Breach of the Covenant of Quiet Enjoyment and Constructive Eviction

As she looked at the exposed brick, high ceilings and massive windows of her new loft apartment, Jen could hardly believe her good fortune.  Located on the second floor of a converted mill building, the loft was in a trendy neighborhood populated by artists (and those who thought they were artists).  Her first floor neighbor was a small Italian bistro that shut down by 10:00 p.m. each night.  The situation seemed ideal and for a while it was.

Some months later, everything changes.  First, a mechanical problem interrupts the heat to her apartment.  Jen notifies the landlord who immediately takes steps to fix the problem.  Nevertheless, the heat remains off for two cold January days.

Next, the bistro closes and is replaced by a new tenant: a bar offering live music every night until 2:00 a.m.  While Jen likes music, she prefers not to listen to it through her floor in the wee hours of the morning.  Nor does she find interesting the drunken arguments which routinely take place on the sidewalk directly below her windows.

After a week of sleepless nights, Jen complains to her landlord.  However, the landlord claims to have no control over the bar or responsibility for the noise.  The landlord also points out that, in her lease, Jen expressly waives any claim against the landlord for failure to supply utilities or for interference with her use of the premises.

Jen wants the noise to stop, but does not want to move out and lose her dream apartment.  She considers suing the landlord both for the interruption in heat and the excessive noise.  Does she have any recourse?

Although the landlord most likely is not liable for the temporary lack of heat, Jen is probably entitled to damages for the landlord’s interference with her enjoyment of the loft due to the noise created by the bar.  She will also be entitled to an injunction prohibiting the landlord and the bar from continuing to interfere with her use of the apartment.

A.     Statutory protection.

Massachusetts G.L. c. 186, §14, states, in relevant part:

Any lessor or landlord of any building … occupied for dwelling purposes … who is required by law or by the express or implied terms of any contract or lease or tenancy at will to furnish water, hot water, heat … to any occupant …, who willfully or intentionally fails to furnish such water, hot water, heat … at any time when the same is necessary to the proper or customary use of such building …, or any lessor or landlord who directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant …, shall be punished by a fine … or by imprisonment…. Any person who commits any act in violation of this section shall also be liable for actual and consequential damages or three month’s rent, whichever is greater, and the costs of the action, including a reasonable attorney’s fee….

 B.     The lease provision waiving the statute’s protections is unenforceable.

Even if Jen agreed in her lease not to hold the landlord responsible for failure to supply utilities or for interference with her use of the premises, those provisions are unenforceable.  Section 14 provides:

Any waiver of this provision in any lease or other rental agreement, except … for interruptions of any specified service during the time required to perform necessary repairs to apparatus necessary for the delivery of said service or interruptions resulting from natural causes beyond the control of the lessor or landlord, shall be void and unenforceable.

Thus, Jen has not waived her claims against the landlord.

C.     The failure to provide heat.

By its terms, §14 imposes liability for failure to deliver heat only when the landlord’s conduct is willful or intentional.  “A landlord may be found to have acted willfully and/or knowingly if he fails, after notice to supply the essential service or rectify the problem with same.”[1]  In Flynn, there was a water pressure problem.  Although the tenant was deprived of adequate water service for an extended period (four weeks), the Court held that the landlord was not liable under §14 because he had made prompt and reasonable efforts to solve the problem. The Court stated:

Shortly after moving in, plaintiff began to have problems with the water pressure. He had water sporadically throughout the day for about twenty minute intervals. The rest of the time there was no water. Plaintiff notified the defendant of this problem and immediately the defendant notified a well digger who came to assess the problem. Defendant hired a well digger and dug a trench himself to help facilitate the installation of the new well. It took about three to four weeks for the new well to be completed and hooked up to the house. Plaintiff was without adequate water for about four weeks. Defendant, upon notification by the plaintiff, took reasonable steps to have the water problem corrected, and it was, in fact, corrected.

***

… Finding that the defendant’s temporary failure to supply adequate water was neither willful or intentional, the Trial Judge entered judgment for the defendant. We affirm.

Id.  (Emphasis added).  In Jen’s case, the landlord’s conduct was not willful or intentional.  The landlord took immediate steps to fix the lack of heat, and the problem was, in fact, remedied within two days.  Therefore, the landlord is not liable for the lack of heat.

D.     The Noise.

Jen will likely prevail on her claim that the excessive noise from the bar interfered with her quiet enjoyment of her apartment and constituted a constructive eviction.  Constructive eviction results from a breach of the landlord’s covenant to protect the tenant’s right to quiet enjoyment of the premises during the term of the lease.  “The covenant of quiet enjoyment protects a tenant’s right to freedom from serious interference with his tenancy–acts or omissions which impair the character and value of the leased premises.”[2]  While a breach of the covenant often arises from a landlord’s failure to provide services (heat, etc.), a breach can also result where the landlord undertakes repairs or alterations which interfere with the tenant’s use of the premises.[3]

Whether there is a breach of the covenant of quiet enjoyment depends, of course, on proof of the extent to which the landlord’s acts or omissions have actually interfered with the tenant’s reasonable use of the premises.  The interference must be “serious” and must “substantially impair” the value of the premises.[4]  A breach of the covenant of quiet enjoyment is sufficiently serious if it impairs the value of the leased premises.[5]

In order to establish a breach of the covenant of quiet enjoyment, the tenant must show some fault on the part of the landlord, amounting to at least negligence or unreasonable conduct.[6]  Thus, the tenant must prove that the landlord knew or had reason to know of the defective condition of the premises and unreasonably acted or failed to act despite such knowledge.  In Al-Ziab, the Court said:

[T]o obtain relief under §14 for a claim of lead paint poisoning it must be demonstrated that the landlord had notice of or reason to know of the presence of lead and failed to take appropriate corrective measures.[7]

It follows that, while there is no good faith defense to a quiet enjoyment claim[8], a landlord who acts to remedy a condition which interferes with quiet enjoyment immediately after receiving notice of the condition does not breach the covenant.[9]

Two issues raised by the facts of Jen’s case are whether she must have vacated the apartment to claim a constructive eviction and whether the landlord can be held liable for interference caused not by the landlord directly, but by another of the landlord’s tenants.  Although earlier cases required a tenant to actually abandon the premises in order to claim a constructive eviction, more recent case law makes clear that the tenant can remain on the premises and seek equitable relief and damages, for a breach of the covenant of quiet enjoyment/constructive eviction.[10]

Further, a landlord is responsible for the conduct of one tenant which interferes with another tenant’s use of his premises, if the landlord has the right to control the conduct of the interfering tenant.[11]

Jen should prevail because she can prove that the excessive noise is seriously interfering with her use of the apartment and, therefore, adversely affecting the value of the premises.  The landlord is responsible for the noise because the bar is a tenant and the landlord has some control over its conduct.  In Blackett, 371 Mass. 714, 358 N.E.2d at 819-20, the Supreme Judicial Court held a landlord liable for breach of covenant of quiet enjoyment where landlord rented first floor of residential apartment building to lounge, and lounge’s loud music interfered with other tenants’ residential uses.  The Court noted that landlord could control the lounge tenant and that the interference was the natural and probable result of the landlord renting to the lounge.

E.     Jen’s remedy.

Jen wants to stay in her apartment but to stop the noise.  If she establishes a constructive eviction, the Court should enter an injunction prohibiting the bar and the landlord from interfering with her quiet enjoyment of her apartment.

In addition, she will be entitled to recover damages for the interference which has already occurred.  Where a breach of the covenant of quiet enjoyment is established, the tenant is entitled to damages for all harm suffered as a result of that breach.  The Court in Simon v. Solomon, 385 Mass. 91 (1982), holding that emotional distress damages were available in an action for breach of the covenant of quiet enjoyment, stated:

Section 14 provides that tenants may recover “actual and consequential” damages from landlords who have interfered with their quiet enjoyment of leased premises…. The combination in §14 of both actual and consequential damages, therefore, suggests that the Legislature intended to include all reasonably foreseeable losses-personal as well as economic – within the scope of statutory recovery.

Section 10.2 of the Restatement (Second) of Property (Landlord-Tenant) also makes clear that damages for interference with quiet enjoyment cover all losses which are natural and probable consequences of the landlord’s conduct, including lost use of improvements previously paid for by the tenant, any cost to the tenant of eliminating the landlord’s default, and interest.

In Darmetko v. Boston Housing Authority, 378 Mass. 758 (1979), the Massachusetts Supreme Judicial Court discussed the measure of damages for breach of the covenant of quiet enjoyment where the tenant remains in possession:

Damages for breach of the covenant of quiet enjoyment where the tenant remains in possession of the premises are measured by the difference between the value of what the lessee should have received and the value of what he did receive.[12]

In determining the value of the premises in its defective condition, a court will consider “various factors including, but not limited to, the nature, duration and seriousness of defects and whether they may endanger or impair the health safety or well being of the occupants.”[13]  A court will take into account “the conduct of both parties” in setting damages.[14]

Finally, a violation of c. 186, §14, is a consumer protection violation under c.93A, potentially subjecting the landlord to double or treble damages.

Section 14 provides tenants like Jen with a potent weapon.  Its provisions relating to provision of utilities and, more generally, to quiet enjoyment, safeguard the tenant’s reasonable expectations, ensuring that the tenant has the opportunity to use the premises without undue interference by the landlord or other tenants.