the time where they actually executed the proper we think this would be a trial issue as to what if any wrong should be should be received for a period when the property could not be opportunism restaurant starting windfall from being able to collect rent from a restaurant user at the same time they're telling their neighbor this can be used as a restaurant if you so grab it from him you do it no longer is that use getting to the legal reasons why the counterclaim an affirmative fences fail it's because in an atom in a simple word it's a matter of time they left the property they abandoned it they chose to a for additional relief on remand after the declaratory judgment was resolved wherein they admit that they left the property and banned it in december of two thousand not so that's not an issue but we also know from an affidavit that they filed contamination even though they were fully apprised of that for years before they left because in his words hartman this is a quote from the record c one forty eight hartman determined that the restaurant's performance did not more  the property or requesting the burger king extend the franchise agreement now a counter claim as counsel just indicated is it is alleged to be based upon this notion of fraudulent concealment they open up or the morning they close every night they go what's going on now and that's that's the reality but from a clean perspective the reason why fraudulent concealment fails because they don't knew about the contamination until long after they packed their bags and left how do we know that because they attached a letter was my letter the attached it to the power plant and they say this is the basis for our contention that there are vapors in the building and that letter makes it very clear that the palmers learned about this for the first time after hartman had left the property and they tried to sell the property as they  same thing no or what environmental contamination banks in this environment are afraid of environmental contamination not surprise so what's the back not much the first knowledge that opposed to this you know cases where i represent landlords and eric used of not having done enough or not having done anything to mitigate damages never before have a hammer who's been punished for actually many didn't damages now this whole commercial frustration look at all the commercial frustrations cases so many case the tenant could not compile the property for the purpose of the lease ok and here we don't have that we have after they've already abandoned a property a while they were occupying it because owning department didn't come in and put a closed sign on the door boarded up while they were occupying it is all came up after the laugh in your honor was right again getting at the fundamental rights and obligations of the way you were once the tenant abandons the property of the land or has the right to retake possession with that right comes that duty that do read to mitigate and this heart w really want to screw her to believe that it was wrong for the landlord to fix the property to clean up the mast and say save all you know after we left you know we would've been able to get to the building because it was torn five thousand a month suppose they did find a bowling alley as your honor brought out and they're willing to pay three thousand a month imagine the insult to the former tenant their pay in rent albeit only the difference that two thousand a month w would allow a tenant to escape it's not otherwise obligation to pay rent well we talked a little bit about constructive action that doesn't work here because they were not dispossessed of the property voluntarily left before anybody knew about this environmental thing but one thing that i would like it that struck me while i was listening to counsel's argument that i would really like the court to think about article five of the lease it's a triple not least so this shouldn't come as a big surprise but it's critical here article five  they absolutely have rights of action against the contaminate or but but the we specifically says unless the landlord himself causes the damage to the property it's completely the tenants responsibility  this months after we'd laugh for five months during the process of selling the property and they made that allegation very specific and attached the latter that allegedly gives rise to the knowledge issue but again i'm not just saying i'm not coming up and offering evidence in response no to a six with emotion i'm saying this is in the four corners of opinion itself is the attachment as an example so this is a classic just like the new tenant would necessarily prevent you all tenant from continuing to possess the property the new owner prevents the old the former tenant from continuing to possess the property but that's not a problem here because fourteen beach three of our voter on information and believe the palmers were aware of the extent of the contamination and of the fact that the demise premises run suitable for use as a restaurant at least as a release december two thousand the least of and in the least require you both to pay for anything and if the driver and then the headache would fall on your client then either fix it and then sue the guy next door to recover your