Here's a nice gloomy case for landlords on Friday 13:
Daily Development for Friday, July 13, 2001 by: Patrick A.
Randolph, Jr.
By: Patrick A.
Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu
LANDLORD/TENANT; TERMINATION; ABANDONMENT:
Abandonment requires voluntary relinquishment of premises by lessee with intent to terminate.
Girgis v. Macaluso Realty Company, Inc., 778 So.2d 1210 (La.App. 4 Cir. 2001)
Landlord leased a medical clinic to Doctor. In early late 1995, while still bound by the lease, Doctor relocated her practice, but continued to store medical equipment and supplies on the leased premises. She ceased paying rent in January of 1996, but send Landlord a letter seeking a reduction in rent, as she was only using the premises for storage. This letter also mentioned that a local medical school was interested in assuming the lease, and apparently taking the equipment and supplies as well.
In May of 1996, Landlord escorted representatives of the medical school to the premises. It was not clear whether Landlord was doing this at the request of Doctor, or even with her knowledge. When Landlord arrived at the premises, it discovered that Doctor had changed the locks. Landlord had no key, but nevertheless was able to effect entry to the premises and showed them to the school representatives. After that visit, Landlord had the locks changed and did not supply Doctor with a key. The medical school eventually decided not to take over the premises, and landlord sued Doctor for back rent from January of 1996, attempting to attach a landlord's lien to Doctor's property.
The Louisiana Court of Appeals noted that in Louisiana self help eviction is not permitted. An eviction action is required. The only exception is that the landlord can retake possession of the premises without judicial action when the tenant has abandoned. Abandonment, however, is a question of tenant's intent. "Abandonment of a leased premise requires voluntary relinquishment of the premises by the lessee with the intent to terminate without vesting ownership in another."
Here, although the Doctor had not paid rent for five months, she continued to store her equipment and supplies at the premises and in fact had communicated to the landlord a desire that the medical school take over her rights. This would appear to eliminate any suggestion that the Doctor's physical absence from the premises, or even her failure to pay rent, constituted a "voluntary relinquishment."
Doctor obtained damages for wrongful eviction and for the value of her equipment, which landlord had converted by seizing the premises without an eviction action. Landlord was denied a landlord's lien in Doctor's personal property because it constituted "tools of the trade," not appropriately a subject of a Louisiana landlord's lien. This was true even though the Doctor was not then using the equipment in her trade. It was sufficient that the equipment was suitable for such use. The court reduced her recovery by the back rent and attorney's fees collectible by landlord under the lease.
Comment: Most courts would have resolved this question in the same way. Seizure of the premises without a clear manifestation of abandonment is always dangerous. A few jurisdictions recognize (or may recognize no recent cases) self help eviction, which could be used even if there is no abandonment, but even in these cases it is very easy to slip into committing a conversion when one seizes control of the premises with the tenant's property on it.
The editor always recommends that the landlord send an "estoppel letter" to the tenant (or to the tenant's last known address), informing the tenant that the landlord will deem nonpayment of rent and physical absence from the premises for a significant time an abandonment unless the tenant responds otherwise. And, of course, if there is any uncertainty that abandonment has occurred, use a summary possession action. It won't take long, and a wrongful eviction action is no fun at all
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