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, please
contact one of our experienced agents below:
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Claudia Jordan
Associate Broker, GRI
Investment Specialist
Claudia’s Bio
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Kim Grant
REALTOR®, CRS, ABR
Kim’s
Bio
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