ANGELA GEWECKE & Others v. EVAN SMITH.

• Court: Massachusetts Appeals Court
• Decided: February 14, 2025
• Docket: 23-P-1014
• Status: Unpublished

Opinion

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-1014

ANGELA GEWECKE & others1

vs.

EVAN SMITH.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Evan Smith, appeals from a judgment issued

by a judge of the Housing Court in favor of the plaintiffs for

possession of 42R Cape Street in Goshen (premises). We affirm.

Background. The trial judge found the following facts.

Evan Smith is the brother of Jamie Smith, Molly Smith, and

Johannah Roberts.2 Angela Gewecke is their aunt. The premises

are part of a parcel of land (property), which at the time of

trial, was owned in equal parts by Gewecke, on the one hand, and

Jamie, Molly, and Johannah on the other hand. In 2017, Gewecke

1 Jamie Smith, Molly Smith, and Johannah Roberts.

2Because some of siblings share a last name, we refer to all of them hereafter by their first names. allowed Evan to move into the premises. In exchange, Evan

agreed to pay for his utilities at the premises. Gewecke

intended to allow Evan to live at the premises until Molly moved

to the premises from New Jersey. During much of the relevant

time period, Evan sporadically resided at the premises. Jamie

lived at another residence on the property. Evan had

interactions with Jamie's dog that made him uncomfortable. For

some of the time that Evan resided at the premises, mice were

present in the basement. Evan lost access to water at the

premises for one day due to an accidental "shut-off." At some

point, Evan's access to the barn on the property was blocked.

On March 25, 2022, Evan received a ninety-day notice to

quit the premises. Evan did not relinquish possession at the

end of the notice period. On July 22, 2022, the plaintiffs

filed this summary process action. Evan counterclaimed and

defended the action on the grounds that the plaintiffs breached

the warranty of habitability and the covenant of quiet

enjoyment. After a bench trial, the judge issued a judgment for

possession in favor of the plaintiffs.

Discussion. We review a trial judge's findings of fact for

clear error. See H1 Lincoln, Inc. v. South Washington St., LLC,

489 Mass. 1, 13 (2022). A finding is clearly erroneous when,

"although there is evidence to support it, the reviewing court

on the entire evidence is left with the definite and firm

2 conviction that a mistake has been committed" (citation

omitted). Id. We review the judge's legal conclusions de novo.

See Robert & Ardis James Found. v. Meyers, 474 Mass. 181, 186

(2016).

A tenant at sufferance has the right to defend against a

landlord's claim of possession.3 Meikle v. Nurse, 474 Mass. 207,

209 n.3 (2016). "[I]f a tenant raises a defense or counterclaim

within the meaning of [G. L. c. 239,] § 8A[,] the judge must

first determine whether the landlord is liable on the defense or

counterclaim." Ferreira v. Charland, 103 Mass. App. Ct. 194,

207 (2023).

1. Warrant of habitability. The implied warranty of

habitability requires the landlord to "maintain a rented unit,

[a]t a minimum, in compliance with the State sanitary code"

(quotation and citation omitted). South Boston Elderly

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

Although a sanitary code violation "may provide compelling

evidence that a dwelling is not habitable," the issue is

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

3 The judge found that Evan was a tenant at sufferance. Evan asserts that he was a tenant at will. For the purposes of this appeal, the distinction is irrelevant because under G. L. c. 239, § 8A, both tenants at will and tenants at sufferance may raise defenses and counterclaims in response to summary process actions. See Deutsche Bank Nat'l Trust Co. v. Gabriel, 81 Mass. App. Ct. 564, 572-573 (2012).

3 . . . whether the landlord committed a code violation." Goreham

v. Martins, 485 Mass. 54, 65 (2020). "The warranty of

habitability applies only to substantial violations or

significant defects" (quotation and citation omitted). Id.

Evan contends that the judge disregarded evidence of the

mice on the premises and of the interruption of water service.

We disagree. The judge explicitly considered evidence of the

presence of mice, found that the credible evidence failed to

show a serious infestation of mice, and concluded that the

presence of the mice was not a substantial violation of the

State sanitary code. The judge's findings are supported by the

evidence. On July 29, 2022, Evan contacted the local health

department to request an inspection of the premises. On August

4, 2022, the local health director issued a correction order

requiring the plaintiffs to prevent mice from entering the

premises. On October 27, 2022, the plaintiffs' contractors

removed damaged insulation and sealed gaps in the premises.

After the issue did not abate, the plaintiffs hired a pest

control company to treat the premises. By December 21, 2022,

the issue was resolved.

Similarly, the judge concluded that the short period that

the premises were without water did not impair the premises'

rental value and thus did not breach the warranty of

habitability. On August 30, 2022, access to water at the

4 premises was inadvertently shut off and then restored the next

day. The judge's findings were supported by the evidence, and

Evan points to no evidence to the contrary. See Robert & Ardis

James Found., 474 Mass. at 186 ("credibility of the witnesses

rests within the purview of the trial judge").

2. Quiet enjoyment. The covenant of quiet enjoyment

"guarantees tenants the right to be free from 'serious'

interferences with their tenancies." Jablonski v. Clemons, 60

Mass. App. Ct. 473, 476 (2004), quoting Simon v. Solomon, 385

Mass. 91, 102 (1982). See G. L. c. 186, § 14. "A landlord

violates G. L. c. 186, § 14, when its acts or omissions impair

the value of the leased premises" (quotation and citation

omitted). Jablonski, supra.

With respect to this claim, Evan asserts that the judge

disregarded evidence of his being locked out of the barn,

"harassment" by Jamie's dog, and the interruption of water

service. We discern no error in the judge's conclusion that

Evan failed to provide credible evidence that he was entitled to

exclusive access to the barn. The judge's finding that the

unpleasant interactions between Evan and Jamie's dog were

relatively minor was also supported by the evidence. At times,

Jamie's dog was not leashed and barked at Evan, making him

uncomfortable. Although the animal control department contacted

Jamie, the department did not warn or order Jamie to do anything

5 differently with respect to her dog. The judge credited Jamie's

testimony that she made reasonable efforts to control her dog.

Further, the evidence supported the judge's finding that

the interruption in water service was short-lived, accidental,

and not caused by negligent or intentional conduct. Thus, the

judge did not err by concluding that Evan failed to demonstrate

that the plaintiffs interfered with his right to quiet enjoyment

of the premises. See Jablonski, 60 Mass. App. Ct. at 476.

Conclusion. Because Evan failed to establish any defense

or counterclaim, the judge did not err by entering judgment for

possession in favor of the plaintiffs. See Ferreira, 103 Mass.

App. Ct. at 207 (tenant not entitled to retain possession where

he failed to prove defense or counterclaim).

Judgment affirmed.

By the Court (Massing, Walsh & Brennan, JJ.4),

Clerk

Entered: February 14, 2025.

4 The panelists are listed in order of seniority.