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Aviksis v. Murray

Appeals Court of Massachusetts, Suffolk

March 6, 2015

Felix Aviksis & another [1]
v.
Kevin Murray & others. [2]

Argued November 24, 2014

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.

Present: Meade, Hanlon, & Carhart, JJ.

OPINION

Carhart, J.

Felix Aviksis appeals from a judgement of the Boston Division of the Housing Court Department awarding attorney's fees pursuant to G. L. 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

Page 142

Brighton. The property is owned by 27-29 Sutherland Road, LLC; Aviksis is a manager of the LLC [26 N.E.3d 749] 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 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 ...


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