Fennelly v. Kimball Court Apartments Ltd. Partnership, 14 Mass. L. Rptr. 37 (2001)

Citation: Fennelly v. Kimball Court Apartments Ltd. Partnership, 14 Mass. L. Rptr. 37 (2001)
Parent Document: Fennelly v. Kimball Court Apartments Ltd. Partnership, 14 Mass. L. Rptr. 37 (2001)
Jurisdiction: Massachusetts (state)
Effective Date: 2001-09-25
Original Source: https://www.courtlistener.com/opinion/8354506/fennelly-v-kimball-court-apartm... ↗

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In analyzing a claim of due process, the court must first determine whether the plaintiff has a constitutionally protected property right by analyzing the nature of the interest at stake and if it finds a protected right, must then determine what process is due, taking into account competing interests. Take Five Vending, Ltd. v. Provincetown, 415 Mass. 741, 747 (1993); Lotto v. Commonwealth, 369 Mass. 775, 777 (1976). As noted by other courts, because a tenant in the Section 8 housing program is assured by statute that she will continue in occupancy in the absence of good cause for eviction, a Section 8 tenancy is a properly interest protected by the due process clause. See Swann v. Gastonia Housing Authority, 675 F.2d at 1346; Jeffries v. Georgia Residential Finance Authority, 678 F.2d 919, 925 (11th Cir.), cert. den., 459 U.S. 971 (1982). This Court thus concludes that Fennelly has a constitutionally protected properly interest in her tenancy of the Unit. Nonetheless, this Court need not engage in a lengthy analysis of what process is due Fennelly before the defendants can deprive her of her tenancy, because federal law, as expressed in the HUD-required language in the Addendum, establishes the minimum protections that are due when a landlord seeks to terminate a Section 8 tenancy, and it is undisputed that Fennelly was not afforded such protections in this case. Kimball and JRM’s conduct in declaring the Lease terminated and excluding Fennelly from the Unit following its restoration to habitability, without good cause and without commencing a summary process action, violated due pro*43cess. Accordingly, Fennelly is entitled to judgment as a matter of law on Count II of the complaint.

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