How to Avoid a Constructive Eviction Claim From a Tenant

How to Avoid a Constructive Eviction Claim From a Tenant

During the last few months, when legal evictions were not allowed, we heard more owners propose actions that should be discouraged no matter if a tenant is delinquent or current. The utilization by tenants of the legal concept of constructive eviction reflects poorly on all landlords. Actually considering to use the concept to create a vacancy at a time where evictions are not allowed (i.e. COVID 2020) may end up putting some landlords into far more expensive legal and local problems. Constructive eviction should be avoided no matter what you may read or hear.

Just the words constructive eviction sound like a positive outcome. Warning – it’s not! It is a legal term and it means a landlord/owner is failing to fulfil their legal duties.

Discussion of constructive eviction at a time of eviction moratoriums is not the normal use of the concept. In fact, constructive eviction offers tenants rights which they may choose to take based on the landlords actions (or lack thereof).

What Does a Constructive Eviction Claim Mean to the Landlord

A successful constructive eviction claim will allow your tenant to vacate your rental and stop paying rent. All with no penalty to the tenant. It’s usually more important to be a good landlord owner, than to lose a tenant to the legal concept of constructive eviction.

Is the loss of a paying customer worth it?

Common Examples of Constructive Eviction

The most common example occurs when a landlord pays some or all of the utilities. If a tenant has stopped making their rent payment, the owner may determine that turning off the utilities is a fair way to respond. Or the owner is short on funds and decides to tell tenants that utilities are now their responsibility. If such an action is taken, the landlord has placed themselves directly as a target for a constructive eviction claim. Maybe they want the tenant to vacate. If they do and successfully claim constructive eviction, the owner will never be paid another cent of rent.

Another common example is an owner who refuses to make necessary repairs whether or not the tenant is current in their rent. While in many states the tenant still is responsible to pay the rent no matter the circumstances, it is widely regarded as unlawful for a landlord to not address maintenance that can affect the health of the occupants. Examples would include mold from a roof leak or a backed up sewage system when it is backing up into the related fixtures. The tenant may vacate and claim constructive eviction and break the lease.

What Must A Former Tenant Prove To Be Successful in a Constructive Eviction Claim?

  1.  The landlord violated the tenant’s warranty of habitability. This warranty applies to issues like the heat or mold mentioned above.
  2.  The landlord neglected the tenant’s right to quiet enjoyment. This means the landlord is somehow interrupting the tenant’s ability to enjoy the rental.
  3.  The landlord was given notice by the tenant of the neglect or violation of their quiet enjoyment. The landlord fails to resolve the issues.
  4. The tenant vacates the property within a reasonable amount of time after the landlord’s failure to fix the issue.

How To Avoid The Costs Of A Claim

So now you understand what might happen the next time you don’t respond to your tenant. A successful claim will need legal assistance so a tenant can’t just send the landlord an email and make the claim. They are still attempting to break a legal agreement (their lease). Ultimately a Judge will make the final decision. If the landlord loses, almost certainly they will pay legal costs for both parties.

Your property manager will do everything they can to avoid an owner getting stuck with one of these situations. Ultimately though, the property manager needs an owner who shares the same objectives for their tenants. Always take prompt action when there are maintenance or repairs at your properties. And respect your tenants privacy. After all, how would you like it if you felt like a nosy landlord was checking in on you a little too often?

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