Assessing your Case
Overview
There are roughly six questions you should ask of any case that comes your way:
1. Does 8A apply?
2. How much does the T owe?
a. (And do they have money saved?)
3. What claims do I have?
4. What evidence do I have to prove each claim?
5. What’s the likelihood of success on my claim(s)?
6. What are my damages?
The Questions
1. Does G.L. c. 239, § 8A apply?
a. (The Tenant Advocate’s Most Powerful Tool)
b. Three types of Housing cases.
c. If cause, NO.
i. Procedural defenses?
ii. Can LL prove breach(es)?
iii. De Minimis breach(es) / Waiver / Retaliation / Discrimination / Avoidance of Forfeiture?
iv. Disability and Reasonable Accommodation?
d. If nonpayment or no-cause, YES.
i. If T can prevail solely on conditions-related claims, must show:
1. LL had notice of conditions before T fell behind;
2. Conditions not caused by T;
3. Conditions can be fixed w/o T vacating; and
4. Premises NOT hotel, motel, or rooming house occupied for less than 3 months.
ii. If T can prevail on any non-condition related claim (e.g., security deposit), then no need to prove prerequisites above.
2. If 8A applies, can T either? - (How much does the T owe?)
a. Win, on a single (or more) 8A defense, more than owed; or
b. Win, on a single (or more) 8A defense, and ‘pay over’ balance to LL within 7 days?
i. This is especially powerful when T has properly withheld rent (i.e., “has all the money”).
c. *Or, can T simply win on a substantive defense (e.g., retaliation or discrimination)
d. Note that there are some LL attorneys who do not understand 8A. “My client just wants his property back.”
3. What claims do I have?
a. Bad Conditions
i. Warranty of Habitability (WOH)
1. Has there been a material breach of the WOH?
2. Hemingway, 363 Mass. 184 (1973) (establishes “material breach” standard for WOH)
3. Berman & Sons, 379 Mass. 196 (1979) (WOH is strict liability)
ii. Breach of Quiet Enjoyment (BQE)
1. c. 186, § 14
2. Allowing conditions of disrepair to exist
iii. 93A
1. 940 CMR 3.17(1) (A.G. Regs for LL/T)
b. Security Deposit and/or Last Month’s Rent (c. 186, § 15B)
i. “Big Three” Violations of SecDep 186, 15B(7).
1. Most common: fails to deposit in separate interest bearing MA bank beyond reach of creditors. (6)(a).
ii. Other SecDep
1. Failure to give Statement of Conditions. (2)(c).
2. Failure to pay interest. (3)(b).
iii. LMR – Failure to Pay Annual Interest
c. BQE Continued
i. Failure to furnish required services
ii. Directly/indirectly interfere w/ furnishing...
iii. Transfer utilities w/ no knowledge or consent
iv. Attempted eviction w/ no court action
v. Threats or assaults of person under LL control
vi. Includes emotional distress. Homesavers Case, 70 Mass.App.Ct. 453 (2007).
vii. Check the case law to see if some objectionable behavior by the LL constitutes a BQE.
d. 93A Continued
i. 940 CMR 3.17 – LL/T A.G. Regs
ii. T paying utilities w/o a written agreement.
e. Retaliation
i. Defense (G.L. c. 239, § 2A); Counterclaim (G.L. c. 186, § 18)
ii. LL cannot retaliate against T who engages in protected activity, such as: reporting bad conditions in writing to LL; reporting bad conditions to BoH.
iii. Rebuttable presumption of retaliation if action taken within 6 months of protected activity. Can only be overcome by “clear and convincting” evidence that LL “would have in fact taken such action, in the same manner and at the same time the action was taken” regardless of T’s protected activities.
f. Discrimination
4. What evidence do I have to prove each claim?
a. For conditions, do I have:
i. BoH Report(s)?
1. If not administratively appealed, LL cannot question existence of conditions from BoH report at trial. Lezberg, 27 Mass.App.Ct. 1158 (1989).
ii. Written notice?
iii. Photos?
iv. Oral testimony?
b. Has discovery happened?
c. Have I written a Motion to Compel Further Answers?
i. *First round of discovery almost always deficient.
ii. Look especially at SecDep interrogatory/docs.
5. What is the likelihood of success on my claim(s)?
a. If bench: Who’s my judge?
b. How believable and articulate are my witnesses?
i. How much practice does my client/witness need?
6. What are my damages?
a. WOH – percentage reduction off FMV (usually contract rent)
b. BQE – Whichever greater: treble rent or actual.
i. Attorney’s fees.
c. 93A
i. Actual damages or statutory ($25), whichever greater, plus attorney’s fees.
d. No duplicative damages for claims arising out of same conditions, only whichever theory provides most damages. Wolfberg v. Hunter, 385 Mass. 390 (1982).
e. Security Deposit
i. “Big Three”: treble deposit, plus attorney’s fees for 186, 15B(7).
ii. Return of Deposit
iii. Interest
f. LMR
i. Trebled interest, plus attorney’s fees.
g. Retaliation (substantive defense in own right – 239, 2A)
i. The greater of 1-3 months’ rent or actual damages, plus interest, costs, and attorney’s fees
h. Discrimination (substantive defense in own right – c. 151B)
i. Actual and punitive damages, attorney’s fees and costs
i. 93A Continued: If violation is knowing or willful, doubled or trebled actual damages, plus attorney’s fees and costs.