Every renter dreads hearing the word eviction. To most people, the word conjures up images of being kicked out on the street by their landlord for failure to pay rent or some other major infraction. But there’s also a way it can be brought against the landlord, constructive eviction. This is a whole different ball game in which the landlord “evicts” a tenant by not fixing an uninhabitable rental. If you’re looking to get out of a lease early and the conditions in your apartment are severe enough to make it unlivable this can be a valid defense.

Constructive eviction: What is it?

Simply put, constructive eviction is when a landlord interferes, through action or failure to act, with a tenant in a way that prevents them from using the property. It must be proven in court, and if so the tenant is released from any obligation to pay rent on the remainder of their lease term. Essentially it allows the tenant to break the lease without any legal consequences.

What are grounds for constructive eviction?

To claim constructive eviction, you must demonstrate that the landlord has failed to uphold the warranty of habitability conferred on all rental apartments by New York law. The problems must be severe, such as led paint, asbestos, a lack of basic utilities or anything else that makes the unit unlivable or exposes you to a clear and present danger. Tenants also have a right to “quietly enjoy” their unit for the duration of the lease. Tenant harassment or the constant commitment of similar lease violations, such as the landlord repeatedly entering the unit without notice or reason are also grounds for constructive eviction.

How to file a constructive eviction claim

As mentioned, the problems must be serious. A creaking door or peeling (nonlead) paint are not good arguments. The standards are high for this because you are essentially asking the court to conclude that the landlord is forcing you out by making the unit unlivable.
In New York State, you must first move out to claim constructive eviction. But before doing so, you should document the problem to give you the best chance of success. Call 311 and have the Housing Preservation Department or Department of Buildings send out an inspector to document the issues. You should also do your documentation by taking photos, keeping copies of letters you’ve sent to the landlord and call in other experts to confirm the problems such as asbestos, mold, lead paint, etc.

To prove your case, you must demonstrate to an attorney the five following things:

  1. That your landlord owed you a duty, such as providing basic utilities or a residence free from toxic materials like lead paint.
  2. That the landlord neglected this duty.
  3. That because of this neglect the apartment became unlivable.
  4. That you gave the landlord notice of this neglect and plenty of time to fix it.
  5. That you left the apartment within a reasonable amount of time after the landlord’s failure to fix the problem.

Final Thoughts

The courts have shown varying interpretations in what constituent’s constructive eviction, so you must have a rock-solid case. Although it may be possible to withhold rent after you’ve moved out you may have to pay it later back if you don’t win your claim. However, if you do win then your lease will be terminated, and you will be free to move on to more livable accommodation. You might also be liable to sue the landlord for costs and damages caused by the problem and having to move. Before moving ahead with anything, you should consult an attorney on the issue as well as the housing courts in your area.


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