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. 

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.