United States District Court, D. Massachusetts
ORDER ON MOTION TO DISMISS (DOC. NO. 29)
SOROKIN UNITED STATES DISTRICT JUDGE.
September 25, 2018, plaintiffs Barbara Craw and Joan
Shurtleff brought this action in Plymouth Superior Court on
behalf of themselves and other similarly situated current and
former residents of two manufactured housing communities.
Doc. No. 1-1 at 7, 12. The defendants removed the case to
this Court on October 15, 2018. Doc. No. 1. On October 31,
2018, the plaintiffs amended their complaint. Doc. No. 10.
The Amended Complaint alleges that the defendants unlawfully
refused to make necessary repairs to the infrastructure on
the homesites of the plaintiffs and the other putative class
members, resulting in damage to their homes and dangerous
conditions on their homesites. Id. ¶¶
7-12. On November 21, 2018, the defendants moved to dismiss
the Amended Complaint for failure to state a claim under
Fed.R.Civ.P. 12(b)(6). Doc. No. 29. The plaintiffs opposed.
Doc. No. 44. The Court held a hearing on the motion on
February 28, 2019. See Doc. No. 55. After the
hearing, plaintiffs and defendants each submitted a
supplemental brief at the Court's invitation. Doc. Nos.
57, 58. For the reasons set forth below, the Court DENIES the
defendants' motion to dismiss in its entirety.
Manufactured Housing in Massachusetts
manufactured housing is sometimes referred to as
“mobile homes, ” the latter term is
somewhat misleading. Mobile homes are largely immobile as a
practical matter, because the cost of moving one is often a
significant fraction of the value of the mobile home itself.
They are generally placed permanently in parks . . . A mobile
home owner typically rents a plot of land, called a
“pad, ” from the owner of a mobile home park. The
park owner provides private roads within the park, common
facilities such as washing machines or a swimming pool, and
often utilities. . . . When the mobile home owner wishes to
move, the mobile home is usually sold in place, and the
purchaser continues to rent the pad on which the mobile home
Yee v. City of Escondido, Cal., 503 U.S. 519, 523
(1992). As a result, the decisions of a manufactured housing
community's owner can have a significant impact not only
on residents' quality of life but also on the value of
their homes and their ability to resell them. Doc. No. 10
Massachusetts Manufactured Housing Act, the earliest version
of which was adopted in 1939, 1939 Mass. Acts 416, was passed
to recognize “that manufactured housing communities
provide a viable, affordable housing option to many elderly
persons and families of low and moderate income, who are
often lacking in resources and deserving of legal protection,
” Greenfield Country Estates Tenants Ass'n,
Inc. v. Deep, 666 N.E.2d 988, 990 (Mass. 1996). Its goal
was “to avoid discontinuances of manufactured housing
communities and to ensure that tenants of such communities
are not left at the peril of their landlords due to a
practical inability to relocate a manufactured housing
unit.” Id. at 992. The Act, which has been
amended several times since its passage, “establishes a
statutory scheme intended to protect tenants of manufactured
housing communities.” Greenfield, 666 N.E.2d
at 990; see also Mass. Gen. Laws ch. 140,
other things, the Act requires a community operator to obtain
a license from the city or town where the community is
located and to maintain the community free from unsanitary
conditions. Mass. Gen. Laws ch. 140, §§ 32A, 32B,
32C. The prohibition on “unsanitary condition[s]”
dates to the first version of the Act in 1939. See
1939 Mass. Acts 416. The Act also limits the ability of a
community operator to evict a tenant, specifying the only
permissible reasons for doing so. Mass. Gen. Laws ch. 140,
§ 32J. The Act requires a community operator to obtain
approval from the Attorney General before imposing community
rules, forbidding rules that are “unreasonable, unfair,
or unconscionable.” Id. § 32L.
similar goal of protecting state residents, at least as early
as 1965, Massachusetts adopted a statute requiring the
state's Department of Public Health to “adopt . . .
public health regulations to be known as the state sanitary
code, which . . . shall deal with matters affecting the
health and well-being of the public in the
commonwealth.” 1965 Mass. Acts 898. Pursuant to the
law, the Department of Public Health has adopted and
periodically revised a State Sanitary Code, now codified at
105 Mass. Code Regs. 410. At least as early as 1969, the
Sanitary Code has required owners of leased real property to
“install and maintain . . . structural elements”
of dwellings they own. Doc. No. 42-7 at 7. The 1969 Sanitary
Code defined an owner as “every person who . . . has
legal title to any dwelling or dwelling unit.”
Id. at 4. By 1977, the Department of Public Health
had expanded the definition of “owner” to include
the owner of a “mobile dwelling unit or parcel of land
. . . including a mobile home park.” Doc. No. 42-8 at
portions of the Sanitary Code are substantially unchanged
today. The current regulations provide that “[e]very
owner shall maintain the . . . structural elements of his
dwelling so that the dwelling . . . is rodent-proof,
watertight and free from chronic dampness, weathertight, in
good repair and in every way fit for the use intended.”
105 Mass. Code Regs. 410.500. “Owner means every person
who . . . has legal title to any dwelling, dwelling unit,
mobile dwelling unit, or parcel of land, vacant or otherwise,
including a mobile home park, ” or who “has care,
charge or control of” the same “in any capacity,
” while “[d]welling means every building or
shelter . . . used or intended for human habitation and every
other structure or condition located within the same lot line
whose existence causes or is likely to effect noncompliance
with the provisions of” the Sanitary Code. Id.
1974, Massachusetts Attorney General Robert H. Quinn adopted
regulations under the Massachusetts Consumer Protection Act
governing the relationship between landlords and tenants
generally-i.e., not limited to manufactured housing
communities-which remain substantially unchanged today.
Massachusetts Department of the Attorney General,
“Landlord-Tenant Relationship Regulations” (Sept.
6, 1974) (on file with the Attorney General's Office);
see also 940 Mass. Code Regs. 3.17. The regulations,
which remain unchanged in relevant part today, define unfair
and deceptive landlord practices in areas such as
maintenance, rental agreements, security deposits, and
1983, Massachusetts Attorney General Francis Bellotti issued
a document called the “Mobile Home Park Law
Guide” that described, among other things, those
regulations and their application to manufactured housing
communities. Massachusetts Attorney General's Office,
Public Protection Bureau (1983),
(hereinafter “1983 Guide”). Although the Guide
stated that its “purpose is to define the law as
clearly as possible, so that both residents and park owners
will become aware of their individual rights and their
responsibilities to each other, ” it also clarified
that it “is not the law, ” but rather
“a guide to the law prepared by the Attorney
General's Consumer Protection Division.”
Id. at 1-2.
Guide explained that the “Attorney General has
promulgated regulations governing landlord-resident
relationships, ” which “specifically pertain to
[manufactured homes], the lots they occupy and the park
grounds as well.” Id. at 15. Citing state
regulations and case law, the document further explained that
It is a
violation of law for the park owner to . . .
a.) Rent premises (i.e., a [manufactured home], the lot it
occupies, and/or the park grounds), which at the beginning of
the residency are unfit for human habitation, or contain a
defect which violates the law or poses a threat to the
resident's health, safety, or well-being. 940 CMR
3.17(1)(a). This means that at the inception of the rental
there are no latent, i. e. - undiscoverable but existing,
defects in facilities vital to the use of the premises for
residential purposes and that these essential
facilities will remain in a condition which makes the
property livable for the duration of the tenancy. [Bos.
Hous. Auth. v. Hemingway, 293 N.E.2d 831, 843 (Mass.
b.) Fail to maintain the premises in a condition fit for
human habitation or fail to substantially remedy the
conditions described in (a), above, after receiving written
notice that these conditions exist. 940 CMR 3.17[(1)](b). . .
f.) Fail to comply with the State Sanitary Code within a
reasonable time after receiving notice of a Code violation
from a resident or agency.
Id. at 15-16. The relevant provisions of the cited
regulations remain the same in all material ways today.
See 940 Code Mass. Regs. 3.01, 3.17. The 1983 Guide
also explained that, while “[c]ertain provisions of the
State Sanitary Code are directly applicable to [manufactured
homes] and others are applicable by analogy . . . there are
still some areas of uncertain application.” 1983 Guide
at 17. “The two major areas of concern explicitly
covered by the Code are utility and sewage services and
preservation of the park premises from generally unsanitary
1993, Massachusetts amended the Manufactured Housing Act to
authorize the state's Attorney General to
“promulgate such rules and regulations as he deems
necessary for the interpretation, implementation,
administration and enforcement” of the Act. Mass. Gen.
Laws ch. 140, § 32S; see also 1993 Mass. Acts
In 1996, the Attorney General adopted regulations that remain
the same in all material ways today. 798 Mass. Reg. 73 (Aug.
23, 1996); see also 940 Mass. Code Regs. 10.00.
regulations are of particular significance to the pending
complaint. First, the regulations make violations of various
other specified state statutes and regulations, including the
Sanitary Code, a violation of Chapter 93A, provided that the
violation concerns a manufactured home. Specifically, the
regulations provide that “[a]ny violation of any
applicable local, state or federal statute, regulation or
ordinance governing landlord-tenant relations (including, but
not limited to, M.G.L. c. 186, §§ 12 through 21,
M.G.L. c. 111, § 127A, 105 CMR 410.000, local ordinances
and rent control laws) with regard to manufactured housing
shall constitute a violation of” the Consumer
Protection Act, Mass. Gen. Laws ch. 93A. 940 Mass. Code Regs.
10.03(3). Next, the regulations also provide that a
manufactured housing community's “operator shall
not require any resident to make permanent improvements to
the manufactured home site, or the manufactured housing
community or any of its facilities, nor assess any separate
fee or charge for any such permanent improvements made by the
operator.” Id. 10.04(5)(f). Finally, the
regulations provide that a lease provision “which
releases or limits the operator's liability arising under
law or resulting from an act or omission of the
operator” is “void and unenforceable.”
Id. 10.03(9)(b). The regulations also address
community-homeowner lease provisions, certain required
disclosures, and a minimum term of five years. See
id. 10.03(4), (5).
August 2000, Massachusetts Attorney General Tom Reilly issued
a document called “The Attorney General's Guide to
Manufactured Housing Community Law.” Massachusetts
Attorney General's Office (2000),
https://archive.org/details/attorneygenera00mass; Doc. No.
42-9. The document explained that conditions in a
manufactured housing community are governed by each
community's rules, which “must comply with the
standards established under the [Manufactured Housing] Act
and the Regulations.” Doc. No. 42-9 at 7. The document
further explained that, in particular, it “is your
community owner/operator's responsibility to repave
driveways and sidewalks when necessary, as these are
permanent elements of your lot or the community.”
Id. The events alleged in the Amended Complaint
unfolded subject to the foregoing legal and regulatory
framework governing manufactured homes in Massachusetts.
Hometown America, LLC (“Hometown”) indirectly
owns and manages manufactured housing communities in several
states, including in Massachusetts. Doc. No. 10 ¶ 30.
Defendant Hometown Oakhill, LLC (“Hometown
Oakhill”), an affiliate of Hometown, owns the land on
which Oakhill, a manufactured housing community in Attleboro,
is located. Id. ¶¶ 7, 30-31. Defendant
Hometown America Management, LLC (“Hometown
Management”), also Hometown's affiliate, “has
represented itself to be the managing agent or beneficial
owner of Oakhill.” Id. ¶ 33. In January
2006, Hometown Oakhill, which at that point had existed for
less than four months, bought the land on which Oakhill now
sits from its former owner for $6.99 million. Id.
¶¶ 46-47. Hometown Oakhill then entered into a
management agreement with Hometown Management, obligating the
latter to operate Oakhill. Id. ¶ 49.
thereafter, plaintiff Barbara Craw began to lease Site 100 at
Oakhill and bought the manufactured home at that site.
Id. ¶ 51. During Craw's first year at
Oakhill, Site 100 routinely flooded during and after rain,
regularly covering the driveway and cement walkways built
into the site, often inundating the site's side yard, and
sometimes reaching the crawlspace under Craw's home.
Id. ¶ 53. The flooding created dangerous
conditions on the site, routinely covering the driveways and
walkways, requiring Craw and her infant son to cross
ankle-deep water to reach their home, and rotting out the
front step of Craw's porch. Id. ¶¶
56-57. Craw promptly complained about the flooding to Tammy
Feeney, Oakhill's community manager, who said the
flooding resulted from “anomalous weather
conditions.” Id. ¶ 54. However, the
flooding remained the same from year to year. Id.
the flooding at Craw's Oakhill homesite continued. In
November 2009, in response to Craw's continued complaints
about the flooding on Site 100, community manager Feeney
caused a channel drain and catch basin to be installed on or
near the site. Id. ¶ 58. Although the
improvements reduced the flooding, water continued to
inundate the driveway and cement walkways, which began to
crack and crumble. Id. ¶ 59. As a result, in
May 2010, Craw suggested to Feeney that the site's
permanent elements, such as the cement around Craw's home
or the driveway, needed to be re-graded or otherwise
improved. Id. ¶ 60. She also requested that
Feeney arrange for the cement walkways to be repaired.
Id. ¶ 61. Feeney told Craw that Oakhill was not
responsible for such improvements and repairs. Id.
response, Craw began withholding her home-site rent until
Oakhill made the repairs she had requested. Id. Craw
then received a letter from an attorney representing
Hometown, stating that her concerns had been caused by
anomalous weather, that Oakhill management had resolved
Craw's concerns, that Craw bore responsibility for
remedying any remaining concerns, and that Craw would be
evicted if she continued to withhold rent. Id.
¶ 64. Scared by the possibility of eviction, Craw
resuming paying rent to Hometown even though the water
problems at her site continued. Id. ¶¶
65-66. Thereafter, Craw continued raising her concerns with
Josephine Santa Fe, who replaced Feeney as Oakhill's
community manager, and with Kyle Howieson, Hometown's
regional manager. Id. ¶ 69.
November 2011, Defendants Hometown Oak Point I, LLC and
Hometown Oak Point II, LLC (collectively “Hometown Oak
Point”), also affiliates of Hometown, bought the land
on which Oak Point, a manufactured housing community in
Middleborough, is located. Id. ¶¶ 7, 74-
75. Hometown Oak Point, which at that point had existed for
less than one month, bought Oak Point from its former owners
for more than $55 million. Id. ¶¶ 74-75.
Hometown Oak Point then entered into a management agreement
with Hometown Management, obligating the latter to operate
Oak Point. Id. ¶ 77. Hometown Management
“has represented itself to be the managing agent or
beneficial owner of . . . Oak Point.” Id.
time of Hometown Oak Point's purchase of Oak Point,
plaintiff Joan Shurtleff already lived at 3105 Fox Run in Oak
Point, which she had begun renting no later than 2008.
Id. ¶¶ 30, 95-96. For years, Shurtleff has
complained to Oak Point management about water that routinely
accumulates around her home after rain, but management has
not remedied the problem. Id. ¶ 97. Although
management initially made minor repairs, it eventually began
telling Shurtleff that repairs were her responsibility.
Id. ¶¶ 98-99.
later than 2012, Fred Taylor, Oak Point's then-general
manager, and Peter Conant, its community manager, were aware
of the water drainage problems at various Oak Point
residents' homesites caused by improperly maintained
permanent improvements at those sites. Id. ¶
79. At residents' request, Taylor or Oak Point's
office manager Debbera Silva would agree to make minor
repairs to homesites, such as the installation of an extra
drain, to ameliorate these concerns. Id. ¶ 81.
However, by 2015, Oak Point management, including its general
manager Doreen Lang, began telling residents that the
flooding and necessary repairs were residents'
responsibility. Id. ¶ 83. Management also told
residents they were responsible for other homesite
infrastructure such as walkways, driveways, and underground
sprinkler systems. Id. ¶ 84.
November 2017, Massachusetts Attorney General Maura Healey
issued a revised version of “The Attorney General's
Guide to Manufactured Housing Community
Law.”Although the underlying law had not
changed, the revised version of the guide included a somewhat
different statement about community owners' maintenance
responsibilities than those in the earlier Guides. It states
that it “is your community owner/operator's
responsibility to maintain, repair, and replace the cement
slab under your home as well as any lamp posts on your
homesite and repave driveways and sidewalks when necessary,
as well as any other permanent elements of your lot or the
community.” Id. at 14.
August 2018, after a series of rent increases, Craw asked to
review the five-year lease agreement that Oakhill, at that
point, offered to new tenants. Id. ¶ 71. The
template lease agreement provided that “improvements
located on the homesite at the initiation of this Agreement
such as concrete surfaces, if any, trees and other fixtures
are to be maintained by RESIDENT during the period of
RESIDENT's tenancy.” Id. ¶ 73.
April 30, 2018, after the U.S. Department of Housing and
Urban Development (“HUD”) opened an inquiry into
conditions at Oak Point because of residents' complaints,
Conant told a meeting of the Town of Middleborough's
Board of Selectmen that Hometown would take responsibility
for remediating the water accumulation problem at Oak Point
homesites. Id. ¶¶ 85-87. However, after
HUD announced that its inquiry was limited to the
approximately 11 percent of Oak Point homesites installed
after 2011, Hometown retracted Conant's statement,
claiming that it was not responsible for infrastructure at
the other 89 percent of homesites because it was installed
before Hometown owned Oak Point. Id. ¶ 88.
Howieson repeated that denial of responsibility at a July 23,
2018, meeting of the Board of Selectmen, specifically
claiming that the Manufactured Housing Act does not assign
responsibility for maintenance of a homesite's pad to a
community's owner. Id. ¶ 89. He further
stated that the Attorney General's Guide to Manufactured
Housing Community Law “isn't the law” but
rather is just “someone's interpretation of the
law.” Id. ...