Ferreira v. Charland ( 2023 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
22-P-300 Appeals Court
CASSANDRA FERREIRA vs. LAURAL CHARLAND.1
No. 22-P-300.
Hampden. April 28, 2023. - September 5, 2023.
Present: En banc.2
Summary Process, Appeal, Notice to quit. Landlord and Tenant,
Termination of tenancy, State sanitary code, Eviction.
Practice, Civil, Summary process, Counterclaim and cross-
claim. Statute, Construction.
Summary process. Complaint filed in the Western Division
of the Housing Court Department on December 14, 2020.
The case was heard by Robert G. Fields, J.
Gabriel L. Fonseca for the defendant.
Lawrence J. Farber for the plaintiff.
Andrea Joy Campbell, Attorney General, Alda Chan, Assistant
Attorney General, & Sean P. Attwood, Special Assistant Attorney
General, for the Attorney General, amicus curiae, submitted a
brief.
1 Jason Charland and James Vasquez were also named as
defendants in the complaint. Only Laural Charland has appealed
from the judgment.
2 Justice Sullivan participated in the deliberation on this
case prior to her retirement.
2
Richard M.W. Bauer, Ilana B. Gelfman, Susan Hegel, Daniel
Ordorica, & Joshua M. Daniels, for Volunteer Lawyers Project,
amicus curiae, submitted a brief.
BLAKE, J. In this no-fault summary process action, the
question on appeal is whether the landlord's tender of damages
to the tenant3 for the landlord's violation of G. L. c. 186, § 22
(water use statute), after the landlord commenced summary
process proceedings, precluded the tenant from asserting G. L.
c. 239, § 8A (§ 8A), as a defense to possession (as set forth in
the tenant's counterclaim).4 A judge of the Housing Court
answered the question "yes," reasoning that the landlord's
tender was "knowingly accepted by the tenant without any
reservation of rights." He entered judgment awarding Cassandra
Ferreira (landlord) possession of the leased premises. Tenant
Laural Charland (tenant) appeals, arguing that the landlord's
tender of damages did not settle her counterclaim and that the
judge misinterpreted § 8A. We conclude that a landlord's
violation of the water use statute gives the tenant a potential
defense to possession under § 8A. We also conclude that a
3 The lease was signed by three tenants -- Laural Charland,
Jason Charland, and James Vasquez. Because this appeal only
pertains to Laural Charland, we refer to tenant in the singular.
4 The tenant also asserted counterclaims for violation of
the security deposit and the last month's rent laws pursuant to
G. L. c. 186, § 15B, neither of which the tenant presses on
appeal.
3
landlord's tender of money damages to the tenant, after the
landlord commenced summary process proceedings, does not moot
the tenant's claim to possession, unless the tenant has clearly
released the claim, because money damages are but one of two
available remedies -- the other being the tenant's ability to
remain in the property (possession) upon proof of a valid
counterclaim or defense under § 8A. Here, because the tenant's
§ 8A counterclaim effectively was dismissed prematurely on
grounds of mootness, the tenant did not have the opportunity to
prove her counterclaim at trial. We therefore vacate the
judgment, and remand for further proceedings consistent with
this opinion.5
Background. We recite the facts upon which the parties
agree, supplemented with uncontested facts from the record. In
2016, the tenant signed a lease for a single-family home that,
since approximately 2013, had been the landlord's primary
residence.6 The lease required the tenant to pay for utilities,
including hot water and city water and sewer charges. In July
2020, the landlord notified the tenant that she needed to move
back into her home but due to the Massachusetts moratorium on
5 We acknowledge the amicus briefs submitted by the Attorney
General and the Volunteer Lawyers Project.
6 The landlord testified that the amount of rent was
intended to cover the mortgage and a portion of her real estate
taxes for the property.
4
evictions, she could not serve the tenants with a notice to quit
at that time. See St. 2020, c. 65, § 3.7
On December 14, 2020, the landlord filed a no-fault summary
process action based on a thirty-day notice to quit, seeking to
evict the tenant. The tenant filed an answer and counterclaims,
which as relevant here, asserted that the landlord violated the
water use statute and which specifically sought both possession
and money damages.8 Prior to the hearing, but after the tenant
served her answer, the landlord, through counsel, sent two
checks to the tenant and the tenant's attorney as reimbursement
for the water charges and any damages that may have flowed from
the alleged violation. The record contains two checks payable
to the tenant (one sent to her; the other sent to her attorney),
accompanied by cover letters from the landlord's attorney,
totaling $3,615. The first letter explained that the check for
$2,850 represented two times the amount the tenant paid for
7 The temporary moratorium on nonessential evictions and
foreclosures expired on October 17, 2020. See Wells Fargo Bank,
N.A. v. Sutton, 103 Mass. App. Ct. 148, 152 (2023).
8 The tenant checked paragraphs numbered 67, 68, and 71 on a
preprinted "Answer Form" that was completed with the assistance
of counsel. Paragraphs numbered 67 and 68 requested possession
and money damages, respectively. The paragraph numbered 71,
entitled "The Court Should Allow Me to Stay in My Home,"
requested that the judge apply § 8A and allow the tenant to
remain in the home either because the money owed to her on her
counterclaims was greater than the amount of rent owed to the
landlord or because she should be given the opportunity to pay
any amount owed to the landlord within seven days.
5
water and sewer; the second letter explained that the check for
$765 represented payment for any "potential water and sewer
damages."9 The letter also noted that the total amount
"return[ed was] equal to three times a month's rent."10 The
record does not establish whether the tenant deposited or
otherwise cashed the checks.
At the start of the hearing, the judge narrowed the
disputed issues to the tenant's counterclaim for possession and
request for a stay of the eviction. The judge heard argument
from each attorney. Through counsel, the landlord agreed that
she violated the water use statute, but argued that the tenant's
counterclaim was moot or waived because she tendered payment to
the tenant and therefore cured the violation prior to the
hearing. The tenant's attorney said that "[i]t appears that my
9 The landlord also returned the tenant's security deposit
plus interest notwithstanding that the tenant remained in the
property. This is not an issue on appeal.
10The landlord's reference to three months' rent and the
tenant's late request for attorney's fees suggest that the
landlord may have viewed the tenant's claim as one under G. L.
c. 186, § 14, which provides for actual damages or three months'
rent, whichever is greater, and attorney's fees for wrongful
acts by a landlord, including "transfer[ring] the responsibility
for payment for any utility services to the occupant without his
[or her] knowledge or consent." We need not, and do not, decide
whether the landlord's understanding of the tenant's claim is
correct because, as noted below, the tenant herself never
specified her theory of how the landlord violated the water use
statute, or whether that violation gave rise to a claim under
G. L. c. 186, § 14.
6
client has been made whole, . . . there's an offer of
settlement, but it doesn't mean it was accepted for
consideration." He argued that the tenant did not accept the
tender and there was no mutual agreement to settle her
counterclaims, specifically her defense to possession under
§ 8A. Upon further questioning from the judge, the landlord's
attorney acknowledged that there was no correspondence or other
writing to show that the parties agreed to "full settlement" of
the case.
At this point in the hearing, the judge said that he was
taking the arguments on the tenant's counterclaim for possession
under advisement and that the hearing would "transition to a
[G. L. c.] 239, [§] 9 request for a stay." The parties were
then sworn in and testified solely on the question of whether a
stay of the eviction should issue, were the landlord to be
granted possession. In a subsequent written order, the judge
found that the landlord's tender of damages fully resolved the
tenant's counterclaim under the water use statute, which
therefore "[could] not be used to trigger a defense to
possession under G. L. c. 239, § 8A," but granted a stay of the
eviction until a date certain. The judge denied the tenant's
subsequent motion to stay, and judgment of possession for the
landlord entered on August 30, 2021. The tenant filed a timely
notice of appeal from the judgment.
7
On October 27, 2021, the landlord filed a second notice to
quit and thereafter, a second no-fault summary process action.
Over the landlord's objection, the judge stayed the second
summary process action pending disposition of the tenant's
appeal of this case. On April 28, 2022, the landlord filed a
petition pursuant to G. L. c. 231, § 118, with the single
justice of this court seeking interlocutory relief from the stay
of the second summary process action. The single justice denied
the petition.
Discussion. This appeal presents issues of statutory
construction, which we review de novo. See Boss v. Leverett,
484 Mass. 553, 556 (2020). More specifically, we must consider
the interplay between two statutes in the context of a no-fault
eviction: the water use statute and § 8A, the latter of which
provides tenants with a time-limited defense against no-fault
evictions in circumstances where the tenant proves that a
landlord did not meet the landlord's legal obligations.11 Here,
11As relevant here, G. L. c. 239, § 8A, provides as
follows:
"In any action under this chapter to recover possession of
any premises rented or leased for dwelling purposes,
brought pursuant to a notice to quit for nonpayment of
rent, or where the tenancy has been terminated without
fault of the tenant or occupant, the tenant or occupant
shall be entitled to raise, by defense or counterclaim, any
claim against the plaintiff relating to or arising out of
such property, rental, tenancy, or occupancy for breach of
8
the tenant has not claimed a breach of the warranty of
habitability as a defense to the eviction, and she did not
withhold rent; she claims only a violation of the water use
statute as a defense to a no-fault eviction.12
Section 8A "was originally enacted to provide a defense
against eviction to a tenant who was not paying all or part of
the rent due to uninhabitable premises." Davis v. Comerford,
483 Mass. 164, 171 (2019). Over time, the Legislature amended
the statute "to increase the availability of counterclaims to
warranty, for a breach of any material provision of the
rental agreement, or for a violation of any other law.
. . .
"There shall be no recovery of possession under this
chapter if the amount found by the court to be due the
landlord equals or is less than the amount found to be due
the tenant or occupant by reason of any counterclaim or
defense under this section. If the amount found to be due
the landlord exceeds the amount found to be due the tenant
or occupant, there shall be no recovery of possession if
the tenant or occupant, within one week after having
received written notice from the court of the balance due,
pays to the clerk the balance due the landlord, together
with interest and costs of suit, less any credit due the
tenant or occupant for funds already paid by him to the
clerk under this section. In such event, no judgment shall
enter until after the expiration of the time for such
payment and the tenant has failed to make such payment."
12Section 8A includes a provision, referred to as the rent
withholding statute, which generally permits a tenant to
withhold rent when a landlord fails to maintain the premises in
a habitable condition if the landlord has knowledge of the
violation. That provision of the statute is not at issue in
this appeal.
9
tenants." Meikle v. Nurse, 474 Mass. 207, 213 (2016). Section
8A now permits a tenant to raise "[a]ny and all counterclaims"
relating to the tenancy "to offset the rent" (citation omitted).
Davis, supra at 171, 172 n.16. This is not without limitations.
A counterclaim or defense under § 8A must not only relate to or
arise out of a tenancy, but it must also be based on a breach of
warranty, a breach of any material provision of the rental
agreement, or a "violation of any other law." See Meikle, supra
at 212. We examine each of these requirements in turn.
We conclude, and the parties agree, that the water use
statute relates to a tenancy within the meaning of § 8A, as a
landlord is required to supply sufficient water for the ordinary
needs of the tenant. See 105 Code Mass. Regs. § 410.180
(2005).13 See also Berman & Sons, Inc. v. Jefferson, 379 Mass.
196, 202 n.11 (1979) (landlord on notice it must supply adequate
hot water to tenant). General Laws c. 186, § 22, in broad
terms, regulates the circumstances under which a landlord may
charge a tenant for the use of water. Among other requirements,
if a landlord chooses to have a tenant pay for water, the
statute requires landlords to install submeters and water
conservation devices on all faucets, showerheads, and toilets.
13See 105 Code Mass. Regs. § 410.130(A) (2023) for the
current version of this regulation.
10
This is not required if the tenant is not responsible for
payment of the water and sewer expenses of the leased premises.
We also conclude, and the parties agree, that a violation
of the water use statute is a violation of "any other law"
within the meaning of § 8A. See Meikle, 474 Mass. at 212. This
is so because G. L. c. 186, § 22 (m), provides that if a
landlord overcharges a tenant, or violates the State sanitary
code, "the tenant shall have all rights and remedies provided
under [the] law . . . including, but not limited to, the rights
and remedies provided under chapters 111, 186[,] and 239." One
of the rights and remedies under G. L. c. 239 is the ability to
raise as a counterclaim and defense to possession a "violation
of any other law" under § 8A. Thus, where a landlord fails to
install submeters or water conservation devices as required by
the water use statute, the resulting "overcharge" to the tenant
can be the basis of a defense to eviction under § 8A.
This does not end the analysis because § 8A requires that a
judge make certain factual findings regarding the respective
amounts owed to the parties in order to determine whether a
tenant is entitled to retain possession of the leased premises.
If the judge finds that the amount due to the tenant equals or
exceeds the amount due to the landlord, the landlord cannot
recover possession. See G. L. c. 239, § 8A, fifth par. See
also Davis, 483 Mass. at 171, citing G. L. c. 239, § 8A, first
11
par. (§ 8A "provides a [tenant] with a defense against a
landlord's suit for possession based on . . . no-fault
termination where the tenant has damages from counterclaims that
equal or exceed the landlord's damages"). In addition, even if
"the amount found to be due the landlord exceeds the amount
found to be due the tenant," G. L. c. 239, § 8A, fifth par., the
tenant can retain possession if, within seven days, the tenant
pays the differential, together with interest and costs of suit,
to the clerk. See Morse v. Ortiz-Vazquez, 99 Mass. App. Ct.
474, 475 (2021). In this way, the statute creates an incentive
for landlords to comply with their obligations under the law,
while providing tenants the opportunity to "cure," that is to
retain possession of the premises if the landlord is made
financially whole. See id.; Boston Hous. Auth. v. Hemingway,
363 Mass. 184, 193-194 (1973).
Having set out the elements of a § 8A counterclaim, we turn
to the specifics of this case. Although the tenant did not
identify the specific provision or provisions of the water use
statute that she claimed the landlord violated (nor does she
identify it on appeal), the landlord (who conceded the fact of a
violation through counsel) states in her brief that the only way
in which she violated the water use statute was by failing to
install water conservation devices and nonetheless charging the
12
tenant for water. See G. L. c. 186, § 22 (c).14 Similarly, in
her pretrial memorandum, the landlord asserted that her only
violation was her failure to "install the energy saving devices
as required by the statute." Thus, for purposes of this
decision, we will assume, without deciding, that the landlord
violated the water use statute by failing to properly install
water conservation devices.
The question for the judge (and for us on appeal) then
becomes what impact that violation of the water use statute has
on the tenant's claim for possession. The answer to that
question depends on the findings required by § 8A, fifth par.,
regarding the amounts owed on each side of the relationship.
A landlord is precluded from recovering possession "if the
amount found by the court to be due the landlord equals or is
less than the amount found to be due the tenant or occupant by
reason of any counterclaim or defense under this section."
G. L. c. 239, § 8A, fifth par. The landlord argues that because
she tendered full payment to the tenant under any theory of
damages, "there was no 'amount' that the [judge] could find 'to
be due the tenant'" on her counterclaim and therefore, upon
tender of the damages to the tenant, the tenant's § 8A defense
to possession was moot. The landlord also argues that the
14 See also G. L. c. 186, § 22 (t); 105 Code Mass. Regs.
§ 410.130(C)(2) (2023).
13
tenant's acceptance of the payments without a reservation of
rights resolved the tenant's counterclaim in full. The tenant
counters that there is no evidence that she accepted the
payments, and that, even if the tender would have "made [her]
whole" monetarily, there was no "mutual agreement to settle her
counterclaim."
Evidence was required to permit the judge to resolve these
fact-based questions, and to make appropriate findings. But
certain critical findings were not made, presumably because the
judge heard arguments of counsel on this issue and therefore
there was no evidentiary record. The judge could not, on this
record, make the necessary findings regarding the amount of the
tenant's damages resulting from the water use statute violation
or the relationship of that amount to the amount tendered by the
landlord. It therefore follows that he could not determine
whether the amount owed by the landlord equaled or exceeded the
amount owed by the tenant (although everyone agreed the amount
owed by the tenant was zero). Furthermore, the record did not
permit the judge to determine whether the tenant intended to
release or waive her counterclaim in its entirety by accepting
the landlord's tender.15 This is particularly important because
15While proceeding based on arguments of counsel is usually
an expedient way to adjudicate a busy summary process session
where many litigants are self-represented, especially where some
of the issues do not appear to be in dispute, the procedure is
14
a settlement agreement must include all material terms and
reflect the parties' mutual intent to be bound by it. See
Situation Mgt. Sys., Inc. v. Malouf, Inc., 430 Mass. 875, 878
(2000) ("It is axiomatic that to create an enforceable contract,
there must be agreement between the parties on the material
terms of that contract, and the parties must have a present
intention to be bound by that agreement"). Cf. Community
Bldrs., Inc. v. Indian Motocycle Assocs., Inc., 44 Mass. App.
Ct. 537, 548 (1998) (when material facts are not in dispute,
intent is question of law). Finally, there was no evidence to
help the judge determine whether, as the landlord claimed (and
continues to claim), the tenant cashed the checks or, as the
tenant now claims, she merely held them in a safe.
The judge apparently concluded that such findings were not
necessary because, given counsel's representation that the
tenant had been "made whole," the tenant's counterclaim was
moot. This was error because the judge failed to recognize that
the tenant's counterclaim carried two potential forms of relief
at the time it was asserted: money damages and a defense to
possession under § 8A. Although the tenant's acknowledgement
not ideal where, as here, there are important factual issues
that need to be resolved. See Mahoney v. Mahoney, 65 Mass. App.
Ct. 537, 540-541 (2006) (under certain circumstances judge may
properly rule without evidentiary hearing, but typically in
cases where material facts are not in dispute).
15
that she had subsequently been made financially whole arguably
reflected that her claim for damages was moot, it did not moot
her claim for possession. This is because, as we have set out
above, § 8A permits the tenant to retain possession if the
amount she is owed by the landlord is greater or equal to any
amount owed to the landlord. Here, this must have been the case
because the tenant owed nothing to the landlord, and the
landlord owed either nothing or some amount of money to the
tenant. And, in any event, as described above, even if the
amount the tenant owed the landlord exceeds the amount owed by
the landlord to the tenant, the tenant has a seven-day period in
which to cure the deficiency and retain possession.
The landlord's tender therefore did not preclude the tenant
from asserting a § 8A defense to possession based on the
landlord's water use statute violation. The tenant should have
been given the opportunity to prove her defense. The relevant
measure of her damages then would have been what she was owed on
the counterclaim as proven, either through evidence adduced at
trial or by stipulation. It bears mentioning that even if a
landlord stipulates to the amount of the tenant's damages,
whether with or without a physical tender of money, such a
stipulation alone does not resolve the tenant's claim for
possession; rather, the stipulated sum will establish the amount
owed to the tenant for purposes of determining whether the
16
tenant retains (or must cure any deficiency to retain)
possession. Thus, that the landlord here physically tendered
the money to the tenant did not moot that part of the tenant's
counterclaim that sought possession. This is true even if the
amount of the landlord's tender equaled the amount of the
tenant's monetary damages (or possibly exceeded it). Cf. Lynn
v. Murrell, 489 Mass. 579, 582 (2022) (party no longer has
personal stake in case where court can order "no further
effective relief" [quotation omitted]).16
To conclude otherwise would run afoul of the plain language
of § 8A. The Legislature did not provide a cure provision for
landlords as it did for tenants, and thus a tenant's § 8A
defense is not precluded by a landlord's unilateral tender of
damages subsequent to the filing of a counterclaim for
possession. This is so because "[w]e do not read into [a]
statute a provision which the Legislature did not see fit to put
16For similar reasons, the judge could not have resolved
the case based on a judicial admission, as posited by Justice
Meade in dissent. See post at (Meade, J., dissenting).
The tenant argued both in her pretrial memorandum and at the
hearing, that the landlord's tender was no bar to the tenant's
raising the water use statute violation as a defense to
possession under § 8A. The tenant plainly did not "cause[] the
judge to understand" that the claim for possession was "waived
or abandoned." Dalton v. Post Publ. Co., 328 Mass. 595, 599
(1952). To the contrary, the judge recognized that whether the
case would "be adjudicated under [§] 8A" would depend on how he
ruled on the tenant's argument that the claim for possession was
still a live issue.
17
there, nor add words that the Legislature had an option to, but
chose not to include" (citation omitted). Massachusetts
Insurers Insolvency Fund v. Smith, 458 Mass. 561, 567 (2010).
See Boehm v. Premier Ins. Co., 446 Mass. 689, 691 (2006)
(Legislature presumed to know preexisting law). In fact, by
reading into the statute a landlord's unilateral right to cure
after the filing of a summary process complaint, we would be
undermining the Legislature's efforts to strengthen a tenant's
right to avoid eviction by a landlord in violation of the
housing-related statutes. Landlords could simply buy themselves
free of the consequences of their failure to follow the law by
offering the money due their tenants, at least the tenants who
become aware of their rights and defend or advance a
counterclaim to their evictions.
To be clear, we are not suggesting that the landlord here
acted with bad intent, as opposed to making (and then trying to
cure) an honest mistake. But § 8A's mandate applies to all
landlords, including those less scrupulous than the landlord
here appears to have been. Take, for example, the more typical
case arising in a rent withholding situation. As mentioned,
§ 8A authorizes a tenant to withhold rent when a landlord fails
to maintain the property in habitable condition. See Davis, 483
Mass. at 171; Boston Hous. Auth., 363 Mass. at 193. If a
landlord, with knowledge of the conditions, fails to make the
18
necessary repairs and instead brings an eviction action seeking
to terminate the lease early based on nonpayment of rent, the
tenant would be entitled to retain possession if she can prove a
breach of the warranty of habitability or a related defense or
counterclaim. This is the "defensive remedy" that the
Legislature provided to tenants by enacting § 8A. Boston Hous.
Auth., 363 Mass. at 193. Allowing landlords to unilaterally
moot that remedy by simply tendering the amount of damages owed
for the breach, after the landlord filed a summary process
action, would eviscerate the "original purpose of § 8A" -- "to
grant[] the tenant the right to withhold rent in order to aid
effective enforcement of State Sanitary Code regulations."
Davis, supra, quoting Boston Hous. Auth., supra.While the dissenting opinions assert that § 8A works an
inequity to the landlord in this particular case, none of them
explain how we can reach a contrary result without undermining
the purpose of the statute in future cases. A tenant in a rent
withholding case can agree that a landlord's tender has made her
whole for her monetary damages while still preserving a claim
under § 8A to stay in the premises for the remainder of her
lease. This is consistent with the Legislature's intent in
enacting § 8A and with the uncontroversial notion that a
settlement of one claim is not a settlement of all claims. To
the extent that the dissenting justices advocate for a different
19
rule in the no-fault context, that is a question for the
Legislature, which has seen fit to expressly include no-fault
evictions within the scope of § 8A. See Adoption of Daphne, 484
Mass. 421, 424 (2020), quoting Harvard Crimson, Inc. v.
President & Fellows of Harvard College, 445 Mass. 745, 749
(2006) ("Courts must ascertain the intent of a statute from all
its parts and from the subject matter to which it relates, and
must interpret the statute so as to render the legislation
effective, consonant with sound reason and common sense").
Nor is there merit to the view of the dissenting justices
that § 8A does not provide a defense to possession where the
tenant is owed no amount of money because of a tender by the
landlord. This is another way of saying that once a landlord
commences a summary process action, the landlord can moot a
tenant's claim to possession by tendering money, as that would
contravene the basic purpose of § 8A. It is also not true that
the tenant must prove that she is owed an amount greater than
that owed to the landlord. See post at (Meade, J.,
dissenting). Again, § 8A permits the tenant to retain
possession if there is no net money owed to either party and,
where the tenant owes money, she can still retain possession
upon payment of the difference within seven days. Indeed, this
would be the situation anytime a tenant raises a § 8A claim by
defense, rather than by counterclaim, because a defense "cannot
20
provide [an] affirmative recovery."17 HSBC Bank USA, N.A. v.
Morris, 490 Mass. 322, 330 n.17 (2022). The word "defense" in
§ 8A has meaning; it is not superfluous. See Casa Loma, Inc. v.
Alcoholic Beverages Control Comm'n, 377 Mass. 231, 234 (1979)
("It is a common tenet of statutory construction that, wherever
possible, no provision of a legislative enactment should be
treated as superfluous").
For conditions-based claims such as breach of warranty, it
is § 8A itself that makes the claim a defense to possession and
whether the tenant retains possession depends on the accounting
contemplated by § 8A, fifth par. See Davis, 483 Mass. at 173
n.18 ("A breach of the warranty of habitability is not a defense
to eviction; it is a claim in the nature of abatement or
damages" [citation omitted]). Thus, as amicus Volunteer Lawyers
Project correctly observes, the inclusion of "defense" in § 8A
demonstrates that a tenant can retain possession even if there
is no net amount of money owed to her.18
17For this reason, where a tenant raises a § 8A claim by
defense, there would be no amount of damages for a landlord to
tender. The position of the dissenting justices would thus
create the perverse result that a landlord would be able to moot
a § 8A claim by tendering damages, but only where the tenant
exercised her right to assert the claim by counterclaim.
18According to the amicus brief, tenants commonly raise
only defenses under § 8A because counterclaims (but not
defenses) are waived if not included in a timely answer. See
Morse, 99 Mass. App. Ct. at 481. Section 8A expressly allows
21
Therefore, where, after the filing of a summary process
action, a landlord tenders payment without obtaining a clear
release or waiver from the tenant, a judge must still adjudicate
the tenant's counterclaim for possession under § 8A.19 However,
"a tenant who retains possession does not enjoy that right in
perpetuity. The statute does not impose an obligatory tenancy
on the landlord." Meikle, 474 Mass. at 214. Rather, "the
tenant's right to retain possession [is] a time-limited
equitable remedy for the particular conduct underlying the
tenant's defense or counterclaim." Id. In the case of a no-
fault eviction involving a tenancy at will, if the tenant
retains possession due to a violation, "[n]othing in the statute
prevents the landlord from bringing a second summary process
action for possession after he or she has remedied the
violation," once a judgment has entered in the first case. Id.20
tenants to raise their claims "by defense or counterclaim."
G. L. c. 239, § 8A, first par.
19The doctrine of waiver is disfavored in the context of
landlord-tenant disputes. See Morse, 99 Mass. App. Ct. at 485
n.25.
20Justice Ditkoff notes that in the second summary process
action, the tenant has raised retaliation as a defense for the
tenant's prevailing on her § 8A defense in the first action.
See post at (Ditkoff, J., dissenting). It is difficult
to see how that retaliation defense would be successful,
however, given the pronouncement in Meikle, 474 Mass. at 214,
that the Legislature intended § 8A to be a "time-limited" remedy
and that a landlord in a no-fault eviction action is entitled to
bring a second action once she has remedied the original
22
To sum up, in future proceedings involving no-fault
evictions or evictions for nonpayment of rent, if a tenant
raises a defense or counterclaim within the meaning of § 8A, the
judge must first determine whether the landlord is liable on the
defense or counterclaim. If the judge so finds, or the landlord
concedes liability, the judge must then determine the respective
amounts due to each party. A landlord's tender of damages after
commencement of a summary process action will not moot the
tenant's claim for possession, absent a clear release or waiver
of that claim by the tenant. Once the judge determines the
amount that each party is owed, the judge shall then perform the
accounting contemplated by § 8A, fifth par. If the tenant
proves her defense or counterclaim and is owed more than the
amount determined to be owed to the landlord (or the amount she
is owed equals what is owed to the landlord), the tenant is
entitled to retain possession. If the tenant proves her defense
or counterclaim but is owed less than the amount determined to
be owed to the landlord, the tenant will have seven days from
receipt of written notice thereof to pay the balance to the
clerk (cure) and if she does cure, the tenant is entitled to
retain possession; if the tenant does not cure, the landlord is
violation. In any event, the hypothetical possibility that a
tenant might raise a retaliation defense does not permit us to
depart from Meikle or disregard the language and purpose of
§ 8A.
23
entitled to possession.21 If the tenant retains possession under
§ 8A, the landlord may bring a subsequent summary process
action, although if the landlord has not yet remedied the
violation underlying the tenant's successful defense or
counterclaim, the tenant may again raise that violation through
a defense or counterclaim in the subsequent action.
Conclusion. Accordingly, we vacate the judgment. Where a
case has been resolved prematurely on procedural grounds, we
typically remand for further proceedings. Here, on the tenant's
claim for money damages, a remand is necessary to allow the
judge to enter factual findings on the amount of those damages,
as the trial record (and the appellate record) is bereft of the
necessary evidence on that question. And, because the landlord
claims that the tenant cashed the checks and the tenant claims
that the checks are in a safe, the judge must determine whether
or not the tenant was in fact compensated for her damages.22
On the tenant's claim for possession, under the unusual
circumstances presented where the tenant, who was entitled only
21We also recognize that "[n]othing in the statute prevents
the landlord from bringing a second summary process action for
possession after [the landlord] has remedied the violation of
the security deposit statute. Also, even where the tenant
agrees to pay the amount due the landlord to exercise the right
to possession, the landlord may thereafter commence a summary
process action." Meikle, 474 Mass. at 214.
22We note that the checks were drawn in 2021 and the record
does not indicate whether they are currently negotiable.
24
to a time-limited remedy of possession, has in fact retained
possession during the time this appeal was pending, the judge
may immediately on remand, with the landlord's agreement, issue
a partial judgment in the tenant's favor for possession, and
nothing herein shall preclude the judge from dissolving the stay
of the second summary process case so that the second action may
proceed as soon as judgment for possession is entered in this
case.23 See Meikle, 474 Mass. at 214. This approach is
consistent with the Uniform Summary Process Rules which intend
for these proceedings to be "just, speedy, and inexpensive."
Cambridge St. Realty, LLC. v. Stewart, 481 Mass. 121, 133 n.12
(2018), quoting Rule 1 of the Uniform Summary Process Rules
(1980). The judge shall also endeavor to make the findings
described above expeditiously, and thereafter shall enter a new
judgment on damages consistent with this opinion.24
23Justice Ditkoff observes that, were the landlord to
prevail in the second action, the tenant could retain possession
even longer by appealing from that judgment. See post
at (Ditkoff, J., dissenting). But the disposition we
reach is consistent with the process contemplated by Meikle, 474
Mass. at 214, which we are of course bound to follow. Also, if
the tenant files such an appeal, the landlord could move to
expedite, in which event the unusual procedural history of this
case would bear on whether the motion should be allowed. See
Ott v. Boston Edison Co., 413 Mass. 680, 684 (1992) ("Our
appellate system has the capacity to move rapidly when
circumstances warrant . . ."). See also Rules 3 and 5 of the
Uniform Summary Process Rules (2021).
24While there was some discussion at oral argument as to
whether notice to the landlord is required under § 8A, second
25
So ordered.
par., in a no-fault eviction, that issue was not raised in the
Housing Court or briefed on appeal and is therefore not properly
before us. Justice Englander disagrees, invoking the principle
that we can affirm on any ground apparent in the record. But
that principle has limits, including that the ground apparent in
the record must "support[] the result reached in the lower
court." Gabbidon v. King, 414 Mass. 685, 686 (1993). The judge
did not resolve the tenant's § 8A defense "on the ground that it
was not proved at trial." Post at (Englander, J.,
dissenting). The tenant did not have the opportunity to prove
her defense at trial because the judge concluded that the tender
precluded her from doing so. Assuming the counterclaim here was
"based on any allegation concerning the condition of the
premises or the services or equipment provided therein," G. L.
c. 239, § 8A, second par. -- rather than on unlawfully charging
the tenant for water when (permissibly and lawfully) no
conservation devices were installed, see G. L. c. 186, § 22 (c)
-- and further assuming the knowledge requirement applied, even
though the tenant here was never in arrears in her rent, based
on the way that the judge framed the issues at the hearing,
there was no opportunity for the tenant to demonstrate the
landlord's knowledge. We are unaware of any authority that
would allow us to take a claim that was disposed of by a judge
on procedural grounds (here, mootness) and resolve it on the
merits on appeal, without an appropriate evidentiary record that
the premises lacked the required conservation devices. It is
particularly unwise to do so here, where the issue was not
briefed on appeal and involves a novel question of statutory
interpretation.
MEADE, J. (dissenting, with whom Neyman, Ditkoff, Singh,
Englander, Walsh, Brennan, and Hodgens, JJ., join). Cassandra
Ferreira (Ferreira or landlord) just wants to live in her own
home. She had rented it to Laural Charland (tenant), and later
wished to regain possession. In a no-fault summary process
action, the tenant asserted a counterclaim alleging a violation
of the water use statute. See G. L. c. 186, § 22. The landlord
realized her mistake and, prior to trial,1 paid the tenant not
just the amount owed for the water and sewer damages, but double
that amount, which was equal to more than three times the
tenant's monthly rent. While not quite devolving to the level
of Charles Dickens's Bleak House, this case could easily be
described as Kafkaesque. The majority concludes that even
though counsel for the tenant admitted that the tenant had been
made whole (and then some), she gets to remain in the home, and
the only solution for the landlord is more litigation. As I
cannot agree, I respectfully dissent.
The issue in this appeal from a Housing Court judgment
granting the landlord possession of her home in Ludlow is
whether the landlord's tender and the tenant's acceptance of
compensation for the tenant's counterclaim under G. L. c. 186,
§ 22, precluded the tenant from asserting G. L. c. 239, § 8A
1 For simplicity's sake, I use the word "trial" even if the
matter was adjudicated after a hearing.
2
(§ 8A), as a defense at trial. A Housing Court judge concluded
that they do because the landlord's tenders "were knowingly
accepted by the tenants without any reservation of rights." The
only tenant to appeal, Laural Charland, claims error, arguing
that the landlord's tenders did not settle her counterclaim and
the judge misinterpreted § 8A. I disagree.
We analyze issues of statutory construction de novo. See
Meikle v. Nurse, 474 Mass. 207, 209 (2016). We do so "according
to the intent of the Legislature ascertained from all its words
construed by the ordinary and approved usage of the language,
considered in connection with the cause of its enactment, the
mischief or imperfection to be remedied and the main object to
be accomplished" (citations omitted). Id. at 209-210. We
construe the statute "as written, in keeping with its plain
meaning so as to give effect to each word." Lawrence v.
Osuagwu, 57 Mass. App. Ct. 60, 63 (2003). At the same time, "we
will not adopt a literal construction of a statute if the
consequences of doing so are absurd or unreasonable, such that
it could not be what the Legislature intended." Meyer v. Veolia
Energy N. Am., 482 Mass. 208, 212 (2019), quoting Cianci v.
MacGrath, 481 Mass. 174, 178 (2019).
Section 8A, fifth par., precludes a landlord from
recovering possession "if the amount found by the court to be
due the landlord equals or is less than the amount found to be
3
due the tenant or occupant by reason of any counterclaim or
defense under this section." "[A] tenant may retain possession
only if two conditions are met: (1) the tenant prevails on a
counterclaim or defense brought 'under this section'; and (2)
the damages on that defense or counterclaim exceed the amount
due the landlord." Meikle, 474 Mass. at 211.
The tenant's contention that she may defeat a complaint for
possession merely by demonstrating the landlord's violation of
law is not supported by the statute. A tenant is entitled to
possession under § 8A "because her damages exceed[] those
recovered by [the landlord]" (emphasis added), Lawrence, 57
Mass. App. Ct. at 63, not regardless of whether they do. "The
statute does not impose an obligatory tenancy on the landlord."
Meikle, 474 Mass. at 214.
Contrary to the majority's belief, at least for the
purposes of this case, the record sufficiently established the
tenant's damages.2 More importantly, the record established that
the landlord, prior to trial, paid those damages.3 The majority
2 The landlord's attorney paid the tenant a total of $3,615
in two checks. The first check represented two times the amount
the tenants paid for water and sewer, and the second check
represented payment for any "potential water and sewer damages."
3 The tenant's claim for attorney's fees, raised for the
first time on appeal, is waived. See McLaughlin v. American
States Ins. Co., 90 Mass. App. Ct. 22, 33 n.17 (2016).
4
holds that this does not matter, but I believe that it does for
two reasons.
First, the tenant's claim under the water use statute is
moot. "[L]itigation is considered moot when the party who
claimed to be aggrieved ceases to have a personal stake in its
outcome." Blake v. Massachusetts Parole Bd., 369 Mass. 701, 703
(1976). "A party no longer has a personal stake in a case where
a court can order no further effective relief" (quotation and
citation omitted). Lynn v. Murrell, 489 Mass. 579, 582 (2022).
The sequence of events illustrates that has occurred here.
In March 2021, the landlord's attorney sent the tenant a
letter containing a personal check from the landlord labeled
"water + sewer return." According to the letter, the check
"represent[ed] two times the amount you paid for water and sewer
charges during your occupancy." In May, after receiving a
response from the tenant's limited assistance representation
attorney, see Morse v. Ortiz-Vazquez, 99 Mass. App. Ct. 474, 476
n.7 (2021), the landlord's attorney sent the tenant's attorney a
second letter containing a personal check from the landlord
labeled "additional water + sewer." That letter said the check
"represent[ed] a return of any potential water and sewer damages
under the law that would make the return equal to three times a
month's rent." Before trial, counsel for the tenant claimed
that these tenders did not settle the tenant's counterclaim even
5
though "[i]t appears that my client has been made whole,"
because § 8A "still provides for the tenant to be left with
possession." At the trial, no evidence was elicited on the
subject other than the checks and letters.
The majority takes issue with the legal effect of the
tenant's counsel's representation of the fact that the tenant
had been "made whole" prior to trial. Polishing off the
niceties of contract and settlement law, the majority claims
that the absence of a release, or a settlement agreement which
contains all the material terms and reflects the parties' mutual
intent to be bound by it, renders counsel's words without
effect. I disagree. While those absent components might
promote clarity in the future, we must evaluate what the judge
did here based on the information that was available to him at
the time, and not on what might have been. For me, what the
judge acted upon was a judicial admission, which "conclusively
determine[s] an issue [and] [it] relieve[s] the other party of
the necessity of presenting evidence on that issue" (citation
omitted). General Elec. Co. v. Board of Assessors of Lynn, 393
Mass. 591, 603 n.8 (1984). See Beaumont v. Segal, 362 Mass. 30,
32 (1972). See also Mass. G. Evid. § 611(g)(1) note (2023). In
fact, a judicial admission does not require an agreement between
the parties, and it may arise whenever "a party causes the judge
to understand that certain facts are admitted or that certain
6
issues are waived or abandoned." Dalton v. Post Publ. Co., 328
Mass. 595, 599 (1952). See Wood v. Roy Lapidus, Inc., 10 Mass.
App. Ct. 761, 765 (1980) ("a judicial admission is a proposition
of fact in the form of acts or declarations during the course of
judicial proceedings which conclusively determine an issue").
No more was required, and the judge was entitled to rely on
counsel's representation.4
Here, as the judge was entitled to conclude, the landlord
tendered all the damages asserted under G. L. c. 186, § 22, and
the tenant accepted those damages. Those findings are not
clearly erroneous. See Meikle, 474 Mass. at 208; Demoulas v.
Demoulas Super Mkts., Inc., 424 Mass. 501, 509 (1997). Contrast
Henry v. Bozzuto Mgt. Co., 98 Mass. App. Ct. 690, 697 (2020)
(tenant rejected tendered offer of settlement).5
Contrary to the majority opinion and the tenant's claim,
where the landlord has satisfied the tenant's claim, the tenant
cannot use that claim to trigger a defense to possession under
4 For the same reason, the majority's assertion that "the
tenant did not have the opportunity to prove her counterclaim at
trial," ante at , is meaningless, as the matter had been
settled. The judge was not required to take evidence on an
issue that no longer remained a controversy.
5 The tenant mistakenly relies on our decision in Henry,
which involved the security deposit statute, see G. L. c. 186,
§ 15B, not G. L. c. 239, § 8A, and where the tenants rejected
the landlord's settlement offers. See Henry, 98 Mass. App. Ct.
at 697.
7
§ 8A. In so concluding, I have not read something into the
statute that the Legislature did not see fit to include.
Rather, I have endeavored to construe the statute, in a
reasonable manner, so that it makes sense and reflects what the
Legislature enacted.
More specifically, under § 8A, a valid defense to a
landlord's claim of possession requires a finding by the judge
of some amount of money the landlord owes to the tenant, either
in an amount equal to what the tenant owes to the landlord or
greater than what the tenant owes to the landlord. G. L.
c. 239, § 8A, fifth par. In fact, § 8A, fifth par., states in
part, "[t]here shall be no recovery of possession under this
chapter if the amount found by the court to be due the landlord
equals or is less than the amount found to be due the tenant or
occupant by reason of any counterclaim or defense under this
section" (emphasis added). The Legislature's use of the above-
emphasized present tense phrases indicates an amount of money
that has, as of yet, not been paid to the tenant.
Here, the judge found that the landlord did not owe the
tenant any amount as the landlord had already paid the tenant
prior to trial. Having been compensated for her counterclaim
under G. L. c. 186, § 22, the tenant no longer had a personal
stake in the outcome, which rendered her claim moot. See Henry,
98 Mass. App. Ct. at 697-698, citing Joiner v. SVM Mgt., LLC,
8
2020 IL 124671 ¶¶ 44-46 ("'tender,' where defendant produces
entire amount owed and admits liability, eliminates any live
controversy and requires dismissal of plaintiff's claims"). Of
course, if the landlord had tendered an amount that did not
fully satisfy the tenant's claim, or if the tenant genuinely
disputed the amount of damages owed, the tenant would have had a
valid counterclaim under § 8A and could retain possession at
least until the counterclaim was adjudicated.
The majority claims that the case is not moot because even
though the landlord tendered the money to the tenant, that fact
"did not moot that part of the tenant's counterclaim that sought
possession." Ante at . However, that assertion begs the
very question this case presents. By its explicit terms, § 8A
does not create a free-floating right to claim possession.
Rather, the tenant's claim for possession, i.e., her defense
against eviction, was contingent upon (in this case) proof of
the water use statute violation and proof that the tenant was
due an amount greater than that due the landlord. See G. L.
c. 239, § 8A. Once the landlord settled the water use statute
violation,6 the tenant's legal claim to possession no longer
6 The majority's illustration of its concern relative to a
rent withholding case sheds no light on the present case. In
that circumstance, the tenant may very well have right to
possession under a lease once the rent dispute is settled. But
this case involves a water use statute violation (which was
settled) in the context of a no-fault eviction, and no time
9
existed. Indeed, there was no finding of any amount due to the
tenant because there was no amount due.
The second reason why it matters that the landlord paid the
damages prior to trial is that we should encourage settlements
to promote judicial economy and not perpetuate needless
litigation. Indeed, the Legislature enacted § 8A to encourage
settlements and to avoid litigation. See Wolfberg v. Hunter,
385 Mass. 390, 398-399 (1982). This promotes the rights of both
tenants and landlords. See id. Despite this, the majority
supports its reading of § 8A by claiming that if the Legislature
had intended to permit landlords to cure claimed violations,
then "[l]andlords could simply buy themselves free of the
consequences of their failure to follow the law by offering the
money due their tenants, at least the tenants who become aware
of their rights and defend or advance a counterclaim to their
evictions." Ante at . But the majority from LaMancha
tilts at windmills.7
Ferreira is not a professional landlord, and the record
fails to reflect that anything nefarious occurred here. After
our Commonwealth's COVID-19 eviction moratorium ended, the
remained on the tenancy at will. In that circumstance, the
tenant had no right to remain once her case was settled.
7 M. de Cervantes, Don Quixote (P. A. Motteaux trans.,
Wordsworth Editions, 1997).
10
landlord served a no-fault notice to quit to terminate the
tenant's tenancy at will because she wanted to live in her home
again. The tenant has been made whole after being compensated
for her water use claim. But that good deed will not go
unpunished. Without enduring yet another summary process
action, I believe Ferreira should get to live in her own home.
Because the majority's unreasonable construction of § 8A means
that is not going to happen, see Meyer, 482 Mass. at 212(statute should not be construed in manner that is "absurd or
unreasonable"), I respectfully dissent.
DITKOFF, J. (dissenting, with whom Meade, Neyman, Singh,
Englander, Walsh, Brennan, and Hodgens, JJ., join). Cassandra
Ferreira lived in the subject property for over three years.
When she decided to move in with her boyfriend in 2016, she
rented the property to the tenants for less than her carrying
costs. Her relationship fell victim to the stresses of the
pandemic, however, so she left her boyfriend and informed the
tenants in July 2020 that she needed the property for herself.
For the same reason, her ballet studio ceased to be profitable,
and she was in financial straits. She sent the tenants a notice
to quit on October 20, 2020, three days after the Massachusetts
pandemic eviction moratorium ended, see Wells Fargo Bank, N.A.
v. Sutton, 103 Mass. App. Ct. 148, 152 (2023), terminating the
tenancy effective December 3, 2020.
When the tenants refused to leave, Ferreira became
homeless, moving from couch to couch in the houses of family or
friends. Mostly, she stays on a couch in the unheated basement
of her parents' home. She suffers from depression and anxiety,
both of which have been exacerbated by her living situation.
She also is being treated for a medical condition and her doctor
opined that "[i]t will be medically necessary for [Ferreira] to
have a stable living situation in order to have a successful
recovery." That medical recommendation has not been followed.
2
The legal issue before us is, actually, fairly simple. The
statute states that the landlord may not recover possession if
the landlord's financial recovery "equals or is less than the
amount found to be due the tenant or occupant by reason of any
counterclaim or defense under this section" (emphasis added).
G. L. c. 239, § 8A, fifth par. Similarly, the landlord may not
recover possession if the landowner's financial recovery
"exceeds the amount found to be due the tenant or occupant"
(emphasis added), and the tenants promptly pay the balance.
G. L. c. 239, § 8A, fifth par. Either way, the statute requires
that there be an "amount found to be due the tenant." See
Meikle v. Nurse, 474 Mass. 207, 209 (2016) (court found that
$1,304.61 was due to tenant). "If the statutory language is
clear and unambiguous, it is 'conclusive as to legislative
intent.'" Patel v. 7-Eleven, Inc., 489 Mass. 356, 362 (2022),
quoting Monell v. Boston Pads, LLC, 471 Mass. 566, 575 (2015).
Accord Miekle, supra at 210.
Here, the judge did not find any amount to be due the
tenant challenging the eviction. He could not make such a
finding because the tenant never asked the judge to find any
amount due to her nor produced any evidence of what that amount
due would be.1 The tenant's ability to do so was not foreclosed
1 As if to underscore the point, no party or amicus has
briefed what the measure of damages would be for the violation
3
prematurely; rather, the tenant explicitly agreed to the judge's
proposal that the water use issue be decided on legal arguments
without the provision of evidence. This was because the tenant
had already stated in writing that Ferreira had reimbursed her
for all water charges, and the tenant affirmatively agreed at
trial that no amount was due to her.
That should be the end of the legal analysis. The tenant
and the Attorney General invite us to rewrite the statute to
excise "the amount found to be due" language and instead change
the statute to read, in the Attorney General's words, "where a
tenant prevails on a counterclaim and no net money is due to the
landlord, 'there shall be no recovery of possession,'"
regardless of whether there is an amount due to the tenant.
This is well beyond our scope of authority as judges, and that
is enough to reject it. See Dinkins v. Massachusetts Parole
Bd., 486 Mass. 605, 613 (2021), quoting Commonwealth v.
Newberry, 483 Mass. 186, 195 (2019) ("[W]e may not rewrite the
. . . statute to contain language the Legislature did not see
fit to include"). But I fail to see why we would want to do
this, even if it were within our judicial authority.
here -- failure to install water conservation devices, G. L.
c. 186, § 22 (c). Is it the amount of the water charges? A
multiple of the water charges? The amount the water charges
would have been less if Ferreira had installed the water
conservation devices? We have no idea, because everybody agrees
that nothing is due to the tenant here.
4
The tenant and the Attorney General assure us that there is
nothing to worry about, because "a landlord can file a new
summary process action quite immediately after judgment is
entered in the first summary process action." See Meikle, 474
Mass. at 214 ("Nothing in the statute prevents the landlord from
bringing a second summary process action for possession after he
or she has remedied the violation"). File, yes, but obtain
possession, no.
Ferreira filed a new summary process action approximately
four months after judgment was entered in the first summary
process action here. The tenant pleaded the defense of
retaliation, asserting that she "is entitled to a presumption of
retaliation because Plaintiff caused service of the Notice to
Quit and filed the instant action within six months of
Ms. Charland's filing of the notice of appeal." The tenant then
successfully argued to the Housing Court that "[i]t would be
inconsistent with the intent of G.L. c. 239, §8A and with
general principles of justice and equity to allow the Plaintiff
to subvert the Defendant's appeal and to evict her on a no-fault
basis simply by commencing a second summary process action."2
Ferreira asked this court for assistance, and a single justice
2 Lest I be accused of glossing over the pendency of the
current appeal, the tenant disclaimed at oral argument any
belief that the pendency of the current appeal was necessary for
this argument.
5
denied relief and left Ferreira without the remedy of a second
summary process action.
As we know from the existing stay of the second summary
process action, the second summary process action will likely
remain stayed while the appeal from the judgment on remand is
decided (expedited or not). Even when (or if) that second
summary process action resumes (or a third is initiated), the
tenant enjoys the obvious defense that the new summary process
action was retaliation for appealing the first summary process
action. Under G. L. c. 239, § 2A, the tenant enjoys a
rebuttable presumption of unlawful retaliation that can be
defeated only by "clear and convincing evidence." See Youghal,
LLC v. Entwistle, 484 Mass. 1019, 1023-1024 (2020). Even if
Ferreira eventually prevails against this defense, she will
remain homeless on a couch in an unheated basement unable to
obtain possession while the appeal of that second summary
process judgment is pending.
At some point, Ferreira may well just give up and accept
her judicially-imposed plight. Lest I be accused of melodrama,
amicus Volunteer Lawyers Project tells us that this occurs "not
infrequently," as a landlord "simply changes its analysis of the
costs and benefits of eviction." Apparently, for amicus, this
is a feature, not a bug, of the tenant's proposed interpretation
of the statute.
6
Finally, the Attorney General suggests that this rewriting
of the statute is necessary to address "the Commonwealth's
current rental housing crisis and significant shortage . . . of
affordable rental units." Ferreira is not proposing to leave
the property empty, however; she merely wants to end her
homelessness and live there. Between Ferreira and the tenant,
this is truly a zero-sum game.
But, in the larger sense, the Attorney General has it
backwards. Ferreira certainly wishes she had left the property
vacant when she moved in with her boyfriend. In the (admittedly
unlikely) event that she recovers possession, there is no chance
she will ever rent it out again even if she subsequently vacates
it. More important, our decision adds to the steady judicial
drumbeat warning every small residential landowner that,
whatever you do, do not rent out your property. There are many
reasons for the housing crisis in Massachusetts, but we would do
well to acknowledge that our landlord-tenant jurisprudence is
one of them.
I respectfully dissent.
ENGLANDER, J. (dissenting, with whom Meade, Neyman, Singh,
Ditkoff, Walsh, Brennan, and Hodgens, JJ., join). I join the
dissents of both Justice Meade and Justice Ditkoff. The result
the majority reaches today is both inequitable and unsupported
by any facts shown at trial, and hence the judgment granting
possession to the landlord should not be vacated. I write
separately, however, because the majority's opinion discusses
and resolves important legal issues regarding the raising of
defenses and counterclaims under G. L. c. 239, § 8A (§ 8A), but
in doing so fails to account for context -- a so-called "no-
fault" summary process action. The result is that the majority
appears to endorse a legal scheme for defenses or counterclaims
in such cases that does not require proof that the landlord had
advance knowledge (i.e., notice) of the condition or violation
that forms the basis for the tenant's defenses. The
knowledge/notice requirement is particularly pertinent in this
case, because here there is no suggestion in the record that the
tenant gave advance notice (or that the landlord "knew") of a
violation of the water use statute, G. L. c. 186, § 22, before
the tenant raised it as a defense to the summary process action.
In a footnote at the end of its opinion, the majority
attempts to dismiss the lack of knowledge/notice issue on
several grounds, including that it is "not properly before us."
I disagree. This is an appeal from a judgment that rejected the
2
tenant's § 8A defense on the ground that it was not proved at
trial.1 We can affirm on any ground supported by the record,
Gabbidon v. King, 414 Mass. 685, 686 (1993), and here, it is
important to address § 8A's knowledge/notice requirement for two
reasons, which I discuss in more detail below: (1) the
knowledge/notice requirement is an integral component of § 8A,
yet the majority's opinion seems to suggest that the requirement
does not even apply in no-fault summary process actions, and (2)
there is no evidence that the landlord had advance knowledge in
this case, and in those circumstances, I do not believe the
tenant can prevail on her defense.
1. The structure of § 8A. Looking at the structure of
§ 8A, the first paragraph establishes the tenant's right to
raise defenses or counterclaims "for breach of warranty, for
breach of any material provision of the rental agreement, or for
a violation of any other law." This ability to raise defenses
to a claim for possession applies in no-fault actions as well as
1 The majority contends that the decision below rested on a
"procedural ground," and that the tenant was not "given the
opportunity to prove her defense." Ante at . To the
contrary, I read the record, and the judge's order, as deciding
the case on the merits -- after hearing from the tenant's
counsel, the judge found that the tenant could not prove the
element of damages, because the landlord's payments "satisfied
and resolved the tenants' claim." Particularly where the
majority relies entirely on argument of counsel for the tenant's
proof of the alleged violation of law, I cannot see a principled
basis for the majority's suggestion that we should not consider
the evidence as to the other elements of the tenant's defense.
3
to nonpayment situations -- it applies to actions "brought
pursuant to a notice to quit for nonpayment of rent, or where
the tenancy has been terminated without fault of the tenant or
occupant." G. L. c. 239, § 8A, first par.
But although the first paragraph of § 8A expressly refers
to no-fault summary process actions, it is evident that the
remaining paragraphs of § 8A were not written with such actions
in mind. Rather, the remaining paragraphs assume the context is
a claim for possession against a tenant who is not paying (or is
withholding) the rent. See Bank of Am., N.A. v. Rosa, 466 Mass.
613, 619 (2013) (§ 8A's "legislative history suggests that it
was intended to provide a defensive remedy [rent withholding]").
In that context the tenant has a possessory, leasehold interest
in the property, which would continue if they paid the rent and
otherwise complied with the lease. This is to be distinguished
from a no-fault summary process action (for example, where the
lease has expired), in which the tenant has no claim to an
ongoing possessory interest in the property, but rather was
terminated without allegation that the tenant owed any rent.
Take the fifth paragraph of § 8A, for example, which the
majority considers at length. The fifth paragraph assumes that
the landlord has sued the tenant for unpaid rent, and then
provides various outcomes in the event that the tenant proves a
defense that the landlord violated a relevant law. The majority
4
highlights the following provision, which states that the tenant
may retain possession: "if the amount found by the court to be
due the landlord equals or is less than the amount found to be
due the tenant or occupant by reason of any counterclaim or
defense under this section." G. L. c. 239, § 8A, fifth par.
However, the above quoted language has little relevance to a
standard no-fault summary process action. In such actions, the
landlord will not have sued for unpaid rent. Accordingly, in
such an action the amount due to the landlord will be zero
(unless there is a separate claim for unpaid rent or use or
occupancy), and zero will always be at least "equal[]" to the
amount due to the tenant "by reason of any counterclaim or
defense," even if the amount due to the tenant is also zero.
Leaving aside the valid points made by Justices Meade and
Ditkoff regarding the lack of findings in this case, it seems to
me that in a no-fault summary process action, we should not be
concerning ourselves much with the fifth paragraph. Instead,
the question is, are there any other provisions in § 8A that
limit the efficacy of the tenant's defenses to possession?
That brings us to the knowledge/notice provision of the
second paragraph. It states:
"Whenever any counterclaim or claim of defense under this
section is based on any allegation concerning the condition
of the premises or the services or equipment provided
therein, the tenant or occupant shall not be entitled to
relief under this section unless: (1) the owner or his
5
agents, servants, or employees, or the person to whom the
tenant or occupant customarily paid his rent knew of such
conditions before the tenant or occupant was in arrears in
his rent . . . " (emphasis added).
The above provision is an important component of the
statutory scheme; a tenant or occupant "shall not be entitled to
relief under this section unless" the owner or his agents "knew
of such conditions before the tenant or occupant was in arrears
in his rent."2 And the provision makes eminent sense; a tenant
has a right to withhold rent and/or remain on the premises if
the landlord is providing premises that violate the law, but the
tenant must notify the landlord (or the landlord must know) of
the violation first. The object of the rule is to have the
landlord remedy the condition or the services or equipment
provided; the object is not (as the majority suggests) to give
the tenant an "entitle[ment]" to possession. The case law is in
accord. In Jablonski v. Casey, 64 Mass. App. Ct. 744 (2005),
the tenant filed a § 8A counterclaim for breaches of the
warranty of habitability. This court explained that for a
tenant to have a defense to possession under § 8A, "[t]he
2 The violation alleged here, relating to charging the
tenant for water, undoubtedly concerns the "condition of the
premises or the services or equipment provided therein." G. L.
c. 239, § 8A, second par. The water use statute, G. L. c. 186,
§ 22, includes the requirement that a property have water
conservation devices before a landlord may charge a tenant for
water, and the tenant's defense was that she was charged for
water although no such equipment was installed.
6
landlord . . . must be notified of any [violative] condition
before the tenant is allowed to withhold her rent." Id. at 749.
We accordingly held that that the tenant could not retain
possession under § 8A because the landlord "did not have notice
of the complained of conditions until . . . some two months into
[the tenant's] rent arrearage and after she had received a
notice to quit." Id.3
The next question is, how does the second paragraph apply
in the context of a no-fault summary process action? In its
footnote 12 and again in its final footnote, the majority
adverts to the fact that the second paragraph states that the
landlord must have knowledge "before the tenant or occupant was
in arrears in his rent," and that in this case "the tenant . . .
was never in arrears on her rent." Put differently, the
majority seems to be suggesting that because in no-fault summary
process actions there is not necessarily an allegation that the
tenant failed to pay rent, the second paragraph's
knowledge/notice requirement does not apply in "no-fault"
3 There is nothing to the contrary in Meikle v. Nurse, 474
Mass. 207 (2016). While Meikle addressed a no-fault summary
process action, the opinion dealt primarily with a threshold
question of what defenses are available under the language of
the first paragraph of § 8A. Meikle does not mention or address
the knowledge/notice requirement of paragraph two, perhaps
because the defense asserted in Meikle (a security deposit
violation) did not have to do with a condition of the premises
or the services or equipment therein.
7
summary process cases, and thus is not a limitation on the
tenant's ability to raise a § 8A defense to retain possession.
But that is not what the second paragraph says. Under a
plain reading of the second paragraph, if as here the tenant has
raised a defense based upon "the services or equipment provided"
to the premises, then the tenant "shall not be entitled to
relief . . . unless" the landlord had knowledge of the claimed
violation before the tenant was in arrears. The defenses of
§ 8A are affirmative defenses (or counterclaims), on which the
tenant has the burden of proof. See Smith v. Hill, 232 Mass.
188, 191 (1919) (burden of proof on affirmative defense lies
with "the parties alleging it"). The tenant thus had to show
compliance with the second paragraph in order to get any relief.
The majority's suggestion to the contrary is incorrect as a
matter of plain language.
2. The tenant did not prove knowledge or notice. The
tenant did not prove that the landlord had knowledge or notice
in this case, and thus failed to establish a right to relief.
There is no indication that the landlord knew that there was any
issue with the provision of water to the premises, or any issue
with the equipment for that service, or knew of any violation of
G. L. c. 186, § 22. Because no notice was given to the
landlord, the landlord was not provided an opportunity to cure -
- that is, "to remedy the condition[]," Boston Hous. Auth. v.
8
Hemingway, 363 Mass. 184, 201 (1973) -- prior to the defense
being raised. The landlord sent a notice to quit, and the
tenant did not raise the issue. Instead, the tenant first
raised the issue after the summary process action had commenced.
It is not consistent with the language of the statute, or the
statutory scheme, to allow the tenant to retain possession under
these circumstances.
A tenant might argue against the above plain language
reading of the second paragraph of § 8A by noting that it could
lead to a tenant in a no-fault case having no defense (because
the tenant had never been in arrears), even where the tenant had
provided notice and the offending condition had not been cured.
But while that may be true, the fix is to read the requirements
of the second paragraph to apply equally to no-fault and
nonpayment summary process actions (thus requiring
knowledge/notice before a defense can be viable); it is not to
construe the second paragraph to impose no limitation in no-
fault cases. The construction implied by the majority would be
contrary to the Legislature's intent, and quite anomalous, as it
would allow a tenant who has no possessory interest to remain in
a property indefinitely -- by refusing to quit the premises,
waiting until they are sued in a summary process action, and
then raising as a defense or counterclaim any violation of law
they can belatedly identify that relates to the property.
9
My colleagues have persuasively set forth why the judgment
of possession in this case should be affirmed. The failure of
the tenant to establish knowledge/notice is yet another ground
for doing so. I respectfully dissent.