Michael Dahl, Public Policy Director
To dig deeper into the issues presented in the 2011 Minnesota Tenant Bill of Rights poll, I will be using this blog over the next several weeks to describe some of the proposals.
Many of the proposals are pretty simple but use confusing legal terminology. For example, consider the legal phrase duty to mitigate. Let’s set a context with a story about Eric:
Eric has fallen on hard times. He lost his job and is finding it hard to afford basic necessities. He knows that before long he will fall behind on rent. To cut back on expenses, he is considering moving back home with his parents. However, he still has seven months left on his lease.
Eric’s landlord correctly informs him that he is still responsible for the monthly rent for the rest of the lease. Eric asks if he can sublet, or take responsibility for finding a new tenant. The landlord says, “No. I am not willing to rent to just anyone you find.” So Eric asks the landlord if he will try to rent to someone else. The landlord hesitates.
Regardless, Eric moves out, hoping the landlord will try to re-rent the apartment.
Does Eric’s landlord have to make an attempt to find another tenant (that is, does the landlord have a duty to mitigate)? The answer depends on what state Eric rents in.
Now, I need to give credit to one of my amazing interns, Emma Phillips, for everything that follows. Emma, who will soon enter her second year at the University of Minnesota Law School, is heading up the legal research this summer for what other states do regarding tenants’ rights.
Here is what she’s found out about this thing called duty to mitigate: In Minnesota, Eric’s landlord would have no duty to mitigate — no duty to try to lessen the damages Eric could face. However, in 42 other states landlords would have to at least have to make a minimal attempt to re-rent the apartment after Eric has left.
Mind you, the landlords in those other states aren’t obligated to actually find another tenant; they just have to try. In most cases this means they have to advertise just as they would advertise for any other vacancies they have.
Why do so many other states require this? The answer is pretty simple. Almost every other type of legal contract is ruled by what is known as contract law doctrine. One of the basic principles is that when a contract has been broken, the party that is not in violation of the contract still has a duty to try to lessen its damages. The other states figure, what’ good for one type of contract should be good for another.
Now, the states that require this provide landlords with some protections. First, if the landlord decides to charge a different rent level, the courts generally hold that this is okay if it reflects changes in market value. Second, any rent collected from a new tenant is paid first to cover the landlord’s expenses in re-renting the property. Third, if the rent falls short of the amount the original tenant owes, that tenant is required to cover the difference.
So, Eric, right now you are out of luck. But, if a landlord duty to mitigate passes the Minnesota Legislature, future “Erics” may at least have a chance at their old apartment going to someone who could use it.
