Can I represent myself in Housing Court?
Can a landlord represent themselves in Housing Court? This was the subject of much discussion in early 2018 as well as the subject of a landmark case now referred to as Hatcher.
Discussion on whether you can represent yourself in Housing Court
The decision tree for representing yourself is very complicated. In general, the lessor or the owner has standing to bring an action for possession. But LLC’s and Inc’s must have attorneys. In practice, it can be complicated to figure out who is the lessor or the owner when LLC’s and Inc’s are involved.
The easiest case is if you have a written rental agreement that lists your name alone, or if you alone are listed on the deed. In the case where you are listed alone, you are clearly the lessor or the owner and you have standing to bring the action yourself without an attorney. For example, if “Larry Landlord” is listed on the rental agreement alone, he can bring the case regardless of who is the owner. If he is listed on the deed alone, he can bring the case regardless of who is the manager on the rental agreement.
Suppose for example you list your name on the rental agreement but an LLC actually owns the property. For example, “Larry Landlord” signs the lease but “123 Main St LLC” is on the deed. In that case, you can bring the case to court yourself as the lessor. Note however that any counterclaims and settlements will enter against you personally. You can bring the case, but your LLC has done very little to protect you from liability.
The same is true if you have a property manager LLC and you are the owner personally. You can bring your case as the owner. Again, counterclaims will fall to you personally, so you have no liability protection.
It gets harder if you are listed on a written rental agreement as the “agent for” someone else. If that someone else is the owner, then it’s just like the scenario above where you’re the lessor and you can bring the case. If that someone else is not the owner, then what are they? They must be the primary lessor. For instance, “Larry Landlord agent for Landlording LLC” where the owner is “123 Main St LLC” makes it look like “Landlording LLC” is the lessor. In that case, Larry can’t bring the action unless he’s an attorney. Landlording LLC is the lessor and all LLC’s must have attorneys.
All of this logic is nullified if you are signing as the employee or officer of an LLC or Inc. In these scenarios, the LLC or Inc. must always be represented by an attorney. This is true regardless of whether you are a single member corporation. For instance, if you sign the rental agreement, “Larry Landlord, President of Landlording LLC,” Landlording LLC needs an attorney.
If you are at all uncertain about what to do, get a consult from an attorney.
What if I’m an LLC and I want to represent myself in Housing Court?
There are many successful landlords who own lots of property in their own name. They accept the risk of liability and carry a large insurance policy. They don’t use LLC’s. You can use this strategy. Get rid of your LLC’s and you can bring all your cases yourself.
If you want the protection of an LLC, then you must treat it as a separate entity. Hiring an attorney is just the cost of having the extra liability protection that comes with an LLC.
What if I try to represent myself in Housing Court but I make a mistake and can’t?
The best-case scenario is that the clerk’s office will spot your error, put your case on hold for a week, and tell you to get an attorney. They could also reject your filing, causing much greater delays. Or they could miss the error entirely. This is the worst-case scenario: the tenant advocates might spot the error and bring a counterclaim against you for the unauthorized practice of law.
Note that a trial or appellate judge can raise the issue of representation sua sponte, meaning without either side bringing it up. This means you have possible exposure even neither party notices. Try to determine at the earliest possible point whether you can represent yourself, or hire an attorney.
The courts are keenly aware of the need to have an attorney and most likely your case will be put on hold.
If you are at all uncertain about what to do, consult with an attorney.