Receiving a notice to quit or a Summary Process Summons and Complaint is stressful, but it does not mean you must move out right away. In Massachusetts, only a court can order an eviction, and tenants have the right to raise defenses and counterclaims. Some of these can reduce the rent owed, delay the case, or prevent the landlord from getting possession at all.
This article explains common tenant defenses in residential evictions. For an overview of each stage of the case, see our companion guide, The Massachusetts Eviction Process: A Step-by-Step Guide for Landlords.
First: Do Not Ignore the Court Papers
The most important step is to respond on time. If you miss your answer deadline or a court date, you can lose by default, even if you had strong defenses. Read the summons carefully and write down:
- The entry date and the deadline to file your answer
- The date, time, and location of every court event
- The reason the landlord gives for the eviction
- The amount of rent the landlord claims is owed
Defenses Based on the Notice and Procedure
Evictions must follow strict procedures. Common procedural problems include a notice to quit that gives the wrong amount of time, a notice that was never properly delivered, a case filed before the notice period expired, or improper service of the court papers.
Your right to cure in a nonpayment case
If the eviction is for unpaid rent, you may be able to stop it by paying what is owed:
- If you have a lease, G.L. c. 186, § 11 generally lets you prevent termination by paying all rent due, with interest and costs, on or before the day your answer is due.
- If you are a tenant at will, G.L. c. 186, § 12 generally gives you ten days after receiving a 14-day nonpayment notice to pay in full, unless you received a similar notice in the prior twelve months. If the notice did not include the required cure language, your time to pay extends to your answer date.
Pending rental assistance
If you have applied for short-term emergency rental assistance, tell the court. Under G.L. c. 239, § 15, a court in a nonpayment case must generally grant a continuance or stay while a rental assistance application is pending. Bring proof of your application to court.
Bad Conditions: Defenses and Counterclaims Under Section 8A
Massachusetts law protects tenants who live with serious problems such as no heat, leaks, mold, pests, or lead paint hazards. Under G.L. c. 239, § 8A, in a nonpayment or no-fault eviction a tenant may raise defenses or counterclaims for breach of the warranty of habitability, breach of a material lease term, or violation of other laws. Damages can include the difference between the agreed rent and the fair value of the unit with its defects.
To use conditions to block a landlord from recovering possession, the statute generally requires that:
- The landlord knew about the conditions before you fell behind on rent
- The landlord cannot show that you or someone under your control caused the conditions
- The conditions can be repaired without you moving out
A board of health inspection report sent to the landlord can be strong evidence of notice. The court may order you to pay rent, or a reduced amount, into court while the case is pending. If the court finds you owe the landlord more than your damages, you can generally still keep the apartment by paying the balance, with interest and costs, within one week after written notice from the court.
Because the landlord must have known about the problems, put repair requests in writing and keep copies, photos, and inspection reports.
Retaliation
A landlord may not punish a tenant for reporting code violations to the board of health, complaining in writing about violations, or joining a tenants’ organization. Under G.L. c. 186, § 18, if a tenant receives a termination notice (other than for nonpayment), a rent increase, or a substantial change in lease terms within six months after that kind of protected activity, the law presumes the action was retaliatory. The landlord must then prove otherwise by clear and convincing evidence. A tenant who proves retaliation may recover damages and attorney’s fees.
Other Possible Counterclaims
- Security deposit violations, such as failing to hold the deposit in a separate account or provide required receipts. See our page on Massachusetts security deposit law.
- Interference with quiet enjoyment, including utility shutoffs or lockouts.
- Discrimination in violation of fair housing laws.
- Unfair or deceptive practices by landlords who rent as a business.
Frequently Asked Questions
Can I stop paying rent because my apartment needs repairs?
Withholding rent is risky. The protections of Section 8A depend on specific conditions, including the landlord’s prior knowledge of the problems. Many tenants set aside the withheld rent so they can pay whatever the court ultimately decides is owed. Get advice before you withhold.
Can my landlord change the locks or shut off my heat?
No. In Massachusetts, a landlord must go through the court process. Lockouts and utility shutoffs used to force a tenant out are not allowed and may give the tenant claims for damages.
What if I lose at trial?
There is a short period to appeal, and you may ask the court for a stay of execution to give you more time to find housing. Act quickly, because these deadlines are short.
Get Help With Your Eviction Case
Muggeo & Associates handles landlord-tenant matters for clients in Salem, Lynn, Peabody, Beverly, and across the North Shore. Learn more about our real estate and landlord-tenant practice or visit our legal resources. Call Muggeo & Associates at 978-741-1177 or contact us online.
This article provides general information only and is not legal advice. Laws change and outcomes depend on the facts of each case.