Daily Development for Friday, August 10, 2007
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
LANDLORD/TENANT; EVICTION; WRONGFUL EVICTION: Where lease not lawfully terminated, landlord’s changing locks and refusing the tenant a key amounts to a wrongful action, even where tenant leaves the place open to vandals with all locks removed. Landlord may change locks, but must give tenant a key.
Hinton v. Sealander Brokerage Co., 917 A.2d 95 (D.C. 2007)
Tenant sued her landlord for locking her out of her house before her lease ended and before she was able to remove all of her belongings. Landlord responded that it had changed the locks because it had appeared that the tenant had abandoned and damaged the property. Landlord countersued the tenant for full holdover rent throughout the entire time it had to keep the tenant's belongings in storage before she finally got them.
The trial court, which heard the witnesses and made judgments on the factual issues, entered judgment for the landlord. Therefore, the appeals court tended to accept Landlord’s version of the story, as follows:
Tenant paid rent through September 30. Although Tenant claimed that she had notified landlord that she was leaving in September, Landlord denied this (and the trial court apparently agreed with Landlord). According the Landlord, it got notice from a neighbor of the premises that it was “open and unsecured.” Arriving on September 26, landlord discovered that “[i]t looked like someone had abandoned it, left it, and that somebody was ransaking. . . Windows were broken, doors had been torn off the hinges[;]. . . it looked like someone was trying to, you know, maliciously damage the place.” Landlord identified that there were “many items” of personal property in the place “in various states of disarray.” He discovered that, although he could lock the front door with a small hand lock, all the other locks had been removed, including on the back door and the front gate, and all the dead bolt locks. He submitted photos of the property as he found it as exhibits at the trial.
The landlord brought in a locksmith on September 29th, secured the premises, and left a note to the tenant on the door containing a phone number for the tenant to call in order to gain entry for removal of her belongings. The landlord also left a message for tenant with what it believed to be her new landlord, but had no other way to contact Tenant. The parties thereafter were in contact, with Landlord offering from time to time to accompany Tenant and Tenant insisting that she had a right to a key so she could remove her belongings at her own convenience.
Despite all of this, the D.C. Court of Appeals reversed the judgment for Landlord, holding that while most of the landlord's actions were reasonable under the circumstances, it is unlawful to terminate possession before the end of the term, and there is no “self help” eviction remedy in D.C. Tenant admittedly had paid rent through September, and the proper method for terminating a residential lease for breach, such as for waste, is through a court action.
The court held that D.C. Municipal Code imposes a duty on landlord to maintain the property as locked and secure. Thus, the landlord was within its rights in changing the locks. The lease indicated that vacating the premises was an event of default, but required a 30 day notice before Landlord could terminate for such a breach. Nonetheless, the court held that Landlord’s duty under the municipal code “trumped” the lease, and consequently Landlord had the right to change the locks and did not by doing so “evict” the tenant.
But when Tenant responded to the lock changing by asserting vociferously that she still had the right to a key through the end of the lease term, the court ruled, Landlord had no choice but to give her a key, as she had the right to possession. Fortunately for Landlord, the court ruled that Tenant’s actions and statements established beyond doubt that she intended that the lease would end on September 30. Therefore, landlord’s liability for wrongful withholding of possession amounted only to September 29, when Tenant demanded a key, and September 30.
Landlord counterclaimed for the cost of storage of Tenant’s goods, first on the premises and later in a storage locker. Note that the court interpreted Tenant’s conduct as terminating the lease as of October 1, so from then on her goods were on Landlord’s premises. Thus she had no right to a key after October 1. The trial court had awarded Landlord $700 per month for the ten months the goods remained on the premises, plus storage costs thereafter.
The court held that, although Landlord had the right to take possession of the premises, and Tenant, by leaving her goods there after September 30, was trespassing, Landlord was subject to the “avoidable consequences” doctrine in the determination of its damages. Although the court appears to view this as separate from the concept of “mitigation of damages” where the landlord lawfully terminates a lease, the court later used the mitigation term to describe the doctrine. The court reversed the $7000 judgment to Landlord and remanded to the trial court to ascertain whether Landlord’s decision to leave the goods on the premises and treat it as “unrentable” for seven months was reasonable, or whether Landlord ought to have removed the goods to storage on or off premises so that it could relet the place sooner.
The court did uphold a damages award for the $800 cost of removing and storing the goods - as the landlord ultimately did. It is likely that this far exceeds any wrongful eviction claim the tenant has against landlord, and also likely that it pales in comparison to the landlord’s attorney’s fees and further likely that none of the award is collectible.
Comment 1: The tenant appeared in pro per and the court suggested that the trial court assist Tenant in finding some legal advice, perhaps through a law school internship program.
Comment 2: Given the well established rule in D.C. against “self help” eviction, the case is probably right. It seemed clear, at least when Tenant started kicking and screaming, that she hadn’t abandoned. Landlord is extremely fortunate that the court construed the lease as having terminated at the end of September in any event. Otherwise, Tenant’s damages claim could have been much greater.
Comment 3: Indeed, this case was a grand waste of time and money. Had Tenant retained legal representation, her lawyer might have talked some sense into her. But note that the outcome here is that, when a tenant is acting obstinate, such as here, Landlord is expected to mitigate its damages by taking further steps to remove and store Tenant’s goods, even though it is highly unlikely that any such costs in fact represent a collectible claim.
Items reported here and in the ABA publications
are for general information purposes only and
should not be relied upon in the course of
representation or in the forming of decisions in
legal matters. The same is true of all
commentary provided by contributors to the DIRT
list. Accuracy of data and opinions expressed
are the sole responsibility of the DIRT editor
and are in no sense the publication of the ABA.
Parties posting messages to DIRT are posting to
source that is readily accessible by members of
the general public, and should take that fact
into account in evaluating confidentiality
DIRT is an internet discussion group for serious
real estate professionals. Message volume varies,
but commonly runs 5 to 15 messages per work day.
Daily Developments are posted every work day.
subscribe, send the message
subscribe Dirt [your name]
To cancel your subscription, send the message
signoff DIRT to the address:
for information on other commands, send the
Help to the listserv address.
DIRT has an alternate, more extensive coverage that includes
commercial and general real estate matters but also focuses specifically upon
residential real estate matters. Because real estate brokers generally find
this service more valuable, it is named “BrokerDIRT.” But residential
specialist attorneys, title insurers, lenders and others interested in the
residential market will want to subscribe to this alternative list. If you
subscribe to BrokerDIRT, it is not necessary also to subscribe to DIRT, as
BrokerDIRT carries all DIRT traffic in addition to the residential discussions.
To subscribe to BrokerDIRT, send the message
subscribe BrokerDIRT [your name]
To cancel your subscription to BrokerDIRT, send the
signoff BrokerDIRT to the address:
DIRT is a service of the American Bar
Section on Real Property, Probate & Trust Law and
the University of Missouri, Kansas City, School
of Law. Daily Developments are copyrighted by
Patrick A. Randolph, Jr., Professor of Law, UMKC
School of Law, but Professor Randolph grants
permission for copying or distribution of Daily
Developments for educational purposes, including
professional continuing education, provided that
no charge is imposed for such distribution and
that appropriate credit is given to Professor
Randolph, DIRT, and its sponsors.
DIRT has a WebPage at:
Your e-mail address will only be used within the ABA and its entities. We do not sell or rent e-mail addresses to anyone outside the ABA.
To change your e-mail address or remove your name from any future general distribution e-mails you can call us at 1-800-285-2221, or write to: American Bar Association, Service Center, 321 N Clark Street, Floor 16, Chicago, IL 60610
If you are an ABA member, log in to the ABA Web site at https://e2k.exchange.umkc.edu/exchweb/bin/redir.asp?URL=http://www.abanet.org/abanet/common/MyABA/home.cfm to edit your member profile. Otherwise, complete the form located at https://e2k.exchange.umkc.edu/exchweb/bin/redir.asp?URL=https://www.abanet.org/members/join/coa2.html
To review our privacy statement, go to https://e2k.exchange.umkc.edu/exchweb/bin/redir.asp?URL=http://www.abanet.org/privacy_statement.html.
If you have any problems, please contact the list owner