EVELYN MEDOFF vs. BOSTON RENT BOARD.

The plaintiff sought certificates of vacancy decontrol for each of the three units of a three-family residential dwelling she owned in the city of Boston. The property was purchased by the plaintiff in November, 1979. Until the date of purchase, all three units had been exempt from rent control, as the dwelling had been classified as an owner occupied dwelling pursuant to c. 15, Section 1(e)(ii), of the Ordinances of the City of Boston (1975). The former owner and the tenants of the other two units voluntarily vacated the premises prior to November, 1979. The present owner, the plaintiff, has never resided there.

Page 1009

The defendant, Boston Rent Board (board) rejected the plaintiff's application for vacancy decontrol. The case was then brought to the Boston Division of the Housing Court Department, where the plaintiff sought a declaration of her rights under c. 15, Section 1(e), and Boston Rent Board Regulation 10 (1976).

A Housing Court judge held that each of the units fell within the exemption of Section 1(e)(vi), set forth in the margin, [Note 1] and entered a judgment declaring the units exempt from rent control. In its appeal the board maintains the position, which it had taken in rejecting the plaintiff's application, that for Section 1(e)(vi) to apply, the vacancies must have occurred after the building came under rent control. That, the board argues, did not occur until November, 1979, when the plaintiff purchased the building, as the three units had previously been exempt from rent control under Section 1(e)(ii), a provision which exempts a three-unit dwelling if one unit is occupied by the owner.

We agree with the judge of the Housing Court that Section 1(e)(vi) does not, as the board urges, require a unit to be controlled before being entitled to an exemption. The ordinance does not mention the word "controlled," and we conclude that the term "housing accommodation," in its natural reading refers to the definition in the first paragraph of Section 1(e). To accept the board's position is not only contrary to the language of the ordinance but inconsistent with the policy of Section 1(e)(vi), which is gradually to withdraw units from regulation as voluntary vacancies occur. See Charlesbank Apartments, Inc. v. Boston Rent Control Admn., 379 Mass. 635, 639 (1980); Wallace v. Boston Rent Bd., 12 Mass. App. Ct. 13, 18 (1981).

Page 1010

To the extent that the board's definition of "legal occupant" in its regulation 10, quoted in the margin, [Note 2] precludes decontrol of premises which were "vacated voluntarily" by owners or tenants after January 1, 1976, the regulation is invalid because it vitiates the purpose of the ordinance as we have construed it.

Judgment affirmed.