i can leave you alone if this is getting annoying, but that is correct -- that is for commercial leases
. the case i stated was a residential lease
. it specifically states that the law of contract now applies to leases. here are some portions re-typed:
The common pleas court opinions which have discussed this issue state that the law in Pennsylvania as to the landlord's duty to mitigate damages is not clear. Boesch v. Ericsson, 9 Pa. D. & C.4th 20 (Erie 1990); Blanchard v. DiNardo, 48 Pa. D. & C.3d 268 (Bucks 1988); Hoffman Estate, 47 Pa. D. & C.2d 32 (Philadelphia 1969). But see Brumbach v. Kaufman Carpet Co. Inc., 67 Berks L.J. 18, 25 (1974) (“Plaintiff has a duty to make reasonable efforts to mitigate damages”); West Norriton Industrial Park v. Snappy Car Rental Inc., 118 Montg. L. Rep. 73, 78 (1986) (“Inasmuch as the breach represents a lost-volume sale, the non-breaching party is entitled to lost profits without a duty to mitigate”).
Under ordinary contract principles, a party to an agreement has a duty to mitigate damages. Restatement (Second) Contracts §350. For example, the employee who has been wrongfully terminated must seek other employment; the lessee of a commercial lease who is wrongfully evicted must seek another location for its business; and the lessor of an automobile that is repossessed prior to the expiration of the lease must attempt to lease or sell the automobile.
The rationale which the case law offers for treating lease agreements different from other contracts is based on the characterization of a lease agreement as a transfer of an interest in real property
. During the term of the lease, the tenant is the owner of a property right. Consequently, the landlord should not be permitting a third person to occupy the premises. See Annotation, Landlord's Duty, on Tenant's Failure to Occupy, or Abandonment of, Premises, to Mitigate Damages by Accepting or Procuring Another Tenant, 21 A.L.R.3d 534, 548-49 (1968).
Since the common law characterized a leasehold
interest as a property right, under the common law a landlord could not terminate a tenant's lease during its term even for nonpayment of rent. The landlord was required to await the expiration of the term before gaining possession of the premise. The landlord's remedy during the term of the lease was to recover the rent that was due through a contract action. Clark v. Everly, 8 Watts & Serg., 226, 230 (1844).
Legislation has altered the common law by permitting landlords to obtain possession of the property during the term of the lease for nonpayment of rent. Consequently, the rationale for the case law relieving the landlord of any duty to mitigate damages--the absence of the ability to permit a third person to occupy the premises--no longer exists. Since the tenant's right to occupy the premises is now dependent on compliance with the promise to pay rent, the lease agreement is virtually identical to any other contractual relationship.
Also, at least for residential leases, Pennsylvania case law now treats lessors in the same fashion as any other businesses which provide goods and services to consumers. In Commonwealth v. Monumental Properties Inc., 459 Pa. 450, 329 A.2d 812 (1974), the Supreme Court of Pennsylvania held that the Unfair Trade Practices and Consumer Protection Law covers the leasing of residential property. The rationale for the opinion was that contemporary leasing of residences envisioned a landlord exchanging a bundle of goods and services for the periodic payment of rent. The court said that the purchaser of this bundle of goods and services (the tenant) “is as much a consumer as is the purchaser of an automobile, household appliance, or any other consumer good.” Id. at 468, 329 A.2d at 821. (footnote omitted)
In Pugh v. Holmes, 486 Pa. 272, 405 A.2d 897 (1979), the Supreme Court of Pennsylvania abolished the doctrine of caveat emptor as applied to residential leases and held that a warranty
of habitability by the landlord will be implied in all such leases. The rationale for the opinion was that a residential lease “is in the nature of a contract and is to be controlled by principles of contract law.” Id. at 284, 405 A.2d at 903. The court also ruled that since the lease is a contract, traditional contract remedies will govern the enforcement of this implied warranty of habitability.
*5 Since Commonwealth v. Monumental Properties and Pugh v. Holmes establish that the principles of contract law, including contract remedies governing the breach of contractual obligations, govern residential leases, I find to be valid the tenant's defense that the landlord failed to take reasonable measures to mitigate damages.