A few weeks ago, one of our clients encountered a common problem. The problem was that her tenant had attempted to cancel the lease several months before its expiration, claiming that his reason for doing so was that there was mold in the dwelling, rendering it uninhabitable. The claim by the tenant is referred to as Constructive Eviction. In this month’s article, we will discuss that claim as well as what the landlord may expect in Court.
There are certain circumstances in which a tenant with a substantial habitability defect can declare a “constructive eviction” and cancel the lease. In all cases, the tenant must show that the habitability defect is substantial enough so as to render the premises utterly unsuitable for the purpose for which it has been rented. The tenant must generally also give the landlord a reasonable opportunity to cure the defect, except in extreme and very unique circumstances. The tenant’s reasons for the claim are usually made in writing to the landlord and then again in Court when the landlord attempts to sue the tenant for rents remaining under the lease. If the Court is persuaded by the tenant’s arguments, the landlord’s claim for unpaid rent would be denied, and likewise, the tenant’s claim for return of security deposit and any other incidental damages would be granted.
Very often, the tenant has no legitimate argument and the alleged habitability defect is merely a pretext for attempting to cancel the lease. However, the issues in these types of cases always involve a thorough factual inquiry. Please also remember that once the tenant moves out, the landlord still has a duty to attempt to mitigate his or her damages by trying to find a new renter. Absent a successful claim of construction eviction, the existing tenant is responsible for any rents the landlord loses until the lease expires.
Finally, if the Landlord has an insurance policy that insures the landlord against mold claims, the landlord’s insurance policy will often send its own attorney to defend these claims. However, injury claims by tenants very often contain an additional allegation that the landlord has breached the contract. While insurance companies will defend a personal injury suit, the policies generally do not insure the landlord against contractual claims, including breach of lease. While these two claims are basically interdependent, the insurance companies have created enough of a loophole to suggest that the landlord may need to hire his or her own attorney to defend those specific claims.