Legal Question in Landlord & Tenant Law in Wisconsin
duty to mitigate defense for unpaid rent.
I am a law student and I am helping my sister with a small claims suit she has filed against her in Wisconsin.
The complaint is for about $3000 in unpaid rent by her former roommates. They signed a joint and severally liability lease. My sister had left the apartment before the end of the lease and stopping pay rent. The LL charged the roommates at the end of the lease for my sister's unpaid rent and they paid under the joint and several clause. Now the roommates are suing for the money. I was considering using a Duty to Mitigate defense by re-letting the space in order to reduce or bar the claim amount. In Wisconsin, the LL has a duty to mitigate unpaid rent money when a Tenant abandons, however the suit isn't against the LL. Can I transfer the duty to mitigate by reletting the space onto the jointly and severally liable roommates? If so can you give me some authority for the duty to mitigate argument? Thanks.
1 Answer from Attorneys
Re: duty to mitigate defense for unpaid rent.
If your sister was a sub-lessor of her roommates, then that would be the easiest way to get rid of any duty to mitigate. Likewise, if your sister came to an understanding with the roommates that she was leaving and they released her from any obligation, that would be a strong argument (although likely barred if not in writing). I cannot speak to Wisconsin law, but I recommend using your Westlaw account to do a search for "duty to mitigate" in Wisconsin.
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