Constructive Eviction - Defined

Dena Standley | July 31, 2023

Legal Expert, Paralegal
Dena Standley, BA

Dena Standley is a seasoned paralegal with more than 20 years of experience in legal research and writing, having received a certification as a Legal Assistant/Paralegal from Southern Technical College.

Edited by Hannah Locklear

Editor at SoloSuit
Hannah Locklear, BA

Hannah Locklear is SoloSuit’s Marketing and Impact Manager. With an educational background in Linguistics, Spanish, and International Development from Brigham Young University, Hannah has also worked as a legal support specialist for several years.

Summary: "Constructive eviction" is when your landlord interferes with the livability of your apartment, making your stay difficult. If they do, you can use it as a defense in court and potentially receive compensation.

There are times when landlords have tried to cut corners to evict tenants. Instead of a legal eviction, they resort to cutting the water supply, power, or heating system.

Such landlords hope to force renters to walk out of their lease before time is up. That way, they save themselves the hassle of serving you a legal eviction notice, possible court fees, and the lengthy legal process.

Sometimes landlords commit constructive eviction unintentionally. They may not afford to pay for necessary repairs or take too long to address a pressing need.

Whether intentional or not, it is against the law for any property manager to interfere with the "quiet enjoyment" and "peaceful possession" of your rented home.

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What is the simple definition of constructive eviction?

Before the landlord hands over the key to the apartment, you should have signed a contract. The lease contract specifies your rights.

As per the contract, the landlord has both stated and implied responsibilities. For example, if the lease says the home has a working washer and dryer, they must keep those appliances in good working condition. They also agree to provide a safe living environment, free from pests and other health hazards, by renting out the apartment.

If a landlord, either by commission or omission, denies you those rights, they are breaking the law. If the situation is so bad that you have to vacate, you will not need to pay rent for the duration of the problem.

It is noteworthy that a tenant does not have to leave for a constructive eviction to apply. You may only have lost access to part of the property.

Therefore, constructive eviction is when a landlord does not physically or verbally ask you to leave, but their actions or inactions make the premises unlivable.

Also, the laws vary from state to state. So you should be familiar with the regulations in your home state. Keep reading for some examples.

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Consider these examples of construction eviction laws

As we mentioned, constructive eviction laws are slightly different in every state, but the basic rules still apply: if a landlord is found guilty of constructive eviction, they must compensate the tenant.

Let’s consider an example of such laws in California

Under California Civil Code 789.3(a-b), it states:

“(a) A landlord shall not with intent to terminate the occupancy under any lease or other tenancy or estate at will, however created, of property used by a tenant as his residence willfully cause, directly or indirectly, the interruption or termination of any utility service furnished the tenant, including, but not limited to, water, heat, light, electricity, gas, telephone, elevator, or refrigeration, whether or not the utility service is under the control of the landlord.

(b) In addition, a landlord shall not, with intent to terminate the occupancy under any lease or other tenancy or estate at will, however created, of property used by a tenant as his or her residence, willfully:
(1) Prevent the tenant from gaining reasonable access to the property by changing the locks or using a bootlock or by any other similar method or device;
(2) Remove outside doors or windows; or
(3) Remove from the premises the tenant’s personal property, the furnishings, or any other items without the prior written consent of the tenant, except when done pursuant to the procedure set forth in Chapter 5 (commencing with Section 1980) of Title 5 of Part 4 of Division 3.”

And 789.3(c) states:

“(c) Any landlord who violates this section shall be liable to the tenant in a civil action for all of the following:
(1) Actual damages of the tenant.
(2) An amount not to exceed one hundred dollars ($100) for each day or part thereof the landlord remains in violation of this section. In determining the amount of such award, the court shall consider proof of such matters as justice may require; however, in no event shall less than two hundred fifty dollars ($250) be awarded for each separate cause of action. Subsequent or repeated violations, which are not committed contemporaneously with the initial violation, shall be treated as separate causes of action and shall be subject to a separate award of damages.”

In other words, you are eligible for up to $100 per each day of violation, plus other costs, if your California landlord:

Turns off your utilities (including water, heat, light, electricity, gas, telephone, elevator, or refrigeration), or makes it difficult for you to use them
Changes the locks or uses a bootlock to make it difficult for you to enter the property.
Removes outside doors or windows.
Removes your personal property from the property, including furniture or any other items.

Wisconsin has similar laws regarding constructive eviction. In Wisconsin Statutes Chapter 704, section §704.07(4) states:

“Untenantability. If the premises become untenantable because of damage by fire, water, or other casualty or because of any condition hazardous to health, or if there is a substantial violation of sub. (2) materially affecting the health or safety of the tenant, the tenant may remove from the premises unless the landlord proceeds promptly to repair or rebuild or eliminate the health hazard or the substantial violation of sub. (2) materially affecting the health or safety of the tenant; or the tenant may remove if the inconvenience to the tenant by reason of the nature and period of repair, rebuilding, or elimination would impose undue hardship on the tenant. If the tenant remains in possession and the condition materially affects the health or safety of the tenant or substantially affects the use and occupancy of the premises, rent abates to the extent the tenant is deprived of the full normal use of the premises. This section does not authorize rent to be withheld in full, if the tenant remains in possession. If the tenant justifiably moves out under this subsection, the tenant is not liable for rent after the premises become untenantable and the landlord must repay any rent paid in advance apportioned to the period after the premises become untenantable. This subsection is inapplicable if the damage or condition is caused by negligence or improper use by the tenant.”

This means that, in Wisconsin, the tenant does not have to pay full rent if the property has potential to affect their health and safety due to the negligence of the landlord. If the tenant decides to move out because of the conditions of the property, they are not liable for rent and the landlord must pay back any rent that was paid during the period of untenantability.

These are just two examples of state laws on constructive eviction, but as we mentioned before, most states have similar or equal laws.

How can I claim constructive eviction as a tenant?

You must follow specific steps to prove that the landlord violated your rights.

First, you must inform the landlord about the issue.
Then, allow them a reasonable amount of time to act.
If they take too long to rectify the situation, you may involve a third party to help you reach out to the landlord again.
If that still bears no fruit, you can inform the landlord (in writing) that you plan to move out, stating the date you plan to do so.

Written communication helps you keep evidence of correspondence.

Also, balance is necessary when giving the landlord "a reasonable amount of time." If the time is too short, the court may rule that it was inadequate. If it is too long, the judge may feel that the conditions at the apartment were not too bad and therefore do not count as constructive eviction.

Using constructive eviction as a defense in court

If a landlord sues you for rent or late fees covering the period when you were constructively evicted, you can win if you prove that they denied your rights.

To win, you must prove the following:

That there were conditions that made the premises unlivable.
That the landlord is to blame for those conditions.
That you notified the landlord, but they failed to act within a reasonable period.
That you had to vacate (either partially or fully) because of the existing conditions.
You incurred losses such as moving or medical costs because of the landlord's faults.

You can also use constructive eviction to sue a landlord or property manager for damages. Be sure to understand the law of constructive eviction where you live. An attorney may be best placed to advise you.

Constructive eviction applies to both businesses and single-home residents. So, companies can also expect that property management will not interfere with their smooth operations. For example, it would be a conflict of interest if a landlord rented out a daycare next to a day spa. The noise from the daycare may affect the day spa's clients' ability to relax.

Learn more about legal eviction and your rights.

Defending your eviction rights

Landlords cannot forcefully evict you by making your stay at their property difficult. If they do, the law is on your side. You can sue them for damages or protect yourself from abusive property managers.

Let’s take a look at an example.

Example: If Jenny’s apartment has a mold infestation, she should inform the landlord. The landlord must act fast to solve the issue. If the landlord takes too long to solve it, Jenny can write the landlord, informing them that she plans to move out by a specific date. If the landlord later sues Jenny asking for rent, she can defend herself.

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