Pop Quiz: Is Liquidated Damages Clause for Radius Violation Enforceable?
Liquidated damages clauses can be a convenient way to incentivize performance and avoid disputes over the price tag of breaches. One common use of such clauses is to require the tenant to pay predetermined rent increases in the event it violates a covenant not to open a competing business within a specific radius of the leased property. But getting courts to enforce such a provision can be difficult, as illustrated by the scenario below.
The steakhouse chain Del Frisco’s (DF) leases space for a restaurant in a mixed-use commercial development in Texas. The lease bans DF from operating a “Competing Business” within a five-mile radius of the property. Anticipating losses of about $350,000 in the event of a breach, the landlord provides for rent escalations in the event DF opens and continues to operate a Competing Business in the restricted radius of:
- 110 percent of the minimum base rent; and
- Percentage rent based on 125 percent of gross sales (which escalates to 175 percent if the Competing Business is within a two-mile radius).
After laying out the escalation formula, the lease includes the following clause:
The above adjustment in rental reflects the estimate of the parties as to the damages which Landlord would be likely to incur by reason of the diversion of business and customer traffic from the Demised Premises and Project to such other store within the Restricted Area, as a proximate result of the establishment of a Competing Business.
Less than six months after signing the lease, the tenant leases property for a DF Grille in a competing mixed-use complex less than two miles away. The landlord gets wind of the new lease and demands that DF pay the adjusted rent for opening a Competing Business. DF refuses. The new restaurant isn’t a Competing Business, it insists. And even if it were, the rent adjustment clause is an unenforceable liquidated damages provision.
Assuming the new restaurant is a Competing Business, does DF have to pay the rent increase?
A. No, because the rent increase is an impermissible penalty.
B. Yes, because the adjustment amount is a reasonable estimate of the landlord’s damages.
C. No, because liquidated damages clauses are illegal in Texas.
D. Yes, because the Competing Business ban is a valid restriction on the tenant’s use of the property.
A. The rent adjustment is invalid because it operates as an impermissible penalty.
Rule of thumb: Liquidated damages clauses are enforceable only if they reasonably estimate the losses that the non-breaching party would incur as a result of the other party’s breach; they’re unenforceable if they impose a penalty on the party committing the breach. The landlord in this scenario, which is based on an actual case called The Shops at Legacy (RPAI) L.P. v. Del Frisco's Grille of Tex., LLC (2020 Tex. App. LEXIS 6571), clearly understood the rules and tried to draft the rent adjustment clauses accordingly. But it didn’t work.
The landlord’s first mistake was characterizing the rent adjustment as an estimate of the “damages” it would likely incur if DF opened a Competing Business nearby. This cut the legs out from the landlord’s claim that the increase was nothing more than a mutually agreed-to rent adjustment. “Calling the damages a ‘rent adjustment’ does not change” the fact that the landlord’s clear intent was to make DF pay damages to compensate for its anticipated losses to its businesses, the court reasoned. So, A is the right answer.
WHY WRONG ANSWERS ARE WRONG
B is wrong because there was no evidence supporting the landlord’s estimate that it would lose about $350,000 as a result of DF’s opening a Competing Business. In fact, DF produced evidence showing that the new restaurant had no impact on the tenant restaurant’s sales.
C is wrong because, as in most states, liquidated damages clauses are generally enforceable in Texas, provided that they represent a reasonable estimate of damages and don’t operate as a penalty. The clause in this case failed because it didn’t meet those standards.
D is wrong because while it’s true that landlords do have the right to restrict how tenants use the property, the Competing Business ban and resulting rent adjustment for breach pertained to the tenant’s parent company, namely DF and the operation of its restaurant business rather than the restaurant tenant’s actual use or occupation of the property.
For five ways to make your liquidated damages clauses more enforceable--as well as a Model Lease Clause that sets rent escalation as liquidated damages for the tenant's breach of its radius restriction, see "Is Rent Escalation Liquidated Damages Clause for Radius Clause Violation Enforceable?," available to subscribers here.