The doctrine of actual eviction applies to wrongful conduct by a landlord which deprives a tenant of physical possession of the demised premises. It can be total (from the entire premises) or partial (from a portion). It has long been the law that a tenant that has been actually evicted can stop paying rent. Significantly, the Court of Appeals decided almost 100 years ago, in a decision by Judge Benjamin Cardozo in The Fifth Ave. Bldg. Co. v. Kernochan,1 that the remedy of ceasing to pay all rent applies even though the tenant has only actually been evicted from a portion of the premises. As the Court of Appeals stated in Kernochan:
Eviction…suspends the obligation of payment…because it involves a failure of the consideration for which rent is paid. …If such an eviction, though partial only, is the act of the landlord, it suspends the entire rent because the landlord is not permitted to apportion his own wrong.2
The Court of Appeals reiterated this principle in Barash v. Pennsylvania Terminal Real Estate Corp. in which, citing its prior decision in Kernochan, the court stated:
In the case of actual eviction, even where the tenant is only partially evicted, liability for all rent is suspended although the tenant remains in possession of the portion of the premises from which he was not evicted.3
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