Quiet enjoyment and constructive eviction
Remember the old George Carlin routine comparing baseball to the game of football? Baseball, he said, is pastoral. Football is a twentieth-century technological struggle. The objectives of the two games is different, Carlin observed. In football, the object is to score. In baseball, we come home. And are safe. We are safe at home.And that’s why the legal concept of quiet enjoyment, the vestige of a calmer, less technological time, is more like baseball. It’s pastoral. It bears upon the thrum and canter of calm and tranquil evenings before the family hearth. And it pertains to the home or other places that we occupy. It is a concept that guarantees us peace and quiet “enjoyment”, even! in the places where we reside. Where we can be assured that we will not be molested by either friend or foe, by hostile acts or actions — or even landlords — where we can be free from interference from the outside world.A “covenant” of quiet enjoyment, then (yes, a “covenant” as in “…and God made a covenant with Moses and the people of Israel…” or some such other matter of equal biblical solemnity) is a promise to be free from interference.Let’s take a short side track here. At law, a “covenant” is an agreement, convention or promise of two or more parties, in writing, by which either or the parties pledges him or herself to the other that something is either done, shall be done or shall not be done. The term is usually employed in respect to matters bearing upon real estate but, in its broadest sense, may mean the particular term of any contract. A covenant of quiet enjoyment, then, is a written promise, usually inserted in leases and conveyances (that is a writing transferring an interest in, or ownership of, real property) whereby the grantor promises the tenant or grantee that he or she shall enjoy the possession of the premises in peace and without disturbance.In the circumstance of the transfer of an interest in real property, it is an assurance against the consequences of a defective title and any disturbances thereupon. In the case of the rental of real property, it is a promise or assurance that the tenant (or grantee) shall enjoy possession of the premises in peace and without disturbance by hostile claimants. Okay, now hold on here; covenants may also be implied. An “implied” covenant is one which may reasonably be inferred from the whole agreement and circumstances attending its execution (execution, in this sense meaning that is has been adopted and signed by the parties as their voluntary act and will). An implied covenant is one which is inferred by the law from certain words which imply (although they do not express) them. In the absence of agreement to the contrary, there is an implied covenant of quiet enjoyment in every leased premises and the tenant is entitled to possession of the premises to the exclusion of the landlord. Any disturbance by the landlord or any adjoining tenant with the acquiescence of the landlord which renders the premises unfit for occupancy for the purposes for which they were leased, or which deprives the tenant of the beneficial enjoyment of the premises, causing him or her to abandon them, amounts to a “constructive eviction.”Hold on a sec and let’s gather up some terms here. First, “constructive” means that which is established by the mind of the law in an act of construing facts, conduct, circumstances or instruments. It is that which does not have the character assigned to it in its own essential nature, but which acquires such character in consequence of the way in which it is regarded by a rule or policy of law. It is a thing, in other words, which is construed to be by application of law.”Enjoyment”, despite the high falutin’, foot-loose and fancy free sound of it, at law means simply to have, possess and use with satisfaction. It is the ungilded rose of contented possession or occupation. It is having the benefit of something regardless of your state of delight, grumpiness or indifference.”Eviction” means raining on this happy parade. It is dispossession by process of law, the act of depriving a person of the possession (or enjoyment) of land or rental property which he or she has held or leased.Lastly, then “constructive eviction” arises when a landlord, while not actually depriving a tenant of possession, has done or suffered some act by which the premises are rendered untenantable. It consists of any disturbance of the tenant’s possession by the landlord whereby the premises are rendered unfit or unsuitable for occupancy, in whole or in substantial part, for the purpose for which they were leased. Needless to say, an act of constructive eviction disturbs the tenants quiet enjoyment of the premises and, as such, amounts to a breach of the covenant (whether express or implied) of quiet enjoyment. Understandably, a breach of the covenant of quiet enjoyment and its attendant constructive eviction, means the landlord has breached the rental contract with the tenant and is therefore liable for damages.Quiet enjoyment is like baseball. Constructive eviction is like football. It has hitting, clipping, spearing, piling on, personal fouls, late hitting and unnecessary roughness. And in this way, a single elegant concept of law, the two great national pastimes are inseparably and inexorably united.Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. Mr. Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. He may be heard on Wednesday nights at 7:00 p.m. on KZYR radio (97.7 FM) as host of “Community Focus”. Mr. Robbins may be reached at 970/926.4461 or at his e-mail address: firstname.lastname@example.orgVail, Colorado
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