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Mitigate Damages

In most of the U.S. a landlord is required to mitigate the damages caused by lost rent by accepting a new tenant or approving a sublet.

Your landlord may be obligated to cooperate with your request to assign your lease or sublet by providing you consent within a reasonable time frame. If they don't give consent they must offer a valid reason for refusing.

This is because the law requires them to mitigate, or minimize, any damages related to your departure. The most obvious damage is lost rent. They can minimize the amount of rental income they lose either by accepting a qualified tenant or finding one on their own.


Background on the Law

The obligation mitigate damages came about as part of a trend towards modernizing landlord-tenant law. In the early days of landlords and tenants, the rental property in question was farmland. People rented it for growing seasons that were one year long. If a tenant left after harvesting but before planting no one else could be expected to rent the property until the next season started. The landlord couldn't be expected re-rent it.

A vacant apartment or house can be a blight on a neighborhood in a way that an unused farm is less likely to. That's why, in the 1970s, a group of attorneys decided to prevent landlords from doing this. After all, if you can continue charging a tenant for rent even when they're gone, you can avoid most of the hassle of being a landlord (marketing, screening, negotiating, cleaning and fixes units) with all of the upside (rental income).

The duty to mitigate is one part of the larger Universal Residential Landlord Tenant Act, which is the closest thing that the U.S. has to a federal landlord-tenant law.

Where is a Landlord Obligated to Mitigate Damages?

28 states have adopted statutes that follow the URLTA's guidelines for requiring a landlord to mitigate damages. If you live in one of these states you can cite the URLTA if you find yourself in a situation where your landlord is not cooperating with your request to assign or sublet: Alabama, Alaska, Arizona, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Texas, Virginia, Washington, Wisconsin.

A handful of other states have not explicitly adopted the act through their legislatures, but have enough precedent (previous court cases) to make it enforceable. These states include: Indiana, New Jersey, Ohio, Vermont, Colorado, Idaho, North Carolina, Utah, Wyoming.

Five jurisdictions - Massachusetts, New Hampshire, New York, South Dakota, West Virginia - have some precedent, but not enough to make the duty unequivocal.

In only four states do landlords have no duty at all: Arkansas, Minnesota, Mississippi and Pennsylvania.

Failure to Mitigate

How do you know if your landlord is failing to meet these legal obligations? If they make it harder to get a new, qualified tenant paying rent in any way, either by refusing to cooperate with you or by refusing to accept a new tenant without reasonable cause. For example:

  • Asking for a higher rate of rent than would have been charged during the remainder of the lease
  • Failing to make necessary repairs
  • Refusing to respond to inquiries from prospective tenants or show the property to them
  • Unreasonably refusing qualified applicants

There are probably specific things that landlords have done in your state which court cases deemed to be illegal based on their duty to mitigate. You can review previous cases - from either commercial or residential property - and see if they apply to you. In any case, a good rule of thumb is that if a landlord doesn't do the things that they normally do to rent a unit then they are not making a good faith effort to mitigate damages.

What to do if Your Landlord Fails to Mitigate

Make sure that your landlord is aware of his or her duty as a first step.

As a second step, be prepared to show him or her documentation of a failure to mitigate damages that could be taken to court if it came to that. There is no consistent, nationwide law that clarifies who has the burden of proof, so assume that the burden falls on you and document everything:

  • Don't interact over the phone - keep everything in writing
  • Save all email correspondence
  • If they ignore you, refuse to show the unit to renters that you found, or refused to accept someone you asked to apply then you will need to document every part of this interaction

As a last step (if it comes to this) you can write a formal legal letter to your landlord. The letter should document the total amount of damages in question, the amount of damages that could have reasonably been mitigated and should refer to common law for your state.


Next Steps

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