Q: I have a tenant who is moving out a month early, citing "constructive eviction" because the tenant in the unit below him snores too loudly. The home is a well-built Tudor duplex. He wants me to keep his security deposit and use it as last month's rent. If I do not agree, he says he will "hold me responsible" for his economic burdens of not sleeping.
I have owned the duplex for 21 years and have rarely received noise complaints. I also lived in the home for 18 years, and can attest that, while it is not soundproof, it is not poorly built, as he is indicating by claiming the house is uninhabitable. Since both units have two bedrooms, isn't it reasonable to assume that a person would move their primary bedroom to the second room that is farther away from the snoring noise?
The tenant also has admitted to pounding on the floor to stop the snoring. My lower tenant, the snorer, is now moving out because of the pounding noise from above, so I now need to find tenants for both apartments. I have listed the apartment for rent, however, if I do not find a suitable tenant, can I keep the security deposit to cover last month's rent?
A: Constructive eviction occurs when a property becomes uninhabitable, such that any reasonable person would move out of the property. Common constructive eviction defects include collapsed roofs, major construction problems and unsafe furnaces. There are also claims for partial constructive eviction, under which the court allows the tenant to pay partial rent until the landlord remedies a defect that reduces the use and enjoyment of the premises significantly. A defect of this kind might include an inoperable stove or a room that is unsafe or cannot be used for one reason or another.
Certainly, tenants have made claims that noise violations constitute a defect rising to the level of constructive eviction. The success of such cases rises and falls upon the actual noise issue raised by the tenant, and whether the court believes that the noise actually makes the premises wholly or partially uninhabitable.
Minnesota law prohibits a tenant from withholding the last month's rent on the grounds that the deposit should serve as rent. If the landlord sends the tenant a written notice outlining the statute, and demands the last month's rent, then the tenant can be liable for a penalty in an amount that the landlord is entitled to withhold for damages, the interest on the deposit and the amount of rent withheld by the tenant.
In order to pursue a constructive eviction, the law requires that a tenant send the landlord written notice of the problem, then give the landlord 14 days to remedy the situation. You do not say whether the tenant has sent a letter or provided any written notice of the problem. If the tenant has failed to do so, you should provide the tenant with a letter indicating that they have provided no written notice of the noise problem, and then include the required language under Minn. Stat. 504B.178, subd. 8. If the tenant has provided you written notice, and you have done nothing, then the tenant may have a claim that you have failed to keep the unit inhabitable. If you have contacted the downstairs tenant, and asked that he keep the noise to a minimum, make sure to document it.
Either way, whether or not the tenant can prevail on a constructive eviction claim is open to question. At this time, the tenant has not gone to court nor done anything to preserve his rights, such as sending you documentation, calling the police to complain about the noise or pursuing a tenant remedies' action. You are well within your rights to simply send a letter, with the required language, demanding the last month's rent. If the tenant does not comply or bring a court action, then you can withhold penalties as outlined in the statute. If the tenant does bring a court action, then you should follow the court's order regarding the deposit. If the tenant pays the last month's rent, then you need to handle the security deposit accordingly.
Kelly Klein is a Minneapolis attorney. Participation in this column does not create an attorney/client relationship with Klein. Do not rely on advice in this column for legal opinions. Consult an attorney regarding your particular issues. E-mail renting questions to firstname.lastname@example.org, or write to Kelly Klein c/o Star Tribune, 425 Portland Av. S., Minneapolis, MN 55488. Information provided by readers is not confidential.