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Looming SJC Decision Could Significantly Impact Landlord-tenant Law

BOSTON — Should a landlord’s mistake handling a security deposit give a tenant a defense against eviction? That is the question the Supreme Judicial Court (SJC) will decide after hearing oral arguments on Thursday, Nov. 5, a decision that could have major ramifications for landlord-tenant law and rents in Massachusetts. On Tuesday, the court received an amicus brief from Amherst attorney Peter Vickery on behalf of the statewide group MassLandlords.net.

“The short answer is no,” says Vickery. “A security-deposit mistake does not give a tenant a defense against a landlord’s claim for possession.”

The question came up in the case of Meikle v. Nurse, where the landlord had not followed all the rules regarding security deposits. The judge allowed the tenant’s security-deposit counterclaim, but — because the dollar value of the counterclaim was outweighed by the rent the tenant owed — the judge granted the landlord possession. The tenant, represented by the Harvard Legal Aid Bureau, appealed, and the SJC opted to take it up from the Appeals Court’s docket.

“It’s about the distinction between a counterclaim and a defense,” said Vickery, whose practice focuses on civil litigation, particularly in the areas of landlord-tenant and employment law. “Nobody disputes that, if a landlord who is suing for rent and possession has violated the security-deposit laws, then the tenant can raise that as a counterclaim. The statute makes that clear. The statute also says that some claims and counterclaims can also serve as defenses. There’s a list of them in Chapter 239, Section 2A. Security-deposit violations are not on that list.”

According to the brief filed by the Harvard Legal Aid Bureau, the counterclaim is also a defense because another part of Chapter 239 (Section 8A) says that a tenant may raise any claim “by defense or counterclaim.” But, Vickery argues, the word ‘or’ really matters.

“The word ‘or’ is disjunctive,” he noted. “Colloquially we use it to mean ‘and/or,’ but in statutes and other legal documents, it means ‘one but not both.’ If the Legislature had intended to abolish the distinction between counterclaims and defenses, it would have done so. But instead it used the word ‘or.’ And it could have included security-deposit violations in the list of defenses in section 2A, but it chose not to.”

Security deposits are supposed to help a landlord guard against the risk of property damage. But many landlords are already reluctant to take security deposits because the rules about them are complicated and it is easy to make a mistake.

“We routinely receive requests for help where either the landlord or in some cases the bank has messed up compliance with the complicated security-deposit law,” said Doug Quattrochi, executive director of MassLandlords.net. “It’s not surprising Harvard Legal Aid is confused.”

Even a simple mistake can lead to the landlord paying the tenant treble damages (three months’ rent) plus legal fees. This encourages landlords to refuse security deposits and lower risk through higher rents. If the SJC decides that security-deposit violations do give rise to a defense against possession, even fewer landlords will ask for security deposits, and rents will rise accordingly.

MassLandlords.net was launched in February 2014 as the first professionally staffed trade association for landlords in Massachusetts. Vickery is a a graduate of Boston University School of Law and a former member of the Governor’s Council.

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