[WSBARP] Retail Tenants and Commercial Frustration

[nestor at pplsweb.com]

Good article.

 

Food for thought. Moving forward we will now have leases drafted with more specificity regarding government lock-downs or “Stay At Home Orders”. One thing I look at from the Landlord’s perspective is the Tenant is still an occupant of the landlord’s property with merchandise, equipment or furniture etc.  Even though the activities that generate the revenue has been frustrated, there is still that aspect that the Tenant continues to occupy the property. 

 

This will probably managed with built-in forbearance clauses for either reduced rent during the shutdown, spreading out the payments over a specified term and or extending the lease.

 

I am interested to hear what anyone has to say.

 

Thanks.

 

 

Nestor Gorfinkel, Attorney at Law

Licensed in Washington & Florida

Florida Civil-Law (International) Notary

 

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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Michael Brandt
Sent: Thursday, April 23, 2020 12:02 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Retail Tenants and Commercial Frustration

 

Andrew:

 

Here is an article on the subject that I just posted to my website:  https://brandtlawgroup.com/leases-and-contracts-in-the-age-of-a-pandemic-an-actual-event-that-may-qualify-as-a-reason-for-rent-abatement-or-termination-of-a-lease-or-contract/

 

Michael D. Brandt

BRANDT LAW GROUP

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 <http://www.brandtlawgroup.com/> www.brandtlawgroup.com 

 



 

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From: wsbarp-bounces at lists.wsbarppt.com <mailto:wsbarp-bounces at lists.wsbarppt.com>  <wsbarp-bounces at lists.wsbarppt.com <mailto:wsbarp-bounces at lists.wsbarppt.com> > On Behalf Of Andrew Hay
Sent: Wednesday, April 22, 2020 7:03 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com <mailto:wsbarp at lists.wsbarppt.com> >
Subject: [WSBARP] Retail Tenants and Commercial Frustration

 

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

 <http://www.washingtonlaw.net/> www.washingtonlaw.net

 <mailto:andrewhay at washingtonlaw.net> andrewhay at washingtonlaw.net

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