Wednesday, September 7, 2011

09/01/11 Thur. Landlord/Tenant session BHC

I returned to the HC after a week off following the start of a contract assignment at a sizable firm in Boston.  I the morning working w/ one woman "landlord" who had taken on as a guest the former owner of a house she had purchased several months ago as part of a short sale.  Apparently the woman had asked to stay in the former property claiming her father had died in a foreign country, meaning she would need more time to move.  My initial reaction to the matter was that the thing shouldn't even be in HC since it sounded like there was no landlord tenant relationship.  Things were complicated by the client having already begun summary process on the advice of another attorney, though one it was explained to me who didn't regularly handle housing questions.  Some of the other volunteers thought that there might therefore be an estoppel problem to the denial of landlord status, but given provision for pleadings in the alternative, I didn't think this would be much of an issue.   If there's no landlord status then a TRO based on trespass allegations should have been sufficient.  I filled out the statement of facts after getting it from the clerk's office and took it back to them and they almost laughed at me: "if you wanna give us the $135 to file this motion, go ahead. we could use it!" 
As an aside here, I thought the landlord/tenant status was clarified in Boston Housing Auth. v. Hemingway, but that's on the assumption that the definition of "rent" there implies some kind of monetary exchange.  The other term that comes up is "for dwelling purpose" which could be construed more broadly.  There doesn't seem to be any clear guidance in any of the case law/Gen. Laws about who exactly is a landlord, under what conditions, etc.  This is the second case I've dealt w/ at the housing court in which the question of landlord or tenant status came into play so the vagueness about these basic terms is troublesome.  The question was further complicated here by a short initial period of a about 2 months during which the "tenant" was covering her share of utilities.  I wouldn't think this would ultimately be sufficient to convert the relationship to a landlord/tenant one, assuming it's not in the first place. 
Following the clerical humiliation, it was back to the drawing board, which in this case meant trying to work w/in the parameters of summary process.  The strategy on that account was - since the defendant was raising defenses to the eviction as if a tenant - to try to amend the complaint to seek back rent, something the client hadn't initially expressed any interest in.  Partly this was because of a misplaced concern about thinking that asking for rent would make denying landlord status implausible (similar to the estoppel concern).  I took the advice of one of the volunteers to seek back rent only for the several months that had elapsed following the service of the notice to quit, which was still a decent amount - ~$4500.  More importantly, this would ratchet up the stakes for the defendant trying to assert rights as a regular tenant: "ok, you wanna play like a tenant, you gotta pay like one".  [this is probably not the mentality that most would expect showing up for low income housing assistance.  I think alot of the attys see themselves as helping out disadvantages tenants and as basically tenants attys.  But in theory there's no distinction the attorney of the day description limiting it to only tenants.  And landlords showing up at the HC asking for free advice - that's usually given - is common enough].
There followed ore consultation with other volunteers, the result of which was a suggestion to apply for a preliminary injunction out of the superior court, which trumps the HC. As it turns out my initial reaction about the HC not having jurisdiction for lack of landlord/tenant status was shared by others (and others perhaps I managed to persuade to this view). 
The final outcome was a recommendation to split the baby and continue w/ the summary process, making a motion to amend the complaint for back rent (and to correct a clerical error about the sale being the result of foreclosure), on the assumption that liminal question of landlord status was resolved in the negative, otherwise moving to dismiss and then heading over to Sup. ct. There was some talk about seeking a declaratory judgment, but that just seemed unnecessarily complicated.  In any event, from the tenant's side strategy, success on the landlord status denial might be a mere Pyrrhic victory given the threat of interlocutory appeal if the plaintiff's main goal is to get the tenant out as soon as possible, interlocutory appeal adding yet a further layer to what could very well end up being the full blow summary process.
I'm also beginning to notice ome of the annoying things about serving as attorney of the day: (1) there's very little opportunity for follow up with the clients.  In this particular case the woman wanted me to meet w/ her again this week on the Thur. her trial was scheduled for.  B/c of the labor day weekend and the shortned week, I couldn't manage this w/ my regular work.  It gives one some appreciation for the unwillingness of judges to let attys get rid of their clients once representation is undertaken (LAR changes this  somewhat obviously, but the dissatisfaction I'm experiences w/ only limited interaction through AOD is just replicated there at a someone different level.)  Also, (2) so far I've been limited to helping to draft motions/fill out paper work and give advice.  There's hasn't even been the hint of opportunity to get some court time.  Maybe that's a good thing, but I was hoping to get some more experience on that front.  

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