MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff (landlord) brought this action to evict the defendant (tenant) from an apartment in Roslindale for nonpayment of rent. The tenant answered and counterclaimed. After a jury-waived trial in Housing Court, the trial judge found in favor of the landlord for unpaid rent, but in favor of the tenant for breach of the warranty of habitability, utility cross-metering, and violation of security deposit law. Additionally, the judge awarded the tenant attorneys fees. The landlord appeals, arguing that the tenants defenses and counterclaims should have been barred and that the judge erred in finding violations on the part of the landlord and in awarding attorneys fees. We affirm.
Discussion. 1. Tenants ability to maintain defenses and counterclaims. The landlords primary contention on appeal is that the tenants defenses and counterclaims should have been barred. Relying on G. L. c. 239, § 8A, the landlord argues that a tenant “at fault” may not assert defenses or counterclaims in an eviction action. Seizing upon the judges determination that the tenant was not justified in withholding rent, the landlord argues that the tenant was “at fault” and therefore not entitled to raise defenses or counterclaims. Contrary to the landlords contention, G. L. c. 239, § 8A specifically authorizes the tenants defenses and counterclaims in this case:
“In any action under this chapter to recover possession of any premises rented or leased for dwelling purposes, brought pursuant to a notice to quit for nonpayment of rent, or where the tenancy has been terminated without fault of the tenant or occupant, the tenant or occupant shall be entitled to raise, by defense or counterclaim, any claim against the plaintiff relating to or arising out of such property, rental, tenancy, or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law” (emphasis added).
By the plain terms of the statute, the tenant was entitled to raise defenses and counterclaims because the landlord had brought the action to recover possession of the tenants dwelling unit by notice to quit alleging nonpayment of rent. The trial judges finding, after trial, that the tenant unjustifiably withheld rent, does not invalidate the tenants defenses and counterclaims. Rather, the consequence of the tenants failure to properly comply with the rent withholding provisions of the statute is that she is unable to retain possession of the property. See Jablonski v. Casey, 64 Mass. App. Ct. 744, 749-750 (2005) (in eviction action premised on nonpayment of rent, tenant entitled to raise defenses and counterclaims, but not allowed to retain possession because of failure to comply with rent withholding provisions). Here, possession was not at issue since the tenant had vacated the premises by the time of trial. There was no error in allowing the tenant to proceed with her defenses and counterclaims.
2. Breach of warranty of habitability. The judge found that the landlord breached the warranty of habitability but also found that the landlord was unaware of these conditions prior to November 2018. The judge found that the defective conditions on the premises diminished its value by twenty percent and therefore discounted the rent owed by the tenant for the five months that she remained there after November 2018.
On appeal, the landlord argues that the judge erred in not limiting the warranty issues to the ceiling leak, but the judges written decision only refers to “defective conditions” generally and makes no reference to any specific issues. Additionally, the landlord argues that inspectional reports indicating ceiling leaks are contradicted by photographs showing only loose paint and plaster; that the tenant could have caused the condition herself; that the landlord did not receive adequate notice of the alleged violations; and that the inspectional reports as well as the inspectional officers were likely fraudulent. All of these claims amount to a challenge to the judges resolution of disputed factual issues in the case. We will not disturb the judges factual findings unless they are clearly erroneous, a showing which has not been met on appeal. See Jablonski, 64 Mass. App. Ct. at 747.
The landlord also insists that she was not negligent in her duties, and that at all times the premises were habitable. Yet, fault has no role in the determination of whether a breach of the warranty of habitability exists. See Goreham v. Martins, 485 Mass. 54, 62 (2020) (“The warranty of habitability is an implicit provision in every residential rental contract and does not incorporate a fault element”). Further, “[w]hen a breach of the warranty of habitability first occurs is a question of fact, and Housing Court judges have significant latitude in resolving such issues.” South Boston Elderly Residences, Inc. v. Moynahan, 91 Mass. App. Ct. 455, 464 (2017). There was no error in the judges finding of breach of the warranty of habitability.
3. Cross-metering. The judge found “irrefutable” evidence that both gas and electric utilities for common areas and a basement apartment were metered through the tenants apartment. Although the tenants lease obligated her to pay for her own utilities, the cross-metering resulted in her being charged, without her knowledge, for utilities that did not service her apartment. The judge therefore found the landlord had violated G. L. c. 186, § 14 (prohibiting landlords from charging tenants for utilities without their knowledge).
On appeal, the landlord attempts to discredit the witnesses and exhibits relied on by the judge on this issue, and further suggests that the tenant brought individuals into the premises to accomplish the cross-metering, thereby “staging” the entire claim. The judge had an opportunity to hear from the landlord at trial and specifically found her to be not credible on this point. Questions of credibility are for the fact finder, not the appellate court. See Jablonski, 64 Mass. App. Ct. at 747, citing Commonwealth v. Boncore, 412 Mass. 1013, 1014 (1992). Again, the landlords arguments amount to an attack on the judges resolution of factual issues. As the landlord has failed to demonstrate clear error in the judges findings on this issue, we will not disturb them. See Jablonski, supra.
4. Security deposit. The judge found that the tenant gave the landlord a security deposit, but that the landlord had failed to comply with any of the security deposit requirements under G. L. c. 186, § 15B. The security deposit was for an amount higher than one months rent, the tenant was not provided with any written information concerning the deposit, the deposit was not put into an interest bearing account beyond the reach of creditors, and the deposit was commingled with the landlords own funds and used by her for her own purposes.
Relying in large part on the landlords own admissions with respect to the security deposit, the judge concluded that “no reasonable question remains as to whether the Security Deposit law was violated.” Noting that the landlord waited four months after the tenant filed her answer (asserting the security deposit claim) to tender the return of the security deposit to the tenant, the judge found that the deposit was not returned in a timely manner.
On appeal, the landlord generally argues the equities, that she should not be penalized where she returned the security deposit while the tenant was still living in the premises (during the pendency of the eviction proceedings), resulting in the landlord having no funds from which to clean up the property after the tenant allegedly “trashed” it upon vacating the premises. The landlord has not, however, established that the judges findings concerning violation of the security deposit law were clearly erroneous. There was no error.
5. Attorneys fees. After issuing his findings, rulings and order, indicating that the tenant was statutorily entitled to recover attorneys fees, the judge directed the tenant to file a motion for fees within thirty days of the order. The tenant did so within one week. Rather than respond to the motion for fees, the landlord filed a notice of appeal and a motion to stay proceedings pending appeal. Subsequently, the judge entered final judgment including an award of attorneys fees to the tenant.
On appeal, the landlord makes no substantive argument regarding the award of attorneys fees to the tenant. Instead, the landlord argues that the judge erred in “ignoring” her motion for a stay of proceedings pending appeal. But the landlords notice of appeal was premature; no final judgment had entered. Therefore, there was no reason to stay the proceedings. There was no error.
2
The landlord next contends that the judge erred in not awarding her attorneys fees for having prevailed against certain of the tenants claims. However, any claim for attorneys fees must be supported by a contractual provision, statute, or court rule. See Wong v. Luu, 472 Mass. 208, 215 (2015). Although certain statutory provisions allow a prevailing tenant to recover attorneys fees, those provisions do not authorize a landlord to recover attorneys fees when the tenant does not prevail on those claims. See G. L. c. 186, § 14 (allowing tenant to recover attorneys fees for landlords cross-metering), G. L. c. 186, § 15B (allowing tenant to recover attorneys fees for landlords violation of security deposit law). The landlord has otherwise failed to provide any legal authority for the award of attorneys fees to her under the circumstances of this case. Likewise, the landlord has failed to provide any basis for an award of appellate attorneys fees in this case, and her request is denied.
The tenant has requested appellate costs and attorneys fees pursuant to G. L. c. 186, §§ 14, 15B, and G. L. c. 93A. See Yorke Mgt. v. Castro, 406 Mass. 17, 20 (1989) (tenant awarded appellate attorneys fees under G. L. c. 186 and c. 93A). Accordingly, pursuant to the procedure set forth in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), the tenant may file an application for appellate attorneys fees and costs within fourteen days of the issuance of the rescript, and the landlord shall have fourteen days within which to respond.
Judgment affirmed.
FOOTNOTES
2
. The tenant has included in the record a transcript of a September 12, 2019 hearing on the landlords motion to stay, at which the landlords counsel did not appear. The landlord has included in the record a notice of hearing on the tenants motion for fees, indicating that the motion was scheduled to be heard on September 12, 2019 at the Metro South Housing Court in Brockton. Neither hearing appears in the docket.