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November 20, 2018

Actual Eviction VS Constructive Eviction

In an actual eviction, the landlord evicts the defaulting tenant, whereas in a constructive eviction the landlord fails to provide the necessary services so the tenant then is legally entitled to cancel the lease.
 
Actual Eviction

The legal process of removing a tenant from the premises for some breach of the lease. Typical grounds for the eviction of a tenant by a landlord include nonpayment of rent, unlawful use of the premises violating the use provisions of the lease (such as conducting a business in a rental unit leased strictly for residential purposes) and noncompliance with health and safety codes.
 
In the case of a partial eviction, the tenant is deprived of the use of part of the premises. Upon eviction, the tenant is no longer responsible for paying rent, unless the lease contains a survival clause stating that the tenant’s liability for rent survives eviction.
 
Constructive Eviction

Conduct by the landlord that so materially disturbs or impairs a tenant’s enjoyment of the leased premises that the tenant is effectively forced to move out and terminate the lease without liability for further rent. This concept is a product of modern property law, which now tends to place more emphasis on the quality of possession or habitability under a lease. Constructive eviction might occur when a landlord cuts off the electricity or fails to provide heating, makes extensive alterations to the premises or attempts to lease the property to others.

Another example would be if the landlord of a highrise apartment building failed to provide elevator service. There can be no constructive eviction without the tenant’s vacating the premises within a reasonable time of the landlord’s act. The tenant’s duty to pay rent is not terminated if the tenant remains in possession. The tenant can sue to recover possession or bring an action for damages based on breach of the covenant for quiet enjoyment.

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