Lynch, Larner and Fulop. The opinion of the court was delivered by Larner, J.A.D.
Plaintiff brought this action to recover unpaid rent on a lease which commenced February 1, 1973 and terminated on January 31, 1975. Defendant vacated the premises on or about February 1974 and paid no rent thereafter. The trial judge entered summary judgment for plaintiff for nine months' rent amounting to $4,050 plus interest.
Factual defenses asserted by defendant in his pleadings were unsupported by affidavits and were therefore ignored as frivolous. The sole debatable issue before the trial court was the legal validity of the defense that plaintiff failed to mitigate damages through efforts to re-rent the premises. The judge determined that this defense was not available as a matter of law and that summary judgment in favor of plaintiff was therefore appropriate.
The single issue on this appeal focuses upon the status of the law respecting the availability of the defense of mitigation
in a landlord-tenant relationship governed by a lease such as the one controlling this litigation.
The lease herein contained a provision that the tenant was not to assign or sublet without the written consent of the landlord. It also gave the landlord the right to re-enter and re-let the premises as the agent of the tenant -- a right which could be exercised at the option of the landlord.
The state of the law in New Jersey at the present time mandates the conclusion that with a lease provision against assignment, abandonment by the tenant permits a landlord to leave the premises vacant for the balance of the leasehold term and recover the total accrued rent. He has no duty to mitigate damages -- a doctrine which is universally applicable to ordinary contract relationships. Joyce v. Bauman , 113 N.J.L. 438 (E. & A. 1934); Muller v. Beck , 94 N.J.L. 311 (Sup. Ct. 1920); Zucker v. Dehm , 128 N.J.L. 435 (Sup. Ct. 1942); Heckel v. Griese , 12 N.J. Misc. 211, 171 A. 148 (Sup. Ct. 1934); Heyman v. Linwood Park , 41 N.J. Super. 437 (App. Div. 1956); Weiss v. I. Zapinski, Inc. , 65 N.J. Super. 351 (App. Div. 1961).
Defendant concedes that such is the status of the law in this State and in a majority of jurisdictions. He urges, however, that this rule of law is anachronistic and that modern treatment of landlord-tenant rights and liabilities points to the need to equate a real estate lease with an ordinary contract in order to permit the defense of mitigation.
A perusal of the applicable precedents reveals that the refusal to impose upon the landlord the duty to mitigate damages stems from traditional concepts of real property law. It has been rationalized on the basis that the lease conveys a property interest to the tenant and that the duty to pay the rent for the full term is absolute as the purchase price for that interest. E.g., Sancourt Realty Corp. v. Dowling , 220 App. Div. 660, 222 N.Y.S. 288 (Sup. Ct. 1927); 1 American Law of Property § 3.11 (1952).
If we were faced with this issue untrammeled by controlling precedents, we would hold that ordinary contract
principles should be applied and that a tenant may seek to prove failure to mitigate in reduction of damages with the burden ...