Lockout Is Illegal Because Tenant Didn't Abandon the Property

November 29, 2022

What Happened: The tenant was behind on its rent, and the restaurant was closed. So, the landlord assumed that the property was abandoned and exercised its lease right to reenter and change the locks. It then sued the tenant for unpaid rent and late charges. The tenant denied that it had abandoned the property and countersued the landlord for illegal lockout and wrongful possession of the personal property inside the restaurant. Finding the landlord more credible, the court dismissed the tenant’s counterclaims and ordered it to pay $76,567 in back rent and damages.

What Happened: The tenant was behind on its rent, and the restaurant was closed. So, the landlord assumed that the property was abandoned and exercised its lease right to reenter and change the locks. It then sued the tenant for unpaid rent and late charges. The tenant denied that it had abandoned the property and countersued the landlord for illegal lockout and wrongful possession of the personal property inside the restaurant. Finding the landlord more credible, the court dismissed the tenant’s counterclaims and ordered it to pay $76,567 in back rent and damages. The tenant appealed.

Ruling: In a fairly unusual move, the New York appeals court reversed the ruling after finding that the evidence didn’t support the finding that the tenant had abandoned the premises and its business.

Reasoning: The landlord’s only evidence of abandonment was of having driven by the restaurant “several times” and observing it was closed, coupled with the fact that the tenant was in arrears on the rent. By contrast, the tenant provided several photographs of the premises depicting equipment, furniture, powered-on televisions, liquor bottles on display at the bar, and other property supporting its story that the restaurant was operating the day before the lockout. And because the property wasn’t abandoned, the landlord wasn’t allowed to reenter under the reentry clause.

  • Patton v. Modern Asian, Inc., 2022 N.Y. App. Div. LEXIS 5066, 2022 NY Slip Op 05192

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