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Constructive Eviction

Many commercial tenants that fail to pay rent because the premises are not “up to snuff” operate under the mistaken impression that they can continue to operate the business and defend their failure to pay rent by simply alleging that the landlord deprived them of the use of the premises. As the lady in the commercial says, “that’s not how any of this works!”

The essence of such a defense by a tenant relates to the condition of the premises, or its habitability. For example, if there is no heat in the winter, or if the premises are sweltering in the summer months, and HVAC is an item the landlord is supposed to provide under the terms of the lease, but despite having notice and an opportunity to correct the problem, has not done so; or the premises flood every time it rains; then the tenant may have a basis to complain that the rent it is paying exceeds the rental value of the premises the landlord is providing. That inquiry, of course, is fact-based, and the court would have to make specific findings to determine the appropriate remedy.

To prove constructive eviction (the term used to describe the circumstance in which a landlord either does something or fails to do something that he or she has a legal duty to provide, rendering the property uninhabitable), the tenant would have to show that the landlord has deprived the tenant of the beneficial enjoyment of the premises, and that the condition complained of is permanent in the sense that it will continue and likely worsen if the landlord fails to remedy the situation. However, the tenant will lose the right to claim constructive eviction if it fails to vacate the premises within a reasonable time. If the tenant remains on the premises, it may still, however, claim a partial abatement of rent and damages.

The key to successfully bringing, or defending, a claim of constructive eviction is to document one’s file as completely and thoroughly as possible.

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