Constructive Eviction
Eviction by conduct rather than by lawsuit: a landlord's act interferes so seriously with the leased use that the tenant leaves. Texas courts of appeals require landlord intent, a material interference, permanent deprivation and departure within a reasonable time. For residential repair disputes, the Property Code's remedies largely displace the common law.
Constructive eviction occurs when a landlord, intending that the tenant no longer enjoy the premises, commits a material act that substantially and permanently interferes with the leased use, and the tenant leaves within a reasonable time (Quitta v. Fossati, 808 S.W.2d 636, 643 (Tex. App.-Corpus Christi-Edinburg 1991, writ denied)). The Supreme Court of Texas has not expressly recognized it.
In an actual eviction the landlord sues in justice court, wins a judgment and has an officer deliver possession. In a constructive eviction nothing of the kind happens. The landlord does something, or has others do it, that makes the premises unusable for the purpose they were leased for, and the tenant leaves. The tenant then treats the departure as an eviction the landlord caused.
The doctrine is a creation of Texas courts of appeals. When a jury awarded a commercial tenant damages on the theory, the Supreme Court of Texas reversed the court of appeals' take-nothing judgment on a preclusion question and noted that it has not expressly recognized constructive eviction as an affirmative claim, or said how the claim relates to wrongful eviction or breach of the covenant of quiet enjoyment (Westwood Motorcars, LLC v. Virtuolotry, LLC, No. 22-0846 (Tex. May 17, 2024), n.1).
- Source of law
- Common law, from court of appeals decisions (Quitta, 808 S.W.2d at 643)
- Timing
- Tenant must leave within a reasonable time after the landlord's act (Quitta, 808 S.W.2d at 643)
- Residential repairs
- Subchapter B remedies replace common-law habitability remedies (Tex. Prop. Code § 92.061)
- Commercial lockouts
- Statutory remedies apply unless the lease conflicts (§ 93.002(g)-(h))
- Supreme Court
- Not expressly recognized as an affirmative claim (2024) (Westwood Motorcars, n.1)
What counts as a material interference
The act has to defeat the purpose of the lease, and it has to come from the landlord or from someone acting for the landlord or with its permission. In Westwood Motorcars the tenant ran a car dealership. The jury heard that vendors constantly obstructed its doors, blocking test drives, and that the landlord's manager later locked the tenant out without notice and destroyed its security system. The Supreme Court held that this evidence was legally sufficient for the jury to find the tenant's departure was not voluntary.
Words alone are not enough. Courts of appeals hold that a mere notice to quit, followed by the tenant moving out, is not a constructive eviction. Additional conduct, such as harassment disturbing the tenant's possession, can take a case outside that rule (Quitta, 808 S.W.2d at 643; Westwood Motorcars).
Residential leases: the Property Code covers most of the ground
For residential tenancies, section 92.061 makes the Subchapter B duties and remedies a substitute for common-law warranties and duties of maintenance, repair, security, habitability and nonretaliation. A tenant facing a condition that materially affects the physical health or safety of an ordinary tenant follows the section 92.056 path: notice to the landlord (followed by a second written notice unless the first went by certified, registered or tracked mail), a reasonable time to repair (presumed to be seven days), no diligent effort by the landlord, and rent current when the notices were given, and then the right to terminate the lease, repair and deduct, or sue. A tenant who terminates gets a pro rata refund of rent and the security deposit back or applied to rent.
Other conduct carries its own statutory remedy. A landlord who cuts off utilities without a bona fide repair, construction or emergency reason exposes itself to the tenant's choice of recovering possession or ending the lease, plus actual damages, one month's rent plus $1,000, and fees (Tex. Prop. Code § 92.008(f)). Lockouts and removal of doors, locks or appliances are governed by section 92.0081. How much room is left for a common-law constructive eviction claim in a residential case, given section 92.061, is not settled.
Commercial leases
For commercial premises, section 93.002 bars utility interruptions for service the tenant pays directly, removal of doors, locks and landlord-furnished fixtures, and exclusion of the tenant except by judicial process or in listed situations, including a lock change for unpaid rent. A tenant whose landlord violates it may recover possession or terminate the lease and recover actual damages, one month's rent or $500 (whichever is greater), fees and costs. The lease controls to the extent it conflicts with the section (§ 93.002(h)).
Constructive eviction and the eviction suit
A landlord's eviction suit in justice court decides only the right to actual possession. Counterclaims are not allowed there, and a tenant's constructive eviction claim has to be brought in a separate suit in a court with jurisdiction (Tex. R. Civ. P. 510.6(f)). The eviction judgment does not bar that suit (§ 24.008). In Westwood Motorcars the tenant withdrew its county court appeal and agreed to a writ of possession before trying its district court claims, and the Supreme Court held that the possession judgment had no preclusive effect on its damages claims, remanding the case to the court of appeals.
Elements Texas courts apply
The courts of appeals state four elements (Quitta, 808 S.W.2d at 643):
- An intention by the landlord that the tenant no longer enjoy the premises.
- A material act by the landlord, or by those acting for the landlord or with its permission, that substantially interferes with the use and enjoyment of the premises for the purpose for which they were let.
- The act permanently deprives the tenant of the use and enjoyment of the premises.
- The tenant abandons the premises within a reasonable time after the act.
What are some examples of constructive eviction?
The reported Texas cases turn on conduct that makes the space unusable for its leased purpose and drives the tenant out. In Westwood Motorcars it was evidence that vendors constantly blocked a dealership's doors and that the landlord's manager locked the tenant out and destroyed its security system. Statutes describe related conduct, such as cutting off a tenant's utilities or removing doors, locks or landlord-furnished appliances, and give their own remedies for it (Tex. Prop. Code §§ 92.008, 92.0081, 93.002).
Can constructive eviction be waived?
It depends on the kind of lease and the right involved. In residential leases, the landlord's Subchapter B repair duties and the tenant's remedies cannot be waived except in the narrow agreements section 92.006 permits, and a lease clause waiving the utility-interruption protections is void (Tex. Prop. Code §§ 92.006(c), 92.008(g)). In commercial leases, section 93.002 yields to the lease wherever the two conflict. Whether a commercial lease can waive the common-law claim itself turns on the lease language.
How does a tenant start a constructive eviction claim?
No notice or filing creates one. The claim arises from the landlord's conduct and the tenant's departure within a reasonable time, and the tenant then asserts it in a lawsuit for damages in a court whose jurisdiction covers the amount. If the landlord has already sued to evict, the claim cannot be raised as a counterclaim in that case (Tex. R. Civ. P. 510.6(f)). A residential tenant dealing with a health or safety repair has the statutory notice-and-repair procedure of section 92.056 instead.
What is revenge eviction?
Texas calls it retaliation. For six months after a tenant in good faith exercises a legal right, gives a repair notice, complains to a code or utility authority, or joins a tenant organization, a residential landlord may not retaliate by filing an eviction, depriving the tenant of use of the premises, decreasing services, raising rent or ending the lease (Tex. Prop. Code § 92.331). Section 92.332 lists grounds that are never retaliation, including rent delinquency when the landlord gives a notice to vacate.
For a business tenant, the claim typically comes up after a dispute over renewal, rent or repairs turns into interference with operations. Timing can decide the claim, because the fourth element asks whether the tenant left within a reasonable time, and a tenant that stays on for months paying rent makes that harder to show. The lease matters as much as the conduct. Section 93.002 gives way to conflicting lease terms, and the lease's quiet-enjoyment, repair and lockout provisions, where it has them, define what the landlord promised.
- Timing comes first: the tenant must leave within a reasonable time after the landlord's act, and a residential tenant using section 92.056 must first give the required repair notices and allow a reasonable time (presumed to be seven days).
- A residential tenant who is delinquent in rent when giving a repair notice loses the section 92.056 remedies (Tex. Prop. Code § 92.056(b)(6)).
- Tenants commonly keep dated records of the landlord's conduct, the notices exchanged and the move-out, since intent, materiality and timing are fact questions.
- A landlord's pending eviction suit does not resolve the tenant's damages claim, which goes in a separate suit (Tex. Prop. Code § 24.008; Tex. R. Civ. P. 510.6(f)).
- A Texas lawyer who handles commercial or residential landlord-tenant disputes can assess the lease and the facts against these elements.