## Facts

- A prospective tenant signed a two-year residential lease for an apartment in Hackensack, New Jersey, and paid the first month’s rent and a security deposit.
- Before taking possession, the tenant notified the landlord in writing that his planned marriage was canceled, he lacked funds, and he requested release from the lease; he asked the landlord to re-let the unit and apply his payments toward any costs.
- The landlord did not respond and did not treat the apartment as part of his available vacancy inventory.
- During the lease term, a prospective renter requested that specific apartment but was told it was “already rented” and was not shown the unit.
- The apartment remained vacant for more than a year and was re-rented in August 1973.
- The landlord sued to recover rent allegedly due for the lease term, offset by rent received from the later tenant.
- The trial court found for the tenant based on a mitigation duty; the Appellate Division reversed based on prior precedent that imposed no duty to mitigate.
- The state supreme court consolidated this appeal with a companion landlord-tenant case presenting the same mitigation question.

## Issues

1. Whether a residential landlord seeking damages after a tenant’s default or abandonment must make reasonable efforts to mitigate damages by attempting to re-let the premises.
2. If a mitigation duty exists, which party bears the burden of proving reasonable efforts to re-let.

## Decision

- The court reversed the Appellate Division and held that a residential landlord must make reasonable efforts to mitigate damages by attempting to re-let premises wrongfully vacated or defaulted upon.
- The court overruled prior New Jersey authority to the extent it allowed landlords to recover rent without attempting mitigation.
- The court held the landlord bears the burden of proving reasonable diligence in attempting to re-let to mitigate damages.
- The cases were remanded for proceedings to determine damages under the mitigation standard, including whether the landlords made reasonable re-letting efforts.

## Legal Principles

- A residential lease is treated in significant part as a contract, so ordinary contract mitigation rules apply after breach.
- A landlord must take reasonable steps to re-let a wrongfully vacated unit, treating it as part of the landlord’s regular vacant inventory and seeking fair market rent.
- The landlord need not accept below-market rent, accept an unsuitable replacement tenant posing undue risk, agree to materially different lease terms, or make unreasonable alterations to the premises.
- The landlord bears the burden to prove reasonable diligence to re-let, because the landlord controls the relevant information (marketing, showings, application handling, and acceptance decisions).
- Failure to make reasonable re-letting efforts limits recoverable damages to losses that could not reasonably have been avoided.

## Conclusion

The court required residential landlords to mitigate damages after a tenant’s default by making reasonable efforts to re-let at fair market value and assigned to landlords the burden of proving those efforts, rejecting the prior rule that allowed landlords to let damages accrue without re-letting attempts.


Sommer v. Kridel, 74 N.J. 446, 378 A.2d 767 (N.J. 1977)