In Massachusetts, following the default of a Tenant, a Landlord is entitled to pursue damages against the defaulting Tenant. However, a Landlord is not typically entitled to recover damages, such as lost rent, to the extent that they could have been avoided by the Landlord using reasonable efforts to mitigate those damages. The interpretation of what reasonable efforts entail is often dependent on the facts in any given case, but typically a Landlord must use some type of effort to relet the premises, such as listing or advertising the premises as available, and entertaining or accepting any serious offers from third parties to relet the premises.

However, if a lease contains a liquidated damages provision, even where it permits a Landlord to recover damages equal to all future rent that otherwise would have been owing under the lease, the Massachusetts Courts have recently held that such a remedy is enforceable without taking into consideration (or requiring) a Landlord’s efforts to mitigate its damages. Landlords may now seek to enforce properly drafted rent acceleration remedies, and not be required to take any steps to mitigate their damages. This departure from the traditional rule may create unanticipated results which Tenants may deem unfair, and in some instances may put Landlords in the position of being able to collect all remaining rent under a defaulting Tenant’s lease, and either take no steps to relet the space, or instead relet the premises for the same period and collect rent again without limiting or reducing the amount they recover from the prior defaulting Tenant. Due to these recent Massachusetts decisions, both Landlords and Tenants will need to pay close attention to the negotiation of the remedy sections of their leases.