Locking out tenant is probably illegal

Keeping tenant out over concerns of illegal activities may be viewed as a 'constructive eviction.' Such moves as changing the locks to prevent access can bring significant penalties.

September 05, 2010

Question: I own a couple of houses that I rent out for extra income. Unfortunately, they are not in the best part of our town. I have a tenant living in one of them who may be dealing drugs or doing something else illegal because the police have arrested him several times. Every time he is arrested he makes bail and returns to the house in a day or so. Even though he pays the rent on time, I realize that I can't continue to allow him to live in my house. My plan is to change the locks the next time he is arrested, so he can't come back into the house. I know that I need to protect his property inside the house if I do this, but my plan is to move his belongings into a storage locker. I can't afford a lawyer to file an eviction case, so this is my only alternative. Will I be OK if I do this?

Answer: Although your frustration and concern sound legitimate, your plan would almost certainly be viewed as a "constructive eviction" specifically prohibited by California Civil Code Section 789.3. Changing the locks on a rental property, along with similar acts such as cutting off utilities, blocking physical access or removing the doors, are all prohibited by this statute, which imposes significant penalties for a violation. A landlord who engages in a constructive eviction may be liable to the tenant for a penalty of up to $100 for each day of the lockout, along with the tenant's actual damages such as replacement lodging and attorney's fees.

Regardless of the misbehavior or rental agreement violations on the part of a tenant, California law requires a landlord to utilize the unlawful detainer Civil Court action remedy to remove a renter. For landlords who do not have significant financial resources, this remedy may seem cumbersome and expensive, but this policy is firmly established.

If you can document this tenant's criminal activity with police reports, public court records or other evidence, you have the option of giving him an unconditional three-day notice to quit the property. If he does not voluntarily leave, the unlawful detainer can be filed on the fourth day, but the full court process must still be followed.

The only other possible option for you would occur if this tenant is actually sentenced to a significant period of incarceration. In that case, and if he stops paying the rent while in custody, you could treat the property as having been abandoned. Without pursuing the unlawful detainer process, you could give proper notice of abandonment and retake possession of the house, as long as you follow the rules for protection of his personal property in the house.

Martin Eichner, Project Sentinel

Eichner is director of Housing Counseling Programs for Project Sentinel, a Sunnyvale, Calif.-based mediation service. To submit a question, go to http://www.housing.org.