Benchmark Apartment Management Corp. v. Mercer

No. 96-00949 (Mass. Hous. Ct. Jan. 3, 1997). ; Clearinghouse Number: 51557

Description

Federal Notice Requirements Preempt State Statute Allowing Automatic Termination of Tenancy Based on Allegations of Illegal Conduct

Abstract

The court has ruled that federal notice requirements governing Section 8 tenancies preempt the state nuisance forfeiture statute to the extent that it permits a landlord, including a federally subsidized one, to terminate a tenancy and commence an eviction action based upon allegations of illegal conduct by tenant without first complying with statutory written termination requirements. An argument between defendant tenant and another tenant resulted in the other tenant beating defendant repeatedly with a two-foot-long metal pipe so severely that defendant had to be taken to the hospital. Defendant, a trained security guard, struck back in self-defense once with her nightstick. Criminal charges were filed against the other tenant but not against defendant. Under the state nuisance forfeiture statute and without sending a notice to quit, plaintiff landlord sought to dispossess both tenants. The cases were sent to mediation, and both tenants signed an agreement to move out in 90 days. The judge to whom the agreement was brought for approval inquired only about its voluntariness, not about any of the underlying merits. Later, with legal counsel, defendant sought relief under Rule 60(b); she argued that 42 U.S.C. § 1437f(d)(1)(B)(iv) and 24 C.F.R. part 247 required a precommencement termination notice and preempted the state statute. The court held that by entering into the agreement defendant did not waive her right to written notice of termination and that a tenant could not knowingly and intelligently waive a right when she was not informed of her right. The court also noted that on the facts she might well have had a defense on the merits as well. While it did not find that the statute required it to conduct a trial on the merits in every subsidized housing case brought under it, the court did conclude that, before it approves an agreement in a case brought under this statute, a substantive judicial colloquy should take place to ensure that tenant’s rights were protected, particularly when tenant was unrepresented.

Additional Information

Attorney Information
Defendant represented by Dick Bauer, Stefanie Balandis, Josepha Parente (law student), Greater Boston Legal Services, 197 Friend St., Boston, MA 02114; (617) 371-1234.
Docket Date
1997-01-03 00:00:00+00:00