Landlord Remedies
| Publication year | 1976 |
| Pages | 1257 |
| Citation | Vol. 5 No. 9 Pg. 1257 |
1976, September, Pg. 1257. Landlord Remedies
During the economic growth and expanding regional development of the late 1960's and early 1970's, a landlord's concerns over remedies against a tenant who abandoned the leased premises or had to be dispossessed from them may not have been significant. Another tenant could likely be found at the same or increased rent. However, when leasable space is not at a premium, or when the lease is long-term, the landlord and his attorney should be concerned with the availability of remedies in the event of tenant breach.
This article discusses landlord remedies in two situations: the first, where the tenant has abandoned the leased premises prior to the end of the lease term; and the second, where the tenant has breached the lease and must be removed from the premises through legal proceedings. The rules which apply in these situations are significantly different, and the failure to differentiate between the two has caused confusion in the drafting of leases and in the relief to which the landlord may be entitled.
This confusion may in part be caused by the existing law of landlord and tenant being a "blend" of property concepts and contractual doctrines.(fn1) At common law, a lease was a conveyance of an estate of real property for a term less than that for which the lessor was entitled to the property.(fn2) Yet the modern lease seems more like a bilateral contract than a conveyance, and the courts, in the development of the modern lease, have increasingly applied contractual principles in defining the parties' respective rights.(fn3) A recent Colorado case, discussed within, indicates that the Colorado Supreme Court may be moving toward increasing application of contractual principles to the respective rights of tenants and landlords.
The general rule in Colorado, as well as in most other jurisdictions, is that termination of a lease by the landlord, by eviction of the tenant or otherwise, relieves the tenant from all liabilities to accrue in the future, including rent, except where the parties have by express agreement contracted to the contrary.(fn5) Obviously, the landlord's interest is to continue the tenant's liability when the tenant has abandoned the premises and no substitute tenant can be found at an equal or greater rent or when the tenant has breached the lease and must be removed through judicial proceedings. Consequently, the lease provisions delineating
the landlord's remedies in these situations are of the utmost importance.
The rule in Colorado is that upon abandonment of the leased premises by the tenant, the landlord has the choice between leaving the premises vacant and suing for rent periodically as the rent becomes due for the balance of the term or terminating the lease and entering a claim for the rent up to the date of abandonment and the acceptance of possession. The landlord may not take possession of the premises and at the same time insist that the lease is in force and recover rent for the balance of the term.(fn5) Under most circumstances, reentry of the leased premises by the landlord after abandonment constitutes eviction of the tenant and relieves the tenant from all liability for rent to accrue in the future.(fn6) However, this rule can be modified when the parties to the lease have by express agreement contracted to the contrary.
The Colorado courts have upheld lease clauses providing that the landlord can, upon abandonment of the leased premises, reenter and relet the leased premises for the benefit of the tenant without effecting a termination of the lease and apply any rent received as a result of that reletting to the amounts due the landlord from the tenant under the lease.(fn7) Even if the lease itself does not provide for the landlord to reenter the leased premises and relet on behalf of the tenant, a subsequent agreement between landlord and tenant for reletting the premises on behalf of the tenant is also effective to avoid the general rule that reentry by the landlord terminates the lease.(fn8) In the absence of a clause or subsequent agreement authorizing reentry upon abandonment, it is not clear if a landlord could reenter without terminating the lease; however, it would seem doubtful.(fn9)
When the landlord reenters the leased premises after abandonment under a lease clause authorizing such action, the object is to not terminate the lease. Consequently, in...
To continue reading
Request your trial