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       #Post#: 40--------------------------------------------------
       Berg v. Wiley
   DIR By: SunsetSailor
       Date: January 27, 2011, 10:28 pm
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       LL (wiley) claims that Berg abandoned the property and breached
       the lease agreement
       RULES:
       * COMMON LAW:
       1. A landlord may rightfully use self-help to retake
       leased premises from a tenant in possession without incurring
       liability for wrongful eviction provided two conditions are met:
       o (1) The landlord is legally entitled to
       possession, such where a tenant holds over after the lease term
       or where a tenant breaches a lease containing a reentry clause;
       and
       o (2) the landlord’s means of reentry are
       peaceful
       Test for Peaceable Repossession  Whether or not there
       will be T resistance  (There must be an agreement b/w the LL & T
       that the T will leave)
       2. A tenant who is evicted by his LL may recover
       damages for wrongful eviction where the LL either had no right
       to possession or where the means used to remove the T were
       forcible, or both
       2. MODERN RULE(TREND):
       1. The only lawful means to dispossess a T who has not
       abandoned nor voluntarily surrendered but who claims possession
       adversely to a LL’s claim of breach or a written lease is by
       resort to judicial process (NO COMMON LAW SELF-HELP PROCESS FOR
       LANDLORDS)—The judicial process is the sole remedy available to
       the LL
       SHOULD THIS APPLY TO RESIDENTIAL LEASES & NOT JUST COMMERCIAL
       LEASES?
       2. some jurisdictions only apply this in a residential
       lease
       2.
       Surrender v. Abandonment
       -  Surrender Have an agreement b/w LL & T.  T
       surrenders the property & LL
       accepts.  Lease is terminated and LL can sue for any past
       due rent up to the point of the surrender
       -  AbandonmentA unilateral leaving of the lease by
       the T.  NO agreement b/w LL and T and the LL can bring suit for
       past due and future rent (does NOT suspend the duty to pay rent)
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