Constructive Eviction

The disturbance, by a landlord, of a tenant's possession of premises that the landlord makes uninhabitable and unsuitable for the purposes for which they were leased, causing the tenant to surrender possession.

Constructive eviction arises when a landlord does not actually evict but does something that renders the premises untenantable. This might occur, for example, where a tenant vacates an apartment because a landlord turns off the heat or water.

The term is also used to mean the breach of a Covenant of Warranty and Quiet Enjoyment of real property, which prevents a purchaser from obtaining possession of property due to the existence of a paramount claim of title.

Cross-references

Landlord and Tenant.

constructive eviction

n. when the landlord does not go through a legal eviction of a tenant, but takes steps which keep the tenant from continuing to live in the premises. This could include changing the locks, turning off the drinking water, blocking the driveway, yelling at the tenant all the time, or nailing the door shut. (See: constructive)

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References in periodicals archive

constructive eviction. (269) However, the court determined that

(306) The court explained that constructive eviction

discrimination, which does not amount to constructive eviction, may

pre- and post-acquisition phases except for constructive eviction

A Herculean leap for the hard case of post-acquisition claims: interpreting Fair Housing Act section 3604(b) after Modesto

Nevertheless, it is difficult, in our experience, for a landlord to preclude, on summary judgment, a claim of constructive eviction based solely on a lack of written notice.

Giving proper notice under REBNY Form Commercial Lease

The doctrine of constructive eviction is based on the fundamental principle of failure of consideration: If one party to a contract is materially deprived of the benefits of the contract by the other party, the first party in turn may correspondingly suspend performance.

Friedman on Leases [section] 29.4 argues that New York's equation of the doctrines of constructive eviction and breach of quiet enjoyment, while longstanding, is a mistake, founded on sloppy language in some old decisions.

The conceptual basis for permitting landlords to thus pre-condition the quiet possession covenant is that such a precondition is simply analogous to a parallel principle and potential trap for the unwary tenant - in the doctrine of constructive eviction, the principle of "election of remedies." See, e.g., Roma Shopping Plaza, Inc.

305 East 63rd Street Associates, where a commercial tenant (a) filed an answer in an L&T proceeding, defending its refusal to pay rent based on constructive eviction, and (b) then, the next day, filed a Supreme Court action for damages for constructive eviction.

Limiting the commercial tenant to minimum right of quiet enjoyment

In brief, the requirements for a constructive eviction defense are as follows:

Recently, the strictness of the constructive eviction doctrine has been eased in one respect: the Court has recognized a tenant defense of partial constructive eviction, where a discrete portion of the premises is rendered untenantable, and is vacated by tenant.

The foregoing suggests a practical question: is there something the landlord can add to the no-offsets clause in order to cut off (or subject to some condition precedent, such as by requiring specific advance notice) a defense of constructive eviction? In view of the theoretical basis of the constructive eviction doctrine, i.e.

Interpreting the no-offsets and waiver of counterclaims clauses