Superior Court of Massachusetts, Suffolk, Business Litigation Session
Adrienne Gowen, Through her Legal Guardian Scott Gowen and on Behalf of Herself and all Others Similarly Situated
Benchmark Senior Living, LLC
May 8, 2017
MEMORANDUM AND ORDER DENYING CROSS MOTIONS TO
Kenneth W. Salinger, Justice.
Gowen lives in an assisted living facility that is now
managed by Benchmark Senior Living, LLC. Gowen claims that
Benchmark's predecessor assessed and collected some
unlawful charges when Gowen first moved in. Benchmark, in
turn, claims that Gowen has failed to pay what she owes for
living in the Benchmark facility and receiving
assisted-living services from Benchmark.
alleges that Benchmark's predecessor violated
Massachusetts residential landlord/tenant law in two ways: by
charging her a $2, 500 " community fee" at the
inception of her lease even though such a fee is not
authorized by G.L.c. 186, § 15B(1)(b); and by charging
$5, 500 for last month's rent that in reality was a
security deposit, and not complying with the legal
requirements for assessing a security deposit (such as
holding it in a separate interest-bearing account and paying
Gowen interest on her deposit each year). Gowen alleges that
Benchmark is liable for prior and ongoing misconduct with
respect to each of these two charges. She asserts claims for
violations of G.L.c. 186, § 15B, and G.L.c. 93A and for
negligent misrepresentation, intentional fraud, and unjust
alleges that Gowen and her guardian have failed to pay what
they owe for Gowen's residency and the services she has
been receiving at the facility. Benchmark asserts
counterclaims for breach of contract and unjust enrichment.
sides have moved to dismiss all claims and counterclaims
against them under Mass.R.Civ.P. 12(b)(6). The Court will
allow Benchmark's motion in part with respect to
Gowen's claim under G.L.c. 93A concerning the "
community fee" and with respect to all of her claims for
negligent misrepresentation and intentional fraud. It will
deny the rest of Benchmark's motion. It will also deny
Gowen's motion to dismiss the counterclaims against her.
survive a motion to dismiss under Rule 12(b)(6), a complaint
must allege facts that, if true, would " plausibly
suggest[ ] . . . an entitlement to relief." Lopez v.
Commonwealth, 463 Mass. 696, 701, 978 N.E.2d 67 (2012),
quoting Iannacchino v. Ford Motor Co., 451 Mass.
623, 636, 888 N.E.2d 879 (2008), and Bell A. Corp. v.
Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007). For the purpose of deciding the pending motions
to dismiss, the Court must assume that the factual
allegations in the complaint and any reasonable inferences
that may be drawn in Plaintiffs' favor from the facts
alleged are true. See Golchin v. Liberty Mut. Ins.
Co., 460 Mass. 222, 223, 950 N.E.2d 853 (2011). In so
doing, however, it must " look beyond the conclusory
allegations in the complaint and focus on whether the factual
allegations plausibly suggest an entitlement to relief."
Maling v. Finnegan, Henderson, Farabow, Garrett &
Dunner, LLP, 473 Mass. 336, 339, 42 N.E.3d 199 (2015),
quoting Curtis v. Herb Chambers I-95, Inc., 458
Mass. 674, 676, 940 N.E.2d 413 (2011).
Claims Against Benchmark
Community Fee Claims
G.L.c. 186, § 15B
states a viable claim in Count I that it was illegal for
Benchmark's predecessor to make Gowen pay a $2, 500
" community fee" and that it is therefore illegal
for Benchmark to retain that community fee. Chapter 186
governs the renting of residential living space. It provides
in relevant part that " no lessor may require a tenant
or prospective tenant, " at or before commencement of a
residential tenancy, " to pay any amount in excess
of" first and last months' rent, a security deposit
equal to first month's rent, and a charge for the cost of
installing a new lock and providing a key. See G.L.c. 186,
assertion that assisted living facilities are not subject to
c. 186, § 15B, because they are regulated by the
Executive Office of Elder Affairs under G.L.c. 19D is without
merit. Assisted living facilities provide their residents
with a combination of a place to live and an array of
supportive services. The " Residence and Service
Agreement" that Gowen says she executed specifies that
Gowen is entitled to receive not only living accommodations
but also personal assistance and care (including assistance
with bathing and grooming), housekeeping services, monitoring
of her health needs, and social and recreational activities.
The additional services beyond a mere residential tenancy are
governed by c. 19D. But nothing in that statute supersedes,
either expressly or by necessary implication, the legal
protections that § 15B provides to all residential
tenants in Massachusetts.
Nothing in c. 19D expressly exempts assisted living
facilities from the requirements imposed by c. 186. Although
the Legislature expressly exempted such facilities from
having to comply with certain statutes that regulate health
care facilities and from any zoning requirement that cluster
developments obtain a special permit, it did not exempt such
facilities from the fee limitations and security deposit
requirements that apply to all residential tenancies. See.
G.L.c. 19D, § 18. The Court may not " read into the
statute a provision which the Legislature did not see fit to
put there, whether the omission came from inadvertence or of
set purpose." Provencal v. Commonwealth Health Ins.
Connector Auth., 456 Mass. 506, 516, 924 N.E.2d 689
(2010), quoting General Elec. Co. v. Department of Envtl.
Protection, 429 Mass. 798, 803, 711 N.E.2d 589 (1999).
does c. 19D implicitly supersede c. 186. To the contrary, the
Legislature directed that assisted living facilities "
shall meet the requirements of all applicable federal and
state laws and regulations[.]" G.L.c. 19D, § 16.
This makes clear that c. 19D is not intended to be an
exhaustive regulatory scheme that governs all aspects of
assisted living operations. And it also makes clear that
Benchmark must comply with all laws that govern residential
tenancies to the extent they apply to its facility.
Assisted living facilities can easily comply with both
statutory schemes, providing supportive services in accord
with c. 19D to a resident whose tenancy is also governed by
§ 15B. Courts must therefore construe and apply these
two statutes in a manner that gives " meaning and
purpose to both . . . 'so that the policies underlying
both may be honored.'" Alliance to Protect
Nantucket Sound, Inc. v. Energy Facilities Siting Bd.,