by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

LANDLORD/TENANT; EVICTION; "SELF HELP:" A tenant's failure to meet an agreed-upon deadline for paying late rent does not entitle a landlord to change the locks and reenter the apartment without judicial process.

Whalen v. Taylor, 925 P.2d 462 (Mont. 1996).

Although the landlord served the tenant with a three day notice to quit when the tenant failed to pay at the beginning of June, the parties agreed to extend the payment deadline until June 16. When the tenant failed to pay rent by 5:00 p.m. on June 17, the landlord changed the locks.

The tenant prevailed at trial on his claims for possession and damages, and the Montana Supreme Court affirmed, remanding for a determination of additional damages and fees to which the tenant was entitled. The Supreme Court rejected the landlord's claim that the tenant abandoned the property because the tenant had tendered rent, which the landlord refused to accept, on the day he was locked out. As a result, the trial court properly allowed the tenant to recover his choice of treble damages or three months rent, as state statute provides.

The Supreme Court also determined that a waiver of statutory rights in the landlord's form lease violated Montana statue and remanded for an entry of judgment of treble damages against the landlord on that claim as well.

Comment: Montana's emphasis on requiring judicial process to evict is probably the majority rule - certainly in residential tenancies and probably in commercial tenancies as well. Note, however, that although most lawyers are schooled to believe that "self help" eviction is a thing of the past, in fact a number of jurisdictions have authority that permit it, and occasionally lawyers use it. Even where lawful, of course, "self help" eviction is a high risk enterprise. Possession must be taken "peaceably" - whatever that means - and there undoubtedly is responsibility for personal property of the tenant or others that would not arise if the sheriff carried out a "standard" eviction.

The editor recently chatted with Ohio lawyers who said that no one ever would "self help" evict there. But the author found recent cases upholding the remedy in commercial leases that provided for it.

Similarly, there appears to be no prohibition in Missouri commercial leases, and the editor's has seen a trial court decision in Kansas upholding the remedy. But most lawyers in either state would tell their clients it's a high risk enterprise and a summary eviction remedy is best.

Is self help eviction available in your state? Is there any state in which it is a common practice?

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