Courts have long struggled with the covenant of quiet enjoyment and with determining when a violation of that covenant results in constructive eviction for commercial landlords and tenants. The struggle stems from the fact-intensive analysis required to find a constructive eviction and from the consequences of such a finding. Because most of these disputes are resolved quietly through business resolution, a review of how the remedy of constructive eviction has developed may help practitioners navigate future cases.

“Constructive eviction is one species of a violation of the lessee’s right to quiet enjoyment. While one might gain relief for such a violation without being constructively evicted, one cannot be constructively evicted absent such a violation.” See Sears Roebuck & Co. v. 69th Street Retail Mall, 2015 PA Super 208, *18 (Pa. Super. 2015). The Sears case is a comprehensive review of the relationship between quiet enjoyment and constructive eviction, drawing on analogous cases from other jurisdictions.

The Sears court reviewed cases searching for the standard for a violation of quiet enjoyment. Among the standards were: when the utility of the leased property was substantially decreased by structural changes made by the landlord; when attractive features of the premises, such as access and visibility, were altered; when dirt, noise, prolonged construction, and sporadic interruptions of utilities impaired the character and value of the leased premises; and when water penetrated the premises during rainstorms due to poor grading.

Breach of the covenant of quiet enjoyment is a breach of contract, entitling a tenant to a damage remedy like the breach of any other contract. But a commercial lease may limit damages, and perhaps exclude consequential damages entirely, in which case out-of-pocket costs of remediation or partial rent abatement may be the likely measures of damages. A commercial landlord may be able to immunize itself from the consequences of a tenant’s loss of business or other consequential damages flowing from the landlord’s own nonperformance. Total elimination of a damage remedy in the lease, however, is unlikely to be upheld, because every right should have a remedy. If the breach of the covenant of quiet enjoyment rises to the level of constructive eviction, the remedies and consequences are more substantial.

In Sears, the Superior Court reviewed the denial of a JNOV on the issue of constructive eviction. The Sears court approved the following jury instruction regarding constructive eviction:

“A constructive eviction occurs when a tenant’s possession is impaired by acts or omissions of the landlord or those acting under the landlord. The impairment of the tenant’s possession need not be total, but the utility of the premises must be substantially decreased by the landlord’s interference with a right or privilege which is necessary to the enjoyment of the premises. A finding of … constructive eviction suspends the tenant’s obligation to pay rent. In order to rely on constructive eviction to avoid payment of rent, contracted he must abandon the premise within a reasonable amount of time.”

The Sears court added that this instruction is not inconsistent with language in other cases requiring that the premises be “unsuitable for the purpose for which it was leased.”

In Sears, the retail store remained in operation throughout the entire period when its landlord failed to maintain the building as required by the lease. The store suffered from deficiencies in the lighting and electrical systems in the parking deck, water and sewer leaks, sewage backups in the department store, deterioration of the store façade and landscaping, falling bricks that injured a customer, slipping hazards, and generally a horrific situation. The court found that the cumulative effect of all these problems provided evidentiary support for a constructive eviction, and that the problems need not be considered separately.

The court cited facts in analogous cases that also constituted constructive eviction, such as a city-imposed shutdown of the facility, a landlord changing the locks, a refusal to remedy code violations that impaired enjoyment of the property, substantially limited ingress and egress to a gasoline station, the blocking of some but not all rooms in a theatre (but not the theatre itself), and water penetration regularly following rainstorms.

In order to obtain rent abatement, the tenant must actually vacate the premises within a reasonable time. What constitutes a reasonable time depends on the circumstances of each case, with courts generally sympathetic to the tenant’s plight. The consequences of a tenant vacating can result in substantial liability. The fact that the problems in Sears had persisted for years was not dispositive on the issue. A tenant is not required to vacate at the first sign of trouble, especially when the landlord promises remediation and the tenant shows that it intends to comply with the lease by performing self-help remediation.

No bright-line test exists for constructive eviction, and perhaps no such test should exist, because it is an extraordinary claim with a consequential remedy. Nevertheless, constructive eviction remains a necessary judicial remedy in commercial leases, even where the explicit language of the lease purports to preclude such an outcome.

Reprinted with permission from June 16, 2026 issue of The Legal Intelligencer© 2026 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.