Mechanism 11

Defeating a failure-to-mitigate defense

How do you beat a failure-to-mitigate defense in a Texas commercial lease case?

With the marketing file, not with argument. Texas landlords have a duty to make reasonable efforts to relet, and the tenant bears the burden of proving a failure to mitigate and the resulting reduction in damages. Producing every listing, campaign, showing and replacement lease collapses the defense on documents rather than on credibility.

By John P. Henry · Tex. Prop. Code § 91.006; Austin Hill Country Realty v. Palisades Plaza, 948 S.W.2d 293 (Tex. 1997) · Reviewed 2026-08-02

The authority

A landlord has a duty to mitigate damages if a tenant abandons the leased premises in violation of the lease. — Tex. Prop. Code § 91.006(a)Tex. Prop. Code § 91.006; Austin Hill Country Realty v. Palisades Plaza, 948 S.W.2d 293 (Tex. 1997)

Tex. Prop. Code § 91.006; Austin Hill Country Realty v. Palisades Plaza, 948 S.W.2d 293 (Tex. 1997)

When it applies

Every abandoned commercial lease. It is the defense of first resort because it costs the tenant nothing to plead, and it survives only where the landlord cannot document what it actually did.

How it is proved up

Assemble the full marketing file from the date of abandonment forward: listing agreements, MLS and CoStar entries, brokerage engagement, signage, email campaigns with send dates and recipient counts.
Produce the showing log and the inquiries that came to nothing. Efforts that failed still prove reasonableness.
Put in the replacement leases — executed, with commencement dates and rates — and credit the rent actually received against the claim so the number the court sees is already net.
Where a sublease was proposed, produce the landlord's consent. Consent granted is the end of the argument that the landlord obstructed.
Keep the burden where it belongs: the tenant must prove both the failure and the amount by which damages should be reduced.

What defeats it

A genuine gap in the record — months with no listing, no broker, no activity.
Refusal of a qualified replacement tenant without a defensible reason.
Re-leasing at a below-market rate without explanation, which invites an argument about the credit rather than the effort.

Where I have used it

Non-profit tenant, Williamson County. Answered with commercial listings, six email marketing campaigns, an executed landlord's consent to sublease, and two executed replacement leases for the same suites.

Questions

Who has the burden of proving failure to mitigate in Texas?

The tenant. Under Austin Hill Country Realty v. Palisades Plaza and Tex. Prop. Code § 91.006, the tenant must prove that the landlord failed to make reasonable efforts to mitigate and the amount by which damages should be reduced.

Can a commercial lease waive the duty to mitigate in Texas?

Section 91.006(b) provides that a provision of a lease purporting to waive a right or exempt a landlord from a liability or duty under the section is void.

What counts as reasonable efforts to relet commercial premises?

There is no fixed list. Courts look at what the landlord actually did — listing, engaging a broker, advertising, showing the space, considering qualified prospects — measured against what a reasonably prudent landlord would do under similar circumstances.