Can a landlord re-take premises without first getting a warrant?

Real Estate Weekly,  July 14, 1999  by Richard Claman

• E-mail
• Print
• Link

(The following article is the last in a 14-part series examining the standard Real Estate Board of New York form commercial lease. This series highlights particular clauses in the REBNY lease and how the courts have interpreted them.)

If you have made it so far through our series on these nitty-gritty provisions of the REBNY form commercial leases - and we appreciate all the comments we have received - then you must certainly have asked yourself more than once: wouldn't it be nice if the commercial landlord could just cut-out the Court system, and, if a tenant defaults, just change the locks and remove tenant's property?

If you look at Form Lease [paragraph] 17(2), you might think that you can do this. It says: "If [a notice of termination under the "conditional limitation" clause] shall have been given, and the term shall expire as aforesaid; or if Tenant shall make default in the payment of the rent reserved herein or any item of additional rent herein mentioned or any part of either or in making any other payment herein required, then and in any of such events Owner may without notice, reenter the demised premises either by force or otherwise, and dispossess Tenant by summary proceedings or otherwise, and the legal representatives of Tenant or other occupant of demised premises and remove their effects and hold the premises as if this lease had not been made, and Tenant hereby waives the service of notice of intention to re-enter or to institute legal proceedings to that end." [Emphasis added.]

But you can't, although there are circumstances where there may be a right of self-help. Moreover, this provision tends to cause landlords additional trouble: tenants, seeing this draconian provision, will often seek a modification to require some notice before re-entry; but because this provision refers to summary proceedings, such a modification can give rise to a tenant argument that any summary proceeding also requires this additional predicate notice.

This note, accordingly, will first review the common law and statutory rules relating to self-help, and explain why Lease [paragraph] 17(2) needs to be re-drafted. It will then note the problem created by notice modifications. Third, we will note that [paragraph] 17(2) is important in helping landlords defeat the argument frequently made by tenants that when the landlord re-lets after a tenant prematurely abandons, the landlord is waiving its right to collect the balance of the rent due. Finally, we will suggest principles for re-drafting Lease [paragraph] 17(2).

Rights of Self-Help and Punishments If You Act Wrongly

As a preliminary matter, residential landlords are subject to criminal sanctions in New York City if they use self-help (NYC Admin. Code [section] 26-521). There is no such statute, however, for commercial landlords.

In considering self-help, one must consider both the landlord's theoretical right, and the potential consequences of an adverse judicial determination.

Looking at the "right" side, a landlord never has the right to use force, regardless of what the lease may say. A New York statute, RPAPL [section] 853, prohibits a landlord from re-entering "in a forcible or unlawful manner," and gives the tenant a right to treble damages.

A landlord does, however, have a right of peaceable re-entry. In 110-45 Queens Blvd. Garage, Inc. v. Park Briar Owners, Inc., a cooperative leased-out its garage space. After the last day of the lease, the cooperative sent several representatives to speak to the night-shift garage employees and told them they were supposed to leave - and they did. Is that peaceable? The Civil Court, without an evidentiary hearing, held that the cooperative had acted peaceably. [4/21/97 NYLJ 31 (col. 1) Civ. Ct. Queens Co.] The Appellate Term did not disagree that the landlord had a right to peaceably re-enter - either because the lease term had ended or because under Lease [paragraph] 17(2), there had been a rent default. That Court reversed, however, saying that affidavits by the employees, saying that they had been afraid, raised issues of fact; and

remanded for trial (177 Misc.2d 555, 677 N.Y.S.2d 424). The matter has now been argued before the Second Department.

In short, as a practical matter, a landlord should anticipate that its conduct will undoubtedly be subject to differing factual characterizations.

A key practical question, then, is what is the landlord's penalty if it turns out that the landlord is held to have crossed the line. Certainly it is liable for treble damages. But what if, in the interim, the landlord has relet to a new tenant? Is the old tenant automatically entitled to be restored to possession, even if the old lease by its terms had already expired?

Above and beyond the treble damages penalty, that seems a double punishment of the landlord, and a punishment of the new tenant, disrupting its business by putting it out of possession. Most of the courts that have considered this issue in recent years - including, in an analogous context, the Appellate Division, Second Department - have held that the Court is not required to order re-possession, but may consider, e.g., that a repossession order would be futile (given than the old tenant's lease had already ended), would be disruptive, and would otherwise be inequitable.