Substantive Defenses and Counterclaims

A list and description of laws that may have been violated.

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  1. Summary of Substantive Defenses and Counterclaims

    2. 1. Summary of Substantive Defenses and Counterclaims

    Breach of the Implied 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.  Generally, conditions preventing a tenant from carrying on day-to-day living in the dwelling effect a breach of the warranty.

    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.  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.  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.

    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.

    Violation of the Consumer Protection Act
    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. 

    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.
     
    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.

    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, 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.

    Negligence
    Tenants also may bring common law claims of negligence against landlords.  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.

    Reckless or Intentional Infliction of Emotional Distress
    Tenants faced with particularly egregious landlord behavior might also bring a claim for intentional infliction of emotional distress in addition to any number of the other available claims.  A tenant can only recover under this theory if the landlord has acted in a particularly outrageous manner, causing the tenant severe emotional distress.  The tenant must show that the landlord knew or should have known that his actions would cause emotional distress.

    Negligent Infliction of Emotional Distress
    A tenant may also recover for emotional distress caused by her landlord’s negligence.  The landlord need not have acted outrageously, as with intentional infliction of emotional distress; however, the tenant must present objective evidence of her distress and must show that a reasonable person in her place would have been distressed.

  2. Elements of a Breach of Implied Warranty of Habitability Claim

    3. 2. Elements of a Breach of Implied Warranty of Habitability Claim

    See Boston Housing Auth. v. Hemingway, 363 Mass. 184, 199 (1973):
    "In a rental of any premises for dwelling purposes,
    Under a written or oral lease, for a specified time or at will,
    There is an implied warranty that the premises are fit for human occupation," meaning "there are no latent (or patent) defects in facilities vital to the use of the premises for residential purposes and that these essential facilities will remain during the entire term in a condition which makes the property livable."


    Factors courts consider when assessing whether a condition rises to the level of a breach.  See id. at 200-01.

    • seriousness of claimed defects and effect on habitability,
    • length of time defects persist,
    • whether landlord received written or oral notice of defect,
    • whether residence could be made habitable within a reasonable time, and
    • whether the defects resulted from abnormal conduct or use by tenant.

    Rent abatement for a breach begins immediately when the tenant gives notice of the defect or condition to the landlord, not after a reasonable time for repair has lapsed.  See Berman & Sons, Inc. v. Jefferson, 379 Mass. 196, 203 (1979).


    Condition in question must relate to habitability.  Not every condition resulting in a physical injury violates the implied warranty of habitability.  See Lynch v. James, 44 Mass.App.Ct. 448 (1998) (holding that landlord's failure to install window stops or guards did not violate the warranty and that landlord therefore was not liable for injuries suffered by child who fell from window); Spaulding v. Young, 32 Mass.App.Ct. 624, 627 (1992) (holding that improperly installed kitchen cabinets did not violate the warranty).

    The following are conditions courts have found to breach the implied warranty of habitability:

    • Inadequate heat and hot water and rodent infestation, Cruz Mgmt. Co, Inc. v. Thomas, 417 Mass. 782 (1994); see also Berman, 379 Mass. 196.
    • Flooding of dwelling by water and sewage, Simon v. Solomon, 385 Mass. 91 (1982).

  3. Elements of an M.G.L. c. 186 s. 14 Claim

    4. 3. Elements of an M.G.L. c. 186 s. 14 Claim

    1. A Lessor or Landlord

    2. Of a building occupied in whole or in part for "dwelling purposes,"

    3. "Willfully or intentionally" fails to supply utilities.

    Landlord  is required, by law or contract/lease (express or implied term), To furnish water, hot water, heat, light, power, gas, elevator service, telephone service, janitorial service, or refrigeration service to an occupant, but "willfully or intentionally" fails to do so.

    Tenant must demonstrate negligence on the part of the landlord, which usually means that the tenant must demonstrate landlord's knowledge of the defect and failure to take appropriate action.  Al-Ziab v. Mourgis, 424 Mass. 847, 850-51 (1997); Lowery v. Robinson, 13 Mass.App.Ct. 982, 983 (1982) (holding that landlord was liable for failure to supply heat "if the natural and probable consequence of the landlord's action [was] interruption of the tenant's rights") (internal quotes omitted); Flynn v. Riemer, 1991 WL 43037 (Mass. App. Div.) (affirming trial court's finding that landlord was not liable for temporary failure to supply water because landlord took immediate steps to rectify the problem and ultimately corrected the problem). "[A]t any time when the same is necessary to the proper or customary use" of the premises.

    4. OR "directly or indirectly interferes" with furnishing of utility services by a third party

    5. OR transfers responsibility for the payment of a utility to the tenant without tenant's knowledge or consent.

    M.G.L. c. 186 s. 14  Any unconsented transfer of responsibility is a per se violation and that, upon a showing of the transfer, the tenant is entitled to the greater of actual damages or three month's rent.  At least one court has interpreted the provision in this manner.  See Brinn v. Mello, 1998 WL 166635 (Mass. App. Div.) (holding that tenant was entitled to damages award of three month's rent despite the fact that actual damages only amounted to $140).  However, the court in Krechmer v. Weare took a different view, explicitly finding a violation of the provision but refusing to award the tenant damages because there was no evidence that tenant's enjoyment of the property had suffered or that the cost of actual rent and the wrongfully transferred utility bills exceeded the fair rental value of the property.  2001 WL 1902694 (Mass. Super. Ct.).

    6. OR "directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant"

    The tenant must demonstrate at least negligence on the part of the landlord.  See Al-Ziab v. Mourgis, 424 Mass. 847, 850-51 (1997).
    Applies to conditions which impair "a tenant's right to freedom from serious interference with his tenancy—acts or omissions that impair the character and value of the leased premises."  Doe v. New Bedford Housing Auth., 417 Mass. 273, 285 (1994).

    Conditions the courts have found to interfere with a tenant's quiet enjoyment:

    • Landlord's placement of unwanted roommate on premises,  Lawrence v. Osuagwu, 57 Mass.App.Ct. 60 (2003);
    • Inadequate heat and hot water and rodent infestation, Cruz Mgmt. Co, Inc. v. Thomas, 417 Mass. 782 (1994);
    • Ringing of smoke alarms for more than one day, Manzaro v. McCann, 401 Mass. 880 (1988);
    • Locking tenant out of conference room after landlord promised him use in order to induce him to rent, Ianello v. Court Mgmt. Corp., 400 Mass. 321 (1987);
    • Wrongful eviction,  see, e.g., Shindler v. Grove Hall Kosher Delicatessen & Lunch, 282 Mass. 32 (1933).

    7. OR "attempts to regain possession of such premises by force without benefit of  judicial process."

  4. Elements of a 93A Claim

    5. 4. Elements of a 93A Claim

    1. Employment of an unfair method of competition or an unfair or deceptive act or practice.

    When determining when an act or practice is unfair or deceptive, courts look to all the circumstances in order to determine whether a landlord's behavior reasonably could be found to have caused the tenant to act differently than he otherwise would (i.e. did the landlord's behavior persuade the tenant to rent a dwelling he otherwise would not have or pay rent higher than he otherwise would have).  See Swenson v. Yellow Transp., Inc., 317 F.Supp.2d 51 (D.Mass. 2004).

    Landlord actions deemed to have violated 93A:

    • Under M.G.L. c. 111 s. 197A(e), a violation of the Lead Law by an individual engaged in trade or commerce constitutes an unfair or deceptive act or practice.
    • In Haddad v. Gonzalez, the court upheld a finding that landlord had violated 93A by ignoring tenant's numerous requests for repairs, by commencing eviction proceedings after tenant attempted to assert her rights, by ignoring court orders to make repairs, and by sexually harassing tenant and threatening to interfere with her ability to receive welfare.  410 Mass. 855 (1991).
    • In Carter v. Seto, the court upheld a finding that landlord had violated 93A by charging tenant $150 deposit for electric garage door opener in addition to $2000 security deposit and by retaining portion of security deposit but failing to provide tenant with sworn itemized list of damages within 30 days of termination of lease.  66 Mass.App.Ct. 1114 (2005).

               2. In the conduct of any trade or commerce.

  5. Elements of an M.G.L. c. 186 s. 15B Claim

    6. 5. Elements of an M.G.L. c. 186 s. 15B Claim

    1. Lessor,

    2. Fails to handle security deposit and/or last month's rent in accordance with statute.

    Non-compliance includes:

    • Failure to pay tenant any interest on held last month's rent to which the tenant is entitled within 30 days of termination of the lease (M.G.L. c. 186 s. 15B(2)(a));
    • Failure to deposit security deposit funds into an appropriate interest-bearing account (M.G.L. c. 186 s. 15B(6)(a), (7));
    • Failure to transfer security deposit to any successor in ownership of the leased property (M.G.L. c. 186 s. 15B(6)(d), (7));
    • Failure to return to the tenant any portion of the security deposit to which tenant is entitled after deducting any sums allowed by statute (for property damages, etc.) within 30 days of termination of the lease (M.G.L. c. 186 s. 15B(6)(e), (7)).
    • Lessor must have "reasonable, good faith" belief that rent is owed before withholding back-rent from security deposit refund.  McGrath v. Mishara, 386 Mass. 74, 81-2 (1982).
    • Lessor must itemize any amounts withheld for repairs and must state the nature of the repair necessary and the actual or estimated cost of the repair.  Id.
    • Thirty-day period for returning deposit begins when tenant actually relinquishes possession of the leased premises.  Neihaus v. Maxwell, 54 Mass.App.Ct. 558 (2002).

    Tenant need not show bad faith on the part of the landlord.  See Mellor v. Berman, 390 Mass. 275 (1983).

  6. Elements of a Negligence Claim

    7. 6. Elements of a Negligence Claim

    1. Landlord or owner,
    2. Fails to exercise reasonable care,

    • In an area rented by the tenant, the tenant may maintain a negligence claim against the landlord if, after receiving certified written notice from the tenant or a code enforcement agency, the landlord failed to exercise reasonable care to correct the unsafe condition and injury resulted (owner-occupied two or three family dwellings excepted). GL ch. 186 § 19. A landlord must exercise reasonable care not to subject others to an unreasonable risk of harm, and must act as a reasonable person under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk – notice required but not required to be written. Young v. Garwacki, 380 Mass. 162 (1980) Any lease provision indemnifying or exculpating the landlord from negligence related to the leased premises, including those areas under the sole control of the tenant, are deemed against public policy and void. GL ch. 186 § 15.
    • If the landlord maintains control over an area of the leased premises, the landlord must exercise reasonable care in order to discover dangerous conditions in the area and to make those conditions safe.  It does not matter whether the condition existed at the time the tenant signed his lease or whether the condition is in a so-called "common area."  Crowell v. McCaffrey, 377 Mass. 443 (1979); Sanford v. Belemyessi, 362 Mass. 123 (1971) (pointing to fact that plaintiff tenant had exclusive use of porch and stairs and fact that plaintiff had placed a dog gate on porch when holding that plaintiff, not landlord, was in control of porch and stairs).
    • Violation of a code provision or statute related to safety is evidence of negligence.  Lindsey v. Massios, 372 Mass. 79 (1977).

    3. Resulting in injury.

    • Landlord is equally liable for injury to a tenant or his or her guest.  King v. G & M Realty Corp., 373 Mass. 658 (1977).

  7. Discrimination Laws

    8. 7. Discrimination Laws

    Elements of an M.G.L. c. 186 s. 18 Claim


    1. Any person or agent thereof,
    2. Who threatens to or takes reprisals,
    • "Reprisal" is to be interpreted broadly.  When landlord had an established policy of allowing tenants to stay on as tenants at will after the termination of their leases, refusing to allow tenant to remain as tenant at will after the termination of his lease qualified as a reprisal under statute.  Scofield v. Berman & Sons, Inc., 393 Mass. 95 (1984).
    • Locking tenant out of conference room after landlord promised him use constituted a reprisal.  Ianello v. Court Mgmt. Corp., 400 Mass. 321 (1987).

    3. Against any tenant of a residential premises,
    4. Because the tenant has done any of the following:

    • Commenced, proceeded with, or obtained relief by engaging in a proceeding to enforce any law (federal, state, or local) aimed at regulating residential premises;
    • Exercised rights under M.G.L. c. 164 s. 124D, which requires gas and electric companies to give tenants notice and an opportunity to pay amounts due before shutting off utility accounts held by the owner of a premises or his agent;
    • Reported a violation or suspected violation of the health code, building code, or other by-law or ordinance;
    • Reported or complained about a violation or suspected violation of the health code, building code, or other by-law or ordinance in writing to the landlord;
    • Organized or joined a tenants' union or similar organization; OR
    • Paid rent directly to an organization of unit owners at the organization's request pursuant to M.G.L. c. 183A s. 6(c) to cover unpaid common expenses owed by the owner of the rented unit.

    NOTE—Per M.G.L. c. 186 s. 18, if the lessor or owner terminates the tenancy (except for nonpayment of rent), increases the rent, or effects "any substantial alteration" in the terms of the tenancy within six months of a tenant engaging in any of the above protected activities, there is a rebuttable presumption that the lessor's or owner's action is a reprisal.  The lessor or owner must show by clear and convincing evidence that the action was not a reprisal, that the lessor or owner had "sufficient independent justification" for taking the action, and that the lessor or owner would have taken the same action regardless of the tenant's engagement in protected activities.

    Elements of an M.G.L. c. 151B s. 4(6), (7), (11) Claim


    1. Landlord, owner, etc.,
    2. Refuses to rent, lease, sell, or negotiate for sale or lease because of a person's race, color, religious creed, national origin, sex, sexual orientation, age, genetic information, ancestry, marital status, veteran status, status as a member of the armed services, blindness, hearing impairment, or other handicap,
    • This provision does not apply to owners of a "two family dwelling" when the owner rents out one unit but resides in the other unit.  M.G.L. c. 151B s. 4(6), (7).
    • Under this provision, "age" does not apply to status as a minor or to state or federally funded housing specifically for the elderly.  Id.
    • Discrimination on the basis of handicap includes failure to construct dwellings in a manner such that the public use and common use portions are accessible and usable by individuals with handicaps, including doors and passageways of sufficient width, accessible light switches, electrical outlets, etc., usable kitchens and bathrooms, and reinforcements in bathroom walls to allow for later installation of grab bars.  These requirements apply to all dwellings with three or more units and an elevator constructed for first occupancy after March 13, 1991, and to all ground floor units in dwellings with three or more units but no elevator constructed for first occupancy after March 13, 1991.  Discrimination on the basis of handicap also encompasses refusal to permit or to make reasonable modifications at the expense of a handicapped tenant or to refuse to make reasonable accommodations as to rules policies, services, etc.  Id.
    3. OR refuses to rent, lease, sell, or negotiate for sale or lease because a potential lessee or buyer has a child or children who would occupy the premises,
    • This provision does not apply to dwellings with three or fewer apartments when one of the apartments is occupied by a person sixty-five years of age or older or by a person who is disabled or suffering from a chronic illness OR to temporary leases or subleases (one year or less) of a single apartment or unit by a party who normally resides in the apartment or unit OR to owners of a "two family dwelling" when the owner rents out one unit but resides in the other unit.  M.G.L. c. 151B s. 4(11).
    • Under M.G.L. c. 111 s. 199(a), a landlord, owner, etc. may not refuse to rent or sell to individuals with children in order to avoid triggering duties imposed under the Lead Law.
    4. OR publishes or causes to be published a notice or advertisement for the rental or sale of an apartment or other covered dwelling indicating any limitation or preference as to race, color, religion, sex, sexual orientation, national origin, genetic information, ancestry, children, marital status, public assistance recipiency, or handicap.
    NOTE—A tenant must first file a charge with the Massachusetts Commission Against Discrimination.  If the Commissioner finds probable cause , the tenant has the option of proceeding before the Commission or of filing an action in court.  M.G.L. c. 151B s. 5.

  8. Elements of a Negligent Infliction of Emotional Distress Claim

    9. 8. Elements of a Negligent Infliction of Emotional Distress Claim

    1. Landlord has acted negligently, and
    2. Landlord's conduct has caused
    3. Tenant to suffer emotional distress,

    4. Which is manifested by "objective symptomology," and

    • Such "symptomology" may include predominantly mental symptoms, such as sleeplessness and nightmares.  Sullivan v. Boston Gas Co., 414 Mass. 129 (1993); Rodriguez v. Cambridge Housing Auth., 443 Mass. 697 (2005).
    • Courts consider length of time plaintiff-tenant has suffered the symptoms.  Sullivan, 414 Mass. 129.
    • Expert medical testimony is not required, but tenant must "corroborate [his or her] mental distress claims with enough objective evidence of harm to convince a judge that [his or her] claims [are] likely genuine."  Id. (internal quotes omitted).
    • "Mere upset, dismay, humiliation, grief and anger" is insufficient.  Id.

    5. A reasonable person would have experienced emotional distress under the circumstances.

    • Rodriguez v. Cambridge Housing Auth., 443 Mass. 697 (2005) (holding that child who witnessed mother, injured and brutalized after an attack precipitated by landlord's negligence, could recover under a theory of negligent infliction of emotional distress).
    • Id. (holding that previous victim of attack by an intruder who had entered apartment due to landlord's negligence could recover for emotional distress suffered when she heard a second intruder exit the apartment upon her arrival home).

  9. Elements of a Reckless or Intentional Infliction of Emotional Distress Claim

    10. 9. Elements of a Reckless or Intentional Infliction of Emotional Distress Claim

    1. Landlord intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct,

    Simon v. Solomon, 385 Mass. 91 (1982). (holding that landlord knew or should have known that allowing sewage to flood apartment on multiple occasions would cause emotional distress to tenant).
    2. Landlord's conduct was "extreme and outrageous,"
    See id. (holding that landlord's failure to prevent sewage floods despite repeated requests was "beyond all possible bounds of decency.").
    3. Landlord's conduct was the cause of tenant's distress, AND
    See id. (holding that landlord's failure to cement walls between tenant's apartment and basement area prone to flooding by sewage was a "sufficiently proximate cause" of tenant's emotional suffering).
    4. Tenant's distress was "severe."
    Tenant need not show physical injury if tenant demonstrates all the above elements.  Id.

  10. Monetary Damages

    11. 10. Monetary Damages

    Breach of implied warranty of habitability

    Common law BHA v Hemingway, 363 Mass. 184(1973)

    • Fair Market Value repairs- FMV disrepair + consequential damages

    Interference with Quest Enjoyment IQE/ Utilities- MGL 186, s. 14

    • Three months rent or actual damages (which ever is greater) + attorney’s fees & costs

    Violation of Lead Law MGL c 111, secs 190-199

    • Diminution of value, medical expenses, pain & suffering, punitive damages

    Violation of Consumer Protection Act (93A) MGL c 93A

    • $25 or actual damages (which ever is greater) + attorney’s fees and costs; double or treble damages for (1) “willful or knowing” violations (judge’s discretion based on egregiousness of conduct) or (2) bad faith refusal to make reasonable offer upon demand.

    Violations of Security Deposit/Last Month’s Rent law MGL 186, s 15B

    • Security Deposit: (for some violations) 3 x deposit + 3x interest +attorney’s fees & costs last month rent- 3x interest + attorney’s fees & costs

    Retaliation MGL 186 s 18

    • 1-3x monthly rent or actual damages (which ever is greater) + attorney’s fees & costs

    Discrimination MGL c 151B, Lead law; MGL c 111, s 199(a)

    • Compensatory damages (including moving costs; difference in rent; realtor fees; lost work time; emotional distress) & punitive damages + attorney’s fees & costs

    Negligence Common law

    • Actual damages and consequential damages

    Negligent Infliction of Emotional Distress

    ommon Law, see Payton v Abbot Labs, 386 Mass. 540 (1982)

    • Actual damages (including loss income; medical and psychiatric expenses; past, present , future pain and suffering)

    Intention Infliction of Emotional Distress

    Common Law see George v Jordan Marsh, 359 Mass 244 (1971)

    • Actual damages (including lost income; medical and psychiatric expenses; past, present, future pain and suffering)