Is it legal for landlords to double-dip rent payments in the form of “liquidated damages”?

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Is it legal for landlords to double-dip rent payments in the form of “liquidated damages”?

Due to a misunderstanding when we signed our lease (and, admittedly, our failure to understand the renewal clause), we unwittingly broke our lease when we moved out of an old apartment a month and a half ago. The landlord sent us a bill for 3 months rent (“liquidated damages”). This is acceptable, as this is what we agreed to in the lease. However, if there is another tenant living in the unit now, can we argue that we only owe a month and a half (while the unit sat empty), since the landlord would now be receiving double rent payments on the same unit?

Asked on July 29, 2011 Arkansas

Answers:

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Read the terms of your written lease with the landlord and yourselves in that its terms control the duties and obligations each owe to the other.

If your lease was a lease for a set term and you breached it, then you would be on the hook for the monthly amount multiplied by the months you did not pay rent less whatever monies the landlord received during this time period from another tenant.

If there was no "liquidated damages" provision in your lease, the landlord cannot double dip on amounts paid where the unit you vacated was actually occupied by a paying tenant.

Even if there was a "liquidated damages" provision in your lease as to such, it most likely is invalid as being in violation of public policy under the laws of your state.

Good luck.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

As a general matter, a landlord cannot recover rent for a breach of the lease for any periods when the apartment is in fact re-rented; that's because he has not actually suffered any damages during the re-rental period. Or to be more techical: if the new rent is lower than the rent under the breached contact, he could, for the re-rental period, receive the difference in rent, since for that time he has been damaged by not receiving quite as much as he would have in the absence of breach. But in any event, a landlord should not receive full rent from a tenant who breached at the same time that the landlord is leasing out the premises to a new, rent-paying tenant.


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