Self-Help. Ok or Not? Commercial Property

Self-Help. Ok or Not? Commercial Property
“Self-help,” in a leasing context, typically refers to the landlord’s historical remedy of locking out a defaulting tenant and obtaining possession of the premises without going through judicial procedures. Traditionally under the common law, a landlord was subject to few limitations in choosing its remedies against a defaulting tenant, including the liberal use of self-help.
However, modern jurisprudence provides tenants with much greater protection from eviction and also seeks to prevent possible violent landlord-tenant confrontations. Therefore, the majority of states have now abolished the traditional rule of self-help and permit landlords to evict tenants only through court proceedings. In connection with the move away from self-help, most states have established summary eviction proceedings, which in theory provide landlords a more efficient and expedient method of retaking possession than traditional civil litigation.
Even with respect to those states that continue to recognize a landlord’s right to self-help, many attorneys are very reluctant to recommend this remedy for their landlord clients given (i) the exposure for significant liability to the tenant if the tenant has a valid defense to the alleged default, (ii) the availability of summary ejectment proceedings and (iii) the often correct perception that courts take a dim or outright hostile view towards self-help.
Note further, that in the minority of states that still permit a landlord to exercise self-help, for the most part this remedy is expressly limited to commercial landlords with residential tenants already being afforded much greater protection. For the commercial landlord or tenant operating in the District of Columbia, Virginia and Maryland, this article will focus on the widely differing treatment of self-help under the respective laws of these neighboring jurisdictions. Maryland is similar to Virginia in the approach to self-help, but Maryland courts have made very clear that they discourage the use of self-help and would prefer landlords exercise their judicial remedies. The lease must be clear that re-entry is an available remedy for the landlord without an express prohibition against self-help. The tenant must also be in default under the lease beyond any applicable notice and cure period.
Finally, the retaking of possession by the landlord must be peaceful. Note that a residential landlord in Maryland may never employ self-help, but only pursue eviction through the judicial process.
The leading Maryland case on this subject remains K&K Management, Inc. v. Lee, 316 Md. 137 (1989), where the Court of Appeals of Maryland makes clear that re-entry is a proper remedy after a breach of a commercial lease, and that it is not necessary for the landlord to resort to legal process provided the repossession can be effected peacefully.
The court in K&K Management provides, however, that “(w)e do not encourage resort to self-help, and, for all of the practical reasons which the instant action makes abundantly clear, the Bar usually counsels against it.”
Because of Maryland’s stated preference for the judicial process and discouragement of self-help, the commercial landlord choosing to move ahead with self-help must avoid any possible disturbance of the peace, no matter how trivial.