In a case of this type, the burden of proof must be on the landlord to demonstrate "good faith" intent to use the apartment for his daughter, as specified in article XXXVIII, section 6 (a) (8) of the Brookline By-Laws; and this burden is on the landlord throughout the eviction process. Fisgeyer v. Brookline Rent Control Board, 1983 Mass. App. Div. 357, 359; Wallace v. Boston Rent Board, 12 Mass. App. Ct. 13, 15-16 (1981). In this case, the Board's findings of fact indicate that the burden of proof had been improperly shifted onto the tenants during the second hearing.
The rents for the two rental units, while mailed to the plaintiff's wife, are deposited in a joint account from which the operating expenses relating to the property are paid. Although the plaintiff's wife seems to be the contact point between the tenants and various town agencies, the plaintiff personally handles the repairs. Clearly, it is the prerogative of the Board, as sole fact finder, to assess the credibility of all the witnesses, and to believe or disbelieve, in whole or in any part, the testimony of any witness, Fisgeyer v. Brookline Rent Control Board, 1983 Mass. App. Div. 357. However, most of the exhibits introduced into evidence in this case relating to the plaintiff's ownership responsibilities were uncontroverted. Although it is obvious from the record that the plaintiff was not the person who shouldered the bulk of the management responsibilities, a finding that he is not a beneficial owner and is an owner in name only is neither supported by substantial evidence in the record nor by the Board's own subsiding findings of fact.
Unquestionably, therefore, the Board has the right, if not the duty, to inquire beyond mere appearances and to determine the true beneficial ownership of the property. In making this determination, the Board, as sole fact finder, had the prerogative of assessing the credibility of all of the witnesses, and the right to disbelieve, in whole or in part, the testimony of any witness [ Fisgeyer v. Brookline RentControl Board, et al, 1983 Mass. App. Div. 357]. It should also be noted that due weight must be accorded to the experience, technical competence, and special knowledge of the Board, as well as to the discretionary authority conferred upon it. [G.L.c. 30A § 14(7), Kahn v. Brookline Rent Control Board, 394 Mass. 709 (1985)]. Based upon the evidence taken during the hearing on the plaintiffs' application, we believe that the Board could have reasonably concluded that Joanne Kinchla was nothing more than a "straw" owner of the property and that Michael Lebner was the true "beneficial owner" thereof.
The statute and the derivatory by-law creating Brookline's rental control by-laws as well as the applicable standards are all exhaustively dealt with in earlier cases by the Supreme Judicial Court, as well as, this tribunal. Sherman v. RentControl Board of Brookline, 367 Mass. 1, 12 n. 11 (1975): Moulton v. Brookline Rent Control Board, 385 Mass. 228, 229-233 (1982): Kahn v. Brookline Rent Control Board, 1982 Mass. App. Div. 111: Fisgeyer v. Brookline Rent ControlBoard, 1983 Mass. App. Div. 357. The chain of events bringing us to this point was initiated by the landlord sending a new lease to the tenant raising the rent from $325.00 to $500.
Decker v. Boston Rent Board, etal, 13 Mass. App. Ct. 901, 907 (1982). As sole finder of fact, the Brookline Rent Control Board has the prerogative of assessing the credibility of all of the witnesses, and the right to disbelieve, in whole or in part, the testimony of any witness. Fisgeyer v. Brookline Rent Control Board, et al, 1983 Mass. App. Div. 357. Additionally, we are required to give due weight to the experience, technical competence, and special knowledge of the Board, as well as to the discretionary authority conferred upon it. G.L.c. 30A, § 14 (7), Kahn v. Brookline Rent ControlBoard, supra, 712. Article XXXVIII of the By-Laws of the Town of Brookline.
Although the general rule is that By-laws are not properly judicially noticed, Trustees of Stigmatine Fathers, Inc. v. Secretary ofAdministration and Finance, 369 Mass. 562, 568 (1976), we recently suggested that the By-law upon which the court's very jurisdiction to review the Board's action depends might be judicially noticed on the theory of the court's inherent authority to take cognizance of its own subject matter jurisdiction. Fisgeyer v. Brookline Rent Control Board, 1983 Mass. App. Div. 357 at p. 5-6. See Cohen v. Assessors ofBoston, 344 Mass. 268, 269 (1962).