Actual Eviction v. Constructive Eviction

Actual eviction of a tenant by its landlord consists of the removal or exclusion of the tenant from the premises by the landlord’s physical acts—such as changing the locks and removing the tenant’s personal property—or by threats of violence equivalent to force. Actual eviction may also be accomplished by order of a court.

In contrast, a constructive eviction is an intentional act or omission of the landlord that (1) deprives the tenant of the use and enjoyment of the leased premises or (2) deprives the tenant of a livable (habitable) home and causes the tenant to abandon the premises. A constructive eviction occurs when a landlord interferes with one of these tenant rights to such a degree that the tenant has no reasonable choice or an alternative to permanently leaving the premises.

For example, if a residential landlord fails to comply with the implied warranty of habitability by refusing to provide the basic living conditions and make the necessary repairs for the leased premises to be livable, the tenant may vacate the premises (“quit the lease”) without further obligation under the lease.

If a residential tenant believes it has been constructively evicted from the leased premises, the tenant may file a lawsuit against the landlord for wrongful eviction and may request that it be relieved of its obligation to pay the remaining rent due under the lease agreement.

If the judge or jury finds the tenant was wrongfully evicted (by constructive eviction), the court may award the tenant:

• its actual damages, including general damages for the tenant’s lost benefit of the bargain if the market value of the lease exceeds the remaining rent payments;

• special damages for moving expenses, prepaid rent;

• exemplary or punitive damages;

• attorney fees;

• prejudgment interest;

• postjudgment interest; and

• costs of court.

Implied Warranty of Habitability

A residential tenant’s claim of constructive eviction may be based on the landlord’s breach of the implied warranty of habitability. In many states, courts recognize an implied warranty of habitability in residential leases. An express warranty is a warranty or guarantee that is specifically stated, whether written (in the lease agreement) or spoken by the landlord to the tenant. In contrast, an implied warranty is a warranty that is not written or spoken but is implied by law.

The implied warranty of habitability generally requires the landlord to maintain the leased premises in a livable condition of basic living and safety standards—including hot water, drinkable (potable) water, heat, electricity, gas, ventilation, smoke detectors, locks, working bathroom and toilet, removal of insects and rodents, and compliance with local building codes.

The implied warranty of habitability may require a landlord to make repairs and provide basic living conditions even if the lease agreement does not obligate the landlord to make repairs.

Right to Quiet Enjoyment

In many states, courts recognize a landlord's implied warranty or covenant (promise) of quiet enjoyment in a residential lease agreement. The implied warranty or covenant of quiet enjoyment generally requires the landlord to prevent unreasonable and unexpected noise and other disturbances that might prevent the tenant from enjoying the peace and quiet of the leased premises. The implied warranty or covenant of quiet enjoyment is often referred to as the tenant's right to quiet enjoyment.

Some states—such as California—have specifically stated in their statutes (laws enacted by the state legislature) that every residential lease agreement includes an implied covenant of quiet enjoyment. City and municipal codes and ordinances may also provide for an implied covenant of quiet enjoyment. And some residential lease agreements include an express (stated) covenant of quiet enjoyment.

Quiet enjoyment can be difficult to define due to the great variations in residential living in the United States. A tenant who leases an apartment on a busy street or bar district in a large city cannot reasonably have the same expectation of quiet as a tenant who leases a home in the countryside.

But there are some disturbances that a tenant could not reasonably anticipate and should not have to suffer. Some examples of disturbances that may interfere with a tenant’s right to quiet enjoyment include:

• Ongoing or recurring disruptive noises or behaviors from neighbors, such as loud music, barking dogs, late-night parties (if the landlord won’t stop them), or loud domestic arguments from neighboring apartments

• A landlord entering the leased premises too often, unnecessarily, or without proper notice

• Unnecessary, ongoing, and previously undisclosed construction, improvements, upgrades, or maintenance work that continues much longer than initially stated

• A landlord harassing a tenant or a tenant’s guest in person or by phone

• Cockroaches, rats, or other pests or vermin living in the walls and making audible noises

In contrast with these recurring or ongoing nuisances or disturbances that may breach the landlord’s implied warranty or covenant of quiet enjoyment, reasonable or one-time disturbances that don’t necessarily breach the landlord’s implied warranty or covenant of quiet enjoyment include:

• emergency maintenance or repairs in the leased premises

• scheduled maintenance or repairs or upgrades completed in the leased premises when the landlord provides the proper notice that it or its representative will be in the leased premises for this purpose

• upstairs or adjoining neighbors walking around, talking, laughing, watching television, listening to music, or having friends or family over at reasonable times and noise levels

• a neighbor’s smoke alarm going off when cooking dinner

• the landlord regularly calling or knocking on the door to collect past due rent

• routine inspections upon proper notice, as provided in the lease agreement

• reasonable noise levels from community members and guests gathering at a community swimming pool, basketball court, or other activity in the common areas of the leased premises.

In New Hampshire, actual eviction refers to the physical removal or exclusion of a tenant from the premises by the landlord, which can include changing locks or removing personal property, or by legal means such as a court order. Constructive eviction, on the other hand, occurs when a landlord's actions or failures to act make the premises uninhabitable or substantially interfere with the tenant's use and enjoyment of the property, leading the tenant to abandon the premises. This can be due to the landlord's failure to provide basic living conditions or to make necessary repairs, thereby breaching the implied warranty of habitability. Tenants in New Hampshire who believe they have been constructively evicted may seek legal remedies, which can include actual damages, moving expenses, attorney fees, and potentially punitive damages. The implied warranty of habitability in New Hampshire requires landlords to maintain the property in a condition that meets basic living and safety standards. Additionally, tenants have a right to quiet enjoyment, which means the landlord must prevent unreasonable disturbances. If a tenant's right to quiet enjoyment is violated, they may have grounds for legal action against the landlord. It's important for both landlords and tenants to understand their rights and obligations under New Hampshire law to avoid actual or constructive eviction disputes.