Berman & Sons, Inc. v. Jefferson

• Decision Date: 08 November 1979
• Citation: Berman & Sons, Inc. v. Jefferson, 396 N.E.2d 981, 379 Mass. 196 (Mass. 1979)
• Parties: BERMAN & SONS, INC. v. Cynthia JEFFERSON.
• Court: Supreme Judicial Court of Massachusetts

Page 981

396 N.E.2d 981

379 Mass. 196

BERMAN & SONS, INC. v.Cynthia JEFFERSON.

Supreme Judicial Court of Massachusetts, Essex.

Argued Sept. 14, 1979.

Decided Nov. 8, 1979.

Mitchel S. Ross, Boston, for plaintiff.

Joseph S. Murphy, Boston, for defendant.

Philip S. Lapatin, Boston, for Greater Boston Real Estate Bd., amicus curiae, submitted a brief.

Susan C. Cotter, Springfield, Richard C. Allen, Boston, Gary Bellow, Jamaica Plain, Barbara Hayden Fitts, Hyannis, Marc Lauristan, Worcester, Bella Schnall, Northampton, Carole Wagan, Peabody, Albert W. Wallis, Quincy, and James H. Wexler, Dorchester, for a coalition of legal assistance groups, amicus curiae, submitted a brief.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, LIACOS and ABRAMS, JJ.

LIACOS, Justice.

Cynthia Jefferson(tenant) leased for one year, beginning March 1, 1976, at $245 a month an apartment in Peabody from Berman & Sons, Inc.(landlord).From late August until October 8, 1976, a series of breaks in underground heating pipes caused the tenant to receive intermittent heat.The landlord repaired each leak promptly.On October 8, the pipe burst completely and the tenant was without heat until the pipe was repaired on October 20.Furthermore, from time to time, the apartment was without adequate hot water.These failures continued sporadically through June, 1977.The tenant withheld $35 from her November, 1976, rent.The landlord returned the check and in January, 1977, brought an action for summary process in the District Court of Peabody.The tenant answered and counterclaimed, alleging, inter alia, breach of the implied warranty of habitability.The judge denied the landlord's claim for possession and awarded the tenant $310 damages.In February, 1977, the landlord appealed to the Superior Court which heard the case on written stipulations.On October 23, 1978, the judge entered findings of fact, conclusions of law, and an order awarding the tenant $310 for breach of the warranty of habitability.The landlord appealed from the judgment.We granted the landlord's application for direct appellate review.We affirm the judgment.¹

The Superior Court judge found there was insufficient evidence to conclude that the landlord acted intentionally, negligently, or in bad faith.²He found and ruled that the losses of heat and hot water were material breaches of the warranty of habitability.The judge ruled further that the tenant is allowed to abate the rent from the date the landlord had notice of the breach of the warranty of habitability.We must decide (1) whether a tenant must pay full rent without abatement when the landlord, acting without fault or bad faith, fails to maintain a dwelling in habitable condition and (2) whether the tenant's obligation to pay full rent persists until the landlord has had a reasonable time to repair the defect.We hold that the tenant's obligation abates as soon as the landlord has notice that premises failed to comply with the requirements of the warranty of habitability.The landlord's lack of fault and reasonable efforts to repair do not prolong the duty to pay full rent.

In Boston Hous. Auth. v. Hemingway, 363 Mass. 184, 293 N.E.2d 831(1973), we found that social changes in landlord-tenant relations ³ and legislative changes in landlord obligations and tenant remedies ⁴ were inconsistent with medieval notions of the lease as a conveyance of property.The changes in social and legal circumstances changed the parties' expectations.It was in this context that we chose to recast our theory of the landlord-tenant relationship in a form congenial with the Legislature's tendency: "(A) lease is essentially a contract between the landlord and the tenant wherein the landlord promises to deliver and maintain the demised premises in habitable condition and the tenant promises to pay rent for such habitable premises.These promises constitute interdependent and mutual considerations.Thus, the tenant's obligation to pay rent is predicated on the landlord's obligation to deliver and maintain the premises in habitable condition."Id. at 198, 293 N.E.2d at 842.We held that a tenant is entitled to rent abatement, in whole or in part, during the period that an apartment remains uninhabitable after the landlord has notice of the defects.⁵Id. at 203, 293 N.E.2d 831.

The landlord argues that, on the present facts, he has done no wrong.He argues that to impose strict liability would penalize the landlord who is acting reasonably and would impose a duty impossible to meet.Moreover, he claims the expectations of the parties support the landlord's position.Both landlord and tenant expect less than perfect upkeep of apartments; systems break down; maintenance takes time; the law should reflect this reality.⁶Furthermore, Berman contends, the purpose of the warranty is "to provide tenants with a mechanism to encourage the repair of serious and dangerous defects" connected with a residential dwelling unit or the common areas.This purpose can be achieved without imposing strict liability on landlords.

These contentions have no place in the framework established in Hemingway.Considerations of fault do not belong in an analysis of warranty.Nowhere does the landlord point us to an analogous body of warranty law that incorporates a fault standard, ⁷ nor has Berman persuaded us to make an exception here.The landlord may be correct in characterizing itself as an innocent party, and we are cognizant of the economic burdens that a landlord typically bears.⁸Nevertheless, we note that the landlord's liability without fault is merely an economic burden; the tenant living in an uninhabitable building suffers a loss of shelter, a necessity.More importantly, the warranty of habitability is not designed to penalize the landlord for misbehavior.In the rent abatement context, the doctrine imposes a duty quite apart from notions of moral sanction or deterrence.⁹

The landlord would have us avert our eyes from the clear teaching of Hemingway : "(T)he essential objective of the leasing transaction is to provide a dwelling suitable for habitation."Boston Hous. Auth. v. Hemingway, supra at 196-197, 293 N.E.2d at 841.A dwelling afflicted with a substantial Sanitary Code violation is not habitable.The essential objective of the warranty is to make sure that the tenant receives what she is paying for.The tenant may not excuse her obligation with mere reasonable efforts to pay rent.Nor may the landlord avoid his duty with mere reasonable efforts to provide a habitable dwelling.The contract between the parties, seen through the law's clarifying lens, requires such symmetry.

The landlord argues that the existence of a serious defect in an apartment is a potential breach of the warranty; the breach becomes actual only after the landlord has been notified of the defect and has had a reasonable time to repair.¹⁰In Hemingway, however, we set out a very different picture of the warranty: "(The warranty) means that at the inception of the rental there are no latent (or patent) defects in facilities vital to the use of the premises for residential purposes and that these essential facilities will remain during the entire term in a condition which makes the property livable."Boston Hous. Auth. v. Hemingway, supra at 199, 293 N.E.2d at 843, quoting fromKline v. Burns, 111 N.H. 87, 92, 276 A.2d 248(1971).Neither at the inception nor during the term of the lease did we leave room for a reasonable time to repair.¹¹Admittedly a tenant must notify her landlord of defects as a prerequisite to a rent abatement, ¹² but the purpose of this requirement is not to assure the landlord a reasonable time to repair.The requirement is designed to minimize the time the landlord is in breach and hence mitigate the permissible period of abatement of rent.The rent abatement begins when notice is given, not at a reasonable time after notice.Time for repairs has no place in the calculus.¹³

Our position follows as a corollary of Hemingway.However, Hemingway is not the only source of guidance for rejecting the landlord's theory.When the tenant's loss of heat occurred, G.L. c. 239, § 8A, permitted the tenant to withhold rent for Code violations only if "the owner . . . had not taken reasonable steps to remedy such conditions."St.1973, c. 471.In 1977, the Legislature struck this provision.St.1977, c. 963.The tenant may now withhold rent without considering whether the landlord is at fault or is taking reasonable steps to repair.As was the case in Hemingway, this statute provides for rent withholding, not rent abatement; but, as in Hemingway, we choose to permit a rent abatement as a matter of common law.¹⁴We consider the result we reach here to be consistent not only with Hemingway, but also with the law dealing with breach of warranty and with express legislative policy.

Judgment affirmed.

1We have been aided in our consideration of the issues raised by this appeal by amicus briefs filed by the Greater Boston Real Estate Board and a coalition of legal assistance groups led by the Housing Allowance Project, Inc., and the Massachusetts Law Reform Institute.

2The landlord and the tenant disagree as to whether the landlord effected repairs within a reasonable time after learning of the defect, and the trial judge made no finding.For the purposes of argument, however, we assume that the landlord did accomplish the repairs within a reasonable time.

3We noted that the factual assumptions underlying the common law exception of Ingalls v. Hobbs, 156 Mass. 348, 31 N.E. 286(1892), had come to describe the rule: "Modern tenants rightfully expect that the premises they rent . . . will be suitable for occupation."Boston Hous. Auth. v. Hemingway, 363 Mass. 184, 197, 293 N.E.2d 831, 841(1973).And we quoted the decision in Javins v. First Nat'l Realty Corp., 138 U.S.App.D.C. 369, 428 F.2d 1071, 1078-1079(D.C. Cir.1970), which...