Constructive Eviction?

Previous | Next
 rated by 0 users
Latest post 03-26-2007 11:56 AM by adjuster jack. 5 replies.
  • 03-19-2007 12:29 PM

    Question [=?] Constructive Eviction?

    We have been renting a commercial space for 1.5 years on a 4 year lease. A new tennent was allowed to move in next door without having the required liability insurance as stipulated in the lease. They ended up flooding my space by leaving a washing machiene running. They did pay for a new floor which was installed. The new tennant also plays loud music all day which I have complained to the landlord about and the issue remains unsolved. I also have complained that bird poop litters the common areas. So much that you can't take a step without stepping in it.

    Due to the flood my business was severly hurt financially for lost income of about $15k. I am a new business and live "paycheck to paycheck." Since then I have not been able to financially recover and face going out of business. I have requested that the landlord decrease my rent and increase the damages I suffered onto the tennant who flooded me rent. Landlord has not responded. When I called to get resolution to the noise problem I was harrassed and told to install sound proofing if I didn't like it.

    I sent a letter 3 weeks ago listing all the things wrong with the space (no heat, bird poo, noise) and stated that they be corrected, I be contacted to discuss a remidy or else I may have to file for constructive eviction. I have not had a response.

    So, what should I do? If I file constructive eviction should I move out immediately? If I stay and keep paying rent does that hurt my constructive eviction case? The reason I'm still here is I don't want to be in breach of my lease if this goes to court and I am found to be liable for the rent. However, staying here is financially killing me and a lawsuit for constructive eviction could take a year. If I stay and win a constructive eviction case will the landlord have to give me back the rent I paid although I am still trying to salvage the business? This is like being caught between a rock and a hard place!

    Do I have a claim against the landlord for not upholding the lease and requiring the other tennant to have insurance? What about my security deposits if I move out ($10K), what about the cost of my buildout? Will I recover that?

    Any advice is appreciated!
  • 03-19-2007 3:43 PM In reply to

    re: Constructive Eviction?

    "Due to the flood my business was severly hurt financially for lost income of about $15k."

    You're free to sue the negligent tenant for the damage. The liability insurance issue is a breach of contract thing between the tenant and landlord.

    "I have requested that the landlord decrease my rent and increase the damages I suffered onto the tennant who flooded me rent."

    Er, what do you mean by "increase the damages"??

    The landlord doesn't have to reduce your rent.

    I sent a letter 3 weeks ago listing all the things wrong with the space (no heat, bird poo, noise) and stated that they be corrected, I be contacted to discuss a remidy or else I may have to file for constructive eviction. I have not had a response.

    "So, what should I do?"

    As to the noise-poop-heat matters, assuming these are in any way covered by the lease you have, you need to talk with a commercial real estate attorney.

    "If I file constructive eviction should I move out immediately?"

    I don't know what you mean by "file constructive eviction".

    Again, you need to talk with a local real estate attorney.

  • 03-20-2007 10:00 AM In reply to

    re: Constructive Eviction?

    Yes, I am suing the negligent tenant for damage.

    The liability insurance is a breach of contract between the negligent tenant and landlord but not between me and the landlord. My lease does not say that the landlord requires other tenants to have insurance. This is what the landlord claims, so that they are not liable. Not sure how that would hold up in court...

    I asked the landlord to decrease my rent a few hundred dollars and add that amount to the rent of the negligent tenant spread out over several months so that no one party is hit with a $15k bill all at once. I guess this was an attempt to mediate or to show I am willing to work things out before jumping on the lawsuit bandwagon.

    By "file constructive eviction" I meant "claim" constructive eviction, tell the landlord I'm leaving, move out, and persue constructive eviction in court. Although I'm not sure that I have a constructive eviction case over the insurance issue. The space is not unusable due to financial loss, I just can't afford to be here. Any thoughts on this?
  • 03-20-2007 11:32 AM In reply to

    re: Constructive Eviction?

    You don't have a "constructive eviction". The landlord has done nothing to prevent your use of the premises.

    If you "claim" constructive eviction and leave you are guaranteed to be sued for breach of the lease and the landlord is virtually guaranteed to win. And you will not get your deposit or your build out costs.

    With regard to the water damage from the next door tenant, your landlord has done nothing wrong and does not owe you a reduction in rent.

    With regard to the bird poop, no heat, noise, you have to understand the legal elements of contract law. A breach of part of the contract doesn't necessarily give you the right to cancel the contract and walk away. On the contrary, you could simply have remedies available for the cure or compensation of the breaches. For that you will need to consult an attorney.

    As for your loss of 15000 of business income, that's the responsibility of the other tenant, not the landlord. You, of course, can sue the tenant for the loss of income.

    But you could have bought business income insurance.
    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 03-24-2007 2:07 PM In reply to

    re: Constructive Eviction?

    Apparently I have a really good case against the landlord on multiple issues and do have constructive eviction and breach by the landlord of my lease in multiple elements. As a matter of fact if they neglect to fix the items described the state law allows me to move out in 20 days and be free from the lease 100%. Good thing I went to a real attorney.
  • 03-26-2007 11:56 AM In reply to

    re: Constructive Eviction?

    "Apparently I have a really good case against the landlord on multiple issues and do have constructive eviction and breach by the landlord of my lease in multiple elements. As a matter of fact if they neglect to fix the items described the state law allows me to move out in 20 days and be free from the lease 100%."

    It's not me you have to convince.

    "Good thing I went to a real attorney."

    You did read the rules of the board that say we only give general information, right?

    1000 times a day we recommend consulting an attorney. We certainly hope that people who post questions here are at least smart enough to do that even when we don't happen to say so.

    Let us know how things turn out.
    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
Page 1 of 1 (6 items) | RSS

My Community

Community Membership New Users: Search Community