what is the scope of the duty to mitigate the damages?
what are the consequences if the landlord fails to meet his duty to mitigate?
the landlord is barred from recovery if he doesn't use reasonably diligent efforts to try to mitigate the damages
is there anything the tenant can do to mitigate damages?
he can find a new tenant
where the tenant abandons, the landlord has a duty to try to find a new tenant. the landlord has the burden of proving that he was reasonably diligent in trying to find a substitute tenant (this is *opposite* the common burden in contract law: because the landlord is in the best position to prove he tried to mitigate the damages)
the landlord must prove that he treated the rental as he did any other vacant stock, even if they didn't prove effective.
holy properties v. kenneth cole
kenneth cole vacated on a 10 year lease, and the landlord brought him to court after 7 years vacancy.
the court says that there's no duty to mitigate in NYS.
the issue is whether, on these facts, the landlord had a duty to mitigate its damages after the tenant's abandonment of the premises and subsequent eviction.
what can the landlord do? (i) the landlord can continue to sit on the property, (ii) he can accept the tenant's surrender and mitigate the damages, or (iii) put the tenant on notice that he is not released, but to take possession to try to relet for the tenant's benefit.
what does it mean to be "for the tenant's benefit?" any rent coming in will be to mitigate the abandoning tenant's damages -- it will pay off expenses that the original breach caused, and any new wins will be in mitigation of the damages.
why would the landlord select option (ii)? because the value of the property has increased (for the benefit of the landlord option)
there is no penalty to the landlord for not choosing one option over the other, whereas there would have been in sommer v. kridel (NJS law)... why is there no duty to mitigate in NYS where as there is in NJS?
maybe the correct rule is not a sufficient reason to adopt the rule. historically, there was no duty to mitigate in the event of a breach by a tenant. this is a modern trend, rising from idea of lease as a contract rather than transfer of interest in property. however, lots of people in NYS have been planning their affairs in reliance of the old rule. changing the rule would upset all of those expectations and business transactions: that would not be good.
why couldn't the court just say that the law should change moving forward? that would be a legislative approach, and the court only has the power to adjudicate on this issue before them.
rios v. carrillo
as of 2008, the courts read that there is no duty to mitigate for a residential landlord, unless the lease says otherwise.
how do we handle this argument?
covenant of quiet enjoyment and the doctrine of constructive eviction. leases are mutually dependent on these principles: if the lease does not meet these requirements, then the agreement may be nullifed.
reste realty v. cooper
effects on the property that will influence how the tenant may use the property...
when it rains, it is really hard to use the space for meetings with clients, etc. the landlord argued that the tenant signed away her rights of quiet enjoyment, and that the rain does not make a permanent uninhabitable problem interfering with her use of the land: the way that the tenant entered the lease, with the issues of the water entering the property.
when the landlord constructively evicts: any act or omission of the landlord which renders the property substandard of the lease agreement or
one off problem that happens a day or two is possibly not enough to create a disruption to the covenant of quiet enjoyment. but if it regularly happens, then it will likely be considered a disruption.
the landlord argues that the tenant remained longer than reasonable.
let's say the landlord had made a promise to fix the leak and did not, but that the water was just a nuissance. would the landlord have breached the convenant of quiet enjoyment?
considering the doctrine of consideration... what is the tenant's injury?
problems.
see note 1 on 427. the value of the expectation of the promise would be due to the tenant. however, the lease is independent of that promise. most
problems.
partial constructive eviction.
in most jurisdictions you must vacate. but you don't have to in NYS. this problem is acute in residential leases, particularly for low-income housing.
implied warranty of habitability:
see hilder v. st. peter
NY RPL 235-b
retaliatory eviction: NY RPL 223-b
tenant's duties:
- the doctrine of waste
- duty to repair
No comments:
Post a Comment