Morello v. Boston Rent Control Board

436 N.E.2d 425, 14 Mass. App. Ct. 27, 1982 Mass. App. LEXIS 1352
Massachusetts Appeals Court·Decided June 14, 1982·Published·Cited by 3 cases

Opinion

Perretta, J.

On April 29, 1980, the defendant board promulgated a condominium conversion eviction regulation which, by § 7(A) (2) (b), requires a landlord who had served tenants with conversion eviction notices prior to the promulgation of the regulation to file copies of those notices with the board within forty-five days after the effective date of the regulation, April 29, 1980.1 Section 7(A) (2) (c) provides that a failure to file the copies “shall render such [28]*28notices ineffective.” (The pertinent provisions of § 7 of the regulation have been set out in an appendix to this opinion.) The landlord had served his tenants with conversion eviction notices on or about January 30, 1980, but he did not file copies with the board in a timely manner. In September of 1980, the landlord sought the board’s permission to file the copies, but the board advised him that it had no discretion in the matter and that the notices were ineffective. The landlord then brought an action in the Superior Court under G. L. c. 231A, seeking a determination that § 7(A)(2)(c) could not be applied to the property in question. The action was transferred to the Boston Housing Court (see G. L. c. 185C, § 20), where the parties filed cross motions for summary judgment. There being no facts in dispute, the judge concluded, and entered a judgment declaring, that § 7(A) (2) was “not validly applicable” to the landlord’s property at issue. We modify the judgment to declare that § 7 (A) (2) (c) of the condominium conversion eviction regulation of the Boston Rent Control Board is invalid, and we affirm the judgment as modified.

1. The Enabling Ordinance.

On December 27, 1979, the city council of Boston enacted c. 37 of the Ordinances of 1979 (the Ordinance), entitled “Regulating Evictions for Condominium Conversions.” Prior to the Ordinance, condominium conversion evictions had been regulated by c. 15 of the Ordinances of the City of Boston (1975), Boston’s rent control law. While c. 15 regulates certain residential rents and evictions, it makes no procedural distinction between evictions in general and condominium conversion evictions in particular. See c. 15, § 8(a) (ix) and (x), § 8(b), and § 8(e). Cf. Zussman v. Rent Control Bd. of Brookline, 367 Mass. 561, 562 (1975). However, as noted in the preamble to the Ordinance, § 200, condominium conversion evictions result in suffering for those many tenants who are faced with imminent displacement and must quickly relocate but who have limited choices because of their finances and age. The stated purpose of the Ordinance is to avoid discouraging condominium conver[29]*29sions while at the same time protecting tenants from hardship by affording them more time than that provided under c. 15, § 8, to make new living arrangements.2

The intent of the Ordinance is given effect by § 204, which precludes a landlord from recovering possession of a housing accommodation for condominium conversion purposes until the expiration of the tenant’s housing agreement or until one year after the date the tenant receives written notice of the termination of the tenancy, whichever is later. A two-year notice period is required for tenants who have attained the age of sixty-two years on or before the date of receipt of the notice or who are physically handicapped and economically limited, as specified in § 204. Additionally, the landlord must record a master deed under G. L. c. 183A prior to or within the notice period.

The notice requirements established under § 204 are specific. The landlord must serve the tenant personally or by certified mail, and he “shall advise the tenant of the rights and procedures available under this ordinance, including if applicable, a statement of such tenant rights and procedures available under the rules of the board.”

[30]*30Upon the expiration of the notice period, the landlord must furnish the board with proof of compliance with all the provisions regulating condominium conversion evictions. If the board finds that the landlord’s proof is valid and that he has complied with the provisions of the Ordinance, “a certificate of eviction shall be issued.”

2. The Landlord’s Notices.

A master deed had been recorded for the premises on or about November 5, 1979, converting the housing accommodation, which was and continues to be subject to c. 15, into a condominium under G. L. c. 183A. Subsequent to the effective date of the Ordinance but prior to the promulgation of the regulation, the landlord sent the notices to his tenants.3 When the landlord became aware of the regula[31]*31tian in August, 1980, which was beyond the time period established in § 7(A) (2) (b), he wrote to the board seeking permission to file copies of the notices, which he enclosed. He stated that these notices were in compliance with the Ordinance and the regulation and that his only misstep in the procedures had been his failure to comply with § 7(A) (2) (b) by filing copies with the board. The board advised the landlord in writing, with copies of its response to the landlord’s tenants, that § 7(A) (2) (c) “is mandatory, leaving the Board without any discretion in the matter,” and that the notices were “ineffective and should not be relied upon for purposes of condominium conversion eviction.” As of the date of argument before us, only one tenant has remained on the premises.

3. The Validity of the Regulation.

In considering the validity of § 7(A) (2) (c), we look first to the scope of authority conferred upon the board by the Ordinance, keeping in mind that the board is limited to “only those powers which are expressly conferred by statute or [32]*32necessarily implied from those expressly conferred,” Church v. Boston, 370 Mass. 598, 601 (1976), but that a “regulation may be authorized even where it cannot be traced to specific statutory language.” Grocery Manufacturers of America, Inc. v. Department of Pub. Health, 379 Mass. 70, 75 (1979). Moreover, where an agency is given the responsibility “to effectuate the purposes of an act ‘the validity of a regulation promulgated thereunder will be sustained so long as it is “reasonably related to the purposes of the enabling legislation.”’” Levy v. Board of Registration & Discipline in Medicine, 378 Mass. 519, 524 (1979).

The regulation in issue was promulgated under § 210 of the Ordinance, which states in pertinent part: “Nothing in this ordinance shall be construed as giving the board any additional powers other than those specifically set forth herein and those exercised by the board in accordance with section 205 and section 2(c) of Chapter 15 of the Ordinances of 1975, as amended, as they relate to the eviction of tenants for the purposes of condominium conversion.” Section 205 gives the board “the power and duty to enforce” the Ordinance, and c. 15, § 2(c), confers upon the board the power “to promulgate such . . . regulations ... as will further the provisions of this ordinance.”4

We do not view the scope of the board’s authority as having the breadth of that found in such cases as: Consolidated Cigar Corp. v. Department of Pub. Health, 372 Mass. 844, 847 (1977) (G. L. c. Ill, § 128H, as amended by St. 1971, c.

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Morello v. Boston Rent Control Board, 436 N.E.2d 425, 14 Mass. App. Ct. 27, 1982 Mass. App. LEXIS 1352 (Mass. Ct. App. 1982).

436 N.E.2d 425 (Morello v. Boston Rent Control Board) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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