McKenna v. Begin

• Decision Date: 11 May 1977
• Citation: 5 Mass.App.Ct. 304,362 N.E.2d 548
• Court: Appeals Court of Massachusetts

Page 548

362 N.E.2d 548

5 Mass.App.Ct. 304

Brian McKENNA v. Bernard BEGIN Appeals Court of Massachusetts, Franklin.

Argued Feb. 17, 1977.

Decided May 11, 1977.

Steven J. Schwartz, Northampton (James A. Bisceglia, Holyoke, with him) for plaintiff.

Before KEVILLE, GRANT and BROWN, JJ.

KEVILLE, Justice.

This case returns to us following its remand to the Superior Court for computation by the trial judge of the damages owed to a tenant by his landlord for breach of the implied warranty of habitability. Under that warranty principle, first fully elaborated in this Commonwealth in Boston Housing Authy. v. Hemingway, 363 Mass. 184, 293 N.E.2d 831 (1973), the judge had awarded damages to the plaintiff McKenna against his landlord, the defendant Begin, for violations of the State Sanitary Code ¹ in the latter's apartment building, as certified by the Greenfield board of health.

The judge recognized that according to the Hemingway case the measure of damages was to be the difference between the value of McKenna's apartment as warranted and the rental value of that apartment in its defective condition. However, in his application of that formula the judge calculated the damages by subtracting the rent agreed upon, which he took to be the rental value of the premises in their defective condition, from the rent paid for other apartments in the building, which the judge found to be the value of the premises as warranted.

We remanded the case (see MCKENNA V. BEGIN, --- MASS.APP. --- , 325 N.E.2D 587 (1975)^A) to the Superior Court for a further hearing for the proper computation of the damages based upon the formula established in the Hemingway case, supra, 363 Mass. at 203, 293 N.E.2d 831. In our earlier opinion, we held that the rent agreed upon could not be taken by the judge as evidence of the rental value of the premises in a defective condition but as the rental value of the premises as warranted to be habitable. Under the formula applied by the judge, rental of defective premises would be tantamount to a waiver of the landlord's implied obligation to let and maintain the premises in habitable condition and would amount to a waiver of the statutory provisions for the enforcement of the State Sanitary Code. ² McKenna, --- Mass.App. at --- ^b, 325 N.E.2d 587. While, following the Hemingway case, we did not attempt to furnish precise guidelines for the valuation of defective premises, we suggested that consideration be given to various factors including, but not limited to, the nature, duration and seriousness of the defects and whether they might endanger or impair the health, safety or well being of the occupants. McKenna, --- Mass.App. at --- ^c, 325 N.E.2d 587. We also ruled that damages were to be computed from the inception of the tenancy if it were shown that the defective conditions existed at that time. But, if the defects arose during the tenancy, damages were to be computed from the time when the landlord first knew or was notified of their existence. Id. at --- ^d, 325 N.E.2d 587.

On remand, the judge found that McKenna's tenancy started in June, 1972, when J. Steven Flynn, the original tenant, who had taken in McKenna as a cotenant, moved out and McKenna approached Begin with a view to continuing his occupancy of the apartment. Although the judge found that McKenna had been occupying the apartment with Flynn for some months prior to June, 1972, and had been paying half the rent to Flynn, he concluded that Begin's mere acquiescence in the arrangement did not make McKenna his tenant. In the absence of evidence of a specific earlier date on which McKenna and Begin reached an agreement making McKenna a tenant, the judge found that the tenancy began on June 25, 1972. Because he found that the major defects for which he awarded damages existed at the outset of the tenancy, he computed damages from that date. In this appeal McKenna argues that he is entitled to damages from the date on which he first occupied the apartment and he disputes the method employed by the judge in computing damages.

The judge determined that McKenna was not entitled to damages for several defects described by the board of health as minor violations of the code. ³ He estimated that the cost of repairing those defects which were found by the board to be major violations would have been $840, that is, $40 to repair three broken windows and $800 to install an adequate second means of egress from the apartment to the ground and an adequate electrical system. ⁴ He then calculated that if the $840 with interest were amortized over the anticipated remaining useful life of the building in which the apartment was located, the cost would be approximately $2 a week. The judge concluded that $2 a week represented the amount by which the rental value of McKenna's apartment was diminished for lack of those improvements. Consequently, he awarded $2 in damages to McKenna for each of the fifty-five weeks of his tenancy, or a total of $110.

We think the judge was correct in assessing damages only from June, 1972, when Flynn moved out and McKenna first spoke to Begin about continuing the tenancy alone. A tenancy at will cannot be created without the consent of both parties. Maguire v. Haddad, 325 Mass. 590, 593, 91 N.E.2d 769 (1950); Iorio v. Donnelly, 343 Mass. 772, 178 N.E.2d 28 (1961); Bruce v. Harvard Trust Co. 1 Mass.App. 373, 375, 298 N.E.2d 880 (1973). While there may have been implied consent by Begin to McKenna's joint occupancy of the apartment with Flynn, McKenna has not met his burden of proving that Begin agreed to accept McKenna as a tenant any earlier than June, 1972.

We also agree with the judge that McKenna is not entitled to receive damages for the minor code violations in this case. As we emphasized in our earlier opinion, not every defect gives rise to a diminution in rental value, and it has been held that isolated violations may be found not to constitute a breach of the warranty of habitability. Hemingway, 363 Mass. at 200--201, n. 16, 293 N.E.2d 831. Javins v. First Natl. Realty Corp., 138 U.S.App.D.C. 369, 428 F.2d 1071, 1082, n. 63, cert. den., 400 U.S. 925, 91 S.Ct. 186, 27 L.Ed.2d 185 (1970). On the other hand, there may be instances in which minor violations in conjunction with major violations or a multitude of minor violations with a cumulative effect on habitability should be taken into consideration in reducing rent. In all cases, however, the trial court is given broad discretion to determine whether defects constitute material breaches of the warranty of habitability. Hemingway, supra. It does not appear that the judge abused his discretion in deciding that the minor code violations in this case not be considered in determining the adjustment to which McKenna was entitled.

However, we disagree with his method of determining the damages attributable to major violations. Basically, he computed the damages by finding the fair rental value of the defective premises to be the agreed upon rent less the amortized cost of repairing the major code violations. Thus McKenna's damages became the cost of repairing the major defects amortized over the remaining useful life of the building. Rather than measuring the damages by amortizing the cost to begin of remedying the defects, we believe that the damages should have been calculated in a manner which more closely reflects the diminution in the value of McKenna's use and enjoyment of the premises. One of the established aims of determining damages for breach of contract is to put the injured party in the position he would have been in if performance had been rendered as promised. Ficara v. Belleau, 331 Mass. 80, 82, 117 N.E.2d 287 (1954); Concann v. Galanti, 348 Mass. 71, 74, 202 N.E.2d 236 (1964); Corbin, Contracts § 992 (1964). 22 Am.Jur.2d Damages § 46, at 73 (1965). It is true that in many contract cases involving defective performance the measure of damages is the reasonable cost of correcting remediable defects. DiMare v. Capaldi, 336 Mass. 497, 502, 146 N.E.2d 517 (1957), and Concannon, supra (both involving defects in construction of a house). Restatement of Contracts § 346 (1932). McCormick, Damages § 169 (1935). 22 Am.Jur.2d Damages § 49, at 78 (1965).

An assumption behind this general rule is that the party injured by the breach is in a position to pay to have the defects remedied. However, one of the bases for judicial acceptance of the warranty of habitability in residential leases is the realization that tenants, particularly low income tenants in multi-unit houses or apartment buildings, are usually not in a position to be able to authorize or afford the repair of serious code violations. Hemingway, 363 Mass. at 198, 293 N.E.2d 831, quoting from Javins, 428 F.2d at 1078--1079. See Academy Spires, Inc. v. Brown, 111 N.J.Super. 477, 484, 268 A.2d 556 (1970). It is unlikely that McKenna could have afforded $840 to remedy the major violations found in this case. Even if McKenna had availed himself of the provisions of G.L. c. 111, § 127L, inserted by St.1972, c. 799, and had withheld rent to make certain of the repairs, the statute at that time limited the withholdings to a total of two months' rent, which would have been less than $100 in this instance. ⁵

The judge's method of computing the damages could produce some anomalous results. For example, for the same defects a tenant in a new building would receive lower damages than a tenant in an older building because the cost of repairs would be amortized over the longer useful life of the new building. Similarly, with respect to defects affecting more than one tenant, tenants in a larger building would receive lower damages than tenants in a smaller one because repair costs would be divided among a greater number of dwelling units. It is our view that the damages for breach of the warranty of habitability with respect to a given living space should not be dependent on external factors such as the...