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18-P-218 Appeals Court

ROSA LAYES1 & another2 vs. RHP PROPERTIES, INC., & another.3

No. 18-P-218.

Middlesex. November 14, 2018. - August 28, 2019.

Present: Hanlon, Massing, & Ditkoff, JJ.

Mobile Home. Manufactured Housing Community. Oil and Gas.

Regulation. Consumer Protection Act, Unfair or deceptive 

act, Class action. Practice, Civil, Summary judgment, 

Class action, Consumer protection case.

Civil action commenced in the Superior Court Department on 

April 22, 2015. 

Motions for summary judgment were heard by Kenneth J. 

Fishman, J.; a motion for class certification was heard by S. 

Jane Haggerty, J.; and the entry of judgment was ordered by 

Fishman, J.

 

1 On behalf of herself and all others similarly situated.

2 Francis Layes.

3 Chelmsford Group, LLC. The defendants' third-party claims 

against Gagnon Brothers Oil Company, Inc., and Leo Marchand, 

Inc., doing business as Colonial Oil, successor in merger 

between Chelmsford Colonial Oil, Inc., and Leo Marchand, Inc., 

were dismissed, and the defendants have withdrawn their appeal 

from that decision. The third-party defendants have not 

participated in this appeal.
2

Ethan R. Horowitz for the plaintiffs.

Trevor J. Keenan for the defendants.

Maura Healey, Attorney General, & Daniel A. Less, Assistant 

Attorney General, for the Attorney General, amicus curiae, 

submitted a brief.

HANLON, J. RHP Properties, Inc. (RHP Properties), a large 

owner and operator of manufactured housing communities, has a 

nationwide policy requiring its residents to pay for the 

maintenance, repair, and replacement of their privately-owned, 

individually-metered fuel tanks. The main question posed in 

this appeal is whether that policy passes muster under the 

provisions of the Manufactured Housing Act, G. L. c. 140, 

§§ 32A-32S (act), and the Attorney General's regulations 

promulgated thereunder, 940 Code Mass. Regs. §§ 10.00 (1996)

(Attorney General's regulations).4,5 A judge of the Superior 

Court decided that it did not, and entered judgment for the 

individual plaintiffs, Rosa and Francis Layes. We agree with 

that decision, but conclude that the denial of Rosa's6 motion for 

class certification by another judge (motion judge) constituted 

 

4 We acknowledge the amicus brief submitted by the Attorney 

General. 

5 All citations to 940 Code Mass. Regs. §§ 10.00 are for the 

year 1996.

6 To avoid confusion, we refer to Rosa and Francis Layes 

individually by their first names.
3

an abuse of discretion. Accordingly, we affirm in part and 

reverse in part.

Background. None of the operative facts is in dispute. 

Rosa and Frank Layes live at Chelmsford Commons, a manufactured 

housing community with approximately 250 home sites (Chelmsford 

Commons or CC park).7,8 The Layeses, like some eighty percent of 

the CC park residents, heat their manufactured home primarily 

with oil, which is stored in an above-ground tank situated on a 

cement pad adjacent to their home. The oil tank serves only 

their home.9 Pursuant to their lease agreement, the Layeses and 

all CC park residents are responsible for purchasing their own 

fuel oil.

In 2006, the Layeses purchased a new tank. The CC park

rules at the time tied utility maintenance duties to the 

location of the systems; the park's operators were responsible 

for everything on the exterior of the homes, while residents

 

7 Consistent with the unique nature of manufactured housing 

community living, the Layeses own their home, but rent the land 

on which their home sits.

8 The majority of the CC park residents are elderly or 

disabled, and receive low to moderate income.

9 The oil tank was situated eight inches from the home in 

plain view from the home's rear window; it had a fuel gauge on 

top.
4

were responsible for everything in the interior.10 However, 

par. 9.h of the rules specifically required the residents to 

maintain their own oil tanks.11

In April, 2011, RHP Properties purchased the CC park

through the Chelmsford Group, LLC (Chelmsford Group) 

(collectively, defendants).12 Thereafter, a document titled 

"Chelmsford Commons Rules and Regulations," dated April 22, 

2011, was circulated to the park residents showing that par. 9.h

had been deleted. (Paragraph 9 otherwise remained unchanged.) 

 

10 Paragraph 9 of the Rules of Chelmsford Mobile Home Park, 

effective September 30, 2008, the provision governing utilities, 

stated that 

"a. . . . The owner/operator shall provide, pay for, 

maintain, and repair systems for providing water, sewage 

disposal, and electricity up to the point of connection 

with each manufactured home, in accordance with applicable 

laws"; and 

"b. . . . The tenants are responsible for paying for the 

maintenance and repair of utilities from the point of 

connection to the manufactured home to the inside of the 

home."

11 Paragraph 9.h of the Rules of Chelmsford Mobile Home 

Park, effective September 30, 2008, stated:

"Oil Barrels: Tenants are responsible for the 

maintenance and upkeep of their oil tanks and are 

responsible for complying with all city and state 

ordinances."

12 RHP Properties, the Chelmsford Group, and their property 

manager qualify as owners and "operators" of a manufactured 

housing community for purposes of the act. See 940 Code Mass. 

Regs. § 10.01.
5

The Attorney General later approved the March, 2013, version of 

these rules, which contained the same allocation of maintenance 

duties as the 2011 rules and regulations.13

Notwithstanding these "official" CC park rules, the 

defendants implemented a policy placing all burdens and costs 

associated with the home heating oil systems on the residents.14 

The defendants required new and renewing residents to sign 

standard lease agreements that made the residents responsible 

for "the maintenance and replacement of any above ground oil or 

fuel storage tanks." The policy was described in an "addendum" 

to the park rules and was posted in the park management office. 

 

13 No park rule may be implemented without first submitting 

the proposed rule to both the Attorney General and the Director 

of the Department of Housing and Community Development for 

approval. See G. L. c. 140, § 32L (5). There is evidence in 

the record that, dating back to 1998, two years after the 

Attorney General's regulations were promulgated, the Attorney 

General's Office interpreted the regulations to place the duty 

to install, repair, and maintain above-ground oil tanks on the 

park owner. 

14 The Chelmsford Commons policy is consistent with RHP 

Properties' nationwide policy to hold park residents responsible 

for all aspects of their oil tanks, including maintenance, 

repair, replacement, and remediation work in the event of spills

-- irrespective of the residents' negligence or misconduct. 

Joseph Carbone, an RHP Properties vice president, likened the 

fuel tanks to privately-owned automobiles. According to 

Carbone, if a privately-owned automobile leaks oil all over the 

home site, the resident should be responsible for the clean-up 

costs. RHP Properties applies the same reasoning to home 

heating fuel tanks.
6

The defendants admit that at no time have they maintained, 

repaired, or replaced any exterior components of the residents' 

home heating oil systems in the CC park. They have required the 

residents to do the following with respect to the exterior 

components: (1) the sanding and painting of rusted oil tanks; 

(2) the connection of the tanks to the homes and the removal of 

unused tanks; and (3) the installation of either protective 

sleeves on the fuel lines connecting the tanks to the homes or 

oil safety valves.15 Many residents who failed to perform this 

work at their own cost were threatened with legal action or were 

sued by the defendants. 

On May 21, 2014, the Layeses smelled oil on their home 

site. Francis discovered oil leaking from the bottom of the 

tank. The Layeses immediately placed a container under the tank

to catch the oil, and notified CC park maintenance employee

Ronald Hennessey and their oil supplier, Gagnon Brothers Oil 

Company (Gagnon). A Gagnon employee responded and pumped the 

remaining oil in the tank into a temporary transfer tank. The

compromised tank was removed from the site and destroyed. 

Thereafter, Hennessey and an RHP Properties manager informed 

Rosa that it was the Layeses' duty to replace the tank. The 

 

15 The third requirement was imposed in order to bring all 

oil tanks in the CC park into compliance with G. L. c. 148, 

§ 38J (b). See St. 2008, c. 453, § 3, effective September 30, 

2011.
7

Layeses, who had two small children, could not afford the cost 

of a new tank. In September, 2014, the defendants rented a 

temporary tank for the Layeses and had it connected to their 

home.

When Rosa attempted to schedule an oil delivery in January, 

2015, Gagnon refused to provide additional oil until the Layeses

purchased a new permanent tank. Although Rosa contacted other 

oil suppliers, she was unable to find a supplier who would fill 

the temporary tank. For the rest of the 2015 heating season, 

the Layeses rationed their remaining oil supply. The 

temperature in their home routinely fell into the 50s (degrees, 

Fahrenheit) in the mornings. On August 24, 2015, the Layeses

observed the Chelmsford Commons manager and a third party 

disconnect, drain, and remove the temporary tank from their home 

site. 

Legal proceedings. On April 22, 2015, the Layeses filed a 

complaint, alleging that the defendants' failure to maintain, 

repair, and replace the exterior components of their home 

heating system (and those of the other residents of the CC park) 

violated the act, the Attorney General's regulations, and G. L.

cc. 93A and 186. The defendants asserted counterclaims against 

the Layeses, alleging negligence and liability under G. L.

c. 21E for the cleanup costs arising from the release of oil on 

the Layeses' home site. On November 2, 2015, with winter 
8

approaching, a judge of the Superior Court issued a preliminary 

injunction requiring the defendants to provide the Layeses with 

a new fuel tank and to connect it to their home.16

Ruling on cross motions for summary judgment, a judge 

allowed the Layeses' renewed motion for partial summary judgment 

on their individual c. 93A claims and on the defendants' amended 

counterclaim. Another judge subsequently denied Rosa's motion 

for class certification. Final judgment in favor of the Layeses

entered on their two substantive claims (under c. 93A and 

c. 186, § 14),17 and the judge awarded them three months' rent in 

damages as well as attorneys' fees.18 See G. L. c. 186, § 14. 

 

16 On August 29, 2016, the Attorney General's Office sent a 

letter to the CC park manager, instructing RHP Properties to 

stop enforcing the November, 2015, version of the CC park rules, 

which had never been submitted for the Attorney General's 

approval as required by G. L. c. 140, § 32L (5). See 940 Code 

Mass. Regs. § 10.02(4) (making it an unfair or deceptive act or 

practice for park operators to enforce unapproved rules). The 

letter indicated that the 2015 CC park rule required residents 

to maintain and to replace their above-ground oil tanks and that 

the rule violated the Attorney General's regulations; further, 

the letter requested that RHP Properties assume the maintenance 

duties required by the regulations. When the defendants failed 

to respond, the Attorney General's Office reiterated the 

position and the requests in a follow-up letter sent to RHP 

Properties' Michigan office. 

17 At the pretrial conference, the attorneys agreed that the 

remaining issues in the case could be decided on the papers 

without the necessity of a trial.

18 To the extent that the defendants argue that the trial 

court's award was based solely on the G. L. c. 93A finding in 

the Layeses' favor, the amount of the award demonstrates that 
9

The judge also dismissed the defendants' counterclaims and 

permanently enjoined the defendants "from implementing or 

engaging in any policies or practices that contravene or violate 

940 Code Mass. Regs. §§ 10.03(2)(n) and 10.05(4)(d)." These 

timely cross appeals followed.19

As the defendants point out, were we to conclude that the 

judge erred in entering judgment for the Layeses on their 

individual claims, there would be no need to reach the merits of 

the certification ruling. We start our analysis there.

Discussion. A. Individual claims. 1. Standard of 

review. We review the allowance of a motion for summary 

judgment de novo, assessing whether, viewing the facts in the 

light most favorable to the nonmoving party (here, the 

defendants), the moving party (the Layeses) was entitled to 

judgment as matter of law. See Homeowner's Rehab, Inc. v.

Related Corporate V SLP, L.P., 479 Mass. 741, 750 (2018). 

Courts construe regulations in the same way as statutes, 

applying traditional canons of interpretation. See Armata v.

Target Corp., 480 Mass. 14, 19 (2018). The words of a 

 

the judge imposed liability and statutory damages under G. L. 

c. 186, § 14.

19 The defendants have not argued that the judge erred in 

dismissing their amended counterclaim. We therefore deem all 

counterclaims waived. See Abate v. Fremont Inv. & Loan, 470 

Mass. 821, 833 (2015). In addition, we note that Francis is not 

a party to the appeal from the class certification ruling.
10

regulation are given their usual and ordinary meaning. Id. If 

the meaning of a term is clear, courts give effect to that 

language; but if the language is ambiguous enough to support 

more than one rational interpretation, courts will give effect 

to the interpretation that furthers the purpose of the framers. 

See Peterborough Oil Co., LLC v. Department of Envtl.

Protection, 474 Mass. 443, 448 (2016). The interpretation of a 

regulation is a question of law that is reviewed de novo. See 

Morgan v. Massachusetts Homeland Ins. Co., 91 Mass. App. Ct. 1, 

8 (2017). 

2. Statutory scheme. "Both the Legislature and the courts 

of the Commonwealth have recognized that manufactured housing 

communities provide a viable, affordable housing option to many 

elderly persons and families of low and moderate income, who are 

often lacking in resources and deserving of legal protection."20 

Greenfield Country Estates Tenants Ass'n v. Deep, 423 Mass. 81, 

83 (1996). The act was first enacted in 1939, in order to 

 

20 Once fully set up on a foundation at a particular site 

and connected to utilities, manufactured houses generally are 

not relocated. See Commonwealth v. DeCotis, 366 Mass. 234, 238 

(1974). Thus, unlike tenants living in traditional residential 

housing, park residents cannot simply pack up their homes and 

move without losing a substantial asset. As individuals of 

limited means with limited housing options, park residents may 

be especially vulnerable to unfair park rules. See id. at 243 

(tenants' willingness to pay resale fees where no services 

rendered therefor "demonstrate[d] the extent to which the [park 

owners] had their tenants at their mercy").
11

protect the rights of residents of mobile home parks. See G. L.

c. 140, §§ 32A-32S; Quinn v. Rent Control Bd. of Peabody, 45 

Mass. App. Ct. 357, 359 (1998). The law "provide[s]

comprehensive and substantial rights to owners of manufactured 

homes who place such structures upon land rented by them." 

Danusis v. Longo, 48 Mass. App. Ct. 254, 255 (1999). 

Over the course of time, the Legislature has subjected park 

owners to progressively more extensive regulations. See Quinn, 

45 Mass. App. Ct. at 359 n.4. In 1993, the Legislature further 

strengthened the protections of the act in two ways relevant to 

this litigation. First, the Legislature made any violation of 

the act's provisions a per se violation of G. L. c. 93A. See 

G. L. c. 140, § 32L (7), as amended by St. 1993, c. 145, § 12; 

Quinn, 45 Mass. App. Ct. at 364 n.10. At the same time, the 

Legislature authorized the Attorney General to promulgate 

regulations deemed necessary for the "interpretation,

implementation, administration and enforcement" of the act. 

G. L. c. 140, § 32S. As the statute made clear, the authority 

given to the Attorney General supplements the Attorney General's 

preexisting authority to regulate manufactured housing

communities pursuant to the Consumer Protection Act. See 

c. 140, § 32S; G. L. c. 93A, §§ 2, 9; 940 Code Mass. Regs.

§ 3.17 (1993) (regulating the landlord-tenant relationship). To 

fulfill the statutory directive, the Attorney General 
12

promulgated Title 940 Code Mass. Regs. §§ 10.00 (1996). In 

these regulations, the Attorney General established detailed 

requirements concerning the respective rights and duties of park 

residents and operators.21

3. General Laws c. 93A, § 9, claims. a. Park operator's 

removal and replacement duties. The Attorney General's 

regulations directly address the factual situation presented by 

this case. If an oil tank leaks, as it did here, the cost of 

removing and replacing it belongs to the park operator unless 

the negligence of the resident caused "the environmental 

concerns or risks." 940 Code Mass. Regs. § 10.03(2)(n)

(§ 10.03[2][n]).22 No other exception to the park operator's

 

21 For a more detailed discussion of the history and 

provisions of the act, the State sanitary code, and regulations 

and law guides promulgated by various Massachusetts Attorneys 

General, see Craw vs. Hometown America, LLC, U.S. Dist. Ct., No. 

18-12149 (D. Mass. Mar. 21, 2019) (denying motion to dismiss 

park residents' class action complaint charging defendants with 

unlawfully refusing to make necessary repairs to homesite 

infrastructure).

22 Title 940 Code Mass. Regs. § 10.03(2) provides in 

pertinent part:

"It shall be an unfair or deceptive act or practice in 

violation of M.G.L. c. 93A for an operator:

. . .

"(n) to require any resident to pay for the removal or 

replacement of oil storage tanks on a home site to meet 

environmental concerns or risks not caused by the 

negligence of the resident, provided that the operator may 
13

liability is provided. As the Attorney General has explained, 

the regulation requires park operators to incur these costs 

initially because they are "usually better able to pay for or 

finance these costs upfront." Attorney General's Guide to 

Manufactured Housing Community Law § II.D.8.h (March 2009) 

(Attorney General's Guide).23 Any operator who improperly 

transfers to the resident the financial responsibility for 

replacement costs commits an unfair or deceptive act or practice 

 

recover such costs as capital improvements in accordance 

with 940 CMR 10.03(2)(l)."

23 This provision in the 2009 Attorney General's Guide

concerning "oil storage tanks" remained unchanged in the 2015 

version of the Guide. Section II.D.8.h of the 2009 Attorney 

General's Guide states:

"Oil storage tanks. In recent years, community 

owner/operators have become concerned about their potential 

legal liability stemming from the environmental risks posed 

by leaking underground oil storage tanks. The [Attorney 

General] Regulations require that the cost of removing or 

replacing an oil storage tank should be initially incurred 

by the community owner/operator, who is usually better able 

to pay for or finance these costs upfront. Thus, you [the 

resident] may not be charged directly for the removal or 

replacement of oil storage tanks, but your community 

owner/operator may eventually recover such costs as capital 

improvements, in the manner allowed by law. 940 C.M.R. 

10.03(2)(n). This general rule applies whether the tank is

above or below-ground. There is one exception to the 

general rule: where your [the resident's] negligence has 

caused the environmental concern or risk posed by the oil 

tank, you may be held directly responsible for removing or 

replacing it."
14

in violation of G. L. c. 93A, § 2 (a). See § 10.03(2)(n). This 

clear and unambiguous language controls our decision here. 

The defendants, relying on the regulations "read in their 

entirety" and the provisions governing fuel charges for 

individually metered heating fuel sources and operator 

maintenance duties, see 940 Code Mass. Regs. §§ 10.05(4)(b)(3) 

and 10.05(4)(d), urge this court to carve out another exception 

to liability for privately-owned, individually-metered tanks. 

We decline to do so. Clearly, it would be inappropriate to make 

a substantive change to the interpretation of a specific 

regulation by using language that the Attorney General did not 

see fit to include or even reference. See Thurdin v. SEI 

Boston, LLC, 452 Mass. 436, 444 (2008) ("where there is an 

express exception in a statute, it comprises the only limit on 

the operation of the statute and no others will be implied"). 

Moreover, we are not inclined to adopt a judicial gloss that not 

only conflicts with the Attorney General's Guide, but also 

contravenes the purpose of the act to allocate reasonably the 

burden of addressing relevant safety and environmental concerns, 

as well as to assist a vulnerable class "deserving of legal 

protection." Greenfield Country Estates Tenants Ass'n, 423 

Mass. at 83.

On the undisputed facts here, the Layeses were entitled to 

summary judgment on this aspect of their c. 93A claims. 
15

Following the failure of their tank, RHP Properties attempted to 

require them to fund the cost of a replacement tank until the 

defendants were ordered to provide one by the trial court.24

This unfair or deceptive act did not stand alone. The 

defendants also had inserted in their standard lease agreement a 

provision placing an unconditional replacement duty on all of 

the residents, including the Layeses; in addition, the CC park 

rule to the same effect was posted only in the management 

office, far from scrutiny by the Attorney General. Moreover, 

both the lease provision and the CC park rule were inconsistent 

with § 10.03(2)(n) and the Attorney General's Guide. For these 

reasons, as a matter of law, the CC park rule placing the 

replacement burden on the residents in all cases was 

"unreasonable, unfair or unconscionable."25 G. L. c. 140, 

§ 32L (1). See § 32L (1) (prohibiting promulgation of such

rules). The defendants' actions violated the act and the 

 

24 In the trial court, the defendants invoked the negligence 

exception to liability primarily on the basis that the Layeses 

admittedly did no maintenance work on their tank. As explained 

infra, it was the defendants who had the duty to maintain the 

tank.

25 Although the act does not define the word "rule," the 

Attorney General's regulations broadly define the word to mean 

"any written or unwritten rule, regulation, or policy imposed by 

an operator that governs procedures, conduct, or standards 

within the manufactured housing community . . . ." 940 Code 

Mass. Regs. § 10.01.
16

Attorney General's regulations, and constituted additional 

unfair and deceptive acts or practices within the meaning of 

c. 93A, § 2 (a).26 See G. L. c. 140, § 32L (7); 940 Code Mass.

Regs. § 10.02(2), (3); Clark v. Leisure Woods Estates, Inc., 89 

Mass. App. Ct. 87, 94 (2016).

b. Park operator's maintenance duties. We turn to the 

legal question of more wide-reaching significance. The Layeses

claim that the defendants violated the Attorney General's 

regulations and c. 93A by placing the burden of maintaining the 

exterior components of the oil systems on the Layeses and all 

the CC park residents. The defendants argue that, even if they 

can be held liable to the Layeses under c. 93A in the limited 

factual circumstances of this case, the defendants have no 

general duty under the Attorney General's regulations to 

"inspect, repair, service, and maintain" the residents' oil 

tanks. The judge read the regulations to place the maintenance 

burden on the defendants. We agree.

The park operator's duties with respect to basic utilities 

are set forth in 940 Code Mass. Regs. § 10.05(4) (§ 10.05[4]). 

A park operator is required to make "basic utilities" available 

 

26 The defendants did not challenge the Layeses' 

satisfaction of the other elements of their individual G. L. 

c. 93A, § 9, claims.
17

to each site.27 See § 10.05(4)(a),(b). Basic utilities are 

defined in the regulations as the "utility services listed in 

. . . [§] 10.05(4)." 940 Code Mass. Regs. § 10.01. Five 

essential utilities are listed therein: electrical service of 

appropriate amperage, a natural gas connection if "economically 

reasonable," a sufficient supply of potable water, a sanitary 

sewage disposal system, and "electricity, natural gas, or other 

heating fuel" (i.e., a source of heat). § 10.05(4)(b)(1)-(3). 

The regulations specify that the operator must not only 

"supply," but also "pay for" the water and the sewage disposal 

system. See § 10.05(4)(b)(1), (2). The operator must also 

"supply and pay for" the resident's heat unless the energy 

supply is separately metered to the individual home and the 

resident agrees to pay for the heat in the occupancy agreement.28 

 

27 Pursuant to § 10.05(4)(f), any operator who intentionally 

interrupts utility service furnished under § 10.05(4)(a) or (b)

is subject to liability under G. L. c. 186, § 14. See also the 

Attorney General's regulations governing landlord-tenant 

relationships, e.g., 940 Code Mass. Regs. § 3.17(6)(f) (1993) 

(making it an unfair and deceptive practice to willfully violate 

any provision of c. 186, § 14). Compare 940 Code Mass. Regs. 

§ 3.17(6)(g)(1) (1993) (making it unfair and deceptive practice 

for owner obligated by law to provide gas or electric service to 

resident to fail to provide it).

28 This rule permitting park operators to shift heating 

costs to their residents is consistent with the State sanitary 

code. See 105 Code Mass. Regs. § 410.354(A) (2005) (metering of 

electricity and gas); § 410.355 (oil); Young v. Patukonis, 24 

Mass. App. Ct. 907, 908-909 (1987). 
18

See §§ 10.05(4)(b)(3) and 10.05(4)(e) (permitting use charges 

for utilities determined by metering). The regulations permit 

the park operator to recover its expenses in providing these 

basic utility services through nondiscriminatory rent increases. 

See § 10.05(4)(c). 

The duty to maintain the park utilities is specifically 

governed by § 10.05(4)(d),29 which requires operators to install 

all basic utilities "to the point of connection at each 

manufactured home and [to] maintain[ them] in good repair and 

operating condition . . . without charge to residents . . . ." 

Home heating fuel falls within the definition of basic utility.

The defendants, reading §§ 10.05(4)(b)(3) and 10.05(4)(d) 

together, argue that where, as here, they properly transferred 

the duty "to supply and pay for" the heating oil to the Layeses, 

all the defendants' other regulatory duties with respect to the

 

29 Title 940 Code Mass. Regs. § 10.05(4)(d) provides in 

full:

"The basic utilities described in 940 CMR 10.05(4)(a) and 

(b), as applicable, shall be installed to the point of

connection at each manufactured home and maintained in good

repair and operating condition by the operator without

charge to residents, except as damage thereto is caused by

the negligent act or omission or willful misconduct of a

resident. All such installation and maintenance shall be 

in accordance with applicable laws, codes, and professional

standards" (emphasis added). 

The language of this regulation is similar to language found in 

the State sanitary code. See 105 Code Mass. Regs. § 410.190 

(2005) (hot water); § 410.200 (2005) (heating facilities).
19

oil tanks -- including the duty to replace leaking tanks -- were 

eliminated. We are not persuaded. The text of § 10.05(4)(d) 

permits the park operator to pass on the cost of maintenance and 

repair if the resident, through negligence or willful 

misconduct, causes damage to the utility components. As in

§ 10.03(2)(n), no other exception is provided. If the Attorney 

General wanted to relieve operators from their other duties in 

this situation, she would have expressly included appropriate 

language in the regulations. See Thurdin, 452 Mass. at 444. 

The phrase "as applicable" in § 10.05(4)(d) does not 

support the defendants' argument that they have no duties at all 

with regard to individually-metered utilities. We read the 

phrase "as applicable," which modifies both § 10.05(4)(a) and 

(b) (i.e., all basic utilities), simply to limit the park 

operator's duties to the basic utilities actually in use in the 

park. If, for example, park residents heat with oil, no purpose 

would be served by requiring a park operator to install and to 

maintain gas lines and other unnecessary equipment. 

Nor can the plain meaning of the regulations be overcome by 

the defendants' policy arguments. Many retired and disabled 

park residents are not in a position, physically or financially, 

to inspect regularly and maintain their oil tanks (or to hire 

professionals to do so). For individuals struggling to pay for 

their basic living expenses, oil tank maintenance and 
20

replacement is beyond their means. In fact, an RHP Properties 

manager acknowledged that some park residents will "overlook" 

these duties, especially the seniors.

In addition, as landowners, the defendants acknowledge that 

they are potentially responsible persons for any releases of 

hazardous materials at Chelmsford Commons. See G. L. c. 21E, 

§ 5. Pollution to the environment caused by leaking oil tanks 

is not in anyone's interest, and remediation work, as the 

defendants have put it, can be "catastrophically expensive." In 

light of that potential "traumatic" liability, the wisdom of a 

corporate policy imposing oil tank maintenance (and replacement) 

duties on residents living on fixed incomes is certainly one 

that the Attorney General had cause to question.

Furthermore, the Attorney General reasonably could conclude

that the defendants are in at least as good, if not better, 

position than the residents to perform these tasks. The 

defendants' employees already monitor the condition of all the

oil tanks in the CC park four times per year, checking for 

anything posing environmental concerns.30 Records of each 

inspection are kept in the park office. These records can serve 

as a valuable reference guide in gauging when tank maintenance 

 

30 Routine inspections performed by the defendants' 

employees involve making observations of the tanks (which 

generally leak from their bottoms), looking under the homes for 

signs of leaks, and checking the site for the odor of fuel oil.
21

and replacement should be scheduled. As the Attorney General's 

Guidelines point out, park operators and management companies 

also are better positioned to keep up with new laws and industry 

practices relating to utility systems. See, e.g., note 15, 

supra. Finally, any harshness in what the defendants term an

"oppressively burdensome" rule is softened by the defendants' 

ability to recoup, through community-wide, nondiscriminatory 

rent increases, the expenses incurred in maintaining the utility 

systems and in replacing oil storage tanks due to environmental 

concerns or risks.31 See, e.g., 940 Code Mass. Regs.

§§ 10.03(2)(l), (n); 10.05(4)(c).

Where a sensible construction of a regulation is available, 

we will not adopt an interpretation that leads to an illogical 

result. See New England Power Generators Ass'n v. Department of 

Envtl. Protection, 480 Mass. 398, 411 (2018). With respect to 

other basic utilities, the defendants acknowledge that, under 

their interpretation of the regulations, residents with 

individually-metered electricity and natural gas would be 

responsible for maintaining the exterior components of those 

utility systems leading up to their homes. Components required 

 

31 The defendants' concern for the rights of the residents 

posed by routine site inspections was not raised below, and we 

do not consider it further. See 940 Code. Mass. Regs. 

§ 10.03(8)(b).
22

to provide electricity and gas service would include wires, 

transformers, and underground pipes.32 This result cannot be 

what the Attorney General intended.

In sum, we see no error in the judge's interpretation 

placing the duty to maintain, repair, and replace the exterior 

components of oil heating systems upon the defendants. The only 

exceptions to this rule are those involving resident negligence 

or misconduct. Residents who cause the "environmental concerns 

or risks" are responsible to pay for removing and replacing 

compromised oil tanks. § 10.03(2)(n). Residents who damage the 

basic utilities in the park are responsible for the costs of 

repair. However, the operator cannot justify asking a resident 

to pay for a replacement tank on the ground that the resident

was negligent in failing to perform routine maintenance on the 

tank, which in fact is the park operator's responsibility under 

 

32 We note that, even where the landlord is not required to 

pay for electricity and gas used in a dwelling unit, the State 

sanitary code still places the duty on the landlord to install 

and maintain the wiring and pipes. See 105 Code Mass. Regs. 

§ 410.354(C) (2005). As the sanitary code has the same 

objectives and covers the same subject matter, its provisions 

should be read in pari materia with the Attorney General's 

regulations. See Commonwealth v. J.A., 478 Mass. 385, 387 

(2017) (in interpreting statutes, courts may find other statutes 

covering same subject instructive). See also Molly A. v. 

Commissioner of the Dep't of Mental Retardation, 69 Mass. App. 

Ct. 267, 281 (2007).
23

the regulations. Thus, summary judgment was properly entered on 

this aspect of the Layeses' individual c. 93A claims.

4. General Laws c. 186, § 14, claims. In defending the 

class action ruling, the defendants argue that Rosa cannot prove 

her quiet enjoyment claim individually and that she failed to 

establish a violation of G. L. c. 186, § 14 (§ 14).33 We 

disagree. Liability already was established under § 14 as part 

of the final judgment. (See note 18, supra.) However, the 

judge did not state the ground or grounds upon which he 

predicated that liability.

 

33 General Laws c. 186, § 14, provides, in relevant part: 

"Any lessor or landlord of any building or part thereof 

occupied for dwelling purposes . . . including a 

manufactured home or land therefor, who is required by law 

. . . to furnish water, hot water, heat, light, power, [or] 

gas . . . to any occupant of such building or part thereof, 

who willfully or intentionally fails to furnish such water, 

hot water, heat, light, power, [or] gas . . . at any time 

when the same is necessary to the proper or customary use 

of such building or part thereof . . . or who transfers the 

responsibility for payment for any utility services to the 

occupant without his knowledge or consent, or any lessor or 

landlord who directly or indirectly interferes with the 

quiet enjoyment of any residential premises by the occupant 

. . . shall be punished by a fine of not less than twentyfive dollars nor more than three hundred dollars, or by 

imprisonment for not more than six months. Any person who

commits any act in violation of this section shall also be 

liable for actual and consequential damages or three 

month's rent, whichever is greater, and the costs of the 

action, including a reasonable attorney's fee . . . ."
24

The Layeses proceeded under three of the five prongs of 

§ 14. They alleged that the defendants' "refusal to assume 

responsibility for the maintenance, repair and replacement of 

the home heating oil system external components" constituted the 

(1) willful and intentional failure to furnish utility services 

required by law; (2) interference with their quiet enjoyment of 

their premises; and (3) transfer of the duty to pay for utility 

services without their consent. See § 14; note 33, supra. We 

conclude that the Layeses were entitled to judgment as matter of 

law under all three theories of liability. The undisputed facts 

establish that the defendants refused to replace the Layeses'

oil tank as required by § 10.03(2)(n). In addition, as the

second heating season without a permanent oil tank approached, 

the defendants removed the temporary tank and the fuel lines 

from the home site, leaving the family with no means to get home 

heating oil inside to their furnace. This conduct amounted to 

the "willful[] . . . interrupt[ion of] . . . utility service[s]" 

for purposes of § 14 liability. See 940 Code Mass. Regs.

§ 10.05(4)(f). 

Liability also could properly have been imposed under the 

second prong of § 14 asserted by the Layeses. The term "quiet 

enjoyment" at common law signified the tenants' rights to be 

free from "serious interferences" with their tenancies. Simon

v. Solomon, 385 Mass. 91, 102 (1982). Serious interferences 
25

means "acts or omissions that impair the character and value of 

the leased premises" (quotation and citations omitted). Id. 

Section 14 codified these common-law rights.34 See Al-Ziab v.

Mourgis, 424 Mass. 847, 850 (1997). We note that, even where a 

landlord has not intended to violate a tenant's rights, the 

landlord may be held responsible for breaches of the covenant of 

quiet enjoyment that "flowed as the natural and probable 

consequence of what the landlord did, what he failed to do, or 

what he permitted to be done." Blackett v. Olanoff, 371 Mass.

714, 716 (1977).

Here, the defendants failed to provide the Layeses with the 

means to heat their home centrally during the winter. As a 

result of the lack of adequate heating facilities, the 

conditions inside the home made it uninhabitable in the early 

morning hours.35 See 105 Code Mass. Regs. § 410.201 (2005)

(establishing minimum temperature requirement of at least sixty-

 

34 The Supreme Judicial Court has observed that § 14 

"belongs to a body of statutes establishing tenants' remedies 

against landlords who fail to provide safe and sanitary 

housing." Simon, 385 Mass. at 100.

35 As the defendants point out, the Layeses did have three 

other potential sources of heat in their home: a propane 

fireplace insert, a wood-burning stove, and a kerosene heater. 

These sources, however, were unable to provide adequate heat 

through the night. We also note that for safety reasons, a 

kerosene heater may not be used to satisfy the State sanitary 

code requirement that the owner provide heating "facilities." 

See 105 Code Mass. Regs. § 410.200(A), (B) (2005).
26

four degrees between 11:00 P.M. and 7:00 A.M.). Heat is an 

essential service that "go[es] to the essence of what the 

landlord is to provide." Charles E. Burt, Inc. v. Seven Grand 

Corp., 340 Mass. 124, 127 (1959). Few things would more 

seriously impair the character and value of leased premises than 

lack of heat. See 105 Code Mass. Regs. § 410.200(A) (2005)

(heating facilities required); Abdeljaber v. Gaddoura, 60 Mass.

App. Ct. 294, 301 (2004) (affirming award of three months' rent 

under c. 186 based on failure to provide tenants with adequate 

heat); Lowery v. Robinson, 13 Mass. App. Ct. 982, 982-983 (1982) 

(landlord's failure to provide heat during heating season 

qualified as serious impairment warranting c. 186 liability).

Moreover, we conclude that the judge properly could have 

found for the Layeses on their third theory -- that the 

defendants violated the statutory bar against transferring their 

duty to pay for utility services. Under the Attorney General's 

regulations, the park operator is required to provide basic 

utility services to the residents. The operator is required to 

maintain the utilities in good repair and operating condition at 

no expense to the residents up to the point of connection to the 

home. § 10.05(4)(d). The undisputed facts here established 

that, through their standard lease, the defendants transferred 

their duties and costs to the Layeses.
27

We reject the defendants' argument that the Layeses' claim 

does not fit within the plain language of § 14. The duty to 

provide "utility services," see 940 Code Mass. Regs. §§ 10.01, 

10.05(4), encompasses the duty to maintain and to replace the 

components required to deliver those services. The defendants 

argue that the residents, through their leases, agreed to assume 

the maintenance and replacement duties and costs. This argument

fails. As matter of law, the residents could not consent to a 

lease provision transferring the defendants' regulatory duties 

to them. See 940 Code Mass. Regs. § 10.03(9)(b) (declaring any 

lease provision "which releases or limits the operator's 

liability arising under law . . . void and unenforceable");

Trustees of the Cambridge Point Condominium Trust v. Cambridge 

Point, LLC, 478 Mass. 697, 705 (2018) (recognizing that some 

contracts are void as against public policy and will not be 

enforced); Berman & Sons v. Jefferson, 379 Mass. 196, 199 n.6 

(1979) (finding exculpatory clause in lease "of no effect"); 

Boston Hous. Auth. v. Hemingway, 363 Mass. 184, 199 (1973) 

(holding that landlord's implied warranty of habitability cannot 

be waived by any lease provision). Thus, notwithstanding the 

lease provision, the transfer of responsibility for the services 

occurred without the residents' consent. The Layeses were 

entitled to judgment as matter of law under this prong of § 14

as well.
28

Finally, the defendants argue that their conduct did not 

rise to the level of a "serious interference[]," Simon, 385 

Mass. at 102, with the Layeses' tenancy. We disagree. Even 

assuming, without deciding, that a serious or substantial 

interference was a required element of an unlawful transfer 

claim, the Layeses made that showing here. The defendants 

implemented a policy that deprived the Layeses and other

residents of necessary utility services to which they were 

entitled. Moreover, despite complaints from residents and a 

warning from the Attorney General, the defendants failed to 

assume the duties required of them by the regulations. See AlZiab, 424 Mass. at 850 (noting that conduct involving some 

degree of fault is required to impose liability on landlord 

under § 14). As a result, the Layeses were entitled to an award 

of three months' rent, an amount that was greater than their 

actual and consequential damages.36

B. Class certification. 1. Procedural facts. In Rosa's

amended class action complaint, she sought the certification of 

a class of 240 current and former Chelmsford Commons residents 

who resided at the park at any time since April 22, 2011, and 

 

36 Where, as here, the tenants remained in possession during 

the breach, "actual damages 'are measured by the difference 

between the value of what the lessee should have received and 

the value of what he did receive.'" Curtis v. Surrette, 49 

Mass. App. Ct. 99, 104 (2000), quoting Darmetko v. Boston Hous. 

Auth., 378 Mass. 758, 761 n.4 (1979).
29

who heated their homes through oil-fueled systems. Her amended 

class action complaint looked much like the Layeses' original 

complaint. In it, she alleged that, since taking ownership in 

2011, the defendants had implemented an illegal policy affecting 

all members of the class, requiring the residents to maintain, 

repair, and replace the exterior components of their home 

heating oil systems. She further alleged that the defendants' 

policy violated the act, the Attorney General's regulations, and 

c. 93A, and that the transfer of the above-listed 

responsibilities to the residents constituted a transfer of the 

responsibility to pay for utility services to the residents 

without their consent, in violation of c. 186, § 14.37 She

asserted claims under c. 93A and c. 186 on behalf of herself and 

all members of the class, and sought permanent injunctive relief 

and compensatory damages for injuries arising from the 

defendants' refusal to carry out their regulatory obligations.38

Specifically, she sought certification of a consumer class under 

G. L. c. 93A, § 9 (2);39 and certification of both the cc. 93A 

 

37 Other theories of liability have been waived.

38 As part of the final judgment entered in connection with 

their successful individual claims, the Layeses obtained the 

prospective, permanent injunctive relief they sought on behalf 

of the class members still in residence at the CC park.
30

and 186 claims under Mass. R. Civ. P. 23, as amended, 471 Mass. 

1491 (2015).40

By the time the motion judge took up the motion for class 

certification, another judge had already found that the Layeses

were entitled to judgment as matter of law on their individual 

c. 93A claims. However, the motion judge denied Rosa's motion

 

39 General Laws c. 93A, § 9 (2), governs the certification 

of a class action under the consumer protection law and provides 

in relevant part:

"Any persons entitled to bring such action may, if the use 

or employment of the unfair or deceptive act or practice 

has caused similar injury to numerous other persons 

similarly situated and if the court finds in a preliminary 

hearing that he adequately and fairly represents such other 

persons, bring the action on behalf of himself and such 

other similarly injured and situated persons . . . ."

40 Rule 23 of the Massachusetts Rules of Civil Procedure 

provides, in pertinent part:

"(a) Prerequisites to Class Action. One or more members of 

a class may sue or be sued as representative parties on 

behalf of all only if (1) the class is so numerous that 

joinder of all members is impracticable, (2) there are 

questions of law or fact common to the class, (3) the 

claims or defenses of the representative parties are 

typical of the claims or defenses of the class, and (4) the 

representative parties will fairly and adequately protect 

the interests of the class.

"(b) Class Actions Maintainable. An action may be 

maintained as a class action if the prerequisites of 

subdivision (a) are satisfied, and the court finds that the 

questions of law or fact common to the members of the class 

predominate over any questions affecting only individual 

members, and that a class action is superior to other 

available methods for the fair and efficient adjudication 

of the controversy."
31

for class certification, concluding that she had failed to meet 

the requirements of both c. 93A, § 9 (2), and rule 23. Rosa 

appeals. 

2. Standard of review. We review a ruling denying class 

certification for abuse of discretion. See Salvas v. Wal-Mart 

Stores, Inc., 452 Mass. 337, 361 (2008). An abuse of discretion 

may be found if the motion judge relies on improper factors, 

engages in action that is "arbitrary, unreasonable, or 

capricious," or commits legal error (citation omitted). Id. On 

a motion under either rule 23 or c. 93A, § 9 (2), plaintiffs

must provide "information sufficient to enable the motion judge 

to form a reasonable judgment that the class meets the 

requirements of rule 23 [and c. 93A, § 9 (2)]; they do not bear 

the burden of producing evidence sufficient to prove that the 

requirements have been met" (emphasis added; citation omitted). 

Kwaak v. Pfizer, Inc., 71 Mass. App. Ct. 293, 297 (2008). 

The certification requirements of c. 93A, § 9 (2), and rule 

23 are not coextensive. See Bellermann v. Fitchburg Gas & Elec.

Light Co., 475 Mass. 67, 72 n.11 (2016). The statutory class 

certification standard has a more "mandatory tone" than the 

rule. Kwaak, 71 Mass. App. Ct. at 298. In exercising 

discretion with respect to a c. 93A certification request, the 

public policy of Massachusetts strongly favoring c. 93A class 

actions should be considered. See Bellermann, 475 Mass. at 71. 
32

Moreover, the judge should "bear in mind that our consumer 

protection statute was designed to meet a pressing need for an 

effective private remedy for consumers" (quotation and citation 

omitted). Fletcher v. Cape Cod Gas Co., 394 Mass. 595, 605 

(1985). In sum, the requirements of § 9 (2) are "easier to 

satisfy" than those of rule 23 (citation omitted). Gammella v.

P.F. Chang's China Bistro, Inc., 482 Mass. 1, 10 (2019).

3. General Laws c. 93A, § 9 (2), certification request. A 

plaintiff will prevail on her motion for certification under 

c. 93A upon showings that (1) she was "entitled to seek relief 

under c. 93A for . . . injuries resulting from the defendant[s' 

alleged] unfair or deceptive act or practice"; (2) the 

"assertedly unfair or deceptive act or practice that caused 

[her] injuries 'caused similar injury to numerous other persons 

similarly situated'"; and that (3) the plaintiff "would 

'adequately and fairly represent[] such other persons.'" 

Bellermann, 475 Mass. at 72, quoting G. L. c. 93A, § 9 (2). 

Here, the motion judge, adopting the earlier summary 

judgment interpretation of the Attorney General's regulations, 

ruled that the defendants were responsible for maintaining, 

removing, and replacing the oil tanks. However, she concluded 

that, while the defendants were "subject to liability under 

G. L. c. 93A if they require residents to pay for the removal or 

replacement" of their tanks, the defendants would not be liable 
33

to CC park residents as to whom the defendants took no 

affirmative action with respect to their tanks. To reach that 

conclusion, she reasoned that in order to commit an unfair or 

deceptive act or practice under c. 93A, an operator had to 

"impose" or "enforce" a rule or "otherwise take action" that 

conflicts with the act, the Attorney General's regulations, or 

other applicable law. See 940 Code Mass. Regs. §§ 10.02(2),

(3); 10.04(1)(a)(4).

Applying this reasoning to the information submitted by 

Rosa, the judge found that, to the extent that the class action 

claim arose out of the "enforcement" of the lease provision, 

Rosa provided evidence that the defendants had enforced it 

against only eighteen households. A putative class of this few 

in number, in the judge's view, failed to satisfy "the 

numerosity requirement of G. L. c. 93A, § 9 (2)." 

Next, the judge ruled that, absent some affirmative act, 

the mere existence of the lease provision did not amount to the 

"imposition" of a rule that violated 940 Code Mass. Regs.

§§ 10.03(2)(n), 10.05(4)(d); and c. 93A. Finally, the judge

questioned whether the "similar injury" requirement could be met

on a class-wide basis.

The judge's class certification analysis was flawed, and as 

a result, remand is required to properly consider the class 

certification calculus. To begin, the proposed class is 
34

sufficiently numerous. The plaintiff has defined the class as 

those current and former CC park residents, during a defined 

time period, who heated their homes "with a home heating oil 

system." This class definition was appropriately definite. The 

class members could be ascertained by objective criteria, and it 

is not contested that there were 240 such park residents. It is

the plaintiff's role to define the proposed class in the first 

instance, and where the proposed class is sufficiently definite, 

the judge ordinarily should not redefine it for numerosity 

purposes.

The recent decision of the Supreme Judicial Court in 

Gammella, 482 Mass. 1, is instructive in this regard, as in that 

case the court reversed a trial court's decision denying class 

certification based upon a perceived lack of numerosity. The 

court noted, among other things, that uncertainties about the 

particular facts of individual class members should not lead to 

denying class certification on numerosity grounds, "at least 

when hundreds of [proposed class members] are affected by an 

apparent prohibited 'class-wide practice.'" Id. at 13. Here, a 

class of 240 members is sufficiently numerous to qualify for 

class treatment.

Once the class has been defined and is sufficiently 

numerous, however, the next question, for a c. 93A class, is 

whether the purported class members suffered "similar injury" 
35

from the unfair or deceptive practice. See c. 93A, § 9 (2). 

This is the issue that appeared to cause the motion judge the 

most concern, because the evidence indicated that the unlawful 

lease provision was actively enforced against only eighteen of 

the 240 purported class members.

The judge's concern about whether the injuries were 

sufficiently "similar" was a valid concern. Nevertheless, we 

believe there are countervailing considerations that may justify 

the certification of a class under the circumstances. Each 

member of the proposed class here was required to sign a lease 

containing a clause that violated c. 93A. The question of the 

legality of the lease clause was an important and common issue 

to all proposed class members. Based upon our decision today, 

each purported class member was at least entitled to injunctive 

relief against enforcement of the clause. In adjudicating the 

class members' c. 93A claims, however, the judge must address 

whether each purported class member is also entitled to some 

amount of monetary relief. To be so entitled, a class member 

would need to show additional elements -- "injury" caused by the 

c. 93A violation, as well as the amount of any damages. See 

c. 93A, § 9 (1), (3).

Accordingly, as to the c. 93A class, one issue for the 

judge on remand is whether there are sufficiently similar 

injuries across the purported class. To prove a c. 93A claim 
36

and the entitlement to at least statutory damages, a plaintiff 

must show not only the c. 93A violation, but also some kind of 

"separate, identifiable harm" resulting from the c. 93A 

violation. Tyler v. Michaels Stores, Inc., 464 Mass. 492, 503 

(2013). Put another way, the mere fact that the offending 

clause existed in a resident's lease is not sufficient to 

establish a c. 93A injury; each CC park resident must show 

actual harm caused by the clause. See Tyler, supra. On the 

current record, it appears that many class members suffered some 

injury, although the nature and cause of the injury may have 

varied. For example, a CC park resident may have been injured 

due to enforcement of the clause against him (as in the Layeses'

case, where the family suffered inordinately cold indoor 

temperatures during the winter months, cf. id. at 504 & n.20),

or the park resident may have incurred the costs of maintenance

or other costs that resulted because the defendants had failed 

to maintain a fuel tank properly.41,42 On the other hand, it is 

 

41 We do not mean this list to be exhaustive. Purported 

class members may have additional theories for how they were 

injured as a result of the lease clause.

42 We do not agree with the motion judge's ruling that there 

could be no c. 93A violation as to a particular CC park resident 

unless the operator committed some additional "affirmative 

action" that amounted to "imposition" of the lease clause on 

that park resident. The placement of the clause in the lease 

documents was a c. 93A violation; no further "affirmative 

action" was required. See §§ 10.03(2)(n) and 10.05(4)(d). 
37

also possible that some proposed class members may not have 

suffered any harm as a result of the defendants' policies 

regarding residents' exterior fuel tanks. 

Accordingly, on remand the parties and the motion judge 

must address the claimed injuries (if any) of the purported 

class members; how the injuries are similar or different; and 

how they might be proved. In determining whether a class should 

be certified, the judge should keep in mind the principles, 

identified above, favoring c. 93A classes where circumstances 

warrant. Here, the c. 93A violation is common to the class. 

The fact that injury or damages may vary across the class is not 

necessarily a bar to class certification. Courts frequently 

have held that a class can be certified despite differences in 

damages among class members. See Salvas, 452 Mass. at 364

("Class certification may be appropriate where common issues of 

law and fact are shown to form the nucleus of a liability claim, 

even though the appropriateness of class action treatment in the 

 

Moreover, the judge's analysis incorrectly restricted the scope 

of the protection afforded under the law. Not only can an 

operator commit a violation of G. L. c. 93A, § 2 (a), by 

affirmative acts, it can also do so by inaction (i.e., failing 

to comply with provisions of either the act or the Attorney 

General's regulations). See 940 Code Mass. Regs. § 10.02(3); 

Clark, 89 Mass. App. Ct. at 94. Nevertheless, in order to 

recover under c. 93A, each purported class member must show not 

only a violation of c. 93A, § 2, but also a "separate, . . . 

distinct injury or harm." Tyler, 464 Mass. at 503.
38

damages phase is an open question"). The question for the 

motion judge is whether the injury issue can be resolved for 

each class member in a way that is manageable and reasonably 

efficient, and fair to both plaintiffs and defendants.43 See 

Fletcher, 394 Mass. at 605-607 (judge has discretion in applying 

similarity requirements of c. 93A, § 9 [2], and in evaluating 

suitability of proposed class).44 Here, the record suggests that 

the question of injury as to individual class members could 

present sufficient similarities so as to allow for such a fair 

and manageable resolution, which is a matter the motion judge 

can take up on remand.

4. General Laws c. 186, § 14, certification request. 

Finally, Rosa also asserts that a class should have been 

 

43 Although the defendants point out that they have a 

defense if injury was caused by the plaintiffs' own negligence, 

that is not a basis for denying class certification here. There 

was no evidence on this record suggesting that any resident had 

negligently caused an "environmental concern[] or risk[]," or 

had damaged any utility components through negligence or 

misconduct. See §§ 10.03(2)(n), 10.05(4)(d). The fact that the 

Attorney General's regulations may theoretically provide 

defenses to the defendants' liability as to hypothetical class 

members is not a basis for denying class certification. See 

Salvas, 452 Mass. at 367.

44 Although the requirements of "predominance" and 

"superiority," which are found in rule 23 (b), do not appear as 

express requirements in c. 93A, § 9 (2), "a judge retains some 

discretion to consider these factors in determining whether 

putative class members are 'similarly situated' and have 

suffered a 'similar injury'" (citations omitted). Bellerman v.

Fitchburg Gas & Elec. Light Co., 470 Mass. 43, 53 (2014).
39

certified on the § 14 claim.45 This contention is governed by 

Mass. R. Civ. P. 23, and presents different issues from those 

arising under c. 93A. For example, proof of liability involves 

different elements under c. 186, § 14, and c. 93A. See Cruz 

Mgt. Co. v. Thomas, 417 Mass. 782, 789 (1994) (claim under

c. 186, § 14, can be predicated on negligence); G. L. c. 186, 

§ 14 (landlord who, inter alia, "transfers the responsibility 

for payment for any utility services to the occupant without his 

knowledge or consent . . . shall be liable . . ."). Compare 940 

Code Mass. Regs. § 3.17(6)(f) (1993) (unfair and deceptive 

practice for owner to "violate willfully any provisions of 

[G. L.] c. 186, § 14"); G. L. c. 93A, § 9 (1) ("Any person . . . 

who has been injured by . . . any method, act or practice 

declared to be unlawful by [c. 93A, § 2,] . . . may bring an 

action . . ."). Moreover, if liability is found, damages under 

c. 186, § 14, may be more readily established than under c. 93A.

See, e.g., Clark, 89 Mass. App. Ct. at 91, quoting Darmetko v. 

Boston Hous. Auth., 378 Mass. 758, 762 (1979) (G. L. c. 186, 

§ 14, "allows a minimum recovery of three months' rent as an 

incentive to the pursuit of relief where the actual and 

 

45 As we have noted, on appeal, Rosa pursues only her theory that 

the defendants violated § 14's proscription against 

"transfer[ring] the responsibility for payment for any utility 

services to the occupant[s] without [their] knowledge or 

consent." See note 37, supra, and accompanying text.
40

consequential damages are slight or are difficult to prove"). 

Compare G. L. c. 93A, § 9 (providing for "actual damages or 

twenty-five dollars, whichever is greater" for injury resulting 

from violation that was not willful or knowing). Because the 

motion judge did not address certification of the claim under 

c. 186, § 14, remand is required for this reason as well.

Conclusion. So much of the judgment as denied class 

certification is vacated, and the question of class 

certification is remanded for further proceedings consistent 

with this opinion. In all other respects, the judgment is 

affirmed.

So ordered.