Allеging that the defendant, Gertrude A. Clermont, was an “owner” of certain residential premises in Lowell, the plaintiff, Michael Bellemare, asserted claims against her and others for childhood lead paint poisoning allegedly contracted while he was under the age of six and a resident at the property. See G. L. c. 111, § 199. A judge of the Housing Court allowed the defendant’s motion for summary judgment, ruling that, “[i]n the unique circumstances of this case, it could not be found that [the
1. Background. For purposes of the summary judgment proceeding, the material facts are not disputed. On September 1, 1977, an instrument prepared by Attorney Francis K. Monarski, now deceased, created the R.D. and L. Realty Trust (trust) as a vehicle by which his client, Raymond J. Descheneaux, would hоld real estate. Raymond J. Descheneaux and his wife, Gloria Descheneaux, were, either individually or together, the shareholders
The plaintiff was bom on March 1, 1983, and resided at the premises from March, 1984, to September or October, 1985. At the time, the premises contained a hazardous level of lead on both its exterior and interior surfaces in violation of applicable law. See St. 1971, c. 1081, § 1, inserting §§ 190-199 in G. L. c. 111. The plaintiff was diagnosed with lead pоisoning in the fall of 1985, and has experienced ensuing effects.
The defendant served as a cotrustee of the trust from its creation on September 1, 1977, until she resigned from the posi-
In 2004, the plaintiff commenced this action seeking damages for his injuries from the defendant, individually and as trustee; from Raymond J. Descheneaux, individually and as trustee; and from Gloria Descheneaux, individually. The complaint alleges violations by the defendants of the lead poisoning prevention act, warranty of habitability, and G. L. c. 186, § 14, regarding quiet enjoyment.
2. Discussion. As adopted in 1971, and in effect at the time of events in this case, the statute governing lead poisoning prevention and control provided, in sections relevant to the present case, that “[wjhenever a child or children under six years of age resides in any residential premises in which any paint, plaster or other accessible materials contain dangerous levels of lead as defined . . . , the owner shall remove or cover said paint, plaster or other material so as to make it inaccessible to children under six years of age” (emphasis supplied). G. L. c. Ill, § 197. A violation of § 197 “may be treated by any party as a violation of the state
These sections impose strict liability. “[Njeither negligence nor knowledge of the risk is an element of liability under the first paragraph of § 199.” Bencosme v. Kokoras,
When the lead poisoning law was approved in 1971, the term “owner” was not defined. The cause of action in the present case arose in 1984 when the plaintiff first lived at the premises and while the version of the law that lacked a definition of “owner” was in effect. The statute remained in place with the term undefined until 1994, when a definitions section was added. See G. L. c. Ill, § 189A, inserted by St. 1993, c. 482, § 3. That new § 189A provides, in relevant part, that an “owner” is “any person who alone or jointly or severally with others (i) has legal title to any premises; [or] (ii) has charge or
We are not persuaded that the change in the statute that defined “owner” as indicated above can be treated quite so casually. A trastee in the defendant’s position at that time could reasonably have construed the term as referring to one who has an economic interest in, and control of, the рroperty, i.e., one with the normal incidents of ownership. That the Legislature chooses to expand the definition for regulatory purposes does not mean that newly created exposure (if it is indeed newly created) can necessarily be imposed on a defendant retroactively. See St. Germaine v. Pendergast,
It appears from the circumstances at the time that Attorney Monarski, as well as his clients (Raymond and Gloria Desche-neaux), contemplated that title to the premises would be held in a so-called “nominee trust.” Such a trust has been defined, unlike a traditional donative trust, as “an entity created for the purpose of holding legal title to property with the trustees having only perfunctory duties.” Morrison v. Lennett, 415 Mass.
In the nominee trust context, the trustees act only at the direction of the beneficiaries. Roberts v. Roberts,
We are persuaded that a nominee trust was intended because it is obvious that the trust beneficiaries (shareholders) intended to control the property themselves аnd did not plan to delegate that control to their attorney’s secretary. Furthermore, there were no occasions on which the defendant sought to exercise authority with respect to the trust property, and no benefits of any kind that the defendant realized as a result of her position as trustee. Her contention that she agreed to have her name used as trustee only as an accommodatiоn to her employer’s clients appears to be accurate.
We are confronted, therefore, with a distinction between what the beneficiaries, the trustees, and the parties’ counsel intended to create (i.e., an entity controlled by the beneficiaries as the real parties in interest), and the legal effect of the written instrument that they employed for the purpose (i.e., a declaration of trust that conferred unintended powers on the trustees, including the defendant). Were the evidence in conflict with respect to the parties’ intentions, we would of course be greatly influenced, if not governed altogether, by the language of the written agreement. Where, however, the written agreement is so plainly inconsistent with the parties’ purposes, see Barker v. Barker,
Instruments, including declarations of trust, that contain drafting errors are frequently reformed once the existence of a mistake is established by “full, clear, and decisive proof.” Barker v. Barker, supra, quoting from Berman v. Sandler,
We therefore treat the defendant in the capacity that the parties contemplated, i.e., a nominee trustee, and conclude that the Legislature did not intend that she be exposed to liability under the lead poisoning statute either before or after the amendment effective in 1994.
Affirming the dismissal of the complaint, the Supreme Judicial Court concluded that “the bank is not in actual physical possession and hence, is not an ‘owner’ for purposes of imposing criminal sanctions under the lead paint statute.” Ibid. The decision is instructive because the bank, as mortgagee, in fact held a bare legal title to the real estate as soon as the mortgage deed was given. “[I]n Massachusetts, the granting of a mortgage vests [legal] title in the mortgagee to the land placed as security for the underlying debt,” with the mortgagor retaining an equitable interest. Biliouris v. Biliouris,
Applying similar reasoning, we do not believe that, even were it to apply retroactively, the addition of § 189A to G. L. c. 111, see St. 1993, c. 482, § 3, whereby a definition of the term “owner” was added, was intended to bring about application of the statute to one in the defendant’s position. That § 189A now defines “owner” as one who “has legal title to any premises” should not be read out of context and employed to impose liability on one who is effectively an agent for a principal; who possessеs “only the barest incidents of ownership,” Morrison v. Lennett,
The plaintiff asserts alternatively that the defendant is an “owner” for the purposes of lead poisoning liability because she, alone or jointly with others, had “charge or control of [the] premises as an agent who has authority to expend money for compliance with the state sanitary code.” G. L. c. 111, § 189A.
Furthermore, the summary judgment record established that the defendant not only had no financial interest in the trust property, but also that she never held or exercised any independent authority with respect to it. The defendant stated in an affidavit that she “never derived any benefit from the subject property, never received any compensation or income from the property, and never exercised any management or control of the property.” The plaintiff offered no contrary evidence to dispute these factual assertions, relying as he did on the defendant’s status as an “owner” to assert liability against her irrespective оf her role with regard to the property. The judge was therefore entitled to accept the defendant’s statements as establishing the fact that she exercised no authority over the property. See Mass.R.Civ.P. 56(e),
Judgment affirmed.
Notes
The trust instrument uses the term “shareholders” rather than “beneficiaries.” See discussion infra.
We take notice that, at least at the time in question, it was a common practice for lawyers whose clients were involved in real estate transactions to create trusts to which the prоperty would be conveyed, and to designate an office employee, often a secretary, to serve as a nominal trustee. For further discussion of the so-called “nominee trust,” see infra.
On May 31, 1979, Raymond J. Descheneaux resigned as a trustee of the trust and was replaced by his wife, Gloria Descheneaux.
The plaintiff has not made separate arguments with respect to the warranty of habitability or the right to quiet enjoyment. We assume that those claims stand or fall with a determination whether the defendant is an owner for the purposes of this case.
An accompanying claim by the plaintiff in Underwood v. Risman, supra, under G. L. c. 111, § 199, failed because the defendant had not been the owner of the real estate at the time that the plaintiff was allegedly injured.
Substantially similar language had already appeared in an applicable regulation of the Department of Public Health аdopted in 1989. See 105 Code Mass. Regs. § 460.020 (1989).
Our application of what the parties intended, as opposed to what they wrote, is not unfair to the plaintiff. There is no suggestion in the record that he, or anyone related to him, relied in any way on the trust instrument when they rented and resided at the premises. They were entitled to rely only on their statutory right to hold responsible the “owner” of the premises, whomever the “owner” is determinеd to be.
The viability of the argument again depends on the proposition that the specifics of the definition of “owner” effective in 1994, via St. 1993, c. 482, § 3, inform the term “owner” as it was used in the 1971 version of the statute.
A further indication that the second definition of “owner” in G. L. c. Ill, § 189A, is inapplicable on this record is its requirement that the person in control of the premises also have “authority to expend money for compliance with the state sanitary code.” Yet G. L. c. 111, § 127N, inserted by St. 1974, c. 681, which authorizes a tenant in a sanitary code enforcement proceeding to join persons with “authority to decide whether to rehabilitate, or sell or otherwise dispose of the premises,” expressly exempts any person whose “decision-making authority is derived solely from its position as a fiduciary if such person has never personally had any financial or possessory interest in the premises.”