Scene-In-Action (Scene) rented a building from Automobile Supply Co. (Auto) for Scene’s business of manufacturing electrical advertising signs. The space was also used to house administrative offices of the business. Included in the lease was a provision requiring Auto to supply heat to the premises. The heat provision included language to the effect that efficient heat was necessary to keep the building comfortable in order to produce signs and carry on normal office tasks. Soon after the lease was signed, the building was without heat for several hours on numerous occasions throughout two months. Scene made repeated complaints about the situation to Auto, but Auto failed to fix the problem. The problems continued, and as the temperature dropped during the height of winter, there were many days when the temperature inside was below 50 degrees. As a result of the lack of heat, a number of Scene’s employees would not return to work, claiming they were ill and unable to work in the cold conditions. Unable to carry on business, Scene terminated the lease, claiming it was constructively evicted because it had been deprived of the beneficial use and enjoyment of the premises. Auto countersued for payments owed, claiming Scene could have vacated the premises earlier but instead stayed and maintained business operations without paying rent. Thus, Scene was not constructively evicted.

1. Who prevails and why? Do the conditions support a constructive eviction theory? 2. Suppose that the landlord had made good faith efforts to fix the problem but was unable to for a period of three months. How would that impact your analysis?

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