By: Adam Leitman Bailey
June 1st, 2006
Many owners believe that the only way to get rid of a holdover tenant or a tenant that violates its lease is to sue to evict it, says New York attorney Adam Leitman Bailey. But, depending on what state law and tenants’ leases say, many owners may have another option, he says. They may be able to take back a tenant’s space using self-help eviction—that is, terminating the tenant’s lease and locking it out of its space.
While all states ban self-help evictions of residential tenants, some states permit self-help evictions of commercial tenants if that right is included in the tenant’s lease, says Bailey. Having a self-help eviction right can benefit you in several ways, he notes. You won’t have to go through a long and costly lawsuit to evict the tenant, thereby saving you lots of time and money. And you’ll be able to re-rent the tenant’s space faster, he adds.
But you first have to make sure you have a self-help eviction right and, if you do, make sure you properly exercise it. Otherwise, a court could hold you liable for damages for wrongfully evicting the tenant. We’ll give you six steps to take before and during a self-help eviction to protect yourself. And we’ll give you a Model Notice that you can adapt and send to a tenant to inform it that you’ve exercised your self-help eviction right (see box, page 2).
Step #1: Check State Law on Self-Help Evictions
First, have your attorney check your state law on self-help evictions, advises Bailey. As mentioned above, all states ban self-help evictions of residential tenants, but some states, such as Ohio and Texas, permit self-help evictions of commercial tenants, he explains. Note that some states, such as Tennessee, let owners use self-help eviction only if the tenant has abandoned its space, he adds.
Step #2: Check Lease for Self-Help Eviction Right
Next, check the tenant’s lease to see whether it gives you a self-help eviction right, suggests Bailey. Most states that permit self-help evictions of commercial tenants require owners to include the right to do so in the tenant’s lease, he says. If your state law and your lease give you a self-help eviction right and you exercise that right, a court will likely rule that you were justified in doing so.
After a restaurant tenant didn’t pay its rent, the owner took possession of the tenant’s space without notifying the tenant. So the tenant sued the owner, arguing that it had been wrongfully evicted. A Georgia appeals court ruled that the owner had properly exercised its self-help eviction right. The court explained that, under state law, an owner can exercise a self-help eviction right and take possession of a commercial tenant’s space “without notice or resort to legal proceedings” provided the right is included in the tenant’s lease. Here, the tenant’s lease gave the owner a self-help eviction right, which the owner properly exercised when the tenant violated the lease by not paying its rent, the court said [Rucker v. Wynn].
Note that you can’t sue to evict a tenant and exercise your self-help eviction right, warns Bailey. So you’ll have to choose which course of action is best for your situation, he advises.
POBM Says: Make sure the lease language spelling out your self-help eviction right is clear and unambiguous, advises Bailey. Because self-help eviction is such a drastic remedy, courts usually won’t approve its use if there’s any ambiguity in the lease’s language, he explains. If you have any uncertainty about whether you have a self-help eviction right, sue to evict the tenant instead.
Step #3: Make Sure Tenant Is in Default or Lease Has Expired
Even if state law and the tenant’s lease give you a self-help eviction right, don’t exercise that right unless it’s crystal clear that the tenant is in default of its lease or that its lease has ended, warns Bailey. For example, if the tenant doesn’t repair a roof leak and it’s not clear whether you or the tenant is responsible for such repairs, don’t exercise your self-help eviction right, he advises. Instead, sue to evict the tenant and litigate the issue in court, he says. But if a tenant doesn’t pay its rent for two months, it’s probably safe to exercise your self-help eviction right, he says. And make sure that any cure period given in the lease has run out before you either exercise your self-help eviction right or sue to evict the tenant, he adds.
POBM Says: Exercise your self-help eviction right only if the tenant has committed a “material”—that is, major—lease violation, advises Bailey. So don’t exercise your self-help eviction right if the tenant violates its lease by, say, ignoring your building’s recycling rules, but do exercise it if the tenant, say, doesn’t maintain the proper insurance coverage, he suggests.
Step #4: Take Possession of Tenant’s Space Peacefully
If, after taking the above steps, you decide to exercise your self-help eviction right, make sure you do so peacefully, advises Bailey. That is, avoid any interaction, conflict, or confrontations with the tenant when you take back its space and change the locks, he says. If possible, change the locks at night or on the weekend, when the tenant or its employees aren’t present, he suggests. If they’re present, don’t use any physical violence, threatening conduct, or intimidation, he adds. If the self-help eviction isn’t peaceful, a court may hold you liable for damages, warns Bailey.
It’s a good idea to videotape the self-help eviction to document its peacefulness, and to take photographs to show that you didn’t damage the space or any of the tenant’s property, and that you didn’t steal anything, says Bailey.
Step #5: Arrange for Removal or Storage of Tenant’s Property
Once you’ve taken back the tenant’s space and changed its locks, you’ll need to arrange for either the removal or storage of the tenant’s property, says Bailey. Check whether the tenant’s lease says what you must do with property a tenant leaves behind after it’s evicted, it abandons the space, or its lease ends—and then comply with those requirements, he says.
Step #6: Notify Tenant of Self-Help Eviction
Notify the tenant that you’ve exercised your self-help eviction right, advises Bailey. And do so even if the tenant already knows informally because, say, its employees were there when you took back the space, he adds. To notify the tenant, send it a notice, like our Model Notice, that says the following: