Also known as: self help privilege · self-help privileges · self-help · self-help remedy
Written by attorneys — see sources below.
A limited right of a landlord or incoming tenant to recover possession of leased property from a holdover tenant without judicial process. The right exists only when controlling law expressly preserves it and is exercised within a reasonable time after lease termination without physical harm or property damage. Any agreement expanding the right beyond these bounds is void as against public policy.
After the lease ended, tenant Sydney Santos remained in the apartment. Landlord Stonehaven Properties learned that state law provided an expedited eviction proceeding. Stonehaven Properties therefore filed the action rather than changing the locks itself. The court later awarded possession because the availability of the speedy remedy eliminated any self-help option.
After the lease ended, tenant Taylor Ruiz remained in the commercial space. Landlord Harbor Properties considered changing the locks but calculated that monetary damages would adequately compensate. Harbor Properties therefore pursued a damages action rather than self-help measures.
The lease between Sasha Stone and Solstice Ventures contained a clause permitting the landlord to reenter by force upon default. State law provided no preservation of self-help rights. When Solstice Ventures attempted to change the locks, the court refused to enforce the clause because any such agreement is void as against public policy.
After termination, tenant Selena Singh remained in the retail space. Landlord Spectrum Financial waited two weeks then entered with a locksmith while Singh was absent and removed only its own fixtures. Because the entry occurred promptly, caused no physical harm, and avoided damage to Singh's property, the self-help recovery satisfied the governing requirements.
After the lease ended, tenant Morgan Ellis remained in the apartment. Landlord Apex Holdings considered changing the locks but instead filed for judicial possession to avoid any risk of property damage. The court evaluated whether the judicial remedy displaced self-help.
eBay, Inc. operates an Internet-based person-to-person trading site that allows sellers to list items for auction and buyers to search listings and place bids directly with sellers. The site has over 7 million registered users, adds more than 400,000 new items daily, receives 10 million searches per day, and processes 600 bids per minute across nearly 3 million items. Users register by clicking an “I Accept” button on a seven-page User Agreement that prohibits robots, spiders, or other automated devices from monitoring or copying web pages without prior written permission. Bidder’s Edge, Inc., a 22-employee company founded in 1997, operates an auction aggregation site that compiles data from more than one hundred auction sites into its own database containing over five million items. When a user searches on the BE site, the site queries its database rather than the original host sites. Approximately 69 percent of the items in BE’s database come from eBay auctions, and BE estimates it would lose one-third of its users if it stopped covering eBay. In early 1998 eBay permitted BE to include Beanie Babies and Furbies listings. In April 1999 eBay verbally approved BE crawling the site for a 90-day period while the parties negotiated a licensing agreement, but they failed to reach terms. After BE briefly stopped posting eBay listings in late August or early September 1999 and then resumed in November, eBay sent a November 9 letter demanding that BE cease access, alleging trespass, and offering a license. eBay then blocked 169 IP addresses it believed BE was using; BE evaded the blocks by routing queries through proxy servers. BE sent eBay’s systems between 80,000 and 100,000 requests per day, accounting for 0.70 to 1.53 percent of eBay’s requests and data transfer during October and November 1999. eBay calculated alleged damages of $45,323 to $61,804 over ten months but did not identify specific incremental costs caused by BE. The motion for a preliminary injunction was heard on April 14, 2000.
View caseAfter the lease ended, tenant Jordan Hale remained in the office suite. Landlord Metro Properties considered self-help reentry but instead obtained a preliminary injunction. The court assessed the adequacy of judicial relief in light of the potential effects of self-help.
CompuServe Incorporated operates one of the major national commercial online computer services through a proprietary nationwide computer network that provides subscribers with access to its content and a link to the Internet for exchanging electronic mail. Defendants Cyber Promotions, Inc. and its president Sanford Wallace are in the business of sending unsolicited e-mail advertisements on behalf of themselves and their clients to hundreds of thousands of Internet users, many of whom are CompuServe subscribers. Over the past several months, CompuServe received many complaints from subscribers threatening to discontinue their subscriptions unless the company prohibited electronic mass mailers from using its equipment. In or around October 1995, CompuServe employee Jon Schmidt specifically told Sanford Wallace that he was prohibited from using CompuServe's equipment to send junk e-mail messages. CompuServe later posted an online policy statement declaring that it does not permit its facilities to be used by unauthorized parties to process and store unsolicited e-mail. Despite the notification, defendants sent an increasing volume of e-mail solicitations to CompuServe subscribers. CompuServe attempted to block the messages with software programs, but defendants modified their equipment and messages to circumvent the screening by falsifying the point-of-origin information in the headers, removing sender information, and configuring their servers to conceal their true domain name. CompuServe submitted affidavits from software developer Michael Mangino on the burden to its equipment, customer service manager Patrick Hole on receiving approximately 9,970 e-mail complaints in November 1996, and others documenting the evasion tactics. On October 24, 1996, the court issued a temporary restraining order, and following a hearing on December 15, 1996, the court considered CompuServe's application for a preliminary injunction to extend the order and enjoin defendants from sending any unsolicited advertisements to CompuServe subscribers.
View caseWhen controlling law supplies an expedited proceeding for recovering possession from a holdover tenant, the landlord may not resort to self-help unless the law expressly preserves that right. The presence of the judicial remedy therefore displaces any common-law self-help option.
Supporting sources
No. Any agreement permitting the landlord to use self-help is void as against public policy when the controlling law does not itself preserve the right. Courts will not enforce such a clause even if the parties agreed to it.
Supporting sources
Recovery must occur within a reasonable time after termination, must not cause physical harm or the reasonable expectation of harm to the tenant or permitted occupants, and must be accomplished with reasonable care to avoid damage to the tenant's property. Any attempt to waive these requirements by agreement is also void.
Supporting sources
When evaluating whether damages are an adequate alternative to injunctive relief, courts consider the effects of resort to self-help measures among other factors. The availability and consequences of self-help therefore influence whether a court will grant an injunction instead.
Supporting sources
…Indeed, the law of defamation is rooted in our experience that the truth rarely catches up with a lie. But the fact that the self-help remedy of rebuttal, standing alone, is inadequate to its task does not mean that it is irrelevant to our inquiry. : Our caveat against strict liability is the prime target of MR. JUSTICE…