In March 2008 a landlord leased a commercial storefront in Manhattan to a retail boutique for five years. Rent went into dispute within months, and the landlord sued in Supreme Court for a declaration about what the tenant actually owed. While that action was still pending, the landlord served a second rent demand: $270,493.21 for August 2008 through September 2009, pay by the date stated or be evicted. The tenant said no rent was due because conditions precedent had not been met. The landlord padlocked the door. The tenant cut the lock off. The landlord padlocked it again.[1]
Civil Court restored the tenant to possession without a hearing and suggested that self-help is never available to a commercial landlord in New York. On 22 September 2010 the Appellate Term, First Department, reversed, held that self-help is available, and then set out four conditions for it. The lease is only the first one.[2]
Whether a landlord can take commercial space back by changing the locks is settled by the lease’s re-entry clause read against one state statute, and the two combine to a different answer in every state. Texas lets the lease override the statute outright. New York treats the clause as the first of four conditions, and the other three are where landlords lose. Florida and California put the clause beyond use, because possession comes back through a court or it does not come back.
The New York test has four parts and the lease covers one. A commercial landlord may use self-help where the lease specifically reserves the right to reenter and regain the premises on a breach of the rent obligation, the landlord serves a valid rent demand before reentering, the reentry is peaceable, and the tenant is in fact in default on rent.[2] The clause in that Manhattan lease was ordinary paragraph 17 boilerplate: on a default in the payment of rent the landlord “may without notice, re-enter the demised premises either by force or otherwise, and dispossess Tenant by summary proceedings or otherwise,” with the tenant waiving notice of intention to reenter. The court held that language sufficient, and noted that other landlords have reserved the right with language substantially similar to it.[2] So the drafting half of this is close to solved. Almost any modern form lease clears condition one.
Conditions two through four are facts, and facts are what get litigated. The Appellate Term could not tell from the record whether the rent demand was valid, meaning whether it gave the tenant actual notice of the approximate good-faith sum owed. It could not tell whether the reentry was peaceable, partly because the tenant said the landlord’s president threatened one of its employees after the first padlock was cut. It could not tell whether the tenant had breached at all, because that was the subject of the separate Supreme Court action nobody had finished. Each point raised a triable issue, so the case went back for a hearing.[2] A landlord who locks a tenant out while the amount of rent is genuinely in dispute has bet the treble damages provision of RPAPL 853 on winning an argument it has not yet won.[3]
Texas grants the lockout by statute and then hands it back to the lease. Section 93.002(c) of the Property Code bars a landlord from intentionally preventing a tenant from entering except by judicial process, with three exceptions, one of which is changing the door locks of a tenant delinquent in paying at least part of the rent. No lease clause is required for that. Subsection (f) requires a written notice on the front door naming the person or company from which the new key can be obtained, available during the tenant’s regular business hours and only on payment of the delinquent rent. Then subsection (h): “A lease supersedes this section to the extent of any conflict."[4] In Cole Chemical & Distributing, Inc. v. Gowing the landlord admitted it never posted the notice and argued the lease had taken care of that, because the lease let it terminate the right of possession and “without notice or demand . . . change the locks.” The trial court agreed with the landlord. The appeals court did not need to decide the point, because the tenant had already moved out and knew who held the new keys.[5] The question is still open in Texas. A landlord relying on its lease to skip the key notice is relying on a trial court ruling that no appellate court has confirmed.
A Texas lockout need not end the lease, and the rent keeps running. Gowing was locked out during the second year of a two-year lease at $3,908.58 a month plus a share of escalations. Four and a half months later the parties agreed he could move back in for the rest of the term. The trial court cut the landlord’s damages by $19,220.88, finding it had made no reasonable effort to relet during the lockout, and awarded $976.52. The Fourteenth Court of Appeals reversed that: a tenant who proves the landlord failed to mitigate but does not prove how much of the loss was avoidable gets no reduction at all, so the landlord was entitled to the unpaid rent for the lockout period plus prejudgment interest.[5] The landlord also asked for $27,100 in attorney’s fees and was awarded $2,500, and the appeals court sent both the damages and the fees back to the trial court to be worked out again.
In California the right of reentry is not a defense, and turning a key is force. Jordan v. Talbot is the governing case and Traynor wrote it. The lease gave the landlord a right of reentry on breach. The tenant fell two months behind on $132.50 rent, and the landlord unlocked her door while she was out, moved her furniture to a warehouse, and would not let her back in. A jury awarded $6,500 plus $3,000 punitive. The court held that section 1159 of the Code of Civil Procedure reaches “every person,” owners included, that nothing makes a right of reentry a defense, and that absent a voluntary surrender the landlord can enforce that right only by judicial process. Unlocking the door without consent was itself a breaking open within the statute, “even though there was no physical damage to the premises or actual violence.” And the sentence that ends the drafting conversation: “In any event a provision in the lease expressly permitting a forcible entry would be void as contrary to the public policy set forth in section 1159."[6] Jordan was an apartment, but the rule is not about dwellings. The court relied on Karp v. Margolis, where the owner of a retail store used a locksmith to enter in the occupant’s absence, and the entry was peaceable, and it was still a forcible entry.[6]
Florida says “only,” and a re-entry clause does not add a fourth option. Section 83.05(2) provides that a landlord of nonresidential premises shall recover possession only in an action for possession or other civil action determining the right of possession, on surrender, or on abandonment. Abandonment is presumed only after the landlord reasonably believes the tenant has been absent 30 consecutive days, the rent is not current, and 10 days have passed since a section 83.20(2) notice was served.[7] In Ardell v. Milner the tenant was a dentist who had withheld rent over inadequate air conditioning and services. The parties disagreed about how much was owed, and the landlord went to the building at night and changed the locks. The dentist lost patients and access to his books, records and instruments. The Third District held the statutory remedy exclusive of any forcible entry by the landlord, “even though the lease contains a provision permitting the landlord to reenter,” and sent the damages question, including lost profits, to a jury.[8]
The penalty for getting it wrong swings by an order of magnitude. New York gives the tenant treble damages under RPAPL 853.[3] Florida gives general damages measured by the difference between the market value of the lease and the rent payable under it, plus lost profits provable with reasonable certainty, which for a professional practice with a patient list is the whole business.[8] Texas gives possession or termination at the tenant’s election, actual damages, one month’s rent or $500 whichever is greater, attorney’s fees and costs, less any delinquent rent the tenant owes.[4] A Texas tenant locked out unlawfully can also file a sworn complaint for reentry in justice court and get an ex parte writ of reentry, enforceable by contempt, and that is faster than anything the landlord can do.[9]
There is a reason this is a 2026 question rather than a 1961 one. The Mortgage Bankers Association put $875 billion of commercial mortgage balances, 17 percent of the $5.0 trillion outstanding at the end of 2025, on schedule to mature during 2026, with 17 percent of office loans in that number.[10] Trepp counted $47.42 billion of CMBS loans 30 or more days delinquent in August 2026, and office loans were 42 percent of that balance across 467 loans.[11] That is the population with the most reason to want a delinquent tenant resolved one way or the other before a refinancing, and changing a lock is the fastest thing an owner can do without a lawyer. It is also the thing that turns a rent dispute into a tort claim.
A lockout is not a neutral act inside the lease either. Taking back possession can read as an acceptance of surrender, which is exactly what ended the guarantor’s exposure in the good guy guaranty cases, and a landlord who changes the locks and then keeps billing has to decide which of those two positions it is holding. The mitigation question that decided Cole Chemical is the same one that runs through a mitigation waiver clause, except that here the landlord created the vacancy itself. And in California, a small tenant that has self-certified under SB 1103 gets notice before a month-to-month tenancy can be terminated, on top of a rule that already sent the landlord to court for possession.
Reading the remedies clause before anyone touches a lock#
Acrebase pulls the landlord’s remedies and re-entry provisions out of every lease in a portfolio and lines them up against the state each asset sits in: whether the clause reserves a right to reenter on a rent default specifically or only on a general default, whether it waives notice, whether it purports to authorize forcible entry, whether it says the reentry does not terminate the lease, whether there is a separate notice and cure schedule that has to run first, and whether the lease tries to displace a statutory notice the way the Cole Chemical lease did. For an owner running one national form across Texas, New York, Florida and California, that is the difference between a clause that is worth something in Houston and dead language in Miami. The clause library and negotiation playbook hold the state-specific fallback positions, so the California lease does not go out with the Texas remedies section in it.
If you are a landlord, do not change a lock while the amount of rent is in dispute, because condition four of the New York test and the good faith element of the rent demand both turn on being right about the number. Serve the demand, keep the proof of service, and reconcile the ledger before you call the locksmith rather than after. Write the clause so reentry expressly does not terminate the lease or the tenant’s rent obligation, and say so in the notice you post, or you may find you accepted a surrender you did not intend. In Texas, post the section 93.002(f) key notice even if your lease says you do not have to; the appellate question is open and the notice costs nothing. In California and Florida, budget for the possession action instead of pricing self-help into the workout model. If you are a tenant, read paragraph 17 or whatever your lease calls it before you withhold rent, because a clause reserving reentry “by force or otherwise” is not unusual and in New York it does most of the landlord’s work. Ask for a notice and cure period that applies to monetary defaults too, ask that any reentry require a court order, and if you cannot get that, ask for the right to have a rent dispute submitted somewhere before the locks change. If you are already locked out in Texas, the sworn complaint for reentry is a justice court filing and the justice can issue the writ ex parte, without hearing from the landlord first.
Footnotes
[1] Sol De Ibiza, LLC v Panjo Realty, Inc., 26 Misc 3d 331 (Civ Ct, NY County, 14 October 2009, Engoron, J.) and Sol De Ibiza, LLC v Panjo Realty, Inc., 2010 NY Slip Op 20386, 29 Misc 3d 72 (App Term, 1st Dept, 22 September 2010) — written lease entered March 2008 for commercial storefront premises for a five-year term; tenant took occupancy as a retail boutique in April 2008; rent demand served September 2008; landlord commenced a declaratory judgment action in Supreme Court seeking a declaration as to the tenant’s rent obligations and a money judgment for arrears, which was still pending; a second rent demand claimed arrears of $270,493.21 for August 2008 through September 2009 and warned of eviction; tenant refused on the ground that conditions precedent to the rent obligation were unmet; landlord padlocked the premises, tenant cut the lock, landlord padlocked again; tenant alleged that landlord’s president threatened a tenant employee after the first lock was cut. https://www.nycourts.gov/REPORTER/3dseries/2010/2010_20386.htm
[2] Sol De Ibiza, LLC v Panjo Realty, Inc., 29 Misc 3d 72 (App Term, 1st Dept 2010), per curiam, McKeon, P.J., Shulman and Hunter, Jr., JJ., reversing 26 Misc 3d 331 — a commercial landlord may use self-help where “(1) the subject lease specifically reserves the landlord’s right to reenter and regain the premises upon tenant’s breach of its obligation to pay rent, (2) prior to reentry, landlord serves upon tenant a valid rent demand, (3) reentry was effected peaceably, and (4) tenant is in fact in default in its obligation to pay rent,” citing Bozewicz v Nash Metalware Co., 284 AD2d 288 (2001), Matter of 110-45 Queens Blvd. Garage v Park Briar Owners, 265 AD2d 415 (1999), and Matter of Jovana Spaghetti House v Heritage Co. of Massena, 189 AD2d 1041 (1993). Lease paragraph 17 (2) provided that on a default in the payment of rent the landlord “may without notice, re-enter the demised premises either by force or otherwise, and dispossess Tenant by summary proceedings or otherwise,” with the tenant waiving service of notice of intention to reenter; paragraph 17 (1) set a 15-day notice and cure followed by a 5-day notice of cancellation for non-rent defaults. Remanded because the record left triable issues on the validity of the rent demand, that is “whether it afforded tenant actual notice of the approximate good faith sum of rent allegedly owed,” on whether reentry was peaceable, and on whether the tenant had breached at all. https://www.nycourts.gov/REPORTER/3dseries/2010/2010_20386.htm
[3] N.Y. Real Property Actions and Proceedings Law § 853: “If a person is disseized, ejected, or put out of real property in a forcible or unlawful manner, or, after he has been put out, is held and kept out by force or by putting him in fear of personal violence or by unlawful means, he is entitled to recover treble damages in an action therefor against the wrong-doer.” Quoted in full at footnote * of the Appellate Term decision, and applied as a standalone plenary action in which both the lawfulness of the ouster and the damages may be determined, in Alam v Zelman, 2025 NY Slip Op 25255 (Civ Ct, Kings County, 25 November 2025, Bacdayan, J.). https://www.nysenate.gov/legislation/laws/RPA/853
[4] Tex. Prop. Code § 93.002 — (c) a landlord may not intentionally prevent a tenant from entering the leased premises except by judicial process unless the exclusion results from bona fide repairs, construction or an emergency, removing the contents of abandoned premises, or “changing the door locks of a tenant who is delinquent in paying at least part of the rent”; (f) the landlord must place a written notice on the tenant’s front door stating the name and the address or telephone number of the individual or company from which the new key may be obtained, with the key required to be provided only during the tenant’s regular business hours and only if the tenant pays the delinquent rent; (g) on violation the tenant may recover possession or terminate the lease and recover actual damages, one month’s rent or $500 whichever is greater, reasonable attorney’s fees and court costs, less any delinquent rents or other sums for which the tenant is liable; (h) “A lease supersedes this section to the extent of any conflict.” Added by Acts 1989, 71st Leg., ch. 689, § 2; amended by Acts 1993, 73rd Leg., ch. 44, § 1. https://tcss.legis.texas.gov/resources/PR/htm/PR.93.htm
[5] Cole Chemical & Distributing, Inc. v. Gowing, 228 S.W.3d 684 (Tex. App.—Houston [14th Dist.] 2005), No. 14-03-01092-CV, decided 15 March 2005, opinion by Yates, J., panel of Yates, Edelman and Guzman, JJ., on appeal from County Court at Law No. 3, Harris County (Bradshaw-Hull, J.) — two-year lease at $3,908.58 basic monthly rent plus a pro rata share of rental escalations; landlord changed the locks after discovering the tenant had moved across the hall; the parties agreed four and a half months later that the tenant could reoccupy for the remainder of the term; trial court found breach, deducted $19,220.88 for failure to mitigate and awarded $976.52 in damages plus $2,500 of the $27,100 in attorney’s fees claimed; held that a tenant proving failure to mitigate but not the amount of damages that could have been avoided gets no reduction, citing Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc., 948 S.W.2d 293, 299 (Tex. 1997), so the landlord was entitled to unpaid rent for the lockout period plus prejudgment interest. On the cross-issue, the landlord admitted it did not post the § 93.002(f) notice and relied on the lease provision allowing it to terminate possession and “without notice or demand . . . change the locks”; the trial court agreed with the landlord, and the appeals court resolved the point instead on the tenant’s actual notice of how to obtain new keys, citing Jasper Fed. Sav. & Loan Ass’n v. Reddell, 730 S.W.2d 672, 674-75 (Tex. 1987). https://www.courtlistener.com/opinion/2357972/cole-chemical-distributing-inc-v-gowing/
[6] Jordan v. Talbot, 55 Cal.2d 597 (1961), S.F. No. 20578, In Bank, decided 13 April 1961, Traynor, J. — lease gave the lessor a right of reentry on breach of any condition and a lien on the tenant’s personal effects; rent was $132.50 on the first of each month; after the tenant was two months in arrears the landlord unlocked her apartment during her temporary absence, removed her furniture to a warehouse and refused to let her reoccupy; jury returned $6,500 for forcible entry and detainer and conversion plus $3,000 punitive damages. Held that Code of Civil Procedure § 1159 reaches “every person,” owners included; that nowhere is a right of reentry stated to be a defense to an action for forcible entry or detainer; that absent a voluntary surrender the landlord may enforce a right of reentry only by judicial process, the three-day summary remedy of § 1161 being “a complete answer to any claim that self-help is necessary”; that unlocking the door without consent violated § 1159 (1) “even though there was no physical damage to the premises or actual violence”; and that “[i]n any event a provision in the lease expressly permitting a forcible entry would be void as contrary to the public policy set forth in section 1159.” Relying in part on Karp v. Margolis, 159 Cal.App.2d 69, 73 (1958), where the owner of a retail store entered with a locksmith in the occupant’s absence and the entry, though peaceable, was a forcible entry. https://www.courtlistener.com/opinion/1295419/jordan-v-talbot/
[7] Fla. Stat. § 83.05 (Part I, nonresidential tenancies) — “(2) The landlord shall recover possession of rented premises only: (a) In an action for possession under s. 83.20, or other civil action in which the issue of right of possession is determined; (b) When the tenant has surrendered possession of the rented premises to the landlord; or (c) When the tenant has abandoned the rented premises.” Subsection (3) presumes abandonment, absent actual knowledge, only where the landlord reasonably believes the tenant has been absent 30 consecutive days, the rent is not current, and 10 days have elapsed since service of a notice under s. 83.20(2), and the presumption does not apply if the rent is current or the tenant has given written notice of an intended absence. https://www.flsenate.gov/Laws/Statutes/2024/83.05
[8] Ardell v. Milner, 166 So.2d 714 (Fla. 3d DCA 1964), No. 63-368, decided 7 July 1964, rehearing denied 25 August 1964, Barkdull, C.J., before Barkdull, C.J., Horton and Hendry, JJ. — tenant was a dentist who withheld rent after the landlord failed to supply adequate air conditioning and other services; with the amount in dispute the landlord went to the premises at night and changed the locks, evicting him and depriving him of access to his books, records and instruments; directed verdict for the landlord reversed. Chapter 83 “provides for summary remedies by which a landlord may speedily regain possession and said remedy is exclusive of the right of the landlord to make a forcible entry, even though the lease contains a provision permitting the landlord to reenter,” citing Adelheim v. Dougherty, 129 Fla. 680, 176 So. 775. Damages are the difference between the market value of the lease held and the rent payable under it, plus lost profits ascertainable with a reasonable degree of certainty, and loss of patients was held sufficient to reach a jury. https://www.courtlistener.com/opinion/1696382/ardell-v-milner/
[9] Tex. Prop. Code § 93.003 — a tenant locked out in violation of § 93.002 may file a sworn complaint for reentry in the justice court for the precinct where the premises are located and state the facts orally under oath; if the justice reasonably believes an unlawful lockout has likely occurred the justice may issue an ex parte writ of reentry giving the tenant immediate and temporary possession pending a final hearing; the writ is served like a writ of possession and a sheriff or constable may use reasonable force to execute it; the landlord is entitled to a hearing held no earlier than the first and no later than the seventh day after requesting one; disobeying the writ is grounds for contempt under § 21.002 of the Government Code. https://tcss.legis.texas.gov/resources/PR/htm/PR.93.htm
[10] Mortgage Bankers Association, “17 Percent of Commercial and Multifamily Mortgage Balances to Mature in 2026” (9 February 2026), reporting the 2025 Commercial Real Estate Survey of Loan Maturity Volumes — $875 billion, 17 percent of the $5.0 trillion of outstanding commercial mortgages held by lenders and investors, scheduled to mature in 2026, down 9 percent from the $957 billion scheduled in 2025, with $652 billion scheduled for 2027; 30 percent of hotel/motel loans, 23 percent of industrial loans and 17 percent of office loans come due in 2026; $396 billion (21 percent) of balances serviced by depositories, $200 billion (25 percent) in CMBS, CLOs or other ABS, $163 billion (29 percent) held by credit companies, warehouse facilities or other lenders, $76 billion (10 percent) by life insurance companies, and $39 billion (4 percent) of agency multifamily and health care balances. Balances stated as unpaid principal as of 31 December 2025; quotes from Reggie Booker, MBA Associate Vice President of Commercial/Multifamily Research, and Mike Fratantoni, MBA SVP and Chief Economist. https://www.mba.org/news-and-research/newsroom/news/2026/02/09/17-percent-of-commercial-and-multifamily-mortgage-balances-to-mature-in-2026
[11] Connect CRE, “CMBS Delinquency Rate Declines Slightly in August” (10 September 2026), reporting Trepp data for August 2026 — $47.42 billion of CMBS loans 30 or more days delinquent, a slight decline from July, with office accounting for 42 percent of the delinquent balance across 467 loans, against a universe of more than $604 billion; Trepp noting that “as problem loans within the $604-billion-plus universe get worked out, they’re being replaced by new delinquencies”; the record was just under $63 billion in April 2011. https://www.connectcre.com/stories/cmbs-delinquency-rate-declines-slightly-in-august/
Acrebase is AI-powered contract intelligence for commercial real estate — clause extraction, risk flagging, and portfolio-wide search, plus tools for maintaining a consistent clause library and negotiation playbook across every deal a team runs. Learn more at acrebase.com, or get in touch about pricing.