Monday, July 22, 2024

The Atmark building at 80 Fawcett St. in the Cambridge Highlands. (Photo: Atmark via Yelp)

Two Cambridge tenants living in a luxury apartment building in Alewife have won an appeal against eviction that cements some renter protections and illustrates the value of having a lawyer when facing a landlord in court. The Appeals Court decision came March 4 – the same day the City Council asked the city to include money in the next city budget for legal representation for any lower-income tenant threatened with eviction in Housing Court.

The tenants, Hope Kirunge-Smith and Avery Goldman, rented an apartment at 80 Fawcett St. That building offers discounted rentals under the city’s inclusionary housing ordinance, which requires developers of market-rate projects of 10 units or more to provide a percentage of units to lower-income applicants. The court decision didn’t say whether Kirunge-Smith, Goldman and their two children were living in an inclusionary unit, but the couple qualified as indigent to have Appeals Court fees waived, and their attorney in the appeal gave them free representation.

The ruling, decided on narrow grounds, comes when eviction filings in Cambridge have been rising. Landlords sought 83 evictions for nonpayment of rent from Jan. 1 to March 4 this year, versus 60 during the same period in 2023, according to a state court dashboard on evictions. Most of the cases involve tenants in affordable housing, a common pattern.

The city’s largest low-income housing landlord, the Cambridge Housing Authority, physically evicted 10 tenants for nonpayment of rent or a combination of nonpayment and cause between 2018 and the end of last year, executive director Michael Johnston said; it filed many more eviction cases during that period. During the pandemic, federal and state law blocked landlords from carrying out eviction orders although tenants’ unpaid rent mounted. The eviction ban expired in October 2022.

Reversals of fortune

The Appeals Court decision recounted a story that was full of reversals of fortune. The court ruled that the family’s landlord, Fort Point Investments, a large real estate investment company, had waited too long to carry out the eviction decision it won. A state law gives landlords three months to request an order to evict a tenant physically after winning a case; the order is called an execution. Fort Point Investments obtained the execution within three months, but a court clerk didn’t put the building’s address on the document; when the landlord found out and mailed the defective order to its lawyer to have it sent back to the court for correction, the document got lost in the mail.

The landlord sought to resubmit the execution request almost six months after the original. A Housing Court judge agreed to issue it, saying the landlord’s delay was “excusable” because of the error and because the landlord and tenants were in negotiations, but the Appeals Court said no. The law didn’t allow exceptions for errors or negotiations, the decision said. The landlord also knew about the defective order before the three months expired and could have asked for more time then, the decision said.

Loomis

The tenants’ volunteer lawyer, Alexander H. Loomis of Quinn Emmanuel Urquhart & Sullivan, entered the case in late August 2022 as the family was on the brink of losing the apartment, he said. “I was brought in to file a motion for stay [of the eviction] pending appeal,” Loomis said. Documents in the case indicate that the motion was filed five days before the scheduled eviction, and a judge initially denied it – but reversed his ruling after Loomis asked for reconsideration and submitted information that some family members had serious health problems and they had sought money to pay back rent from the state’s Residential Assistance for Families in Transition program.

Fort Point Investors’ attorney, Eleftherios S. Papadopoulos, did not respond to a phone message seeking comment.

Before the lawyer

Before Loomis arrived, the couple had spent 17 months fighting on their own to stay in their apartment. They had missed most court dates, including some after they persuaded a Housing Court judge to schedule another hearing, and had lost their case by default because they hadn’t shown up. They argued that medical issues had prevented them from attending and that they hadn’t received notice of one date.

The tenants also raised an issue that has been important to tenant advocates: That they had applied for rent aid under the Raft program and money had gone to their landlord to pay back rent. Under the program rules, landlords had to agree not to try to evict tenants for nonpayment if they received Raft funds for the unpaid rent that they would cite in an eviction filing, they said.

Loomis said he was asked to take their case by the Volunteer Lawyers Project, which finds volunteer attorneys to represent low-income tenants facing eviction and also small landlords. The Appeals Court declined to address the fundamental question of landlords’ obligations under the Raft program, but did find that the tenants hadn’t shown that the Raft money the landlord received was the back rent covered by the landlord’s eviction filing. “Only some of the arrears were paid off by Raft funds,” the court said. Evidence showed that Fort Point got more than $26,000 from Raft in two payments, but the tenants didn’t show this wiped out their arrears, the decision said.

The court “punts” on key issue

As for the broader question of Raft requirements, that is an issue of “potentially broad significance, the resolution of which requires, among other things, a fuller record of the statutory basis of the program and of landlords’ relationship to it,” the decision said in a footnote.

“The court punted,” said Mark Martinez, a staff attorney for the Massachusetts Law Reform Institute, which filed a brief in the case siding with the tenants. Still, he said, the decision upholding a strict three-month time limit for obtaining an execution “really solidifies the protection,” he said. The landlord “wanted an exception” and the Appeals Court “was very explicit here” in denying one, Martinez said.

Loomis said he has been told that landlords’ delaying an execution request for more than three months “actually does happen. It’s not common but it’s not uncommon. The bigger issue here is that the landlord didn’t try to fix [the defective execution] right away.”

“Ultimately, the important thing here is that the judgement [allowing the execution] is reversed,” Loomis said. The tenants are still living in their apartment and Loomis said he believes Fort Point Investments has to start over if it wants to evict them.

Martinez said a coalition led by the Massachusetts Law Reform Institute had been pushing state legislators for many years to extend the right to full legal representation to tenants in eviction cases. Proponents are encouraged by a $3.5 million appropriation in Gov. Maura Healey’s proposed budget “to start that,” Martinez said; the money would not cover the full cost, he said. The measure must still be approved by legislators.