Opinion
No. 12–P–927.
2013-03-27
NORTHEASTERN UNIVERSITY v. Dean STEVENS & another.
By the Court (TRAINOR, KATZMANN & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a one-day bench trial, a Housing Court judge awarded possession of the disputed premises to the plaintiff, Northeastern University (Northeastern). The defendants, Dean Stevens and Douglas Stevens, now appeal. We affirm.
Discussion.
1. Sufficiency of the evidence. At trial, Northeastern presented sufficient evidence for the judge to issue a judgment for possession in its favor.
Northeastern is the owner of the building at 142 Hemenway Street where the disputed premises—unit 2 of the building—are located. At trial, Northeastern introduced in evidence a certified copy of its deed to the building. The Stevens family has occupied the premises continuously for more than fifty years pursuant to a tenancy at will. At trial, neither Northeastern nor the defendants presented evidence of a written lease between the parties. The defendants did not allege that they occupied the premises pursuant to a written lease. Accordingly, the judge correctly found that the defendants occupied the premises as tenants at will. See G.L. c. 183 § 3; Baldassare v. Crown Furniture Co., 349 Mass. 183, 193 (1965) (“the ‘oral lease,’ not shown to have been for any stated term, created at most a tenancy at will”).
On September 29, 2011, Northeastern commenced a no-fault termination of the tenancy at will pursuant to G.L. c. 186, § 12.
.General Laws c. 183, § 3, provides: “An estate or interest in land created without an instrument in writing signed by the grantor or by his attorney shall have the force and effect of an estate at will only, and no estate or interest in land shall be assigned, granted or surrendered unless by such writing or by operation of law .”
At this time, Northeastern served the defendants with a one-month notice to quit, which required that they vacate the premises at the end of the next rent cycle—October 31, 2011. Since they failed to vacate, Northeastern then began the present summary process action.
.General Laws c. 186, § 12, as amended by St.1973, c. 256, § 1, provides in relevant part: “Estates at will may be determined by either party by three months' notice in writing for that purpose given to the other party; and, if the rent reserved is payable at periods of less than three months, the time of such notice shall be sufficient if it is equal to the interval between the days of payment or thirty days, whichever is longer.”
The defendants raised two unmeritorious defenses to the summary process action: (1) retaliation, and (2) rent withholding. The judge properly found that neither defense was supported by law. To begin with, the defendants are not entitled to a presumption of retaliation because the last affirmative act that the defendants undertook to enforce their affordable housing agreement occurred more than a year before Northeastern served the notice to quit. See G.L. c. 186, § 18. See also Scofield v. Berman & Sons, Inc. 393 Mass. 95, 109–111 (1984). More specifically, the defendants took part in a meeting about the premises with a Northeastern representative and a Boston city councillor during the summer of 2010, and Northeastern did not serve the notice to quit until September 29, 2011. Therefore, in order to have prevailed on this claim, the defendants needed to affirmatively prove retaliation. Ibid. However, at trial, they failed to present any evidence, testimonial or otherwise, to support a claim of retaliation.
The rent-withholding defense is also unsupported by law. Rent withholding is a defense in a case where there is a claim for breach of the implied warranty of habitability. See Boston Hous. Authy. v. Hemingway, 363 Mass. 184, 198 (1973); Jablonski v. Casey, 64 Mass.App.Ct. 744, 746 (2005). However, in this summary process action, the defendants did not raise a claim for breach of the warranty of habitability, nor did Northeastern raise a claim for unpaid rent. Accordingly, rent withholding cannot serve as a defense.
In sum, the judge properly found that Northeastern established a legally sufficient case for possession and the defendants failed to establish any viable defense. Consequently, the judge properly awarded possession of the premises to Northeastern.
2. Appellate attorney's fees and costs. On appeal, Northeastern requests that this court award it attorney's fees for defending against this appeal and the appeal bond proceeding before the single justice of the Appeals Court.
Northeastern argues that the defendants were on notice that they were proceeding with an unmeritorious action. Northeastern points to the Housing Court judge's determination in her appeal bond order that “the defendants do not have a prayer of a chance of prevailing on [their] defenses.” A single justice of the Appeals Court similarly stated: “I discern that the defendants have failed to demonstrate that they have a defense that is not frivolous within the meaning of G.L. c. 239, § 5( e ).” Moreover, we note that in order to put the defendants on advance notice of its intention to seek attorney's fees if the defendants persisted in their appeal, Northeastern's counsel sent them a letter dated May 29, 2012, to which it attached three decisions pertaining to pro se defendants' obligations and the award of attorney's fees and costs.
“Appellate courts are authorized by statute to award double costs to an appellee in a civil case when the appeal is frivolous, immaterial, or intended for delay. See G.L. c. 211, § 10; G.L. c. 211A, § 15; Mass.R.A.P. 25.” Avery v. Steele, 414 Mass. 450, 455 (1993). “An appeal is frivolous ‘[w]hen the law is well settled [and] when there can be no reasonable expectation of a reversal.’ [Id. at 455].... We are hesitant to deem an appeal frivolous and grant sanctions except in egregious cases. See [ id ]. at 456, 461; Burger Chef Sys., Inc. v. Servfast of Brockton, Inc., 393 Mass. 287, 292, (1984).” Symmons v. O'Keeffe, 419 Mass. 288, 303 (1995). In this case, the pro se defendants knew or should have known that there was no reasonable likelihood of success in pursuing this appeal.
Pursuant to Mass.R.A.P. 25, as appearing in, 376 Mass. 949 (1979), Northeastern is awarded double costs and appellate counsel fees. Within fourteen days from the date of the entry of the rescript, Northeastern may file a petition for fees and costs in accordance with the procedure outlined in Fabre v. Walton, 441 Mass. 9, 10–11 (2004). The defendants shall have fourteen days thereafter to respond.
Judgment affirmed.