Constructive Eviction

Front 1

Constructive Eviction Rule

Back 1

Is found when the landlord, through an act or omission, substantially interferes with the tenants use and enjoyment of the property

Landlord's wrongful conduct substantially interferes with tenants use and enjoyment of the premises.

Front 2

Kaminsky Case

Back 2

Constructive Eviction
Does failing to prevent third party interference constitute wrongful conduct by the landlord? The rule about a landlord not being responsible for the third party only apply if the landlord does not permit the third party to act. But Fidelity themselves did not act and should have so they can't blame it on the third party. It wasn't the third party therefore; it was the failure to act of Fidelity themselves. It was the landlord's own omission.

Front 3

Constructive Eviction Elements

Back 3

1. The Landlord Intended to interfere with the tenants use and enjoyment of the tenant
2. The landlord substantially interfered with the tenants use and enjoyment of the property
3. The landlord permanently deprived the tenant of the use and enjoyment of the property
4. the tenant abandoned the premises within a reasonable amount of time

Front 4

Arguments for "The landlord intended to interfere with the use and enjoyment of the tenant

Back 4

Omission to perform promised repairs.
Awareness that repairs needed to be performed and still not doing it.
The repairs are necessary

Front 5

Arguments against "The landlord intended to interfere with the use and enjoyment of the tenant

Back 5

-No intention to deprive.
-Not enough money to repair, when he gets money he will repair
-Building codes are not violated - building codes require "bare minimum living standards" (things that a person can't live without)
Policy - Utilitarian
If landlord keeps repairs low in order to keep the rent low and therefore keeping his tenants from not being able to afford rent and end up homeless.

Front 6

Argument's for "the landlord substantially interfered with the use and enjoyment of the tenant

Back 6

the extent that the omission to fix repairs lead to tenants extreme discomfort.
examples; foul odor, bugs, interference with food, health and safety

Front 7

Arguments against "the landlord substantially interfered with the use and enjoyment of the tenant

Back 7

-the repairs that were requested to fix were not a big deal
-if the tenant doesn't move out then obviously it wasn't that substantial
-the tenant could have substituted for the repairs he needed to get fixed

Front 8

Arguments for "the landlord permanently deprived the tenant of the use and enjoyment of the property

Back 8

-omission to perform promised repairs
-omission caused non-usable elements of the house
-he only stayed living at the house because of his personal attachment to the home "personhood theory" policy.

Front 9

arguments against "the landlord permanently deprived the tenant of the use and enjoyment of the property

Back 9

-lack of intent moving out of the property

Front 10

arguments for "the tenant abandoned the premises within a reasonable amount of time"

Back 10

tenant must move out. This argument helps prove "permanent deprivation" and also satisfies the fourth element of constructive eviction

Front 11

Implied Warranty of Habitability Rule

Back 11

the lease implied warrants that the living premises will be safe and fit for human habitation

- otherwise high burden of proving constructive eviction

Front 12

Objective v. Subjective approach to Implied Warranty of Habitability

Back 12

Objective: building codes
Subjective: whether the premises are safe and fit for human habitation

Front 13

Wrongful

Back 13

-Landlord fails to perform an obligation in the lease -fails to adequately maintain and control common area.
-breaches statutory duty owed to the tenant
-fails to perform promised repairs
-allows nuisance like behavior

Front 14

Procedural Steps

Back 14

-notify the landlord
-give the landlord a reasonable amount of time to fix the problem
-must vacate the problem
-this is risky because you have to vacate but you may be liable for rents

Front 15

Remedy

Back 15

Withhold rent
repair and deduct
sue for damages