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Commercial Landlord/Tenant Law | June 2017

Commercial Lease Enforcement: Lockout of the Tenant

When a material breach of the lease has occurred, one of the remedies available to the landlord is to seek self-help via available lockout rights.[1]

Pursuant to A.R.S. § 33-361(A), if a tenant is past due on rent for a period of no less than five days, the landlord has a statutory right to retake possession of the premises and lock out the tenant.[2] However, in exercising this right to lock out the tenant, the landlord must be mindful of the following:

  • Lockout is not a proper remedy if it will breach the peace or require excessive force.

  • Excessive force, breaching the peace, or any other unlawful lockout may result in civil liability to the landlord.

  • Claims may arise from time to time regarding the property that was located inside the premises at the time of the lockout. To avoid these issues, the landlord is advised to prepare a video inventory of the property inside the premises immediately upon retaking possession via the lockout.

Given that a breach of the peace is the biggest concern for a landlord seeking to pursue a lockout remedy, negotiating a stipulated turnover would be the best-case scenario. However, in attempting to do so, the landlord will alert the tenant to the impending lockout and increase the likelihood of a breach of the peace; thus, this is often not a viable option.

In such situations, the landlord is left with no choice but to exercise its lockout rights, and would be well advised to take all necessary steps to ensure that the peace is maintained (e.g., do it during non-business hours, hire security, etc.).

 

[1] The lockout remedy is not an exclusive remedy, and does not preclude a later litigation based claim for monetary damages relating to the lease. See Roosen v. Schaffer, 127 Ariz. 346, 621 P.2d 33 (1980).

[2] See Miller v. Condon, 66 Ariz. 34, 182 P.2d 105 (1947).