WEBVTT

1
00:00:00.000 --> 00:00:05.000
<v ->SJC-13286, Jason Dacey v Sandy Burgess.</v>

2
00:00:05.190 --> 00:00:06.440
<v ->Okay, Attorney Collier.</v>

3
00:00:10.560 --> 00:00:12.483
<v ->Chief Justice, Justices.</v>

4
00:00:13.380 --> 00:00:15.720
Mr. Dacey, a disabled father of three,

5
00:00:15.720 --> 00:00:18.900
walked into housing court seeking a restraining order

6
00:00:18.900 --> 00:00:21.840
for repair of conditions in his property.

7
00:00:21.840 --> 00:00:25.080
Instead of a judicial hearing, he was steered into mediation

8
00:00:25.080 --> 00:00:29.853
and he left that courthouse that day evicted.

9
00:00:30.870 --> 00:00:32.461
The housing courts enforced-

10
00:00:32.461 --> 00:00:34.170
<v ->He didn't leave it evicted.</v>

11
00:00:34.170 --> 00:00:38.430
He left it with how many, what did he leave with?

12
00:00:38.430 --> 00:00:40.470
He left with a free month.

13
00:00:40.470 --> 00:00:43.443
And how many years of, or how many months?

14
00:00:44.310 --> 00:00:45.390
What are the facts?

15
00:00:45.390 --> 00:00:49.530
<v ->The facts are that the execution</v>

16
00:00:49.530 --> 00:00:51.570
couldn't issue until that summer.

17
00:00:51.570 --> 00:00:54.261
Not years, Your Honor, that summer.

18
00:00:54.261 --> 00:00:55.775
And then, of course-
<v ->It didn't issue that summer,</v>

19
00:00:55.775 --> 00:00:56.608
he got it-
<v ->The COVID-</v>

20
00:00:56.608 --> 00:00:57.441
<v ->Didn't issue that summer.</v>

21
00:00:57.441 --> 00:00:59.580
It was to stay for another year.

22
00:00:59.580 --> 00:01:01.380
<v ->Yes, but that was not as a result</v>

23
00:01:01.380 --> 00:01:03.570
of the court's order or of the eviction.

24
00:01:03.570 --> 00:01:07.050
That was as a result of the COVID stay, Your Honor.

25
00:01:07.050 --> 00:01:10.110
What he walked out with that day

26
00:01:10.110 --> 00:01:12.690
was an order that permitted his eviction,

27
00:01:12.690 --> 00:01:14.430
despite the language in the agreement

28
00:01:14.430 --> 00:01:19.380
that said only that he would be leaving voluntarily.

29
00:01:19.380 --> 00:01:22.800
But regardless, Your Honors, that decision

30
00:01:22.800 --> 00:01:25.620
and the housing court's enforcement of it

31
00:01:25.620 --> 00:01:28.397
violated the straight up statute that says-

32
00:01:28.397 --> 00:01:29.820
<v ->Can I ask a question?</v>

33
00:01:29.820 --> 00:01:31.650
I just want to try to pin this down.

34
00:01:31.650 --> 00:01:36.650
So you're a landlord and you have a tenant.

35
00:01:36.960 --> 00:01:38.913
The tenant's not paying.

36
00:01:39.780 --> 00:01:41.943
You like the tenant, you work out a deal.

37
00:01:44.130 --> 00:01:47.040
Just between yourselves, you work out a deal.

38
00:01:47.040 --> 00:01:49.680
I'm gonna let you stay two more, three more months,

39
00:01:49.680 --> 00:01:50.670
and then you're gonna leave.

40
00:01:50.670 --> 00:01:52.590
And the tenant says, great.

41
00:01:52.590 --> 00:01:55.270
And they actually write that down

42
00:01:57.480 --> 00:02:01.473
and then the tenant changes his mind five months later.

43
00:02:02.430 --> 00:02:04.593
Is that also unenforceable?

44
00:02:06.000 --> 00:02:08.040
<v Collier>Your Honor, it may be enforceable</v>

45
00:02:08.040 --> 00:02:09.600
in a summary judgment case.

46
00:02:09.600 --> 00:02:10.433
<v ->But the only-</v>

47
00:02:10.433 --> 00:02:13.890
<v Collier>It's not enforceable in a sanitary</v>

48
00:02:13.890 --> 00:02:14.850
code enforcement.
<v ->So you'd have to,</v>

49
00:02:14.850 --> 00:02:18.840
so even if he leaves the property voluntarily,

50
00:02:18.840 --> 00:02:21.930
enters into agreement and walks away,

51
00:02:21.930 --> 00:02:24.300
as this happens a lot out there,

52
00:02:24.300 --> 00:02:27.480
that thing is totally unenforceable,

53
00:02:27.480 --> 00:02:28.950
you just have to use a summary,

54
00:02:28.950 --> 00:02:31.950
you gotta start over in a summary process, is that your?

55
00:02:31.950 --> 00:02:33.576
I'm just trying to understand

56
00:02:33.576 --> 00:02:37.020
what is not allowed anymore or what is.

57
00:02:37.020 --> 00:02:40.110
<v ->What the legislature said is not allowed, Your Honor,</v>

58
00:02:40.110 --> 00:02:41.127
is that no person-

59
00:02:41.127 --> 00:02:43.170
<v Kafker>But could you answer my question though?</v>

60
00:02:43.170 --> 00:02:45.090
<v ->Yes.</v>
<v ->If you voluntarily</v>

61
00:02:45.090 --> 00:02:48.780
work out a deal to leave an apartment

62
00:02:48.780 --> 00:02:52.710
and you both agree to that deal and walk away from it,

63
00:02:52.710 --> 00:02:56.700
and then you change your mind three or four months later,

64
00:02:56.700 --> 00:02:59.370
was that an illegal deal in your view?

65
00:02:59.370 --> 00:03:02.610
Does it have no legal consequence?

66
00:03:02.610 --> 00:03:04.710
<v ->Your Honor, I thought I answered.</v>

67
00:03:04.710 --> 00:03:07.770
No person shall attempt to recover possession

68
00:03:07.770 --> 00:03:10.170
other than through a summary process action.

69
00:03:10.170 --> 00:03:12.270
It does have legal consequence.

70
00:03:12.270 --> 00:03:15.630
You can seek to enforce that agreement

71
00:03:15.630 --> 00:03:17.610
through a summary process action,

72
00:03:17.610 --> 00:03:20.207
or in the language of a statute,

73
00:03:20.207 --> 00:03:23.880
another proceeding authorized by law

74
00:03:23.880 --> 00:03:25.560
for the recovery of possession.

75
00:03:25.560 --> 00:03:29.850
<v ->So all these voluntary arrangements out there</v>

76
00:03:29.850 --> 00:03:32.910
to end leases, to walk away, work out your deals,

77
00:03:32.910 --> 00:03:37.440
they're all totally extralegal in your view?

78
00:03:37.440 --> 00:03:40.470
I'm just trying to get a sense of the scope of this,

79
00:03:40.470 --> 00:03:41.880
of what you're asking.

80
00:03:41.880 --> 00:03:42.780
Is that right?

81
00:03:42.780 --> 00:03:45.120
<v ->No, Your Honor, that's not what I'm arguing.</v>

82
00:03:45.120 --> 00:03:48.030
I'm saying that those are legal agreements, Your Honor,

83
00:03:48.030 --> 00:03:51.510
just as anytime you sign a lease and it expires,

84
00:03:51.510 --> 00:03:54.750
it's a legal agreement that the tenant will move.

85
00:03:54.750 --> 00:03:58.650
But you don't get to just move them out at that point.

86
00:03:58.650 --> 00:04:00.810
To enforce that legal agreement-

87
00:04:00.810 --> 00:04:01.859
<v ->What if they left?</v>
<v ->You must bring</v>

88
00:04:01.859 --> 00:04:02.693
a separate process action.
<v ->What if they left?</v>

89
00:04:02.693 --> 00:04:06.240
If they left on their own and then changed their mind,

90
00:04:06.240 --> 00:04:07.953
was that still improper?

91
00:04:09.390 --> 00:04:11.793
<v ->Once they've surrendered possession?</v>

92
00:04:13.440 --> 00:04:14.460
Of course not, Your Honor,

93
00:04:14.460 --> 00:04:16.620
once you surrender possession-
<v ->That's okay.</v>

94
00:04:16.620 --> 00:04:18.060
<v ->You surrender possession.</v>

95
00:04:18.060 --> 00:04:19.500
You don't have a right to go back

96
00:04:19.500 --> 00:04:21.630
and say, you have to evict me,

97
00:04:21.630 --> 00:04:23.790
because you couldn't be evicted at that point.

98
00:04:23.790 --> 00:04:25.721
You no longer have possession, Your Honor,

99
00:04:25.721 --> 00:04:28.950
in the language of this court in Hatcher.

100
00:04:28.950 --> 00:04:32.550
<v ->Okay, so at least we're not undermining all of that.</v>

101
00:04:32.550 --> 00:04:34.740
Once you've left, we don't have to worry about this.

102
00:04:34.740 --> 00:04:35.573
I'm just trying to understand.

103
00:04:35.573 --> 00:04:36.406
<v ->Exactly, Your Honor.</v>

104
00:04:36.406 --> 00:04:40.090
Voluntary agreements that the parties perform

105
00:04:40.950 --> 00:04:43.830
are perfectly legal in any context,

106
00:04:43.830 --> 00:04:45.990
including in possession of premises.

107
00:04:45.990 --> 00:04:48.600
<v ->So as soon as that person walks out,</v>

108
00:04:48.600 --> 00:04:52.440
they've lost the ability to use the summary process process.

109
00:04:52.440 --> 00:04:54.180
<v ->Because they don't have possession, Your Honor.</v>

110
00:04:54.180 --> 00:04:55.650
That's exactly right.
<v ->Okay.</v>

111
00:04:55.650 --> 00:04:58.650
For summary process rights to accrue,

112
00:04:58.650 --> 00:05:01.290
there has to be an action to recover possession.

113
00:05:01.290 --> 00:05:02.640
<v ->Okay.</v>
<v ->Once a landlord</v>

114
00:05:02.640 --> 00:05:04.410
has recovered possession,

115
00:05:04.410 --> 00:05:06.250
the landlord doesn't have to do anything.

116
00:05:06.250 --> 00:05:09.240
<v ->Okay.</v>
<v ->They now hold the property</v>

117
00:05:09.240 --> 00:05:11.220
pursuant to real property law

118
00:05:11.220 --> 00:05:14.670
and the agreement has been performed.

119
00:05:14.670 --> 00:05:17.490
It's done, there is no further question.

120
00:05:17.490 --> 00:05:20.190
But, Your Honor, I think what's important here

121
00:05:20.190 --> 00:05:22.470
is what the legislature said

122
00:05:22.470 --> 00:05:26.040
because the legislature has decided this case.

123
00:05:26.040 --> 00:05:27.519
The legislature said-

124
00:05:27.519 --> 00:05:32.519
<v Georges>You say that, but it's premised on your belief</v>

125
00:05:32.700 --> 00:05:36.300
that the only way to recover possession

126
00:05:36.300 --> 00:05:38.910
is through a summary process action.

127
00:05:38.910 --> 00:05:39.960
<v ->No I'm not.</v>

128
00:05:39.960 --> 00:05:44.520
<v ->Well, if it's not, why isn't it okay</v>

129
00:05:44.520 --> 00:05:49.290
that they go to mediation on your client's petition?

130
00:05:49.290 --> 00:05:53.340
They go to a housing court specialist, they go,

131
00:05:53.340 --> 00:05:55.380
and he got some benefit for it,

132
00:05:55.380 --> 00:05:57.840
because wasn't there some number of months

133
00:05:57.840 --> 00:06:00.240
where he was allowed to remain in possession

134
00:06:00.240 --> 00:06:03.090
without having to pay any rent?

135
00:06:03.090 --> 00:06:06.150
<v ->Your Honor, there was a single month's rent waived.</v>

136
00:06:06.150 --> 00:06:08.400
But, Your Honor, summary process law

137
00:06:08.400 --> 00:06:13.230
entitled this disabled person to a year's stay,

138
00:06:13.230 --> 00:06:16.650
eviction law entitled him to defenses,

139
00:06:16.650 --> 00:06:19.680
to access to Tenancy Preservation Project

140
00:06:19.680 --> 00:06:21.030
for a mentally ill person.

141
00:06:21.030 --> 00:06:22.500
<v Budd>Not free though, right?</v>

142
00:06:22.500 --> 00:06:23.340
<v ->Sorry?</v>

143
00:06:23.340 --> 00:06:26.160
<v ->Not stay without having to pay.</v>

144
00:06:26.160 --> 00:06:28.393
<v ->No, but this tenant never didn't pay his rent, Your Honor.</v>

145
00:06:28.393 --> 00:06:32.550
<v ->But didn't you say he didn't wanna pay the increase?</v>

146
00:06:32.550 --> 00:06:34.740
That was why this whole thing started?

147
00:06:34.740 --> 00:06:36.420
<v ->But not paying an increase is different</v>

148
00:06:36.420 --> 00:06:37.668
from not paying the rent, Your Honor.

149
00:06:37.668 --> 00:06:39.600
<v ->I understand.</v>
<v ->If a tenant doesn't consent</v>

150
00:06:39.600 --> 00:06:42.390
to an increase, the rent doesn't go up.

151
00:06:42.390 --> 00:06:44.460
So for that period of a year,

152
00:06:44.460 --> 00:06:48.510
he would've gone on lawfully paying the contract rent

153
00:06:48.510 --> 00:06:50.400
and that would've been legal.

154
00:06:50.400 --> 00:06:52.140
But more importantly, Your Honor,

155
00:06:52.140 --> 00:06:55.020
he would've had access to all the services

156
00:06:55.020 --> 00:06:57.390
that are available in the housing court

157
00:06:57.390 --> 00:06:58.980
to preserve tenancies

158
00:06:58.980 --> 00:07:01.977
and to preserve the tenancies of disabled persons.

159
00:07:01.977 --> 00:07:03.960
<v ->And are you saying you you can't waive those,</v>

160
00:07:03.960 --> 00:07:06.643
that the tenant can't waive those in any?

161
00:07:06.643 --> 00:07:08.011
<v ->The tenant cannot waive those.</v>

162
00:07:08.011 --> 00:07:09.720
And the legislature has said that.

163
00:07:09.720 --> 00:07:12.450
The legislature in saying no person

164
00:07:12.450 --> 00:07:14.430
shall attempt to recover possession

165
00:07:14.430 --> 00:07:19.320
in any manner other than through a summary process action

166
00:07:19.320 --> 00:07:23.400
or another action authorized by law

167
00:07:23.400 --> 00:07:25.304
for the recovery of possession.

168
00:07:25.304 --> 00:07:28.470
<v ->That's the last part, which isn't so clear, right,</v>

169
00:07:28.470 --> 00:07:30.510
or any other action authorized by law?

170
00:07:30.510 --> 00:07:31.800
That's why we're here.

171
00:07:31.800 --> 00:07:36.000
<v ->So, Your Honor, the argument that was made below</v>

172
00:07:36.000 --> 00:07:40.230
is that if there's a case, you can get possession.

173
00:07:40.230 --> 00:07:42.630
<v ->Well, remember, you chose the forum,</v>

174
00:07:42.630 --> 00:07:47.630
not you, but your client went into the other forum, right.

175
00:07:48.000 --> 00:07:51.360
It wasn't like he surreptitiously

176
00:07:51.360 --> 00:07:54.180
brought you into a different court.

177
00:07:54.180 --> 00:07:58.320
You brought, your client brought the other action, right.

178
00:07:58.320 --> 00:08:01.590
And then the court ordered mediation, right.

179
00:08:01.590 --> 00:08:06.590
But again, you chose the forum and you agreed to the deal.

180
00:08:10.560 --> 00:08:12.720
Now the disability thing is complicated,

181
00:08:12.720 --> 00:08:15.810
'cause I don't know, nothing was said about disability

182
00:08:15.810 --> 00:08:17.820
at the initial proceeding, right.

183
00:08:17.820 --> 00:08:21.150
The judge wasn't told or altered that this person

184
00:08:21.150 --> 00:08:22.170
had a disability.

185
00:08:22.170 --> 00:08:24.240
And by the way, doesn't the disability

186
00:08:24.240 --> 00:08:27.210
also have to relate to your ability?

187
00:08:27.210 --> 00:08:31.590
I mean, if I'm in a wheelchair, that doesn't matter as long

188
00:08:31.590 --> 00:08:33.513
as I can get into the courthouse.

189
00:08:36.300 --> 00:08:37.770
If you're arguing in a wheelchair,

190
00:08:37.770 --> 00:08:40.590
you're as equally capable of arguing, right.

191
00:08:40.590 --> 00:08:42.300
It has to be a disability that affects

192
00:08:42.300 --> 00:08:44.730
your ability to argue, right?

193
00:08:44.730 --> 00:08:47.100
<v ->Your Honor, this court has said with regard</v>

194
00:08:47.100 --> 00:08:51.120
to the reasonable accommodation issue two things.

195
00:08:51.120 --> 00:08:55.037
First, that once the court is informed of the disability-

196
00:08:55.037 --> 00:08:56.490
<v ->Right.</v>
<v ->And here, the court</v>

197
00:08:56.490 --> 00:08:57.831
was informed of the disability

198
00:08:57.831 --> 00:08:59.530
before judgment entered.
<v ->No, but the court</v>

199
00:08:59.530 --> 00:09:04.500
wasn't informed of the disability

200
00:09:04.500 --> 00:09:08.700
when your client negotiated the deal, right?

201
00:09:08.700 --> 00:09:09.990
<v ->The court was not, Your Honor,</v>

202
00:09:09.990 --> 00:09:12.567
but reasonable accommodation law literally says,

203
00:09:12.567 --> 00:09:14.610
and this court has affirmed it,

204
00:09:14.610 --> 00:09:17.220
that all the way through execution,

205
00:09:17.220 --> 00:09:20.670
the reasonable accommodation obligation survives.

206
00:09:20.670 --> 00:09:22.667
<v ->So he alerts the court now-</v>
<v ->That once you move him out,</v>

207
00:09:22.667 --> 00:09:24.000
it does not.

208
00:09:24.000 --> 00:09:27.810
<v ->When he alerts, your client alerts,</v>

209
00:09:27.810 --> 00:09:30.960
he alerts through an affidavit that says what?

210
00:09:30.960 --> 00:09:34.470
<v ->That says he receives Social Security Disability.</v>

211
00:09:34.470 --> 00:09:36.540
He's disabled by mental illness

212
00:09:36.540 --> 00:09:40.230
including bipolar mental illness and depression.

213
00:09:40.230 --> 00:09:41.063
That is-

214
00:09:41.063 --> 00:09:44.520
<v ->And that's before the judge</v>

215
00:09:44.520 --> 00:09:47.340
in enforcing the judgment right?

216
00:09:47.340 --> 00:09:49.260
<v ->Before the judgment is entered.</v>

217
00:09:49.260 --> 00:09:50.130
That's right, Your Honor.

218
00:09:50.130 --> 00:09:53.340
Before judgment for possession is issued.

219
00:09:53.340 --> 00:09:56.790
<v ->I'm just trying to make sure you're not subtly</v>

220
00:09:56.790 --> 00:09:57.993
answering that question.

221
00:10:01.494 --> 00:10:05.280
When they go into court to enforce the mediation-

222
00:10:05.280 --> 00:10:07.020
<v ->Yes.</v>
<v ->Does your client alert</v>

223
00:10:07.020 --> 00:10:08.580
to the disability issue up front

224
00:10:08.580 --> 00:10:11.160
or is this something that comes up later?

225
00:10:11.160 --> 00:10:12.750
When does it actually happen?

226
00:10:12.750 --> 00:10:15.780
<v ->The first time the disability is asserted</v>

227
00:10:15.780 --> 00:10:18.330
is in response to the landlord's motion

228
00:10:18.330 --> 00:10:19.530
to enforce the agreement.

229
00:10:19.530 --> 00:10:23.910
So before there's any judicial ruling at all,

230
00:10:23.910 --> 00:10:27.150
and Your Honor, the court's decision here

231
00:10:27.150 --> 00:10:31.170
violates everything this court has said about accommodation.

232
00:10:31.170 --> 00:10:32.003
<v ->Was there a hearing?</v>

233
00:10:32.003 --> 00:10:33.908
I can't remember, was there an actual hearing in this case?

234
00:10:33.908 --> 00:10:37.800
<v ->There was a argument on the motions,</v>

235
00:10:37.800 --> 00:10:39.570
but there was no evidentiary hearing

236
00:10:39.570 --> 00:10:42.690
or other inquiry ever conducted.

237
00:10:42.690 --> 00:10:44.610
And there is remarkably,

238
00:10:44.610 --> 00:10:46.470
in the face of this court's rulings

239
00:10:46.470 --> 00:10:48.300
in McDonough and Adjartey,

240
00:10:48.300 --> 00:10:52.170
no mention of disability in this judge's decision.

241
00:10:52.170 --> 00:10:55.950
And what this court said in Adjartey and in McDonough

242
00:10:55.950 --> 00:11:00.270
was that once a disability issue is presented to the court,

243
00:11:00.270 --> 00:11:04.710
the court must first make inquiry into the disability.

244
00:11:04.710 --> 00:11:07.800
And second, and that's this court's language,

245
00:11:07.800 --> 00:11:10.710
the court must inquire into the disability,

246
00:11:10.710 --> 00:11:15.710
and second, the court must make findings sufficient

247
00:11:15.990 --> 00:11:18.300
to permit appellate review.

248
00:11:18.300 --> 00:11:20.220
It's not just that the housing court here

249
00:11:20.220 --> 00:11:22.080
didn't make findings sufficient

250
00:11:22.080 --> 00:11:24.450
for appellate review, Your Honors,

251
00:11:24.450 --> 00:11:26.640
there's a four page decision here

252
00:11:26.640 --> 00:11:29.760
which never mentions the word disability,

253
00:11:29.760 --> 00:11:33.480
which never mentions the term reasonable accommodation.

254
00:11:33.480 --> 00:11:36.630
There is not a single finding or reference

255
00:11:36.630 --> 00:11:39.750
anywhere in the court's decision

256
00:11:39.750 --> 00:11:42.840
to the fact that Mr. Dacey was mentally ill

257
00:11:42.840 --> 00:11:45.900
and walked into a mediation where the landlord

258
00:11:45.900 --> 00:11:50.760
was represented with no idea of what was happening to him

259
00:11:50.760 --> 00:11:54.630
and walked out believing, according to his affidavit,

260
00:11:54.630 --> 00:11:58.440
that when he said he would move voluntarily,

261
00:11:58.440 --> 00:12:01.500
he could not be evicted under that agreement.

262
00:12:01.500 --> 00:12:04.620
Now, whatever else there is to say

263
00:12:04.620 --> 00:12:07.290
about the decision below here,

264
00:12:07.290 --> 00:12:12.120
you cannot say that never mentioning his disability,

265
00:12:12.120 --> 00:12:15.270
never mentioning his mental health problems,

266
00:12:15.270 --> 00:12:18.150
never mentioning his understanding

267
00:12:18.150 --> 00:12:23.150
of voluntarily moving out constitutes factual findings

268
00:12:25.770 --> 00:12:28.560
sufficient to permit appellate review.

269
00:12:28.560 --> 00:12:33.560
Similarly, endorsing the landlord's use of a mediation

270
00:12:34.860 --> 00:12:36.900
in a case brought to enforce

271
00:12:36.900 --> 00:12:40.710
the sanitary code to recover possession

272
00:12:40.710 --> 00:12:45.710
is exactly what the legislature did not agree to

273
00:12:45.750 --> 00:12:48.960
when it said you can't do it in any manner

274
00:12:48.960 --> 00:12:53.310
other than an action through chapter 239

275
00:12:53.310 --> 00:12:55.920
or other action authorized by law.

276
00:12:55.920 --> 00:12:57.240
And, Your Honors, respectfully,

277
00:12:57.240 --> 00:12:58.583
<v ->Take a minute.</v>
<v ->The legislature has said.</v>

278
00:12:58.583 --> 00:13:00.960
<v ->Can we, sorry, excuse me, judge, excuse me.</v>

279
00:13:00.960 --> 00:13:05.960
Can we just take a minute to separate the Adjartey situation

280
00:13:09.300 --> 00:13:13.020
from the subject matter jurisdiction issue just for a second

281
00:13:13.020 --> 00:13:17.750
and just specifically say when it was

282
00:13:17.750 --> 00:13:21.060
in this process specifically

283
00:13:21.060 --> 00:13:24.630
that your client alerted the judge

284
00:13:24.630 --> 00:13:29.630
to the Adjartey situation, to the disability,

285
00:13:30.630 --> 00:13:31.530
when did that happen?

286
00:13:31.530 --> 00:13:34.350
<v Collier>October of 2020 before judgment entered</v>

287
00:13:34.350 --> 00:13:35.550
in the case, Your Honor.

288
00:13:36.870 --> 00:13:39.450
<v ->And when was the first agreement?</v>

289
00:13:39.450 --> 00:13:41.820
<v Collier>The agreement was March, I believe.</v>

290
00:13:41.820 --> 00:13:42.960
No, February, Your Honor.

291
00:13:42.960 --> 00:13:47.960
February of, I'm wrong again, March of 2020.

292
00:13:49.192 --> 00:13:51.420
<v ->And then it happens in October.</v>

293
00:13:51.420 --> 00:13:55.020
Is that when this-
<v ->I misspoke, October, 2021.</v>

294
00:13:55.020 --> 00:13:56.580
Because there was a year when the

295
00:13:56.580 --> 00:13:58.170
housing court couldn't

296
00:13:58.170 --> 00:13:59.970
<v ->I'm not faulting-</v>
<v ->Couldn't issue evictions.</v>

297
00:13:59.970 --> 00:14:00.803
<v ->I'm just trying to-</v>
<v ->Yes.</v>

298
00:14:00.803 --> 00:14:05.007
<v ->I'm just trying to get at, relative to the voluntary,</v>

299
00:14:06.680 --> 00:14:10.219
the order, let's say that reflected the agreement

300
00:14:10.219 --> 00:14:15.219
and taking into account when there was a one-year stay.

301
00:14:15.240 --> 00:14:20.240
In that process, when is it specifically that the judge

302
00:14:20.820 --> 00:14:23.100
is informed of the disability issue?

303
00:14:23.100 --> 00:14:25.350
<v ->The judge was informed of the disability</v>

304
00:14:25.350 --> 00:14:28.020
in response to a motion brought immediately

305
00:14:28.020 --> 00:14:31.740
after the COVID bar expired.

306
00:14:31.740 --> 00:14:36.000
The COVID bar expired, I believe mid-September of 2021.

307
00:14:36.000 --> 00:14:41.000
The landlord promptly moved for judgment and execution,

308
00:14:41.100 --> 00:14:44.100
and the tenant in an affidavit and in a memorandum

309
00:14:44.100 --> 00:14:48.810
in response said, "I'm mentally ill, I'm disabled.

310
00:14:48.810 --> 00:14:53.220
I thought this was voluntary and it is not.

311
00:14:53.220 --> 00:14:55.140
Please don't evict me.

312
00:14:55.140 --> 00:14:58.350
It will render I and my children homeless."

313
00:14:58.350 --> 00:15:00.993
So that was in October of 2021.

314
00:15:03.840 --> 00:15:08.840
And that disability was raised before the court

315
00:15:09.270 --> 00:15:14.040
at least three times in October, in January,

316
00:15:14.040 --> 00:15:18.270
and later in January on the Rule 59 motion.

317
00:15:18.270 --> 00:15:22.770
Adjartey was cited for the court's obligation

318
00:15:22.770 --> 00:15:27.030
to inquire into, to make reasonable accommodation,

319
00:15:27.030 --> 00:15:31.410
and make findings repeatedly in this process.

320
00:15:31.410 --> 00:15:34.920
The court was cited over and over again

321
00:15:34.920 --> 00:15:37.320
to chapter 184, section 18

322
00:15:37.320 --> 00:15:40.200
saying he can't recover in any manner.

323
00:15:40.200 --> 00:15:43.230
And Your Honor, the legislature has explained

324
00:15:43.230 --> 00:15:46.650
that it believes in can't recover in any manner

325
00:15:46.650 --> 00:15:49.650
by amending chapter 139-19,

326
00:15:49.650 --> 00:15:52.710
which is the quick eviction statute,

327
00:15:52.710 --> 00:15:56.310
over and over again to expand the circumstances

328
00:15:56.310 --> 00:15:59.280
under which a landlord can recover possession

329
00:15:59.280 --> 00:16:01.650
other than through summary process.

330
00:16:01.650 --> 00:16:03.600
Used to say only for alcohol.

331
00:16:03.600 --> 00:16:05.460
Then it was amended to provide

332
00:16:05.460 --> 00:16:08.100
it could be used outside of summary process

333
00:16:08.100 --> 00:16:12.030
for alcohol and drugs, then for firearms, then for violence,

334
00:16:12.030 --> 00:16:13.980
then for public housing tenants.

335
00:16:13.980 --> 00:16:17.760
So the legislature has understood its own command

336
00:16:17.760 --> 00:16:22.290
in 184-18 as a limitation on the right to recover.

337
00:16:22.290 --> 00:16:27.210
And the court and the legislature has again and again said,

338
00:16:27.210 --> 00:16:29.850
we need to add this one to the ways you can recover

339
00:16:29.850 --> 00:16:31.650
without going through summary process

340
00:16:31.650 --> 00:16:33.480
because this is serious enough,

341
00:16:33.480 --> 00:16:37.170
so that we're not gonna make you resort to summary process.

342
00:16:37.170 --> 00:16:39.827
None of those amendments were necessary,

343
00:16:39.827 --> 00:16:44.520
if a landlord could just go in on a sanitary code action

344
00:16:44.520 --> 00:16:47.820
or in a small claims case and get a judgment,

345
00:16:47.820 --> 00:16:51.330
sue the tenant for $50, go to small claims mediation

346
00:16:51.330 --> 00:16:53.340
and get a judgment for possession.

347
00:16:53.340 --> 00:16:58.340
Go in on a, this is no different than a person filing

348
00:16:59.760 --> 00:17:01.800
for a domestic violence restraining order

349
00:17:01.800 --> 00:17:04.200
and walking out evicted.
<v ->But you brought it there.</v>

350
00:17:04.200 --> 00:17:06.300
They didn't bring it there.

351
00:17:06.300 --> 00:17:07.620
Your client brought it there.

352
00:17:07.620 --> 00:17:10.140
They didn't manipulate the process,

353
00:17:10.140 --> 00:17:13.446
you took them into that process.

354
00:17:13.446 --> 00:17:14.940
<v ->We-</v>
<v ->And then the question is,</v>

355
00:17:14.940 --> 00:17:19.940
can that mediator work out, you know, an agreement.

356
00:17:20.070 --> 00:17:21.420
Now you've raised a separate issue

357
00:17:21.420 --> 00:17:23.940
whether that mediator can work out an agreement

358
00:17:23.940 --> 00:17:25.140
with someone who's disabled.

359
00:17:25.140 --> 00:17:26.790
That's the third issue.

360
00:17:26.790 --> 00:17:31.110
But you know, the court clearly had jurisdiction over this.

361
00:17:31.110 --> 00:17:32.220
<v Collier>It had jurisdiction over the-</v>

362
00:17:32.220 --> 00:17:33.510
<v ->You brought it there.</v>

363
00:17:33.510 --> 00:17:35.790
<v ->It had jurisdiction over the parties, Your Honor,</v>

364
00:17:35.790 --> 00:17:38.880
it didn't have jurisdiction over the claim for possession.

365
00:17:38.880 --> 00:17:43.860
This is the same as a domestic violence plaintiff

366
00:17:43.860 --> 00:17:46.950
going into court for a domestic restraining order

367
00:17:46.950 --> 00:17:50.640
and walking out of the domestic violence mediation

368
00:17:50.640 --> 00:17:53.520
with them moving out of the property

369
00:17:53.520 --> 00:17:56.490
and waiving their right to live in the family home

370
00:17:56.490 --> 00:18:00.030
in response to a case that they brought

371
00:18:00.030 --> 00:18:03.180
to protect themselves from domestic violence.

372
00:18:03.180 --> 00:18:06.990
The case that Mr. Dacey brought to this court

373
00:18:06.990 --> 00:18:10.170
was a case asking for a repair order.

374
00:18:10.170 --> 00:18:12.720
It wasn't a case asking for the mediator

375
00:18:12.720 --> 00:18:14.640
to adjudicate him homeless.

376
00:18:14.640 --> 00:18:17.190
It wasn't a case asking for the mediator

377
00:18:17.190 --> 00:18:20.040
to ignore his disabilities and move him out.

378
00:18:20.040 --> 00:18:21.300
It was a case-
<v ->Counsel, can I just go back</v>

379
00:18:21.300 --> 00:18:22.410
for a second though?

380
00:18:22.410 --> 00:18:25.440
But you're not suggesting that if a plaintiff

381
00:18:25.440 --> 00:18:27.900
in a civil restraining order

382
00:18:27.900 --> 00:18:29.700
were granted an order of protection

383
00:18:29.700 --> 00:18:32.670
that ordered the defendant to vacate the premises,

384
00:18:32.670 --> 00:18:34.290
that somehow that would be unlawful

385
00:18:34.290 --> 00:18:36.390
because it's not in the context

386
00:18:36.390 --> 00:18:38.190
of a summary process action, right?

387
00:18:38.190 --> 00:18:41.550
<v ->No, Your Honor, although it's my understanding</v>

388
00:18:41.550 --> 00:18:45.060
that the domestic violence restraining order process

389
00:18:45.060 --> 00:18:50.060
requires vacating but does not adjudicate the claim

390
00:18:50.790 --> 00:18:52.560
to possession of the family home.

391
00:18:52.560 --> 00:18:53.550
<v Georges>Well, I mean-</v>

392
00:18:53.550 --> 00:18:55.470
<v ->That's gotta be done in the divorce</v>

393
00:18:55.470 --> 00:18:58.710
or in a permanent dissolution relationship.

394
00:18:58.710 --> 00:19:00.750
<v ->Well, that's talking about maybe title,</v>

395
00:19:00.750 --> 00:19:03.420
but not possession, I mean, certainly,

396
00:19:03.420 --> 00:19:06.390
but anyway, let me just go back here for a second.

397
00:19:06.390 --> 00:19:09.900
There were a variety of procedural things that happened

398
00:19:09.900 --> 00:19:14.900
between the time of the agreement in March of 2020

399
00:19:16.620 --> 00:19:19.380
and the time that it's first raised

400
00:19:19.380 --> 00:19:22.920
to the court in October of 2021.

401
00:19:22.920 --> 00:19:24.690
The parties had been back and forth

402
00:19:24.690 --> 00:19:26.400
a couple of times to the court,

403
00:19:26.400 --> 00:19:30.750
and not at any point was the issue of any disability raised.

404
00:19:30.750 --> 00:19:32.070
Why not?

405
00:19:32.070 --> 00:19:36.840
<v ->Because, Your Honor, the tenant was in those hearings</v>

406
00:19:36.840 --> 00:19:40.140
doing what the tenant understood

407
00:19:40.140 --> 00:19:42.810
the tenant was doing when it brought this case,

408
00:19:42.810 --> 00:19:44.190
which it was the tenant was trying

409
00:19:44.190 --> 00:19:46.230
to get repairs made, the bedbugs corrected,

410
00:19:46.230 --> 00:19:49.230
the other, so the tenant-
<v ->Sure, but there isn't</v>

411
00:19:49.230 --> 00:19:52.710
any allegation here that the tenant couldn't read

412
00:19:52.710 --> 00:19:55.980
or understand the terms of the agreement.

413
00:19:55.980 --> 00:19:58.650
The terms of the agreement said explicitly

414
00:19:58.650 --> 00:20:02.880
that the tenant was to vacate by August of 2021.

415
00:20:02.880 --> 00:20:06.860
There wasn't anything that was conditional about that

416
00:20:06.860 --> 00:20:10.110
or that was somehow mysterious about that.

417
00:20:10.110 --> 00:20:14.100
It said you have to leave by August of 2020.

418
00:20:14.100 --> 00:20:16.710
<v ->Yes, voluntarily, Your Honor.</v>

419
00:20:16.710 --> 00:20:19.290
There was nothing that made

420
00:20:19.290 --> 00:20:23.130
this unrepresented, mentally ill tenant

421
00:20:23.130 --> 00:20:27.390
aware that he could then be evicted

422
00:20:27.390 --> 00:20:30.183
if he did not move voluntarily,

423
00:20:31.290 --> 00:20:35.070
we can all say maybe he should have guessed

424
00:20:35.070 --> 00:20:36.450
that he was at risk of that

425
00:20:36.450 --> 00:20:39.390
and done something to vacate this agreement.

426
00:20:39.390 --> 00:20:44.390
Maybe a person who was not mentally ill, depressed

427
00:20:44.580 --> 00:20:46.860
and still trying to deal with bedbugs

428
00:20:46.860 --> 00:20:48.300
and living through the midst

429
00:20:48.300 --> 00:20:49.202
of the COVID bar.
<v ->What we're trying to do</v>

430
00:20:49.202 --> 00:20:54.202
is figure out where the Adjartey issue needs to be raised.

431
00:20:56.040 --> 00:20:57.120
Again, I'm putting aside

432
00:20:57.120 --> 00:20:58.770
the subject matter jurisdiction issue,

433
00:20:58.770 --> 00:21:00.690
because if you're right on that,

434
00:21:00.690 --> 00:21:02.730
then we don't need to address it.

435
00:21:02.730 --> 00:21:07.623
But so let's say you're in the summary process session,

436
00:21:08.490 --> 00:21:13.170
the tenants pro se, there's mediation,

437
00:21:13.170 --> 00:21:15.420
there's an agreement for judgment,

438
00:21:15.420 --> 00:21:18.060
and it's a non-payment of rent.

439
00:21:18.060 --> 00:21:22.470
And in consideration of the agreement for judgment,

440
00:21:22.470 --> 00:21:25.620
the landlord says that we're not gonna execute

441
00:21:25.620 --> 00:21:28.170
on this for two months.

442
00:21:28.170 --> 00:21:32.070
Two months passes or the day before two months passes,

443
00:21:32.070 --> 00:21:37.070
and there's a injunction from the tenant

444
00:21:37.260 --> 00:21:42.090
that there's an Adjartey issue and they're raising it now.

445
00:21:42.090 --> 00:21:43.440
Is that okay?

446
00:21:43.440 --> 00:21:44.280
<v ->Yes, Your Honor.</v>

447
00:21:44.280 --> 00:21:45.960
And this court, first,

448
00:21:45.960 --> 00:21:48.900
this court held in Bridgewater specifically

449
00:21:48.900 --> 00:21:50.670
that the tenant showing up at trial

450
00:21:50.670 --> 00:21:52.530
and never having sought accommodation

451
00:21:52.530 --> 00:21:57.420
before trial and judgment was timely asserting his right.

452
00:21:57.420 --> 00:22:00.720
And in fact, the tenant in the Bridgewater's case,

453
00:22:00.720 --> 00:22:02.730
which is this court's primary precedent

454
00:22:02.730 --> 00:22:04.650
on reasonable accommodation,

455
00:22:04.650 --> 00:22:07.290
never even said I want an accommodation.

456
00:22:07.290 --> 00:22:10.590
He showed up and testified that he was off his medication

457
00:22:10.590 --> 00:22:13.470
because his medication had been changed

458
00:22:13.470 --> 00:22:17.370
and that was his entire showing.

459
00:22:17.370 --> 00:22:21.210
And this court reversed the housing court

460
00:22:21.210 --> 00:22:24.630
and found that he was entitled to a reasonable accommodation

461
00:22:24.630 --> 00:22:27.180
and that the court's failure to do so

462
00:22:27.180 --> 00:22:30.630
violated his rights under both the federal and state

463
00:22:30.630 --> 00:22:33.600
anti-handicapped discrimination law.

464
00:22:33.600 --> 00:22:38.600
In addition, Your Honor, decisional law is unanimous

465
00:22:39.390 --> 00:22:42.900
that as long as the tenant is still in possession,

466
00:22:42.900 --> 00:22:47.190
that is until the execution is actually carried out,

467
00:22:47.190 --> 00:22:50.610
is levied upon, the court must consider

468
00:22:50.610 --> 00:22:53.310
a request for reasonable accommodation.

469
00:22:53.310 --> 00:22:55.350
This court has not weighed in on that.

470
00:22:55.350 --> 00:22:57.870
But the circuit courts around the country have.

471
00:22:57.870 --> 00:23:02.580
The housing court's practice is through execution,

472
00:23:02.580 --> 00:23:04.800
the court will require consideration

473
00:23:04.800 --> 00:23:07.050
of a reasonable accommodation.

474
00:23:07.050 --> 00:23:10.680
Here, reasonable accommodation is never mentioned.

475
00:23:10.680 --> 00:23:12.240
There's not a word.

476
00:23:12.240 --> 00:23:14.670
Here, disability is never mentioned.

477
00:23:14.670 --> 00:23:16.260
There's not a word.

478
00:23:16.260 --> 00:23:20.040
If Adjartey and McDonough mean anything, Your Honor,

479
00:23:20.040 --> 00:23:24.720
then they mean that where that issue is squarely presented

480
00:23:24.720 --> 00:23:27.510
before the court has entered a judgment,

481
00:23:27.510 --> 00:23:29.490
the court cannot enter a judgment

482
00:23:29.490 --> 00:23:32.520
without the Adjartey McDonough inquiry

483
00:23:32.520 --> 00:23:35.880
and the court can't enter a judgment

484
00:23:35.880 --> 00:23:39.030
without making sufficient findings

485
00:23:39.030 --> 00:23:42.273
to permit reasonable appellate review.

486
00:23:44.340 --> 00:23:46.503
<v ->We're gonna have to ask you to stop now.</v>

487
00:23:47.370 --> 00:23:48.203
Thank you.

488
00:23:49.380 --> 00:23:50.463
Okay, Attorney Bull.

489
00:23:51.403 --> 00:23:54.903
(papers shuffling softly)

490
00:24:07.650 --> 00:24:08.483
<v ->Good morning.</v>

491
00:24:08.483 --> 00:24:10.380
May it please record. I'm attorney Patrick Bull.

492
00:24:10.380 --> 00:24:13.080
I represent the defendant in this case.

493
00:24:13.080 --> 00:24:14.880
And to follow up on some of the questions you had,

494
00:24:14.880 --> 00:24:17.250
the judge did in fact give him a reasonable accommodation.

495
00:24:17.250 --> 00:24:19.050
When we went for the execution,

496
00:24:19.050 --> 00:24:20.880
the judge specifically said,

497
00:24:20.880 --> 00:24:22.530
I'm gonna give you up to a year,

498
00:24:22.530 --> 00:24:23.940
but I don't give it all at once,

499
00:24:23.940 --> 00:24:26.010
I give it every three months and-

500
00:24:26.010 --> 00:24:28.170
<v Kafker>But that's different from,</v>

501
00:24:28.170 --> 00:24:31.230
the disability accommodation is a different issue, the-

502
00:24:31.230 --> 00:24:32.063
<v ->Right.</v>

503
00:24:32.063 --> 00:24:35.433
<v ->Your opposing counsel says essentially this,</v>

504
00:24:36.960 --> 00:24:40.680
I mean, say we agree with you on the substance.

505
00:24:40.680 --> 00:24:45.600
That they brought you to that process,

506
00:24:45.600 --> 00:24:47.250
they have subject matter jurisdiction.

507
00:24:47.250 --> 00:24:50.070
Their mediation can work out their differences

508
00:24:50.070 --> 00:24:52.740
including him leaving the property.

509
00:24:52.740 --> 00:24:57.740
But he's now arguing that Adjartey

510
00:24:57.870 --> 00:25:01.203
has a clear disability notice provision.

511
00:25:02.730 --> 00:25:04.484
And if you're on notice,

512
00:25:04.484 --> 00:25:08.073
and he says, I notified you that I'm disabled,

513
00:25:09.030 --> 00:25:11.880
when you sought to enforce the mediation,

514
00:25:11.880 --> 00:25:14.253
the agreed upon mediation judgment.

515
00:25:15.420 --> 00:25:17.674
Doesn't the judge have to address the fact

516
00:25:17.674 --> 00:25:22.674
of whether he was competent to negotiate for himself

517
00:25:23.790 --> 00:25:24.750
in this regard?

518
00:25:24.750 --> 00:25:26.550
Doesn't he have to make certain findings

519
00:25:26.550 --> 00:25:28.260
under Adjartey to do that?

520
00:25:28.260 --> 00:25:31.230
<v ->I think the first step is that the plaintiff</v>

521
00:25:31.230 --> 00:25:34.224
has to articulate what his disability is.

522
00:25:34.224 --> 00:25:35.457
It's like saying I'm gonna give you

523
00:25:35.457 --> 00:25:37.380
a wheelchair ramp when you're dyslexic.

524
00:25:37.380 --> 00:25:38.580
It's not gonna help you.

525
00:25:38.580 --> 00:25:42.360
And to your point, nothing impacted his ability to argue.

526
00:25:42.360 --> 00:25:46.320
<v ->Well, but he's, again, and I'm not a mental health expert,</v>

527
00:25:46.320 --> 00:25:48.330
I gotta reread that affidavit,

528
00:25:48.330 --> 00:25:51.870
but he says he's bipolar and mentally ill, right?

529
00:25:51.870 --> 00:25:52.987
<v ->And depression, he says,</v>

530
00:25:52.987 --> 00:25:56.850
"I'm disabled, comma, and I have bipolar and depression."

531
00:25:56.850 --> 00:25:59.490
He told my client, according to her affidavit,

532
00:25:59.490 --> 00:26:00.450
that he had a bad back.

533
00:26:00.450 --> 00:26:03.720
That was his disability that he gets paid for, and-

534
00:26:03.720 --> 00:26:06.360
<v ->But does the judge have to make, I mean,</v>

535
00:26:06.360 --> 00:26:08.880
can we sort this out here?

536
00:26:08.880 --> 00:26:12.900
He raises issues about his mental capacities.

537
00:26:12.900 --> 00:26:16.290
He may not have done it well,

538
00:26:16.290 --> 00:26:18.630
but does the judge have to under Adjartey,

539
00:26:18.630 --> 00:26:23.630
say, okay, he's claiming, again, various things.

540
00:26:24.000 --> 00:26:26.670
I find when he went through that mediation,

541
00:26:26.670 --> 00:26:29.370
he knew what he was doing and could make that.

542
00:26:29.370 --> 00:26:31.500
Does he have to make those findings?

543
00:26:31.500 --> 00:26:33.360
<v ->I will say this, the judge in this case</v>

544
00:26:33.360 --> 00:26:35.490
dealt with Mr. Dacey, there was a number of hearings

545
00:26:35.490 --> 00:26:38.340
where he made findings about Mr. Dacey

546
00:26:38.340 --> 00:26:40.680
'cause he says in his decision that the,

547
00:26:40.680 --> 00:26:42.450
I find he wasn't coerced,

548
00:26:42.450 --> 00:26:44.705
wasn't confused about what happened.

549
00:26:44.705 --> 00:26:46.620
<v Kafker>He says that he wasn't confused?</v>

550
00:26:46.620 --> 00:26:48.297
<v ->I think, I don't have the judgment in front of me</v>

551
00:26:48.297 --> 00:26:50.010
but I think he said he definitely wasn't

552
00:26:50.010 --> 00:26:54.723
unduly influenced or coerced, I think.

553
00:26:55.860 --> 00:26:59.040
'Cause they were claiming that somehow I had tricked him

554
00:26:59.040 --> 00:27:00.993
into agreeing to leave.

555
00:27:02.196 --> 00:27:05.700
And just quickly he was given five months,

556
00:27:05.700 --> 00:27:08.400
five and a half months where he couldn't be evicted,

557
00:27:08.400 --> 00:27:09.233
by the way.

558
00:27:09.233 --> 00:27:10.350
That's what the landlord gave.

559
00:27:10.350 --> 00:27:11.537
That wasn't a concession by him.

560
00:27:11.537 --> 00:27:13.140
It was a concession by the landlord.

561
00:27:13.140 --> 00:27:14.370
<v ->And no one's suggesting-</v>
<v ->Okay.</v>

562
00:27:14.370 --> 00:27:17.310
<v ->The landlord's behaving inappropriately here.</v>

563
00:27:17.310 --> 00:27:20.103
But there are complications,

564
00:27:21.360 --> 00:27:24.210
particularly the disability issue without findings.

565
00:27:24.210 --> 00:27:28.260
I think it's, help us here if you can.

566
00:27:28.260 --> 00:27:30.960
<v ->If I may, the Sparrow case speaks to this.</v>

567
00:27:30.960 --> 00:27:32.580
And the Sparrow case specifically mentions

568
00:27:32.580 --> 00:27:34.710
that you have to give more than just an affidavit.

569
00:27:34.710 --> 00:27:37.770
You have to give medical evidence to show that.

570
00:27:37.770 --> 00:27:41.190
And my thing is, he was, to the point before,

571
00:27:41.190 --> 00:27:42.600
this was like a year and a half later

572
00:27:42.600 --> 00:27:43.530
is when he first brought it up.

573
00:27:43.530 --> 00:27:46.320
So he gets the benefit of the bargain, he gets the money,

574
00:27:46.320 --> 00:27:48.540
he gets the seven months where he can't be evicted.

575
00:27:48.540 --> 00:27:50.820
And then when, as I said in my brief,

576
00:27:50.820 --> 00:27:51.690
you get to the finish line,

577
00:27:51.690 --> 00:27:53.820
and he goes, oh, by the way, I got a mental illness stop.

578
00:27:53.820 --> 00:27:55.470
And it's just like you said,

579
00:27:55.470 --> 00:27:56.700
you come up with all these,

580
00:27:56.700 --> 00:27:58.650
you come up with an agreement

581
00:27:58.650 --> 00:28:01.630
and right before execution's about the issue, I'm sorry.

582
00:28:01.630 --> 00:28:03.990
<v ->I'm totally sympathetic</v>

583
00:28:03.990 --> 00:28:05.190
to what you're arguing-
<v ->Right.</v>

584
00:28:05.190 --> 00:28:10.190
<v ->But does the judge have to confront that and address it?</v>

585
00:28:10.350 --> 00:28:12.330
That's what I'm concerned about.

586
00:28:12.330 --> 00:28:14.970
Because the judge could simply say, guess what,

587
00:28:14.970 --> 00:28:17.670
I found him, he knew what he was doing.

588
00:28:17.670 --> 00:28:20.970
He took advantage of this and he's very clever

589
00:28:20.970 --> 00:28:22.140
and I don't buy it, you know.

590
00:28:22.140 --> 00:28:23.490
Then we're not here, right.

591
00:28:23.490 --> 00:28:26.370
<v ->Right, well, I would say that I think he has to address it</v>

592
00:28:26.370 --> 00:28:27.510
or it has to be brought up

593
00:28:27.510 --> 00:28:29.010
prior to entering into the agreement,

594
00:28:29.010 --> 00:28:30.750
because then you, again,

595
00:28:30.750 --> 00:28:32.940
you hit the nail on the head with your hypothetical,

596
00:28:32.940 --> 00:28:36.240
that could happen in every single contract

597
00:28:36.240 --> 00:28:37.365
that we have in the state of Massachusetts.

598
00:28:37.365 --> 00:28:38.198
You get to the-

599
00:28:38.198 --> 00:28:40.440
<v Lowy>A different answer to the question.</v>

600
00:28:40.440 --> 00:28:41.370
<v ->Okay.</v>
<v ->Let's say that</v>

601
00:28:41.370 --> 00:28:46.370
there's a tenant who has serious mental health issues

602
00:28:46.585 --> 00:28:50.400
and really isn't going to understand

603
00:28:50.400 --> 00:28:53.670
what's going to be happening in the mediation.

604
00:28:53.670 --> 00:28:58.670
And in the mediation, there's an agreement for judgment.

605
00:28:58.770 --> 00:29:00.720
The agreement for judgment,

606
00:29:00.720 --> 00:29:05.720
even though there's on a non-payment right to 14 days,

607
00:29:05.730 --> 00:29:08.700
there's an agreement, something significant given up,

608
00:29:08.700 --> 00:29:10.800
six months at the same rent,

609
00:29:10.800 --> 00:29:12.930
well, even throw in one month free.

610
00:29:12.930 --> 00:29:17.930
So now it's time for the execution.

611
00:29:18.300 --> 00:29:23.300
And the tenant comes in and raises the Adjartey issue

612
00:29:25.050 --> 00:29:27.030
and raises it appropriately.

613
00:29:27.030 --> 00:29:28.740
It's not just an affidavit.

614
00:29:28.740 --> 00:29:31.950
Comes in, he's got a psychotherapist willing to testify,

615
00:29:31.950 --> 00:29:33.960
he's showing the meds, it's legitimate.

616
00:29:33.960 --> 00:29:37.680
That tenant really didn't understand what was going on

617
00:29:37.680 --> 00:29:39.240
in that mediation.

618
00:29:39.240 --> 00:29:43.200
Can you raise that issue after the judgment

619
00:29:43.200 --> 00:29:45.430
on the day the execution's going to issue

620
00:29:46.504 --> 00:29:47.337
under Adjartey?
<v ->I think that would be</v>

621
00:29:47.337 --> 00:29:48.170
up to the judges.

622
00:29:48.170 --> 00:29:50.670
I think it's a much stronger case than we have here.

623
00:29:50.670 --> 00:29:54.330
So I would say I could see the judge using his discretion

624
00:29:54.330 --> 00:29:56.790
and taking that into consideration is, okay,

625
00:29:56.790 --> 00:29:58.410
I do have the evidence now.

626
00:29:58.410 --> 00:30:00.870
As opposed to what you mentioned, a one line affidavit,

627
00:30:00.870 --> 00:30:03.510
which appears to be carefully drafted,

628
00:30:03.510 --> 00:30:05.250
if you will, 'cause his disability

629
00:30:05.250 --> 00:30:07.723
that has been documented and he gets paid for

630
00:30:08.720 --> 00:30:09.867
is for a bad back and a bad neck is what he told-

631
00:30:09.867 --> 00:30:13.560
<v Lowy>The issue for us is whether or not,</v>

632
00:30:13.560 --> 00:30:15.090
it's not the timing-

633
00:30:15.090 --> 00:30:15.923
<v ->Okay.</v>

634
00:30:15.923 --> 00:30:20.670
<v ->It's whether or not there was a sufficient notice</v>

635
00:30:20.670 --> 00:30:23.040
on the disability issue,

636
00:30:23.040 --> 00:30:25.230
and whether or not once it was noticed,

637
00:30:25.230 --> 00:30:28.380
whether or not it was grounded enough

638
00:30:28.380 --> 00:30:31.158
that the judge was required to address it.

639
00:30:31.158 --> 00:30:33.720
<v ->Counsel, can I follow up on Justice Lowy's point?</v>

640
00:30:33.720 --> 00:30:36.090
Because I see this, as I dug into it,

641
00:30:36.090 --> 00:30:40.320
just maybe slightly differently than opposing counsel.

642
00:30:40.320 --> 00:30:45.060
My understanding of Adjartey was it needs to be the court,

643
00:30:45.060 --> 00:30:47.700
before we get to reasonable accommodation,

644
00:30:47.700 --> 00:30:51.240
the court needs to make a finding of disability.

645
00:30:51.240 --> 00:30:55.650
And if we look at the judge's decision in this case,

646
00:30:55.650 --> 00:31:00.060
and if not explicit, implicitly saying,

647
00:31:00.060 --> 00:31:05.060
I don't credit that you have a disability that,

648
00:31:06.150 --> 00:31:07.860
because that's the way I was looking

649
00:31:07.860 --> 00:31:09.810
at the judge's decision here,

650
00:31:09.810 --> 00:31:13.590
that it was raised at the time of looking for the execution.

651
00:31:13.590 --> 00:31:17.310
And the decision seems to discredit that.

652
00:31:17.310 --> 00:31:19.775
<v ->And I think you're correct, Your Honor.</v>

653
00:31:19.775 --> 00:31:22.020
And the judge in this case, this is why it's important.

654
00:31:22.020 --> 00:31:24.030
The judge in this case had met with Mr. Dacey,

655
00:31:24.030 --> 00:31:26.943
has spoken with Mr. Dacey on numerous occasions.

656
00:31:28.080 --> 00:31:30.946
And you can see through the court record here,

657
00:31:30.946 --> 00:31:33.600
he did not find anything credible.

658
00:31:33.600 --> 00:31:35.100
And actually said in one of his hearings

659
00:31:35.100 --> 00:31:37.380
that we talked about the subsequent bedbugs,

660
00:31:37.380 --> 00:31:38.737
he actually said to Mr. Dacey,

661
00:31:38.737 --> 00:31:41.670
"I find what you're saying to me doesn't match the facts."

662
00:31:41.670 --> 00:31:44.370
So he, I don't say didn't,

663
00:31:44.370 --> 00:31:47.250
I think he discredited Mr. Dacey's all of a sudden, again,

664
00:31:47.250 --> 00:31:50.820
we're at the finish line, I have a mental,

665
00:31:50.820 --> 00:31:53.430
Adjartey, you know, a complaint here.

666
00:31:53.430 --> 00:31:55.680
And I think the judge did discredit it.

667
00:31:55.680 --> 00:31:58.140
And again, there wasn't an evidentiary hearing,

668
00:31:58.140 --> 00:32:00.330
but there was numerous times throughout this process

669
00:32:00.330 --> 00:32:02.160
where he did deal with Mr. Dacey

670
00:32:02.160 --> 00:32:05.190
and spoke to him personally in the hearing.

671
00:32:05.190 --> 00:32:06.870
I'd been at the hearing.

672
00:32:06.870 --> 00:32:08.010
The other thing I think that was brought up,

673
00:32:08.010 --> 00:32:09.450
I don't wanna change the subject, but-

674
00:32:09.450 --> 00:32:12.100
<v ->By the way, did Mr. Dacey argue for himself</v>

675
00:32:13.440 --> 00:32:17.580
in front of Judge Puerto?

676
00:32:17.580 --> 00:32:18.720
<v ->I don't believe so.</v>

677
00:32:18.720 --> 00:32:20.760
<v ->So he was represented by counsel at that point?</v>

678
00:32:20.760 --> 00:32:21.593
<v Bull>Yes, he was.</v>

679
00:32:21.593 --> 00:32:22.426
<v ->So when you say the judge</v>

680
00:32:22.426 --> 00:32:27.426
had a lot of exposure to Mr. Dacey-

681
00:32:27.570 --> 00:32:29.270
<v ->He had brought other complaints.</v>

682
00:32:30.180 --> 00:32:31.013
<v Kafker>Other complaints.</v>

683
00:32:31.013 --> 00:32:32.580
<v ->He had brought other complaints</v>

684
00:32:32.580 --> 00:32:34.800
to the housing court that were addressed,

685
00:32:34.800 --> 00:32:36.557
I think, in one of the judge's decisions.

686
00:32:36.557 --> 00:32:37.730
<v Kafker>Okay, but that's different.</v>

687
00:32:37.730 --> 00:32:39.090
<v ->He had brought another motion, correct.</v>

688
00:32:39.090 --> 00:32:41.520
So he had dealt with Mr. Dacey.

689
00:32:41.520 --> 00:32:44.371
And quite frankly, I don't believe he found credible.

690
00:32:44.371 --> 00:32:46.180
May I touch on one other subject,

691
00:32:46.180 --> 00:32:49.207
the 184-18 that my brother had mentioned here about,

692
00:32:49.207 --> 00:32:52.620
you know, you can evict someone through, you know,

693
00:32:52.620 --> 00:32:55.890
such other proceedings as authorized by law.

694
00:32:55.890 --> 00:32:57.210
Just as a little background,

695
00:32:57.210 --> 00:32:58.380
I did some digging on this

696
00:32:58.380 --> 00:33:01.290
and the history of this statute is a little different.

697
00:33:01.290 --> 00:33:02.820
When this was first introduced,

698
00:33:02.820 --> 00:33:05.070
it was Senate bill, I think, 589,

699
00:33:05.070 --> 00:33:07.830
and it was introduced by Senator Bulger actually.

700
00:33:07.830 --> 00:33:10.000
And the title of the act was

701
00:33:10.890 --> 00:33:14.190
an act prohibiting eviction other than due process of law.

702
00:33:14.190 --> 00:33:15.023
That was the title.

703
00:33:15.023 --> 00:33:16.020
And the language was different.

704
00:33:16.020 --> 00:33:18.330
It says, you know, no person shall attempt to recover

705
00:33:18.330 --> 00:33:20.400
possession of land or tenements in any manner

706
00:33:20.400 --> 00:33:24.420
other than through an action brought pursuant to chapter 239

707
00:33:24.420 --> 00:33:27.663
or such proceedings as are authorized by statute.

708
00:33:28.500 --> 00:33:32.070
So that was then the initial bill that they filed

709
00:33:32.070 --> 00:33:33.300
and that language came out.

710
00:33:33.300 --> 00:33:35.490
So contrary to what my brother is saying

711
00:33:35.490 --> 00:33:37.680
about, hey, you gotta have another statute

712
00:33:37.680 --> 00:33:38.520
that authorized this.

713
00:33:38.520 --> 00:33:41.250
They keep amending the nuisance statute.

714
00:33:41.250 --> 00:33:42.083
That's not the case.

715
00:33:42.083 --> 00:33:46.650
184-18 wasn't set to handcuff the judiciary.

716
00:33:46.650 --> 00:33:48.270
It was to make sure there's no self-help eviction.

717
00:33:48.270 --> 00:33:50.070
They wanted someone to,

718
00:33:50.070 --> 00:33:52.430
a judicial proceeding to overlook it,

719
00:33:52.430 --> 00:33:55.170
to make sure things are going as they should.

720
00:33:55.170 --> 00:33:57.570
So, and again, they took the language out

721
00:33:57.570 --> 00:34:00.570
and now it's such other proceedings as authorized by law.

722
00:34:00.570 --> 00:34:03.360
And I think that's a very important distinction.

723
00:34:03.360 --> 00:34:04.980
If they wanted it to just be by statute,

724
00:34:04.980 --> 00:34:06.870
they could have left the language in there.

725
00:34:06.870 --> 00:34:09.900
So 239 isn't the only way

726
00:34:09.900 --> 00:34:11.673
to regain possession of a property.

727
00:34:15.870 --> 00:34:17.590
<v ->Any other questions?</v>

728
00:34:17.590 --> 00:34:18.423
<v ->Nope.</v>

729
00:34:19.258 --> 00:34:20.167
<v ->Very good.</v>

730
00:34:20.167 --> 00:34:21.203
<v Bull>Thank you very much.</v>

731
00:34:21.203 --> 00:34:23.523
You affirm the lower court decision.