BBG News

Locked Out: When Restoring an Occupant to Possession is Futile

Jan 17, 2023

When landlords are accused of illegally locking unauthorized occupants out of apartments, they can invoke the doctrine of futility in their defense–that a locked-out occupant should not be restored to possession because a subsequent lawful eviction is inevitable.

In a recently decided case, BBG represented a landlord accused of illegally locking out a home care attendant. The home care attendant had resided in the apartment since March, 2018 and served as a full-time caretaker for the recently deceased tenant of record. Following the death of the tenant of record, the home care attendant was locked out of the apartment and commenced an illegal lockout proceeding against the landlord seeking immediate restoration to the apartment.

The Court conducted its hearing a day after the home care attendant brought the proceeding against the landlord. At the hearing, the home care attendant argued that she obtained legal possessory rights to the apartment by: (a) continuously residing at the apartment for over four years; and (b) establishing a non-traditional familial relationship with the deceased tenant of record. The home care attendant further testified that the landlord acted illegally by locking her out of the apartment and that the landlord should have, instead, commenced a holdover proceeding against her to recover possession of the apartment.

In opposition, we argued on behalf of the landlord that the home care attendant had failed to establish a familial relationship with the former tenant, or any other entitlement to succession of the apartment. Most notably, we utilized the legal concept of futility in urging the Court to decline to restore the home care attendant to possession. We argued that even if the home care attendant could demonstrate that the landlord illegally locked her out of the apartment, any restoration would be futile because the landlord would immediately commence a holdover proceeding against her which would inevitably lead to her eviction from the apartment.

The Court ultimately agreed with our futility argument and dismissed the home care attendant’s case in its entirety, finding that she had failed to establish that she was deprived of lawful possession of the apartment and/or that she was illegally locked out. The Court noted in its decision that while the home care attendant did demonstrate a connection to the apartment and to the former tenant, any restoration would be futile as no legal possessory right to the apartment was demonstrated.

Despite this favorable outcome for our client, this decision should not necessarily be relied upon to lock out occupants. Every fact pattern is different. Landlords and managing agents should contact the attorneys at BBG, so that we can provide strategic analysis to help achieve the best and most cost-effective result.

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