Constructive Eviction

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"Constructive eviction" is a defense used in court, when:

  • a rental unit becomes unlivable, and
  • the tenants have moved out because of the issues which caused the unit to become unlivable, and
  • the landlord ends up suing the tenants for back-owed rent

Constructive eviction eviction is not: 

  • A defense that can be used if the problem was a result of a tenant’s “actions or inactions” 
  • The same as rent abatement 
  • Something a tenant can claim if they are still living in the unit

What the law says about constructive eviction:

Wis. Stat. 704.07(4): If the premises become untenantable because of damage by fire, water ...or because of any condition hazardous to health, ... the tenant may remove from the premises unless the landlord proceeds promptly to repair or rebuild or eliminate the health hazard ...  or the tenant may remove if the inconvenience to the tenant by reason of the nature and period of repair, rebuilding or elimination would impose undue hardship on the tenant....

If the tenant justifiably moves out under this subsection, the tenant is not liable for rent after the premises become untenantable and the landlord must repay any rent paid in advance apportioned to the period after the premises become untenantable."

In other words, if the rental unit becomes unlivable, and the landlord can't fix the situation right away (or fix it at all), then the tenant can choose to move out.  If the tenant chooses to move out, then the tenant should not be held responsible for rent from the point when the rental unit becomes unlivable, assuming that a judge agrees that the unit was unlivable if the landlord disagrees and sues the tenant for rent. 

For a tenant claiming constructive eviction, the options are:

  1. Communicate with the landlord immediately. Make sure that the landlord knows about the problem and its severity. Tenants also should include a reasonable deadline by which to address it. All of this should be done in writing to make sure the terms are clear, and that there is a timeline and paper trail of documentation.  
  2. Contact third party agencies. These can include (but are not limited to) your city’s building inspection department, the health department, police department, or a private contractor, such as an exterminator for a pest problem or a mold remediation specialist for an ongoing mold issue. Make sure to keep statements from them about the severity of the issue as evidence to support your claims. 
  3. Move out. If the landlord is unable to resolve the problem and make the unit livable again, then the tenant has the option of moving out under the argument of constructive eviction. It is important to note that it can be difficult to make the argument of constructive eviction if tenants stay a long time in an "unlivable" situation. To a judge it often appears that if the tenant actually is able to live there for a long time, that the situation was not actually unlivable. 
  4. Contact the landlord in writing. Tenants can explain that they have moved out because the unit was unlivable, that they gave the landlord time to resolve it, and that the landlord failed to do so. Tenants should also make sure to explain that they don't believe they owe further rent because they constructively evicted due to the unlivable conditions of the unit. It is also important for tenants to ensure that they leave the landlord a forwarding address for any communications moving forward. 
  5. The landlord may end up filing for a money judgment if they feel that they are owed any amount of rent. If you are a tenant you may want to consult TRC’s page of free legal resources and our page on Small Claims Court to get an idea of what to expect. 

Tips for landlords when addressing situations that could result in constructive eviction: 

  • Make repairs as soon as you can after you know about a problem. That way, if something unfixable comes up, tenants will see that the landlord has a history of making a reasonable effort to do right by repairs.
  • If the problem isn't fixable, then negotiate a mutual termination agreement with your tenants if the unit is unlivable. Under Wisconsin law, landlords may not rent units which are uninhabitable.
  • Present the tenant with a plan and timeline which you will follow to address repairs. Some potential solutions include letting them live in another rental unit while the problems get resolved, or helping them find somewhere else to live temporarily while you make the needed improvements. 
  • Lower the rent for the time that the repair problem is present. If you want a guideline, Madison General Ordinances have a chart for rent abatement that you might choose to follow. To find it, go here.

Further reading on constructive eviction:

  • Todd v. APEX PROPERTY MANAGEMENT, INC. (2007)  explains some of the things that a court of appeals would look for in a constructive eviction case. Todd (the tenant) constructively evicted due to a neighbor violating her peaceful enjoyment, and Apex (the property management company) lost in small claims court. This document explains why the court is rejecting Apex's appeal, and contains comments from the court on what the tenant did during the problem period that made her win both the original case and the appeal. 
  • SCHAAF v. NORTRAN 19 Wis.2d 540 (1963) demonstrates the complicated timing issue: "The landlord is entitled to notice . . . and has a reasonable time after notice is given to remedy the defect complained of, and until such time has elapsed the tenant has no right to quit the premises because of the alleged breach."

You should also know: We are not attorneys here at the TRC!  And this isn't legal advice, either.  If what we've written here doesn't sound right to you, talk about it with someone you trust. For help finding an attorney, check out our attorney referral list.