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South Boston Elderly Residences Inc. v. Moynahan

Appeals Court of Massachusetts, Suffolk

May 9, 2017


          Heard: December 1, 2016.

         Summary Process. Complaint filed in the Boston Division of the Housing Court Department on February 4, 2013.

         The case was heard by Jeffrey M. Winik, J.

          A. Joseph Ross (Ellen Rappaport-Tanowitz also present) for the tenant.

          W. Paul Needham for the landlord.

          Present: Milkey, Massing, & Sacks, JJ.

          MILKEY, J.

         The 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 proceedings.


         In 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.

         1. The moisture problems.

         As the 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.[1] 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."

         Moynahan 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.

         Moynahan 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."

         On 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.

         By 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 existing apartment

"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.

         2. The October, 2011, notice to quit.

         Meanwhile, 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 escrow account.[2]

         3. The ventilation problem.

         Moynahan 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.

         4. The December, 2012, notice to quit and the court action.

         Having 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.

         5. The judge's findings and rulings.

         Following 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.

         Although 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 ...

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