Boston Housing Authority v. Hemingway

293 N.E.2d 831, 363 Mass. 184, 1973 Mass. LEXIS 394

• Court: Massachusetts Supreme Judicial Court
• Decided: March 5, 1973
• Status: Published

Opinions

Tauro, C.J.

The Boston Housing Authority (landlord) brought two actions of summary process against the defendants (tenants)¹ for failure to pay rent. The tenants contend that they were entitled to withhold rent under G. L. c. 239, § 8A, because their apartments were in uninhabitable condition² in violation oi the State Sanitary Code. The tenants argue in the alternative that the landlord’s breach of an implied warranty that the demised premises were suitable for human occupation extinguished the tenants’ rental obligations. The cases were originally entered and tried in the Municipal Court of the Roxbury District where the judge found for the landlord against the tenants. The tenants appealed to the Superior Court under G. L. c. 239, § 5, as amended through St. 1969, c. 366, where the cases were retried. The trial judge found as to each tenant that the landlord was entitled to possession and rent of $1,200 up to and including June 30, 1970.³ The cases come before us on a consolidated bill of exceptions.

The evidence is summarized. After making repeated demands to the landlord that repairs be made to remedy the defects which rendered their apartments uninhabitable, the tenants began withholding rent on March 1,1969. They took this action after the Boston housing inspection department had issued a report to the landlord which certified that serious housing code violations existed which “may endanger or materially impair the health or safety, and the well-being of any tenant therein or persons occupying said property.” Although G. L. c. 239, § 8A,⁴ permits a tenant to withhold rent in such situations, it required the tenant to give written notice to his landlord of his intention to do so. The record supports the Superior Court judge’s finding that the tenants failed to comply with this provision of the statute and thus were foreclosed from asserting G. L. c. 239, § 8A, as a defence to the Boston Housing Authority’s action.⁵

However, at the close of the evidence, the tenants presented requests for findings of fact and rulings of law. Among the requests were the following: “8. That the obligations of the Housing Authority to supply and maintain premises in compliance with the Housing Regulations and the obligations of the tenant to pay rent under a rental agreement are dependent.” “15. That any money owed by the Defendants to the Plaintiff ought to be determined by this Court according to the degree of in-habitability of each apartment of Defendants.” “21. That even if the Defendants had not complied with Chapter 239 (8) (A) of the Withholding Statute the defense of uninhabitability would still exist if the premises were as a matter of fact found to be in violation of the State Sanitary Code.” The Superior Court judge held that he need not reach these requests for rulings because of the tenants’ failure to comply with the notice requirement of c. 239, § 8A. The denial of these requests presents the central issue in these cases, namely, whether the tenants’ remedies are limited to the pertinent statutory provisions.

Implicit in the trial judge’s decision was the assumption that the tenants had no common law defence. The trial judge correctly applied the common law as it has existed in the Commonwealth for many years in refusing to permit the tenants to raise the landlord’s alleged breach of an implied warranty of habitability as a de-fence to the landlord’s summary process action. “There is no implied agreement, apart from fraud, that the demised premises are or will continue to be fit for occupancy or safe and in good repair. The tenant takes the premises as he finds them and there is no obligation on the landlord to make repairs.” Fiorntino v. Mason, 233 Mass. 451, 452. Although the Fiorntino case involved a tenancy at will, the language applies equally to a tenancy under a lease, absent any express provisions to the contrary. Since the leases between the landlord and the tenants in the present cases do not contain any express covenant to deliver or maintain the apartments in habitable condition, the tenants do not have any common law defence to the landlord’s action of summary process unless we change the old common law independent covenants rule as the tenants urge us to do. The tenants’ challenge to our common law rule of independent covenants has led us to reconsider whether the historical source and justifications for the rule are still valid in the modern context.

1. The Boston Housing Authority relies on a series of Massachusetts cases which established and followed the doctrine of caveat emptor and independent covenants between the landlord and the tenant. Mr. Justice Gray stated the old common law rule in Royce v. Guggenheim, 106 Mass. 201, 202-203: “It is now well settled, both here and in England, that in a lease of a building for a dwelling-house or store no covenant is implied that it should be fit for occupation. [Citations omitted.] And the English authorities, ancient and modern, are conclusive, that even where the landlord is bound by custom or express covenant to repair, and by his failure to do so the premises become uninhabitable, or unfit for the purpose for which they were leased, the tenant has no right to quit the premises, or to refuse to pay rent according to his covenant, but his only remedy is by action for damages.” See, e.g., Kramer v. Cook, 7 Gray 550; Leavitt v. Fletcher, 10 Allen 119; Ware v. Hobbs, 222 Mass. 327; Stone v. Sullivan, 300 Mass. 450.

These cases were predicated on the old common law assumption that a lease was in fact a conveyance of an estate in real property for a term. This characterization of the lease as a transfer of a property interest governed by property law reflected the parties’ expectations in a rural agrarian society where the right to possession of the land constituted the chief element of the exchange. “The common law focused on possession rather than service. The ideal landlord delivered possession, then did nothing more; the ideal tenant paid his rent and demanded nothing more than possession.” Notes, 56 Cornell L. Rev. 489, 490.

Thus, originally at common law, the tenant could not even escape his rental obligation when the demised premises were destroyed because of the law’s view that the land and not the premises was the essential part of the transaction. See Paradine v. Jane, 82 Eng. Rep. R. 897; Am. Law of Property, § 3.103. Even if the landlord made express maintenance promises in the lease, courts often held that the landlord’s breach of these “secondary” obligations did not affect the tenant’s obligation to pay rent. See Stone v. Sullivan, 300 Mass. 450. The tenant was released from his covenant to pay rent only when the landlord repossessed the property or interfered with the tenant’s quiet enjoyment of his leasehold. See Royce v. Guggenheim, 106 Mass. 201 (1870).

Given the rural agrarian context in which these rules were judicially formulated, the independent covenants rule made sense. However, the rule’s strict application often produced harsh results in those cases where the tenant was more interested in the demised building than the land on which it was situated. The chief judicial response to this problem was the development of the “constructive eviction” doctrine “which relieved the tenant of his rent obligation if he could show that he had vacated the leased premises due to a severe failure of maintenance services amounting to a breach of the landlord’s duty to assure quiet possession.” Notes,. 56 Cornell L. Rev. 489, 491. See Nesson v. Adams, 212 Mass. 429 (1912). This rule allowed the court to mitigate some of the injustices stemming from strict application of the independent covenants rule without repudiating the rule’s basic premise that the lease was essentially a conveyance of a possessory interest in land for a term and not a contract for a dwelling suitable for human occupation. The constructive eviction doctrine created the legal fiction that the tenant had been “evicted” to show that the tenant’s possessory interest in the property itself was destroyed by the landlord’s failure to provide adequate maintenance services. It was the loss of the tenant’s possessory interest which excused him from paying rent.

The constructive eviction defence gave the tenant the option of abandoning the demised premises in order to extinguish his rental obligation if the court shared the tenant’s view as to what acts or omissions on the landlord’s part constituted a breach of his duty to assure quiet possession. However, this defence offered little solace to the tenant who was more interested in securing a livable dwelling than a plot of land. Once again, this court responded by creating another exception to the independent covenants rule in those cases where the circumstances made it clear that the tenant’s purpose in signing the lease was to secure a dwelling fit for human occupation.

With rare foresight, this court in Ingalls v. Hobbs, 156 Mass. 348, 350, held that the independent covenants rule did not apply to a leasing of a furnished house or room for a short term. “But there are good reasons why a different rule should apply to one who hires a furnished room or a furnished house for a few days or a few weeks or months. Its fitness for immediate use of a particular kind, as indicated by its appointments, is a far more important element entering into the contract than when there is a mere lease of real estate. One who lets for a short term a house provided with all furnishings and appointments for immediate residence may be supposed to contract in reference to a well understood purpose of the hirer to use it as a habitation. ... It would be unreasonable to hold, under such circumstances, that the landlord does not impliedly agree that what he is letting is a house suitable for occupation in its condition at the time.” Although the court’s holding in the Ingalls case has been limited to its special facts of a short term lease for a furnished room or dwelling, its rationale rested on the broader premise that we would not apply the independent covenants rule in those cases where the essential purpose of the lease was not the transfer of an interest in land but the use of the demised premises for immediate occupation. In effect, the Ingalls case reflected this court’s willingness to imply a warranty of habitability when it was clear that the lease was essentially a contract in which the landlord promised to deliver premises suitable to the tenant’s purpose in return for the tenant’s promise to pay rent.

This judicial willingness to expand the number of exceptions to the independent covenants rule in appropriate cases by treating the lease more as a contract than as a property conveyance was supported by our decision in Charles E. Burt, Inc. v. Seven Grand Corp. 340 Mass. 124. We held in the Burt case that the tenant may get damages in a suit for equitable relief despite its failure to abandon the premises. We noted that damages without abandonment are possible in those cases where the breach of the covenant of quiet enjoyment “goes to the essence” of the contract. P. 129. We decided that the tenant was entitled to damages in the Burt case because “[s]uch relief is more nearly adequate than the incomplete and hazardous remedy at law which requires that the lessee (a) determine at its peril that the circumstances amount to a constructive eviction, and (b) vacate the demised premises, possibly at some expense, while remaining subject to the risk that a court may decide that the lessor’s breaches do not go to the essence of the lessor’s obligation.” The Burt case, supra, 129-130.

The gradual judicial erosion of the independent covenants rule has been accelerated by the Massachusetts Legislature’s initial reforms in the landlord-tenant area. In 1960, the Massachusetts Department of Public Health, pursuant to the authority granted by G. L. c. Ill, § 5, adopted art. II of the State Sanitary Code which established minimum standards of fitness for human habitation for all housing in the Commonwealth. However, this initial legislative and administrative response to the growing housing crisis had little effect because the public agencies, which were totally responsible for the enforcement of the State Sanitary and Housing codes, lacked the resources necessary to police the entire housing sector. See 52 Mass. L. Q. 205. Since the efforts of these agencies to enforce Code regulations had proved ineffective, the Legislature enacted new legislation in 1965 to help promote effective enforcement of Code regulations and thereby insure that all housing would meet the minimal standards of habitability defined by art. II of the State Sanitary Code.⁶

The common purpose underlying these new statutes was to create a private remedy for these public violations by giving the tenant the power to initiate the Code enforcement process. (See 52 Mass. L. Q. 205.) General Laws c. Ill, §§ 127C-127F and 127H, allow the tenant himself to initiate the process by a petition to either a District Court (§ 127C) or the Superior Court (§ 127H) requesting a finding that Code violations exist which “may endanger or materially impair the health or well-being of any tenant.” If the court makes this finding and concludes that “such rental payments are necessary to remedy the condition constituting the violation,” the court may by written order “authorize the petitioner . . . to make rental payments ... to the clerk of the court” (§ 127F). The court can then order the clerk to “disburse all or any portion of the rental payments received by him to the respondent [lessor] for the purpose of effectuating the removal of the violation” (§ 127F). Once the defects are corrected, the remaining balance of any rent paid to the court will be given back to the landlord (§ 127F).

The purpose of these statutes was to allow tenants to initiate the Code enforcement process by bringing before the courts recalcitrant landlords who refused to remedy conditions in the tenants’ dwelling units which violate the State Sanitary Code. However, many tenants, especially poor tenants, would not avail themselves of a remedy which required them to sue their landlords. Therefore, the Legislature has also granted tenants a defensive remedy by enacting c. 239, § 8A.⁷ It authorizes tenants to withhold rent where a housing code inspection report citing sanitary code violations has been issued to the landlord. The tenant can take this action without having to sue the landlord and without fear of being evicted for nonpayment of rent. Chapter 239, § 8A, amended summary process so that the landlord’s violation of State Sanitary Code standards of fitness for human habitation, if properly raised, would constitute a defence for the tenant in that proceeding. This statute allows the tenant to initiate the Code enforcement process by direct action against his landlord without using the court as an intermediary. Unlike the more cumbersome procedure established in c. Ill, §§ 127A-127H, where the landlord can use delaying tactics by asking for repeated continuances, c. 239, § 8A’s provisions force him to take the initiative by making repairs or contesting the tenant’s action in court in order to recover the withheld rent.⁸

Thus, G. L. c. 239, § 8A, grants the tenant the right to withhold rent in order to aid effective enforcement of State Sanitary Code regulations. The statute’s authorization of rent withholding “was to provide a tenant with yet another means of enforcing the state sanitary code or local health regulations, but without the necessity for a timid tenant to initiate court proceedings in what may appear to be a ‘frightening’ system.” 52 Mass. L. Q. 205, 228. This purpose is made clear by the fact that once repairs are made, the landlord receives the balance of any remaining rent held in escrow. Appelstein v. Quinn, 361 Mass. 861. The statute’s clear purpose is to promote repairs by giving the landlord the incentive of getting his rent if he complies with the Code regulations.

At common law, the tenant could never justifiably withhold rent until the landlord made repairs because his rental obligation was not dependent on any services performed by the landlord besides delivery of the property to the tenant. However, both the courts in rendering decisions such as those in the Ingalls case, 156 Mass. 348, and the Burt case, 340 Mass. 124, supra, and the Legislature in enacting the rent withholding provisions, have retreated from the fundamental common law assumption on which the independent covenants rule is based, namely, that a lease is primarily a conveyance of an interest in real estate. By fixing a clear duty of repair on the landlord before the landlord can recover withheld rent in those cases where the demised premises are in violation of the standards of fitness for human habitation established under the State Sanitary Code, the Massachusetts Legislature has further weakened⁹ the old common law rule that the tenant’s obligation to pay rent is totally independent of any obligation the landlord may bear.

Thus, we are confronted with a situation where the legislation’s “establishment of policy carries significance beyond the particular scope of each of the statutes involved.” Moragne v. States Marine Lines, Inc. 398 U. S. 375, 390. As Professor James Landis noted in his essay, Statutes and the Sources of Law, Harvard Legal Essays (1934), pp. 222-223, “Doctrines of common law dealing with the relationship betwen individuals will often be seen to hinge upon a conception as to the position that one party is to occupy in our social structure. This becomes solidified into a concept of status. But obviously status has no meaning apart from its incidents. These incidents, often so numerous as to escape description, have a varying importance in shaping the nucleus of a status. The alteration of some of them possesses no importance beyond the change itself; the alteration of others, however, may call for a radical revision of the privileges or disabilities that have generally been attached to a particular status. The common-law incidents of status, that in their origin have themselves been of empiric growth, must then give way before the new aims deducible from such a basic alteration.

“Changes of this nature are commonly the product of legislation. The statutes that express them rarely directly make or alter a status as such; nor do the statutes often see the seamlessness of the pattern that they seek to change. The task of modifying the existing body of the law to fit the structural changes must of necessity be left to courts with the hope that given an end they will mould substantive doctrine to make it effective.”

The independent covenants rule was the most important logical incident flowing from the common law’s conception of the lease as a conveyance of an interest in real estate. Although c. 239, § 8A, did not abrogate the independent covenants rule, it drastically altered most of the logical incidents flowing from the lease’s old status as property conveyance by allowing rent withholding, a remedy which reflects the Legislature’s judgment that the tenant should be paying rent only for habitable premises. This legislative alteration of the most important incident of the common law status of a lease as a property conveyance requires a judicial reappraisal¹⁰ of the common law status itself because the Legislature’s actions reflect a characterization of the landlord-tenant relationship that radically differs from the status accorded to it by the common law.

Our reexamination leads us to conclude that the exception to the independent covenants rule carved out by the Ingalls case, 156 Mass. 348, supra, in response to what was then an unusual situation, must now become the rule in an urban industrial society where the essential objective of the leasing transaction is to provide a dwelling suitable for habitation. The old common law treatment of the lease as a property conveyance and the independent covenants rule which stems from this treatment have outlived their usefulness. The urban tenant in a multiple dwelling unit cares little about the property interest he has acquired. Modern tenants, rightfully expect that the premises they rent, whether furnished or unfurnished, will be suitable for occupation. In Javins v. First Natl. Realty Corp. 428 F. 2d 1071 (D. C. Cir. 1970), the court justified in part its decision that all leases for dwellings imply a warranty of habitability¹¹ by demonstrating how the factual assumptions underlying the Ingalls case exception to the independent covenants rule were in closer harmony to modern housing patterns than the old common law assumption that a property conveyance was the essential objective of the transaction.

“It is overdue for courts to admit that these assumptions are no longer true with regard to all urban housing. Today’s urban tenants, the vast majority of whom live in multiple dwelling houses, are interested, not in the land, but solely in 'a house suitable for occupation.’ Furthermore, today’s city dweller usually has a single, specialized skill unrelated to maintenance work; he is unable to make repairs like the ‘jack-of-all-trades’ farmer who was the common law’s model of the lessee. Further, unlike his agrarian predecessor who often remained on one piece of land for his entire life, urban tenants today are more mobile than ever before. A tenant’s tenure in a specific apartment will often not be sufficient to justify efforts at repairs. In addition, the increasing complexity of today’s dwellings renders them much more difficult to repair than the structures of earlier times. In a multiple dwelling repair may require access to equipment and areas in the control of the landlord. Low and middle income tenants, even if they were interested in making repairs, would be unable to obtain any financing for major repairs since they have no long-term interest in the property.” Javins v. First Natl. Realty Corp. at 1078-1079.

The opinion in the Javins case reflects the view expressed in recent cases and law review articles12 which rejects the old common law’s conception of the lease as a property transaction. The modern view favors a new approach which recognizes that a lease is essentially a contract between the landlord and the tenant wherein the landlord promises to deliver and maintain the demised premises in habitable condition and the tenant promises to pay rent for such habitable premises. These promises constitute interdependent and mutual considerations. Thus, the tenant’s obligation to pay rent is predicated on the landlord’s obligation to deliver and maintain the premises in habitable condition.

This modern view that the common law should imply warranties of habitability in all leases is supported by the Massachusetts Legislature’s reforms in the landlord-tenant area which reflect the Legislature’s view that rent is paid for habitable premises and not for an interest in real estate. General Laws c. Ill, §§ 127A-127F and 127H, and G. L. c. 239, § 8A, have already-encroached to some degree on the common law rules of caveat emptor and independent covenants. If we fail to repudiate the underlying common law concept of a lease which fostered the independent covenants rule, the landlord-tenant law in Massachusetts will remain in an illogical state because our statutory and common law will be based on differing conceptual assumptions as to the essential nature and consequences of a lease. As the Wisconsin Supreme Court noted in Pines v. Perssion, 14 Wis. 2d 590, 595-596: “[T]he legislature has made a policy judgment — that it is socially (and politically) desirable to impose these duties on a property owner — which has rendered the old common-law rule obsolete. To follow the old rule of no implied warranty of habitability in leases would, in our opinion, be inconsistent with the current legislative policy concerning housing standards.”

Therefore, we hold that in a rental of any premises for dwelling purposes, under a written or oral lease, for a specified time or at will, there is an implied warranty that the premises are fit for human occupation. “This means that at the inception of the rental there are no latent [or patent] defects in facilities vital to the use of the premises for residential purposes and that these essential facilities will remain during the entire term in a condition which makes the property livable.” Kline v. Burns, 111 N. H. 87, 92. This warranty (in so far as it is based on the State Sanitary Code and local health regulations) cannot be waived by any provision in the lease or rental agreement.

Remedies for the Landlord’s Breach of the Implied Warranty of Habitability.

2. Since we hold that the tenant’s covenant to pay rent is dependent on the landlord’s implied warranty of habitability, there is no need for a constructive eviction defence to justify the tenant’s decision to stop paying rent. “The doctrine of constructive eviction as an admitted judicial fiction, ... no longer serves its purpose when the more flexible concept of implied warranty of habitability is legally available.” Lemle v. Breeden, 51 Hawaii 426, 434.

Thus, instead of pleading constructive eviction as a defence to the landlord’s action to recover rent, the tenant has recourse to the following contractual rights and remedies¹³ afforded by the warranty of habitability:¹⁴

(1) The tenant can sue the landlord and ask for rescission of his written lease from the point in time that the breach of the implied warranty of habitability first arose. The existence of a material breach will be a question of fact to be determined in the circumstances of each case.¹⁵ Factors (not necessarily all inclusive) aiding the court’s determination of the materiality of an alleged breach of the implied warranty of habitability include: (a) the seriousness of the claimed defects and their effect on the dwelling’s habitability;¹⁶ (b) the length of time the defects persist; (c) whether the landlord or his agent received written or oral notice of the defects;¹⁷ (d) the possibility that the residence could be made habitable within a reasonable time;¹⁸ and (e) whether the defects resulted from abnormal conduct or use by the tenant. If the court found a material breach of warranty, the tenant would be permitted to terminate the lease and recover any security deposits made; although he will be liable for the reasonable value, if any, of his use of the premises for the time he was in possession. See Lemle v. Breeden, 51 Hawaii 426; Pines v. Perssion 14 Wis. 2d 590, 597.

(2) If the tenant wishes to keep his lease and continue to occupy the premises, he can initiate proceedings under c. Ill, §§ 127A-127H, or withhold rent pursuant to the procedures established by c. 239, § 8A. If the landlord remedies the defects, he will recover the withheld rent. This result follows from the purpose of the statute. The tenant is allowed to withhold rent to induce the landlord to remedy the conditions rendering the premises uninhabitable. The landlord’s incentive to repair comes from the knowledge that such action taken before trial will guarantee his full recovery of the withheld rent.

However, as we noted in Appelstein v. Quinn, 361 Mass. 861, these remedial statutes do not have any substantive effect on the tenant’s rental obligations under the common law. Therefore, if the tenant’s § 8A defence prevails, any withheld rent that had been paid into court must be returned to the tenant because the tenant’s rental obligation depended on the landlord’s warranty of habitability which has been broken. In these circumstances, the landlord’s breach, since it goes to the essence of the contract, renders the lease voidable at the tenant’s election.¹⁹ If the tenant elects to stay on for the rest of the term and the landlord promptly cures his breach by remedying the defective conditions, the tenant’s rental obligation for the remainder of the term will be revived when the dwelling becomes habit-: able. If the tenant elects to stay on until the end of the term and the landlord makes no repairs, the tenant will be liable for the reasonable value, if any, of his use of the premises for the time he remains in possession. See Lemle v. Breeden, 51 Hawaii 426; Pines v. Perssion, 14 Wis. 2d 590, 597.

(3) If the tenant fails to follow c. 239, § 8A’s procedures, his refusal to pay some or all of the rent due will subject him to eviction proceedings to which he will have no defence. This result follows from the Legislature’s sound policy judgment that the landlord needs the incentive of recovering the rent due him to promote prompt repairs. Thus, the tenant is faced with two alternative remedies with different consequences. If he is more concerned about getting his dwelling repaired than getting his rent abated or extinguished, he should follow the procedures established by c. 239, § 8A. If the tenant fails to follow these procedures, he cannot use the landlord’s breach of the habitability warranty as a defence to a notice to quit for nonpayment of rent. However, though the landlord may, in that case, evict the tenant, the tenant may raise the landlord’s breach of his warranty of habitability as a partial or complete defence to the landlord’s claim for rent owed for the period when the dwelling was in uninhabitable condi-tian and the landlord or his agent had written or oral notice of the defects.²⁰ The tenant’s claim or counterclaim for damages based on this breach would be the difference between the' value of the dwelling as warranted (the rent agreed on may be evidence of this value) and the value of the dwelling as it exists in its defective condition.²¹

In the instant cases, the defendants failed to comply with the notice requirement of c. 239, § 8A. Therefore, we sustain the Superior Court judge’s ruling that the tenants cannot raise the statute as a defence to the landlord’s action of summary process.

However, the landlord’s breach of its implied warranty of habitability constitutes a total or partial defence to the landlord’s claim for rent being withheld, depending on the extent of the breach. The tenants’ claim for damages based on this breach by the landlord should be limited to the period of time that each apartment remained uninhabitable after the landlord had notice of the defects. The measure of damages would be the difference between the value of each apartment as warranted and the rental value of each apartment in its defective condition.

The cases are remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.

1 The defendant tenants are Ruth Hemingway and Ruth Briggs.

2 The tenants claimed that their apartments had, among other defects, leaking ceilings, wet walls, improper heating, and broken doors and windows, and were infested with rodents and vermin.

3 Since Ruth Briggs vacated her apartment on September 30, 1970, her exceptions in essence are based on the finding by the trial judge for the landlord for $1,200.

4 General Laws c. 239, § 8A, as appearing in St. 1967, c. 420, § 1, states in pertinent part: “There shall be no recovery under this chapter, pursuant to a notice to quit for nonpayment of rent ... of any tenement rented or leased for dwelling purposes if such premises are in violation of the standards of fitness for human habitation established under the state sanitary code . . . and if such violation may endanger or materially impair the health or safety of persons occupying the premises; provided, however (1) that the person occupying the premises, while not in arrears in his rent, gave notice in writing to the person to whom he customarily paid his rent (a) that he would, because of such violation, withhold all rent thereafter becoming due until the conditions constituting such violations were remedied and (b) that a report of an inspection of such premises has been issued by the board of health . . . which report states that such violation exists and that it may endanger or materially impair the health or safety of persons occupying said premises; (2) that such violation was not caused by the person occupying the premises . . .; (3) that the premises are not situated in a hotel or motel; nor in a lodging house or rooming house wherein the person occupying the dwelling unit has maintained said occupancy for less than three consecutive months; and (4) that the conditions constituting the violation can be remedied without the premises being vacated. . . .”

5 In 1969, the Legislature amended § 8A to allow written notification of Code violations to the landlord from the appropriate local agency (such as the Boston housing inspection department) to satisfy the tenant’s obligation to notify the landlord. Since they began withholding rent after the landlord had received notice of the Code violations, the tenants in the instant cases could have properly raised c. 239, § 8A, as a defence if the amendment applied to them. However, the amendment was enacted after the tenants had started to withhold rent and therefore did not apply to them. See St. 1969, c. 355, approved May 27, 1969, effective ninety days thereafter.

6 Article II of the State Sanitary Code was originally adopted by the Department of Public Health on September 13, 1960, in the exercise of authority granted by G. L. c. Ill, § 5. By St. 1965, c. 898, §§ 1, 3, that authority was eliminated from § 5 and placed instead in a new § 127A inserted in c. 111. Section 127A was amended by St. 1971, c. 261.

7 Both G. L. c. 111, §§ 127C-127F and 127H, and G. L. c. 239, § 8A, were approved on the same day, January 7,1966.

8 General Laws c. Ill, §§ 127A-127H, expressly provides that any balance of rental payments remaining after the costs of repairs have been deducted is returned to the lessor. Though there is no comparable provision in c. 239, § 8A, we noted in Appelstein v. Quinn, 361 Mass. 861, that c. 239, § 8A, “does not permanently deprive a landlord of the rent but only permits the tenant to withhold it until the stated violations are corrected.”

9 However, c. 239, § 8A, and c. Ill, §§ 127A-127H, have not abrogated the independent covenants rule. See Rubin v. Prescott, 362 Mass. 281, 286, fn. 4, where we noted that the State Sanitary Code did not abrogate the lessor’s common law rights to recover possession when the premises did not comply with the minimum standards of the Code for dwelling purposes. If the Sanitary Code did not abrogate the common law rule of independent covenants, it seems logical to conclude that remedial legislation designed to aid enforcement of the Code has not repealed the common law rule. For similar treatment of a New York rent withholding statute’s impact on landlord-tenant common law, see Davar Holdings, Inc. v. Cohen, 255 App. Div. (N. Y.) 445, affd. 280 N. Y. 828; Matter of Himmel v. Chase Manhattan Bank, 47 Misc. 2d (N. Y.) 93, 96; Matter of De Koven v. 780 West End Realty Co. 48 Misc. 2d (N. Y.) 951; 176 East 123rd St. Corn. v. Flores, 65 Misc. 2d (N. Y.) 130.

10 The Boston Housing Authority argues that even if there is an implied warranty of habitability, c. 239, § 8A, offers tenants the exclusive remedy for its breach. However, there is no evidence to indicate that the Legislature intended the limited" remedy afforded by c. 239, § 8A, to exclude appropriate additional remedies created by changes in the common law.

This conclusion is supported by recent judicial decisions to reform the landlord-tenant common law rules in States which have rent withholding statutes. All of these decisions are predicated on the implied assumption that remedial legislation designed to promote safe and sanitary housing does not preclude the courts from fashioning new common law rights and remedies to facilitate the policy of safe and sanitary housing embodied in the withholding statutes. See Hinson v. Delis, 26 Cal. App. 3d 62; Amanuensis Ltd. v. Brown, 65 Misc. 2d (N.Y.) 15; Jackson v. Rivera, 65 Misc. 2d (N. Y.) 468; Morbeth Realty Corp. v. Rosenshine, 67 Misc. 2d (N. Y.) 325. In Jack Spring, Inc. v. Little, 50 Ill. 2d 351, the Illinois Supreme Court expressly rejected the landlord’s claim that the tenant’s request for far reaching changes in landlord-tenant law “is appropriate for legislative rather than judicial consideration.” P. 357. Despite the Legislature’s passage of a rent withholding statute, 111. Rev. Sts. c. 23, § 11-23, that court noted that there was no need to defer to future legislative' reforms of old common law rules in the landlord-tenant area. “A rule which in its origin was the creation of the courts themselves, and was supposed in the making to express the mores of the day, may be abrogated by courts when the mores have so changed that perpetuation of the rule would do violence to the social conscience. . . . This is not usurpation. It is not even innovation. It is the reservation for ourselves of the same power of creation that built up the- common law through its exercise by the judges of the past.” Justice Cardozo, The_ Growth of the Law, c. IV, p. 136, cited at p. 367 of the Jack Spring case.

11 We face a slightly different situation from that which confronted the court in the Javins case, supra. At the time of the Javins decision, the Washington, D. C., Code did not contain any rent withholding provisions which the tenants could implement when their apartments were in uninhabitable condition. The Code merely provided for criminal sanctions by public agencies when landlords maintained their apartments in violation of the Code. Thus, the Javins case holding, which granted tenants private rent withholding powers and contractual remedies which could abate or extinguish their rental obligations, constituted a judicial reform of landlord-tenant common law which radically expanded the scope of remedies previously available to the tenant under the housing codes. Since the Massachusetts Legislature has already passed a rent withholding statute, a decision to grant alternative rent abatement or suspension remedies would constitute a far less radical alteration of existing tenant remedies than that accomplished by the Javins decision.

12 See Javins v. First Natl. Realty Corp. 428 F. 2d 1071 (D. C. Cir.) ; Hinson v. Delis, 26 Cal. App. 3d 62; Lemle v. Breeden, 51 Hawaii 426; Jack Spring, Inc. v. Little, 50 Ill. 2d 351; Kline v. Burns, 111 N. H. 87; Marini v. Ireland, 56 N. J. 130; Morbeth Realty Corp. v. Rosenshine, 67 Misc. 2d (N. Y.) 325; Pines v. Perssion, 14 Wis. 2d 590; Notes, 40 Fordham L. Rev. 123; Notes, 56 Cornell L. Rev. 489; Recent Developments, (1970) Duke L.J. 1040.; Notes, 21 Drake L, Rev. 300; 52 Mass. L. Q. 205. See also American Bar Foundation Tent. Draft-Model Residential Landlord-Tenant Code (1969); Uniform Residential Landlord-Tenant Act, §§ 2.103, 2.104 (1972).

13 Since these cases did not raise any question of tort liability,_ we need not consider the effect this continuing warranty of habitability may have on the landlord’s liability for injuries to the tenant or his guests which result from conditions rendering the apartment uninhabitable.

14 By discussing the outline of remedies now available to a tenant, we do not purport to forecast all the changes that will arise from our new common law rule.

15 A housing inspection report which certifies that Code violations exist which “may endanger or materially impair the health or safety, and the well-being of any tenant therein or persons occupying said property” would constitute evidence of a material breach and the landlord’s notice of that breach.

16 The State Sanitary Code’s minimum standards of fitness for human habitation and any relevant local health regulations provide the trial court with the threshhold requirements that all housing must meet. Proof of any violation of these regulations would usually constitute compelling evidence that the apartment was not in habitable condition, regardless of whether the evidence was sufficient proof of a constructive eviction under our old case law. However, the protection afforded by the implied warranty of habitability does not necessarily coincide with the Code’s requirements. There may be instances where conditions not covered by the Code regulations render the apartment uninhabitable. Although we have eliminated the defence of constructive eviction in favor of. a warranty of habitability defence, a fact situation, which could have demonstrated a constructive eviction, would now be sufficient proof of a material breach of the warranty of habitability, regardless of whether a sanitary code violation existed or not. On the other hand, there may be instances of isolated Code violations which may not warrant a decision that the premises are uninhabitable. The trial court must have the same broad discretion to determine whether there is a material breach given the special circumstances of each casé as that accorded the board of health under Reg. 39 of the Code which allows the board to vary the application of any provision with respect to a particular case.

17 Where one tenant gives the landlord notice of a defect which affects the habitability of other tenant’s apartments, the other tenants may rely on the first tenant’s notice.

18 If the premises are uninhabitable at the beginning of the lease’s term and the tenant decides to rescind the lease immediately, factors (c) and (d) should not be considered because the landlord is obligated to deliver the premises in a condition fit for immediate occupation.

19 It is doubtful that a tenant at will, with a brief term between rent days, would utilize this remedy.

20 The tenant may avoid the risk of eviction by paying his rent when due under protest and then sue the landlord to recover some or all of it because of the landlord’s breach of his warranty.

21 This remedy is quite similar to the one we afforded the tenant in Charles E. Burt, Inc. v. Seven Grand Corp. 340 Mass. 124, 130. “The appropriate measure of damage thus is the difference between the value of what Burt should have received and the fair value of what it has in fact received.” See Grennan v. Murray-Miller Co. 244 Mass. 336, 339; Daniels v. Cohen, 249 Mass. 362, 364; Parker v. Levin, 285 Mass. 125, 128; Corbin, Contracts, §§ 1105, 1108, 1114, 1115; McCormick, Damages, § 142, p. 586; Williston, Contracts (3d ed.) §§ 1404, 1455, et seq. See also Am. Law of Property, §§ 3.51-3.52.