June 5, 2020 • By Dennis Beaver
What Every Landlord and Tenant Needs to Know About Constructive Eviction
If, by chance, you’ve been thinking of buying a rental property and one afternoon are feeling a bit groggy but can’t take a nap, then I have a suggestion. Google “Bad Landlords,” followed by “Tenants from Hell.”
Should you also be on blood pressure meds, be sure that you’ve taken your daily dose.
“If anyone thinks that becoming a landlord is a no-brainer–just buy a single-family home or apartment house, find tenants and begin to rake in the money–then you are headed for real trouble,” advises Pasadena, California-based property manager Jon Anthony Dolan.
He added, “You would be surprised at the number of landlords and property managers who boast of never maintaining their properties and are then shocked to discover their names listed as defendants in a lawsuit against them by lawyers who specialize in going after slum lords.”
And that is what almost occurred in Southern California after the following comedy of errors that is testimony to what happens when a landlord hires an incompetent to manage the rental.
A Little Brown Spot in the Kitchen
“Randi” one morning noticed a “funny brown spot” on the floor near her kitchen sink of her rented apartment. She wiped it up, looked under the sink, found no evidence of water, but notified her property manager, “D.P.” suggesting that someone might look into it.
Two weeks passed when “Willard the Wonder Plumber” appears, inspected the sink area and found a leaky connection, forgot to turn off the water and attempted to replace the leaky fixture. The result was a huge flood! (The following YouTube video is something like what occurred, but I will caution readers who are offended by a little bit of profanity, as there is some in the video. It is also hysterical.)
The flood rendered the apartment unlivable, and the technical term which all states use is: “Not Habitable.”
“When something like this happens, both the law and common sense requires the landlord to immediately re-locate the tenant to similar quarters, if possible, or put them up temporarily in a hotel, pending repairs,” Dolan advises.
The technical term for this is Constructive Eviction and means that the law looks at the situation and “constructs” an eviction caused by the landlord or their employees. Often we find Constructive Eviction when slumlords refuse to provide heat, water, or other basic requirements of living in a rental unit.
While rules somewhat vary state-by-state, when this occurs, it allows the tenant to break the rental agreement, obtain a refund of any applicable security deposit, and move.
D.P. initially offered to move Randi to another apartment, “But instead of transferring my security deposit, he insisted on a new one, and I did not have the money” she said, tearfully.
D.P. had an evident problem with the truth or knowing the law as it is illegal for him to demand a new deposit when the tenant is forced to move because of the negligence of his employees.
Let’s Get Real
I got D.P. on a conference call with Randi, and he lied, claiming that Randi delayed reporting the water leak. That was cleared up in ten seconds.
“I understand you wanted to relocate her and insisted upon another deposit. Is that correct?”
“Wuh…Wuh…Well, well, I can’t recall,” he stammered.
“But you know that is illegal, don’t you! Where did you get your certificate as a property manager, from a box of Cracker Jacks?” I sarcastically asked.
“So, now, you are going to refund her deposit, right?”
He replied, “Let me talk with our lawyer and I will call you back in two minutes.”
The Old Letter of Representation Delaying Tactic
He did call back, stating, “Our lawyer wants a letter representation from you.”
When a landlord or property manager gets a lawyer involved in something as clear as this situation, it is the equivalent of them saying, “We are going to delay this for as long as possible.”
So, I replied, “Sure, I will hand you that letter of representation right in front of the television news cameras for the press conference that I will set up later this afternoon at the apartment house. So, what is it? Are you going to refund her deposit, release her from the rental agreement, or look like a complete fool on TV?”
10 Minutes Later
D.P. called. “We are refunding her deposit tomorrow morning during the walk through just to be sure she has not damaged the property. Is that agreeable?
Of course it was, and the next day, Randi got her deposit back and moved out, one happy camper.
Moral to the story: Had the owner checked out D.P. he would have hired someone else!
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.