by AskTheLawyers.com

2/16/01

What can a landlord do when a commercial tenant moves, abandoning the leased premises before the end of the lease? Under what circumstances can a commercial tenant be held liable for unpaid rent for a period of time when he or she was not actually using the leased premises? Commercial leases are contracts. When disputes arise, the courts will carefully review the actual terms of the lease contract and enforce the agreement of the parties. In the absence of clear provisions of the lease to the contrary, certain general legal principles control commercial leases. Commercial leases often extend over longer periods than do residential leases; 5- or 10-year terms are commonplace. If a tenant has not substantially breached the lease, a landlord is not entitled to cut the lease term short unless the clauses of the lease specifically grant such a right. Likewise, the tenant cannot simply end the lease before its expiration unless the landlord consents. Surrender: Where a commercial tenant leaves a leased premises before the expiration of the lease term, the tenant can be relieved of any further liability under the lease if the landlord accepts the "surrender" of the leased premises. When a landlord re-rents the premises, or changes the lock, or puts the premises to his or her own personal use, the court may find that the landlord accepted the premises as surrendered. Abandonment: Alternatively, if the tenant still has physical access to the premises or if the landlord engages in only inconsequential use of the premises, holding possession only to safeguard the property from damage or destruction, the tenant will be found to have "abandoned" the property. Where a tenant abandons a leased premises without the landlord's acceptance of surrender, the tenant may be held liable to the landlord for all the monthly rent for the rest of the entire period, together with any penalties or late charges provided for by the lease terms. While most landlords will immediately and actively seek a new tenant, Pennsylvania law currently provides that the landlord is not actually obliged to reduce his or her damages by finding a new tenant. Negotiating Terms: If you are entering into a commercial lease, you should assume that you will have to stay in possession of the premises for the entire lease term. It is wise to include in the lease a clause that requires the landlord to "mitigate damages" by actively seeking a new tenant if you unexpectedly find yourself unable to honor the length of the lease. If you abandon a premises under a commercial lease, try to secure your landlord's acceptance of your surrender of the premises as it will absolve you of the obligation to pay future rent. If you have leased commercial space to a tenant, be very clear about your intentions if the tenant moves out. If you intend to pursue rent collection, be careful about making any use of the premises for yourself. Changing the locks or occupying the space may constitute an acceptance of the tenant's surrender of the premises. While current Pennsylvania law does not require you to secure a new tenant, it is possible that in the future the courts may require commercial landlords to mitigate damages. Do not assume that you will necessarily be able to recover all your rent if you have not made a reasonable effort to re-rent the property.

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