Diliddo v. Oxford Street Realty, Inc.

Decision Date15 November 2007
Docket NumberSJC-09962.
Citation876 N.E.2d 421,450 Mass. 66
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Zaheer A. Samee, Cambridge (Robert G. Burdick with him) for the plaintiff.

Christian G. Samito, Boston, for the defendants.

The following submitted briefs for amici curiae:

Jane E. Willis, Chanel R. Dalal, James W. Cobb, & Nadine Cohen, Boston, for The Fair Housing Center of Greater Boston, Inc.

Caitlin A. Sheehan for Massachusetts Commission Against Discrimination.

Susan Ann Silverstein & Michael Schuster, of the District of Columbia, & Jonathan Mannina, Faye Rachlin, & Alan Jay Rom for AARP & another.

Martha Coakley, Attorney General, & Maura T. Healey & Zoë Stark, Assistant Attorneys General, for the Commonwealth.



Massachusetts law prohibits landlords from discriminating against tenants who receive public housing subsidies either "because the individual is such a recipient," or "because of any requirement" of the subsidy program. G.L. c. 151B, § 4(10).2 We consider in this case whether, consistent with that statute, a landlord may refuse to rent an apartment to a participant in a subsidy program for temporary housing because the landlord considers the termination provisions of a form lease provided by the subsidizing agency to be economically disadvantageous. Specifically, the plaintiff, Lori DiLiddo, a housing subsidy recipient, appealed from the entry of summary judgment in the Superior Court against her and in favor of the landlord's agent, Oxford Street Realty, Inc. (Oxford), and its principal, Jeffrey W. Indeck.3 We transferred the appeal from the Appeals Court on our own motion.

For the reasons discussed below, we conclude that the lease termination provision at issue was a "requirement," G.L. c. 151B, § 4(10), of the alternative housing voucher program (AHVP), the program that provided a housing subsidy to DiLiddo. We further conclude that, where the Legislature has exercised its authority to set the balance between the protection of landlords' interests and the need for affordable housing, the defendants' refusal to agree to the provision violated the strictures of G.L. c. 151B, § 4(10). We reverse the denial of the plaintiff's motion for partial summary judgment, vacate the order granting summary judgment to the defendants, and remand the case to the Superior Court for entry of judgment in favor of the plaintiff as to liability, and for further proceedings consistent with this opinion.4

1. Background. We first summarize the provisions of the AHVP, the subsidy program for temporary housing at issue in this case. The program was established following the abolition of rent control in the Commonwealth by popular initiative. See St.1995, c. 179, § 16 ("An Act improving housing opportunities for elders and non-elderly persons with disabilities"). The statute called on the Executive Office of Communities and Development, now the Department of Housing and Community Development (department), to "establish and administer a transitional rental assistance program" for "eligible and qualified handicapped persons of low income," and to promulgate rules and regulations to implement the program (emphasis added). Id. The statute specifies that program participants pay a monthly rent on a rental unit limited to between twenty-five and thirty per cent of their income,5 with the department paying the remainder of the costs of the unit. Id. Consistent with the transitional nature of the subsidy, the statute also provides that "all participants in the program shall be required, as a condition of their participation ... to accept suitable permanent affordable housing in accordance with regulations established by [the department] once such housing becomes available" (emphasis added). Id.

Pursuant to the enabling statute, the department created the AHVP, see 760 Code Mass. Regs. §§ 53.00 (1996), limiting eligibility to nonelderly, low income, handicapped persons. See 760 Code Mass. Regs. § 53.03. Among the requirements of program participation is that, "[w]hen a Participant chooses or is required to move, the Participant shall give a calendar month's written notice to the [local agency administering the program] and to the Owner or Owner's Agent." 760 Code Mass. Regs. § 53.07. The regulations also impose certain conditions on landlords, including that landlords provide "certification from the Local Board of Health or other local code enforcement entity that the unit is in compliance with Article II of the State Sanitary Code and (if applicable) a certification from a Certified Lead Inspector that the contract unit is in compliance with applicable lead paint law." Id.6

To administer the program, the department created a standard form lease to be signed by all landlords and tenants participating in the program (AHVP lease). Under the AHVP lease, tenancy is for a term of one year and is automatically extended from year to year unless either the landlord or the tenant gives sixty days' notice of election not to renew the lease. The AHVP lease does not allow either the landlord or the tenant to terminate the lease early, except for certain enumerated reasons that constitute "good cause." In those cases, a landlord may terminate the lease on thirty days' notice, and a tenant on one month's notice. Among the circumstances that constitute "good cause" under the AHVP lease are "when the Tenant becomes a participant in another housing subsidy program, or when the tenant secures Suitable Permanent Housing, as defined" in 760 Code Mass. Regs. § 53.02.7,8 To further implement the transitional program, the department created an AHVP voucher, which every participant in the program must sign. The voucher requires participants to "[a]ttempt to locate other suitable housing for which [the] AHVP subsidy is not necessary." If a participant succeeds in securing suitable permanent affordable housing, the statute provides that her AHVP subsidy may be made available to the next eligible AHVP applicant. St.1995, c. 179, § 16. The voucher and standard form lease each specify that the AHVP participant must give one calendar month's notice to both the landlord and the housing authority if suitable permanent housing is found.

The amount of funding made available by the Legislature for the AHVP program has varied from year to year. In 1996, for example, the AHVP program administered as many as 784 vouchers. In 2005, the AHVP served fewer than 236 households.

We turn now to the facts of this case. In the Superior Court, the plaintiffs and the defendants filed cross motions for summary judgment. Summary judgment entered in favor of the defendants from which DiLiddo appealed. Because the standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the respective nonmoving party, "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law," Mass. R. Civ. P. 56(c), as amended, 436 Mass. 1404 (2002); Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991), we summarize the facts in their light most favorable to DiLiddo. See Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624, 626, 536 N.E.2d 1067 (1989) ("we look at the materials available to the judge for summary judgment purposes in the light most favorable to the [nonmoving party] to see whether, as a matter of law, they support a claim").

DiLiddo, who was disabled after an automobile accident in 1994, was issued an AHVP voucher by the Cambridge Housing Authority in April, 1998. In late May, 1998, DiLiddo viewed an apartment located at 2 Belvedere Place, in Cambridge. Marie Doubleday, a real estate agent (agent) working for Oxford, showed her the unit. DiLiddo was accompanied by Lisa Hartnett a housing advocate from CASCAP, Inc., a local nonprofit agency that worked to help AHVP voucher holders locate suitable apartments. The owner of the building at 2 Belvedere Place was Lillian Pepi. Oxford was the property manager of the building, responsible for locating, identifying, interviewing, and selecting tenants. After returning to Oxford's offices with Hartnett and the agent, DiLiddo expressed interest in renting the unit, and informed the agent that she held an AHVP voucher. The agent informed DiLiddo that she could rent the unit, and Oxford accepted a fee of $750 from DiLiddo for locating the apartment. Subsequently, Oxford mailed DiLiddo a "welcome to your apartment" letter.

At the time that Oxford offered DiLiddo the unit, Indeck testified, he and his company were aware that DiLiddo intended to use her AHVP voucher to pay the rent. Oxford nevertheless required that DiLiddo herself pay the rent for the first month, beginning June 1, because the first AHVP voucher payment was not expected until July 1. DiLiddo agreed to do so, and to be reimbursed by the landlord after the first voucher payment was processed.

On June 5, 1998, Hartnett sent Indeck a copy of the AHVP lease. Indeck was not familiar with the AHVP form lease, although he was familiar with the form lease required under the so-called "Section 8" Federal housing subsidy program. See 42 U.S.C. § 1437f (2006). After consulting with two attorneys and with Pepi's son, Indeck concluded that several of the AHVP form lease provisions were, he testified, "unreasonable and excessive." Specifically, Indeck objected to the provisions of the AHVP lease that would terminate the lease on one calendar month's notice "when the Tenant becomes a participant in another housing subsidy program, or when the Tenant secures Suitable Permanent Housing, as defined" in 760 Code Mass. Regs. § 53.02. Indeck testified at his deposition that he believed that these provisions placed an "unreasonable" burden on landlords. Indeck also...

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