I am often asked about whether, upon the vacatur of a residential tenant before the end of the lease term, a residential landlord can sit back, accrue rent arrears from the absentee tenant, and then sue for those arrears. Must a landlord actively seek a new tenant, and thereby mitigate his damages caused by the tenant who skipped town.
The answer is "No." There is no duty to mitigate.
While the law was clearer with regard to commercial tenancies, i.e. that the landlord was under no obligation to mitigate its damages by finding a new tenant, it is now clear that the same rule of law applies for residential tenants.
In Rios v. Carrillo, 53 A.D.3d 111, 861 N.Y.S.2d 129 (2d Dep't. 2008), the Appellate Division, Second Department, citing Holy Properties, Ltd.. v. Cole Products, Inc. 87 N.Y.2d 130 (1995) and Whitehouse Estates v. Post, 173 Misc.2d 558 App. Tm. 1st Dep't. 1997) specifically held, "Well-settled law [in New York] imposes no duty on a residential landlord to mitigate damages."
From a practical perspective, however, upon being awarded a default judgment for rent arrears against a tenant who abandoned his/her apartment, a landlord may encounter difficulty in collecting on the judgment. Thus, there will be times when it may be more prudent to simply retain the security deposit, apply it towards the rent arrears, and move forward towards finding a replacement tenant.
