MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, APT Management Inc., appeals from judgments entered in the Housing Court dismissing its summary process complaint without prejudice and dismissing its separately filed complaint to void the tenancy under G. L. c. 139, § 19, with prejudice. For the reasons that follow, we reverse in part and affirm in part.
Background. The plaintiff is the owner of an apartment complex known as Academy Knoll Apartments. The complex consists of 109 units and is located at 22 Broad Street in Marlborough. The property receives Federal assistance pursuant to Section 8 of the U.S. Housing Act of 1937, as amended, which is administered by the U.S. Department of Housing and Urban Development and locally by MassHousing. The defendant, Stephanie Newcomb, is a tenant in the complex and has resided there since 2010. On January 22, 2020, the plaintiff served Newcomb with a notice to quit based on several alleged violations of the lease resulting primarily from Newcombs failure to maintain the premises in a good sanitary condition. The notice also alleged nonpayment of rent and violation of the no smoking policy as additional grounds for termination. The notice informed Newcomb that “your tenancy is hereby terminated, and you are hereby notified to quit, vacate, and deliver up by February 29, 2020 the premises now being held by you.” Newcomb did not vacate the premises, and the plaintiff initiated a summary process action on March 23, 2020.
2
The trial in this action was postponed due to the COVID-19 pandemic and the moratorium on evictions.
Meanwhile, while the summary process action was pending, on September 18, 2020, the plaintiff served Newcomb with a document entitled, “Notice of Voiding of Tenancy Pursuant to G. L. [c.] 139[,] § 19.” This notice (the second notice) was based on an incident that occurred on September 11, 2020, in which Newcomb allegedly committed vandalism and arson at the apartment complex. The second notice stated that the “[l]ease is hereby voided and annulled[,] and you are hereby notified to quit, vacate, and deliver up by September 23, 2020[,] the premises now being held by you.” As grounds for cancellation of the lease, the notice specified the following:
“On September 11, 2020, Marlborough Police officers were dispatched to the Premises for an attempted arson. A resident observed you with a canister-like device containing lighter/butane fluid and when the resident pas[sed] by you and followed a burning smell, she observed a door with burn marks and papers lit on fire shoved under the doorway. Other residents had notified management that they heard you having a verbal altercation with the resident in that apartment just moments earlier. After the police arrived on the scene[,] they observed items in your unit consistent with starting a fire. Following this incident[,] you were transported from the property and charged with vandalism and arson.”
On September 24, 2020, the plaintiff filed a complaint to void Newcombs tenancy pursuant to G. L. c. 139, § 19.
3
The two actions were scheduled for trial on the same day and were heard together by agreement.
4
The plaintiff called two witnesses: the property manager, Jill Cooney, and a tenant, Susan Lundy. Cooney testified about the poor condition of Newcombs apartment as observed during inspections conducted in May 2019 and December 2020. The kitchen walls were damaged, kitchen cabinet doors were missing, and the apartment was full of clutter, trash, and debris. There were cigarette burns in the carpet and cigarette butts were found on a coffee table. Cooney also addressed Newcombs payment history and testified that Newcomb was in arrears in rent.
Lundy testified about the arson incident. She related that on September 11, 2020, at around 6 a.m., she was visiting her mother, who lived near Newcomb, when she observed Newcomb holding paper towels and a canister. Upon seeing Lundy, Newcomb stated, “You caught me.” Soon thereafter, Lundy smelled something burning and then saw paper towels, varnish, and burn marks on the outside of a neighbors door.
Newcomb did not present any witnesses, but testified on her own behalf. She denied causing any damage to her apartment and disputed the amount of rent she owed. She further claimed that she was not arrested or charged with a crime in connection to the events observed by Lundy on September 11th.
The judge found that Newcomb had failed to pay rent and although she made sporadic payments after the first notice to quit was served, she was $3,312 in arrears at the time of trial. The judge further concluded that Newcomb had violated several provisions of her lease. With regard to the plaintiffs G. L. c. 139, § 19 complaint, the judge found that the plaintiff had failed to carry its burden to demonstrate that Newcomb had committed arson and dismissed the complaint with prejudice.
Although the judge found that the plaintiff had prevailed in its summary process action, he entered judgment in favor of Newcomb. He reasoned that because the two notices were inconsistent, the serving of the second notice in connection with the G. L. c. 139, § 19 complaint effectively rendered the first notice to quit null and void. As the judge put it:
“Massachusetts trial court decisions that have addressed this issue have taken the position that either (1) the service of multiple notices to quit purporting to terminate the tenancy for different reasons on different dates violates the legal requirement that a notice to quit must be clear and unambiguous and requires dismissal of any subsequent summary process action based upon either notice ․; or (2) the service of the second notice to quit waives the landlords right to proceed under an earlier served notice to quit․”
“The service of multiple notices to quit for conflicting reasons violates the requirement that a notice to quit be clear and unambiguous. The Court rules that the service of the Second Notice to Quit waived [the landlord]’s right to proceed under the First Notice to Quit. A landlord must ‘choose one position and stick with it.’ ․ The [p]laintiff did not satisfy its burden under G. L. c. 139, § 19, it cannot be awarded possession. The Court found there was evidence to support the claims for non payment [sic] of rent and Lease violations and will dismiss those claims without prejudice.”
Discussion. The plaintiff first argues that the judge incorrectly found that it sent two notices to quit insofar as the first notice was sent under the summary process statute, G. L. c. 239, § 1, and sought possession for violations of the lease agreement and nonpayment, and the second notice was sent pursuant to G. L. c. 121B, § 32, as required by G. L. c. 139, § 19, and sought to void the lease based on alleged criminal conduct. In other words, the plaintiff argues that notice to void a tenancy under G. L. c. 139, § 19, does not constitute a notice to quit. As a result, the plaintiff asserts that it did not serve inconsistent notices to quit. We agree.
The plaintiff correctly notes that it pursued two actions against Newcomb: one under the summary process statute in which it sought possession; and another under G. L. c. 139, § 19, in which it sought equitable relief. Each action was based on separate and independent grounds. The plaintiff maintains, and we agree, that it was not prevented from pursuing relief under both statutes. The case of Maguire v. Haddad, 325 Mass. 590 (1950), on which the judge relied, is not applicable.
5
In that case, the court held that the notice to quit was equivocal because, on the one hand, it demanded possession of the premises for nonpayment of rent, and, on the other hand, it invited the tenant to remain in possession at an increased monthly amount. Nothing similar occurred here. There is nothing improper about seeking possession of the premises on one ground and seeking to void the tenancy on another, as long as those grounds are articulated and notice of them is given to the tenant. Furthermore, even if we were to assume that the two notices at issue created an ambiguity as to the date Newcomb was required to vacate the premises, it is clear that no ambiguity existed by the time of trial. We note that Newcomb was still in possession of the premises when she appeared in court via videoconference for trial on December 15, 2020. She did not express any confusion regarding the notices and defended herself against both the summary process action and the G. L. c. 139, § 19 complaint. Accordingly, we discern no sound factual basis for the judges decision that the two notices created an ambiguity and no sound legal basis for the judges conclusion that the plaintiff waived its right to proceed in the summary process action because it subsequently filed a complaint under G. L. c. 139, § 19. Moreover, we fail to see how the plaintiff could, as the judge stated, “choose one position and stick with it” when the alleged criminal activity on which the G. L. c. 139, § 19 complaint was based occurred months after the summary process action was filed. Clearly, the plaintiff had an obligation to act and not ignore the risk that Newcombs conduct posed to the safety and well-being of the other tenants. For these reasons, the judgment entered in favor of Newcomb in the summary process action is reversed, and, in its place, an order of judgment in favor of the plaintiff shall enter.
Next, the plaintiff argues that the judge erroneously concluded that Newcomb did not commit arson and, as a result, its G. L. c. 139, § 19 complaint should not have been dismissed. While we might not have reached the same conclusion as the judge, it appears that his decision was based on his assessment of Lundys and Newcombs credibility, both of whom gave conflicting accounts of the events in question. Because we cannot disturb a trial judges assessment of a witnesss credibility, see Buster v. George W. Moore, Inc., 438 Mass. 635, 644 (2003), we affirm the judgment dismissing the plaintiffs G. L. c. 139, § 19 complaint.
So ordered.
Affirmed
FOOTNOTES
2
. It is not clear from the record whether the complaint was filed on March 16, 2020, as the judge states in his Findings of Fact, Rulings of Law and Order of Judgment, or on March 23, 2020, as indicated by the docket. Nothing turns on this discrepancy.
3
. General Laws c. 139, § 19, in relevant part, provides that “if a tenant ․ [of] federal or state assisted housing commits an act or acts which would constitute a crime involving the use or threatened use of force or violence against the person of an employee ․ of state or federally assisted housing or against any person while such person is legally present on the premises ․ of federal or state assisted housing, such use or conduct shall, at the election of the lessor or owner, annul and make void the lease or other title under which such tenant or occupant holds possession and, without any act of the lessor or owner shall cause the right of possession to revert and vest in him, and the lessor or owner may seek an order requiring the tenant to vacate the premises or may avail himself of the remedy provided in chapter two hundred and thirty-nine.”
4
. The two actions were tried “simultaneously,” but were not consolidated, and separate judgments were entered in each action.
5
. The judge also relied on three decisions issued by two Housing Court judges and one District Court judge in the cases of English vs. Munroe, Boston Hous. Ct., No. 43972 (July 10, 1987); Thomas vs. Pelletier, Hampden Hous. Ct., No. SP2006-S87 (May 23, 1987); and Nichiniello vs. Akerly, Somerville Dist. Ct., No. CV-910 (Oct. 30, 1990). None of these decisions are binding on this court, and, in any event, all three are distinguishable.