Self-Help. Ok or Not?
“Self-help,” in a leasing context, typically refers to the landlord’s historical remedy of locking out a defaulting tenant and obtaining possession of the premises without going through judicial procedures. Traditionally under the common law, a landlord was subject to few limitations in choosing its remedies against a defaulting tenant, including the liberal use of self-help. However, modern jurisprudence provides tenants with much greater protection from eviction and also seeks to prevent possible violent landlord-tenant confrontations. Therefore, the majority of states have now abolished the traditional rule of self-help and permit landlords to evict tenants only through court proceedings. In connection with the move away from self-help, most states have established summary eviction proceedings, which in theory provide landlords a more efficient and expedient method of retaking possession than traditional civil litigation.
Even with respect to those states that continue to recognize a landlord’s right to self-help, many attorneys are very reluctant to recommend this remedy for their landlord clients given (i) the exposure for significant liability to the tenant if the tenant has a valid defense to the alleged default, (ii) the availability of summary ejectment proceedings and (iii) the often correct perception that courts take a dim or outright hostile view towards self-help. Note further, that in the minority of states that still permit a landlord to exercise self-help, for the most part this remedy is expressly limited to commercial landlords with residential tenants already being afforded much greater protection. For the commercial landlord or tenant operating in the District of Columbia, Virginia and Maryland, this article will focus on the widely differing treatment of self-help under the respective laws of these neighboring jurisdictions.
District of Columbia
The District of Columbia has followed the modern trend away from self-help. It is settled law that a commercial or residential landlord in Washington, D.C. cannot use self-help to evict a tenant. In Simpson v. Lee, 499 A.2d 889 (1985), the District of Columbia Court of Appeals held that neither the landlords of commercial or residential property can employ the common law right of self-help. In an earlier case, Mendes v. Johnson, 389 A.2d 781 (1978), the court reasoned that, when Congress created a summary judicial process to enable a landlord to reacquire possession of property, Congress necessarily abrogated the landlord’s right of self-help. Accordingly, the Mendes decision found that a landlord cannot unilaterally evict tenants by, for example, changing the locks or removing their personal possessions.
In Virginia, the commercial landlord retains the traditional remedy of self-help with certain importation limitations. First, the lease must not specify otherwise, so the default and remedy provisions will require great scrutiny for the existing lease and careful drafting for the lease under negotiation. Second, the landlord must not create a breach of the peace or use unreasonable force. To avoid a breach of the peace, most landlords in Virginia exercising self-help choose to change the locks in the middle of the night while the tenant’s business is closed and the premises unoccupied. As in most states, self-help remedies have been eliminated for residential landlords pursuant to Virginia Code sections 55-225.1 and 55-248.36.
The leading Virginia case on commercial self-help remains Shorter v. Shelton, 183 Va. 819 (1945), where the Supreme Court of Virginia reaffirmed the landlord’s common law right of entry. Shorter v. Shelton makes clear, however, that no more force than is reasonably necessary is permitted, and that liability for the excessive use of force by a landlord is recognized.
Maryland is similar to Virginia in the approach to self-help, but Maryland courts have made very clear that they discourage the use of self-help and would prefer landlords exercise their judicial remedies. The lease must be clear that re-entry is an available remedy for the landlord without an express prohibition against self-help. The tenant must also be in default under the lease beyond any applicable notice and cure period. Finally, the retaking of possession by the landlord must be peaceful. Note that a residential landlord in Maryland may never employ self-help, but only pursue eviction through the judicial process.
The leading Maryland case on this subject remains K&K Management, Inc. v. Lee, 315 Md. 137 (1989), where the Court of Appeals of Maryland makes clear that re-entry is a proper remedy after a breach of a commercial lease, and that it is not necessary for the landlord to resort to legal process provided the repossession can be effected peacefully. The court in K&K Management provides, however, that “(w)e do not encourage resort to self-help, and, for all of the practical reasons which the instant action makes abundantly clear, the Bar usually counsels against it.”
Because of Maryland’s stated preference for the judicial process and discouragement of self-help, the commercial landlord choosing to move ahead with self-help must avoid any possible disturbance of the peace, no matter how trivial.
Because of the potential liability for damage to the tenant’s property and interruption of the tenant’s business, landlords must tread very carefully in Virginia and Maryland, or other states recognizing variations of the traditional common law rule, before deciding to exercise self-help. In many cases, the practical considerations should control, with exercising every legal right afforded under the lease not always being the wisest decision for the pragmatic commercial landlord.
Many attorneys will never advise their commercial landlord clients to exercise self-help, given the risks of liability and the relative ease of modern summary ejectment. Other more aggressive attorneys will counsel their landlord clients to take a more aggressive approach, arguing that immediate repossession of the premises with the possibility to re-lease at market rates more than offsets the potential exposure to damages.
Instead of taking the view that self-help should never be utilized, it is best to analyze each situation on a case-by-case basis since self-help, when correctly applied, can be an effective option for the careful landlord. If the landlord does decide to exercise self-help, it is paramount that repossession be peaceful, witnessed and well documented with all of the tenant’s personal property inventoried and protected. Further, self-help should only take place during a time when there is no possibility for a contentious disturbance or breach of the peace. If the tenant resists in any fashion or arrives during the changing of the locks, the landlord is better served to back down as use of the formal judicial process could spare the landlord in the long run. No use of force, even minimal, should ever be used.
If you are a commercial landord or tenant and want to discuss these issues, please contact John G. Kelly at 703-284-7251 or at firstname.lastname@example.org