Written by attorney David M Blain

Landlord-Tenant Law: A Landlord's Duty to Mitigate Damages

The most obvious responsibility of a tenant is to pay the rent. In return, the landlord must provide a habitable premises which the tenant can quietly enjoy. But what happens when the tenant breaches the lease agreement and vacates the premises prior to proper termination of the tenancy or expiration of the lease term?

Well, many things happen, but in this brief legal guide there are two interrelated issues that I will discuss: (1) the security deposit and (2) the landlord's responsibility to mitigate damages.

The security deposit

For a thorough understanding of what a security deposit is, what can be legally deducted from it, and what the landlord's duties are to the tenant if deductions are made, please see this guide.

Briefly speaking, the landlord is permitted to keep from a security deposit the costs to repair damages, clean the premises, and recover unpaid rent for improper notice or termination of the tenancy. However, the landlord is not permitted to keep any portion of the security deposit as damages for unpaid rent that could have been avoided by the landlord.

Mitigation of damages

"A plaintiff has a duty to mitigate damages and cannot recover losses it could have avoided through reasonable efforts." Thrifty-Tel, Inc. v. Bezenek (1996), 46 Cal. App. 4th 1559, 1568-1569.

"It has been the policy of the courts to promote the mitigation of damages. A plaintiff cannot be compensated for damages which he could have avoided by reasonable effort or expenditures." Green v. Smith (1968), 261 Cal. App. 2d 392, 396.

"The reasonableness of the efforts of the injured party must be judged in the light of the situation confronting him at the time the loss was threatened and not by the judgment of hindsight." Green, supra, 261 Cal. App. 2d at p. 396.

Simply put, the landlord has to make a reasonable effort and take appropriate steps to re-rent the vacated premises in order to avoid excess damages.

For example, a tenant who vacates the apartment with 10 months remaining on a lease term has clearly breached the agreement. However, the Courts will not allow the landlord to recover for all 10 months of unpaid rent from the vacating tenant. The Court will require the landlord to have made a reasonable effort to re-rent the vacated unit and will cut off the right to recover damages for the entire 10 months. What is reasonable will depend on the facts of the given circumstance, but generally speaking a unit should be rented out within 2, 3, or 4 months.

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