Tired of Waiting for the Court and the Marshal? Self Help is an Available Remedy in NYC for Commercial Evictions
February 28, 2014
An article by Michelle Maratto Itkowitz
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At the risk of putting myself out of a job (inasmuch as a portion of my practice is commercial landlord and tenant law), this article is about how a commercial landlord can avail itself of Self Help to evict a commercial tenant and avoid going to court and waiting for a warrant. (fn 1)
I start by stating the following definitively: You can never use Self Help against a residential tenant in New York City. (fn2) This article pertains only to commercial evictions.
Next, I will take you through the law of Self Help Evictions, including the very real risks inherent therein. Then, I describe two very different scenarios where Self Help ultimately worked to further our clients’ goals. I conclude by offering a list of practical suggestions.
Part I: Self-Help Eviction
A. Self-Help Eviction In General
The Self Help Doctrine is a remedy available to the landlord in the context of a commercial lease, when a tenant fails to cure its default in paying rent. In order for a commercial landlord to use Self Help, the following four factors must be satisfied:
(1) The subject lease specifically reserves the landlord’s right to re-enter and regain the premises upon tenant’s breach of its obligation to pay rent;
(2) Prior to re-entry, landlord serves upon tenant a valid rent demand;
(3) Re-entry was effected peaceably; and
(4) Tenant is, in fact, in default of its obligation to pay rent. (fn3)
As for the first prong (the reservation of rights in the lease), the following language has been held to be sufficient:
“[I]f Tenant shall make default in the payment of the rent reserved herein … then, and in any of [the] events [specified in paragraph 17 (2)], [Landlord] may without notice, re-enter the demised premises either by force or otherwise and dispossess Tenant by summary proceedings or otherwise, . . . and Tenant hereby waives the service of notice of intention to re-enter or to institute legal proceedings to that end.” (fn 4)
The second prong (service of a valid rent demand) is satisfied if the rent demand “afforded tenant actual notice of the approximate good faith sum of rent allegedly owed.” (fn 5)
The third prong (whether a reentry is “effected peaceably”) is a question of fact that depends on the unique circumstances of each case. The weight of authority suggests that merely changing locks, key codes, etc. constitutes a “peaceable” reentry. (fn 6) More on this in the next section.
The fourth and final prong does not require much explanation – a landlord simply must be sure that the Tenant has indeed breached its obligation to pay rent before using Self Help. In other words, check for clerical errors in the rent ledger before opting for a Self Help Eviction.
B. RPAPL § 853 and Treble Damages for Unlawful Eviction
If, on the other hand, Landlord’s conduct in reentering the premises constitutes a “breach of the peace” or is otherwise “unlawful”, Tenant can bring an action for forcible entry under RPAPL § 853 and seek treble damages against the Landlord. (fn 7)
Real Property Actions and Proceedings Law (“RPAPL”) § 853 states:
“If a person is disseized, ejected, or put out of real property in a forcible or unlawful manner, or, after he has been put out, is held and kept out by force or by putting him in fear of personal violence or by unlawful means, he is entitled to recover treble damages in an action therefor against the wrong-doer.”
Thus, where a landlord, after failing to afford Tenant notice of its default, removed all of Tenant’s possessions, placed a private security guard at the entrance and threatened to call the police if Tenant attempted to reenter the premises, the court found that Tenant had raised triable issues of fact as to whether it suffered damages that could be trebled, notwithstanding the absence of physical force. (fn 8)
Treble damages can be imposed upon “the value of the unexpired term of the lease over and above the rent the lessee must pay under its terms … together with any actual damages flowing directly from the wrongful eviction”. (fn 9) If the tenant signs a lease for an equal or lesser value, there are no damages under this measure. (fn 10) Under New York law, “[i]n order to recover lost profits, a business must have been established and in operation for a definite period of time and calculations based on other similar businesses are too speculative and will not satisfy the [requirement that a] reasonable means of calculating [the amount be provided].” (fn 11)
However, a grant of treble damages is permissive rather than mandatory. (fn 12) And in a recent case where a commercial tenant who had been evicted via Self Help moved for treble damages, the 3rd Department held that “[b]ased on respondent’s apparent good faith in chaining the door to keep out people who were unauthorized to enter the store, petitioners’ apparent acquiescence in this conduct and lease provisions which would have permitted respondent to reenter or terminate the lease had he given proper notice, … an award of treble damages would be inequitable …” The court’s reasoning was that the common law right of Self Help is not abrogated by RPAPL § 853. (fn 13)
Part II: Two Scenarios Where Self Help Eviction Furthered a Client’s Goals (and One Where it Did Not)
A. Scenario: The Doughnut Store (fn 14)
The borough was Manhattan and my client was a high-end office building. Tenant was a Doughnut Store on the lobby level with multiple locations (not a franchise, a family owned business.) The market for doughnuts was not so great apparently, or maybe they were not very good doughnuts. But the store was having trouble. The store started going dark during business hours — a violation of the lease. It became apparent to my client that Tenant was storing doughnuts and other products in the store, and then loading them each day onto a food truck and selling elsewhere. My client’s Class A lobby storefront was turned into a storage place for a food truck business, and a non-paying one at that.
My client had another tenant in mind, and no patience with the doughnut tenant. This is how we handled it.
First, I confirmed that we could meet the first requirement for Self Help, that we had the right language in the lease. We did, the lease said:
If this lease shall terminate as provided in this Article, or if Tenant shall be in default in the payment of Minimum Rent or additional rent when the same become due and payable and such default shall continue for a period of five (5) days after notice by Landlord to Tenant:
(a) Landlord may re enter and resume possession of the Demised Premises and remove all persons and property therefrom either by summary dispossess proceedings or by a suitable action or proceeding, at law or in equity, or otherwise, without being liable for any damages therefor …
Next, the client and I gathered information from the managing agent and the building manager about the situation. Then we gave it some careful thought and determined that Tenant was not in the mood for a fight. Tenant was not successful in the space, was not interested in fighting for the space, and had other locations at which to make money. On the other hand, as long as Tenant was getting away with not paying the rent, it was happy to live out its time in the space until it got evicted. In the normal course of things, even in a default situation where Tenant does not show up in the proceeding, it can take up to three months in the court system. In other words, we analyzed the situation carefully; and Tenant presented a low to medium risk of going to war over a Self Help eviction.
Then I served valid notices of default and then termination. When Tenant failed to respond in any way, we changed the locks over the weekend when no one was there. Then, we sent the following notice to Tenant:
TAKE NOTICE that pursuant to Article 16 of the Lease, Tenant’s breach of its obligation to pay rent, and the Notice of Termination dated September 25, 2012, Landlord has elected to peaceably recover possession of the Premises by changing the locks.
TAKE FURTHER NOTICE that Tenant may make arrangements with Landlord to coordinate the retrieval of Tenant’s property from the Premises.
TAKE FURTHER NOTICE that any response to this Notice should be directed to the below named attorneys for the Landlord.
Tenant contacted me. It wanted its stuff. Here is where an interesting dynamic developed. The building staff was used to being hostile to nonpaying tenants by doing things like demanding pre-payment of charges for the freight elevator for the move out. In this case, I had to repeatedly counsel my client’s staff that, in this case, we needed to be nice and accommodating. We wanted Tenant to avail itself of the elevator, or whatever it needed. We wanted Tenant and its stuff out, without Tenant rushing into court. I actually had to arrange special staff to be there on Sunday to accommodate the move. Paying overtime to the elevator personnel was still cheaper than paying my legal fees, and the Self Help eviction was a big success.
B. Scenario: The Full Floor Publishing Tenant Exercising Self Help Against Subtenant (fn 15)
This next situation did not go as smoothly, but worked out quite nicely for the client in the end.
The matter arose out of an operating agreement pursuant to which the tenant and subtenant occupied a shared workspace in a trendy commercial building. The agreement delineated the terms of the respective parties use of and obligations with respect to the shared space. Our client, the tenant, used Self Help to get the subtenant out of the space.
The subtenant sued the tenant in Supreme Court for conversion of its property and sought damages arising out of what it claimed to be a wrongful eviction. The legal issue at the center of the case was whether or not subtenant was a lessee or a licensee of the space and therefore wrongfully evicted. Tenant countersued, alleging that subtenant was in breach of the agreement and therefore had its license rightfully terminated as a result.
Subtenant initiated a motion for summary judgment early on however, and following oral argument by my office requesting that the stay on discovery be lifted, the suit settled on terms favorable to the tenant.
While it is unclear whether the client saved money on our legal fees by defending a Supreme Court action that was pretty quickly disposed of, as opposed to prosecuting a landlord and tenant action from beginning to end, what is clear is that our client got rid of the subtenant much, much faster than if it had gone to landlord and tenant court, which was intrinsically valuable to it.
C. Scenario: The Live Poultry Store (fn 16)
The one time I recall where Self Help did not work was where my client (without discussing it with me first) attempted to use Self Help against a tenant that had formerly operated a small, illegal live poultry store in the premises. In fact, when the eviction happened, there were no chickens, alive or dead, in the Premises. Rather, the premises had been completed vacated out and only some junk remained.
Of the three scenarios I present in this article, this surely would have been the one where I least anticipated any problem. But in response to my client changing the locks when Tenant was not present, Tenant ran into court, and we were forced to restore Tenant to possession. This case is an example of where the powerful and viperous relationship between the parties had as much to do with the outcome as did the law.
Part III: Practical Advice for Successfully Employing Self Help Eviction
I understand that even the suggestion of dispensing with the judicial process and engaging in Self Help eviction is controversial. And again, I cannot possibly stress strongly enough that Self Help is never a possibility in the residential context.
In the commercial context, however, Self Help is something worth considering. The court system is currently so immensely overburdened. No taxing authority or mortgage bank is interested in hearing a landlord’s excuse for nonpayment of its obligations, even if that excuse is a nonpaying, judgment-proof tenant whose case is moving slowly through the court system as the landlord sits by powerless and pays legal fees. Self Help exists at common law and is still part of our jurisprudence.
The key to the successful use of Self Help, however, is in careful planning and execution.
STEPS TO EFFECTUATING A SUCCESSFUL SELF HELP EVICTION
(1) Analysis of Facts
As I described above in the Doughnut Store Scenario, take extra time to interview everyone who interacts with Tenant, and perhaps even Tenant itself, and perform a methodical risk analysis. Do this analysis in writing and share it with the client. This exercise will help you arrive at a recommendation of whether to proceed with a Self Help Eviction.
Also — a word of caution here on this first step. There are certain businesses that common sense dictates that you simply cannot use Self Help Eviction against. I was recently called upon to begin eviction proceedings against an emergency medical facility. I would never entertain Self Help Eviction for a medical facility of any kind. A hair salon – probably; a pharmacy – absolutely not.
Here are some questions to ask:
(2) Analysis of and Compliance with Lease
Make sure the lease allows Self Help. Also follow the lease exactly if it has any predicates to using Self Help. For example, most leases require Landlord to give Tenant default and termination notices before Self Help can be utilized.
(3) Planning and Coordination with Building Staff
As I described above in the Doughnut Scenario, it is imperative that all individuals on the Client team are working together on a Self Help eviction. For example, it would be awful if after a Self Help Eviction lock change occurred, if Tenant presented itself to building personnel who were unaware of what was going on and let Tenant back in!
(4) Giving of a “Self Help Notice”
What I find strange after the locks are changed is how anti-climactic it is. I also hate waiting around for Tenant to find out about the change by showing up at the space and not being able to get in. Therefore, I invented a “Self Help Eviction Notice”, a sample of which is above in the Doughnut Scenario section. I believe it is better for Tenant to open a pdf of the Notice on their email as opposed to finding out about the lock change at the door of the premises.
(5) How to Change the Locks
This is advice for building managers, who are usually charged with carrying out the actual lock change.
Never change the locks when any person from Tenant is present or likely to show up. Never attempt the eviction alone. Someone must stand at the door in case someone from Tenant arrives, lest that person enter the Premises to find you inside it, thus causing terrible surprise and discomfort to each party. Ideally, your lawyer should send an associate trained in supervising evictions attorney to attend the Self Help Eviction.
Remember that you do not have the benefit of a New York City Marshal at this eviction, who has a great deal of experience in these situations and who would typically inventory the contents of the premises. Therefore, you should briefly look around and make sure that there is nothing irregular about the Premises. If it is a restaurant, there is not a burner on; there are no pets present; no one working in a back room.
If you see anything that makes you uncomfortable – do not change the locks.
Make notes and take some pictures. Get out quickly.
(6) Do Not Do a Move Out Eviction
In general, it is very risky to do a Self Help Eviction as a “move-out eviction”. A move-out eviction is where you hire a specially licensed and bonded company, which handles eviction move-outs, to transport all of Tenant’s possessions from the premises to a warehouse.
This is controversial for a number of reasons. First, if a judge orders the Tenants restored, you have the cost and hassle of moving Tenant back in. Moreover, many commercial tenants have equipment leases, and therefore, there may be several items in the premises that are not owned by Tenant and that can only lawfully be removed by the lender.
After you change the locks, the goal is to facilitate Tenant removing its possessions. Another word of caution here – do not give Tenant the keys and allow them to enter unattended when moving out. If you hand Tenant the keys and allow them back in outside of Landlord’s presence, that is tantamount to restoring Tenant to possession.
(7) Pick Your Spots
If Tenant decides it is going to run into court and attempt to be restored to possession, you have two choices:
(a) Back down quickly, mea culpa, and hand over the keys, thus minimizing damage; or
(b) Get ready to hit Tenant hard and defend the execution of the Self Help eviction. If you followed the above steps, the law is on your side!
Part IV: Conclusion
In conclusion, I repeat for a third time that one must never employ self-help in the residential context.
You may have figured out by now that I do not anticipate Self Help eviction actually putting me out of a job. Rather, I see it as a tool to employ (with my help!) responsibly and carefully, when the opportunity presents itself. When done correctly, Self Help can save legal fees and hassle for both Landlord and Tenant, and it conserves precious judicial resources.
Footnotes
1. As always, my articles are equally of use to landlords and tenants.
2. In New York State, in the context of a residential lease, a landlord is forbidden from resorting to self help under any circumstances and can be subject to compensatory, punitive, and treble damages. See RPAPL § 853; Romanello v. Hirschfeld, 98 A.D.2d 657, 658 (1st Dep’t 1983).
3. See Sol De Ibiza, LLC v Panjo Realty, Inc., 29 Misc 3d 72, 75 (App. Term 1st Dep’t 2010).
4. Id.; see also Matter of Jovana Spaghetti House Inc. v Heritage Co. of Massena, 189 A.D.2d 1041, 1042 (3d Dep’t 1993) (“[F]ail[ure] to pay any installment of … percentage or additional rent or any part thereof … for [10] days after receipt of written notice from [respondent], [respondent] shall have the right to immediately declare [the] Lease terminated … [and] immediately or at any time thereafter re-enter the Premises and remove [petitioner], its agents, employees
[or]
licensees … by any suitable action or proceeding at law or otherwise.”).
5. Sol De Ibiza, 29 Misc.3d at 76.
6. See Jovana, 189 A.D.2d at 1041-42 (holding that re-entry was peaceable where landlord, after determining that nobody was present, padlocked the doors to the premises and placed a temporary barricade in front of the main entrance); see also Liberty Indus. Park Corp. v Protective Packaging Corp., 71 Misc.2d 116, 119 (Sup. Ct. Kings Co. 1972) (“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.”)
7. See Carter v. Andriani, 84 A.D.2d 513, 514 (1st Dep’t 1981) (“The obvious purpose of prohibiting eviction of a tenant by force is to prevent landlords from taking the law into their own hands and breaching the peace.”)
8. See O’Hara v. Bishop, 256 A.D.2d 983, 984 (3d Dep’t 1998).
9. N. Main St. Bagel Corp. v. Duncan, 37 A.D.3d 785, 786 (2d. Dep’t 2007).
10. See id. “Damages for the removal, destruction or discarding of property in the course of an unlawful eviction are [also] included under RPAPL § 853”. H & P Research, Inc. v. Liza Realty Corp., 943 F.Supp 328, 330 (S.D.N.Y. 1996) (awarding treble damages of $440,000). In addition, lost profits may be an element of recovery in a wrongful eviction action, but they must be proven with sufficient certainty and not be speculative. Randall-Smith, Inc. v. 43rd St. Estates Corp., 17 N.Y.2d 99, 105-06 (1966).
11. Mehta v. New York City Dept. of Consumer Affairs, 162 A.D.2d 236, 237 (1st Dep’t 1990).
12. See Lyke v. Anderson, 147 A.D.2d 18, 23 (2d. Dep’t 1989).
13. See Lee v Park, 16 A.D.3d 986, 989 (3d. Dep’t 2005); see also Liberty Indus. Park Corp. v. Protective Packaging Corp., 71 Misc. 2d 116, 335 N.Y.S.2d 333 (Sup 1972), order aff’d, 43 A.D.2d 1020, 351 N.Y.S.2d 944 (2d. Dep’t 1974) (“Under common law, when a tenant fails to vacate leased property, after termination of the tenancy, the landlord may re-enter the premises peaceably and evict the tenant, or, if he cannot do so, he may maintain an ejectment action …. The common-law right of re-entry is not abrogated by the statutory remedy of summary proceedings[.]”)
14. It was not a doughnut store really. It was a different type of restaurant. The foods have been changed to protect the innocent.
15. The company in question was not a publishing company; I changed the description to protect this client’s privacy.
16. In this case, it really WAS a live poultry store.
