No, not just by calling it a “cause” case. The Appeals Court reversed an eviction judgment because the trial judge wrongly barred the tenants from raising retaliation and their counterclaims, and because the landlord filed the case before the notice to quit it relied on had run out. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.
What happened
The tenants rented an apartment in Lynn starting in 2020. In late 2021 they went to the Housing Court and got an order requiring the landlord to remind residents that smoking was not allowed and that animals needed approval. The same day that order entered, the landlord sent the tenants a notice of a lease violation for having pets. After the tenants did not pay December 2021 rent, the landlord served a notice to quit for nonpayment on January 3, 2022, and a second notice on February 3, 2022, citing nonpayment and a pet violation. The landlord filed the eviction on March 21, 2022. The tenants answered with defenses and counterclaims, including retaliation, disability discrimination, failure to make a reasonable accommodation, bad conditions and breach of quiet enjoyment. At trial, the judge treated the case as one for cause, ruled that the tenants could not present counterclaims, and barred evidence about conditions and retaliation. The jury found for the landlord on possession and awarded damages in line with the unpaid rent.
What the court decided
The Appeals Court reversed in DeSimone v. Tarasuik, No. 23-P-1297 (Mass. App. Ct. January 17, 2025) (Rule 23.0 decision).
The notice to quit sets the case. An eviction is limited to the reasons stated in the notice to quit. Adjartey v. Central Div. of the Hous. Court Dep’t, 481 Mass. 830 (2019). Both notices here cited nonpayment of rent, and the landlord’s own lawyer told the judge nonpayment was what the landlord was going for. The jury’s award matched the unpaid rent claim.
Section 8A applied. G.L. c. 239, § 8A, lets a tenant raise defenses and counterclaims about the tenancy when the eviction is brought on a notice to quit for nonpayment of rent, or after a no-fault termination. Because this case rested at least partly on nonpayment, the judge should have allowed, at a minimum, counterclaims to offset the rent the landlord sought.
Other defenses do not depend on § 8A. Even in a purely fault-based case, § 8A is not the only source of defenses in summary process. Bank of Am., N.A. v. Rosa, 466 Mass. 613 (2013). Retaliation is available whatever the basis for the eviction. Youghal, LLC v. Entwistle, 484 Mass. 1019 (2020). So is a reasonable accommodation defense. City Wide Assocs. v. Penfield, 409 Mass. 140 (1991). Under G.L. c. 239, § 2A, it is a defense that the landlord acted in reprisal for the tenant obtaining relief in a housing case, and a notice to quit within six months of that relief creates a rebuttable presumption of retaliation. The lease violation notice came the same day as the tenants’ court order. It was error to rule that retaliation was unavailable.
The case was filed too early. A landlord may not file before the termination date in the notice to quit. Youghal, 484 Mass. 1019. The February notice said the landlord could not sue until the end of the next full rental period after the tenants received it. That period was March, so April 1, 2022, was the earliest filing date. Filing on March 21 meant the judge could not rely on the February notice. The court also noted that a termination notice must be unequivocal, Maguire v. Haddad, 325 Mass. 590 (1950), and that several notices with different dates may not be.
What this means for you
If your landlord is suing you for unpaid rent, even alongside a claimed lease violation, you generally have the right, subject to conditions in the statute, to raise counterclaims about conditions and other tenancy problems to reduce what you owe. A judge’s label for the case does not erase that right.
Some defenses go further. Retaliation and disability accommodation can be raised in any eviction, including one based only on your conduct. Timing matters too. If the landlord files before the notice period has fully run, the case can fail on that ground alone.
Finally, watch for a pattern. If a landlord sends a notice to quit or files an eviction within six months after you reported violations or went to court, the law presumes retaliation.
What to do now
- Keep every notice to quit and write down the date you received each one.
- Count the dates. Compare the filing date on the summons to the deadline in the notice.
- List every complaint, inspection or court order you obtained in the past six months.
- File a written answer that lists all your defenses and counterclaims, including retaliation, conditions and accommodation.
- If a judge limits your defenses at trial, state your objection on the record.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. Housing Court deadlines are short.
