## Facts

- A landlord and tenant entered a 12-month lease-purchase agreement for a mixed-use building, with closing to occur at the end of the lease term.
- The tenant paid $15,000 at execution, to be credited toward the purchase price if the sale closed; if the tenant failed to fulfill any agreement conditions, the landlord could retain the $15,000 as liquidated damages.
- The agreement required the tenant to maintain the premises, make repairs, and surrender the property in the same condition as received (ordinary wear and tear excepted), and it restricted unauthorized improvements or changes.
- At the end of the lease term, the tenant notified the landlord she would not purchase the property.
- The landlord alleged the tenant left damage beyond ordinary wear and tear and sued under Missouri’s anti-waste statute seeking treble damages.
- The trial court found statutory waste, determined repair damages of roughly $11,000, and entered a trebled judgment of $33,760.35.

## Issues

1. Whether the $15,000 liquidated-damages clause constituted a “special license in writing to commit waste” or otherwise waived the landlord’s statutory claim for treble damages under Mo. Rev. Stat. § 537.420.
2. Whether the tenant could obtain a set-off of the $15,000 payment against the treble-damages judgment when set-off was not pleaded or requested in the trial court.

## Decision

- The court affirmed the judgment for the landlord.
- The liquidated-damages clause did not constitute a written license to commit waste and did not waive the landlord’s statutory right to treble damages.
- The tenant was not entitled to a set-off because the issue was not preserved for appellate review.

## Legal Principles

- Under Mo. Rev. Stat. § 537.420, a tenant for a term of years who commits waste is liable for treble damages unless the tenant was given a special license in writing to commit waste.
- A general liquidated-damages provision, without express authorization to damage the premises, is not a “special license in writing to commit waste,” especially where the contract imposes duties to maintain and return the property in good condition (ordinary wear and tear excepted).
- A liquidated-damages clause is not treated as an exclusive remedy displacing statutory rights absent clear contractual language.
- Set-off is an affirmative claim that must be timely raised and preserved in the trial court; it cannot be asserted for the first time on appeal.

## Conclusion

The court held that the lease-purchase agreement’s $15,000 liquidated-damages clause neither authorized waste nor waived the landlord’s statutory treble-damages remedy, and it refused to consider a set-off because the tenant failed to preserve that claim in the trial court.


Brizendine v. Conrad, 71 S.W.3d 587 (Mo. 2002)