ANTONIO F. PENNETTI v. ELIJAH T. BEAUREGARD & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-204

ANTONIO F. PENNETTI

vs.

ELIJAH T. BEAUREGARD & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This case stems from a no-fault residential summary process

action brought in the Housing Court. After trial, the judge

found that the tenants, Elijah Beauregard and Jennifer Cochran,

owed the landlord, Antonio Pennetti, unpaid rent. The tenants,

however, had counterclaimed alleging retaliation, G. L. c. 186,

§ 18; breach of the warranty of habitability; and violations of

G. L. c. 93A. The judge found in favor of the tenants on those

counterclaims and ultimately offset the tenants' unpaid rent

against the amount of damages owed to them. Judgment entered in

favor of the tenants for possession and the balance of the

1 Jennifer Cochran.
monetary damages after the offset. See G. L. c. 239, § 8A. We

affirm.

1. Background. We summarize the procedural history and

relevant facts as the judge found them, supplemented with

undisputed facts from the record.2 See Commonwealth v. Jones-

Pannell, 472 Mass. 429, 431 (2015). We reserve certain facts

for later discussion.

In May 2019, the tenants signed a one-year written lease

for an apartment in the landlord's three-family residential

building on Elizabeth Street in Fitchburg. The monthly rent was

$1,100, and the tenants were responsible for paying the gas and

electrical utility costs for the apartment. When the lease

expired, the tenants remained in the apartment on an at-will

basis at the same rent.

The landlord's property manager showed the tenants the

apartment before they moved in, and the landlord visited the

property almost monthly thereafter. Certain defects were

present in the common areas of the property from the beginning

of the tenants' occupancy; notably, a window, "stair threads,"3

the porch floor, and the roof were in disrepair (together,

2 We are satisfied that none of the facts on which we rely
are clearly erroneous.

3 We understand "stair thread" in this context to be
synonymous with "stair tread."

2
common area defects). Additionally, in October 2020, the entry

door to the apartment was kicked in during an attempted break-in

at the apartment. The landlord patched the door, but did not

replace it for more than thirty days. During that time, the

door was covered by a plywood board and secured with only a

"slide chain" inside the apartment.

In March 2022, the property manager requested that the

tenants identify any defects at the property. The tenants

responded with a list that included many of the common area

defects. Several months later, in May 2022, the city's board of

health inspected the property at the tenants' request and cited

the landlord for cross-metering of electricity and gas between

the tenants' apartment and another apartment, and three other

defective conditions in and around the apartment. The landlord

remedied each of the defects identified in the board's report

within a month of the issuance of the citation.

On November 3, 2022, Beauregard brought a small claims

action against the landlord and the landlord's property manager,

alleging that they violated G. L. c. 93A by cross-metering

utilities. A clerk-magistrate found in favor of the landlord,

and judgment entered accordingly.

On January 27, 2023, the landlord served the tenants with a

notice to quit; he filed this summary process action on March

10, 2023. The tenants answered and asserted counterclaims and

3
defenses including, as relevant here, retaliation, breach of the

implied warranty of habitability, interference with quiet

enjoyment of the property, and violations of G. L. c. 93A. The

tenants were current on their rent when they were served with

the notice to quit, but they began withholding rent in February

2023.

The resulting case was tried in June 2023. After trial,

the judge determined that the tenants owed $9,900 to the

landlord in unpaid rent, but also that the tenants had proven

their counterclaims and damages of $10,500. Offsetting the

unpaid rent against the counterclaim damages, the judge

determined that the landlord owed the tenants a balance of $600.

In accordance with G. L. c. 239, § 8A, judgment for damages in

that amount (plus interest) and possession of the property

entered for the tenants.4 This appeal followed.

2. Discussion. In reviewing the judge's decision, "'we

accept [the judge's] findings of fact as true unless they are

clearly erroneous,' but 'we scrutinize without deference the

legal standard which the judge applied to the facts.'"

Cambridge St. Realty, LLC v. Stewart, 481 Mass. 121, 123 (2018),

quoting Andover Hous. Auth. v. Shkolnik, 443 Mass. 300, 306

(2005).

4 Separate judgment entered awarding the tenants attorney's
fees.

4
a. Retaliatory eviction. Beauregard's small claims

action, as he filed it, sought damages for both unlawful cross-

metering of utilities and the existence of other defective

conditions. The landlord's notice to quit was served less than

three months later; at the time the notice to quit was served,

the tenants did not owe rent and the notice to quit was not

based on nonpayment of rent. Cf. South Boston Elderly

Residences, Inc. v. Moynahan, 91 Mass. App. Ct. 455, 469 n.14

(2017) (General Laws c. 186, § 18, created no presumption of

retaliation where notice to quit was sent more than six months

after tenant sought regulatory enforcement, and where "notice to

quit was based on nonpayment of rent"). On these facts, nothing

more was required to afford the tenants a rebuttable presumption

of retaliation.5 See G. L. c. 186, § 18. We are satisfied that,

where the judge found that the landlord failed to rebut that

presumption with clear and convincing evidence of a non-

retaliatory motive for the eviction, the judge properly found in

favor of the tenants on their claim for retaliatory eviction.

5 The landlord's policy argument that Beauregard's small
claims action "should not be considered 'protected activity'"
does not rise to the level of appellate argument. Were we to
consider that argument, which we do not, see Mass. R. A. P.
16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019), it would
be unavailing.

5
Cf. South Boston Elderly Residences, Inc., supra at 468-469 &

n.14.

The landlord's arguments to the contrary are not

persuasive. Nothing in the language of § 18 suggests that,

where a tenant makes multiple attempts to enforce or obtain

damages under a law regulating residential housing, the six-

month clock begins to run with the earliest of these attempts.

See G. L. c. 186, § 18. To the extent the landlord suggests

that our opinion in South Boston Elderly Housing, Inc., supports

this view, he is mistaken. Cf. South Boston Elderly Housing,

Inc., supra at 469 n.14 (presumption of retaliation inapplicable

where landlord alleged nonpayment of rent). Likewise, Youghal,

LLC v. Entwistle, 484 Mass. 1019, 1022, 1024 (2020), does not

aid the landlord here, as the tenants in the present case were

current on their rent when they were served with their notice to

quit. See id. (tenants not entitled to presumption of

retaliation where they owed rent when served with landlord's

notice to quit). Finally, because it is undisputed that the

landlord sent the notice to quit approximately three months

after Beauregard filed his statement of small claim, the fact

that Beauregard did not "obtain relief" in the small claim based

on the cross-metering at the apartment does not undercut the

judge's determination. See G. L. c. 186, § 18 (presumption of

retaliation attaches where landlord acts to terminate tenancy

6
"within six months after the tenant has commenced, proceeded

with, or obtained relief" [emphasis added]); ROPT Ltd.

Partnership v. Katin, 431 Mass. 601, 603 (2000) ("In

interpreting statutes we use the plain language of the statute

where the language is unambiguous"); Nuclear Metals, Inc. v.

Low-Level Radioactive Waste Mgmt. Bd., 421 Mass. 196, 212

(1995), quoting Eastern Mass. St. Ry. v. Massachusetts Bay

Transp. Auth., 350 Mass. 340, 343 (1966) ("The word 'or' is

given a disjunctive meaning unless the context and the main

purpose of all the words demand otherwise").

b. Breach of warranty of habitability. The judge in this

case found, inter alia, that the four common area defects, plus

the landlord's failure to make timely repairs to the apartment's

damaged front door, amounted to breaches of the implied warranty

of habitability. Where each of these conditions amounted to a

breach of the State sanitary code, see 105 Code Mass. Regs.

§§ 410.260(D)(2); 270(A)(6); 500(A)(1) and (2); 530(C); 540(A);

630(A)(9), (12) (2023), we discern no abuse of the judge's "wide

discretion" in that determination. Jablonski v. Clemons, 60

Mass. App. Ct. 473, 475 (2004) (Jablonski). See South Boston

Elderly Residences, Inc., 91 Mass. App. Ct. at 462, quoting

Simon v. Solomon, 385 Mass. 91, 96 (1982) ("The implied warranty

of habitability includes the promise to maintain a rented unit,

'[a]t a minimum,' in compliance with the State sanitary code").

7
c. Applicability of G. L. c. 239, § 8A. There was

similarly no error in the judge's conclusion that the common

area defects and the landlord's delayed replacement of the entry

door provided the tenants with defenses and counterclaims to

eviction under G. L. c. 239, § 8A. To benefit from § 8A, a

tenant must comply with the statute's procedural requirements.

Jablonski v. Casey, 64 Mass. App. Ct. 744, 749 (2005) (Casey).

As relevant to the landlord's argument on appeal, this means the

tenants must have demonstrated that the landlord "knew of such

conditions before the tenant[s] . . . [were] in arrears in

[their] rent." Id., quoting G. L. c. 239, § 8A. Regarding the

damage to the entry door, the tenants must also have

demonstrated that "the [landlord] [did] not show that such

condition[] w[as] caused by the tenant[s] or occupant[s] or any

other person acting under [their] control." G. L. c. 239, § 8A.

The tenants satisfied these burdens in this case.

As to notice, Beauregard testified that each of the common

area defects had existed from the beginning of the tenancy, and

that the entry door was not replaced for approximately two

months after the landlord was made aware that it had been

damaged. The judge could and did credit this testimony; thus,

his finding that the common area defects existed when the lease

was executed entitled the tenants to a presumption that the

landlord had constructive knowledge of those defects from the

8
outset of the tenancy. See South Boston Elderly Residences,

Inc., 91 Mass. App. Ct. at 463 n.6 (landlord deemed to have

constructive notice of conditions present at inception of

tenancy). Furthermore, the landlord himself testified to his

actual knowledge of the damage to the entry door and about his

delay in having the door replaced. Even if the judge credited

the landlord's explanation for the delay, there was no error in

the judge's finding that the landlord had knowledge of the

insecure entry door. See Berman & Sons, Inc. v. Jefferson, 379

Mass. 196, 197, 203-204 (1979) (applying § 8A where landlord had

actual notice of defective condition, regardless of landlord's

lack of "fault" in failing to timely remedy condition).

Turning to the substance of the counterclaims, we are

satisfied that the evidence supported the judge's implicit

finding that the tenants complied with the requirements of § 8A.

Although the tenants withheld rent after being served with the

notice to quit, the judge's findings establish that they did not

do so until after the landlord was on notice of the defective

conditions. Likewise, the judge's determination that the damage

to the entry door was caused by a person trying to break into

the apartment included his implicit finding that the landlord

"[failed to] show that [the damage to the door] [was] caused by

the tenant[s] . . . or any other person acting under [their]

control." G. L. c. 239, § 8A. Accordingly, the landlord's

9
argument that the tenants were foreclosed from raising a

condition-based defense to possession under § 8A fails.6

d. Violation of covenant of quiet enjoyment. "The implied

covenant of quiet enjoyment guarantees tenants the right to be

free from 'serious' interferences with their tenancies. . . . A

landlord violates G. L. c. 186, § 14, when its 'acts or

omissions impair the value of the leased premises.'" Jablonski,

60 Mass. App. Ct. at 476, quoting Cruz Mgmt. Co. v. Thomas, 417

Mass. 782, 789 (1994). The judge in this case found that the

common area defects amounted to violations of the covenant of

quiet enjoyment, but declined to award damages on that

counterclaim, recognizing that those damages duplicated the

damages he previously awarded the tenants for the landlord's

breach of the implied warranty of habitability. As a result,

nothing about the judge's findings or rulings as to this aspect

of the tenants' case affected the judgment. Considering the

judge's finding on the issue as an alternative holding, however,

we affirm it. Cf. Commonwealth v. Soto, 104 Mass. App. Ct. 806,

6 Additionally, the tenants had a second basis on which to
raise defenses and counterclaims under § 8A, as we have
concluded that the tenants met their burden of proving
retaliatory eviction. See G. L. c. 239, § 8A; Meikle v. Nurse,
474 Mass. 207, 211 (2016). Given our conclusion, however, we
need not address this alternative basis.

10
810-811 (2024) (differentiating dicta from alternative holdings,

which are directly related to questions at issue).

Given Beauregard's testimony about the common area defects,

and the photographs introduced into evidence depicting some of

these conditions, we are satisfied that the judge did not err in

his implicit findings that the common area defects "impair[ed]"

the rental value of the property, and that the defects were

"serious" (citations omitted). Jablonski, 60 Mass. App. Ct. at

476. Moreover, the judge's finding that the landlord had

knowledge of the common area defects from the inception of the

tenancy demonstrates at least the negligence required to support

the judge's ultimate conclusion on the question. See Casey, 64

Mass. App. Ct. at 748. Accordingly, there was no error in the

judge's conclusion that the tenants met their burden of proof on

this counterclaim.

e. General Laws chapter 93A violations. A landlord's

failure to cure violations of the State sanitary code at a

rental property within a reasonable time after notice is an

"unfair" and "deceptive" business practice under G. L. c. 93A,

§ 2. See 940 Code Mass. Regs. § 3.17(1)(a), (b), (i) (1993);

South Boston Elderly Residences, Inc., 91 Mass. App. Ct. at 470.

As we have noted, the common area defects and the condition of

the damaged entry door in this case were all violations of the

State sanitary code. The landlord was on notice of the common

11
area defects for approximately three years before he corrected

them, and the damaged entry door remained insecure for more than

a month before it was repaired. These findings are more than

sufficient to establish that the landlord's conduct was "willful

and knowing," and to justify the judge's imposition of double

damages on the tenants' G. L. c. 93A counterclaim. See Montanez

v. Bagg, 24 Mass. App. Ct. 954, 956 (1987) ("The 'willful or

knowing' requirement of § 9 (3) [of c. 93A], goes not to actual

knowledge of the terms of the statute, but rather to knowledge,

or reckless disregard, of conditions in a rental unit which,

12
whether the defendant knows it or not, amount to violations of

the law").7

Judgments entered December
14, 2023, and December 19,
2023, affirmed.

By the Court (Vuono, Meade &
Hand, JJ.8),

Clerk

Entered: January 24, 2025.

7 The tenants have requested an award of appellate
attorney's fees. They are entitled to attorney's fees in
connection with defending the landlord's appeal from the
judgment on the c. 93A claim. The tenants may, within fourteen
days of the issuance of the decision in this case, submit a
detailed and supported submission of the fees sought in
connection with the c. 93A claim only, in accordance with the
procedures set forth in Fabre v. Walton, 441 Mass. 9, 10-11
(2004). The landlord will have fourteen days thereafter to file
a response. Otherwise, the request for attorney's fees is
denied.

8 The panelists are listed in order of seniority.

13