Opinion
19-P-735
05-05-2020
Janice STEVENSON v. TND HOMES I LLC.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Janice Stevenson, appeals from a Land Court judgment dismissing her complaint pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), on grounds of lack of standing and the preclusive effect of a prior Housing Court summary process judgment. We affirm.
Background. The key allegations of the complaint, filed in July 2018, were as follows. The defendant, TND Homes I LLC (TND), owns a residential building in Revere (property), in which Stevenson rented a unit beginning in 2012. The property is operated pursuant to the Federal Low Income Housing Tax Credit Program (LIHTCP). The LIHTCP requires that units be leased to tenants meeting certain income and asset requirements. Stevenson alleged that TND operated the property in violation of certain recorded restrictions and covenants (restrictions), including requirements for tenant eligibility recertification, property maintenance, and limits on evictions. She further alleged that TND had repeatedly sought to evict her in retaliation for her tenant activism. She sought declaratory and injunctive relief enforcing the restrictions.
TND moved to dismiss, asserting that Stevenson lacked standing and that many of the issues she raised had already been litigated between the parties in two consolidated Housing Court summary process actions in which TND had prevailed. TND attached to its motion a copy of the Housing Court's summary process decision after trial, and a copy of the related docket sheet showing that execution for possession and damages had issued to TND in August 2018. TND also attached a copy of the restrictions referred to in Stevenson's complaint.
See Jarosz v. Palmer, 436 Mass. 526, 530 (2002) (court may take judicial notice of court records in related case); Kilnapp Enters., Inc. v. Massachusetts State Auto. Dealers Ass'n, 89 Mass. App. Ct. 212, 213 (2016) (in considering motion to dismiss, judge, and reviewing court, may "consider materials not appended to the complaint, but referenced or relied upon in the complaint").
The judge dismissed the complaint, ruling that as "a former tenant who no longer resides at the property," 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." The judge concluded that the restrictions themselves provided that they were "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." Moreover, to the extent that Stevenson's complaint alleged that TND had violated the restrictions in her particular case, that issue had been litigated to final judgment in the Housing Court and could not be relitigated in this action.
The judge referred both to claim preclusion and to particular issues that had been actually litigated and decided adversely to Stevenson in the Housing Court, i.e., to issue preclusion. At the time he ruled, the judge did not have the benefit of the decision in Duross v. Scudder Bay Capital, LLC, 96 Mass. App. Ct. 833, 837-841 & n.12 (2020) (holding that, notwithstanding G. L. c. 239, § 7, summary process judgment could give rise to issue preclusion; noting possible question whether such a judgment could give rise to claim preclusion). In light of Duross, we address only issue preclusion.
Discussion. 1. Standing. Stevenson claims that the judge's standing analysis erred in three ways. First, she says, the Federal statute governing the LIHTCP requires that, in order to be eligible for a Federal low-income housing tax credit, the property's owner must agree with the relevant housing credit agency to allow "individuals who meet the income limitation applicable to the building ... (whether prospective, present, or former occupants of the building) the right to enforce in any State court" certain limitations on evictions. 26 U.S.C. § 42(h)(6)(B)(ii) (2018). But this language merely governs a building owner's eligibility for a Federal tax credit. If the building owner fails to agree with a housing credit agency to allow such building occupants to bring suit to enforce limitations on evictions, the statute suggests that the building owner may be ineligible for a Federal tax credit. That is a matter to be determined between the building owner, Federal tax and other authorities, and perhaps relevant State or local housing credit agencies. The statute on its face does not directly confer standing to sue on such occupants.
Second, Stevenson argues that a "regulatory agreement," assertedly recorded as document number 831500, provides in section 9.6 that any income-eligible individual, "whether a prospective, present, or former occupant[,] shall be entitled, for any breach of the provisions hereof, ... to enforce specific performance by the Grantor of its obligations under this Restriction in a court of competent jurisdiction." But we see no reference to any such recorded regulatory agreement in the complaint, nor is it reproduced in any of the three record appendices filed with us. We see no indication that Stevenson furnished, or made any argument based upon, this alleged agreement to the Land Court judge. Nor is there any indication that Stevenson objected to TND's assertion, adopted by the judge, that the applicable restrictions were the ones attached to TND's motion to dismiss, which contain a paragraph entitled in part, "No Third-Party Beneficiaries." Thus, Stevenson's argument based upon the claimed recorded regulatory agreement furnishes no basis to reverse the judge's standing-based ruling.
The closest the complaint comes is to refer to and paraphrase the Federal statute discussed above.
Third, Stevenson argues that she has standing by virtue of G. L. c. 184, § 32 ( section 32 ). That statute, as relevant here, generally provides (with emphasis added) that "no affordable housing restriction ... held by any governmental body or by a charitable corporation or trust ... shall be unenforceable on account of lack of privity of estate or contract or lack of benefit to particular land or on account of the benefit being assignable or being assigned to any other governmental body or to any charitable corporation or trust." Stevenson appears to argue that section 32 allows any person to enforce an affordable housing restriction, regardless of whether he or she is in privity of estate with the owner of an affordable housing property, and regardless of whether she is a party to the contract creating the affordable housing restriction.
In this case, the restrictions were created in a document executed by Revere Neighborhood Developers LLC (evidently a predecessor in interest of TND) "for the benefit of the Massachusetts Housing Investment Corporation [MHIC]." That document provides: "As a condition of the certain financing previously provided by MHIC, the Grantor has agreed that this Restriction be imposed upon the property."
Stevenson reads section 32 too broadly. Its purpose was not to dispense with ordinary standing requirements, but to supersede certain common-law limitations on the enforceability of the types of land use restrictions listed in the statute. Section 32 allows the enforcement of such restrictions by the governmental or charitable entity that holds the corresponding rights, even if that holder neither owns land benefited by the restrictions nor was a party to the agreement originally creating the restrictions. See generally Bennett v. Commissioner of Food & Agric., 411 Mass. 1, 3-4 & n.2 (1991) (discussing effect of section 32, in context of an agricultural preservation restriction [APR] ). Insofar as the statute applies to APRs, section 32 means that an APR "may be enforced only by [its] holders" and that "abutters have no standing" to do so. Prime v. Zoning Bd. of Appeals of Norwell, 42 Mass. App. Ct. 796, 803 (1997). By the same reasoning, section 32 allows enforcement of affordable housing restrictions by the holder of those restrictions, but section 32 does not confer enforcement standing on a former tenant of the housing covered by those restrictions.
Section 32 applies not only to affordable housing restrictions but also to certain restrictions for the purposes of "conservation ... agricultural preservation or watershed preservation," and restrictions for the preservation of "buildings or sites of historic significance." G. L. c. 184, § 32.
2. Issue preclusion. Even apart from Stevenson's lack of standing, the judge ruled that the Housing Court summary process decision and judgment were fatal to Stevenson's claims that TND had violated the restrictions in her particular case. In the summary process actions, Stevenson had raised as a defense that TND had failed to comply with rules for public and subsidized housing, including specifically that TND did "not have good cause to evict [her] as required by the lease and/or program rules." The Housing Court judge rejected these defenses, finding "no evidence that [TND] failed to comply with the terms of the [LIHTCP] or any restrictive covenants with respect to the setting of rents at [the property] generally and the defendant['s] apartment specifically." In particular, the Housing Court judge ruled that the eviction for nonpayment of rent was warranted, because her "rent was set in accordance with the LIHTC program rules," i.e., Stevenson had failed to pay "the established LIHTC[P]" rent. And, the judge ruled, the eviction for cause was warranted because Stevenson's failure to complete her annual LIHTCP recertification constituted "material noncompliance with the occupancy agreement."
Stevenson now appears to argue that the Housing Court lacked jurisdiction to make these rulings, which would mean that the resulting judgment was invalid and could have no issue-preclusive effect. She relies on G. L. c. 240, § 10A, which provides in pertinent part: "The superior court and the land court shall have concurrent jurisdiction of a civil action by any person or persons claiming [certain interests] in land subject to a restriction described in [ G. L. c. 184, § 26 ], to determine and declare whether and in what manner and to what extent and for the benefit of what land the restriction is then enforceable, whether or not a violation has occurred or is threatened." Because affordable housing restrictions are at least mentioned in G. L. c. 184, § 26, Stevenson argues that under G. L. c. 240, § 10A, only the Superior and Land Courts, and not the Housing Court, have jurisdiction to determine whether affordable housing restrictions such as those entered into by TND are enforceable.
"The doctrine of issue preclusion provides that when an issue has been actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties whether on the same or different claim" (quotation omitted). Jarosz, 436 Mass. at 530-531.
Affordable housing restrictions are actually mentioned in clause (c ) of G. L. c. 184, § 26, which lists exceptions to the coverage of § 26. For present purposes we need not decide whether that is sufficient to include affordable housing restrictions among those "described in" § 26, thus making such restrictions subject to G. L. c. 240, § 10A.
The short answer to this argument is that TND's Housing Court summary process actions did not seek any determination of the enforceability of any affordable housing restrictions. Rather, TND sought to, and did, establish that Stevenson had violated the terms of her occupancy agreement with TND. Thus, nothing in G. L. c. 240, § 10A, deprives the summary process judgment of issue-preclusive effect.
3. Other issues. Stevenson also claims that the judge erred in denying her request to endorse a memorandum of lis pendens. In light of our conclusion that the judge was correct in dismissing the complaint, the lis pendens issue is moot and need not be resolved. Finally, Stevenson's brief alludes in cursory fashion to claims of violation of various Federal and State constitutional provisions, as well as Federal civil rights statutes. These passing references do not meet the requirements for a developed argument set forth in Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1629 (2019). See Selmark Assocs. v. Ehrlich, 467 Mass. 525, 540 (2014) (applying standards for argument under former Mass. R. A. P. 16 [a] [4], as amended, 367 Mass. 921 [1975]). She is not entitled to relief on this ground.
Judgment affirmed.