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08/12/77 EDNA NEGRON & OTHERS v. EDWARD E. GORDON

August 12, 1977

EDNA NEGRON & OTHERS
v.
EDWARD E. GORDON, TRUSTEE, & ANOTHER



Suffolk. Civil action commenced in the Housing Court of the City of Boston on December 4, 1975. The case was heard by Garrity, J., on a motion to dismiss. The Supreme Judicial Court granted a request for direct appellate review.

Hennessey, C.j., Kaplan, Wilkins, Liacos, & Abrams, JJ.

SYLLABUS BY THE COURT

Housing. Mortgage, Of real estate: mortgagee as owner. Statute, Construction. Landlord and Tenant, State sanitary code.

The opinion of the court was delivered by: Abrams

Discussion of the provisions of G. L. c. 111, §§ 127A-127N. [202-205]

A mortgagee of property is not a person who has "authority to decide whether to rehabilitate, or sell or otherwise dispose of the premises" within the meaning of G. L. c. 111, § 127N. [206-207]

The plaintiffs, tenants of Edward E. Gordon (Gordon), trustee of the King Realty Trust (King), brought an action against their landlord pursuant to G. L. c. 111, § 127H, and G. L. c. 186, § 14, in the Housing Court of the City of Boston. On or about December 4, 1975, and again on December 17, 1975, the Judge, having found violations of the State Sanitary Code, *fn1 ordered the defendant to provide heat and hot water to the premises of the plaintiffs.

On January 8, 1976, contempt proceedings were initiated against Gordon for failure to abide by the terms of the order. Gordon was adJudged to be in contempt and was again ordered to restore the heat and hot water.

On February 25, 1976, plaintiffs' motion to join South Boston Savings Bank (bank) as a party defendant and their motion to amend their complaint were both allowed. By their amendment, relying on G. L. c. 111, § 127N, the plaintiffs sought an order requiring the bank to remedy the defective conditions existing in the premises.

On March 24, 1976, the defendant bank filed a motion to dismiss, and, on May 5, 1976, the action was dismissed as against the bank. On June 10, 1976, the bank was enjoined from voluntarily transferring, assigning or conveying its mortgage interest pending our Disposition of this appeal. The plaintiffs were granted leave to appeal in forma pauperis.

Final judgment dismissing the action as to the bank was entered on August 17, 1976, and the plaintiffs thereafter duly noted their appeal. *fn2 We granted the plaintiffs' application for direct appellate review.

In ruling on the motion to dismiss, the Judge found as fact certain of the pertinent allegations in the plaintiffs' amended and supplemental complaint. We summarize the facts from the pleadings and the Conclusions of the Judge. The plaintiffs were tenants in the premises located at 911 Blue Hill Avenue, Dorchester. The defendant Gordon owned the property as trustee for King subject to a first mortgage held by the bank. The mortgage was on the statutory condition, G. L. c. 183, § 20, and, in the event of a breach of condition, the mortgagee had the statutory power of sale, G. L. c. 183, § 21. The defendant Gordon had failed to rectify sanitary code violations. The Judge concluded that Gordon was, in all probability, financially unable to rectify the situation. Although Gordon had violated the mortgage's statutory condition, the bank had not entered into possession of the premises pursuant to G. L. c. 183, § 21. The bank neither made entry to foreclose the mortgage under G. L. c. 244, § 1, nor had it commenced foreclosure proceedings under the power of sale as authorized by G. L. c. 244, § 14. After making these findings, the Judge determined that the bank did not fall within the ambit of G. L. c. 111, § 127N.

The question presented by this appeal is whether the defendant bank, as holder of a first mortgage is a corporation or other person which "has the authority to decide whether to rehabilitate, or sell or otherwise dispose of the premises" within the meaning of G. L. c. 111, § 127N. *fn3 We believe that mortgagees are not within the scope of § 127N. Therefore, we affirm the judgment of the Housing Court.

"When the meaning of any particular section or clause of a statute is questioned, it is proper, no doubt, to look into the other parts of the statute: otherwise the different sections of the same statute might be so construed as to be repugnant, and the intention of the legislature might be defeated. And if upon examination the general meaning and object of the statute should be found inconsistent with the literal import of any particular clause or section, such clause or section must, if possible, be construed according to the spirit of the act." Holbrook v. Holbrook, 1 Pick. ...


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