Not by themselves. In a February 2025 decision, the Appeals Court upheld an eviction after finding that a mouse problem that was not a serious infestation, a one-day accidental water shutoff, a neighbor’s barking dog, and loss of access to a barn did not breach the warranty of habitability or the covenant of quiet enjoyment. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.
What happened
In 2017 one of the owners of a property in Goshen allowed the occupant to move into a home on the land in exchange for paying his own utilities. For part of the time he lived there, mice were in the basement. After he asked the local health department to inspect, the health director issued a correction order in August 2022. The owners had contractors remove damaged insulation and seal gaps, then hired a pest control company, and the problem was resolved by December 2022. On one day in August 2022, water to the home was accidentally shut off and restored the next day. A dog belonging to another resident of the property sometimes ran unleashed and barked at him, and at some point he lost access to a barn on the property. He received a ninety-day notice to quit in March 2022, did not leave, and defended the eviction by claiming breach of the warranty of habitability and the covenant of quiet enjoyment. After a bench trial, the Housing Court ruled for the owners.
What the court decided
In Gewecke v. Smith, No. 23-P-1014 (Mass. App. Ct. February 14, 2025) (Rule 23.0 decision), the Appeals Court affirmed.
Who can raise these defenses. The trial judge found the occupant was a tenant at sufferance; he argued he was a tenant at will. The court said the difference did not matter, because both can raise defenses and counterclaims under G.L. c. 239, § 8A. See Meikle v. Nurse, 474 Mass. 207 (2016). When a tenant raises a § 8A defense, the judge must first decide whether the landlord is liable on it. Ferreira v. Charland, 103 Mass. App. Ct. 194 (2023).
Warranty of habitability. The warranty requires, at a minimum, that a rental comply with the State sanitary code. South Boston Elderly Residences, Inc. v. Moynahan, 91 Mass. App. Ct. 455 (2017). But a code violation does not automatically breach the warranty; the question is whether the home is fit to live in, and minor violations may not be enough. The judge considered the mouse evidence and found no serious infestation, and the record showed the owners responded to the correction order. The judge also found the one-day water outage did not reduce the rental value of the home. Those findings were supported by the evidence, and credibility is for the trial judge.
Quiet enjoyment. The covenant of quiet enjoyment, G.L. c. 186, § 14, protects tenants from serious interference with their tenancy, and a landlord violates it when its acts or omissions impair the value of the rental. Jablonski v. Clemons, 60 Mass. App. Ct. 473 (2004). The occupant did not prove he was entitled to exclusive use of the barn. The dog encounters were relatively minor; animal control did not order any change, and the judge believed the dog’s owner made reasonable efforts to control it. The water shutoff was short, accidental and not caused by negligence or intentional conduct. Because he proved no defense or counterclaim, the owners were entitled to possession.
What this means for you
This case is a reminder that a defense to eviction based on conditions has to be serious and proven. A landlord who responds to a health department order, fixes a short outage quickly, and is not shown to owe the tenant exclusive use of a disputed space will often defeat these claims. Judges look closely at how bad the problem was, how long it lasted, and what the landlord did about it.
The lesson for tenants is to build the record. Calling the board of health was the right step, and the inspection produced a correction order. But the judge also heard evidence that the problem was addressed. If conditions are serious and continue after notice, document that clearly. If your lease or agreement gives you use of a space like a garage or barn, keep proof of it.
What to do now
- Report problems to your landlord in writing and request a board of health inspection for code issues.
- Keep a log with dates, photos and videos showing how serious and how long-lasting each problem is.
- Keep any written agreement that shows which spaces, such as a barn, garage or yard, are part of your rental.
- If you receive a notice to quit, get advice on which defenses are strong before your trial.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. Housing Court deadlines are short.
