When Can a Landlord Lockout a Tenant?

Landlords often ask us when it is safe to change the locks on an apartment. Most landlords are aware that it is illegal to lockout tenants on their own. In fact, in 2006 the Forcible Entry and Detainer Act was amended to include criminal penalties for landlords who do so. However, while the Forcible Entry and Detainer Act sounds like good public policy, the decision of whether or not to change the locks is not always so easy in practice.

While our firm has been engaged in the filing of more than 9,000 evictions since 2002, we must acknowledge that in the vast majority of instances, tenants vacate their apartments voluntarily and without the need for any eviction. In most cases, the tenants will return the keys to the landlord or perhaps send a letter to the landlord, advising the landlord that the tenant has surrendered possession of the rented premises.

However, sometimes the tenant simply leaves, and the landlord relies on the assumption that the tenant has no intention of returning to the rented premises. Very often, the landlord’s belief is based on good evidence, such as the tenant removing all of his or her belongings from the premises, or providing the landlord with a forwarding address. Most of the time, the landlord’s assumptions are correct. However, on rare occasions, the landlord sometimes guesses wrong.

In one instance, a landlord observed that the tenant had removed most of her belongings from the apartment, and stopped paying her rent. The tenant had also vacated the apartment and did not appear to have any intention of returning. After two months, the landlord disposed of the tenant’s belongings, and re-rented the apartment to someone else. Shortly thereafter, the original tenant did return. She had apparently been out of state, receiving cancer treatments, and she was understandably upset that her apartment was re-rented to someone else, and that her belongings had been discarded.

The moral of the story is that if a landlord is going to “guess” the tenant’s intentions, the landlord does so at his or her own peril. Likewise, while it would be naïve to think that most landlords in a similar situation would not have made the same disastrous guess, landlords need to be aware of the repercussions of guessing wrong and decide accordingly.

Absent a definitive action by the tenant, surrendering possession to the rented premises, the Landlord may not retake possession unless the tenant is properly evicted and locked out by a Special Civil Part Officer. Furthermore, even after a lockout occurs, the landlord should be reminded that the tenant has up to 10 full days to apply to the Court for a Hardship Stay, and therefore, landlords should avoid re-renting the apartment to another tenant for 10 full days after the lockout. Similarly, even after a lockout, the landlord may not dispose of a tenant’s belongings until the tenant is provided with a minimum of 30 days notice of the tenant’s right to claim the belongings. Finally, we note that the turning off of utilities (e.g.; electric, gas, water) while the tenant remains in possession is deemed to also be a violation of the Forcible Entry and Detainer Act.

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