Why a Landlord has no Cause of Action for Trespass.

Consider the following situation. A landlord “L” leases to a tenant “T” who surreptitiously invites Deadbeat to live with him. T’s lease is up and he vacates but Deadbeat does not. One week later L arrives with a police officer to boot out Deadbeat who, he claims, is a trespasser. Can he do so? No. The cause of action for trespass to real property is available to those who “have a property… in soil, and actual possession by entry.” Blackstone, William Commentaries Book 3, Chapter 12. And “before entry and actual possession, one cannot maintain an action in trespass though he has the freehold in law.” Id. The party that could have an action in trespass is T who had “actual possession by entry.” The landlord has not reentered so he has only a right to rents, not to possession. In order to obtain possession again, the person currently in possession must be evicted through the unlawful detainer process. However, a savvy landlord will require the tenant to assign to the landlord the right to enforce the tenant’s right of possession against Deadbeat. But another obstacle faces the landlord: is Deadbeat a trespasser at all? Perhaps not. A trespasser is one who “break[s] his close.” Id. Deadbeat broke no “close,” but was invited onto the property by one who had the “right of possession.” Under the facts presented it is unknown whether or not that right was ever revoked. So even if the landlord obtained an assignment of the right to sue for trespass, an action for trespass may not lie until Deadbeat is invited to leave and refuses to do so. A landlord’s proper remedy is an action for unlawful detainer and eviction. In American law, the landlord is generally prohibited from regaining “actual possession by entry” without the state’s assistance. Once a judgment of eviction is obtained, the sheriff can come and help the landlord, if necessary, “reenter” and take actual possession of the property. Visit our firm: www.mountainwestlaw.com