The Massachusetts Appeals Court recently held in 11-227-10 Cummings Properties, LLC v. Cepoint Networks, LLC, et al.,(Appeals Court, November 19, 2010 ), that the guarantor of a commercial lease agreement who was not in possession of the property, could not be named as a party to a summary process (eviction) case.
Summary process is an expedited eviction procedure that can be brought in either district court (commercial or residential evictions) or housing court (residential evictions only). In a summary process case, a landlord will typically get a trial in about 4-6 weeks; a relatively swift process. Compare this abbreviated trial track to state Superior Court, where a litigant may wait up to 2 years or more to receive a trial date. These delays are only getting worse as the Courts’ operating budgets are slashed and their staffs’ downsized.
The Appeals Court reasoned in the Cummings Properties case that summary process is a statutory procedure that does not provide for a personal guarantor, who is not in possession of the property, to be named as a defendant. Therefore, landlords who want to sue non-occupant personal guarantors in order to collect rent – or other monies owed- have to file a separate lawsuit seeking redress. Requiring landlords to file a separate claim against personal guarantors who are not in possession of rented property, will undoubtedly result in a prolonged dispute and additional expense to both landlords and an already burdened court system. However, some of the expenses landlords would incur to file suit against a personal guarantor may be mitigated through the filing of a motion to consolidate both the eviction lawsuit and the lawsuit against the personal guarantor into one unified action, however, it remains to be seen if this strategy will be well received by the Court.