While it is settled now in almost all states that residential landlords have a duty to mitigate damages by attempting to relet the premises if the tenant leaves before the end of the lease term, courts are not in agreement about whether the same principle applies to commercial leases. When there is a duty to mitigate, it is generally nondisclaimable. Thus a liquidated damages clause that requires a defaulting tenant to immediately pay the rest of the rent due for the rest of the lease term will not be honored if it exceeds the amount of damages that would accrue if the landlord had made reasonable efforts to relet the premises.
But Massachusetts courts do not apply this principle (either the duty to mitigate or the nonenforcement of liquidated damages clauses) in the context of commercial leases. See Cummings Props, LLC v. Hines, 217 N.E.3d 604 (Mass. 2023) (upholding a liquidated damages clause in a commercial lease and requiring the tenant to pay the rest of the rent for the entire lease term).
In contrast, a Colorado court recently extended the duty to mitigate damages to commercial leases and even applied the doctrine in the face of a liquidated damages clause that required immediate payment of the rest of the rent payments upon default by the tenant. Tremitek, LLC v. Resilience Code, LLC, 535 P.3d 1005 (Colo. Ct. App. 2023). Instead, the court reduced the liquidated damages to the amount that would have accrued had the landlord made reasonable efforts to relet the premises once the tenant abandoned the lease in the middle of the lease term.