Is Failing to Curb Noisy Tenants Grounds for Constructive Eviction?

There are two ways to evict a tenant: (1) “Actual eviction,” or going to court to get an eviction order, is the proper way; and (2) “constructive eviction,” or doing something so egregious to interfere with the tenant’s business that it forces the tenant to leave, is the other way—one you want to avoid at all costs. The term “constructive eviction” is misleading since the tenant actually decides to leave without being ordered to. But while the “eviction” is a legal fiction, the legal consequences are very real. Being constructively evicted gives the tenant the right to get out of its lease without paying rent and/or sue you for damages.

The good news is that in a court case, tenants must prove that they were constructively evicted. Among other things, the tenant must show that the owner interfered with its “right of quiet enjoyment”—the covenant in the lease, whether implied or express, guaranteeing the tenant’s right to possess and use the property for its intended purpose without undue disturbance.

Changing a tenant’s locks and deliberately cutting off its power are obvious examples of actions that interfere with a tenant’s right of quiet enjoyment. But constructive eviction can also be more subtle. One way owners can cross the line is by failing to keep neighboring tenants from disturbing the tenant. The following cases illustrate the principles courts consider in deciding if an owner’s failure to curb disturbances from a neighbor violate a tenant’s right of quiet enjoyment.

Noisy Neighbor = Grounds for Constructive Eviction

Facts: A Florida patio furniture store tenant complains repeatedly to the shopping center owner about the constant noise and vibration coming from the aerobics studio next door. The owner promises to take care of the problem but never does. After nine months of waiting, the tenant decides enough is enough and moves out. The owner sues the tenant for the remaining rent. The tenant argues that it was constructively evicted.

Decision: The Florida Federal District Court rules that the tenant didn’t have to pay the rent because it was constructively evicted.

Explanation: The owner’s failure to control the noisy aerobics studio constituted constructive eviction, said the court, because:

• The noise and vibration “made it difficult, if not impossible” for the tenant to run its business and led to the loss of customers and salespersons;
• The owner was notified repeatedly and was in a position to control the problem but never did;
• The tenant waited a “reasonable time” for the owner to act before deciding to move out; and
• The lease clause relieving the owner of liability for damages caused by the owner’s failure to perform lease obligations was irrelevant because the tenant wasn’t asking for damages but termination of the lease as a result of the owner’s breach of its right to quiet enjoyment [Barton v. Mitchell Co., May 1987].

Noisy Neighbor ≠ Grounds for Constructive Eviction

Facts: A tenant clears out of its New York City Tae Kwon Do studio about three years into its 10-year lease. The owner sues for the remaining rent. The tenant claims that it’s been constructively evicted, citing the owner’s failure to control noise from a neighboring tenant that allegedly interfered with its quiet enjoyment and use of the studio.

Decision: The New York trial court rules that the tenant wasn’t constructively evicted and was still on the hook for the rent.

Explanation: Unlike the furniture store in Barton, the tenant in this case couldn’t prove constructive eviction, because:

• There was no evidence that the tenant had ever complained to the owner about the noisy neighbor;
• The lease said the owner wasn’t liable to the tenant for violations of building rules committed by other tenants; and
• The tenant was behind on rent before it vacated and the lease specifically required the tenant to pay rent in full “without set off or deduction of any kind whatsoever,” including for breach of quiet enjoyment [Alpha Holding Corp. v. Brescio, April 2009].

In a Nutshell

An owner’s failure to prevent loud noises and other disturbances by neighboring tenants can be grounds for constructive eviction if the tenant can show that:

• The neighbor’s disturbances substantially interfered with the tenant’s right of quiet enjoyment;
• It notified and gave the owner a reasonable opportunity to fix the problem;
• The disturbances ultimately forced it to leave the premises; and
• It didn’t waive its right to bring a constructive eviction action against the owner.

To help reduce the chances a tenant will claim constructive eviction, include language in the “quiet enjoyment” section of your lease indicating that you’re not responsible for actions of other tenants that may interfere with a tenant’s quiet enjoyment and that such actions by neighboring tenants are not grounds for constructive eviction. Ask your attorney about adding this language to your leases:

Model Lease Language

Under no circumstances shall Owner be held responsible for disruption or disturbances to Tenant’s right of quiet enjoyment herein that are caused by actions taken by other tenants, their employees, contractors, agents, representatives, customers, clients, guests, or visitors that are not entirely within Owner’s direct control, and any such actions shall not constitute a constructive eviction of Tenant nor confer on Tenant any right to set off or withhold rent or any other remedy of any kind against Owner.

For more on this topic, see "Put Three Protections in Lease to Prevent Constructive Eviction Claims," available to Insider subscribers here.