Boston Housing Authority v. Cassio

• Decision Date: 31 July 1998
• Parties: BOSTON HOUSING AUTHORITY v. Barbara CASSIO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 128

697 N.E.2d 128

428 Mass. 112

BOSTON HOUSING AUTHORITY v. Barbara CASSIO.

Supreme Judicial Court of Massachusetts Suffolk.

Argued May 7, 1998.

Decided July 31, 1998.

Michael E. Malamut, Boston, for plaintiff.

Francis J. Hurley, South Boston, for defendant.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL and IRELAND, JJ.

WILKINS, Chief Justice.

On August 29, 1996, the plaintiff, Boston Housing Authority (BHA), and the defendant, a tenant of the BHA, entered into an agreement for judgment (sometimes the agreement) in favor of the BHA in the BHA's eviction action. The agreement provided that execution would not issue, however, unless a violation of any condition of the agreement thereafter occurred and, on motion of the BHA, a judge ordered that execution issue. Two weeks later, the BHA moved for the issuance of execution, contending that a condition of the agreement had been violated. See G.L. c. 239, § 10. A judge of the Boston Housing Court denied the motion. We transferred the BHA's appeal here. We vacate the order denying the motion for issuance of execution.

The judge made findings which include the following. Paragraph two of the agreement provided that the tenant would "assure that all household members, including but not limited to Christine Cassio [the tenant's then eighteen year old daughter], will refrain from harassment of other individuals lawfully on BHA property." Christine's earlier assault of another BHA resident led to the commencement of this BHA summary process action, resulting in the agreement for judgment. On September 9, 1996, less than two weeks after the agreement for judgment was entered, Christine used spray paint to write a racial epithet on a wall of a pathway in the BHA development.

The judge ruled that the tenant could be evicted only if she reasonably could have foreseen and prevented her daughter's unlawful conduct, citing Hodess v. Bonefont, 401 Mass. 693, 696-697, 519 N.E.2d 258 (1988). See Spence v. Gormley, 387 Mass. 258, 439 N.E.2d 741 (1982). The judge found that the tenant "was on notice and could have foreseen that Christine might engage in harassing conduct towards individuals lawfully on BHA property." He concluded further that "[t]here was no evidence presented at the hearing, however, that, short of removing her daughter from the apartment, [the tenant] could have prevented Christine's act of vandalism." ¹

The judge erred in applying the standard prescribed in those cases. Spence v. Gormley, supra, concerned the issue whether a housing authority tenant could properly be evicted because of the unlawful conduct of a household member, conduct that constituted grounds for eviction under the tenant's lease. Id. at 259-262, 439 N.E.2d 741. Because of the agreement for judgment entered in this case, the tenant's eviction was not subject to the principles of Spence v. Gormley, supra at 263-264, 439 N.E.2d 741, interpreting "cause" in G.L. c. 121B, § 32. The question before the judge was whether the tenant was "in substantial violation of a material term ... of the agreement for judgment." G.L. c. 239, § 10. To consider the question of eviction in this case only under G.L. c. 121B, § 32, concerning cause for eviction (see Boston Hous. Auth. v. Bell, 428 Mass. 108, 697 N.E.2d 130 [1998] ), would make nugatory the condition of the agreement on which the BHA relies, to which the tenant agreed, and which a judge approved.

The tenant assured the BHA that her daughter Christine would refrain from harassment of others lawfully on BHA property. Christine nevertheless did harass others lawfully on BHA property. The tenant's assurance was not that she would prevent such conduct if she could reasonably do so. It was that the conduct would not occur. The judge erred in denying the BHA's motion based on the tenant's inability to control or prevent...