Chapter 9: Property and Conveyancing William Schwartz
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Annual Survey of Massachusetts Law Volume 1977 Article 12 1-1-1977 Chapter 9: Property and Conveyancing William Schwartz Follow this and additional works at: http://lawdigitalcommons.bc.edu/asml Part of the Property Law and Real Estate Commons Recommended Citation Schwartz, William (2012) "Chapter 9: Property and Conveyancing," Annual Survey of Massachusetts aL w: Vol. 1977, Article 12. Schwartz: Chapter 9: Property and Conveyancing Chapter 9 Property and Conveyancing WILLIAM SCHWARTZ* §9.1. Landlord and Tenant-Breach of Covenant of Quiet EnjOy ment Resulting From Acts of Tenants. To what exteri.t is a landlord responsible to one tenant for the activities of other tenant$? More specif ically, can a breach of the landlord's covenant of quiet enjoyment arise from annoyances and disturbances created by tenants? This was the subject of the Court's opinion in Blackett v. Olanoff. 1 Blackett involved actions brought by a landlord against two residen tial tenants to recover rent and other charges due und(lr a lease. 2 The tenants in their answers alleged that they had been deprived of' the possession and enjoyment of the leased premises by, the landlord's breach of his implied covenant of quiet enjoyment. 3 After a trial in the Boston Housing Court, findings favorable to the tenant-defendants were made by that court; and the landlord appealed. 4 On ~ppeal, the Su preme Judicial Court affirmed the housing court's deci$ion. 5 At trial, the evidence presented revealed that the tenant-defendants had occupied adjacent fourth floor apartments in the landlord's apart ment house since 1967. • The landlord also owned a one~-story building which was located approximately 22 feet from that side o£ the apartment house on which the tenants' apartments were located. 7 In 1971, the * WILLIAM SCHWARTZ is a Professor of Law at Boston University School of Law. He is the author of FUTURE INTERESTS & ESTATE PLANNING (1965) and a coauthor of MASSACHUSETTS PLEADING & PRACTICE: FoRMs & CoMMENTARY (1974). He is also of counsel to the law firm of Swartz and Swartz, Boston. §9.1. 1 1977 Mass. Adv. Sh. 60, 358 N.E.2d 817. z Plaintifrs Appeal at 1-8, 10-13 Blackett v. Olanoff, 1977 Mass. Adv. Sh. 60, 358 N.E.2d 817 [hereinafter cited as Plaintifrs Appeal]. The case actually involved several landlords, but since the actions were consolidated, the landlords will b, referred to collec tively as the landlord. Blackett, 1977 MaBB. Adv. Sh. at 60, 358 N.Ei.2d at 818. 1 Plaintifrs Appeal, supra note 2, at 9, 14. ' • 1977 MaBB. Adv. Sh. at 60-61, 358 N.E.2d at 818. 1 Id. at 61, 358 N.E.2d at 818. • Brief of Appellant at 2, Blackett v. Olanoff, 1977 Mass. Adv. Sh. 60,358 N.E.2d 817, citing Trial Record at 12, 14, 57, 58 [hereinafter cited as Brief of Appellant]. 7 Brief of Appellant, supra note 6, at 2, citing Trial Record at 15. Published by Digital Commons @ Boston College Law School, 2012 1 Annual Survey of Massachusetts Law, Vol. 1977 [2012], Art. 12 §9.1 PROPERTY AND CONVEYANCING 161 landlord leased the one-story building to a commercial tenant for a term of 3 years commencing February 1, 1971.8 The commercial lease pro vided that the premises were to be used "only for a cocktaillounge"u and "that all entertainment . will be such that . same cannot be heard outside the building and will not disturb residents of [the apart ment house] .... [No] customers will be served between the hours of 1 a.m. and 9 a.m. and no customers will remain ... after 1:30 a.m." 111 At the· trial, further evidence was presented that the cocktail lounge had amplified music (electrical musical instruments and singing, at times) which began at 9:30 p.m. and continued until 1:30 a.m. or 2:00 a.m. The music was audible through the granite walls of the tenants' apartment building and was described variously as "unbelievably loud, incessant, raucous and penetrating." The noise disturbed conversation and prevented sleep. In addition, there was evidence of noise from lounge patrons' yelling and fighting.U The housing court found that the tenants were '"very substantially deprived' of quiet enjoyment of their leased premises 'for a substantial time'."12 The court also found that, even though the landlord had not created the conditions intentionally, the landlord '"had it within [hisj control to correct the conditions which . amounted to a constructive eviction of each [tenant]'."13 The trial judge also found that the land lord promised each tenant that he would remedy the situation, that the landlord made an unsuccessful attempt to do so, and that each tenant vacated the premises within a reasonable time. 14 In an opinion by Justice Wilkins, the Supreme Judicial Court af firmed the housing court's finding of constructive eviction. The Court held that where "the disturbing condition was the natural and probable consequence" of the landlord's permitting the non-residential tenant to continue its activities, and where the landlord had control over that tenant's activities, the landlord was not entitled to collect rent from the residential tenants who had been deprived of the quiet enjoyment of their premises. 15 The Court acknowledged that its conclusion was con trary to the general rule that a landlord is not liable when one tenant causes annoyance to another .11 The Court noted that the instant case was distinguishable from the situation where one residential tenant an- • Brief of Appellant, supra note 6, at 2-3, citing Defs. Exh. C. • Brief of Appellant, supra note 6, at 3, citing Tr. 106, Defs. Exh. C para. IV(q). 10 Brief of Appellee at 3-4, Blackett v. Olanoff, 1977 Mass. Adv. Sh. 60, 358 N .E.2d 817, citing Trial Record at 105-06 (emphasis deleted). 11 1977 Mass. Adv. Sh. at 61 n.3, 358 N.E.2d at 818 n.3. 12 Id. at 60, 358 N.E.2d at 818 (emphasis in original). 13 Id. at 60-61, 358 N.E.2d at 818. " Id. at 61, 358 N.E.2d at 818. 15 ld. at 64, 358 N.E.2d at 820. 11 Id. at 63 & n.4, 358 N .E.2d at 819 & n.4. http://lawdigitalcommons.bc.edu/asml/vol1977/iss1/12 2 Schwartz: Chapter 9: Property and Conveyancing 162 1977 ANNUAL SURVEY QF MASSACHUSE'M'S LAW §9.1 noys another, in which case the landlord traditionally has not been held responsible for breach of the covenant of quiet enjoyment. 17 In Blackett, the natural and probable consequence of the landlorQ.'s lease of the commercial property was annoyance to the residential tenants. This fact, coupled with the landlord's retention of control ov•r the activities of the commercial tenant, excepted this case from the general rule. 18 In the course of its opinion, the Court clarified some ot the uncertain ties existent in this area of the law. Formerly, a distinction had been suggested in the Court's treatment of a landlord's misfeasance and non feasance, the landlord being liable only for actual misf~asance." Even if this nonfeasance-misfeasance distinction previously had any viability, its demise was clearly forecast by the Court's decision in Pridgen v. Boston Housing Authority. 2' In Blackett, the Court declined to "perpetuate that distinction where the landlord creates .a situation and has the right to control the objectionable conditions. " 21 Some of the prior opinions indicated that the landlord must have performed some act with the intent to deprive the ten~t of the enjoy ment and occupation of the premises. zz The Court rejec~d the necessity of a showing of an intent to evict as a sine qua non fqr breach of the covenant of quiet enjoyment. Instead, the Court concuded that "the landlord's conduct, and not his intentions, is controlling."23 The factual circumstances of Blackett give rise to several questions concerning both the nature of a tenant's remedy for a disturbance by another tenant and the scope of the Court's holding that a landlord may be liable for a tenant's conduct. Initially, it should be noted that Blackett arose as a suit by the landlord to collect rent withheld by the residential tenants. A question accordingly arises, whether in the cir cumstances of this case, remedies other than rent withholding were available to the tenants. Despite the history of disturbances emanating from the commercial tenant's premises, each residential tenant entered into a new lease for his apartment for a term beginning September 1, 1972. z• Although execution of the leases was preceded by a negotiation period, 21 the problem of disturbances from the cocktail lounge was not 17 /d. at 63, 358 N .E.2d at 819. 11 /d. at 63-64, 358 N.E.2d at 819-20. " E.g., Lumiansky v. Tessier, 213 Mass.182, 185, 99 N.E. 1051, 1052 (1912). Thus,'one commentator had concluded that the landlord "is not liable for mere non-feasance, where he has not convenanted to do the acts in question." HALL, MASSACHUSETTS LAw or LAND LORD AND TENANT 92 (4th ed. 1949) (footnote omitted). • 364 Mass. 696, 709-12, 308 N.E.2d 467, 475-77 (1974). 11 1977 Mass. Adv. Sh. at 64, 358 N.E.2d at 820. 11 E.g., Katz v. Duffy, 261 Mass. 149, 152, 158 N.E. 264, 265 (1927). 11 1977 Mass. Adv. Sh. at 62, 358 N.E.2d at 819. · u Brief of Appellant, supra note 6, at 5, citii'IIJ Trial Record at 35, 66.