Substandard Housing

With the industrialization of the United States, many poor urban areas were populated but with inhabitable conditions. Mice, filth, decay, and disrepair were the conditions of the areas. See In re Clark, 96 B.R. 569 (E.D. Penn 1989). Zoning laws tried to help resolve the issue but many of these were ignored. Many landlords refused to make repairs so they could make as much profit as possible.

Marketization did not resolve the problem because many landlords relied on standard forms which provided little to no actual remedy. The zoning laws were ignored and often were an issue with racial segregation to these downcast neighborhoods.

Constructive Eviction

There are two main ways for an eviction to happen, constructive and actual. Actual eviction is a process taken by the landlord to remove the leasee from the premises. The act ends the lease because the leasee no longer has quiet enjoyment of the place. Constructive eviction is often taken by the tenant who argues that certain conditions made by the wrongful conduct of the landlord make the location not habitual to the point where habitation is the “functional equivalent” of actual eviction.

The question then turns to what is considered unlawful conduct by the landlord.

Fidelity Mutual Life Insurance Co. v. Kaminsky

768 S.W.2d 818 (Tex. Ct. App. 1989).

Fidelity is the landlord and plaintiff who lost in trial court and appealed.


Whether Fidelity breached a duty to allow quiet enjoyment of the property.


A constructive eviction requires the tenant to leave because of the landlords conduct or lack of conduct that interferes with the tenant’s quiet enjoyment of the property. To show that there was a breach, the tenant needs to show:

  1. From inference, the landlord no longer wished the tenant to enjoy the premises.
  2. The landlord committed an act or omission with interfered with the tenant’s leased purpose.
  3. The act or omission permanently deprived the tenant of use and enjoyment of the premises.
  4. After the act or omission occurs, the tenant abandons the property within a reasonable time.

There was constructive eviction. Affirmed.


Fidelity and Kaminsky entered into a lease where Kaminsky would be the tenant of a building to provide medical services. Dr. Kaminsky was a gynecologist who also performed abortions. Whenever an abortion was scheduled, protests occurred outside of the building and sometimes entered the building. Kaminsky complained to Fidelity asking for help in removing the protesters but Fidelity only acknowledged the situation and did not put forth any efforts to protect the premises (including providing a security officer which was included in the lease). Additionally, the police would not get involved because they required complaints to come from the landlord or the agent to take action. Simply put, Fidelity allowed the protesters continued access to the property.


A jury could have found that all the elements were met. Fidelity presented two main arguments. First, a constructive eviction cannot be upheld for the acts of third parties. Second, that the act or omission from Fidelity permanently deprived Kaminsky of use of the office.

The court rejects the first reason. Third parties in this case were not asked by Fidelity to leave. If Fidelity had fulfilled their duty to protect the premises and the protesters still remained, then there could not have been constrictive eviction. However, that was not the case because Fidelity acknowledged but did nothing else to remove protecters.

Additionally, the court rejects the second reason. The protesters would often block access to the premises so patients were unable to enter.

Additional Notes

Often there is a covenant of quiet enjoyment. In this case, the covenant was express. However, the covenant can also be implied. An implied covenant of quiet enjoyment is the ability to use the land without any interference by the landlord. Traditionally, this was only breached by actual conviction. Later, the courts determined that the conduct of the landlord can be so egregious that their actions constructively evict the tenant.

Constructive eviction is derived as an alternative to actual eviction. There are three elements of constructive eviction:

  1. Wrongful conduct . . .
    • The protesters in the common areas of the property.
    • Lack of security when security was promised.
  2. . . . by the landlord . . .
    • Omission from the landlord to prevent the protests from taking place on and in the property. Fidelity could have informed the police and protesters and provided inner security (only the landlord has control over who is in the common areas).
  3. . . . that substantially interferes with the tenant’s use.
    • Even interfering with the property once a week substantially interferes with the use.

The legal result is that Kaminsky does not have to pay for the remainder of the rent because he was constructively evicted.

JMB Properties Urban Co. v. Paolucci

604 N.E.2d 967 (Ill. App. Ct. 1992).

JMB is the plaintiff seeking the payment of rent for breach of lease. Lost in trial court and appealed.


Did the defendant waive their right to constructive eviction?


The tenant must leave within a reasonable time to present a constructive eviction argument.


Here, the tenant did not leave within a reasonable time. As such, the case is reversed.


JMB is the landlord of the mall who leased out space to Paolucci, a jewelry store. Additionally, the mall leased out property to a stereo company (Barretts) in the space next to Paolucci.

Barretts played the music loud. So loud that it could shake the displays of the jewelry sometimes even tipping them over. The jewelry store lost many customers during this time. While the two companies shared the mall together, Paolucci complained over 500 times to the landlord and threatened to sue Barretts.

Despite the complaints, the defendant and Barretts shared the space together for two years before the defendant renewed their lease for an additional six years. The new lease stated that the defendant had to sell jewelry in the mall for the entire lease and could not sell anywhere else within a five mile radius. About 3 years into the new lease (and six months after Barretts had left the mall), the defendant did not pay rent and then moved out one month later. The new location was within five miles of the mall.

As such, the plaintiff sued for the month of rent not paid plus the remainder of the rent for breach of the lease.


The trial court found that a constructive eviction had occurred. However, this court reversed because the defendant did not leave within a reasonable time. Here, the defendant’s dealt with the noise for two years when they had the option to renew. They could have left then, but chose to stay. Additionally, they stayed for an extra four years into the new lease and left six months after Barretts left. Even if they were waiting for the construction to finish (during the six months after the Barretts left) that does not explain why they did not leave earlier when they had ample opportunity to do so.

Additional Notes

All the standard elements, except one, of constructive eviction was met (wrongful conduct by the landlord, which substantially interferes with the use). Here, the landlord did not have the other lease turn down the music, which music substantially interfered because customers complained (even though the complaints were minimal). However, the defendant failed to move out within a reasonable time. Below is the timeline:

  • 1978 – Moves into the mall
  • 1984 – Barretts move into the mall
  • 1986 – Renews the lease for an additional 6 years
  • Jan 1990 – Barretts move out
  • Aug 1990 – Defendant moves out and claims constructive eviction

This timeframe was too long to be reasonable. So, we need to consider how long it takes to find a new location, establish the correct features, etc. The timeline is dependent and determined on a case-by-case basis.

In summary, there are four elements of constructive eviction

  1. Wrongful conduct
  2. by the landlord
  3. which substantially interferes with the use of the property.
  4. The defendant needs to leave within a reasonable time.
    1. Give the landlord notice of the issue.
    2. Allow the landlord a reasonable time to resolve the issue.
    3. Leave

Implied Warranty of Habitability

While the constructive eviction doctrine can be used to protect either residential or commercial tenants, it is most often used by commercial tenants. This is because most residential tenants are protected under an implied warranty of habitability.

Wade v. Jobe

818 P.2d 1006 (Utah 1991).

Wade is the plaintiff, suing for unpaid rent, and won at trial. Jobe is the defendant who filed counterclaims, which were dismissed and she appeals.


“May a tenant recover at common law for breach of a warranty of habitability?”


The implied warranty of habitability requires landlords to maintain bare living requirements so the premises are fit for human occupation. This includes supplying hot water but does not apply to minor deficiencies (e.g. repairing blinds).

Potential remedies include:

  1. Withholding rent
  2. Repairing and deducting rent by withholding rent.
  3. Sue for damages
  4. Terminate the lease

There is a modern common law implied warranty of habitability. Reversed and remanded to determine if the circumstances was a breach.


Here, the defendant and her three children had moved into a home to rent. Shortly after moving in, she realized there were substantial problems with the home. The basement would be flooded with sewage which gave a foul odor to the home and put out the boiler light so there was no hot water. Consequently, the landlord came and pumped out the sewage onto the sidewalk and then relit the boiler. However, the problem persisted. Inspections were made saying that the property was not habitable. So, the defendant withheld rent until the problem was resolved. Soon thereafter, the defendant moved out.

Thus, the action here was that the plaintiff wanted to recover rent that was withheld and the defendant counters by arguing that there was a breach of implied warranty of habitability.


Although the traditional common law did not recognize any rights for a tenant (the tenant rented the land “as is” and was required to make any repairs on their own,” modern common law has shifted significantly. Today, common law recognizes that individuals rent a structure on the land, not the land, and as such expect that structure to have sufficient living conditions.

Thus, there is a policy reason for maintaining an implied warranty for habitability. As such, the court accepts the implied warranty for habitability. This includes the landlord’s duty to maintain bare living requirements and allows the tenant to remedy the issue by withholding rent (to incentivize the repair) or to deduct the from the rent the cost of conducting the repairs themselves.

If the tenant needs to recover damages, they can adopt a percentage diminution approach, where the “tenant’s recovery reflects the percentage by which the tenant’s use and enjoyment of the premises has been reduced by the uninhabitable conditions.”

Additional Notes

Prior to the rule adopted here, the tenant was responsible for all repairs under the doctrine of permissive waste because of the rule of caveat emptor (let the buyer beware). This means that the tenant has the opportunity to bargain, inspect, and determine the use of the land. A lot of the time, this made sense because tenants were focused on the productivity of the land rather than the use of a structure.

Here, the court transitions to a modern approach by adopting the warranty of habitability. Policy reasons for this adoption is that the tenant and the landlord lack the skills to make repairs, so it makes sense to put the responsibility on the landlord. Additionally, there is an unequal bargaining power, where the landlord has much more bargaining power. Finally, the norms of society push for higher quality of housing codes.

The rule:

“The warranty of habitability requires that the landlord maintain ‘bare living requirements,’ and that the premises are fit for human occupation.”

Violation of housing codes shows that the warranty has been breached. However, homes are still able to be in compliance with the codes but still breach a warranty if there is a substantial hazard to the health and safety of the occupants.

  • Withholding rent until the landlord fixes the issue.
  • Repair and then later deduct the cost from the rent.
  • Sue for damages
  • Terminate the lease

Landlords and tenants are not allowed to waive warranties of habitability.

Also note that what is determined as bare living requirements vary from state to state. Additionally, the remedies vary from state to state. For example, in Iowa, the landlord has a responsibility to provide hot and cold water, HVAC, etc. and provide repairs within 7 days. If the repairs are not made, then the tenant can repair and deduct but is not allowed to withhold rent.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Categories: 1L Spring, Property

Will Laursen

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