The Appeals Court affirmed an eviction for nonpayment from federally subsidized housing, holding that the judge did not clearly err in finding that sanitary code violations, which the landlord had repaired, were not serious enough to breach the warranty of habitability. It also held that the tenants waived several arguments, including a disability accommodation claim, by not raising them in the trial court. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.
What happened
A tenant and his son lived in a subsidized apartment. The landlord served a notice to quit for nonpayment and filed an eviction against the father, then served a second notice to quit on both tenants. At mediation with a court housing specialist, the tenants agreed to let the landlord add the son to the case in exchange for an immediate trial date. At trial, without lawyers, the tenants relied on the father’s testimony and board of health reports. The board had cited the landlord for problems including a bathroom vent with no suction, a slow-draining tub, a loose shower fixture and a loose front door lock, and later reports showed all of them corrected. The judge awarded the landlord possession and unpaid rent and rejected the tenants’ habitability, quiet enjoyment and G.L. c. 93A counterclaims. The tenants then hired a lawyer, who moved for reconsideration, and the motion was denied.
What the court decided
In PRI Old Mill Glen LLC v. Sawyer, No. 24-P-594 (Mass. App. Ct. May 14, 2025) (Rule 23.0 decision), the court affirmed the judgment and the denial of reconsideration.
The stipulation. The tenants argued the judge should not have approved their agreement without a hearing. They never raised this in the trial court, even in the motion their lawyer filed, so it was waived. Arguments raised for the first time on appeal are generally not considered. Weiler v. PortfolioScope, Inc., 469 Mass. 75 (2014). The court also noted that a housing specialist reviewed and signed the agreement with the tenants.
The notice to quit. A legally effective notice to quit is part of the landlord’s case. It must substantially comply with the law, and only an error with a meaningful practical effect makes it defective. Cambridge St. Realty, LLC v. Stewart, 481 Mass. 121 (2018). The tenants never pointed to any such error, and the father agreed at trial that the landlord had made its case.
The accommodation. When a party in an eviction case alerts the court to a disability that needs accommodation, the court, if it finds a disability, must provide a reasonable one. Adjartey v. Central Div. of the Hous. Court Dep’t, 481 Mass. 830 (2019). Here, passing remarks that the son had a disability, and the son raising his hand from the gallery, were not a request for an accommodation so he could testify. The father never called him as a witness. Because no one asked, the issue was waived.
Habitability. The warranty of habitability requires a landlord to keep the unit in line with the State sanitary code, but a code violation alone does not automatically prove a material breach. South Boston Elderly Residences, Inc. v. Moynahan, 91 Mass. App. Ct. 455 (2017). The father admitted many problems had been fixed, and the reports confirmed the repairs. The judge did not clearly err in finding the violations not significant enough.
Quiet enjoyment. The father blamed a neighbor’s hygiene for odors and pests. The tenants did not explain what the landlord could have done about the neighbor’s personal habits, so the argument was not adequately presented.
What this means for you
This is a hard result for tenants, and it carries clear lessons. First, not every code violation wins a habitability claim. The question is whether the violations were substantial or significant. Here, the judge found them minor, and the reports showed they were repaired.
Second, you must ask for what you need, out loud and on the record. Under G.L. c. 239, § 8A, you can raise repair claims as defenses in a nonpayment case, but you still have to prove them. If you or a household member needs an accommodation to take part in the case or to testify, say so clearly to the judge. Mentioning a disability is not the same as asking for help.
Third, if you hire a lawyer after trial, every issue you want reviewed should go into the post-trial motion. Issues left out are usually lost.
What to do now
- Keep a dated log and photos of every condition, every repair request and every repair.
- Request a board of health inspection and get copies of every report, including follow-up reports.
- If you or a family member needs an accommodation in court, ask the judge directly and in writing, and say what you need.
- Read any mediation agreement before you sign it, and ask the housing specialist what rights you are giving up.
- Get advice before trial, not after. Arguments not made in the trial court are usually waived.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. Housing Court deadlines are short.
