Your tenant is several months behind on rental payments. In search of options, you flip to the section of the lease addressing defaults and remedies. Lo and behold, there it is in black and white:
Following an event of a default: Landlord may change or alter the locks and remove all of Tenant’s property from the Premises and store the same in a public warehouse or elsewhere at the cost of, and for the account of, Tenant, without becoming liable for any loss or damage which may be occasioned thereby.
Simple enough, right?
Not so fast. While some states may allow a commercial landlord to exercise “self-help,” doing so in Georgia involves significant risks. Clients frequently ask me about the legality of changing the locks to the premises and putting the tenant’s property out on the street. My standard response is that, while doing so may be legal, it is rarely advisable. Only in very limited circumstances would I recommend that a commercial landlord lock the tenant out of the premises.
In Georgia, the filing of a statutory dispossessory (i.e., eviction) action is the exclusive procedure by which a landlord may legally evict a tenant. If a landlord elects to forgo this statutory procedure, it may be held liable for wrongful eviction and trespass, including the prospect of a judgment for punitive damages.
Even where a tenant is clearly in default, there are risks associated with utilizing self-help. For example, because the eviction process is statutory in nature, a landlord must comply with certain requirements, several of which courts will construe strictly. Thus, the failure to comply with the statutory mandates may invalidate an eviction action altogether, even where there is no dispute regarding the tenant’s default. Moreover, although a tenant may appear to have vacated the premises, one must not discount the possibility that a dishonest tenant will claim to have left valuable property behind.
Filing a dispossessory action, obtaining a writ of possession, and conducting a legal eviction under the supervision of a local law enforcement officer virtually eliminates the risks associated with the foregoing examples. Complying with the statutory process establishes an insurance policy of sorts against a claim for wrongful eviction.
But what about the limited situations in which self-help is acceptable, if not advisable? In my experience, those scenarios involve a tenant who has clearly (1) abandoned the premises; and (2) removed all personal property of value. Even in these situations, however, I recommend securing written confirmation from the tenant, if possible, that it has vacated the premises and consents to the landlord changing the locks. Further, when entering the premises for the purpose of retaking possession, I advise making a photographic and/or video record for the preservation of evidence to prove that the tenant left nothing of value behind. Short of these narrow exceptions, I advise pursuing a formal eviction action to obtain a writ of possession, even if doing so is more time-consuming and expensive than self-help.
No matter what your lease says, there are inherent risks for landlords electing to utilize self-help. In most cases, these risks — including the specter of an award of punitive damages — outweigh the potential benefits of simply changing the locks and disposing of the tenant’s property. Following the eviction procedures prescribed by the legislature will insulate a commercial landlord from unnecessary and avoidable peril.