KJC Obtains Ruling that Failure to Obtain Certificate of Occupancy Does Not Affect Validity of Lease

In a Northeast Housing Court case, Attorney Scott D. Carman, a Partner at KJC, recently persuaded the Court to, not only deny a motion for partial summary judgment on all counts, but also hold as a matter of law that a residential landlord’s failure to obtain a certificate of occupancy does not affect the legality of an underlying lease agreement, does not void any resulting tenancy, and is an issue for a municipality – and not a tenant – to prosecute pursuant to M.G.L. c. 40 § 21D. 

KJC’s client, a residential landlord, filed a summary process eviction action against two tenants for nonpayment of rent.  The tenants had not paid any rent in ten (10) months and owed KJC’s client over $10,000.00. 

The tenants asserted counterclaims and affirmative defenses to the landlord’s complaint.  The tenants later moved for entry of summary judgment on their counterclaims and affirmative defenses, including their affirmative defense that the undisputed lack of a certificate of occupancy for the property rendered the lease “void” for illegality and precluded the landlord from enforcing its claim against them for nonpayment of rent and, in turn, excused the tenants from any obligation to pay rent.  The tenants further posited that such lack of a certificate of occupancy entitled them to a refund of all rent that they had previously paid.  Generally, a contract for an illegal purpose (e.g., sale of illegal narcotics) is void and unenforceable as a matter of public policy. 

Attorney Carman appeared on behalf of the landlord and urged the Court to deny the tenants’ motion for partial summary judgment on all counts.  In addressing the tenants’ claim that the lease was “void” for illegality, Attorney Carman argued that the property was at all times relevant maintained in a habitable condition, not in violation of the State Sanitary Code and was eligible for a certificate of occupancy, but the landlord had failed to secure same merely due to administrative oversight.  Attorney Carman argued that “the mere failure to obtain a piece of paper from a municipality does not void a residential lease and provide a tenant with a windfall by allowing him/her to enjoy the benefit of living somewhere without the attendant obligation to compensate the landlord.”  Unlike a contract to commit an illegal act, the lease between the tenants and KJC’s client was for a perfectly legal purpose—to rent a residential apartment.  Moreover, the tenants failed to cite any legal authority to support their argument that the lease was “void” for illegality due to an alleged violation of a municipal ordinance. 

The Court agreed with Attorney Carman and denied the tenants’ motion for partial summary judgment on all counts.  Notably, with respect to the tenants’ claim that the lease was “void” for illegality, the Court went a step further by holding as a matter of law that the landlord’s failure to obtain a certificate of occupancy did not affect the legality of the underlying lease agreement, did not void the resulting tenancy, and was a matter for the municipality – and not the tenants – to prosecute pursuant to M.G.L. c. 40 § 21D.  As such, KJC’s claim for nonpayment of rent was preserved for trial.

KJC is a prominent Boston-based law firm that can help you with all of your real estate related legal matters.  Please do not hesitate to contact us for a consultation.