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In the Spotlight: Fundamentals of Constructive Eviction

By David P. Resnick and Erin Brechtelsbauer

In market conditions that are favorable to tenants, landlords should be particularly vigilant with regard to the express and implied covenants under their leases. Historically, the tenant's obligation to pay rent and the landlord's obligation to maintain the condition of the premises were held to be independent of one another; thus, when the landlord failed to maintain the condition of its building properly or to provide a tenant with one or more building services as required under its lease, the tenant would be entitled only to sue for specific performance or damages. Over time, however, the doctrine of constructive eviction has developed under the law to allow a tenant the added remedy of terminating its lease when the landlord has failed to perform. Today, constructive eviction may present a commercial tenant with an effective means of both enforcing its rights under the lease and defending against landlord claims of breach.

At the core of a tenant's protection against untenantable conditions in its premises is the landlord's covenant of quiet enjoyment. This covenant, which has sustained a long and meandering evolution in the law, embodies a tenant's entitlement, notwithstanding the express
provisions of the lease, to use and occupy its leased space without disturbance from insufferable conditions that are under the landlord's control, and to certain standards of maintenance of the premises by the landlord. Constructive eviction developed from the covenant of quiet enjoyment when courts sought to offer expanded relief to tenants who are facing the most severe landlord breaches.

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