The most common type of summary process case, by far, is based on a notice to quit for ‘nonpayment’. This is true for our office as well for the Commonwealth and United States at large.
In response to a nonpayment case in the Commonwealth, a defendant tenant will frequently submit a defense or counterclaim citing G.L. c. 239 § 8A, which provides protection against a landlord’s breach of warranty, any provision of the rental agreement, or any other law.
A defense or counterclaim successfully argued under this rule can have serious consequences: reducing the amount owed by a tenant or even resulting in the landlord owing money to the tenant. What perhaps isn’t as widely understood is that G.L. c. 239 § 8A can also be used as a potential defense to possession.
In the 2020 case of Ferreira v. Charland, the landlord brought a summary process seeking possession against a residential tenant. The tenant raised a defense under G.L. c. 239 § 8A alleging the landlord violated a water use statute under G.L. c. 186 § 22. Rather than litigate the tenant’s allegations under G.L. c. 186 § 22, or possibly enter some type of agreement through the court, the landlord gave the tenant two checks: one representing double the amount the tenant paid for water costs and another which was to pay for any potential water and sewer damages. The amount paid supposedly represented three months’ rent.
Prior to trial, the landlord argued that the two checks acted as a legal “cure”, dissolving the tenant’s defense. The Judge agreed and awarded possession to the landlord. The tenant appealed, arguing that two payments did not preclude an argument for possession under G.L. c. 239 § 8A.
In 2023, the Appeals Court of Massachusetts disagreed with the Housing Court finding among other things that, “a landlord’s tender of money damages to the tenant, after the landlord commenced summary process proceedings, does not moot the tenant’s claim to possession, unless the tenant has clearly released the claim, because money damages are but one of two available remedies – the other being the tenant’s ability to remain in the property (possession) upon proof of a valid counterclaim or defense under § 8A.” As a result, the Appeals Court vacated the judgment and sent the case back to the Housing Court.
The Appeals Court even made note of the landlord’s good faith in making the payments, stating that, “To be clear, we are not suggesting that the landlord here acted with bad intent, as opposed to making (and then trying to cure) an honest mistake. But § 8A’s mandate applies to all landlords, including those less scrupulous than the landlord here appears to have been.”
Outside of the ruling from Ferreira, the case has another clear lesson: make any agreement as direct and encompassing as possible. If a landlord is offering monetary compensation to a tenant to resolve part or all of their dispute, make sure that there is a written agreement signed by all parties that includes exactly what will be offered and accepted as consideration.
The landlord in Ferreira believed that by paying the tenant, they had no further defense under G.L. c. 239 § 8A. Had the parties entered into an agreement with those terms expressly stated, the landlord would have been correct.