Opinion
No. 15–P–1540.
10-18-2016
GEORGETOWNE HOMES TWO, LLC v. Rakeem PIPKIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Ednalor Pipkin appeals from the order denying her motion to intervene in a summary process action commenced against her estranged husband. Upon our review, we conclude that the Housing Court judge did not abuse his discretion in denying the motion and therefore affirm.
Background. The judge held multiple hearings on the motion to intervene and took evidence. His findings, recounted briefly infra, are supported by the evidence and are not clearly erroneous. See Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 509–510 (1997).
The plaintiff has moved to expand the record to include written findings made by the judge after the notice of appeal was filed. We see no need to expand the record. The motion is denied.
At the time Pipkin and her husband initially applied for an apartment with the plaintiff landlord, Pipkin was not a legal resident. As a result, the lease they signed in October, 2009, required a monthly rental payment of $519, a much higher amount than would be due if Pipkin had been a legal resident. In December, 2009, upon their representation to the plaintiff that Pipkin expected to obtain her “green card” and become a legal resident, the parties executed a new lease with a much reduced monthly rental payment of $180. When documentation of Pipkin's legal status was not forthcoming, Pipkin's husband executed a new lease in February, 2010, listing only himself and the parties' son as occupants; Pipkin's name was not on this lease, and she was no longer listed as an occupant. The new lease retained the $180 rental payment on the assumption that Pipkin was no longer living there.
That amount was later adjusted to lower the payment to $163, again, on the assumption that Pipkin did not reside there.
Pipkin did, in fact, vacate the apartment but only from February, 2010, through June, 2010. Pipkin testified that she left the apartment during that time because she wanted to complete her education and her husband was not supportive of that endeavor. The judge found this explanation not credible. He also found that the family made a choice to receive the benefit of the lower rent by removing Pipkin from the lease, but that Pipkin continued to reside at the apartment with the family.
Pipkin ultimately received her green card in June, 2012, and shortly thereafter went to the landlord's office and asked to be added to the lease. The landlord did not give her an application but the judge found that, at best, this was because of inattention; it was not because of spousal abuse. The judge specifically found that “if there was any reason that [Rakeem] chose not to cooperate with Mrs. Pipkin to have her added to the household, it was because the family was receiving a benefit of a ... reduced rent.” Moreover, Pipkin did not request an application form at any other time in the next thirty-five months, and no application to be added to the lease was ever submitted by Pipkin.
In May, 2015, Pipkin obtained a G.L. c. 209A abuse prevention order against her husband, and he vacated the apartment. Shortly thereafter, the plaintiff commenced this summary process action against Pipkin's husband on the ground that an unauthorized occupant (Pipkin) was residing at the apartment and because Pipkin had engaged in conduct that created disturbances on the property. Pipkin was not listed in the summary process complaint as she was not a party to the lease and was not an authorized occupant. Pipkin promptly moved to intervene on the ground that her eviction violated the Violence Against Women Act of 1994, 42 U.S.C. § 14043e–11(b)(1) (VAWA), which affords certain housing rights to the victims of domestic violence. She later amended her motion to include a claim that she should be permitted to intervene on behalf of her minor children, who were lawful occupants.
The children (the son and a later-born child) were initially listed as defendants in the summary process complaint as well, but they were removed prior to the entry of judgment. The husband never appeared or defended the action and a default judgment eventually entered against him.
The plaintiff alleged that Pipkin was involved in an altercation with its security personnel. No evidence was introduced concerning this allegation and the judge did not rely on it.
The judge rejected both bases for intervention. As to Pipkin's claim under the VAWA, he ruled that she was neither a lawful occupant nor an applicant of a housing unit subject to the VAWA, a necessary predicate for asserting its protections. He rejected her motion to intervene on behalf of her children on the ground that she could not qualify to reside in the apartment because she had participated in the fraudulent activity that had led to the termination of the tenancy.
Pipkin's assertion on appeal that fraud was unproven is not persuasive. The judge held evidentiary hearings and made findings of fact based on the leases as well as Pipkin's own admissions, concluding that Pipkin had participated in the fraudulent scheme.
Analysis. As a proposed intervener as of right, Pipkin must establish, among other criteria not at issue here, that she claims an “interest relating to the property or transaction which is the subject of the litigation in which the applicant wishes to intervene .” Bolden v. O'Connor Café of Worcester, Inc., 50 Mass.App.Ct. 56, 61 (2000). See Mass.R.Civ.P. 24(a), 365 Mass. 769 (1974). The “interest in the litigation must be ‘significantly protectable’ ... and must be sufficiently direct and immediate to justify the intervention.” Bolden, supra at 62. Whether a proposed intervener has “an interest sufficient to entitle it to intervene,” id. at 61–62, requires a “practical, case-specific, fact-intensive analysis,” id. at 62. “A judge has discretion in determining whether an intervening party has demonstrated facts that entitle him or her to intervention as of right, and we accordingly review the judge's factual findings for clear error.... Whether those facts are sufficient to meet the requirements for intervention is a question of law, however, and is reviewed as such.” Commonwealth v. Fremont Inv. & Loan, 459 Mass. 209, 217 (2011). See Guardianship of B.V.G., 474 Mass. 315, 320 (2016).
The VAWA grants to the victims of domestic violence certain protections from eviction actions. However, to be entitled to those protections, Pipkin must establish that she was “[a]n applicant for or tenant of housing assisted under a covered housing program.” 42 U.S.C. § 14043e–11(b)(1). If she makes that showing, she “may not be ... evicted from the housing on the basis that [she] is or has been a victim of domestic violence ..., if [she] otherwise qualifies for admission, assistance, participation, or occupancy” (emphasis supplied). Ibid. The judge's findings establish that Pipkin was neither a tenant nor an applicant at the time of the eviction proceedings. Having removed herself from the lease for the purpose of fraudulently reducing the family's rent, she was, at best, an unlawful occupant of the premises. Furthermore, in the absence of the submission of an application, Pipkin cannot be considered an applicant under the VAWA. Even were we to conclude that Pipkin's single verbal request to be added to the lease in 2012 made her an applicant under the VAWA, given the judge's unequivocal finding that Pipkin participated in fraud involving the premises, she could not establish she “otherwise qualifies for admission, assistance, participation, or occupancy.” Ibid.
Her claim of right to intervene on behalf of her children fails for similar reasons. Even were we to agree that, in the ordinary course, a caretaker of children may intervene to protect the interest of children who are lawful occupants, see Arsenault v. Chicopee Hous. Authy., 15 Mass.App.Ct. 939, 940941 (1983), Pipkin's fraudulent actions as found by the judge would disqualify her from continuing the tenancy, see ibid. (noting that reconstituted household may, in the end, not qualify for the tenancy). The record supports the judge's findings, and thus there is nothing to be gained by permitting Pipkin to intervene.
In addition to the two primary issues discussed supra, Pipkin argues that the judge applied an improper standard and erred in denying her request for permissive intervention. These issues need not detain us. Although the judge referenced a “good cause” standard at the beginning of one of the hearings, he applied the correct standard throughout the proceedings and in his findings. There was no error. To the extent the issue of permissive intervention was raised below, we discern no abuse of this “wholly discretionary” decision of the judge. Massachusetts Fedn. of Teachers, AFT, AFL–CIO v. School Comm. of Chelsea, 409 Mass. 203, 209 (1991).