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Landlord increased rent rate during Mitigation

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Latest post Thu, Jun 8 2017 2:49 PM by Taxagent. 11 replies.
  • Tue, Jun 6 2017 9:21 AM

    • jennatwo
      Consumer
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    • Joined on Fri, Apr 3 2009
    • NJ
    • Posts 19

    Landlord increased rent rate during Mitigation

    I'm breaking a commercial lease that still has one year left on it. The landlord has to mitigate. However he has advertised the property at a higher rental rate than my lease. I think this is unfair, and reduces my chances of finding a new tenant. Can that be used to free me from the remainder of the lease?

     

     

  • Tue, Jun 6 2017 9:30 AM In reply to

    Re: Landlord increased rent rate during Mitigation

    You can make the argument.  However, it may be that prevailing rental rates have increased in the time since you entered into your lease.

  • Tue, Jun 6 2017 4:29 PM In reply to

    Re: Landlord increased rent rate during Mitigation

    jennatwo:

    I'm breaking a commercial lease that still has one year left on it. The landlord has to mitigate. However he has advertised the property at a higher rental rate than my lease. I think this is unfair, and reduces my chances of finding a new tenant. Can that be used to free me from the remainder of the lease?

    That question may be premature.

    A landlord has no duty to mitigate until the tenant breaches the lease which involves abandoning or surrendering the premises and ceasing the payment of rent.

    As long as you are still in occupancy and still paying, you are not in breach of the lease so what the landlord is doing or not doing may be unfair but it is irrelevant at this point.

    Even after you've breached the lease the question of mitigation doesn't arise until the landlord sues you and you get to raise lack of mitigation as a defense. That's when the landlord has to show that he properly mitigated. If he didn't it could reduce any monetary damages to which he may be entitled.

     

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • Wed, Jun 7 2017 6:24 AM In reply to

    • jennatwo
      Consumer
    • Not Ranked
    • Joined on Fri, Apr 3 2009
    • NJ
    • Posts 19

    Re: Landlord increased rent rate during Mitigation

    I already vacated the property and stopped paying rent.  So he listed it for sale and for rent.  However, he listed the rental rate higher than what I pay.  So the point is he is making it harder for me to get another tentant by doing so.  There have to be laws that govern this.  If my rent is 3000.00 you can't turn around and try and list it for 5000.00 and when no one rents it, i owe the remainder of my lease.  He is creating a hardship for me to find a replacement tenant.

    Do you think I can legally reenter the property.

  • Wed, Jun 7 2017 6:57 AM In reply to

    Re: Landlord increased rent rate during Mitigation

    jennatwo:
     If my rent is 3000.00 you can't turn around and try and list it for 5000.00 and when no one rents it, i owe the remainder of my lease.

    If what the landlord is seeking for rent is higher than the current market rate for the space then you can argue in court that the landlord’s unreasonably high rent was responsible for the landlord’s failure to re-lease the space and thus the landlord failed to mitigate his damages. As a result, you should not be held liable for rent for those months.

  • Wed, Jun 7 2017 8:06 AM In reply to

    Re: Landlord increased rent rate during Mitigation

    jennatwo:
    I already vacated the property and stopped paying rent

    Good.

    jennatwo:
    There have to be laws that govern this

    There are. Read Sommer v Kridel. The NJ Supreme Court explained the landlord's duty to mitigate and that rule has been followed since then.

    https://scholar.google.com/scholar_case?case=446948677125117679&q=sommer+v+kridel&hl=en&as_sdt=4,31

    jennatwo:
     If my rent is 3000.00 you can't turn around and try and list it for 5000.00 and when no one rents it, i owe the remainder of my lease.  He is creating a hardship for me to find a replacement tenant.

    Right.

    jennatwo:
    Do you think I can legally reenter the property.

    How would you do that? Do you still have keys? If you do, then you have a problem because you have not surrendered the property and the landlord has no obligation to mitigate until you do.

    If you don't have the keys anymore you would be trespassing and subject to arrest.

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • Wed, Jun 7 2017 12:01 PM In reply to

    • Drew
      Consumer
    • Top 10 Contributor
    • Joined on Thu, Mar 30 2000
    • PA
    • Posts 51,431

    Re: Landlord increased rent rate during Mitigation

    Be careful and I'm not sure...but in some states the duty to mitigate on a commercial lease may also fall on side that breaks the deal....and it may be smart for you to run same advs at the prevailing actual rent just to,see if you you can abate 



  • Wed, Jun 7 2017 2:56 PM In reply to

    Re: Landlord increased rent rate during Mitigation

    Drew:

    Be careful and I'm not sure...but in some states the duty to mitigate on a commercial lease may also fall on side that breaks the deal.

    Hey, Drew, I see you are still giving misinformation about mitigation.

    1 - OP is in New Jersey so what "some states" do is irrelevant.

    2 - The New Jersey Supreme Court explained the landlord's duty to mitigate quite clearly in the case decision that I posted.

    Drew:

    and it may be smart for you to run same advs at the prevailing actual rent just to,see if you you can abate 

    That couldn't hurt but the OP has no obligation to do so.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • Wed, Jun 7 2017 3:43 PM In reply to

    Re: Landlord increased rent rate during Mitigation

    adjuster jack:

    Drew:

    Be careful and I'm not sure...but in some states the duty to mitigate on a commercial lease may also fall on side that breaks the deal.

    Hey, Drew, I see you are still giving misinformation about mitigation.

    A lot of what "Drew" posts read a lot like, "This thing that I made up may or may not be true in one or more unknown places that may or may not be where you are."

  • Wed, Jun 7 2017 5:56 PM In reply to

    Re: Landlord increased rent rate during Mitigation

    Like ^

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • Wed, Jun 7 2017 7:50 PM In reply to

    • Drew
      Consumer
    • Top 10 Contributor
    • Joined on Thu, Mar 30 2000
    • PA
    • Posts 51,431

    Re: Landlord increased rent rate during Mitigation

    Whoa....actually NJ did not tighten the requirements for commercial ,LLs from the old common law until a decade later,  1991 , Mcguire v Jersey City  and NJ did not entirely abandon it...it is likely you can still side  step  the modern trend to require,LL mitigation by careful,drafting of a commercial,lease by LL., true its in if its not expressly out ....it might have changed ...I have not used NJ counsel,or commercial leases for several,years. 

    NY follows,the older law and of course NJ is not NY

     

    We don't know what is in OPs lease 

    And even if there is a duty to mitigate , its,mere,speculation to assume that one factor , $5000/m v $3000/m makes it a,sham effort.  

     



  • Thu, Jun 8 2017 2:49 PM In reply to

    Re: Landlord increased rent rate during Mitigation

    adjuster jack:

    There are. Read Sommer v Kridel. The NJ Supreme Court explained the landlord's duty to mitigate and that rule has been followed since then.

    https://scholar.google.com/scholar_case?case=446948677125117679&q=sommer+v+kridel&hl=en&as_sdt=4,31

    A little more explanation is needed on that one. The case you cited involved a residential lease, not a commercial one. The NJ Supreme Court specifically noted in footnote 4 that “we reserve for another day the question of whether a landlord must mitigate damages in a commercial setting.” Sommer v. Kridel, 74 N.J. 446, 456, 378 A.2d 767, 772 (1977)(footnote 4). Thus, this case cannot be said to be good authority on the issue of whether mitigation is required in a commercial lease. The issue as it relates to commercial leases was finally addressed 14 years later, with the NJ Supreme Court stating:

    “On the issue of mitigation, the Appellate Division held that a lessor of commercial property is required to mitigate damages arising from breach of a lease and suggested that, on remand, the trial court should consider whether McGuire's sale of the properties should reduce the amount of his loss. We affirm the Appellate Division's holding that a commercial lessor is governed by the same rule of mitigation of damages that applies to a residential lessor. See Sommer v. Kridel, 74 N.J. 446, 378 A.2d 767 (1977).”

    McGuire v. City of Jersey City, 125 N.J. 310, 320, 593 A.2d 309, 314 (1991). So you are correct that mitigation of damages applies, it's just that the correct case to cite for a commercial lease would be the McGuire case, not Sommer.
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