254 Newbury, LLC v. Wabora Newton LLC, et al. (Lawyers Weekly No. 12-026-17)

CA No. 16-1855-BLS1
This case arises out of a dispute concerning a commercial lease for a restaurant. The plaintiff, 254 Newbury, LLC, is the landlord (Landlord) and the defendant, Wabora Newton LLC (Waboro) is the tenant. The Landlord filed this action on June 13, 2016 and an amended complaint on December 16, 2017 (the Complaint). The Complaint is pled in four counts: Count I seeks injunctive relief, but does not allege a separate cause of action; Count Two alleges a Breach of Contract; Count Three asserts a claim for nuisance; and Count IV requests an order of eviction, but does not assert a separate cause of action. Wabora has filed a two count counterclaim against the Landlord: Count I alleges a Breach of Contract against the Landlord and Count II asserts a claim under M.G.L. c. 93A, § 11.
The case was tried to the court without a jury on February 15 and 16, 2017. Six witnesses testified and 92 exhibits were admitted in evidence.
1 Jae Choi was dismissed as a defendant at the plaintiff’s request just prior to trial and did not participate.
In consideration of the testimony of the witnesses and the exhibits, and the reasonable inference drawn from this evidence, the court finds the following facts.
The Landlord is a limited liability company which is a part of the Copley Group, a real estate investment and management company owned by Norman Levenson and members of his family. The Copley Group owns and/or manages over 1500 residential units and 300,000 square feet of commercial space in the Boston area, including other buildings on the same block as the property which is the subject of this case. Levenson formed the Landlord to acquire the property located at 254 Newbury Street in Boston (254 Newbury) in 2012. The property consists of a basement (or in Back Bay speak “Garden”) unit, which is 1300 interior square feet with a patio in front, and four above ground floors, the first of which has three large windows in a bay area typical of the town houses on Newbury Street (the Commercial Space). There are stairs to the right of the patio which lead to the front entry way to 254 Newbury. The front door opens into a foyer with direct access to the Commercial Space, stairs to the floors above, and a door that leads to stairs down to a rear exit at the restaurant level. 254 Newbury lies in the Boston geographic district subject to oversight by the Back Bay Architectural Commission (BBAC).
When the Landlord acquired 254 Newbury, the four above ground floors were being used as a bed and breakfast (the B&B). The record does not reflect what was in the basement unit. The B&B vacated in August, 2014. Sometime thereafter, the Landlord created six residential apartment units in the upper three floors and rented them. The commercial space has been vacant since the B&B moved out.
Effective October 1, 2012, the Landlord leased the basement to J’s Tomodachi, Inc. (J’s) pursuant to a written lease (the Lease). The Lease was guaranteed by J’s principal, Jae Choi. It
was for a term of ten years, with an option for another five. The Lease provided that the only permitted use for the leased space was “a sushi restaurant, and for no other purposes.” The restaurant had a kitchen in the back and seating in the front and on the patio, beside the steps down to the restaurant entrance. In the rear, left corner of the kitchen was a fryolator with a ventless hood above it. While J’s was operating a sushi restaurant in the basement unit no noticeable restaurant smell existed in the first floor foyer or the Commercial Space, although there was some odor in the stairs leading to the rear exit.
Minsoo Kim is one of the principals of Wabora; he owns 40% of the firm. He has been in the Asian Fusion restaurant business since 2007; prior to that he was a baseball player and then a scout for the Arizona Diamondbacks. In 2014, Kim was looking for a location to open a sushi restaurant; a mutual friend put him in contact with Choi. Effective April, 2015, Wabora purchased the restaurant located in the basement of 254 Newbury from J’s, including its equipment and furniture, by means of an asset purchase agreement. Part of that transaction required the Landlord’s consent to J’s assigning its interests in the Lease to Wabora. That assignment and consent was executed by the Landlord on April 27, 2015.2
Of relevance to this case, the Lease included the following provisions. The initial rent was $ 9,533.34, increasing at the rate of 3% per annum in years 2 through 10. It was a standard triple net commercial lease in which the tenant also paid its share of taxes and maintenance. A fryolator could be used, but only if the necessary “government approvals” were obtained and the grease traps cleaned regularly. (There is no evidence in this case of a lack of approvals or improper maintenance.) The lessee was responsible for furnishing outdoor tables and umbrellas.
2 Wabora also acquired the liquor license for the restaurant. The Copley Group (or a person or entity associated with it) lent Wabora the funds to purchase the license; Wabora paying interest on the sum lent. However, if Wabora vacates the 254 Newbury, the Landlord (or an affiliate) retains the liquor license.
“All Outdoor Equipment must be approved in advance by Lessor in writing.” All improvements or alteration to the premises also had to be pre-approved by the Landlord. If the Landlord pays any expenses in connection with any lessee default, the lessee is liable for such expenses, plus interest at 18%.
The Lease provisions that the Landlord focuses upon in this case are found in Section 7 and Section 21. Section 7 is entitled “Compliance with Laws” and states, as relevant to this case:
Lessee acknowledges that no trade or occupation shall be conducted in the Leased Premises or use made thereof which shall be unlawful, improper, noisy or offensive, or be contrary to any law or any municipal by law or ordinance in force in the municipality in which the Building is located.
Section 21 states, as relevant to this case:
Lessee further covenants and agrees during the Term and such further time as Lessee holds any part of the leased premises:
. . .
d. that Lessee shall not cause any disturbance to any tenant or other occupant of the Property, and shall not otherwise adversely impact any tenant or occupant at the Property.
Kim only inspected J’s kitchen a few times before Wabora purchased the restaurant. He did notice, on at least one occasion, that when J’s was in operation, a steel tray had been placed over the fryolator and J’s was using a small, home-style fryolator to prepare the fried food it was serving. There was no evidence offered concerning whether J’s used the fryolator that it had installed under the ventless hood at all, and, if so, to what extent.
After the lease was signed, Wabora made substantial expenditures to upgrade the areas of the restaurant which customers would enter, but not the kitchen. While Kim gave consideration to kitchen improvements, including an external ventilation system which would extend over the cooking area (the ventless hood was only over the fryolator) and allow him to expand the menu beyond the items that J’s served, he concluded that this would be too costly. A principal reason
for this was that kitchen changes would require approval from a number of Boston health and building departments. Also, the external vent would require the installation of a duct running on the outside of the building to its roof, and this would require BBAC approval. Since Wabora’s rent obligation began upon the assignment of the lease, Wabora could not afford the time necessary to make alterations in the kitchen and left it as it had been operated by J’s.
While Wabora was upgrading the interior of the restaurant, the Landlord had some masonry done on the retaining wall outside the restaurant, next to the stairs leading down to the entrance. The mason pointed out to Kim that the brick work in an area immediately in front of the concrete apron that extends from the top of the stairs was in poor condition. He recommended replacing it with concrete. Kim spoke to the Landlord’s property manager responsible for this building, Tami Hunter, about the repairs and asked if the Landlord would pay for it. She reported that it would not, and Kim had the mason do the concrete work at Wabora’s expense.
Wabora opened for business on June 24, 2015. It placed a large, tan umbrella on the patio to shade part of the dining area from the sun. The umbrella was among the equipment left in hte restaurant by J’s. No evidence was offered concerning whether J’s had also used the umbrella on the patio, but presumably it had.
In July or August, 2015, the Copley Group retained District Real Estate Advisors (District) as the exclusive broker to rent the first floor Commercial Space. Another broker had the engagement before District, but no evidence was offered concerning its efforts to lease the space during the previous year that it had been vacant. Two District brokers who attempted to lease the space testified: Timothy Bulman and Gregory Feroli. Each testified concerning odors emanating from Wabora’s. Bulman testified that there was a strong “cook fry” smell in the foyer
and in the Commercial Space itself—the kind that might stick to your clothes. The smell grew stronger in the stairwell in back of the foyer that led to the rear exit. Feroli testified that the smell was that of fried food, like “an Asian restaurant.” The two brokers testified to four instances in which prospective tenants did or said something suggesting that the smell dissuaded them from renting the Commercial Space. In November, 2015, Feroli showed the space to representative of a company called M-Jemi [phoenetic]. On entering, the representative scrunched her nose and said that they were selling $ 600 shoes; this won’t work for us. In January, 2016, Bulman showed the space to Crafted Boutique, a retail business selling antique appearing apparel. There were discussions about a lease, but Crafted Boutique expressed reservations about the smell. In the Spring of 2016, Feroli showed the space to space to two other high end clothing retailers Shop HCV and Roamers & Seekers. Each of these prospective tenants also did or said something suggesting that they were put off by the smell. No evidence was offered that the smell was the only reason the latter three businesses did not sign a lease for the Commercial Space. In July, 2016, Bulman sent an email to the Landlord explaining that 254 Newbury’s physical location on the block caused some problems and that the Landlord was asking $ 95 a square foot, plus another $ 20 “nets” and “real interest is coming in at $ 6500 to $ 7500, ALL IN.” The Commercial Space was leased from November 2015, through the first week in January 2016, to a so-called pop-up tenant that wanted it on short notice for the holiday season for $ 7500 a month.
It is difficult to find the extent of an odor based on oral testimony of sensory perception, but the court finds that there was a very noticeable Asian fried cooking smell in the foyer and the Commercial space and this would have certainly detracted from the desirability of the space for
use as a store selling high end apparel. The court will take judicial notice that such a smell may be retained on clothing that is exposed to it for a lengthy time.
The Landlord first notified Wabora of its concerns over the odor in an email dated December 3, 2015 from Hunt to Kim. Hunt writes that she “just heard from the broker that when they are showing the space above your restaurant there is a very strong smell coming from the restaurant. . . . This is reported recently so I need you to determine what is different so this can be corrected asap.”3 Hunt recommended a HVAC engineer to Kim. Kim reached out to him, but the engineer did not respond.
In January, Hunt unilaterally brought in a firm called PFG Advisors, that specialized in air filtration systems for restaurants, to provide advice. At its recommendation, the Landlord purchased two ion generators and installed one in the HVAC system for the restaurant and one in the HVAC system for the Commercial Space. The Landlord charged Wabora for the cost of these systems. Wabora retained an attorney who wrote to Hunt on behalf of Wabora that he did not believe that it was Wabora’s obligation to remediate a smell that resulted from the operation of a Sushi restaurant, which was the sole permitted use under the Lease, but Wabora would agree to pay $ 4,000 toward the cost of the ion generators. The Landlord rejected this proposal. It charged Waboro $ 8178.75 for the generators. Whether the ion generators would have eliminated the odors is unknown. After they had been in operation for 3 or 4 weeks, and were still being adjusted, they had to be turned off because they severely irritated the eyes of the restaurant employees, as well as causing a different unpleasant odor.
3 Hunt testified at trial that the smell was consistent beginning in July when the restaurant first opened. The court does not find that testimony credible. Either the smell was not there, or it did not seem significant, until a potential tenant for the Commercial Space first complained about it to the broker, who reported the complaint to Hunt.
In April, 2016, a meeting was convened in the Commercial Space. It was attended by Kim, Chris Woo (another principal of Wabora), Hunt, and attorneys for Wabora and the Landlord. All parties acknowledged an odor in the Commercial Space, although not surprisingly they differed on its level and whether it was pungent or simply the smell of an Asian restaurant. At or shortly after the meeting, Wabora agreed to retain two environmental consulting firms to study the space and propose responses: Gordon Air Quality Consultants, Inc. and Boston Environmental Engineering Associates, Inc. Each inspected the premises and prepared reports in April. They generally reported “low level” odors in the Commercial Space and made a series of recommendations including: repair work to fill holes and seal ceiling tiles in the restaurant, repair a large hole in the bathroom of the Commercial Space and other holes in the walls of that space and a mechanical closet, and to balance the separate HVAC systems in each unit. The engineers reported that there was a positive air flow balance in the restaurant and a negative balance in the Commercial Space, and this was likely causing air to pass from the restaurant to the space above. One engineer also recommended a door at the base of the back stairs to act as a barrier, as there is a natural draft up the stairs. The engineers also indicated that while ventless hoods are relatively effective, they do leave some odors in the air, and the only way to be certain of eliminating the odors would be an exterior vent that would run outside the building to the roof. Wabora’s lawyer sent the reports to the Landlord’s lawyer and represented that Wabora would undertake to perform the recommended work within the restaurant.
In April, the Landlord also began charging its attorney’s fees to Wabora.
In May, 2016, Wabora performed all of the work that it committed to do within the restaurant, other than balancing the air flow. This task could not be done until the Landlord had balanced the air flow in the Commercial Space. The air flow in the Commercial Space was not
adjusted until some weeks or months later, the evidence was inadequate to determine just when the Landlord balanced it. Wabora, thereafter, did the related HVAC work in the restaurant. Wabora spent approximately $ 10,000 on the consultant’s reports and follow-up work.
On May 24, 2016, the Landlord’s attorney sent Wabora’s attorney an email demanding that the umbrella be removed from the patio, asserting that the Landlord had not approved it. This was the same umbrella that was among the equipment that Wabora purchased from J’s, had been up all of the previous summer after Wabora opened for business in June 2015, and for several weeks in 2016. This demand was precipitated by a comment made by a prospective tenant (reported to Hunt by the broker) that the umbrella obscured some of the view of the Commercial Space windows from the street. The demand was for immediate removal of the umbrella, although there was no tenant in the space and even if a prospective tenant signed a lease, it would be some time before the space could be occupied.
On June 13, 2016, the Landlord file suit against Wabora and sought preliminary injunctive relief, including among other things that Wabora be ordered to seek approval from the BBAC for an external vent and the umbrella be removed from the patio. Wabora removed the umbrella before the hearing, and the court denied the preliminary injunction in an order issued on July 14, 2016. In September, 2016, Wabora did have an architect prepare drawings for an external vent and met with a lawyer recommended by the Landlord as someone who could assist Wabora in trying to obtain a building permit for it, but after meeting with the lawyer, Wabora chose not to go forward with the plans.
On June 16, 2016, Wabora’s lawyer sent the Landlord’s lawyer a letter with photos of three different types of umbrellas that he represented were “consistent in both the size and the styles with other patios located on Newbury Street,” and asked that the Landlord approve one.
The Landlord did not respond to this request. After the large umbrella was removed, Wabora had no umbrella on its patio for the balance of the summer season.
On August 9, 2016, the Landlord’s lawyer sent Wabora’s lawyer a notice of default based upon Wabora having painted the cement area of the patio “a vibrant red color” without the Landlord’s prior approval. Wabora had painted the cement in response to a suggestion by a Boston health inspector that the unpainted cement was dusty and could result in a code violation. Kim had chosen that color because he thought that it matched the brick. Wabora responded to the notice of default by offering to repaint the cement any color that the Landlord chose. The Landlord did not respond to the request to select a color, and Wabora repainted the area a whitish color that was intended to replicate the prior color of the cement.
On August 19, 2016, the Landlord’s lawyer sent another notice of default based upon reports by Boston Inspectional Services concerning code violations in the restaurant dated July 29, 2016 (which resulted in a temporary suspension of license) and December 10, 2015 (which did not). The July report noted such violations as a food handler using bare hands, too low a water temperature in the dish washer, no annual report re chemical composition of the sushi rice, and no procedure for notification of employees who are diagnosed with reportable illnesses, among other things. The temporary suspension was lifted well before the notice of default was sent. Neither report said anything regarding odors.
On August 30, 2016, the Landlord sent Wabora a notice to quit for failure to timely pay the August rent. The notice also claimed default based on painting the cement red and the inspectional services reports. It claimed to accelerate all of the base rent for the ten year lease, such that it was now immediately due. The August rent was paid before the period to cure passed.
On September 12, 2016, the Landlord sent another notice to quit. It again asserted a default based on painting the cement red and that all remaining rent for the ten year lease was now due. On October 16, 2016, the Landlord filed a summary process action seeking possession of the premises in the Boston Municipal Court. That action was transferred to the Superior Court and consolidated with this case.
No evidence was offered at trial that the fryolator was not properly maintained or that the grease was not changed and removed at appropriate intervals. No evidence was offered that Wabora offered any menu items not typically offered by “Sushi Restaurants.” Although there are six residential units on the second, third and fourth floors of 254 Newbury, and these residents enter the building through the foyer, no evidence was offered that any tenant complained about the odor.
Breach of Contract
The Landlord asserts that Wabora breached its contract with it, i.e., the Lease, as a consequence of the cooking odors coming from the fryolator, painting the cement, using an umbrella on the patio, and, perhaps, receiving notice of code violations from Boston Inspectional Services.4 Clearly, the Landlord’s primary basis for claiming a breach of the Lease is the Asian fried cooking odor that was emanating from the restaurant and could be smelled in the Commercial Space.
First, the court notes that the restaurant was leased to Wabora for use as “a sushi restaurant, and for no other purposes.” While Kim testified that some Korean style food was
4 It was not clear whether the Landlord was still pressing this issue as a grounds for Lease default at trial.
served, he also testified that it was the practice of all Sushi restaurants to serve this type of food and J’s did as well.5 The Landlord offered no evidence that Wabora served any items not generally served by all Sushi restaurants or engaged in any cooking or other activities not typically engaged in by Sushi restaurants. In particular, all Sushi restaurants serve dishes that include fried food that must be prepared in a fryolator. The court finds that the real estate brokers testified that it was the smell of Asian fried food that was noticeable in the Commercial Space. Wabora prepared this fried food in a fryolator that was in place when the restaurant was purchase from J’s and the Landlord assented to the assignment of J’s lease to Wabora. Similarly, the ventless hood was installed in J’s and therefore effectively approved by the Landlord as the means of addressing the cooking smells that would result from the use of the fryolator.
Additionally, the Lease expressly permits the use of a fryolator, as long as all necessary permits are obtained and it is regularly maintained. The Landlord offered no evidence that Wabora lacked any necessary permits, or that the fryolator was misused or improperly maintained.
The Landlord claims, in particular, that the use of the fryolator and the resulting odor breached Sections 7 and 21 of the Lease. An examination of those sections demonstrate that Wabora did not breach either of them.
Section 7 is entitled “Compliance with Laws” and states, as relevant to this case:
“Lessee acknowledges that no trade or occupation shall be conducted in the Leased Premises or use made thereof which shall be unlawful, improper, noisy or offensive, or be contrary to any law or any municipal by law or ordinance in force in the municipality in which the Building is located.” Clearly, Wabora’s use of the premises as a sushi restaurant is not only not unlawful, it
5 Moreover, the brokers’testimony was that their concern was the fried cooking smell, not the smell of any Korean style food served by Wabora.
is the only use that Wabora is permitted to make of the leased space. The fact that an Asian cooking smell is produced in connection with this use does make the use “offensive.” The court finds that the smell is to be expected. The premises were leased to Wabora with a commercial fryolator accompanied by a ventless hood, and the building was old and lacked a central HVAC system. It even lacked a door in the common area at the base of the back stairs that might have prevented the back stairs from acting as a flew causing odors to travel up to the Commercial Space. The fact that frying smells might have been less noticeable when J’s was in operation, perhaps because J’s apparently used only a small, home-style unit, does not make Wabora’s use of the existing equipment installed in the restaurant when it assumed the Lease an “offensive” use. Clearly, Wabora was entitled to assume that use of a fryolator with a ventless hood had been approved by the Landlord, and there was no evidence that the smell was the result of Wabora offering any menu items not typically found in Sushi restaurant or that it was improperly using the fryolator or the vent.
Turning to Section 21, it states, as relevant to this case: “Lessee further covenants and agrees during the Term and such further time as Lessee holds any part of the leased premises: . . . d. that Lessee shall not cause any disturbance to any tenant or other occupant of the Property, and shall not otherwise adversely impact any tenant or occupant at the Property.” The simple answer to the Landlord’s contention that Wabora violated this Lease term is that no other “tenant” or “occupant” complained about the odor, and there is no evidence that it disturbed any tenant or occupant. The brokers who were attempting to Lease the “Commercial Space” reported that certain prospective tenants were put off by the odor, but there was no evidence that any of the six residential tenants complained.
The Landlord’s contention that (i) putting up the umbrella, (ii) painting the cement, or (iii) Wabora’s receiving a notice of a code violation, quickly remedied, from Boston Inspectional Services breached the Lease can be quickly addressed. The court finds that the umbrella had been up for several months (including the summer of 2015) before the Landlord asserted that it was a Lease violation because it had not been pre-approved. The court finds that the open and obvious use of an umbrella for months precludes, on estoppel grounds, an assertion that its use was a Lease violation.6 In any event, it was removed within weeks of the Landlord’s complaint. While Wabora should have requested approval from the Landlord before painting the cement, after notice that the Landlord objected to the color, Wabora offered to paint it any color that the Landlord chose.7 When the Landlord refused to select a color, Wabora repainted it a color designed to match the previous color of the cement. The violation was therefore promptly cured. The court finds that code violations of the kind noted in the inspection services reports entered in evidence, again promptly cured, do not constitute a breach of the Lease.
In the end, the Landlord failed to carry its burden of proving that Wabora used the premises for anything other than its sole permitted use: operating a sushi restaurant. The Landlord failed to prove that Wabora did not properly operate the fryolator or ventless hood, which were in the kitchen when the Landlord assigned the Lease to it. The fact that the restaurant produced an odor in the Commercial Space that made it more difficult to rent does not constitute a breach of the Lease.
6 While there is insufficient evidence for the court to find that J’s used the same umbrella, the court does credit Kim’s testimony that it was among the items left at the Restaurant by J’s.
7 During trial, the Landlord seemed to suggest that it was violation of the Lease to cement over the small area in front of the stairs where the bricks were in very poor condition. The default notices, however, referenced only Wabora’s painting of that area, not replacing the broken bricks with cement. The court also finds that property manager Hunt was informed of this proposed masonry work before the restaurant opened, when Kim asked her if the Landlord would pay for it and she responded that it would not.
There was evidence offered at trial that either an external vent, which would require BBAC approval, or a more sophisticated and expensive ventless system, would eliminate the migration of the odor into the Commercial Space. If the Landlord believes that these improvements would increase the value of the Commercial Space, it can certainly install them, but that is not Wabora’s contractual obligation under the Lease.8
In support of its position, the Landlord has cited Novogroder Cos. v. Massaro, 997 N.E.2d 1173 (Ind. App. 2013). In that case, the appellate court actually affirmed the trial court’s denial of a landlord’s motion for a preliminary injunction enjoining its commercial tenant from cooking foods in the leased premises. It held that the trial court had properly found that the Landlord was not likely to succeed on the merits of its claim of nuisance (which is statutory in Indiana). In connection with that holding, it commented that the testimony at the preliminary injunction hearing “revealed” that “the actual dispute, something more properly sounding in contract than in nuisance [was]: who should bear the primary responsibility for installing ventilation.” Id. at 1178. The Indiana appellate court’s comments are equally applicable to this case.
The Landlord has not cited any Massachusetts case in which a Landlord brought a claim of nuisance against a tenant, probably because the question of whether the tenant was improperly using leased space was addressed under the lease and landlord/tenant law. Nonetheless, the court will assume that the law of nuisance can be applied to this dispute.
8 The court commented at the end of the trial that the litigation expense probably exceeded the cost of an external hood or high end internal ventilation system.
In Rattigan v. Wile, 445 Mass. 850 (2006), the Supreme Judicial Court considered how the law of nuisance applies in an urban setting.
Our cases impose a heavy burden on the plaintiffs in such an action. The law of nuisance “does not concern itself with trifles, or seek to remedy all the petty annoyances of everyday life in a civilized community.” W.L. Prosser & W.P. Keeton, Torts § 88, at 626 (5th ed.1984). See, e.g., Wade v. Miller, 188 Mass. 6, 7, 73 N.E. 849 (1905) (“Although the odor arising from the hen houses and yard, which at times was accompanied by the characteristic cry made by their occupants, may have been unpleasant,” there was no actionable nuisance).
Life in organized society and especially in populous communities involves an unavoidable clash of individual interests. Practically all human activities unless carried on in a wilderness interfere to some extent with others…. Liability for damages is imposed [only] in those cases in which the harm or risk to one is greater than he ought to be required to bear under the circumstances, at least without compensation.” Restatement (Second) of Torts § 822 comment g, at 112 (1979). For this action to succeed, the plaintiffs must have shown that the defendant caused “a substantial and unreasonable interference with the use and enjoyment of the property” of the plaintiff. Doe v. New Bedford Hous. Auth., 417 Mass. 273, 288, 630 N.E.2d 248 (1994), quoting Asiala v. Fitchburg, 24 Mass.App.Ct. 13, 17, 505 N.E.2d 575 (1987). See Hennessy v. Boston, 265 Mass. 559, 561, 164 N.E. 470 (1929) (conduct actionable in nuisance if it would “deprive the plaintiff of the exclusive right to enjoy the use of [the] premises free from material disturbance and annoyance”). The injury or annoyance must have substantially interfered “with the ordinary comfort … of human existence,” or have been substantially detrimental to the “reasonable use[] or value of the property.” Metropoulos v. MacPherson, 241 Mass. 491, 502, 135 N.E. 693 (1922) (citations omitted).
The general rule is that a trier of fact may find an intentional invasion of another’s interest in the use and enjoyment of land to be unreasonable if the “gravity of the harm” caused thereby “outweighs the utility” of the actor’s conduct.14 Restatement (Second) of Torts, supra at § 826(a). See 6A American Law of Property § 28.26 (A.J. Casner ed.1952). Where an actor’s “sole purpose” “is to annoy and harm his neighbor,” the law recognizes no utility. Restatement (Second) of Torts, supra at § 829(a) & comment c. See 6A American Law of Property, supra at § 28.28. Such an action is unreasonable. Every landowner “is bound to use his own property in such a manner as not to injure the property of another, or the reasonable and proper enjoyment of it.” Wesson v. Washburn Iron Co., 95 Mass. 95, 104 (1866).
A trier of fact may also find a landowner’s conduct to be unreasonable if the harm to a neighbor is substantial and “it would be practicable for the actor to avoid the harm in whole or part without undue hardship.” Restatement (Second) of Torts, supra at § 830.
“The question is not whether the activity itself is an improper, unsuitable or illegal thing to do in the place where it is being carried on, but whether the actor is carrying it on in a careful manner or at a proper time. The problem is whether the actor could effectively and profitably achieve his main objective in such a way that the harm to others would be substantially reduced or eliminated.” Id. at § 830 comment c. “The one whose conduct causes the invasion may be able to reduce or eliminate the harm without undue hardship, and if so, he is the one to do the avoiding.” Id. at § 827 comment i.
In this case, the court finds that Wabora cannot achieve its sole objective, operating a sushi restaurant, which is also the only permitted use of the leased space, without a fryolator. The odors that naturally seem to infiltrate the Commercial Space in this old building are unavoidable, at least when the ventilation system used is that which was in place, and therefore approved by the Landlord, when Wabora assumed the Lease. In consequence, this is not a case in which the “harm . . . to [the Landlord] is greater than [it] ought to be required to bear under the circumstances.” Id. The law of nuisance ought not be employed to shift to Wabora the cost of improving the value 254 Newbury, all of which is, of course, owned by the Landlord, when there is no evidence that Wabora is not appropriately using the leased space for its intended purpose.
Breach of Contract
The Landlord appears to have charged Wabora the cost of installing the ion generators and the attorney’s fees that it has incurred since April, 2016 in dealing with the issues which are the subject of this litigation. The charges were apparently assessed under Section 23 of the Lease which provides that “[i]f the Lessor makes any expenditures or incurs and obligations for the payment of money in connection with any default of Lessee under the terms of this Lease, including, but not limited to, reasonable attorney’s fees (except for unsuccessful suits against the Lessee) . . . such sums paid . . .shall be paid to the Lessor by the Lessee as Additional Rent [with
interest at 18%].” As the court has found no default on the part of Wabora, and the Landlord was unsuccessful in this litigation, the Landlord breached the lease when it charged Wabora for expenses incurred in attempting to remediate the odor, including attorneys’ fees. Those charges must be reversed. If Wabora has paid any of them, it is entitled to equivalent credits for future rent.
Violation of Chapter 93A
The court does not find that the Landlord’s assertion that cooking odors emanating from Wabora caused a default under the lease constitutes an unfair act or practice under G.L. c. 93A. While the court has found that the Landlord was wrong in its application of the Lease to the facts, the court does not find that its interpretation of the law amounted to a “disregard of known contractual arrangements” so as to secure benefits to which the Landlord knew it was not entitled. See Atkinson v. Rosenthal, 33 Mass. App. Ct. 219, 225-226 (1992). The court finds that the Landlord had a good faith, albeit mistaken, belief that it was Wabora’s responsibility to ameliorate the smell, even though he was using the kitchen in its intended manner to operate a sushi restaurant.
The Landlord’s attempts to declare defaults based on a patio umbrella that had been used since the summer of 2015 (if not earlier), painting a cement landing and steps at the suggestion of a Boston inspector, and code violations that mostly dealt with food storage and preparation issues and were repaired before a notice of default was sent, is more problematic. Indeed, with respect to the umbrella, Wabora was prepared to replace it at its cost, but the Landlord would not even respond to its letter enclosing photos of proposed new umbrellas, with the result that Wabora had no umbrella on its dining patio during the summer of 2016. The court has no
difficulty finding that while the Landlord may have had sound reasons for wanting a smaller umbrella or a different color paint, it used these events as pretext to force Wabora to quit the premises or pay for a new ventilation system. Indeed, its notices to quit purported to accelerate the rent on the remaining seven years of the lease, an amount approaching $ 1 million. Nonetheless, Waboro continued its operations during the course of this dispute, while the litigation proceeded to a prompt trial. Under these circumstances, the court find’s the Landlord’s conduct to be aggressive and annoying, but not to rise to the level of a Chapter 93A violation. See, Id.
For the foregoing reasons, the court orders that Final Judgment enter as follows:
1. All counts of the Complaint are dismissed; judgment for the defendant Wabora.
2. Judgment for Wabora on Count I of the Counterclaim. The Landlord shall reverse all charges for attorneys fees and related to the ion generators assessed to Wabora. If Wabora has paid any of these charges, it shall receive credits for such amounts against future rent.
3. Judgment for the Landlord, as defendant-in-counterclaim, on Count II of the Counterclaim, which is dismissed.
4. Costs to defendant Wabora.
Mitchell H. Kaplan
Justice of the Superior Court
Dated: March 2, 2017

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