By Harvey S. Jacobs March 19, 2015

When one hears the word eviction, one might conjure images of a sheriff’s deputy and a moving crew showing up at a rental property and forcibly depositing the tenant’s possessions at the curb.

But there is another, lesser known type of eviction, a constructive eviction, which is used by tenants to avoid the lease terms. Landlords and tenants alike need to be aware of the legal theory behind it.

Constructive eviction occurs when the landlord allows the property to deteriorate to such an extent that it becomes uninhabitable. Constructive eviction can also arise when a property is rendered uninhabitable by a natural disaster – such as a fire or a flood and the landlord cannot promptly repair the damage. Constructive eviction claims most often arise as a defense in a landlord-tenant action.

Generally speaking, if there is a written lease that calls for the tenant to pay rent and the tenant fails to pay, a court will enter a judgment for the landlord. One of the few reasons a court will excuse the tenant’s obligation to pay rent is that the property is rendered uninhabitable.

Minor problems or temporary circumstances that inconvenience the tenant will not rise to the level of a constructive eviction. Broken elevators or clogged toilets, if fixed within a reasonable time, will not support a tenant’s defense of constructive eviction. If repairs are possible but the landlord refuses to make them or delays making them, a court can order an interim remedy short of declaring a constructive eviction.

A court can order the tenant to pay his rent into a court registry, which is not released to the landlord unless and until all necessary repairs are made. If the landlord still fails to make necessary and timely repairs, the court can allow the tenant to use his rent to pay for repairs.

Because of the ramifications of a constructive eviction such as allowing the tenant to cancel the lease and make no rent payments courts will accept this defense only in the most serious circumstances. For example, courts have found a constructive eviction to exist when heat, potable water and sanitary facilities were lacking for a prolonged period.

To successfully assert the constructive eviction defense, the tenant must abandon the property within a reasonable period. What is reasonable is whatever the courts say is reasonable. Courts have found an abandonment occurring within a month of the event allegedly causing a constructive eviction to be reasonable.

Conversely, when a tenant did not abandon the property until a year had elapsed, that was held to be an unreasonable abandonment. Similarly, abandoning the premises after the lease expired was held to be an unreasonable abandonment. In those cases, the courts refused to find that a constructive eviction had occurred.

Constructive eviction can also be used affirmatively by a tenant. This can occur when a tenant sues the landlord for breach of the tenant’s covenant of quiet enjoyment. All leases contain an implied covenant of quiet enjoyment, which does not necessarily have anything to do with the decibel level at the property or whether the tenant is actually enjoying the property.

This poorly named doctrine guarantees the tenant’s right to use the property for the purposes the tenant intended. When prevented from enjoying such use, the tenant may sue the landlord for breaching the covenant. If the court agrees, it will declare the lease breached by the landlord and allow the tenant to terminate the lease without penalty.

Tenants assume a significant risk when using the constructive eviction defense or when suing for breach of the covenant of quiet enjoyment. Because the tenant must abandon the premises to satisfy the requirements for a constructive eviction, if the claim is not accepted by the court, the tenant will have abandoned the property but will still be liable for the payment of all rent for the entire lease term.

In light of this risk, tenants should think very carefully before using these legal theories.

Harvey S. Jacobs is a real estate lawyer with Jacobs & Associates Attorneys at Law in Rockville, Md. He is a real estate investor, developer, landlord, settlement attorney, lender and Realtor. This column is not legal advice and should not be acted upon without obtaining your own legal counsel. Contact Jacobs at (301) 417-4144, or