October 27, 2023

Community Legal Aid Wins Important Victory for Tenants in Appellate Case, Reinforces Legislatures Effort to Provide Strong Protections to Tenants

BY Community Legal Aid

Community Legal Aid’s Housing and Homelessness Unit provides free legal services to low-income and elderly tenants facing evictions. For many of its clients, affordable housing is difficult to find. Housing Unit Staff Attorney Gabriel Fonseca won a victory for tenants in a recent case decided by the Massachusetts Appeals Court. Not only did Attorney Fonseca help a client avoid eviction, but the case also reinforces the legislature’s efforts to provide strong statutory protections to tenants in the Commonwealth of Massachusetts.

In the case Ferreira v. Charland, a property owner initiated a no-fault eviction. Through her attorney provided by Community Legal Aid, the tenant raised a defense to possession under Mass. General Law 239, §8A. This statute allows a tenant in certain circumstances to defeat the landlord’s possessory claim by raising a successful defense, counterclaim, or violation of law against the landlord. As one counterclaim, the tenant alleged that the landlord violated the state’s water use statute. The landlord acknowledged her mistake and sent the tenant a check as payment of damages to the tenant to remedy to the violation.

The main issue in the case was whether the landlord’s tender of money damages for the violation of the water use statute meant that the tenant could no longer pursue her §8A defense to remain in the property. The Housing Court judge ruled that the payment wiped out the tenant’s counterclaim and therefore could not be used to trigger §8A and enable her to retain possession of the premises. But on appeal, the majority of the Appeals Court ruled that the judge had erred by failing to recognize that the tenant’s counterclaim allowed her to seek money damages as well as possession. It concluded that the tenant’s defense to possession was not rendered “moot”, or eliminated, by the landlord’s payment of money for violation of the statute.

In its decision, the Court’s majority wrote, “In fact, by reading into the statute a landlord’s unilateral right to cure after the filing of a summary process complaint, we would be undermining the Legislature’s efforts to strengthen a tenant’s right to avoid eviction by a landlord in violation of the housing-related statutes.” The court added: “Landlords could simply buy themselves free of the consequences of their failure to follow the law by offering the money due their tenants, at least the tenants who become aware of their rights and defend or advance a counterclaim to their evictions.”

Attorney Fonseca told Massachusetts Lawyer’s Weekly, “This decision did not change the statute; it simply enforced [the law] as written and intended by the Massachusetts Legislature years ago,” Fonseca said. “It was the people of Massachusetts — through the legislative process — who determined tenants should have a way to defeat an eviction action when a landlord fails to meet its own legal obligations. In Massachusetts, tenants have legal rights and protections, too, and the Appeals Court simply reaffirmed and enforced one of those existing protections.”

Ferreira is also the Appeals Court’s first en banc decision under a pilot program launched in the fall of 2022. Under the program, a judge may call for a vote on en banc review, which is reviewed by the full bench of 25 justices of the Appeals Court. Cases that may be heard en banc are those with a decision that would conflict with current precedent, or if the proceeding involves one or more questions of “exceptional importance.” The Ferreira case was originally argued to a three-judge panel in January 2023, and then reheard en banc in April.

About Community Legal Aid:

Community Legal Aid provides free civil legal services to the low-income and elderly residents of the five counties of Western and Central Massachusetts (Berkshire, Franklin, Hampden, Hampshire, and Worcester), and maintains offices in Worcester, Fitchburg, Springfield, Northampton, and Pittsfield. Community Legal Aid works to assure fairness for all in the justice system, protecting homes, livelihoods, health, and families. For more information, please visit www.communitylegal.org.