Tenants challenge smoking restriction at senior housing; In settlement, couple agrees to smoke outside or move out.

Author:Spencer, Susan

Byline: Susan Spencer

NORTHBRIDGE -- A Whitinsville couple appeared in Worcester Housing Court Thursday to fight an eviction from the Linwood Mill senior affordable housing complex, claiming the property managers changed the rules to prohibit smoking after the longtime smokers moved in more than a year ago.

Their lawyer also claimed that the couple had not been properly served their eviction summons, noting that the date, time and place of the housing court hearing were incorrect; and when he learned of the errors, the mistake was not appropriately remedied.

Before the case was heard by the judge Thursday, however, the couple and the property manager agreed in mediation that the tenants could smoke inside their unit until Nov. 1. After that, they would have to agree only to smoke outside the building or move out.

Elizabeth G. McCaffrey, 81, and her husband, Richard J. McCaffrey, 78, stated in their affidavits that they sold their home in Warwick, Rhode Island, to move into Linwood Mill in December 2012. They relied on an advertisement that said smokers were welcome as part of their decision to move there.

Linwood Mill is owned by Linwood Mill, LLC, whose resident agent and manager is William E. Giannopoulos, a Whitinsville businessman. The property was developed by EA Fish Development, which in February 2011 received $60,100 in federal low-income tax credits for redevelopment of the historic textile mill to create 75 units of affordable elderly rental housing. It is managed by Peabody Properties Inc. of Braintree.

The couple said they signed a one-year lease with the landlord but were never provided with an original copy of the lease. They were later asked to sign an addendum, after their lease expired, which outlawed smoking.

The couple refused to sign the addendum and were served an eviction summons and complaint on Aug. 11, according to documents provided by their lawyer, Stephen F. Gaudet of Douglas.

Mr. Gaudet had asked in a counterclaim for $40,000 in damages for breach of landlord's covenant of quiet enjoyment, unjust enrichment of the landlord and detrimental balance resulting from the McCaffreys suffering financial, physical and emotional harm and violation of consumer protection laws.

"The favorite red-headed stepchild of the world is smoking,'' Mr. Gaudet said in an interview. "So far, Massachusetts hasn't outlawed smoking in your own home.''

He acknowledged that landlords have the right to do with their property as they see fit...

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