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. 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.
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 21, Foreclosures.
Your Landlord Did Not Terminate Your Tenancy Properly
Your landlord must prove that she properly terminated your tenancy.104 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).105
- 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.
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.106
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.107 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 three consecutive months;108
- 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.109
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.
- The conditions can be repaired without your moving out.110
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.111
A certified inspection report is one signed under the pains and penalties of perjury.112 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.113 For more information, see the section called Establishing That Your Landlord Had Knowledge of Illegal Conditions in Chapter 8: Getting Repairs Made.
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.
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 seven days the amount the judge says you owe, you cannot be evicted. If you don't owe the landlord any money, you cannot be evicted. Of course, if you do owe money and don’t pay it within seven days, you can be evicted.
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 seven 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.114 For more information about rent withholding, see Chapter 8: Getting Repairs Made.
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 six 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.115
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.116 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.117 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.118 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.119 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.120
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.121 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.122
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.
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 should not be legal in Massachusetts. Some lease provisions are automatically illegal and cannot be enforced.123 You may argue that others should not be enforced.124 (See Chapter 2: Before Moving In.)
- Your landlord gave up (waived) her right to object to your breach because she consented to it125 and did not expressly reserve the right to proceed with the eviction.126 It is best to get this consent in writing, because verbal consent is hard to prove and sometimes not admissible in court.127
- 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").128
The acceptance of rent by the landlord does not always act as a permanent waiver.129
- The violations occurred prior to the renewal or during the term of the previous lease.130
- A new owner is trying to evict you for a breach that occurred before she acquired the property.131
- 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.132
Sale of the Premises
If your landlord sells the building you live in while the eviction action is pending133 or even after a judge has ordered an eviction, you have a defense against the new owner if she proceeds with the eviction,134 unless the old landlord assigned her rights to the new landlord prior to or at the time of the sale.135 Use the discovery process to ask the new owner for any assignment agreement.
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.136 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,137 the court should not allow the landlord to evict you.
Counterclaims May Prevent Eviction
You can sue your landlord for money as part of your eviction case if your claims are related to your tenancy.138 These claims are called counterclaims if you raise them during an eviction case. They are claims for money. For a list of counterclaims, see the Answer form (Booklet 3). (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.)139
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 the section called Grounds for Filing a Civil Lawsuit in Chapter 14: Taking Your Landlord to Court 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.
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 seven days after receiving notice from the court to pay the difference to the court and prevent the eviction.140
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.141
If You Are Being Evicted for a Reason That Is Your Fault
If you are being evicted for a reason that 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.142 You can, however, still use counterclaims to get money damages in a separate case.143
You also may still have defenses you can use to prevent the eviction.
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.
109 . A landlord who sent only a 14-day notice for non-payment of rent could not rely on any allegations of tenant fault since she would have been required to send a 30-day notice for fault-based eviction. Kahaly v. Sinke, Roxbury District Court, 12164 (Martin, Jr., J., Nov. 25, 1987); Berry v. Rodriguez, Boston Housing Court, 07-SP-01629 (Muirhead, J., May 23, 2007).
110 . G.L. c. 239, § 8A allows a tenant or occupant to base a defense or counterclaim on any claim against the landlord that relates to the property, rental, tenancy, or occupancy. It is therefore possible to defend against a non-payment or no-fault eviction whenever your landlord has violated any term of your tenancy agreement, breached the warranty of habitability, or violated any relevant law or regulation. If the tenant's defense or counterclaim is based on the condition of the premises or services provided, the tenant must comply with the specific requirements specified in G.L. c. 239, § 8A.
115 . G.L. c. 239, § 2A as amended by St. 1978, c. 149. This amendment added the requirement that the presumption of retaliation can be overcome only if the landlord presents "clear and convincing evidence."
The second part of this standard is often overlooked by the courts, but is very important, especially for tenants at will in a "no-fault" eviction, since it requires the landlord to prove a legitimate reason for the eviction. It is also important in cases where the tenant is "at fault." (For example, if your landlord claims that she is evicting you because you have a pet in violation of your tenancy agreement, but your landlord has known about the pet for a long time and didn't bring the eviction until you engaged in some protected activity, it would be very difficult for her to overcome the presumption of retaliation because she could have previously evicted you for the given reason.) See Collin v. Eldridge, Worcester Superior Court, 28794 (Oct. 23, 1984); Michel v. Monfiston, Boston Housing Court, 06-SP-1613 (Winik, J., June 22, 2006); Genovevo v. Gallagher, Hampden Housing Court, 94-SP-4371 (Abrashkin, J., May 17, 1995).
The retaliation defense under G.L. c. 239, § 2A applies to all eviction cases, including non-payment of rent cases. Compare G.L. c. 186, § 18 (sending notice to quit for non-payment of rent does not trigger presumption of retaliation). You may be able to use this defense successfully in a non-payment case where the landlord sent a notice to quit for non-payment shortly after your rent was due and within six months of your engaging in protected activities. Your claim would be stronger if your landlord usually waits a month or two for late rent before sending non-payment notices.
116 . Stone Run East Assocs. v. McDonald and Harrison, Quincy District Court, E-88-0002, E-88-0003 (Sept. 19, 1988). In Stone Run, a handicapped tenant raised a discrimination defense in an eviction brought by a landlord because the tenant allegedly interfered with the rights of other tenants and permitted unauthorized occupants to reside in the apartment in violation of the lease. The court rejected the landlord's claim that G.L. c. 239, § 8A precluded the tenant's defenses in a fault-based eviction, holding that "the court cannot be in a position to assist a landlord in pursuing a discriminatory eviction. For purposes of this motion I must assume that there has been discrimination. If the defendant is able to establish that discrimination is the motive underlying the termination of the tenancy then it should be a bar to the action."
118 . 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).
119 . City Wide Assocs. v. Penfield, 409 Mass. 140 (1991). See also Sears v. Colson, Hampden Housing Court, 93-SP-3174 (Abrashkin, J., Jan. 12, 1993); Worcester Housing Authority v. Santis, Worcester Housing Court, 89-SP-0471 (Martin, Nov. 7, 1989) (mentally handicapped tenant who caused damage to unit could not be evicted without reasonable accommodations).
121 . Lengieza v. Popko, 84-SPR-0058 (MCAD, 1985) (probable cause finding); Dupont v. White, 82-WPR-0052 (MCAD, 1983) (probable cause finding).
122 . See East Boston Three Realty Trust v. Piantedosi, Boston Housing Court, 35497 (Martin, J., July 15, 1985); McDonagh v. Wible, Boston Housing Court, 36012 (Martin, J., July 12, 1985).
124 . G.L. c. 93A and the Attorney General's regulations promulgated thereunder prohibit oppressive or unconscionable acts and practices by landlords. This presumably includes insisting on terms that are oppressive or unconscionable. In Commonwealth v. DeCotis, 366 Mass. 234 (1974), the Supreme Judicial Court disallowed certain resale fees being charged by mobile home park owners. One of the standards used was the unconscionability provision of the Uniform Commercial Code (UCC): "That provision of the Uniform Commercial Code which permits a court to refuse to enforce a contract or a contract provision which is unconscionable, provides a reasonable analogy here." UCC, G.L. c. 106, § 2-302(1), provides: "If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result." For an overview of this problem and arguments supporting the extension of the UCC, see Note, The Tenant as a Consumer, 3 U.C. Davis L. Rev. 59 (1971). For a case holding that a lease is a "good" under the UCC, see Silverman v. Alcoa Plaza Assocs., 37 App. Div. 2d 166, 323 N.Y.S.2d 39 (1971).
Another approach is to analyze unfair leases or clauses as "contracts of adhesion." Contracts of adhesion have been defined as "agreements in which one party's participation consists of his mere 'adherence,' unwillingly and often unknowingly, to a document drafted unilaterally and insisted upon by what is usually a powerful enterprise." Ehrenzweig, Adhesion Contracts in the Conflict of Laws, 53 Colum. L. Rev. 1072, 1075 (1953). The closest a Massachusetts court has come to this view is to say that since the landlord has dictated the terms of the lease, any doubts about restrictive lease terms, whose scope and effect are not clear, will be resolved in favor of the tenants. Mutual Paper Co. v. Hoague-Sprague Corp., 297 Mass. 294 (1937).
126 . Paeff v. Hawkins-Washington Realty, 320 Mass. 144, 145 (1946); Saxeney v. Panis, 239 Mass. 207, 210 (1921); Nelson Theater Co. v. Nelson, 216 Mass. 30, 34 (1913); Anderson v. Lissandri, 19 Mass. App. Ct. 191, 196 (1985); Roberts Milford Assocs. & Rolling Green Management v. Weaver, Worcester Superior Court, 84-29046 (Mar. 5, 1985); Allen Park Assocs. v. Lewandowski, Hampden Housing Court, 99-RD-9400-9 (Abrashkin, J., May 8, 1989) (landlord accepted rent from tenant for several years while knowing tenant owned a dog, did not object, and allowed other tenants to keep pets without objection; landlord has waived objection to tenant's dog despite a no-pet clause in lease); Cardaropoli v. Panagos, Hampden Housing Court, SP-3144-S-84 (Peck, Jr., J., June 4, 1984).
127 . Evidence of oral consent would generally not be admissible if it took place before or at the time of the signing of a written lease.
129 London v. Tebo, 246 Mass. 360, 362-63 (1923) (acceptance of rent does not waive landlord's right to terminate for a continuing breach, which here was the tenant's covenant to repair); Corcoran Management Co. v. Withers, 24 Mass. App. Ct. 736 (1987) (landlord's acceptance of rent without reservation of rights did not establish new tenancy where tenant had received numerous notices from landlord that his conduct was considered to be in violation of lease and where tenant signed agreement that provided that acceptance of rent for use and occupation shall not be deemed as a waiver).
130 . Roseman v. Day, 345 Mass. 93 (1962); Globe Leather & Shoe Findings, Inc. v. Golburgh, 339 Mass. 380 (1959) (renewal of month-to-month tenancy by acceptance of rent); Mulcahy & Dean, Inc. v. Hanley, 332 Mass. 232, 235 (1955) (sublet breach); Kaplan v. Flynn, 255 Mass. 127 (1926) (renewal equitably blocks forfeiture of lease); CMJ Management Co. v. Paris, Boston Housing Court, 96-03148 (Winik, J., Nov. 22, 1996); Cardaropoli v. Panagos, Hampden Housing Court, SP-3144-S-84 (Peck, Jr., J., June 4, 1984).
133 . April v. Abel, Quincy District Court, E-3962 (Whitman, J., 1987) (landlord's motion to substitute purchasing landlord for selling landlord in pending summary process action denied where building was sold after entry of action but prior to hearing on the merits). Mass. R. Civ. P. 25 does not allow for substitution unless the seller assigns the overdue rents to the buyer.
134 . LaPierre v. Riel, Worcester Housing Court, 86-SP-0170 (Martin, J., Mar. 7, 1986) (new owner has no right to the judgment or execution where selling landlord did not transfer or assign the judgment and right to the execution to the new owner prior to or contemporaneous with the sale of the property; former owner cannot regain possession in which he has no interest). But see Poutahidis v. Clingan, 2001 Mass. App. Div. 217 (notice to quit given by plaintiff's predecessor in title terminated tenancy, and occupant was a tenant at sufferance when plaintiff purchased the property).
135 . See also Shah v. Shenett, Boston Housing Court, 98-SP-3811 (Daher, C.J., Feb. 4, 1999); Young v. Jackson, Boston Housing Court, SP 40979-40984 (Abrashkin, J., Apr. 10, 1987) (landlord's claim for possession dismissed where premises had been conveyed prior to time of decision).
136 . G.L. c. 239, § 8A. This is a very broad-based defense and includes Sanitary Code violations, breach of the warranty of habitability, breach of any material term of the rental agreement, or any violation of law related to the tenancy, such as a breach of quiet enjoyment or violation of the security deposit requirements. See Lawrence v. Osuaqwu, 57 Mass. App. Ct. 60 (2001); Amory Realty Trust v. Diaz, Boston Housing Court, 33820 (King, J., May 31, 1985).
137 . Interference with quiet enjoyment, under G.L. c. 186, § 14, includes: failure to provide utilities required by the law or the rental agreement; cutting off tenant's utilities; transferring responsibility of payment for utilities to tenant without tenant's knowledge or consent; moving tenant out or changing the locks without a court order; requiring tenant to pay for heat or hot water without a written agreement that tenant would do this; interfering with tenant's ability to enjoy the home in any other way.
141 . G.L. c. 239, § 8A. There are several possible rationales for this defense. One is that the plain language of G.L. c. 239, § 8A. says that claims can be used as a defense. Another is that if the court awards the tenant any money on her counterclaims in a no-fault eviction that is not based on non-payment of rent, then the tenant will have recovered more money than the landlord and will retain possession under G.L. c. 239, § 8A. A third possible rationale is that G.L. c. 239, § 8A. creates a "clean hands" doctrine that prohibits a landlord who has violated her tenant's rights from regaining possession in an eviction where the tenant is without fault.
142 . Spence v. O'Brien, 15 Mass. App. Ct. 489 (1983). This case did not define "fault," but made it clear that it is more than any "cause" and must involve "wrongdoing" or the toleration of another's "wrongdoing."
143 . Ednson Realty Trust v. Robinson, Hampden Housing Court, 88-SP-7252-C (Abrashkin, J., Nov. 21, 1988). In Ednson Realty, the court rejected a landlord's claim that G.L. c. 239, § 8A precludes counterclaims in fault-based evictions. The court noted that § 8A and U.S.P.R. 5 state that counterclaims shall be permitted in no-fault cases, but do not say that they cannot be permitted in other cases. It also noted that other counterclaims are available outside of § 8A and that courts retain discretion under U.S.P.R. 5 to sever those counterclaims where appropriate.
Many thanks to Zach Howe for his work on the endnotes for this chapter.
Produced by Maureen E. McDonagh and Julia E. Devanthéry Last updated May 2014