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.
The Superior Court judge found there was insufficient evidence to conclude that the landlord acted intentionally,
In Boston Hous. Auth. v. Hemingway, 363 Mass. 184 (1973), we found that social changes in landlord-tenant relations
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.
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,
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. A dwelling afflicted with a substantial Sanitary
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.
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
This argument assumes that tenants will frequently enforce the rent abatement remedy or that landlords will spend a great deal of money on preventive maintenance. Yet empirical evidence tends to show a very low rate of tenant enforcement. Abbott, Housing Policy, Housing Codes and Tenant Remedies: An Integration, 56 B.U.L. Rev. 1, 63 (1976). Hirsch, Hirsch & Margolis, Regression Analysis of the Effects of Habitability Laws Upon Rent: An Empirical Observation on the Ackerman-Komesar Debate, 63 Calif. L. Rev. 1098, 1130 (1975). A study has failed to find a statistically significant relationship between the presence of most habitability laws, including rent abatement, and increased rents. Hirsch, Hirsch, & Margolis, supra at 1130-1132. In addition, we question the virtue of relying on a theory of economic efficiency at the expense of legal analysis. Precedent, legislative policy, and common law principles support the result we reach today. See Michelman, Norms and Normativity in the Economic Theory of Law, 62 Minn. L. Rev. 1015, 1015 (1978) ("[W]ell-conducted, systematic, convincing, behaviorally focused research can entrap as well as liberate, can help engender as well as dispel false belief about social reality, insofar as it invites the reduction of reality to observed regularities of behavior").
Crowell left open a second question as well. "[W]e think the jury would have been warranted in finding that the landlord, by the exercise of reasonable care, ... could have brought the premises into compliance. We do not pass on the question whether such a finding is essential to liability." Crowell v. McCaffrey, supra at 452. Whatever standard of liability for personal injury under a theory of breach of warranty is appropriate, however, the tenant's right to abate rent in the present case arises from mutual obligations, not from an interest in freedom from harm. See W. Prosser, Torts § 92 (4th ed. 1971).
Amicus Real Estate Board presses an analogy based on G.L.c. 106, § 2-508 (2) of the Uniform Commercial Code, as appearing in St. 1957, c. 765, § 1: "Where the buyer rejects a non-conforming tender which the seller had reasonable grounds to believe would be acceptable with or without money allowance the seller may if he seasonably notifies the buyer have a further reasonable time to substitute a conforming tender." The argument that the landlord has a comparable right to cure fails on two grounds. First, the seller may cure only if the buyer rejects or, arguably, revokes acceptance of the goods. Here the tenant did neither. By not vacating her apartment, she accepted the goods, then sought damages under the warranty. In that circumstance, § 2-508 (2) does not afford a right to cure. See, e.g., Bonebrake v. Cox, 499 F.2d 951, 957 (8th Cir.1974).
Second, the amicus relies on the statement of official Comment 2 that "reasonable grounds can lie in prior course of dealing, course of performance or usage of trade...." Here the landlord appears to have proceeded in a responsible manner consistent with landlords' trade usage. However, the State Sanitary Code, not such usage, provides the proper yardstick for measuring the landlord's conduct. The Hemingway court removed the landlord's duties under the Code from the realm of private ordering. Boston Hous. Auth. v. Hemingway, supra at 199. Those duties cannot be waived, bargained away, or qualified by customary practice. The Code puts the landlord on notice that it must supply adequate heat and hot water. State Sanitary Code, Art. II, Regulations 5, 6 (1969) (current version at 105 Code Mass. Regs. 410.190, 410.200, 410.201). The landlord can have no reasonable grounds to believe that noncompliance will be acceptable.
First, we note that the language quoted appears in a version of the State Sanitary Code not in effect at the time of events in this case. See 67 Mass. Reg. 21 (effective Aug. 1, 1977). The version in effect in 1976 required the enforcing agency to "allot a reasonable time for any action [the order] requires." State Sanitary Code, Art. II, Regulation 33.4 (b) (1969). The 1977 amendment changed the "reasonable time" requirement to a specific time limit. State Sanitary Code, 105 Code Mass. Regs. 410.830. For a failure to provide heat, the Code now requires that the board of health, within twelve hours of the inspection, shall order the landlord to make a good faith effort to correct the violation within twenty-four hours. Id. at 410.830 (A) (2). We believe that this change indicates dissatisfaction with the vagueness of the term "reasonable time."
Second, even though the Code has consistently provided some grace period during which the landlord may attempt to comply, there is a distinction between the Code's criminal penalty and the rent abatement at issue here. The landlord "violates" the Code by failing to comply. State Sanitary Code, Art. II, Regulation 1 (1969) (currently codified in 105 Code Mass. Regs. 410.044). Only the penalty is delayed during the grace period. And under the new version of the Code, every enforcement order must be accompanied by notice to the landlord that "the conditions which exist may permit the occupant ... to exercise one or more statutory remedies." State Sanitary Code, 105 Code Mass. Regs. 410.832 (B) (6). We read the Code to imply that civil remedies for violations are available during the landlord's time to repair. This result is consistent with the 1977 amendment to G.L.c. 239, § 8A.