2018 Mass. App. Div. 116

March 9, 2018 - July 31, 2018

Appellate Division Southern District

Court Below: District Court, Falmouth Division

Present: Hand, P.J., Kirkman & Finigan, JJ.

In the Falmouth Division, Welch, J. [Note 1]

Robert W. Nolan for the plaintiff.

Raymond A. Yox for the defendant.

KIRKMAN, J. This is an appeal by Maureen Flynn ("Flynn") from a judgment of the Falmouth District Court awarding possession of her apartment to her landlord, the Falmouth Housing Corporation ("FHC"), a nonprofit corporation that operates and manages housing for low and moderate income tenants in Falmouth, Massachusetts. Flynn resides in an FHC-managed development in North Falmouth. Her tenancy includes a federally subsidized rent voucher.

The trial court found that Flynn suffers from a number of physical and psychological conditions and has difficulty with a hoarding disorder. As a result of the disorder, the court found that Flynn violated the terms of her lease by causing damage to her unit through the accumulation of trash and flammable items and, in doing so, caused a health and safety threat to her neighbors. [Note 2]

Flynn claims three errors by the trial judge in reaching his decision. [Note 3] First, she argues that the notice terminating the tenancy was legally insufficient because it did not specifically state facts supporting the termination. Second, the court erred in determining that Flynn was not entitled to a reasonable accommodation of her disability pursuant to state and federal antidiscrimination

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laws and regulations protecting the property interests of disabled individuals. And third, the court erred in finding Flynn posed a threat to her neighbors without evidence of an individual assessment having been performed by FHC as required by law.

Background. Flynn entered into a lease agreement with FHC in April, 2006, for a one-bedroom apartment in a six-building complex totaling twenty-four units of moderate and low income subsidized rentals in North Falmouth, Massachusetts. Her rent was subsidized through the federal Section 8/Disabled Individual Alternative Living ("DIAL") program. See 42 U.S.C. §1437f(a); 24 C.F.R. § 982.1(b)(1).

Flynn, in the trial judge's view, was a model tenant "except for her abilities to control her collection of items and storing them in her apartment." Flynn survives on disability payments from the Social Security Administration ("SSA") and has been treated by Arbour Counseling Services ("Arbour"). According to SSA records, Flynn suffers from a "major depressive disorder; mood order [sic] with psychotic features; anxiety disorder; post-traumatic stress disorder"; and phobias that impair social interaction and interfere with leaving home. Her symptoms go back to 2011. Arbour records reference Flynn's hoarding tendencies in her apartment. Flynn's treatment at Arbour ended in 2016.

In June, 2012, FHC sent a letter to Flynn stating her apartment had failed a June 4, 2012, inspection due to her hoarding and specifically directed her to clean up her apartment and create "no less than three (3) feet of access to [her] windows and doors." She was warned that if she did not comply, she would face eviction. The trial judge found that from 2012 to 2017, FHC continued to deal with Flynn's hoarding issues. Flynn sent a letter to FHC in March, 2016, agreeing to its request that she clean up her apartment by removing (in her words) a "great portion" of her belongings. In the letter, she discussed her disabilities and need for a "reasonable accommodation."

FHC received complaints from neighbors of foul odors coming from Flynn's apartment and safety concerns because of the immense amount of flammable items stored in the apartment. One neighbor, whose apartment is above Flynn's, pleaded in a letter to FHC to take action because of wall-to-wall garbage in the apartment creating a fire hazard and ant infestation coming from Flynn's apartment into the neighbor's apartment.

The matter came to a head in February, 2017, when Flynn contacted the maintenance staff at the apartment complex that her heat was not working. The staff determined that the heat was working but all of Flynn's heat registers were blocked by debris and that items were stacked floor to ceiling.

In the five years prior to commencement of eviction proceedings, FHC spent $1,700.00 for specialists to help Flynn remove the clutter and debris from her apartment. Two agencies and three individuals were offered to assist in cleaning up the apartment. But Flynn would not let the people into the apartment to assist her and fired those who were there to help. Flynn also rejected, by not responding, offers of individual counseling and group therapy to address her challenges. Ultimately, Flynn stopped answering her door and returning telephone calls regarding "the mess" (as the trial judge found). Nevertheless, Flynn rejects the trial judge's careful findings as not based in the evidence.

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Discussion. In reviewing the trial judge's decision, we should "accept his findings of fact as true unless they are clearly erroneous, and we give due regard to the judge's assessment of the witnesses' credibility." Andover Hous. Auth. v. Shkolnik, 443 Mass. 300, 306 (2005), citing Mass. R. Civ. P. 52(a). See U.S. Bank Nat'l Ass'n v. Schumacher, 467 Mass. 421, 427 (2014), and cases cited. However, "we scrutinize without deference the legal standard which the judge applied to the facts." Id., quoting Kendall v. Selvaggio, 413 Mass. 619, 621 (1992).

The legal standard to be applied here arises from the Fair Housing Act of 1968 ("FHA"), 42 U.S.C.S. § 3601 et seq., which makes it illegal to discriminate in housing practices on the basis of a handicap in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling. § 3604(f)(2)(A).

There is no question that Flynn suffers from a disabling condition that creates a causal link between the disability for which she sought a reasonable accommodation and the conduct that is the subject of her eviction. Because of that condition, and that the rental unit at issue is the subject of a federal subsidy, Flynn's occupancy is covered by the federal antidiscrimination laws and regulations. Boston Hous. Auth. v. Bridgewaters, 452 Mass. 833, 848 (2009).

1. Notice to quit. In this case, the trial judge allowed into evidence, over Flynn's objection, the thirty-day notice purporting to terminate her tenancy. [Note 4] The appellant argues that because the notice did not contain any details of good cause for the termination of the tenancy, the tenancy was not properly terminated and the action should have been dismissed. Moreover, the appellant claims she was denied the constitutionally guaranteed due process of law because of the lack of a specific notice terminating the federally subsidized lease.

"A tenant's interest in her public housing tenancy, formalized in her lease as well as in the statutory requirement of ‘cause,' is a protected interest, entitling her to fair procedures before the government can terminate it." Spence v. Gormley, 387 Mass. 258, 275 (1982). Pursuant to the legislative scheme governing the administration of this lease, the landlord "shall not terminate the tenancy except for serious or repeated violation of the terms and conditions of the lease, for violation of applicable Federal, State, or local law, or for other good cause"; and "any termination of tenancy shall be preceded by the owner's provision of written notice to the tenant specifying the grounds for such action." 42 U.S.C. § 1437f (d)(1)(B)(ii) and (iv).

In the present case, the notice to quit was unartfully drafted. It does not detail the accumulation of clutter and other items that were stacked, floor to ceiling, and blocking heat registers in Flynn's apartment thereby endangering the health and safety of her neighbors. Nevertheless, it does specifically reference lease provisions that put her on proper notice of the reasons for termination of her tenancy. More to the point, the five-year history of FHC's attempts to

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work with Flynn on her hoarding issue, especially after her 2012 request for assistance, and her ability to work with highly skilled counsel in answering the complaint, raising defenses, challenging FHC's evidence and testifying in a judicial proceeding establish the actual notice Flynn had of the reasons for termination. Spence v. O'Brien, 15 Mass. App. Ct. 489, 498 (1983). See New Bedford Hous. Auth. v. Olan, 50 Mass. App. Ct. 188, 206 (2000). The trial judge correctly admitted the notice and held FHC to its evidence in supporting the notice. See Strycharski v. Spillane, 320 Mass. 382, 384-385 (1946).

2. Reasonable accommodation. The appellant argues the trial judge erred in deciding that Flynn "was not entitled to a reasonable accommodation." The appellant mischaracterizes the trial court's decision. A close reading of the trial judge's decision establishes Flynn's right to a reasonable accommodation for her disability. What the court essentially found was that FHC did not discriminate against Flynn by its very efforts to accommodate and assist her over a five-year period.

The ultimate question that the trial court had to consider was the extent that FHC had to make reasonable accommodations to its "rules, policies, practices, or services" to afford Flynn "equal opportunity to use and enjoy a dwelling," 42 U.S.C. § 3604(f)(3)(B), and which would not impose an undue hardship or burden on the landlord. Shkolnik, supra at 307; Peabody Props., Inc. v. Sherman, 418 Mass. 603, 608 (1994). See City Wide Assocs. v. Penfield, 409 Mass. 140, 144 (1991). Indeed, the five-year delay in moving forward with eviction, coupled with the "flexible, interactive process" involving the parties in this litigation, is exactly the type of accommodation that fits within the meaning of the applicable law. Shkolnik, supra at 308, citing Ocean Spray Cranberries, Inc. v. Massachusetts Comm'n Against Discrimination, 441 Mass. 632, 644 (2004).

Based on the efforts of FHC detailed by the trial judge, including an expenditure of $1,700.00 on specialists to deconstruct Flynn's apartment, coupled with Flynn's rejection of the accommodating effort, there is nothing more FHC could and should do. And as we have seen, delaying the eviction was no solution either. Id. at 312-313; Rakuz v. Spunt, 39 Mass. App. Ct. 171, 176 (1995). Compare Penfield, supra at 144. Nothing in the applicable law requires a landlord to engage in futile efforts of accommodation. [Note 5]

3. Individualized assessment of direct threat. The appellant correctly points out that a landlord can refuse to make reasonable accommodations to a disabled tenant when the tenant poses a direct threat to others. Bridgewaters, supra at 850; 42 U.S.C. §3604(f)(9); 24 C.F.R § 9.131. But in this case, FHC engaged in an "individualized, fact-specific, and objective" assessment of Flynn's challenges. Bridgewaters, supra at 840. On the facts found by the trial judge, the assessment morphed into the very accommodation necessary to address Flynn's handicaps. But her rejection of the accommodation resulted in behaviors that posed a

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direct threat to the other tenants in the complex as the trial judge also found. There was no error in the trial court's decision.

Judgment affirmed.


[Note 1] The Honorable Christopher D. Welch recused himself from this appeal, and did not participate in its hearing, review, or decision.

[Note 2] Specifically, the court found violations of the following lease provisions:

Section 5 of the Lease Agreement: "The tenant shall be responsible for maintaining in a clean and sanitary condition and free of rubbish, other filth or cause of sickness, of neighbors in proximity to the dwelling unit." And § 8(d)(2)(c) of the Tenancy Addendum: "(Termination of Tenancy By Owner) (Other good cause for termination of the tenancy) (2)(c) After the initial lease term, such good cause includes: (c) Living or housekeeping habits that cause damage to the unit or premises."

[Note 3] The appellant's counsel lists eight issues that are, essentially, subsumed by the three arguments in his brief. One of the issues, however, is whether the trial court erred "in entering its judgment prior to making any rulings on the defendant's requests for rulings of law." Counsel did not argue this issue in his brief, see Dist./Mun. Cts. R. A. D. A. 16(a)(4), and in any event, the trial court's decision covers the appellant's requests.

[Note 4] The notice states: "This letter is to give you notice that your tenancy under the Falmouth Housing Corporation Edgerton Drive, Inc., lease has been terminated for violating the lease. Specifically violation of Section 5 of the Section 8/Dial Lease Agreement and Section 8d(2)(c) of the Tenancy Addendum."

[Note 5] In view of the efforts recited by the trial judge in his decision, it is difficult to see what other "rules, policies, practices, or services" would have accommodated Flynn's disabilities. And none have been suggested by Flynn. See Penfield, supra at 143 (in pleading unlawful discrimination claim, tenant bears burden of proving prima facie case of discrimination).