Curtis v. Surrette
Curtis v. Surrette
Opinion of the Court
In March, 1998, Robert Curtis (landlord) commenced summary process proceedings to evict Gordon and Kelleigh Surrette (tenants) for nonpayment of rent in federally subsidized housing in Worcester. The landlord claimed an ar
A trial was held before a judge of the Worcester Housing Court. In his written decision, the judge concluded that the landlord was entitled to back rent in the amount of $8,970.
On appeal, the tenants argue that (1) the landlord’s complaint should have been dismissed because it was retaliatory; (2) the amount of back rent awarded to the landlord should have been based solely on the portion of the rent that they were obligated to pay as subsidized tenants rather than on the full contract rent payable by the tenants and by the Worcester Housing Authority (WHA)
1. The facts. We summarize the facts found by the judge. The tenants
The tenants made their last rent payment in February, 1997. They stopped paying rent because they learned that four of their eight children had elevated levels of lead in their blood. At trial, the landlord testified that the WHA made its last subsidy payment in August, 1997. The WHA had ceased making the subsidy payments because the tenants’ unit had not been satisfactorily deleaded.
The judge found that the landlord failed to inform the tenants of the presence of lead paint in their unit at the beginning of their tenancy and that the landlord had neglected to give the tenants the notice that was required before any work was done on the premises. See G. L. c. 111, § 197A. The judge also found that the deleading process was undertaken by two licensed deleaders and by the landlord and his family members who worked as “trained low risk” deleaders and that this process took “an unreasonably long time.” The judge also observed that the attitude of the tenants toward the deleading work and repair that needed to be done was “generally confrontational and marginally cooperative.”
2. Landlord’s back rent award. The judge found that the landlord was entitled to recover $8,970 in back rent. In calculating this award, the judge held the tenants liable for the entire amount of the contract rent ($900 per month) from September, 1997, through April, 1998. This included the months in which the WHA did not make subsidy payments to the landlord (as described below). The tenants argue that any award of back rent to the landlord should be limited to that portion of the rent for which the tenants were individually responsible under the lease.
The landlord claims that he is entitled to recover the full contract rent from the tenants for all of the months in which the WHA did not make subsidy payments. Under the HAP contract between the landlord and the WHA, the WHA had the right to stop subsidy payments to the landlord if the tenants’ unit was not maintained in a satisfactory manner. The landlord claims that he attempted to maintain the premises in a satisfactory manner but was prevented from doing so by the tenants. Because the tenants engaged in “confrontational and marginally cooperative” conduct, the landlord argues that the tenants should be held accountable for the consequences of such conduct, including the payment of the entire contract rent.
First, the judge did not find that the “marginal” conduct of
The language contained in these documents is unambiguous, and it is “elementary that an unambiguous agreement must be enforced according to its terms.” Schwanbeck v. Federal-Mogul Corp., 412 Mass. 703, 706 (1992). See Suffolk Constr. Co. v. Lanco Scaffolding Co., 47 Mass. App. Ct. 726, 729 (1999). Regardless of the “marginally cooperative” conduct of the tenants during the deleading process, and even though the WHA terminated the HAP contract with the landlord and ceased making subsidy payments, the tenants never assumed the responsibility of paying the entire contract rent and cannot be forced to do so now.
The Federal regulations regarding the Department of Housing and Urban Development’s housing assistance program are consistent with the conclusion we have reached. For example, 24 C.F.R. §§ 982.310(b)(1) and 982.451(b)(4)(iii) (1995) both provide that “[t]he family is not responsible for payment of the portion of . . . rent to owner covered by the housing assistance payment under the HAP contract between the owner and the [housing authority].” Furthermore, 24 C.F.R. § 982.310(b)(2) (1995) provides that “[t]he [housing authority’s] failure to pay
For these reasons, we hold that the tenants may be held liable only for that portion of the contract rent that they assumed and agreed to pay. As a result, the landlord is entitled to recover $370 per month from March, 1997, through June, 1997, which amounts to $1,480. He is also entitled to receive $330 per month from July, 1997, through April, 1998, which amounts to $3,300. The trial judge properly credited the tenants with the payment of one month’s rent at $370. Thus, the total arrearage owed by the tenants is $4,410.
3. Measure of damages for breach of covenant of quiet enjoyment. The tenants contend that the trial judge improperly calculated the damage award on their counterclaim. The judge found that the landlord had breached the tenants’ right to quiet enjoyment of their premises under G. L. c. 186, § 14,
General Laws c. 186, § 14, provides that “[a]ny person who commits any act in violation of this section shall ... be liable for actual and consequential damages or three month’s rent, whichever is greater.” In an action involving a breach of the covenant of quiet enjoyment where the tenant remains in possession of the premises, actual damages “are measured by the difference between the value of what the lessee should have received and the value of what he did receive.” Darmetko v. Boston Hous. Authy., 378 Mass. 758, 761 n.4 (1979). See Charles E. Burt, Inc. v. Seven Grand Corp., 340 Mass. 124, 130
While the judge did not explicitly find that the award of three months’ rent was greater than the tenants’ actual damages, it is sufficiently clear from his written findings that he took into consideration the factors that were necessary to calculate a proper damage award. See, e.g., McKenna v. Begin, 3 Mass. App. Ct. 168, 171 (1975) (in valuing defective premises, “consideration is to be given to 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”). The judge properly took the conduct of both parties into account in determining the damage award.
Allowing the tenants to recover on their counterclaim on the
4. Attorney’s fees. After trial, the judge awarded the tenants attorney’s fees in the amount of $1,000 based on the fee provision of G. L. c. 186, § 14. The tenants claim that the judge abused his discretion in rendering the award. Their attorney submitted an affidavit to the trial judge in which he indicated that he performed 38.5 hours of work on the tenants’ case at a rate of $200 per hour, for a total of $7,700 in fees. The tenants claim that the issues in the case were complex and were worth more than an award of $1,000.
The guidelines for determining a reasonable attorney’s fee authorized by statute have been set forth in Heller v. Silverbranch Constr. Corp., 376 Mass. 621, 629 (1978), and in Linthicum v. Archambault, 379 Mass. 381, 388-389 (1979). Here, the trial judge considered these guidelines and found that an excessive amount of time had been devoted to the issues. However, he also found that time spent before the landlord’s notice to quit, given February 9, 1998 — eleven months after the tenants first exercised their right to withhold rent — was not cognizable under § 14. We disagree. The tenants were certainly well advised to consult counsel promptly after the discovery of the lead paint in February, 1997. Four of their eight children, the judge found, had been diagnosed with elevated blood lead levels. The landlord, as we have said, failed to inform the tenants of the presence of lead paint at the beginning of their tenancy in July, 1996, and the continuing unresolved condition of lead paint in the leased premises was, the judge found, a substantial interference with the tenants’ quiet enjoyment. There being a violation of § 14 at least as early as February, 1997, the tenants are entitled to recover attorney’s fees for legal services that were required beginning in February, 1997.
5. Conclusion. The judgment is vacated. The case is remanded to the Worcester Housing Court for entry of an amended judgment as follows. The award of fees of trial counsel in the amount of $1,000 shall be vacated, and a new order for counsel fees, calculated on a basis consistent with this opinion, is to be entered. Prior to entering the new judgment, the Housing Court shall give written notice to the tenants of the balance due on their rent, i.e., the amount due based solely on the tenants’ share of the rent. That is to say, the landlord is entitled to an award of $4,410, from which the tenants’ award of $2,700 on their counterclaim for the breach of the covenant of quiet enjoyment should be deducted. Pursuant to G. L. c. 239, § 8A, the court shall allow the tenants seven days from receipt of notice to pay the clerk of the court the sum of $1,710. If the tenants pay this sum within the specified time period, judgment for possession and for attorney’s fees shall enter for the tenants. If the tenants fail to pay this sum within the specified time, then judgment for possession and $1,710 shall enter for the landlord, and judgment for attorney’s fees shall enter for the tenants.
So ordered.
The tenants were credited with a payment of one month’s rent in the amount of $370 against the $9,340 that the judge found they owed to the landlord.
The judge deducted the amount that he awarded to the tenants on their counterclaim for breach of the covenant of quiet enjoyment from the arrearage owed to the landlord.
As described below, the Federal subsidy funds were administered by the Worcester Housing Authority.
At the time of trial, the tenants lived in their unit in Worcester with their eight children.
The trial judge stated at one point in his written decision that the tenants’ initial share of the rent was $360 per month, but the uncontroverted testimony at trial was that the tenants paid $370 per month. We note that the judge did use the $370 figure in calculating the landlord’s award for back rent.
The judge found that “[tjhis fact is only partially explained by the acknowledged logistical effort required to deal with a family of ten.”
On appeal, the tenants claim that the landlord’s complaint should have been dismissed because it was retaliatory under G. L. c. 239, § 2A. The judge made no findings in regard to this claim. “Retaliation” was mentioned in passing in the tenants’ counterclaim (dismissal of the summary, process complaint was not sought by the tenants) and was not directly addressed at the hearing in the Housing Court. In addition, on appeal, the tenants’ argument is conclusory and does not rise to the level of appellate argument. For these reasons, we do not consider this claim. See Youmans v. Ramos, 429 Mass. 774, 786 n. 3 (1999); Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
During trial, the judge stated that the issue of whether the landlord had contractually agreed to hold the tenants liable only for their share of the rent was a question of law for the court. Counsel for the tenants stated that he would leave the decision to the court. However, the judge did not offer any explanation for his decision to calculate the landlord’s back rent award based on the entire contract rent rather than the tenants’ share of that rent. The interpretation of a contract is generally a question of law; thus, the trial judge’s conclusions regarding this issue are subject to plenary review on appeal. See Suffolk Constr. Co. v. Lanco Scaffolding Co., 47 Mass. App. Ct. 726, 729 (1999).
This analysis also disposes of the landlord’s alternate argument that, at the very least, he is entitled to recover the full contract rent from the tenants for March, 1998, and April, 1998, because the HAP contract contains a provision which states that the contract “terminates automatically 180 calendar days after the last housing assistance payment to the owner.” Regardless of when the HAP contract was terminated, the tenants never assumed liability for paying the full contract rent.
In relevant part, this statute imposes civil and criminal liability on a landlord who “directly or indirectly interferes with the quiet enjoyment of any residential premises by the occupant.” G. L. c. 186, § 14. Defective conditions in leased premises may constitute an interference with the tenant’s quiet enjoyment of the leased premises. See Simon v. Solomon, 385 Mass. 91, 99 (1982).
In Darmetko, the court noted that the remedies for a breach of the covenant of quiet enjoyment and the remedies for a breach of the implied warranty of habitability are “quite similar." Darmetko v. Boston Hous. Authy., 378 Mass. at 761 n.4. Thus, we regard decisions involving the implied warranty of habitability as persuasive authority in resolving the issue of damages in this case.
For example, the judge noted the “marginally cooperative” conduct of the tenants, as well as the fact that the deleading effort of the landlord took “an unreasonably long time.”
The tenants briefly argue that they were aggrieved by the trial judge’s ruling that any award regarding the landlord’s violations of the State Sanitary Code “would be subsumed in the greater recovery under General Laws Chapter 186, Section 14.” There was no error in this ruling. The tenants may not recover cumulatively for a breach of the covenant of quiet enjoyment and for violations of the State Sanitary Code based upon the same lead paint violations. See Darmetko v. Boston Hous. Authy., 378 Mass. at 761. Furthermore, to the extent that some of the sanitary code violations did not
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