Daily Development for Friday, February 9, 2001

LANDLORD/ TENANT; RESIDENTIAL; PUBLIC HOUSING: Landlord is not entitled to recover the entire contract rent from tenants after the local housing authority stops making payments.

Curtis v. Surrette, 726 N.E.2d 967 (Mass.App.Ct. 2000).

Tenants rented a Section 8 apartment from Appellee in July 1996. Under the Section 8 program, Tenants paid a portion of the monthly rent and the Worcester Housing Authority (WHA) paid the balance of the rent. Tenants stopped paying rent in February 1997 when they learned that four of the eight children with whom they shared the apartment had elevated levels of lead in their blood. The WHA made its last rental payment in August 1997 due to the fact that the apartment had not been satisfactorily deleaded.

In March 1998, Landlord commenced summary process proceedings to evict Tenants for nonpayment of rent. Tenants counterclaims alleged violations of the State Sanitary Code, including the presence of lead paint in the apartment, breach of the covenant of quiet enjoyment and retaliation. The Worcester Housing Court concluded that Landlord was entitled to back rent in the amount of $8,970.00, awarded Tenants $2,700.00 for breach of the covenant of quiet enjoyment and awarded Tenants $1,000.00 in attorneys' fees. Further, the court ruled that unless Tenants paid Landlord the sum of $6,270.00 within 7 days of their receipt of the decision, the court would enter a judgment for possession in favor of Landlord.

Tenants did not pay the back rent within the specified time, and the court entered judgment for possession to Landlord.

On appeal, Tenants argued, inter alia, that the amount of back rent awarded to Landlord should have been based solely on the portion of rent that Tenants were obligated to pay rather than the full contract rent payable by Tenants and the WHA. The Court found that the rental contract was unambiguous in its terms, and provided that a tenant's share of the rent as determined by the WHA was the maximum amount a landlord may require the tenant to pay.

Furthermore, the Court found, there was no provision in the rental contract that provided for tenant liability for the entire contract rent in the event the WHA terminated its housing subsidy payments. The Court thus held, inter alia, that Appellants may be liable only for that portion of the contract rent that they assumed and agreed to pay. It found that the total arrearage owed by Appellants was $4,410.00, less Appellant's award of $2,700.00 for their counterclaim for breach of the covenant of quiet enjoyment which the Court upheld on appeal.

Judgment was vacated and remanded to the Worcester Housing Court.

Comment: Any time you are in Massachusetts and dealing with an implied warranty claim, watch out! But in any event, it makes sense to look at the Section 8 agreement as an implied part of the lease agreement, because both landlord and tenant know that this is the fundamental source of economic assurance for the deal to go through. For the landlord to argue that the landlord can recover rent after the landlord has frustrated the tenant's ability to rely upon Section 8 monies by failing to provide housing that meets Section 8 standards seems a weak position.

It may be that we're missing something here that the court doesn't give us concerning the landlord's position. Any Section 8 mavens who can clear things up?

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