1.The Defaulting Tenant in Possession
a.Common Law Rule was that the landlord may retake the leased premises from tenant in possession (called self-help) without incurring liability for wrongful eviction when the following conditions are met:
i.Landlord is legally entitled to possession, such as where a tenant holds over after the lease term or where a tenant breaches a lease containing a reentry clause; and
ii.The reentry means are peaceable.
b.Modern Rule is that the landlord must use legal means (i.e. go to a court) to retake possession by defaulting tenant.
2.The Defaulting Tenant Who Has Abandoned Possession
a.The landlord has a duty to mitigate the loss caused by the defaulting tenant
i.Common Law said that the landlord had not duty to mitigate the loss from the default
ii.Modern view is that the landlord must make reasonable efforts to re-let in order to mitigate damages against the defaulting tenant who vacates
1.Occurs most often in times of high vacancy rates
2.Application of contract rule for damages base on fairness
3.View holds that burden to avoid waste best shifted to landlord b/c he is best suited to rent
4.Landlord only required to treat the vacated apartment as one of his vacant stock of apartments
5.Plaintiff has burden to prove landlord didn’t reasonably try to re-let premises