Lowell Housing Authority v. Melendez

865 N.E.2d 741, 449 Mass. 34, 2007 Mass. LEXIS 274
CourtMassachusetts Supreme Judicial Court
DecidedMay 3, 2007
StatusPublished
Cited by8 cases

This text of 865 N.E.2d 741 (Lowell Housing Authority v. Melendez) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lowell Housing Authority v. Melendez, 865 N.E.2d 741, 449 Mass. 34, 2007 Mass. LEXIS 274 (Mass. 2007).

Opinion

Greaney, J.

On May 11, 2005, the defendant, armed with an eight-inch kitchen knife, assaulted and attempted to rob a patron in a convenience store located approximately one mile from the Lowell Housing Authority (LHA) development where he was a tenant.1 The LHA commenced a summary process action against the defendant under provisions of the lease requiring tenants to [35]*35refrain from certain criminal activity and authorizing termination by reason of criminal activity “that threatens the health, safety, or right to peaceful enjoyment of any LHA housing development by the other tenants.” A judge in the Housing Court awarded the LHA possession. The defendant appealed, claiming, essentially, that the criminal activity alleged did not occur on, or near, any LHA development and, therefore, could not threaten the health, safety, or right to quiet enjoyment of other tenants. A single justice in the Appeals Court stayed the judgment until the appeal could be decided, but the stay since has been vacated based on allegations of further criminal activity of the defendant. We transferred the case to this court on our own motion, and we now affirm the judgment of possession in favor of the LHA.

1. We first address LHA’s argument that this appeal is, for all practical purposes, moot. The argument is based on undisputed facts, set forth in the LHA’s motion to revoke the stay of execution on the judgment for possession, that, since the time of the trial, the defendant was arrested and charged, among other things, with armed robberies of three different banks. At oral argument, we were told that the defendant currently is serving sentences in Massachusetts, and, on his scheduled release, it is expected thereafter that he will be transported to New Hampshire to face another charge of armed robbery. If, and when, the defendant does return to Massachusetts, the LHA contends, he will, undisputably, be unqualified for public housing assistance due to the seriousness of his crimes. The defendant, not surprisingly, disagrees with the latter contention.

Although the LHA’s arguments are persuasive, we nonetheless address the issue raised. The question is an important one that is clearly capable of repetition, and, in fairness to public housing authorities in the Commonwealth, as well as to their tenants, it should be resolved. See Attorney Gen. v. M.C.K., Inc., 432 Mass. 546, 552 (2000). We now turn to the merits.

2. Paragraph 3.C of the operable lease requires the tenant:

“To refrain from criminal activity that threatens the health, safety, or right to quiet enjoyment of any LHA housing development by other tenants or any drug-related [36]*36criminal activity on or near any LHA housing development, engaged in by Resident, any member of the Resident’s household, or any guest or other person under the Resident’s control. A criminal arrest, prosecution or conviction of the activity described in this paragraph will not be necessary in order to sustain an eviction or termination of tenancy for cause under this lease.”

Paragraph 7.B.6 provides that the LHA may terminate the lease at any time for the following reasons:

“[Ejngaging in any criminal activity that threatens the health, safety, or right to peaceful enjoyment of any LHA housing development by the other tenants, which is committed by the Resident, any member of the Resident’s household, or any guest or other person under the Resident’s control.”

The judge concluded that the defendant had committed the crime of armed assault and attempted robbery and further found that the defendant’s “violent criminal act, committed in the same city, in this case about a mile from the public housing development where the defendant lives, is near enough to other public housing residents to threaten their health, safety, and quiet enjoyment.” On the basis of this conclusion, the judge found that the defendant’s eviction was not only warranted but compelled, and entered judgment for possession in favor of the LHA.

As has been stated, the judgment was stayed pending the defendant’s appeal. The following month, however, before the appeal was heard, the LHA filed a motion to revoke the stay with the single justice of the Appeals Court and, in support of his motion, filed an affidavit of the property manager of the defendant’s housing development informing the single justice that (1) the defendant had been arrested for three bank robberies committed subsequent to his eviction,2 and (2) that other tenants [37]*37in the housing development, reading of the arrests in local newspapers, had expressed serious concerns for their own safety. The LHA’s motion to revoke the stay was allowed, and the defendant subsequently vacated the housing premises.

The defendant does not challenge the judge’s findings of fact (as described in the opening sentence of this opinion). He only disputes the judge’s conclusion that the facts are sufficient to permit the termination of his lease. The defendant contends that the criminal activity in which he engaged could not threaten the “health, safety, or quiet enjoyment” of other tenants because it took place nearly a mile away from the LHA housing development where he lived. Any threat to the other tenants, according to the defendant, was a physical impossibility. The LHA, on the other hand, takes the position that Congress intended to exclude violent criminals from public housing, a broad intention that is supported by the lease requirements mandated by 42 U.S.C. § 1437d (F)(6) (2000), and by the lease provision that termination need not depend on an arrest. The LHA argues that the term “any criminal activity” is broad and that the term “threatens” implies a measure of discretion. We agree with the LHA.

In 1996, Congress enacted 42 U.S.C. § 1437d (F)(6) (colloquially, the “one strike and you’re out” statute) as an anticrime measure in keeping with Federal policy “to assist States and political subdivisions of the States to remedy the unsafe housing conditions and acute shortage of decent and safe dwellings for low-income families.” 42 U.S.C. § 1437 (a)(1)(A) (2000). The statute provides for the eviction of tenants living in housing projects funded by the Federal government, or otherwise receiving Federal housing assistance, if they, or any guest or visitor under their control, engage in certain types of criminal activity on, and in some cases, off, the public housing premises. Section 1437d (F)(6) requires:

“Each public housing agency shall utilize leases which . . . provide that any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug-related criminal [38]*38activity on or off such premises, engaged in by a public housing tenant, any member of the tenant’s household, or any guest or other person under the tenant’s control, shall be cause for termination of tenancy.”

See 24 C.F.R. § 966.4(f)(12) (2006) (also requiring every public housing lease to contain terms set forth in § 1437d [/] [6]).

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Bluebook (online)
865 N.E.2d 741, 449 Mass. 34, 2007 Mass. LEXIS 274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lowell-housing-authority-v-melendez-mass-2007.