RHONDA PAYNE v. MICHELLE PAYNE, BOSTON REDEVELOPMENT AUTHORITY, and TD BANK.

Plaintiff Rhonda Payne, claiming in her own complaint that she has violated an affordable housing restriction by failing to occupy her condominium unit as her primary residence, and by deeding an interest in the unit to her sister, defendant Michelle Payne, without the required written consent of the Boston Redevelopment Authority (“B.R.A.”), seeks to void the deed to her sister in order to facilitate the sale of the unit in compliance with the affordable housing restriction.

After the filing of the complaint, the B.R.A. filed an answer and counterclaim against plaintiff Rhonda Payne, and a crossclaim against defendant Michelle Payne, seeking to have the deed from Rhonda Payne to Rhonda Payne and Michelle Payne voided. Subsequently, the B.R.A., unopposed by the plaintiff, but opposed by defendant Michelle Payne, moved for summary judgment, seeking an order voiding the deed from Rhonda Payne to Rhonda Payne and Michelle Payne. The B.R.A. also seeks an order that Michelle Payne vacate the unit. The B.R.A.’s motion for summary judgment was argued before me on February 22, 2016. At the hearing, the parties were given leave to file additional documents with the court by March 11, 2016. Specifically, the B.R.A. was given leave to file the correct amended affordable housing covenant referred to in the plaintiff’s deed, and defendant Michelle Payne was given leave to file an opposition to the motion for summary judgment, which, although represented by counsel, she had not filed prior to the hearing. In accordance with the leave granted at the hearing, the B.R.A. filed a copy of the amended affordable housing restriction referred to in Rhonda Payne’s deed, and Michelle Payne filed an opposition to the motion for summary judgment, including an affidavit of Michelle Payne. Rhonda Payne also filed an additional memorandum and an affidavit of Rhonda Payne “in response to”, but not in opposition to, the B.R.A.’s motion for summary judgment. Upon receipt of these documents, I took the motion under advisement on March 11, 2016. For the reasons stated below, summary judgment will enter for the B.R.A. and against the defendant Michelle Payne.

FACTS

The material undisputed facts pertinent to this motion for summary judgment are as follows:

1. Unit 3 of the Lawrence Court Condominium, located at 354 Columbus Avenue, Boston, (“Unit 3”) was deeded by New Boston Housing Enterprises, LLC to Rhonda Payne by a deed dated February 28, 2001, and recorded with the Suffolk County Registry of Deeds (“Registry”) in Book 26016, Page 025, for a stated consideration of $110,000.00.

2. The deed into Rhonda Payne conveyed Unit 3, one of three so-called affordable units at the Lawrence Court Condominium, subject to “the Covenant for Affordable Housing granted to the Boston Redevelopment Authority…dated October 4, 2000, and recorded at the..Registry…in Book 25506, Page 285.”

3. The Covenant for Affordable Housing (the “Covenant”) referred to in the deed to Rhonda Payne, is an exhibit to a document entitled, “First Amendment to Land Disposition Agreement”, recorded with the Registry in Book 25506, Page 281, governing the disposition by the B.R.A. of the land on which the Lawrence Court Condominium is constructed.

4. The Covenant provides a comprehensive procedure for the sale and resale of units designated as “affordable” units at the Lawrence Court Condominium, including Unit 3. The Covenant includes the following specific restrictions, among others:

5. Covenant: Owner-Occupancy. An Affordable Unit shall be occupied as an Owner’s principal residence. An Owner may lease an Affordable Unit only if the Owner obtains the prior written consent of the (Boston Redevelopment) Authority…

8. Certificate of Compliance. No conveyance, sale or transfer shall be valid and be deemed in accordance with the terms of this Covenant unless a certificate, or certificates, is obtained and recorded, signed and acknowledged by the Authority which refers to the Affordable Unit, the Owner thereof, and the Maximum Resale Price therefor, and stating that the proposed conveyance, sale or transfer is in compliance with this Covenant…

22. Enforcement. Without limitation on any other rights or remedies of the Authority, its successors and assigns, in the event of any rental or occupancy or sale or other transfer or conveyance of an Affordable Unit in violation of the provisions of this Covenant, the Authority shall be entitled to the following remedies, which shall be cumulative and not mutually exclusive:

g. any contract for sale or any sale or other transfer or conveyance of an Affordable Unit in violation of the provisions of this Covenant in the absence of a certificate from the Authority approving such sale, transfer or conveyance as provided in Section

8, to the maximum extent permitted by the law, shall be voidable by the Authority by suit in equity to enforce such agreements, covenants and restrictions.

5. Rhonda Payne has not resided in Unit 3 since at least 2006. [Note 1]

6. Rhonda Payne conveyed Unit 3 to herself and to her sister, Michelle Payne, as joint tenants, by a deed dated “this day of April, 2011”, notarized on April 28, 2011, and recorded in the Registry on August 1, 2011 in Book 47977, Page 151. While there is an immaterial dispute of fact concerning the circumstances of the execution of the deed, there is no dispute that the conveyance effectuated by the deed was without the benefit of a certificate of compliance from the B.R.A. as contemplated by Paragraph 8 of the Covenant.

7. Michelle Payne has been occupying Unit 3 for most of the last ten years, without the written consent of the B.R.A.

DISCUSSION

“Summary judgment is granted where there are no issues of genuine material fact, and the moving party is entitled to judgment as a matter of law.” Ng Bros. Constr. v. Cranney, 436 Mass. 638 , 643-44 (2002); Mass. R. Civ. P. 56(c). “The moving party bears the burden of affirmatively showing that there is no triable issue of fact.” Ng Bros., 436 Mass. at 644. In determining whether genuine issues of fact exist, the court must draw all inferences from the underlying facts in the light most favorable to the party opposing the motion. See Attorney Gen. v. Bailey, 386 Mass. 367 , 371, cert. denied, 459 U.S. 970 (1982). Whether a fact is material or not is determined by the substantive law, and “an adverse party may not manufacture disputes by conclusory factual assertions.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Ng Bros., 436 Mass. at 648. When appropriate, summary judgment may be entered against the moving party and may be limited to certain issues. Community Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

The purpose of the Covenant and others like it imposed on properties that are the subject of land disposition agreements by the B.R.A., is to reserve an appropriate number of housing units in private developments that have received some public benefit, often by reason of the conveyance of public land by the B.R.A., for the benefit of persons of low and moderate income. [Note 2] In the case of the Lawrence Court Condominium, which was the subject of a Land Disposition Agreement and a First Amendment to Land Disposition Agreement, both containing affordable housing covenants, three units, including Unit 3, were made subject to the Covenant. The Covenant provides for a maximum sale price for each affordable unit, a formula for determining maximum resale price for each affordable unit, and restrictions concerning the use and occupancy of the units. The restrictions include requirements that the unit be occupied as the principal residence of the owner, that the unit may be leased under certain circumstances, but only with the consent of the B.R.A., with a strict formula for maximum rent, and a requirement that the unit may be sold only to a buyer who qualifies, after making written application to the B.R.A., as a household with a certain maximum income. To enforce these various requirements, the Covenant provides that no conveyance of an affordable unit may be made without a certificate of compliance from the B.R.A. The Covenant further provides, among other remedies, that “any sale or other transfer or conveyance of an Affordable Unit in violation of the provisions of this Covenant in the absence of a certificate from the Authority approving the sale, transfer or conveyance…shall be voidable by the Authority by suit in equity to enforce such agreements, covenants and restrictions.” [Note 3]

The B.R.A. has, by its counterclaim against Rhonda Payne and its crossclaim against Michelle Payne, instituted such a suit in equity, and the plaintiff, Rhonda Payne, by her answer to the counterclaim, and by her complaint, admits her violations of the Covenant, with respect to her failure to occupy Unit 3, at least since 2006, and her conveyance of an undivided half interest in Unit 3 to her sister Michelle Payne, without obtaining a certificate of compliance from the B.R.A. For her part, Michelle Payne, admits that her sister Rhonda does not live in Unit 3, and in fact asserts that her sister “abandoned” the unit as long ago as 2003. She admits that, “[s]ince 2003, I have lived in the unit or been connected to the premises openly…” [Note 4] She claims to have an unwritten agreement with Rhonda Payne that she, Michelle, would take over the financial responsibility for the unit and that when the unit was sold they would split the net proceeds. [Note 5] None of these allegations, even if true, are material to the court’s decision. An agreement between the two sisters, written or oral, to violate the requirements of the Covenant, would not be enforceable as against the rights of the B.R.A. under the Covenant.

While essentially having to concede factually the violation of the Covenant by Rhonda Payne’s failure to occupy Unit 3, and by the conveyance of the unit without obtaining a certificate of compliance, Michelle Payne offers a series of equitable defenses to the enforcement of the Covenant, none of which are availing. These include the doctrines of estoppel, laches, unjust enrichment, unclean hands, and promissory estoppel.

In support of her claim of laches, Michelle Payne asserts, without claiming any first-hand knowledge, and without stating the basis of her understanding, that she “reasonably understood that (Rhonda Payne) had reported” the sisters’ arrangement to the B.R.A. [Note 6] I do not need to reach Michelle Payne’s arguments that the B.R.A. is barred in equity by the doctrine of laches, since she does not present any facts to the court from which it could be concluded that the B.R.A. knew of and failed for any unreasonable time to take action with respect to the admitted violations of the Covenant. “Laches is an ‘unjustified, unreasonable, and prejudicial delay in raising a claim.’ ... ’Laches is not mere delay but delay that works disadvantage to another.’ ...However, there can be no laches where ‘there is no knowledge of the wrong committed and no refusal to embrace opportunity to ascertain facts.’” Colony of Wellfleet, Inc. v. Harris, 71 Mass. App. Ct. 522 , 531 (2008) (internal citations omitted). Michelle Payne has failed to show, by any facts in the record, (other than her unavailing “reasonable understanding”), that the B.R.A. had any knowledge of the supposed agreement between her and her sister.

Even if Michelle Payne could show that the B.R.A. had knowledge of the sisters’ alleged agreement, I would, in any event, decline to invoke the doctrine of laches, where, as here, there is no showing that Michelle Payne relied to her detriment on any failure of the B.R.A. or that any such delay worked to her disadvantage. While asserting that she has been paying the cost of owning the unit, including mortgage and condominium fees, she acknowledges she has been living in the unit and does not offer any evidence that the costs she has incurred exceeded the fair rental value of the unit. With no showing of detriment, even had she shown knowledge and unexplained failure to act on the part of the B.R.A., which she has not, she would not be entitled to rely on laches to bar enforcement of the Covenant.

For the same reasons, her claims of unjust enrichment and her invocation of the doctrine of unclean hands are not defenses to the enforcement of the Covenant. Michelle Payne offers no facts to show that the B.R.A., or even her sister, has been unjustly enriched by her occupation of Unit 3 (even disregarding for the moment the undisputed fact that the mortgage she claims to have been paying is in default). The B.R.A. is not “unjustly enriched” by the enforcement of the Covenant, but rather, has been harmed by the years it has been unable to make Unit 3 available to a qualified buyer. Nor is there any suggestion in the record that the B.R.A. induced Michelle Payne to take over the costs of maintaining the unit for its benefit. There is also nothing in the record to suggest that Rhonda Payne has been unjustly enriched or that she benefitted from having her sister take over the costs of maintaining the unit, since the sale of the unit will be limited to the formula provided for in the Covenant, as it would have been had the unit been sold years ago, upon her decision to no longer occupy the unit. There is no windfall as a result of the delay, and in any event, where the delay is due at least in part to Michelle Payne’s own efforts to occupy, use and own Unit 3 in violation of the Covenant, she cannot claim her sister’s violation of the Covenant as a defense.

Michelle Payne also argues that the B.R.A. should be barred by the doctrine of estoppel from enforcing the Covenant. The B.R.A. is “a body corporate and politic established under G. L. c. 121, § 26QQ (as amended by St.1957, c. 150, § 1)…” Moskow v. Boston Redevelopment Authority, 349 Mass. 553 , 556 (1965). As is the case for other governmental agencies, the doctrine of estoppel is not available with respect to the actions of governmental officials even at autonomous governmental authorities in the exercise of their official duties. Phipps Products Corp. v. Mass. Bay Transp. Auth., supra, 387 Mass. at 693-694 (estoppel not available with respect to MBTA’s violation of bidding laws). Accordingly, the doctrine of estoppel is not available with respect to enforcement of the Covenant.

Notwithstanding her claim of an unwritten agreement between herself and her sister, Michelle Payne also may not rely on the doctrine of promissory estoppel, since, even assuming an agreement between Michelle Payne and Rhonda Payne, Michelle Payne does not allege any participation by the B.R.A. in the contract between the two sisters. She does not allege that the B.R.A. promised to allow the sale of Unit 3 to her, or that she relied to her detriment on any such promise. See, Loranger Construction Corp. v. E. F. Hauserman Co., 6 Mass. App. Ct. 152 , 155 (1978) (promissory estoppel is reliance “placed upon statements of future intent”).

CONCLUSION

For the reasons stated above, the B.R.A.’s motion for summary judgment is ALLOWED.

Judgment will enter in accordance with this Decision.