Section Review

Jablonski v. Clemons: A reaffirmation of tenants' remedies

A. Joseph Ross has practiced as a solo practitioner in Boston since 1975 with a concentration in landlord-tenant law. In the early 1970s, Ross was a hearing examiner and staff attorney at Brookline Rent Control Board.

These are difficult times for a private practitioner to represent residential tenants. The image of the abusive slumlord has given way to that of the savvy tenant who manipulates the system to prey on the poor, innocent landlord. Small wonder if the political and judicial climate often seems to have shifted away from protecting tenants.

In a different era, various statutes, such as General Laws chapter186, sections 14 and 18 and, of course, chapter 93A furnished the basis for shifting legal fees to the landlord, making it economically possible for a private practitioner to represent the tenant in some of these cases. But now, even where the facts show a tenant entitled to some relief, one often sees judges shy away from applying these statutes. Judges will find the tenant entitled to a rent abatement for breach of warranty of habitability, but will award minimal damages and will specifically find no interference with quiet enjoyment, reprisal or unfair and deceptive practices, thus avoiding multiple damages or a fee award to the tenant's attorney.

While it is no doubt true that some tenants abuse the system, as some landlords have done for generations, Massachusetts still has a very tight and expensive rental housing market, and there are still landlords who refuse to make repairs and seek to evict tenants who complain.

It is therefore heartening to see the Appeals Court, in the recent case of Jablonski v. Clemons, 60 Mass. App. Ct. 473 (2004), reaffirm the viability of tenant protections in our law.

The Clemons had been tenants in a Randolph apartment complex for more than nine years. This third-floor apartment was plagued with a ventilation problem, whereby dryers from other units were venting through their bathroom, causing both moisture and foul odor problems. The trial judge in the Quincy District Court found that the landlord knew about the problem from the inception of the tenancy. Despite several good-faith efforts to correct it, the problem persisted up through the time of trial. The tenants attempted to cope with the problem by keeping the bathroom door closed and running the exhaust fan 24/7. On the night of Nov. 22, 2000, a fire broke out in the bathroom, causing damage to the unit. The trial judge found that the overheated fan caused the fire.

On Nov. 25, the local board of health, called by the tenants, inspected and cited the owners for several code violations, including the ventilation problem and an ant infestation that had been going on for well more than a year.

The trial judge found that the landlord knowingly rented the premises in a defective condition and failed to correct the ventilation problem for more than nine years. This forced the tenants to keep the door shut and run the fan continuously, leading to the fire. The tenants were awarded a rent abatement for breach of warranty of habitability, but the judge found no interference with the tenants' quiet enjoyment and no violation of chapter 93A.

The tenants had engaged in several protected activities in November 2000, including organizing a tenants' petition for submission to the landlord and to the board of health, filing a complaint regarding code violations and withholding rent under General Laws chapter 239, section 8A. The landlord terminated their tenancy a few months later in February 2001, raising a rebuttable presumption under General Laws chapter 186, section 18 that the termination was a reprisal. The statutory presumption can be rebutted only by clear and convincing evidence that the landlord had "sufficient independent justification for taking such action, and would have in fact taken such action, in the same manner and at the same time the action was taken, regardless of tenants engaging in ... [protected] activities."

The trial judge ruled, without explanation, that the landlord "had rebutted any claim of a retaliatory eviction." The Appeals Court found that the landlord failed to introduce any evidence on the issue of his motive for initiating the eviction action so quickly after the tenants engaged in their protected activity, adding that "it was not up to the tenants to introduce such evidence..." and the tenants were therefore entitled to a damages award for reprisal.

The Appeals Court held that the facts entitled the tenants to a damages award for breach of quiet enjoyment pursuant to chapter 186, section 14 and to an award under chapter 93A and remanded the case to the district court for further proceedings on the issues of damages and attorney's fees.

With the one-trial system now in effect in most counties, tenants' attorneys in district court cases should be especially careful to file adequate requests for rulings of law so as to protect the record in the event of an appeal being needed. This decision by the Appeals Court furnishes a needed reminder that the statutes adopted in the 1960s and 1970s to protect the rights of tenants are still the law of the commonwealth.

©2014 Massachusetts Bar Association