MY COMMENT: Nothing really new here – if you are not the actual owner, you need to hire a lawyer in order to evict someone and even if you are the owner but you have some sort of corporation, LLC, etc you still must hire a lawyer.
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SJC-12373
RENTAL PROPERTY MANAGEMENT SERVICES & another1 vs.
LORETTA HATCHER.
Hampden. January 8, 2018. – May 15, 2018.
Present: Gants, C.J., Lowy, Budd, Cypher, & Kafker, JJ.
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 heard 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.
Stanley D. Komack (John B. Stewart & Jason R. Ferenc also
present) for the plaintiffs.
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.
1 Fred Basile.
2
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
acting 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
3
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 G. L. c. 93A. However, 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 and to deter such conduct in the
future.2
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.
2 We acknowledge the amicus briefs submitted by the National
Consumer Law Center and the Volunteer Lawyers Project, and by
the Harvard Legal Aid Bureau and the Massachusetts Law Reform
Institute.
4
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 G. L. c. 93A.
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
5
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 admissions
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 does not own. He also admitted that he was
aware that a property agent who is not an attorney may not
represent a property owner in a lawsuit in the Housing Court,
but stated that he and others had been allowed to do so “by the
Western Division [of the] Housing Court, [m]ediators,
[a]ssistant [c]lerks and also [l]egal [a]id.”
Hatcher moved for partial summary judgment on her c. 93A
counterclaims, arguing that by commencing a summary process
action against her when he was neither the owner nor the lessor
of the property, and was not an attorney, he had committed an
unfair and deceptive practice in violation of c. 93A. Williams
brought a similar motion, based on the same conduct by Basile,
and both motions were argued in the same hearing. Although the
cases were not consolidated, the judge ruled on both motions in
a single order.
6
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 any 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’ c. 93A counterclaims. The judge noted that a property
manager may initiate and prosecute a case in his or her own name
if he or she is the owner or lessor of the property, and that a
substantial percentage of landlords in the Housing Court are
self-represented. The judge found that “it is not the ‘policy’
of this court” to permit property managers to act as plaintiffs
where they are neither the owners nor the lessors of the
property, but “[a]s a practical matter, . . . it is beyond the
capacity of the court to ferret out” such violations “in cases
where no one is raising them, even were it an appropriate role
for the court to do so.” The judge added that it was not
appropriate for the court to assume that those defendants who
7
could claim such a violation “would necessarily and invariably
choose to make” such a claim. Instead, the court “relies on the
adversary process to manage [these] issues, responding when they
are affirmatively raised for determination, typically by
requiring counsel to appear for the property manager.” The
judge found that there was nothing in the record to support the
tenant’s allegation that Basile was “‘gaming’ the system,” that
is, “initiating and prosecuting summary process cases unless he
gets ‘caught,’ in which case he redresses his own unlawful
behavior by obtaining representation.” “It is simply unfair,”
the judge concluded, “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.”
Hatcher subsequently stipulated to the dismissal of all her
counterclaims other than that part of her c. 93A counterclaim
that alleged that Basile portrayed himself as having the legal
authority to initiate and prosecute the eviction action.3 As to
that part of her counterclaim, she stipulated to the entry of
judgment so that she could “more expeditiously” appeal from the
judge’s ruling on that counterclaim. The judge entered final
judgment in accordance with the stipulation. Hatcher now
3 Loretta Hatcher had earlier entered into an agreement with
Andrew Arvanitis and Kathleen Stevens-Arvanitis that allowed her
to retain possession of her apartment, and provided for
reasonable attorney’s fees to be paid to her attorney.
8
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 G. L.
c. 239, § 1 (“the person entitled to the land or tenements may
recover possession” through summary process action).
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 recover . . . 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
4 Basile argues that, by stipulating to the entry of
judgment, Hatcher has waived her right to appeal from the
judge’s entry of partial summary judgment on the G. L. c. 93A
counterclaim. Where the stipulation expressly declares that it
was entered into to permit Hatcher “more expeditiously” to
appeal from the judge’s ruling, we decline to find such a
waiver.
9
plaintiff lacks standing to bring an action, the court lacks
jurisdiction of the subject matter and must therefore dismiss
the action. HSBC Bank USA, N.A. v. Matt, 464 Mass. 193, 199
(2013) (HSBC).
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 Mass. R. Civ. P. 12 (h) (3), 365 Mass. 754 (1974)
(“Whenever it appears by suggestion of a party or otherwise that
the court lacks jurisdiction of the subject matter, the court
shall dismiss the action” [emphasis added]). “Subject matter
jurisdiction cannot be conferred by consent, conduct or waiver.”
Litton Business Sys., Inc. v. Commissioner of Revenue, 383 Mass.
619, 622 (1981).5
5 The obligation to dismiss for lack of subject matter
jurisdiction established in Mass. R. Civ. P. 12 (h) (3) is not
inconsistent with the Uniform Summary Process Rules and
therefore applies to summary process actions. See Rule 1 of the
Uniform Summary Process Rules (1980) (summary process actions
governed by Massachusetts Rules of Civil Procedure to extent
they are “not inconsistent” with Uniform Summary Process Rules).
Cf. ROPT Ltd. Partnership v. Katin, 431 Mass. 601, 607 (2000)
(under Mass. R. Civ. P. 12 [b] [1], 365 Mass. 754 [1974], party
to summary process action “has the right to raise subject matter
jurisdiction at any time”).
10
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; Mass. R. Civ. P. 12 (h) (3). Although
dismissals for lack of subject matter jurisdiction are
ordinarily without prejudice because they typically do not
involve an adjudication on the merits, in cases where a lack of
standing is also fatal to the merits of the plaintiff’s claim,
as here, dismissal must be with prejudice. See Abate v. Fremont
Inv. & Loan, 470 Mass. 821, 828, 836 (2015) (dismissal with
prejudice appropriate in try title action where determination of
standing “effectively negate[d] the merits of [plaintiff’s]
claim”). Where the complaint is dismissed with prejudice for
lack of subject matter jurisdiction, the plaintiff cannot file a
new summary process complaint against the tenant unless he or
she subsequently becomes the owner or lessor of the property.
However, nothing would bar the true owner or lessor of the
property from filing a new complaint.
We recognize, as the judge did, that a plaintiff’s lack of
standing will not be apparent on the face of the complaint
11
where, as here, a property manager is identified as the
“PLAINTIFF/LANDLORD/OWNER.” Unless it becomes apparent that a
plaintiff may not be the owner or lessor of the property, we do
not mandate that a judge or court staff take affirmative steps
to “ferret out” whether the named plaintiff has standing to
bring the summary process action. However, we note that
revisions to the summary process complaint form could be made
that would help to prevent standing issues. For example, the
form could in some fashion require the person signing the
complaint to certify that the plaintiff is the owner or lessor
of the property and that the signatory is either the individual
owner or lessor, or an attorney for the owner or lessor.
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 G. L. c. 239, § 1. A separate
legal issue is raised where, unlike here, the named plaintiff is
the owner or lessor of the property, but the person who signs
the summary process summons and complaint is neither the
individual owner or lessor nor his or her attorney.
12
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 c. 93A, and separately moved to dismiss the complaint,
arguing that, where LAS was not the owner of the property, the
agent engaged in the unauthorized practice of law by signing and
filing the complaint on behalf of High Rock Group. Id. The
judge denied the motion to dismiss, and we concluded that the
judge erred in doing so, holding that “a property agent who is
not an attorney may not represent a property owner in a lawsuit
in the Housing Court.” Id. at 851.
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
13
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 on 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 G. L. c. 221, § 48
(“Parties may manage, prosecute or defend their own suits
personally . . .”); Opinion of the Justices, 289 Mass. 607, 614-
615 (1935), abrogated on other grounds by Real Estate Bar Ass’n
for Mass., Inc. v. National Real Estate Info. Servs., 459 Mass.
512 (2011) (Real Estate Bar Ass’n) (“Individuals have been
6 The agent in LAS Collection Mgt. v. Pagan, 447 Mass. 847,
848, 850 (2006) (LAS), not only filed and signed the complaint
as an agent of the property owner but also “managed the
prosecution of the complaint[] and cross-examined witnesses” at
an evidentiary hearing. Basile contends that, because the agent
in LAS did more than sign the complaint, our ruling in that case
was not that an agent engages in the unauthorized practice of
law by signing and filing the complaint alone, but that proof is
required that the agent also managed the prosecution of the
complaint and represented the property owner at a court
proceeding. We disagree; by concluding that the judge erred in
denying the motion to dismiss, which was decided early in the
litigation, we effectively ruled that the signing and filing of
the complaint was enough to constitute the unauthorized practice
of law.
14
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
7 A corporation, however, may only be represented in court
by an attorney, except in small claims court. See Varney
Enters., Inc. v. WMF, Inc., 402 Mass. 79, 82 (1988) (recognizing
“the well-established common law principle that corporations
must appear and be represented in court, if at all, by
attorneys”).
8 We also recognize that nonattorneys may assist litigants
in various ways without engaging in the unauthorized practice of
law. Paralegals who are not attorneys may, with appropriate
supervision, assist attorneys who themselves provide legal
advice. See Mass. R. Prof. C. 5.5 comment 2, as appearing in
471 Mass. 1452 (2015). Nonattorneys may provide information to
self-represented litigants to help them understand their legal
rights. They may also assist self-represented litigants in
articulating the facts that are necessary to present the
litigants’ claims and defenses clearly, accurately, and
comprehensively. And they may help self-represented litigants
navigate through a legal system the litigants may not adequately
understand. For instance, in the SAFEPLAN advocacy program
established by the Massachusetts Office for Victim Assistance,
nonattorneys help victims of domestic and sexual violence by
informing them of their legal rights and options in civil and
criminal court proceedings and assisting them in completing the
requisite forms and applications. See Massachusetts Office for
Victim Assistance, Frequently Asked Questions About SAFEPLAN,
http://www.mass.gov/mova/safeplan/faqs [https://perma.cc/8RN3-
3MAB]. They may not provide legal advice, but they may provide
a referral to an attorney where one is needed. Id.
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, Self15
another to sign and file his or her complaint, the person doing
so must be an attorney; if a nonattorney were to sign and file
the complaint on behalf of the plaintiff, the nonattorney would
be engaging in the unauthorized practice of law and the
complaint would be subject to dismissal on that ground. See
LAS, 447 Mass. at 851.
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.
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 court).
16
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 of 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
17
property agent signed complaint by property owner), with Varney
Enters., Inc. v. WMF, Inc., 402 Mass. 79, 82-83 (1988) (where
corporation employee 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 engage 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 landlord will then
be given time to retain an attorney before the complaint is
dismissed. For those in the latter category, only immediate
dismissal will bring an end to this “game.”
18
3. G. L. c. 93A counterclaim. In LAS, 447 Mass. at 851,
we dismissed the property owner’s complaint but remanded the
case to the Housing Court to consider the tenant’s counterclaims
concerning the unauthorized practice of law, including the
counterclaim alleging a violation of G. L. c. 93A. We did not
decide in that case whether a tenant may prevail on a
counterclaim under c. 93A based solely on the property agent’s
unauthorized practice of law. Here we must address that issue,
and decide whether, based on the facts in this case, the judge
erred in entering judgment in favor of Basile on Hatcher’s
c. 93A counterclaim.
A complainant bringing a claim under G. L. c. 93A, § 9,
must establish that the defendant committed an “unfair or
deceptive act[] or practice[] in the conduct of . . . trade or
commerce.” G. L. c. 93A, § 2 (a). Generally, litigation
conduct alone is not a sufficient basis for a c. 93A claim. In
Morrison v. Toys “R” Us, Inc., Mass., 441 Mass. 451, 458 (2004),
we held that a defendant could not be held liable under c. 93A
for bad faith settlement practices, emphasizing that, with few
exceptions,9 c. 93A does not “establish an independent remedy for
9 By statute, litigation conduct can constitute a violation
of G. L. c. 93A where the defendant is engaged in the business
of insurance. G. L. c. 176D, § 3 (9) (insurer’s unfair claim
settlement practice is unfair or deceptive act or practice).
And under our common law, we have recognized that litigation
19
unfair or deceptive dealings in the context of litigation.” Id.
at 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 process complaints in his own name or in
the name of his business, Hatcher’s c. 93A claim is predicated
only on Basile’s conduct in this case.
In the context of summary process, we decline to interpret
c. 93A so broadly as to impose liability — with the possibility
of multiple damages and attorney’s fees — for such conduct
alone. To do so would invite a c. 93A counterclaim whenever
there is a defect in a plaintiff’s filing of a summary process
complaint due to lack of standing or the unauthorized practice
conduct may be the basis for a c. 93A claim where the defendant
who initiates a lawsuit “does not have probable cause to believe
the suit will succeed, and is acting primarily for a purpose
other than that of properly adjudicating his claims.” G.S.
Enters., Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 273, 277
(1991) (litigation conduct that could support claim for tortious
interference with contractual relations could also support
c. 93A claim). See, e.g., Refuse & Envtl. Sys., Inc. v.
Industrial Servs. of Am., Inc., 932 F.2d 37, 43 (1st Cir. 1991)
(litigation conduct that constituted abuse of process was also
unfair and deceptive practice under c. 93A). Hatcher’s c. 93A
counterclaim does not fall within those exceptions. The judge
did not make a factual finding as to whether Basile knew that he
had no standing to bring the summary process complaint or knew
that he was engaging in the unauthorized practice of law. Nor
does Hatcher allege that Basile filed the complaint for a
purpose other than to seek her eviction.
20
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 c. 93A, which specify various unfair and deceptive
practices in the landlord-tenant relationship, make no mention
of litigation conduct, with the exception of 940 Code Mass.
Regs. § 3.17(5)(b) (2014), which prohibits owners from
“commenc[ing] summary process . . . before the time period
designated in the notice to quit . . . has expired.”10 This
omission is especially noteworthy given how comprehensive and
detailed the regulations are in identifying unfair and deceptive
practices in this context. See, e.g., 940 Code Mass. Regs.
§ 3.17(1)(a) (2014) (renting premises that are “unfit for human
habitation”); 940 Code Mass. Regs. § 3.17(2)(a) (2014) (sending
notice to tenant that appears or purports to be official or
judicial document); 940 Code Mass. Regs. § 3.17(4)(a) (2014)
(requiring excessive security deposit). We therefore agree with
the judge that Basile’s conduct in this case did not violate
c. 93A.
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
10 Hatcher has not alleged that Basile committed a violation
of G. L. c. 93A on this ground.
21
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
self-represented.11
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
11 In the Housing Court in 2017, ninety-three per cent of
tenants and thirty-three per cent of landlords in summary
process cases were self-represented, as were sixty-nine per cent
of litigants in all cases. See Housing Court Department, Fiscal
Year 2017 Statistics, http://www.mass.gov/courts/docs/courtsand-
judges/courts/housing-court/2017-hc-self-representedrepresented-
litigants-by-court-location.pdf
[https://perma.cc/T4R7-53J7].
22
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 groundless 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 longterm
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)
23
(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 process complaint is not an attorney, all parties are at
risk of harm stemming from that unauthorized practice of law.
As earlier stated, the purpose of our rule limiting the practice
of law to attorneys is to protect the public. See LAS, 447
Mass. at 850. Attorneys are officers of the legal system who
are subject to judicial oversight and “held to a high standard
of honor and of ethical conduct.” Lowell Bar Ass’n, 315 Mass.
at 180. See S.J.C. Rule 3:07, as amended, 471 Mass. 1304 (2015)
(Massachusetts Rules of Professional Conduct). Under the rules
of professional conduct, attorneys must represent their clients
with competence, Mass. R. Prof. C. 1.1, as appearing in 471
Mass. 1311 (2015), and diligence, Mass. R. Prof. C. 1.3, as
appearing in 471 Mass. 1318 (2015). They may not abuse the
court process by bringing frivolous claims, Mass. R. Prof.
C. 3.1, as appearing in 471 Mass. 1414 (2015), and they must
deal with fairness to opposing parties and their counsel.
Mass. R. Prof. C. 3.4, as appearing in 471 Mass. 1425 (2015).
When dealing with unrepresented individuals, attorneys may not
state or imply that they are disinterested and must not give
legal advice, other than the advice to secure counsel, to those
whose interests may be in conflict with their clients’.
24
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 940 Code Mass. Regs.
§ 3.17(5)(b).
Precisely because 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.
25
See G. L. c. 231, § 6F (attorney’s fees and other costs may be
assessed against parties who were “represented by counsel” for
claims that are “insubstantial, frivolous[,] and not advanced in
good faith”); Mass. R. Civ. P. 11 (a), as amended, 456 Mass.
1401 (2010) (attorneys subject to “appropriate disciplinary
action” for wilful violation of rule prohibiting them from
signing groundless pleadings).
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, cert.
denied, 323 U.S. 740 (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
26
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), cert. denied,
556 U.S. 1235 (2009), 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
determine whether sanctions are warranted against Basile
pursuant to the court’s inherent power to ensure the fair
administration of justice and, if so, in what amount.
27
So ordered.