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What Is Damage Mitigation?

Landlords in most U.S. states must try and re-rent your unit if you move out early—and, once they do, you’re no longer on the hook for any remaining rent payments.

In most states, the law requires your landlord to "mitigate"—that is, minimize—any damages related to your departure if you move out early. The most obvious damage, of course, is lost rent. Landlords can minimize the amount of rental income they lose by either accepting a qualified tenant you’ve referred to them or looking for one on their own.

This is important because—assuming you haven’t been able to officially terminate your lease early—you’re still responsible for the remaining rent under your original lease, even if you’re no longer living in the unit. But if your landlord successfully finds a replacement tenant, then you're off the hook for any additional rent payments. Plus, if your landlord refuses to mitigate—either by turning away a qualified candidate or by not taking reasonable steps to re-rent—then you’re no longer responsible for paying rent once you’ve moved out.

What's considered damage mitigation under the law?

Unfortunately, there’s no exact formula to tell if your landlord is mitigating damages. Generally, a landlord is expected to make a “reasonable” effort to re-rent, which means they go through all their usual steps of renting out a property. We can look to past court decisions for more concrete details. These situations have all been considered reasonable by various state courts:

  • A landlord showing an apartment to all prospective tenants1
  • A landlord advertising the premises through a newspaper, placing a sign in the window, and employing a realtor2
  • A landlord refusing to rent out a unit when it would mean accepting less than fair market value3

Courts across the country have also weighed in on situations in which a landlord has instead failed to mitigate damages:

  • A broker placing a newspaper advertisement in just one issue of a local paper4
  • A landlord refusing to accept a suitable subtenant5
  • A landlord demanding a monthly rent that’s far higher than the rent paid by the original6

But here’s the thing: the law doesn’t expect your landlord to bend over backwards to find a replacement tenant as quickly as possible. They just have to make a good-faith effort to look for a new renter—or be willing to consider the replacement tenant you’ve provided. Your landlord may be obligated to cooperate with your request to assign your lease or sublet by approving your candidate within a reasonable timeframe. If they don’t consent to the new tenant, they have to offer a valid reason for refusing.

Where did this law come from?

The obligation to mitigate damages came about as part of a trend toward modernizing landlord-tenant law, culminating in the 1970s. Here's the jist:

In the early days of landlords and tenants, the rental property in question was farmland. People rented it for growing seasons that were one year long. If a tenant left after harvesting, but before planting, no one else could be expected to rent the property until the next season started. Instead, it sat there unused, and the tenant was still responsible for the remaining months of rent.

A vacant apartment or house can be a blight on a neighborhood in a way that an unused farm can't. That's why, in the 1970s, a group of attorneys decided to prevent landlords from leaving an abandoned unit unrented. After all, if you can continue charging a tenant for rent even when they're gone, you can avoid most of the hassle of being a landlord (marketing, screening, negotiating, cleaning, and repairing units) with all of the upside (rental income).

The duty to mitigate is one part of the larger Uniform Residential Landlord Tenant Act (URLTA), which is the closest thing that the U.S. has to a federal landlord-tenant law.

Which states require landlords to mitigate damages?

Most states require landlords to mitigate damages, either through a law that’s on the books or through a history of relevant court cases. That said, landlords do not have a legal responsibility to mitigate damages in Arkansas, Florida, Minnesota, Mississippi, Pennsylvania, and Vermont.

[1] Hershorin v. La Vista, Inc., 110 Ga.App. 435, 138 S.E.2d 703 (App.1964)

[2] Carpenter v. Wisniewski, 139 Ind.App. 325, 215 N.E.2d 882 (App.1966)

[3] Foggia v. Dix, 265 Or. 315, 509 P.2d 412, 414 (1973)

[4] Anderson v. Andy Darling Pontiac, Inc., 257 Wis. 371, 43 N.W.2d 362 (1950)

[5] Scheinfeld v. Muntz T. V., Inc., 67 Ill.App.2d 8, 214 N.E.2d 506 (Ill.App.1966)

[6] Consolidated Sun Ray, Inc. v. Oppenstein, 335 F.2d 801, 811 (8 Cir. 1964)

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