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How to Build a Case for Constructive Eviction

If your landlord fails to keep your rental unit habitable then you can use constructive eviction laws to stop paying rent and leave.

Constructive eviction is a unique kind of eviction that is performed by a tenant rather than a landlord. It’s usually considered a last resort. When a landlord violates the warranty of habitability by failing to provide a habitable living space as required by law, you can use constructive eviction to terminate your lease, ending your responsibility for rent payments. You can even seek damages in court—but claiming constructive eviction is a tricky legal maneuver, so we highly recommend contacting a local tenants' rights organization or lawyer before moving forward with the process.

1. Make sure the issues you’re facing would qualify

Each state has its own laws regarding constructive eviction, but you can follow the rule of thumb that constructive eviction only applies if the unit has become uninhabitable as a result of the landlord’s negligence, and the landlord has been unresponsive when it comes to having repairs made. If you (or a guest) caused the issue that's making your apartment unlivable, constructive eviction cannot be used.

2. Try to fix the issues with your landlord

To be successful in utilizing a constructive eviction defense, you must have made an effort to communicate with your landlord about the issues. Ideally you did so in writing, so that you can present the letter as evidence to the court. It’s even better to send any communication about repairs via certified mail with return receipt requested, so that you can prove the landlord received the letter.

3. Try to fix the issues with external parties

It’s also a good idea to communicate with a local building inspector or health department before resorting to constructive eviction. This added documentation could strengthen your case in court or make it easier to negotiate with your landlord. Consider having a contractor visit to do a free estimate of what it would take to repair the unit.

4. Keep records and gather evidence

The most important thing to remember about a constructive eviction process is that you should keep records of all of this. If you sent a complaint about the apartment to your landlord by certified mail, make sure you have the proof of delivery. Keep track of any conversations you have with local authorities, and any estimates you may get from contractors about the cost of the repairs. Take photos of the conditions that have made the apartment uninhabitable.

5. Move out

Next, vacate the unit. Be sure to leave it clean, but know that repairing the problem that caused you to move out is not your responsibility. Besides the repair issues, leave the unit as it was when you moved in. Take photos of the unit when you leave so that your landlord cannot claim that you left it in bad condition.

6. Make your case

Your landlord will file an eviction or a rent demand notice because you have not paid rent as you were obligated to by your lease. Either before they do this or when they do this, send a letter stating your case for constructive eviction and include all of your documentation of their failure to make the necessary repairs. Attempt to come to an agreement with them, like a termination of tenancy by mutual agreement.

7. Go to court

Assuming this doesn’t work out, the logical next step will be to go to housing court or small claims court. This is where you will need to argue constructive eviction and provide to the judge all of your proof that the landlord was negligent and that the living conditions violated the warranty of habitability. Anything you have collected to help prove your case will come in handy.

With a constructive eviction case, the burden of proof is on you, and you need to show that your landlord violated their duties and that it had a significant effect on your ability to use and enjoy the premises. The judge will either support your claims, or you will be forced to pay the landlord unpaid rent.

The information provided on this website does not, and is not intended to, constitute legal advice.