Understanding a Landlord’s Duty to Mitigate

by Chris on September 1, 2014

The value of a lease agreement is stated right on its face. But did you know that’s not what you’re likely to get if a tenant walks out on the lease?

Although there is a lump sum owed for the agreed-upon term of the lease, that figure is misleading for landlords who think they can bank it. In fact, landlords seldom are able to enforce that amount from a lease-breaking tenant.

tenant screeningWhile landlords generally can’t terminate a lease agreement without cause, tenants may be able to leave for no good reason, and with minimal financial responsibility. Because of the duty to mitigate, landlords automatically lose the lease-breaking game.

There simply is no sitting back and waiting for the lease term to end while the rent accrues. The landlord must jump into action, restoring any damage, finding a new tenant, and getting that rental property back into service as quickly as possible.

That’s not to say that tenants won’t be accountable for any of the losses. Landlords can pursue deadbeat tenants for damage to the property, as well as rent lost while searching for a new tenant, the costs of acquiring that new tenant and possibly for any shortfall if the rent must be lowered.

But all that hinges on a tenant not having good cause to leave the property, like habitability issues. If the landlord has been lax on repairs or the property suffers conditions like pest infestations, the amount owed by the tenant may be offset by what the tenant is owed.

While damage caused will be charged to the tenant, whether an individual landlord can deduct those charges from the tenant’s security deposit or rent deposits must be determined on a case-by-case basis.  There are local rules for handling security deposits. For instance, if the landlord didn’t given proper notice of the deposit deductions, it may be illegal to take the money.

The best practice for all landlords is to rely less on the lease agreement, and more on their tenant screening skills. Make it a priority to look for tenants who have a good rental history. This is demonstrated by a list of previous addresses that does not show unusual lease terms or gaps.

To maximize the amount you recover from a lease-breaker, make sure you:

Record your expenses, including all damage to the unit prior to restoration and re-letting to a new tenant.

Track your advertising expenses and the cost of tenant screening reports when finding the new tenant.

Keep a record of the responses you receive from ads to prove how long it takes to find a new tenant. Include a list of applicants rejected in the process. You must act with diligence to fill a vacancy, but you don’t have to lower your standards.

Collect receipts, not just estimates of damage.

Include a record of all of your time and employee time, if any, expended on restoring the unit and finding a new tenant.

Make sure your rental application captures the information needed to collect a judgment against the tenant. That includes verification of the tenant’s legal name, employer, bank info, credit and personal references.

Despite the duty to mitigate, the law does strive to restore a landlord to the place they’d be in if the original lease were completed. With a little work and good documentation, that can still occur, even when the tenant breaks a lease. Careful tenant screening can prevent the problem in the first place.

This post is provided by Tenant Verification Service, Inc., helping landlords reduce the risks of renting with fraud prevention tools that include Tenant Screening, Tenant Background Checks, (U.S. and Canada), as well as Criminal Background Checks, and Eviction Reports (U.S. only).

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Disclaimer: The information provided in this post in not intended to be construed as legal advice, nor should it be considered a substitute for obtaining individual legal counsel or consulting your local, state, federal or provincial tenancy laws.

{ 1 comment… read it below or add one }

Andrew September 16, 2014 at 5:42 am

“Despite the duty to mitigate, the law does strive to restore a landlord to the place they’d be in if the original lease were completed.”

In Ontario the reality is a landlord whose tenant has broken the lease has little effective recourse. The tenant does not have to give any forwarding information, (meaning the landlord cant find the tenant to serve them legal notice), the landlord/tenant board refuses to hear an application from a landlord once the tenant has vacated (but will hear an application from a tenant a full year after the tenant has vacated), and collection companies are reluctant to collect from a tenant due to low rate of success (leaving the landlord with little means to collect on a judgement anyway). This is another reason why I always ask the tenant for their SIN. I make it clear they do not have to give it to me, but I cant do a through credit check without it. The tenant knows that when I have their SIN, they cant simply disappear. Consequently I have had very few issues.

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