Self-help for Commercial Landlords
| Jurisdiction | Colorado,United States |
| Citation | Vol. 03 No. 1990 Pg. 479 |
| Pages | 479 |
| Publication year | 1990 |
1990, March, Pg. 479. Self-Help for Commercial Landlords
The legal term, "self-help," refers to a landlord's method of regaining possession of leased property without judicial process after a tenant defaults. A majority of states, including Colorado,(fn1) have enacted forcible entry and detainer statutes to give a tenant recourse against a landlord that takes possession by force. Before these statutes were enacted, tenants had little recourse because landlords entitled to possession were not liable for trespass after reentry. Since their enactment, a minority of states (not including Colorado) have abolished self-help by statute.(fn2)
The states which prohibit self-help in their statutes or in judicial interpretations of those statutes have split on whether self-help is prohibited only in residential leases or in commercial leases as well.(fn3) Colorado courts have allowed residential self-help if effected peaceably; Colorado case law further suggests that this right is extended to commercial landlords. This article provides background on court rulings nationwide and on precedent-setting cases in Colorado.
American jurisdictions are not unanimous in their approach to self-help for residential or commercial landlords. Some follow the current English view that the landlord is privileged to enter on its land and use reasonable force, if necessary, to regain possession without being civilly liable.(fn4) Others grant a landlord the right of reentry only if it can do so peaceably.(fn5) Some jurisdictions allow self-help only if the tenant has abandoned or voluntarily surrendered the premises.(fn6) Still others have expressly rejected the common law right of reentry and require the landlord to resort to the courts to dispossess a tenant.(fn7)
Concerning commercial leases, examples of the strictest approach (which rejects self-help) can be found in Oklahoma and District of Columbia decisions. In Ramirez v. Baran,(fn8) the Oklahoma Supreme Court found that changing the locks on the tenant's business and, thus, retaking possession against the tenant's will constituted forcible entry and wrongful detainer. In Simpson v. Lee,(fn9) the District of Columbia Court of Appeals found that Congress had abolished the common law right of self-help when it provided a statutory summary procedure. The Simpson court rejected the argument that the landlord's reentry was lawful because a lease provision allowed reentry on default for non-payment of rent.
Courts in several states have distinguished between self-help in residential and commercial leases.(fn10) In two Ohio cases, separate county courts confronted the breadth of that state's statute(fn11) concerning commercial self-help. Both Craig Wrecking v. S. G. Loewendick (fn12) and Northfield Park Assoc. v. Northeast Ohio Harness(fn13) involved commercial leases that allowed the landlord to reenter and resume possession of its premises on default of the tenant. The Cuyahoga and Franklin County Courts of Appeal held that the statute was a bar to self-help only in the area of residential leases. Because the Ohio legislature has been silent as to commercial leases, the courts found that the provisions for reentry contained in the leases were not against public policy. Thus, these provisions could be enforced.(fn14) Further, because the landlord had a right to reenter, the tenant was not entitled to possession and could not complain that injury to the premises caused damage to its business.(fn15)
From a public policy standpoint, courts in jurisdictions permitting self-help have found that forfeiture of a commercial lease is not as personally or psychologically threatening...
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