Landlord Re-Taking Property Vacated by a Tenant
Where a landlord himself has retaken a property vacated by a tenant, thus "getting the use of the premises for himself," any charging of rent after repossession is "not only illegal but wholly inequitable." Baldwin v. Lampkin, 14 Ga. App. 828, 82 S.E. 369 (1914), citing Gay v. Peake, 5 Ga. App. 583 (63 SE 650) (1909).
In Gay, for example, the plaintiff landlord allowed members of his family to occupy the property after the defendant tenants had abandoned it. Gay v. Peake, 5 Ga. App. at 584-585.
The Court held that where "the plaintiff's own testimony showed that he was not entitled to recover for the full year's rent, on account of his admitted resumption of the possession," the tenants were entitled to a nonsuit, or judgment as a matter of law. Id.
Likewise, in Brock Enterprises v. Dunham's Bay Boat Co., 292 A.D.2d 681, 738 N.Y.S.2d 760 (N.Y. App. Div. 2002), the court held that where a landlord took repossession of a boat repair facility, allowed another tenant to take possession, and began accepting rent from that tenant, the landlord's conduct "demonstrated an 'intent to terminate the lease and use the premises for (its) own benefit'" as a matter of law. Id. at 683.