Constructive Eviction

Elements

A constructive eviction results from an active interference with, or disturbance of, a tenant's possession by the act of the landlord when all or a substantial part of the premises is rendered unfit for occupancy for the purpose for which it was demised.

Baley & Selover v. All Am. Van & Storage, 97 Nev. 370, 373 (Nev. 1981)

Example Cases

Proof

Damages

Defenses

Misc

Breach of quiet enjoyment

Winchell contends that the district court erred in granting judgment as a matter of law on his cause of action for breach of the covenant of quiet enjoyment. HN8The purpose of the covenant of quiet enjoyment is to secure tenants against the acts or hindrances of landlords. n15 Therefore, to prove a sufficient issue for breach of the covenant of quiet enjoyment, the tenant need only provide evidence demonstrating constructive eviction; actual eviction is not required. n16 We conclude that actual eviction is not a prerequisite to a claim for breach of a covenant of quiet enjoyment because such a prerequisite would increase the tenant's suffering by requiring him [**14] to await the landlord's eviction before asserting breach of the covenant.

Winchell v. Schiff, 193 P.3d 946, 952 (Nev. 2008)

Constructive eviction is a well-established concept in this state. We have held that constructive eviction occurs when, through the actions or inaction of the landlord, the whole or a substantial part of the premises is rendered unfit for occupancy for the purpose for which it was leased. Las Vegas Oriental v. Sabella's of Nev., 97 Nev. 311, 313, 630 P.2d 255, 256 (1981) (failure to provide adequate heating and air conditioning to restaurant and lounge area was constructive eviction when those areas were an integral portion of the business). When constructive eviction occurs, the tenant must treat the landlord's interference as an eviction and vacate the premises within a reasonable time. Portal Enterprises, Inc. v. Cahoon, 102 Nev. 107, 109, 715 P.2d 1324, 1326 (1986) (approximately three months considered reasonable). No constructive eviction results if the tenant continues in possession even though disturbed in the beneficial enjoyment of the premises. Baley & Selover v. All Amer. Van, 97 Nev. 370, 373, 632 P.2d 723, 724 (1981) (retaining premises for two years after an inconvenient situation resulted due to other tenants' use of parking lot negated possibility of constructive eviction).

Yee v. Weiss, 110 Nev. 657, 661 (Nev. 1994).

Constructive eviction of a business

In order to show constructive eviction of a business, it is necessary to provide more persuasive evidence than simply verbal complaints. The tenant must show that the landlord's actions or inactions caused the premises to be entirely unfit for the use for which the tenant leased them. Las Vegas Oriental, 97 Nev. at 313, 630 P.2d at 256. We cannot conclude from the evidence presented that such was the case here. Accordingly, we hold that the district court erred in concluding that the Yees constructively evicted Weiss.

Yee v. Weiss, 110 Nev. 657, 661 (Nev. 1994)

Tenant must elect to vacate

When a constructive eviction occurs, the tenant must elect to treat such interference as an eviction, and surrender the premises within a reasonable time. Baker v. Simonds, 79 Nev. 434, 386 P.2d 86 (1963). The lessee terminated its lease and vacated the premises within a reasonable time. The County issued its order in the fall of 1980. The lessee vacated the premises and terminated its lease on December 31, 1980. On January 1, 1981, the County ordered the Theatre to cease operations until the water quality was brought up to standard. Thus, the lessee in the instant case acted promptly and did not waive its right to claim constructive eviction.

Portal Enters. v. Cahoon, 102 Nev. 107, 109-110 (Nev. 1986).

Landlord has the duty to pay for government mandated repairs

If repairs ordered by a public authority are substantial, or structural in nature, such that they could not have been contemplated by the parties when the lease was executed, the lessor, not the lessee, is responsible for making them. Polk v. Armstrong, 91 Nev. 557, 540 P.2d 96 (1975). The reason for the rule is that any alteration or repair ordered by a public authority would ordinarily be outside the tenant's common law duty to repair, and the expenses of compliance would more properly be regarded either as capital expenditures or as necessary carrying charges to be paid out of rent. Id.For a lessee to make structural repairs that would revert to the benefit of the lessor would be inequitable. Id. The Theatre's sole source of water was a water well located in the basement of the leased premises. Possible methods to correct the water quality included installation of a reverse osmosis plant, connection with the water district, or sinking a deeper well. The cost of any of these methods was substantial. The lease was for a short duration, five years. At the time of the Theatre's closure only nineteen months of the lease remained. The improvements were necessary to the continued operation of the Theatre. The benefit of the expenditure reverted to the lessor. We conclude that the repairs were substantial and not within the contemplation of the parties. See, Polk at p. 561. The lessor had the duty to make the necessary improvements pursuant to the County's order. Failure of the landlord to perform the government-ordered alterations constituted a constructive eviction. See,Polk at p. 562; Scott v. Prazma, 555 P.2d 571 (Wyo. 1976); Magnolia Warehouses v. Morton Realty Co., 117 S.E.2d 552 (Ga. 1960).

Portal Enters. v. Cahoon, 102 Nev. 107, 109 (Nev. 1986)

Must vacate for constructive eviction, but not for breach of lease

Tenants' complaint stated a cause of action for breach of the covenant to repair the roof. This is a separate cause of action from constructive eviction. Although a tenant must abandon the leased premises in order to maintain constructive eviction as a cause of action or as a defense to the landlord's action for rent, Medical Multiphasic v. Linnecke, 95 Nev. 752, 602 P.2d 182 (1979), a tenant may nevertheless remain in possession and sue the landlord for breach of the lease. Guntert v. City of Stockton, 126 Cal.Rptr. 690 (Ct.App. 1976); Perry Properties v. Servico Protective Covers, Inc., 399 N.Y.S.2d 744 (App.Div. 1977). To hold otherwise would deprive the tenant of his right to retain his leasehold and enforce the lease covenants. For this reason it was error for the court to grant summary judgment against tenants on their claim for damages for breach of covenant to repair the roof.

Hosmer v. Avayu, 97 Nev. 584, 586 (Nev. 1981).

Definition

Baley & Selover v. All Am. Van & Storage, 97 Nev. 370, 373 (Nev. 1981).

Furthermore, appellant [***5] operated under the conditions it complains of until vacating the premises in July, 1976. As an additional requirement for constructive eviction the tenant must treat the interference as an eviction and surrender the premises within a reasonable time. No constructive eviction results if the tenant continues in possession even though disturbed in the beneficial enjoyment of the premises. Medical Multiphasic v. Linnecke, supra; Baker v. Siminds, 79 Nev. 434, 386 P.2d 86 (1963).

Baley & Selover v. All Am. Van & Storage, 97 Nev. 370, 373 (Nev. 1981)

As we held in Baker v. Simonds, 79 Nev. 434, 437, 386 P.2d 86, 88 (1963), HN1a constructive eviction occurs when through the landlord's actions or inaction "the whole, or a substantial part, of the premises is rendered unfit for occupancy for the purpose for which it was demised." Accord, Medical Multiphasic v. Linnecke, 95 Nev. 752, 602 P.2d 182 (1979). In the instant case, evidence was adduced that the lounge and bar area were integral portions of the business of the supper club and that loss of the use of this portion of the premises was a significant detriment to respondent. The record reveals substantial evidence from which the trial court could properly determine that the failure to provide heating and cooling to the lounge and bar area constituted a constructive eviction.

Las Vegas Oriental v. Sabella's of Nevada, 97 Nev. 311, 313 (Nev. 1981)

Constructive eviction results from an active interference with, or disturbance of, the tenant's possession by an act of the landlord which renders the whole, or a substantial part of the premises, unfit for occupancy for the purpose for which it was demised. Medical Multiphasic v. Linnecke, 95 Nev. 752, 602 P.2d 182 (1979). Whether constructive eviction has occurred is a factual determination to be made by the trier of fact. Clifmar, Inc. v. Lee, 94 Nev. 594, 584 P.2d 157 (1978). Where the trial court, sitting without a jury, makes a finding upon conflicting evidence that constructive eviction has occurred, that [***3] finding will not be disturbed on appeal where it is supported by substantial evidence. Id.

Krieger v. Elkins, 96 Nev. 839, 841 (Nev. 1980)

Constructive eviction and abandonment are factual determinations to be made by the trier of fact.

Clifmar, Inc. v. Lee, 94 Nev. 594, 596 (Nev. 1978)

A landlord is not guilty of constructive eviction by commencing an unlawful detainer action against a tenant who has not paid rent as agreed.

Medical Multiphasic Testing v. Linnecke, 95 Nev. 752, 755 (Nev. 1979)