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Is it time to redefine these classic property concepts?
Elena Marty-Nelson
Professor of Law
NSU Law Center
Traditionally a landlord had three options
if a tenant abandoned the leased premises
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At common law, landlord was under no duty to
mitigate damages upon abandonment of a
residential lease by a tenant.
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Has the concept of abandonment
been replaced by a modern day
concept of early lease termination?
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Delaware §5314 – Tenant’s Right to Early Termination -- offers
several “lawful elections” for a tenant’s right to terminate
including:
 Tenant enters into military service for the United States
 Tenant is victim of domestic abuse, sexual offenses, stalking
 Change in location of tenant’s employment
 Tenant accepted into senior citizen housing
 Tenant’s serious illness or death requires a change in
location
 Tenant accepted into subsidized private or public housing
 Death of Tenant allows Surviving Spouse or PR to Terminate
Servicemembers
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To provide protections for
servicemembers in the
event that their military
service impedes their
ability to meet financial
obligations incurred
during periods of
military service.
Federal Law: SCRA
State Laws: AR, DE, GA, FL,
IL, KS, LA, MD, MO, NC, NY,
OR, PA, TX, VA, WA
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The Federal Government has created various protections for
servicemembers in the Servicemembers’ Civil Relief Act (SCRA).
SCRA allows for a servicemember to terminate his “residential
lease” (defined broadly) early when:
 Tenant entered into lease prior to joining the military or
 Tenant entered into a lease while in the military if
 tenant received orders to deploy for a period of at least 90
days, or
 received orders for a permanent change of station
Several states have additional statutes for servicemembers
Florida
Georgia
If servicemember becomes
eligible to live in government
quarters, he can terminate his
lease.
If a servicemember becomes
eligible to live in government
quarters, he can terminate his
lease only if failure to do so would
result in a forfeiture of his basic
housing allowance.
A servicemember who is
prematurely or involuntarily
discharged or released from
active duty or state active duty
may terminate his/her lease.
Georgia does not allow a
servicemember to terminate his
lease under this circumstance.
Beyond SCRA, under which circumstances should
states allow early residential lease termination by
servicemembers?
All deployments?
On-base housing becomes available?
Expand term “servicemember”
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ENFORCEMENT:
Servicemembers’ rights to commence a civil action to enforce
protections afforded them under the SCRA
Military legal assistance office?
U.S. Attorney General is authorized to commence a civil action to
enforce provisions of the SCRA.
 United States v. Empirian Property Management Inc. (D. Neb.)
(March 1, 2012)
 DOJ action for Landlord’s refusal to terminate residential leases
entered into by active duty members of the US Air Force.
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What is the scope of the servicemember/tenant’s termination
right?
 Return of Security Deposit?
 Complete Release of Obligations?
 Court’s discretion to relieve guarantors? (equitable
considerations)
Practical effect of landlord’s rights regarding SCRA on
servicembers’ protections?
 Balance of the Equities?
 Validity of waivers of rights and protections by
servicemembers?
Domestic Violence Victims
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What
is the definition of domestic
violence?
AZ, CA, CO, CT, DE, DC, IL, IN,
MD, MI, MN, NC, ND, NJ, NY,
OR, TX, UT, WA, WY (HI, OH, RI,
TN)
An Analysis Across the Country
 Landlord
Incentives
 Tenant-Victim
Incentives
 Proactive
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or reactive approach?
Protective order?
 Should a state require verification or documentation
of domestic violence in some respect?
Attack?
 Does there have to be an actual attack before a
lease can be lawfully terminated?
 Imminent
Threat?
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Notice required by the victim-tenant to the landlord?
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What obligations should the tenant continue to be liable for
and what rights should be available to the landlord,
following a early termination?
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Should the protection balance the safety and economic needs
of the victim-tenant with the economic expectations of
landlords?
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Tenant-Victims need for protection
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Landlords right to enforce their contracts?
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Societal goals?
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What is the future of Abandonment & Mitigation?
o Early Lease Terminations?
Elena Marty-Nelson
Professor of Law
NSU Law Center
3305 College Avenue
Fort Lauderdale, FL 33314
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nelsone@nsu.law.nova.edu
954-262-6186
SSRN Author Page: http://ssrn.com/author=500647