Landlords in Massachusetts often engage in what is referred to by statute as a “retaliatory eviction” even when the landlord has no idea what they’re doing is retaliatory or otherwise prohibited. The Commonwealth, through G.L ch. 239 sec. 2A has created a list of tenant activities which are considered protected by statute. These include:
-Petitioning the Court for redress of grievances, the subject matter of the action being the residence or dwelling which they currently occupy;
-Joining a Tenant’s Union or Association;
-Calling the local board of health or health department to complain about the condition of the dwelling, or
-Requesting, in writing to the landlord, that certain repairs be made.
So how exactly are these activities protected? If a Landlord initiates an action to terminate the tenant’s tenancy by either:
(a) Sending the tenant a 14-Day Notice to Quit or 30-Day Notice to Quit, or
(b) Initiates a Summary Process, or
(c) Otherwise engages in some activity that materially alters the tenancy
within 6 months of a tenant engaging in either of the top three protected activities, there exists a rebuttable presumption that the landlord’s actions were retaliatory. What this means is that if the Tenant asserts retaliatory eviction by means of an affirmative defense or counterclaim, the burden is on the Landlord to prove that the tenancy wasn’t terminated or otherwise altered in retaliation for the tenant’s engaging in the protected activity.
This statute is particularly hard for Landlords to comply will, as recent case law has provided that the statute IS (emphasis added) applicable to non-payment cases. (You read that right attorneys out there). In other words, what many street-wise tenants will do is first engage in some protected activity, then stop paying the rent.
My Advice: Before you send out that Notice to Quit, make sure you speak to a landlord-tenant attorney. They can review the facts and independently asses whether 239 2A will play a hand if litigation is anticipated.