In Massachusetts, the legal process for evicting commercial and residential tenants is governed not by the common law but by a statute (a very old statute – parts of it date from the 1700s), M.G.L. c. 239. Chapter 239 gives a landlord an expedited judicial procedure, called summary process, to recover possession of its property from a tenant whose tenancy has been terminated – in other words, to evict the tenant. The statute also allows landlords to recover damages from the tenant for unpaid rent, use and occupancy, and, if the lease permits, rent going forward and fees.
In Cummings Properties, LLC v. Cepoint Networks, LLC (pdf), the Appeals Court was asked if a landlord in a summary process action could sue – in addition to the tenant – a guarantor of the lease. Cummings Properties leased commercial space to Cepoint Networks. Bernard Adama executed the lease on behalf of Cepoint, and also signed a personal guaranty of the lease. Cepoint defaulted on its rent payments, and Cummings brought a summary process action to recover possession and rent from Cepoint. Cummings also named Mr. Adama as a defendant, seeking to recover the unpaid rent from him under his guaranty. The District Court entered a default judgment against Cepoint, but dismissed Mr. Adama on the ground that a guarantor is not a proper defendant in a summary process action. The Appellate Division of the District Court affirmed.
The Appeals Court agreed. It found the answer as to whether a guarantor could be a defendant in a summary process action in the language of chapter 239, section 1, which provides that “if the lessee . . . holds possession without right . . . , the person entitled to the land or tenements may recover possession thereof under this chapter.” Thus, the Appeals Court reasoned, summary process under Chapter 239 can only be brought against the party in possession of the premises. Since a guarantor is not in possession, he is not a proper defendant in a summary process action. The Appeals Court rejected the landlord’s arguments that guarantors should be defendants because (1) the statute provides for damages, (2) the Massachusetts Rules of Civil Procedure provide for joinder, and (3) judicial economy warrants joinder. In essence, the Appeals Court’s response was that the statute’s language means what it says, and it’s up to the legislature to change it.
As I discussed in an interview in Massachusetts Lawyers Weekly, the Appeals Court’s reading of the statute is not surprising, but it certainly is unequivocal. A question that previously was left to the discretion of the trial judge is now answered in no uncertain terms. The Appeals Court’s decision in Cummings is consistent with previous decisions, such as Fafard v. Lincoln Pharmacy of Milford, Inc. (pdf) , in which the court limited claims in summary process proceedings on the grounds that Chapter 239 did not provide for them. Cummings may have an unintended consequence, however. Landlords now have to bring separate claims against guarantors, likely in Superior Court. Will tenant defendants in the related summary process action now argue that their case is related to the case against the guarantor, and seek to have both cases consolidated in Superior Court? If successful, this approach would take the eviction off the expedited summary process track and put it on the far slower Superior Court track, undermining one of the principal benefits of summary process: the relative speed with which landlords can recover possession of their properties. This possibility may cause landlords to hold off suing guarantors until after the summary process action has been completed.