On May 15, 2018, the Massachusetts Supreme Court issued a ruling requiring summary process actions to be commenced only in the name of the “owner or lessor” of the property. While previous cases were permitted to be commenced in the name of the managing agent, who had authority to commence actions on behalf of the owner, the Supreme Court has now made clear that only the “owner or lessor” may be named as the Plaintiff in the action. The Court further ruled that the failure to comply with this ruling would not only result in the mandatory dismissal of the action but could also result in potential liability for property managers who continue to bring actions in their own names and without the assistance of an attorney.
This decision once again reinforces the pitfalls that can arise in eviction actions. In order to ensure that we avoid such issues, we will continue to ask clients to send over the front page of the lease with their eviction cases so we can be sure we are naming the “owner” or “lessor named in the lease”. While the owner must be the person/entity named on the deed, the “lessor” can be any legal entity which is listed as the “lessor” on the lease and has some interest in the property (i.e. is the owner, managing agent, etc.). It is also very important to make sure that you are naming a legal entity, and not a trade name, as the lessor in your lease. Trade names, such as “Sunrise Estates” or “The Homes”, are not legal entities recognized by the state and therefore have no legal standing. Legal entities, on the other hand, have legal existence (remember Mitt Romney’s famous statement that “corporations are people too?”) and therefore can file suits the same as a natural person. Legal entities are always designated with Inc., LP, LLC, Ltd., or some other initials at the end of the name that confirm they are a corporation, partnership, LLC, or Trust. Again, by providing us with a copy of your lease at the commencement of the case, we will be able to ensure that the right Plaintiff is named and avoid any unnecessary delays.
While we are discussing pitfalls, here are a few other issues with notices to quit and summary process complaints which we would like to make sure clients avoid:
1. Make sure you name ALL adult legal occupants of the apartment. Even if the person is only listed as an “occupant”, it is always better to name them on the Notice to Quit to avoid them later claiming that they maintained a tenancy. Make sure you list the address and spell all names precisely since any defect in the notice to quit requires the court to dismiss the case.
2. If you are serving the notice yourself, make sure you either hand it to the tenant (i.e. in-hand service) or leave a copy under the door and mail a copy the same day. A recent case confirmed that “mailing” means the placing the envelope in a US postal service box and not in the manager’s home mailbox. Also, remember the issue is not whether the notice was sent to the tenant but rather whether the tenant actually “received” it. As such, never send a notice to quit by certified mail (when they refuse it you actually have evidence they did not get it!) and be sure to serve the tenant where they are actually residing if they are not living in the apartment (e.g. they are in a nursing home or jail).
3. DO NOT send successive notices. The second notice to quit waives the first notice to quit. Only send second notices if the tenant has cured the first notice.
4. If the tenant has a mobile voucher or the apartment maintains a subsidy, be sure to mail a copy of the notice to quit to the housing authority. This is required by the HAP contract and most regulatory agreements.
5. Finally, DON’T WAIT! Once a notice expires, get the tenant to court. Managers often feel it is more compassionate to wait until the tenant is a few months behind or try to do an informal agreement. However, when we then get to court with the tenant, they are so far behind they can never catch up. Getting them into court early allows us to work out payment plans before the tenant is in position where their only option is to vacate.
Finally, when in doubt…ask. As I have often said, while the attorneys in our firm are amazing lawyers, none of us are able (so far) to be able to change the space-time continuum. Maybe someday we will have a time machine, but until then its always better to call and ask us for advice rather than get trapped in one of these pitfalls!