Constructive eviction is a term that is used in property law to describe a removal action that a landlord takes against a tenant. Unlike an actual eviction, a constructive eviction occurs without physically or legally removing the tenant from the property. In a constructive eviction, instead of the landlord removing the tenant from the property, the landlord breaches (breaks the agreement) the implied covenant of quiet enjoyment, thereby constructively evicting the tenant.
In property law, quiet enjoyment refers to an implied (unwritten) promise written into the lease agreement that the tenants will be free of disturbance and interference with their right to use the leased property. In short, when the landlord fails to make the property habitable, or usable in the case of commercial property, the landlord has thereby constructively evicted the tenant from the property.
Actions that lead to a constructive eviction
The tenant is constructively evicted when the landlord commits the following actions:
- Failing to make a major repair, leaving the premises unfit for occupancy (i.e., roof, pipes, heating and cooling system, etc.).
- Changing the locks.
- Removing the toilet and or sink.
- Failing to furnish a sanitary restroom.
- Blocking the entrance to the premises.
- Improper action by the landlord (e.g., harassment, insults, unreasonable demands).
The above are just a few ways a landlord's failure to make the necessary repairs leads to the constructive eviction of the tenant.
When a landlord's action substantially interferes with a tenant's covenant of quiet enjoyment of the rental property, it's the tenant's obligation to give the landlord written notice of the problem. The exact time that notice must be given depends on the jurisdiction. This is an important step in civil procedure, so if you are the insurer or the recipient of the notice, consult with an attorney to ensure the notice is properly laid out. Once the tenant has given notice within a reasonable time, the landlord will also need a sufficient amount of time to cure the problem (the time period is also based on jurisdictional rules).
Vacate the premise
If the landlord fails to remedy the problem that triggered the tenant’s notice, the tenant has the right to vacate the premises without paying the balance of the rent owed or giving the landlord 30 days' notice. Another legal remedy for a tenant in this situation is to file a civil claim against the landlord.
Millionacres bottom line
When a landlord enters into a lease agreement with a tenant, there is an implied covenant of quiet enjoyment written into the lease. When the landlord fails to adhere to this lease obligation and thereby constructively evicts the tenant, the tenant can vacate the premises. Since this is a possibility for any landlord, the landlord should keep their rental property habitable. If for some reason the premises become inhabitable, the landlord should consult a competent advisor immediately to avoid the possibility of breaching any legal duty. This is an important step because the goal of every landlord is to produce a passive income; this goal could be substantially impacted if landlords hold property that is in disrepair.