Evictions are expensive–often costing $2,000-5,000. They also take a long time–usually at least four months from start to finish. Due to these high costs, frustrated landlords sometimes wonder whether it’s worth the risk of just skipping the eviction process and locking their tenant out of the unit illegally, a practice known as landlord “self-help.” This question of whether to engage in self-help seems to be increasingly common among smaller, poorer landlords in Seattle or Tacoma who can’t afford to subsidize a tenant for 9+ months.
Is illegal self-help a viable option in 2024? The short answer is maybe. However, we definitely can’t recommend it.
The concept of “efficient breach”
The term “efficient breach” originated in contract law to describe a situation where one party to a contract decides to breach their duties because it is cheaper to pay damages than to perform. Efficient breach can only occur when compliance is more costly than noncompliance. Essentially, efficient breach is the result of a cost-benefit analysis.
The efficient breach concept can be applied to breaches of public law as well. For example, the majority of drivers speed because they believe it’s worth the occasional speeding ticket to save 3-5 minutes on a standard commute (up to 21 hours a year!). Speeding can be an efficient breach of civil law.
Another example is big polluters. If it would cost an oil company $1MM per ton to mitigate illegal emissions but the EPA only charges $400,000 per ton in penalties, then the oil company still makes $600,000 per ton by polluting and accepting the EPA penalties. This is another (too common) example of efficient breach.
So, is illegally locking out your tenant an efficient breach of law? Let’s look at the costs and benefits.
Legal penalties for locking out your tenant
Locking out your tenant is illegal under RCW 59.18.290(1), which states:
It is unlawful for the landlord to remove or exclude from the premises the tenant thereof except under a court order so authorizing.
In the event of a violation, the tenant is entitled to the following damages:
- recover possession of the premises,
- recover actual damages (e.g., moving costs, interim housing costs, lost wages), and
- reimbursement of their attorney fees.
Landlords may be wondering whether illegally locking out a tenant has any potential benefit when a tenant has the right to recover possession of the premises. The main potential advantage comes from the fact that a tenant must sue to obtain relief, which can be a major barrier to action.
Tenants in these cases have no right to a free attorney (whereas many tenants do have the right to a free attorney in evictions). Hiring an attorney would cost perhaps $5,000 or more. That said, there are plenty of pro-tenants organizations that may be willing to represent an illegally displaced tenant for free, particularly if the landlord has illegally displaced more than one tenant in the same complex around the same time.
Other possible liability
After researching the appellate records, we did not find any cases where landlords that illegally locked out their tenants were found liable for anything other than the damages set out above (restoring the tenant to possession, actual money damages, and attorneys fees).
However, other penalties may be possible depending on the fact pattern. For example, if a landlord physically touches a tenant in the process of changing the locks, that may be assault. If a landlord throws out or sells the tenants’ possessions, that may constitute theft and may also incur liability under RCW 59.18.230.
Locking out a tenant on purpose is the kind of thing that makes judges, newspapers, and pro-tenant organizations very angry. Additional penalties are very possible, but difficult to predict due to a lack of recent cases addressing this issue.
Possible strategy for preventing illegally displaced tenants from recovering possession
A possible strategy for preventing a displaced tenant from recovering possession may be to quickly fill the unit with a new tenant.
As far as we can tell, this question is untested by Washington Courts. However, we think a close analogy is sale to a “bona fide purchaser for value” in the real estate purchasing context. For those unfamiliar with the concept, we’ll explain. After getting under contract to sell a property to a buyer, a seller will sometimes refuse to close the sale in violation of the contract (this can happen for many reasons). In these cases, sometimes the seller will quickly sell the contested property to an innocent buyer–the “bona fide purchaser for value”–who doesn’t realize the first buyer has the property under contract. After the sale to a bona fide purchaser, the first buyer can no longer force the seller to unwind the sale and sell the property to the buyer.
Likewise, if a landlord illegally displaces the first tenant and quickly re-rents the unit to a new tenant who is unaware of the first tenant’s illegal displacement, then probably a court would decline to displace the new tenant in order to restore the first tenant to possession of the premises. Obviously, the landlord would still be liable to the illegally displaced tenant for their actual damages and attorneys fees, but if the tenant is bad enough, that may be a worthwhile price to pay.
Tenant’s duty to mitigate damages
The “duty to mitigate,” is the plaintiff’s obligation to make reasonable efforts to limit the harm they suffer from the defendant’s illegal actions. Thus, an illegally displaced tenant cannot rent a room at the Four Seasons for a month and ask the landlord to pay for it as part of their actual damages. Instead, the tenant must take reasonable measures to limit their losses, such as rent a motel room or reasonably-priced Airbnb until they can find a comparable apartment.
Weighing the costs and benefits
To ascertain whether a breach is efficient, one must weigh the costs and benefits.
Estimating the costs of an illegal lockout
Estimating the potential liability is difficult. It depends on the rent, your tenant, and how the lawsuit goes. However, here is a hypothetical set of possible costs that we think are on the high end of realistic:
- Tenant’s moving and storage costs: $1,000
- Tenant’s interim housing costs: $2,000
- Difference between tenant’s new rent and old rent over lease term: $2,000
- Tenant’s lost wages during move/displacement: $2,000
- Tenant’s attorney fees and costs (assuming no major litigation): $4,000
- Landlord’s attorney fees: $4,000
Total: $15,000
Again, these costs are an estimate (possibly an overestimate), and the majority of tenants probably wouldn’t sue, in which case the cost to the landlord would be $0.
For context, let’s compare these potential costs to a normal eviction as well as a bad-but-not-worst-case-scenario eviction in Tacoma.
Estimating a landlord’s costs in a normal eviction
Below is a reasonable cost estimate in a “normal” eviction using the average two-bedroom rent in Tacoma:
- Two months of lost rent for notices and court ruling, two months for sheriff action (assuming $1,730 monthly rent): ~$6,900
- Attorneys fees and costs: $5,000
Total: $11,900
In this instance, a landlord probably doesn’t have a strong incentive to illegally lock out a tenant. However, the costs of going through the legal eviction process are certain, whereas the costs of a tenant litigating to recover damages and possession of the premises are uncertain. If a landlord believes that the odds of a tenant litigating are less than about 80%, it would become efficient to illegally lock out a tenant.
Note that the King and Pierce County Sheriffs usually takes two full months to actually kick out the tenant even after the landlord’s attorney has obtained a court order allowing them to do so. This may vary when the sheriff is less busy or in other jurisdictions.
Estimating a landlord’s costs in a school-year ban eviction in Tacoma
Tacoma has a 9.6-month school-year eviction ban, so costs go up dramatically.
- 9.6 months of lost rent plus two months for sheriff action (assuming $1,730 monthly rent): $20,000
- Attorneys fees and costs: $5,000
Total: $25,000
In this instance, a landlord has a clear, $10,000+ incentive to illegally lock out their tenant. This is a case where an illegal lockout very likely constitutes an efficient breach.
Conclusion
Illegally locking out a tenant is a risky and unattractive option that creates bad blood, invites bad publicity, and worsens the reputation of landlords everywhere. However, as Washington lawmakers foist more and more costs on landlords, landlords will increasingly have an incentive to engage in illegal lockouts as an efficient breach.
As a general rule, laws shouldn’t incentivize efficient breach. The best way to fix this issue would be to make evictions less costly for landlords in jurisdictions like Tacoma where evictions have been bankruptingly expensive.
All that said, the best option for landlords seeking a practical solution is often cash for keys where the landlord agrees to pay the tenant to leave. We wrote an article explaining how we engage in this negotiation. Definitely give it a read before doing something rash.
