NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision andare superseded by the advance sheets and bound volumes of the Official Reports. Thispreliminary material will be removed from the Web site once the advance sheets of the OfficialReports are published. If you find a typographical error or other formal error, please notify theReporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square,Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.usFEDERAL NATIONAL MORTGAGE ASSOCIATION
vs.
Jose NUNEZ. [FN1]SJC-10881.May 2, 2011. - September 6, 2011.
Summary Process. Statute,
Retroactive application, Retrospective statute, Construction.
Words,
"Action," "Eviction."SUMMARY PROCESS. Complaint filed in the Western Division of the Housing CourtDepartment on May 10, 2010.A motion to dismiss was heard by
Dina E. Fein,
J.An application for leave to prosecute an interlocutory appeal was allowed by
Scott L. Kafker,
J.,in the Appeals Court. The Supreme Judicial Court on its own initiative transferred the case fromthe Appeals Court.
Thomas I. Elkind
(
Michael Thompson
with him) for the plaintiff.
Suzanne Garrow
(
Thomas P. Zito
with her) for the defendant.
David Grossman, Charlotte Alvarez, Elizabeth Benton, Ayalon Eliach, Caitlin Kekacs, Samuel Levine, Marielle Macher, Adrianna Rodriguez, Samuel Simon, & David Williams,
for CityLife/Vida Urbana, amicus curiae, submitted a brief.
Judith Liben,
for Massachusetts Law Reform Institute, amicus curiae, submitted a brief.Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, & Duffly, JJ.GANTS, J.On August 7, 2010, the Legislature enacted and made immediately effective St.2010, c. 258(act),which prohibits institutional lenders and certain financial institutions who own foreclosedproperties from evicting residential tenants without just cause. The issue raised in this case iswhether the act requires dismissal of a no-cause summary process case that was already pendingwhen the act went into effect, or whether the application of the act to such a case isimpermissibly retroactive. We conclude that the provision of the act that prevents evictionwithout just cause is properly applied to protect all residential tenants on foreclosed propertieswho, on or after August 7, 2010, had yet to vacate or be removed from the premises by an
eviction, even where the owner purchased the property before the act's effective date, andinitiated a summary process action before that date. Because the tenant, Jose Nunez, was stillresiding on the property on August 7, 2010, and the owner, the Federal National MortgageAssociation (Fannie Mae), was seeking to evict him without just cause, we conclude that theHousing Court judge properly applied the act to dismiss Fannie Mae's pending claim forpossession. [FN2]
Factual background.
Fannie Mae became the owner of the property located at 16- 18 HampdenStreet, unit 18, in the Indian Orchard section of Springfield at a foreclosure sale on November30, 2009. On January 11, 2010, Fannie Mae served the tenants in the property with a ninety-daynotice to quit, as required by the Federal Protecting Tenants at Foreclosure Act, Pub.L. 111-22,§§ 701-704, 123 Stat. 1660 (2009). The notice did not state any cause for termination of thetenancy, and Fannie Mae has conceded that it did not have just cause for the eviction. WhenNunez did not leave after the ninety-day period, Fannie Mae served and filed a summary processcomplaint on May 10, 2010, seeking to obtain possession of the premises. Nunez timely filed ananswer asserting various defenses and counterclaims, none of which is relevant to the issueraised on appeal.On September 22, 2010, Nunez filed a motion to dismiss Fannie Mae's claim for possession onthe grounds that, under the newly-enacted St.2010, c. 258, Fannie Mae could no longer evictNunez without just cause. A judge in the Housing Court agreed and dismissed Fannie Mae'sclaim for possession, while transferring other claims and counterclaims to the civil docket.Fannie Mae petitioned for an interlocutory appeal to a single justice of the Appeals Court, whoreferred the case to a full panel of that court. We transferred the case to this court on our ownmotion.
Statutory background.
Section 6 of the act added a new chapter to the General Laws, G.L. c.186A, entitled, "Tenant Protections in Foreclosed Properties." General Laws c. 186A, § 2,provides: "Notwithstanding any general or special law to the contrary, a foreclosing owner shallnot evict a tenant except for just cause or unless a binding purchase and sale agreement has beenexecuted for a bona fide third party to purchase the housing accommodation from a foreclosingowner." The statute defines an "[e]viction" as "an action, without limitation, by a foreclosingowner of a housing accommodation which is intended to actually or constructively evict a tenantor otherwise compel a tenant to vacate such housing accommodation." G.L. c. 186A, § 1.A "[f]oreclosing owner" covered by the act is an entity that held the mortgage prior toforeclosure, or a financial institution that acquired the property after a foreclosure. G.L. c. 186A,§ 1. [FN3] A "[t]enant" is "a person or group of persons who at the time of foreclosure is entitledto occupy a housing accommodation pursuant to a bona fide lease or tenancy or a tenancy atwill."
Id.
[FN4] The "[j]ust cause" that permits a foreclosing owner to evict a tenant includesnonpayment of rent; refusal to renew or extend a written lease that has expired; nuisance,damage or interference with quiet enjoyment caused by the tenant; the tenant's use of theproperty for illegal purposes; or the tenant's failure to permit reasonable access to the propertyfor necessary repairs or improvements.
Id.
The statute provides a fine of not less than $5,000 for "[a] foreclosing owner that evicts a tenant
in violation of this chapter," and specifies that "[e]ach such illegal eviction shall constitute aseparate offense." G.L. c. 186A, § 6. It is also a defense to an "eviction proceeding" that "theforeclosing owner attempted to evict a tenant in violation of this chapter."
Id.
Apart from the provisions prohibiting eviction without just cause, c. 186A seeks to ensure thattenants in foreclosed residential properties be informed of the name, address, and telephonenumber of the foreclosing owner and the building manager, and the address to which rent shouldbe sent, no later than thirty days after the foreclosure. G.L. c. 186A, § 3. This notice must beprovided in three ways: by posting in a prominent location in the building, by first class mail toeach unit, and by sliding the information under the door of each unit.
Id.
A foreclosing owner"shall not evict a tenant" for just cause until the notice required by G.L. c. 186A, § 3, is postedand delivered, or until thirty days after the posting and delivery of the notice, depending on thenature of the action that constitutes just cause. G.L. c. 186A, § 4 (
a
) & (
b
). [FN5]The act included an emergency preamble that made it effective immediately on its enactment onAugust 7, 2010, rather than ninety days later as ordinarily required by art. 48 of the Amendmentsto the Massachusetts Constitution. This preamble declared the act an "emergency law" andprovided that the "deferred operation of this act would tend to defeat its purpose, which is toprotect forthwith the citizens and neighborhoods of the commonwealth." St.2010, c. 258,Preamble.The legislative history of the act demonstrates that the Legislature, in promulgating the act,including c. 186A, was attempting to address the problem that large numbers of residentialtenants were being evicted and left homeless by institutional lenders and other entities thatpurchased foreclosed houses and apartment buildings. Legislators appeared to be concerned thatempty, foreclosed homes and apartments were scarring neighborhoods and lowering propertyvalues, that large numbers of former tenants were now homeless, and that the increase in thehomeless population was placing a greater burden on already strained State and local finances.[FN6]
Discussion.
Fannie Mae argues that because it had already purchased the subject property at theforeclosure sale, served a notice to quit, waited for the statutory period to run, and filed asummary process complaint before c. 186A went into effect, the judge improperly gaveretroactive effect to c. 186A when she concluded that the newly enacted statute barred FannieMae from evicting Nunez without just cause."Whether a statutory enactment applies prospectively or retrospectively is a question of legislative intent."
Fleet Nat'l Bank v. Commissioner of Revenue,
448 Mass. 441, 448 (2007). Wehave applied general rules of thumb in determining whether the Legislature intended prospectiveor retroactive application of a statute:"As a general matter, 'all statutes are prospective in their operation, unless an intention that theyshall be retrospective appears by necessary implication from their words, context or objects whenconsidered in the light of the subject matter, the pre-existing state of the law and the effect uponexistent rights, remedies and obligations. Doubtless all legislation commonly looks to the future,not to the past, and has no retroactive effect unless such effect manifestly is required by
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FNMA v. Nunez
Federal National Mortgage Assn v. Nunez: Mass. SJC rules in tenant foreclosure case.
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