Berg v. Wiley, Supreme Court of MN (1978)
Author: Bram

Parties: DF - Landlord Wiley Enterprises - Retook possession of the premises via self help, without judicial process and before PL had even abandoned the property.

PL - Berg - Operated a restaurant in DF's building, in violation of some health odes, and had closed to remodel when PL took retook possession.

Cause of action/remedy sought: The following are legal actions for trespass, intentional infliction of emotional distress, and damages for lockout and lost profits.

Procedural History: Lower court awarded PL $31,000 in lost profits and $3,540 for loss of chattels resulting from the wrongful lockout. The jury found that PL had neither abandoned nor surrendered the property. DF appealing, seeks outright reversal of the damages award for wrongful eviction, claiming insufficient evidence for jury's conclusion and that court erred in finding wrongful eviction as a matter of law.  This court affirms.

Facts: 11-11-70: DF enters into 5 year lease with DF brother, who runs a pool hall bar type place. Lease to begin 12-1-70.

Early 1971: DF takes assignment from brother, and on 5-1-71 opened a Family Affair Restaurant.   

6-73 & 7-73: DF claims PL is in violation of the lease for making changes to the building structure without permission, by the unsanitary conditions of the kitchen.

6-29-73: Dated letter from DF ordering PL to repair 8 items and comply with the Minnesota Dept. of Health, or DF would retake the premises on 7-13-73, as section 7 of the lease provides.  PL continued to operate the restaurant without making the repairs. PL and DF had several petty squabbles.

7-13-73: At close of business, PL put sign in window "Closed for Remodeling".  Earlier that day DF had attempted to change the locks and was ordered away by PL.

7-16-73: DF enters the premises without PL's knowledge and changes the locks at the advice of his attorney.  PL returns and is unable to enter

7-27-73: PL brings this suit.

8-1-73: DF re-lets to another tenant, who was originally a party to this suit, but was dismissed at the close of PL's case.

Issue(s): Under MN property law, was the LL entitled to self help, i.e., could he retake the premises without judicial process, as stated in the lease, or was LL wrong in locking out PL?

Holding: Yes.  Under the new rule, DF should have sought judicial help in barring PL from premises.

Court's Rationale/Reasoning:  Common Law rule: LL may rightfully use self-help to retake possession if two conditions are met. 1-The LL is legally entitled to possession (i.e. a tenant holds over or the tenant breaches a lease containing a re-entry clause); 2- the LL's means of reentry are peaceable.

Lower court held LL reentry was not peaceable - he picked a lock, under circumstances likely to provoke a breach of the peace. LL had a statute to provide remedy in 3 to 10 days.

Modern trend departs completely from the common law rule, stating that self-help is never available to dispossess a tenant in possession, and has not abandoned or surrendered the premises.  Even under common law rule, judgment would have been affirmed for Berg.  Now that LL's only means to dispossess a tenant are via judicial channels, DF would have surely lost.

Hence, because LL failed to resort to judicial remedies, his lockout of tenant was wrongful as a matter of law.  

Possible effects: Self-help no longer allowed, Tenants rights to possession strengthened and clauses regarding the retaking of the property for breach of the lease now require judicial intervention.

Rule: LL's are no longer allowed to retake the premises without judicial process.

Did court avoid issues?: No.

Dicta: This was a case of first impression.