Although the law dealing with commercial landlord tenant issues in Nevada is often either confusing or non-existent, the Nevada Supreme Court recently clarified one aspect of the requirement of tenants providing notice to landlords about uninhabitable conditions prior to vacating.
In certain situations, when a leased property is considered unfit for occupancy, and the landlord fails to properly fix the problem, a tenant may be constructively evicted. If that occurs, the tenant is allowed to vacate the property and abandon the lease. But, if a constructive eviction did not actually occur and the tenant abandons the property, he or she could be on the hook for damages for breach of the lease.
New case law regarding constructive eviction
Until recently, the requirements for a constructive eviction were not clear. In the case of Mason-McDuffie Real Estate Inc. v. Villa Fiore Development, 130 Nev. Adv. Op. 83 (Oct. 2, 2014), the Supreme Court clarified exactly what constitutes a constructive eviction such that a tenant is entitled to vacate a property and cease paying on a lease.
Throughout 2006 and 2007, Mason-McDuffie, the tenant, complained to its landlord about water leaks. With each complaint, the landlord had the roof fixed. In October 2007, the landlord was again informed about leaks, and again, he arranged to have them repaired. After that time, the landlord received no notice of further roof leaks. In December 2007, the tenant vacated the property, claiming constructive eviction based on the landlord’s failure to remedy the leaks. But, there was no evidence that the tenant ever informed the landlord about the leaks after October of 2007, despite the tenant calling their own repair companies to investigate the source of the leaks and potential mold. The tenant could not explain why the landlord was not informed of the issues during November and December of 2007.
The Court clarified that four elements must be met to declare a tenant constructively evicted:
- The landlord must act or fail to act.
- The landlord's action or inaction must cause all or most of the property to be considered unfit for occupancy.
- The tenant must actually vacate in a reasonable time.
- The tenant must provide the landlord with notice of the problem and a reasonable opportunity to fix that problem.
As such, the Court held that a landlord cannot be held to have constructively evicted a tenant if the landlord is not aware of a problem and was not given the chance to fix it. A tenant that abandons without giving notice to the landlord of the problem to be fixed will still be liable for damages due under the lease.
In sum, the Court held that a landlord cannot be expected to fix a problem he or she does not know about. Notably, the fact that a landlord has notice of prior problems is not sufficient, valid notice when the landlord reasonably can assume the prior problems have been fixed. As such, a tenant must provide a landlord reasonable opportunity to cure problems or a constructive eviction has not occurred. If a tenant vacates without notice, he or she should be prepared to prove that the landlord received notice of all the issues, otherwise, the tenant will be held accountable for breaching the lease.
For questions about this and other landlord/tenant issues, feel free to contact the attorneys at Clear Counsel Law Group.
