Constructive Eviction in Virginia
The Basics of Constructive Eviction in Virginia
What is it?A "constructive eviction" is an extreme remedy asserted by a tenant to terminate a lease before its expiration date. This remedy is often asserted by tenants seeking to break unfavorable or undesirable leases. It can also be asserted as a defense to a landlord's claim for unpaid rent following the tenant's early departure from the premises.
What are the elements?In Virginia, the burden of proving a constructive eviction rests with the tenant. The tenant must prove that: (1) a defective condition existed on the premises which deprived the tenant of beneficial enjoyment of the premises; (2) the defective condition was the responsibility of the landlord to repair; (3) the landlord breached the lease by failing to repair the defective condition; (4) the tenant gave notice to the landlord that it was in breach of the lease for failing to repair the defective condition; and (5) the tenant vacated the premises within a reasonable time after the defective condition deprived the tenant of beneficial enjoyment of the premises.
How can a landlord protect itself?By including provisions in the lease that limit the tenant's rights upon an alleged loss of beneficial enjoyment of the premises, a commercial landlord can protect itself from an assertion of a constructive eviction.