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The Enforceability of Liquidated Damages Clauses in Real Estate Leases
Parties to real estate leases, as with parties to commercial contracts generally, sometimes anticipate situations where a breach would result in damages that, while significant, may not be quantifiable. In lieu of the seemingly impossible task of establishing actual damages in such circumstances, parties negotiating a lease often insist upon liquidated damages clauses fixing the amount of damages to be paid upon the occurrence of a given breach.
Clauses and the Courts
Courts have long recognized the rights of parties to agree to liquidated damages clauses, and such clauses are frequently upheld in the face of legal challenges by the breaching party. However, courts will declare liquidated damages clauses unenforceable if, instead of awarding an approximation of damages to non-breaching parties, they impose “penalties” upon breaching parties. This article discusses when a court will uphold a liquidated damages clause in a real estate lease, or strike the clause down as a penalty.
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