Constructive Eviction

Constructive eviction occurs when a residential rental property is in such disrepair or when a condition exists on the property that makes it impossible or extremely difficult to live there. The property is then said to be “uninhabitable.” The condition makes the property unsuitable to live in, forcing the tenant to leave the property. When a residential property is uninhabitable, it creates a condition under which the tenant has been constructively evicted; the facts and circumstances are such that the tenant is unable to have full use and possession of the rental property and thus, in reality, has technically been evicted.

What are some examples of constructive eviction?

Common examples of a possible constructive eviction where the conditions are so bad that the tenant leaves the rental include:

• shutting off the utilities;
• refusing to clean up an environmental hazard;
• blocking the entrance to a unit;
• refusing to fix a leaky roof, causing damage to walls;
• removing toilets or sinks;
• changing the locks.

How to Claim Constructive Eviction

To claim constructive eviction, the tenant must serve the landlord notice in writing of the constructive eviction and provide the landlord with a reasonable period of time to clear up the problem. While it is necessary to give the landlord a chance to remedy the problem, this does not mean that the problem has to be repaired within 24 hours. Some repairs will obviously take longer, such as a gas or water leak, but the repair must be done within a reasonable period.

Where there are poor living conditions, it would be wise for the tenant to take photographs and have third-party inspectors view the property. Third-party inspectors would be the local health department as well as the building and permit department.

What are the rights of the tenant in a case of constructive eviction?

If the landlord does not remedy the conditions within a reasonable time after he or she has been given notice, the tenant may then be able to leave the rental property and not be responsible for payment of rent which would have been due under the lease or rental agreement. In most cases, the tenant must physically move out of the property and then sue for damages, termination of the lease, etc.