| According to a recent Massachusetts Supreme Judicial Court decision on legal eviction procedures, Rental Property Management Services v. Hatcher, it is unlawful for a property manager or non-lawyer to prosecute a “summary process” (eviction) action on behalf of a property owner or lessor. However, this conduct alone will not give the defendant-tenant the right to prosecute a legal claim of his or her own.
The plaintiff-manager in the Hatcher case brought a Housing Court lawsuit in the name of the unincorporated “sole proprietorship” through which he allegedly managed the property in question. According to the plaintiff, he had obtained the property owner’s verbal authorization to initiate the lawsuit and evict the defendant-tenant. The defendant-tenant challenged the plaintiff’s standing to bring the lawsuit, because the plaintiff was not the “owner or lessor” of the property. For these reasons, the defendant not only attempted to dismiss the lawsuit, but she also counter-sued the plaintiff under the Massachusetts consumer-protection statute, G.L. c. 93A. The Housing Court agreed that the lawsuit should be dismissed because of the plaintiff’s lack of standing, but it did not find a consumer-protection violation. The SJC then agreed to hear the case.
The SJC decision reveals that the plaintiff had prosecuted upwards of 90 eviction cases in the same capacity for many years, without objection from his (usually pro-se) opponents, or from court staff or judges. Nevertheless, the SJC concluded that the following language of the eviction statute (G.L. c. 239, § 1) clearly requires an eviction claim to be brought by the “owner” or “lessor” of the property: “the person entitled to the land or tenements may recover possession” through a summary process action. If the plaintiff does not fall into this category, then he does not have standing to bring the suit, and the suit must be dismissed.
While the SJC seemed mildly disturbed that managers, such as the plaintiff, regularly have been prosecuting eviction cases for many years, it did not require the trial court to root out such plaintiffs in future cases. It instead suggested that the trial court’s summary process complaint form be amended to require an individual plaintiff to certify that he owns or leases the property, so that this information is more readily evident to the court, and to protect the innocent.
With respect to the issue of unauthorized practice of law, the SJC found that such conduct had occurred, but this alone did not constitute a consumer-protection violation or give the defendant-tenant an affirmative legal claim against the plaintiff (or the property owner or lessor). However, the SJC did find that the trial court, as part of its general superintendence over the practice of law, can – in egregious cases – sanction a plaintiff who brings a case without proper standing.
Sanctioning
Indeed, the Hatcher case was remanded to the Housing Court to determine whether the plaintiff should be sanctioned. For instance, a party who regularly prosecutes eviction cases, knowing he does not have standing to do so (and to “game the system”) may be a good candidate for sanctions. On the other hand, it might be appropriate for a sporadic and unknowing transgressor to be let off the hook.
In its decision, the SJC created a similar test for the slightly different cases in which summary process claims are properly brought in the name of an owner or lessor, but are prosecuted by non-lawyer managers or other agents. Here again, if the prosecuting individual is acting nefariously, then the case should be dismissed. If he has acted more innocently, then dismissal may not be appropriate, and the owner/lessor may be given more time to find a lawyer to prosecute the case (or decide to prosecute it himself, if he owns or leased the property in his own name).
Particularly in residential situations, eviction cases are often fought over small amounts of money (although recovering possession of property can be valuable in its own right). But in each case, unless the property owner/lessor is an individual, a lawyer must prosecute the case, which can lead to significant expense. These landlord-unfriendly considerations do not change the longstanding rule that only individuals can represent themselves in court, so the SJC’s decision in Hatcher is not surprising. In any event, absent an unlikely change to this rule, any non-lawyer (or property manager) who prosecutes a summary process action does so at his own (and the property owner/lessor’s) peril.
Michael T. Sullivan is a litigation partner in the Boston law firm of Conn Kavanaugh Rosenthal Peisch & Ford LLP who handles a variety of real estate and construction disputes. He can be reached at MSullivan@ConnKavanaugh.com. He prepared this article with the assistance of a summer associate, Isi T. Ehikhamhen, a student at Suffolk University Law School.
