By Sean Tiernan

The recent Appeals Court decision of Cassandra Ferreira v. Laural Charland, served as another warning to landlords of the complexities and difficulties that can arise when attempting to regain possession of your property through the court eviction process.

In this no-fault summary process action, the question on appeal was whether the landlord’s tender of damages to the tenant 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.

General Laws c. 186, § 22, dictates 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. A violation of the water use statute is a violation of “any other law” within the meaning of § 8A. This is 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.

Before the date of the court hearing, attempting to rectify the water use law breach, the landlord sent checks to both the tenant and her attorney, totaling $3,615. The checks were accompanied by notes explaining that they represented reimbursement for water charges during the tenancy, as well as damages stemming from the violation for a total payment equaled to “three times a month’s rent.”     The appeals court decided that if a landlord improperly bills utilities to a tenant, resulting in a refund owed to said tenant, the tenant has the right to defend for possession in an eviction. Even if a landlord seeks to cure the innocent mistake by paying the refund times three, the renter can remain in possession. The landlord’s payment, in an attempt to cure, does not grant them the right of possession of their own property.

However, if the reverse is true and a tenant fails to pay rent or commits a violation that forced the Landlord to file in court, a tenant is granted the right to cure the violation and retain possession under section 8a. Unfortunately, as this Appeals court has decided, only tenants are granted this right and Landlords have no such right to cure a violation and repossess their property.

This Appellate court decision is not without its critics, including three Justices on the panel itself. the Honorable Judge Joseph Ditkoff, a presiding judge appointed to the Massachusetts Supreme Judicial Court, this case, “adds to the steady judicial drumbeat warning every small residential landowner that, whatever you do, do not rent out your property.”     Further a, “There are many reasons for the housing crisis in Massachusetts, but we would do well to acknowledge that our landlord-tenant jurisprudence is one of them.”

As always, check with an attorney before beginning the eviction process to avoid the many pitfalls awaiting landlords once the process beings.

For a copy of the Cassandra Ferreira v. Laurel Charland Decision [click here].

Written by

Sean Tiernan


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