The concept of a “constructive eviction” exists under the rubric of a breach of the covenant of quiet enjoyment that is implied in every rental agreement. A tenant may assert this ground as an affirmative defense when the landlord’s actions or omissions so interfere with the tenant’s right to “peaceful and beneficial possession” of the rental unit that the unit or a portion of it becomes uninhabitable. Examples include:
- Extreme rain damage to one or more rooms of a unit caused by a leaky roof that the landlord refused to repair;
- Excessively noisy renovations at the premises at unreasonable hours; and
- Persistent harassment of the tenant by the landlord.
[See Stoiber v Honeychuck (1980) 101 CA3d 903, 925–926; Clark v Spiegel (1971) 22 CA3d 74, 79–80.]