A reader recently asked me to write an article on what would be deemed a constructive eviction and what would a tenant’s chance be of getting out of a lease based on such a defense when the landlord does not maintain the property as it should. Unfortunately, the rule for determining what constitutes a constructive eviction does not assist much in determining whether a constructive eviction has occurred. A tenant, however, is not without options.

When Does a Constructive Eviction Occur?

A tenant will be deemed to have been constructively evicted from its premises if the landlord fails to provide a service that it is legally obligated to provide, or the landlord or a third party engages in an activity that the landlord has a duty to prevent, and such act or omission renders the tenant’s premises uninhabitable or the use and enjoyment of the tenant’s premises is so interfered with so as to justify an abandonment. In other words, it depends. It depends on whether the landlord has failed to undertake its express or implied duties under the lease. It depends on whether the landlord’s behavior has so interfered with the tenant’s enjoyment of its premises that the tenant is justified in abandoning its premises. It depends on whether the tenant can interpret an ambiguous and convoluted rule that only a few lawyers and judges can understand. Unfortunately, there is no black and white guidance for determining a constructive eviction situation as it depends on the facts of each case.

Regardless, a tenant cannot make the claim that it was constructively evicted unless it actually abandons its premises and unless it does so within a reasonable amount of after the occurrence of the act or omission that gave rise to the constructive eviction. A court will have a difficult time finding that the conditions in the tenant’s premises are so intolerable so as to justify a constructive eviction defense if the tenant continues to occupy its premises for an extended period of time after the alleged constructive eviction occurs, and the tenant will be precluded from raising such a defense if it never abandons its premises.

What is a Tenant to Do?

Unfortunately for tenants, a constructive eviction defense is a gamble. If a tenant is successful, the tenant will not be liable for any rent that is due under the lease after the occurrence of the eviction. If the tenant is unsuccessful, however, the tenant will either be paying on two leases as the tenant will be obligated to find a replacement premises once it abandons the existing premises, or the tenant will be required to pay its first landlord substantial damages for defaulting on its lease covenants. A tenant must ask itself if the conditions at its current premises are so unbearable that it is willing to take the landlord to court to get out of its lease.

A tenant does have other options. First and foremost, a tenant should communicate its issues with the landlord and it should do so in writing. The tenant should give the landlord a timeframe for when the issues need to be resolved, and should notify the landlord that the tenant views the landlord’s behavior as a default under the lease. The tenant should also review the lease terms to determine if the tenant can cure the default and offset any costs that it incurs against future rent payments. Finally, a tenant can bring the landlord to court without having to abandon its premises and can either seek damages from the landlord or seek an injunction prohibiting the landlord from undertaking any such activity in the future.

Success Stories

In making its decision as to whether a tenant should bring a constructive eviction defense, it should consider the types of circumstances where courts have found that a constructive eviction has occurred. The following are some examples of tenants who were successful in raising a constructive eviction defense:

• A tenant was deemed constructively evicted when a landlord failed to fix a leaky roof and defective plumbing, both of which the landlord was obligated to maintain under the lease terms.
• A tenant was constructively evicted when a landlord failed to provide sufficient heating during the winter months.
• A tenant that operated a bakery was constructively evicted due to rats being “abundantly and persistently present” in its premises. The rats had repeatedly eaten the tenant’s baking supplies.
• A tenant was constructively evicted when the landlord failed to provide sufficient heat or adequate elevator services to an eighth floor apartment.
• Two tenants were constructively evicted from their residential apartment due to an infestation of bedbugs coming from other apartments in their building.

The courts created a constructive eviction defense to help tenants escape intolerable lease conditions and not to remedy minor violations of the lease covenants. If such conditions exist for a tenant, this defense provides a great tool for tenants who no longer want to tolerate such conditions. The defense, however, should only be used in limited circumstances as the consequences of a failed defense can be disastrous.

DISCLAIMER: This article is to be used for general information purposes only, not as a substitute for in-person evaluations. The information contained herein is not legal advice and no attorney-client relationship is formed through this article.