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.
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.
First and foremost, the lease can state that no
default on the landlord’s part shall constitute a constructive eviction of the
tenant. While this provision may be difficult to enforce in some jurisdictions
under the common law, it may discourage the tenant from vacating the space and then
claiming a constructive eviction. If the lease provides as an alternative
remedy that the tenant is entitled to an abatement of rent for the period of
time that it is deprived of beneficial enjoyment of the premises, this will
strengthen the landlord’s position. Second,
the lease should require the tenant to provide the landlord with detailed,
written notice of any alleged lease default.
It should also provide the landlord sufficient time to cure the alleged
default. Third, the lease should
narrowly and specifically define the landlord’s responsibilities with respect
to repairs, replacements, utilities, and maintenance of common areas (including
parking lots and building access points).
Heating and air conditioning problems are commonly cited by tenants to
support claims of constructive eviction; accordingly, the lease should clearly
define the landlord’s responsibilities with respect to heating and air
conditioning. The landlord should also carefully document all service and
repairs to the HVAC systems. Finally, to
the extent possible, the landlord should grant itself the right to relocate a
tenant to a different location or premises in the event the leased premises are
rendered untenantable.
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