MAY I HELP MYSELF?  Part 2: Commercial Landlord’s Use of Self-Help   Premises Recovery in Virginia and Maryland

MARYLAND – “Yes,” But Not Preferred

A landlord may evict a non-paying tenant by initiating a failure to pay rent action in the District Court of the county where the property is located. This procedure, known as “summary ejectment,” is the statutory remedy available to all landlords when a tenant defaults in its payment of rent under a lease. Commercial landlords may also avail themselves of self-help actions to reacquire their property, and there is well-established case law supporting this remedy, but not without a caveat or two.

A foundational case, K&K Management v. Lee, 316 Md. 137 (1989) makes it clear that courts “do not encourage resort to self-help and … the Bar counsels against it. Nevertheless, self-help is not a prohibited means of acquiring repossession of premises upon termination of a commercial lease, so long as repossession can be effected peacefully.” K&K at 178. This attitude was supported in Nicholson Air Services, Inc. v. Board of County Commissioners of Alleghany County, 120 Md. App. 47, stating, “To be sure, resort to the statutory summary ejectment procedure is the preferred mechanism for repossessing property that is wrongfully held by a tenant. But it is not the exclusive remedy in Maryland.” Nicholson, at 78.

Clearly, case law does not prevent a commercial landlord from resorting to self-help, but permits it only when the lease expressly authorizes this remedy. K&K Management, the landlord, retook possession of the subject premises by terminating the lease and changing the locks without notice to tenant Lee. The court held that the Lees' rights either to occupy the premises or to receive notice of termination rested on the Agreement. See, K&K at 167-168 (“a commercial landlord is permitted to resort to self-help to repossess premises and property within the premises when a tenant is in breach of a lease that authorizes that remedy”). See also, Nicholson at 79. K&K Management’s self-help repossession was found to be unlawful where the lease did not permit such retaking. If the lease does not specifically authorize the landlord to re-enter the premises upon termination of the lease after a tenant defaults, then self-help is not an available option to reacquire the premises.

The Appellate Court of Maryland (under the then-named Maryland Court of Special Appeals) further defined the permitted-but-not-encouraged actions of self-help repossession in Donegal Assocs., LLC v. Christie-Scott, LLC, 248 Md. App. 448 (2020) by setting out a three-step inquiry approach: (1) Is the tenant in default under the terms of the lease; (2) Do the terms of the lease permit the landlord to retake possession in the event of a breach; and, (3) Can the repossession be done peacefully? Donegal, at 472.

First, look to the lease. Has the tenant defaulted under the terms of the lease? If the answer is yes, then the landlord must determine whether re-entry and reacquiring the premises after default and termination is expressly permitted under the lease terms.

Lastly, the landlord must consider whether reacquiring the premises can be performed peacefully. While self-help eviction naturally will create tension and disrupt a tenant’s peaceful business, K&K suggests avoiding “a confrontation possibly leading to violence.” See, K&K, at 179. Donegal provides a good example to follow. There, the landlord (Donegal) chose a day when the tenant’s business was closed, so as not to disrupt the ongoing operations. One employee, who happened to be present, was notified of the actions being taken, was permitted to recover her personal belongings, and the locks were changed.

While the answer may seem clear that self-help eviction is available to commercial landlords in Maryland, any decision to do so should not be made with tunnel vision. There are myriad consequences to consider and some to avoid. These include: termination of the lease upon default; proper disposal of the personal property remaining on the premises to avoid accusations of conversion of or damage to the property; potential vulnerability to claims of tortious interference with the tenant’s business relationships; or, the possibility of a suit by the tenant to recover whatever loss it has sustained as a result of the landlord’s acts, to name a few.

Upon weighing the options and caveats of self-help retaking of premises, the Maryland commercial landlord will be wise to follow the advice of the courts and avail itself of the statutory provisions to evict a defaulted tenant.

If you have questions about this article, or about evictions in general, please contact Denise Reverski ( at 804-377-1272 or Steve Setliff ( at 804-377-1261.