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  1. #1
    Join Date
    Nov 2016
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    2

    Default Can a Landlord Use More Stringent Criteria When Finding a New Replacement Tenant

    My question involves landlord-tenant law in the State of: Missouri

    I started a one-year lease in Missouri, stayed for two months and had to move to Indiana because of a job relocation. I have been paying rents every month on time since I left. The landlord was notified a month before I left and posted ads for new tenants on Zillow and Trulia. However, the landlord didn't allow pets for new tenants, while on my lease pets are allowed. This practice effectively excludes potential new tenants owning pets. Until now no new tenants are found. My question is what legal options I can take to recover my loss because of her wrongful practice.

    I searched through the forum but couldn't find a specific answer.

    Thanks!

    PetTenant

  2. #2
    Join Date
    Mar 2013
    Posts
    18,340

    Default Re: Can a Landlord Use More Stringent Criteria in Finding a New Replacement Tenant

    Missouri has no statute regarding a landlord's duty to mitigate:

    http://www.moga.mo.gov/mostatutes/ch...tIndex441.html

    Missouri relies on common law case decisions at the appellate court level.

    The Missouri Court of Appeals explains mitigation as follows:

    "A lease cannot be terminated by the unilateral act of the tenant." Brywood Ltd. Partners, L.P. v. H.T.G., Inc., 866 S.W.2d 903, 905 (Mo.App.1993). Under Missouri law, when a tenant defaults on a lease, the landlord has three options: "`(1) [r]emain out of possession, treat the lease as subsisting and collect rent; (2) give notice to tenant, resume possession of the premises and attempt to relet in order to mitigate any damages; or (3) reenter, resume possession in its own right and, effectively, terminate the lease.'" Blue Ridge Ctr. Ltd. Partnership v. Zadeh, 943 S.W.2d 357, 358 (Mo.App.1997) (quoting MRI Northwest Rentals Invs. I, Inc. v. Schnucks-Twenty-Five, Inc., 807 S.W.2d 531, 534 (Mo.App.1991)). Although, generally, a landlord has no duty to mitigate damages, once it accepts possession of the property and notifies the tenant of its intention to attempt to relet the property, the landlord voluntarily assumes a duty to mitigate, as the second option reflects. Id. 201*201 at 359. Once a lessor accepts the duty to mitigate damages, although it "is not required to do everything imaginable" to do so, its attempts must be reasonable. Brywood Ltd. Partners, L.P., 866 S.W.2d at 907. The tenant has the burden of proving that a lessor failed to take such reasonable steps to mitigate damages. Blue Ridge Ctr. Ltd. Partnership, 943 S.W.2d at 359.

    ...the RESTATEMENT (SECOND) OF PROPERTY § 12.1 cmt. i (1977) does provide that, if the landlord chooses to relet the property to mitigate the damages against a defaulting tenant, "the tenant is liable for the difference between the rental the tenant was obligated to pay and the amount received from the new tenant, and is also liable for the reasonable costs incurred by the landlord to procure a new tenant." To the extent necessary to prevent, in our view, the obvious injustice of a defaulting tenant from receiving the benefit of the landlord's reletting of the property without requiring him or her to be responsible for any expense incurred by the landlord in actual mitigation of his or her damages, we would adopt the Restatement position to the extent discussed, infra.
    http://scholar.google.com/scholar_ca...en&as_sdt=4,26

    This decision does not address whether the landlord has to offer the exact same terms and conditions to a replacement tenant but it would seem reasonable for him to be required to do so.

    As you read the quoted sections you will find links to other case decisions that might or might not address the issue.

    And there are many more case decisions that you can review at:

    http://scholar.google.com/scholar?q=...&as_sdt=4%2C26

    As for what legal options you have, there is only one: sue him in Missouri and prove lack of proper mitigation.

    Meantime, I suggest you stop paying him any more rent. When a landlord has no money coming in on a rental he has a greater incentive to re-rent as fast as possible.

  3. #3
    Join Date
    Nov 2016
    Posts
    2

    Default Re: Can a Landlord Use More Stringent Criteria in Finding a New Replacement Tenant

    Thank you, Ayn! It's really helpful! In my case, the landlord "voluntarily assumes a duty to mitigate", the option 2. To sue her, the case will have to go to a higher court and a lawyer will likely be needed because the money amount in question is over $5,000 limit in small claim court ($1,550 monthly rent). Considering the legal cost, I am not sure if it is economically sound to sue her in a higher court. But I'll consult attorneys to be sure. Thanks again!

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