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16-P-209                                             Appeals Court

  SOUTH BOSTON ELDERLY RESIDENCES, INC.     vs.   GERALD MOYNAHAN.


                            No. 16-P-209.

           Suffolk.      December 1, 2016. - May 9, 2017.

              Present:   Milkey, Massing, & Sacks, JJ.


Housing. Summary Process. Landlord and Tenant, Eviction, Rent,
     Repairs, Habitability, Reprisal against tenant, Consumer
     protection, Quiet enjoyment. Practice, Civil, Summary
     process, Abatement, Damages. Damages, Breach of implied
     warranty of habitability.



     Summary Process. Complaint filed in the Boston Division of
the Housing Court Department on February 4, 2013.

    The case was heard by Jeffrey M. Winik, J.


     A. Joseph Ross (Ellen Rappaport-Tanowitz also present) for
the tenant.
     W. Paul Needham for the landlord.


    MILKEY, J.     The defendant, Gerald Moynahan, rents a small

apartment from the plaintiff, South Boston Elderly Residences,

Inc. (landlord).   In this summary process action, Moynahan

retained possession, which is no longer at issue.     The remaining
                                                                      2


disputes concern his counterclaims.    A Housing Court judge found

that the landlord committed a breach of the warranty of

habitability with respect to two different problems with the

apartment.   One was a recurring moisture problem that became so

bad at one point that mushrooms were growing in the carpeting.

The other was the lack of ventilation due to inaccessible

windows.   However, for various reasons that the judge explained

in a detailed memorandum of decision, Moynahan received only

minor rent abatement damages, and his claim brought pursuant to

G. L. c. 93A was dismissed.    The judge also concluded that the

landlord had presented clear and convincing evidence to overcome

the statutory presumption that its efforts to evict Moynahan

were in retaliation for his reporting the sanitary code

violations at the apartment.   We affirm in part, reverse in

part, and remand for additional proceedings.

    Background.    In November, 2007, Moynahan moved into unit 13

of an elderly housing complex that the landlord owns in the

South Boston neighborhood of Boston.     The building had just been

renovated, and Moynahan was the first tenant to move into unit

13 after the renovation.   This ground-floor apartment totals

approximately 453 square feet in size.    Because of the sloping

topography of the site, part of the unit is subterranean.      Unit

13 has long suffered from moisture and related mold problems.

The specific progression of these problems is important to
                                                                  3


resolving this case, and we therefore turn to reviewing that

history in some detail.

     1.   The moisture problems.   As the landlord admitted at

trial, moisture issues in unit 13 predated Moynahan's tenancy.

Specifically, one of the landlord's property management agents

testified that even before Moynahan moved in, "the unit had

water issues."   According to Moynahan's testimony, unit 13 was

"extremely damp" during the summer of 2008, and he discovered

"mold, mildew, something of that sort" growing in his bedroom

closet.   As was documented in electronic mail (e-mail) exchanges

admitted in evidence, Moynahan had reported the mold and

dampness issues to the landlord by December of 2008 at the

latest.   For example, a December 23, 2008, e-mail message

related that there was "something black growing on one interior

wall," and noted "the peculiar cat-like odor originating" from

that area.1   A follow-up letter that Moynahan sent on December


     1
       It bears noting that Moynahan originally reported the
moisture issues in the context of his trying to move to a
different apartment in the same building that he found "so much
larger and brighter." After he was told by the landlord that
such moves generally were prohibited, he offered the moisture
problems in unit 13 as a potential ground for making an
exception to the policy. In response to the property manager's
leaving a message that she was sorry he was unhappy with his
apartment, Moynahan emphasized that he was not unhappy with it,
and he downplayed the impact of the moisture issues on him.
Specifically, he characterized "the cat-like odor" as "rather
unpleasant, but tolerable," and "the mold-or-mildew" as not
being "any real problem," or "anything I would be concerned
about and most certainly not anything I would complain about."
                                                                   4


29, 2008, complained again in detail about "the mold and the

cat-like odor," and it relayed Moynahan's belief that "the mold

may also be the cause of chronic bronchial congestion that I

have in the morning and that I never, in sixty-eight years,

previously had."   After inspecting unit 13, the landlord

confirmed that "[t]he carpet was damp," "fixed the air

conditioner" (which was believed to be the source of the

problem), and "dried out the rug."

    Moynahan did not report any mold problem again until March

17, 2010, when -- as is uncontested -- he raised it orally

during an annual inspection of his apartment.   A follow-up

inspection was scheduled and, by letter dated March 23, 2010,

the landlord notified Moynahan that the "inspection was not able

to be completed due to the amount of clutter and debris in [his]

home."   The letter described a "'sea' of paper bags and boxes,"

it stated that this clutter violated the lease, and it warned of

some of the specific dangers presented, such as a fire hazard.

With respect to the alleged mold in his closet, the letter

stated that "[t]here is no way any work can be performed in that

closet until most if not all clutter/boxes are removed."     It

also warned of the need to address the mold issues immediately:

"This mold can and will spread to the rest of the apartment and

we need to address this as soon as possible."   Finally, the
                                                                      5


letter closed by scheduling a follow-up inspection on April 19,

2010.

    Moynahan provided a detailed written response to the

landlord's letter.     That response described the various items he

had stored in the apartment, and it acknowledged that

"[c]ertainly in as small a space as this apartment all these

result in what could colloquially be called a 'cluttered'

space."     The letter denied that his storage practices violated

the lease and denied that any of the stored items could be

described as "debris."

    On April 19, 2010, the date of the scheduled follow-up

inspection, the landlord never showed, prompting Moynahan to

send an angry letter regarding his having wasted the day.     In

fact, despite the dire tone of the landlord's March 23, 2010,

letter with respect to both the clutter and mold issues, there

is no evidence that the landlord took any further action for

more than a year.     The property manager herself described what

happened:    "I think at that point it kind of fell to the

wayside."    Moynahan continued to pay his rent.

    By August, 2011, the moisture problems had worsened to the

point that, as noted, there were mushrooms growing in the

carpeting.    As occurred in 2008, see note 1, supra, Moynahan

raised the moisture problem in unit 13 with the landlord in the

context of his seeking to move to a different apartment in the
                                                                     6


same building.     In a letter dated August 19, 2011, Moynahan

explained that he wanted to move because his existing apartment

    "has for some time now been totally unsuitable for
    occupancy by any person, and it is becoming steadily and
    very rapidly more so, owing to extreme dampness and the
    wetness of the carpeted floor, a large and very rapidly
    expanding portion of which is, at this writing, soaking wet
    because of water coming up from below. . . .

    "The identical problem has recurred every summer to some
    extent, but I have never complained about it because no
    other unit in this building was then available, and I most
    certainly did not want to experience what the lady in the
    immediately adjacent apartment number 11 had experienced
    when she had insoluble water ingress problems in her
    apartment: namely, to be moved to one of your units in
    Milton."

When Moynahan was not allowed to move to the open apartment, he

reported the moisture problem in unit 13 to the Boston

inspectional services department (ISD), which cited the landlord

for the problem.     According to the judge, by September 9, 2011,

a plumber hired by the landlord "repaired the wall-mounted air

conditioning unit that appears to have been the source of the

water leak."    However, the water had caused extensive damage to

the walls and carpeting.     The necessary repairs were delayed by

contentious negotiations between the landlord and Moynahan over

the terms of Moynahan's vacating the apartment to allow the work

to be done.    Moynahan eventually temporarily moved into the

adjacent unit 11, and the landlord then addressed the damage

caused by the moisture issues, completing those repairs by March

3, 2012.
                                                                    7


     2.   The October, 2011, notice to quit.    Meanwhile, on

October 6, 2011, the landlord served Moynahan with a notice to

quit the premises.   At that point, Moynahan still was current in

paying his rent, and the notice to quit was based on the

cluttered state of Moynahan's apartment.    Thereafter, the

landlord refused to cash Moynahan's rent checks.    Moynahan

stopped payment on the accumulated uncashed checks to the

landlord, instead paying the rent into an escrow account.2

     3.   The ventilation problem.   Moynahan began moving his

possessions back into unit 13 in April, 2012.    He told the

landlord, however, that he could not stay in the unit for

extended periods of time due to fumes emanating from the fresh

paint and new carpeting.   Moynahan pointed out that although the

apartment had six windows that theoretically could be opened to

ventilate the fumes, these windows were inaccessible because

they were eight feet from the floor.    In May, 2012, Moynahan

contacted ISD about the ventilation issues.    The agency

concluded that the inadequate ventilation caused by the

inaccessible windows constituted a sanitary code violation.

After ISD intervened, the landlord addressed the ventilation

issue by installing on some of the windows special latches that

could be opened using a pole.   ISD signed off on this fix in


     2
       Moynahan did pay his rent to the landlord for two months,
March and April, 2012.
                                                                    8


December, 2012.   In the interim, Moynahan slept at his sister's

house.

    4.    The December, 2012, notice to quit and the court

action.   Having addressed the ventilation issue, the landlord on

December 14, 2012, served Moynahan with a second notice to quit,

this one based on the unpaid rent.   The current summary process

action followed on February 4, 2013.   Moynahan brought numerous

counterclaims to the summary process action.    As the case

crystallized over the course of the proceedings, the key issues

were the following:   the extent to which the moisture and

ventilation problems constituted a breach of the warranty of

habitability and warranted rent abatement damages; whether the

landlord's conduct violated c. 93A or statutes prohibiting

retaliation by landlords, see G. L. c. 186, § 18, and G. L.

c. 239, § 2A; and whether the landlord's entry into unit 13 at

times when Moynahan had signaled he could not be present

interfered with his quiet enjoyment of the premises, see G. L.

c. 186, § 14.

    5.    The judge's findings and rulings.    Following a three-

day trial, the judge issued extensive findings and rulings.     The

judge found that both the moisture problem and the ventilation

problem constituted a breach of the warranty of habitability,

but he allowed only limited rent abatement damages during the

respective periods.   With respect to the moisture problem, the
                                                                    9


judge determined that the first material breach of the warranty

of habitability occurred in August, 2011, when the existence of

a severe moisture problem was well-documented and the landlord

plainly had notice of the problem.   The judge declined to give

Moynahan any rent abatement damages for any moisture problems

prior to August, 2011, offering two different types of reasons

for this.   First, he found that although Moynahan had reported

moisture-related problems prior to August, 2011, "those

conditions were relatively minor and did not endanger Moynahan's

health or safety or otherwise diminish the value of the

apartment."   Second, with respect to the mold issues reported in

March, 2010, the judge found that clutter in the apartment

prevented the landlord's inspector from gaining the access

necessary to confirm whether the problem existed.

    Although the damage caused by the leak was not repaired

until March 3, 2012, the judge declined to give Moynahan any

rent abatement damages for the months of October, November, and

December of 2011, on the grounds that during those months,

Moynahan made unreasonable demands and prevented the landlord

from making the repairs.   The only breach of warranty damages

that the judge awarded for the moisture problem were based on a

thirty percent rent abatement for August and September of 2011,

and a twenty percent abatement for January and February of 2012.

These damages equaled one month's rent, $788.
                                                                     10


     With respect to the ventilation problem, the judge did not

award Moynahan any abatement damages for the period prior to

May, 2012, that is, before ISD cited the landlord for the

violation.    For the time period from May to December, 2012,

during which Moynahan slept at his sister's residence, the judge

awarded Moynahan rent abatement damages of only five percent,

for a total of $315.20 over this eight-month period.     The judge

declined to calculate damages based on a higher abatement

percentage because he found that the ventilation problem "had

[only] a minor impact on Moyn[a]han's ability to live in the

apartment."    The judge did "not credit Moynahan's testimony that

he had difficulty breathing in his unit," and he found that

"[a]ny paint vapor fumes that may have been present in [u]nit 13

would have had a negligible impact on a tenant of average

sensibility."3

     Because the landlord served notices to quit within six

months of Moynahan's complaints to ISD about the moisture and

ventilation issues, the judge found that Moynahan was entitled

to the statutory presumption that the landlord acted in

retaliation.     See G. L. c. 186, § 18 (creating an affirmative


     3
       Elsewhere in his lengthy memorandum, the judge repeated
his view that Moynahan may have been unduly sensitive to the
ventilation issue, finding "no credible evidence that any
reduction in the flow of air in [u]nit 13 resulting from the
inability to open the windows would have had any significant
adverse impact on a tenant of average sensitivity."
                                                                  11


action for damages); G. L. c. 239, § 2A (creating a defense to a

summary process action).   Nevertheless, the judge ruled that the

landlord rebutted that presumption by clear and convincing

evidence showing "sufficient independent justification for

seeking to terminate Moynahan's tenancy":   the clutter issues

for the first notice to quit and the sustained nonpayment of

rent for the second.   The judge specifically found that the

landlord "would have taken action to terminate Moynahan's

tenancy in October 2011 and in December 2012 even if Moynahan

hadn't complained about the water leaks in 2011 and the lack of

window ventilation in 2012."

    With respect to Moynahan's claim brought pursuant to G. L.

c. 93A, the judge ruled that the landlord had not committed a

breach of that statute because it had acted promptly and

reasonably to make repairs once Moynahan brought the problems to

its attention (with any delays the fault of Moynahan).

    Finally, with respect to Moynahan's claim that the landlord

interfered with his quiet enjoyment by entering unit 13 without

his permission, the judge found that the landlord entered the

apartment without Moynahan present only to address conditions

that Moynahan had reported and that this was not a violation

because the lease authorized the landlord "to enter the premises
                                                                     12


for the purpose of making reasonable inspections and repairs and

replacements."4

     After making findings, the judge afforded Moynahan one week

to pay the rent owed (less abatement damages), along with

interest and costs of suit.     See G. L. c. 239, § 8A, fifth par.

After Moynahan did so, the court entered judgment of possession

in his favor.

     Discussion.     "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."     U.S. Bank Natl. Assn. v. Schumacher, 467 Mass.

421, 427 (2014) (citations omitted).     On appeal, Moynahan makes

numerous claims of error, which we address in turn.

     1.   Breaches of warranty of habitability.    The implied

warranty of habitability includes the promise to maintain a

rented unit, "[a]t a minimum," in compliance with the State

sanitary code.    See Simon v. Solomon, 385 Mass. 91, 96 (1982).

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.     The tenant remains "liable for


     4
       Moynahan also unsuccessfully brought counterclaims based
on violation of the security deposit statute, infliction of
emotional distress, and discrimination. Because Moynahan raises
no claim of error with regard to the judge's dismissal of these
counterclaims, we do not address them. See Mass.R.A.P.
16(a)(4), as amended, 367 Mass. 921 (1975).
                                                                     13


the reasonable value, if any, of his use of the premises for the

time he remains in possession."   Boston Hous. Authy. v.

Hemingway, 363 Mass. 184, 202 (1973).   The question is how much

the defects reduced the value of the residence.     Id. at 203

("The measure of damages would be the difference between the

value of each apartment as warranted and the rental value of

each apartment in its defective condition").    Moynahan makes a

number of distinct arguments as to why he should have been given

a larger rent abatement than he was given with respect to the

moisture and ventilation problems.5

     a.   Period for which damages are due.    With respect to the

moisture problem, Moynahan argues that the judge erred in not

abating part of his rent for the period prior to August, 2011.

As Moynahan points out, he first notified the landlord that

there were problems with mold and dampness in the apartment in

December, 2008, and the landlord admitted at trial that "the

unit had water issues" prior to Moynahan's tenure there.6

Similarly, with respect to the ventilation problem, Moynahan

argues that the judge erred by abating part of his rent only as

     5
       Moynahan has never argued that the moisture and
ventilation problems are linked, that is, that the lack of
adequate ventilation helped cause or exacerbate the moisture
problem. We therefore treat these issues as distinct problems.
     6
       It bears noting that a landlord is deemed to have
constructive notice of conditions present at the inception of a
tenancy without proof of actual notice. McKenna v. Begin, 3
Mass. App. Ct. 168, 173-174 (1975).
                                                                    14


of May, 2012, when he claimed that the fumes from the apartment

repairs prevented him from staying there.   As he points out,

although the lack of ventilation came to the fore at that time,

it existed throughout his tenancy.

     We are not unsympathetic to Moynahan's arguments.     For

example, there was evidence that there may have been significant

moisture-related problems in his apartment prior to August,

2011, and that the landlord had notice of these problems.     To

the extent that the judge concluded that the mere existence of

the clutter issues justified the landlord's failure to follow up

on the reported mold issues, we firmly disagree.7    See Berman &

Sons, Inc. v. Jefferson, 379 Mass. 196, 200 (1979)

("Considerations of fault do not belong in an analysis of

warranty").   Moynahan was, by all accounts, prepared to

accommodate the landlord's scheduled visit on April 19, 2010,

and there is nothing to suggest that on that date clutter would

have prevented inspection or repairs.   That Moynahan did not

complain again about the landlord's lack of follow-up does not

excuse the landlord from ignoring the problem for roughly the

next eighteen months.   Once notice of a defect is given, it is


     7
       Moynahan independently argues that the judge abused his
discretion in excluding from evidence a particular photograph
that Moynahan proffered (and which he now argues was relevant to
whether clutter prevented the landlord from addressing the mold
problem). We pass on that question, because it is of no
consequence to our resolution of this case.
                                                                   15


not incumbent upon the tenant to remind the landlord that

repairs are necessary.   See ibid. (landlord strictly liable for

material breach of warranty of habitability upon notification).

    Nevertheless, the existence of a code violation by itself

does not necessarily entitle a tenant to a finding that a

material breach of the warranty of habitability has occurred.

McKenna v. Begin, 5 Mass. App. Ct. 304, 308 (1977) (minor code

violations, without more, did not entitle the tenant to

damages).   When 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.    See Hemingway,

supra at 200;   McKenna v. Begin, 3 Mass. App. Ct. 168, 173-174

(1975).   The trial judge specifically found that, prior to

August, 2011, the moisture related problems "were relatively

minor and did not endanger Moynahan's health or safety or

otherwise diminish the value of the apartment."   Similarly, the

trial judge found no evidence that the ventilation issue caused

Moynahan any appreciable problem prior to May, 2012.   We are

bound by such findings unless they are "clearly erroneous."

Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996).      On the

current record, we are unable to say that they were.   See

generally Jablonski v. Casey, 64 Mass. App. Ct. 744, 747 (2005)

(finding of fact not clearly erroneous unless there is no

evidence to support it or "the reviewing court on the entire
                                                                    16


evidence is left with the definite and firm conviction that a

mistake has been committed"), quoting from United States v.

United States Gypsum Co., 333 U.S. 364, 395 (1948).

     b.   Delay in repairs.   Moynahan additionally argues that

the judge erred in not awarding him rent abatement damages for

the months of October, November, and December of 2011.    Moynahan

argues that the judge in effect unfairly placed the blame on him

for the three-month delay in making the repairs.    As an initial

matter, we note that Moynahan's characterization of what the

judge did fails to take into account that the judge assessed

damages based on a twenty percent abatement for January and

February of 2012, even though during that time the landlord had

made available to Moynahan the other unit, which raised no

habitability concerns.8   In other words, during this five-month

period, Moynahan faced substandard living conditions for only

three months (having been provided adequate replacement housing

for the other two months), and was awarded abatement damages for

two months.   In view of this, he can claim that the judge

deprived him of only one month of abatement damages.    Given that

there is substantial support in the record for the judge's

finding that Moynahan was responsible for causing at least some

     8
       The fact that the landlord filed no cross-appeal
challenging this aspect of the judge's ruling does not mean that
we cannot take it into consideration in evaluating Moynahan's
appeal.
                                                                  17


of the delay in repairs during the fall of 2011, we discern no

error in the judge's award of abatement damages for this period.9

See generally Brown v. LeClair, 20 Mass. App. Ct. 976, 978

(1985) (recognizing that "damages in rent abatement cases are

not capable of precise measurement").

     c.   Percent reduction for ventilation issues.   Moynahan

argues that the judge erred in allowing him only a five percent

abatement in rent for the period he claimed the fumes in the

apartment prevented him from staying there.    As noted, the judge

allowed Moynahan only that nominal abatement based in part on

his finding that any indoor air quality issues were minimal for

"a tenant of average sensibility."10    This implicates the

question whether a reduction in value should be measured by the

actual impact of the relevant code violation (or condition of

disrepair) on the tenant making the claim or instead measured by


     9
       We recognize that when a landlord has violated the
warranty of habitability, it does not get a grace period from
damages for the reasonable time necessary to make repairs. See
Berman & Sons, Inc., supra at 199-200. However, we do not view
that rule as precluding a trial judge from reducing the
abatement damages by an amount that reflects unreasonable delays
caused by the tenant.
     10
       It is not clear on what evidence the judge based this
assessment, although he appears to have found it significant
that others did not note or recall a fume problem in unit 13.
Moynahan did not argue that he was entitled to a presumption
that he was a person of average sensibility, nor did the judge
consider that issue. See Payne v. R.H. White Co., 314 Mass. 63,
65-66 (1943) (addressing such a presumption in the context of
the implied warranty of merchantability).
                                                                     18


some sort of "average sensibility" standard.   This is a question

of law subject to de novo appellate review.

     Neither party has brought to our attention, nor have we

found, any appellate case addressing this issue directly.

Reference in at least one case to "the rental value" of the

apartment in its impaired condition could be taken to support

the judge's view that a tenant's damages are to be measured

without attention to his or her particular circumstances.     See,

e.g., Hemingway, 363 Mass. at 203.   However, in that case, none

of the issues touched on a tenant's special sensitivities.

Thus, the court was not faced with whether a test based on

market principles should give way if the presence of a

plaintiff's special circumstances meant that using that

yardstick would not make the injured party whole.   See McKenna,

supra at 309 ("One of the established aims of determining

damages for breach of contract is to put the injured party in

the position he would have been in if performance had been

rendered as promised").11   We have addressed that tension in the

analogous context of measuring damages caused by breaches of

purchase and sale contracts.   As we stated in American


     11
       See generally F. A. Bartlett Tree Expert Co. v. Hartney,
308 Mass. 407, 411 (1941) ("A plaintiff in an action for breach
of contract is entitled in general to damages sufficient in
amount to compensate him for the loss actually sustained by him
and to put him in as good a position financially as he would be
in had there been no breach").
                                                                 19


Mechanical Corp. v. Union Mach. Co. of Lynn, 21 Mass. App. Ct.

97, 101 (1985):

     "The usual formula for measuring damages for breach of a
     real estate purchase and sale agreement -- the difference
     between the contract price and the market value on the date
     of the breach -- is merely a different formulation of the
     general rule for measuring contract damages. In the usual
     case, the contract price less the market value represents
     the seller's actual loss, and the formula, therefore,
     affords the injured seller an adequate remedy. In some
     cases, however, the actual loss suffered . . . exceeds the
     amount yielded by that formula."

Thus, we have cautioned against strictly applying market-based

tests as a measure of contract damages where doing so would fail

to compensate a plaintiff for his or her injuries.12

     Of course, the particular circumstances at issue in

American Mechanical Corp., supra at 99-103, involved special

economic circumstances, not, as here, sensitivity to chemical

     12
       Whether a plaintiff is a person of ordinary sensibilities
has arisen in older cases involving the implied warranty of
merchantability. See, e.g., Payne v. R.H. White Co., supra at
65 (noting, in a case in which the plaintiff had what appears to
have been an allergic reaction to a dress she had bought, that
"[t]he plaintiff must show that the dress was unfit to be worn
by a normal person and cannot recover by merely showing that it
was unfit for her or for some unusually susceptible person to
wear"). However, such cases have addressed that issue as going
to whether there has been a breach of the warranty of
merchantability, not what the measure of damages should be if a
breach of warranty has been shown. Here, the judge found that
the lack of ventilation caused a material breach of the warranty
of habitability (a finding that is not in dispute). Moreover,
the same cases that have recognized an average sensibility
standard in the context of the warranty of merchantability have
also recognized that a plaintiff is entitled to a presumption
that he or she is a person of average sensibility (significantly
reducing the "bite" of such a test). See note 10, supra, citing
id. at 65-66.
                                                                    20


exposure.    However, that distinction supports rather than

undercuts Moynahan's case.    That is because the implied warranty

of habitability sounds in tort as well as contract.    See Scott

v. Garfield, 454 Mass. 790, 794 (2009) (visitors who are injured

by defect in apartment that violates the implied warranty of

habitability may sue based on that breach to recover personal

injury damages).    It is a well-established principle of tort law

that the defendant must take its plaintiff as it finds him or

her.    See Wiemert v. Boston Elevated Ry. Co., 216 Mass. 598, 603

(1914); doCanto v. Ametek, Inc., 367 Mass. 776, 783-784 (1975).

       In the case before us, although the judge appears to have

concluded that Moynahan may be subject to special sensitivities,

he nevertheless found a material breach of the warranty of

habitability.    That finding is fully supported given that unit

13 effectively had no ventilation whatsoever until the windows

were made accessible.    In the face of that breach, Moynahan

could not be made whole unless he was compensated for the

difference between the unit's warranted value and its diminished

value to him due to the lack of ventilation.    We therefore hold

that the judge erred to the extent that he based his calculation

of abatement damages on the fact that Moynahan might happen to

be more sensitive to the code violation than someone of "average

sensibility" (however that is measured).
                                                                   21


    To be sure, even if the judge had applied the correct

standard, he was free to reject Moynahan's claim on the facts

presented at trial.   Indeed, the judge declined to credit

Moynahan's testimony that the fumes were as bad as he maintained

(for example, the judge expressly rejected Moynahan's claim that

"he had difficulty breathing").   Because the judge found that

the absence of accessible windows caused a material breach of

the warranty of habitability and then assessed some abatement

damages for the breach, it is plain that the judge did not

totally discredit Moynahan's claim that there was an indoor air

problem related to the lack of ventilation.   We are unable to

discern the extent to which the judge's employment of an

incorrect legal standard affected his specific determination of

what rent abatement damages were due.   We therefore remand this

issue to the judge for reconsideration of this issue in light of

this opinion.

    2.   Retaliation.   Moynahan claimed that the landlord sought

to evict him from unit 13 in retaliation for his bringing the

code violations to the attention of ISD.   Two similar but

separate statutory provisions apply to such contentions.     The

first, G. L. c. 186, § 18, creates a damages remedy for tenants,

while the second, G. L. c. 239, § 2A, creates a defense to

summary process actions.   The two provisions generally parallel

each other.   Thus, for example, both prohibit the landlord from
                                                                    22


retaliating against tenants for engaging in certain protected

activities, including reporting code violations.   In addition,

both create a presumption that certain actions by a landlord,

occurring within six months of the protected activity, are

retaliatory.

    Because the initial notice to quit was served so close in

time to Moynahan's having reported the moisture issues to ISD,

the landlord acknowledges that the judge was correct in

concluding that Moynahan is entitled to the statutory

presumption that it acted in retaliation.    See G. L. c. 186,

§ 18, as appearing in St. 1978, c. 149, § 1.    Section 18 states

that the presumption can "be rebutted only by clear and

convincing evidence that [the landlord's] action was not a

reprisal against the tenant and that [the landlord] had

sufficient independent justification for taking such action, and

would have in fact taken such action, in the same manner and at

the same time the action was taken, regardless of tenants

engaging in, or the belief tenants had engaged in, activities

protected under this section."   Ibid.   Clear and convincing

evidence means proof that "induces in the mind of the trier a

reasonable belief that the facts asserted are highly probably

true, that the probability that they are true or exist is

substantially greater than the probability that they are false
                                                                  23


or do not exist."   Callahan v. Westinghouse Bdcst. Co., 372

Mass. 582, 588 (1977) (citation omitted).

     In concluding that the landlord had successfully rebutted

the statutory presumption, the judge accepted its claim that

Moynahan kept his apartment in a chronic state of dangerous

clutter.   As Moynahan points out, there is much in the record

that arguably calls into question the landlord's claims as to

the extent of any clutter problem.13   Nevertheless, for purposes

of our analysis, we assume that there is adequate evidentiary

support for the judge's finding that clutter problems existing

as of October, 2011, gave the landlord an independent

justification for serving Moynahan with the notice to quit.      For

the landlord to overcome the statutory presumption of

retaliation, however, there still would need to be clear and

convincing evidence that the landlord in fact would have sent

the notice to quit "in the same manner and at the same time

     13
       For example, the only photos that apparently were
introduced to document such clutter are hardly as definitive as
the landlord claims (showing, as they do, plastic storage bins
stacked on shelving). In addition, as Moynahan accurately
points out, although ISD inspectors were in the apartment on
numerous occasions to examine the moisture problem and related
issues, they did not cite any clutter problem except in
September of 2012, when Moynahan claims he was unable to
organize his belongings after returning to unit 13 because of
"his sensitivity to the new paint and carpet." See 105 Code
Mass. Reg. § 410.602(B) (1994). The judge did not explain why
he declined to credit ISD's apparent prior lack of concern with
clutter in unit 13, while he incongruously found it significant
that ISD inspectors did not document a problem with fumes when
they were inspecting the apartment in 2012.
                                                                    24


. . . regardless of" Moynahan reporting the moisture issues to

ISD.    See G. L. c. 186, § 18.

       The landlord is unable to make such a showing on the

current record.   There is no evidence that any clutter problem

was any worse in October, 2011, than it was in March, 2010, when

the landlord first raised the issue with Moynahan.    Despite the

dire tone of the March, 2010, warnings about clutter, the

landlord did nothing to follow up on these issues until Moynahan

reported the moisture problem to ISD one and one-half years

later.   At trial, the landlord offered no explanation for this

delay beyond saying that the issue "kind of fell to the

wayside."   From all that appears before us, the landlord was

content to let any clutter issues lie unaddressed so long as

Moynahan did not press the mold issue and continued to pay his

rent.    Under these circumstances, the landlord has not supplied

clear and convincing proof that it would have served the

October, 2011, notice to quit had Moynahan not sought ISD's

assistance in remedying a code violation.    The judge's contrary

findings are clearly erroneous.    Where a tenant has shown that a

landlord acted in retaliation, he is entitled to statutory

damages not less than one month's rent and not more than three

months' rent, or his actual damages, whichever is greater,

together with reasonable attorney's fees and costs.    G. L.
                                                                     25


c. 186, § 18.   We remand the retaliation issue to the trial

judge for a determination of appropriate damages.14

     3.   Chapter 93A.    As the judge recognized, a failure by a

landlord to cure a code violation within a reasonable time after

notice constitutes a violation of the landlord-tenant

regulations that the Attorney General has promulgated pursuant

to G. L. c. 93A, § 2(c).     See 940 Code Mass. Regs. § 3.17(1)(i)

(1993).   Such a failure constitutes a violation of the statute

itself.   See Clark v. Leisure Woods Estates, Inc., 89 Mass. App.

Ct. 87, 94 (2016).15     Indeed, independent of the Attorney


     14
       Moynahan also contends that the December, 2012, notice to
quit was served in retaliation for his ventilation complaint.
However, he has not articulated why he would have been entitled
to the presumption of retaliation set forth in G. L. c. 186,
§ 18, since the notice to quit was served more than six months
after he reported the ventilation issue to ISD. In any event,
because the second notice to quit was based on nonpayment of
rent, Moynahan is not entitled, for the purpose of his
counterclaim, to the presumption of retaliation. G. L. c. 186,
§ 18 ("receipt of any notice of termination of tenancy, except
for nonpayment of rent, . . . within six months after the tenant
has commenced . . . such . . .complaint shall create a
rebuttable presumption that such notice or other action is a
reprisal"[emphasis added]). Unaided by that presumption,
Moynahan is unable to demonstrate clear error in the judge's
finding that the December, 2012, notice to quit was not
undertaken in retaliation for his complaint. Although Moynahan
has argued that he lawfully withheld rent in escrow and that
therefore G. L. c. 239, § 8A, recognizes his right to bring a
claim pursuant to G. L. c. 186, § 18, he does not argue that
such withholding of rent restored the statutory presumption of
retaliation. We therefore need not consider that issue. See
Mass.R.A.P. 16(a).
     15
       Nothing in Klairmont v. Gainsboro Restaurant, Inc., 465
Mass. 165, 173-175 (2013), is to the contrary. That case
                                                                  26


General's regulations, the Supreme Judicial Court has long

recognized that a landlord can violate c. 93A based on a

"substantial and material breach of the implied warranty of

habitability."   Cruz Mgmt. Co. v. Thomas, 417 Mass. 782, 790

(1994).16

     Of course, this does not mean that such a c. 93A violation

would result in the recovery of any additional actual damages,

though it may permit actual damages to be multiplied or provide

a separate basis for an award of attorney's fees and costs.

Ibid. (tenant "not entitled to an additional recovery of actual

damages for c. 93A violation" based on condition of apartment,

but this could serve as basis of multiple damages and attorney's

fees), citing Simon, 385 Mass. at 109-111.   Although a tenant is

not entitled to duplicative damages for claims arising out of

the same conditions, a tenant is entitled to rely on whichever



involved a different Attorney General regulation that
expansively purported to render any "act or practice [that]
fails to comply with existing [laws] meant for the protection of
the public's health, safety, or welfare" a per se violation of
c. 93A, without further constraining, in any factual way, the
"acts or practices" in question or recognizing a reasonable
period to cure the underlying noncompliance. See 940 Code Mass.
Regs. § 3.16(3) (1993).
     16
       Cruz does not stand for the proposition, as Moynahan
would have it, that a violation of the warranty of habitability,
in and of itself, constitutes a violation of c. 93A. Chapter
93A applies to "unfair or deceptive" conduct, Klairmont v.
Gainsboro Restaurant, Inc., supra at 173. In contrast,
"[c]onsiderations of fault do not belong in an analysis of [a
breach of] warranty" claim. Berman, 379 Mass. at 200.
                                                                   27


theory of damages provides him or her the greatest measure of

damages.   Wolfberg v. Hunter, 385 Mass. 390, 398-401 (1982).

    The judge rejected Moynahan's c. 93A claim based on his

finding that the landlord acted with alacrity to cure the code

violations as soon as it learned of them (delayed only by

Moynahan's own conduct).    As noted, the judge's endorsement of

the landlord's responsiveness is at odds with facts that the

landlord conceded.    Specifically, the landlord acknowledged that

it knew unit 13 had "water issues" even before Moynahan moved in

and that it failed to follow up on Moynahan's report of the

related mold issues in March, 2010.   See 940 Code Mass. Regs.

§ 3.17(1)(c), (1)(i) (1993).   Granted, the landlord claimed that

there were severe clutter problems in unit 13 at that time.

However, if these problems were as dire as the landlord claimed,

it should have followed up on them even though the tenant had

caused them.   Thus, the fact that the state of the apartment

presented multiple serious habitation problems tends to

exacerbate rather than excuse the landlord's inaction.

    It does not necessarily follow that Moynahan has made out

his c. 93A claim.    That claim was premised on material code

violations, and Moynahan bore the burden of demonstrating when

such violations first arose.    Because there was no clear error

in the judge's finding that Moynahan failed to substantiate any

material violations prior to August, 2011, Moynahan cannot rely
                                                                  28


on the landlord's inaction before that date to support his

c. 93A claim.   With the judge having found that the landlord

acted promptly once the material violations were brought to his

attention in August, 2011, the judge committed no error in

dismissing the c. 93A claim.

     4.   Quiet enjoyment.    Finally, we turn to Moynahan's claim

that the landlord interfered with his quiet enjoyment, see G. L.

c. 186, § 14, by entering the premises without prior notice or

authorization.17     The words "quiet enjoyment" have "little

inherent meaning," but their use reflects the statutory

incorporation of a "rich background in decisional law."     Simon,

supra at 102.   Relevant here, quiet enjoyment protects a

tenant's right to "freedom from serious interferences with [the]

tenancy" that "impair the character and value of the leased

premises."   Ibid.

     The judge ruled that there had been no interference with

Moynahan's quiet enjoyment because, by signing the lease,

Moynahan had given the landlord prior permission to enter for

the purposes of inspection and repair.18     To the extent that the


     17
       At trial, Moynahan also argued that the moisture and
ventilation problems, in addition to constituting a breach of
warranty, interfered with his quiet enjoyment. On appeal, he
pursues his quiet enjoyment claim based solely on the alleged
unlawful entry.
     18
       Specifically, section 9(e) of the lease states that the
tenant agrees "[t]o permit the [landlord], or his/her agents
                                                                   29


judge interpreted the lease as allowing the landlord to enter

the premises at any time so long as the entry was for the

purpose of inspection or repair, we do not adopt that broad

reasoning.   See G. L. c. 186, § 14 (lease terms waiving § 14 are

void).   Rather, we assume arguendo that implicit in the lease

were notions of reasonableness and that, barring true

emergencies, the parties would seek to negotiate a mutually

acceptable time and date for such entry.   Given the particular

facts of this case as found by the judge, we conclude that the

landlord's actions do not rise to the level of a serious

interference with the tenancy.   We therefore affirm the judge's

denial of the quiet enjoyment claim on this ground.     See

Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997).

    Moynahan has identified only one incident that reasonably

can be characterized as an unauthorized entry.   As noted, in

August, 2011, Moynahan reported that his apartment continued to

suffer persistent and serious moisture issues that were

worsening.   The landlord attempted to gain access to Moynahan's

unit to inspect the problem the very next day, despite

Moynahan's request that the inspection take place at the end of

the week when he could be present.   The landlord's agent

testified that she had been unable to physically enter the unit



. . . to enter the premises for the purpose of making reasonable
inspections and repairs and replacements[.]"
                                                                     30


because the door was blocked by a large box, but that she had

"put [her] head around the door to see the condition of the

apartment."

    In some circumstances, a single intrusion into a tenant's

home may constitute an interference with quiet enjoyment.     Cf.

Manzaro v. McCann, 401 Mass. 880, 884 (1988) (landlord's failure

to silence a ringing smoke alarm for one day violated right to

quiet enjoyment).   However, the context of the unauthorized

entry and the presence of mitigating circumstances are important

considerations in determining whether such an entry interfered

with the tenant's quiet enjoyment of the rented premises.      See

United Co. v. Meehan, 47 Mass. App. Ct. 315, 320 (1999).

    Here, the judge found, and Moynahan does not dispute, that

the landlord's purpose in its limited entry into the property

was to address what Moynahan himself characterized as a very

serious water leak, a condition likely to cause damage to both

Moynahan's property and that of other tenants if ignored.     Cf.

ibid. (where landlord acts prudently to protect the rights and

property of both the tenant and other residents, a single entry

did not violate the covenant of quiet enjoyment).   Moynahan did

not claim that the landlord interfered with his belongings

during the entry.   Finally, while the landlord's desire to enter

the premises immediately may seem inconsistent with its having

left the previously reported mold problem unattended for the
                                                                   31


prior one and one-half years, the landlord should not be faulted

for finally taking the problem seriously.     Having reported

"seriously unhealthy" and rapidly deteriorating conditions in

the apartment warranting "emergency measure[s]," the judge found

that Moynahan did not act reasonably in denying the landlord

access to address the problem for several days.

    In sum, the landlord's entry into the apartment was neither

unreasonable nor so significant an intrusion upon Moynahan's

possession as to impair the character or value of his tenancy

and did not violate G. L. c. 186, § 14.     We therefore affirm the

judgment in favor of the landlord with regard to Moynahan's

alleged breach of the covenant of quiet enjoyment, albeit on

narrower grounds than those relied upon by the judge.

    5.   Attorney's fees.   Moynahan has requested, and is

entitled to, an appropriate award of attorney's fees and costs

for successfully prosecuting his claim for retaliation pursuant

to G. L. c. 186, § 18.   As to fees relating to this part of the

appeal, within fifteen days Moynahan shall submit a statement of

his attorney's fees and costs in accordance with the procedure

specified in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), and

within fifteen days thereafter, the landlord may submit an

opposition to the amount requested.

    Disposition.   We reverse the judgment insofar as it

concluded that the landlord did not violate G. L. c. 186, § 18,
                                                                 32


and we remand that issue for a determination of damages and for

a determination of reasonable attorney's fees and costs incurred

in prosecuting that claim in the trial court.    We vacate so much

of the judgment that credited Moynahan only a five percent

reduction in rent for May through December, 2012, as damages for

a breach of the warranty of habitability with respect to the

ventilation issues in his apartment, and we remand that issue

for further proceedings consistent with this opinion.   The

judgment is otherwise affirmed.

                                   So ordered.
