Opinion
No. 12–P–1198.
2013-04-17
Donald C. HUTCHINS v. E. Richard HUNT.
By the Court (KATZMANN MEADE & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a one-day bench trial, a Housing Court judge awarded possession of the disputed property to E. Richard Hunt (landlord). Donald C. Hutchins (tenant) now appeals. We affirm.
At trial, the judge found a prima facie case supporting the landlord's claim of nonpayment of rent. The judge found that the tenant lived in the landlord's property pursuant to a tenancy at will and paid a monthly rent of $1,500. Additionally, the judge found that the tenant owed the landlord $6,500 and that the tenant had received a notice to quit. The judge then conducted a trial on the tenant's counterclaims and affirmative defenses.
Discussion. 1. Counterclaims and affirmative defenses. At trial, the tenant raised the following two affirmative defenses and counterclaims: (1) breach of the warranty of habitability (G.L. c. 239, § 8A), and (2) interference with quiet enjoyment (G.L. c. 186, § 14). The trial judge found that the tenant failed to meet his burden in proving that the landlord violated the warranty of habitability or interfered with the tenant's quiet enjoyment. We review to determine whether the judge's findings of fact were clearly erroneous and whether, as a matter of law, the tenant was entitled to judgment in his favor on his counterclaims. See Wesson v. Leone Enterprises, Inc., 437 Mass. 708, 712–715 (2002); Jablonski v. Casey, 64 Mass.App.Ct. 744, 747–748 (2005). At trial, the tenant primarily focused his defense on a squirrel infestation of his property. With respect to this claim, the trial judge made the following findings of fact:
“Upon notice of the infestation of squirrels by e-mail from the Tenant on October 24, 2011, the Landlord called Braman Pest Elimination Specialists on October 26, 2011 to set up a time to have the premises inspected for the squirrel problem. The October 29th blizzard intervened with the set inspection date, which was then set for November 4th. However, on November 3rd, the Tenant left for out-of-state due to a death in his family, and the inspection did not occur then. On November 13, 2011, the Landlord requested of the Tenant through an e-mail a new inspection date. The Tenant responded with an e-mail stating that due to a car accident, he was not in a situation where the property could be inspected immediately. Finally, on November 18, 2011, the pest company was able to inspect and did find evidence of squirrels in the premises. The company treated and eradicated the problem by setting traps. The Company returned on December 5th, December 6th, and December 8th and were able to trap four squirrels. On December 12th, 2011, no further squirrels were trapped, and the Company left a note for the Tenant to contact the company if they had any further problem with squirrels. The Landlord received no further complaints from the Tenant about the squirrels.”
In considering a breach of the warranty of habitability, “[t]he existence of a material or substantial breach is a question of fact and must be determined in the circumstances and facts of each case.” Jablonski v. Casey, 64 Mass.App.Ct. at 746. “Factors ... aiding the court's determination of the materiality of an alleged breach ... include: (a) the seriousness of the claimed defects and their effect on the dwelling's habitability; (b) the length of time the defects persist; (c) whether the landlord ... received written or oral notice of the defects; (d) [whether] the residence could be made habitable within a reasonable time; and (e) whether the defects resulted from abnormal conduct or use by the tenant.” Ibid., quoting from Boston Hous. Authy. v. Hemingway, 363 Mass. 184, 200–201 (1973). In the case at bar, the trial judge properly found that the tenant's claim of breach of the warranty of habitability must fail because upon receiving notice of the defect, the landlord took immediate action to remedy the problem within a reasonable period of time.
Similarly, with respect to the tenant's claim as to breach of the covenant of quiet enjoyment, “[w]e have interpreted this obligation to mean that the covenant of quiet enjoyment protects a tenant from serious interference with her tenancy.” Jablonski v. Casey, 64 Mass.App.Ct. at 747–748, citing Doe v. New Bedford Hous. Authy., 417 Mass. 273, 285 (1994). “Generally, the landlord must have had notice of the condition interfering with the tenant's quiet enjoyment of the premises, and he must have at least acted negligently in not alleviating the condition.” Jablonski v. Casey, 64 Mass.App.Ct. at 748,citing A1– Ziab v. Mourgis, 424 Mass. 847, 850–851 (1997). As the landlord in this case did not act negligently upon receiving notice of the squirrel infestation, the trial judge properly found that he did not interfere with the tenant's quiet enjoyment of the property.
The trial judge also properly found that the additional alleged violations raised by the tenant, such as a cracked step and peeling paint, were de minimus and did not rise to the level of violation required for a breach of the warranty of habitability or interference with quiet enjoyment. See Boston Hous. Authy. v. Hemingway, 363 Mass. at 200–201 n.16 (“there may instances of isolated Code violations which may not warrant a decision that the premises are uninhabitable”).
Finally, the tenant raises a counterclaim that he is entitled to relocation expenses. The trial judge correctly found that “to the extent this issue was raised at trial, the Tenant has provided no legal authority for such an award, and this claim must be dismissed.” As such, this argument does not rise to the level of appellate argument as required by Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 119 (1975).
Judgment affirmed.