Berg v. Wiley

264 N.W.2d 145 (Minn. 1978)


A lease between plaintiff tenant/restaurant owner and defendant landlord provided for a five-year term, specified that tenant agreed to bear all costs of repairs and remodeling and make no changes in the building structure without prior written authorization from landlord, to operate the restaurant in a lawful and prudent manner, and reserved landlord’s right to retake possession if tenant failed to meet the conditions of the lease.  About three years into the lease, a dispute arose after landlord objected to tenant’s continued remodeling of the restaurant without written permission and consequent operation of the restaurant in a state of disrepair with alleged health code violations.  Landlord’s attorney sent tenant a letter charging breach of the lease and demanding a list of remodeling items be completed within two weeks.  Tenant continued to operate the restaurant until the last day of the two-week period, when she placed a sign in the window saying “closed for remodeling.”  That evening, tenant was in the restaurant with some friends when she heard landlord pounding on the back door demanding to be let in.  Landlord testified he observed them removing paneling from a wall and feared destruction of the property.  The following week, landlord entered the premises with a police officer and locksmith without tenant’s presence or knowledge and changed the locks, and later relet the premises to a new tenant.

Procedural History

The trial court found that landlord’s reentry was forcible as a matter of law, rendering the issue of breach irrelevant.  A jury awarded tenant lost profits and loss of chattels resulting from wrongful lockout and also found that tenant neither abandoned nor surrendered the premises.


1.  Was there sufficient evidence to support the jury’s finding that the tenant did not abandon or surrender the premises?

2.  Was the landlord’s reentry forcible and wrongful as a matter of law?

Holding / Rule

1.  Yes.

2.  Yes.  The only lawful means to dispossess a tenant who has not abandoned nor voluntarily surrendered the premises but who claims possession adversely to a landlord’s claim of breach of a lease is by resort to the judicial process.


While the evidence was conflicting, it was sufficient to support a finding that tenant intended to retain possession, closing only temporarily to remodel.

A landlord may use self-help to retake a lease premises if (1) the landlord is legally entitled to possession, such as where a tenant breaches a lease containing a reentry clause; and (2) the landlord’s means of reentry are peaceable. It has long been the policy of property law to discourage landlords from taking the law into their own hands—any use of self-help to dispossess a tenant in circumstances likely to result in breaches of the peace is disfavored.  A landlord is not entitled to be the judge of his own rights—his remedy is in court, and in modern society, prompt and sufficient legal remedies are available to the landlord to retake possession.  Here, tenant was in possession, neither abandoned nor surrendered the premises, and claimed a right to continue possession in spite of landlord’s claim of breach of the lease.  The record shows a history of vigorous dispute between the parties.  Tenant’s absence when landlord changed the locks does not make the action peaceable—approving this means of reentry would encourage future tenants to be vigilant and raise the risk of confrontations.

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