Cummings Properties, LLC v. National Communications Corp., 449 Mass. 490 (2007)

In the present case, the lease provides for rent acceleration if National defaults in the “payment of the security deposit, rent, taxes, or any substantial invoice for goods and/or services,” defaults that the parties agreed warranted the application of the rent acceleration clause. We concern ourselves, however, only with the default in the payment of rent and need not decide whether the parties’ agreement in the lease that other types of defaults were “significant” is determinative of whether that provision would be enforceable for the breach of any or all of them. It is apparent from the stipulation, and National has not produced evidence to the contrary, that at the time the lease was entered into, the parties could not have foreseen when in the lease term a breach for nonpayment of rent would occur, what the commercial rental market would be at that time, or what the cost of finding another tenant and the length of time the property might remain vacant might be. In addition, to the extent that the liquidated damages amount represented the agreed rental value of the property over the remaining Ufe of the lease, decreasing *497in amount as the lease term came closer to expiration, it appears to be a reasonable anticipation of damages that might accrue from the nonpayment of rent.9 In contrast, the trial record reflects only an assertion by National that the liquidated damages provision was an unenforceable penalty as a matter of law. As the party contesting its validity, National has failed to satisfy its burden to show that the liquidated damages clause is a penalty, see TAL Fin. Corp. v. CSC Consulting, Inc., 446 Mass. 422, 430 (2006), that is, that the amount it agreed to pay was disproportionate to any reasonable estimate of likely damages at the time the lease was executed.