NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-151

KATRINA PIMENTAL & another1

vs.

CHRISTINA GALARZA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from a judgment of the Housing Court

that awarded the plaintiffs possession of their rental unit, as 

well as damages due to the defendant's failure to pay rent. The 

defendant primarily contends that the judge erred in ruling 

against her defense under G. L. c. 239, § 8A, and in concluding 

that the plaintiffs had not breached the warranty of 

habitability or covenant of quiet enjoyment. The defendant also 

claims that the plaintiffs engaged in a retaliatory eviction.

We affirm.

Background.2 Beginning in January of 2019, the defendant 

rented a first-floor apartment in the plaintiffs' Fall River 

1 Christopher Barroso.

2 We summarize the facts found by the judge, supplemented as 

needed by the trial evidence, reserving some details for later 

discussion. 
2

home.3 The plaintiffs reside on the second floor of the home and 

have since approximately 2015. The terms of the defendant's 

tenancy required her to pay $960 in rent on the first day of 

each month. 

The defendant failed to pay rent for December of 2019 and 

January of 2020. Throughout January and into early February of 

2020, the plaintiffs inquired frequently, by text message, as to 

when they could expect payment. During that time, the defendant 

invariably responded that payment would be forthcoming, and she 

raised no concerns about the condition of the apartment. 

The situation came to a head in February. On February 5,

2020, the defendant first expressed concerns about high 

electricity bills, attributing the cost to the use of electric 

heaters when her heat was being converted from oil to gas in 

December of 2019. That same day, the plaintiffs told the 

defendant that she would have to leave the apartment if her 

arrears continued. On February 13, 2020, after continued 

conversations about the defendant's nonpayment, the plaintiffs 

told the defendant that she would need to move out. At that 

point, the defendant was three months in arrears. In a response

that same day, the defendant raised new concerns about rodents 

3 The defendant had rented the apartment for some time prior, but 

the plaintiffs did not purchase the property until January of 

2019. 
3

and defective electrical outlets and indicated, for the first 

time, that she had been withholding her rent due to the 

conditions of the apartment.4 The plaintiffs reiterated their 

request that the defendant vacate the apartment. 

The defendant did not leave, prompting the plaintiffs to 

serve the defendant with a fourteen-day notice to quit on March 

3, 2020, due to her continued arrears. The plaintiffs then 

initiated this summary process action on March 20, 2020. The 

defendant answered, asserting, as relevant here, a defense that 

she properly withheld rent as contemplated by G. L. c. 239, 

§ 8A, and counterclaims for (1) breach of the warranty of 

habitability, (2) breach of quiet enjoyment, and (3) retaliatory 

eviction. Trial was held on December 22, 2020, at which the 

defendant represented herself. 

The trial judge issued his findings, ruling, and order for 

entry of judgment on January 7, 2021, awarding the plaintiffs 

possession of the apartment and damages. He also entered 

judgment in favor of the plaintiffs on the defendant's 

counterclaims. The defendant timely appealed. 

4 Also on February 13, the defendant indicated for the first time 

that she had requested that the city of Fall River inspect her 

unit. The inspection took place on February 25, 2020, and

revealed minor issues with electrical outlets and a cracked 

bathtub that needed to be remedied for the apartment to comply 

with the State Sanitary Code. The plaintiffs promptly addressed 

those issues. 
4

Discussion. The defendant argues that the judge erred in 

rejecting her G. L. c. 239, § 8A defense, and in ruling against 

her on her counterclaims, primarily contending that the judge's 

conclusions were not supported by the evidence. In reviewing 

the trial judge's decision, "'we accept [the judge's] findings 

of fact as true unless they are clearly erroneous,' but 'we 

scrutinize without deference the legal standard which the judge 

applied to the facts.'" Cambridge St. Realty, LLC v. Stewart, 

481 Mass. 121, 123 (2018), quoting Andover Hous. Auth. v. 

Shkolnik, 443 Mass. 300, 306 (2005). 

The defendant first argues that the judge was wrong to 

reject her G. L. c. 239, § 8A defense. In particular, the 

defendant challenges the judge's finding that she did not 

provide sufficient notice to the plaintiffs that she was 

withholding rent due to the condition of her apartment. We

perceive no error. Although § 8A provides tenants with a 

defense in summary process actions where they have withheld rent 

because of "the condition of the premises," see G. L. c. 239, 

§ 8A, that defense is available only if the tenant "compl[ies]

with [the statute's] procedural requirements." See Jablonski v. 

Casey, 64 Mass. App. Ct. 744, 749-750 (2005). One such 

requirement is that the landlord "knew of [the poor] conditions

before the tenant . . . was in arrears in h[er] rent." See 

G. L. c. 239, § 8A. In other words, "[t]he landlord . . . must 
5

be notified of any such condition before the tenant is allowed 

to withhold." Jablonski, supra at 749. 

Here, the judge found that the defendant did not notify the 

plaintiffs of the alleged poor conditions prior to missing her 

rental payments. That finding was not clearly erroneous; 

indeed, it is amply supported by the evidence. See Jablonski, 

64 Mass. App. Ct. at 749. The primary condition that the 

defendant argues justified her nonpayment was a purported issue 

with her heat that arose in December of 2019, when the heat in 

the defendant's unit was being converted from oil to gas. 

Notably, it is undisputed that this condition did not arise 

until December 13, 2019 -- after the defendant should have paid 

December's rent.5 More importantly, however, there was no 

evidence that the defendant informed the plaintiffs that she was 

withholding rent due to any condition, heat related or 

otherwise, prior to missing her December and January rent 

payments.6 To the contrary, the defendant repeatedly represented 

5 The issue was first identified when the defendant was refused a 

heating oil delivery due to the state of her oil tank. The 

plaintiffs promptly addressed the issue, completing the 

conversion on December 28, 2019. That condition thus no longer 

existed as of the date January's rent was due. 

6 The defendant argues that "she verbally notified the plaintiffs 

of her intent to withhold in order to obtain assistance with her

electric bill" -- which she claims was excessive due to the use 

of portable heaters during the heat conversion -- "and minor

repairs associated" with violations of the State Sanitary Code. 

The defendant made similar statements during her crossexamination of the testifying plaintiff and in her closing 
6

in text messages throughout January and into February of 2020 

that payment would be forthcoming, once she received monies that 

she was owed from others. See Jablonski, supra at 749. 

The defendant next argues that the judge's ruling

dismissing her warranty of habitability and quiet enjoyment

counterclaims was contrary to the evidence. The warranty of

habitability requires "that at the inception of the rental there 

are no latent (or patent) defects in facilities vital to the use 

of the premises for residential purposes and that these 

essential facilities will remain during the entire term in a 

condition which makes the property livable" (citation and 

quotation omitted). Boston Hous. Auth. v. Hemingway, 363 Mass.

184, 199 (1973) (Hemingway). It "applies only to 'substantial'

violations or 'significant defects'" (citation omitted). 

Goreham v. Martins, 485 Mass. 54, 65 (2020). Similar to the 

warranty of habitability, "[t]he covenant of quiet enjoyment 

protects a tenant's right to freedom from serious interference 

with h[er] tenancy -- acts or omissions that impair the 

character and value of the leased premises." Doe v. New Bedford

remarks (which the judge appeared to treat as testimony). 

However, the judge "did not find the testimony . . . to be 

credible." Of course, "the credibility of the witnesses rests 

within the purview of the trial judge." Weiler v. 

PortfolioScope, Inc., 469 Mass. 75, 81 (2014). 
7

Hous. Auth., 417 Mass. 273, 285 (1994). See G. L. c. 186,

§ 14. 

The defendant primarily argues that, because of the 

December 2019 heating conversion, her apartment was so 

inadequately heated as to constitute a violation of the warranty 

of habitability and the covenant of quiet enjoyment. The judge 

found, however, that the plaintiffs provided the defendant with 

temporary heating units during the conversion that "adequately 

addressed any temporary heating deficiency" such that "there was 

no material impact on the habitability of the premises." That 

finding was not clearly erroneous. See Jablonski, 64 Mass. App. 

Ct. at 747. Although the defendant testified below (and argues 

here) that the heating units the plaintiffs provided were 

insufficient, the judge was not required to accept that 

testimony.7 See Weiler v. PortfolioScope, Inc., 469 Mass. 75, 81 

(2014). And his conclusion to the contrary is well supported,

not only by the plaintiffs' testimony but also by the evidence

that the defendant did not contemporaneously complain to the 

plaintiffs that the units were ineffective. See Hemingway, 363 

7 The defendant has moved to expand the record to submit 

additional evidence on this and other issues. Because our 

review is limited to the record before the trial judge, that 

motion is denied. See Commonwealth v. Abdul-Alim, 91 Mass. App. 

Ct. 165, 171 n.6 (2017). 
8

Mass. at 200-201 (whether landlord received notice is a relevant 

factor).8 

Finally, we see no error in the entry of judgment for the 

plaintiffs on the defendant's retaliatory eviction claim under 

G. L. c. 239, § 2A. That statute creates a presumption of

retaliation where a summary process action is initiated within 

six months of the tenant seeking to enforce governmentally 

prescribed housing standards. G. L. c. 239, § 2A. This

presumption, however, is rebuttable

"by clear and convincing evidence . . . that the plaintiff 

had sufficient independent justification for taking such 

action, and would have in fact taken such action, in the 

same manner and at the same time the action was taken, even 

if the tenant had not . . . made such report . . . ."

Id. Accordingly, to rebut the presumption landlords must show

that they (1) had an independent justification to initiate 

summary process proceedings and (2) would have done so "in the 

same manner and at the same time" even if the tenant had not 

8 The same holds true of the other alleged defects and conditions

that the defendant contends required a ruling in her favor. 

Those include a series of purported defects that allegedly 

existed at various times in 2019 and 2020 -- concerning rodents, 

electrical outlets, a door, radiators, bathroom flooding, and 

problems with hot water. Upon review of the record before us, 

there is no indication that the alleged defects were so 

substantial as to affect the apartment's livability or that they 

seriously interfered with the defendant's tenancy. Tellingly, 

none of the defects were referenced in the text message 

exchanges about the rent in December and January. Moreover, it 

appears that each alleged defect was promptly remedied, as the 

trial judge found. 
9

reported the noncompliant conditions. See South Boston Elderly 

Residences, Inc. v. Moynahan, 91 Mass. App. Ct. 455, 468-469 

(2017) (addressing identical language in G. L. c. 186, § 18).

Here, the presumption applies because the plaintiffs 

initiated this action within one month of the defendant's 

complaint to the city of Fall River. Although the judge made no

explicit findings about whether the plaintiffs rebutted that

presumption, the plaintiffs argued before him that they had, 

citing the evidence of nonpayment of rent, and their repeated 

requests for payment and then, for the defendant to vacate. In 

entering judgment for the plaintiffs, the judge implicitly found 

that they had rebutted the presumption. See Commonwealth v. 

Holmes, 46 Mass. App. Ct. 550, 559 (1999) ("unnecessary to 

remand for an explicit ruling for what was undoubtedly 

implicit"). And this implicit finding was supported by the 

evidence. See Biliouris v. Biliouris, 67 Mass. App. Ct. 149,

164 (2006) ("implicit finding" not "clearly erroneous"). There 

was testimony that the plaintiffs initiated this action solely 

because of the defendant's nonpayment, a sufficient independent 

justification. See Youghal, LLC v. Entwistle, 484 Mass. 1019, 

1024 (2020). There was also testimony and text messages

indicating that the plaintiffs asked the defendant to vacate

before the defendant's inspection request, supporting that the 

plaintiffs would have initiated this action when they did even
10

in its absence. We accordingly see no clear error in the 

judge's ruling.9

Judgment affirmed.

By the Court (Wolohojian, 

Englander & 

D'Angelo, JJ.10),

Clerk

Entered: February 28, 2023.

9 Because the defendant did not prevail on appeal, we deny her 

request for attorney's fees and costs. The defendant has also 

filed a document titled "appellant's request for criminal 

charges of perjury," asking that we "find the [plaintiffs] 

guilty of perjury." Treating the request as a motion to this 

court (and without meaning to suggest that such a request is 

within our purview), the motion is denied. 

10 The panelists are listed in order of seniority.