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A wrongful or illegal eviction occurs when a commercial or residential tenant is forcibly removed from its space without court order.

Generally, the governing laws prohibit the use--or threatened use--of "force" to compel a tenant a tenant to leave, and also discourage any other conduct designed to interfere with a tenant's use and enjoyment of the space (and intended to cause an occupant to vacate). Typically, when such an event has occurred, a judge will issue an order restoring the tenant to possession of the premises. And, when a landlord's conduct is found to have been particularly egregious, tenants have also been awarded "treble" damages.

But even when a landlord is found to have violated these laws, when the conduct is somehow justifiable, the appellate courts have signaled a willingness to excuse a landlord from treble-damage liability. By way of example, in West Broadway Glass Co. v. Namaskaar of Soho, Inc., a landlord locked-out a commercial tenant (who was allegedly in the midst of "unauthorized" renovations and repair of its restaurant space), withheld the keys, and only allowed the tenant to enter its space by way of a "cumbersome" process which required scheduling an appointment with the landlord's agent.

After a hearing, a Judge of the Civil Court of the City of New York determined that the tenant had been "illegally evicted" and found the landlord liable for treble damages. On appeal, the Appellate Term, First Department, struck the landlord's treble-damage exposure and noted as follows:

The evidence, fairly interpreted, supports the trial court's finding that landlord wrongfully evicted tenant by changing the locks, retaining the keys and imposing what the court aptly described as an "elaborate, cumbersome and unpredictable procedure" for access...However, on this record, which shows that landlord's attempt to recover possession, while unlawful, was actuated by concerns over tenant's unauthorized construction at the demised premises, we find that an award of treble damages is unwarranted....

Notwithstanding how justified the landlord's "concerns" may have been over the work that was in progress, we do not believe the owner's resort to self-help should have been rewarded with the elimination of the treble-damage sanction. Landlords are not without a remedy when a tenant is believed to be engaged in "illegal" renovations or repairs. Injunctive relief--an order from a court stopping the tenant from continuing with the violative work--is an available option and a more appropriate substitute for locking a tenant out of its space without judicial imprimatur.

While there have been instances when courts have found "self help" to have been appropriately utilized by a landlord, those cases should be viewed as the exception rather than the norm. Thus, one should never assume that a tenant may be dispossessed without court order. Such an impulsive act is fraught with peril, and can expose an owner to both civil and criminal liability.

For a copy of the Appellate Term's decision, click here: West Broadway Glass Co. v. Namaskaar of Soho, Inc.