The Law Office of Seth Rosenfeld, Esq.
We Can Answer All Your Questions
During A FREE Consultation
The Law Office of Seth Rosenfeld, Esq.
We Can Answer All Your Questions
During A FREE Consultation
Understanding constructive eviction

Understanding constructive eviction

| Oct 12, 2020 | landlord-tenant disputes |

Most landlords in Queens are careful to make certain that all tenants sign a written lease that, among other terms, specifies the date on which the lease expires. A tenant who leaves the rented property before the expiration date may face an action for unpaid rent and damages. If the landlord is unable to rent the property before the expiration date, the tenant may be required to reimburse the landlord for the rent that would be owed during the period of vacancy. Defending such a lawsuit is difficult, but New York law provides one very powerful defense: proving a case of constructive eviction.

New York landlords owe their tenants certain duties. Among these duties are clean and habitable premises, adequate heat in the winter, essential utilities and unrestricted access to the premises during the lease term. The landlord must also protect and respect the tenant’s right of “quiet enjoyment.” Quiet enjoyment means the right to occupy the premises free from harassment by the landlord or persons acting for the landlord. These duties are usually combined in what the law calls a “warranty of habitability.” If a landlord breaches the warranty of habitability, the breach may be deemed to be an act of eviction, that is, the landlord may be deemed to have committed acts that are sufficient to support the legal conclusion that the landlord breached the lease and “constructively” evicted the tenant.

The effect of constructive eviction

Constructive eviction can be used against the landlord in two ways: prospectively, if the tenant wants to terminate the lease, or defensively, if the landlord sues the tenant for breach of the lease.

To raise a claim of constructive eviction, the tenant must first abandon the premises. The tenant must then prove the five elements of constructive eviction:

  • That the landlord owed a duty to the tenant, such as providing essential utilities or a residence free from toxic materials such as lead paint or asbestos
  • That the landlord neglected this duty
  • That the landlord’s neglect made the apartment unlivable
  • That the tenant gave the landlord notice of this neglect and plenty of time to fix it
  • That the tenant left the apartment within a reasonable amount of time after the landlord failed to fix the problem

Anyone who believes that they may have been the victim of constructive eviction may wish to consult an experienced landlord/tenant attorney for an evaluation of the lease and the terms of the alleged eviction.