of their residences but falls short of constructive eviction. (217)
discrimination in dispute falls short of constructive eviction.
unless they involve discrimination amounting to constructive eviction.
The California court ruled in favor of the owner, stating that a tenant cannot claim constructive eviction unless the tenant vacates the premises within a reasonable time.
Other decisions focused on the nature of the claimed disturbance to deny constructive eviction claims.
One of the elements a tenant must allege in order to claim a constructive eviction - at least where the alleged condition is not the result of a knowing wrong by the landlord itself - is that tenant have given notice to landlord concerning the condition:
A tenant who contemplates vacating the premises on ground of constructive eviction must give his landlord notice and a reasonable opportunity to correct or remove the condition complained of, when this is feasible.
In addition, to establish a constructive eviction, tenant must show, in addition to abandonment, all the other elements of such a claim/defense, including:
See Anti-Defamation League Foundation, supra, (dismissing claim of constructive eviction based on landlord's building reconstruction work, where interference was, by its nature, "intermittent"); see also, Darnley v.
The Court, on sublandlord's summary judgment motion, dismissed all of the sub-lessee's defenses and counterclaims, except for the defense/counterclaim of constructive eviction.
This theory of independent covenants in turn also explains the basis for the exception noted in Kayser-Roth, that the no-offsets clause does not preclude a defense of constructive eviction. If there is a complete failure of consideration so that the tenant is, in the eyes of the law, not obtaining the leasehold estate for which the rent is consideration because of the landlord's interference with the premises, then - and if, but only if, the tenant also vacates possession - the tenant's obligation to pay rent is suspended.
Silverman had manufactured her claim of constructive eviction
from the Manhattan apartment based on one isolated incident of a smoldering electrical wire in the basement of the subject building.