Page 6
— Property Management Quarterly — July 2016
I
will never forget the first time I
heard a tenant say the dreaded
words: constructive eviction.
I broke out in a cold sweat,
drove myself to the nearest
emergency room for excessive heart
palpitations and extreme nausea.
The ER doctor gave me a thorough
physical, and had the audacity to
give me the following prescription
– hire a good trial attorney and get
ready for a painful trial and expen-
diture of lots of money for legal fees
and damages.
In order for us all to have a thor-
ough understanding of the legal
doctrine of constructive eviction
or breach of quiet enjoyment, and
to avoid painful and costly conse-
quences, I asked Amanda Halstead
to address the following key ques-
tions.
Sessions:
What is the covenant of
quiet enjoyment?
Halstead:
The covenant of quiet
enjoyment has two components. The
first gives the tenant some assur-
ance that she has the right to occu-
py a property and that she won’t be
thrown off the property by someone
with superior title.
The second gives the tenant the
right to occupy a property free from
disturbances that render the prop-
erty unfit for the purpose for which
it was leased. Although the covenant
of quiet enjoyment is implied in
every lease, it can be expressly dis-
claimed. Most commercial leases,
however, include an expressly stated
right to quiet enjoyment.
It should be noted that condi-
tions accepted at the time of lease
execution cannot serve as a basis
for a constructive
eviction. By way of
example, accep-
tance of a leased
premises in its “as
is” condition could
limit the bases on
which a tenant
may later claim
constructive evic-
tion. From a tenant
perspective, a ten-
ant should always
attempt to carve-
out any “latent
defects or the exis-
tence of any hazardous materials”
from an “as is” clause.
Sessions:
What is a claim for con-
structive eviction?
Halstead:
A breach of the cov-
enant of quiet enjoyment often is
referred to as a constructive evic-
tion. A breach of the covenant of
quiet enjoyment occurs “when the
lessor’s disturbance of the lessee’s
possession renders the premises
unfit for occupancy for the purposes
leased or deprives the lessee of the
beneficial enjoyment of the prem-
ises, causing the lessee to abandon
them,” see Carder, Inc. v. Cash, 97
P.3d 174, 184.
It should be noted that actual
abandonment of the leased prem-
ises is not required. There must be
acts or omissions of the landlord
that deprive or substantially inter-
fere with the tenant’s possession
or use and enjoyment of a leased
premises in order to support a claim
for constructive eviction. Acts of a
third party cannot serve as a basis
for such a claim.
Sessions:
What
should a tenant do
if he believes he
has been construc-
tively evicted?
Halstead:
If a ten-
ant believes that a
condition exists on
or about the prop-
erty that renders
the property unfit
for the purposes
leased, the tenant
should first review
his lease to deter-
mine whether the
condition is one
that must be remedied by the land-
lord or the tenant.
If the condition is the landlord’s
responsibility, the tenant should
send a written notice, delivered in
accordance with the notice provi-
sions of the lease, identifying the
condition and requesting that the
landlord address the same.
The inquiry into whether a tenant
has been constructively evicted is
very fact specific. In most cases, a
successful tenant will have written
multiple letters to the landlord with-
out any meaningful action on the
part of the landlord to address the
condition.
Sessions:
What should a landlord
do if he receives notice of a con-
structive eviction from a tenant?
Halstead:
If a landlord receives
a notice from a tenant indicat-
ing that something needs to be
addressed, the landlord should
respond promptly. The landlord, like
the tenant, should refer to the lease
to confirm whether the condition is
one that is required to be addressed
by the tenant or the landlord. If the
condition is the landlord’s respon-
sibility, the landlord should send
someone to evaluate and correct the
problem immediately.
An experienced property manager
knows that keeping detailed records
of the efforts made to address a
tenant’s concerns can be critical to
defeating a claim of constructive
eviction. By way of example, if some-
one complains about a heating unit,
a call log documenting the time the
complaint was received and what
efforts were made to get a contrac-
tor on site should be kept. Copies of
any invoices and work orders should
be maintained. Taking reasonable
efforts to address a problem can be
just as important as actually correct-
ing a problem.
There may be situations where a
landlord is unable to get a contrac-
tor on site immediately to address
a problem. For example, contractors
may be inundated with work orders
following a hail storm and may not
be readily available. If reasonable
efforts are made to address a prob-
lem and notes detailing the reason
for any delay are kept, the landlord
likely will be in a good position. Also,
remember that tenant notices do
not always use the words “construc-
tive eviction.” In most cases, they
simply will come in the form of a
maintenance request or complaint.
Sessions:
When do constructive
eviction claims usually arise?
Halstead:
Constructive eviction
claims are asserted most often as
Legal
Steven S.
Sessions
CEO, Sessions
Group LLC, Denver
Amanda H.
Halstead
Member, Mills,
Schmitz, Halstead,
Zaloudek LLC,
Denver
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