[Link to
GCH-0016](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0016LOPS.doc)

[Link to
GCH-0017](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0017LOPS.doc)

[Link to
GCH-0018](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0018LOPS.doc)

[Link to
GCH-0019](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0019LOPS.doc)

[Link to
GCH-0020](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0020LOPS.doc)

[Link to
GCH-0021](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0021LOPS.doc)

[Link to
GCH-0022](http://www.hud.gov/offices/adm/hudclips/lops/GCH-0022LOPS.doc)

Legal Opinion: GCH-0015

Index: 2.245

Subject: PH Due Process Determination: Massachusetts

December 3, 1991

Honorable William F. Weld

Governor of Massachusetts

Boston, MA. 02133

Dear Governor Weld:

I am happy to advise you of a new public housing \"due

process determination\" for the State of Massachusetts.

Under Federal law, if the Secretary of the Department of

Housing and Urban Development (HUD) determines that law of the

jurisdiction requires a pre-eviction court hearing with the

basic \"elements of due process\" (42 U.S.C. 1437d (k), as amended

in 1990), a public housing agency (PHA) is not required to

provide an administrative grievance hearing before evicting a

public housing tenant for:

1\. Any criminal activity that threatens the health,

safety, or right to peaceful enjoyment of the premises

of other tenants or employees of the PHA; or

2\. Any drug-related criminal activity on or near such

premises.

In accordance with the law, HUD has recently issued a

regulation which revises HUD\'s definition of due process

elements at 24 CFR 966.53(c) (56 Federal Register 51560,

October 11, 1991).

Pursuant to the revised regulation, HUD has determined that

the State law governing an action for eviction in the

Massachusetts Housing, District and Superior Courts under

Chapter 239 of the Massachusetts General Laws requires that the

tenant have the opportunity for a pre-eviction hearing in court

containing the elements of due process as defined in 24 CFR

966.53(c) of the HUD regulations. The basis of this

determination is explained in the legal analysis enclosed with

this letter.

In accordance with HUD\'s determination, a PHA operating

public housing in the State of Massachusetts may exclude from

its administrative grievance procedure any grievance concerning

an eviction or termination of tenancy which involves any

criminal activity that threatens the health, safety, or right to

peaceful enjoyment of the premises of other tenants or employees

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of the PHA, or any drug-related criminal activity on or near

such premises.

When a PHA evicts a tenant pursuant to an action for

eviction in the Massachusetts Housing, District and Superior

Courts under Chapter 239 of the Massachusetts General Laws for

the reasons set forth above, the PHA is not required to afford

the tenant the opportunity for an administrative hearing on the

eviction under 24 CFR Part 966, and may evict a public housing

tenant pursuant to a decision in such judicial action.

Very sincerely yours,

Jack Kemp

Enclosure

DUE PROCESS DETERMINATION

for the

STATE OF MASSACHUSETTS

TABLE OF CONTENTS

I. Jurisdiction.

II\. Elements of Due Process.

III\. Overview of Massachusetts Eviction Procedures.

IV\. Analysis of Massachusetts Eviction Procedures for

Each of the Regulatory Due Process Elements.

V. Conclusion.

ANALYSIS

I. Jurisdiction: Massachusetts.

II\. Elements of Due Process

Section 6(k) of the United States Housing Act of l937

(42 U.S.C. 1437d (k), as amended by section 503(a) of the National

Affordable Housing Act of 1990, Pub. L. 101-625, approved

November 28, 1990), provides that:

For any grievance concerning an eviction or termination of

tenancy that involves any criminal activity that threatens

the health, safety, or right to peaceful enjoyment of the

premises of other tenants or employees of the public housing

agency PHA or any drug-related criminal activity on or

near such premises, the agency may . . . exclude from its

grievance procedure any such grievance, in any jurisdiction

which requires that prior to eviction, a tenant be given a

hearing in court which the Secretary determines provides the

basic elements of due process . . . .

The statutory phrase, \"elements of due process,\" is defined

by HUD at 24 CFR § 966.53(c) as:

. . . an eviction action or a termination of tenancy in a

State or local court in which the following procedural

safeguards are required:

\(l\) Adequate notice to the tenant of the grounds for

terminating the tenancy and for eviction;

\(2\) Right of the tenant to be represented by counsel;

\(3\) Opportunity for the tenant to refute the evidence

presented by the PHA including the right to confront

and cross-examine witnesses and to present any

affirmative legal or equitable defense which the tenant

may have; and

\(4\) A decision on the merits.

HUD\'s determination that a State\'s eviction procedures

satisfy this regulatory definition is called a \"due process

determination.\"

The present due process determination is based upon HUD\'s

analysis of the laws of the State of Massachusetts to determine

if due process procedures under those laws require a hearing

which comports with all of the regulatory \"elements of due

process\" as defined in 966.53(c).

HUD finds that the requirements of Massachusetts law

governing an action for eviction in the Housing, District, and

Superior Courts under Chapter 239 of the Massachusetts General

Laws include all of the elements of basic due process, as defined

in 24 CFR 966.53(c). This conclusion is based upon

requirements contained in the Massachusetts General Laws, case

law and court rules.

Furthermore, HUD\'s analysis and conclusion accords with the

view of the Federal District Court in Skinner v. Boston Housing

Authority that \"the minimal standards of due process found in

24 C.F.R. 966.53(c) are certainly present in Massachusetts,

facts which can be readily confirmed by reference to the General

Laws of Massachusetts and the rules of civil procedure applicable

in its several courts.\" See, 690 F. Supp. 109, 113-114, n.7

(D. Mass. 1988). See also, Spence v. Gormley, 387 Mass. 258,

439 N.E.2d 741, 751 (1982), and Kargman v. Dustin, 5 Mass.App.

101, 359 N.E.2d 971, 974 (1977).

III\. Overview of Massachusetts Eviction Procedures

A person entitled to possession of real property may bring a

summary proceeding pursuant to Chapter 239 of the Massachusetts

Code to recover possession of the property. Mass. Gen. Laws

c\. 239, 1; cf. also, c. 184, 18. All Massachusetts Trial

Court departments (Housing, District, and Superior Courts) have

jurisdiction to hear summary process actions under Chapter 239

for possession of housing. Mass. Gen. Laws c. 185C, 1, 3;

c\. 211B, 1; c. 212, 4; c. 218, 19; c. 239, 2; Uniform

Summary Process Rules (U.S.P.R.) Rule 1.

The Massachusetts Code provides that a summary process

action in any of these courts must be commenced and administered

in accordance with rules promulgated with approval of the Supreme

Judicial Court. Mass. Gen. Laws c. 185C, 19. Such rules are

contained in the U.S.P.R. and the Massachusetts Rules of Civil

Procedure (Mass.R.Civ.P.), The rules in the Mass.R.Civ.P. apply

2

unless they are inconsistent with the U.S.P.R., with applicable

statutory law or the court\'s jurisdiction. U.S.P.R. Rule 1. The

U.S.P.R. provides for some variation in the applicable rules

depending on which Trial Court Department is used to prosecute

the eviction action.

Massachusetts law requires a public housing authority (PHA)

to grant the tenant an administrative hearing for termination of

tenancy, except in the case of nonpayment of rent. Mass. Gen.

Laws, c. 121B, 32. However, on the request of the PHA, the

PHA\'s hearing panel may waive the State law grievance requirement

for certain types of serious crimes. This HUD due process

determination is not limited to evictions for which the hearing

panel waives the State grievance requirement, but is also not

intended to preempt a State law requirement for a grievance

hearing.

IV\. Analysis of Massachusetts Eviction Procedures for Each of

the Regulatory Due Process Elements

A. Adequate notice to the tenant of the grounds for

terminating the tenancy and for eviction

(24 CFR 966.53(c)(l))

A summary process action is commenced by filing a summons

and complaint. U.S.P.R. Rule 2; Mass. Gen. Laws c. 185C, 19.

The summons and complaint must state the reason for eviction:

in concise, untechnical form and with sufficient

particularity and completeness to enable a defendant to

understand the reasons for the requested eviction and

the facts underlying those reasons.

U.S.P.R. Rule 2(d). See also Mass.R.Civ.P. Rule 8(a).

The summons and complaint must also specify the date of the

hearing (see Commentary to U.S.P.R. Rule 2), and must be properly

served on the defendant. U.S.P.R. Rule 2(b) and Mass.R.Civ.P.

Rule 4(d).

The Massachusetts law and court rules require adequate

notice to the tenant of the grounds for termination of tenancy

and eviction.

B. Right to be represented by counsel

(24 CFR 966.53(c)(2))

The right of a litigant to be represented by counsel is

implied by various provisions of the court rules concerning the

role of counsel. The Mass.R.Civ.P. regulate appearances by an

attorney on behalf of a party. Rule 11; see also, references to

a party\'s attorney in Rules 6 and 7(c) of the U.S.P.R.

3

C. Opportunity for the tenant to refute the evidence

presented by the PHA, including the right to confront

and cross-examine witnesses (24 CFR 966.53(c)(3))

The Mass.R.Civ.P. provides that the testimony of witnesses

must be taken orally in open court (unless otherwise provided by

the Mass.R.Civ.P.). Mass.R.Civ.P. 43(a). Furthermore, all

evidence must be admitted \"which is admissible.\"

Mass.R.Civ.P. 43(a).

The Mass.R.Civ.P. also provides the tenant-defendant the

right to impeach or contradict the plaintiff\'s case through

cross-examination. Mass.R.Civ.P. 43(b). A witness may be cross-

examined \"subject only to the trial judge\'s sound discretion.\"

Rule 43(b), cf. Rule 43(g). A party may interrogate hostile or

adverse party witnesses by leading questions and may contradict

or impeach testimony of an adverse party witness. Rule 43(b).

The tenant may present evidence to refute the PHA\'s case.

For this purpose the defendant may arrange issuance of subpoenas

for production of witnesses or documentary evidence.

Mass.R.Civ.P. 45.

At a trial or hearing, a pretrial deposition may only be

used against a party who had the opportunity to be present at the

taking of the deposition. Mass.R.Civ.P. 32(a). At the taking of

a deposition, the witness may be cross-examined in the same

manner as permitted at trial. Mass.R.Civ.P. 30(c). A deposition

may only be used at trial in specific and restrictive

circumstances stated in the rules. Mass.R.Civ.P. 32(a).

Provisions which allow the use of a deposition at trial under

\"exceptional circumstances\" note the \"importance of presenting

the testimony of witnesses orally in open court.\" Mass.R.Civ.P.

32(a)(3).

The Massachusetts rules of civil procedure give a defendant-

tenant a full opportunity to defend against and refute the PHA\'s

evidence, including the right to confront and cross-examine

witnesses.

D. Opportunity to present any affirmative legal or

equitable defense which the tenant may have

(24 CFR 966.53(c)(3))

A defendant in a summary process action is entitled to

answer the complaint. U.S.P.R. Rule 3. The answer may deny any

statement which is in dispute and may state \"any affirmative

defense\", without limitation. U.S.P.R. Rules 3 and 5;

Mass.R.Civ.P. Rules 8(b) and (c), 13(a).

The answer may deny any statement which is in dispute, may

state \"any affirmative defense\" without limitation, in accordance

4

with Mass. Gen. Laws ch. 239, 8A. U.S.P.R. Rules 3 and 5;

Mass.R.Civ.P. Rules 8(b) and (c), 13(a). In the landlord\'s

action to recover possession of the unit, a tenant is entitled to

raise any defense based upon the landlord\'s breach of warranty,

the rental agreement, or any law. Mass. Gen. Laws, ch. 239,

8A.

The Massachusetts Trial Courts have common law, statutory

and equity jurisdiction over possessory actions. These Courts

can consider any affirmative legal or equitable defense and grant

any appropriate relief. Mass. Gen. Laws, c. 185C, 3. U.S.P.R.

Rule 5 also grants power to issue equitable relief. The U.S.P.R.

Commentary observes that \"all courts have the authority to issue

injunctive relief in appropriate cases.\" U.S.R.P. Rule 9,

Commentary.

E. A decision on the merits (24 CFR 966.53(c)(4))

Under U.S.P.R. Rule 10, judgment is entered on the court\'s

decision after hearing or trial. The structure of the trial and

hearing requirements under the U.S.P.R and Mass.R.Civ.P. imply

that the court decision is to be based on the evidence presented

in the summary proceeding bearing on the legal and factual issues

framed by the complaint and answer. See Mass.R.Civ.P. Rule

52(a), Rules 54-62.

The form of \"Findings of Fact and Order for Judgment\" used

by judges in the Boston Housing Court, for example, provides for

the specification of the facts found by the court after trial,

\"from the evidence\" (emphasis supplied), and for grant of a

judgment on the basis of the court findings. (Boston Housing

Court, Summary Process Action Forms, Form 3, Massachusetts Rules

of Court (1991), p. 326).

V. Nuisance Eviction Statute

Under Chapter 139, 19 of the Massachusetts laws, an owner

may elect to \"annul and make void\" the lease of a tenant who uses

the leased property for certain types of illegal activity,

including \"the illegal keeping, sale or manufacture of controlled

substances.\" On voiding of the lease, the right of possession

reverts and vests in the owner, who may:

. . . without process of law, make immediate

entry upon the premises, or may avail himself

of the remedy provided in chapter two hundred

and thirty nine the summary process

statute .

A landlord\'s use of the self-help repossession option

provided by Chapter 139 would not provide a tenant with the

opportunity for a pre-eviction due process hearing in court.

5

Consequently, a PHA landlord may not use this option to evict a

public housing tenant without first providing the tenant with the

opportunity for a hearing under the PHA grievance procedure.

The other avenue for an eviction under Chapter 139 is a

summary process action under Chapter 239. For such an action,

State law requires a hearing that meets the elements of due

process in 966.53(c) (for the reasons discussed above, in the

general analysis of a summary process action). A PHA may

therefore exclude from its grievance process an eviction based on

an annulment or voiding of the lease pursuant to Chapter 139 if

it uses the summary process procedures of Chapter 239.

V. Conclusion.

Massachusetts law governing Chapter 29 summary eviction

proceeding in Housing, District and Superior Courts

(Massachusetts Trial Courts) requires that the tenant have the

opportunity for a pre-eviction hearing in court which provides

the basic elements of due process as defined in 24 CFR

966.53(c) of the HUD regulations.

By virtue of HUD\'s due process determination under section

6(k) of the U.S. Housing Act of l937, a PHA in Massachusetts may

evict a public housing tenant pursuant to a Trial Court decision

in an eviction proceeding for any criminal activity that

threatens the health, safety, or right to peaceful enjoyment of

the premises of other tenants or employees of the PHA or any drug

related criminal activity on or near the premises, and is not

required to first afford the tenant the opportunity for an

administrative hearing on the eviction.

6