Commercial Lease Remedies Clause & Locking Out a Tenant

Every lease has a clause which describes what a landlord may do if the tenant defaults, the remedies clause. Many of my clients, both landlords and tenants, consider this boilerplate language and do not pay enough attention to it.

A landlord’s attorney will detail the various remedies a landlord has, such as terminating a lease, and will frequently include the language “In addition to any other rights and remedies available to Landlord under this Lease at law or in equity….” This language is considered by many lawyers to be a “catch-all” provision akin to “including but not limited to…”  It will, in fact, broaden the landlord’s rights in evicting a non-paying tenant quickly. However, even after the landlord has terminated the commercial lease, this language will not provide the landlord with his most powerful weapon, the right to “lock out” a tenant. New York Case law has held that “catch-all” phrases like the one above are inadequate.

Unlike with residential tenants, it is not “per se” illegal to (after termination of the tenancy via notice) to simply the padlock a commercial premises. This must be done peaceably, i.e. after hours when the tenant is not there. However, many judges frown on this and I do not advise my landlord clients to do it unless there is specific, express language in the remedies clause authorizing the landlord to re-enter the premises after lease termination.

Not reviewing the case law applicable to your jurisdiction could be very costly when locking out a tenant. The aggrieved tenant could sue the landlord for damages such as lost business, etc. Potentially the tenant could get treble damages, but that is unlikely as long as the landlord did it peaceably had at least a colorable argument that it acted in good faith, such as ambiguous lease language.

It is always best to consult an experienced commercial lease lawyer when considering terminating a lease and locking out a tenant.