By the Court (Katzmann, Milkey & Agnes, JJ.), Clerk

NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff landlord, Xiaobing Xin, appeals from a judgment of the Boston Housing Court in favor of the defendant tenant, Delores King. The landlord asserts that the Housing Court judge erred in ruling that the tenant was entitled to a presumption of retaliation in a summary process action initiated by the landlord for nonpayment of rent. We agree that this ruling was contrary to the terms of G. L. 186, § 18. Accordingly, we vacate the judgment on the retaliation counter-claim and remand for retrial on that claim.

Background. 1. Facts. We summarize the judge's findings of fact, which are not in dispute, and additional facts included in documents in the record. In April of 2012, King entered into a lease to rent 56 Goodale Road, unit #2, Mattapan. She did so under the Massachusetts Rental Voucher Program (MRVP), whereby rent was fixed at $1,664 per month, with King paying $528 and the Metropolitan Boston Housing Partnership, Inc. (MBHP), paying $1,136. Xin, became the owner of the premises in February, 2013. As of April 1, 2013, King's of the rent was $652.

In March, 2013, King failed to pay her full portion of the rent, paying only $264 to Xin. King did not pay rent for the months of April, May, June, July, or August, 2013, owing $3,260 in past due rent. Xin caused King to receive a notice to quit for nonpayment of rent dated July 3, 2013. King admits receipt.

Starting in February, 2013, King contacted Xin about problems with the apartment, informing her that the water heater broke and there was water leaking into the bathroom. The landlord sent a plumber, but King asserted that the problems were not resolved. There was no hot water in April and the ceiling collapsed as a result of a leak. King contacted Xin about the status of the apartment and received a letter dated April 25, 2013, stating that the tenant's obligation to pay rent had nothing to do with the conditions at the premises. The tenant then contacted the city of Boston inspectorial services department (ISD), which sent an inspector to conduct an inspection. ISD issued a notice of violations to the landlord and a criminal action was commenced against her. The Housing Court found that the conditions identified by ISD existed at the time King acquired the property and she knew or should have known of them. On July 23, 2013, Xin filed a summary process summons and complaint in the Boston Housing Court against King seeking a judgment for possession and outstanding rent. King filed an answer and counterclaims on August 2, 2013.

2. Rulings of law. After a jury-waived trial, the judge ruled that Xin had established a prima facie case to recover possession and damages for nonpayment of rent, subject to King's defenses and counterclaims. King's counterclaims included breach of warranty of habitability, violation of the statutory covenant of quiet enjoyment, and retaliation. The judge found in favor of the defendant on her three counterclaims, awarding her a net judgment of $5,060. Xin appeals from the judgment, limiting her argument to the ruling that the presumption of retaliation under G. L. c. 186, § 18, was applicable.

Discussion. We review to determine whether the judge's findings of fact were clearly erroneous and whether, as a matter of law, the tenant was entitled to judgment in her favor on her retaliation counterclaim. See Wesson v. Leone Enterprises, Inc., 437 Mass. 708, 712-715 (2002). The Housing Court judge found that, "[b]ecause the Plaintiff caused the Defendant to receive a notice to quit within six months of having received a notice of violation from ISD, the Defendant is entitled to a presumption of retaliation. The Plaintiff failed to rebut that presumption and the Defendant is entitled to a judgment on her counterclaim for retaliation in the amount of two months' rent . . . ." This ruling was erroneous because the statute provides that the presumption does not arise in cases such as this, in which the summary process action is initiated due to nonpayment of rent. See G. L. c. 186, § 18; Jablonski v. Casey, 64 Mass. App. Ct. 744, 747-748 (2005). Compare Jablonski v. Clemons, 60 Mass. App. Ct. 473, 476-477 (2004).

Under G. L. c. 186, § 18, a residential tenant may recover damages against a landlord who threatens to or takes reprisals against said tenant for engaging in certain legally protected activities such as enforcing any Federal, State or local law that has as its objective the regulation of residential premises. The plain language of the statute recognizes that the presumption of retaliation does not apply in cases such as this in which the summary process action is for nonpayment of rent.

In the absence of the statutory presumption, a landlord does not bear the burden of proving by clear and convincing evidence that the eviction was not retaliatory. The burden instead falls on King, the tenant, to prove by a preponderance of the credible evidence, that one of the landlord's principal motives for evicting her was her reporting of the numerous code violations on the premises to ISD.

Conclusion. The portion of the judgment awarding damages of $3,328 to King on the counterclaim for retaliation and the portion of the judgment awarding total damages and interest of $5,123.26 are vacated, and the counterclaim for retaliation is remanded to the Housing Court for retrial. The remaining portions of the judgment are affirmed. As a result, the tenant is entitled to recover damages in the net amount of $1,732 (see note 4, supra), subject to any additional damages in the event that she prevails on her counterclaim of retaliation.

So ordered.

By the Court (Katzmann, Milkey & Agnes, JJ.),

Clerk Entered: June 2, 2015.