Constructive Eviction

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Landlords must offer and maintain fit and habitable rental housing, in all states but Arkansas. When they don’t keep the property up to par despite being given notice and a reasonable amount of time to make repairs, tenants may move out without responsibility for future rent.

In legalese, the landlord's failure to maintain the rental is known as a "constructive eviction" of the tenant. The reasoning is a bit tortured, but it goes like this: Having failed to maintain a habitable rental, the landlord has made it impossible for people to live there. Without physically removing the tenant, the landlord has indirectly removed him by making the rental unlivable. Once that happens, the lease has been broken by the landlord, and the tenant is free to move out, without lingering responsibility for future rent.  

Kinds of Constructive Eviction

Constructive eviction can result from negligent maintenance, or from intentional conduct. For example, a landlord who wants to pressure a tenant to leave might deliberately violate his tenant’s rights in order to make him so unhappy or uncomfortable that he has to leave.

Responses to Failure to Maintain the Property

When the issue is poor maintenance that results in unfit dwellings, many tenants have options other than to claim constructive eviction and move out. In many states, they can avail themselves of the following remedies:

  • Repair and deduct. Tenants fix the problem and deduct the cost from the rent.
  • Rent withholding. Tenants withhold the rent until the landlord takes care of the problems. Many states require tenants to work through the courts to accomplish this.
  • Lawsuits. Tenants may sue for their damages, such as the cost of buying a space heater while the furnace was broken.

Follow State Procedures Carefully

Before utilizing any of the remedies mentioned above, tenants must be familiar with their state law and its procedures when it comes to repair and deduct and rent withholding. Typically, tenants must give landlords written notice of the problem and time to fix it. State law may define the amount of time that the tenant needs to wait. With repair and deduct, state laws specify how much money the tenant can spend, and how often.

Tenants who do not follow the letter of the law are taking a big risk. With repair and deduct and rent withholding, they are paying less or no rent to the landlord. A landlord who thinks the tenant has used the remedy incorrectly or for a repair that was not needed may terminate the tenancy for nonpayment. If the tenant decides to stay and fight an eviction lawsuit, that's an expensive, grueling, and risky step. Be very sure that the repair problem is major, and that you understand your state's procedures, before paying less or no rent.

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