Aviksis vs Murray (tenant Guarantors not responsible for landlord’s attorney’s fees even if tenant responsible)


Aviksis was the landlord and Murray was the father of the tenant. Murray signed as a Guarantor guaranteeing that he would pay if his son did any damages.

In this case the anti-landlord Appeals Court of MA finds a way (when there is a will, there is a way, right?) to rule that if the tenant caused unpaid damages and you had to ask the Guarantor to pay, they won’t be responsible to cover your attorney’s fees EVEN IF there was a clause in the lease saying that the tenant is responsible to cover landlord’s attorney’s fees in case they went to court. (As a side note here, that’s why I never accept guarantors. I make them part of the lease with their name right at the top as a tenant.)

If that’s not outrageous enough, there is something else in this case that I find even more outrageous:

The lease provided that the tenants were responsible for all separately metered utilities but the tenants did not put the gas in their name nor did they pay the bill and eventually the gas company turned off the heat during a period when the tenants were away from the apartment. It was during this time that the apartment was damaged by water when pipes froze and burst. The landlord repaired the damage. The tenants stayed until the expiration of the lease and then they sued the landlord because “the water damage left part of the unit uninhabitable”. The landlord fired back by saying: actually the water damage was caused by the tenants, you know, look at the evidence. Then a housing judge looks at the above evidence and….wait for it….wait for it….here it comes…decides that the Landlord “failed to show that the tenants” were responsible for the water damage and even though, the judge finds, that the burst pipes had nothing to do with the landlord and there was no unreasonable delay with the restoration of the heat, the housing court judge still finds in favor of the tenant.

IMG_1297Who does this housing judge think was responsible for the frozen pipes? Santa?

Excuse me, this is not a criminal case where you have to prove something “beyond a reasonable doubt”(even though, frankly, just by reading this case, it is beyond a reasonable doubt that the tenants caused the pipes to burst). But this is a civil case where you only need to prove that something is more “likely than not” and even that basic and easy to reach standard was not good enough for this anti-landlord housing judge to find in favor of the landlord.

Which brings me to the question: What does a MA tenant need to do to be found responsible for causing damages?

Because the tenant won, his father asked to get compensated for his attorney’s fees and the housing judge naturally took his side and issued the order. Thankfully the Appellate Court were slightly (and I do mean slightly) more schooled in logic and reversed her ruling stating that if the Landlord is not entitled to Attorney Fees when he sues a Guarantor (unless it’s in a separate agreement with the Guarantor), then logically the Guarantor is not entitled to have the landlord pay his Attorney’s Fees either.

What a mess!

Here is how this case should have been decided: The tenants caused some damages to the apartment and they should pay for them or their Guarantor. Since they did not pay for them and the landlord had to resort to hiring a lawyer, the tenants and therefore their Guarantor should cover that cost as well since there was some language in the lease stating that the tenant is responsible for attorney fees. The landlord should pay to the tenants what he owes them because of mishandled security deposit. That’s all.

And by the way, the Appellate Court Judge who wrote this Opinion should win an award for a most convoluted writing style. I had to read this case at least 3 times to figure out what he was talking about. Clearly he is not aware of the KISS (Keep It Simple, Stupid) doctrine. Decisions should be written so that regular people can understand them.


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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,
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.
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.
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
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.
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,
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.
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).
“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
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
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.
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.