Section Review

Court reluctant to find irrebuttable presumption lurking in lease or regulations

Neil Madden represented Arthur Bruno in the appeal of Boston Housing Authority v. Bruno, 58 Mass. App. Ct. 486 (2003). His law practice, Madden Law Office, in South Boston focuses on criminal defense and civil litigation.
On Feb. 9, 2000, Arthur Bruno's son, Adam, was arrested within the grounds of the Old Colony housing project and subsequently pleaded guilty to possession of heroin and possession of a dangerous weapon; mace pepper spray. The Boston Housing Authority brought a summary process action for possession against Arthur Bruno. As grounds therefore, the BHA argued that Adam was a member of Bruno's household at the time he engaged in this criminal activity and, thus, Bruno violated a provision of his lease that forbids any household member from engaging in violent or drug-related criminal activity on or near BHA property.

The lease elsewhere provided that engagement in criminal activity by the cited class of persons, including, but not limited to household members, shall be grounds for eviction of a tenant. At the trial of the eviction case, Bruno testified that although Adam was listed as a tenant he, in fact, had left the household to live with his mother in Abington. To corroborate Bruno's testimony, evidence of Adam's W-2 forms listing his mother's address as his residence was introduced. The judge found Bruno to be a credible witness and accepted his testimony as true. In addition, the judge pointed to the W-2 forms and the BHA's lack of any eyewitness testimony contradicting Bruno's testimony to support his judgment denying the BHA possession. The BHA subsequently appealed the lower court decision.

On appeal, the BHA challenged the judge's finding as clearly erroneous. However, beyond this clear error challenge, the thrust of the BHA's appeal was predicated on the theory that because Bruno listed Adam as a household member on lease documents during the period of Adam's criminal activity, the lease documents should establish an irrebuttable presumption that Adam was a household member as a matter of social policy. The BHA further argued that if the lower court's decision was upheld the decision would place an affirmative duty on the BHA to present evidence that corroborates the lease documents on which the tenants are named. The BHA argued that such an affirmative duty would place an undue burden upon the BHA to establish tenancy in all future evictions.

The court rejected this argument, noting it was the defendant, Bruno, who produced the credible evidence to support his theory that Adam was not a tenant in his household. The court was reluctant to find an irrebuttable presumption lurking within the lease or the applicable statutory or regulatory provisions. The laws say no such thing and to allow a lease document to establish such a presumption is to travel outside the four corners of the document. The principal purpose for BHA inquiries regarding household status was to determine rent value, to ensure that apartment size was appropriate for the number of household members listed and to prevent overcrowding by unlisted individuals. The creation of an irrebuttable presumption that an individual is, in fact, a household member is not one of the purposes for which the lease documents were intended. Thus, the court was unwilling to shut the door to tenants who are ready and willing to come forth with evidence to rebut their status as household members.

In its second attempt to overturn the trial court's ruling, the BHA relied upon Oakland Housing Authority v. Pearlie Rucker, 122 S.Ct. 1230 (2002) under which a tenant may be evicted where he or she has knowledge that a household member, guest or any person under that tenant's control is engaged in unlawful activity on or near the premises. The court reached the decision in Rucker based upon the application of the federal statute calling for the eviction of a tenant where the tenant has knowledge of a guest's illegal activities. The BHA argued that, even if the court found Adam was not a household member that he was a guest and thus grounds for Bruno's eviction still existed. The court was not persuaded by this argument, noting that a party may not pursue one theory at the trial level and proceed under another at the appellate level. Accordingly, the court affirmed the Housing Court's judgment.

The court's refusal to find merit in Boston Housing Authority's arguments demonstrates that the principles of justice and fairness were adhered to in this case. The court looked past the technicalities and the sweeping manner in which the laws are sometimes applied and saw the reality of the case: an innocent tenant threatened with eviction based on the particularities of the BHA lease document. The court would not be dissuaded from acting in the interests of justice in this case as it upheld the trial court's judgment in favor of Bruno.

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