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Mac's Homeowners Association v. Gebo

Appeals Court of Massachusetts, Essex

November 9, 2017

JAMES GEBO & others. [2]

          Heard: February 2, 2017.

         Civil actions commenced in the Northeast Division of the Housing Court Department on June 24 and July 1, 2014.

         After consolidation, a motion to dismiss was heard by Timothy F. Sullivan, J., and entry of separate and final judgment was ordered by him.

          Stephen A. Wasserman for the plaintiffs.

          Joseph E. Kelleher, III, for the defendants.

          Present: Green, Meade, & Agnes, JJ.

          AGNES, J.

          The plaintiffs, cooperative housing associations whose members (hereinafter homeowners) own mobile homes located in Mac's Trailer Park (Mac's Park) in Peabody, initiated this action claiming that the defendants (hereinafter developers) committed unfair or deceptive acts or practices in violation of G. L. c. 93A, § 2, when they appeared unannounced and declared that they were purchasing Mac's Park and that the homeowners would have to move or vacate. The developers' actions are alleged to have been premature, given that the owner of Mac's Park failed to provide the homeowners with the statutorily mandated notice of sale and opportunity to exercise a right of first refusal, see G. L. c. 140, § 32R, and unlawful, in that, by law, the homeowners' tenancies could only be terminated for certain specific reasons, none of which were applicable, see G. L. c. 140, § 32J. As a result, the plaintiffs allege that the homeowners put their lives "on hold, " were unable to sell or lease their mobile homes, and suffered extreme emotional distress. Acting on a motion to dismiss filed by the developers, however, a Housing Court judge held that the plaintiffs failed to state a claim upon which relief could be granted. See Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). This appeal followed, and upon the required de novo review, we conclude that the factual allegations in the plaintiffs' complaint are sufficient to plausibly suggest an entitlement to relief under G. L. c. 93A. See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008).


          The following facts are derived from the plaintiffs' verified complaint. Mac's Park is a "manufactured housing community, " see G. L. c. 140, § 32F, as appearing in St. 1991, c. 481, § 19, owned by Matthew Lowe. The park consists of twenty-two numbered lots for "manufactured homes, " see G. L. c. 140, § 32Q, as appearing in St. 1991, c. 481, § 19, more commonly referred to as mobile homes. As of the time the complaint was filed, twenty of the units were occupied. Lowe owned ten of the twenty occupied units, and the other ten occupied units were owned by third parties who leased the lots from Lowe. Plaintiff Newbury Cooperative Corporation (NCC) is a cooperative housing corporation organized under G. L. c. 156B and c. 157B; all of its members are owners of mobile homes located at Mac's Park. Plaintiff Mac's Homeowners Association (MHA), in turn, is an association consisting of owners who actually reside in their mobile homes at Mac's Park. Members of both MHA and NCC represent a majority of the mobile home owners resident in Mac's Park. Lowe does not reside at the park. Nor is he a member of either NCC or MHA.

         In early 2013, Lowe "advertised, listed or gave public notice" that Mac's Park was for sale. In accordance with G. L. c. 140, § 32R, as appearing in St. 1993, c. 145, § 19, therefore, he was required, within fourteen days, to give notice to "each [park] resident" of his intention to sell. This he failed to do. And, according to the plaintiffs, his failure to do so, by law, constituted an unfair or deceptive act or practice under G. L. c. 93A, § 2. See G. L. c. 140, § 32L(7) (failure to comply with any of the manufactured housing community provisions set forth in G. L. c. 140, §§ 32A to 32S, constitutes a c. 93A violation); 940 Code Mass. Regs. § 10.02(3) (1996) (same); 940 Code Mass. Regs. § 10.09(1) (a) (1996) (failure to provide the notice required under G. L. c. 140, § 32R[a.], is a c. 93A violation) .

         Subsequently, in or about August, 2013, Lowe entered into an agreement to sell Mac's Park to the defendant developers, James Gebo, Norman Lee, and Greystone Properties, LLC. The developers planned to expand the manufactured housing community, remove all of the existing mobile homes, and replace them with thirty-three new units that they would own and rent out to third parties. Under the agreement with Lowe, the developers were allowed to appear before various public boards and agencies to seek necessary approvals for the project. This fact was not disclosed to the homeowners.

         In early February, 2014, the plaintiffs learned of the sale when the developers appeared unannounced at Mac's Park and went from door to door with blueprints for the proposed project. The message the developers conveyed during that visit was that the homeowners would have to move out to make way for the new units.

          The developers further warned the homeowners "not [to] take this . . . lightly" and "not to stick your head in the sand." As alleged in the plaintiffs' complaint, the visit was emotionally upsetting to the homeowners, at least one of whom ...

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