Thiago Goncalves v. Joseph Caustrita.

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

23-P-755

THIAGO GONCALVES

vs.

JOSEPH CAUSTRITA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a bench trial in this no-cause eviction case, the

tenant, Joseph Caustrita, appeals from a summary process

judgment in favor of the landlord, Thiago Goncalves. As a

defense to eviction, G. L. c. 239, § 8A, the tenant brought

counterclaims alleging that the landlord (1) violated the last

month's rent statute; (2) breached the implied warranty of

habitability by delaying in making certain repairs; and

(3) committed unfair or deceptive business practices under G. L.

c. 93A. The tenant argues that the judge made errors of law in

ruling that the tenant had not proven that his counterclaims

were a valid defense to eviction. We conclude that the tenant

was entitled to five percent interest per year on his last
month's rent, and that he proved that at least some of the

defects in the apartment breached the implied warranty of

habitability. Accordingly, we reverse the portion of the

judgment finding in favor of Goncalves on those counterclaims

and vacate the remainder.

Background. The tenant lives in an apartment in a four-

unit building in Lowell, where he is a tenant at will. On

October 8, 2021, the former owner of the building served the

tenant with a notice to quit.

On November 3, 2021, the landlord bought the building,

subject to a mortgage requiring, with exceptions not raised in

the Housing Court, that he live in it as his principal

residence. On December 6, the landlord served the tenant with a

summary process complaint. The tenant filed an answer and

counterclaims alleging, among other things, that the landlord

had violated the last month's rent statute, G. L. c. 186,

§ 15B (2) (a), as amended through St. 2004, c. 417, § 1;

breached the implied warranty of habitability; and engaged in

unfair or deceptive acts or business practices, G. L. c. 93A.

The answer further alleged that those counterclaims amounted to

defenses to eviction under G. L. c. 239, § 8A.

A two-day bench trial took place in December 2022. On the

first morning of trial, the parties entered a stipulation in

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which the landlord acknowledged receipt of $9,350 in residential

assistance for families in transition (RAFT) funds, as well as

"$850 in cash." After trial, the judge concluded that "[the

tenant] did not assert viable defenses to the [landlord]'s claim

for possession." Judgment entered for the landlord in the

amount of $216.54.

The tenant moved to alter or amend the judgment, Mass. R.

Civ. P. 59 (e), 365 Mass. 827 (1974), because, among other

things, the judge's memorandum of decision did not address the

tenant's claim that the landlord had violated the last month's

rent statute, G. L. c. 186, § 15B (2) (a). The judge denied the

rule 59 (e) motion. The tenant appeals.

Discussion. "On review of a jury-waived proceeding, we

accept the judge's findings of fact unless they are clearly

erroneous" (citation omitted). South Boston Elderly Residences,

Inc. v. Moynahan, 91 Mass. App. Ct. 455, 462 (2017). We

supplement those factual findings "by relaying what certain

documentary evidence in the record stated." New Bedford Housing

Auth. v. K.R., 97 Mass. App. Ct. 509, 512 (2020). "We review

the judge's rulings on questions of law de novo" (citation

omitted). South Boston Elderly Residences, Inc., supra.

1. Interest on last month's rent. The tenant argues that

he proved his counterclaim that the landlord violated G. L.

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c. 186, § 15B (2) (a), by failing to pay him interest on the

last month's rent that the landlord had received from the prior

owner of the building. As the plaintiff-in-counterclaim, the

tenant bore the burden to prove by a preponderance of the

evidence that the landlord violated the last month's rent

statute. See Scofield v. Berman & Sons, Inc., 393 Mass. 95,

114-115 (1984).

The last month's rent statute provides that the landlord

shall "pay interest at the rate of five per cent per year or

other such lesser amount of interest as has been received from

the bank where the deposit has been held." G. L. c. 186,

§ 15B (2) (a). Passing over whether the landlord is statutorily

obligated to place the tenant's last month's rent in a bank

account,1 we conclude that the landlord was nonetheless required

to pay the tenant five per cent interest per year on the last

1 In Attorney General v. Brown, 400 Mass. 826, 833 n.8
(1987), the Supreme Judicial Court stated that a tenant's
security deposit and last month's rent must both be placed in an
interest-bearing account in the tenant's name "and the tenant
must be paid 5% annual interest." In contrast, we have
construed § 15B (2) (a) to mean that "[t]he landlord is not
required to set aside the tenant's last month's rent or to place
it in a bank account." Neihaus v. Maxwell, 54 Mass. App. Ct.
558, 561 n.6 (2002). We need not resolve the discrepancy,
because we conclude that in these circumstances the landlord
owed the tenant five percent interest on the last month's rent.

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month's rent.2 G. L. c. 186, § 15B (2) (a). See Ryan v. Mary

Ann Morse Healthcare Corp., 483 Mass. 612, 616 (2019); Karaa v.

Yim, 86 Mass. App. Ct. 714, 724 (2014).

The tenant testified that when he moved into the apartment

in 2013, he paid $850 in last month's rent to the former owner

of the building; when the landlord bought the building, the

landlord did not give the tenant any notice concerning the last

month's rent; and the tenant never received any interest on the

last month's rent, either from the former owner or from the

landlord.

Called by his own counsel in his case-in-chief and again in

rebuttal, the landlord did not address in his direct testimony

the tenant's counterclaim for interest on the last month's rent.3

On cross-examination of the landlord, the tenant's counsel

elicited that when the landlord bought the building, he received

from its former owner the tenant's last month's rent in the

2 If it had been shown that the last month's rent was held
in a bank paying less than five per cent interest, the landlord
would owe the tenant only "such lesser amount of interest as has
been received from the bank where the deposit has been held."
G. L. c. 186, § 15B (2) (a). On the record before us, those
facts were not shown, and so we do not consider the issue.

3 The landlord has not argued, in the Housing Court or
before us, that G. L. c. 186, § 15B (7A), imposed the burden on
the former owner of the building to pay the interest on the last
month's rent. See Vinton v. Demetrion, 19 Mass. App. Ct. 948,
949 (1985). We do not reach that issue.

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amount of $850, which was "being held" on behalf of the tenant.4

The landlord acknowledged that he did not provide the tenant

with any notice that he was holding the last month's rent. When

the tenant's counsel asked if the landlord had paid the tenant

any interest on the last month's rent, the judge interrupted,

saying, "Well, this witness testified already. This is

rebuttal." Although the landlord's counsel did not object, the

judge precluded the tenant's counsel from cross-examining the

landlord about whether he paid the tenant interest on the last

month's rent.

After judgment for possession entered for the landlord, the

tenant moved to reconsider on the ground that the judge had not

addressed the last month's rent counterclaim, among other

things. The judge denied the motion to reconsider, concluding

that the motion did not "indicate any error of law."

In those circumstances, where the tenant presented

uncontroverted evidence that the landlord failed to pay him

interest on the last month's rent, we conclude that the tenant

proved that the landlord violated G. L. c. 186, § 15B (2) (a).

4 Just before trial, the parties stipulated that "$850 in
cash" was received by the landlord on December 6, 2022. The
record does not state whether that was the last month's rent.

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2. Breach of implied warranty of habitability. The tenant

argues that he was entitled to possession of the apartment

because the landlord breached the implied warranty of

habitability by violating the sanitary code and delaying

necessary repairs on the apartment for five months from November

2021 to April 2022.

The judge heard the testimony of both the landlord and the

tenant about the condition of the apartment when the landlord

bought the building. The judge also reviewed documentary

evidence including a checklist that the parties signed in

November 2021 documenting the condition of the apartment. The

checklist documented problems including missing or damaged

screens in the living room, a "small sink leak" in the kitchen,

and that the toilet "moves -- needs caulking." The landlord

testified that the items on the checklist were "just cosmetic

changes and small repairs" that did not "need[] to be addressed

immediately." The tenant testified that, in addition to the

items on the checklist, at their November meeting he also

informed the landlord of problems that were not included on the

checklist including water damage to the kitchen ceiling and mold

in the bathtub.5

5 In response to questions about when he informed the
landlord about certain conditions, the tenant often testified
about telling the former owner about those conditions. The

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The landlord testified that in March 2022, inspectors from

the city board of health visited the apartment and told him that

he was required to make repairs, including caulking around the

toilet that moved and fixing the leaking kitchen sink.6 The

landlord testified that although those items had been on the

November 2021 checklist, he considered them "cosmetics" and so

he did not make those repairs until April 2022.

A sanitary code violation, particularly a minor one, does

not necessarily amount to a breach of the implied warranty of

habitability. See South Boston Elderly Residences, Inc., 91

Mass. App. Ct. at 463-464. See also McKenna v. Begin, 5 Mass.

App. Ct. 304, 308 (1977) (tenant not entitled to damages for

minor code violations). "The emphasis is on whether the

premises are fit for human habitation, not merely on whether the

landlord committed a code violation." Goreham v. Martins, 485

Mass. 54, 65 (2020). However, plumbing defects like a

malfunctioning sink, if not corrected within five days after

notice, "shall be deemed conditions which may endanger or impair

the health, or safety and well-being of a person . . . occupying

judge found that the tenant did not prove that the former owner
informed the landlord of those conditions.

6 Included in the record appendix is a March 2022 report of
a city building inspector. That report was not marked as an
exhibit at trial, and so we do not consider it.

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the premises." 105 Code Mass. Regs. § 410.750 (2005),

§ 410.750(O)(3) (2007).

The judge found that "the conditions [the tenant]

complained of were not so significant as to impair the

habitability of the [p]remises." The judge further found that

when the tenant did inform the landlord of "certain conditions

such as a malfunctioning sink, dirty tub, missing screens, [the

landlord] repaired these promptly in April of 2022." Based on

the landlord's testimony and the checklist showing that he was

aware since November 2021 of the toilet that moved and the

leaking kitchen sink, we conclude that those conditions breached

the implied warranty of habitability, and further that the

landlord did not repair them promptly. See Ndoro v. Torres, 105

Mass. App. 128, 131 (2024) (breach based on undisputed evidence

that landlord was aware of conditions, including rotting

bathroom floor and water leaks, that she failed to repair for

months). The case must therefore be remanded to determine the

amount of damages to which the tenant is entitled. See Boston

Housing Auth. v. Hemingway, 363 Mass. 184, 203 (1973).

3. G. L. c. 93A claim. The tenant contends that the

landlord's violation of the last month's rent statute and breach

of the implied warranty of habitability amounted to unfair or

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deceptive business practices in violation of the consumer

protection statute, G. L. c. 93A.

As discussed, we have concluded that the landlord violated

the last month's rent statute and breached the implied warranty

of habitability. Because the judge did not address the last

month's rent issue and concluded that the landlord did not

breach the implied warranty of habitability, the judge likewise

did not discuss whether either of those claims amounted to a

G. L. c. 93A violation. See Ndoro, 105 Mass. App. at 134

(breach of warranty of habitability violated G. L. c. 93A). The

tenant's G. L. c. 93A counterclaim remains for the judge to

decide on remand.

Conclusion. As we have concluded that Caustrita was

entitled to judgment on his counterclaims regarding interest on

his last month's rent and breach of the implied warranty of

habitability, we reverse so much of the judgment finding in

favor of Goncalves and the order denying Caustrita's motion to

amend the judgment on those counterclaims and judgment shall be

entered for Caustrita. The remainder of the judgment

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is vacated, and the case is remanded to the Housing Court for

further proceedings consistent with this memorandum and order.7

So ordered.

By the Court (Henry, Grant &
D'Angelo, JJ.8),

Clerk

Entered: February 5, 2025.

7 Deciding as we do, we do not reach the tenant's argument
that the landlord cannot recover possession of the apartment
because the amount due to the tenant equals or exceeds the
amount due to the landlord. See Ferreira v. Charland, 103 Mass.
App. Ct. 194, 200 (2023) (en banc) ("If the judge finds that the
amount due to the tenant equals or exceeds the amount due to the
landlord, the landlord cannot recover possession").

As for the tenant's request for appellate attorney's fees
and costs pursuant to G. L. c. 186, § 15B, and G. L. c. 93A,
§ 9, we decline to award them. Section 15B (2) (a) would permit
an award of reasonable attorney's fees if the landlord failed to
pay interest on the last month's rent "within thirty days after
the termination of the tenancy." From the record before us, it
appears that the tenant is still in possession of the apartment,
and so that statute does not apply. Contrast Slater v. Traynor
Mgt., Inc., 101 Mass. App. Ct. 705, 716 (2022) (awarding
appellate attorney's fees under attorney's fees provision of
security deposit statute, G. L. c. 186, § 15B [7]). And because
the tenant's 93A claim remains undecided, he is not entitled to
appellate attorney's fees under that statute.

8 The panelists are listed in order of seniority.

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