In June 2025, an Ohio appeals court upheld a $4.6 million judgment against a fitness chain that had walked away from its lease.[1] Ohio is a state that normally requires landlords to make a reasonable effort to relet vacated space before collecting the rest of the rent from a defaulted tenant. The landlord in that case made no such effort. It didn’t need to: the lease said, in plain language, that the landlord had “no obligation to relet the Leased Premises.” The court enforced the sentence as written.
That sentence is not unusual. Versions of it sit in the remedies section of a large share of landlord-drafted commercial leases, right around the default and damages provisions, and it settles a question most tenants never think to ask until they’re already trying to get out of a space.
Whether a landlord has to try re-letting your old space depends first on your state, and then on whether your lease already answered the question for you.
States are split on the default rule, and the split is real. Pennsylvania’s Supreme Court held in 1998 that a commercial landlord has no duty to mitigate at all: it can leave a space dark for the rest of the term and sue for every month of rent.[2] Maryland’s highest court reached the opposite conclusion in 2003, overturning its own older precedent to hold that landlords must take reasonable steps to relet.[3] The Fourth Circuit has since clarified what “reasonable” means in practice: commercially reasonable marketing effort, not preferential treatment of the vacant unit over the landlord’s other space.[4] Ohio, Colorado, Texas, and California are generally in the mitigation-required camp; Pennsylvania, Massachusetts, and a handful of others are not.
In a mitigation-required state, the duty can still get you a reduced judgment, not a small one. A Colorado appeals court ruled in 2023 that a landlord’s liquidated damages clause, which would have paid out the full remaining rent with no credit for a replacement tenant, was unenforceable, because it assumed a scenario (no possible replacement tenant) the record didn’t support.[5] That’s a real win for the tenant on paper. It’s also a case that took years and an appeal to resolve, over a dispute that a differently drafted clause would have settled at signing.
A waiver clause skips both fights. Courts in mitigation-required states have enforced lease language that hands the landlord an explicit exemption, on the theory that two sophisticated commercial parties agreed to allocate that risk on purpose.[1] The Ohio case is the clearest recent example: the state’s default rule required mitigation, the lease said otherwise, and the lease won.
None of this is about which rule is fairer. It’s about which document controls, and for most leases in default-rule states, that’s not the state’s common law. It’s whichever party wrote the remedies section first and thought to put a mitigation clause in it, which in a landlord-drafted lease is almost always the landlord.
The same logic runs the other way for a tenant who negotiates from a position to ask for it: an express requirement that the landlord market the space in good faith, an offset provision crediting new rent against what the tenant still owes, or a cap limiting exposure to some number of months rather than the balance of the term. None of that requires the state to have a mitigation-friendly default rule. It requires getting the language into the lease before signature, the same way a landlord already got the opposite language in.
The stakes here run in the same direction as what happens when a tenant pays to exit a lease outright: both are ways of pricing what it costs to leave early, one through a negotiated fee and the other through whatever the remedies section already decided about damages. A tenant who negotiates the termination fee hard and never reads the mitigation language has priced half the exit and left the other half to whichever way the boilerplate happened to fall.
Checking a portfolio for what the remedies section already decided#
The problem for a legal or leasing team managing more than a handful of leases isn’t understanding that mitigation clauses exist. It’s knowing, across a portfolio signed over a decade in a dozen jurisdictions, which leases already have a waiver, which ones are silent and therefore governed by whatever the state’s default rule turns out to be, and which ones have tenant-favorable language a broker negotiated three renewals ago. Acrebase extracts the exact default-and-remedies language from every lease in a portfolio and flags which ones carry a mitigation waiver, an affirmative mitigation obligation, or nothing at all, tracing each answer back to the source clause rather than a memo someone wrote once.
It also applies a firm’s approved clause library automatically, so a landlord’s standard mitigation waiver, or a tenant’s standard carve-out asking for one, gets proposed the same way on every deal instead of depending on who drafted that particular lease. Its AI, trained on a firm’s own negotiation history, can flag when a counterparty’s mitigation language matches a pattern the firm has litigated before it gets signed rather than after.
If you’re a tenant, ask whether your lease has a mitigation waiver before you assume your state’s default rule protects you if you ever have to walk. If you’re a landlord relying on one, make sure the waiver language is explicit and unambiguous. Courts have enforced these clauses when they’re clear and struck them down, or fought over them for years, when they’re not.
Footnotes
[1] CSRA Columbus OH Fitness Master Lessee, L.L.C. v. Fitness & Sports Clubs, L.L.C., 2025-Ohio-2645 (Ohio Ct. App., 5th Dist., June 2025) — appeals court upheld a $4.6 million judgment for a landlord where the lease stated the landlord had “no obligation to relet the Leased Premises,” despite Ohio’s general rule requiring commercial landlords to mitigate. https://www.mcdonaldhopkins.com/insights/news/mitigation-matters-the-power-of-clear-lease-language
[2] Stonehedge Square Ltd. P’ship v. Movie Merchants, Inc., 715 A.2d 1082 (Pa. 1998) — Pennsylvania Supreme Court held a commercial landlord has no common-law duty to mitigate damages after a tenant’s default. https://caselaw.findlaw.com/court/pa-supreme-court/1417003.html
[3] Circuit City Stores, Inc. v. Rockville Pike Joint Venture Ltd. P’ship, 376 Md. 331 (2003) — Maryland’s highest court held commercial landlords have an obligation to mitigate damages when seeking to recover rent from a defaulted tenant, departing from the older no-duty rule of Wilson v. Ruhl, 277 Md. 607 (1976). https://www.gfrlaw.com/what-we-do/insights/commercial-landlord%E2%80%99s-duty-mitigate-damages-upon-tenant%E2%80%99s-breach-lease
[4] NCO Financial Systems, Inc. v. Montgomery Park, LLC, No. 17-2226 (4th Cir. Mar. 15, 2019) — clarified that a landlord’s duty to mitigate requires commercially reasonable marketing efforts, not preferential treatment of the vacant space over the landlord’s other available units. https://www.gfrlaw.com/what-we-do/insights/commercial-landlord%E2%80%99s-duty-mitigate-damages-upon-tenant%E2%80%99s-breach-lease
[5] Tremitek, LLC v. Resilience Code, LLC, 2023 COA 54 (Colo. App. 2023) — Colorado Court of Appeals held a liquidated damages clause unenforceable where it paid out full remaining rent without crediting the property’s reasonable rental value, an outcome only justified if the parties had reasonably anticipated no replacement tenant could be found. https://cl.cobar.org/from-the-courts/tremitek-llc-v-resilience-code-llc/
Acrebase is AI-powered contract intelligence for commercial real estate — clause extraction, risk flagging, and portfolio-wide search, plus tools for maintaining a consistent clause library and negotiation playbook across every deal a team runs. Learn more at acrebase.com, or get in touch about pricing.