reversing summary judgment where evidence indicated landlord failed to take reasonable, relatively easy measures to stop on-going drug dealing in common areas that was so pervasive as to prevent tenants’ use of those areas
How later courts described this case
- reversing summary judgment where evidence indicated landlord failed to take reasonable, relatively easy measures to stop on-going drug dealing in common areas that was so pervasive as to prevent tenants’ use of those areas
- holding loss of use of sidewalks, streets, parking lots and recreational areas constitutes substantial interference with beneficial use of apartment located in public housing project
- private nuisance is actionable when property owner creates, permits, or maintains condition or activity on its property that causes substantial and unreasonable interference with use and enjoyment of property of another
- a tenant cannot sue his own landlord for a nuisance on the property that the tenant rents from the landlord
Written by the judges who cited it.
The opinion
Lynch, J.
(dissenting in part). General Laws c. 121B, § 32D (1992 ed.), confers on tenants of public or subsidized housing the authority to bring an action to require their landlord to seek injunctive or other appropriate relief as provided in G. L. c. 121B, § 32C (1992 ed.). 1
Section 32D states that the tenant can bring an action against the landlord only “provided that the landlord of the public or subsidized housing development has actual or constructive notice of said unlawful conduct” (emphasis supplied). The court concludes today that § 32D does not ex *290 pressly place the burden of ascertaining the names of offenders on those tenants seeking to avail themselves of the remedies afforded by §§ 32C and 32D. Even assuming that to be true, neither does the statute place on the housing authority the burden of bringing an, action for equitable relief against such persons, the identity of whom they have no actual or constructive knowledge.
The court concedes that the housing authority may pursue an injunction pursuant to § 32C only against named nontenants. Ante 278 at n.6. A fundamental principle of statutory construction is that, in interpreting any particular provision, it should be construed as part of the statute as a consistent whole. Walker v. Board of Appeals of Harwich, 388 Mass. 42, 51 (1983). Thus, reading § 32D along with § 32C to which it refers, the logical conclusion is that the housing authority must have actual or constructive notice of the unlawful conduct by a person before a duty arises under §§ 32C or 32D to seek an injunction or other relief. Accordingly, in order to sustain a § 32D action, tenants must either name the offenders or they must show that the housing authority has actual or constructive notice of the identity of such offenders.
The affidavits offered by the plaintiffs do not identify those who have conducted unlawful activities on housing authority common areas, nor do the affidavits assert that the housing authority has actual or constructive notice of the identities of such persons.
I conclude, therefore, that the judge correctly granted summary judgment in favor of the defendant housing authority.
General Laws c. 121B, § 32C (1992 ed.), provides: “Whenever a person who is not a member of a tenant household has, on or near a public housing development or a subsidized housing development: ...(e) unlawfully sold or possessed with intent to distribute a controlled substance . . . the landlord of such premises may bring a civil action for injunctive or other appropriate equitable relief in order to prohibit said person from entering or remaining in or upon the public or subsidized housing development . . . .”