Real Estate

Constructive Eviction


Landlord/tenant relationships are usually tricky at best. Landlords generally want to protect their investments and some are even emotionally tied to their properties. Tenants want to feel safe, secure and at home. However, sometimes the greatest of accords turn sour and promote ill feelings. What then?

If a tenant in New York State doesn’t pay their rent or violates their lease, the landlord has certain rights under RPAPL 5713 to evict the tenant. Although self-help (taking matters into one’s own hands) is neither advisable nor a viable solution, the landlord does have a legal remedy. He can take the tenant to court and ultimately obtain a warrant of eviction and a judgment for unpaid rents. These laws are meant to protect landlords from being taken advantage of by unscrupulous tenants or, in most cases, tenants who are simply down on their luck.

What happens if the shoe is on the other foot and the landlord does not live up to his or her end of the bargain? For instance, suppose the landlord is not supplying tenants with basic services such as heat, hot water or working plumbing. What can the tenants do if sewage constantly backs up into their apartment or the roof leaks every time it rains and the landlord refuses to make the proper repairs?

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In these cases, the tenants can go to the local building department and file a complaint against their landlord. The building inspectors can then force the landlords to make repairs by imposing heavy fines or taking them to court.

Yet, not all landlords comply with this type of enforcement and may continue to provide poor services to the tenant, giving credence to the term “slumlord.” Some landlords have been known to harass their tenants by creating noisy or noxious environments, or even entering the apartment without notice and for no apparent reason. I have even heard stories of landlords entering tenants’ apartments and helping themselves to food in the refrigerator or letting the tenants’ dog out without their permission!

In cases where the landlord is not providing basic services or is harassing the tenant with bizarre behavior, a Constructive Eviction may be the answer. In a situation in which a landlord’s actions or inactions cause a tenant’s possession and use of the premises to be so unpleasant or inconvenient that the tenant is forced to leave the premises, they can essentially evict themselves through constructive eviction.

This is a legal remedy which essentially severs the lease or rental agreement, and allows the tenant to move out without any further obligations to the landlord. Although this type of relief cannot be used as a ploy to simply not pay rent, it can be used as a defense to an eviction proceeding. If a tenant decides to withhold the rent due to the horrible living conditions or unorthodox behavior of the landlord, it is recommended that the rental moneys be put aside in case the judge orders it to be paid or partially paid.

In order to succeed with a constructive eviction action, a tenant must file a court action or counter claim in an eviction action and prove that the landlord either does something or fails to do something which he has a legal duty to provide, thereby rendering the property uninhabitable.  If the tenant succeeds, he or she will be granted a court order allowing him or her to immediately move out of the apartment with no further responsibility to the landlord.

As with all legal matters, this type of resolution may be considered drastic for the tenant, and can be costly if an attorney is utilized. However, when all other solutions fail, a constructive eviction action may be the answer in order to get out of a toxic living situation without any further responsibility.

Rick S. Cowle is an attorney admitted to practice law in New York, Connecticut, the District of Columbia and the United States Supreme Court. He is president of The Law Office of Rick S. Cowle, P.C., a general practice law firm located at 18 Fair St., Carmel. He can be reached at 845-225-3026 or For more information, visit This article is meant for informational purposes only, and is not intended to create an attorney-client relationship or to give legal advice.

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