Freedom to Contract Injunction Waivers in Commercial Leases By Holly P. Constants
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Holly P. Constants is a 2022 graduate of St. John’s University School of Law in New York, New York. Published in Probate & Property, Volume 36, No 4 © 2022 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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July/August 2022
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enerally, contract law allows parties the freedom to waive their rights, including the right to seek injunctive relief in advance of any dispute between the parties. But consider a tenant that contractually waived the right to seek injunctive relief to maintain its leasehold in the event of a potential dispute over whether it breached the lease. Should the landlord be able to enforce this waiver? Jurisdictions differ on contractual waivers of injunctive rights. In 2019, the New York legislature enacted a law forbidding such injunction-waiver clauses in commercial leases and barring their enforcement. N.Y. Real Prop. Law § 235-h (McKinney 2019). This legislation changes common law, in which such waivers would be enforceable. 159 MP Corp. v. Redbridge Bedford, L.L.C., 33 N.Y.3d 353, 363 (2019), superseded by statute, N.Y. Real Prop. Law § 235-h (McKinney 2019). Other jurisdictions, such as California, generally permit and enforce injunction waivers. See, e.g., Cal. Civ. Code § 3513 (West). This article addresses the enforceability of injunction waivers, using commercial leases as an example. First, the article provides a general background on injunctive relief, focusing on a unique type of injunctive relief
