A “constructive eviction” is an extreme remedy asserted by a tenant to terminate a lease before its expiration date. This remedy is often asserted by tenants seeking to break unfavorable or undesirable leases. It can also be asserted as a defense to a landlord’s claim for unpaid rent following the tenant’s early departure from the premises.
In Virginia, the burden of proving a constructive eviction rests with the tenant. The tenant must prove that:
(1) a defective condition existed on the premises which deprived the tenant of beneficial enjoyment of the premises;
(2) the defective condition was the responsibility of the landlord to repair;
(3) the landlord breached the lease by failing to repair the defective condition;
(4) the tenant gave notice to the landlord that it was in breach of the lease for failing to repair the defective condition; and
(5) the tenant vacated the premises within a reasonable time after the defective condition deprived the tenant of beneficial enjoyment of the premises.
By including provisions in the lease that limit the tenant’s rights upon an alleged loss of beneficial enjoyment of the premises, a commercial landlord can protect itself from an assertion of a constructive eviction.
First and foremost, the lease can state that no default on the landlord’s part shall constitute a constructive eviction of the tenant. While this provision may be difficult to enforce in some jurisdictions under the common law, it may discourage the tenant from vacating the space and then claiming a constructive eviction. If the lease provides as an alternative remedy that the tenant is entitled to an abatement of rent for the period of time that it is deprived of beneficial enjoyment of the premises, this will strengthen the landlord’s position. Second, the lease should require the tenant to provide the landlord with detailed, written notice of any alleged lease default. It should also provide the landlord sufficient time to cure the alleged default. Third, the lease should narrowly and specifically define the landlord’s responsibilities with respect to repairs, replacements, utilities, and maintenance of common areas (including parking lots and building access points). Heating and air conditioning problems are commonly cited by tenants to support claims of constructive eviction; accordingly, the lease should clearly define the landlord’s responsibilities with respect to heating and air conditioning. The landlord should also carefully document all service and repairs to the HVAC systems. Finally, to the extent possible, the landlord should grant itself the right to relocate a tenant to a different location or premises in the event the leased premises are rendered untenantable.
In summary, a well written lease will dramatically limit a tenant’s ability to assert a constructive eviction against the landlord.