2018 Mass. App. Div. 113

March 9, 2018 - July 31, 2018

Appellate Division Southern District

Court Below: District Court, Wrentham Division

Present: Hand, P.J., Welch & Finnerty, JJ.

In the Wrentham Division: Finigan, J. [Note 2]

Mark R. Laverty and Stephen M. Scolnick for the plaintiff.

Michael T. McGahan for the defendant.

FINNERTY, J. Appellant Chestnut Hill Realty Corporation ("Chestnut Hill") sought to evict appellee David Dion ("Dion") for cause from premises Dion rented under a written lease. Dion's rent was subsidized under the housing choice voucher program, 24 C.F.R. § 982, as authorized under 42 U.S.C. § 1437f. Under that program, the local public housing authority, in this case the North Attleboro Housing Authority, entered into a housing assistance payments contract ("HAP contract") with Chestnut Hill under which it was responsible for a portion of Dion's rent. Dion was responsible for paying his own portion directly to Chestnut Hill.

After a jury trial on the summary process action brought by Chestnut Hill against Dion, a jury returned a verdict in favor of Dion. [Note 3] Thereafter, Dion sought attorney's fees pursuant to G.L. c. 186, § 20. That motion was allowed by the trial court, and Chestnut Hill appeals, contending that § 20 does not apply.

General Laws c. 186, § 20 provides, "Whenever a lease of residential property shall provide that in any action or summary proceeding the landlord may recover attorneys' fees and expenses incurred . . . , there shall be implied in such lease a covenant by the landlord to pay to the tenant the reasonable attorneys' fees and expenses incurred by the tenant . . . in the successful defense of any action or summary proceeding commenced by the landlord against the tenant . . . ." See Aviksis v. Murray, 87 Mass. App. Ct. 141 (2015).

The lease between Chestnut Hill and Dion provided, in part:

"If the Lessee remains in possession without the written consent of the Lessor, at the expiration of the term hereof or its termination, then the Lessor may recover, in addition to possession, $250.00 per diem during the Lessee holdover plus damages sustained by the Lessor, plus the Lessor's cost of recovering said amounts and possession, including reasonable attorney's

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fees, in addition to any and all damages due Lessor pursuant to clause #25 of this lease." [Note 4]

Chestnut Hill claims that G.L. c. 186, § 20 does not apply as it was prohibited under 24 C.F.R. § 982.451 and the HAP contract from assessing or charging Dion any moneys in excess of the tenant's portion of his monthly rent, notwithstanding the provisions for the same under the lease.

The HAP contract was not a part of the trial court record, and Dion's motion to strike it from the record appendix should be allowed. [Note 5] Furthermore, as provided in 24 C.F.R. § 982.456(b)(1), "The [tenant] is not a party to or third party beneficiary of the HAP contract." That regulation further provides in § 982.456(b)(2): "The tenant may exercise any right or remedy against the owner under the lease between the tenant and the owner, including enforcement of the owner's obligations under the tenancy addendum (which is included both in the HAP contract between the PHA [public housing authority] and the owner; and in the lease between the tenant and the owner.)."

The regulations likewise do not prohibit penalties against a tenant in a rental arrangement with a HAP contract. Section 982.451 of 24 C.F.R. prohibits excess rent payments from the tenant. Section 982.451(b)(3) provides, "The total rent paid by the tenant plus the PHA housing assistance payment to the owner may not be more than the rent to owner" (emphasis added). Section 982.451(b)(4)(ii) provides, "The owner may not demand or accept any rent payment from the tenant in excess of this maximum . . . " (emphasis added). Chestnut Hill's reading of the regulations is further undermined by § 982.451(b)(5)(ii)(A), which provides for penalties against the PHA for late payment if the owner charges such penalties for both assisted and unassisted tenants, and also charges such penalties against the tenant for late payment of family rent to the owner. Under 24 C.F.R. § 982.452(b), owners are responsible for collecting from the tenant any charges for unit damage by the tenant's family, § 982.452(b)(5)(iii), and enforcing tenant obligations under the lease, § 982.452(b)(6).

Chestnut Hill's contention, that because Dion prevailed at trial his tenancy was not terminated or that he did not holdover, is disingenuous. Such a reading would have the effect of nullifying the application of G.L. c. 186, § 20 in every instance in which a tenant retained possession following a successful defense to summary process. Furthermore, the plain language of the notice to terminate sent by Chestnut Hill to Dion was that his tenancy would be terminated thirty days thereafter.

Last, the plain reading of G.L. c. 186, § 20 is that "[w]henever a lease of residential property shall provide . . . , there shall be implied . . . ." When a statute is construed, its words are to be given their usual and ordinary meaning considered in light of the aim

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to be accomplished by the Legislature. Aviksis, supra at 144, citing Prudential Ins. Co. of Am. v. Boston, 369 Mass. 542, 546 (1976). Although Chestnut Hill now contends that its belief, as stated in its pretrial e-mail to Dion offering to forgo its claims to attorney's fees and costs, was erroneous, we hold that § 20 does apply here and the trial court's award of attorney's fees was appropriate.

We also hold that under the circumstances, Dion ought to recover his appellate attorney's fees and costs, and he may file an affidavit of such fees and costs within fourteen days of the issuance of this opinion. Chestnut Hill may file any opposition within fourteen days of service of Dion's request.

Dion's motion to strike portions of the appendix is allowed, and the trial court's order awarding attorney's fees to Dion is affirmed.

So ordered.


[Note 1] As officer of or agent for Village Green Apartments.

[Note 2] The Honorable Thomas L. Finigan recused himself from this appeal, and did not participate in its hearing, review, or decision.

[Note 3] The trial judge dismissed Dion's counterclaim alleging discrimination as counterclaims in "for cause" evictions are not permitted. See G.L. c. 239, § 8A.

[Note 4] This is the language of paragraph 6 of the addendum to the lease. Paragraph 25 of the lease provides for the balance of any rent due under the lease and damages, including lost rents, broker's commissions, and other costs of reletting in the event of termination.

[Note 5] Chestnut Hill objected to the admission of the HAP contract at trial, and it was not admitted. The tenant is specifically not a party to the HAP contract as provided in the language that follows this note, so the HAP contract has no relevance here.