The Mitigation Myth: Why Landlords Aren’t Always Required to Re-Rent

Many tenants assume that if they break a lease, the landlord must immediately find a new tenant to minimize damages. But that’s not always true—especially in the commercial world. The duty to mitigate depends heavily on whether the lease is residential or commercial, and courts treat the two very differently.

Residential Leases: The Duty Is Real

In residential leases, New York and New Jersey law impose a duty to mitigate. That means if a tenant moves out early, the landlord must make reasonable efforts to re-rent the property and reduce losses. If they sit idle, they can’t claim full rent from the tenant. This reflects a policy goal: protecting individuals who may not have equal bargaining power.

Commercial Leases: Freedom to Contract

Commercial leases are treated as contracts between sophisticated parties. Courts often allow landlords to include clauses that waive the duty to mitigate. If the lease says the landlord has no obligation to re-let, courts in both NY and NJ generally enforce it. Even without an explicit clause, some courts find no duty at all.

That means a commercial tenant who vacates early may still owe the full rent for the entire term—whether or not the landlord tries to re-rent the space.

Why It Matters

• Residential tenants gain legal protection but still face claims for unpaid rent if they don’t communicate or return keys properly.
• Commercial tenants must read their leases carefully—mitigation rights can be waived in a single sentence buried deep in the contract.

How to Protect Yourself

• Negotiate Mitigation Language: Commercial tenants should insist on a clause requiring reasonable efforts to re-let.
• Document Turnover: Return keys, provide notice, and confirm surrender to start the mitigation clock.
• Consult Counsel: Both landlords and tenants need clarity before assuming what the law requires.

Bottom Line

The duty to mitigate isn’t universal. In residential leases, it’s law. In commercial leases, it’s a matter of contract. Don’t assume your landlord—or tenant—has to take action after a breach. The language in the lease controls.

At JDE Law Firm, PLLC, I help landlords and tenants understand their rights and obligations before disputes turn costly.

📞 NY: 718-966-0877 | NJ: 732-490-7120

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