Scott Realty Group Trust v. Charland

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18-P-1478 Appeals Court

SCOTT REALTY GROUP TRUST1 vs. DEBORAH R. CHARLAND.

No. 18-P-1478.

Plymouth. March 16, 2020. - October 28, 2020.

Present: Wolohojian, Massing, & Wendlandt, JJ.

Summary Process, Notice to quit. Landlord and Tenant,
Termination of tenancy, Rent. Consumer Protection Act,
Landlord and tenant.

Summary Process. Complaint filed in the Falmouth Division
of the District Court Department on September 18, 2017.

After transfer to the Southeast Division of the Housing
Court Department, the case was heard by Anne Kenney Chaplin, J.,
and a motion to alter or amend judgment, or for a new trial,
also was heard by her.

Deborah R. Charland, pro se.
Robert L. Cooperstein for the plaintiff.

WOLOHOJIAN, J. This appeal from a summary process eviction

action presents several novel questions concerning the

termination of a Section 8 tenancy. Specifically, we must

1 Scott Bousquet, trustee.
2

decide whether the terms of the housing assistance payments

contract (HAP contract) between the landlord, plaintiff Scott

Realty Group Trust, and the Framingham Housing Authority

(authority), the entity making housing assistance payments for

the benefit of the tenant, restricted the landlord's ability to

terminate the at-will tenancy without cause. We must also

decide whether the provisions of the HAP contract and 42 U.S.C.

§ 1437f(d)(1)(B)(iv) (2012) required that the landlord's notice

to quit specify the ground for terminating the tenancy. We

conclude that the HAP contract did not restrict the landlord's

right to terminate the at-will tenancy without cause, but that

the tenant did not receive the notice to which she was due. We

also conclude that the language of the notice to quit did not

violate G. L. c. 93A, and that the judge did not err in awarding

the landlord unpaid rent. For these reasons, we vacate in part

and affirm in part.

Background.2 Deborah R. Charland (whom we sometimes refer

to as the tenant) has lived at 83 Cranberry Highway, Bourne,

since approximately November 2008 under a Section 8 tenant-based

assistance housing choice voucher program administered by the

authority. Her tenancy began with a written lease from November

2 The essential facts are undisputed, and no challenge is
made to the trial judge's findings.
3

1, 2008, through October 31, 2009.3 Thereafter, she was a tenant

at will.4

Charland was served with a thirty-day notice to quit on

April 24, 2017, and she was served with a summary process

summons and complaint on June 8, 2017. Because the landlord did

not comply with the requirement that a copy of the eviction

notice be simultaneously supplied to the authority, the landlord

withdrew the summary process action.

Charland was then served with a second thirty-day notice to

quit on July 21, 2017, informing her that she needed to leave

the premises by September 1, 2017. Although it appears that the

landlord wished to occupy the premises himself, the notice to

quit did not state this. The notice gave no reason for the

landlord's decision to terminate Charland's at-will tenancy.

When Charland failed to vacate the premises, the landlord

filed the underlying summary process complaint. The complaint

alleged that the landlord sought to evict Charland because she

occupied the premises unlawfully "against the right of [the

3 Charland has not included a copy of the lease (which was
an exhibit at trial) in the record appendix. However, she
raises no issue concerning the terms of the lease, therefore its
absence from the record is of no concern.

4 Charland agrees that she has been a tenant at will since
November 1, 2009. Moreover, she raises no issue concerning any
terms of the lease that may or would have carried over to her
tenancy at will. See Boudreau v. Johnson, 241 Mass. 12, 16
(1922).
4

landlord] because [of her] failure to vacate the premises . . .

after a termination of [her] tenancy." But the complaint did

not did state why Charland's tenancy had been terminated.

After a trial, a judge of the Housing Court granted

possession to the landlord and awarded $241 in rent that

Charland had not paid as of the date of trial. The judge also

ordered judgment in favor of the landlord on Charland's

counterclaim under G. L. c. 93A. This appeal followed.5

Discussion. We begin our discussion with a brief overview

of the HAP contract between the landlord and the authority, and

then turn to the particular provisions at issue in this case.

In order to receive Section 8 rent assistance payments for

Charland's tenancy, the landlord was required to enter into an

annual HAP contract with the authority, a public housing agency

(PHA).6 The HAP contract is a form document published by the

United States Department of Housing and Urban Development (HUD)

5 Charland also appeals from the order denying her posttrial
motion to alter and/or amend judgment and/or for a new trial,
and purports to appeal from the order denying her motion for
summary judgment. While the latter order is not reviewable on
appeal, both motions raised the same issues that we address in
this appeal. See Lavoie v. A Justice of the Dist. Court Dep't,
484 Mass. 1055, 1055 (2020) (order denying summary judgment
motion not reviewable on appeal from judgment on merits, but
underlying legal issues forming basis of motion may be
reviewed).

6 "If the PHA approves a family's unit and tenancy, the PHA
contracts with the owner to make rent subsidy payments on behalf
of the family." 24 C.F.R. § 982.1(a)(2) (2017).
5

and is used to provide Section 8 tenant-based assistance under

HUD's Housing Choice Voucher Program.7,8 "The HAP contract must

be in the form required by HUD." 24 C.F.R. § 982.451(a)(1)

(2017).9 See 24 C.F.R. § 982.162 ("The PHA must use program

contracts and other forms required by HUD headquarters,

including . . . [t]he HAP contract between the PHA and the

owner; and . . . [t]he tenancy addendum. . . . Required program

contracts and other forms must be word-for-word in the form

required by HUD").

Each HAP contract has three parts: part A, which consists

of tenant-, lease-, and unit-specific details; part B, which is

the body of the contract; and part C, which is the so-called

7 "In the HUD Housing Choice Voucher (HCV) program, HUD pays
rental subsidies so eligible families can afford decent, safe,
and sanitary housing. The HCV program is generally administered
by State or local governmental entities called public housing
agencies (PHAs). HUD provides housing assistance funds to the
PHA." 24 C.F.R. § 982.1(a)(1) (2017).

8 "Section 8 assistance may be 'tenant-based' or 'project-
based'. In project-based programs, rental assistance is paid
for families who live in specific housing developments or units.
With tenant-based assistance, the assisted unit is selected by
the family. The family may rent a unit anywhere in the United
States in the jurisdiction of a PHA that runs a voucher
program." 24 C.F.R. § 982.1(b)(1) (2017). See 24 C.F.R.
§ 982.353 (2017). Charland's subsidy was tenant-based and,
thus, although it was administered through the authority, she
could use it outside of Framingham.

9 We refer to the 2017 version of the Code of Federal
Regulations throughout this opinion.
6

"tenancy addendum."10 A person or family receiving Section 8

housing assistance "is not a party to or third party beneficiary

of the HAP contract." 24 C.F.R. § 982.456(b)(1). As a result,

"the [tenant or] family may not exercise any right or remedy

against the owner under the HAP contract," other than "the

owner's obligations under the tenancy addendum" and any lease

between the landlord and the tenant. 24 C.F.R. § 982.456(b).

See 24 C.F.R. § 982.308(f)(2) ("The tenant shall have the right

to enforce the tenancy addendum against the owner, and the terms

of the tenancy addendum shall prevail over any other provisions

of the lease").

Charland relies on two provisions of the tenancy addendum

to argue that the landlord did not properly terminate her

tenancy in 2017 and was not, therefore, entitled to possession.11

10"The HAP contract form required by HUD shall include an
addendum (the 'tenancy addendum')." 24 C.F.R. § 982.308(f)(1).
"All provisions in the HUD-required tenancy addendum must be
added word-for-word to the owner's standard form lease that is
used by the owner for unassisted tenants." 24 C.F.R.
§ 982.308(f)(2).

11Although two HAP contracts were admitted as exhibits at
trial, the record appendix contains only the one running from
December 1, 2011, to November 30, 2012. In other words, the
document in the record was not in effect at the time Charland's
tenancy was terminated. Nonetheless, because the parties do not
dispute that the authority continued to pay the Section 8
subsidy amount to the landlord, it is reasonable to infer that a
HAP contract remained in place for the duration of Charland's
tenancy. The parties have given us no reason to think that the
terms of the HAP contract between the landlord and the authority
were different at the time the landlord sought to terminate her
7

First, she points to subparagraph 8(d)(3) to argue that her at-

will tenancy could not be terminated without good cause.

Second, she points to paragraph 8(g) to argue that the notice to

quit needed to specify the reason for which her tenancy was

being terminated.12 The pertinent parts of the tenancy addendum

are reproduced in the margin.13

tenancy in 2017 than they had been from 2011 to 2012, the period
covered by the HAP contract in the record. In this regard, we
note that the current version of the form HAP contract published
by HUD is available on the Internet, and the tenancy addendum
provisions upon which Charland relies appear substantially the
same in the current version as they do in the one from eight
years earlier that is in the record. See United States
Department of Housing and Urban Development, Form HUD-52641
(July 2019),
https://www.hud.gov/sites/dfiles/OCHCO/documents/52641.pdf
[https://perma.cc/2S4T-BCX4].

12The termination provisions of the HAP contract can be
found in 24 C.F.R. § 982.310.

13 "8. Termination of Tenancy by Owner

". . .

"b[.] Grounds. During the term of the lease (the initial
term of the lease or any extension term), the owner may
only terminate the tenancy because of: . . . [three
reasons that are not at issue here]; or

"(4) Other good cause (as provided in paragraph
d). . . .

"d[.] Other good cause for termination of tenancy

"(1) During the initial lease term, other good cause
for termination of tenancy must be something the
family did or failed to do.
8

1. Was cause required under subparagraph 8(d)(3) to

terminate Charland's at-will tenancy? Under common law, a

landlord can terminate an at-will tenancy at any time for any or

no reason. See Bank of N.Y. Mellon v. King, 485 Mass. 37, 49

"(2) During the initial lease term or during any
extension term, other good cause may include:

"(a) Disturbance of neighbors,
"(b) Destruction of property, or
"(c) Living or housekeeping habits that cause
damage to the unit or premises.

"(3) After the initial lease term, such good cause
may include:

"(a) The tenant's failure to accept the owner's
offer of a new lease or revision;
"(b) The owner's desire to use the unit for
personal or family use or for a purpose other
than use as a residential rental unit; or
"(c) A business or economic reason for
termination of the tenancy (such as sale of the
property, renovation of the unit, the owner's
desire to rent the unit for a higher rent). . . .

"g. Owner notice of grounds

"(1) At or before the beginning of a court action to
evict the tenant, the owner must give the tenant a
notice that specifies the grounds for termination of
tenancy. The notice may be included in or combined
with any owner eviction notice.

"(2) The owner must give the PHA a copy of any owner
eviction notice at the same time the owner notifies
the tenant.

"(3) Eviction notice means a notice to vacate, or a
complaint or other initial pleading used to begin an
eviction action under State or local law."
9

n.11 (2020), citing Davis v. Comerford, 483 Mass. 164, 166 n.4

(2019). Charland, however, argues that her at-will tenancy

could not be terminated except for the reasons specified in

subparagraph 8(d)(3) of the tenancy addendum, in essence

superseding the provisions of common law.

Paragraph 8(b) of the tenancy addendum provides that

"[d]uring the term of the lease (the initial term of the lease

or any extension term), the owner may only terminate the tenancy

because of . . . [o]ther good cause (as provided in paragraph

d)." Paragraph (d) in turn identifies different types of

"[o]ther good cause" depending on whether the termination occurs

(1) "[d]uring the initial lease term," (2) "[d]uring the initial

lease term or during any extension term," or (3) "[a]fter the

initial lease term."14 Because it is clear that Charland's

tenancy was not terminated during the initial lease term, or any

extension term of the initial lease, the only question is

whether her tenancy was terminated "[a]fter the initial lease

term" as that phrase is used in subparagraph 8(d)(3). Charland

asks that we read this phrase to extend indefinitely so that it

applies even when there is neither a lease nor an extension of

one, and the tenancy has become at will.

Essentially, the further into the tenancy, the more
14

latitude the landlord has as grounds to terminate. See note 13,
supra.
10

Read in isolation, without reference to any of the

surrounding language, Charland's reading would have force

because there is no temporal endpoint identified in the language

of subparagraph 8(d)(3) itself. But contract language must be

read in context, see Starr v. Fordham, 420 Mass. 178, 190 & n.11

(1995), and for this reason Charland's argument fails. In

interpreting a contract, "[t]he objective is to construe the

contract as a whole, in a reasonable and practical way,

consistent with its language, background, and purpose."

Sullivan v. Southland Life Ins. Co., 67 Mass. App. Ct. 439, 442

(2006), quoting Massachusetts Prop. Ins. Underwriting Ass'n v.

Wynn, 60 Mass. App. Ct. 824, 827 (2004). Although it is true

that subparagraph 8(d)(3) contains no limiting language, the

introductory provision of paragraph 8(b) does. Specifically,

paragraph 8(b) provides that a tenancy may be terminated for

other good cause as provided in paragraph 8(d) when the

termination occurs during "the term of the lease," which is

defined as "the initial term of the lease or any extension

term." Thus, reading subparagraph 8(d)(3) together with the

provisions of paragraph 8(b) upon which it is dependent, it is

clear that the phrase "[a]fter the initial lease term" means

during any extension term of the lease. Subparagraph 8(d)(3)

does not create what has been called an "endless lease,"

extending the good cause requirement indefinitely into the
11

future even after a tenant has become at will. Rosario v.

Diagonal Realty, LLC, 803 N.Y.S.2d 343, 348 (N.Y. Sup. Ct.

2005). Our conclusion is consistent with the few cases from

other jurisdictions to have considered the issue. See In re

Burch, 401 B.R. 153, 158 (Bankr. E.D. Pa. 2008); Rosina v.

Parra, 853 N.Y.S.2d 458, 459 (N.Y. App. Div. 2007); Deutsche

Bank Nat'l Trust Co. v. Tulloch, 900 N.Y.S.2d 837, 838 (N.Y.

Dist. Ct. 2010).

Accordingly, once Charland became a tenant at will, the

provisions of paragraphs 8(b) and 8(d) did not apply.

2. Did paragraph 8(g) require that Charland receive notice

of the ground for terminating her tenancy? Under Massachusetts

law, because Charland was a tenant at will whose tenancy was not

being terminated for failure to pay rent, the notice to quit

needed only to comply with G. L. c. 186, § 12. See Adjartey v.

Central Div. of the Hous. Court Dep't, 481 Mass. 830, 851

(2019); Spence v. O'Brien, 15 Mass. App. Ct. 489, 490 n.3, 495-

496 (1983). Under that statute, no explanation for the

landlord's decision need be included in the notice to quit

unless the termination is based on nonpayment of rent. Charland

argues, however, that the provisions of the HAP contract and 42

U.S.C. § 1437f(d)(1)(B)(iv) (2012) require otherwise.

Charland is correct that, under subparagraph 8(g)(1) of the

tenancy addendum, she was entitled to "notice that specifies the
12

grounds for termination of [the] tenancy." As set forth in

subparagraph 8(g)(3), that notice could be contained either in

"a notice to vacate, or a complaint or other initial pleading

used to begin an eviction action under State or local law."

Thus, to prevail, Charland needed to show that neither the

notice to quit nor the summary process complaint gave a reason

for the termination of her tenancy. As to the first, it is

undisputed that neither of the two notices to quit gave any

reason for terminating Charland's tenancy. As to the second,

although the summary process complaint alleged that Charland

occupied the premises unlawfully "against the right of [the

landlord] because [of her] failure to vacate the premises . . .

after a termination of [her] tenancy," this language did not

notify Charland of the reason her tenancy was terminated.

Rather, it notified her only of the reason for the eviction:

that she had failed to vacate the premises after the tenancy had

been terminated. Thus, Charland did not receive the notice she

was due either in the notice to quit or in the summary process

complaint.

In a case such as this one, where an at-will tenancy is

being terminated for no cause on the part of the tenant, one

might question the purpose behind a requirement that the tenant

receive notice that her tenancy is being terminated for no

reason. Charland argues that, in such cases, the provision
13

provides a valuable benefit to Section 8 tenants as they seek

their next housing. In her view, landlords are generally

reluctant to rent to Section 8 tenants, so it helps to be able

to show that the previous tenancy ended through no fault of the

tenant. We need not decide whether Charland is correct in this

view. Even if the purpose of the notice requirement is not

readily evident in the case of terminations without cause,15

where Congress has not carved no-cause terminations out of the

required contract language, Charland is entitled to its benefit.

As provided in 42 U.S.C. § 1437f(d)(1)(B)(iv) (2012), "any

termination of tenancy shall be preceded by the owner's

provision of written notice to the tenant specifying the grounds

for such action" (emphasis added).16

This case demonstrates that landlords of Section 8 tenants

must be careful to comply with the notice provisions contained

in paragraph 8(g) of the HAP contract tenancy addendum even

15It is important to remember that the notice provisions of
paragraph 8(g) are not limited to no-cause terminations.
Instead, the notice requirements are general, i.e., they apply
whether the tenancy is terminated for cause or not. It makes
perfect sense that a tenant who is being terminated for cause be
informed of the reason, especially given the provisions of the
tenancy addendum restricting the reasons for which a tenancy may
be terminated during the term of the lease.

16 In light of our conclusion that the requirements of
paragraph 8(g) were not satisfied, we need not decide whether,
as Charland contends, 42 U.S.C. § 1437f(d)(1)(B)(iv) (2012)
provides an independent right to notice that is enforceable by a
tenant.
14

where the tenancy is at will. Those notice provisions do not

displace the landlord's ability to terminate an at-will Section

8 tenancy, but they do require that the tenant receive notice of

the reason for the termination. That reason must be contained

either in the notice to quit or the summary process complaint.

Where there is cause for the termination, either the notice to

quit or the summary process complaint must so state; and the

same is true where there is no cause for the termination.

3. Did the notice to quit violate c. 93A? Charland

contends that the following language in the notice to quit

violated G. L. c. 93A because it was designed to, and did, cause

her fear and emotional distress as a person of limited means and

with disabilities:

"HEREOF FAIL NOT, vacate the premises aforesaid on or
before September 1, 2017, or we shall take due course of
law to evict you from the same, including the attachment,
seizure and levy of your personal property in order to
satisfy any judgment for monies due including, but not
necessarily limited to, interest, costs and reasonable
attorney fees."

The judge, relying on G. L. c. 239, § 8A, concluded as a matter

of law that Charland was not entitled to raise c. 93A as a

defense or counterclaim to the landlord's claim of possession.

With good reason, the landlord does not press this view on

appeal. See Rental Prop. Mgt. Servs. v. Hatcher, 479 Mass. 542,

552 (2018).
15

To establish a claim under G. L. c. 93A, § 9, a tenant must

establish that the landlord committed an "unfair or deceptive

act[] or practice[] in the conduct of . . . trade or commerce."

G. L. c. 93A, § 2 (a). In certain circumstances, the contents

of a notice to quit may violate the Attorney General's

regulations interpreting G. L. c. 93A pertaining to the

landlord-tenant relationship. See 940 Code Mass. Regs.

§ 3.17(2) (1993).17 See also Homesavers Council of Greenfield

Gardens, Inc. v. Sanchez, 70 Mass. App. Ct. 453, 458-459 (2007).

Charland does not argue, let alone show, that the language in

the notice to quit runs afoul of those regulations. Nor does

Charland contend, or show, that the language incorrectly stated

the remedies the landlord could pursue if forced to evict her.

In these circumstances, Charland has failed to show that the

notice was unfair or deceptive.

17 "It shall be an unfair or deceptive practice for an owner
to:

"(a) Send to a tenant any notice or paper which appears or
purports to be an official or judicial document but which
he knows is not;
"(b) Fail or refuse to accept any notice sent to any
address to which rent is customarily sent, or given to any
person who customarily accepts on behalf of the owner, or
sent to the person designated in the rental agreement in
accordance with [940 Code Mass. Regs. § 3.17(3)(b)(2)].
"(c) Demand payment for increased real estate taxes during
the term of the tenancy unless, prior to the inception of
the tenancy, a valid agreement is made pursuant to which
the tenant is obligated to pay such increase."
16

4. Unpaid rent. Finally, Charland argues that the judge

erred in awarding the landlord damages in the amount of

Charland's portion ($241) of the March 2018 rent. On the

evidence presented, the judge could find that Charland had not

yet paid her portion of the rent by the date of trial (March 5,

2018). Charland does not dispute that her rent was due on the

first of the month; nor does she dispute that the March 2018

rent had not been paid by March 1. Although the judge credited

Charland's testimony that she usually paid her rent during the

first or second week of the month,18 that history of late payment

(even if understandable) did not alter the fact that her rent

was due on the first of the month and that it had not yet been

paid.

Conclusion. Because Charland did not receive notice of the

ground for the termination of her tenancy as required by

paragraph 8(g) of the tenancy addendum to the HAP contract, so

much of the judgment as awards possession to the landlord is

vacated. In all other respects, the judgment is affirmed.

So ordered.

18Charland receives her Social Security disability benefits
check at her post office box on the third day of each month, but
is not always able to get to it immediately. As a result,
during her tenancy, Charland has paid her rent during the first
or second week of the month, rather than on the first day.