SECTION 1. Section 8A of Chapter 239 of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by striking out the second paragraph and inserting in place thereof the following paragraph:-
“Whenever any counterclaim or claim of defense under this section is based on any allegation concerning the condition of the premises or the services or equipment provided therein, the tenant or occupant shall not be entitled to relief under this section unless: (1) the tenant or occupant deposits with the clerk all rent due prior to final disposition of the plaintiff’s action; (2) the owner or his agents, servants, or employees, or the person to whom the tenant or occupant customarily paid his rent was given written notice of such conditions before the tenant or occupant was in arrears in his rent; (3) the plaintiff does not show that such conditions were caused by the tenant or occupant or any other person acting under his control; except that the defendant shall have the burden of proving that any violation appearing solely within that portion of the premises under his control and not by its nature reasonably attributable to any action or failure to act of the plaintiff was not so caused; (4) the premises are not situated in a hotel or motel, nor in a lodging house or rooming house wherein the occupant has maintained such occupancy for less than three consecutive months; and (5) the plaintiff does not show that the conditions complained of cannot be remedied without the premises being vacated; provided, however, that nothing in this clause shall be construed to deprive the tenant or occupant of relief under this section when the tenant otherwise applies rent pursuant to section one hundred twenty-seven of chapter one hundred eleven (L) or when the premises are temporarily vacated for purposes of removal or covering of paint, plaster, soil or other accessible materials containing dangerous levels of lead pursuant to section one hundred and ninety-seven of chapter one hundred and eleven.”
SECTION 2. Section 8A of Chapter 239 of the General Laws, is hereby amended by striking out the fourth paragraph and inserting in place thereof the following paragraph:-
There shall be no recovery of possession pursuant to this chapter pending final disposition of the plaintiff’s action if the court finds that the requirements of the second paragraph have been met. The court after hearing the case shall require the clerk of the court to pay to the landlord, from the deposit required by the second paragraph, the fair value of the use and occupation of the premises less the amount awarded the tenant or occupant for any claim under this section. In determining said fair value, the court shall consider any evidence relative to the effect of any conditions claimed upon the use and occupation of residential premises. Such funds may be expended for the repair of the premises by such persons as the court after a hearing may direct, including if appropriate a receiver appointed as provided in section one hundred and twenty-seven H of chapter one hundred and eleven. When all of the conditions found by the court have been corrected, the court shall direct that the balance of funds, if any, remaining with the clerk be paid to the landlord. Any tenant or occupant intending to invoke the provisions of this section shall, after commencement of an action under this chapter by the landlord, deposit with the clerk any amount for rent which may be in dispute, and such payments shall be held by the clerk subject to the provisions of this paragraph.
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