Photo credit: Got Credit; flickr.com/photos/jakerust/

This post was written by Jeff O’Brien for Simply Residential Property Management Magazine.

I frequently receive calls from clients who own rental properties seeking assistance with regards to tenants who are in default of their lease obligations (such as failing to pay rent). These clients obviously wish to move quickly to resolve the issue(s); however, care must be taken not to engage in “self-help” that not only could hinder attempts to remove the defaulting tenant, but could also result in liability for the landlord relative to the tenant.

Self-help involves the landlord taking the law into his or her own hands to forcibly remove the tenant from the property. While the tenant is in legal possession of the premises under the lease, no other person can occupy or take possession of the premises by force. Minn. Stat. § 504B.281. Minnesota has historically followed the common-law rule that a landlord may rightfully use self-help to retake leased premises from a tenant in possession without incurring liability for wrongful eviction provided two conditions are met: (1) The landlord is legally entitled to possession, such as where a tenant holds over after the lease term or where a tenant breaches a lease containing a reentry clause; and (2) the landlord’s means of reentry are peaceable. Berg v. Wiley, 264 N.W.2d 145, 150 (Minn. 1978), citing Mercil v. Broulette, 66 Minn. 416, 69 N.W. 218 (1896). Under the common-law rule, a tenant who is evicted by his landlord may recover damages for wrongful eviction where the landlord either had no right to possession or where the means used to remove the tenant were forcible, or both. Berg at 150; see also Poppen v. Wadleigh, 235 Minn. 400, 51 N.W.2d 75 (1952); Sweeney v. Meyers, 199 Minn. 21, 270 N.W. 906 (1937); Lobdell v. Keene, 85 Minn. 90, 88 N.W. 426 (1901).

An example of prohibited self-help would be a landlord who, after determining that a tenant has abandoned the property prior to an eviction, changes the locks to the property. While common sense may suggest that this is a reasonable course of action as it would minimize the chances of damage to the property, the landlord would be in violation of Minn. Stat. § 504B.281and liable to the tenant for wrongful eviction. In fact, the Berg case referenced above dealt with this very issue and the Minnesota Supreme Court found for the tenant as to its claim of unlawful eviction.

The only recourse to remove a tenant from the property is to use the legal process of Unlawful Detainer to have a court rule that the tenant is there illegally and ordered to leave. The benefit to using this process is that the tenant is removed by a law enforcement officer if they do not comply, which removes the landlord’s liability in the action.

Also, regardless of whether you think that what you are doing would be considered “peaceable entry”, or if you are not certain of what to do when your tenant defaults, do not use the “DIY” method, as it usually winds up with you being “SOL”. Contact someone knowledgeable about Minnesota landlord-tenant law as to how best to resolve the matter.

Jeffrey C. O’Brien is an attorney with the Minneapolis-based law firm of Lommen Abdo, P.A. voice of the “Legal Minute on Minnesota Home Talk, heard Saturdays on 1500 ESPN, and a Minnesota State Bar Association Board Certified Real Property Specialist. He can be reached at (612) 336-9317 or via email at jobrien@lommen.com.