Landlord and tenant – Fees – Setoff

Where (1) a Housing Court judge, finding that the defendant tenant owed rent to the plaintiff landlord, awarded the landlord damages and fees and (2) on the tenant’s counterclaims for breach of the implied warranty of habitability and unfair or deceptive business practices, the judge awarded the tenant damages and fees, the judgments impermissibly set off the parties’ fee awards against each other, so the judgments must be amended to include the full amount of fees awarded to each party.

“These are cross appeals from judgments of the Housing Court in consolidated summary process actions. After a bench trial, the judge found that the defendant … owed rent to the plaintiff, AvalonBay Communities, Inc. (landlord), and awarded damages to the landlord for rent and attorney’s fees. On the tenant’s counterclaims for breach of the implied warranty of habitability and unfair or deceptive business practices, G.L.c. 93A, the judge awarded damages to the tenant, as well as attorney’s fees. On appeal, the tenant argues that the judgments violated G.L.c. 235, §27, by setting off the amount of attorney’s fees she owes to the landlord against the amount of attorney’s fees the landlord owes to her, which is subject to her attorney’s lien. In its cross appeal, the landlord argues that the judgments violated Mass. R. Civ. P. 58(a), as amended, 371 Mass. 908 (1977) (rule 58[a]), because they were set forth in two separate documents; the judge erred in finding that the landlord’s billing practices violated G.L.c. 93A; and the award of attorney’s fees to the tenant was excessive. We conclude that the judgments impermissibly set off the parties’ attorney’s fees awards against each other and, therefore, the judgments must be amended to include the full amount of attorney’s fees awarded to each party. We otherwise affirm. …

“The tenant argues that the judge violated G.L.c. 235, §27, Fifth, by ordering that the judgments entered on February 28, 2024, set off against each other the parties’ attorney’s fees awards. …

“… We start with the language of G.L.c. 235, §27. … We read the phrase ‘the portion of either execution’ to mean that, if either execution includes a portion upon which an attorney has a lien, any competing attorney’s fees award cannot be set off against it.

“That reading is supported by cases construing the attorney’s lien statute, G.L.c. 221, §50. …

“The judgments dated February 28, 2024, shall be amended to reinstate the original attorney’s fees awards of $36,167.40 to the landlord and $49,128 to the tenant. As so amended, the judgments are affirmed.”

AvalonBay Communities, Inc. v. Vardenski (Lawyers Weekly No. 11-052-26) (15 pages) (Grant, J.) The case was heard by Fairlie A. Dalton, J., in Housing Court. Matthew W.H. Wessler for Kristen Vardenski; David Levinson for the plaintiff (Docket No. 24-P-1358) (July 20, 2026).

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