Joseph William Singer

The Ohio Supreme Court held that a tenant has a right to receive visitors. Landlords have no right to stop third parties from entering the leased premises at the invitation of a tenant. A visitor who has a tenant’s permission to enter has not committed a criminal trespass just because the landlord has sought to bar that person from the property. State v. Randolph, 2023 WL 9007535 (Ohio 2023). Oddly, however, the court seemed to suggest that the landlord might have the power it the landlord retained the power in the lease. This later point, however, was dicta and the court was not confronted with a landlord who doesn’t want tenants to have friends. Most courts would find such a covenant to violate public policy. The landlord has the right to exclude people for valid business reasons but has no power to determine who tenants invite into their homes.

The Supreme Judicial Court ruled that a landlord was entitled to five years of rent upon the tenant’s breach in accord with a rent acceleration clause in the lease, even though the landlord was able to quickly find a replacement tenant. Cummings Props., LLC v. Hines, 217 N.E>3d 604 (Mass. 2023). The court believed the amount of the liquidated damages was not an unreasonable estimate of the costs of breach, and that it did not matter how much the damages actually were, in other words, how quickly the landlord was able to relet the premises. The court found, unlike many other courts, that the remaining rent is per se a reasonable estimate of the damages from breaching the lease regardless of how easy it is to find a replacement tenant. Id. at 610.

When a tenant pays rent late habitually and the landlord does not object, courts will generally not allow eviction because the landlord’s actions have shown that the late payments are not material. It is as if the terms of the agreement were renegotiated. But what happens if the landlord does object and even imposing penalties, as allowed in the lease, for the late payments? Can longstanding late payments justify eviction then? One might think the answer is yes because the timing of rental payments is generally thought to be a material term of the rent agreement. But a Massachusetts courts refused to allow eviction of a commercial tenant (a restaurant) in these circumstances. Varano v. PDJM Land Trust, LLC, 230 N.E.3d 1060 (Mass. App. Ct. 2024). The court found that the rent payments were usually only a few days late, although sometimes as much as a few weeks. The court …

Late rent payments may not justify eviction Read More »

While it is settled now in almost all states that residential landlords have a duty to mitigate damages by attempting to relet the premises if the tenant leaves before the end of the lease term, courts are not in agreement about whether the same principle applies to commercial leases. When there is a duty to mitigate, it is generally nondisclaimable. Thus a liquidated damages clause that requires a defaulting tenant to immediately pay the rest of the rent due for the rest of the lease term will not be honored if it exceeds the amount of damages that would accrue if the landlord had made reasonable efforts to relet the premises. But Massachusetts courts do not apply this principle (either the duty to mitigate or the nonenforcement of liquidated damages clauses) in the context of commercial leases. See Cummings Props, LLC v. Hines, 217 N.E.3d 604 (Mass. 2023) (upholding a …

State courts disagree about whether commercial landlords have a duty to mitigate damages Read More »