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13-P-1718                                           Appeals Court

         FELIX AVIKSIS & another1    vs.   KEVIN MURRAY & others.2


                               No. 13-P-1718.

           Suffolk.        November 24, 2014. - March 6, 2015.

                Present:    Meade, Hanlon, & Carhart, JJ.


Landlord and Tenant, Attorney's fees. Contract, To guarantee
     rent payments. Practice, Civil, Attorney's fees.



      Civil actions commenced in the Boston Division of the
Housing Court Department on September 26, 2008 and November 14,
2008.

     After consolidation, the cases were heard by MaryLou
Muirhead, J., and a motion for attorney's fees and costs was
heard by her.


     Hans R. Hailey for the plaintiffs.
     Joseph Lichtblau for the defendants.


     CARHART, J.      Felix Aviksis appeals from a Boston Housing

Court judgment awarding attorney's fees pursuant to G. L.


     1
         27-29 Sutherland Road, LLC.
     2
       Andrew Huber, William Wiet, Nick Colasurdo, Rick Murray,
and Gene Libow.
                                                                      2


c. 186, § 20, to Kevin Murray (Murray).   The award followed a

bench trial and a finding in favor of Murray on a complaint by

Aviksis, which alleged that Murray was liable as guarantor for

damage to a leased premises caused by Murray's son while a

tenant.   We reverse the award.

     Background.   On September 1, 2007, several young men,

including Murray's son Rick Murray (Rick), began a one-year

residential lease as the tenants of 29 Sutherland Road, Unit 1,

in Brighton.   The property is owned by 27-29 Sutherland Road,

LLC; Aviksis is a manager of the LLC and property manager of the

leased unit.   The lease provided that the tenants were

responsible for all separately metered utilities.   Murray

executed a guarantee, agreeing, as relevant here, to be

responsible for any damage to the property caused by Rick.3     The

lease provided for the landlord's recovery of attorney's fees

from the tenants in the event of litigation, but the guarantee

contract was silent as to attorney's fees.

     Unit 1, apparently along with other units on the property,

was heated by natural gas, which was separately metered.      The

tenants did not ask the gas company to put the utility account

in their names after they began occupying the unit.   Nor did

they pay the bill and, eventually, the gas company turned off

     3
       Three other guarantors executed similar guarantees on
behalf of their children who were tenants, but apparently
Aviksis did not pursue claims against those guarantors.
                                                                    3


the gas service to Unit 1, apparently during a period when the

tenants were away from the apartment.    It was during this time,

in early January, 2008, that Unit 1 was damaged when water

infiltrated the property.   Aviksis alleged that the damage

resulted because water pipes froze and broke due to the gas

company having turned off the gas service to Unit 1, leaving it

unheated.   Aviksis repaired the damage and the tenants remained

in Unit 1 until the expiration of the lease, when they moved

out.

       The tenants then commenced an action against Aviksis for

recovery of the security deposit and interest (G. L. c. 186,

§ 15B), for rent abatement, and for damages for breach of the

covenant of quiet enjoyment (G. L. c. 186, § 14).4   The latter

two claims were based on the fact that the water damage left

part of the unit uninhabitable until it was repaired.    Aviksis

in part responded by commencing a separate action against

Murray, alleging that Rick was responsible for the water damage

and that Murray therefore was obligated by the guarantee to pay

for the damage.   The actions were consolidated, and a motion

judge allowed summary judgment in favor of the tenants on their

security deposit and interest claim.


       4
       The guarantors (including Murray) were also named as
plaintiffs in the complaint, but their claims were ultimately
dismissed because they lacked standing to pursue claims
belonging solely to the tenants.
                                                                    4


     After trial, a second judge found in favor of Murray on

Aviksis's complaint, concluding that Aviksis had failed to prove

that the termination of gas service to Unit 1 had caused the

water damage.   As to the other complaint, the trial judge ruled

for the tenants on their rent abatement claim, finding that the

implied warranty of habitability had been breached and that

Aviksis had failed to show the tenants were responsible for the

uninhabitability.    The judge ruled against the tenants on their

quiet enjoyment claim.5

     Murray then moved pursuant to G. L. c. 186, § 20, for his

attorney's fees incurred in defending against Aviksis's

complaint.6   The judge allowed the award, "find[ing] that the

claim asserted by . . . Aviksis was, in fact, a claim against

[Rick], the tenant, for damages at the subject premises."

Aviksis now appeals from the judgment entered on that complaint,

dismissing Aviksis's action and awarding Murray's attorney's

fees and costs.7    The sole issue raised is whether the statute


     5
       The judge found that "[t]here has been no evidence that
the burst pipe(s) was the result of any action or inaction on
the part of . . . Aviksis and/or 27-29 Sutherland [Road,] LLC[,]
or that there was an unreasonable delay in the restoration of
[Unit 1] caused by the negligence of . . . Aviksis."
     6
       The same attorney represented both Murray and the tenants
in the litigation below (and in this appeal).
     7
       There is no appeal before us from the separate judgment
entered on the tenants' complaint, which included awards to the
tenants of attorney's fees and costs -- under G. L. c. 186,
                                                                    5


allowed Murray, as guarantor of a tenant's obligations to the

landlord, to recover attorney's fees.

    Discussion.   "In general, a prevailing party may not

recover attorney's fees in the absence of statutory authority or

a contractual provision."    Lincoln Street Realty Co. v. Green,

374 Mass. 630, 631 (1978).   It is undisputed that Murray's

guarantee contract does not provide for attorney's fees.      The

judge instead awarded fees pursuant to G. L. c. 186, § 20,

inserted by St. 1977, c. 159, § 1.   Whether the judge had

authority to do so is a question of statutory interpretation, to

which we apply standard rules of construction without deference

to the judge's conclusion.   See Fascione v. CNA Ins. Cos., 435

Mass. 88, 88, 91-94 (2001); National Lumber Co. v. United Cas. &

Sur. Ins. Co., 440 Mass. 723, 724, 726-729 (2004); Connolly v.

Sullivan, 76 Mass. App. Ct. 316 (2010).

    Under G. L. c. 186, § 20, if a residential lease provides,

as here, that "in any action or summary proceeding the landlord

may recover attorneys' fees and expenses incurred as the result

of the failure of the tenant to perform any covenant or

agreement" in the lease, there is implied in the lease a

"covenant by the landlord to pay to the tenant the reasonable

attorneys' fees and expenses incurred by the tenant as the



§ 15B, for their security deposit and interest claim, and under
G. L. c. 186, § 20, for their rent abatement claim.
                                                                   6


result of the failure of the landlord to perform any covenant or

agreement . . . under the lease or in the successful defense of

any action or summary proceeding commenced by the landlord

against the tenant arising out of the lease" (emphases

supplied).8   As the trial judge noted, there is no dispute that

Murray was not named a tenant by the lease and was not otherwise

an occupant of Unit 1.   Indeed, the judge dismissed Murray's

claims under G. L. c. 186, §§ 14, 15B, and for rent abatement,

because he was not a tenant and therefore lacked standing (see

note 4, supra).   Aviksis commenced his action against a

guarantor on the basis of the guarantee contract and not against

a tenant on the basis of the lease.9   The judge's conclusion that

Murray was entitled to attorney's fees under G. L. c. 186, § 20,

even though he was not a tenant and the action was not brought

against a tenant and arising out the lease, was erroneous.

     8
       Also implied in such a lease by § 20 is "an agreement that
such fees and expenses may be recovered as provided by law in an
action commenced against the landlord or by way of counterclaim
in any action or summary proceeding commenced by the landlord
against the tenant." (Murray briefly argues that this language,
in failing to specify by whom "such fees and expenses may be
recovered," leaves an opening for recovery of fees by a
guarantor. The contention is without merit; "such fees and
expenses" plainly refers back to those "incurred by the tenant,"
which the landlord covenants "to pay to the tenant.")
     9
       Furthermore, although the judge made a "find[ing]" (her
word) that the damage claim against Murray as guarantor was
actually a claim against Rick, Aviksis could not assert such a
claim against Rick. See G. L. c. 186, § 15B(6) (landlord may
not counterclaim for damage to premises if he has not complied
with security deposit provisions).
                                                                     7


     "It is well settled that when a statute is construed its

words are to be given their usual and ordinary meaning

considered in light of the aim to be accomplished by the

Legislature."   Prudential Ins. Co. of Am. v. Boston, 369 Mass.

542, 546 (1976).    Because the general term "tenant" is not

defined in c. 186, we take its meaning "from the setting in

which it is employed."    Kenney v. Building Commr. of Melrose,

315 Mass. 291, 295 (1943).    Historically, c. 186 has related

expressly to "Estates for Years and at Will."     R.L. 1902,

c. 129.   G. L. (1921) c. 186.   G. L. (Ter. Ed.) c. 186.      Section

4, which has long carried the title, "Liability of tenant for

rent of part of land demised" (emphasis supplied),10 provides

that "[a] person in possession of land out of which rent is due

shall be liable" for rent in proportion to the amount of demised

land possessed.    G. L. c. 186, § 4.   This implies that a

"tenant," as used in c. 186, is "a person in possession of land

out of which rent is due."    General Laws c. 186, § 20, requires

a landlord in breach to pay reasonable attorney's fees "to the

tenant" where the lease allows fee-shifting from landlord to

tenant,11 and "[t]he literal meaning of a general term . . . must


     10
       General Laws (Ter. Ed.) c. 186, § 4.     See G. L. (1921)
c. 186, § 4.
     11
       Also of note is the title of the act creating § 20: "An
Act Regulating the Recovery of Attorneys' Fees and Certain
Expenses by the Landlord or Tenant in Certain Actions or Summary
                                                                   8


be limited so as not to include matters that . . . do not fairly

come within [the] spirit and intent" of the Legislative

enactment.    Kenney, supra.   General Laws c. 186, § 20, "is

limited in scope to equalizing the burden of potential

litigation costs where a provision in the lease imposes that

burden disproportionately on the tenant," Colonial Estates

Assocs. v. Montagna, 18 Mass. App. Ct. 972, 973 (1984),12 and it

is undisputed in this case that Murray was not in possession of

the land and not a "tenant" for the purposes of G. L. c. 186,

§§ 14 and 15B.   Guarantees are matters of contract, see

Merrimack Valley Natl. Bank v. Baird, 372 Mass. 721, 723 (1977),

and this guarantee did not provide for attorney's fees.    The

unambiguous language of § 20 does not evince a Legislative

intent to extend reciprocal fee-shifting coverage to guarantors

of tenants.   Our function is "to construe a statute as written,"

Prudential Ins. Co. of Am., supra at 547, and, as written, G. L.

c. 186, § 20, simply does not apply to the guarantor in the

circumstances.




Proceedings Arising Out of Leases of Residential Property."
St. 1977, c. 159, § 1.
     12
       Here, the tenants received the benefit of fee-shifting
under the statute, satisfying the concern underlying § 20. See
note 7, supra.
                                                              9


    So much of the judgment in the matter of Aviksis vs. Murray

as awards attorney's fees is reversed.   The judgment is

otherwise affirmed.

                                   So ordered.
