§ 8A

Citation: § 8A
Parent Document: Ferreira v. Charland (2023)
Jurisdiction: Massachusetts (state)
Effective Date: 2023-09-05
Original Source: https://www.courtlistener.com/opinion/9424522/ferreira-v-charland/ ↗

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par., in a no-fault eviction, that issue was not raised in the
Housing Court or briefed on appeal and is therefore not properly
before us. Justice Englander disagrees, invoking the principle
that we can affirm on any ground apparent in the record. But
that principle has limits, including that the ground apparent in
the record must "support[] the result reached in the lower
court." Gabbidon v. King, 414 Mass. 685, 686 (1993). The judge
did not resolve the tenant's § 8A defense "on the ground that it
was not proved at trial." Post at          (Englander, J.,
dissenting). The tenant did not have the opportunity to prove
her defense at trial because the judge concluded that the tender
precluded her from doing so. Assuming the counterclaim here was
"based on any allegation concerning the condition of the
premises or the services or equipment provided therein," G. L.
c. 239, § 8A, second par. -- rather than on unlawfully charging
the tenant for water when (permissibly and lawfully) no
conservation devices were installed, see G. L. c. 186, § 22 (c)
-- and further assuming the knowledge requirement applied, even
though the tenant here was never in arrears in her rent, based
on the way that the judge framed the issues at the hearing,
there was no opportunity for the tenant to demonstrate the
landlord's knowledge. We are unaware of any authority that
would allow us to take a claim that was disposed of by a judge
on procedural grounds (here, mootness) and resolve it on the
merits on appeal, without an appropriate evidentiary record that
the premises lacked the required conservation devices. It is
particularly unwise to do so here, where the issue was not
briefed on appeal and involves a novel question of statutory
interpretation.
     MEADE, J. (dissenting, with whom Neyman, Ditkoff, Singh,

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