Fid. Mut. Life Ins. Co. v. Kaminsky

768 S.W.2d 818 (Tex. App. 1989)



In order to prevail on a claim that landlord constructively evicted him and thereby relieved him of his rent obligation, tenant has to show the following: 1) landlord intends that he no longer enjoy the premises, which intent the trier of fact can infer from circumstances; 2) landlord, or those acting for landlord or with its permission, commits a material act or omission which substantially interferes with use and enjoyment of the premises for their leased purpose; 3) landlord's act or omission permanently deprives tenant of the use and enjoyment of the premises; and 4) tenant abandons the premises within a reasonable period of time after the act or omission. 



When appellee tenant, a gynecologist, abandoned the leased premises, appellant landlord sued for the balance of rent due. Appellee claimed appellant constructively evicted him by breaching the covenant of quiet enjoyment in that appellant failed to prevent anti-abortion protestors from picketing his office. Appellant urged the trial court erred by denying its motion for judgment non obstante veredicto or to disregard jury findings or, alternatively, the evidence was factually insufficient to support the jury's verdict and the trial court erred by denying its motion for a new trial. The court affirmed judgment.


Does a landlord’s failure to act in the face of repeated requests to protect a tenant’s quiet enjoyment of the premises constitute a constructive eviction?




The court affirmed the judgment, holding that appellant, not the protestors, caused appellee to abandon the premises, and the jury's findings were not so against the great weight and preponderance of the evidence as to be manifestly unjust. The court further held a landlord's acts or omissions could form the basis of a constructive eviction, appellant's conduct permanently deprived appellee of use and enjoyment of the premises, and neither appellant's having made some effort, nor its lack of sponsorship or encouragement of the protestors, was persuasive to the contrary.

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