UMKC School of Law

September, 2001

Patrick A. Randolph, Jr.

Elmer Pierson Professor of Law

Table 1. States Where Duty to Mitigate Is Imposed by Statute

A) Residential lease

Alaska

Arizona

California

Connecticut

Delaware

Hawaii

Illinois

Iowa

Kansas

Kentucky

Maine

Maryland

Missouri

Montana

Nebraska

Nevada

New Mexico

North Dakota

Oregon

Oklahoma

Rhode Island

South Carolina

Tennessee

Texas

Washington

Wisconsin

Alaska

Alaska Stat. § 34.03.230.(Michie 2001) Remedies for absence, nonuse and abandonment  

(a) When the rental agreement requires the tenant to give notice to the landlord of an anticipated extended absence in excess of seven days as required in AS 34.03.150 and the tenant wilfully fails to do so, the landlord may recover an amount not to exceed one and one-half times the actual damages.  

(b) During an absence of the tenant in excess of seven days, the landlord may enter the dwelling unit at times reasonably necessary as provided in AS 34.03.140. The landlord may reenter the dwelling unit and, if there is evidence that the tenant has abandoned the dwelling unit, unless the landlord and tenant have made a specific agreement to the contrary, the landlord may terminate the rental agreement.  

(c) If the tenant abandons the dwelling unit, the landlord shall make reasonable efforts to rent it at a fair rental value. If the landlord rents the dwelling unit for a term beginning before the expiration of the rental agreement, the agreement is considered terminated on the date the new tenancy begins. The rental agreement is considered terminated by the landlord on the date the landlord has notice of the abandonment if the landlord fails to use reasonable efforts to rent the dwelling unit at a fair rental value or if the landlord accepts the abandonment as a surrender. If the tenancy is from month to month, or week to week, the term of the rental agreement for purposes of this section shall be considered a month or a week, as the case may be.  

Arizona

Ariz. Rev. Stat. § 33-1370 (2000)  Abandonment; notice; remedies; personal property; definition  

A. If a dwelling unit is abandoned after the time prescribed in subsection H of this section, the landlord shall send the tenant a notice of abandonment by certified mail, return receipt requested, addressed to the tenant's last known address and to any of the tenant's alternate addresses known to the landlord. The landlord shall also post a notice of abandonment on the door to the dwelling unit or any other conspicuous place on the property for five days.  

B. Five days after notice of abandonment has been both posted and mailed, the landlord may retake the dwelling unit and rerent the dwelling unit at a fair rental value if no personal property remains in the dwelling unit. After the landlord retakes the dwelling unit, money held by the landlord as a security deposit is forfeited and shall be applied to the payment of any accrued rent and other reasonable costs incurred by the landlord by reason of the tenant's abandonment.  

C. If the tenant abandons the dwelling unit, the landlord shall make reasonable efforts to rent it at a fair rental. If the landlord rents the dwelling unit for a term beginning prior to the expiration of the rental agreement, it is deemed to be terminated as of the date the new tenancy begins. If the landlord fails to use reasonable efforts to rent the dwelling unit at a fair rental or if the landlord accepts the abandonment as a surrender, the rental agreement is deemed to be terminated by the landlord as of the date the landlord has notice of the abandonment. If the tenancy is from month to month or week to week, the term of the rental agreement for this purpose shall be deemed to be a month or a week, as the case may be.  

D. After the landlord has retaken possession of the dwelling unit, the landlord may store the tenant's personal possessions in the unoccupied dwelling unit that was abandoned by the tenant, in any other available unit or any storage space owned by the landlord or off the premises if a dwelling unit or storage space is not available. The landlord shall notify the tenant of the location of the personal property in the same manner prescribed in subsection A of this section.  

H. In this section "abandonment" means either the absence of the tenant from the dwelling unit, without notice to the landlord for at least seven days, if rent for the dwelling unit is outstanding and unpaid for ten days and there is no reasonable evidence other than the presence of the tenant's personal property that the tenant is occupying the residence or the absence of the tenant for at least five days, if the rent for the dwelling unit is outstanding and unpaid for five days and none of the tenant's personal property is in the dwelling unit.

California

Cal. Civ. Code § 1951.2 (2001)   Lessor's remedies upon breach by lessee; Indemnification  

(a) Except as otherwise provided in Section 1951.4, if a lessee of real property breaches the lease and abandons the property before the end of the term or if his right to possession is terminated by the lessor because of a breach of the lease, the lease terminates. Upon such termination, the lessor may recover from the lessee:

(1) The worth at the time of award of the unpaid rent which had been earned at time of termination;

(2) The worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that the lessee proves could have been reasonably avoided;

(3) Subject to subdivision (c), the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss that the lessee proves could be reasonably avoided; and

(4) Any other amount necessary to compensate the lessor for all the detriment proximately caused by the lessee's failure to perform his obligations under the lease or which in the ordinary course of things would be likely to result therefrom.

(b) The "worth at the time of award" of the amounts referred to in paragraphs (1) and (2) of subdivision (a) is computed by allowing interest at such lawful rate as may be specified in the lease or, if no such rate is specified in the lease, at the legal rate. The worth at the time of award of the amount referred to in paragraph (3) of subdivision (a) is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus 1 per cent.

(c) The lessor may recover damages under paragraph (3) of subdivision (a) only if:

(1) The lease provides that the damages he may recover include the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award, or for any shorter period of time specified in the lease, exceeds the amount of such rental loss for the same period that the lessee proves could be reasonably avoided; or

(2) The lessor relet the property prior to the time of award and proves that in reletting the property he acted reasonably and in a good-faith effort to mitigate the damages, but the recovery of damages under this paragraph is subject to any limitations specified in the lease.

(d) Efforts by the lessor to mitigate the damages caused by the lessee's breach of the lease do not waive the lessor's right to recover damages under this section.

(e) Nothing in this section affects the right of the lessor under a lease of real property to indemnification for liability arising prior to the termination of the lease for personal injuries or property damage where the lease provides for such indemnification.  

Note: however, the statute allows a landlord to continue the lease after a tenant's abandonment and to recover rent as it becomes due if the lease specifically provides for such a remedy. See Cal. Civ. Code § 1951.4.

Cal. Civ. Code § 1951.4

(a) The remedy described in this section is available only if the lease provides for this remedy. In addition to any other type of provision used in a lease to provide for the remedy described in this section, a provision in the lease in substantially the following form satisfies this subdivision: "The lessor has the remedy described in California Civil Code Section 1951.4 (lessor may continue lease in effect after lessee's breach and abandonment and recover rent as it becomes due, if lessee has right to sublet or assign, subject only to reasonable limitations)."

(b) Even though a lessee of real property has breached the lease and abandoned the property, the lease continues in effect for so long as the lessor does not terminate the lessee's right to possession, and the lessor may enforce all the lessor's rights and remedies under the lease, including the right to recover the rent as it becomes due under the lease, if any of the following conditions is satisfied:

(1) The lease permits the lessee, or does not prohibit or otherwise restrict the right of the lessee, to sublet the property, assign the lessee's interest in the lease, or both.

(2) The lease permits the lessee to sublet the property, assign the lessee's interest in the lease, or both, subject to express standards or conditions, provided the standards and conditions are reasonable at the time the lease is executed and the lessor does not require compliance with any standard or condition that has become unreasonable at the time the lessee seeks to sublet or assign. For purposes of this paragraph, an express standard or condition is presumed to be reasonable; this presumption is a presumption affecting the burden of proof.

(3) The lease permits the lessee to sublet the property, assign the lessee's interest in the lease, or both, with the consent of the lessor, and the lease provides that the consent shall not be unreasonably withheld or the lease includes a standard implied by law that consent shall not be unreasonably withheld.

(c) For the purposes of subdivision (b), the following do not constitute a termination of the lessee's right to possession:

(1) Acts of maintenance or preservation or efforts to relet the property.

(2) The appointment of a receiver upon initiative of the lessor to protect the lessor's interest under the lease.

(3) Withholding consent to a subletting or assignment, or terminating a subletting or assignment, if the withholding or termination does not violate the rights of the lessee specified in subdivision (b).

Connecticut

Conn. Gen. Stat. § 47a-11a (2001)  Abandonment of unit by tenant.  

(a) If the tenant abandons the dwelling unit, the landlord shall make reasonable efforts to rent it at a fair rental in mitigation of damages.  

(b) If the landlord fails to use reasonable efforts to rent the dwelling unit at a fair rental, the rental agreement is deemed to be terminated by the landlord as of the date the landlord has notice of the abandonment.  

Delaware

Del. Code. Ann. tit. 25, § 5507 (2000) Landlord remedies for absence or abandonment  

(d) If the tenant wrongfully quits the rental unit and unequivocally indicates by words or deeds the tenant's intention not to resume tenancy, such action by the tenant shall entitle the landlord to proceed as specified elsewhere in this chapter and the tenant shall be liable for the lesser of the following for such abandonment:  

(1) The entire rent due for the remainder of the term and expenses for actual damages caused by the tenant (other than normal wear and tear) which are incurred in preparing the rental unit for a new tenant; or  

(2) All rent accrued during the period reasonably necessary to re-rent the premises at a fair rental; plus the difference between such fair rental and the rent agreed to in the prior rental agreement; plus expenses incurred to re-rent; repair damage caused by the tenant (beyond normal wear and tear); plus a reasonable commission, if incurred by the landlord for the re-renting of the premises. In any event, the landlord has a duty to mitigate damages.

Hawaii

Haw. Rev. Stat. § 521-70 (2000) Landlord's remedies for absence, misuse, abandonment and failure to honor tenancy before occupancy

. . .

(d) If the tenant wrongfully quits the dwelling unit and unequivocally indicates by words or deeds the tenant's intention not to resume the tenancy, the tenant shall be liable to the landlord for the lesser of the following amounts for such abandonment:  

(1) The entire rent due for the remainder of the term; or  

(2) All rent accrued during the period reasonably necessary to rerent the dwelling unit at the fair rental, plus the difference between such fair rent and the rent agreed to in the prior rental agreement and a reasonable commission for the renting of the dwelling unit. This paragraph applies if the amount calculated hereunder is less than the amount calculated under paragraph (1) whether or not the landlord rerents the dwelling unit.  

(e) If the tenant unequivocally indicates by words or deed the tenant's intention not to honor the tenancy before occupancy, the tenant shall be liable to the landlord for the lesser of the following amounts:  

(1) All monies deposited with the landlord;  

(2) One month's rent at the rate agreed upon in the rental agreement;  

(3) All rent accrued from the agreed date for the commencement of the tenancy until the dwelling unit is rerented at the fair rental, plus the difference between such fair rent and the rent agreed to in the prior rental agreement, plus reasonable costs, and a reasonable commission for rerenting of the dwelling unit. This paragraph applies if the amount calculated hereunder is less than the amounts calculated under paragraphs (1) or (2), whether or not the landlord rerents the dwelling unit.  

Illinois

735 Ill. Comp. Stat. 5/9-213.1 (2001)  Duty of landlord to mitigate damages  

After January 1, 1984, a landlord or his or her agent shall take reasonable measures to mitigate the damages recoverable against a defaulting lessee.  

Iowa

Iowa Code § 562A.29 (2001)  

562A.29 Remedies for absence, nonuse and abandonment.  

1. If the rental agreement requires the tenant to give notice to the landlord of an anticipated extended absence as provided in section 562A.20, and the tenant willfully fails to do so, the landlord may recover actual damages from the tenant.  

2. During an absence of the tenant in excess of fourteen days, the landlord may enter the dwelling unit at times reasonably necessary.  

3. If the tenant abandons the dwelling unit, the landlord shall make reasonable efforts to rent it at a fair rental. If the landlord rents the dwelling unit for a term beginning prior to the expiration of the rental agreement, it is deemed to be terminated as of the date the new tenancy begins. The rental agreement is deemed to be terminated by the landlord as of the date the landlord has notice of the abandonment, if the landlord fails to use reasonable efforts to rent the dwelling unit at a fair rental or if the landlord accepts the abandonment as a surrender. If the tenancy is from month-to-month, or week-to-week, the term of the rental agreement for this purpose shall be deemed to be a month or a week, as the case may be.  

Kansas

Kan. Stat. Ann. § 58-2565(c)

58-2565. Extended absence of tenant; damages; entry by landlord; abandonment by tenant, when; reasonable effort to rent required; termination of rental agreement, when; personal property of tenant; disposition, procedure; proceeds; rights of person receiving property.  

(c) If the tenant abandons the dwelling unit, the landlord shall make reasonable efforts to rent it at a fair rental. If the landlord rents the dwelling unit for a term beginning prior to the expiration of the rental agreement, it is deemed to be terminated as of the date the new tenancy begins. The rental agreement is deemed to be terminated by the landlord as of the date the landlord has notice of the abandonment, if the landlord fails to use reasonable efforts to rent the dwelling unit at a fair rental or if the landlord accepts the abandonment as a surrender. If the tenancy is from month-to-month, or week-to-week, the term of the rental agreement for this purpose shall be deemed to be a month or a week, as the case may be.  

Kentucky

Ky. Rev. Stat. Ann. § 383.670. Remedies for absence, nonuse and abandonment  

(1) If the rental agreement requires the tenant to give notice to the landlord of an anticipated extended absence in excess of seven (7) days as required in KRS 383.620 and the tenant willfully fails to do so, the landlord may recover actual damages from the tenant.  

(3) If the tenant abandons the dwelling unit, the landlord shall make reasonable efforts to rent it at a fair rental. If the landlord rents the dwelling unit for a term beginning before the expiration of the rental agreement, it terminates as of the date of the new tenancy. If the landlord fails to use reasonable efforts to rent the dwelling unit at a fair rental or if the landlord accepts the abandonment as a surrender, the rental agreement is deemed to be terminated by the landlord as of the date the landlord has notice of the abandonment. If the tenancy is from month-to-month or week-to-week, the term of the rental agreement for this purpose is deemed to be a month or a week, as the case may be.   

Maine

Me. Rev. Stat. Ann. tit. 14, § 6010-A. Landlord's duty to mitigate  

1. SCOPE OF SECTION. If a tenant unjustifiably moves from the premises prior to the effective date for termination of his tenancy and defaults in payment of rent, or if the tenant is removed for failure to pay rent or any other breach of a lease, the landlord may recover rent and damages except amounts which he could mitigate in accordance with this section, unless he has expressly agreed to accept a surrender of the premises and end the tenant's liability. Except as the context may indicate otherwise, this section applies to the liability of a tenant under a lease, a periodic tenant or an assignee of either.

2. MEASURE OF RECOVERY. In any claim against a tenant for rent and damages, or for either, the amount of recovery shall be reduced by the net rent obtainable by reasonable efforts to rerent the premises. " Reasonable efforts " means those steps which the landlord would have taken to rent the premises if they had been vacated in due course, provided that those steps are in accordance with local rental practice for similar properties. In the absence of proof that greater net rent is obtainable by reasonable efforts to rerent the premises, the tenant shall be credited with rent actually received under a rerental agreement minus expenses incurred as a reasonable incident of acts under subsection 4, including a fair proportion of any cost of remodeling or other capital improvements. In any case, the landlord may recover, in addition to rent and other elements of damage, all reasonable expenses of listing and advertising incurred in rerenting and attempting to rerent, except as taken into account in computing the net rent. If the landlord has used the premises as part of reasonable efforts to rerent, under subsection 4, paragraph C, the tenant shall be credited with the reasonable value of the use of the premises, which shall be presumed to be equal to the rent recoverable from the defendant unless the landlord proves otherwise. If the landlord has other similar premises for rent and receives an offer from a prospective tenant not obtained by the defendant, it shall be reasonable for the landlord to rent the other premises for his own account in preference to those vacated by the defaulting tenant.

3. BURDEN OF PROOF. The landlord must allege and prove that he has made efforts to comply with this section. The tenant has the burden of proving that the efforts of the landlord were not reasonable, that the landlord's refusal of any offer to rent the premises or a part of the premises was not reasonable, that any terms and conditions upon which the landlord has in fact rerented were not reasonable and that any temporary use by the landlord was not part of reasonable efforts to mitigate in accordance with subsection 4, paragraph C. The tenant shall also have the burden of proving the amount that could have been obtained by reasonable efforts to mitigate by rerenting.

4. ACTS PRIVILEGED IN MITIGATION OF RENT OR DAMAGES. The following acts by the landlord shall not defeat his right to recover rent and damages and shall not constitute an acceptance of surrender of the premises:

A. Entry, with or without notice, for the purpose of inspecting, preserving, repairing, remodeling and showing the premises;

B. Rerenting the premises or a part of the premises, with or without notice, with rent applied against the damages caused by the original tenant and in reduction of rent accruing under the original lease;

C. Use of the premises by the landlord until such time as rerenting at a reasonable rent is practical, not to exceed one year, if the landlord gives prompt written notice to the tenant that the landlord is using the premises pursuant to this section and that he will credit the tenant with the reasonable value of the use of the premises to the landlord for such a period; and

D. Any other act which is reasonably subject to interpretation as being in mitigation of rent or damages and which does not unequivocally demonstrate an intent to release the defaulting tenant.   

Maryland:

Md. Code Ann., Real Prop. § 8-207  

Sec. 8-207. Duty of aggrieved party to mitigate damages on breach of lease; secondary liability of tenant for rent  

(a) Duty to mitigate damages. -- The aggrieved party in a breach of a lease has a duty to mitigate damages if the damages result from the landlord's or tenant's:  

(1) Failure to supply possession of the dwelling unit;  

(2) Failure or refusal to take possession at the beginning of the term; or  

(3) Termination of occupancy before the end of the term.  

(b) No obligation to lease vacated unit in preference to others. -- The provisions of subsection (a) do not impose an obligation to show or lease, the vacated dwelling unit in preference to other available units.  

(c) Sublease of unit where tenant does not take possession or vacates. -- If a tenant wrongly fails or refuses to take possession of or vacates the dwelling unit before the end of the tenant's term, the landlord may sublet the dwelling unit without prior notice to the tenant in default. The tenant in default is secondarily liable for rent for the term of the tenant's original agreement in addition to the tenant's liability for consequential damages resulting from the tenant's breach, if the landlord gives the tenant prompt notice of any default by the sublessee.  

(d) Waiver prohibited. -- No provision in this section may be waived in any lease.  

Missouri:

Mo. Rev. Stat. § 535.300

1. A landlord may not demand or receive a security deposit in excess of two months' rent.

2. Within thirty days after the date of termination of the tenancy, the landlord shall:

(1) Return the full amount of the security deposit; or

(2) Furnish to the tenant a written itemized list of the damages for which the security deposit or any portion thereof is withheld, along with the balance of the security deposit. The landlord shall have complied with this subsection by mailing such statement and any payment to the last known address of the tenant.

3. The landlord may withhold from the security deposit only such amounts as are reasonably necessary for the following reasons:

(1) To remedy a tenant's default in the payment of rent due to the landlord, pursuant to the rental agreement;

(2) To restore the dwelling unit to its condition at the commencement of the tenancy, ordinary wear and tear excepted; or

(3) To compensate the landlord for actual damages sustained as a result of the tenant's failure to give adequate notice to terminate the tenancy pursuant to law or the rental agreement; provided that the landlord makes reasonable efforts to mitigate damages.

. . .

Note: this is the security deposit statute only. As indicated below, outside of this context, Missouri common law suggests that there is not a duty to mitigate upon abandonment.

Montana

Mont. Code Ann. § 70-24-426 (2000)   Remedies for absence or abandonment.  

(1) If the rental agreement requires the tenant to give notice to the landlord of an anticipated extended absence in excess of 7 days, as provided for in 70-24-322, and the tenant fails to do so, the landlord may recover actual damages from the tenant.  

(3) If the tenant abandons the dwelling unit, the landlord shall make reasonable efforts to rent it at a fair rental. If the landlord rents the dwelling unit for a term beginning before the expiration of the rental agreement, the rental agreement terminates as of the date of the tenancy. If the landlord fails to use reasonable efforts to rent the dwelling unit at a fair rental or if the landlord accepts the abandonment as a surrender, the rental agreement is terminated by the landlord as of the date the landlord has notice of the abandonment. If the tenancy is from month to month or week to week, the term of the rental agreement for this purpose is a month or a week, as the case may be.  

Nebraska

Neb. Rev. Stat. § 76-1432 (2001)  Remedies for absence, nonuse, and abandonment  

(1) If the rental agreement requires the tenant to give notice to the landlord of an anticipated extended absence in excess of seven days as required in section 76-1424 and the tenant willfully fails to do so, the landlord may recover actual damages from the tenant.  

(3) If the tenant abandons the dwelling unit, the landlord shall take immediate possession and shall make reasonable efforts to rent it at a fair rental. If the landlord rents the dwelling unit for a term beginning prior to the expiration of the rental agreement, it is deemed to be terminated as of the date the new tenancy begins. Total absence from the premises without notice to landlord for one full rental period or thirty days, whichever is less, shall constitute abandonment.  

Nevada

Nev. Rev. Stat. Ann. § 118.175 (2001)  Liability of tenant  

If a tenant of real property abandons the property, the landlord shall make reasonable efforts to rent it at a fair rental. If the landlord rents the property for a term beginning before the expiration of the rental agreement pursuant to its terms or if, despite his reasonable efforts, the landlord is unable to rent the property before the rental agreement is otherwise terminated, the former tenant is liable for any actual damages of the landlord which may result from the abandonment. If the landlord fails to make reasonable efforts to rent the property at a fair rental, the former tenant is liable for any actual damages of the landlord occurring before the landlord had reason to believe that the property was abandoned. If the tenancy is from month to month or week to week, the term of the rental agreement for this purpose is deemed to be a month or a week, as the case may be.  

New Mexico

N.M. Stat. Ann. § 47-8-6 (2000) Recovery of damages  

A. The remedies provided by the Uniform Owner-Resident Relations Act [47-8-1 to 47-8-51 NMSA 1978] shall be so administered that the aggrieved party may recover damages as provided in the Uniform Owner-Resident Relations Act. The aggrieved party has a duty to mitigate damages.  

B. Any right or obligation declared by the Uniform Owner-Resident Relations Act is enforceable by action unless the provision declaring it specifies a different and limited effect.

Note: Although New Mexico has adopted the major provisions of the Uniform Residential Landlord Tenant Act, the statute merely state that "the aggrieved party has a duty to mitigate damages."  

North Dakota

N.D. Cent. Code § 47-16-13.5 (2000)  Mitigation of damages  

Any party aggrieved under sections 47-16-13.1 through 47-16-13.6 may recover appropriate damages. However, the aggrieved party has a duty to mitigate damages.  

Oklahoma

Okla. Stat. tit. 41, § 129 (2000)  Tenant's breach of rental agreement--Wrongful abandonment  

A. Unless otherwise agreed, use by the tenant of the dwelling unit for any purpose other than as his place of abode shall constitute a breach of the rental agreement and shall be grounds for terminating the rental agreement.

B. If the tenant wrongfully quits and abandons the dwelling unit during the term of the tenancy, the landlord shall make reasonable efforts to make the dwelling unit available for rental. If the landlord rents the dwelling unit for a term beginning before the expiration of the rental agreement, said rental agreement terminates as of the commencement date of the new tenancy. If the landlord fails to use reasonable efforts to make the dwelling unit available for rental or if the landlord accepts the abandonment as a surrender, the rental agreement is deemed to be terminated by the landlord as of the date the landlord has notice of the abandonment. If, after making reasonable efforts to make the dwelling unit available for rental after the abandonment, the landlord fails to rerent the premises for a fair rental during the term, the tenant shall be liable for the entire rent or the difference in rental, whichever may be appropriate, for the remainder of the term. If the tenancy is from month-to-month or week-to-week, the term of the rental agreement for this purpose is deemed to be a month or a week, as the case may be.

Oregon

Or. Rev. Stat. § 90.410 (1999) Effect of tenant failure to give notice of absence; absence; abandonment.  

(1) If the rental agreement requires the tenant to give actual notice to the landlord of an anticipated extended absence in excess of seven days as permitted by ORS 90.340 and the tenant willfully fails to do so, the landlord may recover actual damages from the tenant.  

***

(3) If the tenant abandons the dwelling unit, the landlord shall make reasonable efforts to rent it for a fair rental. If the landlord rents the dwelling unit for a term beginning before the expiration of the rental agreement, the rental agreement terminates as of the date of the new tenancy. If the landlord fails to use reasonable efforts to rent the dwelling unit at a fair rental or if the landlord accepts the abandonment as a surrender, the rental agreement is deemed to be terminated by the landlord as of the date the landlord knows or should know of the abandonment. If the tenancy is from month to month or week to week, the term of the rental agreement for this purpose is deemed to be a month or a week, as the case may be.  

Rhode Island

R.I. Gen. Laws § 34-18-40 (2001) Remedies for abandonment  

If the tenant abandons the dwelling unit, the landlord shall send a certified letter, return receipt requested, to the tenant's last known address giving notice that unless a reply is received from the tenant within seven (7) days, the landlord shall re-rent the premises. If the notice is returned as undeliverable, or the tenant fails to contact the landlord within seven (7) days, the landlord shall make reasonable efforts to rent the premises at a fair rental. If the landlord rents the dwelling unit for a term beginning before the expiration of the rental agreement, the tenancy terminates as of the date of the new tenancy. If the landlord fails to use reasonable efforts to rent the dwelling unit at fair rental, or if the landlord accepts the abandonment as a surrender, the rental agreement is deemed to be terminated by the landlord as of the date the landlord has notice of the abandonment.  

South Carolina

S.C. Code Ann. § 27-40-730 (2000)  Remedies for absence, nonuse, and abandonment.  

(a) The unexplained absence of a tenant from a dwelling unit for a period of fifteen days after default in the payment of rent must be construed as abandonment of the dwelling unit.

***

(c) If the tenant abandons the dwelling unit, the landlord shall make reasonable efforts to rent it at a fair rental. If the landlord rents the dwelling unit for a term beginning before the expiration of the rental agreement, it terminates as of the date of the new tenancy, subject to the landlord's remedies under Section 27-40-740. If the landlord fails to use reasonable efforts to rent the dwelling unit at a fair rental or if the landlord accepts the abandonment as a surrender, the rental agreement is considered to be terminated by the landlord as of the date the landlord has notice of the abandonment. If the tenancy is from month to month or week to week, the term of the rental agreement for this purpose is considered to be a month or a week, as the case may be.  

Tennessee

Tenn. Code Ann. § 66-28-507 (2001) Absence, nonuse or abandonment by tenant  

(a) If the rental agreement requires the tenant to give notice to the landlord of an anticipated extended absence in excess of seven (7) days as required in Sec. 66-28-404 and the tenant willfully fails to do so, the landlord may recover actual damages from the tenant.  

***

(c) If the tenant abandons the dwelling unit, the landlord shall use reasonable efforts to rerent the dwelling unit at a fair rental. If the landlord rents the dwelling unit for a term beginning prior to the expiration of the rental agreement, the rental agreement is terminated as of the date of the new tenancy. If the tenancy is from month-to-month, or week-to-week, the term of the rental agreement for this purpose shall be deemed to be a month or a week, as the case may be.

Note: this provision only applies to certain counties. Tennessee included a non-standard provision when it adopted URLTA, and only counties with certain populations are covered under the statute. For counties that are not covered, common law continues to apply.

Texas:

Tex. Prop. Code Ann. § 91.006 (2000)   Landlord's Duty Mitigate Damages  

(a) A landlord has a duty to mitigate damages if a tenant abandons the leased premises in violation of the lease.

(b) A provision of a lease that purports to waive a right or to exempt a landlord from a liability or duty under this section is void.

Note: section 91.006 of the Texas Property Code only applies to leases entered on or after the effective date of section 91.006. In Texas, prior to the 1997 amendment to the Texas Property Code, the Texas Supreme Court held in Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc., 948 S.W.2d 293 (Texas 1997) that a landlord had a duty under common law to mitigate damages upon tenant breach and abandonment.

Washington

Wash. Rev. Code § 59.18.310 (2001)  Default in rent -- Abandonment -- Liability of tenant -- Landlord's remedies -- Sale of tenant's property by landlord  

If the tenant defaults in the payment of rent and reasonably indicates by words or actions the intention not to resume tenancy, the tenant shall be liable for the following for such abandonment: PROVIDED, That upon learning of such abandonment of the premises the landlord shall make a reasonable effort to mitigate the damages resulting from such abandonment:  

(1) When the tenancy is month-to-month, the tenant shall be liable for the rent for the thirty days following either the date the landlord learns of the abandonment, or the date the next regular rental payment would have become due, whichever first occurs.  

(2) When the tenancy is for a term greater than month-to-month, the tenant shall be liable for the lesser of the following:  

(a) The entire rent due for the remainder of the term; or  

(b) All rent accrued during the period reasonably necessary to rerent the premises at a fair rental, plus the difference between such fair rental and the rent agreed to in the prior agreement, plus actual costs incurred by the landlord in rerenting the premises together with statutory court costs and reasonable attorney's fees.

Wisconsin

Wis. Stat. § 704.29 (2000)   Recovery of rent and damages by landlord; mitigation.  

(1) SCOPE OF SECTION. If a tenant unjustifiably removes from the premises prior to the effective date for termination of the tenants tenancy and defaults in payment of rent, or if the tenant is removed for failure to pay rent or any other breach of a lease, the landlord can recover rent and damages except amounts which the landlord could mitigate in accordance with this section, unless the landlord has expressly agreed to accept a surrender of the premises and end the tenants liability. Except as the context may indicate otherwise, this section applies to the liability of a tenant under a lease, a periodic tenant, or an assignee of either.  

(2) MEASURE OF RECOVERY.  

(a) In this subsection, "reasonable efforts" mean those steps that the landlord would have taken to rent the premises if they had been vacated in due course, provided that those steps are in accordance with local rental practice for similar properties.  

(b) In any claim against a tenant for rent and damages, or for either, the amount of recovery is reduced by the net rent obtainable by reasonable efforts to rerent the premises. In the absence of proof that greater net rent is obtainable by reasonable efforts to rerent the premises, the tenant is credited with rent actually received under a rerental agreement minus expenses incurred as a reasonable incident of acts under sub. (4), including a fair proportion of any cost of remodeling or other capital improvements. In any case the landlord can recover, in addition to rent and other elements of damage, all reasonable expenses of listing and advertising incurred in rerenting and attempting to rerent, except as taken into account in computing the net rent under the preceding sentence. If the landlord has used the premises as part of reasonable efforts to rerent, under sub. (4) (c), the tenant is credited with the reasonable value of the use of the premises, which is presumed to be equal to the rent recoverable from the defendant unless the landlord proves otherwise. If the landlord has other similar premises for rent and receives an offer from a prospective tenant not obtained by the defendant, it is reasonable for the landlord to rent the other premises for the landlords own account in preference to those vacated by the defaulting tenant.  

(3) BURDEN OF PROOF. The landlord must allege and prove that the landlord has made efforts to comply with this section. The tenant has the burden of proving that the efforts of the landlord were not reasonable, that the landlords refusal of any offer to rent the premises or a part thereof was not reasonable, that any terms and conditions upon which the landlord has in fact rerented were not reasonable, and that any temporary use by the landlord was not part of reasonable efforts to mitigate in accordance with sub. (4) (c); the tenant also has the burden of proving the amount that could have been obtained by reasonable efforts to mitigate by rerenting.  

(4) ACTS PRIVILEGED IN MITIGATION OF RENT OR DAMAGES. The following acts by the landlord do not defeat the landlords right to recover rent and damages and do not constitute an acceptance of surrender of the premises:  

(a) Entry, with or without notice, for the purpose of inspecting, preserving, repairing, remodeling and showing the premises;  

(b) Rerenting the premises or a part thereof, with or without notice, with rent applied against the damages caused by the original tenant and in reduction of rent accruing under the original lease;  

(c) Use of the premises by the landlord until such time as rerenting at a reasonable rent is practical, not to exceed one year, if the landlord gives prompt written notice to the tenant that the landlord is using the premises pursuant to this section and that the landlord will credit the tenant with the reasonable value of the use of the premises to the landlord for such a period;  

(d) Any other act which is reasonably subject to interpretation as being in mitigation of rent or damages and which does not unequivocally demonstrate an intent to release the defaulting tenant.   

B) Residential Lease

California

Illinois

Nevada

North Dakota

Texas

Wisconsin

California

Cal Civ Code Sec. 1951.2 (2001) 

Illinois

735 ILCS 5/9-213.1 (2001) 

Nevada

Nev. Rev. Stat. Ann. Sec. 118.175 (2001) 

North Dakota

N.D. Cent. Code, Sec. 47-16-13.5 (2000) 

Texas

Tex. Prop. Code Sec. 91.006 (2000) 

Wisconsin

Wis. Stat. Sec.704.29 (2000). 

(See A) Residential lease for text of the statutes)

Table 2: States Where Duty to Mitigate Is Recoganized in Common-law Decision

A) Residential lease

New Jersey

North Carolina

Wyoming

Utah

New Jersey

Sommer v. Kridel, 378 A.2d 767 (N.J. 1977). The court stated:  

We granted certification in these cases to consider whether a landlord seeking damages from a defaulting tenant is under a duty to mitigate damages by making reasonable efforts to re-let an apartment wrongfully vacated by the tenant. Separate parts of the Appellate Division held that, in accordance with their respective leases, the landlords in both cases could recover rents due under the leases regardless of whether they had attempted to re-let the vacated apartments. we now reverse and hold that a landlord does have an obligation to make a reasonable effort to mitigate damages in such a situation. We therefore overrule Joyce v. Bauman to the extent that it is inconsistent with our decision today.

North Carolina:

In Weinstein v. Griffin, 84 S.E.2d 549 (N.C. 1954), the court stated:

While liquidated damages, if in the nature of a penalty, are not favored (Crawford v. Allen, 189 N.C. 434, 127 S.E. 521), the liquidated damages fixed in the contract are not less favorable to the defendants than the rule of law would impose in the absence of any provision for liquidated damages. The rule fixed in the lease gives the defendants credit for the reasonable rental value from the date of the breach. The law, in the absence of Section 10 of the lease, would require only that the plaintiffs exercise reasonable diligence to relet the property and thus minimize the defendants' loss. After due diligence the plaintiff might not be able to relet immediately or they might not be able to find a tenant who would pay the reasonable rental value for the remaining part of the term, in which event the defendants would get no credit at all. In no wise could the liquidated damages fixed in the lease be considered unreasonable or oppressive, or "arbitrarily adopted without reference to the loss actually suffered and liable to arise in case of breach." Horn v. Poindexter, 176 N.C. 620, 97 S.E. 653.  

Note: Section 10 of the lease provides for liquidated damages in case of breach 

In Isbey v. Crews, 284 S.E.2d 534, 537 (N.C. Ct. App. 1981), the court stated:

With respect to the question of mitigation of damages, the law in North Carolina is that the nonbreaching party to a lease contract has a duty to mitigate his damages upon breach of such contract.

Utah :

Utah has passed a statute concerning mitigation, the statute provides that when a tenant abandons property, "the owner may retake the premises and attempt to rent them at a fair rental value . . . "  

§ 78-36-12.6. Abandoned premises -- Retaking and rerenting by owner -- Liability of tenant -- Personal property of tenant left on premises  

(1) In the event of abandonment, the owner may retake the premises and attempt to rent them at a fair rental value and the tenant who abandoned the premises shall be liable:  

(a) for the entire rent due for the remainder of the term; or  

(b) for rent accrued during the period necessary to rerent the premises at a fair rental value, plus the difference between the fair rental value and the rent agreed to in the prior rental agreement, plus a reasonable commission for the renting of the premises and the costs, if any, necessary to restore the rental unit to its condition when rented by the tenant less normal wear and tear. This subsection applies, if less than Subsection (a), notwithstanding that the owner did not rerent the premises.  

***

(d) Nothing contained in this act shall be in derogation of or alter the owner's rights under Title 38, Chapter 3, Lessors' Liens.  

With regard to the effect of the statute, in Reid v. Mutual of Omaha Ins. Co., 776 P.2d 896 (Utah 1989), the court stated: 

We are thus faced with the question of whether Utah law imposes a duty upon landlords to mitigate their damages by reletting premises after a tenant has wrongfully vacated and defaulted on the covenant to pay rent. There is no controlling statute, n7 and our research has revealed no case in which we have directly addressed the question. See Survey of Utah Law, 1965 Utah L. Rev. 770, 771. However, the concept of landlords mitigating their damages by reletting has been mentioned in several cases where the doctrine of surrender and acceptance was at issue. n8 In those cases, the Court spoke favorably of, at a minimum, allowing landlords to mitigate by reletting without the risk that such mitigation efforts would be treated as an acceptance of surrender. See, e.g., Meyer v. Evans, 16 Utah 2d 56, 57, 395 P.2d 726, 727 (1964); John C. Cutler Ass'n, 3 Utah 2d at 111, 279 P.2d at 702; Belanger v. Rice, 2 Utah 2d at 252, 272 P.2d at 174Sec

. . .

In sum, the principal justifications given to support the traditional rule are to a large extent anachronistic. In contrast, we find persuasive the reasons advanced in support of the trend rule requiring the landlord to take steps to mitigate its losses. For example, the economies of both the state and the nation benefit from a rule that encourages the reletting of premises, which returns them to productive use, rather than permitting a landlord to let them sit idle while it seeks rents from the breaching tenant. See Schneiker v. Gordon, 732 P.2d at 610; Illinois Landlords' Duty, 34 DePaul L. Rev. at 1033, 1040, 1064; and Beckman, Duty of Commercial Landlords to Mitigate: Some Thoughts on Darpar Associates, 55 Conn. B.J. 339, 345 (1981).  

. . .

Footnote 7: n7 Although the parties to this appeal did not bring it to this Court's attention, there is a section of the Utah Code that provides some legislative guidance as to how the question of a mitigation obligation might be answered in a different setting. Section 78-36-12.6, which is part of the forcible entry and detainer chapter of the Code, provides in relevant part:

(1) In the event of abandonment the owner may retake the premises and attempt to rent them at a fair rental value and the tenant who abandoned the premises shall be liable:

(a) for the entire rent due for the remainder of the term; or

(b) for rent accrued during the period necessary to re-rent the premises at a fair rental value, plus the difference between the fair rental value and the rent agreed to in the prior rental agreement, plus a reasonable commission for the renting of the premises and the costs, if any, necessary to restore the rental unit to its condition when rented by the tenant less normal wear and tear. This subsection applies, if less than Subsection (a) notwithstanding that the owner did not re-rent the premises.

Utah Code Ann. Sec. 78-36-12.6 (1987). See generally Backman, Landlord-Tenant Law--A Perspective on Reform in Utah, 1981 Utah L. Rev. 727, 738-39.  

We have never decided whether this language imposes an affirmative obligation to mitigate by reletting, as might well be argued. Our decision in the present case is not controlled by section 78-36-12.6 because we have previously construed it to apply only when the tenant has "abandoned" the premises without giving notice. See Fashion Place Assocs. v. Glad Rags, Inc., 754 P.2d 940, 941 (Utah 1988); Utah Code Ann. Sec.Sec. 78-36-12.3(3), -12.6 (1987). Here, Mutual gave notice to the Reids when it vacated and thus did not "abandon" the premises within the meaning of the statute.

This case involved a commercial lease, but this is no reason to conclude that the Utah courts would treat residential landlords any differently. Consequently, it appears that there is a duty to mitigate in Utah, but there is some uncertainty as to whether it arises by statute or by common law.  

Wyoming

System Terminal Corp. v. Cornelison, 364 P.2d 91 (Wyo. 1961):

Since there was an apparent breach of the lease by the lessee and a leaving of the premises without someone in attendance, which situation required the landlord to make a reasonable effort to mitigate damages which might arise therefrom. Weinsklar Realty Co. v. Dooley, 200 Wis. 412, 228 N.W. 515, 67 A.L.R. 875; Burkhalter v. Townsend, 139 S.C. 324, 138 S.E. 34; 51 C.J.S. Landlord and Tenant Sec. 250, p. 888.

Goodwin v. Upper Crust, Inc., 624 P.2d 1192,1196 (Wyo. 1981): 

Appellants next assert that if a valid sublease existed between the parties, then appellees had a duty to mitigate their damages when appellants vacated the premises. Appellees have obliquely, at least for the purposes of this case, admitted the validity of this proposition, but have contended that appellants failed to establish that there was not an attempt to mitigate. To support their position, appellees cited Sturgeon v. Phifer,, 390 P.2d 72 Wyo.1964 7, where this court acknowledged:

" In Truck Terminal, Inc. v. Nielsen, 80 Wyo. 223, 339 P.2d 413, 419; and Bader v. Mills & Baker Co., 28 Wyo. 191, 201 P. 1012, 1014, our court followed the rule that the party who commits a wrong has the burden of proof in establishing matters asserted by him in mitigation or in reduction of damages. 390 P.2d at 731."  

B) commercial lease

Alaska

Arizona

California

Colorado

Hawaii

Idaho

Indiana

Iowa

Kansas

Louisiana

Michigan

Nebraska

New Jersey

North Carolina

Ohio

Oregon

Rhode island

Tennessee

Utah

Vermont

Washington

Wyoming

Alaska :

Winn v. Mannhalter, 708 P.2d 444 (Alaska 1985), indicating duty exists in a commercial lease case 

Arizona: ]

Tempe Corp. Office Bldg. v. Arizona Funding Servs., 807 P.2d 1130 (Ariz. Ct. App. 1991); Dushoff v. Phoenix Co., 528 P.2d 637 (Ariz.App. 1974).

California

Polster, Inc. v. Swing, 210 Cal. Rptr. 567 (Ct. App. 1985); Sanders Constr. Co. v. San Joaquin First Fed. Sav. & Loan Ass'n, 186 Cal. Rptr. 218 (Ct. App. 1982).  

Colorado

Schneiker v. Gordon, 732 P.2d 603 (Colo. 1987); Pomeranz v. McDonald's Corporation, 821 P.2d 843 (Colo. App. 1991), aff'd 843 P.2d 1378 (Colo. 1993).

Hawaii

Marco Kona Warehouse v. Sharmilo, Inc., 768 P.2d 247 (Haw. Ct. App. 1989). 

Idaho

Consolidated AG of Curry, Inc. v. Rangen, Inc. , 912 P.2d 115 (Idaho, 1996). 

Indiana

Hirsch v. Merchants Nat'l Bank and Trust Co., 336 N.E.2d 833 (Ind. Ct. App. 1975) 

Iowa

J.M. Grimstad, Inc. v. Scangraphics, Inc., 539 N.W.2d 732 (Iowa Ct. App. 1995); Harmsen v. Dr. MacDonald's, Inc., 403 N.W.2d 48 (Iowa Ct. App. 1987).  

Kansas

Wichita Properties v. Lanterman, 633 P.2d 1154 (Kan.App. 1981); Lindsley v. Forum Restaurants, Inc., 596 P.2d 1250 (Kan. Ct. App. 1979).

Louisiana

Shank-Jewella v. Diamond Gallery, 535 So.2d 1207 (La. Ct. App. 1988). (indicating that landlord has a duty to mitigate in a commercial lease case). As in the case of a residential lease, the Louisiana Supreme Court has not decided on this issue. 

Michigan:

Michigan Supreme court has refused to decide whether a duty to mitigate exists, but holding that the court's decision in another case implied that the court could require the landlord to mitigate damages, see Froling v. Bischoff, 252 N.W.2d 832. (Mich.App. 1977); M & V Barocas v. THC, Inc., 549 N.W.2d 86 (Mich.App. 1996). But lower courts have imposed duty on landlord and have not expressly distinguished between commercial and residential leases. See Jefferson Dev. Co. v. Heritage Cleaners, 311 N.W.2d 426 (Mich. Ct. App. 1980).

Nebraska

Bachman v. Easy Parking of America, Inc., 562 N.W.2d 369 (Neb. 1997); Properties Inv. Group v. JBA, Inc., 495 N.W.2d 624 (Neb. 1993); 

New Jersey

McGuire v. City of Jersey City, 593 A.2d 309 (N.J. 1991) ; Fanarjian v. Moskowitz, 568 A.2d 94 (N.J. Super. Ct. App. Div. 1989).  

North Carolina

Monger v. Lutterhoh, 142 S.E. 12 (N.C. 1928); Isbey v. Crews, 284 S.E.2d 534 (N.E.App. 1981). 

Ohio:

As in the case of residential leases, the Ohio Supreme court has not ruled on landlord=s duty in commercial lease either. However, the weight of opinion in the lower courts is to impose the duty in commercial lease, absent contract, see New Towne L.P. v. Pier 1 Imports (U.S.), Inc. 680 N.E.2d 644 (Ohio App. 6 Dist. 1996); Master Lease, Inc. v. Andrews, 485 N.E.2d 820 (Ohio Ct. App. 1984).

Oregon: Kulm v. Coast-to-Coast Stores, 432 P.2d 1006 (Or. 1967) 

Rhode Island: Tomaino v. Concord Oil, Inc., 709 A.2d 1016 (R.I. 1998). 

Tennessee: Jaffe v. Bolton, 817 S.W.2d 19 (Tenn. Ct. App. 1991); Nashland Assoc. v. Shumate, 730 S.W.2d 332 (Tenn. Ct. App. 1987).  

Utah: Reid v. Mutual of Omaha Ins. Co., 776 P.2d 896 (Utah 1989).

Vermont: O'Brien v. Black, 648 A.2d 1374 (Vt.1994).

Washington: Hargis v. Mel-Mad Corp., 730 P.2d 76 (Wash. Ct. App. 1986). 

Wyoming: Goodwin v. Upper Crust of Wyoming, Inc., 624 P.2d 1192 (Wyo. 1981); System Terminal Corp. v. Cornelison, 364 P.2d 91 (Wyo. 1961).

Table 3. States That Appear to Have Recognized Duty to Mitigate in Common-Law Decisions

Idaho

Indiana

Michigan

Ohio

Idaho:

In Industrial Leasing Corp. v. Thomason, 532 P.2d 916, 919 (1974), the Court concluded that the "best rule" was to require mitigation because it

would discourage idleness of productive property and would be in keeping with the other generally accepted damages rules in other commercial law transactions. E.g., in the rental of real property, most jurisdictions place a duty upon a landlord to seek new tenants when the lessees have refused to pay rent as provided for in the lease agreement and have vacated the property. Martin v. Siegley, 123 Wash. 683, 212 P. 1057 (1923); Wright v. Baumann, 239 Ore. 410, 398 P.2d 119 (1965).

In Consolidated AG of Curry, Inc.,912 P.2d 115 (Idaho 1996), the Supreme Court of Idaho concluded that it is consistent with the jurisprudence of this state as reflected in Industrial to require a lessor of real property to mitigate damages if the lessee has refused to pay rent and has abandoned the property." This is a commercial lease case and the case did not distinguish between commercial and residential leases, even though a commercial lease was at issue. The court's language indicates the duty applies to all leases. 

Indiana:

The Indiana Supreme Court has not decided on this issue. Appellate courts and lower courts have recognized the duty to mitigate, however.  

In State v. Boyle, 344 N.E.2d 302 (Ind. Ct. App. 1976), the court stated:

A similar argument was made by the appellant in Hirsch v. Merchants National Bank & Trust Co. (1975), 166 Ind. App. 497, 336 N.E.2d 833. Therein, this court recognized an obligation on the landlord to use such diligence as would be exercised by a reasonably prudent man under similar circumstances to relet the premises, if possible, in order to mitigate damages resulting from the tenant's breach of lease. 

In Nylen v. Park Doral Apartments, 535 N.E.2d 178, 183 (Ind. Ct. App. 1989), the court stated:  

The doctrine of mitigation of damages creates an obligation on the part of the landlord to use such diligence as would be exercised by a reasonably prudent man under similar circumstances to re-let the premises, if possible, in order to mitigate damages resulting from the tenant's breach of lease. State v. Boyle (1976), 168 Ind.App. 643, 646, 344 N.E.2d 302, 304. The obligation exists even if there is no mandatory re-letting clause in the lease. See Hirsch et al. v. Merchants Nat'l Bk. (1975), 166 Ind.App. 497, 336 N.E.2d 833. Further, courts have recognized and enforced the doctrine of mitigation of damages while at the same time sustaining savings clauses.

Michigan:

In Fox v. Roethlisberger, 85 N.W.2d 73 (Mich. 1957), although the Court refused to decide whether a duty to mitigate exists, the Court stated: 

Both parties seek to propound and discuss here many knotty and profound questions as to the state of the law in Michigan in these situations. Some of these questions Sec. are as follows: Is there a duty on a landlord to act to rerent premises wrongfully abandoned in order to mitigate damages or may he choose to let the premises remain idle?Sec.Sec. Some of these interesting questions are discussed or touched upon in annotations in 40 ALR 190 and 126 ALR 1219. Our opinion in Michigan-Lafayette Building Co. v. Continental Bank, 250 Mich 591, seems, obliquely at least, to imply that we might be inclined to place some burden on the landlord to mitigate damages in these situations. But we do not think it is necessary for us to grapple with these large prickly questions to decide this case. Whatever the state of the law of Michigan may or should be on these and other related questions -- there is in fact a remarkable paucity of authority -- it seems enough to say here that, taking a view of the law most favorable to the defendants, there was evidence that the plaintiffs and their agent did in fact endeavor to rent the premises; that they were finally successful; and that the defendants, who did not testify, did nothing whatever (beyond delivering a key) to mitigate their own damages, so far as this record discloses." 

In Froling v. Bishoff, 252 N.W.2d 832 (Mich. Ct. App); Jefferson Development Compnay v Heritage Cleaners, 311 N.W.2d 426 (Mich. App. 1981), the courts suggested a duty to mitigate when a tenant abandons a lease and breaches the lease terms.  Michigan courts have not specifically distinguished between commercial and residential leases. 

Note: In M & V Barocas v. THC, Inc., 549 N.W.2d 86 (Mich. Ct. App.1996), the court held Landlord seeking recovery of rent had no duty to mitigate damages in absence of abandonment of leasehold premises or surrender of lease. Therefore, for action to collect rent when the tenant did not abandon the lease, there is no duty to mitigate.

Ohio:

Ohio courts appear to be split on this issue. Although it seems that most courts will impose a duty on landlords to mitigate, it is unclear whether courts will enforce contractual language relieving the landlord of the duty. Stern v. Taft, 361 N.E.2d 279 (Ohio Ct. App. 1976); Lyon v. Howard, No. 5-86-22, 1987 Ohio App. LEXIS 9706, (Ohio Ct. App. 1987); Frenchtown Square P'ship v. Lemstone, Inc., 2001 Ohio App. LEXIS 2125 (Ohio Ct. App. 2001) (stating that the majority view among Ohio courts of appeals is that a landlord in a commercial lease has a duty to mitigate damages once the tenant has abandoned the premises). 

However, in Sandusky Mall Co. v. Pet Corner, 1997 Ohio App. LEXIS 1470 (Ohio Ct. App1997), the court stated: 

To meet their burden that there be an actual conflict between appellate districts pursuant to Article IV, section 3(A)(4) of the Ohio Constitution, appellants argue that the decisions of New Towne Limited Partnership v. Pier One Imports, Inc. (July 26, 1996) Lucas App. No. L-95-384, unreported; Gerber v. Lewis (Dec. 12, 1996) Cuyahoga App. No. 70955, unreported; Montrose Centre v. Pacific Waterbeds, Inc. (May 26, 1993) 1993 Ohio App. LEXIS 2681, Summit App. No. 15906, unreported; Chillicothe Plaza Assoc. v. Taylor (June 4, 1993) 1993 Ohio App. LEXIS 2861, Ross App. No. 1870, unreported; Lyon v. Howard (November 10, 1987) Hancock App. No. 5-86-22, unreported; and Stern v. Taft (1976), 49 Ohio App. 2d 405, 361 N.E.2d 279 are in conflict with this case. We have reviewed the cases asserted to be in conflict. Montrose involved a sublessee who maintained possession of the premises and simply failed to make monthly rental payments when due. That case is factually distinguishable. New Towne, while it recited that there is a duty to mitigate in a commercial setting when premises are abandoned, held the parties in that case freely entered a contract negating such a duty. Lyon does stand for the proposition that a landlord does have an affirmative duty to actively procure a new tenant for the purpose of mitigating damages. That duty is measured by ordinary and reasonable care, diligence and prudence.  

The Taylor court held that the law did not require the landlord to find a new tenant, only use ordinary and reasonable care and diligence in attempting to find a new tenant. The Gerber case involved a residential lease and is distinguishable on that point. The Stern case, cited in several of the above noted unreported decisions, stands for the proposition that a lessor has an active duty to procure a new tenant in order to mitigate damages. However, Stern does not identify whether the premises are commercial or residential. From a reading of the case, it appears that said premises are residential, making this case factually distinguishable.  

Upon our examination of New Towne, supra and Lyon, supra, the issue of whether a commercial landlord has a duty to mitigate damages upon the wrongful abandonment of the premises by a tenant is one in which appellate districts differ. Based upon the cases noted, appellant's Motion is sustained and this cause is certified to the Ohio Supreme Court to decide the issue: Whether a commercial landlord has a duty to mitigate damages by attempting to obtain a new lessee for rental premises abandoned during the term of the lease [the Supreme Court later withdrew its certification to review this question, at the petition of the parties. Ed.] 

Two other recent Ohio cases state that the landlord has the duty to mitigate when it has taken possession of the premises following forfeiture of the lease: Morris Investment Company v. Sawyer Indian Hill Apothecary, 620 N.E.2d 313 (Ohio App. 1993); South Towne Centre, Ltd., v. Carlson Catalog Showrooms 1988 WL 37487 (Ohio App.). (Note that there arguably is a distinction between the landlord's duties when the landlord evicts the tenant and the landlord's duties when the tenant abandons.)  

The Ohio Supreme Court in the 2000 decision of Dennis v. Morgan, 732 N.E.2d 391 (Ohio 2000), although not in the syllabus, stated: AY landlords have a duty, as all parties to contracts do, to mitigate their damages caused by a breach. Landlords mitigate by attempting to rerent the property. Their efforts to do so must be reasonableY@

It thus appears that the Ohio Supreme Court has recognized the duty to mitigate, absent contract provision to the contrary, but there is uncertainty as to whether the parties can contract to avoid the duty.

Table 4: States That Impose No Duty to Mitigate in Residential Leases (Statute or Decision): 

A) Residential Lease

Alabama

Arkansas

Colorado

D.C.

Florida

Georgia

Massachusetts

Minnesota

Mississippi

Missouri

Pennsylvania

Vermont

Virginia

Alabama:

In Ex parte Kaschak, 681 So. 2d 197 (Ala. 1996), the Alabama Supreme court stated:

The trial court and the Court of Civil Appeals correctly held that when a tenant abandons leased premises the landlord has two options. First, the landlord may allow the premises to remain vacant and recover rent for the whole term of the lease, or the landlord may end the lease by accepting the abandoned property and re-entering the premises. Ryals v. Laney, 338 So. 2d 413 (Ala. Civ. App. 1976). Furthermore, the landlord is under no affirmative duty to mitigate any damages arising under default on a lease agreement by a tenant. Whether a landlord has accepted a tenant's abandonment of leased premises, so as thereby to terminate the lease, is a question of fact, and an acceptance may be implied from acts and conduct of the landlord. Cobb v. Lee, 44 Ala. App. 277, 207 So. 2d 143 (1968). McClure v. Daniel, 45 Ala. App. 558, 233 So. 2d 500 (1970). 

This case is a commercial lease, but when the court made the statement, it did not distinguish between residential or commercial leases.  

Arkansas:

In Grayson v. Mixon, 176 Ark. 1123, 5 S.W.2d 312 (1928), the Supreme Court stated:

It would appear also that the landlord could refuse to accept the abandonment, let the premises lie idle, and sue the tenant for the rent as it matured under the lease, in this case, on the 10th day of each month. In Bradbury v. Higginson, 162 Cal. 602, 123 P. 797, it was held that, although the tenant abandon the premises, the landlord has no right of action for the rent until it falls due. If the landlord so elects, he may treat the lease agreement as at an end and sue for damages for breach of the contract, in which case he could bring his action immediately on the breach and recover the difference between the amount of rent reserved and the reasonable rental value for the remainder of the term, if the rental value be less than the amount reserved in the lease, or he could wait until the end of the term and sue for the difference between the rent reserved and the actual amount of rent received from a subletting on the tenant's account.

In Weingarten/Arkansas, Inc. v. ABC Interstate Theatres, Inc., 811 S.W.2d 295 (Ark. 1991), the Court cited to Grayson and confirmed the view. 

The traditional view, under common law, gives a landlord three options when a lessee abandons the premises: 1) he may refuse to accept abandonment, let the premises lie idle, and sue the tenants as the rent matures; 2) accept the keys as a surrender of possession, thereby terminating the lease and reenter on his own account; or 3) reenter and relet for the tenant's account and hold the tenant liable for any difference in the agreed rent and that of the new tenant. See Grayson v. Mixon, 176 Ark. 1123, 5 S.W.2d 312 (1928); R. Cunningham, W. Stoebuck and D. Whitman, The Law of Property, Sec. 6.80, 403 (1984).

This is a commercial lease, but the court made the statement without distiuguishment. 

Colorado:

In Schneiker v. Gordon, 732 P.2d 603, 610 (Colo. 1987), the Colorado Supreme Court stated: 

Public policy also favors the application of contract principles to these circumstances. Under traditional property law principles a landlord could allow the property to remain unoccupied while still holding the abandoning tenant liable for rent. This encourages both economic and physical waste. In no other context of which we are aware is an injured party permitted to sit by idly and suffer avoidable economic loss and thereafter to visit the full adverse economic consequences upon the party whose breach initiated the chain of events causing the loss. Furthermore, it is generally in the interests of society that property be put to practical use so far as is economically feasible. Usually, no economic value is obtained from property if a landlord allows it to remain idle. At the same time, the possibility of physical damage to the property through accident or vandalism is increased. The rules for awarding damages in the context of abandonment and breach by the tenant should discourage, rather than encourage, economic and physical waste. MAR-SON, Inc., 259 N.W.2d at 291; Wright, 398 P.2d at 120-21; C. Kaufman, Corbin on Contracts Sec. 1039A (1984 Supp.); D. Dobbs, Handbook on the Law of Remedies Sec. 12.6, at 828-29 (1973); McCormick, The Rights of The Landlord Upon Abandonment of The Premises By The Tenant, 23 Mich. L. Rev. 211 (1925). We believe that the contract principle of "avoidable consequences" or "duty to mitigate" should be applied in this context to prevent a landlord from passively suffering preventable economic loss, to encourage the productive use of land, and to decrease the likelihood of physical damage to property. n5 Likewise, a landlord should be permitted to maintain an action for contract damages caused by a tenant's wrongful abandonment so that the landlord is able to receive the benefit of his bargain.  

However, in footnote 4, the court clarified:

We express no view as to whether our holding today can be applied to leases of all types. On several occasions we have recognized that the parties to a residential lease are not in the same relative position, at least with regard to the equality of bargaining power between them, as are parties to a typical commercial lease. See, e.g., Martin v. Allen, 193 Colo. 395, 566 P.2d 1075 (1977) (recognizing that Sec. 38-12-101 through -103, 16A C.R.S. (1982), governing wrongful withholding of security deposits by residential landlords, was enacted to equalize the disparity in power which exists between landlord and tenant over relatively small sums). It remains for future determination whether differences in the form, subject matter, and the interests of society as among various types of leases warrant that there be differences in treatment with respect to the same or similar problems and issues.

District of Columbia

Int’l Comm'n on English in the Liturgy v. Schwartz, 573 A.2d 1303, 1306 (D.C.1990):

When tenants wrongfully abandon premises, landlords have three options: [1] [the landlords] could accept the abandonment and thereby terminate the lease; [2] they could, without acquiescing in the abandonment, re-enter and relet and hold the tenants for any deficiency in rent; or [3] they could refuse to re-enter, allow the premises to remain vacant, and hold the tenants for the full rent.Truitt v. Evangel Temple, Inc., 486 A.2d 1169, 1172 (D.C.1984) (quoting Cohen v. Food Town, Inc., 207 A.2d 122, 124 (D.C.1965)).

This is a commercial lease case, but the court did not distinguish between residential and commercial lease.

Notwithstanding this case, D.C. attorneys report that they believe that courts will take failure to mitigate into account in equity in ascertaining damages.

Florida

Fla. Stat. ch. 83.595 (2000)  Choice of remedies upon breach by tenant.  

(1) If the tenant breaches the lease for the dwelling unit and the landlord has obtained a writ of possession, or the tenant has surrendered possession of the dwelling unit to the landlord, or the tenant has abandoned the dwelling unit, the landlord may:  

(a) Treat the lease as terminated and retake possession for his or her own account, thereby terminating any further liability of the tenant; or  

(b) Retake possession of the dwelling unit for the account of the tenant, holding the tenant liable for the difference between rental stipulated to be paid under the lease agreement and what, in good faith, the landlord is able to recover from a reletting; or  

(c) Stand by and do nothing, holding the lessee liable for the rent as it comes due.  

(2) If the landlord retakes possession of the dwelling unit for the account of the tenant, the landlord has a duty to exercise good faith in attempting to relet the premises, and any rentals received by the landlord as a result of the reletting shall be deducted from the balance of rent due from the tenant. For purposes of this section, "good faith in attempting to relet the premises" means that the landlord shall use at least the same efforts to relet the premises as were used in the initial rental or at least the same efforts as the landlord uses in attempting to lease other similar rental units but does not require the landlord to give a preference in leasing the premises over other vacant dwelling units that the landlord owns or has the responsibility to rent.  

Georgia

Research revealed no Georgia Supreme Court case deciding this issue.  

In Peterson v. Midas Realty Corp., 287 S.E.2d 61 (Ga. Ct. App. 1981), the court concluded:

Georgia follows the majority view. See Annots. 40 ALR 190, 126 ALR 1219, 21 ALR3d 546. In Baldwin v. Lampkin, 14 Ga. App. 828, 830 (82 SE 369), this court found "the general rule, that it is the duty of a party suffering from the breach of a contract to diminish, if possible, the damages, has no application to a contract of lease . . ."" We reaffirmed this principle in Dehco, Inc. v. Greenberg, 105 Ga. App. 236, 238 (124 SE2d 311) wherein we explained: "While generally a plaintiff must mitigate his damages when the defendant has breached a contract and while damages are generally a question for the jury, yet under the above quoted cases where a lessee has breached his lease contract the landlord is entitled to recover his past-due rents less only what he has received from any new tenant . . ." Accord: Love v. McDevitt, 114 Ga. App. 734 (1) (152 SE2d 705); Szabo Associates, Inc. v. Peachtree-Piedmont Assoc., 141 Ga. App. 654 (1) (234 SE2d 119); Dawkins, Landlord and Tenant, The Law in Georgia 120, Sec. 7-9; Cobb and Eldridge, Georgia Law of Damages 341, Sec. 28-15.

These cases do not distinguish between residential and commercial leases, but merely hold that Georgia follows the "majority view" that mitigation is not applicable to a lease contract.  

Massachusetts

In Fifty Assocs. v. Berger Dry Goods Co., 176 N.E. 643 (Mass. 1931), the Court stated:

The judge was right in refusing to rule that “The plaintiff owed the defendant a duty to attempt to let the premises in mitigation of damages." The plaintiff was entitled to rely upon the defendant's agreement to pay rent and could recover thereon rent without diminution up to the termination of the lease by eviction, entry for condition broken, or otherwise, and no rent thereafter. Sutton v. Goodman, 194 Mass. 389, 395, 80 N.E. 608. Towle v. Commissioner of Banks, 246 Mass. 161, 167, 140 N.E. 747. Weeks v. International Trust Co. 125 Fed. Rep. 370, 375. Underhill v. Collins, 132 N.Y. 269, 271-272, 30 N.E. 576.

Minnesota:

In Control Data Corp. v. Metro Office Parks Co., 296 Minn. 302 (Minn. 1973), the Court stated:

In Minnesota, landlords are under no obligation to mitigate damages after a tenant abandons leased premises. Gruman v. Investors Services, Inc. 247 Minn. 502, 78 N.W. 2d 377 (1956); Poboisk v. Colon, 292 Minn. 451, 195 N.W. 2d 431 (1972)."

Also see Markoe v. Naiditch & Sons, 226 N.W.2d 289 (Minn.1975).  

Mississippi:

In Alsup v. Banks, 9 So. 895, 899 (Miss. 1891), the court noted that the lessor might have permitted the premises to remain vacant and untilled, and have recovered the entire rental from the lessee or his representative. Research revealed no major authority deal with this issue in Mississippi since then. 

Note: although this is the only authority available in Mississippi by now, many attorneys in Mississippi believe that the 1891 case is not sound authority and that a Mississippi court today would find that the landlord has an obligation to mitigate, certainly in the residential context and probably in the commercial context also. In addition, Mississippi often follows Texas law on real estate issues and the Supreme Court of Texas found an duty to mitigate.

Missouri

In Rhoden Inv. Co. v. Sears, Roebuck & Co., 499 S.W.2d 375, 385-386 (Mo. 1973), the Missouri Supreme Court stated:

"Whitehorn v. Dickerson, 419 S.W.2d 713 (Mo. App. 1967), involved an admitted abandonment of leased premises by defendant tenant and the duty vel non of plaintiff landlord to mitigate damages. The court observed, 419 S.W.2d at 718[8]: "if counsel's search for a controlling Tennessee or Missouri case is no more productive or conclusive than ours has been, precedents in other jurisdictions will become persuasive. In that event, it may be said confidently that the overwhelming weight of judicial authority elsewhere is that, in the absence of a provision in the lease to the contrary, lessor is under no duty to seek a new tenant when the latter abandons the leased premises prior to expiration of the term but may let the premises lie idle and collect the rents reserved as they accrue."  

In Consolidated Sun Ray, Inc. v. Oppenstein, 335 F.2d 801 (8th Cir. 1964), the court stated that under the law of Missouri the landlord, upon default of the tenant, has three options: 1. To remain out of possession, treat term as subsisting and recover rent; 2. To give notice to tenant, resume possession and relet to mitigate damages, collecting loss from tenant; 3. To re-enter, resume possession in own right and close the term. See also Babcock v. Rieger, 76 S.W.2d 731 (Mo. App. 1934); Jennings v. First Nat. Bank of Kansas City, 225 Mo. App. 232, 30 S.W.2d 1049 (1930); Von Schleinitz v. North Hotel Co., 323 Mo. 1110, 23 S.W.2d 64 (1929); Anno. 21 A.L.R. 3rd 546. 

In Adkins v. Hobson & Son, Inc., 666 S.W.2d 951 (Mo. App. 1984), the court stated

The lessor does not have a duty to mitigate damages when a recovery is sought for unpaid rent under the first option set forth in Babcock. Hurwitz v. Kohm, 516 S.W.2d 33 (Mo. App. 1974). See also Rhoden Investment Co., Inc. v. Sears, Roebuck & Co., 499 S.W.2d 375 (Mo. 1973).  

Pennsylvania

In Stonehedge Square Ltd. Partnership, 715 A.2d 1082 ( Pa. 1998), the Pennsylvania Supreme Court affirmed the order of the appellate court holding that a non-breaching landlord whose tenant had abandoned the property in violation of the lease had no duty to mitigate damages.

This is a commercial lease case, but the court concluded the law without distinction of residential or commercial. 

Vermont

Vt. Stat. Ann. tit. 9 § 4462 (2001)  Abandonment; unclaimed property  

(a) A tenant has abandoned a dwelling unit if:

(1) there are circumstances which would lead a reasonable person to believe that the dwelling unit is no longer occupied as a full-time residence;  

(2) rent is not current; and  

(3) the landlord has made reasonable efforts to ascertain the tenant's intentions.  

(b) If the tenant abandons the dwelling unit the tenant shall remain liable for rent until the expiration of the rental agreement. However, if the landlord rents the dwelling unit before the expiration of the rental agreement, the agreement terminates on the date of the new tenancy.  

Virginia

In Crowder v. Virginian Bank of Commerce, 103 S.E. 578 (Va. 1920), the Supreme Court stated: 

It is also claimed for the bank that it was the duty of the landlord to find another tenant for the property, under the generally accepted rule that when one is entitled to the benefit of a contract and can save himself from loss arising from a breach thereof at a trifling expense, or upon reasonable exertion, it is his duty to do it, and he can charge the delinquent party with such damages only as with reasonable endeavor and expense could not be prevented; and that a plaintiff cannot recover for avoidable consequences. While there is no doubt about this general rule, it does not apply to such a case as this.  

In 24 Cyc. at p. 1164, many authorities are cited for the proposition, that a tenant who abandons the demised premises before the expiration of his lease, without the consent of his landlord, does not thereby exonerate himself from the payment of rent for the residue of the term, and that the landlord, where the tenant has violated his contract, is not required to relet for the benefit of the tenant, but at his election may suffer the premises to remain vacant and recover the rent for the remainder of the term, or he may, on the other hand, elect to enter and determine the lease, and if he so determines the lease by re-entry, he is entitled to recover only for the rent then due.

In the case of TenBraak v. Waffle Shops, 542 F.2d. 919 (4th Cir. 1976), the 4th Circuit made a detailed analysis of the state of Virginia law on the subject of a landlord's duty to mitigate damages when a tenant abandons the premises. This case summarized the two remedies discussed in Crowder, as: landlord is permitted at his option, either: 

1. to refuse to accept the tenant's surrender, do nothing and sue for accrued rents, or

2. re-enter the premises and accept the tenant's surrender, thereby terminating the lease and releasing the tenant from further liability on the lease. 

Tenbraak appears to suggest a third possible option under Virginia Law: 

"Neither party has raised the question of whether the law of Virginia would permit a landlord, in the event of abandonment by his tenant, to re-enter for the limited purpose of re-letting the property on the tenant's account but it does appear that Virginia law would permit such a re-entry which would not operate to terminate the lease."

Citing Hoster-Columbus Associated Breweries Co. v. Stag Hotel Corp, 111 Va. 223 (1910).  

B) Commercial Lease

Alabama

Arkansas

District of Columbia

Georgia

Massachusetts

Maryland

Minnesota

Mississippi

Missouri

Montana

New Hampshire

New York

Oklahoma

Pennsylvania

Virginia

Alabama:

Ex parte Kaschak, 681 So. 2d 197 (Ala. 1996).  

Arkansas:

Weingarten/Arkansas, Inc. v. ABC Interstate Theatres, Inc., 811 S.W.2d 295 (Ark. 1991).

District of Columbia:

Int’l Comm'n on English in the Liturgy v. Schwartz, 573 A.2d 1303 (D.C.1990). (Despite this case, D.C. practitioners warn that courts will view the question of whether landlord has mitigated as an equitable consideration in assessing damages.)

Georgia:

Peterson v. Midas Realty Corp., 287 S.E.2d 61 (Ga.App. 1981).

Maryland:

In Millison v. Clarke, 403 A.2d 384 (Md. 1979), the court stated:

It is hornbook law in Maryland that a commercial landlord may hold a breaching tenant for the entire amount of the rent due under a lease without seeking to lessen his damages. McNally v. Moser, 210 Md. 127, 141, 122 A.2d 555 (1956).

Although the case was reversed in part on other grounds, The Court of Special Appeals cited Millison for the mitigation issue in Maxima Corp. v. Cystic Fibrosis Foundation, 568 A.2d 1170 (Md.1990).

Minnesota:

Gruman v. Investors Diversified Services. Inc., 78 N.W.2d 377 (Minn.1956).

Missouri:

Rhoden Inv. Co. v. Sears, Roebuck and Co., 499 S.W.2d 375 (Mo. 1973); MRI Northwest Rentals Invs. I, Inc. v. Schnucks-Twenty-Five, Inc., 807 S.W.2d 531 (Mo. Ct. App. 1991). 

Montana:

Although Montana has the statute that imposes a duty to mitigate in residential lease, in Bunke, Inc. v. Johnson, 666 P.2d 1234 (Mont. 1983), Bunke argued, quoting from the American Law of Property, subsection 3.99, that

The situation that has given rise to most litigation is that where the tenant abandons the premises and refuses to pay rent. The courts usually hold that the lessor may let the premises lie idle and collect the rent. There are statements in some cases that the lessor has a duty to mitigate damages, as for breach of contract, but most of the decisions are simply that if the lessor reenters for the purpose of reletting for the lessee he must use reasonable diligence in so doing. Generally, however, the courts hold that the lessor who reenters may relet for the lessee's benefit, holding the lessee for any deficiency, provided he gives the lessee notice. [Emphasis added by Bunke].

And the court stated that "We have no quarrel with Bunke's statement of the law." It seems that the court is indicating that there is no such duty in commercial lease. 

New Hampshire:

Wein v. Arlen's, Inc., 103 A.2d 86 (N.H. 1954).

New York:

Holy Properties Ltd., L.P. v. Kenneth Cole Productions, Inc., 637 N.Y.S.2d 964 (N.Y. 1995).

Oklahoma:

In Carpenter v. Riddle, 527 P.2d 592 (Okl. 1974), the court stated:  

Generally, in Oklahoma, if a tenant wrongfully abandons leased premises before the expiration of the term, the landlord, at his election, may: (1) terminate the lease contract, enter and take possession recovering accrued rents to the date of entry, or (2) do nothing to terminate the lease or disturb possible possession and sue at the appropriate time for the entire term, or (3) give notice to defaulting tenant of his refusal to accept the surrender (when such notice can be given), and sublet the premises for the benefit of the tenant to mitigate his damages. 

In Fudge v. United Urban Indian Council, Inc., 803 P.2d 268 (Okl.App. 1990), the court stated in a footnote:  

At first blush the decisional rule of law stated in [Carpenter] appears to support the landlord. It is summarized as follows: If a tenant wrongfully abandons leased premises before the expiration of the term, the landlord, at his election, may: (1) terminate the lease contract, enter and take possession recovering accrued rents to the date of entry, or (2) do nothing to terminate the lease or disturb possible possession and sue at the appropriate time for the entire term, or (3) give notice to defaulting tenant of his refusal to accept the surrender . . . and sublet the premises for the benefit of the tenant to mitigate his damages.

This statement of the law applied to both commercial and residential lease contracts until 1978 when the Oklahoma Residential Landlord and Tenant Act, 41 O.S. 1990 Sec.Sec. 101 through 136 was enacted. The second option was extinguished with regard to residential lease abandonment disputes in 1978 by the enactment of 41 O.S.1981 Sec. 129(B). 

It seems that the Fudge court here is indicating that the second option is still available to commercial lease.

Pennsylvania:

Stonehedge Square Ltd. Partnership v. Movie Merchants, Inc., 715 A.2d 1082 (Pa.1998).

Virginia:

Hewitt v. May, 3 Va. Cir. 253 (Vir. Cir. 1984)  

Table 5: States Where Duty to Mitigate Is Uncertain

A) Residential Lease

Louisiana

New Hampshire

New York

South Dakota

West Virginia

Louisiana:

There appears to be some conflict among the Louisiana courts in cases involving abandonment of leased premises.

The courts in the following Louisiana cases have held or recognized that a landlord is not under a duty to mitigate damages: 

Louisiana Supreme Court in D. H. Overmeyer Co., Inc. v. Blakeley Floor Covering, Inc., 266 So. 2d 925 (La. Ct. App. 1972), application denied, 263 La. 615, 268 So. 2d 676 (1972), states that

As a general rule, our courts have stated a lessor need not mitigate damages by reletting his premises when the original lessee breaches his contract by abandoning them. n1 However, if the lessor does re-let his property for the unexpired term, he must credit his lessee with funds collected from the new tenant. . . . It has been reasoned that in re-letting to a second tenant the lessor acts as a negotiorum gestor for the defaulting lessee or as an agent acting without authority of his principal. n3 In our view, this de facto agency principle is limited to a mandate for the purpose of mitigating damages." 

Note: although the Louisiana Supreme Court has not directly decided on this issue, the application of this decision was denied by the Louisiana Supreme Court, stating that the judgment was correct. 

In Richard v. Broussard, 482 So. 2d 729 (La. Ct. App. 1985), writ granted, 488 So. 2d 190 (La. 1986) judgment aff'd as amended, 495 So. 2d 1291 (La. 1986), reh'g denied, (Nov. 13, 1986), although the issue before the court primarily was whether the lessor's reentry of the leased premises terminated the lease under the circumstances of the case, the court noted, however, that when a lessee defaults on a lease agreement, the lessor may, as one of two available options, elect to enforce the lease, obtain a money judgment against the lessee based on the terms of the lease agreement, and leave the lease in effect with the lessee retaining the right of occupancy for the remainder of the lease term. The lessor also has the right to take possession of the premises as agent for the lessee and to relet the premises to a third party without canceling the lease or relieving the lessee of the lessee's obligations. It seems that the court suggested that the landlord may do so, but is under no duty to do so.

On review of this case, the Lousiana Supreme Court stated: 

Generally, when a lessee defaults on a lease agreement, the lessor has two options available: he may sue to cancel the lease and to recover accrued rentals due, or he may sue to enforce the lease and to recover both accrued rentals and future accelerated rentals (if the lease contains an acceleration clause). These remedies are mutually exclusive. Riccobono v. Kearney, 164 La. 947, 114 So. 846 (1927); Comment, The Louisiana Law of Lease, 39 Tul. L. Rev. 798, 860 (1965); V. Palmer, Leases, The Law in Louisiana Sec. 5-19 (1982). If the lessor elects to cancel the lease, the lease is terminated and the lessor is entitled to return into possession, but he forfeits the right to all future rentals. On the other hand, if the lessor elects to enforce the lease, he may obtain a money judgment against the lessee based on the terms of the lease agreement, but the lease remains in effect and the lessee retains the right of occupancy for the remainder of the term of the lease. See Clay-Dutton, Inc. v. Coleman, 219 So. 2d 307 (La. App. 1st Cir. 1969). However, when the lessee breaches the lease by abandoning the premises, the lessor has the right to take possession of the premises as agent for the lessee and to relet the premises to a third party without canceling the lease or relieving the lessee of his obligations under the lease contract. n1

n1 A lessor generally must resort to the judicial process to take possession of the leased premises upon the lessee's default and may not engage in self-help. The courts have carved out an exception to this general rule which allows a lessor to engage in self-help when the lessee has unjustifiably abandoned the leased premises. See Bunel of New Orleans, Inc. v. Cigali, 348 So. 2d 993 (La. App. 4th Cir. 1977).

It appears from the above that the Louisiana Supreme Court is indicating that no duty exists. The following courts, however, have ruled that the lessor has a duty to mitigate damages:  

Easterling v. Halter Marine, Inc., 470 So. 2d 221 (La. Ct. App. 4th Cir. 1985), writ denied, 472 So. 2d 920 (La. 1985), observed that an injured party has a duty to mitigate damages, generally, but found that the landlord fulfilled its duty to mitigate its damages. 

In Gray v. Kanavel, 508 So. 2d 970 (La. Ct. App. 4th Cir. 1987), a tenant abandoned the premises prior to the termination of the lease. In calculating the landlord's damages, the court decided that when there is no evidence showing that the landlord did not attempt to mitigate damages, the tenant was entitled only to a credit for any income that the landlord may have derived from the property prior to the expiration of the term. This apparently indicated that a landlord may be under a duty to mitigate damages when 

The court in Shank-Jewella v. Diamond Gallery, 535 So. 2d 1207 (La. Ct. App. 2d Cir. 1988), stated that when a lessee vacates the leased premises prematurely, the lessor must take reasonable steps to lease the space to another tenant to minimize its damages.  

The court in Myers v. Foster, 610 So. 2d 192 (La. Ct. App. 3d Cir. 1992) noted that an obligee must make reasonable efforts to mitigate damage caused by an obligor's failure to perform.  

New Hampshire

Research indicates that New Hampshire courts have rarely dealt with this issue. Under Wen v. Arlen's, Inc., 103 A.2d 86 (N.H. 1954), it seems that landlord does not have a duty, (the case involved a commercial lease case, but the court did not make any distinction). But in Modular Mfg., Inc. v. Dernham Co., 65 B.R. 856 (Bankr. D.N.H. 1986), the court stated that a duty to mitigate does exist.   

New York:

In Holy Properties, Ltd., 661 N.E.2d 694 (N.Y. 1995), the court concluded: 

The law imposes upon a party subjected to injury from breach of contract, the duty of making reasonable exertions to minimize the injury Sec. Leases are not subject to this general rule, however, for, unlike executory contracts, leases have been historically recognized as a present transfer of an estate in real property (see, Becar v Flues, 64 N.Y. 518, 520; Reichert v Spiess, 203 A.D. 134, 139, 196 N.Y.S. 466; see also, Centurian Dev. v Kenford Co., 60 A.D.2d 96, 400 N.Y.S.2d 263). Once the lease is executed, the lessee's obligation to pay rent is fixed according to its terms and a landlord is under no obligation or duty to the tenant to relet, or attempt to relet abandoned premises in order to minimize damages (2 Rasch, New York Landlord and Tenant Sec. 26:22 [3d ed 1988]).  

When defendant abandoned these premises prior to expiration of the lease, the landlord had three options: (1) it could do nothing and collect the full rent due under the lease (Becar v Flues, 64 N.Y. 518, supra; Sancourt Realty Corp. v Dowling, 220 A.D. 660, 222 N.Y.S. 288), (2) it could accept the tenant's surrender, reenter the premises and relet them for its own account thereby releasing the tenant from further liability for rent, or (3) it could notify the tenant that it was entering and reletting the premises for the tenant's benefit. If the landlord relets the premises for the benefit of the tenant, the rent collected would be apportioned first to repay the landlord's expenses in reentering and reletting and then to pay the tenant's rent obligation (see, lease para 18; Underhill v Collins, 132 N.Y. 269, 30 N.E. 576; Centurian Dev. v Kenford Co., supra). Once the tenant abandoned the premises prior to the expiration of the lease, however, the landlord was within its rights under New York law to do nothing and collect the full rent due under the lease (see, Becar, 64 N.Y. 518, supra; Underhill v Collins, 132 N.Y. 269, 30 N.E. 576, supra; Matter of Hevenor, 144 N.Y. 271, 39 N.E. 393).

Also see Duda v. Thompson, 647 N.Y.S.2d 401 (Sup. Ct. 1996). In Whitehouse Estates, Inc. v. Post, 662 N.Y.S.2d 982 (App. Div. 1997), however, the court held that residential landlords have a duty to mitigate because the decision in Holy Properties, Ltd. dealt only with a commercial lease and did not expressly overrule the body of residential lease case law.  

South Dakota: We could find no case addressing the issue.  

West Virginia:

Research revealed very limited West Virginia decisions upon this issue and the West Virginia Supreme court has not decided specifically upon this issue either. However, in Teller v. McCoy, 253 S.E.2d 114 (W. Va. 1978), the W. Va. Supreme court stated: 

This Court, along with many others, has concluded that the harsh common law rules of property, riddled historically with numerous exceptions, no longer exclusively govern the residential lease in light of legislative enactments and intent. Since the rights and duties of the landlord and residential tenant must be viewed under contract principles, the tenant's duty to pay rent is dependent upon the landlord's fulfillment of the implied warranty of habitability. 

Therefore, it seems like that the West Virginia courts will most likely take the position that a duty to mitigate does exists. 

B) Commercial Lease 

Connecticut

Unlike other state statutes that expressly state that they apply only to residential leases, the Connecticut statute does not indicate that its coverage is limited. See Conn. Gen. Stat. Sec. 47a-11a (2001).

In Danpar Assocs. v. Somersville Mills Sales Room, Inc., 438 A.2d 708 (Conn. 1980) the Supreme court stated that landlords have a duty to minimize their damages.  

Hoban v. Masters, 421 A.2d 1318 (Conn.Super. 1980), however, indicates that this chapter and chapter 831 were passed to aid residential apartment dwellers and do not apply to commercial leases. Also see Zitomer v. Palmer, 446 A.2d 1084 (Conn.Super.1982); Dewart Bldg. Partnership v. Union Trust Co., 496 A.2d 241, 243 (Conn. App. Ct. 1985); K&R Realty Assocs. v. Gagnon, 639 A.2d 524 (Conn. App. Ct. 1994).

In K&R Realty Assocs. v. Gagnon, 639 A.2d 524 (Conn. App. Ct. 1994), the court stated:

In Connecticut, when the lessee breaches a lease for commercial property, the lessor has two options: (1) to terminate the tenancy; or (2) to refuse to accept the surrender. Sagamore Corporation v. Willcutt, 120 Conn. 315, 317-18, 180 A. 464 (1935); Dewart Building Partnership v. Union Trust Co., 4 Conn. App. 683, 687, 496 A.2d 241 (1985). Where the landlord elects to continue the tenancy, he may sue to recover the rent due under the terms of the lease. Under this course of action, the landlord is under no duty to mitigate damages. Dewart Building Partnership v. Union Trust Co., supra. When the landlord elects to terminate the tenancy, however, the action is one for breach of contract; Sagamore Corporation v. Willcutt, supra; and, when the tenancy is terminated, the landlord is obliged to mitigate his damages. Dewart Building Partnership v. Union Trust Co., supra. When the tenancy ends, the tenant is released from his obligations under the ease and is, therefore, no longer obliged to pay rent. Feneck v. Nowakowski, 146 Conn. 434, 436, 151 A.2d 891 (1959). . . . 

The court in Dewart Bldg. Partnership v. Union Trust Co., 496 A.2d 241, 243 (Conn. App. Ct. 1985) expressed the same view.