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Important Legal Defenses and Counterclaims

Produced by Maureen E. McDonagh and Julia E. Devanthéry
Last Updated May 2017

In an eviction case, defenses are the legal reasons why you should not be evicted. If you have a defense, you may be able to prevent your eviction. Counterclaims are your legal claims for money. Counterclaims are important because you can use them to reduce the amount of rent you owe your landlord and sometimes win your eviction case. If the amount you win through your counterclaim is more than the amount you owe, then you will not be evicted in a non-payment or no-fault eviction case. In some cases, if you win a counterclaim and you can pay the difference between what your landlord owes you and what you owe to your landlord, you can also win your eviction case. There are separate rules that apply to eviction cases following foreclosures. If your landlord owns the property as the result of a foreclosure, see Chapter 18: Tenants and Foreclosure. There is also a special Discovery form for Tenants in Foreclosed Properties (Booklet 4A).

Below is a list of the most common defenses and counterclaims tenants use to win eviction cases. Additional defenses are listed in the Answer form (Booklet 3).

1. Defenses that May
Prevent Eviction

a. Your Landlord Did Not Terminate Your Tenancy Properly

Your landlord must prove that she properly terminated your tenancy.112 You have a defense to the eviction if:

  • You received an invalid notice to quit.
    (For example, the notice does not
    give you the right amount of time.)
  • Your landlord, after sending you a notice
    to quit, accepted rent without notifying you right away that it is "for use and occupancy only."
  • You received a 14-day notice to quit for non-payment of rent at a time when you were not behind on your rent.
  • You received a 14-day notice to quit for non-payment of rent for refusing to pay the amount of a rent increase (that you did not agree to pay).113
  • You paid or offered to pay the landlord the rent you owed within the time allowed by law.

If any one of these situations applies to you, you should ask a judge to dismiss your case. For more information, see the section in this chapter on Motion to Dismiss. Make sure you bring all important documents to court to prove your claims, such as the invalid notice to quit and rent receipts or canceled checks to prove you paid your rent. If you are successful in having the case dismissed, the landlord must send you a new notice to quit if she still wants you out.

b. Your Landlord Has Not
Properly Brought the Case

Your landlord must show that she has properly filed the eviction case in court. If any of the following is true, you have a defense to the eviction.

  • Your landlord did not properly serve you a summons and complaint.
  • Your landlord began the court case before the time period on your notice to quit expired.
  • The complaint does not state the reasons for eviction.114

c. Bad Housing Conditions

When your landlord knows about conditions that violate the state Sanitary Code prior to you falling behind on your rent and allows these conditions to remain uncorrected, you may have a defense that can prevent your eviction in a non-payment or no-fault eviction case.115 This defense can be used by:

  • All "occupants" of residential property, except people who have been living in a hotel, motel, or lodging or rooming house for less than 3 consecutive months;116
  • Tenants who are being evicted for
    non-payment of rent; or
  • Tenants who are being evicted for a reason that is not the tenant's fault, often referred to as a no-fault eviction. A no-fault eviction would be, for example, if you refuse to pay a rent increase or if your landlord wants the apartment for a family member.

If you are being evicted for a reason that the landlord claims is your fault, such as disturbing other tenants or destroying property, you may not be able to use bad conditions as a defense to prevent an eviction. In this situation, if your landlord wants to prevent you from raising bad conditions as a defense, she must send you a notice to quit that specifies the reasons for the eviction.117

If your defense is based on bad conditions, a judge must be convinced of the following things:

  • Bad conditions existed.
  • Your landlord knew about the bad conditions before you were behind in your rent.
  • Neither you nor anyone else under your control caused the bad conditions.
  • You do not live in a hotel or a motel or hotel or you have lived in a rooming house for more than 3 months.
  • The conditions can be repaired without your moving out.118

Bad Conditions Existed

The best way to prove that the bad conditions exist or existed and that the landlord has violated the state Sanitary Code is with a certified inspection report from the Board of Health.119

A certified inspection report is one signed under the pains and penalties of perjury.120 If you have photographs or videotapes of the conditions, show them to the judge. Dead mice and roaches can be sealed in jars to be presented as exhibits. It is also important for you to testify about the harm that these conditions caused you and your family. Make a diagram of your apartment and use it to show the judge where bad conditions existed and indicate how long these problems have gone on. Keep in mind that the judge has not seen or lived in your apartment and does not know how bad things are or how they affected you.

Your Landlord Knew
About the Bad Conditions

If you are raising bad conditions as a defense, you will need to prove to the court that your landlord or her employee knew about the bad conditions. If you are being evicted for non-payment, you will need to prove that your landlord knew about the bad conditions before you fell behind or began to withhold your rent. Your best proof will be a copy of any written letters you sent to the landlord telling her about the bad conditions or a report from the Board of Health dated before you stopped paying rent. You can also try through the process of discovery to get your landlord to admit she knew about the bad conditions. You can testify about conversations with your landlord in which you discussed the violations; and witnesses who overheard these conversations can testify that your landlord had notice of the bad conditions. If the bad conditions existed at the time
you moved into your apartment, the law presumes that your landlord knew about them, even if the landlord did not actually know of these conditions.121 For more information see Chapter 8: Getting Repairs Made - Establishing That Your Landlord Had Knowledge of Illegal Conditions.

Neither You nor Anyone Else Under Your Control Caused the Bad Conditions

Your landlord must prove that you or someone in your household caused the defective conditions. If your landlord took a security deposit when you moved in, you should have a statement of conditions. If the defective condition is listed on this statement, that will be proof that you did not cause it.

You do not live in a hotel or a motel or you have lived in a rooming house for more than 3 months.

If you live in a hotel or motel or you have lived in a rooming house for less than 3 months, you cannot use the fact that there are bad conditions to prevent an eviction.

The Conditions Can Be Repaired without Your Moving Out

If the landlord claims the conditions cannot be repaired without your moving out, you can argue that you should be able to move back in after the repairs are made.

Paying What You Owe

If a judge is persuaded that all of these conditions have been met, she will then determine what the fair rental value of the apartment is in its defective condition.
A judge may then order you to pay some
or all of the rent you have withheld. If you do owe money and you pay within 7 days the amount the judge says you owe, you cannot be evicted. If you proved your claim of bad conditions and don't owe the landlord any money, you cannot be evicted and you may be entitled to money damages from your landlord. Of course, if you do owe money and don’t pay it within 7 days, you can be evicted.

d. Rent Withholding

If you have been withholding rent because of serious Sanitary Code violations in your apartment, you can wait to cure the non-payment until after a judge holds an eviction trial, evaluates the conditions, and determines how much of the rent you actually owe the landlord. Within 7 days of being notified of the court's ruling, you must pay the court the entire amount a judge says you owe in order to cure the non-payment and keep your apartment.122 For more information about rent withholding, see Chapter 8: Getting Repairs Made.

e. Retaliation

If your landlord tries to evict you in retaliation for your engaging in certain activities protected by law, you have a defense to an eviction. These protected activities are listed in the section in this chapter called Retaliatory Evictions. If a landlord sends you a notice to quit or tries to evict you by going to court within 6 months after you did any of the activities protected by the law, a judge must "presume" that your landlord is retaliating. If you raise retaliation as a defense in an eviction, your landlord must prove "by clear and convincing evidence" that the eviction is based on a reason other than your engaging in legally protected activities and that she would have brought the eviction in the same manner and at the same time if you hadn't engaged in those activities.123

f. Discrimination

If you have been discriminated against, violation of the discrimination laws is a defense to an eviction, even if you are being evicted for a reason that the landlord says is your fault.124 See Chapter 7: Discrimination for a detailed description about illegal discrimination.

A major principle of discrimination law that can be used to prevent an eviction is the requirement that landlords make reasonable accommodations for tenants with physical and mental disabilities.125

A reasonable accommodation is open to creative interpretation, but is an accommodation that would allow a person to remain in her home despite her disability. Failure to reasonably accommodate a tenant with a disability constitutes discrimination, and may be raised as a defense to the eviction, as well as a counterclaim.126 For example, you may be able to use the theory of reasonable accommodation to prevent a landlord from evicting a tenant with a mental disability who was causing minor damage to her apartment because she hears voices.127 You also may be able to prevent the eviction of a disabled tenant by allowing that person to keep a service or therapy animal even though pets are prohibited under the lease.128

If you are being evicted for non-payment of rent, you would have a defense to the eviction if your landlord refused to accept an agency voucher sufficient to cover the full amount owed so long as it was offered to her within the time provided by law for "revival" of your tenancy.129 Similarly, it is illegal discrimination for a landlord to refuse to accept any federal or state rent subsidy and then evict you for non-payment of rent.130

If you suspect that your landlord is discriminating against you, read Chapter 7: Discrimination for information about what other steps, in addition to raising discrimination as a defense to an eviction, you can take to protect yourself.

g. Your Landlord Says
You Broke the Lease

If you are being evicted because the landlord said that you violated your lease, you may have a defense to an eviction if you can show any of the following:

  • You did not break a condition of your lease. Your landlord has the burden of proving that you did.
  • The lease clause that your landlord says you violated is or should not be legal in Massachusetts. Some lease provisions are automatically illegal and cannot be enforced.131 You may argue that others should not be enforced.132 (See Chapter 1: Before Moving In).
  • Your landlord gave up (waived) her right to object to your breach because she consented to it133 and did not expressly reserve the right to proceed with the eviction.134 It is best to get this consent in writing, because verbal consent is hard to prove and sometimes not admissible in court.135
  • Your landlord gave up (waived) her right to object to your breach because she accepted the rent after sending you a notice to quit without reserving her rights (which means she accepted your rent without notifying you that the money was "for use and occupancy only").136

Note: The acceptance of rent by the landlord does not always act as a
permanent waiver.137

  • The violations occurred prior to the renewal or during the term of the previous lease.138
  • A new owner is trying to evict you for a breach that occurred before she acquired the property.139
  • Even though you may have technically violated a term of your lease, your violation was accidental, a mistake, or a very minor violation; you have corrected the violation; and the landlord was not substantially harmed or your violation was related to a disability for which you have requested a reasonable accommodation.140
  • h. Sale of the Premises

    If your landlord sells the building you live in while the eviction action is pending141 or even after a judge has ordered an eviction, you have a defense against the new owner if she proceeds with the eviction,142 unless the old landlord assigned her rights to the new landlord prior to or at the time of the sale.143 Use the discovery process to ask the new owner for any assignment agreement.

    i. Landlord's Violation of Law

    Massachusetts law provides a defense to a
    non-payment or no-fault eviction where the landlord has breached any material term of the rental agreement or violated any other law related to the tenancy.144 If you can prove that the landlord has broken any rental agreement (either a term of the lease or the terms of a tenancy-at-will agreement) or broken any other law related to the tenancy, such as the security deposit law or the law protecting your right to “quiet enjoyment" of the apartment,145 the court should not allow the landlord to evict you.

    j. Fairness

    Courts can determine that even if an eviction is technically allowed, the eviction is unfair based on principles of equity and fairness (this is called the “doctrine of prevention of forfeiture”).146 Sometimes a court will try to seek an alternative to eviction which preserves the tenancy, but also takes into account the impact on the landlord. A court might be more likely to do this if the reason for eviction is not minor or where the harm to the landlord can be addressed.

    2. Counterclaims that May Prevent Eviction

    You can sue your landlord for money as part of your eviction case if your claims are related to your tenancy.147 These claims are called counterclaims if you raise them during an eviction case. They are claims for money. Here are some common counterclaims that tenants can bring against landlords in eviction cases:

    • Breach of the Warranty of Habitability.148 Under Massachusetts law, all landlords owe tenants what is called a warranty of habitability. If your landlord does not keep your apartment in good condition, she has "breached" her warranty of habitability. You may have a claim that the value of your apartment has decreased and that it is not worth all of the rent that your landlord is charging you or that you have paid in the past.149
    • Interference with the Covenant of Quiet Enjoyment: In Massachusetts, if your landlord interferes with your use and enjoyment of your apartment or your utilities, you may sue her for money damages in the following situations:
    • If your landlord is required to provide utilities or other services and she intentionally fails to provide them,
    • If your landlord is required to provide utilities or other services and she directly or indirectly interferes with the furnishing of them,
    • If your landlord transfers the responsibility for payment for the utility to you without your consent,
    • If your landlord requires you to pay utilities that go to common areas or areas you do not occupy.150
    • If your landlord comes into your home without notice or attempts to move you out without first taking you to court,151 or
    • If the landlord in any way intentionally interferes with your "quiet enjoyment" of your apartment.152
    • Violation of the Security Deposit Law: If a landlord takes a security deposit, the law says that she has certain obligations. These obligations include providing you with a written receipt, giving you a statement that describes the condition of your apartment, holding your money in a bank account that is separate from the landlord's money, paying you interest every year, keeping records of deposits and repairs, and returning your security deposit to you within 30 days of the end of your tenancy.153 Failure to comply with this statute may be a defense to eviction in summary process.154
    • Violation of the Consumer Protection Law: The Massachusetts legislature has recognized that tenants are consumers of one of the most significant consumer products—housing.155 Under the state Consumer Protection Act, it is illegal for a landlord to threaten, attempt, or actually use any unfair or deceptive acts against you or anyone in your house.156
    • Retaliation: You may be entitled to damages under the retaliation counterclaim statute if you prove that your landlord threatened to take legal action against you for enforcing your rights. For more see the section in this chapter called Retaliatory Evictions.
    • Discrimination: You may be entitled to damages under the laws that prohibit discrimination if you can show that your landlord engaged in discrimination against you.157
    • If you have a claim against your landlord and you do not bring it as a counterclaim in an eviction case, you still have the right to file a separate lawsuit on that claim.158 For a list of counterclaims, see The Answer form (Booklet 3).

      When you bring counterclaims in an eviction case, the judge will decide whether you have proved your claim and will decide how much money to award you based on each of your counterclaims. You should read Chapter 13: When to Take Your Landlord to Court - Grounds for Filing a Civil Lawsuit to see what you need to prove in court and how much money you can be awarded. The court's rulings on your counterclaims may determine whether or not you can be evicted.

      a. If You Are Being Evicted for
      Non-Payment of Rent

      Counterclaims may reduce or eliminate the amount of rent you owe. If you are being evicted for non-payment of rent, the judge will compare the amount she awards you on your counterclaims to the amount she awards your landlord for rent. If you are awarded more money than your landlord, you win the eviction case and get to stay in your apartment.

      If the amount you win on your counterclaim is less than what the judge says you owe the landlord, you have 7 days after receiving notice from the court to pay the difference to the court and prevent the eviction.159

      If the judge rules against you on all of your counterclaims and does not find that any of your defenses are valid, you have lost the eviction case.

      b. If You Are Being Evicted for a Reason That Is Not Your Fault
      (or for No Reason)

      Counterclaims may be used as a defense if you are being evicted for a reason that is not your fault, such as if your lease expired or your landlord wants to rent your apartment to her sister.160

      c. If You Are Being Evicted for a Reason That Is Your Fault

      If you are being evicted for a reason that the landlord claims is your fault (other than non-payment of rent), such as destruction of property or disturbing neighbors, you cannot use counterclaims to prevent the eviction.161 You can, however, still use counterclaims to get money damages in a separate case.162

      You also may still have defenses you can use to prevent the eviction.

      d. Personal Injury Claims and
      Lead Paint Poisoning

      If you have been injured due to your landlord's negligence or your child has been poisoned by lead paint, you can bring a counterclaim for your injuries. These legal claims, however, can be complicated and may involve substantial amounts of money. It is best to speak to a lawyer about bringing one of these claims.

      You may be better off bringing the claim as a separate lawsuit against your landlord as opposed to a counterclaim. If you bring these claims as counterclaims, you will not be able to sue your landlord for these claims later. For example, if your child has been exposed to lead, you may not know how badly she has been hurt until many years after the exposure and so you would most likely not want to bring a claim at the time of your eviction case.

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