Warranty Of Habitability Case Study

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I. Warranty of Habitability "In a rental of any premises for dwelling purposes . . . there is an implied warranty that the premises are fit for human occupation." Bos. Hous. Auth. v. Hemingway, 293 N.E.2d 831(1973). The warranty of habitability covers the common areas, see McKenna v. Begin, 362 N.E.2d 548, 553 (1977), but "includes only the physical maintenance and repair of a dwelling unit." Doe v. New Bedford Hous. Auth., 630 N.E.2d 248, 253 (1994). Because the freedom from sexual harassment does not concern the physical fitness of the premises, the warranty of habitability does not apply in our case. Smith admitted that she had no complaints about the apartment's physical condition but moved out due to a concern of personal safety. Similarly …show more content…
II. Constructive Eviction To constitute constructive eviction, "there must be some act of permanent character done by the landlord with the intent and effect of depriving the tenant of enjoyment of the premises or some part thereof, to which the tenant yields, abandoning the premises within a reasonable time." Tracy v. Long, 3 N.E.2d 789, 791 (1936). Smith can reasonably expect to prove in trial the above elements, which are not directly negated by contradictory evidence. Hence she can raise issues of material facts with respect to each element, the first three of which will be discussed below. A. The sexual harassment that Smith suffers from can be seen as permanent in nature Permanency concerns the persistency and time length of the issue; "[t]he law requires substantial or ongoing interference with the tenant's use of the leased property." Apple D'Or Tree, Inc. v. Webster-Dudley Sand & Gravel, Inc., 24 Mass. L. Rep. 49 (Mass. 2008). See Westland Hour. Corp. v. Scott, 44 N.E.2d 959 (1942) (failure to repair a defective oil burner over a three-month period); Charles E. Burt, Inc. v. Seven Grand Corp., 163 N.E.2d 4 (1959) (no electricity, sufficient heat and elevator over a six-month period). An isolated incident would not satisfy the requirement of permanent nature. See Tracy, 3 N.E. 2d (a single incident of a pipe disconnection that deprived the tenant of hot water for three or …show more content…
B. Day arguably caused harm to Smith intentionally by failing to take effective actions In an analysis of intent, it is "the landlord's conduct, and not his intentions", that is controlling. Blackett v. Olanoff, 4358 N.E.2d 817, 818 (1977). Rather than looking for subjective intent, the court determines whether the act "is the natural and probable consequence of what the landlord did, failed to do, or permitted to be done. Doe, 630 N.E.2d at 255. Thus a landlord may intentionally violate a tenant's right without subjective intent. To prove Day's intent, Smith needs to show that Day had the power and duty to intervene but acted negligently. 1. Day has the power and duty to interfere with Krej's conduct to prevent harm to

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