Gentile v. Rent Control Bd. of Somerville

• Decision Date: 22 May 1974
• Citation: 312 N.E.2d 210,365 Mass. 343
• Parties: Anthony P. GENTILE v. RENT CONTROL BOARD OF SOMERVILLE et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 210

312 N.E.2d 210

365 Mass. 343

Anthony P. GENTILE v. RENT CONTROL BOARD OF SOMERVILLE et al. ¹

Supreme Judicial Court of Massachusetts, Middlesex.

Argued March 6, 1974.

Decided May 22, 1974.

John L. Mason, Jr., Somerville, for plaintiff.

Andrew E. Bram, Cambridge, for the Rent Control Board of Somerville.

Before REARDON, QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

WILKINS, Justice.

This appeal requires an interpretation of certain provisions of the Rent Control Act (St.1970, c. 842), an act which permits the control of rents and evictions in cities and certain towns which accept its provisions. See St.1970, c. 842, § 2. The plaintiff, a tenant in an apartment subject to rent control in the city of Somerville, contends that the Rent Control Board of Somerville (board) was not lawfully authorized to issue a certificate of eviction in favor of his landlord and that the board had a constitutional obligation to conduct an adversary or 'trial-type' hearing before issuing that certificate of eviction. This proceeding was presented to the Superior Court on a statement of agreed facts, constituting a case stated. The plaintiff appeals from a final decree declaring that the eviction certificate was validly granted and that the plaintiff was not deprived of any rights by the board.

The essential facts are as follows. About May 19, 1971, the plaintiff's landlord (the landlord) filed with the board an application for a certificate of eviction against the plaintiff (the tenant). He stated that the tenant was 'always behind' and that the rent was due on the first of the month. About May 24, 1971, the tenant, after service of notice of the application, filed a 'tenant's response form' with the board in which he stated that his rent was paid up to July 1, 1971; that he had been unable to make timely rent payments in the past because of his hospitalization and inability to work; that his landlord understood the situation and consented to late rent payments; and that the threat of eviction was raised by the landlord only after a disagreement stemming from the tenant 'rolling back his rent in accordance with . . . (c. 842).' The board requested the landlord to advise it whether the rent had been accepted up to July 1, 1971. On June 9, 1971, the landlord replied to the board that he had not agreed to tardy rent payments; that he had monthly commitments to a bank; that the May and June rent payments were made after the tenant had received notice of the application for an eviction certificate 'just to be able to say he had his rent paid.' The landlord accompanied his response with a schedule showing that rent payments had been late for each month since February, 1970. In the statement of agreed facts, the tenant admits making late rent payments 'nearly every month from June of 1970 until May of 1971,' when the application for a certificate of eviction was filed. It is also agreed that the landlord sent an eviction notice in September, 1970, but withdrew it on receipt of his rent. There was no agreement in the statement of agreed facts that the landlord acceded to the late payment of rent. The date Somerville accepted the Rent Control Act does not appear in the statement of agreed facts.

On June 9, 1971, at a regularly scheduled meeting of the board, the board granted a certificate of eviction to the landlord. The tenant received to notice of the supplemental information filed by his landlord and had no opportunity to respond. No statement of reasons or findings of fact were given to the tenant. The board acted on the documents submitted by the landlord and the tenant without conducting any hearing. ²

On or about August 16, 1971, the landlord commenced a summary process action in the District Court of Somerville, and a finding for the landlord was made on August 26, 1971. The tenant appealed to the Superior Court (see G.L. c. 239, § 5), where the action is still pending.

On or about September 3, 1971, the tenant filed this proceeding in the District Court of Somerville (see St.1970, c. 842, § 10) challenging the granting of the certificate of eviction. In November, 1971, a judge found for the board. After a report to the Appellate Division of the District Court was dismissed for lack of jurisdiction, the tenant appealed to the Superior Court where, as indicated previously, a decree adverse to him was entered. ³

The tenant argues that no certificate of eviction should have been issued because late payment of rent, even chronic late payment of rent, is not a statutory ground for the issuance of such a certificate. Clearly under the Rent Control Act a certificate of eviction may be issued by a rent control board only if one or more of the ten circumstances described in § 9(a) of the act exist. Of these ten circumstances only two are arguably applicable here. Subsection (1) of § 9(a) would allow the issuance of a certificate of eviction if 'the tenant has failed to pay the rent to which the landlord is entitled.' Subsection (10) would allow such an issuance if 'the landlord seeks to recover possession for any other just cause, provided that his purpose is not in conflict with the provisions and purpose of this act.' The tenant argues that his rent was paid up when the certificate of eviction was issued and that late payment of rent cannot have been intended by the Legislature as a ground for eviction from a controlled rental unit.

We believe that the tenant's failure to pay rent on time 'nearly every month' for a year prior to the filing of the application for a certificate of eviction justifies issuance of a certificate of eviction under subsection (10). Such a chronic late payment of rent is a 'just cause' and the landlord's purpose is not 'in conflict with the provisions and purposes of this (rent control) act.' ⁴ The tenant argues that because subsection (1) justifies the issuance of a certificate only for failure 'to pay the rent to which the landlord is entitled,' it would conflict with subsection (1) to permit 'other just cause' under subsection (10) to include late payment of rent. Accepting the plaintiff's contention that the late payment of rent is not included within the language of subsection (1), a point which we need not decide, we see no conflict in including within the 'other just cause(s)' of subsection (10) chronic late payment of rent, a situation which could be substantially more adverse to the landlord's interest than nonpayment of a single rental obligation. We note that subsection (10) deals with a 'conflict' not in terms of a conflict between 'any other just cause' and the first nine subsections of § 9(a) but rather in terms of a conflict between the landlord's purpose and 'the provisions and purpose of this act.' We see no conflict here between the landlord's purpose in seeking possession of the premises (which, from all that appears, will continue to be a 'controlled rental unit') and the provisions and purposes of the Rent Control Act. ⁵

We turn then to the question whether the tenant was entitled to an adversary hearing before the board, including the right to present witnesses and cross-examine the landlord's witnesses. The tenant does not argue that the Rent Control Act explicitly provides for an adversary hearing before the board. We believe that the Legislature did not intend that there be an adversary hearing before a rent control board considering an application for a certificate of eviction under § 9. This conclusion is supported by the requirement of an adversary or 'trial-type' hearing on consideration of a petition for adjustment or rent under § 8 (see § 8(d)) and the absence of such a requirement in the very next section of the act concerning evictions.

The tenant bases his argument in support of a hearing requirement on constitutional grounds of procedural due process. He claims that he was constitutionally entitled to a hearing before the board. We note first that the tenant has not established that there was a contested question of fact as to which a hearing was needed. He has not pressed his claim that the eviction was prompted by vindictiveness of the landlord due to the tenant 'rolling the rent back' under the Rent Control Act. Moreover, the tenant agreed in the Superior Court to all the facts, including the fact of his late payment of rent 'nearly every month' for a year. However, assuming that the tenant had some possible constitutional ground for obtaining an adversary hearing, we believe that the Rent Control Act satisfies any constitutional right to an adversary hearing by providing for a hearing in the course of judicial review of the board's action. Section 10 provides that any person aggrieved by any action of a rent control board may file a complaint against the board in an appropriate district court. That court is to have exclusive jurisdiction over such proceedings and may take such action with respect to the complaint 'as is provided in the case of the superior court under the provisions of . . . (G.L. c. 231A).' In this circumstance if there is a relevant question of fact in dispute which was resolved by the board without an adversary hearing, the District Court (and the Superior Court on appeal from the District Court) should decide that question after trial unaffected by the decision of the board. ⁶ Although it is not necessary to a resolution of this case, there is the question of the right of a tenant to raise in his defence in a summary process action the absence of any circumstance described in § 9(a) which would justify the issuance of a certificate of eviction. Because the...