Tenant's Answer, Affirmative Defenses, and Counterclaims in Summary Process — Massachusetts

TENANT'S ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIMS — SUMMARY PROCESS — COMMONWEALTH OF MASSACHUSETTS

(For Use with Trial Court Approved Form Pursuant to USPR Rule 3)

TABLE OF CONTENTS

1. Caption
2. Notice of Transfer to Housing Court (If Applicable)
3. Demand for Jury Trial
4. General Denials and Admissions
5. Affirmative Defenses
6. Counterclaims
7. Prayer for Relief
8. Verification
9. Discovery Demand (USPR Rule 7)
10. Certificate of Service
11. Massachusetts Practice Notes
12. Sources and References

1. CAPTION

COMMONWEALTH OF MASSACHUSETTS

THE TRIAL COURT

[HOUSING COURT DEPARTMENT — [DIVISION] DIVISION] / [DISTRICT COURT DEPARTMENT — [DIVISION] DIVISION] / [BOSTON MUNICIPAL COURT DEPARTMENT — [DIVISION] DIVISION]

Docket No.: [________________________________]

SUMMARY PROCESS — RESIDENTIAL — M.G.L. c. 239

2. NOTICE OF TRANSFER TO HOUSING COURT (IF APPLICABLE)

(Use this section ONLY if the case was filed in District Court or Boston Municipal Court and the Defendant elects to transfer.)

The Defendant, [TENANT FULL LEGAL NAME], hereby gives notice of the exercise of his/her/their right to TRANSFER this summary process action to the [Eastern / Central / Western / Northeast / Southeast / Metro South] Division of the Housing Court Department, pursuant to M.G.L. c. 185C, § 20.

The Premises that are the subject of this action are located in [CITY/TOWN], which is within the territorial jurisdiction of the above-named Housing Court Division.

The Clerk-Magistrate is respectfully requested to transmit the case file forthwith.

Dated: [__/__/____]

____________________________________________

[TENANT NAME / Tenant Counsel]

3. DEMAND FOR JURY TRIAL

The Defendant hereby DEMANDS A TRIAL BY JURY on all issues so triable, in accordance with Article 15 of the Massachusetts Declaration of Rights, M.G.L. c. 239, and applicable Trial Court Standing Orders.

4. GENERAL DENIALS AND ADMISSIONS

The Defendant responds to the Complaint as follows. (Number the responses to correspond to the numbered paragraphs of the Complaint.)

Paragraph 1 (Caption / Parties): [Admit / Deny / Insufficient information to admit or deny].

Paragraph 2 (Premises): [Admit / Deny / The Defendant admits residence at the Premises but denies the remaining allegations].

Paragraph 3 (Tenancy): [Admit / Deny / The Defendant admits the existence of a tenancy but denies the characterization in the Complaint, on the ground that...].

Paragraph 4 (Notice to Quit): [Denied. The Notice to Quit attached as Exhibit A is defective for the reasons set forth in the Affirmative Defenses below].

Paragraph 5 (Holdover): [Denied. The Defendant remains in lawful possession of the Premises because the Notice to Quit was defective AND the tenancy has not been validly terminated].

Paragraph 6 (Rent Owed): [Admit / Partially admit / Deny. The Defendant admits that rent is unpaid in the amount of $[__________] but denies that the full amount claimed by Plaintiff is due, on the ground that the Defendant has been entitled to rent abatement under the implied warranty of habitability and other defenses set forth below, and is entitled to setoff for the counterclaims pleaded below].

Each and every other allegation of the Complaint not herein expressly admitted is denied.

5. AFFIRMATIVE DEFENSES

The Defendant pleads the following affirmative defenses:

5.1. First Defense — Defective Notice to Quit

The Notice to Quit attached as Exhibit A to the Complaint is defective and fails to confer subject-matter jurisdiction on this Court because (check all that apply):

☐ The Notice did not include the statutory cure-rights notification required by M.G.L. c. 186, § 12;
☐ The Notice misstates the amount of rent due;
☐ The Notice was not properly served on the Defendant;
☐ The Notice does not terminate at the end of a rental period (for § 12 non-rent terminations);
☐ The Notice fails to identify the Premises with reasonable certainty;
☐ The Notice provides less than the statutory notice period;
☐ The Notice is internally inconsistent or equivocal;
☐ The Plaintiff accepted rent or use-and-occupancy after the Notice expired, waiving the Notice;
☐ Other: [________________________________].

The Massachusetts Supreme Judicial Court strictly construes notices to quit; a defective notice deprives the Court of jurisdiction over the summary process action and requires dismissal.

5.2. Second Defense — Statutory Right to Cure (M.G.L. c. 186, § 11A)

(Available where Defendant occupies under a written lease and the Notice to Quit was given for nonpayment of rent under M.G.L. c. 186, § 11A.)

The Defendant has the statutory right under M.G.L. c. 186, § 11A to cure the rent default by paying or tendering, on or before the day this answer is due, all rent then due plus interest and costs of this action. The Defendant [has tendered / hereby tenders / intends to tender] $[__________] in cure pursuant to § 11A. Upon proper cure, the lease is reinstated and this action must be dismissed.

5.3. Third Defense — Statutory 10-Day Cure (M.G.L. c. 186, § 12)

(Available for § 12 nonpayment notices to tenants at will who have not received a similar notice in the past 12 months.)

The Defendant exercised the statutory cure right under M.G.L. c. 186, § 12 by tendering the full amount of rent due within ten (10) days after receipt of the Notice to Quit, on [__/__/____]. The tender was [accepted / wrongfully refused] by the Plaintiff. The tenancy was not terminated and this action must be dismissed.

5.4. Fourth Defense — Implied Warranty of Habitability (Hemingway)

The Plaintiff, at all relevant times, materially breached the implied warranty of habitability owed to the Defendant under Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973), by failing to maintain the Premises in compliance with the State Sanitary Code (105 C.M.R. 410.000) and other applicable habitability standards. Specifically, the Premises has/had the following violations (list with dates):

The Defendant gave the Plaintiff notice of the defects [orally on / in writing on / via municipal code-enforcement complaint dated] [__/__/____]. The Plaintiff failed to remedy the defects within a reasonable time. As a consequence, the Defendant's rent obligation has been abated, in whole or in part, for the period(s) during which the violations existed, in an amount to be determined at trial.

5.5. Fifth Defense — Retaliation (M.G.L. c. 186, § 18)

The Notice to Quit and this action were issued by the Plaintiff within six (6) months after the Defendant engaged in protected activity, including (check all that apply):

☐ Reported violations of the State Sanitary Code (105 C.M.R. 410.000) to [Inspectional Services / Board of Health / other code authority] on [__/__/____];
☐ Withheld rent for habitability defects;
☐ Joined or organized a tenants' union or other tenants' association;
☐ Filed a prior legal action against the Plaintiff;
☐ Furnished testimony in a legal proceeding affecting the Plaintiff;
☐ Made a complaint to the Plaintiff in writing concerning the Premises on [__/__/____];
☐ Other protected activity: [________________________________].

Pursuant to M.G.L. c. 186, § 18, the Defendant's protected activity within the preceding six months creates a REBUTTABLE PRESUMPTION that the Plaintiff's notice and action are reprisal. The Plaintiff cannot rebut this presumption by clear and convincing evidence of independent justification.

5.6. Sixth Defense — Discrimination (M.G.L. c. 151B; FHA)

The Plaintiff has discriminated against the Defendant on the basis of (check all that apply):

☐ Race / color / national origin / ancestry
☐ Religion / creed
☐ Sex / gender / gender identity / sexual orientation
☐ Familial status (presence of children)
☐ Disability (failure to provide reasonable accommodation)
☐ Source of income (Section 8 / MRVP / AHVP / VASH voucher) — protected under c. 151B, § 4(10)
☐ Receipt of public assistance
☐ Age
☐ Veteran/active-military status
☐ Marital status
☐ Status as victim of domestic violence (M.G.L. c. 239, § 2A; VAWA)
☐ Children under 6 in connection with lead paint (c. 111, § 199A; c. 151B)

Specifics: [________________________________].

5.7. Seventh Defense — Failure to Comply with Lead Law (M.G.L. c. 111, § 199A)

The Plaintiff failed to provide the Defendant with the Tenant Lead Law Notification and Certification required by M.G.L. c. 111, § 199A and 460 C.M.R. 6.00, and/or has discriminated against the Defendant's family with children under six (6) in connection with lead-paint hazards on the Premises.

5.8. Eighth Defense — Security Deposit Violations (M.G.L. c. 186, § 15B)

The Plaintiff has materially violated the security deposit statute, M.G.L. c. 186, § 15B, in one or more of the following respects:

☐ Failed to deposit the security deposit in a separate, interest-bearing account in a Massachusetts bank, properly identified to the Defendant;
☐ Failed to provide a receipt for the deposit identifying the bank;
☐ Failed to provide a Statement of Condition within ten days after the start of tenancy;
☐ Failed to pay annual interest on the security deposit;
☐ Imposed a "pet deposit" or other deposit not authorized by § 15B;
☐ Failed to return the deposit upon termination, or failed to provide an itemized statement of damages signed under the pains and penalties of perjury;
☐ Other: [________________________________].

These violations support a counterclaim for treble damages, interest, costs, and reasonable attorney's fees.

5.9. Ninth Defense — Waiver / Estoppel / Accord and Satisfaction

The Plaintiff has waived the right to terminate by [accepting rent after the Notice to Quit / making representations on which the Defendant reasonably relied / entering an agreement that constitutes accord and satisfaction]. Specifics: [________________________________].

5.10. Tenth Defense — Reasonable Accommodation (FHA / c. 151B)

The Defendant has a disability within the meaning of the federal Fair Housing Act and M.G.L. c. 151B and timely requested reasonable accommodation from the Plaintiff (e.g., grace period for rent due to delayed disability income, modification of pet policy for service/support animal, extension to cure for medical reasons). The Plaintiff failed to engage in the interactive process and failed to provide the requested accommodation, in violation of 42 U.S.C. § 3604(f)(3)(B), 24 C.F.R. § 100.204, and M.G.L. c. 151B, § 4(7A).

5.11. Eleventh Defense — VAWA Protection (Subsidized Housing)

(Available in covered subsidized housing — Section 8, public housing, etc.)

The Defendant is a victim of domestic violence, dating violence, sexual assault, or stalking, and is protected from eviction on that basis under the Violence Against Women Act, 34 U.S.C. § 12491, and Massachusetts G.L. c. 239, § 2A.

5.12. Twelfth Defense — Failure to State a Claim

The Complaint fails to state a claim upon which relief can be granted (USPR Rule 5; Mass. R. Civ. P. 12(b)(6)).

5.13. Reservation

The Defendant reserves the right to amend or supplement these affirmative defenses upon completion of discovery and as further facts become known.

6. COUNTERCLAIMS

The Defendant asserts the following counterclaims pursuant to USPR Rule 5 and M.G.L. c. 239, § 8A:

6.1. Count I — Breach of Implied Warranty of Habitability (Hemingway)

The Defendant incorporates by reference the factual allegations in Section 5.4 above. The Plaintiff materially breached the implied warranty of habitability owed to the Defendant. As a result, the Defendant is entitled to rent abatement for the periods of breach, in an amount equal to the difference between the rent actually paid (or owed) and the fair rental value of the Premises in their defective condition. Berman & Sons, Inc. v. Jefferson, 379 Mass. 196 (1979). Defendant's claimed abatement total: $[__________].

6.2. Count II — Breach of Quiet Enjoyment (M.G.L. c. 186, § 14)

The Plaintiff [interrupted utility service / refused to make essential repairs / engaged in harassing entries / engaged in other interference] in violation of the covenant of quiet enjoyment under M.G.L. c. 186, § 14. Section 14 provides for damages of the greater of three (3) months' rent or actual damages, plus reasonable attorney's fees and costs. Defendant claims $[__________] (three months' rent) plus actual damages of $[__________].

6.3. Count III — Security Deposit Violations (M.G.L. c. 186, § 15B)

The Defendant incorporates by reference Section 5.8 above. M.G.L. c. 186, § 15B provides that for violations of the deposit-into-account, return-of-deposit, statement-of-damages, or transfer-to-successor requirements, the Defendant is entitled to recover three (3) times the amount of the security deposit, plus 5% interest, court costs, and reasonable attorney's fees.

Security deposit amount: $[__________] × 3 = $[__________] in statutory damages.

6.4. Count IV — Consumer Protection Act / Chapter 93A (M.G.L. c. 93A)

The Plaintiff's conduct, including (i) failure to maintain the Premises in compliance with the State Sanitary Code; (ii) violations of the security deposit statute; (iii) violations of the lead law (where applicable); (iv) retaliation under c. 186, § 18; and (v) failure to comply with the Attorney General's regulations at 940 C.M.R. 3.17, constitutes one or more unfair or deceptive acts or practices in violation of M.G.L. c. 93A, § 2. As a counterclaim in this summary process action, no demand letter is required.

The Defendant is entitled to:

• Actual damages (or statutory minimum of $25);
• Double or treble damages for willful or knowing violations;
• Reasonable attorney's fees and costs.

6.5. Count V — Retaliation (M.G.L. c. 186, § 18)

The Defendant incorporates by reference Section 5.5 above. The Plaintiff's notice and this action are reprisal for the Defendant's protected activity. M.G.L. c. 186, § 18 entitles the Defendant to:

• Actual damages (or statutory damages of one to three months' rent, whichever is greater);
• Costs;
• Reasonable attorney's fees.

6.6. Count VI — Discrimination (M.G.L. c. 151B; FHA)

(Plead to the extent factually supported. MCAD or HUD pre-filing may be required for direct claims; defensive use as counterclaim is permitted in eviction.)

The Plaintiff has unlawfully discriminated against the Defendant in violation of M.G.L. c. 151B, § 4 and the federal Fair Housing Act, 42 U.S.C. §§ 3601-3619. Damages, statutory penalties, and attorney's fees are claimed.

6.7. Count VII — Negligence / Premises Liability (Where Applicable)

(Plead where the habitability defects caused personal injury or property damage to the Defendant.)

The Plaintiff's failure to maintain the Premises in safe condition was negligent and caused [personal injury / property damage] to the Defendant. Damages: $[__________].

7. PRAYER FOR RELIEF

WHEREFORE, the Defendant respectfully prays that this Court:

A. Dismiss the Complaint and enter judgment for the Defendant on all counts;

B. Deny the Plaintiff's request for execution for possession;

C. Award the Defendant rent abatement on the implied warranty of habitability counterclaim;

D. Award the Defendant statutory treble damages on the security deposit and Chapter 93A counterclaims;

E. Award the Defendant the greater of three (3) months' rent or actual damages on the M.G.L. c. 186, § 14 quiet-enjoyment counterclaim;

F. Award the Defendant retaliation damages under M.G.L. c. 186, § 18;

G. Award the Defendant reasonable attorney's fees and costs on each of the foregoing counterclaims;

H. Order any rent owing be paid into escrow pursuant to M.G.L. c. 239, § 8A pending resolution of the counterclaims;

I. In the alternative, if any judgment for possession is entered for the Plaintiff, STAY EXECUTION for up to six (6) months pursuant to M.G.L. c. 239, § 9 [for elderly/disabled household members] / three (3) months otherwise, on equitable terms;

J. Grant such other and further relief as this Court deems just and proper.

8. VERIFICATION

I, [DEFENDANT NAME], being duly sworn, depose and say that I am the Defendant in the foregoing summary process action; that I have read the foregoing Answer, Affirmative Defenses, and Counterclaims; and that the factual statements made therein are true to the best of my knowledge, information, and belief.

Signed under the pains and penalties of perjury this [____] day of [__________], 20____.

____________________________________________

[DEFENDANT NAME]

[Address]

[Telephone]

[Email]

9. DISCOVERY DEMAND (USPR RULE 7)

Pursuant to Mass. Uniform Summary Process Rule 7, the Defendant hereby serves the following discovery demands, the timely service of which automatically postpones trial by two (2) weeks:

☐ Interrogatories to the Plaintiff (attached separately) — not to exceed 30 (USPR Rule 7(c)).

☐ Document Requests to the Plaintiff (attached separately).

☐ Requests for Admissions to the Plaintiff (attached separately) — not to exceed 30.

The Plaintiff is required to respond within ten (10) days of service. Trial is postponed two (2) weeks from the originally scheduled trial date pursuant to Rule 7(b).

10. CERTIFICATE OF SERVICE

I, [TENANT NAME / Counsel], certify that on [__/__/____], I caused a true and accurate copy of the foregoing TENANT'S ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIMS (and accompanying discovery demands, where served) to be served upon the Plaintiff (or Plaintiff's counsel of record) by:

☐ In-hand delivery to: [________________________________]
☐ First-class mail, postage prepaid, to: [________________________________]
☐ Email (if consented to in writing by Plaintiff/counsel): [________________________________]
☐ Facsimile (if consented to): [________________________________]

A true copy was simultaneously filed with the Clerk-Magistrate of the [Court Division] on [__/__/____].

____________________________________________

[TENANT NAME / Counsel]

11. MASSACHUSETTS PRACTICE NOTES

11.1. Why an Answer Matters Even If You Plan to Move Out

Even if the Defendant intends to vacate, filing an answer with counterclaims can:

• Convert a 14-day eviction into a contested action in which counterclaims often dwarf the rent owed;
• Provide leverage for a "cash for keys" / move-out settlement with the security deposit returned in full;
• Obtain time to find alternative housing through the discovery postponement and stay of execution;
• Avoid an eviction record on CORI / housing court records that affects future rentals.

11.2. Section 8A Rent Escrow

Under M.G.L. c. 239, § 8A, when the tenant raises habitability or other condition-based defenses, the court may order the tenant to pay rent into escrow with the clerk-magistrate during the pendency of the action. This demonstrates good faith, prevents the landlord from arguing the tenant is freeloading, and preserves the rent for ultimate distribution after counterclaim adjudication.

11.3. Mediation and Tenancy Preservation

Most Housing Court divisions offer free mediation at the trial date with experienced housing mediators. Mediated settlements ("agreement for judgment with stay") commonly include payment plans, repair commitments, RAFT-funded back-rent payoffs, and "no eviction record" clauses. The Tenancy Preservation Program (TPP) provides clinical assessment and intervention where mental health or substance use issues underlie the eviction.

11.4. Right to Counsel

Free legal representation is available at every Housing Court Division through:

• Volunteer Lawyers Project (VLP) — Greater Boston
• Greater Boston Legal Services (GBLS)
• Community Legal Aid (CLA) — Central / Western MA
• Veterans Legal Services
• "Lawyer for the Day" programs at each Housing Court
• Eviction Diversion Initiative — pilot programs in select counties

Tenants making under 200% of the federal poverty level generally qualify. Apply on the day of the trial if not before.

11.5. Rental Assistance Resources

Apply IMMEDIATELY to:

• RAFT (Residential Assistance for Families in Transition) — up to $7,000 over 12 months; applied through HCEC regional agency
• HomeBASE — re-housing assistance for families
• ERAP — federal Emergency Rental Assistance Program (where still funded)
• HCEC (Housing Consumer Education Centers) — referrals
• MA 2-1-1 (Mass. United Way) — for subsidy navigation

A pending RAFT application supports a continuance and is often dispositive in mediation.

11.6. Appeal Rights

A tenant who loses at trial may:

• File a notice of appeal within 10 days of judgment (USPR Rule 12);
• Pay an appeal bond equal to use-and-occupancy through the appeal date — bond is WAIVABLE FOR INDIGENT TENANTS (M.G.L. c. 261, § 27A; Adjartey v. Central Div. of the Hous. Court Dep't, 481 Mass. 830 (2019));
• Request a stay of execution pending appeal.

11.7. CORI / Housing Court Records

Housing court eviction filings appear on free public-records databases used by landlords as tenant screening. A no-fault dismissal or "agreement for judgment dismissed upon compliance" is dramatically better for future rental prospects than a default judgment for the landlord. Negotiate dismissal language in any settlement.

12. SOURCES AND REFERENCES

12.1. Massachusetts General Laws

• M.G.L. c. 239, §§ 1, 2, 3, 8A, 9, 13 — Summary Process
• M.G.L. c. 185C, § 20 — Transfer to Housing Court
• M.G.L. c. 186, §§ 11, 11A, 12, 13, 14, 15B, 18 — Tenancy and landlord obligations
• M.G.L. c. 93A, §§ 2, 9 — Consumer Protection Act
• M.G.L. c. 151B, § 4 — Anti-discrimination (incl. source of income)
• M.G.L. c. 111, § 199A — Lead paint
• M.G.L. c. 261, § 27A — Indigency / appeal bond waiver
• M.G.L. c. 239, § 2A — Domestic violence eviction protections

12.2. Federal Law

• Fair Housing Act, 42 U.S.C. §§ 3601-3619
• Violence Against Women Act (VAWA), 34 U.S.C. § 12491
• 24 C.F.R. Part 5 — VAWA implementing regs
• 42 U.S.C. § 1437f — Section 8

12.3. Trial Court Rules / Regulations

• Mass. Uniform Summary Process Rules, Rules 1-13
• 105 C.M.R. 410.000 — State Sanitary Code, Chapter II
• 460 C.M.R. 6.00 — Lead law regulations
• 940 C.M.R. 3.17 — Landlord 93A regulations
• 760 C.M.R. 6.00 — State public housing regs
• 760 C.M.R. 49.00 — MRVP regs

12.4. Trial Court Forms

• Residential Summary Process (Eviction) Answer (TC-090A) — mass.gov
• Discovery Forms (interrogatories, document requests) — Mass Legal Help "Booklet 4"
• Mass Legal Help Answer Booklet (#3) — masslegalservices.org

12.5. Key Cases

• Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973) — implied warranty of habitability
• Berman & Sons, Inc. v. Jefferson, 379 Mass. 196 (1979) — measure of habitability damages
• Scofield v. Berman & Sons, Inc., 393 Mass. 95 (1984) — § 18 retaliation
• Cruz Mgmt. Co. v. Wideman, 417 Mass. 771 (1994) — c. 93A and L-T
• Morse v. Ortiz-Vazquez, 99 Mass. App. Ct. 474 (2021) — preservation of defenses
• Adjartey v. Central Div. of the Hous. Court Dep't, 481 Mass. 830 (2019) — appeal bond waiver
• Bank of America, N.A. v. Rosa, 466 Mass. 613 (2013) — post-foreclosure SP

12.6. Practice Materials

• Mass.gov — Massachusetts Law About Eviction
• Mass Legal Help — Fighting an Eviction in Court (Booklets 1-9)
• MCLE — Residential Landlord-Tenant Law
• AG's Guide to Landlord and Tenant Rights
• Boston Bar Journal — Morse v. Ortiz-Vazquez analysis
• Massachusetts Continuing Legal Education — Tenant's Rights in Housing