What is Constructive Eviction?

Written by: Alan Nochumson

Constructive eviction is a situation where the tenant’s use of the property is so severely hindered by something under the landlord’s control that a reasonable tenant has no choice but to leave.

As a tenant, it is important to be fully aware of the terms of agreement you enter upon signing your lease. When and how much rent is due, what utilities you as the tenant are responsible for, and the rules regarding the use of the property are just some examples. The landlord, meanwhile, is also responsible to uphold their end of the lease agreement and when they fail to do so, one of the ways a tenant can remedy the situation is through constructive eviction. Constructive eviction is a unique kind of eviction that is performed by a tenant rather than a landlord and is usually enacted as a last resort. While hopefully never faced with this experience, as a tenant it is important to know you have this option available to you and what it entails.

So, What Exactly is a Constructive Eviction?

Constructive eviction is a situation where the tenant’s use of the property is so severely hindered by something under the landlord’s control that a reasonable tenant has no choice but to leave. Common examples include the property having no heat in the winter, no electricity, or no running water. If constructive eviction is present, the tenant is relieved of his or her duty to pay rent and has no further legal obligations under the lease.

Does Constructive Eviction Apply to Your Situation?

Deciding whether constructive eviction exists is a decision that is highly dependent on the facts of the situation. While each state has its own laws, the general rule of thumb is that constructive eviction only applies if the unit has become uninhabitable as a result of the landlord’s negligence, and the landlord has been unresponsive when it comes to having repairs made. If you were to cause the issue that’s making your apartment unlivable, this option cannot be used. In addition, the problem with the property must be persistent and something the landlord can control. Therefore, an isolated issue with the electricity that’s due to issues with the power utility company will not result in constructive eviction.

What to Keep in Mind as a Tenant

Before utilizing constructive eviction to end a lease, as a client, there are several things to keep in mind. If not careful, you may have to deal with a commercial debt collection lawyer and getting sued for breach of contract. There will always be a risk that a court will not recognize constructive eviction. If that happens, the tenant could find itself having to pay the rest of the rent owed under the lease in one lump sum. Also, picking up and leaving the property in question may not be the most economical thing for you to do. For example, the lost profits that occur during a move to another property could result in a loss that is far greater than the amount that you must pay to fix the property itself.  Therefore, a tenant may want to consider the self-help remedies available under the lease. The lease might contain provisions that allow the tenant to fix the problem itself, then receive an offset on future rent as reimbursement. This may be far more economical than leaving the property.

Another important thing to remember about the constructive eviction process is that you should keep detailed records of everything. If you sent a complaint about the apartment to your landlord by certified mail, make sure you have the proof of delivery. Keep track of any conversations you have with local authorities, and any estimates you may get from contractors about the cost of the repairs. Take photos of the conditions that have made the apartment uninhabitable. With a constructive eviction case, the burden of proof is on you, and you need to show that your landlord violated their duties and that it had a significant effect on your ability to use and enjoy the premises. The judge will either support your claims, or you will be forced to pay the landlord any unpaid rent.

At Nochumson P.C., we are more than legal counsel. We are people serving our neighbors and community in Pennsylvania and New Jersey. Knowing that real communication between real people can help lead to real positive results, our team of attorneys are available 24/7 to help answer your legal questions and to fight for you with skill and fortitude, whatever the case may be. When you hire us, you can expect a sensible and cost-effective approach to legal counsel. We think fast, think ahead, and get things done. Contact us today or call us at (215) 399-1346 to see how we can represent you.