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Does a tenant have to move out, (constructive eviction) to prove in court that the landlord has breached the quiet enjoyment?

Brea, CA |

Does a tenant have to move out, (constructive eviction) to prove in small claims court that the landlord has breached the implied covenant and the lease agreement by failing to control the noise at 6am from the landscapers, which the landlord contracts with? And that the landlord's act or omission substantially interfered with a tenant's right to use and enjoy the premises for the purposes contemplated by the tenancy.

I don't want to move and I don't want to withhold rent and deal with the eviction process. I am trying to do this the right way. The management refused to speak with me so I am suing the landlord for the reduced value of leased space from the time I moved in until they finally made the appropriate changes.

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Attorney answers 3

Best Answer

It appears that you may remain and sue the landlord for damages. Here is some case law for your consideration: "Upon a lessor's breach of lease, the tenant has a choice of remedies. If the broken covenant is a condition precedent in the contract sense, he may elect to move out, cease payment of rent and under some circumstances seek damages. (3 Witkin, Summary of Cal. Law, Real Property, §§ 505, 506.) He also has the alternative of continuing under the lease and suing for breach-of-contract damages." Guntert v. City of Stockton, 55 Cal. App. 3d 131, 139 (Cal. App. 3d Dist. 1976).

Did you every complaint about the noise? If so, did you do so in writing? How do you intend to prove your case? Your case is difficult to quantify in dollar amount without many more facts. Good luck.



I have complained in writing, emails and in person. I have kept a paper trail documenting my complaints. After calling the city regarding noise disturbances that have continued, management stated in a letter to me that, "they have instructed personnel to stop communicating with me and if I disturb office personnel again, they will call the police and have me removed from the property." After that my key fob stoped working which denied access to the gym, pool, and all entry points around perimeter of building. I have informed management that my key fob doesn't work. Then on November 20th I received a 30 notice to terminate tenancy. I believe this is all in retaliation for calling city code enforcement.


A lawsuit for constructive eviction does not require the surrender of the tenancy.

A proper response would require a thorough investigation into the history and background of this relationship. The information provided above is just that, information, to be used as you see fit.


You do not have to move to establish constructive eviction.