Massachusetts tenants in eviction (“summary process”) cases have the option of suing the landlord who is trying to evict them, in an action known as a counterclaim. A counterclaim, simply put, is a lawsuit brought against the party who first filed the lawsuit. Counterclaims are permitted in eviction cases brought for a tenant’s failure to pay rent or a no-fault eviction. Counterclaims are not permitted for cause evictions (ex. violating the terms of a lease).
Counterclaims are allowed for “any claim against the plaintiff relating to or arising out of such property, rental, tenancy, or occupancy for breach of warranty, for a breach of any material provision of the rental agreement, or for a violation of any other law.” Examples of counterclaims by tenants include retaliation, violation of the Consumer Protection Law, and allegations that the rental property was not habitable.
An important thing about counterclaims in summary process is that they are not mandatory. A tenant can choose to file a counterclaim, but does not lose that claim if he or she does not file it. This is unlike most other civil cases, where the party can lose that claim if they do not raise it in a prior case.
Should you raise counterclaims in summary process? Counterclaims can sometimes be good leverage for a tenant trying to negotiate a settlement, and it can save time for the tenant by having these issues determined in one single lawsuit. On the other hand, eviction cases in Massachusetts move at a fast pace, with limited discovery (the ability to learn about the other’s side position through written questions and document requests). Some claims are too complex for summary process, and are better pursued in a separate court case (a personal injury claim, for example, is probably too complex for summary process).
Tenants should also bear in mind that if they do pursue a counterclaim and are unsuccessful, they may not get a chance to try the claim again.
Consult with an attorney if you find yourself in an eviction and need help in determining whether to raise counterclaims in your case.