PRI OLD MILL GLEN LLC v. JAMES SAWYER & 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-594

PRI OLD MILL GLEN LLC

vs.

JAMES SAWYER & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff (landlord) brought this summary process

action to evict the defendants (tenants) from Federally-

subsidized housing due to nonpayment of rent. The tenants

answered with defenses and counterclaims. After a jury-waived

trial in the Housing Court, the judge awarded possession to the

landlord and entered an order for judgment in favor of the

landlord for possession and the unpaid rent. The judge

concluded the tenants failed to establish their defenses or

counterclaims. The tenants appeal, arguing that the judge erred

in approving a stipulation between the parties, finding that the

1 Tyler Sawyer.
landlord had established a prima facie case for possession,

failing to grant one of the tenants a reasonable accommodation,

and denying the counterclaims. We affirm.

Background. The tenants, James Sawyer (the father) and his

son Tyler Sawyer (the son), moved into the premises in 2019. In

2022, the tenants re-executed the agreement for a subsidized

tenancy. In November 2022, the landlord served a notice to quit

to "James Sawyer And all Occupants," citing nonpayment of rent

for July, October, and November 2022. The landlord commenced

this eviction action in January 2023, naming only the father as

the defendant and citing nonpayment of rent in September,

October, November, and December 2022. The father answered,

asserting counterclaims and defenses including improper

termination, breach of the implied warranty of habitability,

breach of quiet enjoyment, and violation of the consumer

protection law (G. L. c. 93A).

In June 2023, the landlord served on the father, the son,

and another2 a second notice to quit, citing nonpayment of rent

for July 2022 and from October 2022 to June 2023. In August

2023, the landlord filed a motion to amend the summary process

2 A third tenant also lived in the premises but moved out
prior to the commencement of the summary process action and thus
is not a party to this appeal.

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complaint to add the son as a named defendant and add the June

2023 notice to quit to the docket. Before a hearing on the

motion, mediation between the parties resulted in a stipulation

in which the tenants assented to the motion to amend in exchange

for an immediate trial date.

At the bench trial, the tenants presented their case pro

se. The father testified to issues in the apartment, including

issues with the bathtub, an odor in the bathroom vent, and odor

and hygiene issues stemming from a neighbor. The son sat in the

gallery and did not testify.

In addition to the father's testimony, the tenants

submitted municipal board of health inspection reports.

Following the first inspection in October 2022, the board of

health cited the landlord for three sanitary code violations:

(1) a lack of suction from the bathroom ventilation system, (2)

a structural integrity issue in the bathroom, and (3) carpet

separation causing an accident hazard. Another inspection in

January 2023 revealed that two violations had been addressed but

that the bathroom ventilation system had not. Later that month,

the board of health cited the landlord for three new violations:

a slow-draining bathtub, a showerhead flange separating from the

wall, and a loose lock on the front door. An inspection report

from February 2023 stated that all the previous violations had

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been corrected. An inspection report from July 2023 stated that

the tenants were concerned about an odor coming from the

bathroom vent, but the inspector did not smell it.

Following a bench trial, the Housing Court judge found that

the tenants owed the landlord $2,815 in damages, plus court

costs, and granted possession to the landlord. In doing so, the

judge rejected the tenants' claims alleging violation of G. L.

c. 239, § 8A, breach of warranty of habitability, interference

with quiet enjoyment, and violation of G. L. c. 93A. Judgment

entered, and the tenants filed a notice of appeal. The tenants

subsequently obtained counsel and filed a motion to reconsider,

which was denied. The tenants then filed a second notice of

appeal.

Discussion. On review of a judgment after a bench trial,

we accept the judge's findings of fact unless clearly erroneous

and review the rulings of law de novo. See South Boston Elderly

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

Discretionary decisions are reviewed for an abuse of discretion,

which will only be found if "the judge made a clear error of

judgment in weighing the factors relevant to the decision, such

that the decision falls outside the range of reasonable

alternatives" (quotation and citation omitted). L.L. v.

Commonwealth, 470 Mass. 169, 185 n.27 (2014).

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1. Approval of the stipulation. The tenants argue that

the judge abused his discretion in approving, without a hearing

or colloquy, the stipulation in which the tenants assented to

the motion to amend the summary process complaint to include the

son. However, the tenants did not raise this argument below or

in their motion to reconsider (where they were represented by

counsel), and therefore the argument is waived. See Weiler v.

PortfolioScope, Inc., 469 Mass. 75, 94 (2014) (arguments raised

for first time on appeal considered waived).

Nevertheless, the tenants urge us to reach the merits

because the responsibility of courts to ensure that indigent and

disabled tenants do not unwittingly waive procedural rights is a

matter of public interest and is likely to arise in the future.

See New Bedford Hous. Auth. v. Olan, 435 Mass. 364, 372 (2001)

(considering waived issue of notice of termination where there

was uncertainty over question, it involved matter of public

interest likely to arise in future, and issue was fully

briefed). We decline to do so on this record, especially given

that the tenants were represented by counsel when they moved to

reconsider and still did not raise any challenge to the

stipulation. We note also that the Supreme Judicial Court has

recognized that court-employed housing specialists who work as

"impartial mediators" help parties, especially pro se tenants,

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navigate the summary process procedure so that they do not

unwittingly waive procedural rights. See Adjartey v. Central

Div. of the Hous. Court Dep't, 481 Mass. 830, 838-840, 856 n.17

(Appendix) (2019). In this case, a housing specialist reviewed

the stipulation with the tenants and signed it, thereby

mitigating the risk of an unknowing waiver.

2. The landlord's prima facie case for possession. The

judge determined that the landlord established a prima facie

case for possession. The tenants disagree, asserting that the

notice to quit, served on them on June 23, 2023, was legally

insufficient. Their claim is unavailing.

"[L]egally effective notice to quit is a condition

precedent to a summary process action and part of the landlord's

prima facie case." Cambridge St. Realty, LLC v. Stewart, 481

Mass. 121, 122 (2018). A notice to quit must substantially

comply with statutory and contractual requirements; that is, it

cannot contain a material error or omission such that the error

or omission has a "meaningful practical effect." Id. at 130-

131. Where a tenant does not receive a legally effective or

timely notice to quit, "the summary process complaint must be

dismissed." Youghal, LLC v. Entwistle, 484 Mass. 1019, 1022

(2020).

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Here, "James Sawyer And all Occupants" were served with a

notice to quit on November 4, 2022. The summary process summons

and complaint was served on the father on December 29, 2022. On

June 23, 2023, the landlord served a new notice to quit on both

the father and the son. Neither tenant identified any error or

omission in either notice to quit before the landlord filed a

motion to amend the summary process complaint in August 2023, to

add the son as a defendant and enter the June 23, 2023, notice

to quit on the docket.

As noted above, prior to trial, the parties signed a

stipulation, with the participation of a housing court

specialist, in which the tenants assented to the landlord's

motion to amend the complaint to add the son as a defendant.

The tenants were free to do so. See Dacey v. Burgess, 491 Mass.

311, 315 (2023) (parties in summary process action are free to

negotiate a settlement "rather than seek a more favorable

litigated judgment" [citation omitted]). At no time before or

after signing the stipulation did either tenant identify a

material error or omission in the June 2023 notice to quit that

had a meaningful practical effect; additionally, at the

beginning of the trial, the father agreed that the landlord had

established a prima facie case. Accordingly, the judge did not

err in accepting the June 2023 notice to quit and finding the

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landlord had established the prima facie case against both

tenants.

3. Failure to provide the son an accommodation to testify.

The tenants argue, for the first time on appeal, that the judge

abused his discretion in failing to provide the son an

accommodation to allow him to testify. Once again, the tenants

did not raise the issue at trial or in their motion to

reconsider. Even so, the tenants argue there were four points

at which the judge was made aware of the son's disability and

his desire to communicate with the court: (1) when the

landlord's attorney represented that the son was "very

disabled," (2) when the father told the judge his son has

autism, (3) when the father testified his "son can testify to"

the horrible smell, and (4) when the son, who was seated in the

gallery, raised his hand during a colloquy between the father

and the judge.

A judge shall provide reasonable accommodations to

witnesses that have alerted the court that they have a

disability requiring accommodation. Adjartey, 481 Mass. at 848-

849. However, at no point during the trial did anyone notify

the judge that the son was requesting an accommodation.

Notably, the father never called the son as a witness. The

passing remarks about the son's disability and the fact that he

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raised his hand did not constitute a request for an

accommodation so that the son could testify. Indeed, even when

the son raised his hand during an exchange between the judge and

the father, the father did not ask the judge to permit the son

to testify or even suggest that he might have relevant

information. The failure to request an accommodation

constitutes waiver of the issue. See id. at 846-849 (party must

put judge on notice of request for reasonable accommodation to

allow judge to make adequate findings to permit appellate

review).

Moreover, as we have mentioned, the tenants obtained

counsel after the trial, who filed a motion to reconsider.

Counsel did not raise this issue in that motion. If counsel had

done so, he would have placed the judge on notice of the issue

and given the judge the opportunity to "make findings adequate

to permit [appellate] review" (citation omitted). Adjartey, 481

Mass. at 848. Where neither the tenants nor counsel brought the

issue to the judge's attention, we do not reach it here in the

first instance. See Weiler, 469 Mass. at 94.

4. The tenants' counterclaims. The tenants argue that the

judge erred in concluding the tenants failed to establish, by a

preponderance of the evidence, their counterclaims of breach of

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the warranty of habitability and interference with quiet use and

enjoyment. We discern no error.

a. The breach of the warranty of habitability. The

tenants alleged that the landlord had breached the implied

warranty of habitability by not repairing or addressing

defective infrastructure, the presence of insects, the defective

lock, and the plumbing problems. The judge concluded that, to

the extent that conditions existed in the tenants' apartment

that violated the sanitary code, the violations were de minimis.

The judge then found that the tenants failed to establish, by a

preponderance of the evidence, that the landlord breached the

warranty of habitability. On appeal, the tenants argue this was

reversible error.

In their motion to reconsider, the tenants argued the judge

should have given more weight to the father's testimony and the

inspection reports. The judge denied the motion.

In "reviewing the trial judge's decision, we accept [his]

findings of fact as true unless they are clearly erroneous, and

we give due regard to the judge's assessment of the witnesses'

credibility" (citation omitted). Saipe v. Sullivan & Co., Inc.,

487 Mass. 1001, 1004 (2021).

The evidence at trial supported the judge's findings and

legal conclusions. The implied warranty of habitability

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requires the landlord to maintain the premises in compliance

with the State sanitary code. South Boston Elderly Residences,

Inc., 91 Mass. App. Ct. at 462. "Nevertheless, the existence of

a code violation by itself does not necessarily entitle a tenant

to a finding that a material breach of the warranty of

habitability has occurred." Id. at 463-464. A sanitary code

violation "may provide compelling evidence that a dwelling is

not habitable"; however, the determinative issue is "whether the

premises are fit for human habitation, not . . . whether the

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

Mass. 54, 65 (2020). "[T]he warranty of habitability applies

only to substantial violations or significant defects"

(quotation and citation omitted). Id.

There was ample evidence that the violations of the

sanitary code were not substantial or significant. Indeed, the

father admitted that many of the violations had been fixed and

his main concern at trial was the slow-draining tub. The

reports confirmed that the violations were repaired. The judge

could credit the testimony of the property manager, who

described the nature of the code violations. The judge did not

clearly err in deciding that, even where code violations or

defects existed, they were not sufficiently "significant" or

"substantial" to justify finding a breach of the warranty of

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habitability. See McAllister v. Boston Hous. Auth., 429 Mass.

300, 305 (1999), and cases cited (illustrating substantial and

significant violations such as apartments lacking adequate heat,

hot water and fire escapes, and infested with vermin; or

apartments repeatedly flooded with water and sewage).

b. Interference with quiet enjoyment. The judge found

that the tenants failed to establish by a preponderance of the

evidence that the landlord interfered with their quiet enjoyment

of the apartment. At trial, the father testified that his

neighbor's lack of hygiene was creating an odor and attracting

the presence of pests, which the landlord was doing nothing to

fix. The judge concluded that the neighbor's hygiene was not

the landlord's responsibility. The tenants argue that this was

legal error.

Whether the landlord could face liability for the actions

of the neighbor is a question of law we review de novo. See

Moretalara v. Boston Hous. Auth., 99 Mass. App. Ct. 1, 7 (2020).

As the judge pointed out at trial, there is no authority for the

proposition that a landlord can tell a tenant when to shower or

change clothes. Because the tenants have not explained what the

landlord could have done to change the neighbor's behavior, the

argument does not rise to the level needed to permit appellate

review. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481

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Mass. 1628 (2019). See also Tedeschi-Freij v. Percy Law Group,

P.C., 99 Mass. App. Ct. 772, 781 (2021) (claims not supported by

sufficient legal argument or factual argument do not rise to

level of appellate argument).3

Judgment affirmed.

Order denying motion for
reconsideration affirmed.

By the Court (Neyman, Shin &
Wood, JJ.4),

Clerk

Entered: May 14, 2025.

3 We deny the landlord's request for an award of costs.

4 The panelists are listed in order of seniority.

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