Bad Conditions and breach of Warranty of Habitability
Breach of quiet enjoyment
Unfair or Deceptive Practices
Loss or Injury from Burglary or Other Criminal Acts
Invasion of Privacy
Paying for Utilities Without a Written Agreement
Failure to Give a Copy of the lease
A civil lawsuit is any case that is not a criminal case. Most cases are civil lawsuits. If you want a judge to issue an order, you can file a civil suit asking for an
If your case involves a lot of money or is complex, you will probably need the help of a lawyer to file a civil lawsuit. The purpose of this section is to explain the most common
Under Massachusetts law, all landlords owe tenants what is called a “warranty of habitability.” This means that a landlord is obligated to keep your apartment in good condition from the time you first move in until you leave.4
It is very important to understand that a landlord cannot get out of her obligation to provide a habitable apartment by claiming that the rent she charged you was discounted because of the bad conditions.5
If your landlord does not keep your apartment in good condition, she has broken or "
The landlord is in violation of the
If problems occur after you have moved in, the landlord has actual knowledge that they exist:
- If she sees them,
- When you tell her about them (either orally or in writing), or
- When a Board of Health or Inspectional Services Department sends her a notice that problems exist.9
Also, when one tenant gives notice of a defect that affects other tenants, the landlord has received notice upon which other tenants may rely.
Not every defect will be enough for a court to say that there has been a lessening of the value of your apartment.10 A court has broad power to decide what is a
When the landlord violates the
If your landlord has seriously
- The seriousness of the defective conditions and their effect on the habitability of the apartment,
- How long you have had to live with the defects,
- Whether the defects could be fixed within a reasonable amount of time and your apartment made livable again, and
- Whether you are responsible for the defects.
If the court finds that the landlord has
You don’t need to get a court to give you permission to move out because of bad conditions. But there is a chance, if you move out before your
leaseis over without a court’s permission, the landlord may sue you for the rent they lost until they could find another tenant. But, if you have a good reason for moving out, the court may not hold you responsible if the landlord does sue you.
You can also file a
reach of quiet enjoyment
In Massachusetts, if a landlord interferes or fails to make repairs which result in your inability to use and enjoy your apartment, this may be a
- If your landlord is required to furnish utilities or other services and she intentionally fails to provide them. Common situations include failure to provide hot water or heat, or failure to fix the furnace or boiler.
- 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 attempts to lock you out or move you out of your apartment without first taking you to court.
- If the landlord in any way intentionally interferes with your "
quiet enjoyment" of your apartment.18
It is very important to understand that the fact that you might owe rent does not prevent you from bringing this type of lawsuit.
If you win your lawsuit, you are also entitled to the costs of filing the lawsuit and your lawyer's fees. A court may award you attorney's fees even if you are not paying the lawyer because she is a legal services lawyer.20 Some lawyers will take these kinds of cases even if you can’t pay them until the case is won or settled.
Some examples that violate your right to the
- Repeated flooding of your apartment because of a plumbing problem that is not adequately repaired.21
- The landlord's failure to provide adequate heat during the heating season even if she could not afford to buy heating oil.22
- The landlord’s failure or refusal to fix the furnace or boiler, even when the tenant is responsible for paying the fuel.
- The landlord converts your private space into a common space, like a porch or basement that used to be accessible only to you.23
- Excessive noise from other tenants under the landlord's control.24
- Emotional distress caused by the landlord's miscalculation of rent and attempt to evict the tenant for non-payment.25
- A ringing fire alarm that continues for a 24-hour period.26
If the landlord's actions have so interfered with your use of the apartment that you have to move immediately, you may be able to do so without having to pay the rent you are obligated to pay.27 But the situation has to be extremely serious for you to be able to break your
Note: If your
State law makes it illegal for the landlord or her agent to take action against you for doing the following things:29
- Notifying your landlord, in writing, of violations of the state Sanitary Code;
- Reporting your landlord to health inspectors, local boards, or other officials for violations of law;
- Withholding rent because of bad conditions;30
- Taking legal action against your landlord
- ¡to enforce your rights; or
- Organizing or joining a tenants organization.
If, within 6 months after you have engaged in any of the above activities, a landlord sends you a
The Massachusetts legislature has recognized that tenants are consumers of one of the most significant consumer products—housing.33 Under the state Consumer Protection Act, called “Chapter 93A,” it is illegal for a landlord to threaten, attempt, or actually use any unfair or deceptive acts against you or anyone in your house.34
For example, if your landlord intentionally shuts off your heat, this would be an unfair or deceptive act that violates the Consumer Protection Act. If your landlord acts in an unfair or deceptive way and this causes you to be "injured,"35 you can take her to court, and possibly get money
Not all landlords, however, are covered by the Consumer Protection Act. If you live in a 2- or 3-family building and the landlord lives in the building with you, the Consumer Protection Act may not apply.39 If you live in a 2- or 3-family building and the landlord lives in the building and uses the rent money to pay the bills, then the Consumer Protection Act does not apply.40 Public housing tenants cannot recover
a. What Is an Unfair or Deceptive Act
An unfair or deceptive act can be any action that violates existing laws or regulations that protect your health, safety, or welfare.42 This can include:
- Violations of the local building codes, housing codes, and state Sanitary Code;
- Violations of the Attorney General’s consumer protection regulations;43
- Unfair debt collection practices;
- Refusing to make repairs after the landlord has notice;
- Violating your right to
quiet enjoyment; breaching the warranty of habitability;
- Not obeying the security deposit law;
- Sending you documents that look like court papers, but are not;
- Refusing to accept court papers from you;
- Using illegal terms in your
- Omitting from your
leasethe name, address, or phone number of the landlord or manager for your building; or
- Failure to give you a copy of your
leasewithin 30 days after you signed it.
Many of the other claims listed in this chapter are also violations of the Consumer Protection Act.
Finally, the law prohibits any other conduct by the landlord that you can convince a judge was unfair or deceptive.44 To make sure you claim all possible violations of the Consumer Protection Act (Chapter 93A), it is best to state at the end of your complaint: "All of my claims are also violations of Chapter 93A of the Massachusetts General Laws. This entitles me to double or triple all actual
b. You Must Send a Demand Letter
If the landlord does not respond to your letter in writing after 30 days, you can sue her.48 If the landlord does respond to your letter, but you do not think the offer is reasonable, you may still sue. But the court may not award
If other tenants are also affected or injured by the landlord's unfair or deceptive acts, you can bring a class action lawsuit against her.52
If your landlord violates the security deposit law, you can sue her as described in Chapter 3: Security Deposits and Last Month's Rent. Any violation of the security deposit law by your landlord may also be a violation of the Consumer Protection Act.53
As a general rule, a landlord must exercise reasonable care in the use and maintenance of her property so people are not injured.54 If a tenant or a tenant's guest is injured because of a landlord's negligence in keeping her property in good condition, that person may sue the landlord or the landlord's agent for money
Personal injury or negligence cases are complex and may involve large money
damages. This type of case may be best handled by a lawyer who specializes in "personal injury" law. In these types of cases, lawyers often take their fees from the final amount you win.
A person may sue for negligence for injuries caused by a dangerous condition that a landlord knew needed correction, but did not correct. The owner is
- Hidden Defects
A landlord is
liablefor injuries caused by hidden defects or bad conditions in your apartment that existed at the beginning of your tenancy.58
- Areas under the Landlord's Control
A landlord is
liablefor injuries caused by defects or problems she knew about in common areas, such as hallways, sidewalks, and stairways.59 Whether these defects existed at the beginning of your tenancyor occurred later, she is liablefor any injury that happens to you.60 She is also liablefor injuries caused in areas within her exclusive control if there were sanitary or building code violations.61
- Failure to Make Repairs
There are three situations in which you can bring a lawsuit against your landlord if you are injured by a condition that she has failed to repair.
- If your landlord has agreed in the
leaseto make repairs, she is liableto you for injuries caused by a hazardous condition that she knew about, but has failed to repair or has not repaired correctly.62
- Your landlord is
liableto you for injuries caused by a defect that she, on her own initiative, has undertaken to repair, but has done in a grossly negligent manner.63
- A landlord is
liableto you for an injury caused by any unsafe condition, not of your own making, of which she has been notified.64 This applies to all landlords except homeowners in 2- and 3-family owner-occupied homes.
- If your landlord has agreed in the
A court may find your landlord negligent for any of the above injuries, even if you have violated a provision of your
If you were the victim of a criminal act, such as a burglary, rape, or assault, in your building or apartment, and the landlord's negligence created an opportunity for the criminal to act, you may be able to sue the landlord for money
If you face the situation described above, you may also be able to claim
There are a number of situations in which you may now recover money
- Emotional Harm That Results in Physical Harm
If a landlord causes you severe emotional distress that results in bodily harm (heart trouble, for example), you may recover for the physical and emotional injuries done to you, whether your landlord's actions were negligent, reckless, or intentional.72
- Emotional Harm by Itself
If a landlord causes you severe emotional distress that does not result in physical harm, you can recover for this purely emotional injury if your landlord's actions were reckless or intentional.73 The money
damagesmay be doubled or tripled if you also claim that the action was an unfair or deceptive practice.
- Physical or Emotional Harm to Another Person
In certain cases, the law in Massachusetts now makes your landlord
liableto other people who are closely related to you and who themselves suffer by your distress.
If a landlord causes you emotional and physical injuries, a third party whose physical health deteriorates due to her concern for you may recover for her own physical and emotional injuries, if your landlord's conduct was negligent, reckless, or intentional.74 A third party who suffers purely emotional injury can recover for this injury only if the owner's conduct was reckless or intentional.75 Where the landlord's conduct was simply negligent and the injury was purely emotional,
You are entitled to sue for an
Under the state Sanitary Code, unless there is a written agreement that specifically states that you, the tenant, are required to pay for the heat, hot water, gas, or electricity, the landlord must pay for these utilities.80 Most tenants without
If you have been paying for the utilities in your apartment without a written agreement, a court is limited to awarding you $25 for this violation.82 You also may still be able to get back everything you paid for the utilities, but courts have not been consistent about the amount of money that they award for this type of violation. In addition, you can ask the judge to have the utility bills put in your landlord's name.83 Even if you have not paid the bill yourself—for instance, if fuel assistance paid part of the bill—you may still get back the full amount of the bills you were sent.84 See Chapter 6: Utilities, for more information.
If you plan to file a claim against a landlord and you have already paid some of the bills yourself, or you have several bills that need to be paid, bring the bills and proof of what you have paid to court with you. If you do not have any utility bills or proof of what you have paid, go to the utility company. The company can give you a computer printout that states how much you have been billed and how much you have paid.85
A landlord who knows about or participates in the creation of a condition that "materially interferes with the ordinary comfort of human existence" or that lowers the reasonable use or value of property may be found
If you determine your apartment has lead paint, and children under 6 years old were living in the apartment, you may have a claim for the landlord’s failure to disclose or remove the lead paint. See Chapter 9: Lead Poisoning.
7 . The state Sanitary Code sets out the conditions that may be deemed to materially endanger the health and safety of tenants. See 105 C.M.R. §410.750. Other defects not included in this list may also have the potential to fall within this category, given the specific conditions.
9 . Boston Hous. Auth. v. Hemingway, 363 Mass. 184 (1973). Berman and Sons, Inc. v. Jefferson, 379 Mass. 196 (1979), held that the right to rent abatement commences from the time the landlord first has knowledge of the condition (contrary to the suggestion in Hemingway that it would begin only after the landlord had failed to repair in a reasonable amount of time). Accord, McKenna v. Begin, 3 Mass. App. Ct. 168 (1975); Montanez v. Bagg, 24 Mass. App. Ct. 954 (1987).
11 . McKenna v. Begin, 3 Mass. App. Ct. 168 (1975);Berman and Sons, Inc. v. Jefferson, 379 Mass. 196 (1979); Montanez v. Bagg, 24 Mass. App. Ct. 954 (1987).
12 . Most judges compute damages by assessing what major code violations there are in your apartment and determining the percentage by which your use and enjoyment of the apartment has been diminished by the existence of these violations. After the court determines the percentage reduction factor applicable to each major violation, the various percentages are totaled to arrive at an aggregate percentage reduction factor. The "reduced" rent is applied to the period during which your landlord knew of the defective conditions, yet failed to correct them. Thus, you can use this as a defense to a non-payment of rent charge (i.e., to reduce the amount of rent owed) or affirmatively to get money back from the landlord. McKenna v. Begin, 5 Mass. App. Ct. 304 (1977).
13 . The owner cannot charge you a smaller amount of money simply to make up for the fact that your apartment is in bad condition and, by this method, reduce her damages, Montanez v. Bagg, 24 Mass. App. Ct. 954 (1987); McKenna v. Begin, 3 Mass. App. Ct. 168 (1975). The amount of the rent reduction, or abatement, that you can get depends on the fair market value, not on the amount of rent being charged, although this may be evidence of the fair market value of the apartment. Boston Hous. Auth. v. Hemingway, 363 Mass. 184 (1973). Therefore, when a tenant's rent is subsidized, the amount of the rent abatement is calculated based on the contract rent, not based on the amount of rent the tenant pays. This means that if a subsidized tenant pays $78 but the full contract rent is $500, the amount of the abatement will be based on $500 and not $78. Simon v. Solomon, 385 Mass. 91 (1982). See Smith v. Renbel Management Co., Hampden Housing Court, SP-4383-S87 (Abrashkin, J., March 24, 1988); But see Serreze v. YMCA of W. Mass., Inc., 30 Mass. App. Ct. 639 (1991). Tenants living in public housing are also permitted to present expert testimony as to the fair market value of their apartments so that rent abatements are based on the fair market value and not on the amount of rent they pay. See Boston Housing Authority v. Williams, Boston Housing Court, 98-SP-2641 (Winik, J., 2000) (abatement based on per-unit operating cost).
18 . 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, Inc. v. Sanchez, 70 Mass. App. Ct. 453 (2007), for a full discussion of emotional distress damages under G.L. c. 186, §14.
19 . See Darmetko v. Boston Hous. Auth., 378 Mass. 758 (1979). If you get G.L. c. 186, §14 damages and G.L. c. 93A damages, the courts have held that you are entitled only to one recovery. That is, if the only violation of G.L. c. 93A was that the landlord failed to fix the apartment properly, you can get only one recovery, either 93A or actual damages, whichever is greater, Wolfberg v. Hunter, 385 Mass. 390 (1982). If, on the other hand, the same act violates two different laws protecting two different rights, you can recover under both laws. Ianello v. Court Management Co., 400 Mass. 321 (1987).
24 . Blackett v. Olanoff, 371 Mass. 714 (1977). Owner rented an abutting premises as an entertainment lounge, from which amplified music and sounds of brawls frequently emanated late into the night. The landlord unsuccessfully argued that he was not personally responsible for the noise. The court found that he was responsible, as he had allowed the place to be used as a lounge. See also Manzaro v. McCann, 401 Mass. 880 (1988), where the court held that owner-caused noise may be sufficient to support a claim for breach of quiet enjoyment.
27 . Thus, when the tenants in Blackett v. Olanoff, 371 Mass. 714 (1977), moved out because of the continuing noise problem, they were not held liable for the rent that was technically continuing to accrue under their rental agreement. See also Charles E. Burt v. Seven Grand Corp., 340 Mass. 124 (1959). In that case, commercial tenants were constructively evicted by the landlord's refusal to provide heat, electricity, and elevator service. See also Cramer v. Knight Real Estate, Hampden Housing Court, 91-SC-1875 (1992) (constructive eviction due to infestation).
28 . Berman & Sons, Inc. v. Jefferson, 379 Mass. 196 (1979). Under the state Sanitary Code, a landlord must pay for the heat and hot water unless there is a written rental agreement that says the tenant or occupant is responsible for the bill. 105 C.M.R. §§410.190 and 410.201. If there is no written rental agreement that specifically provides for payment by the tenant, the tenant may bring a separate claim or counterclaim against the landlord to recover all money paid for heat and hot water bills. Young v. Patukonis, 24 Mass. App. Ct. 907 (1987).
32 . The law does not give you the "presumption" of retaliation if you are being evicted for non-payment of rent. However, you can still bring the retaliation claim; it is just harder to prove without the presumption. G.L. c. 186, §18. For examples of cases in which the tenant won her retaliation claim, see Unachukwu v. Mitchell, Boston Housing Court, 06-SP-04259 (Edwards, Jr., J., Feb. 9, 2007); P.F. Holdings v. Lynch, Boston Housing Court, 96-06018 (Winik, J., March 20, 1997); Hassasta v. Quabira, Boston Housing Court, 02-3522 (Winik, J., Sept. 25, 2002).
33 . The Consumer Protection Act, G.L. c. 93A, was explicitly extended to cover owners and tenants by Chapter 241 of the Acts of 1971 (approved 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 Chapter 123 of the Acts of 1972 (approved March 28, 1972). This amendment explicitly expanded the definition of "trade" and "commerce" in G.L. c. 93A to include rental housing by amending G. L. c. §1(b). 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, Inc., 366 Mass. 688 (1975), and PMP Assocs., Inc. v. Globe Newspaper Co., 366 Mass. 593, 596 (1975).
34 . 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. 940 C.M.R. §3.16(1).
35 . Chapter 406 of the Acts of 1979 (approved July 20, 1979) amended G.L. c. 93A, §9 by broadening recovery to cases in which there was a showing of an "injury" as opposed to the earlier requirement of a showing of "loss of money or property." This was to correct an inadequacy in the law highlighted in Baldassari v. Public Finance Trust, 369 Mass. 33 (1975), where the plaintiff, who had suffered from the harassing debt collection practices of the defendant, was held not to be able to recover damages because of his failure to show "loss of money or property" or the giving up of a right that the plaintiff did not otherwise have to give up. It may still be necessary to prove the existence of some injury or the possibility of injury, since violation of the statute or regulations will not automatically create a claim for relief under G.L. c. 93A. But once the injury is proved, you are able to recover at least the minimum monetary damages ($25 per violation) and perhaps more if a larger dollar value can be related to the defendant's action. Leardi v. Brown, 394 Mass. 151 (1985). In Hershenow v. Enterprise Rent-A-Car Co., 445 Mass. 790 (2006), the Supreme Judicial Court said that a causal connection is required between the deceptive act and an adverse consequence or loss. The Court reaffirmed its holding in Leardi.
37 .G.L. c. 93A, §9(3) and (4). These provisions, however, allow an owner to limit your recovery to relief that the owner offers to you in writing within 30 days, if the court finds that such an offer was reasonable. The statute of limitations for such actions brought under laws intended to protect consumers, including G.L. c. 93A, is now four years. G.L. c. 260, §5A, as amended in 1975. See Babco Industries, Inc. v. New England Merchants Nat'l Bank, 6 Mass. App. Ct. 929 (1978). Prior to the effective date of G.L. c. 260, §5A, the period was set at three years, the general "tort" statute of limitations, by Chapter 777 of the Acts of 1973, Section 1, amending G.L. c. 260, §2A applicable to causes of action arising after January 1, 1974. Prior to that amendment, the period was two years.
For a plaintiff to recover attorney’s fees and damages, “the violation of the legal right that has created the unfair or deceptive act or practice must cause the consumer some kind of separate, identifiable harm arising from the violation itself.” Tyler v. Michaels Stores, 464 Mass. 492, 503 (2013).
G.L. c. 93A, §9(3) and (4). These provisions, however, allow an owner to limit your recovery to relief that the owner offers to you in writing within 30 days, if the court finds that such an offer was reasonable. The statute of limitations for such actions brought under laws intended to protect consumers, including G.L. c. 93A, is now four years. G.L. c. 260, §5A, as amended in 1975. See Babco Industries, Inc. v. New England Merchants Nat'l Bank, 6 Mass. App. Ct. 929 (1978). Prior to the effective date of G.L. c. 260, §5A, the period was set at three years, the general "tort" statute of limitations, by Chapter 777 of the Acts of 1973, Section 1, amending G.L. c. 260, §2A applicable to causes of action arising after January 1, 1974. Prior to that amendment, the period was two years.
For a plaintiff to recover attorney’s fees and damages, “the violation of the legal right that has created the unfair or deceptive act or practice must cause the consumer some kind of separate, identifiable harm arising from the violation itself.” Tyler v. Michaels Stores, 464 Mass. 492, 503 (2013).
38 . G.L. c. 93A, §9(3) states that a plaintiff is entitled to at least double and up to triple damages. When a landlord's actions are clearly unlawful under the Attorney General's regulations, that is sufficient grounds to hold her actions to be willful, justifying the award of double or triple damages and attorney's fees. Montanez v. Bagg, 24 Mass. App. Ct. 954 (1987); see also Heller v. Silverbranch Constr. Corp., 376 Mass. 621 (1978). Willfulness can also be established if the landlord refuses to agree to a reasonable offer for settlement and thus "force[s] the plaintiffs to litigate their claim." Heller v. Silverbranch Constr. Corp., 376 Mass. 621, 628 (1978). On the other hand, you can still get actual damages even if the landlord did not know she was violating the law. "The 'willful or knowing' requirement of §9(3) goes not to actual knowledge of the terms of the statute, but rather to knowledge, or reckless disregard, of conditions in a rental unit which, whether the defendant knew it or not, amount to violations of the law." Montanez v. Bagg, 24 Mass. App. Ct. 954, 956 (1987).
39 . In Billings v. Wilson, 397 Mass. 614 (1986), the Supreme Judicial Court held that an owner who lives in a two-family house who rents out the second floor to help pay the mortgage is not in the business of being a landlord and is not subject to G.L. c. 93A. See also Young v. Patukonis, 24 Mass. App. Ct. 907 (1987)
41 . See Boston Housing Authority v. Howard, 427 Mass. 537 (1998), where the Supreme Judicial Court held that the Housing Authority was not engaged in trade or commerce and thus was not covered by G.L. c. 93A.
42 . Attorney General's General Regulations issued under authority granted by G.L. c. 93A, §2(c); 940 C.M.R. §3.16(3). It is a good idea to introduce the regulations into evidence if you have a case where you are relying on them to prove that the defendant committed an unfair and deceptive act. You cannot necessarily assume that the court will take judicial notice of the regulations, see York v. Sullivan, 369 Mass. 157, 160 n.2 (1975), although a statute now states that regulations published in the Massachusetts Register (put out for sale every week in the Mass. Book Store at the State House or at any State bookstore) "shall be judicially noticed." G.L. c. 30A, §6, last paragraph, as inserted by Chapter 459 of the Acts of 1976, Section 5 (approved October 22, 1976).
44 . In Nei v. Burley, 388 Mass. 307, 315 (1983), the Supreme Judicial Court held that there is no right to a jury trial under G.L. c. 93A. A court has discretion, however, on the motion of either party to allow ". . . issues of fact to be tried to a jury." Mass. R. Civ. P. 39(c).
How "unfair or deceptive acts or practices" is to be construed is provided for in G.L. c. 93A, §§2(b) and (c). G.L. c. 93A, §2(b) reads: "It is the intent of the Legislature that in construing paragraph (a) of this section . . . the courts will be guided by the interpretations given by the Federal Trade Commission and the Federal Courts to section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. §45(a)(1)), as from time to time amended." G.L. c. 93A, §2(c) states that the Attorney General is authorized to make regulations consistent with the provisions of §2(b) interpreting the statute.
The Supreme Court has approvingly said of the Federal Trade Commission's guidelines that "in measuring a practice against the elusive, but congressionally mandated standard of fairness, it, like a court of equity, considers public values beyond simply those enshrined in the letter or encompassed in the spirit of the anti-trust laws." Federal Trade Commission v. Sperry & Hutchinson Company, 405 U.S. 233, 244 (1972).
The Supreme Judicial Court has explicitly adopted this Federal Trade Commission rule as a guide for interpreting G. L. c. 93A. See PMP Assocs., Inc. v. Globe Newspaper Co., 366 Mass. 593, 596 (1975). Moreover, consistent with this broad federal standard, the Massachusetts Attorney General has declared that "an act or practice is a violation of Chapter 93A, Section 2 if [i]t is oppressive or otherwise unconscionable in any respect. . . ." 940 C.M.R. §3.16, intro and (1). The application of this standard by the Supreme Judicial Court has led to rulings that the existence of an industry-wide standard does not constitute a defense to a Chapter 93A action. Commonwealth v. DeCotis, 366 Mass. 234, 240 (1974); 35 Mass. Practice Series, §116. See Slaney v. Westwood Auto, Inc., 366 Mass. 688, 704 (1975) (93A "is not subject to the traditional limitations of preexisting causes of action such as tort for fraud and deceit"); Commonwealth v. DeCotis, 366 Mass. 234, 244, n.8 (1974); Dodd v. Commercial Union, Inc., 373 Mass. 72 (1977); Heller v. Silverbranch Constr. Corp., 376 Mass. 621 (1978) (defendant's defenses to common law causes of action insufficient to defend against 93A). Specifically, in York v. Sullivan, 369 Mass. 157 (1975), the court found that a landlord's assurances that rent would remain stable during a one-year lease period bound him despite subsequent approval of a rent increase by HUD. In addition, the Supreme Judicial Court has ruled that broad standards in another statute, similar to G. L. c. 93A are not unconstitutionally vague. Commonwealth v. Gustafsson, 370 Mass. 181 (1976).
Finally, a violation of G.L. c. 93A will occur if an act or practice is unfair. See 35 Mass. Practice Series, §116 (Comment at 46); Commonwealth v. DeCotis, 366 Mass. 234, 241 (1974) (mobile home park practice unfair). Similarly, an act need only be "deceptive." In Lowell Gas Co. v. Attorney General, 377 Mass. 37 (1979), the court found that "a practice is deceptive if it could reasonably be found to have caused a person to act differently from the way he otherwise would have acted." 377 Mass. at 51.
45 . G.L. c. 93A, §9(3). The demand letter is a procedural prerequisite to any G.L. c. 93A action, and the failure to send an appropriate letter will bar any subsequent suit. Entrialgo v. Twin City Dodge, Inc., 368 Mass. 812 (1975). However, if you are asserting the 93A claim by way of counterclaim (for example, in an eviction case) or cross-claim, you do not have to send the demand letter because of special language in the next to the last sentence of G. L. c. 93A, §9(3), inserted by Chapter 406 of the Acts of 1979, Section 2.
46 . G.L. c. 93A, §9(3). No relief is available in court from practices that are not listed in the demand letter. Entrialgo v. Twin City Dodge, Inc., 368 Mass. 812 (1975). For a full discussion of the requirements of a demand letter, see Slaney v. Westwood Auto, Inc., 366 Mass. 688 (1975).
48 . Even if your landlord sends you a written offer of settlement within 30 days, you can still sue. But if the court finds that your landlord's offer was "reasonable," your recovery will be limited to the relief offered by your landlord, plus attorney's fees and costs incurred before you rejected her offer. G.L. c. 93A, §9(3) and (4). See Kohl v. Silver Lake Motors, Inc., 369 Mass. 795 (1976).
Where a landlord has led a tenant to believe the rent will be stable for a year, and then tries to increase the rent during that year, it is not a "reasonable" settlement offer for the landlord to offer the tenant a lease cancellation without penalty and no eviction until a court decision on the increase. York v. Sullivan, 369 Mass. 157 (1975).
While this 30-day letter procedure is a prerequisite for success under G. L. c. 93A, administrative remedies (where they exist) need not be exhausted before bringing a G. L. c. 93A action. G.L. c. 93A, §9 (6) and (8), added by Chapter 939 of the Acts of 1973 (approved October 23, 1973), effectively overruling Gordon v. Hardware Mut. Casualty Co., 361 Mass. 582 (1972). Further, the existence of a separate statute regulating industry practice does not preclude the application of G.L. c. 93A to the conduct in question. See, e.g., Dodd v. Commercial Union Ins. Co., 373 Mass. 72 (1977) (insurance industry); Lowell Gas Co. v. Attorney General, 377 Mass. 37 (1979) (public utility company); Schubach v. Household Fin. Corp., 375 Mass. 153 (1978) (small loan company).
However, the court does have the power to require exhaustion of other remedies. See G.L. c. 93A, §9 (7). The existence of a remedy in equity is no bar to bringing one at law (i.e., for money damages rather than an injunction). Slaney v. Westwood Auto, Inc., 366 Mass. 688, 700 (1975).
50 . G.L. c. 93A, §9(3) and (4). However, "even a wilful or knowing violator of §2 may limit his maximum potential damages by making a reasonable offer of settlement." Kohl v. Silver Lake Motors, Inc., 369 Mass. 795, 803 (1976).
54 . For a full discussion of the history and evolution of the tort liability of landlords, see Javins v. First Nat'l Realty Corp., 428 F.2d 1071, 1074-80 (D.C. Cir. 1970) cert. den. 400 U.S. 925 (1970); Boston Hous. Auth. v. Hemingway, 363 Mass. 184 (1973);Crowell v. McCaffrey, 377 Mass. 443 (1979).
55 . Crowell v. McCaffrey, 377 Mass. 443 (1979). In this case, the court ruled that the questions of owner liability for negligence and breach of warranty of habitability had to go to the jury. This means that an owner can be held liable to a tenant for damage caused by the owner's negligent failure to repair building and Sanitary Code violations. In Crowell, the injury occurred when the tenant fell from a porch after the railing gave way. The Supreme Judicial Court found that it did not matter whether or not the tenant had rented the porch; the owner was still responsible when injury resulted from the failure to maintain the porch in accordance with the building and sanitary codes. The court said: "Thus extension of the warranty [of habitability] to the ordinary residential tenancy at will, in accordance with the Hemingway decision, logically carries with it liability for personal injuries caused by a breach." 377 Mass. at 451.
58 . McKenna v. Begin, 5 Mass. App. Ct. 304 (1977). The owner is deemed to have knowledge of all problems that exist in the apartment at the beginning of a tenancy as well as any problems that are reported to her by the tenants. Kraus v. Webber, 359 Mass. 565 (1971).
60 . G.L. c. 186, §15E states that it is no defense that the defect existed at the time of the letting, if the defect was in violation of a building code. The Supreme Judicial Court has acknowledged that this section reflects legislative reform of the common law rule of non-liability of owners for injuries occurring on defective premises. Simon v. Solomon, 385 Mass. 91, 100-101 (1982).
62 . DiMarzo v. S. & P. Realty Corp., 364 Mass. 510 (1974) (owner who had agreed to make repairs is liable in tort to injured employee of tenant when owner failed to make repairs) and cases cited; Markarian v. Simonian, 373 Mass. 669 (1977) (tenant may recover for injuries suffered as a result of repairs effectuated in a negligent manner).
65 . G.L. c. 231, §85: Comparative negligence: "Contributory negligence shall not bar recovery in any action . . . if such negligence was not greater than the total amount of negligence attributable to the person or persons against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person [trying to recover]."
66 . Gidwani v. Wasserman, 373 Mass. 162 (1977) (owner liable to commercial lessee for burglary where he entered premises without adequate notice, disconnected burglar alarm, and neglected to reset it). Cf. Mullins v. Pine Manor College, 389 Mass. 47 (1983) (college held liable where its inadequate security measures resulted in rape of student, but the college was held to a higher duty of care than regular landlords); Parslow v. Pilgrim Parking, Inc., 5 Mass. App. Ct. 822 (1977) (parking garage liable to rape victim because of inadequate security measures).
67 . Gidwani v. Wasserman, 373 Mass. 162 (1977) (owner liable to commercial lessee for burglary where he entered premises without adequate notice, disconnected burglar alarm, and neglected to reset it). Cf. Mullins v. Pine Manor College, 389 Mass. 47 (1983) (college held liable where its inadequate security measures resulted in rape of student, but the college was held to a higher duty of care than regular landlords); Parslow v. Pilgrim Parking, Inc., 5 Mass. App. Ct. 822 (1977) (parking garage liable to rape victim because of inadequate security measures).
68 . Bellows v. Worcester Storage Co., 297 Mass. 188 (1937) (warehouse owner's failure to repair broken slats in door held not to be proximate cause of entry of insane person who set fire to the warehouse; the foreseeable risk was theft, not arson).
69 . Young v. Jackson, Boston Housing Court, SP-40979-40984 (Abrashkin, J., 1987); Renbel Management Co. v. Adkins, Hampden Housing Court, 88-SP-8408 (Abrashkin, J., 1989) (damages awarded to the tenant based on reduced value of the property and negligence following a robbery in the apartment and insufficient maintenance).
70 . In George v. Jordan Marsh, 359 Mass. 244, 245, n.l. (1971), emotional distress was defined as any "mental anguish, mental suffering, mental disturbance, mental humiliation, nervous shock, emotional disturbance, distress of mind, fright, terror, alarm, [or] anxiety." The old rule limiting recovery was established in Spade v. Lynn & B.R.R., 168 Mass. 285, 290 (1897) ("there can be no recovery for fright, terror, alarm, anxiety, or distress of mind, if these are unaccompanied by some "physical injury; . . . and there can be no recovery for such physical injuries as may be caused solely by such mental disturbance, where there is no injury to the person from without"). Over the years, however, a number of inroads were made into this rule. It was finally overturned in Dziokonski v. Babineau, 375 Mass. 555 (1978).
See Simon v. Solomon, 385 Mass. 91 (1982) (damages allowed for emotional distress caused by landlord's substandard maintenance of apartment); Homesavers Council of Greenfield Gardens v. Sanchez, 70 Mass. App. Ct. 453 (2007).
71 . The severity of the emotional distress must be "of a nature 'that no reasonable [person] could be expected to endure it.'" Agis v. Howard Johnson Co., 371 Mass. 140, 145 (1976), quoting from Restatement (Second) of Torts, §46 (Comment j) (1965); see also Abdeljaber v. Gaddoura & Kheiry, 60 Mass. App. Ct. 294 (2004) (tenant awarded $3,000 for emotional distress where landlord grabbed tenant's 8-year-old daughter by the arm and shouted obscenities at her; awarded double damages under Chapter 93A).
72 . The term "negligent" is a legal one. In law, a "negligent" act is essentially an unintentional but unreasonable act that foreseeably will and actually does cause injury to another person. The rule for emotionally based physical injuries caused by the defendant's negligence was established in Cameron v. New England Tel. & Tel. Co., 182 Mass. 310, 312 (1902); Driscoll v. Gaffey, 207 Mass. 102, 105-107 (1910); see also George v. Jordan Marsh, 359 Mass. 244 (1971).
In cases of this character, there must be both a substantial physical injury and proof that the injury was caused by the defendant's negligence. Beyond this, the determination whether there should be liability for the injury sustained depends on a number of factors, such as where, when, and how the injury to the third person entered into the consciousness of the claimant, and what degree there was of familial or other relationship between the claimant and the third person.
See also Cohen v. McDonnell Douglas Corp., 389 Mass. 327 (1983). Where court found that the defendant could not be held liable for the emotional distress of a third party.
78 . Where a landlord's wife attended a closed tenants' union meeting under an assumed name and secretly taped the proceedings in anticipation of litigation, two attorneys who were present later sued under Massachusetts anti-wiretap statute (G.L. c. 272, §99) for damages. Pine v. Rust, Boston Housing Court, 13409 (King, J., 1986). While the tenants presumably suffered an invasion of privacy, this claim was not raised in the suit.
79 . In a New Hampshire case, the court said that a husband and wife, as tenants, had grounds to sue the owner for invasion of privacy when they discovered he had "bugged" their bedroom and had apparently listened in on them. The "invasion" in invasion of privacy need not be a physical intrusion by a person. Hamberger v. Eastman, 206 A.2d 239 (N.H. 1964).
80 . 105 C.M.R. §§410.190, 410.201, and 410.354. The case of Young v. Patukonis, 24 Mass. App. Ct. 907 (1987), held that any tenant paying for heat and hot water without a written agreement could get back all money paid on these bills from the owner.
82 . Sclamo v. Shea, 29 Mass. App. Ct. 1113 (1990) (Memorandum and Order Pursuant to Rule 1:28).
83 . McCormick & Williamson v. Butler, Hampden Housing Court, SP-7404-S (Abrashkin, J., January 19, 1989).
84 . McCormick & Williamson v. Butler, Hampden Housing Court, SP-7404-S (January 19, 1989).
85 . Keep in mind that any violation of the state Sanitary Code is also a violation of G.L. c. 93A. Therefore, be sure to include this claim as a claim under the Consumer Protection Law. If the judge finds that the owner acted unfairly or deceptively in not paying for the utilities, she can double or triple all of the money you are awarded for this claim. Remember that under G. L. c. 93A, you must send a demand letter before filing a lawsuit.