Dennis M. Di Schino v. Henry (Nian) Lu. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-274
DENNIS M. DI SCHINO
vs.
HENRY (NIAN) LU.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a bench trial, a judge of the Housing Court issued
findings of fact, rulings of law, and an order for judgment
dismissing the plaintiff's summary process complaint without
prejudice and awarding the defendant damages on his
counterclaims, including $6,000 on his counterclaim for breach
of the covenant of quiet enjoyment. The plaintiff appeals from
the judgment and from the judge's order denying reconsideration.
The sole issue raised is whether the evidence supported the
judge's finding that the plaintiff breached the covenant of
quiet enjoyment. We conclude that it did not and thus reverse
that portion of the judgment.
Background. We summarize the judge's findings of fact.
The parties entered into a one-year lease in August 2019. When
the lease expired in September 2020, the parties entered into a
tenancy at will agreement.
On June 23, 2021, the plaintiff sent the defendant a
letter, which stated in relevant part (quoted verbatim):
"This letter also serves as notice that I am terminating
the thirty (30) day tenant at will agreement. You have
until July 31, 2021 to vacate the premises. As you are
aware, the property is being redeveloped to include 15 new
housing units. As part of the construction, new utility
lines will be brought into the existing two-family house.
Starting on August 1, 2021 the utilities to your unit will
be disconnected as part of the construction work."
On July 6, 2021, the defendant responded by letter that the
plaintiff needed a court order to remove the defendant or his
possessions from the premises. The defendant's letter further
stated, in relevant part (quoted verbatim):
"I have experienced substantial interference with the use
and enjoyment of my home because of your actions. Any
utility shut-off will prevent me from doing my business
tasks, and create loss of income. It creates problem for
my livelihood. Also, Coronavirus delta variant is
spreading. There is a high probability that I will get
infected during the move."
The plaintiff responded by e-mail the same day, informing
the defendant that he did not have a lease agreement and that if
he stayed in the apartment beyond July 31, the plaintiff would
incur damages, including "very expensive construction delays and
possible loss of a building permit." On July 13 the plaintiff
sent the defendant another letter in which he stated that he
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"cannot guarantee utility service beyond July 31st due to the
construction schedule for the property."
The plaintiff filed his summary process complaint in August
2021.1 After the trial, held in November 2021, the judge found
that the plaintiff's June 23, 2021, notice to quit wrongfully
"threatened" to shut off the defendant's utilities and thereby
interfered with his quiet enjoyment of the premises. The judge
made no finding that the plaintiff actually shut off the
utilities. The plaintiff moved to reconsider, averring in a
supporting affidavit that he "had not, and would not, shut off
[the defendant's] utilities while he was occupying the
[p]remises." In his order denying the motion to reconsider, the
judge reiterated that the "threat" to shut off the utilities was
what constituted the breach of the covenant of quiet enjoyment.
Discussion. We accept the judge's findings of fact unless
clearly erroneous but "scrutinize without deference the legal
standard which the judge applied to the facts." Andover Hous.
Auth. v. Shkolnik, 443 Mass. 300, 306 (2005), quoting Kendall v.
Selvaggio, 413 Mass. 619, 621 (1992). The plaintiff contends
that the judge's ruling was erroneous both as a matter of fact
and as a matter of law. We agree.
1 The complaint, originally filed in the District Court, was
later transferred to the Housing Court.
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First, it was clear error to find that the plaintiff's
threat to shut off the utilities interfered in fact with the
defendant's enjoyment of the premises. As the basis for that
finding, the judge relied on the defendant's July 6, 2021,
letter. The judge characterized the letter as "point[ing] out
. . . the impact the [p]laintiff's threat to disconnect [the
defendant's] utility services and implied threat not to seek
judicial process had, and continued to have, on [the defendant]
including preventing him from engaging in his professional
business tasks, economic loss and the probability of getting
infected with the Coronavirus delta variant." But even assuming
the notice to quit can be interpreted as a threat,2 the
defendant's letter does not state that the threat itself caused
him any harm. Rather, it states that the defendant would suffer
the identified harms if there was "[a]ny utility shut-off" and
if he was forced to "move" without a court order. The judge's
finding to the contrary was clearly erroneous.
Second, the judge erred as a matter of law in concluding
that the threat rose to the level of "serious interference" with
the defendant's tenancy, as is required to establish a breach of
the covenant of quiet enjoyment. Doe v. New Bedford Hous.
Auth., 417 Mass. 273, 285 (1994). The term "serious
2 The plaintiff argues that this is not a reasonable
interpretation, but we need not reach that question.
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interference" means "acts or omissions that impair the character
and value of the leased premises." Id. Under G. L. c. 186,
§ 14, which codified tenants' common law right under the implied
covenant of quiet enjoyment, see Simon v. Solomon, 385 Mass. 91,
102 (1982), a "landlord of any building or part thereof occupied
for dwelling purposes" is liable for damages if he "willfully or
intentionally fails to furnish" utilities "necessary to the
proper or customary use of such building or part thereof."
Here, the judge did not find that the plaintiff actually
disconnected the utilities, nor did he identify any other act or
omission by the plaintiff that "impair[ed] the character and
value of the leased premises." Doe, supra. The defendant's
counterclaim for breach of the covenant of quiet enjoyment thus
fails as a matter of law.
Conclusion. So much of the judgment that awards the
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defendant damages on his counterclaim for breach of the covenant
of quiet enjoyment is reversed. The remainder of the judgment
is affirmed.
So ordered.
By the Court (Green, C.J.,
Shin & Hershfang, JJ.3),
Clerk
Entered: April 27, 2023.
3 The panelists are listed in order of seniority.
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