Commercial leases typically have language stating that in the event of a default the landlord may “immediately or any time thereafter re-enter the demised premises… and repossess the same.” But what does that really mean? Can you change the locks? Throw their stuff in the street?

That is not an option in our state. Tennessee courts have held that default does not mean a landlord can bar entry and discard the tenant’s property.

In situations in which a tenant under a commercial lease is in default, landlords should resist the urge to lock the tenant out or to repossess the property. Tennessee law, under the “forcible entry and detainer” statute, creates a right on the part of the landlord to bring a court action to obtain a writ of possession for real property (held under either a commercial lease or residential lease) where the tenant continues to occupy the property after the lease has been terminated. Because it allows you to obtain the writ of possession, it also makes it unlawful for a landlord to repossess or to lock out a tenant unless the landlord first obtains the writ of possession.

Several years ago, Tennessee courts addressed this issue at the Memphis, Tennessee Airport. The lease in that case did not require the landlord to obtain court approval of any type before re-taking possession of the property. It was undisputed, in that case, that the tenant was in default of the terms of the lease for not paying rent.

The landlord followed all of its requirements, even sending a letter to the tenant terminating the lease. In that case, the Landlord then entered the premises and placed a padlock on the gate to the premises, without filing a detainer action first.

It is interesting to note that for about three years prior to the landlord sending the termination letter and locking the tenant out, the leased premises, a restaurant, had been vacant and closed.

The tenant filed suit for the landlord’s violation of the statute when it re-entered and re-took the premises without first obtaining a judgment for possession and filing the required Writ. The landlord argued that it was not required to seek a writ of possession from a court before locking the tenant out because the parties had agreed in the written lease that the landlord did not have to do so.

The court found that, although the tenant had vacated the building, it was legally still in possession of the building by virtue of its rights under the lease. Further, requiring landlords to bring detainer actions to repossess property served the purpose of preventing breaches of the peace that occur as the result of the “inherent friction” created when landlords use “self-help” to repossess property.

The court did note that landlords might be excused from the requirement of obtaining writs of possession in cases where tenants had abandoned the property or voluntarily surrendered it. (Note that, in that case, failing to pay rent and not occupying the property for three years did not amount to an abandonment).

Ultimately, the tenant’s victory in the case was a hollow one as the court determined that, even though the landlord had violated the law, the tenant had suffered no damages as a result of the violation.

However, if a tenant was able to show such damages, it could result in significant monetary damages being awarded against the landlord.