Massachusetts rent withholding: a counterclaim in court, plus a capped repair deduction after a 14-day clock
Massachusetts tenants raise bad conditions as a defense or counterclaim when sued for rent, and the court can require them to pay the fair value of the unit into the clerk's hands. A separate rule lets a tenant repair and deduct up to four months' rent in 12 months, but only after the board of health or a court certifies the violation and you fail to start repairs in 5 days and finish in 14.
What can a tenant claim under chapter 239, section 8A?
In an eviction for nonpayment, or where the tenancy ended without the tenant's fault, the tenant may raise by defense or counterclaim any claim related to the property for breach of warranty, breach of a material lease provision or violation of any law. The amounts include the difference between the agreed rent and the fair value of the use and occupation, plus money reasonably spent under chapter 111, section 127L.
What must the tenant show about the conditions?
For claims based on the condition of the unit, section 8A sets four hurdles. Missing any one defeats the claim.
- You or your agents, or the person who collects the rent, knew of the conditions before the tenant fell behind on rent.
- You do not show that the tenant or someone under the tenant's control caused the conditions. For problems entirely inside the tenant's part of the unit, the tenant carries the burden of proving the tenant did not cause them.
- The unit is not in a hotel or motel, or a rooming house where the tenant has stayed under three months.
- You do not show that the conditions cannot be fixed without the unit being vacated.
Proof that the unit violates the state sanitary code or building code in a way that may endanger health or safety creates a presumption that the tenant has a defense. A copy of an inspection report certified by the inspector is admissible and prima facie evidence.
Does the tenant have to pay anything while the case is pending?
The court may require the tenant to pay the clerk the fair value of the use and occupation less the amount awarded on the counterclaim, or to make deposits in installments. Those funds can be spent on repairs, including through a receiver, and the clerk pays any remaining balance to you when all conditions the court found are corrected. A tenant who plans to rely on section 8A may voluntarily deposit disputed rent with the clerk after you start the case.
Example a made-up Worcester landlord sues for $3,000 of back rent. The court finds the tenant's counterclaim for a failed heating system is worth $3,400. Because the amount due the landlord is less than the amount due the tenant, there is no recovery of possession.
How does the repair-and-deduct rule work?
Under chapter 111, section 127L, the violation must be certified by the board of health, local code enforcement, the housing inspection commissioner in Boston, Worcester or Cambridge, or a court. You must be notified in writing. If you fail to begin repairs or contract in writing with a third party within 5 days, or to substantially complete repairs within 14 days, the tenant may fix the defects and deduct the cost from later rent, unless the agency or court set a shorter deadline.
- The deduction is capped at four months' rent in any 12-month period or period of occupancy, whichever is shorter.
- The cap uses the highest monthly rent in that period.
- You may recover any excess, or any amount unreasonable under the circumstances.
- The tenant may instead treat the lease as abrogated, pay only fair value for use and occupation, and leave within a reasonable time.
Can a lease take these rights away?
No. Section 8A says a lease provision purporting to waive it is against public policy and void, and a tenant who invokes the section also gets the protections of chapter 186, sections 14 and 18 on retaliation.
How DoorKeeping fits in Massachusetts
The five and fourteen day periods only help you if you can show when you were notified and when work started. DoorKeeping saves the tenant's message and the inspector's letter in the unit thread with their dates and tracks the vendor's job from a work order. Rent and payments stay in your own bank accounts. This is general information, not legal advice; confirm the current statutes and your lease.
Sources
Questions
- How much can a Massachusetts tenant deduct for repairs?
- Up to four months' rent in any 12-month period or period of occupancy, whichever is shorter, after certification of the violation and your failure to act within 5 and 14 days.
- Must the landlord know about the problem before the tenant falls behind?
- Yes, for a section 8A claim about conditions, the owner, agents or rent collector must have known before the tenant was in arrears.
- Can a Massachusetts lease waive these tenant rights?
- No. A provision purporting to waive section 8A is void as against public policy.