[WSBARP] WSBARP Digest, Vol 67, Issue 16
Tom Lee
tlee at kerrlawgroup.net
Thu Apr 23 12:20:45 PDT 2020
Andrew -
Glad to see your post, this issue is coming up a lot in my realm, too. I just wrote a blog post addressing force majeure, which also addresses the commercial landlord-tenant context.
https://rtleelaw.attorney/2020/04/23/no-michael-you-cannot-declare-force-majeure-force-majeure-and-covid-19-contract-issues/
I agree with your framework. If interested, please see my comments in the above-link where I emphasize that economic hardship should not be confused with force majeure.
Best,
TOM LEE
Contract Attorney
KERR FERGUSON LAW, PLLC | Attorneys at Law | A Professional Limited Liability Company
*: tlee at kerrlawgroup.net<mailto:tlee at kerrlawgroup.net> | *: 509.735.1542 | 7: 509.735.0506 | *: 7025 W. Grandridge Blvd. Suite A . Kennewick . Washington . 99336
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Subject: WSBARP Digest, Vol 67, Issue 16
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Today's Topics:
1. Re: Lost Will (michael at westseattleattorney.com)
2. Use of TEDRA to defeat legacy trust (Robert West)
3. Retail Tenants and Commercial Frustration (Andrew Hay)
4. Re: Retail Tenants and Commercial Frustration (Roger Moss)
5. Excise tax Dissolution (nestor at pplsweb.com)
6. Re: Excise tax Dissolution (Inge Fordham)
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Message: 1
Date: Wed, 22 Apr 2020 12:43:44 -0700
From: <michael at westseattleattorney.com>
To: "WSBA Real Property Listserv" <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Lost Will
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Message: 2
Date: Wed, 22 Apr 2020 14:05:56 -0700
From: "Robert West" <rwest at westlawoffices.com>
To: <wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] Use of TEDRA to defeat legacy trust
Message-ID: <012801d618e9$d0c16470$72442d50$@westlawoffices.com>
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Decedent had executed a legacy trust providing for the annual distribution
of 70% of the net income to six beneficiaries for up to 35 years, coupled
with a restriction on invasion of the corpus for supplemental care,
education, etc. The trust provides that 30% of the net income is to be
reinvested annually. All beneficiaries would prefer to have the trust
terminated and distributed in full. It seems that goal could be
accomplished through a TEDRA agreement signed by all beneficiaries.
Thoughts or comments would be appreciated.
Robert E. West, Jr.
WEST LAW OFFICES, P.S.
Attorneys at Law
332 1st Street NE
Auburn WA 98002
Telephone: 253-351-9000
Facsimile: 253-833-5322
E-mail: <mailto:rwest at westlawoffices.com> rwest at westlawoffices.com
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Message: 3
Date: Thu, 23 Apr 2020 02:02:43 +0000
From: Andrew Hay <andrewhay at washingtonlaw.net>
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] Retail Tenants and Commercial Frustration
Message-ID:
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This is probably coming up for many folks, especially with retail clients.
My initial legal framework for this is
Is there a force majeure clause in the lease?
Does the pandemic and/or its restrictions qualify for commercial frustration or impracticability of performance?
Does force majeure or commercial frustration/impracticability defense help the individual guarantors?
For handling this problem
Informal discussion with LL ? first step
Formal mediation second ? 2nd
Litigation or arbitration - 3rd
Does this seem sound? How strong is a commercial frustration or impracticability argument for this pandemic?
Andrew Hay
Hay & Swann PLLC
201 S. 34th St.
Tacoma, WA 98418
www.washingtonlaw.net<http://www.washingtonlaw.net/<http://www.washingtonlaw.net<http://www.washingtonlaw.net/>>
andrewhay at washingtonlaw.net<mailto:andrewhay at washingtonlaw.net>
253.272.2400 (w)
253.377.3085 (c)
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Message: 4
Date: Wed, 22 Apr 2020 20:02:22 -0700
From: Roger Moss <ram at pacific-ci.com>
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>,
andrewhay at washingtonlaw.net
Subject: Re: [WSBARP] Retail Tenants and Commercial Frustration
Message-ID: <0393BD8E-3233-40E0-BC94-2F616856A227 at pacific-ci.com>
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Andrew, I commend you for thinking holistically, creatively, and with an eye on using professional neutrals to navigate these issues in commercial leasing.
Here?s my template:
1. The moratoria operating in many jurisdictions covering residential and commercial scenarios alike are first and foremost a call for tenants and landlords to slow down, avoid precipitous action, take stock of circumstances, and work on solutions together. With rare exceptions they point to rent deferment not abatement; it has amazed me to see how confusion there is on that point.
2. For commercial leases, I point to force majeure clauses and especially destruction of premises provisions (particularly in retail) as themes to organize conversation - for over 100 years, rent abatement has been an accepted remedy when external forces make retail spaces unusable. I do not hold that these provisions can be applied legally to the pandemic, but I have gotten people talking productively by reminding them the idea is sound. It is an industry practice.
3. Innovative mediated approaches guided by a leasing expert should be deployed as early as possible, when they can deliver the most value.
There is a cohort of specially trained mediators working on these issues in California and the Northwest including in BC. Let me know if you?d like to be connected with them. We have also been doing presentations on best practices for tenants and landlords in addressing commercial leasing tensions and disputes animated by COVID. All the work is being done quickly, and entirely online which is standard practice for those of us involved.
Thank you Andrew for your thoughtful posting.
Roger A. Moss, Esq.
Pacific Conflict Intervention
206.790.1971 Seattle
415.371.9724 San Francisco
www.pacific-ci.com<http://www.pacific-ci.com>
Confidentiality Notice: The information in this e-mail (including attachments, if any) is considered confidential and is intended only for the recipient(s) listed above. Any review, use, disclosure, distribution or copying of this e-mail is prohibited except by or on behalf of the intended recipient. If you have received this email in error, please notify me immediately by reply email, delete this email, and do not disclose its contents to anyone.
> On Apr 22, 2020, at 7:02 PM, Andrew Hay <andrewhay at washingtonlaw.net> wrote:
>
> This is probably coming up for many folks, especially with retail clients.
>
> My initial legal framework for this is
>
> Is there a force majeure clause in the lease?
>
> Does the pandemic and/or its restrictions qualify for commercial frustration or impracticability of performance?
>
> Does force majeure or commercial frustration/impracticability defense help the individual guarantors?
>
> For handling this problem
>
> Informal discussion with LL ? first step
> Formal mediation second ? 2nd
> Litigation or arbitration - 3rd
>
> Does this seem sound? How strong is a commercial frustration or impracticability argument for this pandemic?
>
>
> Andrew Hay
> Hay & Swann PLLC
> 201 S. 34th St.
> Tacoma, WA 98418
> www.washingtonlaw.net<http://www.washingtonlaw.net> <http://www.washingtonlaw.net/>
> andrewhay at washingtonlaw.net <mailto:andrewhay at washingtonlaw.net>
> 253.272.2400 (w)
> 253.377.3085 (c)
> THIS IS A CONFIDENTIAL COMMUNICATION AND IS INTENDED FOR THE DESIGNATED RECIPIENT ONLY. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY THE SENDER IMMEDIATELY AND DESTROY ALL COPIES
>
>
>
> ***Disclaimer: Please note that RPPT listserv participation is not restricted to practicing attorneys and may include non-practicing attorneys, law students, professionals working in related fields, and others.***
>
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Message: 5
Date: Thu, 23 Apr 2020 10:15:27 -0700
From: <nestor at pplsweb.com>
To: "'WSBA Real Property Listserv'" <wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] Excise tax Dissolution
Message-ID: <011901d61992$c91a9350$5b4fb9f0$@pplsweb.com>
Content-Type: text/plain; charset="us-ascii"
PC was divorced from wife last year. The judgment or decree allowed one
spouse to reside and pay rent/ expenses and one PC can refinance and buy out
the former spouse for 40% of the net value. They agreed on a set amount for
buyout. I just want to confirm that WAC 458-61A-203 exempts this from Excise
tax, and if so do we need to file a certified copy of the Divorce Order or
just refer to it in the comments of the REETA.
Thanks.
Nestor Gorfinkel, Attorney at Law
Licensed in Washington & Florida
Florida Civil-Law (International) Notary
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Message: 6
Date: Thu, 23 Apr 2020 17:50:16 +0000
From: Inge Fordham <inge at fordhamlegal.com>
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Excise tax Dissolution
Message-ID: <BDED2B9C-0627-4F52-87A3-54C9C0384129 at fordhamlegal.com>
Content-Type: text/plain; charset="utf-8"
Yes, provided the transfer is as agreed upon in a settlement agreement or decree of dissolution, you can cite WAC 458-61A-203 and put the explanation in the comments. A certified copy of the decree is not necessary. (In contrast, for transfers under a probated will, for example, you must submit a certified copy of the letters testamentary, which requirement is specifically stated in the WAC.)
[uc%3fexport=download&id=1W3rEcChy0_E0cCfV5up02mkhwnL6eWIs&revid=0B4P5JoIHdbFaR29EbHlRWHFseFV5STZpSUVGeUNPWldkVDFVPQ]
Inge A. Fordham | Attorney
Fordham Law, PLLC
3218 Sixth Avenue | Tacoma, WA 98406
Office: (253) 348-2657 | Mobile: (206) 778-3131
www.fordhamlegal.com<http://www.fordhamlegal.com<http://www.fordhamlegal.com<http://www.fordhamlegal.com>>
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From: <wsbarp-bounces at lists.wsbarppt.com> on behalf of "nestor at pplsweb.com" <nestor at pplsweb.com>
Reply-To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Date: Thursday, April 23, 2020 at 10:18 AM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] Excise tax Dissolution
PC was divorced from wife last year. The judgment or decree allowed one spouse to reside and pay rent/ expenses and one PC can refinance and buy out the former spouse for 40% of the net value. They agreed on a set amount for buyout. I just want to confirm that WAC 458-61A-203 exempts this from Excise tax, and if so do we need to file a certified copy of the Divorce Order or just refer to it in the comments of the REETA.
Thanks.
Nestor Gorfinkel, Attorney at Law
Licensed in Washington & Florida
Florida Civil-Law (International) Notary
ATTENTION - This e-mail message and any attachment to this e-mail message may contain confidential information that is legally privileged. If you are not the intended recipient, you must not review, retransmit, convert to hard copy, copy, use or disseminate this e-mail or any attachments to it. If you have received this e-mail in error, please notify us immediately by return e-mail or by telephone at the phone numbers provided herein and delete this message. Please note that if this e-mail message contains a forwarded message or is a reply to a prior message, some or all of the contents of this message or any attachments may not have been produced by the sender.
P Please consider the environment before printing this e-mail.
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