Berg v. Wiley
264 N.W.2d 145 (1978)

  • Berg ran a restaurant in a building that he leased from Wiley.
    • The lease had a clause that Berg would not make any changes to the building’s structure without written permission from Berg.
    • The lease also had a clause that the restaurant would be run in a lawful manner.
    • The lease also said that if Berg breached a clause of the lease, Wiley could retake possession of the building and evict Berg.
  • Berg started to remodel the kitchen without getting written permission from Wiley. In addition, the restaurant failed a health inspection.
  • Wiley and the health department gave Berg two weeks to clean the place up. After two weeks, Berg hung a sign in the window that said ‘closed for remodeling’. Wiley changed the locks and barred Berg from entering the property. Berg sued for wrongful eviction.
    • Berg sued for lost profits, damage to chattels and emotional distress.
    • Wiley argued the affirmative defense of abandonment and countersued for damages to his property.
  • The Trial Court found for Berg on the wrongful eviction claim and awarded $31k for lost profits and $3k for damage to chattels. Wiley appealed.
  • The Appellate Court affirmed.
    • The Appellate Court found that Berg did not abandon the property.
      • The Court felt that Berg was just closing to remodel, not going out of business.
    • The Court also found that Wiley’s repossession of the property was wrongful.
      • A landlord may use self-help to retake possession of a leased property as long as:
        • The landlord is legally entitled to take possession.
        • The landlord does it peaceably.
      • The Court found that Wiley did not take possession peaceably.
        • The Court defined non-peaceable as anything that could possibly lead to a confrontation. They construed the law so narrowly that pretty much the only way a repossession could be peaceable was if the tenant had completely abandoned the property.
    • Basically, the Court was saying that if there is a dispute with a lease, the landlord should not take the law into their own hands and lock out the tenant. They should go to court and get a court order to do so.
      • “The only lawful means to dispossess a tenant who has not abandoned nor voluntarily surrendered but who claims possession adversely to a landlord’s claim of breach of a written lease is by resort to the judicial process.”
      • In the past, landlords had to resort to doing it themselves (aka self-help) because the judicial process for kicking someone out (aka ejectment) was slow and cumbersome. But modern laws have attempted to make a summary proceeding to eject a deadbeat tenant relatively quick and straightforward.