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       #Post#: 41--------------------------------------------------
       Sommer v. Kridel & Riverview v. Perosio
       By: SunsetSailor Date: January 27, 2011, 10:28 pm
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       RULES:
       * OLD/MAJORITY RULE (Followed by Restatement):
       1. LL has NO duty to mitigate damages caused by a
       defaulting tenant
       2. POLICYA leasehold was a conveyance and when
       you conveyed it to a T, why should a LL care if the T abandons
       it?  The T in abandoning is committing a wrong and the law
       should not allow the T to impose his wrong duty on the LL.  At
       CL, the LL had the right to personally select the T and the law
       should not impose on the LL to accept a substitute T.
       * NEW RULE/MITIGATION RULE:
       1. A LL has a duty to mitigate damages where he seeks
       to recover rents due from a defaulting tenant
       2. If the LL has other vacant apartments besides the
       one which the T has abandoned, the LL’s duty to mitigate
       consists of making reasonable efforts to re-let the apartment.
       In such cases, he must treat the apartment in question as if it
       was one of his vacant stock.
       3. As part of his cause of action, the LL shall be
       required to carry the burden of proving that he used reasonable
       diligence in attempting to re-let the premises (If you could
       have avoided the loss, you can’t collect damages for it)
       * ASSESSING WHETHER THE LL HAS CARRIED HIS BURDEN:
       1. Trial Courts Consider:
       o Whether the LL, either personally or through
       an agency, offered or showed the apartment to any prospective T,
       or advertised it in local newspapers.
       o T may attempt to rebut such evidence by
       showing that he proffered suitable Ts who were rejected.
       o There is NO standard formula for measuring
       whether the LL has utilized satisfactory efforts in attempting
       to mitigate damages, and each case must be judged upon its own
       facts.
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