Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973); G.L. c. 239, § 8A; G.L. c. 111, § 127L; 105 CMR 410.000
The warranty of habitability in Massachusetts — bad conditions, and what a tenant can do
A claim in Massachusetts trial courts · Last verified August 26, 2026
Until 1973 a Massachusetts tenant owed rent whatever the condition of the apartment. The lease was treated as a conveyance of land, the tenant took it as it was, and the duty to pay was independent of anything the landlord did.
Boston Housing Authority v. Hemingway, 363 Mass. 184 (1973), ended that. Every residential tenancy now carries an implied warranty of habitability, the landlord's duty and the tenant's duty to pay are dependent, and a breach reduces the rent owed.
What the claim is
Your home has serious defects — no heat, no hot water, leaks, pests, bad wiring — the landlord knew and did not fix them, and you want the rent reduced or the conditions repaired.
Where the right comes from
The common-law warranty from Hemingway, measured against the State Sanitary Code, 105 CMR 410.000, and enforced through G.L. c. 239, § 8A and G.L. c. 111, § 127L.
What a tenant has to prove
- A residential tenancy;
- Conditions that violate the Sanitary or Building Code, or otherwise render the premises uninhabitable — the § 8A standard is conditions that "may endanger or materially impair the health, safety or well-being" of an occupant;
- The landlord had notice of the conditions before the rent fell behind — a Board of Health notice creates a presumption of knowledge;
- The tenant did not cause the conditions; and
- Damages, measured as below.
The warranty cannot be waived. A lease clause purporting to give it up is void.
The measure of damages
The rent is reduced to the difference between the rent agreed and the fair rental value of the premises in their defective condition, for the period the conditions existed.
That is a percentage judgment, and courts make it on the severity and duration of the defects. A missing refrigerator for a week is not a winter with no heat.
Amounts the tenant spent on repairs the landlord should have made are recoverable as well.
Rent withholding — how § 8A works
This is the most misunderstood part of Massachusetts tenancy law, and getting it wrong loses homes.
Section 8A lets a tenant in a non-payment or no-fault summary process case raise by defence or counterclaim any claim for breach of the warranty of habitability, for breach of a material lease provision, or for violation of any other law. It converts bad conditions from a separate lawsuit nobody files into a defence inside the eviction.
It is not permission to stop paying and keep the money. The withheld rent stays owed until a court decides what the apartment was worth. If the tenant's abatement exceeds the rent withheld, the tenant wins the difference and keeps possession. If it does not, the tenant owes the balance — and under § 8A, a tenant who pays that balance into court within the period the statute allows keeps possession even after losing on the merits.
The court may order rent escrowed while the case runs. Davis v. Comerford, 483 Mass. 164 (2019), sets out the framework for interim use-and-occupancy orders and the factors a judge weighs.
Notice before the arrears is the condition. A tenant who stops paying and then complains has a much weaker case than one who reported the conditions and then withheld.
Repair and deduct — the § 127L route
G.L. c. 111, § 127L lets a tenant make repairs and deduct the cost from rent, and its conditions are strict.
The tenant must give the landlord written notice of the violation, or a public agency must have certified it. The landlord then has five days to begin repairs and 14 days to substantially complete them. If the landlord does not, the tenant may make the repairs and deduct the cost — up to four months' rent in any 12-month period.
The tenant must not have caused the condition, and must not be in arrears at the time notice is given. Miss a step and the deduction becomes non-payment of rent.
How long you have to file
Three years as an affirmative claim, under G.L. c. 260, § 2A.
No limitations period as a defence in a summary process case. Section 8A is available whenever the landlord sues for possession, and conditions during the current tenancy are in issue whether or not a separate claim would be timely.
What has to happen before you file
Notice to the landlord, and it should be in writing and dated. A Board of Health inspection, which creates a presumption of knowledge and produces an official record of the conditions — this is the single most useful thing a tenant with bad conditions can do.
What the claim pays
Rent abatement, the difference between the agreed rent and fair value.
Repair costs the tenant paid.
Consequential damages — property damaged by a leak, medical costs from a hazard.
Chapter 93A relief, where the conduct was unfair or deceptive. A knowing failure to repair serious code violations is regularly treated that way, and 93A brings double or treble damages and mandatory attorney's fees.
Section 14 damages, where the failure involved heat, hot water or another listed utility — the greater of actual damages or three months' rent, with mandatory fees.
Twelve percent interest.
No fee award on the bare warranty claim. The fees come from the 93A or § 14 overlay, which is why those counts are pleaded alongside it.
Which court
Housing Court, uncapped. District Court or the Boston Municipal Court within the $50,000 threshold. Superior Court above it. Most often, as a defence and counterclaim inside summary process.
Common defenses
- The tenant caused the condition.
- No notice before the rent fell behind.
- The conditions are not material — cosmetic complaints do not breach the warranty.
- Access was refused, so the landlord could not repair.
- The repairs were made within a reasonable time.
- The tenant was already in arrears when notice was given, which defeats repair-and-deduct.
What people get wrong
Withholding rent is not living rent-free. It is a defence with escrow risk, and a tenant who misjudges the abatement owes the balance.
Report it first, in writing. Notice before the arrears is what makes the defence work, and a Board of Health inspection is worth more than any letter.
Repair and deduct has hard steps. Written notice, five days to begin, 14 to complete, and a cap of four months' rent a year.
The warranty cannot be waived, whatever the lease says.
Cosmetic problems are not code violations. The standard is conditions that may endanger or materially impair health, safety or well-being.
Where it came from
Hemingway imported into landlord-tenant law a principle the rest of contract law had held for centuries: where one party's obligation is the consideration for the other's, a failure of one excuses the other. Leases had been exempt from that because they descended from conveyancing, where the tenant bought an interest in land and the condition of any structure on it was their own affair.
That made sense for agricultural tenancies and none at all for apartments, where the thing being bought is the dwelling and the tenant has no ability to maintain the building's systems. The SJC said so and the Legislature built the machinery around it — § 8A to make conditions available inside the eviction, § 127L to let a tenant fix things without waiting for a lawsuit, and the Sanitary Code to supply an objective standard so the question is not what a jury thinks is habitable but whether the apartment meets the code.
The remaining gap is the one the Trial Court's own data shows: these defences are raised in a small fraction of the cases where they exist, because most tenants never file an answer.
Common questions
Can I stop paying rent because of bad conditions?
You can raise the conditions as a defence and counterclaim under § 8A, but the rent stays owed until a court decides what the apartment was worth, and the court may order it escrowed.
How much of a rent reduction do I get?
The difference between the rent you agreed to pay and the fair rental value of the apartment in its defective condition, for the period the conditions existed.
Do I have to tell the landlord first?
Yes, and before you fall behind on rent. A Board of Health inspection creates a presumption that the landlord knew.
Can I fix it myself and deduct the cost?
Yes, under G.L. c. 111 § 127L — written notice, five days for the landlord to begin and 14 to complete, and a cap of four months' rent in any 12-month period.
Can I be evicted for withholding rent?
You can be sued. Whether you keep possession depends on the abatement the court finds and on your paying any balance the statute allows you to pay to stay.
Can I recover attorney's fees?
Not on the warranty claim alone. A chapter 93A or c. 186 § 14 count on the same facts carries mandatory fees.