Sirdah v. North Springs Associates, LLLP, No. A10A0329, 2010 WL 2278184 (Ga. App. June 8, 2010), doesn’t blaze any new trails. It takes the facts and applies pretty much black letter law: e.g., a landlord is not required to mitigate damages upon a tenant’s abandonment of the premises unless the landlord accepts the tenant’s surrender or the tenant successfully terminates the lease; and a landlord’s merely taking the keys upon the tenant’s proffer does not constitute the landlord’s acceptance of the tenant’s attempted surrender. The case is helpful, though.

First, I think it gives a pretty good supporting citation for what is required for a landlord to make out a prima facie case for a tenant’s default and liability on summary judgment. Sirdah suggests that a landlord makes the requisite showing with evidence of (1) the existence of the lease, (2) the tenant’s default and (3) the amount of the resulting indebtedness owed by the tenant to the landlord. The case does not come right out and expressly say that, though, so it deserves a “see” cite.

Second, the Court details the landlord’s evidence. The landlord attached to its complaint copies of the leases at issue and of its demand letter (more discussion on that below). For purposes of its summary judgment motion, the landlord relied on the complaint and its attachments, an affidavit of one of its agents authenticating the leases and other business records reflecting the amounts owed under the leases, and admissions in the tenant’s discovery responses. In contrast, the tenant submitted no affidavits or other evidence. The Court noted that “evidence must be competent and admissible to raise a genuine issue of material fact on review of a summary judgment motion.” The landlord’s case satisfied that requirement. The tenant’s did not. As a result, the Court refused to consider some of the tenant’s assertions and found the tenant liable.

Third, the case highlights the usefulness of well-drafted demand letters. In response to the tenant’s delivering the keys to the landlord, the landlord sent a letter advising him that “although

[the tenant] has given up possession of the premises through his return of his key, [landlord] has accepted same without terminating the Leases.” (emphasis in original). The Court noted the italicized language in its refutation of the tenant’s argument that the landlord had accepted the surrender by acknowledging the tenant’s giving up possession and returning the keys. The demand letter strengthened the landlord’s case. It would be interesting to see if the leases contained any provision stating something like ““[n]o act by Landlord shall be an acceptance of a surrender of the Premises, and no agreement to accept a surrender of the Premises shall be valid unless it is in writing and signed by Landlord.” I routinely include this provision in leases when I’m representing the landlord. Sirdah suggests that this provision may simply be statement of the law that would control in any event. I feel better saying it.