Avoid Seven Traps that Trigger Constructive Eviction Claims

When you sue tenants for not paying rent, there’s a pretty good chance they’ll counter with a “constructive eviction” claim. The argument: We don’t owe you rent because you constructively evicted us. To win the claim, tenants must prove that you did (or omitted to do) something that substantially interfered with their lease right to quiet enjoyment. That’s not easy. Mere inconvenience isn’t enough. To constitute grounds for constructive eviction, the problem must be so substantial that it renders the premises untenantable and unsuitable for the intended lease use. So, exactly what does "substantial" mean?

Court Cases Are Key

The best and only way to answer that question is to look at actual cases where courts had to decide whether a landlord was guilty of constructive eviction. Since you don’t have the time to dig up the cases yourself—or the budget to have an attorney do it for you—we decided to do the heavy lifting. While each case is different, we looked at a decade’s worth of case law and identified seven common traps landlords fall into that trigger constructive eviction claims.

Practical Pointer: Remember the rule: No surrender, no constructive eviction. Tenants can’t win a constructive eviction claim unless they surrender the premises. So, showing that the tenant didn’t vacate enables you to beat a claim without even getting to the substantial interference issue.

Trap #1: Barring or Obstructing Access

Constructive eviction means making it impossible for a tenant to use the premises the way it intended to in entering the lease. The most direct and obvious way to do this is by completely locking the tenant out. But even partial, temporary, and unintentional obstructions may cross the line.

Example: A New York court found that the erection of construction scaffolding at a store entrance limiting the access of the tenants’ employees and customers was constructive eviction [384 Columbus Ave. Associates, LLC v. 101 W. 78th, LLC, 2016]. (Note that in many similar cases, obstruction due to scaffolding has been found not to constitute grounds for constructive eviction where the lease contained express language allowing for building renovations and relieving the landlord of liability for inconveniences associated with it; see “Carve Out Reasonable Right to Scaffolding,” here.)

Trap #2: Making Harmful Structural Alterations

Permanent alterations can also amount to constructive eviction if they significantly reduce the value of the tenant’s use of the property. For example:

• A Delaware court ruled that erection of a guardrail blocking access from the public highway to the tenant’s gasoline station breached the covenant of quiet enjoyment because it deprived the tenant of a “valuable feature of the plot” [Checker Oil Co. of Del., 1977];
• The construction of a mini-mall around a formerly accessible dry-cleaning establishment drove away customers and reduced the utility of the property, said a Pennsylvania court [Pollock v. Morelli, 1976].

Trap #3. Depriving Tenant Use of Part of Premises

Constructive eviction may include not just physical obstructions but restrictions on using parts of the premises tenants thought they were leasing.

Example: Interfering with a café’s attempts to develop a courtyard area, lobby space, and other parts of the hotel covered in the lease definition of “Leased Area” was constructive eviction, a Florida court ruled [Banyon Tree Invs. LLC v. Guesch, Inc., 2014].

Trap #4: Causing Substantial Service Disruptions

Perhaps the most common form of constructive eviction violations are prolonged and substantial disruptions to building services, including:

• Heat and hot water;
• HVAC and air conditioning;
• Sewage and plumbing;
• Elevators, especially for tenants on high floors; and
• Building security (especially in urban areas and dangerous neighborhoods).

Trap #5: Causing Nuisances

Creating or failing to abate nuisances over a prolonged period may violate the covenant of quiet enjoyment, especially in restaurant, bar, hotel, retail, and other establishments frequented by the public. Here are some examples:

Odors: A Texas court held that the landlord’s failure to control odors during construction rendered the restaurant premises untenantable [Italian Cowboy Partners, Ltd. v. Prudential Insurance Company of America, 2011];

Noise: After nine months of futile complaints to and empty reassurances by the landlord, a furniture store was constructively evicted by constant noise and vibration from an aerobics studio next door, ruled a Florida court [Barton v. Mitchell Co., May 1987];

Infestations: A landlord’s failure to fix a rodent infestation in the basement over a 30-day period violated a fast food restaurant’s right of quiet enjoyment, ruled an Ohio court [Frisch v. Restaurant Management, Inc., 2015];

Mold: A Connecticut court said that a landlord’s failure to deal with the problem of mold caused by constant sewage backups constructively evicted an optical store tenant [Commerce Park Assocs., LLC v. Robbins Eye Care Ctr., P.C., 2018].

Trap #6: Failing to Control Third Parties

Problems amounting to constructive eviction are often committed not by landlords but their agents, such as contractors, as well as third parties that they’re in a position to control but don’t. Here are some examples:

• A New York court upheld constructive eviction after finding a landlord responsible for roof cracks, dust, debris, and other damage inflicted to restaurant premises by its excavation and demolition contractor [N.N. Intl. (USA) Corp. v. Gladden Props., LLC, 2016];
• A landlord’s failure to control cigarette smoke by a neighboring tenant gave an accounting office tenant justification to move out and claim constructive eviction, ruled a New York court [Herbert Paul, CPA, P.C. v. 370 Lex, L.L.C., 2005]; and
• A Texas court ruled that a landlord committed constructive eviction by failing to block pro-life protestors’ access to a medical clinic tenant on Saturdays when abortion procedures were performed [Fid. Mut. Life Ins. Co. v. Kaminsky, 1989].

Trap #7: Committing Cumulative Neglect

Arguably, the most significant and controversial constructive eviction case in recent times is the 2015 ruling in Sears, Roebuck & Co. v. 69th Street Retail Mall, L.P., starring an anchor tenant at a shopping center that the landlord had allowed to deteriorate for almost a decade. The ruling: Constructive eviction can be the result of not just discrete and big violations but also the general accumulation of a whole lot of little ones over time. Although Sears comes from Pennsylvania, courts in several other states have adopted its “constructive-eviction-by-a-thousand-cuts” approach. And by lowering the bar on proving constructive eviction, Sears and its progeny have spurred a renaissance of new tenant claims.

Takeaway: How to Protect Yourself

The good news about constructive eviction is that you can guard against it by addressing it in your lease. More precisely, you need to anticipate the things that can happen during the lease term that may give a tenant grounds for claiming that you breached its right of enjoyment. The most obvious example is new construction and the potential problems it poses to tenants by scaffolding, closing off building areas, re-routing traffic, noise, dust, debris, odors, and vibration. The key is to address these problems directly and specifically in the lease by disclosing that they’ll arise and securing the tenant’s agreement to not seek to hold you liable for constructive eviction when they do.

Further reading: See “Put Three Protections in Lease to Prevent Constructive Eviction Claims,” in this issue.