Trespasser or Tenant? Superior Court Case Helps Define the Difference
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By Eric Weld, MassLandlords, Inc
Imagine you are accused of being a trespasser in your own home, the home you’ve lived in for more than eight years. You’re hauled into court as a defendant facing the prospect of being ordered to vacate your longtime residence within days.
The secluded and expensive looking 66 Laurel Dr, Brookline where Slavin and Lewis cohabited for eight and a half years. Google Street View https://goo.gl/maps/aNoFXjWsX54EufCg8
That was the recent circumstance for Nanette Lewis, the defendant in a Norfolk Superior Court case brought by her former domestic partner, Sumner Slavin. Slavin asked the court to issue a preliminary injunction, labeling his former partner an unapproved occupant – a trespasser – and ordering her to leave the Brookline residence that they lived in together for about eight and a half years.
The situation arose in fall 2021, when Slavin decided the couple’s romantic relationship was over. He immediately moved out of their home, which is owned by Slavin, and was purchased through a trust in which he is the sole beneficiary. Lewis remained in the home. After about a month, Slavin asked the housing court for an injunction that would have her forcibly removed. That motion was dismissed, and he subsequently filed the motion in Norfolk Superior Court.
The Superior Court denied the injunction and Slavin appealed the decision, arguing that Lewis had lived in his property as “a licensee – a mere guest.” As such, Slavin held, now that their romantic relationship was over he had the right to seek her removal as “she is now a trespasser, or in layperson’s terms, a squatter,” as quoted from his original motion.
Slavin v. Lewis Decision
The Slavin v. Lewis case has several more court layers, including a countersuit in which Lewis, a renowned interior designer, alleges that the couple agreed to be business partners in purchasing the Chestnut Hill property. According to Lewis’ countersuit, the general agreement was that Slavin would provide funding for the purchase and renovation of the property while Lewis would coordinate the purchase and oversee design and renovation, possibly for the eventual sale of the property for a sizable profit. This agreement matched a partnership Lewis previously had with a former business partner, “flipping” high-end properties and evenly splitting the profits. Slavin and Lewis eventually decided to move into the vastly expanded and improved Chestnut Hill home together in 2013.
The Appeals Court issued a decision on June 16, 2022, upholding the Norfolk Superior Court’s decision denying a preliminary injunction to force Lewis to vacate the couple’s home. In doing so, it reinforced the court’s assertion that summary process was the exclusive legal avenue for removing an approved occupant from a residence.
(Simultaneous to the Superior Court suit and appeal, Slavin also filed a summary process to remove Lewis from his property. That case is pending.)
MassLandlords Amicus Brief
MassLandlords submitted an amicus brief for the Slavin v. Lewis case, in support of Lewis’ countersuit requesting denial of a preliminary injunction to force Lewis to vacate the couple’s co-residence.
While we acknowledge the plaintiff’s – Slavin’s – legal ownership of the couple’s property, with his name on the deed, we recognize Lewis’ occupancy rights as someone who was invited to reside in the home, and who lived in, designed and vastly improved the property over several years. The couple’s business agreement aside, it is impossible to define Lewis as a trespasser in this case, as Lewis was invited to live in the home.
MassLandlords’ amicus brief argues (paraphrasing from a 1988 Massachusetts case Gage v. Westfield): “Entry made [into a property] with the consent of the owner is not a trespass. What the precedents make clear is that where an owner permits a person to occupy the owner’s property, that occupant is not a trespasser.”
This legal definition was ratified through legislation, M.G.L. 266, s. 120, the trespass law, which states that the only mechanism by which a property owner may recover property from an occupant approved by the owner to live there is through “appropriate civil proceedings,” i.e., summary process.
Why Did MassLandlords Take the Renter’s Side?
We submitted an amicus brief in support of the defendant’s – Lewis’ – argument based on two points:
1) we recognize the fairness of the defendant’s rights as a longtime occupant who added value to the property.
And 2) we seek to prevent an unwittingly massive fee shifting from owners to renters.
Vulnerability to the Consumer Protection Law
A landlord who is able to oust a tenant through preliminary injunction, having successfully deemed them a trespasser, could be vulnerable to triple damages for charges in violation of Chapter 93A, the state’s consumer protection law.
Imagine a scenario in which you win a lawsuit forcing your former tenant out of your rental property on the grounds that they are trespassing. Five years down the road, that former tenant is now a client of legal services and the primary witness in a lawsuit, swearing under oath that their life went off the rails at the moment the trespass law was improperly applied to remove them. Legal services will assert that their client had been entitled to summary process five years earlier based on any number of reasons. Damages claimed include five years’ worth of alternate housing, medical bills and emotional distress, times three, plus attorney’s fees.
Even if legal services never won such cases, the settlements could substantially increase their lobbying power at the expense of people working to provide rental housing.
A ruling in favor of Slavin’s motion for a preliminary injunction forcing the removal of a longtime resident from his property based on his whim would add layers of confusion to already complicated landlord-tenant regulations and have potentially disastrous connotations as a precedent for countless landlord-tenant disputes.
Under what circumstances in that legal framework could a landlord say their tenant is a trespasser and seek removal based on that assertion rather than file summary process?
Permission to Reside = Legal Occupant
From a strictly legal standpoint, any individual who is given permission – by either the owner or a tenant – to occupy a residence is at that point not a trespasser, but an approved occupant. Trespass is no longer a consideration. From then on, because they received approval to reside there, even if only temporarily, the only legal remedy to force removal of that individual is via summary process.
Even a tenant who overstays beyond a notice to quit or lease deadline remains a tenant, as legally defined. That person does not become a trespasser when their lease or occupancy runs out. Legal recourse is a summary process in housing court.
This can be a frustrating circumstance for landlords whose tenants invite unleased friends, family members or romantic partners to move into their residence without informing the owner or manager. But the same legal concept still applies in that case: summary process.
What if you had a tenant who invited their partner to live with them, then the relationship broke up and your original tenant on the lease moved out, leaving the partner not on the lease in the rental? Even then, the remaining non-leased occupant is not a trespasser, having received permission from the leased tenant to live on the premises. Summary process is your avenue to repossess the property.
And certainly, if a tenant requests permission to allow a friend or family member to move into their rental, even temporarily, our recommendation is always against such casual occupancy. Either a would-be occupant should be screened and added to a rental agreement, or should not be given permission to move into your property.
A Form of Domestic Abuse?
The case of Slavin v. Lewis is not as unusual a circumstance as one might expect, according to Jamie Ann Sabino, Deputy Director of Advocacy for the Massachusetts Law Reform Institute, a poverty law and policy nonprofit that advocates for vulnerable and disadvantaged people. MLRI also submitted an amicus brief for the Slavin v. Lewis case, in collaboration with six other advocacy groups representing victims of domestic abuse.
“Many abusers exert economic control over their victims by intentionally excluding their victims’ names from housing paperwork such as deeds and leases,” notes the amicus brief. “Thus, survivors are frequently in the situation as the appellee here: facing threatened removal from a longtime home, without the security of a name on a deed or a lease.”
All such disputes are not abusive, and we don’t suggest there is abuse in the Slavin v. Lewis case. But frequently, domestic partners, often unmarried, decide to live together in a residence owned or leased by only one of them. When the relationship turns sour, the occupancy rights of the partner whose name is absent from the lease or deed are in question. Unfortunately, many people (mostly women) in such a situation feel intimidated, are unaware of their occupancy rights and are coerced to move out.
Occupancy Rights in Question
The law seems well-defined: a trespasser is someone occupying a property who was never invited to live there by anyone with possession – a landlord, occupying tenant or property manager. Anyone else, who has received permission by someone in possession to occupy a residence – is a legal occupant who can be sued in housing court via summary process.
Despite the seeming simplicity, cases frequently occur in which a property owner, following a change of heart, abruptly ousts an occupant of the household as if they were suddenly a trespasser with no occupancy rights.
Barbara Hirshfield, a loan broker living in Lexington, was in a similar situation to Nanette Lewis. Hirshfield lived with her partner in an apartment for about six years (the couple were together for about 11 years) until her partner announced that their relationship was over and that she had to move out, at age 78.
“When he decided that it was time to move on with another woman, I was basically evicted,” Hirshfield recently told MassLandlords.
Amid the Covid pandemic, Hirshfield hastily moved in with her daughter and her family, where she has remained since. Hirshfield has spoken out about her and other similar circumstances, appearing on an online news show and submitting an op-ed about the situation to AARP and the New York Times.
When she approached family law attorneys about her predicament, Hirshfield says she was told that there was no legal protection for her because the couple was not married and had no documented agreement.
Create a Documented Agreement
A legal agreement, Hirshfield recommends, is the best way to avoid legal trouble for both landlords and tenants. Regardless of the relationship between two people moving in together – engaged, married, unmarried partners, casual acquaintances or friends – some kind of document spelling out the conditions of co-residence should be signed by all parties planning to live together.
A legal agreement between Slavin and Lewis, including parameters of their business arrangement, could possibly have avoided Slavin’s trespass suit and properly diverted the legal action to a summary process in housing court, where it belonged.
Hirshfield insists her experience – and that of Nanette Lewis – is not unique. The amicus brief submitted by MLRI and other domestic abuse protection agencies supports that claim.
Even in the absence of a paper agreement between domestic partners, a trespass action is not a viable legal option. The moment an individual is invited to live in a residence, that person gains the legal right to be there. They cannot legally be forced to move out or deemed a trespasser, regardless of the status of the personal relationship between that person and the property owner or tenant.
Summary Process or Cash for Keys
For landlords who find themselves in a variation of the above scenarios, or who end up with occupants in their rentals who were invited in by their leased tenants, your options are: 1) to serve a notice to quit and file a summary process; or 2) if you seek a more expedited vacancy, to offer cash for keys to incentivize the occupant to leave.
To attempt to oust an invited occupant via a trespass action is to tempt a Chapter 93A violation lawsuit down the road, at potentially massive legal cost.
Summary process is the only legal recourse by which to forcibly remove an approved occupant from a property.
