Opinion
18-P-1534
01-10-2020
Kenneth R. COUTURE & another v. Amanda SLOAN & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs, Kenneth R. Couture and Langford LLC (collectively, landlord), appeal from an amended judgment of the Housing Court in favor of the defendants, Amanda Sloan and Ian Moore (collectively, tenants), on counterclaims alleging breach of the implied warranty of habitability; breach of the covenant of quiet enjoyment, see G. L. c. 186, § 14 ; and violations of G. L. c. 93A and G. L. c. 186, § 15B (2) (a ). The plaintiffs also appeal from a judgment awarding attorney's fees to the tenants. We affirm.
1. Breach of the implied warranty of habitability. a. Liability. "Implied in every residential lease is a warranty that the leased premises are fit for human occupation and will remain so for the duration of the tenancy (i.e., there are no latent or patent defects in the facilities vital to the use of the premises)." Jablonski v. Clemons, 60 Mass. App. Ct. 473, 475 (2004), citing Boston Hous. Auth. v. Hemingway, 363 Mass. 184, 199 (1973). "The implied warranty of habitability includes the promise to maintain a rented unit, ‘[a]t a minimum,’ in compliance with the State sanitary code." South Boston Elderly Residences, Inc. v. Moynahan, 91 Mass. App. Ct. 455, 462 (2017), quoting Simon v. Solomon, 385 Mass. 91, 96 (1982). See Hemingway, supra at 200 n.16 ("There may be instances where conditions not covered by the [sanitary] [c]ode regulations render the apartment uninhabitable").
We disagree with the landlord's argument that the code violations in the apartment were, as a matter of law, de minimus or minor to the point that recovery was impermissible. The judge based her overall finding of a breach of the warranty on conditions including "but ... not limited to" certain defective conditions included in the findings. The findings reflect that the judge credited the testimony of the tenants and a board of health agent who inspected the property regarding code violations. The problems identified included a defective tub spout, cracks in the kitchen floor, a leak in the kitchen sink, defective closet doors, lack of access to the breaker panel, a nonusable deadbolt lock on the front door, problems with the dryer vent, ventilation problems in the bathroom, and a leaking ceiling that caused water damage. The problems with tub spout, kitchen floor, and closet doors were described as creating safety concerns for Sloan's young daughter. Taken together, the judge did not abuse her discretion in determining that these conditions amounted to a material breach of the implied warranty of habitability. See Jablonski, 60 Mass. App. Ct. at 475.
We reject the landlord's argument that the judge clearly erred in finding the lack of a cover on the ventilation unit was a ventilation problem. The board of health agent's testimony on this point supported the judge's finding.
The landlord also argues that the judge clearly erred in finding the second bedroom lacked adequate ventilation for use as a habitable room. This finding, which was based on testimony from the board of health agent, may have relied on a misapprehension of the State sanitary code with respect to whether an exterior door can constitute a source of ventilation. See 105 Code Mass. Regs. § 410.280 (2005). In any event, we need not expressly decide the matter. The judge's finding that the same bedroom lacked adequate natural light, albeit only slightly less than as required by the State sanitary code, is well supported by the record. Under the State sanitary code, this would violate the requirements of a "habitable room" and supports the judge's conclusion that the room was not suitable for use as a bedroom as advertised by the landlord. See 105 Code Mass. Regs. § 410.250 (2005).
b. Damages. With respect to damages, the landlord contends that the judge erred by awarding abatement damages from the inception of the tenancy because there was no evidence that there were code violations at that time. We disagree. While the leaking ceiling did not occur until 2017, the record supports the judge's conclusion that many of the other defective conditions -- including the tub spout, kitchen floor, lack of natural light, and dryer vent problem -- were either present at or near the inception of the tenancy and persisted without repair for long periods of time despite notice to the landlord. The judge's decision to award damages from the inception of the tenancy was also strongly supported by a letter from the board of health dated November 24, 2014, informing the landlord that the apartment had State sanitary code violations and ordering the landlord not to rent the apartment until an inspection was completed and a letter of compliance was issued. While the landlord notes that the 2014 board of health inspection report was not admitted in evidence and that the November 24 letter did not specify what the specific violations were, the judge would have been warranted in finding that the violations were significant based on the board of health's determination that the apartment was not to be rented until an inspection was completed. "Although a detailed explanation of the trial judge's calculations would have been preferable, an approximate dollar amount is permissible; damages in rent abatement cases generally are not capable of precise measurement." Young v. Patukonis, 24 Mass. App. Ct. 907, 910 (1987). The judge did not abuse her discretion by abating rent by twenty percent from December, 2014 as damages for the breach of the warranty of habitability. See Kelly v. Jones, 80 Mass. App. Ct. 476, 478 (2011) (affirming determination that failure to provide locks and failure to completely repair kitchen ceiling was breach of warranty of habitability and "reduced the value of the premises by forty percent from the inception of the lease through the date of trial").
The judge was not required to give particular weight to the inspection statement signed by the tenants prior to the tenancy.
The letter is dated one week before the tenants moved in. The landlord never obtained the necessary letter of compliance.
We reject the landlord's separate argument that the judge erred by awarding (and, because of violations of G. L. c. 93A, trebling) damages for breach of the implied warranty of habitability for months when rent was "never paid." The measure of damages for the breach of the warranty of habitability is "the difference between the value of each apartment as warranted and the rental value of each apartment in its defective condition." Hemingway, 363 Mass. at 203. Although the tenants last paid rent for October, 2017, the amended judgment credited the defendant (i.e., decreased the amount of damages owed) for rent owed by the tenants for the remaining months. Those credits and the advance payment of last month's rent more than negate the landlord's concern that the damages included impermissible "double dip[ping]."
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2. Breach of the covenant of quiet enjoyment. "A landlord violates G. L. c. 186, § 14, when its ‘acts or omissions impair the value of the leased premises.’ " Jablonski, 60 Mass. App. Ct. at 476, quoting Cruz Mgt. Co. v. Thomas, 417 Mass. 782, 789 (1994). "A landlord's failure to provide heat during heating season ... seriously impairs the character and value of the leased premises ... and constitutes a breach of the covenant of quiet enjoyment" (quotations and citations omitted). Lowery v. Robinson, 13 Mass. App. Ct. 982, 982 (1982).
In this case, damages for breach of the covenant of quiet enjoyment were based on the judge's finding that the tenants were without heat "during part of the month of January." Contrary to the landlord's argument, the trial judge's implicit finding of at least negligent conduct was supported by evidence suggesting that the landlord responded to the tenants' complaints on January 5, 2018, by making his own ineffectual attempts to repair the problem, and that it was not fixed until several days later at which time, pursuant to an order of the Housing Court, an independent HVAC company was hired to inspect the system and found it to be functioning on January 11, 2018. Cf. Manzaro v. McCann, 401 Mass. 880, 885 (1988) ("The ringing for a day of an alarm which, we infer, was adequate to alert a sleeping tenant in the event of fire cannot be said as a matter of law never to be sufficient interference to justify relief under § 14").
3. Violation of G. L. c. 186, § 15B (2) ( a ). There is no merit to the landlord's argument that interest was not required to be paid on last month's rent. The advance of the last month's rent payment was not deposited in a bank. Therefore, the five percent interest rate was applicable. See G. L. c. 186, § 15B (2) (a ). See also Karaa v. Yim, 86 Mass. App. Ct. 714, 724 (2014).
4. Appellate attorney's fees. The tenants' request for appellate attorney's fees under G. L. c. 186, § 14, and G. L. c. 93A, § 9, is allowed. Within fourteen days of the date of this decision, the tenants shall submit a statement of appellate attorney's fees, with appropriate supporting materials, in accordance with the procedure specified in Fabre v. Walton, 441 Mass. 9, 10-11 (2004), and within fourteen days thereafter, the landlord may submit an opposition to the amounts requested.
Conclusion. The judgments entered May 9, 2018, and June 11, 2018, are affirmed.
So ordered.
Affirmed.