Quiet Enjoyment: Using Your Property in Peace |Law Offices of Peter J. Lamont, Esq.
Signing a new lease gives you a valuable set of covenants to help you better enjoy your new apartment. Knowing what these covenants are will ensure you understand your rights, along with knowing how to better protect yourself should you run into issues.
What is the Covenant of Quiet Enjoyment?
Every lease of property contains certain promises. These promises are known as Covenants. One of these is the Covenant of Quiet Enjoyment. In essence, it states that if your Landlord acts, or fails to act, in a way that renders your living space “substantially unsuitable” for living in, it will be a breach of the covenant and will also be considered an act of constructive eviction.
To say that in plain English, your Landlord cannot disturb you in such a way that living in your apartment becomes difficult or uncomfortable.
“Quiet”? Is that sound only?
Despite its name, the Covenant of Quiet Enjoyment covers a wide variety of issues. Practically anything you think would bother you can be considered covered by this Covenant. Loud noises, bad smells, wet surfaces, difficulty entering and leaving the apartment, broken appliances, and even more can fall under this Covenant. The key to this Covenant is that the disturbance has to be “substantial” in nature.
How Big is “Substantial”?
Of course, not everything can be considered a “substantial” issue. If that were the case, any little issue could be used to claim the Covenant was breached. Instead, we must look at a two-pronged test: severity, and consistency.
First, severity is straightforward. If a major disturbance occurs such as an entire wall being demolished by accident, that alone would be enough to claim a “substantial” issue has occurred.
Second, consistency plays a role when the severity of an issue is not as dramatic. For example, imagine that every Friday night, you smell a horrible odor coming from your bathroom. It always happens every Friday night, to the point that you can predict when it is going to happen. While a bad odor is not nearly as terrible as a missing wall, and you could always close the bathroom door or use deodorant, the fact that it is consistent and disturbs your use of the apartment may amount to a “substantial” violation of the Covenant.
What Do I Do Now That There is a “Substantial” Breach?
Once a substantial violation occurs, you have been constructively evicted. This means that you need to take a few steps to ensure you can bring a lawsuit.
First, hire an attorney! Having a lawyer will allow you have the proper guidance to ensure you are following the law exactly to the letter, along with assisting you in drafting any letters or documents necessary for the process. In the case of a constrictive eviction matter, failing to follow the law will mean you forfeit your ability to sue under the Covenant itself. This can severely complicate the process of seeking remedy for an issue with your apartment’s living conditions.
Second, tell your landlord in writing. Let them know exactly what is wrong, when it happens, and your best guess as to why it happens. Your landlord needs to be put on notice that the issue exists, along with giving them a reasonable amount of time to remedy the issue. Some issues may take longer to solve, such as replacing an entire wall versus patching a leak in the ceiling.
Third, if your landlord has still done nothing and has not confirmed they will fix the issue after a reasonable amount of time, you must move out. This step is absolutely critical, as failing to follow it will prevent you from using this Covenant as a basis to sue. The name “constructive eviction” means that the conditions of your living space are so unbearable that it is the same as your landlord kicking you out. If you do not leave, you are admitting the conditions of the apartment are not *that* bad.
You have certain rights upon signing a lease. One of those rights is that you will be able to live peacefully without disturbance. If something is so severe or consistent that you can no longer comfortably live in your apartment, you should hire an attorney and begin preparing to move out. This will ensure you comply with the law and ensure you can bring your lawsuit.
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As with any legal issue, it is important that you obtain competent legal counsel before making any decisions about how to respond to a subpoena or whether to challenge one - even if you believe that compliance is not required. Because each situation is different, it may be impossible for this article to address all issues raised by every situation encountered in responding to a subpoena. The information below can give you guidance regarding some common issues related to subpoenas, but you should consult with an attorney before taking any actions (or refraining from acts) based on these suggestions. Separately, this post will focus on New Jersey law. If you receive a subpoena in a state other than New Jersey you should immediately seek the advice of an attorney in your state as certain rules differ in other states.