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CMJ Management Co. v. Wilkerson

Appeals Court of Massachusetts, Suffolk

March 31, 2017

CMJ MANAGEMENT COMPANY[1]
v.
PATRICIA WILKERSON.

          Heard: December 1, 2016.

         Summary process. Complaint filed in the Boston Division of the Housing Court Department on September 15, 2014.

         The case was heard by MaryLou Muirhead, J.

          Stephanie Schuyler (Hoang Nguyen also present) for the tenant.

          John G. Hofmann for the landlord.

          Present: Cypher, Maldonado, & Blake, JJ.

          CYPHER, J.

         Patricia Wilkerson appeals from a Housing Court judgment, entered following a bench trial, that awarded the plaintiff possession of an apartment in which Wilkerson resided with her three grandchildren. Wilkerson argues that the judge erred in concluding that the conduct of her juvenile grandson constituted criminal activity that materially breached her lease. In addition, Wilkerson argues that the judge erred by striking her request for a jury trial after she failed to comply with a Housing Court pretrial conference order requiring the submission of a pretrial conference memorandum.

         Background.

         We summarize the facts from the judge's findings, reserving some facts for later discussion.[2] Wilkerson is a resident at the Harbor Point Apartments in the Dorchester section of Boston (Harbor Point). CMJ Management Company (CMJ) is Harbor Point's managing agent. Harbor Point is a housing development combining market-rate and subsidized units. Of the 1, 283 units, 400 are subsidized pursuant to the Section 8 Housing Assistance Program of the United States Housing Act, 42 U.S.C. §§ 1437 et seq. (Section 8 program). Wilkerson had custody of her fourteen year old grandson, who, along with his two adult brothers, were authorized occupants of her apartment. In July of 2014, while playing with other children in one of the common areas of the apartment complex, the juvenile grandson fired a BB gun multiple times, injuring two juvenile residents. Later that day, a Harbor Point security guard went to Wilkerson's apartment, spoke with Wilkerson and the juvenile about the incident, and confiscated the BB gun. The parents of the injured children apparently did not pursue criminal charges. The following week Wilkerson received a notice to quit, terminating her lease.

         Pursuant to the Section 8 program, Wilkerson's tenancy is subsidized by the United States Department of Housing and Urban Development (HUD). As such, the lease she signed is a "model lease" provided by HUD.[3] Paragraph 13(c) of Wilkerson's lease provides that Wilkerson "agrees not to . . . engage in or permit unlawful activities in the unit, in the common areas or on the project grounds." Subparagraphs (c) and (d) of paragraph 23 of the lease provide in relevant part:

"c. The Landlord may terminate [the lease] only for the following reasons:
"1. the Tenant's material noncompliance with the terms of this Agreement;
". . .
"6. criminal activity by a tenant, any member of the tenant's household, a guest or another person under the tenant's control;
"(a) that threatens the health, safety, or right to peaceful enjoyment of the premises by other residents . . .; [4]
" • • •
"d. . . . The term material noncompliance with the lease includes:
"(1) one or more substantial violations of the lease[.]"

         Discussion.

         1. Crimi ...


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