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Understanding Landlords' 'Self-Help' Rights

By John G. Kelly

“Self-help,” in a leasing context, typically refers to the landlord's traditional remedy of locking out the defaulting tenant and taking back the premises without going through the judicial system. Historically, under the common law, a landlord was free to choose its remedies against a defaulting tenant with few limitations, 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 with 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: 1) the exposure for significant liability to the tenant if the tenant has a valid defense to the alleged default; 2) the availability of summary ejectment proceedings; and 3) the often correct perception that courts take a dim or outright hostile view toward self-help. Further, in the minority of states that still permit a landlord to exercise self-help, the remedy is often limited to commercial landlords, as residential tenants are afforded much greater protection. For the commercial landlord or tenant, this article focuses on the widely differing treatment of self-help ' using the respective laws in the neighboring jurisdictions of Maryland, Virginia and the District of Columbia as illustrative of these differences.

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