Beware of Constructive Eviction Concerns During COVID

Beware of Constructive Eviction Concerns During COVID

By: Tanner Puryear, Esq. and Keaton Turnipseed, 3L.

July 13, 2021

Spurred by remote work, and with interest rates at a 3.1% national average for a 30-year fixed mortgage, the housing market is booming. Nationally the median home price is $370,528, 22.2% higher than the previous year. At the same time, the number of homes for sale has dropped 48.3% while the number of new listings has gone up 53.3% year over year. California has seen an even more dramatic uptick in the housing market. The average price of a home is up 34.2% to $813,980. The unsold inventory has dropped 52.9%, and the average amount of time a home is on the market is a mere 7 days, cut almost in half from the previous year.

The roaring market and opportunity for significant financial gain has not been lost on those who are currently renting out property. However, given the applicable California law and the added protections afforded to tenants during the Covid period, selling a tenant occupied property has become increasingly difficult.

These tenant protections coupled with growing financial gain have incentivized some landlords to throw caution to the wind and attempt to oust their tenants by means of “constructive eviction,” rather than jumping through an increasing number of legal hoops in order to sell the property. Constructive eviction occurs when a landlord renders a property uninhabitable or unsuitable for the purposes the property was leased for in an attempt to force the tenant to vacate. Constructive eviction is not only prohibited at common law but also under California Civil Code sections 1941 and 1942 which allows a tenant to vacate premises and imposes serious consequences on landlord who constructively evict tenants.

A classic example of constructive eviction is a landlord who refuses to fix a leaking roof or supply running water, making the property untenantable. A more modern trend is for landlords to inform or threaten to inform relevant authorities of their tenant’s immigration status as a way to get them out of the property.

Any action to constructively evict a tenant can have serious repercussions for the landlord. Landlords have a duty to maintain the property for human habitation and tenants are forbidden from waiving this right by contract on public policy grounds. If the landlord does not address repairs in a reasonable time tenants are allowed to fix the problem and then deduct the money spent on the repair from the rent so long as the repair costs are not more than a month’s rent. The tenant may also raise a violation of the landlord’s duty to maintain the property as a defense to an unlawful detainer action for failure to pay rent. Landlords are also prohibited from using extortion or threat to force a tenant out of a property. If a tenant were to win a suit for violation under this section, the tenant would be entitled to up to two thousand dollars per violation.

If the landlord attempts to use immigration statutes as leverage to oust the tenant, the penalties could be even more serious. If the court finds the landlord violated this section, the landlord will be forced to pay statutory damages between six and twelve times the rent due on the dwelling for each person whose status was so disclosed. The court will also inform the local District Attorney of a potential violation of section 519 that prohibits use of fear for extortion. Compounding the potential losses for the landlord the court is obligated to award attorney fees to the winning party. Furthermore, with the passage of SB 91 the legislature has imposed additional fines on landlords who try to constructively evict tenants during the Covid period. A landlord can be fined anywhere between $1,000 and $2,500.

Constructive eviction may at first blush appear to be the easiest way for a landlord to remove a tenant and make a quick buck in the booming housing market. However, the reality is that this route will expose the landlord to liability that will easily outweigh any profits made on the sale of the property. Following the legal steps in selling a property may take more time, however, it is the only way to avoid potentially devastating legal exposure.

The information presented in this article is not to be taken as legal advice. Every situation is different. If you are facing a legal issue of any kind, get competent legal advice in your state immediately so that you can determine your best options.

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