Yegian v. Isadore

1985 Mass. App. Div. 156, 1985 Mass. App. Div. LEXIS 27
CourtMassachusetts District Court, Appellate Division
DecidedJuly 29, 1985
StatusPublished
Cited by2 cases

This text of 1985 Mass. App. Div. 156 (Yegian v. Isadore) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Yegian v. Isadore, 1985 Mass. App. Div. 156, 1985 Mass. App. Div. LEXIS 27 (Mass. Ct. App. 1985).

Opinion

Banks, J.

This is a matter in contract arising from the lease of certain premises owned by the defendant in Harwichport, Barnstable County on Cape Cod. On April 24, 1982, the plaintiff executed a lease for the rental of that property, a year-round home, for the period commencing July 31,1982 and ending September 11,1982. The lease was negotiated through a broker, Barnes Cape Cod Realty of Harwichport, and was forwarded to, and duly signed by, the defendant who resided in the state of Virginia. The plaintiff seeks to recover rent paid and statutory damages pursuant to G.L. c. 93A and c. 186, §14.

The subject property has been owned by the defendant since September, 1962. During the defendant’s first two years of ownership, he and his family. occupied the property as their primary residence during the summer months and occasionally resided there in the winter. The defendant used the subject property for approximately one-half of the following two summer seasons and rented the propertyfor the remainder thereof. From 1965 through 1973, the defendant utilized the property as his family’s principal place of residence in the United States while he worked overseas as an employee of the United States Department of Commerce. From September, 1973 through September, 1975, the defendant and his family continued to occupy the Cape Cod house as their principal residence. From 1976 through 1983, the property was rented during the summer months.

At various times during the defendant’s ownership of the subject property, Barnes Cape Cod Realty leased the premises to others on his behalf for all or part of the summer season. Barnes in fact served as the defendant’s “exclusive agent” for the lease and handling of this property.

During the summer in question, the defendant occupied the premises for his own use during the first two weeks of June, and then leased the house to a third partyfor the six week period between June 15to July 30,1982. Plaintiff Yegian thereafter leased the premises for the six week period from July 31 to September 11,1982. The plaintiffs lease was negotiated by Barnes Realty. The plaintiff paid half of the rental amount in advance and the balance upon his 1 arrival to take possesson of the premises. The total rent agreed-upon and paid for the six week period was $2,750.00.

The controversy which forms the basis of this action arose from the [157]*157observation made by the plaintiff and his wife of mouse droppings on the counter and in other parts of the kitchen on the first day of the Yegians’ occupancy under the lease. The plaintiffs promptly notified Barnes Realty and were assured that if further problems of this nature were encountered, they would arrange for extermination. The plaintiff testified that he and his wife next saw a mouse in the kitchen on Saturday, August 7, 1982. The plaintiff notified Barnes Realty and returned to his home in Lexington, Massachusetts while the house was being exterminated through the use of chemical agents and baited traps. A week later the plaintiffs returned to the premises after being assured by Barnes Realty that a professional exterminator had worked at the house. Upon their return to the house on August 14, 1982, however, the plaintiffs reported that they again saw a mouse, whereupon they immediately left the premises. The plaintiffs returned the keys to the property to Barnes Realty on August 19, 1982 and requested a termination of their lease.

No portion of the rental amount was ever returned to the plaintiff who thereafter commenced the instant suit claiming a breach of the lease by the defendant by virtue of the presence of mice on the premises. In count 2 of his complaint, the plaintiff alleged that the letting of the premises under such circumstances constituted an unfair and deceptive act in violation of G. L. c. 93A. The plaintiff also asserted that the presence of the mouse or mice violated provisions of G. L. c. 186, §14 pertaining to an implied warranty of habitability of leased premises thereby entitling the plaintiff to the monetary sanctions provided by that statute. The parties’ lease also contained an express warranty of habitability. The defendant brought a counterclaim for breach of contract, and also filed a Dist./Mun. Cts. R. Civ. P. Rule, 56 motion for partial summaryjudgment on the plaintiffs c. 93A claim. The trial court allowed defendant’s summaryjudgment motion on count two, and found for the plaintiff after hearing in the amount of $458.50 under count one for breach of contract.

The plaintiff now claims to be aggrieved by the court’s allowance of the following two rulings requested by the defendant:

“3. As a matter of law, the plaintiff is not entitled to recover under any theory pursuant to G.L.c. 93A, § 1 et seq.
“4. G. L. c. 186, § 14 does not apply to the circumstances ofthis case.”

These rulings, taken together with the allowance of the defendant’s Rule 56 motion for summaryjudgment, raise questions as to whether the applicable law has been properly applied in this matter.

The trial court’s rulings on defendant’s request numbers 3 and 4 and on defendant’s Rule 56 motion for summaryjudgment constitute a finding that neither G. L. c. 186, §14, nor G. L. c. 93A, were applicable to this case as a matter of law. We find that this determination was improperly overbroad and hereby vacate the court’s judgment in its entirety.

General Laws c. 93A, §2(a) declares unlawful any “unfair or deceptive acts or practices in the conduct of any trade or commerce. ...” A threshold determination to be made by any trial court in its consideration of a suit predicated on the consumer protection provisions of c. 93A, § 9 is whether the defendant is in the trade or business of pursuing the practice from which the alleged unfairness or deception is deemed to flow. This essential categorization of the defendant as one engaged in “trade or commerce” derives from the fundamental purpose of G. L. c. 93A which is to extend protection to the uninitiated consumer who deals in a business context with individuals more knowledgeable and skilled in the complexities, and perhaps wiles, of a [158]*158particular market situation. The basic policy of c. 93A is “to regulate business activities toward the end of providing proper disclosure of information and a more equitable balance in the relationship of consumers to persons conducting business activities.” Commonwealth v. DeCotis, 366 Mass. 234, 238 (1974). See also McGrath v. Mishara, 386 Mass. 74, 85 (1982); Lowell Gas v. Attorney General, 377 Mass. 37, 51 (1979).

A resolution of the preliminary “trade or commerce” question in every c. 93A case thus becomes one of determining if one party enjoys such a marked advantage over the other that any inequity or unfair dealing in the bargaining result is to be dealt with punitively. It may be stated as a general proposition that a person who sells or leases real property may be considered engaged in “trade or commerce.” See, e.g., Linthicum v. Archambault, 379 Mass. 381, 387 (1979). It is also clear, however, that the consumer protection statute does not apply to transactions involving equally expert or inexpert negotiators. In Lantner v. Carson, 374 Mass. 606 (1978), which involved a single sale of a house by private individuals, the Supreme Judicial Court ruled that G. L. c. 93A does not pertain to transactions which are strictly private in nature and not undertaken in a business context.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

F.C. Construction Corp. v. J.A. Cataldo Corp.
2000 Mass. App. Div. 295 (Mass. Dist. Ct., App. Div., 2000)
Flatte v. Carifio
1997 Mass. App. Div. 89 (Mass. Dist. Ct., App. Div., 1997)

Cite This Page — Counsel Stack

Bluebook (online)
1985 Mass. App. Div. 156, 1985 Mass. App. Div. LEXIS 27, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yegian-v-isadore-massdistctapp-1985.