Altschuler v. Boston Rent Bd.

• Decision Date: 22 September 1981
• Citation: 12 Mass.App.Ct. 452,425 N.E.2d 781
• Parties: Arthur ALTSCHULER et al., trustees, v. BOSTON RENT BOARD et al. 1
• Court: Appeals Court of Massachusetts

Page 781

425 N.E.2d 781

12 Mass.App.Ct. 452

Arthur ALTSCHULER et al., trustees, v. BOSTON RENT BOARD et al. ¹

Appeals Court of Massachusetts, Suffolk.

Argued Feb. 12, 1981.

Decided Sept. 22, 1981.

John H. Henn, Boston (Sheldon M. Drucker, Boston, with him), for plaintiffs.

Russell Fanara, Boston, for Boston Rent Bd.

Edward Rabinovitz, Boston (R. Brooks Sherman, Boston, with him), for tenants of Sargent-Towne Estates.

Before GRANT, BROWN and GREANEY, JJ.

BROWN, Justice.

The trustees of Sargent-Towne Estates Trust (landlord) brought these actions to review orders of the Boston Rent Board (board) which denied general adjustments in the maximum rents for 352 controlled apartments owned by the landlord. The Boston Housing Court affirmed the orders of the board. We affirm the judgments of the Housing Court.

Sargent-Towne Estates is an apartment complex in Brighton which consists of eighty-eight small buildings containing four units each. In August and September, 1976, the Boston building department issued citations which notified the landlord that the main common entry doors of all buildings were not equipped to "close and lock automatically," in violation of G.L. c. 143, § 3R. ² On October 8, 1976, the landlord appealed these citations to the State Building Code Appeals Board (Appeals Board) on the ground that G.L. c. 143, § 3R, did not apply to these buildings because they were constructed before its effective date. However, this appeal was withdrawn on November 12, 1976, for reasons not stated in the record.

On November 24, 1976, the Boston Rent Board ordered a general adjustment increasing maximum rents for all controlled units, and on December 16, 1976, the board promulgated Regulation 11 to implement that order. "Regulation 11" provided that the adjustment would be effective January 1, 1977 (§ 12(D)) but that landlords would hold in escrow the amount of rents attributable to the increase until February 28, 1977 (§ 3(C)). It further provided that the adjustment would be "subject to the ... condition ..." that "(a)s of January 1, 1977, the building ... shall comply with all laws governing conditions of habitability" (§ 5(A)(3)), and that if this condition were not met, "the landlord shall not be entitled" to the adjustment (§ 5(B)(1)) and that the board could order the landlord to refund to tenants any increase already collected (§§ 5(B)(2), 6(A)(1)(b)).

On January 18, 1977, tenants of Sargent-Towne Estates filed an affidavit opposing the adjustment, see § 6(A)(1)(a), on the ground that the buildings were in violation of G.L. c. 143, § 3R. After several hearings on the matter, the board's hearing officer found that there were no locks on the main common entry doors of any of the buildings, and that the Boston building department had determined those conditions to be in violation of G.L. c. 143, § 3R. On June 23, 1977, the board ruled that the buildings were not in compliance with all laws governing habitability, as required by Regulation 11, § 5(A)(3). Since the adjustment had been conditioned on such compliance, the board ordered the increase rescinded as to all units until such time as the landlord remedied the violations and obtained a certificate of compliance under § 9 of Regulation 11. In addition, the board ordered the landlord to refund to tenants the amounts held in escrow for the increase. At the request of the landlord, however, the board stayed its orders pending a decision by the Appeals Board on a renewed appeal which the landlord had filed on May 17, 1977.

The Appeals Board held a public hearing on the issues raised by the landlord and thereafter obtained an opinion from the Attorney General, regarding the applicability of G.L. c. 143, § 3R. On February 15, 1978, the Appeals Board adopted that opinion and ruled that the statute applies to all buildings containing the requisite number of apartments, including those constructed prior to its effective date. The Appeals Board also ruled that the statute does not require electric striker mechanisms on main common entry doors but requires only that such doors close and lock automatically. ³ However, due to difficulties presented by the "unique configuration" of these buildings, the Appeals Board granted a waiver of this requirement, as permitted by the statute, on the condition that the landlord install specified alternative systems which the Appeals Board found adequate to protect the tenants.

Following this decision, the landlord requested the board to vacate its prior order denying the general adjustment. After hearing, the board's hearing officer found that the landlord had installed neither locks nor any of the systems required as a condition of the Appeal Board's waiver. The hearing officer also construed the waiver to be prospective only. On March 23, 1978, the board confirmed its order denying the rent increase and dissolved its prior stay of that order, thus requiring the landlord to refund the amounts already paid into escrow for the increase. The board ordered that rents be paid at the levels existing prior to the general adjustment until the landlord installed the systems required by the waiver and obtained a certificate of compliance from the board. It appears, however, that the landlord ultimately chose not to install those systems and installed locks with electric striker mechanisms instead. On June 22, 1978, after hearing and inspection, the board issued a certificate of compliance on these buildings and granted the general adjustment, effective July 1, 1978.

On review in the Housing Court, the landlord challenged the board's denial of the adjustment for the period January 1, 1977, to July 1, 1978. ⁴ The tenants moved for summary judgment, and the board supported that motion. All three parties submitted documents and memoranda of law in support of their positions, but none of the parties submitted affidavits as permitted by Mass.R.Civ.P. 56(a), 365 Mass. 824 (1974). Treating the motion as presenting only issues of law, the court granted summary judgment and affirmed the board's orders. The landlord then took this appeal.

1. The landlord's principal argument in the trial court was that G.L. c. 143, § 3R, is not a law "governing conditions of habitability" within the meaning of Regulation 11, § 5(A)(3). In support of this argument, the landlord first points out that the statute was not incorporated in the State Sanitary Code on January 1, 1977, the operative date of the regulation. ⁵ However, G.L. c. 143, 3R, had at that time long been incorporated in the State Building Code, ⁶ and that is sufficient to bring it within the scope of the implied warranty of habitability.

Recent opinions of the Supreme Judicial Court have made clear that the warranty includes, as a minimum, not only the requirements of the Sanitary Code but also those of the Building Code. Crowell v. McCaffrey, 377 Mass. 443, 451, 386 N.E.2d 1256 (1979). Berman & Sons v. Jefferson, --- Mass. ---, --- n.9, ^a 396 N.E.2d 981 (1979). See also Boston Housing Authy. v. Hemingway, 363 Mass. 184, 207-208, 210, 218, 293 N.E.2d 831 (1973) (Quirico, J., concurring in part and dissenting in part). We therefore conclude that G.L. c. 143, § 3R, is a law "governing conditions of habitability," at least insofar as it is incorporated in the State Building Code. ⁷

The landlord's next argument is based on the Housing Court's finding that "while the apartments were not rendered uninhabitable certainly habitability was in fact affected." The landlord suggests that since the absence of the locks required by G.L. c. 143, § 3R, did not render the apartments uninhabitable, the statute is not a law "governing conditions of habitability." We disagree.

"Habitability" is a term of art, and an apartment need not be literally uninhabitable to be in violation of the implied warranty. The revised Sanitary Code, see note 5 supra, draws a distinction between a condition which makes a unit "unfit for human habitation" (defined as a condition justifying condemnation), 105 Code Mass.Regs. § 410.022 (1978), and a condition which "may endanger or materially impair the health or safety and wellbeing of an occupant" (defined as a condition which may expose those interests to harm), 105 Code Mass.Regs. § 410.023 (1978). The latter condition is sufficient to violate the warranty of habitability. Boston Housing Authy. v. Hemingway, supra, 363 Mass. [12 Mass.App.Ct. 458] at 200 n.15, 293 N.E.2d 831 (proof that "Code violations exist which 'may endanger or materially impair ...' would constitute evidence of a material breach ..."). See also id. at 200 n.16, 293 N.E.2d 831. An apartment need not be totally uninhabitable before the implied warranty is violated. See id. at 202, 293 N.E.2d 831 (material breach may result in either "partial or complete" abatement of rent); McKenna v. Begin, 5 Mass.App. 304, 310-311, 362 N.E.2d 548 (1977) (adopting rule of damages based on percentage impairment of use). Thus, it is properly said that "(a) dwelling afflicted with a substantial Sanitary Code violation is not habitable," in the sense that it is not in compliance with the warranty, Berman & Sons v. Jefferson, supra at ---, ^b 391 N.E.2d 981, even though the breach is not so severe as to abate the rent to zero, see McKenna v. Begin, supra at 313, 362 N.E.2d 548. (Brown, J., concurring), or force the tenant to vacate, see Boston Housing Authy. v. Hemingway, supra at 199-200, 293 N.E.2d 831.

Likewise, a statute which fixes minimum requirements for residential premises may have a direct and significant bearing on habitability even though a violation of the statute does not render the premises totally uninhabitable. Here, the Housing Court found that "certainly habitability was in fact affected" by the violations of G.L. c. 143, § 3R. ⁸ We cannot say that this finding is clearly erroneous. ⁹ Mass.R.Civ.P. 52(a), 365 Mass. 816 (1974). Perez v. Boston Housing Authy., --- Mass. ---, ---, ^c 400 N.E.2d 1231...