Standing in the Wake of Rental Property Management Services v. Hatcher: Only the Owner or Lessor May Use Summary Process to Evict Tenants and Property Agents that File Such Actions Are Engaging in the Unauthorized Practice of LawPosted: November 6, 2018
by Lauren D. Song
On May 15, 2018, the Supreme Judicial Court articulated a bright line rule strictly construing the summary process statute, G.L. c. 239, § 1 (“Statute”), to hold that “[o]nly a person entitled to the property as owner or lessor may bring an action to recover possession” against a tenant, and non-attorney property agents who sign and file summary process complaints on behalf of owners are “engag[ing] in the unauthorized practice of law.” Rental Property Management Services v. Hatcher, 479 Mass. 542, 547 (2018) (“Hatcher”). In rejecting the application of agency principles that would enlarge standing in summary process to property agents, the Court also admonished that the unauthorized practice of law by such agents “seriously undermines the fairness of summary process…, especially where the vast majority of tenants in such cases are self-represented.” Id. at 553-554, n. 11. This article discusses procedural considerations in determining summary process standing in the wake of Hatcher.
Determining Whether Standing Exists In Fact
Hatcher comes at a time when the majority of the nation’s 47.5 million residential rental units is no longer owned by “mom-and-pop” landlords personally known to the tenants but by institutional and corporate owners that often remain undisclosed to tenants. Such owners typically operate through property agents so tenants may not know that the party to whom they tender rent is not the owner of the property. Tenants also often are not privy to changes in the ownership interests—e.g., through foreclosures, dissolutions, mergers, acquisitions, bankruptcies, and even assignment of leases–that may affect who has standing to bring and maintain an eviction action against them. See Billings v. GTFM, LLC, 449 Mass. 281, 289-96 (2007) (standing must exist as of the commencement of the action and continue throughout the litigation). And as the Court highlighted in Hatcher, a “plaintiff’s lack of standing will not be apparent on the face of the [summary process] complaint,” because the form complaint promulgated under the Uniform Summary Process Rules (“USPR”) which govern summary process proceedings identifies all pleaders categorically as “PLAINTIFF/LANDLORD/OWNER.” 479 Mass. at 548. Notwithstanding challenges to determining whether plaintiff-standing exists in fact,” in fiscal year 2017 alone, 40,503 summary process cases were filed throughout Massachusetts in which over 90% of the tenants were self-represented.
Summary Process Standing Cannot Be Delegated to Agents
Hatcher rejects agent standing in summary process based on the well-established principle that “[s]ummary process is a purely statutory procedure and can be maintained only in the instances specifically provided for in the statute.” Id. at 546, quoting Cummings v. Wajda, 325 Mass. 242, 243 (1950); see also Buron v. Brown, 336 Mass. 734, 736 (1958) (“The purpose of [the Statute] is to give possession to those whose possession has been invaded or who have a right to possession and are within a category defined therein.”). In actions against tenants, therefore, “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.” Id., quoting Ratner v. Hogan, 251 Mass. 163, 165 (1925).
Hatcher also squarely holds that the standing requirements in summary process are jurisdictional: “where the plaintiff lacks standing to bring an action, the court lacks jurisdiction of the subject matter and must therefore dismiss the action.” Id. And since “[s]ubject matter jurisdiction cannot be conferred by consent, conduct or waiver,” id., quoting Litton Business Sys., Inc. v. Commissioner of Revenue, 383 Mass. 619, 622 (1981), it is legally ineffective for owners or lessors to purport to authorize their agents to bring summary process actions to evict their tenants:
“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 G.L. c. 239, § 1.”
Id. at 547-548 (emphasis added).
Who Bears the Burden of Proof on Plaintiff’s Standing?
In most civil actions, jurisdictional standing is a threshold issue typically resolved early by a motion to dismiss for lack of subject matter jurisdiction under Mass. R. Civ. P. (“Rule”) 12(b)(1), and/or for failure to state a claim upon which relief can be granted under Rule 12(b)(6). In the fast pace of summary process, however, standing is seldom challenged and if at all, usually raised in the context of a Rule 56 motion for summary judgment, as in Hatcher. How jurisdictional facts become controverted is important on who bears the burden of proof. Williams v. Episcopal Diocese of Mass., 436 Mass. 574, 577 n.2 (2002).
- Under Rule 12(b)(1), the burden remains with the plaintiff as the party invoking standing to prove its jurisdictional facts by a preponderance of the evidence, and the court does not assume the plaintiff’s factual allegations in the complaint to be true. Caffyn v. Caffyn, 441 Mass. 487 (2004).
- Under Rule 56, the burden shifts to the tenant as the moving party to establish that the plaintiff has no reasonable expectation of proving it is a “person entitled to the land or tenements” under the Statute, and the record would be viewed in the light most favorable to the plaintiff as the non-moving party. SeeKourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).
It bears caution that consideration of matters outside the pleadings will convert a Rule 12(b)(6) motion to a motion for summary judgment, with the corresponding burden shifting to the tenant as the moving party, but “[s]uch is not the case when deciding a motion to dismiss under [R]ule 12(b)(1)” where the conversion to Rule 56 principle does not apply. Watros v. Greater Lynn Mental Health & Retardation Ass’n, Inc., 421 Mass. 106, 109 (1995). When motions to dismiss are filed under both Rule 12(b)(1) and Rule 12(b)(6), courts ordinarily decide the Rule 12(b)(1) motion first. See Northeast Erectors Ass’n of BTEA v. Secretary of Labor, Occupational Safety & Health Admin., 62 F.3d 37, 39 (1st Cir. 1995).
- Under Rule 12(h)(3), “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, 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 [with prejudice] for lack of subject matter jurisdiction, regardless of whether any party raises an issue of standing.” Hatcher, 479 Mass. at 547.
It also bears reminder that in discharging this independent obligation, judges have broad discretion to make findings outside the four corners of the pleadings and to use any method of obtaining evidence, including ordering discovery, affidavits or other documentary evidence and taking depositions and oral testimony. Ginter v. Commissioner of Ins., 427 Mass. 319 (1998).
Dismissal with Prejudice Is Compulsory If the Plaintiff Lacks Standing
Hatcher also mandates 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” because the “lack of standing is also fatal to the merits of the plaintiff’s claim” for possession. Id. at 547 (italics added). This bright line rule reflects that under USPR 2, summary process actions are deemed commenced only upon service on the defendant of “a properly completed” complaint (after which the original complaint is filed in court), and a complaint that fails to name a plaintiff with a statutory entitlement to recovery of possession is not only incompetent to commence a justiciable action but also determinative that the plaintiff’s claim for possession is without legal merit. And while such dismissal with prejudice “would not bar the true owner or lessor of the property from filing a new complaint,” where the complaint fails to name the true owner or lessor of the property as the plaintiff in the first instance, the court is without discretion to permit any amendment, substitution or other corrective remedy but must dismiss the complaint with prejudice.
In contrast, if the complaint names a proper plaintiff but is improperly signed, filed and/or prosecuted by a non-attorney agent, a valid summary process action has commenced, and although the court must address the unauthorized practice of law by the agent, the judge has the discretion either to order the immediate dismissal of the action, or allow a conditional dismissal “on a designated date unless the plaintiff before that date retains counsel or proceeds pro se, and amends the complaint accordingly.” Id. at 551.
It bears reminder that any judgment issued without valid subject matter jurisdiction is void. Harris v. Sannella, 400 Mass. 392 (1987). And the defense of lack of subject matter jurisdiction cannot be waived for any reason and may be raised at any time, even after final judgment is entered and for the first time on appeal sua sponte by the appellate court. Id. at 54, n. 5, citing ROPT Ltd. Partnership v. Katin, 431 Mass. 601, 607 (2000); see also Prudential-Bache Securities, Inc. v. Commissioner of Revenue, 412 Mass. 243 (1992); Talmo v. Zoning Board of Appeals, 93 Mass. App. Ct. 926 (2018). While the dismissal for lack of subject matter jurisdiction is ordinarily considered a “final order” subject to immediate appellate review de novo, the denial of a motion to dismiss for lack of subject matter jurisdiction is an interlocutory order.
In the wake of Hatcher, parties now have clear guidelines and strong incentives to resolve promptly any questions that may impact the plaintiff’s standing. By reviewing early and updating regularly information relevant to the parties’ status with respect to the property at issue, parties can avoid considerable expense, trouble, and delay in the just, speedy, and inexpensive determination of their rights and obligations under the Statute.
Lauren D. Song is a senior attorney with Greater Boston Legal Services. Her practice focuses on affordable housing preservation and development through public-private partnerships and residential landlord-tenant law. She is a current member of the Boston Bar Journal.