No. When a tenant wins attorney’s fees on a counterclaim, the landlord cannot reduce that award by subtracting its own attorney’s fee award from it. This is a published decision of the Massachusetts Appeals Court, so it is binding statewide.
What happened
The tenant rented a basement apartment where the carpet stayed wet despite the landlord’s efforts to fix it. She later moved, by agreement, to a top floor unit where ice dams caused water to leak into the living room and two bedrooms. The landlord filed two eviction cases for unpaid rent, and the tenant counterclaimed for breach of the warranty of habitability and for unfair and deceptive practices under the consumer protection law. While the disputes went on, the landlord applied each rent payment to the oldest charges on her ledger, including disputed attorney’s fees and late fees, instead of to the current month’s rent. After a trial, the judge found the tenant owed rent, but also found habitability breaches in both apartments and a consumer protection violation in the way the landlord applied her payments.
What the court decided
Both sides were awarded attorney’s fees. The landlord got $36,167.40 under a fee clause in the lease. The tenant got $49,128 under the consumer protection statute. The trial judge then subtracted one fee award from the other, leaving the tenant with only the difference. The Appeals Court said that was wrong and ordered both full fee awards reinstated. See AvalonBay Communities, Inc. v. Vardenski, No. 24-P-1358 (Mass. App. Ct. July 20, 2026).
The court relied on the set-off statute, G.L. c. 235, § 27. It lets executions on judgments between the same parties be set off against each other, but not as to the portion on which an attorney holds a lien. Under G.L. c. 221, § 50, a lawyer who brings a claim or counterclaim for a client has a lien for reasonable fees on that claim, on the judgment, and on any money it produces. The court read § 27 to mean that if either judgment includes a portion subject to an attorney’s lien, a competing fee award cannot be set off against it.
The court drew on PGR Mgt. Co. v. Credle, 427 Mass. 636 (1998). There, the Supreme Judicial Court held that a tenant’s fee award could not be set off against a landlord’s judgment for unpaid rent, because the tenant’s lawyer would end up paying for the case. The Appeals Court explained that the same problem arises when two fee awards are netted out. It also relied on Ropes & Gray LLP v. Jalbert, 454 Mass. 407 (2009), which describes the lien statute as protecting a lawyer’s right to be paid for legal work.
The landlord lost the rest of its appeal too. The court found no abuse of discretion in the ruling that the landlord’s payment practices were unfair or deceptive under G.L. c. 93A, § 9, or in the award of double damages. One example the judge found: the landlord served a notice to quit claiming unpaid rent for months the tenant had actually paid, because it had moved her payments onto the disputed charges. The court also upheld the size of the tenant’s fee award. The judge had cut the hours requested and used the standard lodestar method. The tenant was allowed to apply for her fees on appeal as well.
What this means for you
Many Massachusetts leases have a clause that lets the landlord collect its legal fees if it wins. Tenants sometimes worry that even if they win a counterclaim, the landlord’s fee bill will wipe out anything they recover. This decision limits that risk. If you win fees on a counterclaim, such as a consumer protection claim, the landlord cannot simply subtract its own fees from yours. Each award stands on its own.
The decision also shows what courts look at in rent ledgers. Moving your rent payments onto disputed fees, and then claiming you did not pay rent, can be an unfair or deceptive practice.
There is a trap here too. The tenant still owed back rent, and the landlord’s fee award stayed in place. Her counterclaims reduced what she owed but did not erase it.
What to do now
- Ask your landlord for a full rent ledger and check how each payment was applied, month by month.
- Write down every repair problem, with dates, photos and copies of your complaints to the landlord.
- Read the attorney’s fee clause in your lease so you know what you could owe if you lose.
- If you are served with a notice to quit or a summary process complaint, file your answer and counterclaims on time.
- Get legal advice before you accept or reject a settlement offer, since that choice can affect what fees you recover later.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. Housing Court deadlines are short.
Prior results do not guarantee a similar outcome.
