Did Landlord Drag Its Feet on Repairs to Force Tenant Out?

 What Happened: Flooding caused by the bursting of a frozen sprinkler pipe forced a Boston specialty supermarket tenant to temporarily evacuate. After three months of waiting for the landlord to make the needed structural repairs, the tenant lost patience and sued for damages. The jury found that the landlord had violated its lease duty to make structural repairs and awarded the tenant $800,000 in damages, including lost profits for the time it was forced to shut down. It also awarded “specific performance”—that is, an equitable remedy beyond damages requiring the person who violates the lease to actually perform the obligation, in this case making the repairs. The landlord cried foul. A tenant can get either lost damages or specific performance, but not both, it argued.

Decision: The Massachusetts appeals court upheld the verdict.

Reasoning: There’s plenty of case law supporting the notion that a landlord who commits a material breach must pay a tenant’s lost profits, the court began. By contrast, there’s nothing suggesting a tenant can’t get both lost profits and specific performance. But in explaining its reasoning, the court revealed the subtext and real reason for siding with the tenant: The parties negotiated the lease during a soft market, and the tenant’s 10-year renewal option meant the landlord would probably have to endure another decade’s worth of relatively low rent. The court suggested that the landlord might be taking advantage of the burst pipe and dragging its feet on repairs in a deliberate attempt to force the tenant to walk away from the lease.

• Motsis v. Ming’s Supermarket, Inc., 96 Mass. App. Ct. 371, 2019 Mass. App. LEXIS 146, 2019 WL 5704322