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Barash v. Pennsylvania Terminal Real Estate Corp.

    Brief Fact Summary.

    Plaintiff leased office space from Defendant. The lease represented that Defendant would provide ventilation from 9 am to 6 pm. Defendant turned the air off to the office at 6 pm and Plaintiff stated that the office became so hot that it became uninhabitable. Defendant agreed to provide after-hour ventilation for $25 per hour. Plaintiff sued Defendant, alleging that Defendant’s failure to provide a continuous flow of fresh air after hours and on weekends constituted an actual partial eviction.

    Synopsis of Rule of Law.

    A landlord’s failure to provide something unrequired under the lease does not constitute an actual or constructive eviction.

    Facts.

    On September 15, 1967, Barash (Plaintiff) leased office space from the Pennsylvania Terminal Real Estate Corp. (Defendant). The windows to the office were sealed and the air supply and circulation was entirely under Defendant’s control. Before entering the lease, Defendant represented to Plaintiff that the building would either be air-conditioned or have a natural and continuous flow of air through the building’s duct system. Plaintiff signed the lease relying on Defendant’s representations. However, the lease itself only required Defendant to provide air cooling from June through September from 9 am to 6 pm. The lease also contained a merger clause stating that Defendant made no representations or promises that were not expressly in the lease. On May 15, 1968, Plaintiff took possession of the office. At 6 pm, Defendant turned off the air to the office. Plaintiff states that the office became so hot that it became uninhabitable. Defendant refused to provide after-hour ventilation unless Plaintiff paid $25 per hour. Plaintiff refused to pay rent and sued alleging that Defendant’s failure to provide a continuous flow of fresh air after hours and on weekends constituted an actual partial eviction. The Appellate Division ruled in Plaintiff’s favor.

    Issue.

    Whether a landlord’s failure to provide something unrequired under the lease constitutes an actual or constructive eviction.

    Held.

    No. The court of appeals’ ruling is reversed. A landlord’s failure to provide something unrequired under the lease does not constitute an actual or constructive eviction.

    Discussion.

    To support a claim of eviction, the tenant must allege a wrongful act by the landlord that deprives the tenant of actual possession or the beneficial enjoyment of the leased property. The deprivation must involve something that the tenant is entitled to under the lease. An actual eviction requires physical expulsion or exclusion from the premises. A partial actual eviction can occur where the tenant is deprived of physical possession of only a portion of the premises. A constructive eviction, in contrast, does not require physical expulsion or exclusion. Instead, it requires that the landlord substantially and materially deprived the tenant of the beneficial use and enjoyment of the premises. In addition, the tenant must abandon possession. If the tenant remains in possession, he may not claim constructive eviction. Here, the lease between Plaintiff and Defendant does not entitle Plaintiff to 24-hour ventilation. Plaintiff cannot argue that eviction has occurred where the lease explicitly limits Plaintiff’s ventilation rights. Assuming, however, that the lease can be reformed to grant Plaintiff a right to 24-hour ventilation, his claim of actual eviction would still fail. First, an actual eviction has not occurred. By cutting off the ventilation after hours and on weekends, Defendant did not physically exclude Plaintiff from any part of the premises. Therefore, Plaintiff does not have a claim for an actual partial eviction. Nor does Plaintiff have a claim for constructive eviction. The lack of ventilation does constitute a substantial diminution in Plaintiff’s beneficial enjoyment of the premises. However, Plaintiff’s failure to abandon the premises precludes a finding of constructive eviction.


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