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SJC-12265

BEACON RESIDENTIAL MANAGEMENT, LP vs. R.P.

1

Suffolk. April 6, 2017. - September 14, 2017.

Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.2

Summary Process. Practice, Civil, Summary process, 

Intervention.

Summary Process. Complaint filed in the Boston Division of 

the Housing Court Department on July 27, 2015.

A motion to intervene was heard by Jeffrey M. Winik, J.

An application for leave to prosecute an interlocutory 

appeal was allowed in the Appeals Court by Gregory I. Massing, 

J. After review by the Appeals Court, the Supreme Judicial 

Court granted leave to obtain further appellate review.

David Emer (Alison T. Holdway also present) for the mother.

Therese Quijano for the plaintiff.

Julia Devanthéry, for Casa Myrna & another, amici curiae, 

submitted a brief.

Dorothy Bourassa & Eileen M. Fava, for Women's Bar 

Association, amicus curiae, submitted a brief.

 

1 A pseudonym.

2 Justice Hines participated in the deliberation on this 

case prior to her retirement.
2

BUDD, J. In this case we consider whether a mother3 has the 

right to intervene in an eviction action brought by a landlord 

against the mother's husband and their young children as the 

named defendants where, although she is not a named tenant on 

the lease, she has lived with her family in the apartment 

throughout the tenancy and alleges domestic violence in the 

home. We conclude that she may intervene both on her own behalf 

and on behalf of her children.

4

1. Background. This case is before us on the mother's 

appeal from the denial, by a judge of the Housing Court, of the 

her motion to intervene in a summary process action brought by 

Beacon Residential Management LP (Beacon), the agent of the 

apartment owner, Georgetowne Homes Two, L.L.C. (Georgetowne 

Homes) (collectively, landlord). We recite relevant allegations 

from the mother's motion to intervene and proposed answer, as 

supplemented by the testimony at the hearing before the motion 

judge.5

 

3 The prospective intervener.

4 We acknowledge the amicus briefs of the Women's Bar 

Association, and Casa Myrna and Jane Doe, Inc.

5 In this case the landlord premised its notice to quit on 

the ground that there was an "unauthorized individual" -- the 

mother -- living in the apartment who had been involved in a 

"disturbance" on the property. In the proposed answer appended 
3

In October, 2009, the mother, together with her husband, 

R.P., and their son, moved into a federally regulated and 

subsidized apartment in the Hyde Park section of Boston; the 

apartment was owned by Georgetowne Homes.

6 Initially both the

mother and R.P. signed the lease. Soon thereafter the landlord 

informed them that the Federal government would not subsidize 

the rent due to the mother's immigration status; thereafter, the 

couple removed the mother from the lease.

7 At that time, 

February, 2010, R.P. remained in the apartment and signed a new 

 

to the mother's motion to intervene, she claimed that she would 

raise affirmative defenses to both of the grounds listed in the 

notice to quit. Accordingly, a trial on the merits of the 

summary process action or on the merits of the defenses raised 

in the mother's proposed answer would involve the same factual 

circumstances as the question whether the mother claims an 

interest in the subject of the proceeding. In these 

circumstances, for the reasons we discuss infra, the motion to 

intervene is to be determined on the allegations in the motion, 

attached pleadings, and supporting testimony and documents. See 

American Nat'l Bank & Trust Co. v. Bailey, 750 F.2d 577, 585 

(7th Cir. 1984), cert. denied sub nom. Chicago Inv. Corp. v. 

American Nat'l Bank & Trust Co. of Chicago, 471 U.S. 1100 (1985)

(discussing analogous Federal rule).

6 The project-based housing was available through the United

States Department of Housing and Urban Development Housing 

Choice Voucher Program, pursuant to 42 U.S.C. § 1437f (2012) and 

implementing regulations. See Figgs v. Boston Hous. Auth., 469 

Mass. 354, 355 & n.2 (2014). In eligible housing, commonly 

referred to as "Section 8" housing, the Federal government, 

through the local public housing agency, "pays rental subsidies 

so eligible families can afford decent, safe and sanitary 

housing." Id. at 355 n.2, quoting 24 C.F.R. § 982.1(a)(1) 

(1999).

7 At the time, as a noncitizen, the mother needed 

documentation that she was legally in the United States.
4

lease for subsidized rent for himself and the son, and the

mother and son moved to R.P.'s parents' home. The two returned 

to the apartment in June, 2010, but neither the mother nor R.P. 

took steps to amend the lease to include the mother as a 

household member.

In June, 2012, the mother was approved as a permanent 

resident. She returned to the landlord's office with her 

immigration paperwork, including her green card, and asked the 

landlord to add her name to the lease. The landlord's policy 

was to give an "add-on" application to anyone who requested one,

and the landlord's agent testified that had the mother completed 

an add-on application, she would have been added to the lease as 

a matter of course, as long as R.P. agreed. However, although 

the mother asked to be added to the lease, she was not given an 

add-on application. The mother testified that the landlord's 

agent told her that only R.P. could add her name to the lease.

She further testified that R.P. refused to do so as a way of 

controlling her.

On May 1, 2015, the mother obtained an abuse prevention 

order pursuant to G. L. c. 209A (209A order) against R.P..

8 The

 

8 She had previously obtained an abuse prevention order 

pursuant to G. L. c. 209A (209A order) against R.P. in 2012. In 

2013, R.P. tried -- unsuccessfully -- to obtain an order against 

the mother. Although the Housing Court judge permitted the 

parties to introduce the relevant orders in evidence at the 
5

order required him to stay away from the apartment and from the

mother's workplace; it also ordered him not to contact the

mother or their two children9 and granted full custody of the 

children to the mother. The order was subsequently extended for 

a full year.

On May 26, 2015, the landlord served a notice to quit on 

R.P. and the two children. The notice stated that the mother

was an "unauthorized individual" living in the apartment, and 

that she was "involved in a disturbance on the property."10 In 

July, 2015, the landlord filed a summary process action in the 

Boston Division of the Housing Court Department based on the 

notice to quit. The mother filed a motion to intervene and a 

proposed answer,

11 arguing that the housing provisions of the 

 

intervention hearing, he did not permit them to introduce 

evidence related to the underlying facts for any of these 

actions, ruling that such evidence was "not relevant to [the] 

proceedings" on the motion to intervene.

9 The mother gave birth to a second child after the family 

moved into the apartment but before the summons and complaint 

for summary process were filed.

10 The mother claims that the disturbance was related to the 

209A order and thus was an impermissible ground for eviction 

under the Violence Against Women Act (VAWA). The factual and 

legal bases for this claim would be properly litigated in a 

trial on the merits.

11 In the Housing Court, the mother had also moved for 

permissive intervention pursuant to Mass. R. Civ. P. 24 (b), 365 

Mass. 769 (1974). Because we conclude that she is entitled to 

intervene as of right, we need not consider the judge's denial 

of permissive intervention, which is subject to considerable 
6

Violence Against Women Act, 42 U.S.C. § 14043e-11 (2012 & Supp. 

II) (VAWA), and G. L. c. 239, § 2A, prohibited the eviction 

because it was predicated on domestic violence. See 42 U.S.C. 

§ 14043e-11 (housing protections for victims of domestic 

violence).

The landlord opposed the mother's motion to intervene, and 

the judge permitted both parties to introduce documents and 

testimony in an evidentiary hearing, at which the mother and the 

landlord's leasing agent testified. The judge issued oral 

findings in which he did not credit most of the mother's 

testimony and found that she and R.P. made a joint decision not 

to add her to the lease, to enjoy the benefit of lower rent. In 

addition, he found that the landlord's failure to give the 

mother an add-on application was due to negligence and not 

related to domestic violence, so the mother had not been 

discriminated against as an applicant under VAWA. As a result, 

the judge determined that the mother did not have an interest 

that allowed her to intervene as of right, but he allowed the 

mother to amend the motion to seek intervention on behalf of her 

children. He later denied the motion as amended, stating that 

the mother could not represent the children because she had 

 

discretion. See Cruz Mgt. Co. v. Thomas, 417 Mass. 782, 785 

(1994) ("A judge has broad discretion in deciding whether to 

permit intervention").
7

acted fraudulently by living in the apartment without being 

named as a tenant on the lease. Finally, because R.P. did not 

appear, the judge entered a judgment of default.12 The mother

timely appealed to the Appeals Court the denial of her motion to 

intervene and the judgment of default. In an unpublished 

memorandum and order issued pursuant to its rule 1:28, the 

Appeals Court affirmed the denial. We allowed the mother's

application for further appellate review and vacate both the 

denial of the motion to intervene and the judgment of default.

2. Discussion. a. Legal standard. We begin with the 

language of the relevant rule governing intervention as of 

right. "Upon timely application anyone shall be permitted to 

intervene in an action . . . when the applicant claims an 

interest relating to the property or transaction which is the 

subject of the action and he is so situated that the disposition 

of the action may as a practical matter impair or impede his 

ability to protect that interest, unless the applicant's 

interest is adequately represented by existing parties"

(emphasis added). Mass. R. Civ. P. 24 (a) (2), 365 Mass. 769 

(1974). Whether the prospective intervener has met "the 

requirements for intervention is a question of law," and 

 

12 For reasons that are not apparent, the judgment of 

default was entered not only against R.P., but also against the 

children (who had been dismissed from the case) and the mother 

(who had not been permitted to intervene).
8

therefore we review the ruling de novo. See Commonwealth v. 

Fremont Inv. & Loan, 459 Mass. 209, 217 (2011). In interpreting 

this rule, we look for guidance to decisions of Federal courts 

concerning Fed. R. Civ. P. 24 (a), as the Massachusetts rule on 

intervention is nearly identical to this analogous rule. See 

Fremont Inv. & Loan, supra at 218.

Rule 24 (a) (2) "does not articulate explicit criteria for 

determining the sufficiency of the asserted interest." 

Bridgeman v. District Attorney for the Suffolk Dist., 471 Mass. 

465, 484 (2015), quoting Bolden v. O'Connor Café of Worcester, 

Inc., 50 Mass. App. Ct. 56, 62 (2000). Cf. Commonwealth v. One 

Hundred Twenty-Five Thousand One Hundred Ninety-One Dollars, 76 

Mass. App. Ct. 279, 281-282 (2010) (in civil drug forfeiture 

cases, inquiry is similar to injury prong of standing analysis). 

Thus, the type and degree of interest that suffice for 

intervention depend on "the nature of the action in which 

intervention is claimed." Care & Protection of Zelda, 26 Mass. 

App. Ct. 869, 871 (1989). In the context of this proceeding, 

the question is whether the prospective intervener claims an 

interest relating to the unit subject to eviction proceedings

notwithstanding the fact that she is not listed on the lease as

a tenant.

What a prospective intervener must show to intervene is 

central to this case. We note, first, that "Rule 24 (a) (2) 
9

requires only that the applicant claim an interest relating to 

the property in suit," even if the claim may ultimately fail on 

the merits. See American Nat'l Bank & Trust Co. v. Bailey, 750 

F.2d 577, 585 (7th Cir. 1984), cert. denied sub nom. Chicago 

Inv. Corp. v. American Nat'l Bank & Trust Co. of Chicago, 471 

U.S. 1100 (1985). Because the question of intervention is a 

threshold inquiry, see United States v. AT&T, 642 F.2d 1285, 

1291 (D.C. Cir. 1980), resolution of the merits of the 

prospective intervener's proposed pleading (an answer, in this 

case) or of the existing case would be inappropriate, so the 

motion to intervene "cannot be resolved by reference to the 

ultimate merits of the claim the intervener seeks to assert 

unless the allegations are frivolous on their face." Turn Key 

Gaming, Inc. v. Oglala Sioux Tribe, 164 F.3d 1080, 1081 (8th 

Cir. 1999), citing Oneida Indian Nation v. New York, 732 F.2d 

261, 265 (2d Cir. 1984). See Securities & Exch. Comm'n v. 

Dresser Indus., 628 F.2d 1368, 1390 (D.C. Cir.), cert. denied, 

449 U.S. 993 (1980). Instead, in these cases, "[t]he situation 

is somewhat akin to that presented on a motion for summary 

judgment or on a motion to dismiss," Stadin v. Union Elec. Co., 

309 F.2d 912, 917 (8th Cir. 1962), cert. denied, 373 U.S. 915 

(1963), and the judge should "take all well-pleaded, 

nonconclusory allegations in the motion to intervene, the 

proposed complaint or answer in intervention, and declarations 
10

supporting the motion as true absent sham, frivolity or other 

objections." Southwest Ctr. for Biological Diversity v. Berg, 

268 F.3d 810, 820 (9th Cir. 2001) ("the propriety of 

intervention must be determined before discovery"). See Reich

v. ABC/York-Estes Corp., 64 F.3d 316, 321 (7th Cir. 1995). Cf. 

Service Employees Int'l Union, Local 509 v. Department of Mental 

Health, 469 Mass. 323, 329 (2014), S.C., 476 Mass. 51 (2016),

and cases cited (on motion to dismiss for lack of standing, 

court "take[s] as true all facts alleged in the . . .

complaint"). See Iannacchino v. Ford Motor Co., 451 Mass. 623, 

636 (2008). Although a motion judge may hear arguments on the 

motion, or hold an evidentiary hearing to resolve ambiguities 

where the motion to intervene is not clearly understood, see 

Southwest Ctr. for Biological Diversity, supra, it is legally 

inappropriate at such an early stage to make findings regarding 

a prospective intervener's claimed interest, at least where, as 

here, such a determination would go to the merits of the 

proposed pleading or of the underlying case.13

 

13 Citing Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 

501, 509, 510 (1997), and Mass. R. Civ. P. 52 (a), as amended, 

423 Mass. 1402 (1996), the landlord argues that upon the review 

of a denial of a motion to intervene, the motion judge's 

findings must stand absent clear error. Indeed, this court 

stated as much as dictum in Commonwealth v. Fremont Inv. & Loan, 

459 Mass. 209, 217 (2011). However, we note that the case cited 

in Fremont to support the proposition that we allow factual 

findings to stand absent clear error relied on a case that had 
11

Thus, the prospective intervener should not be required to 

demonstrate the merits of his or her claim at an evidentiary 

hearing. Instead, the claim of intervention should be evaluated 

based on the allegations of the claim itself, and related 

documents; its merits are to be decided with all other claims. 

To hold otherwise would require a judge to rule on the merits of 

a prospective intervener's claimed interest -- including where 

that interest concerns the merits of a case that would go to a 

jury -- rather than determining only whether the prospective 

intervener has claimed an interest. See American Nat'l Bank & 

Trust Co. of Chicago, 750 F.2d at 585.

b. Application. The mother argues that both she and her 

children have an interest in the subject of the eviction 

proceedings that is not adequately represented by the existing 

parties.14 The judge ruled that the mother did not have a 

sufficient interest in the proceedings because she is neither a 

 

nothing to do with intervention or any analogous pretrial 

situation. More importantly, adopting such a rule would 

overlook the procedural context of a motion to intervene. 

Indeed, the sources cited by the landlord concern appellate 

review following a full trial on the merits, whereas a motion to 

intervene is generally filed prior to discovery.

14 As the judge noted, R.P. was no longer permitted to live 

with the family due to the abuse prevention order, so he had 

very little incentive to act in the mother's or children's 

interest. See Frostar Corp. v. Malloy, 77 Mass. App. Ct. 705, 

712 (2010), quoting United States Postal Serv. v. Brennan, 579 

F.2d 188, 191 (2d Cir. 1978) ("burden of showing that 

representation may be inadequate . . . 'should be treated as 

minimal'").
12

tenant nor an "otherwise qualified applicant" within the meaning 

of VAWA, and that, as described below, she could not represent 

the children's interest because she committed fraud. We 

disagree and conclude that she is entitled to intervene on 

behalf of herself pursuant to VAWA and on behalf of her children 

pursuant to both VAWA and G. L. c. 239, § 2A.

i. Mother's interest in the proceedings. Among other 

protections, VAWA provides that tenants and otherwise qualified 

applicants of public housing programs may not be denied or be 

evicted from housing on the basis that the tenant or applicant 

is a victim of domestic violence. See 42 U.S.C. § 14043e11(b)(1). The mother asserts that she is an otherwise qualified 

applicant because she sought to be added to the lease and was a 

victim of domestic abuse by R.P.. The motion judge concluded, 

however, that the mother was not "otherwise qualified" under 

VAWA, finding that she committed fraud by living in the 

apartment without being added to the lease to avoid an increase 

in rent. This was error.

As discussed above, because the issue to be determined in 

deciding a motion to intervene is simply whether the prospective

intervener has alleged plausible facts that claim an interest,

not whether she would ultimately prevail in the underlying 

action, we take the mother's allegations in her motion, 

testimony, and supporting documents as true, and draw reasonable 
13

inferences in her favor. In other words, we consider only 

whether the mother has claimed an interest here as an otherwise

qualified applicant. As the landlord's contrary allegations --

that she was an unauthorized occupant and committed fraud -- go 

to the merits of the eviction case, they should not have been 

considered at the motion to intervene hearing.

VAWA does not expressly define what it means to be 

otherwise qualified, including whether this definition refers 

only to factors such as income and family size. However, this 

motion arose in a preliminary stage of the case. Because the

mother claims that she tried to apply and that R.P. was abusive 

and prevented her from being added to the lease as a way of 

controlling her, she has alleged sufficient facts to permit an 

inference that she was an otherwise qualified applicant, and is 

entitled to intervene in the eviction proceeding. American 

Nat'l Bank & Trust Co. of Chicago, 750 F.2d at 585 (opposing 

party's defenses to intervener's counterclaim did not defeat 

motion to intervene). Any further determination of the 

credibility of her factual allegations as to whether she is 

otherwise qualified would be properly adjudicated at a later 

stage. Id.
14

ii. Children's interest in the proceedings.

15 The mother 

also seeks to intervene in the eviction action on behalf of her 

children. We note that as to any interest claimed by the 

children, it is appropriate for the mother to intervene, as she 

is the parent with sole custody and they are minors.16 We 

conclude that the mother has sufficiently alleged that the 

 

15 The unqualified judgment of default against R.P. means 

that if the lower court decision stands, the children will be 

forced to move. Normally, where minor children are living in an 

apartment with one parent, the question whether they have an 

interest sufficient to intervene is irrelevant because the 

parent is presumably an adequate representative of their 

interests. Here, however, R.P. was barred from contact with the 

children as a result of the 209A order, and he failed to appear 

in court. That does not automatically mean that the children 

have no recourse to prevent eviction. Cf. Arsenault v. Chicopee 

Hous. Auth., 15 Mass. App. Ct. 939, 941 (1983) (where custodial 

parent abandoned child and apartment, child who was lawful 

occupant could assert right to grievance procedures before 

eviction, even if success on merits was not guaranteed).

16 As the 209A order against R.P. awarded sole custody of 

the children to the mother, it is appropriate for her to be the 

one to intervene on their behalf. Cf. Mass. R. Civ. P. 17 (b), 

as appearing in 454 Mass. 1402, 1402-1403 (2009); Arsenault, 15 

Mass. App. Ct. at 939-940 (natural father brought action on 

child's behalf as next friend). In this case we find that any 

potential deficiencies in the mother's claims asserted in 

support of her motion to intervene as a party in her own right

do not prevent her from meeting her threshold burden to 

intervene in her representative capacity on behalf of the two 

children. Moreover, as discussed supra, these are issues that 

should be properly resolved on the merits in the summary process 

proceeding itself.
15

children have interests entitling them to intervene, pursuant to 

both Federal and State law.17

VAWA provides that tenants may not be denied occupancy 

rights "solely on the basis of criminal activity directly 

relating to domestic violence . . . that is engaged in by a 

member of the household of the tenant or any guest . . . if the 

tenant or an affiliated individual of the tenant is the victim 

or threatened victim of such domestic violence." 42 U.S.C. 

§ 14043e-11(b)(3)(A). Here, the landlord seeks to evict the

family, including the children, alleging that the parents 

committed fraud.18 The children qualify as tenants for purposes 

 

17 Because the mother has alleged that the lease violations 

claimed by the landlord were the result of domestic abuse by 

R.P., she has also alleged sufficient facts for the children to 

have an interest under other provisions of VAWA, including 42 

U.S.C. § 14043e-11(b)(2) (2012 & Supp. II), which provides:

"An incident of actual or threatened domestic violence 

. . . shall not be construed as --

"(A) a serious or repeated violation of a lease for 

housing assisted under a covered housing program by the 

victim or threatened victim of such incident; or

"(B) good cause for terminating the assistance, 

tenancy, or occupancy rights to housing assisted under a 

covered housing program of the victim or threatened victim 

of such incident."

18 Fraud may fall under the category of "criminal activity" 

for purposes of VAWA. See United States Department of Housing & 

Urban Development, The HUD Handbook 4350.3: Occupancy 

Requirements of Subsidized Multifamily Housing Programs, at 8-26 
16

of VAWA because they are lawful occupants and members of the 

"assisted family," see 81 Fed. Reg. 80,724, 80,730 (Nov. 16, 

2016), and their mother is an "affiliated individual" of them. 

See 42 U.S.C. § 14043e-11(a)(1)(A) (including "parent" and 

"child" in definition of "affiliated individual"). Here, 

accepting as true the mother's claim that she was prevented from 

adding her name to the lease as a part of R.P.'s abuse, it 

follows that we also accept as true the proposition that the 

criminal activity, i.e., fraud, alleged by the landlord was a 

result of domestic violence. As a result, the landlord's 

attempt to evict the children violates 42 U.S.C. § 14043e11(b)(3)(A). Therefore, under VAWA, the children are tenants 

with an interest in the unit and the right to defend against 

wrongful eviction; thus, they have an interest sufficient to 

intervene in the action.

The children also have a viable defense to eviction based 

on Massachusetts law. Under G. L. c. 239, § 2A, there is a

rebuttable presumption that an eviction action commenced within 

six months of a household member seeking a 209A protective order 

is retaliatory. Here, the 209A order was entered on May 1, 

2015, and the notice to quit was dated May 26, 2015. Thus,

there are sufficient facts to permit a presumption of 

 

to 8-27 (Nov. 2013) (concerning Section 8 housing, "Fraud can be 

handled as a civil and/or criminal violation").
17

retaliation. Accordingly, the mother may intervene on behalf of 

the children on this basis as well.

3. Conclusion. It perhaps goes without saying that 

success on a motion to intervene in an action does not guarantee 

success on the merits of that action. In this case, it means 

simply that the mother is permitted to assert affirmative 

defenses to the eviction action on behalf of herself and her 

children. Because we conclude that the motion judge prematurely 

reached the merits of the case, we vacate the judgment of 

default, reverse the denial of the motion to intervene, and 

remand for further proceedings consistent with this opinion.

So ordered.