http://casestudies.law.harvard.

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By Todd Rakoff and Joseph William Singer

2013 (Rev)

The Case of the Landlord’s Dilemma Part 2 –

Relevant Law
Problem Solving Workshop Case Study
Product Number: PSW002-SM02

Copyright © 2013 Harvard University. No part of this publication may be reproduced, stored in a
retrieval system, used in a spreadsheet, or transmitted in any form or by any means – electronic,
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Relevant Law 1

CRIMINAL HARASSMENT/STALKING LAW

One Massachusetts criminal statute prohibits “criminal harassment,”

Mass. Gen. Laws ch. 265, § 43A (criminal harassment statute), while another
prohibits harassment accompanied by stalking and threats, Mass. Gen. Laws
ch. 265, § 43 (criminal stalking statute). The criminal harassment statute
defines what constitutes a violation of that law and case law interpreting the
statute further defines what conduct is encompassed by it. A question in this
case is whether the conduct of Tim Daniels constitutes “criminal harassment,”
subjecting him to possible criminal prosecution.

Massachusetts Criminal Harassment Statute, Mass. Gen. Laws ch. 265, §

43A
Commonwealth v. Welch, 825 N.E.2d 1005 (Mass. 2005)
Commonwealth v. Robinson, 825 N.E.2d 1021 (Mass. 2005)
Commonwealth v. Braica, 861 N.E.2d 487 (Mass. App. Ct. 2007)
Commonwealth v. O’Neil, 853 N.E.2d 576 (Mass. App. Ct. 2006)
Commonwealth v. Paton, 824 N.E.2d 887 (Mass. App. Ct. 2005)
Commonwealth v. Clemens, 814 N.E.2d 384 (Mass. App. Ct. 2004)
Massachusetts Criminal Stalking Statute, Mass. Gen. Laws ch. 265, § 43

LANDLORD-TENANT (CONSTRUCTIVE EVICTION / QUIET ENJOYMENT / NUISANCE

LAW)

Massachusetts landlord/tenant law prohibits landlords from interfering

with the tenant’s possessory rights in the apartment. A landlord would
violate this duty, for example, by preventing the tenant from accessing the
leased property by changing the locks on the door; this would constitute what
is called “actual eviction.” The landlord might also engage in acts that make
the premises unlivable, for example, by excessive noise or odors or by sexually
harassing the tenant; this might constitute what is called “constructive
eviction,” justifying the tenant in breaking the lease and moving out. If a
tenant moves out before the end of the lease term, the landlord may sue her
for the remaining rent, although the landlord may have a “duty to mitigate
damages” that would require the landlord to seek a replacement tenant,
thereby reducing the amount of the rent due over the rest of the lease term.

1
This problem was written by Todd Rakoff and Joseph Singer.

LANDLORD’S DILEMMA: RELEVANT LAW 1 COPYRIGHT © 2010-2013 HARVARD UNIVERSITY

If, however, the landlord has constructively evicted the tenant, then the
tenant’s rent obligations cease.
A hard question is whether the landlord could ever be liable for
constructive eviction for failing to intervene to protect one tenant from the
disturbing conduct of another tenant that makes the victim’s apartment
unlivable. The answer is that there may be such circumstances when the
landlord has a duty to act to stop the harassing activity or to evict the
wrongdoing tenant; the landlord’s failure to do this, if it constitutes
constructive eviction, justfies the victim in breaking the lease and moving out
before the end of the lease term and ceasing rent payments. The question is
whether this is such a case; does Max King have a legal duty to evict Tim
Daniels or otherwise control his behavior such that a failure to comply with
that obligation would entitle Joy Story to move out and be relieved of the
obligation to pay rent.
A related question is whether state law imposes any duties on the landlord
that go beyond those imposed by the constructive eviction doctrine. The
constructive eviction doctrine gives the tenant a defense to a lawsuit by the
landlord for back rent. A duty that goes beyond this is one that would impose
an affirmative obligation on the landlord to do something where the failure to
act would subject the landlord to civil or criminal penalties. For example, state
law may impose penalties on the landlord for failing to evict a drug dealer
from an apartment in his building. So this question is whether any law
obligates our client, Max King, to act in this situation (perhaps by evicting
Daniels) to avoid either civil or criminal penalties.

Massachusetts Landlord/Tenant Statutes (excerpts)

Mass. Gen. Laws ch. 139, §§ 19-20
Mass. Gen. Laws ch. 186, § 14
Mass. Gen. Laws ch. 239, § 2A
Restatement (Second) of Property (Landlord-Tenant) § 6.1
Blackett v. Olanoff, 358 N.E.2d 817 (Mass. 1976)
Doe v. New Bedford Hous. Auth., 630 N.E.2d 248 (Mass. 1994)
Bocchini v. Gorn Mgmt. Co., 515 A.2d 1179 (Md. Ct. Spec. App. 1986)
Gottdiener v. Mailhot, 431 A.2d 851 (N.J. Super. Ct. App. Div. 1981)

FAIR HOUSING LAW

The federal Fair Housing Act, 42 U.S.C. §§ 3601–3617 prohibits

discrimination on the basis of sex and disability (as well as race and religion) in
housing, including rental arrangements. A state statute, Mass. Gen. Laws ch.

LANDLORD’S DILEMMA: RELEVANT LAW 2 COPYRIGHT © 2010-2013 HARVARD UNIVERSITY

151B, §§ 1, 4, has similar provisions. One question is whether it would
constitute disability discrimination to evict Daniels if his behavior is caused by
a mental disability; landlords are obligated to make “reasonable
accommodations” for such disabilities. A second question is whether it would
constitute sex discrimination for the landlord to fail to protect a female tenant
from sexual harassment by a neighboring tenant; the landlord could be
accused of failing to provide female tenants the same kind of environment
provided to male tenants. It is fairly-well established that the landlord is liable
for sex discrimination if the landlord himself sexually harasses a tenant; but is
the landlord ever liable for sex discrimination for failing to act to intervene in
tenant-on-tenant sexual harassment?

Fair Housing Act of 1968, as amended by the Fair Housing Amendments

Act of 1988, 42 U.S.C. §§ 3604, 3617
Massachusetts Anti-Discrimination Law, Mass. Gen. Laws ch. 151B, §§ 1, 4
Andover Hous. Auth. v. Shkolnik, 820 N.E.2d 815 (Mass. 2005)
Richards v. Bono, No. 5:04-cv-484-Oc-10GRJ, 2005 U.S. Dist. LEXIS 43585
(M.D. Fla. April 26, 2005)
Reeves v. Carrollsburg Condo. Unit Owners Ass’n., No. 96-2495(RMU), 1997
U.S. Dist. LEXIS 21762 (D.D.C. Dec. 18, 1997)
Neudecker v. Boisclair Corp.,351 F.3d 361 (11th Cir. 2003)
Lawrence v. Courtyards at Deerwood Ass’n, Inc., 318 F. Supp. 2d 1133 (S.D.
Fla. 2004)
Ohio Civil Rights Comm’n v. Akron Metro. Hous. Auth., 892 N.E.2d 415 (Ohio
2008)

CIVIL REMEDIES/TEMPORARY RESTRAINING ORDERS, PRELIMINARY INJUNCTIONS

AND SUMMARY PROCESS

What civil remedies are available to the landlord King against both Daniels
and Story? What remedies does Story have against both King and Daniels?
Can either King or Story get a temporary restraining order against Daniels to
stop the harassing conduct? Can they get a court order forcing him to move
out of the apartment, either temporarily or permanently? Can King evict
either Story or Daniels and would they have any rights to contest the eviction
or stay in the apartment despite an eviction order?

Temporary Restraining Orders & Preliminary Injunctions, Massachusetts

Rules of Civil Procedure (Mass. R. Civ. P. ), Rule 65
Arndt v. Lawrence, No. 042175, 2005 WL 1812465 (Mass. Super. Ct. May 17,
2005) (not reported in N.E.2d)

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 McElheney v. Gorman, No. 010281, 2001 WL 543242 (Mass. Super. Ct. Mar.
12, 2001) (not reported in N.E.2d)
DelBuono v. Massachusetts Interscholastic Athletic Ass’n, No. 06-00481,
2006 Mass. Super. LEXIS 209 (Mass. Super. Ct. Mar. 13, 2006)
Planned Parenthood League of Massachusetts, Inc. v. Operation Rescue, 550
N.E.2d 1361 (Mass. 1990)
Summary Process Statute, Mass. Gen. Laws ch. 239, §§ 1–13
Harassment Prevention Orders, Mass. Gen. Laws ch. 258E, §§ 1–12

LANDLORD’S DILEMMA: RELEVANT LAW 4 COPYRIGHT © 2010-2013 HARVARD UNIVERSITY