No Legal Duty to Mitigate Damages in Retail Lease

The Court of Appeals affirmed summary judgment in favor of a shopping center landlord in its suit for breach of two shopping center leases.  Sirdah v. North Springs Assocs. LLLP, Case no. A10A0329, Decided June 8, 2010.  The court reiterated that, with two limited exceptions, the duty to mitigate under OCGA § 13-6-5 does not apply to lease contracts.   In Georgia, "if a tenant abandons lease premises without authorization prior to the expiration of the term, the landlord is not required to mitigate damages by reletting the premises."  Allen v. Harkness Stone Co., 271 Ga. App. 397, 400, 609 SE2d 647 (2004).  The two exceptions to this rule are (1) if the landlord accepts the tenant's surrender, and (2) if the tenant successfully terminates the lease.  If either of these two things take place the landlord must take reasonable steps to re-lease the premises.  In this case, the tenant argued that the landlord had accepted surrender of the leased premises by acknowledging in a demand letter that the tenant had "given up possession of the premises through his return of his key" and that landlord had "accepted same."  The court was not persuaded by this argument.  It is settled law that the mere taking of the keys to the leased premises by a landlord does not give rise to an inference that the landlord accepted surrender.