By: Patrick Tighe
If a tenant defaults under a commercial lease, Arizona law permits the landlord to re-take possession of the premises by locking out the defaulting tenant. However, if the landlord’s lockout is wrongful, the landlord may be liable for the damages the tenant sustains because of the wrongful lockout. To minimize such liability, here are some general best practices to follow when locking out a defaulting tenant:
- Do Not Breach the Peace. It is vital when performing a lockout to not breach the peace. What constitutes a “breach of the peace” depends on the particular circumstances at hand. For example, if a tenant arrives during the lockout and becomes angry or threatens violence, the landlord should stop performing the lockout and return at a later time. As a general rule of thumb, it is best to perform lockouts in the early morning hours or in the late evening hours when the landlord is less likely to encounter the tenant.
- Provide A Notice of Default. Many commercial leases require the landlord to provide a notice of default before the landlord can lock out a defaulting tenant. Check, double check, and triple check that the landlord followed the lease’s notice of default provisions correctly, including that the landlord sent the notices to all required parties in accordance with the time requirements set forth in the lease.
- Retain an Experienced Locksmith. Hire a locksmith who has performed lockouts before on commercial properties. Locksmiths are generally willing to perform lockouts if the landlord agrees to notify the local police in advance of the lockout or if the landlord agrees to provide documentation demonstrating the landlord’s right to retake possession.
- Notify the Local Police and Alarm System Company. Shortly before conducting a lockout, it is a good practice to notify the local police and the building’s alarm system company (if known) about the upcoming lockout. While the police and the alarm system company likely cannot verify a person’s identity over the phone, advance notice further demonstrates that the landlord did not breach the peace during the lockout as well as builds credibility with the police if they arrive on the scene during the lockout.
- Bring the Necessary Documentation. If the police respond during a lockout, make sure you have the necessary documentation to demonstrate who you are and the landlord’s right to retake possession. This includes your business card, driver’s license, the deed, the lease, the engagement letter between the landlord and counsel, and a notice of default letter to the tenant.
- Record the Lockout. To help avoid claims of lost, stolen, or damaged property, it is a best practice to video record the lockout—from the moment the locksmith arrives to when the landlord and locksmith leave the premises. A video recording will help show that no one removed anything from the premises.
- Prepare and Post Notices. Once the property is secure, the landlord or its counsel should post notices on the premises stating that the landlord has initiated a lockout of the tenant for default and providing contact information in case a third party needs to retrieve any personal property inside the premises.
While not all of the above steps are required by Arizona law, they are simply best practices that may help landlords avoid problems and build credibility before a court if legal action ensues.