• Paul Peter Nicolai

Commercial Landlord & Tenant – Possession

Updated: Apr 17

A commercial tenant sued a landlord in Superior Court. The landlord responded by starting a summary process action in District Court for possession and damages instead of defending the Superior Court case. The District Court judge denied the tenant’s move to dismiss saying the landlord was entitled to have the issue of possession decided promptly in District Court rather than resorting to a counterclaim in the Superior Court action. This decision was upheld on appeal.


WHY THIS IS IMPORTANT… The court noted that the normal rule which requires the dismissal of the second case where the same parties are litigating the same issue in a prior case does not apply. Even though the parties are the same, the issue was not the same. In the earlier case only damages were in question. In the second case possession was the issue. This means a commercial tenant cannot stop a landlord from evicting by filing a damages case.