Landlord And Tenant – Jury Trial – Eviction – Public Housing

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Where a Housing Court judge upheld a decision by the New Bedford Housing Authority to terminate the lease of a tenant who, along with her family, had used force against police officers at the premises, a remand must be ordered because the tenant’s request for a jury trial should have been granted.

Tenant’s Constitutional Right To Jury Trial

“Elba Olan had been a tenant for about three years at the Presidential Heights public housing project, a federally subsidized public housing project in New Bedford owned and operated by the New Bedford Housing Authority. On July 14, 1997, the housing authority commenced an action under G.L.c. 139, Sect. 19, seeking cancellation of Olan’s lease, a declaration that her lease was void, orders that Olan and her family vacate and surrender forthwith their apartment, and a speedy trial. Its complaint alleged that Olan and her family had used force or violence against New Bedford police officers who were lawfully at her apartment on July 10.9/ Olan answered, denying the allegations and raising as defenses that the police were not lawfully at her apartment, and that the housing authority had an adequate remedy at law. She also demanded a trial by jury. A judge in the Housing Court declined to grant her a jury trial, and, after a bench trial, on August 21, 1997, granted the relief sought by the housing authority.

“Olan appealed from the judgment to the Appeals Court, claiming that (1) she was denied her right to a jury trial under art. 12 and art. 15 of the Massachusetts Declaration of Rights; (2) the housing authority failed to show that the police officers were lawfully on the property; (3) the judge erred in ordering her eviction without evidence that she had received the prior written notice required under Federal and State law; and (4) the judge abused his discretion by not affording her the opportunity to conduct pretrial discovery. The Appeals Court construed G.L.c. 139, Sect. 19, as authorizing a lessor or owner of real estate to bring an action to abate a public, or common, nuisance and, without reaching the question of the applicability of art. 15, held that, because the relief sought was predominantly punitive, art. 12 required a jury trial in such an action. It ordered the judgment vacated and remanded the case for a new trial. … We granted the housing authority’s application for further appellate review. We agree that Olan was entitled to a jury trial, but because we construe G.L.c. 139, Sect. 19, as creating a private remedy in the nature of an eviction, our holding is based on art. 15. …

“Although G.L.c. 139, Sect. 19, makes no provision for a trial by jury, neither does it foreclose trial by jury. Article 15 has been construed as preserving the right to trial by jury in actions for which a right to trial by jury was recognized at the time the Constitution of the Commonwealth was adopted in 1780. … At that time, the common law afforded a tenant the right to trial by jury on a landlord’s writ of entry, the procedure to evict a tenant after the expiration or termination of a tenancy. Thus, the right to trial by jury in eviction cases has been preserved under art. 15. …

“The controversy at hand is one that, in the words of art. 15, ‘concern[s] property,’ and is a ‘suit[] between two … persons,’ a landlord and a tenant, for which the tenant has historically and constitutionally enjoyed the right to trial by jury. Section 19 provides that a lessor or owner may obtain relief against a tenant who commits any of the acts proscribed therein either through an action for declaratory or equitable relief, or through an action under G.L.c. 239, summary process. It expresses a clear legislative intent to make available two similar remedies for the same wrong. An action pursuant to Sect. 19 produces the same result as an action for summary process; it is an action in the nature of an eviction, and it involves allegations that typically would give rise to an eviction. Although an action under Sect. 19 is equitable, to which the right to trial by jury generally does not extend, … recasting as equitable a remedy for which a right to jury trial existed at common law does not eradicate that right. … Olan is entitled to a trial by jury.”

Concurring Opinion

Sosman, J., joined by Greaney and Cordy, JJ. “While I agree that tenants who face the annulment of their lease pursuant to G.L.c. 139, Sect. 19, are entitled to a jury trial under art. 15 of the Massachusetts Declaration of Rights, nothing in art. 15 prevents the court from issuing a preliminary injunction in those cases where even the most expedited trial will not prevent the ongoing harm of violence or threatened violence on public housing premises. …

“Our decision today, upholding the tenant’s right to trial by jury, leaves intact the remedy of preliminary injunction for those cases presenting an exigent need to remove the offending tenant from the public housing premises pending trial. Appropriate use of that preliminary equitable relief is consistent with the Legislature’s determination that violence in public housing projects be remedied swiftly for the benefit of all who live and work there.”

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New Bedford Housing Authority v. Olan (Lawyers Weekly No. 10-180-01) (18 pages) (Spina, J.) (Sosman, J., joined by Greaney andCordy, JJ., concurring) (SJC) Case heard by Kyriakakis, J., in Housing Court. Martin J. Rooney for the plaintiff; Christopher J. Whittingham for the defendant; Wilbur E. Commodore submitted a brief for amicus curiae Boston Housing Authority; Richard M. Whitehill submitted a brief for the Massachusetts Chapter of the National Association of Housing & Redevelopment Officials Inc. and another, amici curiae; Richard M.W. Bauer and Judith Liben submitted an amicus curiae brief for Massachusetts Union of Public Housing Tenants (Docket No. SJC-08465).