If a landlord illegally enters a rental property, tenant options often include barring landlords from further entry through legal action, breaking their lease early, or suing for a financial award.
Types of Illegal Landlord Entry
The type of illegal landlord entry often determines the specific remedies. Most illegal landlord entries violate either a statute, a lease provision, or the tenant’s common law rights.
Violations of a State or Local Statute
Many state or local statutes regulate landlord entry. These overrule common law standards and contrary lease provisions.
Sometimes a statute determines all entry rights, like in Arizona. Others, like Alabama’s or Ohio’s, let the landlord and tenant make their own access policy, usually as long as it’s in writing and in good faith.
Tenants pursuing a statutory remedy usually have clear but limited options. Statutory remedies are specific, but narrow.
Violations of Lease Access Policy
It’s often easiest to respond to an illegal entry which violates the lease access policy. Unless the law says otherwise, the lease controls rights around landlord entry.
Usually the lease has rules for lease violations. These will govern the process and remedies for illegal entry.
If the lease is silent about remedies, default contract law remedies apply. These are rescission (modifying or canceling lease terms), injunction, and damages (monetary awards).
When a provision in the access policy is ambiguous (can be reasonably interpreted in more than one way), courts take the interpretation that favors the party who did not draft the lease. The landlord usually drafts the lease, so ambiguous terms give tenants an advantage.
Violations of the Tenant’s Common Law Rights
When there’s no applicable statute or lease terms, an illegal landlord entry must violate the tenant’s “common law” rights. Tenants have broad rights at common law. The common law presumes the tenant has the power to refuse any entry, all else being equal.
No state incorporates this common law rule in pure form. Landlords can enter as necessary to fulfill legal and contractual responsibilities. Preventing a landlord’s reasonable and valid entry is usually grounds for eviction.
“Reasonable” and “valid” are the important points with the common law. It’s illegal for a landlord to enter with a purpose unrelated to the tenancy. It’s also a violation to enter with a timing or manner that aren’t reasonable to an ordinary person.
Proving an Illegal Landlord Entry
Documenting an illegal landlord entry is critical for proving any related legal case. Tenants should get as much of the following documentation as possible:
- Landlord’s Notice. The tenant should keep any notice given about the objectionable entry. If the notice was verbal or in another non-permanent form, the tenant should write down the details together with time and date.
- Tenant’s Objection(s). The tenant should ensure there’s a written record of all objections. Written objections should be copied. Verbal objections should have details, time, and date written down as soon as possible. Courts place much more weight on records made at the same time as the alleged events they document.
- Receipts for Related Costs. Most entry laws let tenants sue for “actual damages” (direct costs) related to a violation. Courts demand clear proof of such costs, especially if the landlord argues the amount. Tenants must document all related expenses with care.
Notifying the Landlord About an Illegal Entry
After an illegal entry takes place, tenants should immediately give the landlord written and dated notice that they consider the entry a violation. They should do this even if they’ve already objected beforehand to the entry.
This gives the landlord an opportunity to consider the situation after the fact and correct it. It also shows the landlord has notice that the tenant still thinks there’s a problem.
Landlord Consequences for an Illegal Entry
While specifics vary by state, landlord consequences for an illegal entry are more or less standardized. A tenant might respond by ending the lease, suing for an injunction or financial award, or (in extreme cases) calling the police to remove the landlord.
Tenant Ending the Lease
Sometimes tenants can end the lease in response to an illegal entry. This remedy is available in all states, but it can be difficult to get if it’s not a part of statutory law.
In states which incorporate some or all of the Uniform Residential Landlord-Tenant Act (URLTA), the tenant usually has the right to end the lease if the landlord makes repeated illegal entries. While the only safe way to do this is by getting a court order, the tenant can often just move out, stop paying rent, and claim valid termination of the lease if the landlord sues.
Where no statute allows tenants to end the lease, like in Idaho, this remedy is much more difficult to get. Courts disfavor breaking a contract unless there’s no other reasonable option.
Tenant Suing for an Injunction
An injunction is the most commonly available remedy for illegal entry. The process may be easier when a statute covers injunctions, but injunctions are available in any state.
Injunctions will prevent all landlord entry except for types approved by the court. There are serious legal consequences for violating an injunction, possibly including imprisonment.
Tenant Suing for a Financial Award
All states let a tenant sue for a financial award in response to an illegal entry.
In most states, the amount is only for provable costs directly related to the entry. This makes financial awards often the least attractive remedy for a tenant.
A few states, like Connecticut, help by providing a minimum penalty for illegal entry. This amount is often one month’s rent.
Small Claims vs. Regular Court
Small claims courts are a less formal process that often forbids lawyers. They usually grant only monetary awards. Most small claims courts lack the power to restrain misconduct with an injunction.
If the tenant only seeks to recover the cost of an illegal entry (and/or minor statutory fines, as in Hawaii), it may be best to file in small claims court. By contrast, a lawyer may be necessary when the goal is more to bar the landlord from further illegal entries than to recover money.
Tenant Calling the Police
In most states, tenants can call the police to remove anyone who forces their way onto the property unlawfully. Tenants can generally treat anyone on their property without consent as a trespasser.
This is a drastic option since it introduces criminal law into what’s normally a civil dispute. Tenants face eviction and possibly jail time for an unjustified report. They must have the highest confidence that the landlord’s entry is illegal before calling the police.
Police can only deal with an illegal entry in progress. If the landlord has already come and gone, tenants should never call the police. They should instead pursue one of the other options listed above.
