Constructive eviction

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Constructive eviction is a term used in the law of real property to describe a circumstance in which a landlord either does something or fails to do something that he has a legal duty to provide (e.g. the landlord refuses to provide heat or water to the apartment), rendering the property uninhabitable. A tenant who is constructively evicted may terminate the lease and seek damages.

To maintain an action for damages, the tenant must show that:

  • the uninhabitable conditions (substantial interferences) were a result of the landlord's actions (not the actions of some third party) and
  • that the tenant vacated the premises in a reasonable time.

A tenant who suffers from a constructive eviction can claim all of the legal remedies available to a tenant who was actually told to leave.

See also[edit]

SUNDAY, AUGUST 5, 2007 Structure of Court's Analysis In: Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578 1. Did Landlord owe a duty? Collections Inc. v. Swords, supra, 48 Cal.App.3d at p. 846; see, e.g. Pierce v. Nash (1954) 126 Cal.App.2d 606, 614 REMEDIES: Constructive Eviction:

5) Remedies for breach of the covenant of quiet enjoyment. [11] An interference by the landlord, or by someone claiming under the landlord (Lee v. Placer Title Co., supra, 28 Cal.App.4th at p. 512), "by which the tenant is deprived of the beneficial enjoyment of the premises amounts to a constructive eviction if the tenant so elects and surrenders possession, and the tenant will not be liable for rentals for the portion of the term following his eviction. [Citations.]" (Kulawitz v. Pacific etc. Paper Co. (1944) 25 Cal.2d 664, 670.) [Emphasis mine]

END Andrews Case Excerpts Posted by Page Administrator at 5:34 AM No comments: THURSDAY, AUGUST 2, 2007 CALIFORNIA CASES, STATUTES & ORDINANCES Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578 Sierad v. Lilly, 204 Cal.App.2d 770

Peterson v. Superior Court (Banque Paribas) (1995) 10 Cal.4th 1185, 43 Cal.Rptr.2d 836 The implied warranty recognizes the realities of the modern landlord tenant relationship and imposes upon the landlord the duty to maintain a rented dwelling in a habitable condition throughout the term of the

IMPLIED DUTY: All leases have "implied covenant" of quiet enjoyment (California Civ. Code, § 1927). Also, "habitability" issue. EXPLICIT DUTY? Did the lease agreement explicitly declare LL will act to preserve quiet use and enjoyment? If "1" is affirmative, (LL owed duty):

2. Was the interference with the tenants use and enjoyment "substantial," therefore compelling LL to act? [examples of substantial arguably could be breaking law: eg if the tennants were cited by police for breaking a city/municipal NOISE ordiance/ or if noise was so loud tenants could not here their own TV/radio etc./exceeded decible levels mentioned in local ordinance) If 1 & 2 are affirmative (LL had a duty and interference was substantial enough to compel/require LL to act):

3. Did LL breach his duty by failing to act to correct (remedy) the situation? EXCERPTS FROM Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578 We begin with a discussion of the implied covenant of quiet possession which gives rise to duty in the landlord " 'to preserve the quiet enjoyment of all tenants.' " (Davis v. Gomez, supra, 207 Cal.App.3d at p. 1404.) [Italics mine] General principles relating to the implied covenant of quiet enjoyment. (1) Quiet enjoyment is an implied term of every lease agreement. [5] In the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment, whereby the landlord impliedly covenants that the tenant shall have quiet enjoyment and possession of the premises. (Petroleum Collections Inc. v. Swords (1975) 48 Cal.App.3d 841, 846; Guntert v. City of Stockton (1976) 55 Cal.App.3d 131, 138.)

6] The implied covenant of quiet enjoyment is partially codified in Civil Code section 1927, enacted in 1872, which provides: "An agreement to let [125 Cal.App.4th 589] upon hire binds the letter to secure to the hirer the quiet possession of the thing hired during the term of the hiring, against all persons lawfully claiming the same." The statutory covenant "guarantees the tenant against rightful assertion of a paramount title." (Guntert, supra, 55 Cal.App.3d at p. 138.) Beyond the statutory covenant, the landlord is bound to refrain from action which interrupts the tenant's beneficial enjoyment. (Ibid.)

(3) Substantial interference is required to establish a breach of quiet enjoyment. [9] Minor inconveniences and annoyances are not actionable breaches of the implied covenant of quiet enjoyment. To be actionable, the landlord's act or omission must substantially interfere with a tenant's right to use and enjoy the premises for the purposes contemplated by the tenancy. (Petroleum lease.

Petroleum Collections Inc. v. Swords , 48 Cal.App.3d 841, 846 Green v. Superior Court, [(1974)] 10 Cal.3d 616 NOTE: Commercial Lease Law applies to residential leases: See Andrews, Footnote 8: FN 8. Because the implied covenant of quiet enjoyment is present in every lease in the absence of language to the contrary (Petroleum Collections, Inc., supra, 48 Cal.App.3d at p. 846), the cited cases, although involving commercial tenants, are equally applicable to residential tenancies. STATUTES AND CODES: California Civil Code sect 1927 California Civil Code §§ 1925-1954 (Section 1941) 1961-1962.7, 1995.010-1997.270

MUNICIPAL ORDINANCES (Most all cities in California. Look for Noise Ordinance of town in your County for fact pattern) Encinitas noise control ordinance [Suggest you include in fact pattern the loud tenant was cited numerous times for violating city ordinance. Cite the ordinnace. Include in fact pattern that tenant appellant made landlord aware of violations.]


Sierad v. Lilly, 204 Cal.App.2d 770 Constructive Eviction

Defendant first contends that there was no evidence of any constructive eviction by defendant. [1, 2] Defendant correctly states the rule of constructive eviction as follows: "It is settled, however, that there need not be actual dispossession of the tenant from the leased premises. An eviction may be actual, as where there is a physical expulsion, or it may be constructive as where, though amounting to an eviction at law, the tenant is not deprived of actual occupancy. Any disturbance of a tenant's possession by a landlord or by someone acting under his authority, whereby the premises are rendered unfit for occupancy for the purpose for which they are demised, or the tenant is deprived of the beneficial enjoyment of the premises, amounts to a constructive eviction." (Giraud v. Milovich, 29 Cal.App.2d 543, 547 [1] [85 P.2d 182].) See also Kulawitz v. Pacific etc. Paper Co., 25 Cal.2d 664, 670 [5] [155 P.2d 24]; Lindenberg v. MacDonald, 34 Cal.2d 678, 690 [214 P.2d 5, 14 A.L.R.2d 1436]; Pierce v. Nash, 126 Cal.App.2d 606, 612 [272 P.2d 938].)

EXAMPLE OF CASES LOST BY TENANT: (Fact patterns are critical) Parade Parkside Assoc. LP v Elisa Holland

FINAL THOUGHT: CONTRACT LAW ELEMENT OF CASE? Leases come under both real property law, as well as contract law. (they are a hybrid combination) Would the appellant tenant have a case under breach of contract? (Maybe that would depend on the terms and conditions stated in the lease (contract) . Possible fact pattern. Posted by Page Administrator at 5:01 AM No comments: Home