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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Other courts have concluded that the eviction of a Section 8 tenant from private housing constitutes state action for purposes of the Fourteenth Amendment because there is a substantial continuing government involvement in a Section 8 tenancy: the government pays a major portion of each month’s rent to the landlord and has a direct contractual relationship with the landlord for the tenant’s benefit, and the landlord submits to significant regulation, including government imposed restrictions on the terms of the tenancy and in particular, the grounds for termination. See Swann v. Gastonia Housing Authority, 675 F.2d 1342, 1346 (4th Cir. 1982). In the present case, in addition to the general Section 8 requirements, tenancy of the Unit was governed by the Low Income Housing Tax Program, which itself requires that termination of the tenancy be for good cause, and rent and occupancy restrictions imposed by the MHFA and SHARP. See 26 U.S.C. §§42(h)(6)(B)(i) and 42(E)(ii)(I); Joint Exhibits D and E. “Here the landlords are, in return for an assured consideration, and subject to specific and continuing oversight, helping the state realize its specific prioriiy objective of providing . . . good quality housing at rents which can be afforded by those of low and moderate income.” McQueen v. Druker, 438 F.2d 781, 784 (1st Cir. 1971). Although the mere receipt of financial subsidy and subjection to some regulation are insufficient to confer the status of state actor, “when a specific governmental function is carried out by heavily subsidized private firms or individuals whose freedom of decision-making has, by contract and the reserved governmental power of continuing oversight, been circumscribed substantially more than that generally accorded an independent contractor, the coloration of state action fairly attaches.” Id. at 784-85 (finding state action in a landlord’s eviction of a tenant where the landlord purchased the property from the city redevelopment authority and was required by agreement to adhere to many standards, including limitations on rental duration, amounts and increases, admission policies, management and transfer of title). This Court concludes that the relationship between the government and Kimball and JRM with respect to the Unit is symbiotic in character and interdependent enough so that the defendants’ conduct in terminating Fennelly’s tenancy constituted state action.

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