Legal defenses and counterclaims
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 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).
Endnotes
112 . Your landlord must file her notice to quit with the summons and complaint. U.S.P.R. 2(d).
113 . Williams v. Seder, 306 Mass. 134, 137 (1940).
114 . U.S.P.R. 2(d) commentary. See endnote 65. Although tenants at will can be evicted for no cause, the complaint should at least allege that a valid notice to quit has expired.
116 . G.L. c. 239, §8A. No cases have specifically dealt with the definition of an "occupant" under the statute, but it apparently includes those who may not fit a strict definition of "tenant."
117 . A landlord who sends only a 14-day notice for non-payment of rent cannot 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).
118 . 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.
119 . G.L. c. 239, §8A, ¶3 makes inspection reports prima facie evidence that a defense and counterclaim exist.
120 . G.L. c. 239, §8A. The Board of Health is required to provide this certification on its inspection report. 105 C.M.R. §410.821(A)(8).
121 . McKenna v. Begin, 3 Mass. App. Ct. 168 (1975).
123 .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 21, 2006); Genovevo v. Gallagher, Hampden Housing Court, 94-SP-4371 (Abrashkin, J., May 17, 1995); Walker v. Lewis, Boston Housing Court, No. 14-SP-5223 (Muirhead, J., Feb. 4, 2015). But see Barretto-Morse v. Laiacona, 2014 Mass. App. Div. 141 (2014) (court finds that where the tenant made a complaint about poor housing conditions after receiving a 14 day notice to quit that tenant may not be entitled to a retaliation defense).
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 6 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.
124 . 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."
125 . See Chapter 7: Discrimination, for citations to federal and state laws that prohibit discrimination on the basis of handicap.
126 . 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). But see FNHMC v. Gomez, Boston Housing Court, No. 12-SP-1497 (Winik, F.J., June 23, 2014) (a request for below market rent as an accommodation for a disabled person who is unable to work is not reasonable, unlike a situation where such a tenant obtained a subsidy which would assist her in paying the market rent).
127 . City Wide Assocs. v. Penfield, 409 Mass. 140 (1991) (mentally handicapped tenant who caused damage to unit could not be evicted without reasonable accommodations). 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, J., Nov. 7, 1989).
128 . Whittier Terrace Assocs. v. Hampshire, 26 Mass. App. Ct. 1020, 532 (1989) (rescript).
129 . Lengieza v. Popko, 84-SPR-0058 (MCAD, 1985) (probable cause finding); Dupont v. White, 82-WPR-0052 (MCAD, 1983) (probable cause finding).
130 . 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).
132 .
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).
133 . Porter v. Merrill, 124 Mass. 534, 541 (1878).
134 . 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 (Travers, Jr., J., 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).
135 . 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.
136 . See M.J.G. Properties v. Hurley, 27 Mass. App. Ct. 250 (1989); Tage II v. Ducas (U.S.) Realty Corp., 17 Mass. App. Ct. 664 (1984).
137 . 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).
138 . 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).
139 . Mulcahy & Dean, Inc. v. Hanley, 332 Mass. 232, 236 (1955) (sublet breach).
140 . Howard D. Johnson Co. v. Madigan, 361 Mass. 454 (1972); Atkins v. Chilson, 52 Mass. 112 (1846); Goldstein v. Tarantino, Norfolk Superior Court, 85-69 (Elam, J., July 3, 1985)Boston Housing Authority v. Bridgewaters, 452 Mass. 833 (2009).
141 . 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.
142 . 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).
143 . Shah v. Shenett, Boston Housing Court, 98-SP-3811 (Daher, C.J., Feb. 4, 1999) (landlord's claim for possession denied where premises had been conveyed prior to time of decision).
144 . 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 Meikle v. Nurse, 474 Mass. 207 (2015); Lawrence v. Osuaqwu, 57 Mass. App. Ct. 60 (2001); Amory Realty Trust v. Diaz, Boston Housing Court, 33820 (King, J., May 31, 1985).
145 . 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.
146 . Cheuk v. Chase, No. 03-SP-02369 (Boston Housing Ct. (Winik, J., July 8, 2003); Cruz Management v. Celado, Boston Housing Court, No. 09-SP-2567 (Winik, J., Aug. 19, 2009); Father Martin Cooperative Homes v. Berry, Boston Housing Court, No. 02-SP-00248 (Edwards, J., Oct. 15, 2002); Diletizia v. Mackie, Boston Housing Court, No. 01-SP-05825 (Winik, J., Jan. 4, 2002); The Community Builders, Inc. v. Scarcella, Boston Housing Court, No. 11-SP-1756 (Muirhead, J July 20, 2011) (exclusion of wrongdoing household member would have been sufficient if court could rely on such exclusion); Chicopee Housing Authority v. Maldonado, Hampden Housing Court, No. SP-2682-C87 (Abrashkin, J., May 27, 1987) Rogerson House, Inc. v. O'Brien, Boston Housing Court, SP No. 33105 (Nov. 5, 1984); Maloney Props., Inc. v. Simon, Boston Housing Court, No. 96-SP-00174 (Winik, J., May 24, 1996); Benchmark Apartment Management v. Williams, Boston Housing Court, No. 96-SP-02621 (Winik, J., June 3, 1996).
148 . Boston Hous. Auth. v. Hemingway, 363 Mass. 184 (1973).
149 . Haddad v. Gonzalez, 410 Mass. 855, 872-73 (1991).
150 . G.L. c. 186, § 14. See, e.g., Bermudez v. Anderson, Boston Housing Court, No. 12-SP-3505 (Muirhead, J., Apr. 5, 2013)
151 . G.L. c. 186, §14; Shea v. Delaney, 2016 Mass. App. Div. 68 (it was a breach of quiet enjoyment for the landlord to enter the property without notice or permission and remove furniture belonging to the landlord and an award of $15,675.75 were not excessive.) But see Clark v. Leisure Woods Estates, Inc., 89 Mass. App. Ct. 87 (2016) (manufactured home residents could recover only one triple rent award for operator’s quiet enjoyment violations.)
152 . G.L. c. 186, §14. These damages can be lessened by a set-off claim by your landlord for rent due. Simon v. Solomon, 385 Mass. 91 (1982). In order for you to recover under G.L. c. 186, §14, the landlord does not have to intentionally try to disturb you; it is her conduct and not her intentions that is controlling. Blackett v. Olanoff, 371 Mass. 714 (1977). For example, the fact that an owner failed to provide heat because she could not afford to buy heating oil does not diminish the tenant's right to recover for the loss of "quiet enjoyment" that occurred during the time the apartment was unheated. Lowery v. Robinson, 13 Mass. App. Ct. 982 (1982). See also Homesavers Council of Greenfield Gardens v. Sanchez, 70 Mass. App. Ct. 453 (2007), for a full discussion of emotional distress damages under G.L. c. 186, §14.
154 . Meikle v. Nurse, 474 Mass. 207 (2015); Tringali v. O'Leary, 2015 Mass. App. Div. 110 (2015); Karaa v. Kuk Yim, 86 Mass. App. Ct. 714 (2014); Stacy v. Zhao, 2013 Mass. App. Div. 59 (2013); Gallo v. Marinelli, Boston Housing Court, No. 15-SP-1469 (Muirhead, J., May 19, 2015; June 8, 2015).
155 . The Consumer Protection Act, G.L. c. 93A, was explicitly extended to cover owners and tenants by St. 1971, Chapter 241, approved by the Legislature on April 29, 1971. The 1971 amendment gave the protection of the Massachusetts Consumer Protection Act to "any person who purchases or leases goods or services, real or personal, primarily for personal, family, or household purposes." The next year the Legislature passed St. 1972, Chapter 123. This amendment explicitly expanded the definition of "trade" and "commerce" in G.L. c. 93A to include rental housing by amending §1(b) of G.L. c. 93A. In Leardi v. Brown, 394 Mass. 151 (1985), the Supreme Judicial Court noted that tenants are among those for whose benefit the Consumer Protection law was passed. The Supreme Judicial Court noted that: "The 1972 amendment to the definition of trade or commerce, adding express reference to the renting and leasing of services or property, did not expand, but only clarified, the scope of the words 'trade' or 'commerce'." Commonwealth v. DeCotis, 366 Mass. 234, 239 (1975). For a detailed discussion of the purposes of G.L. c. 93A, see Slaney v. Westwood Auto, 366 Mass. 688 (1975), and PMP Assocs. Inc. v. Globe Newspaper Co., 366 Mass. 593, 596 (1975).
156 . G.L. c. 93A, §2(a) prohibits "unfair or deceptive acts or practices in the conduct of any trade or commerce." The definition of "act or practice" in the Attorney General's "General Regulations" was amended in 1975 to include "any threat or attempt to perform such act or practice." See 940 C.M.R. §3.01(1). The Attorney General has further declared that an act or practice is in violation of G.L. c. 93A, §2 if it is oppressive or otherwise unconscionable in any respect. C.M.R. §3.16(1).
157 . Kachadorian v. Larson, 87 Mass. App. Ct. 1111 (2015)(compensatory damages awarded to the tenant for landlord’s discrimination offset the rent owed when a defense under G.L. c. 239, §8A defense has been established through a conditions claim.)
158 . Counterclaims in summary process are not compulsory. U.S.P.R. 5.
160 . 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.
161 . 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."
162 . 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.