such time, and with such notice as the court may permit or direct. In such cases the party should seek guidance from the clerk’s office at the court about what practices govern the scheduling and notice of motions.

If one of the parties has filed and served requests for discovery under Unif. Sum. Proc. R. 7 that would automatically continue the trial date for two weeks, he or she



should be aware that any pretrial motions filed and served on or before the answer date will still be heard on the original trial date, even though any hearing on the mer-its of the case will be postponed. An exception to this is if a party transfers the action from the District Court or Superior Court to the housing court pursuant to Unif. Sum. Proc. R. 4. In such a case, all proceedings in the original court are suspended, and the Housing Court will notify the parties of a rescheduled trial and hearing date. How-ever, the parties can agree, through an appropriate written stipulation, to continue the hearing date on the motions to the rescheduled trial date, if that is preferred.

(b) Tenant’s Motions: Motions to Dismiss and Other Motions

Uniform Summary Process Rule 6 establishes a special procedure that defendants may use if they wish to have a motion to dismiss heard prior to the original trial date. Under this procedure, the defendant must file and serve the motion on or before the entry date and notify the court and the opposing party that the defendant requests that the matter be heard prior to the trial date. In such a case, the court will schedule the motion for the Thursday (or Friday or Monday or second Tuesday or second Wednes-day) following the entry date. If the motion is denied, continued, or taken under ad-visement at the hearing, the defendant’s answer will still be due by the answer date and the trial schedule will not be affected, unless the court otherwise orders. This alternative scheduling arrangement is rarely used. In all other cases, motions to dis-miss may be filed either on or before the answer date, or in such manner, at such time, and with such notice as the court permits or directs.

In summary process actions, it is common for defendants to move to dismiss the pro-ceedings where it is claimed that there are procedural errors. In a number of these cases, the motions more properly should be regarded as motions for summary judg-ment, as they will require the court to consider materials outside the pleadings, such as the parties’ lease, affidavits, rent receipts, and the like.

Defendants in summary process actions often need to file other pretrial motions. If the defendant has not filed an answer by the answer date, a motion for leave to file a late answer may be necessary. If a defendant wishes to amend an answer, he or she may wish to file a motion for leave to amend. The amendment of pleadings is not discussed in the Uniform Summary Process Rules. Under Mass. R. Civ. P. 15(a), a party may amend his or her pleadings once as of right at any time before a responsive pleading is served and prior to entry of an order of dismissal or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed on the trial calendar, at any time within twenty days after it is served. No responsive pleading to a summary process answer is required, even if counterclaims are included. See Unif. Sum. Proc. R. 5. However, since summary process proceedings are virtually always considered to be on a trial calendar, and since time is of the essence in their disposition (see Unif. Sum. Proc. R. 1), it is necessary to seek leave to amend. In determining whether to grant leave, the court considers whether any undue prejudice will be caused by amendment; a drastic amendment asked for shortly prior to trial may be denied. See Hodge v. Klug, 33 Mass. App. Ct. 746 (1992).



A defendant may file a motion for “good cause” to seek late discovery, or to seek a type of discovery not automatically provided for by Unif. Sum. Proc. R. 7, such as a deposition. See Unif. Sum. Proc. R. 7(a). A defendant may move for leave to have an interpreter appointed, pursuant to G.L. c. 221, § 92A (deaf or hearing-impaired per-son) or G.L. c. 221C, § 1 et seq. (foreign language). These statutes do not require that a motion for an interpreter be filed, and many courts may not require such motions. However, a motion for interpreter is often the best way to bring the court’s attention to the need for interpreter services, particularly where it may take a while for the trial court to secure an appropriate interpreter. Defendants may file motions because of the need to bring in third parties or because there is a need for a guardian ad litem.

§ 4.2.6 Judgments and Executions

(a) Default Judgments; Nonsuit; Dismissal Nisi

Under Unif. Sum. Proc. R. 10(a), if a defendant fails to appear for trial, the defendant will be defaulted at the call of the trial list on the day scheduled for hearing, as long as the plaintiff appears at the call of the list. If the defendant appears but has not filed an answer, no default enters and the court is to postpone the trial date one week from the original trial date, unless the plaintiff consents in writing to an immediate trial. However, as a practical matter, this is rarely seen, except in certain District Courts.

If the plaintiff fails to appear for trial and the defendant has filed an answer and ap-pears, the action is to be dismissed. The plaintiff may be defaulted on any timely counterclaims filed by the defendant. See Unif. Sum. Proc. R. 10(b). Under a change to Unif. Sum. Proc. R. 10(a) effective March 1, 2004, if the plaintiff fails to appear for trial and the defendant appears but has not filed an answer, the action is not dis-missed automatically. Instead the clerk notifies the parties to appear the following week, and if the plaintiff fails to appear then, the action will be dismissed.

If neither party appears for trial, the action will be dismissed nisi within seven days unless either party requests a new trial date within the seven-day period. See Unif. Sum. Proc. R. 10(a), (b).

Judgments are entered on the next business day following the entry of default or dismissal. However, no default judgment is to enter until a military affidavit has been filed. Additionally, where there is a claim for rent or use and occupancy, an affidavit stating the aggregate amount of payments received, if any, subsequent to the date of commencement of the action on account of such rent or use and occupancy must be filed before judgment will enter. Unif. Sum. Proc. R. 10(d). The clerk is to review the documents filed with the court and should not enter any default judgment where it appears that the summons was not properly completed, served, or returned, the com-plaint was not properly completed or served, or other documents required to be filed with the court under Unif. Sum. Proc. R. 2(d), such as the notice to quit and proof of service, have not been filed. See Unif. Sum. Proc. R. 10(d). Until such time as a judgment for dismissal or default has been entered, the court may remove the entry of default or dismissal at its discretion, either on its own initiative or on written motion



of either party. See Unif. Sum. Proc. R. 10(c). Notice of judgment is to be sent to all parties forthwith upon the entry of judgment. See Unif. Sum. Proc. R. 10(e).

Under a change to Unif. Sum. Proc. R. 12 effective March 1, 2004, a notice of appeal cannot be filed from a summary process default judgment. The defendant’s remedy is to seek relief under Mass. R. Civ. P. 60(b). The denial of relief under Mass. R. Civ. P. 60(b) is itself appealable. See Lawrence v. N.E. Envtl. Servs., Inc., 2003 Mass. App. Div. 8; Cummings Props., LLC v. Nardone Enters., Inc., 2002 Mass. App. Div. 103. However, the appeal is from the denial of the Rule 60(b) motion, not from the origi-nal judgment. Under an amendment to Mass. R. App. P. 4 that took effect May 1, 2013, if relief is sought within ten days of the entry of the default judgment, there is an automatic stay on the issuance of the execution. However, if relief is sought later, or if relief is denied and an appeal is taken, the party seeking relief must move pur-suant to Mass. R. App. P. 6 for a stay on issuance or use of the execution pending trial court review or appellate review of the denial of the Rule 60(b) motion. If the trial court does not grant a stay, such relief would need to be sought in the Appeals Court. A similar approach is used for District Courts under the one-trial system (which are not covered by Massachusetts Rules of Appellate Procedure), with re-course to the Appellate Division of the District Court if the trial court denies a stay.

Where a default judgment has entered, Mass. R. Civ. P. 60 and 62 apply to motions for relief from judgment and for stay of issuance of, or use of, the execution pending action on the motion for relief from judgment. Despite this language in Unif. Sum. Proc. R. 11, some trial courts (such as the Boston Housing Court) will not grant emergency relief under Rule 62 against issuance or use of an execution once a sum-mary process judgment has entered and the ten-day appeal period has elapsed. In-stead, they may require the tenant to file a separate civil action seeking a restraining order against issuance or use of the execution. Where this is the local court practice, the tenant should be sure, at the same time, to file the underlying request for relief under Rule 60(b), as the restraining order is intended only to preserve the status quo until such time as the substantive motion can be heard and decided. Where a sum-mary process action is in the District Court in an area that has a Housing Court, and the District Court cannot schedule an emergency motion for relief from judgment fast enough to avoid hardship, the tenant may wish to seek a restraining order in the Housing Court to preserve the status quo, pending the hearing on the motion for re-lief from judgment in the District Court. If the tenant has not filed an answer, the Rule 60(b) motion should be accompanied by a proposed answer or other submission that shows that the tenant has meritorious defenses to the eviction.

There may be cases where relief is sought from the entry of a default and no default judgment has entered. In such cases the standard for relief is the more lenient “good cause” standard of Mass. R. Civ. P. 55(c), rather than excusable neglect under Mass. R. Civ. P. 60(b). See Boston Hous. Auth. v. Blackwell, 78 Mass. App. Ct. 1114 (2010) (Rule 1:28 opinion).

Rule 11 of the Uniform Summary Process Rules provides that, if the original judg-ment was on the merits, there is no relief available under Mass. R. Civ. P. 60(b) in the District Court Department. Despite the rule, however, the Supreme Judicial Court has



held that this is no longer the case for District Courts. See ROPT Ltd. P’ship v. Katin, 431 Mass. 601 (2000). (The rationale for Rule 11 is that a party could have a second bite of the apple in a de novo appeal; this rationale no longer applies in the one-trial system.)

A judgment in a summary process action must be appealed by filing a notice of ap-peal within ten days of the entry of judgment. G.L. c. 239, § 5. In the Superior Court or Housing Court, a timely motion for a judgment notwithstanding the verdict under Mass. R. Civ. P. 50(b), a motion to amend the findings under Mass. R. Civ. P. 52, or a motion for a new trial or to alter or amend the judgment under Mass. R. Civ. P. 59 tolls the running of the appeal period, and a new notice of appeal will be required after the disposition of such a motion. See Mass. R. App. P. 4; Manzaro v. McCann, 401 Mass. 880 (1988). Rule 52 and Rule 59 motions toll the running of the appeal period for a summary process action in District Courts, where the appeal goes to the appellate division of the District Court Department. See Dist./Mun. Cts. R.A.D.A. 4(a). Rule 4(a) of the Appellate Division does not discuss motions for a judgment notwithstanding the verdict under Rule 50(b). As noted above, Mass. R. App. P. 4 was amended in 2013 to provide that if relief from the judgment is sought under Mass. R. Civ. P. 60(b) within ten days of the entry of judgment, this too suspends the finality of the judgment, and a new notice of appeal would be required after disposi-tion of the motion.

Practice Note To be on the safe side in such cases, counsel should file a notice of ap-peal within the original ten-day appeal period, in addition to any motion under Rule 52 or Rule 59, as well as a subsequent notice of appeal within ten days of the entry of the order on the Rule 52 or Rule 59 motion.

(b) Issuance of and Stays on Executions; Satisfaction

If neither party files an appeal within the ten-day appeal period under G.L. c. 239, § 5, execution may issue in accordance with the judgment. Under G.L. c. 239, § 5, the filing of a notice of appeal by the tenant generally stays the issuance of an execu-tion for possession, provided the tenant complies with the terms imposed by the court for appeal bond or payments in lieu of an appeal bond. There are some limited exceptions if the tenant is being evicted from public housing for certain serious “cause” grounds. See G.L. c. 121B, § 32, ¶ 7; Boston Hous. Auth. v. Bryant, 44 Mass. App. Ct. 776 (1998). In those cases the trial court must determine that there is a rea-sonable likelihood of success on appeal; the tenant can seek review of the trial court’s determination by an appropriate appellate court. If the plaintiff prevails on his or her claim for possession, the execution shall be for possession and for any rent or use and occupancy due; in all other cases the execution shall be solely for any mon-ies due on the judgment.

Under G.L. c. 235, § 23, the court is to issue an execution for possession within ninety days of the entry of judgment, not counting any stay of execution period. Once the execution is issued by the court, it remains valid for recovery of possession for a ninety-day period only. If the court does not issue the execution for possession within



ninety days, or the plaintiff does not use the execution within ninety days of its issu-ance, the execution is stale and cannot be reissued; the plaintiff’s remedy is to bring a new action. See Lewey v. Chelsea Dist. Ct., No. 88-304 (Mass. 1988) (O’Connor, J.); Vandi v. Boston Hous. Auth., No. 2000-J-531 (Mass. App. Ct. 2000) (Duffly, J.); Maple Commons Assocs. LP v. Perez, No. 06-SP-4326 (Boston Housing Ct. Aug. 27, 2007) (Muirhead, J.); Burns v. Gibbons, No. 02-SP-0832 (Boston Housing Ct. Mar. 31, 2003) (Pierce, J.); Jones v. Gonzalez, No. 95-SP-02922 (Boston Housing Ct. Jan. 3, 1996) (Winik, J.); Yogel v. O’Connell, No. 93-SP-03568 (Boston Housing Ct. Oct. 31, 1994) (Daher, C.J.).

If the underlying judgment was by default, however, there may also be relief availa-ble under Mass. R. Civ. P. 60(b) to restore the case to its pretrial posture where no prejudice is shown. See Eva White Apartments v. Silas, No. 07-SP-4949 (Boston Housing Ct. Jan. 14, 2009) (Muirhead, J.). Similarly, a court may elect to vacate the judgment under Mass. R. Civ. P. 60(b)(6) and schedule a new trial, rather than re-quire a new action to be commenced. See Ammerman v. Johnson, No. 11-SP-4454 (Boston Housing Ct. June 26, 2012) (Pierce, C.J.). If the execution was stayed for a period of more than ninety days and the original execution was lost, an alias execu-tion may issue. See Accredited Home Lending v. Jennings, No. 08-SP-2733 (Boston Housing Ct. Sept. 17, 2010) (Muirhead, J.). The filing of a bankruptcy action, how-ever, may toll the running of the ninety-day period until the bankruptcy stay expires. See Federal Nat’l Mortgage Ass’n v. Hospedales, No. 95-SP-05699 (Boston Housing Ct. Apr. 29, 1996) (Daher, C.J.). An execution for money damages, on the other hand, remains valid for twenty years. If the parties did not authorize a money execu-tion as part of their settlement, it is an error for a money execution to be issued, and it should be recalled. See Johnson v. Frye, 2005 Mass. App. Div. 56.

Counsel for the landlord and tenant are sometimes in a “use it or lose it” situation because of the ninety-day rule on the life of an execution. Consider a case where the tenant has acted in good faith but has not found other housing, and the landlord is willing to extend the time for the tenant to relocate; however, the landlord is afraid that if the tenant stays too long, the execution will become stale and the landlord will have to bring a new action. This can be avoided by the parties’ entry into an agree-ment for judgment to supersede the original judgment, which provides for return of the original execution and the issuance of a new execution after an agreed-upon stay period. This agreement must be made, the old execution returned to court, and the new agreement approved by the court before the ninety-day period has elapsed. See Cattaneo v. Gordon, No. 97-SP-05290 (Boston Housing Ct. Sept. 8, 1999) (Daher, C.J.). If a default judgment has entered, the court is without jurisdiction to issue an execution after the statutory period has elapsed, but it may find there to be good cause to vacate the default at the request of either party. See Eva White Apartments v. Silas, No. 07-SP-4949 (Boston Housing Ct. Jan. 14, 2009) (Muirhead, J.).

Under G.L. c. 239, §§ 9–12, a court can grant a stay of execution to a tenant whose tenancy has been terminated without fault of the tenant. Some trial courts, without any explicit source of statutory authority but based instead on their inherent equitable authority, may grant brief stays of execution for tenants facing eviction for nonpay-ment of rent or even due to tenant “fault.” Stays of execution are not available for



occupants of hotel rooms or for those who have resided in a rooming-house unit for less than three consecutive months. G.L. c. 239, § 9. The denial of a motion for a stay of execution under this statute may be reviewed under an abuse of discretion stand-ard. See Poutahidis v. Clingan, 2001 Mass. App. Div. 217; LoRusso v. Talbot, 1999 Mass. App. Div. 301.

In cases involving the wrongful conduct of a household member or guest, the court may decide to grant a stay of execution because the tenant himself or herself was not at fault. See, e.g., Lessard Prop. Mgmt. v. Monserrate, No. 01-SP-03340 (Western Housing Ct. Nov. 28, 2001) (Fein, J.). But cf. HUD v. Rucker, 535 U.S. 125 (2002) (upholding “one strike” evictions that may be without fault of tenant).

The stay of execution period is up to six months for any tenant, and up to twelve months if the tenant or a member of the tenant’s household is elderly (sixty years of age or older), disabled, or handicapped. The court has broad discretion in granting or denying stays of execution and in setting the terms of the stay and often considers the relative hardships of the parties. Frequently the court requires the tenant to demon-strate that he or she has used reasonable diligence in securing alternative housing and may grant an initial stay period shorter than the statutory maximum, with the tenant having the right to petition for extension with an appropriate showing of hardship.

A stay of execution is premised on the tenant’s paying all rent or use and occupancy then due and continuing to pay the fair rental value of the premises during the period of the stay of execution, which is determined based on the prior rent. See G.L. c. 239, § 11. While this figure often is the same as the tenant’s prior rent, trial courts have set the use and occupancy during the stay of execution at figures both above and below the preexisting rent.

Stays of execution have been granted to former owners of the property who remain after foreclosure. See, e.g., Federal Nat’l Mortgage Ass’n v. Gabriel, No. 96-SP-01968 (Boston Housing Ct. Apr. 26, 1996) (Winik, J.); G.E. Capital Mortgage Servs. v. Butterworth, No. 96-SP-02775 (Boston Housing Ct. July 12, 1996) (Daher, C.J.). The court may, however, determine that this is not under G.L. c. 239, § 9, as the oc-cupant was never a tenant, but is done under the court’s general equitable authority. See Chandler Cazenove LLC v. Hummel & Arnold, No. 12-SP-767 (Boston Housing Ct. Mar. 26, 2013) (Muirhead, J.). In such cases the court ordinarily needs to make a determination of the fair rental value of the property, as there is no previously agreed-upon rent for the property.

The parties are free to negotiate their own terms for stays of execution in an agree-ment for judgment. Such agreements are not limited to the statutory maximum, and there may be cases where the parties find it in their mutual interest to negotiate longer stay periods rather than proceed to trial. If the agreement is silent about whether there is a right to request extension on the stay, the court may determine, in light of what was bargained and the equities, that there should be no extension. See, e.g., Richenburg v. Giron, No. 14-SP-2157 (Boston Housing Ct. Aug. 25, 2014) (Pierce, C.J.). On the other hand, even if there is an explicit limit on the stay in the parties’ agreement, the court may find that a further extension is warranted because certain



facts were not known at the time the agreement was negotiated. See, e.g., O’Connor v. Harrington, No. 15-SP-513 (Boston Housing Ct. Sept. 8, 2015) (Muirhead, J.) (tenant discovered she had cancer and went into treatment after agreement signed; extension warranted where tenant had not been able to focus on relocation).

Where property was sold after an agreement for judgment was signed, and the owner did not assign the right to the summary process judgment and execution until after the sale, a trial court held that a subsequent assignment was not sufficient to give the right to the execution for possession, since the transferor no longer had the right of possession at that time. Instead the assignment was valid only as to the rent claim, and the new owner had to commence a new action. See Shah v. Shenett, No. 98-SP-03811 (Boston Housing Ct. Feb. 4, 1999) (Daher, C.J.).

A different kind of stay of execution can be provided for in an agreement for judg-ment—either a stay of execution with a right to reinstatement of the tenancy at the end of a fixed term, or a stay of execution for a fixed period, which can be shortened if there is noncompliance with the terms of the agreement for judgment. See G.L. c. 239, § 10. Where there is a right of reinstatement, the agreement for judgment will provide that if a certain period of time goes by and the tenant does not breach certain obligations, the tenancy will be recreated and the action dismissed by a date certain.

Where it is alleged that there is a breach of the agreement for judgment (with or without a right of reinstatement), the plaintiff must file a motion for issuance of exe-cution with the court, explaining that there has been a substantial violation of a mate-rial term of the agreement or stay; if the court finds such a breach, execution will issue. See Boston Hous. Auth. v. Cassio, 428 Mass. 112 (1998). As Cassio illustrates, the granting or denial of a motion to issue execution is appealable under an abuse of discretion standard. See St. Joseph’s Cmty., Inc. v. James, No. 11-SP-4457 (Boston Housing Ct. July 14, 2014) (Winik, F.J.) (single justice found abuse of discretion in not issuing execution). In evaluating a motion to issue execution where the tenant has raised issues of reasonable accommodation, the court is not limited to consideration of the agreement, but may consider the request as well. See MB Mgmt. Co. v. Mer-cado, 79 Mass. App. Ct. 1120 (2011) (Rule 1:28 decision) (no abuse of discretion). The court may also find it unnecessary to reach the reasonable accommodation issue if it finds there was no material breach. See HS Land Trust v. Howell, No. 13-SP-480 (Boston Housing Ct. Apr. 15, 2015) (Pierce, C.J.). However, if there have been ex-tended negotiations and the tenant was represented and had earlier opportunities to assert the issue of reasonable accommodation, the trial judge may find it inequitable to consider the issue. See Cruz Mgmt. v. Uyeda, No. 14-SP-3070 (Boston Housing Ct. Sept. 2, 2015) (Pierce, C.J.).

If a motion to issue execution is granted and the tenant seeks to appeal, however, there is no automatic stay of use of the execution under G.L. c. 239, § 5. Instead the tenant would need to convince the trial court or an appellate court to grant a stay un-der Mass. R. App. P. 6 in order to remain in possession during such an appeal.

Under G.L. c. 239, § 3, if there is a judgment in a residential nonpayment eviction and the landlord subsequently accepts all of the judgment amount due (including any



costs awarded) and intervening use and occupancy, the judgment is deemed satisfied, and a new tenancy is created. The tenant can move for relief in the existing action, or may bring an independent action for relief. See Piano Craft Guild v. Ridley, No. 02-SP-05849 (Boston Housing Ct. Mar. 12, 2003) (Chaplin, J.); Boston Pub. Health Comm’n v. Sim, No. 03-SP-01770 (Boston Housing Ct. Jan. 7, 2004) (Kyriakakis, C.J.) (execution should not issue if, as appears from motion, there was satisfaction). However, the statute provides that a landlord can reserve rights to levy upon the judgment by accepting all of such funds except the court-awarded costs.

(c) Levy

Under G.L. c. 239, § 3, the tenant must be given at least forty-eight hours’ written notice before the execution is to be levied upon. The notice must state the date and time that levying will occur. The notice also must contain the signature, full name, full business address, and business telephone number of the officer, the name of the court, and the docket number of the action, and must be served in the same manner as the summary process summons and complaint.

Under a law that took effect in late 2004, see 2004 Mass. Acts c. 271 (amending G.L. c. 239, § 3), the “forty-eight-hour” notice must also inform the tenant that the con-stable or deputy sheriff will place the tenant’s personal property from the apartment at a storage company that is licensed by the Department of Public Safety. The notice must include the address and phone number of the Department of Public Safety as well as the full name, address, and phone number of the storage company. The stor-age company must be within a reasonable distance of the apartment or any place the tenant designates on or before the move. The notice must advise the tenant that the storage company may sell his or her property if it is not claimed within six months and that funds from the sale can be used to pay any unpaid storage fees. The notice must also inform the tenant that the storage company should be notified in writing of any change in the tenant’s mailing address. The storage law was amended in late 2010 (effective March 2011) to clarify that the storage facility must be located within the Commonwealth and within a twenty-mile radius of the land or tenements from which the personal property is removed. See 2010 Mass. Acts c. 393.

The Hampden Housing Court has advised constables and sheriffs in its area that in counting the forty-eight–hour period, Saturdays, Sundays, and legal holidays are not included. See Memorandum from Hon. William H. Abrashkin (Feb. 27, 1989) (based in part on Mass. R. Civ. P. 6). The levying can occur (and the notice of levying can be given) only between the hours of 9:00 a.m. and 5:00 p.m., Monday through Friday (excluding legal holidays).

The tenant has the right to request that the constable or deputy sheriff store his or her belongings at another location (for example, a relative’s house) to avoid paying storage costs or for any other reason. The tenant must notify the constable or deputy sheriff of this in writing at or before the time of removal of the property. G.L. c. 239, § 4(a).

The constable or deputy sheriff who moves the belongings must give the tenant a signed written receipt describing all of the property removed. If the tenant is not



present during the levy, the officer must mail this receipt to the tenant at his or her “last and best known address” and file it in the court where the eviction case was heard. The storage company must also provide a written receipt, setting forth a de-scription of the property stored. G.L. c. 106, § 7-202(f); G.L. c. 239, § 4(a), (d).

Within seven days of the property being placed in storage, the storage company must mail (by registered or certified mail) or hand deliver to the tenant a written statement providing required information on the terms of the storage. See Exhibit 4U for a checklist summarizing the required contents of the notice.

The landlord pays for the costs of moving the tenant’s property to the storage place; the landlord is entitled to be reimbursed by the tenant for this cost. G.L. c. 239, § 4(c). The tenant is responsible for paying monthly storage fees but can be charged only for the time that the property is actually stored. The storage company cannot demand a minimum storage fee or add on extra docking fees, administrative fees, or warehouse labor fees. G.L. c. 239, § 4(b).

The tenant can get the stored property at any time upon payment of all of the monthly storage fees that are owed. If the tenant does not claim the property after six months from the date that it was stored, the storage company may sell it and retain the pro-ceeds to the extent necessary to pay the monthly storage fees. If prior to the sale the tenant pays the storage company half of all storage fees, plus reasonable costs the storage company incurred in preparing for the sale, the tenant has a right to postpone the sale for three months. G.L. c. 239, § 4(e)–(f).

Several decisions have held that a landlord cannot recover its postjudgment costs within the summary process action, but only the costs of filing the complaint and constable fees. The landlord would need to pursue an independent action for the costs associated with levying on the execution. See Briceno-Farrier v. Chima, 82 Mass. App. Ct. 1114 (2012) (Rule 1:28 decision); Rezende v. Awogboro, No. 15-SP-977 (Boston Housing Ct. July 23, 2015) (Pierce, C.J.); Snow v. Testa, No. 99-SP-03026 (Boston Housing Ct. Dec. 2, 1999) (Daher, C.J.).

While an execution for possession is time limited, any money judgment remains valid for twenty years. G.L. c. 235, § 23. There may be other steps necessary for collec-tion. See, e.g., Lima v. Lewis, No. 07-SP-561 (Boston Housing Ct. Feb. 20, 2014) (Pierce, C.J.) (where there was a levy and suspension, execution became void under G.L. c. 236, § 49A after six years elapsed—suggesting alternative steps parties could have taken to protect rights, and denying motion to reissue execution).

MCLE thanks Doris M. Rezza for her earlier contributions to this chapter.



EXHIBIT 4A—Rental Application

DATE

NAME OF APPLICANT HOME PHONE

INITIAL IF OVER 18 YEARS OF AGE

PRESENT ADDRESS DATES OF CURRENT OCCUPANCY: FROM TO

CITY STATE

AUTOMOBILE: MAKE/YEAR/REG. STATE & NO

SOCIAL SECURITY #

PRESENT LANDLORD

COMPLETE ADDRESS PHONE NUMBER

FORMER LANDLORD


OCCUPANCY FROM TO

CURRENT EMPLOYER


OCCUPATION/SOURCE OF INCOME TYPE OF BUSINESS



SALARY LENGTH OF EMPLOYMENT

FORMER EMPLOYER


LENGTH OF EMPLOYMENT

PERSONAL REFERENCE (NAME)


IN CASE OF EMERGENCY NOTIFY (NAME)


CREDIT REFERENCE


BANK–CHECKING ACCOUNT BRANCH ADDRESS

ACCOUNT NUMBER

BANK–SAVINGS ACCOUNT BRANCH ADDRESS

ACCOUNT NUMBER NAMES OF ALL CO-TENANTS (EACH ADULT MUST FILE A SEPARATE APPLICATION)



To Be Completed by Owner ADDRESS: CITY: TOTAL NO. OF OCCUPANTS: NUMBER OF ADULTS: NUMBER OF CHILDREN: NUMBER OF PETS: Base Rent per Month $ (Subject to escalation as set forth in lease)

Other Monthly Charges: (e.g., parking, etc.) Key/Lock Last Month’s Rent Security Deposit OCCUPANCY DATE RENT BEGINS

Deposit on Account

Balance Due upon Acceptance

TERM OF LEASE FROM (DATE) TO (DATE)



Base rent and other monthly charges are due andpayable on the first of each month in advance.

Pursuant to Massachusetts law, the Owner shall not make any inquiry concerning the race, religious creed, color, national origin, sex, sexual orientation, age (except if a minor), ancestry or marital status of the applicant, or concerning the fact that the applicant is a veteran or a member of the armed forces or is handicapped. The appli-cant authorizes the Owner and/or Renting Agency to obtain cause to be prepared a consumer credit report relating to the applicant.

The Owner is not responsible for the loss of personal belongings caused by fire, theft, smoke, water or otherwise, unless caused by their negligence. The undersigned warrants and represents that all statements herein are true and agrees to execute upon presentation a housing lease or Tenancy-at-Will Agreement in the usual form, a copy of which the applicant has received or has had occasion to examine, which lease or agreement may be terminated by the Lessor if any statement herein is not accepted by the owner. This application and deposit are taken subject to previous applications.

THIS APPLICATION MUST BE ACTED UPON BY THE OWNER ON OR BEFORE

The renting agent, if any, is an independent contractor and has no authority to make any representation concerning the premises; the renting agent is only authorized to show the apartment for rent and to assist in the screening of rental applicants.

Renting Agent

Signature



EXHIBIT 4B—Request for Prior Landlord Reference

I give permission to _____ to request the following information concerning my de-sirability as a tenant.

DATE: Applicant’s Signature

To Whom it May Concern:

Your present/previous tenant _____ has applied for an apartment at _____.

We would appreciate your answering the following questions and returning this letter to us as soon as possible.

1. Number of people in family? _____

2. Number of bedrooms? _____

3. How long was the applicant your tenant? _____

4. Did the applicant have a lease and did the applicant stay for the full term? _____

5. What was the applicant’s monthly rent? _____

6. Did the rent include utilities? _____

If so, which ones? _____

7. Did the applicant pay his/her rent on time? _____

8. Did you ever receive complaints from other tenants regarding the applicant or members of the applicant’s family? _____

9. Would you recommend the applicant as a tenant? _____

Comments:

Landlord’s or Landlord’s Agent’s Signature

Phone Number:

Thank you for your cooperation.

Sincerely yours,



EXHIBIT 4C—Licensee Agreement

In consideration of the mutual undertakings contained herein, the adequacy and re-ceipt of which is hereby acknowledged, OWNER/managing agents for OWNER (hereinafter “OWNER”) hereby agrees that LICENSEE (hereinafter “Licensee”) may occupy the premises at STREET ADDRESS, UNIT, CITY, Massachusetts (“the premises”), which are the subject of an Occupancy Agreement for Judgment executed by and between OWNER and OCCUPANT (hereinafter referred to as “Occupant” or “Resident”), subject to the terms and conditions set forth below:

1. The Licensee may reside in the premises as the personal care attendant for the Occupant, provided, however, that if the Occupant is absent from the premises for a time in excess of seventy-two (72) hours, Licensee shall not reside upon the premises during that time. No other persons shall be permitted to reside upon the premises or to occupy the premises. It is hereby acknowledged and agreed by the parties that this agreement does not constitute a letting of the premises to the Li-censee. Licensee shall maintain a primary residence at another location other than the premises and shall receive all mail at such other location, not the premises.

2. (a) Licensee’s right to occupy the premises shall exist so long as the Licensee complies with the terms of this Agreement and with the requirements of any other agreement by and between Owner and Occupant. Upon breach of ei-ther this Agreement or such other agreement, Licensee agrees to vacate the premises within five (5) days of notice of such revocation.

(b) Further, Licensee’s right to occupy the premises shall terminate immediately upon Occupant’s death or vacating the premises, including removal by the Occupant to a nursing home or other medical facility for a period in excess of two (2) months. In the event of such termination, Licensee shall vacate within twenty-four (24) hours after receiving notice of such termination from Owner.

3. Licensee agrees to abide by the following restrictions:

(a) to live in a peaceful manner, respecting the rights of other persons in the building to privacy, security, and peaceful enjoyment;

(b) to maintain the premises in a clean condition and all property belonging to the premises in good order and condition, reasonable wear and tear excepted;

(c) not to paint, decorate or otherwise embellish and/or change nor make any additions or alterations to the premises;

(d) not to maintain pets or animals in the premises;

(e) not to install any water beds, washing machines, dryers, compactors, televi-sion or other outside aerials or any other appliance or equipment;

(f) not to store or place in or on windowsills, balconies, common areas or the exterior of the building any rubbish, trash, articles or substances;



(g) not to create or allow to be created by household members, family mem-bers, relatives, invitees, visitors or guests any unlawful, noisy, or otherwise offensive use of the premises; not to commit any disturbance or nuisance, public or private; not to obstruct free use of the common areas; not to create any substantial interference with the rights, comforts, safety or enjoyment of other persons in the building and/or development grounds.

4. During the use and occupancy period the Licensee shall commit no waste upon and shall cause no damage to the premises, and upon vacating same shall leave the premises in broom clean condition, including, but not limited to, the removal of all of the Licensee’s personal possessions.

5. Should the Licensee be in violation of this Agreement and shall fail to vacate the premises on or before five (5) days from the date of the receipt of the notice of such violation as set forth in Paragraph 2(a) above or shall fail to vacate within twenty four (24) hours after receipt of notice of termination as set forth in Para-graph 2(b) above, Owner shall have the right to immediately eject the Licensee from the premises by instituting a summary process action. In addition, Licensee shall be liable to Owner for any damages caused to the premises and for all costs if the Owners seek legal recourse to eject the Licensee, including reasonable at-torney’s fees.

6. Written notice from Owner to the Licensee shall be deemed to have been prop-erly given if mailed by registered or certified mail, postage prepaid, return re-ceipt requested, to the Licensee at the premises or if delivered or left in or on any part thereof, provided that if delivered or left, a copy be mailed, first class mail, postage prepaid, addressed to the Licensee at the premises.

7. The Occupant specifically confirms his/her full responsibility for the conduct of the Licensee, and recognizes that the Licensee’s failure to comply with the re-sponsibilities imposed by the lease may cause the lease to be terminated or may otherwise subject the Occupant to damages and penalties.

8. Nothing herein shall be interpreted as or to establish a landlord-tenant relation-ship between the parties and it is expressly understood that this is not a lease or any other instrument that creates a tenancy. Nothing in this Agreement shall be construed as affording to the Licensee anything other than a right to occupy the premises in accordance with the terms and conditions of this Agreement.

WITNESS OUR HANDS AND SEALS THIS _____ DAY OF _____, _____.

OWNER

LICENSEE



EXHIBIT 4D—Tenancy-at-Will

This form has been made available through the courtesy of the Greater Boston Real Estate Board, and is protected by the copyright laws.



EXHIBIT 4E—Standard Form Apartment Lease

This form has been made available through the courtesy of the Greater Boston Real Estate Board, and is protected by the copyright laws.



EXHIBIT 4F—Rent and Security Deposit Receipt

DATE:

TO:

RE:

Tenant Unit

Address Address

City Zip Code City Zip Code

We hereby acknowledge receipt of your check #_____ in the total amount of $_____ to be applied as follows:

1. First Month’s Rent _____/_____/_____ $

2. Last Month’s Rent $

3. Purchase or Installation cost for key and lock $

4. Security Deposit (see attached condition form) $

SECURITY DEPOSIT

A. The Landlord acknowledges receipt from the Tenant of $_____ (an amount not to exceed one month’s rent) to be held by the Landlord during the term hereof, or any extension or renewal, as a security deposit pursuant to the terms hereof; it being understood that this is not to be considered prepaid rent, nor shall damages be limited to the amount of the security deposit.

B. The Landlord acknowledges that, subject to damages prescribed by law, he/she shall, within thirty (30) days after the termination of this lease or upon the Ten-ant’s vacating the premises completely together with all his/her goods and posses-sions, whichever shall last occur, return the security deposit or any balance re-maining, any interest due thereon, if due, after deducting:

(1) any unpaid rent which has not been validly withheld or deducted pursuant to the provisions of any law;

(2) any unpaid increase in real estate taxes which the Tenant is obligated to pay pursuant to a tax escalation clause which conforms to the requirements of G.L. c. 186, § 15C; and



(3) A reasonable amount necessary to repair any damages caused to the premises by the Tenant or by any person under the Tenant’s control or on the premises with the Tenant’s consent, reasonable wear and tear excluded. In the case of such damage, the Landlord shall provide the Tenant within thirty days with an itemized list of damages, sworn to by the Landlord or his/her agent under pains and penalties of perjury, itemizing in precise detail the nature of the damage and of the repairs necessary to correct it, and written evidence, such as estimates, bills, invoices or receipts, indicating the actual or estimated cost thereof.

C. The Landlord must submit to the Tenant a separate written statement of the pre-sent condition of the premises, as required by law. If the Tenant disagrees with the Landlord’s statement of condition, the Tenant must attach a separate list of any damage existing in the premises and return the statement to the Landlord. No amount shall be deducted from the security deposit for any damage which was listed in the statement of condition or in any separate list submitted by the Tenant and approved by the Landlord or the Landlord’s agent, unless the Land-lord subsequently repaired or caused to be repaired said damage and can prove that the renewed damage was unrelated to the prior damage and was caused by the Tenant or by any person under the Tenant’s control or on the premises with the Tenant’s consent.

D. If the Landlord transfers the premises, the Landlord must transfer the security deposit or any balance thereof, and any accrued interest, to the Landlord’s suc-cessor in interest for the benefit of the Tenant.

As required by law, the security deposit is presently or will be held in the following separate interest bearing account:

at (Acct. Number) (Bank)

Address City Zip Code

If the security deposit is held for one year or longer from the commencement of the tenancy, the Tenant shall be entitled to interest on the amount of the security deposit at the rate of 5 percent per year, or other such lesser amount of interest as has been received from the bank where the deposit has been held, payable at the end of each year of the tenancy.

LAST MONTH’S RENT

Pursuant to applicable law, the Tenant is entitled to interest on last month’s rent paid in advance at the rate of 5 percent per year, or other such lesser amount of interest as has been received from the bank where the last month’s rent has been held, from the first day of tenancy, payable at the end of each year of tenancy and prorated upon termination. Interest shall not accrue for the last month for which rent was paid in



advance. The Tenant should provide the Landlord with a forwarding address at the termination of the tenancy, indicating where such interest may be given or sent.

Date Received _____/_____/_____

Authorized Signature:

Landlord/Agent

Landlord Agent

Address Address


Phone Phone



EXHIBIT 4G—Apartment Condition Statement

This is a statement of the condition of the premises you have leased or rented. You should read it carefully in order to see if it is correct. If it is correct you must sign it. This will show that you agree that the list is correct and complete. If it is not correct, you must attach a separate signed list of any damage which you believe exists in the premises. This statement must be returned to the lessor or his agent within 15 days after you receive this list or within 15 days after you move in, whichever is later. If you do not return this list, within the specified time period, a court may later view your failure to return the list as your agreement that the list is complete and correct in any suit which you may bring to recover the security deposit.

TO: RE: Tenant Unit

Address Address


We have examined the premises and have found the present condition to be as fol-lows:

Date Received ___/___/___ Authorized Signature: Landlord/Lessor/Agent

Landlord/Lessor Agent

Address Address


Phone Phone

AGREED AND ASSENTED TO:

___/___/___ Tenant Date



EXHIBIT 4H—Security Deposit Return Form

DATE:

NAME:

ADDRESS:

RE: Security Deposit Information for: (Tenant Name)

(Apartment Address)

Dear :

We have inspected the apartment which you have recently vacated and have found it:

_____ Clean and without damage. We appreciate your consideration and extend our thanks.

_____ With the damages listed on the attached sheet for which you are charged. (Attach invoices, receipts or contractor bills or estimates for repairs.)

As a result of the inspection (check one):

_____ We are enclosing a check for the balance due to you as calculated below.

_____ We are billing you as calculated below.

CALCULATION:

1. Security Deposit received $

2. Interest Earned since (+) $

3. Less Damage Deducted (see attached sheet) (–) $

4. Less Rent owed from _____ to _____ (–) $

5. Less Unpaid Tax Increases (–) $

6. Amount of (check one)



a. _____ Security Deposit Returned $ (Check Number _____)

b. _____ Security Deposit Returned to $ Department of Public Welfare

c. _____ Amount due and payable $

Please send check to:

SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY.



EXHIBIT 4I—Notice to Quit Terminating Tenancy at Will

LETTERHEAD

Date

Tenant’s Name Tenant’s Address, Unit # City, MA Zip Code

NOTICE TO QUIT TERMINATING TENANCY AT WILL

Dear Mr./Ms. Tenant’s Last Name:

You are hereby notified to quit and deliver up at the expiration of that month next which begins next after your receipt of this notice, the premises which you occupy, to wit:

The entire premises located at Tenant's Address, Unit #, City, Massachusetts, together with all the landlord's appurtenances thereto belonging.

If you remain in the above unit on the date specified for termination, we may seek to enforce termination only by bringing a judicial eviction, at which time you may present a defense; you may be required to pay court costs and attorney’s fees if it is instituted.

All monies paid by you hereafter will be accepted solely for the use and occu-pancy of the aforementioned premises and are received with a reservation of all the rights under this Notice to Quit in any eviction proceedings based thereon. No ten-ancy is intended to be created by the acceptance of such monies or by any other act or failure to act on our part.

You are hereby notified to produce this notice at any court where this case may be heard.

COMMONWEALTH OF MASSACHUSETTS

_____, ss. _____, _____

I this day served the within named _____, a notice, (by giving to him/her in hand) (by leaving at his/her last and usual place of abode) (With any adult member of the household) the (original) (copy) of the within notice.

Said service was made at _____, Massachusetts. Afterwards, on the same day, I mailed a second copy hereof to such place of abode.



Printed name of person serving Signature

Witness



EXHIBIT 4J—Notice to Quit Tenancy at Will with Offer of New Tenancy

Date

Tenant Name Street Address #Unit City, MA Zip Code

NOTICE TO QUIT TERMINATING TENANCY AT WILL WITH OFFER OF NEW TENANCY PURSUANT

TO G.L. c. 186 sec. 12

Dear Mr./Ms./Mrs. Tenant Name:

You are hereby notified to quit and deliver up at the expiration of that month next following your receipt of this notice, the premises which you occupy, namely:

The entire premises located at Street Address #Unit, City, Massachusetts, to-gether with all the landlord’s appurtenances thereto belonging.

If you remain in the above unit on the date specified for termination except and unless you accept the offer for a new tenancy contained herein, we may seek to en-force termination only by bringing an action in court, at which time you may present a defense.

This will also serve as notice to you, pursuant to G.L. c. 186 sec. 12, that we are willing to establish a new tenancy with you for the same premises at a rate of (RENEWAL RENT) $_____.00 per month, with rent due on or before the first day of the month, commencing (COMMENCEMENT DATE) _____, 2__, under the same or similar terms and conditions contained in your prior Tenancy at Will Agreement, with the exception of the amount of the monthly rent.

You must accept this offer by signing the Notice of Intention which appears at the bottom of this Notice to Quit and returning it to our offices at _____, _____, Massachusetts on or before (DEADLINE DATE: Approximately 15 days after service of notice) _____, 2__. The inclusion of this offer shall not affect the validity of this notice if you fail to accept such offer. If you accept this offer, you will be expected to sign a Tenancy at Will Agreement on or before that date, with a commencement date of (COMMENCEMENT DATE) _____, 2__, and begin paying the amount of (RENEWAL RENT) $_____.00 for (FIRST MONTH OF NEW TENANCY) $_____.00, on or before the first of that month. Further, in order to accept this offer, you must not be in arrears in your rent. If we do not receive a signed and completed Notice of Intention on or before (DEADLINE DATE) _____, 2__. we will assume that you have rejected this offer and plan to vacate the premises on or before the ter-mination date set forth in this notice.



All monies paid by you hereafter will be accepted solely for the use and occu-pancy of the aforementioned premises and are received with a reservation of all the rights under this Notice to Quit in any eviction proceedings based thereon. No ten-ancy is intended to be created by the acceptance of such monies or by any other act or failure to act on our part except and unless you accept the offer of the new tenancy as stated above.


Management Company Name By:

Property Manager

BY CONSTABLE cc: Catherine F. Downing, Esq.

I hereby accept the terms stated above and would like to renew my tenancy in ac-cordance with the terms and conditions contained in this notice.

DATE:

Tenant Name



EXHIBIT 4K—Notice to Quit for Lease Violation

ESTA CARTA ES IMPORTANTE: FAVOR TRADUZCA

Date


NOTICE TO QUIT AND/OR NOTICE OF TERMINATION

PURSUANT TO G.L. c. 139 §19


You are hereby notified to quit and deliver up at the expiration of that month next which begins next after your receipt of this notice, the premises which you occupy, to wit:

The entire premises located at Tenant’s Address, Unit #, City, Massachusetts, together with all the landlord’s appurtenances thereto belonging.

The reason that your tenancy is being terminated pursuant to your Residency Agreement, a copy of which is attached hereto and incorporated herein, is because you have caused excessive disturbances and/or abuses which interfere with the gen-eral peace and/or welfare of other residents and/or that you have been verbally and/or physically abusive to staff and/or that you have participated in illegal activities of any kind, specifically that on or about February 2, 2011, you approached the front desk area and began yelling and screaming at a staff member, using obscenities, including calling him a “f**king asshole” and also yelling disparaging remarks about his job performance, that you then left the building, however, it appears that you continued your tirade outside and when the staff member left the building a short while later, you waited until he passed you and then you kicked him, that police were called to the premises based upon the fact that you had assaulted and battered the staff mem-ber and/or that you have violated the provisions of G.L. c. 139 § 19 by committing an act or acts which would constitute a crime involving the use or threatened use of force against a person legally on the development grounds, based upon the facts stated above. Additionally, your tenancy has been voided pursuant to G.L. c. 139 § 19 in that you have committed an act or acts which would constitute a crime involving the use or threatened use of force against a person legally on the development grounds, on the basis of the facts stated above.

If you remain in the above unit on the date specified for termination, we may seek to enforce termination only by bringing a judicial eviction, at which time you may present a defense; you may be required to pay court costs and attorneys’ fees if it is instituted.



All monies paid by you hereafter will be accepted solely for the use and occu-pancy of the aforementioned premises and are received with a reservation of all the rights under this Notice to Quit in any eviction proceedings based thereon. No ten-ancy is intended to be created by the acceptance of such monies or by any other act of on our part.


Signature


_____, ss. _____, _____




Witness



EXHIBIT 4L—Rental Period Notice to Quit

LETTERHEAD

Date


RENTAL PERIOD NOTICE TO QUIT


You are hereby notified to quit and deliver up at the expiration of that month which begins next after your receipt of this notice, the premises which you occupy, to wit:

The entire premises located at Tenant’s Address, Unit #, City, Massachusetts, together with all the landlord’s appurtenances thereto belonging.

The reason for this notice is: non-payment of rent. As of the above date, the amount of your arrearage balance is calculated as follows:

Month, year $000.00 Month, year $000.00 TOTAL DUE $000.00

If you remain in the above unit on the date specified for termination, we may seek to enforce termination only by bringing a judicial eviction, at which time you may present a defense; you may be required to pay court costs and attorneys’ fees if it is instituted.

If you are a tenant at will and have not received a Notice to Quit for nonpayment of rent within the twelve (12) months preceding your receipt of this Notice, you have a right to prevent termination by paying or tendering to your landlord’s attorney or the person to whom you customarily pay your rent, the full amount of rent due within ten (10) days after your receipt of this notice.

If any tender of monies or payments does not comply with the requirements noted above or otherwise cure or excuse the breach as provided by law, any monies paid by you after the date of this notice shall be accepted for use and occupation only and not for rent, shall not waive this notice or any subsequent eviction, nor shall it create or reinstate any tenancy. No tenancy is intended to be created by any other act or failure to act on the part of our client, including, but not limited to, the signing of any Lease, Occupancy Agreement or lease addendum, Occupancy Agreement or lease renewal and/or any other documentation, whether in connection with any annual or interim recertification of household income and/or composition or otherwise. The service of



this Notice to Quit or the reference herein to a “Lease”, “Occupancy Agreement”, “Occupancy Agreement Addendum”, “landlord”, “tenancy”, or “lease” shall not be deemed to be a recreation of any tenancy, nor shall it operate as a waiver of any of our rights under any prior notices to quit, nor shall it operate as a waiver of any of our rights under any prior judgments or Agreements related to your occupancy upon the premises.

You have the right to discuss the proposed termination of your tenancy with your landlord at any time prior to the termination date set forth in this notice. If you re-quest this discussion, the landlord agrees to discuss the termination with you. Per-sons with disabilities have the right to request reasonable accommodations to partici-pate in the hearing process. If you are considered disabled under applicable state or federal laws, you have a right to a reasonable accommodation to resolve Occupancy Agreement violations if such violations were the result of any such disability.


NOTICE OF IMPORTANT RIGHTS

Pursuant to the federal Fair Debt Collection Practices Act (15 USCS sec. 1692), a consumer debtor is required to be sent the following notice: (1) unless the consumer, within thirty days after receipt of this notice, disputes the validity of the debt or any portion thereof, the debt will be assumed to be valid by the debt collector; (2) if the consumer notifies the debt collector in writing within the thirty-day period that the debt or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and copy of such verification or judgment will be mailed to the consumer by the debt collector; and (3) upon the consumer’s written request within the thirty-day period, the debt collector will pro-vide the consumer with the name and address of the original creditor, if different from the current creditor. We are acting as a debt collector, pursuant to the federal Fair Debt Collection Practices Act. Any information obtained will be used for that purpose. The Federal Trade Commission has ruled that the federal Fair Debt Collec-tion Practices Act does not preclude the institution of legal action prior to the expira-tion of the thirty-day period.

Signature


_____, ss. _____, _____






Witness



EXHIBIT 4M—Use and Occupancy Letter

Date:

To :

This will acknowledge receipt of _____ paid by you on account of your occupancy of _____, Massachusetts.

In receiving this payment, the Landlord does not waive the termination notice previ-ously sent, nor does the Landlord waive any summary process action heretofore or hereafter commenced. Additionally, by accepting such payment, the Landlord does not consent to the commencement of a new tenancy or the reinstatement of the old tenancy.

If you have any questions regarding this matter, please contact _____ at _____.

Landlord

By:

Position:



EXHIBIT 4N—Summary Process Summons and Complaint



EXHIBIT 4O—Housing Court Standing Order 1-01

HOUSING COURT STANDING ORDER 1-01

A Lawyer for a Day Program (“LDP”) is a program in which attorneys, acting pro bono, provide limited legal advice to pro se litigants in the Housing Court on a first-come, first-served basis. It is hereby ORDERED that LDP programs shall be permit-ted in any Housing Court under the following guidelines:

1. The LDP shall be sponsored and administered by a state or local bar association or legal services organization, in conjunction with the Housing Court.

2. The LDP shall provide advice to all pro se litigants in the Housing Court, tenant or landlord, on a first-come, first-served basis.

3. Attorneys participating in the LDP shall follow all applicable guidelines and provisions of the Massachusetts Rules of Professional Conduct.

4. No attorney providing advice to a pro se litigant as part of the LDP shall, by reason of providing that advice, be required to enter an appearance in any action in the Housing Court.

5. Attorneys participating in the LDP shall be permitted to assist or represent pro se litigants in mediation in connection with an action in the Housing Court. No at-torney assisting or representing a pro se litigant in such mediation as part of the LDP shall, by reason of such assistance or representation, be required to enter an appearance in any action in the Housing Court. If the LDP attorney assisting or representing a pro se litigant in mediation does not enter an appearance in that litigant’s action, the LDP attorney may assist litigant in preparing a Motion for Continuance of Trial. Such a motion shall be allowed if good cause is shown. If the LDP attorney assisting or representing a pro se litigant in mediation does enter an appearance in that litigant’s action, the litigant shall be entitled to a two (2) week continuance of trial.



EXHIBIT 4P—Housing Court Standing Order 1-10

HOUSING COURT DEPARTMENT

STANDING ORDER 1-10 LIMITED ASSISTANCE REPRESENTATION

INTRODUCTION

Limited Assistance Representation (LAR) permits an attorney, either for payment or pro bono, to assist a self-represented litigant on a limited basis without undertaking a full representation of the client on all issues related to the legal matter for which the attorney is engaged.

On April 10, 2009, the Supreme Judicial Court issued an Order (effective May 1, 2009) providing that Limited Assistance Representation may be implemented in any Department of the Trial Court in such Divisions and in connection with such matters as each Trial Court Department Chief Justice, in his or her discretion and with the approval of the Chief Justice for Administration and Management, may prescribe.

ORDER

The Housing Court Department, with the approval of the Chief Justice for Admin-istration and Management, hereby adopts Housing Court Standing Order No. 1-10, to implement Limited Assistance Representation.

Notwithstanding any provisions to the contrary in any Rule of Court or Standing Order, it is hereby ORDERED that the following procedures shall apply in the Housing Court Department with respect to Limited Assistance Representation.

1. Matters for Which an Attorney May Enter a Limited Appearance

An attorney shall be permitted to enter a limited appearance on behalf of a self-represented litigant for the purpose of representing such a litigant in connection with any civil matter pending or filed on or after the effective date of this Stand-ing Order in any Division of the Housing Court Department.

2. Limited Assistance Representation

A qualified attorney may limit the scope of his or her representation of a client if the limitation is reasonable under the circumstances and the client gives in-formed consent. An attorney shall not be deemed a “qualified attorney” unless he or she completes one of the following information sessions on Limited Assis-tance Representation approved by the Chief Justice of the Housing Court De-partment: (1) the written and audio LAR materials developed by the LAR Advi-sory Group of the Supreme Judicial Court Steering Committee on Self-Represented Litigants, which are currently available through Senior Partners for Justice at www.spfj.org; (2) the “Building Your Practice with Limited Assistance



Representation” seminar periodically offered by Massachusetts Continuing Le-gal Education; (3) any LAR training and/or training materials developed and made available by the LAR Task Force of the Access to Justice Initiative. If an attorney previously completed an LAR information session approved by the Boston Municipal Court or Probate and Family Court prior to the issuance of this Standing Order, then such attorney need not complete another information session. By filing the Notice of Limited Appearance attached to this Standing Order, an attorney is certifying that he or she is qualified to appear as an LAR at-torney in the Housing Court Department. An attorney participating in the Law-yer for a Day Program pursuant to Housing Court Department Standing Order 1-01 need not be an LAR qualified attorney for the sole purpose of assisting or representing a self-represented litigant in mediation.

3. Limited Appearance

An attorney making a limited appearance on behalf of an otherwise unrepresented party shall file a Notice of Limited Appearance in the form attached to this Standing Order. The Notice shall state precisely the court event to which the lim-ited appearance pertains, and, if the appearance does not extend to all issues to be considered at the event, the Notice shall identify the discrete issues within the event covered by the appearance. An attorney may not enter a limited appear-ance for the sole purpose of making evidentiary objections. Nor shall a limited appearance allow both an attorney and a litigant to argue on the same legal issue during the period of the limited appearance. An attorney may file a Notice of Limited Appearance for more than one court event in a case. At any time, includ-ing during an event, an attorney may file a new Notice of Limited Appearance with the agreement of the client.

A pleading, motion or other document filed by an attorney making a limited ap-pearance shall comply with Rule 11(a), Mass.R.Civ.P., and/or cognate Depart-mental Rules, and shall state in bold type on the signature page of the document: “Attorney of [party] for the limited purpose of [court event].” An attorney filing a pleading, motion or other document outside the scope of the limited ap-pearance shall be deemed to have entered a general appearance, unless the attor-ney files a new Notice of Limited Appearance with the pleading, motion or other document.

Upon the completion of the representation within the scope of a limited appear-ance, an attorney shall withdraw by filing a Notice of Withdrawal of Limited Appearance in the form attached to this Standing Order, which notice shall in-clude the client’s name, address and telephone number, unless otherwise pro-vided by law. The attorney must file a Notice of Withdrawal of Limited Appear-ance for each court event for which the attorney has filed a Notice of Limited Appearance. The court may impose sanctions for failure to file such notice.

4. Service

Whenever service is required or permitted to be made upon a party represented by an attorney making a limited appearance, for all matters within the scope of



the limited appearance, the service shall be made upon both the attorney and the party. Service upon a party shall be at the address listed for the party in the No-tice of Limited Appearance. If the party’s address has been impounded by court order or rule, service of process on the party shall be made in accordance with the court order or rule. Service upon an attorney making a limited appearance shall not be required for matters outside the scope of the limited appearance.

5. Assistance in the Preparation of Documents

An attorney may assist a client in preparing a pleading, motion or other docu-ment to be signed and filed in court by the client, a practice sometimes referred to as “ghostwriting.” In such cases, the attorney shall insert the notation “pre-pared with assistance of counsel” on any pleading, motion or other document prepared by the attorney. The attorney is not required to sign the pleading, mo-tion or document, and the filing of such pleading, motion or document shall not constitute an appearance by the attorney.

Steven D. Pierce Chief Justice Housing Court Department

Effective Date: November 1, 2010

Dated: August 30, 2010



EXHIBIT 4Q—District Court Standing Order 1-11

TRIAL COURT OF THE COMMONWEALTH DISTRICT COURT DEPARTMENT

STANDING ORDER No. 1-11

LIMITED ASSISTANCE REPRESENTATION AND SUBSTITUTE COUNSEL

(Applicable to All Divisions)

This Standing Order is promulgated by the Chief Justice of the District Court De-partment pursuant to the provisions of G.L. c. 211B, § 10 and G.L. c. 218, § 43. This Standing Order addresses two issues concerning the representation of parties by counsel in non- criminal proceedings in the District Court Department of the Trial Court. Part A of the Standing Order addresses the “unbundling” of legal services and implements the Order In Re: Limited Assistance Representation issued by the Mas-sachusetts Supreme Judicial Court, effective May 1, 2009. The Standing Order provides the parameters for limited assistance representation in the District Court Department.

Part B of the Standing Order addresses court proceedings where an attorney substi-tutes or “covers” for an attorney who has already filed a general appearance on be-half of the litigant but is not present at that particular court proceeding. The Standing Order requires substitute counsel to file an appearance. The Order permits a time limited appearance, thereby acknowledging a common practice in certain civil pro-ceedings in the court while permitting the court to maintain an accurate record of all attorneys who appear before the court. This part of the Order applies exclusively to those litigants who are already represented by counsel, and not to the unbundling of legal services, which is addressed by the first part of this Standing Order. The Stand-ing Order does not address the legal or ethical requirements applicable to such repre-sentation, which are governed by the Code of Professional Conduct, S.J.C. Rule 3:07.

PART A: LIMITED ASSISTANCE REPRESENTATION

1. Limited Assistance. Limited Assistance Representation (LAR) permits an attor-ney to assist a self-represented litigant for discrete, limited purposes, subject to a written agreement between the attorney and the client, and allows the attorney to withdraw from the representation after completion of the limited services he or she agrees with the client to provide. The limitation on appearance must be rea-sonable under all the circumstances, and the attorney must ensure that the client gives his or her informed consent to the attorney’s limited appearance prior to engagement. An attorney and litigant are not permitted to argue on the same le-gal issue during the period of limited appearance. An attorney may not enter a limited appearance for the sole purpose of making evidentiary objections. An at-torney may appear pro bono or on a compensated basis.



2. Applicability. This Standing Order applies to any Limited Assistance Represen-tation of a plaintiff or defendant in any pending or newly-filed non-criminal ac-tion in any division of the District Court. An attorney may not file a limited ap-pearance solely for the purpose of obtaining a continuance.

3. Attorney Qualification. As a prerequisite to filing any limited appearance under the terms of this Standing Order, an attorney must complete an information ses-sion on LAR approved by the Chief Justice.1

1 The Chief Justice of the District Court has approved the following LAR information sessions for attorney qualification: (1) the written and audio LAR materials compiled by the Expanding Justice Working Group, an adjunct to the Supreme Judicial Court Steering Committee on Unrepresented Litigants, currently available through Senior Partners for Justice at www.spfj.org; and (2) the LAR seminars offered by Massachusetts Continuing Legal Education, Inc.

4. Notice of Limited Appearance. An attorney making a limited appearance on behalf of a self-represented litigant shall file with the clerk’s office in the court in which the case is filed or being filed a Notice of Limited Appearance in the form approved by the Chief Justice. The Notice of Limited Appearance shall clearly identify the event(s) and/or purpose(s) for which the attorney and the cli-ent have agreed that the attorney will assist the client and shall be accompanied by a certification in the form approved by the Chief Justice that the attorney has completed the information session required in paragraph 4 of this order. Any limited appearance filed in connection with a court event shall extend to all is-sues scheduled or reasonably anticipated to be considered at that event unless the court permits otherwise. The Notice of Limited Appearance must be signed by the attorney and the party.

5. Attendance by party. Any party represented by a lawyer at a court event on a limited representation basis must also attend the court event unless the court permits otherwise.

6. Notice of Withdrawal of Limited Appearance. Upon completion of the repre-sentation within the scope of the limited appearance, an attorney shall file with the clerk in the court in which the case is pending a Notice of Withdrawal of Limited Appearance in the form approved by the Chief Justice. The Notice of Withdrawal of Limited Appearance must be signed by the attorney and the party.

7. Court May Not Expand Agreed-Upon Scope of Limited Representation. The scope of the limited representation is defined by the agreement between the at-torney and the client and must be consistent with the terms of this order. The court may not require the attorney to represent the client beyond the scope of the agreement described in the Notice of Limited Appearance. The court must per-mit an attorney to withdraw from the limited representation once the terms of the limited assistance agreement have been met.

8. Revised Notices of Limited Appearance. Provided the client gives his or her informed consent to doing so, an attorney may, at any time before filing a Notice of Withdrawal of Limited Appearance, file a revised Notice of Limited Appear-ance changing or expanding the original terms of the limited appearance, provided



however that if the court event has commenced, court approval of any revised Notice of Appearance must be obtained.

9. Counsel to Serve Copies of Notices On Opposing Party. An attorney who files any Notice of Limited Appearance, revised Notice of Limited Appearance, and/or Notice of Withdrawal shall serve a copy of the same, with a certificate of ser-vice, by prepaid first- class mail on each opposing party’s attorney or, if a party is not represented by an attorney, on that party at the party’s address of record.

10. Filings to Identify Existence of LAR Appearance. Any pleading, motion or other document filed by an attorney in the course of his or her limited appear-ance in a given case shall comply with Mass. R. Civ. P. 11(a) and shall state in bold type on the signature page of the document, “Attorney of [party] for the limited purpose of [court event].”

11. Effect of Filing Documents Beyond Scope Identified in Notice of Limited Appearance. An attorney who files a pleading, motion or other document out-side the scope of the limited appearance shall be deemed to have entered a gen-eral appearance, unless the attorney files a revised Notice of Limited Appearance with the pleading, motion or other document.

12. Service. Whenever service pursuant to Mass. R. Civ. P. 5 is required or permit-ted to be made upon a party represented by an attorney making a limited appear-ance, service for all matters within the scope of the limited appearance shall be made upon both the attorney and the party. Service upon a party shall be at the address listed for the party in the Notice of Limited Appearance. If the party’s address has been impounded by court order or rule, service of process on the party shall be made in accordance with the court order or rule. Service upon an attorney making a limited appearance shall not be required for matters outside the scope of the limited appearance. If more than one Notice of Limited Appear-ance has been filed in the case, service shall be made upon the client and the attorney at the addresses listed for each in the most recent Notice of Limited Appearance.

13. Court Notice. Whenever a clerk is required to provide notice of a judgment, order or any other event or proceeding where a party is represented by an attor-ney making a limited appearance, the clerk shall provide notice to the party and to the attorney making a limited appearance unless the attorney has already filed a notice of withdrawal of appearance.

14. “Ghostwriting;” Document Preparation. An attorney may assist a client in preparing a pleading, motion or any other document to be signed and filed in court by the client in any District Court non-criminal case. An attorney assisting with the document preparation need not file a Notice of Limited Appearance with the court nor complete an information session. Such attorney shall insert the notation, “prepared with assistance of counsel” in bold type on any pleading, motion or other document prepared by the attorney. The attorney is not required to sign the pleading, motion or document, and the filing of such pleading, motion



or document shall not constitute a limited or general appearance by the attorney in the case.

PART B: SUBSTITUTE COUNSEL

15. Substitute Counsel. The term “substitute counsel,” shall mean one attorney standing in or “covering” for another attorney who has already filed a general appearance on behalf of a litigant.

16. Notice of Appearance. In cases where a party is already represented by counsel who has filed a general appearance in the case, an attorney who is not current counsel of record shall not appear in court to answer for that party until he or she has filed with the court a written notice of appearance as substitute counsel. Such appearance may be time-limited and may indicate that the attorney is ap-pearing as substitute counsel solely for that day's proceedings. The scope of an appearance as substitute counsel may not otherwise be limited, and substitute counsel must be authorized and prepared to proceed with all matters before the court at that time. Any such notice of appearance as substitute counsel shall be entered on the docket and filed with the case papers.

17. Notice to Substitute Counsel. The clerk need not notify counsel who has filed an appearance as substitute counsel of any orders, future events or proceedings in that case.

/s/ Lynda M. Connolly

Lynda M. Connolly Chief Justice of the District Court

Promulgated: January 25, 2011 Amended Order effective, nunc pro tunc: January 25, 2012



EXHIBIT 4R—MLRI Discovery Booklet*

* MCLE thanks the Massachusetts Law Reform Institute for permission to reprint this material.



EXHIBIT 4S—Plaintiff’s Sample Responses to Discovery Requests and Memorandum in Opposition to Defendant’s Motion to Compel


SUFFOLK, ss TRIAL COURT OF MASSACHUSETTS HOUSING COURT DEPARTMENT CITY OF BOSTON DIVISION DOCKET NUMBER 06-SP-0294

) PROFESSIONAL MANAGEMENT COMPANY,

) )

Plaintiff, ) PLAINTIFF’S ANSWERS TO DEFENDANT’S INTERROGATORIES

v. ) ) TENANT, ) Defendant ) )

The Plaintiff hereby answers the Defendant’s Interrogatories as follows:

INTERROGATORY NUMBER 1:

What is the name, address, telephone number, occupation and relationship to the tenant’s apartment of the person answering these questions?

ANSWER TO INTERROGATORY NUMBER 1:

John Smith, Property Manager, Professional Management Company, 195 Ken-rick Street, Dorchester, Massachusetts (617) 555-0700.


What is the name and address of each owner of the apartment, and the date s/he bought the building?


The Plaintiff objects to this Interrogatory on the grounds that it seeks infor-mation which is not relevant to the subject matter of the pending action and which is not reasonably calculated to lead to the discovery of admissible evidence.

Without waiving this objection, the Plaintiff responds as follows: The premises are managed by Professional Management Company and owned by Macadamia Housing LLC.




Please describe all members of the tenant’s household (including the tenant) by name, age, gender, and date of move-in.


OMITTED BY DEFENDANT


Please describe all the terms of the tenancy, including but not limited to:

a. The original rent;

b. The day each month on which rent is due;

c. Whether the rental agreement was oral or in writing, and the time period of such an agreement;

d. The responsibility of each of the parties for payment for heat, hot water, electricity, cooking fuel for the apartment, and for any common area utilities;

e. Any additional terms of the original tenancy; and

f. Any changes in terms of the tenancy (including but not limited to changes in rent), including the dates (s) of all such changes, whether the changed terms were in writing, and what the changed terms were.



Without waiving this objection, the Plaintiff answers as follows: The Defendant became a resident of the subject premises on or about February 1, 2002. The premis-es were rented to the Defendant by Professional Management Company. On Febru-ary 1, 2003, the Defendant signed a lease, which terminated by its own terms on Jan-uary 31, 2004. The Defendant has not signed an extension of the prior lease nor a new lease, so when the lease expired, the Defendant became a tenant at will, under the terms set forth in her prior lease. See copy of lease attached hereto and incorpo-rated herein.


State each and every one of your reasons for evicting the tenant, whether or not stated in the complaint. If you claim the tenant, household member, or guest violated a provision of the lease or rental agreement, please describe each such violation in full and complete detail, including but not limited to:



a. What happened;

b. The dates of each such alleged violation;

c. When and how you learned of the alleged violation;

d. The names and addresses of anyone with knowledge of or information about such alleged violations;

e. The substance of the information known to each person; and

f. What if anything you did after becoming aware of each alleged violation, including the substance and date (s) of any written or oral communication to the tenant regarding such alleged violation and the tenant’s response (s) to such communication (s).


The Defendant’s tenancy was terminated for failure to pay rent. The Defendant has an outstanding balance of $2,100.00 for unpaid rent, including rent of Seven Hundred ($700.00) Dollars per month for December, 2008, January and February, 2009. Based upon the Defendant’s failure to pay her rent, the Defendant was served with a Notice to Quit for non-payment of Rent on January 5, 2009, by Constable George Smith by having a copy hand delivered to the Defendant at 237 Pine Avenue, Apt #2D, Roxbury, Massachusetts 02119. See copy of documents attached hereto and incorporated herein.


Please state how much rent (including “use and occupancy”) if any, is owed, in-cluding the specific months and amounts in which rent was not paid, and the total amount that you claim is owed.


See Plaintiff’s Answers to the Defendant’s Interrogatory Number 5 above.


For each person with knowledge of the facts alleged in the landlord’s complaints and/or in the tenant’s answer/counterclaim, please state:

a. His/her name, address, and telephone number;

b. The substance of the information known to such person; and

c. The expert training/ qualifications of such person, if any.





Without waiving this objection, the Plaintiff answers as follows: The identity of such persons is included in the Plaintiff’s Answers to the Defendant’s Interrogatories and Plaintiff’s Responses to Defendant’s Request for Production of Documents and the documents attached thereto.


State the type of Notice to Quit (or notice of termination of tenancy), if any, re-lied on in this action, the method of service, the date of service, the name of the per-son who received the notice, and the name and address of the person who served the notice. If more than one copy of the notice was served on the tenant, please specify the information for each form of service. If the Notice to Quit was also served on a third party other than the tenant, please provide similar information regarding such service.


See Plaintiff’s Answer to Interrogatory Number 5 above and the document pro-duced thereto and incorporated herein.


If the tenant has ever paid or offered to pay any rent owed after receiving the Notice to Quit, please describe the payment offer, the date of the offer, and your re-sponse, if any.



Without waiving this objection, the Plaintiff answers as follows: The Defendant has not made and/or offered to make any payments to the Plaintiff.


If the tenant has ever offered Emergency Assistance from the Department of Transitional Assistance or assistance from any other third party to rent, please iden-tify the agency or third party assistance offered by the tenant or anyone on his/her behalf, the substance of the offer, the date on which it was made, and your response.






If the tenant receives a subsidy or lives in a subsidized unit, please state:

a. The name of the subsidy program and the administrating agency;

b. The full contract rent under the subsidy program;

c. The tenant’s portion of the rent; and

d. Any changes to the contract rent and/or the tenant’s portion during the last two years.




If you have requested an increase in the contract rent during the past twelve months. Please describe any such request in full and complete detail, including but not limited to:

a. To whom the request was made;

b. The amount requested;

c. The basis for such request;

d. The date and manner of the request;

e. The agency’s response, if any; and

f. The tenant’s response, if any.

ANSWER TO INTERROGATORY NUMBER 12



Please describe the steps you took to terminate the tenancy as required by the lease, or program rules, including but not limited to an offer of an informal confer-ence and/or grievance hearing. If the tenant requested a conference and/or hearing for each such conference and /or hearing, state the date, who was present, what each person said, and the results of the conference/hearing.






Please describe in full and complete detail how you came to know of each and every need for repair or other problem in the tenant’s apartment and/or common areas of the building at any point during the tenant’s tenancy. (This includes both alleged and confirmed problems, including, but not limited to each of the problems alleged in the tenant’s answer and counterclaims.) For each such problem or condition, please state:

a. The nature of the problem;

b. The date you first became aware of such problem;

c. How you first became aware of such problem- that is, who, if anyone, in-formed you and how (orally or in writing); and

d. What steps, if any, you took in response to being notified of such problems, including whether your investigation confirmed that there was a need for repair.



Without waiving this objection, the Plaintiff answers as follows: The Defendant inquired on or about October 29, 2002, if the heat in her unit was property function-ing. As a result of this inquiry, a member of the maintenance staff went to the De-fendant’s unit to confirm that the Defendant’s heat was functioning properly. The temperature in the Defendant’s unit was seventy-six (76º) degrees. See copy of doc-ument attached hereto and incorporated herein. The Plaintiff has not received any additional requests for repairs and/or any reports of violations in the unit from the Defendant or any other person and/or agency.


Please describe in detail any inspection of the department or building conducted by the Board of Health, Inspectional Services Department, Housing Authority or other agency, during the term of the tenant’s tenancy, including but not limited to:

a. The date of the inspection;

b. The identity of the agency conducting the inspection;



c. The identity of the person who contacted the agency to perform the inspec-tion and the date of the contact;

d. The date you received a report from the agency;

e. The substance of the report;

f. The date and substance of any communications with the inspector or other representatives of the agency; and

g. What, if anything, you did in response to the inspection.




If the landlord before, at the time of, or immediately following the purchase or acquisition of the apartment or building, obtained any inspections, assessments or evaluations of the apartment or building, obtained any inspection, assessments or evaluation of the apartment and/or building, for each such inspection, assessment or evaluation state:

a. The date;

b. The name and address of the person or agency who/ that perform it;

c. When you received or became aware of the inspection, assessment or evaluation;

d. The content thereof, stating specifically what problems or conditions were noted; and

e. What, if anything, you did in response to such inspection, assessment, or evaluation.


The Plaintiff objects to this Interrogatory on the grounds that it is vague and overly broad and on the grounds that it seeks information which is not relevant to the subject matter of the pending action and which is not reasonably calculated to lead to the discovery of admissible evidence.


If the landlord has made or attempted to make inspections and/or repairs (includ-ing exterminations) to the tenant’s apartment and/or common areas and systems of the building, for each inspection and/or repair (or attempt), including extermination, please state:



a. A description of each inspection and/or repair;

b. How and when you let the tenant know of your plan to inspect and/or repair (including whether there was a written notice to the tenant);

c. The date of each inspection and/or repair;

d. The names, address, and telephone number of the company/person who made each inspection and/or repair; and

e. The cost of each repair, if applicable.



Without waiving this objection, the Plaintiff answers as follows: See documents attached in response to Interrogatory Number 14 above and incorporated herein.


If you have ever learned of or tried to discover whether there is lead paint in the tenant’s apartment and/or building, please provide:

a. A full complete description of your investigation and/or knowledge/information regarding the presence (or absence) of lead paint in the apart-ment and/or building, including but not limited to:

i. The substance of any inspections, investigation or knowledge/information;

ii. The name, address, and telephone number of any person/company with information;

iii. The date(s) that you conducted such investigation or otherwise acquire such knowledge/information;

b. A full and complete description of any steps you have taken regarding the presence of lead paint in the apartment and/or building (i.e., any and all in-spections not identified above and/or abatement of any lead paint hazard), including but not limited to:

i. The substance of all action taken or work performed;

ii. The date(s) thereof;

iii. Who did what work (name, address, company, and license number of the deleader);



iv. The details of any arrangements for relocation of the tenant during the abatement process (including where the tenant was relocated, how the tenant was relocated, and the payment of any cost associated with such relocation).




If you claim that the tenant caused any damage to the apartment and/or building, please describe such damage in full and complete detail, including but not limited to:

a. The substance of such damage;

b. Why do you believe the tenant caused the damage;

c. What if any repairs were made to such damage, the date(s) of such repairs, and the costs of such repairs;

d. The name(s) and address(es) of anyone with knowledge of such damage al-legedly caused by the tenant.

ANSWER TO INTERROGATORY NUMBER19:


Without waiving this objection, the Plaintiff answers as follows: The Plaintiff has not made any such claims.


If you claim the tenant prevented or hindered you from inspecting the apartment and/or making repairs, for each attempt to inspect or make repairs, please describe:

a. The date of the attempt;

b. How and when you let the tenant know of your plan to inspect and/or to re-pair;

c. What the tenant did or said to prevent or hinder the inspection or repair;

d. The names and addresses of anyone present at the time who has information about the tenant’s interference with the inspection or repair; and

e. Any financial or other loss suffered as a result of the tenant’s actions or inactions.






If you or anyone on your behalf has been inside the tenant’s apartment during the tenancy (or before the tenancy for the purpose of renting to/preparing the apart-ment for the tenant), please state who was inside the apartment, when, and why s/he was there.




Please describe in full and complete detail the maintenance and management of the apartment and/or building, including but not limited to the identity (by name and address) of managed and/or maintained the building, and his or her job training/experience/qualifications.




If you ever received payment(s) for a security deposit and/or last month’s rent from or on behalf of the tenant, or know that the tenant made such payment(s) to a former owner, please state:

a. The amount of each payment and whether it was a security deposit or last month’s rent;

b. The date each payment was received;

c. Whether you gave the tenant a receipt and what information was on the receipt;

d. Whether you asked the tenant to sign a statement about the condition of the apartment;

e. The amount, account number (s), and the name (s) and address (es) of any bank (s) in which the security deposit and/or last month’s rent has been kept, and the date (s) of the initial deposit in a bank and of any transfer;

f. Whether the security deposit has at all time been kept in a separate escrow account protected from creditors;



g. Whether you have paid the tenant interest on the security deposit and/or last month’s rent or credited the interest to the tenant’s account and, if so, when and how much; and

h. A full and complete description of any notice(s) you provided to the tenant about the deposit (s) and/or payment (s) made to a former owner, including the date (s) of such notice (s).



Without waiving this objection, the Plaintiff answers as follows: The Defendant paid to the Plaintiff a security deposit in the amount of Seven Hundred ($700.00) Dollars, upon moving into the premises at 237 Pine Avenue, Apt #2D, Roxbury, Massachusetts. At that time, the Defendant was furnished with a receipt indicating the amount of the security deposit, the financial institution where it was being held as well as Statement of Conditions, see copy of documents attached hereto and incorpo-rated herein.


If there is a written agreement requiring the tenant to pay for water, heat and/or hot water, please describe the substance of the agreement, the date of the agreement, and the date the obligation to pay for water, heat, and/or hot water took effect.




If at any point during the tenancy the landlord has charged the tenant for the costs of water and/or sewer service, please describe in detail all steps taken by the landlord to comply with the provisions of G.L. c. 186, s. 22, including but not limited to the following:

a. By identifying who occupied the apartment since March 16, 2005 and de-scribing in detail the circumstances that led to the tenant(s) vacating the apartment;

b. By stating whether there is a submeter that measures the water usage in the tenant’s apartment alone and, if so, identifying the date on which such sub-meter was installed, and the name, address, and telephone number of the person who installed the submeter;



c. By stating whether water conservation devices were installed in the tenant’s apartment and, if so, identifying each device, the date on which each device was installed, and the name, address, and telephone number of the person who installed each device;

d. By stating what assurances were given to the tenant that water conservation devices were installed and functioning properly at the commencement of the tenancy;

e. By identifying the name, address, and telephone number of the person or company that reads the submeter for the tenant’s apartment;

f. By identifying the name, address, and telephone number of the person or company that prepares the water bill for the tenant and describing in detail the manner how the “calculated cost per unit” of water is determined;

g. By stating whether the landlord, during or prior to the tenant’s tenancy, has been notified by any person or agency that the primary water meter and/or the water submeters for the tenant’s apartment and/or the water conservation devices in the tenant’s apartment are not functioning properly and, if so, the date on which the landlord received such notification and the name, address, and telephone number of the person or agency who provided the notifica-tion, and describing in detail the substance of such notification and all steps taken in response to such notification;

h. By identifying the name, address, and phone number of any person, includ-ing the landlord, a plumber, and/or contractor, who did any repairs on the plumbing system for the property since the beginning of the tenancy.




If any of the tenant’s utilities (water, gas or electricity) have ever been shut off, discontinued or threaten to be shut off/discontinued (by you, a utility company, or anyone else), state which utility and when, the reason for the shutoff or notice/threat of shutoff, and when the utility was turned back on.




Please describe any accounts that the landlord has for common area utility usage in the building, including the date such account was established, the name of the utility



company, the account number of each such account, and a description of the areas in the building covered by each such account.




If the tenant is responsible for paying for any electricity or other utility outside the apartment, including but not limited to hallways, basement, and/or the exterior of the building, please describe what the tenant is responsible for, whether there is a written agreement between the parties reflecting this arrangement, and the date such arrangement first took effect.




Please list all property that you own or have owned at any point during the ten-ant’s tenancy in the apartment (including any property owned by trust or business entities with which you are associated) and for each such property:

a. Identify the address;

b. State the number of apartments in each such property; and

c. State the purchase date and dates of ownership.




If you are a trust, please describe the trust in detail, including but not limited to:

a. The name of the trust;

b. The names of the trustees, and any changes thereto (including all applicable dates);

c. The names of the beneficiaries of the trust, and any changes thereto (includ-ing all applicable dates).






Please describe any knowledge, information or belief you have of the tenant or a household member having any mental and/or physical disability, including but not limited to how you were made aware of such disability and what disability you be-lieve or were informed the tenant or household member has.



Without waiving this objection, the Plaintiff answers as follows: The Defendant has never requested a reasonable accommodation in connection with the allegations which are the substance of this complaint.


Please describe in detail any request made by or on behalf of the tenant or household member for an accommodation (e.g., a change in the rules or policy, a physical change to the apartment, not proceeding with an eviction, or other special treatment) due to her/his disability, including but not limited to:

a. When and how the tenant or other person asked you for an accommodation;

b. What s/he requested that you do or not do on account of her/his disability; and

c. Your response.




If you knew or believed that the tenant went to a tenant’s meeting or participated in a tenant’s organization, or filed or threatened to file a lawsuit or claim against you, describe such actions and state when and how you became aware of this.






If the tenant or any agency or person asked you to accept a subsidy for the ten-ancy (for example, Section 8) or to fill out any forms related to a subsidy for a hous-ing authority or other agency, please describe such request in detail, including but not limited to:

a. What you were asked to do;

b. When;

c. How (orally or in writing) the request was made; and

d. Your response.




For each conversation you have had with the tenant about the reason (s) for evic-tion or that concerns your claims and/or the tenant’s defenses or counterclaims in this action, please state when, who was present, and what was said.




Please state your opinion, if any, of the fair market monthly rental value of the apartment (i.e., for how much you could rent the apartment in good condition) for each year of the tenant’s tenancy/occupancy, and describe in detail the basis for your opinion.




If the building or the tenant’s apartment has been converted to the condominium or cooperative form of ownership, or if there is an intent to do so, please state:

a. When the conversation took or will take place; and

b. The substance and date (s) of information or notices, if any, provided the tenant by the landlord or any other person or entity regarding any rights the tenant may have under applicable condominium conversation eviction laws.





SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY THIS ____ DAY OF FEBRUARY, 2009.

John Smith, Property Manager

OBJECTIONS BY:

Catherine F. Downing, Esq. BBO # 85 Devonshire Street Suite 1000 Boston, MA 02109 (617) 720-3535 Attorney for the Plaintiff




SUFFOLK, ss TRIAL COURT OF MASSACHUSETTS HOUSING COURT DEPARTMENT CITY OF BOSTON DIVISION DOCKET NUMBER 06-SP-0294


) )

Plaintiff, ) PLAINTIFF’S RESPONSES TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS

v. ) ) TENANT, ) Defendant ) )

The Plaintiff, by its attorneys, hereby responds to the Defendant’s Request for Pro-duction of Documents as follows:

REQUEST FOR DOCUMENTS NUMBER 1:

Any documents related to the rental of the apartment and/or to the tenancy, in-cluding but not limited to rental applications, credit checks, references, lease(s) or other written agreement(s) between the landlord and the tenant, and lease addenda, changes, or renewals.

RESPONSE TO REQUEST NUMBER 1:

The Plaintiff objects to this Request on the grounds that it is overly broad and vague and that it seeks information which is not relevant to the subject matter of the pending action and which is not reasonably calculated to lead to the discovery of admissible evidence.

Without waiving this objection, the Plaintiff responds as follows: See copy of Defendant’s former Lease attached in connection with the Plaintiff’s Answers to In-terrogatory Number 4. Also, for documents pertaining to the Defendant’s occupancy other than those already produced and attached to the Plaintiff’s Answers to Interrog-atories, the Plaintiff agrees to produce, for inspection and copying, the file main-tained by the Plaintiff for the Defendant at the offices of Plaintiff’s counsel, Downing & Flynn, 85 Devonshire Street, Suite 1000, Boston, Massachusetts, Monday through Friday, 9:00 a.m. to 5:00 p.m., at a pre-arranged time at least two (2) business days prior to trial.


All documents related to the composition of the tenant’s household (i.e., the identity of all the people who occupy or who have lived at any time in the apartment).






All letters and other written communications between the landlord and the tenant.



Without waiving this objection, the Plaintiff responds as follows: See documents attached in connection with the Plaintiff’s Answers to Interrogatories and incorpo-rated herein. Also, for documents pertaining to the Defendants’ occupancy other than those already produced and attached to the Plaintiff’s Answers to Interrogatories, the Plaintiff agrees to produce, for inspection and copying, the file maintained by the Plaintiff for the Defendants at the offices of Plaintiff’s counsel, Downing & Flynn, 85 Devonshire Street, Suite 1000, Boston, Massachusetts, Monday through Friday, 9:00 a.m. to 5:00 p.m., at a pre-arranged time at least two (2) business days prior to trial.


All written records kept by the landlord concerning payments for rent/use and occupancy made by or on behalf of the tenant.




All written records kept by the landlord concerning payments for charges other than rent/use and occupancy made by or on behalf of the tenant.




All documents received from any predecessor(s) in interest (people or busi-ness(es)that owned the building before you did) related to the building, including but not limited to documents about:

a. The condition of the building;



b. Tenancies at the building;

c. Assignments of rights/obligations; and

d. A security deposit and/or last month’s rent for the tenant




All documents concerning the landlord’s purchase, refinancing, mortgage, sale, marketing, and/or insurance of the apartment/building, including but not limited to inspection reports and other assessments/evaluations, purchase and sale agreements (and other documents concerning conditions of purchase/sale), broker or other mar-keting agreements, and the like.




All Notices to Quit ever served by the landlord on the tenant or on an agency providing a subsidy for the tenant and returns of service for each such notice.


The Plaintiff objects to this Request on the grounds that it vague and overly broad and that it seeks information which is not relevant to the subject matter of the pending action and which is not reasonably calculated to lead to the discovery of admissible evidence.

Without waiving this objection, the Plaintiff responds as follows: For a copy of the Notice to Quit that is the subject of this action, see document attached in connec-tion with the Plaintiff’s Answers to Interrogatory Number 5 and incorporated herein. Also, for documents pertaining to the Defendant’s occupancy other than those al-ready produced and attached to the Plaintiff’s Answers to Interrogatories, the Plain-tiff agrees to produce, for inspection and copying, the file maintained by the Plaintiff for the Defendant at the offices of Plaintiff’s counsel, Downing & Flynn, 85 Devon-shire Street, Suite 1000, Boston, Massachusetts, Monday through Friday, 9:00 a.m. to 5:00 p.m., at a pre-arranged time at least two (2) business days prior to trial.


All documents related to any complaints received from any source about the ten-ant and/or members of the tenant’s household or guests.






All documents concerning charitable or third party payments on behalf of the ten-ant, including, but not limited to fuel/weatherization [sic], rent and/or other assistance.




All documents concerning the Department of Transitional Assistance (“DTA”), including but not limited to:

a. Emergency Assistance rental arrearage payments;

b. Vendor rental payments by the tenant through DTA; or

c. Other assistance concerning the tenant (e.g., Emergency Assistance applica-tions, agreements, invoices, checks, or other documents).




All documents related in any way to any of your reasons for evicting the tenant.


The Plaintiff objects to this Request on the grounds that it vague and overly broad and that it seeks information which is not relevant to the subject matter of the pending action and which is not reasonably calculated to lead to the discovery of admissible evidence.

Without waiving this objection, the Plaintiff responds as follows: See copy of Notice to Quit attached in response to Defendant’s Interrogatory Number 5 and doc-uments attached in connection with the Plaintiff’s Answers to Interrogatories and incorporated herein. Also, for documents pertaining to the Defendant’s occupancy other than those already produced and attached to the Plaintiff’s Answers to Interrog-atories, the Plaintiff agrees to produce, for inspection and copying, the file main-tained by the Plaintiff for the Defendant at the offices of Plaintiff’s counsel, Downing & Flynn, 85 Devonshire Street, Suite 1000, Boston, Massachusetts, Monday through Friday, 9:00 a.m. to 5:00 p.m., at a pre-arranged time at least two (2) business days prior to trial.




All documents related in any way to the landlord’s claims and/or to the tenant’s defenses or counterclaims (to the extent not addressed elsewhere in your responses to these document requests).



Without waiving this objection, the Plaintiff responds as follows: See documents attached in connection with the Plaintiff’s Answers to Interrogatories and incorpo-rated herein. Also, for documents pertaining to the Defendants’ occupancy other than those already produced and attached to the Plaintiff’s Answers to Interrogatories, the Plaintiff agrees to produce, for inspection and copying, the file maintained by the Plaintiff for the Defendants at the offices of Plaintiff’s counsel, Downing & Flynn, 85 Devonshire Street, Suite 1000, Boston, Massachusetts, Monday through Friday, 9:00 a.m. to 5:00 p.m., at a pre-arranged time at least two (2) business days prior to trial.


All written documents concerning the exact type or nature of any rental subsidy attached to the building or involved in the tenancy.




All documents related to requests that you accept a subsidy for the tenancy and your response, if any.




All documents concerning determination of the tenant’s rent, determination of the contract rent, and/or recertification of the tenant’s household.






All documents concerning any request you have made for an increase in the con-tract rent and responses to that request from the tenant and/or agency administering the tenant’s subsidy.




All documents related to any informal conference and/or grievance hearings dur-ing the tenancy.




All letters and other written communications between the landlord and any hous-ing authority, DHDC (formerly EOCD), MHFA, HUD, the Rental Housing Resource Center (formerly the Boston Rent Equity Board), and any other relevant agency re-garding the tenant or the apartment.




All documents concerning conditions or use restrictions for the apartment and/or building related to your (or your predecessor’s) receipt of any form of government assistance, including but not limited to low-interest loans, subsidies, tax-credits, deleading and/or rehabilitation assistance, and the like.




All documents notifying the tenant of inspections and/or repairs to the apartment or building.





Without waiving this objection, the Plaintiff responds as follows: See documents attached in connection with the Plaintiff’s Answers to Interrogatories and incorpo-rated herein. For documents pertaining to the Defendant’s occupancy other than those already produced and attached to the Plaintiff’s Answers to Interrogatories, the Plaintiff agrees to produce, for inspection and copying, the file maintained by the Plaintiff for the Defendant at the offices of Plaintiff’s counsel, Downing & Flynn, 85 Devonshire Street, Suite 1000, Boston, Massachusetts, Monday through Friday, 9:00 a.m. to 5:00 p.m., at a pre-arranged time at least two (2) business days prior to trial.


All photographs, videos, and/or digital images of the tenant’s apartment or of the building at any time during the tenancy, or within 2 weeks before the tenant moved in.



Without waiving this objection, the Plaintiff responds as follows: The Plaintiff is not in possession of any such photographs, videos, and/or digital images of the De-fendant’s apartment.


All documents related to investigation for or the presence of lead paint at any time in the tenant’s apartment and/or in the building, including but not limited to notices to any tenants in the building, notices from any agency about lead paint, and documents related to lead paint inspections, verifications of lead paint abatement and/or control of lead paint, and tenant relocation.




All documents concerning conditions in the tenant’s apartment and/or in the common areas or systems of the building, including complaints, inspection reports and requests for repairs by the tenant or any other person or agency.





Without waiving this objection, the Plaintiff responds as follows: See document attached in connection with the Plaintiff’s Answer to Interrogatory Number 14. Also, for documents pertaining to the Defendant’s occupancy other than those already pro-duced and attached to the Plaintiff’s Answers to Interrogatories, the Plaintiff agrees to produce, for inspection and copying, the file maintained by the Plaintiff for the Defendant at the offices of Plaintiff’s counsel, Downing & Flynn, 85 Devonshire Street, Suite 1000, Boston, Massachusetts, Monday through Friday, 9:00 a.m. to 5:00 p.m., at a pre-arranged time at least two (2) business days prior to trial.


All documents relating to repairs of the apartment and/or common areas or sys-tems of the building including but not limited to invoices, estimates, bills, work or-ders, receipts and records of payment.



Without waiving this objection, the Plaintiff responds as follows: See document attached in connection with the Plaintiff’s Answer to Interrogatory Number 14. Also, for documents pertaining to the Defendant’s occupancy other than those already pro-duced and attached to the Plaintiff’s Answers to Interrogatories, the Plaintiff agrees to produce, for inspection and copying, the file maintained by the Plaintiff for the Defendant at the offices of Plaintiff’s counsel, Downing & Flynn, 85 Devonshire Street, Suite 1000, Boston, Massachusetts, Monday through Friday, 9:00 a.m. to 5:00 p.m., at a pre-arranged time at least two (2) business days prior to trial.


All documents related to the basis of the landlord’s opinion regarding the fair market monthly rental value of the apartment.




All documents concerning the tenant’s security deposit and/or last month’s rent, including but not limited to receipts, copies of bank records or statements, notices given to the tenant about the deposit/payment, conditions statement, and documents relating to payment and/or crediting of interest to the tenant.





Without waiving this objection, the Plaintiff responds as follows: See copies of documents attached in connection with the Plaintiff’s Answer to Interrogatory Num-ber 23. Also, for documents pertaining to the Defendant’s occupancy other than those already produced and attached to the Plaintiff’s Answers to Interrogatories, the Plain-tiff agrees to produce, for inspection and copying, the file maintained by the Plaintiff for the Defendant at the offices of Plaintiff’s counsel, Downing & Flynn, 85 Devon-shire Street, Suite 1000, Boston, Massachusetts, Monday through Friday, 9:00 a.m. to 5:00 p.m., at a pre-arranged time at least two (2) business days prior to trial.


All documents concerning who is responsible for payment of water and sewer, heat, hot water and/or other utilities in the apartment.



Without waiving this objection, the Plaintiff responds as follows: See copy of Defendant’s Lease attached in connection with the Plaintiff’s Answers to Interroga-tory Number 4. Also, for documents pertaining to the Defendant’s occupancy other than those already produced and attached to the Plaintiff’s Answers to Interrogato-ries, the Plaintiff agrees to produce, for inspection and copying, the file maintained by the Plaintiff for the Defendant at the offices of Plaintiff’s counsel, Downing & Flynn, 85 Devonshire Street, Suite 1000, Boston, Massachusetts, Monday through Friday, 9:00 a.m. to 5:00 p.m., at a pre-arranged time at least two (2) business days prior to trial.


Any documents concerning the threatened or actual termination and/or re-connection of utilities (including water and sewer, electricity, and/or gas) in the apartment and/or building.






Any documents concerning accounts that the landlord has for common area wa-ter and other utility usage in the building.




Any documents concerning tenant responsibility for payment of any water, elec-tricity or other utility outside the apartment, including but not limited to hallways, basement, and/or exterior of the building.




All documents concerning the landlord’s compliance with G.L. c. 186, s.22, in-cluding, but not limited to the following:

a. All documents concerning the vacating of the tenant’s apartment by any tenant living in the unit since March 16, 2005, including any correspondences, notices to quit, summons and complaint, agreements, and/or judgments;

b. All documents concerning the installation of water submeters for the ten-ant’s apartment, including verification of submeters’ accuracy;

c. All documents concerning the installation of water conservation devices in the tenant’s apartment;

d. Any documents assuring the tenant that the water conservation devices were installed and functioning properly at the commencement of the tenancy;

e. All certificates filed by the landlord with the Board of Health, Inspectional Services Department, or other municipal agency or department charged with enforcement of the state sanitary code certifying that the tenant’s apartment is in compliance with G. L. c. 186 s. 22, and all other documents sent to or received from such agency concerning the landlord’s efforts to comply with that statute.




All relevant information about water charges for the tenant’s apartment, including:



a. All bills since the beginning of the tenancy sent to the landlord by the water company for the primary meter for the entire property;

b. All submeter readings and water bills from the landlord, submeter company, and/or other third party concerning the water usage and cost of water for the tenant’s apartment since the beginning of the tenancy;

c. All documents concerning calculations used to determine the per unit cost of water for the tenant’s water bill since the beginning of the tenancy;

d. All communications between the landlord and any water supplier, water supplier, water submeter reading and/or billing company, or any other third party concerning any water bill and/or submeter reading sent to the tenant;

e. All bills for water and sewer usage sent by the landlord to any occupant of the tenant’s apartment since March 16, 2005; and

f. Any notifications received by the landlord, during or prior to the tenant’s tenancy, that the water meter and/or the water submeter and/or the water conservation devices in the building or in the tenant’s apartment are not functioning properly, and any documents relating to steps taken by the land-lord in response to such notifications.

g. All bills and/or invoices related to any work done on any part of the plumbing system that affect the tenant’s apartment since the beginning of the tenancy.




Any documents concerning the tenant’s or household member’s disability and/or request for accommodation (i.e., a change in rules or policy, a physical change in the apartment and/or common areas, etc.) that the tenant or anyone on his/her behalf has made to you and your response to such request, and any offers of reasonable accom-modation that you otherwise have made to the tenant of household member.




Any documents concerning actual or proposed condominium or cooperative conversion of the apartment or building.






Any documents concerning fire, property and/or liability insurance of the apart-ment building, including but not limited to policies, binders, contracts, agreements, vouchers, checks, notices, correspondence, and notices to your insurer of claims con-cerning the apartment and/or building.


OMITTED BY THE DEFENDANT


Any documents concerning the management of the apartment and/or building.




Any documents concerning the maintenance of the apartment and/or building.




Any documents concerning lawsuits or claims related to the apartment and/or building and/or involving the landlord and the tenant.


OMITTED BY THE DEFENDANT


Any documents not already produced regarding the tenant, his/her apartment, or his/her tenancy.



Without waiving this objection, the Plaintiff responds as follows: See documents attached in connection with the Plaintiff’s Answers to Interrogatories and incorporated



herein. Also, for documents pertaining to the Defendant’s occupancy other than those already produced and attached to the Plaintiff’s Answers to Interrogatories, the Plain-tiff agrees to produce, for inspection and copying, the file maintained by the Plaintiff for the Defendant at the offices of Plaintiff’s counsel, Downing & Flynn, 85 Devon-shire Street, Suite 1000, Boston, Massachusetts, Monday through Friday, 9:00 a.m. to 5:00 p.m., at a pre-arranged time at least two (2) business days prior to trial.

RESPECTFULLY SUBMITTED, PLAINTIFF, by its Attorney DOWNING & FLYNN,

DATE: February , 2009 Catherine F. Downing, Esq. BBO # 85 Devonshire Street Suite 1000 Boston, MA 02109 (617) 720-3535

CERTIFICATE OF SERVICE

I, Catherine F. Downing, Esq., hereby certify that on this _____ day of February, 2009, I did serve the within Plaintiff’s Response to Defendant’s Request for Produc-tion of Documents upon the Defendant by causing a copy to be mailed, first class, to her at 237 Pine Avenue, #2D, Roxbury, MA 02119.

Catherine F. Downing, Esq.




SUFFOLK, ss TRIAL COURT OF MASSACHUSETTS HOUSING COURT DEPARTMENT CITY OF BOSTON DIVISION DOCKET NUMBER -SP-


) )

Plaintiff, ) ) PLAINTIFF’S RESPONSE TO

DEFENDANT’S REQUEST FOR ADMISSIONS

v. ) ) ) TENANT, ) Defendant ) )

The Plaintiff hereby responds to Defendant’s Request for Admissions as follows:

REQUEST FOR ADMISSION NO. 1:

The following conditions exist in or at 100 Jones Street, Apartment 2, Dorches-ter, Massachusetts (the “Premises”) (admit or deny each):

a. Bathroom ceiling leaks;

b. Tiles are missing from bathroom wall(s);

c. Drain pipe extending down from bathroom ceiling leaks;

d. Hole in bathroom wall (behind bathroom door):

e. Paint on window sill of bathroom window is chipped and/or peeling;

f. Faucet in bathroom sink drips continuously;

g. Ceiling in hallway near bathroom leaks into hallway light fixture;

h. Cockroach infestation;

RESPONSE TO REQUEST NO. 1:

a. Bathroom ceiling leaks: Denied

b. Tiles are missing from bathroom wall(s): Denied.

c. Drain pipe extending down from bathroom ceiling leaks: Denied



d. Hole in bathroom wall (behind bathroom door): Denied.

e. Paint on window sill of bathroom window is chipped and/or peeling: Denied.

f. Faucet in bathroom sink drips continuously: Denied.

g. Ceiling in hallway near bathroom leaks into hallway light fixture: Denied.

h. Cockroach infestation: Denied.


The following conditions have existed in or at the Premises during the sixty (60) days preceding the date of these Requests for Admissions (admit or deny each):








h. Cockroach infestation.













The Landlord was notified by the Tenant that the following conditions have ex-isted at the Premises during the period of the Tenant’s tenancy (admit or deny each):



















None of the following conditions was caused by the Tenant or person(s) acting under the Tenant’s control (admit or deny each):





















The Landlord knew of the following conditions prior to serving a Notice to Quit upon the Tenant (admit or deny each):





















The Landlord knew of the following conditions prior to serving its Summary Process Summons and Complaint in the above-captioned matter (admit or deny each):





















The conditions listed in Request for Admissions No. 5 can be remedied without the Premises being vacated (admit or deny each condition).










It is impossible to answer this admission given that the conditions never existed, and therefore they are denied.










The Landlord received a copy of the Inspection Report issued by the City of Boston Inspectional Services Department dated October 8, 2009 (hereinafter the “Inspection Report”) regarding the Premises, a copy of which is annexed hereto as Exhibit A.




Denied.


The Inspection Report referred to in Request for Admission No. 8 is an accurate description of the conditions present in or on the Premises upon the date of the In-spectional Services Department’s inspection of the Premises.


The Plaintiff objects to this Request on the grounds that the document speaks for itself. Without waiving this objection, the Plaintiff responds as follows: The Plaintiff is unable to admit or deny this Request for Admission as it did not receive such report.


Prior to October 6, 1996, the Tenant complained to the Landlord and/or the Landlord’s officers, employees, servants, agents or other representatives about the conditions listed in the Inspection Report.


Denied.

SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY THIS _____ DAY OF OCTOBER, 2009.

Ms. Manager OBJECTIONS BY:

Catherine F. Downing, Esq. Downing & Flynn Attorney for the Plaintiff




SUFFOLK, ss TRIAL COURT OF MASSACHUSETTS HOUSING COURT DEPARTMENT CITY OF BOSTON DIVISION DOCKET NUMBER 06-SP-


) )

managing agents for LANDLORD ) Plaintiff, ) ) PLAINTIFF’S MEMORANDUM IN

OPPOSITION TO DEFENDANT’S MOTION TO COMPEL

v. ) ) ) TENANT, ) Defendant ) )

STATEMENT OF FACTS

In this matter, the Defendant was served a Fourteen (14) Day Notice to Quit on May 17, 2009, terminating her tenancy for non-payment of rent. On July 3, 2009, the Defendant was served with a Summary Process Summons and Complaint by consta-ble. The case was originally scheduled to be heard on July 20, 2009, with the Answer being due on or before July 17, 2009.

The Defendant, pro se, filed a Summary Process Answer and Counterclaims, as well as Interrogatories and Requests for Production of Documents. The filing of these documents postponed the case for two weeks, until August 3, 2009. The Plain-tiff timely responded to the Defendant’s Interrogatories and Requests for Production of Documents on July 26, 2009, by overnight mailing a copy to the Defendant. In this response, the Plaintiff properly interjected objections to some of the Interrogato-ries and Document Requests and in response to others, the Plaintiff attached copies of all documents which pertained to the information requested. On August 1, 2009, less than three (3) days prior to trial, the Defendant, now represented by counsel, hand delivered a Motion to Compel Further Responses to Discovery on the Plaintiff’s Attorney.

ARGUMENT

1. The Defendant’s Motion Should Be Denied because the Plaintiff Has Fully Responded to the Requests for Discovery Or Has Properly asserted Objections.



Under Rule 26(b)(1) of the Massachusetts Rules of Civil Procedure, the parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter of the pending action and which are reasonably calculated to lead to the discovery of admissible evidence. Here in particular, the Defendant seeks to compel the following information:

INTERROGATORY NO. 15:

At any time since the tenant moved in, did she tell you about any repair problems or State Sanitary Code violations in her home? If so, please state what problems the tenant told you about and when.

ANSWER TO INTERROGATORY NO. 15:


Without waiving this objection, the Plaintiff responds as follows: See copies of work orders attached hereto and incorporated herein.

Argument

The Defendant, in her Motion, argues that the Interrogatory seeks information related to conditions in the home. In the Plaintiff’s Answer to this Interrogatory, the Plaintiff has more than fully complied with this request by providing copies of work orders which were generated in response to all reports of the need for repairs to the premises that were necessary during the Defendant’s tenancy with the Plaintiff, whether the requests for repairs were generated through conversations with the De-fendant or through inspections of the premises conducted by the Plaintiff. As such, the Plaintiff’s response has exceeded the requirement of the Interrogatory, as it has addressed all requests for repairs for the premises, whether the requests were made by the Defendant or through the Plaintiff’s own inspections. As the Court is aware, Rule 33(c) of the Massachusetts Rules of Civil Procedure allows a party, in response to a request for discovery, to identify a document maintained as a business record which contains the information requested, where it would be the same burden to the Plaintiff as it would be to the Defendant to ascertain the information requested from those records. Here, the Plaintiff has gone further: it has actually provided copies of those documents for the Defendant’s review. In fact, the work orders and the inspec-tion reports are the contemporaneous reports of any conversations that persons from the Plaintiff might have had with the Defendant in connection with the need for re-pairs in her unit.

Also, it should be noted that the Defendant was provided an opportunity to in-spect and copy the file maintained by the Plaintiff for the Defendant, just in case there is some other information or documentation that she thinks would be necessary to prepare her defense and counterclaim in this action, but has not taken advantage of



this opportunity. Where the Plaintiff has provided ample documentation and infor-mation in response to the Defendant’s request, nothing else should be required.


At any time since the tenant moved in, were you aware, other than from the tenant’s complaints, that there were problems or State Sanitary Code violations in the tenant’s home? If so, describe the problems, and state when and how you knew about them.



Without waiving this objection, the Plaintiff responds as follows: See copies of work orders attached hereto and incorporated herein.

Argument

Again, the Plaintiff has fully responded to this Interrogatory by providing copies of work orders which relate to requests for repairs to be completed in the premises. Were the Defendant’s counsel to review these documents, they would learn that these documents describe which repairs were requested and when the Plaintiff became aware of such requests for repairs. As noted above, Rule 33(c) of the Massachusetts Rules of Civil Procedure allows a party, in response to a request for discovery, to identify a document maintained as a business record which contains the information requested, where it would be the same burden to the Plaintiff as it would be to the Defendant to ascertain the information requested from those records. Here, the Plain-tiff has gone further: it has actually provided copies of those documents for the De-fendant’s review. Nothing more should be required.


If you or anyone on your behalf has been inside the tenant’s apartment dur-ing the tenancy (or before the tenancy for the purpose of renting to/preparing the apartment for the tenant) please state who was inside the apartment when and why s/he was there.



Without waiving this objection, the Plaintiff responds as follows: See copies of work orders attached in response to Interrogatory Number 15 as well as cop-ies of documents attached hereto and incorporated herein.



Argument

Here, the Defendant again argues that the Plaintiff’s answer is unresponsive. Once more, a review of the documents attached as the Plaintiff’s response to this Interrogatory clearly show that the Plaintiff has fully responded to this Interrogatory. The attached and referenced documents, which include both the work orders and all inspection reports, give a complete record of all of the Plaintiff’s entry into the prem-ises to conduct both inspections and repairs. Simply put, there are no other times that the Plaintiff’s employees have been inside the Defendant’s unit other than those noted on these inspection reports or work orders. Once again, Rule 33(c) of the Massachu-setts Rules of Civil Procedure allows a party, in response to a request for discovery, to identify a document maintained as a business record which contains the infor-mation requested, where it would be the same burden to the Plaintiff as it would be to the Defendant to ascertain the information requested from those records. Here, the Plaintiff has gone further: it has actually provided copies of those documents for the Defendant’s review. Nothing more should be required.

Additionally, the Defendant argues that she suspects that the Plaintiff or agents of the Plaintiff entered the premises without permission. As the Plaintiff and/or its agents have made no such entries, the documents provided do not provide proof of the Defendant’s suspicions. The answer that the Plaintiff gave was full and truthful. Just because the Defendant would like to believe differently, is not a sufficient basis to require that any further response be given.


DATE: Catherine F. Downing, Esq. BBO # 85 Devonshire Street Suite 1000 Boston, MA 02109 (617) 720-3535



EXHIBIT 4T—Plaintiff’s Sample Motion for Payment of Use and Occupancy and Supporting Affidavit


SUFFOLK, ss TRIAL COURT OF MASSACHUSETTS HOUSING COURT DEPARTMENT CITY OF BOSTON DIVISION DOCKET NO. 13H84-SP-

) LANDLORD, ) PLAINTIFF’S MOTION TO

REQUIRE DEFENDANT TO PAY OUTSTANDING AND ONGOING USE AND OCCUPANCY INTO COURT PENDING TRIAL

Plaintiff ) ) v. ) ) TENANT, ) Defendant ) )

The Plaintiff, by its Attorney, hereby moves that this Court require the Defendant to pay on-going monthly use and occupancy payments to the Court each month until the trial in the above-referenced matter and/or requiring the Defendant to post the balance owed with the Court, pending the trial in this matter. As reasons therefor, the Plaintiff states as follows:

1. This action was commenced against the Defendants, based upon their failure to pay rent for the premises, as agreed in the Lease, with an original trial date of November 18, 2013.

2. On or about November 8, 2013, the Defendant filed an Answer in this action, claiming a Trial by Jury. Such a demand will automatically result in further de-lay of a final adjudication in this matter. See G.L. c. 218, § 19B; Unif. R. Sum. P. 8; Housing Court Standing Order 1-04.

3. The matter has yet to be scheduled for trial.

4. The Defendant’s current monthly use and occupancy, based upon the agreed upon monthly rent under the Defendants’ Lease, is One Thousand ($1,000.00) Dollars. Under the terms of that Lease, the Defendants are responsible to pay those amounts on or before the first day of the month.

5. The Defendant currently owes the Plaintiff Six Thousand ($6,000.00) Dollars in unpaid rent and use and occupancy through November 2013. In fact, the De-fendants have not paid the Plaintiff any monies since July, 2013.



6. In his Answer, the Defendant alleges that there are defective conditions in the premises, however, he did not notify the Plaintiff of any alleged defects in the premises before he fell in arrears nor has he requested any repairs to the premises since January 2010. The repair which was requested at that time was completed. Since that time, the Plaintiff has not received any notice from the Defendants, Inspectional Services or any other agency with regard to any alleged conditions of disrepair.

7. The Plaintiff will be further unjustly prejudiced if the Defendant continues to refuse to pay his monthly use and occupancy of One Thousand ($1,000.00) Dol-lars a month while the parties are awaiting the trial in this matter, as the Defend-ant has no basis for refusing to pay his ongoing monthly use and occupancy.

WHEREFORE, for the reasons stated herein, the Plaintiff respectfully requests that this Honorable Court:

1. Order the Defendant to deposit his outstanding use and occupancy of Six Thou-sand ($6,000.00) Dollars into the Court and;

2. Order the Defendant to deliver his ongoing monthly use and occupancy into the Court in the amount of One Thousand ($1,000.00) Dollars a month as due to the Plaintiff on or before the first day of each month pending the trial in this matter.


DATE: November 29, 2013 Catherine F. Downing, Esq. BBO # [email protected] 85 Devonshire Street Suite 1000 Boston, MA 02109 (617) 720-3535




SUFFOLK, ss TRIAL COURT OF MASSACHUSETTS HOUSING COURT DEPARTMENT CITY OF BOSTON DIVISION DOCKET NO. 13H84-SP-0

) LANDLORD, ) AFFIDAVIT OF LANDLORD IN

SUPPORT OF PLAINTIFF’S MOTION TO REQUIRE DEFENDANT TO PAY OUTSTANDING AND ONGOING USE AND OCCUPANCY INTO COURT PENDING TRIAL

Plaintiff ) ) v. ) ) TENANT, ) Defendant ) )

I, Landlord, do hereby depose and say as follows:

1. I own the premises located at 111 Anthony Street #9, Boston, Massachusetts (hereinafter “the premises”) and I keep the books and records with regard to res-idents who reside at the premises. I have reviewed those records before signing this Affidavit.

2. The Defendant resides in the premises, having signed a lease for the premises on February 1, 2013, and agreed to pay rent at a monthly rate of One Thousand ($1,000.00) Dollars, which is due on the first day of each month.

3. The Defendant currently owes Six Thousand Dollars in unpaid rent, having not paid rent for the months of June, July, August, September, October and Novem-ber, 2013. See copy of payment history attached hereto and incorporated herein.

4. I have not received any notice from the Defendant regarding any condition of disrepair that the Cooperative is responsible for under the terms of the Proprie-tary Lease.

5. We have not received any notice from the Defendant, Inspectional Services or any other agency with regard to alleged conditions involving any condition of disrepair with regard to the Defendant’s apartment.

Signed under the pains and penalties of perjury on the _____ day of November, 2013.

Landlord



EXHIBIT 4U—Checklist for Notice Required from Storage Facility Holding Evicted Tenant’s Possessions

Within seven days of the tenant’s property being placed in storage, the storage com-pany must mail (by registered or certified mail) or hand deliver to the tenant a written statement providing required information on the terms of the storage.

q Generally speaking, this notice must

q list its storage rates,

q advise the tenant that the property may be sold after six months,

q advise the tenant to notify it in writing of any change in mailing address,

q describe the procedure for recovering the property (including the tenant’s right to inspect the property and to retrieve items of primarily personal or sentimental value once without fee), and

q inform the tenant that the storage company has a warehouser’s lien on the property.

q The notice must include contact information for the Department of Public Safety (in case the tenant wants to verify that the rates are approved).

q An extra copy of this statement must be kept at the warehouse.

G.L. c. 239, § 4(d); see also G.L. c. 239, § 4(f) (tenant’s rights to inspect, remove, reclaim, or purchase stored items).

See the text of this chapter for additional information on notice required forty-eight hours before levy on the execution and other issues relating to eviction and postevic-tion procedures.

Residential Landlord-Tenant Practice: Creating and ...and Occupancy and Supporting Affidavit ......

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