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DRAFT FOR ATTORNEY REVIEW — NOT FINAL

Lowery v. Robinson, 13 Mass. App. Ct. 982 (1982)

Citation
Lowery v. Robinson, 13 Mass. App. Ct. 982 (1982) 1.
Parent Document
Lowery v. Robinson, 13 Mass. App. Ct. 982 (1982)
Jurisdiction
Massachusetts (state)
Effective Date
1982-03-11

Full Text

2,120 chars
1. The tenant correctly argues that the judge erred in declaring that the landlords’ financial inability to purchase oil constituted a defense to the quiet enjoyment claim. A landlord’s failure to provide heat during the heating season (see State Sanitary Code, 105 Code Mass. Regs. §§ 410.201, 410.750 [B] [1980]) seriously “impair[s] the character and value of the leased premises” (Winchester v. O’Brien, 266 Mass. 33, 36 [1929], quoting from Brande v. Grace, 154 Mass. 210, 212 [1891]), and constitutes a breach of the covenant of quiet enjoyment. See generally Blackett v. Olanoff, 371 Mass. 714, 715-716 (1977), and cases cited. It is not necessary to recovery that the landlord intended to violate the covenant. Rather “the landlord’s conduct, and not his intentions, is control*983ling.” Blackett v. Olanoff, supra at 716. Thus, as suggested by the language of the statute itself (see Simon v. Solomon, 385 Mass. 91, 99-100 [1982]), liability will be imposed “whenever the ‘natural and probable consequence’ of [the] landlord’s action [is] interruption of the tenant’s rights.” Id. at 102, quoting from Westland Housing Corp. v. Scott, 312 Mass. 375, 381 (1942). Cf. Berman & Sons, Inc. v. Jefferson, 379 Mass. 196, 200-203 (1979). It is further established that “a tenant may bring an action for civil damages under G. L. c. 186, § 14, without first pursuing [that statute’s provisions for] criminal charges.” Simon v. Solomon, supra at 100. On the facts found by the judge, the tenant was entitled on the quiet enjoyment claim to (a) a declaration that the landlords had violated G. L. c. 186, § 14; (b) an injunction ordering that heat be provided in compliance with the State Sanitary Code without limitation on the amount to be spent by the landlords for fuel; and (c) an assessment of damages and counsel fees under § 14. Our holding on the quiet enjoyment claim renders it unnecessary to consider the tenant’s additional claim that the failure to provide heat was intentional. The tenant is limited to a single recovery for all the § 14 claims raised in the action. See Simon v. Solomon, supra at 110-111.