Legal Fees and the Delicate Balance of Summary Process Proceedings

Two federal lawsuits pending in Boston are challenging a practice that has long operated in the background of Massachusetts summary process cases: the assessment of landlord legal fees before a case proceeds to judgment and before a judge reviews those fees.

The cases, filed against AvalonBay Communities and Greystar, ask a federal court to determine whether landlords may charge tenants for attorney’s fees when eviction matters are dismissed or resolved without a formal judgment awarding those fees.

Beyond the individual disputes, the litigation raises a broader structural question: Would prohibiting the assessment of legal fees before formal judicial review undermine the system that currently encourages negotiated, pre-trial resolutions in Housing Court?

The Legal Argument

The plaintiffs’ attorneys argue that Massachusetts law permits attorney’s fees to be shifted only after:

A court enters judgment; and
A judge reviews and approves the reasonableness of the fees.

Under this view, charging legal fees absent that judicial review — particularly when cases are dismissed or resolved without trial — violates state law and potentially consumer protection statutes.

On its face, the argument sounds straightforward: no judgment, no fees.

But summary process practice in Massachusetts is more nuanced.

The Role of Agreements for Judgment

The vast majority of eviction cases in Massachusetts do not go to trial. Instead, they are resolved through negotiated settlements, often memorialized as Agreements for Judgment. These agreements allow the parties to settle payment terms, timelines, and other conditions without a full evidentiary hearing.

Housing Court judges routinely encourage this approach. It reduces docket congestion, minimizes litigation costs, and often produces structured payment arrangements that allow tenants to cure arrears while giving landlords a predictable enforcement mechanism.

Agreements for Judgment are typically entered on the court record and become enforceable court orders. They function as binding resolutions that avoid the expense and uncertainty of trial.

Here is where the broader policy tension emerges.

If the law were interpreted to prohibit the assessment or recovery of legal fees unless a case proceeds all the way through trial and results in a formal fee award after evidentiary review, landlords would face a structural disincentive to settle early. In practical terms:

A landlord who resolves a case quickly through agreement might be unable to recover contractual legal fees.
A landlord who proceeds through trial to obtain a formal judgment might preserve the ability to seek those fees.

That dynamic could unintentionally encourage prolonged litigation rather than early resolution.

In other words, a rule designed to protect tenants from unreviewed fee assessments could also weaken the current system that incentivizes negotiated settlements — the very mechanism that often prevents eviction judgments from entering in the first place.

Why This Matters

At a time when most eviction cases resolve through negotiated agreements rather than trial, any change to how legal fees are assessed will affect litigation strategy on both sides.

The federal court cases may clarify whether existing Massachusetts law already prohibits pre-judgment fee assessments. But the broader policy question is more complex:

How do we protect tenants from improper or coercive fee practices while preserving a settlement-driven system that encourages early, negotiated resolution and keeps cases from proceeding through full trial?

The answer will shape not only fee ledgers, but the structure of summary process practice across Massachusetts.