Blackman's Point Homeowners' Association, Inc. v. Call

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23-P-382 Appeals Court

BLACKMAN'S POINT HOMEOWNERS' ASSOCIATION, INC., & others1 vs.
NANCY BLACKMAN CALL, trustee,2 & others.3

No. 23-P-382.

Bristol. October 23, 2023. - January 31, 2024.

Present: Green, C.J., Milkey, & Grant, JJ.

Manufactured Housing Community. Contract, Settlement agreement.
Consumer Protection Act, Unfair or deceptive act. Real
Property, Right of first refusal. Landlord and Tenant,
Reprisal against tenant. Practice, Civil, Summary
judgment, Consumer protection case.

Civil action commenced in the Southeast Division of the
Housing Court Department on March 23, 2020.

Motions for summary judgment and for judgment on the
pleadings were heard by Joseph L. Michaud, J.; a motion for
reconsideration also was considered by him; the case was heard
by Anne Kenney Chaplin, J.; and entry of judgment was ordered by
her.

1 John Flanagan and Thomas Oram.

2 Of the Blackman Realty Trust.

3 Dana Lewis Blackman and Roger Bradford Blackman, as
trustees of the Blackman Realty Trust, and Blackman's Point R.V.
& Camping, LLC.
2

Donald M. Solomon for the plaintiffs.
Steven S. Broadley for the defendants.
Andrea Joy Campbell, Attorney General, & Daniel A. Less,
Assistant Attorney General, for the Attorney General, amicus
curiae, submitted a brief.

GRANT, J. This appeal primarily concerns how the

defendants (collectively, Blackmans) may divest themselves of a

manufactured housing community (park) they own and operate.4 The

question is whether the Blackmans may discontinue the use as a

park and then sell the property, or whether the Blackmans must

offer the property for sale with the park on it. We conclude

that the Blackmans relinquished their right to discontinue the

park use under the terms of a settlement agreement executed in

1988 but remand for consideration of the Blackmans' alternative

arguments, not addressed in the Housing Court, that the

restrictions contained in the settlement agreement are

unenforceable. Separately, the homeowners' association and the

two individual plaintiffs, John Flanagan and Thomas Oram,5 argue

that they should have been awarded damages under G. L. c. 186,

§ 18, and G. L. c. 93A for acts the Blackmans took in connection

with trying to discontinue the park use. We discern no error in

4 The trustees of the Blackman Realty Trust are the record
owners of the property where the park is located. Blackman's
Point R.V. & Camping, LLC, is the licensed operator of the park.

5 Flanagan and Oram are tenants and association members.
3

the decision not to award damages under G. L. c. 186, § 18, but

because the factual predicate for the tenants' claim for

violation of G. L. c. 93A remains unresolved, we vacate the

judgment on the G. L. c. 93A claim. Accordingly, we vacate the

order allowing summary judgment for the Blackmans and declaring

that they may discontinue the park use, affirm the judgment on

the claim for violation of G. L. c. 186, § 18, and vacate the

judgment on the claim for violation of G. L. c. 93A. The matter

is remanded to the Housing Court for further proceedings

consistent with this opinion.

Background. 1. Manufactured Housing Act. We begin with a

description of the statutes governing the operation of

manufactured housing communities, which is helpful to an

understanding of the factual scenario. See Greenfield Country

Estates Tenants Ass'n v. Deep, 423 Mass. 81, 82 (1996).

"[M]anufactured housing communities provide a viable, affordable

housing option to many elderly persons and families of low and

moderate income." Id. at 83. However, manufactured housing

units often cannot be relocated, which leaves the tenants of a

manufactured housing community in peril if their landlord

decides to stop operating the community.6 See id. at 86. To

6 In 1991, the legislature amended various statutes to
replace the term "mobile home" with "manufactured housing." St.
1991, c. 481.
4

protect this vulnerable community, the Legislature enacted the

Manufactured Housing Act, G. L. c. 140, §§ 32A-32S (Manufactured

Housing Act or act). See Greenfield Country Estates Tenants

Ass'n, supra, at 82-83. "The goal of the [act] is to avoid

discontinuances of manufactured housing communities," id. at 86,

and the act sets forth procedures that landlords must follow

when seeking (1) a change of use or discontinuance of a

manufactured housing community, see G. L. c. 140, §§ 32L (7A)-

(9), or (2) to sell the land on which a manufactured housing

community is located, see G. L. c. 140, § 32R.7

2. The park. The park is located on a parcel of over

twelve acres of oceanfront land in the Brant Rock section of

Marshfield. Tenants typically occupy the park for five months

each year, from May 1 through September 30. During the months

that the park is closed to tenants, they have the option to

leave their manufactured housing units in the park.

In 1987, the homeowners' association and several individual

tenants and association members filed suit against the

Blackmans' predecessors-in-interest, who were also members of

the Blackman family.8 That complaint included allegations that

7 Among other things, G. L. c. 140, § 32R, provides "tenants
with a right of first refusal to purchase the property."
Greenfield Country Estates Tenants Ass'n, 423 Mass. at 83.

8 Because the distinction between the Blackmans and their
predecessors-in-interest is immaterial to any issue in dispute,
5

the Blackmans wrongly attempted to discontinue the park use

without following the procedures set forth in the act. To

resolve the 1987 lawsuit, the parties entered into a settlement

agreement dated March 22, 1988.

Pursuant to the terms of the settlement agreement, the

Blackmans signed an appended document that granted to the

homeowners' association a right of first refusal in the event of

a sale of the park.9 The settlement agreement also included a

variety of terms governing the Blackmans' operation of the park,

including (among other provisions) the following:

"In each year succeeding 1988 in which the Blackmans do not
notify the [homeowners'] [a]ssociation by April 1 of each
such year of any bona fide offer to buy the [p]roperty that
the Blackmans intend to accept, the Blackmans hereby agree
to reopen the [p]ark for the period from May 1 through
September 30 of each such year."

The Blackmans agreed "that they shall[] . . . obtain all

necessary operating licenses" and provide certain services to

and because the ownership of the property and operation of the
park have, at all relevant times, been in the Blackman family,
we refer to the predecessors-in-interest also as the Blackmans.

9 The Blackmans disputed that the homeowners' association or
any individual tenants had a statutory right of first refusal
pursuant to G. L. c. 140, § 32R, see note 7, supra, but agreed
to grant the homeowners' association the right of first refusal
incorporated into the settlement agreement. The settlement
agreement further provided that if the homeowners' association
exercises the right of first refusal and buys the park, it must
continue to operate the park; if within five years of the
purchase the homeowners' association sells any portion of the
park, it must pay a financial penalty to the Blackmans.
6

the tenants until the sale of the property to the homeowners'

association or the termination of the tenancies "pursuant to

paragraph 10." Paragraph 10 provided as follows:

"In the event that the [homeowners'] [a]ssociation declines
to exercise the right of first refusal granted to it by the
Blackmans and so notifies the Blackmans, or in the event
that the [homeowners'] [a]ssociation does not perform in
accordance with the terms of [the right of first refusal],
or in the event that the right of first refusal does not
apply[,] . . . all tenancies . . . shall terminate sixty
days after conveyance of the [p]roperty by the Blackmans to
a bona fide third party and the recording of the deed."

Separately, the settlement agreement included provisions setting

the rental rates for the 1988 season and limiting how rental

rates could be increased in the future.

In 2014, the Blackmans filed suit in the Housing Court

seeking to determine the parties' rights, duties, and

responsibilities under the settlement agreement. In part, the

Blackmans sought to increase the rental rates to fair market

rates. The parties agreed to a stipulated judgment, which

enjoined the Blackmans from raising the rental rates in excess

of what the settlement agreement permitted and stated that the

settlement agreement was "still in force and ha[d] not been

amended, modified, or terminated by the parties in any respect,

whether by this judgment or otherwise." The stipulated judgment

was signed by the parties and incorporated by a judge into an

order for judgment on June 4, 2018.
7

Shortly before entering into the stipulation, by a letter

dated March 29, 2018, the Blackmans notified the tenants as

follows: the Blackmans "intend to sell the land where the

[p]ark is located and to take steps to begin the process of

discontinuing its business." The Blackmans followed the March

2018 letter with two additional letters dated June 12, 2018, and

August 7, 2018, both of which stated the following: (1) the

Blackmans "intend to discontinue the use of the [p]ark and

discontinue the [p]ark's business" and (2) "[t]he discontinuance

will be effective as of the date two years after the date of

this letter." The June and August 2018 letters explained,

"The owners are taking this step because, although this has
been a family owned and operated business for many decades,
the family has concluded that the financial and management
burdens of the [p]ark are now too great. The family as a
whole intends to divest itself of this burden and pursue
other objectives."

The Blackmans' efforts to discontinue the park use prompted

the instant lawsuit, in which the homeowners' association and

the individual plaintiffs alleged that (1) under the terms of

the settlement agreement, the Blackmans relinquished their right

to discontinue the park use, (2) even if the Blackmans could

discontinue the park use, they did not follow the statutory

procedures, and (3) the Blackmans' acts were retaliatory and
8

unfair or deceptive.10 On summary judgment, a Housing Court

judge (motion judge) concluded that the Blackmans could

discontinue the park use if they complied with the procedures

set forth in G. L. c. 140, § 32L. Subsequently, following a

bench trial, a different Housing Court judge (trial judge)

concluded that the Blackmans followed the statutory procedures

for discontinuance and that the Blackmans' acts were neither

retaliatory nor unfair or deceptive.

Discussion. 1. Discontinuance. The Blackmans candidly

acknowledge that they want to discontinue the park use before

10In an amicus brief submitted to this court, the Attorney
General also asserted that the Blackmans did not follow the
statutory procedures for discontinuance pursuant to G. L.
c. 140, §§ 32L, 32R. The Attorney General explained that the
act provides two ways that landlords of manufactured housing
communities may dispose of their communities.

"[Landlords] can sell [their communities] pursuant to
§ 32R, which triggers the [tenants'] opportunity to
exercise a statutory right of first refusal . . . to
purchase the community and own and operate it as a coop, or
[landlords] can discontinue [their communities] pursuant to
§§ 32L (7A)-(9), which requires them to notify residents
what they intend to do with the property following the
[discontinuance]. They cannot have it both ways and sell
the property after they have strategically removed all the
residents in a discontinuance."

The Attorney General asserted that the Blackmans' act of seeking
to discontinue the use of the park and then sell the property
was in violation of those statutory procedures. Because it
remains uncertain whether the restriction in the settlement
agreement on discontinuing the use is enforceable, we do not
reach this issue.
9

selling the property because they believe that the property is

more valuable without the park on it. However, the park's

tenants also have rights.

If the Manufactured Housing Act were the only authority

that controlled this case, the Blackmans could discontinue the

park use by following the statutory procedures.11 However, the

settlement agreement altered the parties' rights and

responsibilities. The motion judge construed the settlement

agreement as silent on the question of whether the Blackmans

could simply discontinue the park, without first offering it for

sale either to a third party or to the homeowners' association.

To resolve what he perceived as an ambiguity created by that

omission, the motion judge read the terms of the Manufactured

Housing Act into the settlement agreement, particularly G. L.

c. 140, § 32L, which governs the termination of manufactured

housing communities.

That is not an accurate reading of the settlement

agreement. Under the settlement agreement, the Blackmans

"agree[d] to reopen the [p]ark" each year in which the Blackmans

did not notify the homeowners' association of a bona fide offer

to buy the property that the Blackmans intended to accept. The

11As discussed, see note 10, supra, we do not reach the
question whether the act would permit a landlord of a
manufactured housing community to discontinue the community only
to sell the property.
10

Blackmans also agreed to continue obtaining all necessary

operating licenses and to continue providing certain services to

the tenants. The settlement agreement mentioned termination of

the tenancies only in the context of a sale. This language is

unambiguous. According to the plain meaning of the settlement

agreement, the Blackmans agreed to relinquish the right to

discontinue the park use and, instead, agreed to continue

opening and operating the park for so long as they owned it.

See A.L. Prime Energy Consultant, Inc. v. Massachusetts Bay

Transp. Auth., 479 Mass. 419, 431 (2018) ("we analyze the

contract according to the principle that '[w]hen contract

language is unambiguous, it must be construed according to its

plain meaning'" [citation omitted]).

While the settlement agreement did not contain the precise

words that the Blackmans "shall not discontinue" the park use,

that does not alter our conclusion. The provisions requiring

the Blackmans to continue opening and operating the park simply

worded the double negative "shall not discontinue" as

affirmative statements describing the Blackmans' obligations to

continue operating the park. Accordingly, we are unpersuaded by

the Blackmans' argument that (1) the settlement agreement is

silent on the issue of discontinuance, (2) the Manufactured

Housing Act supplies the missing terms for how the Blackmans may

discontinue the park use, and (3) we should read the act's terms
11

into the settlement agreement. While it is true that the

general rule is that the "law existing at the time an agreement

is made necessarily enters into and becomes part of the

agreement," see Feakes v. Bozyczko, 373 Mass. 633, 636 (1977),

here the argument flounders on its factual premise. The

settlement agreement is not silent on discontinuance. Rather,

it precludes discontinuance by requiring the Blackmans to

continue to operate the park unless they sell it, in which case

they must first permit the homeowners' association to exercise

the right of first refusal. The Blackmans contracted away the

right to discontinue the park. We cannot read the statutory

procedures for discontinuance into a settlement agreement that

precludes discontinuance. See 11 R.A. Lord, Williston on

Contracts § 30.19 (4th ed. 2012) (doctrine of incorporating

applicable existing law into contract does not apply "when a

contrary intention is evident").

We are also unpersuaded by the Blackmans' contention that

the statute regulating discontinuance of a manufactured housing

community, G. L. c. 140, § 32L, confers an independent "right"

to discontinue the use of the property for manufactured housing.

To the contrary, the statute does not create a "right" to

discontinue use; instead, it imposes limits on any such

discontinuance. In the present case the parties contracted in

the settlement agreement to supplement the statutory limitations
12

on discontinuance with further protections for the homeowners,

including (as we have explained) an affirmative agreement to

continue operating the park until any sale, and the

establishment of a right of first refusal for the homeowners'

association.12

On summary judgment, the Blackmans argued in the

alternative that the settlement agreement's prohibition against

discontinuance is a perpetual restraint on alienation, violates

the rule against perpetuities, or is a negative easement

restricting the use of real property which under G. L. c. 184,

§ 23, would be limited to a term of thirty years.13 The motion

12Given our conclusion, we decline to address whether the
Blackmans followed the statutory procedures for discontinuance,
G. L. c. 140, § 32L. To the extent that the homeowners'
association and the individual plaintiffs argue that many of the
Blackmans' acts in seeking to discontinue the use of the park
were unfair or deceptive in violation of G. L. c. 93A, we
address those arguments infra.

13The restrictions contained in the 1988 settlement
agreement, being personal to the homeowners' association, are
not negative easements. See Snow v. Van Dam, 291 Mass. 477,
480-481 (1935). We take no position whether they nonetheless
constitute restrictions on the use of property for the purposes
of G. L. c. 184, § 23. We note that in Bortolotti v. Hayden,
449 Mass. 193, 202-205 (2007), the Supreme Judicial Court ruled
that the right of first refusal in that case was not subject to
the rule against perpetuities. The court noted, however, that
"A court might use the thirty-year window imposed by G. L.
c. 184, § 23, and G. L. c. 184A, § 5, as a general guide, . . .
and, if more than thirty years have passed since the creation of
a right of first refusal not subject to G. L. c. 184A, § 5, and
circumstances otherwise demonstrate a good reason not to enforce
the right, then enforcement could be declined on equitable
13

judge declined to reach those issues, instead granting summary

judgment on the sole ground that G. L. c. 140, § 32L, permitted

the Blackmans to discontinue the park use. We decline to

address those issues where the judge did not address them. See

Merrimack College v. KMPG LLP, 480 Mass. 614, 629 (2018). In

these circumstances, we vacate the order granting summary

judgment and remand the case to the Housing Court for

consideration of the Blackmans' three other grounds for summary

judgment.

2. Damages. The homeowners' association and individual

plaintiffs also assign error to the trial judge's decision not

to award damages under G. L. c. 186, § 18, and G. L. c. 93A.

General Laws c. 186, § 18, prohibits

"[a]ny person or agent thereof [from] threaten[ing] to or
tak[ing] reprisals against any tenant of residential
premises for the tenant's act of, commencing, proceeding
with, or obtaining relief in any judicial or administrative
action the purpose of which action is to obtain damages
under, or otherwise enforce, any [F]ederal, [S]tate or
local law, regulation, [bylaw] or ordinance, which has as
its objective the regulation of residential premises."

The statute creates a presumption of retaliation where "notice

. . . of any substantial alteration in the terms of tenancy [is

received by the tenant] within six months after the tenant has

commenced, proceeded with, or obtained relief in such action."

grounds." Id. at 205 n.10. We express no opinion on whether
such circumstances are present here.
14

Id. The presumption is rebutted only by clear and convincing

evidence that the "action was not a reprisal against the tenant"

and that the person taking the action "had sufficient

independent justification for taking such action, and would have

in fact taken such action, in the same manner and at the same

time the action was taken, regardless of tenants engaging in, or

the belief that tenants had engaged in, activities protected

under this section." Id.

The homeowners' association and individual plaintiffs argue

that the trial judge erred in concluding that they were not

entitled to a presumption of retaliation, where the Blackmans

sent the discontinuance notices within six months of the

judgment in the 2014 lawsuit, which entered on June 4, 2018.

However, the trial judge credited the testimony of Nancy

Blackman Call that discussions regarding what to do with the

park started well before 2018, that she was eighty-four years

old, that her children were "not young either," and that no one

in the family wanted to run the business. The trial judge also

credited Blackman Call's testimony that the decision to try to

discontinue the park was not in retaliation for the prior

lawsuit, but as a result of the fact that no one in the family

wanted to run the business. These credibility determinations as

to the Blackmans' intent supported the judge's conclusion that

the Blackmans had not retaliated against "the plaintiff's
15

actions in engaging in statutorily protected activity." We

construe the trial judge's handling of the issue as, perhaps

inartfully, saying that there was no showing of retaliation,

despite the presumption, because Blackman Call's testimony

constituted the sort of clear and convincing evidence necessary

to overcome the presumption. Thus, even if the trial judge

erred in concluding that the presumption of retaliation did not

apply, the error was not prejudicial. Cf. Dahms v. Cognex

Corp., 455 Mass. 190, 207-208 (2009) (judgment affirmed where,

despite erroneous jury instruction, credibility of witness was

determinative).

The homeowners' association and individual plaintiffs also

argue that many of the Blackmans' acts in seeking to discontinue

the park use amounted to unfair or deceptive acts or business

practices in violation of G. L. c. 93A. Primarily, the

homeowners' association and individual plaintiffs rely on the

notices of discontinuance, which they assert sowed confusion as

to whether the homeowners' association would have an opportunity

to exercise its right of first refusal and, thus, whether the

tenants needed to vacate the property. The trial judge

disagreed, but her reasoning was predicated on the motion

judge's ruling that the settlement agreement did not restrict

the Blackmans from requiring the tenants to vacate the property
16

as part of a discontinuance process.14 In light of our

conclusion and the need to remand for further consideration of

the Blackmans' summary judgment arguments, we also remand the

plaintiffs' G. L. c. 93A claim for further consideration of

whether the notices of discontinuance unfairly or deceptively

sowed confusion as to whether the tenants needed to vacate the

park.15

Conclusion. So much of the judgment as declared that the

Blackmans may discontinue the use of the park is vacated. The

judgment on the claim for violation of G. L. c. 186, § 18, is

affirmed, and the judgment on the claim for violation of G. L.

c. 93A is vacated. The matter is remanded to the Housing Court

for further proceedings consistent with this opinion.16

14 The trial judge found that the Blackmans intended to
comply with the right of first refusal during the discontinuance
process and that any belief to the contrary was unreasonable.
This finding assumes that the Blackmans could require the
tenants to vacate the property in a discontinuance and then
comply with the right of first refusal.
15 The Blackmans argue that we should affirm the finding of

no liability on the G. L. c. 93A claim because there was no
evidence of an injury. See Tyler v. Michaels Stores, Inc., 464
Mass. 492, 503 (2013). However, there was testimony that some
tenants moved out of the park, that the homeowners' association
now has fewer members, and that, as a result, it will be more
difficult for the homeowners' association to exercise its right
of first refusal. Whether there was an injury, therefore, is a
matter best left to the trial judge in the first instance on
remand.

16The homeowners' association and individual plaintiffs
request appellate attorney's fees. That request is denied.
17

So ordered.