The plaintiffs appeal from an order of a judge in the Superior Court granting the defendant's motion for summary judgment. On appeal, the plaintiffs argue that the judge below improperly granted summary judgment on their four causes of action: (1) a statutory cause arising from G.L.c. 121B, §§ 32C and 32D (1992 ed.); (2) breach of the warranty of habitability: (3) breach of the covenant of
The relevant facts are these. The plaintiff Jane Doe is a tenant of the defendant New Bedford Housing Authority. She lives at the Shawmut Village public housing project in New Bedford, owned and operated by the defendant and consisting of 170 units in "two-story garden apartments." The plaintiff Jane Roe is also a tenant of the defendant. She lives at the Satellite Village public housing project in New Bedford, owned and operated by the defendant and consisting of 146 units in "two-story garden apartments."
Both housing developments are plagued by unlawful drug activity which occurs in external common areas of the developments. The record reflects that those persons involved in the drug activity on the premises are both tenants and nontenants. The record further reflects that the defendant has attempted, pursuant to a standard provision in its leases, to evict those tenants who are involved in drug activity. The record reveals little or no action on the part of the defendant to remove nontenants. Police patrols in the area are infrequent.
The plaintiffs assert that the crowds of people engaged in drug dealing are so large that the streets and sidewalks of the development are unusable and that the crowds create noise and disturbances and litter the premises with drug paraphernalia. In addition, the plaintiffs contend that pervasive atmosphere of crime prevents them from leaving their apartments at night, from allowing their children to play freely around the developments, and generally from living peacefully and enjoyably in their homes. Both plaintiffs have experienced threats and acts of violence perpetrated against them and their families which they characterize as retribution
The defendant moved for summary judgment and a judge in the Superior Court granted the motion. The plaintiffs appealed. We granted the plaintiffs' application for direct appellate review.
1. G.L.c. 121B, §§ 32C and 32D. The plaintiffs contend that the judge erred in granting summary judgment for the defendant on their claim under G.L.c. 121B, §§ 32C and 32D.
The plaintiffs characterize §§ 32C and 32D as a "statutory obligation to provide adequate security to ... tenants." However, the statutes clearly allow the landlord to file an action to enjoin the presence on the premises of a person engaged in certain unlawful conduct and also allow a tenant to file an action to require the landlord to bring such an action. Although the language of § 32D is clear that it "does not limit any existing nor create any new civil or criminal liability," the granting of summary judgment on the claim under c. 121B, §§ 32C and 32D, was improper because the plaintiffs asserted a valid claim in their complaint and the defendant did not meet its burden of showing absence of any genuine issue of material fact and entitlement to judgment as a matter of law. See Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974).
The plaintiffs alleged in their unverified complaint
The defendant also argues that the plaintiffs' failure to provide names of nontenants engaging in unlawful acts was fatal to the plaintiffs' c. 121B claim. We respond to this argument by noting that the express language of § 32D does not require the plaintiffs to provide the landlord with names of specific persons; it requires that the landlord have "actual or constructive notice of [the] unlawful conduct" (emphasis added). G.L.c. 121B, § 32D. Moreover, the defendant does not set forth any argument regarding either the reason or the logic by which we should infer such a requirement from the statute.
On remand, the plaintiffs will have to prove the elements of § 32D: unlawful conduct as described in § 32C occurring on the premises; serious threat to the plaintiffs' health or safety as a result of said conduct; reasonable cause to believe that the unlawful conduct will continue to pose a serious threat; and actual or constructive notice to the landlord of the unlawful conduct. In addition, since the exclusive remedy under § 32D is an order requiring the landlord to take action under § 32C, and since it would be a waste of judicial resources to issue a § 32D order with which the landlord could not possibly comply, the plaintiffs must show that the landlord knows or can discover by reasonable effort the identity of those persons sought to be enjoined under § 32C.
2. Warranty of habitability. The plaintiffs argue that the judge erroneously granted summary judgment for the defendant on their claim for breach of the warranty of habitability.
In 1973 this court recognized that the essence of the modern day leasing transaction was to provide a dwelling suitable for occupation. Boston Hous. Auth. v. Hemingway, 363 Mass. 184,
See Young v. Garwacki, 380 Mass. 162, 164-169 (1980) (reviewing the evolution of common law principles pertaining to the relationship between landlord and tenant). We adopted the rule that in all rentals of premises for dwelling purposes, there is implied a warranty that the premises are fit for human occupation. Hemingway, supra at 199. Under this warranty of habitability, the landlord warrants "that at the inception of the rental there are no latent [or patent] defects
The language from Hemingway quoted above, suggests that the scope of the warranty of habitability includes only the physical maintenance and repair of a dwelling unit, because the discussion focused on the inability and lack of incentive of modern day tenants to maintain and repair the dwelling units they rent. Hemingway, supra at 197-198. In addition, we previously have noted that the minimum standards of the warranty of habitability are measured by applicable building and sanitary codes, but we have left open the question whether the scope of the warranty is broader than the announced minimum standards. Berman & Sons v. Jefferson, 379 Mass. 196, 201 n. 9 (1979). Today the plaintiffs ask us to expand the scope of the warranty so that it is breached by the presence on the premises of uninvited persons engaged in unlawful conduct. We decline to do so, and leave open the question posed in Berman & Sons, supra, for another day.
The plaintiffs have pointed to no case in which a landlord was found to have breached the warranty of habitability as a result of a nonphysical "defect" in the premises, and our own review of our case law and that of other jurisdictions likewise reveals no such case. But see Pippin v. Chicago Hous. Auth., 78 Ill.2d 204, 214 (1979) (Clark, J., concurring in part and dissenting in part) ("Safe encompasses both the physical and social conditions of the premises" [emphasis in original]). The plaintiffs rely on Trentacost v. Brussel, 82 N.J. 214 (1980), where the Supreme Court of New Jersey held, in general terms, that the warranty of habitability included the provision of reasonable measures of security. Trentacost, supra at 227-228. In Trentacost, however, the plaintiff was attacked in the hallway of an apartment building that had no lock on its front door. Id. at 218. The court found that the
The relevant housing code in Massachusetts requires that a residential building have a secure, locking front door. 105 Code Mass. Regs. § 410.480 (1986). Thus, despite the broad language in Trentacost, the New Jersey court reached the same result that the plaintiff would have received under existing Massachusetts law. See Berman & Sons, supra at 201 n. 9; Altschuler v. Boston Rent Bd., 12 Mass.App.Ct. 452, 456-457 (1981). The reasoning in Trentacost does not suggest to us that the New Jersey court intended so greatly to expand the scope of the warranty of habitability as the plaintiffs here argue.
We conclude that the implied warranty of habitability is concerned with the provision, maintenance, and repair of the physical facilities vital to the use of the leased premises, and is not breached solely by the presence on the premises of uninvited persons engaged in unlawful activities or by the failure to provide security services.
As we read the cases cited infra, the warranty of habitability does not require, by itself, that the landlord provide security guards or other police services, because such services in no way relate to the maintenance or repair of the physical facilities vital to the use of the premises. Indeed, in cases where courts have discussed landlords' liability resulting from improper security, whether under negligence or contract theories, the factual background of those cases consistently involves situations where the landlord either voluntarily had agreed to provide security services and did so negligently, or failed to provide or to maintain proper security devices such as locks or appropriate external doors. See Mullins v. Pine Manor College, 389 Mass. 47, 52 (1983) (duty to provide security which college voluntarily assumes must be performed with due care); Brown v. LeClair, 20 Mass.App.Ct. 976, 979 (1985) (where assailant punched through "flimsy" door which was in violation of State sanitary code, landlord was liable for damages for injuries sustained by tenant); Kline v. 1500 Mass. Ave. Apartment Corp., 439 F.2d 477, 486-487 (D.C. Cir.1970) (landlord breached duty to tenant where it failed to maintain security measures that existed at inception of tenancy); Choy v. First Columbia Management, Inc., 676 F.Supp. 28, 31 (D. Mass. 1987) (where lease did not contain promise by landlord to provide twenty-four hour security, there was no claim against landlord for
The plaintiffs have not alleged or shown any physical defect in the common areas of the rented premises amounting to a breach of the warranty of habitability, that facilitated the presence on the premises of unwanted persons. Therefore, the judge correctly granted summary judgment on the claim for breach of the warranty of habitability.
3. Covenant of quiet enjoyment. The plaintiffs argue that the judge erred in granting summary judgment in favor of the defendant on their claim that the defendant violated G.L.c. 186, § 14 (1992 ed.), the so-called "quiet enjoyment" statute. See Simon v. Solomon, 385 Mass. 91, 94 (1982). The plaintiffs contend that the defendant caused a serious interference with their right of quiet enjoyment by failing to take necessary measures to provide reasonable security. The defendant counters that the covenant of quiet enjoyment is breached only by acts of the landlord or a person or instrumentality subject to the landlord's control
General Laws c. 186, § 14, provides, in relevant part, that "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 imprisonment, and also shall be subject to liability to the tenant for damages arising from the interference. This section also confers on the Superior and District Courts the authority in equity to restrain violations of its provisions. Id.
The covenant of quiet enjoyment protects a tenant's right to freedom from serious interference with his tenancy — acts or omissions that impair the character and value of the leased premises. Manzaro v. McCann, 401 Mass. 880, 884 (1988). Ianello v. Court Management Corp., 400 Mass. 321, 323 (1987). Leardi v. Brown, 394 Mass. 151, 167 (1985). Simon v. Solomon, supra at 102. In analyzing whether there is a breach of the covenant, we examine the landlord's conduct and not his intentions. Blackett v. Olanoff, 371 Mass. 714, 716 (1977). Thus, a landlord may not intend to violate a tenant's right to quiet enjoyment, but may do so nevertheless when the breach is a "natural and probable consequence of what the landlord did, what he failed to do, or what he permitted to be done." Id., and cases cited.
In this case, we have no doubt that, if the plaintiffs truly are unable use the common areas of the development, including sidewalks, streets, parking lots, and recreation areas within it,
The issue on which our decision turns, then, is whether this serious interference with the tenancy of the plaintiffs is the natural and probable consequence of what the landlord did, failed to do, or permitted to be done. Blackett, supra at 716. We conclude that this is a question of fact to be determined on remand. There is no authority, however, for the proposition that the defendant must provide around the clock security or other police services. In fact, the decision as to the proper means to ensure security is a discretionary decision left to the housing authority. See Wheeler v. Boston Hous. Auth., 34 Mass.App.Ct. 36, 39 (1993).
The record before us demonstrates that the defendant has undertaken only two measures to curb the unlawful activity occurring on the premises: the defendant entered into an agreement with the city of New Bedford under which the city provides police services in the same manner and to the same extent that such services are provided to other residents of the city, and the defendant occasionally evicted tenants engaged in illegal drug activities. There is nothing that suggests that the defendant has taken any actions aimed specifically against nontenants engaged in unlawful activity.
Thus, the record suggests that the defendant stood idle, despite continued requests and complaints by the tenants regarding the drug activity on the rented premises. Moreover, the record suggests that the defendant stood idle when there were certain measures that it could have taken relatively easily. Instead, it appears that the defendant did nothing. If the defendant failed to take any action to remove from the area of its control persons engaged in unlawful activity, then the defendant permitted a condition to exist that substantially interfered with the tenancies of the plaintiffs and thus breached the covenant of quiet enjoyment.
We conclude that the judge erred in granting summary judgment for the defendant on the plaintiffs' claim of violation of G.L.c. 186, § 14. There must be a trial to determine what, if any, measures the defendant has taken to remove nontenants engaged in unlawful activity and to determine the seriousness or substantiality of the interference with the tenancies. If the defendant has taken no action or inadequate
4. Nuisance. The plaintiffs contend that the judge incorrectly granted summary judgment in favor of the defendant on their nuisance claim. There was no error.
"A private nuisance is actionable when a property owner creates, permits, or maintains a condition or activity on his property that causes a substantial and unreasonable interference with the use and enjoyment of the property of another" (emphasis supplied). Asiala v. Fitchburg, 24 Mass.App.Ct. 13, 17 (1987), citing Morash & Sons v. Commonwealth, 363 Mass. 612, 616 (1973), and Leary v. Boston, 20 Mass.App.Ct. 605, 609 (1985). The private nuisance standard described in Asiala requires two different parcels of property: one on which the nuisance condition exists, and another whose occupants are burdened by the nuisance. Thus, although a tenant has a sufficient interest in rented property to bring a nuisance suit for interference with that property, Connerty v. Metropolitan Dist. Comm'n, 398 Mass. 140, 147 (1986), the suit can be brought only against the owner of
5. Conclusion. So much of the order of the Superior Court granting the defendant's motion for summary judgment on the plaintiffs' claim pursuant to G.L.c. 121B, §§ 32C and 32D, and the claim for breach of the covenant of quiet enjoyment, is vacated and the judgment is reversed. The remainder of the order, granting summary judgment on the claim for breach of the warranty of habitability and the claim for nuisance, is affirmed. The case is remanded to the Superior Court for further proceedings in accordance with this opinion.
LYNCH, J. (dissenting in part).
General Laws c. 121B, § 32D (1992 ed.), confers on tenants of public or subsidized housing the authority to bring an action to require their landlord to seek injunctive or other appropriate relief as provided in G.L.c. 121B, § 32C (1992 ed.).
Section 32D states that the tenant can bring an action against the landlord only "provided that the landlord of the public or subsidized housing development has actual or constructive notice of said unlawful conduct" (emphasis supplied). The court concludes today that § 32D does not expressly
The court concedes that the housing authority may pursue an injunction pursuant to § 32C only against named nontenants. Ante 278 at n. 6. A fundamental principle of statutory construction is that, in interpreting any particular provision, it should be construed as part of the statute as a consistent whole. Walker v. Board of Appeals of Harwich, 388 Mass. 42, 51 (1983). Thus, reading § 32D along with § 32C to which it refers, the logical conclusion is that the housing authority must have actual or constructive notice of the unlawful conduct by a person before a duty arises under §§ 32C or 32D to seek an injunction or other relief. Accordingly, in order to sustain a § 32D action, tenants must either name the offenders or they must show that the housing authority has actual or constructive notice of the identity of such offenders.
The affidavits offered by the plaintiffs do not identify those who have conducted unlawful activities on housing authority common areas, nor do the affidavits assert that the housing authority has actual or constructive notice of the identities of such persons.
I conclude, therefore, that the judge correctly granted summary judgment in favor of the defendant housing authority.
The plaintiffs requested that this action be certified as a class action. They purport to represent "all tenants, and lawful residents, in the Shawmut Village and Satellite Village public housing projects." The Superior Court judge did not rule on this request.
We acknowledge the amicus briefs filed by the Boston Housing Authority and the Massachusetts Union of Public Housing Tenants. The motion of the Lawrence Housing Authority to join in the amicus brief of the Boston Housing Authority is allowed.
"Whenever a person who is not a member of a tenant household has, on or near a public housing development or a subsidized housing development: (a) caused serious physical harm to a member of a tenant household or employee of the landlord, (b) intentionally, willfully, and repeatedly destroyed, vandalized, or stolen property of a member of a tenant household or of the landlord (c) intentionally and willfully destroyed, vandalized, or stolen property of a member of a tenant household or of the landlord and attempted to seriously physically harm a member of a tenant household or employee of the landlord (d) possessed or carried a weapon in violation of section ten of chapter two hundred and sixty-nine or possessed or used an explosive of infernal machine, as such is defined in section one hundred and two A of chapter two hundred and sixty-six with the exception of firecrackers or violated any other provision of section one hundred and one, one hundred and two, one hundred and two A or one hundred and two B of chapter two hundred and sixty-six; (e) unlawfully sold or possessed with intent to distribute a controlled substance established as class A, B, C, or D in section thirty-one of chapter ninety-four C; or (f) committed or repeatedly threatened to commit a battery upon a person or damaged or repeatedly threatened to commit damage to the property of another for the purpose of intimidation because of said person's race, color, religion, or national origin; the landlord of such premises may bring a civil action for injunctive or other appropriate equitable relief in order to prohibit said person from entering or remaining in or upon the public or subsidized housing development, unless there is cause to believe that such unlawful conduct is unlikely to continue or to pose a serious threat to the health or safety of the development, the tenant households at such development, or the employees of the landlord."
General Laws c. 121B, § 32D (1992 ed.), provides:
"A tenant or member of a tenant household in a public or subsidized housing development whose health or safety has been seriously threatened as described in section thirty-two C, and where there is reasonable cause to believe that such unlawful conduct will continue to pose a serious threat to his health and safety may institute and prosecute in his own name and on his own behalf or on behalf of other willing household members a civil action requiring the landlord of the public or subsidized housing development to seek injunctive and other appropriate relief as provided in section thirty-two C, provided that the landlord of the public or subsidized housing development has actual or constructive notice of said unlawful conduct.... This paragraph does not limit any existing nor create any new civil or criminal liability." (Emphasis supplied.)
The defendant's position as a public housing authority also does not affect its liability, because, as we have noted, "[a]lthough in certain respects a public body, the [housing authority] in carrying on its housing functions is submissible to and must abide by the ordinary substantive law of the Commonwealth — the rules of contract, tort, and so forth.... In its relations with its tenants, [the housing authority] has rights and duties like those of other landlords: this appears from many decided cases.... And, like other landlords, [the housing authority] is under duties as prescribed by G.L.c. 111, §§ 127A-127N, including the duty to maintain residential properties in accordance with the minimal standards established by the State Sanitary Code." (Citations omitted.) Perez v. Boston Hous. Auth., 379 Mass. 703, 727-728 (1980).