Riverview Realty Co. v. Perosio

138 N.J. Super. 270, 350 A.2d 517 (Super. Ct. App. Div. 1976)

 

RULE:

A lease with a provision against assignment or abandonment by the tenant permits a landlord to leave the premises vacant for the balance of the leasehold term and recover the total accrued rent. He has no duty to mitigate damages -- a doctrine which is universally applicable to ordinary contract relationships.

FACTS:

Defendant tenant rented premises from plaintiff landlord. The lease contained a provision that defendant was not to assign or sublet without the written consent of plaintiff. It also gave plaintiff the right to re-enter and re-let the premises as defendant’s agent. Plaintiff sued to recover unpaid rent on a lease which started February 1, 1973 and ended on January 31, 1975. Defendant vacated the premises in February 1974 and paid no rent thereafter. The trial judge entered summary judgment for plaintiff for nine months' rent and held as a matter of law that the defense of landlord's duty to mitigate damages by trying to re-rent the premises was not available. On appeal, the appellate court affirmed the trial court’s judgment.

ISSUE:

In an action for recovery of rent where the lease contained a provision against assignment or abandonment by the tenant, could defendant tenant avail of the defense that plaintiff landlord had the duty to mitigate damages through efforts to re-rent the premises?

ANSWER:

No.

CONCLUSION:

Plaintiff landlord had no duty to mitigate damages and could leave the premises vacant for the balance of the leasehold term and recover the total accrued rent.

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