Relying Solely on An Indemnfication Provision

A recent Massachusetts appellate court opinion highlights the dangers of failing to include rent acceleration and liquidated damages provisions in commercial leases and relying solely upon an indemnification provision to collect post-termination damages. In 275 Washington Street Corp. v. Hudson River International, LLC, 81 Mass. App. Ct. 418 (2012), the Massachusetts Appeals Court held that a landlord seeking to collect damages from a breaching tenant under an indemnification provision in a commercial lease has to wait until 2018, the date on which the lease would have expired if the tenant had not breached the lease, to recover damages for the difference between the rent payable by a new tenant and the rent that would have been payable by the breaching tenant.