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Ely, Counselor at Law
Category: Landlord-Tenant
Satisfied Customers: 102584
Experience:  Attorney
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If I moved into an apartment in Davidson County, Tennessee

Customer Question

If I moved into an apartment in Davidson County, Tennessee on September 5, 2015, following the sudden death of my husband but it has become necessary to break the lease due to health issues (I am disabled) and have a letter from my doctor stating it is in the best interest for my health conditions to return to Oregon where I can be near family for assistance (I have no one in Tennessee), I understand they can charge me a penalty for breaking the lease, however, can they charge me rent for the Unit for AFTER I will have vacated and also charge rent from the tenant who moved in after I vacated. I was my understanding rent could not be charged from two separate tenants for the same unit covering the same time period.
Submitted: 2 years ago.
Category: Landlord-Tenant
Expert:  Ely replied 2 years ago.

Hello and welcome to JustAnswer. Please note:This is general information and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

I am sorry to hear about this situation.

They can try. If a lease is breached, then the presumption is that the breaching party (i.e. the ex-tenant) is liable for the remainder of the lease.

However, if the landlord sues, then the tenant can claim duty to mitigate and double-dipping as possible affirmative defenses. What do I mean by this?

Duty to Mitigate
It is the duty of an injured party to exercise reasonable care and diligence to avoid loss or minimize damages. Yates v. Metro Govt. of Nashville & Davidson County, 60 Tenn. App. 719, 451 S.W.2d 437 (1969); see Arkansas River Packet Co. v. Hobbs, 105 Tenn. 29, 58 S.W. 278 (1900); Summers & Lewis v. Sanderson, 7 Tenn. App. 624 (1928). The applicable standard is one of reasonable care. The plaintiff is not required to mitigate his damages if such action is unduly burdensome or impossible. Haynes v. Cumberland Builders, Inc., 546 SW 2d 228 - Tenn: Court of Appeals, Middle Section 1976.

What this means is that it can be argued that the landlord had the duty to re-advertise and re-rent to a reasonable applicant. If the landlord simply let the property stand empty without doing anything, then their ability to claim the amount of money they would have been paid had the lease not been breached may be reduced somewhat. This is subjective and is up to the Court to decide.

Double Dipping
If the landlord does have someone move in, then they can only claim the amount for the time that the property actually STOOD EMPTY. In other words, they cannot double dip, asking for money for the breach while also having someone else move in and receive money for this. They can however ask for any difference in rental amounts, as well as administrative/advertisement fees required for the releasing.

I hope this helps and clarifies. Gentle Reminder: Use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how I get credit for my time with you. Rating my answer the bottom two faces/stars or failing to submit the rating does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith by rating me positively.

Customer: replied 2 years ago.
I am confused. They advised that I gave notice on October 15th (which I did), which fell 40 days short of the 60 days required in the lease. I received this response taped to my door October 16, the day after providing them with my doctor's written recommendation. They are now demanding I pay rent through November 15, to make up the 60 days. However, I am certain the apartment will be rented & occupied by a new tenant by October 15th. They will then have collected rent from me & from the new tenant for the same time period. In the State of Oregon that is illegal. Can this be done in Davidson County, Tennessee?
Expert:  Ely replied 2 years ago.

The penalty - is is written into the lease?

Expert:  Ely replied 2 years ago.

First of all, you keep mentioning the medical note. That does not matter, with all due respect. A medical issue is not enough to breach lease in TN.

As for the penalty - let us discuss this. Now remember what we had talked about, re: "double dipping?" That still applies. So if you breach lease by giving not enough notice or leaving early, they cannot collect money from you while also having new tenants on the property for the same days as they are alleging you breached (assuming the new tenants pay the same amount). However there is an exception. If the lease had a clause that stated that ANY breach would carry an automatic PENALTY, then they can demand it. You see, the contractual penalty is - well - contractual and applies automatically, even if they get someone else in.

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Expert:  Ely replied 2 years ago.

Hello again. This is a courtesy check in to see if you needed anything else in regards ***** ***** question. I am simply touching base. Let me know. Thanks! If you have all the information you needed, please do not forget to rate positively. Thanks!