|Arthur C. George is a partner in the law firm of George & George in Stoughton. The firm’s comprehensive practice includes civil litigation, personal injury, property law, banking law, probate and family law and municipal law.
The ancient Greeks sought nomos (rationality and order), that is to say, they sought law out of chaos. The Massachusetts Appeals Court in Olympian fashion likewise in its recent decision of Jablonski v. Casey1
has laid out for the bar a thoughtful compendium of landlord and tenant statutory and case law, rendering Jablonski v. Casey
a fruitful stop on the summary process trail. The court summarized the facts as follows:
The landlord, H. Frank Jablonski and Barbara Jablonski, doing business as York Properties (“York”), brought a summary process action in the Quincy Division of the District Court Department based on non-payment of rent. The tenant, Renate Casey (“Casey”), answered and counterclaimed that York had breached the warranty of habitability and the covenant of quiet enjoyment by failing to repair certain conditions in the premises. She also claimed retaliatory eviction in violation of General Law chapter 93A.
Casey had been a tenant of York since October 1989. She resided at Presidential Acres, a large apartment complex located in Randolph. Initially, her tenancy was under a lease but she continued as a tenant at will, paying rent of $920 per month. Casey did not pay rent for July, August, September and October 2001, leaving a balance to York of $3,680. She was served with a notice to quit for non-payment of rent on Aug. 17, 2001, and a summary process complaint on Sept. 5, 2001.
On Sept. 4, 2001, York received an unsigned letter dated July 21, 2001, from Casey or from someone acting on her behalf complaining of several problems with her apartment. The letter claimed that Casey was having problems with dryer vent odors, leaky windows, bathtub drainage, a torn linoleum floor, ant infestation, a noisy refrigerator, cracks in her walls and a leaky toilet.
The Randolph Board of Health conducted an inspection of the premises on Sept. 8, 2001, and documented several of Casey’s complaints. A list of these itemized and documented complaints was sent to York. A reinspection was conducted on Sept. 22 and the Board of Health found that York had made all the requested repairs with the exception of some remaining cracks in the walls, some dirt falling from a bathroom ceiling fan and some evidence of ant infestation. York replaced the kitchen floor, replaced windows in two bedrooms, installed a new refrigerator, sanded and repainted the walls, repaired the toilet, replaced the motors in the ceiling fans and twice exterminated for ants in Casey’s apartment and in the entire building.
The court addressed three major areas of summary process law – warranty of habitability, the implied covenant and statutory right of quiet enjoyment and retaliatory eviction — in Casey’s argument for reinstatement of tenancy pursuant to General Law chapter 239, section 8A.
Warranty of habitability
During the rental of any premises for residential purposes, whether pursuant to a written or oral lease and whether for a specified term or as a tenant at will, there exists an implied warranty of habitability requiring “that the premises are fit for human occupation.”2 This means that at the inception of the rental, there are no latent (or patent) defects in facilities vital to the use of the premises for residential purposes and that these essential facilities will remain during the entire term in a condition which makes the property livable.3
The Court in Jablonski continued
Our modern view has determined that a residential lease is a contract between a landlord and a tenant. The landlord promises to provide and maintain residential premises in a habitable condition. The tenant promises to pay the agreed upon rent for the habitable premises. “These premises constitute interdependent and mutual considerations. Thus, the tenant’s obligation to pay rent is predicated on the landlord’s obligation to deliver and maintain the premises in habitable condition.”4
The court went on to say, “We have required a material and substantial breach of the warranty, representing a significant defect in the property itself in order to excuse the tenant’s obligation to pay rent. ‘For example (a) dwelling affected with a substantial Sanitary Code violation is not habitable.’”5
Drawing on Hemingway, the court added, “The existence of a material or a substantial breach is a question of fact and must be determined in the circumstances and facts of each case.” Factors aiding the court’s determination of the materiality of an alleged breach include:
a) the seriousness of the claimed defects and their effect on the dwelling’s habitability;
b) the length of time the defects
c) whether the landlord received written or oral notice of the defects;
d) whether the residence could be made habitable within a reasonable time; and
e) whether the defects resulted from abnormal conduct or use by the tenant.6
Casey had argued that based upon the Board of Health’s report substantiating certain of the complaints of sanitary code violations, the trial judge was required to find that York had breached the warranty of habitability. Quoting McAllister v. Boston Housing Authority,7 the court stated, “Not every violation of the Sanitary Code however will support a claim of breach of warranty.”
The trial judge in Casey further specifically found that Casey had failed to prove a breach of warranty of habitability. Applying the clearly erroneous standard and the deference that must be given to the trial judge’s opportunity to weigh the credibility of the witnesses in that standard,8 the Appeals Court concluded that based on the review of the trial judge’s findings of fact and the evidence supporting them, there was no error in ruling that there was no breach of the warranty of habitability applicable to Casey’s premises.9
Casey’s remaining counterclaims
Casey counterclaimed that York breached her covenant of quiet enjoyment. Similar to the warranty of habitability during the rental of any residential premises, there exists an implied covenant and statutory right of quiet enjoyment.10 The Court in Casey added, citing Doe v. New Bedford Housing Authority,11 that the court has interpreted
this obligation to mean that the covenant of quiet enjoyment protects a tenant from serious interference with her tenancy. Generally, the landlord must have had notice of the condition interfering with the tenant’s quiet enjoyment of the premises, and he must have at least acted negligently in not alleviating the condition.12
In Jablonski, the court found York acted immediately upon being notified by Casey of the defective conditions. Although those conditions had been documented by the Board of Health pursuant to an inspection, it was significant to the court that a reinspection less than two weeks later indicated that substantially all the conditions had been satisfactorily addressed. The court found that the trial judge did not err in denying the requested ruling of law that a breach of the covenant of quiet enjoyment had occurred, and they saw no evidence in the record of interference with Casey’s enjoyment of the premises. They further found that Casey was not entitled to prevail on her counterclaim for retaliatory eviction under General Laws chapter 186, section 18 and chapter 239, section 2A.
Casey had argued that her eviction was in retaliation for signing a petition in November 2000 complaining of conditions in several of the apartments at Presidential Acres. The court, stating that the trial judge did not find that this petition was ever sent to York, further stated that even if York had received the petition in November 2000, the eviction would not be presumed to be retaliatory because the eviction process did not begin until August 2001, more than six months later.13
The court further stated, however, that when, as in the Jablonski v. Casey case, the eviction is based on non-payment of rent, a finding of retaliation will not normally lie,14 and based on the absence of either a breach of the warranty of habitability, the covenant of quiet enjoyment, and no finding of retaliatory eviction, the Court agreed with the trial judge that no violation of General Law chapter 93A occurred.
Lastly, Casey argued that she was entitled to reinstatement of her tenancy pursuant to General Law chapter 239, section 8A, which allows a tenant to withhold rent because of conditions that endanger or materially impair the tenant’s health, safety, or well-being.15
The trial judge found that York did not have notice of the complaint of conditions until Sept. 4, 2001, some two months into Casey’s rent arrearage and after she had received a notice to quit. Chapter 239, section 8A states,
Whenever any counterclaim or claim of defense under this section is based on any allegation concerning the condition of the premises . . . the tenant or occupant shall not be entitled to relief under this section unless 1) the owner or his agents, servants or employees, or the person to whom the tenant or occupant customarily paid his rent, knew of such conditions before the tenant or occupant was in arrears in his rent.16
The Court stated that Casey could not withhold her rent without justification and expect to retain possession of the rented premises. Citing Hemingway, it stated that
if the tenant fails to follow Chapter 239 Section 8A’s procedures, [her] refusal to pay some or all of the rent due will subject her to eviction proceedings to which [she] will have no defen[s]e. . . [S]he cannot use the landlord’s [alleged] breach of the habitability warranty as a defen[s]e to a Notice to Quit for Non-Payment of Rent.
The legacy of Jablonski v. Casey, in addition to being a concise compendium of the summary process law it describes, is a call for fundamental order and fairness from both landlord and tenant.
1. Jablonski v. Casey, 64 Mass. Appeals Court 744, 835 N.E. 2d 615 (2005).[back]
2. Boston Housing Authority v. Hemingway, 363 Mass. 184, 199, 293 N.E. 2d 831 (1973).[back]
3. Hemingway, 363 Mass. At 199, quoting Kline v. Burns, 111 N.H. 87, 92, 276 A2d, 248, (1971).[back]
4. Id. at 198.[back]
5. Berman & Sons, Inc. v. Jefferson, 379 Mass. 196, 201-202, 396 N.E. 2d 981 (1979).[back]
6. Hemingway, 363 Mass. at 200-01[back]
7. McAllister v. Boston Housing Authority, 429 Mass. 300, 305, 708 N.E. 2d 95 (1991).[back]
8. See Mattoon v. Pittsfield, 56 Mass. App. Ct. 124, 139, 775 N.E. 2d 770 (2002); Mass. R. Civ.P.52A as amended 423 Mass. 1402 (1996); United States v. United States Gypsum Co., 333 U.S. 364, 395, (1948). A finding is clearly erroneous when although there is evidence to support it the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.[back]
9. See Commonwealth v. Boncore, 412 Mass. 1013, 1014, 593 N.E. 2d 227 (1992) (“[c]redibility is for the fact finder, not an appellate court”).[back]
10. See Simon v. Solomon, 385 Mass. 91,102, 431 N.E. 2d 556 (1982); Mass. Gen. Laws Ch. 186, § 14. [back]
11. Doe v. New Bedford Housing Authority, 417 Mass. 273, 285, 630 N.E. 2d 248 (1994).[back]
12. See Al-Ziab v. Mourgis, 424 Mass. 847, 850-51, 679 N.E. 2d 528 (1997).[back]
13. See Mass. Gen. Laws ch. 186, § 18 (notice by a landlord of termination of tenancy within six months after tenant complains of conditions in apartment, creates a “rebuttable presumption that such notice . . . is a reprisal against the tenant.”)[back]
14. See Id. (“The receipt of any notice of termination of tenancy, except for nonpayment of rent…”).[back]
15. Mass. Gen. Laws ch. 239, § 8A, third paragraph as amended by St. 1977, ch. 963.[back]
16. See Mass. Gen. Laws ch. 239, § 8A, second paragraph as amended by St. 1987, ch. 773,