Red Tape

by Gary Franklin Attorney at Law

Lock ’em out or go to court?

“Self-help” is a term often used to describe a landlord’s unilateral action to remedy a lease default without the assistance of the law. Commercial leases, as a matter of course, generally contain self-help language allowing a landlord to re-enter leased premises and remove a tenant upon default without formal demand, notice, or court order. Relying on this language, however, to evict a commercial tenant without a court order is risky business.

Take an example where a commercial tenant defaults on a lease by failing to pay rent and properly maintain the premises. Can the landlord simply change the locks and dispossess the tenant? As a general rule, the answer will be no.

Although the availability of self-help dispossession in a commercial context is not entirely settled in Vermont, the trend of decisions is to follow the modern rule requiring a landlord to pursue the remedies provided by law when the tenant refuses to surrender leased premises voluntarily. Thus, we look to Vermont law on ejectments and entry and detainer.

A landlord’s remedy to recover possession of leased premises lies in Vermont’s ejectment statute, 12 V.S.A. § 4761 et seq. Courts describe the ejectment statute as intended to provide a streamlined process to pursue an eviction. As a word of caution, when sued in ejectment, a tenant may prevent forfeiture of the lease by simply paying the rent due at any time prior to final judgment. Accordingly, as plainly stated by the Vermont Supreme Court, the mere failure to pay rent when due does not result in forfeiture of a lease. A court order must be obtained and self-help is not permitted.

Similarly, the entry and detainer statute prohibits a person from entry into lands “except where entry is given by law.” Entry cannot be made “with strong hand nor with multitude of people, but only in a peaceable manner.” The statutory provisions are intended to prevent parties from taking the law into their own hands in circumstances that are likely to result in a breach of peace.

A landlord is not permitted to be the judge of its own rights in adversely held property. Allowing a landlord to be the judge of its own rights and resort to self-help would ignore the statutory directive that entry be “given by law.” As in other modern jurisdictions, in Vermont the landlord is wise to resort to judicial process — that is, seek a legal remedy for re-entry.

The situation may be different where a lease expressly contains the right to self-help in the event of a default. Courts have recognized that parties may contractually agree to self-help, essentially satisfying the statutory prohibition against entry into land except when “given by law.” Naturally, if the lease contains a self-help provision and if there is no dispute as to the default and right of repossession, the landlord may proceed with an eviction without court intervention.

However, even armed with a self-help lease provision, a landlord should not attempt to repossess leased property forcibly if a dispute arises. Notably, courts have held that changing the locks on a business constitutes a forcible breach of the peace. To constitute force as contemplated by entry and detainer statutes, it is not necessary that violence be used. Where a dispute has arisen over whether a tenant is in default, a landlord takes great risk in entering the property without a court order. Not only does the law frown on such action, a dispossessed commercial tenant is likely to suffer significant business losses that you, as landlord, could become liable for should the tenant prevail in the dispute.

If the landlord’s case is strong, affirmative relief can be achieved on an expedited basis through a preliminary injunction proceeding, which can be triggered on the same day that a complaint is filed. In a preliminary proceeding, a court may grant the landlord possession of the leased premises if it finds that the landlord is likely to ultimately prevail in the litigation. If a landlord’s right to reentry cannot be justified through the standards of a preliminary injunction proceeding, then certainly the landlord should not be allowed to take matters into his or her own hands. •

Gary Franklin is a shareholder and director of Primmer, Piper, Eggleston, Cramer PC, and is a commercial litigator in Vermont.