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Cambridge Street Realty, LLC v. Stewart

Supreme Judicial Court of Massachusetts, Suffolk

December 20, 2018

CAMBRIDGE STREET REALTY, LLC
v.
MELINDA STEWART and a consolidated case.

          Heard: September 7, 2018.

         Summary Process. Complaint filed in the Boston Division of the Housing Court Department on October 11, 2016. The case was heard by Jeffrey M. Winik, J.

         The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

         Civil action commenced in the Supreme Judicial Court for the county of Suffolk on June 25, 2018. The case was reported by Gaziano, J.

          Joshua J. Bone for the tenant.

          Eleftherios S. Papadopoulos for the landlord.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          KAFKER, J.

         Melinda Stewart (tenant), a recipient of a United States Department of Housing and Urban Development (HUD) Housing Choice Voucher (Section 8 voucher), fell behind on her rent, and her landlord, Cambridge Street Realty, LLC (landlord), served her with a notice of termination of tenancy (notice to quit) before bringing a summary process eviction action against her in the Boston Division of the Housing Court Department.[2] Following a trial that, without advance notice, occurred on the same day as a hearing on the tenant's motion to vacate a default judgment, the landlord received a judgment of execution and forty-four dollars in back rent. Although the case was initially stayed after the tenant posted an appeals bond in the amount of forty-four dollars, the Housing Court judge nonetheless allowed the execution to issue on the landlord's representation that the tenant had violated a nonfinancial condition of the bond. Execution was then again stayed after the tenant filed a G. L. c. 211, § 3, petition with a single justice of this court.

         This case presents a number of unresolved questions of law: whether (1) termination of a residential tenancy by a legally adequate notice to quit is necessary to confer subject matter jurisdiction on the Housing Court; (2) the judge erred or otherwise abused his discretion when he failed to provide advance notice that he might conduct trial on the same day as a motion hearing on a default judgment and denied a continuance requested under Housing Court Standing Order 1-01 (2001) to a self-represented litigant represented by a limited assistance volunteer attorney who was willing to enter a full appearance; and (3) a judge has the authority to impose a nonfinancial condition on an appeals bond issued under G. L. c. 239, § 5, with respect to an appeal from a judgment for possession of land or tenements.

         We hold that a legally effective notice to quit is a condition precedent to a summary process action and part of the landlord's prima facie case but is not jurisdictional. We further explain that the notice to quit was not defective in the instant case. We nonetheless vacate the judgment and remand for a new trial because we hold that the Housing Court judge abused his discretion when, without providing advance notice that he would conduct trial on the same day as the scheduled hearing on the motion to vacate the default, he denied the volunteer attorney's request for a continuance provided by Housing Court Standing Order 1-01. In addition, we hold that the judge lacked statutory authority to impose a nonfinancial condition on the appeals bond, and we therefore reverse the order of execution arising from the tenant's alleged noncompliance with the appeals bond.

         1. Background.

         a. Standard of review.

         When reviewing the decision of a trial judge in a summary process action, "we accept [the judge's] findings of fact as true unless they are clearly erroneous," but "we scrutinize without deference the legal standard which the judge applied to the facts" (citation omitted). Andover Hous. Auth. v. Shkolnik, 443 Mass. 300, 306 (2005) .

         b. Facts and procedural history.

         The facts, according to the undisputed facts in the record, the parties' joint statement of facts, and the judge's decision below, are as follows. In the summer of 2010, the tenant began to lease an apartment from the landlord. Due to her low income, the tenant qualified to receive a Section 8 voucher administered by the Boston Housing Authority (BHA).[3] The tenant and the landlord entered into a BHA-provided lease (model lease) and a HUD-approved addendum (HUD addendum). The landlord agreed in the HUD addendum that it would "only terminate the tenancy in accordance with the lease and HUD requirements." These requirements included specific notice provisions. In particular, per the HUD addendum, the landlord had to provide "the tenant a notice that specifies the grounds for termination of tenancy." Additionally, the model lease stated that the landlord "shall" include specific termination language in its termination notice.[4]

         The tenant's lease began to run in August 2010, and provided that, after a year, it would automatically renew in successive month-to-month terms, unless the landlord terminated the lease for one of several permissible reasons. The tenant initially lived in the apartment with her son until he was killed in a homicide in 2013. The son's death reduced the income available to the tenant. Despite receiving financial support from a rental assistance organization, the tenant began to fall behind on her share of the monthly rent each month starting in February 2015.[5] The landlord sent the tenant numerous "rent reminders" stating the amount of overdue rent each month.

         In August 2016, the landlord began the process of evicting the tenant. Through its counsel, the landlord had a constable serve the tenant with a notice to quit on August 31, 2016, informing the tenant that it was terminating her lease for serious and repeated lease violations, specifically, paying her rent after the first of the month, as well as improperly storing items in the building's common areas. The notice to quit demanded that the tenant vacate the premises within thirty days or face eviction.

         After the tenant declined to move out by September 30, 2016, the landlord served the tenant with a summary process summons and complaint that set a hearing date of October 20, 2016. The landlord received a default judgment when the tenant did not appear for trial on that date.[6] The same day, however, the tenant filed a motion to vacate the default judgment on the advice of a clerk at the Housing Court. The court sent the parties a "Notice of Motion Hearing" informing them that the tenant's motion to vacate the default judgment would be heard on November 10, 2016, which it was. At the motion hearing, the landlord was represented by counsel, while the tenant engaged a volunteer attorney participating in the Housing Court's "lawyer for a day program" (LDP attorney) on a limited assistance basis to represent her in settlement talks and on the motion.[7] The court granted the motion to vacate the default and announced that it would conduct a trial on the same day, which it did.

         Shortly after the trial commenced, the LDP attorney who had been providing limited representation to the tenant in settlement talks and on the motion to vacate told the judge that she would be willing to enter a full appearance and requested a continuance pursuant to Housing Court Standing Order 1-01.[8] That standing order provides that if an LDP attorney assisting a pro se litigant in mediation does not enter an appearance but assists the litigant in preparing a motion for a continuance, the "motion shall be allowed if good cause is shown," while if the LDP attorney does enter an appearance, "the litigant shall be entitled to a two (2) week continuance of trial." Housing Court Standing Order 1-01(5). After the LDP attorney's motion, the judge declared that, absent a settlement, "the trial's going forward today." When no settlement was reached, the LDP attorney withdrew her motion for a continuance and submitted her withdrawal of limited appearance, and the tenant went through the trial self-represented.

         Judgment entered for the landlord on November 15, 2016. In his written decision, the Housing Court judge held that the landlord had not proved that the tenant committed a lease violation by improperly storing her personal property. With respect to the late payment of rent, the judge found that the outstanding balances due each month were not large, and that the total amount of the rent arrearage was modest. The judge nonetheless held that the tenant's late payments constituted a serious and repeated lease violation that entitled the landlord to recover possession of the premises. The judge ordered execution and damages in the amount of the outstanding rent, forty-four dollars.

         The tenant timely appealed from the judgment and filed a motion to waive the statutorily required appeals bond. The judge subsequently held a hearing on the motion to waive the bond at which the landlord was represented by counsel and the tenant was self-represented. The judge issued an "appeal bond order" that declined to waive the bond and ordered it set at $234.51, the judgment amount plus certain costs and fees, which the tenant was to post or have her appeal dismissed. The order also stated that "[a]s a further condition of the bond" the tenant had to pay $332 in monthly use and occupancy to the landlord during the pendency of the appeal, provide the landlord with a key to her apartment, and allow the landlord access to perform repairs on twenty-four hours' advance written notice. The appeal bond order stated that failure to comply with these conditions would entitle the landlord to file a motion to dismiss the appeal. The tenant appealed from the denial of her motion to waive the bond and the amount of the bond, and a single justice of the Appeals Court affirmed the order, except for reducing the amount of the bond to forty-four dollars, which the tenant posted.

         The appeal entered in the Appeals Court in July 2017, and we transferred the case to this court on our own motion in November 2017. The landlord subsequently filed two motions to dismiss the appeal for failure to comply with conditions of the appeals bond.[9] The first of these motions, concerning the tenant's payment of use and occupancy, was denied by the Housing Court judge. The second motion, based on the tenant's alleged refusal to allow the landlord access, was likewise denied by a different judge. Despite denying the motion, however, the judge's order stated that execution would issue if the landlord submitted affidavits averring that the tenant had not permitted the landlord entry on June 15, 2018, to adjust the water pressure.

         On June 18, 2018, the landlord submitted two affidavits from its counsel and a contractor alleging that the tenant had interfered with their diagnostic test on the water pressure in her bathroom sink. Execution issued, a notice of levy was set, and the tenant's application to the Housing Court for a temporary restraining order was denied. On June 25, the day before the levy, the tenant filed her G. L. c. 211, § 3, petition before a single justice of this court, seeking a stay of execution. The single ...


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