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KMG

Commercial lease constructive eviction

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I am the tenant.  Our former landlord is suing us for rent because we vacated the commercial property a few months before the end of the lease.  We had given 2 months notice after attempting to get him to resolve a nuisance he caused, which he refused, and paid up until the last day we were there.  We left due to a classic constructive eviction which I am going to counter sue him.

 

While gathering the evidence online last night, I came across an online post where the new tenant in our old space announced they were moving in.  This was 9 days after we vacated.  We have dated photos showing the space was being renovated the following week.  

 

We are being sued for rent for that month and the month following.

 

How in the world are we being sued, besides the fact that the landlord thinks we may be unaware that he had re-leased the space and renovations had started?  In South Carolina, are there any kind of additional damages we can sue for because of his intentional attempt not only to get us to leave but now his attempt to double dip and collect rent from us while he was renovating the unit for his next tenant?

 

 

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18 minutes ago, KMG said:

How in the world are we being sued, besides the fact that the landlord thinks we may be unaware that he had re-leased the space and renovations had started? 

 

Anybody can sue anybody for anything. That's the "how" of it.

 

One of the basic doctrines of contract law is that the non-breaching party cannot profit from your alleged breach. So that's a defense you can raise.

 

21 minutes ago, KMG said:

In South Carolina, are there any kind of additional damages we can sue for because of his intentional attempt not only to get us to leave but now his attempt to double dip and collect rent from us while he was renovating the unit for his next tenant?

 

If you can actually prove (not just say) wrongful or illegal eviction you can countersue for any monetary damages you actually incurred as a result of having to move out early.

 

Understand, however, that you could fail there if you had remedies for the alleged "nuisance" that you didn't avail yourself of contemporaneously.

 

 

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52 minutes ago, KMG said:

How in the world are we being sued

 

This question makes little sense.  How you are being sued is because your former landlord filed a lawsuit.  If you're asking for complete strangers to explain the landlord's thought process, that's obviously a little silly.

 

 

53 minutes ago, KMG said:

are there any kind of additional damages we can sue for because of his intentional attempt not only to get us to leave but now his attempt to double dip and collect rent from us while he was renovating the unit for his next tenant?

 

No, but the fact that the landlord re-let the premises before your lease term expired -- if proven -- is obviously a defense.

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Yes, sorry for the how in the world question.  I do know anyone can sue, it's just frustrating to have to deal with this.  I've kept good documentation just in case we were sued and consulted with a retired judge and the local police along the way and have tried to do everything correctly.  I'll be representing myself against a well known attorney and have been advised to request a jury trial.

 

In the complaint for breach of contract, the attorney lists the wrong address and attached a lease that we did not sign.  I have the email where the landlord sent us the corrected lease with the right address and with an addendum of changes.  That's the one we signed years ago.  They do have our signature page though.

 

Also, in another point in the complaint, the attorney doubled the amount of the monthly rent.

 

I'm assuming that if I just ask for a dismissal for these errors that they will just re-file.  

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8 minutes ago, KMG said:

I'm assuming that if I just ask for a dismissal for these errors that they will just re-file.  

 

You wouldn't even get a dismissal. What's in, or attached to, the complaint is not grounds for dismissal. It is, however, items that you can raise as an affirmative defense in your answer and then seek the appropriate documents during discovery.

 

What counts is what is presented as EVIDENCE during the trial.

 

10 minutes ago, KMG said:

I'll be representing myself against a well known attorney

 

Going up against an attorney without one of your own is like taking a rubber knife to a gunfight. You'll be the one on the ground bleeding.

 

11 minutes ago, KMG said:

have been advised to request a jury trial.

 

Advised by who? Your auto mechanic, doctor, grocer?

 

I don't see any advantage to a jury trial for a couple of months rent. Besides, you might have to pay for the jury if you lose. Worse, if your lease has a bilateral attorney fee provision you might end up paying for your enemy's lawyer if you lose.

 

I suggest you seek the advice of an attorney before you get in over your head. You have some potential defenses but I doubt that you know how to successfully present them.

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This is very small town stuff.  The amount of back rent is less than my attorney's fees would be.  The court's office will assist in making sure you have the right forms and fill them out correctly, they just won't give legal advice, of course.  

 

The advice to opt for a jury (no extra fees) was two fold, first, in case the judge golfs with the attorney or landlord and second, that it would be a David vs Goliath scenario, with me being an older kind grandma figure who owns a well liked family business, going against the big city attorney and landlord.  

 

But you are correct, I know just enough law to get me in trouble.  I'll go to the court's office next week after I have all our evidence together and then before trial, I'll have my retired judge friend grill me.

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On 11/8/2018 at 12:13 PM, adjusterjack said:

 

You wouldn't even get a dismissal. What's in, or attached to, the complaint is not grounds for dismissal. It is, however, items that you can raise as an affirmative defense in your answer and then seek the appropriate documents during discovery.

 

What counts is what is presented as EVIDENCE during the trial.

 

I suggest you seek the advice of an attorney before you get in over your head. You have some potential defenses but I doubt that you know how to successfully present them.

This is small claims court.  I've talked with two attorneys and have sat in on two jury trials to see how the court operates. I've researched tons of similar cases online, and have compiled our evidence - I have evidence for every point of the complaint we disagreed with and for every point in our counterclaim.  I have proof of damages/lost revenue from multiple years of tax forms. I've been coached on how to question witnesses and get evidence accepted. I've read appeals on similar cases.  A couple of times I got nervous and asked the attorneys to represent me, but they didn't want to go to small claims.  So here I am.

 

So I want to go to the pretrial hearing totally prepared for anything and everything, organized and professional.  Unfortunately, I wasn't able to sit in on one to see how they do things.  After the judge goes over things with the plaintiff, if he hasn't presented the correct lease, I do want to ask if he found it and if not, I want to ask the judge to dismiss the plaintiff's complaint for breach of contract since he doesn't have the contract.  Does that make sense?  He had three months since we answered the complaint to get it.  I have it, but I don't have the burden of proof, correct?  Maybe the judge will say no, but maybe he will agree with me.

 

Can you help me with the wording of the motion?  I don't want him to be able to sue me again, I don't want to pay his attorney fees.  I'm a little confused on the terminology - directed verdicts, with prejudice, etc.  And I do want to continue with the counterclaim for Constructive Eviction, so maybe I don't want the judge to dismiss the original complaint.

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6 minutes ago, KMG said:

I don't have the burden of proof, correct? 

 

Not exactly. The plaintiff has the burden of persuading the judge that he has met the elements of his case by a preponderance of the evidence, that his version of the facts is more likely correct than not. To do that he must provide evidence to support his claim. Once he does that the burden shifts to you to rebut his claim with evidence of your own.

 

25 minutes ago, KMG said:

I want to go to the pretrial hearing totally prepared for anything and everything,

 

Yeah, well, nobody is ever totally prepared for anything and everything when one goes to court. I can guaranteed that things will get out of control, especially if you are facing the landlord's attorney.

 

27 minutes ago, KMG said:

After the judge goes over things with the plaintiff, if he hasn't presented the correct lease, I do want to ask if he found it and if not, I want to ask the judge to dismiss the plaintiff's complaint for breach of contract since he doesn't have the contract.  Does that make sense?

 

No, it doesn't. You're overthinking it. This is small claims court. It's informal. It could go like this:

 

Judge to Plaintiff: Did you rent your place to KMG?

Plaintiff: Yes

Judge: How much a month?

Plaintiff: $2500 (or whatever).

Judge to KMG: Is that true?

KMG: Yes, but...

Judge: No buts, it's a yes or no question.

KMG: Yes.

Judge to Plaintiff: You're suing for two months rent?

Plaintiff: Yes

Judge: Why?

Plaintiff: KMG moved out two months before his lease was up.

Judge to KMG: Is that true?

KMG: Yes, but...

Judge: No buts, you'll get your chance.

KMG: Yes.

Judge to Plaintiff: Anything else?

Plaintiff: No, Your Honor.

Judge to KMG: Tell me why I shouldn't award him two months rent.

 

That's when you present evidence that he re-rented 9 days after you moved out and he shouldn't be allowed to profit from your breach. You should research South Carolina contract cases that say that.

 

So far, the judge isn't going to care who has what copy of the lease.

 

Judge to KMG: You're countersuing for constructive eviction?

KMG: Yes, Your Honor.

Judge: Explain

 

That's when you tell him how you were constructively evicted and present whatever evidence you have to back that up. If the LL failed to comply with the terms of the lease, you explain it based on your copy of the fully executed lease. If the Plaintiff has anything different to say he will be given the opportunity to rebut your counter claim and present evidence supporting his position.

 

Forget getting a dismissal on a technicality. The judge is going to want to rule on the merits and, one way or the other, there's going to be a judgment, even if it's a wash. And he's not going to let you spend the day in his courtroom doing your imitation of Perry Mason. the hearing will be 15 to 30 minutes and possibly involving the judge telling you to work it out while he takes a break. (I had that happen when I sued my tenants a long time ago).

 

I may have been a bit facetious in my dialogue, but you get the idea.

 

By the way, I would also like to know how you were constructively evicted. You haven't said anything about that yet.

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On 3/2/2019 at 7:28 PM, adjusterjack said:

By the way, I would also like to know how you were constructively evicted. You haven't said anything about that yet.

 

I appreciate all your feedback, facetious or not!  

 

We rented half of a commercial building for almost 3 years, the dividing wall the landlord constructed when we moved in allowed us to hear conversations from the other suite and they could hear us, which wasn't a problem.  Our business included taking phone orders, doing customer service, writing proposals, etc.  We have been in business 29 years.

 

In the last few months of our lease, the other tenant moved out and the landlord rented to a loud dance studio that blasted music into our suite.  He didn't require them to put in soundproofing.  We complained several times and the landlord finally told us they would not fix it and they would not ask the other tenant to turn down the volume.  I replied that we couldn't work under those conditions so we would have to leave early.  It took 8 weeks to secure a new location and move out, they continued to blast the music every day, and then they moved into our suite.

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18 hours ago, RetiredinVA said:

"Quiet enjoyment" means the tenant will not be disturbed by another demanding use of the premises.  It has nothing to do with noise.

Yes, it can even mean noise.  I've found several similar cases.  

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18 hours ago, RetiredinVA said:

"Quiet enjoyment" means the tenant will not be disturbed by another demanding use of the premises.  It has nothing to do with noise.

 

It can certainly include noise that is so egregious that it prevents the victim from using his premises.

 

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Hello, I’m being sued for back rent, we had a small dog grooming business but moved out due to ceiling leaking, no water, electrical violations ( done by landlord ) etc,  our defense is constructive eviction , we had to closed our business for several weeks due to electrical problems , building department was involved, inspections were made but nothing was fixed so we moved out, we do have many emails we sent to landlord about the issues( months ) Landlords attorneys ask for discovery demand and we responded, they told us they will continue with the lawsuit. Do we have a chance to win ?? We countersued them for our deposit , hardship, stress and lost of business ( went out of business)

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4 minutes ago, Misshel said:

Hello, I’m being sued for back rent

 

Great.  Please start your own thread (make sure to tag your state in your new thread).  Resurrecting long dormant threads is frowned on.

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