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What is Constructive Eviction?

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  • Written By: Michael Pollick
  • Edited By: Niki Foster
  • Last Modified Date: 29 March 2014
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The relationship between landlord and tenant can become a little complicated at times. Usually, the terms of a written lease provide legal protection for both sides, but in the real world, a piece of paper isn't always the final word. Some landlords can render a property so uninhabitable that tenants feel a strong obligation to move out before the end of the lease. The use of such tactics to illegally, or at least unethically, force out unwanted tenants is called constructive eviction.

Constructive eviction is actually the legal determination made after an offensive situation has occurred. For example, a tenant signs a 12-month lease for a one-bedroom house. He may pay his rent to the landlord faithfully for nine months. What the tenant may not know is that the landlord now wants to sell the house and property to a commercial developer for a significant profit. Under the terms of the original lease, the tenant is entitled to enjoy the use of that home for at least 12 months. What happens during the tenth month may determine whether or not a constructive eviction has indeed occurred.

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During the tenth month of the lease, the landlord hires a company to tear out the driveway of the rented house, forcing the tenant to park on the street. While this may be an inconvenience, the house itself is still considered habitable. If the landlord decides to cut off the water supply or refuse to fix a heater, however, then the tenant may begin to have some legal leverage against the landlord. He must point out the problem to the landlord and provide a reasonable time for the necessary repairs.

If enough time elapses and the water or heat is not restored, the tenant can legally move out and not pay the remainder of the rent. By rendering the house uninhabitable, the landlord has effectively 'evicted' the tenant without going through the proper legal channels. This should be considered constructive eviction, although a judge or mediator may have to make that judgement in a later legal proceeding. In this specific case, the landlord would be less likely to sue the former tenant for breach of contract, since the landlord could still benefit from the sale of the property.

Constructive eviction is considered an illegal tactic, since the landlord deliberately creates subhuman conditions for his or her tenants. Other violations of the lease can also be construed as constructive eviction, such as not providing 24-hour notice before entering a tenant's apartment. Sometimes, a collection of lesser violations can be considered constructive eviction when viewed as a whole.

One important element when trying to claim constructive eviction is documentation. A tenant must vacate the premises before filing a claim of constructive eviction against the landlord. Before leaving, however, the tenant should take photographs or video footage of the property as it looked at the time of vacancy. Professionals may also be hired to inspect the premises for evidence of dangerous living conditions. Environmental tests can also be performed to demonstrate any biohazards. In many landlord/tenant disputes, a judge or mediator must be convinced that a constructive eviction has indeed occurred.

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Discuss this Article

katz28
Post 12

Is it legal to evict someone because they want to sell the property but then only after re-furbishing they lease it again?

anon210661
Post 10

I'm not a legal expert, but there is a difference between "constructive eviction" and being an inattentive or bad landlord. If the basement property was a rentable space and the landlord rented it to some less desirable tenants, he or she has done nothing illegal. You may not like the things those tenants do, but that's not the landlord's problem if they are there legally. He or she didn't bring these people in to deliberately sabotage your own living situation. Unhappiness with a new neighbor is not considered constructive eviction, just unfortunate for you. The landlord himself is not forcing you to move out.

The lack of repairs might be considered constructive eviction, if you knew for a certainty that your landlord wanted you to leave before your lease was up. I've had landlords myself who dragged their feet when it came to timely repairs on essential items, but their problem was more about economics or a lack of repair skills than bad feelings towards their tenants. Constructive eviction is more obvious when the landlord definitely has the means and ability to fix major problems and chooses not to do it. Sometimes a decent landlord can't get an immediate appointment with a professional repairman, or a vital part may have to be ordered. This is not constructive eviction, just the reality of repair work.

On the other hand, if other problems already exist between the tenant and the landlord and those repairs are not addressed at all, then the tenant may have grounds to claim constructive eviction if the landlord does decide to start legal eviction proceedings.

anon154399
Post 9

We just moved into a house that has a basement underneath and when we moved in it was vacant. We moved in November 5 and the third week of January a couple moved in below us. They smoke in the house and play loud music until late at night and we have four small children that we fear for.

The landlord will do nothing to remedy this and we are left with loud bass music and a house filled with smoke. We are having to move because of this. Is this a constructive eviction? The landlord also refuses to fix anything also. Our heater, shower and drains are all not working at all and the owner will do nothing to fix this.

anon151880
Post 8

I am a tenant who rents from month to month, have paid my monthly rent timely, and has never been a problem to the other tenants or landlord, but the landlord or property owner and their workers has confronted me, making remarks that my guest is sleeping with the other tenants of the property, which I know to be untrue. But even if my guest has committed such an act, what would it mean to the landlord or property owner or their workers? Although this put my guest in a very bad false light.

anon127906
Post 7

in response to answer 1 the next step is to file a notice of eviction with the local court or police department. however, in most courts the tenant would inure possession of the premises for failure to provide a notice to cease, then a 30 day notice with the local court system.

Failure to do that would allow your tenant to collect monies for landlord harassment. Remember if you evict for any other reason than non-payment of rent you must have witnesses and not just your own grandiose perceptions of what law a tenant may be violating.

In the court of law they have already proven "if the glove don't fit you must acquit."

anon56870
Post 6

All of my writing here is just off of the top of me head and not meant to be legal advice, just layman knowledge.

If they aren't paying rent, look into evicting them of course. What is the agreement in your lease for this situation? Express terms in a lease are important. You can also look into a summary proceeding whereby courts quickly determine whether or not the tenant can be kicked out very quickly.

Make sure you haven't broken the warranty of habitability or housing codes in your state though or you may be liable for damages.

Be sure to always check with a lawyer. Good luck!

anon49961
Post 5

I posted several complaints about roaches, and my garage flooding, creating mold in the garage to my landlord. I have lost many clothes and linen and rugs. I was evicted for not paying my rent. I counter claimed for constructive eviction. I have a city report that cites possible structural damage to the garage. Is the landlord responsible for a building defect, mold, or roaches?

anon41769
Post 4

I have been without hot water for 12 days, as landlord has not paid utility bill. I have no lease. Can I vacate wihout notice? Can I sue for part of my rent, etc.?

anon37170
Post 3

i rented a house in stone mounatin ga, the landlord would not fix the HVAC unit. I broke my lease and am taking them to court. I have several HVAC companies to come and evaluate the system. Three of the companies stated the hvac system was a piece of trash. It continued for two additional months. I purchased a window unit and lived in one room for two months. The third month i moved, The house temp reached 104 +

Aliebrahimi
Post 2

Hello.

I have rented a Condo in rockville and I have been living here since last september. before we sign a contract, the management told us that on January there is going to be 3 or 4 days construction(In order to build a balcony in the unit). By January another Company bought the building. They sent us a letter saying that they are gonna start the process in a few months. For the past 3 weeks everyday they are working the business hours and there is so much noise in this building that has made it difficult for us to live here. My question is that if i break the lease will i be able to get my security deposit back. Is this a Constructive evict? Regards

Ali

anon2162
Post 1

What is the next step when a renter refuses to obey a 30 day notice?

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