This is an appeal from a decree of the Housing Court of the City of Boston reversing the action of the Boston Rent Control Administrator granting the appellant (landlord) certificates of eviction against twenty-one tenants of twenty apartments in Long Wharf in the city of Boston (tenants). The landlord's applications for the certificates of eviction assigned as the basis therefor St. 1970, c. 842, § 9 (a) (10) (act). Each of the tenants filed an opposing statement. A hearing was held before a representative
The administrator, in granting the applications, found "that the landlord proved an intention to renovate the units and that the nature of the work required the units to be vacated, and that such renovation was not in conflict with the provisions and purposes of the statute." On a petition for review filed by the tenants pursuant to St. 1970, c. 842, § 10, the judge of the Housing Court reversed the administrator's decision. In substance he ruled that the landlord's intentions are in conflict with the purposes of the statute. We affirm.
We examine first the nature of the review in the Housing Court. Although St. 1970, c. 842, § 10, is entitled "Judicial Review" it clearly provides in eviction matters for a de novo court proceeding specifically comparable to a declaratory relief proceeding under G.L.c. 231A. In this proceeding an aggrieved person may challenge the action of a rent control board or administrator. "[E]xclusive original jurisdiction over such proceedings" was lodged in any District Court having territorial jurisdiction over the locus of the controlled rental unit. By G.L.c. 185A, inserted by St. 1971, c. 843, § 1, however, the Legislature amended the exclusiveness of this grant of jurisdiction, creating the Housing Court of the City of Boston, and endowing it with jurisdiction "concurrent with the district courts and the superior court" under "so much of any ... general or special law ... as is concerned with the health, safety or welfare of any occupant of any place used, or intended for use, as a place of human habitation." (§ 3.)
We are thus reviewing the decision of the Housing Court judge on the evidence presented before him.
Nor was there error in the judge's ruling, in reversing the administrator's decision, that the evictions here were "in conflict with the provisions and purposes of ... [the] act." St. 1970, c. 842, § 9 (a) (10).
Most of the facts are undisputed. They are as follows. The twenty units are located in the Custom House Block, which is comprised of a total of fifty-one housing units. The building is located within an area generally controlled by the Boston Redevelopment Authority. Extensive renovation has been accomplished as to the interior and exterior of the building. The thirty-one units with which we are not directly concerned are not subject to rent control. These have been either newly built or substantially renovated under the landlord's plans to rehabilitate the entire building. Substantial work which affects the entire building has already been done, including a new roof, new elevators, a new water main service, new boilers, and a new electrical system. The evidence warrants a conclusion that the extensive renovations planned for the twenty rent-controlled
There are certain disputed assertions of facts. The landlord contends that the Boston Redevelopment Authority threatened to take the building by eminent domain unless the renovations were accomplished. The landlord appears to urge also, although it is not entirely clear, that the proposed renovations have been shown to be necessary for continued occupancy of the twenty units. As shown later in this opinion, we believe that neither of these contentions is supported by the evidence.
Under § 9 (a) the act sets out nine specific grounds, as shown in the margin,
We need not consider to what extent, if any, the judge may exercise discretion as to what constitutes "just cause" under this section. We hold that, as a matter of law, the purpose of the eviction here is not consistent with the provisions and purposes of the act. We reach this conclusion on evidence in the record, summarized above, which is undisputed and may fairly be said to be binding on the landlord.
The declaration of emergency in § 1 of the act is an appropriate place for us to look for legislative purpose (see Marshal House, Inc. v. Rent Control Bd. of Brookline, 358 Mass. 686 ), and we find that section is informative in this instance. It declares, as shown in full in the margin,
From the plain language of § 1 it is clear that one of the principal purposes of the act is to preserve and expand the supply of housing for families of low and moderate income. The record establishes that the twenty units presently carry rents from $145 to $315 a month. If the proposed renovation takes place, rents on the units will increase by at least $120 to $125 a month. Both parties have clearly assumed in their briefs and arguments that this will remove the apartments from the low and moderate rental market. Presumably, this change will be permanent. This result would be in conflict with what is clearly a central purpose of the act. Nor would the proposed rehabilitation meet the spirit and intent of the act in any way calculated to mitigate the loss to the market of twenty low and moderate rental units. The total number of available units, at any and all rental levels, would not be increased by the rehabilitation; the net effect would be to convert twenty low and moderate rental units into twenty high-rent units. Clearly the administrator could not validly permit evictions in these circumstances, as the trial judge ruled.
We cannot accept the landlord's argument that the rehabilitation is required by reason of the units' deterioration. The landlord emphasizes evidence which he presented before the administrator and which was incorporated in the Housing Court record showing that the apartments, which were constructed in the 1940's, have plumbing which needs modern replacements and have unsafe firewalls. However, there is no evidence whatsoever that public authorities have directed that any changes must be made
It does not follow, as the landlord argues, that it is left with the option of either demolishing the units or allowing them to deteriorate for lack of repair. For all that appears, necessary repairs may be done without evictions. Also, § 7 (a) of the act guarantees a "fair net operating income" to the landlord, and this must necessarily provide for essential repairs.
Other arguments of the landlord are not convincing. He contends that in some manner the rehabilitation of the twenty units was ordered by the Boston Redevelopment Authority under threat of a land taking. This is not shown in the record; correspondence from the Authority to the landlord at best extended praise for the rehabilitation. The landlord also argues that the units not subject to rent control have already been renovated at great cost, and that it would be incongruous to deny similar treatment to the remaining twenty units. The short answer to this is that the work on the other units was commenced without prior guaranties as to rent control by any public official and that the functions of the administrator and the court cannot thus be foreclosed in advance.
We recognize that the act probably has the effect in this instance, and others, of preventing the earning by the landlord of the maximum profit which these twenty units might yield in an uncontrolled market. It is not for this court to consider any argument addressed to the desirability of the statute. The parties are of course entitled to
TAURO, C.J. (dissenting).
I am cognizant of the skill and scholarship apparent in the majority opinion, but I must respectfully dissent. Only recently we reaffirmed the fundamental canon of statutory construction that "[w]e must construe ... [a] statute, `if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score.'" Commonwealth v. Lamb, ante, 265, 269 (1974). The majority have adopted the Housing Court's interpretation of the "just cause" provision of the act (St. 1970, c. 842, § 9 [a] ). In my opinion, that interpretation, as applied to the facts in this case, raises a serious question whether constitutional prohibitions against the taking of private property without compensation have been violated. I would follow the administrator's interpretation, for it avoids constitutional doubts. Yet it is reasonable and consistent with the provisions and purposes of the act.
I am aware of the consistency with which State rent control statutes have been upheld as proper exercises of police power in times of public emergencies. Block v. Hirsh, 256 U.S. 135 (1921). Marcus Brown Holding Co. Inc. v. Feldman, 256 U.S. 170 (1921). Edgar A. Levy Leasing Co. Inc. v. Siegel, 258 U.S. 242 (1922). Eisen v. Eastman, 421 F.2d 560 (2d Cir.1969). Israel v. City Rent & Rehabilitation Admn. of the City of New York, 285 F.Supp. 908 (S.D.N.Y. 1968). Indeed, we have upheld against constitutional assaults the 1953 rent control statute (St. 1953, c. 434) and the 1970 rent control statute applicable to this case. Russell v. Treasurer & Recr. Gen. 331 Mass. 501, 507 (1954). Marshal House, Inc. v. Rent Control Bd. of Brookline,
The only justification for governmental interference with the private relationship between landlord and tenant through control of rents and evictions is that a public emergency exists. In view of the legislative declaration of such emergency, I do not question its existence. St. 1970, c. 842, § 1. But even in so grave an emergency as the extensive housing shortage caused during World War II by the reduction of residential construction and the massive demobilization of veterans, individual constitutional rights were recognized to exist. Bowles v. Willingham, 321 U.S. 503, 519, 521 (1944). Woods v. Cloyd W. Miller Co. 333 U.S. 138.
It is imperative that so basic a constitutional right as the right of an individual to use and enjoy his own property
The implicit warning in the Block case, that State police power must be exercised cautiously, was brought home emphatically in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922). There the court declared unconstitutional a Pennsylvania statute forbidding the mining of anthracite coal in such a way as to cause subsidence of a dwelling. Again writing for the court, Mr. Justice Holmes declared that the Block, Marcus Brown Holding Co. and Levy Leasing Co. cases, upholding the validity of local rent control acts, had gone "to the verge of the law." Id. at 416. In forceful language, he pointed out the danger of private property rights being consumed by the police power: "[T]he Fifth Amendment presupposes that ... [private property] is wanted for public use, but provides that it shall not be taken for such use without compensation.... When this seemingly absolute protection is found to be qualified by the police power, the natural tendency of human nature is to extend the qualification more and more until at last private property disappears. But that cannot be accomplished in this way under the Constitution of the United States. The general rule at least is,... if regulation goes too
Examination of the facts and circumstances of the instant case establishes that the denial of certificates of eviction so severely restricts the landlord's use and enjoyment of his property as to constitute a pro tanto taking for which he is entitled to be compensated. Under the act the landlord can use his property only in the following ways: he can devote it to "use and occupancy of himself" or his family (§ 9 [a] ), use it for some nonhousing purpose (§ 9 [a] ), demolish it (§ 9 [a] ), or continue to rent the twenty units. While these options may realistically exist in other instances, they are illusory here. Obviously, the landlord or his family could not occupy all twenty rental units. It is unrealistic to assume that the twenty units could be converted to a nonhousing use. Aside from the enormous expense involved in such an undertaking, the probable adverse effect such a radical alteration would have on the residential environment would probably reduce the rental value of the other thirty-one units in the building. The option to demolish the property is no option at all. The practical effect of denying the certificates of eviction in this case is to compel the landlord to dedicate his property indefinitely
I do not, of course, question the need for rental accommodations for persons of low or moderate income. But I fear that important constitutionally protected individual rights are being sacrificed here to meet a public need. Such a sacrifice on the part of an individual is too great to demand no matter how urgent the public need. When private property rights are so stringently restricted, as here, the Constitution of the United States and our Constitution require that the government must pay for the use of the property. Pennsylvania Coal Co. v. Mahon, supra, at 416. Campbell v. Boston, 290 Mass. 427, 431 (1935). Aronson v. Sharon, 346 Mass. 598, 604 (1964).
The grave constitutional question raised by the majority's construction of the "just cause" provision can be avoided by a construction which supports the administrator's decision. He concluded from the evidence presented to him that "the landlord proved an intention to renovate the units and that the nature of the work required the units to be vacated, and that such renovation was not in conflict with the provisions and purposes of the statute and ... [that] the eviction ... [was not] retaliatory." By granting the certificates of eviction, the administrator determined that there was "just cause" for the landlord to recover possession and that his purpose did not conflict with "the provisions and purposes of ... [the] act." St. 1970, c. 842, § 9 (a) (10). This determination is fully supported by evidence that the twenty units are in an ancient, historic and unique building in which substantial funds ($1,500,000) already have been invested to renovate
As I have said, I do not question the necessity that housing be made available to persons of low and moderate income. But tenants who inhabit rent controlled units do not, by virtue of the provisions in the rent control act, acquire vested rights in such units. See Nayor v. Rent Bd. of Brookline, 334 Mass. 132, 135 (1956). Yet the majority opinion here, in effect, allows the tenants to take from the landlord a substantial property interest, namely, the right to make substantial alterations on his property and to obtain correspondingly higher rents. In the face of a public
Because of the narrow construction of the "just cause" provision adopted by the Housing Court judge and followed by the majority, the landlord is being required to dedicate substantial property interests to a public use without compensation. Since the broader interpretation of the provision adopted by the administrator is available and would avoid the serious constitutional question raised, I would reverse the decision of the Housing Court and reinstate the decision of the administrator.
It is not clear from the briefs of the parties whether they considered the proceeding in the Housing Court as subject to G.L.c. 30A, or as comparable to a G.L.c. 231A proceeding. For all that appears, only the evidence produced before the administrator was presented before the judge. In any event, it makes little difference, since we have been able to establish the facts, and the conclusion which the judge reached is required as a matter of law from those facts.
(1) the tenant has failed to pay the rent to which the landlord is entitled;
(2) the tenant has violated an obligation or covenant of his tenancy other than the obligation to surrender possession upon proper notice and has failed to cure such violation after having received written notice thereof from the landlord;
(3) the tenant is committing or permitting to exist a nuisance in, or is causing substantial damage to, the controlled rental unit, or is creating a substantial interference with the comfort, safety, or enjoyment of the landlord or other occupants of the same or any adjacent accommodation;
(4) the tenant is convicted of using or permitting a controlled rental unit to be used for any illegal purpose;
(5) the tenant, who had a written lease or rental agreement which terminated on or after this act has taken effect in a city or town, has refused, after written request or demand by the landlord, to execute a written extension or renewal thereof for a further term of like duration and in such terms that are not inconsistent with or violative of any provisions of this act;
(6) the tenant has refused the landlord reasonable access to the unit for the purpose of making necessary repairs or improvements required by the laws of the United States, the commonwealth, or any political subdivision thereof, or for the purpose of inspection as permitted or required by the lease or by law, or for the purpose of showing the rental unit to any prospective purchaser or mortgagee;
(7) the person holding at the end of a lease term is a subtenant not approved by the landlord;
(8) the landlord seeks to recover possession in good faith for use and occupancy of himself, or his children, parents, brother, sister, father-in-law, mother-in-law, son-in-law, or daughter-in-law;
(9) the landlord seeks to recover possession to demolish or otherwise remove the unit from housing use...."
Having in mind this appropriately broad construction of the "just cause" provision, I find unacceptable the narrow interpretation of that clause adopted by the majority in the present case. The majority reject the landlord's argument that rehabilitation is required because of the units' deterioration, noting the absence of any evidence of an order from a public authority "that any changes must be made in the interests of health or safety." Ante, at 580-581. Yet the majority acknowledge that evidence was presented to the administrator and the judge of the Housing Court that plumbing needed to be replaced and that the apartments had unsafe firewalls. Ante, at 580. The evidence was in the form of testimony from an architect summarized in the record as follows:
"He stated his opinion to be that the renovation was necessary. The original work in the apartments, which was done in the forties, is far below modern standards. The partitions and walls are unsafe in case of fire (one hour rather than two hour enclosures.)" Apparently, the majority require an order from some public authority requiring renovation because of a violation of law before allowing a certificate of eviction to issue for renovation purposes. It is clear that the judge of the Housing Court would impose such a requirement, for he concluded that "[t]he situation might be otherwise if renovation and rehabilitation were required and evictions practically necessary to cure housing, building or other code violations." However, there is no such requirement in the act. True, there is a provision allowing eviction of a tenant who refuses to let his landlord make necessary repairs or improvements required by law. St. 1970, c. 842, § 9 (a) (6). But, as we decided in the Gentile case, the "just cause" provision is not restricted or limited by the other nine subsections of § 9 (a). Therefore, the landlord did not have to show any order of a public authority that required renovation in the interest of health or safety in order to justify issuance of certificates of eviction for "just cause."
By following the broad construction of the "just cause" provision adopted by the court in the Gentile case, the majority could have upheld the administrator's decision to issue the certificates and would have avoided what, in my opinion, is an unconstitutional application of the act.