Apple D'Or Tree, Inc. v. Webster-Dudley Sand & Gravel, Inc., 24 Mass. L. Rptr. 49 (2008)

Citation: Apple D'Or Tree, Inc. v. Webster-Dudley Sand & Gravel, Inc., 24 Mass. L. Rptr. 49 (2008)
Parent Document: Apple D'Or Tree, Inc. v. Webster-Dudley Sand & Gravel, Inc., 24 Mass. L. Rptr. 49 (2008)
Jurisdiction: Massachusetts (state)
Effective Date: 2008-05-16
Original Source: https://www.courtlistener.com/opinion/8356824/apple-dor-tree-inc-v-webster-du... ↗

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The Supreme Judicial Court, however, did not adopt the Restatement’s second provision, which allows a tenant to withhold rent. By failing to adopt all the provisions of the Restatement, the Supreme Judicial Court specifically “limited the mle of dependent covenants in commercial leases,” to allow only termination of the lease, not rent withholding. Shawmut-Canton LLC v. Great Spring Waters of America, Inc., 62 Mass.App.Ct. 330, 338-39 (2004); see also Kinko’s Inc. v. Cummings Property, LLC, Civil No. 005438 (Mass.Super.Ct., Dec. 17, 2002) (Lauriat, J.) (landlord’s failure to obtain building permits as set forth in the lease agreement authorized tenant to terminate the lease). Only where the breach rises to *51the level of actual or constructive eviction is the tenant entitled to withhold rent. Wesson, 437 Mass. at 713, citing Shindler v. Milden, 282 Mass. 32, 33-34 (1933); see also Boston Hous. Auth., 363 Mass. at 186 (rent withholding allowed when leased premises are uninhabitable as long as statutory notice requirements are met). In contrast, the remedy for any breach of a covenant that was significant to the tenant’s entering into the lease is the right of the tenant to terminate the lease agreement. Wesson, 437 Mass. at 720 (emphasis added).

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