Posted on Practice and Procedure Blog / Blog / A Comprehensive Guide to Landlord Mitigation of Damages in 2022

A Comprehensive Guide to Landlord Mitigation of Damages in 2022

[Page Updated 07/12/2022] The duty to mitigate applies even in the absence of any clause proclaiming the landlord can sleep on their rights and not mitigate. Whether or not a lease agreement has been signed between the landlord and tenant, disagreements do arise from time to time leaving either party seeking the best way to mitigate damages.

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Landlord MUST Mitigate and Not Rely on Suing

Ultimate Guide to Mitigating Rent
This usually happens when the tenant breaks the terms of the lease by failing to pay rent or some other similar infringement. While the eviction process and subsequent search for a replacement tenant has always been difficult for the landlord, it is made more complicated by situations such as the eviction moratoriums imposed during the recent Covid-19 pandemic.

Profitable Property

However, for the rental property to be profitable, it is the landlord’s duty to mitigate damages caused by the tenant’s breach of lease. As such, they need to have a plan of action so they can know what to do after reasonable efforts have been made to recover rent money.

Michael Ehline, and the experienced attorneys at Ehline Law Firm are here to help landlords who find themselves in such situations. If you are having problems with tenants who withhold rent, refuse to leave after the lease expires, re-rent your property without approval, or break specific rules of the rental agreements, then give us a call at (833) – LETS SUE.

A Landlord’s Duty to Mitigate When the Tenant Breaks the Lease Agreement

In most jurisdictions, such as Alabama, California, Georgia, Florida, Maryland, Mississippi, Missouri, Massachusetts, Tennessee, South Dakota, and Washington, the duty to mitigate damages after retaking possession of a rental premises generally falls on the landlord.

When a tenant moves out before their lease agreement is up, then the court may rule that it is the landlord’s duty to mitigate damages, which includes making any repairs that may be necessary to re-rent the property to a prospective tenant. If, for any reason, a landlord fails to mitigate damages in a situation where reasonable efforts could have been made to acquire a replacement tenant, the tenant cannot be asked to cover the outstanding rent stated on the lease, based on the information provided.

Landlord Causes of Action: When Things Go Wrong

There is a wide range of disputes that may arise between the landlord and the tenant that may land them in court trying to mitigate damages after lease agreements have been breached.

While this is not an ideal situation for anyone, if reasonable efforts have been made to solve the issue without success, then the only solution is to hire a lawyer and sue.

The following are some of the common lawsuits by landlords that we can assist you with:

Failure To Pay Rent

By far, the most common cause of complaint among landlords is when a tenant fails to pay rent on time. In such cases, if it can be proved that reasonable efforts have been made to recover unpaid rent for the leased property, then the landlord can approach the courts and request that the tenant be evicted.

Understand, it is also the landlord’s right to withhold the security deposit where applicable, and seek monetary damages for unpaid rent, any accompanying late fees, and costs associated with the lawsuit language.

Breach of Lease

In cases where the tenant breaches the lease in any way, the landlord has the right to evict them after adequate notice has been given. If the landlord fails to prove a clear violation of the rental agreement, they cannot forcibly remove the tenant from the premises.

Reasonable diligence on the part of the landlord means they must give a 30-day notice for violation of the lease, or 14-day notice for a serious breach of the lease that poses clear and imminent harm to other occupants of the property.

If the tenant refuses to leave early within the stipulated notice period, then the landlord can file a Complaint and Summons Against Tenant in Breach of Lease. This will effectively put the matter into the hands of the court system and is a very important step when mitigating damages.

Wrongful Detainer

Landlords that discover that a person has been living on their property without permission, can file a lawsuit against the individual for eviction without notice and any money damages that the court rules to be reflective of what the reasonable rent of the property would have been. If the unlawful tenant abandons the property before the court date, then the landlord can show up at the court and request that the lawsuit be dismissed.

Holding Over

When a tenant refuses to vacate the property after the lease term has expired this is called holding over, and the landlord has the right to sue for eviction and money damages.

As long as the tenant is not being forced to terminate the lease early without cause, then in most cases, the court rules in favor of the landlord. Money damages can include any outstanding rent owed by the tenant, the security deposit as a penalty for breaching the lease term, and the value of any losses in rental income due to being unable to sign prospective tenants.

Money Damages After Tenant Leaves

The purpose of the security deposit is to cover any property damage caused by the tenant that the landlord will have to have fixed before a new tenant can occupy the premises. However, in some cases, the extent of the damage to property will far exceed the value of the security deposit, in which case the landlord can sue the tenant for money damages to at least cover the bare minimum of costs. The court will also consider the time it takes to restore the premises to livable conditions, during which time the landlord will be unable to re-rent the property to a prospective tenant.

Breaking a Rental Lease and Grounds for Eviction

Just as there are many reasons for eviction, there are also many valid reasons why a tenant may choose to vacate a premises before their lease ends, such as finding employment in another city, imminent sale of the property, or immigration.

The following are some of the reasons deemed acceptable by the contract law in most states that landlords and prospective tenants need to be aware of:

Valid Reasons for a Tenant to Break a Lease

A tenant’s breach of lease terms may be because of the following:

  • Military Reasons

If a tenant is forced to leave for active duty or to change stations then, according to the Service Members Civil Relief Act (SCRA), the landlord has no choice other than a termination of the lease agreement. The landlord has 30 days from the day they are served with the written orders for active duty to comply with the lease termination.

  • Health Problems

While health issues are not considered legal reasons to end a lease early in the entire country, other states do allow a tenant to vacate their home if they feel that their health is at major risk by staying there.

  • Landlord Has Violated the Terms of the Lease

It is the landlord’s duty to ensure that the premises they are letting out is kept in a safe and habitable condition by doing regular repairs and maintenance throughout the building. If the landlord fails to maintain the building in a reasonable state, the tenant has the right to seek termination of the lease and vacate the unit.

Lawful Grounds for Eviction

The law allows eviction of the tenant before the lease ends under the following conditions:

  • Tenant Fails To Pay Rent

A landlord can seek to evict a tenant who does not pay rent on time and free up the unit for new tenants after provision of evidence that reasonable efforts for rent recovery have been made.

  • Property Damage

Not taking care of the property and causing a lot of damages can be grounds for eviction of the negligent tenants. The landlord can also use the security deposit, or a portion thereof, in mitigating damages to their property.

  • Illegal Activities

Tenants who engage in any illegal activities on the premises will be deemed to have violated the terms of the rental agreement. In such cases, a landlord should hire the services of a good attorney to assist in the eviction procedure without putting themselves at risk of breaching the law.

  • Lease Term Ends

When the lease ends, the tenant has to vacate the property after being given a reasonable notice period.

How to Properly Evict a Tenant

At Ehline Law Firm, we have assisted many landlords in properly evicting unwanted tenants from their properties. One thing we have always advised our clients on is the importance of knowing how to evict a person without breaching the law and landing themselves in court.

This has never been more important than during the recent Covid-19 outbreak where contract laws and public policy regarding tenancy were temporarily suspended to provide a certain amount of cushion for cash-strapped tenants.

If you intend on evicting tenants and retaking possession of your property, take the following steps:

  • If you win the lawsuit, allow the court-appointed sheriffs to handle the eviction process, which usually takes not more than eight days.
  • Approach an Ehline Law attorney for clarification on eviction statutes
  • Make reasonable efforts to resolve the dispute with your tenant
  • As a landlord, provide written notice of eviction to the tenants
  • Wait for you and your tenant to be issued a court date
  • File for eviction using the proper court channels
  • Provide solid and legal reasons for eviction

Reasonable Efforts and the Role of the Expert Witness

When it comes to proving that reasonable efforts have been made to mitigate damages, it is the landlord’s responsibility to provide an expert witness who can attest to this. The testimony from the witness is essential in showing that the duty to mitigate has been properly observed by the landlord.

In most cases, the court will require a breakdown of the steps taken by the landlord in mitigation efforts as well as the inconveniences that came about when the tenant decided to abandon the property prematurely, such as advertising, hiring a property broker, finding new tenants, and not being able to re-rent at the same rentals as before.

It is not always clear which party carries the burden of proof when it comes to demonstrating those reasonable efforts to acquire prospective tenants.

The following are what the courts deem to be reasonable efforts on the part of the landlord:

Basic Efforts

The landlord has to advertise the premises on various platforms such as newspapers or a real estate website. They also have to make time to show the property to prospective tenants and hire the services of a real estate broker. In other words, the court requires that a landlord take an active role in the search for a new tenant rather than doing the bare minimum.

Advanced Undertakings

At times, the landlord is required to go a few steps further in trying to secure a replacement tenant, such as making general repairs to the property to make it easier to market.

However, determining what a landlord must or mustn’t do is up to the discretion of the court, for instance, a landlord may not be required to repair the property if the previous tenant is responsible for leaving the house in its current poor condition.

In circumstances whereby the vacating tenant owes the owner rent or utilities, then the landlord is under no obligation to reduce any money damages or provisions they are entitled to.

Signing a New Tenant

Even after going the extra mile in making repairs and advertising on a rental property website, the landlord may still be required to show that they have signed a new professional lease with a prospective tenant.

In such cases, an expert witness may be required to offer testimony on the intended use of the premises by the new tenant because the landlord is under no obligation to accept any and all tenants.

Just like with any other lease, the landlord/tenant relationship is one that should benefit both parties, meaning the landlord may reject a would-be tenant if they are found to be unsuitable, for example, if their credit scores are poor.

There is also no reason to assume that the landlord must assist the tenant in terms of the provision of resources to make paying rentals easier.

Buying or Selling a Rental Property in the Middle of a Lease Term

What if you need extra cash and your only option is to sell your rental property? Maybe a great offer comes along that is too good to resist; what happens to the landlord/tenant lease? These are some of the issues that an experienced attorney, such as Michael Ehline, can assist landlords with a judgment or settlement.

The good news is that we can help you do it in such a way that will put neither the landlord nor tenant at a major disadvantage. As a landlord, there are things you can do to mitigate the effects of the sale on your tenants.

We recommend the following:

  • If needed, assist the tenant to find new accommodation at a similar renting cost
  • Agree on the most convenient showing times for the property
  • Make sure the prospective owner knows about the tenants
  • Ensure the tenant is up to date with rental payments
  • Give your tenant enough notice of the intended sale

How Ehline Lawyers Can Help

Whether your tenant breaks the lease agreement, or you find yourself having to make mitigation efforts after your property is suddenly vacated, there are a lot of services that a qualified attorney can assist you with.

If you approach our legal office for a free consult, we can offer the following:

  • Helping you recover outstanding rent and compensation for damage to property
  • Preventing unfair mitigation from being imposed on you
  • Presiding over hearings between landlord and tenant
  • Providing legal advice in terms of the rental statute
  • Drawing up legally sound leases
  • Representing you in courts

Final Word Over Landlord Mitigation of Damages

Landlords have not always been required to provide mitigation for damages that result from premature termination of leases, but that has since changed in many states. The legal process is now highly skewed in favor of the tenant. And this is partly because of the effects of global pandemics such as the Covid-19 outbreak will create.

Many property owners are not yet familiar with the implications of these changes in rental laws, and they are often caught unawares when ordered by the courts to mitigate their own damages. If you find yourself in a similar situation, then visit our website for more information on how we can assist you. Give us a call today and let one of our experienced attorneys take the case.

You can save yourself a lot of money by having the right lawyer by your side. Michael Ehline and his team of expert lawyers have years of experience assisting landlords in successfully handle the issue of mitigation.


Michael Ehline

Top rated injury lawyer, Michael Ehline in Tuxedo Suit

Michael is a managing partner at the nationwide Ehline Law Firm, Personal Injury Attorneys, APLC. He’s an inactive Marine and became a lawyer in the California State Bar Law Office Study Program, later receiving his J.D. from UWLA School of Law. Michael has won some of the world’s largest motorcycle accident settlements.


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