Wesson v. Leone Enterprises, Inc., 437 Mass. 708 (2002)

Citation: Wesson v. Leone Enterprises, Inc., 437 Mass. 708 (2002) 4.
Parent Document: Wesson v. Leone Enterprises, Inc., 437 Mass. 708 (2002)
Jurisdiction: Massachusetts (state)
Effective Date: 2002-09-09
Original Source: https://www.courtlistener.com/opinion/6578571/wesson-v-leone-enterprises-inc/ ↗

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4. Application of the dependent covenants rule. At common law, covenants in leases were considered “independent, in the absence of clear indications to the contrary, and the lessee [was] relieved from performance of his covenants only by actual or constructive eviction.” Barry v. Frankini, 287 Mass. 196, 201 (1934). See Restatement (Second) of Property (Landlord and Tenant) Introductory Note to c. 7 (1977) (“At old common law *716the promises made by a landlord in a lease were independent obligations, so that the failure of the landlord to perform them did not give the tenant any right to disregard his obligations under the lease”). The independent covenants rule applied to both residential and commercial leases and was based on the assumption that “a lease is primarily a conveyance of an interest in real estate,” Boston Hous. Auth. v. Hemingway, 363 Mass. 184, 194 (1973), and “reflected the parties’ expectations in a rural agrarian society where the right to possession of the land constituted the chief element of the exchange.” Id. at 189. “The theory of a lease as a conveyance . . . fitted in well with the ancient farm lease. The lease was essentially of land; the house was incidental. Tenant got no services from landlord and expected none. Tenant was there, landlord absent. Tenant had tools that he was well versed in using. He could make such repairs as might be necessary.” 1 M.R. Friedman, Leases § 1.1 at 5-6 (4th ed. 1997). As a result, “[e]yen if the landlord made express maintenance promises in the lease, courts often held that the landlord’s breach of these ‘secondary’ obligations did not affect the tenant’s obligation to pay rent.” Boston Hous. Auth. v. Hemingway, supra. This apparent unfairness was balanced under the same doctrine by the inability of the landlord to recover possession of his property from a tenant even if the tenant breached its covenant to pay rent. Both lessor and lessee were limited in their remedies to seeking damages for breach of the lease covenants. See Note, Modernizing Commercial Lease Law: The Case for an Implied Warranty of Fitness, 19 Suffolk U.L. Rev. 929, 934 (1985). Any equilibrium that may have existed in this application of the rule was lost with the enactment of statutory dispossession actions, permitting landlords to regain possession of the premises if the tenant failed to pay rent even though the landlord may have breached express covenants within the lease. See, e.g., G. L. c. 186, § 11 (landlord entitled to recover possession on neglect or refusal to pay rent due under written lease).18

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