Daily Development for Thursday, January 25, 2007
by: Patrick A. Randolph, Jr.
Elmer F. = Pierson Professor of Law
UMKC School = of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

LANDLORD/TENANT; CONSTRUCTIVE EVICTION; LANDLORD HARASSMENT:  New Jersey common law does not recognize a claim for constructive eviction based on a landlords malicious of an eviction suit, but even if it did, it is likely that there must be sSubstantial and repeated acts of bad faith and malice by the landlord in order for a tenant to prevail. 

J.S. Properties, L.L.C. v.  Brown and Filson, Inc., 2006 WL 3780560 (N.J. Super. App. Div. 2006); December 27, 2006.

Tenant complained that the roof over its premises leaked repeatedly.  It and its landlord entered into a settlement agreement whereby Tenant was permitted to deduct, from the rent owed, the cost of its repairs and lost merchandise due to the leaks.  When the lease expired, the parties entered into a new lease that incorporated the terms of the prior settlement with respect to roof leaks.  After the roof continued to leak, the landlord replaced the roof and sued Tenant for unpaid rent.  The amount of unpaid rent represented the amount of Tenant=s deductions for leak-related damages.  The matter was removed from landlord-tenant court to the Law Division on Tenants motion, and Tenant filed an answer and counterclaim. 

Six months later, Tenant vacated the premises, returned the keys, and amended its counterclaim to add a claim that the landlord deprived it of its right of quiet enjoyment and that the premises unsuitability for the purposes for which it was leased constituted Tenants construction eviction from the premises.  The lower court dismissed Tenants constructive eviction claim, noting  that the roof repairs had been completed more than a year before Tenant vacated the premises, and that Tenants decision to vacate after the roof was replaced, and not during the many times the roof leaked prior to its replacement, was unreasonable.  The lower court did not address Tenants claim that it was constructively evicted based on the landlords filing of the eviction suit. 

On appeal, the Appellate Division agreed that Tenant=s decision to vacate more than one year after the roof was replaced was unreasonable, but the Court did not decide whether a tenant can claim constructive eviction based on the landlords filing of an eviction suit.  The Court noted that in jurisdictions that recognize such a claim, it is generally understood that the mere filing of the eviction suit is not sufficient, and that there must be substantial and repeated acts of bad faith and malice by the landlord in order for a tenant to prevail. 

The Court found that even if New Jersey common law should recognize a claim for constructive eviction based on a landlord=s malicious filing of = an eviction suit, such a claim would not succeed in this case based on the tenant=s actions.  It noted that the tenant did not leave when the suit was filed, but rather fought the eviction for more than six months before leaving.  To the Court, that delay was unreasonable.  It held that even if the tenant could file a claim for constructive eviction, its case failed due to the tenant=s unreasonable occupation of the premises for more than six months after the eviction suit was filed.

Comment 1: What would have happened if the landlord had wrongfully demanded that the tenant leave the premises for nonpayment of rent, and the tenant did leave, but then thought better of its decision and claimed that the landlord had no right to demand possession?  Here, very likely, wed have an actual eviction.  Dont need to call it =E2=80=9Cconstructive,=E2=80=9D and presumably the tenant would have damages?  Or would it be denied damages on the grounds that it should have resisted the landlords demands in the first instance?  Hmmmmm. 

Comment 2: There have been a few cases in which a tenant has been able to raise a commercial retaliatory eviction claim based upon the tenant=s public objection to aspects of the landlords conduct pertaining to the lease.   See, e.g.  Port of Longview v. International Raw Materials, Ltd., 979 P.2d 917 (Wash. App. 1999) (DIRT DD for1/ 26/00) (Tenant of government-operated port facility can raise, as an affirmative defense to eviction, argument that port authority was evicting it in retaliation for exercise of right to free speech.) Also see Windward Partners v. Santos, 577 P.2d 326 (Haw. 1978) (retaliation for participating in a zoning hearing contrary to landlords interest).   The doctrine is discussed generally in the Randolph Edition of Friedman on Leases at Section 14.7.1.   In 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 847 A.2d 9 (App. Div. 2004) (the DIRT DD for 9/28/04), a New Jersey court found that the concept was not quite ready for prime tim

e in New Jersey.  It held that the claim is not available where the landlord allegedly retaliated against a tenant who filed a personal injury action against the landlord.

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