Berg ran a restaurant in a building that he leased from
The lease had a clause that Berg would not make any
changes to the building's structure without written permission from Berg.
The lease also had a clause that the restaurant would be
run in a lawful manner.
The lease also said that if Berg breached a clause of the
lease, Wiley could retake possession of the building and evict Berg.
Berg started to remodel the kitchen without getting
written permission from Wiley. In addition, the restaurant failed a
Wiley and the health department gave Berg two weeks to
clean the place up. After two weeks, Berg hung a sign in the window that
said 'closed for remodeling'. Wiley changed the locks and barred Berg from
entering the property. Berg sued for wrongful eviction.
Berg sued for lost profits, damage to chattels and
Wiley argued the affirmative defense of abandonment
and countersued for damages to his property.
The Trial Court found for Berg on the wrongful
eviction claim and awarded $31k for lost profits and $3k for damage to
chattels. Wiley appealed.
The Appellate Court affirmed.
The Appellate Court found that Berg did not abandon
The Court felt that Berg was just closing to remodel,
not going out of business.
The Court also found that Wiley's repossession
of the property was wrongful.
A landlord may use self-help to retake possession
of a leased property as long as:
The landlord is legally entitled to take possession.
The landlord does it peaceably.
The Court found that Wiley did not take possession
The Court defined non-peaceable as anything that
could possibly lead to a confrontation. They construed the law so
narrowly that pretty much the only way a repossession could be peaceable
was if the tenant had completely abandoned the property.
Basically, the Court was saying that if there is a
dispute with a lease, the landlord should not take the law into their own
hands and lock out the tenant. They should go to court and get a court
order to do so.
"The only lawful means to dispossess a tenant who
has not abandoned nor voluntarily surrendered but who claims possession
adversely to a landlord's claim of breach of a written lease is by resort
to the judicial process."
In the past, landlords had to resort to doing it
themselves (aka self-help) because the judicial process for
kicking someone out (aka ejectment) was slow and cumbersome. But
modern laws have attempted to make a summary proceeding to eject a
deadbeat tenant relatively quick and straightforward.