MISC 18-000359

March 11, 2019

Suffolk, ss.



Before me is the defendant's motion to dismiss. Defendant TND Homes I, LLC argues that this case should be dismissed pursuant to Mass. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted. Defendant calls for dismissal of the case asserting that: (1) plaintiff lacks standing to enforce the underlying restrictions and covenants, and (2) plaintiff's case is barred by the doctrine of res judicata. I agree with the defendant's position, allow its motion, and direct entry of a judgment dismissing this complaint.


This is an action under G.L. c. 240, §§ 10A - 10C, in which plaintiff Janice Stevenson ("Stevenson" or "plaintiff") seeks to enforce restrictions and covenants entered into by the defendant TND Homes I, LLC ("TND Homes") with the local housing authority.

TND Homes is the owner of a seven-unit residential property at 17 Walden Street, Revere, Massachusetts. The property is operated pursuant to the requirements of the federal Low Income Housing Tax Credit ("LIHTC") program. LIHTC rules require that the units be leased to tenants who meet certain income and asset limitations. Stevenson was a tenant at 17 Walden Street.

TND Homes brought two summary process complaints against Stevenson: the first action in the Chelsea Division of the District Court Department in April, 2017, seeking to recover possession of the premisses for non-payment of rent, and the second action in the Housing Court Department in November, 2017, seeking to recover possession based on noncompliance with the income recertification provisions of the occupancy agreement. The two actions were consolidated for trial, conducted jury-waived on April 3 and 4, 2018, before the Honorable Jeffrey M. Winik. The Housing Court in Boston (the Eastern Division of the Housing Court Department) entered judgment against Stevenson and awarded possession and monetary damages to TND Homes. [Note 1]

Stevenson filed this action in this court on July 13, 2018. In her complaint, Stevenson seeks to enforce certain recorded land restrictions that were entered into by TND Homes, including issues relating to habitability of the premises, use restrictions, and the tenant recertification process. A case management conference was held September 6, 2018, at which Stevenson appeared pro se and Attorney Jackowitz appeared for TND Homes. The court, upon oral motion by Stevenson, allowed her to withdraw a related petition for mandamus pursuant to G.L. c. 249, § 5, which Stevenson had attempted initially to file in this action. Stevenson later filed a separate action styled in the nature of mandamus in this court; Stevenson subsequently dismissed that separate action voluntarily. [Note 2] TND Homes filed on August 10, 2018 a motion to dismiss this case. The court held a hearing on that motion to dismiss on October 23, 2018, at which Stevenson and Attorney Carman appeared and argued.


In assessing the adequacy of a complaint, courts read the complaint's factual allegations generously and in the plaintiff's favor. To withstand a motion for dismissal sought under Mass.R. Civ. P. 12(b)(6), the factual allegations "must be enough to raise a right to relief above the speculative level." Iannacchino v. Ford Motor Co., 451 Mass. 623 , 636 (2008), quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Courts therefore look to see whether there are in the complaint "allegations plausibly suggesting (not merely consistent with) an entitlement to relief, in order to reflect[] the threshold requirement of [Mass.R.Civ.P.] 8(a)(2)[, 365 Mass. 749 (1974),] that the plain statement possess enough heft to sho[w] that the pleader is entitled to relief." Id. (citations omitted).

When evaluating a motion to dismiss, the court may consider, in addition to the complaint, exhibits and other matters fairly incorporated within it and matters susceptible to judicial notice, without converting the motion to dismiss into a motion for summary judgment. Marram v. Kobrick Offshore Fund, Inc., 442 Mass. 43 , 45 (2004). The court may take into consideration "matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint ..." Schaer v. Brandeis Univ., 432 Mass. 474 , 477 (2000); Reliance Ins. Co. v. Boston, 71 Mass. App. Ct. 550 , 555 (2008). "Properly considered public records include the records of other courts in related proceedings, of which the judge may take judicial notice in any event." Reliance Ins., 71 Mass. App. Ct. at 555; Brookline v. Goldstein, 388 Mass. 443 , 447 (1983). For purposes of the pending motion to dismiss, the court properly may consider the records of prior lawsuits relating to the locus.

Even read as indulgently as the rule and applicable decisional law require, the allegations in Stevenson's complaint do not plausibly demonstrate that she is entitled to relief. First, Stevenson lacks standing to enforce the agreement setting up the restrictive covenants--as a "third-party beneficiary" or otherwise--because she is neither a successor nor assignee of the grantor or holder of the restrictions. [Note 3] The "Affordable Housing Restriction," recorded in the Suffolk Registry of Deeds in Book 55411, Page 23, and attached to defendant's motion as Exhibit E, provides at paragraphs 15 and 19 that the restrictions are binding only upon the grantor and holder (and their successors), and that there are no third-party beneficiaries who are to benefit from the restrictions. Stevenson, a former tenant who no longer resides at the property, lacks standing to enforce restrictions in a recorded instrument to which she is not a party and which announces a lack of standing in others to enforce the restrictions.

Second, even if Stevenson could maintain a private cause of action, her claims are barred by the doctrine of res judicata. In Massachusetts, claim preclusion "makes a valid, final judgment conclusive on the parties and their privies, and prevents relitigation of all matters that were or could have been adjudicated in the action." Kobrin v. Board of Registration in Medicine, 444 Mass. 837 , 843 (2005)(internal quotation marks omitted); Bagley v. Moxley, 407 Mass. 633 , 636 (1990). The three elements of claim preclusion are: 1) the prior action must have produced a final judgment on the merits; 2) the parties to the prior and present actions must either be identical or in privity; and 3) the causes of action must be the same. Kobrin, 444 Mass. at 843; DaLuz v. Dep't of Correction, 434 Mass. 40 , 45 (2001); Bui v. Ma, 62 Mass. App. Ct. 553 , 561 (2004). The moving party bears the burden of establishing each of these factors. Sarvis v. Boston Safe Deposit & Trust Co., 47 Mass. App. Ct. 86 , 99 (1999).

There is no doubt that defendant has satisfied the first and second elements: TND Homes and Stevenson were parties to the summary process actions in the Boston Housing Court, which issued a final judgment on the merits. As to the third element as well, I find that the defendant has met its burden.

Stevenson's complaint seeks a declaration from this court that TND Homes "is required to rent all the apartments at the property to Qualified Low-Income Tenants; and comply with all of the requirements of the Declaration and the Program . . ." See Plt. Compl. at 9. She also seeks an injunction prohibiting TND Homes from charging certain rents and "evicting tenants without cause . . ." Id. At their core, Stevenson's claims in the instant matter and her affirmative defenses and counterclaims in the summary process actions concern the same essential facts and alleged violation of legal rights.

Moreover, the issue of cause for Stevenson's termination of possession was litigated previously--and to a final result adverse to Stevenson--in the Housing Court. Stevenson was evicted for cause: she did not pay "any rent to [TND Homes] for the fourteen (14) month period from March 2017 and [sic] April 2018. The amount of unpaid rent total[ed] $13,706.00." TND Homes I LP v. Stevenson, Boston Hous. Ct., No. 17H84SP004588 and No. 17H84SP005042, at 3 (Apr. 13, 2018).

As to Stevenson's claim that TND Homes violated the relevant restrictions, that issue, central to the case she now advances in the Land Court, also has been determined with finality in the prior litigation to which Stevenson was party. The Housing Court judge specifically found: "[t]here is no evidence that the plaintiff failed to comply with the terms of the LITHC program or any restrictive covenants with respect to the setting of rents at 17 Walden Street generally and the defendants' apartment specifically." Id. So, even assuming, contrary to the determination this court is compelled to make, that Stevenson would have any standing to seek judicial review and enforcement of allegations of failure to follow the restrictive covenants, her allegations of violation of those covenants have been considered and disposed of adversely to her in the now final Housing Court proceedings. [Note 4]


Having been afforded ample opportunity to dispute the validity of her eviction and TND Home's compliance with the LIHTC program and restrictive covenants, Stevenson now is barred from relitigating those claims. And, in any event, they are claims which she lacks standing to advance in the case now pleaded here in the Land Court. I will direct entry of a judgment dismissing the complaint, as to all counts, with prejudice.

Judgment accordingly.


[Note 1] TND Homes I LP v. Stevenson, Boston Hous. Ct., No. 17H84SP004588 and No. 17H84SP005042 (Apr. 13, 2018).

[Note 2] Stevenson v. TND Homes I, LLC, No. 18 MISC 000461 (GHP).

[Note 3] Upon review of the verified complaint, pleadings, and memoranda of law, I also find that Stevenson lacks the right and the standing to bring the claims relating to the enforcement of restriction and habitability as a class action because these claims are not typical of a class and stem mainly from the summary process actions in the Boston Housing Court. "The decision to grant or deny class status under [Mass. R. Civ. P. 23] is within the broad discretion of the motion judge." Weld v. Glaxo Wellcome Inc., 434 Mass. 81 , 84 (2001); see also Brophy v. School Comm. of Worcester, 6 Mass. App. Ct. 731 , 735 (1978).

[Note 4] To the extent Stevenson seeks to litigate afresh in the Land Court the validity, meaning and effect of the restrictive covenants on grounds that they affect the title to land whose title is registered land (meaning that the title has been registered and confirmed by this court), and so involves an issue exclusively within this court's subject matter jurisdiction, see G.L. c. 185, s. 1 (a ½), that argument fails. First, and fundamentally, the assertion that the 17 Walden Street property has a registered land title simply is not supported. Second, even if that property had a registered title, the notion that the Housing Court judge lacked the subject matter jurisdiction to read and apply the provisions of those covenants in hearing and deciding the summary process case before him lacks merit. The complaint for possession did not involve the Housing Court is entering a judgment altering or affecting in any record way the registered title to the Revere residential property. Cf. Feinzig v. Ficksman, 42 Mass. App. Ct. 113 , 116 (1997) noting that a "judge [of a court other than the Land Court] may not fashion a judgment which has the effect of imposing an encumbrance on the registered title. . ." but may act with respect to land the title to which is registered, and enter an appropriate judgment consistent with that registered title, as, for example, ordering "the discontinuance of a trespass on registered land...." Id. at 115 - 116. Nothing in the Housing Court case required the judge in that court to impose any encumbrance on a registered title, or to fashion a judgment which altered the record title to any registered land.