Ferreira v. Charland

103 Mass.App.Ct. 194

218 N.E.3d 61

Cassandra FERREIRA

v.Laural CHARLAND.¹

No. 22-P-300

Appeals Court of Massachusetts, Hampden.

Argued April 28, 2023

Decided September 5, 2023

Gabriel L. Fonseca, for the defendant.

Lawrence J. Farber, Amherst, for the plaintiff.

Andrea Joy Campbell, Attorney General, Alda Chan, Assistant Attorney General, & Sean P. Attwood, Special Assistant Attorney General, for the Attorney General, amicus curiae, submitted a brief.

Richard M.W. Bauer, Ilana B. Gelfman, Susan Hegel, Cambridge, Daniel Ordorica, & Joshua M. Daniels, for Volunteer Lawyers Project, amicus curiae, submitted a brief.

Present: En banc.²

BLAKE, J.

In this no-fault summary process action, the question on appeal is whether the landlord's tender of damages to the tenant³ for the landlord's violation of G. L. c. 186, § 22 (water use statute), after the landlord commenced summary process proceedings, precluded the tenant from asserting G. L. c. 239, § 8A ( § 8A ), as a defense to possession (as set forth in the tenant's counterclaim).⁴ A judge of the Housing Court answered the question "yes," reasoning that the landlord's tender was "knowingly accepted by the tenant without any reservation of rights." He entered judgment awarding Cassandra Ferreira (landlord) possession of the leased premises. Tenant Laural Charland (tenant) appeals, arguing that the landlord's tender of damages did not settle her counterclaim and that the judge misinterpreted § 8A. We conclude that a landlord's violation of the water use statute gives the tenant a potential defense to possession under § 8A. We also conclude that a landlord's tender of money damages to the tenant, after the landlord commenced summary process proceedings, does not moot the tenant's claim to possession, unless the tenant has clearly released the claim, because money damages are but one of two available remedies -- the other being the tenant's ability to remain in the property (possession) upon proof of a valid counterclaim or defense under § 8A. Here, because the tenant's § 8A counterclaim effectively was dismissed prematurely on grounds of mootness, the tenant did not have the opportunity to prove her counterclaim at trial. We therefore vacate the judgment, and remand for further proceedings consistent with this opinion.⁵

Background. We recite the facts upon which the parties agree, supplemented with uncontested facts from the record. In 2016, the tenant signed a lease for a single-family home that, since approximately 2013, had been the landlord's primary residence.⁶ The lease required the tenant to pay for utilities, including hot water and city water and sewer charges. In July 2020, the landlord notified the tenant that she needed to move back into her home but due to the Massachusetts moratorium on evictions, she could not serve the tenants with a notice to quit at that time. See St. 2020, c. 65, § 3.⁷

On December 14, 2020, the landlord filed a no-fault summary process action based on a thirty-day notice to quit, seeking to evict the tenant. The tenant filed an answer and counterclaims, which as relevant here, asserted that the landlord violated the water use statute and which specifically sought both possession and money damages.⁸ Prior to the hearing, but after the tenant served her answer, the landlord, through counsel, sent two checks to the tenant and the tenant's attorney as reimbursement for the water charges and any damages that may have flowed from the alleged violation. The record contains two checks payable to the tenant (one sent to her; the other sent to her attorney), accompanied by cover letters from the landlord's attorney, totaling $3,615. The first letter explained that the check for $2,850 represented two times the amount the tenant paid for water and sewer; the second letter explained that the check for $765 represented payment for any "potential water and sewer damages."⁹ The letter also noted that the total amount "return[ed was] equal to three times a month's rent."¹⁰ The record does not establish whether the tenant deposited or otherwise cashed the checks.

At the start of the hearing, the judge narrowed the disputed issues to the tenant's counterclaim for possession and request for a stay of the eviction. The judge heard argument from each attorney. Through counsel, the landlord agreed that she violated the water use statute, but argued that the tenant's counterclaim was moot or waived because she tendered payment to the tenant and therefore cured the violation prior to the hearing. The tenant's attorney said that "[i]t appears that my client has been made whole, ... there's an offer of settlement, but it doesn't mean it was accepted for consideration." He argued that the tenant did not accept the tender and there was no mutual agreement to settle her counterclaims, specifically her defense to possession under § 8A. Upon further questioning from the judge, the landlord's attorney acknowledged that there was no correspondence or other writing to show that the parties agreed to "full settlement" of the case.

At this point in the hearing, the judge said that he was taking the arguments on the tenant's counterclaim for possession under advisement and that the hearing would "transition to a [G. L. c.] 239, [§] 9 request for a stay." The parties were then sworn in and testified solely on the question of whether a stay of the eviction should issue, were the landlord to be granted possession. In a subsequent written order, the judge found that the landlord's tender of damages fully resolved the tenant's counterclaim under the water use statute, which therefore "[could] not be used to trigger a defense to possession under G. L. c. 239, § 8A," but granted a stay of the eviction until a date certain. The judge denied the tenant's subsequent motion to stay, and judgment of possession for the landlord entered on August 30, 2021. The tenant filed a timely notice of appeal from the judgment.

On October 27, 2021, the landlord filed a second notice to quit and thereafter, a second no-fault summary process action. Over the landlord's objection, the judge stayed the second summary process action pending disposition of the tenant's appeal of this case. On April 28, 2022, the landlord filed a petition pursuant to G. L. c. 231, § 118, with the single justice of this court seeking interlocutory relief from the stay of the second summary process action. The single justice denied the petition.

Discussion. This appeal presents issues of statutory construction, which we review de novo. See Boss v. Leverett, 484 Mass. 553, 556, 142 N.E.3d 1113 (2020). More specifically, we must consider the interplay between two statutes in the context of a no-fault eviction: the water use statute and § 8A, the latter of which provides tenants with a time-limited defense against no-fault evictions in circumstances where the tenant proves that a landlord did not meet the landlord's legal obligations.¹¹ Here, the tenant has not claimed a breach of the warranty of habitability as a defense to the eviction, and she did not withhold rent; she claims only a violation of the water use statute as a defense to a no-fault eviction.¹²

Section 8A "was originally enacted to provide a defense against eviction to a tenant who was not paying all or part of the rent due to uninhabitable premises." Davis v. Comerford, 483 Mass. 164, 171, 137 N.E.3d 341 (2019). Over time, the Legislature amended the statute "to increase the availability of counterclaims to tenants." Meikle v. Nurse, 474 Mass. 207, 213, 49 N.E.3d 210 (2016). Section 8A now permits a tenant to raise "[a]ny and all counterclaims" relating to the tenancy "to offset the rent" (citation omitted). Davis, supra at 171, 172 n.16, 137 N.E.3d 341. This is not without limitations. A counterclaim or defense under § 8A must not only relate to or arise out of a tenancy, but it must also be based on a breach of warranty, a breach of any material provision of the rental agreement, or a "violation of any other law." See Meikle, supra at 212, 49 N.E.3d 210. We examine each of these requirements in turn.

We conclude, and the parties agree, that the water use statute relates to a tenancy within the meaning of § 8A, as a landlord is required to supply sufficient water for the ordinary needs of the tenant. See 105 Code Mass. Regs. § 410.180 (2005).¹³ See also Berman & Sons, Inc. v. Jefferson, 379 Mass. 196, 202 n.11, 396 N.E.2d 981 (1979) (landlord on notice it must supply adequate hot water to tenant). General Laws c. 186, § 22, in broad terms, regulates the circumstances under which a landlord may charge a tenant for the use of water. Among other requirements, if a landlord chooses to have a tenant pay for water, the statute requires landlords to install submeters and water conservation devices on all faucets, showerheads, and toilets. This is not required if the tenant is not responsible for payment of the water and sewer expenses of the leased premises.

We also conclude, and the parties agree, that a violation of the water use statute is a violation of "any other law" within the meaning of § 8A. See Meikle, 474 Mass. at 212, 49 N.E.3d 210. This is so because G. L. c. 186, § 22 (m ), provides that if a landlord overcharges a tenant, or violates the State sanitary code, "the tenant shall have all rights and remedies provided under [the] law ... including, but not limited to, the rights and remedies provided under chapters 111, 186[,] and 239." One of the rights and remedies under G. L. c. 239 is the ability to raise as a counterclaim and defense to possession a "violation of any other law" under § 8A. Thus, where a landlord fails to install submeters or water conservation devices as required by the water use statute, the resulting "overcharge" to the tenant can be the basis of a defense to eviction under § 8A.

This does not end the analysis because § 8A requires that a judge make certain factual findings regarding the respective amounts owed to the parties...