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Abandonment and Mitigation

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  1. Abandonment and Mitigation Is it time to redefine these classic property concepts? Elena Marty-Nelson Professor of Law NSU Law Center

  2. The Common Law of Abandonment Traditionally a landlord had three options if a tenant abandoned the leased premises

  3. The Common Law of Mitigation At common law, landlord was under no duty to mitigate damages upon abandonment of a residential lease by a tenant.

  4. Abandonment Transition • Has the concept of abandonment been replaced by a modern day concept of early lease termination?

  5. State Statutes on Early Termination • Delaware §5314 – Tenant’s Right to Early Termination -- offers several “lawful elections” for a tenant’s right to terminate including: • Tenant enters into military service for the United States • Tenant is victim of domestic abuse, sexual offenses, stalking • Change in location of tenant’s employment • Tenant accepted into senior citizen housing • Tenant’s serious illness or death requires a change in location • Tenant accepted into subsidized private or public housing • Death of Tenant allows Surviving Spouse or PR to Terminate

  6. Early Lease Termination Servicemembers

  7. SCRA Purpose • To provide protections for servicemembers in the event that their military service impedes their ability to meet financial obligations incurred during periods of military service.

  8. Providing Protections for Servicemembers Federal Law: SCRA State Laws: AR, DE, GA, FL, IL, KS, LA, MD, MO, NC, NY, OR, PA, TX, VA, WA • The Federal Government has created various protections for servicemembers in the Servicemembers’ Civil Relief Act (SCRA). • SCRA allows for a servicemember to terminate his “residential lease” (defined broadly) early when: • Tenant entered into lease prior to joining the military or • Tenant entered into a lease while in the military if • tenant received orders to deploy for a period of at least 90 days, or • received orders for a permanent change of station • Several states have additional statutes for servicemembers

  9. State law differences Florida Georgia

  10. Servicemembers allowed early termination -- Beyond SCRA, under which circumstances should states allow early residential lease termination by servicemembers? All deployments? On-base housing becomes available? Expand term “servicemember”

  11. SCRA Enforcement • ENFORCEMENT: • Servicemembers’ rights to commence a civil action to enforce protections afforded them under the SCRA • Military legal assistance office? • U.S. Attorney General is authorized to commence a civil action to enforce provisions of the SCRA. • United States v. Empirian Property Management Inc. (D. Neb.) (March 1, 2012) • DOJ action for Landlord’s refusal to terminate residential leases entered into by active duty members of the US Air Force.

  12. SCRA Rights? • What is the scope of the servicemember/tenant’s termination right? • Return of Security Deposit? • Complete Release of Obligations? • Court’s discretion to relieve guarantors? (equitable considerations) • Practical effect of landlord’s rights regarding SCRA on servicembers’ protections? • Balance of the Equities? • Validity of waivers of rights and protections by servicemembers?

  13. Early Lease Termination Domestic Violence Victims

  14. Domestic Violence & the URLTA • What is the definition of domestic violence?

  15. Providing Protection forVictims of Domestic Violence AZ, CA, CO, CT, DE, DC, IL, IN, MD, MI, MN, NC, ND, NJ, NY, OR, TX, UT, WA, WY (HI, OH, RI, TN) An Analysis Across the Country

  16. Incentives to Terminate • Landlord Incentives • Tenant-Victim Incentives

  17. Differences in States’ Approach: Actual Attack v. Reasonable Apprehension of Harm? • Proactive or reactive approach? • Protective order? • Should a state require verification or documentation of domestic violence in some respect? • Attack? • Does there have to be an actual attack before a lease can be lawfully terminated? • Imminent Threat?

  18. Specific Considerations? • Notice required by the victim-tenant to the landlord? • What obligations should the tenant continue to be liable for and what rights should be available to the landlord, following a early termination?

  19. Broader ConsiderationsTenants’ Needs vs. Landlords’ Rights • Should the protection balance the safety and economic needs of the victim-tenant with the economic expectations of landlords? • Tenant-Victims need for protection • Landlords right to enforce their contracts? • Societal goals?

  20. Conclusion • What is the future of Abandonment & Mitigation? • Early Lease Terminations?

  21. Questions? Elena Marty-Nelson Professor of Law NSU Law Center 3305 College Avenue Fort Lauderdale, FL 33314 nelsone@nsu.law.nova.edu 954-262-6186 SSRN Author Page: http://ssrn.com/author=500647