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Constructive Eviction Is An Uphill Battle In Georgia

by on May 9, 2011

If a landlord isn’t making reasonable repairs, is a tenant entitled to terminate the lease and vacate the premises before the lease expires and without penalty?  From a tenant’s standpoint, this is known as a constructive eviction.  It is used frequently by tenants, especially commercial tenants, in an attempt to escape liability in default situations.  As illustrated below, constructive eviction is narrowly construed by the courts and only applied in limited circumstances.

There are two essential elements required in order to show constructive eviction.

First, the tenant must prove that the landlord’s failure to keep the rented premises in repair allowed the premises to deteriorate to such an extent as to make the rented premises unfit for the tenant to carry on business in a commercial lease or uninhabitable in a residential lease.  See, Hightower v. Daniel, 143 Ga. App. 217, 237, 237 S.E.2d 688 (1977).

Second, the tenant must prove that the rented premises couldn’t be restored to a fit condition by ordinary repairs that could be made without unreasonable interruption of the tenant’s business in a commercial lease or the tenant’s habitation in a residential lease.  Id.

In addition to these two elements, the tenant must show “some grave act of a permanent character done by the landlord with the intention of depriving the tenant of the enjoyment of the demised premises before a constructive eviction will result.”  Alston v. Ga. Credit Counsel, 140 Ga. App. 784, 785, 232 S.E.2d 134 (1976).

These principles were put to the test in Delta Cleaner Supply Company v. Mendel Drive Associates, 286 Ga. App. 227, 648 S.E.2d 651 (2007).  In that case, a landlord accused the tenant of breaching the lease by not paying water bills and the tenant accused the landlord of breaching the lease by not providing adequate security.  The tenant moved out and was sued by the landlord.  As one of its defenses, the tenant claimed constructive eviction.

The trial court awarded the landlord summary judgment on the issue of constructive eviction.  Citing the above law, the Georgia Court of Appeals agreed with the trial court and ruled that, as a matter of law, the facts did not show a constructive eviction.

Specifically, the Court found that all of the security measures and water issues could have been resolved without unreasonable interruption of the tenant’s business.  Moreover, none of the conditions complained of by the tenant were permanent.

Because the tenant could not prove that the premises could not be used as a result the landlord’s inaction, that the premises could not be restored without unreasonable interruption to the tenant, and that deteriorated condition of the premises was permanent and done intentionally by the landlord, the evidence was insufficient to show a constructive eviction.

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