Opinion
No. 12–P–283.
2013-04-18
Dorothy SAFFAREWICH v. Stephen LAMONTAGNE & another.
By the Court (GRAHAM, GRAINGER & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendants, tenants Stephen Lamontagne and Susan Feaster, appeal from a judgment of the Northeast Housing Court awarding possession of their rental unit to the plaintiff, landlord Dorothy Saffarewich, and rejecting the tenants' defense and counterclaim of retaliatory eviction and their counterclaim of breach of the covenant of quiet enjoyment. For the following reasons, we affirm the judgment.
Background. The defendants had been renting their apartment from the plaintiff since September, 2001. The plaintiff was responsible for paying all water bills. The bills showed arrearages in excess of $13,000, since 2003.
By early 2010, the Newburyport water works began to deliver notices of intended “water shut off” for “non-payment of water bill” to the building, including the door of the defendants' unit. The defendants received four notices between January and March 31, 2011. In late March, 2011, they complained to the Newburyport department of public health and to the mayor's office. On May 20, 2011, the plaintiff forwarded to the defendants a thirty-day notice of termination of their tenancy at will, but the defendants did not leave the unit by the end of June. The plaintiff began a summary process action against the defendants in the Northeast Housing Court in July, 2011, approximately four months after the defendants had complained to Newburyport officials. By answer and counterclaim, the defendants alleged that the plaintiff was evicting them in retaliation for their complaints to city officials, within the meaning of both G.L. c. 186, § 18,
The cause of the magnitude of the bills is unclear. Witnesses from the Newburyport water works testified at trial that the metered water consumption in the residence was extraordinarily high.
and G.L. c. 239, § 2A,
In pertinent part, G.L. c. 186, § 18, as appearing in St.1978, c. 149, § 1, provides that
“[a]ny person or agent thereof who ... takes reprisals against any tenant of residential premises for the tenant's act of ... obtaining relief in any judicial ... action the purpose of which action is to obtain damages under, or otherwise enforce, any ... state ... law ... which has as its objective the regulation of residential premises ... 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.
“The receipt of any notice of termination of tenancy ... within six months after the tenant has ... obtained relief in such action ... shall create a rebuttable presumption that such notice ... is a reprisal against the tenant for engaging in such activities.”
and that the plaintiff had breached the covenant of quiet enjoyment within the meaning of G.L. c. 186, § 14.
Pursuant to G.L. c. 239, § 2A, which contains parallel language, such prohibited retaliatory conduct by the landlord is a defense to an action for summary process.
Final judgment entered in favor of the landlord upon all claims at the conclusion of a bench trial. 1. Retaliatory eviction. In order to rebut the statutory presumptions of reprisal, the landlord was required to demonstrate, by clear and convincing evidence, that “such action was not a reprisal against the tenant[s] and that [the landlord] 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 defendants had not complained to city officials. G.L. c. 186, § 18. See G.L. c. 239, § 2A. At trial, the plaintiff testified that she moved to evict the defendants because she intended to sell their unit. The landlord also testified that one of the defendants had in the past asked for a right of first refusal to purchase the unit.
.General Laws c. 186, § 14, as appearing in St.1973, c. 778, § 2, provides, in relevant part, that “any lessor or landlord who directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant” shall be punished by a fine or imprisonment and shall be subject to liability to the tenant for damages arising from the interference.
Retaliation is a factual matter hinging on the motive of the landlord. Brown v. Sewell, 14 Mass.App.Ct. 970, 970 (1982). The question of the landlord's motive is one of fact for the trial judge uniquely positioned to evaluate the demeanor, intent, and credibility of the parties. Ibid. On appeal, we give substantial deference to the judge's assessment of credibility and of the weight of clear and convincing evidence. See, e.g., Adoption of Peggy, 436 Mass. 690, 701–702 (2002). Here, no extraordinary circumstances would cause us to override the trial judge's finding that the landlord initiated the summary process action because she intended to sell the residential unit.
2. Breach of the implied covenant of quiet enjoyment.General Laws c. 186, § 14, requires a serious interference with the character and value of the tenancy. Doe v. New Bedford Hous. Authy., 417 Mass. 273, 285 (1994). As the trial judge observed, no such interference occurred because the plaintiff never permitted an actual shutoff of the water to the defendants. Furthermore, no decisional law under the statute allows indirect or consequential personal injury from fear of interference-such as the stress suffered from the shutoff notices here-to amount to an actionable interference with the covenant of quiet enjoyment. As a result, the claim fails as a matter of fact and a matter of law. The judge correctly concluded that there was no breach of the covenant of quiet enjoyment. Additionally, because these grounds furnished the tenants' only defense against eviction upon proper notice under a tenancy at will from month to month, the landlord was entitled to recovery of possession.
Conclusion. In sum, we conclude that clear and convincing proof supported the judge's determination that the plaintiff successfully rebutted the statutory presumption of reprisal, and that the judge correctly found no breach of the covenant of quiet enjoyment.
Judgment affirmed.