In the landlord tenant relationship, there exists the implied covenant of quiet enjoyment. This means that tenants (both residential and commercial) have the right to the undisturbed use and enjoyment of the property without interference from the landlord or someone else claiming to have paramount title. If you spot a possible constructive eviction issue, make sure to state that tenants have the right to quiet enjoyment and use of the premises before digging into the analysis. I want to note that the following guidance is most helpful to those at national law schools and UBE takers. If your school studies local law, you should keep an eye out for any variances.
So, how can the landlord mess this up?
The landlord could breach the covenant by wrongful eviction. There are three types of eviction.
· First, actual eviction is expulsion of the tenant from the entire premises by the landlord, someone claiming to have paramount title or a hold-over tenant (someone whose lease has expired but is overstaying their welcome). If the facts of your hypo suggest actual eviction, the tenant is relieved of their duty to pay rent altogether.
· Second, a tenant is partially evicted when they are deprived of part of the lease premises. Like actual eviction, the tenant is being physically excluded. For example, a tenant leases an entire floor of an office building. During the course of the tenant’s lease, the landlord decides to renovate the western facing office spaces. As a result, the tenant cannot access four of the offices that they are otherwise entitled to use and currently pay rent for. Partial eviction by the landlord terminates the tenant’s obligation to pay rent even if the tenant’s possession of the remainder of the premises continues.
· Third, constructive eviction occurs not when the landlord physically deprives the tenant of use of the premises (like in actual or partial eviction) but so significantly interferes with the tenant’s use and enjoyment of the property that the premises are unfit for occupancy. Note that a constructive eviction claim is available to both residential and commercial tenants (unlike the implied warranty of habitability, which is reserved for residential leases). An example of constructive eviction would be a lack of running water.
What does a tenant need to show for a claim of constructive eviction? Make sure to include the following elements in your response:
· The landlord has breached the implied covenant of quiet enjoyment through her actions or failure to resolve a problem.
· The landlord's breach substantially interfered with the tenant’s use and enjoyment of the property. This deprivation must be material. As discussed above, such interference would be something as drastic as no running water, no electricity or excessive flooding. The substantial interference analysis could be fact specific. For example, for an outdoor restaurant, a lack of air conditioning may not qualify as substantial interference but no AC for a tenant operating a hospital sure would.
· The tenant should notify the landlord of the problem and after a reasonable amount of time, the landlord has failed to rectify the problem. The idea is that the landlords are not expected to be psychic. The tenant needs to tell the landlord what is going on. However, a tenant cannot send an email and then vacate the premises after five minutes of no response back. Again, this will likely be a fact intensive inquiry in your hypo.
· The tenant must vacate the premises after the landlord has failed to fix the issue after a reasonable amount of time. Staying for an unreasonable amount of time after claiming the premises cannot be occupied could jeopardize a tenant’s claim for constructive eviction. For residential tenants, this is a key difference between a claim for the breach of the implied warranty of habitability and one for constructive eviction.
Once the constructively evicted tenant has left the premises, the tenant may terminate the lease and sue for damages.
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