NEW BEDFORD HOUSING AUTHORITY v. SHEILA BARBOZA

This matter was before the court on March 2, 2020 with respect to a second Motion for Immediate Issuance of the Execution (the "Motion") filed by plaintiff New Bedford Housing Authority ("Landlord" or "Plaintiff"). Both parties appeared represented by counsel and an evidentiary hearing held.

Landlord is seeking to recover possession of the premises located within the Tripp Towers complex at 12 Ruth Street, Apt. #516 in New Bedford, Massachusetts (the "Premises"). Landlord moves for issuance of the execution pursuant to G.L. c. 239, §10, alleging a substantial violation of a material term of the Amended Summary Process Agreement for Judgment between the parties dated January 17, 2020 (the "Amended Agreement"). [Note 1] Specifically, Landlord alleges that defendant Sheila Barboza ("Tenant" or "Defendant") is in substantial violation of Paragraph 7 of the Amended Agreement, which states as follows:

"The defendant agrees not to have any guest at the premises between the hours of 9:00 PM in the evening to 7:00 AM in the morning, for any reason whatsoever, starting immediately and for the term of the agreement."

Timothy Hart, Director of Maintenance, testified on behalf of Landlord. Mr. Hart testified that one of the most important provisions of the Amended Agreement is Paragraph 7 because of prior disturbances caused by Tenant and/or her guests during the evening hours. [Note 2] Tripp Towers is a high-rise complex consisting of 200 units restricted to occupancy by elderly and disabled persons. According to Mr. Hart, the tenant population is vulnerable and particularly terrified of strangers in the building at night. The Court credits this testimony.

Mr. Hart testified as to the security systems present at Tripp Towers. There are cameras trained on the front door entrance to Tenant's building and on each elevator lobby, including the Tenant's 5th floor lobby. [Note 3] In addition, each tenant is provided with an electronic key fob that allows the person in possession of the fob to swipe into the secure building and also into the tenant's designated unit. Each fob is keyed to a specific unit and each electronic swipe is recorded by Landlord's system. This electronic access system allows Landlord to produce a log showing when each tenant's fob was swiped. Tenants also have the ability to "buzz" people into the building using a phone system.

Introduced into evidence was a thumb drive containing time and date-stamped video and still photos showing Tenant and/or Tenant's grandson and/or his girlfriend entering Tenant's building and exiting the elevator on Tenant's floor at various dates and times since the Amended Agreement was executed. (Plaintiff's Exhibit 1). Also introduced into evidence was a transaction report showing the dates and times when Tenant's fob was swiped to grant access to the Premises. (Plaintiff's Exhibit 2).

The Court finds that on two (2) occasions Tenant's grandson and/or his girlfriend were granted access to the Premises by Tenant during restricted hours. On February 15, 2020, at 3:18 PM, Tenant's grandson and his girlfriend are shown entering the Tenant's building. [Note 4] Later that same day, Tenant's grandson is shown on video using Tenant's fob to swipe into the building at 9:35 PM. Both the photographic evidence and the swipe records coincide to show Tenant's fob was used when Tenant's grandson entered the building at 9:35 PM. Within the same minute, he is shown leaving the 5th floor elevator and heading in the direction of Tenant's apartment. On February 16, 2020 at 12:07 PM, Tenant's grandson and his girlfriend are shown exiting the elevator in the building's first floor lobby. Her grandson is wearing the same clothing as he was wearing the night before. His girlfriend is wearing the same pants and shoes as the day before, but a different hoodie. Based on this evidence, the Court finds Tenant's grandson and his girlfriend spent the night of February 15-16 in Tenant's Premises in violation of Paragraph 7 of the Amended Agreement.

On February 21, 2020, the video and photographic evidence clearly shows Tenant entering the building lobby and swiping her grandson and his girlfriend into the building at 9:34 PM. Her guests appear to be carrying food and beverages. The group is seen smiling and looking friendly. Tenant remains in their company as they exit the 5th floor elevator together at 9:35 PM and walk toward Tenant's Premises. The following day, the grandson's girlfriend is shown leaving the first floor elevator lobby at 4:43 PM wearing the same clothing as the night before. The Court finds the photographic evidence clearly shows Tenant granted her grandson and his girlfriend access to the Premises in violation of Paragraph 7 of the Amended Agreement.

Tenant admits allowing her grandson and his girlfriend to stay in her Premises overnight on a single occasion after the date of the Amended Agreement. There are no allegations that Tenant's grandson or his pregnant girlfriend did anything to cause a disturbance while they were there. Tenant's grandson has since secured a home with his girlfriend in Lakeville. Tenant argues that she is both elderly and disabled, she was taken advantage of by her family, and "one bad decision is not a substantial breach" of the Amended Agreement. The Court disagrees.

The Court finds that a preponderance of the evidence showed Tenant violated Paragraph 7 of the Amended Agreement twice in blatant disregard of the Amended Agreement, which agreement was signed with the benefit of counsel just one (1) month before. The Court finds that Tenant understood the clear and unequivocal provision of the Amended Agreement that prohibited her from having guests in the Premises between the hours of 9:00 PM in the evening to 7:00 AM in the morning "for any reason whatsoever." The Court rules that Tenant's actions constituted substantial violations of a material term of the Amended Agreement (¶7).

For these reasons, the Plaintiff's Motion is ALLOWED. Execution shall issue forthwith; however, Plaintiff shall not levy on the execution prior to May 29, 2020 provided Tenant complies with each and every term of the Amended Agreement for the duration of the stay. There shall be no further stays absent an agreement of the parties to return and re-issue the execution for possession prior to its expiration.

SO ORDERED.