Constructive Eviction

Posted by Laura 19sc on July 14, 2014

One of my more memorable encounters with an individual client occurred when I first started working at the Tenant Resource Center.  It takes a while for counselors to get their sea legs, and I was no different.  The client had a big impact on me.

The client was a tenant, a mother with a husband and young children in the household, with health problems due to the mold in her rental housing. She was ill - her hair had fallen off in chunks and her skin was discolored. Her children were sick - asthma and pnuemonia. The building inspector who came to inspect the unit felt it wasn't safe enough to go into. 

Sometimes the lack of options for a client can be breathtaking.  Sometimes, the options just take chutzpah. Constructive eviction is a little bit of both.

In a situation where there is a clear need for repairs, and the landlord hasn't been able to take care of those repairs, and the tenant wants to move out, then constructive eviction may be the (last resort) solution, like it was for this client.

Here's how it works: "Constructive eviction" is a defense used in court, when:

repair issues have been terrible, and
the tenants have moved out because of the repair issues, and
the landlord is suing those tenants for leftover rent.
If a tenant goes to that court hearing and makes the judge believe that they moved out because the rental unit was unlivable (that they "constructively evicted"), then that's the best case scenario for constructive eviction.

The Law: Wis. Stat. 704.07(4) says, "If the premises become untenantable because of damage by fire, water ...or because of any condition hazardous to health, ... the tenant may remove from the premises unless the landlord proceeds promptly to repair or rebuild or eliminate the health hazard ...  or the tenant may remove if the inconvenience to the tenant by reason of the nature and period of repair, rebuilding or elimination would impose undue hardship on the tenant....

If the tenant justifiably moves out under this subsection, the tenant is not liable for rent after the premises become untenantable and the landlord must repay any rent paid in advance apportioned to the period after the premises become untenantable."

A translation of that law might be: if the rental unit becomes unlivable, and the landlord can't make repairs right away (or if the process of repairing would be unlivable), then the tenant can choose to move out.  If the tenant chooses to move out, then the tenant can't be held responsible for rent from the point when the rental unit became unlivable.

Constructive eviction is really a last resort kind of solution.  A law can't actively keep a tenant safe ("I'll keep this fire at bay," says the law in Opposite Land), and so if a tenant feels unsafe, they should deal with that as they see fit.  In order to deal with the money side of things, though, a tenant will be most successful claiming constructive eviction in court if they have also:

Written letters asking the landlord to make repairs
Asked for help from a local building inspector or health department to document the situation. There are some building inspector phone numbers listed at the bottom of our repairs page (or you can contact us if yours isn't listed), and local health department phone numbers can be accessed here. If it's a small enough place where there isn't a building inspector or health department that can come out, it might not be a bad idea just to have some professional contractor come out to see what's wrong and what it would take to fix. Make sure to keep records of all those visits.
Tried to negotiate.  For tenants, they should think about what they want (the lease ended by mutual agreement?) and do their best to try and work it out. Also a good idea to write a follow up letter, no matter what the result was.
For a tenant claiming constructive eviction, the steps are:

Gather evidence of The Big Problem, such as: communication with the landlord/manager about the problem, photos, statements from Building Inspector/Health Department/ Private Professional Contractor.
Either wait for the landlord to sue you (the tenant) for unpaid rent, or the tenant can sue the landlord for rent that was paid after the problem began.  Either way, if the case is for an amount less than $10,000, it will end up in Small Claims Court.  See our Small Claims Court Tips here.
You should know: for a Big Problem to be eligible for constructive eviction, then it can't be caused by the tenant.

Sometimes it's simply not possible for landlords to do all the necessary repairs.  Sometimes those repairs are expensive, or weather doesn't allow repairs to be done.  Here are some ways that landlords can avoid dealing with constructive eviction:

Make repairs as soon as you can after you know about a problem - it means that when the unfixable ones come up, tenants will see that the landlord has a history of making a reasonable effort to do right by repairs.
If the problem isn't fixable, then let tenants out of lease if the place is unlivable (rental housing in Wisconsin has an "implied warranty of habitability," which means that it's really not legal to be receiving rent on a home that isn't livable).
Work out an agreement with the tenant about how to resolve the repairs.  Maybe it means hiring the tenant to do some of the work? (It's easiest for all if it's a separate contract)  Maybe it means letting them live in another rental unit while the problems get resolved?  Maybe it means helping them find a place to live in for a couple months while you're fixing the problem?  There are lots of creative solutions possible here.
Lower the rent for the time that the repair problem is present.  If you want a guideline, Madison General Ordinances have a chart for rent abatement that you might choose to follow.  To find it, go here, click on "Chapter 32 - Landlord and Tenant" and then scroll down to page 32-8 for the beginning of the chart.
Claims of constructive eviction are for serious "repair" issues. When housing counselors at the TRC talk about repairs, it can often be misleading for tenants.  We usually mean "anything which needs to be physically fixed." Here are some things that are "Repair" issues that might seem like they should be in a different category:

Infestations (bugs, rodents, vermin, raccoons, mean squirrels, bed bugs).
Heat (too cold in the winter is definitely a big livability problem, too hot in the summer is more debatable).
Mold.
Appliances, if they were provided with the rental unit.
The stuff you'd expect is here, too: plumbing, electrical, structural things.