Constructive Eviction

One of my more memorable encounters with an individual client occurred when I first started working at the Tenant Resource Center.  It takes a while for counselors to get their sea legs, and I was no different.  The client had a big impact on me.

The client was a tenant, a mother with a husband and young children in the household, with health problems due to the mold in her rental housing. She was ill - her hair had fallen off in chunks and her skin was discolored. Her children were sick - asthma and pnuemonia. The building inspector who came to inspect the unit felt it wasn't safe enough to go into.  

Sometimes the lack of options for a client can be breathtaking.  Sometimes, the options just take chutzpah. Constructive eviction is a little bit of both.

In a situation where there is a clear need for repairs, and the landlord hasn't been able to take care of those repairs, and the tenant wants to move out, then constructive eviction may be the (last resort) solution, like it was for this client.

But constructive eviction isn't just for repairs - it can be used in extreme situations that cause a rental unit to become unlivable. The reasons listed in the law are fire and flood, but it also applies to safety issues (neighbors are violent), or peaceful enjoyment, and, as above, mold and other repair issues that are "hazardous to health." 

Here's how it works: "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 is suing those tenants for rent once the tenants have left.

If a tenant goes to that court hearing and makes the judge believe that they moved out because the rental unit was unlivable (that they "constructively evicted"), then that's the best case scenario for constructive eviction.

The Law: Wis. Stat. 704.07(4) says, "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."

A translation of that law might be: if the rental unit becomes unlivable, and the landlord can't fix the situation right away (sometimes the situation is not fixable at all), then the tenant can choose to move out.  If the tenant chooses to move out, then the tenant can't be held responsible for rent from the point when the rental unit became unlivable, assuming that a judge agrees that the unit is unlivable. 

Constructive eviction is really a last resort kind of solution.  A law can't actively keep a tenant safe ("I'll keep this fire at bay," says the law in Opposite Land), and so if a tenant feels unsafe, they should deal with that as they see fit.  In order to deal with the money side of things, though, a tenant will be most successful claiming constructive eviction in court if they have also

  • Written letters asking the landlord to make repairs 
  • Asked for help from a local building inspector or health department to document the situation. There are some building inspector phone numbers listed at the bottom of our repairs page (or you can contact us if yours isn't listed), and local health department phone numbers can be accessed here. If it's a small enough place where there isn't a building inspector or health department that can come out, it might not be a bad idea just to have some professional contractor come out to see what's wrong and what it would take to fix. Make sure to keep records of all those visits.
  • Tried to negotiate.  For tenants, they should think about what they want (the lease ended by mutual agreement?) and do their best to try and work it out. Also a good idea to write a follow up letter, no matter what the result was.
  • Given the landlord ample notice to fix the problem before the tenant moves out. 

For a tenant claiming constructive eviction, the steps are:

  1. Tell the Landlord about the Big Problem: make sure that the landlord knows about the problem, the severity/extent of the problem, a reasonable deadline by which to deal with the problem (there's no legal guidance on this, so you have to make something up that seems reasonable), and what you are concerned will happen if the problem isn't resolved. (Do all of this in writing). 
  2. Ask for help in resolving the problem: from a Building Inspector/Health Department/Police Department/Private Professional Contractor, as appropriate to the situation. Make sure to keep statements from them about the severity of the issue.
  3. Move out: If the landlord is unable to resolve the problem and make the unit livable again, then the tenant can move out. It's important to note that the courts seem to need the tenant to give the landlord time to resolve the problem, but the courts aren't pleased if the tenants stay a long time in an "unlivable" situation, because they assume if the tenant can live there for a long time, that the situation isn't actually unlivable. 
  4. Write a letter: to the landlord explaining that you've moved out because the unit was unlivable, that you gave them time to resolve it, and that they failed to do so. Make sure to explain that you don't believe you owe further rent because you constructively evicted, and give the landlord has your forwarding address (small claims suits where you don't know about them and don't show up are the worst).
  5. Either wait for the landlord to sue you (the tenant) for unpaid rent, or the tenant can sue the landlord for rent that was paid after the problem began.  Either way, if the case is for an amount less than $10,000, it will end up in Small Claims Court.  See our Small Claims Court Tips here.

You should know: for a Big Problem to be eligible for constructive eviction, then it can't be caused by the tenant.

Sometimes it's simply not possible for landlords to do all the necessary repairs.  Sometimes those repairs are expensive, or weather doesn't allow repairs to be done.  Here are some ways that landlords can avoid dealing with constructive eviction:

  • Make repairs as soon as you can after you know about a problem - it means that when the unfixable ones come 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 let tenants out of lease if the place is unlivable (rental housing in Wisconsin has an "implied warranty of habitability," which means that it's really not legal to be receiving rent on a home that isn't livable).
  • Work out an agreement with the tenant about how to resolve the repairs.  Maybe it means hiring the tenant to do some of the work? (It's easiest for all if it's a separate contract)  Maybe it means letting them live in another rental unit while the problems get resolved?  Maybe it means helping them find a place to live in for a couple months while you're fixing the problem?  There are lots of creative solutions possible here.
  • 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.

More information can be found:

  • Todd v. APEX PROPERTY MANAGEMENT, INC. (2007) is an easy-ish read, and 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. An excerpt that from that case: "Apex next argues that Todd failed to give Apex sufficient notice of the problems she was having with her neighbors or to give Apex a reasonable period of time to remedy the problems. But Todd's trial testimony, her log, and her letters to Apex, which we have described above, amply demonstrate otherwise. Todd provided very clear notice of the problems she was encountering and her expectation that Apex would remedy the situation. Apex had ample time to respond before Todd vacated."
  • 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.