Proving Constructive Eviction After “Mystery” Illness

August 3, 2012
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Q: Shortly after my business moved into a new space several years ago, my employees started experiencing sore throats and other health problems. I didn’t mention these problems to the owner until recently because I was trying to work on the situation myself. Without telling the owner, I hired an environmental assessor to inspect the space. The resulting environmental report didn’t identify any specific problems, but suggested further testing. Soon after receiving these results, I vacated the space, and the owner sued for unpaid rent. What are my rights?

A: You could try to argue that you’ve been constructively evicted—that is, your enjoyment of the space was “so interfered with” that you were justified to abandon it. But your rights will vary depending on your exact situation. Cases like this are very fact-specific. For example, a court might rule that you haven’t been constructively evicted from its space if you can’t adequately prove the cause of your employees’ symptoms or tie those symptoms to the building. And the court could take note that you didn’t perform the additional testing, which could have revealed a condition that could’ve been solved—without leaving the space. Additionally, ask yourself whether the lease makes you solely responsible for repairing and maintaining equipment at the space; the equipment could have been a source of contamination.

Be aware that, in order to prevail on a constructive eviction claim, you’ll have to have evidence proving that the owner caused the interference that prevented you from enjoying your space, or that the conditions at the space were so grave and permanent to justify abandonment.