Civil action commenced in the Eastern
Division of the Housing Court Department on December 11, 2020.
The case was heard by Irene H. Bagdoian,
J., on a motion for summary judgment, and a motion for reconsideration was also
heard by her.
Lenard B. Zide for the defendants.
John A. Mangones for the plaintiffs.
SACKS, J.
The defendants, a rental property management company and the property
owner (collectively, the landlord), appeal from a Housing Court judgment
concluding, on the plaintiff tenants' motion for summary judgment, that the
landlord had failed timely to return the tenants' security deposit as required
by G. L. c. 186, § 15B.
The judgment requires the landlord to pay damages equal to three times
the deposit plus interest, together with costs and attorney's fees. See G. L. c. 186,
§ 15B (7). On appeal, the
landlord argues that the motion judge (1) abused her discretion in ruling on a
discovery matter that the landlord raised in opposing summary judgment, (2)
erred in ordering summary judgment where there remained genuine issues of
material fact regarding whether the landlord had violated the statute, (3)
erred in declining to recognize the landlord's force majeure defense based on
the COVID-19 pandemic, and (4) abused her discretion in awarding $17,780 in
attorney's fees where the amount of the security deposit, trebled, was only
$7,275. We affirm.
Background. We recount the undisputed facts shown in the
summary judgment record, noting also a possible factual dispute that we
conclude is not material. The landlord
owns and manages a residential apartment unit in Boston. On January 24, 2018, the plaintiffs, Jacob
Slater and Nicholas Alessi (collectively, the tenants), acting jointly and
severally, executed a lease agreement with the landlord for the apartment for
the period from September 1, 2018, to August 31, 2019. The parties later extended the lease for a
year, so as to expire on August 31, 2020.
As part of the lease, Slater paid the landlord a $2,425 security
deposit.[3]
On August 31, 2020, the lease expired and the
tenants vacated the apartment.
Immediately after moving out, Slater contacted an officer of the
landlord, Wendy Traynor, to ask when the security deposit would be returned. On September 1, 2020, Traynor sent a text
message to Slater acknowledging that the landlord was holding the security
deposit and further stating, "I have [thirty] days to send it back. I need to talk to [the landlord's facilities
manager] and make sure there's no damage.
I'm not really worried. Please
email forwarding addresses." Slater
replied that same day with a text message saying that he would send Traynor his
new address by e-mail.
On September 15, 2020, the facilities
manager inspected the apartment and found it to be in the condition required
under the lease. The landlord asserts
that Traynor then called Slater and told him that, if he wanted his check
immediately, he could schedule a time to meet her at the management office,
which was closed due to the COVID-19 pandemic.[4] Slater denies ever receiving such a call from
Traynor.[5]
On September 23, 2020, the deposit not
having been returned, Slater sent a text message to Traynor, stating that he
had sent an e-mail message to her with his and Alessi's addresses "for our
security deposit but I never heard anything back so I thought I'd shoot you the
info again via text." That same
day, Traynor replied, "End of [S]ept." Slater then sent another text message to
Traynor, which listed his mailing address in Forest Hills, New York, and
Alessi's mailing address in Weymouth, Massachusetts. On September 30, 2020, Alessi sent a text
message to Traynor asking when he could expect the return of the security
deposit. Traynor did not respond to that
message.
On October 28, 2020, nearly two months
after the end of the tenancy, Slater retained an attorney, who sent the
landlord a demand letter seeking return of the security deposit, trebled, plus
$363.75 in interest and $1,250 in attorney's fees, for a total of $8,888.75. On November 4, 2020, the landlord's counsel
responded, disputing much of Slater's attorney's legal analysis but indicating
that he would return Slater's half of the security deposit and would be willing
to return Alessi's half if furnished proper authorization. Counsel also proposed that the parties sign
general releases. The following day, the
landlord's counsel sent a letter to Slater's attorney enclosing separate checks
made out to Slater and Alessi, each for $1,236.87, representing half of the
security deposit plus some interest, but not treble damages or attorney's fees.[6] After negotiations over additional payments
to the tenants failed, the tenants commenced this action in the Housing Court.
The landlord moved, unsuccessfully, to
dismiss the complaint, counterclaimed for abuse of process, and conducted
considerable discovery, leading to a motion (discovery motion) to determine
whether Slater's objections to certain requests for admissions about his
attorney's demand letter were insufficient.[7] The tenants, after conducting
minimal discovery, moved for summary judgment.
The landlord filed a response pursuant to Mass. R. Civ. P. 56 (f),
365 Mass. 824 (1974), asking that the judge rule on their discovery motion.
At a hearing, the judge denied the
discovery motion and then heard argument on the tenants' motion for summary
judgment. She later issued a written
decision concluding that, on the undisputed facts, the landlord had violated
the security deposit law by failing to return the deposit within thirty days
after termination of the tenancy. See
G. L. c. 186, § 15B (4), (6) (e). She ruled that the landlord was liable for
three times the amount of the deposit plus interest, along with costs and
attorney's fees.[8] See G. L.
c. 186, § 15B (7).
The landlord moved for reconsideration,
contending that the judge had overlooked the dispute of fact regarding whether
Traynor had called Slater and offered to return his security deposit to him at
the management office. After a hearing,
the judge ruled that the dispute was not material, because the law required the
"security deposit to be returned" within thirty days after
termination of the tenancy and did not allow a landlord to escape liability by
merely "trying" to return a deposit.
The judge also allowed the full amount of the tenants' attorney's fees
request, $17,780, plus costs. This
appeal followed.[9]
Discussion. 1.
Rule 56 (f). The landlord
first argues that the judge abused her discretion in denying its request under
rule 56 (f) to defer action on the tenants' summary judgment motion until
the judge ruled on the landlord's discovery motion. This argument is meritless because, at the
summary judgment hearing, the judge in fact proceeded as the landlord had
requested.
The landlord's rule 56 (f) request, made
as part of its summary judgment opposition, was notably vague. The opposition recited that (1) there
were genuine issues of material fact (without specifying what those issues
were); (2) the landlord's discovery motion was outstanding; and
(3) the judge could, under rule 56 (f), defer ruling on the summary
judgment motion, because the landlord had shown a need for additional time to
marshal facts essential to its opposition (without specifying what those facts
were). The opposition "request[ed]
relief under . . . [r]ule 56 (f)," without specifying how
much time or what additional discovery the landlord needed. The opposition also asked the judge to deny
the summary judgment motion, but it specified no basis for doing so.
At the motion hearing, the judge first
heard argument on the landlord's discovery motion. She concluded that Slater's objections were
sufficient and that allowing the motion would not produce any relevant or
material evidence; she therefore denied it from the bench. The judge then heard argument on the tenants'
summary judgment motion and took it under advisement. At no time during the argument did the
landlord object that, given the denial of its discovery motion, it needed
additional time to prepare a more substantive summary judgment opposition than
it had already filed.[10] Indeed, the
landlord was able to make the same argument about counsel's demand letter --
that the letter was sent before counsel represented Alessi -- that it could
have made had its discovery motion been allowed.
In these circumstances, we see no abuse of
discretion in the judge's action on the landlord's rule 56 (f)
request. She effectively allowed it, by
ruling on the landlord's discovery motion before reaching the merits of the
tenants' summary judgment motion.[11]
The landlord neither objected at the time to the manner in which the
judge proceeded nor has shown any resulting prejudice.
2.
Landlord's attempt to "return" deposit. The landlord next argues that summary
judgment was erroneous because, in light of Traynor's claimed telephone call to
Slater offering to meet at the management office, there remained a genuine
issue of material fact regarding whether the landlord had violated the
requirement to return the deposit within thirty days of the end of the tenancy. "We review a grant of summary judgment
de novo, construing all facts in favor of the nonmoving party." Miller v. Cotter, 448 Mass. 671, 676 (2007).
Under G. L. c. 186,
§ 15B (4), "[t]he lessor shall, within thirty days after
. . . the end of the tenancy as specified in a valid written lease
agreement, return to the tenant the security deposit or any balance
thereof,"[12] subject to certain permissible deductions not applicable
here. Here, the landlord asserts that
its claimed attempt (through Traynor's telephone call) to return the deposit to
Slater, if proved at trial, would insulate it from liability under the
statute. The judge ruled that any
dispute of fact regarding the telephone call was not material, because nothing
in the statute protects a landlord from liability where that landlord has
merely attempted, unsuccessfully, timely to return the deposit. In these circumstances, we agree with the
judge.
The law is clear that where, as here,
there are no permissible deductions from the security deposit, the entire
deposit plus interest must be returned within thirty days after the end of the
tenancy, and the failure to do so entitles the tenant to treble damages and
attorney's fees. In Taylor v. Beaudry,
82 Mass. App. Ct. 105 (2012) (Taylor II) -- recounting our earlier
decision in the same case, Taylor v. Beaudry, 75 Mass. App. Ct. 411 (2009)
(Taylor I) -- we said: "the
cause of action under G. L. c. 186, § 15B(7), for failure
to return a security deposit to a tenant as required by § 15B(6)(e) arises
when the landlord 'fails to return to the tenant the security deposit
. . . within thirty days after termination of the
tenancy.'" Taylor II, supra at
107, quoting Taylor I, supra at 415-416, quoting
§ 15B (6) (e). We added
"that a subsequent, late payment of the security deposit by the landlord
in response to a demand by the tenant does not entitle the landlord to
dismissal of the tenant's complaint."
Taylor II, supra. And we
reiterated: "by its 'unambiguous'
language the statute does not require landlords to return security deposits
only when threatened with litigation. . . . Rather, [in Taylor I] we said that the
statute requires landlords to follow its 'clear' terms and return security
deposits within thirty days of the termination of tenancy or risk suits like
this one for treble damages."[13]
Taylor II, supra at 111, quoting Taylor I, supra at 416. See Phillips v. Equity Residential Mgt.,
L.L.C., 478 Mass. 251, 259 (2017).
In Taylor II, because "both the
mailing and the receipt of the security deposit took place beyond the statutory
thirty-day deadline," we declined to reach the question whether "the
statute requires receipt, not simply mailing, of the security deposit within
thirty days."[14] Taylor II,
82 Mass. App. Ct. at 109-110. See
Taylor I, 75 Mass. App. Ct. at 417 n.13.
Here, we consider a related question:
whether a landlord's assertedly reasonable effort to return a security
deposit within thirty days, followed by a tenant's late receipt of the deposit
due to circumstances beyond the landlord's control, would constitute a
"return" of the deposit under the statute or otherwise protect the
landlord from any part of the liability imposed by the statute. We adopt an approach similar to
Taylor II, concluding that we need not resolve this question because, even
if the answer is "yes," the landlord's efforts here were unreasonable
as a matter of law. In particular, the
landlord unreasonably failed to return the deposit to the tenants by mail, so
the tenants' late receipt of the deposit was not due to circumstances beyond
the landlord's control. Thus, the
landlord is liable for violating the statute.
The undisputed facts are that the landlord
(1) knew by September 15 that the tenants were entitled to return of the full
amount of the deposit plus interest by the end of September; (2) believed that
it was feasible to return the deposit by mail and that the tenants expected
return by that means; and (3) drafted checks to return the deposit on September
15, but did not mail the checks or otherwise return the deposit to the tenants
by September 30.[15] Nowhere in the
summary judgment record is there evidence of why the landlord did not timely
return the deposits by mail, as the tenants requested.[16]
Even if Traynor called Slater on September
15 and invited him to arrange to pick up a check at the management office
(which Slater disputed), she knew from his text message on September 23 that he
claimed not to have heard from her despite previously sending his and Alessi's
mailing addresses, and he sent her the addresses again on that date so that she
could return the deposit.[17] Slater's
address was in New York, and Alessi's was in Weymouth, Massachusetts. Thus, Traynor was on notice that for Slater
to come from New York (or Alessi from Weymouth) to the management office in
Boston would, at a minimum, be quite inconvenient for them.[18]
To evaluate the reasonableness of the
landlord's efforts, we turn to the concept of "tender." Our decisions have often assumed that the
"return" of a security deposit necessarily includes, although is not
limited to, the landlord making a tender of the money to the tenant. Most recently, in Henry v. Bozzuto Mgt. Co.,
98 Mass. App. Ct. 690 (2020), we recounted how a landlord had "tendered a
check made out to the [tenants] for the full amount," but the tenants
"rejected . . . the tender." Id. at 693.
See id. at 697 ("making a tender . . . requires
production of the entire amount owed").
See also Taylor I, 75 Mass. App. Ct. at 415 n.9; Young v.
Patukonis, 24 Mass. App. Ct. 907, 909 (1987); Castenholz v. Caira, 21 Mass.
App. Ct. 758, 764 (1986); Goes v. Feldman, 8 Mass. App. Ct. 84, 92 (1979).
As a general matter,
"[t]o
constitute a valid tender the money must be actually produced and offered to
the person who is entitled to receive it. . . . There must be an actual production of the
money unless such production be dispensed with by the declaration of the party
to whom it is due that he will not receive it, or by some equivalent
declaration or act. A mere offer to pay
or a statement that the party has the money and is ready and willing to pay,
without actual production of it, is not sufficient to constitute a valid
tender."
Metropolitan
Credit Union v. Matthes, 46 Mass. App. Ct. 326, 333 (1999), quoting Mondello v.
Hanover Trust Co., 252 Mass. 563, 567 (1925).
The court in Metropolitan Credit Union held that a mortgagor's
telephoned offer to pay a mortgagee more than what was owed was insufficient to
cure the mortgagor's default.
Metropolitan Credit Union, supra at 332-333. The court relied on an earlier case in which
a letter from a buyer's counsel informing a seller of land that the buyer was
prepared to pay the balance due "did not constitute legal tender of payment." Id. at 333, citing Ward v. Doucette, 1 Mass.
App. Ct. 842 (1973).
Under these principles, the landlord here
did not make a valid tender of the security deposit within the statutory
thirty-day period. Moreover, although
there appears to be little case law on the issue in the Commonwealth, authority
elsewhere -- old, but never overruled -- indicates that "[t]o constitute a
good tender, the law requires payment at the proper place," and "[a]t
common law with respect to the payment of money . . . where the time,
but no place, of payment is specified, and no place of payment is fixed by law,
the rule is that the tenderer must seek the tenderee and make a tender to them
wherever they can be found" (footnote omitted).[19] 86 C.J.S. Tender § 16 (2017). One view is that "[p]ayment offered at a
place other than the creditor's place of business is not tender, unless the
creditor agrees otherwise" (footnotes omitted).[20] Id.
Another view is that "where no place of payment [is] mentioned in
the instrument, a tender should [be] made at the residence of the
creditor."[21] Gerard v. Bank of
N.Y. & Trust Co., 240 A.D. 531, 536 (N.Y.), rev'd on other grounds, 265
N.Y. 336 (1934). "The tenderer,
however, is not bound to go out of the state to find the tenderee"
(footnote omitted).[22] 86 C.J.S. Tender
§ 16.
We need not decide which of these rules
applies in the Commonwealth; we do not attempt a comprehensive statement of
when and how a landlord must tender the return of a security deposit, where
both the statute and the lease are silent on the issue. See note 14, supra. It is enough to say that the landlord here
did not timely tender payment to Alessi at his known address in the
Commonwealth, either in person or by mail, and did not timely tender payment to
Slater by mail at his known address in New York. The offer (assuming it was made) to give
Slater a check at the landlord's management office if he would arrange a time
to pick it up, particularly in circumstances where the landlord knew Slater was
out of State, was not a reasonable effort to return the deposit.[23]
3.
Force majeure. The landlord
claims that the judge erred in declining to recognize that its compliance with
the statute was prevented by force majeure, in the form of the COVID-19
pandemic. This argument is waived; the
landlord never raised such a defense in its answer, or in its summary judgment
opposition, or at the summary judgment hearing.
Moreover, the concept of force majeure is generally applied in contract
disputes,[24] and the landlord cites no authority for applying it to protect a
party from a statutory liability such as the one at issue here.[25] Finally, the landlord's summary judgment
opposition cited no evidence suggesting that the pandemic prevented it from
timely returning the deposit by mailing a check or checks to the tenants.
4.
Attorney's fees. Finally, the
landlord argues that the judge abused her discretion in awarding $17,780 in
attorney's fees where the amount of the security deposit, trebled, was only
$7,275.[26] The landlord relies
generally on the dissenting opinion in Taylor II, which argued that the
majority had applied the security deposit law too strictly. See Taylor II, 82 Mass. App. Ct. at
113-122 (Brown, J., dissenting). But the
landlord asserts no specific error in the Taylor II majority's
interpretation of the statute and no specific abuse of discretion in the
judge's application of Taylor II here in determining the landlord's
liability for fees.[27]
After determining that the tenant's
counsel's requested rate of $300 per hour was reasonable, the judge wrote:
"[The
tenants' counsel] claims that he devoted 59.40 hours of time to this matter,
which -- on its face -- seems extraordinarily high for a security deposit case.
Nonetheless, after examining the time records of the [tenants'] attorney and
noting the extraordinary amount of work which he was obliged to do on account
of the demands of the [landlord's] defense strategy, the [c]ourt finds that the
time spent was reasonable. The
[tenant's] counsel has proven that he is entitled to $17,780[] in legal fees to
date."
The landlord does
not point to, and we do not see, any abuse of discretion in this conclusion.
5.
Appellate attorney's fees. The
tenants, citing the attorney's fees provision of the security deposit statute,
G. L. c. 186, § 15B (7), have requested an award of their
appellate attorney's fees and costs. We
allow that request. See Mellor v.
Berman, 390 Mass. 275, 284 (1983). See
also Yorke Mgt. v. Castro, 406 Mass. 17, 19 (1989) (language in G. L.
c. 186 and G. L. c. 93A making "provisions for a
'reasonable attorney's fee' would ring hollow if it did not necessarily include
a fee for the appeal"). The tenants
are invited to file a verified and itemized application for such fees and costs
within fourteen days of the date of this decision, and the landlord will have
fourteen days thereafter in which to file any opposition to the amounts
requested. See Fabre v. Walton, 441
Mass. 9, 10-11 (2004).
Judgment
affirmed.
footnotes
[1] Nicholas
Alessi.
[2] Westland
Realty, LLC.
[3] The money was
paid by Slater's mother, and Alessi subsequently reimbursed Slater half of that
amount.
[4] The record
does not indicate where the office was physically located, but the lease shows
the landlord's mailing address as a post office box in Boston.
[5] Records from
Slater's cell phone service provider showed that he did not receive any
telephone calls in September of 2020 from any of the telephone numbers used by
Traynor. We need not decide whether (as
the tenants argue) those records sufficed to eliminate any genuine issue of
fact, because we conclude infra that any such dispute was not material.
[6] That same
day, Alessi, who previously had an informal agreement that Slater would pursue
return of the security deposit on behalf of both of them, signed and returned a
contract to be represented by Slater's attorney.
[7] The five
requests at issue asked Slater to admit that the demand letter sent by his
attorney on October 28, 2020, made certain statements, and omitted certain
other statements, regarding whether the attorney also represented Alessi. Slater had separately admitted that the
demand letter was sent, and that the landlord's copy of it was genuine, but he
objected to the five requests on the ground that the letter spoke for
itself. There is authority for the
proposition that "if the request for admission quotes a document[] and
asks the other party to admit that the document contains the material quoted,
it should be admitted if the quotation is accurate and denied if it is
not," and that a response saying that "the document speaks for
itself" is "not a legitimate objection" but instead is "a
waste of time." Miller v. Holzmann,
240 F.R.D. 1, 4 (D.D.C. 2006). We need
not resolve that issue here.
[8] The judge
also ordered summary judgment dismissing the landlord's counterclaim. The landlord does not challenge that aspect
of the judgment on appeal.
[9] The landlord
filed a notice of appeal on the same day that it received the order denying its
motion for reconsideration. The order
also included an order for the entry of judgment, but the judgment did not
enter until the next day. Although the notice
of appeal was technically premature, no party has been prejudiced, and we
exercise our discretion to reach the merits.
See Swampscott Educ. Ass'n v. Swampscott, 391 Mass. 864, 865-866 (1984);
Creatini v. McHugh, 99 Mass. App. Ct. 126, 128 (2021).
[10] Even had the
landlord made such a belated request, the judge would have been under no
obligation to allow it.
[11] On appeal,
the landlord does not challenge the denial of its discovery motion, and it
concedes that a demand letter is not a prerequisite to recovery here. See note 13, infra.
[12] Under
G. L. c. 186, § 15B (6) (e), a landlord who fails
timely to return the security deposit plus interest forfeits the right to
retain the deposit. A landlord's
noncompliance with that provision entitles a tenant to "damages in an
amount equal to three times the amount of such security deposit or balance
thereof to which the tenant is entitled plus interest at the rate of five per
cent from the date when such payment became due, together with court costs and
reasonable attorney's fees."
G. L. c. 186 § 15B (7).
[13] The landlord
asserted at the summary judgment hearing that there existed a genuine issue of
fact regarding whether Alessi had demanded the return of the deposit before it
was actually returned. At oral argument
before us, however, the landlord conceded -- properly, given the Taylor
decisions -- that if a security deposit has not been timely returned under
c. 186, § 15B (4) and (6) (e), then § 15B (7)
entitles a tenant to treble damages and attorney's fees even without making a
demand. In this respect,
§ 15B (6) (e) differs from § 15B (6) (a), as
interpreted in Castenholz v. Caira, 21 Mass. App. Ct. 758, 762-763 (1986). See Karaa v. Kuk Yim, 86 Mass. App. Ct. 714,
723 (2014); Taylor I, 75 Mass. App. Ct. at 414-416.
[14] We further
observed that "[t]he meaning of the word 'return' in this statute is an
important question with broad implications for landlord-tenant
law. . . . [W]e have
before us only a single pro se brief in this case, and the statutory question
does not appear to be a simple one in light of possible difficulties involved
in construction of the language of the statute, and of its structure and
purpose" (footnotes omitted).
Taylor II, 82 Mass. App. Ct. at 110.
[15] As we said
in Taylor II in discussing the possible ambiguity of the statutory word
"return," "when a check for repayment of borrowed money is
placed in the mail, one might say that the money had been
'returned.'" Taylor II, 82 Mass.
App. Ct. at 110 n.3. At the summary
judgment hearing, the landlord asserted that mailing the checks would have been
"acceptable" under the statute.
[16] At the
summary judgment hearing, the landlord's counsel represented that Traynor's
father was terminally ill in September 2020 and that she had been with him at a
hospital or while he was in hospice care.
After the judge ordered summary judgment, the landlord, in opposing the
assessment of attorney's fees, stated that Traynor's father passed away on
November 29, 2020. Although these
circumstances were unfortunate for Traynor's family, the landlord did not
assert that they prevented Traynor from communicating with the facilities
manager, drafting checks, responding to Slater's text messages, and otherwise
conducting business, as the record shows she did.
[17] We are
unpersuaded by the landlord's suggestion that there was a dispute of material
fact over whether Slater was entitled to receive the full amount of the
deposit, including the half to which Alessi was ultimately entitled. There is no dispute that the landlord failed
to timely return any part of the deposit to either of them, and they both filed
this suit.
[18] Other than
showing that the management office was closed due to the COVID-19 pandemic in
September -- requiring that any meeting there be arranged in advance -- the
record does not indicate precisely how the pandemic would have affected an
attempt to meet there. There is
certainly no evidence or reason to believe that the pandemic made such a
meeting more feasible for either tenant.
[19] See Berley
& Kyzer v. Columbia, Newberry & Laurens
R.R. Co., 82 S.C.
232, 234 (1909) (collecting other authorities).
See also Weyand v. Randall, 131 A.D. 167, 169 (N.Y. 1909) ("The
general rule that where no place of payment is specified the debtor must seek
the creditor, is unquestioned").
[20] See Anderson
v. Citizens Bank, 294 S.C. 387, 396 (Ct. App. 1987), overruled on other
grounds, Ward v. Dick Dyer & Assocs., Inc., 304 S.C. 152 (1991).
[21] As of 1919,
the Revised Code of Practice of Louisiana provided that, if an agreement did
not specify the place of payment of money due, tender must be made to the
creditor, at the creditor's residence, or at the place of execution of the
agreement. See Ruffo v. Marcotte, 3
Pelt. 415, 419 (La. Ct. App. 1919).
[22] See Kingston
v. Anderson, 3 Wash. 2d 21, 23 (1940).
[23] As the
tenants point out, a contrary rule would be unfair to tenants who, after the
termination of the tenancy, move out of State (as Slater did) or out of the
country. Relatedly, an offer to refund
the deposit at the formerly leased premises is not necessarily reasonable,
because the tenant would have moved out of those premises up to thirty days
earlier.
[24] See, e.g.,
NextEra Energy Resources, LLC v. Department of Pub. Utils., 485 Mass. 595, 599,
601, 606 (2020); Baetjer v. New England Alcohol Co., 319 Mass. 592, 595-598
(1946); Nantasket Beachfront Condominiums, LLC v. Hull Redev. Auth., 87 Mass.
App. Ct. 455, 460 (2015).
[25] Similarly,
the doctrines of impossibility and frustration of purpose, also mentioned in
the landlord's appellate brief, are generally limited to the contractual
context. See, e.g., Chase Precast Corp.
v. John J. Paonessa Co., 409 Mass. 371, 373-374 (1991). Those doctrines, which are explained in Chase
Precast Corp., have no application here.
[26] We will
review an award of attorney's fees under the statute for abuse of
discretion. See Karaa, 86 Mass. App. Ct.
at 724. Cf. McGrath v. Mishara, 386
Mass. 74, 87 (1982) (same under G. L. c. 93A); Darmetko v. Boston
Hous. Auth., 378 Mass. 758, 764–765 (1979) (same under G. L. c. 186,
§ 14); Smith v. Bell Atl., 63 Mass. App. Ct. 702, 725 (2005) (same under
G. L. c. 151B).
[27] The majority
and the dissent in Taylor II mentioned attorney's fees only in
passing. See Taylor II, 82 Mass.
App. Ct. at 107, 111; id. at 115 n.4, 116, 121 (Brown, J., dissenting).