Landlord-Tenant Law: What Is "Constructive Eviction?"


Tenants have a right to peaceably and quietly enjoy rented property without the unwelcomed interference or intrusion of their landlords. As such, any act by a landlord made with the express or implied intent of essentially interfering with a tenant’s use and enjoyment of the premises, even if it does not amount to an actual eviction of a tenant, is prohibited under Florida law. This is known as a “constructive eviction.”

For example, say John, a small retail business owner, were to rent a suite in a building, with the remainder of the property being leased to a gym. Unfortunately, the noise pollution from the gym’s loud sound system interferes with John’s business and deters customers from entering. Although John informs the landlord of the issue, the landlord fails to take action and continues to allow the gym to play music at a high volume.

If John can prove that the gym’s sound system materially interfered with the use of the property such that the premises was unsuitable for occupancy, resulting in damages to his business, the landlord can then be held liable for constructive eviction and financially responsible for any damages since the beginning of the constructive eviction. Likewise, John may seek an abatement of any rent paid since the beginning of the constructive eviction.

Can Constructively Evicted Tenants Simply Stop Paying Rent?

No. If an alleged constructively convicted tenant fails to pay their owed rent, the landlord may commence an action or counterclaim to evict the tenant for nonpayment. On the other hand, if a tenant continues to pay the rent as due and prevails in a constructive eviction claim against their landlord, they would then have to file a separate claim to recover the rental payments. This is where court deposits come into play.

In the recent appellate opinion of Tixe Designs, Inc. v. Green Ice, Inc. -- So.3d ---- , 2016 WL 6992296 (Fla. 3d DCA 2016), it was found that constructively evicted tenants may voluntarily pay rent money into the court registry by order of the court Under Fla.R.Civ.P. 1.600 rather than paying the landlord themselves to avoid default for nonpayment yet still retain the right to recover the rent if successful in their constructive eviction claim. In other words, for any action in which part of the relief sought is a judgment for a sum of money, parties may deposit all or part of such a sum with the court upon notice to every other party and by leave of court.

When Can a Landlord Evict a Tenant Using a Self-Help Clause?

Many landlords include “self-help” clauses within their lease agreements which are intended to give them the right to terminate a lease and reclaim a property in the event that the tenant should default on payments. In the decision of Palm Beach Fla. Hotel & Office vs Nantucket Enterprises, Inc. , -- So.3d ---- , 2016 WL 7118850 (Fla. 4th DCA 2016), it was found that self-help clauses may not be used by landlords to reclaim property in the event that a tenant should default as a result of constructive eviction. Florida Statutes Section 83.05(2) provides that a non-residential landlord may recover possession of rented premises only:

  1. By court order granting a landlord possession;
  2. When the tenant has surrendered possession of the rented premises to the landlord; or
  3. When the tenant has abandoned the rented premises.

Involved in a Landlord-Tenant Dispute? Call (561) 953-6662

Without capable and experienced legal counsel, the laws regarding the landlord and tenant relationship can be difficult to understand. If you should find yourself involved on either side of a landlord-tenant issue such as a lease dispute or lease enforcement matter, contact Gregg H. Glicsktein P.A. today. Having been providing cost-effective and powerful legal advocacy for clients throughout Boca Raton for more than 35 years, my firm has what it takes to guard your best interests and maximize your chances of achieving a favorable result for your case.

To discuss your legal options with a Boca Raton landlord-tenant law attorney in detail, schedule your confidential case review today.

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