SJC Rules: A property manager must use an attorney
SJC rules a property manager who filed an eviction on behalf of a landlord was practicing law without a license, and the eviction must be dismissed.
This important SJC decision offers important insight to help with your eviction case – Especially if you’re dealing with a property management service or a 3rd party aside from your landlord.
Note: This article does not constitute legal advice, ensure you speak with an attorney.If you need help defending yourself in an eviction, please get in touch.
RENTAL PROPERTY MANAGEMENT SERVICES & another vs. LORETTA HATCHER
In 2016, Fred Basile, a property manager, entered what is known as a “summary process action” (a complaint which says that the landlord seeks to recover possession of the premises as well as any monies owed) against the tenant, Loretta Hatcher.
What is significant in this case is that Basile was neither the owner nor the lessor of the property. He claimed that he was acting as the “agent” of the owner when he filed the complaint. Since he was not the owner/lessor of the property or an attorney – what he did represent the unauthorized practice of law. Because Basile was not the owner/lessor, the court was required to dismiss Basile’s complaint “with prejudice,” which means the ruling was permanent.
In January of 2016, Basile issued a “notice to quit” to Hatcher notifying her that she must leave her residence by March 31, 2016, or Basile would seek permission from the court to evict her. In this notice, Basile referred to himself as the property manager and “agent for Andrew Arvanitis,” the actual owner of the property. Ten days before the deadline, he filed a “summary process complaint” to evict Hatcher. Hatcher responded to the complaint by instigating various counterclaims.
In answering those, Basile admitted that he was not the property owner/lessor, nor was he an attorney.
He claimed that Arvanitis told him to serve Hatcher the notices. During questioning, he also admitted to initiating over ninety previous summary process cases in his name or the name of Rental Property Management Services.
Since Basile was not the owner/ lessor, the judge ruled that his claims against both tenants are subject to dismissal. Additionally, he ordered that any future attempts by Basile to initiate cases of a similar nature would be subject to immediate dismissal. However, the judge ruled in favor of Basile on the tenants’ counterclaims.
Key Takeaways from the Decision
As a tenant in Massachusetts facing eviction, there are some important things to take away from
- A person cannot initiate a summary process action for eviction of a tenant if they are not the owner or lessor of the property. If they represent the owner, they must be an attorney. The owner/lessor can initiate a summary process complaint without an attorney, in other words, you can represent yourself.
- If during a summary process action, the court becomes aware of the plaintiff not being the owner/lessor, it must dismiss the complaint “for lack of subject matter jurisdiction,” regardless of who raised the issue. These lack of subject matter dismissals are usually “without prejudice” (not-permanent). However, nothing bars the actual owner/lessor from filing a new complaint.
- According to 940 Code Mass. Regs. 3.17 (5) (b) (2014), owners are prohibited from beginning summary processes before the time period stated in the notice to quit has expired.
Had the plaintiff been the owner/lessor but the complaint was signed by another person who is not an attorney, the court could dismiss the case “without prejudice” (meaning non-permanent) due to unauthorized practice of law, or order that the complaint be dismissed on a designated date—unless the plaintiff retains an attorney and amends their complaint stating that.
- Only the judicial department determines who is qualified to practice law.
- If a plaintiff is not the owner/lessor and is not an attorney files a summary process complaint involving a tenant and this action is purposeful, the court has the authority to impose sanctions including attorney’s fees and other costs.
The court is aware that there are cases in which the unauthorized practice of law occurred inadvertently. An example of this would be a small landlord who was not familiar with all the rules involved in summary process procedures. The court would treat them differently than other landlords and property managers who intentionally “game the system.”
- The court is also aware of harms done to people who have to defend themselves against groundless claims. Examples of injuries would include emotional distress, the time and cost of defending a suit, and the damage to one’s reputation. A record of an eviction proceeding alone can hurt the tenant seeking future housing, regardless of how the case turns out.
- However, it is not the court’s responsibility to find out which plaintiffs are not the owner/lessor in cases where nobody is initiating any legal action. The court relies on the “adversary process” to raise and manage these issues.
- It’s required that there be written proof of the relationship between the landlord and the tenant.
- A corporation may only be represented in court by an attorney, except in small claims court.
- Non-attorneys may assist persons involved in legal actions without involving themselves directly in the unauthorized practice of law.
This article does not answer every issue involved in eviction matters in Massachusetts. However, the case described here does highlight certain protections you have in cases where the landlord does not have the legal standing to initiate a complaint. Being aware of these can put you in a better position.
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