Have you ever heard of a “constructive eviction”?

Of course, everyone understands the word eviction — as in being evicted from a rental unit typically for non-payment of rent.

But there is another kind of eviction that results when a landlord’s behavior, intentional or not, deprives the tenant of the peaceful enjoyment of the premises.

This can include things like failing to make necessary repairs or creating a hazardous environment. In effect, the behavior creates a situation where the tenant has no choice but to move and is, in effect, evicted.

Constructive eviction gives tenants the legal opportunity to break a lease. In my law practice, I’ve seen this happen when a landlord hires an inexperienced or incompetent property manager.

That was exactly what “Julie” complained of after she read my article Why Older Adults Should Think Twice About Being Landlords. The experience she shared with me is instructive for property owners: “Cheap” is often expensive.

Julie described the $4,000-a-month, high-security, two-bedroom apartment for her and her husband, “Jack,” as pure heaven. At first.

From great to not great

“When we moved in, the entire complex lived up to all the advertised claims and conditions stated in our lease.” That included:

• Concierge service

• 24/7 onsite security management

• Common areas secured every night

• Furniture and cushions removed from the patio nightly to deter vagrancy

• Entrances consistently monitored

• Front desk staffed 24 hours every day

• Attentive, friendly staff

Coffee and breakfast items offered free each morning, wine and cheese in the evening

“While located in a bad part of town,” Julie said, “it still was perfect for the two of us. We had a two-year lease, which matched the time required for our vascular surgery residency at a nearby university medical center.

“From time to time, the property managers — a middle-aged couple — would drop by, asking if anything needed attention. Their concern made us feel so secure and glad that we were living here, even if the rent was high. We were in seventh heaven.” Until…

Things went downhill fast

A year after moving in, Julie said, “Everything began going downhill when the property changed hands. At a meeting with all the tenants, 25-year-old ‘Darren’ was introduced as our new property manager. He has a college degree in real estate development, but no experience as a property manager. He is the (new) owner’s son-in-law and has ‘know-it-all’ stamped on his forehead.

“Within weeks, the building became unsafe due to sporadic front-desk coverage, no one present on weekends, packages left unsecured in the entry (attracting porch pirates) and a broken garage door leading to apartment units that could not be shut.

“Vegetation at the entrance became overgrown, preventing the door from closing, and a remote monitoring service of the building, including the parking garage, was canceled.

“It was as if a ‘Welcome, Burglars’ sign had been erected. Cars — including ours — were broken into. Tenants complained. Darren promised to ‘handle’ the situation, but he did nothing.

“It has become dangerous, and we can’t stay here, Mr. Beaver. There is a year to go on our lease. What can we do?”

Major breach of lease and constructive eviction arguments

I have a soft spot where physicians are concerned. Theirs is a world of cooperation and working with colleagues to help patients — not confrontation.

I suggested sending Darren a polite, conciliatory letter, asking for his help and making clear, “We have no choice but to move.”

I cautioned, “Darren is not the only person who will see this letter. You need to project calm and be in control of your emotions, not blaming, but rather, seeking a mutually beneficial result. In a by-the-numbers manner:

• List all the safety issues that have been brought to management’s attention but never remedied.

• Review what was promised in the lease — and delivered by the prior owners — that has been lacking since new management took over.

• Note that these issues create, at the very least, a major breach of the lease and what can also be considered as constructive eviction.

• Stress the reality of an actual risk of harm to you and that there is no way you can remain as tenants without suffering extreme anxiety, something you did not agree to when moving in.

• Do not blame Darren. Rather, say something along the lines that you are sympathetic to what must be frustrating for him as well and are certain he has tried his best to address these issues.

• Conclude by saying, “It is in everyone’s best interest to cancel the lease. We will continue paying rent on time and fully cooperate with showing our unit and will leave by (date).”

Honey vs vinegar

I suggested — and Julie agreed — that one sentence needed to appear at the very beginning of her notice to end the lease:

“Dear Darren, this is not a letter I would ever have wanted to write. We so enjoyed living here and are not blaming you for the items described below. We know you are a fair person and will do the right thing.”

Within 24 hours, Darren’s father-in-law, the new owner, emailed the couple, agreeing to all of their requests and offering “all the help you might need to relocate. We are sorry to see you leave, but we understand.”

Dennis Beaver Practices law in Bakersfield and welcomes comments and questions from readers,
which may be faxed to (661) 323-7993,
or e-mailed to Lagombeaver1 – at – Gmail.com.

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