## Facts

- Tenants William and Jill Hunter rented an apartment from landlord Stephen Wolfberg in Boston.
- Beginning in September 1978, the Hunters repeatedly complained of a serious rodent infestation and related unhealthy conditions.
- After the landlord failed to remedy the defects, the Hunters notified Wolfberg in November 1978 that they would withhold rent under G.L. c. 239, § 8A.
- The Hunters withheld rent for three months.
- Wolfberg filed a summary process action for nonpayment; the case was transferred to the Boston Housing Court.
- The tenants counterclaimed for retaliatory eviction (G.L. c. 186, § 18), breach of the warranty of habitability, interference with quiet enjoyment (G.L. c. 186, § 14), and unfair or deceptive acts under G.L. c. 93A based on the infestation, trash disposal, and retaliation.
- The Housing Court ruled for the tenants on the landlord’s possession claim and on the tenants’ habitability, quiet enjoyment, retaliation, and c. 93A counterclaims, but denied their tort claim for emotional distress.
- On post-trial motions, the Housing Court reduced c. 93A damages, reasoning that because rent was withheld for three months, tenants could not recover diminished-rental-value damages for those months beyond out-of-pocket expenses.
- Only the tenants’ appeal proceeded, challenging (1) denial of emotional distress damages, (2) the c. 93A damages calculation, and (3) the adequacy of appellate attorney’s fees.

## Issues

1. Whether the evidence required an award for intentional or reckless infliction of emotional distress.
2. Whether emotional distress damages were recoverable under G.L. c. 93A on these facts and under the statute as then written.
3. Whether tenants who withhold rent under G.L. c. 239, § 8A may recover c. 93A damages for defective conditions during the withholding period.
4. What measure of c. 93A damages applies when tenants have withheld rent.
5. Whether the appellate attorney’s fee award was reasonable under c. 93A’s fee-shifting requirements.

## Decision

- The Supreme Judicial Court affirmed denial of emotional distress damages for failure to prove conduct that was extreme and outrageous and intentional or reckless.
- The court held that emotional distress damages were not recoverable under G.L. c. 93A on these facts and under the statutory language then in effect.
- The court reversed the Housing Court’s limitation on c. 93A damages during the rent-withholding months and held that valid rent withholding does not eliminate c. 93A recovery for that period.
- The court required recalculation of c. 93A damages using a net measure that treats withheld rent as a credit rather than excluding months from the valuation analysis, and remanded for an amended judgment.
- The court directed further proceedings on attorney’s fees, concluding the appellate fee award required reconsideration consistent with c. 93A’s purposes and the tenants’ success.

## Legal Principles

- Tenants who properly withhold rent under G.L. c. 239, § 8A may still recover damages under G.L. c. 93A for defective housing conditions, including during the period of withholding.
- In calculating c. 93A damages for defective conditions where rent was withheld, the factfinder should: (1) compute the difference between the rental value as warranted (habitable) and as defective for the relevant period, (2) add reasonable out-of-pocket expenses caused by the defects, and (3) subtract the amount of rent actually withheld; the resulting amount may be subject to statutory multiplication for willful or knowing violations.
- A landlord’s failure to remedy serious defects supports habitability and consumer-protection liability, but does not establish intentional infliction of emotional distress absent proof of extreme and outrageous conduct and intent or recklessness.
- Under the statute as applied in this case, c. 93A did not authorize emotional distress damages in this landlord-tenant setting.
- Prevailing parties under c. 93A are entitled to reasonable attorney’s fees, including for appellate work, measured in light of the results obtained and the statute’s deterrent and remedial functions.

## Conclusion

The court upheld the denial of emotional distress recovery but required recalculation of c. 93A damages, holding that rent withholding under § 8A does not bar consumer-protection damages and must be treated as a credit in a net damages computation, and it remanded for reconsideration of appellate attorney’s fees.


Wolfberg v. Hunter, 432 N.E.2d 467 (Mass. 1982)