Opinion
21-P-472
04-25-2022
S&B PROPERTY MANAGEMENT & another[1] v. BELLA MIRANDA. [2]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
The defendant, Bella Miranda, appeals from a judgment of the Housing Court that, among other things, granted summary process of possession to the plaintiffs, S&B Property Management and White Winter Realty (the landlords). On appeal, Miranda argues that the judge erred by rejecting her retaliation and implied warranty of habitability defenses and counterclaims. As discussed below we must vacate the portion of the judgment awarding possession to the landlords, because in light of the presumption of retaliation in G. L. c. 239, § 2A, Miranda established her defense based upon retaliation. While we otherwise affirm the judge's decision, we remand for further proceedings consistent with this decision.
Background.
Beginning in November of 2017, Edwin Hernandez rented a one-bedroom apartment in Haverhill that was owned and managed by the landlords. Hernandez, Miranda, and the couple's two children (collectively, the tenants) lived in the apartment.
Edwin Hernandez was also named as a defendant in the complaint. He is not a party to this appeal.
Prior to July of 2019, the tenants paid the monthly rent of $800 on time each month, but they failed to make their July 2019 payment. On August 19, 2019, Moshe Gazit, the landlords' property manager, approached Miranda in the hallway of the building and asked about the unpaid rent. In response, Miranda raised concerns about ongoing pest problems in the building. According to Miranda's testimony, she told Gazit of an infestation of cockroaches, an infestation of rodents, insufficient heat, and a leaky sink. Gazit requested that Miranda submit any complaints in writing.
On August 30, 2019, Miranda emailed Gazit and wrote that her apartment contained an "infestation of rodents, cockroaches, bed bugs etc." and asked that he "fix the bad conditions." Around this time, Miranda also reported the conditions in her apartment to the Board of Health. The Board of Health inspected the building on September 5, 2019. The following day, the Board of Health issued a report substantiating the complaint and ordering remediation of several conditions, including extermination of the entire building.
Six days after Miranda's emailed complaint to Gazit, and the same day as the Board of Health's inspection, the landlords served the tenants with a notice to quit, which stated that "[t]he reason for this notice is non-payment of rent."
On October 2, a request for a criminal complaint against Gazit was filed by the Board of Health. The landlords then served the tenants with a second notice to quit on October 4, 2019, which noted that the tenants were in arrears. The landlords also towed the tenants' car in October, which the tenants previously had parked on the property without incident.
The landlords filed a summary process complaint against the tenants on December 30, 2019. In their answer, the tenants asserted retaliation both as an affirmative defense pursuant to G. L. c. 239, § 2A, and as a counterclaim pursuant to G. L. c. 186, § 18. The tenants also asserted implied warranty of habitability and quiet enjoyment defenses and counterclaims.
At trial, Miranda testified to the numerous issues in the apartment, including the infestations of cockroaches and rodents, broken windows and light fixtures, and insufficient heat. Miranda testified that she had complained about these issues to the building's maintenance man prior to her conversation with Gazit. Miranda did not identify when the tenants complained to the maintenance man, stating only that it occurred "continuously" sometime prior to August 2019. She testified that the maintenance man put down glue traps, but the traps did not adequately address the infestation issues. Miranda also testified that the notices to quit and the towing of the tenants' vehicle were "retaliatory actions that have been taken against [the tenants] due to the fact that we called the Board of Health and with[e]Id. the rent."
The landlords' evidence did not directly address the retaliation allegations raised by Miranda. Gazit initially testified to the effect that he issued the notices to quit "in response to the non-payment of rent." Following Miranda's testimony, Gazit testified as a rebuttal witness and stated that the lease prohibited parking on the premises without written consent, which he had not given to the tenants. He further testified that the tenants were "already behind in rent before they brought [his] attention to problems" in the apartment. Importantly, however, Gazit did not testify that he would have issued the notices to quit even if the tenants had not complained about the apartment. He did not testify to any regular practice as to when he would issue notices to quit. Nor did he deny that he had retaliatory motives.
Following the two-day trial, the Housing Court judge found that the tenants owed the landlords $3, 150 in unpaid rent and use and occupancy payments, and granted possession to the landlords. In doing so, the judge found that the landlords had rebutted the presumption of retaliation in G. L. c. 239, § 2A, through Gazit's testimony that he served the notices to quit because the tenants were behind on their rent. The judge also found that the tenants could not prevail on their warranty of habitability arguments, because the tenants did not show that the landlords had knowledge of the substandard conditions in the apartment while the tenants were still current on their rent. This appeal followed.
The parties stipulated that the tenants missed payments on four months of rent and that the tenants had paid an extra $50 in rent in June 2019.
Discussion.
1. Retaliation defense.
Miranda argues that the judge erred when she concluded that the landlords rebutted the presumption of retaliation. We agree.
General Laws c. 239, § 2A, establishes an affirmative defense of retaliation, which may be asserted in any summary process action. The statute furthermore establishes a rebuttable presumption that retaliation has occurred where the summary process action was initiated within six months of the tenant seeking to enforce federal, state, or local housing standards against the landlord. G. L. c. 239, § 2A. Although this presumption is rebuttable, it:
"may be rebutted only by clear and convincing evidence . . . that the plaintiff had sufficient independent justification for taking such action, and would have in fact taken such action, in the same manner and at the same time the action was taken, even if the tenant had not . . . made such report" (emphasis supplied).Id. Accordingly, to rebut the presumption a landlord must show, by clear and convincing evidence, not only that there was an independent justification to initiate summary process proceedings, but also that he or she would have initiated proceedings "in the same manner and at the same time" even if the tenant had not reported the conditions in the apartment. South Boston Elderly Residences, Inc. v. Moynahan, 91 Mass.App.Ct. 455, 468-469 (2017) (addressing identical language in G. L. c. 186, § 18) .
Here, there was insufficient evidence to rebut the presumption of retaliation in G. L. c. 239, § 2A. It is indisputable that the presumption applies, as the landlords issued the first notice to quit only six days after Miranda's email and the same day as the Board of Health inspection. The judge ruled the landlords rebutted the presumption because Gazit "testified credibly that the reason for service of the September notice . . . was that the tenants were behind [o]n their rent." But while nonpayment of rent is, of course, an independent justification to pursue summary process, see Youghal, LLC v. Entwistle, 484 Mass. 1019, 1024 (2020), here the judge made no findings as to the second statutory requirement -- that is, that the landlords would have pursued summary process "in the same manner and at the same time" absent the tenants' complaints about the conditions of the apartment.
And indeed, the landlords' evidence did not even address the "same time," "same manner" question. The only evidence as to the landlords' motivation was the statement on the notice to quit itself, and a single line of Gazit's testimony, in which he stated (in response to a leading question) that he had issued the notice to quit "in response to the non-payment of rent." This evidence does not constitute clear and convincing proof that he would have served the notice to quit at the same time and in the same manner. Gazit did not testify that he would have pursued eviction even if the tenants had not reported the apartment conditions. There was no evidence as to the landlords' ordinary practices with respect to pursuing evictions for nonpayment. Cf. Youghal, 484 Mass. at 1024 (citing evidence that the landlord "repeatedly had commenced summary process actions against one of the tenants when she previously had fallen behind in her rent"). Indeed, Gazit never testified that he did not have retaliatory motives.
Our decision in South Boston Elderly Residences is instructive. There the stated ground for the notice to quit was dangerous clutter in the apartment, but the notice to quit was not served until after the tenant complained about his apartment's condition, and the notice came many months after the landlord first raised issues regarding clutter. South Boston Elderly Residences, 91 Mass.App.Ct. at 4 69. We acknowledged that the clutter could have been a valid basis for issuing the notice to quit, but emphasized that to overcome the statutory presumption "there still would need to be clear and convincing evidence that the landlord in fact would have sent the notice to quit 'in the same manner and at the same time. . . regardless of [the tenant] reporting the moisture issues to ISD." Id. And we concluded, on the record evidence, that the landlord was "unable" to make a showing that it would have issued the notice when it did if the tenant had not complained. Id. The record in this case similarly cannot not support such a finding. See Jablonski v. demons, 60 Mass.App.Ct. 473, 477 (2004) ("the landlord failed to introduce any evidence on the issue of [his] motive for initiating the eviction action so quickly after the tenants engaged in their protected activity")
2. Retaliation counterclaim.
In addition to her retaliation defense, Miranda also brought a counterclaim for retaliation under G. L. c. 186, § 18. Miranda argues that the judge also erred by dismissing this counterclaim, but we do not agree, because in these circumstances the presumption of retaliation does not apply under G. L. c. 186, § 18. The lack of a presumption materially changes the burden of proof, and the evidentiary calculus, from those applicable under G. L. c. 239, § 2A.
Unlike G. L. c. 239, § 2A, discussed supra, G. L. c. 186, § 18, creates an affirmative right of action for retaliation. The statute uses language nearly identical to G. L. c. 239, § 2A, but with a critical difference -- the rebuttable presumption language in G. L. c. 186, § 18 does not apply to eviction proceedings based on the nonpayment of rent. Youghal, 484 Mass. at 1024.
In relevant part, the statute states that "[a]ny person . . . who threatens to or takes reprisals against any tenant of residential premises for the tenant's act of . . . reporting or complaining of such violation [of housing law or regulations] . . . in writing to the landlord or to the agent of the landlord . . . shall be liable for damages which shall not be less than one month's rent or more than three month's rent, or the actual damages sustained by the tenant, whichever is greater, and the costs of the suit, including a reasonable attorney's fee." G. L. c. 186, § 18.
"The receipt of any notice of termination of tenancy, except for nonpayment of rent . . . within six months after the tenant has . . . made such report or complaint . . . shall create a rebuttable presumption that such notice or other action is a reprisal against the tenant for engaging in such activities" (emphasis added).G. L. c. 186, § 18. Given that the parties stipulated that the tenants were behind on their rent, no presumption attaches to Miranda's counterclaim under this statute, and the landlords did not have the burden to provide rebuttal evidence as they did under G. L. c. 239, § 2A.
Accordingly, as to her counterclaim, Miranda had the burden to prove "by a preponderance of credible evidence, that 'one of the [landlords'] principal motives'" for the notices to quit was the tenants' complaints about the apartment. Scofield v. Berman & Sons, Inc., 393 Mass. 95, 114-115 (1984). Here, the judge found to the contrary, that the reason for the notice to quit was that "the tenants were behind [o]n their rent." We review the Housing Court judge's factual findings for clear error, and her legal conclusions de novo. Youghal, 484 Mass. at 1019-1020.
Given that no presumption of retaliation applies with respect to the counterclaim, Miranda's argument amounts to an argument that the judge's finding as to motive was clearly erroneous. On this record, we cannot so conclude. "A finding is clearly erroneous when there is no evidence to support it, or when, 'although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Adoption of Talik, 92 Mass.App.Ct. 367, 370 (2017), quoting Custody of Eleanor, 414 Mass. 795, 799 (1993). Although the record here is thin, the notice to quit itself did state that "[t]he reason for this notice is non-payment of rent." Gazit also testified --albeit briefly -- that he issued the notice to quit due to the tenants' nonpayment of rent. This evidence was not directly contradicted and was sufficient to support the judge's finding.
3. Warranty of habitability.
Finally, Miranda argues that the judge erred by dismissing her warranty of habitability defense, under G. L. c. 239, § 8A. In particular, she argues that the judge's finding that the landlords first received notice in August 2019 was clearly erroneous, because Miranda previously raised the substandard conditions in the apartment with the landlords' maintenance man. We disagree.
As noted, we defer to the Housing Court judge's findings of fact unless they are clearly erroneous. Youghal, 484 Mass. at 1019. To prevail on a claim or defense of implied warranty of habitability, a tenant must show that "the owner or his agents, servants, or employees, or the person to whom the tenant or occupant customarily paid his rent knew of [the offending] conditions before the tenant or occupant was in arrears" (emphasis supplied). G. L. c. 239, § 8A. Miranda's testimony indicates only that she complained to the maintenance man on an unspecified date prior to August 19, 2019, which is the date she spoke to Gazit. There is no testimony indicating that she spoke to the maintenance man prior to July 1, 2019, when the tenants first missed a rental payment. The judge found to the contrary, and on this record the finding was not clearly erroneous. The judge therefore did not err by dismissing Miranda's implied warranty of habitability claims.
As Miranda has demonstrated retaliation as a defense, but not as an affirmative counterclaim, the portion of the judgment awarding possession to the landlords is vacated and the matter is remanded for further proceedings regarding the proper remedy or disposition under the circumstances, consistent with this memorandum and order. The judgment is otherwise affirmed.
So ordered.
Sullivan, Henry & Englander, JJ.
The panelists are listed in order of seniority.