What is a Summary Process?

C. Mitchell

Most of the time, the trial court system in common law countries like the United States and Great Britain, while effective, is not exactly expeditious. The time from a case’s initial filing to its ultimate resolution can take months if not years. The system has its benefits, and makes way for appropriate checks and balances; still, the time lapse can be prohibitive for some cases, particularly cases that involve personal or real property. Summary process is a facet of common law that allows a court to issue an expedited court order in certain circumstances.

Summary process allows a court to issue an expedited order under certain circumstances.
Summary process allows a court to issue an expedited order under certain circumstances.

Summary process is most commonly known as an eviction proceeding, though it has other limited uses, too. The main thrust of any summary process motion is that the value of the thing disputed is such that the elapsed time in waiting for a traditional trial would unfairly disadvantage the plaintiff. In other words, waiting for the judicial process would allow the defendant to continue his alleged wrongful property ownership for such a length of time that justice could not be said to be served.

Summary process is a procedure that a judge may use to render a quick judgment.
Summary process is a procedure that a judge may use to render a quick judgment.

In the United States, summary process is allowed, at the court’s discretion, in every state through codification in state statutes. In this way, it is not a part of the country’s common law tradition, but rather is an independently-set, state-by-state regulation. Not every statute uses the exact words “summary process,” but there is a fast eviction option everywhere. A similar fast option for property rights is typically a part of the black-letter law in other common law countries, such as Australia, Canada, and Great Britain.

Summary process is a special procedure a judge employs in order to render a quick judgment. A plaintiff must usually request it specifically, and often must petition the court for expedited process. When the court deems the process appropriate, it will accept briefs from both parties, and will consider all presented facts and applicable legal defenses. Most of the time, there is a summary process hearing, but no formal trial. The hearing will conclude with an order that resolves the case. A summary process order can be appealed, but unlike in a traditional trial setting, an appeal does not stay the need for immediate action.

If the court sides with the plaintiff, the order will generally require the defendant to surrender the property being repossessed, or leave the apartment or house from which he is being evicted. The court can also assess damage awards, breach of contract awards, and future rent payments if the court finds them warranted and they were allowed by the original lease.

The parties’ original agreement usually forms the brunt of what the court considers. If the plaintiff agreed that he would lease the defendant a car contingent on certain monthly payments, for instance, or if the plaintiff rented an apartment to the defendant on the condition that the property be maintained and pet-free, the plaintiff has an implicit right to demand that those conditions be met. The hearings often deal a lot with contract law and contract interpretation in cases where traditional contract-related legal defenses would be ineffective.

Sometimes, summary process is used as a means of enforcing a right within a larger lawsuit. Courts can issue summary orders that prohibit a party from selling disputed property, for instance, while saving other, more complicated issues for trial. Summary process actions-within-actions like this are common in divorce cases, where a lot of property is at stake that could be exploited during trial, or that stands to appreciate or depreciate significantly in value before the court could address it through traditional means.

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