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. 

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