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Advocate's View: Exploring self-help commercial evictions.

Byline: Daily Record Staff

What options does a commercial landlord have when a tenant stops paying rent and vacates the leased premises? As discussed below, landlords may commence an expedited court proceeding to dispossess a defaulting tenant and to recover past due rent. But, to save time and costs, a landlord may wish to avoid going to court altogether. Can a landlord ever take back its premises without going to court?

This article will explore the circumstances under which a landlord may engage in "self-help" to re-enter its property and the potential consequences of such a decision. As detailed below, a careful analysis is required before this action is taken.

Summary Proceeding

Under New York's Real Property Actions and Procedure Law, a landlord can start an expedited court action, known as a summary proceeding, to obtain a court order and warrant of eviction to dispossess a defaulting tenant. Summary proceedings are typically heard in town and village courts where the subject property is located.

"These causes of action are designed to be commenced, calendared and tried in a faster manner than a standard civil proceeding." Oluokun v. Rodriguez, 2005 N.Y. Misc. LEXIS 3455, *10 (New York City Civ. Ct. 2005). Even though these proceedings are intended to be efficient, "there must be strict compliance with the statutory requirements to give the court jurisdiction." Riverside Syndicate, Inc. v. Saltzman, 49 AD3d 402, 402 (1st Dept. 2008) (internal quotation omitted).

In many cases, a summary proceeding is an appropriate option for a commercial landlord. Often, it is the landlord's only option to re-enter the premises. But, in some cases, it makes sense for a landlord to avoid the costs and delays of going to court. For example, if a tenant's past due rent is likely uncollectible and a new tenant is ready to take the premises, the landlord may want to bypass court altogether to lease to the new tenant as quickly as possible.

Self-help under commercial leases

If a commercial lease specifically reserves a right of re-entry, a landlord "may re-enter premises upon breach of a condition subsequent so long as it is done peaceably and without force, and need not resort to an action or proceeding to regain possession." Jovana Spaghetti House v. Heritage Co. of Massena, 189 AD2d 1041, 1042 (3d Dept. 1993).

"Often, in commercial proceedings, the landlord will change the locks and retain the keys. Such conduct operates as an eviction." See Ferby v. Jonero, LLC, 44 Misc. 3d 1229(A), 1229A (Civ. Ct. Kings Cty. 2014) (acknowledging common law right of re-entry was not revoked by the statutory remedy of summary proceedings).

When a commercial landlord re-takes its premises without court intervention, it is using "self-help" to complete an eviction. The requirements for engaging in self-help are discussed more fully below.

The tenant's failure to pay rent

Initially, the right of re-entry is conditioned upon the tenant's failure to pay rent. See Bozewicz v. Nash Metalware Co., 284 AD2d 288, 288 (2d Dept. 2001) ("A landlord may peaceably re-enter commercial premises and regain possession pursuant to a right reserved in the lease if the tenant breaches its obligation to pay rent.") (emphasis added).

The lease must reserve the landlord's right of re-entry

Before engaging in self-help, a landlord should consult with an attorney to determine if the language of the lease properly reserves the right to re-enter the leased premises. The "right to re-enter can only be exercised if the lease expressly reserves that right." 1414 Holdings, LLC v. BMS-PSO, LLC, 116 AD3d 641, 643 (1st Dept. 2014) (finding the lease did not contain any specific provision allowing the owner to use self-help to evict the tenant); Martinez v. Ulloa, 50 Misc. 3d 45, 47 (App. Term. 2d Dept. 2015) ("the provisions of the lease reserved landlord's right to reenter and regain possession of the premises upon a breach of a condition of the lease").

It is important that the landlord comply with the terms of the lease, including notice requirements, before engaging in self-help.

A final demand for rent is required

The landlord must make a demand for the past-due rent before it re-enters the leased premises. See N. Main St. Bagel Corp. v. Duncan, 6 AD3d 590, 591 (2d Dept. 2004) (finding a wrongful eviction because the landlord did not make a demand for the rent before re-entering and re-letting the premises); Matter of Lee v. Ho-Park, 16 AD3d 986, 988 (3d Dept. 2005) (despite provision authorizing re-entry, landlord was not authorized to re-enter before demanding rent).

The re-entry must be peaceable

Finally, the landlord's re-entry must be "effected peaceably. Forcible entries are not permissible." 110-45 Queens Blvd. Garage, Inc. v. Park Briar Owners, Inc., 265 AD2d 415, 415 (2d Dept. 1999). "In the absence of force that tends to breach the peace, personal violence, or circumstances that cause fear of personal injury to a tenant, re-entry is not deemed forcible." See Liberty Industrial Park Corp. v. Protective Packaging Corp., 71 Misc. 2d 116, 119 (Sup. Ct. Kings Cty. 1972) (hiring of trucks, men, and a garbage company to dispossess defendant did not constitute a forcible entry). A threat of arrest to the tenant if he fails to leave the leased premises may constitute a forcible re-entry. See Lori-Kay Golf v. Lassner, 93 AD2d 857 (2d. Dept. 1983) (reversed on other grounds, 61 NY2d 722); 110-45 Queens Blvd. Garage, Inc., 265 AD2d at 416 (issue of fact as to whether the ouster of the was peaceable or forcible).

Risks of engaging in self-help

By choosing to use self-help instead of relying on a court order, a landlord risks facing a lawsuit from the tenant for wrongful eviction. For this reason alone, courts are justified when they describe summary proceedings as "the most secure method" for a landlord to regain possession of its commercial premises. See Sol De Ibiza, LLC v. Panjo Realty, Inc., 29 Misc. 3d 72, 75 (App. Term, 1st Dept. 2010) (internal quotation omitted).

Real Property Actions and Proceedings Law 853 authorizes a tenant who is kept out of the leased premises "by force or by putting him in fear of personal violence or by unlawful means" to bring an action and pursue treble damages against the wrongful party. Courts have recognized a "legislative intent to allow recovery where no force or threat is employed but an unlawful eviction nevertheless takes place." Lyke v. Anderson, 147 AD2d 18, 24 (2d Dept. 1989) (finding unlawful eviction when landlord removed mobile home from its lot and deposited in a swampy area elsewhere on the property); see also Wheeler Ave. Laundry LLC v. Modern Yonkers Realty LLC, 2017 N.Y. Misc. LEXIS 4736, *15 (Sup. Ct. Westchester Cty. 2017) (questions remained as to whether landlord's misrepresentations about the lease together with other actions constituted unlawful ouster).

Before pursuing a self-help eviction, a landlord must consider the risk of a lawsuit from the dispossessed tenant and the potential for damages. A careful of review of the governing lease is necessary to determine if a self-help eviction is authorized, and whether the benefits outweigh the risks.

Robert P. Yawman III is an associate attorney with the law firm Leclair Korona Cole LLP. His practice includes all levels of litigation from pre-suit matters to appellate practice. His practice focuses on civil matters, including commercial litigation. Rob can be reached at ryawman@leclairkorona.com or through the firm's website at www.leclairkorona.com.

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Publication:Daily Record (Rochester, NY)
Date:Sep 19, 2018
Words:1243
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