[WSBARP] WSBARP Digest, Vol 67, Issue 16

[K. Garl Long]

The first question is whether the restriction of commerce is caused by a 
voluntary decision of the individual, or is a restriction imposed by 
law. According to Proclamation 20-05 Inslee has both declared an 
emergency under RCW 43.06, and martial law under RCW 38.08. (10th 
Whereas.) Some force majeure clauses explicitly refer to martial law.

Although a governor's emergency powers under RCW 43.06 are primarily 
limited to public spaces, his martial law powers (and use of the militia 
to enforce them) are not so limited. Inslee has taken on the power of 
the legislature by promulgating law without its participation, and 
implementing it without any right of judicial review or appeal (no due 
process). The courts are barely functioning. Inslee claims the power, 
and exhibits the behavior, of a tyrant. So participation in the 
destruction of commerce is not voluntary; it is beyond the control of 
the individual.

Yes, I know, it is all for our own good. Covid kills people etc. etc. 
etc. But tyranny is always supported by a good excuse, and is always 
based upon an allegation that the ignorance, inability, or weakness of 
the people prevent them from protecting their own interest; strong 
government must be the savior of the people. (The ancient Jews demanded 
a strong King rather than judges, the ancient Greeks surrendered their 
democracy to aid the fight against Sparta, the Roman republic was short 
lived, the Germans elected Hitler, and on and on.)

Having obtained the power of a tyrant Inslee will be loath to relinquish 
it. (One who is the wisest and most just should rule, especially in a 
crises, isn't it the divine right of kings?) There does not appear to be 
any statutory limit on his ability to hold onto absolute power. His 
party controls the legislature. How can the court find he is not seeing 
that the laws are “faithfully executed” under Article III of our state 
constitution?

So, the tenants may have a good claim, and the owners may want to review 
the proceedings of the French revolution.


PS: let your blood pressure go down a bit—we all have time for due 
consideration these days.




On 04/23/2020 12:38 PM, Rob Rowley wrote:
>
> “The commercial real estate sector is taking a hit as business 
> shutdowns and significant cash flow declines force some companies to 
> miss their rent payments, while some in the industry contend that 
> businesses are choosing not to pay. Dave Black, CEO with Spokane-based 
> commercial real estate company NAI Black, says the company has 
> received letters from most of its national tenants stating that the 
> companies didn’t intend to pay rent this month, even if they were 
> still operating.” 
> https://www.spokanejournal.com/local-news/many-national-tenants-opt-not-to-pay-april-rents/
>
> 	
>
> *Robert R Rowley*
> Attorney & Counselor at Law
> (509) 252-5074 <tel:%28509%29%20252-5074> (509) 994-1143 
> <tel:%28509%29%20994-1143>
> (509) 928-3084 <fax:%28509%29%20928-3084> rowleylegal.com 
> <http://www.rowleylegal.com/>
> rob at rowleylegal.com <mailto:rob at rowleylegal.com>
> Helping You Protect What Matters Most
> <https://www.facebook.com/rowleylegal><https://www.twitter.com/ROBERTRROWLEY>
>
> /Practice concentrated on business, real estate and general legal 
> matters in Washington and Idaho. /
>
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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 *Tom Lee
> *Sent:* Thursday, April 23, 2020 12:21 PM
> *To:* wsbarp at lists.wsbarppt.com <mailto:wsbarp at lists.wsbarppt.com>
> *Cc:* Tom Lee <rtl at rtleelaw.attorney>
> *Subject:* Re: [WSBARP] WSBARP Digest, Vol 67, Issue 16
>
> 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 . 
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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 
> <mailto: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 
> <mailto:nestor at pplsweb.com>)
>    6. Re: Excise tax Dissolution (Inge Fordham)
>
>
> ----------------------------------------------------------------------
>
> Message: 1
> Date: Wed, 22 Apr 2020 12:43:44 -0700
> From: <michael at westseattleattorney.com 
> <mailto:michael at westseattleattorney.com>>
> To: "WSBA Real Property Listserv" <wsbarp at lists.wsbarppt.com 
> <mailto:wsbarp at lists.wsbarppt.com>>
> Subject: Re: [WSBARP] Lost Will
> Message-ID:
>         
> <20200422124344.c4dc0bb2a322ec24c6317f4bf97284a6.ee6faa81e8.wbe at email21.godaddy.com 
> <mailto:20200422124344.c4dc0bb2a322ec24c6317f4bf97284a6.ee6faa81e8.wbe at email21.godaddy.com>>
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>
> ------------------------------
>
> Message: 2
> Date: Wed, 22 Apr 2020 14:05:56 -0700
> From: "Robert West" <rwest at westlawoffices.com 
> <mailto:rwest at westlawoffices.com>>
> To: <wsbarp at lists.wsbarppt.com <mailto:wsbarp at lists.wsbarppt.com>>
> Subject: [WSBARP] Use of TEDRA to defeat legacy trust
> Message-ID: <012801d618e9$d0c16470$72442d50$@westlawoffices.com 
> <mailto:012801d618e9$d0c16470$72442d50$@westlawoffices.com>>
> Content-Type: text/plain; charset="us-ascii"
>
>
>
> 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 
> <mailto:rwest at westlawoffices.com>
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> <http://www.WestLawOffices.com>
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> ------------------------------
>
> Message: 3
> Date: Thu, 23 Apr 2020 02:02:43 +0000
> From: Andrew Hay <andrewhay at washingtonlaw.net 
> <mailto:andrewhay at washingtonlaw.net>>
> To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com 
> <mailto:wsbarp at lists.wsbarppt.com>>
> Subject: [WSBARP] Retail Tenants and Commercial Frustration
> Message-ID:
>         
> <BY5PR13MB3173F74E81D73BDAB978838EB2D30 at BY5PR13MB3173.namprd13.prod.outlook.com 
> <mailto:BY5PR13MB3173F74E81D73BDAB978838EB2D30 at BY5PR13MB3173.namprd13.prod.outlook.com>>
>
> Content-Type: text/plain; charset="utf-8"
>
> 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%3chttp:/www.washingtonlaw.net/>>
> andrewhay at washingtonlaw.net<mailto:andrewhay at washingtonlaw.net 
> <mailto:andrewhay at washingtonlaw.net%3cmailto: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 <mailto:ram at pacific-ci.com>>
> To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com 
> <mailto:wsbarp at lists.wsbarppt.com>>,
> andrewhay at washingtonlaw.net <mailto:andrewhay at washingtonlaw.net>
> Subject: Re: [WSBARP] Retail Tenants and Commercial Frustration
> Message-ID: <0393BD8E-3233-40E0-BC94-2F616856A227 at pacific-ci.com 
> <mailto:0393BD8E-3233-40E0-BC94-2F616856A227 at pacific-ci.com>>
> Content-Type: text/plain; charset="utf-8"
>
> 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>
>
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>
> > On Apr 22, 2020, at 7:02 PM, Andrew Hay <andrewhay at washingtonlaw.net 
> <mailto: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> 
> <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
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> ------------------------------
>
> Message: 5
> Date: Thu, 23 Apr 2020 10:15:27 -0700
> From: <nestor at pplsweb.com <mailto:nestor at pplsweb.com>>
> To: "'WSBA Real Property Listserv'" <wsbarp at lists.wsbarppt.com 
> <mailto:wsbarp at lists.wsbarppt.com>>
> Subject: [WSBARP] Excise tax Dissolution
> Message-ID: <011901d61992$c91a9350$5b4fb9f0$@pplsweb.com 
> <mailto: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 <mailto:inge at fordhamlegal.com>>
> To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com 
> <mailto:wsbarp at lists.wsbarppt.com>>
> Subject: Re: [WSBARP] Excise tax Dissolution
> Message-ID: <BDED2B9C-0627-4F52-87A3-54C9C0384129 at fordhamlegal.com 
> <mailto: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%3chttp:/www.fordhamlegal.com>>
>
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> From: <wsbarp-bounces at lists.wsbarppt.com 
> <mailto:wsbarp-bounces at lists.wsbarppt.com>> on behalf of 
> "nestor at pplsweb.com <mailto:nestor at pplsweb.com>" <nestor at pplsweb.com 
> <mailto:nestor at pplsweb.com>>
> Reply-To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com 
> <mailto:wsbarp at lists.wsbarppt.com>>
> Date: Thursday, April 23, 2020 at 10:18 AM
> To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com 
> <mailto: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
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