Commercial tenants often labor under a misapprehension about what it means to be “constructively evicted.” Let’s set the record straight:

In Connecticut, the doctrine of constructive eviction essentially arises when a landlord, while not physically dispossessing a tenant from the premises, does some act or deed which renders the tenant’s demised premises untenantable. Further, in addition to establishing that the premises are untenantable, the tenant must affirmatively allege or prove the following: (1) the problem was caused by the landlord; (2) the tenant was forced to vacate the premises as a direct result of the problem; and (3) the tenant did not vacate until after allowing the landlord reasonable time to cure that problem. So, essentially what is involved in this concept of constructive eviction is that the tenant must first establish a threshold condition, i.e., “untenantability,” before it can proceed with the additional three requirements. Under Connecticut law, all three elements must be proven in order for constructive eviction to be available to the tenant.

Most tenants do not have difficulty proving the first prong — that the problem was in fact caused by the landlord. However, the second prong is often tricky and the third prong is the most overlooked and will often provide the landlord with sufficient basis to defeat the tenant’s claim that it was constructively evicted.

Who or What Caused the Premises to be Untenantable?

The law is clear that the first element of constructive eviction requires that it must have been the landlord who interfered with the tenant’s peaceful enjoyment of the Premises. So that if a tenant initially caused a problem that deteriorated into the untenantable condition, which ultimately caused the tenant to leave the premises, then that tenant may not be successful in clearing the first hurdle. On the other hand, if the problem was caused by, or was due to actions taken by the landlord (i.e., undergoing a major demolition not carved out in the lease), then the tenant will be able to survive the first hurdle and proceed to the next two prongs.

Did the Tenant Vacate Because of the Specific Problem?

As Practitioners, we often persuade our clients to agree to stipulated judgments in the summary process/eviction phase of our cases. Quite apart from the practical effect of providing a “date certain” for the tenant to vacate the premises, stipulated judgment (“Stips”) may also turn out to be valuable in inoculating the landlord against a claim by the tenant at a future date that it had been constructively evicted. Here’s why: Arguably, if the tenant must prove that it vacated the premises as a direct result of the problem caused by the landlord, then the stipulation signed by the tenant a few months back will surely defeat such claim, because the tenant in fact vacated as a direct result of a summary process judgment entered against it and for no other reason.

In most circumstances, the tenant may not have vacated as a direct result of the “landlord’s problem.” Often, the “vacating” may have had less to do with the problem caused by the landlord than some financial problems encountered by the tenant — well short of its Lease Termination date. Consequently, the “constructive eviction” claim becomes a convenient foil for the tenant who is in arrears and has no alternative but to vacate the premises, thereby justifying the early termination of its Lease.

Was the Landlord Given an Opportunity to Cure the Problem?

In most constructive eviction cases, the third prong always proves insurmountable for the tenant. Remarkably, most tenants who are intent on using this theory simply refuse or neglect to afford the landlord the opportunity to cure the problem, and so they vacate before giving the landlord the “reasonable time” to cure the problem. As mentioned at the outset, a viable claim for constructive eviction requires all three elements. Consequently, even if the tenant can prove by clear and convincing evidence that the problem was in fact caused by the landlord, and that the tenant vacated the premises as a direct result of the landlord’s problem, if it cannot establish that the landlord was given a reasonable opportunity to cure, then the tenant’s claim for constructive eviction will surely fail. Finally, one last item about constructive eviction needs to be underscored: the claim of being constructively evicted is intended to be utilized as a shield against a landlord’s claim for unpaid rent for monetary damages, and properly asserted as a “special defense.” It is not an affirmative cause of action for monetary damages and therefore must not be used by the tenant as a sword against the landlord.

Practice Tips

• The Lease should clearly and succinctly define the term “untenantable” so that a court is forced to defer to this definition in determining whether this threshold element existed in the first place.
• The Lease should include a clear set of protocol regarding the landlord’s duty to repair damages, such as requiring written notice to a designated individual or two; time frame to cure (i.e., 30 days); etc.
• The Quiet Enjoyment provision in the Lease must be preceded by a condition such as: “so long as Tenant is not in default of any provision of this Lease, Tenant shall enjoy quiet enjoyment of the Demised Premises…” ©