The Supreme Judicial Court’s Decision in Beacon Residential v. R.P. Gives Survivors of Domestic Violence Their Day in Housing Court

devanthery

by Julia Devanthéry

Case Focus

The link between domestic abuse and housing instability is undeniable; survivors often face housing loss as a direct result of abuse or find themselves homeless after fleeing violence. In an all-too-common scenario, a survivor lives with her abuser, but is not on the lease because the abuser intentionally withholds housing stability as a method of abuse. In those cases, survivors may have to choose between their safety and their housing if they decide to separate from their abusers. Now, however, under the Supreme Judicial Court’s (“SJC”) recent decision in Beacon Residential v. R.P., survivors of domestic violence—including those who aren’t on the lease and are alleged to be “unauthorized occupants” by the landlord—are allowed to intervene as of right in summary process cases under Mass. R. Civ. P. 24 (a)(2) if they claim an interest relating to the apartment subject to the eviction proceedings. Beacon Residential Management, LP v. R.P., SJC-12265, slip op. (Sept. 14, 2017). As a result, thousands of survivors across the Commonwealth, formerly excluded from summary process cases, will have a right to their day in Housing Court.

In Beacon, the proposed intervener testified that she was a survivor of domestic violence who lived with her abuser, who was her husband, and their children in a federally subsidized apartment that was leased in the husband’s name. Although she lived at the apartment, she testified that her abusive partner prevented her from being added formally to the lease. The landlord’s witness testified that the landlord’s policy was to give an “add-on” application to all who inquired and that if the survivor in this case applied, she would have been added so long as she qualified and the husband approved.  However, the survivor was not given an application when she asked for one; rather, she was told only her husband could add her to the lease.  He, she testified, refused to do so as a means of controlling her. When the mother obtained a G.L c. 209A restraining order against her husband (which required him to leave the shared home and awarded custody of the two children to her), the landlord immediately initiated eviction proceedings against the family based on the mother’s “unauthorized” status at the unit.

The abuser failed to attend the summary process trial and was defaulted.  The mother attended the hearing and filed a motion under Mass. R. Civ. P. 24 to intervene both as of right and permissively along with a proposed answer and jury claim. She argued that she had a defense to the eviction under the Violence Against Women Act (“VAWA”), which prohibits evictions of qualified applicants for public housing based on the applicant being a victim of domestic violence,  and G.L. c. 239, §2A, which prohibits retaliation against survivors who obtain restraining orders. The landlord opposed her intervention.  The Housing Court judge denied her motion to intervene based on a finding that she would not be able to prevail on her defenses at trial. The mother then filed a new motion to intervene on behalf of her children, which was also denied.

The SJC’s decision in favor of the mother makes clear that at the intervention stage, a trial court’s inquiry should be limited to whether the proposed intervener has stated a plausible claim to the property, and that the judge should not reach the merits of the underlying claim until the trial. Beacon, slip op. at 7-11. In this case, the Court held that the proposed intervener stated a plausible claim to the apartment under VAWA and G.L. c. 239, §2A, and therefore she should have been allowed to intervene on behalf of herself and the children. Id. at 11-17. While the Court stressed that intervention does not guarantee success on the merits, it unambiguously held that the standard should be broadly applied to allow intervention when a litigant claims an interest in the property at issue in the eviction case. Id. at 17. In the wake of this groundbreaking decision, a greater number of survivors will now have access to justice in the Housing Court, and an opportunity to fight to save their homes.

 

Julia Devanthéry is a Lecturer on Law at the WilmerHale Legal Services Center of Harvard Law School.     This article is an update of her recent article, Early Lease Termination Under G.L. c. 186, § 24: An Essential Escape Route for Tenants Who Are Facing Domestic Violence, Sexual Assault, or Stalking,  61 Boston Bar Journal (Summer 2017).  In the case discussed here, Ms. Devanthéry filed an amicus brief with the Supreme Judicial Court in support of the survivor.


Expanding Lawyer for Day at Housing Court: One Piece of Homelessness Puzzle

By James D. Smeallie

President’s Page

In March of this year, the Boston Bar Foundation (BBF) released a groundbreaking study assessing the practical impact of legal representation in eviction cases. The data indicated that without representation by counsel, many vulnerable tenants forfeit important rights, often lose possession of homes they could have retained, and sometimes forego substantial financial benefits. Conducted under the auspices of a Boston Bar Association (BBA) Task Force on Expanding Civil Right to Counsel, the study involved two different pilot projects, one in the Quincy District Court, and one in the Northeast Housing Court.

Meanwhile, a study conducted by the Task Force to Expand Access to Civil Legal Services in New York found that “the unmet need for civil legal assistance in New York State is profoundly impacting vulnerable New Yorkers and costing taxpayers millions of dollars by increasing homelessness, failing to prevent domestic violence, and increasing poverty.”

This is not a new problem. In 1999, the BBA’s Real Estate Section partnered with the Volunteer Lawyers Project of the Boston Bar Association (VLP), Greater Boston Legal Services (GBLS), the WilmerHale Legal Services Center, and the Boston Housing Court (BHC) to establish a Lawyer for the Day program. The goal was to prevent evictions resulting in homelessness. At the request of the BHC, the program has two different legal information tables, one for unrepresented tenants, and another for unrepresented landlords. The Herbert W. Vaughan Fund of the BBF helps support the operations of this program.

During the 13 year history of the Lawyer for the Day program at the BHC, 1,200 volunteers have donated their time to assist more than 14,732 individuals. In just the past year alone, 443 volunteers helped 991 tenants and 181 landlords.

About 95 per cent of tenants at the BHC are unrepresented. According to Chris Saccardi, a solo practitioner from Somerville and a frequent volunteer, tenants, the bulk of whom are low-income and frequently minorities, are usually opposed by a landlord represented by counsel. The issue before the court is typically whether the tenant can stay in his or her home. Were it not for the Lawyer for the Day program, the imbalance in power would be profound.

Chris reports that it is not uncommon to see families with young children, families with elderly parents sharing their home, as well as elderly people living alone — all of whom are facing eviction. But he also sees tenants who have slipped below middle class status because of job loss or illness.

For tenants living in subsidized housing or Boston Housing Authority developments, the stakes can be especially high. Take for example a grandmother raising grandchildren. Should one of those kids get in trouble, the entire family can face eviction. Should they be evicted “for cause,” the impact can be devastating — with the family being required to split up, move in with relatives, or live on the street. Collateral consequences may follow.

GBLS is well-known for having housing attorneys second to none. Yet the demand for their services by poor people overwhelms the supply.

The BHC, which hears anywhere between 200 and 225 evictions weekly, considers the Lawyer for the Day program a godsend. Thanks to Lawyer for the Day volunteers, some 80 per cent of the cases can be resolved successfully through mediation provided by BHC staff — without a judge having to get involved.

“The program has been successful beyond our wildest dreams,” says Robert Lewis, Chief Clerk Magistrate of the BMC.

A word about unrepresented landlords. . . they are frequently immigrants with limited English proficiency who depend on the rent to pay mortgages on owner occupied two or three family homes. Missed rental payments can put them at risk of foreclosure. Indeed, there are situations where landlord owners of small multi-family homes can be in a tighter financial situation than their tenants.

Often times this population of landlords need to be advised about what steps they must take to bring their property to the minimum state sanitary code, and assisted in determining the difference between a tenant complaint and what the law requires them to do.

This month, the Lawyer for the Day program will expand its services to low income landlords, starting with one Monday a month dedicated specifically to those cases. As Joanna Allison of the VLP points out, the mistakes that unrepresented landlords make on a procedural basis make it impossible for them to prevail in their cases — resulting in wasted filing fees for people who can least afford them and inefficiency for a busy court.

The Lawyer for the Day program is a model for legal services organizations to leverage the contributions of committed volunteers to preserve housing for a very vulnerable population and to conserve precious judicial resources. If we consider the fact that the cost of placing a family in a shelter is on average three times higher than the average government subsidy for families in Massachusetts, the program is also saving taxpayers money.

The program also illustrates the concept that lawyers can do well by doing good. Mary K.Y. Lee, a lawyer whose paid work involves both immigration and landlord/tenant matters, is another dedicated volunteer. She says that were it not for her volunteering for Lawyer for the Day at the BHA, she might not have gotten litigation experience so early in her career, and credits the program with helping her become “a better person and a better lawyer.”

We should all applaud all those involved for making the Lawyer for the Day program a continued success. That being said, we still confront the painful reality of overburdened courts and underrepresented litigants.

As the Task Force to Expand Access to Civil Legal Services in New York concluded, “private lawyers cannot fill the gap in services as the sheer numbers of needy and unrepresented litigants overwhelm the capacity of volunteer lawyers.” In response to that Task Force’s recommendations, the New York Legislature dramatically increased legal aid funding to provide for counsel in eviction and other cases involving basic human needs.

So while I say “keep up the good work” to all our volunteers, I look forward to the BBA expanding beyond its civil right to counsel study and pursuing new paths to assuring counsel to all those involved in cases involving basic human needs such as housing. Stay tuned.