Bocchini v. Gorn Management Co.

WILNER, Judge. Fed up with the noise from her upstairs neighbors and her landlord’s apparent unwillingness to do anything to stop it, Carol Bocchini and her young daughter vacated their apartment at 5718-5C Plainfield Avenue on August 8,1985. The landlord’s agent, Gom Management Company, believed the departure to constitute a breach of Ms. Bocchini’s lease and so filed suit against her in the District Court, seeking lost rent, other damages, and attorney’s fees. By praying a jury trial, Ms. Bocchini caused the case to be removed to the Circuit Court for Baltimore County, where she filed a counterclaim against the agent and the two alleged owners of the apartment, Samuel and Morton Gom. 1 The counterclaim contained five counts: Breach of a covenant of quiet enjoyment and constructive eviction (Count I); Negligence (Count II); Deceit (Count III); Nui ⁴ sanee (Count IV); and Breach of Md.Code Ann. Real Prop, art., § 8-203(c), dealing with security deposits (Count V).

The court granted the landlord’s motion to dismiss Counts I through IV, apparently on the ground that they failed to state a claim upon which relief can be granted, determined that there was no just reason for delay, and entered judgment in favor of the landlord on those counts. See Md.Rule 2-602. Count V remains undecided; this appeal by Ms. Bocchini is from the judgments entered on the first four counts. The facts pled in support of Counts I-IV were essentially these.

Ms. Bocchini rented the apartment in February, 1978. In the fall of 1979, the Seaberrys moved upstairs, into apartment 5-E. In 1983, the Seaberrys separated; thereafter, Mrs. Seaberry began to keep company with a Mr. McClean, who became a frequent visitor at Mrs. Seaberry’s apartment and, in June, 1985, actually moved into the apartment. There was no carpeting in the Seaberry apartment, and, while Mr. McClean was present, there would be “unbearable” noise coming from it. The noise consisted of “clomping on the floor from persons walking or running heavily, exercising taking place on the floor, a very loud alarm clock going off at approximately 5:00 a.m., and playing the stereo extremely loudly at late hours.” After making “repeated efforts” to resolve the problem with Mrs. Seaberry, Ms. Bocchini, in April, 1984, complained to Gom, informing it that the noise “continued unabated and that it was impossible for her and her daughter to get adequate sleep or quietly enjoy the premises they had rented.” At one point, the noise caused Ms. Bocchini and her daughter to sleep at a neighbor’s house.

Eventually, after several communications by Ms. Bocchini, Gom acknowledged the problem and promised to take some action. On two occasions, once in May and once in June, it apparently wrote to Mrs. Seaberry, informing her of Ms. Bocchini’s complaint, but the letters had no effect; the problem continued—“stomping on the floors at unreasonable hours, such as 12:30 and 2:30 in the morning, loud music, the ⁵ banging of doors, yelling and banging on the walls.” Ms. Bocchini wrote to Gom on June 18, 1984, and again on July 9. In a subsequent telephone conversation, Gom said that it was “not going to take any action regarding the problem.” On July 31,1984, Ms. Bocchini was unable to get to sleep until after midnight because of the “clomping and banging on the floor over her bedroom”; the noise began again at 5:45 a.m. As Ms. Bocchini was leaving her apartment later that morning, McClean shouted obscenities at her and actually threatened her.

Ms. Bocchini complained of that as well, but again Gom refused to take any action. On August 2, she and her daughter, exhausted and in fear, moved in with friends; six days later, upon the advice of her physician, they permanently vacated the apartment. Those averments, as we said, are common to all four counts at issue here. Additional allegations more specifically related to the respective causes of action also appear, but we shall consider them as part of our discussion of the individual counts.

I. Quiet Enjoyment/Constructive Eviction In Count I, Ms. Bocchini alleged that Mrs. Seaberry’s lease “included a clause against excessive noise” as well as one “barring unauthorized persons from living in the apartment.” Her action was based in large part upon the landlord’s refusal to enforce those provisions. 2 She claimed further that the landlord’s failure to take positive action to move her to another apartment or, after informing Mrs. Seaberry about Ms. Bocchini’s complaints, to evict Mrs. Seaberry or Mr. McClean “ratified and encouraged the behavior of the upstairs tenants.” The landlord defends this Count on two bases. First, it contends that the common law implied covenant of quiet ⁶ enjoyment, upon which Ms. Bocchini relies, is not applicable to residential leases but affects only commercial leases. The sole right of quiet enjoyment applicable to residential leases, it continues, is that provided by Md.Code Ann. Real Prop, art., § 8-204(b), which merely assures that a tenant may peaceably and quietly enter the leased premises “at the beginning of the term of any lease.” That provision, it argues, does not apply to a situation occurring after the tenant has already entered into possession under the lease; hence, no covenant, no breach, no constructive eviction. The landlord’s second line of defense is that, even if the general implied covenant is applicable to residential leases, (1) it is not violated when the disturbance is caused by other tenants, and (2) in any event, Ms. Bocchini’s remedy lies solely under the Baltimore City rent escrow law.

We reject both lines of defense. A. Implied Covenant Of Quiet Enjoyment and § 8-20j(b) In Baugher v. Wilkins, 16 Md. 35 (1860), the Court of Appeals recognized as a matter of common law “that a lessee who holds under one who has a fee in the premises demised, is entitled to the quiet enjoyment of them during his term, and there is an implied covenant to that effect on the part of the lessor in the case where none is expressed, if the contrary be not stated.” Id., 44r45 (emphasis in original). The covenant “insulates the tenant against acts or omissions on the part of the landlord, or anyone claiming under him, which interfere with the tenant's right to the use and enjoyment of the premises for the contemplated purposes.” Q C Corporation v. Maryland Port Administration, 68 Md.App. 181 , 510 A.2d 1101 (1986), petition for cert. filed, No. 337, S.T. 1986, August 15, 1986, quoting 3 G. Thompson, Thompson on Real Property, § 1130, p. 456 (1980 Repl.Vol.). See also 1 H. Tiffany, The Law of Real Property, 3d ed., § 91, p. 137 (1939). ⁷ Despite the assertions of the landlord in this case, we find nothing in the case law or the literature to suggest that this common law implied covenant did not apply to residential leases.

Indeed, the law seems to be quite to the contrary. The general rule expressed by the courts is that a covenant of quiet enjoyment is implied in every lease, absent some provision in the lease negating such an implied covenant. 3 See Western Stock Center, Inc. v. Sevit, Inc., 195 Colo. 372 , 578 P.2d 1045 (1978); Pollock v. Morelli, 245 Pa.Super. 388 , 369 A.2d 458 (1976); Smith v. Hightower, 80 Ga.App. 293 , 55 S.E.2d 872 (1949); 64 East Walton v. Chicago Title & Trust Co., 69 Ill.App.3d 635 , 25 Ill.Dec. 875 , 387 N.E.2d 751 (1979); Stewart v. Murphy, 95 Kan. 421 , 148 Pac. 609 (1915); 51C C.J.S., Landlord & Tenant, § 323(1), p. 831 (1968). Tiffany observes that the covenant is implied “from the mere relation of landlord and tenant____” H. Tiffany, supra, § 91, p. 138. See also Duncklee v. Webber, 151 Mass. 408 , 24 N.E. 1082 (1890), where such a covenant was implied in a residential lease.

That clearly is the law in Maryland. In 1971, the General Assembly codified some of the common law relating to property, including the common law implied covenant of quiet enjoyment. By 1971 Md.Laws, ch. 649, it added as new § 94A to then-art. 21 of the Code: “There shall be no implied covenant or warranty by the grantor as to title or possession in any grant of land or of any grant of an interest or estate in land except that in any lease, unless the lease provides otherwise, there shall be an implied covenant by the lessor, his personal representatives and assigns that the lessee, his personal representatives and assigns shall quietly enjoy said land.” (Emphasis added.) That provision, sanitized a bit as to style through the Code-revision process, now appears as § 2-115 of the Real ⁸ Property article. It is part of title 2 of the article, containing rules of construction applicable throughout the whole of the Real Property article, and provides: “There is no implied covenant or warranty by the grantor as to title or possession in any grant of land or of any interest or estate in land.

However, in a lease, unless the lease provides otherwise, there is an implied covenant by the lessor that the lessee shall quietly enjoy the land.” 4 This statute, both from its wording and from its purpose as a mere codification of the common law principle, applies to every lease, including residential leases. Section 8-204(b) in no way detracts from or circumscribes § 2-115. Indeed, its purpose was to extend, rather than restrict, the general implied covenant of quiet enjoyment. As noted, the Court in Baugher v. Wilkins stressed that the covenant protected a tenant only during the term of the lease.

Thus, as a general rule, the covenant was not breached by a failure to deliver the premises at the beginning of the term. Sigmund v. Howard Bank, 29 Md. 324 (1868). Section 8-204(b) addresses that situation. Enacted in 1972 (1972 Md.Laws, ch. 573), it emanated from the Governor's Commission on Landlord-Tenant Law Revision which, in its 1972 Report to the Governor, characterized the proposal thusly: “The Commission also has extended the doctrine of quiet enjoyment of the premises to require the landlord to deliver the leased premises to the tenant at the beginning of the term.

Presently, if the prior tenant holds over, it is the responsibility of the incoming tenant to evict him. This would place the burden on the landlord to evict the tenant who is holding over. Copies of the bills in legislative form are attached.” (Emphasis added.) Count I, then, is governed by § 2-115, not by § 8-204(b). ⁹ B. Conditions Caused By Other Tenants—Remedy We turn then to the landlord’s second line of defense, which, as noted, is a bipartite one. Preliminarily, the landlord asks us to dismiss, offhand, Ms. Bocchini’s averment that the Seaberry lease contained restrictions against excessive noise and unauthorized residents because the entire lease is not in the record.

We reject that entreaty. To withstand a motion to dismiss for failure to state a claim, a complaint does not have to be supported by extrinsic evidence. In judging its legal sufficiency, we assume the truth of all relevant and material facts that are well-pleaded and all inferences that can be reasonably drawn from the complaint. Sharrow v. State Farm Mutual Automobile Insurance Co., 306 Md. 754 , 511 A.2d 492 (1986).

Ms. Bocchini’s averment that the Seaberry lease contained the restrictions noted suffices at this point. Acknowledging that some courts, in what it regards as distinguishable circumstances, have held to the contrary, the landlord argues that a breach of a covenant of quiet enjoyment and a constructive eviction cannot be based upon disturbances caused by another tenant. Secondarily, it contends that, even if such a breach or eviction could be premised on the actions of another tenant, Ms. Bocchini’s sole remedy lies under the Baltimore City rent escrow law (Public Local Laws of Baltimore City, §§ 9-9 and 9-9A). 5 (i) On the principal argument that a landlord cannot be held to have breached a covenant of quiet enjoyment or to have constructively evicted a tenant because of conditions created by another tenant, the law seems to be in a state of flux and disarray. The traditional view, well summarized by R. Schoshinski, American Law of Landlord and Ten ¹⁰ ant, § 3:7 (1980), is as espoused by the landlord—that a landlord “is not responsible for the activities of his tenants.

The mere existence of a legal relationship between landlord and tenant is not sufficient to impose a duty on the landlord concerning tenant conduct. The test is frequently fashioned to require both the landlord’s knowledge and permission or authorization of the conduct before it will be attributable to him.” See also Annot., Breach of covenant for quiet enjoyment in lease, 41 A.L.R.2d 1414 , 1441 (§ 22) (1955). That rule, still followed by a number of courts, was never universal and, in more recent times, has been increasingly abandoned. See, for example, the later Annotation, Landlord and Tenant: Constructive Eviction By Another Tenant’s Conduct, 1 A.L.R.4th 849 , 854, 859-62 (1980).

The Restatement (Second) of Property, § 6.1 (1977), adopts the more recent view. Section 6.1 provides, in relevant part, that, absent some contrary agreement, “there is a breach of the landlord’s obligations if, during the period the tenant is entitled to possession of the leased property, the landlord, or someone whose conduct is attributable to him, interferes with a permissible use of the leased property by the tenant.” (Emphasis added.) In comment d to § 6.1, the point is made that, “The conduct of a third person outside of the leased property that is performed on property in which the landlord has an interest, which conduct could be legally controlled by him, is attributable to the landlord for the purposes of applying the rule of this section.” (Emphasis added.) Illustration 11 under that comment presents precisely the circumstances pled in this case: “L leases an apartment to T. L leases another apartment in the same building to A. Under the terms of each lease, L reserves the right to terminate the lease if a tenant persists in making noises disturbing to other tenants after being requested to stop the disturbing noises. T ¹¹ complains to L about disturbing noises of A and L refuses to do anything. The noises of A are attributable to L for the purposes of applying the rule of this section.” For cases finding a breach of a covenant of quiet enjoyment or a constructive eviction based on disturbances by another tenant where the landlord has some measure of control over the offending tenant, see Colonial Court Apartments, Inc. v. Kerr, 282 Minn. 533 , 163 N.W.2d 770 (1968); Home Life Ins.

Co. v. Breslerman, 168 Misc. 117 , 5 N.Y.S.2d 272 (1938); Cohen v. Werner, 85 Misc.2d 341 , 378 N.Y.S.2d 868 (1975); Blackett v. Olanoff, 371 Mass. 714 , 358 N.E.2d 817 (1977); Eskanos and Supperstein v. Irwin, 637 P.2d 403 (Colo.Ct.App.1981); Gottdiener v. Mailhot, 179 N.J.Super. 286 , 431 A.2d 851 (App.Div.1981); Bruckner v. Helfaer, 197 Wis. 582 , 222 N.W. 790 (1929); Hannan v. Harper, 189 Wis. 588 , 208 N.W. 255 (1926). It does not appear that the appellate courts of Maryland have yet addressed this question precisely. 6 Subject to review by the Court of Appeals, we may therefore elect to follow either the more traditional view, declining to attribute the sins of the tenant to the landlord, or what seems to be the more modem view articulated in the Restatement, comment d and Illustration 11. We think that the latter is more appropriate. The traditional view rests essentially upon the notion that a landlord should not be responsible for the actions of persons over whom he has no control.

In the older cases, tenants were treated much the same as trespassers or other strangers in that regard; unless the landlord in some way authorized or sanctioned the offensive conduct, he would not be held liable for it. ¹² Our concern is not with the underlying principle but rather with its application. The more recent cases dwell not so much on whether the landlord has approved the conduct of the tenant as whether he is in a position to correct or terminate it. Where, through lease provisions or otherwise, he has that ability, the thought is that he ought not to be able to escape his obligation under a covenant of quiet enjoyment by steadfastly refusing to exercise his authority. We adopt that view.

It is fair and it is reasonable. The insertion in a lease of a restriction against excessive noise or other offensive conduct is precisely for the purpose of enabling the landlord to control that conduct. Its principal function—at least in a multi-unit apartment lease—is to protect the right of other tenants to the quiet enjoyment of their homes by allowing the landlord to evict a tenant who transgresses upon that right. Compare Parklawn v. Nee, 243 Md. 249, 253 , 220 A.2d 563 (1966), holding that a landlord is not liable for a nuisance created and maintained by his tenant when the landlord “does not have the ability to do anything to abate the nuisance during the tenant’s term.” Upon this view, we believe that Ms. Bocchini has sufficiently pled a breach of the now-statutory implied covenant of quiet enjoyment leading to a constructive eviction. 7 (ii) With the benefit of neither authority nor persuasive logic, the landlord argues that, even if Ms. Bocchini has sufficiently pled a case of breach of covenant or construc ¹³ tive eviction, her sole remedy lies under the rent escrow provisions of §§ 9-9 and 9-9A of the Code of Public Local Laws of Baltimore City.

We see no merit whatever to that view. Section 9-9 was designed to deal with structures that are “substandard with respect to structure, equipment or maintenance” § 9-9(a). It allows the escrowing of rent when there exists a condition that does or will “constitute a fire hazard or serious threat to the life, health, or safety of occupants ... including ... a lack of heat or of hot or cold running water ... or of light or of electricity or of adequate sewage disposal facilities or an infestation of rodents ... or of the existence of paint containing lead pigment within the dwelling ...” § 9-9(b). Section 9-9A permits similar escrowing of rent where “there exists on the leased premises a condition which constitutes a material noncompliance by the landlord with the written lease or a condition which constitutes a repudiation of a written inducement to rent the premises, such as ...

(1) Lack of functional and sufficient laundry, cooking, or dishwashing facilities; (2) Lack of functional refrigeration or air conditioning; (3) Lack of proper maintenance; or (4) Lack of specified recreational facilities.” Assuming, arguendo, that the condition pled by Ms. Bocchini—excessive and incessant noise—falls within the ambit of either section, we find nothing in those sections purporting to make the rent escrow remedy an exclusive one. Indeed, the law is couched in terms of what the tenant “may” do when faced with the circumstances mentioned in the statute, not what he “must” do. See § 9-9(b) and (c); § 9-9A(a). We made clear in Stevan v. Brown, supra, 54 Md.App. 235, 242 , 458 A.2d 466 , that, while “commonly raised as a defense to a landlord’s action for rent ...[,] constructive eviction may provide a litigant with a sword, as ¹⁴ well as a shield.” We observed that other courts have allowed constructively evicted tenants to recover moving expenses, lost profits, attorney’s fees, and other past and future damages, and we concluded, in that case, that the tenant could recover for a renewal term lost by reason of the constructive eviction.

We quoted, with tacit approval, from Weighley v. Muller, 51 Pa.Super.Ct. 125, 132 (1912): “If the tenant was evicted by the landlord or by acts equivalent to an eviction was deprived of his pecuniary interest under the lease, he was entitled to recover as damages the loss suffered by him—to be put in the same position pecuniarily as he would have been if the contract had been kept—when the damages are the natural result of