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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were dismissed, and the defendants have withdrawn their appeal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.
