Constructive Eviction

The legal term constructive eviction refers to a landlord’s action – or failure to take action – that makes the premises uninhabitable, or which robs the tenant of the use and enjoyment of the premises. This occurs without taking steps to legally evict a tenant, rather simply making staying so miserable that the tenant just leaves. Constructive eviction is not lawful, and may apply to both residential and commercial premises. To explore this concept, consider the following constructive eviction definition.

Definition of Constructive Eviction


  1. An eviction provoked by a landlord’s substantial interference with the tenant’s enjoyment of the property.


1400-1450       Middle English evicten

What is a Constructive Eviction

Eviction is the act of removing someone from a premises, and is usually achieved by obtaining a court order. Some landlords choose to forego the legal route to kicking a tenant out, instead taking some action that makes life miserable in the premises, hoping the tenant will just give up and leave. For example, constructive eviction might occur when a landlord refuses to have a malfunctioning heating unit repaired, so the tenant leaves. This method of removing a tenant is known as constructive eviction, and it is not legal.

Examples of Constructive Eviction Acts

There are certain things a landlord might do – and others he might fail to do – that may be considered constructive eviction. These include such acts by a landlord as:

  • Having the water turned off
  • Blocking the tenant’s access to the property
  • Entering the property without proper notice
  • Harassing the tenant continually
  • Failing to make repairs as required under the lease or rental agreement

A Tenant’s Rights in Constructive Eviction

A tenant who is being constructively evicted – or who feels he has been constructively evicted – has certain rights under the law. A tenant still in the premises can have the court force the landlord to uphold the provisions of the rental or lease agreement. A tenant who has already been forced out may be able to recover damages if he is successful in proving his case in a civil lawsuit.

For example:

Dale is a successful accountant who has is own office on the ground floor of a building downtown. When the building was sold, the new landlord attempted to move everyone out so that he could make a few upgrades, and re-rent the office spaces for more money. Dale – who has a 5-year lease – declined to leave, preferring to stay until his lease is up.

When the building’s air conditioning goes out in the heart of summer, the temperature in Dale’s office quickly rose to an unbearable level. Dale notifies the landlord of the problem, but the landlord drags his feet, not even returning Dale’s call for more than a day. He then makes a string of excuses, and does not send anyone out to repair the air conditioner.

The deplorable conditions force Dale to close his office, and he quickly finds a new office space from which he can continue doing business. Dale feels this was the landlord’s way of forcing him out of the building, and files a civil lawsuit against the landlord for constructive eviction. Dale asks for damages to pay for the several days his office was closed, the cost to move his office, and other costs of the unlawful eviction.

Elements of Constructive Eviction

In order to be successful in a civil lawsuit for constructive eviction, a tenant must be able to prove that certain conditions exist, or existed. Forcing a tenant to essentially choose to leave the property may be accomplished by something as blatant as having the water shut off, or as subtle as showing up to check on the tenant and property too often, entering the premises without notice or permission, forming a pattern of harassment.

Tenants, whether residential or commercial, have a right to quiet enjoyment of the premises. The court may determine that a landlord has engaged in constructive eviction if:

  1. The landlord substantially interfered with the tenant’s use, and quiet enjoyment, of the property
  2. The tenant gave notice to the landlord of a problem that existed, and the landlord failed to resolve the problem
  3. The tenant left the premises out of necessity, within a reasonable amount of time after the landlord failed or refused to correct the problem

Actions of a Landlord

Certain actions of a landlord may rob a tenant of his right to quiet enjoyment of the property he is renting. While these may vary greatly, and landlords may be imaginative in their efforts to chase a tenant away, acts that constitute harassment may be considered constructive eviction. These often include constant small violations, such as:

  • Frequent phone calls and visits
  • Entering the premises without notice or a valid reason

Uninhabitable Premises

Certain conditions may occur that would make a premises uninhabitable – these might include interruption of drinking water or electricity (not due to the tenant’s failure to pay their bill), malfunction of the heating or air conditioning unit, failure of essential appliances included in the lease, leaking roof or plumbing, or other issue. It is the landlord’s responsibility to take care of such issues in a timely manner in order to ensure the premises is inhabitable.

A landlord’s refusal or failure to correct such problems – once the tenant has given him notice of the problem – may be considered constructive eviction. In some states, the courts recognize that other nearby tenants acting in such a way as to deprive a tenant of quiet enjoyment of his home are the landlord’s responsibility. Failure to act in controlling the neighboring tenant’s behavior, or to evict him from the property, may constitute constructive of the annoyed tenant.

Tenant Moving from the Premises

An important element to winning a constructive eviction lawsuit is abandonment of the premises within a reasonable amount of time after the landlord’s failure to correct the problem conditions. The tenant must give the landlord notice of the problem – in writing – and allow a sufficient amount of time for the landlord to respond, and to correct the problem. The tenant can then move out of the premises, and seek damages.

On the other hand, a tenant that claims the landlord made the premises unlivable, yet stays an extended period of time without paying rent, is likely to find himself legally evicted, and may lose his claim for constructive eviction. Damages in such a case may be split between the parties, or the landlord may win his case against the tenant.

Constructive Eviction Example

In the late 1980s, over a period of a few years, Timothy Kite – a high end, certified jeweler and gemologist – worked out a deal to operate his business out of a new store in Alexandria, Louisiana, owned by Gustave Kaplan. Kite was not an employee of Kaplan, but rather operated his jewelry business as a lessee of a certain space within the department store.

The lease the two entered into on August 3, 1992, specified that Kite would operate a fine jewelry department in a designated space within the store, for a period of five years. Kite’s rent was to be 14% of the jewelry department’s gross sales each month. The specified location of the jewelry department was centrally situated in a high-traffic area, and featured special displays and lighting, making it ideal for the sale of high-quality jewelry. The space was even equipped with special security measure to protect the precious stock.

Some financial issues between the two arose over the following couple of years, and Kaplan attempted to convince Kite to move his store to another building. Failing that, he suggested Kite move his display to another area of Kaplan’s store, to which Kite didn’t even respond.

One day in February 1994, Kite showed up to work and discovered that his jewelry department had been moved to another part of the store – one which did not contain any other merchandise to draw customers. Kite’s merchandise had been removed from their special cases and stored in some unknown location. Some of Kite’s inventory had been taken, important papers were missing, and his countertops were covered in a mess of cosmetics and other items.

Kite and Kaplan filed separate lawsuits, each attempting to win damages against the other. The cases were ultimately consolidated into one, which trial was held in July 1996. The trial court ruled against Kite in his claim of constructive eviction, and Kite appealed.

The appellate court overturned this part of the trial court’s ruling, pointing out that the parties knew just what they were doing in specifying that Kite’s jewelry department would be located in an area of high traffic, and contain the special displays, equipment, lighting, and security necessary to operate such a business. In order to have rightfully moved Kite’s department, Kaplan would have prepare a new, appropriate, location, complete with proper lighting, displays storage, and security, ahead of the move.

In this example of constructive eviction, the court ruled that Kaplan acted maliciously with the intent to force Kite out of business, and out of the premises.

Related Legal Terms and Issues

  • Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
  • Damages – A monetary award in compensation for a financial loss, loss of or damage to personal or real property, or an injury.
  • Harassment – The act of harassing, disturbing, or persecuting someone.