What to do when rental property stinks: how bad does it have to get?

• Author: Spendlove, Gretta C.

BACK IN 1953, a group of lawyers leased offices on the second floor of a building on Main Street in downtown Salt Lake City. But they fled the premises before the lease was up, reciting a list of "horribles" A shoeshine stand and barbershop obstructed the lobby, confusing clients into thinking they had missed the building's entrance. A beauty shop on the main floor sent odors of permanents and hair dyes floating through their adjoining offices. There were short building hours and unlit stairways at night, requiring attorneys and clients to "feel their way up and down." The stairway was sometimes used as a latrine, and during the winter the building was so cold that attorneys and their clients had to keep on their overcoats.

After the lawyers fled, the landlord sued them for the rent due for the remaining lease term. They defended themselves on the basis that they had been "constructively evicted" by the landlord's failure to maintain the building, and so did not owe rent. The court, in Thirteenth & Washington Streets Corporation vs. Neslen, agreed with the attorneys and the doctrine of "constructive eviction," as applied to commercial leases in Utah, was born.

Under traditional real estate law, tenants have to pay rent, regardless of the condition of the premises. They can make a claim for damages against the landlord, but in the meantime, they can't stop paying rent. Bit by bit, the courts have whittled away at the broad protections of landlords under the law.

Today, it is still dangerous for a residential or commercial tenant to pick up and leave if rented property is maintained poorly. The tenant bears the burden of proving it was "constructively evicted," and the standard is ambiguous. The tenant's right of possession of the property must be interfered with by the landlord so as to render the property "unsuitable for the purposes intended." The tenant must have provided the landlord with "adequate notice" of the defects and allowed the landlord a "reasonable amount of time" to remedy the defects before moving out.

In Barton vs. Tsern, a 1996 case, the Utah Supreme Court held that a commercial tenant's promise to pay rent is dependent on the landlord's performance of the covenants that the tenant relied on when entering into the lease. In Barton, the landlord failed to maintain an elevator for a company operating an antiques business, even though the...