The ability of a landlord to evict a tenant during the COVID-19 outbreak is severely limited by executive or judicial orders issued in response to the pandemic. Most courts have limited operations and some have suspended residential and commercial evictions in addition to the CARES Act (discussed in a separate Blawg post).
In the absence of the ready availability of judicial eviction proceedings, landlords are asking if they can use self-help methods to evict or lock out tenants. In Oklahoma, the answer is a resounding “NO!” For example, in the Oklahoma Residential Landlord and Tenant Act, the landlord’s self-help remedies are outright eliminated, and the landlord is required to pursue judicial remedies only. Commercial landlords may think that the self-help remedies carefully detailed in their leases are enforceable as written. But they are not! Landlords may enforce their rights only by the judicial process despite language to the contrary in their commercial leases. See, Parker Livestock, LLC v. Okla. City Nat’l Stock Yards Co. (W.D. Okla., 2015) (An action for forcible entry and detainer is the exclusive procedure for ousting a both residential and commercial tenants.).
Thus, self-help measures, such as changing locks, cutting off utilities, or removing tenant property, may expose a landlord to civil damages, and a landlord should carefully consider and seek legal advice before acting. The statutory penalty for a wrongful residential eviction is two (2) times the rent for the period of the eviction until the property is restored to the tenant, plus attorney fees and court costs.
Demand for Cleaning and Quiet Enjoyment
Cleaning issues are likely to take center stage after the outbreak ends and business restrictions are lifted. Even if not expressly provided for in the lease or demanded by the tenant, landlords should take reasonable steps to maintain the property during and after the outbreak, following CDC guidelines for proper cleaning and disinfection.
Failing to maintain the property or failing to take appropriate steps to clean the property and prevent the spread of disease may be grounds for a breach of the landlord’s covenant of quiet enjoyment or for constructive eviction. Constructive eviction is a high bar, but issues related to the pandemic will provide opportunities for the development of case law applicable to our current circumstances.
As the length of business shutdowns grow, so will the scope and magnitude of issues that landlords and tenants need to navigate. The most effective method for dealing with the effects of the COVID-19 outbreak is for landlords and tenants to proactively communicate and avoid making decisions that could be regretted later.