SOUTH BOSTON ELDERLY RESIDENCES, INC.
Heard: December 1, 2016.
Process. Complaint filed in the Boston Division of the
Housing Court Department on February 4, 2013.
case was heard by Jeffrey M. Winik, J.
Joseph Ross (Ellen Rappaport-Tanowitz also present) for the
Paul Needham for the landlord.
Present: Milkey, Massing, & Sacks, JJ.
defendant, Gerald Moynahan, rents a small apartment from the
plaintiff, South Boston Elderly Residences, Inc. (landlord).
In this summary process action, Moynahan retained possession,
which is no longer at issue. The remaining disputes concern
his counterclaims. A Housing Court judge found that the
landlord committed a breach of the warranty of habitability
with respect to two different problems with the apartment.
One was a recurring moisture problem that became so bad at
one point that mushrooms were growing in the carpeting. The
other was the lack of ventilation due to inaccessible
windows. However, for various reasons that the judge
explained in a detailed memorandum of decision, Moynahan
received only minor rent abatement damages, and his claim
brought pursuant to G. L. c. 93A was dismissed. The judge
also concluded that the landlord had presented clear and
convincing evidence to overcome the statutory presumption
that its efforts to evict Moynahan were in retaliation for
his reporting the sanitary code violations at the apartment.
We affirm in part, reverse in part, and remand for additional
November, 2007, Moynahan moved into unit 13 of an elderly
housing complex that the landlord owns in the South Boston
neighborhood of Boston. The building had just been renovated,
and Moynahan was the first tenant to move into unit 13 after
the renovation. This ground-floor apartment totals
approximately 453 square feet in size. Because of the sloping
topography of the site, part of the unit is subterranean.
Unit 13 has long suffered from moisture and related mold
problems. The specific progression of these problems is
important to resolving this case, and we therefore turn to
reviewing that history in some detail.
The moisture problems.
landlord admitted at trial, moisture issues in unit 13
predated Moynahan's tenancy. Specifically, one of the
landlord's property management agents testified that even
before Moynahan moved in, "the unit had water
issues." According to Moynahan's testimony, unit 13
was "extremely damp" during the summer of 2008, and
he discovered "mold, mildew, something of that
sort" growing in his bedroom closet. As was documented
in electronic mail (e-mail) exchanges admitted in evidence,
Moynahan had reported the mold and dampness issues to the
landlord by December of 2008 at the latest. For example, a
December 23, 2008, e-mail message related that there was
"something black growing on one interior wall, "
and noted "the peculiar cat-like odor originating"
from that area. A follow-up letter that Moynahan sent on
December 29, 2008, complained again in detail about "the
mold and the cat-like odor, " and it relayed
Moynahan's belief that "the mold may also be the
cause of chronic bronchial congestion that I have in the
morning and that I never, in sixty-eight years, previously
had." After inspecting unit 13, the landlord confirmed
that "[t]he carpet was damp, " "fixed the air
conditioner" (which was believed to be the source of the
problem), and "dried out the rug."
did not report any mold problem again until March 17, 2010,
when -- as is uncontested -- he raised it orally during an
annual inspection of his apartment. A follow-up inspection
was scheduled and, by letter dated March 23, 2010, the
landlord notified Moynahan that the "inspection was not
able to be completed due to the amount of clutter and debris
in [his] home." The letter described a
"'sea' of paper bags and boxes, " it stated
that this clutter violated the lease, and it warned of some
of the specific dangers presented, such as a fire hazard.
With respect to the alleged mold in his closet, the letter
stated that "[t]here is no way any work can be performed
in that closet until most if not all clutter/boxes are
removed." It also warned of the need to address the mold
issues immediately: "This mold can and will spread to
the rest of the apartment and we need to address this as soon
as possible." Finally, the letter closed by scheduling a
follow-up inspection on April 19, 2010.
provided a detailed written response to the landlord's
letter. That response described the various items he had
stored in the apartment, and it acknowledged that
"[c]ertainly in as small a space as this apartment all
these result in what could colloquially be called a
'cluttered' space." The letter denied that his
storage practices violated the lease and denied that any of
the stored items could be described as "debris."
April 19, 2010, the date of the scheduled follow-up
inspection, the landlord never showed, prompting Moynahan to
send an angry letter regarding his having wasted the day. In
fact, despite the dire tone of the landlord's March 23,
2010, letter with respect to both the clutter and mold
issues, there is no evidence that the landlord took any
further action for more than a year. The property manager
herself described what happened: "I think at that point
it kind of fell to the wayside." Moynahan continued to
pay his rent.
August, 2011, the moisture problems had worsened to the point
that, as noted, there were mushrooms growing in the
carpeting. As occurred in 2008, see note 1, supra,
Moynahan raised the moisture problem in unit 13 with the
landlord in the context of his seeking to move to a different
apartment in the same building. In a letter dated August 19,
2011, Moynahan explained that he wanted to move because his
"has for some time now been totally unsuitable for
occupancy by any person, and it is becoming steadily and very
rapidly more so, owing to extreme dampness and the wetness of
the carpeted floor, a large and very rapidly expanding
portion of which is, at this writing, soaking wet because of
water coming up from below. . . .
"The identical problem has recurred every summer to some
extent, but I have never complained about it because no other
unit in this building was then available, and I most
certainly did not want to experience what the lady in the
immediately adjacent apartment number 11 had experienced when
she had insoluble water ingress problems in her apartment:
namely, to be moved to one of your units in Milton."
When Moynahan was not allowed to move to the open apartment,
he reported the moisture problem in unit 13 to the Boston
inspectional services department (ISD), which cited the
landlord for the problem. According to the judge, by
September 9, 2011, a plumber hired by the landlord
"repaired the wall-mounted air conditioning unit that
appears to have been the source of the water leak."
However, the water had caused extensive damage to the walls
and carpeting. The necessary repairs were delayed by
contentious negotiations between the landlord and Moynahan
over the terms of Moynahan's vacating the apartment to
allow the work to be done. Moynahan eventually temporarily
moved into the adjacent unit 11, and the landlord then
addressed the damage caused by the moisture issues,
completing those repairs by March 3, 2012.
The October, 2011, notice to quit.
on October 6, 2011, the landlord served Moynahan with a
notice to quit the premises. At that point, Moynahan still
was current in paying his rent, and the notice to quit was
based on the cluttered state of Moynahan's apartment.
Thereafter, the landlord refused to cash Moynahan's rent
checks. Moynahan stopped payment on the accumulated uncashed
checks to the landlord, instead paying the rent into an
The ventilation problem.
began moving his possessions back into unit 13 in April,
2012. He told the landlord, however, that he could not stay
in the unit for extended periods of time due to fumes
emanating from the fresh paint and new carpeting. Moynahan
pointed out that although the apartment had six windows that
theoretically could be opened to ventilate the fumes, these
windows were inaccessible because they were eight feet from
the floor. In May, 2012, Moynahan contacted ISD about the
ventilation issues. The agency concluded that the inadequate
ventilation caused by the inaccessible windows constituted a
sanitary code violation. After ISD intervened, the landlord
addressed the ventilation issue by installing on some of the
windows special latches that could be opened using a pole.
ISD signed off on this fix in December, 2012. In the interim,
Moynahan slept at his sister's house.
The December, 2012, notice to quit and the court
addressed the ventilation issue, the landlord on December 14,
2012, served Moynahan with a second notice to quit, this one
based on the unpaid rent. The current summary process action
followed on February 4, 2013. Moynahan brought numerous
counterclaims to the summary process action. As the case
crystallized over the course of the proceedings, the key
issues were the following: the extent to which the moisture
and ventilation problems constituted a breach of the warranty
of habitability and warranted rent abatement damages; whether
the landlord's conduct violated c. 93A or statutes
prohibiting retaliation by landlords, see G. L. c. 186,
§ 18, and G. L. c. 239, § 2A; and whether the
landlord's entry into unit 13 at times when Moynahan had
signaled he could not be present interfered with his quiet
enjoyment of the premises, see G. L. c. 186, § 14.
The judge's findings and rulings.
a three-day trial, the judge issued extensive findings and
rulings. The judge found that both the moisture problem and
the ventilation problem constituted a breach of the warranty
of habitability, but he allowed only limited rent abatement
damages during the respective periods. With respect to the
moisture problem, the judge determined that the first
material breach of the warranty of habitability occurred in
August, 2011, when the existence of a severe moisture problem
was well-documented and the landlord plainly had notice of
the problem. The judge declined to give Moynahan any rent
abatement damages for any moisture problems prior to August,
2011, offering two different types of reasons for this.
First, he found that although Moynahan had reported
moisture-related problems prior to August, 2011, "those
conditions were relatively minor and did not endanger
Moynahan's health or safety or otherwise diminish the
value of the apartment." Second, with respect to the
mold issues reported in March, 2010, the judge found that
clutter in the apartment prevented the landlord's
inspector from gaining the access necessary to confirm
whether the problem existed.
the damage caused by the leak was not repaired until March 3,
2012, the judge declined to give Moynahan any rent abatement
damages for the months of October, November, and December of
2011, on the grounds that during those months, Moynahan made
unreasonable demands and prevented the landlord from making
the repairs. The only breach of warranty damages that the
judge awarded for the moisture problem were based on a thirty
percent rent abatement for August and ...