Boston Housing Authority v. Hemingway, 293 N.E.2d 831 (1973)

Citation: Boston Housing Authority v. Hemingway, 293 N.E.2d 831 (1973)
Parent Document: Boston Housing Authority v. Hemingway, 293 N.E.2d 831 (1973)
Jurisdiction: Massachusetts (state)
Effective Date: 1973-03-05
Original Source: https://www.courtlistener.com/opinion/2000597/boston-housing-authority-v-hemingway/ ↗

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Implicit in the trial judge's decision was the assumption that the tenants had no common law defence. The trial judge correctly applied the common law as it has existed in the Commonwealth for many years in refusing to permit the tenants to raise the landlord's alleged breach of an implied warranty of habitability as a defence to the landlord's summary process action. "There *188 is no implied agreement, apart from fraud, that the demised premises are or will continue to be fit for occupancy or safe and in good repair. The tenant takes the premises as he finds them and there is no obligation on the landlord to make repairs." Fiorntino v. Mason, 233 Mass. 451, 452. Although the Fiorntino case involved a tenancy at will, the language applies equally to a tenancy under a lease, absent any express provisions to the contrary. Since the leases between the landlord and the tenants in the present cases do not contain any express covenant to deliver or maintain the apartments in habitable condition, the tenants do not have any common law defence to the landlord's action of summary process unless we change the old common law independent covenants rule as the tenants urge us to do. The tenants' challenge to our common law rule of independent covenants has led us to reconsider whether the historical source and justifications for the rule are still valid in the modern context.

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