Constructive Eviction

Constructive Eviction is when a landlord makes a property so unlivable that the tenant feels they must leave. Quiet enjoyment is the right of an occupant of real property to enjoy and use the premises in peace and without interference. Quiet enjoyment is often an implied condition in a lease.

This is not to say there will be an absence of noise or interferences. The courts have allowed for the fact that there is a certain degree of disturbances in any dwelling. The disturbance can be as innocuous as a tv heard through "thin walls" or as dire as a broken air conditioning unit in Phoenix in July. These interferences do not create an issue if their duration is for a short time. It is when they are "uninterrupted" that threatens the quiet enjoyment of a tenant.

A common example of constructive eviction is the case of Johnson v. Cabrera. In the winter of 1994, the tenant was left without heat or water for 2 months. The New York Supreme Court ruled that a landlord’s failure to fix frozen pipes constituted a constructive eviction.

Because the loss of heat and water deprived the tenant of the beneficial use and enjoyment of the premises, a constructive eviction arose and the tenant was no longer obligated to pay rent.

Another case in which the tenant was granted constructive eviction was the case of Bocchini vs. Gorn Management Company. Carol Bocchini rented an apartment from the Gorn Management Company. Bocchini complained to the management company that her upstairs neighbor was causing excessive noise. The neighbor did not have carpeting in the her apartment so Bocchini claimed she could hear every footstep. She also complained that she could hear an alarm clock, television, radio and other various noises from the apartment. The management company refused to take any action.

Ms. Bocchini vacated the apartment and argued that all leases contain the implied covenant of quiet enjoyment. Her lease also included special covenants that contained a restriction against excessive noise or other offensive conducts.

Because of these covenants in lease, the court ruled that the management company did have a right to control the actions of the upstairs tenants. The court stated that these facts constituted a breach of the covenant of quiet enjoyment and supported the tenant's claim that she had been constructively evicted.

Several things must happen for a tenant to legally claim constructive eviction, thereby relieving him from the obligation to pay rent to the landlord.

1 - The acts of the landlord must be intolerable. The issue must be one which has a significant effect on the tenant's ability to use and enjoy the property.

2 - The tenant must serve the landlord with written notice of the constructive eviction

3 - The tenant must provide the landlord with a reasonable amount of time to cure the defects. If the landlord does not correct the defects within a reasonable amount of time, the tenant may then be able to leave the rental property and not be responsible for payment of rent which would have been due under the lease agreement.

4 - Usually the tenant must physically move out of the property and then sue for damages. If the tenant does not physically vacate the premises, technically there is no “eviction".

As with all legal issues, all parties should consult with an attorney to determine the best course of action for their specific situation.

If you are a tenant or landlord and need help with leasing a property, I can help!

- Courtesy of Diamondback Realty,


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