Wednesday, September 21, 2011

Who's covered by summary process?

I complained in an earlier posting that there was little guidance about who counts as a landlord or tenant for the purpose of summary process jurisdiction.  This question came up in particular with a woman who had allowed a former owner of a property she purchased to stay on the property while seeking a new place to live.  There was no significant exchange of anything of value, which suggests that the economic relationships just are tangible enough to make this a landlord tenant situation.  Regardless of language some of the case law has used, the statute could be interpreted as not specifically requiring a monetary transaction to vet landlord/tenant status:

Section 1. If a forcible entry into land or tenements has been made, if a peaceable entry has been made and the possession is unlawfully held by force, if the lessee of land or tenements or a person holding under him holds possession without right after the determination of a lease by its own limitation or by notice to quit or otherwise, or if a mortgage of land has been foreclosed by a sale under a power therein contained or otherwise, or if a person has acquired title to land or tenements by purchase, and the seller or any person holding under him refuses to surrender possession thereof to the buyer, or if a tax title has been foreclosed by decree of the land court, or if a purchaser, under a written agreement to purchase, is in possession of land or tenements beyond the date of the agreement without taking title to said land as called for by said agreement, the person entitled to the land or tenements may recover possession thereof under this chapter. A person in whose favor the land court has entered a decree for confirmation and registration of his title to land may in like manner recover possession thereof, except where the person in possession or any person under whom he claims has erected buildings or improvements on the land, and the land has been actually held and possessed by him or those under whom he claims for six years next before the date of said decree or was held at the date of said decree under a title which he had reason to believe good. 

(M.G.L. ch. 239, s. 1.)  The language here, while permissive (i.e., "may"... ), covers a broad range of situations that don't necessarily involve any transaction that could pass for what might be called "rent".  So, for example, the first two cases cited would seem to cover pretty much any instance where a person was camped out on another's property claiming to be there lawfully.  The longer underlined bit applies specifically to the case I was worried about. 

The permissive nature of the statute is potentially interesting.  The litany of  cases seem to contemplate action by the person asserting rightful possession of the property, which leaves open the possibility that a landlord is not required to use summary process to remove a person on their property.  They could alternatively just seek a restraining order.  Also interesting is the apparent threshold requirement of a "decree for confirmation and registration of his title to land" by the land court.  If this were taken seriously, almost no case would be ripe for the housing court or summary process since few of the litigants ever come with an explicit judgment from the landcourt that they are actually entitled to possession. 

On the other hand, it seems that given the ability of litigants to invoke summary process even without having a land court decree, the courts must be interpreting the scope of summary process to apply to any litigant who could potentially turn out to be the rightful possessor.  This is problematic since even if the court gives litigants the benefit of the doubt about rightful possession of title, the statutory language limits summary process to only those who have such title.  As such, mere tenant (who, while they may have rightful possession, don't have rightful possession of title to land) does not appear to be within a class of people who may invoke summary process.  In other words, were a "landlord" to opt to not pursue the ouster of a "tenant" in housing court,  instead seeking a restraining order/injunction/etc., there would be no way for a tenant to force the case to be heard in housing court.  A judge faced with a motion for such an injunction outside of the housing court ought then to deny any motion from a defendant seeking to remove or transfer the case to the housing court!  This is not what usually happens, of course. 

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.  

Friday, August 19, 2011

08/19 AOD Report

There seemed to be far fewer volunteers today than in any of the previous weeks I'd gone for the Attorney of the Day during the summer.  A lot of this can be explained by law schools starting up again soon, which means summer assoc.s have gone home, as have many of the various interns who were regulars throughout the summer.  None of the regular attorneys I'm used to seeing showed up either, yet the check in line was as long as always and I weighed in on probably around 5-6 different matters.  2 of these that I got more involved in I'll record here. 

The first involved a female client who was living at a charitable boarding house, that was in court yesterday seeking to have her sign an agreement to address some alleged behavioural issues (the boarding house maintains what seemed to me strict and detailed guidelines for its residents, but there were allegations of verbally violent behaviour, etc.) and to recover some back rent.  The client was claiming the boarding house had a serious bed bug infestation.  ISD was called and confirmed the infestation, along with some other minor code violations.  According to the boarding house representative that was in court that day, they had been informed of the bed bug problem and hired an extermination service to determine how severe the problem was.  Well, the service brought in trained dogs to sniff for bed bugs and claimed that every unit in the house was infested.  The boarding house sought a second opinion from a different extermination firm that limited the findings of infestation to only several units and fumigated (or whatever they do) accordingly.  The clients unit was not one of those the second firm suspected of being infested and was not treated.  The client subsequently incurred costs trying to eliminate the problem on her own and therefore had decent grounds for claiming breach of warranty of habitability allowing her w/hold rent (which was in the form of some sort of Sec. 8 funding).

The initial plan here since the client had not filed an answer to was do the motion for late answer + answer with the bed bug defense.  The boarding house was represented (pro bono I take it) by a large local firm that had drafted a proposed agreement to be signed with the client upwards of 20 pages.  I had to convince the client at least 3 times NOT to just sign the agreement and instead go ahead with the litigation, which eventually she assented to. 

Apparently this woman had recently been assigned a case worker from a local housing assistance program who was on site and offered to cover half of the back rent alleged.  By the time I had a chance to talk to this guy, the parties were already waiting for mediation, so we began preliminary negotiations to try to get them to abate the back rent by half in exchange for the infusion from the housing assistance program.  There was some concern from the client about the reasonableness of some of the behavioral terms included in the proposed agreement, but the offer of half the back rent from a 3d party + the abatement of the other half by the house made her willing to agree.  After revising the lengthy proposed agreement, they signed, got the mediator's and judge's approval. 

There was some concern on my part that the client might not be able to abide by the behavioral terms, but since she had expressed an interested in looking for a new place (probably unrealistically), I assumed that at least the agreement would give her additional time to do that.   The down side was that if she breached the agreement, the boarding house would probably be able to evict her more easily and quickly.  Given the financial incentives for her though, it seemed that signing the agreement was more advisable than not.  If there are future problem they can be dealt with at that time I guess.  Anyway, this is the closest I've gotten to actually handling a mediation so far.

The second case worth noting came to me as I thought I was pretty much done for that session.  I was approached by a Black male, early-mid 20s with a severe stutter.  He explained he had been issued a 48 hour notice of eviction for the following day.  This followed an earlier court sanctioned agreement in which he had agreed to vacate the premises voluntarily by an date prior to when the execution had issued.  I don't think he was represented for the earlier agreement. 

The landlord was alleging he had stolen some property, which he explained were actually some janitorial supplies he had agreed with maintenance personnel to borrow.  There had been other outlandish allegation by the landlord previously as well (claiming he was carrying firearms on the premises that turned out to be a water pistol, etc.).  I thought some of recent claims might be retaliatory in nature.  This client was also working with some transitional assistance service to deal with notable mental health issues (anxiety, PTSD, int. al.).  He defaulted on the hearing to issue execution.  But given the health concerns is likely (based on the info I had) to get a few extra months while trying to locate new housing.

My first reaction (again, per above as it turned out, wrong) was to file a motion to stay execution, with longer term plans to have him get in touch with some legal services to work with him on possibly filing an appeal from the initial judgment/agreement.  I learned though that once the execution issues, the matter becomes a civil concern (not summary process anymore) and therefore requires a restraining order to prevent the constable from carrying the execution order.  (this confusion on my part seemed to be shared by some of the housing court clerks who entered into a lively little debate about the proper procedures in such cases).  Short story here: filed the restraining order + affidavit of indigency and last I heard the clerk was waiting to for a phone call to learn whether the TRO hearing would be that day or the following morning. 

Monday, August 15, 2011

December Globe Article on BHC

I just came across this Boston Globe article from December focusing on the ramifications of the foreclosure crisis from the perspective of BHC litigants.  The portrayal of the atmosphere is fairly accurate, though I'm not sure about the GBLS reference.  The few times I've been down there the volunteer attys have been limited to VLP and the Harvard Legal Aid Bureau, which specializes in foreclosure evictions.  In any event, I'm sure they're there on occasion too. 

Friday, August 12, 2011

B of A vs. K.C. Bailey

I posted a link to this article on my firm website (here), but am reposting here given the implications of the Bailey case for Housing Court practice.  The basic effect of the SJC decision is to give the Housing Court authority to review the substance of disputes over ownership in the case of a foreclosure sale.  Judge Muirhead had initially ruled that that court's jurisdiction was limited to defenses to the eviction proceeding only, which would not include questions of ownership, as was put at issue by Mr. Bailey.  Given the prevalence of lenders' use of the MERS (i.e. "robo-signing") service, this will allow the Housing Court to resolve questions of possession that might have otherwise had to go through Superior court.  No doubt part of the concern of the SJC had to do with the distribution of court resources during a economic recession.  The matter was reported by the Boston Globe here.  The slip opinion is available to anyone with access to a decent electronic legal database.  I found it using the Social Law Library's "FastCase" system.

Thursday, August 11, 2011

08/11/11 Thur. Landlord/Tenant session BHC

I went for my 4th or 5th Attorney of the Day this morning.  The  usual scene: a long line of tenants called for various kinds of hearings.  I got there pretty early this time around 8:45 and it took all of about 10 mins. for someone to come up with what turned out to be more or less standard case.  Client was a Black female in her early/mid 30s with a 12-13 y/o son.  She was relatively articulate, but seem to be very confused about the nature of summary process proceedings.  I had to explain relatively simple procedural steps to her multiple times ("yes, after you request mediation, come back here and....")

I was shown a summons and complaint for this client who had previously received Section 8 vouchers but, as it was later revealed, had tried to have her payments transferred to Minnesota, which she did, only to decide to move back to MA after about 3 weeks.  Her landlord had served her w/ a summons and complaint, which was her reason for being at the court this morning.  After returning, she took up residence in her old apartment, but because she had transferred her S. 8 payments/status to MN, she was being charged for the months rent following the time of transfer.  The client expressed a desire only to get more time in her current apt. in order to arrange for a new apartment.

The client claimed she had never received notice to quit.  More critically, as I learned after speaking w/ one of the more seasoned VLP staffers there today, it was likely the landlord had failed to serve the Housing Authority w/ a copy of the complaint as is required for summary process involving Sec. 8 housing.

After speaking with her in more detail about the circumstances leading up to the complaint, the conditions of the apartment and discussing it w/ some of the other AODs there, we advised her (de rigeur) to request mediation at the roll call.  I didn't have a chance to check w/ her whether her landlord and his attorney were present.  She didn't seem to look like she noticed anyone there. 

The client had not filed a timely answer (bye-bye discovery) so I sat with her prior to roll call and helped her fill out a Motion to File a Late Answer and went over the boilerplate VLP Answer w/ her also.  There seemed to be good defenses since she alleged the landlord had turned the heat off during the winter which led to her calling Inspection Services, who then issues the landlord a citation.  There were complaints also of rodent infestation, though the landlord apparently had multiple extermination companies out, but w/o any ultimate success.  These, together with the possible insufficient notice and likely service errors on the summons means she probably won't be getting evicted anytime soon.  This would have sufficient to buy her the 1-2 mos. she claimed she needed to arrange for a new place.

Short end of this story: client is directed to appropriate courtroom for roll call and disappears before I have chance to speak with her again.  I don't even know if she went in for that.  I did have to leave early for a drs. appt., but my suspicion is either landlord didn't show/defaulted or she got frustrated/felt overwhelmed with the process and took off.

The professional take away from this is what every decent lawyer knows: choose your clients carefully (maybe this even applies to legal services setting).  I noticed the attys who had been around longer, even the legal services ones, didn't jump at the first people to come to the table, but gravitated toward those that had more interesting or better evidenced cases, or looked more put together generally, not to mention those that have potential fee value (as one atty recently reported getting).  Obviously if everyone did this it would kind of defeat the purpose of having pro bono services in the first place, and on the other hand it probably makes sense that having more background they should get the more demanding cases, but it was a lesson nonetheless.

Wednesday, August 10, 2011

Abandoned Property

I recently addressed a question on the Mass. Law Forum site from a landlord who was asking what options were available to deal with property left behind by a former tenant.  At issue was a large trailer left behind.  It was unclear from the posting whether the tenant had been evicted or left voluntarily.  My analysis involved two parts, one focusing on the cost burdens associated with the unwanted property, the other with how best to legally dispose of it.  The full discussion (which is not substantially different from the below) can be found here.

It would make difference whether the tenant in such a case had been evicted as the result of summary process since in that case the constable charged with executing the eviction would have been authorized (and obligated) to arrange for the removal of all the tenants belongs as well. Unfortunately, even in this situation, it seems that MA law requires the LANDLORD to bear the expense of removing any stuff left behind in the event the tenant is unwilling or unable to pay, which is usually the case in an eviction. This appears to be intention of Mass. Gen. Laws, Ch. 239, s. 4(c):

"(c) The plaintiff [i.e. the landlord] in the summary process action shall pay the costs of removing the property to the place of storage. The plaintiff shall be entitled to reimbursement by the defendant for any costs and fees so advanced."

Given the landlord is responsible for removal and storage of tenant's belongings even during eviction, it would seem that in the absence of eviction, they would similarly be obligated to bear that expense. Of course, it is possible whether in the context of summary process or not to seek reimbursement from the (former) tenant in small claims or district court. But before one could seek reimbursement in the form of damages for removal/storage costs incurred, those damages have to be actual. In other words, a person would already have to lost money on the removal costs. If property is, for examples, still located w/ the landlord, they have not yet technically suffered any monetary damage and therefore don't have a cause of action to bring to small claims or other court.

There seem to be two other aspects to property a tenant leaves behind. It ought in theory to be possible to seek a temporary restraining order (TRO) requiring a former tenant to remove their property. Technically they would be involved in a trespassing of sorts. It's unclear how any law enforcement officials would enforce this TRO, however, since it would start to look a lot like the eviction proceedings described above.

More likely than that is that property left behind by a tenant who was not the subject of an eviction proceedings is simply considered "abandoned". Abandoned property becomes the legal property of the first person to find or lay claim to it by taking possession. Since the property is then legally the finders, they can sell or destroy that property as they see fit, to the extent the law allows. However, there are certain procedures that must be followed to establish that property is abandoned. They can be found at the state treasurer's website (not to be confused with the provisions for abandoned property in the course of a probate or estate, as contemplated by M.G.L. ch. 200A):

Really it seems the best advice here is also the most unuseful and preventative in nature: to make doubly sure any future tenants are as reliable and trustworthy as possible. That said, the fees for the TRO are not very prohibitive and it might be worth pursuing as a way to get some extra leverage w/ local law enforcement. The lengthier process of declaring the property abandoned in order to acquire rightful ownership to sell or destroy the property can be started commensurate to the TRO and serve as a "plan B" should, as seems likely, little or nothing come of the TRO. In county that has a special housing court division one could avail themselves of that to acquire the TRO, otherwise any district court can issue them.