Article by Kenneth Krems for New England Assisted Housing Management Association publication

Picture this scenario: You think you have a simple eviction case for non-payment of rent. After all, the tenant does owe three months rent for a total of $1800.00. You bring your case to court but there is a hitch -- the tenant raises a rent withholding defense and a breach of warranty counterclaim. The result of this "simple" case could be that the tenant remains in the possession of the apartment, you owe the tenant money, and you have to make repairs. Your case has turned into a nightmare.

Tenants do sometimes raise these type of defenses and counterclaims in eviction cases. Your success as a manager in these cases depends upon your understanding of the law, as well as what actions you took or did not take before the case ever made it into a courtroom. 

Many states, including Massachusetts, recognize a warranty of habitability. This means that a landlord must keep the apartment free of significant defects, or in the case of Massachusetts, free from violations of the State Sanitary Code. Under Massachusetts General Laws Chapter 239, section 8A, a tenant can have a valid rent withholding defense if: 1) there are significant defects in the apartment; 2) the defects were not caused by the tenant or anyone under the tenant's control; and 3) the landlord or the landlord's employees knew of the defects prior to the time the tenant fell behind in the payment of rent. The landlord's knowledge can be as a result of receiving written notice of the defects from the tenant, being told about the defects, receiving notice from the Board of Health, or any other type of notice.

Read the full article.