Layes v. RHP Properties, Inc. ( 2019 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
18-P-218 Appeals Court
ROSA LAYES1 & another2 vs. RHP PROPERTIES, INC., & another.3
No. 18-P-218.
Middlesex. November 14, 2018. - August 28, 2019.
Present: Hanlon, Massing, & Ditkoff, JJ.
Mobile Home. Manufactured Housing Community. Oil and Gas.
Regulation. Consumer Protection Act, Unfair or deceptive
act, Class action. Practice, Civil, Summary judgment,
Class action, Consumer protection case.
Civil action commenced in the Superior Court Department on
April 22, 2015.
Motions for summary judgment were heard by Kenneth J.
Fishman, J.; a motion for class certification was heard by S.
Jane Haggerty, J.; and the entry of judgment was ordered by
Fishman, J.
1 On behalf of herself and all others similarly situated.
2 Francis Layes.
3 Chelmsford Group, LLC. The defendants' third-party claims
against Gagnon Brothers Oil Company, Inc., and Leo Marchand,
Inc., doing business as Colonial Oil, successor in merger
between Chelmsford Colonial Oil, Inc., and Leo Marchand, Inc.,
were dismissed, and the defendants have withdrawn their appeal
from that decision. The third-party defendants have not
participated in this appeal.
2
Ethan R. Horowitz for the plaintiffs.
Trevor J. Keenan for the defendants.
Maura Healey, Attorney General, & Daniel A. Less, Assistant
Attorney General, for the Attorney General, amicus curiae,
submitted a brief.
HANLON, J. RHP Properties, Inc. (RHP Properties), a large
owner and operator of manufactured housing communities, has a
nationwide policy requiring its residents to pay for the
maintenance, repair, and replacement of their privately-owned,
individually-metered fuel tanks. The main question posed in
this appeal is whether that policy passes muster under the
provisions of the Manufactured Housing Act, G. L. c. 140,
§§ 32A-32S (act), and the Attorney General's regulations
promulgated thereunder, 940 Code Mass. Regs. §§ 10.00 (1996)
(Attorney General's regulations).4,5 A judge of the Superior
Court decided that it did not, and entered judgment for the
individual plaintiffs, Rosa and Francis Layes. We agree with
that decision, but conclude that the denial of Rosa's6 motion for
class certification by another judge (motion judge) constituted
4 We acknowledge the amicus brief submitted by the Attorney
General.
5 All citations to 940 Code Mass. Regs. §§ 10.00 are for the
year 1996.
6 To avoid confusion, we refer to Rosa and Francis Layes
individually by their first names.
3
an abuse of discretion. Accordingly, we affirm in part and
reverse in part.
Background. None of the operative facts is in dispute.
Rosa and Frank Layes live at Chelmsford Commons, a manufactured
housing community with approximately 250 home sites (Chelmsford
Commons or CC park).7,8 The Layeses, like some eighty percent of
the CC park residents, heat their manufactured home primarily
with oil, which is stored in an above-ground tank situated on a
cement pad adjacent to their home. The oil tank serves only
their home.9 Pursuant to their lease agreement, the Layeses and
all CC park residents are responsible for purchasing their own
fuel oil.
In 2006, the Layeses purchased a new tank. The CC park
rules at the time tied utility maintenance duties to the
location of the systems; the park's operators were responsible
for everything on the exterior of the homes, while residents
7 Consistent with the unique nature of manufactured housing
community living, the Layeses own their home, but rent the land
on which their home sits.
8 The majority of the CC park residents are elderly or
disabled, and receive low to moderate income.
9 The oil tank was situated eight inches from the home in
plain view from the home's rear window; it had a fuel gauge on
top.
4
were responsible for everything in the interior.10 However,
par. 9.h of the rules specifically required the residents to
maintain their own oil tanks.11
In April, 2011, RHP Properties purchased the CC park
through the Chelmsford Group, LLC (Chelmsford Group)
(collectively, defendants).12 Thereafter, a document titled
"Chelmsford Commons Rules and Regulations," dated April 22,
2011, was circulated to the park residents showing that par. 9.h
had been deleted. (Paragraph 9 otherwise remained unchanged.)
10Paragraph 9 of the Rules of Chelmsford Mobile Home Park,
effective September 30, 2008, the provision governing utilities,
stated that
"a. . . . The owner/operator shall provide, pay for,
maintain, and repair systems for providing water, sewage
disposal, and electricity up to the point of connection
with each manufactured home, in accordance with applicable
laws"; and
"b. . . . The tenants are responsible for paying for the
maintenance and repair of utilities from the point of
connection to the manufactured home to the inside of the
home."
11Paragraph 9.h of the Rules of Chelmsford Mobile Home
Park, effective September 30, 2008, stated:
"Oil Barrels: Tenants are responsible for the
maintenance and upkeep of their oil tanks and are
responsible for complying with all city and state
ordinances."
12RHP Properties, the Chelmsford Group, and their property
manager qualify as owners and "operators" of a manufactured
housing community for purposes of the act. See 940 Code Mass.
Regs. § 10.01.
5
The Attorney General later approved the March, 2013, version of
these rules, which contained the same allocation of maintenance
duties as the 2011 rules and regulations.13
Notwithstanding these "official" CC park rules, the
defendants implemented a policy placing all burdens and costs
associated with the home heating oil systems on the residents.14
The defendants required new and renewing residents to sign
standard lease agreements that made the residents responsible
for "the maintenance and replacement of any above ground oil or
fuel storage tanks." The policy was described in an "addendum"
to the park rules and was posted in the park management office.
13No park rule may be implemented without first submitting
the proposed rule to both the Attorney General and the Director
of the Department of Housing and Community Development for
approval. See G. L. c. 140, § 32L (5). There is evidence in
the record that, dating back to 1998, two years after the
Attorney General's regulations were promulgated, the Attorney
General's Office interpreted the regulations to place the duty
to install, repair, and maintain above-ground oil tanks on the
park owner.
14The Chelmsford Commons policy is consistent with RHP
Properties' nationwide policy to hold park residents responsible
for all aspects of their oil tanks, including maintenance,
repair, replacement, and remediation work in the event of spills
-- irrespective of the residents' negligence or misconduct.
Joseph Carbone, an RHP Properties vice president, likened the
fuel tanks to privately-owned automobiles. According to
Carbone, if a privately-owned automobile leaks oil all over the
home site, the resident should be responsible for the clean-up
costs. RHP Properties applies the same reasoning to home
heating fuel tanks.
6
The defendants admit that at no time have they maintained,
repaired, or replaced any exterior components of the residents'
home heating oil systems in the CC park. They have required the
residents to do the following with respect to the exterior
components: (1) the sanding and painting of rusted oil tanks;
(2) the connection of the tanks to the homes and the removal of
unused tanks; and (3) the installation of either protective
sleeves on the fuel lines connecting the tanks to the homes or
oil safety valves.15 Many residents who failed to perform this
work at their own cost were threatened with legal action or were
sued by the defendants.
On May 21, 2014, the Layeses smelled oil on their home
site. Francis discovered oil leaking from the bottom of the
tank. The Layeses immediately placed a container under the tank
to catch the oil, and notified CC park maintenance employee
Ronald Hennessey and their oil supplier, Gagnon Brothers Oil
Company (Gagnon). A Gagnon employee responded and pumped the
remaining oil in the tank into a temporary transfer tank. The
compromised tank was removed from the site and destroyed.
Thereafter, Hennessey and an RHP Properties manager informed
Rosa that it was the Layeses' duty to replace the tank. The
15The third requirement was imposed in order to bring all
oil tanks in the CC park into compliance with G. L. c. 148,
§ 38J (b). See St. 2008, c. 453, § 3, effective September 30,
2011.
7
Layeses, who had two small children, could not afford the cost
of a new tank. In September, 2014, the defendants rented a
temporary tank for the Layeses and had it connected to their
home.
When Rosa attempted to schedule an oil delivery in January,
2015, Gagnon refused to provide additional oil until the Layeses
purchased a new permanent tank. Although Rosa contacted other
oil suppliers, she was unable to find a supplier who would fill
the temporary tank. For the rest of the 2015 heating season,
the Layeses rationed their remaining oil supply. The
temperature in their home routinely fell into the 50s (degrees,
Fahrenheit) in the mornings. On August 24, 2015, the Layeses
observed the Chelmsford Commons manager and a third party
disconnect, drain, and remove the temporary tank from their home
site.
Legal proceedings. On April 22, 2015, the Layeses filed a
complaint, alleging that the defendants' failure to maintain,
repair, and replace the exterior components of their home
heating system (and those of the other residents of the CC park)
violated the act, the Attorney General's regulations, and G. L.
cc. 93A and 186. The defendants asserted counterclaims against
the Layeses, alleging negligence and liability under G. L.
c. 21E for the cleanup costs arising from the release of oil on
the Layeses' home site. On November 2, 2015, with winter
8
approaching, a judge of the Superior Court issued a preliminary
injunction requiring the defendants to provide the Layeses with
a new fuel tank and to connect it to their home.16
Ruling on cross motions for summary judgment, a judge
allowed the Layeses' renewed motion for partial summary judgment
on their individual c. 93A claims and on the defendants' amended
counterclaim. Another judge subsequently denied Rosa's motion
for class certification. Final judgment in favor of the Layeses
entered on their two substantive claims (under c. 93A and
c. 186, § 14),17 and the judge awarded them three months' rent in
damages as well as attorneys' fees.18 See G. L. c. 186, § 14.
16On August 29, 2016, the Attorney General's Office sent a
letter to the CC park manager, instructing RHP Properties to
stop enforcing the November, 2015, version of the CC park rules,
which had never been submitted for the Attorney General's
approval as required by G. L. c. 140, § 32L (5). See 940 Code
Mass. Regs. § 10.02(4) (making it an unfair or deceptive act or
practice for park operators to enforce unapproved rules). The
letter indicated that the 2015 CC park rule required residents
to maintain and to replace their above-ground oil tanks and that
the rule violated the Attorney General's regulations; further,
the letter requested that RHP Properties assume the maintenance
duties required by the regulations. When the defendants failed
to respond, the Attorney General's Office reiterated the
position and the requests in a follow-up letter sent to RHP
Properties' Michigan office.
17At the pretrial conference, the attorneys agreed that the
remaining issues in the case could be decided on the papers
without the necessity of a trial.
18To the extent that the defendants argue that the trial
court's award was based solely on the G. L. c. 93A finding in
the Layeses' favor, the amount of the award demonstrates that
9
The judge also dismissed the defendants' counterclaims and
permanently enjoined the defendants "from implementing or
engaging in any policies or practices that contravene or violate
940 Code Mass. Regs. §§ 10.03(2)(n) and 10.05(4)(d)." These
timely cross appeals followed.19
As the defendants point out, were we to conclude that the
judge erred in entering judgment for the Layeses on their
individual claims, there would be no need to reach the merits of
the certification ruling. We start our analysis there.
Discussion. A. Individual claims. 1. Standard of
review. We review the allowance of a motion for summary
judgment de novo, assessing whether, viewing the facts in the
light most favorable to the nonmoving party (here, the
defendants), the moving party (the Layeses) was entitled to
judgment as matter of law. See Homeowner's Rehab, Inc. v.
Related Corporate V SLP, L.P., 479 Mass. 741, 750 (2018).
Courts construe regulations in the same way as statutes,
applying traditional canons of interpretation. See Armata v.
Target Corp., 480 Mass. 14, 19 (2018). The words of a
the judge imposed liability and statutory damages under G. L.
c. 186, § 14.
19The defendants have not argued that the judge erred in
dismissing their amended counterclaim. We therefore deem all
counterclaims waived. See Abate v. Fremont Inv. & Loan, 470
Mass. 821, 833 (2015). In addition, we note that Francis is not
a party to the appeal from the class certification ruling.
10
regulation are given their usual and ordinary meaning. Id. If
the meaning of a term is clear, courts give effect to that
language; but if the language is ambiguous enough to support
more than one rational interpretation, courts will give effect
to the interpretation that furthers the purpose of the framers.
See Peterborough Oil Co., LLC v. Department of Envtl.
Protection, 474 Mass. 443, 448 (2016). The interpretation of a
regulation is a question of law that is reviewed de novo. See
Morgan v. Massachusetts Homeland Ins. Co., 91 Mass. App. Ct. 1,
8 (2017).
2. Statutory scheme. "Both the Legislature and the courts
of the Commonwealth have recognized that manufactured housing
communities provide a viable, affordable housing option to many
elderly persons and families of low and moderate income, who are
often lacking in resources and deserving of legal protection."20
Greenfield Country Estates Tenants Ass'n v. Deep, 423 Mass. 81,
83 (1996). The act was first enacted in 1939, in order to
20Once fully set up on a foundation at a particular site
and connected to utilities, manufactured houses generally are
not relocated. See Commonwealth v. DeCotis, 366 Mass. 234, 238
(1974). Thus, unlike tenants living in traditional residential
housing, park residents cannot simply pack up their homes and
move without losing a substantial asset. As individuals of
limited means with limited housing options, park residents may
be especially vulnerable to unfair park rules. See id. at 243
(tenants' willingness to pay resale fees where no services
rendered therefor "demonstrate[d] the extent to which the [park
owners] had their tenants at their mercy").
11
protect the rights of residents of mobile home parks. See G. L.
c. 140, §§ 32A-32S; Quinn v. Rent Control Bd. of Peabody, 45
Mass. App. Ct. 357, 359 (1998). The law "provide[s]
comprehensive and substantial rights to owners of manufactured
homes who place such structures upon land rented by them."
Danusis v. Longo, 48 Mass. App. Ct. 254, 255 (1999).
Over the course of time, the Legislature has subjected park
owners to progressively more extensive regulations. See Quinn,
45 Mass. App. Ct. at 359 n.4. In 1993, the Legislature further
strengthened the protections of the act in two ways relevant to
this litigation. First, the Legislature made any violation of
the act's provisions a per se violation of G. L. c. 93A. See
G. L. c. 140, § 32L (7), as amended by St. 1993, c. 145, § 12;
Quinn, 45 Mass. App. Ct. at 364 n.10. At the same time, the
Legislature authorized the Attorney General to promulgate
regulations deemed necessary for the "interpretation,
implementation, administration and enforcement" of the act.
G. L. c. 140, § 32S. As the statute made clear, the authority
given to the Attorney General supplements the Attorney General's
preexisting authority to regulate manufactured housing
communities pursuant to the Consumer Protection Act. See
c. 140, § 32S; G. L. c. 93A, §§ 2, 9; 940 Code Mass. Regs.
§ 3.17 (1993) (regulating the landlord-tenant relationship). To
fulfill the statutory directive, the Attorney General
12
promulgated Title 940 Code Mass. Regs. §§ 10.00 (1996). In
these regulations, the Attorney General established detailed
requirements concerning the respective rights and duties of park
residents and operators.21
3. General Laws c. 93A, § 9, claims. a. Park operator's
removal and replacement duties. The Attorney General's
regulations directly address the factual situation presented by
this case. If an oil tank leaks, as it did here, the cost of
removing and replacing it belongs to the park operator unless
the negligence of the resident caused "the environmental
concerns or risks." 940 Code Mass. Regs. § 10.03(2)(n)
(§ 10.03[2][n]).22 No other exception to the park operator's
21For a more detailed discussion of the history and
provisions of the act, the State sanitary code, and regulations
and law guides promulgated by various Massachusetts Attorneys
General, see Craw vs. Hometown America, LLC, U.S. Dist. Ct., No.
18-12149 (D. Mass. Mar. 21, 2019) (denying motion to dismiss
park residents' class action complaint charging defendants with
unlawfully refusing to make necessary repairs to homesite
infrastructure).
22Title 940 Code Mass. Regs. § 10.03(2) provides in
pertinent part:
"It shall be an unfair or deceptive act or practice in
violation of M.G.L. c. 93A for an operator:
. . .
"(n) to require any resident to pay for the removal or
replacement of oil storage tanks on a home site to meet
environmental concerns or risks not caused by the
negligence of the resident, provided that the operator may
13
liability is provided. As the Attorney General has explained,
the regulation requires park operators to incur these costs
initially because they are "usually better able to pay for or
finance these costs upfront." Attorney General's Guide to
Manufactured Housing Community Law § II.D.8.h (March 2009)
(Attorney General's Guide).23 Any operator who improperly
transfers to the resident the financial responsibility for
replacement costs commits an unfair or deceptive act or practice
recover such costs as capital improvements in accordance
with 940 CMR 10.03(2)(l)."
23This provision in the 2009 Attorney General's Guide
concerning "oil storage tanks" remained unchanged in the 2015
version of the Guide. Section II.D.8.h of the 2009 Attorney
General's Guide states:
"Oil storage tanks. In recent years, community
owner/operators have become concerned about their potential
legal liability stemming from the environmental risks posed
by leaking underground oil storage tanks. The [Attorney
General] Regulations require that the cost of removing or
replacing an oil storage tank should be initially incurred
by the community owner/operator, who is usually better able
to pay for or finance these costs upfront. Thus, you [the
resident] may not be charged directly for the removal or
replacement of oil storage tanks, but your community
owner/operator may eventually recover such costs as capital
improvements, in the manner allowed by law. 940 C.M.R.
10.03(2)(n). This general rule applies whether the tank is
above or below-ground. There is one exception to the
general rule: where your [the resident's] negligence has
caused the environmental concern or risk posed by the oil
tank, you may be held directly responsible for removing or
replacing it."
14
in violation of G. L. c. 93A, § 2 (a). See § 10.03(2)(n). This
clear and unambiguous language controls our decision here.
The defendants, relying on the regulations "read in their
entirety" and the provisions governing fuel charges for
individually metered heating fuel sources and operator
maintenance duties, see 940 Code Mass. Regs. §§ 10.05(4)(b)(3)
and 10.05(4)(d), urge this court to carve out another exception
to liability for privately-owned, individually-metered tanks.
We decline to do so. Clearly, it would be inappropriate to make
a substantive change to the interpretation of a specific
regulation by using language that the Attorney General did not
see fit to include or even reference. See Thurdin v. SEI
Boston, LLC, 452 Mass. 436, 444 (2008) ("where there is an
express exception in a statute, it comprises the only limit on
the operation of the statute and no others will be implied").
Moreover, we are not inclined to adopt a judicial gloss that not
only conflicts with the Attorney General's Guide, but also
contravenes the purpose of the act to allocate reasonably the
burden of addressing relevant safety and environmental concerns,
as well as to assist a vulnerable class "deserving of legal
protection." Greenfield Country Estates Tenants Ass'n, 423
Mass. at 83.
On the undisputed facts here, the Layeses were entitled to
summary judgment on this aspect of their c. 93A claims.
15
Following the failure of their tank, RHP Properties attempted to
require them to fund the cost of a replacement tank until the
defendants were ordered to provide one by the trial court.24
This unfair or deceptive act did not stand alone. The
defendants also had inserted in their standard lease agreement a
provision placing an unconditional replacement duty on all of
the residents, including the Layeses; in addition, the CC park
rule to the same effect was posted only in the management
office, far from scrutiny by the Attorney General. Moreover,
both the lease provision and the CC park rule were inconsistent
with § 10.03(2)(n) and the Attorney General's Guide. For these
reasons, as a matter of law, the CC park rule placing the
replacement burden on the residents in all cases was
"unreasonable, unfair or unconscionable."25 G. L. c. 140,
§ 32L (1). See § 32L (1) (prohibiting promulgation of such
rules). The defendants' actions violated the act and the
24In the trial court, the defendants invoked the negligence
exception to liability primarily on the basis that the Layeses
admittedly did no maintenance work on their tank. As explained
infra, it was the defendants who had the duty to maintain the
tank.
25Although the act does not define the word "rule," the
Attorney General's regulations broadly define the word to mean
"any written or unwritten rule, regulation, or policy imposed by
an operator that governs procedures, conduct, or standards
within the manufactured housing community . . . ." 940 Code
Mass. Regs. § 10.01.
16
Attorney General's regulations, and constituted additional
unfair and deceptive acts or practices within the meaning of
c. 93A, § 2 (a).26 See G. L. c. 140, § 32L (7); 940 Code Mass.
Regs. § 10.02(2), (3); Clark v. Leisure Woods Estates, Inc., 89
Mass. App. Ct. 87, 94 (2016).
b. Park operator's maintenance duties. We turn to the
legal question of more wide-reaching significance. The Layeses
claim that the defendants violated the Attorney General's
regulations and c. 93A by placing the burden of maintaining the
exterior components of the oil systems on the Layeses and all
the CC park residents. The defendants argue that, even if they
can be held liable to the Layeses under c. 93A in the limited
factual circumstances of this case, the defendants have no
general duty under the Attorney General's regulations to
"inspect, repair, service, and maintain" the residents' oil
tanks. The judge read the regulations to place the maintenance
burden on the defendants. We agree.
The park operator's duties with respect to basic utilities
are set forth in 940 Code Mass. Regs. § 10.05(4) (§ 10.05[4]).
A park operator is required to make "basic utilities" available
26The defendants did not challenge the Layeses'
satisfaction of the other elements of their individual G. L.
c. 93A, § 9, claims.
17
to each site.27 See § 10.05(4)(a),(b). Basic utilities are
defined in the regulations as the "utility services listed in
. . . [§] 10.05(4)." 940 Code Mass. Regs. § 10.01. Five
essential utilities are listed therein: electrical service of
appropriate amperage, a natural gas connection if "economically
reasonable," a sufficient supply of potable water, a sanitary
sewage disposal system, and "electricity, natural gas, or other
heating fuel" (i.e., a source of heat). § 10.05(4)(b)(1)-(3).
The regulations specify that the operator must not only
"supply," but also "pay for" the water and the sewage disposal
system. See § 10.05(4)(b)(1), (2). The operator must also
"supply and pay for" the resident's heat unless the energy
supply is separately metered to the individual home and the
resident agrees to pay for the heat in the occupancy agreement.28
27Pursuant to § 10.05(4)(f), any operator who intentionally
interrupts utility service furnished under § 10.05(4)(a) or (b)
is subject to liability under G. L. c. 186, § 14. See also the
Attorney General's regulations governing landlord-tenant
relationships, e.g., 940 Code Mass. Regs. § 3.17(6)(f) (1993)
(making it an unfair and deceptive practice to willfully violate
any provision of c. 186, § 14). Compare 940 Code Mass. Regs.
§ 3.17(6)(g)(1) (1993) (making it unfair and deceptive practice
for owner obligated by law to provide gas or electric service to
resident to fail to provide it).
28This rule permitting park operators to shift heating
costs to their residents is consistent with the State sanitary
code. See 105 Code Mass. Regs. § 410.354(A) (2005) (metering of
electricity and gas); § 410.355 (oil); Young v. Patukonis, 24
Mass. App. Ct. 907, 908-909 (1987).
18
See §§ 10.05(4)(b)(3) and 10.05(4)(e) (permitting use charges
for utilities determined by metering). The regulations permit
the park operator to recover its expenses in providing these
basic utility services through nondiscriminatory rent increases.
See § 10.05(4)(c).
The duty to maintain the park utilities is specifically
governed by § 10.05(4)(d),29 which requires operators to install
all basic utilities "to the point of connection at each
manufactured home and [to] maintain[ them] in good repair and
operating condition . . . without charge to residents . . . ."
Home heating fuel falls within the definition of basic utility.
The defendants, reading §§ 10.05(4)(b)(3) and 10.05(4)(d)
together, argue that where, as here, they properly transferred
the duty "to supply and pay for" the heating oil to the Layeses,
all the defendants' other regulatory duties with respect to the
29 Title 940 Code Mass. Regs. § 10.05(4)(d) provides in
full:
"The basic utilities described in 940 CMR 10.05(4)(a) and
(b), as applicable, shall be installed to the point of
connection at each manufactured home and maintained in good
repair and operating condition by the operator without
charge to residents, except as damage thereto is caused by
the negligent act or omission or willful misconduct of a
resident. All such installation and maintenance shall be
in accordance with applicable laws, codes, and professional
standards" (emphasis added).
The language of this regulation is similar to language found in
the State sanitary code. See 105 Code Mass. Regs. § 410.190
(2005) (hot water); § 410.200 (2005) (heating facilities).
19
oil tanks -- including the duty to replace leaking tanks -- were
eliminated. We are not persuaded. The text of § 10.05(4)(d)
permits the park operator to pass on the cost of maintenance and
repair if the resident, through negligence or willful
misconduct, causes damage to the utility components. As in
§ 10.03(2)(n), no other exception is provided. If the Attorney
General wanted to relieve operators from their other duties in
this situation, she would have expressly included appropriate
language in the regulations. See Thurdin, 452 Mass. at 444.
The phrase "as applicable" in § 10.05(4)(d) does not
support the defendants' argument that they have no duties at all
with regard to individually-metered utilities. We read the
phrase "as applicable," which modifies both § 10.05(4)(a) and
(b) (i.e., all basic utilities), simply to limit the park
operator's duties to the basic utilities actually in use in the
park. If, for example, park residents heat with oil, no purpose
would be served by requiring a park operator to install and to
maintain gas lines and other unnecessary equipment.
Nor can the plain meaning of the regulations be overcome by
the defendants' policy arguments. Many retired and disabled
park residents are not in a position, physically or financially,
to inspect regularly and maintain their oil tanks (or to hire
professionals to do so). For individuals struggling to pay for
their basic living expenses, oil tank maintenance and
20
replacement is beyond their means. In fact, an RHP Properties
manager acknowledged that some park residents will "overlook"
these duties, especially the seniors.
In addition, as landowners, the defendants acknowledge that
they are potentially responsible persons for any releases of
hazardous materials at Chelmsford Commons. See G. L. c. 21E,
§ 5. Pollution to the environment caused by leaking oil tanks
is not in anyone's interest, and remediation work, as the
defendants have put it, can be "catastrophically expensive." In
light of that potential "traumatic" liability, the wisdom of a
corporate policy imposing oil tank maintenance (and replacement)
duties on residents living on fixed incomes is certainly one
that the Attorney General had cause to question.
Furthermore, the Attorney General reasonably could conclude
that the defendants are in at least as good, if not better,
position than the residents to perform these tasks. The
defendants' employees already monitor the condition of all the
oil tanks in the CC park four times per year, checking for
anything posing environmental concerns.30 Records of each
inspection are kept in the park office. These records can serve
as a valuable reference guide in gauging when tank maintenance
Routine inspections performed by the defendants'
30
employees involve making observations of the tanks (which
generally leak from their bottoms), looking under the homes for
signs of leaks, and checking the site for the odor of fuel oil.
21
and replacement should be scheduled. As the Attorney General's
Guidelines point out, park operators and management companies
also are better positioned to keep up with new laws and industry
practices relating to utility systems. See, e.g., note 15,
supra. Finally, any harshness in what the defendants term an
"oppressively burdensome" rule is softened by the defendants'
ability to recoup, through community-wide, nondiscriminatory
rent increases, the expenses incurred in maintaining the utility
systems and in replacing oil storage tanks due to environmental
concerns or risks.31 See, e.g., 940 Code Mass. Regs.
§§ 10.03(2)(l), (n); 10.05(4)(c).
Where a sensible construction of a regulation is available,
we will not adopt an interpretation that leads to an illogical
result. See New England Power Generators Ass'n v. Department of
Envtl. Protection, 480 Mass. 398, 411 (2018). With respect to
other basic utilities, the defendants acknowledge that, under
their interpretation of the regulations, residents with
individually-metered electricity and natural gas would be
responsible for maintaining the exterior components of those
utility systems leading up to their homes. Components required
31The defendants' concern for the rights of the residents
posed by routine site inspections was not raised below, and we
do not consider it further. See 940 Code. Mass. Regs.
§ 10.03(8)(b).
22
to provide electricity and gas service would include wires,
transformers, and underground pipes.32 This result cannot be
what the Attorney General intended.
In sum, we see no error in the judge's interpretation
placing the duty to maintain, repair, and replace the exterior
components of oil heating systems upon the defendants. The only
exceptions to this rule are those involving resident negligence
or misconduct. Residents who cause the "environmental concerns
or risks" are responsible to pay for removing and replacing
compromised oil tanks. § 10.03(2)(n). Residents who damage the
basic utilities in the park are responsible for the costs of
repair. However, the operator cannot justify asking a resident
to pay for a replacement tank on the ground that the resident
was negligent in failing to perform routine maintenance on the
tank, which in fact is the park operator's responsibility under
32We note that, even where the landlord is not required to
pay for electricity and gas used in a dwelling unit, the State
sanitary code still places the duty on the landlord to install
and maintain the wiring and pipes. See 105 Code Mass. Regs.
§ 410.354(C) (2005). As the sanitary code has the same
objectives and covers the same subject matter, its provisions
should be read in pari materia with the Attorney General's
regulations. See Commonwealth v. J.A., 478 Mass. 385, 387
(2017) (in interpreting statutes, courts may find other statutes
covering same subject instructive). See also Molly A. v.
Commissioner of the Dep't of Mental Retardation, 69 Mass. App.
Ct. 267, 281 (2007).
23
the regulations. Thus, summary judgment was properly entered on
this aspect of the Layeses' individual c. 93A claims.
4. General Laws c. 186, § 14, claims. In defending the
class action ruling, the defendants argue that Rosa cannot prove
her quiet enjoyment claim individually and that she failed to
establish a violation of G. L. c. 186, § 14 (§ 14).33 We
disagree. Liability already was established under § 14 as part
of the final judgment. (See note 18, supra.) However, the
judge did not state the ground or grounds upon which he
predicated that liability.
33 General Laws c. 186, § 14, provides, in relevant part:
"Any lessor or landlord of any building or part thereof
occupied for dwelling purposes . . . including a
manufactured home or land therefor, who is required by law
. . . to furnish water, hot water, heat, light, power, [or]
gas . . . to any occupant of such building or part thereof,
who willfully or intentionally fails to furnish such water,
hot water, heat, light, power, [or] gas . . . at any time
when the same is necessary to the proper or customary use
of such building or part thereof . . . or who transfers the
responsibility for payment for any utility services to the
occupant without his knowledge or consent, or any lessor or
landlord who directly or indirectly interferes with the
quiet enjoyment of any residential premises by the occupant
. . . shall be punished by a fine of not less than twenty-
five dollars nor more than three hundred dollars, or by
imprisonment for not more than six months. Any person who
commits any act in violation of this section shall also be
liable for actual and consequential damages or three
month's rent, whichever is greater, and the costs of the
action, including a reasonable attorney's fee . . . ."
24
The Layeses proceeded under three of the five prongs of
§ 14. They alleged that the defendants' "refusal to assume
responsibility for the maintenance, repair and replacement of
the home heating oil system external components" constituted the
(1) willful and intentional failure to furnish utility services
required by law; (2) interference with their quiet enjoyment of
their premises; and (3) transfer of the duty to pay for utility
services without their consent. See § 14; note 33, supra. We
conclude that the Layeses were entitled to judgment as matter of
law under all three theories of liability. The undisputed facts
establish that the defendants refused to replace the Layeses'
oil tank as required by § 10.03(2)(n). In addition, as the
second heating season without a permanent oil tank approached,
the defendants removed the temporary tank and the fuel lines
from the home site, leaving the family with no means to get home
heating oil inside to their furnace. This conduct amounted to
the "willful[] . . . interrupt[ion of] . . . utility service[s]"
for purposes of § 14 liability. See 940 Code Mass. Regs.
§ 10.05(4)(f).
Liability also could properly have been imposed under the
second prong of § 14 asserted by the Layeses. The term "quiet
enjoyment" at common law signified the tenants' rights to be
free from "serious interferences" with their tenancies. Simon
v. Solomon, 385 Mass. 91, 102 (1982). Serious interferences
25
means "acts or omissions that impair the character and value of
the leased premises" (quotation and citations omitted). Id.
Section 14 codified these common-law rights.34 See Al-Ziab v.
Mourgis, 424 Mass. 847, 850 (1997). We note that, even where a
landlord has not intended to violate a tenant's rights, the
landlord may be held responsible for breaches of the covenant of
quiet enjoyment that "flowed as the natural and probable
consequence of what the landlord did, what he failed to do, or
what he permitted to be done." Blackett v. Olanoff, 371 Mass.
714, 716 (1977).
Here, the defendants failed to provide the Layeses with the
means to heat their home centrally during the winter. As a
result of the lack of adequate heating facilities, the
conditions inside the home made it uninhabitable in the early
morning hours.35 See 105 Code Mass. Regs. § 410.201 (2005)
(establishing minimum temperature requirement of at least sixty-
34The Supreme Judicial Court has observed that § 14
"belongs to a body of statutes establishing tenants' remedies
against landlords who fail to provide safe and sanitary
housing." Simon, 385 Mass. at 100.
35As the defendants point out, the Layeses did have three
other potential sources of heat in their home: a propane
fireplace insert, a wood-burning stove, and a kerosene heater.
These sources, however, were unable to provide adequate heat
through the night. We also note that for safety reasons, a
kerosene heater may not be used to satisfy the State sanitary
code requirement that the owner provide heating "facilities."
See 105 Code Mass. Regs. § 410.200(A), (B) (2005).
26
four degrees between 11:00 P.M. and 7:00 A.M.). Heat is an
essential service that "go[es] to the essence of what the
landlord is to provide." Charles E. Burt, Inc. v. Seven Grand
Corp., 340 Mass. 124, 127 (1959). Few things would more
seriously impair the character and value of leased premises than
lack of heat. See 105 Code Mass. Regs. § 410.200(A) (2005)
(heating facilities required); Abdeljaber v. Gaddoura, 60 Mass.
App. Ct. 294, 301 (2004) (affirming award of three months' rent
under c. 186 based on failure to provide tenants with adequate
heat); Lowery v. Robinson, 13 Mass. App. Ct. 982, 982-983 (1982)
(landlord's failure to provide heat during heating season
qualified as serious impairment warranting c. 186 liability).
Moreover, we conclude that the judge properly could have
found for the Layeses on their third theory -- that the
defendants violated the statutory bar against transferring their
duty to pay for utility services. Under the Attorney General's
regulations, the park operator is required to provide basic
utility services to the residents. The operator is required to
maintain the utilities in good repair and operating condition at
no expense to the residents up to the point of connection to the
home. § 10.05(4)(d). The undisputed facts here established
that, through their standard lease, the defendants transferred
their duties and costs to the Layeses.
27
We reject the defendants' argument that the Layeses' claim
does not fit within the plain language of § 14. The duty to
provide "utility services," see 940 Code Mass. Regs. §§ 10.01,
10.05(4), encompasses the duty to maintain and to replace the
components required to deliver those services. The defendants
argue that the residents, through their leases, agreed to assume
the maintenance and replacement duties and costs. This argument
fails. As matter of law, the residents could not consent to a
lease provision transferring the defendants' regulatory duties
to them. See 940 Code Mass. Regs. § 10.03(9)(b) (declaring any
lease provision "which releases or limits the operator's
liability arising under law . . . void and unenforceable");
Trustees of the Cambridge Point Condominium Trust v. Cambridge
Point, LLC, 478 Mass. 697, 705 (2018) (recognizing that some
contracts are void as against public policy and will not be
enforced); Berman & Sons v. Jefferson, 379 Mass. 196, 199 n.6
(1979) (finding exculpatory clause in lease "of no effect");
Boston Hous. Auth. v. Hemingway, 363 Mass. 184, 199 (1973)
(holding that landlord's implied warranty of habitability cannot
be waived by any lease provision). Thus, notwithstanding the
lease provision, the transfer of responsibility for the services
occurred without the residents' consent. The Layeses were
entitled to judgment as matter of law under this prong of § 14
as well.
28
Finally, the defendants argue that their conduct did not
rise to the level of a "serious interference[]," Simon, 385
Mass. at 102, with the Layeses' tenancy. We disagree. Even
assuming, without deciding, that a serious or substantial
interference was a required element of an unlawful transfer
claim, the Layeses made that showing here. The defendants
implemented a policy that deprived the Layeses and other
residents of necessary utility services to which they were
entitled. Moreover, despite complaints from residents and a
warning from the Attorney General, the defendants failed to
assume the duties required of them by the regulations. See Al-
Ziab, 424 Mass. at 850 (noting that conduct involving some
degree of fault is required to impose liability on landlord
under § 14). As a result, the Layeses were entitled to an award
of three months' rent, an amount that was greater than their
actual and consequential damages.36
B. Class certification. 1. Procedural facts. In Rosa's
amended class action complaint, she sought the certification of
a class of 240 current and former Chelmsford Commons residents
who resided at the park at any time since April 22, 2011, and
36Where, as here, the tenants remained in possession during
the breach, "actual damages 'are measured by the difference
between the value of what the lessee should have received and
the value of what he did receive.'" Curtis v. Surrette, 49
Mass. App. Ct. 99, 104 (2000), quoting Darmetko v. Boston Hous.
Auth., 378 Mass. 758, 761 n.4 (1979).
29
who heated their homes through oil-fueled systems. Her amended
class action complaint looked much like the Layeses' original
complaint. In it, she alleged that, since taking ownership in
2011, the defendants had implemented an illegal policy affecting
all members of the class, requiring the residents to maintain,
repair, and replace the exterior components of their home
heating oil systems. She further alleged that the defendants'
policy violated the act, the Attorney General's regulations, and
c. 93A, and that the transfer of the above-listed
responsibilities to the residents constituted a transfer of the
responsibility to pay for utility services to the residents
without their consent, in violation of c. 186, § 14.37 She
asserted claims under c. 93A and c. 186 on behalf of herself and
all members of the class, and sought permanent injunctive relief
and compensatory damages for injuries arising from the
defendants' refusal to carry out their regulatory obligations.38
Specifically, she sought certification of a consumer class under
G. L. c. 93A, § 9 (2);39 and certification of both the cc. 93A
37 Other theories of liability have been waived.
38As part of the final judgment entered in connection with
their successful individual claims, the Layeses obtained the
prospective, permanent injunctive relief they sought on behalf
of the class members still in residence at the CC park.
30
and 186 claims under Mass. R. Civ. P. 23, as amended, 471 Mass.
1491 (2015).40
By the time the motion judge took up the motion for class
certification, another judge had already found that the Layeses
were entitled to judgment as matter of law on their individual
c. 93A claims. However, the motion judge denied Rosa's motion
39General Laws c. 93A, § 9 (2), governs the certification
of a class action under the consumer protection law and provides
in relevant part:
"Any persons entitled to bring such action may, if the use
or employment of the unfair or deceptive act or practice
has caused similar injury to numerous other persons
similarly situated and if the court finds in a preliminary
hearing that he adequately and fairly represents such other
persons, bring the action on behalf of himself and such
other similarly injured and situated persons . . . ."
40Rule 23 of the Massachusetts Rules of Civil Procedure
provides, in pertinent part:
"(a) Prerequisites to Class Action. One or more members of
a class may sue or be sued as representative parties on
behalf of all only if (1) the class is so numerous that
joinder of all members is impracticable, (2) there are
questions of law or fact common to the class, (3) the
claims or defenses of the representative parties are
typical of the claims or defenses of the class, and (4) the
representative parties will fairly and adequately protect
the interests of the class.
"(b) Class Actions Maintainable. An action may be
maintained as a class action if the prerequisites of
subdivision (a) are satisfied, and the court finds that the
questions of law or fact common to the members of the class
predominate over any questions affecting only individual
members, and that a class action is superior to other
available methods for the fair and efficient adjudication
of the controversy."
31
for class certification, concluding that she had failed to meet
the requirements of both c. 93A, § 9 (2), and rule 23. Rosa
appeals.
2. Standard of review. We review a ruling denying class
certification for abuse of discretion. See Salvas v. Wal-Mart
Stores, Inc., 452 Mass. 337, 361 (2008). An abuse of discretion
may be found if the motion judge relies on improper factors,
engages in action that is "arbitrary, unreasonable, or
capricious," or commits legal error (citation omitted). Id. On
a motion under either rule 23 or c. 93A, § 9 (2), plaintiffs
must provide "information sufficient to enable the motion judge
to form a reasonable judgment that the class meets the
requirements of rule 23 [and c. 93A, § 9 (2)]; they do not bear
the burden of producing evidence sufficient to prove that the
requirements have been met" (emphasis added; citation omitted).
Kwaak v. Pfizer, Inc., 71 Mass. App. Ct. 293, 297 (2008).
The certification requirements of c. 93A, § 9 (2), and rule
23 are not coextensive. See Bellermann v. Fitchburg Gas & Elec.
Light Co., 475 Mass. 67, 72 n.11 (2016). The statutory class
certification standard has a more "mandatory tone" than the
rule. Kwaak, 71 Mass. App. Ct. at 298. In exercising
discretion with respect to a c. 93A certification request, the
public policy of Massachusetts strongly favoring c. 93A class
actions should be considered. See Bellermann, 475 Mass. at 71.
32
Moreover, the judge should "bear in mind that our consumer
protection statute was designed to meet a pressing need for an
effective private remedy for consumers" (quotation and citation
omitted). Fletcher v. Cape Cod Gas Co., 394 Mass. 595, 605
(1985). In sum, the requirements of § 9 (2) are "easier to
satisfy" than those of rule 23 (citation omitted). Gammella v.
P.F. Chang's China Bistro, Inc., 482 Mass. 1, 10 (2019).
3. General Laws c. 93A, § 9 (2), certification request. A
plaintiff will prevail on her motion for certification under
c. 93A upon showings that (1) she was "entitled to seek relief
under c. 93A for . . . injuries resulting from the defendant[s'
alleged] unfair or deceptive act or practice"; (2) the
"assertedly unfair or deceptive act or practice that caused
[her] injuries 'caused similar injury to numerous other persons
similarly situated'"; and that (3) the plaintiff "would
'adequately and fairly represent[] such other persons.'"
Bellermann, 475 Mass. at 72, quoting G. L. c. 93A, § 9 (2).
Here, the motion judge, adopting the earlier summary
judgment interpretation of the Attorney General's regulations,
ruled that the defendants were responsible for maintaining,
removing, and replacing the oil tanks. However, she concluded
that, while the defendants were "subject to liability under
G. L. c. 93A if they require residents to pay for the removal or
replacement" of their tanks, the defendants would not be liable
33
to CC park residents as to whom the defendants took no
affirmative action with respect to their tanks. To reach that
conclusion, she reasoned that in order to commit an unfair or
deceptive act or practice under c. 93A, an operator had to
"impose" or "enforce" a rule or "otherwise take action" that
conflicts with the act, the Attorney General's regulations, or
other applicable law. See 940 Code Mass. Regs. §§ 10.02(2),
(3); 10.04(1)(a)(4).
Applying this reasoning to the information submitted by
Rosa, the judge found that, to the extent that the class action
claim arose out of the "enforcement" of the lease provision,
Rosa provided evidence that the defendants had enforced it
against only eighteen households. A putative class of this few
in number, in the judge's view, failed to satisfy "the
numerosity requirement of G. L. c. 93A, § 9 (2)."
Next, the judge ruled that, absent some affirmative act,
the mere existence of the lease provision did not amount to the
"imposition" of a rule that violated 940 Code Mass. Regs.
§§ 10.03(2)(n), 10.05(4)(d); and c. 93A. Finally, the judge
questioned whether the "similar injury" requirement could be met
on a class-wide basis.
The judge's class certification analysis was flawed, and as
a result, remand is required to properly consider the class
certification calculus. To begin, the proposed class is
34
sufficiently numerous. The plaintiff has defined the class as
those current and former CC park residents, during a defined
time period, who heated their homes "with a home heating oil
system." This class definition was appropriately definite. The
class members could be ascertained by objective criteria, and it
is not contested that there were 240 such park residents. It is
the plaintiff's role to define the proposed class in the first
instance, and where the proposed class is sufficiently definite,
the judge ordinarily should not redefine it for numerosity
purposes.
The recent decision of the Supreme Judicial Court in
Gammella, 482 Mass. 1, is instructive in this regard, as in that
case the court reversed a trial court's decision denying class
certification based upon a perceived lack of numerosity. The
court noted, among other things, that uncertainties about the
particular facts of individual class members should not lead to
denying class certification on numerosity grounds, "at least
when hundreds of [proposed class members] are affected by an
apparent prohibited 'class-wide practice.'" Id. at 13. Here, a
class of 240 members is sufficiently numerous to qualify for
class treatment.
Once the class has been defined and is sufficiently
numerous, however, the next question, for a c. 93A class, is
whether the purported class members suffered "similar injury"
35
from the unfair or deceptive practice. See c. 93A, § 9 (2).
This is the issue that appeared to cause the motion judge the
most concern, because the evidence indicated that the unlawful
lease provision was actively enforced against only eighteen of
the 240 purported class members.
The judge's concern about whether the injuries were
sufficiently "similar" was a valid concern. Nevertheless, we
believe there are countervailing considerations that may justify
the certification of a class under the circumstances. Each
member of the proposed class here was required to sign a lease
containing a clause that violated c. 93A. The question of the
legality of the lease clause was an important and common issue
to all proposed class members. Based upon our decision today,
each purported class member was at least entitled to injunctive
relief against enforcement of the clause. In adjudicating the
class members' c. 93A claims, however, the judge must address
whether each purported class member is also entitled to some
amount of monetary relief. To be so entitled, a class member
would need to show additional elements -- "injury" caused by the
c. 93A violation, as well as the amount of any damages. See
c. 93A, § 9 (1), (3).
Accordingly, as to the c. 93A class, one issue for the
judge on remand is whether there are sufficiently similar
injuries across the purported class. To prove a c. 93A claim
36
and the entitlement to at least statutory damages, a plaintiff
must show not only the c. 93A violation, but also some kind of
"separate, identifiable harm" resulting from the c. 93A
violation. Tyler v. Michaels Stores, Inc., 464 Mass. 492, 503
(2013). Put another way, the mere fact that the offending
clause existed in a resident's lease is not sufficient to
establish a c. 93A injury; each CC park resident must show
actual harm caused by the clause. See Tyler, supra. On the
current record, it appears that many class members suffered some
injury, although the nature and cause of the injury may have
varied. For example, a CC park resident may have been injured
due to enforcement of the clause against him (as in the Layeses'
case, where the family suffered inordinately cold indoor
temperatures during the winter months, cf. id. at 504 & n.20),
or the park resident may have incurred the costs of maintenance
or other costs that resulted because the defendants had failed
to maintain a fuel tank properly.41,42 On the other hand, it is
41We do not mean this list to be exhaustive. Purported
class members may have additional theories for how they were
injured as a result of the lease clause.
42We do not agree with the motion judge's ruling that there
could be no c. 93A violation as to a particular CC park resident
unless the operator committed some additional "affirmative
action" that amounted to "imposition" of the lease clause on
that park resident. The placement of the clause in the lease
documents was a c. 93A violation; no further "affirmative
action" was required. See §§ 10.03(2)(n) and 10.05(4)(d).
37
also possible that some proposed class members may not have
suffered any harm as a result of the defendants' policies
regarding residents' exterior fuel tanks.
Accordingly, on remand the parties and the motion judge
must address the claimed injuries (if any) of the purported
class members; how the injuries are similar or different; and
how they might be proved. In determining whether a class should
be certified, the judge should keep in mind the principles,
identified above, favoring c. 93A classes where circumstances
warrant. Here, the c. 93A violation is common to the class.
The fact that injury or damages may vary across the class is not
necessarily a bar to class certification. Courts frequently
have held that a class can be certified despite differences in
damages among class members. See Salvas, 452 Mass. at 364
("Class certification may be appropriate where common issues of
law and fact are shown to form the nucleus of a liability claim,
even though the appropriateness of class action treatment in the
Moreover, the judge's analysis incorrectly restricted the scope
of the protection afforded under the law. Not only can an
operator commit a violation of G. L. c. 93A, § 2 (a), by
affirmative acts, it can also do so by inaction (i.e., failing
to comply with provisions of either the act or the Attorney
General's regulations). See 940 Code Mass. Regs. § 10.02(3);
Clark, 89 Mass. App. Ct. at 94. Nevertheless, in order to
recover under c. 93A, each purported class member must show not
only a violation of c. 93A, § 2, but also a "separate, . . .
distinct injury or harm." Tyler, 464 Mass. at 503.
38
damages phase is an open question"). The question for the
motion judge is whether the injury issue can be resolved for
each class member in a way that is manageable and reasonably
efficient, and fair to both plaintiffs and defendants.43 See
Fletcher, 394 Mass. at 605-607 (judge has discretion in applying
similarity requirements of c. 93A, § 9 [2], and in evaluating
suitability of proposed class).44 Here, the record suggests that
the question of injury as to individual class members could
present sufficient similarities so as to allow for such a fair
and manageable resolution, which is a matter the motion judge
can take up on remand.
4. General Laws c. 186, § 14, certification request.
Finally, Rosa also asserts that a class should have been
43Although the defendants point out that they have a
defense if injury was caused by the plaintiffs' own negligence,
that is not a basis for denying class certification here. There
was no evidence on this record suggesting that any resident had
negligently caused an "environmental concern[] or risk[]," or
had damaged any utility components through negligence or
misconduct. See §§ 10.03(2)(n), 10.05(4)(d). The fact that the
Attorney General's regulations may theoretically provide
defenses to the defendants' liability as to hypothetical class
members is not a basis for denying class certification. See
Salvas, 452 Mass. at 367.
44Although the requirements of "predominance" and
"superiority," which are found in rule 23 (b), do not appear as
express requirements in c. 93A, § 9 (2), "a judge retains some
discretion to consider these factors in determining whether
putative class members are 'similarly situated' and have
suffered a 'similar injury'" (citations omitted). Bellerman v.
Fitchburg Gas & Elec. Light Co., 470 Mass. 43, 53 (2014).
39
certified on the § 14 claim.45 This contention is governed by
Mass. R. Civ. P. 23, and presents different issues from those
arising under c. 93A. For example, proof of liability involves
different elements under c. 186, § 14, and c. 93A. See Cruz
Mgt. Co. v. Thomas, 417 Mass. 782, 789 (1994) (claim under
c. 186, § 14, can be predicated on negligence); G. L. c. 186,
§ 14 (landlord who, inter alia, "transfers the responsibility
for payment for any utility services to the occupant without his
knowledge or consent . . . shall be liable . . ."). Compare 940
Code Mass. Regs. § 3.17(6)(f) (1993) (unfair and deceptive
practice for owner to "violate willfully any provisions of
[G. L.] c. 186, § 14"); G. L. c. 93A, § 9 (1) ("Any person . . .
who has been injured by . . . any method, act or practice
declared to be unlawful by [c. 93A, § 2,] . . . may bring an
action . . ."). Moreover, if liability is found, damages under
c. 186, § 14, may be more readily established than under c. 93A.
See, e.g., Clark, 89 Mass. App. Ct. at 91, quoting Darmetko v.
Boston Hous. Auth., 378 Mass. 758, 762 (1979) (G. L. c. 186,
§ 14, "allows a minimum recovery of three months' rent as an
incentive to the pursuit of relief where the actual and
45As we have noted, on appeal, Rosa pursues only her theory that
the defendants violated § 14's proscription against
"transfer[ring] the responsibility for payment for any utility
services to the occupant[s] without [their] knowledge or
consent." See note 37, supra, and accompanying text.
40
consequential damages are slight or are difficult to prove").
Compare G. L. c. 93A, § 9 (providing for "actual damages or
twenty-five dollars, whichever is greater" for injury resulting
from violation that was not willful or knowing). Because the
motion judge did not address certification of the claim under
c. 186, § 14, remand is required for this reason as well.
Conclusion. So much of the judgment as denied class
certification is vacated, and the question of class
certification is remanded for further proceedings consistent
with this opinion. In all other respects, the judgment is
affirmed.
So ordered.