Constructive Notice and Eviction

The law requires that landlords provide a safe and habitable environment for renters.  In addition, landlords are required to maintain that standard of repair and safety throughout the rental period.  If they do not do so, there are options such as constructive eviction to protect the tenant’s rights. 

Defining Constructive Eviction

Constructive eviction law generally allows this process for two reasons:

• A landlord has failed to maintain their rental property in a safe and habitable manner and the tenant must vacate the property
• A landlord wishes to force a tenant out of their property and takes measure to make the property uninhabitable

In the first case, a tenant has the right to break their lease and leave the property early to protect themselves and their family.   They may then file a claim under constructive eviction law either as an offensive or defensive measure. 

The second case is illegal.  A landlord does not have the right to use constructive eviction to break a lease without due cause for their own ends.

Claiming Constructive Eviction

If rental property falls into disrepair, a tenant’s first responsibility is to inform the owner and expect repairs.  If repairs are not forthcoming and the property becomes unlivable, the tenant may vacate.  If the landlord sues for nonpayment of rent for the remainder of the lease, the tenant may claim constructive eviction, citing the constructive notice they gave when requesting repairs. 

It is important to note, however, that the courts are very strict in interpreting what is habitable and what is not.  It is advisable to have the property inspected or provide pictures of the disrepair when pursuing constructive eviction, and to consult an attorney before attempting this defense.

Constructive Eviction Legal Help

Constructive eviction law requires that a tenant vacate rental property before making this claim, so it is vital to be able to prove both that the property was uninhabitable and that the landlord received constructive notice of the defects.  A real estate lawyer can provide the kind of advice a tenant needs to pursue this type of legal claim.