Tenant Who Defaults Flashcards
Tenant who defaults
Tenant who doesn’t pay rent, violates some obligation of the lease, holds over beyond the lease term, trespasses or abandons premise.
Summary Proceeding:
A quick and efficient means by which to recover possession after terminations of a tenancy
Self-Help Exceptions
nonprofits, rehabs, elderly or battered women
Common Law Self-Help
Common Law Self-Help:
(1) That the landlord be entitled to possession.
(2) That the retaking of possession be by peaceable means.
Berg v. WIley
Rejects the common law rule of self-help and said that self-help is never available to a landlord to dispossess a tenant. Landlord’s must resort to the judicial process.
Modern Doctrine
Berg v. Wiley
Landlord must always resort to the judicial process to enforce his statutory remedy against a tenant who defaults
- Intent is to discourage landlords from taking the law into their own hands
- Last thing a court wants is for a L to breach the peace
Why did the Court find Wiley engaged in unlawful self-help, even if Common Law self-help was available?
(Berg v. Wiley)
NOT PEACEABLE
Even tho he used locksmiths and had police officers there, Ct. found he was not peaceable.
We know that Landlord’s can engage in self-help, what about tenants?
(Lindsey v. Normet)
Tenants allowed to engage in self-help by withholding rent if the premises is not habitable, i.e., landlord violate implied warranty of habitability
Where is common law self-help available, and why?
Commercial Settings
There is equal bargaining power
New Jersey Cases
(Sommer v. Kridel)
(Riverview v. Perosio)
The landlord has a duty to mitigate damages (i.e., relet the apartment) when he seeks to recover rent from a defaulting tenant.
Who has the burden of proof to show an attempt to relet the premises?
(NJ Cases)
Burden of proof is on the landlord to demonstrate whether he exercised reasonable diligence in attempting to relet the premises
What did the Ct. find in Sommer v. Kridel?
Ct. found that Kridel had the opportunity to relet the premises but chose not to. Thus, found for Sommer.
What did the Ct. find in Riverview v. Perosio?
Ct. found that there was no factual determination as to mitigation and remanded the case.
What is the common law rule for mitigation?
A landlord is under no duties to mitigate damages caused by a defaulting tenant.
What factors does the Court weigh to determine mitigation? (2)
(NJ Cases)
(1) Whether the landlord offered or showed the apartment to any prospective tenants or advertised the apartment
(2) No standard, each case must be judged on its own facts
