This seems to be a common question that landlords ask once it becomes apparent that they will soon have to evict their tenant. Landlords become concerned with possible damage being done to the apartment, and want to inspect its condition before the tenant moves out. But it’s important for landlords to understand that they DO NOT have the authority to enter their tenant’s apartment without the tenant’s permission, unless there is a specific reservation in the lease entitling them to do so, or unless exigent circumstances exist, such as pipes bursting or a fire, which would require immediate attention.

In general, in the absence of a reservation in the lease, a tenant has the sole and exclusive right to the occupation and control of the leased premises during his term, and a landlord has no right to enter the premises. However, a provision in a lease giving a landlord the right to enter the leased premises in order to make repairs may grant an absolute right of entry, depending on the language used in the lease (see 74 NY Jur. 2d, Landlord and Tenant § 247).

The Consequences of Entering a Tenant’s Apartment Without Permission

Absent a provision in the lease or express permission from the tenant to enter, a landlord entering a tenant’s apartment without permission may be held liable for trespass, and possibly even arrested for the crime of criminal trespass. The essence of a cause of action for trespass is the invasion of an individual’s interest in the exclusive possession of land (see Kaplan v Incorporated Village of Lynbrook, 12 AD3d 410, 784 NYS2d 586 [2d Dept 2004]). A landlord entering a tenant’s apartment without permission, absent exigent circumstances, would satisfy the elements required for this cause of action. Even one who enters the land upon the erroneous belief that he has the right to enter will be held liable in trespass (see Burger v Singh, 28 AD3d 695, 816 NYS2d 478 [2d Dept 2006]).

So landlords, think twice about entering your tenant’s apartment without express permission. Unless you have permission, you must wait until your tenant has permanently vacated, surrendered and returned possession of the premises to you (such as by returning the keys) before you are allowed to enter the apartment. Suspicion of damage or other conduct is not reason enough to violate your tenant’s exclusive right to occupy the apartment, regardless of whether the tenant has paid the rent or not.

James D. Murtha, Esq.

Author James D. Murtha, Esq.

I am a Managing Member at the Murtha Law Firm, LLC, and I am an eviction lawyer in Suffolk County and Nassau County, Long Island, New York. You can call me, right now at (631) 747-0356, and I'll be happy to speak with you for free about the New York eviction process.

More posts by James D. Murtha, Esq.

Join the discussion 3 Comments

  • Robert says:

    Thanks for the help

  • Sharon says:

    Our tenants are leaving sometime I August, no lease. They bought a house. We need to have other prospective tenants look at apartment. Cannot wait until they leave. No rent for August on… then need to work fixing the apartment

  • Great job! The essence of a cause of action for trespass is the invasion of an individual’s interest in the exclusive possession of land (see Kaplan v Incorporated Village of Lynbrook, 12 AD3d 410, 784 NYS2d 586 [2d Dept 2004]).

Leave a Reply