Constructive Eviction

Web Admin - Thursday, February 18, 2016

Constructive Eviction by Phil Klass, Managing Partner of Klass Law Group

One of the common responses that tenants make to eviction lawsuits is that the landlord has failed to maintain the leased premises or make repairs. They argue that if the landlord isn’t repairing the premises, they should not have to pay rent. Generally, under Colorado law, a landlord’s failure to repair is not grounds for a tenant to withhold payment of rent. This is so even if the landlord’s failure to repair is a breach of the terms of the lease. However, if the landlord’s actions, or failures to act, renders all or a portion of the premises uninhabitable, then this constitutes a breach by the landlord of his covenant of quiet enjoyment of the premises and the tenant will be relieved of his duty to pay rent. In other words, the tenant will have been “constructively evicted.”

Several years ago the Colorado legislature passed into law a “warranty of habitability.” This law gave a tenant a right to terminate an existing residential lease or gave the tenant a justification for the tenant’s failure to pay rent in cases where the warranty of habitability was breached by the landlord. In order to breach the warranty, however, the landlord’s failure to repair had to render the premises hazardous to the health of the tenant or had to render the premises uninhabitable. In addition, the new law placed burdens upon the tenant to provide to the landlord written notice of the problem and gave the landlord a period of time to address and correct the issue. Lastly, if the warranty is raised by the tenant in response to an eviction lawsuit, the tenant is required to deposit his unpaid rent with the court at the time of the filing of his Answer.

However, the new warranty of habitability law does not replace or make obsolete the law of constructive eviction. If the tenant fails to strictly follow the requirements set forth in the warranty of habitability law, the tenant may still use a constructive eviction argument to try to get out of a lease or out of his obligation to pay some or all of his rent. Also, the warranty of habitability law only applies to residential leases. Commercial tenants can only use constructive eviction law to support this type of claim or defense.

The tenant must meet a heavy burden in order to prove that he has been constructively evicted. Historically, he would have to show that there has been a substantial interference with his use and enjoyment of the premises. The interference must have been caused by some act or failure to act by the landlord. Lastly, the tenant had to have vacated the premises or at least that portion of the premises from which he claims to have been constructively evicted.

What is “substantial interference” sufficient to support a claim of constructive eviction? It must be enough of an interference that a reasonable person would regard it as fundamentally incompatible with the use and enjoyment for which the tenant rented the premises. The court (or jury) will look at the purpose of the rental, the foreseeability of the type of interference, the duration of the interference, the nature and degree of the harm caused and the availability to the landlord of the means to remove the interference. The theory is that as a result of the actions or omissions of the landlord, the landlord created a condition which has prevented the premises from being used by the tenant and the tenant, by moving out, has terminated the lease. 

The Colorado Supreme Court articulated our state’s definition of constructive eviction in Radinsky v. Weaver as “any disturbance by the landlord of the tenant’s possession which renders the premises unfit for occupancy for the purposes for which they were leased, or which deprives the tenant of beneficial enjoyment of the premises causing him to abandon them.” Radinsky leased a one storey building to Weaver which Weaver was to use for his printing and photographic business. After Weaver moved in, Radinsky decided to add a second storey to the building. As part of the construction the roof was removed letting light into Weaver’s darkroom and sand and dirt was everywhere, getting into Weaver’s printing equipment. The construction work made the premises substantially unusable by Weaver for the purpose for which he rented the space. The court relied upon the prior law that, in the absence of an agreement to the contrary, there is an implied covenant for the quiet enjoyment of leased premises and the tenant is entitled to possession of the premises to the exclusion of the landlord. It was found that Weaver had been constructively evicted.

Under the historical view, the tenant cannot remain in the premises and claim a constructive eviction. Most states continue to rule this way, but Colorado is not one of them. In 1991 the Colorado Court of Appeals ruled that a tenant may remain in the leased premises and still claim constructive eviction. If the court finds that the acts or omissions of the landlord are so severe that they have resulted in a substantial interference in the use and enjoyment of the premises, even where the tenant is still occupying the premises, then the court will award as damages to the tenant the difference between the fair value of what the tenant would have received absent the landlord’s behavior and the fair value of what the tenant did receive. The court may also award the tenant any actual damages caused by the wrongful eviction.

Normally, it must be an act or omission by the landlord which causes the interference. An act or omission by a third party does not work. However, in 1981, the Colorado Court of Appeals said that acts by an adjoining tenant can form a basis for constructive eviction if the landlord knows about the situation and fails to stop the problem. It can be argued that the landlord’s failure to control the actions of the adjoining tenant is an omission by the landlord which is sufficient under the historical definition.

Most landlords recognize that they have an interest in diligently maintaining and repairing their properties. A landlord who takes prompt and reasonable actions to address maintenance issues will  not likely be found to have constructively evicted his tenant. Usually, a landlord’s act or omission must be quite severe in order to amount to an eviction, but a failure to address a problem which has caused a health hazard may be enough.

If you, as landlord, are placed on notice of a problem by your tenant, record the complaint. If the problem is a maintenance issue and the lease renders you, the landlord, responsible for the repair, get the repair done promptly. If the lease says that the tenant is responsible for the repair, send the tenant a written notice referencing the relevant provision of the lease and notifying the tenant that he is responsible for the repair. Then follow up to make sure the repair has been done.

If the problem relates to actions by a neighboring tenant or other third party, particularly if you, the landlord, have a lease with the neighboring tenant which contains that neighbor’s agreement not to disturb other occupants of the property, then make a record of the complaint, tell the complaining tenant to call the police and make a police report of the disturbance, if appropriate, and inform the neighboring tenant who caused the problem that a complaint had been received which is a violation of his lease. If the complaining tenant complains a second time after a later occurrence, make a record of the second complaint, tell the complaining tenant to again file a police report, if appropriate, obtain a copy of the police report and follow the steps required by law to undertake an eviction of the neighboring tenant based upon a non-monetary default. Your effort to evict the tenant who is causing the problem will allow you to avoid any claim of constructive eviction asserted by the complaining tenant.

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