Opinion
15-P-70
02-18-2016
ELIJAH FISHELSON v. PAULA YOUNG.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Former tenant Paula Young appeals pro se from a Housing Court judgment entered in favor of landlord Elijah Fishelson on his complaint for possession, arguing error in the judge's denial of her request for a continuance, in his abatement order, and in his calculation of unpaid rent. We affirm.
Background. In 2007, Young and Fishelson signed a one-year lease for a single family dwelling (premises) in Swampscott (town). The lease required Fishelson to pay for all utilities, and it "automatically self-extend[ed] at the end of the initial and each successive lease term under the same terms and conditions as the initial Lease."
There was evidence that the lease was terminated and then reinstated effective December 14, 2013, with the parties "agree[ing] to be bound by the terms of the lease as if the termination had never occurred."
At various times from 2007 through May of 2014, defective conditions existed at the premises. On January 18, 2011, the premises failed inspection and Fishelson was ordered to "remove mold like substance at front storage." On April 19, 2011, the premises passed inspection. On March 24, 2014, the premises again failed inspection and Fishelson was ordered to "remove all mold like substance at front basement closet." On May 27, 2014, the premises passed inspection.
On June 12, 2014, Fishelson's attorney mailed a notice to quit to Young, advising her that Fishelson was terminating the tenancy, that she needed to leave the premises by August 1, and that Fishelson claimed unpaid rent in the amount of $1,174. Thereafter, Young complained to the town's health department about the premises. On August 8, 2014, Fishelson served a summary process summons and complaint claiming unpaid rent of $1,370. On August 13, 2014, the town inspected the premises and identified a mold problem in the basement. On August 18, 2014, a notice to quit was filed, and Young filed discovery requests the next day. This postponed the trial date to September 17, 2014. See Rule 7(b) of the Uniform Summary Process Rules (1993).
At trial, the judge denied Young's repeated requests to continue so that her attorney could be present. After considering evidence submitted by both parties, the judge found that although "the defects cited in the various inspection reports . . . through May 2014 constituted minor violations of the Sanitary Code," Young had not shown the effect such defects had on the tenancy. The violations thus did not constitute a breach of the implied warranty of habitability and Young was not entitled to relief under G. L. c. 239, § 8A. The judge also found, however, that the defects cited in the town's August 13, 2014, inspection report did constitute such a breach, and he abated Young's rent for the months of August and September of 2014 by twenty percent. Judgment for possession entered in favor of Fishelson, and judgment on Fishelson's claim for unpaid rent entered against Young in the amount of $758.36.
Discussion. Young sought to defeat Fishelson's claim for possession with evidence of defective conditions on the premises and that she was paying utilities in violation of the lease. See G. L. c. 239, § 8A, first par., as appearing in St. 1977, c. 963 (landlord may not regain possession if tenant establishes a "breach of warranty, . . . a breach of any material provision of the rental agreement, or . . . a violation of any other law"). She was entitled to relief if Fishelson "knew of [the] conditions before [Young] was in arrears in h[er] rent," if Fishelson could not show that the conditions were caused by Young or her family, and if Fishelson failed to establish that vacating the premises was required in order to remedy the conditions. G. L. c. 239, § 8A, second par., as appearing in St. 1977, c. 963.
Fishelson's argument, that Young lacks standing to appeal because her name was removed from the lease in April of 2014 and therefore she is not a party aggrieved, lacks merit. See G. L. c. 231, § 113; Rule 12 of the Uniform Summary Process Rules (2004). Young testified that the tenancy was transferred to her daughter and that all of her children still resided at the premises. Fishelson has always pursued this and other matters relating to the tenancy with Young; Young's children stand in privity with her as to her interest in the property, Sarvis v. Boston Safe Deposit & Trust Co., 47 Mass. App. Ct. 86, 99 (1999); and G. L. c. 239, § 8A, applies equally to tenants and occupants, Hodge v. Klug, 33 Mass. App. Ct. 746, 754 (1992). The judgment for money damages is against Young individually, and we think that she is sufficiently aggrieved to maintain this appeal. See, e.g., 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline, 461 Mass. 692, 700 (2012) (in G. L. c. 40A, § 17, actions, "'person aggrieved' is one who 'suffers some infringement of his legal rights'" [citation omitted]).
The judge properly concluded that Young was not entitled to relief, even though her payment of utilities violated the lease and 105 Code Mass. Regs. §§ 410.190, 410.201, and 410.354(A)(2) (2005), see Young v. Patukonis, 24 Mass. App. Ct. 907, 908-909 (1987), and even though he found that the existence of mold in August of 2014 violated the implied warranty of habitability. "Although G. L. c. 239, § 8A, . . . permits a tenant to withhold rent in such situations, it require[s] the tenant to give written notice to his landlord of his intention to do so." Boston Hous. Authy. v. Hemingway, 363 Mass. 184, 186 (1973). There is no evidence that Young gave Fishelson written notice of her intent to withhold rent due to her payment of utilities or to conditions on the premises, and Fishelson's rent log (which was introduced without objection) shows that Young already was in arrears in 2011 when mold was first detected in the basement, and in 2012 when she was paying utilities. Tenants are not entitled to relief "unless: (1) the owner . . . knew of such conditions before the tenant or occupant was in arrears in his rent," G. L. c. 239, § 8A, second par. (emphasis supplied), and there was no error.
Young argues that the rent log is inaccurate. However, she offered no evidence in support of her assertion that she made payments that are not reflected on the log, and she provided no additional evidence after the judge left open the record in order for her to do so. While Young testified that she had been paying utilities since 2007, the only evidence supporting her assertion is from 2012, and Young did not submit further proof on this issue. The judge, who had a "firsthand view of the presentation of evidence" and was "in the best position to judge the weight and credibility of the evidence," New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671, 675 (1977), apparently did not credit Young's testimony regarding her payment of rent and utilities, and we will not disturb his judgment, Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 510 (1997).
There are additional reasons why Young cannot prevail in her reliance upon § 8A, namely, the absence of evidence that the defective conditions were not caused by Young or her family or that they could be remedied without vacating the premises. Rubin v. Prescott, 362 Mass. 281, 289 (1972).
Nor was there error in the judge's abatement order and calculation of unpaid rent. While evidence of mold in the basement in August of 2014 supports an inference that the mold that existed in March of 2014 was not in fact remedied in May of 2014 when the house passed inspection, the judge did not make that inference and we "do not sit as triers of fact." Commonwealth v. Alphas, 430 Mass. 8, 21 (1999) (Greaney, J., concurring). The judge found no breach of the implied warranty of habitability before August of 2014; he had "broad discretion" to make that determination, and "[i]t does not appear [to us] that the judge abused his discretion in deciding that the" pre-August of 2014 code violations would "not be considered in determining the adjustment to which [Young] was entitled." McKenna v. Begin, 5 Mass. App. Ct. 304, 308 (1977). The judge's "account is plausible in light of the entire record," and we will not disturb it. Demoulas v. Demoulas Super Mkts., Inc., 410 Mass. 501, 510 (1997).
Finally, the judge did not abuse his discretion in denying Young's request for a continuance. See E.H. v. S.H., 59 Mass. App. Ct. 593, 597 (2003). Young's motion was neither in writing nor served upon Fishelson's attorney before trial, see Rule 6 of the Uniform Summary Process Rules (1993), but was made on the day of a trial that already had been postponed, three months after Young had received notice that Fishelson was terminating the tenancy. The summary process procedure is intended to "secure the just, speedy, and inexpensive determination of every summary process action," Rule 1 of the Uniform Summary Process Rules (1980), because "'time is of the essence' in eviction cases," Hodge v. Klug, 33 Mass. App. Ct. 746, 755 (1992) (citation omitted). We see no error in the judge's apparent conclusion that continuing the trial to allow for the presence of an attorney who had not filed an appearance would frustrate the "design" of the summary process rules, namely, "to bring the case to trial within a prescribed period." Id. at 756.
Judgment affirmed.
By the Court (Cypher, Wolohojian & Carhart, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 18, 2016.