Abandonmentof the leasehold amounts to an implied offer of surrender of the leasehold by the Tenant.LL Options:o(1) Do nothing and sue for rent as it becomes due.o(2) Accept SurrenderIf the offer of surrender is accepted in any fashion (word or deed) the obligation to pay rent is eliminated. LL can still collect past rent and potentially damages.If LL is in a CL jurisdiction, he can refuse to accept the surrender of the leasehold and therefore not risk the inability to recover damages.o(3) Refuse offer of surrender and re-let on the tenant’s account (voluntary mitigation).T1 may still be liable for damages if T2 is paying less than original lease.If LL re-lets for more, who gets the excess? Not clear.Acceleration clause: may make default payment of entire term’s rent due upon certain event. Once term is paid, LL forfeits right to reenter unless expressly reserved in lease.Residential v. Commercial: commercial leases are usually longer unfair to run the clock for 10 yrs?Vacant apartments: LL must treat the vacant apartment as though it was part of the LL’s vacant stock, can’t delay showing it to increase damages.oHoly Properties Limited v. Kenneth Cole Productions (Ex: CL Rule)Maintains the common law rule in NY that the landlord has NO duty to mitigate damages.Rationale: promote certainty in business transactions. People have relied on CL.Here, no duty to mitigate despite LL evicting T.oSommer v. Kridel (Ex: Modern Rule)Court rejects CL and imposes duty to mitigate b/c of fairnessconcerns.Burden on LL (non-breaching party) to prove attempted mitigation before Court will award damages. DOCTRINES OF QUIET ENJOYMENT & CONSTRUCTIVE EVICTIONQuiet Enjoyment (CL): oIf T is evicted by:(1) Someone claiming superior title (LL or someone claiming under the LL) OR(2) LL’s failure to perform duties under lease (exceptions to CL Caveat Emptor)oImplied covenant of quiet enjoyment has been violated.oIf implied covenant of quiet enjoyment is violated T may abandon relieved of duty to pay rent.oBreach must be substantial, a permanent interferenceoT may sue for breach of K damages. Constructive Eviction:oT is effectively evicted by some action of the landlord that substantially violates the implied covenant of quiet enjoyment.oNot clear if T can opt to stay on premises and still sue for breach of covenant of quiet enjoyment.oRisk: If T miscasts the breach he may be liable to LL for back rent. Would be to T’s advantage to obtain declaratory judgment before leaving but difficult/impossible to do. 33
Partial Constructive Eviction:oJudicial invention gave T the right to stay on the premises & still claim partial constructive eviction.oReduction in obligation to pay rent reflecting the value of the premises from which T has been partially constructively evicted.
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