'Toxic' Odor Didn't Constructively Evict Tenant

March 1, 2006

An office lease was due to expire in April 2006. In the summer of 2003, the tenant began to notice a “toxic” odor permeating its office. The tenant complained to the owner about the odor, but the owner was unresponsive. The tenant moved out in 2004. In May 2005, the owner relet the space. The owner then sued the tenant for rent owed between May 2004 and April 2005. The tenant argued that it wasn't liable for the unpaid rent because the owner had “constructively evicted” it—that is, the owner's failure to eliminate the odor was tantamount to an eviction.

An office lease was due to expire in April 2006. In the summer of 2003, the tenant began to notice a “toxic” odor permeating its office. The tenant complained to the owner about the odor, but the owner was unresponsive. The tenant moved out in 2004. In May 2005, the owner relet the space. The owner then sued the tenant for rent owed between May 2004 and April 2005. The tenant argued that it wasn't liable for the unpaid rent because the owner had “constructively evicted” it—that is, the owner's failure to eliminate the odor was tantamount to an eviction.

A New York court ruled that the tenant couldn't prove that it had been constructively evicted, and so was liable for the unpaid rent. The tenant should have vacated the space within a reasonable time after noticing the odor. But instead, it waited at least nine months to vacate. That delay proved “the alleged odor was not so noxious” as to deprive it of the use and enjoyment of the space, said the court. Plus, although the tenant claimed it sent three complaint letters to the owner, it couldn't produce return receipts for them. The court noted that the tenant had never tried to contact the managing agent about the odor. Also, there was no proof that the tenant lost business or suffered any other loss because of the odor, or that the tenant couldn't carry on its business [S. Klein Family, LLC v. Platform, LLC].

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