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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. § 14043e-

11(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. § 14043e-

11(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.
