Do landlords in Texas really have a duty to mitigate?

Question

Texas State Legislature has the following Statute on the books:

http://www.statutes.legis.state.tx.us/Docs/PR/htm/PR.91.htm

Sec. 91.006. LANDLORD'S DUTY TO MITIGATE DAMAGES. (a) A landlord has a duty to mitigate damages if a tenant abandons the leased premises in violation of the lease.

(b) A provision of a lease that purports to waive a right or to exempt a landlord from a liability or duty under this section is void.

However, I spoke with a number of corporate landlords in West Campus, Austin, TX, and at least a quarter of them seem to be very surprised about any such law.

Those surprised landlords do, however, seem to admit both of the following:

• that some of their tenants did most likely already remove all of their belongings about mid-May and possibly already returned the keys prior to the standard July 31 move-out date (end-of-July move-out (and mid-August move-in) are standard amongst most apartments in the area)

• those same tenants that have officially moved out are still happily paying rent (having clearly declared such an intent when returning the keys), and are not specifically interested in subletting (possibly because of the hefty penalties as below).

Thus, the aforementioned landlords do not entertain any sublet requests from the walk-ins interested in a summer sublet, unless a prior contact with an existing tenant was made by such a walk-in.

Is this legal? Doesn't this have the effect of the tenant effectively waiving their rights, which explicitly aren't supposed to be waiveable? Or, alternatively,

• can a contract really be drafted to such an effect that removing all personal effects from the room is not deemed abandonment and does not violate the lease as long as "rent" is paid?

• can a landlord refuse to accept keys prior to the end of the lease term, or, if keys are nonetheless submitted to landlord's possession, pretend that the keys are merely submitted for safekeeping, even when it's perfectly clear that keys were submitted at the end of the Spring term in mid-May, and the tenant will not be staying the rest of the lease until end of July?

I've also noticed that at least some landlords have substantial penalties should one wish to argue abandonment (at which point "rent" becomes "damages"):

• accelerated rent (which is a favourite pastime for rental agreements in Texas, even though the legality of it is unclear);

• subletting fees, equivalent to as much as 85% of one month's rent, and payable regardless of the outcome of the subletting.

Doesn't such excessive penalties effectively force scared tenants to pretend that they're staying over the summer until the very end of the lease, even if they're leaving two and a half months early in a relatively cold market?

Answer 1

If you have already paid out the lease, there is nothing for the landlord to mitigate. Under abandonment, the rent is not paid for the term of the lease.

The mitigation statute is to dampen excessive, unnecessary damages. If you pay your rent, there are no damages. (If you do not pay, the landlord would have some responsibility to entertain new lessors, thus mitigating damages - the amount the initial lessor would have to pay for the term of the lease + in some jurisdictions the lessor would have to pay any additional costs the lessor incurs while mitigating such as advertising costs.)

You might be able to sue to recover if you paid out your lease, moved out and the landlord obtained a new tenant before your lease would have expired since you would have a right to the property for the term of the lease. This would be a case when accelerated rent would be an issue. If you paid out your lease, you have a right to that property. In the case of accelerated rent, you have paid out your lease.

Since the Texas Property Code does not define abandonment, it is up to either the individual lease or a judge to define it. It is important for a landlord to act carefully when declaring abandonment, especially if the lease does not define it. If nothing exists in the lease about abandonment and the landlord removes all of the tenant’s property, a court could consider it to be an illegal eviction in violation of the tenant’s rights. This, of course, would be judged on a case-by-case basis.

Abandonment is defined under the TAA lease as when:

Everybody appears to have moved out in the landlord’s reasonable judgment; Clothes, furniture, and personal belongings have been substantially removed from the dwelling; and No one has been in the dwelling for five consecutive days while the rent is due and unpaid. or A dwelling is abandoned 10 days after the death of a sole resident. The TAA lease continues: abandonment ends the tenant’s right of possession for all purposes and gives the landlord the immediate right to clean up; make repairs; relet the dwelling; determine any security deposit deductions; and remove property left in the dwelling. See also ATC’s Security Deposit Law brochure.