While recognized under New York's common law and found in most, if not all, commercial leases, the peaceable “self-help” eviction remedy allowing landlords to re-enter the premises upon either (1) a default in payment of rent or (2) abandonment of the premises is seldom utilized. This stems from the court's long-standing reluctance to allow a landlord to evict a tenant before adjudication of a tenant's rights. Moreover, landlords that wrongfully eject commercial tenants “by force” are subject to statutes that provide for treble damages. See §853 of the New York State Real Property Actions and Proceedings Law (the RPAPL). As a result, attorneys are reluctant to advise their commercial landlord clients to exercise self-help eviction remedies even when available by contract. This is typically sound advice unless it is absolutely clear that a tenant has abandoned its space with no intent on ever returning.

Harassment Statute

If attorneys were already hesitant to advise commercial landlord clients to exercise peaceable self-help, legislation enacted Sept. 26, 2016 by New York City Mayor Bill de Blasio may have just ended any lasting uncertainly. A new statute, entitled the “Non-Residential Tenant Harassment” Law (codified as Chapter 9 to Title 22 of the New York City Administrative Code) now prohibits commercial landlords from engaging in what is referred to as “commercial tenant harassment.” What does that mean, you ask? Good question. Courts do not know yet either and are still struggling with how and when to enforce the new statute.

Commercial tenant harassment is defined as any act or omission that: (1) is intended to cause a commercial tenant to vacate property, or to waive any rights under a lease, and (2) includes one or more of the following:

• Using force against or making express or implied threats that force will be used against a tenant;