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How to Tell If Your Landlord Is Actually Mitigating Damages

Landlords in most U.S. states are required to make an effort to re-rent your apartment if you leave early. Here’s how to tell if they’re doing it according to the law.

In most states, the law requires your landlord to mitigate damages if you leave before your lease is up. In non-legal terms, that means your landlord must make a reasonable effort to re-rent the unit if you move out early. Once it’s re-rented, you’re no longer responsible for any remaining rent payments.

Maybe you can already see the problem, though—how can you tell if your landlord is actually making an honest effort to find a new tenant to replace you? And what are your options if they're not following the law?

What counts as damage mitigation under the law?

Unfortunately for renters, there’s no exact definition. The next-best thing is reviewing court cases in each state, which can offer additional specifics on what judges consider a failure to mitigate. In any case, a good rule of thumb is that if a landlord doesn't do the things that they normally do to rent a unit, then they are not making a good-faith effort to mitigate damages.

In addition, your landlord is required to accept a replacement tenant you’ve found—but only if they’re qualified. If your replacement has bad credit or a history of evictions, your landlord could reasonably reject them.

How can I tell if my landlord’s actually mitigating damages?

Obviously, if your landlord is flat-out refusing to rent to a qualified candidate that you referred to them, that’s your proof right there. But if you’ve already moved out, and you’re trying to figure out if your landlord is actively trying to re-rent the place, then you’ll have to dig harder.

You can see if your landlord is advertising your unit by checking sites like Craigslist, PadMapper, StreetEasy, or wherever rental ads are posted in your city. If you want to go a step further, you could try scheduling a viewing to make sure that the apartment is actively being shown. If you’re in contact with any of your old neighbors, you could also touch base to see if they’ve noticed prospective tenants touring the unit—or even moving in! (In one case, a tenant submitted evidence that she drove by her old rental two months after moving out and noticed trash in the garbage cans, proving that it had already been re-rented. The court didn't hold her responsible for rent after that date.1)

Make sure to keep records of everything you’ve found, including screenshots and notes. Keep track of dates, as well. This will be important if you end up in court.

What can I do if my landlord isn’t mitigating damages?

Some landlords, especially ones with just a few properties, may not be aware of their duty to mitigate. If your landlord has rejected a candidate that you think was reasonably qualified, remind them in writing about the laws in your state and ask why your replacement wasn’t approved. If your landlord can’t come up with a valid reason—and they’re still unwilling to approve the new tenant—inform them in writing that, since they’ve failed to mitigate damages, you no longer owe any rent under your lease once you move out.

If you’ve already moved out without trying to find a new tenant, you should expect to lose a month’s worth of rent. Most judges consider that a fair amount of damages, no matter how quickly your landlord is able to turn around and start showing and advertising the unit (or even if your landlord isn’t trying to mitigate damages at all!). Typically, your landlord will take this out of your security deposit.

But if you moved out with a lot of time remaining on your lease, your landlord may not be satisfied with just a month’s rent. They may contact you, demanding that you pay the entire balance of your remaining lease. If that happens, start by sending them a letter explaining that they need to mitigate damages, citing the relevant law in your state. That may set them straight. If not, your landlord’s next step will probably be to sue you for unpaid rent.

In court, you’ll need proof that your landlord didn’t make an effort to re-rent the place. (That’s where screenshots, neighbor testimony, or any other evidence you collected comes in.) Some states place the burden on the tenant to prove that their landlord didn’t make an effort to re-rent—rather than the landlord being forced to prove that they did—so you’ll want to make sure your case is solid.

[1] Page v. Hulse, No. 14-06-00731-CV (Tex. App. Jul. 26, 2007)

The information provided on this website does not, and is not intended to, constitute legal advice.