What is the law regarding a holdover tenant?

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What is the law regarding a holdover tenant?

We are unable to move out on the termination date of our lease due to circumstances beyond our control. We’re trying to find somewhere to move and have asked our landlord for 1 more month only. However, they have already re-let the property and say we would be in a “holdover” situation. They claim rent for the holdover period will increase by 25% over the then existing rent, without notice and subject to their mitigation duties, we’ll be liable to them for all rent for the full term of the previously signed leas (because the new resident can’t occupy because of the holdover).

Asked on February 25, 2012 under Real Estate Law, Washington

Answers:

S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

When there is a holdover tenant, the landlord can either evict the tenant or if the landlord accepts payment of rent from the tenant, a month-to-month tenancy will be in existence on the same terms as the original lease.  A month-to-month lease only requires thirty days written notice to terminate the tenancy.

As for the landlord's argument about mitigating damages, mitigating damages is minimizing damages, not holding you liable for the entire term of the lease.  Even if the landlord claims you are liable for the entire tem of the lease, if you move out prior to that time, your obligation to pay rent would end when the place is re-rented.  If the original new tenant is no longer interested in renting the place, to mitigate damages the landlord has to make reasonable efforts to find another tenant.  The landlord can't let the place remain vacant and hold you liable for the rent for the balance of the term of the lease.  Once the place is re-rented, your liability for the rent ends.  Reasonable efforts on the part of the landlord to find another tenant will be determined by what other landlords in the area are doing to attract new tenants; for example, posting a sign on the premises advertising the vacancy, advertising in the newspaper or online or in a local rental guide.  If the landlord fails to make reasonable efforts to re-rent the place, the landlord has failed to mitigate damages and the landlord's damages will be reduced accordingly.


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