Landlords' access to justice: Is pro se representation a good business decision for landlords in the commonwealth?

Issue May 2014 January 2014 By Jordana Roubicek Greenman

The recent proposal to extend the jurisdictional reach of the Housing Court across the commonwealth will provide a benefit of expanded access, but may also compound frustrations of pro se litigants. A tenant clinic is offered every Monday to assist tenants. No similar service is offered to landlords, who can be exposed to damages for procedurally deficient cases and strict liability under state law. Having a lawyer referral service for landlords can help achieve greater efficiencies for the Housing Court by giving property owners access to an accurate assessment of their legal rights and obligations and help them move through, or avoid entirely, a process they may not fully understand.

As a sole practitioner in Boston focusing on real estate and related matters, including landlord/tenant matters, I have had the opportunity to represent both small and large landlords through Summary Process cases in the Housing Court as well as the District Court. The Housing Court has a much larger pool of pro-se litigants than any other court in the state, in terms of both tenants and landlords. For tenants served with a summons and complaint to appear in the Boston Housing Court, there is an opportunity for students and members of the bar to assist in filling out pre-printed forms and postponing eviction cases for no less than two weeks so that tenants have an opportunity to present a defense. Landlords have little access to helpful information, such as a clinic to explain the security deposit or lead paint law, which can lead to serious repercussions. Many landlords believe the idea of retaining a lawyer is cost prohibitive. In fact, hiring counsel is likely to help move the case along faster and more efficiently. The attorney will get an accurate assessment of the landlord's rights as a property owner, helping the landlord get back to business.

This lack of real, substantive assistance for pro-se landlords does not affect the big development companies with hundreds of units who have a greater ability sustain a $10,000-$50,000 loss each year and are required by statute to have a lawyer, but there is a serious adverse impact on the "little guy" who buys a piece of "investment property" in hopes of making a little extra money to support the family. The accessibility of the Housing Court and the ability of the average landlord to walk in, purchase a $5 summons and take it to be served without performing the checks and balances a lawyer would perform, can result in serious and devastating financial consequences. The Housing Court staff does their very best to help everyone, however, like any court, the Housing Court staff is barred from giving legal advice and cannot give referrals to landlords seeking lawyers.

Landlord-tenant law in Massachusetts is not as simple as some may think. Between the several different Section 8 programs, subsidized housing programs, elderly housing programs and so-called sober homes, it is important to be familiar with the intricacies of each, including, without limitation, the special rules governing evictions. For example, the average pro-se landlord is unlikely to either be aware of or understand the additional requirements when commencing an eviction against a Section 8 tenant and can end up getting repeatedly dismissed from court on a technicality because they are unable to understand how to cure the defect without an advocate. In my practice, I have created an affordable fee structure which allows landlords to obtain the legal representation they need, including the ability to effectively serve and respond to discovery, file dispositive motions, and zealously defend numerous counterclaims, some of which may be frivolous.

At a minimum, landlords should be encouraged to have their case (including terms of tenancy, length of tenancy, condition of property, etc) reviewed by an attorney prior to making any decision to represent themselves. In some cases, even a one hour consultation would be sufficient, particularly in light of the proposed expansion throughout the commonwealth.

Jordana Roubicek Greenman is a sole practitioner whose practice consists of a broad range of real estate related matters, including commercial and residential landlordtenant litigation, condominium association representation, and commercial and residential conveyancing. Greenman has a reputation for aggressively advocating and ensuring her clients' goals are pursued and attained. She was recognized in Super Lawyers Rising Stars 2012 and is a member of the Massachusetts Bar Association and the Real Estate Bar Association.