Landlord & Tenant

8/24/2011

Macguire v. Haddad

Action of summary process by Mary J. C. Maguire against Fred K. Haddad to recover possession of certain realty. The Superior Court for Suffolk County, J. V. Sullivan, J., denied defendant's requests for rulings, and defendant brought exceptions. The Supreme Judicial Court, Counihan, J., held that a notice delivered by plaintiff as landlord to defendant as tenant did not effect an increase in rent and did not terminate a tenancy at will.Exceptions sustained, and judgment for defendant.

Landlord and Tenant Creation of Tenancy at Will A new tenancy at will with terms different from those of a former tenancy cannot be created except with mutual consent of landlord and tenant.6 Cases that cite this headnote

3Landlord and Tenant Increase or Reduction of Amount Where landlord notified tenant at will to deliver up premises at end of term next beginning after receipt of notice unless willing to pay an increase of $25 in rent, but tenant continued to occupy premises and on first day of each month sent a check in advance for previous amount of rent, there was no assent on part of tenant by silence or acquiescence to an increased rental.1 Cases that cite this headnote

4Landlord and Tenant Creation of Tenancy at Will Landlord and Tenant Creation of Tenancy at Sufferance Where landlord gave tenant at will notice to quit unless tenant paid stipulated increase in rental, but tenant continued to pay former rent, and landlord delivered monthly receipts stating that a balance was due in the amount of the increase, and thereafter landlord began eviction proceedings for nonpayment of rent, landlord on failure of tenant to vacate did not treat tenant as a tenant at sufferance, and hence recognized him as a tenant at will. G.L.(Ter.Ed.) c. 186, § 12, as amended by St.1946, c. 202; c. 239, § 1, as amended.

5Landlord and Tenant Necessity and Sufficiency of Notice to Quit in General Notice by landlord to tenant at will to deliver up premises at end of term next beginning after receipt of notice unless willing after that date to pay a stated increase in rental was ineffective to terminate tenancy upon failure of tenant to pay the increased amount. G.L.(Ter.Ed.) c. 186, § 12, as amended by St.1946, c. 202; c. 239, § 1, as amended.

8/31/2011 Lease= fixed term tenancy, has a definite starting point and ending point in time. month-to-month= Periodic Tenancy, self re-newing(tenancy at will) Tenant at Will---> also considered a periodic tenancy.

Tenancy at sufferance---> no notice needed to evict Tenancy by regulation= (all have regulation placed on them by the government.) any subsidized

tenancy where there is a subsidy given to tenant and/or landlord. Ie: section 8 housing. Must look at the regulations and the type of government that created it.

If you are not a tenant you do not retain the same rights of a tenant, difference between a license and a tenancy is that the license does not allow for exclusive

possession. Also revocation of license is a power of a license. Therefore we must look at what is established when the question of if it is a tenancy is asked. If it is a tenancy, there is an agreement for exclusive possession express or implied and grants a

right of possession. to identify who is involved in the lease. To best describe the premises describe the amount of rent duration of the tenancy tenancy at will goes on until one of the parties involved ends it.

Profit right- is a limited duration type of license.

Hypo #1 relationship between J and GP could be argued either as co-tenants or a license Gp and M is deceased and recipient J and M the question of whether it was a license or a tenancy. J acted as the owner as in possession M may not have known J was living in the house. Create a license between J and M that would be revokable and that J would have so much

time to vacate and keep up the home while he stays there. Always put a license in writing. Otherwise it makes it hard to reverse.

the hypo was meant to decide how to fix the problem as seen by the judge. As to what the judge would determine whether he was a tenant or a licensee. Judge was leaning toward a license, but he was going to treat the relationships separately.

-rent to own, is considered a tenancy with option to buy

Hypo #2

Ed was agent of wife oral agreement payment of 1st and last month rent amounting to 1000$ Sue had a right to move in and move out. Or be refunded her rent payments, Sue gave notice 2 months in advance of her vacating the rental Ed is required to provide possession to Sue However Ed never handed over the Keys and told Sue she could not move in, and that she

would get her money back when he found a new tenant. Look at all facets of the parties and go for the deep pockets

9/7/2011 Hypo 3- February Tom and 3 kids move in.- oral agreement for month to month - for 800 in advance

in spring Ann moves in with Tom not taking action to ann not being there is an acquiesce that she lives there now n this case sam cannot do anything because the oral agreement did not preclude Ann moving in. unless the tenant allows the amount of people that exceeds the sanitary code of the state to

move in. Sam can serve them both

MGL sec 11: residence- have the right to cure it under a lease, before the answer day in court pay full amount of back rent with interest and costs of the suit. (non-payment of rent)MGL sec 11a: commercial- in a commercial tenancy you define the notice period in the lease itself. If it is not placed in the lease then it defaults to the provisions in the MGL. Which in this sec is 14 days.(non-payment of rent)

MGL sec 12: tenancy at will- with non-payment of rent, 14 days notice to quit, (ALL NOTICES TO DETERMINE A TENANCY MUST BE IN WRITING) MGL sec 13: MGL sec 19: voiding of lease of tenant using premises for common nuisance: here there is no notice needed the landlord can void the lease, if the tenant has done something illegal etc... and can prove it.

“repeated late-payment of rent is grounds for termination of the lease.”----> contractual solution to getting around the provisions in the MGL (can also be against other provisions in other states.)

the period in situations where eviction is necessary for reasons other than non-payment the lease determines the notice period. Can be up 7 days. This is for residencethere is no governing statute for commercial leases.

the notice must contain the violation, and the breach of the lease. The notice must contain facts

this is important make certain that any lease you draft has eviction clauses in them.

notice to terminate a tenancy at will needs notice time of 1 rental period and does not need a reason.

The tenancy can terminate also for example the termination notice must be sent on or before the start of the next rental period

giving them 1 whole rental period notice. This is so the termination is acceptable. Unless there is statute of protection called “good cause” in states that allow cause you must prove sufficient notice. Mass can provide that a tenant not at fault receiving a termination notice without cause can ask

for up to 6 months extension, if elderly, or disabled can request up to a year. If you do state a cause and you can prove it then, you send them the notice containing the cause

and they continue to be in violation cuts off the ability to request more time from the court. In order to effectuate a rent increase there must be a new agreement between the parties.

If the tenant pays it then you have acquiescence. If they do not agree or acquiesce then the rent increase is not effective.

In the Maguire case because they were not in non-payment the notice to vacate was invalid. A notice to vacate must be unequivocal. If you send a 14 day notice and a 30 day notice as a dual notice simultaneously. they are not

unequivocal then therefore they are both invalid. It is possible to send a 14 day notice then when they cure it before the month is up can send 30

day notice to the vacate.9/14/2011

Lindsey v. Normet1972Venue: SCOTUS

Facts:

OR statute requires a trial 6 days after a service of complaint for nonpayment of rent, and limits the triable issues to tenant's default, precluding defenses based on landlords breach of duty to maintain the premises.

Posture: Unknown

Issue:Does the OR eviction process violate 14A Equal Protection?

Holding: No.

Rule:Non-paying renters in poorly maintained houses are not a protected class.

Reasoning:

The statute is for protection of landlords, but also tenants: it provides a speedy, judicially supervised proceeding.The constitution doesn't address landlord-tenant relations, and it doesn't authorize courts to extend tenancy while damage claims against a landlord are litigated.Therefore, this isn't like the constitutionally protected rights that require a strong justification in statutory purpose.

Dicta:Douglas (dissenting): there's a lot of poverty, and the home is important.

Lindsey v. Normet1972

Court: US Supreme Court

Facts:

Lindsey lived in Normet's apartments. The city delcares the building unfit for habitation. Lindsey asked for some repairs to be made, and Normit refused nearly all. Lindsey began to withold rent, and got threatened with eviction as a result.

Posture:Before the eviction proceedings get rolling, Lindsey files suit claiming that the eviction statute is unconstitutional.

Issue:Does the procedure for eviction of nonpaying tenants violate either Equal Protection or Due Process?

Holding: No.

Rule: There is a rational basis for this.

Reasoning:Assurance of adequate housing is for the legislature.

Dicta:

Everyone wants prompt and peaceful resolution of these disputes.Dissent: there's no interest here compelling enough to justify throwing people out on the street on short notice.

Appellants, month-to-month tenants of appellee Normet, refused to pay their monthly rent unless certain substandard conditions were remedied, and appellee threatened eviction. Appellants filed a class action seeking a declaratory judgment that the Oregon Forcible Entry and Wrongful Detainer (FED) Statute was unconstitutional on its face, and an injunction against its continued enforcement. Appellants attacked principally (1) the requirement of trial no later than six days after service of the complaint unless security for accruing rent is provided, (2) the limitation of triable issues to the tenant's default, defenses based on the landlord's breach of duty to maintain the premises being precluded, and (3) the requirement of posting bond on appeal, with two sureties, in twice the amount of rent expected to accrue pending appellate decision, this bond to be forfeited if the lower court decision is affirmed. The District Court granted the motion to dismiss the complaint, concluding that the statute did not violate the Due Process or the Equal Protection Clause. Held:

1. Neither the early-trial provision not the limitation on litigable issues is invalid on its face under the Due Process Clause of the Fourteenth Amendment. Pp. 64-69.

(a) The time for trial preparation is not unduly short where the issue is simply whether the tenant has paid or has held over, and the requirement for rent security for a continuance of the action is not

irrational or oppressive. Pp. 64-65. (b) Appellants are not denied due process because rental payments are not suspended while the alleged

wrongdoings of the landlord are litigated, as Oregon may treat the tenant's undertakings and those of the landlord as independent covenants. P. 68.

(c) Appellants are not foreclosed from instituting suit against the landlord and litigating their right to damages and other relief in that action, nor have they shown that Oregon excludes any "available" defenses on the limited questions at issue in an FED suit. Pp. 65-66, 69. [405 U.S. 56, 57]  

2. Neither the early-trial provision nor the limitation on litigable issues is invalid on its face under the Equal Protection Clause. Pp. 69-74.

(a) The State has the power to implement its legitimate objective of achieving rapid and peaceful settlement of possessory disputes between landlord and tenant by enacting special provisions applicable only to such disputes. Pp. 70-73.

(b) Absent constitutional mandate, the assurance of adequate housing and the definition of landlord-tenant relationships is a legislative function. P. 74.

3. The double-bond prerequisite for appealing an FED action does violate the Equal Protection Clause as it arbitrarily discriminates against tenants wishing to appeal from adverse FED decisions. It heavily burdens the statutory right of an FED defendant to appeal and is not necessary to effectuate the State's purpose of preserving the property at issue. Pp. 74-79.

Affirmed in part and reversed in part.WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, MARSHALL, and BLACKMUN, JJ., joined. DOUGLAS, J., post, p. 79, and BRENNAN, J., post, p. 90, filed opinions dissenting in part. POWELL and REHNQUIST, JJ., took no part in the consideration or decision of the case.

Terminations of tenancy:

notice 3 can be challenged because of it lack of specificity, it must recite the specificity of the facts and the date or dates of the occurances.

Therefore notice 3 will not terminate the tenancy if challenged on the grounds of specificity.

Pg 13 shows example of specificity in termination of tenancy notice.

notice 4 trys to terminate for lack of payment on the increase of rent from last notice, however since the tenant did not pay the increase in rent in the last month they never agreed to the new terms because there was no mutual agreement.

by offering to create a new tenancy you are ending the old tenancy. You bought the last month rent, and now there is a new contract, so the question becomes has

the LL accepted the payment for the last month rent, so when an rent increase in done it must contain the last month rent.

The form on page 12 provides a debt collection notice. Pg 16 – if you do not place the last part of the language regarding the final 10 days to cure then they have up to the the last day of the month/court date.

LL burden in to serve, and that the time runs upon service. LL's should hire a process server who would then sign a certificate of service Do not trust the mail, can use certified mail, is delivery receipt of service? To prove service of notice, bring a witness, usually not challenged.

If you can't prove that they got the notice, you cannot terminate the tenancy, best case scenario is to hire the sheriffs to assist as a process server.

Civil process is not like summary processLindsey v. Normet case:the only thing the LL gets from the Oregon statute is possession,(in MA you can get possession and back rent)

issue 1: the time period was not considered significant, Issue 2: in oregon they have the independent covenant rule=[if I don't deliver the goods then

you still have to pay.] in an independent covenant jurisdiction the obligation to pay is independent, if the goods are not

delivered. Issue 3: there is no federal law on dependant covenants, therefore there is no shelter from the

statute through the equal protection clause. Issue 4: it was considered that it would be a undue burden to the tenant who probably will not

be able to afford it. *still good law

trying to evict with summary process. it is a civil system, you file a complaint, the serve it. Ask for a jury in the complaint, if you are tenant do not have to make a responsive pleading to the answer of the complaint, there is a triggering

event for request for jury and a time table but if you do not make a responsive pleading you do not waive your right to counterclaim.

must serve the complaint 7 days before the entry day(day you go to court) answer and counter claims are due 7 days later also evidence and admissions and discovery if you received and answer and good cause LL's can motion for discovery.

9/21/2011*missed last class get notes from somebody--->possibly Jollette9/28/2011*class canceled.

10/5/2011 left off with the State Sanitary Code. Problems at home that are violations with the State Sanitary Code. How does the State Sanitary Code affect Licensee?---->it affects any lawful occupant. The heating requirement begins on Sept. 16th and 68 degrees 7am-11pm then 64 degrees there only obligation for the LL is to have the ability to reach these temperatures, the T can

decide to turn it lower if they so please. Screens are required April 1st thru October 30th the sanitary code is the minimum standard of habitation for residential housing for the State. A child under 1 yrs old does not count as a person as a square footage occupant.

Hypothetical #4

in this hypo the grade level is not up to code sec. 402 and thee is a natural light violation because of the two rooms one that does not have window,

and the other that has an inadequate one. The main violation is that the there is only 1 means of egress. Here this would be used to inform the LL thru letter that the code violations result in there not being two bedrooms, and that they were rented this way in violation. So they must sue the original LL as well. But hopefully non of this would happen and things could be worked out that this information could get fixed when she left for the new job in Maine

“repair and reduct” the Max amount of money a T can put up for repairs is 4mos. Rent. But there are many prerequisites to be satisfied before this can be done. [This is MGL ch11 sec 127L-Repairs by tenants or residential premises to cure violations; reimbursement for cost]

if the situation is severe enough to merit a civil action by the T against the LL to enforce the code and seek temporary housing, if the Health Code hearing tells the LL to make the repairs and they have not done the repairs.

The State Sanitary Code are the minimum implied covenant between the LL and the T. but beware there can be express covenants when the lease/or written rental agreement is created.

10/12/2011

It is the LL's burden to pay for the hot water in a place he rents unless in writing it explicitly says the T will pay for it.

Young v. Patukonis the T did not have an written agreement about the providing of the utilities not being in writing violates the Sanitation code.But the court ruled theta the primary purpose is to protect the public and prevent violations rather than punish past violations as criminal offences.Therefore the LL was to pay for the damages being the failure to pay for the utilities.

Poncz v. Loftin

I: what damages is the LL liable when he T orally agrees to pay the cost of the utilities at the inception of the tenancy?

The court found this to be a technical violation of the consumer protection statute and as such the damages were nominal because an agreement was made and although in technical violation the real violation is not reducing the oral agreement to writing, this is because the Sanitary Code expressly permits arrangements between LLs and Ts where the T's pay utilities in exchange for for lower rent. In this case there was no claim that the premises were in violation of the warranty of habitability the damages asked for are inappropriate.

Boston Housing Authority v. Hemingway

the T's made demands that the LL fix the sanitary code violations. LL did not fix, BHA informed the LL that they were in violation of the Sanitary Code. The Ts felt that under GL c. 239 §8A they could withhold their rent until the LL fixed the problems. They did not meet the statutory requirements of 8A to put the BHA on notice of the code violations.

when this case was decided independent coveants was the rule constructive eviction- is when the conditions [a condition going to the heart of the tenancy] are

so bad that the T is released from the burden of the lease and may leave the premises. The problem for the T is that they actually have to leave, and move and find a new place to live. It also puts the T at peril that their decision is wrong according to the law and are still bound by

the lease.

the Ingalls case not apply independent covenants b/c the purpose of the lease was not the transfer of the interest of the land but the use of the demised premises for immediate ocupation but it had limited facts and therefore limited the scope of the rule.

The Burt case: a commercial tenancy where it was held that a T may get damages in a suit for equitable

relief despite their failure to abandon the premises. Does not require that the T determine at its peril that the circumstances that amount to

constructive eviction Does not require that the T vacate and determine premises, possibly at expense while

remaining subject to the risk that a court may decide that the LL's breach does not amount to a level going to the LL's obligation.

what this does is eliminate the Theory of independent covenants but rather that they are dependent covenants under the common law.

The implied Warranty of Habitability is this dependent covenant between the LL and the T where the LL in exchange for payment of rent from the T, the LL will deliver and maintain the premises in a habitable condition.

MGL c239 §8A

1. owner must know about conditions2. the T must not have caused the condition(s)3. must not be a hotel or lodging house or rooming house.4. T doesn't have to vacate for LL to complete repairs.

At the inception of the Tenancy whether or not the LL inspects the unit must be in compliance with the sanitation code.

When something breaks the LL must receive notice that something is broken that is when the clock starts for the reasonable amount of time for correction.

The damages awarded is fair value as determined by the court usually based on the severity of the problems that make it unlivable.

What its worth in fair market value vs. what it s worth in it damaged condition. Determines this amount for damages. If the T's claim exceed the amount of rent due this is also a defense against possession by the

LL. (means that the T cannot be evicted) if the T loses they can be liable for the Costs of the LL in the court case. In this case an ultimate defence is where the LL will not gain possession.

Berman & Sons v Jefferson

The obligation of a tenant to pay full rent abates as soon as the landlord has notice that the premises fail to comply with the requirements of the implied warranty of habitability; the landlord's lack of fault and his reasonable efforts to repair do not prolong the tenant's duty to pay full rent.

A landlord must comply at least with minimum standards prescribed by the State building and sanitary codes in order to satisfy the implied warranty of habitability. The duties of a landlord under the State Sanitary Code cannot be waived, bargained away, or qualified by customary practice; the code puts a landlord on notice that he must supply adequate heat and hot water, and an award of damages to a tenant who did not vacate her apartment for breach of the implied warranty of habitability in this respect was affirmed. As a matter of common law, rent abatement begins when notice of a defect in the premises is given by the tenant to his landlord or previously comes to the landlord's knowledge, not at a reasonable time after notice nor after a reasonable time to repair.

under abatement it starts when it occurs and ends when you fixed it. ---> this is the measure of damage.

Good faith repairs is not a defense against abated value. The normal application of the warranty of habitability of the use of abatement of rent due under consumer protection damages if the LL does not fix in time intentionally then the LL can

be subject to double damages to the T

10/19/2011

waiver of eviction is like not even serving notice to evict, an example of this is taking rent for future time after notice of eviction is given.

The tender of some of the rent, Holmes realty trust v. Granite city storage co.

Facts: prior to nov. 19, 1984 Mc Nally owned 50% stock in Granite city and 40% beneficial interest in Holmes realty. Kelly owned 50% in granite city and 60% interest in Holmes Realty. GC opened a storage business out of a building owned by Holmes Realty. The exchange agreement executed in Dec. 1984 provided Kelly to give McNally all his interest in Holmes Realty and Mc Nally to give all his interest to Kelly in Granite City. Kelly also lent GC 110,000 secured by lease and McNally's personal promise to payback. They both agreed that GC wold enter into lease with HR for the business premises. The rent, terms, and details were specified. Also HR agreed to build before July 1 1985 a 2nd floor addition to the premises. This area of the agreement was labeled “mutual promises and covenants.” HR never built the 2nd floor and GC paid rent until they withheld rent in May 1986. then HR instituted summary process.

Issue: Whether the lease and exchange agreement should be read together as one integrated agreement?

Rule: This is a question of fact that should be determined by the trier of fact using the justifications of:1. evidence put forward by GC of the business context2. 2. results intended to be accomplished3. the ID of the subject matter adressed in the agreements4. the simultaneous execution of the 2 documents.

Holding: Yes, a reasonable jury might not read the lease as a separate agreement.Here the lease and exchange agreement are closely interrelated. The most important terms if the agreement for renting the premises are included in both agreements. The provision in the exchange agreement for construction of additional space mas a major inducement for GC to enter the lease and

also for McNally in accepting the other aspects of the exchange. (McNally would be good by collecting rent for a while)

Issue: whether the covenant was independent or dependent?Rule: covenants in lease are independent “in the absence of clear indications to the contrary.”

Holding: the court felt that the proposition that the law is clear on independent covenants regarding a tenant in a nonresidential lease having an obligation to pay rent (and that the tenant has no right to withhold rent b/c of some breach by the LL) was simply untrue. The court felt that it was murky waters that there had not been a definitive answer to that question. They also decided not to decide the issue in this case. They also noted the lease under consideration was part of an over-all transaction including a related agreement which provided that the promises contained were to be mutual and dependent.

Conclusion: in the end the court, held that there was a material issue of fact existed as to whether there are “clear indications” that the parties intended that the covenant to pay rent be dependent upon the promises contained in the exchange agreement to construct the additional space.

John T. Wesson v. Leone Enterprises, Inc

Summary of the rule of law: the Supreme Judicial Court (SJC) dramatically altered the law governing commercial landlord-tenant relationships by overturning the long-standing common law rule of independent covenants in favor of a rule of mutually dependent covenants.

Under the common law independent-covenant rule, the respective promises of tenant and landlord in commercial leases were considered independent of one another. Consequently, a tenant was obligated to pay rent even if a landlord breached a covenant under the lease.

Under the mutually dependent-covenant rule adopted by the court in Wesson, the promises made by the landlord and tenant are (as the name of the rule indicates) dependent on one another. Thus, when a landlord fails to fulfill an obligation imposed by the lease (such as a duty to repair a leaking roof as in Wesson) the tenant may be justified in terminating its lease.

FACTS: John T. Wesson (landlord) rented space in a multi-tenant commercial building to Leone Enterprises, Inc. (tenant), a financial printing company. Over a five-month period, the tenant lodged numerous complaints with the landlord about leaks from the roof. The landlord took measures to repair the roof. After a period of two months without additional leaks or complaints of leaks, the tenant sent notice to the landlord that it was terminating its lease because of (amongst other reasons) "the serious leakage problem." The landlord sued the tenant claiming a breach of the lease and damage to the demised premises. The tenant raised counterclaims of constructive eviction and deceptive business practices under chapter 93A, section 11 of the Massachusetts General Laws.PROCEDURE: After a bench trial, the Superior Court judge found the tenant had been constructively evicted from the premises, finding the landlord's failure to adequately repair the leaking roof put the tenant's "business at risk.” As an alternative theory, the Superior Court judge held that even if the landlord's inaction did not rise to the level of constructive eviction, the tenant nonetheless rightfully withheld rent under the dependent-covenant rule as the landlord failed to provide an "essential" service in the lease - a "dry space." The judge awarded the tenant relocation damages. The landlord appealed and the SJC took the case on its own motion.

HOLDING: The SJC rejected the tenant's (and the lower court's) constructive eviction argument, citing insufficient evidence to establish that the leaking roof made the premises untenantable for its intended purpose. In fact, the court found that the tenant could carry on its business in the premises, even though the leaking roof may have made the tenant's operation less convenient and more expensive. The SJC, nonetheless, found for the tenant and upheld its lease termination based on the court's precedent-setting adoption of the dependent-covenant rule. **The facts in Wesson are particularly interesting because the court upheld a termination of the lease even though the roof had actually been repaired before the tenant terminated the lease.In reaching its conclusion, the SJC applied to commercial leases existing Massachusetts case law developed in the residential landlord-tenant context. The court noted that the theory underlying the independent-covenant rule - that a lease is a conveyance of property under which the right to possession of the land was far more important than the landlord's contractual obligation to provide services - no longer was viable in connection with modern commercial leases. Modern leases, the court reasoned, are more contractual in nature and tenants are more dependent upon landlords for the provision of services necessary for the use of the leased premises. RULE: The SJC determined that the mutually dependent-covenant principle set forth in the Restatement (Second) of Property was "the better rule." Section 7.1 of the Restatement provides, in pertinent part, that:Except to the extent the parties to a lease validly agree otherwise, if the landlord fails to perform a valid promise contained in the lease to do, or to refrain from doing, something . . . and as a consequence thereof, the tenant is deprived of a significant inducement to the making of the lease, and if the landlord does not perform his promise within a reasonable period of time after being requested to do so, the tenant may (1) terminate the lease. . . .The dependent-covenant rule does not require a finding that the premises are untenantable for their intended purposes (as in a constructive eviction defense). Rather it is enough for a tenant to establish that the landlord failed, after notice, "to perform a promise that was a significant inducement to the tenant's entering the lease in the first instance." The SJC concluded that, at the time the lease was made, the parties understood that the tenant needed a dry space to safely conduct its printing business, and that the landlord would provide the same by agreeing to maintain the roof and repair any roof leaks. The court expressly declined to reach the issue of whether an implied warranty of suitability (similar to the implied warranty of habitability found in residential leases) should be adopted for commercial leases. The most significant issue left unresolved in Wesson is the level at which the landlord's failure to provide the promised services will entitle a tenant to withhold rent or terminate its lease. Also left unanswered is whether tenants confronted with a landlord's failure to provide services have a menu of potential remedies (e.g., abatement, self-help with offset rights) in addition to the common law remedy of termination allowed by the court.It remains unclear whether the courts will enforce offset, abatement and termination provisions in current leases in accordance with their terms, or add a common law termination right to the existing contractual rights. It also remains to be seen what impact Wesson has in today's declining office market where tenants stuck with either an above-market lease or excess leased space may attempt to use this case to terminate their leases or gain the leverage to negotiate more favorable lease terms under a threat to terminate.The lease is still negotiable, but with breach of the dependent covenant the T can move or stay and earn damages for the failure of the LL to complete his obligation to maintain the property.Lease should always be in writing.Commercial and residential must remain separate. There is a common-law dependent covenant theory that enoforces the implied dependent-covenants between the LL and the T

in summary process and eviction proceeding you are limited in what you can introduce in regards to law.

M.G.L. c. 186 § 14 ---> Wrongful acts of LL; premises used for dwelling or residential purposes; utilities, services, quiet enjoyment; penalties; remedies; waiver

when you deliver possession the tenant is entitled to a warranty of quiet enjoyment LL's promise that the T shall have the right to quietly enjoy the demised premises. The most typicaly injuction available is when there is no heat and the civil action taken by the T

to force the LL to supply heat. Anytime interference with possession by the LL to the T is an interference of quiet enjoyment. The elevator failure is an inducement for rent as such is also can be expressly in the contract for

lease and will be considered violation of the right of quiet enjoyment. Changing the locks by a LL is retaking possession of the premises.

Simon v. SolomonOn a claim by a tenant seeking to recover damages from her former landlord for reckless infliction of emotional distress, the evidence warranted findings that the landlord had recklessly failed to make repairs necessary to prevent repeated flooding of the tenant's apartment, that its long and repetitious course of conduct toward the tenant was outrageous, and that the landlord's conduct was the proximate cause of the tenant's severe emotional distress. A tenant may properly bring a civil action against a landlord to recover damages under G. L. c. 186, Section 14, for interference with quiet enjoyment of residential premises without first seeking criminal charges against the landlord under that statute's criminal provisions. Malicious intent is not a condition of liability under G. L. c. 186, Section 14, which prohibits a landlord's interference with a tenant's quiet enjoyment of residential premises, and a landlord's reckless conduct was within the scope of Section 14. Where a landlord, by failing to prevent repeated flooding, interfered with a tenant's quiet enjoyment of her apartment, it was liable to the tenant under G. L. c. 186, Section 14. A statement by a psychiatrist, in the course of his testimony as to the cause of a tenant's emotional distress, that the tenant "appeared sincere and honest," was admissible, in the discretion of the judge, as an explanation of the basis of his opinion.At the trial of a claim by a tenant against her former landlord for injuries caused by unsanitary conditions in her apartment, no error appeared in the admission in evidence of two tenant complaint slips prepared after commencement of the action, dated several months after the tenant had moved out of her apartment and taken from the landlord's telephone records, for the limited purpose of showing that the landlord's maintenance supervisor had notice of a flood, and thereby impeaching his testimony on cross-examination.

there was flooding <30 times from sewage from a backed up pipe there was also vermin, in the form of rats and roaches. Gem says that other T's were responsible for the conditions. Gem does not prove any causation as to where the water and slime are coming from. Everytime Gem gets a call from Solomon they get rid of the water/slime, they do not seek out

where the source of the flooding is coming from. But the court found that there is no requirement to make criminal charges but there is the

allowance for civil actions to be made against them. Plus the intentional doesn't need to apply to the civil standard.

What Gem did that violated the code is the lack of due dilligence on the part of the LL(Gem) to

find out the source of the flooding that was interfering with their tenant's right to quiet enjoyment of the premises.

HYPO #5

the court found that the LL was not in violation b/c they did not have the funds and the T gets a rent credit towards the time without heat this was wrong Being a LL is being a business and you cannot have a business without capital and what gives the court the power to change the mutuality of contract. And adjusting the amount of money that must be spent on heat is a cost of doing business.

10/26/2011

warranty of habitability can become costly each issue is separate claim.

Retaliation

this can be a defense or a claim.

Edwards v. Habib

Brief Fact Summary. A tenant reported sanitary code violations on leased premises and thereafter the landlord moved to evict the tenant.

Synopsis of Rule of Law. That proof of retaliatory motive does constitute a defense to any action for eviction.

Facts. Appellant Edwards rented housing property from Appellee Habib on a month to month basis in March 1965. Edwards then complained to the Department of Licenses and Inspections of sanitary code violations in the leased premises, which upon inspection uncovered 40 violations and ordered the landlord to correct them. Then, the landlord gave Edwards a statutory thirty day notice to vacate and obtained a default judgment for possession of the premises. Edwards moved to reopen the judgment and alleged excusable neglect for the default and as a defense to the eviction alleged that the notice to vacate was given by the landlord in retaliation for her complaints to the housing authorities. One judge set aside the default and concluded that if Edwards could prove a retaliatory motive for the eviction that would constitute a defense to the action for possession. The case was tried before another judge who deemed the evidence of retaliation irrelevant and directed a verdict for landlord. Edwards then appealed to this Court for a stay pending appeal to the intermediate court of appeals and the stay was granted. [interlocutory appeal] The intermediate appellate court held that the landlord, under applicable statutes, could give any reason for the notice to vacate and could therefore evict a month to month tenant upon thirty days notice. The court also found that the landlord’s right to terminate tenancy was not absolute, but that any exception to the general rule, requiring no reason to be given, had to based on a specific statutory exception. Edwards appealed.

Issue. Does the landlord have an absolute right under these circumstances to terminate the month to month tenancy and evict the tenant?

Held. No. Reversed and remanded.The promulgation of the housing code by the District of Columbia Commissioners under authority from Congress implies a change in the relative rights as between landlords and tenants.Proof of retaliatory motive is a defense to any action of eviction where the alleged retaliation occurs due to the tenant’s reporting of housing code violations.Edwards challenged the constitutionality of the statute under which the landlord may elect to terminate a month to month tenancy upon a thirty day notice to quit, where judicial enforcement of such statute would render state aid to the landlord in depriving tenant of a property right, 1.)namely, the tenant’s right to report housing code violations. The Court found that this issue need not be decided. Instead, the Court would allow the tenant to present proof in an eviction proceeding of a retaliatory motive by landlord in the instituting of the eviction suit.Because the Court has a duty, as a court of equity, to consider the social implications of its decisions, the Court found that the 2.) public policy of protecting tenants in slum housing from inequalities resulting from their social conditions must be considered in rendering this decision.The Court found that 3.) the balance between the statutes authorizing the landlord to evict a month to month tenant after thirty days notice and the housing code statutes can only be struck by holding the eviction statutes inapplicable where the court’s aid is sought to effect an eviction in retaliation for reporting housing code violations.

Discussion. Because this case was denied certiorari by the United States Supreme Court, the principles announced may have more persuasive value than a typical state case. Clearly, the Court was swayed by the social conditions and traditional notions of equity.

Notes:Retaliation case:

T reported violations of housing code, government found housing violations 1. T makes a free speech/ 1st amendment argument to support the LL is using the courts to retaliate against the T 2. the right to petition the government for help to enforce the laws 3. as a matter of public policy because the intention of the code itself is to protect T's to have

habitable residential premises, there should not be any reason for people to invoke the code for protection. To use this defense the T must prove retaliatory motive [ie: timing of events]

MGL 239 §2A--->is a defense to a claim for possession thru summary process. [a claim to evict], expressly protects residential premises, board of health report, judicial relief, joning and paying a T's union/condo associationMGL 186 §18--->is the civil claim for the T [counterclaim] for retaliation (for damages), expressly protects, Board of health report, joining a T's union, reporting to LL in writing, or making a payment to a T union/condo association.---> 1-3months rent or actual damages if they are more, which ever is greater, plus costs of suit and attorney's fee.

How long is the T protected by the retaliatory presumption for 6 months. Any material change to the rental agreement after the protected action within the 6 month window is presumed retaliation.

To be considered retalitory the LL if they move to evict, threat of evict, increase in rent, any material change to the rental agreement

the burden of proof is clear and convincing which is more than preponderance of the evidence, but less

than beyond a reasonable doubt. Must be a clear reason as to why to rebut or prove the evidence you are presenting.

Except for non-payment of rent!---> there is no subjugation to retaliation if there is a non-payment case against them. If it is purely a non-payment of rent case

the notice in writing to LL is not protected by the defense statute

the ability to rebut is the same, the presumption time is the same, but there has to be more than mere threat under the defense statute it has to be an actual report to the board of health etc...

the SoL begins from the time the violation is corrected, and the time between the report and the fix starts a new violation in retaliation.

Security Deposits

MGL 186 §15B----> if you want to reserve rights you must write them in the lease before hand such as emergency entry, abandonment entry, etc...

at the inception of the tenancy what can you require of a tenant:1. security deposit equal to 1st month rent2. 1st month rent3. last month rent equal to the 1st month amount.4. Purchase and installation of a key and lock

**cannot charge application fee.[when you do a rent increase you must get your last rent increased otherwise it will equal the same as the 1st month b/c it is the amount contracted for and changed.]** this is because a rent increase is like creating a new rental agreement.**

Cannot pay last month rent over time, but can pay security deposit over time. The LL takes the 1st and last month at the inception of the rental agreement and writes that the

security deposit will be paid over time (ie: $100 in addition to rent per month until fulfilled) and non-payment is a violation of the lease and makes T subject to eviction.

Mellor v. Berman

Synopsis of Law: A landlord who withholds the return of a security deposit and is subsequently held to be liable to return all or part of it is subject to multiple damages under G. L. c. 186, Section 15B (7), regardless of his good faith in withholding the deposit. MGL c. 186, Section 15B, does not authorize a trial judge to award attorney's fees attributable to any appeal without specific direction for such an award from the appellate court. Following the decision of the Appeals Court in 13 Mass. App. Ct. 983 (1982), the case was reported to that court by Peck, J. The Supreme Judicial Court ordered direct review on its own initiative.

Facts: The plaintiffs (tenants) leased residential property from the defendant (lessor) from June 1, 1978, to May 31, 1979. The tenants gave the lessor a security deposit of $500 and the first month's rent of $350. No statement of the condition of the premises was given to the tenants. See G. L. c. 186, Section 15B (2) (c). After giving the lessor proper notice of the termination of their tenancy, the plaintiffs vacated the premises. After the tenants had vacated the premises, the lessor inspected the premises and decided that she was entitled to retain the security deposit for damage allegedly caused by the plaintiffs in excess of ordinary wear and tear. A letter was sent by the lessor to the tenants, setting forth the damage to the premises and the cost of repairs, estimated at $580.49.

The tenants disputed the lessor's allegations of damages and filed a civil action in the Housing Court, seeking treble damages, costs, interest, and attorney's fees, pursuant to G. L. c. 186, Section 15B (7), for wrongful conversion of their security deposit. The lessor counterclaimed for damages in the amount in excess of the security deposit, $55.49.The Housing Court judge found that the damage to the premises attributable to the plaintiffs amounted to $311.44. Ruling that the tenants were entitled to a balance of $213.56 from the security deposit, the judge entered judgment for the plaintiffs and ordered double damages in the amount of $427.12, plus interest of $31.62 and costs.The lessor made a motion to have the judgment reduced to actual damages in the absence of any bad faith on her part. The tenants moved for treble damages. Relying on Friedman v. Costello, 10 Mass. App. Ct. 931 (1980), the judge concluded that the amendment of Section 15B (7) by St. 1977, c. 979, increasing damages from double to treble damages, applied to any security deposit being held on and after September 1, 1978. He rejected the lessor's contention that multiple damages applied only to situations where there were findings of bad faith on the part of the landlord. Accordingly, the judge amended judgment for the plaintiffs by trebling the damages to the amount of $640.68. The amount of interest on the security deposit remained the same. The judge also ordered interest on the judgment to be added to the damages, pursuant to G. L. c. 231, Section 6C, and costs and attorney's fees in the amount of $750. The lessor appealed the decision of the judge, which the Appeals Court affirmed. Subsequently, the tenants filed a motion seeking an award of attorney's fees and costs arising out of the appeal. The lessor filed a motion for relief from judgment, claiming that multiple damages could not be awarded absent a finding of bad faith. The basis of her motion is a decision of this court, McGrath v. Mishara, 386 Mass. 74 (1982), decided subsequent to the decision by the Appeals Court. See Mass. R. Civ. P. 60 (b) (6), 365 Mass. 828 (1974). On these motions, because of the frequency of cases involving retention of security deposits, the judge reported questions of law to the Appeals Court. Mass. R. A. P. 5, as appearing in 378 Mass. 924 (1979). We transferred the case to this court on our own motion.Issue: first question is the applicability of the multiple damages provisions of G. L. c. 186, Section 15B (7), regardless of the lessor's good faith belief for retaining all or a portion of a security deposit, is largely dispositive of the questions reported.Holding: under the statutory provisions, an award of treble damages for improper retention of all or part of a security deposit is not conditional on a finding of bad faith or willful violations by the lessor.Legal Reasoning: the LL must provide itemized list of deductions from security deposit in 30 days. Can deduct damages, rent(**has specific qualifiers), [see notes below for more things LL can deduct]That there was no Bad Faith in the deductions. Therefore not subject to the treble damages. But must go back to the Legislative intent the Legislature has the authority to provide for the recovery of such multiple damages in cases involving "conduct that it regards as particularly reprehensible."

They could have put in a bad faith qualifier but they chose not to include this in the statute.

Notes: a landlord may use the deposit for any cleaning or repairs necessary to restore the rental unit to its condition at the beginning of the tenancy (minus ordinary wear and tear), and to cover unpaid back

rent (and a reasonable amount of future rent if you break a lease and leave early). We emphasize that the landlord may not use your security deposit for the cost of remedying the results of ordinary use. (IE: if the paint is ruined because your toddler mistook the wall for an easel, expect to be charged; but if the carpet needs to be replaced because it’s ten years old and is simply worn out, it’s the landlord’s responsibility.)it’s not always easy to decide what constitutes ordinary wear and tear or what must be done to leave a rental unit clean. Here are some guidelines: You shouldn’t be charged for damage or filth that was there when you moved in. If the landlord can repair an item without diminishing its function or appearance, he ought to choose

that over replacement. The longer you’ve lived in a place, the greater the amount of wear and tear. If you’ve paid a nonrefundable cleaning fee (some states allow them in addition to security deposits),

you shouldn’t be charged for additional cleaning.Depending on the state, landlords generally have from 14 to 30 days after you leave—whether voluntarily or by eviction—to return all or part of your deposit. (State laws are in Appendix B.) The landlord must mail either of the following to your last known address (or forwarding address, if known):

Your entire deposit, with interest if required (the chart in Appendix B lists state laws requiring interest).

A written, itemized statement as to how the deposit has been applied toward back rent and costs of cleaning and damage repair, together with whatever is left of the deposit, including any interest that is required. In most states, landlords must send the itemization along with any deposit balance. A few states add an additional step that gives tenants time to respond to proposed deductions before they are actually made.

If your landlord is slow in returning your deposit, a reminder letter is in order. (In some states, deliberate or “bad faith” retention of the deposit subjects the landlord to sizable penalties.)

11/9/2011Castenholz v. Caira, 21 Mass. App. Ct. 758 (1986). "A landlord who accepts a security deposit and fails to comply with the deposit requirements of G. L. c. 186, Section 15B (3) (a)," is liable to the tenant "for the return of the security deposit pursuant to G. L. c. 186, Section 15B (3) (a)." "If the landlord refuses to acknowledge his error and return the deposit, thus forcing the tenant to employ legal process to vindicate his rights, the landlord will be liable for treble damages, interest, costs, and attorney's fees."

Jinwala v. Bizzaro, 24 Mass. App. Ct. 1, 4 (1987). The statutory language itself is the principal source of insight into the legislative purpose. Also, where the language of the statute is plain and unambiguous, as here, legislative history is not ordinarily a proper source of construction.

Taylor v. Beaudry, 75 Mass. App. Ct. 411 (2009). Returning a security deposit after more than thirty days have passed since the end of the tenancy, but before litigation, does not get a landlord off the hook for triple damages. The "Castenholz framework is inapplicable to a landlord's failure to return the tenant's security deposit within the specified thirty days." In Castenholz, the tenant's demand for return of the deposit was the triggering event. In this case, "The statutory obligation to return the deposit is clear, as is the time within which the deposit must be returned. Equally unambiguous are the consequences of failing to comply with that deadline."Notes:

Security Deposits

MGL 186 §15B----> if you want to reserve rights you must write them in the lease before hand such as emergency entry, abandonment entry, etc...

at the inception of the tenancy what can you require of a tenant:1. security deposit equal to 1st month rent2. 1st month rent3. last month rent equal to the 1st month amount.4. Purchase and installation of a key and lock

**cannot charge application fee.[when you do a rent increase you must get your last rent increased otherwise it will equal the same as the 1st month b/c it is the amount contracted for and changed.]** this is because a rent increase is like creating a new rental agreement.**

Cannot pay last month rent over time, but can pay security deposit over time. The LL takes the 1st and last month at the inception of the rental agreement and writes that the

security deposit will be paid over time (ie: $100 in addition to rent per month until fulfilled) and non-payment is a violation of the lease and makes T subject to eviction.

LL must give receipt once first month rent is given, protects LL and T last month rent must be same cost as first month rent at the inception of the tenancy, also receipt

must be given, this receipt must contain: the amount the date received intended application as last months rent the name of the person receiving it if an agent takes the money the name of the lessor for whom the rent is received description of the property rented or leased statemet of that T is entitled to interest on this rent payment at 5% or a less amount if

received from a bank where the deposit has been held a statement indicating that T must give fowarding address at the termination of the tenancy

where interest can be sent ** Not required to deposit

the interest begins to accrue the first day of the tenancy and distributed annually or at the end of the tenancy

the security deposit interest does not accrue until the first year and must be distributed annually

upon receipt of security deposit, a receipt from LL must be given containing: the amount the name of the person receiving it if agent, the name of the lessor date received description of the rental property receipt signed by person receiving the deposit

10 day later must provide: [or at time of receipt of security deposit] written statement of the condition of the rental prop also listing of existing damage, including sanitary code violations signed by LL or his agent

** LL must give notice of annually of the interest accrued, and notice that you can deduct the interest. if he LL does not tell you what it was then you can deduct 5% from the next month's rent this helps the LL b/c if they do not pay the T the interest at the end of the tenancy, the T will sue and get Treble

damages

SD must be in a bank and beyond the claim of creditors or the LL, including foreclosing mortgagee or trustee in bankruptcy, in a interest bearing account,

there must also be a receipt and it must have the name and location of the bank

the SD must be given by 30 days after the occupation of the rental prop

11/15/2011

Castenholz v. Caira, 21 Mass. App. Ct. 758 (1986). "A landlord who accepts a security deposit and fails to comply with the deposit requirements of G. L. c. 186, Section 15B (3) (a)," is liable to the tenant "for the return of the security deposit pursuant to G. L. c. 186, Section 15B (3) (a)." "If the landlord refuses to acknowledge his error and return the deposit, thus forcing the tenant to employ legal process to vindicate his rights, the landlord will be liable for treble damages, interest, costs, and attorney's fees."

it is up to a reasonable time, 3 months is too long, should return as soon as possible for LL to end case.

Avoidance of violating suit is the purpose for the tripling of the damages. Here the new owner should have been properly transferred by the last LL. Otherwise by not

transferring properly the last LL is responsible for the damages.

subsection 6, requires 5 catagories for immediate return of the deposit:

1. duty to put SD in escrow also LL forfeit if no comply2.3. a4. a5. a

subsection 7 maintains 3 of these for treble damages:1. for violations of 6(a)2. a3. a

if there is a violation of 3(a) entitled to immediate return of SD, upon notice by T, refusal by the LL may be liable for treble damages.

Jinwala v. Bizzaro, 24 Mass. App. Ct. 1, 4 (1987). The statutory language itself is the principal source of insight into the legislative purpose. Also, where the language of the statute is plain and unambiguous, as here, legislative history is not ordinarily a proper source of construction.

3 cases here:1. LL. summary process-----> T. counterclaim for violation of security deposit then landlord

moved to amend the summary process complaint to add a claim for damages to the premises;

the motion was denied. -----> why not appropriate in summary process for eviction case.---> b/c it was for damages not for possession.

2. LL claim for 100 rent civil action for damages.3. LL claim for 1200 damages to premises. T. appealed to the Superior Court from a judgment of

$1,200.00 entered for the landlord on the damage claim. See G. L. c. 218, Section 23. On the tenant's motion, a judge of the Superior Court entered a summary judgment for the tenant and ordered the landlord to pay to the tenant $500.00 as costs and attorney's fees.

LL is not precluded from filing a separate claim for damages even if he has already filed for summary judgment.

Taylor v. Beaudry, 75 Mass. App. Ct. 411 (2009). Returning a security deposit after more than thirty days have passed since the end of the tenancy, but before litigation, does not get a landlord off the hook for triple damages. The "Castenholz framework is inapplicable to a landlord's failure to return the tenant's security deposit within the specified thirty days." In Castenholz, the tenant's demand for return of the deposit was the triggering event. In this case, "The statutory obligation to return the deposit is clear, as is the time within which the deposit must be returned. Equally unambiguous are the consequences of failing to comply with that deadline."

LL did not do it right in addition to not sending it on time. Failed to meet the standards of G.L. 186 15B.

The crux is that the LL did not comply within the 30 days of the termination of the tenancy castenholtz demand concept did not apply to (e) where the distinction in (e) is that no demand

need be made, but when the T vacates as a termination of the tenancy there is 30 days. Specifically.

Consumer Protection the statute below is part of §93A governs 3 acts:

1. fairness/unfairness----> look at the position of the parties and a balance of the equities.2. deceptive---->fraud, misrepresentations, and omissions. intentional and negligent.

a) The breach, the statute, the violation, the act and the relief in the 30 day demand letter.b) If you respond with settlement offer that is reasonable, they get no attorney fee's from that

time forward.3. regulations by the attorney general

§93A can be raised as a counter claim, when this happens there is no demand letter.

pg. 293----> 3.01 definitions (applicable to LL & T)

pg 295----> 3.16 General

pg 296----> 3.17 Landlord-Tenant

Montanez v. Bragg

Tenants brought action against landlord for deceptive act or practice by renting condemned unit and by failing to remedy violations of Sanitary Code. The Housing Court, Hampden County, entered judgment for tenants, but declined to increase damages for willful or knowing violation. Tenants appealed. The Appeals Court, held that landlord's renting of uninhabitable apartment with inadequate heating facilities was made with reckless disregard for whether representation of habitability was true or false and was willful, false representation.

The judge further found that the defendant's conduct in renting a substandard apartment violated G.L. c. 93A, § 2(a ). He concluded, however, that the defendant's conduct “was not a willful or knowing violation” of G.L. c. 93A but was “due to a misunderstanding as to the requirement[s] of the State Sanitary Code....” Accordingly, the judge refused to multiply damages under the provision of G.L. c. 93A, § 9(3), inserted by St.1969, c. 690, which authorizes recovery of “up to three but not less than two times [actual damages] if the court finds that [the unfair or deceptive act or practice] was a willful or knowing violation of ... section two....”

1. by renting the apartment the defendant warrentied the habitability of the apartment.a) He was cognizant of conditions, particularly the lack of adequate heating facilities, that

rendered it uninhabitable. These facts compel the conclusion that the defendant, at the very least, had made a willfully false representation in violation of G.L. c. 93A, § 9, because he had “made the representation without knowing whether it was true or false and with reckless disregard for whether it was true or false.”

2. The “willful or knowing” requirement of § 9(3), goes not to actual knowledge of the terms of the statute, but rather to knowledge, or reckless disregard, of conditions in a rental unit which, whether the defendant knows it or not, amount to violations of the law

Leardi v. Brown

Certain language in a landlord's printed form of lease which had a tendency to deceive residential tenants with respect to the landlord's obligation to deliver and maintain the leased premises in a habitable condition and which suggested that the tenant, by his signature on the lease, waived his right to habitable housing was unlawful under G. L. c. 93A, the Consumer Protection Act.

A landlord's inclusion of unlawful provisions in a printed lease form constituted an injury cognizable under G. L. c. 93A, the Consumer Protection Act, even though the aggrieved residential tenants conceded, for purposes of a motion for summary judgment, that the landlord had never attempted to enforce the unlawful provisions against any of them and that none of them had ever read those provisions.

Where the plaintiffs in an action under G. L. c. 93A showed that the defendant had invaded their legally protected interest in being free from unlawful provision in their apartment leases, but did not show that they had suffered any actual harm as a result, it was error for the judge to award treble the minimum damages of twenty-five dollars.

the question of injury is what has been un attack.

Here the previous §93A required an injury,

Where, in an action under G. L. c. 93A by a class of tenants against their landlord, in which the sole injury at issue was the tenants' right to be free from certain unlawful provisions in their apartment leases, one award of statutory damages was to be made for each leasehold.

A demand letter under G. L. c. 93A, Section 9 (3), from a class of tenants to their landlord, in which the tenants adequately described the injury they had suffered, was not rendered defective by the inclusion of improper requests that the tenants be paid their attorney's fees and that the landlord consent to the entry of a judgment.

The judge who heard an action under G. L. c. 93A correctly concluded that a landlord's response to a demand letter from his tenants was "too indefinite . . . to be regarded as reasonable," where the landlord merely offered not to enforce any provision in the tenants' apartment leases that was contrary to law.

A judge was not clearly wrong in concluding that the conduct of a landlord's agent did not give rise to liability of the landlord either for interference with a tenant's quiet enjoyment of her apartment or for intentional infliction of emotional distress.

** §93A can be used under class action no need for actual injury. ---> case says that legislature provides that with the adjustments to the statute creates an injury in the form of violating a right. No tripling when there is no actual injury to the T.

deceptive §93A case complaints by T---> rests on deception by misstatements of the law the lease terms: that there is no implied warranty except... give notice of issues with rental property within 2 days or everything considered ok

LL argument is that they never have enforced them.

11/30/2011

Prof described next section as dealing with discrimination.

civl rights act of 1866-1982---> here the only protected category was race can be awards of compensatory, equity, punitive, and attorney's fees. problem is that you have to prove the discriminatory motive

in 1968 we got Title VIII federal fair housing act under this title we added suspect classes such as

race, color, religion, sex, natural origin applies to multi- family house where 5 or more units if owner occupied if no owner occupied then as many as 4 units. Encompasses 151B

which adds suspect classes such as age, veteran status, recipient of public assistance, children, marital status,

disabled/handicapped, blindness ** in Mass no one can deny fair housing if the person is using section 8 or welfare,

None of the following exceptions based on the type of housing do not follow for race in the 1982 act! The purpose of these is to prevent LL's from advertising discriminatorily because it

discourages those in the suspect class from applying, ie: further, the stability of a person on section 8 requirements benefits the LL.

Asking for injuctive relief if you have a case, and ask for the aprtment to not be rented out and it is approved then typically it can be settled quickly

the damage involved can be injury by being discriminated against Here attorney's fees do not get stopped they continue to the end

Smith v. Adler

pretense: LL makes other reasons such as why he did not want to rent to to Gloria because of race

used reasons such as did not want to rent to working mother with infant.

Gnerre v. MCAD

sexual harassment by LL on T. since she refused his advances he refused to repair the house for her.

City wide associates v. Penfield

hallucinating old lady defaced rental property. LL evicted for lease damage. She was disabled and court favored her because of her need.

security deposit exceeded the damage done, also LL not responsible for damaged she created. The seriousness/substancial of the damages did not allow for equity to provide that she be

evicted even though she did violate the lease.

12/5/2011Review class hypotheticals