One North of Boston LLC v. Dhiren Thakkar.

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-756

ONE NORTH OF BOSTON LLC

vs.

DHIREN THAKKAR.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff (landlord) brought this action to evict the

defendant (tenant) from an apartment for nonpayment of rent.

The tenant filed counterclaims for breach of the warranty of

habitability and the covenant of quiet enjoyment. After a jury-

waived trial in the Housing Court, the judge found in favor of

the landlord for unpaid rent and in favor of the tenant on his

counterclaims. The landlord appeals, arguing the judge erred in

ruling that the landlord breached the warranty of habitability

and the covenant of quiet enjoyment. We affirm.

Background. We summarize the judge's findings of fact

relevant to this appeal, supplemented with undisputed facts from

the record. See Allison v. Eriksson, 479 Mass. 626, 627 (2018).
The parties signed a one year lease which began on October 14,

2022, and ended on October 13, 2023. The rent was $2,670, due

at the first of each month.

Upon moving in, the tenant noticed water damage on the

kitchen flooring, and that the "3-layer flooring by the washing

machine" was completely rotted and the top layer was "puckering

up." Approximately two weeks after moving in, the tenant sent

an e-mail message to the landlord's management with his signed

"Notice of Condition," which noted the damage on the floor and

that "at least one [of the hardwood floors] is completely

rotted." A leasing agent thereafter contacted the tenant, and,

after a series of communications, a work order was "opened up"

in February 2023. Someone came to look at the floor sometime

after that, but the damage was not fixed.1

On June 26, 2023, the tenant sent a demand letter to the

landlord requesting that the floor be repaired. In the letter,

In November 2022, the tenant showed the landlord's
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maintenance team that the hot water heater was leaking brown
liquid; the team patched it rather than replace it. In February
2023, the tenant's hot water heater stopped working. On Sunday,
February 19, 2023, the tenant notified the landlord via an
online service request. The heater was removed and replaced two
days later, on Tuesday, February 21, 2023. Although the tenant
raised this issue in his counterclaims, and the judge concluded
that it was a breach of the warranty of habitability, the
damages awarded to the tenant were based on the landlord's delay
in repairing the kitchen floor, because they were greater than
the damages warranted by the brief delay in repairing the hot
water heater.

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the tenant detailed an incident in which his sock got caught in

the rotted flooring. The day after the tenant mailed the

letter, Caitlin Bishop (Bishop), the landlord's senior property

manager, sent an e-mail message to the tenant discussing the

work that needed to be done in the apartment. Bishop suggested

the flooring work could be completed on June 30, 2023, but the

tenant was not available on that date, so they discussed

rescheduling. On July 6, 2023, the landlord sent a letter to

the tenant advising him the repair of the floors would take

place on July 19, 2023. After this communication, the tenant

began speaking directly with Bishop's regional manager.

In July 2023, before the floor had been repaired, the

tenant contacted the city of Chelsea's inspectional services

department (ISD). ISD conducted an investigation on July 21,

2023, and found violations for, among other things, the damage

to the flooring. On August 1, 2023, Bishop sent another letter

to the tenant advising him that a full floor replacement would

be completed on August 9, 2023. She also explained that because

the entire kitchen floor would be replaced, the tenant's

property would be moved into his bedroom during the repair. The

tenant objected to moving his possessions and also refused to

consent to having his property moved to an off-site storage

unit. The tenant eventually proposed a repair date of August

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16, 2023, and the repair was completed on that date. ISD

conducted a reinspection on August 17, 2023, and found the

violation for the damaged flooring had been corrected.

The tenant did not pay rent in July 2023. The landlord

served a notice to quit to the tenant on July 7, 2023. The

landlord commenced this summary process action on August 14,

2023.

On the basis of these facts, the judge concluded that the

landlord had proven damages in the amount of $13,350 for unpaid

rent. However, the judge also concluded the tenant proved his

counterclaims for a breach of the warranty of habitability and a

breach of the covenant of quiet enjoyment. The judge found "no

credible evidence supporting any other counterclaim or defense

of the [t]enant." The judge concluded that the tenant was

entitled to $8,010 in damages -- three times his monthly rent.

Subtracting this amount from the $13,350 to which the landlord

was entitled, the judge determined that the landlord was

entitled to $5,340, plus interest and costs. Finally, the judge

ordered that if the tenant paid this amount within seven days,

judgment for possession would enter for the tenant. The tenant

made payment within the seven-day period.

Final judgment entered on January 16, 2024. On the same

day, the landlord submitted a "Motion for Clarification and/or

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Reconsideration" of the judge's order. On February 16, 2024,

the judge issued a memorandum and order denying the landlord's

motion. The landlord appeals.2

Discussion. The landlord argues that the judge erred in

concluding that he materially breached the implied warranty of

habitability and the covenant of quiet enjoyment. "On review of

a jury-waived proceeding, we accept the judge's findings of fact

unless they are clearly erroneous. . . . We review the judge's

rulings on questions of law de novo" (citation omitted). South

Boston Elderly Residences, Inc. v. Moynahan, 91 Mass. App. Ct.

455, 462 (2017).

1. Breach of warranty of habitability. "The existence of a

material breach [of the warranty of habitability] will be a

question of fact to be determined in the circumstances of each

case." Boston Hous. Auth. v. Hemingway, 363 Mass. 184, 200

2 The landlord entered his notice of appeal on January 29,
2024. The judge denied the motion for reconsideration on
February 16, 2024, and the landlord did not file a subsequent
notice of appeal. Because the landlord did not file a new
notice of appeal after the denial of the motion for
reconsideration, he did not comply with Mass. R. A. P. 4 (a), as
appearing in 481 Mass. 1606 (2019). However, we may
nevertheless decide the appeal where the concerns underlying
rule 4 (a) are not implicated; that is, "no action on the appeal
had yet been taken before the motion for reconsideration was
decided." Roch v. Mollica, 481 Mass. 164, 165 n.2 (2019). The
appeal has been briefed by both parties and neither party has
raised this issue. We therefore choose to exercise our
discretion to decide the appeal.

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(1973). "Where a tenant has proved a breach of the warranty of

habitability, he is entitled to damages that can offset a

landlord's claim of unpaid rent." South Boston Elderly

Residences, Inc., 91 Mass. App. Ct. at 462. The landlord does

not dispute the floor defects underlying the tenant's

counterclaims or the timeframe in which they were repaired.

Rather, the landlord disputes the judge's ruling that these

defects were sufficiently "material" to constitute a breach of

the covenant of quiet enjoyment and the implied warranty of

habitability warranting damages. "The question is how much the

defects reduced the value of the residence." Id.

The judge was entitled to consider several factors in

determining whether the landlord breached the warranty of

habitability; for example, the length of time the defects

persisted, whether and when the landlord had notice, and the

difficulty of resolving the defects. See Jablonski v. Casey, 64

Mass. App. Ct. 744, 746 (2005). We discern no error, much less

clear error, in the judge's application of these factors. The

evidence supported the judge's finding that the tenant notified

the landlord of the rotted flooring on October 20, 2022, when

the tenant sent his signed notice of condition. Likewise, the

evidence supported the judge's finding that the landlord did not

replace the floors until August 16, 2023. The judge permissibly

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inferred that the landlord was aware of the condition nine and

one-half months before making repairs.3

Additionally, the evidence supported the judge's finding

that the condition was not just a technical violation of the

State sanitary code but created a health and safety risk by

affecting the tenant's ability to safely traverse within his

unit. Accordingly, we discern no basis to disturb the judge's

ultimate ruling that the landlord's lengthy delay in repairing

the flooring breached the warranty of habitability: "what

should have been a minor inconvenience for a limited period of

time became a larger issue as time progressed because of the

[landlord]'s inaction." See Goreham v. Martins, 485 Mass. 54,

63 (2020) ("The warranty of habitability is not intended to

punish landlords for misbehavior but rather to ensure that

tenants receive what they are paying for: a habitable place to

live").

2. Covenant of quiet enjoyment. A landlord violates the

covenant of quiet enjoyment through "acts or omissions [that]

3 As noted above, Bishop testified, without contradiction,
that when she learned of the flooring problem on June 28, 2023,
she moved quickly to schedule a repair, and the tenant
contributed at least some of the delay from that point until the
date of the repair, August 16, 2023. We note that Bishop's
efforts predated the tenant's involvement of ISD. Nevertheless,
the judge's findings are still supported by the landlord's
undisputed delay of more than eight months in attempting to
repair the flooring.

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impair the value of the leased premises." Cruz Mgt. Co. v.

Thomas, 417 Mass. 782, 789 (1994). In order to prevail on a

claim for breach of the covenant of quiet enjoyment, a tenant

must show there was a "serious interference[] with [the] tenancy

. . . that substantially impair[s] the character and value of

the leased premises" (quotations and citation omitted). Rahman

v. Federal Mgt. Co., 23 Mass. App. Ct. 701, 705 (1987). The

tenant must also establish that the landlord was on notice of

the defect and failed to remedy it. See Al-Ziab v. Mourgis, 424

Mass. 847, 851 (1997). "In analyzing whether there is a breach

of the covenant, we examine the landlord's conduct and not his

intentions." Doe v. New Bedford Hous. Auth. 417 Mass. 273, 285

(1994). The key inquiry is whether there was a "serious

interference with [the] tenancy," id., and if so, whether it was

a "natural and probable consequence of what the landlord did,

what he failed to do, or what he permitted to be done" (citation

omitted). Id.

Here, the judge found sufficient evidence that the landlord

was on notice of the damage to the flooring on October 20, 2022,

but failed to remedy that damage until mid-August 2023. While

it may be true that the landlord had tried to repair the floors

starting in late June 2023,4 and was delayed due to discussions

4 See note 3, supra.

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over scheduling, the landlord offered no reasonable

justification for the eight months' delay, from November 2022

through June 2023, in addressing the condition. See Cruz Mgt.

Co., 417 Mass. at 788-790. As the judge aptly observed, the

landlord could have provided any number of temporary solutions

while awaiting the total floor replacement to mitigate the

danger presented by the rotting floor. Instead, due to the

landlord's "cavalier attitude,"5 this issue lingered for at

least eight months, becoming a "serious interference[] with

[the] tenancy" that "substantially impair[ed] the character and

value of the leased premises" (quotation and citations omitted).

Rahman, 23 Mass. App. Ct. at 705. We therefore affirm the

5 We defer to the judge's finding that the landlord's
management team was dismissive of and condescending to the
tenant's claims during the trial, which supported an inference
that the landlord's delay in initiating repairs stemmed from its
own negligence. See Andover Hous. Auth. v. Shkolnik, 443 Mass.
300, 306 (2005) ("we give due regard to the judge's assessment
of the witnesses' credibility").

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judge's ruling that the landlord breached the covenant of quiet

enjoyment.

Judgment entered January 16,
2024, affirmed.

By the Court (Vuono, Henry &
Wood, JJ.6),

Clerk

Entered: July 11, 2025.

6 The panelists are listed in order of seniority.

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