Kicking out Bad Tenants - a Loophole?

I received the following question after one of my earlier posts about dealing with tenants and lease-breaking:

This is off topic and I know it may vary from state to state but have you ever encountered a situation where you have a bad tenant who is late or owes you rent, you're trying to evict them, and they lock themselves out. By law, you are not legally allowed to lock your tenants out but are you obligated to open their doors too? I know that most if not all landlord usually charge a fee for having to come out and unlock a tenant's door for any reason and this also adds to the fact that they already owe you rent and you're trying to evict them. So basically I want to know if you guys have been in a similar situation or know of anything like this and whether or not you can refuse to unlock the door and have them pay a locksmith to come out and unlock it for themselves or do you have to unlock it for them? I mean legally you are not changing the locks or locking them out yourself...

The core issue at hand is the "lock out". It's illegal in almost every state to lock or freeze out a tenant, no matter whether they've complied with the terms of the lease or not. For example, if a tenant stops paying you rent, you are not allowed to change the locks to prevent the tenant from entering the property (Texas law actually allows you to change the locks, but the landlord must make a set of keys available to the tenants at any time, regardless of whether rent is paid).

Similarly, a landlord cannot cut off utilities (like heat, for example) to make the property essentially uninhabitable. I would assume that cutting off services such as cable TV or internet would be allowed by the court, though I do not know of any precedence. But electricity, water and gas are certainly protected.

These laws vary by state, but most are quite similar. For example Virginia's law § 55-248.26 states:

If the landlord unlawfully removes or excludes the tenant from the premises or willfully diminishes services to the tenant by interrupting or causing the interruption of gas, water or other essential service to the tenant, the tenant may recover possession or terminate the rental agreement and, in either case, recover the actual damages sustained by him and a reasonable attorney's fee.

The question raised by the commenter is, what happens if the tenant locks themselves out of the property? Are you required by law to provide a new key for entry? Is that essentially a loophole around the law?

To be perfectly honest, I haven't found any decisive evidence on this situation. I've seen it repeatedly mentioned that in the case of an illegal lockout, a tenant is advised to alert the police and then break into the property, causing minimal damage. In addition, if I were arguing the tenant's case, I would argue that not providing copies of the keys constitutes "unlawfully excluding the tenant from the premises".

I think the bottom line is that if a tenant is paying rent on time and the landlord refuses to replace a lost key, that tenant would certainly have grounds to sue. After all, they have no access to the property that they are paying for. And the law makes it relatively clear that non-paying tenants have the same rights as paying tenants (at least in Virginia) until the point of eviction.

So my conclusion is that the eviction process is the only way to proceed in that situation. But I can't provide any conclusive evidence.

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I have a situation where a San diego Tenant month after month deducts an amount from the rent they pay for some reason.
It costs me more to go to the attorney and deal with it. So after a number of months I have issued a 30 day notice to remove them selfs.
Now they insist that if they say past the first of the month they will not have to pay rent for those days, because it is not written in their least. So after months of nicke and diming me I have to go to an attorney and have her write them a letter explaining tghe law anyway.... which is what I feel I should of done in the beginning anyway....
Hince if a tenant starts to give you problems... end the least asap....

Anonymous said...

I have a situation where a San diego Tenant who month after month deducts an amount from the rent they pay for some reason.
It costs me more to go to the attorney and deal with it. So after a number of months I have issued a 30 day notice to remove them selfs.
Now they insist that if they say past the first of the month they will not have to pay rent for those days, because it is not written in their lease. So after months of nicke and diming me I have to go to an attorney and have her write them a letter explaining the law anyway.... which is what I feel I should of done in the beginning anyway....
Hince if a tenant starts to give you problems... end the lease asap....
( repost to correct spelling errors...)

Anonymous said...

This is not in intentional lockout by the landlord. The mindless tenant lost his/her key locking themselves out of the house. The tenant has the responsibility of regaining entry to their leased property just like the rest of us. By locking a locksmith, paying for it, then rekeying the doors. Their may be a need to provide a copy of the key of the landlord.

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