Affirmative Causes of Action

Have you considered all the possible affirmative causes of action for your housing complaint?

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  1. Breach of Warranty of Habitability

    2. 1. Breach of Warranty of Habitability

    Landlords must make sure that dwellings are kept fit for human occupation.  Tenants often claim a breach when the landlord fails to supply heat or hot water, when the dwelling is infested with vermin, or when there is some other type of persistent unsanitary condition in the home.  A landlord violates the Warranty of Habitability from the time he/she has knowledge of the conditions that may endanger or impair the health, safety or well-being of the Tenant.

    Yes No

  2. Interference with Quiet Enjoyment/Utilities

    3. 2. Interference with Quiet Enjoyment/Utilities

    When a landlord is required to supply utilities under a lease or under the law the landlord must provide those utilities.  If he fails to do so, a tenant may bring suit. 
    Some conditions in the apartment are so serious (such as no water or heat), that they may violate the right to Quiet Enjoyment, which means the right to be free from unreasonable interference with the use of your home (i.e., if Landlord constantly enters the apartment without proper or prior notice or fails to make repairs which result in the Tenant’s inability to use and enjoy the apartment). If the Landlord is in violation, the Tenant may sue for money damages, which is actual damages or 3 times the monthly rent, whichever is more. Landlords also must take care to prevent other conditions which impede the tenant’s “quiet enjoyment.”  Conditions which reduce the value of the rental to the tenant fall into this category.  Conditions violating the implied warranty of habitability might also interfere with quiet enjoyment, such as vermin infestation, when the conditions are so bad that they actually interfere with the enjoyment of the premises. Wrongfully evicting a tenant or denying the tenant access to a portion of the rental to which the landlord has promised access might also interfere with quiet enjoyment.

    Yes No

  3. Negligence

    4. 3. Negligence

    As a general rule, Landlords must exercise reasonable care in the use and maintenance of the property so that no one is injured. If a Tenant or his/her guests are injured due to the Landlord’s negligence in maintaining the property, then the Tenant can sue the Landlord for money damages. The tenant must always show injury to herself, another resident, or a guest, but the level of negligence a tenant must show varies, causing confusion.  If the landlord makes the repair as a favor (i.e. the landlord is not contractually bound to do so), the tenant may only recover by showing that the landlord made the repair in a grossly negligent manner.  If the landlord has agreed to make repairs as part of the lease, then the tenant can recover upon a showing that the landlord has made repairs in a negligent manner (strangely enough, if the landlord does not make the requested repair at all and injury results, the tenant has only a contract claim).  Finally, if the landlord retains control over the area in need of repair (e.g., a common porch or common area), the tenant can recover upon a showing that the landlord was negligent in her failure to discover or properly repair the condition.

    Yes No

  4. Emotional Distress

    5. 4. Emotional Distress

    This is severe emotional or mental upset and the Landlord may be liable for infliction of emotional distress in the following situations:

    • Emotional Harm that Results in Physical Harm – if Landlord causes Tenant severe emotional distress that results in bodily harm to the Tenant, he/she may recover for the physical and emotional injuries do him/her, whether the Landlord’s actions were negligent, reckless or intentional.
    • Emotional Harm by Itself – If Landlord causes severe emotional distress that does not cause physical harm, Tenant can recover money damages only if the Landlord’s actions were reckless or intentional. Damages could be doubled or tripled if Tenant claims unfair and deceptive practices against the Landlord as well.
    • Physical or Emotional Harm to Another Person – In certain cases, the Landlord could be liable to a third party who is closely related to the Tenant and who has also suffered their own emotional duress because of the Tenant’s distress.

     

    Yes No

  5. Violation of Anti-Discrimination Provisions

    6. 5. Violation of Anti-Discrimination Provisions

    Landlords must not make housing decisions based on a potential tenant’s race, color, religious creed, national origin, sex, sexual orientation, age, genetic information, ancestry, marital status, veteran status, active military status, receipt of public or rental assistance, blindness, hearing impairment, or other handicap.  Landlords also must not run rental advertisements suggesting a preference related to any of the above listed characteristics.  Finally, with a couple of limitations, landlords must not make rental decisions based on the fact that a potential tenant has a child.

    Yes No

  6. Violation of the “Security Deposit and Last Month’s Rent Law”

    7. 6. Violation of the “Security Deposit and Last Month’s Rent Law”

    When a landlord accepts a security deposit or last month’s rent from a tenant, the landlord must deposit those funds into an appropriate interest-bearing account.  When the tenant moves, the landlord must return any funds due and any accumulated interest to the tenant within 30 days or face suit.

    Yes No

  7. Violation of the Anti-Retaliation Provision

    8. 7. Violation of the Anti-Retaliation Provision

    Landlords must not retaliate against tenants for organizing tenants’ unions, for reporting violations of laws or codes, or for bringing suit to enforce their rights under the law.  “Retaliation” is interpreted broadly.

    Yes No

  8. Violation of the Consumer Protection Act (Chapter 93A)

    9. 8. Violation of the Consumer Protection Act (Chapter 93A)

    Landlords, like others engaged in trade or commerce, must not engage in unfair or deceptive acts or practices.  Tenants often claim violations of the Consumer Protection Act concurrent with other causes of action, like interference with quiet enjoyment and violation of the “Security Deposit and Last Month’s Rent Law.”  For example, a violation of the “Lead Law” constitutes an unfair or deceptive act or practice. However, this provision only applies to qualified landlords; for example, it does not apply to Landlords who own a 2 or 3 family building and live in the building.

    Yes No

  9. Violation of the Lead Law

    10. 9. Violation of the Lead Law

    If there is lead in a dwelling, in the paint or in some other building material, a landlord must inform a potential tenant of that fact.  If a child under the age of six tests positive for lead poisoning and the poisoning is due to a landlord’s failure to comply with the “Lead Law,” the child may recover damages.  Landlords run afoul of this provision if they have failed to take steps to contain or remove lead building materials from a residence where a child resides.  Landlords are strictly liable, meaning that a tenant need not show that the landlord knew of the lead or that the landlord was negligent in removing or containing the lead.

    Yes No