What constitutes a reasonable effort to rerent under Fox v. Roethlisberger? MI/Flint

[J.Arthur]

So, I broke my lease early. There were bedbugs, and going by the reviews I think the apartment next to me just wasn't treated well enough. My landlady treated them, but wouldn't budge on when or how often when I provided details about my surgery that would make my cooperation impossible. I asked if I could partially compensate her, and long story short, she threw the offer in my face. I posted an ad on craigslist to find a new tenant, and I've gotten a few responses. I vacated my unit on September 2nd ish, and let her know to post the listing asap. She still hasn't for my apartment. On me asking why there were no pictures at all and why my unit wasn't listed, let alone a one bed on any site except one, she said that it was because of the "condition that I left my apartment in". There were a few holes in the wall and a couple scratched floorboards, but nothing that would require more than two weeks to reasonably fix and clean, let alone a month. I asked her to even just list my unit with an expected availability, which is definitely something that she has done in the past and something that every landlord does in my area. What should I do? Should I take her to small claims court, or just stop paying rent, or?... I floated November 1st, but she hasn't texted back.

 

[adjusterjack]

Fox v. Roethlisberger isn't going to help you because the appellate court ruled in favor of the landlord by ruling that the landlord did, indeed, mitigate even though it took 9 months to rerent.

Fox v. Roethlisberger :: 1957 :: Michigan Supreme Court Decisions :: Michigan Case Law :: Michigan Law :: US Law :: Justia

You, OTOH, are looking to determine if she is required to mitigate now, and in what manner.

This more recent decision may clarify things for you:

M & V Barocas v. THC, Inc., 216 Mich. App. 447 | Casetext Search + Citator

I don't know what "floated November 1st" means. But if it means that you have paid rent through November 1st or November 31st then the landlord has no obligation to mitigate because you haven't breached your agreement to pay rent. Whatever duty the landlord has for mitigation doesn't start until you are in breach (which you aren't).

 

[J.Arthur]

Fox v. Roethlisberger isn't going to help you because the appellate court ruled in favor of the landlord by ruling that the landlord did, indeed, mitigate even though it took 9 months to rerent.

Fox v. Roethlisberger :: 1957 :: Michigan Supreme Court Decisions :: Michigan Case Law :: Michigan Law :: US Law :: Justia

You, OTOH, are looking to determine if she is required to mitigate now, and in what manner.

This more recent decision may clarify things for you:

M & V Barocas v. THC, Inc., 216 Mich. App. 447 | Casetext Search + Citator

I don't know what "floated November 1st" means. But if it means that you have paid rent through November 1st or November 31st then the landlord has no obligation to mitigate because you haven't breached your agreement to pay rent. Whatever duty the landlord has for mitigation doesn't start until you are in breach (which you aren't).

I understand where the confusion is; I floated November first as a date that she could list the apartment on, if she really is still doing renovations/repairs. I paid through October, and the lease ends in April. She said verbatim that I’m “not ending my lease early”, and that she was generous in allowing me to funnel her potential tenants. Do you think not paying her for November would be a way to force something to happen, if I don’t find a tenant that she likes?

 

[adjusterjack]

I paid through October,

Then the mitigation clock doesn't start running unless you are in breach on November 1.

But if you read Barocas you will see that if she doesn't accept your surrender of the premises (which she apparently hasn't) she will have no duty to mitigate and can continue to seek collection of rent until the end of the lease.

Do you think not paying her for November would be a way to force something to happen, if I don’t find a tenant that she likes?

Actually, I do. As a former landlord I can tell you that a landlord would have to be nuts to let a rental sit empty for half a year without any rent money coming in. Too risky. Not only no money but there is the risk of vandalism and she would not be able to sue until the lease was up and could end up with an uncollectible judgment.

I think no money coming in would compel her to go in, clean, repair, and do bedbug control. That activity could be construed as accepting your surrender of the premises. It could still legitimately take her a month or more to get the place rerented (been there, done that) so you may still owe her something, but only up until the date of the rerent.