42 Mass. App. Ct. 523 | Mass. App. Ct. | 1997
It may be that the order of the Housing Court judge, from which Federal National Mortgage Association (“Fannie Mae”) appeals, is as wise and pragmatic as the posture of Fannie Mae is obtuse and bureaucratic, but there was no lawful basis for the judge’s action and we are bound to vacate it.
These consolidated cases both involve summary process evictions under G. L. c. 239 and pertain to two apartments in the same three-decker house on Cottage Street in Lynn; the third apartment was vacant. Fannie Mae had become owner of the fee title to the premises through mortgage foreclosure
At the time of the summary process proceedings in June, 1996, both sets of tenants (whom Fannie Mae, when it assumed control of the property, permitted to occupy rent free) asked for more time to find alternate quarters. Fannie Mae wanted them out by August 1, 1996. By the time this case was argued before us, the tenants had moved. The issue of possession was, therefore, moot, but the cases were not because, as to each, the judge had entered the following observations and order:
“This case, however, presents an additional consideration of safety, both to the building itself and to the neighboring public. FNMA states that it wishes to remove everyone from the building so that it can market the premises. There is no explanation given, however, why it is easier, or more profitable to market empty rather than tenanted premises, and there is no explanation given how the premises will be made and kept safe and secure after they are left unoccupied.
I am concerned about the hazards that will result if this Court’s process be used to dispossess all of the occupants from the building, leaving the premises completely vacant.
I therefore order that no execution shall issue in these cases except upon motion accompanied by a plan, which shall adequately describe the measures taken by FNMA to secure the building against vandalism, fire and destruction. GMAC Mortgage Corp. v. Grissell, N.E. Hsg. Ct. No. 92-SP-217 (June 12, 1992).”
There is nothing in the record about a State statute or
Fannie Mae, in its brief, questions the jurisdiction of the Housing Court judge to make his safe keeping order. Under Commonwealth v. Lappas, 39 Mass. App. Ct. 285, 289 (1995), the Housing Court has jurisdiction over “the use of real property and activities on it involving health, welfare and safety that are subject to public safety statutes and regulations.” The judge, therefore, had subject matter jurisdiction over public sáfety issues placed before him involving the premises. The judge did not, however, have authority to order relief no party had sought and in support of which no evidence had been offered. The judge usurped legislative and executive functions and that he may not do. On his initiative, the judge made rules for what he thought was wise care of property when it became vacant and, again on his initiative, the judge applied those rules without a request from any executive authority or private litigant. The judicial power does not go so far.
The orders of the judge in the two Housing Court cases are vacated and unconditional judgments for possession by Fannie Mae shall enter.
So ordered.
Possession of real estate under a lease given prior to execution of a mortgage of the premises is not extinguished by a foreclosure of the mortgage. Gorin v. Stroum, 288 Mass. 6, 11 (1934).
We have no doubt that the judge acted as he thought best for the neighborhood where the property was located.