In the default provisions of Section 15, what is the landlord’s duty to “mitigat
ID: 389320 • Letter: I
Question
In the default provisions of Section 15, what is the landlord’s duty to “mitigate” damages? Should the landlord be required to mitigate? Explain.
15. Default
In the event of a default made by Tenant in the payment of rent when due to Landlord, Tenant shall have fifteen (15) days after receipt of written notice thereof to cure such default. In the event of a default made by Tenant in any of the other covenants or conditions to be kept, observed, and performed by Tenant, Tenant shall have thirty (30) days after receipt of written notice thereof to cure such default. In the event that the Tenant shall fail to cure any default within the time allowed under this paragraph, Landlord may declare the term of this Lease ended and terminated by giving Tenant written notice of such intention, and if possession of the Leased Premises is not surrendered, Landlord may reenter said premises. Landlord shall have, in addition to the remedy above provided, any other right or remedy available to Landlord on account of any Tenant default, either in law or equity. Landlord shall use reasonable efforts to mitigate its damages.
Explanation / Answer
In the cases of default by the tenants, or breach of any contracts, the rule that a plaintiff who has been wronged is entitled to put in the place where he /she would have been, had the duty been performed well by the defendant, is subject to the fact that the defendant can not be asked to pay avoidable losses which by accumulation have increased the quantum of damages to be paid to plaintiff. In other words, the plaintiff is entitled to recover the damages, the extent of which will depend on the fact whether he /she had taken steps to aviod their unreasonable accumulation. This action of avoidance on the part of plaintiff is called duty of mitigation of damages.
The landlord should be required to mitigate the damages if he/she knew that his /her inaction will lead to unreasonable accumultion of damages, later to be paid by the tenant, to protect the interests of tenant and preventing the unscrupulous landlords from claiming unreasonable damages while being capable of mitigating them.