Guest Blog Post: 2017 Eviction Appeal Recap
The Massachusetts Landlord Tenant Blog is pleased to have Attorney Joseph N. Schneiderman guest blog on 2017’s major eviction appeal decisions . Attorney Schneiderman is an appellate attorney licensed in Massachusetts and Connecticut and may be contacted at firstname.lastname@example.org.
The year 2017 was a busy time in the realm of the law of summary process. Beyond the expansion of the Housing Court, the Supreme Judicial Court and the Appeals Court have heard and issued significant eviction appeal decisions that landlord-tenant and Housing Court practitioners should be familiar with.
Summary Process and Harassment Prevention Orders
First, in C.E.R. v. P.C., 91 Mass. App. Ct. 124 (2017), the Appeals Court emphatically held that harassment prevention orders under G.L. c.258E could not become functional shortcuts or substitutes for summary process. The facts do not flatter the defendants; they were two roommates renting a room from the plaintiff, who was about to sell the home. Suffice it to say that the roommates engaged in boorish conduct involving sex, drugs, and rock and roll. The situation eventually boiled over to the point of the plaintiff obtaining an ex parte harassment prevention order in the Ipswich District Court. The judge later extended it for one year, effectively forcing the defendants to leave the home.
Although the Appeals Court vacated the orders for insufficient evidence of harassment, the Appeals Court also emphasized that such orders could not be “used as a short-cut for evicted tenants without following summary process procedures.” 91 Mass. App. Ct. at 132. More particularly, the plaintiff repeatedly asserted that she wanted the orders to “induce the defendants to leave without interfering with the rental or sale of the property.” The police who responded in turn suggested she obtain a lawyer and during the proceedings, “the defendants had already begun to move out.” The trial judge also hinted that the plaintiff was attempting to avoid summary process-echoing a similar past case.
Practitioners and judges alike should also be aware of how landlords may attempt to employ harassment prevention orders as functional summary process substitutes. Tenant bad behavior should not be condoned. But summary process is the means to redress it-not Chapter 258E. If you have questions, check the dockets in the District Court as defendants have a right to obtain the orders, even though portions of the orders are confidential. G.L. c.258E, §10. If there’s pushback from a Clerk, move for relief from impoundment.
Moreover, evidence that there was no reasonable basis for a harassment prevention order may defeat an Anti-SLAPP (Strategic Litigation Against Public Participation, think a Donald Trump suing a little guy just for the sake of suing him) motion. Compare Van Liew v. Stansfeld, 474 Mass. 31 (2016), citing G.L. c.231, §59H. Even with changes in Anti-SLAPP this year, an unjustified harassment prevention order or Anti-SLAPP order may constitute retaliatory conduct to trigger treble damages under c.186, §14. But those questions are for another day. For now, be mindful of this possibility.
Termination of a Section 8 Lease, Right to a Jury Trial in an Eviction Case
In CMJ Management v. Wilkerson, 91 Mass. App. Ct. 276 (2017), the Appeals Court held that a tenant’s child’s criminal conduct justified termination of a Section 8 lease-but that the same tenant had been unlawfully deprived of her right to a jury trial. The tenant had custody of her fourteen year old grandson, who shot and fired a BB gun that injured two fellow juveniles. Although no delinquency charges followed, the eviction occurred.
The Appeals Court rejected the tenant’s argument that the juvenile’s conduct did not constitute criminal activity. Admittedly, the juvenile’s conduct violated a statute that only provided for a fine. However, the lease unambiguously forbade criminal activity by any tenant, member of a tenant’s household and threatened the well being of fellow tenants. There was no distinction between juveniles and adults in the lease. Thus, termination was proper.
Although the Appeals Court’s analysis is literally correct, Massachusetts law has always treated juveniles charged with crime as different in kind from adult offenders. Indeed, “as far as practicable [juveniles charged with crimes ] shall be treated, not as criminals, but as children in need of aid, encouragement and guidance.” G.L. c.119, §53.
Practically speaking, Juvenile Court judges have broad flexibility to deal with juveniles facing delinquency charges to further their best interests. The question for more than 100 years has always been: “What shall be done with this child?” not, how do we punish and deter this child? Indeed, not only was there was no guarantee that a complaint would issue against a juvenile, but if a complaint had issued, the judge could have dismissed the complaint before arraignment-which would mean that no CARI record would exist Compare Commonwealth v. Humberto H., a juvenile, 466 Mass. 562 (2013).
To be certain, summary process and delinquency are different proceedings in kind. However, to deprive a juvenile of his housing, housing he very likely has no control over and must rely on an adult to obtain, is a sufficiently adverse collateral consequence that the consequence effectively defies the command not to treat him as a criminal. This is curiously absent from the Appeals Court’s analysis. This issue also underpinned an ultimately unsuccessful application for further appellate review by the Supreme Judicial Court. See Docket No. FAR-25267.
Practitioners who have clients with family members facing delinquency complaints should keep abreast of this issue. This collateral consequence is substantial and potentially irrationally treats the juvenile as a criminal. Whether or not Section 8 pre-empts G.L. c.119, §53 (or conversely, that applying Section 8 to a child within the ambit of G.L. c.119, §53 violates the 10th Amendment as unconstitutional strongarming) is a thorny and novel issue-for another day. Compare Boston Housing Authority v. Garcia, 449 Mass. 727 (2007).
On the jury trial issue, the Appeals Court held that the judge’s action striking the tenant’s jury claim amounted to disproportionate sanction. The tenant answered by asserting a jury claim but did not file a pre-trial memorandum to press her claim although the Landlord had-and indeed, the Landlord proposed instructions. The tenant admitted that she did not understand the pre-trial memorandum. The judge replied, “I can’t let you go forward …without a pre-trial memorandum.” 91 Mass. App. Ct. at 281-282.
The Appeals Court held that the tenant’s answer sufficed to timely demand and assert her jury claim. Two factors mitigated against implying that the tenant waived the jury trial. First, Housing Court Standing Order No. 1-04 specifically imbued judges with power to allow tardy motions and other pleadings since many parties were self-represented. Second, Art. 15 of the Massachusetts Declaration of Rights specifically guaranteed a right to a jury trial in eviction trials. 91 Mass. App. Ct. at 284-285, citing New Bedford Housing Authority v. Olan, 435 Mass. 364, 370 (2001).
A judge should therefore approach striking a jury demand cautiously. Although the tenant had notice of the possibility of striking the demand as a sanction, the judge abused her discretion by striking the demand. Indeed, the tenant attempted to understand the memorandum and striking the demand would not serve as a deterrent sanction.
What’s the take-away? If you represent someone who was self-represented, avail yourself not only of Standing Order 1-04-and Mass. R. Civ. Pro. 15 (to amend or conform pleadings.) Indeed, Rule 15 favors granting amendments-there needs to be prejudice to overcome that presumption. Dockets and court files can be messy-indeed, self-represented litigants may try to litigate by paper deluge. These rules are a powerful solvent for counsel to clean them up. If there’s a question about a jury trial, make sure it’s in the answer-and emphasize that striking a jury demand should be a last resort because of the constitutional and statutory implications. And, cite this case!
Waiver of a Jury Trial in an Eviction Case
Cort v. Majors, 92 Mass. App. Ct. 151 (2017) followed Wilkerson. The case was a typical summary process case; tenant and landlord were self-represented, tenant stopped paying rent, landlord sought eviction, tenant counterclaimed. After the landlord’s testimony and during his own testimony, the tenant said, “I’d like a jury.” The judge responded that the tenant waived that right, to the tenant’s surprise. “You didn’t tell me that.” 92 Mass. App. Ct. at 152. The trial concluded in the landlord’s favor. The question on appeal was whether the tenant had indeed waived his jury trial.
The Appeals Court held that he had not. The Appeals Court recalled that generally, Housing Court trials were bench trials unless constitutionally required. Article 15 of the Massachusetts Declaration of Rights guaranteed a jury trial, Mass. R. Civ. Pro. 38(a) incorporated and implemented that right, and Uniform Summary Process Rule 8 implemented that right in summary process trials. Mass. R. Civ. Pro. 39 in turn only provided for a waiver of a jury trial if there was a written or oral stipulation. Because the tenant demanded a jury trial in his answer, the issue was whether the tenant executed a valid oral stipulation.
The Appeals Court held he had not. Although the tenant answered ready for trial, this response to the judge was not a waiver of his right to a jury trial. Nor was there any suggestion that the tenant authorized the judge “to decide or knowingly relinquished his right to a jury trial.” Rather, under Rules 38 and 39, if there is a valid jury demand, a judge had a duty to “affirmatively inquire of the parties, before any witness is sworn, whether the case will proceed with or without a jury [this was not…] satisfied by commencing a bench trial and awaiting an objection by a party.” The Appeals Court recognized that many self-represented litigants appeared in the Housing Court. However, Rules 38 and 39 meant what they said-and a judge could still explain the differences to a party.
The two cases above represent robust reinforcement of the rights to a jury trial. The Appeals Court recognize the competing demands on Housing Court judges to, on the one hand, maintain efficient proceedings but also respect the rights of tenants-who are often self-represented and ill-suited to understand assert them. Only the clearest and most unequivocal conduct will amount to a waiver of the jury trial right. Like in the criminal context, judges must engage with tenants to ensure that they are knowingly and clearly and unambiguously waiving their jury trial rights. The Appeals Court also recognizes that Housing Court judges can carry out this duty easily by discussing and informing tenants of this right.
Damages in an Eviction Case
South Boston Elderly Residences v. Moynahan, 91 Mass. App. Ct. 455 (2017) further elucidates damages in the landlord-tenant context. Moynahan lived in a small (450 square feet) unit that suffered from perpetual moisture and mold problems. Conditions eventually deteriorated to the point of mushrooms growing in the carpeting-the landlord refused to address in light of clutter.
Boston Inspectional Services eventually cited the landlord-who in turn served a notice to quit in October 2011 and refused to cash rent checks. Moynahan returned to the apartment but discovered inadequate ventilation-and a second and third summary process action followed. A three day trial ensued-and the trial judge refused to award any rent abatement damages for moisture or mold before August 2011 or for fall of that year because Moynahan prevented repairs. The judge also found that Moynahan rebutted the presumption of in retaliation due to clutter and sustained non-payment of rent.
Although the Appeals Court sympathized with Moynahan’s plight, ultimately, the code violation relative to moisture and mold were minor and did not cause problems until May 2012. Thus, the findings of fact were not clearly erroneous to warrant damages. 91 Mass. App. Ct. at 462-464. Moreover, since Moynahan prevented access for repairs and had access to another nearby apartment, he only established lack of access to an adequate unit for three months of five –and the judge did not err in only awarding him one month.
Regarding ventilation damages, the judge erred in so far as he based an abatement award to Moynahan as a proverbial eggshell plaintiff, or easily subject to injury due to the lack of ventilation and lack of access to windows. Rather, since a breach of warranty of habitability supported contract and tort damages, the landlord had to take Moynahan as he found him. Since the judge applied an incorrect legal standard while partially crediting Moynahan’s testimony about breathing conditions, the Appeals Court remanded. 91 Mass. App. Ct. at 465-467.
The Appeals Court however found that the judge’s finding that the landlord overcame the presumption of retaliation by clear and convincing was clearly erroneous. Although the landlord complained about the issue in March 2010, there was no evidence that Moynahan was hoarding or making it worse before the notice to quite in October 2011. Nor did the landlord act to correct it until after Moynahan called in inspectional services. Thus, Moynahan deserved statutory damages of up to three months rent or actual damages.
However, Moynahan had not established damages for c.93A. To be certain, the code violation, in and of itself, violated c.93A. But the landlord had acted to cure the violation and since Moynahan had not presented any evidence of a violation before August 2011, Moynahan had no right to 93A damages. Finally, with regards to quiet enjoyment, although unauthorized entry could amount to a breach of quiet enjoyment, the record simply did not bear it out as unreasonable-there was only incident where Moynahan did not desire the landlord’s entry but sought it for another day-which was to address repairs.
There are many possible takeaways from this case. First, a breach of the warranty of habitability should not simply be based on market or contractual damages-it should stem from actual damages a tenant suffers. Moreover, controverting retaliation cannot occur in a vacuum. The landlord must put forth real and specific evidence that the eviction was completely independent of the complaints about conditions. This dovetails with the heightened burden of proof.
This case though stands in marked contrast to the Leisure Woods case holding that c.93A damages are available for per se violations of the regulations governing manufactured housing. Although regulatory violations do constitute c.93A violations, the tenant still has to prove that the violation is continuing-which the landlord can mitigate. Like Leisure Woods however, this case creates the potential for mischief: viz. a lack of incentive for landlords to cure damages by undervaluing damages. Hopefully, the Supreme Judicial Court or the Legislature will cure or clarify this confusion.
Lurking in the background of this case are questions of hoarding. This case does not squarely present or involve the question of how a landlord’s response to hoarding may or may not mitigate tenant damages. The factual record of this case is also unclear at best as to whether or not the tenant was indeed a hoarder due to the cramped conditions in the apartment. But, that discreet legal question will have to wait for another day.
Trespass in an Eviction Case
Finally, in Federal National Mortgage v. Gordon, 91 Mass. App. Ct. 527 (2017), the Appeals Court recognized on the one hand that the Housing Court could hear a common law trespass claim. However, the Appeals Court reaffirmed that a post-foreclosure could not bring a trespass action, especially if the holdover tenants claimed leasehold rights after foreclosure. The defendant tenants had a mortgage that they fell behind on. Following a foreclosure and during a summary process action, the tenants apparently executed a lease and one tenant moved out. The trespass action followed.
The Appeals Court recalled that the scope of the subject matter jurisdiction of the Housing Court was a classically thorny issue. On the one hand, the Housing Court was a court of limited jurisdiction but could also hear matters, including tort or contract actions, related directly or indirectly to the health, safety and welfare of any occupant or place used for human habitation. 91 Mass. App. Ct. at 531-532, citing G.L. c.185C, §3. The presence of trespassers “will, in many cases, affect the health, safety and welfare of an owner or occupant” and thus was a tort action relating to health, safety and welfare. The Housing Court thus had subject matter jurisdiction.
However, the action for was trespass was impermissible. The Appeals Court recalled that G.L. c.184, §18 proscribed any attempt to recover land except pursuant to summary process or any other proceeding authorized by law. For twenty-five years, the Supreme Judicial Court held that a foreclosure sale was not a “proceeding authorized by law” as the purchasers entered lawfully and were holdover tenants. Indeed, the tenants had no duty to inquire about the landlord’s status-and had not forcibly entered. Finally, there was no evidence in the record that the bank had constructive possession-any lapse between one tenant and the other tenant was too brief to indicate a possessory surrender-the record indicated otherwise.
This case reaffirms that summary process essentially occupies the field in post-foreclosure matters. To proceed on a trespass action, the bank has to overcome the command of Section 18 and show a forcible entry. A person’s mere presence is not enough-nor can they be imputed with knowledge that a bank does or does not own property. Only a true squatter or someone else who otherwise has no interest qualifies.
The case also represents another case in the long line delineating the subject matter jurisdiction of the Housing Court. Trespass certainly does, as the Appeals Court held, implicate the health, safety, and welfare of human occupants. The trickier issue will be how that plays out in a particular case in the Housing Court-and whether or not Housing Court dockets will see more actions.
These eviction appeal decisions show that this area of law continues to be changing, and practitioners need to be aware of these recent decisions. The benefits of having an experienced appellate attorney for an eviction appeal cannot be overstated.