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An Exculpatory Clause Is Not a 'Get Out of Jail Free' Card
Until recently, it appeared that exculpatory clauses could exonerate a party from liability under all circumstances. According to case precedent, in a landord/tenant context, it seemed as though a landlord need only cite economic self-interest as the basis for its non-performance under the lease agreement and enforce the exculpatory clause against its tenant, thereby limiting the tenant's remedies to specific performance, injunctive relief, and/or arbitration.
The purpose of an exculpatory clause is to limit the landlord's liability for monetary damages in the event of the landlord's non-performance under the lease agreement. Essentially, the exculpatory clause prevents the tenant from claiming monetary damages for lost income, loss of profits, and/or loss of business. While it is common business practice in commercial leasing to use an exculpatory clause, 'it is well settled that a commercial lease represents a 'valuable property interest' for which equitable protection is available.' (Banc of America Securities LLC v. Solow Building Company II, L.L.C. No. 9931 slip op. 09545 (N.Y.App. Div. Dec. 4, 2007) ('Solow')). Accordingly, the tenant's property rights can be severely handicapped if the landlord's conduct remains unrestricted.
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