February 7, 2020

Housing Court, Northeast Division

Fairlie A. Dalton, J.


This is a summary process action brought to recover possession of the subject rental premises pursuant to a thirty-day notice to quit for cause. [Note 1] Both parties were represented by counsel. The plaintiff filed a trial memorandum. Property manager Linda Kor, assistant property manager Kelley Lesko, and Maureen Gordon, a registered nurse at the Wellness Center at Heritage House and an employee of Elder Services of the Merrimack Valley, testified for the plaintiff. The defendant filed an answer but did not testify at trial. [Note 2] The defendant's attorney reported to the court at trial that the defendant was not pursuing the procedural defenses raised in his answer. All exhibits were stipulated to by counsel before trial. Also before the court on November 6 was the defendant's motion for reasonable accommodation to preserve his tenancy, which his attorney had filed previously. Based on the credible testimony and other evidence presented at trial on November 6, 2019 and the reasonable inferences drawn therefrom, in light of the governing law, the following findings, rulings and orders are to enter:

The plaintiff is the owner of the subject rental premises, known as Heritage House and located at 32 Low Street in Newburyport, Massachusetts. The building houses elders (87%) and persons with disabilities who are under 67 years of age (13%). All 101 apartments at Heritage House have project-based subsidies provided by HUD. The defendant, Sergei Draleau, resides at Heritage House in apartment no. 611 pursuant to an occupancy agreement which began on July 24, 2018 (Exh 1). The subsidy for his apartment is administered by MassHousing.

The plaintiff served by constable a thirty-day notice to quit for cause on May 13, 2019 (Exh 2). The grounds for the termination are based on material non-compliance with the terms of the occupancy agreement, (par. F (2)), other good cause, and criminal activity (par. G(10)(f) and G(10)(j)).

Paragraph F of the occupancy agreement provides:


. . .

2. To live in a peaceful way respecting the rights of other residents to comfort, safety, privacy, security, and peaceful enjoyment and to refrain from all acts which would interfere with such rights.

Paragraph G of the occupancy agreement provides:


. . .

10. To terminate Agreement or evict Resident for no reason other than the following:

. . .

f. criminal activity by Resident, any member of Resident's household, a guest or another person under the Resident's control:

(i) that threatens the health, safety, or right to peaceful enjoyment of the Development by other residents (including property management staff residing on the Development premises); or

(ii) that threatens the health, safety, or right to peaceful enjoyment of their residences by persons residing in the immediate vicinity of the Development premises;

. . .

j. if Management determines that Resident, any member of Resident's household, a guest or another person under Resident's control has engaged in criminal activity, regardless of whether Resident, any member of Resident's household, a guest or another person under Resident's control has been arrested or convicted of such activity.

Ms. Kor and Ms. Lesko testified that they noticed changes in Mr. Draleau's behavior in approximately February 2019. His appearance became unkempt. He wore women's jewelry and sunglasses. He went from being quiet to boisterous and erratic when he addressed others in the building. He pushed all the buttons on the elevator. He took a maintenance worker's I-Pad and later returned it. Ms. Kor testified that she received a call from her daughter who was covering in the office while the staff were at a conference. Mr. Draleau knocked on the window of the office, waved and smiled, and made strange gestures. Ms. Kor called the superintendent who went to the office and oversaw the situation. In March or April Mr. Draleau came into the office with cuts. He reported that he had seen a ghost in the apartment, whom he believed to be a former tenant in the apartment who had died there. In fact, no one had died in Mr. Draleau's apartment. Ms. Kor addressed the changes in the defendant's behavior with his mother.

Ms. Kor became aware that criminal charges had been filed against Mr. Draleau for larceny and assault and battery on two elderly homeless people off the premises. On May 9 she inspected the apartment with a maintenance worker based on a report she received that unauthorized people were living in Mr. Draleau's apartment. They did not find anyone living there, although the apartment was dirty and there were cigarette butts on the coffee table (Exh 3). Ms. Kor considered this to be a violation of the smoking addendum to the occupancy agreement (Exh 1). On May 20 Ms. Kor met with Mr. Draleau's parents. They requested that Mr. Draleau keep his apartment although he was not residing there at the time. He was incarcerated and undergoing a psychiatric evaluation and mental health competency determination as a result of the criminal charges pending against him. [Note 3]

Ms. Kor testified that she assumed that Mr. Draleau's actions were based on his stopping his medications. She understood that he administers them himself and that no one supervises his taking them. She and Ms. Lesko reported that other residents and their families expressed concern that he would stop taking his medications if he returned to the building. No residents from the building testified at trial. The defendant requested a reasonable accommodation with medical documentation that he be allowed to remain living in the apartment when he was released. The parties through their attorneys entered into the interactive process as required by Boston Housing Authority v. Bridgewaters, 452 Mass. 833 (2009) and paragraph K of the occupancy agreement (Exh 1). By letter dated November 4, 2019, the plaintiff denied the reasonable accommodation request on the grounds that Mr. Draleau posed a direct threat to the other residents at Heritage House (Exh 4). [Note 4]

The plaintiff concedes that, in and of themselves, the changed behaviors in February and March were not lease violations or grounds to evict. However, the plaintiff takes them to be warning signs because Mr. Draleau was charged with criminal offenses within two months. The concern is that to the extent his behaviors on and off the property were caused by his failure to take his medications, he may stop taking them again. The plaintiff agreed that there had been no erratic behavior in the short time since October 30 when Mr. Draleau returned to the property. The plaintiff's witnesses testified that they had never seen him become violent with other residents or staff. Even when he frightened Ms. Kor's daughter, he did not make any threats nor did he enter the office.

It is this concern for what Mr. Draleau could do in the future based on his past behavior which is central to this eviction case. The plaintiff who is responsible for the well-being of all the residents and staff is concerned that Mr. Draleau will become violent on the property if he stops taking his medications. When he is compliant with his medications, he does not cause problems; when he is not compliant with his medications, there are problems. Maureen Gordon, a registered nurse at the Wellness Center at Heritage House and an employee of Elder Services of the Merrimack Valley, offered insights into the situation. She also is aware that residents are concerned. While she is not involved directly in Mr. Draleau's diagnosis and treatment, she is aware that he takes anti-psychotic medication because he has brought used needles to her needle disposal program. She understands that Mr. Draleau has been diagnosed with schizo-affective disorder. She testified that based on her review of the literature, she understands that if a person with such a diagnosis stopped taking his medications, especially if it were done suddenly, such a person could become depressed and isolated, violent, and experience auditory and visual hallucinations. She testified that as part of her work at the Wellness Center, she could administer the injections of Mr. Draleau's medications, but he declined her assistance in the past.

The court finds that there is insufficient evidence that the defendant poses a direct threat to the safety of the other residents and the staff of the property at this time. The concern that he may do so in the future if he stops taking his medications can be addressed by a reasonable accommodation that includes supervised administration or administration by a third party of his medications as prescribed by his medical providers. Usually a court cannot order a landlord to provide such supervision or assistance. See, Peabody Properties, Inc. v. Sherman, 418 Mass. 603 (1994). However, in this case, Maureen Gordon who is an employee of Elder Services of the Merrimack Valley but provides services at the premises, testified that she has offered to administer Mr. Draleau's medications in the past and she would do so now if he requested her to do so. The parties must continue to engage in the interactive process. It is incumbent on the defendant, with the assistance of his attorney and his medical providers, to propose a specific reasonable accommodation plan to ensure that Mr. Draleau remains compliant with his prescribed medications.

It is not clear from the evidence at trial who was smoking in Mr. Draleau's apartment or if he had any knowledge that someone was doing so. He was not in residence at the time of the May 9 inspection. Management received a report from the VinFen agency that there were unauthorized persons staying in the apartment. Ms. Kor testified that she had never received a report of Mr. Draleau smoking in his apartment. In fact she had seen him smoking in the designated smoking areas outside. The court finds that the claim that Mr. Draleau violated the no smoking addendum to the occupancy agreement has not been substantiated.

Order for Entry of Judgment. For the above-stated reasons, Judgment shall enter for the defendant for possession of the subject rental premises.


[Note 1] A related case, Low Street Associates LP v. Draleau, 19CV00285, was dismissed by the parties on November 6 as moot, because the summary process case had gone to trial.

[Note 2] At the time of the summary process trial, criminal charges were pending against Mr. Draleau. He was represented by the same attorney in the criminal proceedings and in the summary process case. Counsel reported to the court that she had explained to Mr. Draleau his Fifth Amendment rights and the different standard regarding what the trier of fact in a civil case could infer from his failure to testify. See, Quintal v. Commissioner of the Dept. of Employment and Training, 418 Mass. 855 , 861 (1994), quoting from Labor Relations Commn. v. Fall River Educators' Assn., 382 Mass. 465 , 471 (1981); Scully v. Retirement Board of Beverly, 80 Mass. App. Ct. 538 (2011).

[Note 3] This part of the criminal process explains the gap in time between when the plaintiff filed this eviction case (June 25, 2019) and the trial (November 6, 2019). Mr. Draleau was not residing in the apartment for six months. By order dated October 3, 2019, this court ordered that the plaintiff's attorney be notified if Mr. Draleau was to be released before the trial in the summary process case. On October 30, he was found competent to stand trial in the criminal proceedings and released. His father returned him to the apartment without any notice to the plaintiff's attorney.

[Note 4] In the same letter the plaintiff acknowledged that it had granted another request for reasonable accommodation,that Mr. Draleau be allowed to keep his apartment while he was undergoing inpatient psychiatric evaluation. This evaluation took six months - considerably longer than the three months HUD regulations allow a tenant to be out of a subsidized unit.