Is it time to redefine these classic property

concepts?

Elena Marty-NelsonProfessor of LawNSU Law Center

Traditionally a landlord had three options if a tenant abandoned the leased premises

At common law, landlord was under no duty to mitigate damages upon abandonment of a

residential lease by a tenant.

Has the concept of abandonment been replaced by a modern day concept of early lease termination?

Delaware §5314 – Tenant’s Right to Early Termination -- offers several “lawful elections” for a tenant’s right to terminate including:

Tenant enters into military service for the United States Tenant is victim of domestic abuse, sexual offenses,

stalking Change in location of tenant’s employment Tenant accepted into senior citizen housing Tenant’s serious illness or death requires a change in

location Tenant accepted into subsidized private or public housing Death of Tenant allows Surviving Spouse or PR to

Terminate

Servicemember

s

To provide protections for servicemembers in the event that their military service impedes their ability to meet financial obligations incurred during periods of military service.

Federal Law: SCRAState Laws: AR, DE, GA, FL, IL, KS, LA, MD, MO, NC, NY, OR, PA, TX, VA, WA

The Federal Government has created various protections for servicemembers in the Servicemembers’ Civil Relief Act (SCRA).

SCRA allows for a servicemember to terminate his “residential lease” (defined broadly) early when: Tenant entered into lease prior to joining the military or Tenant entered into a lease while in the military if

tenant received orders to deploy for a period of at least 90 days, or

received orders for a permanent change of station Several states have additional statutes for servicemembers

Florida GeorgiaIf servicemember becomes eligible to live in government quarters, he can terminate his lease.

If a servicemember becomes eligible to live in government quarters, he can terminate his lease only if failure to do so would result in a forfeiture of his basic housing allowance.

A servicemember who is prematurely or involuntarily discharged or released from active duty or state active duty may terminate his/her lease.

Georgia does not allow a servicemember to terminate his lease under this circumstance.

Beyond SCRA, under which circumstances should states allow early residential lease termination by servicemembers?

All deployments?On-base housing becomes available?

Expand term “servicemember”

ENFORCEMENT: Servicemembers’ rights to commence a civil action to

enforce protections afforded them under the SCRA Military legal assistance office? U.S. Attorney General is authorized to commence a civil

action to enforce provisions of the SCRA. United States v. Empirian Property Management Inc.

(D. Neb.) (March 1, 2012) DOJ action for Landlord’s refusal to terminate residential leases

entered into by active duty members of the US Air Force.

What is the scope of the servicemember/tenant’s termination right?

Return of Security Deposit? Complete Release of Obligations? Court’s discretion to relieve guarantors?

(equitable considerations) Practical effect of landlord’s rights regarding SCRA

on servicembers’ protections? Balance of the Equities? Validity of waivers of rights and protections by

servicemembers?

Domestic Violence Victims

What is the definition of domestic violence?

An Analysis Across the Country

AZ, CA, CO, CT, DE, DC, IL, IN, MD, MI, MN, NC, ND, NJ, NY, OR, TX, UT, WA, WY (HI, OH, RI, TN)

Landlord Incentives

Tenant-Victim Incentives

Proactive or reactive approach? Protective order?

Should a state require verification or documentation of domestic violence in some respect?

Attack? Does there have to be an actual attack

before a lease can be lawfully terminated? Imminent Threat?

Notice required by the victim-tenant to the landlord?

What obligations should the tenant continue to be liable for and what rights should be available to the landlord, following a early termination?

Should the protection balance the safety and economic needs of the victim-tenant with the economic expectations of landlords?

Tenant-Victims need for protection

Landlords right to enforce their contracts?

Societal goals?

What is the future of Abandonment & Mitigation?

o Early Lease Terminations?

 Elena Marty-Nelson

Professor of LawNSU Law Center

3305 College AvenueFort Lauderdale, FL 33314nelsone@nsu.law.nova.edu

954-262-6186SSRN Author Page: http://ssrn.com/author=500647