CONSTRUCTIVE EVICTION: Definition & Guide On How It Works In Different States


It occurs when a landlord does not physically or legally evict a tenant, but instead takes actions that significantly interfere with the tenant’s use and enjoyment of the premises. Constructive eviction can occur as a result of the landlord’s breach of the implied covenant of quiet enjoyment if; (1) the landlord substantially interferes with the tenant’s use and enjoyment of the premises by his actions or failure to act to resolve a problem; (2) the tenant gives the landlord notice of the problem and the landlord fails to respond and resolve the problem; and (3) the tenant vacates the premises within a reasonable time after the landlord fails to respond and resolve the problem. This blog post will talk about what constitutes “constructive eviction” in California, Texas, and real estate.

What is Constructive Eviction

Constructive eviction is the legal term for when a tenant is forced to leave due to a condition on the property that the landlord caused or failed to repair. Failure to repair a heater during the winter is a common example of the latter. However, there are a variety of possible causes of constructive eviction, including:

  • Not repairing major plumbing or electrical issues.
  • Failure to repair broken locks, doors, or windows that pose a security or health risk.
  • Failure to address potentially dangerous or hazardous conditions, such as mold or pests.
  • Harassment.
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Smaller issues, such as chipped paint, worn-out carpet, or a dripping faucet, are insufficient. However, if there is only one bathroom and it is inoperable for an unreasonable period of time; with no alternative to use until repairs are made, it may be a different story. In short, it must be a serious problem that results in substandard, dangerous, or hazardous conditions. Tenants who believe they are being evicted should consult with a lawyer before moving; because getting it wrong could result in legal ramifications.

Understanding Constructive Eviction

When disagreements over the conditions of a leased premise escalate, both parties risk breaching the lease; the tenant risks breaching the lease by failing to pay rent; the landlord risks breaching the lease by failing to make lease-mandated repairs. The legal concept underlying this situation is “constructive eviction”.

Constructive eviction occurs when interference with a tenant’s use and possession of leased premises e.g real estate — whether from the landlord; the landlord’s failure to repair defects in the premises, or a third party — is severe enough to deprive the tenant of “beneficial enjoyment” of the premises. Sometimes determining constructive eviction is simple — a collapsed roof or a lack of heat in the dead of winter. In these circumstances, a tenant is likely to be able to walk away from its lease without incurring further liability.

Tenant risks

Because they are fact-specific, these types of questions pose a significant risk to a tenant. The tenant’s obligation to pay rent, on the other hand, is usually so clear as a matter of law that it is not in dispute. That is, it is almost always a bad idea for a tenant to refuse to pay rent and continue to occupy leased space while claiming constructive eviction. Constructive eviction is synonymous with eviction—leaving the space or the estate property.

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There is no constructive eviction if the space is unpleasant, but the tenant continues to occupy it. Meanwhile, if a tenant refuses to pay rent, stays in the space, and demands that the landlord repair the premises; the tenant is unambiguously breaching payment obligations while claiming a non-monetary and fact-specific breach by the landlord. In that situation, the majority of tenants lose.

Landlords are at risk.

A tenancy that is on the verge of constructive eviction poses a significant risk to the landlord as well. Deferring maintenance on commercial rental space may result in the loss of commercial tenants, who typically sign multi-year leases. Tenants who are able to establish constructive eviction are exempt from these long-term obligations. This can result in a cascade of vacating tenants in leased spaces with multiple units.

This not only reduces a landlord’s cash flow but can also cause unintended consequences for a lender. When leased space depreciates to the point where it no longer adequately secures landlord debt; it can cause a non-monetary default on the mortgage and other loan obligations, triggering default and foreclosure. That can be a death sentence for the irresponsible or inattentive landlord.

Best practices for both sides

Here are a few pointers to help you manage these challenges and reduce your exposure to the risks listed above:

Tenants should address major issues that impede the use and enjoyment of leased premises as they arise. Raise concerns as soon as possible. Take pictures or videotape what you claim is a problem to document the situation.

Landlords should document and respond to tenant concerns. Consider the importance of a tenant’s concerns and respond prudently. Consistently leaking pipes, for example, indicate not only plumbing issues; but also structural deterioration, mold, and a variety of other problems.

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To summarize, avoiding constructive eviction is the best way to deal with this type of situation for both landlords and tenants as well as real estate agents.

Constructive Eviction in California

Under constructive eviction laws in California, tenants have the right to a safe, livable home when they rent or lease from a landlord or estate. Tenants may be able to legally abandon their house without fulfilling their rental agreement or lease obligations; if the conditions in the rental unit become uninhabitable and the landlord does not fix the problems. This is because the landlord has forcefully evicted them by failing to keep the property habitable. The courts, however, do not take this remedy lightly, and tenants who wrongfully abandon their rental unit will be hold liable under the terms of constructive eviction of the lease in California.

Intolerable living conditions in the San Francisco Bay area

In California landlord-tenant law, “constructive eviction” occurs when conditions in the unit are so deplorable that no reasonable person could tolerate and/or jeopardize their well-being by continuing to live there, and they are forced to vacate the premises as a result of the conditions.

When a tenant chooses to vacate the premises as a result of the landlord’s failure to repair and maintain the premises in a condition suitable for the purposes for which they were leased; the landlord is liable for constructive eviction. Constructive eviction in California includes “the value of the term, less the rent reserved,” “expenses for removal,” “damages; for mental anguish,” and “exemplary” or punitive damages.

Attempts to force tenants to leave

In California constructive eviction, many times in rent-controlled jurisdictions; landlords, real estate agents, or management companies will attempt to force tenants out of long-term rent-controlled units; by refusing to make basic repairs, causing the unit to become uninhabitable and the tenants to become frustrated and vacate “voluntarily.”

Unfortunately, this often works, and tenants give up rent-controlled tenancies worth tens of thousands of dollars (or more); as a result of the landlord’s deliberate neglect. The tenants are then unable to afford comparable market-rate units, and the landlords profit by raising the subject unit’s rent to market-rate rent.

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In these cases, BV Law holds the landlord entirely liable for habitability violations and wrongful eviction attempts. In these cases, tenants are entitled to rent differential damages as well as the other damages listed above. Furthermore, under the San Francisco Rent Ordinance, trebled damages and attorney’s fees may be available in constructive eviction cases: San Francisco Admin Code 37.10B(c) (5).

Constructive Eviction in Texas

Tenants in Texas can sue for constructive eviction if their utilities are turned off or their windows, doors, fixtures, or appliances are removed. If a rental has become unlivable (as defined by Texas’ warranty of habitability), tenants can break their lease without penalty by using the legal concept of “constructive eviction.” Every state has some form of constructive eviction, but the specific situations in which it is permitted—and the process by which it must occur—differ.

Tenants in Texas have the legal right to constructive eviction under a combination of state statutes and common law. The statutes outline specific scenarios in which tenants may vacate and claim constructive eviction, whereas common law establishes broad guidelines for the process.

Tenants may seek constructive eviction if utilities are disrupted.

If their landlord interrupts utility service, tenants in Texas have the right to vacate and claim constructive eviction. If such an interruption occurs, the tenant has the right to vacate the residence, void the lease, collect any related expenses (such as moving costs), receive one month’s rent plus $1,000, and, if necessary, receive attorney fees.

The removal of windows or doors may constitute constructive eviction.

Another Texas law allows a tenant to sue for constructive eviction if a landlord removes a window, door, appliance, or fixture for any reason other than repair (in which case a replacement must be provided).

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A tenant may also terminate their lease if their landlord changes the locks on their rental for any reason other than nonpayment of rent—and even then, the landlord must provide a tenant with the ability to obtain a new key quickly, regardless of payment.

Other issues may also necessitate constructive eviction.

Even if a tenant is dealing with an issue that is not covered by the aforementioned statutes, they may be able to terminate their lease. The issue must be a breach of Texas’ implied warranty of habitability, which means that it seriously jeopardizes the tenant’s health and safety. A tenant must be current on rent in order to successfully claim constructive eviction. They must have also informed their landlord of the problem and given them at least seven days to resolve it.

Tenants must vacate in order to file a constructive eviction claim.

In Texas, a tenant can only claim constructive eviction if they have physically vacated the rental unit. The unique circumstances of each case determine whether or not the tenant abandons the property within a reasonable amount of time. If a tenant claims that the problem with their rental was so severe that it was dangerous, but then stays in the apartment for several months, their case may be undermine.

Constructive Eviction Real Estate

Constructive eviction vs. actual eviction real estate

The landlord evicts the defaulting tenant in an actual eviction, whereas in a constructive eviction, the landlord fails to provide the necessary services, allowing the tenant to cancel the lease.

Actual eviction — 

The legal process of evicting a tenant from a property due to a breach of the lease. Nonpayment of rent, unlawful use of the premises in violation of the lease’s use provisions (such as conducting a business in a rental unit leased solely for residential purposes), and noncompliance with health and safety codes are common grounds for eviction by a landlord.

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In the event of a partial eviction, the tenant is denied access to a portion of the premises. Unless the lease contains a survival clause stating that the tenant’s liability for rent survives eviction, the tenant is no longer responsible for paying rent after eviction.

Constructive eviction —

Conduct by the landlord that materially disrupts or impairs a tenant’s enjoyment of the leased premises to the point where the tenant is effectively forced to vacate and terminate the lease without further rent liability. This concept arose as a result of modern property law, which now places a greater emphasis on the quality of possession or habitability under a lease. Constructive eviction occurs when a landlord turns off the electricity or fails to provide heating, makes extensive changes to the premises, or attempts to lease the property to others. Another example would be if a high-rise apartment building’s landlord failed to provide elevator service.

Frequently Asked Questions

How do I file a constructive eviction in Texas?

A tenant must be current on rent in order to successfully claim constructive eviction. They must have also informed their landlord of the problem and given them at least seven days to resolve it.

Is constructive eviction legal in California?

Constructive eviction is permitted if the rental property is uninhabitable. California law specifies a long list of requirements that must be met before a rental unit can be considered habitable.

Which of the following is an example of constructive eviction?

Constructive eviction commonly occurs when a property lacks heat in the winter, electricity, or running water. If there is constructive eviction, the tenant is relieved of the obligation to pay rent and has no further legal obligations under the lease.

Is self help eviction legal in NC?

If the landlord does not violate the peace, North Carolina allows for self-help eviction. However, it forbids forcible self-help eviction. A landlord may reenter and take possession of leased premises peacefully or with the tenant’s consent or cooperation.

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