A lease agreement impliedly covenants that the tenant will have the peaceable use and enjoyment of leased premises that are fit for human habitation. In exchange, the tenant covenants that he will pay rent to the landlord. A landlord may file an eviction proceeding if the tenant breaches the covenant to pay rent; however, if the tenant pays rent and the landlord either physically ejects the tenant from the premises or substantially compromises the tenant's enjoyment of the premises, the landlord has breached the covenant by eviction.

Actual Eviction -- Possession

The tenant is actually evicted when he or she has been physically removed from the premises, such that he or she can no longer possess the leased premises. The key to actual eviction is the landlord's deprivation of the tenant's possessory right in the leasehold. If the tenant has only been removed from a portion of the premises, he or she may remain on-site and withhold rent for that portion until full possession has been restored. If the tenant has been removed from the entire premises, the tenant may treat the entire lease as having been terminated. His or her obligation under the covenant to pay rent for the entire premises is also terminated because it is dependent on his possession of the entire leasehold. The tenant may sue the landlord for damages caused by the landlord's breach of the covenant of peaceable use.

Constructive Eviction -- Enjoyment

The tenant is constructively evicted when the landlord's affirmative act or breach of a duty to act has substantially compromised the tenant's enjoyment of the premises. The key to constructive eviction is the landlord's interference with the tenant's ability to enjoy the premises. The landlord's interference must be such that the tenant cannot enjoy the premises as intended when he or she executed the lease.

A typical example of constructive eviction is the landlord's failure to provide sufficient heat during the winter that renders the premises uninhabitable. If the landlord was not aware of the heating condition, the tenant is obligated to provide notice to the landlord and a reasonable time to provide the repairs.

If the tenant has been constructively evicted, he or she must vacate the premises within a reasonable time in order to terminate his or her obligation to pay rent and to trigger the landlord's liability for damages. However, the longer the period during which the tenant remains in the premises, the less likely a court will find that the tenant's enjoyment of the premises has been affected by the landlord's action or failure to act.

Copyright 2010 LexisNexis, a division of Reed Elsevier Inc.