<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Haley3:
I live in the state of Florida. I rent an apartment with my boyfriend in an apartment complex thats just over a year old.
Here are my problems:
1) The walls are paper-thin, so thin, in fact that we can hear the toilet flush in the apt above ours.
a) we can also hear every single cycle from the washing machine in the apt above ours
2) The same construction company that built the apartment complex is now building a school right next door - they start work at dawn and work until the sun goes down - they also work weekends.
a) the work is extremely loud and they will not be finished until August
b) we were not told that construction was going to be taking place next door, when we signed our lease
As far as the 1st problem goes we have tried to get the landlord to fix/stabilize/muffle the washer above us - but they cant seem to do anything about it (which I find hard to believe)
As far as the 2nd problem goes we have asked the landlords if they intend to give residents a "construction discount" due to the constant noise next door - but they have said no.
I know that we should simply move out - but we are stuck in our lease until August.
Should we get a lawyer to address these problems? We simply pay way too much to listen to flushing toilets and dumptrucks almost 24 hours a day!
I guess I want to know if a lwayer could help negotiate a lower rent for us due to all of these problems we are having... <HR></BLOCKQUOTE>
My response:
Hello Haley:
What you are talking about is "constructive eviction." That is, despite the promises, the noise levels and their frequency, are driving you out of your Apt., making the same unenjoyable, and untenable. Implied in every rental agreement, both residential and commercial, is a covenant of "quiet enjoyment": The landlord impliedly promises to allow the tenant possession and "quiet enjoyment" of the premises during the contract term and not to, through act or omission, disturb the tenant's possession and beneficial enjoyment of the premises for the purposes contemplated by the rental agreement.
"Constructive eviction" is a nonstatutory (common law) basis for terminating a tenancy, operating in favor of tenants. When certain adverse conduct by a landlord amounts to a "constructive eviction," the aggrieved tenants are entitled to immediately terminate their tenancies; and the tenants' obligations under the rental agreement are thereby extinguished, without giving the landlord prior notice or opportunity to "cure." There is no clear consensus on whether the implied covenant of quiet enjoyment is "independent" or "dependent"--i.e., whether the duty to pay rent is "dependent" upon landlords fulfilling their obligation to protect the tenant's right to "quiet enjoyment"; or, vice-versa, whether a landlord's duty to protect a tenant's "quiet enjoyment" is "dependent" upon the tenant's timely payment of rent (and adherence to other covenants in the rental agreement).
In any event, however, the ambiguity is actually only a problem of semantics. For all practical purposes, the implied covenant is a hybrid. Under the weight of authority, unless the breach amounts to an actual or constructive eviction, and the tenant vacates the unit, the duty to pay rent continues . . . notwithstanding the landlord's substantial interference with the tenant's use and possession.
Traditionally at least, there could be no actionable breach of the covenant (either through an affirmative damages action or as a defense or offset to an unlawful detainer for nonpayment of rent) unless the tenant vacated the unit: i.e., there either had to be an actual eviction, or conduct so serious on the part of the landlord as to cause the tenant to vacate (a "constructive eviction"). Of course, although the breach of covenant may be actionable, it will not relieve the tenant of the obligation to pay rent so long as he or she continues in possession. Under the liberal rule that the aggrieved tenant has the right to "stand upon the lease" despite a breach of the covenant, the tenant may remain in possession and bring an affirmative damages action against the landlord.
Courts following the more restrictive view deny the damages cause of action unless the tenant first vacates the unit. Having vacated within a reasonable time, the tenant may then sue for damages for breach of contract and "constructive eviction." At least under the view that the tenant need not first vacate the premises, breach of the covenant should be a defense to the landlord's unlawful detainer for nonpayment of rent (assuming, of course, that withheld rent does not exceed damages suffered by the interference with the tenant's quiet enjoyment). A tenant who vacates after the breach and is then sued by the landlord for unpaid rent accruing before the "constructive eviction," may claim as an offset any damages arising from the interference with his or her quiet enjoyment.
IAAL
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