RENTAL PROPERTY MANAGEMENT SERVICES & another vs. LORETTA HATCHER.
SJC-12373
Supreme Judicial Court of Massachusetts
May 15, 2018
Hаmpden. January 8, 2018. Present: Gants, C.J., Lowy, Budd, Cypher, & Kafker, JJ.
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Unauthorized Practice of Law. Summary Process. Practice, Civil, Summary process, Standing. Jurisdiction, Summary process, Housing Court. Housing Court, Jurisdiction. Consumer Protection Act, Unfair or deceptive act.
Summary process. Complaint filed in the Western Division of the Housing Court Department on March 24, 2016.
A motion for partial summary judgment was heаrd by Dina E. Fein, J., and entry of final judgment was ordered by her.
The Supreme Judicial Court granted an application for direct appellate review.
Joel Feldman for the defendant.
Patricia Whiting & Andrea Moon Park, for Harvard Legal Aid Bureau & another, amici curiae, submitted a brief.
Joshua M. Daniels & Richard M.W. Bauer, for National Consumer Law Center & another, amici curiae, submitted a brief.
GANTS, C.J. In 2016, Fred Basile, a property manager, brought a summary process action in the Housing Court in the name of his sole proprietorship, seeking to evict a tenant from a property for which he was neither the owner nor the lessor. Basile claimed that he was the manager for the property, and was acting as the agent of the owner when he filed the summary process complaint.
We hold that Basile had no standing to bring a summary process action in his name, where he was not the owner or lessor of the property. We also hold that, to the extent that he was aсting on behalf of the true owner of the property when he filed the complaint, his conduct constituted the unauthorized practice of law because he was not an attorney.
We further declare that, where the plaintiff in a summary process action is neither the owner nor the lessor of the property, the court must dismiss the complaint with prejudice for lack of subject matter jurisdiction, regardless of whether a motion to dismiss has been presented by the defendant. Where the plaintiff is the true owner or lessor, but the complaint has been signed and filed by another person who is not an attorney, the court may either immediately dismiss the complaint without prejudice based on the unauthorized practice of law, or order that the complaint shall be dismissed on a designated date unless the plaintiff before that date retains counsel or proceeds pro se, and amends the complaint accordingly.
Finally, we hold that such conduct is not enough, on its own, to constitute an unfair or deceptive practice in violation of
Background. In January, 2016, Basile issued a notice to quit to Loretta Hatcher, informing her that she must leave the premises she was renting in Springfield by March 31, 2016, “or we will go to court and seek permission to evict you.” In the notice to quit, Basile described himself as the “property manager” and “agent for Andrew Arvanitis,” an owner of the property.
On March 21, 2016, ten days before the deadline given in the notice to quit, Basile filed a summary process complaint in the Western Division of the Housing Court Department to evict Hatcher. The complaint was written on a form provided by the Housing Court. Where the form asked for the name of the “PLAINTIFF/LANDLORD/OWNER,” Basile wrote the name of his sole proprietorship: “Rental Property Management Services.” Where the complaint asked for the name and signature of the “Plaintiff or Attorney,” Basile printed and signed his own name. Arvanitis‘s name was not included anywhere in the complaint.
In her answer to Basile‘s complaint, Hatcher brought various affirmative defenses, including defenses asserting that Basile is not the owner or lessor of the property and therefore has no legal right to possession, and that Basile is engaged in the unauthorized practice of law by representing the property owner in this case. She also brought various counterclaims, including a counterclaim that Basile, by “portraying himself as having the legal authority to initiate and prosecute an eviction proceeding against [Hatcher],” engaged in unfair and deceptive practices in violation of
In answer to Hatcher‘s interrogatories and request for admissions, Basile admitted that he is neither the owner nor the lessor of the property, and is not an attorney. He stated that he was orally directed by the owner to serve the tenant with the notice to quit and the summary process summons and complaint. He identified the owners of the property as Andrew Arvanitis and “Kathleen Stevens-Arvanitis, as trustee.” In a separate summary process action Basile brought against another tenant, Shavonna Williams, Basile admitted in answer to a request for admissiоns that, since 2007, he has initiated over ninety summary process cases in his own name or in the name of Rental Property Management Services, in each case seeking to evict tenants from properties that he
Hatcher moved for partial summary judgment on her
The judge found that it was undisputed that Basile was not the owner or lessor of the properties at issue, and therefore both cases were subject to dismissal. The judge enjoined Basile from “initiating summary process cases in his own name or the name of his company . . . with respect to tenancies in which he neither owns the rental property in question nor is identified as the ‘landlord’ or ‘lessor’ in the applicable rental agreement.” The judge ordered that аny future cases Basile brought in violation of that order would be “subject to immediate dismissal.”
However, the judge denied the tenants’ motions for partial summary judgment and entered judgment in favor of Basile on the tenants’
Hatcher subsequently stipulated to the dismissal of all her counterclaims other than that part of her
appeals from the denial of her motion for partial summary judgment and the entry of partial summary judgment in favor of Basile.4 We granted her application for direct appellate review.
Discussion. 1. Standing to bring summary process action. A plaintiff may bring a summary process action to evict a tenant and recover possession of his or her property only if the plaintiff is the owner or lessor of the property. See
Where, as here, the plaintiff is neither the owner nor the lessor of the property, the plaintiff has no standing to bring a summary process action. See Ratner v. Hogan, 251 Mass. 163, 165 (1925) (“To recovеr . . . possession [through summary process], it is essential that there should be proof of the relation of lessor and lessee, or of landlord and tenant, between the plaintiff and defendant . . .“). See also Cummings v. Wajda, 325 Mass. 242, 243 (1950) (“Summary process is a purely statutory procedure and can be maintained only in the instances specifically provided for in the statute“). And where the plaintiff lacks standing to bring an action, the court lacks jurisdiction of the subject matter and must
In addition, whenever a problem of subject matter jurisdiction becomes apparent to a court, the court has “both the power and the obligation” to resolve it, “regardless [of] whether the issue is raised by the parties.” Id., quoting Nature Church v. Assessors of Belchertown, 384 Mass. 811, 812 (1981). See
We therefore hold that, whenever it becomes apparent to a court in a summary process action that a plaintiff may not be the owner or lessor of the property at issue, the court is obligated to inquire into the plaintiff‘s standing and, if it determines that the plaintiff lacks standing, it must dismiss the action for lack of subject matter jurisdiction, regardless of whether any party raises an issue of standing. See HSBC, 464 Mass. at 199-200;
2. Unauthorized practice of law. Where the named plaintiff is neither the owner nor the lessor of the property, it is legally irrelevant whether the plaintiff is the agent or attorney of the owner or lessor, or whether the plaintiff has obtained the express approval of the owner or lessor to bring the action in the plaintiff‘s name. Only a person entitled to the property as owner or lessor may bring an action to recover possession of that property. See
This was the situation presented in LAS Collection Mgt. v. Pagan, 447 Mass. 847 (2006) (LAS). In that case, a property management agent, LAS Collection Management (LAS), filed a complaint in the Housing Court on behalf of the property owner, High Rock Group, seeking injunctive relief against the defendant tenant. Id. at 847. The plaintiff was identified in the complaint as “High Rock Group c/o LAS Collection [Management],” and the complaint was signed by the owner of LAS, who added the word “agent” to her signature. Id. at 848. The agent was not an attorney. Id. The defendant filed an answer that included counterclaims for the unauthorized practice of law and violation of
By ruling that the motion to dismiss should have been allowed, we essentially concluded that the property agent engaged in the unauthorized practice of law by signing and filing the complaint as an agent of the property owner.6 Consequently, even if Basile had identified the true owner of the property in the summary process complaint, his act of signing the complaint as the “Plaintiff or Attorney” and then filing the complaint would have been sufficient to warrant dismissal based оn the unauthorized practice of law.
To be clear, nothing precludes an individual who is the owner or lessor of the property from signing and filing a summary process complaint himself or herself, regardless of whether he or she is an attorney. See
permitted to manage, prosecute or defend their own actions, suits, and proceedings, . . . and this does not constitute the practice of law“).7,8 But where an individual plaintiff asks
another to sign and file his or her complaint, the person
Where a summary process complaint is signed and filed by an individual who is neither the plaintiff nor the attorney, the complaint is subject to dismissal, not for lack of subject matter jurisdiction, but because the filing of such a complaint is the unauthorized practice of law, and dismissal may be the sanction necessary to fulfil our constitutional obligation to regulate the practice of law. See Opinion of the Justices, 289 Mass. at 612 (“It is inherent in the judicial department of government under the Constitution to control the practice of the law . . .“). “Permission to practise law is within the exclusive cognizance of the judicial department.” Id. at 613.
It is our responsibility both to determine what constitutes the practice of law and to determine the qualifications of those authorized to practice law. Id. at 612. See Lowell Bar Ass‘n v. Loeb, 315 Mass. 176, 180 (1943). “The purpose in limiting the practice of law to authorized members of the bar is . . . to protect the public welfare.” Real Estate Bar Ass‘n, 459 Mass. at 517; Matter of the Shoe Mfrs. Protective Ass‘n, 295 Mass. 369, 372 (1936). And we can protect the public only if we can effectively prevent the unauthorized practice of law.
Thus, where a court learns that a person is engaged in the unauthorized practice of law, the court is obligated to take corrective action, regardless of whether the adverse party requests such action. A court has no discretion to tolerate the unauthorized practice of law, and may not allow a person to engage in the unauthorized practice оf law simply because the adverse party does not object. A judge does have the discretion, however, to determine the appropriate remedy. Specifically, where a summary process complaint has been signed and filed by a person who is not an attorney, such as a property agent, the judge may order immediate dismissal of the complaint, or order that the complaint be dismissed on a designated date unless the plaintiff before that date retains counsel or proceeds pro se, and amends the complaint accordingly. Compare LAS, 447 Mass. at 851 (ordering dismissal of complaint where property agent signed complaint by property owner), with Varney Enters., Inc. v. WMF, Inc., 402 Mass. 79, 82-83 (1988) (where corporation emрloyee engaged in unauthorized practice of law by representing corporation in court, case remanded with instruction that default judgment against corporation be vacated if, within thirty days, attorney should appear and file answer on corporation‘s behalf). Any such dismissal would be without prejudice; the owner or lessor may file a new summary process complaint if the defect warranting dismissal is corrected.
In exercising this discretion, the judge should consider whether the unauthorized practice of law occurred by inadvertence or by design. We recognize that some small landlords may be unfamiliar with summary process procedures and may inadvertently cause a property agent to engagе in the unauthorized practice of law because neither the landlord nor the agent knows any better. We also recognize that other landlords and property agents do know better, but may seek to “game the system,” as was alleged but unproven here, by having an agent sign the summary process complaint and prosecute the action in the hope that the unauthorized practice of law will not be detected or that, even if it is, the
3.
A complainant bringing a claim under
unfair or deceptive dealings in the context of litigation.” Id. аt 457. Here, the only alleged unfair or deceptive conduct was Basile‘s act of signing and filing the summary process complaint when he lacked standing and was not authorized to practice law. Although Basile has admitted in a separate case that he has filed numerous summary
In the context of summary process, we decline to interpret
conduct may be the basis for a
of law, which, as we earlier noted, can arise in some cases from a landlord‘s mere inexperience with eviction cases rather than bad faith. We also note that the Attorney General‘s regulations interpreting
We do not agree, however, that it would be “unfair to sanction Basile for doing that which the court -- albeit passively -- and the adversary process permitted him to do in
some, if not all, cases.” The fact that the court did not earlier put a stop to Basile‘s conduct, perhaps in the mistaken belief that the court could not or should not act sua sponte in the absence of a motion to dismiss, does not mean that it should continue to go unsanctioned. As the judge recognized by enjoining the conduct, filing summary process complaints in a property manager‘s own name or in the name of his or her business seriously undermines the fairness of summary process and therefore threatens the administration of justice, especially where the vast majority of tenants in these cases are
Where the named plaintiff in a summary process action is not the true landlord, a self-represented tenant with viable defenses or counterclaims based on the landlord‘s misconduct or the poor condition of the premises will be unable to assert them against the plaintiff -- who is, of course, not the landlord -- without impleading the true landlord. In effect, such conduct confers an unfair advantage on landlords, shielding them from tenants’ potential defenses and counterclaims even where, for
example, the landlord has provided inadequate heat or allowed the premises to fall into uninhabitable disrepair.
Moreover, even where the tenant recognizes that the plaintiff is not the true landlord and successfully moves to dismiss the summary process action, the tenant suffers a distinct and identifiable harm by having to come to court to defend against a complaint that must be dismissed. Regardless of the underlying merits of the eviction, a summary process complaint brought by a plaintiff without standing is a groundless claim, and we have long recognized the harms often associated with having to defend against groundlеss claims, including the time and expense of defending a suit, emotional distress, and harm to reputation. See Millennium Equity Holdings, LLC v. Mahlowitz, 456 Mass. 627, 645 (2010) (abuse of process); Malone v. Belcher, 216 Mass. 209, 212 (1913) (malicious prosecution). Such harms can be especially serious where the unjustified litigation is a summary process action, where the consequences of an adverse judgment -- eviction and the loss of one‘s home -- are especially distressing, and where the mere record of an eviction proceeding can serve as a long-term barrier to a tenant when he or she seeks future housing, regardless of the legal outcome. See Desmond & Bell, Housing, Poverty, and the Law, 11 Ann. Rev. L. & Soc. Sci. 15, 19 (2015)
(even dismissed eviction actions can result in rejection of housing applications by landlords).
And in cases where the person who signs and files the summary proсess complaint is not an attorney, all parties are at risk of harm stemming from that unauthorized practice of law. As earlier
Mass. R. Prof. C. 4.3, as appearing in 471 Mass. 1442 (2015). In contrast, a property manager engaged in the unauthorized practice of law is not governed by the ethical rules of professional conduct, and may not be sanctioned by the Board of Bar Overseers for their violation. See Mass. R. Prof. C. 8.4 & comment, as appearing in 471 Mass. 1483 (2015); Mass. R. Prof. C. 8.5, as appearing in 454 Mass. 1301 (2009).
The prohibition against the unauthorized practice of law also protects landlords who allow property managers to represent them in summary process actions. See Lowell Bar Ass‘n, 315 Mass. at 180 (purpose of prohibition is to “protect[] . . . the public from being advised and represented in legal matters by incompetent and unreliable persons“). This case well illustrates the danger. If Basile were an attorney, he would have been expected to know that a landlord cannot file a summary process complaint before the deadline stated in the notice to quit, see Rule 2(b) of the Uniform Summary Process Rules, and that it is an unfair and deceptive practice under the Attorney General‘s regulations to do so. See
Precisely bеcause Basile is not an attorney, the sanctions that are typically available for frivolous claims are not available here. Such sanctions can be imposed only on parties who are represented by attorneys or on attorneys themselves.
See
That does not mean, however, that a judge is powerless to sanction conduct like that committed by Basile. Even where sanctions are not authorized by any statute or court rule, and even where no court order or rule of procedure has been violated, a judge may exercise the court‘s inherent power to impose sanctions for misconduct where the misconduct threatens the fair administration of justice and where the sanction is necessary to preserve the judge‘s authority to administer justice. See Wong v. Luu, 472 Mass. 208, 209 (2015). See also Commonwealth v. Matranga, 455 Mass. 45, 49 (2009) (courts retain inherent authority to impose sanctions where necessary “to secure the full and effective administration of justice“); New England Novelty Co. v. Sandberg, 315 Mass. 739, 746 (1944) (“Every court of superior jurisdiction has the inherent power . . . to punish those who obstruct or degrade the administration of justice“). [A] court should exercise restraint and discretion both in determining
whether the rule of necessity permits the imposition of sanctions under a court‘s inherent powers and, where it does, in determining whether to impose a sanction in a particular case and the severity of the sanction.” Wong, 472 Mass. at 218. See Sommer v. Maharaj, 451 Mass. 615, 621 (2008), quoting Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (inherent power of court to impose sanctions must “be exercised with restraint and discretion“).
Where a plaintiff seeks to evict a tenant without the standing to do so, or where a person who is not authorized to practice law signs and files a summary process complaint -- and where that conduct is not inadvertent but by design, or part of a pattern or practice -- we hold that a court has the inherent authority, in the exercise of its sound discretion, to impose appropriate sanctions, including attorney‘s fees and other costs, in order to ensure the fair administration of justice in summary process actions, and to deter such conduct in the future.
Conclusion. The order denying Hatcher‘s motion for partial summary judgment and entering judgment in favor of Basile is affirmed. The case is remanded to the Housing Court judge to
So ordered.
Notes
Moreover, the Massachusetts Trial Court, like the trial courts in some other States, provides walk-in court service centers at certain large court houses where nonattorneys “help people navigate the court system” by assisting with forms, providing information about court procedures, and answering questions about how the court works. See Massachusetts Trial Court, Learn About Court Service Centers, https://www.mass.gov/service-details/learn-about-court-service-centers [https://perma.cc/5X4Q-QCHK]. See also Colorado Judicial Branch, Self-Help, https://www.courts.state.co.us/Courts/District/Custom.cfm?District_ID=14&Page_ID=471 [https://perma.cc/DC9G-2D53] (“Self-Represented Litigant Coordinators” assist self-represented litigants, educating them about law and procedures and helping with forms and paperwork); New York State Unified Court System, Court Navigator Program, https://www.nycourts.gov/courts/nyc/housing/rap.shtml [https://perma.cc/2YLU-6XJP] (nonattorney “Court Navigators” assist self-represented litigants in landlord-tenant and consumer debt cases, helping with forms and paperwork and explaining what to expect in cоurt).