When a landlord breached a commercial lease obligation to make structural repairs to the property, the tenant was entitled to lost profits in addition to specific performance. Motsis v. Ming’s Supermarket, Inc., 2019 WL 5704322 (Mass. App. Ct. 2019). The tenant had been constructively evicted when a sprinkler pipe froze and burst, leading to an inspection by the city that found numerous unsafe structural conditions that led the tenant (a grocery store) to move out of the premises). The trial court properly ruled that the tenant was not limited to a right to terminate the lease and recover relocation costs. The Massachusetts Appeals Court rejected the argument that specific performance is limited to promises to convey title to land, holding that it is available and proper in lease arrangements as well. In addition, the landlord’s “disregard of known contractual relationships…constitutes an unfair act or practice” under the state consumer protection statute.

When a landlord sued to evict a tenant for failure to pay rent, the court ordered to make rental payments (for “use and occupancy”) during trial. The Massachusetts Appeals Court held that before ordering such payments, the trial judge must hold a hearing to determine whether the payments should be reduced because of defective conditions in the property. Davis v. Comerford, 133 N.E.3d 373 (Mass. App. Ct. 2019). And while such payments are normally paid to the court and held in escrow, they may be delivered directly to the landlord if needed to make mortgage payments on the property. The court interpreted a state statute making tenants at sufferance liable for “use and occupancy” but noted that case law did not measure the value of use and occupancy by the agreed-upon rent but upon the “sum which the trier of fact finds the use and occupation were reasonably worth,” 133 N.E.3d at