Beacon Residential Management, LP v. R.P. , 477 Mass. 749 ( 2017 )

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SJC-12265
BEACON RESIDENTIAL MANAGEMENT, LP vs. R.P.1
Suffolk. April 6, 2017. - September 14, 2017.
Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.2
Summary Process. Practice, Civil, Summary process,
Intervention.
Summary Process. Complaint filed in the Boston Division of
the Housing Court Department on July 27, 2015.
A motion to intervene was heard by Jeffrey M. Winik, J.
An application for leave to prosecute an interlocutory
appeal was allowed in the Appeals Court by Gregory I. Massing,
J. After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
David Emer (Alison T. Holdway also present) for the mother.
Therese Quijano for the plaintiff.
Julia Devanthéry, for Casa Myrna & another, amici curiae,
submitted a brief.
Dorothy Bourassa & Eileen M. Fava, for Women's Bar
Association, amicus curiae, submitted a brief.
1
A pseudonym.
2
Justice Hines participated in the deliberation on this
case prior to her retirement.
2
BUDD, J. In this case we consider whether a mother3 has the
right to intervene in an eviction action brought by a landlord
against the mother's husband and their young children as the
named defendants where, although she is not a named tenant on
the lease, she has lived with her family in the apartment
throughout the tenancy and alleges domestic violence in the
home. We conclude that she may intervene both on her own behalf
and on behalf of her children.4
1. Background. This case is before us on the mother's
appeal from the denial, by a judge of the Housing Court, of the
her motion to intervene in a summary process action brought by
Beacon Residential Management LP (Beacon), the agent of the
apartment owner, Georgetowne Homes Two, L.L.C. (Georgetowne
Homes) (collectively, landlord). We recite relevant allegations
from the mother's motion to intervene and proposed answer, as
supplemented by the testimony at the hearing before the motion
judge.5
3
The prospective intervener.
4
We acknowledge the amicus briefs of the Women's Bar
Association, and Casa Myrna and Jane Doe, Inc.
5
In this case the landlord premised its notice to quit on
the ground that there was an "unauthorized individual" -- the
mother -- living in the apartment who had been involved in a
"disturbance" on the property. In the proposed answer appended
3
In October, 2009, the mother, together with her husband,
R.P., and their son, moved into a federally regulated and
subsidized apartment in the Hyde Park section of Boston; the
apartment was owned by Georgetowne Homes.6 Initially both the
mother and R.P. signed the lease. Soon thereafter the landlord
informed them that the Federal government would not subsidize
the rent due to the mother's immigration status; thereafter, the
couple removed the mother from the lease.7 At that time,
February, 2010, R.P. remained in the apartment and signed a new
to the mother's motion to intervene, she claimed that she would
raise affirmative defenses to both of the grounds listed in the
notice to quit. Accordingly, a trial on the merits of the
summary process action or on the merits of the defenses raised
in the mother's proposed answer would involve the same factual
circumstances as the question whether the mother claims an
interest in the subject of the proceeding. In these
circumstances, for the reasons we discuss infra, the motion to
intervene is to be determined on the allegations in the motion,
attached pleadings, and supporting testimony and documents. See
American Nat'l Bank & Trust Co. v. Bailey, 750 F.2d 577, 585
(7th Cir. 1984), cert. denied sub nom. Chicago Inv. Corp. v.
American Nat'l Bank & Trust Co. of Chicago, 471 U.S. 1100 (1985)
(discussing analogous Federal rule).
6
The project-based housing was available through the United
States Department of Housing and Urban Development Housing
Choice Voucher Program, pursuant to 42 U.S.C. § 1437f (2012) and
implementing regulations. See Figgs v. Boston Hous. Auth., 469
Mass. 354, 355 & n.2 (2014). In eligible housing, commonly
referred to as "Section 8" housing, the Federal government,
through the local public housing agency, "pays rental subsidies
so eligible families can afford decent, safe and sanitary
housing." Id. at 355 n.2, quoting 24 C.F.R. § 982.1(a)(1)
(1999).
7
At the time, as a noncitizen, the mother needed
documentation that she was legally in the United States.
4
lease for subsidized rent for himself and the son, and the
mother and son moved to R.P.'s parents' home. The two returned
to the apartment in June, 2010, but neither the mother nor R.P.
took steps to amend the lease to include the mother as a
household member.
In June, 2012, the mother was approved as a permanent
resident. She returned to the landlord's office with her
immigration paperwork, including her green card, and asked the
landlord to add her name to the lease. The landlord's policy
was to give an "add-on" application to anyone who requested one,
and the landlord's agent testified that had the mother completed
an add-on application, she would have been added to the lease as
a matter of course, as long as R.P. agreed. However, although
the mother asked to be added to the lease, she was not given an
add-on application. The mother testified that the landlord's
agent told her that only R.P. could add her name to the lease.
She further testified that R.P. refused to do so as a way of
controlling her.
On May 1, 2015, the mother obtained an abuse prevention
order pursuant to G. L. c. 209A (209A order) against R.P..8 The
8
She had previously obtained an abuse prevention order
pursuant to G. L. c. 209A (209A order) against R.P. in 2012. In
2013, R.P. tried -- unsuccessfully -- to obtain an order against
the mother. Although the Housing Court judge permitted the
parties to introduce the relevant orders in evidence at the
5
order required him to stay away from the apartment and from the
mother's workplace; it also ordered him not to contact the
mother or their two children9 and granted full custody of the
children to the mother. The order was subsequently extended for
a full year.
On May 26, 2015, the landlord served a notice to quit on
R.P. and the two children. The notice stated that the mother
was an "unauthorized individual" living in the apartment, and
that she was "involved in a disturbance on the property."10 In
July, 2015, the landlord filed a summary process action in the
Boston Division of the Housing Court Department based on the
notice to quit. The mother filed a motion to intervene and a
proposed answer,11 arguing that the housing provisions of the
intervention hearing, he did not permit them to introduce
evidence related to the underlying facts for any of these
actions, ruling that such evidence was "not relevant to [the]
proceedings" on the motion to intervene.
9
The mother gave birth to a second child after the family
moved into the apartment but before the summons and complaint
for summary process were filed.
10
The mother claims that the disturbance was related to the
209A order and thus was an impermissible ground for eviction
under the Violence Against Women Act (VAWA). The factual and
legal bases for this claim would be properly litigated in a
trial on the merits.
11
In the Housing Court, the mother had also moved for
permissive intervention pursuant to Mass. R. Civ. P. 24 (b), 365
Mass. 769 (1974). Because we conclude that she is entitled to
intervene as of right, we need not consider the judge's denial
of permissive intervention, which is subject to considerable
6
Violence Against Women Act, 42 U.S.C. § 14043e-11 (2012 & Supp.
II) (VAWA), and G. L. c. 239, § 2A, prohibited the eviction
because it was predicated on domestic violence. See 42 U.S.C.
§ 14043e-11 (housing protections for victims of domestic
violence).
The landlord opposed the mother's motion to intervene, and
the judge permitted both parties to introduce documents and
testimony in an evidentiary hearing, at which the mother and the
landlord's leasing agent testified. The judge issued oral
findings in which he did not credit most of the mother's
testimony and found that she and R.P. made a joint decision not
to add her to the lease, to enjoy the benefit of lower rent. In
addition, he found that the landlord's failure to give the
mother an add-on application was due to negligence and not
related to domestic violence, so the mother had not been
discriminated against as an applicant under VAWA. As a result,
the judge determined that the mother did not have an interest
that allowed her to intervene as of right, but he allowed the
mother to amend the motion to seek intervention on behalf of her
children. He later denied the motion as amended, stating that
the mother could not represent the children because she had
discretion. See Cruz Mgt. Co. v. Thomas, 417 Mass. 782, 785
(1994) ("A judge has broad discretion in deciding whether to
permit intervention").
7
acted fraudulently by living in the apartment without being
named as a tenant on the lease. Finally, because R.P. did not
appear, the judge entered a judgment of default.12 The mother
timely appealed to the Appeals Court the denial of her motion to
intervene and the judgment of default. In an unpublished
memorandum and order issued pursuant to its rule 1:28, the
Appeals Court affirmed the denial. We allowed the mother's
application for further appellate review and vacate both the
denial of the motion to intervene and the judgment of default.
2. Discussion. a. Legal standard. We begin with the
language of the relevant rule governing intervention as of
right. "Upon timely application anyone shall be permitted to
intervene in an action . . . when the applicant claims an
interest relating to the property or transaction which is the
subject of the action and he is so situated that the disposition
of the action may as a practical matter impair or impede his
ability to protect that interest, unless the applicant's
interest is adequately represented by existing parties"
(emphasis added). Mass. R. Civ. P. 24 (a) (2), 365 Mass. 769
(1974). Whether the prospective intervener has met "the
requirements for intervention is a question of law," and
12
For reasons that are not apparent, the judgment of
default was entered not only against R.P., but also against the
children (who had been dismissed from the case) and the mother
(who had not been permitted to intervene).
8
therefore we review the ruling de novo. See Commonwealth v.
Fremont Inv. & Loan, 459 Mass. 209, 217 (2011). In interpreting
this rule, we look for guidance to decisions of Federal courts
concerning Fed. R. Civ. P. 24 (a), as the Massachusetts rule on
intervention is nearly identical to this analogous rule. See
Fremont Inv. & Loan, supra at 218.
Rule 24 (a) (2) "does not articulate explicit criteria for
determining the sufficiency of the asserted interest."
Bridgeman v. District Attorney for the Suffolk Dist., 471 Mass.
465, 484 (2015), quoting Bolden v. O'Connor Café of Worcester,
Inc., 50 Mass. App. Ct. 56, 62 (2000). Cf. Commonwealth v. One
Hundred Twenty-Five Thousand One Hundred Ninety-One Dollars, 76
Mass. App. Ct. 279, 281-282 (2010) (in civil drug forfeiture
cases, inquiry is similar to injury prong of standing analysis).
Thus, the type and degree of interest that suffice for
intervention depend on "the nature of the action in which
intervention is claimed." Care & Protection of Zelda, 26 Mass.
App. Ct. 869, 871 (1989). In the context of this proceeding,
the question is whether the prospective intervener claims an
interest relating to the unit subject to eviction proceedings
notwithstanding the fact that she is not listed on the lease as
a tenant.
What a prospective intervener must show to intervene is
central to this case. We note, first, that "Rule 24 (a) (2)
9
requires only that the applicant claim an interest relating to
the property in suit," even if the claim may ultimately fail on
the merits. See American Nat'l Bank & Trust Co. v. Bailey, 750
F.2d 577, 585 (7th Cir. 1984), cert. denied sub nom. Chicago
Inv. Corp. v. American Nat'l Bank & Trust Co. of Chicago, 471
U.S. 1100 (1985). Because the question of intervention is a
threshold inquiry, see United States v. AT&T, 642 F.2d 1285,
1291 (D.C. Cir. 1980), resolution of the merits of the
prospective intervener's proposed pleading (an answer, in this
case) or of the existing case would be inappropriate, so the
motion to intervene "cannot be resolved by reference to the
ultimate merits of the claim the intervener seeks to assert
unless the allegations are frivolous on their face." Turn Key
Gaming, Inc. v. Oglala Sioux Tribe, 164 F.3d 1080, 1081 (8th
Cir. 1999), citing Oneida Indian Nation v. New York, 732 F.2d
261, 265 (2d Cir. 1984). See Securities & Exch. Comm'n v.
Dresser Indus., 628 F.2d 1368, 1390 (D.C. Cir.), cert. denied,
449 U.S. 993 (1980). Instead, in these cases, "[t]he situation
is somewhat akin to that presented on a motion for summary
judgment or on a motion to dismiss," Stadin v. Union Elec. Co.,
309 F.2d 912, 917 (8th Cir. 1962), cert. denied, 373 U.S. 915
(1963), and the judge should "take all well-pleaded,
nonconclusory allegations in the motion to intervene, the
proposed complaint or answer in intervention, and declarations
10
supporting the motion as true absent sham, frivolity or other
objections." Southwest Ctr. for Biological Diversity v. Berg,
268 F.3d 810, 820 (9th Cir. 2001) ("the propriety of
intervention must be determined before discovery"). See Reich
v. ABC/York-Estes Corp., 64 F.3d 316, 321 (7th Cir. 1995). Cf.
Service Employees Int'l Union, Local 509 v. Department of Mental
Health, 469 Mass. 323, 329 (2014), S.C., 476 Mass. 51 (2016),
and cases cited (on motion to dismiss for lack of standing,
court "take[s] as true all facts alleged in the . . .
complaint"). See Iannacchino v. Ford Motor Co., 451 Mass. 623,
636 (2008). Although a motion judge may hear arguments on the
motion, or hold an evidentiary hearing to resolve ambiguities
where the motion to intervene is not clearly understood, see
Southwest Ctr. for Biological Diversity, supra, it is legally
inappropriate at such an early stage to make findings regarding
a prospective intervener's claimed interest, at least where, as
here, such a determination would go to the merits of the
proposed pleading or of the underlying case.13
13
Citing Demoulas v. Demoulas Super Mkts., Inc., 424 Mass.
501, 509, 510 (1997), and Mass. R. Civ. P. 52 (a), as amended,
423 Mass. 1402 (1996), the landlord argues that upon the review
of a denial of a motion to intervene, the motion judge's
findings must stand absent clear error. Indeed, this court
stated as much as dictum in Commonwealth v. Fremont Inv. & Loan,
459 Mass. 209, 217 (2011). However, we note that the case cited
in Fremont to support the proposition that we allow factual
findings to stand absent clear error relied on a case that had
11
Thus, the prospective intervener should not be required to
demonstrate the merits of his or her claim at an evidentiary
hearing. Instead, the claim of intervention should be evaluated
based on the allegations of the claim itself, and related
documents; its merits are to be decided with all other claims.
To hold otherwise would require a judge to rule on the merits of
a prospective intervener's claimed interest -- including where
that interest concerns the merits of a case that would go to a
jury -- rather than determining only whether the prospective
intervener has claimed an interest. See American Nat'l Bank &
Trust Co. of Chicago, 750 F.2d at 585.
b. Application. The mother argues that both she and her
children have an interest in the subject of the eviction
proceedings that is not adequately represented by the existing
parties.14 The judge ruled that the mother did not have a
sufficient interest in the proceedings because she is neither a
nothing to do with intervention or any analogous pretrial
situation. More importantly, adopting such a rule would
overlook the procedural context of a motion to intervene.
Indeed, the sources cited by the landlord concern appellate
review following a full trial on the merits, whereas a motion to
intervene is generally filed prior to discovery.
14
As the judge noted, R.P. was no longer permitted to live
with the family due to the abuse prevention order, so he had
very little incentive to act in the mother's or children's
interest. See Frostar Corp. v. Malloy, 77 Mass. App. Ct. 705,
712 (2010), quoting United States Postal Serv. v. Brennan, 579
F.2d 188, 191 (2d Cir. 1978) ("burden of showing that
representation may be inadequate . . . 'should be treated as
minimal'").
12
tenant nor an "otherwise qualified applicant" within the meaning
of VAWA, and that, as described below, she could not represent
the children's interest because she committed fraud. We
disagree and conclude that she is entitled to intervene on
behalf of herself pursuant to VAWA and on behalf of her children
pursuant to both VAWA and G. L. c. 239, § 2A.
i. Mother's interest in the proceedings. Among other
protections, VAWA provides that tenants and otherwise qualified
applicants of public housing programs may not be denied or be
evicted from housing on the basis that the tenant or applicant
is a victim of domestic violence. See 42 U.S.C. § 14043e-
11(b)(1). The mother asserts that she is an otherwise qualified
applicant because she sought to be added to the lease and was a
victim of domestic abuse by R.P.. The motion judge concluded,
however, that the mother was not "otherwise qualified" under
VAWA, finding that she committed fraud by living in the
apartment without being added to the lease to avoid an increase
in rent. This was error.
As discussed above, because the issue to be determined in
deciding a motion to intervene is simply whether the prospective
intervener has alleged plausible facts that claim an interest,
not whether she would ultimately prevail in the underlying
action, we take the mother's allegations in her motion,
testimony, and supporting documents as true, and draw reasonable
13
inferences in her favor. In other words, we consider only
whether the mother has claimed an interest here as an otherwise
qualified applicant. As the landlord's contrary allegations --
that she was an unauthorized occupant and committed fraud -- go
to the merits of the eviction case, they should not have been
considered at the motion to intervene hearing.
VAWA does not expressly define what it means to be
otherwise qualified, including whether this definition refers
only to factors such as income and family size. However, this
motion arose in a preliminary stage of the case. Because the
mother claims that she tried to apply and that R.P. was abusive
and prevented her from being added to the lease as a way of
controlling her, she has alleged sufficient facts to permit an
inference that she was an otherwise qualified applicant, and is
entitled to intervene in the eviction proceeding. American
Nat'l Bank & Trust Co. of Chicago, 750 F.2d at 585 (opposing
party's defenses to intervener's counterclaim did not defeat
motion to intervene). Any further determination of the
credibility of her factual allegations as to whether she is
otherwise qualified would be properly adjudicated at a later
stage. Id.
14
ii. Children's interest in the proceedings.15 The mother
also seeks to intervene in the eviction action on behalf of her
children. We note that as to any interest claimed by the
children, it is appropriate for the mother to intervene, as she
is the parent with sole custody and they are minors.16 We
conclude that the mother has sufficiently alleged that the
15
The unqualified judgment of default against R.P. means
that if the lower court decision stands, the children will be
forced to move. Normally, where minor children are living in an
apartment with one parent, the question whether they have an
interest sufficient to intervene is irrelevant because the
parent is presumably an adequate representative of their
interests. Here, however, R.P. was barred from contact with the
children as a result of the 209A order, and he failed to appear
in court. That does not automatically mean that the children
have no recourse to prevent eviction. Cf. Arsenault v. Chicopee
Hous. Auth., 15 Mass. App. Ct. 939, 941 (1983) (where custodial
parent abandoned child and apartment, child who was lawful
occupant could assert right to grievance procedures before
eviction, even if success on merits was not guaranteed).
16
As the 209A order against R.P. awarded sole custody of
the children to the mother, it is appropriate for her to be the
one to intervene on their behalf. Cf. Mass. R. Civ. P. 17 (b),
as appearing in 454 Mass. 1402, 1402-1403 (2009); Arsenault, 15
Mass. App. Ct. at 939-940 (natural father brought action on
child's behalf as next friend). In this case we find that any
potential deficiencies in the mother's claims asserted in
support of her motion to intervene as a party in her own right
do not prevent her from meeting her threshold burden to
intervene in her representative capacity on behalf of the two
children. Moreover, as discussed supra, these are issues that
should be properly resolved on the merits in the summary process
proceeding itself.
15
children have interests entitling them to intervene, pursuant to
both Federal and State law.17
VAWA provides that tenants may not be denied occupancy
rights "solely on the basis of criminal activity directly
relating to domestic violence . . . that is engaged in by a
member of the household of the tenant or any guest . . . if the
tenant or an affiliated individual of the tenant is the victim
or threatened victim of such domestic violence." 42 U.S.C.
§ 14043e-11(b)(3)(A). Here, the landlord seeks to evict the
family, including the children, alleging that the parents
committed fraud.18 The children qualify as tenants for purposes
17
Because the mother has alleged that the lease violations
claimed by the landlord were the result of domestic abuse by
R.P., she has also alleged sufficient facts for the children to
have an interest under other provisions of VAWA, including 42
U.S.C. § 14043e-11(b)(2) (2012 & Supp. II), which provides:
"An incident of actual or threatened domestic violence
. . . shall not be construed as --
"(A) a serious or repeated violation of a lease for
housing assisted under a covered housing program by the
victim or threatened victim of such incident; or
"(B) good cause for terminating the assistance,
tenancy, or occupancy rights to housing assisted under a
covered housing program of the victim or threatened victim
of such incident."
18
Fraud may fall under the category of "criminal activity"
for purposes of VAWA. See United States Department of Housing &
Urban Development, The HUD Handbook 4350.3: Occupancy
Requirements of Subsidized Multifamily Housing Programs, at 8-26
16
of VAWA because they are lawful occupants and members of the
"assisted family," see 81 Fed. Reg. 80,724, 80,730 (Nov. 16,
2016), and their mother is an "affiliated individual" of them.
See 42 U.S.C. § 14043e-11(a)(1)(A) (including "parent" and
"child" in definition of "affiliated individual"). Here,
accepting as true the mother's claim that she was prevented from
adding her name to the lease as a part of R.P.'s abuse, it
follows that we also accept as true the proposition that the
criminal activity, i.e., fraud, alleged by the landlord was a
result of domestic violence. As a result, the landlord's
attempt to evict the children violates 42 U.S.C. § 14043e-
11(b)(3)(A). Therefore, under VAWA, the children are tenants
with an interest in the unit and the right to defend against
wrongful eviction; thus, they have an interest sufficient to
intervene in the action.
The children also have a viable defense to eviction based
on Massachusetts law. Under G. L. c. 239, § 2A, there is a
rebuttable presumption that an eviction action commenced within
six months of a household member seeking a 209A protective order
is retaliatory. Here, the 209A order was entered on May 1,
2015, and the notice to quit was dated May 26, 2015. Thus,
there are sufficient facts to permit a presumption of
to 8-27 (Nov. 2013) (concerning Section 8 housing, "Fraud can be
handled as a civil and/or criminal violation").
17
retaliation. Accordingly, the mother may intervene on behalf of
the children on this basis as well.
3. Conclusion. It perhaps goes without saying that
success on a motion to intervene in an action does not guarantee
success on the merits of that action. In this case, it means
simply that the mother is permitted to assert affirmative
defenses to the eviction action on behalf of herself and her
children. Because we conclude that the motion judge prematurely
reached the merits of the case, we vacate the judgment of
default, reverse the denial of the motion to intervene, and
remand for further proceedings consistent with this opinion.
So ordered.