This Week's Q & A

Q: I am currently a tenant in a condominium unit under a two-year lease that ends in July of next year. I agreed to lease the unit for more than a year only because the owner insisted that this was a condominium association policy. However, shortly after I moved in, I learned from a member of the condo board of trustees that, in fact, the association had no such policy. Another owner, who had rented this unit before me, confirmed that he had been given a one-year lease. With that information in hand, I sent the owner a letter in October, informing him that I planned to move in January – about 18 months into the lease but six months before it is supposed to end. Although I thought I was giving more than adequate notice – almost three months -- I offered to assist him in finding a suitable replacement tenant. He responded by warning me that if I leave before the lease ends, he will sue me to collect the total balance of the rent due -- $10,750. I called the Office of Consumer Affairs to ask about my rights, and was told that state law requires the landlord “to make reasonable efforts to find a new tenant to take over the balance of the former tenant’s lease. This is known as the landlord’s duty to mitigate damages.” So far, the owner has made absolutely no effort to find a new tenant. If I leave next month as planned, where will I stand?

A: On uncertain, but not entirely unfriendly, legal ground. To clarify the applicable law, the information you received about the “landlord’s duty to mitigate damages” is not correct. Many states have such a requirement, but Massachusetts is not among them. I don’t know the source of the phrase you quoted, but it does not come from the state law governing apartment rental agreements (Chapter 186). While several Massachusetts trial courts here have ruled that landlords do have an obligation to try to find a replacement tenant in situations such as the one you describe, there is no appellate decision on this point, and thus no binding legal precedent on which you can rely.

That said, the attorneys with whom I have discussed this issue in the past have generally agreed that landlords probably do have an obligation to limit their damages, and it’s only a matter of time before an appellate court formally establishes that principle. As a result, many (if not most) attorneys who represent landlords usually advise them to act as if mitigation is required, even if that requirement is less than ironclad.

If you end up fighting this out in court or before a mediator, one of the key questions will be what constitutes a “reasonable” effort to rent the unit. That definition will depend in part on what steps, if any, the owner has taken, but it will also depend on market conditions. Your landlord’s argument that he couldn’t find a new tenant will be somewhat more persuasive if vacancy rates are high than if yours is the only available unit in a highly desirable rental market.

As for your underlying argument -- that you signed the two-year lease only because the owner misrepresented the condo association’s requirements -- you could accuse the owner of fraud, insisting that you relied on his misrepresentations to your detriment. But absent something in writing from the owner, proving his misrepresentation and your reliance on it won’t be easy. It’s likely to be your word against his.

An attorney specializing in landlord-tenant law can give you a clearer idea of your options and possible strategies for dealing with your landlord. These might include an offer to find a replacement tenant, payment of some of the remaining rent due (but not all of it), or some other reasonable settlement that does not involve litigation. My guess is, neither you nor your landlord would benefit from a prolonged legal battle that would quickly eat up a good chunk of the nearly $11,000 you’re trying to protect.